University of Alberta Faculty of Law Blog

In the Media: Peter Hogg on Ktunaxa & Religious Freedom

Tansi Nîtôtemtik,

        On Wednesday, the Centre for Constitutional Studies hosted two events featuring constitutional scholar, lawyer, and professor emeritus Peter Hogg. In the first event, Hogg provided a critique of the SCC’s decision in Ktunaxa First Nation v British Columbia (the case we introduced in Tuesday’s blog).

        According to Hogg (and many other members in the audience), the outcome of this case was surprising. The majority concluded that the decision to move ahead with development did not violate the Ktunaxa’s freedom of religion, but in so doing, Hogg argued, they applied “an analysis that would be expected for a non-Indigenous claim.”[1] The nature of Indigenous spiritual beliefs and practices are really not analogous to traditional western religions like Christianity or Judaism. Rather, they are tied to the land, and intrinsically connected to the plants and animals that live on the land. In focusing only on section 2(a) of the Charter,[2] Hogg noted, the Court mischaracterized the right in question and ultimately “dealt with the claim inadequately.”[3]

        Importantly, infringements on a group or individual’s section 2(a) Charter rights can be justified by section 1.[4] Section 1 of the Charter, however, does not apply to Aboriginal rights under section 35 of the Constitution.[5] Although the government can (and more often than not, does) infringe on Aboriginal rights, the processes for determining whether the action is justified are very different. Hogg mentioned it was very unusual to see an Aboriginal claim dealt with this way – “No other case has treated this kind of claim so lightly!”[6] In his opinion, “it doesn’t fit the pattern at all.”[7]

        In terms of the majority’s statement that “the state’s duty under 2(a) is not to protect the object of beliefs,”[8] Hogg highlighted the shortcomings of this line of thinking and said, “I suppose you could continue to believe in something that disappeared, but that’s kind of a silly point.”[9] He also noted ironically that “if something was going to make God go away, I think Christians would be pretty upset!”[10] And yet, the activities that may well result in the Grizzly Bear Spirit’s disappearance were characterized as reasonable and not enough of an issue to prevent the project from moving forward.

        After his talk, Hogg opened the floor to questions. One member of the audience spoke to the contradictions between the value the SCC has placed on reconciliation and rights in past decisions, and the lack of these in this case and on the ground. Another audience member problematized the way that this decision is based on a conceptualization of Indigenous people and their beliefs as frozen in time wherein claims will fail either because they cannot be proven or are no longer relevant. The absurdity of this catch-22 scenario was not lost on Hogg, who agreed that it appeared the Court did not regard the Ktunaxa claim as either a legitimate religious belief or a valid Aboriginal right – if they had, it is unlikely that the inevitable elimination of the Grizzly Bear Spirit would be where we ended up.

Until next time,

Team ReconciliAction YEG

- - - - - - - - - - - - - - - - - - - - - - -

[1] Peter Hogg, (First Nations’ Freedom of Religion, delivered at the University of Alberta, 31 January 2018) [unpublished].

[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] at s 2(a) provides: “Everyone has the following fundamental freedoms: freedom of conscience and religion”.

[3] Hogg, supra note 1.

[4] Charter, supra note 2, at s 1 provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[5] Part II of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35 provides: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

[6] Hogg, supra note 1.

[7] Ibid.

[8] Ktunaxa First Nation v British Columbia, 2017 SCC 54 at para 71.

[9] Hogg, supra note 1.

[10] Ibid.

- - - - - - - - - - - - - - - - - - - - - - -

Join the conversation by following us on Twitter: @ReconciliYEG; Facebook: www.facebook.com/reconciliActionYEG/; and Instagram:@reconciliactionyeg.

To receive daily alerts to our blog, email the words "add me" to reconciliactionyeg@gmail.com.

Ktunaxa Grizzly Bear Spirit: An Indigenous Charter Rights Argument

“Jumbo Valley,” retrieved from https://www.desmog.ca/2014/10/06/ktunaxa-chief-willing-jail-to-stop-jumbo-glacier-resort-sacred-spiritual-place-qat-muk.

Tansi Nîtôtemtik,

    Yesterday’s post overviewed the cases involved in establishing the scope of Aboriginal rights and whether government interference with these rights is justified. Although these rights are protected under section 35 of the Constitution Act, 1982, there is another class of rights that flow from the Constitution: The Canadian Charter of Rights and Freedoms. These constitutionally-recognized rights were the basis of the Ktunaxa’s freedom of religion claims in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations).¹

    The Ktunaxa First Nations traditional territories include an area called “Qat’muk” located in a Canadian valley in the northwestern part of the larger Ktunaxa territory, the Jumbo Valley, about 55 kilometres west of the town of Invermere, British Columbia.² The respondent to the case, Glacier Resorts Ltd., sought to build a year-round ski resort in Qat’muk. For over twenty years, the resort had been negotiating with the B.C. government and stakeholders, including the Aboriginal peoples who inhabit the valley, the Ktunaxa and the Shuswap, on the terms and conditions of the development.³ During this process, the Ktunaxa aired their concerns about  the ski resort being built within their traditional territories, as the proposed location was home to the Grizzly Bear Spirit (Kⱡawⱡa Tukⱡuⱡakʔis,), a spirit central to their religious beliefs and cosmology.⁴ However, despite the Ktunaxa’s protests, the Minister declared that reasonable consultation had occurred and approved the project.⁵

