supreme court of Canada

LawNews

Free trade is a pet topic of protesters across North America, and with good cause. Those in favor of it point to the reduction of trade barriers as improving economies that allow for greater access to inexpensive goods. Those against it point out that it destroys local businesses and industries as well as mom and pop shops loved by communities who abandon them in favor of cheaper goods and services. Though Canada seems very much in favor of free trade, many of our industries such as dairy rely on protectionist policies imposed by the government to keep them alive.

The notion of free trade has been in the news lately not just because of the Orange Misogynist’s blathering about the North American Free Trade Agreement (NAFTA) between the US, Canada, and Mexico, but also with regards to a recent Supreme Court decision on interprovincial trade. Before I go into the decision itself, we must discuss how the case got to the Supreme Court.

Gerard Comeau is a resident of New Brunswick who lives not far from the border to Quebec. In October 2012, he drove across the border into our fair province and stocked up on liquor from three different stores. Booze, as it turns out, is pricier in New Brunswick and Comeau decided he would save some money by buying elsewhere.

There was, however, a problem.

New Brunswick’s Liquor Control Act has a limit on how much alcohol you can buy out of province. Their law makes it an offense to “have or keep liquor” above a certain amount that was purchased from a Canadian source other than the New Brunswick Liquor Corporation, the New Brunswick equivalent of the Société des Alcools du Québec (SAQ).

The RCMP in the New Brunswick town on the border were concerned about the number of residents often going to liquor stores in Quebec in breach of the law. With the help of their counterparts in Quebec, they started keeping track of New Brunswickans doing so.

One of these people was Gerard Comeau.

On his way back from an October 2012 trip to buy booze in Quebec, he was stopped by the RCMP. The cops found large quantities of beer and spirits in excess of what the law allowed. Comeau was charged under the New Brunswick Liquor Control Act and was issued a fine of two hundred and forty dollars plus administrative fees. Comeau in turn decided to fight it, arguing that the provision of the Liquor Code was unconstitutional.

The Constitution Act of 1867 was written with a lot of considerations in mind. Before confederation, Canada was just a bunch of separate British colonies. As separate colonies they all had powers to impose tariffs on goods brought into one colony from another.

The country was being formed as the United States was going through the Civil War and there were concerns about the economic effects of the war on the new Dominion of Canada. One of the ways the fathers of confederation sought to solve this is by adding section 121 to the constitution. It is on the basis of this provision that Gerard Comeau decided to fight his fine.

Section 121 of the Constitution Act of 1867 says:

“All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.”

Comeau and his legal team argued that the penal provision of the Liquor Control Act under which he was charged violates this provision of the constitution. To back up this argument, a historian was brought in to discuss why section 121 was included in the Constitution Act of 1867, formerly known as the British North America Act.

With the help of this historian who acted as expert for the defense, Comeau argued that section 121 was basically a free trade provision and therefore “no barriers can be erected to impede the passage of goods across provincial boundaries”. The trial judge agreed and acquitted him. The Crown appealed but the appeal was dismissed, so the Attorney General of New Brunswick as well as the Attorney Generals across Canada appealed to the Supreme Court.

The question the Supreme Court was charged with was whether section 121 of Constitution Act of 1867 bars any impediment to interprovincial commerce.

The Supreme Court said no.

In their decision they point out that to take the aforementioned interpretation of section 121 of the Constitution Act of 1867 is to ignore the years of legal precedents created by the courts as they were charged with interpreting the law. Doing so would not only undermine the Canadian legal system but effectively strip federal and provincial powers of their ability to legislate trade in Canada.

Aside from Quebec which relies in part on the Civil Code, most provinces in Canada rely on past legal decisions in order to interpret current ones. The higher the court, the more binding the decision on lower courts, a concept called stare decisis or “stand by things decided”.

The court went on to point out that past legal decisions on the subject point to section 121 only forbidding laws that explicitly impose tariffs on goods moving between provinces but that it should not be interpreted as to ban legislative powers from imposing laws that have the incidental effect of limiting interprovincial commerce.

Critics of the decision were hoping the Supreme Court would take a tougher stance in favor of protecting Canadian beer from the effects of free trade. Others think that this provision will make section 121 of the Constitution increasingly obsolete.

That said, Comeau is obviously going to have to pay his fine, but I imagine it pales in comparison to his legal fees.

* Featured image by Allison Caterall via Flickr Creative Commons

LawNews

One of the ways to persecute is to rob people of their history. This was done by male historians seeking to undervalue the contributions of women. It was done by white historians seeking to confirm racist ideologies.

Now a group of all white judges has entrenched the power of a body created by a white majority government to rob the victims of residential schools of their history. On October 6, 2017 the Supreme Court of Canada made it legal for the authorities in charge of compensating the victims of the residential school system to destroy the records of the abuse after a given delay.

