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5 Years After TRC: Is Canada Making the Grade?

Tansi, 

December 2020 marked 5 years since the TRC final report was released with 94 Calls to Action for truth and reconciliation with Indigenous people.  To commemorate this juncture, Team ReconciliAction set out to evaluate progress on each of the Calls to Action in the 5 years since their release. 

It has been quite a year for our team.  In addition to our ongoing report card, we attended the Indigenous Bar Association annual conference, the ILSA speaker series, the Kawaskimhon Moot, the Barton trial, Indigenous language engagement sessions, various faculty talks, we won a Clawbie and we attended protests, marches and vigils.  And we shared all of it with you, our dear audience.  We appreciate all of the engagement we've had this year on the blog and on our social media accounts, and we want to thank everyone who joined the conversation on reconciliation this year.  

Today, we release our final report card, and the culmination of our work over the 2020/21 academic year.  To those who have followed the progress, you have probably figured out that the report card on 5 year progress is bleak.  The few bright spots in reconciliation progress have come at the organizational level, where institutions could quickly work to address the Calls specific to them.  There has been little to no progress on more systemic change that requires governmental action, and in many cases we have actually seen a backslide.  For example, Prime Minister Justin Trudeau has ceased making his emphatic statements that Canada's relationship with Indigenous people is the most important relationship, and here in Alberta we are looking into curriculum changes that exclude education on the legacy of residential schools.  

The takeaway from our report card is that Canada has much work to do, and likely needs to make significant increases to funding and efforts to correct some of these systemic issues in housing, healthcare, the justice system, child welfare and anti-racism.  So what comes next?  Will Canada stop fighting against Indigenous children?  Will Justice Minister David Lametti acknowledge the importance of Indigenous language speakers in this country and allow the bilingual requirement for the SCC to include languages other than colonial ones?  Will communities get clean drinking water?  Will provincial governments denounce racism in education and healthcare?  I mean, we hope so and each of us plans to continue the discussion beyond this blog.

We aren't saying goodbye yet, though.  Stay tuned next week as we get some final thoughts off our chest, and the week after for our individual reflections on the year.  

And now, for those of you who have not already scrolled ahead - The final grade:

Until Next Time,

ReconciliAction YEG

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Re: TRC Call to Action #84 – Indigenous Voices in Radio and Reconciliation

Tansi Nîtôtemtik,

The Truth and Reconciliation Commission of Canada’s (TRC) Call to Action #84 calls on the government to increase and restore funding to the media to provide a voice for positive change through respectful and meaningful media coverage. Call to Action #84 states:

We call upon the federal government to restore and increase funding to the CBC/Radio-Canada, to enable Canada’s national public broadcaster to support reconciliation, and be properly reflective of the diverse cultures, languages, and perspectives of Aboriginal peoples, including, but not limited to:

    i. Increasing Aboriginal programming, including Aboriginal-language speakers.

  ii. Increasing equitable access for Aboriginal peoples to jobs, leadership positions, and professional development opportunities within the organization.

  iii. Continuing to provide dedicated news coverage and online public information resources on issues of concern to       Aboriginal peoples and all Canadians, including the history and legacy of residential schools and the reconciliation process. ^[1]

CBC/Radio -Canada is a national public broadcaster and one of Canada’s largest cultural institutions. It plays a vital role by providing access to programs and services across the country. CBC Radio purports to be a leader in reaching Canadians on new platforms and delivering a broad range of services that offer diverse regional and cultural perspectives. Considering CBC Radio’s considerable reach across the nation, it is no surprise that the  TRC felt it should be included in the Calls to Action.^[2]

In Budget 2016, the Government of Canada reinvested $675 million in CBC/Radio Canada over 5 years. This amount was supposed to include initiatives for Indigenous programming and services. To be clear, the amount was not exclusively for Indigenous programming, so the amount allocated for Indigenous media initiatives and services is discretionary. .^[3]

In its 2016-2017 Annual Report, CBCRadioCanada reported that the additional funding from Budget 2016 enabled key Indigenous initiatives such as creating additional Indigenous content (including  its digital portal Espaces autochtones), and hiring local Indigenous staff in Yellowknife for the digitization of decades of audio programming in 8 Indigenous languages: Dene Suline, Inuktitut, Inuvialuktun, Chipewyan, North Slavey, South Slavey, Gwich'in and Eastern Cree.^[4]

To date, CBC is the only broadcaster to offer Indigenous language news and information services across TV, radio and digital platforms in Canada’s North in the 8 languages listed above, reaching over a hundred northern communities. 

CBC claims that its commitment is to reflect and represent Canada’s Indigenous communities and to create programming by and for Indigenous Peoples. CBC North broadcasts 211 hours per week with 125 of those hours on indigenous language and has made considerable efforts to digitized content in collaboration with Indigenous people to provide accessible archives.^[5] In addition, there are great programs such as “Unreserved”^[6] with Rosanna Deerchild which promotes discussion and conversation between Canada’s Indigenous and non-Indigenous people on Radio One, and Lisa Charleyboy’s New Fire^[7] podcast focused on stories of Indigenous youth on CBC Radio.

It is a pleasant change to see the money set out for CBC Radio programming being put to good use, even though the money was not specifically allocated for Indigenous programming.  We look forward to more initiatives that provide access to Indigenous voices on the radio and other associated media forums.

