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Yesterday, Queen's Law joined its faculty partners across the Queen's University campus in announcing a Fall 2020 semester that will be largely remote, and similar announcements are being made at colleges and universities across Canada. Where does that leave students who are now not planning on returning to their campus homes in the fall - and what are their obligations to their leases (and landlords)?

Queen's Legal Aid director Blair Crew has been helping students with lease issues for years, and shares the ins and outs of the lease and the law, covering obligations, responsibilities, and two possible 'escape hatches' for students seeking to exit leases.

Precedent, contracts, stare decisis and much more are covered in Law 201/701, Introduction to Canadian Law. It's part of the Certificate in Law program from Queen's Law - the only online certificate in law in Canada, and a unique way to learn about the law and how it applies to you in your studies, career, and life.

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Transcript: 00:00 Matt: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd, and we're gonna get right into it this week with Blair Crew, the Director of Queen's Legal Aid, talking about students and landlords, and leases, and the COVID-19 pandemic, and what students who are contemplating not returning to their institutions and their apartments in September can think about as vital components of leases and contracts in the law. It's a great conversation with Blair. If you are a Queen student and need help, I encourage you to reach out to Queen's Legal Aid, but maybe listen to this podcast first because it might answer a lot of questions you have before you get in touch with them. We're gonna pick it up with Blair right now. This podcast is produced at Queen's University, which is situated on traditional Anishinaabe and Haudenosaunee Territory. This podcast is brought to you by the Certificate in Law, Canada's only online certificate in law offered by a law school, and you can find out more at takelaw.ca.

01:00 Matt: My current understanding of the situation is, and this is pretty obvious, there's been a pandemic and a lot of students left campus early, like mid-March basically, classes were cancelled and students then started heading home. We actually circulated some pieces on social media closer to the end of March, just reminding people that even though there were certain exemptions in Ontario, a lot of things like eviction notices, they still were obliged to vacate their apartments on time. But now we're at a point where people are thinking about coming back. The University has announced that a significant portion of classes in the upcoming school year are going to be online, and I'm sure a lot of students are thinking about leases and specifically leases they may have signed for next year before they left campus, and now they're wondering if they don't come back, what happens?

01:55 Blair: Yeah, it's going to be a tough situation for students. And I'm aware, for example, that the Dean of the Faculty of Law just today sent out an email basically advising that, even if the faculty has a capacity to do some limited classes in the fall, that the students will have the option of being fully remote, if they want. So I anticipate that this is a question that's going to come up an awful lot. And, unfortunately, the law is not well designed to deal with global pandemics. There are some possible options that a student may have though, and I... One of the things that's interesting about law is that it's built on the backs of novel situations that no one's ever seen before, where lawyers and judges and litigants need to figure out what the solution is going to be to problems we've never seen before. I always think of... Law doesn't work in the world where everything goes fine, you only need lawyers and the law when there's been a problem that needs to be solved. So that's what we're dealing with here.

03:04 Matt: Right. I mean, one of the first words I learned when I took LAW 201 was the word precedent, which is that our law is based on a series of previous rulings and decisions that have been made, and I guess there's no clear precedent for this situation because thankfully pandemics don't happen all that often.

03:22 Blair: Yeah, it's true, and it hasn't even occurred to me yet to dig out the old law books from 1919 and see what sort of responses the law crafted to the Spanish influenza back then. That would be the last parallel that we've got, I don't doubt that some of these issues on a different scale came up back then. With respect to students that have signed leases, one thing that I will point out is there's two fundamental... Just basics first, really, there are two fundamental misunderstandings about the way that tenancies generally work in Ontario. The first of which is, I'm thinking of students, perhaps, that are going into third or fourth year, that are just continuing on a lease that they've already had. One of the misunderstandings there is that the students cannot be forced or required to have renewed their lease for another year. And if they did not do so, it automatically converts to a month-to-month lease that the students can get out of at any time on 60 days' notice. Now, this won't be the majority of the situations that we're thinking about, where someone has just signed a new lease. But I'm sure for a few students that were savvy that have continued on their lease, they may have now gained this right to terminate on 60 days' notice, and that would provide an escape hatch for them.

04:44 Matt: But that's really only for the students who have been in a place long enough that their first lease has basically expired, and it's transitioned to a month-to-month lease. And sometimes this can happen without people even kind of noticing that it's happened, right? They just keep paying the rent.

05:00 Blair: Yeah, it certainly can. Landlords... Because of the vast number of students in Kingston, landlords are always anxious to try and get that one year commitment. Everyone's trying to avoid that four-month gap where there are far less tenants in Kingston than at any other time. So the trick of landlords is to sometimes get students, even those returning to sign another year-to-year lease, and if they've been provided an incentive to do so, such as, "Sign for another year, and we will not increase your rent," then the courts have found those leases to be binding, notwithstanding that the student could have given 60 days' notice and had the lease automatically convert to a month-to-month.

05:45 Matt: Okay. So I feel like we've got a pretty good step one here, which is, make sure that you actually are in a lease and that you're not converted to a month-to-month situation that you might not be aware of yet.

05:57 Blair: Yes, and that certainly the step that I feel most confident about, that for those rare students that have that right, I can absolutely predict the outcome of that case. The second misunderstanding with the law that I talked about before though comes from that notion of 60 days' termination. Because you simply do not have the right to terminate a lease that you've signed for one year on 60 days, the 60 days only applies to a lease that is converted to month-to-month. So if a student has, for example, signed a new one-year lease, they're just coming out of residence, they signed a new one-year lease going from May 1st to April 30th, anticipating coming back in the fall, those students don't have the right to provide 60 days' notice and get out of that, and it could not be done without the consent of the landlord. And I suspect that few landlords are going to be concerned in to simply allow their non-returning student tenants to not show up in the fall and not pay them any rent for the course of the next 12 months.

07:00 Matt: Possibly a silly question, but does it matter when you sign that lease?

07:06 Blair: I think that in terms of one of the solutions that we're going to talk about shortly, I think that it might make a difference. If you signed the lease back in January or February, when we were just beginning to hear words like "coronavirus" and "COVID-19," then you've got a stronger argument that what happened was completely unforeseen and beyond your contemplation, so that maybe you could be excused from your lease. On the other hand, if you just signed the new lease after the emergency order went in place, I think the landlord has a much stronger basis to argue that this was something that you could have contemplated. You knew that this was one of the possibilities and took the risk of signing a new one-year lease in any event. So it may make a difference. So one of the Hail Mary passes that we're about to talk about.

08:00 Matt: Right. The 60 days thing only applies to people that aren't in a current lease and that are going month-to-month. Even if you signed your lease back in January, or even if you signed your lease yesterday, it's still a signed lease no matter when it was signed, and no matter when it takes effect, you've signed that contract, and the contract is now set in stone.

08:22 Blair: That's right. And to that aspect, it doesn't matter when you signed it. In other words, once you've signed it, you've committed yourself to honor your obligations for the next year, and if you want out at any point before the benefits of that contract were actually to start, you don't have a way out, you've committed yourself to the contractual term, even if you anticipated that you wouldn't start paying rent and receiving the benefits of the tenancy for a further four months, or whatever length of time that was.

08:52 Matt: Right. And I remember, we worked with Queen's Legal Aid a while back on some tenants' rights materials that are available on your website, are clearly not covering this issue because, as you said, COVID was barely on our radar when we worked on that project. But one of the principal elements of that project was just explaining tenants' rights to people, and that's when I learned that I thought our late February, early March launch for this was good. But a lot of Queen's students signed their leases in January or February. And I suspect that's true for a lot of universities across the country, that students are signing leases maybe five or six months out from when the lease is due to start.

09:32 Blair: Yeah, generally speaking, Kingston is a very competitive renters' market, particularly in the downtown student housing area, and as a result, there is an incentive for both landlords and tenants to get students under contract early. So landlords wanna know as early as possible whether they need to look for a new group of four, or five, or six students for the following year. And students, particularly if they've got a nicer place, wanna get in on it, so that they're not searching in the very competitive market when prices tend to go up either right before... Right at the end of April, or still, if you don't have anything in September and you're showing up, looking for it. So for those reasons, we see an awful lot of people that come in and are asking in January, or sometimes even December, about renewing their lease for the following year, and indeed, sometimes wondering what happens if I don't sign the new one-year lease that the landlord has offered. Can we just say, we always see those questions in December and January.

10:35 Matt: Right. And just to double back to a conversation we've had on this podcast earlier, and people can look this one up, it's from, I think, 2019. We talked a lot about leases and leasing, but just to touch on one point from that conversation again. Can we be a little clear about who's on the hook? If we have a bunch of roommates, it really matters who's actually signed the lease, whose signature is on that piece of paper is vitally important?

11:04 Blair: Yeah, I've always said that you wanna pick both your arrangements, but also your co-tenants very carefully. The standard arrangement that is seen most frequently, because it provides the strongest possible protection for a landlord, would be to get the group of four or six tenants to all sign one lease document together. And typically they will ask for co-signing signatures of parents of six of the students as well. Now the landlord has 12 possible individuals that they can come after for the entire amount of rent. So that if any one tenant goes, the remaining tenants are still responsible for that rent, and the landlord has their choice of going after any one of the signatories to the lease the entire amount of rent. So from the point of view with picking your co-tenants carefully, you wanna make sure that you are with reliable friends that you know who are going to stick it out through thick and thin, and that you're not going to have two of the six that are going to abandon you and stop paying rent for which you are responsible, when the going gets tough in January or February, and we're all miserable because of the cold weather outside.

12:14 Matt: I don't think we can put too fine a point on this. So just to reiterate, if five people sign a lease, A, B, C, D, and E, all of five people's names and signatures are on that lease. If A, B, and C don't pay, the landlords can still go after D and E for their share, right?

12:33 Blair: That's correct. Or the landlord could simply pick on D or pick on A, any one of them where the landlord figures that there is money to satisfy the amount that is owing. You are what we call joint and severally liable. That means, each of the tenants is responsible for the entire amount of rent, and it goes even farther than just rent. If D were to damage the property, say for example, by starting a fire or putting a hole in the wall after a party, that Kingston Finest didn't shut down, then you could go after any one of the tenants for the damage that any one of the other tenants had caused.

13:13 Matt: Just in passing, the mention of parties and Kingston's Finest, another great podcast that people can find in our archives featuring you, Blair. So if five people have cosigned a lease, they're not dividing the risk five ways. Each of them is liable for entire risk... I don't know if "risk" is the right word, but each of them is liable for the entire lease.

13:34 Blair: Absolutely. You can think of it as the risk or the responsibilities, but also the rights as well. They get an undivided interest in the whole house, and you are assuming potential responsibility for the entire amount. There is another form of tenancy arrangement that some landlords sign as well, which is more flexible for the tenants. That occurs where each of them signs their own lease. But even here, there can be some pitfalls. 'Cause there are two ways that this occurs. One of which is the landlord directly gets each of the five tenants to sign their own lease, the other signatures do not appear on the same document, the tenancies might not even last at the same time. The downside for renters of this is then it's the landlord's decision who your roommates are. But the upside for the tenant is that they are only responsible for their one-fifth share or whatever the apportionment was, as set out in the lease document. This is a form of tenancy called tenancy in common, which is used less frequently, but you still see it sometimes.

14:38 Matt: Okay. So when we were talking about this initially, we raised the subject, and I said, so what can a student do if they realize they're not coming back to Kingston and they wanna get out of a lease? And your basic take on it is, well, a contract is a contract is a contract, but there is this... It's like on the internet, there's one weird trick. And it may not work, but it's the only thing we can think of that might actually apply here.

15:07 Blair: And actually, since we first spoke, I've come up with two tricks.

15:11 Matt: Oh, two weird tricks? Excellent.

15:13 Blair: But both of them are contingent upon some decisions and actions by other people that a tenant cannot count on. So before we get to the one neat trick that you just referred to, there is something else that you can do, which is, there's a... If you will, a little quirk in Ontario tenancy law. What that quirk is, is that when a tenant has stopped paying rent and is in default, of course we want to give the landlords the right to evict the tenant, so they can get the non-paying tenant out of the premises, and then get a new tenant in there that presumably will be better at paying the rent. And Ontario law does say... It went to an appellate court in 2016, that when the landlord chooses to take the actions to start evicting those tenants, so, for example, by giving them a notice to terminate the tenancy for non-payment of rent, in that notice there will be a period specified. It's typically at least, it's gotta be at least 20 days, that the landlord... That the tenant has the right to make good on the rent, and that voids the notice.

16:24 Blair: But in that notice itself, it also gives tenants the options to vacate the premises in accordance with the notice. And the question became, what happens if the tenant leaves? Does that end the whole tenancy from the point of view of the obligation to pay rent? Or does it merely... Is it the student just giving up the right to continue to reside there, or the tenant giving up the right to reside there? And of course, the parties couldn't agree on what that meant, so it ended up going to a court case. It was decided by the small claims court, and ultimately upheld on appeal, that where a tenant vacates in accordance with that notice, within the 20-day period, it ends the obligation to pay rent and ends the tenancy. So the first Hail Mary pass that students have is that, if the landlord, perhaps is unaware of this decision, also is unaware that the Landlord and Tenant Board is not in the COVID crisis currently enforcing any evictions, if the landlord goes ahead and serves that notice to terminate a tenancy for 20 days, the student has the right to get out and end their obligations.

17:32 Matt: Right. The landlord must serve that notice.

17:36 Blair: And that's why I said that this trick depends on the actions of someone else. And to take it full circle back to our concept of four or six tenants on a lease together, that's only going to be effective if it's all four or all six, or however many tenants there are that choose to vacate together. If any one of them stays in the premises beyond the date specified in the notice, then the right to say, "Oh, we did in accordance with your instructions and we vacated, so our liability is ended," would now be gone. So again, it's a situation where you would need to coordinate very carefully with the other tenants, and as you mentioned, it's dependent on the landlord first giving you that notice.

18:17 Matt: Right. Why would the landlord give you that? I'm thinking of a lot of cases here where students just don't wanna show up. It's not a question of them vacating, like, they just aren't gonna move here in the first place, come September or come August. What would prompt a landlord to deliver that notice if the building's just sitting empty, and they're kind of passively collecting, theoretically collecting a debt they can collect on?

18:43 Blair: So it is the first day. Landlords are used to this from what you will of regular times. They rely on the notice because in a city like Kingston, they know that if they get the non-paying tenant out of there sooner, they can get a new paying tenant in on relatively short notice, and in an increasing rental market, they might even get a new tenant in that's prepared to pay even more. So instead of continuing to incur the risk that this tenant who has stopped paying will not pay you for two and then four and then six months... Students, particularly when they're first graduating, are a bad credit risk in terms of the landlords being able to ever actually collect that. So a landlord is faced with the dilemma of, "Do I incur only two months of rent that is owing to me by serving the notice to vacate the tenancy, and then needing to fill the place again on my own, or do I continue to let that liability rack up on this person. Who although I might get a judgment against him or her, will never actually be able to pay me that amount of money". That's why landlords will often go ahead and serve, it's called an N4 notice, will often serve the N4 notice to terminate a tenancy.

20:06 Matt: Okay, so that's thing one. Thing two feels a lot more of John Grisham-y, like it's like that... The scene in the movie where someone's going through old legal tomes and finds this obscure law and says, "Ah-ha, maybe this will work." Which is that?

20:21 Blair: So the second hail-Mary pass, and this one, we're now at the stage where it's most difficult for me to predict the outcome. This takes us back full circle to the fact that the law is going to have to craft novel answers for novel times. But that's the notion of frustration of contract. Basically, the doctrine of frustration says "that where the need for the benefit of any kind of contract has been removed by a completely unforeseen event". Sometimes you'll see the words "force majeure" used, sometimes you'll see the words "act of God" used, but the notion is, where a contract has become impossible to fulfill or impractical to fulfill for some completely unforeseen act of God or force majeure, that sometimes the law will step in and will relieve a party of the obligation to fulfill their side of the contract promise.

21:19 Blair: So in this case, it's a hail-Mary pass that students might be able to see say, "I signed this lease back in January anticipating that I would be in school for all of 2020-21. And then in March, with an emergency order came along, it told us we had to socially distance. Sometimes in May, all of a sudden we found out that our courses were going to be remote. I made the decision that I wouldn't return." That student may be able to argue as a defense once they're sued by a landlord that this effectively the contract was frustrated, that they couldn't gain the benefit of it, and therefore because of this unforeseen act of God that we call COVID-19, they should be relieved of the obligation to perform under the contract.

22:08 Matt: So clearly this hasn't been tested yet in courts? At least not...

22:12 Blair: No, I haven't seen any case yet where it's already gotten to the stage where in this particular pandemic somebody is looking at it. Typically when you're thinking of acts of God, it's what relieves a landlord from performance, for example, if the house burns down before the tenants ever show up. Theoretically the tenants could turn around and sue, saying, "Look, you promised to provide us a place to live, and I have incurred many more costs to find a new place at this late date." That's the kind of thing the landlord can say, "Look, there was a force majeure. Nobody anticipated it was going to happen. We should be relieved from performance." So too do students maybe have an argument here to say, "This was simply unforeseen." Now, and really what the courts are deciding when they decide this, is who should bear the liability or the risk or the lost income from an event that neither party foresaw at the time that they entered the contract, where the event was one of large significance and imposed by external forces that neither party could control.

23:18 Matt: Right. I think in tenancy law, there is a tendency to see... It's easy to find bad actors on both sides. It's not hard to go out there and find stories of terrible tenants, not hard to go out there and find stories of terrible landlords, and you tend to think of it as kind of an A versus B. But this is really... No one's the bad guy here, no one asked for a pandemic. So the courts are gonna have to decide who's left holding the ball.

23:43 Blair: Right, and it's much like people that are unfortunately losing their income right now, is that there is a loss to society and someone needs to bear that somewhere. So tenants are certainly going to say, "Why should I be required to come down to Kingston, and to fulfill and pay for a 12-month lease that I might not set foot in the house on a single day during my entire tenancy?" On the other hand, landlords can say, "We didn't anticipate this either. You signed a lease, we guaranteed the place for you. Well, why should we be the one to bear the loss of this?"

24:17 Blair: And so the courts are ultimately gonna be forced to make a societal choice on this. And again, I say this is a hail-Mary pass because it's only going to come up as a defense, almost as an excuse for, "Can you tell me why it is that you didn't pay your rent, and why it is that you felt you didn't need to perform your contractual obligations by paying the rent that you agreed to pay?" There is a slight chance that a court might see that a student just had no chance to defend against this, if you will, and excuse performance of the contract. But thereby all the courts will be doing is passing that loss onto the landlords. So it's very difficult to predict how such a case... And I'm confident that there will be several in every city in Ontario and across Canada and much of the world, is going to see decisions like this coming up as soon as the matters can be litigated, which of course cannot happen as long as the courts remain closed.

25:13 Matt: Right, and so it's kind of a parenthetical inside a parenthetical, because justice does not always move swiftly, and this is the sort of thing where I can only imagine there's gonna be... This is gonna be a huge decision, because let's loop back to the beginning of the conversation in precedent. As soon as there's a decision that the courts can turn to, it's gonna become the decision for everyone everywhere, unless the higher court decides that's not the decision that they're gonna go with. So this is...

25:43 Blair: That's correct. One of the things about frustration is that it's so fact-specific to the circumstances of the crisis, but also to the circumstances of the party. And it has occurred to me, for example, that typically frustration doesn't relieve a party where it's merely a question in delay of need for the contract. So, for example, if by next December this was all fairly nicely cleared up, and we think we could go back to something that look more like normal life, and therefore all the students were welcomed back with open arms to courses that were fully in-person again. A landlord's gonna be in a much better spot to say, "No, it's not truly frustration of contract, it's you didn't need the benefit for a short while, but you do now." So for that reason, I'm not even sure that we've got the tools yet to begin to guess how it might turn out. An awful lot of it is going to depend on what is the decision of faculties, to what extent is there going to be a mix of online and in-person courses in the fall, and most importantly, how long does this situation last for?

26:54 Matt: So this may not be a domino effect where one court decides on one case and it affect... It might be more of a city, sort of an institution to institution kind of decision process.

27:05 Blair: Yeah. And again, there's an awful lot of discretion to the judges even within the Precedential Stare Decisis System. There are some areas and this is an equitable remedy and they are far more discretionary than a judge. Where judges do have an ability to say, you know what, despite the fact that my colleague decided it this way, I'm not going to apply it this time because the facts here are a little bit different. The first student signed their lease in January, whereas the other one did so in March, and the first student was graduating in December whereas the second one needed the place in 2021 when in-person teaching resumed. So all of that to say, there is a large incentive, somebody has to bear this loss, and there is a large incentive for tenants, for students that feel that they won't be returning, to try and sit down now, and see if they can work it out with the landlord.

28:02 Blair: There is the possibility that there could be a compromise result, where, for example, both parties bear part of the loss and both walk away disgruntled, but not bearing the full amount of the loss. I'm also cognizant of what the Premier said yesterday with respect to commercial tendencies, where he referred to the commercial landlord, says "greedy landlords". And suggested to them that they better be prepared to be flexible or there could be a legislative solution to this. And students do represent a very engaged voting population that will continue to favor one party or the other for most of the rest of their lives. So it may very well be if there's too much litigation of this and too much of the student suffering that it might be that ultimately the government provides a legislative solution or perhaps even some kind of relief package to landlords or tenants something like the federal government has done for commercial leases on a federal basis.

29:02 Matt: What I'm hearing as the key takeaway here is while there are some fun ideas to kick around in terms of ways this might play out for students that don't return, and want to get out of their lease, ultimately the safest solution is to think about it, plan ahead and try to negotiate with your landlord, instead of trying to kind of wait it out and see what happens in the courts.

29:25 Blair: We know that the vast majority of legal disputes do end up resolving through settlement, and the primary feature of that is that the side know, each side knows exactly the risk that it's doing. The backlog of the courts when they do open again is going to be extensive and there's gonna be many disputes like this. So even from a student's point of view, they may be able to resist the landlord's demand for payment for a period of time, but nobody wants a lawsuit that could easily be in the tens of thousands of dollars hanging over their head for the next couple of years, and particularly where students are moving on from their time at Queens and starting their careers elsewhere. It's a bad time of life to be distracted. So there are both financial and practical upsides to trying to find some sort of solution to work it out.

30:20 Matt: Right. And I think this is as good a point to any to mention, this is not legal advice, and we are not representing anyone who's listening to this in any legal capacity. This is a conversation for entertainment purposes but it is absolutely not us offering actual legal advice to anyone who happens to be listening to this.

30:39 Blair: Yeah, I'm always concerned when I come and talk to you that somebody's going to interpret it that way. So I'm happy that you always throw out that reminder. Queen's Legal Aid is of course happy to sit down with any individual student and sort of assess what their situation is, but there is so much that is unknown here. The only thing I can say for certain is that there is risk on both sides and nobody could rely on anything that we said today is an absolute assurance of what the outcome is going to be, 'cause quite frankly I'm not sure at this stage.

31:11 Matt: Right. Well, thank you very much, Blair.

31:13 Blair: No, you're very welcome. I always enjoy it.

31:17 Matt: Thanks to Blair Crew. You can find out more about Queens Legal Aid at queenslawclinics.ca, the website of the Queen's Law Clinics in Kingston, Ontario. And you can find out more about the Certificate in Law, which sponsors this podcast at takelaw.ca. Our theme music is by Megan Hamilton. Thanks for listening.

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Note: As the COVID-19 pandemic continues, we're posting some extra content about legal issues arising from the Canadian responses. Expect sporadic (and more frequent) episodes in the coming weeks!

It's a pandemic! Even today, Prime Minister Justin Trudeau mentioned "enforcement" as a measure to encourage compliance to social distancing and other pandemic best practices. But what are a government's emergency powers? How do they get to call them into force? And what do they let a government do? We're joined by Queen's Law PhD candidate Rory Fowler, an administrative law expert and former military officer, for our longest episode ever -- a comprehensive masterclass in emergency powers in Canada.

If you're interested in power and its uses in Canada, be sure to take Law 205/705, Public & Constitutional Law, part of the Certificate in Law program from Queen's Law. It's the only online certificate in law in Canada, and a unique way to learn about the law and how it applies to you in your studies, career, and life.

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Theme music for Fundamentals by Megan Hamilton.

Transcript:

0:00:00 Matt Shepherd: We are going to start by taking a trip back in time, I guess, to 1918.

0:00:04 Rory Fowler: I'm actually gonna take you back earlier than 1918, I'm gonna take you back to 1914. Because people start thinking about the War Measures Act and the War Measures Act was enacted on the 22nd of August 1914 for obvious reasons, Guns of August, World War One commences in essentially August of 1914, and the government enacts the War Measures Act because of the great war. Because it was a war unlike any other war that Canada or any other nation had fought, or at least that was the perspective. So enact the War Measures Act.

0:00:35 MS: Okay.

0:00:36 RF: And the anticipated use of the War Measures Act was for war, riot or insurrection, and it was in response to a war that had global consequences because even in 1914, the government saw that this was going to be a war that was different than other wars. Then after the war, in fact the... What is called the Spanish flu and I'm not gonna call it Spanish flu, because lately, there's been a certain notable individual who has chosen to refer to the current pandemic in what could be constituted as racist terms. I'm gonna refer to it as the influenza pandemic, of 1918.

0:01:14 MS: Right.

0:01:14 RF: And right there, there's a bit of misinformation, because it wasn't the influenza pandemic of 1918 it was the influenza pandemic of 1918 to 1920. It lasted almost three years. And there were crests with respect to the pandemic. It didn't happen all at once. As many people have been discussing in the media recently, it came, it left and it came back in greater force.

0:01:40 MS: Okay.