    The central issue of Ktunaxa Nation was whether,“the British Columbia Minister of Forests, Lands and Natural Resource Operations erred in approving a ski resort development, despite claims by the Ktunaxa that the development would breach their constitutional right to freedom of religion and to protection of Aboriginal interests under s. 35 of the Constitution Act.”⁶

    When this dispute made its way to the Supreme Court, the court decided that the Minister’s decision was reasonable “in the circumstances,” as the Ktunaxa took the position that no permanent development in the area could be allowed -- ultimately “placing the Minister in a difficult, if not impossible, position.”⁷ Further, the Ktunaxa’s Charter claim was dismissed, with the court holding that,

“the claim does not engage the right to freedom of conscience and religion under s.2(a) of the Charter. Section 2(a) protects the freedom of individuals and groups to hold and manifest religious beliefs... The Ktunaxa’s claim does not fall within the scope of s.2(a) because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs is infringed by the Minister’s decision to approve the project.”⁸

        Although Ktunaxa Nation reflects a creative approach towards establishing Aboriginal rights, particularly when seeking to establish traditional religious beliefs of a First Nation, the case nonetheless represents two steps back as we attempt to move forward in reconciliation. Kathryn Teneese, chair of the Ktunaxa Nation Council, voiced her concerns of the Supreme Court’s ruling, stating "I felt that we were less than, in our right to our beliefs.”⁹ The case was not a failure for the Ktunaxa, but rather emphasized the failure of the courts to make a decision that reflected the current reconciliation efforts of Canada. As we see more cases involving Indigenous rights to religion within the court system, we can only hope the SCC can alter its perspective, and recognize the importance of protecting these sacred religious spaces -- not only for Indigenous people, but for Canada as a whole.

 

Until next time,

Team ReconciliAction YEG

- - - - - - - - - - - - - - - - - - - - - - -

[1] Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII).

[2] Ibid at para 3.

[3] Ibid at para 4.

[4] Ibid at para 5.

[5] Ibid at para 6.

[6] Ibid at para 1.

[7] Ibid at para 154.

[8] Ibid at para 8.

[9] Chantelle Bellrichard, “Ktunaxa profoundly disappointed but undeterred by Supreme Court ruling”, CBC News Indigenous (3 November 2017), online: http://www.cbc.ca/news/indigenous/supreme-court-canada-ktunaxa-1.4385234.

- - - - - - - - - - - - - - - - - - - - - - -

Join the conversation by following us on Twitter: @ReconciliYEG; Facebook: www.facebook.com/reconciliActionYEG/; and Instagram:@reconciliactionyeg.

To receive daily alerts to our blog, email the words "add me" to reconciliactionyeg@gmail.com.

Alberta Residential School Experience

Image retrieved from http://thechildrenremembered.ca/photos/?id=1113&school=edmonton

“Dear Mom and Dad,

[...] the main reason for my writing is that I want to go home. I’m not homesick or anything, just…this morning at 2 a.m. [he] woke us up and started to preach to us on how stupid the Indian was…Then this morning as 5 a.m. [he] got us up to go and scrub the basement. It was there I decided I’d like to go home because [he] slapped me around for not getting a haircut that morning…so don’t be surprised if you see me home pretty soon. I was planning to try to stick it out the whole term, but [he] threw a monkey-wrench into my plans.

P.S. the Christmas I spent here was the worst one in my whole life”

-Letter from Edmonton Indian Residential School student to his parents, Jan. 8, 1962. [1]

 

Tansi Nîtôtemtik,

    As yesterday’s blog post introduced you to Canada’s painful legacy of the residential school system, today we look to its impact closer to home. The Indian Residential School Settlement Agreement identified a non-exhaustive list of 139 schools. Of that list, there were 25 residential schools within Alberta, more than any other province or territory in Canada. [2] Today we focus on the Edmonton Indian Residential School (IRS), and the children’s experiences within it’s dark walls.