Closer to home, we have seen a new Indigenous radio station, The Raven CIWE 89.3 launched in Edmonton just this month and will join Edmonton-based CFWE FM and Calgary-based CJWE FM as part of the Windspeaker Radio group. There is no government funding for this station; they have basically started from scratch. But are excited to create spaces and utilize the incredible talent they have in their organization.^[8] It would be a stronger act of reconciliation if the government didn’t stop at CBC Radio with funding but also provided funding to Indigenous-based media groups that reflect a grassroots perspective that hit at the heart of Indigenous issues and stories, like The Raven. Yet with the slow pace of government progress on the Calls to Action, we will not hold our breath.

Until Next Time,

Team ReconciliAction YEG

 

[1] Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015 [TRC Report].

[2] Canadian Broadcasting Corporation, “Federal budget 2016 and reinvestment in CBC/Radio-Canada” (Mar 16, 2016) online: NewsWire <https://www.newswire.ca/news-releases/federal-budget-2016-and-reinvestment-in-cbcradio-canada-573134991.html>.

[3] Government of Canada, “Media and Reconciliation” (Sep 5, 2019) online: <https://www.rcaanc-cirnac.gc.ca/eng/1524505692599/1557513408573.>

[4] Ibid.

[5] CBC, “Indigenous Refection and Representation” (August 2018), online: <https://site-cbc.radio-canada.ca/documents/vision/strategy/submission/appendix-e-cbc-radio-canada-indigenous.pdf>.

[6] CBC, “Unreserved” online:< http://www.cbc.ca/radio/unreserved>. 

[7] CBC, “New Fire” online:<http://www.cbc.ca/radio/newfire>

[8] Emily Mertz, “New Indigenous radio station The Raven launches in Edmonton: ‘It was emotional” (1 Feb 2021) online:Globalnews.ca <https://globalnews.ca/news/7613364/indigenous-radio-station-the-raven/> . 

To Boldly Go...

What will Canada be like in another 150 years? Despite deepening darkness in the world around us, I like to be optimistic. I think that Canada, and hopefully our world, will be a better, fairer place in the centuries to come. Since Confederation, Canada’s laws have increasingly reflected our social and political values toward equality and fairness.

However, I doubt the text of our Constitution will change much. The amending formula found in section 42 of the Constitution Act, 1982 requires too much buy-in from too many different places with different agendas. Any changes to the text of the Constitution require votes in favour in seven of the ten provinces, which must exceed half the population of the country.¹ We will be freer and fairer, but regional squabbles will always exist. Barring a war which redraws maps and forces us to rewrite the entire thing, the text itself probably won’t have changed much. It’s possible Quebec will not even have ratified it..

Luckily, the Supreme Court of Canada (SCC) has always shown a willingness to adopt a living tree doctrine, allowing our society to evolve with changing Canadian values. It was the SCC that insisted on protecting people from discrimination based on sexual orientation.² It was the SCC that established the right to assisted suicide.³ It was the SCC that established that our outdated sex work laws were dangerous.⁴ The SCC split 6-3 over whether something must have identifiable harm to be criminalized and, as the challenger wished to establish, whether prohibition of marijuana was unconstitutional.⁵

As the SCC and future progressive parliaments will push our society forward in some ways, new technologies will push it forward in others. Automation is the way of the future (though people touting new AI as a replacement for lawyers clearly do not understand the profession), and Canada must adapt accordingly.

One adaptation I see to deal with those issues is the adoption of a Universal Basic Income (UBI) scheme. UBI is the idea of making sure that everyone has a basic standard of living through no-strings-attached cash payments. The largest social change in centuries will have to occur, and will require Canadians to stop stigmatizing a lack of gainful employment. We need to not look down on people who don’t “work”, especially those who choose not to in order to pursue art, education, and invention.

The future is bright. Our courts are willing to reinterpret our constitution to reflect our changing society. Our country is evolving at an incredibly rapid rate. Happy 150, Canada. I hope I live long enough to see a fraction of how great things will be when you hit 300.

¹Constitution Act, 1982, s 42, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

²Vriend v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385.

³Carter v Canada (Attorney General), 2016 SCC 4, [2016] 1 SCR 13.

⁴Bedford v Canada (Attorney General), 2013 SCC 72, [2013] 3 SCR 1101.

⁵R v Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571.

Will We All Be Alive for #Canada300?

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

⁶Ibid.

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

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

We Will Wait Our Turn, Just Not For Too Long

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

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

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

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

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

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

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

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

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

 

 

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

² Ibid.

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

Zombie Law Apocalypse

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

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

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

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

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

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

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

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

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

List of Undead Offenders:

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

 

[1] RSC 1985, c-46.

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

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

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

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

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

[6] Harris, ibid.

[3] Ha, supra note 2.

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

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

[10] Ha, supra note 3.

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

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

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

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

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

[16] Ha, supra note 3.

[17] Ibid.

Entering the Dragon's Den

 

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

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

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

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

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

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

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

 

 

 

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

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

³ Ibid.

⁴ Ibid.

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

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

⁷ Ibid.

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

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

Interview with Provincial Court's Judge Judith Shriar

Today we expand on our Access-to-Justice themed week, with a discussion on Alberta’s court system. Today’s post emphasizes the role that the courts play in helping litigants navigate the legal process once they’ve been introduced to the system. When courts give better access to self-represented litigants, more people can afford to pursue a claim or defend a claim or charge before a judge.

