University of Alberta Faculty of Law Blog

TRC Call to Action #60: Aboriginal Beliefs and Spirituality and the Whiteman’s Gospel

We call upon leaders of the church parties to the Settlement Agreement and all other faiths, in collaboration with Indigenous spiritual leaders, Survivors, schools of theology, seminaries, and other religious training centres, to develop and teach curriculum for all student clergy, and all clergy and staff who work in Aboriginal communities, on the need to respect Indigenous spirituality in its own right, the history and legacy of residential schools and the roles of the church parties in that system, the history and legacy of religious conflict in Aboriginal families and communities, and the responsibility that churches have to mitigate such conflicts and prevent spiritual violence.

In plain simple terms Call to Action #60 is a call to train individuals in religious cultural safety, so that people of different faiths may understand each other better.^[1] This Call to Action aims to ensure churches and those Christian groups that were involved in the residential school system make a conscious and organized effort to educate their organizations on the harms of what those schools did and take an active role in respecting Aboriginal communities and their members' individual rights to practice spirituality according to the teachings of their ancestors.

Canada is a religiously pluralistic country because of its diverse population. This requires Canadians to act with tolerance and respect, including learning about each other’s faiths and beliefs, and accepting that differences can coexist. These actions can minimize or eliminate the divisiveness, hostility and prejudice seen throughout Canadian history towards Indigenous beliefs and practices associated with their spirituality.^[2]

There is a great responsibility of the church parties to mitigate the harms they caused to Indigenous peoples, and addressing these harms requires more than apologies. Our December 2, 2020 post on the Calls to Action #48 and 49 outlining the church parties apologies can be found here: https://ualbertalaw.typepad.com/faculty/2020/12/re-trc-call-to-action-48-49-settlement-agreement-parties-and-undrip.html

It is worth noting that although Pope Benedict expressed his sorrow for those who suffered at the Residential Schools, the Catholic Church has yet to issue a formal apology. This is shameful when considering that the Catholic Church ran 70% of the forced Indian Residential Schooling in Canada.^[3]   

Acknowledgements and apologies are an important first step, yet without action, they are empty words and empty promises of reconciliation. The spiritual harm and abuse that First Nations, Metis, and Inuit experienced during the era of colonial expansion require extensive education to understand the spiritual relationship with the Creator and with the Land that Indigenous peoples have. This education should include actively unlearning harmful views that place Indigenous ceremonies and practices as sinful in the eyes of God as referred to in the Anglican Church’s “Apology for Spiritual Harm”.  This apology was an excellent example of a church taking ownership.^[4] 

The arrogance of many churches resulted in grievous harm and the great loss of ceremonies and spiritual teachings that have sustained the First Peoples for generations upon generations. The intergenerational spiritual trauma created by the arrogance of many churches may begin to heal by furthering cultural education to church clergy, members, and leaders that identifies the importance of Aboriginal practices and ceremony.

Call to Action #60 is a very difficult recommendation to universally implement in Canada. It took Canada’s Supreme Court until 2017 with the Ktunaxa Nation v. British Columbia ^[5] case to issue a ruling on Indigenous religious freedom which in the end only ended up showing that the Supreme Court is unable to recognize its own colonial and culturally located position under the Charter.^[6]

There is no clear way to make it mandatory for a church organization to develop a curriculum of cultural education that would not violate their s. 2(a) Charter rights. This provision of the Charter works against Aboriginal Peoples in two ways, as previously mentioned and because protection under it requires claimants “to frame their religion in terms that are recognizable to the legal culture of Canada without reference to the colonial foundations of that very legal system or the broader colonial context of Canada”.^[7] Essentially indicating that Indigenous religious freedom, under s. 2(a), is currently an impossibility and poses a significant barrier.  

From a policy perspective, this is a very difficult recommendation for the government to implement that would be effective, it would need to work with Indigenous communities and organizations cohesively to do so and make significant changes in government policy. Moving forward, it remains up to each religious group to play its own part in working towards reconciliation through cultural education and it will be interesting to see who takes this seriously. ^[8]

Until Next Time,

Team ReconcilAction YEG

[1] Acadia University, “TRCtalk” online: <http://courseware.acadiau.ca/trctalk/category/calls/>. 

[2] Benna Crawford, “The Advantages of Religious Diversity” (29 Sept 2017), online: Classroom <classroom.synonym.com/the-advantages-of-religious-diversity-12087077.html>.

[3] CAID.ca, “Church Apologies for Indian Residential Schools”, online: <caid.ca/Dchurch_apology.html>. 

[4] Archbishop Fred Hiltz, “An Apology for Spiritual Harm” (July 12, 2019) online: <anglican.ca/news/an-apology-for-spiritual-harm/30024511/>.

[5] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16816/index.do 

[6] Nicolas Shrubsole, Policy Options, “The Impossibility of Religious Freedom”, 2017 online: The impossibility of Indigenous religious freedom (irpp.org) 

[7] Ibid

[8] TRCtalk, supra note 1, Call to Action #60. 

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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.

 

Separate But Inconvenient?

What place does separate but publicly funded religious education have in modern Canada? As mentioned in a previous post, Manitoba was the first jurisdiction in Canada to end the practice of having parallel public and Catholic school systems. People are in favour of this system for both practical and principled reasons.

In Alberta, it seems perfectly normal to have parallel school systems; however, this is no longer the norm. Only Alberta, Saskatchewan, and Ontario retain this old division. Quebec abolished it, with federal consent, in 1999.¹ The BNA Act guaranteed provinces with separate school systems the right to keep them under section 93.² Section 93’s wording allows for the abolishment of parallel schools if it is not “prejudicial”, which justified Quebec’s actions.³

A major argument in favour of abolishing the Catholic system is efficiency. The Catholic school system is not merely a set of schools, but an entirely parallel administrative system. Edmonton Public School Board Chair Michael Janz recently floated the idea of Catholic programs run by Edmonton Public Schools. The Board already has programs for other denominations of Christianity, Jewish, and Islamic schools.⁴  Janz clearly maintained that he does not want to abolish the current Catholic Boards, but does see value in not duplicating infrastructure as both types of schools are built in new suburban neighbourhoods.⁵

Michael Janz has no interest in fighting to abolish the Catholic system, but there are those who do. Albertan Parents for Unbiased Public Inclusive Learning (APUPIL) and their spokesperson, Luke Fevin, are against segregated religious education. The description on their Facebook group reads:

“A community & a resource for Albertan parents of all faiths & non-faiths that wish for the children of our communities to be educated equally & inclusively, without religious preference, segregation or exclusion.