     The Edmonton IRS opened its doors in 1924, in coordination with the United Church of Canada. [3] The school replaced the Red Deer IRS, because of it’s closer proximity to the Treaty 6 communities in Northern Alberta. Similarly to the Red Deer IRS, the school operated on a half-day system, with classes in the morning and vocational training (primarily farming) in the afternoon. Farming contributed to the institute's finances; however, friction arose as the farm work replaced time for academic study. By 1953, farming operations at the school ended, along with the half-day system. [4]

     With World War II decreasing  government spending on the school, maintenance and cleaning were a major issue for Edmonton IRS, leading to poor water quality and skin disease among the children. Staff shortages were also a problem. Principal Findlay Barnes wrote at the time, “Cheap, inefficient help has been [the school’s] downfall.” [5] Full enrollment of students (150 by 1931) was also a setback for the school, as officials began relocating children from communities in British Columbia, creating an ever greater distance between the children and their families. [6]

     Rumours spread of abuse and mortality, one student writing home, “please send for us if you do not want us to come home in caskets.” [7] Allegations of sexual abuse of the children by the school’s minister were also brought to the attention of church officials. On September 28, 1960, the minister was convicted on charges of gross indecency and received a one-year suspended sentence with psychiatric treatment. By the late 1950’s, the Department of Indian Affairs Officials called for the closure of the school, with a growing preference to place the students in foster homes where they could attend day schools.[8] The Edmonton IRS finally closed in 1966, but the effects of the school on the survivors, their families and communities are still felt today.

 

Until next time,

Team ReconciliAction YEG

- - - - - - - - - - - - - - - - - - - - - - -

[1] Residential School Archive Project: The Children Remembered, Edmonton Indian Residential School (The United Church of Canada Archives), online: <http://thechildrenremembered.ca/school-locations/edmonton/>.

[2] Truth and Reconciliation Commission, official website: <http://www.trc.ca/websites/trcinstitution/index.php?p=12>.

[3] Children Remembered, supra note 1.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

- - - - - - - - - - - - - - - - - - - - - - -

Join the conversation by following us on Twitter: @ReconciliYEG; Facebook: www.facebook.com/reconciliActionYEG/; and Instagram:@reconciliactionyeg.

To receive daily alerts to our blog, email the words "add me" to reconciliactionyeg@gmail.com.

KAIROS Blanket Exercise: Learning Canada’s Dark History

Tansi Nîtôtemtik,

In light of the TRC Calls to Action, in particular number 28, which calls upon law schools in Canada to inform their students of the history and legacy of the residential school system¹, all incoming 1Ls to the faculty participated in the KAIROS Blanket Exercise last Tuesday. The exercise was facilitated by Jodi Stonehouse, radio host of Acimowin, Koren Lightening-Earle, Faculty of Law Alumna, and Professor Hadley Friedland.

So, what is the KAIROS Blanket Exercise? The exercise is an interactive learning experience that covers over 500 years of history in roughly two hours. The participants of the exercise, this year’s 1Ls, took on the role of the Indigenous peoples of Canada, while the facilitators acted as colonizers. Blankets are utilized to represent Indigenous lands, and as time progresses from pre-contact to colonization, blankets are removed as Indigenous lands are occupied by the colonizers.

Processes of cultural genocide are read aloud by the participants. Such processes depict Canada’s Aboriginal policy, which aimed to assimilate the Aboriginal peoples in an effort to terminate their existence as distinct legal, social, cultural, religious, and racial entities in Canada.² The residential school system is one major example of cultural genocide, a system funded by Canada and operated by certain religious organizations to “educate” Aboriginal children. Although on its face these schools were a learning institute, they were created primarily to break the children’s link to their culture and identity.³ The Canadian government labelled Aboriginal parents as unfit to parent, and thus removed the children from their families and communities. Their languages and culture were suppressed, with harsh discipline for those that went against these rules.⁴ Between the government’s underfunding for Aboriginal policy and the church’s resolve to convert as many children as possible, these schools became sites of “hunger, overwork, danger and disease, limited education, and, in tens of thousands of cases, physical, sexual, and psychological abuse and neglect.”⁵ 

Although the residential school system is often mistaken as “something of the past,” the last school shut its doors in 1996. The effects of the system continue to be felt today by survivors, their families, and their communities. In an effort to begin to repair the harms done by the schools, the Indian Residential Schools Settlement Agreement provided compensation to those students who attended one of the 139 residential schools and residences. The federal government has estimated at least 150,000 First Nation, Métis, and Inuit students have passed through the system.⁶ The KAIROS Blanket Exercise is one example of reconcili-action, by educating individuals of Canada’s dark past we can begin to work together towards a future in reconciliation.

(Canada’s dark history involving the residential school system will be further discussed next month in the blog.)

 

Until next time,

Team ReconciliAction YEG

- - - - - - - - - - - - - - - - - - - - - -

[1] Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada), 2015, at page 3.

[2] Truth and Reconciliation Commission of Canada, Canada's Residential Schools: The History, Part 1, Origins to 1939: The Final Report of the Truth and Reconciliation Commission of Canada, Volume I (McGill-Queen's University Press), 2015, at page 3.

[3] Ibid, at 4.

[4] Ibid, at 5.

[5] Ibid, at 131.

[6] Ibid, at 4.

- - - - - - - - - - - - - - - - - - - - - - -

Join the conversation by following us on Twitter: @ReconciliYEG; Facebook: www.facebook.com/reconciliActionYEG/; and Instagram: @reconciliactionyeg.

