Interdependence v. Sovereignty

Interdependence v. Sovereignty

                The government of Canada set up a pilot program to determine the effects of granting exclusive commercial fishing rights to a handful of bands on its coast for a period of 24 hours. Several licensed commercial fishers considered this to be racial discrimination, protested it by fishing in the exclusive rights zone and ended up convicted for it. 

The issue is whether or not the law that convicted them is in fact discriminatory and consequently unconstitutional under s. 15 of the Charter; the court reasoned that while the law may be discriminatory under s. 15(1), the clause in s. 15(2) negates any discrimination upon the basis of amelioration. While the majority concedes that the legislation may end up having no actual effect on the bands, it argues that it is enough to have an intent that is rationally connected. It consequently sees the idea of providing commercial fishing rights to select bands as a rational way to attempt to improve economic conditions within those bands and thinks the law should be upheld by s.15(2) on those grounds.

In blunt terms, I think the argument is specious; I don’t even think that the Crown really took it seriously so much as it used it as a cynical ploy to keep the law in place in the face of a Charter challenge, so I’m going to put it aside as disingenuous. The dissenting opinion pointed out that commercial fishing is already common by band members in these areas, that band members pay no attention to resource management laws, that individuals that receive the licenses are under no obligation to share profits with the bands themselves and that 24-hour exclusive catches are simply going to move fish caught from one commercial fisher to another based on characteristics of race. An informed analysis that takes all of the actual facts into consideration quickly denies any rational connection between policy and expected effect. I would have used s. 1 to argue that the goal of reducing poaching and more effectively enforcing resource global management is a pressing and substantial objective (relative to declining salmon stocks) that falls to the authority of the local government, as I think that is the real issue here and that it would have set a very useful precedent, but I recognize that this is probably a very novel use of the concept of “democratic” that incorporates very left-wing concepts of democracy and shared ownership of resources that are rather foreign to Canada’s history of liberalism and, on the surface, is sort of problematic to its history of colonialism. My lawyering skills are clearly not nearly as pragmatic as the Crown’s. However, I would then deny that there’s a rational connection between the legislation and that end and send the government back to the drawing board for ways to decrease salmon poaching amongst the bands on the coast that would not discriminate against others and might actually work. Yet, how did we get to the point where salmon poaching is a serious problem?

My understanding is that the various numbered treaties that were signed in these areas allowed for commercial hunting and fishing rights but that these were extinguished by a number of transfer agreements put in force by the four westernmost provincial governments as housecleaning to the process of them joining confederation. While the primary concern of the various nations that signed the various treaties was always maintaining hunting rights for the purposes of subsistence, and any interpretation of the treaties must uphold these subsistence rights absolutely, these initial treaties were largely signed in an era where the management of resources was a less pressing or overlooked concern. Today, we understand that it is possible to overhunt and overfish with disastrous consequences and that it is imperative that we have some level of government regulating this behaviour, lest we wake up one day to find out that we have no more fish left to catch. Unfortunately, however, the transfer agreements were legislated into existence without any kind of consultation with any of these nations. From an aboriginal perspective, then, it is reasonable to deny the force of the legislation and view this restriction on commercial hunting and fishing as lacking in democratic legitimacy. The restrictions are consequently simply not acknowledged; hence, we have a poaching problem.

Regardless of the motives underlying the initial legislation, and they may have been less than just, this is currently an attitude that is really unsustainable in the face of legitimate resource issues. This is a nose being disfigured to spite a face, while the head is tilting out towards a windmill; idioms aside, it is simply not sustainable behaviour. Let us forget the history for a moment and just deal with the present. Consider the following thought experiment: suppose we could snap our fingers and instantly create aboriginal self-governance. Would it not enact resource management laws to attempt to prevent overfishing? On what basis other than the same science used to enact the federal ones? So, what logic is there in ignoring the laws on the basis of sovereignty when the enacted legislation will inevitably be virtually identical? In the circumstance of resource management, focusing on the sovereign rights of nations to manage things independently at a local level has the potential to be rather myopic; however, this also applies to nation-states, which should be working together to regulate these resources at a global level, through bodies such as the United Nations and with the aid of peer-reviewed science. Fisheries management is a global responsibility that must be based on that science, not a cultural issue that can be reduced to a set of religious beliefs or ancient customs. So, I think the focus here on sovereignty is really quite backwards; the more pressing concern is global interdependence. 

I’m consequently not seeing any valid reason why aboriginals should expect to be exempt from this scientific resource management regime. So much as this is an issue of extinguished treaty rights or ameliorative activism, these issues are all secondary to the collective need to regulate resources through objective science. Any self-governing aboriginal state would have to accept this truth; precisely who hands out the licenses seems rather meaningless. Nor do I see any need or justification for special commercial licenses for one race or another. Trying to causally tie these things together outside of the scope of a regular old commercial fishing license just needlessly overcomplicates – but it’s necessary to get everybody on the same side, everybody seeing things clearly and everybody acting responsibly before issuing equal licenses and expecting people to respect them becomes a workable approach.

I simply fail to see any causal relationship leading from allowing a 24-hour exclusive catch from time to time to a change in mindset and behaviour. All I can see coming from that is a one-day monopolization of the catch, and a subsequent transfer of wealth from one group of commercial fishers to another. Surely, if we are to be transferring wealth then we can come up with more appropriate targets?  I’d modify the law to make it constitutional, and maybe suggest that if they want to distribute fishing licenses through bands that they do it in a more formal fashion. I’d also suggest consulting with these nations in writing up some new laws, which would give the law the legitimacy it requires to be followed. This would ideally be accompanied by an outreach campaign that explains the importance of resource management and why overfishing has the potential to be catastrophic.

The thing I’m concerned about here is not sovereignty but the possibility of over-fishing to extinction, and I think that neither regulating hunting nor sales will lead to precisely this; that sounds like a recipe for disaster of peculiarly western proportions, one we’ve already seen too many times. If the result of sticking it to the man in Ottawa is the extinction of salmon, that would be a pyrrhic victory for aboriginal rights, indeed. They should be able to hunt for personal use as they please but be restricted in their commercial hunting by the same resource management laws as everybody else – which would certainly be the resource laws in place if they had self-government, anyways, because they would be regulated by the same science. The law might attempt to get to that goal, but is too poorly written and thought out to actually get there. In actuality, it merely discriminates in redistributing wealth from the poor to the poor on base racial terms and consequently needs to be drastically rethought.

LAWS 3504
oct, 2012 

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/intersov.html

misapplying gladue

R. v. Quash

            Bobby Quash suffers from fetal alcohol syndrome, a type of irreversible and untreatable brain damage. In his case, he requires an 'external brain' to function on a day-to-day basis and prevent him from making poor choices.[1] He has a long criminal record that includes a previous statutory rape conviction for having had sexual relations with a twelve year-old child while she was under the influence of alcohol that he had provided for her, and has shown "little remorse for this s. 271 and to some extent blamed the victim and showed disrespect towards females".[2] He was twenty years old at the time. He was noted as a high risk to re-offend by both the LSI-R and STATIC-99 risk assessments and placed into the care of a group home as a condition of his probation.[3] He is being sentenced in this case for a second rape, carried out while breaking that condition, of his aunt by marriage while she was sleeping beside his uncle.

