Carleton University Journal of Legal Studies

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CARLETON UNIVERSITY JOURNAL OF LEGAL STUDIES

Volume V, Issue I

November 2015

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CUJLS 2015 [ABOUT] The Carleton University Journal of Legal Studies is a non-profit, student-run initiative. The goal is to showcase excellent undergraduate work, help students develop their academic skills, and create something that students will be proud to put on their rĂŠsumĂŠs. In this issue, the Editorial Board selected articles that cover a wide variety of topics and perspectives in law. This reflects the diverse interests of the student authors, as well as demonstrates how comprehensive and interdisciplinary undergraduate studies at Carleton University are. The CUJLS has been peer-reviewed by Peer Editors, Michael Gora and Emily Kim, as well as by the Editor-in-Chief, Meghan Boulanger. The journal is published annually each fall, and begins to accept article submissions in the spring.

[CUJLS COMMITTEE] Editor-in-Chief

Meghan Boulanger

Peer Editors

Michael Gora Emily Kim

CLLSS President

Sheema Rezaei

Faculty Liaison

Stacy Douglas

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---------------Table of Contents--------------

8

Editorial Meghan Boulanger

10

Introduction to the Canadian Legal System

11

Adversarial vs. Inquisitorial Legal System Amos Vang

22

Aboriginal Affairs

23

Constitutional Obligations in R. v. Kokopenance Darby Babin

35

The Canadian “Double Double” For Indigenous Rights Shani MacIsaac

43

We Find No Solace: Glen Coulthard’s Politics of Recognition in Tsilhqot’in Nation v. British Columbia Sarah Nixon

53

Perspectives on Bill C-51

54

The Contemporary Legal Garrison in an Age of Fear: A Critical Analysis of Bill C-51 Marlo Collier

64

Jury Nullification: A Last Resort Against Bill C-51 Jeremy Thompson

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73

Issues in International Law

74

The Evolution of Power in the Security Council and its Unprecedented Use in the Special Tribunal for Lebanon: A Legal Analysis Isabelle Crew

85

Betting on a Grey Area: A Threat Assessment of Organized Crime and Online Gambling in Canada Brandon Pasion

98

Feminist Legal Issues

99

Prejudice in Private: The Experience of Disadvantaged Groups in Canadian Prisons Christopher Dias

112

The Protection of Communities and Exploited Persons Act: Protecting Everyone but Sex Workers Caitlin Salvino

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----------Editorial------------------------------------------------

I would like to personally thank everyone who contributed to the creation of this volume of the Carleton University Journal of Legal Studies. Without the tireless efforts of Michael Gora and Emily Kim, the hard work of all the contributing authors, and the guidance of Stacy Douglas, this journal could not have been published. This edition of the CUJLS features an stimulating collection of articles that focus mainly on four broad topics: aboriginal affairs, the implementation of Bill C-51, international law considerations, and feminist legal issues. These are all prominent topics that many undergraduate students at Carleton have shown interest in. I believe that all of these articles encourage rigorous academic discussion about the practical and philosophical elements of the law in both a domestic and international context. I was personally inspired by each of the articles that comprise this edition of the CUJLS. I am excited to share them with the world through the online and physical copies of this publication. I hope that everyone who reads this collection of articles is as inspired as I am.

Meghan Boulanger Editor-in-Chief

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-----------------------Introduction to the Canadian Legal System ------------------------

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Adversarial vs. Inquisitorial Legal System: One, the Other, or Both? Amos Vang "An adversary presentation is essential to adjudication." – Neil Sargent, “The Judge and the Adversary System� in the Canadian Judiciary, 1976

In order for the Canadian adversarial

because of its ability to allow active party

court system to function effectively, the

participation, its consistency with Canadian legal

participating parties must actively present their

and political ideology, and its underlying trust in

perspectives to the judge. Although the

the parties' ability to testify the truth.

adversarial system has been firmly rooted and One must understand the differences implemented into Canadian law, one must between the adversarial and inquisitorial observe its advantages and disadvantages, as it is systems. The adversarial system is a not a perfect system. This system is opposite the "procedural system in which the parties and not inquisitorial system, a system that requires the the judge have the primary responsibility for judge to play an active role in finding the facts in defining the issues in dispute and for carrying a case. It, too, possesses a list of advantages and

the dispute forward through the system."1 It

disadvantages that must be put into embraces the concept of party prosecution as the consideration. However, after close examination right and responsibility of the case and evidence, of the characteristics of both adversarial and aforementioned above, is on the parties of the inquisitorial systems, the Canadian legal system should continue with the adversarial system 1

Ibid at 89.

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dispute.2 The adversarial system also features

certain proceedings from being initiated.4 In

the concept of party autonomy where there is a

doing so, the judge "can judicially notice all

legal competition to determine the better

facts considered beyond reasonable dispute, thus

presenter and arguer, the judge being passive

preventing the parties from consuming the time

and the prize being a verdict in the victor's

of the court by presenting evidence on clear

favour. The inquisitorial system imposes the

factual issues."5 This mode of action allows for

primary responsibility for dispute definition on

an efficient procedure in determining admissible

the judge. This system requires the judge to

facts, ultimately leading to a more efficient

actively inquire about the facts and search for

decreeing of a verdict. In addition, the

the truth, as well as conduct an independent

adversarial system can ensure a fairer legal

investigation on the case at bar.

playing ground than the inquisitorial system as fewer of the judge's biases are shown in the

In gaining context for both legal courtroom and the parties to the dispute have the systems, the adversarial system reveals more power to manipulate and strengthen their strengths than the inquisitorial system in regards arguments in order to win a favourable verdict. to Canadian law since it allows more party The inquisitorial system, on the other hand, participation in the court system than the would provide the setting for an uneven legal inquisitorial system. As aforementioned, the playing ground because more of the judge's adversarial system follows the concepts of party biases would show in the different numbers and autonomy and party prosecution. In party intensities of questions that he/she may ask each autonomy, the judge's function is limited to only disputes brought before him/her.3 In response to

party to the dispute during a trial.

any concern about total autonomy in the

Party prosecution is the principle

courtroom initiated by belligerent parties, the

affirming that "the parties have the right and the

adversarial system allows the judge to prevent

responsibility to choose the manner in which

2

4

3

Ibid at 90. Ibid.

5

Ibid at 91. Ibid.

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they will go forward with their case and the

on its own), and the significance it attaches to

proof they will present to support it."6 Therefore,

the participation of the parties."9 Relating back

it reinforces party autonomy in confirming

to the concepts of party autonomy and party

belligerent parties' ability to confidently testify

prosecution, this reinforces the right and

their arguments in a court of law. As Brooks

responsibility of the parties to present the

stated, this allows for "more accurate fact-

evidence and argue their perspective in a court

finding."7 Party prosecution and party autonomy

of law, which is in agreement with Canada's

work together to ensure a higher degree of

adoption of the Anglo-Saxon common law

legitimacy in determining the outcome of a trial,

tradition. 10 It limits political and legal power

increasing the active participation of the parties

and redistributes it to the people and the parties

in a trial.

to the dispute, giving them the active right and responsibility to testify and the active right and

The adversarial system works better in responsibility to cross-examine the evidence Canadian law than the inquisitorial system because it consistently correlates with Canadian

from the opposing parties to the dispute.11

political and legal ideology. In the adversarial

With the above being stated, the

system, "the individual is the [most] important

adversarial system also allows the parties to

unit of society,"8 contrasting with the

express themselves in whatever strategy they

inquisitorial system's view of the individual as a

respectively choose. This permits them more

part of a corporate unit. In addition, the

efficiency and flexibility in arguing their

adversarial system maintains three concepts in

perspective. It also features a cathartic effect,

terms of legal ideology: "the emphasis of upon

which as Brooks argued, "satisfies the

self-interest and individual initiative, its apparent

psychology of the litigants by legitimising a

distrust of the state (to determine legal matters

courtroom duel which is a sublimation of more

6

9

7

10

Ibid at 92. Ibid at 91. 8 Ibid at 92.

Ibid at 93. Ibid. 11 Ibid at 99.

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direct forms of hostile aggression.�12 In other

colour, religion, sex, age or

words, it provides an environment of legal,

mental or physical disability.13

dignified aggression where both participating The adversarial system displays a higher parties can vent their arguments and frustrations

degree of trust in the parties’ ability to present

to an attentive justice in the formalised setting of themselves in a court of law. This is a courtroom. The role of counsel is also accomplished through a series of assumptions distinguished in the adversarial system in that which state that the parties are initially lawyers have interests that coincide with their motivated, will sustain their motivation, have clients and that both will share in a legal victory equal capacity, skill and resources, and will be or loss regardless of circumstances. Relating to

given the opportunity to test adverse evidence.14

the political and legal ideology of Canada, these The adversarial system trusts that the parties are characteristics of the adversarial system fall in equally interested in the outcome of the case; agreement because it ensures a fair legal playing otherwise, the parties would not have ground as decreed in s. 15(1) of the Charter of participated in the proceedings of their Rights and Freedoms: respective cases at all. This trust in party Every individual is equal before

interest is strengthened by their ability to

and under the law and has the

maintain their motivation through a system of

right to the equal protection and

rules and tests that determine the admissibility of

equal benefit of the law without

evidence in a court of law. Thus, these rules and

discrimination and, in particular,

tests ensure that the parties, while maintaining

without discrimination based on

their motivation, "independently investigate all

race, national or ethnic origin,

evidence in their favour."15 The sustained motivation would also ensure the party's equal 13

12

Ibid.

Canadian Charter of Rights and Freedoms, 1982, c 11, s 15(1). 14 Brooks, supra at 95-98. 15 Ibid at 96.

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capacity, skill and legal resources in a court of

(including s.16(3) and the rest of the Canada

law, ensuring that the party has a considerable

Evidence Act) that pertain to the admissibility of

chance of winning the case in their favour.

evidence pointing towards the truth. The best legal system that ensures a successful pursuit of

Party autonomy and party prosecution truth is the adversarial system because the are strong elements of the adversarial system courts, through party autonomy and party that allows for accurate verdicts and efficient prosecution, can receive a plethora of evidence procession of cases. However, as implied by the which they use to find the truth through Canada Evidence Act, the most important element of Canada’s legal system is the pursuit

interpretation of the actual events and elements of the case and appropriating the law to these

of truth. Truth must be the goal of law. Justice can only be achieved when the truth has been found, because without truth, a proper verdict is

events. As with other formal systems, there are

impossible to achieve, and without a proper

many criticisms of the adversarial system. The

verdict, injustice occurs. The Canada Evidence

adversarial system operates only on a system of

Act implies that truth not only should be and

assumptions, not affirmations, meaning it only

must be the goal of law, but truth has already

distributes relative control to the judge over the

become the goal of law in Canada:

proceedings of the case and can potentially discriminate the rights of the people and the

A person who... is able to parties of the dispute. Furthermore, because communicate the evidence may... testify on promising to seek the truth.16

judges do not have an active role in the adversarial system, the parties can manipulate

In other words, the Canadian legal

evidence and even distort the truth in their

system ensured it could succeed in its goals of

respective arguments, skewing the final verdict.

pursuing the truth by decreeing a list of statutes

The inquisitorial system addresses this problem with the judge becoming an active participant in

16

Canada Evidence Act, RSC 1985, c C-5, s 16(3).

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the courtroom, proceeding with finding the facts

who market and even commodify themselves to

through inquiry of the parties.17 The

the parties to the dispute. The inquisitorial

inquisitorial system places the judge in an active

system does not have this arguably flawed

role instead of a passive role (unlike the

element because the judge, who maintains a

adversarial system). Thus, the judge obtains a

neutral stance, searches for the cases, refraining

higher advantage and more power and authority

from commodification of him/herself to the

in determining the truth because the judge is the

people. Therefore, the nonexistence of

active inquirer in the courtroom instead of the

commodification reinforces the inquisitorial

counsel. The inquisitorial system, as some may

system's prominent goal of law as the truth since

argue, is purely set on determining the truth,

the system chooses truth instead of money.

whereas the adversarial system is purely set on a

Furthermore, as Frank argues, "this defect in our

competitive courtroom instead of prioritising the

judicial [adversarial] system makes a mockery of

determination of truth.

'equality before the law'... That equality, in such instances, depends on a person's financial

To continue with possible criticisms on condition."19 Since many citizens are not part of the adversarial system, one must also turn to the wealthier upper class, obtaining high quality Jerome Frank. Frank stated that people must legal expertise becomes impossible due to its "acknowledge that, in a real sense, frequently we [the lawyers] are selling justice."18 Frank’s

increasingly exorbitant cost. To summarise Frank's criticisms, he believed that the

statement of marketed justice can be argued as a adversarial system is an example of flawed element possessed by the adversarial commodified justice, and that in application to system and not the inquisitorial system because practicality in the law (in this case, Canadian the adversarial system can only have active law), the inquisitorial system should be chosen parties to the dispute when there are lawyers over the adversarial system. 17

Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton University Press, 1949), at 80. 18 Ibid at 94.

19

Ibid.

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While Frank’s criticisms may seem

legal aid.22 Injustice results from the

abstract to some readers, these same criticisms

inaccessibility of Canada’s legal system as many

of commodified justice and financially

Canadians do not want to increase the intensity

conditional access of legal expertise were

of their legal problems by introducing financial

realised in 2007 by Chief Justice Beverley

ones after reliance on an expensive lawyer. In

McLachlin. In her speech to the Empire Club of

relation to the adversarial system in Canada,

Canada, Justice McLachlin presented four

commodification of the legal system causes an

challenges in her career involvement in the

unfair competition in the courtroom as one party

pursuit of Canadian justice.20 One of these

to the dispute forfeits their ability to testify,

challenges is access to justice, especially access

eliminating the party’s opportunity to a fair trial.

to legal aid. Justice McLachlin stated that the While these are legitimate arguments Canadian legal system is open to two groups: the against the use of the adversarial system, the wealthy upper class and individuals charged system does have measures that can address the 21

with indictable offences.

The majority of aforementioned issues. The assumptions made

Canadians, especially Canadians in the middle by the adversarial system give more power to the class, are ineligible for legal aid, since they do parties which affirm the concept of democracy not have the disposable wealth to obtain legal as putting the power to the people. Moreover, aid, they have not committed indictable although the judges have a passive role in the offences, and they have not demonstrated adversarial system, their passivity is not income that is insufficient enough to receive free absolute. The judge still has the power and responsibility to ensure admissible evidence and testimony in a court of law and will actively 20

Supreme Court of Canada, The Challenges We Face: Remarks of the Right Honourable Beverley McLachlin, P.C. Presented at the Empire Club of Canada (Ottawa: Supreme Court of Canada, 2007), online: Supreme Court of Canada <http://www.scccsc.gc.ca/court-cour/judges-juges/spe-dis/bm-200703-08-eng.aspx>. 21 Ibid.

appropriate this power and responsibility in action when the need arises. It is also the duty

22

Ibid.

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of the judge to discern evidence and testimony

Furthermore, commodified justice is

as to whether or not it skews the truth. Truth

conquerable given the vast amount of resources

should and must be the goal of law, and while

in the current Canadian legal system. To

the adversarial system does not explicitly

conquer commodification, legal aid must be

consider truth as its primary relevant goal, its

made more accessible to Canadians in the

procedural elements point toward truth as the

middle class through social, legal and political

ultimate result and goal of law. Even though the

means. The best candidates that can ensure

system favours a legal competition between

accessible justice are lawyers, lobby groups and

belligerent parties, the evidence and testimony,

NGOs. Fortunately, according to Justice

however manipulative, still must have truth.

McLachlin, lawyers are giving “free, or pro

This is enforced in Canadian law at sections 13,

bono, service to needy clients. Clinics have

14 and 16 of the Canada Evidence Act, where a

been set up by governments, NGOs and legal

person must swear an oath, solemn affirmation

groups to help self-represented litigants. Rule

or promise to tell the truth. One must remember

changes to permit contingency fees… and class

that this is already taking place in the current

actions provide ways for people of modest

Canadian legal adversarial system, meaning that

means to litigate some tort and consumer

truth has been the underlying goal of law in

actions.”23 Most importantly, Justice McLachlin

Canada. Therefore, this legally established

stated that some modest progress is being

property of the current adversarial system

made.24 Dramatic progress also continues to

challenges the argument that the adversarial

exist for Canadians under the poverty line and

system favours money over truth because the

First Nations, where more free services are being

procedures currently involved in a formalised

provided to address the 50% of individuals who

legal system like Canada have already imposed a

suffer from legal inaccessibility.25 Legal actors

formalised system of evidence admissibility. 23

Ibid. Ibid. 25 Rachel Mendleson, “Legal Aid announces significant expansion” The Toronto Star (08 June 24

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are making important strides in increasing legal

informing of governments and other

accessibility to Canadians, deconstructing the

organisations on the needs of clients, and

commodified nature of justice altogether.

assistance of governments and other organisations in the development of policies.27

In addition to the adjustments made to The recommendations of the CBA implied that lawyer fees and class actions, the Canadian Bar if the Australian adversarial system, which Association (CBA) initiated a list of benchmarks operates similarly to the Canadian adversarial outlining update requirements that aimed to system, can increase its accessibility to expand legal aid eligibility to more Canadians Australians through increasing communication while preserving and improving the integrity and between legal service providers and government efficiency of the Canadian adversarial legal system. The CBA’s benchmarks collectively

organisations, Canada should also be able to increase its own legal accessibility to Canadians.

stated that through increased constructive Thus, there exists no need for the adversarial cooperation between legal aid assistance system to be completely replaced with the providers and other service providers, clients can receive “joined-up services” as a result of legal

inquisitorial system due to the existence of modest progress in increasing legal accessibility.

cooperation, increasing both the accessibility and the legal resources at the clients’ disposal.26

Even with all the changes introduced,

The CBA also recommended three more

the adversarial legal system relies on the person

objectives that originated from the Australian

him/herself to show self-interest and

Legal Assistance Forum (ALAF): consistent

involvement in the legal system. Sacrifices must

dissemination of information and

be made by the parties to the dispute in the

communication amongst the service providers,

pursuit of justice and truth. While the

2015), online: < http://www.thestar.com/news/queenspark/2015/06/08 /legal-aid-announces-significant-expansion.html> 26 Melina Buckley et al, What Do We Want? Canada’s Future Legal Aid System (Canadian Bar Association, 2015) at 98.

27

Australian Legal Assistance Forum, Objectives of Australian Legal Assistance Forum (ALAF) (Hobart: Australian Legal Assistance Forum, online: Australian Legal Assistance Forum < http://www.nationallegalaid.org/home/australianlegal-assistance-forum-alaf/>

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inquisitorial system encourages lethargy and

adversarial system runs at a more intimate level

passivity in the pursuit of justice and truth, the

to the parties and entrusts them with their

adversarial system encourages legal self-

initiation and sustainability of their motivation

diligence and initiative. If Canadians desire just,

in their case, their capacity, skill and resources

fair change in their lives, regardless of the

in a court of law and their ability to test adverse

amount of legal accommodation, they must

evidence. Truth must be the goal of law, and as

show initiative and stand up for their own

decreed by the Canada Evidence Act, truth has

argument and perspective.

always been the goal of Canadian courts. Thus, the adversarial system efficiently maintains the

Canada should continue to adopt the pursuit of truth by allowing party autonomy and adversarial system as the structure of its current party prosecution, allowing an abundance of legal system. It allows parties to the dispute to admissible evidence useable for court actively participate in their respective legal interpretation and just verdicts. Decisively, the cases, giving them the right and responsibility of adversarial system is more effective and in addressing their evidence and arguments to a deeper agreement with Canadian political and judge. The adversarial system ensures that the legal ideology than the inquisitorial system, and individual person is the most important unit of Canada should continue with the adversarial society which falls in agreement with Canadian political and legal ideology and ensures that the

system for the good of its people.

power falls in the hands of the people. The

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BIBLIOGRAPHY LEGISLATION Canada Evidence Act, RSC 1985, c C-5, s 16(3). Canadian Charter of Rights and Freedoms, 1982, c 11, s 15(1). SECONDARY SOURCES Australian Legal Assistance Forum, Objectives of Australian Legal Assistance Forum (ALAF) (Hobart: Australian Legal Assistance Forum, online: Australian Legal Assistance Forum < http://www.nationallegalaid.org/home/australian-legal-assistance-forum-alaf/> Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton University Press, 1949). Melina Buckley et al, What Do We Want? Canada’s Future Legal Aid System (Canadian Bar Association, 2015) Neil Brooks, "The Judge and the Adversary System" (1976) The Canadian Judiciary. Rachel Mendleson, “Legal Aid announces significant expansion” The Toronto Star (08 June 2015), online: < http://www.thestar.com/news/queenspark/2015/06/08/legal-aid-announces-significantexpansion.html> Supreme Court of Canada, The Challenges We Face: Remarks of the Right Honourable Beverley McLachlin, P.C. Presented at the Empire Club of Canada (Ottawa: Supreme Court of Canada, 2007), online: Supreme Court of Canada <http://www.scc-csc.gc.ca/court-cour/judgesjuges/spe-dis/bm-2007-03-08-eng.aspx>.

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-----------------------Aboriginal Affairs ------------------------

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Constitutional Obligations in

R. v. Kokopenance: Theoretical Perspectives on Aboriginal Peoples & Representation in Canada’s Justice System

Darby Babin INTRODUCTION The law in Canada is touted as fair, just, and equal; but often it is unjust, unfair, and unequal. There is no clearer example of this inequality than that of the colonization of Aboriginal populations. In the recent Ontario Court of Appeal decision in R. v. Kokopenance28 a new standard has been set regarding the representation of, and relationship between, aboriginal peoples and the criminal justice

was whether the government of Ontario failed to meet their constitutional obligation of representativeness when assembling the jury for Clifford Kokopenance’s criminal trial, therefore violating his Charter30 rights under s. 11. The Ontario court, came to the appropriate conclusion by determining that the provincial government did in fact violate this right, and did not make reasonable efforts to follow through with their constitutional obligation. While this decision is favourable, the

system. What remains to be seen is whether or not this case will have a similar impact to the decision made in R. v. Gladue29 insofar as it impacts Canada’s understanding of the precarious position of aboriginal peoples in society. The issue in the Kokopenance appeal

route of Charter litigation is not enough to remedy the relationship between aboriginal peoples and the criminal justice system. It is not enough at either a provincial or federal level to simply go through the motions of recognizing the overrepresentation of aboriginal peoples in

28 29

R. v. Kokopenance [2013] ONCA 389 R. v. Gladue [1999] 1 S.C.R. 688

30

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, c. 11, s. 11

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prisons and the underrepresentation of aboriginal

Government. They have been assaulted, abused,

peoples in the courtroom, while failing to

systematically alienated, and disregarded by the

confront the reality of their underlying causes:

justice system at almost every turn. The

the government itself. The decision rendered by

residential school system forcibly removed

the Ontario Court of Appeal in Kokopenance is

aboriginal peoples from their culture and

an important step, but case law alone cannot

imprisoned them in the culture of white settlers.

save the disadvantaged and discriminatory

The Sixties Scoop saw aboriginal children

effects of the justice system on Aboriginal

removed from the homes of their parents

populations in Canada. This becomes

because their traditional family values did not

exceedingly clear in the wake of the Supreme

mesh with that of Canadian values, and were

Court’s decision on this matter, which is

therefore viewed as abusive or neglectful. Yet it

contrary to that of the Ontario Court of Appeal.31

was, and continues to be, the behaviour of the

CONSTITUTIONAL HONOUR AND REASONABLE EFFORTS

Canadian government that is both abusive and neglectful towards aboriginal populations.