0:01:41 RF: So, let's look at what that pandemic did, just to give us the context. Certainly, the infrastructure of several countries had been adversely affected by the war, that meant their medical infrastructures, their civil response infrastructures had been adversely effected. There were large masses of people from different countries, all concentrated in Europe and certain other areas and then they went home to their home countries, taking the influenza with them.

0:02:05 MS: Okay.

0:02:05 RF: So a lot of people associate the end of World War 1 or the Great War, with assisting the spread of influenza. And that was actually the first big outbreak of H1N1. We think of the bird flew, the first H1N1 pandemic was actually in 1918. So you have hundreds of thousands of soldiers going back to places like Canada and the United States. One of the difficulties that we've got in looking at the historical context of the influenza pandemic of 1918 is that, for a variety of reasons the statistics that were gathered are adversely affected by a, the capacity to convey those statistics and to gather those statistics. Propaganda machines for governments trying to either downplay or exaggerate the influenza pandemic. And as a result, the numbers of people who died as a result of the influenza pandemic range from 17 million to 100 million. But the general figure that's associated with it is often 50 million people. Let's put that in context.

0:03:09 RF: At the time, there were slightly less than 2 billion people worldwide, or at least that's what the census has told us. So, 50 million deaths out of two billion people, that's about 2.5%

0:03:22 MS: Wow.

0:03:23 RF: Yeah, that's significant.

0:03:24 MS: Yeah.

0:03:24 RF: Here's what we have to put in the context for North America, for Canada United States. So Canada, according to various statistics I've looked at, Canada had approximately 50000 deaths attributed with... Attributable to the influenza pandemic. The United States suffered 675,000 deaths, as a result of the influenza pandemic. If we look at the populations relevant... Populations in Canada and the united States at the time, so at the time, the United States had slightly more than 100 million people, 103-106 million people, 1918-1920. So 675,000 deaths is approximately 0.6% of the overall population, the United States.

0:04:02 MS: Okay.

0:04:03 RF: Canada, had a population were around or just below 8 million, in that period of time. So 50,000 deaths again, is a fatality rate less than 1%. So, whereas the world-wide fatality rate was two and a half percent. Both Canada and United States, it was less than 1%. Just put in context, because that may be relevant to some of our discussion. The War Measures Act was already invoked in 1918 because of the great war.

0:04:29 MS: Right, right.

0:04:30 RF: So there was no invocation of any emergency legislation, because of the epidemic or the pandemic, because it had already been invoked for the purposes of the war, not for the purposes of pandemic.

0:04:40 MS: And we just hadn't revoked it yet?

0:04:42 RF: That's right.

0:04:42 MS: Okay.

0:04:43 RF: On top of that, you've got a massive response. And Canada, the United States, one thing, and I'm not a scientist, one thing that could have contributed to the fact that Canada, the United States, had a far lower fatality rate is because Canada, United States, if anything, our infrastructure had been aided by the war, because we cranked out in a total war context. We... Our industry had been oriented towards the war, the industries in Canada, United States had to a large measure, been nationalized if you will. The entire effort of the nation was toward war, particularly in Canada. And our infrastructure was not adversely affected by the war, to the same extent that France, Germany and European nations had been adversely affected. You look at the photos of World War 1 and the physical infrastructure had been adversely effected.

0:05:33 MS: Well, no one was blowing us up.

0:05:35 RF: That's right.

0:05:35 MS: Yeah.

0:05:35 RF: Well, no one was blowing up our country...

0:05:37 MS: Right, no one was blowing up Canada.

0:05:40 RF: That's right. So that puts things in context. So you've got a pandemic, a global pandemic, hence the term, "Pandemic", that is affecting a variety of countries for a variety of reasons, science was not as advanced then, as it is now, social media was not as advanced, so probably less panic, but equally there were challenges that the government faced. The government had already for four years at that point in Canada, had already been oriented toward total effort toward a particular objective. So they were able to shift gears and deal with the pandemic. I would be hesitant to suggest that that's the principal contributing factor to why the fatality rate in Canada and the United States was lower. But that certainly contributed to Canada's response.

0:06:32 MS: So you're saying that because we were coming from a place of total focus, it was easier for us to move to a place of equally total but different focus?

0:06:39 RF: That's one of the contributing factors, as well as the fact that our infrastructure had not been as adversely affected by the war as, for example, European nations, Northern African nations, areas in the Middle East. Plus Canada and the United States were technologically advanced then, we're technologically advanced now compared to many other places.

0:06:58 MS: Fair enough.

0:07:00 RF: But that is significant, because part of a government's response to an emergency is to place certain industries, certain factors, at government control. And we'll talk about that a little bit later when we talk about the Emergencies Act. So that's a good comparator historically, because it involves the use of emergency legislation, if you will, the War Measures Act was already in place. And it involves a pandemic that is not all that dissimilar from what we're facing now. There's a... We're talking about a flu-like virus, and we're talking about a pandemic, and we're talking about instead of returning soldiers bringing it back to Canada, we're talking about returning travellers bringing it back to Canada. And other reasons as well.

0:07:48 MS: So we've got the War Measures Act. What other legislation is there that deals with emergencies?

0:07:54 RF: So we no longer have the War Measures Act. The War Measures Act was replaced, and people always think of the War Measures Act. So the next time the War Measures Act was used was, obviously, World War II. And that's going to be relevant for some of our discussion down the road when we talk about the Charter, because one of the things done under the War Measures Act, for example, in World War II, was the segregation and eventually internment of, for example, Japanese Canadians or people of Japanese race, to use the terms that they used at the time. And that was a subject of review. And remember, there was no Canadian Charter of Rights and Freedoms at the time. There was no, even, Bill of Rights, which came in in 1960, but only on the federal level. There was only the War Measures Act. The War Measures Act was invoked, obviously, for World War II. Interestingly it was not invoked for Korea. It was not invoked any other time for war, and only the third time was invoked was the October crisis of 1970. And arguably that was for an insurrection as opposed to a war. So there were only three times that the War Measures Act was invoked, and two of those times were war. Under the War Measures Act in World War II, there were actions taken to restrict the liberty, significantly restrict the liberty, to the point of deportation of people of Japanese race, including people of Japanese race who were Canadian citizens or British citizens.

0:09:15 RF: And that was later the subject of a reference to the Supreme Court of Canada, which was subsequently heard by the Judicial Committee of the Privy Council, which was at the time, the highest court of appeal. And the Judicial Committee of the Privy Council upheld the decisions of... Or the judgments of the majority of the Supreme Court of Canada. But we'll get to that in a second. So what we've got now, by way of legislation is on the federal level, the Emergencies Act. And the Emergencies Act was introduced in 1988 and it can be viewed as being the successor to the War Measures Act. People think War Measures Act, and even nowadays when people talk about the governments reaction to an emergency, someone will pipe off about the War Measures Act, and it's like, "There's no such thing as the War Measures Act any more." It was essentially replaced by the Emergencies Act. That's at the federal level. But we have to remember, Canada is a federal constitutional state. They have more than one level of government. We've also got a provincial level of government, and at the provincial level, we've got the Emergency Management and Civil Protection Act under Ontario legislation. I'm an Ontario lawyer, I'm gonna talk about Ontario legislation. And up until June of 2006, that was called the Emergency Management Act, and in June... At the end of June 2006, it was amended to be called the Emergency Management and Civil Protection Act.

0:10:30 RF: The reason I mention that is, unlike the Emergencies Act, which has not yet been invoked, the Premier of Ontario has essentially invoked the Emergency Management and Civil Protection Act. And that's because we know, that in addition to the legislation I've just mentioned, under the Constitution Act 1867, which used to be the British North America Act until we patriated our constitution. Under the Constitution Act, 1867, there's a division of powers between the federal government and the provincial government. Section 91 of the Constitution Act, 1867 deals with the federal government. Section 92 deals with the powers of the provincial government. Section 91 also indicates that any residual powers, what we call residual powers: Peace, order, and good government. Any residual powers that are not expressly assigned to the provincial government fall to the federal government. So that means there are certain things that fall within the provincial realm and certain things that fall within the federal realm. And that's why we have an Emergencies Act at the federal level and an Emergency Management and Civil Protection Act at the provincial level.

0:11:33 MS: So how much of this ties into the fact that healthcare is generally something that's assigned to the provinces?

0:11:39 RF: Well, that's an important question, because it's not generally assigned to the provinces. So the Constitution Act... So if we turn to the Constitution Act, subsection 92, sub 7 expressly places the control of hospitals within provincial control. But that's not the only thing. And I know that's the first thing comes to mind, because we're talking about a medical pandemic. But consider the following. Subsection 8 of... So these were all under Section 92 which deals with provincial powers. Subsection 8 deals with municipal institutions. Can you think of any municipal institutions that might be affected? Just about all municipal institutions are currently being affected, because they're having to restrict the number of people that are actually providing those municipal services as a preventative measure. Civil rights under subsection 13, under the province. The administration of justice and the courts under subsection 14. Any local matters under subsection 60. So there's a great deal that falls under municipal control. In fact, our day-to-day lives are regulated far more by the province than they are by the federal government.

0:12:41 MS: So if we're comparing Emergency Acts, is the provincial Preparedness Act much more kind of relevant to us even than the federal one?

0:12:50 RF: Well, it's relevant, I'd suggest in a couple of ways. First off, the premier has declared an emergency. So what he's essentially done is he has triggered under... And if you give me a second, I'll give you the specific provision.

0:13:04 MS: So, you came in with a game plan and now we're jumping around.

0:13:06 RF: That's okay. As... Well, two quotes come to mind, right? One from my military background, which is "No plan ever survives contact with the enemy." Not that you're the enemy, but no plan ever survives contact with the enemy. My more favorite quote is probably from Mike Tyson. "Everybody has a plan until they get punched in the face." Which...

0:13:28 MS: Not that I'm thrilled about my part in these analogies, but yeah, we'll roll with that.

0:13:34 RF: It's a great quote. So under Section 7 of the Emergency Management Civil Protection Act, essentially, the Premier has invoked that legislation.

0:13:44 MS: Right, okay.

0:13:45 RF: And we have to remember that... And we'll get to this in a second, but the reason we've got emergency legislation is ultimately to grant the executive additional powers. Okay? So, Canada has three branches of government, most people are aware of that. Anyone who's done civil studies in high school will be aware that there's an executive, there's a legislature, and both at the provincial and federal level, and there's the courts. Those are the three branches of governments generally speaking. They will also be aware that in Canada because we are a constitutional parliamentary democracy, and that's both federally and provincially, that there's a bit of overlap between the executive and the legislature, right? Those who command the confidence of the legislature will form the executive.

0:14:32 RF: So, the Premier is both the head of government. Technically speaking, is the head of government provincially, and the Prime Minister is the head of government, he's not the head of state. Her Majesty, The Queen, is the head of state, represented at the federal level by the Governor General, represented at the provincial level by the lieutenant governors. But essentially, she takes the advice of her cabinet. So essentially, you've got the Premier, the Prime Minister, at the provincial and federal level that head both the legislature and the executive, but they have different powers.

0:15:00 MS: Right.

0:15:00 RF: And we also have to remember that because in a parliamentary democracy, because under the Constitution Act of 1867, Canada has a government much like the United Kingdom, although theirs until recently was a unitary state, meaning they only had federal levels, they didn't have provincial levels. There's been devolution, we won't get into that, that's very complex for our discussion. But essentially, we have a constitution much like that of the United Kingdom in terms of the distribution of powers.

0:15:29 RF: So, our executive is actually quite powerful. You compare that the United States where the executive is elected completely separate from the legislature. Their head of state is the President, their head of government is the Speaker of the House. And so the legislature, and particularly now where the legislature, particularly the House Representatives, is commanded by the Democrats and they've got a Republican president, if you can call him a president. Sorry, I got a little bit political there. [chuckle]

0:15:57 MS: So, we're moving around a bit.

0:15:58 RF: We're moving around.

0:16:00 MS: But have we kind of batted the circuit on legislation? There's the federal Emergencies Act, and then there's the Provincial... I don't remember the full name, but essentially, a provincial Emergencies Act.

0:16:07 RF: That's right.

0:16:08 MS: Is there any other sort of legislation extant that deals with these kinds of situations?

0:16:14 RF: Well, we have to remember those are very specific pieces of legislation that deal very specifically with emergencies, but they're not the only thing that apply to emergencies. So I've already mentioned other legislation that's relevant to emergencies.

0:16:24 MS: Yup.

0:16:25 RF: Starting with the Constitution Act.

0:16:27 MS: Right.

0:16:27 RF: So, the Constitution Act of 1867 divides powers. The Constitution Act of 1982 provides us the charter. Both of those as I've already mentioned are going to be relevant during any emergency, whether or not emergency legislation like the Emergencies Act is invoked. Because the charter is always going to be relevant to be relevant to the exercise of power by the legislature and by the executive, and the division of powers under the Constitution Act of 1867 will always be relevant.

0:16:53 MS: But it's really just those two pieces of legislation at the federal and provincial level that's kind of grant extraordinary powers in the event of...

0:17:01 RF: Those are the ones that are specifically designed to grant extraordinary powers to the executive.

0:17:05 MS: Right.

0:17:06 RF: Supervised by the legislatures at each level for the purposes of responding to an emergency, but those aren't the only pieces of legislation relevant to an emergency.

0:17:15 MS: Fair enough, okay.

0:17:16 RF: And one in particular that I'm gonna mention because we will talk about it down the road, is the National Defense Act. Now, I'm not mentioning that solely because I've been a soldier for 28 years and I've been a legal officer and I'm familiar with it, but because when people think of emergencies, one of the first things that you think of is the charter, one of the first things they think of is the War Measures Act, now the Emergencies Act, but they also automatically think of, "Well, what about the Canadian Forces?"

0:17:38 MS: Right.

0:17:38 RF: Right? Can you think of any times in the past, say, 20 years, where the Canadian forces has deployed internal to Canada? So domestically, in response to emergencies?

0:17:51 MS: Other than the October crisis which pre-dates that, I cannot.

0:17:57 RF: So, we know that the Emergencies Act has been around for slightly more than 30 years. You can't think of any other time the Canadian forces is deployed in the last 20, 30 years in response to emergencies?

0:18:06 MS: Within Canada?

0:18:07 RF: Within Canada.

0:18:08 MS: Not specifically. I can think of... There are definitely times I can think of. There was flooding in Quebec...

0:18:14 MS: There was flooding in Quebec...

0:18:16 MS: And the forces helped. I guess, I got in my head kind of a distinction between deployment and helping out, which is probably a false division. I can't think of them being militarily deployed in Canada.

0:18:29 RF: Well, and that's an interesting point because you're drawing a distinction. Most Canadians, I suggest would not. So think back to the late 1990s, in 1998. The Red River floods in Winnipeg.

0:18:39 MS: Right.

0:18:40 RF: Right? We deployed... The Canadian forces deployed two brigades. And essentially, two brigades worth of troops and the divisional headquarters to combat the floods, to assist in combating the floods.

0:18:53 MS: Right.

0:18:53 RF: Right? We had in Southern Manitoba, we had deployed probably in the vicinity... I can't remember the exact figure, but we had deployed in the vicinity of 4000, 4500 troops.

0:19:07 MS: Okay.

0:19:08 RF: At least.

0:19:09 MS: And that is a great thing to do when there is a physical thing happening that you can solve using physical means.

0:19:17 RF: Yup.

0:19:18 MS: But a virus isn't really something you can use the military against.

0:19:23 RF: And that's an interesting point, we'll get to that down the road. But would you consider the Red River floods to have been an emergency?

0:19:30 MS: Yeah, absolutely, yes.

0:19:31 RF: What about the ice storm of the late 90s?

0:19:33 MS: Yup, I was there, I was in Sherbrooke in '98 and... Yup, no, definitely an emergency.

0:19:38 RF: Right, and the Canadian forces were also deployed. In fact, more soldiers were deployed in response to the ice storm than were deployed in response to the Red River floods.

0:19:44 MS: Right.

0:19:46 RF: And I was on both of those deployments. And we've also very recently in the Saguenay floods and just this year, deployed soldiers, and that's the term that the Canadian Forces use, "Deploy soldiers."

0:19:57 MS: Okay.

0:19:58 RF: But we already know that the Emergencies Act has never been used by the Federal Government. It's never been invoked. So that wasn't by virtue of the Emergencies Act, that was by virtue of a specific provision under the National Defense Act.

0:20:10 MS: So, and just to round that out, you were saying the federal government's never invoked the Emergencies Act. You mentioned earlier that the Premier has kind of invoked...

0:20:18 RF: No not kind of...

0:20:19 MS: He is absolutely...

0:20:21 RF: By declaring an emergency, that is necessary under Section 7 of the Emergency Management Civil Protection Act.

0:20:26 MS: So chapter inverse, we can say he absolutely has invoked it at this point?

0:20:30 RF: That's right.

0:20:31 MS: Okay.

0:20:31 RF: So all of these other emergencies where the Canadian Forces come out. What about Oka? That was one. And that's distinction. That's a distinct deployment from, say the Red River floods and the ice storm and the Saguenay floods.

0:20:48 MS: Right.

0:20:48 RF: Right? An entire brigade of the Canadian forces was deployed and the troops were deployed with weapons.

0:20:56 MS: And that definitely crosses my mental line into... Yeah, that's a militaristic one that I hadn't thought about.

0:21:00 RF: Right? And that was a domestic deployment.

0:21:01 MS: Right.

0:21:01 RF: Not under the Emergencies Act.

0:21:03 MS: Okay.

0:21:04 RF: So what we've got is a distinction between public service, which the Canadian forces can perform by virtue of Section 273.6 of the National Defense Act. And aid of the civil power, which is covered under Sections 274 to 285, National Defense Act, not to be confused, two very distinct circumstances.

0:21:23 MS: Right.

0:21:24 RF: So under Section 273.6 of the National Defense Act, the Public Safety Minister can request the Minister of National Defense to provide Canadian forces in assistance for aid to the civil power.

0:21:37 MS: Okay.

0:21:39 RF: Equally, attorneys general or solicitors general of provinces can make the request through the federal government.

0:21:45 MS: Right.

0:21:45 RF: Equally, but distinctly, provinces or even the federal government, can request from the Minister of National Defense that the Canadian forces perform a public service under Section 273.6 of the National Defense Act. Public service is not aid to civil power, aid to the civil power. Aid to civil power is when the troops come out like Oka. When they're armed, when they're assisting with... And the October crisis would be another example of aid to the civil power, but it was done under the War Measures Act. Canadian forces is often called upon to provide public service.

0:22:20 MS: Right.

0:22:20 RF: Where... And if you look at, for instance, and I'll use the floods in... The Red River floods in the late 90s as an example, because it was a highly successful operation and it's because there were certain skill sets of the Canadian Forces bring the bear. People made jokes about when the mayor, the former mayor of Toronto called out the troops because of the snow storm.

0:22:42 MS: Right.

0:22:43 RF: The Canadian forces is not there to perform public service that can be performed by a municipal or provincial institutions.

0:22:49 MS: Yeah.

0:22:50 RF: That's a waste of time, it's a waste of effort and that's a waste of a fairly limited resource. But there are certain skill sets that the Canadian forces have and certain equipment that the Canadian Forces have, that assists with a public service. One of the big things that the Canadian Forces brings to bear is planning. We train our officers, predominantly officers, but not just officers in planning, we do a lot of training in planning. And so, during the Red River floods, one of the main purposes of deploying the first Canadian division headquarters, was to plan for the eventual evacuation of Winnipeg, we came to that. That's one of the main efforts that they put into it. And having seen how municipal organizations and provincial organizations do their planning, it's not a bad thing that they bring out headquarters from the Canadian Forces to assist with planning, in fact, a great many of my former colleagues who have also retired from the Canadian Forces, who were senior officers, have gone into emergency preparedness or other jobs, because they possess those skills for planning. Okay.

0:23:47 RF: Equally, large number of troops, who can work in a concerted manner, who can work in an organized fashion, who have access to vehicles that assist them in doing that, made the response to the Canadian Forces to the floods, a very successful operation. So that's one of the reasons why a provincial government or municipal government through their provincial government, might turn to the Canadian Forces for public service. But those are examples of the response to an emergency, often a localized emergency, under legislation, other than what would be characterized as emergency legislation.

0:24:22 MS: Okay.

0:24:25 RF: So, we've talked a little bit about relevant legislation. And so there's a higher review of legislation. Obviously constitutional legislation is involved, so the Constitution acts 1867-1982, including the Charter. The Federal and provincial legislation, Emergencies Act, the Emergency Management and Civil Protection Act, and even federal legislation like the National Defense Act can come into play when you're dealing with an emergency. But then we have to ask ourselves, what constitutes an emergency? So we can look at the normative definition of an emergency. So, a normative definition is a serious unexpected and or dangerous situation requiring immediate action.

0:25:07 MS: Right.

0:25:07 RF: When we think emergency, that's generally what we're gonna be thinking about.

0:25:11 MS: Okay, yeah.

0:25:12 RF: But of course legislation will have its own definitions, will have its own provisions. So let's look, because most people think of the Emergencies Act, although as I've already said, provincial legislation is at least as important and quite frankly, is more likely to be invoked than the federal legislation, and I would also suggest that legislation will be invoked, when it needs to be invoked. Because as we already know, the federal government, the executive branch of the federal government, already has significant powers under existing legislation. They don't need to invoke the Emergencies Act to do a variety of things that they've already done. For example, one of the things that they've done to relieve pressure on people is they've indicated that they will delay the deadline for submission of income tax returns to use button example. They have delayed that by essentially an additional three months. And they've done so, arguably, directly because of the COVID-19 crisis.

0:26:10 MS: Yup.

0:26:11 RF: They didn't need to invoke the Emergencies Act to do that. They've got the power to do that themselves.

0:26:15 MS: So what is the Emergencies Act for, then? What does it let them do that they don't already have access to?

0:26:22 RF: Well, there's four types of emergencies that are expressly identified under the Emergencies Act. And in a lot of ways, the Emergencies Act represents an evolution from the War Measures Act, right. The War Measures Act in 1914, was conceptualized as legislation allowing the government to deal with total war.

0:26:41 MS: Right.

0:26:42 RF: A lot of people criticized Trudeau, Sr. In invoking the War Measures Act in the October crisis because it wasn't really designed for that, although, there's arguments that it was designed for not just war but war, riot and insurrection. And it was a crisis in 1970, but it was not particularly agile legislation with respect to responding to the types of emergencies that we could anticipate in a modern sense. And so, the Emergencies Act represents an evolution in emergency legislation and it identifies... It's got six sections, obviously for six parts. Part 1 deals with sort of introductory clauses including definitional clauses, but it identifies four types of emergency and each one has its own part. So, under Part 2, it deals with Public Welfare emergencies. And we'll be getting back to that, because that's what we're dealing with, with COVID-19, I would suggest.

0:27:37 MS: Yup.

0:27:37 RF: Part 3 deals with public order emergencies.

0:27:40 MS: Okay.

0:27:40 RF: One, if we're looking historically, the public order emergency could be characterized... The October crisis would have been a public order of emergency, if that legislation had existed. Oka could have been characterized as a public order emergency. Part 4 deals with international emergencies. Not war, because Part 5 deals with a war emergency.

0:28:00 MS: Okay.

0:28:00 RF: Okay, so an international emergency and arguably COVID-19 is also an international emergency. Equally, the global war on terrorism could have been characterized as an international emergency, but remember, the Emergencies Act was not invoked for the global war on terrorism or the global war on terror.

0:28:20 MS: Well, none of this.

0:28:21 RF: None of this was invoked. This has never been invoked.

0:28:23 MS: Right.

0:28:24 RF: So right now, and I would suggest the main reason the Prime Minister has responded saying that well, they're looking at whether or not they need to invoke the Emergencies Act is because A, they anticipate the people are gonna ask about it and people have been asking about it. The minute this happened, people start asking about, "Well, you gonna invoke the Emergencies Act?" So if we look at the structure of the Emergencies Act 'cause it's a useful point of discussion, there are significant similarities between each of those four parts. So, parts two, three, four and five. They all have the same structure. They all have provisions dealing with interpretation. Provisions dealing with the declaration. Provisions dealing with the orders and regulations that may be made under that part. Provisions dealing with the revocation, continuation and amendment of the declaration. The need for consultation both provincially and with parliament or with their legislatures and the expiration and revocation of the declaration. So they all mirror each other with very nuanced differences.

0:29:24 RF: And if we look at the legislation... So, I've already mentioned that if the Emergencies Act were invoked by the federal government, by the Prime Minister, by the executive at the federal level, it would more than likely be under Part 2 as a public welfare emergency. I would be extremely surprised if they invoked it under any of the other parts. So if we look under Section 8, for example, of the Emergencies Act. Section 8 deals with the various additional powers that are granted to the executive. If a declaration of a public welfare emergency is in vote. So, for example it permits the executive to regulate or prohibit certain types of travel.

0:30:05 MS: Okay.

0:30:06 RF: It empowers the executive to essentially compel evacuation from certain areas. And remember, I've already mentioned that there is other legislation that's relevant, including the Constitution Act of 1867. In a lot of these cases there's going to be potential either conflict or overlap between the exercise of federal powers and the exercise of provincial powers, which is one of the reasons why each of those parts of the emergency at each type of emergency requires consultation between... And the way it's characterized, between the Governor and Council, which is the executive at the federal level, and the left tenet Governor in council, which is the executive at the provincial level. What it's really saying is the federal executive, if it's going to do certain things under the Emergencies Act that are going to overlap or impinge upon the exercise of the authority by provincial legislation or provincial executive, they need to consult with them. And frankly they're doing that now.

0:31:01 MS: In theory. They're gonna overlap, right? What you're describing doesn't sound like there's any chance it wouldn't overlap.

