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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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Call to Action #86: Fake News & the Mainstream Media

 

(Illustration by Luke Swinson via Waubgeshig Rice, “Letter to a Young Indigenous Journalist | The Walrus”, (31 August 2020), online: The Walrus <https://thewalrus.ca/terra-cognita-letter-to-a-young-indigenous-journalist/>)

 

Tansi Nîtôtemtik,

Today we will discuss the history of media bias in reporting on Indigenous issues and events, and evaluate Call to Action #86, which states:

We call upon Canadian journalism programs and media schools to require education for all students on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations^[1]

In drafting this post, we had originally compiled some headlines to display the difference in media coverage on news involving Indigenous people and news involving non-Indigenous people.  Ultimately, we decided that this approach was harmful and painful, and would only contribute to the problem that Call #86 hopes to address.

A media spin to grab attention or redirect the focus of a story is a common tactic, from the most obvious clickbait to more subtle exploitive or erasive coverage.  Prior research has referred to this type of coverage as “shallows and rapids”.^[2]  ‘Shallows’ are when, under normal circumstances, the mainstream media essentially ignores any coverage of Indigenous issues.^[3]  ‘Rapids’ occur when the news hones in on either crisis or calamity, such as the classic portrayal of protesters as insurgents during land or rights disputes.^[4]

Dominant media discourse on Indigenous issues and events is wholly colonized and perpetuates harmful stereotypes.  A fabulous analysis of racism in Canadian media can be found in the book Seeing Red: A History of Natives in Canadian Newspapers by Mark Cronlund Anderson and Carmen L. Robertson, which chronicles Indigenous media coverage from the time of confederation up until 2009.  An updated version of this book is slated for release this year.^[5]

This harmful discourse has long been flagged as problematic and in addition to the TRC. The Royal Commission on Aboriginal People and the Report on Missing and Murdered Indigenous Women and Girls have also called for more balanced representation in media, and for decolonized coverage that avoids perpetuating stereotypes.^[6]

So, how have journalism schools responded?

In 2017, J-Source sent a survey to 21 journalism programs at 19 universities across Canada, and received responses from 17 schools.^[7]  What they discovered is that schools want to teach Indigenous topics in a meaningful way that teaches students to engage and report on these topics sensitively and with accuracy. The results of this desire however, are tempered by available financial and staffing resources.^[8]  The TRC does not specify the format of required education called for in Call #86, and interpretation of the Call has varied across institutions. While UBC has included mandatory courses in its program even prior to the release of the TRC's final report. Other programs have chosen to develop elective courses and make them broadly available as with Ryerson’s online course on reporting in Indigenous communities.^[9]

Additionally, Journalists for Human Rights developed the Indigenous Reporters Program in 2014.  This program creates pathways for Indigenous people to pursue careers in journalism, and engages and trains non-Indigenous journalists on best practices for reporting Indigenous stories and including Indigenous voices in general reporting.^[10]

Overall, it does appear that journalism programs across Canada have made at least some effort to incorporate Indigenous topics.  However, unless these courses are made mandatory and full length/full credit, there is a risk that they will a) not be taken as seriously as other required learning, and b) that people can simply elect not to engage with this learning. 

Team ReconciliAction recognizes the effort to respond to the bias in media at the educational level, however, elective courses will only engage those already interested in learning about Indigenous history and issues.  To achieve the highest grade, this learning should be mandatory for anyone pursuing a career in media.  As a result, we assign a grade of ‘B’ to Canadian journalism and media programs.

Until Next Time,

ReconciliAction YEG

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[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 296.

[2] Augie Fleras, The Media Gaze: Representations of Diversities in Canada (University of British Columbia Press, 2012) at 61–62.

[3] Ibid.

[4] Ibid.

[5] Mark Cronlund Anderson & Carmen L Robertson, Seeing Red: A History of Natives in Canadian Newspapers (Univ. of Manitoba Press, 2011); Shelby Lisk, “Rewriting journalism: How Canadian media reinforces Indigenous stereotypes”, (3 September 2020), online: TVO.org <https://www.tvo.org/article/rewriting-journalism-how-canadian-media-reinforces-indigenous-stereotypes>.

[6] Canada, Royal Commission on Aboriginal Peoples, Report, 2:614; TRC, supra note 1 at 296; The National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (Quebec, 2019).

[7] Meagan Gillmore, “Long journey of reconciliation ahead at Canada’s journalism schools”, (20 April 2018), online: JSource <https://j-source.ca/article/long-journey-of-reconciliation/>.

[8] Ibid.

[9] Ibid.

[10] “Indigenous Reporters Program”, online: Journalists for Human Rights (JHR) <https://jhr.ca/our-work/canada-indigenous-reporters-program>.

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.

Fringe Political Parties and the Democratic Process

Canada constitutionalized the right of people to join and leave organizations, take collective action, and pursue interests of members in section 2(d) of the Charter of Rights and Freedoms. Canada also enshrined the right to participate in federal elections (section 3). These are the same rights that allows political parties to assemble and have candidates run under a party name in every election.

There are many ‘serious’ parties that run in every election. Excluding the biggest contenders (Conservative, Liberal, and NDP), there are also many small parties who benefit from s 2(d) of the Charter, such as the Communist Party of Canada, Democratic Advancement Party of Canada, and the Libertarian Party of Canada, to name a few.¹

But what about the satirical parties, who, some would argue, abuse this Canadian fundamental freedom, allegedly making a mockery of the democratic process?

The Rhinoceros Party of Canada was active for 30 years, from 1963-1993 and in 2010, re-emerged under a new name. The party ran new candidates in the 2015 federal election, and their main campaign promise was “a promise to keep none of its promises.”² Their platform included repealing the law of gravity, banning Canadian winters, and getting rid of the Rocky Mountains so “Albertans can see the Pacific sunset”.³

Though humorous and satirical, the Rhino Party is considered a legitimate political party under Canadian law. As long as they ran candidates in at least 50 ridings (see Figueroa), the Rhino Party was able to keep its status into the 90’s. Through its 30 year-long existence, no one from the Rhino Party was ever elected as an MP; they were not victorious in any riding.

