Blog

An Odd Coincidence, Some Irony, And A Bit Of Canadian Legal History

This is not quite an Oxford Story but there is at least one Oxford connection.

Once upon a time, in central North York, Ontario, Canada, when North York (despite Mel Lastman's pretensions) was really only a suburb of the City of Toronto - much like the boroughs of New York, NY are only suburbs of Manhattan - before North York amalgamated with Toronto and other suburbs of the City of Toronto, there was a small community of houses, apartment buildings and a small public school in an area bounded by Highway 401 to the south, railroad tracks to the west, and major streets on the east and north.

The area that is now the massive, upscale, Yorkdale Plaza is southeast of the community, on the other side of the 401.

The Forgotten Other Cartier: a Man who Loved the Sound of his own Voice

Sir George-Étienne Cartier, son of Jacques Cartier III, grandson of Jacques Cartier II, and great-grandson of Jacques Cartier I; no relation to explorer Jacques Cartier.[1]

Montreal lawyer and politician George-Étienne Cartier was born 350 years after Jacques Cartier, the St. Lawrence River navigator and French settler. Before moving to Montreal, Sir Cartier grew up in Saint-Antoine-sur-Richelieu, a small town near Montreal where his family had lived for three generations.

As an adult, he enjoyed Montreal’s elite social scene and apparently loved the sound of his own voice. In fact, he once spoke for 13 hours in Parliament.[2] At both English and French social events, he would entertain guests by singing songs he wrote himself.

Although Sir John A. Macdonald is often hailed as the architect of Canada, Sir Cartier may have been the stronger force driving Confederation.[3] Even Macdonald is reported to have stated that Cartier, his co-premier of the Province of Canada, was the true Father of Confederation.[4]

Political and Legal Career

Cartier articled as a law student with MLA Edouard Rodier, member of the Patriote (rebel) Party, but delved into politics even before he was admitted to the Bar of Lower Canada in 1835. He worked to elect to legislature Patriote Party members Louis-Joseph Papineau and Robert Nelson; later joining them in the 1837-1839 Papineau Rebellion.[5] Cartier was charged with treason for his part in the failed rebellion and took exile in the United States. He returned after both swearing his allegiance to the Queen and when the colonial governor annulled the charges.[6] Unfortunately, he remained “a politically incorrect personage” and never shared the same level of praise in Quebec as does Jacques Cartier or in Canada as does Macdonald.[7]

Cartier nevertheless had a remarkable political career. He was elected in 1848 to the Legislative Assembly and strongly represented his constituents and French Canada.[8] He rewrote property laws, created a modern civil code, set up primary schools for Catholics and Protestants, oversaw the Hudson’s Bay Company negotiations to purchase Rupert’s Land and the North-Western Territory, and helped negotiate the creation of the province of Manitoba.[9]

Conflict of Interest

Sir John A., even with his reputation for imbibement, was perhaps a more suitable choice to embody the legacy as Canada’s Father of Confederation. Cartier further fell from favour in 1873 when he was implicated in the Pacific Scandal, a “cash-for-contracts” scheme where he accepted political donations from his railway promoter client.[10] Cartier acted as legal counsel for the Grand Trunk Railway and prevented US railways from taking over the Canadian Pacific Railway project. However, his political campaign was largely funded by this client, which received the government railway contract.[11] This ended his political career. He died later that year of a kidney illness.[12]

Confederation

Despite, or perhaps due to, Cartier’s commitment to French-Canadian nationality, Confederation was a high priority for him.[13] Confederation was a means to unite Upper and Lower Canada without assimilating the French settlers into English culture; to unite the British colonies in defence against the US; and to develop the intercolonial and pacific railways without US intervention.[14] Cartier took part in the London, Quebec, and Charlottetown Conferences to convince the Queen and other lawmakers that Confederation was the right decision. In 1867, as Macdonald became the first Prime Minister of Canada, Cartier became the first Minister of Militia and Defence and occasionally stood in for Prime Minister Macdonald when necessary.[15]

Clearly, Cartier had a voice that could not be silenced—while he lived. Whether he was singing to entertain his friends, rallying votes, or negotiating political instruments that would shape the political boundaries of the country, people listened to him. Unfortunately, his two political transgressions likely downgraded his legacy in the history books.

This lesser-known Father of Confederation wraps up this week’s posts. Next week, we’ll tell you about the Ice on Whyte festival that celebrates Canada 150. In a few more weeks, we’ll write about the Women of Confederation, including Sir Cartier’s long-time lover, Luce Cuvillier. Stay tuned!