0:31:07 RF: Absolutely. And this is common in Constitutional Law. There's always going to be overlap, and that's one of the reasons why it's important to remember that at the end of the day, the residual power, particularly peace, order and good government falls to the federal legislation. At the end of the day, the protection of the health of the state of Canada falls to the federal government, but the Emergencies Act, which we have to remember any legislation passed by the federal government has to be consistent with both the Constitution Act 1867 and the Constitution Act 1982. Broadly speaking, what most people are gonna focus on in terms of the Constitution Act 1867, it has to be consistent with the division of powers.

0:31:45 MS: Right.

0:31:45 RF: In other words, the federal legislature, Parliament, can only enact legislation within its scope of authority, pardon me, scope of authority under the Constitution Act 1867. Additionally, any legislation that passes has to be consistent with the charter under the Constitution Act 1982.

0:32:01 MS: Right.

0:32:03 RF: So we look at Section 8 of the Emergencies Act, and we see that the federal government or the federal executive upon invocation, of an emergency can regulate or prohibit travel. It can compel evacuation. It can regulate the distribution of goods, which is vital in a pandemic. It can make emergency payments. It's not always bad. So the invocation of emergency legislation is not always about doing things and inhibit people's liberty, inhibit people's freedom that can be viewed as being an infringement of our rights. It also empowers the executive to make emergency payments.

0:32:38 MS: What's a payment?

0:32:39 RF: So it's very broad legislation. But for example, if they're going to regulate the distribution of goods, it also empowers them to ensure that there's proper compensation for anyone adversely affected by the compulsory distribution of goods.

0:32:53 MS: Okay.

0:32:53 RF: It can make emergency payments to organizations, to people, to provincial governments to assist with the response to the pandemic.

0:33:01 MS: Right.

0:33:03 RF: It gives them emergency powers to create shelter. Now a lot of these things can already be done by the executive right? Both at the federal level and the provincial level. They can create shelters. They can make payments anyway. But in addition to the existing powers that are granted to the federal executive, what the Emergencies Act also does under Section 8 is it uses punishment to enforce compliance. Right? So for example, right now the federal government has said, "We're gonna limit... We're gonna limit cross-border travel." They don't need the Emergencies Act to do that, because they also have the Canadian Border Services to do that. But if Section 8 is applied, if the Emergencies Act is invoked at the federal level, all of these powers and all of these prohibitions that can be placed by the government under Section 8, because we're dealing with a public welfare emergency or potential public welfare emergency, what it also does is it allows them to use coercive powers, right? Punishment either by prosecution, for a summary offense of prosecution, by indictment for contravention of those. So right now, a lot of the restrictions that are being put in place are either permissive or are recommendations.

0:34:24 MS: Right.

0:34:24 RF: Right? So the Emergencies Act is a hammer at the end of the day. But it's a hammer that also has certain aspects of benevolence. But it is not necessarily legislation that must be invoked for the governments to do their job. And that's why I'd suggest that it's... That's why within this context, the provincial government has seemingly invoked the Emergency Management and Civil Protection Act because a lot of what is being done right now is... Are measures that fall within the provincial scope of authority. For the federal government to get involved, they're gonna be focused on the welfare of the nation as a whole. And in fact it would be problematic, for the federal government to focus on individual provinces. That's why there are provincial executives, that's why there are provincial legislatures. So what the federal government must look at is What do we need to do to protect the life of the nation as a whole? What do we need to do to support the provincial governments in providing their services, right? Because if we look at healthcare, we have to remember that healthcare by virtue of the Constitution Act 1867, some section 92 sub 7 places the control or the management of hospitals and medical administration in the province's hands.

0:35:46 MS: Right.

0:35:46 RF: Right? But there is federal legislation that deals with health care, Canada Health Act. That's about money. Canada Health Act is all about the money.

0:35:54 MS: Does anything in the Federal Emergencies Act allowed them to claw some powers back from the provinces?

0:36:00 RF: No. Because it's ordinary legislation, right?

0:36:01 MS: Right.

0:36:01 RF: So the powers of the provinces are vested in the Constitution Act 1867, the supreme law of Canada.

0:36:08 MS: Right.

0:36:08 RF: Right? So with or without the emergencies Act, the federal government and the federal executive could never infringe on the authority of the provinces. Right?

0:36:20 MS: So hospitals...

0:36:21 RF: They couldn't pass legislation that would permit them to do that because it would be contrary with the Constitution Act 1867.

0:36:26 MS: So in Ontario, regardless of what the federal government does within Emergencies Act, the administration of healthcare is gonna remain Ontario's responsibility.

0:36:33 RF: That's right.

0:36:33 MS: As a for instance.

0:36:34 RF: That's right.

0:36:34 MS: So essentially, the Emergencies Act kinda gives the Federal Government the ability to super power its existing powers, but it doesn't actually take anything away from the provinces except when they overlap, and even then the federal government has to consult with the provinces first.

0:36:50 RF: Yeah, the best way to look at emergency legislation, not just at the federal level but federal and provincial level is that legislation... Remember legislation or enactment of statutes falls to the legislatures. Whether it's parliament at the federal level or the provincial legislatures, right? The sovereign entity that enacts laws in Canada is the legislative branch of government.

0:37:14 MS: Right.

0:37:14 RF: The executive is often empowered by legislation, to make regulations or to regulate, but they don't... The executive whether it's at the federal or provincial level, does not make laws. Right they make subordinate laws, regulations, orders in council. But they don't make statutes. Statutes are enacted by the legislatures. So the best way to look at emergency legislation is it grants powers to the executive, it is an enactment by the legislature, whether it's federal or provincial that grants powers to the executive that the executive would not otherwise have. It's about transferring a degree of power to the executive that would normally fall to the legislature, to exercise by enactment and that's why it's important to remember that, and again, using the Emergencies Act as an example, there are certain provisions that are vital within that legislation to remind us that at the end of the day the ultimate sovereign power... Now the ultimate sovereign power people would argue is the people, but through representative democracy, the legislatures.

0:38:21 MS: Right.

0:38:22 RF: So this Part 6 of the Emergencies Act. So we talked about Part 1 was the introduction, parts two, three, four and five deal with the four types of emergencies that we've discussed. Part 6 deals with parliamentary supervision of an emergency. And that's important because under the legislation, the executive, it's not a carte blanche for the executive. At the end of the day, the executive or the governor and council, can invoke the Emergencies Act by declaring an emergency, but at the end of the day, Part 6 deals with parliamentary supervision.

0:39:00 MS: It's worth pointing out, you've got a copy of this in your hands, right now.

0:39:02 RF: I do.

0:39:03 MS: And it's always worth mentioning that this stuff is not a mystery. Anyone can find and download and read these documents.

0:39:09 RF: The beauty of legislation both federally and in Ontario is it's publicly available on the internet. And God knows everyone's stuck at home on the internet, watching YouTube videos of Jimmy Fallon and Jimmy Kimmel, in between those of watching Jimmy Fallon awkwardly deal with his children on a YouTube video, people can check out Provincial and Federal Legislation Online and it's worthwhile them checking it out and there's a lot of news releases to deal with it.

0:39:34 MS: As I'm fond of saying it's surprisingly readable stuff. It's not impenetrable gobbledygook, it's actually pretty comprehensible, if you wanna just sit down and spend some time with it.

0:39:45 RF: And it's worthwhile, because people will... People'll go to Reddit, or they'll go to other areas and try and get information; it's far more valuable to go to the source. So if you wanna know what the Emergencies Act says, go to the Department of Justice Laws website, which is quite easily navigated on the Internet, provided you've got an Internet connection, and take a look at what the Emergencies Act says.

0:40:11 MS: So you've now got Part 6, I'm assuming.

0:40:14 RF: Well, I've got the entire act printed off before me, but what I want to do is take a look at Part 6, which deals... It's actually entitled, "Parliamentary Supervision." And one of the first provisions that you find within Part 6 is section 58, which deals with the consideration of declaration of an emergency by Parliament. And it's worthwhile reading out certain provisions, because I'll take a look at subsection 58 sub 1 which says, "Subject to subsection 4, a motion for confirmation of a declaration of emergency signed by a minister of the Crown together with an explanation of the reasons for issuing the declaration and a report on any consultation with the lieutenant governors in council of the provinces with respect to the declaration shall be laid before each House of Parliament within seven sitting days after the declaration is issued." "Shall," that's an obligation placed upon the executive.

0:41:09 RF: So remember, under each of those parts that deal with an emergency, so Part 2 that deals with a Public Welfare Emergency, as I mentioned previously, there's a provision under there that deals with compulsory consultation between the federal executive, represented by the Governor in Council and the lieutenant governors in council. And what we're talking about, if this were invoked, if a public emergency because of COVID-19 were invoked at the federal level, that is consultation with all of the executives, all of the lieutenant governors in council of all of the provinces.

0:41:42 MS: And you got a week.

0:41:43 RF: And you got a week.

0:41:44 MS: Is... What's that say? .

0:41:44 RF: And... But you've got a week after the declaration is invoked for that consultation, for that motion, to be placed before the Houses of Parliament; we've got the Senate, and the House of Commons, so there's two Houses of Parliament. But that doesn't mean there isn't consultation going on right now, in fact, the consultation that is anticipated within the legislation is consultation in advance of the declaration, and we can bet that for the past week or two, at the very least, there's been consultation between the federal executive and all of the provincial executives. They'd be fools not to, quite frankly, but even without the legislation... But that's what's anticipated within the consultation.

0:42:23 MS: Just for the sake of completeness, when we say, "provincial," we mean provincial and territorial, correct?

0:42:29 RF: We do, but we have to remember that the territorial governments are a little bit different than the provinces. They're not exercising section 92 powers, because they're not provinces.

0:42:42 MS: Oh, I did not know that.

0:42:44 RF: So it would probably be a bit of a tangent, one tangent too many. But the territories ultimately fall under federal legislation, ultimately.

0:42:55 MS: Okay, I've learned something... I've learned many other things today, that is one thing among them.

0:43:00 RF: So subsection 2 of section 58 says, "If a declaration of emergency is issued during a prorogation of Parliament or when either House of Parliament stands adjourned, Parliament or that House, as the case may be, shall be summoned forthwith to sit within seven days after the declaration is issued." And the... Probably one of the questions you'll ask me is, "Does that mean everybody?" No, not necessarily. Here's what... And in preparation of this, here's one of the things that I learned that I was not acutely aware of; to have quorum in the House, you only need 20 sitting MPs.

0:43:36 MS: That's not very many MPs.

0:43:37 RF: That's not many at all. But we have to remember we've got a minority government.

0:43:40 MS: 20?

0:43:42 RF: 20.

0:43:43 MS: 20?

0:43:43 RF: 20.

0:43:43 MS: Do they have to have representation from across the country in a certain way or...

0:43:49 RF: That's not something I feel qualified to comment on, but...

0:43:51 MS: Bang out the GTA members and call it a day. Wow. Okay.

0:43:55 RF: But we have to remember we're dealing with a minority government, and we're dealing with a government that's gonna be sensitive to the need to consult broadly.

0:44:03 MS: Yeah, absolutely. Yeah.

0:44:04 RF: So I would anticipate that if Parliament were convened, that the executive would make sure that they had representation across the country, from across the country, and from across the pro... The political spectrum.

0:44:17 MS: From a re-electability standpoint, you wanna be the guy that's not there? I mean...

0:44:22 RF: Or do you wanna be the guy that tries to sneak it by?

0:44:25 MS: Yeah, no.

0:44:25 RF: No. Because, let's face it, from a political perspective, the current government is being judged by the Canadian people on how they handle this. So section 58 deals with the summoning of Parliament and placing the motion before Parliament. Because at the end of the day, under the Emergencies Act, Parliament in its supervisory role can revoke the declaration. So the declaration can be made by the executive, but Parliament does have the power to revoke it. Remembering that if we were dealing with a majority government... So think back to a majority government, saying that Parliament can supervise the executive is a bit like saying within a household, when the parents are telling the kids how it's time for bed, that's like saying the mother supervises the father. If you've got an executive that commands the majority of the House, the majority of the House is probably going to do what the executive wants to do. That's not what we're dealing with right now, but we're also dealing with a Parliament that I suspect would understand the importance of dealing with an emergency. But certainly, the difference for this Prime Minister Trudeau compared to his father is he's not commanding a majority of the House at a time when he's contemplating using the Emergencies Act.

0:45:51 RF: And so at the end of the day, Parliament can be... Or the House of Commons can be reconvened, but it's up to the individual party caucuses to determine whether or not they're going to be present. You can't have a prime minister who engineers a circumstance where the majority of those MPs that are in the house are from his party, because he doesn't control the caucus of another party.

0:46:21 RF: So what we've got here is... And one of the things that the executive is going to consider is, if we do invoke this, first, we have to consult with the provinces, we have to have a plan. And we have to have consulted with the provinces in the development of the plan. And we have to make sure that if and when we invoke the Emergencies Act, A, that we actually need to. Because thus far, they've been able to react without having to invoke the Emergencies Act. And if we deem that it is necessary, we have to do so in a fashion that allows Parliament... Allows us to comply with the obligations under the Emergencies Act to have Parliament authorize to contain an emergency.

0:46:58 MS: Right.

0:47:00 RF: Now another thing to bear in mind is, under the Emergencies Act, there's a sunset clause. An emergency declaration or a declaration of an emergency only last for 90 days. Now, that can be renewed and it can be renewed indefinitely. But there is a sunset clause which forces ongoing consultation, which forces ongoing supervision of Parliament, and that's there for good reason.

0:47:19 MS: Yeah.

0:47:19 RF: Right? Because we don't elect dictators.

0:47:22 MS: Right.

0:47:22 RF: Right? And so, that gives you a general overview on how the legislation works, we're not gonna go in depth into it. There's actually an annotated text book that deals with the Emergencies Act, which I imagine many people in the Department of Justice now are looking over in great detail. And we have to remember that both at the federal and provincial level, there's large numbers of lawyers that work for the government that are gonna be examining this as well to make sure that there's compliance, right?

0:47:50 RF: Because at the end of the day, despite some of the criticism that public commentators like myself might make about whether or not the rule of law is being respected, and God knows I've done that from time to time, whether or not the rule of law is being respected by the executive, there's going to be efforts made both at the federal and provincial levels to ensure that there's compliance with the rule of law. And since we're talking about the rule of law, we can go to the fifth point that I mentioned which is the impact of the charter, which is where everybody's mind immediately goes when they think of an emergency. But as I hope I've demonstrated, you need to first consider a bunch of other factors before you go straight to the charter.

0:48:26 MS: Right.

0:48:27 RF: So, here's what's interesting about the charter, right? The Canadian Charter of Rights and Freedoms was created by, again, the first Prime Minister Trudeau, the same guy who invoked the War Measures Act in 1970, amid a great deal of criticism. Those of us that remember it think back to, "Yeah, just watch me.", right?

0:48:48 MS: Yup.

0:48:48 RF: This is a guy who was bold in his action, this was a guy... He was the father of the Canadian Charter of Rights and Freedoms, as well the Patriation of the Constitution. In the same breath, we was the guy that invoked the War Measures Act during something other than war, amid much controversy and criticism. We have to remember that the Canadian Charter of Rights and Freedoms does not include an express provision dealing with derogation from the rights during an emergency. And I mention that because one of the inspirational pieces of legislation on the global stage upon which the Canadian Charter of Rights and Freedoms was based was the European Convention of Human Rights, which is now 70 years old.

0:49:30 RF: And the European Convention on Human Rights was generally a brainchild of British jurists, although there were others involved as well. But after World War II, there was a view that maybe we should have something that will govern human rights in Europe since there were some human rights violations during World War II. And certainly, the European Convention on Human Rights, not solely the European Convention on Human Rights, was an inspirational piece of legislation for the Canadian Charter or Rights And Freedoms.

0:49:57 MS: But it does have some sort of a emergency escape hatch.

0:50:00 RF: Not some sort of an emergency, it's got an express provision the deals with emergencies. Article 15 of the European Convention on Human Rights is entitled derogation in time of emergency. In time of war or other public emergency threatening the life of the nation, any high contracting party, and a high contracting party, for those that are unaware, means a country, a sovereign state. So, Canada is a high contracting party, not a high contracting party of this legislation, but for example, the United Kingdom is a high contracting party for the European Convention on Human Rights.

0:50:30 RF: So in time of war or other public emergency threatening the life of the nation, any high contracting party may take measures derogating from its obligations under this convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. And it goes on.

0:50:51 MS: Huh.

0:50:51 RF: There are some exceptions, right? So, there is no right of derogation from Section 2, which is the right to life. There is no right of derogation from... Sorry, not Section 2, Article 2, there is no right of derogation from Article 2. There is no right of derogation from Article 3, there is no right of derogation from Article 4, Paragraph 1, and there is no right of derogation from Article 7.

0:51:21 MS: So there's certain inviolable rights, but there's others that maybe we can get a little fuzzy on if there's an emergency.

0:51:26 RF: That's right, those are important. So, Article 15 generally permits derogation of certain rights during war or other public emergency threatening the life of the nation of the high contracting party.

0:51:39 MS: But the key point you're making is our charter doesn't do that.

0:51:42 RF: That's right. But since our charter was influenced significantly by the European Convention of Human Rights, from time to time, the Supreme Court and they're selective about this, but if we look at what those non-derogable rights are under Article 15 of the European Convention on Human Rights, so even though they can derogate from certain rights, they cannot derogate from Article 2, which is the right to life. There is an exception under Article 15, and that's except death resulting from lawful acts of war.

0:52:12 MS: Okay.

0:52:12 RF: For obvious reasons, because Article 15 is... Is dependent upon whether there is an emergency or war. So, obviously people do lose their lives in war, and there's a whole regime that deals with when that's lawful, but just because you're in a war doesn't mean you can smeary execute people who you don't like. Right?

0:52:34 MS: Right, yeah.

0:52:35 RF: That's one of the protections. Nor can you derogation from Article 3, which is the prohibition against torture. There's a non-derogation from paragraph one of Article 4, which is the prohibition against slavery. We have to remember that Article 4 of the European Convention on Human Rights deals with slavery and forced labor. So, Article 15 says there's no derogation from paragraph one, which deals with slavery, but there can be compelled labor during times of an emergency. And Article 7 which deals with probation against punishment without law. And so, if we look at the Canadian Charter of Rights and Freedoms, there is no express provision like Article 15 under the Canadian Charter of Rights and Freedoms, but there is Section 1, which states that certain rights in fact, any of the rights under the Canadian Charter of Rights and Freedoms is subject to limitation. So there are no absolute rights under the Canadian Charter of Rights and Freedoms because Section 1, which applies to all of those rights, states that limitations can be placed on those rights that are reasonable within a free and democratic society.

0:53:43 RF: And again, we get back to that context, because the limitation of rights in a free and democratic society will often be dependent upon the context in which those rights are being applied, as we know from Thomson Newspapers from over 20 years ago, Justice Bastarache tell us, "That context is the indispensable admin to the proper characterization of the objective of impugned legislation in determining whether or not it's justified. And that dealt with." So that quote from Justice Bastarache dealt with the application of Section 1 in Thomson Newspapers from 1998. So, even though there isn't an express emergency derogation provision under the Canadian Charter of Rights and Freedoms, generally speaking, you're gonna turn this to Section 1. But before you turn to section 1, certain rights have their own internal test. So Section 2 which deals with freedom of expression, freedom of assembly has its own internal test. Section 7, the right to life, liberty, security of the person, not to be deprived thereof, except in accordance with principles of fundamental justice.

0:54:49 RF: So, to use that as an example, people are deprived of liberty all the time, right? They're deprived of security of the person, from time-to-time. I served nearly 28 years in the Canadian Forces from time-to-time, her majesty required me to deploy overseas on operations. Was my liberty infringed on the fact that Her Majesty ordered me to deploy to Afghanistan? Yeah, I didn't have the choice I was ordered to deploy. Do you think my security, the person was adversely impacted by my deployment to Afghanistan? I would say yes. But I would not suggest that my section 7 right was infringed, and that's because I was deployed in a manner that was consistent with principles of fundamental justice, starting with the fact that I voluntarily joined the Canadian Forces.

0:55:35 MS: Right.

0:55:36 RF: Knowing what I was getting into. So, when you serve in Her Majesty's Forces, raised for the defense of Canada, you are subject to unlimited liability, or at least in the regular force... Always subjected to unlimited liability. That means, I can be deployed where Her Majesty requires me to be deployed, I can be required to use lethal force, and I can be required to be vulnerable to the use of lethal force against me, but I did so voluntarily. So there are internal tasks, applicable to rights under for example, Section 2 and Section 7.

0:56:10 RF: The way that the charter works is, if there is an infringement of a right, it is incumbent upon or the illness is placed upon the applicant or the right holder to show how the government, and it has to be the government. So the executive, the legislature, federal provincial has infringed that right. Whether it's right of assembly, right of freedom of expression under section 2, right to liberty or security of the person under Section 7. First, that right holder has to prove on a balance of probabilities, that that rate was infringed.

0:56:43 RF: Once the applicant proves that, then the owner shifts to the government to prove under Section 1, whether that infringement was consistent with principles under a free and democratic society, and that's where that context is gonna come in. That's what Justice Bastarache was talking about in Thomson Newspapers that context is gonna dictate that, right?

0:57:07 RF: So, the derogation or the infringement of charter rights may or may not be defended under Section 1, depending upon the context. And that Section 1 task for those people who are not indoctrinated in the law, goes back to an Oakes case and a little bit of a derogation on this topic. Everybody remembers case law, based upon... Particularly when it comes to the criminal code-based upon the accused or based upon the parties. So, any Canadian lawyer is aware of the Oakes Test.

0:57:41 MS: Right.

0:57:42 RF: If I were to ask even a law student who's completed first year here at Queens, "What is the test for determining whether or not an infringement of a right is consistent with a free and democratic society?" They'll tell me, "The Oakes test." Then if I ask them, "Who is the lawyer?" Most people won't be able to tell me that. So we remember the accused, we don't remember the lawyer. The lawyer was a guy, with name of Geoff Beasley and I know that because I know Geoff Beasley. I encountered him later on in his career, when he was a deputy current attorney. An outstanding guy, an outstanding lawyer. Here's the interesting thing, so probably the most fundamental case, and I mentioned this to show law students, what their future can be like? One of the most fundamental charter cases in the history of charter law. The Oakes test, was decided back in 1985, started back in 1983, soon after the charter had been an Act and introduced and entrenched in the Constitution Act 1982. Geoff Beasley started that case when he was a JD student.

0:58:49 MS: Really?

0:58:50 RF: He's representing... And before the Supreme Court of Canada, it was the Crown appealing a judgment of the Court of Appeal of Ontario. So Geoff Beasley was I think a second year call, maybe? Maybe approaching his second year as a lawyer, appearing before the Supreme Court of Canada, and successfully defending a principle that had been upheld by the Court of Appeal for Ontario, that has now defined Charter interpretation for the last 35 years.

0:59:19 MS: Wow.

0:59:21 RF: So you never know when you're going to get an opportunity like that. So the Oakes test, the deals with balancing the infringement of a right has essentially three parts to it. So first, there has to be... And this onus is placed on the Crown, there has to be a pressing and substantial objective, whether we're dealing with a legislation that's enacted or the actions of the executive under legislation. There has to be pressing and substantial objective identified with the infringement of the right. And that response must be proportional in the three-part test for proportionality. There has to be a rational connection between that pressing and substantial objective and the infringement, the action taken under the legislation or by the legislation must represent minimal impairment of that right in achieving that pressing and substantial objective, and there must be proportionality. And we get that largely from European case law. So any time in an emergency, the Crown purports to infringe a right. There's going to be that question of whether that can be justified under that test. And there's nuances to that test that have been refined through other cases, but that's what Oakes sets up for the test.

1:00:48 MS: Right.

1:00:48 RF: And here's where context is important. So I mentioned earlier in our discussion, the internment of Japanese-Canadians during World War II. And that was done under the War Measures Act. After World War II, there was a reference made to the Supreme Court of Canada, which was later upheld by the Judicial Committee of the Privy Council, but a lot of people like to focus on the actual judgment from the Supreme Court of Canada because there were several different judgments written by different judges. And it actually upheld the actions under the War Measures Act. And that's one context where during an emergency, one group of people is treated differently than another group of people. That's where that proportionality comes out. And a lot of people when they think about emergency legislation, they think in a modern sense, how the government treats people who are suspected of terrorism. And that proportionality balancing is about balancing the good of the state, the public good, against an infringement of rights of a very select group of people.

1:01:56 MS: Right.

1:01:56 RF: And often people who are racially identifiable. That's a different context than, for example, what we're seeing largely now, which is a potential infringement of rights of everybody and weighing that on a proportionality basis for the public good. And that changes the context I had suggested significantly because if the government comes out and says, "We're going to segregate these people who look different than everybody else because we doubt their loyalty to the Crown, because they have Japanese ancestry, because they have Japanese ethnicity, and we're gonna set them in internment camps." That's an infringement of liberty that's markedly different than saying, Right, we want... We're going to order all Canadians to do X, Y or Z."

1:02:50 MS: So suspending all travel.

1:02:52 RF: Suspending all travel.

1:02:53 MS: That's an infringement of our rights.

1:02:55 RF: Absolutely.

1:02:55 MS: We should have the right to move freely and the government can, under the Emergency Act say, "We're pushing pause on that."

1:03:01 RF: Well, actually, it's not that we should have right to move for freely. The Charter of Rights and Freedoms has actually gives us that right, a freedom of movement.

1:03:08 MS: Oh, yeah. No, no.

1:03:08 RF: But that's important because people don't realize that.

1:03:10 MS: Yeah.

