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March/April 2012

Welcome to LawNow – Online!

Relating law to life in Canada

Where There's a Will, There's a Way

Oh! I have slipped the surly bonds of Earth . . .

—John Gillespie Magee Jr.


Contents

March/April 2012

23 Please Trust me….in Your Will Doris Bonora Testamentary trusts can be used for lots of purposes to help families meet their unique circumstances.

26 Unjust Enrichment: Fair is Fair! Judith Milliken, QC and Trevor Todd Unjust enrichment is a creation of the Law of Equity that is sometimes used in estate cases to prevent unfairness.

Oh! I have slipped the surly bonds of Earth . . . Writing your will and planning your estate don’t necessarily have to be gloomy affairs. It can be life-affirming to plan ahead for those you love.

Special Report: Freedom of Conscience 32 Freedom of Conscience: What it means for Canadians

Cover image: © Eyewire

Linda McKay-Panos

Feature: Wills and Estates

Freedom of Conscience is a protected right under Canada’s Charter of Rights and Freedoms, but it has been discussed infrequently by Canada’s courts.

9 The Top Ten Things You Need to Know about the Wills and Succession Act Sherrilynn Kelly Alberta has a new Act that makes lots of changes in the laws about Wills and Estates.

14 Wills and Succession Law Amends Family Law Kelly Wright The new Alberta Wills and Succession Act makes many significant changes to Family Law in the province.

19 Wills and Estates Can Be Treacherous Territory for Aboriginals

38 PEN Canada: On Guard for Freedom of Expression Robert Normey Freedom of expression often encompasses matters of freedom of conscience. PEN Canada stands up for both.

Departments 4 Viewpoint 7 Bench Press 42 Columns

John Edmond Drafting wills and administering estates can be subject to completely different rules for Aboriginal people than for other Canadians.

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About LawNow

March/April 2012

The contents of this publication are intended as general legal information only and should not form the basis for legal advice of any kind. Opinions and views expressed are those of the writers and do not necessarily reflect the opinion of the Legal Resource Centre of Alberta Ltd. and/or the Centre For Public Legal Education Alberta. Permission to reproduce material from LawNow may be granted on request.

LawNow (ISSN 0841-2626) is published six times per year.

Publisher Diane Rhyason

www.lawnow.org

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Editor/Legal Writer Teresa Mitchell Production Assistant Kristy Rhyason Layout, design and production some production!

Cover, quote from "High Flight", written by John Gillespie Magee Jr. in 1941, just a few months before his death in a mid-air collision while a fighter pilot during WWII.

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Viewpoint

A Cautionary Tale

March/April 2012

Carole Aippersbach

Once upon a time there was a family who went on a summer holiday. A father, a mother, two children, a dog, and some grandparents. It wasn’t a fancy holiday – those are pretty expensive. It was just a nice little family vacation: everyone and everything packed into the minivan, driving to the next province over, just getting away to spend some time together. But they forgot one thing: the back-up plan. Most of us have all kinds of back-up plans, covering many of the little things in our lives. Think about it: how many times have you found yourself saying “well, if that doesn’t work, I’ll just do this instead.” However, despite the existence of all of those minor back-up plans, many of us fail to create the “big” back-up plan – the legal documents that plan for death and possible incapacity. Let’s face it, no one wants to think about what happens if the thing that does not work out is your entire life. Who likes to think about death, or, worse yet, the possibility of being completely incapacitated for the rest of your natural life? Besides, what are the odds of something that horrible actually happening – especially if you are young and healthy? Right? That is what the family thought, too. Or, better said, they just simply didn’t think they’d ever need such a back-up plan… not until they were older and closer to death. They were wrong. Despite all of the odds, on a clear and sunny July day, on a mostly deserted bit of highway, and for reasons that will never be known, the driver lost control of the vehicle. The result: a severely injured father, a severely injured child, a mother in what was, and still is, a permanent vegetative state, a dead dog, an insurance nightmare …. and an ugly, expensive three-year legal battle that left the whole family with irreparable scars. Not to mention a man who had to make a literally life-or-death decision, both on the day of the accident and every day since, for a wife whose wishes were not known to him. Although it is true that no back-up in the world could have prevented the accident, or even some of the events after the accident, there are many things that could have ended up differently, had there been some legal Let’s face it, no one wants to think documentation in place. For example, the fight over who got to about what happens if the thing make decisions for the wife/mother. that does not work out is your • Many people think that, in this kind of tragedy, a person’s spouse automatically has decision-making authority. That entire life. Who likes to think about is not the case. Health care professionals can sometimes death, or, worse yet, the possibility turn to the spouse, but if the correct documentation is of being completely incapacitated not place, the spouse does not have legal authority. This for the rest of your natural life? can be problem when someone else decides that

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Department: Viewpoint

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s/he wants that legal decision-making authority. This kind of situation need not be born of malice – it can arise from the best of intentions. In essence, that is what happened with this family: one husband and one parent, each of whom deeply loved and truly believed that they wanted what was best for the patient. Regardless of the underlying intentions, the family is left with a battle, at the worst possible time. • Many people also believe, that in such a difficult time, the family will rally together and everyone will get along, even those who might not have before. That, too, is a myth. In fact, quite to the contrary, at such times differences of opinion can become even more pronounced. That happened here, too, and, as a result, emotions ran even higher, and more and different battles ensued. Before long, even the custody of the children was at issue. So what are the legal documents that can help in this kind of situation? There are three: a Will, a Personal Directive and a Power of Attorney. In this issue of LawNow, you will learn much about Wills, but, sometimes, the other two documents can be just as, if not more, important. • A Personal Directive is a written, signed, dated and witnessed document that allows you to determine in advance who will make personal (non-financial) decisions on your behalf if, due to illness or injury, you ever lose the mental ability to make these decisions for yourself. This can include … a Personal Directive would decisions related to health care, housing and treatment. In some provinces, such a document is known as a have outlined how the wife/ “Living Will”. In Ontario, it is known as a Power of mother felt about being kept Attorney for Personal Care. alive by machines when in a • A Power of Attorney is a written, signed, dated and permanent vegetative state. This witnessed document that gives someone else the right, would have given the family peace while you are still alive, to act on your behalf with respect to your financial affairs, including debts. This can include of mind in terms of knowing for paying bills, depositing and investing money on your certain whether or not the wife/ behalf, and even selling your house. A Power of Attorney mother wanted to be kept alive by can only deal with financial matters. machines. • A Will is a document that states how you want your possessions and property distributed upon your death. In this document, you also determine who will have the responsibility of completing this job (your “Executor”). In this particular case, these documents could have done the following: • both a Personal Directive and a Power of Attorney, signed by the wife/mother, would have dictated who had the right to make her personal and financial decisions. This would have meant that the chosen person could have started making decisions immediately (thereby possibly altering some of the care that, although it saved her life, left her in a permanent vegetative state) and it would have prevented the court battle for who had the initial

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right to make these decisions (and possibly all the others that ensued, not to mention the emotional damage they caused); • a Personal Directive would have outlined how the wife/mother felt about being kept alive by machines when in a permanent vegetative state. This would have given the family peace of mind in terms of knowing for certain whether or not the wife/mother wanted to be kept alive by machines. If she did not, it would have changed every day since that accident, or at least, given the family peace of mind knowing that being kept alive was what she really wanted; • the existence of a Personal Directive and a Power of Attorney would have saved the family the over $5,000 it took to get an initial decision-maker appointed by the court – a great deal of money, required at a time when the family could least afford it; • although the wife/mother has not died, when she does, she will not have a Will. This means that the default legislation in place at the time of her death will dictate how her assets are to be distributed. This will occur regardless of what she would have wanted had she made a Will, and regardless of what would be best for the surviving family at that time. Upon hearing this story, many people ask if it is true. It is. This is a real family, and this is what really happened. In fact, the father/husband has given both his permission and his encouragement for the story to be included in this article. The advice he wishes to pass on: don’t play the odds – have the back-up plan.

Carole Aippersbach is a lawyer with the Centre for Public Legal Education Alberta in Edmonton.

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Bench Press

March/April 2012

Teresa Mitchell 1. Oops, a Slip of the Lip! An Ontario man will get a “do-over” of his criminal trial after the trial judge made a small but crucial error of speech. Madame Justice Faye McWatt of the Ontario Superior Court of Justice was instructing a jury about the importance of the presumption of innocence just before they left the courtroom to consider their verdict. She said “It is only defeated if, and when, the Crown counsel has satisfied you beyond a reasonable doubt that Mr. Guilty – I’m sorry, Mr. Wilson – is guilty of the crime charged.” Mr. Wilson’s counsel was not amused when the jury found her client guilty. She filed an appeal, and noted “The trial judge erred in failing to order a mistrial or provide a curative instruction after mistakenly referring to the appellant as Mr. Guilty.” The appeal will be held later this year.

2. Drunk Driving and the Constitution Justice Jon Sigurdson of the British Columbia Supreme Court has ruled that parts of B.C.’s new drunk driving law are unconstitutional. He took issue with drivers who “fail” a breathalyzer test by showing a blood-alcohol level of .08 or higher. He wrote that the law “authorizes a search by a screening device on the basis of reasonable suspicion and imposes lengthy prohibitions and significant costs and penalties on motorists, without providing motorists with any meaningful basis to challenge the validity of the search results.” He ruled that this violates the Charter protection against unreasonable search and seizure. This decision has significance beyond the B.C. border. Alberta has enacted very similar legislation and intends to proceed with its implementation despite the B.C. court ruling. Sivia v. British Columbia (Superintendent of Motor Vehicles) 2011 BCSC 1639 (CanLII) www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc1639/2011bcsc1639.html

3. Tough Words from the Bench Roman Kaziuk has 69 fraud convictions and has victimized and bankrupted his own 88-yearold mother. He defrauded her out of her million dollar nest egg and she now lives in a Salvation Army shelter. In the shelter, her clothes are frequently stolen, she cannot get appropriate meals for her diabetes, and a police officer personally bought her replacement batteries for her hearing aid so she could hear them. Mr. Kaziuk even defrauded one of his own lawyers, who lent him $20,000 when he was convinced that Mr. Kaziuk’s mother had died suddenly and he needed the money to bury her. At his sentencing, Ontario Court Judge Lesley Baldwin said: Not even the notorious Bernie Madoff was guilty of destroying his own mother, as Mr. Kaziuk has repeatedly done….Mr. Kaziuk would rip off the wings of all the angels in heaven and sell them to the devil for his own gain if he could”. The judge sentenced him to ten years, one of the longest sentences ever for the offence of theft over $5000, and almost triple what the Crown had requested. R. v. Kaziuk, 2012 ONCJ 34 (CanLII) www.canlii.org/en/on/oncj/doc/2012/2012oncj34/2012oncj34.html

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4. Does the Internet Broadcast? The Supreme Court of Canada recently considered the question: "Do retail Internet service providers (“ISPs”) carry on, in whole or in part, ‘broadcasting undertakings’ subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to ‘broadcasting’ requested by end-users?” The battle was between communications companies such as Bell, Shaw and Telus on the one hand, and organizations representing Canadian artists, writers, directors and actors on the other. If the ISPs were found to be broadcasters, then they could be liable for paying fees and levies to artists for their material and subject to Canadian content rules. However, in a unanimous judgment, the Court sided with the communications companies and ruled that they merely provide a mode of transmission. The Court noted that the ISPs take no part in the selection, origination, or packaging of programming, and have no role to play in the stated policy objectives of the Broadcasting Act such as the cultural enrichment of Canada, the promotion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse. The Court wrote “An ISP does not engage with these policy objectives when it is merely providing the mode of transmission. ISPs provide Internet access to end-users”. Reference re Broadcasting Act, 2010 SCC 4 http://scc.lexum.org/en/2012/2012scc4/2012scc4.html

5. Canada Should Bring Them Home Two Canadians imprisoned in the United States asked the federal government to allow them to serve out the balance of their sentences in Canada under the International Transfer of Prisoners Act. Both men were convicted on non-violent drug trafficking offences and the Correctional Service of Canada stated that neither man posed a threat to Canadian security and were unlikely to offend. Both had social and family ties in Canada that would help in their rehabilitation and reintegration. If the men were not transferred back to Canada, then at the end of their incarceration they would be deported to Canada with no requirement for supervision or control. Public Safety Minister Vic Toews refused their requests, alluding to evidence linking one man to organized crime, and the other to possible accomplices. Justice James O’Reilly of the Federal Court ruled that the Minister acted unreasonably in refusing the men’s applications and found that there was no evidence to support his reasons for refusing the transfers. Justice O’Reilly stated that the law requires him to intervene “where the decision does not include a conclusion that would justify a denial. A decision should be quashed when it is based on information to which the applicant had no opportunity to respond. Both grounds apply here.” However, nothing may change. The judge ordered the cases to go back to Minister Toews for re-consideration. And, under the new crime omnibus bill, the Minister is given expanded powers to deny transfer requests in the future. Villano v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1434 www.canlii.org/en/ca/fct/doc/2011/2011fc1434/2011fc1434.html Tangorra v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1433 www.canlii.org/en/ca/fct/doc/2011/2011fc1433/2011fc1433.html

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The Top 10 Things s g n i h t 0 1 Top

You need to know about the Wills and Succession Act*

Sherrilynn J. Kelly 1. Everything you know or thought you knew about wills and the like is probably no longer correct. The law with respect to the disposition of your property on your death was inherited from England hundreds of years ago; and it has been many decades since this area of the law has been reformed. On February 1, 2012, Alberta ushered in the Wills and Succession Act that, in short, consolidates five pieces of relevant legislation into one, four of which were substantially changed. Estate planning, while often ignored, is also frequently misunderstood. The disposition of your property on your death is your last act – one you can plan for or let chance determine. As such, there is no better time than now to familiarize you with this new legislation.

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2. Marriage will NO longer revoke a will.

March/April 2012

Estate planning, while often ignored, is also frequently misunderstood. The disposition of your property on your death is your last act – one you can plan for or let chance determine.

Marriage will no longer revoke a will after February 1, 2012 and this provision applies regardless of when the will was made. It was long thought that when a person marries any existing will should be revoked as a consequence, since the newly married person would now want his estate to go to his new spouse and the family they would have together. But with the advent of divorce; single parenthood; people living together instead of getting married; second marriages; “starter” marriages; adult interdependent partnerships and all the other changes in society in the last fifty years at least, this long-known truism is no longer true. So long as the effect of marriage was to revoke a will, and the person marrying did not make a new will, her estate fell to be distributed on intestacy or by a statutory scheme of distribution that favoured those who were thought to be the nearest and dearest to the deceased. To the extent those who were near and dear to the deceased were the surviving spouse and their children, the scheme worked but not the way most people thought. The surviving spouse did not inherit the entirety of the deceased’s estate but shared it with the deceased’s, not necessarily their, children. A surviving spouse under the new Act will not be left bereft if his deceased spouse did not get around to updating her will; dependant relief legislation allows the surviving spouse to make a claim on the deceased spouse’s estate. Public policy, even though it creates one of the few restrictions on testamentary freedom that exists, is that a person is obliged to look out for their dependants after they die – spouses have always been one category of dependants. It is thought today that a surviving spouse’s dependant relief rights will adequately protect them if their spouse died with a valid will that did not include the surviving spouse.