 A group that recognizes the right of all humans to choose their faith and to practise it within the law, but that our childrens place of public education must be free of all religious bias so that all our children may be equally afforded the rights accorded to them through the Canadian Charter of Rights & Freedoms.”⁶

What is the counter-argument in favour of separate schools? Often the argument is that the fight is not worth having.⁷ Others argue that keeping Catholic schools is valuable to preserve choice in education, or to create competition.⁸ Sometimes giving people an environment that is steeped in their own religious tradition (or someone else’s religious tradition, to explore that culture) for school has value.⁹

Will Catholic School Boards remain separate in Alberta?  The tide is turning against separate schools. It is particularly difficult to justify separate schools  for one religious group, when the public system has demonstrated a willingness and ability to establish alternative programs for other groups who have not been granted the privilege of their own separate school system.

 

¹ Samantha Emann, “Canada’s Publicly Funded Religious Schools Have to Go,” Metro (14 March 2016), online: <http://www.metronews.ca/views/opinion/2016/03/14/canadas-publicly-funded-religious-schools-have-to-go.html>

² Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 93, reprinted in RSC 1985, Appendix II, No 5.

³ Supra note 1.

⁴Paula Simons, “Public School Board Chairperson Stirs Pot With His Catholic Education Proposal”, Edmonton Journal (10 February 2017), online: <http://edmontonjournal.com/opinion/columnists/paula-simons-public-school-board-chairperson-stirs-pot-with-his-catholic-education-proposal>.

⁵ The Edmonton Journal Editorial Board, “No Need for Duplicate Catholic Education”, Edmonton Journal (8 February 2017), online: <http://edmontonjournal.com/opinion/editorials/editorial-no-need-for-duplicate-catholic-education>.

⁶ A PUPIL, “Description”, posted on A PUPIL - Alberta Parents for Unbiased Public Inclusive Learning, online: Facebook <https://www.facebook.com/groups/APUPIL/>.

⁷ Supra note 5.

⁸ David Climenhaga, “Advocates for More Choice in Education Unite to Condemn Public School Board Chair’s Call for More Choice in Education”, (10 February 2017), Albertapolitics.ca (blog), online: <http://albertapolitics.ca/2017/02/advocates-choice-education-unite-condemn-public-school-board-chairs-call-choice-education/>.

⁹ Supra note 4.

Law School: How Hard can it be, Anyway?

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

Women in Law

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

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

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

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

Aboriginal and Indigenous Lawyers

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

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

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

Getting In

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

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

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

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

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

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

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

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

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

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

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

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

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

Someday We'll Find It, The Rainbow Connection

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

 

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

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

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

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

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

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

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

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

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

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

 

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

Then and Now: Judicial Review

To continue this week’s theme of throwbacks, today’s post highlights a lecture on the evolution of judicial review through Canada’s 150 years. The Friends of the University of Alberta presented the Honourable Justice Russell Brown at the 2017 H. M. Tory Lecture this week. Justice Brown was an award-winning professor at the Faculty of Law until his meteoric rise to the bench starting in 2013.[1] After approximately a year and change at each of the Courts of Queen’s Bench and Appeal of Alberta, he now sits as a puisne justice at the Supreme Court of Canada.

Justice Brown discussed the importance of judicial review in light of the Constitution Act, 1867 (formerly, the BNA Act) and the Constitution Act, 1982, which includes the Charter of Rights and Freedoms.[2]

Canada’s separation of powers includes the executive branch (Prime Minister and Cabinet or Premier and Cabinet, as well as unelected government employees), the legislative branch (federal Members of Parliament or provincial Members of Legislative Assemblies), and the politically independent judicial branch. Judicial review occurs when a court convenes to consider the lawfulness of executive powers or legislation. Often, the primary legislation that delegates power to administrative bodies, such as the Human Rights Tribunal or the Workers’ Compensation Board, will allow a party to appeal decisions of that body to a court.[3]

Before the 1982 patriation of the Constitution, the BNA Act gave Parliament the sovereignty to enact any law it desired because the Constitution was enacted to be “similar in principle to that of the United Kingdom.”[4] Technically, Parliament still enjoys this right. However, in 1982 the new Constitution was given “Primacy” or supremacy over all other laws enacted by legislative or executive power.[5] This means that Canada’s courts can review legislation to ensure that it does not conflict with Canada’s body of constitutional law (including the Charter).

Between 1867 and 1981, courts reviewed legislation primarily to ensure that the Canadian federal system was maintained: that federal Parliament and provincial legislatures enacted laws according to their powers under sections 91 and 92 of the BNA Act, respectively.

From 1982 onward, the judiciary has taken on a more involved role. The introduction of the Charter as part of the supreme law of Canada requires that courts ensure there is a proper and lawful limit to the legislative infringement on the rights and freedoms of individuals.

But rights and freedoms are not absolute; they are subject to reasonable limits as are demonstrably justified in a free and democratic society.[6] Therefore, courts determine not only whether a law infringes on Charter rights, but whether it can be justifiably upheld.

Sometimes judges are accused of judicial activism; of overstepping their role as mere interpreters of the law. As Justice Brown put it, however, judges are more than just interpreters. They are legal referees in this law-versus-Charter-value game. Although legislators tend to enact laws that reflect the will of their electorate, sometimes Canada needs unelected constitutional law specialists to put the interests of, say, minority interests before that of written laws. For Justice Brown, this is true law and it is has evolved beyond interpreting merely questions of jurisdiction.

 

[1] Dean Paul Paton, Faculty of Law, University of Alberta, in his introduction of Brown J, HM Tory Lecture (2017).

[2] 30 & 31 Victoria, c 3 (UK) [Constitution Act, 1867]; being Schedule B to the Canada Act 1982, 1982 c 11 (UK) [Constitution Act, 1982].

[3] Alberta Human Rights Act, RSA 2000, c A-25.5, s 37(1); Workers’ Compensation Act, RSA c W-15, s 13.4(1).  

[4] J Noel Lyon, “The Central Fallacy of Canadian Constitutional Law,” 22 McGill Law Journal 40, online: <www.lawjournal.mcgill.ca/userfiles/other/5264739-02.pdf> at 1; Constitution Act, 1867, supra note 2, Preamble, at para 1.

2000, c W-2.15, s 13.4(1).

[5] Constitution Act, 1982, supra note 2, s 52.

[6] Constitution Act, 1982, ibid, s 1.

Legalization and Regulation: What the History of Alcohol Can Tell Us About the Future of Marijuana

Dear Sir or Madam,

Yesterday, we started our week on vices with an exploration of Canada’s brief flirtation with prohibition of alcohol. Today, we look at some cases regarding alcohol prohibition and what they may tell us about marijuana prohibition. We will make sense of some of the things that have been said about the upcoming legalization and regulation of marijuana.

