University of Alberta Faculty of Law Blog

In the Media: Indigenous Candidates and Indigenous Issues in the Federal Election

Tansi Nîtôtemtik,

With the impending federal election nearly upon us, today ReconciliAction YEG highlights Indigenous candidates and provides a brief overview of what each party proposes to offer Indigenous voters if they get voted in on October 21^st.

Indigenous Candidates
The 2015 federal election saw the highest representation of Indigenous candidates to date, with a record-breaking 54 contenders, 10 of whom were elected.[1] As of October 1^st, 2019, Indigenous candidates in this year’s federal election total 42 contenders: 5 each for the Conservative Party of Canada (the “Conservatives”) and the Green Party of Canada (the “Green Party”); 2 running Independent (notably Jody Wilson-Raybould); and 15 each for the Liberal Party of Canada (the “Liberals”) and the New Democratic Party (the “NDP”).[2] At last count, 3 of the 42 are running in Alberta ridings. These include: Desmond Bull of the Louis Bull Tribe of the Maskwacis Nation running for the Green Party in the Maskwacis-Wetaskiwin riding[3]; Maggie Farrington, Chief Executive Officer of the Athabasca Chipewyan First Nation, running for the Liberals in the Fort McMurray-Cold Lake riding[4]; and Katherine Swampy a resident of Maskwacis and councillor for the Samson Cree Nation, running for the NDP in the Edmonton Centre riding.[5]

Party Platforms on Indigenous Issues
Some parties, such as the Conservatives, have yet to release the entirety of their platform with regard to Indigenous issues.[6] According to the National Post the Green Party is the only party to have made an official promise with regard to Indigenous Affairs since the start of the campaign on September 11^th, 2019. The Green Party has stated they will implement the Aalls to Action of both the Truth and Reconciliation Commission of Canada (TRC) and the Calls to Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls.[7] As well, they have promised to re-introduce legislation to enshrine in Canadian law the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[8]

However, prior to the start of the campaign or as part of their official platform, most of the Parties have declared what they propose to do if they receive the winning vote. Both the Liberals and the NDP have stressed their commitment to implementing the 94 Calls to Action in the TRC Final Report and have made it a goal to lift the drinking water advisories across Indigenous communities in Canada within the elected term.[9]

The NDP and the Green Party have provided the most comprehensive breakdown in their platforms of what they propose to do for Indigenous voters and have touched on the important topics of housing, education, employment and economic development, and investment in public services.[10]

Little is known about the Conservative Party’s stance on Indigenous issues, except that Conservative Leader Andrew Scheer has said he is eager to build an open and positive relationship with Indigenous people.[11] However, he has also confirmed he would seek a judicial review of the Canadian Human Rights Tribunal decision ordering compensation of First Nations children harmed by on-reserve child welfare systems.[12] As the party currently in power, the Liberals are seeking judicial review of the First Nation child welfare compensation.[13]

The People’s Party of Canada has stated their intention to replace the “paternalistic Indian Act”.[14] As well, People’s Party Leader Maxime Bernier has said he wants to look into ways to bring clean drinking water to remote communities and to give Indigenous people individual property rights.[15]

Like the Conservatives, the Bloc Québécois have spoken little on the topic of Indigenous affairs, but they support the implementation of the UNDRIP and have promised to work toward administrative autonomy for Indigenous communities in the areas of education, justice, and culture.[16]

Voter Information
Please visit Elections Canada online to find your voter information, including who’s running, where to vote, and answers to any other voting questions. The 2019 federal election takes place October 21st, but advance voting happens October 10^th, 11^th, 12^th, and 13^th.[17]

The Canadian Broadcasting Corporation (CBC) has also provided a useful guide to voting in the 2019 federal election.[18] For a quick breakdown on how the parties compare on important key areas, including: Indigenous issues, child care, jobs, education, and healthcare, CBC has provided a useful comparison tool at Canada Votes 2019.[19] To explore how your views align with those of the parties, the 2019 Vote Compass can be found here.[20]

 

Yours Truly,

Team ReconciliAction YEG

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[1] Samantha Wright Allen, “‘We need to be at the table’: nominated Indigenous candidates near 2015’s record high”, The Hill Times (7 August 2019), online:  <www.hilltimes.com/2019/08/07/we-need-to-be-at-the-table-nominated-indigenous-candidates-near-2015s-record-high/210654>.

[2] “An Indigenous guide to the 2019 federal election”, CBC News (last modified 4 October 2019), online: <www.cbc.ca/news/indigenous/2019-federal-election-indigenous-candidates-1.5265989>.

[3] “Desmond Bull – Candidate for Maskwacis-Wetaskiwin (74)”, Green Party of Alberta (last visited 4 October 2019), online:<greenpartyofalberta.ca/cand-detail/?ID=74>.

[4] “Maggie Farrington: Your Liberal Candidate for Fort-McMurry-Cold Lake”, Liberal Party of Canada (last visited 4 October 2019), online: <maggiefarrington.liberal.ca>; Robynne Henry, “Farrington throws her name in for federal election”, Bonnyville Nouvelle (10 September 2019), online: <www.bonnyvillenouvelle.ca/article/farrington-throws-her-name-in-for-federal-election-20190910>.

[5] “Katherine Swampy For Edmonton Centre”, New Democratic Party of Canada (last visited 5 October 2019), online: <katherineswampy.ndp.ca>; “Katherine Swampy”, About.me (last visited 5 October 2019), online: <about.me/katherineswampy>.

[6] Olivia Stefanovich & Jorge Barrera, “Scheer’s relationship with Indigenous people is being tested in this election”, CBC News (4 October 2019), online: <www.cbc.ca/news/politics/scheer-conservative-indigenous-approach-2019-election-1.5130380>;

[7] National Post Staff, “Election 2019 platforms: Here’s what the Liberals, Conservatives, NDP and Greens are promising”, National Post (last modified 4 October 2019), online <nationalpost.com/news/politics/election-2019/federal-election-2019-platforms-guide-liberals-conservatives-ndp-green-platform-promises#indigenousAffairs>.

[8] Ibid.

[9] Jorge Barrera, “How do the main parties compare on these issues”, CBC News(last visited 5 October 2019), online: <newsinteractives.cbc.ca/elections/federal/2019/party-platforms/>; “Building A Better Future With Indigenous Peoples”, Liberal Party of Canada (last visited 5 October 2019), online: <2019.liberal.ca/our-platform/>.

[10] “Reconciliation”, New Democratic Party of Canada (last visited 5 October 2019), online: <www.ndp.ca/reconciliation>; “Reconciliation with Indigenous Peoples”, Green Party of Canada (last visited 5 October 2019), online: <www.greenparty.ca/en/platform/reconciliation-with-indigenous-peoples>.