[1] “Sir George-Étienne Cartier National Historic Site of Canada,” National Historic Sites (4 March 2014), online: Parks Canada <www.pc.gc.ca/eng/lhn-nhs/qc/etiennecartier/natcul/natcul1.aspx> [Parks Canada].

[2] “Fathers of Confederation: George-[É]tienne Cartier”, Canada: A Peoples History, CBC (2001), online: CBC <http://www.cbc.ca/history/EPCONTENTSE1EP8CH3PA2LE.html> [CBC].

[3] Ibid; Alastair Sweeny, “Confederation’s True Father? George-Étienne Cartier” (3 January 2014), online: The Globe and Mail <www.theglobeandmail.com/opinion/confederations-true-father-george-etienne-cartier/article16177890/>.

[4] Sweeny, ibid.

[5] Parks Canada, supra note 1.

[6] CBC, supra note 2.

[7] Sweeny, supra note 3. If you ever go to Montreal, you must visit Place Jacques-Cartier: www.vieux.montreal.qc.ca/tour/etape6/eng/6fena.htm. It’s beautiful.

[8] CBC, supra note 2.

[9] CBC, supra note 2; People: Sir George-Étienne Cartier, Library and Archives Canada (2 May 2005), online: Government of Canada <https://www.collectionscanada.gc.ca/confederation/023001-4000.12-e.html> [Library and Archives].

[10] Library and Archives, ibid.

[11] Sweeny, supra note 3.

[12] “Confederation: George-Étienne Cartier,” A Country by Consent, online: Canada History Project <www.canadahistoryproject.ca/1867/1867-07-ge-cartier.html>.

[13] Parks Canada, supra note 1.

[14] Sweeny, supra note 3.

[15] Parks Canada, supra note 1.

Purposive Dancing With The Stars - A Coda

This piece was written on Friday 13 January 2017.

It's just a superstition that the 13th of a month is an unlucky day when if falls on a Friday, right? Well, maybe so. But that doesn't mean we can't can't give the superstition some content, right? And see who is made lucky or unlucky as a result?

After the appropriate amount of preparatory web searching,  one or more students from the U of A Law Faculty, on a warm enough day this month or next, could make the journey from their faculty to the Alberta Legislative Assembly library, or wherever else you have determined you should look, and get copies, in some media, of whatever documents exist that are contemporaneous with the drafting and enactment of  the mid 1990s original of the Freedom of Information and Protection of Privacy Act, RSA 200, c F-25  and tell us what you've found.

 

The Dominion, Back at it Again!

Hello Readers! Here at the Dominion we are happy to be back writing to you about important constitutional topics relating to the British North America Act. After a brief hiatus from the blogging world during our Christmas Break we are back better than ever here in 2017! Thank you for all your support and readership in 2016; we hope to continue to provide you with some insight into important and pressing constitutional issues this semester.

Our team has changed a bit since we last posted. Deirdre Fleming has left for exchange in New Zealand (lucky her!), and Allison Numerow has joined the project in her place. We wish Deirdre all the best on her exchange and we are sure she is having a blast across the pond! Allison will be providing you with a brief introduction later in the week so that you can learn a bit more about her.

Enough about us, now back to the project itself. Did you know that the year 2017 marks Canada’s 150th birthday? Crazy! In honour of this historic year, our law and social media project will be focussing the content exclusively on topics relating to the British North America Act and events celebrating Canada’s sesquicentennial. If you are interested in Canada 150 events on the University of Alberta campus click here! The link will be continuously updated as more events are finalized. We will also be posting links to some Faculty of Law events relating to important constitutional questions! This Thursday the Centre for Constitutional Studies is presenting a discussion entitled “I wanna talk to my lawyer” regarding the right to seek counsel under section 10(b) of the Charter. If you have ever wanted to learn more about the right to counsel from the faculty’s own Professor Steven Penney, come check it out. Click here if you are interested in attending, the location, date and time are listed.

Although majority of our content this semester will focus on Canadian topics, the United States presidential inauguration this upcoming Friday is too important to ignore. With Trump’s inauguration approaching, issues involving freedom of speech are a popular topic within mainstream and social media. Should a president elect be able to say whatever he desires on his own personal social media? Do any regulations exist that prevent such a prominent figure from spewing out hate-filled comments? Is there a difference between regulating mainstream media and personal social media? All of these questions are currently contentious and pressing. To address the controversy surrounding the future United States president, this week we will be focussing on freedom of speech and how the Canadian Charter regulates speech. Check back this week to see what barriers to free speech exist in Canadian society, and whether these barriers would change how Trump is able to present himself in the media.