Before we get into why the highest court in Canada came to this decision, we need to talk about residential schools.

Residential schools refer to a system of schools established by the Canadian government and run by Christian religious groups in an attempt to assimilate the Native population into Canadian society. They operated in Canada from the late 1860s to the 1990s. Despite remarks by such insensitive racist imbeciles as Senator Lynn Beyak, the schools were a nightmare for the children and their families, the effects of which are still felt to this day.

During this period, children were ripped from their parents and forced to live at these schools where they were beaten, tortured, and raped in an attempt to wipe out their language, culture, and history. Parents who refused to give up their children were threatened with starvation. Survivor Ronnie Otter’s parents were told their winter rations would be withheld if they didn’t send their kids away.

Many of the victims who went as children are still haunted by memories of being forced into oral and anal sex, scrubbed raw with rough brushes, and fed food more fit for livestock. Though they were promised good schooling, they were given a fifth grade education and trained to do manual labour such as agriculture, housework, and woodworking, not unlike in the Bantu education system of apartheid South Africa.

In 2008, the Canadian government under Stephen Harper issued a much needed formal apology to the victims and their families. In the apology the Canadian government formally recognized that:

“…this policy of assimilation was wrong, has caused great harm, and has no place in our country… ”

It should be noted however that while Canada’s Anglican, Presbyterian, and United Churches have apologized for their role in what happened to the eighty thousand survivors and their families, the Catholic Church has not. The Canadian Conference of Catholic Bishops claims that the independence of individual dioceses and their bishops absolves them of any responsibility. It is both ironic and unfortunate that the authorities of a religion so dependent on symbolism are incapable of providing even a symbolic show of remorse so desperately needed by people tortured in their name.

That said, let’s talk about how and why the Supreme Court came to their decision.

The records referred to in the Supreme Court’s decision are specifically those from the Independent Assessment Process (IAP) resulting from the 2006 Indian Residential Schools Settlement Agreement.

The Agreement was the result of a consensus reached between the legal representatives of survivors, the Churches involved, the Assembly of First Nations and other aboriginal organizations and the Government of Canada on how to address the legacy of residential schools. It was brought on by numerous class action lawsuits against the Canadian government by the victims of residential schools seeking compensation and recognition for the persecution they endured.

Among the things agreed upon was a Common Experience Payment for all eligible survivors of the residential schools, a form of financial compensation for the victims of abuse at the hands of the government and the Churches acting in its name. Eligibility was determined by the Independent Assessment Process which entailed survivors disclosing extremely sensitive information about the abuse they suffered and the consequences therein. The information also included medical reports, hearing transcripts, and reasons for decisions in each case, all of which are held by the Government of Canada. The overall goal was to determine the credibility of each claimant and the harm they suffered.

As per the Supreme Court’s ruling, these records can be destroyed after fifteen years, though individuals can apply to have the information in their files preserved. The Court decided on destruction of the records after a certain delay for a few reasons, the primary one being that of confidentiality.

The Supreme Court decided that all participants in the Independent Assessment Process agreed on destruction of the information as part of the high degree of confidentiality of the process, the same way one would for a contract. Confidentiality was agreed upon in part to allow the victims to retain ownership of their stories and the horror of what they endured while maintaining their privacy. It was also to ensure the participation of religious organizations that would not have done so otherwise despite their active participation in the abuse.

The Court also stated that the Truth and Reconciliation Commission established as part of the 2006 Indian Residential Schools Settlement Agreement was for “creating a complete historical record of the residential schools system, and promoting awareness and public education of Canadians about the residential schools system and its impacts”. The court said that those who participated in the IAP were welcome to share their experiences with the Truth and Reconciliation Commission and that the confidentiality rules ensured them that choice.

The decision appears to be based on preserving the dignity of Residential School survivors, but it has a flipside of destroying records of abuse that implicate the government and religious groups that should be held to account for what they did. Though a survivor may want to keep their experience confidential, that can change in fifteen or sixteen years whether or not they apply to preserve the records. At the end of the day, the only people this decision protects are the abusers and the people who allowed it by destroying the evidence.

CultureSex

As usual, sex was a popular topic in the news this year. From changes in laws across the globe to favor same-sex marriage and the safety of sex workers to watching a young woman swing naked on a wrecking ball, it was impossible to escape the controversial and polarizing nature of sex in our culture.

Global Spread of Marriage Equality

One of the biggest stories of the year was the continuing spread of legal same-sex marriage. According to the New York Times, the global population with access to marriage equality doubled in 2013, which was largely due to progress in North and South America. Eight more of the United States passed laws on marriage equality which are now recognized by the Federal Government thanks to a Supreme Court decision this summer, while Uruguay and Brazil voted to legalize same-sex marriage earlier this year.

