Issuu on Google+

CARLETON UNIVERSITY

Journal of Legal Studies “Upon Law Rests Society” Vol. III Issue 1, 2011


Carleton University Journal of Legal Studies Vol. III Issue 1, 2011 Editor-In-Chief Evan Hamilton Assistant Editor-In-Chief Michael De Luca Executive Director Shelbi Dippold Administrative Director Laura McIntosh Publisher Joel Eastwood

Copy Editors Yaelle Gang Joshua Zeliger Editorial Board Racheal Dean Christina Hebert Brandon Krauthaker Broghan Master Ben O’Bright Anoshia Oria Thomas Surmanski Kaisha Thompson Tanya Treciokas Barbara Ann Vocisano Layla Warsame

A Note From The Editor-In-Chief Dear Reader, We are very excited to present to you Vol. III Issue 1 of the Carleton University Journal of Legal Studies (CUJLS). In this issue we have eleven exciting articles that both undergraduate and graduate students from Carleton University’s Law Department have contributed. With this issue we hope to fulfill our mission statement to act as an outlet for creative academic research and intellectual debate on a variety of issues related to law and society. I would like to thank the Carleton University Legal Studies Society and Carleton University’s Department of Law and Legal Studies for helping us get the CUJLS back up and running this year. We hope with your support to continue to act as an avenue for showing Carleton’s exemplary academic achievement in the future. On behalf of the entire journal team, thank you for reading. Evan Hamilton


Table of Contents

The Many Faces of the Criminal Defence Lawyer By Thomas Surmanski

4

Victim-Offender Mediation for Victims of Sexual Abuse By Andrew MacGregor

14

Organ Donation By Sarah Livermore

28

The Varying Reaction to HST Legislation in Ontario and British Columbia: A Public Discourse Analysis By Michael De Luca

56

Refugee Reform in Canada: Examining the Balanced Refugee Reform Act and its Effect on Canadian Refugee Law By Andrew Retfalvi

72

Victims, Perpetrators and Tabloids By Evan Hamilton

88

The Canadian Securities Act & Federal Legislative Authority By Naila Baig

102

The Proposed Canadian Securities Act and Constitutionality: Can the federal government legislate? By Kyle Elliott

114

Emergency Circumstances and Deferential Attitudes: A Recipe for Discrimination in the Cases of Japanese Internment During the Second World War By Mark Calderaro The Duty to Consult By Kaisha Thompson

128 144


Carleton University Journal of Legal Studies

4

Vol. III Issue 1

The Many Faces of the Criminal Defence Lawyer Thomas Surmanski The media portrayal of criminal defence lawyers is often an inaccurate representation of their role in the operation of the justice system. Criminal defence lawyers fulfill three basic functions within the criminal justice system: acting as advocates for the accused, as officers of the courts, and as ministers of justice. Additional roles include promoting a climate of therapeutic jurisprudence, defending the mentally ill in criminal proceedings, and fighting to reverse the systemic error of wrongful conviction. Through an examination of these various roles, it becomes evident that criminal defence lawyers are an irreplaceable part of the justice system in a democratic society. To question the necessity of criminal defence lawyers is to question the basis of the adversarial system and democracy.

T

he portrayal of criminal defence lawyers in the media as constitutional obstructionists who manipulate legal technicalities to free criminals at the expense of public safety is not uncommon.1 While

this caricature may accurately depict a small percentage of criminal defenders, it misrepresents the true character of the criminal defence profession. Acting 1 Charles Sevilla, “Criminal Defense Lawyers and the Search for Truth� (1997) 20 Harvard Journal of Law of Public Policy at 524.


The Many Faces of the Criminal Defence Lawyer

2011

5

as advocates for the accused, officers of the courts and ministers of justice are the three main functions of criminal defence lawyers. Some defence lawyers also take on additional roles by promoting a climate of therapeutic jurisprudence, defending the mentally ill in criminal proceedings, and fighting to reverse the systemic error of wrongful conviction. Examining the various roles of criminal defence lawyers reveals that, far from hampering the application of justice, they are an integral part of the justice system in a democratic society. While fulfilling three basic roles (and several other areas of specialization) the role of defence lawyers is complex. For outsiders, the criminal defence lawyer’s profession requires clarification. To begin, the first basic role is that of an advocate. As an advocate, the defence attorney speaks on behalf of their client while maintaining neutrality. The principle of neutrality dictates that lawyers “professionally neutral with respect to the moral merits of the client or the client’s objectives.”2 Neutrality does not mean that a lawyer is a passive pawn within the criminal justice system. On the contrary, a defence lawyer should act as a zealous representative, committed to the unwavering pursuit of the client’s objectives within the bounds of law.3 When defending a client who possesses a different religion or ideology, a defence lawyer may choose to invoke this ideology in the general defence strategy of the case or in his pleadings. A lawyer need not sympathize with his client’s political or religious views, but differing views should not prevent him from providing a well-constructed defence.4 2 David Layton, “The Criminal Defense Lawyer’s Role” (2004) 27 Dalhousie Law Journal at 469. 3 Ibid at 472. 4 Ibid at 470.


6

Carleton University Journal of Legal Studies

Vol. III Issue 1

In his or her second role, the defence attorney acts as an officer of the court. As such, an attorney is bound to make decisions that reflect respect for the truth-seeking function of the trial process and to refrain from fraud, dishonesty, and misrepresentation.5 In a sense, the role of an officer of the court supercedes the role of an advocate, as it is the only time in which confidentiality can be breached.6 In this example, defence lawyers are able to maintain a harmony between the bench and the bar.7 A third and fundamental role of the criminal defence lawyer is that of a minister of justice. In the role of a minister of justice the defence attorney goes beyond the truth-seeking process to also pursue justice. As Professor Flowers from the Stetson University College of Law writes, “[J]ustice is something larger and more intimate than truth. Truth is only one of the ingredients of justice.”8 Accordingly, as part of this duty to justice, the attorney is bound to protect the judicial system from unjust results while at the same time protecting the substantive and procedural rights of the accused through adherence to the correct methods and processes.9 While every defence attorney carries out the above referenced functions, some extend their practice to more specialized fields, which include therapeutic jurisprudence, defence of the mentally ill, and advocacy for the exoneration of the wrongfully convicted. With rising rates of incarceration, there has been a push from criminologists, clinical law professors, and Corrections Canada to 5 Roberta Flowers, “The Role of the Defense Attorney: Not Just an Advocate” (2010) 7 Ohio Journal of Law at 648. 6 Ibid at 649. 7 Ibid. 8 Ibid. 9 Ibid at 650.


2011

The Many Faces of the Criminal Defence Lawyer

7

lower the rate of recidivism by providing therapeutic remedies. Ways in which to do so may be through diversion, or aiding in the reintegration of offenders into society. Defence lawyers that practice criminal law have found success with augmenting traditional criminal law with therapeutic jurisprudence (TJ) in order to treat the cause(s) of legal issues, rather than simply their symptoms.10 An ideal situation for the application of TJ is the example of an offender facing charges of habitually driving while under the influence of alcohol. To incarcerate the offender for the sake of penalizing, disregards the cause of the problem, and addresses the offence without analyzing other important factors.11 In contrast, a TJ approach would focus on rehabilitation of the offender and mitigation of punishment if the offender is willing to accept responsibility for their actions and submit to evaluation, treatment, and relapse prevention programs. These steps could then be used to mitigate the offence in plea bargaining or at the sentence hearing.12 As discussed earlier adopting a TJ approach enriches and humanizes the legal process in many ways. The TJ approach enables the defence attorney to fulfill a rehabilitative role when crafting and implementing client pleas and sentencing considerations. By giving the client the opportunity to honestly voice their story, unbridled by legal red tape, a stronger relationship can be built between the attorney and client, leading to a deeper understanding of the true legal and non-legal issues at hand.13 After root causes are identified and a commitment to rehabilitation is made, the next step defence lawyers will 10 David Wexler, “Therapeutic Jurisprudence and the Rehabilitative Role of the Criminal Defense Lawyer� (2005) 17 St. Thomas Law Review at 744. 11 Ibid. 12 Ibid. 13 Ibid at 748.


Carleton University Journal of Legal Studies

8

Vol. III Issue 1

take is the facilitation of available treatment programs such as problem-solving courts (PSCs). Drug treatment courts (DTCs), a branch of PSCs, operate before and after guilty pleas but only with client consent.14 A defence lawyer utilizing TJ will compile a proposition outlining the rehabilitative steps taken by his client and present it to the Crown prosecutor to negotiate a favourable settlement.15 Ultimately, the goal is to help the client realize which behaviours lead to criminality and to make a strong dedication to overcome these behavioural patterns.16 A second specialized role of the criminal defence lawyer is that of a defender of the mentally ill. Television programs, such as Prison Break, frequently misrepresent the mentally ill as dangerous or subhuman and disregard their rights.17 On average, 7% of individuals admitted annually into the criminal justice system exhibit signs of a severe mental illness, thus indicating that the number of mentally ill individuals in the criminal justice system is a growing concern and requires a compassionate response.18 Although there is treatment available for some mentally ill prisoners, the gap between those treated and those in need of treatment is wide. For example, 16% of jailed offenders are said to suffer from a mental illness. However, only 60% of mentally ill prison inmates and 41% of mentally ill inmates receive mental health services upon admission to a criminal justice facility.”19 14 Ibid at 751. 15 Ibid at 753. 16 Ibid at 754. 17 Russell Covey, “Criminal Madness: Cultural Iconography and Insanity” (2009) 61 Stanford Law Review 6 at 1391. 18 Ibid at 1377. 19 Christin Keele, “Criminalization of the Mentally Ill: The Challenging Role of the Defense Attorney in the Mental Health Court System” (2002) 193 UMKC Law Review at 183184?.


The Many Faces of the Criminal Defence Lawyer

2011

9

According to C. Keele, criminal defence attorneys have three methods of approach to deal with incarcerated individuals suffering from mental health issues. The first is the Structured-Flexible Approach, in which the attorney creates a stable, structured setting for their client throughout the judicial process and is flexible when creating a treatment plan to work one-on-one with the offender. The second approach is the Team Approach. The Team Approach involves the creation of a coalition of defence attorneys, psychologists, social workers, treatment providers, and psychiatrists who create a complete plan for the offender.20 The final approach is the Holistic Lawyering Approach. The Holistic Lawyering approach resembles TJ insofar as it operates outside the realm of conventional legal solutions and deals with offenders and their needs by treating the cause(s) of the criminal behaviour in the hope of reducing future recidivism.21 Finally, some criminal defence lawyers choose to engage in work which addresses possible miscarriages of justice. Wrongful conviction undermines the integrity and legitimacy of the criminal justice system and occurs with alarming frequency. Even when exonerated by DNA testing, there are people who continue to doubt the legitimacy of exonerated cases. The Canadian case of Guy Paul Morin illustrates the continued doubt.22 Additionally, some government and criminal justice officials argue that wrongful conviction cases are anomalies and the exposure of wrongful conviction cases demonstrates that the system indeed functions well. This faulty logic is a major impediment to 20 Ibid at 189. 21 Ibid at 190. 22 Jerome Kennedy, “Writing the Wrongs: The Role of Defence Counsel in Wrongful Convictions - A Commentary� (2004) 46Canadian Journal of Criminology and Criminal Justice 2 at 199.


10

Carleton University Journal of Legal Studies

Vol. III Issue 1

the recognition and exposure of wrongful convictions. Jerome Kennedy, acting as the regional representative of Newfoundland’s Association in Defence of the Wrongly Convicted (AIDWYC) suggests that there are a number of factors that lead to wrongful convictions. These include, but are not limited to, societal attitudes and police perceptions (which change presumption of innocence into a presumption of guilt), the absence of scrutiny of potential perjury of co-accused or other witnesses, jailhouse informants, and police misconduct.23 For those lawyers involved in organizations such as the Association in Defence of the Wrongly Convicted (AIDWYC) and Criminal Cases Review Commission (CCRC), the objective is to eradicate the conditions that give rise to errors of justice and to participate in the review of and —where warranted — correction of wrongful convictions.24 Surrounded by sensationalized media and television programs, criminal defence lawyers are often viewed as corrupt, manipulative individuals who befriend thieves, child molesters, rapists and murderers for monetary gain. This perception could not be farther from the truth. The role of a criminal defence lawyer is not a simple one. Indeed, the work being done by criminal defence lawyers is a fundamental feature of fair trial and a cornerstone of the criminal justice system. William Shakespeare suggested that the first step towards despotism would be to eliminate the criminal defence profession. In Shakespeare’s revolutionary character Dick the Butcher’s words: “The first thing we do is kill all the lawyers.”25 To note, the tactic of killing all lawyers was employed in the 20th Century by members of the Third Reich and communist Romania, who 23 Ibid at 198. 24 Ibid at 199. 25 Charles Sevilla, Supra note 1 at 521.


The Many Faces of the Criminal Defence Lawyer

2011

11

abolished the independent defence bar as a step towards totalitarianism and oppression.26 The role of the defence lawyer may be criticized or misunderstood, but that makes it no less crucial for the maintenance of a truly free and democratic society. 26 Ibid.


12

Carleton University Journal of Legal Studies

Vol. III Issue 1

References Behrendt, Jeffery, “In Court Without a Lawyer” (June-July 2002) LawNow 32. Covey, Russell, “Criminal Madness: Cultural Iconography and Insanity” (2009) 61 Stanford Law Review 6 at 1375. Flowers, Roberta, “The Role of the Defense Attorney: Not Just an Advocate” (2010) 7 Ohio Journal of Law 648. Keele, Christin, “Criminalization of the Mentally Ill: The Challenging Role of The Defense Attorney In the Mental Health Court System” (2002) 71 UMKC Law Review (193?). Kennedy, Jerome, “Writing the Wrongs: The Role of Defence Counsel in Wrongful Convictions a Commentary” (2004) 46Canadian Journal of Criminology and Criminal Justice 2 at 197. Layton, David, “The Criminal Defence Lawyer’s Role” (2004) 27 Dalhousie Law Journal 379. Sevilla, Charles, “Criminal Defense Lawyers and the Search for Truth” (1997) 20 Harvard Journal of Law & Public Policy 2 at 519. Slobogin, Christopher & Mashburn, Amy, “The Criminal Defense Lawyer’s Fiduciary Duty to Clients with Mental Disability” (2000) 68 Fordham Law Review 1581. Tuinstra, Jarinde, “Defending the Defenders: the Role of Defence Counsel in International Criminal Trials” (2010) 8 Journal of International Criminal Justice 4 at 463. Wexler, David, “Therapeutic Jurisprudence and the Rehabilitative Role of the Criminal Defense Lawyer” (2005)17 St. Thomas Law Review 743.


2011

The Many Faces of the Criminal Defence Lawyer

13


Carleton University Journal of Legal Studies

14

Vol. III Issue 1

Victim-Offender Mediation for Victims of Sexual Abuse Andrew MacGregor This paper looks at the possibility of using mediation as a form of healing for victims of sexual abuse by clergy members. More specifically, it compares techniques used in the healing processes of the residential school crisis in the late 20th century to current issues regarding the sexual abuse of parishioners by members of the clergy. This paper will show that mediation can be beneficial in cases of sexual abuse by members of the Church, provided that certain conditions are satisfied. In addition, possible techniques will also be highlighted to implement and practice these aforementioned healing techniques.

V

ictim-offender mediation is a relatively new concept, first observed in the mid-1970s. This concept is quickly growing as a form of closure for victims by way of identifying with the offender.

The realization that an individual is harmed by someone other than a criminal can be helpful in dealing with negative emotions, after the fact. The purpose of this paper is to look at the devastating effects afflicted upon sexual abuse victims, and to assess whether victim-offender mediation has any benefits in such situations. Although there is a high risk for re-victimization, in certain circumstances victim-offender mediation may help give sexual abuse victims closure. To ensure the safety of the victim, there must be a thorough investi-


2011

Victim-Offender Mediation for Victims of Sexual Abuse

15

gation prior to the mediation to assess the sincerity of the offender to make amends. I will look at the process used to help victims of the residential school crisis in the twentieth century and identify the techniques used by counsellors to aid in the healing process. Once identified, I will apply these techniques to victims of sexual abuse by members of the Church and determine whether this process has the same beneficial effects. The residential school crisis commenced in the late 1800s, and began spinning out of control when attendance was made mandatory in the early twentieth century. Children aged 7 to 15 were forced to attend schools taught by members of various Churches in Canada. These children were subject to long-term abuse, ranging from physical assault to sexual abuse. One Elder Grandmother describes the serious harm not as one or two main abuses, but rather an accumulation of daily acts of humiliation and degradation.1 This abuse caused intense trauma for many generations of Aboriginal people after they left the schools. This issue is still felt in society today. The Aboriginal Healing Foundation was established to help victims of these schools and published a manual to assist aid workers in the counselling process. One of the techniques used is to replace the feelings of betrayal and oppression with ones of support and compassion. Many of the concepts described in this manual can be reapplied to other victims of sexual abuse, such as victims of abuse by clergy members. There have been thousands of cases of abuse by members of the Church reported in the past few decades. In one high profile case, a priest admitted to 1 Aboriginal Healing Foundation, Reclaiming Connections: Understanding residential school trauma among Aboriginal people: a resource manual, (Ottawa: Aboriginal Healing Foundation, 2005) at 73.


16

Carleton University Journal of Legal Studies

Vol. III Issue 1

sexually abusing thirty young boys over a 14 year span, with an estimate of 2-3 encounters per month. In a different case, a priest allegedly assaulted in excess of 130 children throughout his time with the Church. With victim numbers this high, a solid system needs to be in place to help with the process of recovery.2 The process of recovery should mimic the healing process used by the Aboriginal Healing Foundation in the cases of the residential school abuse. There are obvious connections between victims of residential school abuse and abuse by members of the Church. The Church that is referenced here is mainly the Roman Catholic Church, although certain cases involve pastors of sects of Christianity. In both cases, the victims are children who are taken advantage of by authority figures and then left alone to deal with the consequences. The vulnerability of children makes them targets for sexual predators. Members of the church with these perverse desires are constantly in contact with the children of their parish, and there is a large amount of trust vested in them by the community. This trust is often a cause of stress for victims, as they are now speaking out against a respected member of society. Many, if not all sexual abuse victims experience trauma resulting from their experience. Unresolved trauma in victims will often cause them to feel unsafe in times of security, and can sometimes result in post-traumatic stress disorder.3 Although this analysis was performed by the Aboriginal Healing Foundation for residential school victims, it can apply to sexual abuse victims in general. Residential school victims were told they deserved the abuse, and as a result, these individuals lost the ability to trust others. Before healing can be 2 Dokecki, Paul R, The Clergy Sexual Abuse Crisis, (Washington D.C: Georgetown University Press, 2004) at 20. 3 Supra note 1.


2011

Victim-Offender Mediation for Victims of Sexual Abuse

17

completed, the victim needs to be re-empowered through the restoration of control.4 Re-empowerment is a concept also found in the transformative approach to mediation; it pertains to the idea of strengthening oneself to make assertive reflections and choices, and to act according to this strength. Empowerment is the first step in assisting a victim of sexual abuse. This first step ensures that the victim feels as if he or she is in control of his or her own life. This occurs in the pre-mediation phase through active communication on behalf of both the victim and the mediator. The mediator must be aware of the victim’s emotional cues in this situation, in order to assess nonverbal signals as true indicators of a person’s feelings and emotions. In regards to such a sensitive issue, it is more appropriate to ask open-ended questions, as the mediator wants to prevent the victim from any additional suffering. The Aboriginal Healing Foundation published a series of research documents examining the residential school crisis, as well as ways to help the victims. Such documents examine cultural aspects of traditional First Nations healing and apply these techniques to aid victims of sexual abuse. A very holistic approach to healing is used: “non-interference and the value of holistic listening are paramount.”5 A method called the ‘Circle theory’ is used where members of the community gather around in a circle and each receives equal opportunities to share their stories. No one is excluded from these gatherings, and it is common for the Elders to ask children of their opinions regarding the stories shared. The purpose of these circles is to “re-connect individuals with the part of themselves that has been injured” by sharing their experiences in 4 Ibid. 5 Ibid. at 65.


18

Carleton University Journal of Legal Studies

Vol. III Issue 1

a voluntary, personal disclosure6. This is important to the Aboriginal culture, because an individual’s health is essential to the health of the community as a whole.7 The support of community members and families is vital to a person’s ability to overcome the emotional stress of a sexually-motivated crime. This concept of unity among people is a valuable component of the Aboriginal healing process, and echoes points made by Mark Umbreit in his description of humanistic mediation. He describes seven elements of humanistic mediation, many of which can be identified in the Aboriginal techniques. These components are as follows: the connectedness of all things and a common humanity; the importance of the mediator’s presence in effective conflict resolution; the healing power of mediation; the desire of people to live peacefully; the desire of people to grow through life experiences; the capacity of people to draw upon inner strength to overcome adversity; and the inherent dignity and self-determination arising from embracing conflict directly.8 Humanistic mediation is a holistic method of mediation, but the concepts can be easily applicable to cases of sexual abuse. Mediation has the ability to heal the participant and empower the individual. The Aboriginal Healing Foundation identifies psychological trauma as “an affliction of the powerless” and claims a holistic healing model should promote empowerment.9 Victims want nothing more than to live normal lives, but this becomes difficult when their ability to trust others is corrupted. Humanistic mediation is a more sensitive approach that needs to be utilized in such a situation, because the conflict 6 Ibid. at 66. 7 Ibid. 8 Umbreit, Mark S., The Handbook of Victim-offender Mediation, (San Francisco: Josey-Bass, 2001) at 4. 9 Supra note 1 at 72.


2011

Victim-Offender Mediation for Victims of Sexual Abuse

19

is more than merely a difference in opinions. A victim of sexual abuse has experienced a serious injustice that will seriously alter his or her future relations with other members of society. Victims of sexual assault in churches and parishes are mainly children, and often times these children are very young. Although this is a slight generalization, it is an important distinction to make. Young children are easy targets, especially for authority figures like those found in the Church. They are often coaxed or threatened into silence and denial. These feelings can be severe. In the residential school crisis there were many cases of post traumatic stress disorder, and many of these cases resulted from denied feelings of dejection. Denial is decisively damaging to mediation. If either of the parties refuses to acknowledge any wrongdoing, there is no chance for reconciliation. On many occasions, the Church has denied or covered up facts involving priests and sexual abuse cases, and often will opt to give monetary restitution instead of addressing the issue. However, money is not able to repair the extensive amount of emotional issues the child will experience for the rest of his or her life. Members of the residential schools have suffered greatly for years after the schooling, and feel intense emotions when encountering situations that remind them of their abused past. Another concern to be addressed before mediation can occur is the rationalization of the abuse. This rationalization can occur in two forms, either by the abuser or the victim. For example, an admitted abuser, Neil Conway, had convinced himself that he was doing no harm to the children he was abusing, because they were either poor or did not have fathers. He also claimed to feel


20

Carleton University Journal of Legal Studies

Vol. III Issue 1

a profound sense of love when he was abusing the children of his parish.10 The rationalization of an abuser is critically detrimental to the process of victimoffender mediation because there is no genuine desire for healing. The denial of wrongdoing by the offender would be a serious cause of re-victimization, and thus cannot be present if victim/offender mediation is to be successful. The other aspect of rationalization is that of the victim. Sometimes a victim of abuse will play down the abuse he or she has suffered, and often will suffer a heavy emotional burden as a result. “Not conscious of deliberate wrongdoing, the soul feels guilty without knowing why.”11 Feelings of helplessness are common, and as a defence mechanism the victim will rationalize his or her view by believing he or she is ‘better off ’ than other abuse victims as a form of survival for oneself.12 These emotions need to be addressed before a victim comes face to face with the offender, otherwise the person will not experience the true healing potential of the mediation process. If these factors are dealt with during the pre-mediation phase, the victim/offender mediation will have the possibility of success. First Nations healing circles have been known to employ a practice similar to mediation. If the abuser consents and genuinely wants to reconcile, the individual will be invited to join in on a healing circle with the victim. During these sessions, participants are encouraged to disclose any problems or stories in a supportive environment. A supportive atmosphere is a large component of the Aboriginal tradition, and their style of discussion resembles that of a so10 Cozzons, Donald, Sacred Silence: Denial and the Crisis in the Church (Collegeville: Liturgical Press, 2002) at 33. 11 Ibid. at 28. 12 Supra note 10.