We recently had the opportunity to interview the Honourable Judge Judith Shriar of the Provincial Court of Alberta. She sits in Calgary, as well as in regional areas near the city, on criminal and some civil matters.

Through her time on the bench, Judge Shriar has heard a variety of charges, litigants, and issues, though she noted that she hears a large number of drinking and driving related charges. Judge Shriar observed that men appear in her courtroom more often than women and she sees more younger defendants than older. She made special note that these demographics do not change drastically from urban to rural, or even reserve centres.

In our justice system, there is currently cause for concern for self-represented litigants to represent themselves in court. Judge Shriar noted that courts have implemented programs and resources to help litigants navigate the murky waters of the legal system. The Provincial Court has “done a great job of making tools available online for litigants to access,” Shriar said.  

She further recognized that these resources have allowed self-represented litigants to become better equipped to handle their cases in court.

“I do think that people often do a good job on their own. Especially when people are unrepresented you see that people have really thought through their claim… they’re organized.”

However, there are always those who “slip through the cracks.” Sometimes a self-represented litigant faces an uphill battle during a dispute against a litigant with an experienced lawyer. When asked whether the judiciary has a responsibility to ensure that litigants are on equal playing fields, Judge Shriar confirmed that, though her jurisdiction to intervene is limited, she does what is appropriate within her position as an impartial judge to make litigants aware of the resources available to them, and even to step in when necessary to prevent gross injustices.

Another common area of concern is an increasing strain on limited court resources. Judge Shriar agrees that with respect to both manpower and infrastructure, the scarcity of court resources is an issue. In light of this problem Judge Shriar explained how Calgary’s Provincial Court has implemented programming to combat and mitigate the effects of diminishing resources.

She called Calgary’s Provincial Court a “leader across the province and the country,” when dealing with diminishing resources. For example, to deal with small overburdened rural courtrooms, regional dispositions are sometimes moved to Calgary. Setting aside a day for this purpose has helped to save time and effectively utilize the resources currently in place.

Another example is the Provincial Court's use of technology. For example, the court’s use of CCTV has reduced the need to transport parties and witnesses to courts. This eases the burden on support staff like sheriffs, clerks, and drivers.

When asked about the future of the courts and litigants’ ability to access and navigate them, Judge Shriar is optimistic. Since she was called to the bench, she has noticed many changes that increase both the efficiency of the court system and assist the courts in reaching appropriate verdicts. Specifically, technology and alternative dispute mechanisms have alleviated some of the pressures on the court system, while providing litigants with appropriate tools in which to solve their dispute.

However, more can be done.

We asked Judge Shriar what next steps the courts might take to continue to solve some of the issues individuals face when accessing the justice system. She said that, “the delay issue is critical. There were 15 charges dropped in Edmonton by a crown prosecutor to address these delay issues.”

“The courts do have a role to play in the process of helping to address root causes,” she said, and accordingly, we are likely to see an increase in “therapeutic courts, matrimonial courts, drug courts, and experimental programs.”

These measures will continue to funnel litigants out of the courtrooms while still providing them with the appropriate oversight. Solving disputes before trial, through programs such as mediation or judicial dispute resolution, saves both litigants and the courts time and money.

The Canadian justice system faces obstacles and challenges to provide fair and affordable access to its resources. It is clear at this point that Calgary’s Provincial Court has taken significant steps forward, leading Canada’s courts toward a future with a more accessible and balanced system of litigation and dispute resolution.

It's Dolly the Sheep's Anniversary!

Today, February 22nd, marks the 20th anniversary since Dolly the Sheep was announced to the public. She was the first successfully cloned mammal and lived until the age of 6. Dolly was unique because she was cloned from an adult cell rather than from embryonic cells.¹

She was born in Edinburgh, Scotland, at the Roslin Institute on July 5th, 1996, and yes, she was actually “born” in the traditional sense. DNA from a sheep cell was inserted into an egg and implanted into a sheep. Tests confirmed that Dolly’s DNA is wholly her mother’s DNA, not that of the surrogate mom.

With this announcement came a flood of ethical and legal questions, including: Is cloning allowed? Are the laws surrounding cloning constitutional?

Animal Cloning

Cloning animals in Canada is legal. Starting with Dolly, labs have begun to clone other animals. At McGill University in 2007, researchers cloned Canada’s first pig.² The McGill lab has been contacted by other labs at Canadian universities to clone animals for research.

Though animal cloning is legal, there are restrictions in place on what can be done with the animals. Health Canada created an interim policy in 2003, stating that any food to be sold from cloned animals must first pass a safety assessment.³ Health Canada was concerned that the method of cloning posed safety concerns.       

There are also ethical concerns with cloning animals. In the United States, there are companies that will clone your pet!⁴ You can actually pay a company $50,000 to get a DNA-identical version of your dog.

A 2010 study by Ipsos Reid for Agriculture Canada showed that over half of Canadians found animal cloning unacceptable.⁵ Only 16% thought cloning animals was tolerable.