            The judge quotes the Ontario Court of Appeal in R. v. Whiskeyjack, 2008 93 O.R. (3d) 743 in determining the priorities to weigh in sentencing:

The task of the sentencing judge is to weigh the aboriginal offender’s circumstances and his or her interest in rehabilitation or restorative justice with the community’s interest in deterrence, denunciation and the need for social protection.[4]

After doing so, however, he focuses only on deterrence and denunciation, nary mentioning a further word regarding social protection! The primary issue in this case ought not to have been deterrence or denunciation but the safety of the community, and the perpetual threat that the defendant poses to it. In cases of repeat criminal offenders who continue to pose a threat of harm, the collective rights of the community for safety from that harm far outweigh any individual rights that the repeat offender has to personal liberty. That strong defender of individual liberty himself, Mills, would argue that the community has the inalienable right to protect itself from harm – this is his famous harm principle. As the defendant is unable to fully understand his actions or the consequences of them, there is no end to the risk that he poses. The risk will not end with a period of reflection in incarceration, with the help of a social worker, with medication, with education, with a promise to change or by providing him with any other sort of help. In order to protect the community from this risk, there is consequently no solution other than to remove the defendant from it - either through incarceration or by some other means. The pre-sentence report stated this clearly:

                        …without a group home style residence, with a high staff to resident ratio, coupled with an extremely stringent community supervision order, Mr. Quash will continue to put the community at risk for further sexual violence.[5]

            However, the judge focused solely on the issues of deterrence and denunciation, rightly or wrongly arguing that deterrence has a limited role to play in the case and that a mentally handicapped person should not be skewered on a stick and held up as an example for all of the rogue peasants to cower in fear over.[6] Without discussing the social science of the effectiveness (or lack thereof) of deterrence in general, let us put this argument aside as inconsequential in the face of the more pressing issue of the community's right to protect itself. More important is that he then blatantly contradicts the scientific evaluation presented in the pre-sentencing report with some kind of base ideological liberalism in stating "I accept that Mr. Quash wishes to change his life from what it has been".[7] Now, to be fair, the judge does point out that placement in a group home would be ideal but that, as one is not available locally, and the defendant has indicated a desire to change his ways, a lenient sentence is preferable to lengthy incarceration.[8] This all rests on the assumption that rehabilitation is possible if everybody just tries really hard, which in this case is nothing less than the egregiously naive replacement of a solid scientific assessment by a wobbly philosophical assumption. A universe where deductive philosophy overpowers empirical science would be a beautiful one for us logicians to frolic in freely, but, alas, it is not ours; the report clearly states that the defendant does not have the cognitive abilities required to change his life from what it has been and must remain under constant supervision in order to not pose a threat to others.[9] Continuing to entertain the ideological fairy tales of liberalism in the face of hard science will not make anybody safer. Even accepting that the defendant has the ability to state whether he wishes to change or not is completely ignoring the weight of the scientific evidence, and perhaps even good sense as his counsel would not advise him to state otherwise, and should be viewed as bluntly incompetent. He clearly read the report; either he ignored it or he didn't understand it.

            In arguing for a reduced sentence, the court drew on case law to make a number of outlandish arguments that upheld the assumptions of rape culture. The first is that because the defendant did not continue to attempt to rape the victim further by inflicting force after he was pushed off, the assault is somehow less severe than it would have been had he done so.[10] Therefore, the sentence for this less violent rape should be shorter than the slap on the wrist that the more violent rapist received? In case law, two wrongs apparently make a right. The second is that "the aggravating impact of the prior sexual assault is not as significant"[11] because the prior rape was statutory and the difference in mental age was not great, despite the fact that the defendant showed little remorse. This trivialization of rape, and upholding of rape culture, was a strong factor in the lenient sentencing.

            He also makes a mockery of the criminal code by invoking a section (718.2(e)) that states that special attention needs to be drawn to the (socio-economic) circumstances of aboriginal offenders, and follows that up with a number of irrelevant comments about the residential school system. While it may be true that the lingering effects of the residential school system are deeply profound, and a lack of parenting (amongst other socio-economic factors) may be a root cause of crime in some circumstances, it is blatantly clear in this case that the cause of the defendant's recurrent criminality is the defendant's mental handicap, whether the result of abuse suffered by the defendant's mother or not, and not anything else. In the context of this specific case and the perpetual harm that the defendant poses to the community, there's no function in bringing up the topic and certainly no value in upholding the case as an example where leniency should be shown to a repeat offender who has been dealt a very bad hand and deserves another chance; this particular offender is incapable of being rehabilitated, so showing leniency cannot lead to any positive outcome. To the contrary, it can only increase the risk of further harm. The judge has really badly missed the point of this section of the criminal code, and the accusation of incompetence is pertinent on this point as well.

            As the pre-sentence report clearly indicated, no measure short of permanent incarceration in a jail or group home can eliminate the threat that the defendant poses to society.[12] While the ideal may be placement in a guarded group home, if the necessary resources to allow for this are not existent then the rights of the community to protect itself ought to take priority and the defendant, unfortunately, ought to remain humanely incarcerated until such a group home can be built.

LAWS 3504,

Sept , 2012

Also note that, unfortunately, Bobby Quash was, in fact, convicted of rape a third time.

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[1] [30]

[2] [26]

[3] [25]

[4] [52]

[5] [28]

[6] [81]

[7] [82]

[8] [75-76]

[9] [28]

[10] [44-47]

[11] [50]

[12] [28]

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/gladuegonewrong.html

some brief arguments against property

1.      What are the justifications for private property?  What are the critiques? 

      One of the presented justifications for private property is the idea that market theory has created great wealth in western societies and the reasons for the generation of this great wealth lie in upholding property rights. The text responds by pointing out that the authoritarian regimes that dominated the "communist" world were closer to a kind of feudalism than a kind of socialism, that behavioural economics has successfully debunked many of the assumptions of market theory and that we ought not to be driven solely by the desire to maximize productivity because that might blind us to greater moral questions, such as inequality. However, I feel it is more prudent to actually question the premise. Western economies are, in fact, characterized by their absurd levels of inequality. A look around me would observe great wealth and abundance concentrated in the hands of a few while the masses struggle to survive amidst great distributive inefficiency and resource squandering, and I would assign property rights as the cause of that suffering. Of what value is efficiency in production if it creates inefficiency in distribution? This is self-defeating! Further, this great wealth we observe is not the result of exchange over free markets at all but of coercion, theft and violent exploitation. These violent methods of resource domination are premised solely upon the idea of ownership.  