3. Divorce and two years living separate and apart WILL effectively revoke gifts to former spouses and their appointments as executors and trustees. Many people, and not unreasonably, have always thought that divorce, as opposed to marriage, revoked an existing will. Intuitively this makes sense, but it was not the law until February 1, 2012 and it only applies to divorces occurring after the Wills and Succession Act came into effect regardless of when a will was made. Gifts to spouses or their appointments as executors or trustees in a will that remains unchanged following divorce will now be read as if the former spouse has predeceased the deceased spouse so that the gift or appointment will have no effect. There is a similar provision with respect to former adult interdependent partners. The concept of adult interdependent partners was introduced by the Adult Interdependent Relationship Act approximately a decade ago. Even though the law is retrospective, there are many people who are still unfamiliar with the concept. In short, where two people have lived in a relationship of

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interdependence for at least three years, or for a shorter period of time if there is a child, biological or adopted, of that relationship, and functioned as a domestic and economic unit, they will be considered adult interdependent partners, who, as a result, have certain rights and obligations.

4. Your home (and the furniture) may not be your home for very long after the death of your spouse or adult interdependent partner With the number of people who have had more than one marriage or adult interdependent relationship today, there has been an increasing concern that a surviving spouse or adult interdependent partner not be permitted to remain in the home indefinitely unless the deceased had provided for that in his or her will. This issue is discussed in the article elsewhere in this publication entitled “Wills and Succession Law Amends Family Law”.

5. Death will now be a triggering event under the Matrimonial Property Act. Well, maybe. The proposed provisions of the new Wills and Succession Act and the proposed consequential amendments to the Matrimonial Property Act, allowing for the division of matrimonial property on death, were NOT proclaimed in force February 1, 2012. The scope of these provisions as they exist at present are reviewed elsewhere in this publication in the article entitled “Wills Many people, and not unreasonably, and Succession Law Amends Family Law”. Spouses will be entitled have always thought that divorce, to their share of the matrimonial property prior to any gifts being as opposed to marriage, revoked an made and spouses will also be entitled to receive any gift made to existing will. Intuitively this makes them as well. It is perhaps this proposed change that has caused the greatest sense, but it was not the law until concern among the bar in Alberta because of the potential for February 1, 2012 and it only applies the legislation to undo estate plans, often involving family farms to divorces occurring after the Wills or small businesses, that were made quite deliberately and often and Succession Act came into effect with the concurrence of the spouse, who will not infrequently be a regardless of when a will was made. second or later spouse. Alberta Justice announced just prior to February 1, 2012: “Questions have been raised, particularly from the legal community, about whether it is fair to presume a spouse will inherit if he or she takes their matrimonial property out of the estate. The concerns have been heard and before the matrimonial property provisions come into force, focused discussions with members of the bar will be held to determine how best to proceed on the inheritance issue. The aim is for this technical discussion to be completed by the summer of 2012.”

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6. Categories of dependants are expanded.

March/April 2012

The proposed provisions of the new Wills and Succession Act and the proposed consequential amendments to the Matrimonial Property Act, allowing for the division of matrimonial property on death, were NOT proclaimed in force February 1, 2012.

Spouses, adult interdependent partners, minor children, and children over the age of 18 who by reason of a mental or physical disability are unable by reason thereof to earn a livelihood have long been defined as dependants under dependant relief legislation. The Wills and Succession Act adds two new categories of dependants who may make a claim on a deceased’s estate. First, children under the age of 22 and who are full-time students. Second, minor grandchildren and great grandchildren who depended on a deceased grandparent or great grandparent can seek continued support. Notably, however, dependency of a grandchild or great grandchild was not expanded to include those who are of the age of majority but are disabled and as such cannot earn a livelihood.

7. Consanguinity is out; and parentelic is in; for people who die without a will. If a person dies without a will, or at least a valid will, that is, intestate, different rules now apply to distribution of the deceased’s estate. Where a person dies leaving both a spouse or adult interdependent partner and children of that relationship, the entire estate will now go to the surviving spouse or adult interdependent partner instead of being shared with the children as it used to be. If, however, the deceased has children from more than one relationship, then the surviving spouse or adult interdependent partner will receive a preferential share of the estate and the balance of the estate will go to the deceased’s children equally. The preferential share is the greater of 50% of the net value of the deceased’s estate or $150,000. If there is both a surviving spouse and an adult interdependent partner (which is only possible if the marriage preceded the adult interdependent relationship), then they split the preferential share. If a person is not survived by a spouse or adult interdependent partner; children or grandchildren (that is, any descendants); or parents, then the scheme of distribution applied is no longer concerned with degrees of kindred or the closest blood relative, however remote, but with both maternal and paternal ascendants. The estate will now be divided between relatives on both sides of the deceased’s family.

8. Extrinsic evidence is now admissible in interpreting a will. Extrinsic evidence will now be admissible to interpret a will. The courts may admit any evidence (subject to rules of admissibility and relevancy), including evidence to help prove the testator’s intention, provided it is corroborated. While this provision may result in voluminous evidence being adduced, it will nonetheless greatly assist in determining a testator’s intent when it is in issue.

If a person dies without a will, or at least a valid will, that is, intestate, different rules now apply to distribution of the deceased’s estate.

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9. Courts have new powers to validate wills. The Wills and Succession Act creates new powers that will allow the courts to correct or validate wills and documents purporting to be wills when the death occurs after February 1, 2012. Previously, testamentary documents that did not comply with the formalities required for a valid will could not be admitted to probate.

10. There is no such thing as a simple will.

March/April 2012

Extrinsic evidence will now be admissible to interpret a will. The courts may admit any evidence (subject to rules of admissibility and relevancy), including evidence to help prove the testator’s intention, provided it is corroborated.

While the document ultimately signed as one’s last will may appear simple, and even be short, this is only the end result of estate planning with qualified advisors. Sometimes, given the circumstances of the particular testator, the planning will take much longer than the actual preparation of the will. With the Wills and Succession Act coming into force February 1, 2012, and overhauling law of hundreds of years in the making, people can reasonably expect that their advisors will be asking for additional information and providing new and different advice that is was not possible to provide previously. *Wills and Successions Act S.A. 2010, c. W-12.2

Sherrilynn J. Kelly practises in the Calgary office of Parlee McLaws LLP, where she specializes in estate planning, administration and litigation.

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Š Thinglass | Dreamstime.com

Feature: Wills and Estates

Wills and Succession Law Amends Family Law

T

Kelly Wright

here are two important changes in the area of family law that have been introduced by the new Wills and Succession Act, which came into force on February 1, 2012. First, the new legislation permits the surviving spouse or adult interdependent partner of the deceased to have temporary possession of the family home. Second, the Act addresses how the death of a spouse may potentially affect matrimonial property division.

Temporary Possession of the Family Home The new Wills and Succession Act addresses the needs of the modern Albertan family by allowing for temporary possession of the family home upon the death of a spouse or adult interdependent partner. Prior to this Act, there was no provision for the right of a surviving spouse or

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adult interdependent partner to remain in the family home after the The Wills and Succession Act death of their spouse or adult interdependent partner apart from gives a surviving spouse or adult the Dower Act. That Act gives a surviving spouse the right to a life interdependent partner the right estate in the homestead of their deceased spouse. This legislation, to continue to live in the family however, only applies to a couple who is legally married, and where home for a period of 90 days the family home fits the definition of “homestead” under the Dower Act. Generally, the legislation allows the surviving spouse to have where the surviving spouse or the use and enjoyment of the family home and the contents when adult interdependent partner is the home was registered solely in the name of the deceased spouse. not registered on the certificate The Wills and Succession Act gives a surviving spouse or adult of title or a party to the lease for interdependent partner the right to continue to live in the family the family home, but is ordinarily home for a period of 90 days where the surviving spouse or adult interdependent partner is not registered on the certificate of title or occupying it. a party to the lease for the family home, but is ordinarily occupying it. The calculation of 90 days commences upon the death of the spouse or adult interdependent partner, and is good against all parties that may have an interest in the family home other than a disabled child. The significance of this legislation should not be underestimated. It protects a remaining spouse or adult interdependent partner, and by default any children in the home, from being immediately removed from the family home by third parties. Third parties may include beneficiaries under a will; heirs on intestacy; individuals who hold an interest in the home as a co-owner; landlords; creditors (secured or unsecured); and any individual who enters into a contract to purchase the family home, even where that purchaser enters into the contract without knowing that the surviving spouse or adult interdependent partner has the right of temporary possession. The surviving spouse or adult interdependent partner is also granted the right to the use and enjoyment of the household goods during the 90-day temporary possession. The Wills and Succession Act has a broad definition of “household goods”. Such goods can include all of the household furniture; kitchenware; appliances; art; heirlooms; and likely vehicles, including recreational vehicles. These provisions should prevent families from experiencing further disruption in the short term even where other individuals have an interest in family home and the household goods owned by the deceased. During the period of temporary possession, the estate of the deceased spouse or adult interdependent partner must pay a number of expenses associated with the family home and household goods. Under the Act such expenses include rent or mortgage payments; lease payments in respect of the household goods; insurance premiums necessary to insure the home and household goods; property taxes; utilities; and the cost of reasonable maintenance and repair of the household goods.

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The courts have the authority, nonetheless, to make a variety These provisions should prevent of orders affecting the temporary possession of the family home or families from experiencing further use and enjoyment household goods, upon the application of an disruption in the short term even interested party and in appropriate circumstances. For example, the where other individuals have an survivor, a landlord or anyone else with an interest in the home may apply to the court to terminate, shorten or extend the period of interest in family home and the temporary possession. The cost of any payments made by the estate household goods owned by the associated with the temporary possession of the family home, or use deceased. and enjoyment of household goods may be deducted by the courts from the surviving spouse or adult interdependent partner’s interest in the deceased spouse or adult interdependent partner’s estate. Under the Act, the surviving spouse or adult interdependent partner has an obligation to maintain the home and household goods in a reasonable state of repair during the period of temporary possession. The addition of these provisions in the new Act allows a surviving spouse or adult interdependent partner time to “catch their breath” for a few months even if they ultimately do not remain in the family home. Although this is beneficial to the surviving spouse or adult interdependent partner, it may be difficult for the executor or administrator of the deceased spouse or adult interdependent partner’s estate to pay the household bills if there is little cash or cash-like assets in the estate.

Matrimonial Property Division There are proposed provisions in the Wills and Succession Act, and consequential amendments to the Matrimonial Property Act, that will permit a surviving spouse, but not an adult interdependent partner, to make a matrimonial property claim against the estate of his or her deceased spouse for division of matrimonial property where a surviving spouse owns less than his or her share of the matrimonial property. In Alberta, the division of matrimonial property upon the breakdown of a marriage is governed by the Matrimonial Property Act. This Act only applies to legally The addition of these provisions married spouses. There is no legislation in Alberta that addresses property division upon the breakdown of an adult interdependent in the new Act allows a surviving relationship. Under the Matrimonial Property Act there is, in spouse or adult interdependent general, a presumption of equal division of all assets and liabilities partner time to “catch their breath” acquired by the parties during the marriage unless exemptions for a few months even if they apply. Examples of exemptions include: ultimately do not remain in the • an inheritance or gift to one of the spouses from a third party; family home.

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• the value of property brought into the marriage by one of the parties; and • an award for non-property damages or personal injury insurance proceeds which have been received by one of the spouses during the marriage unless it is compensation for a loss of both spouses. In order to claim an exemption, an exemption must be traceable from the point when the property was received by the party claiming the exemption to the date of matrimonial property division. Once the couple’s assets and liabilities have been identified and valued, the exemptions are deducted and the remaining amount is divided equally between the spouses. However, the court may divide some assets and liabilities it considers to be “just and equitable” rather than equally. Property that the court may divide in a “just and equitable manner” includes: • any increase in value of, or income received from, exempt property; • gifts exchanged between the spouses when both spouses are alive; and • property acquired by a spouse after a decree nisi of divorce; a declaration of nullity of marriage; a judgment of judicial separation; or a declaration of irreconcilability under the Family Law Act is made in respect of the spouses. The Matrimonial Property Act requires the court to take into consideration various factors when deciding to divide matrimonial property unevenly. Currently, the Matrimonial Property Act does not allow for a claim of matrimonial property division unless there has been a breakdown of the marriage. That is, the death of one spouse is not a triggering event under the Act. Hence, a surviving spouse cannot make a claim for a division of matrimonial property under the Matrimonial Property Act even where they have received less property as a consequence of their spouse’s death than they would have received if they had divorced. The effect of dependants relief legislation and the manner in which the courts have interpreted claims by surviving spouses under this kind of legislation, is to at least consider how the surviving spouse would have been treated if the marriage had ended in divorce and not by death. However, outcomes in these kinds of cases have not been consistent. Proposed amendments to the legislation would treat certain property as being part of a deceased spouse’s estate even though the property actually passes outside the estate to a third party by right of survivorship or a beneficiary designation Other proposed amendments make some property exempt from matrimonial Currently, the Matrimonial property division such as property used to pay for the deceased Property Act does not allow for spouse’s funeral expenses and insurance proceeds used to pay debts or to satisfy support obligations. a claim of matrimonial property The most significant proposed amendment to the division unless there has been a Matrimonial Property Act is that any property inherited by the breakdown of the marriage. That surviving spouse from the deceased spouse is in addition to any is, death of one spouse is not a property received after division of the matrimonial property. In triggering event under the Act. virtually all jurisdictions that permit matrimonial property claims

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against an estate, the surviving spouse must decide whether to take In Alberta, the division of what they are entitled to under the matrimonial property regime, or matrimonial property upon whatever they inherit from the deceased spouse. Significantly, there the breakdown of a marriage is is no election provision in the proposed legislation in Alberta. This governed by the Matrimonial means that a surviving spouse in Alberta may receive half of the Property Act. This Act only applies matrimonial property, in addition to any inheritance under a will or on an intestacy. to legally married spouses. There Some would say that it flies in the face of common sense is no legislation in Alberta that that an individual can receive a greater share of the matrimonial addresses property division property in the case of marital breakdown than upon the death of upon the breakdown of an adult his or her spouse. Others have concerns that legislation providing interdependent relationship. for a matrimonial property claim against a deceased’s estate interferes with testamentary freedom. While this matter appeared to be settled in the fall of 2011 in favour of surviving spouses receiving both their share of matrimonial property and any inheritance, shortly before the Wills and Succession Act came into force on February 1, 2012, proclamation of this particular part of the Act was postponed.

Kelly Wright practises with the family law firm of Balbi & Company in Calgary, Alberta. She gratefully acknowledges the assistance provided in writing this article by Lois MacLean and Pat Daunais, QC, who have published and lectured on these topics extensively, and Sherrilynn J. Kelly for editing the article.