[11] Stefanovich, supra note 6.

[12] Olivia Stefanovich, “Scheer says he’d seek ‘judicial review’ of First Nation child welfare compensation”, CBC News (3 October 2019), online: <www.cbc.ca/news/politics/scheer-trudeau-human-rights-first-nation-child-welfare-1.5307498>.

[13] Barrera, supra note 9.

[14] “Aboriginal Issues: A New Relationship Based on Mutual Respect”, People’s Party of Canada(last visited 5 October 2019), online: <www.peoplespartyofcanada.ca/aboriginal_issues_a_new_relationship_based_on_mutual_respect>.

[15] Ibid.

[16] “An Indigenous Guide”, supra note 2.

[17] “Voting (Home)”, Elections Canada (last visited 5 October 2019), online: <www.elections.ca/home.aspx>.

[18] Haydn Watters, “What you need to know to vote in Canada’s federal election”, CBC News(last modified 4 October 2019), online: <www.cbc.ca/news/politics/canada-voter-guide-2019-federal-election-1.5260336>.

[19] Barrera, supra note 9.

[20] CBC News, “Vote Compass”, CBC News (last visited 5 October 2019), online: <votecompass.cbc.ca/canada/>.

Reflection Post: The KAIROS Blanket Exercise, View from a Facilitator

Tansi Nîtôtemtik,

On Monday, September 9, 2019, the class of 2022 participated in the KAIROS Blanket Exercise. The class of 2022 is the fourth Faculty of Law class to complete the exercise. The Blanket Exercise is a 90-minute experiential workshop that aims to foster understanding about the shared history of Indigenous and non-Indigenous peoples.[1] Throughout the exercise participants get to “walk” through 500 years of the Indigenous Canadian experience, from pre-contact to present.

During a facilitated talking circle following the exercise students were asked to reflect upon two questions:

1. What is one thing you learned? and
2. What is one thing you want to know more about as a result of the exercise?

In one group a number of participants reflected upon the fact that they were unaware that the last Residential School closed in 1996 – the year they were born. Others shared they were unaware of the current devastating social, political and financial disparities between Indigenous and non-Indigenous Canadians. For example, the fact that the rates of suicide among First Nations communities is twice the national average, with Inuit rates being 6 to 11 times higher. When asked about what they wanted to learn, the students collectively expressed a desire to learn more, more about our past and present. Students expressed wanting to know more about reconciliation and the progress being made by Indigenous and non-Indigenous Canadians. They expressed interest in learning more about these issues by taking some of the many Indigenous Law courses offered by the Faculty of Law during the next three years.

The morning concluded with a closing smudge led by the Faculty of Law Elder in Residence Mr. Gilman Cardinal. Elder Cardinal reflected that he had never participated in such a smudge with so many participants. Elder Cardinal shared his hope for the future and that the Seven Generations teachings teach us that we are currently in the fourth generation of healing and have three generations ahead of us.

The Class of 2022 participating in the KAIROS Blanket Exercise is an example of healing. They have the opportunity to be a part of the next generation of lawyers graduating from the Faculty of Law with an awareness of the shared history between Indigenous and non-Indigenous Canadians. And perhaps even more importantly, a desire to ensure our past and present do not become our future.

To learn more about the KAIROS Blanket Exercise visit https://www.kairosblanketexercise.org/.

 

Until Next Time,

 

Team ReconciliAction YEG

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[1] Kairos Blanket Exercise, “The Blanket Exercise” (14 September 2019), online: < https://www.kairosblanketexercise.org/>.

Intro to Indigenous Law and Governance: Why Does This Topic Matter Now?

Tansi Nîtôtemtik,

Indigenous Governance has always, and should always, matter. However, Canadian society has historically viewed Indigenous Peoples as having no national identities, which has translated into a lack of knowledge on the part of the lay person.[1] This lack of knowledge is not where Canada, as a nation, should be.

Although Indigenous Governance should always be discussed, the timing of this topic for our blog is particularly current. There have been numerous media developments in recent years and as recently as the last few months. For example, the two volume Missing and Murdered Indigenous Women and Girls Final Reportwas released on June 3, 2019.[2] Furthermore, at the beginning of August 2019, it was announced that the Indigenous Law and Governance Centre at the University of Alberta would receive federal funding.[3] These two developments are a few of the many current issues and topics surrounding Indigenous Governance that we will be discussing in depth throughout this year. It is evident that the topic of Indigenous Governance is developing rapidly, and being aware of these advancements is essential. Through this blog, we hope to be able to effectively take on the role of conveying this information to you, our reader.

The ultimate goal for Canadian society is to be informed, to live harmoniously amongst one another, and work towards reconciliation. Given the historic societal view of Indigenous Peoples, the average non-Indigenous Canadian has a lot of work to do, and discussions on Indigenous Governance can begin to bridge this gap. There is a large amount of information that needs to be discussed to educate and bring Indigenous culture and Indigenous Governance to the forefront of our social consciousness. As a team this year, we hope to be able to inform our readers and help Canadians develop a better understanding and respect for Indigenous Peoples and their Governance. We are excited to embark on this learning journey with you.

 

Until next time,

 

Team ReconciliAction YEG

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[1]Gregory Younging, Elements of Indigenous Style: A Guide for Writing By and About Indigenous Peoples, (Edmonton, Alberta: Brush Education, 2018) at 77-78.

[2]“National Inquiry into Missing and Murdered Indigenous Women and Girls”, online: MMIWG <www.mmiwg-ffada.ca>.

[3]Folio, “Indigenous Law and Governance Centre at U of A Receives Federal Funding (14 August, 2019), online Folio <www.folio.ca>.

Intro to Indigenous Law and Governance: What is Indigenous Governance?

Tansi Nîtôtemtik,

Having established in our introductions last week that our theme this year is Indigenous Governance, you may now be wondering what exactly is “Indigenous Governance”.

The term “Indigenous Governance” is a term that, on its face, seems rather self-explanatory. To put it very, very simply, “governance” is a term that describes “how society[,] or groups within it, organize to make decisions.”[1]  When you pair this cursory definition of “governance” with the “Indigenous” descriptor, you are left with a phrase that concerns itself with how Indigenous Peoples and their communities organize themselves and make decisions. That is, Indigenous Governance is governance from the Indigenous perspective. It must be emphasized, however, that “governance” is not the same as “government.” Rather, “governance” is a broader concept that is “highly relevant to people and organizations whatever their involvement with government.”[2] As such, “Indigenous Governance” goes beyond the political, extending into and shaping other facets of Indigenous social life, including the private sector and civil society.[3]

And yet, Indigenous Governance is more than simply how Indigenous Peoples make and act on decisions. “Indigenous Governance” is, in fact, a principle that has greater depth, and one which comes with its own complexities and implications.