Purposive Dancing With The Stars - Part 7

     Now I'd like to turn to another issue: that of judicial hubris. You did, after all, raise this in penultimate paragraph of your critique, although you called it "professional hubris".

Purposive Dancing With The Stars - Part 6

       Is there any evidence that contemporaneous with the drafting documents exist. Yes. I’ll insert a few screen captures of search results and an excerpt from one document. The captures at the least provide one a road map of where to start looking. It took me less than an hour to get this information, for what that’s worth. (If an old dinosaur like me is able to find information that easily, imagine what those of you who grew up wired should be able to do?)

[A few of the images - the Hansard listings & the DuckDuckGo search screens need to be replaced with larger versions for easy viewing but, if you enlarge the screen enough, you'll get the point. Something seems to exist.]

 

The Thrill Is Gone: Sardonicism ‘R Us, Part Deux

Or, "what's wrong with the facts of this case, not the result".

You'll find Part One on Slaw.

In this case, the sardonicism will be a bit wryer. Or a bit more ferocious.

As I told a friend, I've decided to adopt his "it is permissible to care (much) less" attitude starting on January 1, 2017. That doesn't mean I'll always live up to the letter of that attitude.

The substance of this note was written late last year. I decided to wait until this year to finish it.

Purposive Dancing With The Stars - Part 5

This part continues the Purposive Dancing article from where it ended in Part 4. When the part stopped, I'd finished providing the background for a scene that takes place in an imaginary version of Alberta, which I called AlberDum. (After all, folks, if Norway, that's right, Norway, could find a way to save a whole chunk of its North Sea oil revenue for rainy day, how smart does one have to be to save even a small but good chunk of Alberta's? Even a good car salesman could figure that out, let alone an Ontario self-exile from the Leaside and Rexdale areas of Toronto (even if he wasn't ever formally a part of the Alberta gov't.) I realize that Alberta's oil wasn't North Sea oil, so maybe it wasn't quite as clean as the European stuff - maybe had a whiff of sulphur or two; if not that then not quite as pure as the European stuff so it required more processing before becoming "saleable" -  but the stream of revenue Alberta got during at least two oil booms was just as "clean".  

 

Purposive Dancing With The Stars - Part 4

This part continues the "article" that started in PDWTS - Part 1.

Purposive Dancing With The Stars - Part 3

Cam

Thank you very much for your comments. I think that, at least here, your dispute with the Court comes down to this. You say that the was no room for any meaning other than that which you say was the clear meaning. The Court didn't agree. You say, then, that the purposive dancing dance is not appropriate in this case because, in the broad sense, what it does to the Rule of Law.  I agree, if you are right about how the statute had to be interpreted.

Purposive Dancing With The Stars - Part 2

Hi Cam,

In the old days, way back in the last millennium, when online access was very expensive and modems were very slow, people used what were called OLRs - Off Line Readers - for discussions on bulletin boards. The beauty of the OLR was that it linked all messages in a conversation chronologically to make reading easier: like a good email program does but with a party line capacity. Every person's contribution to the same converstion was included in the linked chain in the appropriate chronological slot. That meant the contributions of multiple people were included in the same thread one saw on one's screen. You didn't have to cut and paste to link, or use multiple screens. 

Purposive Dancing With The Stars - Part 1

Dear Readers:

This post is the first of a series of posts that, together make up an article that Professor Hutchinson and I intend to use to discuss various issues raised in the article and anything else that comes to mind as we discuss those issues.

There will be a series of daily posts until the article is completely posted. We are aiming for a school week's worth.

 

 

Purposive Dancing With The Stars

A Response to Professor Hutchinson and on the process of judicial judgment writing, the contents of some reasons for judgment, and advocacy in the courts ​

Preface

I had intended this to be a brief(ish) - by real standards, not mine - reply to Professor Hutchinson's very succinct, very accurate, very true critique, on SLAW of the SCC's recent decision in Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53. see Cameron Hutchinson, The Supreme Court’s Doctrine of No Construction in Alberta v. University of Calgary.* However, as is often (some would say, with some merit too often) the case with me, the piece "grow'd".