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Feature: Wills and Estates

Wills and Estates Can Be Treacherous Territory for Aboriginals

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John Edmond

he jurisdiction of the Minister of Aboriginal Affairs and Northern Development (until last year, “Indian Affairs”) resembles in many ways that of an 11th province. Among the minister’s responsibilities for First Nations people on reserves are education, operation of a land registry, review of municipal-type band council by-laws, and other functions unique in the federal realm. Where status Indians living on a reserve are concerned, matters of succession too, ordinarily within provincial jurisdiction over property, fall to the minister under the federal jurisdiction over “Indians.” This eliminates provincial probate courts and other such normal processes except for matters expressly referred by the minister, and substitutes a bureaucracy within the department to carry out the processes set out in the Indian Act. Under section 42 of the Act, “… all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister … .” The Indian Estates Regulations set out how this authority is to be exercised, and guide the officials who discharge the minister’s responsibilities. The Act restricts the application of this authority to Indians “ordinarily resident” on a reserve (any reserve; not necessarily his or her own), or Crown land. Moreover, it applies only to Indians who have Indian “status” under the Act; not to non-status Indians or to First Nations people who have negotiated self-government and have their own governing statute, such as

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the Nisga’a of north-western British Columbia. Of Canada’s 29 The “ordinarily resident” restriction self-governing First Nations, some have testamentary powers in in the Indian Act is not defined. their own statutes. The situation is somewhat muddied, however, This creates uncertainty; the because a First Nation may, in its self-government agreement, have minister’s authority does not apply reserved to itself jurisdiction over succession, yet not be ready to to the many First Nations people make the necessary laws. For example, the Westbank First Nation, in B.C.’s Okanagan Valley, in its self-government agreement, living permanently in cities or declares its jurisdiction “in relation to the wills and estates of elsewhere off-reserve. Members ordinarily resident on Westbank Lands who are Indians as defined under the Indian Act,” but goes on to provide that the Indian Act succession provisions apply “until such time as the coming into force of the first Westbank Law enacted pursuant to the jurisdiction described in this Part.” Such situations create a minefield for lawyers. For self-governing First Nations without wills and estates jurisdiction, provincial or territorial succession law applies, as it does to non-status Indians and to Canada’s other Aboriginal peoples, the Inuit and Métis. The “ordinarily resident” restriction in the Indian Act is not defined. This creates uncertainty; the minister’s authority does not apply to the many First Nations people living permanently in cities or elsewhere off-reserve. So, in order to know what law applies, the ordinary residence of a deceased First Nations person must be determined. Less than half of First Nations people live on a reserve, and many are highly mobile, moving between reserve and urban centres. However, so long as the person customarily lives on a reserve, the Indian Act applies. One can be ordinarily resident despite being away for an extended period, for education, medical care or in a long-term care facility, or having lived elsewhere most of one’s life but returned to live on the reserve. To accommodate mobility, as well as the uncertainty in the law, lawyers drafting wills for persons of Indian status will often draft a document valid for both the Indian Act and provincial law. But, for a client of a self-governing First Nation they need also to consider whether it has wills and estates jurisdiction and, if so, whether it has made its own law. Indian Act wills need not conform to provincial laws and need be in no particular form; they need only indicate the person’s wishes as to disposition of property upon death. To be valid, a will must be approved by the minister (again, by delegated authority). Indian Act wills need not conform It may be declared partly or wholly void in certain circumstances, to provincial laws and need be including: in no particular form; they need • duress, • hardship caused by failure to provide, only indicate the person’s wishes • disposition of land other than in the band’s interest or as to disposition of property upon contrary to the Act, death. To be valid, a will must be • vagueness such as to preclude proper administration of approved by the minister (again, the estate, and by delegated authority). • terms contrary to the public interest.

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In this respect, the minister’s powers are similar to judicial The Indian Estates Regulations powers, but the minister does not have the wide powers of a judge provide for a departmental to interpret a will. A voided bequest is deemed to have “lapsed,” official to administer estates, who and if the will is wholly voided, the person is deemed to have died either acts as executor, or, if the intestate. deceased has named an executor, The Indian Estates Regulations provide for a departmental official to administer estates, who either acts as executor, or, if provides supervision and ensures the deceased has named an executor, provides supervision and that the terms of the will are ensures that the terms of the will are carried out. Where an estate carried out. is complex, contested, or on request of an heir, the minister may choose to refer probate of a will or a question arising from a will to the otherwise applicable provincial court. The court then stands in place of the minister; it must still exercise its powers in accordance with the Indian Act, but has additional common law powers not inconsistent with the Act. Judicial supervision of the minister’s decisions is in the hands of the Federal Court, which hears appeals where over $500 is at issue, or on consent of the minister. The intestacy rules of the Act provide first for the “survivor,” then, where the estate exceeds $75,000, for children and issue of deceased children. A “survivor” is a spouse or common law partner, so where a separated spouse without a separation agreement is still living and the deceased had a common law partner at death there will be two survivors. The $75,000 portion to go exclusively to the survivor(s) is low compared to the rules of most provinces. Where the deceased died without a survivor, living parents or issue, the estate goes to siblings and their children, and in their absence, to next-of-kin. A restriction apparently intended to ensure that reserve land does not become widely held is that, whereas children of siblings – nieces and nephews – and next-of-kin may inherit nonland interests in the estate on intestacy, land interests revert to the band in the absence of a living sibling. Interests in land are always central to wills and estates issues, Interests in land are always central and nowhere more so than where reserve lands are concerned. The Indian Act land regime is unique. As those following the current to wills and estates issues, and public debate on the merits or otherwise of converting interests in nowhere more so than where reserve lands to fee-simple will be aware, reserve residents do not reserve lands are concerned. The “own” the land they live on. Reserve lands are Crown-owned, and Indian Act land regime is unique. “set apart … for the use and benefit of a band.” Thus the band As those following the current may collectively use, but not own, their reserve. Band councils may allot the right to possess reserve land to band members. (Allotment public debate on the merits or is subject to ministerial approval, now invariably automatic, this otherwise of converting interests being one of many legislative relics of the “Indian agent” era found in reserve lands to fee-simple will in the 1951 Indian Act, the basis for today’s Act.). The band may be aware, reserve residents do not request the minister (in practice, a delegated official) to issue a “own” the land they live on. Certificate of Possession (called a “Location Ticket” before 1951),

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which evidences a legal interest in the land. Some bands prefer the There are many peculiarities. informality of “customary allotments.” These simply arise from The minister’s jurisdiction is occupation, but in the absence of ministerial approval, give no legal limited to “matters and causes interest. A Certificate of Possession is the highest legal interest an testamentary.” This has been taken individual may have in land on a reserve, and is recorded in the to exclude a claim for past child department’s Reserve Land Register. There are significant limitations on the inheritance of real support, and an agreement made property interests. At present, a surviving spouse or common-law during life for entitlement to an partner must be a band member to have the right to continue in intestate’s estate. the family home, though legislation is currently before Parliament to remedy this situation, in the form of Senate Bill S-2, the Family Homes on Reserves and Matrimonial Interests or Rights Act. The Bill provides that any document purporting to permit anyone other than a band member to occupy reserve lands is void, so only band members may inherit the interest given by a Certificate of Possession. So far as non-Indians are concerned, this prohibition reflects the Royal Proclamation of 1763, a foundation principle of which is that reserve lands are inalienable to anyone other than the Crown, but goes further in applying to members of other bands. At present, the only legitimate heir of an interest in a Certificate of Possession is a member of the same band as the testator. If an heir is disentitled from inheriting an interest in a Certificate of Possession, it can be sold to a band member and the proceeds paid to the heir. If there is no buyer, the interest reverts to the band after six months. There are many peculiarities. The minister’s jurisdiction is limited to “matters and causes testamentary.” This has been taken to exclude a claim for past child support, and an agreement made during life for entitlement to an intestate’s estate. Contractual arrangements such as pension plans and investment vehicles may also not be testamentary in nature. Recourse would be to provincial law and the provincial courts. Customary allotments of land, too, not being registered, are not assets of the estate. Bank holdings and payments under life insurance policies are transferred to the Receiver General for credit to the estate. Another issue arises from the protections in the Indian Act against taxation, succession duty and seizure (except for conditional sales): The Regulations require the administrator to pay all debts owing by the estate, though payment of debts to non-Indians may be problematic, given the prohibition in the Act against charge, levy, distress, etc. of real and personal property on a reserve. Wills and estates is a subject rife with difficulties. This is especially so where the Indian Act is involved; it is essential to take great care to review its unique provisions and consider all factual possibilities to avoid problems that, in the case of wills, are usually discovered too late for correction.

John Edmond is an Ottawa lawyer with an interest in public and constitutional law.

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Please Trust Me… in your will

Doris Bonora

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hen making plans for a will, there are so many reasons to use trusts to properly provide for your family. Trusts can be used so perfectly in so many situations. Often, trusts are misunderstood. They are not complicated vehicles set up by billionaires to fund their over-spoiled children…although Paris Hilton has made good use of her trust fund to become a celebrity. Not all trust funds result in Paris Hiltons. A trust is simply taking an asset or a fund of money and putting someone in charge of it. The fund of money is the trust fund. The person in charge is called the “Trustee”. The people who are destined to get the money are the beneficiaries.

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Trusts for Minor Children

March/April 2012

The most simple form of trust are those created for young children. If children receive money under the age of 18, the money must be held in trust and can be paid out for the children’s support.

The most simple form of trust are those created for young children. If children receive money under the age of 18, the money must be held in trust and can be paid out for the children’s support. If nothing more is said in the will, then the children receive the money at 18. We would not recommend giving large sums of money to children at 18 and thus, we would recommend that the child be permitted to receive money from the trust for post secondary education from the trust. The funds can then be paid out in installments over time. For example, the first payment of one-third can be paid at 25 years of age. The second payment of one-third can be made at 30 and the balance at 35. The idea is that the children have the opportunity to make some mistakes with their first instalment, but then, even if they squander the whole amount, they have five years to think about what they did before they get the next installment. They also learn that if they leave money alone, it grows. Many people see this as controlling from the grave, but in fact, it is just smart planning so that children can learn how to handle money and do not get into trouble. Money can often attract bad people. An inheritance should be good news and not the source of trouble.

The Problem Child Trust Trusts can be used to solve problems that people have in their families. If you have a son who has a gambling addiction, it is a bad idea to give him a lump sum of money on your death. The money could be put in a trust so that he can get small sums of money that the trustee can pay directly for rent or food, so that he cannot use the trust funds for gambling. This type of trust can be used for any type of problem such as addictions, or just bad money management.

Trust for Handicapped Child Of course, if you have a handicapped child, then a trust is a necessity. Careful planning is necessary to try to co-ordinate the payment of the trust and government payments such as AISH. Further, there is a need to ensure that the trustee can invest in the generous Registered Disability Savings Plan.

Lifetime Family Trust Perhaps you are concerned about protecting your child’s inheritance in the event of the divorce of your child, or you want to make sure that your child’s inheritance will not just be squandered, but will be passed to your grandchildren. If there are tax advantages, well then, even better. The answer to these concerns is the lifetime family trust.

Trusts can be used to solve problems that people have in their families. If you have a son who has a gambling addiction, it is a bad idea to give him a lump sum of money on your death.

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In the lifetime family trust, you leave money in a trust in which the beneficiaries are your child and your child’s children. The money is held in trust for the child for his or her lifetime, but when your child dies, the funds in the trust are transferred to your grandchildren. The trust fund can be very generous in allowing Of course, if you have a your child to use money as he or she see fit. The fund can be used handicapped child, then a trust to fund your grandchildren’s education. The trust is protected from is a necessity. Careful planning is creditors of your child and from the dangers of a divorce. The trust also has the benefit of providing your child with tax savings. This necessary to try to co-ordinate is a wonderful tool to assist your estate planning and to assist your the payment of the trust and children. government payments such as The experts who have studied the transfer of wealth from one AISH. generation to the next have determined that successful transfer of wealth comes with the transfer of information on handling money. That is often difficult to do, but in the trust, a parent can appoint a family member or friend to act as a co-trustee with your children for a few years to provide guidance on good money management.

Conclusion When preparing your estate plan, think carefully about how you can give your money away wisely. Many people have worked hard to accumulate wealth and wish to pass it to their children. This, of course, can be done, but it would be so wonderful if you could carry on parenting for a time after your death and continue to provide guidance through the use of the trust. If your children knew all the benefits of trusts they might be saying, “Please trust me…in your will."

Doris Bonora is a lawyer with the firm of Reynolds, Mirth, Richards & Farmer LLP in Edmonton, Alberta.

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Unjust Enrichment: Fair is Fair! Judith Milliken,QC and Trevor Todd

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njust enrichment is a legal doctrine based on the general equitable principal that no one should be allowed to profit at another’s expense. In other words, a person should pay for the reasonable value of any benefits, whether property or services, that he or she has unfairly received and kept from another person. Unjust enrichment is an equitable doctrine that originated in the Courts of Equity, the court system parallel to the Courts of Law until the historic merger of the two systems in the 19th century. The equitable remedies developed by the Courts of Equity were based on overarching moral principles designed to alleviate injustices caused by the strict application of the common law. This is important to bear in mind because unjust enrichment is an equitable doctrine founded on moral principles rather than on legal precedent. Thus, it remains a flexible tool for providing compensation in appropriate circumstances.

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Unjust Enrichment: Commercial Context to Domestic Claims

March/April 2012

… unjust enrichment is an equitable doctrine founded on moral principles rather than on legal precedent.

The doctrine of unjust enrichment arose in the commercial world. A simple example would be a minor who signs a contract that is unenforceable because, until he or she becomes an adult, that minor does not have the legal capacity to enter such an agreement. Nevertheless, if the minor receives a benefit under the failed contract, the court likely would require the minor to pay for that benefit, based on the law of unjust enrichment. As an equitable doctrine, there is a great deal of room for discretion by the courts in deciding what is fair in any particular situation. Thus, if duress was used to induce the minor to enter the agreement in the first place, the court would probably decline to exercise its discretion to order repayment, because the claimant did not come to court with “clean hands.” Although the doctrine of unjust enrichment originated in the commercial context, today it applies to a variety of situations. A series of Supreme Court of Canada decisions has broadened the reach of unjust enrichment to include personal relationships. The case of Peter v. Beblow, [1993] 1 S.C.R. 980, was a crucial step in the advancement of unjust enrichment in domestic claims because the Supreme Court recognized that domestic services can support a claim for unjust enrichment. Specifically, it ruled that a spouse has no legal duty to perform household work or services for other family members and may well be entitled to compensation for those services on the breakup of the marriage.

Estate Litigation In estate litigation, claims of unjust enrichment are made where children have provided services to their parents, believing they will be compensated. So, for example, in the case of Antrobus v. Antrobus 2010 BCCA 356, unjust enrichment was found in the case of an eldest daughter who had acted as a “child homemaker” and did all the chores and cared for her younger siblings as a teenager and as a young adult, based on a promise by her parents that she would inherit their entire estates for this work. When Ms. Antrobus’s parents changed their minds many years later, and transferred their property into a trust, she successfully sued them and was awarded $100,000.

Equity Steps where No Legal Remedy Readily Available In the context of breakdown of domestic relationships, unjust enrichment claims are most common in the case of common law marriages or quasi-spousal relationships. Equity steps in to alleviate hardship where there is no remedy at law. Thus, where a couple’s wealth is accumulated during the course of a legal marriage, the Divorce Act and provincial family law statutes will apply so there is a legal remedy available.

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In contrast, however, unmarried couples often have no such rights and thus the doctrine of unjust enrichment may fill in the gaps and redistribute wealth fairly where no legal statute applies.

Recent Clarification of the Law of Unjust Enrichment In the recent case of Kerr v. Baranow, 2011 SCC 10, http://scc.lexum.org/en/201112011scc10/2011scclO. html, the Supreme Court of Canada revisited this area and clarified the law surrounding claims for unjust enrichment. Here are some basic concepts set out by the Supreme Court of Canada in that decision.

The Three Stages of Analysis For a claimant to establish a successful unjust enrichment claim, three conditions must be fulfilled. 1. An enrichment to the defendant; 2. A corresponding deprivation suffered by the claimant; and 3. No juristic reason for the enrichment. In Kerr v. Baranow, supra, at paragraphs [36-39], Cromwell J. explained that the court generally takes a straightforward economic approach to the first two conditions. That is, has the defendant been enriched by the plaintiff? Has the plaintiff correspondingly been deprived in some way? In most cases, the remedy for If monies were paid and received, then this question is likely unjust enrichment will be an relatively straightforward. When, however, the issue is not money award for financial compensation, but rather the provision of services, Cromwell J. said “ ... Provided that they confer a tangible benefit on the defendant, the services that is, money. will generally constitute an enrichment and a corresponding deprivation.” paragraph [113] Thus it seems the legal analysis is relatively straightforward at the first two stages of enquiry – benefit and detriment. The third stage of analysis – the question of a juristic reason – is more often the focus of litigation. This stage of analysis basically boils down to an assessment of whether or not it is fair or just that the plaintiff be compensated. This is the stage where moral and policy questions come into play.