      Nonetheless, the critique from behavioural economics is substantial. If human beings are not inherently rational and make decisions based on a completely different set of criteria then the assumptions of market economics clearly need to be fully reconsidered, and this applies equally as well to Marxist economics as it does to classical economics. However, this ought not to be the extent of the criticism against classical economics. Classical economics is full of causal assertions that follow not from empirical studies but from stated assumptions; it is a type of analytic philosophy, not a type of empirical science. Yet, it must become an empirical science if it is to be expected to make useful predictions. Without that conversion, what market theory could only ever present to us is a utopian vision of an ideal society, where complex, observable phenomena follow over-simplified, linear mathematical equations; market economies do not exist in real life, but only as ideal abstractions. The imperfect realization of theoretical markets is most powerfully demonstrated by the ubiquity of corruption within capitalism, which is something that Keynesians have corrected classical theory for, and is something that any discussion of market theory, however cursory, should never overlook. The idea of competition, itself, while central to market theory, is often less desirable for producers than collusion is, leading unregulated markets to collapse in on themselves in favour of effective monopolies. It follows that a society built on free markets and unregulated private property rights could only ever lead to exploitative corporatism and immense levels of inequality. This is, however, not truly an argument for the abolition of property rights but an explanation that property rights must at least be regulated and restricted.

      A second argument put forth in favour of private property comes from utilitarianism. It argues that as wealth maximization is attached to happiness, and property is a type of wealth, private property should be protected in order to maximize happiness. However, the text points out that this is not a very stable application of utilitarianist ideas, as it could be argued equally convincingly (and arguably much more convincingly) that wealth redistribution would maximize happiness for the highest number of people. Bentham's response was that the abolition of private property would have a negative effect on industry. Whether correct or not, that seems to be an admission that his approach is incomplete and that things other than maximizing happiness are also important. What Bentham really seems to be upholding in his response is the idea that class hierarchy is more fundamental than the maximization of happiness, and, in that, he is really breaking with his own theory; Bentham's response about industry should really not be considered relevant in the context of what utilitarianism actually says about private property. Ziff attempts to sneak out of this by stating that utilitarianism is not a convincing argument in favour of private property; indeed, it's a rather convincing argument against it, in principle, especially in a society with stark pre-existing disparities in wealth. Under such pre-existing conditions, any argument in favour of private property is necessarily converted into an argument for wealth redistribution and for precisely the reasons articulated for private property; property is freedom, property is theft.

      A third argument is the idea that private property increases privacy, but this is really just an assumption (there is no reason we can't have privacy without private property) and is not substantial enough to seriously contemplate. Likewise, the argument for property in terms of power is head-scratching. Power means conflict. So, who wants to argue for a system in terms of power? I'd be more likely to suggest that private property is best abolished because it creates conflict through power struggles. Yet, the text brings up an interesting example with homeless people. Might they be homeless in the first place because of the ability to charge rent through private property? Might the abolition of rent not be a better solution than creating more and more competition and conflict?

       The arguments about personhood and self-identity are most convincing, but they cannot be discussed coherently in an environment where there is no separation of private and personal property.

LAWS 2201,

Mar 2013

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/property.html

should justice be based on rules or circumstances?

         The issue of a safe avenue of escape while under duress is a tricky one, and the case explored it in what is perhaps even too much depth. Over-analysis is a thing that is possible in law. Ultimately, at some point, a jury must determine whether the accused made the correct decision or not, based on available evidence; at the very least, an attempt to escape is always possible in all circumstances, regardless of how dangerous that attempt may be, so what the jury actually has to decide is if the accused correctly determined if one of the always existing avenues is safe, not if a safe avenue existed. This must be determined probabilistically, not in binary; any escape attempt always has a risk. Yet, "safe" implies certainty. It is consequently impossible to determine if an escape route is "safe" or not; the entire concept of a "safe avenue of escape" is entirely incoherent. What can be determined is only whether the hostage made an acceptable attempt at escape or not, based on the approximated probability of escaping safely, and this is necessarily a fully subjective calculation because it depends entirely on the hostage's perception of what the probability of escaping safely actually was. Further, if the issue is to be abstracted to its fullest generality, the question of whether the avenue of escape is safe is certainly not always the most important one to consider in determining whether the accused was restricted in their behaviour or not. In order for a balanced decision to be made, this available evidence needs to include both objective and subjective criteria regarding not just the ability to escape but also the consequences of it, rather than be restricted to the likelihood of safe escape itself from one or the other perspectives, and the weighting of each needs to be specific to each specific case at hand. For this reason, it is both difficult and perilous to try and construct any kind of legally binding precedent that forces the jury to focus on one or the other with primacy; the problems associated with an individual committing a crime under duress present a prime example of the inefficacy of a rule-based legal system and a strong argument in favour of a circumstance-based system.

Facts

            In the case at hand, the defendant was brought at gunpoint to a friend's apartment, where he was ordered to ring the buzzer for the purposes of allowing the gunman entry. Entry was obtained. The gunman then shot the friend non-fatally, but was never apprehended. The defendant, however, turned himself in to police and ended up charged with and eventually convicted of aggravated assault, as a party to the crime.[1] His appeal in the case has to do with whether or not the court correctly explained the defence of duress to the jury.[2] The ruling of the Supreme Court in this case actually changed the nature of the defence of duress and ordered a new trial based on that new definition, so the question of whether the court correctly explained the defence is not directly relevant in the case.[3] Nor does the case attempt to determine if there was an avenue of escape available to the defendant or whether or not he took it, or even to clarify what that means, but only states that duress is not a valid defence if an avenue of escape is possible.[4]

Issue, Decision, Analysis and Conclusions

            While it should be noted that the case redefined existing case law in this area, it cannot be stated that stare decisis was a significant factor in the ruling. It is consequently not useful to refer to existing cases in examining the issue or analyzing the ruling. It is more useful to consider the situation in greater abstraction by considering some theoretical cases for the purposes of determining if the constructed and novel precedent, which depends on no existing precedent, is truly comprehensive or not.

            Before discussing the issue further, let us consider the following imaginary case. Suppose a couple is being held at gunpoint, and the attacker threatens to severely wound one of them if the other doesn't agree to aid in the carrying out of a crime. Dialog is attempted, but is met with the attacker carrying out that threat. A short but objectively clear safe avenue of escape follows, but, knowing that escape would mean the certain death of the partner, the individual being coerced into the crime chooses not to take it. Whether it is argued that the decision to not escape resulted from a state of shock or from deep feelings of love, the proper administration of justice could not conclude that this person is responsible for the crime they are about to be forced into committing, despite the existence of an objectively clear escape route that was rejected, because it would result in the death of a loved one. The issue being drawn attention to is that, in rejecting the escape route, this deeply unfortunate individual is very much acting under duress. While the example is admittedly extreme, the point is that it is very much possible to be coerced into not escaping when the opportunity is available and that that coercion is, in context, indivisible from the coercion to commit the crime. The existence of a safe escape route is consequently not an objectively valid criteria to draw upon to negate a duress defence, although it may be valid in certain circumstances.

            Another scenario to consider would be Stockholm syndrome, which is when somebody in a hostage situation empathizes with their captor. It's thought that this is a consequence of extreme duress.[5] Yet, it could very well lead to a situation in which a hostage ignores a safe avenue of escape and then "willingly" acts as a party to a crime precisely because they are under duress. This constructs the same paradox - the accused can only use the defence of duress if they do not escape when possible, yet they cannot escape when possible precisely because they are under duress. Indeed, any situation that produces extreme duress - including going into shock - could conceivably lead to the same paradox.