1:03:10 RF: People, when they think about the Charter of Rights and Freedoms and they think about, for example, Section 2 they think about freedom of expression, they think about freedom of assembly. But it also includes freedom of movement. I can move anywhere in Canada, that's my right as a Canadian citizen, that's my right as a person in Canada. I can move anywhere in Canada. And so, if they're going to infringe that right, that is a deprivation of not only my liberty under Section 7, but also my right under Section 2. But we have to bear in mind that the context is such... That they're not limiting Matt's right, or Rory's right, or people who live in Kingston. The likelihood is that they will limit the freedom of movement on a great many people, and that changes the context. It's one thing to say, "Well we're not gonna let people of a particular race." Try defending that. Where's your rational connection? Where is your minimal impairment? But if they say, "Well, if you have tested positive for COVID-19 or you demonstrate the following symptoms, we are gonna prohibit you from going to a public place, is that infringement of your liberty? Yeah. Is that infringement of your Section 2 right? Yeah. Is it defensible within a free and democratic society? Well, in the context, quite possibly.

1:04:25 MS: That's where we have the Oakes test.

1:04:26 RF: That's where we have the Oakes test. So we don't really need an Article 15 under the European Convention on Human Rights. We've got a slightly different mechanism for derogation.

1:04:35 MS: Gotcha.

1:04:36 RF: And it's actually a much more flexible derogation it implies. During, in an emergency, there's going to be... That's going to alter the context. But it also ensures that the Crown, whether it's federal or provincial, because their actions that can be taken by the provincial government that could inhibit our rights under the Canadian Charter of Rights and Freedoms, which are still an infringement of those rights under the Canadian Charter of Rights and Freedoms where they have to consistently think of, "Well can we defend this? What is our pressing and substantial objective? That's rather obvious. Does this represent something that is rationally connected to that objective? Is it a minimal impairment? It doesn't have to be the least possible, but within a scope of the least possible impairment. And finally, is it proportional? And when you're dealing with a pandemic, I would suggest meeting that obligation, meeting that test is going to be easier than when say, you're singling out people because of a "global war on terror."

1:05:38 MS: Right.

1:05:39 RF: Or singling out people because by virtue of their ethnicity, you doubt their loyalty to the Crown. And so as a result, we may well see infringement of charter rights during the governmental response to the pandemic, whether it's the provincial, federal, or both responding to the pandemic. But just because they're presumptively infringing a right doesn't mean it's not defensible in a free and democratic society, provided they can establish that pressing and substantial objective and meet the three-part test under Oakes.

1:06:12 MS: Right.

1:06:13 RF: So that's very much a wave top discussion about this issue. And about an hour long, there's a little bit more than an hour long we've talked discussion.

1:06:22 MS: But by the standard this podcast, this has been extraordinarily comprehensive. It's been fantastic. Thank you so much, Rory.

1:06:28 RF: You're welcome.

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If prisoners can't receive education beyond a GED, how will they acclimate and survive when they leave prison? That's the starting point of some research work by Queen's Law criminal law professor Lisa Kerr and Queen's Law student Sam Bondoux, looking at issues around prisoner education in federal prison in Canada -- starting from the bizarre and nearly unique fact that Canada doesn't allow prisoners Internet access.

Lisa Kelly is a criminal law scholar, examining privacy issues among other things. She recently published a paper on the Jarvis case... and some of the issues that the Supreme Court decision raises about surveillance and privacy in general. She joins us, with Lisa Kerr, also a criminal law professor at Queen's Law, and the developer and instructor of the criminal law module in Law 201/701, Introduction to Canadian Law.

If you enjoy the podcast, take a moment to subscribe! You can learn more from Lisa Kerr about Criminal Law in Canada through her module in Law 201/701, Introduction to Canadian Law, at takelaw.ca.

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Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd. One of the side benefits of being a law student is you get to work with Law Faculty, and today we get to dig into those kinds of collaborations. Professor Lisa Kerr, is the creator and instructor of our criminal law module in law 201-701, Introduction to Canadian Law. For the past months, she's been working with Queen's Law Students Sam Bondoux on a project about Canadian prisons education and access to the internet, they joined me to talk about the surprising state of education in federal prisons and how student-teacher collaborations happen and work. Fundamentals of Canadian law is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

01:01 MS: Lisa, Sam let's talk about access to education among the prison population in Canada. What's the current lay of the land?

01:09 Lisa Kerr: Well, I think the first really important thing to say is to emphasize how high the needs are in terms of incarcerated people and education. So only 25% of those entering the federal prison system have a high school diploma. Compare that with the general population, where 80% of Canadians have a high school diploma. So that tells us this is a population that has a lot of educational need, and so it's no surprise then to learn that the Correctional Service of Canada, our federal prison system, does commit to delivering high school equivalency training within the prison system and so lots of inmates access that high school equivalency program. But there's also a small percentage of inmates who wanna go further than high school. We all know that a high school degree, high school diploma, is not gonna be enough in today's world to get a job, to get meaningful employment that's sustainable and so on, especially for someone with a criminal record. And so for those who wanna go further, beyond high school, while incarcerated, I think many Canadians would be shocked to learn that the prison system effectively prohibits them from going beyond high school.

02:20 MS: And it only makes sense that people leaving prison, the better their prospects are, the better the chance they have to survive and succeed in the outside world.

02:28 LK: Of course, that's just common sense. We all know that, right? That's why we all go to high school, go to college, encourage our kids to do so, so that we can have meaningful employment, take care of ourselves and our families. Sure.

02:40 MS: Right. So what are the barriers? What is prohibitive about people seeking that education?

02:44 LK: Yeah, so it's not an explicit prohibition, right? It's not corrections. They don't have a rule on the books that says nobody is allowed to go to college. But what they have is a situation in which the ban on internet access, and this is a total comprehensive ban for everyone in prison in Canada. You are not allowed to access the Internet in any way, shape, or form.

03:06 MS: Wait, wait, wait, at all?

03:07 LK: At all.

03:09 MS: Ever?

03:09 LK: Ever.

03:09 MS: What?

03:09 LK: Not to communicate with your family, not in any kind of secure supervised way. There is simply none of that. And I know Sam's gonna talk about what's going on in other countries on that topic. What that means in terms of accessing education is that inmates are unable to access distance education providers. Now, in the old days, right, before the internet, the prison system said, "Sure, if you wanna go beyond high school, you can pay for it like other Canadians do, and you can mail away and access a paper-based correspondence education program." And some inmates did that, they did exactly that. The problem today, is there are very few, if any, paper-based correspondence programs left. Why is that? Well, it's because online providers like Athabasca University, these other online education providers, they presume in a country like Canada, that everyone has access to the internet.

04:05 LK: So if you're gonna take one of these classes, you gotta go online, you gotta download materials, you may have to do a test online, you may have to access online tutorials. It is a presumption now, that distance education is online education. So the total ban on access to the Internet, is a total ban on access to any training or education beyond high school.

04:29 MS: Right? And I was in a meeting earlier today kind of in my professional capacity and we were looking at trend lines of, here at Queen's, of in-class education versus online education, not at the law school, but kind of in the school as a whole. And it is a dramatic shift over time in terms of how much education people are seeking online. We're changing our model, we are as an institution gravitating more towards online course delivery than anything else.

04:58 LK: I think that's one of the reasons I've become very passionate about this topic is, I work in a university, I'm well aware of this shift to online education, and I'm well aware of some of the benefits that flow from it. It's more democratic, people living in remote regions can access it, people with complex family care obligations, and so on can access it. It's a great thing, and it's something that it makes simply no sense to not bring these developments into penitentiaries. These are places where, as I say, people have high educational needs, people are often without meaningful activities, it's expensive to run programs in these places. You gotta get staff and it's difficult to get people past security. There are all kinds of limits on what you can do in terms of rehabilitative programming in the prison system and accessing an online course is not difficult. You set up a little computer room, you make sure that all the security controls and everything are in place, and you let people go sit in front of a screen and learn. Why would we not do that? Why would we insist that inmates sit, unoccupied, unable to develop as individuals, unable to connect with their families, all these things that would keep both the prison safer, and the community safer once they're released?

06:16 MS: Right. And I'm still stuck on zero internet. I had no idea. I just I guess I just assumed there was some sort of controlled, gated, observed, monitored, but you could check your email every once in a while or something like that.

06:29 LK: There isn't and it is something that I think Canadians don't know about, and I know Sam knows a lot about what's been going on in other countries on this topic.

06:37 MS: Yeah, that was kind of where my head was at was... Is this just a Canadian thing, or is there sort of like a global literally global prohibition on people in prisons accessing the internet?

06:49 Sam Bondoux: No, it's actually, it's quite the contrary. It's really, Canada is far far behind other jurisdictions in terms of access to education and post-secondary education needs in prisons. We're lucky that we can look to the other jurisdictions to see how they've been doing it, and how they've been successful and what sort of systems they've put in place. So even the US prisons have limited access to the internet for their inmates for post-secondary education but also for other things like communicating with their families. And Europe is far far ahead of Canada so they have many different programs in place in different European states. And what these programs look like are essentially an internet network specifically for the prison system where they can manage security risks. They... For example, in the UK, they take an inmate profile and when the inmate enters the prison, they're assessed, their risks are assessed, and they're given a specific login and on their log in, they have limited internet access, tailored to their risks. So if they have employment needs identified at intake, they might have the ability to access the Internet for instruction on how to improve their CV or instruction on what sort of skills they have in what sort of workforce area they might enter when they're released.

08:15 SB: And this becomes really, really important at release because in Canada, when inmates have a statutory release date coming up or a parole hearing one of the things, specifically at parole hearings, that the Parole Board of Canada will be looking at is their release plan. They do not have access to the Internet to make themselves this release plan and so when they get out, they have to do all that stuff. So whether that's finding a job is the big one, which is clearly linked to recidivism, and sort of returning back to that criminalized life.

08:50 MS: Right? So we know from international examples, like at home, I can log into my router, and turn on parental controls and I can say that the internet in my house can access these sites and not these sites, so we know systemically from other jurisdictions that it's entirely possible to make basically a internet for the prisons that only allows people to access what they need to access to pursue education, job opportunities, that kind of thing.

09:17 SB: Yeah, that's exactly right. And really, what has happened is since this ban on the Internet has been in place, the ban is in the correctional services policy, which was put in place in 2003. And really, at that time, the internet played a completely different role. There's been huge developments in the Internet in the past 20 years, and it plays an increasingly important role in daily life, really. Not just post-secondary education, but in the way we communicate and in the way we do simple tasks like banking and really, with these developments that have made the internet so important in the general community, we've also seen developments in technology that allow us to really achieve those security goals as well. And that's what we've seen in these other jurisdictions;that they can use the technological developments to make sure that the access is really secure, which is of course something that we're worried about also, but it's doable.

10:19 LK: Yeah, it's not just this big scary thing in the outside world, that inmates are gonna have unfettered access to. That was kind of where the ban came from, in 2003, right. Now, as Sam's saying, we have all this technology, we can control exactly what folks are doing on the computer. Net Nanny, any parent [chuckle] knows all about these software management or programs. And so, the prison system just hasn't caught up yet.

10:47 MS: Yeah.

10:49 LK: And why haven't they? 'Cause they don't have to. This is an isolated population, it's very difficult for them to assert their rights it's very difficult for them to access lawyers and so the prison system hasn't had the pressure on it to catch up with technology and with the needs of the populations held there.

11:06 MS: And I guess just as a mental exercise, I am just trying to think of what I could do and what I could access these days. Now, in 2020 without internet access. It's not much. It would be profoundly difficult for me to even in-class education would be impossible for me to pursue without internet access. I need to register for these courses.

11:26 LK: Well, and here's the thing. So one of the things the Prison Service has said in response to some of these critiques that we're making is they said, "Well we do deliver some college courses within the prison, right? And there is an excellent program called Walls to Bridges. We're developing this here at Queen's University right now, in fact, and Walls to Bridges there are university professors, who go in to institutions and teach university courses. And in fact, they're for credit and then the students enrolled at the university can go into the prison and take classes with inmates and it's an incredible experience for everyone involved, and there are classes like that. The problem is, number one, they're not available in every institution. Number two, they're one-off classes, right? Yeah, you could take a sociology of punishment class potentially at a particular prison, but you can't work toward an accreditation.

12:16 MS: Right.

12:17 LK: Right. And that's... These people don't need random humanities classes, they need an accredited degree, or diploma, so that they might be able to get employment. I'm sure they enjoy and benefit from intellectually these other courses, but we need to offer all of it to them. And the third thing is that even the folks who teach in Walls to Bridges, or other one-off college courses, they talk about how difficult it is to teach students who cannot do homework between classes, who cannot go online and learn between classes. It's not like they have great access to text books and literature in prisons, either, so they're delivering these courses. Sure, there's a ton of limits on access across the country and it's really hard to teach students who don't have a computer.

13:02 MS: Right. I mean, again, even here, I've taken some courses at Queen's recently, courses in the Certificate in Law, in fact, but even the in-class courses, you still have to log into learning management software, your readings are there, video reviews of past classes are there. It is even the most kind of in-class class is still integrated with online services to a point that I can't imagine how you could disassociate them at this point.

13:29 LK: Right, well you can't.

13:30 MS: Right? And so, hence the problem. So are there any other risks that people are considering in terms of granting internet access or is this pretty much just solved by this problem of we can gate and control what people do have access to.

13:45 SB: Oh, it is really solvable. And one of the things that they see in for example, in Norway is that it's a highly motivating tool to have for these inmates so they can monitor it. The internet is very monitorable and you can see what it's being used for, and you can take it away as easily as you can grant it to these inmates. So having this access to the outside world is a highly, highly motivating for them and can completely change the culture in the prison to a culture of learning as well, which is, it's just another side positive benefit.

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14:30 MS: Hey it's Matt, it's early in the new year, and a great time to think about your 2020 goals. If education is on the list, consider signing up for the Certificate in Law, the only Online Certificate of its kind offered by a law school in Canada. If you take just one course a semester online, starting this May, you'll have the Certificate in Law from Queen's University, one of the best law schools in the country, by the end of 2021. We offer courses in corporate law, Aboriginal law, intellectual property, workplace law and more. No matter what you're doing in life, you can get a deeper, richer understanding of how the law affects you as a citizen and as a professional, through our program. Find out more at takelaw.ca.

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15:18 MS: There's something else that's kind of anomalous about Canadian prisons which is the indigenous population in Canadian prisons is way out of whack with the actual indigenous population in terms of per capita, the number of people in Canada. Does this have a knock on disproportionate effect on indigenous inmates?

15:37 LK: As I always tell my students in my prison law class, every prison policy in Canada has a disproportionate impact on indigenous people, because our prison system is disproportionately full of indigenous people. So yes, this is a state policy that is basically saying, for those indigenous people who've been taken from their families and their communities, and incarcerated, we are gonna stand in the way of maintaining family bonds and relationships, being able to access elders in your community and so on. Other things that could be hugely important for an indigenous inmate to both do well while incarcerated, and have some ability to re-integrate. We're saying to that indigenous inmate, you can't develop your education, you can't do a course at Athabasca in indigenous studies while you're incarcerated. These are absolutely unacceptable especially, when we're dealing with a 30% prison population indigenous people in Canada, and so we have sort of come a long way in terms of recognizing that the indigenous people in the prison system are... The reason they're there is largely because of the legacy of colonization in this country, right, the impacts of residential school, the impacts of the Sixties Scoop, the impact of the rates of children in care, indigenous children in care.

17:03 LK: We know, we recognize that those state programs of discrimination generated this huge prison population, right? Did things to people that caused them or contributed to their offending and now they're sitting in prison and we say, "You can't do any of the things that would help you heal as a person from those experiences, that would help you gain knowledge, that would help you stay connected to your community and to the healthy parts of your life." And so to me, these issues are particularly unacceptable when we think about the demographics of the Canadian prison system, and the role that colonization has played in producing that population.

17:48 SB: This policy is really further marginalizing this group of people who are already so marginalized and it's really a unique and new feature of our prison system, that it's the sort of social isolation from the real world. And when you're in there for really any amount of time, but longer amounts of time when this digital world is moving at such a rapid pace, you come out, and it's really this type of isolation that we've never seen before.

18:14 MS: It seems like there's sort of a two-tier problem that you're discussing here. One is should inmates have some access to the internet as an important part of life, not just for education, but for other things. And there's kind of a parallel question of should inmates have access to education, which by necessity requires access to the internet. So which comes first?

18:37 LK: Well, you're now getting into the territory of strategic litigation. [chuckle]

18:42 MS: Right. Fair enough.

18:42 LK: In asking which comes first. I don't think they're separable. They're not separable, but I think that it's more strategic to talk about the need to access education. I'm not just talking about fancy post-secondary education, I'm talking any training beyond high school, whether it's a trade or vocation, accounting degree or computer science or sociology, right, whatever it is. It's the fact that the lack of internet access impairs access to those things makes it particularly unacceptable, and so I think that's a really effective way to communicate this issue but equally important is the ability to communicate with family, to know how to do online banking before you're released from custody, to be able to maintain these technological skills that everyone else in society absolutely has.

19:41 LK: And so the issues are not separable but I think the education angle on it is what could particularly capture the attention of Canadians. In a way you don't wanna be pushing for the right to the internet 'cause that sounds maybe too fun.

19:57 MS: [chuckle] Fair enough.

20:00 LK: But the reality is, yes, the internet is fun, but the internet is also how we run our lives. Right, and how we... And it's not all just for folks who might wanna access an actual program, Distance Education Program. There's all kinds of free educational tools online, right? You look at the Harvard Open Learning initiative you can basically take any course at Harvard for free online. You don't even have to be part of a registered course. There's all kinds of MOOCs, right, these massive open online courses. These are the kinds of things who knows if folks will actually register and pay for our distance education course. But why would we not want them sitting there learning and making use of this dead time away from society? And you know Matt I think about the fact for many years now, I've worked on trying to reform the laws of solitary confinement and solitary, putting inmates in solitary as a way of controlling and responding to behavior, responding to the problems that prisons have in trying to manage institutions. And then I look at this issue, and I go... How about instead of giving them more isolation, you give them more engagement, more meaning.

21:10 MS: Right?

21:10 LK: Something to do other than the bad behavior that gets you into solitary. So I started to realize it's not just about getting a prison system to stop doing really bad things to inmates, but also to turn their attention to the positive and productive, and engaging things, that they could be doing.

21:26 MS: But there's a whole trope in movies, television shows. The guy gets out of prison, and it's a strange and unfamiliar world, 'cause he's been inside for so... What are these things called cellphones? And I think with technology the way it is today, and where we are today, the amount of time it takes to create that disconnect is much shorter than it used to be. And if you don't have internet access at all, you are disconnected from the world in such a profound way, that I think it's taking less time for people to be kind of divorced from external reality and harder for them to reintegrate if they don't have those resources.

22:02 LK: Right? I feel that I am divorced from technological change because I haven't kept up enough myself, so I can well imagine how they feel. One thing I should say I've taught courses in prison, and there's something really magical about it, because no one is on their phones.

22:18 MS: Right, fair enough. Yes.

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22:20 LK: And it's a space where even I have to leave my phone at the front gate. It's a space where you actually realize how oppressive technology is for the rest of us in many ways. And so the suggestion is not to just have iPhones everywhere and all of these things, but to have controlled responsible use. I mean, arguably, [chuckle] we could use some of those limits in society as well, but to just say no access a total ban. The United States isn't doing that. Europe isn't doing that. Canada is way behind; a total ban makes no sense.

22:57 MS: Yeah, so I'm curious about you guys, so Lisa, you are a law professor, Sam, you are a law student, how did it come about that you were working on this project together?

23:06 LK: Yeah, well I was looking for a research assistant to develop a policy paper, on this topic, and Sam was enrolled in the Queen's Prison Law Clinic, which is a really awesome opportunity that students have here at Queen's to go and do real legal work on the ground, go inside the penitentiaries in the Kingston region, and represent inmates on their various legal issues. And so Sam was doing that work and that was exactly the kind of research assistant, I was looking for. And so I think what's cool is that Sam's been able to take the academic work that she did for me and then go to the clinic and think about, "Okay, now what concrete legal steps can we actually take to try and make change?"

23:48 MS: Right? So it's a sort of a fluid, translation from the research part to the work at the clinic.

23:53 SB: Right it's... It's really a well-rounded experience on the side. In the evenings, I get to do this research and then in the day I get to go into the prisons, meet these people who have these problems and hear about how they cannot access education that they wanna access, they cannot develop themselves in ways that they want to develop. And then I get to go to the clinic and really think about the strategic litigation side of it, and the law, which is pretty cool.

24:18 MS: So what happens at the end of this, is there a paper or is there... What is the end point of the work you're doing together?

24:25 LK: Well, we're working with a civil liberties organization that may do policy and litigation work moving forward, and the clinic is also invested in doing the litigation and advocacy work that could create change. These things are fairly long process and they involve multiple levels, right? Advocating, lobbying our policy makers and our politicians, doing podcasts like this, get it raising public awareness, and then also using the sort of more blunt legal tools of the grievance system and judicial reviews, and so on. So we're thinking about all of those pieces and pursuing each of them. Yeah.

25:09 MS: Great. Thank you so much guys.

25:10 LK: Thank you.

25:12 SB: Thank you.

25:16 MS: Thanks to Lisa and Sam. There's a lot that most of us don't know about Canadian prisons, and you get a glimpse into that system and how it works in the criminal law module of Law 201/701 Introduction to Canadian Law. If you're interested in government and power in Canada, we also offer a deeper dive into the subject in law 205/705 Public and Constitutional Law. You can learn more at takelaw.ca Fundamentals of Canadian law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton who is also a staff member here at Queen's law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Thanks for listening.

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A few years ago, the City of Kingston introduced some measures designed to curb some of the excesses of student life, especially at certain times of year. The creation of new powers to govern partying in the city with special attention on students has obviously attracted the attention of Queen's Legal Aid, the law school's clinic dedicated to supporting students and residents with low incomes in a wide variety of legal matters. The director of Queen's Legal Aid, Blair Crew, joins us this week to talk about the University District Safety Initiative, busting some myths and also looking at the related Nuisance Party Bylaw. Even if you're not a Queen's student, this is worth of listen as more of these kinds of by-laws continue to be drafted and introduced in various jurisdictions across the country.

Visit the Queen's Legal Aid page that details your rights under the law, and consequences for house parties, here:

Keggers & Consequences

If you enjoy the podcast, take a moment to subscribe! You can learn more about criminal law in our Criminal Law module in Law 201/701, Introduction to Canadian Law, at takelaw.ca, and about municipal, provincial and federal powers with Law 205/705: Public and Constitutional Law.

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Theme music for Fundamentals by Megan Hamilton.

Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd. We're recording this podcast as part of the certificate in law here at Queen's Law, the law school at Queen's University in Kingston, Ontario. A few years ago, the City of Kingston introduced some measures designed to curb some of the excesses of student life, especially at certain times of year. The creation of new powers to govern partying in the city with special attention on students has obviously attracted the attention of Queen's Legal Aid, the law school's clinic dedicated to supporting students and residents with low incomes in a wide variety of legal matters. The director of Queen's Legal Aid, Blair Crew joins us this week to talk about the University District Safety Initiative, busting some myths and also looking at the related Nuisance Party by-law. Even if you're not a Queen's student, this is worth of listen as more of these kinds of by-laws continue to be drafted and introduced in various jurisdictions across the country.

01:00 MS: Fundamentals of Canadian Law is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:14 MS: Blair, I thought we could talk about some of the myths surrounding the University District Safety Initiative. And what, from your vantage point as the Director of Queen's Legal Aid, what you've heard out there that might be misinformation that's worth correcting.

01:29 Blair Crew: Absolutely. The University District Safety Initiative is an initiative on how certain offenses are prosecuted, but there are a number of misnomers right within the name itself. One of them is that it only applies to the University District. The City of Kingston chose to name it that with reference to the area where most frequently it is invoked, but there are no set boundaries for the University District. The initiative makes it clear that it can apply anywhere in the city at any time. So it's not as if anybody can look on a map and say, "Oh, we're just outside the border, we're safe, we're not caught by this."

02:09 MS: Right. And that makes sense because there isn't a border. There isn't officially a University District. I couldn't say it with accuracy it's Albert down to Barry, from X to Y. So it has to apply across the entire city.

02:23 BC: There certainly is an area that the city associates or the university associates as being the student housing area, but the policy of the rule is that it's going to apply more broadly than that. And they didn't wanna define precise boundaries as to where that was and was not going to be.

02:40 MS: Okay. So East and West and all over, anywhere in the City of Kingston, this applies.

02:45 BC: Absolutely.

02:46 MS: Okay.

02:47 BC: Apart from that, there's also a myth in the notion that it only applies at certain times of year. Specifically, the University District Safety Initiative does say that it's the initiative that is going to be applied during orientation week, during Homecoming and significantly around St. Patrick's Day. However, the University District Safety Initiative and its way of prosecuting offenses catches any conduct that is caught under the related Nuisance Party by-law. And it's not restricted to those times of year, so it's not as if you're one day before St. Patrick day's or one day after or the Saturday closest to St. Patrick's day that you are necessarily safe. You can still be charged with the Nuisance Party By-law and it can still be prosecuted under the University District Safety Initiative.

03:40 MS: So it's anywhere in the city and any time of year. It is not gated to specific times a year that have been problematic in the past.

03:47 BC: That's correct, with a particular ability to apply it at those three times, where the underlying offense is either under the Liquor license Act or the City of Kingston Noise By-law.

04:00 MS: So, you're naming two offenses there. Can we break those down one at a time?

04:04 BC: Sure, and in fact, the University District Safety Initiative applies to three offenses.

04:09 MS: Oh, okay.

04:09 BC: So the three offenses are the Liquor Licence Act, the City of Kingston Noise By-law and the City of Kingston Nuisance Party By-law. All three offenses will be prosecuted under the procedure that is provided by the University District Safety Initiative.

04:27 MS: I actually thought the University District Safety Initiative and the Nuisance Party By-Law were the same thing until now.

04:32 BC: They are actually separate things.

04:33 MS: So another myth busted right out of the gate.

04:35 BC: Absolutely.

04:36 MS: So let's break these down one at a time.