Despite the majority decision to reverse It was not until 1996 that the last the findings of the Ontario Court of Appeal in residential school in Canada was closed. Kokopenance, it has been previously recognized Seventeen years later, in Manitoba Metis by the Supreme Court of Canada that aboriginal

Federation Inc. v. Canada (Attorney General)33,

peoples have been discriminated against in a it was recognized that the Canadian government way that no other groups in Canada have ever owes aboriginal peoples a duty of consideration. experienced.32 From the beginning of This principle is known as the honour of the colonization, through the process of forced Crown, the purpose of which is “the assimilation and residential schools, the groups reconciliation of pre-existing Aboriginal indigenous to Canada have faced extreme societies with the assertion of Crown aggression at the hands of the Canadian 31 32

R. v. Kokopenance [2015] SCC 28 Supra note 2.

33

Manitoba Metis Federation Inc. v. Canada (Attorney General) [2013] SCC 14

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sovereignty”.34 This is part of the obligation that

the population”.37 As Justice LaForme explains,

the government of Ontario owed the appellant in

it is through this piece of legislation that the

Kokopenance. Justice of Appeal LaForme

government of Ontario chose to implement its

emphasized this point by acknowledging that

constitutional obligation to aboriginal peoples,

while this honour is usually imposed in relation

and therefore, the honour of the Crown and the

to treaty rights, “decisions by the Supreme Court

history that it represents are relevant.

have explicitly and repeatedly stated that the

Historically, Aboriginal peoples have

principle of the honour of the Crown is always

not had a favorable relationship with the

engaged where Aboriginal peoples are

criminal justice system, including jury

concerned”.35

representation and jury trials. Similar to R. v.

However, Canada’s highest court has

Parks38, in R. v. Williams, it was held that the

also stated that the honour of the Crown cannot

accused should have been be able to challenge a

be engaged solely on the basis that aboriginal

prospective juror for cause in regards to racial

peoples may have a larger presence or particular

bias. Justice McLachlin, as she was then, noted,

interest in a matter; in Kokopenance, the honour

“knowledge or bias may affect a trial in different

of the Crown is not relevant simply because the

ways”39. The process of creating this jury is

appellant is Aboriginal, but because the appeal is

where a large part of this bias can ensue: “only if

based on legal rights within the Charter.

the process begins with a properly representative

Moreover, the government of Ontario chose to

jury roll, can a petit jury randomly derived from

single out Aboriginal peoples through s. 6(8) of

it have the required element of

the Juries Act.36 This section “explicitly treats

representativeness”40. The objective of section

Aboriginals (specifically those living on-reserve)

11(d)(f) of the Charter are to ensure that juries

separately and differently from the remainder of

derived from jury rolls are impartial, and the

34

Supra at para 66. 37

Supra note 1 at para 127. R. v. Parks [1992] 2 S.C.R. 871 39 R. v. Williams [1998] 1 S.C.R. at 11 40 Ibid. note 9 at 27. 38

36

Juries Act, R.S.O. 1990, c. J.3

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maintenance of public confidence in the criminal

those responding who are eligible for jury service”.42

justice system: Throughout each of these steps, the government 11. Any person charged with an offence has the right (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.41 The process taken in the Kenora

must make “reasonable efforts […] by providing groups that bring distinctive perspectives to the jury process with the fair opportunity to be included in the jury roll”.43 In Kokopenance it was found that the government of Ontario did not make reasonable efforts to include onreserve aboriginal peoples in the jury roll. Despite the fact that the government has been acutely aware of the issues regarding lack of responsiveness from both on and off reserve aboriginal peoples, they made no committed steps to ensure that on-reserve residents received

District, from which Kokopenance’s jury roll

jury notices, were able to understand them, or

was derived, shook such confidence—or what

responded to them. It is clear that the Supreme Court

little confidence remained on behalf of Aboriginal peoples. The jury roll process is three

upholds the significance of impartiality of the

fold:

jury. In Kokopenance the issue is not one of “first, the compilation of the lists and the random selection of names from them to receive jury service notices; second, the delivery, receipt, and return of those notices; third, the entering on the jury roll of

whether the jury was biased or not, but that the system itself is biased. A jury cannot be an adequate representation of the public if it is void of the aboriginal voice. It is here that the Supreme Court majority finds this case to be an 42

41

Supra note 3.

43

Ibid. note 9 at 46. Ibid. at 49.

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impractical use of the law. The decision,

reserve return rates were as low as 10%,

delivered by Justice Moldaver, is adamant about

declining from 15.8% in 2002, which was a

the tradition of the jury process. Moreover, the

significant decline from 33% in 1993.46 While

majority put forth that to require a jury to be a

the specific steps are discussed at great length in

mirrored representation of society would call

the Court of Appeal’s decision, there is not the

into question the entire criminal trial process,

space to describe them each here. Justice

thereby creating insurmountable problems in the

LaForme’s decision resulted in his conclusion

legal system.44 The Court is correct in their

that the state took few steps to ameliorate the

position that it is a slippery-slope to require

situation of jury roll composition, despite the

juries to have a particular ratio of different

knowledge that was obtained both prior to 2000,

enumerated groups; however, it has been

and in the years between 2001 and 2008. Their

repeatedly put forth by the same Court that the

reliance on outdated band lists meant that they

position of aboriginal peoples in Canada is

were not making the required reasonable efforts

unlike that of any other, particularly in regards

to ensure that the process was fair.47

to the criminal justice system. It is noted in Kokopenance that prior to

The Ministry of the Attorney general instituted what is referred to as the PDB#563

2001, Indian and Northern Affairs (INAC)

directive, which instructed public servants to

provided band lists to the government that

obtain appropriate lists, calculate the number of

complied with s. 6(8) of the Juries Act, but this

questionnaires that needed to be sent, check

practice ended in order to protect privacy.45 At

reserves, and provide interim reports to the

the time of the Kokopenance appeal, the

Provincial Jury Centre (PJC) regarding return

common practice was, if band electoral lists

rates and the appropriate lists being used or the

could not be obtained, that the outdated INAC

ability to obtain such lists.48 However, in the

lists could be used. Furthermore, by 2008, on-

Kenora District the majority of the s. 6(8) work 46

44

Supra note 4. 45 Supra note 1.

Ibid. Ibid. 48 Ibid. 47

27 |CUJLS 2015


fell entirely on a sole public servant, Ms.

Justice Laforme’s words, “the integrity of the

Loohuzien. Any efforts that were made by the

justice system and the administration of

Ministry of the Attorney General to ameliorate

justice”.50 This integrity is consistently

this problem were left in her hands. While

undermined when understanding the relationship

Loohuzien did take particular steps to establish a

between Aboriginal populations and the

better relationship between the PJC and

governments of Canada as one that in rooted in

Aboriginal communities, the burden of Ontario’s

colonialism, and will not be repaired until the

constitutional obligation should not lay heavy on

government makes honest steps to reverse the

the shoulders of one low-level government

impacts of this oppressive colonial legacy

employee. Rather, this burden should rely on

outside of case law and Charter litigation.

provincial governments, the Justice Minister, or in an honest attempt at reconciliation, a

COLONIALISM AND THE CULTURE CLASH

dedicated body at both the provincial and federal The clashing approaches to justice

levels. Justice LaForme found that because the

between the Canadian legal system and

Ontario government was aware of the lack of on-

traditional Aboriginal perspectives are referred

reserve responsiveness, but shifted the burden

to in the Honourable Frank Iacobucci’s Report

onto public servants to ameliorate the issue, they

on First Nations Representation on Ontario

undermine their claim to reasonable efforts.

Juries.51 Iacobucci’s report was cited in

Moreover, the government of Ontario did not

Kokopenance, as he is critical that the current

approach their jury roll process with the honour

system is ineffective “and results in a jury roll

of the Crown, or consider the unique nature of 50

Canada’s relationship with aboriginal peoples. This violation of the Charter on behalf of the government of Ontario is detrimental to, in 49

Ibid.

49

Ibid. at 227. Frank Iacobucci, First Nations Representations On Ontario Juries: Report of the Independent Review Conducted by the Honourable Frank Iacobucci (Toronto, ON: Ontario Attorney General, 2013) Online: < https://www.attorneygeneral.jus.gov.on.ca/english/ab out/pubs/iacobucci/pdf/First_Nations_Representation _Ontario_Juries.pdf> 51

28 |CUJLS 2015


that is unrepresentative of all First Nations

Part of the reason that Aboriginal

peoples on reserve”.52 There is a theory that

peoples do not feel comfortable engaging with

supports the idea underlying Iacobucci’s

the criminal justice system is that even in the

statement, and the perspective reinforced by

position of juries, they are part of a system that

LaForme’s decision in Kokopenance. This

does not reflect their values, but the values of

theory is examined in Jonathan Rudin’s paper

colonial Canada. There has always been a

Aboriginal Peoples and the Criminal Justice

blatantly unequal relationship between

System, and is referred to as the culture clash

Aboriginal peoples and the Canadian

theory. This theory is rooted in the argument that

government; the process of residential schools

“Aboriginal concepts of justice and Western

and forced assimilation attempted to

concepts of justice are very different”.53

systematically destroy an entire culture, and the

Aboriginal justice focuses on accepting

impacts of this destruction are the foundation of

responsibility, while the Western system focuses

Aboriginal positions in the justice system. This

on placing blame and enacting punishment. This

is reflected in Iacobucci’s report, particularly in

culture clash is prevalent in the process of jury

regards to the fact that Aboriginal people were

rolls because there is a clear discrepancy

not recognized as persons worthy of

between the understanding of this process on the

enfranchisement until 1960.54 Culture clash can

part of the government, and the understanding

be understood in relation to this process of

on the part of Aboriginal communities,

colonialism, as all issues regarding Aboriginal

particularly, as seen in Kokopenance, those on

peoples can. There was a clear disregard for

reserves.

human dignity and human rights at the time of colonization, and this is further exacerbated by issues that plague Canada’s criminal justice

52

Supra note 1 at 69. Jonathan Rudin, Aboriginal Peoples and the Criminal Justice System (Toronto, ON: Ipperwash Inquiry, 2005) Online: <http://www.attorneygeneral.jus.gov.on.ca/inquiries/i pperwash/policy_part/research/pdf/Rudin.pdf> at 22 53

system. One of which is a lack of proper representation on juries, as discussed in R. v. 54

Supra note 22.

29 |CUJLS 2015


Williams, and a flawed process which leads to

to the tampered relationship between this system

this underrepresentation as seen in

and its roots in colonial oppression. Without the

Kokopenance. There is no way to discuss the

colonization of aboriginal peoples, this system

failures of the criminal justice system in its

would not exist. Instead, there could be a

dealings with aboriginal peoples without

harmonized and holistic system that accounts for

discussing colonialism and the culture clash

the peoples indigenous to what is now

which occurred at the time of colonization, and

considered Canadian land. However, it is

continues to run rampant today.

impossible to imagine this system because the

Kokopenance reflects an important part

impact of colonialism runs deep, creating a

of the culture clash theory. The inability of on-

culture clash between Aboriginal peoples and

reserve Aboriginal peoples to serve on juries

the criminal justice system at every turn.

resulted from the lack of adequate dialogue

While it is not explicitly stated, the

between the government of Ontario, and the

culture clash and colonialism theories are

needs of Aboriginal peoples both on and off

present in Justice of Appeal LaForme’s decision

reserve. It was not enough to send more notices,

in Kokopenance. His insistence on the honour of

or to amend certain provisions and add

the Crown is a reflection of the recognition of

translations. While these are important steps, as

colonialism and its impacts. The theory of

was determined by Justice LaForme, they are not

colonialism as an explanation as to why

enough. The clash is reinforced when the

aboriginal peoples are largely ignored by the

government does not take into account the

criminal justice system, while simultaneously

honour of the Crown in their enactment of

being singled out by it, are evident in LaForme’s

specific legislation that affects and singles out

recognition that underrepresentation of

aboriginal peoples. It is impossible to refer to

Aboriginal peoples on juries can lead to

interactions between aboriginal peoples and the

overrepresentation of aboriginal peoples in

criminal justice system, either as victims, offenders, jury members, etc. without referring 30 |CUJLS 2015


prisons.55 The rates of Aboriginal incarceration

the Crown, and how to uphold this honour and

remain higher than that non-Aboriginal

its affect on reconciliation efforts.56 The clash of

Canadians, while the rates of Aboriginal peoples

cultures is a direct result of the effects of

on juries remain lower than those of non-

colonialism, and as such, the two theories cannot

Aboriginal Canadians. The connection between

be fully separated from one another. Much like

these two issues cannot be ignored, and their

the constitutional obligation and the honour of

connection to the impacts of colonialism is

the Crown could not be separated from the

integral to their presences and perseverance in

reasonable efforts required on the behalf of the

the contemporary justice system.

Ontario government in Kokopenance.

The culture clash is further exacerbated

It is this perspective that is echoed by

by the belief that all Aboriginal communities are

Chief Justice McLachlin and Justice Cromwell,

the same, and that all of their unique values

giving further gumption to the power of the

directly oppose those of the Canadian

dissenting opinion. It is through their dissent that

government and the justice system. The decision

the sentiments of the Iacobucci Report are

in Kokopenance to reaffirm the necessity of both

reiterated: “the most significant barrier to the

on and off reserve Aboriginal perspectives on

participation of First Nations people in the jury

juries shows the Canadian judicial system that

system in Ontario is the negative role the

such cultures are worthy of consideration in the

criminal justice system has played in their lives,

field of justice. Moreover, Justice LaForme

culture, values, and laws throughout history�.57

promoted this consideration in his reading of

Here, both CJ McLachlin and Justice Cromwell

Kokopenance by reinforcing Ontario’s

refuse to turn a blind eye to the damaged

constitutional obligation towards Aboriginal

relationship between aboriginal peoples and the

communities. LaForme maintained that the

criminal justice system. Unlike the majority,

question of reasonable efforts in this case should

they refuse to cite inconvenience and lack of

be understood in connection with the honour of 56 55

Supra note 1.

57

Ibid. Ibid note 17 at para 280.

31 |CUJLS 2015


precedent as a reason to dismiss the appeal;

reasonable efforts by violating their

rather, they welcome the discussion of change,

constitutional obligation and the Canadian

stating “the intractable dimensions and

Charter of Rights and Freedoms. Decisions like

complexity of the problem do not provide an

that in Gladue have had an impact on how the

excuse for the state’s failure to make appropriate

judicial system treats Aboriginal offenders; and

efforts in the context of complying with the

the impact of Williams on the understandings of

constitutional obligation”.58 The Chief Justice

prejudice and racial bias as an underlying and

does not fear a challenge in the name of

subconscious presence on juries when the

reconciliation, and it is in the Kokopenance

offender is Aboriginal, is significant. What

dissent that commitment to the honour of the

Kokopenance shows is that the culture of the

Crown can be found.

Canadian criminal justice system is still excluding the culture of Aboriginal justice

CONCLUSION The Ontario Court of Appeal’s decision in Kokopenance is an important step towards

practices, and the unique perspectives of Aboriginal communities. A constitutional obligation is owed to

understanding the future of the relationship

Aboriginal peoples across Canada, not just the

between Aboriginal individuals and the criminal

government of Ontario in its compilation of jury

justice system. The government of Ontario owed

rolls. Even with the honour of the Crown, the

a constitutional obligation to Clifford

hegemony of Canadian justice is rooted in

Kokopenance, and the government of Canada

oppression and colonialism. The responsibility

owes a constitutional obligation to the entire

to form better relationships between Aboriginal

Aboriginal population. As it stands, the lack of

peoples, both on and off reserves, cannot fall

action taken by the Canadian government echoes

entirely on the shoulders of public servants like

the behaviour of the province of Ontario in

those in the Kenora District. Rather, this burden

Kokopenance: they undermine the credibility of

belongs to the governments of Canada, at every

58

level and throughout every branch. Colonialism

Ibid at 289.

32 |CUJLS 2015


is a deep seeded root that cannot be torn out

Both the provincial and federal governments

without continually open dialogue, and

must continually engage with their constitutional

recognition that the impacts of its history

obligations towards aboriginal peoples, and

remain. The culture clash and colonialism

should recognize the prevalence of colonial

theories represent both a past and present tense

thought which underlays the criminal justice

in Canadian society, and Charter litigation is not

system. There is indeed a clash between

enough to promote a reconciled future.

cultures, and it is not only a clash between

If there is indeed any honour on the part

colonialism and Aboriginal rights, but also a

of the Crown, the governments of Canada

clash between justice and honour. Case law

cannot, and should not, wait for aboriginal

emerging from a criminal justice system that is

peoples to bring forth claims of rights violations

founded in colonial oppression cannot claim to

to make positive strides towards true

have any honour, and can no longer stand as an

decolonization. The Canadian justice system in

appropriate manifestation of reconciliation

its dealings with aboriginal peoples, should not

efforts.

view reconciliation as a goal but a necessity.

33 |CUJLS 2015


BIBLIOGRAPHY LEGISLATION Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, c 11.

JURISPRUDENCE R. v. Gladue, [1999] 1 S.C.R. 688 R. v. Kokopenance [2013] ONCA 389 R. v. Kokopenance [2015] SCC 28 Manitoba Metis Federation Inc. v. Canada (Attorney General) [2013] SCC 14 R. v. Parks [1992] 2 S.C.R 871 R. v. Williams [1998] 1 S.C.R. 1128

SECONDARY MATERIAL: ARTICLES Iacobucci, Frank. First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by the Honourable Frank Iacobucci (Toronto, ON: Ontario Attorney General, 2013) Online: https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/iacobucci/pdf/First_Nations_Repre sentation_Ontario_Juries.pdf Rudin, Jonathan. Aboriginal Peoples and the Criminal Justice System (Toronto, ON: Ipperwash Inquiry, 2005) Online: <http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_part/research/pdf/Rudin.p df>

34 |CUJLS 2015


The Canadian “Double Double” for Indigenous Rights Shani MacIsaac INTRODUCTION Is it possible a nation can define

in contrast to sovereign rights advocated by

citizenship if the original inhabitants do not

Quebec nationalists, and the implied ‘double

identify themselves as such? It has been debated

standard’ of sovereignty. Would it be legitimate

that the Indigenous people of Canada are

to deny one minority group the right to self-

continually objectified and discriminated against

determination and self-governance whilst

by Canadian laws and outdated concepts of

supporting the plight of another? This could

sovereignty in regards to decolonization. Glen

potentially create new discriminatory practices

Coulthard posits the relationship between

within the State law, thus continuing the

Indigenous peoples and the Canadian state

perpetual subordination of the Indigenous

cannot be positively impacted through what he

people. The author posits that Quebec could set

calls the ‘politics of recognition’, until

a dangerous precedent and potentially recolonize

nationhood claims are acknowledged by the

the Indigenous People through the law. This

colonizer.59 The right to self-determination60 lies

paper aims to critically analyse the claims of the Quebec nationalists and the indigenous

Glen Coulthard, “Subjects of Empire: Indigenous Peoples and the 'Politics of Recognition' in Canada” (2007) 6 Contemporary Political Theory 437–460. 60 Self-determination is an ‘on-going process of choice’ to ensure that Indigenous communities are able to meet their social, cultural, and economic needs. It is not about creating a separate Indigenous ‘state’. See: Right to selfdetermination online: Australian Human Rights Commission 59

population in Canada. It explains the cyclical trap that indigenous social movements face and offers possible solutions.

<https://www.humanrights.gov.au/right-selfdetermination>.

35 |CUJLS 2015


COMPARING THE CLAIM

explains, the idea of Canadian citizenship was

There is a major difference between the

created outside of the realm of the Indigenous

dated of concept sovereignty and the more

people and did not account for their culture or

desirable idea of self-determination.61 This

potential legal personality.66 The idea of

section of the paper first defines the double

Canadian citizenship was created as a colonial

standard62 that Quebec tried to create with their

identity to define the immigrants that ‘settled’

attempt to separate from Canada in order to be a

the land from the Indigenous. The Royal

sovereign state. Second, it will explain how the

Proclamation signed in 1763 set out the basis for

endogeneity trap63 created by the Canadian legal

the relationship between the government (the

system prevents social change64

Crown) and the Indigenous people, recognizing indigenous titles and governance.67 The core of

INDIGENOUS VS. QUEBEC SELFthis proclamation reflects the idea of Indigenous DETERMINATION: THE DOUBLE nationhood. 68 STANDARD The Indigenous people of Canada have

The Quebecois plight for self-

never accepted the idea of Canadian sovereignty

determination focuses on the idea that their

over their native lands.65 As Darlene Johnston

identity of the people is distinct to that of the general Canadian population. The Quebec separation focused on the idea of Quebec

Reg Whitaker, “Sovereignties Old and New: Canada, Quebec, and Aboriginal Peoples” (1999) 58 Studies in Political Economy 69-94. 62 Double Standard in this context refers to the possible precedent of putting one minority group a head of another in terms of selfdetermination. 63 Endogeneity trap is the legal trap that is the legal paradox that attempts to create change from within the law for the benefit of a group that is outside of the state. 64 Turpel-Lafond Mary Ellen, “Qui the People: Conflicting Visions of Self-Determination in Quebec” (1996) York University Library 120129. 65 Patrick, Grady, "What about the Aboriginal Peoples" Global Economics Ltd. online at 61

sovereignty over the province of Quebec as a

:<http://www.globaleconomics.ca/dth.chap7.html>. 66 Darlene Johnston, “First Nations and Canadian Citizenship” in William Kaplan, ed., Belonging: The Meaning and Future of Canadian Citizenship (Kingston: Mc-GillQueen’s University, 1994) 349. 67 King George III, “The Royal Proclamation No. 1” (1763), 1-7. 68 Supra note 1 at page 440.

36 |CUJLS 2015


whole.69 It has been argued that Quebec’s

Rights (ICCPR) to prevent recolonization.72

independence has merit on the grounds that the

Quebec sovereignty is the primary goal of

Quebec state is capable of sustaining a stable

nationalist groups, however they have previously

economy and government system.70

stated that indigenous groups within their

There is a valid argument that Quebec sovereignty should be placed in the legal background until the Indigenous people gain the right to be independent of Canada. Reg Whitaker wrote about how colonization is not only the physical occupancy of someone else’s land, but the appropriation of other’s political authority, cultural self-determination, economic capacity and strategic location.71 This argument has merit in light of the current debate the Indigenous right to self-determination should be the primary focus of sovereignty claims in Canada.

borders would become Quebecois and not have the right to self-determine their own state.73 In order to maintain and promote equality in the nation, it is imperative that the Canadian state allows all groups advocating for selfdetermination their sovereign rights. If Quebec is given this opportunity, without the same being granted to the Indigenous People, Canada faces a legal double standard. It is imperative that Canada does not breach what constitutes a state as defined in the Montevideo Convention 1933.74 Granting the state of Quebec sovereignty would set a dangerous precedent which would allow

The aboriginal right to self72

determination is based on the principle of selfdetermination of peoples which is included in the International Covenant on Civil and Political

69

Supra note 5. Tim Mowrey and Alain Pelletier "Referendums in Canada: A Comparative Overview", (January 2001) Electoral Insight online:< http://www.elections.ca/res/eim/article_search /article.asp?id=87&lang=e&frmPageSize>. 71 Supra Note 3 at Page 57. 70

The International Covenant on Civil and Political Rights (ICCPR) states that "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. "United Nations Covenant on Civil and Political Rights". United Nations Human Rights. 23 March 1976. Article 1 73 Mary Ellen Turpel-Lafond, “Qui the People: Conflicting Visions of Self-Determination in Quebec” (1996) York University Library 120129. 74 Convention on the Rights and Duties of States , 26 December 1933, Organization of American States, at http://www.oas.org/juridico/english/treaties/a40.html

37 |CUJLS 2015


them sovereign reign over their lands. This in

Canadian imposed law; law that they do not

turn could cause the greater division of Canada

recognize.

into smaller less stable new states.75 THE ENDOGENEITY TRAP One of the most challenging aspects that

Social movements, such as the one for self-determination, need to work outside of the law that is currently oppressing the Indigenous

Indigenous people face within the Canadian

people.77 Robert Lovelace explained, that

legal system relates to the circular endogeneity

positive change cannot be achieved for the

trap. This cycle begins when the Indigenous

Indigenous people under the terms of the law

people seek self-determination from the

which oppresses them.78 Here the law is

Canadian state through the confines of the law

contradictory by offering opportunities for self-

itself. The endogeneity trap occurs where the

determination while defeating them in its

law is both posing the contradiction in the first

attempt to control the way change is achieved.

place, then offers a chance for change as defined

Quebec found a way to gain their sovereignty by

within the law itself. However, the change

virtue of the fact that the province recognized

within the law does not provide any real identity

and abided by Canadian law.79 Social

or change.76 Changing the law from within the

movements that try and gain legitimacy from the

law for the benefit of a group outside of the state

law cannot create the required change because

creates this legal paradox. This trap confines and

the law was created to maintain colonialism.80

minimalizes any chance of indigenous people gaining their political cultural and social freedom. It does this by forcing the Indigenous people to recognize and succumb to the

75

Four requirements being: a permanent population; a defined territory; government; and the capacity to enter into relations with the other states. 76 Supra Note 1.