At its foundation, “Indigenous Governance” involves the recognition that Indigenous Peoples have historically had – and still continue to exercise – their own systems and powers of governance, beyond that of the Canadian State. The fact remains that neither Canada, its government, nor its governance began at the date of Confederation in 1867. Centuries of history occurred on this land long before the white, European colonists arrived. Before European contact, Indigenous Nations were self-sustaining and self-governing, their societies founded on – and governed by – their respective laws, values, traditions, stories, and oral histories.[4] After contact, and through generations of European imperialism, paternalism, and assimilation, these Indigenous systems of self-governance were displaced and eroded by the Canadian State’s own powers of governance.

That is not to say that when we speak of Indigenous Governance, we speak only in the past tense. Today, Indigenous systems and methods of governance are being revived and reignited. Indigenous Governance continues to survive, emerging as an alternative system of governance within Canada, one that is employed by Indigenous Nations and their people, for their communities. Now, in this post-colonial era, “Indigenous Governance” is inherently tied to ideas of Indigenous sovereignty and self-determination, recognizing that Indigenous Peoples are, in fact, their own people, with their own communities, who should have the ability to decide and dictate what is best for them, and how to conduct and organize themselves. Of course, given the diversity of Indigenous Peoples across Canada, what governance looks like and how it is applied varies across each community, and the manner in which it is delivered is dependent on a Nation’s language, history, culture, and legal frameworks. This is the leading reason why it is so difficult to definitively explain what “Indigenous Governance” is, and what it looks like.[5]

That being said, Indigenous Governance does not merely work to organize individual Indigenous communities; such governance also affects Nation-to-Nation relationships, be it between Indigenous Nations themselves, or between Indigenous Nations and the Canadian State. Following this, the study of Indigenous Governance acts as a key piece of the Reconciliation puzzle, as our exploration of the topic will ask us to look back on our histories, encourage us to question how we govern ourselves, and offer us new tools with which to govern, lead, and structure our communities and relationships as we move forward.

 

Until next time,

 

Team ReconciliAction YEG

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[1]Institute on Governance, “What is Governance?”, online: <https://iog.ca/what-is-governance/>.

[2]First Nations Governance Project, “Phase I Governance Report” (August 2018) at 10, online: <https://fnfmb.com/sites/default/files/2018-09/2018_FN-Governance_Project_phase1-low-res_update.pdf>.

[3]Ibid at 10.

[4]There is a story shared by the Chiefs of the Shuswap, Okanagan and Couteau Tribes of BC that explains how the Creator, following the suggestion of the Mole, placed the gift of knowledge of Truth and Justice within Man himself, thereby placing within human beings the power, and freedom, to discover who and what we are, and therefore, how to govern theselves. This story is reproduced in the “Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, Vol. 2” (Ottawa: Ministry of Supply and Services, 1996) at 102-103, online: <http://data2.archives.ca/e/e448/e011188230-02.pdf>.

[5]“Phase I Governance Report”, supra note 2 at 12.

 

Where Do We Go From Here?

Image retrieved from http://artprofsamerica.com/tag/activism/

Tansi Nîtôtemtik,

        Our last week of posts provided an institutional critique of the university as a site where a specific form of colonial knowledge is shaped and sustained. Course content and curricula still prioritize Eurocentric knowledge,[1] and like racialized students, racialized faculty members still face “being marginalized, ghettoized, and tokenized”[2] on a regular basis. Relatively low proportions of non-white faculty means fewer students are “exposed to the particular knowledge that racialized and Indigenous faculty can potentially bring to their teaching,”[3] and even when Indigenous faculty members are hired, they often face higher teaching loads and “a double burden, with expectations to mentor more students and [...] frequent requests to sit on a large number of committees to represent symbolic representation.”[4] Together, these factors combine to make academia extraordinarily arduous for Indigenous scholars.

        The deeper you dig, the clearer it becomes that current “policies and practices to address racism are limited or ineffective.”[5] So what do we do about it?! In The Equity Myth, Malinda S. Smith and her colleagues propose specific solutions to address the challenges described above. To begin with, universities must develop “support mechanisms for racialized and Indigenous faculty that recognize their experiences and the unique demands resulting from cultural taxation which have an effect on their career trajectories.”[6] There needs to be more “policies, data, modes of monitoring and evaluating equity, and practices [created] from a multidimensional rather than a unidimensional perspective.”[7] Even individual faculties have work to do - they must commit to “disrupting established ways of doing things and challenging normative notions of selection, appointment, and promotion.”[8] With a lot of time and even more effort, reforms such as these have the potential to undo the substantive and procedural inequities that exist within Canadian universities.

        But institutional change is slow and hard to come by, and in the meantime, students also a have a role to play in transforming the university classroom from an oppressive space to one of liberation and resistance. Students take what they learn in the classroom and apply it in their communities. Both within the classroom and beyond it, students must be encouraged to take an active role in theorizing new perspectives and making space for change. In law school especially, where students graduate and go on to make, interpret, and apply the law as legislators, lawyers, and judges, we must be empowered to think and act in anti-racist and decolonizing ways.

        Settler and Indigenous students alike can intervene when we witness or experience racism on a personal or structural scale. We can show up for walks to protest violence against Indigenous women. We can stand in at “round dances, flash mobs, and teach-ins,”[9] and add our voices to movements like Occupy Ottawa or Justice for Colten. We can join community groups and participate in discussion series. We can collaborate together on decolonizing projects and use social media to build new relationships and support systems. In taking on the responsibility to genuinely connect our academic work to political purpose and action, we can contribute to shaping a world we actually want to live in.

        I would like to end my time as team lead of ReconciliAction YEG by encouraging all of our readers to go forth and be activists. Create. Resist. Be brave. Speak out when you see injustice. Never stop learning and unlearning. Thank you for an amazing eight months!

Until next time,

Grace Cleveland

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[1] See Frances Henry and Audrey Kobayashi, “The Everyday World of Racialized and Indigenous Faculty Members in Canadian Universities” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 131.

[2] Carl E. James and Selon Chapman-Nyaho, “‘Would never be hired these days’: The Precarious Work Situation of Racialized and Indigenous Faculty Members” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 91.

[3] Frances Henry, Audrey Kobayashi, and Andrea Choi, “Representational Analysis: Comparing Canada, the United States, the United Kingdom, and Australia” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 29.

[4] Howard Ramos and Rochelle Wijesingyha, “Academic Production, Reward, and Perceptions of Racialized Faculty Members” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 68-69.

[5] “Conclusion” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 298.

[6] Ibid, at 315.

[7] Ibid, at 316.

[8] Ibid.