2011

Victim-Offender Mediation for Victims of Sexual Abuse

21

cial network mediator. A respected member of the community, as in an Elder, will facilitate discussions by all people in the group. The concept of collective insights is an important part of the Aboriginal tradition. Insights are a powerful tool when it comes to understanding victims. These insights are “personal acts of understanding that come from responses to questioning, imagining, sensing, remembering, and feeling.”13 Insights for victim/offender mediation may include the victim realising the true remorse felt by the abuser, or the abuser realising the tremendous emotional pain that he or she afflicted upon the victim. Insight mediation uses a relational view of conflict. This type of mediation is meant to be a self-empowering process emphasizing self-determination and interconnectedness.14 The most effective method to victim/offender mediation in sexual abuse cases would be a hybrid of transformative and insight mediation, with emphasis on the concepts presented in humanistic mediation. The goal is to promote the well-being of the victim by way of insight, and in turn bring on a transformation of attitude and perception. If the mediation is successful, the victim should experience reduced levels of emotional stress and impairment, and the abuser should feel genuine empathy for the victim. One participant of the Frontline Worker Retreat (Aboriginal Healing Retreat) in the year 2000 describes traditional teachings as including components of “behaviour modification, cognitive therapy and narrative therapy.”15 Basically, through the use of narratives, victims are able to ease their emotional troubles and modify their 13 Bishop, P. et al., The Art and Science of Mediation, (Toronto: Edmond Montogomery Publications Limited, 2004) at 122. 14 Ibid. at 120. 15 Supra note 1 at 65.


Carleton University Journal of Legal Studies

22

Vol. III Issue 1

behaviours in a beneficial manner. Re-victimization is one of the greatest threats present in victim-offender mediation. “Re-victimization refers to conditions or circumstances, whether intended or unintended, that replicate in whole or part the original abuse.�16 Re-victimization is a prominent danger of victim/offender mediation, because the mere image of the abuser can cause painful recollections for abused victims. These are all important factors to consider before participating in victim/ offender mediation, as the last thing the mediator wants to do is re-victimize the individual. Victims of sexual abuse are different from other victims of crime and must be treated as such. A victim of theft is not going to experience the same emotional burden as a physically and psychologically abused person. For decades, the Catholic Church has dealt with cases of abuse by clergy members by providing monetary support to victims and their families. Security of the person is a protected right in Canada, and no sum of money can fully reimburse the loss of such a right. The Church does have a victim support network; however, this network is often criticized and rarely heals the victim. For example, one teenage boy was abused by his priest; however, no action was taken to assist the victim. The Church later paid ten thousand dollars each to his family as well as the families of two other victims. This monetary restitution only occurred after two additional abuses occurred.17 As mentioned earlier, monetary restitution can never fully compensate victims. Thousands of children have experienced serious emotional and spiri16 Supra note 1 at 61. 17 Supra note 2 at 21.


2011

Victim-Offender Mediation for Victims of Sexual Abuse

23

tual harm, of which no amount can truly repair. In Boston, admitted child molester, Father John Geoghan was convicted of abusing a ten year old boy in criminal court. Sequentially, approximately 130 victims came forward in several civil suits, and eventually cost the Church hundreds of millions in settlements.18 The sheer numbers of victims created by the Church are overwhelming: “tens of thousands of cases of clergy abuse have been recorded and verified.�19 With such high numbers and the ineffectiveness of monetary settlements, there is a demand for a process of holistic healing for victims. Fundamental issues in the Church structure may be argued here, however, the focus here is placed on the treatment of victims. One Aboriginal method for healing is the reversal of the small daily acts of humiliation: instead, giving small, daily acts of kindness and support.20 If all the conditions are right for victim/offender mediation, as determined by the mediator in the pre-mediation phase, it can have many healing properties for both the victim and the abuser. Mediation can help ease intense, negative emotions the victims have bottled up, and can provide some closure if facilitated correctly. It allows them to express all the feelings and perceptions directly to the offender, and gives victims an opportunity to face the cause of their distress. The pre-mediation phase is much more important in victim/ offender mediation, especially for victims of sexual abuse. The victims need a supportive environment to share their stories, and initial counselling allows individuals to feel and express their emotions safely. A question that rises is the length of time to wait before mediation occurs. 18 Supra note 10 at 89. 19 Ibid. at 91. 20 Supra note 1 at 73.


Carleton University Journal of Legal Studies

24

Vol. III Issue 1

Obviously, mediation cannot occur soon after the abuse, and in many cases children will not discuss details of an abuse until years later. There needs to be a period of personal reflection and healing in a supportive environment before any actual face-to-face interaction occurs. The Aboriginal Healing Foundation describes the process which occurs before the victim meets the abuser and gives a rough estimate of the time periods required for each step. The process begins with the consent of the abuser to meet with the victim in front of a mediator, although this step does not occur until later. The next step is to assess the authenticity of the abuser’s commitment to make amends; a process which takes at least four months to complete.21 This is a critical step to begin the mediation process, as an insincere commitment can easily backfire and re-victimize the person. This is followed by three to five years of circle therapy, facilitated by respected members of the Aboriginal community, to break the silence and denial which previously dominated the situation. Relatives are invited to participate, be it the families of the victim, abuser or affected community members in general. Each person is invited to share personal stories and experiences with the idea of honest disclosure as a medium for healthy recovery. Conflict in cases of sexual abuse by members of authority is a more complex occurrence than regular conflict. The reason for this is the difficulty in finding common interests between the victim and the offender. The victim experiences an entirely different set of emotions and perceptions leading up to the mediation. However, this does not mean a common ground cannot be identified. If the abuser genuinely seeks reconciliation and experiences remorse and empathy for the victim, it can prove to be beneficial for both the 21 Ibid. at 83.


Victim-Offender Mediation for Victims of Sexual Abuse

2011

25

victim and the abuser. The Aboriginal Healing method describes healing as a process which occurs for both the teacher and the listener. One difference that should be noted between victims of the residential schools and victims of clergy abuse is the culture behind the abuse. Aboriginal children, although forced through horrible conditions, are able to turn to the traditions native to their culture. These children were abused by a culture other than their own, and although damaging, their cultural background helps them to overcome such emotional pain. Victims of abuse by church officials are abused in their own traditional system. Many victims, who would turn to the church for support in most cases, are now unable to. Such a distinction does not imply that victims abused by church officials cannot borrow concepts from the Aboriginal system. However, there are times when mediation does not work. The mediator needs to understand that each victim of abuse interprets trauma differently and then respond accordingly. Some victims of abuse simply will not benefit from victim/offender mediation. In such cases, the victim needs to undergo other types of healing such as counselling. The differences in circumstances may cause the mediator to use different techniques. For example, the mediator may choose to use narrative rather than transformative or insight mediation. Victim/offender mediation has merit in cases of sexual abuse by clergy members. Like any victim/offender mediation, it must be meticulously planned out to avoid re-victimization and must contain elements of consent and honest disclosure. This type of conflict is complex and requires the active participation of both parties and the desire to achieve a resolution. The reso-


26

Carleton University Journal of Legal Studies

Vol. III Issue 1

lution exists in the form of reduced emotional stress and repair to the victim’s sense of trust and security. This outcome is not impossible to reach, however, if the pre-mediation stage is not sufficiently researched and examined, it can prove to be detrimental to the victim. With proper safeguards, sexual abuse victims can benefit greatly from victim/offender mediation. However, without such safeguards, there is no way we can allow victims of sexual crimes to be re-exposed to their abusers.


2011

Victim-Offender Mediation for Victims of Sexual Abuse

27

References Aboriginal Healing Foundation, Reclaiming Connections: Understanding residential school trauma among Aboriginal people: a resource manual, (Ottawa: Aboriginal Healing Foundation, 2005) Cozzons, Donald, Sacred Silence: Denial and the Crisis in the Church,( Collegeville, Minnesota: Liturgical Press, 2002) Dokecki, Paul R, The Clergy Sexual Abuse Crisis, (Washington D.C: Georgetown University Press, 2004) Picard, C., Bishop, P. et al., The Art and Science of Mediation, (Toronto: Edmond Montogomery Publications Limited, 2004) Umbreit, Mark S., The Handbook of Victim-offender Mediation, (San Francisco: Josey-Bass, 2001)


Carleton University Journal of Legal Studies

28

Vol. III Issue 1

Organ Donation Sarah Livermore Given the importance of the principle of autonomy and respect for the sanctity of life, can the concept of “presumed consent” be utilised in order to increase organ donation, without violating the Canadian Charter of Rights and Freedoms? In Ontario alone, there are 1,473 individuals waiting for organs, however as of March 2011 there have been only 176 organ transplants. Focusing on Charter sections 7 and 15, this paper examines the concepts of informed and presumed, consent with respect to organ donation. Specifically, does the concept of presumed consent violate sections 7 and 15, and if so, can they be “saved” under section 1? If a violation is found, this paper will then apply the Oakes test to determine if the violations can be justified under section 1 of the Charter. This paper concludes that the concept of presumed consent violates the Charter and cannot be saved under section 1. The Canadian parliamentary and legal systems have accorded their highest priority to issues involving the sanctity of human life. By way of example, we need look no further than legislation governing criminal offences against the person such as murder. Yet, the sanctity of human life also entails the ability to make decisions regarding one’s own body without intervention or interference from the state or state actors. Thus, choices concerning one’s own fate


Organ Donation

2011

29

fall within the realm of human rights and a common respect for the sanctity of human life. Given the importance of individual choice, is it possible to reconcile this principle of autonomy with a critical policy issue in Canada’s medical community, namely, an inadequate supply of donated organs? The need for organs continues to exceed the numbers of organs donated. Currently, potential donors must indicate proactively their willingness to have their organs procured when they die. For example, in Ontario, potential candidates must sign a “Gift of Life” donor card to indicate that they wish to donate organs after death. But despite the medical community’s best efforts and advances in technology, organ shortages persist. In Ontario alone, there are 1,473 individuals waiting for organs and only 176 organ transplants have been performed since January 2011.1 Informed consent remains the basis of the current organ donation system in Canada, whereby each individual proactively decides whether his or her organs may be procured for use in transplants to others. An alternative system that could increase the availability of organs is one based upon “presumed consent”. Under this system, organs are “presumed” to be available for procurement upon the death of the potential candidate unless donors indicate otherwise. If presumed consent were adopted as the preferred method of determining organ donation, the result could be an increase in the number of providers and recipients, and a change in survival rates for those patients with critical illnesses. Therefore consideration must be given to whether or not presumed consent would violate the Canadian Charter 1 Trillium Gift of Life Network, “Statistics” online: The Trillium Gift of Life Network <http://w w w.giftof life.on.ca/page.cf m?id=93C7F131-0C19-48D7-BBB CD444069B220A>.


30

Carleton University Journal of Legal Studies

Vol. III Issue 1

of Rights and Freedoms.2 This paper will undertake a Charter analysis concerning the differences between “informed” and “presumed” consent with respect to organ donation in Canada. It will focus specifically on Ontario’s organ registry legislation and the Trillium Gift of Life Act, which has put in place a legal framework for presumed consent organ donation.3 For the purposes of this paper, “organ donation” will mean “cadaveric organ donation”, unless explicitly stated otherwise. Although organs can also be obtained through living donors, it will not be the focus of this paper. Relevant Charter Sections

Section 7 Analysis The relevant Canadian Charter of Rights and Freedoms sections concerning organ donation and consent are 7 and 15.4 Section 7 of the Charter states everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.5

The decision in Rodriguez v. British Columbia further aids this paper by providing a definition personal autonomy, as well as its limitations and requirements.6 Ms. Rodriguez suffered from a debilitating disorder - Amyotrophic Lateral Sclerosis (ALS) - that would ultimately be terminal (ALS is also known 2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [Charter]. 3 Trillium Gift of Life Network Act, R.S.O.1990, c. H-20 [Gift of Life Act] (WL eC). 4 Supra., note 2 at s.2 (a), (b). 5 Supra., note 2 at s.7. 6 Rodriguez v. British Columbia, [1993] 3 S.C.R. 519 [Rodriguez] (WL eC).


Organ Donation

2011

31

as Lou Gehrig’s disease.) Ms. Rodriguez wanted assistance to end her life, as the ALS would render her physically unable, unless performed prior to losing motor function and control. However, she wished to have legal protection for those who would assist her, In reaching its decision, the Supreme Court of Canada (SCC) determined that arriving at a decision under section 7 requires two levels of analysis: the first level of analysis determines the values at stake with respect to the individual, while the second level is “concerned with possible limitations of those values when considered in conformity with fundamental justice.”7 In other words, the rights of the individual must be balanced against the interests of society as a whole. The court found in Rodriguez that the claimant’s section 7 rights were not violated by Criminal Code provisions which denied her the right to take her own life.8 While recognizing the dilemma in which she found herself, the court found that, while balancing her right to choose how to end her life with the protection of society, there was the potential of a “slippery slope” effect. Meaning, allowing Ms. Rodriguez to have assistance in ending her life could possibly lead to others in similar physical or mental capacities having their lives ended. This is due to their own quality of life considerations, rather than concern for the concept of life itself. The SCC further determined that section 7 is intrinsically linked to the well-being of the person and therefore conflicts with the legality of taking one’s own life. Rodriguez also more closely defined a previous court decision, 7 Ibid., at 12. 8 Criminal Code, R.S.C. 1985, c. C-46, s.241.


32

Carleton University Journal of Legal Studies

Vol. III Issue 1

Malette, by stating that assisted suicide is not consistent with the fundamental rights of Canadian society.9 In Malette the court held that the “right to determine what shall be done with one’s own body is a fundamental right in our society and that the concepts inherent in this right are the principles [upon which] self-determination and individual autonomy are based.”10 However, Rodriguez more strictly defined individual autonomy, affirming that the interests of society in general counter-balance individual interests in matters relating to end of life issues. Section 15 Analysis Section 15, subsection 1 of the Charter pertains to equality. It states: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.11

The purpose of section 15, as discussed in Law v. Canada is described as: To prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping or prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect, and consideration.12

The relevancy of Section 15 to the organ donation issue is that, in counter to the potential suggestion that in order to decrease the number of people waiting on transplant lists, there should be restrictions in place prohibiting certain types of individuals receiving organ transplants. Those people might 9 Malette v. Shulman, [1991] 2 Med. L.R. 162 [Malette] (WL eC). 10 Ibid., at 17. 11 Supra., note 2 at s.15(1). Note: Subsection 15(2) – relating to affirmative action – does not pertain to this article and therefore will not be discussed. 12 Law v. Canada, [1999] 1 S.C.R. 497 [Law] (WL eC) at 51.


Organ Donation

2011

33

possibly include criminals, alcoholics, smokers, the elderly and the very young (infants, etc.). Denying specific individuals and groups access to organ transplants, based on age, previous criminal histories, affliction to certain diseases or personal habits (smoking, etc.), would qualify as discriminatory and would violate section 15 of the Charter. A selection process based upon fitness might limit organs to those who have the best viability of surviving the procedure and living a healthy and long life. However that criterion encounters similar legal problems as profiling based on individual characteristics. Refusing organs to those who have committed, or are currently serving a sentence for having committed an offence, is referred to as “medical justice”.13 Medical justice is the refusal of medical treatment to someone based on a nonmedical calculation of who can and does contribute to society. Medical justice runs contrary to the physician’s oath; it undermines the patient-physician relationship, and it requires that physicians make decisions by calculating the perceived social worth of their patients.14 Excluding prisoners from organ transplant lists would punish them further than the law mandates, and thus it would be a legal injustice.15 Prohibiting persons that have alcohol, smoking or drug dependencies are also problematic. The medical community sees alcoholism as a disease,16 while others view it as a manifestation of psychological problems. Some might argue that physicians should be given the right to take these factors into account 13 Lawrence J. Schneiderman and Nancy S. Jecker, “Should a Criminal Receive a Heart Transplant? Medical Justice vs. Societal Justice” (1996) 17 Theoretical Medicine 33 at 36. 14 Ibid., at 36. 15 Geneva Conventions Act, R.S., 1985, c. G-3. 16 American Medical Association, “Definitions H-30.995”, online: AMA < http://www.ama assn.org/ama1/pub/upload/mm/388/alcoholism_treatable.pdf>.


34

Carleton University Journal of Legal Studies

Vol. III Issue 1

in the organ transplant selection process, since decisions could be difficult to reach as primacy is placed on the sanctity of life. Therefore, eliminating groups of people from receiving transplanted organs, based on their previous medical status, age, or criminal history, would be discriminatory and could be found to violate section 15 of the Charter. It should be noted however that omitting the elderly and the very young, for example, from receiving organs is done regularly by the medical community. Typically based upon the prospects of viability for the recipient and for the organ itself, physicians must often determine if the recipient will survive the transplant and whether the organ will be rejected. The latter can be slightly controlled by using immuno-suppressant drugs to prevent the body from rejecting the new organs.17 These, however, are medical considerations rather than the broader social considerations cited above. Law v. Canada also held that three issues are involved in the interpretation of section 15 of the Charter. Those issues are as follows: whether a law imposes different treatment on one person or group of people versus society as a whole in purpose or effect; whether one or more specified or related grounds of discrimination are the basis for the different treatment; and whether the law in question has a “purpose or effect that is discriminatory within the meaning to [sic] the equality guarantee.”18 In examining the issue of presumed consent, these three issues need to be addressed. A section 15 analysis invariably requires a comparison of the effect of the law on a group or individual in question, and the effect on society as a whole. This comparison requires the courts 17 Edna F. Einsiedel and Heather Ross, “Animal Spare Parts? A Canadian Public Consultation on Xenotransplantation” (2002) 8(4) Science and Engineering Ethics 579 at 580. 18 Ibid.


Organ Donation

2011

35

to make a determination of many relevant factors to the particular situation at hand.19 Informed Consent: Organ donation and the Charter The concept of informed consent was first laid down in the 1914 New York Court of Appeal’s case of Schloendorff v. Society of New York Hospital,20 which, although American in origin, has been applied significantly by Canadian courts. The concept of consent has historically been important because it negates the legal liability of medical personnel against possible charges of assault and battery when delivering medical treatment.21 In the case of organ transplants, consent to organ procurement can either be given by the living donor, if he or she is of legal age and is mentally competent to make such decisions, or by the person who has legal authority to give consent to cadaveric organ donation.22 Consent to organ donation is the same as consent to treatment; under the law, it is valid when four requirements are met: (1) the consent must be voluntary; (2) it must be given by a person with the capacity to consent; (3) it must refer to both the treatment and the provider of the treatment; and (4) it must be informed.23 In order for consent to be voluntary, it must be free from coercion and from undue influence, based upon an accurate understanding of the treatment. If there is any misrepresentation, any consequent consent is considered inval19 Ibid. 20 Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. Ct. App. 1914). 21 Bernard M. Dickens, “Informed Consent” in Jocelyn Downie et. al., eds., Canadian Health Law and Policy 2nd ed. (Toronto: Butterworths, 2002) 129. 22 Supra., note 3 at s.4-5. 23 Erin Nelson, “The Fundamentals of Consent” in Jocelyn Downie et. al., eds., Canadian Health Law and Policy 2nd ed. (Toronto: Butterworths, 2002) 111 at 120.


Carleton University Journal of Legal Studies

36

Vol. III Issue 1

id.24 (The medical staff must make clear what organ donation is and what is involved in the procurement of the organs.) For organ donation, consent can be either in “written form signed by the person at any time, or orally in the presence of a least two witnesses during the person’s last illness.”25 As well, the person consenting must have the capacity to consent, or have a competent guardian who is able to do so for them, provided that the approval is voluntary.26 Consent must be for the precise treatment being proposed. For organ donation, both physician and patient, or next of kin, must be fully aware of what is being consented to and what is not.27 For example, there may be times when certain organs are retrieved but not others. Parties must acknowledge who is going to perform the procedures and what is going to take place. Organ donation forbids any “physician who has had any association with the proposed [organ] recipient that might influence the physician’s judgment [to] take any part in the determination of death of the donor.”28 The Gift of Life Act also states that donation cannot take place when consent from the now-deceased individual may have been revoked, when there is uncertainty regarding consent to donate, or when the next of kin refuses donation.29 Informed consent also requires that the patient be notified of “material information” which speaks to “material risk”.30 In the case of living donors (i.e., liver, kidney, and bone marrow transplants), the possibilities could range from a risk of mild side 24 Ibid., at 120-21. 25 Supra., note 3 at s.4(1). 26 Supra., note 23 at 123. 27 Supra., note 3 at s.8.1(5) & (6). 28 Supra., note 3 at s.7(2). 29 Supra., note 3 at s.4(3) & 5(3). 30 Reibl v. Hughes, (1978), 89 D.L.R. (3d) 112 (Ont. C.A.) [Reibl] (WL eC) at 35.


Organ Donation

2011

37

effects such as soreness, bruising or infection, to remote risks such as paralysis and/or death.31 The Supreme Court of Canada examined in Riebl three potential standards for determining consent: medical, “subjective patient”, and “modified objective”. The SCC concluded that the medical standard was not an appropriate tool for achieving consent, for it allowed the medical community to decide what information physicians are required to disclose if there had been a breach of duty, similar to a self-evaluation model of oversight32 This was identified to be overly weighted towards the medical community, as medical staff was unlikely to raise possible breaches in duty of care. The “subjective patient” standard, in which the onus is placed upon the patient to understand what he or she needs to know in order to consent to a procedure, was also rejected by the SCC because it risked producing injustice. Patients were unlikely to have the medical knowledge required to render a competent decision regarding treatment. The Supreme Court of Canada accepted ultimately the “modified objective” standard, which holds that consent is based on what material information a reasonable person in the patient’s position would require in order to make a competent decision regarding treatment.33 This method continues to be used today as the standard of disclosure for consent in medical treatments, including organ donation.34 In practical terms, physicians must be informed about the patient and his or her individual needs, and patients must also inform physicians of any previous problems which may hinder treatment or cause dam31 Supra., note 21 at 131. 32 Supra., note 21 at 133-34. 33 Supra., note 21 at 134. 34 Supra., note 21 at 135.


38

Carleton University Journal of Legal Studies

Vol. III Issue 1

age.35 Irrespective of issues of consent, it should be noted that organ donation requires that organs be vetted for diseases, genetic abnormalities, toxins, etc. prior to transplantation. In summary, informed consent does not violate section 7 of the Charter because it addresses individual values, and does not limit a person’s values when confronted with the Charter’s fundamental rights. As well, informed consent does not violate section 15, because it allows every individual to be equal before the law when concerned with disclosure, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. There is no further need for a discussion of section one, as informed consent violates neither section 7 nor section 15 of the Charter. Therefore, both analyses above reveal that, as a legal doctrine, informed consent functions in accordance with fundamental rights and freedoms. However, in practical terms with respect to organ donations, shortages continue and lives remain in jeopardy. The question now arises: in order to allow for more transplants to save lives, can we implement a more aggressive donation system based on the concept of “presumed consent”? Moreover, does the concept of presumed consent violate sections 7 and 15 of the Charter? And if there is a violation, can it be justified under section one of the Charter? Presumed Consent: Organ donation and the Charter Presumed consent is a concept which assumes that, unless otherwise specified, authorization of action has been given. Under a system of presumed consent, organ donations would increase, as it has in Austria, where presumed 35 Supra., note 21 at 137.


2011

Organ Donation

39

consent has been in effect since 1982 resulting in the rates of donation quadrupling over eight years.36 Many countries using a presumed consent system have implemented opt-out provisions allowing persons to choose not to donate, by signing a non-donation card, or by removing their names from the state’s donor registry.37 Under this system, once consent has been revoked by opting-out, no one is allowed to override the person’s decision.38 In Canada, however, a system of presumed consent has yet to be implemented, as there remains a view that it would violate the Charter. To understand such a system in a Canadian context, the Gift of Life Act, Ontario’s organ donation and transplant legislation, will be examined to assess whether the current constitutional and legislative framework, supports the implementation of a system of presumed consent for organ donation can. First, can a system of presumed consent without an opting-out provision be used for organ donation? As well, can a presumed consent system of organ donation be saved by section one of the Charter, if presumed consent is found to violate the Charter? In order to determine if presumed consent violates section 7 of the Charter, one must ascertain if there is a perceived violation of section 7 using the two levels of analysis described previously. Section 7 Analysis As set forth in the Rodriguez case, the first level of analysis of section 7 36 Kenneth Gundle, “Presumed Consent for Organ Donation: Perspectives of Health Policy Specialists” (2004) 2(4) SURJ 28 at 28 37 Presumed Consent Foundation, Inc., “Solutions: Here’s How the System would work under Presumed Consent” online: Presumed Consent Foundation Inc. <http://www.presumedconsent.org/solutions.htm>. 38 Supra., note 3 at s.5(3).