Robert Lovelace, “Prologue. Notes from Prison: Protecting Algonquin Lands from Uranium Mining” online :< http://www.ubcpress.ca/books/pdf/chapters/20 09/SpeakingforOurselves.pdf>. 78 Ibid. 79 Supra note 2 at page 81. 80 Bob Rae, “The courts have spoken on aboriginal rights. The government must act”, The Globe and Mail (November 14, 2014) online: <http://www.theglobeandmail.com/globedebate/the-courts-have-spoken-on-aboriginalrights-governments-mustact/article21585198/> 77

38 |CUJLS 2015


With this trap in perpetual motion, there can

peoples’ right to self-determination. Shiri

never be a decolonization of Canada; it will be

Pasternak hypothesises that there has to be more

unlikely that Indigenous people will be able to

than one sovereign law governing Canada.83In

self-determine their independence from the

line with this theme, it is the view of the author

Canadian state.

that there should be a hybrid legal84 device that

CONCLUDING REMARKS

ensures that Indigenous laws and values are reflected in the Canadian legal system. Ideally a

A nation can define their citizenship system similar to the Australian system of sui when a confederation representing a majority of generis85 would import indigenous rights and people comes together to create a state that views into the Canadian legal system.86 Australia advocates peace, order and good government.2581As an economic and political

was founded similarly to Canada in regards to the blatant disregard for the Indigenous peoples

power in the new era of globalization, Canada and their inherent right to their land. However, has to solve their domestic problems rather than the landmark case of Mabo v ignore them. Quebec has had two national Queensland87(Mabo) significantly altered the referendums and on both occasions the citizens way in which Australia conceptualizes colonial voted not to separate Quebec form the rest of Shiri Pasternak, “Jurisdiction and Settler Colonialism: Where Do Laws Meet?” (2014) 29:2 Canadian Journal of Law and Society 145. 84 Hybrid Legal Device meaning a convergence of legal systems. Takin the current Canadian systems and weaving in Indigenous legal and political views and practices. 85 Sui generis: meaning unique separate set of laws. Taking the current Canadian laws and weaving in Indigenous laws to create an entrenched living constitution reflecting all members of society. 86 Michael Davis, "Indigenous People and Intellectual Property Rights" (1996-1997) Social Policy Group, online at:<http://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Li brary/pubs/rp/RP9697/97rp20> 87 Mabo v Queensland (No. 2) (1992) 175 CLR 1 at 50. 83

Canada.82 Given this perpetual result, Quebec does not have the social power to separate from their nation state. The Indigenous right to selfdetermination has never held national attention like the Quebecois plight. Attention breeds conversation which in turn, creates the opportunity for recognition of the Indigenous

81

82

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Supra Note 10.

39 |CUJLS 2015


occupation.88 Importantly, the rejection of terra

it is argued that it is an out-dated legal entity that

nullius from Australian law made Australia the

subjugates and oppresses the Indigenous people.

‘international champion’ of indigenous land and

The endogeneity trap in the law perpetuates

native title claims.89 This would ensure that the

discriminatory practices within the state law,

endogeneity trap is broken and would provide a

thus continuing the subordination of the

platform for social change. An important aspect

Indigenous people.

in moving this issue forward is recognition for the past and the current plight for sovereign rights.90 In conclusion, it would be inadvisable to give Quebec, whose culture and history share the benefits of colonization, state sovereignty while the Indigenous peoples hold no political or legal power over their traditional land. The right to Indigenous peoples’ self-determination is one of cultural and legal importance, and cannot be overlooked in favour of Quebec sovereignty just because the indigenous are a smaller more oppressed group. The endogeneity trap further emphasizes the dilemma that the indigenous people face. Finally, by discussing the possible solutions to sovereignty and its role in the future,

88

Ibid 90. International Covenant on Civil and Political Rights, 999 UNTS 171 and 1057 UNTS 407 / [1980] ATS 23 / 6 ILM 368, 1967, Article 1. 90 Supra at Note 27. 89

40 |CUJLS 2015


BIBLIOGRAPHY CASES Mabo v Queensland (No. 2) (1992) 175 CLR 1. LEGISLATION Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. International Covenant on Civil and Political Rights, 999 UNTS 171 and 1057 UNTS 407 / [1980] ATS 23/ 6 ILM 368, 1967, Article 1. INTERNATIONAL DOCUMENTS Convention on the Rights and Duties of States, 26 December 1933, Organization of American States, at <http://www.oas.org/juridico/english/treaties/a-40.html.> SECONDARY SOURCES Coulthard, Glen “Subjects of Empire: Indigenous Peoples and the 'Politics of Recognition' in Canada” (2007) 6 Contemporary Political Theory 437–460. Davis, Michael "Indigenous People and Intellectual Property Rights" (1996-1997) Social Policy Group, online at: <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/ Parliamentary_Library/pubs/rp/RP9697/97rp20> Grady, P "What about the Aboriginal Peoples" Global Economics Ltd. online: <http://www.globaleconomics.ca/dth.chap7.html> Green, Joyce “Decolonization and Recolonization in Canada” in Wallace Clement & Leah Vosko eds..Changing Canada: Political Economy As Transformation (McGill-Queen’s, 2003) 53. Johnston, Darlene “First Nations and Canadian Citizenship” in William Kaplan, ed., Belonging: The Meaning and Future of Canadian Citizenship (Kingston: Mc-Gill-Queen’s University, 1994) 349. Lovelace, Robert “Prologue. Notes from Prison: Protecting Algonquin Lands from Uranium Mining” online:<http://www.ubcpress.ca/books/pdf/chapters/2009/SpeakingforOurselves .pdf>. Mowrey, Tim and Pelletier, Alain "Referendums in Canada: A Comparative Overview", (January 2001) Electoral Insight online at: <http://www.elections.ca/res/eim/article_ search/article.asp?id=87&lang=e&frmPageSize>. Pasternak Shiri, “Jurisdiction and Settler Colonialism: Where Do Laws Meet?” (2014) 29:2 Canadian Journal of Law and Society. Rae, Bob “The courts have spoken on aboriginal rights. The government must act”, The Globe and Mail (November 14, 2014) online: <http://www.theglobeandmail.com/globe-debate/the-courts-havespoken-on-aboriginal-rights-governments-must-act/article21585198/> 41 |CUJLS 2015


Turpel-Lafond Mary Ellen, “Qui the People: Conflicting Visions of Self-Determination in Quebec” (1996) York University Library 120-129 Whitaker, Reg “Sovereignties Old and New: Canada, Quebec, and Aboriginal Peoples” (1999) 58 Studies in Political Economy 69-94. Young, Robert, Andrew “The Secession of Quebec and the Future of Canada” (1997) McGill-Queen’s University Press.

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We Find No Solace: Glen Coulthard’s Politics of Recognition in

Tsilhqot’in Nation v. British Columbia Sarah Nixon In the summer of 2014, the Supreme

been forced to shift its tactics when confronting

Court of Canada released its decision in

Indigenous demands for self-determination. He

Tsilhqot’in Nation v. British Columbia. In this

explains: “whereas before 1969 federal Indian

decision, Chief Justice Beverley McLachlin

policy was unapologetically assimilationist, now

asserts that “Aboriginals and non-Aboriginals

it is couched in the vernacular of ‘mutual

are ‘all here to stay’ and must of necessity move

recognition’.”93

forward in a process of reconciliation.”91 This

Coulthard sees this paradigm as

assertion, while it may seem commonplace and

problematic because it maintains the colonial

logical, reveals support for a problematic

power relationship between the state and

strategy which would achieve a deficient vision

Indigenous peoples. Within this recognition

of freedom, equality and justice for Indigenous

paradigm, Indigenous claims for self-

peoples in Canada. In his book Red Skin, White

determination may only be recognized insofar as

Masks Glen Coulthard argues against the pursuit

the colonial state deems them to be legitimate.

of the conciliatory “politics of recognition” in

When Justice McLachlin calls for a process of

which Justice McLachlin engages.92 Coulthard

reconciliation, one must wonder upon whose

argues that following the failed introduction of

terms this process will be founded, and who will

the White Paper in 1969, the Canadian state has

determine when ‘reconciliation’ is complete. A

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256 [Tsilhqot’in].

reorganization of the colonial relationship

Glen Coulthard, “Introduction: Subjects of Empire” in Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota, 2014) 1 – 24.

between Indigenous peoples and the Canadian

91

92

state, achieved through this politics of 93

Ibid at page 3.

43 |CUJLS 2015


In the decision of Tsilhqot’in, an

recognition, finds expression in the decision of Tsilhqot’in more broadly. Despite the seemingly

Indigenous community comprised of six nations

progressive decision to grant title to the

in the British Columbia interior is granted title to

Tsilhqot’in Nation and declare the British

a portion of their traditional land.95 This decision

Columbia government to have breached its duty

was reached by a provincial trial judge over the

to consult, the decision in this case nonetheless

span of five years of rigorous research and

maintains the unequal power relation between

review of evidence.96 Both the provincial and

the Canadian government and this Indigenous

federal governments opposed the judge’s

community.94 The judges in Tsilhqot’in engage

decision to grant title, arguing that occupancy of

in this problematic politics of recognition as the

the land sufficient to justify the court’s granting

federal government retains ultimate authority

of title had not been established. 97 On this basis

over how title land can legally be used, and as

the provincial and federal governments appealed

the Supreme Court is portrayed to be the

the decision. At the British Columbia Court of

legitimate arbiter of this decision. This case’s

Appeal it was decided that title had not in fact

seemingly progressive outcome should also be

been established, through the application of a

understood as dangerous because it serves to

much narrower and more burdening test for

marginalize more radical demands for a nation-

sufficient, continuous and exclusive occupancy

to-nation relationship between Indigenous

of land – the categories laid out for

peoples and the Canadian state.

establishment of Aboriginal title in Delgamuukw

“Duty to consult” refers to a legal obligation borne by the provincial government of British Columbia in this case, and by all provincial governments and the federal government generally. This duty arises from s. 35 of the Constitution and was interpreted in Haida Nation v. British Columbia (Minister of Forests) to denote a duty for consultation by any group proposing to undertake actions which directly effect Indigenous peoples’ land, whether title has been granted or remains in a process of negotiation. Any proposed action must receive consent from the effected Indigenous group, unless it can otherwise be justified by legal precedents such as the Sparrow test to be discussed later on. 94

v. British Columbia [1997].98 At the Supreme Court of Canada it was ruled that the Court of Appeal had misjudged the case, as it did not rely

95

Supra note 1 at para 153. Ibid at para 7. 97 Ibid at para 6. 98 Ibid at para 27-8; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para 143, 153 DLR (4th) 193 [Delgamuukw]. 96

44 |CUJLS 2015


upon a finding of error made by the trial judge,

intervention on land is “consistent with the

and used a test which misrepresented what

Crown’s fiduciary obligation to the group.”102 A

should be understood as sufficient use and

legal precedent for the acts which might be

ownership of land to establish title.99

justified under this framework is set out in

Specifically, the Supreme Court recognized the

Delgamuukw where “the development of

importance of a “culturally sensitive” approach

agriculture, forestry, mining, and hydroelectric

to considerations of land use.100 On these

power, the general economic development of the

findings, the court ruled that the Tsilhqot’in

interior of British Columbia… the building of

Nation had established title and that the British

infrastructure and the settlement of foreign

Columbia government had breached its duty to

populations to support those aims” are listed.103

consult the Tsilhqot’in people when it issued

The Court in Tsilhqot’in also repeatedly defines

logging licenses for this contested land to

title as a burden upon the Canadian government

various companies.101

“to obtain the consent of the Aboriginal title

Although at first this decision may seem

holders” when seeking to use the land.104

to grant Indigenous peoples fair rights to land,

However when consent is not obtained, the

an important caveat is maintained on the part of

Court grants the government the right to proceed

the government which demonstrates that,

without consent if it can justify its own actions,

legally, the ultimate ownership of the land

in its own court, under s. 35 of the Constitution

resides with the state. The Supreme Court rules

Act, 1982 – its own constitutionally entrenched

that the government of Canada retains the right

legislation.105 Thus any of the extractive or

to intervene on Indigenous land without consent

industrial pursuits delineated in Delgamuukw are

if the objective is proven to be “compelling and

legally enshrined as possible causes for which

substantial,” the duty to consult and

102

Ibid at para 77. Supra note 6 at para 165. 104 Supra note 1 at para 76. 105 Ibid at para 77. The Constitution Act, 1982 Schedule B to the Canada Act 1982 (UK). 103

accommodate has been executed, and the 99

Supra note 1 at para 60. Ibid at page 260. 101 Ibid at para 153. 100

45 |CUJLS 2015


title may be infringed. As such, title is made to

applicable constitutional restraints.”107 These

be a legalistic, conceptual ‘privilege’ granted by

constitutional restraints, listed under s. 35, were

the colonizing force of the Canadian settler state,

qualified in R. v. Sparrow [1990] as implying a

and maintained only until this same state decides

necessary two-step analysis when deciding if an

that its interests override those of the title

infringement of title is justifiable.108 This

holders. Thus title, when deconstructed in this

procedure again opens the terrain of legality to

manner, is seen to be merely a reorganization of

enable the province a justification of

the relationship between Indigenous peoples and

“‘compelling and substantial’ purpose,” checked

the state which “remains[s] colonial to its

by the fiduciary obligation of the Crown to

foundation.”106 Further, despite the decision in

Indigenous peoples whose rights stand to be

this case that logging is not, in fact, a reasonable

infringed.109 But, as Arthur Manuel writes, “the

objective to justify the infringement of

federal and provincial government tag team

Aboriginal title, it remains true that the manner

against Indigenous Peoples in court cases despite

in which this decision is constructed leaves

the fact that Canada has a fiduciary

space for similar projects to be approved in the

responsibility to Indigenous Peoples. So we find

future.

no solace in the court referring to the fiduciary Again, the decision of Tsilhqot’in fails

responsibility in [Tsilhqot’in].” One may

to disrupt this colonial relationship as the judges

extrapolate that the supposed guarantee of a

rule that, pursuant to the Constitution Act, 1867,

fulfilled fiduciary obligation on the part of the

the provincial government retains the right to

provincial government which wishes to

amend its land regulatory legislation – in this case, The Forest Act – to be applicable to Aboriginal title lands “provided it observes

107

Supra note 1 at para 116. Forest Act, R.S.B.C. 1996, c. 157. The Constitution Act, 1867 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5. 108

106

Supra note 2 at page 6.

Supra note 1 at para 13; R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 DLR (4th) 385. 109 Supra note 1 at para 13.

46 |CUJLS 2015


contravene title rights does not hold much

as the severity of its proposed intervention.112

weight.

Rather than maintaining that Indigenous The Court in Tsilhqot’in thus solidifies

communities who have established title therefore

the ultimate legal power of provincial

retain the right to determine exactly what will

governments over Indigenous peoples, despite

and will not happen on their land, regardless of

any equalizing pretensions of this decision. So

the perceived severity of these actions by the

long as amendments legalizing access to title

settler government itself, the Court again

lands for the provincial government are decided

qualifies and diminishes the actual rights granted

to fulfill “pressing and substantial” objectives, in

by title.113 This paternalistic and dominating

line with a token fiduciary obligation, the

policy is also indicative of the merely

Supreme Court affirms that these amendments

reorganized rather than abolished coloniality of

are legal.110 Here Coulthard’s concern about the

the relationship between settler government and

lack of emancipatory potential in seeking legal

Indigenous community.

recognition of Indigenous rights by the settler state is proven valid. Also illustrative of the lack of freedom

Moreover, the politics of recognition at play in Tsilhqot’in demonstrate an inherent insufficiency in the seeking of recognition – and

actually granted to the Tsilhqot’in Nation in this

importantly, solidified and incontravenable

decision is the Court’s referral to a spectrum

rights – from Canada “as a structure of

meant to indicate when a duty to consult is

domination predicated on [the] ongoing

actually mobilized.111 This informal spectrum

dispossession” of Indigenous peoples.114 As

delineates a range of low to high obligation for

Coulthard argues, the Canadian state is not

the state to consult title holders, which

designed to enable self-determination,

corresponds to what the Canadian state perceives

independence, or a self-defined freedom for Indigenous communities as it draws its 112

110

Ibid. 111 Ibid at para 17.

Ibid. Ibid. 114 Supra note 2 at page 23 (emphasis in original). 113

47 |CUJLS 2015


legitimacy and very existence from the denial of

expression still today, as land is appropriated in

Indigenous sovereignty.115 Canada’s claim to

“the escalating onslaught of violent, state-

radical title is demonstrative of this

orchestrated enclosures following

incompatibility. This claim rests upon a belief

neoliberalism’s ascent to hegemony.”118

that the arbitrary assertion of European

Coulthard refers to this continuous process as

sovereignty on this continent translated to a

“accumulation by dispossession.”119 In light of

reality in which Indigenous claims to land that

this theory of dispossession inherent to the

had been theirs since time immemorial were

Canadian state, an appeal to this state for

only legitimate if they could be proven, using

meaningful recognition is proven both doomed

standards delineated by the colonial state

to fail and, by its very nature, reductive of the

through land claims processes. As Manuel

true character of Indigenous sovereignty which

writes, Canadian settlers “claim rights to live on

has so long been denied. Recognizing these two

our land based on the racist legal concepts of

truths, Coulthard calls instead for the pursuit of

500 years ago.”116

self-affirmation by Indigenous communities,

Coulthard relies on Marx’s theory of “primitive accumulation” when making this

which would operate independent of any approval by the settler government.120

argument about the inherent coloniality of the

As such, Coulthard would problematize

Canadian state.117 However, he qualifies this

Tsilhqot’in at its most basic level: in its appeal to

theory by explaining that the initial

the settler state for a decision on the legitimacy

dispossession of land integral to colonialism is

of the Indigenous nation’s claim to its own land.

not contained to a historical past but finds

In doing so, this colonial relationship is maintained, as the settler legal system is lent

115

Ibid. Arthur Manuel, “The Tsilhqot’in Decision and Indigenous Self-Determination,” New Socialist Webzine (25 January 2015), online: <http://www.newsocialist.org/785-the-tsilhqot-indecision-and-indigenous-self-determination>. 116

legitimacy in deciding the degree to which Indigenous law and authority are valid. Arthur 118

Ibid at page 9. Ibid at page 20. 120 Ibid at page 24. 119

117

Supra note 2 at page 7.

48 |CUJLS 2015


Manuel challenges this framework, writing:

maintained on the periphery of discourse and are

“Aboriginal title is the radical or underlying title

discounted as unnecessary.123 In this way,

in Canada…. Indigenous Peoples must not

Tsilhqot’in may be seen as pacifying in that it

accept that Canada has radical title and we do

appears to result in due recognition of the rights

not accept that our proprietary or Aboriginal

of this Indigenous community, while it in fact

Title is a burden on the Crown. If anything it is

consolidates the power of the Canadian state to

Crown title, or any property rights they grant,

contravene these rights using its own unilateral

that are a burden on Aboriginal title.”121 By

legal constructions.

bringing the question of who rightfully holds

Coulthard is careful to note that when

title to land to the settler Supreme Court as

Indigenous peoples make claims for their rights,

arbiter of the decision, Tsilhqot’in is engaged in

they do not seek these affirmative actions but

a politics of recognition which automatically

instead begin with transformative demands for

validates the constructed superiority of the

“more equitable distribution of land, political

settler state, rather than asserting an equal,

power, and economic resources.”124 However,

nation-to-nation relationship.

the settler-colonial context of accumulation by

Tsilhqot’in would also trouble Coulthard

dispossession causes these demands to be

as the decision marginalizes more radical

curbed.125 This is due to the presence of a

demands for the redistribution of power and

colonial entity which will not withdraw from the

wealth between Indigenous and non-Indigenous

physical area, and which maintains its power to

people in Canada.122 As the seemingly

dominate, refusing to fulfill the demands made

egalitarian decision of the case is heralded in

of it or responding with marginal, pacifying

settler society and by some Indigenous people,

‘improvements’.126 To escape this dominating

the “affirmative” character of the decision is

relationship, Coulthard calls for processes of

bolstered, while “transformative” demands are 123

Ibid. Ibid. 125 Ibid. 126 Ibid at page 20. 124

121 122

Supra note 23. Supra note 2 at page 19.

49 |CUJLS 2015


self-affirmation.127 Rather than seeking the

management of conflicts over land between

recognition of the settler state, Coulthard advises

Indigenous peoples and the Canadian state. The

that Indigenous peoples assert their own

Court’s decision to read the standards for

authority in matters which pertain to them, and

establishment of title generously and in a

assert the legitimacy of their own claims to land

manner consistent with the cultural

especially.128 In the case of Tsilhqot’in

characteristics of the Indigenous group being

Coulthard might suggest that rather than

judged, as well as with regard to the features of

litigating to prove that logging licenses were

the land discussed, signifies a great deal of

wrongly granted to companies for Xeni Gwet’in

progress from earlier explicitly racist

land, the people of the Tsilhqot’in Nation should

judgements.129 Also, the ruling that British

have continued their blockading and direct

Columbia did in fact breach its duty to consult

resistance to these incursions. This suggestion

with the community while its claim to land was

may give rise to arguments for the pragmatism

uncertain signifies similar progress.130 The

of seeking reconciliation with and validation by

decision that the harvesting of timber was not a

the Canadian state, however, attempted solutions

reasonable objective to justify this infringement

which follow these avenues engage in a politics

on title in this instance is also a positive feature

of recognition which is doomed only to

of the decision.131

reorganize the colonial relationship rather than to end it. This being understood, there is also

However, these incremental improvements to the way in which Indigenous land claims are treated still rely upon a colonial

space to appreciate positive aspects within the

logic, and serve to maintain colonial domination.

decision of Tsilhqot’in. Certainly progress has

The underlying understanding of an appropriate

been made in the past few decades to take a less

relationship between the state and the

Eurocentric and colonial approach to the

Tsilhqot’in Nation is still characterized by the 129

127

Ibid at page 24. 128 Ibid.

Supra note 1 at para 29 to 50. Ibid at para 153. 131 Ibid at para 124. 130

50 |CUJLS 2015


use of a caveat upon title rights, which gives the

Indigenous authority, and a demand for a nation-

state the final word on what will and will not be

to-nation relationship between the state and

deemed appropriate for it to do both on and to

Indigenous communities. One must be attentive

Indigenous land. Such results are inevitable

to the differences between this “resurgent

when engaging in a politics of recognition, as

politics” and a politics of recognition when

these politics lend the state its legitimacy by

evaluating strategies to improve the

seeking its permission for the exercise of

circumstances in which many Indigenous

Indigenous authority.

communities have been placed.135 For instance,

Coulthard offers alternative solutions

the Royal Commission on Aboriginal Peoples,

such as widespread mobilization through Idle No

which released a report containing many

More, which emerged in the early winter of

recommendations for action to ameliorate the

2012 and has grown to be the largest movement

situation of Indigenous peoples and improve

for Indigenous sovereignty and environmental

their relationship with the state, may also be

protection in Canada’s history.132 Coulthard also

problematized for what Manuel calls an

calls for urgent and diverse undertakings in

“assimilationist imperative.”136 The paternalistic

“self-actualization, direct action, and the

and affirmative actions suggested in this report

resurgence of cultural practices.”133 Arthur

do not fundamentally disrupt but rather

Manuel echoes this sentiment in writing that the

reorganize the colonial relationship in the same

marginal recognition granted by the Supreme

manner as Tsilhqot’in. As such, in order to

Court in Tsilhqot’in may be viewed as a catalyst

address Coulthard’s concern and move toward

for “Indigenous Peoples to implement the

the actual emancipation of Indigenous peoples in

decision and our jurisdiction on the ground.”134

Canada, this relationship must be both identified

Here both authors are calling for the assertion of

and denounced in all its forms.

Idle No More, “The Story,” Idle No More (7 August 2015) online: <http://www.idlenomore.ca/story>. 133 Supra note 2 at page 24. 134 Supra note 23. 132

135 136

Supra note 2 at page 24. Supra note 23.