Human Cloning

Human cloning has been outlawed in Canada for years. Sections 5(1) and 9 of the Assisted Human Reproduction Act prohibits the creation of a human clone or transplanting a human clone into a human being.⁶ Unlike some other countries, a person cannot knowingly create a human clone for any purpose or use in Canada, with some exceptions for research purposes.⁷ Specifically, research on embryos may be permitted if a proper license is obtained, and if the researchers adhere to the proper regulatory oversight.⁸

In comparison, US federal laws permit human cloning for limited purposes.⁹

Is Human Cloning Constitutional?

Professor Barbara Billingsley, from right here at the University of Alberta’s Faculty of Law, has considered the question of whether the cloning prohibitions in the AHRA unjustifiably infringe on Canadians’ section 2(b) right of freedom of expression to create non-reproductive human clones.¹⁰ To find infringement, the act of human cloning must first be determined to be a form of expression.

She notes that although Canadian courts have not yet ruled on whether medical research is a form of expression, there have been comments from the courts that indicate that it would be likely.¹¹ Assuming it does infringe, Billingsley found that the bans in the AHRA likely infringe Canadians’ constitutional rights, in that they infringe the pursuit of truth in the scientific community, and/or ‘human flourishing’.¹²

Billingsley did not conclude whether the right would be justifiably infringed. She stated that policy reasons behind the ban were unclear and the lack of case law on the subject prevents an adequate guide for such an analysis.¹³

In contrast, the US has grappled with cloning within the context of the First Amendment. Specifically, scientists claim that the “right to research” falls within the First Amendment because it “challenges or explores cultural or political norms, which, is an act of rebellion … in the spirit of the First Amendment.”¹⁴ Unlike in Canada, there are no federal laws currently outlawing human cloning.¹⁵

 

¹“1997: Dolly the Sheep is Cloned”, BBC News, online: <news.bbc.co.uk/onthisday/hi/dates/stories/february/22/newsid_4245000/4245877.stm>.

²Michael Bourguignon, “Cloned Pigs a First in Canada”, McGill Reporter (6 December 2007), online: <https://www.mcgill.ca/reporter/40/08/pigs/>.

³www.hc-sc.gc.ca/fn-an/legislation/pol/pol-cloned_animal-clones_animaux-eng.php

⁴see www.myfriendagain.com.

⁵Sarah Schmidt, “Canadians Leery of Cloned Animals”, Canada.com (5 October 2010), online: <www.canada.com/health/Most+Canadians+leery+cloned+animals/3628765/story.html>.

⁶Assisted Human Reproduction Act, SC 2004, c 2.

⁷Health Canada, “Prohibitions Related to Scientific Research and Clinical Applications”, (Ottawa: 9 January 2014), online: <www.hc-sc.gc.ca/dhp-mps/brgtherap/legislation/reprod/research-recherche-eng.php#fnb2-ref>.

⁸UNESCO, National Legislation Concerning Human Reproductive and Therapeutic Cloning (Paris: 2004) at 5, online: <unesdoc.unesco.org/images/0013/001342/134277e.pdf>.

⁹Health Canada, supra note 7.

¹⁰Barbara Billingsley, “A Constitutional Analysis of the Proposed Ban on Non-Reproductive Human Cloning: An Unjustified Violation of Freedom of Expression?” (2002) 11:1 Health L Rev 32, online: <www.hli.ualberta.ca/HealthLawJournals/~/media/hli/Publications/HLR/11-1-billingsleyfrm.pdf>.

¹¹Ibid.

¹²Ibid.

¹³Ibid.

¹⁴Wesley J Smith, “Constitutional Cloning”, The Weekly Standard (8 September 2004), online: <www.weeklystandard.com/constitutional-cloning/article/5908>.

¹⁵“Cloning: Frequently Asked Questions”, NPR, online: <www.npr.org/news/specials/cloning/faq_blanknav.html>.

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.

What to Expect from The Dominion - Winter Term 2017

Are you planning to celebrate the 150th anniversary of Canada’s Confederation? Will July 1st, 2017, be a regular Canada Day celebration for you? Or do you even celebrate Canada Day at all?

Our first week back blogging introduces the new semester and reminds readers why this project is important to us, the writers, as law students. Each week follows a different theme; Mondays’ posts introduce each one.

A year ago the Law and Social Media team wrote collectively as Ms. Suffragette to celebrate the 100th anniversary of women’s voting rights in Alberta. One week was dedicated to the Famous Five women who challenged the meaning of the word “person”. In the spirit of celebrating influential Canadian politicians, next week’s theme is Founding Fathers of Confederation.

Ever the egalitarians, later in the term we will biograph Women of Confederation. We recognize individuals who made history by working hard for what they believed in. Like suffragists who advocated and agitated for political rights, the Founding Fathers and Mothers of Confederation wanted to change the governing structure of early “Canada”.

Some of our posts, like yesterday’s, review the Centre for Constitutional Studies speaking events. The CCS regularly hosts acclaimed legal experts who make constitutional law both informative and fun.

As we wrote last semester, Confederation and the preceding decades did not establish a foundation of equality and independence for indigenous peoples living in British North America. Therefore, as we recognize Canada’s sesquicentenary, we are mindful that it can be problematic to celebrate laws that created a legacy of Indigenous oppression. Reconciliation and healing must be part of our collective future and we will explore this in light of celebrations of the birth of modern Canada as we know it. In the words of Chief Dr. Robert Joseph, “Our future, and the well-being of all our children rests with the kind of relationship we build today.”