Should the party have been allowed to exist in the first place? They have never had a successful candidate, and their platform is both outrageous and unrealistic.

Sections 24 and 28 of the Canada Elections Act legislates that to be a registered party, a party must have 50 candidates on the ballot. In the 2003 case of Figueroa v Canada, Figeuroa argued that the 50-candidate rule discriminated against smaller parties and was unconstitutional under s 3.⁴ The Supreme Court of Canada found that s. 3 does not provide unlimited participation in the political process.

“The mere fact that the legislation departs from absolute voter equality or restricts the capacity of a citizen to participate in the electoral process is an insufficient basis on which to conclude that it interferes with the right of each citizen to play a meaningful role in the electoral process.”⁵

The Court has clearly taken the position that although it understands the importance of section 3, it will not provide unlimited rights for participation in democracy. But should parties including the Rhino Party be allowed to run candidates?

However offensive as this may seem to some, fringe parties like the Rhino Party play an important role in the Canadian political scene. Sebastien Corriveau, the Rhino Party’s leader, hopes that his party’s approach to politics will help to “engage at least some Canadians in the democratic process”.⁶

"There are so many people who don't care about politics. If we can make them engage through humour, then that's okay," he said. "We always run for a majority government, but failing that, some comedy. There are some things worth saying that no one else can say."⁷

So perhaps it’s important to have these parties who are willing to take a different approach to politics, all in the name of the democracy.

¹“Rhinos and Pirates: A Look at Canada’s Federal Fringe Parties”, CTV News (30 August 2015), online: <www.ctvnews.ca/politics/rhinos-and-pirates-a-look-at-canada-s-federal-fringe-parties-1.2538158>.

²“Rhino Party Escapes Extinction to Run in September By-Election”, CBC News (7 August 2007), online: <https://web.archive.org/web/20121109030040/http://www.cbc.ca/news/canada/story/2007/08/07/rhino-election.html>.

³“14 Weird Platform Promises From teh Now-Defunct Rhinoceros Party”, Maclean’s (30 August 2014), online: <www.macleans.ca/society/14-weird-platform-promises-from-the-now-defunct-rhinoceros-party/>.

⁴Figueroa v Canada (Attorney General), 2003 SCC 37.

⁵Ibid at para 36.

⁶Kathleen Harris, “Fringe Parties Fight to Spread Message, Sway Swing Ridings”, CBC News (29 August 2015), online: <www.cbc.ca/news/politics/canada-election-2015-fringe-parties-marijuana-1.3206935>.

⁷Ibid.

 

Trek Yo'self Before You Wreck Yo'self

On stardate 42523.7 (October 26th, 2364 for those of us in the 21st century), the crew of the USS Enterprise-D, under the command of Captain Jean-Luc Picard (Sir Patrick Stewart¹ at his finest), pulled into Starbase 173 for what was presumably a routine stop. For one member of Picard's crew, this visit resulted in a fight for his life and autonomy, but not against an enemy of Starfleet.  This battle was to be fought against an overzealous officer from within their own ranks.

Great science fiction prompts us to imagine a world different from our own, to explore questions of ethics, morality, and even law. Cue episode 9 of season 2 of Star Trek: The Next Generation, entitled “The Measure of a Man”.²

This particular episode focuses on Lieutenant Commander Data (brilliantly portrayed by Brent Spiner³), the first and only android to serve with Starfleet. Upon their arrival to Starbase 173, we are introduced to Commander Bruce Maddox, a brilliant but overconfident science officer who wishes to dismantle Data in an effort to study and eventually replicate him. Though Data lacks the capacity for emotion, he is able to form and express preferences. With this in mind, he refuses to submit to the procedure. Data  subsequently resigns his commission in Starfleet when it appears to be the only way to halt the procedure.

The episode then transforms into a legal drama. Captain Phillipa Louvois, a legal officer, convenes a hearing over the issue. Commander Maddox takes the position that Data is property of Starfleet and therefore cannot resign. Capt. Picard is assigned to represent Data, while the case is “prosecuted” by Commander William Riker, Picard's First Officer and Data's good friend.

Riker elicits evidence that Data is merely a machine.  He is also successful in having facts read into the record. Specifically, that Data was created by a cyberneticist, that his positronic brain has an impressive processing speed that is unmatched by any other known life form, that he has superhuman strength, and that he can have his hand removed and be turned off without permanent harm.

Picard begins his arguments by wisely conceding that Data is a machine, but follows up by claiming that human beings are also “machines” of a sort, and that this is largely irrelevant. The matter at hand is whether or not Data is sentient. While questioning Maddox, Picard asks him what would be required to meet a minimum threshold for sentience. Maddox responds, “Intelligence, self-awareness, consciousness.” He effectively assists the court in formulating a legal test by which to assess Data's claim that his is sentient, and therefore unable to be held to be property.

Maddox quickly concedes that Data is intelligent, and Picard makes a fairly easy case for self-awareness as well. On the point of consciousness, Picard does not necessarily argue that Data is conscious, but that “consciousness” is a criterion that is exceedingly difficult to test. He proposes that if Data can meet even the lowest standard of consciousness, he must be sentient.

In his closing, Picard states that someone will eventually succeed in replicating Data. It is the court’s decision in this matter that will determine how humanity and this new race of artificial life forms will interact. He effectively asks the court to look at policy considerations regarding “the boundaries of personal liberty and freedom”, finally asking, “Are you prepared to condemn him and all who come after him to servitude and slavery?”

Needless to say, Picard wins the day and Data wins his autonomy. Acting as judge, Louvois concludes that she doesn't really know what Data is, but that he should have the freedom to explore these things for himself.

Most television shows that focus on law make some legal errors, and this episode is no exception. Picard's calling of a “hostile witness”, his questioning of Data while Maddox is giving evidence, and the court referring to Riker as the “prosecution” despite Data not being accused of any crime are three examples that come to mind.  Much of this is excusable, as it allows for a complex legal issue to be resolved in 45 minutes of screen time.  