51 |CUJLS 2015


Therefore, the politics of recognition

landmark or watershed case for Indigenous

which Coulthard sets out to deconstruct and

communities as it maintains that their rights are

delegitimize in Red Skin, White Masks is at play

still subject to the discretion of the state. In order

within Tsilhqot’in. Despite Canada’s political

to escape this relationship of domination, what is

and societal veneer of liberalism which is

instead necessary is a focus on self-affirmation

comprised of decisions such as this, the colonial

by Indigenous peoples through which they may

relationship between the state and Indigenous

gain their own freedom by asserting their own

communities is alive and well. Tsilhqot’in, while

legitimate authority.

a unique decision in some respects, is no BIBLIOGRAPHY LEGISLATION The Constitution Act, 1867 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5. The Constitution Act, 1982 Schedule B to the Canada Act 1982 (UK). Forest Act, R.S.B.C. 157.

1996, c.

JURISPRUDENCE Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 153 DLR (4th) 193. R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 DLR (4th) 385. Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256. Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511.

SECONDARY MATERIAL Coulthard, Glen. “Introduction: Subjects of Empire” in Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota, 2014) 1 – 24. Idle No More, “The Story,” Idle No More (7 August 2015) online: <http://www.idlenomore.ca/story>. Manuel, Arthur. “The Tsilhqot’in Decision and Indigenous Self-Determination,” New Socialist Webzine (25 January 2015), online: <http://www.newsocialist.org/785-the-tsilhqot-in-decision-andindigenous-self-determination>.

52 |CUJLS 2015


-----------------------Perspectives on Bill C-51 ------------------------

53 |CUJLS 2015


The Contemporary Legal Garrison in an Age of Fear: A Critical Analysis of Bill C-51

Marlo Collier Prime Minister Harper made a speech

individuals and groups by constructing them as

after the Parliament Hill shootings in October of

“internal” and “external” threats to society. By

2014 and fiercely vowed a change in legislation

incorporating insight from various scholars, case

to increase protection of Canadians. “They will

law, and parliamentary discourse, this paper will

have no safe haven,” Harper stated. In the

analyze and deconstruct the problematic rhetoric

months that followed, the country was

and elements of Bill C-51. An analysis of Bill C-

introduced to a bill that alleged to uphold

51 is crucial as its amendments and added

Harper’s promise to “take all necessary steps to

provisions deeply implicate all Canadians, and

identify and counter threats”.137 Bill C-51, also

appear to be a contemporary example of extreme

referred to as the Anti-terrorism Act (2015),

security measures.

includes five distinct sections that function to introduce new provisions and amend existing legislation to address Canadian national security.138 Although Bill C-51 claims to enforce the safety and protection of Canada, this paper will argue that the bill serves to “other” certain 137 Prime Minister of Canada Stephen Harper, Latest News: Statement by the Prime Minister of Canada in Ottawa (Ottawa, 2014), online: Prime Minister of Canada Stephen Harper <http://pm.gc.ca/eng/news/2014/10/22/statement-primeminister-canada-ottawa>. 138 Bill C-51, Anti-terrorism Act, 2nd Sess, 41st Parl, 2014 (First Reading).

This critical analysis will look at the ways Bill C-51, the Anti-terrorism Act (2015), creates a dichotomy between Canadians supposedly protected by the act, and those whom the act targets (individuals deemed to be “threats”). The bill’s vague and excessively broad definition of what constitutes a threat to national security inherently labels political dissidents, aboriginal movements, and types of 54 |CUJLS 2015


protesters as threats. Secondly, Bill C-51’s

information (belonging to individual Canadians)

strategic use of fear and altered thresholds for

may be obtained by branches of the Canadian

crimes of terrorism will be analyzed as a

government.139 The Secure Air Travel Act is

technique to build nationalism while

enacted in the second section, wherein new

strengthening the “us” and “them” distinction.

crimes are outlined concerning breaches of air

Lastly, the ammendments in the fifth section of

travel guidelines.140 This section additionally

the bill will be discussed as it further

looks at the process ministers follow to place

marginalizes security certificate detainees in

individuals on the “no fly list”, and subsequently

Canada.

the process by which said individuals may The proposed Anti-terrorism Act,

appeal their status.141 The third section of the bill

heavily critiqued by the Canadian public and

amends portions of the Criminal Code to change

representatives in Parliament, has now officially

thresholds of offence definitions as well as

passed its final stage - the third reading in the

adding the offence under s. 83.221 of

Senate wherein Senators vote to pass or reject

“knowingly advocating or promoting the

the bill. Those in favor of the bill argue that its

commission of terrorism offences in general”.142

intent is to effectively prevent and cease activity

The extension of CSIS powers is contained

that seeks to undermine Canadian security. Bill

within section four, amending sections of the

C-51 contains five sections, each of which is

Canadian Security Intelligence Service Act. The

concerned with a specific aspect of national

bill motions Canadian Special Intelligence

security measures or existing legislation. While

Services (CSIS) agents to “take measures, within

not all of the sections of the bill will be explored

or outside Canada, to reduce a threat to the

in depth in this analysis, the following will

security of Canada…” and continues to describe

provide a brief summary of each of the proposed changes and additions. The first section, the Security of Canada Information Sharing Act,

139 Ibid at cl 2. 140 Ibid at cl 11. 141 Ibid at cl 11(15).

details the circumstances under which

142 Ibid at cl 16.

55 |CUJLS 2015


processes involving warrant procedure.143 The

however, this is important to keep in mind as it

final section of Bill C-51 amends the

dramatically limits the recursive action that

Immigration and Refugee Protection Act (IRPA)

labeled “threats” may be able to bring against

(the act that governs the use of security

the state.

certificates in Canada) by further limiting the

A view common to advocates of Bill C-

information viewed by the counsel of the

51 would assert that national security as an

detained individual.

important mechanism to ensure the country’s

It is important to note that one of the

well being and to protect the human rights of

troubling aspects of this bill is that although this

those within Canada from terrorist attacks

bill outlines an extension of powers for certain

internally. While this paper does acknowledge

Ministers and CSIS agents, the bill outlines

this perspective, it will rather focus on the social

absolutely no oversight mechanisms for these

costs of these measures and whether true

agencies.144 The increase of CSIS jurisdiction for

security must entail deliberate rights

example is alarming as special services do not

infringements of those labeled as “threats”.

require a review board to be in place – this is

Certain passages and rhetoric used in the context

different from the reviews that exist for police

of various sections will be explored to provide a

officers.145 This particular omission from Bill C-

unified overview of the ways this document

51 therefore means there are no systems in place

establishes populations as threats.

to ensure agents of the state comply with the

The language used within the Security of

Charter of Rights and Freedoms and limitations

Canada Information Sharing Act (section one of

set out in the bill. This paper will not explicitly

Bill C-51) is astoundingly vague and creates an

focus on the lack of oversight that exists;

overextension of the definition determining what

143 Ibid at cl 42(12.1)(1).

constitutes a threat to national security. By

144 National Post, 'Open letter to Parliament: Amend C-51 or kill it', (2015), online: <http://news.nationalpost.com/2015/02/27/open-letter-to-parliamentamend-c-51-or-kill-it/>.

“internal threats”, this paper refers to the labeling of persons within Canada, or

145 Canadian Bar Association, Bill C-51, Anti-terrorism Act, 2015 (Ottawa: Canadian Bar Association, 2015) 16.

movements within the country, which the state 56 |CUJLS 2015


deems to be challenging state security. As

this excessive breadth. Section (f), for example,

defined by this bill, “internal threats” would

considers people to be undermining security if

include, “‘activity that undermines the security

they are interfering with critical infrastructure.148

of Canada’ means any activity…if it undermines

While this may seem clear in theory, this

the sovereignty, security or territorial integrity of

definition does not specify the ways the

Canada or the lives or the security of the people

“infrastructure” can be interfered with, and

of Canada…”146 This overly broad definition is

moreover, does not account for protests that may

problematic due to its subjective and all-

occur in the proximity of “critical

encompassing nature as will further be

infrastructure”. This term is problematic because

explained. Following this definition is a list of

an interpreter of this bill has the leeway to target

nine criteria to describe various examples of

certain “othered” groups of people. An

what “undermining the security of Canada”

interpreter may decide that environmental

entails in the intended jurisdiction of the bill.

protests near natural resource extraction

Interestingly, the definition includes a clause

facilities could be deemed to undermine the

claiming that the definition itself does not

security of Canada, under section (f) of this

include “lawful advocacy, protest, dissent and

definition.

artistic expression”; however, this paper

There exists long-standing policing bias

maintains that these groups are still subtly being

against Indigenous peoples, from the dawn of

labeled as “threats” by way of inclusion into this

the RCMP onwards, and the following section of

overarching definition.147

the definition may provide a caveat for

Not only is the terminology selection of

continued oppression.149 Section (b) of the

“undermining the security of Canada” open for

definition further describes that influencing the

interpretation, but the bill also contains

government “by force or unlawful means”

numerous subsections that continue to mirror 148 Ibid. 149 Todd Gordon, 'Canada, Empire and Indigenous People in the Americas' 146 Bill C-51, supra note 2 at cl 2.

(2006) 2:1 Socialist Studies, 52.

147 Ibid.

57 |CUJLS 2015


constitutes a threat to security.150 In this way,

defined as financial stability and territorial

there is no determinant for what actions would

integrity.”153 One can hope that this bill is not an

be deemed “unlawful”, showing that expressions

“institutional feature of a colonial state”, but the

of protest by Indigenous communities or specific

lack of clarity within the rhetoric cannot

movements could arguably be arbitrarily named

guarantee that Canada’s Indigenous people will

unlawful. There have been accounts of peaceful

not be targeted.154

protesters being arrested for unlawful organizing

These definitions of the criteria for acts

despite evidence of them acting in accordance

deemed to be “undermining the security of

with the law.151 Mi’kmaq lawyer and Chair of

Canada” deviate from pre-established

Ryerson University’s Centre for Indigenous

definitions of terror, but why? This is

Governance, Dr. Pamela Palmater, appeared

concerning, as Professor Kent Roach of the

before the Standing Committee on Public Safety

University of Toronto points out, as the bill

and National Security to present her concerns of

could have defined such activities by using

Bill C-51. Dr. Palmater is a social activist with

section two of the CSIS Act.155 By not adhering

no prior criminal history, and her involvement

to pre-established legislative definitions, Bill C-

with the Idle No More movement alone has

51 is looking to newly define threats to national

made her the target of CSIS and RCMP

security to encompass different groups as

surveillance.152 Dr. Palmater warns that any

“threats”. The section of the CSIS Act referenced

person could be constructed as a suspect since

is specific and seems to address acts of greater

the bill encompasses “any activity, any person,

intensity (although this cannot be simply

any purpose that threatens national security so

quantifiable).156 The broad construction of terror

150 Supra note 10. 151 Gary Kinsman & Pat Gentile, 'From the Canadian War on Queers to the War on Terror: Resisting the Expanding National Security State' in The Canadian War on Queers: National Security as Sexual Regulation, 1st ed (Vancouver: UBC Press, 2015) 429. 152 Canada, Parliament, House of Commons. Standing Committee on Public Safety and National Security. Minutes of Proceedings and Evidence. 41st Parl, 2nd Sess. No 057 (March 24, 2015) at 845.

153 Ibid at 915. 154 Gordon, supra note 13 at 61. 155 Canada, Parliament, House of Commons. Standing Committee on Public Safety and National Security. Minutes of Proceedings and Evidence. 41st Parl, 2nd Sess. No 055 (March 12, 2015). 156 Department of Justice, Canadian Security Intelligence Service Act (Government of Canada, 1985).

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in Bill C-51 creates the flexibility for the bill to

legislation as it now states that, “A person who

apply to a vast scope of individuals engaged in

fears on reasonable grounds that another person

ordinarily legal activity and label them as

may commit a terrorism offence may, with the

“others”.

Attorney General’s consent, lay an information

Much like the rhetoric and word choice,

before a provincial court judge [emphasis

the Anti-terrorism Act contains content that

added]”.158 Previously, the word “will” was used

works to utilize fear to maintain the established

in place of the above italicized “may”. The new

“difference” and binary among those who are

lack of certainty required for investigations into

deemed threats and those who the bill

terrorism charges drastically changes the breadth

supposedly protects.

of the section and also, is problematic in terms

A section that was added to the

of labeling “terrorists” arbitrarily.

provisions of the Criminal Code included s.

Scholars, Gary Kinsman and Pat

810.011 (1) wherein the fear of terrorism

Gentile, collaborated and wrote an article

offences can be reported by an individual and

looking at the racial elements that define terror

thus create subsequent investigations.157 While

and the ways in which the terror discourse

this seems sensible in theory since it allows the

focuses on “othering” Arab and Muslim men

public to report acts that could endanger others,

predominantly.159 This broad section of Bill C-

it is fundamentally troubling as it relies on the

51 socially constructs terror and terrorism to be

profiling of certain individuals. Terrorism has

recognized in conjunction with what we

not a face but rather, is related to the nature or

understand to be terrorists, through the media,

the scope of the acts committed, and by inserting

and shared narratives within the country. This

this provision in the Criminal Code, it will likely

creation of difference within Canada can lead to

serve to only increase the racism present in

social exclusion, political repression, and the

current society. The threshold of the wording

perpetuation of an “us” and “them” dichotomy.

within this section broadens the previous 158 Ibid. 157 Bill C-51, supra note 2 at cl 25(1).

159 Kinsman & Gentile, supra note 15 at 443.

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A concept formed by Eva Mackey

it possesses a section addressing amendments

further illustrates this binary between individuals

directly affecting security certificate detainees.

constructed as “threats” and the rest of society.

The fifth section of this Anti-terrorism Act

The “Garrison Mentality” is a striking depiction

functions to further restrict access to information

of settler nationalism, while also paralleling with

and evidence by the counsel of the detainee

contemporary contexts.160 The premise of this

under the security certificate.163 Within the

concept involves a settler group protecting

security certificate regime, persons believed to

themselves from the “wilderness” that lies

be threats to national security are indefinitely

outside of the settlers’ fort. In this metaphor,

detained and held against evidence to which they

Indigenous people were represented by the

are not privy. The Supreme Court heard a case in

surrounding “wilderness”, while the guards (the

2007, Charkaoui v. Canada (Citizenship and

RCMP in Canada) protected the settler

Immigration), which drew to attention the

population.161 In this current context, Bill C-51

unconstitutional nature of the imposition of

could be interpreted as being the protective legal

these indefinite detentions. In this case, Chief

weapons wielded by those guarding individuals

Justice McLachlin authorized a state-appointed

not deemed to be national security threats. In

representative, known as the special advocate, to

sum, there is clear perpetuation of nation-

view evidence before a judge and act as a “check

centered narratives that further ingrain the binary

and balance” in the interest of the detainee.164

within Bill C-51, showing that with the amended

Although the implementation of the special

Criminal Code section discussed, consequences

advocate system seems to be a sign of progress,

may worsen the current situation.162

the advocate is still not allowed to contact or

The continued oppression of those deemed to be “threats” is upheld by Bill C-51 as

share information with the detainee.165 By further restricting the information submitted to the special advocate and

160 Eva Mackey, House of Difference (London: Routledge, 1998) 16. 163 Bill C-51, supra note 2 at cl 57(1). 161 Ibid at 17.

164 Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9.

162 Ibid at 16.

165 Canadian Bar Association, supra note 9 at 37.

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implementing the proposed amendments, the bill

within the law. This slant favours a particular

seeks to further identify those detained as threats

party and does not allow fair or adequate access

by removing any discourse they may rely upon

to information as should be fundamentally

to challenge this assumption of guilt. This

allowed to those labeled as “threats”. Since these

process happens both because of the lack of

freedoms are being deprived of a certain group

transparency throughout IRPA’s security

of individuals, namely men whom are Arab or

certificate regime as well as through additional

Muslim, Bill C-51 seeks to further isolate these

measures being passed, like those discussed in

persons and depict them as external threats to

Bill C-51. This lack of disclosure is argued to be

Canadian security.

for the protection of national security and safety

The bill additionally contains an

– a claim that superficially seems valid. In the

amendment that seeks to change IRPA’s s. 9.1 to

2014 case, Canada (Citizenship and

provide ministers with the power of appeal at

Immigration) v. Harkat (another case regarding

absolutely any stage of the process, meaning that

the unconstitutionality of the security certificate

the mere application to appeal immediately

regime), the Supreme Court warned that

suspends the decision of the court.167 If the

exaggerations of this national security

minister feels that the release of any respective

confidentiality would have a detrimental

information of this process is “injurious to

infringement on the rights of those detained as

national security or endanger[s] the safety of any

well as the legal system as a whole.166

person”, they can freely omit this information

Subsection 83 (1) of the Immigration

under IRPA.168 This practice is not properly

and Refugee Protection Act will be amended

balancing the rights of the minister of Public

under Bill C-51, giving judges the power to

Safety and Emergency Preparedness with those

exempt the minister from sharing information

of the accused, further displaying that the

with the detainee, thereby edging the individual

surrounding system trying to pass this legislation

outside of what would constitute legal rights 167 Bill C-51, supra note 2 at cl 55(1). 166 Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 at 63.

168 Ibid.

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does not have the interests of those deemed to be

counsel but would function to further demobilize

“threats” in mind. The security certificate

the legal recourse available to the accused, thus

process (more generally) reifies these abstract

allowing society to continue to perceive these

targets, and these amendments attempt to ensure

individuals as threats.

those constructed to be “terrorists” are not allotted fair treatment before the law. The guise of national security prevails,

Upholding this dichotomy of “otherness” is fundamentally unfair, but this is likely the social cost Harper was willing to

hiding vague descriptions and unconstitutional

accept when he asserted that Canada would not

statements within the depths of Bill C-51. The

be intimidated by threats (internal or abroad) in

problematic content seeks to marginalize groups

his October 2014 national address.169 His claim

as “threats” and ensure those already labeled as

that, “They will have no safe haven” is a chilling

such remain. The specific language and rhetoric

phrase considering the variability and broadness

of the Security of Canada Information Sharing

encapsulated in the word “they”. 170 This

Act displays intentional broadness to encapsulate

ambiguous yet threatening statement is

groups like environmental or Indigenous

accurately mirrored in Bill C-51, and as it comes

activists and protesters, and liken them to

into force, many Canadians will unfortunately be

“threats to national security”. Proposed

subject to its power. Individuals can only hope

amendments to wording in the Criminal Code

to avoid being labeled as a threat, but until then,

seek to ensure persons suspected of planning to

we shall remain huddled in this “protective”

commit a terrorist offence will be met with

legal garrison, awaiting a better, safer world

action – this process not only establishes a “Garrison Mentality”, but further shows the bill’s preferable vague construction of terror. Finally, the sections of IRPA that are included in Bill C-51 claim to protect the public by 169 Prime Minister of Canada Stephen Harper, supra note 1.

withholding information from the opposing

170 Ibid.

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BIBLIOGRAPHY LEGISLATION Bill C-51, Anti-terrorism Act, 2nd Sess, 41st Parl, 2014 (First Reading). JURISPRUDENCE Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37. Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350, 5. SECONDARY SOURCES Canada, Parliament, House of Commons. Standing Committee on Public Safety and National Security. Minutes of Proceedings and Evidence. 41st Parl, 2nd Sess. No 055 (March 12, 2015). Canada, Parliament, House of Commons. Standing Committee on Public Safety and National Security. Minutes of Proceedings and Evidence. 41st Parl, 2nd Sess. No 057 (March 24, 2015) 845 – 915. Canadian Bar Association, Bill C-51, Anti-terrorism Act, 2015 (Ottawa: Canadian Bar Association, 2015). Department of Justice, Canadian Security Intelligence Service Act (Government of Canada, 1985). Gordon, Todd. 'Canada, Empire and Indigenous People in the Americas' (2006) 2:1 Socialist Studies. Kinsman, Gary & Pat Gentile. 'From the Canadian War on Queers to the War on Terror: Resisting the Expanding National Security State' in The Canadian War on Queers: National Security as Sexual Regulation, 1st ed (Vancouver: UBC Press, 2015). Mackey, Eva. House of Difference (London: Routledge, 1998). National Post, 'Open letter to Parliament: Amend C-51 or kill it', (2015), online: <http://news.nationalpost.com/2015/02/27/open-letter-to-parliament-amend-c-51-or-kill-it/>. Prime Minister of Canada Stephen Harper, Latest News: Statement by the Prime Minister of Canada in Ottawa (Ottawa, 2014), online: Prime Minister of Canada Stephen Harper <http://pm.gc.ca/eng/news/2014/10/22/statement-prime-minister-canada-ottawa>.

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Jury Nullification: A Last Resort Against Bill C-51 Jeremy Thompson

INTRODUCTION Jury nullification has largely disappeared under the radar as a legal doctrine in Canadian jurisprudence. Despite this, the act of jury nullification has managed to enact change against oppressive pieces of legislation in the last twenty years. What currently holds the public’s attention is a new Anti-Terrorist Act in the form of Bill C-51, which has been proposed by the majority government under the Conservatives.171 In the wake of a number of terror attacks around the world and on Canadian soil, the government is attempting (with haste) to enact this new Bill as a means of allowing surveillance and policing agencies to further combat and address potential terror threats and 171

Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts, 2d Sess, 41st Parl, cl 39.

groups. However, privacy law experts like Federal Privacy Commissioner Daniel Therrien and other legal professionals have voiced their concerns alongside public outcry at the potentially invasive measures. This paper posits the view that in the face of this potentially oppressive new legislation, a citizen’s final safeguard lies with the power of jury nullification. This issue will be examined in light of landmark Supreme Court of Canada cases involving the use of jury nullification. Upon doing so, a conclusion will be made by reviewing Bill C-51 in relation to jury nullification as a potential solution. WHAT IS JURY NULLIFICATION? In criminal law, jury nullification occurs when a jury acquits a defendant of their charges even though they believe him or her to

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be liable for their actions.172 This results when

are not subject to review”.175 This de facto

jury members feel a moral obligation to the

power of the jury has been referred to as a “best

defendant that overrides their interpretation of

kept legal secret” given the fact that judges and

the law in the case or that the law at hand is

lawyers are not supposed to inform jurors of this

unjust in the case at hand.173 Given its rarity in

power.176 Due to its uniqueness and limited

the criminal justice system and the fact that jury

knowledge amongst everyday citizens, jury

trials require a unanimous decision for a verdict,

nullification in its limited use has acted as a

jury nullification is seen as a phenomenon.

powerful tool in the face of oppressive

Many legal professionals are split regarding its

legislation. This will be shown by examining the

validity in the courts.

landmark cases involving jury nullification.

However, jury nullification is founded in CANADIAN JURISPRUDENCE

common law precedent dating back to the

R v Morgentaler

13th/14th centuries in England; there is no Canadian legislation prohibiting it as there is for

The landmark Supreme Court case

other unsanctioned behaviour like jury

affirming the power of jury nullification, centred

tampering. In this way jury nullification is

on the issue of abortion and women’s freedom of

unique. Travis Hreno comments “no steps are

choice.177 Dr. Henry Morgentaler, as the

taken to prevent jurors from nullifying174, jurors

appellant, opposed the legislation that governed

are not subject to legal sanction for nullifying,

a women’s ability to get an abortion and

and verdicts that are the result of nullification

criticized it alongside woman rights groups as being too restrictive.178 He was originally

Travis Hreno, “Necessity and Jury Nullification” (2007) 20 Can. J. L. & Jurisprudence 351. 173 Ibid at 351. 174 “Nullify: to make something legally null.” Merriam-Webster Dictionary, sub verbo “nullify,” accessed on August 8, 2015 <http://www.merriamwebster.com/dictionary/nullify>. 172

175

Ibid. Guiseppe Cipriano, “Jury Nullification: best kept legal secret” Ottawa Citizen (08 September 2012) E.2. ProQuest. 177 Morgentaler v The Queen, [1976] 1 S.C.R. 616, 20 C.C.C. (2d) 449. 178 Ibid at para 2. 176

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charged in Quebec for performing illegal

acquitted at trial by the jury only to have his

abortions at his clinic in violation of s.251 of the

acquittal overturned at the Ontario Court of

Criminal Code of Canada.179

Appeal. This initial nullification of the law was

In a series of trials, Morgentaler was acquitted by juries on three separate occasions, only to have each acquittal reversed at the Quebec Court of Appeal.180 He eventually brought his case before the Supreme Court of Canada, where the majority rejected his

again heard in the Supreme Court, except this time around the justices ruled that the abortion legislation was in violation of people’s right to security of the person under s.7 of the newly created Charter of Rights and Freedoms.184 It was in obiter dicta that Dickson J,

necessity claim that his clinic helped women

with the other justice’s concurring; addressed

avoid unwanted pregnancies and the potential

jury nullification. Dickson J expressed the view

irreparable harm resulting from them.181

that jury nullification is a de facto power of the

Ultimately they determined the existing

jury and there is no way of combating it when it

legislation was not in violation of the Bill of

happens in such rare cases.185 However, it is not

Rights and it was for Parliament change

something that should be encouraged by judges

legislation regarding abortion.182

or legal counsel. As such, it should remain in its

New legal proceedings were brought against Morgentaler when he opened up clinics in Ontario at the request of women’s groups in the early 1980’s.183 Morgentaler was initially

limited capacity as the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of laws. R v Krieger Grant Krieger suffered from multiple

179

Ibid at para 1. Melanie Janelle Murchison, “Law, Morality and Social Discourse: Jury Nullification in a Canadian Context” (2012) Carleton University, Faculty of Graduate and Postdoctoral Affairs. 181 Ibid at 27. 182 Ibid at 28. 183 Christopher Nowlin, “The Real Benefit of Trial by Jury for an Accused Person in Canada: A 180

sclerosis (MS), for which medical marijuana is a Constitutional Right to Jury Nullification” (2007) 53 Crim. L.Q. 290 184 Ibid at 312. 185 R v Morgentaler, [1988] 1 SCR 30. 37 C.C.C. (3d) 449.