Also last semester, we introduced the constitutional division of powers between the federal and provincial governments (sections 91 and 92 of the Constitution Act, 1867). These distinctions between duties and powers delegated to the respective levels of government pervade our legal system and case law on jurisdiction. Therefore, we will expand on it further using interesting topics like polygamy, firearms, and even a shout-out to the annual student-run Law Show in February.

The federal Department of Canadian Heritage is promoting nationwide celebration projects. For example, one of the official signature projects focuses on engaging Canadians—coast to coast to coast—in reconciliation. The University of Alberta will host some projects as well; click here to check them out.

Most Canadian cities host events sporadically throughout the year. If you’re in Edmonton (as we are) make sure you check out Ice on Whyte (we will be!). It’s coming up soon to take advantage of the cooler temperatures and features ice carving and other family-friendly activities. Although Ice on Whyte is in its 14th year, this year it also boasts activities to celebrate Canada 150.

Over the next 12 weeks, we’ll keep you posted on more fun and interesting events that help understand the reasons for the BNA Act and why its successor, the 1982 Constitution, is so fundamental to living in Canada. So stay tuned!

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?

As we move on from the election, we must resist complacency

Dear Sir or Madam,

While we will be moving away from discussing the American election next week, in our final election themed post, we want to urge you to continue the discussion. Whether you have a Republic with a president or Constitutional Monarchy with a prime minister, a functioning democracy relies on an engaged and informed public.

Section 2(a) of Canada’s Charter of Rights and Freedoms and the First Amendment of the American Constitution protects an individual’s right to express their beliefs, including political views that question governmental action. The freedom of expression has another essential function in the political context, to ensure that information can be freely disseminated to the public. An informed public can identify the societal issues that matter to them and hold the government accountable for change when election day comes.

America’s president-elect has openly threatened the press’ freedom to report on political discourse. During the campaign he had tirades against newspapers The New York Times and The Washington Post, saying that he would “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and… win money instead of having no chance of winning because they're totally protected."[1] The fact that the president-elect is under the impression that he has the power to singlehandedly amend libel laws is concerning in itself, but there is a much more sinister repercussion here. Donald Trump wants to suppress negative opinions of him and bring responsible news sources into disrepute.

But the president-elect is not the only threat to responsible journalism. We have to be cognisant of the fact that we live in an unprecedented age of information. A majority of U.S. adults – 62% – get news on social media, and 18% do so often, according to a new survey by Pew Research Center.[2] The problem with getting our news from Facebook is two-fold. When we get our news from Facebook, biased news sources and hyperpartisan blogs that rely on unsubstantiated claims and false data gain a larger platform. Ever more dangerously, we create own echo chambers when we “unfollow” that old colleague, schoolmate or family member that posts articles that champion beliefs that are different to our own.

So how do we stay informed, engaged, and willing to engage with other perspectives? Support and read responsible journalism. Buy subscriptions to media outlets that insist on fact-checking and don’t rely solely on social media for your news.

Staying engaged also means putting pressure on our leaders. Americans need to hold Donald Trump accountable for his policies and in Canada and abroad, we have to do the same for our leaders’ foreign policy decisions.

Compare the post election statements from Prime Minister Justin Trudeau and German Chancellor Angela Merkel:

Justin Trudeau:

“On behalf of the Government of Canada, I would like to congratulate Donald J. Trump on his election as the next President of the United States.

“Canada has no closer friend, partner, and ally than the United States. We look forward to working very closely with President-elect Trump, his administration, and with the United States Congress in the years ahead, including on issues such as trade, investment, and international peace and security.

“The relationship between our two countries serves as a model for the world.  Our shared values, deep cultural ties, and strong integrated economies will continue to provide the basis for advancing our strong and prosperous partnership.”[3]

Angela Merkel:

“Germany and America are bound by common values: democracy, freedom, as well as respect for the rule of law and the dignity of each and every person regardless of their origin, skin color, creed, gender, sexual orientation or political views. It is based on these values that I wish to offer close cooperation, both with me personally and between our countries’ governments.” [4]

You may be content with Justin Trudeau’s decision to avoid commenting on Trump’s divisive campaign, or perhaps you prefer Angela Merkel’s more conditional congratulations. Either way, you should know how your country’s leadership is responding.

So as exhausted as you may be from hearing about the election, please, don’t get complacent. Support journalism that publishes facts, push your government to be responsive, and don’t close your eyes to different perspectives, as hard as it may be.

Your humble and obedient servants,

The Dominion

[1] Hadas Gold, “Donald Trump: We're going to 'open up' libel laws”, Politico. (26 February 2016), online: <http://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866>

[2] Jeffrey Gottifried and Elisa Shearer, “News Use Across Social Media Platforms 2016”, PewResearchCentre Media and News. (26 May 2016), online: <http://www.journalism.org/2016/05/26/news-use-across-social-media-platforms-2016/>

[3] Kathleen Harris, “Justin Trudeau congratulates president-elect Trump, vows to 'move forward in a positive way’”, CBC News. (09 November 2016), online: <http://www.cbc.ca/news/politics/trudeau-trump-canada-us-relations-1.3843142>

[4] Anthony Faiola, “Angela Merkel congratulates Donald Trump — kind of”, The Washington Post (09 November 2016), online: <https://www.washingtonpost.com/news/worldviews/wp/2016/11/09/angela-merkel-congratulates-donald-trump-kind-of/>

 

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.