As we’ve discussed previously, the British North America Act [BNA Act] divides powers between the federal and provincial governments.¹ Marijuana is currently under federal jurisdiction as part of the Controlled Drugs and Substances Act.² Why, then, are some provincial leaders such as Ontario’s Kathleen Wynne talking about their visions for how marijuana will be regulated in their jurisdictions?³ The answer is the double aspect doctrine. Some, complicated issues including mind-altering substances fit into heads of power under both s 91 and s 92.

Russel v The Queen is a case from the 1880s in which federal legislation permitting municipalities to allow or disallow the sale of alcohol was challenged. The Privy Council held that this law is a valid use of both the POGG (Peace, Order and Good Government) power and the s 91(27) criminal law power. (Come back during judiciary week next month to find out why it was the British Privy Council rather than the Supreme Court of Canada making this decision.) Alcohol was something that was a potential national issue, and banning sales was criminal law.⁴

This was interpreted by some people to mean that alcohol was a federal issue and provinces had no jurisdiction. Hodge v The Queen challenged provincial liquor sales regulation soon after Russel. This led the Privy Council to clarify their earlier decision. Alcohol falls under double aspect doctrine, meaning that the federal government could ban or allow it, but when it is allowed any regulations fall under provincial jurisdiction through s 92(13).⁵ This division of responsibility has been upheld in recent decades with a finding of invalidity regarding federal regulations on the labelling of “light beer”.⁶

This does not mean that the federal government will not try to keep the regulation of marijuana (and therefore its tax revenue) under their control. They have been running consultations regarding what regulation models people and stakeholders would prefer.⁷ The federal government could justify regulation under the POGG power, but it would certainly be challenged by the provinces. In order to invoke POGG, they would have to prove to the Supreme Court that there is  something special about marijuana that would make the individual provinces unable to properly manage it.⁸

The federal and provincial governments are always trying to carve more power away from each other. This is especially true when we have new areas or major changes in law. It is too early to be sure exactly which level of government will end up with control. But as always with the law precedent can  provide us with clues.

Your Humble and Obedient Servants,

The Dominion

¹Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91-92, reprinted in RSC 1985, Appendix II, No 5.

²Controlled Drugs and Substances Act, SC 1996, Schedule II, s 1.

³Robert Benzie, “Weed Sales Should be Restricted to LCBO: Wynne”, The Star (21 June 2016), online: <www.thestar.com>.

⁴Russel v The Queen (1882), 7 AC 829 (PC).

⁵Hodge v The Queen (1883), 9 AC 117 (PC); aff’g (1882), 7 OAR 246; rev’g (1881), 46 UCQB 141 (Ont HC).

⁶Labatt Breweries of Canada Ltd v AG Canada, [1980] 1 SCR 914, 110 DLR (3d) 594.

⁷Government of Canada, News Release, “Government of Canada moves forward on Marijuana Legalization and Regulation”, (30 June 2916), online: Government of Canada News <www.news.gc.ca>.

⁸General Motors of Canada Ltd v City National Leasing, [1989] 1 SCR 641, 58 DLR (4th) 255.

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

Dear Sir or Madam:

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

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

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

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

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

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

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

Your Humble and Obedient Servants,

The Dominion

 

 

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

² Ibid at 499.

³ Ibid at 499.

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

⁵ Dostie & Dupre, supra note 1 at 499.

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

⁷ Ibid.

⁸ Hallowell, supra note 4.

⁹ Decarie, supra note 6.

¹⁰ Hallowell, supra note 4.

¹¹ Ibid.

¹² Ibid.

¹³ Ibid.

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

¹⁵ Ibid at 229.

¹⁶ Hallowell, supra note 4.

¹⁷ Ibid.

¹⁸ Ibid.

¹⁹ Ibid.

²⁰ Ibid.

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

ConsTITutional Rights

Dear Madam and/or Sir,

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

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

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

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

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

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

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

Thanks for the mammaries, Ms. Jacob,

The Dominion

 

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

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

[3] Ibid, s 174(2).

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

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

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

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

[8] Ibid.

Law and Social Media - Meet the Team - Paul Welke

Dear Sir or Madam,

We write to you today in order to introduce our oldest member, Paul Welke. Paul has the dubious distinction of being our only member to have been born in the 1970s.

Born and raised in Edmonton, he joined the Canadian Forces at 17, and transferred to the Intelligence Branch shortly after, which gave him both the opportunity to do two NATO peacekeeping tours to Bosnia-Herzegovina with the Royal Canadian Air Force, as well as an excuse for taking seven years to complete his Bachelor of Arts.

As is the case with many BA grads, Paul soon found that creativity would be required to secure gainful employment. After leaving the Canadian Forces, he started work as a Communications Technician with a major telecommunications company and earned his Journeyman ticket in that trade.

Eventually, he found the actual work that accompanied a job in the trades to be somewhat objectionable. Along with his family, he made the decision to pursue a career in Law, which had been a dream of his for some time. He commenced his legal education at Thompson Rivers University in Kamloops, BC, but transferred back home after his first year. While he found that Kamloops can be surprisingly picturesque and he was saddened to leave the friends that he found within the students and faculty at TRU Law, Edmonton has always been home, and Paul was excited to be able to complete his legal studies at his alma mater, the University of Alberta. Even more importantly, he was elated to discover that he would not have to spend two more school years away from his wife and son. They, on occasion, share in this joy at having him back home.

Paul has always had a love for criminal law and related constitutional law issues. He is currently seeking an articling position with a firm that shares his passions for access to justice and civil liberties. In addition to this, Paul is a volunteer and supporter of the Criminal Law Project of Student Legal Services of Edmonton, as well as the Founding Director of Innocence Alberta, a project that shared the dedication of their parent organization, Innocence Canada, to identifying, advocating for, and exonerating individuals convicted of a crime that they did not commit and to preventing such injustices in the future through legal education and justice system reform.

Outside of school, Paul enjoys playing board games and using his eight year old son as an excuse to do nerdy things, such as dressing up in matching Marty McFly costumes for Edmonton Expo. He has also kept a blog for the past two years detailing his misadventures as an older law student, which due to its rather liberal use of naughty words, will not be linked here. You are welcome to try to find it on your own. Aside from finishing his studies this year, Paul has resolved to pick up two of his old hobbies by ceasing to neglect his camera and his beer- and wine-making equipment.

 

Any queries for Paul can be sent to TheDominion1867@gmail.com, @Dominion_2017 on Twitter, or /Dominion2017 on Facebook.