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recognized treatment. Krieger argued that the

acknowledged that there is no right to jury

regulations behind medical marijuana use were

nullification in Canada and that judges should do

too strict and that doctors were often unwillingly

what they can to guard against such action.190

to sign for it. He was later charged with

However, she also agreed with the idea that jury

trafficking and at trial, the judge put down his

nullification remains “the citizen’s ultimate

defence of necessity.186 Despite this, the judge

protection against oppressive laws and the

recognized the morality of the issue, and

oppressive enforcement of the law”.191 This

informed the jury to “retire to the jury room to

check on power is a key aspect of juries in

consider what I have said, appoint one of

general. Juries are meant to allow the public into

yourselves to be your foreperson, and then to

the criminal justice process and act as a stand-in

return to the court with a verdict of guilty.”187 As

for the community by representing the values of

a result, two jury members asked to be excused

society in the courtroom. Jury nullification gives

but were denied by the judge, and eventually the

the jury discretion between applying the rule of

judge told the jury they were obligated to find

law and applying what society sees as morally

Krieger guilty.188 He was eventually found guilty

right.

which was later upheld at the Alberta Court of WHAT IS BILL C-51? Appeals, but at the Supreme Court the The last time anti-terrorism legislation conviction was quashed and a new trial was was passed occurred almost immediately after ordered.189 the infamous 9/11 terror attacks in 2001. The It was at the Court of Appeals where

newly proposed Bill C-51 was created by the

Fraser CJ dissented from the rest in her

current Conservative government as a direct

argument regarding jury nullification. Fraser CJ

response to the October 2015 terror attack on Parliament Hill and October 2014 attack in

186

R v Krieger, [2006] 2 S.C.R. 501 at para. 27, 213 C.C.C. (3d) 303, 41 C.R. (6th) 201. 187 Supra note 13 at 315. 188 Ibid at 317. 189 Ibid at 317.

190 191

Ibid at 318. Ibid.

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Quebec.192 Both were done by radicalized193

Assistance in Criminal Matters

individuals and resulted in the combined deaths

Act.194

of four Canadian soldiers. According to the In addition to this, new investigative powers will Conservative Government, the purpose of this be given to law enforcement agencies to allow new bill is to: them to address organized crime and terrorist Modernize certain offences in the

activities.195

Criminal Code (the Code) and the ISSUES WITH C-51 AND

Competition Act to take into account new communications

POTENTIAL JURY NULLIFICATION

technol-ogies and to equip law

A key issue associated with the

enforcement agencies with new

proposed legislation is that it is seen as a “fear-

investigative tools that are adapted

mongering” tactic by the government in an

to computer crimes. To facilitate

attempt to give agencies like the Canadian

collaboration with foreign law

Security Intelligence Service intrusive powers

enforcement agencies, the bill also

over every day law-abiding citizens.196

amends the Mutual Legal

Alongside side this issue is the problem that much of the language in the Bill is broad and

John Ivison et al, “Masked gunman killed after Canadian soldier, Cpl. Nathan Cirillo, fatally shot at National War Memorial” National Post (22 October 2014) Online: <http://news.nationalpost.com/news/canada/soldiershot-outside-of-parliament-at-national-war-memorialactive-shooter-believed-to-be-on-the-loose>.; Maxime Deland, “ ‘Radicalized’ Quebecer shotdead after running down 2 soldiers in suspected terrorist attack” Toronto Sun (20 October 2014) Online: <http://www.torontosun.com/2014/10/20/possibleterror-attack-as-soldiers-run-down-in-quebecparking-lot>. 193 “Radicalized: to cause (someone or something) to become more radical especially in politics.” Merriam-Webster Dictionary, sub verbo “radicalized” accessed on August 8, 2015 <http://www.merriamwebster.com/dictionary/radicalize>. 192

open to interpretation at the expense of citizen’s privacy rights. Looking specifically at the views of federal Privacy Commissioner Therrien, he sees the scope of the information-sharing aspects 194

Supra note 1. Ibid. 196 Lee Berthiaume, “All Canadians would be trapped in anti-terror legislation's 'web', warns privacy commissioner” Ottawa Citizen (06 March 2015) Online: <http://ottawacitizen.com/news/politics/privacycommissioner-warns-all-canadians-would-betrapped-in-anti-terror-legislations-web>. 195

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of this bill as being unprecedented.197 In

restrictions. As a consequence of this decision,

addition, the powers given are considered to be

no new piece of anti-abortion legislating has

excessive and offer lacking safeguards against

been enacted by Parliament.200

unreasonable loss of privacy.198 In the aftermath of Krieger case at the This view is shared by many Canadians, who have taken to Parliament Hill in protest and voiced their anger over such invasive legislation that potentially will violate their human rights.199 Should this Bill pass through the House of Commons and the Senate, however; Canadians have another means of protesting. It will be argued that jury nullification acts as the final safeguard for citizens against this potentially oppressive legislation. There are already cases, albeit limited, where juries have utilized their ability to nullify laws whether or not they realize they have this power. Abortions were a

Supreme Court, the Canadian government has moved, albeit slowly, towards new legislation allowing a greater range of terminally-ill patients access to medical marijuana.201 This could have taken much longer through conventional methods of political change had the jury trying Krieger decided not to make a moral decision as opposed to a purely legal one. In line with precedent, there are clear indications that a jury is capable (and perhaps likely) to rule in favour of a defendant charged under the proposed legislation. This is not to say that potential jurors would rule against this legislation at the expense

contentious issue in the past but it was clear after the Morgentaler decision that public opinion felt women should have the right to choose without

197 198

Ibid. Ibid.

Kady O'Malley & Laura Payton, “Bill C-51: Sister of slain soldier Patrice Vincent testifies as committee review resumes” CBC News (23 March 2015) Online: <http://www.cbc.ca/news/politics/bill-c51-sister-of-slain-soldier-patrice-vincenttestifies-as-committee-review-resumes1.3005604>. 199

Tristin Hopper, “Historic ruling in Morgentaler abortion case left a controversial 'legislative void'” National Post (29 May 2013) Online: <http://news.nationalpost.com/2013/05/2 9/henry-morgentaler-abortion-case-left-acontroversial-legislative-void/>. 201 Douglas Quan, “Canada’s fledgling medical marijuana industry hit by series of setbacks” National Post (28 January 2015) Online: <http://news.nationalpost.com/2015/01/2 8/canadas-fledgling-medical-marijuanaindustry-hit-by-series-of-setbacks/>. 200

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of letting real terrorist threats go free. Doing so

The circumstances surrounding abortion allowed

would be a gross miss-use of the doctrine of jury

for the landmark decision in Morgentaler

nullification and what it represents. However,

(1988), which had a lasting effect on future

history has shown that extreme situations will

legislation. Jury nullification was used again in

arise as a combination of exceptional

Krieger (2005) and has impacted the current

circumstances and oppressive laws. This is

state of laws governing medical marijuana use.

where Canadian citizens will have the ability to

Both these cases were a reaction to oppressive

protect their privacy rights and enact real change

legislation and forced the government to enact

in Parliament regarding such a potentially

change. Jury nullification will continue to act as

invasive and harmful act.

a last resort against oppressive laws and enforcement. Bill C-51 has become another

CONCLUSION piece of controversial legislation and has the Bill C-51 in its present state has the potential of violating Canadians’ rights to privacy against government intrusion. Based on past precedent and current public opinion, it is reasonable to foresee jury nullification as a way of combating the oppressive nature of this Bill.

potential to disregard the privacy rights of Canadian citizens, alongside other invasive measures. It is posited that should traditional methods of legislative reform fail, Bill C-51 is set to become another casualty of this legal doctrine.

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BIBLIOGRAPHY LEGISLATION Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts, 2d Sess, 41st Parl, cl 39. CASES Morgentaler v The Queen, [1976] 1 S.C.R. 616, 20 C.C.C. (2d) 449. R v Krieger, [2006] 2 S.C.R. 501 at para. 27, 213 C.C.C. (3d) 303, 41 C.R. (6th) 201. R v Morgentaler, [1988] 1 SCR 30. 37 C.C.C. (3d) 449. JOURNAL ARTICLES Hreno, Travis “Necessity and Jury Nullification” (2007) 20 Can. J. L. & Jurisprudence 351. Murchison, Melanie Janelle “Law, Morality and Social Discourse: Jury Nullification in a Canadian Context” (2012) Carleton University, Faculty of Graduate and Postdoctoral Affairs. Nowlin, Christopher “The Real Benefit of Trial by Jury for an Accused Person in Canada: A Constitutional Right to Jury Nullification” (2007) 53 Crim. L.Q. 290 NEWSPAPER ARTICLES Berthiaume, Lee “All Canadians would be trapped in anti-terror legislation's 'web', warns privacy commissioner” Ottawa Citizen (06 March 2015) Online: <http://ottawacitizen.com/news/politics/privacy-commissioner-warns-all-canadians-would-be-trappedin-anti-terror-legislations-web>. Cipriano, Guiseppe “Jury Nullification: best kept legal secret” Ottawa Citizen (08 September 2012) E.2. ProQuest. Deland, Maxime “ ‘Radicalized’ Quebecer shotdead after running down 2 soldiers in suspected terrorist attack” Toronto Sun (20 October 2014) Online: <http://www.torontosun.com/2014/10/20/possibleterror-attack-as-soldiers-run-down-in-quebec-parking-lot>. Hopper, Tristin “Historic ruling in Morgentaler abortion case left a controversial 'legislative void'” National Post (29 May 2013) Online: <http://news.nationalpost.com/2013/05/29/henry-morgentalerabortion-case-left-a-controversial-legislative-void/>. Ivison, John et al, “Masked gunman killed after Canadian soldier, Cpl. Nathan Cirillo, fatally shot at National War Memorial” National Post (22 October 2014) Online: <http://news.nationalpost.com/news/canada/soldier-shot-outside-of-parliament-at-national-warmemorial-active-shooter-believed-to-be-on-the-loose>. O'Malley, Kady; Payton, Laura “Bill C-51: Sister of slain soldier Patrice Vincent testifies as committee review resumes” CBC News (23 March 2015) Online: <http://www.cbc.ca/news/politics/bill-c-51sister-of-slain-soldier-patrice-vincent-testifies-as-committee-review-resumes-1.3005604>. 71 |CUJLS 2015


Quan, Douglas “Canada’s fledgling medical marijuana industry hit by series of setbacks” National Post (28 January 2015) Online: <http://news.nationalpost.com/2015/01/28/canadas-fledgling-medicalmarijuana-industry-hit-by-series-of-setbacks/>.

DICTIONARIES Merriam-Webster Dictionary, sub verbo “radicalized” accessed on August 8, 2015 <http://www.merriamwebster.com/dictionary/radicalize>. Merriam-Webster Dictionary, sub verbo “nullify,” accessed on August 8, 2015 <http://www.merriamwebster.com/dictionary/nullify>.

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-----------------------Issues in International Law ------------------------

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The Evolution of Power in the Security Council and its Unprecedented Use in the Special Tribunal for Lebanon: A Legal Analysis Isabelle Crew

INTRODUCTION Upon the creation of the United Nations

organization.202 This decision, accompanied by the legally guaranteed powers found in the

in 1945 the power imbued in the United Nations

Charter enabled the Security Council to take

Security Council in the Charter of the United

those measures necessary to ensure the

Nations 1945 [Charter] was unprecedented in

completion of its mandate as outlined in Article

international law. The powers contained in

24 of the Charter – the maintenance of

Chapter VII of the Charter, which allowed the

international peace and security.203

Security Council to supersede the traditional

Over 60 years later both the definition of

sovereign authority of states, was a paradigm

“international peace and security” and the

shift from the Westphalian order of international

measures taken by the Security Council in

law which had placed the state as the

response to this mandate have expanded

uncontested authority. With the Reparations

dramatically. There are now countless instances

Case 1949 the International Court of Justice

wherein the sovereignty and sovereign will of

(ICJ) expanded these powers explicitly contained in the Charter to those functionally necessary to carry out the mandate of the

202

Reparation for Injuries Suffered in the Service of the United Nations [1949] Advisory Opinion 174 at 184. 203 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7.

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states has been downgraded. Many argue that

(STL), brought about through Security Council

this marks a new era of international law and

Resolution 1757 (2007).206 The Special Tribunal

relations – one of conditional sovereignty and

for Lebanon, created to investigate, indict, and

the rise in both power and personality of

try those responsible for the 2005 assignation of

international organizations such as the United

former Lebanese Prime Minister Rafik as-Hariri

Nations and the Security Council.204 It has also

and 22 other individuals marks a new

been argued that in an era of globalization, with

development in international law. Ad hoc

new found respect for human rights, this

tribunals of this nature have become a fixture in

approach to sovereignty is needed to combat the

the new wave of international law which has

historic anarchy of the Westphalian state system,

come to include international criminal justice.

whereby the authority of states with respect to its

But what makes the STL distinct is its creation.

internal affairs was unchecked.205 But is it

The method and legal justification used by the

possible that the pendulum has swung too far? In

Security Council in the creation of the STL

its attempts to maintain international peace and

indicates a move on the part of the Council to

security has the Security Council downgraded

depart from its established practices and claim a

sovereignty to a point that is no longer legally

power unprecedented in the history of the United

defensible?

Nations – to substitute a Chapter VII decision

While these questions have been raised

for a ratification of an international treaty,

for several years, it was a recent and

thereby generating a treaty obligation on

unprecedented action in international law that

Lebanon in the absence of the state’s legal

brought them crashing to the forefront – namely,

ratification.207

the creation of the Special Tribunal for Lebanon If this is indeed the case, such an action Ramesh Thakur, “Law, Legitimacy and the United Nations” (2010) 11 Melb J Int’l L 1 at 2. 205 Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton: Princeton University Press, 2007) at 10. 204

would represent an unprecedented competence 206

UN Doc. S/RES 1757 (2007). Bardo Fassbender, “Reflections on the International Legality of the Special Tribunal for Lebanon” (2007) 5 J Intl CJ 1091 at 1097. 207

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assumed by the Security Council in relation to

under Chapter VII by the Security Council, it is

its mandate, as well as an unprecedented

necessary to understand the events leading up to

downgrading of sovereignty and the violation of

the creation of the Resolution and the Special

one of the most principle norms in international

Tribunal for Lebanon. The Tribunal was

law. Were the means through which the Security

established with an express mandate to

Council created the STL an extralegal and

investigate and prosecute those individuals

invalid use of Chapter VII powers, and if so,

responsible for the attacks of February 14th, 2005

what are the implications for international law

which resulted in the death of Prime Minister

and the law of international organizations? In

Rafiq Hariri and 22 others.208 As an act of

order to answer this question in this essay I

terrorism in an already volatile domestic and

assess the unique circumstances which led to the

regional political situation the Security Council

creation of the Tribunal, and analyse the legal

eventually described these attacks as a direct

provisions used to justify Resolution 1757 and

threat to international peace and security – a

the other sources of international law which

controversial determination in and of itself.209

have bearing on its legality. Based on this

In the immediate aftermath of the

analysis it is argued that the methodology used

attacks, and in response to a request from the

to create the Special Tribunal for Lebanon was

Lebanese government, the Security Council

legally invalid and marked the use of an

mandated the Secretary General of the United

unprecedented power by the Security Council

Nations to identify the nature and scope of the

with potentially serious consequences on the

international assistance needed and to negotiate

state of international law.

on its behalf an agreement with Lebanon aimed at establishing a tribunal based on “the highest

BACKGROUND INFORMATION ON THE CREATION OF THE TRIBUNAL In order to fully evaluate Resolution 1757, and these extraordinary measures taken

Michal Humphrey, “The Special Tribunal for Lebanon: Emergency Law, Trauma and Justice” (2011) 33 ASQ 4 at 10. 209 Olivia Swaak-Goldman, “Introductory Note to Security Council Resolution 1757 Establishing the Special Tribunal for Lebanon” (2007) 46 ILM 989 at 989. 208

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international standards of criminal justice”.210

As a result the Agreement was neither approved

Throughout 2006 negotiations were held,

by Parliament, nor ratified by the President.214

culminating in the “Agreement on the

Both of these actions are required by Article 52

Establishment of a Special Tribunal for

of the Lebanese Constitution in order to ratify

Lebanon” [Agreement], which was signed by

international agreements or enter into

Lebanon and the UN, respectively on January

international treaties. Backed by mere signature,

23rd and February 6th 2007.211

the Agreement remained in a legal limbo – non-

Had the Lebanese government submitted

binding and unenforceable.

its formal instrument of ratification the STL

In response to this paralysis in the

would have become the third criminal tribunal

Lebanese government, in May 2007 the Security

based on an international treaty between the UN

Council adopted Resolution 1757 under Chapter

and a member state.212 However, internal

VII of the Charter, justifying the intervention of

political strife fueled by the belief that such a

the international community into the domestic

tribunal would be used to target Hezbollah and

affairs of the state by affirming the threat

the Shiite population of the state led to an

terrorism in Lebanon posed to international

impasse in the Lebanese government as the

peace and security.215 The Security Council

resignation of Shiite ministers prevented the

annexed the Agreement between the United

Lebanese Parliament from being convened.213

Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon

Gianluca Serra, “Special Tribunal for Lebanon: A Commentary on its Major Legal Aspects” (2008) 18 International Crim J Rev 344 at 345. 211 David Forsythe, “The UN Security Council and Response to Atrocities” International Criminal Law and the P-5” (2012) 34 HRQ 840 at 854. 212 Note: The other international ad hoc criminal tribunals of this nature were the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). 213 Samer Abboud & Benjamin Muller, “Geopolitics, Insecurity and Neocolonial Exceptionalism: A Critical Appraisal of the UN Special Tribunal for Lebanon” (2013) 44 Secur Dialog 467 at 471. 210

to Resolution 1757, the terms of which declared that the annexed agreement would enter into force on June 10th, 2007 regardless of any

214 215

Fassbender, supra note 6 at 1092. Abbound, supra note 12 at 477.

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decisions made on the matter by the Lebanese

completely counter to the fundamental principles

Parliament.216

of international law.

In response to a perceived threat to

LEGAL ANALYSIS OF RESOLUTION 1757

international peace and security the Security

There have been instances since the

Council completely bypassed the constitutional

creation of the United Nations where the power

processes of a member state by using its Chapter

of the organization has expanded to

VII powers to ensure the ratification of a treaty –

unprecedented levels. In the Namibia Case 1971

putting the Agreement into effect, despite the

the International Court of Justice affirmed the

absence of ratification by Lebanon.217 This

authority of the United Nations to create

violation of sovereignty was not due to human

decisions which would contain binding authority

rights abuses within the state or new conceptions

over the actions of all states – including those

of conditional sovereignty, but was due rather to

which were not members of the organization.218

domestic democratic impasses which proved

As the definition of international peace and

inconvenient to the international community.

security continues to evolve so to do the powers

This was without question a unique situation in

undertaken by the Security Council in the name

international law which led to completely

of achieving their mandate. However, what sets

unprecedented action taken by the Security

the creation of the STL apart from these

Council. While in the past several decades the

decisions is the way in which its creation

power and personality of international

appears to run so contrary to the fundamental

organizations has grown to levels which

principles of international law. As the Russian

previously would have been considered

delegation argued at the Security Council with

unimaginable, this action represented the

respect to Resolution 1757, “The arrangement

expression of power to such an extent that it runs

chosen by the sponsors is dubious from the point 218

216 217

Fassbender, supra note 6 at 1092. Ibid at 1093.

Legal Consequences for States of the Continued Presence of South African in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 [1971] Advisory Opinion 1 at 119.

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of view of international law. The treaty between

exclusively upon its Chapter VII powers, such as

two entities – Lebanon and the United Nations –

the International Criminal Tribunal for the

by definition cannot enter into force on the basis

Former Yugoslavia (ICTY) and the International

of a decision by only one party”.219

Criminal Tribunal for Rwanda (ICTR).222 These

The language of the Resolution

scholars argue that given that this authority has

certainly appears to support the interpretation

been well established, it would have been

that the Security Council regarded its Chapter

unnecessary for the STL to be considered a

VII decision to be a substitute for a ratification

treaty-based organization, and that instead the

of the Agreement by Lebanon. Outside of the

STL represents an independent international

annexed document, which was the original

tribunal under the authority of the United

Agreement, the Resolution contains only one

Nations created on the strength of a binding

article which declares the date at which time the

resolution taken under Chapter VII.223 These

annexed agreement would enter into force.220 It

arguments are persuasive, particularly given that

is notable that the language used in this lone

the Resolution does not explicitly use the term

article directly originates from the law of

“ratification”. However, given that the

treaties.221 The terminology “enter into force”

Resolution uses the language “enter into force”

refers explicitly to the ratification of a treaty and

with respect to the Agreement it can be stated

the imposition of treaty obligations upon the

that Lebanon is not merely functionally bound

member states.

by provisions contained within a Security

However, defenders of the Tribunal argue that this reading is unnecessary. The

Council resolution, but rather legally bound to the provisions contained within an Agreement

commenters claim that given that the Security Jessica Liang, “The Inherent Jurisdiction and Powers of International Criminal Courts and Tribunals: An Appraisal of their Application” (2012) 15 New Crim L Rev 375 at 390. 223 Antonia Cassese, “International Criminal Court and Tribunals: The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice” (2012) 25 Leiden J Intl L 491 at 494 222

Council has used its powers to create ad hoc international criminal tribunals in the past based 219

Serra, supra note 9 at 346. Supra note 3 221 Fassbender, supra note 6 at 1096 220

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which has entered into force between the state

the principle of free consent of sovereign states,

and the United Nations Security Council.

which these actions violate.

While under Chapter VII the Security

The principle of free consent is found

Council has the authority to force compliance to

at the core of international law and is based upon

orders and intervene into the sovereign affairs of

the Westphalian principle that the sovereign will

states, there are no articles which provide the

of the state is supreme in international law. The

Security Council with the ability to supplement a

principle of state consent is so fundamental to

Chapter VII decision for a ratification of an

the law of treaties that it is expressly referred to

international agreement.224 The Security Council

62 times in the Vienna Convention on the Law of

can make binding decisions under Chapter VII

Treaties [Vienna Convention], and is at the roots

of the Charter which, according to Article 103,

of the vast majority of the articles therein.226

take precedence over obligations of states under

Further, the preamble to the Vienna Convention

international treaties. However, this power of the

explicitly notes the universal recognition of, “the

Security Council to interfere with member

principles of free consent and good faith and the

states’ existing treaty obligations for the benefit

pacta sunt servanda� (agreement must be

of the maintenance of international peace and

kept).227

security must be strictly distinguished from a power to impose on member states new

There is precedent whereby the actions of the Security Council can run contrary to

obligations in the form of international treaties.225 Though the actions taken under Chapter VII continue to expand, it is very unlikely that the ICJ will ever affirm the legality of this capacity given the fundamental nature of

224 225

Supra note 5. Fassbender, supra note 6 at 1100.