04:37 BC: So the Liquor License Act that's a province-wide act. It's probably the one under which we see the most charges that are actually laid. The primary offenses under that act would be any minor having alcohol at any time. And what's best known for this is the open alcohol in a public place. We see the most charges laid under that. Under normal circumstances, that subject to the fines and penalties that are specified by the province in the province-wide Liquor License Act. But the University District Safety Initiative takes over to say that in the City of Kingston at those times of year that I outlined they're going to be prosecuted under that procedure.

05:19 MS: Can the city do that? Can it just sort of say, "We are adding additional powers to the powers of the province to kind of do our own thing in addition to what the province does."

05:28 BC: It's actually a question that I took a close look at because I would love to find a way to challenge the wide use of some of these powers. However, the Municipal Act does delegate to the city, wide powers to regulate of matters of a city's concern. So, absolutely, they are entitled to supplement or to provide a code of procedure, if you will, for existing provincial offences. And as the City of Kingston has done, they're also free to enact their own by-laws to create offenses that could be used under that initiative.

06:00 MS: So the city does have the power to take something that the province has and then put their own spin on it. It may not be the best language, but they are given the power through the Municipalities Act to kind of dial up and reinforce and enhance something that's covered under provincial law.

06:00 BC: Absolutely. And the University District Safety Initiative specifically provides that if you get charged with an offense that would normally simply be a ticketable offense that instead you're going to get a summons to attend to court. That's the outstanding feature of the University District Safety Initiative. It's much more inconvenient for students because instead of simply paying the set fine, they are required to come to court.

06:44 MS: Right.

06:44 BC: And if they don't show up in court then there's going to be a trial in absentia. And one of the features about this is that it removes the provincial or city set fines that normally you could pay just not disputing liability. It requires you come to court, instead. And once those fines are removed, now you're subject to the maximums under the Act, theoretically. The reality is nobody ever gets near the maximums that are ridiculously high. But you do see that amounts that are higher than if you had simply had an ability to pay a set fine. Interestingly enough, I wondered whether the city had the authority to do that. But it's a little known procedure that is available under the Provincial Offences Act, where even minor offenses can be initiated by issuing the person who has been charged with the summons instead of simply giving them a ticket that allows them to simply pay the fine.

07:37 MS: So the summons isn't just a way to add annoyance and more burden to the student to discourage them. It's actually kind of a gateway to a higher threshold of fines and punishment than the city would normally have access to.

07:48 BC: That's right. Most of us are familiar with something like a speeding offence where one of the options that you get is it will calculate what the fine you need to pay is and you simply have the option of not disputing it, paying the set fine, signing that you're guilty, sending in your check or your MasterCard payment, and then you're done. By requiring students usually to attend court, it removes those set fines and subjects the students to higher possible penalties.

08:17 MS: Right. A quick side note, just because you just used the word students. Similar to the fact that this takes place anywhere in the city and at any time of year it is not just something that is applied to students. This could theoretically apply to anyone of any age.

08:30 BC: Yeah, they could not make that discrimination in the act. Everybody knows that it is aimed primarily at students. It is called the University District Safety Initiative after all. The target is very, very clear. So I use the word students. The vast majority of people that we see that are charged with the events are in fact students at Queen's and occasionally at St. Lawrence College.

08:52 MS: Right, because you'd be running into significant charter problems if you tried to make a law that just applied to people of a certain age.

08:58 BC: Yeah, I looked for that and hoped that we could see it in order to challenge it. Sadly, it's not there, and they've been a little bit more clever than that in the way that the legislation has been drafted.

09:06 MS: Right. So is that everything on the Liquor Act, or is there more stuff to cover there?

09:11 BC: That's the essential thing. It's the open alcohol is the big one. Public intoxication is another offence under the Liquor License Act. It's often one that we see charges laid.

09:22 MS: So number two.

09:23 BC: Number two is the Noise By-law. The Noise By-law basically specifies that any noise that is audible from the street is unusual noise that is subject to a violation of the Noise By-law. There are two ways that the by-law works, one of which is that if it's above a certain decibel at set times of day, typically, after 10 PM, then it's automatically an... Sorry, typically before 10 PM it's automatically an offense. However any noise that is heard from the street after that time is automatically deemed to be a Noise By-law violation.

10:04 MS: Okay.

10:04 BC: One of the things that's exceptional about the Noise By-Law is that it also carries... It will be prosecuted under the University District Safety Initiative and the fines are often in the range of $500. The by-law specifies that the fine can go as high as $10,000, but for a first offense, a $500 fine is really quite high and well beyond the means of many students to be able to pay it readily.

10:29 MS: So let's break that down a bit. My limited experience with Homecoming, for instance, a noise that's audible on the street, the noise is often on the street and the source of the noise is actually on the street. So how does this work in terms of deciding what is or is noisy?

10:46 BC: Well, so really, the primary way that it's used is to enforce effectively a time curfew.

10:51 MS: Okay.

10:52 BC: And the goal of the by-law is we don't wanna disturb people when they're sleeping.

10:57 MS: Right.

10:57 BC: So, to that end, after a certain time, any noise that you can hear from the street can attract... If the party is in fact on the street then that's de facto going to be a violation of the City of Kingston Noise By-law. I guess the law is also designed that unless you have a permit for it, even during the day, if your noise is simply too darn loud, then you can be charged under that as well.

11:19 MS: Okay.

11:20 BC: There are exceptions and you can apply for a permit to be allowed to exceed that noise level for particular individual events.

11:27 MS: Right. And so what's the trigger for this? Does someone actually have to call in a complaint for this to be activated or is it just kind of passively waiting for noise to happen?

11:37 BC: There are no requirements that somebody phone in a complaint although frequently that is the way that it occurs. The city will respond if they get a complaint that my next door neighbour is hosting a very, very loud party, particularly if it's after that 10:00 PM time.

11:52 MS: I live on a street with a band. The band Loves to practice. They are not a good band, but they love to practice and they love to practice late. So my hand has drifted towards the phone many times, and I've never actually made that call.

12:05 BC: Well, you'd be delighted to know that subject to what you want your relationship with your neighbors to be like, you do have an ability to phone the City of Kingston and ask that they come and enforce that Noise By-Law.

12:16 MS: Okay. For the purposes of this conversation, it's not actually... You don't have to have a complainant to be violating the by-law.

12:24 BC: No, and we've seen several examples where what happens is the City of Kingston Police will be outside just around that border time, and then will start enforcing the Noise By-Law as soon as it goes after. So they are their own witnesses to the fact that noise is audible from the street. Again, particularly in the downtown housing area, they seem to be ready at times, particularly at the times when the University District Safety Initiative's in effect to go and pounce on any noise that they hear that's loud.

12:36 MS: If you're having a party, and the party has spilled out on to the street and the clock strikes 10:01, who's the originator of the noise in that case? Is it anyone and everyone that happens to be around the area? Is it the owner of the house that they deem the noise to be coming from? How do you figure out who's responsible?

12:36 BC: Well, this is where the Nuisance Party By-law, the third of our three statutes or laws kicks in.

12:36 MS: Okay, well, let's take a quick break and then we will get back and start digging into the Nuisance Party By-law.

12:36 BC: Alright.

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13:28 MS: Hey, it's Matt. Our conversation with Blair digs into a few interesting areas, criminal law, obviously, but also issues of power and how cities can create their own powers to make and enforce by-laws. No matter what legal issues you're interested in, the Certificate in Law has you covered. Criminal Law is a module of Law 201-701: Introduction to Canadian Law. And we also have a whole course about the Constitution, powers and how they work in Canada. Law 205-705: Public and Constitutional Law. If you're a Queen's student, certificate courses may also be applied to your undergraduate credit requirements. You can find out more about these courses and sign up to takelaw.ca.

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14:13 MS: So Kingston has a Nuisance Party By-Law and this is something that I actually had confused with the University District Safety Initiative. There are two different things, but it seems like the University District Safety Initiative is kind of there to point in most significant ways or many significant ways to the by-law.

14:32 BC: Right. So the Nuisance Party By-Law is a separate by-law passed by the City of Kingston, and it really provides a power to the police and an ability to lay additional charges. It's significant because the Nuisance Party By-Law is the one that is not restricted under the University District Safety Initiative to only those certain times of year. So at any time that the police lay a charge under the Nuisance Party By-Law it can and will be prosecuted by way of the University District Safety Initiative. The outstanding features of it are that, first of all, it gives the police, the Chief of Police or his delegate, which is basically going to be any officer that has been empowered to do so, the ability to declare a party a nuisance party at any time. Once that order has been issued, then all of the attendees must immediately leave the party. Following that, the city can issue to the property owner or to a tenant of the residence an order that they host no more parties for the next two years. If it happens within another two years, you don't need to give the warning, any person can be instantly charged.

15:46 BC: So with respect to the question of, "Who does it catch?" the by-law is very, very widely written. It can be the host of the party. You're also free to charge any attendee of the party whether that's after the warning has been given or the fact that the party was precluded from the beginning. In addition to that and if that weren't enough, the city was concerned about absentee landlords. So the owner can be charged even if the landlord is, in fact, in China at the time. Any person that is an occupant of the residence can be charged, and any person that is a tenant of the party can be charged under the by-law, even if the tenant was not involved in the party. So if you live there, if you rent there, you can be responsible and you can be charged.

16:33 MS: The visual metaphor in my head is like... It's kind of like a T-shirt gun. We're just firing charges off, willy-nilly, except no one wants the charge and most people want a T-shirt.

16:42 BC: The only way that the analogy is not appropriate as that's right, in this case, people would be fleeing from the T-shirts as opposed to trying to get them.

16:52 MS: Right.

16:52 BC: We've seen several situations where people, in fact, tried to flee from the T-shirts, but it gives the police an ability to charge anybody that they find there, any attendee of the party. So typically what happens is people do scatter fairly quickly once the police show up and declare the party to be a nuisance party.

17:12 MS: What's a party?

17:14 BC: So, a party is basically any gathering at all, but there is a list of conduct under the Nuisance Party By-Law that is specifically designed under the definition of party of the kind of conduct that they are looking to prohibit.

17:28 MS: Okay.

17:29 BC: The primary indications that would be a party featuring any public intoxication, so a party that moves from being completely contained to being out on the streets. If the party involves any blocking of traffic or really has spilled out onto the streets. If we get into things like people urinating in public, then that's going to be deemed to be a gathering that is subject to the Nuisance Party By-law. And significantly and again, maybe misunderstood, but any rooftop party can be deemed to be a nuisance party unless the roof is specifically permitted to host large numbers of people. So, the idea that I'm only having a few people on the roof, therefore, it can't be a nuisance party is probably incorrect. Very few roofs in the City of Kingston are zoned such that they can host a large number of people.

18:22 MS: Right. And maybe I'm just being pedantic at this point, but if one of the outcomes of this is they say, "This domicile can't host a party for the next two years," is that only parties that trigger any of these other conditions or is this anything that's deemed a party at all?

18:37 BC: It's anything that has been deemed to be a party under the Nuisance Party By-Law, which again the police have the power to do.

18:44 MS: Right.

18:45 BC: So really, it's a broad range of conduct that the police can say, "That constitutes a nuisance party." Effectively, it's almost anything that would make a party worth attending. But as soon as that happens, then the order can be issued. The party must stop immediately, or the charges could be laid. And I guess one of the ideas of going with owner liability is that it might not even be the same group of people that have been precluded from having a party there. If there is a landlord that rents to a group of students one year and those students all graduate and move on, you could be renting a house that is subject to the Nuisance Party By-law without even knowing that you've done so. And you could end up facing charges simply because the people that were there the previous year had hosted a party deemed to be a nuisance party.

19:26 MS: Right. So, what counts... I'm assuming that we're not gonna roll out the town crier and have a scroll, what counts as someone declaring something a nuisance party?

19:26 BC: So again, that's specifically a power that is given to the police. So the police basically do need to pronounce loudly at the scene of the party under the authority of the Nuisance Party By-law, "We are declaring this to be a nuisance party, and we are telling all attendees to disperse immediately."

19:26 MS: Okay, so you do have to have law enforcement on site and a public declaration that this has been deemed a nuisance party.

19:26 BC: That's correct.

19:26 MS: Okay. So... But that's the point where they can... Is there a time limit? Do you get a head start before they start laying charges or is it, "This is a nuisance party," and then the T-shirt cannon starts going off?"

20:19 BC: I think that the argument can clearly be made that they've gotta give you fair warning. They've gotta give you a reasonable length of time to disperse.

20:26 MS: Right.

20:26 BC: From my observations that length of time is not very, very long. And of course you're dealing with people that are already well into the party, and you're dealing with people that generally speaking, they may be a mere attendee, they don't know the history of this house, they're probably unfamiliar with most of these laws. So sometimes, it results in, let's just say, some attitude towards the police officers.

20:50 MS: Right.

20:51 BC: And where that occurs, that's one of the most sure fire ways that you can be sure that you're the person that they're going to choose to charge by virtue of the fact that you were an attendee. We have seen situations where it is the innocent tenant that comes home that says, "I had nothing to do with it." And faced with that response, that's when the police may decide to lay a charge. So, fairly you need to be given some warning. I think that I could challenge a charge that was laid too soon, but it's not specified how much time they need to give for you to disperse or the party to end. It just better happen pretty darn quickly if you wanna be on the safe side of the law.

21:29 MS: So laddering all the way back up to kind of the broad myths, do you have to be a Kingston resident to be charged under this by-law?

21:37 BC: Not at all, you could be any individual that is at the party. So one of the features of Homecoming is that many of the people, we call it Homecoming for a reason, "have come home" for the weekend and may be visiting their friends, some of whom are still students. Those individuals can be charged. Anybody that's at the party.

21:56 MS: Okay, because, yeah, anecdotally, there are a lot of students from other universities that come down for Homecoming 'cause they hear it's gonna be a fun time. And so there's a lot of non-Kingston residents, and they can all be charged under this.

22:09 BC: I think so. Queen's students tend to feel a real loyalty to the school to Queen's and to the school to which they attended, and they have fond memories of their times as a student. It's why it's one of the most successful Homecomings of any university in Ontario. At the same time, the University District Safety Initiative and the Nuisance Party By-Law are responses to that very success.

22:32 MS: Right. So is there anything else kind of that we need to cover in the Nuisance Party By-Law.

22:38 BC: Under the Nuisance Party By-Law, there's really nothing else. It's almost anything that is going to make the party notable is likely to trigger the potential that it could be declared a nuisance party.

22:49 MS: Okay. So what's the big picture here in terms of, from your vantage point, since this was implemented, has there been a change in the type of and sort of scale of partying going on in the university or has it kind of been the same but with more charges being laid?

23:08 BC: I'm not so sure that there has been a significant change. The University District Safety Initiative in the language that the city used to pass it as well as in the preamble to the Nuisance Party By-Law, they talk an awful lot about that golden goal of any criminal or quasi-criminal law, which is deterrence.

23:30 MS: Right.

23:31 BC: I think that students and people that are attending parties don't particularly think deterrence. I don't think that they're thinking, "Oh, what are the consequences of this?" People are simply out to have a good time. So from what I've seen, I'm not so sure that it has had a significant effect on cutting down the amount of the conduct. What has happened, however, is the police have tools to respond more quickly. So recently there was an example where by 11 o'clock in the morning, the police had already attended well literally this party had already flown out onto the streets, but declared a nuisance party as of 11 o'clock in the morning. So, what I think has happened is that the police have an ability to respond much quicker than they used to, and more tools for enforcement once they do.

24:16 MS: Okay. And Queen's Legal Aid has produced some tools to help students. Well, help out everyone really understand what the parameters are. You produced some materials, I think, last year or the year before that were circulated on campus. They're available at queenslaw.queens.ca on the Queen's Legal Aid site that basically detail the parameters of what makes a party and what makes essentially, what will lead you into violating these by-laws.

24:42 BC: Yes, the summary of all of this information is up on our website, and we have produced those materials under the heading of "Save the Party, Skip the Ticket." One of my messages about that is that it's not just a ticket that you're skipping, it's the summons to court now that you are skipping and the larger fine that can come with it.

25:01 MS: Right.

25:02 BC: I think I would like to just remind people that although these are charges that can have significant effects and are a pain to deal with and they take the time to go to court, at the same time we're still talking about by-law offences and Provincial Offences. So the good news in all of this for a person that gets charged is you're not going to get a criminal record for this.

25:25 MS: Okay.

25:26 BC: You can get a criminal record for other things such as obstruct police, if you were to give a police officer a false name when you are being arrested or if you try to run away. But generally speaking, if you find yourself in a situation where you're charged, if you cooperate at that stage, the worst that you're looking at is this fine and the consequences that come along with it. But that doesn't involve a criminal record. Another aspect of the University District Safety Initiative that many students are concerned about and here it specifically is students is that part of the initiative is in addition to the summons to court, the offences are reported to Queen's University, who can then have a conduct investigation as to whether or not you've committed some sort of non-academic offence that can be disciplined. The good news is that we have not seen Queen's vigorously coming after people for this.

26:20 BC: In some situations, depending on the notoriety of the party and of the scope of the harm to the community that may have been done, they have launched investigations, but typically those are resolved with either the student agreeing not to host a similar party or not to engage in such conduct again in the future or even simply writing a letter of apology to the school. So it's not like anybody needs to worry that they will lose their degree, although some people are concerned that it can be reported to the university as well.

26:53 MS: Right. And the university has its own suite of powers. We can't guarantee what would happen if the university engages in a conduct review.

27:01 BC: No, no, we can't. And again, that's not something that I think anybody would want to go through, but it's not like the university has been coming with over-the-top sanctions for individuals that have been found to be in violation of the University District Safety Initiative.

27:14 MS: Okay, so where can students go if they need help with these issues?

27:17 BC: So this is one of the things that Queen's Legal Aid, specifically does. We have a number of students down there that work under the supervision of lawyers, and Provincial Offences and by-laws are squarely within the power for students to represent individual. We have a great deal of experience in doing so.

27:37 MS: Great. Thank you very much, Blair.

27:39 BC: It's been a pleasure.

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27:43 MS: Thanks to Blair Crew. You can find lots more information about Queen's Legal Aid, including some resources on parties and the law at queenslawclinics.ca. It's also a great resource for information on all of Queen's Law's clinics, including business law, family law, Elder law and the nation's only Prison Law Clinic. If you're interested in on our rights as citizens and the use of power in Canada, you can take a more profound look at the subject in Law 205-705: Public and Constitutional Law. You can learn more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Thanks for listening.

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I'm Matt Shepherd. The Jarvis case is back in the news -- a court case about a teacher filming his students for sexual purposes, which made it all the way up to the Supreme Court -- which makes this a timely moment to talk about that case, and its broader implications.

Lisa Kelly is a criminal law scholar, examining privacy issues among other things. She recently published a paper on the Jarvis case... and some of the issues that the Supreme Court decision raises about surveillance and privacy in general. She joins us, with Lisa Kerr, also a criminal law professor at Queen's Law, and the developer and instructor of the criminal law module in Law 201/701, Introduction to Canadian Law.

Her paper is here: A Tale of Two Cameras - Sex and Surveillance in R v. Jarvis

If you enjoy the podcast, take a moment to subscribe! All of our courses are rooted in legal research, but you can learn more from Lisa Kerr about Criminal Law in Canada through her module in Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton.

Transcript:

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00:04 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd. The Jarvis case is back in the news, a court case about a teacher, filming his students for sexual purposes, which made it all the way up to the Supreme Court, which makes this a timely moment to talk about that case, and it's broader implications. We're fortunate to have Lisa Kelly as part of the Faculty of Law here at Queen's. She's a criminal law scholar examining privacy issues among other things. She recently published a paper on the Jarvis case, and some of the issues that the Supreme Court decision raises about surveillance and privacy in general.

00:40 MS: She joins us with Lisa Kerr, also a Criminal Law professor at Queen's Law, and the developer and instructor of the Criminal Law module and 'Law 201/701: Introduction to Canadian Law'. Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca. Lisa Kelly, you've recently written something in Criminal Reports about Jarvis and the Supreme Court and, can you can tell us a bit what the paper's about?

01:14 Lisa Kelly: Sure. So Jarvis was a case that was closely followed by a lot of different groups, by feminists, by people who work in schools, people who attend schools... And that's really because of the facts of the case. So, we have all most of us, hopefully, fortunately have at one time been students in a school, and that's the context from which this comes out. And Mr. Jarvis was an English school teacher in London, Ontario, and, he was using a pen camera. So we all know about the James Bond type era when you would be a spy, and the spy would have a pen camera, but he was using it for what I think we can all reasonably agree was a sexual purpose that we do not expect of, and that we strongly condemn of, a teacher to do to their students.

02:17 MS: Right. Specifically, he was...

02:21 LK: So he was going around the school, in the classroom and the corridors and the cafeteria, and he was surreptitiously filming students, and in particular, female students. He was zooming in on their breast area, and pretty clearly doing so for a sexual purpose. I just wanna note that at the trial level, which was arguably quite a strange outcome, the trial judge was not convinced beyond a reasonable doubt that Mr. Jarvis was filming for a sexual purpose, and the crime that he was charged with, which is voyeurism... It's a relatively new crime in our criminal code that requires that the filming or observation be done for a "sexual purpose."

03:15 LK: He was not... The trial judge wasn't convinced beyond a reasonable doubt. As I say, a rather strange ruling, because the filming did clearly involve zooming in on areas that we would generally in society agree were sexually motivated. So, the case then went up to the Ontario Court of Appeal, and at the Ontario Court of Appeal, they easily overturned that issue, finding that there was a sexual purpose, but, they held that the Crown hadn't proved in another part of the crime, and that was that in order to convict someone of voyeurism, you need to have had a reasonable expectation of privacy against that surveillance.

04:05 MS: Right. And, there's a couple levels of complication there. One is, is a school in and of itself, reasonable expectation of privacy. It's kind of a quasi-public space.

04:15 LK: Yeah.

04:16 MS: And there's also the fact that as you talk about substantially in your paper, the students were already being filmed.

04:22 LK: Absolutely. So this ends up being a really key point, and the Ontario Court of Appeal ends up coming down on the side that they did not enjoy a reasonable expectation of privacy vis-a-vis this filming, for precisely the reason you're saying, right? Public schools are public in all kinds of senses, they're public in the sense that students are compelled by public law to go to them, and they are also today in 2020, highly surveilled places. Students were on notice that they were subject to essentially 24 hour... They're not at school hopefully for 24 hours, but that there were 24 hour surveillance cameras operating then.

05:05 LK: And, a big question that then ended up going up to the Supreme Court, was, does the public nature of the school, including the presence of the surveillance cameras, does that then mean that Mr. Jarvis' surreptitious pen filming wasn't a violation of their privacy? Right? Have they already surrendered their privacy because they're in this public space, they see cameras all around, they're already being filmed. This was happening in corridors, in classrooms, and that was a question that was alive right to the Supreme Court.

05:47 MS: This is one of those spaces where academia is interesting, 'cause the common sense approach is obviously these are completely different things for entirely different purposes and, on its face it looks like it's a pretty easy division to make.

06:00 LK: Definitely. I think if we went out and pulled people on the street or in our communities, I think people... Hence why I think the Jarvis case, both its facts, but also these arguably pretty strange legal findings, both at the trial level and the Ontario Court of Appeal finding, I think that's in part why the case generated a lot of interest, because it seemed really antithetical to common sense reasoning about student life, teacher life, and what should be going on. I think one of the interesting things as you're saying, for us who are legal academics or thinking about these kinds of ideas is that, ideas of privacy and how we define privacy are actually incredibly complicated. And, I think for the Ontario Court of Appeal, there was a sense that what we should be primarily concerned about is the space, is the place when you enter into a particular place, have you kind of surrendered privacy that you might enjoy for instance when you're at home?

07:12 LK: And that is one that is that type of reasoning about privacy has a long lineage in law. We historically tended to be concerned primarily about place, where are you? But certainly, since the charter countervailing ideas of privacy as traveling with the individual, and hence being really about reasonable expectations, which is the language in the voyeurism provision, that suggested a slightly more nuanced understanding of privacy, in that I may well be in a very public place, but there may be types of conduct that I still am going to be able to assert a privacy interest against.

07:56 MS: Right.

07:57 LK: And I think those complexities and why the idea of privacy is so complicated, it takes kind of some digging down. And I think that's why you saw some divisions on in the court.

08:09 Lisa Kerr: But we do get the return or the arrival in this case of common sense from the Supreme Court of Canada's decision, right?

08:16 LK: Yeah, I think so. I think here, the outcome in Jarvis by the Supreme Court was that these students did indeed enjoy a reasonable expectation of privacy against a teacher surreptitiously recording them for a sexual purpose. And hence, this could indeed qualify as voyeurism prohibited by law. But one of the interesting things that I really focused on in my piece is that the Court reaches that conclusion about the student's privacy from Mr Jarvis' pen camera by contrasting it with their lack of privacy vis-a-vis the surveillance cameras. And that's why I called the piece a Tale of Two Cameras, because this is really about how do we, in a hyper-surveilled society understand this kind of privacy that zooms in and out, depending on whose camera is viewing us and for what purpose.

09:21 MS: Right.

09:22 LK: And that's complicated, because we are all being surveilled and are all arguably on camera many times in a day. When do we get to say, "I am private from that camera, but not the other." And one of the things I was concerned about is that Mr. Jarvis's, as Matt has said for really all of us, I think, in the general public, Mr. Jarvis's use of his pen camera as a person in a position of trust at a school is fairly easily... It's pretty easy to see that that's objectionable, and that it does seem to violate ideas of privacy that we have. And yet on the other side, the surveillance cameras at the school were viewed by the courts, and arguably, I would say by the parties and the interveners as necessarily a good thing.