 

Your Humble and Obedient Servants,

The Dominion

Edmonton City Councillor with an Edge: Margaret Crang

Happy International Women’s Day!

To celebrate the United Nations’ recognition of women and their achievements, today’s post discusses a remarkable Edmontonian and University of Alberta (“U of A”) Faculty of Law alumnus, Margaret Tryphene Francis Crang. We are grateful for the opportunity we recently had to speak with Ms. Crang’s niece, Phyllis Crang, and her great-niece, who helped inspire this biographical post. Her great-niece, Catherine A. Crang, also graduated with a law degree from the U of A and is a partner at a prominent Calgary law firm.

 

Margaret Crang earned three degrees by the age of twenty-three at the U of A: a Bachelor of Arts, a Bachelor of Law, and a School of Education diploma.[1] She was a keen athlete, excelling in track and swimming. Her photo is included in the Faculty of Law’s graduating class of 1932. In that ninth graduating class, she and Ms. H.K. Craig were the only women in their class of eleven, and only six women had graduated before them. Ms. Crang was well respected by her peers and sat on the student executive committee along with well-known members of the Edmonton legal community, Wilbur Fee Bowker and William Ogden Parlee.

In 1933 Ms. Crang became Canada's first female city councillor.[2] She remains the youngest person to ever serve on Edmonton City Council.[3] Her tenure on council lasted only four years, despite topping the polls in the 1935 civic election.[4] By 1937, the conservative Alberta politics ousted many politicians with more leftist ideals, and even her father lost his twenty-five-year seat on the school board to a more conservative candidate.[5] Some argue that her idealism, and particularly one controversial event in Spain as outlined below, prevented her from being re-elected in 1937.[6]

Ms. Crang was called “council’s chief defender of the unemployed and their organizations”.[7] She was raised by liberal parents, including her physician father who, as a member of the Canadian Labor [sic] Party, advocated for the unemployed, the ill, the young, and the poor during Alberta’s poor economic conditions in the 1920s.[8] Ms. Crang’s idealism was deeply rooted as a product of her upbringing; she is quoted as having said:

As a young girl in my teens, I found myself rather addicted to spasms of conviction. Like all adolescent youth, I was given to the projection of desperate ideals of personal and social perfection. The fact is that I really believed that I had a mission to save the world, and what is worse, I knew exactly how the thing was to be done. I was out to mould the world in conformity with the heart’s desire.[9]

As a socialist, a pacifist, and a staunch anti-fascist, Ms. Crang attended the United Peace Conference in Brussels in 1936 along with nine other delegates from Canada.[10] She was the national representative of the Edmonton Branch of the League against War and Fascism and a member of the Canadian Commonwealth Federation (a political coalition of progressive, socialist, and labour groups).[11] That same year, the Spanish Civil War had recently broken out. While in Europe, Ms. Crang seized the opportunity to sneak into “war-ravaged” Spain through a tunnel on the French border.[12] Luckily, Ms. Crang had this opportunity less than a year before the Canadian government criminalized involvement in the Spanish Civil War.[13] Ms. Crang and nine other delegates connected with some milicianas, the republican Spanish women who battled fascists, who took them on a tour of Madrid and a battle front. Feeling a sense of connection with her female comrades and an overwhelming sense of justice for the Spanish government forces, she picked up a rifle and fired two shots in the direction of the fascist guards.[14]

Newspapers across Canada, including the Edmonton Journal, reported on her anti-pacifist, “unwomanly” act when she returned home.[15] Despite there being no legislation to criminalize her act, the conservative attitude in Canada during this time destroyed her socialist political career. After her city council term ended in 1937, she was unable to secure re-election and three efforts to break into provincial politics were also unsuccessful. Instead, she practiced as a lawyer on the west coast of Canada in support of the rights of refugees and immigrants and enjoyed a career as a journalist in Montréal for the Montréal Gazette. She eventually relocated to Vancouver to be closer to her parents, and passed away in 1991.[16] To recognize her contribution to the Edmonton community, the City of Edmonton has named a park in the southwest after Ms. Crang.

Ms. Crang’s remarkable story is timely - in the spirit of celebrating International Women’s Day, we honour pioneer women in law and politics who both benefitted from the rights to vote and hold office, and who contributed to the women’s equality movement in Canada.

 

[1] City of Edmonton Archives, “City Government”, Chapter 18 - Biographies of Council Members (online):

<http://www.edmonton.ca/city_government/documents/Chapter_18_-_Biographies.pdf> [City].

[2] Katherine Thompson, UAlberta Faculty of Law's List of Firsts: Margaret Crang (Class of 1932), the first woman law graduate to serve on City Council in Edmonton, University of Alberta Faculty of Law News (online): <https://lawschool.ualberta.ca/news/main-news/2013/july/margaretcrang-firstwomanlawgraduatetoserveonedmontoncitycouncil> [Thomspon].

[3] City, supra note 1.

[4] Larry Hannant, “‘My God, are they sending women?’: Three Canadian Women in the Spanish Civil War, 1936-1939”, Journal of the CHA 2004, New Series, Vol 15 (online): <http://id.erudit.org/iderudit/012072ar> [Hannant].

[5] Ibid.

[6] City, supra note 1.

[7] Edmonton Public Library, City Councilor [sic] Margarent Crang, City of Edmonton Archives, EA-267-534 (online): <http://www2.epl.ca/edmontonacitycalledhome/EPLEdmontonCityCalledPhotosSingle.cfm?id=1648> [Library].

[8] Brief Biography of Margaret Crang, Old Alberta, 12 June 2013 (online): <http://oldalberta.blogspot.ca/2013/06/brief-biography-of-margaret-crang.html> [Brief]. 

[9] Thompson, supra note 2.

[10] City, supra note 1; Hannant, supra note 4.

[11] Hannant, ibid.

[12] City, supra note 1; Hannant, ibid.

[13] Dougal McDonald, “How Canada’s Foreign Enlistment Act Criminalized the Anti-Fascist Volunteers”, 75th Anniversary of the Spanish Civil War (online): <http://www.cpcml.ca/Tmlw2011/W410045.HTM> [McDonald].

[14] City, supra note 1; Hannant, supra note 4.

[15] Hannant, ibid.

[16] Brief, supra note 8.

“Pyrotechnic” Eloquence: Maritime Provinces Part II [1]

"For years we agitated gently," but it was "surprising to find otherwise delightful people fly into terrific rages and order us out of their offices, when they learnt what our mission was" [2].

Today we continue the discussion on the suffrage movement in the Maritime provinces. In addition to the challenges that the “weight of indifference” presented, conservative opposition among the provinces’ legislatures delayed the vote for women, especially in Prince Edward Island, as well as Newfoundland and Labrador. Nova Scotia and New Brunswick enfranchised women in 1918 and 1919, respectively. Women in Prince Edward Island, along with Newfoundland and Labrador, waited until 1922 and 1925.