What is an Absence of Juristic Reason? In Kerr v. Baranow, supra, Cromwell J. clarifies “absence of juristic reason” as meaning “that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case.” paragraph [40] How then does a court determine whether or not there is a juristic reason that ought to deny recovery to the claimant?

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The earlier Supreme Court Canada decision, Garland In deciding whether the wealth v. Consumers’ Gas Co., 2004 SCC 25, sets out two stages for has been accumulated as a result determining the presence or absence of juristic reason. of a joint family venture, the court 1. The claimant must show there is no juristic reason within sets out a number of factors to recognized legal categories such as contract, an intention consider. to gift, or any legal or equitable duty that would provide a juristic reason for the benefit to be kept without compensation. If the claimant is able to show no juristic reason exists under any these recognized categories, then we move to the next stage where the burden falls on the defendant. 2. The defendant can rebut the prima facie case of unjust enrichment if he or she can show there is some other valid reason to deny recovery. It is at this stage that the parties’ reasonable expectations and public policy matters will be considered. By way of illustration, Garland had involved a class-action brought by gas consumers who were assessed a one t­ ime late-payment penalty (LPP) that was in excess of the criminal rate of interest. Although that late-payment penalty had been directed by a regulatory body, the court directed that the gas utility should nevertheless repay these monies, ruling “Finally, the overriding public policy consideration in this case is the fact that the LPPs were collected in contravention of the Criminal Code. As a matter of public policy, a criminal should not be permitted to keep the proceeds of his crime.” [paragraph 57]

Monetary Award or Remedial Constructive Trust In most cases, the remedy for unjust enrichment will be an award for financial compensation, that is, money. In some cases, however, the court may recognize that money is not enough and may direct a “remedial constructive trust.” In other words, the court may direct that the plaintiff ’s interest in a particular property be recognized because of the plaintiff ’s contribution to that particular property. In such a case, the court may impose a “constructive trust” by way of remedy. That means the court directs that the defendant holds an interest in the property in trust for the plaintiff. The extent of the trust imposed will be proportionate to the parties’ respective contributions to that property.

Calculation of Monetary Awards Prior to Kerr v. Baranow, there was an argument that if the court chose to make a monetary award, it would be based simply on value received – that is, compensating the claimant on the basis of a reasonable hourly wage for the services rendered. That argument was put to rest in Kerr v. Baranow. Where a monetary award is made, it is not simply calculating an award based on fee for service, that is. treating the disappointed plaintiff as if he or she were hired help and entitled only to be paid wages.

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Kerr v. Baranow establishes that where the joint efforts of both partners result in the accumulation of wealth over time, it would be unfair to allow one party to keep a disproportionate share of the wealth and pay the other partner out as if that individual were hired help. Both partners are entitled to a proportionate share of the increase in wealth. In Kerr v. Baranow, the court emphasizes that unjust enrichment does not mandate a presumption of equal sharing; where the parties were engaged in a common venture where they expect to share the benefits flowing from the wealth they jointly create, they will be viewed as partners in a common venture and, as such, each is entitled to a proportionate share. In deciding whether the wealth has been accumulated as a result of a joint family venture, the court sets out a number of factors to consider.

a. Mutual Effort Was the couple working collaboratively toward common goals? Did they pool their efforts? Their resources?

b. Economic Integration What was the degree of economic interdependence? Did they have a joint bank account that was used as a common purse?

c. Actual Intent Did they intend to share their wealth? Was the title to property jointly held? Did they keep their financial affairs separate and do detailed accounting of monies spent for household expenses and so on? What did they plan for property distribution on their death – what do their Wills say?

d. Priority of the Family To what extent was the family a priority in their decision-making? Were they planning a shared future and relying on the stability of the relationship for future economic security to their own detriment? Did one partner leave the workforce to raise children? Relocate to benefit the partner’s career? Forego a promotion and move for the benefit of the family? By way of illustration, one of the trial decisions under consideration in Kerr v. Baranow was a common law couple who had lived together for 12 years and had two children. Four years into their relationship, the wife took a leave from her position as an intelligence agent with CSIS to accompany her husband to Halifax to pursue his new business. She was fully responsible on the homefront, raising their young children, thus freeing him to build the business. After the couple moved back to Ottawa a few years later, the business was sold for $11 million. On those facts, the court ruled that the husband held a share of those proceeds in trust for the wife on the basis that the business had been a joint family venture and that she was a co-venturer. The wife was not given 50 percent of the sale proceeds of the business, but she certainly received much more than an hourly wage based on her claim for unlawful enrichment.

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Mutual Benefits Conferred Where mutual benefits have been conferred by both parties, then the court says these should not be considered at the benefit and detriment stages of analysis. Mutual benefits may be considered at the juristic reason stage only to the extent they may provide evidence of the parties’ reasonable expectations. In that sense, they may provide evidence relevant to the question of a juristic reason for the enrichment. Beyond that, they will be considered at the defence and remedy stage, in terms of deciding an appropriate award to the plaintiff.

Conclusion We hope this article gives the reader an understanding of the flexible scope of the law of unjust enrichment in the area of wills and estate law.

Judith Milliken, QC, has practised law for 33 years in the areas of commercial law, criminal law, and most recently estate litigation. She practises estate litigation together with her husband Trevor Todd. Trevor Todd restricts his practice to Wills, estates, and estate litigation. He has practised law for 34 years and is a past chair of the Wills and Trusts (Vancouver) Subsection, BC Branch of the Canadian Bar Association.

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belief religion comment

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Freedom of

Canadian guidance

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decision

comment

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paradigm court

Conscience morality belief

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What it Means for Canadians Linda McKay-Panos

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hile the Canadian Charter of Rights and Freedoms (“Charter”) s. 2(a) provides that “everyone has the right of freedom of conscience and religion”, the Supreme Court of Canada (“SCC”) has only ever heard cases that primarily engage freedom of religion. It has not yet heard a freedom of conscience case that does not also involve freedom of religion. The Court has made limited comments about freedom of conscience in minority decisions or in obiter (a remark said in passing that does not form a necessary part of the court’s decision). Since freedom of religion and freedom of conscience are two different (albeit related) rights, it would be helpful if the Supreme Court of Canada would be asked to provide guidance on freedom of conscience.

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Special Report:

Freedom of Conscience

In the meantime, we have some guidance in international law, academic literature and other case law. Freedom of conscience in a democratic society is said to be the “freedom to have, hold and act upon (or not) one’s conscientiously-held beliefs” (Greg Peters, Nurturing the Spirit of Democracy: Freedom of Conscience, University of New Brunswick, 2001 Online: www.unb.ca/democracy/English/Ideas/ Freedoms/Conscience/conscience%20paper.pdf) International law provides the following guidance in the United Nations' Universal Declaration of Human Rights: Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.

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Because Chief Justice Dickson states that the protection in Charter s. 2(a) protects “whatever” beliefs our consciences dictate, this implies that non-religious beliefs may be protected as well as religious beliefs.

Article 18: Everyone has the right to freedom of thought, conscience and religion; this includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. The latter article is echoed in the International Covenant on Civil and Political Rights, which provides: Article 18: Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. The SCC has provided guidance in the case of R v Big M Drug Mart Ltd., [1985] 1 SCR 295. This case deals with a challenge to the Lord’s Day Act. Chief Justice Dickson states (para 123): The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. Because Chief Justice Dickson states that the protection in Charter s. 2(a) protects “whatever” beliefs our consciences dictate, this implies that non-religious beliefs may be protected as well as religious beliefs. In R v Morgentaler, [1988] 1 SCR 30, Justice Bertha Wilson wrote a concurring decision with respect to the constitutionality of the abortion provisions of the Criminal Code. She discusses the finding of Chief Justice Dickson (in Big M Drug Mart) with respect to both freedom of religion and freedom of conscience at pages 177-178: The Chief Justice sees religious belief and practice as the paradigmatic example of conscientiously-held beliefs and manifestations and as such protected by the Charter. But

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I do not think he is saying that a personal morality which is not founded in religion is outside the protection of s. 2(a). Certainly, it would be my view that conscientious beliefs which are not religiously motivated are equally protected by freedom of conscience in s. 2(a). In so saying I am not unmindful of the fact that the Charter opens with an affirmation that ‘Canada is founded upon principles that recognize the supremacy of God….’’ But I am also mindful that the values entrenched in the Charter are those which characterize a free and democratic society. Justice Wilson goes on to state Justice Wilson goes on to state (at page 179): (at page 179): It seems to me, therefore, that in a free and democratic It seems to me, therefore, society ‘freedom of conscience and religion’ should be that in a free and democratic broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular society ‘freedom of conscience morality. Indeed, as a matter of statutory interpretation, and religion’ should be ‘conscience’ and ‘religion’ should not be treated as broadly construed to extend tautologous if capable of independent, although related, to conscientiously-held meaning. beliefs, whether grounded Chief Justice Lamer, dissenting in Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519, adopted the comments of in religion or in a secular Chief Justice Dickson as follows: morality. …while keeping in mind that the Charter has established the essentially secular nature of Canadian society and the central place of freedom of conscience in the operation of our institutions. As Dickson J. said in Big M Drug Mart, supra, at p. 336: A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct.  A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. He went on to add (at p. 346): It should also be noted . . . that an emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition.  The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government. In Syndicat Northcrest v Amselem, [2004] 2 SCR 551, a case largely about freedom of religion, the SCC was sharply divided on the scope of the right. The majority (per Justice Iacobucci), broadly defined freedom of religion as including sincerely held subjective beliefs that have a religious nexus, regardless of whether the beliefs are supported by objective evidence of religious dogma (authoritative principles) (para 39). Justice Bastarache, in dissent, held that the majority’s approach did not adequately distinguish between “genuine religious beliefs and personal choices or practices that are

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unrelated to the freedom of conscience” (para 135). This would Note that the European decision appear to treat freedom of religion and conscience as synonymous. clearly provides that “freedom He also noted that religious beliefs must be connected to a body of of conscience” protects secular objectively identifiable religious precepts (paras 138 to 144). Justice values and opinions. Bastarache’s interpretation of freedom of religion could be quite limiting for freedom of conscience. In Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, Justice Rosalie Abella, writing for the minority, cites from a European Court of Human Rights judgment (Kokkinakis v Greece, Series A No. 260-A), which found that (para 128): … freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. Note that the European decision clearly provides that “freedom of conscience” protects secular values and opinions. There are some lower court decisions that appear to recognize the independent significance of protecting practices that are grounded in non-religious belief systems. In Roach v Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 FC 406, a Toronto resident, born in Trinidad and Tobago, applied for Canadian citizenship, but because of his republican views, was unwilling to swear allegiance to the Queen as required in the citizenship ceremony. He sought a declaration from the court that he was entitled to become a citizen without taking the oath or affirmation in its current form. He argued that the oath was a violation of his right to freedom of conscience under the Charter (among other rights violations). While the majority found no Charter violations, Justice Linden said the following about freedom of conscience: It seems, therefore, that freedom of conscience is broader than freedom of religion. The latter relates more to religious views derived from established religious institutions, whereas the former is aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organized religious principles. These are serious matters of conscience. Consequently the appellant is not limited to challenging the oath or affirmation on the basis of a belief grounded in religion in order to rely on freedom of conscience under paragraph 2(a) of the Charter. For example, a secular conscientious objection to service in the military might well fall within the ambit of freedom of conscience, though not religion. However, as Madam Justice Wilson indicated, ‘conscience’ and ‘religion’ have related meanings in that they both describe the location of profound moral and ethical beliefs, as distinguished from political or other beliefs which are protected by paragraph 2(b).

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In Maurice v Canada (Attorney General), [2002] FCT 69, Maurice, a federal inmate, was entitled to receive a vegetarian diet until he renounced his Hare Krishna faith. Then, Correctional Services Canada (“CSC”) refused to provide him with a vegetarian diet, even though Maurice insisted that it was a matter of moral conscience. In finding that his freedom of conscience had been violated, Justice Campbell said (para 8): Thus, while the CSC has recognized its legal duty to facilitate the religious freedoms outlined in the Charter, freedom of conscience has effectively been ignored. Section 2(a) of the Charter affords the fundamental freedom of both religion and conscience, yet by the CSC’s policy, inmates with conscientiously held beliefs may be denied expression of their “conscience”. In my opinion the CSC’s approach is inconsistent. The CSC cannot incorporate s.2(a) of the Charter in a piecemeal manner; both freedoms are to be recognized. Justice Campbell was satisfied that vegetarianism is a belief system (the consumption of animals is morally wrong) that qualified as conscientious in this case (Maurice, para 9). In commenting on this case, Bruce Ryder states that “Not all beliefs or opinions can qualify as matters of conscience; otherwise David Brown argues that the freedom of conscience would become freedom to disregard all laws SCC to date has viewed freedom with which we disagree” ("State Neutrality and Religious Freedom" of religion and freedom of (2005) 29 SCLR (2d) at 169 193 (“Ryder”)). He goes on to argue that freedom of conscience under Charter s. 2(a) “ought to embrace conscience as distinct, but “closely comprehensive religious belief systems that have the kinds of related concepts” significance in the lives of believers analogous to the significance of religion in the lives of the devout” (Ryder at 193-4). David Brown argues that the SCC to date has viewed freedom of religion and freedom of conscience as distinct, but “closely related concepts” ("Neutrality or Privilege? A Comment on Religious Freedom" (2005) 29 SCLR (2d) 221 at 228 (“Brown”)). He also agrees with Ryder that “not all beliefs or opinions can qualify as matters of conscience” but also that there needs to be more analysis about the scope of freedom of conscience, “its practical manifestation in individual conduct and the extent to which the Charter offers protection against state actions materially affecting such conduct” (Brown at 229). Timothy Macklem, in "Faith as a Secular Value" (2000) 45 McGill L.J. 1 discusses the difference between religion and conscience as follows (at 36): In short, religious belief is sustained by faith, conscientious belief by reason. It is true that the claims of religion and the claims of conscience frequently coincide, as in conscientious objector cases, for religion commonly asks us to believe what there is reason to believe as a matter of conscience. Yet only the claims of religion are consequently referred to as faith, for only the claims of religion are endorsed as a matter of faith. The claims of conscience, by contrast, are the product of reason.

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What is freedom of conscience? The existing caselaw and authorities seem to suggest that freedom of conscience and freedom of religion can be separate and should not be conflated. In addition, they hint that freedom of conscience would embrace strongly held moral and ethical beliefs. However, until there is a SCC case that addresses freedom of conscience directly, it is difficult to predict its exact meaning. It may be that the SCC will struggle with this concept as much as it has with freedom of religion. Many of the rights in the Charter are elusive and difficult to define. Yet, they are critical in a democracy.

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What is freedom of conscience? The existing caselaw and authorities seem to suggest that freedom of conscience and freedom of religion can be separate and should not be conflated.

Linda McKay-Panos, BEd. JD, LLM is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.

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PEN Canada: On Guard for Freedom of Expression Rob Normey

“If liberty means anything at all, it means the right to tell people what they do not want to hear.” — George Orwell, “The Freedom of the Press,” 1944

I. What is PEN Canada? Pen Canada is the writer’s organization that advocates on behalf of writers around the globe facing persecution or imprisonment and on behalf of freedom of expression in various contexts. It is the Canadian chapter of International PEN, founded in England in 1921 to represent “poets, essayists and novelists.” Its very first president was the barrister who became a successful playwright and novelist, John Galsworthy. Local chapters began forming in various countries and a PEN centre was first established in Montreal in 1926. In 1983 the English-speaking centre, PEN Canada, moved to Toronto, while the French-speaking centre continues its work in Montreal.