            Unfortunately, any presented solution to this paradox will merely create another paradox and any solution to that another and so forth. For example, it could be claimed that the escape aspect of the duress defence is only relevant if the accused is of a sound state of mind; if the accused is not of a sound state of mind, she cannot be expected to escape, so the duress defence is valid, regardless of whether an escape route exists or not. However, consider a situation where the hostage is in a sound state of mind and the captor is not. In such a situation, the hostage may actually be in control, despite being held at gunpoint. It may follow that, in order to reduce the amount of harm done, the hostage cannot take the escape route when it is open precisely because she is in a sound state of mind and the captor is not; the sanity of the hostage may be the only thing preventing the captor from producing catastrophic harm. In such a case, should the hostage be punished for not escaping and then being coerced into a lesser crime, if not escaping means effectively preventing a catastrophic one? This is arguably applicable to the case at hand; while there was no valid escape route presented, the accused claims he pleaded with the gunman to not kill his friend[6] and this could have effectively saved his life. Again, this theoretical scenario of convicting a moderating voice for being a party to a lesser crime while in the process of preventing a greater one, all while under duress, and then claiming there was mental intent, would strongly question the integrity of the justice system. So, then it could be claimed that the existence of an escape route is only relevant if both the hostage and the captor are in a sound state of mind. Unfortunately, that would also open up a defence that could be used by those with legitimate intent, as arguing that the attacker is not in a sound state of mind could be used as an excuse for not escaping when there is no reason that the accomplice shouldn't have escaped, and in fact decided not to escape simply because they didn't want to. So, the criteria could be dramatically complicated to account for all of this, then. While this is a step in the right direction, it would open up another set of complex psychological questions about coercion and intent that, due to the nature of coercion, would no doubt be subject to paradoxical quandaries, as well.

            Unfortunately, the unanimous court decision has attempted to provide stringent boundaries that ignore all of these concerns. It is stated that a defence of duress can never be used if a safe avenue of escape exists (although what the means is not defined, and could be expanded to include some, but not all, of the presented concerns) and that the criteria for determining if a safe avenue of escape is possible or not should be objective, relative to the reasonable person perspective, but then controlled for subjective bias. Specifically, it is stated that:

My conclusions on the second and third issues raised by the appellant can thus be summarized as follows. An accused person cannot rely on the common law defence of duress if he or she had an opportunity to safely extricate himself or herself from the situation of duress. The rationale for this rule is simply that in such circumstances the condition of "normative involuntariness" that provides the theoretical basis for both the defences of duress and necessity is absent -- if the accused had the chance to take action that would have allowed him or her to avoid committing an offence, it cannot be said that he or she had no real choice when deciding whether or not to break the law. Furthermore, I believe that the internal logic of the excuse-based defence, which has theoretical underpinnings directly analogous to those that support the defence of necessity (as set out in Perka, supra), suggests that the question of whether or not a safe avenue of escape existed is to be determined according to an objective standard. When considering the perceptions of a "reasonable person", however, the personal circumstances of the accused are relevant and important, and should be taken into account.[7]

While this is presented as a way to weaken the stringency of an objective determination, it would still convict the person in several of the above cases, when conviction should occur in none of them. Further, I think it is clear that the previously explored examples disarm essentially all of the stated logic.

           

            The sum of all of these concerns is that the relationship between mens rea and duress cannot be subjected to any kind of hard, abstract or objective rules but must be determined on an isolated, case-by-case basis. Neither the actual case at hand nor any of the presented theoretical cases can be abstracted into a set of rules that is fair, just and valid in all of the different circumstances and in all further foreseeable circumstances. As duress and coercion are (by definition) never a choice, concerns about deterrence, predictability and consistency should not be dwelled upon; maintaining consistency of law, in the situation of duress, is actually an obstacle to the proper administration of justice.

LAWS 2302,
mar, 2013

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[1] R v. Hibbert, [1995] 2 S.C.R. 973, at para 2-11

[2] R v. Hibbert, [1995] 2 S.C.R. 973, at para 16

[3] R v. Hibbert, [1995] 2 S.C.R. 973, at para 63-68

[4] R v. Hibbert, [1995] 2 S.C.R. 973, at para 55

[5] http://www.fsc.yorku.ca/york/rsheese/psyc1010/wiki/index.php/Stockholm Syndrome: What Leads A Psychologically Healthy Person To Experience This Paradoxical Attachment

[6] R. v. Hibbert, [1995] 2 S.C.R. 973, at para 8

[7] R. v. Hibbert, [1995] 2 S.C.R. 973, at para 62

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/anarchyinlaw.html

no compromise on abortion

LAWS 2201

Nov, 2012

            In Morgantaler v. Queen, the Supreme Court of Canada was asked to answer the question of whether existing federal abortion legislation violated s. 7 of the Charter of Rights and Freedoms. The majority decision by Dickson C.J. and Lamer J, and roughly agreed upon by Beetz J, Estey J and Wilson J, took a rather tangential approach to this question. Beetz J and Estey J argued as follows:

If an act of Parliament forces a pregnant woman whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, her right to security of the person has been violated. [1]

 The decision would have been much clearer had it taken on the legislation directly, as Wilson J did in her concurring decision.

            Several doctors were illegally performing abortions in Toronto, those abortions being illegal because the women that were treated did not have legal certificates. These doctors, who were consciously ignoring the law out of conscience, were arrested and charged under s. 251 of the criminal code. This case has a complicated legislative history; these doctors had been fighting this legislation in court through several separate cases for many years, with the goal of getting a ruling in the Supreme Court. While they brought forth several accusations of charter violations and other generally unconstitutional things, the sole focus in the ruling is on the s. 7 violation. 

            The then existing legislation was the result of a very mild liberalization of abortion law brought in by Pierre Trudeau in 1967 that allowed for abortions under the circumstance that a woman had a note from a doctor that stated that continuing the pregnancy to term would endanger the woman's life. This was not meant to allow for abortion on demand, in the situation of rape, as a result of financial considerations or for any other reason beside the one explicitly stated - that bringing the term to pregnancy would endanger the woman's life; under the terms of this legislation, abortion would still be illegal in any of those other circumstances, and in any others. So, the purpose of the law was simply to allow for a single, specific exception - and, yes, to uphold the life of the foetus. This was pointed out clearly by the dissenting judges, McIntyre J. and La Forest J.[2]

            However, the majority decision completed side-stepped all of these difficult issues to instead focus on the restrictions put in place to obtain legal abortions. They claim that the state was unable to meet demand to perform abortions, which placed pregnant women seeking legal abortions in a dangerous situation. As each week passed, the threat of harm increased. As the purpose of the legislation was to provide an exception for legal abortion in order to prevent harm to pregnant women that would be harmed by a pregnancy, this inability to fund the system led to ineffective and ultimately negative legislation that accomplished precisely what it was seeking to prevent. As for the question of whether the law infringed s. 7, the majority agreed that it did. Applying the Oakes Test, the chief justice surprisingly concluded that the aim of the legislation was valid; this is curious, but irrelevant, as the question of whether the legislation would be effective in saving the lives of women led to the law being declared unconstitutional because it did not provide a reasonable path in achieving the objective of making women safer, and in fact was making them less safe.