The Nova Scotia Attorney-General, Honourable J.W. Longley, was the province’s most vocal opponent to women’s suffrage. His “force and eloquence” were “a brilliant pyrotechnic display” of his views on women’s traditional roles [3]. During one legislative debate, Longley argued that voting would interfere with women’s four roles:

[F]irst, the bearing and bringing up of children, and this is the highest. Second, the creating of home and the beautifying of home life…. Third, to charm men and make the world pleasant, sweet and agreeable to live in. Fourth to be kindly and loving, to be sweet and to be cherished, to be weak and confiding, to be protected and to be the object of man’s devotion. [4]

Therefore, in the years prior to enfranchisement it was thought that a woman’s main purpose was to serve her husband, and her political opinion would be superfluous to that of his. In many regions, unmarried women were initially able to vote, only to lose that power upon marriage [5].

Voting rights for women were achieved in the Maritimes not because lawmakers considered women to be equal or to be deserving, but rather, they were able to “earn” the right to vote by helping the men in the war effort between 1914 and 1918 [6]. Many male supporters of women’s suffrage, such as politicians and news editors, helped appeal to the legislature to give women the vote in order to repay them for their wartime work.

As in most of Canada, Maritime women’s voting rights were granted before the Persons Case and before modern ideals of equality between the sexes developed. During a time when some men did not consider women to be equal citizens, radical liberals presented a strong opposition by maintaining that women had worked hard, just like men, and for men’s benefit, and therefore should be reimbursed with greater political rights [7]. The appeal to equality between the sexes was not as persuasive as it is today, and some men loudly voiced their disdain.

The Nova Scotia General Assembly finally acceded to calls for women’s suffrage in 1918. Catherine Cleverdon, in her seminal study “The Woman Suffrage Movement in Canada”, describes the movement as “sporadic” and as a “by-product” of the Women’s Christian Temperance Union’s campaign for prohibition [8]. This is not surprising given the “customary link between prohibition and equal franchise”, as legislators who were opposed to prohibition tended to oppose women’s suffrage as well [9].

New Brunswick, who had separated from Nova Scotia in 1784, granted women the vote in 1919, just a year after Nova Scotia. New Brunswick has been compared to “a younger sister who often patterns her actions after those of an older member of the family, [and] frequently looked for guidance to the senior province lying eastward” [10]. The women’s suffrage movement in New Brunswick struggled less than its counterpart in Nova Scotia for several reasons. First, the general apathy toward women’s suffrage was less of a “dead weight” than that of Nova Scotia’s because the New Brunswick legislature looked to progress in Nova Scotia with admiration. Second, New Brunswick women benefitted from more petitions and frequent delegations to the legislature, indicating that a significant number of women sought voting rights. Third, the Saint John Daily Telegraph provided public, male support for the suffrage movement. And fourth, the Enfranchisement Association in Saint John, New Brunswick, had a stronger public recognition than the same organization did in Nova Scotia. This was partially due to the fact that the women’s suffrage movement had finally gained better publicity by extending past western and central Canada to the conservative stronghold of the Maritimes [11].

Prince Edward Island’s geographic isolation and small population “built up a complete immunity to outside suffrage influences and was well content that no native variety of feminism root in its soil” [12]. The Prince Edward Island press reported on suffrage issues including women’s federal enfranchisement, voting rights’ correlation with educational enrichment, and the public benefit to gaining women’s “advice on matters pertaining to health, morals, and the home” [13]. Thus, although the newspapers brought attention to suffrage in Prince Edward Island, women continued to be siloed into customary roles. In 1919, the legislature promised that it would consider granting women the right to vote by 1922. Despite much opposition and rhetoric about women’s traditional roles in the home, the debt owed to women’s work during the war convinced conservative opponents to grant women the right to vote.

Finally, in 1925 Canada’s oldest colony, Newfoundland and Labrador, followed the other three Maritime provinces and granted women the right to vote. The active campaign in Newfoundland and Labrador lasted thirty-five years, starting with the formation of the Women’s Christian Temperance Union in 1890 [14]. Conservative male attitudes resisted the campaigns for suffrage partially because they were coupled with prohibition campaigns. Temperance suffragists found a correlation between alcohol, domestic violence, and women’s lack of political rights, making prohibition a natural co-campaign. Likewise, women’s suffrage was a natural co-campaign for many clergymen [15]. Many conservative men in positions of power contested the increase of women’s liberty which was coupled with a restriction on men’s freedom. After granting women the right to vote in municipal elections in 1921, the provincial legislature finally granted full voting rights to women in 1925.

The four Maritime provinces had long been considered more conservative than Ontario and the provinces to the west. At the same time, the low numbers of women actively involved in the suffrage movement exhibited an air of indifference toward attaining the right to vote. Politicians used this perception of indifference and the Victorian views on traditional gender roles to delay granting women full voting rights. Nova Scotia and New Brunswick, with their stronger ties to the rest of Canada, granted women voting rights sooner. Prince Edward Island along with  Newfoundland and Labrador retained their isolated, conservative cultures until the 1920s.

Political rights for women relate not only to a voice on a ballot. Political equality translates into being treated equal on an individual level. Stay tuned tomorrow and Friday for discussions on how women’s voting rights affect women’s personal lives under the law!

[1] Catherine L Cleverdon, The Woman Suffrage Movement in Canada (Toronto: The University of Toronto Press, 1974) at 161 [Cleverdon].

[2] Ibid at 211.

[3] Ibid at 161.

[4] Ibid.

[5] Ibid.

[6] Ibid at 169, 170, 176, 193, 206.

[7] Ibid.

[8] Ibid at 158-159

[9] Ibid at 159.

[10] Ibid at 178.

[11] Ibid at 156.

[12] Ibid at 198.

[13] Ibid at 206.

[14] “Women’s Suffrage”, Heritage Newfoundland and Labrador (16 February 2016), online: <http://www.heritage.nf.ca/articles/politics/women-suffrage.php>.

[15] Cleverdon, supra note 1 at 210.

Closing Remarks from the Strathcona Candidate Debate

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

 

Linda Duncan

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

 

Eleanor Olszewski

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

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

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

The Ongoing Standoff over Vancouver's Arbutus Rail Corridor

Perhaps I wasn’t the only Canadian property law enthusiast who eagerly clicked on this Globe and Mail story about the ongoing saga of Vancouver’s Arbutus rail corridor.[1] The 10-km corridor that cuts through the west side of Vancouver from Richmond to False Creek was the subject of the Supreme Court of Canada’s leading decision on constructive or de facto expropriation, also known as regulatory takings.[2] That case been the subject of extensive commentary, by obscure academics[3] and esteemed jurists[4] alike.