[9] Margaret Kovach, “Treaties, Truths and Transgressive Pedagogies: Re-Imagining Indigenous Presence in the Classroom” (2013) Socialist Studies 9:1:109-27 at 122.

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Are We Really All Treaty People?

This image depicts the treaties in place prior to 1975. Image retrieved from https://www.aadnc-aandc.gc.ca/eng/1380223988016/1380224163492.

Tansi Nîtôtemtik,

        Treaties are “constitutionally protected, government-to-government agreements that identify, define and implement a range of rights and obligations, creating long-term, mutually binding commitments.”[1] In Canada, treaties between Indigenous and non-Indigenous peoples have generally involved Indigenous groups surrendering vast areas of land and interests in them to the federal Crown in exchange for varying benefits such as hunting and fishing rights, farming equipment and livestock, education, reserve lands, and annual payments.

        Treaty-making in Canada goes back hundreds of years. Usually, when people think of treaties, it is the pre-1975 treaties that come to mind. Included in this group are the Treaties of Peace and Neutrality of 1701-1760, the Peace and Friendship Treaties of 1725-1779, the Upper Canada Land Surrenders of 1781-1862, the Williams Treaties of 1923, the Robinson Treaties and Douglas Treaties of 1850-1854, and the Numbered Treaties of 1871-1921.[2] Importantly, though, treaty-making did not end in 1975. There is also a modern treaty process in use today (which Friday’s post will explore in more detail). It is also crucial to note that much of the land in Canada remains unceded to this day. Together, modern and historical treaties combine to create a broad area of ceded land, but no one treaty is exactly the same.

        One element that does remain constant across treaties is the question of fairness. As Wednesday’s post will examine, a common criticism of historic treaties is in regard to the language barriers between signing parties – were Indigenous signatories fully cognizant of what they were surrendering? While many would not answer this question in the affirmative, others argue that those signing fully understood the legal ramifications of the treaties and intended for them to become law. Accordingly, they argue that these treaties created a relationship between Indigenous and non-Indigenous signees and bound future generations to the promises made. The conceptualization of “treaty as relationship”[3] can thus offer a way for the contemporary presence of settlers to be legitimized within Indigenous systems of law.[4]

        Whether or not you agree with the idea that ‘we are all treaty people,’ (where does this leave those living in unceded territory?), a relational understanding of treaties leads to another criticism; that is, the fact that the Crown has simply not lived up to its promises. Is a contract legally enforceable when one side fails to perform? Maybe “we are not all Treaty peoples”[5] after all. Further, while the value of land has risen exponentially, inflation rates have yet to be factored in to the other side of the deal. In Alberta, annual ‘treaty payments’ are still the same five dollars they were in 1876 when Treaty 6 was signed! It is difficult to defend these agreements when one side continually benefits from the deal, and the other is perpetually oppressed by it.

        Stay tuned as we talk treaty for the rest of the week – tomorrow we consider the perspectives of certain Elders on the meaning and intent of Treaty 6; Wednesday we analyze the signatures on Treaty 6, 7, and 8; Thursday we narrow our scope and provide a close reading of Treaty 6; and Friday we take a look at the modern treaty process in BC.

Until next time,

Team ReconciliAction YEG

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[1] BC Treaty Commission, “Treaties and Negotiations” online, http://www.bctreaty.ca/faq.

[2] Indigenous and Northern Affairs Canada, “Summaries of Pre-1975 Treaties” online, https://www.aadnc-aandc.gc.ca/eng/1370362690208/1370362747827.

[3] Aaron Mills, “Nokomis and the Law in the Gift: Living Treaty Each Day” in Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books (Arbeiter Ring Publishing), 2017, at 22.

[4] Ibid, at 21.

[5] Kiera L. Ladner, “150 Years and Waiting: Will Canada Become an Honourable Nation?” in Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books (Arbeiter Ring Publishing), 2017, at 400.