Having said that, “The Measure of a Man” was accurate in a couple of important aspects. After the parties agreed to a test for sentience, they were both correct in arguing for how it should be applied. As is often the case in law, policy considerations were a major deciding factor. Picard's argument that ruling Data as property would open the floodgates for future enslavement of similar beings was enough for the court to view sentience with the broadest application possible, basically erring on the side of autonomy over the potential for slavery.

Even for those who might not have an affinity for science fiction, “The Measure of a Man” is worth a watch for it's value as a legal drama.

 

1 online: Twitter <twitter.com/SirPatStew>.
2 “The Measure of a Man”, Star Trek: The Next Generation (Hollywood, Cal: Paramount Domestic Television, 1989).
3 online: Twitter <twitter.com/BrentSpiner>.

Are Dementors Coming to Canada?

Separate from muggles (non-magical people), witches and wizards live their lives in secret. Hiding their magic from the non-wizarding community, they formed an entire world with schools, government agencies, and policing forces. Their existence is unknown to muggles as their government enacts laws to keep their identities and use of magic a secret.

Witches and Wizards live peacefully alongside No-Majs (Canadian and American muggles), attending the Calgary Stampede every summer, and skiing in the Rockies during the winter.

Similar to No-Maj Canada, serious offenders in the wizarding world are sent to prison. Across the pond in Britain, the guards of the magical prison, Azkaban, were Dementors (until the fall of Lord Voldemort, when they were replaced by specially trained wizards).

This begs the question: Could Dementors be validly employed as guards of Canadian wizarding prisons?

(For the purpose of this article I assume that all laws enacted in Britain for the wizarding population apply in Canada.)

Dementors have been called the scariest magical creature.¹ They feed on hope, happiness, and peace. They also “suck every good feeling, every happy memory” out of their victims. Many prisoners died in Azkaban, or turned insane from the Dementors.

The conditions at Azkaban were declared inhumane from the presence of Dementors, and would arguably breach s. 12 of the Charter: the right not to be subject to cruel and unusual punishment.²

In Canadian jurisprudence, cruel and unusual punishment is defined in R v Smith as “so excessive as to outrage standards of decency”, or “grossly disproportionate to what would have been appropriate.”³ The Court in Smith and later cases, provide guides to measure whether the punishment was proportional. Some of these include the the person’s characteristics, the seriousness of the crime, the objectives of the punishment, and how the individual would be impacted.⁴

Importantly, Canadian courts have made note that the test for a cruel and unusual punishment is deferential to the government and a finding of cruel and unusual should be rare.⁵

In Azkaban, all prisoners regardless of the crime are subject to the Dementors and their effects. This in-and-of-itself indicates that proportionality is an issue; the seriousness of the crime is not considered at all when prisoners are sent to Azkaban as they are subject to the same Dementor interaction.

In addition, the use of Dementors as prison guards could be deemed a form of psychological torture. Canada’s Criminal Code defines torture as “any act or omission by which severe suffering, whether mental or physical, is intentionally inflicted on a person”.⁶ Dementors purposefully breed on pain and suffering, driving prisoners to insanity and overwhelming them with their darkest, saddest memories. That most definitely constitutes a form of torture under the Criminal Code.

Torture is illegal in Canada under the Criminal Code, but is also declared cruel and unusual under s. 12 of the Charter. For these reasons and with acknowledgement of deferential judgments, I can conclude that the use of Dementors at Azkaban breaches prisoners s. 12 Charter rights to be free from cruel and unusual punishments.

However, Ministry action that breach Charter rights may be saved under s. 1, a justified infringement. The Ministry of Magic in Britain allowed Dementors to remain as the guards to Azkaban for hundreds of years for a number of policy reasons that must be acknowledged.

First, Dementors must feed on souls. By confining the creatures to the Island on which Azkaban is situated, it keeps them in a controlled area by allowing them to feed on prisoners’ souls. If Dementors were kicked off the Island, many fear that they would head for the cities to find souls to feed on, jeopardizing the souls of innocent witches and wizards.⁷

Second, they are incredibly effective prison guards.⁸ Prior to Azkaban’s existence, convicted witches and wizards would be sent to smaller prisons around Britain. Breakouts were common and the magical community feared breaching the International Statute of Secrecy when prisoners escaped and made a ruckus. Since Azkaban was built, only two prisoners have escaped.  

Third, Aurors (the specially trained wizards who now guard Azkaban) are an elite group of specially trained witches and wizards. They are the crème-de-la-crème of the wizarding world, and serve to protect. However, their use as prison guards at Azkaban is arguably a waste of resources. These magical people are specially trained to catch witches and wizards practicing in the Dark Arts. They are not trained in prison control or magic outside of the Dark Arts.

However, Dementors have declared their allegiance to Lord Voldemort; they allowed two mass breakouts of Death Eaters in support of He Who Shall Not Be Named. Though he is dead and gone, it is possible that another powerful evil wizard will come along and gain their support.

All this to say, it is not likely that the use of Dementors at Azkaban could be a justified infringement under the Charter given the policy factors discussed above.

Though I cannot in good conscience propose an alternative, Mr. Shacklebolt has agreed to listen to proposals from readers. He is expected to make the trip to Ottawa next week where he is taking appointments.

¹J.K. Rowling, “Why Dementors are the scariest magical creatures”, Pottermore (blog), online: <https://www.pottermore.com/features/why-dementors-are-the-scariest-magical-creatures>.

²Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11, s 12.

³R v Smith, [1987] 1 SCR 1045.

⁴Smith, supra note 3; R v Goltz, [1991] 3 SCR 485; R v Morrisey, 2000 SCC 39, [2000] 2 SCR 90.

⁵Steele v Mountain Institution, [1990] 2 SCR 1385.

⁶Criminal Code, RSC 1985, c C-46, s 269.1(2).