The Arbutus corridor, which runs through some of the most expensive residential real estate in Canada, is owned by Canadian Pacific Railway Ltd. (CP). It was operated by CP as a rail corridor from the start of the 20^th century until 2001, when CP discontinued service. CP then put forward proposals to develop the land in the corridor for commercial and residential purposes. It also indicated that it would be willing to sell the land to the City of Vancouver at a price determined by agreement or under the formal process for expropriation. Instead, the City preferred to keep the corridor intact for future transportation purposes without formally acquiring it. It zoned the corridor as a public thoroughfare for rail, transit, and cycling and pedestrian paths.  As the Supreme Court acknowledged, the effect of this designation was to confine CP to uneconomic uses of the land in question, since use of the corridor for rail was no longer profitable.

CP brought a claim for constructive expropriation, arguing that a development plan confining it to uneconomic uses and providing Vancouverites with a de facto public park amounted to a taking of the land in question, which should require compensation. The doctrine of constructive expropriation is ultimately based on an interpretive principle – that the legislature will not be understood to authorize a taking of property without compensation unless it says so explicitly.[5] Since municipalities are creatures of statute, they are only able to formally expropriate property based on powers explicitly set out in provincial legislation, which uniformly requires that compensation be paid to expropriated landowners. A public body should not be able to do indirectly what it cannot do directly, and so Canadian courts have long held that regulations that are so burdensome as to amount to a de facto expropriation of the property in question should also require compensation unless an uncompensated taking is explicitly authorized by the legislature. (See, e.g.,  R.  v. Tener, [1985] 1 SCR 533, in which a refusal to grant access to a provincial park for the purposes of exploiting a mineral lease was held to amount to a constructive expropriation of the mineral interest.)

The Supreme Court of Canada ultimately rejected CP’s constructive expropriation argument, establishing a highly restrictive test for constructive expropriation in the process.[6] The Supreme Court held that in order to make out a claim for constructive expropriation, a plaintiff has to establish that a public body has acquired a “beneficial interest” in the property in question, and that it has deprived the owner of all reasonable uses of the property. The Court held that CP had not satisfied either branch of the test, despite the fact that none of the uses left to CP was profitable and the City obtained the benefit of what was essentially a park and intact transportation corridor. The Court denied compensation, in a decision that was strongly criticized by then-Professor Russell Brown. [7]

This is where the Globe story picks up. As a result of the Supreme Court decision, CP and the City of Vancouver were effectively locked in a standoff. The City was not prepared to formally expropriate the land in order to designate it as a public park or use it as a transit corridor, despite the fact that many Vancouverites had taken to using the corridor as a walking path and community garden. Formal expropriation would have required the City to compensate CP. CP, for its part, technically still held title to a large swath of urban land with enormous development potential, but was unable to do anything with it – at least not anything profitable, which is a pretty significant restriction for a publicly traded company with duties to shareholders.

This state of affairs persisted for a few years following the Supreme Court decision, until last year, when CP finally made a move. In what was widely viewed as a negotiating tactic aimed at bringing the City back to the bargaining table, CP announced that it planned to resume freight rail service along the corridor. This is, of course, exactly the type of service that CP had previously argued before the Supreme Court would not be profitable. Last year, as part of its efforts to prepare the corridor for the resumption of freight rail service, CP cleared community gardens that had been established in the corridor. It now claims to be on the cusp of resuming rail service.[8]

In response to CP’s actions, the City has initiated an application under the Canada Transportation Act.[9] The City argues that when CP discontinued rail service in 2001, it was under an obligation to offer to sell the land to the government at its “net salvage value”, which is a term of art in transportation law that effectively provides a discount on the market value of the land.[10]  In separate litigation in the B.C. Supreme Court, the City also raises some interesting constitutional questions, arguing that when CP abandoned rail service, the Arbutus corridor ceased to fall under federal jurisdiction, and that s. 88 of the Canada Transportation Act, which declares railways under federal jurisdiction to be works for the general advantage of Canada, is not a valid invocation of s. 92(10) of the Constitution Act, 1867.[11] The City sought an interlocutory injunction to stop the resumption of rail service, which was rejected in January.[12]

I have always found the Canadian Pacific constructive expropriation decision fascinating, featuring as it does the lingering effects of Canada’s 19^th century railway history, the shifting economics of transportation, and the incentives of public officials to obtain something for nothing. It’s hard to feel sorry for a railway conglomerate, especially one that was initially given the land in question for basically nothing (other than an undertaking to establish a rail line).[13] But at the same time, there is something disturbing about a local government’s using its zoning powers to effectively force a single landowner to absorb the entire cost of a benefit enjoyed by the citizenry as a whole. Even if you think, as many do, that large corporations like CP should pay more in taxes, it does not follow that a single corporation should be made to pay the full cost of a public amenity just because it happens to own land in the wrong place. That is just arbitrary. One cannot help but think that the ongoing standoff over the Arbutus corridor could have been averted by a more robust doctrine of constructive expropriation that would preclude governments from using their regulatory powers to create stranded assets, that is to say, assets that have no profitable uses.

As the Globe article indicates, the Arbutus corridor story is far from over. The legal terrain has simply shifted from the common law of property to the legislative framework governing railways in Canada. We’ll see if this round of litigation ultimately brings resolution. 

---

[1] Sunny Dhillon, “Vancouver wants Arbutus rail corridor sold at a discounted price”, Globe and Mail (12 August 2015) <http://www.theglobeandmail.com/news/british-columbia/vancouver-wants-arbutus-rail-corridor-sold-at-a-discounted-price/article25948375/>.

[2] Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5, [2006] 1 SCR 227.

[3] Malcolm Lavoie, “Canadian Common Law and Civil Law Approaches to Constructive Takings: A Comparative Economic Perspective” (2011) 42(2) Ottawa L Rev 229.

[4] Russell Brown, “The Constructive Taking at the Supreme Court of Canada: Once More, without Feeling” (2007) 40(1) UBC L Rev 315. 

[5] AG v De Keyser’s Royal Hotel, Limited, [1920] AC 508 at 542, [1920] 122 LT 691 at 698 (HL), Atkinson LJ (“unless the words of the statute clearly so demand, the statute is not to be construed so as to take away the property of a subject without compensation”), applied in Manitoba Fisheries Ltd v Canada, [1979] 1 SCR 101, 88 DLR (3d) 462

[6] Canadian Pacific, supra note 1 at para 30.