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PEN Canada’s Mission Statement reads as follows: PEN Canada has over 1200 PEN Canada is a nonpartisan organization of writers members and supporters and that works with others to defend freedom of expression is described as one of the most as a basic human right, at home and abroad. PEN active of the 145 centres of Canada promotes literature, fights censorship, helps free International PEN. A major aspect persecuted writers from prison, and assists writers living in exile in Canada. of its work is to support writers PEN Canada is committed to defending freedom of who have been forced into silence expression and the peaceable expression of such opinion, as for writing the truth as they see it. guaranteed in Article 19 of the Universal Declaration of Human Rights. In Canada it supports the right to freedom of expression enshrined in Section 2 (b) of the Charter of Rights and Freedoms. So PEN Canada is just one year younger than our Charter of Rights and it will be interesting to consider its activities in the context of the promotion and development of Charter rights and values. PEN Canada has over 1200 members and supporters and is described as one of the most active of the 145 centres of International PEN. A major aspect of its work is to support writers who have been forced into silence for writing the truth as they see it. Indeed current President of PEN Canada, Charles Foran, ends his President’s Letter by stating that “The writer who can speak is obliged to do so for the one who has been silenced; the author with the freedom must insist that the basic right be upheld elsewhere. We are all in this together.” The ongoing work of PEN revolves around three established programs: Writers in Prison, Writers in Exile and National Affairs. Anyone wishing detailed information about the activities or about becoming a member (one need not be a writer) can check out: www.pencanada.ca. PEN Canada has ceaselessly advocated on behalf of any number of writers, seeking to defend their liberty and even their lives. Campaigns have been launched, for example, for Ken Saro Wiwa, Salman Rushdie and Aung San Suu Kyi. While the situation of writers facing imprisonment is naturally a high priority for PEN, it should be remembered that freedom of expression is a multifaceted right that must be fought for in a variety of contexts. Writers do face censorship in Canada and elsewhere, and PEN, to its credit, defends writers even where this may not be the popular thing to do. As this issue of LawNow is devoted to freedom of conscience I would ask the reader to consider that the defence of the fundamental Canadian value of freedom of expression will often encompass matters of freedom of conscience. For instance, a writer offering a criticism of a war she considers unnecessary may well draw on matters of conscience to make her case. While a philosophical consideration of freedom of expression is beyond the scope of this article, we in the English-speaking world can continue to cherish the proud tradition of defending free speech that includes John Milton’s works. His highly influential 1644 pamphlet Aeropagitica: A speech for the liberty of unlicensed printing to the Parliament of England shines as a beacon in free

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speech discourse. One of Milton’s passionate statements from the As this issue of LawNow is pamphlet, “A good book is the precious lifeblood of a master spirit, devoted to freedom of conscience embalmed and treasured up on purpose to a life beyond life” – is I would ask the reader to actually inscribed over the entrance to the Main Reading Room of consider that the defence of the the New York Public Library. fundamental Canadian value of George Orwell, that “wintry conscience of a generation” to use the book title of one of his biographers, was just one of the freedom of expression will often many writers over the decades who have contributed considerable encompass matters of freedom of time and effort to PEN’s ongoing battles with the foes of freedom conscience. For instance, a writer of expression. He was inspired in 1946 to write one of his best offering a criticism of a war she essays, “The Prevention of Literature,” following a PEN Club considers unnecessary may well meeting to mark the tercentenary of Milton’s Aeropagitica. The essay gives a fairly insightful summary of the many forces working draw on matters of conscience to against the full exercise of the freedom of thought of a writer, make her case. beyond active persecution. He perceives clearly the various ways in which unofficial censorship seriously restricts the writer, leading at times to self-censorship. At one point he succinctly gives us his credo: “To write in plain, vigorous language one has to think fearlessly, and if one thinks fearlessly one cannot be politically orthodox.” An illustration of what writers and groups like PEN can do when they “think fearlessly” involves the case of a close intellectual companion of Orwell’s, the Russian writer Victor Serge, who was born in Belgium. Serge was the first to call the USSR a “totalitarian state” in a letter he wrote to friends shortly before his arrest in 1933. Serge’s plight was the subject of a series of ongoing efforts by writers from abroad. At the International Writers’ Congress for the Defence of Culture held in Paris in 1935, Serge’s case was raised by many delegates. This led the President of the Congress, Andre Gide, to visit the Soviet ambassador in Paris shortly thereafter to request the writer’s release. Later, the writer Romain Rolland, on a state visit to the Soviet Union, met with Stalin himself. The case was causing the Soviets much embarrassment and it was only the forceful intervention of writers that saved Serge from execution. The dictator ultimately released Serge from his enforced “internal exile” in Orenberg, reuniting him with his mentally fragile wife and infant daughter, and putting him on a train to Warsaw, stripped of his Soviet PEN Canada has unfortunately citizenship. This is the sole instance, during the Great Terror, when been compelled to campaign in a writer was freed as a result of a foreign campaign of support. recent times for other Russian Susan Sontag provides a masterful introduction to one of the great writers, notwithstanding the novels of the 20th century, Serge’s The Case of Comrade Tulayev, breakup of the Soviet Union itself. offering a full account of Serge’s significance and career. His other works are noteworthy as well and I recall the vivid images at the Campaigns have been launched outset of Serge’s Memoirs of a Revolutionary, of his time growing up for Anna Politkovskaya and other in temporary, humble lodgings where “there were always portraits of Russian journalists. men who had been hanged.”

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II. They Who Tell the Truth Shall Die

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Information on PEN Canada’s campaign for Anna Politkovskaya can be obtained from its website. It must never be forgotten that this fearless journalist was subjected to a campaign of harassment from authorities for her investigations into human rights abuses in Chechnya and elsewhere.

PEN Canada has unfortunately been compelled to campaign in recent times for other Russian writers, notwithstanding the breakup of the Soviet Union itself. Campaigns have been launched for Anna Politkovskaya and other Russian journalists. On October 7, 2011, the fifth anniversary of the murder of Anna Politkovskaya, the acclaimed journalist, author and human rights advocate, PEN centres around the world marked her passing with various events and renewed appeals to Russian authorities for justice to be done. The Russian police and prosecution appear to have conducted a less than satisfactory investigation into her murder to date. Three men were put on trial and acquitted due to a lack of evidence on Feb 19, 2009. That trial has been described as seriously flawed. While further investigation has been carried out by Russia’s General Prosecutor and two subsequent arrests have been made, it remains to be seen whether concrete steps will be taken to solve the many questions hanging over her probable assassination. Information on PEN Canada’s campaign for Anna Politkovskaya can be obtained from its website. It must never be forgotten that this fearless journalist was subjected to a campaign of harassment from authorities for her investigations into human rights abuses in Chechnya and elsewhere. A high number of other Russian journalists have been slain in the Putin era as well. Reflecting on the dangers to those prepared to put their lives on the line in Russia in the service of telling the truth put me in mind of the disturbing documentary on another very dead writer, the Catholic Marxist, gay poet and novelist, maker of the finest film adapted from the Good Book, and exemplary rebel against modern-day corruption, Pier Paolo Pasolini. It’s called Whoever Tells The Truth Shall Die, directed by Philip Bregstein. We are left with Anna Politskoyskaya’s Final Dispatches – Is Journalism Worth Dying For?, which contains her meditations on how easy it is to become a pariah if one works against the grain. She played such a significant role in attempting to move Russia closer to democracy. I think of her involvement as negotiator at the Theatre Dubrovka in Moscow in 2002, as one of the individuals most trusted to resolve the matter peacefully – and how she described the extreme cold she experienced in the theatre and her sense of dread, “Never had a theatre in the entire world been so packed with explosives.” She also counts the cost of doing investigative journalism in a war zone during an interview, when she states, “I’ve seen so many men’s tears that I no longer cry myself.”

III. “Won’t You Help To Sing These Songs of Freedom“? (Bob Marley, Redemption Song) PEN Canada is involved in a number of other campaigns on behalf of writers facing persecution or imprisonment, often without trial. For instance, it has worked diligently on behalf of the Eritrean poet and journalist Dawit Isaac, who has been imprisoned without charge in unimaginably harsh conditions in Eritrea for more than ten years.

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Dawit Isaac left Eritrea for a time to seek refuge from the PEN Canada is involved in a carnage caused by the three-decades long struggle of his country number of other campaigns from independence from Ethiopia. He and his wife and three on behalf of writers facing children were able to obtain Swedish citizenship and build a life persecution or imprisonment, for themselves in their adopted homeland. In April 2001, Dawit determined that he would take on the responsibility of an acclaimed often without trial. For instance, author and journalist and so returned to Eritrea to help build the it has worked diligently on behalf country on firm democratic foundations. He wrote for Eritrea’s of the Eritrean poet and journalist first independent newspaper, Setit, which he co-founded and which Dawit Isaac, who has been developed a reputation for investigative reporting. Dawit was also imprisoned without charge in someone who had the potential to be considered the national poet of Eritrea. His long poem The Tale of Moses and Manna’s Love was unimaginably harsh conditions in eagerly acquired by Eritrean students and read to one another. It Eritrea for more than ten years. tells the tale of the two young lovers, of high school age, who must overcome the obstacles of parental disapproval to continue seeing one another. Dawit is currently believed by some to be held in a tiny cell, shackled, in a maximum security prison on the outskirts of Asmara. In honour of his courage and his commitment to peaceful free expression, he was awarded the Golden Pen of Freedom by the World Association of Newspapers in 2011. Dawit’s brother, Esayas, accepted the award on his behalf, stating, “The Golden Pen of Freedom breaks the Eritrean government’s attempt to create a wall of silence around Dawit and all other imprisoned journalists.” Details about Dawit’s unjust imprisonment can be gleaned from a number of sources including the African Commission Request by the Respondent State to Dismiss, Annex II, of the African Union Report, Executive Council, 25-27 June, 2007, Accra, Ghana. In concluding that the imprisonment of Dawit and other journalists deprives them of their right to freely express and disseminate their opinions and breaches the public’s right to information, contrary to Article 9 of the African Charter, the Report states at para 106: Moreover, banning the entire private press on the grounds that it constitutes a threat to the incumbent government is a violation of the right to freedom of expression…A free press is one of the tenets of a democratic society, and a valuable check on potential excesses by government. While Dawit has been temporarily silenced, his words published in Setit in 2011 continue to resound, “People can tolerate hunger and other problems for a long time, but they cannot tolerate the absence of good administration and justice.” As part of its campaign, PEN Canada asks that interested persons appeal to Eritrean authorities requesting Dawit Isaac’s release in light of the total absence of a charge or any proper legal procedure, together with the release of other imprisoned journalists. Dawit and the others have been made honorary members of PEN Canada and words of hope by Canadian writers can be accessed on the website.

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IV. The Man in Blue Pajamas nother important component of the valuable support for free expression provided by PEN is A the Writer in Exile Program. As part of this wider program, there is a PEN Canada City of Edmonton Writer in Exile Program, a partnership between PEN and other organizations. The goal is to help writers who have fled persecution in their home country establish a career in Canada. John Raulston Saul, currently President of International PEN, challenged local organizations to partner with PEN to create the program in 2006. I met with the holder of the first PEN City of Edmonton Writer in Exile post for the year 2007, Jalal Barzanji, on a mild January day this year. He has just last year published his prison memoir, The Man in Blue Pajamas, about life as a (somewhat) free Kurdish poet and as a prisoner in Saddam Hussein’s Iraq. One can’t help but cast aside one’s cynicism when encountering this amiable poet’s enthusiasm for life in his adopted country. In fact, he was just back from one of several trips back to Kurdistan, in northern Iraq, and informed me that, for the first time, he felt homesick for his “second home” – Canada – Another important component while there. We had an interesting conversation about the old Arab of the valuable support for free proverb, “When Allah made Hell, he did not think it bad enough, expression provided by PEN is the so he created Mesopotamia.” Jalal offered his thoughts on how such Writer in Exile Program. As part a state of affairs could possibly change, at least in Kurdistan. of this wider program, there is Jalal’s memoir recounts his time as a young man in the Kurdish city of Hawler, in Iraq, his burgeoning career as a poet, a PEN Canada City of Edmonton including his experiences with decidedly unfriendly censors, and his Writer in Exile Program, being a sudden and shocking imprisonment without charge in 1986. His partnership between PEN and time in prison is then vividly brought to life, including stories of other organizations. the men he would bond with in his two years in confinement (his pajamas turning from blue to mud-coloured). Following his release as part of a general amnesty, we follow him and his family from Iraq to a precarious period in Turkey awaiting a determination by the Office of the United Nations High Commissioner for Refugees. Finally, we experience with him the startling contrast of his former life with life in Edmonton, the most northerly city in North America, staying initially at a place called, appropriately enough, Welcome House. Having to support himself and his family left Jalal little time initially for continuing his writing career on any sustained basis, so the author emphasized to me just how important the “gift” of the Writer in Exile post was to him. It gave him a stipend and a place to write (the central downtown public library) and the time to compose his memoir. His book ends with his witnessing on television the trial and execution of Saddam Hussein. The program established by PEN and the other organizations allowed him to serve as witness to, as he states at book’s end, “these crimes that were committed against Kurdish people and humanity.”

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Adopting Albert Camus’ definition of a rebel – “A man who says no” – I see Jalal as one of life’s gentle rebels. As he made clear to me, it was his refusal to speak in favour of Saddam’s regime at various points that led to his imprisonment, and to a longer stretch in jail than would otherwise have been the case.