⁷J.K. Rowling, “Azkaban”, Pottermore (blog), online: <https://www.pottermore.com/features/why-dementors-are-the-scariest-magical-creatures>.

⁸Ibid.

 

You Can’t Handle The Truth!

As law students, many of us have that one legal television show or movie that inspired us to become a future lawyer. For the criminal law enthusiasts, maybe it was an episode of Law and Order that stood out. You would witness the New York City Police chase suspected criminals through dramatic and sometimes horrific investigations, then watch them hand over their work to Manhattan District Attorneys to duke it out in court.

For the future corporate lawyers, maybe it was Harvey Specter’s impeccable looks, stylish office, and fantastic style that makes the corporate lifestyle so attractive. I know I have personally watched my fair share of Suits. For others, maybe it was Elle Woods and her quirky route to becoming a Harvard Law graduate, all while mastering the “bend and snap,” that convinced you this degree was something you should and could pursue.

There is a plethora of legal comedies, dramas, and cinematic portrayals, one that has always stood out to me is A Few Good Men. I can still remember the first time I watched a young Tom Cruise losing his cool in court, trying to force Jack Nicholson to admit that he in fact ordered the “Code Red” that killed a Marine Private. Watching the heated exchange followed by Nicholson’s famous line “you can’t handle the truth,” was so exciting and intense all at the same time. Watching this, I knew that I wanted a career filled with that type of intensity and adrenaline rush.

A Few Good Men may have been the movie that inspired me to become a lawyer, but my career will be strikingly different than that of the young Tom Cruise’s character. In the film, Cruise plays Lieutenant Daniel Kaffee, a United States Navy lawyer tasked with defending two US Marines accused of murdering their fellow Private. In the film, Kaffee’s clients maintain they were just following orders when they violently disciplined the deceased. The entire investigation is run through military law practices, and ends in military court.

In Canada, the military have their own court system separate and unique from the regular criminal justice system. So what would military court be like for Daniel Kaffee here in Canada?

Similar to the United States, Canada has a parallel and separate military court system. Military justice is administered through the Code of Service Discipline, which is found in Part III of the National Defence Act.¹ The Code allows the military to enforce disciplinary standards on members of the Canadian Armed Forces (CAF) to maintain cohesion within military units.² The Supreme Court of Canada recognizes the need for the parallel military system to enforce disciplinary standards that are higher than what is expected of civilians.³

Similar to the procedure in A Few Good Men, Canada has a tribunal system for military justice. The military system acknowledges that CAF members, who are subject to military discipline under the Code, must be afforded fair, just, and transparent justice.⁴ To ensure fairness, military tribunals have two tiers. Summary trials deal with minor offences related to military discipline and unit effectiveness.⁵ These are dealt with quickly so the member can immediately return to duty.⁶

For more serious offences, courts martial are administered. Courts martial are similar to civil and criminal courts but they have an independent military judge overseeing the formal process.⁷ Canada has two forms of court martial, General and Standing. A General Court Martial is similar to a criminal jury trial. This process includes a military judge and five randomly selected CAF members.⁸ The judge acts as the trier of law, deciding the formal sentence, and the CAF members are the triers of fact determining a verdict.⁹ This is the type of formal process depicted in A Few Good Men. In contrast, a Standing Court Martial is similar to a judge-alone criminal trial where the military judge wears both hats.¹⁰

The military court system is imperative to the CAF’s function. The specialized system allows the military to maintain discipline and integrity needed to carry out the dangerous operations for which they are responsible. Although their formal court processes are similar to the criminal court system, it is necessary that people trained in military operations decide punishment. Civilians cannot accurately judge the discipline and enforcement needed to carry out certain orders and operations.

 

 

 

¹ National Defence Act, RSC 1985, c N-5, Part III, ss 66-159.

² Canada, National Defence and the Canadian Armed Forces, Canada’s Military Justice System, (Ottawa: National Defence Headquarters, 2014), online:

<www.forces.gc.ca/en/news/article.page?doc=canada-s-military-justice-system/hnea75sh>.

³ Ibid.

⁴ Ibid.

⁵ Ibid.

⁶ Ibid.

⁷ Ibid.

⁸ Ibid.

⁹ Canada, National Defence and the Canadian Armed Forces, Canada’s Court Martial System, (Ottawa: National Defence Headquarters, 2016), online: <www.forces.gc.ca/en/about-reports-pubs-military-law/court-martial-system.page>.

¹⁰ Ibid.

Music Monday: Throwback to 1867

As a further tribute to our faculty’s annual Law Show this past weekend, this week’s blog theme will focus on differences in pop culture between 1867 and 2017. It’s the week of throwbacks! We will compare people who lived in and around 1867 with people today who make similar cultural contributions, 150 years later. Though not directly in concert with the BNA Act, it is evident that culture and politics intertwine. To kick off this throwback week, we begin with a musical comparison.

Considering that popular music styles evolved quickly in the 20th century, it’s safe to say that music was drastically different in 1867. In western music culture, it was the romantic period. Music was expressive, emotional, and it produced legends like Beethoven and Schumann (Robert and Clara!). They had only pens, paper, and their own minds and experiences to inspire their music.

Nowadays, our musical influences include Justin Bieber, Kanye West, and Beyonce, not to mention the endless sources on the internet from which artists can get inspiration. We have digital online music writing programs and online instruments, making music easier than ever to compose, perform, and share. John Adams, a 20th and 21st century minimalist composer, warned about the overuse of technology in music composition, stating,

“We’re in danger of an overflow of extremely mediocre music… partly because composing has become dangerously easy. Everyone can carry around software programs on a laptop and compose a new piece in a single evening. But the trouble is, of course, that the software dictates the parameters of what you can do, how you can think”.¹

While there are downfalls in the modern age of music composition, music is unique in that the finished product can exist forever, electronically. Composers and musicians are not just working with and against their contemporaries; they do so also with those who came before them. In this 21st century contemporary post-modern era of music, we see composers taking influence from all areas of music, and from all time periods to give listeners new experiences.