[7] Brown, supra note 4.

[8]  “Arbutus Corridor: Vancouver tries new tactic in battle with CP”, CBC News (13 August 2015) http://www.cbc.ca/news/canada/british-columbia/arbutus-corridor-vancouver-tries-new-tactic-in-battle-with-cp-1.3189834.

[9] SC 1996, c 10.

[10] Dhillon, supra note 1.

[11] See Vancouver (City) v. Canadian Pacific Railway Company, 2015 BCSC 76 at paras 32-33.

[12] Vancouver (City) v. Canadian Pacific Railway Company, 2015 BCSC 76.

[13] C.P.R. v. Vancouver (City), 2004 BCCA 192 at para 4.

Beware of those Academics

Ok - so maybe Toronto isn't the worst city for NIMBYism. Nope that distinction has to belong to the City of Evanston, Illinois host of the Northwestern University and other fancy happy types. That is until they smell the whiff of development in their backyard, and then they go all nuts! Like this proposed developmnent that got the locals all upset, because it might attract the wrong type of "transient academics". Click on the story, because the comments are actually quite funny!

There you have it - the transient academics are ruining it for us all. Thankfully, I am permamently hired, otherwise, I too might be the target of these attacks. I feel sad for all my University colleagues who have no permanent residence, and have to carry their books and crazy ideas everywhere they go. Yup, the world must end the tyranny of transient academics.

Rob Ford, Mayoral Responsibilities and Legal Remedies

I have been reluctant to write about the ongoing and all-too-real reality tv show that is Toronto Mayor Rod Ford, but the story raises interesting legal questions regarding the available remedies (or lack thereof) when a mayor has lost the ability to fulfill the responsibilities assigned to the office under the City of Toronto Act.

Aside from one's personal opinions regarding the mayor's past and present conduct, it is clearly affecting his ability to fulfill at least two responsibilities of the mayor's office. First, under s. 133(1)(d) of the City of Toronto Act, it is part of the role of mayor as head of council "to represent the City at official functions". Back in the summer, Ford failed to show up at the opening of the Taste of the Danforth festival; a few hours later, he was seen wandering drunk along the Danforth. This week, he was asked not to march in the upcoming Santa Claus parade. Whatever one thinks of Ford's follies, they are preventing him from fulfilling this legislatively assigned responsibility. Second, under s. 134(c), as chief executive officer, the mayor "shall...act as the representative of the City both within and outside the City, and promote the City locally, nationally and internationally". Ford's confession that he had smoked crack cocaine "probably in one of [his] drunken stupors" made international news, and US media closely follow his increasingly outrageous every word. Arguably, Ford is no longer representing, and no longer able to represent, the City of Toronto, as he is too busy representing, defending and just being himself. Any reasonable person, consciously acting as a representative of another individual or group, would not have said the things Ford said to the media last Thursday morning. (I have not included a link here as, really, it's unnecessary and gratuitous).

So, what is to be done? What legal remedy is provided for a mayor's failure to fulfill these responsibilities? The answer, it seems, is none. In a way, this is as it should be. The responsibilities described above are broad and general and so in other cases could leave room for partisan arguments that a mayor was not fulfilling their responsibilities. In other cases, the most appropriate remedy is a change of leadership following an election. This may seem an increasingly unsatisfactory remedy in this case, but amending the City of Toronto Act (see also here) to fix what is hopefully a highly anomalous situation may not be desirable in the long-term. The approach taken by Toronto City Council seems preferable, passing motions reducing the powers of this mayor, to make clear through the near-unanimous Council support for these motions that, as a matter of fact, this mayor no longer represents the City of Toronto and its residents, even if he hangs on to the title.

Big Buildings come to Edmonton

Well that didn't take long - Mayor Iveson gets elected promising greatness for the city, and now it looks like we will get a 71 storey tower! If we could get Tom Cruise to do MI5 on it, that would a be bonus too!

Renters of the world unite

“My name is Gail and I am a renter.” It’s not a perfect analogy, but in Canada, a certain amount of shame in renting is the flip-side of the pride derived from home-ownership. These feelings of shame and pride are arguably the product of a strong social norm that places a high – some might say irrational – value on owning one’s home, as reaction to recent mortgage rate hikes has demonstrated. (See also here). As seen in the CBC clip, even though the federal Finance Minister has taken steps to clip the wings of wannabe home owners, he doesn’t expressly advocate renting – just taking longer to buy your first home.The question is should public policy continue to reinforce this social norm, or should it, as Susan Delacourt wrote in the Star a few weeks ago, help to create “an expanded, updated concept of the Canadian Dream” that can instill pride in renting, as well as owning?

According to a 2010 report by GWL Realty Advisors, which can be found on the Martin Prosperity Institute website, there has been a shift in recent years from consuming goods to consuming “experiences” – food, entertainment, spa treatments, etc. Renters are people who choose proximity to these experiences over living wherever they can afford to buy a home. This is in part because apartment-dwellers also tend to be workers in the “knowledge economy” whose job it is to come up with new ideas and who therefore seek out experiences for inspiration. The problem is, after years of neglect, demand for quality rental accommodation is far outstripping supply. As rental costs rise, Canadian cities may find it difficult to attract the renters necessary to keep the emerging experience and knowledge economies healthy and dynamic.

So, politicians and policy-makers, perhaps it’s time to give renters their due. As Delacourt states, “renters buy things too”. And they vote.

Law Students Working to Conserve Sharks in Hong Kong!

I am delighted to be able to provide a post that is slightly more substantial than my usual offering. Last week I was contacted by a representative of a group of law students (called "Sharky) from the Chinese University of Hong Kong who are working on a project titled: A Research Study on the Need for Legal Protection of Sharks in Hong Kong. The main objective of this project is to assess the extent to which sharks should be protected by legislation in Hong Kong.

The group has reached out to many groups that are working for shark conservation and are currently compiliing and analyzing the results of the questionnaire that they distributed.

As many of you who have followed my shark updates likely already know, Hong Kong represents the epicenter for the shark fin trade. It is great to see this group of law students assuming a lead role in this issue! 