226

Vienna Convention on the Law of Treaties, 1155 UNTS 331, UN Doc. A/Conf.39/27 (1969) 63. 227 Ibid. Note: There are circumstances in international law which challenge the supremacy of state consent, but none relate explicitly to the law of treaties. While the Namibia Case did present a challenge to the assumption that the binding nature of resolutions from various UN organs was derived from the ratification of the UN Charter by member state, and therefore existed beyond the realm of consent, this arguable related more to political power of the organization, than the legally binding obligations of states. Customary law and jus cogens norms provide another exception, but neither relate specifically to treaty law.

80 |CUJLS 2015


international law, but only in those instances

the end result can be achieved through legally

where such actions are explicitly necessary for

legitimate means.

the achievement of its mandate. However, while Further, the explicit powers provided the powers used by the Security Council in in Chapter VII also grant no such competence as achieving their Article 24 mandate have been undertaken by the Security Council in the expanding it cannot be said that the creation of Resolution 1757. Article 39 offers supplementation of a Chapter VII resolution for the Security Council all the coercive power it the ratification of a treaty falls under either the needs to maintain international peace and organ’s explicit or implied powers – which is security by unilateral decision, but only within necessary in order for such actions to achieve the scope of Articles 41 and 42.229 These articles any degree of legitimacy. This assertion is in

provide for actions including, “complete or

fact supported by arguments of supporters of the partial interruption of economic relations and of legitimacy of the STL as mentioned previously rail, sea, air, postal, telegraphic, radio, and other in this paper. The Security Council can and has means of communication, and the severance of used Chapter VII powers to create international criminal tribunals without having to violate this

diplomatic relations”, and where such provisions are inadequate, “demonstrations, blockade, and

core principle of treaty law.228 As such it cannot other operations by air, sea, or land forces of reasonably be argued that the supplanting of a

Members of the United Nations”.230 Therefore it

Chapter VII resolution for a ratification of a can be ascertained that neither the explicit, nor treaty is functionally necessary for the the implied, powers imbued in the Security achievement of its mandate. Plainly, if the Council provided for the competence used in the Security Council can create an international creation of the STL, and therefore such an action criminal tribunal without violating the law of was ultra vires to the authority of the Security treaties, such a violation cannot be said to be Council. necessary to the achievement of its mandate if 229 228

Liang, supra note 21 at 391.

230

Supra note 2. Ibid.

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CONCLUSIONS CONSEQUENCES OF

South Africa elected not to be present during

RESOLUTION 1757 ON INTERNATIONAL

voting, leaving the Resolution to come into force

LAW

with a vote of 10-0-5.232 Outside of the Security The power to substitute a Chapter VII

Council Syria is the only state to have raised any

decision for a ratification of an international

dissent with respect to the legality of the

treaty, with the effect of generating a treaty

Tribunal.233

obligation on the part of the state in question,

In the absence of dissent or an ICJ

would be an unprecedented competence on the

advisory opinion, this new found competence of

part of the Security Council.231 However, after

the Security Council has precedential basis as

the creation of the STL, such a competence is no

well as tacit consent from member states, and

longer unprecedented. As the Special Tribunal

therefore could be used in the future. This is

for Lebanon begins trying in absentia those

profoundly troubling. If Security Council

accused of the February 2005 attacks it is

resolutions can have the effect of replacing the

important to consider whether this type of

ratification of a treaty on the part of a

creation was a one-off assertion of powers in a

contracting state the legitimacy of international

unique circumstance, or whether this represent a

law is challenged, as is the legitimacy of the

die being cast with respect to new powers used

United Nations.

under Chapter VII. Resolution 1757 met with

The Security Council, as a principle

very little opposition within the Security

organ of the United Nations which is devoted to

Council, and even less within the international

the rule of law, should not be able to change the

community more generally. Within the Security

fundamental meaning of treaty law – which is so

Council the Resolution was adopted without

central to the functioning of the international

opposition. Though five member states did voice

legal system.234 The preamble of the Charter

objections during debate, these states; China,

proclaims one of the central goals of the United

Indonesia, Qatar, the Russian Federation and

232

Cassese, supra note 22 at 495. Ibid. 234 Fassbender, supra note 6 at 1099. 233

231

Fassbender, supra note 6 at 1097.

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Nations to, “established conditions under which justice and respect for obligations arising from treaties and other sources of law can be maintained�.235 The action undertaken by the Security Council in Resolution 1757 deviate from and violate these fundamental principles to such an extent that they cannot be viewed as a legitimate action within international law, nor within the mandate of the United Nations more specifically. It can only be hoped that these powers were only undertaken due to the unique nature of the political situation in Lebanon, and do not represent the beginning of a trend in new powers undertaken by the Security Council.

235

Supra note 2.

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BIBLIOGRAPHY JURISPRUDENCE Legal Consequences for States of the Continued Presence of South African in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 [1971] International Court of Justice Advisory Opinion 1. Reparation for Injuries Suffered in the Service of the United Nations [1949] International Court of Justice Advisory Opinion 174. LEGISLATION Charter of the United Nations, 26 June 1945, Can TS 1945 No 7. UN Doc. S/RES 1757 (2007). Vienna Convention on the Law of Treaties, 1155 UNTS 331, UN Doc. A/Conf.39/27 (1969) 63 SECONDARY SOURCES Abboud, Samer & Benjamin Muller, “Geopolitics, Insecurity and Neocolonial Exceptionalism: A Critical Appraisal of the UN Special Tribunal for Lebanon” (2013) 44 Secur Dialog 467. Casses, Antonio, “International Criminal Court and Tribunals: The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice” (2012) 25 Leiden J Intl L 491. Fassbender, Bardo, “Reflections on the International Legality of the Special Tribunal for Lebanon” (2007) 5 J Intl CJ 1091. Forsythe, David, “The UN Security Council and Response to Atrocities” International Criminal Law and the P-5” (2012) 34 HRQ 840. Humphrey, Michael, “The Special Tribunal for Lebanon: Emergency Law, Trauma and Justice” (2011) 33 ASQ 4. Hurd, Ian, After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton: Princeton University Press, 2007). Liang, Jessica, “The Inherent Jurisdiction and Powers of International Criminal Courts and Tribunals: An Appraisal of their Application” (2012) 15 New Crim L Rev 375. Serra, Gianluca, “Special Tribunal for Lebanon: A Commentary on its Major Legal Aspects” (2008) 18 Intl Crim J Rev 344. Swaak-Goldman, Olivia, “Introductory Note to Security Council Resolution 1757 Establishing the Special Tribunal for Lebanon” (2007) 46 ILM 989. Thakur, Ramesh, “Law, Legitimacy and the United Nations” (2010) 11 Melb J Int’l L 1. McGill Legal Citation Style 84 |CUJLS 2015


Betting on a Grey Area: A Threat Assessment of Organized Crime and Online Gambling in Canada Brandon Pasion

INTRODUCTION Illegal gambling has been the primary

can be operated internationally.237 This criminal market operates in a grey area in Canada as

source of income and method of laundering

many online gambling sites are operating in

money for organized crime groups for over the

contravention with Canadian laws, but are

past 50 years, and this is not going to change any

located offshore in jurisdictions where their

time soon. In fact, with the advancements of

operations are legal, and outside the authority of

modern technology and the proliferation of the

Canadian courts.

World Wide Web, a new market for the criminal In order to fully illustrate the threat that enterprise of illegal gambling has emerged.236 In online gambling currently poses to Canada, this the past, organized crime groups had to rely on paper applies the Enterprise Crime Theory land-based or physical venues for their gambling (ECT) to discuss the scope of this emerging operations but can now conduct their business market, as well as the business process that may from anywhere an internet connection is be used by criminal groups to exploit the available. The market of illegal online gambling vulnerability that is created by this grey area in is a particular problem for Canada due to unclear Canada. The ECT proposes that criminal regulations and the ease of which gambling sites organizations operate in a manner similar to

Savona Ernesto et al, “Understudied Areas of Organized Crime Offending: A Discussion of the Canadian Situation in the International Context” Ottawa, ON: Public Safety Canada (2011). 237

Peter Ferentzy & Nigel Turner, “Gambling and Organized Crime: A Review of the Literature” (2009) 23 Journal of Gambling Issues 111. 236 236

85 |CUJLS 2015


legitimate businesses with the key difference

higher payout.239 Online gambling is thus the

being the legality of their activities. As such, the

engagement in gambling activities via websites

ECT purports that illicit enterprise is the

on the internet. Gambling sites offer four

extension of legitimate market activities into

primary categories of gambling services: sports-

areas normally proscribed by law for the pursuit

betting, poker, casino, and bingo. Sites are either

of profit and in response to a latent, illicit

regulated or unregulated, the difference being

demand.238 This demand is due to a gap in the

that regulated sites are legally licensed, reporting

services or product offered by legitimate means.

entities that have an element of accountability

For example, the lack of easily accessible and

whereas unregulated sites are not. 240 Currently

legally available narcotics creates a demand for

in Canada, each province is separately

an illegal supply that is exploited by crime

responsible for regulating and operating

groups for a profit. In order to better understand

gambling services and activities within their

the applicability of this model, the legitimate

jurisdiction. The relevant legislation will be

market needs to be examined and juxtaposed

discussed in more detail in the following section,

against the criminal market. But first, this paper

but the key fact is that the only legal gambling

will review the key concepts and legislation

services are those that are operated or licenced

pertinent to understanding the scope of the threat

by the province. As such, any gambling site that

of the emerging criminal market of illegal online

is not licenced by the province is illegal, such as

gambling.

offshore sites, yet Canadians are increasingly gambling online using unregulated and illegal

BACKGROUND sites.241 Gambling is defined as any risk-taking activity involving a wager or bet in return for a Dwight C. Smith Jr., “Organized Crime and Entrepreneurship” (1978) 6:2 International Journal of Criminology and Penology 161.; Dwight C. Smith Jr., “Some Things that may be More Important to Understand Organized Crime than Cosa Nostra” (1971) 24 University of Florida Law Review 1. 238

Jerome H. Skoinick, “Gambling” In Dressler (ed) Encyclopedia of Crime and Justice (New York: Macmillan Reference USA, 2002) 723. 240 John L. McMullan & Aunshul Rege, “Online Crime and Internet Gambling” (2010) 24 Journal of Gambling Issues 34 [McMullan & Rege]. 241 Mark Wilson, “Chips, Bits, and the Law: An Economic Geography of Internet Gambling” (2003) 35 Environment and Planning 1245. 239

86 |CUJLS 2015


Organized crime is more difficult to

of the Criminal Code makes it an offense for

define than gambling as a clear universal

anyone to operate a common gaming or betting

definition has yet to be formulated. For the

house, while s.202-203 make it an offence for

purposes of this paper, organized crime and

anyone to make a profit by offering betting,

organized criminal groups will be defined as a

pool-selling243, and book-making244 services or

group of 3 or more individuals that is not formed

placing a bet on behalf of others. Section 206

at random and continuously pursues material or

further enumerates a range of offences related to

non-material benefits through illegally

participating in the operation of lotteries and

prohibited actions. The lack of clear laws,

games of chance. The wording of gambling

regulations and enforcement regarding the issue

provisions seems to suggest that the legislation

of offshore gambling sites creates a grey area

is not concerned with the gambler but rather

that is ripe for exploitation by organized crime

targeted at controlling the venue of gambling

groups. To address the legality of offshore sites,

activities by restricting their legality to licenced

the following section reviews the relevant

and exempted parties as per s.207 of the

legislation pertinent to the issue of online

Criminal Code. Such an interpretation includes

gambling in Canada.

operators of online gambling sites that are not licenced and regulated by the province.

LEGISLATION In 1985, the Criminal Code was

Also relevant to the issue of online

amended and gave the provinces exclusive

gambling and organized crime is the Proceeds of

authority to manage and conduct lotteries and

Crime (Money Laundering) and Terrorist

lottery schemes, thereby limiting the Canadian

Financing Act. This act was amended in June of

federal government’s involvement in gambling

2014 to include online casinos, businesses and

to the prohibitions and permissions set out in the

persons dealing with digital currencies in its

provisions of the Criminal Code.242 Section 201

243

242

Criminal Code, RSC 1985, c C-46 ss.201-207

The selling or distribution of chances in a betting pool. 244 Taking bets on the outcome of an event at agreed upon odds.

87 |CUJLS 2015


provisions. It also made changes to the

institutions. The transnational nature of

obligations and powers of the Financial

gambling sites makes extra-jurisdictional

Transactions and Reports Analysis Centre

enforcement difficult and is a serious

(FINTRAC) of Canada, creating the requirement

impediment to the success of regulating online

that any online retailer or service provider that

gambling in Canada. As the following section

deals with digital currency must register and

investigates the scope of the threat posed by the

report to FINTRAC.245 This amendment means

criminal market of online gambling in Canada, it

that online casinos that deal with digital

will become clear that this grey area is severely

currencies must register with FINTRAC in order

at risk of being exploited by organized crime

to open bank accounts and deal with a Canadian

groups, and poses a threat to Canada’s economy

financial institutions. Registration with

and society.

FINTRAC subjects the casino to reporting SCOPE OF THE THREAT requirements which effectively nullifies As of 2014, there were approximately anonymity, one of the most appealing aspects of 2100 gambling sites in operation that accepted online gambling to organized crime groups over 200 methods of payment and had known discussed later in this paper. Furthermore the revenues of $25 billion USD.246 Current added legislative power of FINTRAC to issue estimates of expected revenues for online monetary and criminal penalties for nongambling in 2015 are more than $50 billion compliance increases the element of USD, with an expected growth of 30% a year.247 accountability on registered entities, which However, these figures are difficult to validate further deters them from engaging in criminal as many gambling sites are unregulated and transactions. However, a severe limitation to both the Criminal Code and PCMLFTA is that McMullan & Rege, supra note 5. Charles McFarland, Francois Paget & Raj Samani, “Jackpot! Money Laundering through Online Gambling” (2014) McAffee Labs White Paper, online: http://www.mcafee.com/ca/resources/whitepapers/wp-jackpot-money-laundering-gambling.pdf [McFarland]. 246

they only apply to Canadian based and operated

Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000 c.17. [PCMLTFA] 245

247

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located in offshore tax havens,248 and do not

gambling sites as a source of income, organized

have to report their financial transactions or

crime groups are also using them to conduct a

revenues. Regardless of the accuracy of these

variety of other illegal activities.

figures, the fact remains that provincial coffers

For instance, online gambling sites are

and charities are losing a considerable amount of

used to launder proceeds from other illegal

revenue to unregulated gambling sites which

activities. The exact process will be discussed

could be operated by organized crime groups

later in this paper, but the essential concept is

and funding criminal or terrorist activities. In

that offshore sites operate in jurisdictions where

fact, in 2013, an RCMP raid in connection to an

they are legal businesses and can claim profits as

online gambling site that had ties to the Hell’s

legitimate revenues. Considering this utility

Angels resulted in the seizure of $2.5 million

alone demonstrates the serious difficulties faced

CAD and 6 arrests with charges related to

by law enforcement, not just in Canada, but

gambling offences. The gambling site reportedly

globally in combatting organized crime. For

brought in an average of $1 million in profits a

instance, hundreds to thousands of transactions

month.249 This is a staggering revelation

take place per minute on any given gambling

considering that this was a single gambling site

site, and they occur instantly and

which only offered sports-betting. Extrapolation

transnationally.250 The sheer number of

of this case to the 2100 sites in operation makes

transactions alone make it difficult to track

the revenue figures of online gambling discussed

finances, but coupled with the lack of

earlier more fathomable. Aside from utilizing

regulations, poor reporting requirements, and transnational nature, this complexity increases to

A country or independent area where taxes are levied at a low rate or non-existent. Also no financial reporting requirements. 249 Adrian Humphreys, “RCMP Charge Six Men, Seize $2.5M in Cash, After Multiple Raids in Connection with ‘Mafia-linked’ Illegal Gambling Ring” National Post (5 February 2013) online: http://news.nationalpost.com/news/canada/glitzysuper-bowl-gala-turned-gang-takedown-rcmp-bustillegal-gambling-ring-with-alleged-ties-to-hells-angelsmafia 248

near impossible. However, financing crime, and Sally Ramage, “Information Technology Facilitating Money Laundering” (2012) 21:3 Information & Technology Law 269; John Hunt, “The New Frontier of Money Laundering: How Terrorist Organizations use Cyberlaundering to Fund their Activities, and How Governments are Trying to Stop them” (2011) 20:2 Information & Communications Technology Law 133. 250

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money laundering are not the only ways

costing Canada millions in lost revenues, but it

organized crime groups are exploiting the

is also having a harmful impact on Canadian

market of online gambling: it is also used as an

society. For instance, the lack of controls, poor

avenue for other crimes.

security measures and the ease of accessibility

A recent study found that online

raises concerns over addiction and problem

gambling is also connected with cybercrime and

gambling which are supported by the recent

used as a means to commit theft, fraud and

findings of two surveys. The two surveys

extortion.251 The process by which this is

revealed that, from a sample of 563 online

achieved is outside of the present scope of this

gamblers, 23% were classified as problem

paper, but it is important to understand is that the

gamblers, while a sample of 1920 found that

lack of clear, enforceable and universal

42.7% were classified as problem gamblers252.

regulations creates little pressure for sites to take

When you compare this to the national

appropriate security measures and as such, many

occurrence of problem gambling of 4%, the

sites are not encrypted or protected. The result is

studies seem to support a correlation between

that criminals are able to access and steal

the accessibility of online gambling and problem

personal information input by users of the site.

gambling. The impact that illegal online

The criminal market of illegal online gambling

gambling may have on Canadian society is

does not only benefit organized crime at the cost

troublesome considering that the issue of

of the individual, but it also has serious societal

problem gambling contributes to individual and

consequences for all of Canada.

social hardships such as bankruptcy, homelessness and the need for treatment. The

As online gambling in Canada waits in costs associated with homelessness, including legal purgatory, the exploitation of the online gambling market by crime groups is not only 251John

L McMullan & David Perrier, “The Security of Gambling and Gambling with Security: Hacking, Law Enforcement and Public Policy” (2007) 7 International Gambling Studies 43.

Jessica McBride & Jeffrey Derevensky, “Internet Gambling Behaviour in a Sample of Online Gamblers” (2009) 7 International Journal of Mental Health Addiction 149; Robert T. Wood & Robert J. Williams., “Problem Gambling on the Internet: Implications for Internet Gambling Policy in North America” (2007) 9:3 New Media & Society 520. 252

90 |CUJLS 2015


community and shelter services, are estimated at

process used by organized crime groups to

$66,000 - $120,000 CAD per person a year,

exploit this grey area in Canada.

while the costs of problem gambling are UNDERSTANDING THE CRIMINAL estimated at $50,000 CAD per person each MARKET year.253 Furthermore, problem gambling has As mentioned earlier, the only legal been found to have a high co-morbidity rate with venues of gambling in Canada are provincially depression which costs Canada an estimated $51 operated or licensed casinos and retailers. billion a year254. While these figures are However, these locations may have operating estimates, and the actual costs are difficult to hours and require patrons to physically travel to calculate, they do sufficiently illustrate that the them, making them inaccessible to many. criminal market of illegal online gambling has Provinces that do offer online gambling services more adverse effects on Canada’s economy and have a limited selection of game types, are only society other than contributing to the available to residents of the province, and only profitability and proliferation of organized crime offer payouts for actually winning. These groups. legitimate services are also subject to the Now that the scope of the threat posed

provisions of the PCMLFTA. In contrast, the

by the criminal market of illegal online

unregulated illegal market consists of offshore

gambling has been established, the following

gambling sites that offer global 24/7 access,

sections will return to discussing the

anywhere that an internet connection available.

applicability of the ECT and the business

These sites also offer a wide variety of gambling

Steve Pomeroy, “The Cost of Homelessness: Analysis of Alternative Responses in Four Canadian Cities” (2005) Canadian Alliance to End Homelessness, online: http://www.caeh.ca/about-homelessness/thecost-of-homelessness/ 254 Centre for Addictions and Mental Health, “Mental Illness and Addictions: Facts and Statistics” (2012) online: http://www.camh.ca/en/hospital/about_camh/newsr oom/for_reporters/Pages/addictionmentalhealthstatist ics.aspx

services and financial incentives to clients just

253

for playing on their site. The unregulated and offshore nature of these sites also renders the PCMLFTA not applicable, making them more attractive to criminal groups. Thus, the criminal 91 |CUJLS 2015


market fills the gap created by the legitimate

creates an illicit demand for the services and

market by providing 24/7 access, a greater

products offered by the criminal market. The

variety of games, and incentives for gambling

following section outlines the business process

besides winning. The lack of financial reporting

which may be used by organized crime groups to

requirements also makes this market ideal for

exploit this demand and build their online

criminal groups. A recent internet survey

gambling enterprise.

confirmed the applicability of this theory, BUSINESS PROCESS finding that the primary reasons for engaging in Organized crime groups use two online gambling are the convenience, primary approaches to online gambling. The first accessibility, anonymity, preference for pace and method involves the criminal group using the nature of online games, and the greater financial operation of a gambling site as a legitimate 255

incentives for a lower cost.

Similarly a recent business by operating it in a jurisdiction where

report on security related to online gambling such a business is legal. They then recruit found that gambling sites were ideal for legitimate clients from around the world, such as organized crime groups and money laundering Canadians, and offer them gambling services. In for four main reasons: The large volume of return for offering services, the organized crime financial transactions, the lack of a physical group, as site operator, takes a percentage of all product or currency; virtual exchanges occur

bets and wagers as a fee, known as “rake”.

instantly, winnings are tax free in many Since the organized crime group is operating the jurisdictions and anonymity.256 site in a jurisdiction where it is a legal business, Thus, the ECT clearly demonstrates a gap in the legitimate gambling market that 255Robert

T. Wood, Robert J. Williams & Paul K. Lawton., “Why do Internet Gamblers Prefer Online Versus Land-based Venues? Some Preliminary Findings and Implications” (2007) 20 Journal of Gambling Issues 235. 256 McFarland, supra note 12.

they are able to claim revenues from the site as legitimate business profits which can then either be invested into legitimate avenues, such as real estate, or used to finance illegal activities. This is where the second method comes into play. 92 |CUJLS 2015


The organized crime group sets up fake

government.258 The first is restriction and

accounts on its own site which are used by

prohibition of online gambling which would

members to launder the funds from other illegal

make it an offence for Canadian citizens to

activities. It works by having one or several

engage in online gambling through unlicensed

members act as “mules” who deposit the funds

sites. Patrons of unregulated sites would no

into the accounts. They then enter a games room,

longer be able to claim winnings from such sites

typically a high stakes poker room, in which the

as tax-free income but would instead face heavy

room is full of mules and one “collector”

fines and possible jail time. 259 This prohibitive

account. The mules purposely lose to the

approach is the one taken by the current U.S.

collector. The collector is then able to obtain the

government and the goal of a recent Quebec

funds as a payout and transfer them to a bank

government decision to order internet service

account as legitimate gambling winnings which

providers to block unlicensed gambling sites.260

is tax-free income and can be used as discussed

This approach has a serious problem that has

above. While this is happening the site still

been exhibited in history through the U.S.

collects rake for providing the services which it

prohibition of alcohol. Instead of reducing

can again claim as profits. This means, unlike

participation, restrictions and prohibitions

previous methods of laundering money, no value

increase the illicit demand and fuel the growth of

is lost. 257

criminal enterprises operating in the illegal market. Furthermore, the legality of a province

STATE RESPONSE STRATEGIES or state governing the World Wide Web raises The problem with online gambling is that it occurs across national borders, preventing any one government from being able to regulate it entirely. There are three general approaches that can be taken by the Canadian

257

Ramage, supra note 15.