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Say Their Names

Abigail Andrews

Ada Brown

Adele Rose Mary Matinet

Adrienne Amikons

Aielah Saric-Auger

Alannah Cardinal

Alberta Williams

Alice Netemegesic

Alisha Germaine

Alissa Martin-Travers

Amanda Bartlett

Amanda Cook

Amanda Simpson

Amber Guiboche

Amber Tuccaro

Andria Meise

Angel Carlick

Angela Meyer

Angela Poorman

Angela Williams

Angeline Pete

Anne Maria Lucas

Anne Peters

Annette Holywhiteman

Annie Pootoogook

Annie Yassie

Ashley Machiskinic

Ashley Smith

Audrey Desjarlais

Azraya Ackabee-Kokopenace

Azraya Kokopence

Barbara Keam

Barbara Kentner

Barbara Loon

Barbara Shapwaykeesic

Beatrice Adam

Belinda Cameron

Belinda Williams

Bella Laboucan-McLean

Bernadette Ahenakew

Bernadette Leclair

Bernadine Quewezance

Bernice Bottle

Bernice Joan Rich

Betsy Owens

Bonnie Jack

Bonnie Joseph

Brandy Vittrekwa

Brandy Wesaquate

Brenda Campbell

Brittany Bearspaw

Brooklyn Moose

Caitlin Potts

Caralyn King

Carol Davis

Carol Prudhomme

Caroline Burns

Carolyn Connolly

Cassandra Antone

Cecilia Nikal

Cecilia Payash

Chantelle Bushie

Charity Keesic

Charlene Catholique

Charnelle Masakeyash

Cherisse Houle

Cheryl Black

Cheryl Duck

Cheryl Johnson

Cheyenne Fox

Chloe Matthews

Christina Littlejohn

Christine Cardinal

Cindy Gladue

Clarene Rose Panamick

Claudette Osborne

Constance Cameron

Corrine Moosomin

Crystal Saunders

Cynthia Audy

Cynthia Lynette Jamieson

Danielle LaRue

Danita Bigeagle

Daphne Mesher Brown

Darlinda Ritchey

Dawn Crey

Dawn Keewatin

Deanna Bellerose

Debbie Pelletier

Debbie Sloss-Clarke

Deborah Toulouse

Deidre Michelin

Delaine Copenace

Delena Lefthand Dixon

Della Ootoova

Delores Brower

Delores Brown

Delores Whiteman

Delphine Nikal

Denise Katherine Bourdeau

Desiree Oldwoman

Destiny Tom

Diana Rattlesnake

Diane Dobson

Diane Marshall

Diane Stewart

Donna Kabatay

Donna Kasyon

Donna Taylor

Donna Tebbenham

Doreen Hardy

Doreen Jack

Dorothy Spence

Edith McGinnis Quagon

Edna Bernard

Edna Smith

Elaine Alook

Elaine Flowers

Elaine Vawn LaForme

Elena Assam-Thunderbird

Elizabeth Dorion

Elsie Sebastian

Emily Ballantyne

Emily Osmond

Emma Dixon

Ernestine Kasyon

Eva Mitchell

Evaline Cameron

Evelyn Kebalo

Felicia Solomon

Flora Muskego

Fonassa Bruyere

Frances Ellah

Freda Goodrunning

Geraldine Beardy

Geraldine Settee

Gladys Simon

Gladys Tolley

Glenda Morriseau

Glennis Edwards

Gloria Black Plume

Gloria Gladue

Gloria Jean Martha Abotossaway

Gloria Moody

Heather Ballantyne

Heather Pelletier

Heaven Traverse

Helen Gillings

Helen Louise Jacobs

Helene Ratfat

Helyna Rivera

Henrietta Millek

Hilda Agawa

Hillary Wilson

Ila Oman

Immaculate Basil

Irma Murdock

Jacqueline Crazybull

Jamie McGuire

Jane Bernard

Jane Jack

Jane Louise Sutherland

Janet Henry

Janet Sylvestre

Janice Desjarlais

Janine Wesaquate

Jarita Naistus

Jean Moccasin

Jean Sampare

Jeanenne Fontaine

Jeanette Basil

Jeanette Cardinal

Jeanine St Jean

Jeannette Chief

Jennifer Catcheway

Jennifer Stewart

Jessica Cardinal

Joanna Andersen

Joanne Ghostkeeper

Jocelyn McDonald

Joey English

Jordina Skunk

Josephine Chakasim

Josephine Thompson

Joyce Hewitt

Joyce Tillotson

Juanita Cardinal

Judie Thibault

Judy Ann Benoit Ogden

Judy Ann Quill

Judy Chescue

Judy Quill

Justine Cochrane

Kari Gordon

Karina Wolfe

Karla Desrosiers

Katelynne Sampson

Kathleen Leary

Katie Ballantyne

Kellie Little

Kelly Goforth

Kelly Morrisseau

Kimberly Jararuse

Krystal Andrews

Krystle Knott

Lana Derrick

Laura Pilon

Lavina Tocher

Leah Anderson

Leanne Benwell

Leanne Lawson

Leona Brule

Leslie Talley

Liana Mathewson

Linda Condo

Linda Guimond

Linda Scott

Lisa Lynn Anstey

Lisa Young

Liz Bonnie Sakakeesic

Lora Banman

Lora Frank

Loretta Capot-Blanc

Loretta Lavalley

Loretta Saunders

Lori Berens

Lori Kasprick

Lorilee Francis

Lorraine Rivers

Louise Lorraine Laderoute

Lynn Childforever

Mabel Leo

Mae Morton

Maggie Burke

Maggie Mink

Maggie Natomagan

Maisy Odjick

Marcia Koostachin

Margaret Blackbird

Margaret Guylee

Margaret Perrault (Bluebird)

Margaret Vedan

Marguerite Dyson

Mariah Wesley

Marie Banks

Marie Desjarlais

Marie Laliberte

Marie Lasas

Marie Mike

Mariella Lennie

Marilyn Daniels

Marilyn Munroe

Marjorie Henderson

Marlene Abigosis

Martha Boyce

Mary Ann Birmingham

Mary Ann Davis

Mary Goodfellow

Mary Hill

Mary Keadjuk

Mary Kreiser

Mary Lidguerre

Mary Mark

Mary Peters King

Mary Smith

Mary Susan Evans-Harlick

Mavis Mason

Maxine Susanne Peters

Maxine Wapass

Melanie Geddes

Melissa Chaboyer

Mercedes Stevens

Michelle Gurney

Michelle Hadwen

Mildred Flett

Minnie Sutherland

Misty Potts

Mitzi MacDougall

Moira Erb

Monica Cardinal

Monica Jack

Myrna Montgrand

Nadine Machiskinic

Nancy Dumas

Naomi Desjarlais

Nellie Angutiguluk

Nicole Daniels

Nicolle Hands

Olivia Williams

Pamela Holopainen

Pamela Napoleon

Patricia Carpenter

Patricia Favel

Patricia Quinn

Patricia Wadhams

Paula Joy Martin

Pauline Brazeau

Petrina Lynn Whitecrow

Philomene Lemay

Rachel Quinney

Ramona Shular

Ramona Wilson

Rebecca Guno

Rebecca Jean King

Rena Fox

Rene Gunning

Renee Neganiwina

Rhonda Gardiner

Rhonda Running Bird

Richele Bear

Roberta Elders

Roberta Ferguson

Roberta Lincoln

Rocelyn Gabriel

Rose Decoteau

Rose-Ann Blackned

Rowena Sharpe

Roxanne Charlie

Roxanne Fleming

Roxanne Isadore

Roxanne Thiara

Ruby Hardy

Ruth Cocks

Sabrina Polchies

Samantha Johnings

Samantha Paul

Sandra Kaye Johnson

Sarah Jane Wawia Bernard

Sarah Mason

Sarah Obed

Sarah Skunk

Savannah Hall

Selina Wallace

Serena Colson

Serenity

Shannon Alexander

Sharon Abraham

Sharon Merasty

Sharon Murphy

Shelley Anderson

Shelley Lynne Joseph

Shelley May Anderson

Shelly Dene

Shirley Beardy

Shirley Cletheroe

Shirley Lonethunder

Shirley Waquan

Simone Sanderson

Sindy Ruperthouse

Sonya Nadine Mae Cywink

Spring Phillips

Stella St. Arnault

Stephanie Cormier Chaisson

Sunshine Wood

Susan Assin

Sylvia Guiboche

Tabitha Kalluk

Tamara Chipman

Tamra Keepness

Tania Marsden

Tanya Brooks

Tanya Hill

Tanya Nepinak

Tashina Cheyenne Vaughn General

Teresa Robinson

Terra Gardener

Terrie Dauphinais

Thelma Pete

Therena Silva

Theresa Anne Yakimchuck

Therese Labbe

Theressa Wilson (Jamieson)

Tiffany Morrison

Tiffany Skye

Tina Fontaine

Tricia Paquette

Trudy Gopher

Vanessa Tagoona

Velma Duncan

Verna May Simard-Shabaquay

Verna Patricia Sturgeon

Verna Simard

Victoria Crow Shoe

Victoria Hornbrook

Viola Isabella Panacheese

Viola Melvin

Viola Panacheese

Violet Heathen

Vivian Cada

Wendy Poole

Yvonne Elizabeth King [1]

 

Tansi Nîtôtemtik,

        These names belong to Indigenous women who have been murdered or are missing from communities across the country. Too often they are reduced to numbers on a page or lines on a graph.