For example, Adams’ work On the Transmigration of Souls is a choral piece that pays tribute to the victims of the 9/11 attacks. The song does not follow any obvious musical structure, and incorporates whispering, noise, and other non-traditional sounds throughout the composition. As a young child, I performed this work with my choir, and I can attest to the fact that it was not “typical”. In fact, I can recall many rehearsals during which we all struggled to remember the lyrics and flow to this 25 minute-long piece, because to us, it didn’t make musical sense. It incorporated victims’ names and quotes from family members of victims, changing themes and never staying in one “place” for too long. At the time, it seemed like the epitome of post-modern non-sensical music.

Had I dug deeper, I would have discovered that it wasn’t such a far stretch from works of the 19th century. Adams has stated in interviews that he has an obsession with composer Ludwig van Beethoven; that, “we [all] have music that we love so much that we kind of want to get under the skin of that composer, for me taking not so much melodies but just harmonic fragments”.² Adams uses his privileged position as a musician who follows some of our culture’s best composers to incorporate their art into his; creating something new from something old.

Fittingly, we performed On the Transmigration of Souls alongside Beethoven’s Symphony No 9, a 19th century classic. Adams’ piece is a commemoration of those who died in 9/11, intended to provide a “memory space”³ where listeners can be alone.⁴ In contrast, Beethoven’s 9th is a rejoice of freedom. These two songs are performed together all over North America, and tell a story of oppression and mourning and eventual release.⁵

Comparing Adams with Beethoven is only one example of how music between then and now can differ, but still be complementary. By no means do I wish to hear One Direction juxtaposed with Schubert, but to isolate music from 1867 as totally different and irreconcilable with music from today could be a mistake. For choir nerds like me, the ability of musicians to pull influence from 150 years ago is exciting: it leaves open endless possibilities for composers of the future.

¹Guy Dammann, “We Are All Living in Fear”, The Guardian (15 October 2008), online: <www.theguardian.com/music/2008/oct/15/usa>.

²NPR Staff, “John Adams Mines Beethoven’s Mind”, NPR Music (10 November 2015), online: <www.npr.org/sections/deceptivecadence/2015/11/10/450560466/john-adams-mines-beethovens-mind>.

³Tom Huizenga, “John Adams’ Memory Space: ‘On the Transmigration of Souls’”, NPR Music (10 September 2011), online: <www.npr.org/sections/deceptivecadence/2011/09/10/140341459/john-adams-memory-space-on-the-transmigration-of-souls>.

⁴Ibid.

⁵Benjamin Carlson, “What Does Beethoven’s Ninth Symphony Mean”, The Atlantic (7 September 2010), online: <www.theatlantic.com/entertainment/archive/2010/09/what-does-beethovens-ninth-symphony-mean/62556/>.

Alice in Wonderland: It’s Not Just Fiction

This Friday and Saturday, Law Show, a not-for-profit variety show at the University of Alberta Faculty of Law will be performing “Alice in Wonderlaw”. Though many of us are familiar with the story of Alice in Wonderland, the name has a unique connotation when discussed in the context of the Canadian law. In the literal sense, Alice in Wonderland is a tale in the nonsense literary genre.¹The story follows a young girl who falls down a rabbit hole, meeting interesting and strange characters on her journey to return home. Legally, courts in many countries have associated the title with laws which are illogical. The term has become associated with laws and policies which are unrealistic, imaginary or impossible to implement.

In Canada, Alice in Wonderland (AIW) comes into play when grappling with many aspects of our legal system. In the context of aboriginal law, AIW qualities are rampant in both specific and comprehensive aboriginal land claim litigation.² In dealing with comprehensive claims, these qualities are seen from the Canadian and Quebec governments’ failures to honor the James Bay and Northern Quebec Settlement Agreement (JBNQA).³ In Namagoose v Robinson⁴, a court case that dealt with governmental non-compliance with the JBNQA, the Crown argued that the treaty was not statute nor was it ratified, so the government was not required to comply with its directives. In its decision, the court described the Crown’s argument as “ludicrous and incomprehensible”⁵, and therefore AIW-like.

Specific claims, unlike comprehensive aboriginal land claims, are based on a specific claim of non-compliance with a treaty provision;⁶ comprehensive claims are based on claims before British sovereignty. Specific claims are dealt with under the Specific Claims Tribunal Act⁷, for which the claims process has been deemed “Wonderlandish”.⁸ All claims under $150 million go through the tribunal, but the monetary worth of the claim has not yet been determined when that decision is made. How can a case be determined to claim less than $150 million, when the claim itself doesn't quantify an amount of money? Secondly, both the claim money, and administrative costs are paid out of the same grant. Therefore, it’s possible that the grant money has been spent on administration of the tribunal, leaving a dry pot for prevailing parties. In these respects, the government has channeled their inner Alice and gone down the rabbit hole with their policies and arguments, leaving all those involved in the dark.

AIW themes even take root in basic legal issues. Many legal scholars and professionals have criticized standard form terms on products and questioned whether they could really be contracts:

“Almost no one reads the terms… and for good reason: the product or service is necessary; the standard form will not be changed, since any attempt at negotiation would be futile; other suppliers are likely to insist on similar terms. As Radin says, there is an “Alice in Wonderland” quality in supposing that these forms are contracts.”⁹

In another another area, Alice is discussed in reference to photographic evidence in criminal trials. It is AIW-like, says D.S. Gardner, that x-ray evidence is admitted easily when it is impossible to ensure its accuracy.¹⁰ In contrast, photographic evidence is subject to a higher level of scrutiny even though each photo taken is independently verifiable.

All this is to say that that Canadian law is not perfect. There are many policies that are fantastical, arguments that do not make sense, and laws that are outdated and unrealistic. Alice appears in many areas of the law, and just like the Lewis Caroll tale, it is unlikely that she will go away anytime soon.