258Jan

McMillen, “Online Gambling: Challenges to National Sovereignty and Regulation” (2000) 18:4 Prometheus 391. 259 Compare Radonjic v. Canada (Revenue Agency), 2013 FC 916, [2013] CarswellNat 3290. 260 Christine Dobby & Nicolas Van Praet, “Quebec Plans to Order ISPs to Block Unlicensed Gambling Sites” The Globe and Mail (27 March 2015) online: http://www.theglobeandmail.com/report-onbusiness/quebec-plans-to-order-isps-to- block-illegalgambling-sites/article23657414/

93 |CUJLS 2015


serious issues that are outside the scope of this

Hence, it appears that no general

paper. Thus, this approach is an ineffective

approach on its own will be sufficient for

response to the online gambling criminal market.

combatting the criminal market of illegal online

The second approach is to target gambling sites

gambling, but rather, an integrated approach

and make it difficult for them to recruit

must be applied. Considering that a recent

Canadians. While this approach has seen some

investigation found that enforcement agencies

success in preventing offshore sites from

are understaffed, undertrained and have a lack of

opening Canadian bank accounts, it poses

resources, the first step for the Canadian

similar problems of actually increasing the

government must be to raise awareness and

demand for an illicit market and alternative

allocate the proper resources for combatting this

forms of payment.261 The third approach is a

threat. This includes both provincial and federal

laissez-faire approach in which the Canadian

government cooperation and support as

government would step back and let the market

________. The next step is to develop and

shape itself. The premise is that competition

implement real time monitoring strategies with a

between gambling sites would force operators to

network of international partners as transnational

“be better� than each other in terms of

collaboration is essential regardless of how the

credibility, security, accountability, and quality

Canadian government decides to address the

of services.262 This approach makes sense other

criminal market of online gambling.

than it would allow organized crime groups a CONCLUSION legitimate stake in the market, and thereby Illegal online gambling is cited as a legitimize their primary source of financing their multi-billion dollar industry, and has been criminal activities. identified as one of the top sources of revenue for organized crime. While there is little B-Filer Inc. v. TD Canada Trust, 2008 ABQB 749, [2008] CarswellAlta1969 at 46-55; B-Filer Inc. et al. v. The Bank of Nova Scotia, 2006 Comp. Trib. 42, [2006] C.C.T.D No.36 at 176. 262 McMillan, supra note 23. 261

empirical evidence for the major presence of illegal online gambling syndicates in Canada, 94 |CUJLS 2015


the recent proliferation of online gambling sites

and economic consequences for Canada. As

exposes Canada to exploitation from global

Canada’s stance towards offshore and

crime groups. The lack of clear, consistent and

unregulated internet gambling remains in limbo,

enforced legislation pertaining to online

it is unlikely that a reduction in activity in this

gambling contributes to the potential for

criminal market will occur. As such, it

exploitation by a criminal enterprise. As this

paramount that the Canadian government

paper has demonstrated, organized crime groups

develop clear and effective regulations to

can capitalize on the online gambling market in

combat the threat posed by the emerging

a variety of ways which all have serious societal

criminal market of illegal online gambling.

95 |CUJLS 2015


BIBLIOGRAPHY LEGISLATION Criminal Code, RSC 1985, c C-46. Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000 c.17.

JURISPRUDENCE B-Filer Inc. v. TD Canada Trust, 2008 ABQB 749, [2008] CarswellAlta1969. B-Filer Inc. et al. v. The Bank of Nova Scotia, 2006 Comp. Trib. 42, [2006] C.C.T.D No.36. Radonjic v. Canada (Revenue Agency), 2013 FC 916, [2013] CarswellNat 3290.

SECONDARY MATERIALS Centre for Addictions and Mental Health, “Mental Illness and Addictions: Facts and Statistics”

(2012)

online:http://www.camh.ca/en/hospital/about_camh/newsroom /for_reporters/Pages/addictionmentalhealthstatistics.aspx Dobby, Christine & Nicolas Van Praet, “Quebec Plans to Order ISPs to Block Unlicensed Gambling Sites” The Globe and Mail (27 March 2015) online: http://www.theglobeandmail.com/report-onbusiness/quebec-plans-to-order-isps-to- block-illegal-gambling-sites/article23657414/ Ernesto, Savona, et al., “Understudied Areas of Organized Crime Offending: A Discussion of the Canadian Situation in the International Context” (2011) Ottawa, ON: Public Safety Canada. Ferentzy, Peter & Nigel Turner, “Gambling and Organized Crime: A Review of the Literature”

(2009)

23 Journal of Gambling Issues 111. Humphreys, Adrian, “RCMP Charge Six Men, Seize $2.5M in Cash, After Multiple Raids in Connection with ‘Mafia-linked’ Illegal Gambling Ring” National Post (5 February 2013) online: http://news.nationalpost.com/news/canada/glitzy-super-bowl-gala-turned-gang-takedownrcmp-bust-illegal-gambling-ring-with-alleged-ties-to-hells-angels-mafia Hunt, John, “The New Frontier of Money Laundering: How Terrorist Organizations use Cyberlaundering to Fund their Activities, and How Governments are Trying to Stop them” (2011) 20:2 I & Comm T L 133. McBride, Jessica & Jeffrey Derevensky, “Internet Gambling Behaviour in a Sample of Online Gamblers” (2009) 7 International Journal of Mental Health Addiction 149.

96 |CUJLS 2015


McFarland, Charles, Francois Paget & Raj Samani, “Jackpot! Money Laundering through Online Gambling (2014) McAffee Labs – White Paper McMillen, Jan, “Online Gambling: Challenges to National Sovereignty and Regulation” (2000)

18:4

Prometheus 391. McMullan, John L. & Aunshul Rege, “Online Crime and Internet Gambling” (2010) 24 Journal of Gambling Issues 34. McMullan, John L. & David Perrier, “The Security of Gambling and Gambling with Security: Hacking, Law Enforcement and Public Policy” (2007) 7 International Gambling Studies 43. Pomeroy, Steve, “The Cost of Homelessness: Analysis of Alternative Responses in Canadian Cities” (2005) Canadian Alliance to End Homelessness, online: http://www.caeh.ca/abouthomelessness/the-cost-of-homelessness/ Ramage, Sally, “Information Technology Facilitating Money Laundering” 21:3 Information & Technology Law 269. Skoinick, Jerome, H., “Gambling” In Dressler (ed) Encyclopedia of Crime and Justice (New York: Macmillan Reference USA) 723. Smith, Dwight C. Jr., “Organized Crime and Entrepreneurship” (1978) 6:2 International Journal of Criminology and Penology 161. Smith, Dwight C. Jr., “Some Things that may be More Important to Understand Organized Crime than Cosa Nostra” (1971) 24 U Fla L Rev 1. Wilson, Mark, “Chips, Bits, and the Law: An Economic Geography of Internet Gambling” (2003) 35 Environment and Planning 1245. Wood, Robert T. & Robert J. Williams., “Problem Gambling on the Internet: Implications for

Internet

Gambling Policy in North America” (2007) 9:3 New Media & Society 520. Wood, Robert T., Robert J. Williams & Paul K. Lawton., “Why do Internet Gamblers Prefer Versus Land-based Venues? Some Preliminary Findings and Implications” (2007) 20

Online

Journal of

Gambling Issues 235.

97 |CUJLS 2015


-----------------------Feminist Legal Issues ------------------------

98 |CUJLS 2015


Prejudice in Private: The Experience of Disadvantaged Groups in Canadian Prisons Christopher Dias INTRODUCTION Canada is considered to be a nation

being universally accepting and considerate of its people, Canada is home to a system of

comprised of accepting individuals, a matter

incarceration that regulates – rather than

that the Constitution has formally echoed

accepts – the identities of its inhabitants and

since 1867.263 This affirmation has long

arbitrarily determines which of their basic

been accepted as truth because of the diverse

human rights – if any – are to be recognized

landscape that Canadians find themselves

and protected while behind bars.265 There

living in, thanks in part to the heterogeneity

are multiple groups that suffer deep

of its citizens today. However, just beneath

injustices at the hands of this system as

the surface of this multi-faceted mosaic lies

exemplified by the historical and

a veiled hierarchy of indifference and

contemporary treatment of women and those

neglect that extends to various types of

with mental illnesses. The human rights of

individuals.264

these prisoners have consistently been at the

This unsettling sentiment is quite

mercy of Canada’s correctional system.

evident in the current state of the Canadian

Raising awareness of their plight will not

prison system. For a country lauded for

only prompt a more comprehensive look

263

265

Julian V. Roberts & Doob, Anthony N., "Race, Ethnicity, and Criminal Justice in Canada." Crime and Justice 21 (1997) at 469. 264 Ibid at 471.

Allison Smith, "Stories of 0s: Transgender Women, Monstrous Bodies, and the Canadian Prison System." Dalhousie Journal of Legal Studies 23 (2014) at 149.

99 |CUJLS 2015


into the ongoing struggles of female

their health. Systemic inequality has become

prisoners and those with mental illnesses, it

a cornerstone of a functional prison system

will subsequently aid in the pursuit of

and Canada is not exempt from this

operational reform, as well.

standard.267 As a result, it is imperative that Canadians are made aware of the injustices

The dignity of prisoners is often being administered to their fellow citizens in forgotten about both by the law and the their own backyard. Only through this public. As a result, they are susceptible to revelatory analysis can the people hope to adverse treatment in the form of sexual expose the system’s injustices and assault, physical violence, deprivation of subsequently pursue major reform as the necessities, and more flagrant instances of disregard.266 As disadvantaged groups in society, the placement of women and people

country seeks a superior correctional system. WOMEN & PRISONS

with mental illnesses in Canadian prisons

As recently as 2010, women were

has the distinct possibility of exposing them

statistically the fastest growing prison

to frequent abuses of their basic human

population worldwide.268 This fact does not

rights; the risk is even greater if their

necessarily suggest that women possess a

identities are intersectional. The evidence of

higher likelihood to offend, but rather that

ignorance is tangible: women’s experience

there is a disproportionately high rate of

with discrimination is exacerbated, and the

criminalizing women worldwide. This trend

mentally ill are denied the appropriate care

implicitly impacts mothers, daughters,

they require in order to maintain or sustain

sisters, wives, and many other types of

266

267

Akwasi Owusu-Bempah, et al, "Years of Life Lost to Incarceration: Inequities Between Aboriginal and Non-Aboriginal Canadians." BMC Public Health 14.585 (2014) at 4.

Debbie Kilroy & Pate, Kim, "Activism Around Gendered Penal Practices." Current Issues in Criminal Justice 22 (2010) at 325. 268 Ibid at 329.

100 |CUJLS 2015


women.269 This is especially true for those

factors that lead women to offend are

who are socially, racially, culturally, or

ignored in order to pursue imprisonment

economically predisposed to be

instead. The actions of single mothers

disadvantaged (i.e. women in a third-world

looking out for their children, for example,

nation).270 In Canada, this is an even harsher

are often left unaddressed in favor of

reality given the protections generally

incarceration. The correlation between

afforded to people under the Canadian

women in poverty and mental illness,

Charter of Rights and Freedoms; the

substance abuse, etc. is also disregarded

evidence bluntly indicates that they are not

because of their invisible status. The

applied to women that have been

isolating characteristic of incarceration is

incarcerated.271

relied upon to teach them a lesson as

A correlation exists between this

opposed to addressing the root of the matter

denial of rights and the frequency by which

directly.273 To aggravate the issue further,

women can be incarcerated. In fact, the

female inmates are frequently designated as

system has become so good at naturalizing

maximum security prisoners because of the

female inmates as faceless prisoners that

assumption that women who offend are

they are rebranded as depersonalized units

extremely difficult to deal with.274

as opposed to human beings.272 This trend

In the current iteration of the

occurs before being subjected to the

Canadian correctional system, women are

correctional system, as well, when the

susceptible to experiencing brutal, sexist, racist, sadistic, and misogynistic behaviour

269

Ibid at 325. 270 Ibid at 326. 271 Ibid at 326. 272 Laurene Rehman, et al, "Harm Reduction and Women in the Canadian National Prison System: Policy or Practice?" Women & Health 40.4 (2005) at 59.

within prison that compromises their

273 274

Kilroy & Pate, supra note 5 at 325. Ibid at 330.

101 |CUJLS 2015


potential for rehabilitation by perpetuating

also known for chronically injuring herself.

an unsafe environment. Prison extends their

Instead of addressing her tendency to self-

experience of powerlessness into a confined

harm she was presumed to be problematic,

space; they can be violently harmed by other

manipulative, and dangerous given her

inmates and sexually assaulted by prison

history of violent outbursts. At the age of

guards. Here, there is no room to preserve a

nineteen, the correctional staff watched from

woman’s basic rights.275 Because of such

the hallway under orders to not intervene as

abhorrent treatment, some women conclude

she committed suicide in her cell. They did

that the only way to escape their fate is

not act until after she had already

death.276 Though suicide is not exclusive to

succeeded.277

female inmates, it is deeply concerning that

It is worth acknowledging that those

women can experience such extreme

with the power to facilitate reform have

conditions in prison that cause them to

attempted to do so in the past, yet evidently

engage in self-harm.

not in a manner that proved to be effective.

Ashley Smith is one of the most

The closing of the Prison for Women (P4W)

renowned cases in recent Canadian history

in Kingston, Ontario back in 2000 merely

that exemplifies the plight of a woman in

spawned more women’s prisons and even

prison. Her first brush with the law came

some all-female wings located within male

about when she was caught throwing apples

prisons.278 Reform organizations such as the

at a mailman. Though her various offences

Canadian Association of Elizabeth Fry

were similarly minor in nature, she

Societies (CAEFS) promptly deduced that

eventually landed in federal prison. She was

275 276

Ibid at 325. Ibid at 326.

277

Jennifer M. Kilty, "A Preventable Death." Rev. of Suicide and Self-Harm in Prisons and Jails. Punishment & Society 14.4 (2012) at 482-83. 278 Killroy & Pate, supra note 5 at 328.

102 |CUJLS 2015


this mild tinkering of the correctional system

multiple times.284 The caveat accompanying

was futile given that the construction of the

this is a detrimental one – the shortage of

system itself is fundamentally flawed in

bleach that prisons often experience forces

regards to how it treats women.279

the staff to dilute the supply they have,

One stringent example of women’s

causing the product to become weaker and

struggles behind bars is in regards to their

thus less effective.285 This means that there

exposure to HIV/AIDS. As recently as 2005,

is an increased risk of one female inmate

the rate at which women in Canadian prisons

passing HIV onto another through the

with HIV contracted the virus tripled the

sharing of a needle that was improperly

number of male inmates that did so, as

cleaned. It has been reported that the

well.280 While that statistic has certainly

rationale for a prison to not offer its inmates

evolved in the past decade, the ratio of

a needle exchange program is to discourage

women to men is nonetheless alarming.281

the usage of drugs for fear of promoting

Given the conditions that these women have

risky behaviour.286 Though this is a rational

to live in, it should come as no surprise that

concern, by not providing these women with

their exposure to HIV is exceptionally

the proper supplies, the prison is

probable.282 Much like in public, sterile

inadvertently prompting the inmates to

needle exchanges in prison are rare if not

engage in risky needle use regardless. The

entirely non-existent.283 Prisoners have to

same reasoning applies to the lack of access

resort to using bleach to sanitize used

to dental dams in some facilities; the prisons

needles in order to share them or use them

are afraid of promoting risky sexual

279 280 281 282 283

Ibid. Rehman et al, supra note 10 at 59. Ibid. Ibid at 58. Ibid at 59.

behaviour when – in all likelihood – some 284 285 286

Ibid at 67. Ibid. Ibid at 60.

103 |CUJLS 2015


inmates would engage in such activities with

these inmates with access to the resources

or without these supplies.287

that every free woman has in order to better

Something that has become common practice in regards to the correctional

their living conditions while they serve their time.290

system’s disregard of women’s health is the

A specific subgroup of female

sustainability of a lower standard of care for

inmates relevant to this disregard of human

female inmates compared to the general

rights and subsequent need for reform is

female population. Their incarcerated status

transgender women. Generally, human

begets a loss of agency and lack of

bodies that do not conform to the strict

autonomy, thus the system does not work as

gender binaries prescribed by society are

hard to care for them as the healthcare

considered to be unwanted by the system.291

system must do for those who live freely in

For one, they are contrasted against

society.288 The irony of this is that if an

cisgender women (females that have had

inmate’s health is harmed while

their gender and anatomy already aligned

incarcerated, the prison is the first to be

since birth) and presumed to be inferior

scrutinized. Thus, there is a need to focus

copies given their originally unaligned

less on budgetary concerns and more on

disposition. Contemporarily, there have been

allocating the necessary resources to

issues in recognizing what constitutes a

improve the lives of incarcerated women to

woman under the law (re: rulings on

avoid exposure to disease and untimely

transgender women being able to use public

death.289 The government needs to reinvest

female restrooms); this embedded

in women’s health services and provide

transphobia carries over to the correctional

287 288 289

Ibid at 59-60. Ibid at 59. Ibid at 71.

290 291

Kilroy & Pate, supra note 5 at 331. Smith, supra note 3 at 149.

104 |CUJLS 2015


system because it permits the presence or

and relying on them for sexual fulfillment

lack of body parts (i.e. penis versus vagina)

(consensual or not).296 Transgender women

to signify a claim to rights.292 To phrase this

only had a slim possibility of being housed

differently, transgender women are

with their target gender (females), and even

figuratively placed outside the sphere of

if they were able to, often the results could

‘human being’ based on their anatomical

be just as humiliating. There are documented

construction both in society and in a prison

cases of transgender women being split

setting.293

searched if they possessed male anatomy; a

Using this distinguishing

woman would search their top half and a

characteristic as a systemic mechanism of

man would search their bottom half.297

oppression, incarceration provides inmates

These instances demonstrate a significant

and personnel alike with the space to shame

risk of being humiliated, abused, violated, or

the body of a transgender person.294 Before

killed within the correctional system because

the 21st century, for example, pre-operative

it exposes their personal anatomy to other

transgender women were housed with male

individuals; a prison guard could later

inmates because of their biological anatomy.

retaliate out of disgust for – amongst other

This proved to harm them both mentally (i.e.

things – having to search them. Practices

ridicule) and physically (i.e. sexual abuse,

such as these deny transgender women the

violence).295 They would be forced to take

right to be identified as the gender of their

on archaic roles stereotypically meant for

choosing.298 Much like with female inmates

women such as cleaning, doing the laundry,

in general, these violations persist in a space that denies them the ability to carry out their

292 293 294 295

Ibid. Ibid at 150. Ibid at 156. Ibid at 154.

296 297 298

Ibid at 157. Ibid at 151. Ibid at 157.

105 |CUJLS 2015


sentences safely and humanely without the

people with mental health issues in prison.301

threat of harm and/or humiliation looming

As of 2010, there were as many as three

over them.

times more prisoners with mental illnesses

MENTAL ILLNESS & PRISONS

than those without.302 Most of these

Another myth that should be exposed

conditions are manageable with the proper

is the presumption that the Canadian health

resources; the stigma surrounding mental

care system is universally accessible.299 The

illness, though, has done irrevocable damage

mental health of prisoners is often

to how prisons treat afflicted inmates.

overlooked – if not neglected completely –

Prisons have accepted people with mental

thus inciting an absence of awareness and

illnesses as criminals for over 200 years,

lack of support for their well-being.300 Even

historically disregarding their need for care

prior to incarceration, mental health can

in favour of punitive justice.303 Accordingly,

impact an individual’s cognitive, emotional,

individuals with mental illnesses have

and behavioural functions in a manner that

become a de facto component of the

correlates with the fulfillment of a criminal

criminal justice system.304 The “tough on crime” stance that

offence. Unfortunately for the offender, these factors can influence a court’s finding

Canada has adopted in the last decade

of guilt (i.e. determining if they were

disproportionately impacts those with

remorseful), hence the high number of

mental illnesses because they are subjected to corrective measures that categorize them

Gary Chaimowitz, "The Treatment of Mental Illness in Correctional Settings." Canadian Journal of Psychiatry 57.1 (2012) at 2. 300 Noni MacDonald, et al, "The Crime of Mental Illness." Editorial. Canadian Medical Association Journal 21 Sept. 2010 at 1399. 299

Julio Arboleda-Flórez, "Mental Patients in Prisons." World Psychiatry 8 (2009) at 187. 302 MacDonald et al, supra note 38. 303 Arboleda-Flórez, supra note 37 at 188. 304 Ibid at 187. 301

106 |CUJLS 2015


as violent offenders instead of seeing their

gender, race, socio-economic status, age,

violent behaviour as a symptom of their

etc. that could assist in uncovering the root

condition.305 This transition of someone with

of one’s issues the correctional system is

a mental illness from society directly into

more concerned with confining people that

the criminal justice system, otherwise

could be better helped elsewhere.309

known as transinstitutionalization, is so

Some of the mental illnesses

rampant that the United States uses Canada

afflicting inmates directly correlate with the

as an example to investigate the prevalence

crimes they have committed; pyromania and

of mental health issues in prison settings.306

kleptomania belong to this category.310

This overreliance on incarceration has

Other prevalent illnesses that could be

numerous detrimental effects that can harm

aggravated by incarceration or develop as a

the well-being of an individual prisoner.

result of it are schizophrenia, depression,

Substance disorders can go unacknowledged

bipolar disorder, etc.311 Comorbidity – the

by the correctional staff because of a lack of

ability to be afflicted by more than one

training on how to detect them.307 Long

mental health issue simultaneously – is quite

mandatory sentences, strict parole criteria,

common amongst those with mental

and regulations such as the “three strikes”

illnesses in prison.312 The lack of sensitivity

rule all contribute to the aggravation of

training and relevant programming has left

one’s mental condition.308 Instead of

correctional personnel with little choice but

accounting for characteristics such as

to segregate and punish those that prove to

Chaimowitz, supra note 37 at 1. Pamela M. Diamond, et al, "The Prevalence of Mental Illness in Prison." Administration and Policy in Mental Health 29.1 (2001) at 22-3. 307 Ibid at 30. 308 Ibid at 22.

309

305 306

310 311 312

Ibid at 31. Arboleda-Flórez, supra note 39. Chaimowitz, supra note 37. Diamond et al, supra note 44 at 21.

107 |CUJLS 2015


be problematic.313 The improper handling of

3.7% of male inmates were diagnosed with a

those with mental health issues can cause a

psychotic illness, 10% suffered from major

destabilization of the cellblock (i.e.

depression, and an overwhelming 65% had a

commotion caused when removing an

personality disorder. Similarly, 4% of

inmate) and, perhaps far more detrimental,

women had psychotic illnesses and 42% of

lead correctional officers to become

them had a personality disorder.317

apathetic in regards to caring for the inmates

Generally, women were found to be more

properly.314 The situation of Ashley Smith

likely to possess comorbid disorders, which

again serves as a good indicator of what

would only serve to compound their issues

happens to an inmate when they are not

in prison.318

treated properly nor are their mental health issues adequately addressed.315 Correctional psychiatry – the study

Having a high proportion of inmates with mental health issues reduces the rehabilitative potential of the correctional

of “incidence, prevalence, determinants, and

system, which does not benefit society as a

management of mental disorders” in the

whole.319 Not only does a lack of

prison system – is informative in the sense

community resources place an unnecessary

that one can get an understanding of how

burden on the staff of prisons and

mental illness can impact prisoners in

correctional facilities, but the absence of

different ways.316 Studies conducted as

appropriate in-house treatment and the

recent as 2009 examined offenders from

overreliance on abuse does nothing but

many different countries around the world.

aggravate this deficiency.320 The criminal

313 314 315 316

Chaimowitz, supra note 37 at 1. MacDonald et al, supra note 38. Ibid. Arboleda-Flórez, supra note 39 at 188.

317 318 319 320

Ibid. Diamond et al, supra note 44 at 32. MacDonald et al, supra note 38. Chaimowitz, supra note 37 at 1.

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justice system and the mental health system

the very least it should take into account the

do not need to operate as segregated entities;

state of their mental health.

protocols can and should be tailored to address both the illness and the magnifying

CONCLUSION

effect of a harsh prison environment.321 The

The policies that support these

necessity of this can again be exemplified by

discriminatory and neglectful practices are

the comorbidity of female inmates.322

generally implicit as opposed to explicit, so

Regular access to psychiatric professionals

there is a real difficulty in facilitating

should be afforded to those afflicted with a

tangible change.325 As an example, one can

mental illness, especially for the inmates that

look no further than the “tough on crime�

have already been subjected to segregation

stance that the Canadian government has

and abuse.323 To assuage the problem long-

adopted in the past decade; it implicitly

term, however, it is imperative that the

permits subjecting prisoners to these

personnel at these facilities are trained to

injustices in the pursuit of deterrence.326

recognize the signs of these health

Women will continue to be subjected to

conditions and know how to appropriately

archaic notions of gender through sexist

treat prisoners without resorting to abusive

policies and those with mental illnesses will

tendencies such as solitary confinement and

have to endure the absence of adequate care

physical violence.324 Incarceration may not

to sustain their health. The intersectionality

be an ideal solution for those who possess a

of any or all of these identities poses an even

mental illness, but if it must be used then at

greater risk to human dignity if prisoners

321 322 323 324

Diamond et al, supra note 44 at 37. Ibid at 21. Chaimowitz, supra note 37. MacDonald et al, supra note 38.