To receive daily alerts to our blog, email the words "add me" to reconciliactionyeg@gmail.com.

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.

Separate But Inconvenient?

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

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

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

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

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

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

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

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

 

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

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

³ Supra note 1.

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

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

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

⁷ Supra note 5.

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

⁹ Supra note 4.

Someday We'll Find It, The Rainbow Connection

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

 

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

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

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

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

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

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

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

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

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

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

 

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

Throwing it Back on Tuesday: People Edition

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

 

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

 

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

 

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

 

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

 

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

 

 

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

² Ibid.

³ Ibid.

⁴ Ibid.

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

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

⁷ Ibid.

⁸ Ibid.

⁹ Ibid.

¹⁰ Aylsworth & Trovato, supra note 5.

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

¹² Ibid.

 

Thomas D'Arcy McGee, Creator of Canadian Identity

Canada is a nation of nations, bringing people of many cultures together from all across the world. Multiculturalism was formally recognized as a vital part of Canadian life and identity by Prime Minister Pierre Elliott Trudeau in 1971.¹ Despite this relatively recent formal recognition, multiculturalism  has been essential to our country from the very beginning. Writings by Thomas D’Arcy McGee, one of the Fathers of Confederation, mention the topic as early as the 1850s.

McGee was born in Ireland in 1825. He began careers in publishing and politics as a radical, pushing for Irish independence from The United Kingdom. This radicalism forced McGee to flee the country in 1848, first moving to the United States, and eventually settling down in Montreal in 1857.²

As he aged, McGee mellowed. He changed to what one biographer refers to as an “extreme moderate”.³ He found a Canada (at the time only referring to to Ontario and Quebec, then administered as a single province along the St. Lawrence and Great Lakes) divided, with infighting between English and Scottish Protestants on one side and French Catholics on the other. Irish Catholics and other minorities did not fit in with either side. McGee wrote from an immigrant perspective, viewing a mixing of cultures and immigration as a strength in Canada.  He considered this multi-cultural formation something from which we could build a shared identity.⁴ He called for the construction of “a new northern nationality” built on that mixing of cultures.⁵ He also wrote favourably about the difference between Canada and the United States.⁶

McGee sidestepped partisan politics, sitting with the Reformers, Conservatives, and as an independent during his time in elected office. He was a delegate at the Charlottetown and Quebec Conferences in 1864,⁷ and was instrumental in negotiating the settlement of issues regarding religion and language in education.⁸ This agreement gave power over education to the provinces while enshrining minority religious and language rights, and is found in s 93 of the British North America Act.⁹

Irish secessionists known as Fenians were becoming a powerful political group in The United States. McGee opposed their radicalism, especially when they attempted an invasion of Canada in 1866. This was a great change from his younger self, showing more maturity and an acceptance of the British Crown, assuming a certain amount of autonomy for local governments. He was murdered in 1868, most likely by a Fenian operative. Thomas D’Arcy McGee, someone who had lived to unite Canada, became the first political assassination victim in the history of our country.¹⁰

¹Canadian Museum of Immigration at Pier 21, “Canadian Multiculturalism Policy, 1971” (2016), online: <http://www.pier21.ca/research/immigration-history/canadian-multiculturalism-policy-1971>.

²“Thomas D’Arcy McGee” in The Quebec History Encyclopedia, online: <http://faculty.marianopolis.edu/c.belanger/quebechistory/encyclopedia/ThomasDArcyMcGee-HistoryofCanada.htm>.

³Jeffrey Simpson, “Thomas D’Arcy McGee - The Man Who Saw Beyond Confederation”, The Globe and Mail, (13 April 2013), online: <www.theglobeandmail.com>.

⁴Josephine Phelan, “D’Arcy McGee’s Poetry; Its Place in his Biography”, (1957) CCHA, Report, 24 , at 38, online: <http://www.umanitoba.ca/colleges/st_pauls/ccha/Back%20Issues/CCHA1957/Phelan.pdf>.

⁵“Thomas D’Arcy McGee”, supra note 2.

⁶Phelan, supra note 4, at 31.

⁷“Thomas D’Arcy McGee”, supra note 2.

⁸Simpson, supra note 3.

⁹Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 93, reprinted in RSC 1985, Appendix II, No 5.

¹⁰“Thomas D’Arcy McGee”, supra note 2.

 

Goodbye Deirdre, Hello Allison!

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

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

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

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

How To Think Like A Lawyer for 1Ls and Up: Existential Questions and Casuistry*

*in its original, non-pejorative meaning: "The resolving of moral problems by the application of theoretical rules."

 

see https://en.oxforddictionaries.com/definition/casuistry

 

There is supposed to be humour in what you'll read below. It is also an example of the analytical approach you will have to learn in order to analyze questions of law.  There were at least 3 qualified lawyer types, and a gaggle of PHDs from various disciplines, involved in the discussions relating to these deep existential questions.