40

Carleton University Journal of Legal Studies

Vol. III Issue 1

must establish if an individual’s values are being violated, in this instance, by the concept of presumed consent. In this case, presumed consent would be seen as removing the rights of individuals to make decisions regarding their own bodies. This of itself would be a classifiable violation of section 7, which is a safeguard of individual autonomy. The second level of analysis for section 7 concerns the possible limitations of the individual’s values when considered in relation to fundamental justice, recognized in Beatty as “an essential element of a system of administration of justice founded upon a belief in the dignity and worth of the human person and on the rule of law”.39 While the first level of analysis confirms a violation of section 7, the issue that remains is whether or not that violation could be counter-balanced in the second level of analysis by examining the presumed consent system in the context of benefits to society as a whole? Can, therefore, the concept of presumed consent be saved by considering fundamental justice? It is difficult to see how, without an opting-out provision, the dignity and worth of a human could be respected in applying the concept of presumed consent; section 7 of the Charter would be violated because the risks to an individual’s autonomy are greater than the potential benefits that accrue to society.40 Presumed consent replaces the requirement that the state ask for one’s organs, with a requirement that individuals take a proactive stance to protect their autonomy, without any guarantee that the individual has a complete understanding of the necessity of an op-out option.

39 R. v. Beatty, [2008] 1 S.C.R. 49 [Beatty] (WL eC) at 25. 40 Note: one potential benefit to society is substituting the health care cost of organ transplantation with the costs of sustaining an individual on dialysis, for instance.


Organ Donation

2011

41

Section 15 Analysis Under section 15 of the Charter, every person is equal before and under the law and cannot be discriminated against for reasons specified in the respective provision.41 As discussed above, there are three issues outlined in Law with respect to section 15 which must be analyzed to determine if the section has been violated.42 First, does the law impose different treatment on one person or group of people versus society as a whole through its purpose or effect? Presumed consent in fact does not impose differential treatment on one person or group of people because everyone is assumed to have consented to organ donation, and presumed consent does not distinguish between people or groups of people. Second, are there one or more specified or related groups of discrimination for the basis of the different treatment? As there is no different treatment, the second issue requires no further discussion. Third, does the law within the meaning of the equality guarantee, have a purpose or effect that is discriminatory? Presumed consent does not discriminate based on race, national or ethnic origin, colour, sex, age, and mental or physical disability. Without an opt-out clause however, it does constitute discrimination of religious beliefs because it prevents individuals or groups of people from practicing religious beliefs which prohibit certain types of medical interventions (for example, blood transfusions, which are virtually essential in organ transplant surgery). In effect, presumed consent without an opt-out clause violates the equality guarantee on the grounds of religious discrimination, and thus violates section 15 of the Charter. 41 Supra., note 2 s.15. 42 Supra., note 21 at 123.


Carleton University Journal of Legal Studies

42

Vol. III Issue 1

Section 1 Analysis Can a concept of presumed consent be justified under section 1 of the Charter? Section 1 of the Charter states: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.43

The “Oakes test”, which arose out of a Supreme Court of Canada case in 1986, is used to determine if legislation, once deemed a violation of the Charter, can be saved under section 1 of the Charter.44 The Oakes test is a two-step process. First, the objective of the legislation must be determined to be reasonable, pressing and substantial.45 Second, the legislation must not be discriminatory or antagonistic to the principles of fundamental justice. Therefore, can the objectives of presumed consent be said to be reasonable, pressing and substantial so as to overcome perceived violations of sections 7 and 15 of the Charter? The objective of presumed consent is to achieve a system where donation is assumed in order to increase the number of organs available for transplantation Can presumed consent be said to be reasonable, pressing and substantial? In this first part of the Oakes test, the objective of presumed consent is arguably reasonable, pressing and substantial, as hundreds of individuals urgently awaiting transplants could be saved using a system based on this concept. In 2008 alone, 215 people died waiting for an organ transplant;46 an increased 43 Supra., note 2 at s.1. 44 R. v. Oakes [1986] 1 S.C.R. 103 (WL eC). 45 Zaretski v. Saskatchewan, [1997] 8 W.W.R. 422 [Zaretski] (WL eC) at 57. 46 Organ & Tissue Donation and Transplantation, “Expert Engagement” Canadian Blood Services (31July 2010), online: Canadian Blood Services <http://www.ccdt.ca/english/ engage/index.htm>. Note: As well, it is predicted that organ donation will increase by 152% over the next two decades.


2011

Organ Donation

43

number of available organs could certainly have saved many of them. A counter-argument is that organ donation is not a pressing or important public policy issue, because all people eventually pass away from something; and organ failure is simply one of those ends. This can hardly be seen as a constructive and meaningful argument however, given the importance the Canadian legal system places on the sanctity of life, as highlighted previously. As such, using all possible legal measures to ensure the preservation of lives of those waiting for organs should be seen as pressing, substantial, and necessary. The second step in the Oakes test seeks to determine if the means by which the desired legislative or policy objective is achieved remains proportional and demonstrably justified; in other words, the second step is a proportionality test.47 First, it must be determined whether the means are rationally connected to the objective. Second, does the limitation of the legislation to the Charter right have a clear connection to Parliament’s objective? And finally, is the objective based on rational, fair and reasonable considerations?48 In this case, does presumed consent have a rational connection to Parliament’s objective to maintain and protect the sanctity of life? Presumed consent is based on rational considerations because it strictly adheres to the preservation of life by increasing the number of potential donors, thereby saving the lives of those awaiting transplants. However, while rational, the concept of presumed consent would fail on grounds of fairness and reasonableness, as it does not preserve individual decision-making processes with respect to organ donation. The concept is not fair to those persons of certain religious beliefs who might 47 Library of Parliament, “The Oakes Test” Parliament of Canada, online: Parliament of Canada <http://www.parl.gc.ca/information/library/PRBpubs/bp402-e.htm#atheoakestest>. 48 Ibid.


Carleton University Journal of Legal Studies

44

Vol. III Issue 1

be harmed under a system based on this concept, as demonstrated through the analysis of section 15. As well, presumed consent is not reasonable, because other systems could be visualized for achieving the same policy objective without the same degree of harm. With respect to the second sub-step, “the means, even if rationally connected to the objective in this first [sub-step], should impair “as little as possible” the right or freedom in question.”49 In other words, can there be a minimal impairment of Charter sections 7 and 15? Are there possible alternative models to further the objectives of preserving the sanctity of life and increasing the number of organ donations, by infringing on rights to a lesser extent? The infringements of presumed consent in relation to sections 7 and 15 extend beyond minimal impairment” and therefore are not justified under this sub-test. The current system based on informed consent provides an adequate alternative mode of addressing the objective of preserving life, without compromising individual autonomy. The weight of the current argument in favour of presumed consent is therefore not strong enough to justify the impairment involved in the second sub-step of the Oakes test. Finally, with respect to the third sub-step, there must be “proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance.’”50 Is the objective proportional to the effects of the law? Does the benefit to be derived outweigh the seriousness of the infringement? Does the legislation produce such severe effects as to make the infringe49 Ibid. 50 Ibid.


2011

Organ Donation

45

ment unjustifiable? The “effects must not so severely [infringe] on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.”51 Are the effects of a system based on the concept of presumed consent proportional to the objectives of organ donation? Under the third sub-step, it is difficult to justify presumed consent for it results in a major infringement on personal autonomy which is not counterbalanced by the possible importance of the benefits to society. In addition, there is an acceptable model in place which involves a lesser degree of infringement. Under the current legislative framework for organ donation, there is a requirement for informed decision-making to take place when deciding to donate one’s organs or the organs of a family member.52 Presumed consent removes the element of choice and opens the door to various negative effects, including possible infringements of rights, such as discrimination based on religion under section 15 of the Charter. A system of organ donation based on presumed consent could not be justified under section 1 of the Charter as it fails in the proportionality test. This is so primarily because there is already a system in place that does not infringe upon section 7 and 15 rights. Furthermore, the perceived benefits would not be proportional to the legislative objectives and effects. While Justice Dickson noted that the, “Oakes test should be used with a modicum of restraint,”53 the concept of presumed consent is more than a minimal infringement of rights under the Oakes test. While the current system based on informed consent is valid and justifiable, the alternative of presumed consent cannot be saved 51 R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at p.768. 52 Supra., note 3 at s.3(1), 4(1)(a)-(b). 53 Lavigne v. O.P.S.E.U., [1991] 2 S.C.R. 211 (WL eC) at 278.


Carleton University Journal of Legal Studies

46

Vol. III Issue 1

under section 1. Presumed Consent with an Opting-out Clause If presumed consent on its own is invalid, can the concept be saved with the use of an opt-out clause? In a system where organs are presumed to be donated, a provision enabling people the opportunity to opt-out allows the ability to exercise personal autonomy. Those choosing not to donate would demonstrate their lack of consent through written authorization, for instance, by signing a non-donor card and by opting out of their provincial or national donor registry.54 As well, once consent has been revoked under an opt-out clause, no one other than the individual himself or herself would be allowed to override the decision.55 The inability to override a person’s decision would be similar to the current system of consent.56 Section 7 Analysis In examining section 7 using the first level of analysis, an opt-out clause for the system of presumed consent would indeed safeguard individual values. Can an opting-out clause save section 7 when we examine it in light of the second level of analysis? Can the possible infringements of individual values, when considered in relation to fundamental justice, be over-ridden with an opt-out clause? In this respect, an opt-out clause allows the final decision con54 Presumed Consent Foundation, Inc., “Solutions: Here’s How the System would work under Presumed Consent” online: Presumed Consent Foundation Inc. <http://www. presumedconsent.org/solutions.htm>. Note: any reference to provincial registries also signify territorial registries as well. 55 Note: issues concerning power of attorney or guardian ad litem may arise, but would need to be addressed on a case-by-case basis. 56 Supra., note 3 at s.5(3).


2011

Organ Donation

47

cerning organ donation to be made by the individual. As such, individuals retain the autonomous choice to revoke consent under this concept. Thus, upon examining the second level of analysis of section 7, it appears that an opt-out clause could save the concept of presumed consent. Section 15 Analysis Does the opt-out clause constitute an infringement of section 15 of the Charter when one examines the three issues identified in Law v. Canada? With respect to the first issue, does the opt-out clause enable differential treatment of one person or group of people versus society as a whole through its purpose or effect? Presumed consent with an opt-out clause would appear on its surface to infringe upon the rights of those with a mental disability, as they may be unable to render a competent decision regarding the donation of their organs. On the second issue, is there discrimination of one or more groups based on different treatment? Although it is true that all groups are treated equally as a policy objective, not all groups are treated equally in effect. Mentally-disabled persons may not understand how to register their non-consent. Furthermore, with an opt-out clause, a decision is inevitably linked to individual competency to render a clear decision. It therefore appears that there is an infringement of section 15 rights, by way of this analysis. With respect to the third issue in a section 15 analysis, consideration must be given to whether the opt-out clause, within the meaning of the â&#x20AC;&#x2DC;equality guaranteeâ&#x20AC;&#x2122;, has a purpose or effect that is discriminatory? Though the opt-out clause does not have a purpose that is discriminatory, it does have practical difficulties, some of which includes: the problem of maintaining up-to-date databases, confusion over identities of dif-


Carleton University Journal of Legal Studies

48

Vol. III Issue 1

ferent persons, and accidents such as failing to check the non-donor list prior to procurement. The effect, therefore, of inadvertently donating an individualâ&#x20AC;&#x2122;s organs contrary to his or her values is a section 15 infringement, and as a result, even with an opt-out clause, a system of presumed consent violates section 15 of the Charter. Section 1 Analysis Even with the violations of section 15, can a presumed consent system with an opt-out clause be saved under the Charterâ&#x20AC;&#x2122;s section 1 Oakes test? Here, consideration must be given With respect to the first step in an examination of the Oakes test of section 1, is the objective of the concept using an opt-out clause reasonable, pressing and substantial? An opt-out clause cannot be said to be reasonable because there is still a potential risk of organs being donated inadvertently against the wishes of an individual, thereby violating the autonomy of those who have chosen not to donate organs. While the objective of procuring organs is pressing and substantial, it is not so important so as to override someoneâ&#x20AC;&#x2122;s autonomous right to make decisions regarding their body. The second step of the Oakes test, the proportionality test, seeks to determine whether the opt-out clause is proportional and can be demonstrably justified, through a three step process. Firstly, step, are the objectives of any opt-out clause rational, reasonable and fair? While increasing the number of organs available for transplantation and enabling individuals to make the final determination regarding organ donation are rational objectives, it is unreasonable and hence unfair to assume that all persons will be able to make competent decisions. The opt-out clause would not, in this case, save a system based


Organ Donation

2011

49

upon presumed consent. As to the second step, do the means of the opt-out clause infringe the autonomy of individuals as little as possible s? While the opt-out clause may be a reasonable way of administering organ donation, it places disproportionate weight on those choosing not to donate. Under a presumed consent system with an opt-out clause, a voluntary process is changed into a system in which a non-donor has an obligation to undertake and maintain all of the steps necessary in confirming their autonomous wishes. Therefore, under this analysis, an opt-out clause cannot save the use of presumed consent. With respect to the third step, relating to the effects of the measure, does the benefit of allowing people to make a choice to refrain from donating outweigh the seriousness of a section 15 infringement? Some would argue that the benefits of a system based on presumed consent with an opt-out clause would be much better than solely informed consent. While the effects may be significant, cannot be determined now with any certainty. Moreover, the effects, however significant, would not outweigh the possible infringements of section 15 rights. Unintentionally transplanting an organ violates the principle of the preservation of autonomous decision-making. An opt-out clause cannot, therefore, save the concept of presumed consent under section one of the Charter. Conclusion Sections 7 and 15 of the Canadian Charter of Rights and Freedoms mandates specific analyses to determine whether these clauses are or have been violated by the different types of organ donation systems highlighted in this


50

Carleton University Journal of Legal Studies

Vol. III Issue 1

paper... Section 7 requires a two-level analysis to determine a violation of life, liberty and security of the person. Section 15 requires an examination of three issues in order to ascertain whether there has been a violation of the equality guarantee. Under the current system of organ donation, consent must be informed. The concept of consent is met by four requirements (1) the consent must be voluntary; (2) it must be given by a person with the capacity to consent; (3) it must refer to both the treatment and the provider of the treatment; and (4) it must be informed. With the alternative system of presumed consent, there is the possibility of including an opt-out clause, whereby individuals choosing not to donate their organs can acknowledge their non-consent. However, it has been determined that the system of presumed consent violates the Charter as it places the weight of obligation on individuals who are supposed to have an autonomous right to make decisions regarding their own organs. This could be especially difficult for persons who have mental disabilities and may be unable to make competent decisions due to a lack of comprehension about the possible processes involved in signifying their non-consent. It also places the weight of obligation on some religious sects to take steps in defence of their particular beliefs that others would not be required to do. Informed consent, comparatively, respects individual values. As argued in this paper, presumed consent is not safe guarded because it violates the Charter. Presumed consent infringes on the most important requirement of informed consent, namely, that it be voluntary. Increasing the number of organs procured for transplant is an important medical and societal issue. While presumed consent might appear to be


2011

Organ Donation

51

a logical approach to address this issue, this paper argues that this concept contravenes certain rights and freedoms in the Charter. It is possible that some will attempt to use this model with additional modifications to make it more acceptable. Educational components could be provided to increase awareness of organ donation, and would provide a way of connecting with individuals in order to inform them about how to exercise their autonomy and demonstrate their lack of consent. Legislation could be constructed to make special provisions for those individuals who are considered unable to make decisions regarding donation. These persons might not be included in a system of presumed consent.57 Measures such as this however, are insufficient to meet the main issues. As such, presumed consent is likely to remain a violation of the Charter, despite any modifications. The challenge that exists today does not necessitate changing the current system; rather, the challenge lies in making the current system – based on informed consent – achieve more substantial results. The key to carrying out this change is information and education. The Canadian Council for Donation and Transplantation (CCDT), Canada’s national organ registry, established in August, 2008, should campaign in favour of obtaining signed donor cards and registering individuals in donor registries. One avenue for the CCDT would be to approach new drivers and persons about to renew drivers’ licenses with information about organ donation, emphasizing programs of social awareness, and the need for specific cultural sub-groups.58 The onus for signifying 57 Note: a panel of legal and medical experts could be convened to determine a list of requirements for mental incapacity. 58 Note: certain cultural sub-groups have specific requirements to obtain blood, tissue and organ transplants due to biological factors.


52

Carleton University Journal of Legal Studies

Vol. III Issue 1

consent to organ donation should remain as is, namely, under our system of informed consent. The current system however can and should be improved. There is no reason why Canadians cannot be made more aware of the importance of this issue. Further, there is no reason to believe that more individuals would not respond to requests for organ donation, if given the information and the opportunity.


2011

Organ Donation

53

References

Primary Resources Legislation CANADA Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. Criminal Code, R.S.C. 1985, c. C-46. Geneva Conventions Act, R.S., 1985, c. G-3. Trillium Gift of Life Network Act, R.S.O.1990, c. H-20 [Gift of Life Act] (WL eC). Jurisprudence CANADA Lavigne v. O.P.S.E.U., [1991] 2 S.C.R. 211 (WL eC) at 278. Law v. Canada, [1999] 1 S.C.R. 497 [Law] (WL eC). Malette v. Shulman, [1991] 2 Med. L.R. 162 [Malette] (WL eC). R. v. Beatty, [2008] 1 S.C.R. 49 [Beatty] (WL eC). R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. R. v. Oakes [1986] 1 S.C.R. 103 (WL eC). Reibl v. Hughes, (1978), 89 D.L.R. (3d) 112 (Ont. C.A.) [Reibl] (WL eC). Rodriguez v. British Columbia, [1993] 3 S.C.R. 519 [Rodriguez] (WL eC). Zaretski v. Saskatchewan, [1997] 8 W.W.R. 422 [Zaretski] (WL eC).

International Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. Ct. App. 1914).


54

Carleton University Journal of Legal Studies

Vol. III Issue 1

Secondary Materials Articles Einsiedel, Edna F. and Heather Ross. “Animal Spare Parts? A Canadian Public Consultation on Xenotransplantation” (2002) 8 Science and Engineering Ethics 579-592. Gundle, Kenneth. “Presumed Consent for Organ Donation: Perspectives of Health Policy Specialists” (2004) 2(4) SURJ 28-32. Schneiderman, Lawrence J. and Nancy S. Jecker, “Should a Criminal Receive a Heart Transplant? Medical Justice vs. Societal Justice” (1996) 17 Theoretical Medicine 33-44. Government Documents Library of Parliament, “The Oakes Test” Parliament of Canada, online: Parliament of Canada <http://www.parl.gc.ca/information/library/PRBpubs/ bp402-e.htm#atheoakestest>. Organ & Tissue Donation and Transplantation, “Expert Engagement” Canadian Blood Services (31July 2010), online: Canadian Blood Services <http:// www.ccdt.ca/english/engage/index.htm>. Trillium Gift of Life Network, “Statistics”, online: The Trillium Gift of Life Network <http://www.giftoflife.on.ca/page.cfm?id=93C7F131-0C19-48D7BBBC-D444069B220A>. Books Dickens, Bernard M., “Informed Consent” in Jocelyn Downie et. al., eds., Canadian Health Law and Policy 2nd ed. (Toronto: Butterworths, 2002) 129. Nelson, Erin. “The Fundamentals of Consent” in Jocelyn Downie et. al., eds., Canadian Health Law and Policy 2nd ed. (Toronto: Butterworths, 2002) 111. Other


2011

Organ Donation

55

American Medical Association, “Definitions H-30.995”, online: AMA <http:// www.ama-assn.org/ama1/pub/upload/mm/388/alcoholism_treatable. pdf>. Presumed Consent Foundation, Inc., “Solutions: Here’s How the System would work under Presumed Consent”, online: Presumed Consent Foundation Inc. <http://www.presumedconsent.org/solutions.htm>.


56

Carleton University Journal of Legal Studies

Vol. III Issue 1

The Varied Reaction to HST Legislation in Ontario and British Columbia: A Public Discourse Analysis Michael De Luca

This article examines the HST legislation that Ontario and British Columbia implemented on July 1, 2010 and the subsequent varied reactions of the citizens of those provinces to the legislation. The article utilizes a discourse analysis of national print media to draw conclusions about these reactions. The research demonstrates that the imposition of the HST is an adequate measure to improve the economic situation of Ontario and British Columbia. However, citizen opposition will always be present due to misperceptions of the intent of the tax. The discourse analysis reveals five major contributors to the varying reactions to the imposition of the HST legislation: 1) The failure of the British Columbia government to take proper steps prior to the implementation of the HST to ensure it would be adopted with minimal opposition from the citizenry; 2) Premier Gordon Campbellâ&#x20AC;&#x2122;s introduction of the HST immediately after he campaigned against it during an election; 3) The higher level of importance given to provincial politics in British Columbia as opposed to Ontario; 4) The role of political opposition in speaking out against the HST in Ontario and British Columbia; and 5) British Columbiaâ&#x20AC;&#x2122;s implementation of the HST coupled with its already existent carbon tax.


The Varying Reaction to HST Legislation

2011

57

T

he move towards the harmonization of the provincial and federal sales taxes has become a trend in Canada. In a period of a global economic crisis, provincial governments have assessed

their positions and found tax harmonization as a solution to ravaged provincial economies. Economists and politicians generally accept tax harmonization as a means to improve economic conditions. Contrarily, the citizenry of the provinces generally oppose the implementation of a harmonized sales tax (HST) because they fail to see the benefits of such a measure.

The question being examined in this article is why public reaction to

the HST was dramatically different in the cases of Ontario and British Columbia. New laws in Ontario and British Columbia, which established a system of a harmonized sales tax, came into effect on July 1, 2010 in both provinces. As such, there has been a limited amount of academic inquiry and analysis of the new tax system in these provinces. In this study, a public discourse analysis has been utilized, analyzing the dialect of three prominent national newspapers in attempt to understand the underlying reasons for the variation in public reaction to the HST between Ontario and British Columbia.

An analysis of public discourse surrounding public reaction to the HST

in Ontario and British Columbia exposed numerous factors pertaining to the varying reactions in these provinces. An accurate interpretation of the discourse formulated a central trend in the findings: that the imposition of the HST is an adequate measure to improve the economic situation of the provinces, but citizen opposition will always be present in these cases as there are misperceptions of the intent of the tax. These misperceptions are attributable to HST opposition.


58

Carleton University Journal of Legal Studies

Vol. III Issue 1

The analysis of public discourse related to the imposition of the HST

revealed that opposition in British Columbia was far more substantial as opposed to Ontario for a number of factors. These factors include: 1) The failure of the British Columbia government to take proper steps prior to the implementation of the HST to ensure it would be adopted with minimal opposition from the citizenry; 2) Premier Gordon Campbellâ&#x20AC;&#x2122;s introduction of the HST immediately after he campaigned against it to be elected; 3) The higher level of importance given to provincial politics in British Columbia as opposed to Ontario; 4) The role of political opposition in speaking out against the HST in Ontario and British Columbia; and 5) British Columbiaâ&#x20AC;&#x2122;s implementation of the HST coupled with its already existent carbon tax.