            I would like to draw some attention to the judgment of Wilson J, the only female on the Supreme Court, as I feel it is the more valuable precedent to draw upon should a government choose to legislate on the issue of abortion in the future. Wilson J lays it out with refreshing clarity:

With all due respect, I think that the Court must tackle the primary issue first. A consideration as to whether or not the procedural requirements for obtaining or performing an abortion comport with fundamental justice is purely academic if such requirements cannot as a constitutional matter be imposed at all. If a pregnant woman cannot, as a constitutional matter, be compelled by law to carry the foetus to term against her will, a review of the procedural requirements by which she may be compelled to do so seems pointless.[3]

It seems to me, therefore, that to commence the analysis with the premise that the s. 7 right encompasses only a right to physical and psychological security and to fail to deal with the right to liberty in the context of "life, liberty and security of the person" begs the central issue in the case.[4]

To be able to decide what to do and how to do it, to carry out one's own decisions and accept their consequences, seems to me essential to one's self-respect as a human being, and essential to the possibility of that contentment. Such self-respect and contentment are in my judgment fundamental goods for human beings, the worth of life itself being on condition of having or striving for them. If a person were deliberately denied the opportunity of self-respect and that contentment, he would suffer deprivation of his essential humanity.[5]

A second contextual element of interpretation of s. 1 is provided by the words "free and democratic society". Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society…[6]

The idea of human dignity finds expression in almost every right and freedom guaranteed in the Charter. Individuals are afforded the right to choose their own religion and their own philosophy of life, the right to choose with whom they will associate and how they will express themselves, the right to choose where they will live and what occupation they will pursue. These are all examples of the basic theory underlying the Charter, namely that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.[7]

Thus, an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state. This right is a critical component of the right to liberty. Liberty, as was noted in Singh, is a phrase capable of a broad range of meaning. In my view, this right, properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance.[8]

Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government. That promise extends to women as well as to men. Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision -- with the guidance of her physician and within the limits specified in Roe -- whether to end her pregnancy. A woman's right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all.[9]

It is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience (although this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.[10]

Perhaps it is at this point that something should be said about the paternalistic nature of the legislation and judgment alike in their competing desires to "protect women from harm", and how the ruling ignores the fundamental issue before the court, which is whether or not a woman should be forced to go through difficult, painful procedures against her will, with the promise of unending expenses as a punishment for it. She agrees with the majority that the law should be struck down, but solely on the grounds that the state does not have the right to tell a woman what to do with her body. Should the issue arise again, it is hard to believe that the Supreme Court would use the precedent set by the Chief Justice; it is solely the judgment of Wilson J that is of value here for further jurisprudence.

            While it may in general be gracious to acknowledge both sides of any argument, the blunt reality is that it is very difficult to understand the pro-life position without bringing in concepts of religion. In practice, the position is in fact almost always advanced by individuals with a religious agenda. I feel that it must be acknowledged that there is simply no legal standing for the argument, and that it cannot advance without being placed in the proper religious context, outside of which it makes no sense. The pro-lifers are simply without a valid legal viewpoint; one can simply not be constructed, even out of the most gracious intentions. They are simply wrong, legally, and that is all there is to it. I'm going to demonstrate this by analyzing the law from an atheist perspective.

            First, the law states that an unborn human has no rights, by way of the legal definition of a person. Now, this is an old definition, and legal definitions are subject to modification, but without that modification, there is simply no legal standing for a foetus; while I acknowledge that "natural law theory" can be used as a backdoor to allow all manners of religious silliness to enter into a secular legal context, in this particular context it would be up against a direct legal definition and would necessarily lose. So, there is simply no question of balancing competing rights; the foetus simply does not have any rights. There is only one human being involved, and she has been established with a right to seek abortion through jurisprudence. There is no further argument in the matter.

            In order to endow the foetus with rights, one must go through one of a number of religious arguments; the most common approach in Canada is to dredge up the doctrine of the sanctity of life, which states that all life is precious because it is created by “God”. Yet, as I am an atheist, I do not believe that such a “God” exists, and consequently deny that this doctrine has any philosophical value, let alone any legal one without it being legislated. Legislating the sanctity of life would certainly be unconstitutional! So, if I were a genetic female seeking an abortion, I would argue that any legislation rooted in this silliness would infringe my s. 2(a) rights. As I would still be the only legally defined person, it would still not be a question of balancing rights.

            So, suppose the definition is changed, as one conservative Member of Parliament attempted to do, no doubt aware of the legal impossibility of abortion legislation without such a change in definition. At this point, the question becomes whether the change in definition is constitutional or not. If the justification is the sanctity of life, that would once again violate s. 2(a). If the justification is based on the idea that conception is the production of a new combination of DNA, then this is arguably objective and secular, albeit arbitrary and likely subject to unending revision. For brevity, let it be allowed. We are now at the point where we have legally defined the foetus as a person with rights, and finally have a conflict of competing rights and a legitimate legal quandary on our hands. The Supreme Court of Canada has ruled that in cases of conflicting rights the situation must be viewed in context; there can be no hierarchy of rights. From the pro-life perspective, the argument would be that, as the foetus is a legal person, consciously deciding to end its "life" would be equivalent to first-degree murder. It is now the pro-choice perspective that runs into an impossible legal position, as, due to the severity of the first-degree murder charge, it would have to plead self-defence; however, as the pregnant woman is clearly in control of the situation, it would be ruled manslaughter in nearly every situation that the self-defence argument is taken seriously in. While it could be argued that the criminal code for murder could be modified to allow for a special exception, this would clearly infringe the foetus' s. 15 rights to equality under the law. Yet, would it be justified? Well, if it would be, it would be under s. 7, which brings us back to where we started again. 

            We see, then, that the situation is only interpreted in one of two extremes, depending on the definition of a person - either the foetus is not a person and there is no question of competing rights or the foetus is a person and abortion is clearly pre-meditated murder, which is never tolerated for any reason. So long as the foetus is not a person, the state has no effective way to regulate abortion; if the foetus ever becomes a person, there is no way to argue against pre-meditated murder. No balance is possible between these two extremes. 