The internet-connected car - who owns your data?

In my previous post I raised the need for closer ties between legal authorities and the tech companies who are creating new tracking devices. Let me give an example of what I mean:

The Internet of Things describes a future where almost every physical product we use is connected to the internet, and is passing information and insights to other products or people. Your fridge could tell your supermarket to deliver milk to your home when you're running low. Your shoes could tell your personal trainer that you're gaining weight and need more exercise. Your car could post a message on your bathroom mirror reminding you to wear sunscreen, as the UV index is high outside (based on its windshield readings). And so on.

We're already seeing many of these technologies play out, particularly through new cars.

The modern car already has more computer components than engine parts. There are sensors that can tell who is sitting down behind the wheel, and automatically adjust the seat and mirrors to fit their shape. The navigation system gives advice on popular routes that the driver uses (and warns if there is a traffic disruption along those paths). Future cars will be able to monitor drivers to see if they're falling asleep or are otherwise distracted, and prompt them to pay more attention to the road. Cars could even monitor a driver's vital signs and notify an emergency responder if they're in an accident or are having a medical emergency on the road.

So, the question is, who owns all this personal data that is being tracked, transmitted and analyzed? Is it the car manufacturer? The car dealer? The producer of the computer hardware? Or the producer of the computer software? The company that does the analysis of the driver's data? The wifi provider that is being used to transmit the data? The company that runs the satellite the wifi provider is using? The company that owns the servers it is being stored to?

There could be dozens - if not hundreds - of companies involved in the manufacture and operation of a single car. Currently, no one company is responsible for the fair use (and storage and security) of the user data being collected from this car. The privacy buck can therefore continuously be passed.

And this will be the case for almost all Internet of Things device. If we cannot make one company responsible for the security and management of user's private data, could this be the end of privacy laws?

(Alberta's not-for-profit technology accelerator, Cybera, holds an annual conference in Banff each year exploring new digital technologies and issues such as this. The event is being held at the end of October. For more information, visit the event's website.)

Do tech developers need more versing in privacy legislation?

I should preface my inaugural blog post on this site by noting that I do not work in the legal profession. I work in technology.

But I am reaching out to this community because I am starting to wonder if there should be closer ties between legal / policy experts, and digital techsperts?

My company holds an annual conference in Banff each year to explore new ideas and dazzle attendees with the digital technologies coming down the pike (such as data analytics, artificial intelligence, the Internet of Things, etc).

At last year's event, two high-profile data scientists were sharing some exciting new insights they were able to glean by analyzing the travel patterns of school buses in a given city. (I believe they were able to get weather predictions based on the stopping patterns of school buses). One member of the audience asked if they had given any thought to the implications of studying (and publicly sharing) the movement of specific children in a specific city, and both of the speakers froze. "We have compliance officers who deal with that," they said.

As new internet tracking tools and network-connected devices come online, giving the tech teams who build them total access to the thoughts, interests and daily activities of millions of people, one begins to wonder if they should become more familiar with laws and ethics governing privacy and security?

I'm curious to know what your opinions are on some of the new tracking technologies, and what cautions / advice you would give to the techies plowing into these developments. I'll be sharing one or two examples of upcoming tech issues in the weeks to come, and would be happy to hear your thoughts on what the legal implications are!

(Our conference this year will also be entirely focusing on "using technology responsibly". You can find out more about what we're covering here.)

 

Judging the Constitution: How Precedents Affect Powers

Dear Sir or Madam,

 

Yesterday, we wrote of constitutional conventions. There was some mention made of Re: Resolution to Amend the Constitution, in which the Supreme Court ruled on how conventions would determine how to amend the soon to be patriated Constitution.¹ This is an example of a reference case. A reference case is when a government goes to the Supreme Court and requests that they rule whether or not a certain policy that they wish to turn into law is constitutional.

 

One of the most important references cases was Re: Secession of Quebec. This case filled an important gap left in the British North America Act in 1867. Once Confederation was established there was no way to deconfederate and allow a province to split off. Given how hard it was to establish Confederation this is actually quite reasonable. However, this meant that as tensions rose between Quebec and the federal government there was no process in place to determine what was an acceptable method for Quebec to leave. The Supreme Court was asked whether unilateral secession was possible, and ruled that secession could only happen after negotiations with the federal government. This was ruled on the grounds that one province leaving Confederation would affect all other provinces, so it would be undemocratic to allow it to do so.²  More importantly, the RSQ highlighted four fundamental tenets of the constitution: Federalism, Democracy, Constitutionalism and the Rule of Law, and Protection of Minority Rights.  While the others are also enumerated in statute, much ink has been spilled with regards to the meaning and application of “Rule of Law”.  To put it succinctly, it establishes a hierarchy of laws, with constitutional law at the top, being supreme over all others.  Additionally, it requires adherence to principles such as predictability, in order to prevent arbitrary uses and abuses of power.