Research Design In contrast to research examining the economic implications of the HST, this analysis focuses on the reaction to the HST in Ontario and British Columbia. As previously mentioned, this analysis focuses on public discourse from three major national newspapers in Canada during a period where the harmonization of provincial and federal taxes in Ontario and British Columbia were at the forefront of political discussion within these provinces. An analysis of the dialectical basis of these newspapers has allowed for an understanding of the varied opinions of Ontario and British Columbia on the spectrum of public reaction to the HST. The research undertaken in this study consisted of examining 29 articles from the Globe and Mail, Toronto Star and Vancouver Sun. These articles spanned over a time period from March 26, 2009 to December 28, 2010. Dur-


The Varying Reaction to HST Legislation

2011

59

ing this period, the HST was introduced and implemented in both Ontario and British Columbia and was a central topic of discussion in the national media, political institutions and among the citizens of these provinces. In addition to the analysis of print media, legislation passed in both the legislative houses of Ontario and British Columbia pertaining to the implementation of the HST was examined. Although print media is not deemed academic in nature, these sources are useful in interpreting public reaction to the HST. Analyzing print media yields reliable conclusions because journalists are impartial when presenting ideas and strive for objectivity in their reporting.1 This is ensured because failure to present ideas in the media in an objective manner brings into question the reliability of the journalist and the organization he or she represents. In addition to objectivity in print media, public discourse allows for the opinions of different groups in society to be expressed. In the articles examined, a number of viewpoints regarding the HST were presented ranging from that of the ordinary citizen, to those of business communities or political communities. Examining these articles and perspectives in their entirety has allowed for an extraction of a prevalent trend surrounding the implementation of the HST and the varying public reaction to it in Ontario and British Columbia. This trend is characteristic of the overall benefit of the HST despite public discontentment with it. Furthermore, this discontentment varied in severity between Ontario and British Columbia as a result of specific contributive factors. Tax Harmonization in Ontario and British Columbia


60

Carleton University Journal of Legal Studies

Vol. III Issue 1

In the depth of a global economic crisis with weak provincial economies Ontario, followed by British Columbia, announced that they would harmonize their provincial tax with the federal tax on July 1, 2010. Bill 218, which was introduced in the first session of the 39th legislature of Ontario, established the process for the harmonization of provincial and federal sales taxes. Schedule R of Bill 218 set out an amendment to the Retail Sales Tax Act of Ontario to allow for the ratification of a “Comprehensive Integrated Tax Coordination Agreement” between the federal Minister of Finance and the Minister of Finance for Ontario.2 This agreement set out the framework for which the Government of Canada would administer and collect an integrated tax under the federal Excise Tax Act.3 This description of the integrated tax system that Ontario entered into with the federal government is parallel to the one British Columbia adopted. Under this system of tax harmonization Ontario would institute a 13 per cent tax and British Columbia would institute a 12 per cent tax to be collected by the Canada Revenue Agency, which would then remit appropriate shares of the collected tax back to the provinces.4 The HST has already been implemented in New Brunswick, Newfoundland and Nova Scotia where, as a result, “investment grew at a rate beyond the estimates.”5 The logic behind the HST comes from the removal of the provincial sales tax (PST) with its imposition. Previously, the PST would apply at every step of the business process from manufacturing goods to providing services, making it a tax on a tax on a tax. The removal of the PST with the implementation of the HST causes there to be only one tax at the end of the process, which is assumed by the consumer. This removes a tax at every step of the production process and is intended to eventually reduce the cost of goods as businesses


2011

The Varying Reaction to HST Legislation

61

assume less of the tax burden. This, in turn, attracts more investment. In reality, the fact is that only approximately 17 per cent of goods in Ontario and 20 per cent of goods in British Columbia will see an increase in cost as they were never subject to PST before.7 In addition to removing the PST from the production process, the PST would no longer require a provincial bureaucracy to collect it. In the case of Ontario and British Columbia, the federal government agreed to assume all administrative costs in collecting the tax and would also provide a $1.6 billion one-time transition payment to the provinces.8 The removal of administrative costs in the provinces and the transfer payments would allow the provinces to invest in more social and economic programs within the provinces.

Benefits of the HST An examination of public discourse surrounding the implementation of the HST has revealed its benefits to the public and the economies of Ontario and British Columbia. One benefit of a public discourse analysis in this instance is its ability to allow for various viewpoints to be exposed in examining print media. A similar trend can be noted throughout the discourse analysis, that the HST is beneficial on an overall sense to the affected provinces. As noted above, the intention of imposing the HST is to eliminate the PST present in every step of the production process. This manifests in lower prices for consumers. In the end, this allows for a more competitive investment and business market, causing businesses to support of the HST.9 Grant Clark is the president of an Ontario based professional services company, which was


Carleton University Journal of Legal Studies

62

Vol. III Issue 1

not subject to PST in the past. Now bearing the brunt of the HST Clark has stated that, “I can see the logic behind it – I understand the goal is to encourage investment by businesses in Ontario. It’s going to be beneficial overall…”10 Stuart Johnson of the Ontario Chamber of Commerce began advocating for the HST years ago in attempt to reduce the tax-burden on businesses that reduced Ontario’s ability to compete.11 Prior to the HST, each dollar invested in Ontario’s economy was taxed nearly 33 percent. Under the HST this is reduced to roughly 16 per cent, which is more consistent with international averages thus making Ontario globally attractive for investment.12 On a similar note, John Winter, the president and chief executive officer of the British Columbia Chamber of Commerce stated the following about the importance of the HST: It’s largely because of the simplicity of it, avoiding the cost of duplication of efforts. It ultimately avoids the congestion the [provincial sales tax] causes in the manufacturing cycle. We recognize that things like the PST are outdated, certainly inefficient and costly. The Maritime example has been very illustrative.13

Satinder Chera, the Ontario director of provincial affairs for the Canadian Federation of Independent Businesses, stated the following: “No one disputes the fact that one [sales tax] system is better than two systems…the question is how you get there.”14 It is this question that is central to the varying reaction of citizens in Ontario and British Columbia to the HST. It is evident that the HST is an adequate measure to improve provincial economies and that in the long run, it is beneficial to the inhabitants of these provinces. The measures used in


2011

The Varying Reaction to HST Legislation

63

implementing this tax system, or the lack of measures, is a major factor in how the public will adapt and respond to it. Public Reaction to the HST “These measures aren’t the easy thing to do, they’re not the politically safe thing to do. But they are, undoubtedly, the right thing to do.”15 These are the words of Ontario Premier Dalton McGuinty as he discussed the implementation of the HST. It has been established that the HST is beneficial to assist provinces in overcoming economic downturns. It is clear from reviewing public discourse on the topic that the public reaction to the HST in Ontario and British Columbia were significantly different. It would be incorrect to state that there was not opposition to the HST in Ontario, but the opposition in Ontario was much less severe than that in British Columbia as a result of a number of factors. It is these factors, not the implementation of the HST, which caused such strong opposition to the HST in the case of British Columbia. These factors will be discussed individually below. Columbia. British Columbia’s Failure to Sell the HST One advantage that the Ontario government had when announcing the HST was the measures it took to sell the tax to citizens. The British Columbia government failed to do this, which was a major contributor to the negative public reaction to the HST in that province. Ontario Premier Dalton McGuinty began preparations internally by helping caucus members learn to sell the HST. Ontario also began to promote the idea publicly at an early stage in the process to prepare consumers for the tax harmonization.16 McGuinty ap-


Carleton University Journal of Legal Studies

64

Vol. III Issue 1

peared at venues like the Toronto Board of Trade and various Chambers of Commerce to advertise the HST.17 Ontario Liberal caucus meetings were centred on learning how to sell the HST and the party even used its own funds to support the promotion of the tax to Ontarians.18 By the official announcement of the HST in Ontario, Finance Minister Dwight Duncan and Premier McGuinty had already taken steps to sell the tax publicly and also privately within the business community and to the media.19 The McGuinty government went as far as appointing John Wilkinson to manage a new revenue tax portfolio where his main job would be to act as the HST pitchman.20 The case in British Columbia can be seen in great contrast to that of Ontario with respect to selling the HST prior to its implementation. British Columbia’s Finance Minister Colin Hansen argued that the HST received negative public opinion backlash because there was pressure from the federal government while implementing the HST and its abrupt introduction left the province without adequate time to prepare to sell the HST strategically.21 The position of many British Columbians was that the HST was “shoved down [their]… throats” and they had no chance to discuss the tax before the deal was done.22 Citizens of British Columbia were never given the opportunity to be convinced about the benefits of the HST and as a result their opposition to it remained strong.

Premier Campbell’s Broken Campaign Promise A major detriment to the introduction of the HST in British Columbia was Premier Gordon Campbell’s decision to implement the tax after he had


2011

The Varying Reaction to HST Legislation

65

just finished campaigning against it: “By announcing the HST weeks after a provincial campaign in which he’d promised not to impose it, Mr. Campbell all but ensured it would be hated.”23 In contrast to British Columbia, Premier McGuinty in Ontario had introduced the idea of the tax partway through his second term and took proper steps in Ontario’s preparation in moving towards the HST system.24 In British Columbia, Premier Campbell embraced the HST after having denied having it on his agenda in the election campaign that closely preceded the introduction of the tax.25 The HST was already facing opposition from citizens in British Columbia and this unfortunate political mistake on the part of Premier Campbell strengthened that opposition. The Importance of Provincial Politics The level of importance of provincial politics played a significant role in the public reaction to the HST in Ontario and British Columbia. It is a generally accepted fact amongst political scientists that Ontarians hold a central view when it comes to politics and pay more attention to the business of the federal legislature than their own provincial legislature. This lack of interest and engagement in provincial politics may be seen as attributable to Ontario’s less extreme reaction to the implementation of the HST.26 In contrast to this, it was noted that British Colombians extreme response was, “attributable to British Columbians being more engaged in (and easily enraged by) provincial politics.”27 This engagement in provincial politics in British Columbia contributed largely to the negative reaction of the public and the large role of political opposition in the HST dilemma.


Carleton University Journal of Legal Studies

66

Vol. III Issue 1

Role of Political Opposition The position of political opposition in Ontario and British Columbia was one of the most significant factors that led to the diversity in public reaction to the HST between the provinces. In Ontario, opposition members initially attempted to label Premier McGuinty, “a tax-raising promise breaker.”28 This label was refuted as McGuinty moved to lessen the impacts of the HST with payments to families and tax exemptions. In the case of Ontario, it would have been difficult for the new leader of the Progressive Conservatives (official opposition) Tim Hudak to oppose a pro-business, pro-jobs tax system like the HST.29 The fact that it would have been difficult for Hudak to take a strong position against the HST is indicative of the minor role political opposition played in Ontario. Additionally, the HST has been noted as “rising above partisanship” as governments at the provincial and federal level from various positions on the political spectrum have approved the HST because of its benefits for the economy. Despite the economic benefits of the HST, British Columbia was faced with strong opposition as a result of the efforts of former Social Credit Party premier Bill Vander Zalm. Early on in the introduction of the shift to the HST in British Columbia, Vander Zalm organized the “Fight HST” campaign and on April 6, 2010 a citizen-sponsored initiative to end the HST had officially begun.30 On June 30, 2010 Vander Zalm delivered 700,000 signatures to Elections BC to stop the implementation of the HST.31 Months of resistance to the HST by citizens ensued, finally forcing the British Columbia legislature to announce a referendum on the issue for June 24, 2011.32 The HST faced strong opposition in British Columbia as a result of Vander Zalm’s efforts, which sparked


The Varying Reaction to HST Legislation

2011

67

strong citizen response in the province. Premier Campbell questioned the intentions of Vander Zalm and referred to his anti-HST campaign as a campaign of “misinformation” and “simply false.”33

BCs Carbon Tax Another factor that contributed to the varying public reaction to the HST in Ontario and British Columbia was the already existing carbon tax in British Columbia. Ontario had not been subject to a new tax levy since the health care premium five years prior, whereas British Columbia had recently imposed its new carbon tax in the province.34 The imposition of the HST after the carbon tax implementation did not sit well with British Columbians. In an effort to make the HST more appealing, the British Columbia government exempted gasoline from the tax, but as the carbon tax was already responsible for gradually raising this cost, the exemption was seen as ineffective from the perspective of the citizens.35 The introduction of the HST coupled with the carbon tax negatively contributed to public reaction to the tax in the case of British Columbia. Conclusion An examination of public discourse surrounding the implementation of the HST has revealed that as appropriate a measure it was to combat ravaged provincial economies, it was not willfully accepted by the citizens of British Columbia in contrast to the case of Ontario. Analyzing the dialogue of national print media allowed for several contributive factors to be noted, adequately


Carleton University Journal of Legal Studies

68

Vol. III Issue 1

supporting this conclusion. Within the analysis, the factors that contributed to the diverse public reaction to the HST in Ontario and British Columbia were made evident. Further inquiry into the subject is required as the situation in British Columbia progresses. After the referendum on the HST in British Columbia has taken place in June of 2011 and the tax has been in place for a substantial amount of time, an appropriate review of its economic impacts may be assessed. At that point, research will indicate whether the public outrage in British Columbia towards the HST was grounded on realistic concerns, or whether it was a reaction that came about as a sole result of the above noted factors.


2011

The Varying Reaction to HST Legislation

69

Endnotes 1

Catherine McKercher & Carman Cumming, The Canadian Reporter: News Writing and Reporting, 2d ed. (Toronto: Nelson Thomson Learning, 1998) at 22.

2

Bill 218, An Act to implement 2009 Budget measures and to enact, amend or repeal various Acts, 1st Sess., 39th Leg., Ontario, 2009.

3 Ibid. 4 Tim Cestnick, “What harmony will cost you” The Globe and Mail (1 June 2010) L3. 5 David Milstead, “Transition to HST hits a sour note” The Globe and Mail (20 January 2010) B11. 6 Cestnick, Supra note 4. 7 Ibid. 8 Gwyn Morgan, “Harmonized sales levy is the lesser of tax evils” The Globe and Mail (17 August 2009) online: The Globe and Mail <http://www.theglobeandmail.com>. 9

Karen Howlett and Brian Laghi, “Ontario moves to soften blended-tax blow with consumer exemptions” The Globe and Mail (26 March 2009) online: The Globe and Mail <http://www.theglobeandmail.com>.

10 Milstead, Supra note 5. 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid. 15 Karen Howlett, “McGuinty works to sell harmonized tax” The Globe and Mail (3 April 2009) online: The Globe and Mail <http://www.theglobeandmail.com>. 16

Rob Ferguson & Robert Benzie, “Tax-rebate ‘bribes’ worry Liberal MPPs; ‘Voters are not stupid,’ one caucus member says” Toronto Star (28 August 2009) A12.

17 Howlett, Supra note 15. 18 Ferguson, Supra note 16. 19 Adam Radwanski, “A bad day for the B.C. government when Ontario looks good” The Globe and Mail (18 September 2009) S3. 20 Ibid. 21 Ibid. 22 Craig McInnes, “Perception is reality in the political accounting of HST” The Vancouver Sun (30 June 2010) A6. 23 Adam Radwanski, “McGuinty’s foes get lift from B.C. HST woes” The Globe and Mail (16 September 2010) A9. 24 Radwanski, Supra note 19. 25 Jeffrey Simpson, “Premier’s harmonized death knell” The Globe and Mail (21 July 2010) A15. 26 Radwanski, Supra note 19. 27 Radwanski, Supra note 23. 28 Howlett, Supra note 9. 29 Andrew Steele, “BC follows McGuinty’s lead” The Globe and Mail (23 July 2009) online: The Globe and Mail <http://www.theglobeandmail.com>. 30

Robert Matas, “The unexpected impact of the citizen-sponsored initiative” The Globe and Mail (28 December 2010) A6.

31 Ibid. 32 Ibid. 33 Patrick Brethour, “No legal challenge to HST petition: Campbell” The Globe and Mail (28 June 2010) S1. 34 Radwanski, Supra note 19. 35 Steele, Supra note 29.


70

Carleton University Journal of Legal Studies

Vol. III Issue 1

References Legislation: Bill 218, An Act To Implement 2009 Budget Measures and to Enact, Amend or Repeal Various Acts, 1st Sess., 39th Leg., Ontario, 2009. Secondary Materials (Articles): Brethour, Patrick. “No Legal Challenge to HST Petition: Campbell” The Globe and Mail (28 June 2010) S1. Cestnick, Tim. “What Harmony Will Cost You” The Globe and Mail (1 June 2010) L3. Ferguson, Rob & Benzie, Robert. “Tax-rebate ‘bribes’ worry Liberal MPPs; ‘Voters are not stupid,’ one caucus member says” Toronto Star (28 August 2009) A12. Howlett, Karen. “Mcguinty Works to Sell Harmonized Tax” The Globe and Mail (3 April 2009) online: The Globe and Mail <http://www.theglobeandmail.com>. Howlett, Karen & Laghi, Brian. “Ontario Moves To Soften Blended-Tax Blow With Consumer Exemptions” The Globe and Mail (26 March 2009) online: The Globe and Mail <http://www.theglobeandmail.com>. Matas, Robert. “The Unexpected Impact of the Citizen-sponsored Initiative” The Globe and Mail (28 December 2010) A6. McInnes, Craig. “Perception is Reality in the Political Accounting of HST” The Vancouver Sun (30 June 2010) A6. McKercher, Catherine & Cumming, Carman. The Canadian Reporter: News Writing and Reporting, 2d ed. (Toronto: Nelson Thomson Learning, 1998). Milstead, David. “Transition to HST Hits a Sour Note” The Globe and Mail (20 January 2010) B11. Morgan, Gwyn. “Harmonized Sales Levy Is The Lesser of Tax Evils” The Globe and Mail (17 August 2009) online: The Globe and Mail <http://www.theglobeandmail.com>. Radwanski, Adam. “A Bad Day for the B.C. Government When Ontario Looks Good” The Globe and Mail (18 September 2009) S3.


2011

The Varying Reaction to HST Legislation

71

Radwanski, Adam. “McGuinty’s Foes Get Lift from B.C. HST Woes” The Globe and Mail (16 September 2010) A9. Simpson, Jeffrey. “Premier’s Harmonized Death Knell” The Globe and Mail (21 July 2010) A15. Steele, Andrew. “BC Follows McGuinty’s Lead” The Globe and Mail (23 July 2009) online: The Globe and Mail <http://www.theglobeandmail.com>.


Carleton University Journal of Legal Studies

72

Vol. III Issue 1

Refugee Reform in Canada: Examining the Balanced Refugee Reform Act and its Effect on Canadian Refugee Law Andrew Retfalvi Canadaâ&#x20AC;&#x2122;s refugee system has been broken for many years. Recently, the Canadian Government has made efforts to revitalize the current administrative program, which has been met with both praise and criticism. A new piece of legislation to deal with these issues, The Balanced Refugee Reform Act, gained Royal Assent in 2010, and is currently undergoing its implementation phase. The legislation covers a wide range of issues, such as staffing requirements at the Immigration and Refugee Board and application timelines for candidates. This article illustrates new aspects of the Canadian refugee system, their desired effects and potential challenges that may arise in the future.

C

anadian news agencies often focus stories on legal cases that involve large corporations. For example, refugee law in Canada has traditionally been regarded as a small branch of immigration law;

a field that undoubtedly exists, but has never regularly been at the forefront of debate and discussion. Currently, the deepening divide between developed and undeveloped nations and the rise of intrastate conflict has created an increase in refugee claims, with Western states as the most attractive destinations. As


2011

Refugee Reform in Canada

73

such, Canadian Refugee legislation requires modernization in order to minimize the claimant backlogs, and to create a fairer and more efficient system. In response to the increase in refugee claims in Canada, Conservative M.P Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, introduced a new legislative proposal on March 30th, 2010. Formally known as Bill C-11, An Act to Amend the Immigration and Refugee Protection Act and the Federal Courts Act, and commonly known as The Balanced Refugee Reform Act, the bill makes significant changes to Canada’s refugee system. The Act affects decision makers, appropriate timelines and introduces a political element in determining countries of safe origin. Although considered controversial among legal professionals, the Act gained the support of all parties within the House of Commons and was granted Royal Assent on June 29, 2010. The bill is currently in the implementation phase and will likely be functional within the next year. This paper will explore the history behind the need for legislative reform, the changes themselves, and their effect on the Canadian refugee system. Additionally, an analysis on whether the new legislation will enable Canada’s refugee system to be more efficient and effective will be explored. Historical Background: How did we get to this point? Canada’s immigration laws have traditionally been somewhat behind the time, and seemingly always playing a game of catch-up within the realm of modern refugee law. However,major immigration policies were introduced in 1869, 1906 and 1952. Another important amendment in 1967 included the introduction of the points system. In 1976Canada’s first modern and formal im-


74

Carleton University Journal of Legal Studies

Vol. III Issue 1

migration policy was enacted by the Trudeau government. This set of policies focused on who should be refused entry into Canada, rather than who should be granted entrance. The Act created four new classes of immigrants: refugees, families, assisted relatives and independent immigrants. The Act serves as a precursor to current refugee legislation, and incorporates many of the principles of modern-day immigration law in Canada. Since the implementation of the Actother important amendments have been made, such as the creation of the Immigration and Refugee Board in 1989. However, until recently, the Act remained fairly unchanged. By the beginning of the new millennium it was clear that Canada needed an update to existing refugee legislation to ensure the overarching system remains viable and efficient. efficiency. The Immigration and Refugee Protection Act (IRPA) was passed following the terrorist attacks of September 11th, 2001, and formally went into effect in June 2002. The Act was implemented at a time when international security was of grave concern, and immigration and refugee matters were scrutinized much more than before. Broad in its scope, the Act affects the Immigration and Refugee Board (IRB), as well as the Department of Justice and Citizenship and Immigration. Furthermore, the Act actively engages the Canada Border Services Agency (CBSA) and several levels of the federal judiciary. The IRPA enables the IRB to have distinct divisions: the Immigration Division (ID), the Immigration Appeal Division (IAD), and Refugee Protection Division (RPD). All three divisions have distinct mandates within the organization and each decides cases with specific criteria. As seen within the original text of IRPA, a fourth division was proposed but never created along with the remainder of the Act. The Refugee Appeal Division (RAD) was intended to allow denied claimants the


Refugee Reform in Canada

2011

75

opportunity to appeal decisions of the RPD, but was never introduced in 2002 with the rest of the Act. Lack of resources, extraordinarily high levels of cases, and lack of parliamentary approval caused the delay in implementation of the fourth division. Thus, the RAD never came into existence with the rest of the IRPA. The abundance of refugee claimants is problematic as they have created a backlog, requiring change in the pre-Bill C-11 system. Currently, the environment for refugees in the international community is changing, forcing Canada and other states into a refugee crisis. Human smugglers and other burgeoning issues that were not prominent in past years have signalled the need for change, resulting in the introduction of remedial legislation such as Bill C-11.

The Balanced Refugee Reform Act: Revamping the Refugee System

Creation of the Refugee Appeal Division Under Bill C-11, the Immigration and Refugee Protection Act will look substantially different. Although the bill is not creating a whole new Act ( for example the IRPA in 2001 replacing the Immigration Actof 1976)the bill has been formatted in a way that makes the system structure of refugee determination in Canada unrecognizable. Under federal law, The Immigration Refugee Board (IRB) will be faced with more responsibility for immigration. The IRB is also Canadaâ&#x20AC;&#x2122;s largest independent quasi-judicial administrative tribunal. As mentioned previously, the original IRPA (passed in 2001) contained a proposal for the establishment of a Refugee Appeal Division (RAD). The RAD would


76

Carleton University Journal of Legal Studies

Vol. III Issue 1

have been an internal appeal mechanism versus the current process which entails judicial review at the Federal Court level. The Federal Court judicial review only examines issues of law, not issues of fact. Under this system of review an important aspect of the immigration case may be omitted due to a lack of jurisdiction. The RAD was never proclaimed as part of the IRPA in 2001, and as such, was not actually implemented at the IRB. This is the first new part of the system; the bill would implement the creation of the RAD within the existing IRB framework. The legislation also grants the IRB a grace period of two years before Royal Assent to ensure that this new division is fully operational. While only a limited number of appeals would be eligible, the new division would allow for an internal appeal from failed Refugee Protection Division claims. Only failed claimants from selected countries (on a list provided by the government) would be allowed to file an appeal at the RAD. These issues, and the extent to which they are relevant, will be addressed later in the paper. In addition to strict criteria on home country, the legislation enforces more restrictions on what would be allowed as evidence before the RAD. Changes to the Pre-Removal Risk Assessment and Humanitarian & Compassionate Systems Another new aspect encompassed within the new bill is the change to the Pre-Removal Risk Assessment (PRRA) system. Currently operated by Citizenship and Immigration Canada, the PRRA is a tool used to determine whether denied refugee claimants would face significant risk in their state of origin. The decision on whether or not to deport a refugee is based on new information that was not available at the time of the refugee hearing. If the PRRA applica-


Refugee Reform in Canada

2011

77

tion is, however, granted, it typically means that a deportation order would not be in accordance with Canada’s human rights obligations under international law. In addition, obligations to residents under the Canadian Charter of Rights and Freedoms (CCRF) would not be met. As such, the deportation would be stayed until a decision on the PRRA is made. Additionally, the decision is subject to judicial review by the Federal Court if an applicant or Minister so chooses. Based on existing case load and processing time, this decision may take up to a year to be made Under the new law, most PRRA applications will be transferred to the RPD at the IRB. Section 112(1) of the IRPA will be amended to make this claim, and the IRB will hold an increased responsibility in this matter. The process allows for efficient and knowledgeable decision making by the board. Historically, the PRRA application would be given to Citizenship and Immigration Canada CIC, where it would take time for the PRRA Officer to become familiar with the intricacies of the applicant’s case. In addition to the PRRA’s decision making procedures, other aspects of this particular legislation are changing. Prior to the introduction of Bill C-11, a claimant denied refugee status could file for a PRRA immediately, resulting in a significant amount of backlog. Furthermore, as applications do not consist of an oral hearing, they take a long time to process. The new legislation also stipulates that: No person that has been either been rejected as a refugee, or withdrew, abandoned or otherwise removed their refugee claim is eligible for a PRRA or a Humanitarian & Compassionate claim within one year of said rejec-


78

Carleton University Journal of Legal Studies

Vol. III Issue 1

tion or other method of removal.