^{*Edited on February 1st.} 

¹Randy J Maniloff, “Alice in Wonderland Provides Proof That the Legal System Makes No Sense”, LexisNexis Legal Newsroom (22 April 2014) online: <www.lexisnexis.com/legalnewsroom/insurance/b/insurance-coverage/archive/2014/04/22/alice-in-wonderland-provides-proof-that-the-legal-system-makes-no-sense.aspx?Redirected=true>.

²Michael Posluns, “Aboriginal Land Claims: The Alice in Wonderland Dimension of the Canadian Judicial System”, SLAW (27 October 2011), online:  <http://www.slaw.ca/2011/10/27/aboriginal-land-claims-the-alice-in-wonderland-dimension-of-the-canadian-judicial-system/>.

³An Act Approving the Agreement Concerning James Bay and Northern Quebec, CQLR c C-67.

⁴Namagoose v Robinson, FCTD, 1991 FCJ No 904, action No T-451-91.

⁵Supra, note 2.

⁶Michael Posluns, “Specific Claims: The Alice in Wonderland Dimension of the Canadian Judicial System, Part 2”, SLAW, (25 January 2012), online: <http://www.slaw.ca/2012/01/25/specific-claims-the-alice-in-wonderland-dimension-of-the-canadian-judicial-system-part-2/>.

⁷Specific Claims Tribunal Act, SC 2008, c 22.

⁸Supra, note 6.

⁹Anthony Dugan, Jacob S. Ziegel & Jassmin Girgis, “Review Essay: The Problem of Standard Form Contracts: A Retreat to Formalism” (2013) 53:3 CBLJ 475 (WestlawNext Canada).

¹⁰Kent W. Roach et al, “Photographic Evidence: Its Probative Value at Trial and the Judicial Discretion to Exclude it From Evidence” (1973-1974) 16:2 CLQ 149 (WestlawNext Canada).

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.

Be Successful, Just Not Too Successful: A Perspective on Clinton's Loss

Dear Sir or Madam:

Last week’s US presidential election is still a controversial topic. People around the world are still forming opinions, questions, and trying to fathom how such a controversial candidate won the White House. One facet of the debate that remains is wondering just how did Hillary Clinton lose? It seems that many people thought she had the race in the bag. The polls suggested she would win, rational thought would seem to suggest she would win, experts suggested she would win;¹ but come Election Day everything that suggested she would win was incorrect. Surprisingly, Clinton did not just lose; Trump won in an unpredictable landslide victory. As the election results continued to finalize, the hope of watching the first female president win the highest seat in the land vanished.

Where do these results leave us? As a woman writing this post, it leaves me feeling somewhat demoralized and frustrated. People seek out university and college educations with the ideal that they can be anything they desire; provided that they put in the required work to achieve these goals. Hard work pays off, a statement seemingly without gender implications, something many of us are taught from a young age. We enter into these institutions with hopes of becoming a doctor, a lawyer, a teacher, an artist, or maybe even a president one day. If this recent election has taught me anything however, the sentiment that you can be anything may be true; but women will struggle much harder to achieve these goals than men.

Political analysts trying to make sense of Trump’s win have developed many theories as to why Clinton lost. Some argue that Americans were so frustrated by traditional political leadership that they voted for the candidate resembling nothing of a career politician.²  Others point to the FBI’s investigation into Clinton driving away some educated voters.³ While the loss is likely explained by a multitude of factors, one recurring speculation is she lost, at least in part, because she is a woman.⁴

Clinton’s campaign focussed on shattering the most salient glass ceiling in the world, ultimately proving unsuccessful. The Democratic nominee was clearly the more qualified candidate with a long political career, successful law practice, and experience as First Lady of the United States. Trump, the Republican candidate, has no political background, and his resume lacks credentials typically fit for the White House. D. Watkins, an Editor-at-Large for Salon and a professor at the University of Baltimore, suggests, “Donald Trump may be the most unqualified person to ever run for office in America.”⁵ Now he may be the most unqualified person to ever win. If hard work truly does pay off, Clinton should have won. She worked her whole life gaining political and practical experience to make her fit to be president. Logically, the person fit for the job and with the most relevant experience should win. This election tells us something different.

Marie Henein, a successful legal partner with Henein Hutchison, suggests that while we may live in what we think is a progressive society, society still struggles with women in positions of power.⁶ When women attempt to reach these positions of power, society and the media react with a negative lens. Instead of highlighting Hillary Clinton’s remarkable career accomplishments, media constantly shifted focus to her “nasty” demeanour and her wardrobe. While considering a potential president of the United States, are we seriously worrying about where her pantsuits are made? The election results are disappointing and continue to deliver a disheartening message to women: the glass ceiling is not going to be broken any time soon.

America demanded change and had the chance to inflict it by electing the first female president. Instead, they chose wild media antics, racism, xenophobia and bigotry. What this leaves women with is the sad reality that America is more sexist than racist; but unfortunately it is both.⁷ As women, we will continue to struggle moving forward to shatter that resilient glass ceiling. Hopefully one day in the near future we will, so that future generations can grow up truly believing women can be anything they desire; even president of the United States. Until then, as Henein so eloquently states, “You can hold office, just not the highest one. You can succeed, just not too much. I’m going to say it; she lost because she is a woman. If she was a man, she would be president-elect today. Plain and simple.”⁸

Still hoping one day the ceiling will shatter,

The Dominion

 

 

¹ “Presidential Poll Tracker” (8 November 2016), CBC News, online: <www.cbc.ca/news2/interactives/uspolltracker/>.

² Chris Cillizza, "One of Hillary Clinton’s top aides nailed exactly why she lost”, The Washington Post. (14 November 2016), online: <www.washingtonpost.com/news/the-fix/wp/2016/11/14/one-of-hillary-clintons-top-aides-nailed-exactly-why-she-lost/>.

³ “Why did Hillary Clinton lose? Her top opinion researchers answers” (14 November 2016), CBS News, online: <www.cbsnews.com/news/why-did-hillary-clinton-lose-her-top-opinion-researcher-answers/>.

⁴ 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/>. 