        They were grandmothers, mothers, daughters, sisters, aunties, cousins, and friends. They were humans. And they deserved better. Say their names.

#SayHerName [2]

Until next time,

Team ReconciliAction YEG

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[1] This list is not complete; hundreds more have lost their lives to gendered and racialized violence. Our list is a compilation of work done by Maryanne Pearce (https://docs.google.com/a/ualberta.ca/spreadsheets/d/1pvMIkZ2JmoXCUEnUWmYbcFWxfz5xcD7ljz_a8UIVOH0/pub?output=html), No More Silence (http://itstartswithus-mmiw.com/community-lists/#1485456540464-287e628c-dde8), and the CBC (http://www.cbc.ca/missingandmurdered/).

[2] Kimberle Crenshaw and the African American Policy Forum launched the #SayHerName campaign in 2015 in an effort to call attention to violence against Black women in the United States. Say Her Name documents stories of Black women who have been killed by police and shines a spotlight on forms of police brutality experienced disproportionately by women of colour.  The initiative focuses on the intersections of race and gender, and the violence that exists there. These and other intersections must also be considered in the context of violence done to Indigenous women in Canada.

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What is IFLT?

Tansi Nîtôtemtik,

        Indigenous Feminist Legal Theory (IFLT) is “an intersectional, anti-essentialist, multi-juridical tool that is attentive to questions about power, gender, sexuality, colonialism, and law.”[1] Research and writing that fail to utilize IFLT are likely to, at best, omit crucial factors from their analyses and findings, and at worst, simultaneously reify and conceal oppressive ways of thinking and doing.

        IFLT is of particular significance in conversations surrounding violence against Indigenous women, and in addressing the underrepresentation of Indigenous women in the political sphere.

        In the former, it is common to encounter the sentiment that patriarchy was only introduced to Indigenous communities through European contact. However, Indigenous women have faced gendered violence for thousands of years.[2] There is no doubt that colonization heightened this violence through a renewed commitment to gender injustice and the addition of race as a new link on the chain of oppression, but denying the existence of pre-contact gendered violence in turn denies that Indigenous laws contain viable options for addressing it. Further, calls for a return to pre-colonial or “traditional gender roles” limit Indigenous women’s agency and “are used to deny sexism in indigenous communities today.”[3] Without IFLT, it is easy to miss these imperative nuances.

        In the latter, it is clear that Indigenous women are “frequently excluded from formal self-governance and self-determination practices.”[4] Less clear are the reasons for this. It is useful to consider the ways in which Indigenous women have historically been forced to choose between women’s rights and Indigenous rights – the two are often seen as mutually exclusive and inherently antagonist. Because of the small wins enjoyed as a result of the Indian Act, some Indigenous men are reluctant to risk losing the gains they have made, despite their artificiality. Here, IFLT can aid in advocating for a new system of governance altogether – one that no longer comes at the expense of Indigenous women.

        Both examples demonstrate the centrality of power and oppression when it comes to conceptualizing solutions to issues involving Indigenous women. Other theoretical approaches fail to “draw out gendered power dynamics as they occur in legal processes, reasoning, and the interpretation of principles” and to engage meaningfully “with claims about gender, tradition, culture, and legal agency.”[5] For all of these reasons, IFLT is best poised to succeed where other theories have fallen short.

Join us as we explore the contemporary and historical realities related to Indigenous women for the next two weeks.

Until next time,

Team ReconciliAction YEG

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[1] Emily Snyder, “Indigenous Feminist Legal Theory” (2014) CJWL 26:2 at 367.

[2] Emily Snyder, Val Napoleon and John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2015) 48:2 UBC L Rev 593 at 628.

[3] Ibid, at 611.

[4] Snyder, supra note 1 at 366.

[5] Ibid, at 367.

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In the Media: Last Week in Edmonton

Tansi Nîtôtemtik,

        On October 4, the University of Alberta’s Faculty of Arts hosted What Comes Next: Political Afterlives of the Truth and Reconciliation Commission. The roundtable discussion featured big names (Glen Coulthard, Audra Simpson, and Robert Nichols), and even bigger ideas. Of particular note was the panel’s focus on the dark side of reconciliation – a dark side that, like last week’s terrorist attack, is generally not an issue most Canadians expect.

        Nichols drew a parallel between the ‘Jewish Question,’ and the Holocaust it enabled, to the ways in which Canada has been working to solve its ‘Indian Problem.’ He encouraged attendees to consider that what we are really dealing with in this country is a white supremacy problem. He also discussed the inherent contradictions in Canada’s political and juridical systems that make the framework of reconciliation at best, weak, and at worst, useless. After all, how can a country, whose capitalistic economy is based on continuous acquisition and growth, honestly accommodate Aboriginal title? As Nichols suggested, “it might not be possible.”[1]

        “Reconciliation,” Simpson explained, “is simultaneously impossible and irresistible.”[2] She noted that rather than being a meaningful tool for moving forward, Canada’s reconciliation project is instead a strategic and re-subjectifying political tool being wielded against Indigenous peoples and keeping them “in their place, as wounded.”[3] It is cunningly constructed to ensure that anyone who speaks out against reconciliation is placed in an antagonistic position to former students of residential schools and accordingly critics become the villains in a twisted trick of fate. Simpson’s conclusion was that reconciliation is simply the government’s latest attempt to make Indigenous peoples disappear.

        Like Simpson, Coulthard focused on alternative ways of looking at reconciliation. In his opinion, however, the apparatus of reconciliation was crafted to pacify Indigenous peoples following the Oka Crisis and the Red Power movements that gained international attention in the 70s, 80s, and 90s. Institutional reconciliation was “deployed”[4] as a means of subduing Indigenous militancy and calming the economic uncertainty that accompanied it. The language of reconciliation, Coulthard further argued, pathologizes Indigenous peoples and replaces the need for political reorganization with a need for healing. He advocated the development of a “combative consciousness”[5] as opposed to giving in to patriarchal, capitalist, state control. Ultimately, Coulthard admitted, he is more interested in the “political pre-lives of reconciliation”[6] than he is with the afterlife.

        The panelists were, in plainest terms, bad-ass. Their observations served as an important wake-up call for those of us who work within the context of the TRC, reminding attendees that in some ways, reconciliation can itself be a “mechanism of violence.”[7] Many thanks to the inspiring speakers and to the political science students and faculty members that made it happen.

Until next time,

Team ReconciliAction YEG

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[1] Robert Nichols, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[2] Audra Simpson, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[3] Ibid.

[4] Glen Coulthard, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[5] Ibid.

[6] Ibid.

[7] Ibid.