Thought to be a measure of efficiency, the directive has caused a backlash amongst immigration lawyers and refugee advocates.Many feel the new system may overlook key issues as well as claimants that may be in legitimate danger. However, the new legislation has solved the challenge of back log, and is more efficient, which was the goal of the Conservative government.

Adjudicating Claims: Board Member Qualifications and Staffing Requirements Another important element of the bill concerns the qualifications and appointment processes of the decision-makers. Traditionally, all IRB members were appointed through Governor-in-Council appointments, regardless of which division they operated in. Accusations of employee incompetence and political patronage were frequent in the Governor-in-Council appointments and thus caused controversy. In the updated IRPA a new section has been created to ensure that board members employed by the RPD are no longer appointed through the Governor-in-Council appointments, to avoid issues of political patronage. Rather, appointments will now come from the existing Public Service Employment Act, which is used to address the staffing needs of the public service. The new system ensures the first decision-maker a claimant meets would be a public servant, as opposed to a political appointee. To summarize, the decision maker a claimant first makes contact with will not be a recipient of political patronage, but rather a member of the public service Public service employees are granted positions after a qualification process which includes a series of tests, competitions and language evaluations. Often over-


2011

Refugee Reform in Canada

79

looked by the media, the qualification process for the public service employees is one of the more important aspects, and as such, will lead to more stability within the decision making process.

Changing Timelines: Efficiency at the Forefront The other important development with Bill C-11 legislation deals with efficiency and time limits. Bill C-11 attempts to achieve a much higher level of expediency when processing refugee claims, something that the Canadian government has been successful with in the past. With over 63,000 refugee claims in the system of backlog, the government has had no choice but to make changes to the current system of procedures. Bill C-11 satisfies the need for efficiency and expediency. First, Bill C-11 had made numerous timeline-related changes that are designed to ‘fast-track’ applications while maintaining the integrity of claim examination. Previously, the candidate would make a refugee claim, and be instructed to submit a Personal Information Form (PIF) and send it to the IRB within 28 days. After this initial period, a hearing would be scheduled, pending eligibility. Under the new legislation, the claimant would be entitled to an interview with a RPD board member within eight days of the claim being filed, with a full refugee hearing occurring in sixty days. However, these timelines are flexible. The new legislation enables exceptional cases to be subjected to a shorter and stricter timelines. An example of an exceptional case would involve a claimant originating from one of the “designated countries of origin”, which are countries considered to be democratically safe and generally free from human rights violations that other claimants might normally


80

Carleton University Journal of Legal Studies

Vol. III Issue 1

encounter With those countries, the list of which would be created by the government at the time, it is rare that a refugee application would be accepted, as they normally would not be considered conventional refugees. Major political issues stem from this controversial change, which will be discussed later on. However, these applications are faced with dramatically shorter timelines, as the Board wants to be able to deal with them expeditiously.

Goals of the New System / Potential Effects

Reducing Wait Times / Timely and Concise Decisions One of the main goals of Bill C-11 is to reduce the lengthy waiting times faced by many refugee claimants. Currently, refugees can wait up to a year for a simple hearing at the IRB, and a decision may not be rendered at that time. The promise of a hearing within sixty days is a lofty target; one that could be extremely difficult to manage. The Canadian Bar Association (CBA) has raised a number of issues with the new targets, and their predictions seem startlingly plausible. Firstly, the eight-day window before the first interview with the RPD seems extremely improbable for refugees to meet. A newcomer to Canada may be unfamiliar with our legal system and cultural environment, and it may take time to become acclimatized. Due to the requirement of quick preparation, as well as basic needs, an interviewee may find it difficult to be prepared for a meeting within the required timeframe. In all likelyhood a request for an adjournment or formal rescheduling would be made. Similar challenges may also exist for claimants as they prepare for their sixty day hearing. The CBA points


2011

Refugee Reform in Canada

81

out that it is very likely claimantsâ&#x20AC;&#x2122; lawyers would seek hearing adjournments in order to best be able to serve their clients. With adjournments, the scheduling at the RPD would be difficult to manage, and involve considerable backlogs. Another challenge with Bill C-11 is the existence of numerous cases in back log at the IRB.As the deadline of two years after gaining Royal Assent for implementation draws near, a question emerges: How will the Board rid itself of the existing back log of applications? At last count, 63,000 cases were before the Board .Very little time is being spent on addressing the challenge of backlog before the new system and timelines are set in motion. The back log of cases may hinder the Board in achieving their lofty goals and timelines proposed under the new legislation.

Reducing the Partisanship Aspect One of the most important aspects of Bill C-11 involves the new precedent-setting staffing requirements for the Board. Not unlike other government agencies and tribunals, the positions on the Board have been traditionally filled through Governor-in-Council appointments, whereby patronage has played an important role. Throughout Canadian political history, the gift of appointment has been a regular occurrence. Former Prime Ministerâ&#x20AC;&#x2122;s Brian Mulroney and John Turner both had expressed their disagreement with the patronage witnessed in the 1980s while more recent governments, including those of Primer Minsters Jean Chretien and Stephen Harper, have reverted back to the practice. Traditionally, political patronage comes from the political party in power, which grants government positions to friends and supporters.


Carleton University Journal of Legal Studies

82

Vol. III Issue 1

As a result, these chosen individuals tend to be under-qualified and usually lack the significant educational background that is required to perform effectively. Positions at the IRB are coveted as the board members have had few qualifications to meet. However, with the new legislation, the practice of hiring onesâ&#x20AC;&#x2122; friends is legally eliminated. Members of the IRBâ&#x20AC;&#x2122;s largest division, the RPD, are to be staffed via the public service, as opposed to via appointment. The new system will ensure a neutral decision-making body, one without any political interference or partisanship. Although common sense would argue that anyone making these decisions should have a legal background in order to thoroughly comprehend the issues and arguments at hand, these efforts within the new legislation still go a long way to ensuring a fair and efficient decision making body. The removal of partisan appointments also contributes to an increased level of organizational stability. After being elected in 2006, Prime Minister Harper refused to appoint anyone to the Board, most likely due to the fact that it would look rather hypocritical after such a transparency-and-accountability based campaign. Although considered admirable from a pro-transparency view, this hurt the Board greatly. The lack of appointees to the Board caused a reduction in cleared cases now considered an obstacle to the successful implementation of the new Bill. However, now that some of the new board members are chosen through the public service, backlog will not be an issue.

Allowing Appeals: Creating the Refugee Appeal Division As the centerpiece of the new bill, the RAD should be welcomed by coun-


Refugee Reform in Canada

2011

83

sel and interest groups alike. Initially, the RAD was supposed to be included in the original IRPA. The RAD was specifically not implemented with the rest of the Act. The new RAD division will allow for the appeal of some previous negative decisions of the Board. Furthermore, the RAD will enable the consideration of new evidence that was not available at the time of the first refugee hearing.

The RAD also has the power to dismiss an appeal, substitute the

original decision with one of its own, or return it to the RPD for re-determination. RAD also has the power to summon witnesses, something that previous Boards were not able to do. The current government believes RAD will be effective. After examining several briefing documents from management at CIC, it seems that nothing negative has been said about the new division. However, there are still several questions to be asked as some individuals at RAD were appointed by the former Governor-in-Council method, will decisions still reflect patronage? What are the implications if we have a repeat of 2006, when the government refuses to make any appointments? Can Canadians afford a backlog with the new strict timelines? These are all important questions to be asked. Doubt that surrounds the creation of the new division creates unease about claiming success prematurely. The idea of having an internal appeal division at the IRB is extremely appealing, although some of the logistics are challenging, and may hinder success.

Faster Removals: A Good Thing, or Potentially Dangerous? One of benefits the new legislation claims is that it will speed up the re-


Carleton University Journal of Legal Studies

84

Vol. III Issue 1

moval process. The removal process will remove many of the current issues that the government has with refugees staying in Canada for many years while awaiting the decision regarding their claim. With the new regulations removing the immediate option to file a PRRA or H and C application and offering a tool to weed out fraudulent claims, there are fewer obstacles in the way for Canada to remove the claimant. The government suggests this is an important piece of the legislation, as it will allow for the removal of unworthy and potentially fraudulent claims much quicker than the current system. While the government states the new legislation will make removal of a refugee more rapid, it overlooks a few important ideas. First, conditions in countries that refugees traditionally originate from are often volatile and may change from one week to the next. If a claimant were denied refugee status and faced imminent removal, circumstances could change, and then denial of a PRRA or H&C application could be disastrous and potentially life threatening for the claimant. In short, Canada would be directly responsible for putting people and their lives in danger, and most likely in violation of the Charterof Rights and Freedoms and international refugee law. On the other hand, the prohibition of PRRA and H&C for an entire year may encourage evasion from immigration authorities until the year period is up. Both of these scenarios seem plausible, and address two major issues that were not fully addressed within the bill at hand, and should be brought to the attention of Canadian lawmakers. The new legislation also considers the possibility of fraudulent cases, for which the IRB currently has no legal instrument to deal with. Under the bill, the RPD can find a case to be â&#x20AC;&#x153;manifestly unfoundedâ&#x20AC;? and can apply the same


2011

Refugee Reform in Canada

85

timelines as it would to claims arising from countries of safe origin. This part of the quick removal system is definitely needed, as an instrument to weed out potential fraudulent cases is needed in a modern system.

The Bombshell: Is C-11 Politicizing our Refugee System? After reading the Balanced Refugee Reform Act, many were shocked to find that one of the main tenets consisted of the introduction of the “Designated Countries of Origin” list. Added in as a way to minimize the number of true claims, the designated countries of origin list has generated controversy from the legal profession. A list of countries has been assembled by the Canadian government indicating the preferred countries from which refugee claimants originate. Based on research and advice from the international community and the United Nations (UN), the Canadian government has pledged that people claiming refugee status from a country on the exclusion list would face tougher and far stricter timelines than those of a regular refugee claimant. Although this appears to be an intelligent idea from the outside, it has potentially dangerous political and legal consequences. If this list is being chosen by the Government of the day, decisions may become inherently political; immigration policy could suddenly be swayed by non-related issues such as trade negotiations, defense policy and general foreign policy. The lives of refugees could be impacted by the simple desire for domestic political success and as such, is problematic. Said political success is also very unstable in Canada as government changeover has been quite frequent as of late. The prospect that the exclusion list could change with the leading party’s ideology on a fairly regular basis could disrupt the dynamics of Canada’s immigration and refugee


86

Carleton University Journal of Legal Studies

Vol. III Issue 1

law. Refugee determination is very much an individual-based decision, one which relies heavily on circumstance. Our politicians may make the laws, but there may be cases where refugee status is warranted, yet the applicantoriginates from a ‘safe nation’. The exclusion list has potential to set dangerous precedents, and not unlikethe expediency of removal provisionsthe list may overlook some individuals and expose them to unnecessary risk.

Making Conclusions – Will Bill C-11 Work? In modern society, there is uncertainty everywhere. ntrastate conflict is prevalent in different places around the world. Millions of people are displaced from their homes every year due to political conflict andnatural disasters. The problem of human trafficking is becoming more prevalent. The need for a comprehensive refugee determination policy has never been more present. The Balanced Refugee Reform Act has, and will continue to aid in the renaissance of Canada’s refugee system. The inclusion of the Refugee Appeal Division at the Immigration and Refugee Board and introduction of strict timelines for the newly introduced classes of refugees are examples of success. Bill C-11 offers a more expedient removal process, while partially removing an obviously outdated partisanship-based appointment system at the Refugee Protection Division. However, the inclusion of a politically influenced list of “safe” countries threatens the success of Bill C-11. Although time will tell if the renewed system is successful, it is posited that the new bill could create some drastic political issues. Acting with its domestic political interests at heart, the


2011

Refugee Reform in Canada

87

government may cause further challenges. All in all, the changes made by the government replace an even more ineffective system, however, it is likely that Bill C-11 will be met with mixed results. Successes will be achieved with respect to efficiency and expedited removals, but failures (especially regarding exceptional cases) will be undoubtedly present, undermining the potential of overall success for Canadaâ&#x20AC;&#x2122;s new refugee system.


Carleton University Journal of Legal Studies

88

Vol. III Issue 1

Victims, Perpetrators and Tabloids Evan Hamilton Print media influences how its readership views conflict. However, many often overlook the impact of media ownership on content. This article will analyze how foreign-owned print media influenced public opinion during the South African Truth and Reconciliation Commission (TRC). With a particular focus on the media coverage of the two high-profile hearings of Jeffery Benzien and Winnie Madikizela-Mandela, this article will show how the foreign-owned print media sensationalized South African press content. This shaped how South Africans understood the legal definition of apartheid victims. By drawing upon the works of various media theorists and human rights scholars, this article will explore how foreign ownership perpetuated a problematic stereotype of victims and failed to hold the TRC accountable. “A good newspaper, I suppose, is a nation talking to itself.” — Arthur Miller, American Playwright

S

ince the 18th century, newspapers have played a role in disseminating information to the masses. When breaking news occurs, the media aim to inform the public about the events and put issues into political

and social context. When South African President Nelson Mandela created the Truth and Reconciliation Commission (TRC) in response to apartheid,


2011

Victims, Perpetrators and Tabloids

89

the media and much of the world turned their attention to South Africa. This groundbreaking idea of reconciliation instead of revenge captivated the world and it became the role of the media to share the TRC’s progress and give a voice to the victims of human rights violations. Many academics have been critical of the media’s portrayal of TRC’s procedures and findings. Some argue that the South African newspapers at the time contributed to the creation of a flawed stereotype of an apartheid victim1 and, in certain cases, failed to serve the public by relying on tabloid antics instead of investigative journalism.2 The following essay will evaluate the role of foreign-owned print media played in two high profile cases covered during the TRC. Through focusing on the hearings of Jeffery Benzien and Winnie Madikizela-Mandela, foreign-owned newspapers will be shown to play a critical role in perpetuating problematic stereotypes of apartheid victims and perpetrators in South Africa. It will be demonstrated how sensationalized newspaper coverage created a flawed notion of victimhood, which contributed to why the TRC used sensationalism instead of providing reconciliation to the South African people. The South African Media Landscape Before taking a specific-case analysis approach, the context in which the South African media operates must be established. During the apartheid era “the press became the instrument of sectionalism instead of the servant of society,” and was used as a means to divide the population between the Afri1 Tristan Anne Borer, A Taxonomy of Victims and Perpetrators: Human Rights and Reconciliation in South Africa, 25 Hum. Rts. Q. 1088 (2003) at 7. 2 Herman Wasserman, Tabloid Journalism in South Africa: True Story! Bloomington: Indiana UP, 2010. Print.


90

Carleton University Journal of Legal Studies

Vol. III Issue 1

kaner and the English.3 Once the apartheid era ended in 1994, there were significant changes to media ownership, news room demographics and there was a tabloidization of the news. During the apartheid era, the five conglomerates that operated the commercial print media in South Africa were owned by people who were Caucasian.4 As Sean Jacobs notes, the media have since been re-organized into a foreign, one-print media group owned mainly by an investment corporation run by people who are Black. When Ireland-based Independent News took over the pre-existing South African news organizations, its hope was that by reintegrating the South African media into the global economy, it would be able move forward with “the ideological repositioning of the new South Africa.”5 Unfortunately, “the structure of the print media - circulation, distribution networks, the price structure and advertising, some minor changes aside, were all aimed at retaining the racialized (White) readership.”6 As much as people thought foreign ownership influenced the framework of the print media industry, it did not have a dramatic effect on the demographic that actually read the newspapers. The reality of corporate news organizations is that advertising capital influences content and, because newspapers rely on specific readership to obtain the advertising dollars, the South African media continues to choose content that targets a niche market comprised of mainly people who are Cau-

1961.

3 Morris Broughton, Press and Politics in South Africa. Purnell & Sons: Cape Town

4 Sean Jacobs, “How good is the South African Media for democracy? Mapping the South African public sphere after apartheid.” African and Asian Studies, (2002) at 8-9. 5 Herman Wasserman and S. Rao. “The Glocalization of Journalism Ethics.” Journalism 9.2 (2008): 163-81. 6 Jacobs at 8-9.


Victims, Perpetrators and Tabloids

2011

91

casian.7 Ownership has also had a direct impact on the demographics of the staff that media organizations employ. Until the end of apartheid in 1994, South African newsrooms were predominantly operated by males who were Caucasian. When the foreign-owned companies moved into South Africa, they began employing more journalists, editors and managers who were black and/ or female.8 Prima facie this change appears beneficial, however, while foreign ownership may have helped open the door for equality in the newsroom, this model led to “severe cost cutting [jobs] and increased pressure for profits.”9 Herman Wasserman suggests, “even as the editors and staffs changed to reflect more racial diversity, [the media] continued to marginalize the experiences of the Black majority as they sought audiences that would be attractive to advertisers.”10 Thus, the end of apartheid did not eliminate the class or elitism that newspapers perpetuated because their audiences continued to be comprised of mainly people who were Caucasian and/or upper class. The foreign ownership shift also significantly contributed to the tabloidization of the mainstream media. Wasserman suggests that foreign ownership of the South African print media led South Africa to follow the United Kingdom by embracing tabloid journalism.11 It was the focus on “scandal, celebrity, superficiality, lack of seriousness, and entertainment or ‘infotainment’” instead of high quality investigative journalism, that had a significant impact on the

7 Supra Wasserman at 6-8. 8 Jacobs at 8. 9 Supra Wasserman at 7. 10 Tabloid Journalism In South Africa at 31. 11 Ibid at 34.


92

Carleton University Journal of Legal Studies

Vol. III Issue 1

media portrayal of Truth and Reconciliation Commission during the 1990s.12 Accordingly, the cases of Benzien and Mandela must be evaluated by considering the realities and impacts of foreign ownership, newsroom demographics and tabloidization. Benzien Case The TRC had many prominent hearings about crimes committed during the apartheid era, but few events garnered as much media attention as the case of police captain, Jeffery Benzien. During Benzien’s testimony in July of 1997, he admitted to torturing and killing numerous individuals while he was a member of the anti-terrorist branch of the Security Forces.13 All of South Africa was captivated by the media coverage of Benzien’s dramatic testimony. However, the media coverage of the Benzien case raises a number of concerns. An article written by John Yeld of the Cape Argus newspaper (owned by foreign newspaper conglomerate The Independent), focuses on Benzien as a victim of apartheid instead of portraying Gary Kuser, one of the members of the African National Congress (ANC) , who Benzien tortured, as a victim. The headline, “Top cop breaks down as he grills his torturer” suggests that even though Benzien did the torturing, he also should be treated as a victim of apartheid and receive amnesty for his exposure of the torture techniques he used during interrogation.14 Moreover, the sub-headline “Drama as cop faces his torturer”, implies that the torture victim had no issue confronting the man

1997.

12 Ibid at 35. 13 Borer at 11. 14 John Yeld, “Top cops breaks down as he grills his torturer”, Cape Argus. July 15,


Victims, Perpetrators and Tabloids

2011

93

who tortured him, while Benzien himself was the sole individual victimized by the TRC hearing.15 This article shows the South African print media often blurred the line between victims and perpetrators of apartheid, in order to try and promote the idea of universal reconciliation. Unfortunately, in striving for universal reconciliation, they managed to forget who the real victims of apartheid were, and undermined the real victims of torture and crimes of during apartheid. Roger Friedman of the Cape Times (also owned by foreign newspaper group The Independent) also reported on the Benzien amnesty hearings before the TRC. His article, “Police torturer shows how it’s done”, exemplifies the tabloidization of the South African print media.16 By its use of a scandalous and uninformative title coupled with suggestive images of Benzien demonstrating the “wet bag” torture technique in front of an audience at the TRC, the article seeks entice readers with cheap violence.17 Similar to Yeld article, this article focuses on Benzien as a victim, by quoting Benzien saying, “I did terrible things to members of the ANC, but as God is my witness, believe me, I have also suffered”18 By attempting to attract sympathy for Benzien as a victim of apartheid, South African newspapers failed to hold perpetrators accountable for their crimes and offend those South Africans who had been victims of human rights violations. Elizabeth Cole claims that the media’s coverage of the TRC’s hearings were problematic because of the media’s preference for sensationalism over 15 Ibid. 16 Roger Friedman, “Police torturer shows how it’s done”, Cape Times. July 15, 1997. 17 Ibid. 18 Supra Yeld.


94

Carleton University Journal of Legal Studies

Vol. III Issue 1

substance.19 Since the media attempted to captivate readers with headlines and sound bytes, it failed to focus on the victims.20 Cole also suggests that because of the media’s focus on the atrocities instead of the victims, perpetrators were portrayed as spectators, and victims and passive witnesses. This analysis is important because when it is applied to the Benzien articles, it shows the extensive gap in the media coverage of the TRC. The newspaper’s decision to focus on the police torturer seeking sympathy created a significant injustice for the real victims of apartheid, who were unable to get their story heard. Mandela Case Even more prominent than the Benzien testimony was the controversy surrounding Winnie Madikizela-Mandela.21 The accusations of kidnapping and murder for hire, made against Mandela during the TRC, became a huge media spectacle because of the prominence of her former husband, President Nelson Mandela. The Mandela case is important because it exemplifies how unwieldy the media can become when they are drawn to scandal and sensational coverage. The degeneration from investigative journalism to tabloid journalism is apparent with newspaper headlines (all in The Independent) that read, “Winnie At Bay: `Mother of the Nation’ linked to a long litany of horror”22, “Winnie Mandela: The Mother of the Nation or a murderous bully?”23 and 19 Elizabeth Cole, “Performance, Transitional Justice, and the Law: South Africa’s Truth Reconciliation Commission,” Theatre Journal, Vol. 59 (2007), 167-187. 20 Ibid. 21 Mary Braid, “South Africa: ANC attacks Winnie Mandela as ‘a liar and a charlatan’ The Independent, 20 Nov. 1997. 22 Mary Braid ““Winnie At Bay: `Mother of the Nation’ linked to a long litany of horror” The Independent, 25 November 1997. 23 Ibid. and


2011

Victims, Perpetrators and Tabloids

95

“ANC attacks Winnie Mandela as ‘a liar and a charlatan’”24 Some members of the African National Congress (ANC) used Winnie Mandela’s testimony to stir up political support for their cause by attempting to destroy her reputation while she ran for deputy leader of the ANC.25 With newspapers writing rhetoric like: “Nothing now seems too outlandish a claim; if she was accused of boiling and eating babies, eyebrows would hardly be raised,”26 the gravity of the accusations against Mandela in front of the TRC could not have been objectively understood by the public. The Mandela case is unique because she was a victim and perpetrator of apartheid. During the apartheid era,Winnie Mandela was banned for nine years, jailed, tortured and held in solitary confinement.27 Borer writes, “it is sometimes easy to forget that she was the target of state harassment and abuse for years.”28 During the TRC hearings, the media failed to put Mandela’s past into context. The South African press ignored the fact that Mandela was a victim of apartheid and tried to paint her as the “Angel of Death”29 and backed claims that “money will flood out of the country if she is elected.”30 By turning the Mandela testimony before the TRC into a media circus of sensationalized rhetoric, the media failed to give a voice to the victims of apartheid. The foreign-owned media accentuated the celebrity of Mandela in order to captivate its audience with drama and scandal. This distracted media 24 Braid, “South Africa: ANC attacks Winnie Mandela as ‘a liar and a charlatan’ 25 Mary Braid “Winnie Mandela: The Mother of the Nation or a murderous bully?” The Independent, 26 September 1997. 26 Ibid. 27 Borer at 8-10. 28 Ibid. 29 Mother of Nation or Murderous Bully? 30 Ibid.