            In closing, and as an addendum, it should be pointed out that the initial legislation was constructed before there was a Charter of Rights, when Canada did not have a formal list of enumerated rights to act as a check on its legislative power. While the Supreme Court decided to pursue a very awkward argument, it should be clear that if s. 7 is to mean anything at all it must restrict the state's ability to force women to come to term with their pregnancies. While religious people that accept ideas like the sanctity of life may see it differently, from a purely legal standpoint an abortion currently only involves one person, and the rights of only one person. Theoretical restrictions on abortion are currently legally no different than theoretical restrictions on plastic surgery. Should this need to be tested in the future, and the law not amend the definition of a person beforehand, I would hope that the Supreme Court is able to fully clarify this matter - the state has no right to tell a woman what to do with her own body, as is clear under s. 7, and as the court itself made clear in it's opening statement:

Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person. [11]

---

[1] Morgentaler v. Queen [1988] 1 S.C.R. 30,  p. 35

[2] Morgentaler v. Queen [1988] 1 S.C.R. 30, p. 134

[3] Morgentaler v. Queen [1988] 1 S.C.R. 30, p 161-162

[4] Morgentaler v. Queen [1988] 1 S.C.R. 30, p 164

[5] Morgentaler v. Queen [1988] 1 S.C.R. 30, p 164-165

[6] Morgentaler v. Queen [1988] 1 S.C.R. 30, p 166

[7] Morgentaler v. Queen [1988] 1 S.C.R. 30, p 167

[8] Morgentaler v. Queen [1988] 1 S.C.R. 30, p 167

[9] Morgentaler v. Queen [1988] 1 S.C.R. 30, p 171

[10] Morgentaler v. Queen [1988] 1 S.C.R. 30, p 172

[11] Morgentaler v. Queen [1988] 1 S.C.R. 30, p 33-34

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/abortion.html

For the Courts to Decide: Why Bill C-323 Is neither Unconstitutional nor Substantial Legislation

For the Courts to Decide

Why Bill C-323 Is neither Unconstitutional nor Substantial Legislation

Laws 2501

Nov 16, 2012

            The question of whether An Act to amend the Federal Courts Act (Bill C-323) is constitutional or not lies upon the false premise that the proposed new powers of the federal court would have a jurisdiction in international rather than federal law. In fact, the proposed new powers would be redundant because the federal court already has those powers in existing federal law, both through the criminal code and through the Crimes Against Humanity and War Crimes Act (2000). If such legislation did not exist, it could be created; nor would such legislation not existing in any way limit the legislature's power to create a court of theoretical jurisdiction subject to potential future legislation. Further, international law is in fact judicially binding in Canada anyways, even if it hasn't been legislated yet, making the entire issue a completely moot point; international law is Canadian law, so there is no conflict of jurisdictions to begin with.[1] Lastly, the proposed legislation is actually in the sphere of private international law, meaning all these theoretical arguments about jurisdiction aren't even applicable! It is the court that will decide on a case-by-case basis if it has jurisdiction using the "real and substantial connection test".[2] The argument against the constitutionality of Bill C-323 on the grounds that it is outside of the jurisdiction of federal courts because it is in the jurisdiction of international law, as allegedly presented by Rob Nicholson, is both ignorant of existing constitutional, case, international and federal law and a fallacy in argumentation of type ignoratio elenchi, as well as a textbook red herring. Would we have been wise to expect better from Rob Nicholson? However, despite the bill being fully constitutional, it is not of any serious consequence, and little would change if it were passed.

            Before discussing the actual situation, it would be useful to outline the powers that the constitution gives to the legislature to create new courts. These powers, as stated in s. 101 of the Constitution Act, are very broad and subject solely to the restriction of the court administering the "Laws of Canada".[3] As there is literally no restriction present other than the obvious restriction that Canadian Courts must interpret Canadian Law, there is absolutely no reason to suggest any further limitations exist or were meant to exist. The sole question at hand is how to define "Laws of Canada", but this is not a difficult quandary: the "Laws of Canada" include legislation produced legislatively, unwritten constitutional principles, case law and binding international treaties. However, in context, the question is a little bit more subtle.

           

            Whether international treaties are Canadian Law or not is not a question that is controversial or up for debate. The initial framers of the constitution meant to invest this power in the executive branch through s. 132; however, as we no longer accept the authority of the Monarch, this provision in the constitution is now considered obsolete. Nor has the Prime Minister inherited absolute executive power in domestic issues from the Monarch. The Prime Minister must table domestic legislation and have it pass through the House of Commons like any other Member of Parliament. While the context and meaning of s. 132 intends for International Law to be Canadian Law, the constitution no longer provides for a mechanism to allow this to come into force because we no longer have a comparable executive branch. However, depending on how the legislation is properly interpreted through the division of powers, either the federal or provincial legislatures are legally obligated to legislate on the issue in order to convert their interpretation of the international treaty into domestic statute: this is the existing interpretation of s. 132. It has been left up to the judiciary to protect this constitutional intention and enforce international treaty obligations should the relevant legislatures refuse to carry out their constitutional duty in doing so.[4]

           

            There is a mountain of case law supporting the assertion that international law is not just Canadian Law but a higher law than Canadian Law.[5]  First, consider the case of Pushpanathan v. Canada. A convicted narcotics dealer was scheduled for deportation back to Sri Lanka, and attempted to avoid this using refugee status. Domestic Canadian Law denied him refugee status on the basis of him being a convicted offender, but the Supreme Court overturned this on the argument that the restriction in the United Nations Convention Relating to the Status of Refugees, of which the immigration act was modeled on, did not apply to narcotics dealers.[6] Second, consider the case of Thomson v. Thomson, where a child custody dispute between parents in Scotland and Manitoba was decided by considering the Hague Convention on the Civil Aspects of International Child Abduction rather than the local Manitoba statutes, which were based on the convention.[7] A third example is a little closer to home: R v. Marshall, where the contents of the centuries old treaties signed between the Mi'kmaq and the British overpowered existing provincial law.[8] In R v. Hape, the court stated the following: [9]

One final general principle bears on the resolution of the legal issues in this appeal. It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of  domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result. R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 422, explains that the presumption has two aspects. First, the legislature is presumed to act in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community. In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations. The second aspect is that the legislature is presumed to comply with the values and principles of customary and conventional international law. Those values and principles form part of the context in which statutes are enacted, and courts will therefore prefer a construction that reflects them. The presumption is rebuttable, however. Parliamentary sovereignty requires courts to give effect to a statute that demonstrates an unequivocal legislative intent to default on an international obligation. See also P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at pp. 367-68.

The presumption of conformity has been accepted and applied by this Court on numerous occasions. In Daniels v. White, [1968] S.C.R. 517, at p. 541, Pigeon J.

[T]his is a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. . . . [I]f a statute is unambiguous, its provisions must be followed even if they are contrary to international law . . . .

See also Zingre, at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 137; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62, at para. 50. The presumption applies equally to customary international law and treaty obligations.

            Now that we understand the actual place of international law in the Canadian legal framework, we can discuss the proposed bill. A member of the opposition has produced a bill to modify the Federal Courts Act that would allow foreign citizens to sue Canadian corporations in Canadian federal courts if they are accused of breaking international treaties that Canada has signed, whether the breach has occurred within Canada's geographic jurisdiction or not. This bill also abolishes the statute of limitations for a long list of proceedings, which are explicitly enumerated in the bill, and attempts to clarify existing private international law conventions for determining which court has the proper jurisdiction to hear conflict-of-law cases by writing new rules into Canadian statute.[10] It has been claimed that if the bill happens to pass then the government will argue that it is unconstitutional under s. 101 because the proposed amendments to the court's jurisdiction are not in the sphere of "Canadian Law".