10:17 LK: The court talked about them as safety promoting and didn't see what I think are some of the darker sides of those sets of cameras as well. And what I mean by that is that students today are attending schools where they may have police in school, they are subject to really pretty rigorous discipline policies. And the presence of cameras, yes, can be protective of some, but it can also be used as evidence in future criminal proceedings. Instances that may once have been handled by school authorities alone are increasingly kicked into the criminal side. And the politics about those cameras, I think got last in the very common sense vilification of Mr. Jarvis's pen camera.

11:04 LK: You write in the piece that, "My goal here is to trouble the easy distinction the court drew between sex and surveillance." That seems to really be the heart of it.

11:14 LK: Yeah, I think so. In this, particularly in the Me Too moment, but certainly long preceding it as well, I think people are, for lots of really good and important reasons, are really concerned about sexual wrongdoing, sexual invasions of privacy, the effects that that has on people, the effects that that has on people's ability to participate fully in public, including at a public school. But I think exceptionalizing sex, in this case, exceptionalizing Mr. Jarvis's pen camera can have also some costs and some downsides. And one of the downsides is that when we exceptionalize sexual invasions of privacy, as our voyeurism provision does, by requiring a sexual purpose, we may legitimate, or at the very least neutralize other forms of surveillance, other forms of observation that can also have really significant social consequences, in particular, for students of color, for students with disabilities, some students who may be involved in altercations at school or otherwise, and who may find themselves disproportionately affected by school surveillance and discipline regimes.

12:44 LK: And these are really complicated sets of questions, but I think singling out sex as the foundational form of wrongdoing that we are solely or primarily concerned with can background some of these other... And that was a really key motivator for me in the piece.

12:53 LK: Right. And then part of the history that you describe is that pointing out that these surveillance cameras aren't always serving an innocuous purpose or a good purpose, just safety, making sure that schools are places that students can go to without having to worry about violence and so on. There's other things that these surveillance cameras may be doing, and you talk about the sort of rise of criminal law enforcement that goes on within schools and by teachers, which is gonna be aided in at least some cases by the footage gathered with these other cameras.

13:41 LK: Yeah, so that's absolutely right. And I think that is a factor and a piece that needs to be part of our calculus when we are thinking about these different kinds of regimes, over the last four decades. And I'm working now on a project, a shirt-funded project on policing in schools. Over the last four decades, there has been an exponential rise in attention to violence and safety in schools. And again, there have been very important reasons for this, and in our current teachers strike right now in Ontario school safety, including staff safety is actually a key part of the dispute and what sort of protections are available for staff and students, so it is an ongoing issue and concern. But one of the tactics that has been used is that there has been a turn in many contexts toward policing in schools and toward a sense that schools are dangerous places and the source of that danger are students themselves and that we need, not only school discipline policies but we need sometimes to have those actions moved into the criminal system and have a criminal response. And as you're saying, Lisa, surveillance footage can indeed be important for safety or finding out what happened in a particular instance, but it can be used as evidence in a criminal trial, it can be used to get a plea bargain.

15:22 LK: And we have to ask, and there's pretty clear evidence on this. What students, which students what kind of wrong doing is most likely to attract a more punitive response. Again, disproportionate impacts on students of color, indigenous students in some contexts, also in some contexts, clearly, students with disabilities. And that's the the overhang or the law and politics piece that we have to be aware of when the court as Lisa said, just uses the fairly, but now simple language that these are just "safety-promoting cameras". There's a lot going on in schools with these cameras with the larger context of how we understand schools.

16:09 MS: Hey, it's Matt. As spring comes around the corner, May isn't that far away, which makes this a great time to consider signing up for the certificate in law. It's the only online certificate of its kind offered by a law school in Canada. If you take just one course a semester online, starting this May, you'll have the certificate in law from Queen's University, one of the best law schools in the country, by the end of 2021. We offer courses in aboriginal law, constitutional law, intellectual property, international law and more. No matter what you're doing in life, you can get a deeper, richer understanding of how the law affects you as a citizen and as a professional, through our program. Find out more at takelaw.ca.

16:58 LK: It's a fascinating article and it's part of why I think our jobs as academics or as law professors who get to comment on cases can be kind of a cool place to be sometimes. You're saying here, yes, the Supreme Court of Canada made the right decision, right? When you're talking about the particular outcome of the case. Conviction here, is appropriate for this teacher. But you're also saying Let's dig a little deeper into some of the consequences of what the court is saying. I'm curious, were there any interveners in front of the Supreme Court of Canada making the arguments that you're making today, or in this piece?

17:38 LK: Not specifically, no. Some interveners did comment on student privacy a little bit vis-a-vis discipline policies. But no one, no intervener... And I've reviewed all the intervener facta, no one made the specific observation that perhaps the best line of reasoning here, isn't to tie student privacy vis-à-vis Mr. Jarvis camera to an opposing legitimate public survey lens camera. That's essentially kind of the analytical move at the heart of this case is that a series of public-private distinctions. And the privacy and the expectation of privacy, vis-a-vis Mr. Jarvis camera is built on and grows out in part the legitimate publicity of surveillance cameras in schools, and no one certainly before the Supreme court made the argument in precisely those terms.

18:42 LK: And I would just go back, actually, I think another... This one was less of an interest kind of in my paper, but Steve Coglan of Dowhosi has written this in a short comment that he gave on Jarvis and that's just that... Another thing you did see the court struggling with, about the privacy question, vis-a-vis Mr. Jarvis camera, is that the court ends in this fairly dissatisfied multifactorial analysis of what privacy looks like, what reasonable expectation of privacy looks like in a school context. And they make it very specific to the facts of this case that students enjoy a reasonable expectation of privacy from being surreptitiously filmed for sexual purposes, essentially by a teacher.

19:33 MS: Right.

19:33 LK: How much guidance that gives you in future cases? What if it had involved students filming one another, "what if they were right off school property, what if they were at the shopping mall, and Mr. Jarvis were there? And I'm not necessarily criticizing them for that I think it's difficult to draw out a taxonomy of what privacy looks like, but I think it actually points to... And this was the point the Criminal Lawyers' Association made in their facta. It points to a larger set of questions and problems, maybe with the voyeurism offense itself, because these questions about when one enjoys a reasonable expectation of privacy vis-a-vis filming, will arguably end up being deeply contextual, and tend to run on a case-by-case basis, and that always raises a little bit of red flags for us in terms of people having knowledge about when they are potentially breaking the law versus when they are just out and about in the world using their iPhones.

20:42 MS: Well, in a way you've got here a case that almost has the sharpest possible points of contrast, where you've got someone in a position of authority, taking secret videos of people, for obviously prurient interests. And at the other end, you've got surveillance, which is ostensibly and as you've raised this, can be questioned. But, ostensibly it's to protect students from violence in schools. And then there's this massive gray area in the middle of surveillance in a store to prevent shoplifting. Well that's not quite as far out on the side as surveillance in a school to protect students from violence, or a student filming another student for terrible reasons is not as far out there as a teacher in a position of authority. So, you've got almost an interesting spread here where all of the gray space seems to be in the middle.

21:31 LK: I think that's right. I think that's absolutely right, and I think... I certainly wasn't making the case for instance that a Supreme Court or anyone is ever going to say that school surveillance cameras are "a violation of students' privacy." I think that ship sailed a long time ago, because the Supreme Court has recognized all sorts of ways that students do surrender some of their reasonable expectation of privacy when they come into school. And one could have debates about where they have drawn those lines, but I think they have clearly been drawn for instance when it comes to searches at school, students enjoy lesser protections when they are searched at school, than they would enjoy in other contexts because of the nature of the school.

22:16 LK: So, that certainly is true, but I think when it comes to as you said, these questions about sexual filming in particular for the purpose of voyeurism, this is a real extreme case. Right? It's someone in... As you said, it's someone in a position of trust, they are with younger people. These are all people who are minors. There are all these factors I think that made this a case where there was a lot of potential will to find that this was a violation of privacy. But where one will draw that line in future I think is extremely difficult to tell. And I don't think Jarvis gives us a lot of specific guidance on that.

23:03 MS: Right. There's so much wrapped up in intent and use. But what if someone is using the school security footage for creepy purposes, where does that... But there's... But what is interesting about this stuff is that it just leads you to so many interesting places.

23:16 LK: Absolutely. And they made some point about that. How could it be used? The fact that individual teachers couldn't gain access to the school security footage, but what if they could have, and when with the school surveillance camera be potentially transformed into a form of voyeurism.

23:35 MS: Right.

23:35 LK: Not incredibly clear here, and I think the court and others do try to make these very fast, hard, easy distinctions between the two sets of cameras, but not entirely clear that that would always hold, even in the context of sex, but definitely not in terms of these larger social context questions that I'm interested in.

23:55 MS: If people wanna read this paper Lisa, where can they find it?

23:58 LK: Yeah. So this piece is published in the Criminal Reports. They're actually... The Editor-in-Chief is actually a colleague of ours, Don Stuart here at Queen's Law School, and you can find this piece on my academia.edu page: Lisa Kelly, and the name of the piece, I think I've mentioned it before, but, it is A Tale of Two Cameras, sex and surveillance in R v. Jarvis. Great. Lisa and Lisa, thank you both very much.

24:27 LK: Thank you Matt.

24:27 LK: Thank you.

24:31 MS: Thanks to Lisas Kelly and Kerr. Criminal Law includes issues that resonate to the deepest principles of freedom and justice in Canada, and you can learn more about it in the Criminal Law module of Law 201/701: Introduction to Canadian Law. If you're interested in our rights as citizens, and the use of power in Canada, you can take a more profound look at the subject in Law 205/705: Public and Constitutional Law. You can learn more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Hodinoshoni territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Thanks for listening.

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Do fines make a difference in people's behaviour? This simple question leads to a labyrinth of research, the intersection of law and economics, and the importance of replication in the social sciences in a great conversation with the author of our Constitutional module in Law 201/701, Introduction to Canadian Law, Cherie Metcalf.

If you enjoy the podcast, take a moment to subscribe! All of our courses are rooted in legal research, but you can learn more from Cherie about Constitutional Law in Canada through her module in Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd and sometimes I run late. Sometimes I'm punished for running late: Bad marks, library fines, all kinds of things. We've all been late for things and most of us have been punished for it in one way or another. And that common life experience is our gateway into an amazing conversation about legal research with the creator of the constitutional law module in Law 201/701, Cherie Metcalf. Cherie is both an economist and a legal academic, and she's been looking into a kind of legendary legal study that examined the consequences of fines from lateness. The original study discovered something surprising. But when Cherie and her team looked at it, applying the principle of replication to a legendary piece of academic literature, the results were even more surprising.

00:57 MS: Legal research is fascinating stuff and it really does affect all of our lives. Keep listening to find out how and why. This podcast is not legal advice and is being presented for informational purposes only. Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:29 MS: Most law students know faculty as teachers because from the first day of law school, you're in the classroom teaching, but they don't have as much exposure, I think, to faculty as researchers, which is actually on paper, when you look at the allocation of time, it's actually the bulk of your job.

01:45 Cherie Metcalf: Yeah, yeah. Research is a really big part of what we do at the faculty and, you know, most faculty doing research is a big part of the reason why they want to be legal academics.

01:58 MS: Right.

01:58 CM: So yeah.

02:00 MS: And your research in particular is inter-disciplinary. You came to law from an economics background.

02:05 CM: Yeah, that's right. So I... It was a little bit unusual because I actually did my PhD in economics first before I ever went to law school at all, just sort of bizarre personal circumstances but I ended up doing both my JD and Master's in law after having gone all the way through advanced training in economics.

02:27 MS: Right. And law and economics is a thing. Like, this is...

02:30 CM: Oh, yes.

02:30 MS: Sort of a sub-discipline of law is the research into law and economics intersecting.

02:34 CM: Yeah, yeah. So using sort of economic tools and theory to understand how law works and how it influences the way individuals make choices and to use the statistical tools that economists are familiar with to try and study problems about the law and how it works, this is a very common field of study in legal academia. It's... Probably I would say it's a little bit more prevalent in the United States, but even in Canada here, it's definitely a well-established research perspective in legal research.

03:13 MS: So I wanted to talk to you about what you're working on right now 'cause it's interesting for a number of reasons. First of all, it's just interesting. But second, it is... It talks about how we validate prior research and it also deals with something that has had... It's the kind... The study that this starts from is the kind of study that actually gets talked about and does have an influence in the end and sort of public opinion and policymaking. So what project are you just wrapping up right now?

03:41 CM: Right. So this is one of the research projects that I'm working on, and I'm working on it with some other colleagues at other universities, but it is trying to see if we could replicate the results from this study that you mentioned, this very famous study by Uri Gneezy and Aldo Rustichini called A Fine is a Price. So the initial study is really well-known. It was a study that was gonna investigate how fines work to deter sort of bad behavior and so this was what you referred to as a randomized field trial. So that means essentially they had... They did it in daycares in Israel. So they had this sort of sample of 10 different daycares that they had chosen because they thought they were pretty similar. They were in similar areas and then what they did was they sort of observed them for a period and then they introduced a fine in some but not all of them and then they kept on observing and they were measuring, well, how many parents were late, and then they took the fine away and kept observing.

04:51 MS: Right. So they were trying to see if...

04:52 CM: Yeah. Yeah, they were trying to... So that's a... It's called a... The reason why these kind of trials are so effective is because you're randomly varying this treatment, putting a fine in place and that actually allows you to make a statement about what the causal effect of the fine is, right?

05:10 MS: Right.

05:10 CM: You can isolate the effect of the fine and be confident that that's what's really driving changes in behavior.

05:17 MS: And I think one of the reasons that this initial study got so much interest is because the results were actually counterintuitive.

05:24 CM: Yeah, the result was really surprising. So they expected to sort of study how the fine would deter behavior and how effective it was, and instead, what happened was they put this fine in place and the parents started coming late more often. So they were a bit surprised about that, but then they sort of came up with two different theories about why that might be the case. So one was, well, maybe what's happening here is the fine is kind of signaling to people, okay, the consequences that you might have been afraid of, you might have been afraid something really bad was gonna happen, like your kid would get kicked out, and the fine tells you, well, that's not gonna happen. Okay? So now you're not as worried and now you might come late more often.

06:00 MS: Okay.

06:00 CM: That's one theory. And the other theory which I think has been maybe more influential was that before the fine was there, people really thought about this in a social way. It was really more about social norms and imposing on the daycare workers and it was more about social relations. And as soon as you introduced the fine, it changed the extra time and care to a commodity and then people thought about it differently and it just became... So that's the title of their paper, "A Fine is a Price."

06:37 MS: Right.

06:38 CM: And you can just decide how much extra daycare you wanna buy at the late fee. [chuckle]

06:42 MS: Right, okay.

06:43 CM: Yeah. So that was their other theory that is really influential because it's a lot about how, for empirical legal scholars, it's about how law interacts with social norms that control people's behavior.

06:55 MS: Right. And so they basically put these theories forward and that was kind of the end of that.

07:02 CM: Yeah, you know there's a little bit of follow-up after, and some people said, "Well, we think there's something a little strange about this." And they did some follow-up, but overall, that was sort of it, and the article has been really influential. It's been cited a ton, and it's a really interesting and intuitive theory, right?

07:25 MS: Right. So why... I guess we'd start with your work. Why is replication important?

07:33 CM: So this is really related to sort of general questions about research in the social science where people have started to question, "Well, how much weight should we put on the results, especially sort of surprising results, from one or two studies? How confident can we be that we should really be putting a lot of weight on those?". And so part of this is people have tried to replicate influential studies, and there's been a pretty mixed success rate, especially in sort of social psychology but even in economics and other sort of social science disciplines. People have become a lot more interested in thinking about replication as a way to check and see, "Well, how much weight and how sort of robust are these results?"

08:25 MS: Right. And I'm sort of familiar with the notion of replication from the hard sciences. Like someone says, "Hey, water boils at 100 degrees, we should check that." And a few other people do. "Yep, absolutely. That's what's happening." It seems like you're in a more difficult space to replicate things because the conditions are going to be different.

08:46 CM: Yeah. I think trying to figure out exactly how you would do sort of meaningful replication in social sciences, I think it can be a bit more challenging and especially for sort of empirical legal scholars because of the fact that the way that law operates. It is sort of highly contextual. So we have different laws, different... It's very hard to control sort of all the background factors that we think might be relevant even if we're using something like an experimental design in a field trial.

09:19 MS: Right.

09:19 CM: Yeah.

09:20 MS: So you and a number of colleagues set out to replicate "A Fine is a Price" just to see what happens?

09:25 CM: Yeah. So... I mean our project was part of a larger conference on replication that was held at Claremont McKenna College back in April. And so all the papers at that conference were looking at replicating different studies in empirical legal studies. And yeah. So, ours is looking at a couple of questions. So one is, it's taking more of a... In the paper, we talk about it as more of a robustness approach. So we're really trying to see if we can get the same result and also just sort of include some extra conditions to see if we could pin down which of their theories might be more influential from the original and also to think about whether the mechanism might operate differently in different settings. Yeah. And we're using a different, slightly different methodology. So it's not a field trial. So it's also kind of looking to see, "Well, how robust is this to different kinds of common strategies people use in empirical legal studies?"

10:31 MS: So the burning question is what happened?

10:32 CM: Yeah. Well, so for our study, we essentially use an experimental survey. So we sort of set this all up like you're at a daycare and here's how it works and how late would you be and... Right? So... And then we introduce the fine. So, you know, we kind of set it up so that it will mock the conditions in the original. And so we actually... We don't get the same result. We get the result that you would probably expect in that when we introduced the fine, people say they would be less late. And when we take it away again, people go back to being sort of the same lateness that they originally said they would be.

11:16 MS: Okay, so the intuitive response.

11:19 CM: It's the... Yeah. So it's more the sort of... It's more the intuitive response and also sort of maybe more of the kind of rational choice story about how fines work.

11:28 MS: Right. So is this... Is this a result of... Because you've changed a few things.

11:34 CM: Yeah, we changed a few things.

11:36 MS: So is there kind of a real world to survey differential that makes a difference here?

11:41 CM: So, you know that's a really good question, right? So one of the things people do say about surveys versus, say, a field trial is "Well, it can be different what people think. They would do versus what they would actually do." Okay?

11:54 MS: Yeah.

11:55 CM: I mean, I think that's less of a problem for us here because in some ways, these theories that the original authors put forward to explain their results, are really about ways the fine should change people's perceptions of the context. And the reason why they didn't change when the fine was removed is mostly because people really changed the way they thought about the problem. So I think in that kind of a setting, that's the theory you're trying to test that this difference between what you think you would do and what you might actually do when you're late and your car's parked far away or whatever, it's less of a sort of serious concern that the research method we've got doesn't match.

12:31 MS: Okay.

12:31 CM: Yeah.

12:31 MS: And you said you were working with colleagues on this?

12:42 CM: Mm-hmm.

12:42 MS: How does that happen? How do you find and connect with people that you wanna do these projects with?

12:47 CM: Yeah. So some of them I had started working with on a different project that uses lab experiments to look at the incentive effects of tort law, and I had met one of them at a conference and seeing their presentations and talked to them, and then another one I knew from different conferences, and... So a lot of it is you just meet people when you're sort of out and about talking about your research. And yeah. Then you can start collaborations, and...

13:19 MS: And what's the time frame for this kind of work? How long do these pieces of research usually take?

13:25 CM: I mean, when you're doing empirical work, it can tend to take a bit longer. So it's, you know, you... And also, this is work because it's a survey. It uses human subjects, right? So you have a process where you have to design the surveys and you have to get ethics approval and then you have to just sort of pilot it to make sure that you've got what you want and then you administer the thing. You can get all the data together and you have to analyze it, and so it takes a while. Yeah. Like it would be... You know it's over a year that I've been working on this project and it's still not totally finished. So...

14:02 MS: And what is the end game for this kind of research? What is it toward?

14:07 CM: Yeah.

14:08 MS: Is it publication in a journal?

14:09 CM: Oh, yes. Yeah, yeah. So you would definitely publish it in a journal, and the piece that we're doing was part of a conference, but the idea is it would be part of a special issue of a journal. So, yeah, for sure, we're hoping to publish the piece, and then it sort of becomes part of the larger body of work. You know. And... So our study, we did the replication of the daycare, but we also had another scenario where we looked at this same mechanism in a tax compliance setting, right?

14:42 MS: Okay.

14:43 CM: So then it sort of fits into different literatures and we can kind of get a sense of when, if this is a real effect, when might it show up and what conditions might trigger it and, right...

14:56 MS: So the tax compliance part of this, that adds to what you're describing as the robustness of the project.

15:00 CM: Exactly. Yeah, yeah. So for example, one of the things we were doing was trying to use our survey questions to see if we could figure out whether the fine operated by crowding out social norms or by just signaling consequences about enforcement. And it turns out that actually our results show that this is different across our two settings. So, in the daycare setting, we did see some changes in the way people thought about the daycare workers that suggested, "Yeah, it did kind of crowd out people's concern about making them wait." But in the tax setting, we didn't get any sort of crowding out about imposing on others or undermining tax morale by sort of tax cheating. But we did see that people changed their perceptions in terms of their fear of consequences. So you know that kind of tells us it's important to think about what setting we're in because these kinds of effects may work differently in different settings.

16:09 MS: And I guess this is the point where you can just sort of start theorizing of, "You know, I have a personal relationship with my daycare worker, but I don't have a personal relationship with an abstract tax person, somewhere doing tax things." But is that sort of a danger of this kind of thing is that you can easily jump into why you think something's happening?

16:29 CM: I mean I don't think it's necessarily a danger. I mean I think what's the sort of danger is when we take one or two studies and put too much weight on them and then build up a whole sort of theory based on one or two data points, right?

16:47 MS: Right.

16:47 CM: Because each study essentially really is like one observation.

16:51 MS: And that brings us back to replication.

16:52 CM: Yeah. Exactly, right? So I think, you know, one of the things that replication hopefully does and the sort of focus on it, is to remind us that any sort of empirical work is... You kind of... I think you best think of it as sort of contributions to a larger conversation where in order to really understand what's happening, we need a lot of different people to contribute and we have to sort of look at the whole landscape and not put sort of too much weight on any particular result, but maybe...

17:27 MS: But how...

17:27 CM: Especially if it's surprising.

17:29 MS: How do you know when to stop?

17:30 CM: How do you know when to stop? Well, you never stop. That's the beauty of being a legal academic. [laughter]

17:34 MS: Right. But I mean, theoretically... Like someone could try to take what you've done and make it more robust.

17:38 CM: Yes.

17:40 MS: Or try a different kind of thing.

17:40 CM: Yeah, yeah. I mean, you know obviously there's a certain amount of value added to doing extra studies. So you know as a researcher and as research communities, you have to decide where the best place is to spend your time. Finding tiny little improvements or things that don't change things a lot, you know that stops being worth spending the year on. So I think that's part of once you get a sufficient body of knowledge built up and you think you have a fairly robust understanding of the way that some mechanism works in different settings and contexts, then you can move on and look at something else.

18:20 MS: But in the research community, is your getting different results from the original study kind of a signal that we need to do more research?

18:28 CM: Maybe. Yeah. [chuckle] I don't know. I guess... You know like we'll see. Maybe people will think, "Oh, it's more about, you know, here it just shows that it was a different response, one we would expect, because maybe when you ask people and the fine's in front of them and it's all sort of compressed in time, it just was really noticeable. And so, of course, that's what they focused on." But in the real world, it might not be like that. So, you know, I think one of the things the study shows and the fact there's different results shows is that if we wanna be confident about the way a particular legal policy would work, say, we may need to have different kinds of research about it, right?

19:11 MS: And it comes down... I mean as you were saying before, it comes down to the end, it's people making decisions.

19:15 CM: It's people making decisions, right? And so I think, you know, this is part of the benefit of interdisciplinary research in the law is ultimately we're concerned with the way that law works in practice, right? And you know we have different theoretical perspectives in thinking about what do we think law is doing, how do we think people respond, how do we think people behave in reaction to it, and it's good for us to sort of get out there and have some sense of how those questions are answered in the practical world so that we can, as legal academics, can keep thinking about law in a way that makes sense and resonates with the people who are affected by it.

20:03 MS: And I think that's an important thing to bring up is this isn't stuff that just kind of exists in this rarefied theoretical space. It translates down into people making decisions about policy and people making decisions about what the law should be at the end of the day.

20:17 CM: Sure, right? So, you know, examples from this research, you could think, "Where is an application where we might think about this being interesting or relevant?" Well, let's say that we're trying to find ways to get people to curb their water use. How should we go about doing that? We could think, well, actually maybe we really just wanna appeal to people's social norms and values, or... And sort of just emphasize this is really important because it's a scarce resource and we need to do that and your neighbors are doing it. You're using more than your neighbors. Or maybe we should put in place fines or a price for using water so that it's not free anymore. And so, research like this goes to the question of, "Well, what are those different policies gonna do?" Like, which one is gonna be more effective in terms of actually reducing water use if that's what we wanna achieve?

21:15 MS: What's actually next for this paper? It's the conferences next?

21:19 CM: So, I'm going to the Conference on Empirical Legal Studies in just over a week. And so this project is in their poster session. So they have a poster session as part of their conference and everybody at the conference gets to come around and see your posters and you can talk about your research. It's actually a really fun session. I know a lot of people are in that session, so I'm looking forward to doing that 'cause I'll see what people think and hear people's feedback and...

21:49 MS: Is this kind of like a science fair?

21:51 CM: It's... Well, [chuckle] I guess it's like a little mini science fair. It's pretty small. I mean there's not that many people who would be in the poster session. But yeah, it's a little bit like that. Yeah. Yeah. It's actually... I think it's... Certainly in the sciences, using posters to present your research, is a way more common kind of thing, but it's common in empirical conferences, in social sciences too.

22:14 MS: So the outcomes of this is there's the conference. There's potential publication and then is that... When do you stop research? Like what is sort of the stopping point?

22:23 CM: What's the stopping point?