France became the largest European country to do so as well, and New Zealand brought same-sex marriage to the Southern Hemisphere. This brings the total global population with access to equalize marriage rights to approximately 585 million, which sounds pretty high until you realize it still only represents about 8% of people across the entire world. Here’s to hoping we double or even triple that number in the coming year.

Challenging Canada’s Prostitution Laws

Another of 2013’s biggest stories came just one week before the end the year when the Supreme Court of Canada voted unanimously to strike down three of Canada’s current laws pertaining to prostitution. While it is not currently a crime in Canada to sell sex for money, there are laws prohibiting living on the profits of prostitution, communicating in public with clients, and using a private residence such as a brothel for the location of the act.

These three laws were challenged by three women with experience in the sex trade, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott. They argued that the current laws prevented them from safely conducting their business, which violates certain rights and freedoms set down in the Charter. While the Ontario Court of Appeal later upheld the law about communicating about prostitution in public, they sided with the Supreme Court regarding the other two laws, agreeing that they were too broad.

The Supreme Court gave Parliament a deadline of one year to create new laws, if they so desire. It will be interesting to see how far they go in protecting the safety of sex workers, a story that I will continue to cover in the coming year.

Miley Cyrus Twerks Her Way into the Spotlight

mileyMuch has already been written this year about the raunchification of Miley Cyrus and her “all grown up” behavior shift from squeaky clean tween idol to lewd tongue-wagging twerker. One of her most memorable moments of the year came when she teamed forces with one of this year’s other prime provocateurs, Robin Thicke, singer of ‘Blurred Lines’ aka that disgustingly ubiquitous song you hope you never have to hear again.

Their little performance on the MTV Video Awards definitely earns top billing for most controversial dirty dance moves, as Miley stripped down to a barely there nude bikini and violated that poor foam finger, causing a media storm in only the way our little Wrecking Ball can.  Will she find newer, more disgusting ways to shock us in 2014? Only time will tell…

No One Wants to Envision Rob Ford Getting Enough to Eat

rob_fordFinally, I’ll close with the little oral sex story that could, and in fact did, make its way around the world’s gossip columns and nightly news satire shows. Toronto’s bumbling mayor extraordinaire Rob Ford made a lot of strange comments that were scrutinized by media outlets everywhere, none as shocking as his response to allegations that he was sleeping with one of his female staffers. Ford said to a room full of reporters that he never wanted to eat her pussy, since he was happily married and “got enough to eat at home.”

I guess ultimately I should feel happy for Mrs. Ford, if indeed these are the arrangements of their sex life, since every woman should get enough at home, but the shock value of his candor mixed with the mental picture of Rob Ford doing anything in the bedroom was enough to make me shudder. The main question on everyone’s minds is how much lower can he fall in 2014?

News

Mohamed Harkat’s hearing last week at the Supreme Court of Canada wasn’t just held behind closed doors, but was, for the first time in the 138 year history of the Court, held in a secret location known only to those directly involved to the proceedings. The reason given for this unprecedented, undemocratic and arguably unconstitutional measure: national security!

Harkat is the latest refugee to be subjected to the security certificate system introduced by the Liberal government and used extensively by the Harper regime since they came to power in 2006. He has been under house arrest for over 11 years now, fighting the government’s attempts to deport him in court.

The crown alleges that he was a member of an Al-Qaeda sleeper cell and that the evidence against him is very strong. The trouble is, in the security certificate process, CISIS, other intelligence agencies and the Minister of Immigration are not obliged to reveal the details of their case, only a summary of it. As Mr. Harkat’s lawyers argue, this violates Mr. Harkat’s rights under the Charter (specifically the right to fair trial in section 11(d) and section 6).

What’s at stake here is much greater than the fate of one man, however tragic that fate might be. At issue are fundamental questions of Canadian justice and common law.

According to the crown’s position, there is a different and lower standard of proof being applied against Mr. Harkat than the normal one applied to Canadian citizens. As a result, what would typically be inadmissible evidence in court because it was obtained illegally (say by torture) is acceptable in these security certificate trials. In 2007, the Supreme Court actually ruled against this type of evidence in the Charkaoui case.

Harper’s amendments to the system are hardly reassuring. The so called “Special Advocates” who will be appointed by the State to test the quality of evidence against the accused are constrained by the rules surrounding this type of hearing which prevent them from even sharing what they have seen with their clients.

If the tragic case of Maher Arar has taught us anything, it is that government ministers cannot be trusted to make the right decision in cases involving deportations and Security Certificates. It is absolutely imperative that precautions be taken to ensure that their judgments be made accountable to Parliament and the public by eliminating secret trials.

The Harper government must comply with the recommendations of Amnesty International and the Special Senate Committee on the Anti-Terrorism Act and repeal the provisions in Immigration Refugee Protection Act that enable ministers to deport non-citizens to countries where they run the risk of being tortured on the basis of obscure evidence.