            Now that the proper background has been presented, it is easy to see that this argument is preposterous. Canadian courts have long upheld international law; once Canada signs a treaty, it is judicially enforceable Canadian Law. There simply is no constitutional conflict of jurisdiction.

            However, let us suppose for the sake of argument that there is a conflict of jurisdiction and that Canadian Courts are no longer allowed to overrule domestic law with international law. Would this matter much? While the Prime Minister does not have executive power, she does generally have absolute control of the House of Commons if she has a majority. So, it should be no surprise that Canada has legislated essentially every international treaty that it's ever signed: majority government allows for this privilege, and why else would a Prime Minister sign on? The consequence of this is that when we speak of Canada signing an international treaty, we also speak of Canada enacting domestic legislation that interprets this international treaty; it is not just the case that International Law is Canadian Law, it is also the case that International Law is almost always legislatively enacted Canadian statute law. Now, let us move from the general to the specific.

            It so happens to be that the bulk of Bill C-323 is in fact existing Canadian Federal Law under the Crimes Against Humanity and War Crimes Act (2000), which binds Canadians to international law as a shifting set of norms and conventions, rather than as a static set of statutes.[11] Of course, it would be up to the court to determine what those shifting norms and conventions are, meaning what Nicholson allegedly claims is unconstitutional is already enacted federal law; the purpose of the proposed s. 25.2 amendment is not to create new areas of jurisdiction (these already exist), but to remove certain areas from the statute of limitations, pursuant to the proposed amendment in s. 39.3. So, even if we accept the faulty argument that Canadian courts can only interpret Canadian statues, there is still not a meaningful question of jurisdiction.

            However, again, let us suppose that there is: let us suppose that this enabling federal legislation does not exist. Would the law then be unconstitutional? Well, if we wrongly deny that the court has the ability to enforce international law then the only possible interpretation of the bill is that the expanded jurisdictions are within the context of Canadian law. While the bill may consequently be more or less useless until the proper statute is enacted, that does not make it unconstitutional, it merely makes it unenforceable. The constitution does not specify what the "Law of Canada" is or ought to be, nor should it have as law is constantly shifting and constantly being redefined. A constitution is meant to be a set of rules that shape how law evolves over time, not a means of self-inflicting societal stagnation or arrested development.

            So, it's quite clear there is not a valid constitutional issue at play here in relation to the question of jurisdiction. International law is constitutionally enforceable in Canada. If it were not, existing federal statues that mimic international law would be. If international law was not enforceable and these statutes did not exist, the bill would be properly interpreted as pre-empting the construction of those statutes and would consequently not be unconstitutional: it would be providing enhanced jurisdiction to a court of theoretically unlimited jurisdiction in an area of law in which in no statutes yet exist, with the clear aim of pushing legislators to legislate further in this area.

            However, there is a valid constitutional problem, namely the removal of the statute of limitations, which is likely meant to allow for the prosecution of past wrongs but is not likely to get past s. 11(g) of the Charter of Rights and Freedoms. As any action taken under the proposed amendments would be against Canadian Citizens, such an amendment would likely not be enforceable as it is meant in a Canadian court. While I cannot find a reference in the constitution that explicitly protects the statute of limitations, the fairness of removing it only for crimes against foreign citizens is dubious at best; a s. 15 challenge from a Canadian citizen to remove the statute of limitations would likely result in the court ordering the legislature to even things out. Further, I would expect that a challenge based on the statue of limitations being an "unwritten principle of democracy" would be successful. Should the amendment to s. 39.3 be removed, the amendment to s. 25.2 would no longer serve a purpose and should therefore be removed along with it. That would leave only the amendments to s. 25.1 and s. 50.4, which together seek to regulate private international law within Canada.

            There are two wide branches of international law: public and private. Public international law describes relationships between states. Private international law describes relationships between private parties in differing states. When court action occurs between individuals in different jurisdictions, the result is called a conflict of law. Canadian law has gone through a long evolution of thought on this point, but has recently settled upon a "real and substantial connection" test with a complex series of clauses.[12] The most recent precedent-setting Canadian court decision in the matter is in Club Resorts Ltd. v. Van Breda (2012),[13] which clarified the existing procedure to determine jurisdiction. It is the court that will decide if it has jurisdiction by determining if there is a real and substantial connection between the jurisdiction and the case. While the test provided for some examples of a real and substantial connection (the defendant is domiciled or resident in the province, the defendant carries on business in the province, the tort was committed in the province, a contract connected with the dispute was made in the province), it explicitly pointed out that such a list is not exhaustive. Further, it provided some instruction in determining whether any new connections are "real and substantial". In most cases, the defendant being a Canadian citizen would qualify as a real and substantial connection, which would be enough to allow the court to declare it has jurisdiction. In other words, the Supreme Court has, though precedent and case law, recently constructed essentially the same thing that C-323 meant to erect, rendering C-323 largely pointless.

            The legislation does not attempt to take away the court's ability to decide if it has jurisdiction, but it does attempt to guide it in doing so. The amendments to s. 50.4, together, state that the court will only deny it has jurisdiction if the defendant convincingly argues that a better court exists to hear the case in. This is not, together, substantially different than the "real and substantial connection" test, but it does provide a few difficult points for the courts to work out - specifically the (d) clause that states that jurisdiction can only be denied if it's in the "adamant" interests of justice. Does this respect the independence of the judiciary?

            Putting the constitutionality and redundancy of the legislation aside, there are legitimate questions to be raised regarding the eventual efficacy of the proposed legislation. While I have very strong feelings about the negative effects of Canadian Colonialism in the global south, and would argue strenuously that our government should be taking strong actions against criminal actions as defined by existing federal law such as the Crimes Against Humanity and War Crimes Act (2000), it is not at all clear that allowing civil litigation will lead to anything resembling justice. Will the relevant victims have the financial means to access our distant federal court system, or will such a remedy be restricted only to those who do not need access to it, rendering it more of a political symbol than a functioning dispute-resolution mechanism? Will corporate governing structures continue to make it difficult to hold them accountable?[14] Will the mining companies the legislation is meant to curb the behaviour of perform cost-benefit analyses that lead to the conclusion that the crime is worth the price of settlement, or to actions that produce even greater loss of life in order to avoid court battles? Ought issues such as genocide and murder be restricted to civil proceedings and financial settlements in the first place, or ought the criminal elements embedded within the corporate elite face consequences that affect them on a more substantial and personal basis? Upon analysis, the member's motion truly seems more like an attempt to gain political points than an attempt at bringing corporate Canada to its long overdue justice; this bill would not create a useful tool to clean up our corporate sector of criminality and corruption, and even seems to be based on the silly classical liberal idea of contract law as the basis of an ordered society. In order to solve the problems that currently exist, we need to enforce our existing criminal laws, not provide inaccessibly expensive means of civil litigation to the poorest and most exploited peoples of the world. What many of our mining companies do in Latin America and Africa on a day-to-day basis is already subject to life imprisonment under Canadian Law, yet the CEOs of these companies continue to live with impunity and luxury. Inevitable extradition problems aside, many of these governments are routinely massively bribed by the precise interests that the legislation is meant to hold accountable, making local enforcement a virtual impossibility. Why isn't the RCMP doing its job and giving these mass murderers the life sentences that they deserve?