 

 

City v Scholar

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

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

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

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

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

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

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

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

 

War: what is it good for? Independence

Dear Honoured Readers,

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

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

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

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

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

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

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

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

Respectfully,

The Dominion

 

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

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

[3] Standing Army, supra note 2.

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

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

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

[7] Ibid.

[8] Ibid.

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

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

Breaking Bad Brexit News: Ms May May Not, At Least Not Yet

 

The UK QB ruled unanimously (3-0) this fine English morning that the Tory gov’t cannot use the Crown’s prerogative to initiate the UK’s withdrawal from the EU. The decision to withdraw or not – the decision whether to give notice under the applicable EU treaty – is for Parliament to make, not the party in power in Parliament; aka the “gov’t” or the Crown.

[111] for the reasons we have set out, we hold the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.

R (Miller) v Secretary of State for Exiting the European Union 2016 EWHC 2768 (Admin)

see http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.pdf

A spokesperson from the Crown – or UK gov’t – or the Tory party, pick your poison, announced, as one might expect, that the decision will be appealed.

 A speaker, yesterday, at a lecture I attended, used the line Henry 2 v Henry 8 line to describe the possible results, saying that, of course, the decision wouldn’t be put quite that way. Under that description, the score is now H8 2, H2 1 at the end of the 2nd period. As much as I’d love to be able to claim it, it’s not my concoction.

In a “I’m not sure how it’s related but he’ll eventually grope towards an explanation development”, Donald Trump’s campaign spokestwitter has twittted that the Donald, hisself, blames “this tragic interference by unelected, wig wearing, black dress wearing elites with the will of the true representatives of the pure wool people in the United Kingdom on ‘Crooked Hillary’" and that he and Vladamir Putin remain ready, willing, and able to assist the British people in the protection of their "precious bodily fluids".

In the audio version of the twit, it's possible to hear what sounds like goats an and sheep in the background.

In Scotland, substitute "water of life" for precious bodily fluids, even if it's (shudder) Laphroiag.

 

Hey, Premier, Leave That French Alone!

Cher Monsieur ou Madame,

School, language, religion, and culture are often linked in society. In 1867, things like language and culture were seen as local matters. This is why section 93 of the BNA Act recognized school as a provincial responsibility, and recognized the rights of French Catholics and English Protestants to keep separate schools.¹ This acceptance was challenged in the 1890s in what was called The Manitoba Schools Question.

Section 93 of the BNA Act has some very convoluted language. Essentially means that the minority rights to French Catholic schools in Ontario and English Protestant schools in Quebec were protected from interference by the provincial government and the religious and linguistic majority. It also guaranteed that new provinces entering Confederation who had separate school divisions could keep them. If these protections were breached, the federal government was empowered to cancel the legislation containing that breach.²

These provisions were particularly important to the founders of Manitoba in 1870. The wording of s. 93 was closely paralleled in the the Manitoba Act.³ Manitoba had been founded in a response to Louis Riel’s Red River Rebellion, the culmination of tensions between French Catholic Métis and English speaking Protestant settlers. At the time, the population was roughly equally French and English speaking.⁴

Over time, these demographics shifted. By 1890, English Protestants from Ontario had flooded into Manitoba, creating a large majority that resented paying for two school systems.⁵ Premier Thomas Greenway was one of those immigrants from Ontario. Greenway’s government introduced the Public Schools Act⁶, which replaced the two school systems with one non-denominational system, in direct contravention of both the BNA Act and the Manitoba Act. In addition to cutting off funding and support for French Catholic schools, Greenway removed bilingual provisions of the Manitoba Act, making English the only official language of the courts and government.⁷

This resulted in two important trials that went to the United Kingdom’s Judicial Committee of the Privy Council (JCPC), at time Canada’s highest court. The first was Winnipeg v. Barrett⁸ where the JCPC held that the new laws did not violate s. 93. The crux of the position was that s. 93 specified that separate schools had to exist in legislation or practice prior to the establishment of the province. Because the separate systems were established at the creation of Manitoba in 1870, they could be removed. This decision was reversed in 1895 in Brophy v Manitoba⁹, which authorized the federal government to intervene and reestablish minority rights.¹⁰

Instead of reestablishing the pre-1890 status quo, newly elected Prime Minister Wilfrid Laurier met with Greenway in 1896 to negotiate a compromise. They retained the single school system, but schools with more than forty Catholic children were supposed to hire Catholic teachers. If there was sufficient demand, religious instruction could be added to the school schedule, and French could be used in the classroom.¹¹

This weakening of the protections offered by s. 93 was a major loss for French Catholic language and cultural rights. The Manitoba Schools Question was one of the first major fights post-Confederation between English and French. It would set the tone for relations going forward and other incidents we will continue to explore this week.

 

Vos serviteurs humble et obéissant,

Le Dominion

 

 

 

¹Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 93, reprinted in RSC 1985, Appendix II, No 5.

²Ibid.

³Manitoba Act, 1870, RSC 1985, App II, No 8.