325 326

Roberts & Doob, supra note 1 at 517. MacDonald et al, supra note 38.

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cannot be treated humanely while they serve

antiquated system of abuse to continue

their sentences.

harming those that already suffer a great

It is crucial that proper research is conducted in order to gain a greater

deal at the hands of a society still riddled with discriminatory inclinations.

understanding of how different types of minorities experience the prison environment. Likewise, it is critical that Canada’s correctional system has the appropriate protocols in place to handle a variety of diverse issues.327 Strategies to combat systemic misconduct such as independent oversight or harsh financial penalties for permitting injustices to occur keeps the correctional system within the law and greatly improve the quality of life for prisoners while incarcerated, as well as preserve the safety of the public by endeavouring to ensure that these inmates leave prison as rehabilitated individuals.328 The absence of reform would permit this

Arboleda-Flórez, supra note 39 at 188. Rick Ruddell & Gottschall, Shannon, "The Prison Adjustment of Aboriginal Offenders." Australian & New Zealand Journal of Criminology 47.3 (2014) at 337. 327 328

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BIBLIOGRAPHY

Arboleda-Fl贸rez, Julio. "Mental Patients in Prisons." World Psychiatry 8 (2009): 187-89. Chaimowitz, Gary. "The Treatment of Mental Illness in Correctional Settings." Canadian Journal of Psychiatry 57.1 (2012). Diamond, Pamela M., Eugene W. Wang, Charles E. Holzer III, Christopher Thomas, and Des Angus Cruser. "The Prevalence of Mental Illness in Prison." Administration and Policy in Mental Health 29.1 (2001): 21-40. Kilroy, Debbie, and Kim Pate. "Activism Around Gendered Penal Practices." Current Issues in Criminal Justice 22 (2010): 325. Kilty, Jennifer M. "A Preventable Death." Rev. of Suicide and Self-Harm in Prisons and Jails. Punishment & Society 14.4 (2012): 481-84. MacDonald, Noni, Stephen J. Hucker, and Paul C. Hebert. "The Crime of Mental Illness." Editorial. Canadian Medical Association Journal 21 Sept. 2010. Owusu-Bempah, Akwasi, Steve Kanters, Eric Druyts, Kabirraaj Toor, Katherine A. Muldoon, John W. Farquhar, and Edward J. Mills. "Years of Life Lost to Incarceration: Inequities Between Aboriginal and Non-Aboriginal Canadians." BMC Public Health 14.585 (2014). Rehman, Laurene, Jacqueline Gahagan, Anne Marie Dicenso, and Giselle Dias. "Harm Reduction and Women in the Canadian National Prison System: Policy or Practice?" Women & Health 40.4 (2005): 57-73. Roberts, Julian V., and Anthony N. Doob. "Race, Ethnicity, and Criminal Justice in Canada." Crime and Justice 21 (1997): 469-522. Ruddell, Rick, and Shannon Gottschall. "The Prison Adjustment of Aboriginal Offenders." Australian & New Zealand Journal of Criminology 47.3 (2014): 336-54. Smith, Allison. "Stories of Os: Transgender Women, Monstrous Bodies, and the Canadian Prison System." Dalhousie Journal of Legal Studies 23 (2014): 149-71.

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The Protection of Communities and Exploited Persons Act : Protecting Everyone but Sex Workers Caitlin Salvino

INTRODUCTION In contemporary times, prostitution is

communicating in public with respect to a proposed act of prostitution under sections [s.

defined as the “selling of sex in exchange for

213 (1) (c)].331 The SCC held that these

payment”.329 In Canada sex work can take place

provisions infringed the Charter of Rights and

from unfixed outdoor locations on the streets or

Freedoms (Charter) s. 7 rights of sex workers by

from fixed indoor locations such as escort and

depriving them of security of the person in a

call-girl services, in massage parlours, private

manner that is not in accordance with the

apartments and in specialty clubs and bars,

principles of fundamental justice (protection

including strip clubs, hotels and some

from laws that are arbitrary, overbroad or

restaurants.330 In Canada (Attorney General) v.

grossly disproportionate).332 Parliament

Bedford (Bedford), the Supreme Court of

responded by passing Bill C-36, the Protection

Canada (SCC) struck down the Criminal Code

of Communities and Exploited Persons Act

of Canada (Code) provisions that criminalised

(2014).333 Canada adopted a form of the "Nordic

the keeping of a bawdy-house (S. 210), living on

model" whereby the "Johns" who purchase sex

the avails of prostitution [S. 212 (1)] or

are liable to criminal prosecution, rather than the

329 Department of Justice, Technical Paper: Bill C-36, Protection of

individuals who sell it. In Bill C-36 the

Communities and Exploited Persons Act, (Ottawa: Department of Justice, 1 December 2014 at 5. 331 Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at 330 House of Commons, Standing Committee on Justice and Human Rights, The

para 4.

Challenge of Change: A Study of Canada’s Criminal Prostitution Laws

332 Ibid at para 59.

(December 2006) (Chair John Maloney) at 5

333 Department of Justice, supra note 1 at 3.

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Canadian government shifted the objective of

This paper analyses and critiques the

the legislation from minimizing public nuisance

recently passed Bill C-36 and argues that,

to one that seeks to eliminate the demand for sex

despite its short title being the Protection of

work and therefore eradicate prostitution.334 To

Communities and Exploited Persons Act,

achieve this, Bill C-36 criminalises

Canada’s new prostitution legal regime does not

communication in public for the purpose of

adequately address concerns for sex workers’

prostitution, the advertisement of sexual services

safety. The legislation imposes the same

and third parties in the sex industry who gain

dangerous restrictions on sex workers that were

“material benefits” from sexual services. Bill C-

struck down in Bedford because it creates, as

36 gives immunity to sellers of sexual services

stated by Kerry Porth from the Pivot Legal

by viewing these individuals as victims who

Society, an environment in which “more

need support and assistance. The bill does not

exploitation, more violence and more

prohibit individuals from selling their sexual

desperation will occur”.338 First, the

services from a fixed indoor location.335 The

criminalisation of the purchase of sex will not

only circumstance where sex workers can be

lead to the eradication of sex work, rather it will

charged criminally is under s. 213 (1.1) of the

force the industry away from government and

Code if they are found to be communicating for

police oversight where more sex workers will be

the purpose of selling sexual services in public

harmed. Second, the provisions criminalising

places next to school grounds, playgrounds or

sex work commercial enterprises and the

daycare centres.336 Bill C-36 also makes an

advertising of sex work are overbroad and make

exception from the material benefit offence for

it impossible for sex workers to work from

individuals who offer protective services to sex

indoor locations. Furthermore, the

workers such as bodyguards or drivers.337

government’s creation of an exception from the material benefit offence for protective services

334 Ibid at 4. 335 Ibid at 9. 336 Ibid at 10.

338 Standing Senate Committee on Legal and Constitutional Affairs, Transcript (Evidence) of Proceedings, Issue 15 (September 9 2014).

337 Ibid at 11-12.

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does not enhance the safety of sex workers

enforce safety precautions. For example, s.

because the exception does not apply to

286.1 of the Code prohibits the “obtaining of

commercial enterprises. Finally, this paper

sexual services […] or communicating in any

concludes by challenging the legislation’s

place for that purpose”.341 Although sex

assumptions that sex work is inherently harmful,

workers will not face any criminal liability, their

that sex workers are always victims and that it is

customers will be acting in fear of criminal

the role of the government to regulate sexual

charges. As pointed out by Edward Herold, this

relations between consenting adults.

change will shift the relationship between sex workers and their clients from one of

THE CONSTITUTIONALITY (OR LACK friendliness and trust to one of anonymity and THEREOF) OF BILL C-36 apprehension.342 Sex work safety measures Bill C-36 creates an asymmetrical form through the creation of client lists or bad date of criminalisation, whereby the purchaser of sex databases will be negatively affected due to is criminally liable while the seller of sex is clients wanting to remain anonymous out of fear immune from prosecution, to achieve its goal of ending the “inherently exploitative” profession

that they will be arrested. Caroline Newcastle, an escort, supported this claim when she stated

of sex work.339 This unfortunately still has the that: potential to violate the Charter section 7 principles of fundamental justice, because the effect of the law is grossly disproportionate to the legislative objective.340

Bill C-36 will kill people. We are going to die because of this. If my clients are criminalized I will not be able to ask for identifiable information when they book appointments with me. I usually ask for their real first and last name, their telephone number and their home

The criminalisation of the purchase of sex will force the indoor and outdoor sex work industry away from government and police oversight where sex workers will not be able to

341 Department of Justice, supra note 1 at 5.

342 Standing Senate Committee on Legal and Constitutional Affairs, 339 Department of Justice, supra note 1 at 5.

Transcript (Evidence) of Proceedings, Issue 19 (October 29 2014).

340 Bedford, supra note 3 at para 103.

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address. Who is going to give that to me now?343

jump into cars quickly, and move to dark or more isolated areas. The rushed transaction denies the sex worker the time to innately sense whether a client is a “bad trick,” and moving to a darker, isolated area puts her in a more dangerous environment.346

The criminalisation of “Johns” will also result in street sex workers being unable to take necessary safety measures to ensure they are not

As noted by the Commissioner and sex workers engaging with a “bad date”. Street sex workers in the industry, Bill C-36 makes the ability to will be forced to displace themselves into properly screen clients or set terms in advance, isolated and poorly monitored locations to meet such as for the use of condoms before deciding clients. They will be forced to make quick to engage in sexual services with them, decisions about engaging with clients they meet practically impossible. These are the same because these “Johns” are fearful of being dangerous conditions that contributed to the caught. Sex workers will not have the ability to murders of over forty women (primarily sex properly screen clients before deciding to engage workers) at the hands of the serial killer Robert in sexual services with them.344 This point was Pickton.347 confirmed by the 2012 Missing Women’s The inability to institute safety measures Commission of Inquiry that found a clear was held to be unconstitutional in Bedford connection between enforcement of the because it made it difficult for sex workers to communication law and violence against sex protect themselves from dangerous clients or workers.345 Commissioner Wally Oppal situations.348 Similarly, Bill C-36, although not concluded that: explicitly criminalising these safety precautions, The fear of police harassment or arrest leads prostitutes to rush transactions, 343 POWER: Prostitutes of Ottawa-Gatineau Work, Educate and Resist,

is also disproportionate in relation to its stated objective of eradicating sex work because it

Brief submitted to The Standing Committee on Justice and Human Rights: The Protection of Communities and Exploited Persons Act, (2014) at 6-7. 344 Ibid at para 71.

makes it impossible for sex workers to enforce safety precautions with clients who fear being

345 Pivot Legal Society, Sex Workers United Against Violence & the Gender and Sexual Health Initiative, My Work Should Not Cost Me My Life, by Krusi et al.

346 Ibid.

(Pivot Legal Society, Sex Workers United Against Violence, and the Gender and

347 Bedford, supra note 3 at para 158.

Sexual Health Initiative, 2014) at 7 [My Work Should Not Cost Me My Life].

348 Ibid at para 146.

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caught and charged criminally.349 The

these policies are flawed and will not serve to

legislation’s role in isolating sex workers is thus

protect sex workers any more than the previous

in direct contradiction with the decision in

legislation did before Bedford.

Bedford whereby the SCC held that Parliament

In Bedford, the SCC explicitly stated

has the ability to pass legislation that regulates

that indoor work is significantly safer than street

sex work, however not by way of aggravating

work. It allows sex workers to have regular

the risk of disease, violence and death for sex

clientele and set up indoor safeguards such as

workers.350

receptionists, accountants, bodyguards and audio

A CRITIQUE OF BILL C-36’S

room monitoring.352 While Bill C-36 ensures

PROTECTIVE MEASURE EXCEPTIONS

that individuals cannot be “prosecuted for selling

In response to these critiques that the

their own sexual services, including from fixed

asymmetrical criminalisation of sex work

indoor locations”, the government has made the

imposes dangerous working conditions on sex

creation of safe fixed indoor locations for sex

workers, the Canadian government would

work unattainable.353 This is done through two

respond by highlighting the exceptions in Bill C-

provisions: a provision that prohibits the

36 aimed at enhancing the protective measures

advertising of sexual services and a provision

available to sex workers. These measures

criminalising the receiving benefit from sex

include: selling sexual services from fixed

work commercial enterprises.354

indoor locations, hiring persons who may serve

First, under s. 286.4 Bill C-36

to enhance safety and negotiating safer

criminalises knowingly advertising (in print

conditions for the sale of sexual services in

media or websites) the sale of sexual services for

public places.351 While in theory these measures

consideration.355 This provision demonstrates

seem like a balanced way to ensure sex workers

one of the many inconsistencies within Bill C-36

are able to work in safer conditions, in practice

352 Bedford, supra note 3 at para 67. 353 Department of Justice, supra note 1 at 9.

349 Ibid.

354 Bill C-36, Protection of Communities and Exploited Persons Act, 2d Sess,

350 Ibid at para 88.

41st Parl, 2014 at s.286.2-286.4.

351 Department of Justice, supra note 1 at 10-11.

355 Ibid at 6.

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whereby it recognises that it is safer for sex

strip club, massage parlour or escort agency in

workers to work from fixed indoor locations, yet

which sex work takes place.358 This legislation

makes it impossible for sex workers to advertise

however, fails to explicitly define what a

to prospective clients their location or even

commercial enterprise is other than that it

existence. This paradox was questioned by

“necessarily involves third party profiteering”.359

Caroline Newcastle when she asked:

An enterprise excluded from this provision is

Where am I going to advertise my sexual services if it’s illegal? I use a lot of third party websites and pay to have my advertisements posted. I post about what I do and don’t offer, my rates, and my boundaries. How am I going to communicate that to clients now?356

one that involves individuals who sell their own sexual services, whether independently or cooperatively, from a particular location or from different locations.360 Unfortunately, the government’s attempt

Consequently, for their business to survive many of these sex workers will be forced to turn to the

to make sex work safer by providing an

streets (already acknowledged by the SCC to be

exemption from the material benefit offence for

significantly more dangerous) to find clients

individuals who offer protective services to sex

because working from a fixed indoor location

workers, such as drivers or bodyguards, does not

that clients are unaware of is not profitable.357

extend to protective services within commercial

Second, Bill C-36’s prohibition of sex

enterprises.361 Essentially, the indoor locations

work commercial enterprises is problematic

that are exempted from Bill C-36 are so

because it makes the creation of safe fixed

narrowly defined that they are practically

indoor locations for sex work financially

inaccessible for individual sex workers to

unattainable. S. 286.2 of the Code prohibits sex

establish. A single sex worker will not have the

workers or third parties from “receiving benefit

means to establish an indoor location with

in the context of a ‘commercial enterprise’ that

proper safety measures including protective

offers sexual services for sale”, this includes a 358 Department of Justice, supra note 1 at 7. 359 Ibid. 356 POWER, supra note 15 at 6-7.

360 Ibid at 11.

357 Bedford, supra note 3 at para 134.

361 Ibid at 7.

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services, receptionists and audio room

preamble, Bill C-36 states that the “Parliament

monitoring. They risk being charged under s.

of Canada has grave concerns about the

286.2 if they establish a business (such as a

exploitation that is inherent in prostitution”.364

brothel) with other sex workers to afford the

The legislation goes on to label all sex workers

safety measures.362 Bill C-36 implicitly

as victims “who need support and assistance,

criminalises the creation of “bawdy houses”,

rather than blame and punishment”.365 These

which were held by the SCC in Bedford to

assumptions promote a false notion about sex

improve the safety of sex workers by providing

workers that is not supported by the evidence

the benefits of “proximity to others, familiarity

submitted to the SCC in Bedford and upheld in

with surroundings, security staff, closed-circuit

its judgement, which found that some women do

television and other such monitoring that a

freely choose to enter this profession. The

permanent indoor location can facilitate”.363

testimony provided by the applicants Ms.

Thus, the government’s claim that it has created

Bedford, Ms. Scott and Ms. Lebovitch affirmed

safer working conditions for sex workers by

that they entered sex work by choice, that they

allowing the creation of fixed indoor locations

enjoy sex work and that they would like to

and exempting protective services from the

continue in the business of sex work after the

material benefit offence, is a false one.

decision. This testimony problematizes the

REMOVING AGENCY AND FURTHER STIGMATIZING SEX WORK IN CANADA

government’s assumption that all sex work is inherently exploitive and degrading.366

Finally, this paper will challenge Bill C-

In pursuing its legislative objective to

36’s assumption that sex work is inherently

eradicate sex work, Bill C-36 places sex workers

harmful, sex workers are always victims and that

in the category of victims alongside women who

it is the role of the government to regulate sexual

are trafficked and underage sex workers. It

relations between consenting adults. In its

364 Bill C-36, Protection of Communities and Exploited Persons Act, 2d Sess, 41st Parl, 2014 at pre-amble.

362 Ibid.

365 Department of Justice, supra note 1 at 9.

363 Bedford, supra note 3 at para 134.

366 Bedford, supra note 3 at para 8-14.

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promotes the rhetoric that it will protect these

Making Trouble: Prostitution as a Social

women and children. However, as

Problem” argues that assuming sex work is

acknowledged in its own legislative summary,

oppressive justifies the state’s moral regulation

the Canadian government does not need Bill C-

whereby they marginalize and control sex

36 to protect the lives of sex workers and

workers.370 She points out that in Canada from

communities because it can rely on the extensive

the 1970’s to 1990’s particular forms of sex

provisions already existent in the Code aimed at

work were produced by the media, commission

protecting Canadians from violence, abuse or

reports and police as a visible and regulate-able

other crimes.367 These provisions include but

social problem that required legislative

are not limited to: uttering threats (s. 264.1),

response.371 These institutions created through

intimidation (s. 423), theft (s. 322), robbery (s.

active social processes the assumption that sex

343), extortion (s. 346), kidnapping and forcible

work is inherently exploitive and must be

confinement (s. 279), bodily harm (s. 269),

regulated by the state.372 The government was

assault (s. 265-268), sexual assault (s. 271-273)

able to justify its later moral regulation on

and criminal harassment (s. 279.011).368 To

individual’s sexual conduct (through the

address issues of human trafficking and

criminalisation of sex work) by labeling sex

underage sex work, law enforcement agencies

work as a social problem.373 Bill C-36, regulates

can use s. 279.01 (indictable offence to traffic

and prohibits certain forms of consensual adult

persons) and s. 279.011 (trafficking of persons

sex by reducing sex workers to victims. In

under the age of eighteen).369

doing so, it fails to respect the autonomy of sex

This reality reveals Bill C-36’s attempt

workers and by extension consenting adults.

to regulate sexual relations between consenting 370 Deborah Brock, “Sexual Regulation and Sex Work” in Making Work,

adults. Deborah Brock in “Making Work,

Making Trouble: Prostitution as a Social Problem (Toronto: University of Toronto Press, 1998) at 9.

367 Department of Justice, supra note 1 at 5.

371 Ibid

368 Criminal Code, RSC 1985, c C-46, at s 264.1, 265-268, 269, 271-273, 279,

372 Ibid at 11.

279.011, 322, 343, 423. 369 My Work Should Not Cost Me My Life, supra note 17 at 11.

373 Ibid at 9.

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The assumption that sex work is inherently

dangerous situations on sex workers making

exploitive is extremely problematic because it

them a target for predators.377

leads to the silencing and further stigmatization of sex workers in Canada.374 Criminalization increases the stigma

Moreover, sex work may not be more degrading or exploitive than many “acceptable” jobs for women in the capitalist Canadian

towards sex workers and their profession. Case

society. One sex worker interviewed by Brock,

in point, the Nordic model introduced in Sweden

stated “I was not accorded a great deal more

has caused sex workers to avoid police and

respect working as a chambermaid in my green

distrust authorities because they and their work

smock than [another sex worker] was as a

are stigmatized. For example: one report noted

prostitute in her silk stockings”.378 The

that sex workers:

historical economist Karl Marx once wrote,

experienced an increased stigmatization after the introduction of Sex Purchase Act […] many say they don’t feel fairly or respectfully treated: they are not regarded as fully worthy members of society.375

“prostitution is only a specific expression of the general prostitution of the labourer”.379 Brock and many sex workers apply Marx’s theory to argue that all work women engage in is

The law (and by extension the police) treat them exploitive.380 Therefore, it is not up to the as incapacitated persons because their actions government to criminally regulate which forms are tolerated but their wishes and choices are not of consented work is morally acceptable within respected.376 Devaluing sex workers as equal our society. The late Prime Minister of Canada members of our society, extends beyond a Pierre Eliot Trudeau’s quote regarding the violation of sex workers human rights to decriminalization of homosexuality can easily be autonomy and dignity, by ultimately imposing applied to sex work in Canada whereby he stated “there's no place for the state in the bedrooms of

377 Ibid. 374 Ibid at 19.

378 Brock, supra note 42 at 17.

375 My Work Should Not Cost Me My Life, supra note 17 at 10.

379 Ibid at 16.

376 Ibid.

380 Ibid at 15.

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the nation”.381 This philosophy must apply to all

because the exception does not apply to

consenting adults engaging in sexual activities,

commercial enterprises. Finally, this paper

whether it be in exchange for payment or not.

challenged Bill C-36’s assumptions that sex

This paper argued that Bill C-36 does

work is inherently harmful, that sex workers are

not adequately address concerns for sex

always victims and that it is the role of the

workers’ safety, rather it imposes the same

government to regulate sexual relations between

dangerous restrictions on sex workers that were

consenting adults. This paper encourages the

struck down in Bedford. This legislation has

government of Canada to repeal Bill C-36 before

created an environment where more exploitation,

more sex workers are harassed, victimized,

more violence and more desperation will occur.

abused and murdered in Canada. If the

First, the criminalisation of the purchase of sex

government can save one women’s life in

will not lead to the eradication of sex work,

repealing this law, it would be worth it.

rather it will force the industry away from government and police oversight where more women will be harmed. Second, the provisions criminalising sex work commercial enterprises and the advertising of sex work are overbroad and make it impossible for sex workers to work from indoor locations. Furthermore, the government’s creation of an exception from the material benefit offence for protective services does not enhance the safety of sex workers

381 CBC Digital Archives. “Omnibus Bill: 'There's no place for the state in the bedrooms of the nation”, (December 21, 1967), online: <http://www.cbc.ca/player/Digital+Archives/Politics/Rights+and+Freedoms/ Trudeau%27s+Omnibus+Bill+of+1969/ID/1815590962/>.

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BIBLIOGRAPHY: JURISPRUDENCE Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101.

LEGISLATION: Bill C-36, Protection of Communities and Exploited Persons Act, 2d Sess, 41st Parl, 2014. Criminal Code, RSC 1985, c C-46.

OTHER MATERIALS CBC Digital Archives. “Omnibus Bill: 'There's no place for the state in the bedrooms of the nation”, (December 21, 1967), online: <http://www.cbc.ca/player/Digital+Archives/Politics/Rights+and+Freedoms/Trudeau%27s+Omnibus+Bil l+of+1969/ID/1815590962/>. GOVERNMENT DOCUMENTS: Department of Justice, Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act, (Ottawa: Department of Justice, 1 December 2014). House of Commons, Standing Committee on Justice and Human Rights, The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws (December 2006) (Chair John Maloney). Standing Senate Committee on Legal and Constitutional Affairs, Transcript (Evidence) of Proceedings, Issue 15 (September 9 2014). Standing Senate Committee on Legal and Constitutional Affairs, Transcript (Evidence) of Proceedings, Issue 19 (October 29 2014).

SECONDARY MATERIALS: Brock, Deborah, “Sexual Regulation and Sex Work” in Making Work, Making Trouble: Prostitution as a Social Problem (Toronto: University of Toronto Press, 1998) 3-24. Pivot Legal Society, Sex Workers United Against Violence & the Gender and Sexual Health Initiative, My Work Should Not Cost Me My Life, by Krusi et al. (Pivot Legal Society, Sex Workers United Against Violence, and the Gender and Sexual Health Initiative, 2014). POWER: Prostitutes of Ottawa-Gatineau Work, Educate and Resist, Brief submitted to The Standing Committee on Justice and Human Rights: The Protection of Communities and Exploited Persons Act, (2014).

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