22:24 MS: Yeah.

22:26 CM: You know, I mean sometimes you can think about extending beyond the settings that you're doing or, you know... So ways you can think about extending this project could be to think about, "Well, is it sort of interesting enough that we should maybe try doing a field trial?" So going beyond this methodology to see, "Okay, well is it actually something about the survey approach we used here that explains the fact we got a different result? What would happen if we did it in a different setting?" You know again, it's kind of like a cost-benefit thing a little bit, because it depends what else you're involved with and how much time you have for research and whether there's other projects that you think... You know there's... It's more beneficial to start something new in terms of doing it yourself as opposed to working on the extra refinement or something that's just an extension of other research you've already done.

23:22 MS: Are your colleagues on this, are they also all law and economics researchers, or...

23:30 CM: So, one of them is actually just an economist. He's a straight-up economist. So he doesn't know anything about the law, so he has to let us do that part. Another one is... Yeah, I think he... You know he definitely does sort of law and social science, law and economics. I don't, he's not maybe not quite as technical, so his doctoral research was in law, not another discipline and then another one is... You know, she has pretty extensive training in economics but she's maybe a little bit more on the law side. So it's a good mix.

23:58 MS: Okay.

24:00 CM: Yeah.

24:00 MS: Thank you very much, Cherie.

24:01 CM: You are welcome Matt.

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24:04 MS: Thanks to Cherie Metcalf. If you're studying, well, anything at all really, talk to your professor about their research. You'll be glad you did. Cherie is the Constitutional Law module author and instructor from LAW 201/701: Introduction to Canadian Law. You can also take our deep dive into Constitutional Law with LAW 205/705: Public & Constitutional Law which gives you a full course on division of powers, citizens rights, how our judiciary functions, and more taught by Jonathan Shanks. You can learn more about it at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton who's also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.

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We all know the deal: kids are good, Santa gives them presents. But is this a contract? And if it is... who's contracting with who? Law 201/701 and 204/704 course developer, and contracts expert, Peter Kissick weighs in on this holiday tradition.

Content warning: not for children who don't know certain things about Santa yet!

If you're interested in contracts and contract law, we have a great primer in Law 201/701: Introduction to Canadian Law. Peter also brushes up against contracts in his Corporate Law module in that course. For the deep dive, follow Peter down the business-law rabbit hole with Law 204/704: Corporate Law.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd. A while back I wrote Peter Kissick an email with the subject line, "Let's ruin the holidays forever." Peter is the creator and instructor of our corporate law course, law 204/704 and the related module in law 201/701 introduction to Canadian law. He's also a fun guy to explore some weird territory with. What I wanted to talk about with Peter was Santa Claus. Santa is not part of everyone's holiday tradition but is a cultural figure at this point. And even people that don't have a holiday tradition that involve Santa Claus are probably aware of the deal, be good and get toys. We threw that idea through a legal lens to see what comes out the other side. This podcast is not legal advice and is being presented for informational purposes only. It's also for audiences that have come to a certain understanding about Santa Claus. So it might not be for younger listeners. Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find it more at takelaw.ca.

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01:23 MS: Peter, the holidays are for everyone, we know that. Everyone, everyone's got their own takes on the holiday, but today we're gonna be looking at a particular angle American phenomenon, which is Santa Claus. And the thing I'm curious about, I wanna ask you about is, I've grown up under the understanding that there's a promise, there's a compact, there's an idea where if you are a good boy or a good girl, you can write a letter to Santa and Santa will bring you gifts, and not knowing that much about the law, but knowing that there's this whole structure of things called contracts that you talk about in your corporate law course. What's going on? Spoiler Alert, if you have any small children maybe move them away from the computer. We might be discussing things about Santa that they may not be aware of yet, but putting that aside, let's assume that there's a jolly old elf and he lives in the north pole, and he will give you gifts if you're a good little boy or a girl, and you write him a letter and etcetera, etcetera. Is there a contract in there?

02:31 Peter Kissick: I'm sensing that that maybe you had unfulfilled expectations earlier in life and you need to know whether there might be a lawsuit here or just curious about that.

02:40 MS: There's a Starsky and Hutch car, in the late '70s, there might be some unresolved issue.

02:47 PK: Fair enough, fair enough, I' statute limitations as probably passed, but let's just deal with your core premise here.

02:54 MS: Right.

02:55 PK: Can Santa breach a contract? Or put another way, can the child who writes that letter actually form a contract? Well, to get to the boring part of definition of law, a contract is a set of promises the law will enforce, which is about a circular definition as you can get, the law is full of circular definitions, but it of course begs the question, "Okay, what promises are enforceable?" So if I say to you Matt, "I promise to buy your car for $5000," and you agree with me, we've each promised to do something, you've promised to give me your car and I promised to pay you $5000, that's simple.

03:37 MS: Okay, yeah.

03:38 PK: Fair enough, that's easy. Okay. So let's say it's little Mathew is writing to Santa, and Matthew is asking Santa to bring certain gifts. And in return, what are you promising?

03:55 MS: I'm promising good behavior, I guess. Just say, "I have been a good boy all year and in return I would like something." Oh okay.

04:05 PK: Okay, there's a quid pro quo there 'cause you wouldn't be good other than if you were promised to get some stuff.

04:13 MS: I think we're getting into the cultural premise of Santa. But yeah, I think so, I think it's not uncommon for children to be on their best behavior. The Elf on the shelf thing, coming up to the holidays.

04:26 PK: Alright, so you would alter how you behave in exchange for the promise of getting things back?

04:32 MS: Yes.

04:32 PK: Okay.

04:33 MS: I will stop being a terrible child because I want my Starsky and Hutch car.

04:36 PK: I can't imagine you were ever a terrible child, but there you go. Generally speaking, when we're talking about contracts you've gotta give up something to get something that's the essence of a contract. And Professor Pratt, one of our illustrious professors here who teaches Contract Law I think at a law 201 course, will often refer to David Hume, the Scottish philosopher, and talk about the parable of the rational farmers, and why they would actually... Why two farmers would actually promise to give something to one another when they don't even know each other. And basically it's mutual benefit.

05:15 MS: Yeah.

05:16 PK: Okay, so you promised to be a good boy if Santa brings you stuff. Does that benefit Santa?

05:24 MS: It benefits society so indirectly benefits Santa, 'cause Santa's gotta live in the world.

05:30 PK: Okay. One thing about contracts are, they're referable to specific people, and you've gotta be promising something to a specific person.

05:39 MS: Okay.

05:39 PK: Okay, and so Santa in and of themselves does not really benefit from your promise, so that might be difficulty number one with your lawsuit.

05:48 MS: Okay.

05:49 PK: Okay. Second thing about contracts, are they tend to be looked at as economic events. So these promises have to have value. Now, by value we have to be able to quantify them. Some sage English judge once upon a time said, "The value could be a mere peppercorn." So I promised to wash your car if you give me a peppercorn, could be a contract.

06:15 MS: Okay.

06:15 PK: Okay, the promises don't have to be of equal value.

06:20 MS: Okay.

06:21 PK: Now is their economic value in Matt being a good boy?

06:26 MS: I mean compared to the... I think there might be an economic lack of value in me being a bad boy, in terms of destruction.

06:35 PK: Fair enough. Although society assumes that you will already fulfill your societal obligations.

06:42 MS: Okay.

06:42 PK: So they're not gonna assume that you not breaking... Not breaking stuff, not breaking your civic duties, that's not really the benefit.

06:53 MS: So the absence of positive behavior or the absence of negative behavior isn't positive behavior, it's just neutral.

07:00 PK: That's correct. It would be like saying if you don't enter into this contract with me, I will break my contract with you. That is not a positive benefit that contract law would recognize. And this concept that we're talking about here is the contract law term is Consideration. You have to provide consideration to the other party for their promise.

07:24 MS: So, consideration is the exchange of value.

07:26 PK: Right. It's the price I'm gonna pay so that you promise something back.

07:32 MS: Okay.

07:33 PK: And it's that you will pay back to me. So again, it can't be to all of society, it's gotta be specifically to Santa, and it has to have some sense, someone to value.

07:44 MS: Okay.

07:45 PK: So your case is looking a little bit weaker.

07:47 MS: Right. Because I am not giving something that is of explicit value to Santa just by being a good kid.

07:53 PK: Correct. Yeah, yeah.

07:55 MS: Okay.

07:55 PK: Furthermore, there's a little bit of uncertainty and vagueness about that. Let's say that that could be quantified and given value and Santa really, really treasured that Matt was going to be good.

08:06 MS: Right.

08:07 PK: How would we assess the performance of that promise? How much good do you have to be?

08:13 MS: Okay, that's a great question. I don't know.

08:15 PK: Exactly.

08:16 MS: How good is good?

08:17 PK: Well, so that's...

08:18 MS: Who... Do my parents decide? Do my siblings, my teachers?

08:21 PK: And really the only person who can decide that is the other party of the contract.

08:26 MS: Okay.

08:26 PK: So again we have another bit of a difficulty as well.

08:29 MS: Right.

08:29 PK: There's an interesting analogy here if I can digress for a moment. One of the things that I often ask my class is when we're trying to figure out what is and is not a contract? Inevitably, what I do is I marry off and I'm using quotes here, two members of my class.

08:47 MS: Okay.

08:48 PK: And then, of course, I play around with the facts and one of them breaks it off with the other one and I ask the class, "Did he just... " and it's always the guy. Did he just break that contract?

09:01 MS: Right.

09:01 PK: He proposed to this person, he or she accepted that, and then before the wedding, he calls it off. Is that a breach of contract? And you get all sorts of twisted logic about why this is or is not, but one of the things that the law says is how we perform... How can we assess the performance of that promise. That promise is just so vague. What would be a good performance of that, being a good spouse.

09:27 MS: Okay.

09:28 PK: And so there are certain things where the courts say, "You know what, we just don't wanna have anything to do with that. That is just too vague. That's sort of a social policy issue, that the law shouldn't even think about." So a marriage proposal and acceptance is just not considered to be a legal contract.

09:44 MS: Okay. And in the same vein, a child's promise to Santa is not a legal contract.

09:48 PK: Exactly.

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09:53 MS: Hey, it's Matt. Happy Holidays. If you wanna give yourself a pretty cool gift, write yourself a coupon good for one certificate in law. Starting in January, you can register for the certificate in law program at takelaw.ca for classes beginning in May. If you just take one course a semester online, you'll have the certificate in law from Queens University, one of the best law schools in the country by the end of 2021. We offer courses in corporate law, Aboriginal law, intellectual property, workplace law and more. No matter what you're doing in life, you can get a deeper, richer understanding of how the law affects you as a citizen and as a professional, through our program. Sign up in January and start your legal learning journey, this spring. Lots more information is available at takelaw.ca.

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10:48 MS: Now just to play around with the idea a bit more.

10:51 PK: Sure.

10:52 MS: I did take law 201 and Professor Pratt's module on contract law and he talks a bit about this case called Carbolic Smoke Ball where a company takes on an ad and it promises that it'll basically give people an X amount of dollars if they get sick after using their product and someone takes them to court, yadda yadda. But one of the things that came through from that is kind of this idea of a unilateral contract that you can... You can broadcast something out into the world saying, "We will do X if you do Y." So is there another angle on this where Santa through songs and movies and television and books is putting out into the universe, through his magical powers. He's putting out a contract that says, "If you perform some sort of arbitrary act of goodness, I will reward you with a gift."

11:38 PK: Right, right.

11:39 MS: Is there a unilateral contract idea there?

11:42 PK: Possibly, I still don't think it's firm enough for us to actually acknowledge it as a firm offer. The notion of, yeah, the notion of a unilateral contract, is there is a very firm set of conditions or a firm offer. I said it if you do X, Y, and Z, then I will do A, B and C.

12:02 MS: Okay.

12:03 PK: Okay. And I don't think we actually have that here. In the Carbolic Smoke Ball case which makes me feel nostalgic 'cause I think it was the second case I studied in law school.

12:12 MS: Right.

12:12 PK: All those decades ago. In the Carbolic Smoke Ball case, the company advertised this product saying that if you use our smoke ball that was supposed to prevent illness, and you contracted one of these illnesses, we would give you 100 pounds.

12:24 MS: Right.

12:24 PK: So there was a very easy to define set of principles there in that offer.

12:24 MS: Okay.

12:24 PK: Now the notion of unilateral contract is you make an offer, I don't have to accept it but by fully performing the obligations that, in your offer, I have accepted it by my actions. So, to analogize to our specific case, Santa says or implies, or maybe blatantly says, "If you behave well, I will give you toys."

12:24 MS: Right, and he's saying that all the time.

12:24 PK: Right. And yes, and every movie we've ever seen, seems to suggest that, right? But again we're back to the, well, how better is better?

13:10 MS: Right, okay.

13:12 PK: And so that is just, again, such a vague set of terms that I don't think we could possibly suggest that that would amount to a firm offer.

13:21 MS: I feel like we are moving sideways into a parenting strategy, which is having Santa right back and say, "These are the duties I need you to perform in order to execute on this contract."

13:32 PK: There you go. There you go, exactly.

13:34 MS: If you wash the car, mop the kitchen floor, do the dishes, brush your teeth and go to bed on time for a month, I will in exchange... Now that's a contract.

13:43 PK: Matt, where were you 15 years ago when my kids were small, writing letters to Santa?

13:48 MS: Telling you, I gotta go ahead and find some kids.

13:50 PK: You know what, you've morphed into now a parenting podcast.

13:54 MS: There we go.

13:54 PK: This is wonderful.

13:54 MS: It's excellent. So I think we've pretty... I mean there's sort of a, there's a whole other element to this where according to some of the movies and some of the stuff, Santa exists because children believe in him. It's a real Tinker Bell situation. So that does cast a different shade on it where Santa actually requires the children to believe in order to just continue being Santa. But I feel like we're getting into a law in Theology intersection might be too muddy to weigh into right now.

14:23 PK: But you are right. I think that the takeaway from this if we wanna talk about Santa or anything else, is that if you actually want somebody to do something specific for you, you have to promise them something specific in return and both parties should know what those specifics are in advance.

14:43 MS: I guess the last sort of territory we can cover in terms of Contract law and Santa is the idea of reliance.

14:50 PK: Right, good.

14:52 MS: That you can make a contract, kind of inadvertently by having someone become reliant on you to perform.

14:58 PK: Right, that's correct, yeah.

15:00 MS: So, a child doing something truly extraordinary on the reliance that they'll be rewarded, that there might be an angle there for the kid right?

15:08 PK: Yeah, and still I hate to disappoint all those children. You're trying hard and you're coming up with great arguments. I probably at least give you an A minus For these, [laughter] even if you may not actually be able to convince any judge.

15:22 MS: That's my gift this holidays.

15:24 PK: There you go.

15:25 MS: A minus for Peter.

15:27 PK: Yes, there is this notion of reliance and I mentioned that Contract Law's about enforcing promises. And generally speaking, the only promises the law will enforce are those that are reciprocated with this notion of consideration. What happens if you make a promise that any, it's quite clear that the other side would rely on, even if they've given you nothing in exchange? Okay, what's known as gratuitous promise.

15:51 MS: Can you give me a for instance?

15:52 PK: Sure. Matt, I promise since I enjoy doing this podcasts so much that I'm going to contribute $5,000 a year to Queen's Law, going forward.

16:04 MS: Oh sweet.

16:05 PK: Okay? There you go.

16:05 MS: Now Queen's Law is gonna buy a bunch of stuff because we know you'll gonna give us the money. This is great.

16:09 PK: Yeah, exactly, perfect. Now that would be known as a gratuitous promise. I have made a pledge but you haven't given me anything in exchange for that pledge. It was made gratuitously which ordinarily is not enforceable. Kinda like me promising to do a favor for you, okay, that's ordinarily not enforceable. But, if I know that Matt is in fact going to rely on that promise and go out and buy a whole bunch of more audio-visual equipment, he can say, "You knew or you ought to have known that I was gonna rely on that promise to my detriment, and so that should now be binding upon you Peter."

16:47 MS: Okay.

16:48 PK: Now there's some controversy in our law over whether or not you should be entitled to hold me to that promise or sue me for breach of that promise. The Americans take a slightly different approach than the Canadians and the Brits on this, but I think the law's moving to a point where, yeah I think there might be in the clearest cases, a case that you can make for the breach of that quite clear gratuitous promise where there is what's known as injurious reliance.

17:18 MS: Okay. But in Santa's case, it still doesn't quite hold water.

17:24 PK: This is an exception to the rule and common law does not like exceptions necessarily unless they're very, very clear cut. And I'm still thinking that, okay, what level of spectacular behavior is actually gonna be clear-cut?

17:40 MS: Okay, excellent.

17:42 PK: I think so. So again, you're trying hard. You're coming up with some great arguments but I think you're getting cut down by the consideration rule. The fact that there's gotta be value in your promises, that they've gotta be clear and then ordinarily, just promising something isn't enough.

18:01 MS: Okay, but hey, we got some parenting tips.

18:03 PK: There you go.

18:03 MS: Excellent.

18:04 PK: Excellent, very good.

18:05 MS: Thanks very much Peter.

18:06 PK: Oh my pleasure.

18:09 MS: Thanks and happy holidays to Peter Kissick. Contracts are everywhere, from your daily cup of coffee to multinational corporations. If you wanna learn more about contracts, we a have a great module in LAW 201/701: Introduction to Canadian Law. If you wanna dive into Corporate Law in-depth, Peter is the creator and instructor of our Corporate Law course, LAW 204/704. You can learn more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who's also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.

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There's been a huge change in international law, with global and far-reaching implications: learn about the crime of aggression from the man who literally wrote the book on the subject: Noah Weisbord, a Queen's Law professor and the designer/instructor of the International Law module in Law 201/701: Introduction to Canadian Law.

If you enjoy the podcast, take a moment to subscribe! You can find out more about judicial power and constitutional law in Canada by taking Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd. No matter where in the world you live, you should know that something has changed in international law, something big. For the first time since World War Two, the international legal community can find individuals, like heads of state, and military officials, responsible for crimes of aggression. What does that mean, and why is this such a big deal?

00:29 MS: Noah Weisbord is a professor at Queens Law, and the creator and instructor of the international law module, in law 201/701 Introduction to Canadian Law. He knows a bit about the crime of aggression, in fact he's written a whole book about it, which is topping Amazon sales charts and receiving accolades across the globe. We're having our own book launch event for the crime of aggression on November 11th, following events in Montreal, New York, and elsewhere. Noah sat down with me to talk about the crime of aggression. What it means and how the term is being updated from a modern world where drones and cyber attacks are creating new ways of waging war.

01:07 MS: This podcast is not legal advice and is being presented for informational purposes only. Fundamentals of Canadian law is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:36 MS: How has the book done since its launch?

01:38 Noah Weisbord: I've been really kind of surprised and delighted. So the book was Amazon US, number one New Release. Philip Sans who's one of my favorite authors, he wrote a book called East-West Street on the origins of genocide and crimes against humanity, it was a best seller everywhere, called it a book of singular importance intelligence and insight on a subjective of enduring significance. I'm feeling good about how it's doing. I hope that people pay attention. I think that this is one of the most important issues of our times. The shift towards authoritarian rule, mixed with lower barriers on aggression, against other states. I'm very concerned about this, the transformation of warfare and the move towards authoritarianism, and this book deals with those two themes.

02:31 MS: And I think a lot of people can be nervous about reading, writing by academics, 'cause I think it's gonna be very academic writing, but there's been some reviews that have said you kind of hopped the barrier, that the book is, it's accessible.

02:42 NW: Yeah, it's supposed to be kind of a series of stories, a history, it's got characters. It's got villains it's got heroes. So I think it's accessible to someone who's interested in these issues, and hopefully a broader audience will become interested in it as well. It's a story, really, it's more of a story than a theory. And the concept is an old one, it tracks 100 years of diplomatic negotiations over this holy grail of international law. Holy grail of international law is to hold an individual leader like a president or a prince responsible for waging an illegal war.

03:27 NW: So this started as a discussion around World War One, there was an attempt to create a prohibition where the Caesar who is supposedly responsible for World War One according to a lot of people, would be held accountable for the war itself, would be prosecuted by an international tribunal held accountable. Then in World War Two, afterwards, there was the trial of the Nazis for the invasions of Poland, Czechoslovakia, and number of other countries. So individual Nazis, Hermann Göring and others were held accountable for those invasions. And then basically this idea went into a deep sleep throughout the Cold War, because the Americans and the Soviets couldn't agree on a definition. But this is the holy grail of international law, because it would mean that the prohibition on the use of force would be individualized and these leaders could be captured and tried.

04:27 MS: Right. And so what you're saying is, for a long time, basically the US and the Soviet Union were such power players, that if they couldn't agree on this, then it couldn't happen.

04:37 NW: Absolutely, 'cause it needed to be established by a treaty that all of the states, or at least a great many states would agree to. And very difficult to come up with a definition of an illegal war, which individuals are gonna be held accountable, is it just gonna be the president or is it gonna be the minister of defense, the generals? How far down does it go? But I need to add something. Is that until very recently, until December, 2017, when the new law was actually activated over this 100 year attempt to define it, gets activated in 2017. What existed at the time when it came to prohibiting force, was that there was no prohibition on force prior to World War One, there was no blanket prohibition, states, presidents, princes could wage war as they please, they were free to do as they pleased when it came to...

05:32 NW: It was like a form of law enforcement. If another state wronged you, you could go and invade them and force them to make it right. World War One happened then, empires crumbled, states went to war. Tens of millions of people were killed in this war. And then states tried to build an international system collective security. But it wasn't individuals that were regulated under the system, it was states. And there was no prohibition on war, they could wage war as they please, so long as they first tried through the League of Nations to resolve their dispute peacefully. So there were procedural steps to try to resolve the dispute, and if those didn't work, then the state could wage war against the other state. That system collapsed in the 1930s with Hitler. And with the end of World War Two, two important things happened. First, the creation of the United Nations. It was like the league, but strengthened, but more robust enforcement system of the Security Council, the great powers in charge of enforcing international law.

06:42 NW: In parallel with that, the Nuremberg trial, where the Nazis were tried for crimes against peace, which is now called the crime of aggression, that's the subject of my book. Crimes against humanity, which are widespread attacks on the civilian population of genocide, was a category of crimes against humanity at the time. And war crimes, violations of the laws and customs of war, shooting prisoners of war, using prohibited weapons like poisonous gas, things like that. So at Nuremberg, these individuals were held accountable but the prohibition on force who was created by the United Nations, only prohibited states from invading other states, that's collective responsibility.

07:26 MS: Right.

07:28 NW: My regret, and the regret of Benjamin Ferencz, the Nuremberg prosecutor who kind of championed this idea, he was one of the key players in the drafting of this new crime. The biggest regret was that the UN Charter and the Nuremberg idea that individual leaders would be held accountable, weren't combined at the time. That would have made it so that it would be easier to enforce international law, 'cause it would be just against an individual, not against an entire state, a collective.

08:01 MS: But why is it so important that individuals be held responsible? 'Cause I mean, it takes a village, right? It takes a whole state to go to war, there's a lot of people there. So why is it so important that an individual be singled out as responsible?

08:15 NW: Okay, so this is the central question. Basically the root of this whole discussion is, whether wars are caused by abstract forces, you know, a state competition, economic inequalities, or whether they're caused by individuals that decide to bring their nation to war. And I think that this debate has been playing out for the last 100 years, underlying the discussions over the crime of aggression. And I think we're starting to realize now, since 2016, we've realized how much power the leaders of states, for example, the American leader, and leaders in Europe, and autocratic leaders in Turkey, Venezuela, we're starting to really realize that the social and historical forces can be in place for war, the competition can be in place, but what's required is pyromaniacs to light the world ablaze.

09:07 MS: Right. And this has been raised before on sort of domestic grounds. I remember when Obama assumed the presidency, and people said, "Well, you should prosecute George W. Bush for war crimes." And he was like, "What's done is done." So is there a reasonable hope that this will happen or is there just gonna be a general political leavening of things where people will be like, "Well technically we could do this but why stir the pot?"

09:34 NW: We know that autocratic-leaning leaders are scared, we know this because they're exerting a great deal of effort attacking all the international justice institutions and all of the post-World War Two checks on their power now. In my entire life, I've never seen such an onslaught on the rule of international law as I have since 2016. And I'd say the highest point, the most aggressive point of this onslaught was John Bolton being appointed National Security Advisor to Donald Trump. This is a man who said that the best thing that could happen to international law is that the top, I forget, maybe top 10 stories of the United Nations be wiped off the face of the planet. He said that International Criminal Court is dead to us in his first speech after being appointed by Trump. Basically, rather than focusing on preventing autocratic leaders from torturing and targeting their populations from waging terrible wars, from stealing the money of their people, he focused on attacking the institutions that would prevent these kinds of abuses. And we knew then and there that something was happening, that there was a certain defensiveness that came of this, and that means that now is not the time to let off on the institutions. Now is not the time to let off on the United Nations, the International Criminal Court, and any other emerging institutions to hold leaders accountable. You gotta put on the gas now.

11:08 MS: Right. Your read of it is, is this aggression towards the institutions as people being nervous about the institutions?

11:16 NW: I think that John Bolton, potentially, could be the first defendant at the International Criminal Court for the crime of aggression potentially. The crime of aggression is the planning, preparation, initiation or execution of manifest violation of the United Nations Charter, which is a big mouthful. But basically there's a list of acts that amount to acts of aggression, bombardment, blockade, attacking the Armed Forces of another state, sending armed bands to attack another state. These are lists that came out of negotiations, since 1933, this list was in place. And so it's one thing that this law does, is it is the clearest most specific prohibition on illegal war that's ever been. And it's been accepted by consensus, by 123 states in the world after a long series of negotiations.