⁵ D Watkins, “Is America more racist, or more sexist? Admittedly, it’s a tough call” Salon. (30 October 2016), online: <www.salon.com/2016/10/30/is-america-more-racist-or-more-sexist-admittedly-its-a-tough-call/>.

⁶ Henein, supra note 4.

⁷ Watkins, supra note 5.

⁸ Henein, supra note 4.

#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.

The Women of Star Wars

Star Wars: Episode VII - The Force Awakens, which opened on December 18, 2015, was everything that fans of the saga had hoped for. It was action-packed, caught us up on what our favorite heroes had been up to for the past 30 years, and introduced hope that balance may yet be restored in the galaxy. This hope came in the form of Rey, a young woman scavenger living on Jakku. After a chance encounter with an AWOL stormtrooper named Finn who hopes to join the Resistance against the evil First Order which he previously served, Rey becomes involved in a mission to track down the last Jedi, Luke Skywalker. Along the way Rey discovers that the Force is with her, making Rey the new hope to rise up against the First Order alongside the Resistance. On her journey she meets Han Solo, Chewbacca, some new heroes, and General Leia Organa who leads the Resistance.

This film was praised for its use of a strong female lead, who wore a functional outfit, and “whose central purpose was not to be a love interest”.[1] Throughout the movie Finn makes attempts to save Rey, only to find that she is a superior fighter and can artfully escape dire situations. In fact, it is Rey who saves Finn’s life from a rathtar (space monster). Another refreshing fact of Episode VII in comparison to the earlier Episodes is that there are multiple important roles played by women. General Leia commands the Resistance, Captain Phasma is a high-ranking stormtrooper, and Maz Kanata fills the role of a wise mentor similar to Yoda. Why is this a big deal? As explained by Jake Minton, “of all characters who spoke at least one word in the top 100 movies [in 2014], only 28% were women…. 26% of all female characters that appeared in the top movies were fully or partially nude at some point, only 9% of the guys.”[2] The statistics show that women tend to receive far less screen time than men, and that much of the screen time they do receive is for a sexual purpose, rather than to advance the storyline.  

While Rey is not the first strong female hero in a film, one fails to think of another movie franchise which has successfully replaced a traditionally male role with a female lead. For example, Star Trek: Voyager, which casted a female Captain, performed poorly compared to Star Trek’s original series (Captain Kirk), or Star Trek: the Next Generation (Captain Picard).

Perhaps the successful introduction of a female lead was fostered by the use of a strong female character in the first Star Wars film, Episode IV: A New Hope. In A New Hope, Princess Leia is not only a Diplomat but also a member of the Rebels who hope to take down the evil Galactic Empire. She takes great risk to send blueprints of the Deathstar to the Rebels, and is tortured and mind-probed by the Imperials for the whereabouts of the Rebel base. She withstands it all, talking only when the alternative is having her home planet destroyed, and still she gives false information. Leia is unimpressed by Han Solo’s efforts to woo her, although he wins her over in the subsequent Episodes.

Despite the strong role played by Leia in Episode IV, critics note that her role was reduced to being the love interest in the next two Episodes, and that Leia was the sole female to have a significant role in those movies.[3] In Episodes I - III Padmé Amidala was the female co-star who filled an important role within her planet and galaxy’s government, first as Queen of Naboo and then as Senator in the Galactic Senate. Unfortunately she was quickly shifted to a role of love interest/damsel in distress. But, due to space constraints of blogging, and the general preference of all Star Wars fans to gloss over Episodes I, II and III, that is all we will say about Padmé.

Instead of comparing Episode IV to Episode VII in order to call out the portrayal of women in the earlier film for being dismal, I find it more appropriate to consider each film in the context of the time in which it was made. To have a female not only in a position of power within government, but to also show her as competent in combat and capable of withstanding torture against Darth Vader himself, is admittedly impressive for a film released in 1977. In Episode VI (1983), Leia attempts a dangerous and brave rescue mission in hopes of saving her love, Han Solo. He does not chastise her for risking her “pretty little head” to save him, and although Leia is forced to adorn a gold bikini while enslaved by Jabba the Hutt, she ultimately kills her captor with the chains he had used to bind her.

However, despite these positive undertones in relation to the portrayal of women via Princess Leia, Episode IV does not pass the Bechdel test. The Bechdel test analyzes women’s involvement in films by asking: 1) are there two female characters with names, 2) do they speak to each other, and 3) do they talk about something other than a man?[4] Despite failing this very low threshold for meaningful women’s involvement, Princess Leia was a heroine in the inaugural film, and perhaps it was this demonstration of female competency that resulted in fanboys and fangirls everywhere embracing Rey as the lead in the newest film!    

[1]http://www.firstpost.com/living/the-feminism-is-strong-with-this-one-star-wars-the-force-awakens-reinforces-gender-balance-in-pop-culture-2568062.html

[2] http://tedxtalks.ted.com/video/Men-Children-The-Final-Frontier;search%3Afeminism

[3] Supra note 1.

[4] http://bechdeltest.com/

What the Jian Ghomeshi Trial Says About Our Society and the Progress Still Needed

Next month Justice Horkins will deliver his decision as to whether Jian Ghomeshi has been proven guilty beyond a reasonable doubt of four counts of sexual assault as well as one count of overcoming resistance by choking. This trial dealt with allegations made by three complainants, and another trial is scheduled later this year to address allegations made by other women. Media discourse on the trial demonstrated that when an accused person is tried for sexual assault, society places the sexual assault victims on trial as well.

The witnesses in the Ghomeshi trial have been disbelieved for not fitting into the box which society has defined for victims. The women did not describe the event as one which involved tears and attempts to fight off their alleged attacker. They did not flee from the scene of the crime and run straight to police. They did not faint at the thought of having to encounter their attacker again; in fact, all complainants reached out to Ghomeshi after the alleged sexual assaults. Upon hearing this inconceivable post-incident conduct, many concluded that Ghomeshi was falsely accused, because it makes no sense for a victim to behave in any other way than a damsel in distress.