            There are currently a number of attempts in process to bring Canadian mining concerns to justice, but they are still in the trial stage. Should these cases by accepted under the new test for jurisdiction, they will undoubtedly set significant precedent for future action. This is currently happening with or without the aid of Bill C-323.[15]

            It should also be pointed out that the government's recent Justice for Victims of Terrorism Act, no doubt championed by Rob Nicholson as a great victory for justice, attempts to provide Canadians with the ability to sue foreign terrorist organizations.[16] The bill also lifts the statute of limitations back to 1985. It is remarkably difficult to argue that the widow of a murdered Ecuadorean miner is any less of a victim of terrorism or should not have the same access to justice that the family of a Canadian terror victim should, or at least it is without resorting to open and crude displays of racism. It is consequently foreseeable that this act may help in easing issues of jurisdiction; it is easy to see the court making the argument that if the Government of Canada feels its citizens can sue foreign organizations for terrorism then it must also feel that foreign citizens can sue Canadian organizations for similar reasons. Of course, the court is likely to interpret such legislation as subject to the norms of existing private international law and any legislation to the contrary as an attack on their independence.

           

            The proposed bill is certainly not unconstitutional under s. 101; in fact, it's completely redundant, offering no substantial change to existing jurisprudential norms. However, there are legitimate problems with the bill: the removal of the statute of limitations is unlikely to withstand a charter challenge, it is questionable whether it respects the independence of the judiciary and it's not likely to be very effective in accomplishing its long overdue goal of bringing Canadian Colonialism to justice.

JURISPRIDENCE

Club Resorts Ltd. v. Van Breda [2012] S.C.C. 17,

online: <a http://canlii.ca/en/ca/scc/doc/2012/2012scc17/2012scc17.pdf>

Pushpanathan v. Canada [1998] 1 S.C.R. 982,
online: <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1627/index.do>

R. v. Hape, [2007] 2 S.C.R. 292,

online:< www.canlii.org/en/ca/scc/doc/2007/2007scc26/2007scc26.pdf>

R v. Marshall [1999] 3 SCR 533,

online: < http://www.canlii.org/en/ca/scc/doc/1999/1999canlii665/1999canlii665.html>

Thomson v. Thomson [1994]  3 SCR 551,

online: <http://www.hcch.net/incadat/fullcase/0011.htm>

LEGISLATION

Bill C-323, An Act to amend the Federal Courts Act (international promotion and protection of human rights), First Session, Forty-First Parliament, 2012, online: Parliament of Canada <http://parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5160018&File=4>

Crimes Against Humanity and War Crimes Act, SC 2000 c. 24,

online: Department of Justice Canada  < http://laws-lois.justice.gc.ca/eng/acts/C-45.9/>

Constitution Act, 1867, R.S.C. 1985, s.101, online: Canadian Legal Information Institute

< http://www.canlii.org/en/ca/const/const1867.html>

Justice for Victims of Terrorism Act, SC 2012 c. 1, s.2,

online: Department of Justice Cana <http://laws-lois.justice.gc.ca/eng/acts/J-2.5/page-1.html>

SECONDARY SOURCES

Ert, Gib Van. "Chapter Six: Canada", in David Sloss, ed, The Role of Domestic Courts in Treaty Enforcement (Cambridge: Cambridge Press, 2009).

online: < www.litigationchambers.com/pdf/vanErt-domestic-courts.pdf>

Ovsep, Afarian et al. "The SCC Clarifies the 'Real and Substantial Connection' Test" Mccarthy-Tetrault (April 23, 2012) online: Mccarthy-Tetrault <http://www.mccarthy.ca/article_detail.aspx?id=5845>

Tetley, William. "Current Developments In Canadian Private International Law" in 79 Canadian Bar Review (Saskatoon: University of Saskatchewan, 1999).

online: <http://www.mcgill.ca/maritimelaw/conflicts/canprivtintl>

"Courting Justice: Victims of mining abuses sue in Canada", Mining Watch Canada (February 11, 2012) online: Mining Watch Canada < http://www.miningwatch.ca/article/courting-justice-victims-mining-abuses-sue-canada>

---

[1] Gib Van Ert, "Chapter Six: Canada", in David Sloss, ed, The Role of Domestic Courts in Treaty Enforcement (Cambridge: Cambridge Press, 2009), p. 6-20.

[2] Club Resorts Ltd. v. Van Breda [2012] S.C.C. 17 at para 0.

[3] Constitution Act, 1867, R.S.C. 1985, s.101, online: Canadian Legal Information Institute

< http://www.canlii.org/en/ca/const/const1867.html>

[4] Gib Van Ert, "Chapter Six: Canada", in David Sloss, ed, The Role of Domestic Courts in Treaty Enforcement (Cambridge: Cambridge Press, 2009), p. 2-20

[5] ibid, p. 18-20

[6] Pushpanathan v. Canada [1998] 1 S.C.R. 982 at para 51-77

[7] Thomson v. Thomson [1994]  3 SCR 551

[8] R v. Marshall, [1999] 3 SCR 533

[9] R. v. Hape, [2007] 2 S.C.R. 292, at para 53-56

[10] Bill C-323, An Act to amend the Federal Courts Act, First Session, Forty-First Parliament, 2012

online: Parliament of Canada <http://parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5160018&File=4>

[11] Crimes Against Humanity and War Crimes Act, SC 2000 c.24, s.4, online: Department of Justice Canada

< http://laws-lois.justice.gc.ca/eng/acts/C-45.9/>

[12] William Tetley, "Current Developments In Canadian Private International Law"  in 79 Canadian Bar Review (Saskatoon: University of Saskatchewan, 1999), p. 152-199. online: <http://www.mcgill.ca/maritimelaw/conflicts/canprivtintl>.

[13] Afarian, Ovsep et al, "The SCC Clarifies the 'Real and Substantial Connection' Test" Mccarthy-Tetrault (April 23, 2012) online: Mccarthy-Tetrault <http://www.mccarthy.ca/article_detail.aspx?id=5845>

[14] "Courting Justice: Victims of mining abuses sue in Canada", Mining Watch Canada (February 11, 2012) online: Mining Watch Canada < http://www.miningwatch.ca/article/courting-justice-victims-mining-abuses-sue-canada>

[15] "Courting Justice: Victims of mining abuses sue in Canada", Mining Watch Canada (February 11, 2012) online: Mining Watch Canada < http://www.miningwatch.ca/article/courting-justice-victims-mining-abuses-sue-canada>

[16] Justice for Victims of Terrorism Act, SC 2012 c. 1, s.2,

online: Department of Justice Cana <http://laws-lois.justice.gc.ca/eng/acts/J-2.5/page-1.html>

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