Sharky has kindly agreed to let me publish their questions and my corresponding answers on this blog:

1. From your experience/knowledge, what are the factors/reasons that (can) cause the US government to secure legislation to ban shark fin?  (e.g. in California)

This is definitely a complex question. I am able to comment on some of the generic factors that have led to various American states banning shark fin possession/trade, but I think that the motivation to seek this sort of legislation really varies on a state-by-state and person-by-person basis:

i) Shark finning/conservation is an environmental issue –  One approach to this issue is to try to convince legislators of the importance of maintaining sharks in the oceans. They are top predators, they help structure ecosystems, and they are critical to healthy reefs! We are removing them at an alarming and unsustainable rate. I think this motivates some politicians.

ii) Shark finning/conservation is an animal welfare issue –  Shark finning is incentivized by the fact that the fins are worth more than shark meat. Fishermen cut off the fins and throw the animal back. Society has not traditionally empathized with sharks—they are still stereotyped as
blood-thirsty man-eaters as a result of movies like Jaws. I think that the animal welfare aspect motivates some legislators.

iii) Shark finning/conservation is a “winnable” issue – It is difficult in many places in Canada and the U.S. to secure comprehensive environmental and/or conservation laws. Restricting shark fin possession and/or trade is an issue that can be addressed through a law or regulation and can be dealt with quickly; therefore, it is winnable and that makes it attractive!  

iv) Shark finning/conservation is an international issue that is not being sufficiently addressed at the international level – The first question that I always get asked is something like “why should we take action to save sharks, shouldn’t this be dealt with by international law?” In short, my answer is “yes… but!” International law and international cooperation is critical if we hope to stop the decline in sharks that we are witnessing, but history indicates that achieving international shark conservation will take a long time. Therefore, if there is local action
that can occur it makes sense to pursue it.

v) Shark finning/conservation has a local dimension – Shark finning occurs in the ocean, and often in areas beyond the jurisdiction of any one nation, but the products are being used everywhere around the world in a variety of forms. If we cannot stop the unsustainable harvest of sharks we can try to limit the availability of shark fins.

vi) Many different groups now care about sharks – Shark conservation is an issue that concerns many groups. As a traditional Chinese dish, restricting shark fin availability obviously
disproportionately impacts local Chinese American and Chinese Canadian populations, but at the same time there are a variety of groups that support increased shark conservation including: scuba divers and ecotourists; environmental conservation groups; animal welfare groups; sustainable food groups; etc.      

2. Can you tell us more about the US law development on shark protection?

The American push for shark conservation has really taken two forms. First, the federal government took steps in 2010/2011 to reduce shark finning in American waters (i.e., the 200 nautical miles off of America’s coast line). The Shark Conservation Act of 2010 did away with a few loopholes that had allowed shark finning to continue. Now, it is illegal to fin sharks in these waters. The second level of action has taken place at the state level where a number of
states (Hawaii, California, Washington State, Illinois, Maryland and Oregon, as well as a few American territories) have enacted state law that restricts shark fin possession and trade. Essentially, this legislation makes it illegal to possess shark fins, unless your possession is accompanied by a permit. This is an innovative way to address the problem of shark finning because it targets the end user rather than the fisherman that is out in the ocean catching
sharks. As I am sure you are aware, this push for state-level action started in Hawaii (where many Pacific fishing vessels would store shark fins), spread to some other mid-Pacific islands, then took off in California and the west coast before spreading to Illinois and now the east coast. Last I checked, the state of New York was also looking at passing a similar law which would be an awesome step! When we designed our campaign in 2010/2011 targeting Virginia, only Hawaii had enacted this law. We published an opinion-editorial in the Richmond
Times-Dispatch about our efforts and shark conservation, which can be read here.

3. For the Canadian Law that you have mentioned, how is the development of law on shark protection? Or how are the people’s attitudes towards shark conservation?

Canada has also taken steps to promote shark conservation. Our federal government recently considered a proposed law that would have restricted the ability for shark fins to be imported into Canada if they were detached from the shark. This bill did not become law as it was voted down in the House of Commons. While we have not had action at the provincial level (the analog to American states), we have had a number of municipalities (cities) that have introduced municipal bylaws that restrict shark fin possession, sale, trade, and consumption. These have been quite contentious since municipalities have limited jurisdiction to enact
bylaws (essentially, they can only enact bylaws that conform with the jurisdiction that has been given to them by the province). The bylaw that was enacted in Toronto was challenged in court at the end of 2012 and the court found that the City of Toronto lacked jurisdiction to enact this ban and ruled to invalidate the bylaw. No other Canadian municipalities have enacted a ban
since this decision came out.

4. What do you think Hong Kong can do to save sharks?

Hong Kong represents the epicenter of shark fin trade and shark fin consumption. This unique
position presents both challenges and opportunities! The major challenge I perceive is that the shark fin industry is both lucrative and rooted in tradition, meaning many people in Hong Kong have a vested interest in seeing it continue. The major opportunity is that any successful change that occurs in Hong Kong will have more impact than most changes we have seen so far around
the world!

The first question you have to consider is the jurisdiction issue. How are law-making powers divided in China? If you want to target possession/sale restrictions, which level of government has authority to control this? If you want to target import/trade restrictions, which level of government has authority to control this?

The next question you have to consider is how do you want to approach the law-makers? Is this
something that you want to approach as a group of law students or do you want to align yourselves with an established organization that brings resources, experience, and maybe some lobbying capabilities with it? Also, it is generally quite useful to have the support of some interested parties, which could include some restaurants that volunteer to take shark fin off their menu, couples that are getting married that have decided to not serve shark fin at their wedding, or maybe some influential or well-recognized people that would like to help out with your cause! There are advantages and disadvantages to any approach, but in my experience it is important to be organized, well-prepared, confident, and polished. Also, I encourage you to not be disappointed if the process is slow going or does not appear to be an immediate success. These sorts of things take a lot of time to see through to their conclusion.

After our lobbying efforts failed in the city where I live, the local group that I founded decided
to turn its attention to education and awareness rather than legal reform. We have prepared a presentation, presented it at schools in and around our city and at local scuba diving shops, and are currently working to create an education unit for schools that teaches about sharks, ocean conservation, and sustainability. Education is key and making sure that today’s youth know about important issues and the world that they are inheriting is very important. In my experience this may be an even more powerful tool than law reform for this sort of issue. Have you considered establishing an education component to your campaign?

It would be great to see Hong Kong take legal steps to reduce the prevalence of shark fin products, but I think that working to educate people about this important issue is just
as critical and important!

I wish you all the success in creating your campaign and remain willing to help in any way I can!

The Fallout from Eng v. Toronto Begins...

Mississauga's City Council enacted a shark fin bylaw broadly banning shark fin possession etc that came into effect at the end of June, 2012. This week, the same Councillors were backtracking, and voted to take this bylaw off the books given the successful jurisdictional challenge to Toronto's shark fin ban in late-2012 (Eng v. Toronto).

News out of Mississauga suggests that some members of City Council are not ready to completely turn the page on municipal action to protect sharks, noting that Toronto will be considering how best to proceed in June (read more here).

So, what does this all mean? At this point, only time will tell.