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Canada's Residential School System: A Primer

Image retrieved from http://www.thecanadianencyclopedia.ca/en/article/aboriginal-people-education

Tansi Nîtôtemtik,

        Jo-Ann Episkenew argues that “of all the policies that the colonial regime initiated, the policy that established and regulated the residential school system had, and continues to have, the most far-reaching destructive effects”[1] on Indigenous peoples in this country. Considering that even conservative estimates of attendance indicate more than 150,000[2] First Nation, Métis, and Inuit students passed through the system, this argument is well-founded.

        In the earlier days of the policy, attendance was not mandatory. However, with an amendment to the Indian Act in 1920, “every Indian child between the ages of seven and fifteen”[3] was forced to attend. Parents who resisted faced fines, jail time, and violence from the Indian Agents and other government officials tasked with enforcing the policy. This added to the reasonable distrust held by many Indigenous communities towards government officials to this day.

        The point of these schools was neither to provide Indigenous children with a formal education, nor to ensure a healthy and happy childhood. The point was to ‘break’ them from their cultures, their families, and their identities.[4] Sir John A. Macdonald, Canada’s first prime minister, felt that this break was necessary as an Indigenous child who remained with their parents would simply be “a savage who can read and write.”[5] Allowing children to remain with their parents was accordingly in direct conflict with the state’s aim to “kill the Indian in the child.”[6] Episkenew notes that:

Understanding culture as the complete way of life of a people, the regime mandated school officials to change every aspect of the children’s culture: their dress, food, language, religion, manner of working, and interpersonal relations. Understanding that language is a critical vehicle of cultural transmission, colonial officials identified eradication of the student’s Native languages, followed by their acquisition of English, as paramount to their resocialization efforts. […] School officials punished students who they caught speaking in their Native languages. Often that punishment was swift and severe.[7]

        The schools also maintained less than adequate conditions and failed to provide enough or nutritious food, clean or warm clothing, and meagre healthcare. This was in addition to the lax hiring standards for positions that, “because they afforded staff unlimited access to children, absolute power over those children, and little scrutiny […], attracted disproportionate numbers of pedophiles.”[8] Sexual, physical, emotional, and mental abuse was rampant. Many children left for residential school and never returned to their families. The records for missing and deceased students are largely incomplete and we will never know the full loss of life that the schools facilitated.

        The TRC findings evidence what survivors and their communities have long known; the residential school system was a sordid, centuries-long violation of human rights. Operated through the coordinated efforts of the federal and provincial governments, and Roman Catholic, Anglican, United, Methodist, and Presbyterian churches, these schools changed the lives of students and their families forever. For the rest of this week, our blog posts will be dedicated to exploring Alberta’s particular history, the concept of intergenerational trauma, and the legacy that residential schools have left behind.

Until next time,

Team ReconciliAction YEG

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[1] Jo-Ann Episkenew, Taking Back our Spirits: Indigenous Literature, Public Policy, and Healing (Winnipeg: University of Manitoba Press, 2009) at 44.

[2] Truth and Reconciliation Commission of Canada, “The Survivors Speak” in The Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at vi.

[3] Episkenew, supra note 1 at 46.

[4] Truth and Reconciliation Canada, Honouring the Truth, Reconciling for the Future: The Executive Summary (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 2.

[5] Ibid.

[6] Truth and Reconciliation Commission, official website: http://www.trc.ca/websites/trcinstitution/index.php?p=39.

[7] Episkenew, supra note 1 at 47-48.

[8] Ibid, at 50.

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What is the Biggest Problem with Reconciliation?

Tansi Nîtôtemtik,

        A colonizer must jump two hurdles in order to succeed in a nation-building project: Indigenous societies must be dissolved, and a new, colonial society must be erected on the expropriated land of the original inhabitants.[1]

        The TRC’s Executive Summary exposes a plethora of the social, legal, and political processes mobilized by Project Canada to ensure these hurdles were jumped. However, from its first sentence, the summary frames ‘Canada’s Aboriginal policy’ as a thing of the past. Gone are the days where “the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada.”[2] Or are they?

        One of the biggest problems with truth and reconciliation initiatives is the propensity of these paradigms to relegate colonial violence to an event from the past. When this happens, reconciliation can look more like a forced acceptance of that status quo, as opposed to an actual means of creating new relationships and realities. An alternative approach is to consider “settler colonization [as] a structure rather than an event,”[3] a structure that, in Canada, is still very much in place to this day.

        This truth is one that Canadian government and other institutions are invested in shrouding or denying. As our blog post on Wednesday will discuss further, settler Canadians rely on myths of themselves as benevolent peacemakers and on myths of Indigenous peoples as vanishing, or vanished, in order to justify the ongoing occupation of Indigenous lands. A historical nation-building narrative based on progress, prosperity, and peace means that nothing has to change.

        Other problems with the politics of remembrance, or “distraction,”[4] include the tendency of reconciliatory discourse to cast indigenous people as victims who experiences are strictly held in relation to colonialism, and for this victimization to become a spectacle for settler consumption.[5] This will be a theme we revisit in a blog post later in the year. As numerous scholars have pointed out, attempts to reconcile are painfully ironic when harm is still ongoing: it's "a little like accepting being bandaged by your armed assailant while he is still ransacking your house."[6]

        Further, truth and reconciliation commissions can work to “erase the resiliency and resurgence of indigenous communities.”[7] Of course, colonization has been devastating for indigenous communities – but as Friday’s blog post will demonstrate, Canada’s objectives of elimination and erasure remain unrealized.

        Despite these risks, truth and reconciliation initiatives like the TRC create opportunities for critique and engagement. We hope to provide you with just that over the rest of this week.

Until next time,

Team ReconciliAction YEG

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[1] Patrick Wolfe “Settler Colonialism and the Elimination of the Native” (2006) Journal of Genocide Research 8:4 at 388.

[2] Ibid, at 390.

[3] Truth and Reconciliation Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada), 2017, at page 1

[4] Jeff Corntassel and Christine Bird, “Canada: Portrait of a Serial Killer” in Kiera L. Ladner & Myra J. Tait, eds., Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books (Arbeiter Ring Publishing), 2017, at page 197.

[5] Rachael Yacaa?at George, “Inclusion is just the Canadian Word for Assimilation” in Kiera L. Ladner & Myra J. Tait, eds., Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books (Arbeiter Ring Publishing), 2017, at page 54.

[6] Dian Million, Therapeutic Nations (Tucson: U of Arizona P) 2013, at page 106

[7] George, supra note 5, at 54.

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Will We All Be Alive for #Canada300?

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

⁶Ibid.

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

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

We Will Wait Our Turn, Just Not For Too Long

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

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

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

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

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

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

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

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

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

 

 

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

² Ibid.

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

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.