*See <http://www.slaw.ca/2016/12/21/the-supreme-courts-doctrine-of-no-construction-in-alberta-v-university-of-calgary/>

So, I've made this a stand-alone posting, here, albeit in the form of a letter to Professor Hutchinson. It is posted with his permission in the sense that he has read it and told he has no objection to me posting the contents in this form. I have mentioned  this because an acquaintance recently reminded me of my tendency towards the sardonic. That's intended in this article. I've also intended the flippancy or wryness which, in some ways, is a milder form of sardonicism not amounting to the belittling mockery which sardonicism sometimes apes.

At least for me.

So, please understand that nothing in this document is in any sense intend to mock Professor Hutchinson. He is not my target. If you want to read what I have written otherwise, that’s your right. But you will be wrong to do so, even more now that I’ve told you specifically not to do that.

In any event, as I’ve indicated, Professor Cameron read it before I released it and promised that, should I ever set foot again in Alberta, he'd do nothing worse than subject me to an evening of his impressions of Ezra Klein speeches as might be delivered by Professor Lewis Klar, channeling the spirit of the late Jack Layton to an audience including both Professors Yahya and Klar and former professor now Mr. Justice Brown of the Supreme Court of Canada.

There could be easier punishments.

Existential Questions and Internet Search Engines: Why are the results of this search different?

praying mantis emoji

On different search engine image pages - I tried Google and DuckDuckGo

But more importantly what is the relationship between some of the image hits and the search terms?

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.

 

Being Christy Clark

Or, rather, the "designated crime" of "Being Christy Clark", unlike, say, the state of "Being John Malkovich" which was a very good movie.  On the other hand, the "crime" of "Being Christy Clark" should, at best, be an issue of morals, manners, and, dare we say, good breeding, at least in the better parts of British Columbia. However, it may be more than that. It seems to be a state which has the capacity? potential? to be defined as a crime to which the British Columbia Profits of Criminal Notoriety Act, SBC 2016, c 24, in force 19 May 2016 applies. (BC Dippers, somewhere, who get a note of this might be saying to themselves, if not based on this legislation, yet: so? this is new? we told you so!)

With that in mind, I offer what starts after the break for the holiday season. (No, I haven't yet started celebrating.) It's somewhat longish (about 7000 words) and filled with my seeming asides and tangents but I think it'll light up some spirits. There's even poetry (loosely).

 

 

 

Writing for CanLII Connects

Consider this a clarion call for those of you who enjoy writing case comments, and are prepared to take the time to research and write a worthwhile case comment for CanLII Connects, to at least consider doing a few a year, even though it's probable that there will be no present or future professional value to you other than whatever pleasure you derive from a job well done.

A Canadian Scholar in Oxford's Heart

This first part of this posting is a story that Bart Simpson would say is exactly what I should have expected and one for which both he and Homer would both award me D'OHs for expecting something else. The rest? What any good bibliophile (Oxonphile?) would do.

Supreme Court of Canada Appointments

Dear Sir or Madam,

Yesterday we  outlined the structure of Canada’s court system. Today we move on to Canada’s highest judicial authority, the Supreme Court of Canada (SCC).

Sections 4-6 of the federal Supreme Court Act specify the composition of the SCC. The Governor in Council (the governor general, on advice from the Prime Minister’s Cabinet) appoints an individual who has been a judge of a provincial superior court—the Court of Queen’s Bench of Alberta or Supreme Court of British Columbia for example—or who has been a lawyer for at least ten years standing at the bar of any province.[1] Three of the SCC judges must be from Quebec, which  is likely to ensure that the SCC bench is sufficiently experienced with Quebec’s civil law system. It is also customary to include judges from across Canada’s geographical regions: three from Ontario, one from British Columbia, one from the Prairie provinces, and one from the Maritimes.

In August this year, Prime Minister (PM) Justin Trudeau announced a new nomination process for selecting SCC judges in an attempt to ensure that the process is “transparent, inclusive, and accountable.”[2] Before the new selection process, the PM appointed SCC judges through a simpler but arguably less transparent process. Before August 2016, the Prime Minister’s Office could nominate any superior court judge or lawyer in accordance with the SCA and the Constitution Acts, 1867-1982.[3] Customarily, this included conferring with provincial Attorneys General and with the Chief Justice of the SCC. Usually, this process resulted in a bench comprised of Justices with similar political and social values to the sitting government’s views. The nominees will probably continue to be politically aligned with sitting governments, but PM Trudeau’s intention is to demonstrate to the public that the nominees are selected for more than their political views.