96

Carleton University Journal of Legal Studies

Vol. III Issue 1

coverage from the real issues accusations of human rights violation before the TRC. By focusing print coverage on scandal, it served to benefit the the newspaper conglomerates instead of the South African people. Media and the Problem of Victimhood Both the Benzien and Mandela case show the media’s creation of a victim/perpetrator dichotomy. Unfortunately, to try and reduce apartheid to a victim/perpetrator relation is quite problematic and results from the foreign media’s use of tabloidization. Tristan Anne Borer suggests, “a conscientious objector is not the same as a torturer. Simply referring to all amnesty recipients as perpetrators, without taking the time to do a case by case analysis obscures the complexity of the category.”31 By the media simply casting Benzien as a perpetrator, it classifies him into a very broad group. Borer notes, by granting amnesty to Benzien it equates him on the same level as Tom Wiltshire Robbins, a member of the National Union of South African Students (NUSAS) who applied for amnesty for refusing to report for military training and be complicit in apartheid practices.32 The South African newspapers paper used the victim/ perpetrator dynamic in order to sell papers. But in simplifying the apartheid era into the victim/perpetrator discourse that the Truth and Reconciliation Commission promoted, they failed to serve the real victims of apartheid and give voice to their stories. Perhaps the biggest failure of the media was not highlighting and correcting the TRC’s definition of apartheid victim. In Mahmood Mamdani critique 31 Borer at 6-8. 32 Ibid.


Victims, Perpetrators and Tabloids

2011

97

of the TRC’s definition of victim, he states that the Commission failed in its definition of victim because it “acknowledged only individual victims.”33 This analysis is important because the media reinforced the TRC’s definition on victim. The tabloid newspaper coverage only told stories of individual atrocities, and failed to show the compounded effect they had the community. The media sought to show that the end of apartheid meant a new era for South African, but in doing so, it failed to highlight the socioeconomic realities of many communities. Through Mamdani pointing out the failure of the TRC’s definition, and overlapping that failure with the sensational coverage of the commission, it is clear that the South African print media failed to serve the best interests of the public. Conclusion By analyzing the Benzien and Mandela cases it has been shown there were problematic gaps in the media’s coverage of the TRC. These high profile cases exemplify the importance of scrutinizing the media coverage of the South African the TRC, in order to uncover the media’s stereotypical portrayal of apartheid victims and the resulting injustice for the real victims of apartheid. The media should learn to be aware of their biases and act appropriately to truthfully and impartially disseminate information to the public. Robert Martin notes the historical role of African States in controlling mass media, and the corresponding importance of independent media out33 Mahmood Mamdani, “Amnesty of Impunity? A preliminary critique of the Report of the Truth and Reconciliation Comission of South Africa.” In Identities, Affiliations and Allegiances, ed. by Seyla Benhabib, Ian Sharpiro, and Danilo Petranovic (Cambridge: Cambridge University Press, 2007), at 333.


Carleton University Journal of Legal Studies

98

Vol. III Issue 1

lets.34 Martin’s analysis is critical because the role of independent media’s in South Africa is very differs from American mainstream media. Martin claims that the media takes on a dualistic role of enhancing free speech and informing/mobilizing the people.35 Since the population depends on the media for knowledge, any flawed stereotype communicated to readers will not be scrutinized and perpetuated by the majority of society. In South Africa, the foreignowned independent media needed to prevent spreading problematic stereotypes to people. However, they failed to do this and it had a detrimental effect on real victims of apartheid. The issue of media perpetuating problematic stereotypes is significant and relevant because of the increasing dependency that individuals have on mass media, in both South Africa and around the world. Through researching and highlighting the gaps existent in South African newspaper coverage of the TRC, one can better identify underlying stereotypes that the news media promotes in society today and refute those stereotypes accordingly.

ern 340.

34 Robert Martin, “Building Independent Mass Media in Africa” The Journal of ModAfrican Studies, Vol. 30, No. 2 (Cambridge University Press 1992), pp. 331 35 Ibid.


2011

Victims, Perpetrators and Tabloids

99

References Secondary Sources Articles Borer, Tristan Anne. A Taxonomy of Victims and Perpetrators: Human Rights and Reconciliation in South Africa, 25 Hum. Rts. Q. 1088 (2003). Braid, Mary “South Africa: ANC attacks Winnie Mandela as ‘a liar and a charlatan’ The Independent, 20 Nov. 1997. Braid, Mary. ““Winnie At Bay: `Mother of the Nation’ linked to a long litany of horror” The Independent, 25 November 1997. Braid, Mary. “Winnie Mandela: The Mother of the Nation or a murderous bully?” The Independent, 26 September 1997. Broughton, Morris. Press and Politics in South Africa. Purnell & Sons: Cape Town 1961. Cole, Elizabeth “Performance, Transitional Justice, and the Law: South Africa’s Truth and Reconciliation Commission,” Theatre Journal, Vol. 59 (2007), 167-187. Friedman, Roger. “Police torturer shows how it’s done”, Cape Times. July 15, 1997. Jacobs, Sean. “How good is the South African Media for democracy? Mapping the South African public sphere after apartheid.” African and Asian Studies, (2002) at 8-9. Krabill, Ron “Symbiosis: Mass Media and the Truth and Reconciliation Commission of South Africa,” Media, Culture and Society (2002) 23. Mamdani, Mahmood “Amnesty of Impunity? A preliminary critique of the Report of the Truth and Reconciliation Commission of South Africa.” In Identities, Affiliations and Allegiances, ed. by Seyla Benhabib, Ian Sharpiro, and Danilo Petranovic (Cambridge: Cambridge University Press, 2007), at 333. Martin, Robert, “Building Independent Mass Media in Africa” The Journal of Modern African Studies, Vol. 30, No. 2 (Cambridge University Press 1992), pp. 331-340. Payne, Leigh “Confessional Performances: Perpetrators’ Testimonies to the South African Truth and Reconciliation Commission,” in Neil Whitehead, ed., Violence (Santa Fe: School of American Research Press, 2004), 243-


100

Carleton University Journal of Legal Studies

Vol. III Issue 1

365. Wasserman, Herman. Tabloid Journalism in South Africa: True Story! Bloomington: Indiana UP, 2010. Print. Wasserman, Herman and S. Rao. “The Glocalization of Journalism Ethics.” Journalism 9.2 (2008): 163-81. Yeld, John“Top cops breaks down as he grills his torturer”, Cape Argus. July 15, 1997


2011

Victims, Perpetrators and Tabloids

101


Carleton University Journal of Legal Studies

102

Vol. III Issue 1

The Canadian Securities Act & Federal Legislative Authority Naila Baig

Economic growth and prosperity in Canada are dependent on strong capital markets. Due to the changing global economy in which increasingly complex financial products and methods of distribution and trading are used, it is imperative that Canada respond in a competent and efficient manner. Although Canadaâ&#x20AC;&#x2122;s present financial regulatory regime has served the country well during the recent global financial crisis, it can be further developed to combat the fast growing, competitive financial services industry. This paper attempts to look at the benefits of the Canadian Securities Act by identifying how it will affect the Canadian financial sector as well as how it has been used in the cases of R. v. Crown Zellerbach Canada Limited and General Motors of Canada Ltd. v. City National Leasing. By focusing on how the act was established in these cases, the benefits of The Canadian Securities Act will become apparent and the reasons for enacting this law will become clear.

T

he creation of a national securities regulator, as proposed under the Canadian Securities Act by the Government of Canada, would not only protect investors and promote market integrity and stability,


2011

The Canadian Securities Act and Federal Legislative Authority

103

it would also place Canada into the list of major industrialized countries that have a national securities regulator1. Therefore, the federal government has referred the Canadian Securities Act to the Supreme Court of Canada for a ruling on whether the federal government has the proper authority under the Constitution to enact a national securities regime. Some provinces argue that they, and not the federal government, retain authority over the regulation of capital markets under section 92(13) property and civil rights in the province of the Constitution Act, 1867. Nonetheless, due to powers granted to the federal government within the Constitution Act, 1867, such as the power of POGG (peace, order and good government), the power of section 91(2) trade and commerce, and the power of section 91(27) criminal law, the proposed Canadian Securities Act is thus within the legislative authority of the Parliament of Canada. The Canadian Securities Act has been based on existing provincial legislation, however, under the POGG power of the Constitution Act, 1867, the legislative authority of this Act falls in the jurisdiction of the federal government. According to the opening words contained in section 91 of the Constitution Act, 1867, “it shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada.”2 The former Privy Council established that under the POGG power, the federal government had the authority to enact laws in keeping with three distinct branches of the POGG doctrine: “laws to fill gaps in the distribution of powers, laws to deal with national emergencies, and 1 Annette Robertson, “Government of Canada Moves to Protect Canadian Investors” States News Service (26 May 2010) (InfoTrac). 2 The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3.


Carleton University Journal of Legal Studies

104

Vol. III Issue 1

laws to deal with matters of national concern.”3 These three branches of power under the peace, order and good government doctrine allow the federal government to make laws that otherwise would have fallen under the jurisdiction of provincial legislatures. The purpose of the proposed Canadian Securities Act is to “to harmonize the existing provincial and territorial securities legislation into a single federal statute by eliminating duplication across Canada’s different provinces and territories.”4 Consequently, there is a great need for a unified securities regulator that is fit to compete with global capital markets. Since this need to support a national securities regime has existed for decades, and after the loss of several Canadians’ savings in the recent financial crisis, the issue of stronger securities legislation is a concern for the entire nation.5 In the face of such a large national concern, it is imperative for the federal government to take action in order to satisfy the peace, order and good government of Canada. As a result, the ‘national concern’ power of POGG under section 91 of the Constitution Act, 1867, grants the federal government, and not the provincial governments, the legislative authority to enact the proposed Canadian Securities Act. A significant case that took place in 1988, R. v. Crown Zellerbach Canada Limited, demonstrates how the Supreme Court of Canada applied the ‘national concern’ branch of POGG in order to justify the act legislated by the federal government. During its logging operations, Crown Zellerbach Canada Ltd. 3 Peter Hogg & Wade Wright, “Canadian Federalism, the Privy Council and the Supreme Court” (2005) 38 U.B.C. L. Rev. 329 (Lexis). 4 Jeffrey Leon, “The Potential Impact of the Proposed Canadian Securities Act” Mondaq Business Briefing (26 August 2010) (Infotrac). 5 John Ibbitson, “National securities regulator worth provinces’ fury”, The Globe and Mail (27 May 2010) A6 CPI.Q (Canadian Periodicals).


2011

The Canadian Securities Act and Federal Legislative Authority

105

dumped woodwaste in the waters of Beaver Cove, an area within the province of British Columbia, and was charged with contravening section 4(1) of the Ocean Dumping Control Act.6 The federal legislation prohibits the dumping of any substance at sea except “in accordance with the terms and conditions of a permit, the sea being defined for the purposes of the Act as including the internal waters of Canada other than fresh waters.”7 Although Crown Zellerbach Canada Ltd. did have a permit, the particular site at which the dumping occurred was not covered under the permit. This case was taken to court in order to determine whether the federal legislative jurisdiction to regulate the dumping of substances at sea extended to the regulation of dumping in provincial marine waters. The Supreme Court of Canada held that section 4(1) of the Act was constitutionally valid as enacted in relation to a matter falling within the national concern doctrine of the peace, order and good government power. A majority of the Supreme Court of Canada prohibited dumping at sea on the basis that “marine pollution (which resulted from the dumping of the woodwaste) was a matter of national concern that was distinct from matters of provincial jurisdiction and that was beyond the capacity of the provinces to control.”8 They also stated that because of its “predominantly extra‑provincial as well as international character and implications, marine pollution is clearly a matter of concern to Canada as a whole.”9 Initially the case of R. v. Crown Zellerbach Canada Limited was dismissed by the Provincial Court judge and the British Columbia Court of Appeal. Both 6 R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401 at para12 [Crown]. 7 Ibid at para 1. 8 Peter Hogg, “Constitutional Authority Over Greenhouse Gas Emissions” (2009) 46 Alta. L. Rev. 507 (Lexis). 9 Ibid at para 25.


106

Carleton University Journal of Legal Studies

Vol. III Issue 1

held that “section 4(1) of the Act was ultra vires Parliament.”10 However, the Supreme Court of Canada found that the matter of marine pollution extended beyond the powers of the provincial government due to its international repercussions and therefore, it fell into the jurisdiction of the federal government. The Supreme Court justified the matter of marine pollution as a national concern under POGG, distinguishable from a provincial matter. Similarly, in the case of the proposed Canadian Securities Act, the government is advocating that the need for a national securities regulator is one of national concern. In addition, the impact of the proposed Canadian Securities Act is still reconcilable with provincial legislatures since it will be “voluntary and each province and territory would be able to choose whether or not to opt in to the proposed national securities regime; in the event a province or territory does not opt into the Act, its provincial legislation would continue to apply.”11 Since the matter of the Canadian Securities Act is distinguishable as a matter of national concern, just like the case of R. v. Crown Zellerbach Canada Limited, and yet reconcilable with the provincial legislatures, it is therefore intra vires the legislative authority of the Parliament of Canada. Another power in the Canadian Constitution that supports the federal government’s position that it has the authority to enact the Canadian Securities Act is section 91(2), the trade and commerce power. Under section 91(2), the regulation of trade and commerce is within the jurisdiction of Parliament.12 The issue of the Canadian Securities Act is one which affects provincial and national trade and commerce, as it aims to: 10 Crown, Supra note 6 at para 3. 11 Leon, Supra note 4 at 1. 12 Supra note 2 at 22.


2011

The Canadian Securities Act and Federal Legislative Authority

107

Provide protection to investors from unfair, improper or fraudulent practices; foster fair, efficient and competitive capital markets in which the public has confidence; and contribute, as part of the Canadian financial regulatory framework, to the integrity and stability of the financial system.13 Particularly, it is the second branch of the trade and commerce power, the “general” branch, demonstrated in the case of General Motors of Canada Ltd. v. City National Leasing, which grants the federal government the legislative authority to enact the Canadian Securities Act. In the case of General Motors of Canada Ltd. v. City National Leasing, the judges followed the narrowly defined scope of the trade and commerce power as established previously by the Privy Council in 1881.14 Sir Montague Smith of the Privy Council in 1881 defined the general branch of the trade and commerce power as including “political arrangements in regard to trade requiring the sanction of parliament, regulation in matters of inter-provincial concern, and ... general regulation of trade affecting the whole dominion.”15 The problem with the current securities regulator in Ontario is that the Ontario Securities Commission governs both the regulation of capital markets and the enforcement of securities laws in Ontario.16 This structure has “long been criticized by those who see an inherent bias in having a single body create the rules and then both investigate and adjudicate alleged breaches of those rules.”17 The Canadian Securities Act proposes to divide this unitary structure into two distinct divisions, the Regulatory Division and a 13 Margot Finley, “Proposed Canadian Securities Act - The Enforcement Provisions” Mondaq Business Briefing (1 June 2010) (LegalTrac). 14 General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641 [General]. 15 Ibid. 16 Leon, Supra note 4 at 2. 17 Ibid.


Carleton University Journal of Legal Studies

108

Vol. III Issue 1

completely independent Canadian Securities Tribunal in which the “Regulatory Division would be responsible for the regulation of capital markets in Canada and the Tribunal would deal with the adjudication of securities regulatory matters.”18 As these two divisions would be in charge of governing matters of inter-provincial concern, such as administrative sanctions and civil orders, and in general, trade affecting Canada as a whole, the proposed Canadian Securities Act would thus fall under the legislative jurisdiction of the federal government. Since the proposed Act seeks to unite the capital markets within Canada and provide a more efficient economic system affecting the whole Dominion, as a result, the Act falls under the general branch of section 91(2) of trade and commerce power and is within the legislative authority of the Parliament of Canada. Finally, section 91(27) of the Constitution Act, 1867, whereby the federal government is granted the power of Criminal Law, allows the Parliament the authority to legislate the proposed Canadian Securities Act. A significant portion of the proposed Canadian Securities Act deals with regulatory and criminal offences. Under the Act, the Canadian Securities Regulatory Authority (CSRA) would have the power to undertake a number of regulatory enforcement actions for violations of the proposed Act that could result in a range of sanctions. Notably, the sanctions for regulatory offences, which would be prosecuted in court by a provincial or federal Crown Attorney, can include “fines of up to $5 million or imprisonment for a term of not more than five years less a day.”19 In addition, the proposed Act also plans to introduce new 18 Finley, Supra note 13 at 1. 19 Department of Finance Canada, Proposed Canadian Securities Act, (Ottawa: Minister of Finance, 2010).


2011

The Canadian Securities Act and Federal Legislative Authority

109

securities-related criminal offences that are “equivalent to those that are currently prescribed in the Criminal Code, including offences for securities fraud, market manipulation, insider trading and misrepresentation. These offences would apply to both participating and non-participating jurisdictions.”20 The Act also contains the “aggravating circumstances, non-mitigating factors and maximum sentences that currently apply to securities-related criminal offences in the Criminal Code as well as the strengthened sentencing measures for fraud.”21 Under a national securities regulator, enforcement of securities policies would be stricter and the Act would also place a “duty to assist” on provinces regarding parties that violate the Act and thus are subject to criminal CSRA investigations.22 As criminal law and enforcement is a power granted only to the federal government under section 91(27) of the Constitution Act, 1867, the provincial parliaments therefore do not have the authority to regulate capital markets. All of the provisions under the Act regarding criminal offences and enforcement can only be established by the Parliament of Canada. The criminal laws and enforcement policies proposed in the Act are necessary to the creation of a national securities regulator since it would make the securities regulator stronger and more stable. As a result, due to the importance of criminal regulation within the proposed Act, only the federal government could have the authority to regulate capital markets. Therefore, through the power of section 91(27) of Criminal Law in the Canadian Constitution, the Canadian Securities Act is intra vires the legislative authority of the Parliament of Canada. Some provinces within Canada, such as Alberta and Quebec, believe 20 Ibid at 82. 21 Finley, Supra note 13 at 2. 22 Ibid at 3.


110

Carleton University Journal of Legal Studies

Vol. III Issue 1

that the federal government should not retain the authority over the regulation of capital markets within the provinces. These provinces believe that it is within their jurisdiction to regulate investment and capital markets due to the power of â&#x20AC;&#x2DC;property and civil rights in the provinceâ&#x20AC;&#x2122; granted to them under section 92(13) of the Constitution Act, 1867.23 This power gives the provinces exclusive jurisdiction to regulate securities within each province. While the provinces do have the power of section 92(13), it is also equally important to consider how a national securities regulator is beneficial to Canada as a whole. During the economic crisis, several Canadians lost their savings, pension plans suffered, workers lost their employment, and investors lost huge funds. In order to prevent Canada from suffering financial turmoil in a future global recession, a national securities regulator with stricter enforcement and consistent application is necessary. A national securities regulator serves to address and resolve a national concern, unite and stabilize an economic system affecting the whole country, and introduce and enforce criminal legislation that would help reduce crimes of fraud, misrepresentation, insider trading and tipping, etc. As a result, in matters where the entire nation is concerned such as the regulation of capital markets, the Parliament of Canada has legislative authority. In conclusion, while the Supreme Court of Canada has yet to rule whether the Canadian Securities Act is within the legislative authority of the Parliament of Canada, it is evident from the reasons and constitutional references above that the proposed Act does fall under the jurisdiction of the federal government. In the opening words of section 91 of the Constitution, under the peace, order and good government power, specifically the branch of 23 Supra, note 2 at 25.


2011

The Canadian Securities Act and Federal Legislative Authority

111

national concern, there is support for the federal governmentâ&#x20AC;&#x2122;s position that it has the authority to enact the Canadian Securities Act. Section 91(2) of the Constitution, the power of general trade and commerce, also maintains the argument that the Canadian Securities Act is within the legislative authority of the Parliament of Canada. Lastly, section 91(27) of the Constitution, the power of criminal law, also supports that the federal government, not the provincial government, has the authority to legislate such a statute. A national securities regulator would allow Canada to speak with a collective voice on securities regulation, something which it has been unable to do amidst other industrialized powers. In all, a united financial system would give Canada the opportunity to compete skilfully in global markets and contribute to greater growth, consistency, and organization within the capital markets at home.


112

Carleton University Journal of Legal Studies

Vol. III Issue 1

References Annette Robertson, “Government of Canada Moves to Protect Canadian Investors” States News Service (26 May 2010) (LegalTrac). Department of Finance Canada, Proposed Canadian Securities Act, (Ottawa: Minister of Finance, 2010). General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641 [General]. Jeffrey Leon, “The Potential Impact of the Proposed Canadian Securities Act” Mondaq Business Briefing (26 August 2010) (LegalTrac). John Ibbitson, “National securities regulator worth provinces’ fury”, The Globe and Mail (27 May 2010) A6 CPI.Q (Canadian Periodicals). Margot Finley, “Proposed Canadian Securities Act - The Enforcement Provisions” Mondaq Business Briefing (1 June 2010) (LegalTrac). Peter Hogg, “Constitutional Authority Over Greenhouse Gas Emissions” (2009) 46 Alta. L. Rev. 507 (Lexis) Peter Hogg & Wade Wright, “Canadian Federalism, the Privy Council and the Supreme Court” (2005) 38 U.B.C. L. Rev. 329 (Lexis). R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401 [Crown]. The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3.


2011

The Canadian Securities Act and Federal Legislative Authority

113


114

Carleton University Journal of Legal Studies

Vol. III Issue 1

The Proposed Canadian Securities Act and Constitutionality: Can the federal government legislate? Kyle Elliott

The idea of a single, national securities regulator has long been a subject of great debate in Canada. For decades the provinces have found themselves at odds with the federal government over who can and who should legislate in regards to Canadian securities regulation. Traditionally the area of law has been seen to fall under the provincesâ&#x20AC;&#x2122; property and civil rights power afforded by s. 92(13) of the Constitution Act, 1867. However the last half-century has seen increasing calls for the federalization of securities regulation. This push for federalization finally came to a head last year when on May 26, 2010 the Parliament of Canada tabled the Canadian Securities Act (CSA). Seemingly wanting to move ahead and wanting to put an end to any uncertainty, Parliament concurrently filed a reference with the Supreme Court of Canada, asking if the proposed Canadian Securities Act is within the legislative authority of the Parliament of Canada. This essay, despite recognizing merits in the arguments of both sides, ultimately answers this question in the negative.


2011

The Proposed Canadian Securities Act and Constitutionality

115

B

efore diving right in it is perhaps worth considering the position of the federal government and how it led to the tabling of the Proposed Canadian Securities Act. To understand this position allows one to

better understand why the analysis is structured the way it is. As mentioned, a decades-long debate surrounding the issue saw a variety of expert and academic opinions suggesting reform in favour of the federalization of securities regulation. Looking as far back to the report tabled by the Porter commission in 1964 there have been a variety of positions identified through which Parliamentâ&#x20AC;&#x2122;s legislative authority could be argued. In realizing the constitutional complexities of enacting concurrent federal legislation, a key argument has been identified as that which would prove most likely to be successful. Generally most have considered the federal trade and commerce power under s. 91(2) of the Constitution Act to be this key argument. It is, in fact, the federal trade and commerce power that provides the basis from which the federal government supports the core of the CSA. Despite what might be inferred by its wording in the Constitution, the trade and commerce power does not broadly confer jurisdiction for all trade and commerce. Instead it receives a much more narrow scope. It is worth noting that the trade and commerce power has two branches: general and interprovincial and international. There seems to be considerable agreement that the general branch more clearly demonstrates the position that authorizes a comprehensive securities regime.1 Three constitutional opinions were commissioned as part of the research that 1 Wise Personsâ&#x20AC;&#x2122; Committee to Review the Structure of Securities Regulation in Canada, Re: Constitutional Opinion Concerning the Canadian Securities Commission Model by L. Yves Fortier, (Ottawa: Department of Finance, 2003) at 3.


116

Carleton University Journal of Legal Studies

Vol. III Issue 1

backed the report published by the Wise Persons’ Committee in 2003. In each of them it was agreed that the trade and commerce power “2gave the strongest basis for enacting the Act.” As such, this became the line of argumentation adopted by the federal government in arguing their legislative authority. To be clear, it is the position of the author that a constitutional basis for the establishment of a federal securities regulator under the trade and commerce power may exist. This paper does not deny this. However, it is put forth that the proposed CSA, as tabled, is unconstitutional. For this reason, and for the purpose of this paper, focus is limited to the analysis of the arguments put forth by the federal government. The Alberta and Quebec References In assessing the constitutionality of the Proposed Canadian Securities Act consideration will be given to Reference re Securities Act (Canada)3 and Quebec (Procureure generale) c. Canada (Procureure generale)4. The two were recent references to the provinces’ respective appeal courts essentially asking the same question as that in Parliament’s reference to the Supreme Court. This consideration is worthwhile as both courts took a similar approach to answering the question. And though the decisions of these courts can in no way bind the Supreme Court, they can and do provide insight into a likely frame of analysis that the SCC may decide to follow.5 Analysis of the main issues laid 2 Ibid at 3. 3 Reference re Securities Act (Canada), 2011 ABCA 77. 4 Quebec (Procureure generale) c. Canada (Procureure generale), 2011 QCCA 591. 5 Jeffrey Leon et al., “Round I To The Provinces: Alberta Court of Appeal Rejects Canadian Securities Act as Unconstitutional” Mondaq Business Briefing (8 April 2011), online: Mondaq Business Briefing <http://www.mondaq.com>.