V. Little Sisters Encounters the Thought Police PEN Canada also initiates a number of projects or action plans to promote freedom of expression in Canada. PEN Canada was an intervener in support of Little Sisters Books, as it faced ongoing difficulties with Canada Customs over many years. The obstructive behaviour of Customs officials in relation to the shipment of books and related materials from the U.S. to the bookstore in Vancouver, including seizures followed by confiscation of the books, or lengthy delays in reviewing the items to determine if they were obscene, finally led the exasperated owners of Little Sisters to embark on a lengthy and PEN Canada also initiates a expensive court battle. The first court case led to a verdict at the number of projects or action plans Supreme Court of Canada after more than nine years, amounting to promote freedom of expression to a partial victory for the store and for freedom of expression and equality rights. in Canada. One action it undertook What Little Sisters considered harassment by Canada to its considerable credit was its Customs unfortunately continued after the enormous efforts support of Little Sisters Books, as that had been expended to obtain Charter of Rights relief from it faced ongoing difficulties with the courts. This second round of litigation ended with a second Canada Customs over many years. Supreme Court judgment, this time on the question of costs. Brendan de Caires, Program Coordinator with PEN, provided me with a useful summary of PEN’s perspective on the matter as follows: Although financial support from the community and various supporters helped fund Little Sister’s case, lack of funds continued to be a crucial issue.… The bookstore, having spent millions in its 20 years of ongoing legal costs, would have needed hundreds of thousands of dollars in order to continue its appeal. The case verdict, announced on Jan 19, 2007, finally denied Little Sister’s the advance funding it needed to pay its interim costs … After the 2007 ruling of the Supreme Court, National Affairs Chair Christopher Waddell expressed PEN Canada’s deep regret on two counts, stating that “PEN Canada believes censoring and restricting freedom of expression in a free and democratic country is always a matter of compelling national interest and is disappointed that the Supreme Court does not seem to share that view.” Waddell went on to speak of the need for financial support by individuals and small enterprises in order to challenge the arbitrary power of the state in these circumstances, a state of affairs he

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considered was not properly acknowledged by the Court. Further, Margaret Atwood, proposes a he forcefully drew attention to the fact that the decision came after Tomb of the Unknown Writer be the government of Prime Minister Stephen Harper cancelled the established. No, this would not Court Challenges Program in 2006. involve recognition of all those Those who wish to obtain an insightful analysis of the who could not get published but ongoing legal struggles of Little Sisters, with plenty of opportunity to hear from many of the key players in the drama, can watch the rather writers who have been documentary Little Sisters v. Big Brother. One of those interviewed punished merely for daring to was the PEN Canada President at the time, Nino Ricci. Ricci is the have offered up their words to author of five novels, one of which won the Governor-General’s the world and have paid the Award, as well as a short biography of Pierre Trudeau. I spoke to ultimate price in the wars of the Ricci to gain a better sense of PEN Canada’s interest in the cases. He told me the following: imagination. PEN Canada has always made a point of calling attention not just to freedom of expression abuses that happen abroad but to those that happen in Canada. During my own years on the board of directors in the 1990s, we dealt with a number of national issues, including libel chill, federal cuts to native communication programs, and books seizures by Canada Customs. Customs seizures were a particularly insidious abuse. The data showed that Customs officials inordinately targeted deliveries bound for gay and lesbian bookstores, often holding up their books for months and causing the stores serious financial hardship, though the books seized were often of clear literary or academic value or ones that had easily made their way into the country when bound for other destinations. PEN was active on this issue over many years. I myself appeared as an expert witness in the Charter challenge mounted by Little Sisters Bookstore, reviewing a number of the books that had been seized and trying to highlight the inappropriateness of having customs officials with no literary training trying to make assessments of literary value. The Little Sisters trial amply demonstrated how easily a government can abuse the right to free expression even in a free and democratic country like Canada. Despite the Supreme Court’s clear finding of abuse by Canada Customs, their decision was so ringed round with qualifications that it provided little practical help for Little Sisters. Indeed, the customs abuses continued even after to court’s decision, though by that point Little Sisters lacked the financial resources to continue the fight against them. I think the majority on the Supreme Court of Canada got the advance costs issue wrong in its 2007 decision in Little Sisters Book & Art Emporium v. Canada. I consider that the dissenting judgment of Justice Ian Binnie, for himself and Justice Fish, employed superior reasoning to that of the majority. Note particularly para 123 of Justice Binnie’s judgment, where he quotes the words of the 1965 Ontario Court of Appeal case of R. v. C. Coles Co in support of his position that book

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censorship has long been considered particularly offensive to civil liberties. The C. Coles judgment involved the dismissal of obscenity charges against the most prosecuted novel in history, Fanny Hill: Memoirs of a Woman of Pleasure, by John Cleland. Indeed, the book was successfully prosecuted in Britain as late as 1964, continuing a long tradition dating back to at least 1757, when a bookseller named Drybutter was sentenced to the pillory for publishing an edition which was decorated with “certain inflammatory pictorial details.” The Ontario courts had the able assistance of an expert witness called for the defence, one Robertson Davies, novelist, who spoke of the novel’s considerable literary merit and admirable candour, notwithstanding that certain scenes were in bad taste. The Ontario Court of Appeal speaks of the freedom to write books and the freedom to treat with complete candor various aspects of human life as being fundamental to progress in a free society.

VI. Final Pensive Thoughts As indicated earlier, PEN was involved in the campaign to defend the life of Salman Rushdie and his freedom to write a controversial novel without threats to his safety. A volume of letters by a number of writers to Rushdie was published as The Rushdie Letters in 1992. This came out at a time when it was not, in fact, certain that Rushdie would remain alive, and involves a response not only to the declaration of a fatwa but also to events like the rallies in which posters of Salman Rushdie hung on walls with the caption: “Wanted Dead or Alive.” One of the contributors, Margaret Atwood, proposes a Tomb of the Unknown Writer be established. No, this would not involve recognition of all those who could not get published but rather writers who have been punished merely for daring to have offered up their words to the world and have paid the ultimate price in the wars of the imagination. It’s a terrible shame that a Tomb of the Unknown Writer is needed now more than ever and perhaps this should cause Canadians to consider offering their support to PEN Canada.

The Ontario courts had the able assistance of an expert witness called for the defence, one Robertson Davies, novelist, who spoke of the novel’s considerable literary merit and admirable candour, notwithstanding that certain scenes were in bad taste. The Ontario Court of Appeal speaks of the freedom to write books and the freedom to treat with complete candor various aspects of human life as being fundamental to progress in a free society. Robert Normey is a lawyer with the Constitutional and Aboriginal Law Branch of Alberta Justice in Edmonton, Alberta. The assistance of author Nino Ricci and Brendan de Caires, Program Coordinator, PEN Canada is gratefully acknowledged.

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48 Human Rights Law Linda McKay-Panos Sizing Up Discrimination

51 Follow-up on Famous Canadian Cases Peter Bowal, Omar Khan and Karen Perry Whatever Happened To … The Irwin Toy Company?

55 Family Law Rosemarie Boll “If I knew then what I know now…” Varying Spousal Support

58 Online Law Marilyn Doyle Free to Take a Stand

61 Not-for-Profit Law Peter Broder Transparency for All?

s Employee only!

64 Employment Law Peter Bowal and Andrew McLeod Union and Disunion – Solidarity Forever?

67 Law and Literature Robert Normey

Resistance to Dictatorship

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Human Rights Law

March/April 2012

Sizing Up Discrimination Linda McKay-Panos

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recent decision of the Canadian Transportation Agency, Malcolm Johnson v Air Canada (Decision No. 2-AT-A-2012), brings to mind the issue of why some grounds are not covered by human rights legislation. Unlike the Canadian Charter of Rights and Freedoms, s. 15(1), which allows for discrimination suits based both on grounds listed (e.g., race, sex, age) and analogous grounds (e.g., sexual orientation), human rights statutes have closed grounds. If a ground is not listed in the legislation, it is not covered. So, the grounds of size and height are not currently covered in Canadian human rights legislation. Creative complainants have sometimes been successful in arguing for a broad definition of an existing ground. For example, in some jurisdictions, “gender” includes transgendered persons. Mr. Johnson’s human rights complaint was heard by the Canadian Transportation Agency (“Agency”), which has jurisdiction under Part V of the Canada Transportation Act, SC 1996, c 10 (CTA) to determine whether people with disabilities experience undue obstacles to their mobility when using the federal transportation network. He complained that Air Canada had charged extra

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fees for economy class seats that provided extra leg room. He Unlike the Canadian Charter of argued that, due to his height, he could not sit in a regular seat Rights and Freedoms, s. 15(1), without endangering his health due to restricted circulation in his which allows for discrimination legs from the cramped seating. Because size was not a recognized suits based both on grounds ground of discrimination, Mr. Johnson argued that he was a listed (e.g., race, sex, age) and “person with a disability” under Part V of the CTA. (Part V of the CTA is considered to be human rights legislation.) analogous grounds (e.g., sexual Subsection 172(1) of the CTA provides: orientation), human rights 172. (1) The Agency may, on application, inquire into a statutes have closed grounds. matter in relation to which a regulation could be made If a ground is not listed in the under subsection 170(1), regardless of whether such a legislation, it is not covered. regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities. In order to determine whether a person faces an undue obstacle to his or her mobility, the Agency must first establish that the complainant is a person with a disability. The Agency relies on the World Health Organization’s International Classification of Functioning, Disability and Health (ICF) in order to classify a condition as a disability. In Decision No. 2-AT-2102, the Agency notes that in order to be found to be a person with a disability under Part V of the CTA, the applicant must demonstrate that they: 1. have an impairment; 2. experience an activity limitation that is significant enough to result in an inherent difficulty in executing a task or action; and 3. experience a participation restriction in the context of the federal transportation network. The ICF defines an impairment as “a loss or abnormality in body structure or physiological function (including mental functions).” Further “abnormality” refers to “a significant variation from established statistical norms (i.e., as a deviation from a population mean within measured standard norms).” Mr. Johnson’s physician had provided a note that indicated Mr. Johnson was 202 cm (6 feet, 7.5 inches), the length from the knee to his back is 70 cm (27.6 inches) and the length from his knee to the floor was 69 cm (27.2 inches). The note also indicated that Mr. Johnson’s risk of deep venous thrombosis arose from his inability to move in his seat and severe pressure on his knees and legs. The Agency determined that Mr. Johnson had not provided evidence to demonstrate either a loss or abnormality in body structure or physiological function associated with his height. Further, any evidence of abnormality of the body would have to vary significantly from established statistical norms. Because he had not established that he had an impairment, the Agency did not have to examine whether Mr. Johnson had an activity limitation or a participation restriction in the context of air travel.

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Because the legislation did not recognize “size” or “height” Because the legislation did not as a ground of discrimination, Mr. Johnson tried to fit his height recognize “size” or “height” as a into the ground of “disability”. In this case, he was not successful. ground of discrimination, Mr. Others have been able to argue that obesity (or a very large sized body) was a disability for the purposes of the CTA (see: McKayJohnson tried to fit his height into Panos v Air Canada, 2006 FCA 8). the ground of “disability”. In this Of course, Mr. Johnson’s situation could have been entirely case, he was not successful. different if human rights legislation recognized discrimination on the basis of size or height. There have been studies that indicate the existence of discrimination against people on the basis of their height (particularly short men) (See: Meg Donahue, "Why Tall People Make More Money" online: www.cnn.com/2007/US/Careers/02/02/cb.tall.people/index.html). And, over the years we have seen the addition of grounds of discrimination such as disability, marital status, sexual orientation, family status, source of income and the like. There are other grounds that have been added in only some jurisdictions, such as criminal record and political opinion. One can think of others that perhaps should be added, such as social status. All of these can be bases for discrimination, where people suffer for having attributes that have nothing to do with their ability to perform a job or receive a service. Height could also be added as a ground. If it were, the argument could be made that a person’s height would need to be accommodated by more leg room (in the case of air transportation). First, however, the legislatures and Parliament need to be persuaded that size should be covered by human rights legislation.

Linda McKay-Panos, BEd. JD, LLM is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.

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Follow-up on Famous Canadian Cases

March/April 2012

This feature profiles a famous Canadian case from the past that holds considerable public and human interest and explains what became of the parties and why it matters today.

Whatever Happened To… The Irwin Toy Company Peter Bowal, Omar Khan and Karen Perry

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his is the story of how Canada’s oldest toy company famously challenged advertizing restrictions in the courts shortly even before the arrival of the Charter of Rights and Freedoms. Ultimately, in a Charter case, several new and enduring legal principles on corporate expression rights emerged, and Saturday morning children’s television ads were changed forever in Quebec. But this well-known Canadian independent, family-owned toy distributor and manufacturer would not itself survive.

Corporate History Irwin Toy began in 1926 as an importer and distributor of dry goods and clothing – effectively a wholesale souvenir shop – operating out of Samuel and Beatrice Irwin’s home. The business eventually moved to a warehouse in the west end of Toronto. When Samuel’s two sons, Arnold and Mac, took over, they added wholesale toy sales. By the 1950s, Irwin Toy sold many traditional toys and sporting goods. The business was incorporated in 1954, and remained a completely familyowned business until 1969, when it went public. Irwin’s profits were mostly generated from licensing and distributing other companies’ toys, which meant Irwin was the distributor of most of the popular toys in Canada until the 1990s. American toy companies like Kenner and Parker had wanted their toys sold in Canada, but the size of the size of the market and tariffs could not justify setting up their own plants or sales offices here.

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The company expanded quickly through the 1970s and early Irwin Toy was responsible for 1980s, reaching annual gross revenues of C$120 million by 1983. Canadian distribution of many Irwin Toy was responsible for Canadian distribution of many wellwell-known toys, including the Hula known toys, including the Hula Hoop, the Atari Video computer, Hoop, the Atari Video computer, Care Bears, Slinky, Easy Bake Ovens, Frisbee, Sega video games, Care Bears, Slinky, Easy Bake Ovens, and Star Wars action figures. Throughout this period of growth and success, the Irwin family retained a majority stake in the company, Frisbee, Sega video games, and Star as share ownership was passed down through three generations. Wars action figures. Some 350 employees worked at their downtown Toronto factory. Irwin Toy Limited was known for its “junior shareholders”, since many parents bought shares of the company for their children. As a result, some shareholder meetings had a large contingent of children in attendance.

Quebec’s Consumer Protection Act The Quebec legislature considered children’s TV as a particularly dangerous thing because children cannot resist the persuasive forces of television advertizing. The concern addressed by the legislation was really the pressure the children might exert against their parents to buy advertized toys. Section 248 of the Act read, “no person may make use of commercial advertising directed at persons under thirteen years of age.” That prohibition was focused on television ads. Irwin Toy saw this as a threat to its toy business which sold many toys to children in Quebec. It could still advertize children’s toys to older siblings and parents but this was not nearly as successful.

Irwin Toy Goes to Court In late 1980 Irwin Toy advertized toys to children under 13 and was charged with 188 violations of the Act. Irwin claimed that the province cannot regulate broadcasting in this way because broadcasting was exclusively federal jurisdiction. If it could do so, Irwin argued in the alternative, this advertizing ban violated their rights to corporate expression under the Quebec Charter of Human Rights and Freedoms. Irwin lost at the first instance but in 1982 the Canadian Charter of Rights was enacted and Irwin incorporated this new constitutional rights document into its case at the Supreme Court of Canada almost a decade after the charges were laid. In 1989, Irwin Toy’s case was one of the first Charter freedom of expression cases to be heard by the Supreme Court of Canada. By only a three to two majority, the judges in the end upheld the Quebec legislation and found Irwin Toy subject to the advertizing restrictions. The legislation was found to be of general application in relation to consumer protection and not a “colourable” attempt to legislate broadcasting, which is under the purview of the federal government. The Act applies to advertizers, not to broadcasters. The Government of Quebec had indicated that this legislation was to override the Canadian Charter of Rights, but that override had lapsed in June 1987. Accordingly, the Charter applied to protect Irwin when the case was heard in 1989.

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The Supreme Court of Canada developed an analytical In 1989, Irwin Toy’s case was one framework for freedom of expression cases. of the first Charter freedom of • First, the court determines if the activity comes within expression cases to be heard by the expression protected by the Charter. Expression the Supreme Court of Canada. pursuing truth, participation in the community, individual self-fulfillment and human flourishing are protected. Expression which does not convey meaning or content, or only a violent meaning or expression, is not protected.  • Second, the court determines whether the government action (i.e. this legislation) restricted Irwin’s freedom of expression.  The Quebec government’s purpose in enacting section 248 of the Consumer Protection Act was to prohibit content of expression in the name of protecting children. The question then turned to whether children under 13 could make choices and distinctions about products advertised. If not, is the restrictive legislation justified? The Court said children are not as equipped as adults to evaluate the persuasive force of advertising and it can easily manipulate them. It is a legitimate pressing and substantial public policy concern to protect all children in this age group. This advertizing ban rationally connects to protecting children and amounted to a minimal impairment of Irwin Toy’s free expression rights. The two dissenting judges disagreed on this point only. They thought insufficient risk to children was shown to exist from this advertizing and a total television advertizing prohibition over an arbitrary age range made no attempt to achieve proportionality. Irwin had also argued for a remedy under section 7 of the Charter. The Court dismissed this ground by concluding that only individuals, and not corporations, can assert section 7 rights.  The opening word “everyone,” read in light of the rest of the section, excludes corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and includes only human beings. Irwin Toy was bound by the Quebec legislation not to advertize to children under 13 years of age.