The new Independent Advisory Board for Supreme Court of Canada Judicial Appointments, chaired by Rt. Hon. Kim Campbell, convened to “provide non-binding, merit-based recommendations” to the PM.[4] By August 24, the Board had received 31 applications. It provided a short-list of 5 candidates to the PM, who nominated Hon. Malcolm Rowe. The Minister of Justice and Attorney General of Canada, Hon. Jody Wilson-Raybould, explained that the PM chose Rowe J. from the short-list “because of his legal and judicial acumen, public service background, ability to work in French, and ‘depth of understanding’ of Canada’s ‘diversity.’”[5] It also helped that Rowe J. fills retiring Justice Thomas Cromwell’s Atlantic region seat. As a result of this more transparent process, the public can review Justice Rowe’s application questionnaire here.

On October 25, 24 parliamentarians convened in Ottawa in a new question-and-answer session to determine Justice Rowe’s proficiency in French, his attention to diversity in Canada, and his commitment to access to justice. Inquirers included the leaders of the NDP, Green Party, and Bloc Quebecois, senators (including Hon. Murray Sinclair, first Manitoba Indigenous judge and former chair of the Indian Residential Schools Truth and Reconciliation Commission), and other members of the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs. You can view the question-and-answer session here.

Section 41 of the Constitution provides the standard procedure to amend the “composition of the Supreme Court of Canada”.[6] It is the same as amending the office of the Queen or the Governor General and Lieutenants General of the provinces. In 2014, former PM Harper nominated Justice Marc Nadon from the Federal Court of Appeal, the Governor General appointed him, and he was sworn in according to the SCA.

Unfortunately, despite Nadon J.’s experience, expertise, and suitability to sit as puisne justice of the SCC, he was ineligible to be appointed.[7] The SCC decided with a 6-1 majority in Reference re Supreme Court Act, ss. 5 and 6 that the correct interpretation of ss. 5 and 6 of the SCA excludes current judges of the Federal Court of Appeal from sitting on the SCC.[8]

The Supreme Court Act does not state that a Military Court judge, a Tax Court judge, Federal Court judge, or a Federal Court of Appeal judge can be appointed to the SCC. Other sections in the act do refer to judges of the Tax Court, Federal Court, and Federal Court of Appeal,[9] so it is unlikely to be an error in drafting.

The new process for selecting SCC judges does not change the ultimate appointment process, so it is not necessary to amend the SCA or the Constitution. It merely suggests appropriate candidates to the PM and, hopefully, would prevent an incident like that in 2014 because there are more experts reviewing the candidates.

Humble regards,

The Dominion

 

[1] RSC, 1985, c S-26 [SCA].

[2] Justin Trudeau, Prime Minister of Canada, “New process for judicial appointments to the Supreme Court of Canada”, News (Ottawa: 2 August 2016), online: <pm.gc.ca/eng/news/2016/08/02/new-process-judicial-appointments-supreme-court-canada>.

[3] 30 & 31 Victoria, c 3 (UK), s 41(d) [Constitution].

[4] “The Independent Advisory Board for Supreme Court of Canada Judicial Appointments”, Office of the Commissioner for Federal Judicial Affairs Canada (2 August 2016), online: <www.fja-cmf.gc.ca/scc-csc/index-eng.html>.

[5] Tonda Maccharles, “Supreme court nominee’s sex assault ruling no concern for Kim Campbell”, The Toronto Star, online: <https://www.thestar.com/news/canada/2016/10/24/supreme-court-nominees-sex-assault-ruling-no-concern-for-kim-campbell.html>.

[6] Constitution, supra note 3.

[7] Justice Thomas Cromwell, as quoted by Laura Stone and Sean Fine, “Nadon appointment rejected on technicality, Justice Cromwell says”, The Globe and Mail (Ottawa: 14 September 2014), online: <www.theglobeandmail.com/news/politics/nadon-appointment-rejected-on-technicality-justice-cromwell-says/article31891826/>. For more information see <www.cbc.ca/news/politics/marc-nadon-s-failed-journey-to-the-supreme-court-1.2636403>.

[8] 2014 SCC 21, [2014] 1 SCR 433 at para 4.

[9] See, for example, SCA, s 30.

We Will Remember Them

Dear Sir or Madam,

We have nothing to say today but "Thank you".

If you would like to join us in expressing our gratitude, here is a list of Remembrance Day ceremonies in Edmonton today.  It is worth noting that one of the largest ceremonies in the province takes place on our very own campus.  Please be at the Butterdome and seated by 10:00am if you would like to attend.

Lest We Forget,

The Dominion