⁴Claude Belanger, “Quebecers, the Roman Catholic Church and the Manitoba School Question: A Chronology” (online: http://faculty.marianopolis.edu/c.belanger/quebechistory/chronos/manitoba.pdf).

⁵WEST/DUNN, “Manitoba Schools Act 1980” , A Country By Consent (online: http://www.canadahistoryproject.ca/1890/).

⁶RSM 1891, c 127.

⁷Joanna Dawson, “Controversy and Compromise over the Manitoba Schools Question”, Canada’s History (online: http://www.canadashistory.ca/Magazine/Online-Extension/Articles/Controversy-and-Compromise-over-the-Manitoba-Schoo).

⁸[1892] AC 445, CR [10] AC 193.

⁹[1895] AC 202, CR [11] AC 56.

¹⁰Supra, note 4.

¹¹Supra, note 5.

Halloween on the Plains of Abraham: Québec Tourism and History

Joyeux Halloween, Mesdames et Monsieurs!

This week, we focus on how the BNA Act and the Constitution Act, 1982, affected Québec. The Dominion team chose this week to focus on Québecois history under Confederation because Friday, November 4th, marks the 35th anniversary of “la nuit des longs couteaux”, or “the night of the long knives”, when Minister of Justice Jean Chrétien (as he then was) met with all the provincial premiers… except Québec Premier René Lévesque.

That’s a scandalous story for later this week, but today, we kick off Québec week by reviewing the Battle of the Plains of Abraham of 1759. Incidentally, every year the City of Québec throws a spooky Halloween party in the Joan of Arc Gardens at the Plains of Abraham. The Plains are Canada’s oldest national historic park, likely named for Abraham “the Scot” Martin, a sailor and fisherman friend to Samuel de Champlain.[1] If you’ve visited Québec City, you’ll likely agree it is aesthetically impressive. Because of its coveted geographic position, France had built up remarkable fortifications around the city to prevent the inevitable British invasion.

During the Seven Years’ War from 1756 to 1763, the British and French colonial forces were vying for economic and territorial expansion in many areas, including North America.[2] The battle at Québec City was for a strategic position in the region. Québec City was the cornerstone of what was known as New France at the time. Recognizing its importance in international ship trade, its access to waterways, and its significance in the fur trade, British forces attempted to siege the city several times.[3] The 1759 Battle of the Plains of Abraham and the 1960 Battle of Sainte-Foy nearby sealed the fate of New France’s subordination to British rule, leading to Québec’s subordination to British confederation 100 years later.

It is estimated that up to 20,000 men rallied to fight for the French Army, which was approximately one third of the population in New France at the time.[4] Unfortunately, despite the high numbers of French fighters, the majority were unprofessional militiamen, with only about 3,700 troops (including approximately 1,800 Indigenous allies) regularly manning the fronts. The British Army’s well-trained professional soldiers only needed about 4,400 regularly placed troops to defeat the French in less than half an hour on the Plains.[5] Both the French and English Generals died from their injuries in the battle.

The French Army surrendered the City just a few days later. Despite the city’s strong fortifications, the French were not confident that the city could withstand British attack. Pressure from residents to surrender was enormous.[6] The French Army decided that it was better to negotiate a surrender than to risk more casualties and destruction to the city. One third of private residences had already been burned down and many more needed drastic repair. Almost all public buildings had been damaged. The formerly French citizens now had to swear allegiance to the British Crown and struggled to maintain their religious freedom.

Compared with most cities in Canada that developed over the last 150 years, Québec boasts a history evident in its architecture. Beautiful stone and brick structures remind one of centuries-old European cities. The fortified walls leave a legacy of the battles for control of this strategic city on the St. Lawrence River. If you have the chance to visit, check out Halloween on the Plains of Abraham from October 1st to November 6. There are Halloween decorations in the parks, haunted tours for families, spooky stories for older children, and scary historical legends and tours for adults.[7] The tours are available in English upon request.

Cordialement,

Le Dominion du Canada 2017

 

[1] “Plains of Abraham (Battlefields Park)”, National Battlefieds Commission, online: <www.quebecregion.com/en/historic-sites/plains-of-abraham-battlefields-park>; “The Tale of a Toponym”, National Battlefields Commission, online: <www.ccbn-nbc.gc.ca/en/history-heritage/site-history/illustrious-park>.

[2] “Plains of Abraham”, National Battlefields Commission, online: <http://www.ccbn-nbc.gc.ca/en/>.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] “Halloween”, Plains of Abraham, National Battlefields Commission, online: <www.ccbn-nbc.gc.ca/en/activities/halloween/>.

ConsTITutional Rights

Dear Madam and/or Sir,

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

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

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

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

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

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

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

Thanks for the mammaries, Ms. Jacob,

The Dominion

 

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

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

[3] Ibid, s 174(2).

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

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

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

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

[8] Ibid.

Worst Dinner Party Ever: Religion and Politics Edition

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

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

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

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

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

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

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

Exactly.