2011

The Proposed Canadian Securities Act and Constitutionality

117

out by the courts then form much of the focus of this paper as the courts were forced to determine the CSA’s pith and substance, whether it should fall under the federal government’s general trade and commerce power, and then consequently whether the double aspect doctrine should apply. Pith and Substance As with any case concerning the division of powers, understanding the pith and substance is essential. The first step in this sort of analysis is to determine the essential feature of the law by looking at its purpose and effect. In the Alberta reference both the federal government and the province agreed, “that the pith and substance of the proposed legislation is the regulation of the participants in the public capital markets in Canada, and transactions relating to the raising of capital.”6 As a precedent was earlier established in Global Securities Corp. v. British Columbia (Securities Commission)7 this was seen to be an area of provincial jurisdiction under the “property and civil rights” power. The federal government was not disputing this, rather they insisted that they had concurrent jurisdiction under the “trade and commerce” power, as the statute concerned comprehensive national regulation that was beyond the ability of any single province or group of provinces.8 In both Alberta and Quebec the majority of justices refused to see it this way, noting that the existing case law clearly supports and always has supported securities regulation as a matter of ‘property and civil rights.’ This present-day scope of the power was stated in the Parsons case, wherein such a broad reading of the trade and commerce power 6 Reference, Supra note 5 at para. 14. 7 2000 SCC 21, [2000] 1 S.C.R. 494 at para. 33. 8 Reference, Supra note 5 at para. 17.


118

Carleton University Journal of Legal Studies

Vol. III Issue 1

would have been seen to “constitute too great an invasion of the provincial jurisdiction over property and civil rights.”9 Some may argue that the courts erred in their judgment. The lone dissenting opinion of Justice Daphond in the Quebec reference would argue this, as he identified the pith and substance more broadly as being “the regulation of all the participants in a capital market that has become a single, integrated, pan-Canadian market, characterized by mainly interprovincial and international transactions.”10 There are at least two problems with this opinion and with the federal government’s arguments. The first problem stems from suggesting that such regulation was ‘beyond the ability’ of the provinces. Parliament argues that this stems from the fact that the securities market has changed. Surely, it can be appreciated that the current state of Canadian securities markets has evolved, becoming more tightly interwoven, to a point where a single corporation owns and operates all of the major securities exchanges in the country.11 But more so than just pointing out the fact that present day securities markets have taken on an increasingly interprovincial and international nature, it is being argued that the courts must give consideration to the effect a fragmented regulation system has on an interprovincial and international system. This argument may follow 9 Wise Persons’ Committee to Review the Structure of Securities Regulation in Canada, Re: Constitutional Opinion on Securities Regulation by Allen McEachern, (Ottawa: Department of Finance, 2003) at 8. 10 Jeffrey Leon et al., “Canada: Round II To The Provinces: Quebec Court of Appeal Rejects Canadian Securities Act as Unconstitutional” Mondaq Business Briefing (11 April 2011), online: Mondaq Business Briefing <http://www.mondaq.com>. 11 John J. Magyar, “Constitutional Complexities Involved in the Implementation of a Federal Securities Regulation Regime in Canada: The View from 2009”, online: (2009) Social Science Research Network at 2 <http://ssrn.com/abstract=1784248>.


2011

The Proposed Canadian Securities Act and Constitutionality

119

from a reading of Ward v. Canada (Attorney General)12, wherein pith and substance analysis was re-articulated and where the question could not simply be whether the Act regulated participation in public capital markets in Canada, but also why it attempted to regulate such behaviour. For Parliament, in this case, the answer as to ‘why’ seems to stem from the very aspect that the courts have overlooked (that of the system’s interprovincial and international nature). It must be noted though, that taking this into consideration would then require the courts to make a judgment of efficacy. That is, if the reason for a federal securities act stems from the effects of a fragmented system then that fragmented system must be shown to be ineffective. However, it is not up to the court to make this judgment. So even though the federal government may put forth that the purpose of the proposed legislation is to enhance regulation of the system so as to simplify the process for participants, ensure consistent regulatory responses and to allow the system to respond to market innovations and emerging issues in a timely manner, this is of no concern to the court. That is because again, determining the most efficient way the system can operate is not the court’s task. In fact, in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters it was essentially held that “some inefficiency is one of the hallmarks of a federal system.”13 Just because Parliament believes it would be advantageous to centralize power does not alter the terms of the Constitution Act.14 The second problem comes from relying on the national scope of legislation (the ‘comprehensive national securities regulation’) as a reason that justi12 2002 SCC 17, [2002] S.C.R. 569. 13 Reference, Supra note 5 at para. 10. 14 Ibid.


120

Carleton University Journal of Legal Studies

Vol. III Issue 1

fies jurisdiction. The Alberta judgment pointed out that “a matter does not fall under federal jurisdiction just because federal legislation happens to apply all across the country.”15 At the same time, they reaffirmed what was upheld in General Motors of Canada Ltd. v. City National Leasing that “merely because something is of general interest throughout Canada is not enough to create federal jurisdiction.”16 Trade and Commerce As mentioned, there has seemed to long be a consensus that the strongest basis for claiming legislative authority to establish the CSA was under the general branch of the trade and commerce power. Much of the guidelines that advise on this issue of constitutional authority under this power take a cautious approach so as not to disturb the fragile balance that is Canadian federalism. It is accepted that a law that does not satisfy the pith and substance analysis may still be considered constitutional under the ancillary effects doctrine. Such requires the satisfaction of the ‘rational connection’ test however. This test to determine what legislation may be validly enacted under the ‘general’ branch was laid out in the aforementioned General Motors of Canada Ltd. v. City National Leasing: the impugned legislation must be part of a general regulatory scheme; the scheme must be monitored by the continuing oversight of a regulatoryagency; the legislation must be concerned with trade as a whole rather than with a particular industry; the legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting; and the failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme 15 Ibid. at para. 17. 16 [1989] 1 S.C.R. 641 at para. 660.


2011

The Proposed Canadian Securities Act and Constitutionality

121

in other parts of the country.17

The federal government knew that they would have to satisfy these five indicia to successfully argue their position that regulation of securities markets raises a concern of genuine interest. In both Quebec and Alberta, neither of the courts accepted that the Act sufficiently satisfied all five of the indicia. While there seemed to be consensus that the first two were somewhat satisfied, the courts were of the opinion that the last three were not. Firstly, it was held that the CSA did not concern trade as a whole, but instead it was only concerned with a particular industry or even a particular branch of trade, as the securities industry has been recognized as particular segment of the economy under Canadian Western Bank18 and Lymburn v. Mayland.19,20 Secondly, it was decided that the provinces were not incapable of regulating the securities markets. They were constitutionally empowered to enact regulations, as first established in Parsons and had been doing so for much of Canadian history. As to how effective they were was not up to the courts to decide. It was upon the federal government to demonstrate not that such legislation would be more or less impossible to be enacted by the provinces, but rather that the industry could not be successfully regulated at the provincial level.21 They failed in that respect. Thirdly, the optional nature of the Act that is the ability of provinces to â&#x20AC;&#x2DC;opt-inâ&#x20AC;&#x2122; completely negated the idea that the failure to include one or more 17 Ibid. at 661-3. 18 Canadian Western Bank v. Alberta [2007] 2 S.C.R. 3 at para. 1. 19 Lymburn v. Mayland [1932] A.C. 318 at 324-5. 20 Reference, Supra note 5 at para. 40. 21 Ibid.


122

Carleton University Journal of Legal Studies

Vol. III Issue 1

provinces would jeopardize the scheme. The design of the legislation in and of itself thus puts forth that it can operate successfully without all the provinces. While the courts readily acknowledge that all five indicia need not be satisfied, and that those listed were not exhaustive, attention must be paid to existing case law which calls for heightened scrutiny when considering the encroachment of one level of government over the other in such a serious manner. The provinces have, for as long as it’s been decided, had power over securities regulation and such encroachment over provincial powers may serve to erode the oft fragile balance of federalism. Laid out in General Motors of Canada Ltd.22 and reaffirmed in Kirkbi AG23 it was held that “if the impugned provision is highly intrusive vis-à-vis provincial powers then a stricter test is appropriate.” Such is the case of that herein. Double Aspect Doctrine After considering the CSA’s pith and substance and then whether it might be supported under the ‘general’ branch of the ‘trade and commerce’ power, the courts then considered the applicability of the double aspect doctrine. The double aspect doctrine “recognizes that overlapping federal and provincial legislation may both be constitutional.”24 In a situation where compliance with one law breaches the other, the federal law would always prevail. Though the federal jurisdiction would be paramount to that of the province and would allow them to regulate the system as a whole, there could still be intraprovincial dimensions that would leave the provinces with some authority. 22 General, Supra note 18 at 661. 23 Kirkbi AG v. Ritvik Holdings Inc., [2005] 3 S.C.R. 302 at para. 16. 24 Leon, Supra note 12 at 3.


2011

The Proposed Canadian Securities Act and Constitutionality

123

In determining the applicability of the double aspect doctrine, it must first be established that both provincial and federal legislation are valid. In both cases consideration of the double aspect doctrine was quickly dismissed as neither had regarded that there existed a constitutional basis for enacting the CSA. Furthermore, the courts went on to point out that even had the CSA been established as valid never before had the double aspect doctrine been applied to two different legislations that were â&#x20AC;&#x153;wholesale duplications of each other.â&#x20AC;?25 There would have to have been a distinct federal purpose for the CSA, yet it had already been decided that the CSA was in pith and substance for the same purpose as the provincial regulation acts. In Alberta the judges concluded that applying the double aspect doctrine required great caution as concurrent jurisdiction ruled only by paramountcy was contrary to the principle of federalism.26 Conclusion The regulation of securities markets has long been established to be under the jurisdiction of the provinces. For as long as it has been decided the provinces have effectively regulated the industry and any encroachment into the area by the federal government must be considered with great caution. The Proposed Canadian Securities Act attempts to regulate concurrently with current Acts in place by the provinces, yet the CSA presents very little that is new. The pith and substance of the CSA is the same as that of the provincial Acts in that it attempts to regulate the participants in the public capital markets of 25 Reference, Supra note 5 at para 45. 26 Ibid. at para. 46.


124

Carleton University Journal of Legal Studies

Vol. III Issue 1

Canada. As this has long been established to be an area of jurisdiction under provincial powers, there is no reason to intrude on these grounds. As the CSA did not satisfy the pith and substance analysis, neither did it satisfy the rational connection test to establish validity under the general branch of trade and commerce. In proceeding with caution there was no persuasive argument to recognize such as the CSA was unable to satisfy three of the five indicia generally required. In light of not satisfying the pith and substance analysis, nor the rational connection test there was little to consider in the way of applying the double aspect doctrine. The CSA could not be seen to be validly established and thus could not receive any benefit from the double aspect doctrine. Thus, in conclusion as it currently stands, it would be unconstitutional for the federal government to pass the Proposed Canadian Securities Act.


2011

The Proposed Canadian Securities Act and Constitutionality

125

References LEGISLATION Constitution Act, 1867. JURISPRUDENCE Citizen’s Insurance Company of Canada v. Parsons, [1881] 7 App. Cas. 96. General Motors of Canada Ltd. v. City National Leasing [1989] 1 S.C.R. 641. Global Securities Corp. v. British Columbia (Securities Commission) 2000 SCC 21, [2000] 1 S.C.R. 494. Kirkbi AG v. Ritvik Holdings Inc., [2005] 3 S.C.R. 302. Quebec (Procureure generale) c. Canada (Procureure generale), 2011 QCCA 591. Reference re Securities Act (Canada), 2011 ABCA 77. Ward v. Canada (Attorney General) 2002 SCC 17, [2002] S.C.R. 569. SECONDARY MATERIAL Leon, Jeffrey et al., “Round I To The Provinces: Alberta Court of Appeal Rejects Canadian Securities Act as Unconstitutional” Mondaq Business Briefing (8 April 2011), online: Mondaq Business Briefing <http://www.mondaq. com>. Leon, Jeffrey et al., “Canada: Round II To The Provinces: Quebec Court of Appeal Rejects Canadian Securities Act as Unconstitutional” Mondaq Business Briefing (11 April 2011), online: Mondaq Business Briefing <http:// www.mondaq.com>. Magyar, John J. “Constitutional Complexities Involved in the Implementation of a Federal Securities Regulation Regime in Canada: The View from 2009”, online: (2009) Social Science Research Network at 2 <http://ssrn. com/abstract=1784248>. Supreme Court of Canada, SCC Case Information-Summary (Case Summary) (Ottawa: Supreme Court of Canada, 2010), online: Supreme Court of Canada http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng. aspx?cas=33718 Wise Persons’ Committee to Review the Structure of Securities Regulation in


126

Carleton University Journal of Legal Studies

Vol. III Issue 1

Canada, Re: Constitutional Opinion on Securities Regulation by Allen McEachern, (Ottawa: Department of Finance, 2003) Wise Personsâ&#x20AC;&#x2122; Committee to Review the Structure of Securities Regulation in Canada, Re: Constitutional Opinion Concerning the Canadian Securities Commission Model by L. Yves Fortier, (Ottawa: Department of Finance, 2003)


2011

The Proposed Canadian Securities Act and Constitutionality

127


128

Carleton University Journal of Legal Studies

Vol. III Issue 1

Emergency Circumstances and Deferential Attitudes: A Recipe for Discrimination in the Cases of Japanese Internment During the Second World War Mark Calderaro In the aftermath of the Second World War, having fought against the atrocities committed in Europe, people began to reflect upon their own governmentâ&#x20AC;&#x2122;s actions against minority group members. Specifically, there were Supreme Court cases, which questioned the constitutionality of both the American and Canadian governmentsâ&#x20AC;&#x2122; internment of citizens of Japanese ancestry. While today these actions are undeniably considered to have been discriminatory and racist; at the time the Supreme Courts decisions in both countries upheld these executive orders as constitutional. To simply draw conclusions that those judges were motivated by racial factors not only lacks substantial evidence, but also fails to provide any useful lessons for adjudicators and legislators who wish to prevent such intolerance in the future. This paper therefore attempts to examine the legal principles, which the judges behind the majority decisions in Korematsu v. the United States (1944) and Reference Re Validity of Orders in Council in Relation to Persons of the Japanese Race (1946) used to justify this systemic racism. By focusing on these principles, it becomes evident which areas of the existing conventions, legislations and the constitution could possibly have


Emergency Circumstances and Deferential Attitudes

2011

129

permitted suspension of due process and other civil liberties on the basis of race. Only once these inadequacies are discovered does it become possible to amend and improve the law in order to protect minority groups and secure a just society.

I

t is undeniable that the treatment of Japanese Americans under Executive Order 9066 and the treatment of Japanese Canadians under the War Measures Act during the Second World War were deplorably racist and base-

less. The federal governments in both Canada and the United States abused the sweeping powers at their disposal at the expense of the civil liberties of a racial minority during the war against Japan. People of Japanese ancestry who resided between the Pacific coast and the Rocky Mountains, were detained in internment camps for the duration of most of the war and for some time after the war had ended. The Canadian government then forcibly deported and repatriated some four thousand Japanese Canadians to Japan while prohibiting other displaced Japanese Canadians from returning to coastal British Columbia, or seeking employment in the fishing industry.1 The Canadian government was able to take these measures through an Order in Council under the War Measures Act, while similar actions taken against individuals of Japanese ancestry in the United States were made possible though a Presidential Executive Order. The Executive Order 9066 deemed certain areas along the western coast military zones from which any or all persons may be excluded.2 Both in Canada and the United States, the constitutionality of the Order in Council and the Executive Order were challenged before their respective Supreme Courts in the landmark cases: Korematsu v. the United States (1944) and in


130

Carleton University Journal of Legal Studies

Vol. III Issue 1

Canada, through a Supreme Court Reference Re Validity of Orders in Council in Relation to Persons of the Japanese Race (1946). In both circumstances, the constitutionality of the governmentâ&#x20AC;&#x2122;s actions was upheld by the court in blatant conflict with the principles of the rule of law, specifically due process. In the United States, due process is expressly guaranteed in the written Bill of Rights, whereas in Canada, it was not explicitly written into the Constitution at the time. Through common law, Canadian judges interpreted the rule of law and due process to be present in the preamble of the British North America Act, 1867, which described the Canadian Constitution as similar to that of Great Britain, which included an unwritten bill of rights.3 While it is strikingly clear that both governmentsâ&#x20AC;&#x2122; actions were racially discriminatory, it is less clear that the decisions to sustain the constitutionality of their actions by the Supreme Courts were similarly racially motivated. One can only speculate as to the level of racist sentiments that may or may not have influenced the judges majority decisions, as they relied on two main principles, independent of race, to explain their positions. There were judges in both countries that dissented, arguing that the circumstances at hand did not permit the government to suspend civil liberties based on racial discrimination. However, it is difficult to label the judges as racist because the courts were not responsible for enacting these discriminatory measures, but rather they responded to an issue brought before them. The challenging legal issue of Japanese Internment required them to balance the civil liberties of individuals of a minority group with the security of an entire nation at war, making it difficult to irrefutably deem their decisions as racially motivated. Faced with this dilemma, the judges behind the majority decisions in both countries justified


Emergency Circumstances and Deferential Attitudes

2011

131

their decisions based on perceived emergency circumstances, which obliged them to act with judicial deference to the elected legislatures and authorities. It is upon these two pillars of emergency circumstances and judicial deference that both the Canadian and American majority decisions justify the suspension of civil liberties, regardless of the written or unwritten bill of rights that guarantee them, resulting in the perpetuation of systemic racism. Rather than asserting the weak position that it was racist sentiments alone that resulted in the majority judges decisions, it is much more useful to understand the aspects of the law and legal principles that enabled the judges to justify their decision within the parameters of the law. Once these aspects are identified, it becomes easier to amend the legal system to protect against systemic racism and ensure due process; whereas it is near impossible to target and eliminate the individual potential judges who may possess racist sentiments. One aspect of both the Canadian and American legal systems that enabled governments to pursue systemic racist policies was the granting of sweeping powers in times of emergency such as war or insurrection. In Canada, these broad powers were granted to the executive under the War Measures Act. This act enabled the government to issue any Order subject to two specific provisions: The Governor in Council is empowered to do and authorize such acts and things, and to make such orders and regulations, provided there exists a real or apprehended war, invasion, or insurrection; and also provided that the act or thing done, or the order or regulation made, are such that the Governor in Council, by reason of real or apprehended war, deems them necessary or advisable for the security, defence, peace, order and welfare of Canada4


132

Carleton University Journal of Legal Studies

Vol. III Issue 1

By invoking the War Measures Act, the federal government was able to issue three Orders in Council that significantly infringed upon the rights of Japanese Canadians. Residents of the Canadian West coast were displaced from their homes to internment work camps, while the government took possession of their property and assets without laying any formal charges; their only crime was that they were of Japanese ancestry. This was possible under the War Measures Act because in the immediate days and weeks following Japan’s entry into the war, a deep fear of further attacks along the west coast shattered the veneer of tolerance the white community extended their Japanese neighbours, whom they suspected were still loyal to Japan.5 Now when the constitutionality of these Orders in Council came before the Supreme Court of Canada through the form of a Reference at the request of the government, the court faced a very challenging dilemma. The government clearly would have the power to take the emergency measures, in fact, there was a real or apprehended war, or invasion; yet these emergency measures conflicted with the right to due process of the Japanese Canadians. While this right was not explicitly guaranteed in the Constitution at the time, it was considered to be part of the Constitution nonetheless as Canada had inherited an unwritten bill of rights from Britain. The judges behind the majority decision maintained that the threat warranted government action, and that it had acted within the powers granted to them by emergency legislation. Writing on behalf of the majority, Chief Justice Rinfret determined that there “needed to be very clear evidence” that the crisis had wholly passed away in order to “justify the judiciary in overruling the decision of the Government that exceptional measures were requisite.”6 By taking this position, he failed to acknowledge


Emergency Circumstances and Deferential Attitudes

2011

133

the possibility that the actions taken by the government under the War Measures Act could be deemed unconstitutional. The existence of the emergency legislation, enacted by the democratically elected Government was designed to maintain the “security, defence, peace, order and welfare of Canada” in such a situation as the war against Japan, and the judges for this reason were likely hesitant to restrict the governments ability to do this. Chief Justice Rinfret argued, “...surely under the circumstances that existed during the actual hostilities with Japan or in the ensuing months, the Governor General in Council might well be justified in considering such people a menace to Canada.”7 This statement exemplifies that the Judges behind the majority decision believed the threat of Japanese attack against Canada justly outbalanced the civil liberties of Japanese Canadians. Many of these people had done nothing wrong, yet the emergency circumstances required government action. The court seemed to understand this and chose to defend the constitutionality of the government’s actions, regardless of the implications they had on civil liberties and racial minorities. In the United States, the Supreme Court similarly used the emergency circumstances of the war to justify the 6-3 majority decision to uphold the constitutionality of Executive Order 9066 in Korematsu v. the United States. There was published material, “of which the Court had notice, that indicated that the intelligence agencies possessed, on the basis of pre-war investigations, compilations of information as to suspicious members of the West Coast population of Japanese ancestry.”8 This evidence, similarly to the situation in Canada, helped propel a sense of public and government panic and urgency to deal with the situation. The Presidential Executive Order was then issued, declaring cer-


134

Carleton University Journal of Legal Studies

Vol. III Issue 1

tain regions along the western continental United States to be military zones, so that the armed forces could remove people of Japanese ancestry from their homes into internment camps. This was again justified by the emergency circumstances resulting from the war against Japan, and further supported by the fact that “approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor.”9 In contrast to the Reference given by the Supreme Court of Canada, the majority decision written by Justice Hugo Black acknowledged the fact that infringing upon the right of individuals to due process by excluding large groups of citizens from their homes was normally not permitted. He then qualified that statement with the exception that “under circumstances of direst emergency and peril… [and] when under conditions of modern warfare when our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”10 The fallacy with this argument however, is that the judges behind both the Canadian and American majority decisions equated the “threatened danger” of the war in Japan with the existence of people of Japanese ancestry residing along the western regions of Canada and the United States, even though they had committed no crime. In doing this, the judges were able to justify the use of sweeping governmental powers used against the civil liberties of a racial minority because there was an emergency situation that threatened the freedom and civil liberties of the entire nation. The emergency circumstances necessitated action that was unique to wartime in the eyes of the courts. This stance taken by the court is demonstrated best by Justice Frankfurter who concurred with Justice Black’s decision when he


2011

Emergency Circumstances and Deferential Attitudes

135

stated, “the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless.”11 While both the Canadian and American Supreme Court majority decisions outlined in considerable detail how legislative powers gave legal grounds for upholding the government’s efforts against individuals of Japanese ancestry, they could have contrastingly challenged their constitutionality just as easily for violating these people’s civil liberties. By taking a more judicially activist approach, the courts would have potentially been seen as meddlesome and disloyal to the war efforts of their respective executive and legislative branches of government. Instead, they were able to stress the necessity of the government’s actions in the emergency circumstances through judicial deference to the democratically elected legislature and executive branch. In the Supreme Court of Canada’s Reference re Persons of the Japanese Race, the court “broadly confirmed that executive orders passed under the federal emergency power possessed the legitimacy and constitutionality of any act of Parliament.”12 Since the role of the court is undoubtedly to apply the law to any case that comes before it through its decisions, the court was able to defer responsibility of the matter to the legislature, which granted the sweeping powers. The judges behind the majority decision could have applied the principles of the rule of law to defend the unwritten due process rights of Japanese Canadians. However, this approach would have required the court to challenge the legal authority of Parliament to enact emergency legislation in order to deal with the war effort, which the court believed was within its jurisdiction. Chief Justice Rinfret claimed, “under the War Measures Act the final