 

Highlighting the importance of federalism, the Supreme Court hears reference cases to decide jurisdiction. One example is  Reference re: Regulation & Control of Aeronautics in Canada, decided by the British Privy Council in 1931 (that was our highest court at the time. To find out when and why that practice ended, make sure you keep reading: Judiciary Week is coming up!). This case established federal, rather than provincial, control over the then-new field of commercial aviation. The Privy council gave two major reasons for their decision. First, section 132 of the British North America Act gives the federal government power over everything related to international treaties. Since 1919, aviation was affected by international treaties, so it made sense for the federal government to regulate it in accordance with those treaties. Secondly, the beginning of s. 91, the “POGG clause”, charges the federal government "to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the classes of Subjects by this Act assigned exclusively to the Legislatures of the provinces". This catch-all means that anything that does not fit into a s. 92 provincial power must fit under federal jurisdiction.³ The “POGG” Power refers to the “Peace, Order, and Good Governance” of Canada.

 

The POGG Power is one of the most contested areas in Constitutional law. Often this comes down to an analysis of the POGG Power, which has been defined in three distinct branches. The original use of the POGG was for emergencies such as war and natural disasters. However, economic crises were added to the definition of “emergency” by the Supreme Court in 1975.⁴ The second, covered by the Aeronautics Reference, is the gap branch. New issues, such as technological innovations which were not discussed in the original BNA Act, are given to the federal government.⁵ The third branch, national concern, applies to anything that the federal government can prove is an issue that affects all Canadians and therefore cannot be decided on a provincial level. A good example of this is environmental legislation. This was declared federal jurisdiction by the Supreme Court in R v Crown Zellerbach, in which a company accused of polluting a waterway disputed the federal law it was charged under.⁶ This case is also interesting because it shows how the Supreme Court can shape constitutional interpretation at any time, even when it is not an official reference case.

 

Even when the text of the Constitution is left unchanged, its interpretation can make a great deal of difference to what governments are or are not allowed to do. There are gaps to fill and vague clauses to define. When Parliament finds themselves unsure as to how to proceed, these roles are taken on by the Supreme Court.

 

Your Humble Servants,

The Dominion

 

 

 

¹Reference re: Resolution to Amend the Constitution, [1981] 1 SCR 753, 1 CRR 59 [Patriation Reference].

²Reference re: Secession of Quebec, [1998] 2 SCR 217, 51 CRR (2d) 1 [RSQ].

³Regulation and Control of Aeronautics, Re, [1932] AC 54, 39 CRC 108 [Aeronautics Reference].

⁴Reference re: Anti-Inflation Act, [1976] 2 SCR 373, 68 DLR (3d) 452.

⁵Aeronautics Reference, supra note 3.

⁶[1988] 1 SCR 401, 49 DLR (4th) 161.

#VaderVerdict and the BNA Act: Canada’s Tradition of Retaining Antiquated Text Still Impacts Us Today

Dear Sir or Madam:

Today we are pausing our historical exploration of the BNA Act to address the decision that is sending shockwaves through the Canadian legal twitterverse and beyond. The Vader trial.

Yesterday, the Hon. Justice Denny Thomas of the Alberta Court of Queen’s Bench delivered the much anticipated verdict in the Vader murder trial, convicting Travis Vader on two counts of second degree murder. In 2010, Lyle and Marie McCann disappeared en route from Alberta to British Columbia; their bodies were never located. Police later discovered the McCanns’ SUV and burned-out motorhome. Investigators found Vader’s DNA in the SUV and evidence that Vader had used the McCanns’ cell phone.

In an unprecedented move for Alberta courts, Thomas J. delivered his judgment on live TV. In his decision, Thomas J. relied on s. 230 of the Criminal Code¹ to convict Vader. Criminal law experts have called this an egregious misapplication of the law.² Though s. 230 is still listed in the Criminal Code, it is not a live provision: the Supreme Court of Canada (SCC) declared the provision to be of no force or effect 25 years ago in the case R. v. Martineau.³

What does it mean practically for a law to be of no force or effect?

The constitutional supremacy provision, Section 52(1) of the Constitution Act, 1982, states that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”⁴ Essentially, the Courts can invalidate any provision that they find inconsistent with the constitution. As a result, a conviction under s. 230 cannot stand.⁵ Vader’s defence lawyers will appeal the conviction to the Alberta Court of Appeal at about the same time that this post goes live.⁶

Now the question is, how does this egregious error of an Alberta superior court in 2016 relate to the BNA Act? In our introductory week, we stated that this project seeks to address how Canada’s formation affects our nation TODAY. Parliament’s consistent failure to repeal invalid legislative provisions in the Criminal Code — such as s. 230 — is one example of fundamental governing texts in Canada retaining antiquated language; the BNA Act is another.

Canada’s independence evolved incrementally, and though it was achieved through a uniquely peaceful process, it was conditional at every stage. The original BNA Act gave Canada dominion status, but England retained legislative control and foreign policy control. The 1931 Statute of Westminster⁷ granted Canada legislative freedom to pass, amend, and repeal laws. The Supreme Court of Canada is now the highest court in Canada, but the British Judicial Committee of the Privy Council was Canada’s top court until 1949. Even the thirty BNA Acts between 1867 and 1975 demonstrate Canada’s tendency to build upon prior legislation rather than draft a new document. Ultimately, the 1982 Constitution Act patriated a document largely drafted and passed by British parliament.

This 150-year history of patchwork legislation adopted without significant Canadian rewrites, demonstrates a curious preoccupation with incremental change and maintaining ties with Britain. Practically, it means that our constitution continues to use anachronistic language, including the term “Indian” to refer to Indigenous peoples.⁸ Continuing to use such an outdated descriptor is offensive and perpetuates colonial attitudes and ignorance.