 

What's Left in the Constitution? The NDP Perspective

The NDP is usually considered the “left wing” party in Canada. They are known for their progressive social and economic policies. Does this focus on change and growth also apply to their policies on the Constitution?

The only explicit mention of the Constitution in the NDP Policy document is present in their discussion of Quebec. One of their stated goals is “Creating the conditions enabling Quebec to sign the Canadian Constitution.”¹ This is a reference to Quebec’s status as the only province to not sign the newly patriated Constitution in 1982. This was done because they lost the veto that they previously had over constitutional changes, and because guarantees of minority language rights threatened their French-only policy, Bill 101.² This position is not described in much depth, but would almost certainly require an opening up of the Constitutional Question. When you try to change one thing in the Constitution, the entire document becomes open to debate. Who knows what other provinces might demand if this were to occur?

Party policies can have constitutional implications even if they are not explicit. One of their policy points is “Abolishing the unelected and unnecessary Senate.”³ The existence of both the House of Commons and the Senate is explicitly identified in the BNA Act.⁴ This would also require the opening up of the Constitutional Question, getting buy-in from sufficient number of provinces, all of whom would have likely competing requests. This would also ultimately require the Senate to vote for it’s own dissolution.⁵

A policy point with more subtle constitutional implications is the commitment to replace our first past the post electoral system with mixed member proportional representation.⁶ The BNA Act does not explicitly describe a first past the post voting system. However, it does specify that each electoral district will elect one Member of Parliament.⁷ Mixed member proportional representation causes a certain number of seats to be elected based on voting for a specific person on the ballot (as we already have), but other seats would be filled from party lists based on vote proportions.⁸ This seems to violate, at least in spirit, the BNA Act.

It is easy to find a party which follows at least an approximation of one’s ideals. However, ideals are not always enough. It is important to look carefully at a party’s policies and consider how practical their implementation would actually be. There are times when, constitutionally speaking, a good idea can be much easier said than done.

 

¹ The New Democratic Party of Canada, “Policy of the New Democratic Party of Canada” (April 2016) at 20, online: <xfer.ndp.ca/2017/Documents/2016_POLICY-EN.pdf>.

² The Canadian History Project, “Why Quebec Refused to Sign in 1982,” online: <http://www.canadahistoryproject.ca/1982/1982-07-quebec-refusal.html>.

³ Supra note 1.

⁴ Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 17, reprinted in RSC 1985, Appendix II, No 5.

⁵ Constitution Act, 1982, s 38(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

⁶ Supra note 1, at 19.

⁷ Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 40, reprinted in RSC 1985, Appendix II, No 5.

⁸ Aaron Wherry, “The Case for Mixed Member Proportional Representation,” Macleans (8 December 2014), online: <www.macleans.ca/politics/the-case-for-mixed-member-proportional-representation/>.

Liberal Party of Canada - New Constitution

This week, we examine some of the political parties in Canada. We start with the governing party, the Liberal Party of Canada, and its new internal constitution. Check back each day as we feature the Rhino Party, the NDP, the Libertarian Party, and the Conservative Party.

Coincidentally, as we recognize the 150th anniversary of Canada’s first constitution, the BNA Act, the leader of the Liberal Party is the son of the Prime Minister who patriated Canada’s new constitution in 1982. A constitution provides structure and guidance to lawmakers; it is their ultimate rulebook when drafting new laws and managing existing ones. Similarly, each political party also has a constitution to set out the parameters of its internal governance along with bylaw documents, similar to bylaws that corporate entities establish.

In 2016, the Liberal Party of Canada revamped their constitution, voted it in on May 28th, and put it into effect on January 1st, 2017.[1] The goal was to make membership in the party more accessible to a larger number of people and to create a permanent political campaign.[2] Among the changes are waiving the $10 member registration fee, increased participation in the policy development process, and allowing any registered Liberal member to attend conventions. This marks the first time that a major federal political party has offered free membership.[3]

The new 17-page constitution with its 10 bylaws replaces the previous 81-page document.[4] It streamlines the party’s bureaucracy, allowing readers to understand the party’s organization and increasing flexibility for individuals to participate in the political process.[5] The constitution’s preamble states that the Liberal Party “strives to provide a flexible and democratic structure whereby all Canadians can obtain [information and participate in] action both electoral and non-electoral.” The goal is to reach and include more individuals who will support the party in future elections.

The constitution was met with strong opposition. Despite its commitment to transparency and increased democracy, critics warned that the grassroots accessibility was not as promising as had been advertised. Some local party officials and regional members criticized the lack of openness, transparency, and consultation. They alleged that the executive was trying to “strong-arm” it into effect.[6] The party leader and top executives appeared to have expanded their concentrated power over campaigns and policy.[7] Critics argued this was a:

potentially controversial change that would discontinue the historic tradition of developing party policy positions for election campaigns through national convention debate and votes on resolutions from grassroots party members across the country.[8]

To alleviate these concerns the executive amended the constitution just hours before the vote and Trudeau addressed directly and publicly the allegations of increased centralized power.[9] The amendments and Trudeau’s speech to increase support were successful. Ultimately, the convention delegates voted strongly in favour: 1,988 to 66.

Although there was much opposition to this new constitution, members clearly saw the need for a complete overhaul. Criticism has been subdued but it is possible that it might arise again as the party moves forward under the new constitution. Having suffered election setbacks in the last few elections, the new governing structure might aid the Liberal Party in future elections.

 

[1] Liberal Party of Canada, “Towards a More Open Liberal Party” (2017), online: Federal Liberal Agency of Canada <https://www.liberal.ca/1party/towards-a-more-open-liberal-party/>.

[2] Lee Berthiaume, “A Leaner Liberal Machine: Trudeau Convinces Party Members to Sign off on New Constitution,” National Post (28 May 2016), online: Canada.com <news.nationalpost.com/news/canada/canadian-politics/trudeau-ready-to-take-the-stage-at-liberal-convention-where-members-have-concerns-about-new-constitution>.

[3] Ken Hanly, “Canadian Federal Liberal Party Adopts New Constitution,” Digital Journal (29 May 2016), online: digitaljournal.com <www.digitaljournal.com/news/politics/canadian-federal-liberal-party-adopts-new-constitution/article/466581>.

[4] Tim Naumetz, “Justin Trudeau, Party Brass Set to Gain More Power over Campaigns, Policy Under New Proposed Liberal Constitution,” Hill Times (15 April 2016), online: Hill Times Publishing <https://www.hilltimes.com/2016/04/15/justin-trudeau-party-brass-set-to-gain-more-power-over-campaigns-policy-under-new-proposed-liberal-constitution/58608#>.

[5] Hanly, supra note 3.

[6] Ibid.

[7] Naumetz, supra note 4.

[8] Ibid.

[9] Berthiaume, supra note 2.

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.