136

Carleton University Journal of Legal Studies

Vol. III Issue 1

responsibility for the acts of the Executive rests upon Parliament. Parliament abandons none of its powers, none of its control over the Executive, legally or constitutionally.”13 This stance shows a considerable amount of judicial deference from the court because it ignores the reality that part of the role of the judiciary branch of government is to provide checks and balances of power to the other two legislative and executive branches. However, in the context of war, it is likely that the court was hesitant to limit or interfere in Parliament’s ability to maintain the security, defence, peace, order and welfare of Canada, even at the expense of a racial minority. By approaching the Reference with judicial deference, the court deferred its responsibility to judge the affects and scope of the government’s actions, maintaining simply that Parliament alone has the power to judge the appropriateness of its actions within its jurisdiction. Chief Justice Rinfret confirms this by stating that, “Parliament has… full power to amend or repeal the War Measures Act… and if, at any time, Parliament considers that too great a power has been conferred upon the Governor General in Council, the remedy lies in its own hand.”14 This concept of judicial deference, which enabled the Supreme Court of Canada to justify upholding the government’s racially motivated discrimination, existed analogously in the United States. When the United States Supreme Court found that the emergency circumstances justified government action, they deferred to Congress and the Executive Order to take such actions, regardless of whether they violated individuals guaranteed right of due process. In his decision, Justice Black argued that, “the provisions of the Constitution which confer on Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking


2011

Emergency Circumstances and Deferential Attitudes

137

to a nation at peace.”15 This position shows a high degree of deference in the sense that the court is unwilling to challenge that the specific actions taken by the government, under its constitutionally granted powers, are indeed unconstitutional. Instead, Justice Black argued that the court essentially did not have the authority to command the military in its actions within the specified military zones. He claimed that “the military authorities, charged with the primary responsibility of defending our shores, …ordered exclusion… in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.”16 The court was also reluctant to challenge the wartime intelligence of the military, which had deemed the Japanese American residents along the west coast as a threat to national security. By responding so deferentially to the military’s newly expanded authority, the court failed to assume its duty to protect the constitutional principles of justice and the rule of law. Justice Black affirmed that, “we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, who’s number and strength could not be precisely and quickly ascertained.”17 While one can blame the military authorities for acting brashly by targeting a racial minority in its entirety when merely a fraction of the individuals within that group posed a potential threat, one can equally blame the Supreme Court for taking such a deferential approach to the case. The Justices of the Supreme Court were legal experts who could have justified their positions to strike down the government’s actions as unconstitutional just as easily as they upheld them, and with the same level of legal justification. However, “the Supreme Court did not meaningfully police the government’s policies toward Japanese Americans


Carleton University Journal of Legal Studies

138

Vol. III Issue 1

and effectively abdicated judicial review once the government invoked military necessity as justification for its actions.18” In doing so, both the Canadian and American Supreme courts abdicated their duty to defend citizens of minority status from the tyranny of the majority, allowing racist policies to tear apart the lives of Japanese Canadians and Americans, leaving a stain upon their nations’ histories. Interestingly, the decision of Korematsu and the Reference Re Persons of the Japanese Race were not completely devoid of arguments defending the Japanese Canadians and Americans against the racial discrimination of their governments. There were judges in both cases who wrote dissenting opinions, which stated their belief that the government’s actions were, indeed, unconstitutional. Justice Ivan Rand of the Supreme Court of Canada dissented, recognizing that naturalized and natural-born Japanese Canadians possessed ‘citizenship rights,’ and that such rights could not be bounded by race. His dissent encouraged Canadians to consider the deportation not “simply as the deportation of Japanese people, but deportation of a people on the basis of race, arguing that citizenship entailed the promise of equality before the law”.19 Perhaps the most vehement dissenting opinion among the Justices in the Korematsu case was Justice Jackson, who explicitly described the government’s actions as racist, maintaining that Korematsu’s crime “consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.”20 In total, two of the seven Justices of the Supreme Court of Canada and three of the nine Justices of the United States Supreme Court dissented from the majority decisions, deeming their government’s actions against those people of Japanese ancestry during the war to be


2011

Emergency Circumstances and Deferential Attitudes

139

unconstitutional. For these judges, targeting an entire group of people and depriving them of their rights to due process merely on the basis of race was not just categorically unconstitutional, but blatantly racist. As Justice Murphy of the U.S. Supreme Court described it, such exclusion goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism.”21 Unfortunately, these judges formed the minority dissenting opinions of their courts, and their warnings against systemic racial discrimination haunt the memories of those in the legal profession to this day. Their principled opposition to their government’s use of sweeping powers during wartime were not enough to convince the deferential judges who formed the majority decisions nor to ensure justice and protect the civil liberties of thousands of Japanese Canadians and Americans. Yet there still remains significant value in their dissent as well as in the majority decisions for those who seek to prevent such systemic discrimination of minority groups in the future. It is easy to claim that the judges behind the majority decisions of Korematsu v. the United States and the Reference re Validity of Orders in Council in Relation to Persons of the Japanese Race held racist sentiments that influenced their decisions. However such a claim is inherently worthless, as is offers no substantial cautions or instruments that can be used to prevent such discrimination from reoccurring. It also requires a considerable amount of assumption and speculation, as none of the judges behind the majority decisions justified the constitutionality of their government’s actions on any basis of race. Rather, these judges managed to interpret the nature of the emergency circumstances at hand to adopt judicial deference towards their legislative branches of government, which had interned thousands of individuals on the basis of race. It is therefore much


140

Carleton University Journal of Legal Studies

Vol. III Issue 1

more beneficial to examine the aspects of the legal system that the judges relied on to justify the systemic racism of their governments. The judges behind the majority decisions in both Korematsu and the Reference Re Persons of the Japanese Race emphasized that the existence of emergency legislation, which granted sweeping powers to their governments, gave the authority to take action, even if such action infringed upon civil liberties during wartime. They further argued that the legislative branch possessed the sole authority to regulate these actions taken under such emergency legislation, deferring their responsibility to uphold the Constitution to their legislatures. Since both the Korematsu case and Reference Re Persons of the Japanese Race, there have been steps taken by the Canadian and American legislatures and judiciary in response to public outcry to ensure that such a gross violation of civil liberties does not occur again. In Canada, critics reasoned that if the deportation and internment of thousands of Japanese Canadians was a product of constitutional law, then Canadian constitutional law needed to change.22 Judiciaries have since taken a much more â&#x20AC;&#x153;judicially activistâ&#x20AC;? approach to cases involving civil liberties, especially in Canada since the entrenchment of the Charter of Rights and Freedoms. By examining the majority decisions in both cases, the gaps that existed during the war within the legal systems of Canada and the United States become distinctly clear. Only once these faults in the legal framework of society are remedied will the constitutionally guaranteed principles of the rule of law be truly safeguarded.


2011

Emergency Circumstances and Deferential Attitudes

141

Endnotes 1

Eric M. Adams, The Idea of Constitutional Rights and the Transformation of Canadian Constitutional Law, 1930-1960. Thesis. University of Toronto. Toronto: Graduate Department of Law, 2009. 145

2

L. Thiesmeyer, “The Discourse of Official Violence: Anti-Japanese North American Discourse and the American Internment Camps.” Discourse & Society 6.3 (1995): 322.

3

Hogg, Peter W., and Cara F. Zwibel. “The Rule of Law in the Supreme Court of Canada.” University of Toronto Law Journal 55 (2005): 719.

4

Reference re Validity of Orders in Council in Relation to Persons of the Japanese Race, [1946] S.C.R. 248 at 11

5

Patricia E. Roy, The Triumph of Citizenship: The Japanese and Chinese in Canada, 1941-67 (Vancouver: UBC Press, 2007) at 173.

6

Reference re Persons of the Japanese Race [1946] S.C.R. 248 at 15

7

Ibid. at 23.

8

Nanette Dembitz, “Racial Discrimination and the Military Judgment: The Supreme Court’s Korematsu and Endo Decisions.” Columbia Law Review 45 (1945): 191.

9

Korematsu v. United States, 323 U.S. 214 (1944) at 3

10

Ibid. at 3-4.

11

Ibid. at 6.

12

Adams Supra note 1 at 148.

13

Reference re Persons of the Japanese Race [1946] S.C.R. 248 at 11

14

Ibid. at 14.

15

Korematsu v. United States, 323 U.S. 214 (1944) at 2

16

Ibid. at 2.

17

Ibid. at 3

18

Jonathan M. Justl, “Disastrously Misunderstood: Judicial Deference in the Japanese-American Cases.” Yale Law Journal 119 (2009): 286.

19

Adams Supra note 1 at 150-151.


142

Carleton University Journal of Legal Studies

Vol. III Issue 1

20 John Q. Barrett, “A Commander’s Power, a Civilian’s Reason: Justice Jackson’s Korematsu Dissent.” Law and Contemporary Problems 68 (2005): 79. 21

Korematsu v. United States, 323 U.S. 214 (1944) at 12

22

Adams Supra note 1 at 146.


2011

Emergency Circumstances and Deferential Attitudes

143


Carleton University Journal of Legal Studies

144

Vol. III Issue 1

The Duty to Consult Kaisha Thompson The relationship between Aboriginal peoples and the Government of Canada has been historically litigious and complex. The legal doctrine of the duty to consult Aboriginal peoples epitomizes this concept. The complexity of this relationship has been shaped through litigation, and can be followed from the Royal Proclamation of 1763 through to the current commentary surrounding the duty to consult. This paper will explain the doctrine of the duty to consult, when it is triggered, the degree of its impact, and how both parties can fulfill their obligations within it. In discussing the legal cases that have shaped the duty to consult it will become obvious how it has fundamentally changed the law of Aboriginal rights, why this change was necessary, and how it strikes a correct balance between the competing interests of both parties.

W

hile new, the doctrine is quite elaborate and has revolutionized the law on Aboriginal rights. In fact, within recent months two new Supreme Court cases decisions have trans-

formed the law on constitutionally protected Aboriginal rights yet again. For the purpose of this paper, the term â&#x20AC;&#x2DC;Aboriginalâ&#x20AC;&#x2122; will be used to address the indigenous peoples living in Canada. The constitutionâ&#x20AC;&#x2122;s legal definition of


2011

The Duty to Consult

145

“Aboriginal peoples of Canada” includes the Indian, Métis and Inuit peoples.1 However, the term ‘Aboriginal’ is often interchangeable with ‘Indian’, ‘Indigenous’, and ‘First Nations’, among other terms. Aboriginal rights are derived from the concept of Aboriginal title which remains unextinguished despite the presence of Europeans and the effects of colonialism. The rights of Aboriginal peoples in Canada are outlined in section 35.1 of the Constitution Act, 1982 as: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”2 The duty to consult arises “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”3 However, in order to fully understand the impact of duty to consult it is important to comprehend when it is initiated. The duty to consult is triggered by three factors that must be present in the initial assessment.4 Firstly, there must be a proposed Crown project/activity. Secondly, there must be an established or potential section 35 right held by an Aboriginal group in the area. These rights are subject to an assessment which determines the strength of their claim. Thirdly, the proposed Crown project/activity, or implementation options, must have the potential to adversely impact the section 35 rights. If all three factors are present there is an obligation to consult, however the extent of consultation and the seriousness of the adverse impact will vary depending on circumstances.5 1 Constitution Act 1982, section 35 (1) 2 Constitution Act 1982, section 35 (1) 3 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at para 35 4 Government of Canada. Aboriginal Consultation and Accommodation. Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult. February 2008. Pg. 42 5 Ibid at pg.45


Carleton University Journal of Legal Studies

146

Vol. III Issue 1

Both the seriousness of adverse impact and the extent of consultation can be determined through the use of a sliding scale.6 The scale was created by the Government of Canada to aid all parties, both governmental and Aboriginal, in determining the potential severity of adverse impacts on the section 35 rights.7 These factors, impact and consultation, vary depending on the strength of the claim to section 35 rights and its connection to the proposed activity or project. The more established the claim, the more consultation is necessary and a potential to accommodate exists. Similarly, if the seriousness of the adverse impact is high, there is an increased need to consult with the Aboriginal peoples and in some cases accommodate them. Consultation is regarded as anything from a letter of adequate notice or the disclosure of relevant information, if there is a weak claim or no serious impact, to the consideration of changing the proposed government action, in the most extreme cases. The goal of the scale is to ensure that there has been adequate accommodation by the Crown, or a Crown related third party, to Aboriginal peoples in each circumstance. The duty to consult has fundamentally changed the law on Aboriginal rights. This is obvious in the establishment of an agenda, legal expectations, and circumstantial standards for the otherwise unclear and complex process of land transfers and/or rights infringement. The duty to consult has been the subject of many judicial cases, and has therefore been shaped by the Canadian legal system. Until recently, academics were in agreement that there was a trilogy of Supreme Court cases that had shaped the duty to consult: The Haida Nation case, Taku River Tlingit First Nation case, and the Mikisew Cree First 6 Ibid 7 Ibid


2011

The Duty to Consult

147

Nation case.8 However, these three are no longer the only prominent duty to consult cases. Since the Supreme Court decisions of Carrier Sekani and Little Salmon/Carmacks were decided, on October 28th, 2010 and November 19th, 2010 respectively, the discussion surrounding the duty to consult has changed again. All five Supreme Court cases have played a major role in the framing of the duty to consult, and its principles, which have changed the relationship between the government of Canada and Aboriginal peoples. The Crown’s duty to consult has four major sources: the Crown’s sui generis fiduciary duty to Aboriginal peoples, the right given to all Canadian to be treated by the Crown in a way that is procedurally fair and reasonable, the infringement analysis test, and honour of the Crown which is the most important. Honour of the Crown is rooted in the Royal Proclamation of 1763 and its attestation that: “The several Nations or Tribes of Indians with whom we are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories…”9 Its deep historical roots are responsible for the Crown’s responsibility to approach treaties and rights claims in a “generous and liberal” approach that is “in favour of aboriginal peoples.”10 The principle of honour of the Crown is the common thread between all duties to consult cases. This is evident in the Beckman v. Little Salmon/Carmacks First Nation case and its statement that: “The short-, medium-, and long-term objectives of the constitutional duty to consult Aboriginal peoples are all rooted in the same fundamental principle with respect 8 Newman, Dwight. The Duty to Consult: New Relationships with Aboriginal Peoples. Saskatoon: Purich, 2009. 9 The Royal Proclamation, 1763 10 R. v. Sparrow, [1990] 1 S.C.R. 1075, in preamble.


148

Carleton University Journal of Legal Studies

Vol. III Issue 1

to the rights of Aboriginal peoples, namely the honour of the Crown, which is always at stake in relations between the Crown and Aboriginal peoples.”11 Little Salmon/Carmacks reiterates the importance of recognizing the Crown’s obligation to consult as a constitutional duty. This notion, while basic, is at the heart of all discussions surrounding the duty to consult and must be established before more thorough examination. Haida Nation v. British Columbia (Minister of Forests) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), were the first of the Supreme Court case series that contributed to the transformation of Aboriginal rights in Canadian law; they were companion cases, decided on November 18th, 2004, that had very similar verdicts. Haida determined that: “The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.”12 While Taku River designated that: “The Crown’s duty to consult and accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title, is grounded in the principle of the honour of the Crown...”13 Both are significant because they established the notion that the government of Canada must be cognizant and considerate of Aboriginal interests that were being “seriously pursued”, which would include both an established and a “prior to proof ” section 35 right. This meant Aboriginal peoples only needed to prove they had a credible claim to section 35 rights in order to trigger the duty to consult. This concept 11 Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 104 12 Haida Nation, Supra 4 at para 27 13 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, preamble


2011

The Duty to Consult

149

of including a potential right fundamentally changed the law on Aboriginal rights and adjusted the trigger of the Crown’s duty to consult. Haida and Taku River revolutionized Aboriginal rights by changing the existing dialogue structure between the government of Canada and Aboriginal peoples. This transformation was especially important in regards to the rights claims, land development debates and environmental concerns of Aboriginal peoples. Haida and Taku River established the need for the Crown to begin taking a prospective approach towards resolving rights-based disputes. This was contrary to the existing approach that was established by R. v. Sparrow [1990] which was retrospective, and focused on infringed rights. While Sparrow focused on the damage done, Haida and Taku River ensured that any authentic rights, that would be impacted or could be infringed, would trigger the duty to consult and prevent any potential damage. The recognized rights of Aboriginal peoples to claim a section 35 right without proof meant that they could have a role in the decision making process, especially if their claim was severe enough to initiate the government’s responsibility to accommodate their interests. This inclusion of Aboriginal peoples in the discussion regarding future developments was both necessary and monumental. The difference between the approach that sought reconciliation with Aboriginal peoples to one that accommodates them, demonstrates the fundamental transformation the duty to consult was having on Aboriginal rights. While this concept was established by Haida and Taku River, it was exemplified in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage). Mikisew Cree highlighted that: “The government’s approach did not advance


150

Carleton University Journal of Legal Studies

Vol. III Issue 1

the process of reconciliation but undermined it.”14 The land in question was negotiated through Treaty 8, a historical treaty signed in 1899, which allowed for the “taking up” of land by the Crown for specific purposes. However, while the Crown had the right to take up surrendered lands, as outlined in the treaty, it also had an obligation to educate itself on the potential impact its activity would have on the Mikisew peoples and their traditional rights to hunting, trapping and fishing and to fulfill its duty to consult the Mikisew on their findings.15 The inclusion of historical treaties to the duty to consult that arises in this case demonstrates the further development of the duty to consult. The focus of Mikisew Cree on treaty making and reconciliation highlights the Crown’s shift to a prospective approach in dealing with Aboriginal peoples.16 This need for reconciliation is the foundation of the balance between the Crown’s obligation to consult and their ability to move forward on activities or projects that could adversely impact Aboriginal peoples’ rights and interests. The duty to consult is the most significant development in the law of Aboriginal rights since R. v. Calder, in 1973. However, in order to be fully effective the duty to consult needed to shift from a court based resolution to an established solution rooted in government policy. This was a necessary development and is found in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council which presented the pre-existing court-based remedy as “time-consuming, expensive and often ineffective.”17 The need to shift away from a lengthy and 14 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),  2005 SCC 69, [2005] 3 S.C.R. 388, para 4 15 Mikisew Cree First Nation Supra 14 at para 55 16 Ibid at para 54 17 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para 33


The Duty to Consult

2011

151

expensive court-based remedy was felt increasingly by the Aboriginal peoples who were already marginalized by the colonial process of litigation to protect their interests which were being adversely impacted by government activity. This can be exaggerated by the idea that without the duty to consult the resources that the Aboriginal peoples are trying to protect could be depleted or exploited before a decision is made in court. Carrier Sekani put forward the observation that the current system was â&#x20AC;&#x153;often ineffectiveâ&#x20AC;? has led to the recommendation that Aboriginal peoples be included in the day-to-day actions of the government when there is a potential project in which their interests might be impacted. This development is not only financially necessary but proves to be time effective, benefitting both parties. The duty to consult was developed to address the need for a fair and objective process in dealing with the conflicts of the Crown and Aboriginal peoplesâ&#x20AC;&#x2122; interests. This is obvious in the initial assessment of the duty to consult and the need for all three factors to be present. The trigger system ensures that the Aboriginal peoples cannot simply block any government project and/ or activity without a credible claim to section 35 rights and the Crown cannot disregard the interests of Aboriginal peoples who are impacted by their future developments. The consultation, and occasional accommodation, of Aboriginal peoples in circumstances where their rights may be adversely impacted allows for them to have a voice. This does not mean the Aboriginal peoples have a veto on government projects. The duty to consult strives to balance the interests of both parties in a fair and effective way and it ensures that both parties are able to negotiate their interests in a way that is timely and fiducially responsible.


152

Carleton University Journal of Legal Studies

Vol. III Issue 1

The doctrine of the duty to consult strives to provide a balance between the interests of the government of Canada, and its third party companies, and the interests of Aboriginal peoples. The ability of a breach of constitutional duty to be in the Crown’s interest is questioned in Carrier Sekani, “How can a contract formed by a Crown agent in breach of a constitutional duty be in the public interest?”18 However, this question can easily be answered through the observation of the cultural differences between the two parties. Aboriginal peoples view land as something that is borrowed; they share it with the generations that came before them, and with the generations that will come after them. Whereas the Canadian view of land is that it can be owned and exploited by the highest paying bidder and there is no limit to the possibilities of development and depletion of resources. The differences in cultural, and spiritual belief, between the Crown and Aboriginal peoples is what divides their interests and often prevents them from working cooperatively on development projects. The Aboriginal peoples have a traditional spiritual connection to the land and its resources that mimics the Christian connection to a spiritual higher power like God. It is this difference in approaches that allows there to be a conflict between the Crown’s interest and its constitutional duty. However, the duty to consult attempts to resolve this conflict and allow both parties to have equal opportunity in the mapping out of Canada’s future development. While the relationship between the Crown and Aboriginal peoples has been historically antagonistic, the advent of the doctrine of the duty to consult has allowed for both parties to work cooperatively in planning for the future. The duty to consult was a necessary development in the law because it demon18 Carrier Sekani Supra 17 at para 21


2011

The Duty to Consult

153

strates the need for an evolving relationship between the Crown and Aboriginal peoples. The transition from a retrospective approach, that had remedial applications, to that of a prospective approach, which allowed for accommodation and participation of Aboriginal peoples, demonstrates the adjustment of the role of the honour of the Crown to fit into the current Canadian context. This is only furthered by the recommendation that Aboriginal peoples be included in discussions regarding activities that have a projected impact on their section 35 rights, established or potential. It is important that both the Crown and Aboriginal peoples have equal roles in their growing relationship. The duty to consult establishes guidelines and goals for both parties in a way that allows for a balance of interests. Despite its relatively new existence, the duty to consult has fundamentally changed the law of Aboriginal rights and the future of the Crownâ&#x20AC;&#x2122;s relationship with Aboriginal peoples to the betterment of all Canadians.


154

Carleton University Journal of Legal Studies

Vol. III Issue 1

Bibliography Primary Sources Statutes and Legislation Constitution Act 1982 Royal Proclamation of 1763. n.d.

Cases Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 CC 74, [2004] 3 S.C.R. 550, R. v. Sparrow, [1990] 1 S.C.R. 1075 Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43

Secondary Sources Books and Journal Articles Cheryl Sharvit, Michael Robinson, and Monique M Ross. Resource Developments on Traditional Lands: The Duty to Consult. Calgary: University of Alberta, 1999. Goldenberg, Andre. “Salmon for Peanut Butter: Equality, Reconciliation and the Rejection of Commercial Aboriginal Rights.” Indigenous Law Journal (2004): 62-95. Government of Canada. Aboriginal Consultation and Accommodation. Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult. February 2008.


2011

The Duty to Consult

155

Hawkes, Dabid. Aboriginal Peoples and Government Responsibility . Ottawa: Carleton University Press, 1991. Heather L Treacy, Tara L Campbell, and Jamie Dickson. “The Current State of the Law in Canadian on Crown Obligations to Consult and Accommodate Aboriginal Interests in Resource Development.” Alberta Law Review (March 2007): 571-618. Kennedy, Priscilla. “The Duty to Consult: Constitutional Recognition of Treaty and Aboriginal Rights.” LAWNOW (2008). Macklem, Patrick. The Crown’s Duty to Consult: The Current Legal Landscape. Toronto: Canadian Bar Association - Ontario, 1999. McNeil, Kent. “How Can Infringements of the Constitutional Rights of Aboriginal Peoples Be Justified?” Constitutional Forum (1997): 33-39. Minister of Justice. What the Constitution says about Aboriginal Peoples. Ottawa: Government of Canada, 1985. Newman, Dwight. The Duty to Consult: New Relationships with Aboriginal Peoples. Saskatoon: Purich, 2009. Potes, Veronica. “ The Duty to Accommodate Aboriginal Peoples Rights: Substantive Consultation?” Journal of environmental law and practice (October 2006): 27-45. Ryder, Bruce. “Aboriginal Rights and Delgamuukw v. the Queen.” Constitutional Forum (1994): 43-48. Sonia Lawrence, and Patrick Macklem. “From Consultation to Reconciliation: Aboriginal Rights and the Crown’s Duty to Consult.” The Canadian Bar Review (2000): 252-279. Swankey, Ben. Native Land Claims. Toronto: Communist Party of Canada, 1980. Thomas Isaac, and Athony Knox. “The Crown’s Duty to Consult Aboriginal People.” Alberta Law Review (July 2003): 49-77. Thomas Isaac, Tony Knox, and Sarah Bird. “The Crown’s Duty to Consult and Accommodate Aboriginal Peoples: The Supreme Court of Canada Decision in Haida.” The Advocate (September 2005): 671-689.


Vol. 3 Issue 1