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

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

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

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

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

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

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

 

RAmen,
The Dominion

 

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

Freedom of Expression: From the BNA Act to the Westboro Baptist Church

Dear Sir or Madam,

In our last post we introduced the Canadian Charter of Rights and Freedoms, which, along with the BNA Act, makes up the bulk of our written constitution. Though implied constitutional rights existed before the Charter, it explicitly set out for the first time Canada’s guaranteed constitutional rights and freedoms.[1] This was a major shift from the BNA Act’s approach, which was silent on individual rights.[2]

Each day this week we’ll look at some individual rights and freedoms. Today, we begin the freedom that Chief Justice McLachlin described as “the indispensable condition of nearly every other freedom”,[3] section 2(b), the freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication (such as online social media).

Courts have consistently characterized freedom of expression as essential in a free and democratic society.[4] The provision is also worded broadly to protect any activity intended to convey meaning.  Anything from a political satire to parking your car in a particular spot can be an activity that conveys meaning and is protected under s. 2(b).

Where did this freedom come from you ask? In 1938 the Supreme Court of Canada established that “the right of public discussion… existed at the time of the enactment of The British North America Act.”[5] Even before the charter guaranteed freedom of expression, the BNA Act’s declaration that it was a Constitution similar in principle to that of the United Kingdom implicitly protected freedom of expression.

Freedom of expression is not usually controversial in and of itself and individuals rarely need protection when their views are widely held in society. It is when expression becomes a nuisance in the street or radically offensive to others that citizens pressure governments to stifle unpopular perspectives. The question then becomes, what expression can the state reasonably limit under s. 1?

The Supreme Court has determined that violent expression and threats of violence are not protected under s. 2 (b).[6] The line becomes harder to draw when free expression may put other fundamental values at risk. Certain expressions may incite violence, undermine fundamental governmental institutions, or undercut racial and social harmony.[7]  While Canada does not protect certain forms of hate speech, other countries like the United States have taken a different approach.

In R v Keegstra, the Supreme Court grappled with the limits of protecting hate speech.[8] James Keegstra was a high school teacher in Alberta who expressed hateful anti-Semitic comments in his classroom. During classes, he describes Jews as "sadistic", "money-loving" "child killers" who had "created the Holocaust to gain sympathy." He was prosecuted under s. 319(2) of the Criminal Code of Canada, which prohibits publicly and willfully promoting hatred.

The Supreme Court of Canada determined that even though the legislation infringed Mr. Keegstra’s freedom of expression, it was a reasonable and justifiable limitation in a free and democratic society in order to protect target groups from hate propaganda.

In contrast the United States has traditionally protected hate speech beyond Canada’s reasonable limit.

In a recent US case, Snyder v. Phelps, the United States supreme court upheld hate speech protection for members of the Westboro Baptist Church.[9] Members of the church regularly picketed military funerals to communicate its belief that God hates the United States for tolerating homosexuality, particularly in America’s military. In this case, they picketed the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty.

Ultimately the court concluded “Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.”

What are your thoughts on Canada’s limitation of expression compared with that of the US? Leave us a comment below!

Respectfully submitted,

The Dominion

 

*Special thanks to Professor Eric Adams and the Centre for Constitutional Studies for the informative recent Downtown Charter Series presentation on s. 2(b): What Expression does the Charter Protect?

 

[1] Kent Roach & David Schneiderman, “Freedom of Expression in Canada” (2013) 61 SCLR (2d) 429 at 431-32.

[2] Ibid at 431.

[3] R v Sharpe,  [2001] 1 SCR 45, 194 DLR (4th) 1 at para 23.

[4] Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326 at 1336.

[5] Reference Re Alberta Statutes - The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurate News and Information Act, [1938] SCR 100.

[6] R v Khawaja, 2012 SCC 69, [2012] 3 SCR 555.

[7] Ibid. 

[8] [1990] 3 SCR 697, [1991] 2 WWR 1.

[9] 562 US 443 (2011), 131 S Ct 1207.

Convenient Conventions: Underlying Rules of Constitutional Interpretation

Dearest Reader,

The BNA Act is comprised  of “black-letter law” (the actual words on the page that prescribe the law) and unwritten principles or customs that supplement the black-letter law.¹ Today’s post reviews the unwritten constitutional conventions that are not technically laws but are mandatory.² These conventions assist the courts in applying the Living Tree Doctrine.

Courts use conventions to interpret laws in keeping with judicial history and the rule of law.³ With the except of Quebec’s civil system, Canada’s common law system is based on the United Kingdom’s, where current judicial decisions look to precedent cases to determine the appropriate application of the law. Commonly used principles of statutory interpretation guide judges to interpret legislation in similar manners as their colleagues and predecessors. This allows the justice system to be somewhat predictable.

Conventions are unwritten principles that guide courts in deciding how to best approach a constitutional question. They are considered part of the subtext of the constitution, similar to the Preamble of any legislation. Neither are actual laws, but give courts context to respond to constitutional questions. Conventions form when a typical custom becomes hardened into a formal practice.⁴ Political conversation, negotiation, and past governmental practice often shape conventions.