A common thread between the three complainants who testified is that they each tried to normalize the assault immediately after it had happened. Witness 1 wondered if the first time he pulled her hair was intentional, as she had just finished an enjoyable date with Ghomeshi who had been charming and charismatic. The second woman, Lucy DeCoutere, “didn’t want to be rude” after Ghomeshi pulled her hair and slapped her, so she continued the evening activities with him, and saw him on several more occasions.[1] She did not report what had occurred because “I always thought assault meant you were beaten to pieces. I didn’t think this qualified.”[2] Finally, witness 3 continued the trend of blaming herself for seeing Ghomeshi after the alleged assault against her. She stated that the incident was out of character for him, and that she typically gives people second, third, and fourth chances.[3] Like DeCoutere, witness 3 did not know that the incident would count as sexual assault or that there was any criminal act against which to press charges.[4]

Marie Henein, defence counsel for Ghomeshi, used witness 1’s post-attack correspondence with Ghomeshi to destroy her credibility. This is an understandable legal tactic because witness 1 falsely stated in her evidence that she did not communicate with Ghomeshi after the assault.[5] However, DeCoutere made no such statement, so why were her emails and letters to Ghomeshi displayed and read to the Court? The correspondence revealed that DeCoutere sought Ghomeshi out after the alleged offence and that she tried to initiate sexual contact the following day. Despite DeCoutere’s explanation of trying to normalize what had occurred, and that at the time she felt that “I put myself in this place”, Henein’s cross-examination had the effect of turning many into disbelievers of DeCoutere’s evidence.[6] If this post-offence conduct were not enough to cast doubt on DeCoutere, Henein continued by highlighting DeCoutere’s humorous tweets and interviews on the subject of her alleged assault. Henein suggested that the assault never occurred, which is odd, given that she did not draw out any evidence to contradict DeCoutere’s version of the events in question.[7]

DeCoutere explained in court that just like an intimate relationship where a person still loves the person who physically abuses them, or stays in an abusive relationship, sexual assault victims may respond in a variety of ways.[8] Continued contact, referencing the event in a joking way, or expressing excitement about testifying are examples of possible responses, and DeCoutere has been chastised for all of the above.

Witness 3 had her credibility questioned because she did not inform police that she went out with Ghomeshi subsequently, which involved further sexual contact. She explained that she did not think it was relevant and that it was also embarrassing. Why witness 3 left out the “embarrassing” fact that she later performed manual stimulation on Ghomeshi reflects what women are taught about sexual activity in our current society: sexual promiscuity is not ladylike behaviour. Perhaps it was the witness’s concern about being perceived as promiscuous that caused her nondisclosure to police, or perhaps it can be attributed to rape culture, wherein a victim is expected to flee an attacker and to know better than spending further time with the man who traumatized her.

Whether Jian Ghomeshi is legally innocent (committed the acts but cannot be proven beyond a reasonable doubt), factually innocent (did not commit the acts alleged), or found guilty of committing the assaults, it can be safely said that our society is guilty of perpetuating rape culture. This trial has demonstrated that the average citizen commenting on the witnesses’ behaviours has neglected to become informed on an issue which plagues our society and disproportionately victimizes women – sexual assault.

Here is a crash course on the elements of sexual assault: non-consensual + application of force (touching another person in a non-trivial, non-trifling way) or threat of force + violation of one’s sexual integrity = sexual assault.

Further requirements such as reporting immediately and giving the attacker the cold shoulder are not realistic for several reasons. One extremely troubling theme in the three victims’ testimony is that they felt ashamed of how they had acted after the assault, and that they did not know that the incident constituted sexual assault. In a country which does not include consent in educating youth on sexual assault, it is unreasonable to place requirements on victims to respond instantly and logically. When society shames female sexual promiscuity and ignores the prevalence of sexual assault, it is inappropriate to place the burden on victims to recognize the full spectrum of assaultive behaviour and to report embarrassing incidents candidly and objectively.

The lesson to be taken from the Ghomeshi trial is that 100 years after women’s enfranchisement, we must continue to fight for equality. We must fight to remove gendered stereotypes of appropriate sexual behaviour, and a pivotal step in this direction is education. Ontario is the first province to introduce consent into their new sex-education curriculum for adolescents, which was implemented this year.[9] All 61 school boards of Alberta approve of introducing consent into the curriculum, and hope that the Alberta government will implement mandatory instruction.[10] Until education is delivered to youth, boys and girls will continue to receive inaccurate information from media and their peers, which further perpetuates harmful gendered stereotypes about sexual activity and sexual assault. As a result, victims will likely wonder what they did wrong to encourage the assault, and will refrain from sharing their experience for fear of how they will be perceived. Eliminating rape culture is the battle of this generation, similar to the fight for suffrage 100 years ago. Education is a promising step to this end.   

 

[1]http://www.macleans.ca/news/ghomeshi-trial-day-3-the-scarlet-string-bikini-and-the-new-shame/

[2]http://www.macleans.ca/news/ghomeshi-trial-day-3-the-scarlet-string-bikini-and-the-new-shame/

[3]http://www.macleans.ca/news/ghomeshi-day-5-a-jenga-tower-implosion/

[4]http://www.macleans.ca/news/ghomeshi-day-5-a-jenga-tower-implosion/

[5]http://www.macleans.ca/news/ghomeshi-day-2-an-email-bombshell-and-sidestepping-consent/

[6]http://www.macleans.ca/news/ghomeshi-trial-day-3-the-scarlet-string-bikini-and-the-new-shame/

[8]http://www.macleans.ca/news/canada/ghomeshi-day-4-real-conversation-or-distracting-chatter/

[7]http://www.macleans.ca/news/canada/ghomeshi-day-4-real-conversation-or-distracting-chatter/

[9]https://www.ontario.ca/page/sex-education-ontario

[10]http://www.cbc.ca/news/canada/edmonton/alberta-school-boards-want-consent-added-to-sex-education-curriculum-1.3324110