What Happened to Irwin Toy? The Supreme Court of Canada decision and the validity of the Quebec legislation would themselves have little impact on sales. The changing realities of the industry and trade proved the biggest challenge to Irwin. Beginning in the mid-1980s, with the decline of Atari and the loss of U.S. toy company distributorships, Irwin’s revenues took a serious hit. Major toy companies like Hasbro and Mattel bought up smaller companies that had licensed to Irwin. The Free Trade Agreement, and later NAFTA, made it easier for American companies to do business directly in Canada. Irwin regained most of its ground with more in-house product development and a new contract with Sega Japan.

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The business struggled financially as it rounded the millennium. It was sold in 2001 to a private investment group in Toronto for approximately $55 million. Eighteen months later, the new Irwin Toy owners declared bankruptcy and liquidated after 76 years of operations. The original factory was converted to loft condominiums. In 2003, the Irwin Toy name, patents and some products were re-purchased by George and Peter Irwin and continued as Itoys Inc. That company appears to have changed to an Ontario numbered company which filed bankruptcy papers in late 2010. Thus, a Canadian corporate pioneer has come full circle, interrupted by a famous judicial decision that continues to live on.

March/April 2012

Irwin had also argued for a remedy under section 7 of the Charter. The Court dismissed this ground by concluding that only individuals, and not corporations, can assert section 7 rights. The opening word “everyone,” read in light of the rest of the section, excludes corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and includes only human beings.

Peter Bowal is a Professor of Law and Karen Perry is a third-year student at the Haskayne School of Business at the University of Calgary in Calgary, Alberta. Omar Khan, BSc, BComm, is an MD student at the University of Calgary in Calgary, Alberta.

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Family Law

March/April 2012

“If I knew then what I know now…” Varying Spousal Support

Rosemarie Boll

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hen L.M.P. (I will call her Lisa) married L.S. (I will call him Leonard) in 1988, she was a 23-year-old cosmetics company representative and he was a 27-year-old lawyer. A year later, she was diagnosed with multiple sclerosis. She stopped working and began receiving permanent disability benefits. When they divorced in 2003, they had two children, Lisa was still on disability and Leonard earned about $165,000 per year. They signed an Agreement on spousal support – Leonard would pay Lisa $3,688 per month with no set time limit. This Agreement later became part of a court order. Four years later Lisa wanted more child support, and Leonard cross-applied to reduce spousal support. When Leonard succeeded, Lisa appealed to the Supreme Court of Canada. (SCC)1 Meanwhile, another case was winding its way through court. R. P. (‘Ruth’) married R.C. (‘Robert’) in 1958. Ruth was 10 years older than Robert, and like most wives of the time, Ruth stayed

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home and raised two children. They divorced 25 years later, and A spouse can apply for a variation Robert didn’t oppose an order to pay monthly child and spousal only when there has been a support totalling about $2,000. When the kids moved out, Ruth material change in one of their still needed the money – it was clear she could never earn enough circumstances since the prior to support herself. The court granted her application for more order. Not every change is a money, but Robert was dissatisfied and appealed to the Supreme 2 Court of Canada. material change. The test is: if When two cases have different facts but raise the same legal we knew then what we know issues, the SCC regularly hears them together. Here, the common now, would the order have been issue was the interpretation of Section 17 of the Divorce Act. different? Section 17 has two parts – when is a spouse entitled to apply for a variation? And how does the court decide what the new order should say? The SCC also had to decide if there was a difference between varying a ‘regular’ order, and varying an order based on an Agreement.

1. Entitlement to apply – Section 17(4.1) Factors A spouse can apply for a variation only when there has been a material change in one of their circumstances since the prior order. Not every change is a material change. The test is: if we knew then what we know now, would the order have been different?

2. What should the new order say? – Section 17(7) Objectives The variation order should: (a) recognize any economic advantages or disadvantages arising from the marriage or its breakdown; (b) apportion the financial consequences arising from the care of any child of the marriage; (c) relieve any economic hardship arising from the marriage breakdown; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable time.

3. The Result Both husbands lost in the Supreme Court of Canada.

4. Insufficient Evidence Neither husband could meet the Section 17(4.1) requirement – both of them lacked the evidence needed to prove that there had been a material change in circumstances. Leonard and Lisa – When they divorced, Leonard agreed that his wife had MS and couldn’t work. He had helped her get disability, pension, and tax benefits. When he applied to vary the order,

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he didn’t produce any evidence that showed that Lisa’s condition it was common knowledge that had improved. There was no change in her circumstances, let alone stock markets went down in a material one. Leonard couldn’t turn around five years later and 2008, but Robert didn’t prove that simply change his mind about Lisa’s employability. he had sold any investments or Rita and Robert – Robert’s application was based on three changes in his own circumstances. He had retired several years actually lost any money. Markets earlier, the downturn in the economy had had a negative impact on go down, markets go up. Market his investments, and his son from a second marriage needed money fluctuations mean nothing unless to go to university. The SCC found two fatal flaws in Robert’s case. they have a concrete and lasting First, he didn’t produce any evidence about his finances at the time impact on an applicant’s finances. of the initial order. It’s impossible to measure a change without knowing the starting point. Second, it was common knowledge that stock markets went down in 2008, but Robert didn’t prove that he had sold any investments or actually lost any money. Markets go down, markets go up. Market fluctuations mean nothing unless they have a concrete and lasting impact on an applicant’s finances.

5. The Law The majority of the SCC judges (two disagreed) said initial applications (Section 15.2(4) (c)) are different from variation applications (Section 17). On an initial application, the judge must consider any Agreement the parties reached. On a variation application, there is only one factor – material change. Whether or not a prior Agreement existed is irrelevant. In other words, the same standard applies to all variation cases, no matter how the initial order came about.

Conclusion Evidence is key in every step in a divorce. Initial orders must be founded on detailed, unambiguous evidence. Variation applications need solid, reliable evidence to prove a material change in circumstances. Be thorough and precise, or be prepared to lose.

Notes 1 L.M.P. v. L.S., 2011 SCC 64 2 R.P. v. R.C., 2011 SCC 65

Rosemarie Boll is Staff Counsel with the Family Law Office of Legal Aid Alberta in Edmonton, Alberta.

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Online Law

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Free to Take a Stand

Marilyn Doyle Fundamental: a foundation or basis; underlying. Freedom: the power to determine action without restraint. Conscience: inner sense of what is right or wrong; a set of ethical and moral principles. Freedom of conscience and religion is the first of the fundamental freedoms named in Section 2 of the Canadian Charter of Rights and Freedoms. The fundamental nature of this freedom is affirmed by the fact that it is included in so many other human rights documents, for example: • Article 18, Universal Declaration of Human Rights (1948) www.un.org/en/documents/udhr • Article 9, European Convention on Human Rights (1953) www.hri.org/docs/ECHR50.html • Article 18, International Covenant on Civil and Political Rights (1976) www2.ohchr.org/english/law/ccpr.htm • Article 12, American Convention on Human Rights (1978) www.oas.org/juridico/english/treaties/b-32.html • Article 8, African Charter on Human and Peoples’ Rights (1981) www.achpr.org/english/_info/charter_en.html • Articles 1 & 6, UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981) www2.ohchr.org/english/law/religion.htm

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• Article 14, Convention on the Rights of the Child (1990) www2.ohchr.org/english/law/crc.htm • Article 10, Charter of Fundamental Rights of the European Union (2000) www.europarl.europa.eu/charter/pdf/text_en.pdf “It is a difficult concept to study because of its abstract nature, but Freedom of Conscience is without equal in a democratic society as all other rights flow from it. The idea of choice is born out of it. A free conscience is, indeed, the beginning of freedom” says Spirit of Democracy.com (www.unb.ca/democracy/English/Ideas/Freedoms/Conscience/Conscience.html). The Spirit of Democracy Project is an educational and not-for profit project sponsored by Canadian International Development Agency, the Faculty of Education at the University of New Brunswick and by partners at the Russian Association for Civic Education and Uchitelskaya Gazeta. Their section about Freedom of Conscience provides some thought-provoking reflections on what it might mean to act on one’s conscience and includes study suggestions for teachers and students. Also useful for students and teachers is the United Nations hosted site, CyberSchoolBus: Interactive Declaration. This resource provides an explanation of each Universal Declaration article with definitions, plain language and activities to help students understand and interpret the language of this critical UN document. Article 18 on freedom of conscience can be found here: www.un.org/cyberschoolbus/humanrights/declaration/18.asp The Spirit of Democracy Project Because freedom of conscience is concerned with one’s ethical and moral principles, it is generally paired with freedom of religion. is an educational and notThe University of Minnesota Human Rights Resource Centre for profit project sponsored provides a series of comprehensive and thought-provoking lessons by Canadian International about the human right to freedom of religion or belief without Development Agency, the surveying world religions or endorsing any particular belief. “Lifting Faculty of Education at the the Spirit” relates the worship, observances, practices, and teachings of all religions and beliefs to fundamental human rights principles. University of New Brunswick It provides background information, ideas for taking action, and and by partners at the Russian interactive exercises. Designed for use in secondary classrooms, Association for Civic Education religious institutions, and youth advocacy organizations around the and Uchitelskaya Gazeta. world, both the content and organization of “Lifting the Spirit” aim Their section about Freedom to be adaptable to many different national and cultural settings. (www1.umn.edu/humanrts/edumat/hreduseries/TB5/lifting.html) of Conscience provides some Others have argued that there are some subtle but significant thought-provoking reflections distinctions between freedom of conscience and freedom of religion. on what it might mean to This blog post from “The Court”, an online resource for debate act on one’s conscience and & data about the Supreme Court of Canada, discusses that topic: includes study suggestions for Freedom of Conscience: Our Unexplored Charter Guarantee (www.thecourt. teachers and students. ca/2009/08/26/freedom-of-conscience-our-untold-charter-guarantee)

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Human Rights in the Administration of Justice: A Manual on Because freedom of conscience is Human Rights for Judges, Prosecutors and Lawyers is a publication concerned with one’s ethical and from the United Nations Office of the High Commissioner for moral principles, it is generally Human Rights. Despite the erudite audience listed in the title, it is paired with freedom of religion. quite readable. Chapter 12 – "Some Other Key Rights: Freedom of The University of Minnesota Thought, Conscience, Religion, Opinion, Expression, Association and Assembly" can be found at: www.ohchr.org/Documents/Publications/ Human Rights Resource Centre training9chapter12en.pdf provides a series of comprehensive Those who are academically inclined may be interested in the and thought-provoking lessons Strasbourg Consortium on Freedom of Conscience and Religion. about the human right to freedom It aims to provide a forum where high-level academic analysis can of religion or belief without be made available on an expedited electronic basis to enrich the surveying world religions or materials that the European Court of Human Rights and other international tribunals can draw on when addressing issues of endorsing any particular belief. freedom of religion or belief. (www.strasbourgconsortium.org) Freedom of conscience is not just an interesting topic of study. It is also a ground for action. Freedom Now (www.freedom-now.org) is a U.S.-based nonprofit, non-governmental, and non-partisan organization that works to free individual prisoners of conscience through focused legal, political and public relations advocacy efforts. Amnesty International (www.amnesty.org) is a global movement of more than three million supporters, members and activists in more than 150 countries and territories who campaign to end grave abuses of human rights. Human Rights Watch (www.hrw.org) is known for its accurate fact-finding, impartial reporting, effective use of media, and targeted advocacy, often in partnership with local human rights groups. Each year, Human Rights Watch publishes more than 100 reports and briefings on human rights conditions in some 90 countries. And here at home, the Canadian Civil Liberties Association, Fundamental Freedoms Program (http://ccla.org/our-work/fundamental-freedoms) aims to promote, protect and preserve these rights and freedoms speaking out on such issues as censorship, hate speech, religion in the schools, and the right to protest. Those who would like to know how freedom of conscience and freedom of religion are playing out in world events may be interested to follow the International Religious Freedom Newsletter which compiles media coverage of top religious freedom law headlines from around the globe. The newsletter (now in blog format) focuses on state action and inaction, rather than just religious persecution or discrimination. It covers legal news affecting people of all faiths. (http://becketinternational.wordpress.com/about-the-irfn/) Where do you stand on your freedom to take a stand?

Marilyn Doyle is a library technician with the Centre for Public Legal Education Alberta in Edmonton.

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Not-for-Profit Law

March/April 2012

Transparency for All?

Peter Broder

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tarting this past January, the House of Commons Standing Committee of Finance began a series of hearings on tax incentives for charitable donations. Although mandated specifically to deal with donation incentives, the Committee delved into a number of other concerns with charity operations. Among the topics that came up for discussion were the political activities of registered charities, the rules around foreign funding, administrative costs, salary disclosure requirements and other obligations with respect to public reporting to promote transparency and accountability. Interestingly, several Committee members made inquiries not just about disclosure of charities’ internal spending, but about amounts that groups devoted to services that were contracted out. One Committee member commented that improper payments could as easily occur through outside contracts as through internal spending. Charities’ dealings with third party for-profit entities is an area that hasn’t seen much regulatory attention in the past, except in the context of tax credit donation scams.

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Whether these questions truly represent a move away from Those organizations that benefit the past focus on the internal workings of charities remains to be from sponsorships or unreceipted seen, but it does point to some areas that are little explored in the in-kind support from for-profit frequent calls for charities to be more transparent and accountable. firms are able to understate their In this context, some consideration might be given not spending on administration or just to payments made by the charity to third parties, but also to other dealings that might occur between for-profits and charities. fundraising and contribute to In the ubiquitous discussion of the effectiveness and efficiency of unrealistic public expectations charities, these arrangements often distort the reported spending on around what charities ought administrative or fundraising by groups. reasonably to be spending on Those organizations that benefit from sponsorships or these functions. unreceipted in-kind support from for-profit firms are able to understate their spending on administration or fundraising and contribute to unrealistic public expectations around what charities ought reasonably to be spending on these functions. Until the repeal of the disbursement quota tied to receipted revenue, groups that could generate sponsorships, negotiate cause-related marketing agreements or other partnerships with businesses (for example, where a business agrees to underwrite some or all of a charity’s administrative costs) enjoyed a huge advantage in their spending discretion. Removal of the receipted revenue spending aspect of the disbursement quota has not, however, eliminated the practice of some organizations continuing to promote the fiction that they operate without administrative costs. Unfortunately, a number of the groups that most egregiously fudge their numbers are those prone to call out other charities for their spending practices. (The groups themselves may not be entirely culpable in this regard, since standard accounting rules don’t compel disclosure of some types of these charity-business arrangements.) It is important to be wary of over-regulation here. An onerous reporting requirement could be a disincentive for corporations to sponsor or support charities, and there are legitimate privacy and policy considerations around transactions such as a charity retaining a law firm. That said, the current practice of heavy disclosure around internal spending with little attention paid to dealings with third parties has the potential to distort reporting and creates an unlevel playing field. In the United States, charities are required to report their top five payments to independent contractors that received more than $100,000 in compensation. Requiring disclosure around sponsorship, underwriting or fundraising arrangements with for-profit entities would create even more transparency. Looking at this issue more broadly, one reason given for charities needing to be publicly accountable for their spending is the government contribution to receipted giving, since the government foregoes tax revenue on amounts donated. This rationale for transparency is in line with the requirement in some jurisdictions that employees of government, or of agencies receiving government funding, who receive compensation exceeding a specified threshold, are subject to having their salaries disclosed.