Legislation is often written in broad terms to allow courts some flexibility in applying laws.Canada’s constitutional law tends to be written in “broad, vague language that rarely speaks definitively to the cases that come before the courts.⁵ Conventions can assist courts in narrowing a question that arises from a broad law. Alternately, legislation can be written more specifically to ensure a narrow interpretation and application. In such a case, conventions provide  courts with the ability to interpret a law with more flexibility, if necessary.

Many of the BNA Act provisions work in harmony to demonstrate underlying conventions. Early conventions guided the constitution and they continue to guide constitutional interpretation. Here are some important examples:

Constitutional Continuity: the idea that we maintain many of the same constitutional practices that the government of Canada was founded upon, as a former colony of Britain.

• Preamble: “a Constitution similar in Principle to that of the United Kingdom”⁶
• S. 9: the authority of and over Canada continues and is vested in the Queen
• S. 11: establishment of the Queen’s Privy Council, similar to that of the UK
• S. 12: English law continues until it is abolished by Canadian law
• S. 55: the Queen must give approval to all Orders in Council (a.k.a. laws)

Federalism: provinces have authority over some activities (s. 92) but the federal government reserves residual power (s. 91).

• Preamble: respects the provinces’ authority because the four provinces desired to unite to create the federal government
• S. 22: respects regional interests in the federal government senate appointments
• Ss. 91 & 92: enumerated powers of federal and provincial governments
• S. 93: gives the provinces large power over education
• S. 94: assumes that the common law provinces would want to pass uniform laws while Quebec maintains its civil law system
• S. 95: provinces cannot enact laws relating to agriculture and immigration that are repugnant to any federal act

Democracy: the Constitution aims for a free and fair society led by a government responsible to its citizens

• Preamble: “responsible government” requires a majority of the House of Commons to pass laws
• S. 36: a clear majority (50% + 1 vote) rules in the Senate
• S. 37: representation of the Members of Parliament is based on population
• S. 40: regional distribution of electoral districts
• S. 50: each session of parliament can sit for no longer than 5 years
• S. 53: bills relating to appropriation of funds and tax impositions must originate in the House of Commons (not the unelected Senate)

Rights protected by the Constitution

• S. 92(13): property and civil rights
• S. 93(2) minority religious education rights
• S. 133: language rights of both official languages

In Re: Resolution to Amend the Constitution, the Supreme Court of Canada officially determined that conventions are appropriate principles to consider when deciding a question of constitutional law.⁷ The Court considered whether the federal government can amend the Constitution without provincial approval. The federal government could not unilaterally amend the Constitution due to an underlying constitutional convention of “substantial” provincial concurrence that the federal had established in political negotiations.⁸ To determine “substantial” provincial concurrence, the Court relied on past government decisions that required “substantial provincial support” as well as international examples from other Commonwealth countries that did not require unanimity from its provinces.⁹ Ultimately, the Court determined “that it could properly recognize conventional rules … notwithstanding their political aspects”.¹⁰

Importantly, the Court noted that although conventions are appropriate to help determine questions of law and interpretation of constitutional questions, they cannot be enforced by the court in the same way courts can enforce laws.¹¹ Some conventions are in direct conflict with black-letter laws. For example, the BNA Act required the Governor General to give assent to every Order in Council passed by Parliament but convention and political custom limits the Governor General’s power.¹²

 The Patriation Reference case is one of the major Supreme Court decisions that ruled on the use of conventions in constitutional law. There are many more (constitutional law demi-god Peter Hogg reviewed about 65 in 1997¹³). Tomorrow we’ll review a few of the heavy-hitters.

With our most sincere regards,

The Dominion

 

1 Elise Hurtubise-Loranger, “Constitutional Conventions”, Topical Information for Parliamentarians (Library of Parliament, 11 Jul 2006), online: <www.lop.parl.gc.ca/content/lop/TeachersInstitute/ConstitutionalConventions.pdf>.

2 However, “it is generally accepted that the penalty for breaching a constitutional convention is political, not legal” Ibid at 1.

3 Re: Resolution to amend the Constitution, [1981] 1 SCR 753, 1 CRR 59 [Patriation Reference].

4 Ibid at 883.

5 Peter Hogg & Allison Bushnell, “The Charter Dialogue between courts and Legislatures (Or Perhaps the Charter Isn’t Such a Bad Thing after All)”, Osgoode Hall Law Journal 35.1 (1997): 75-124, online: <http://digitalcommons.osgoode.yorku.ca/ohlj/vol35/iss1/2> at 77.

6 Constitution Act, 1867, Preamble at para 1.

7 Ibid.

8 Ibid at 902; Hurtubise-Loranger, supra note 1 at 1.

9 Ibid at 902.

10 Hurtubise-Loranger, supra note 1 at 1.

11 Ibid.

12 Ibid at 2.

13 Hogg, supra note 5.