The failure to rewrite or repeal provisions of the Criminal Code also has negative practical implications for our society today. Despite calls for a complete redrafting of the Criminal Code, so-called “ghost laws”⁹ like s. 230 are still black letter law. Section 159 also still appears in the Criminal Code, criminalizing anal sex. However, the Ontario Court of Appeal declared the provision to be of no force or effect in 1995 because it violates s. 15 of the Charter.¹⁰

Canada has established a tradition of retaining ties to Britain by adopting a policy of incremental change rather than overhauling legislation. However, we continue to deal with the effects of this attitude. The language of the BNA Act continues to perpetuate colonial attitudes, and the failure to repeal provisions in the Criminal Code affects Canadians in the criminal justice system, like the McCann family. We have to move forward and be proactive about keeping our legislation current and applicable for the society that we live in.

Stay tuned for our companion piece to s. 91. Our foray into s. 92 will answer the question “what do Marlon Brando, health care, oil & gas, and margarine have in common?”  Until then, share your thoughts on the Vader trial with us in comments or tweet us as @Dominion_2017.

 

Your humble and obedient servants,

The Dominion.

 

¹RSC, 1985, c-46 [Criminal Code].
²Hamish Stewart, “Ok, so, just to be clear, Peter Sankoff is entirely correct here” (15 Sep 2016), posted on Hamish Stewart, online: Facebook https://www.facebook.com/hamish51
³[1990] 2 SCR 633, 109 AR 321.
⁴Being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
⁵Peter Sankoff, “Travis Vader Conviction”, Storify (15 Sep 2016), online: <https://storify.com/petersankoff/travis-vader-conviction>; R v Townsend, 2010 BCCA 400, 202 BCAC 55 at para 43.
⁶Paige Parsons, “Travis Vader verdict won’t stand, say some legal experts – latest twist in trouble murder case”, Edmonton Journal (15 Sep 2016), online: <edmontonjournal.com/news/crime/travis-vader-verdict-wont-stand-say-some-legal-experts-latest-twist-in-troubled-murder-case>.
⁷1931 (UK), 22 & 23 Geo 5, c 4.
⁸See Indian Act, RSC, 1985, c I-5.
⁹Paula Simons, “Paula Simons: Travis Vader verdict ignites legal firestorm after experts cite error in judge’s decision”, Edmonton Journal (15 Sep 2016), online: <edmontonjournal.com/opinion/columnists/paula-simons-travis-vader-verdict-ignites-legal-firestorm-after-experts-cite-error-in-judges-decision>.
¹⁰R v M(C), 82 OAC 68 (1995), 23 OR (3d) 629.

Law and Social Media - Meet the Team - Leri Koornhof

Dear Sir/Madam:

 

There are but four working and schooling days in this week following Labour Day (which was first celebrated in the spring five years after first creating the Dominion). Therefore, this post is the first of two today to introduce all five bloggers in the Law and Social Media course.

We are pleased to introduce the gang’s second oldest member, and the only one born in the 1980s (which were so much better than the 1970s, we’ll have you know, Mr. Welke). Leri Koornhof is a third-year student at the Faculty of Law at the University of Alberta. She is the only blogger who was part of this course last year and is excited to continue the standard of research, writing, and connecting history with interesting modern concepts which may relate to the study of law.

Ms. Koornhof has an educational background in Humanities and her work experience includes writing and editing for a former Minister of Justice Canada, serving tables at both elegant and non-elegant establishments, selling sports cars on the west coast, and tutoring and mentoring children and youth with special needs. Despite her advanced age (of which LSA President Nick Todd often is apt to remind her), Ms. Koornhof has learned to use these novel instruments with microchips and invisible rays to share her thoughts on historical events and how they interact with current legal analyses and social issues.

Contrary to Mr. Todd’s insistence, Ms. Koornhof is not a contemporary of the The Dominion. However, what she lacks in first-hand experience she vows to meet by researching and analyzing interesting facts to keep The Dominion’s readers glued to their brightly lit technology screens. For example, one major change in law from the 19th century to the 20th century was granting women and non-European men the right to vote. Ms. Koornhof’s work with the Ms. Suffragette team in the 2016 Winter semester explored the history of the suffrage movement in Canada. Click here for a #FBF from this Friday to another Friday past (a bit like virtual time travel!) where Ms. Suffragette explored the famous Persons Case of 1929.[1] Until the Judicial Committee of the Privy Council (JCPC)[2] interpreted it differently the BNA Act stood in the way of women being considered legal persons for the purpose of becoming senators. Thus, in the words of the JCPC, the BNA Act was to be seen “a living tree capable of growth and expansion within its natural limits” (tip: if you are just starting law school, you will probably see this doctrine of constitutional law on your exam) so as to accommodate the changing needs of Canadian society.

 

Your Humble Servants,

The Dominion

 

[1] [1930] AC 124, 1929 UKPC 86.

[2] One of the major changes during the evolution of Canada’s independence during the 20th century following the BNA Act was ceasing to appeal court cases to England’s JCPC; instead, we rely on our Supreme Court of Canada for the ultimate interpretation of legislation.

Law and Social Media - Meet the Team - Paul Welke

Dear Sir or Madam,

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

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

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

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

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

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

 

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

 

Your Humble and Obedient Servants,

The Dominion