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Not-for-Profit Law

March/April 2012

That said, however, it should be remarked that the Scientific Research and Experimental Development tax credit represents a roughly equivalent tax expenditure to the Charitable Donation tax credit and other incentives for charitable giving, without any comparable disclosure being required by recipients benefiting from that measure. Without gainsaying the value of charities having to be transparent about their dealings with for-profit corporations, it is worth asking why they should be treated differently. This highlights the need for parliamentarians, as they consider the transparency of registered charities, to be mindful of the discrepancy in how charities are treated in comparison to for-profit entities. One telling example of this is found in Alberta. Here, the childcare sector is composed of charities, non-profit organization and for-profit businesses. These organizations are subject to quite different disclosure requirements. No matter how they are structured, childcare providers are eligible for a provincially-funded wage enhancement for staff members with It is important to be wary of specified credentials. While employees working for a registered over-regulation here. An onerous charity are subject to the salary and other disclosure obligations reporting requirement could be under Canada Revenue Agency rules (which, among other things, require the salary ranges of the top ten employees to be revealed), a disincentive for corporations their counterparts in the private sector are not required to publicly to sponsor or support charities, report their remuneration. Likewise, their employers get to keep and there are legitimate privacy their costs confidential. and policy considerations around Private sector firms have long fended off calls for greater transactions such as a charity transparency by citing the risk of loss of competitive advantage if other companies gain access to detailed information on their retaining a law firm. operations. This argument is hard to sustain if charities – which often operate in a highly competitive environment – are forced to disclose their spending. So, as well as reporting on charities dealings with for-profits, shouldn’t private sector entities that get government dollars face similar obligations to release their costs? If transparency is good for some, shouldn’t it be good for all?

Peter Broder is Policy Analyst and General Counsel at The Muttart Foundation in Edmonton. The views expressed do not necessarily reflect those of the Foundation.

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es Employe only!

Employment Law

March/April 2012

Union and Disunion – Solidarity Forever?

Peter Bowal and Andrew McLeod

Introduction The power of a labour union essentially resides in the threat and realization of collective action against an employer. As the saying goes, which could have had unions in mind, ‘we hang together or we hang alone.’ Strike-breakers crossing picket lines during a strike impede the union’s ability to bargain effectively with the employer. Accordingly, unions need to enforce solidarity among their membership in order to be effective. Dissident employees might not be sympathetic to the unions to which they belong, or to the decisions of their union leaders and peers. When they are faced with having to choose between indefinite subsistence strike pay and remaining on the job for full pay and benefits, some workers will inevitably be inclined to continue to work. This means defying the union, crossing the picket line – the symbolic Rubicon – and breaking solidarity with their co-workers. Dissidents are ignobly labeled ‘scabs’ and they are routinely threatened, humiliated and unforgiven for their betrayal of the collective cause.

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Picket lines need to be powered with strikers. If a sufficient Workers who cross picket lines number of employees cross the picket line, the strike itself may be hurt their striking colleagues’ prolonged or fail. Strike-breakers not only interfere with strikes, but cause by sending the message their defiance embarrasses unions and their obedient members. to the employer that they find It is not enough for unions to merely hope that this collective the pay, benefits and working action will materialize during strikes, those rare instances in which it is required. Unions seek to engineer en masse obedience conditions acceptable. by inserting in their rules union solidarity clauses backed up by occasionally harsh penalties for non-compliance. Workers who cross picket lines hurt their striking colleagues’ cause by sending the message to the employer that they find the pay, benefits and working conditions acceptable. Penalty clauses may deter members from breaking strike out of fear of the financial consequences. The revenue they generate can provide modest restitution to the union and its members who may have suffered from the counter-productive behaviour of the strike-breakers. Are these penalties legally enforceable?

Birch and Luberti Two Canada Revenue Agency workers, union members Birch and Luberti, crossed the picket line during a legal strike in 2004. The union’s constitution prescribed two responses to members who do this: • a one-year suspension of membership for each day the member crossed the picket line (affiliation discipline), and • a “fine” equal to the member’s gross pay for each day worked (financial discipline). This last assessment is especially onerous since it requires the member to pay the union more than the member has actually taken home from crossing the picket line. The amount levied against these two workers in this case by their union was $476.75 each. The primary issue in this case was whether the union would enforce this financial penalty. The two workers refused to pay the penalty, so the union brought an action in Ontario small claims court to collect it. The case came to the Ontario Court of Appeal in late 2008. When one joins a union, a contractual relationship arises between the worker and the trade union. In Ontario, unlike in Saskatchewan under its Trade Union Act, penalties for crossing picket lines were not specifically authorized (nor prohibited) by legislation. The majority of the Ontario Court of Appeal focused on whether the penalty clause was so unconscionable as to be unenforceable. It was not the union, but the union membership, who had suffered the damages. While the penalty sum seemed “trivial” overall, it exceeded the take-home pay of each worker and constituted excessive and substantially unfair discipline of their conduct. The affiliation penalty, a one-year suspension of membership for each day the picket line was crossed was found to be a “significant penalty in itself.”

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The dissenting judge concluded that the penalty clause was not unconscionable. He said the union had not taken advantage of its unequal bargaining position because the union members were not locked into the contract. Employees, said the dissenting judge, “could not choose to enjoy the benefits of membership without being subject to its obligations.” The Supreme Court of Canada refused to grant leave to appeal.

Implications

While the penalty sum seemed “trivial” overall, it exceeded the take-home pay of each worker and constituted excessive and substantially unfair discipline of their conduct. The affiliation penalty, a one-year suspension of membership for each day the picket line was crossed was found to be a “significant penalty in itself.”

The Birch case serves as a recent binding precedent in Ontario and a persuasive ruling across the rest of the country where similar union discipline clauses are in play. The union will have to address concerns that its internal discipline may be viewed as unconscionable, both the relative bargaining positions of the parties and the quantum of the fine itself. Under both prongs of the unconscionability analysis, the discipline must not be ‘substantially unfair.’ Indeed, any financial penalty in addition to membership suspension (not to mention the ostracism one faces for crossing picket lines) might be considered unreasonable. Other courts may approach these penalty clauses with a simple rule against enforcing penalty clauses. If the financial penalty is the only sanction for crossing the picket line, the union might consider limiting the amount to the net income earned by the dissident member while defying the union. Absent other penalties, this renders strike-breaking a balanced choice for the employee, rather than a burden. If many union members insist on crossing the picket line to work, one might question whether the pay, benefits or working conditions actually need improvement as determined by the union calling for the strike. Internal union discipline and the threat of penalties alone are not adequate practical grounds to support and enforce improvident decision-making on the part of unions. The Birch decision is consistent with other earlier judicial decisions. Unions continue to struggle to financially penalize their members who cross picket lines. But all is not lost. By refusing to enforce unconscionable penalties, the courts force unions to do a better job for their members. If unions earn the compliance of their membership without resorting to onerous financial penalties, decisions such as Birch serve to enhance workers’ rights and, ultimately, make unions more responsive and more relevant.

Peter Bowal is a Professor of Law at the Haskayne School of Business in Calgary, Alberta, and Andrew McLeod is a first-year law student at the University of Manitoba in Winnipeg, Manitoba.

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Law and Literature

March/April 2012

Resistance to Dictatorship and Piercing the Immunity of the General Robert Normey

A

look at Carmen Aguirre’s Something Fierce: Memoirs of A Revolutionary Daughter (2011); Heraldo Mendoza’s The Dictator’s Shadow: Life Under Augusto Pinochet (2008) There was a 9/11 before 9/11. It was at least as momentous to the people of Chile as the one that is more familiar to North Americans. On September 11, 1973 the democratic dreams of all Chileans of goodwill were brutally destroyed when a coup d’etat overthrew the democratically elected government of the democratic socialist Salvador Allende. In the nightmare that unfolded, with the savage imposition of military misrule under General Augusto Pinochet, it is estimated that at least 3000 people were murdered or “disappeared” and at least 30,000 were tortured (see the Valech Report, on torture and political imprisonment). Pinochet’s subsequent 17-year rule was marked by suspension of civil liberties, an enormous number of detentions without trial and the almost total curtailment of freedom of speech and association. At least 1000 books were banned outright. The illegality and contempt for the rule of law even extended beyond Chile’s borders, as various leftists and officials from the Allende government were hunted down and murdered as part of Operation Condor. At the time of his death in 2006, Pinochet faced more than 200 criminal complaints and many of his subordinates had been convicted of horrific crimes. With the films The Battle of Chile and Missing forever etched in my mind and the Clash’s song Washington Bullets a favorite in my iPod collection – “Please remember Victor Jara in the Santiago Stadium” – I was prepared to be shocked all over again by watching the 2008 documentary film

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Law and Literature

March/April 2012

The Judge and The General. That film depicts the efforts to successfully prosecute General Pinochet and asks how a society and a legal system confronts the dirty deeds of a once-powerful political leader who continues to enjoy considerable support. This year I planned to add to my understanding of that seminal event in the Americas, the overthrow of Allende and its aftermath, by reading Carmen Aguirre’s memoir, Something Fierce. I had not got around to reading it when the Canada Reads Contest for 2011 took place on CBC Radio and TV. Those of you who follow books in Canada will know of the controversies that erupted when one panelist weighed in with her inflammatory remarks about authors of two of the books in contention. For our purposes, I would just like to touch on the comment that Carmen Aguirre is Of course, proffering such a a “bloody terrorist.” When asked whether she considered Nelson view in the midst of the chatty, Mandela a terrorist as well, the panelist replied in the affirmative. I lightweight but often pleasant note in the latter regard that she echoes the views of the long-time federal Conservative MP Rob Anders, who notoriously dissented enough deliberations of Canada from the vote in the House of Commons to grant the great Nelson Reads is like lobbing a live Mandela honourary citizenship. The South African leader, who has grenade into a War of 1812 resurely been instrumental in saving many lives and transforming enactment for tourists. his country into a democratic state, was an eminently suitable candidate for the Nobel Peace Prize, which he won in 1993. Of course, proffering such a view in the midst of the chatty, lightweight but often pleasant enough deliberations of Canada Reads is like lobbing a live grenade into a War of 1812 re-enactment for tourists. (I pause here to ponder the question as to why, if populism is the goal, panelists must be celebrities?) In a proper debate on such a subject, someone claiming that Carmen Aguirre or some of the other courageous exiled Chileans hoped to participate in the resistance to the gruesome Pinochet regime, would have to explain herself and put forward a theory on what resistance, if any, is considered acceptable. Terrorism certainly applies as a description of the situation in Chile for the 17-year duration of the Pinochet regime, as the illegitimate military government that toppled the elected government created a state of terror that involved massive human rights abuses. Individuals had to possess considerable courage to attempt any peaceful protest, particularly in the first years after the fall, because beatings and arrests leading to torture were not unusual. Thousands of Chileans were forced into exile. The peaceful civil disobedience campaigns that Mahatma Gandhi conducted against the British colonizers in India could hardly be expected, in the Chilean context, to lead to anything but injury and death. In fact, I asked Carmen Aguirre about how Mahatma Gandhi might have fared under Pinochet. She replied by quoting him, from his book Nonviolence in War and Peace: “ … where there is only a choice between cowardice and violence, I would advise violence… I would rather have India resort to arms in defence of her honour than that she would, in a cowardly manner, become or remain a helpless witness to her own dishonour.” Aguirre adds that many people from all walks of life resisted Pinochet. For Canadians to understand the context in which she and many others engaged in resistance, she suggests we imagine the following:

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March/April 2012

The U.S. military (including the army, the navy, the local and The difficult question, though, federal police forces, the FBI and CIA) is brought by the elite of of what strategy of resistance the country and a foreign superpower willing to offer logistical and to pursue against the military financial support, and overthrows its own government. It bombs dictatorship is not one that the White House, killing the president and other members of the someone looking on from the government. It then institutes a murderous, brutal regime… The constitution is thrown out, a state of emergency, curfew and martial outside, such as Canadians other law is instituted, between 50 to 100,000 people are killed, 700,000 than those with Chilean roots, can are tortured, 20 million are exiled and a group of economists are easily assess. brought in who drive the economy into the worst collapse in its history within a couple of years. This is exactly what happened in Chile. She adds that she has only changed the number of casualties and exiles to the per capita equivalent. (One might perhaps call the death of Allende one of assisted suicide in the context of a brave leader intending to fight valiantly to the end for his country’s ideals, notwithstanding the desertion of the military to the generals who were intent on a coup d’etat. Tapes have been located in which we hear Pinochet indicating that while an offer of a plane to take Allende to another country was to be made upon receiving word of unconditional surrender, “the plane falls in midflight.”) Chileans inside Chile faced a somewhat different reality than did those in exile and many chose, eventually, to engage in forms of resistance that did not involve arms. The difficult question, though, of what strategy of resistance to pursue against the military dictatorship is not one that someone looking on from the outside, such as Canadians other than those with Chilean roots, can easily assess. It is a highly dubious proposition in any event that individuals like Carmen engaged in terrorism by bringing “goods” across the border and into Chile. It was only because of such courageous actions of resistance by those residing inside and outside Chile that the dictatorship ended as soon as it did. There are many wonderful parts making up Something Fierce. As Aguirre is a playwright and an actor in Vancouver, it is no great surprise that this, her first book, is filled with many dramatic moments in which the tension just drips from the page. We see the world through the young Carmen’s eyes, as her mother and stepfather take her and her sister away from their secure and somewhat comfortable but perhaps unexciting home in Vancouver, back into a Latin America fraught with danger and violence. But on the plus side, the young Carmen is happy to encounter once again the “human heat” that animates the passionate, at times exotic, world of the countries she and her parents come to reside in: Peru in the grip of the war with Shining Path guerillas; Bolivia under the latest dictator; and Argentina in the desultory and still-dangerous time after the war between Britain and the Argentine generals. There are deft descriptions of the poor and wretched as well as the more affluent members of these countries. Indeed, after the overthrow of democracy in Chile in 1973, the U.S. under President Nixon and Secretary of State Kissinger backed military or civilian dictators

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throughout Central and Latin America, while just two countries – Venezuela and Costa Rica – practiced free elections. Aguirre is adept at weaving together the disparate elements of the complicated lives of the family members as they establish themselves in the different “beachheads” for revolution through subterfuge. They know that discovery of their true identity in the police states or quasi-police states they move through by stealth will lead to a handover to the not-so-tender mercies of the Pinochet gang. Despite the considerable danger, there remains time for immersion in local cultural activities and the plugging-in to American pop culture, such as Michael Jackson’s Thriller, John Travolta and Olivia Newton John in Grease and jeans from Carmen’s father. A profusion of love affairs reveal that the heart of the young revolutionary isn’t always primly and puritanically devoted to the cause of social justice. The portraits of Bob, the gringo Canadian willing to come to fight for justice in foreign lands and of his hippy, Aguirre is adept at weaving unconventional feminist mother – Mami – are deeply affecting. together the disparate elements We see Bob descending into helpless rage at the frustrating of the complicated lives of the circumstances he finds himself in, unable to use his energies family members as they establish productively for long stretches. We see Carmen experience what themselves in the different she calls “The Terror”, reliving in her mind the traumatic raid she and her sister endured when she was five, scarring her profoundly “beachheads” for revolution and leaving her guilt-ridden. We are privy to the high personal through subterfuge. cost of the resistance to Pinochet, but also the justifiable pride that standing firm gives the rebels. After a return to Canada, Carmen at 18 decides for herself to recommit to the cause and ventures back to Argentina to continue the struggle with her husband. A particularly poignant moment in the book occurs near the end when the narrator, a slightly disenchanted and older woman, meets up with “Alejandro”, now her exhusband, but still her compañero. The two sum up the gains and the losses of their wondrous time in the resistance. Alejandro suspects that he will never be able to tell the story of his revolutionary past to those close to him in his new life, who might think he went too far. Having completed Aguirre’s very fine memoir, I thought it would be useful to compare her experiences with those of Heraldo Muñoz, who lived through the same time period as the “revolutionary family” from Canada in his memoir: The Dictator’s Shadow. I will discuss that book in the next issue of LawNow.

Robert Normey is a lawyer with the Constitutional and Aboriginal Law Branch of Alberta Justice in Edmonton, Alberta.

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