12:17 NW: Second thing that it does, is it doesn't just give the International Criminal Court another crime that it may or may not be capable of prosecuting, depending on how much leverage it has politically at the time. It hands this crime to 123 states parties, regional courts that can try leaders for aggression, the domestic courts of Russia, Germany, approximately 40 states having their domestic criminal codes the crime of aggression. Right next to manslaughter, murder, theft. It creates a international justice ecosystem, with the capacity to result in accountability for these aggressors. So okay, is it gonna work? Not sure. My prediction is that the first aggression cases will be self-referrals, like the first genocide and crimes against humanity cases. So, a successor regime, just imagine the United States, would hand over, imagine Bernie Sanders or Elizabeth Warren or Kamala Harris president coming in, and deciding that accountability was important, the rule of law has been eroded under the last president, and we're going to refer our own situation to the International Criminal Court for prosecution. Meaning that John Bolton or some other Trump administration officials implicated in some sort of illegal wars would be tried in The Hague with the consent of the United States.

13:50 MS: So this is a national self-referral. Does the nation refer itself, or does the nation put forth the individual? Would the United States say, "Donald Trump, this guy, this is the guy, you got to prosecute this guy, we're the United States but we still think he's gotta be prosecuted." Or would they say, "We think the United States is engaged in crimes of aggression. We need you to find the individuals responsible."

14:16 NW: There's a number of ways. The United States could say nothing about aggression, they could just say, "We refer our situation in relation to Afghanistan or in relation to Syria, to the International Criminal Court." And leave it to the court to find crimes within the jurisdiction, in its jurisdiction. The United States might or might not hand over its own people. It could hand over John Bolton or John Bolton could travel to an ICC state party, 123 of them, required to arrest him under the agreement. So he flies to Canada, Canada decides John Bolton private citizen should be surrendered to the International Criminal Court for prosecution. So it is a kind of an enforcement system that's complex and disaggregated, and it doesn't just rely on the ICC that has no army of its own to arrest. Every state that's a member of the ICC should participate, and civil society can help as well. There's even been private military contractors, mercenaries they have arrested in the past. And as long as those arrest don't result in egregious circumstances like torture, then you can still trial people that have been arrested by mercenaries in international courts.

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15:42 MS: Hey, it's Matt. A quick note that at the time this airs, you've got just over a month until November 30th, 2019, to enrol in our certificate in law program for January 2020, start. You can learn more about international law from Noah Weisbord, and our Introduction to Canadian Law course. And even take a really deep dive with law 207/707 International Law, created by Queens Laws PhD, Chris Waters. If you start in January and take just one online course a semester, you could earn your certificate in law from Queen's Law, one of the best recognized law schools in Canada, by the summer of 2021. In a complicated world, it's important to know what's happening behind the headlines, and in a competitive world, showing you understand the law can help you to stand out. You can find out more about the program at takelaw.ca or drop us a line at lawcertificate@queensu.ca. Back to Noah.

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16:40 MS: You said way back when this was basically stalled for decades because the USA and the USSR couldn't agree on things, and they could hold up the process 'cause they were so powerful. Since the dissolution of the USSR, the US is the world power, if they're so upset about it, why can't they just stop it?

17:02 NW: You mean stop the court from being able to function? Stop the prosecution of the crime of aggression?

17:08 MS: Yeah, if they could stop it from sort of being formalized in the first place. Can't they take it apart now?

17:13 NW: Well, now it's become a swarm. So the law itself has become so disaggregated that even if the United States blew up the international criminal court, then the crime still exist in the legal system of 123 states, and some regional organizations, the African Court of Justice and Human Rights. And it's basically become law that permeates all of these different level, institutional levels.

17:45 MS: Right.

17:46 NW: So, okay, maybe the swarm is not gonna be able to take down President Donald Trump while he's in power, for example. But certainly when the leader gets politically marginalized, geographically isolated, that's when the leader, it has been shown in past arrests, becomes vulnerable to arrest and prosecution.

18:09 MS: Right. So what constitutes a crime of aggression today? In 2019? Maybe 2020 soon. What is a crime of aggression?

18:17 NW: Well, that's exactly now the scope of which an advisory group established by the Liechtenstein mission to the United Nations is trying to figure out. So we have the traditional list of acts that are defined in the crime, Article 8 BIS of the International Criminal Court treaty sets out those acts, bombardment blockage, attacking the armed forces of another state. There's I think eight of them, seven or eight different acts. But the definition of the law itself allows for other sorts of armed attacks to amount to aggression. So the question becomes, do cyber attacks amount to crime of aggression? What about some little pinprick drone strike, occurring in Pakistan without authorization of the Pakistanis, so an illegal use of force in Pakistan may be falling below a de minimis threshold, is that amount to an act of aggression? So these are the things that need to be worked out, and quickly. Because imagine if the right of self-defense would kick in on the part of Pakistan, after a single drone strike, just across the border with Afghanistan, imagine if Pakistan could respond defensively against the United States in that case. It could open the flood gates.

19:42 NW: So there's a debate about what is going to amount to aggression. Cyber attacks affecting an election, is that an armed attack under international law these days? So there's gonna be a group of expert advisors, convening for the next number of months. First meeting is the 30th of October in New York City, where these world experts are gonna try to figure out the scope of acts of aggression and what can be prosecuted.

20:14 MS: And this will then become law once they've decided?

20:18 NW: It's going to become kind of a proposal to states. The states are gonna get involved in these discussions, and then hopefully it will generate a certain amount of momentum and will clarify what states already want to have clarified, which is when they can respond with armed force, for example. When they can prosecute somebody for a cyber attack causing massive damage to their state, things like this.

20:44 MS: Right. I mean after this it's, what is the practical implementation of this? If the international community decides that there has been a crime of aggression, you literally arrest the individual somewhere and bring them to Geneva to stand trial?

21:03 NW: Well, the hope would be that this clarification of the law will pervade every level of decision-making about cyber attacks. So when a state's trying to decide, for example, whether to send a drone or a bot to another country to cause damage in that other country, that they will have a clear line about when they know when the person making the decision can be criminally accountable. If a Canadian leader orders this criminally accountable in Canada, criminally accountable in a regional court, criminally accountable in the court of another State, Germany, Russia, Belgian. Criminally accountable at the International Criminal Court, and the whole system is disaggregated. So, the question about whether leaders, whether Vladimir Putin could be held accountable for the hacking of the US election? That would be good to know. Also the United States' leaders need to know whether if they respond with armed force to that, whether they themselves are committing the crime of aggression.

22:07 MS: Right.

22:08 NW: So it's a setting out of clarification of the loins, of The New Rules of War in relation to this evolution of warfare.

22:17 MS: And what you just said suggests that it's retroactive, as well.

22:20 NW: I won't be able to go... The interpretation itself is retroactive to the point of when the crime of aggression became activated.

22:33 MS: Okay.

22:33 NW: So, when the crime of aggression in 2018, became active for prosecution, these interpretations of what the meaning of the terms are can be applied to that. But the crime of aggression itself cannot be applied to the 2003 invasion of Iraq, it wasn't the law at the time. So aggression wasn't a crime for individuals in 2003 when the United States invaded Iraq, so it would violate the principle of legality, and not be permissible under criminal law to do that.

23:07 MS: Right. And you start thinking obviously of, you know, here is the rule, what's on the fringes of that rule, how do we sort of test this? This is just international. You can't have a crime of aggression against yourself. I'm thinking of Hong Kong right now.

23:20 NW: Oh, I see what you mean, yeah, yeah, no. It's the use of force by a state against the political independence or territorial integrity of another state. So there could be another crime though, for example, a cyber attack by the government of China against individuals in Hong Kong, there could be a way that that would amount to an international crime. So if it caused widespread destruction to a civilian population somehow, then it could be a crime against humanity.

23:52 MS: Okay. And what if a non-state actor commits aggression? I'm thinking, Mark Zuckerberg goes nuts and Facebook just is all about how much everyone should destroy Liechtenstein. He's not the state, he's not under orders from any one, he's an independent actor running a private company. But is that something that's also kind of notionally a crime of aggression?

24:14 NW: So this was debated in the negotiations, 2003 on, about whether Bin Laden could be held accountable for the attack on the World Trade Center in the United States. And the states decided that probably not, they decided that they were gonna tailor the crime to be as close as could be to customary international law and the use of force. So only the political or military leaders, or economic leaders of a state, with control of the policy of that state could be held accountable. So this is, imagine for a moment that the leader is using the state as a weapon. So the leader is pulling the trigger of the state and launching the attack, that's how the crime was designed. What I have been suggesting in these negotiations over the years that I've participated and in a number of law review articles, is that perhaps incrementally, the notion of a state can expand. The notion of the state hasn't remained stable. It's had various evolutions, and maybe one day state-like entities, like the Islamic State, the leaders of those entities could be held accountable on the crime of aggression. Evolving, evolving, like the common law does incrementally over time, so that finally individuals could be held accountable that are not connected to an organization like that, for committing acts of aggression against another state.

25:46 MS: Right. And I mean clearly, you've written the book on the subject, which is available now, but that was written at a fixed moment in time. If people wanna sort of keep up with this issue, where would they turn to? How would you sort of stay abreast of what's happening here?

26:01 NW: So there's a number of discussions going on, especially on a few websites that I really like. I love the contributions to just security. There's constant talk about cyber attacks and the use of force. There's a great piece by my German colleague, Claus Cress, that just came up. It's one of the finest pieces in the last number of years, about the evolution of the prohibition on the use of force on just security. I like lawfare, that's another site that I follow closely. And of course, the American Society of international law. So, people are speaking about this. My book was intended to be a scenario kind of futuristic scenario planning book. So the first part of the book is about the evolution of this idea, the second is about how it could evolve over time. So I'm kind of keen to see what other people think when it comes to what war is gonna look like in the future, and what law is gonna look like in the future as well.

27:06 MS: Well, thanks so much, Noah.

27:07 NW: Thank you very much Matt.

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27:11 MS: Thanks to Noah Weisbord. Noah covers the fundamentals of international law, in his module for law 201/701 Introduction to Canadian Law. If you wanna dive right into international law in depth, you can also take law 207/707 International Law, created and taught by Queens PhD, Chris Waters. Fundamentals of Canadian law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton who is also a staff member here at Queens Law. You can find out more about her music at MeganHamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers you can find her work at vdesrochers.com. Thanks for listening.

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Who hasn't done... something a little out of bounds while driving? But who decides what out of bounds means? And how do those "bounds" get moved? Hugo Choquette (Law 201/701, Introduction to Canadian Law) takes us from the law of "sufficient care and attention" to how a judge defines those things in practice -- and how those definitions might have implications beyond the courtroom they're first heard in.

If you enjoy the podcast, take a moment to subscribe! You can find out more about judicial power and constitutional law in Canada by taking Law 201/701, Introduction to Canadian Law, at takelaw.ca.

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Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd, and I have once or twice texted while driving. I was just reading texts, not writing them, but it was distracted driving and I feel bad. Talking to the instructor in Law 201701, Hugo Choquette, I feel a little less bad. Not that I should look at my phone while driving but we're talking about a case that blows that out of the water when it comes to distracted driving. And then Hugo takes that case and really uses it to unpack how judicial decisions evolve over time and the effect of precedent on our legal system.

00:40 MS: It's an interesting conversation that really clarifies how judges think and how our judicial system works to shape law over time. This podcast is not legal advice and is being presented for informational purposes only. Fundamentals of Canadian Law is brought to you by The Queen's certificate in law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:14 MS: I am... I think I'm a strictly median driver. I'm not a great driver. I'm not a poor driver, but I'd be the first to confess that I am not... My hands are not always at the 10 and two position, or the nine and three, or whatever it's supposed to be these days. I have been known to glance at other things while driving. I adjust the radio while driving. But we're gonna talk today about something that kind of takes this to another level.

01:39 Hugo Choquette: Yeah.

01:40 MS: In terms of driving while doing other stuff.

01:41 HC: Absolutely, and I have to say, one of the reasons that the story caught my eye was because I've been known to have a coffee in one hand and my other hand on the wheel pulling on to the 401, and my wife always, who's a nervous driver, always tells me I shouldn't be doing that. So I was sort of caught by the story and what it implied, but you're right, it does take it to the next level. So this woman in British Columbia, Karin Jackson is her name; she was caught eating with chopsticks in her right hand and a bowl of some sort in her left hand, and shovelling the food in her mouth while she was driving on the highway. So, probably not something that would be highly recommended.

02:21 MS: Wait wait wait, so bowl in the left hand, chop sticks in the right hand. Arguably at this point, you could say she's not driving.

02:30 HC: That's right.

02:31 MS: But this was a no-hands-on-the-wheel scenario.

02:34 HC: Well, so her evidence was that she had three fingers on the wheel, but that evidence was rejected by the judge. The judge actually believed the police officer who stated that when he saw her, she had no hands on the wheel. She was essentially... Had both hands occupied with other objects, and so that was the evidence that the judge actually accepted.

02:53 MS: Okay, so she's driving, bowl and chopsticks, and what happens as a police officer basically pulls up beside her?

02:58 HC: Yeah, so basically the officer reports her to the patrol car and they stop her and she gets a ticket. She was speeding as well, but her speed was not huge I think she was 10 kilometers over the limit, but the issue is she was driving without due care and attention. So that's the charge. So then, of course, she contests this and it goes to court. So what I find interesting about the case is what happens next in terms of how the judge determines this.

03:26 MS: Right.

03:27 HC: So, the first thing the judge will do, of course, is look to the law that applies, and in this case we have the BC Motor Vehicle Act, and the section basically says, "No one will drive without due care and attention." So, there's our rule, there's our legal rule that we have to apply. But of course, you can see the problem with this. What does that mean? It's very vague; one person's due care and attention might be another's distraction.

03:52 MS: Right.

03:53 HC: So the judge really has to sort of parse that out and explain what it is.

03:58 MS: I mean, right there is clear. There's sort of some notionally clear parameters there. I can't be asleep.

04:04 HC: Right, of course.

04:05 MS: I've got to have my face more or less forward. But yeah, what is due care and attention?

04:09 HC: That's right. So there's a few things that we know already, so we know that it's an objective standard. That means it's not about whether the person thought they had sufficient care and attention, it's whether objectively the reasonable person would think that they were driving with due care and attention. So we know that and we know that, again, there are those basic parameters as you were saying, that you can't be drunk or you can't... There's those things. But beyond that, we need to look at what else might this imply. And the normal process, of course, would be to look at other cases. So, under normal circumstances you would say, "Well, what have cases that have come before said about this issue." But the particular problem in this case is that while there have been many cases of cell phone use, for example, and other things... At least as far as British Columbia was concerned and that's what the judge mentioned in the case, there hadn't been a case of eating food while driving; that just wasn't a scenario that had come up before. The closest equivalent was a situation where a man was driving with his dog in the car, and the dog actually went on their lap and caused them to be distracted and caused an accident. So that was sort of the closest equivalent they could find to this sort of scenario.

05:18 MS: And the equivalents are important because this is... We are in a precedent-based system.

05:23 HC: That's right, yeah. So the common law system, which is what we have in the common law provinces in Canada basically means that decisions get made on the base of precedent, so basis of decisions that have come before that judges are either in some cases, bound by if they come from a higher court or at least have to follow in some way. And so, the usual process would be you would look at similar cases and say, "Well where does this fall on the spectrum of those cases? So, the challenge here being there are no cases that really have this, are directly related to this situation. So it's a bit of a novel situation.

05:56 MS: Right.

05:56 HC: So what does the judge do in those situations? And I think what the judge did actually really exemplifies how the common law evolves, how our law evolves in the day-to-day application. So what the judge did really was two things that I think are significant. He sort of extended the law logically, but incrementally as well. So he created a logical extension to what we already knew from the case law, but he was sure to limit it, so that it wasn't a huge change in the rule. It's a slight change that sort of modifies what we know already. So the judge decided that the rule would be that you have to have one hand on the wheel at all times, and that if you don't then that will constitute driving without due care and attention.

06:41 HC: But what's interesting about it is if you sort of unpack... And the judge doesn't really go through this whole reasoning process, but if you kind of unpack where that might come from you can kind of see how it's an incremental extension of the law because we know for example, that cell phones, particularly hand-held devices are not... Are considered to be enough of a distraction to meet that standard. So if you're using a cell phone that's not a hands-free device you're normally found to have been driving without due care and attention.

07:10 HC: And if you think about that part of the reason for that is because, of course, the cellphones is distraction, so it's a mental distraction, but it's also because it's a manual distraction, so your hand has to be on the device or handling the device, and so it's unavailable to sort of help steer the steering wheel, so to help guide the car. Now, I think most people would agree, and again this is where it sort of the logical extension part comes in. I think most people would agree it would be a bit extreme to require people to have both hands on the wheel at all times.

07:41 MS: Right.

07:41 HC: And so again, I'm not inside the judge's head, but you might think that the judge would think, "Well, that can't be the rule because that would seem a little too extreme."

07:51 MS: So is there kind of... Like you said, "We're not in the judge's head," but is there sort of a historical component to that? People have been changing... They've been retuning their radio for decades, so there's a very long history of people driving with one hand on the wheel. Watch movies and TV people kind of famously drive with... It's cool to drive with one hand on the wheel.

08:12 HC: Yeah, absolutely, and that plays into it as well. So societal norms and expectations also come into play here, and while we have changed our views around such things as drinking and driving for example, and also to a large extent, I think we're more conscious of the idea of inattention behind the wheel and what that can 'cause, also, because there's more traffic. At the same time you're absolutely right, that I think part of this is you can't have a rule that is so completely out of sync with societal norms. If you were to say, "Well, a driver has to have both hands on the wheel at all times in order to be driving with due care in attention," I think that would be too extreme, and it would be out of sync with precisely what you were saying, that that social norm that this is in some cases is not an issue.

08:56 MS: And it would become, practically speaking, unenforceable.

09:00 HC: Well, absolutely, and...

09:02 MS: You'd need armies of police.

09:03 HC: Exactly. So, that's another concern of course. And you're absolutely right, the enforcement of the rule has to be something that is possible; otherwise the rule isn't really serving useful purpose.

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09:16 MS: Hey, it's Matt. A quick note that this is airing in late September, 2019. So you have about five weeks to enrol in our certificate in law program for a January, 2020 start. We're offering Introduction to Canadian Law, Workplace Law, Public and Constitutional law, and Intellectual Property that semester. If you're interested in this interview so far, Introduction to Canadian Law provides an overview and Public and Constitutional Law is the real deep dive on these subjects. If you start in January and take just one online course a semester you could earn your certificate in law from Queen's law, one of the best recognized law schools in Canada, by the summer of 2021. It's not too shabby. You can find out more about the program that takelaw.ca or drop us a line at lawcertificate@Queensu.ca. Back to Hugo.

10:09 HC: So based on that, then the judge decided that the rule should be that you have to have one hand on the wheel at all times and that hand cannot also be holding another object. So he also dealt with the issue that Ms. Jackson was saying, "Well basically I had three fingers on the wheel, but even though I was still holding the bowl," That wouldn't qualify either because that hand that is on the wheel has to not be also preoccupied with another object. But what was interesting about it, the judge was also very clear to limit the impact of this to saying that he was not saying that anyone who drives while eating will be found to have been driving without due care and attention.

10:48 MS: Right. I got a granola bar. I can still manage myself according exactly.

10:53 HC: Right. Exactly. So again, the test still remains in all the circumstances, "Did you drive with due care and attention?" But now we have a case that actually establishes some sort of standard for that in the case of eating at behind the wheel. So it actually allows you to guide your behavior. If you know that if you are holding an object with you one hand that's on the wheel and have an object in your other hand and you only have a finger on the wheel, that is going to probably cross the line into driving without due care and attention. Now, nothing's ever 100% certain in law because it always depends on those circumstances, but what's interesting about that is that we now have a rule that has become the new precedent. And so if this issue comes up to courts again, they will look to that case to say, "Well, this is what the judge decided in British Colombia and this makes... " They will either decide to adopt that as the rule that this makes sense or the lawyers in the case will have to find some way of distinguishing it from the new situation, but it's a really interesting way of showing how those rules get evolved in the case law.

12:00 HC: Even in situations where you don't have relevant precedent. And again, I think what's important to stress is that it has to be a logical extension, so it's not something that is completely different from what came before, in terms of the logical connection to the actual rule that is driving with due care and attention, but it's also incremental, in that it's limited and it's deliberately limited by the judge to a small subset of new situations; not suggesting that all eating behind the wheel for example, will be caught by this rule.

12:37 MS: And you mentioned something just about a minute ago, that I think is important as you sort of mentioned that this is a case that may set a precedent outside of BC. This is not locked inside British Columbia's borders. This is a precedent that can serve in common law jurisdictions period.

12:53 HC: Absolutely, and so because of the fact that this issue is unlikely to have been brought up many times before, it's sort of not something that you see very often brought to court. It absolutely, certainly in Canada, a decision from another province will be very persuasive, but also in other jurisdictions like the United States this maybe looked at as a precedent for decisions, largely because the common law system is largely the same in those jurisdictions, but also for this particular situation, motor vehicle statutes are also likely to be very similar. And so, the Ontario Highway Traffic Act for example, would have a similar provision. And so the interpretation of that provision would fall along the same lines. And so, yeah, it really is, it's a case that could start a whole other line of precedents and provide guidance for other courts, but also for how people in their day-to-day lives actually make decisions.

13:48 MS: So I wanna go off on a bit of a tangent and then back to the one hand on the wheel thing, but on a bit of a tangent is what makes this unusual what the person behind the wheel was doing, or was what makes this unusual the fact that she actually contested it? 'Cause I feel like as someone who has spent a fair bit of time in the highway people doing goofy stuff in cars is not... It's rare enough that we're not all dead, but it's not that rare.

14:14 HC: No, and I have to say I've seen my share of things people putting their makeup on and other kinds of things like that. So you would think that this kind of thing would not necessarily raise too much scrutiny, but I think what's happened is... And what's interesting about the case too is that only a few, I think it was a few weeks or months before, the RCMP had actually tweeted out a picture of someone driving with no hands on the wheel and suggested that that might result in a ticket.

14:43 MS: Right.

14:43 HC: They had anticipated this sort of thing, but I think it's probably due to the higher scrutiny being paid to other forms of distraction, like electronic devices that we're all of a sudden discovering there are other things going on behind the wheel that might be causing the same level of risk. I think it's unusual or at least it's novel in that sense that it was brought up. I also think you're absolutely right, though, that... And one of the last comments from the judge in the case was that he wasn't prepared to reduce the fine here because of the egregious circumstances. This seems to be, I think, to most people who drive, this seems to be an extreme example, particularly on a highway of taking this a little too far. And so I'm surprised in a way that this was contested, and that's important to understand as well for the legal process because the only time a decision really gets made on a case for example or in a situation like this is when it's contested. The police might have issued a number of tickets for that reason before, but if the person who received the ticket simply paid it and didn't contest it, then there would be no cases to decide what the rule actually is. We only have what the police decide is their policy. So in a way, it's sort of interesting that this was actually contested and that, now we have a legal rule based on case law in this situation.

16:07 MS: So the sort of thing that might even radiate to police in the performance of their duties, that they might be on the road and be like, "Oh, not one hand on the wheel. I've got to do something." 'Cause now they know that there is sort of a standard that's been set at the judicial level.

16:22 HC: Absolutely. So, it seems to have been the unofficial policy anyway because one of the officers in the case actually admitted in cross examination that if she had had one hand on the wheel, he would have let her go. In other words, he wouldn't have signalled her to the patrol and had her pulled over. So that seems to have been their unofficial policy, but now it's reinforced by the fact that they know this is a legally enforceable rule. So of course it's gonna give them more confidence in terms of being able to pull people over and say, "Yes, we can give you a ticket for this because it's recognized that this is a... This is against the law now."

16:56 MS: So we start with a statute that's pretty vague. You have to drive with due care and attention, and that's a lot of space to play in there. And this case comes up and the judge is like, "Okay what defines this as not due care and attention." Well, it can't be eating, 'cause anyone who has a cup of coffee in the car can't suddenly be driving dangerously, that's not societally acceptable. So let's make a rule, let's say it's one hand on the wheel, that seems like a pretty solid base to stand on. But can this have unintended consequences? Like in some... I play board games, there's a type of person that plays board games, we call the rules lawyer, which doesn't necessarily reflect well on lawyers. But will they be rule lawyers out there that now say, "Oh, if I have one hand on the wheel, anything goes."

17:40 HC: It's certainly a risk. I think the important thing to remember is that the rule defines one type of behavior that might be caught, but it doesn't assume that anything else won't be. So because we still have that standard, ultimately, the ultimate standard is would a reasonable person view this as driving with reasonable... Or with due care and attention. And so that's always gonna be there in the background. So, what's clear is that if you don't have at least one hand on the wheel, you're likely it's gonna be a tough argument to make that you were driving with due care and attention. But what's less clear is that even if you have a hand on the wheel that you couldn't still, for other reasons, not be driving with due care and attention. To give the most obvious example, if you have your cell phone in your other hand we know that if you're texting with your one hand while you still have one hand on the wheel that's not going to make it okay, just because you have one hand on the wheel. So there's still that room for other kinds of behavior and activities to be caught, but at least we have some sort of standard that we know you can't fall below; you have to have one hand on the wheel at all times.

18:47 MS: On sort of a side note, reading about the case, one of the things I thought was kind of fun was at one point the defendant said that she wasn't really speeding 'cause she was only going about 10 kilometers an hour over the speed limit. And the judge is like, "No, that's speeding. You were literally speeding." So there's no fuzzy, grey... And again, this is something... As someone who drives, you're kind of like, "yeah, there's a grey zone," but I think people over time may lose the ability to distinguish what offenses a police officer made deem it worth their time to pull you over for and what's actually against the law.

19:23 HC: That's the thing, and it's actually an interesting reflection of what we consider to be the rule of law because those unofficial policies of when things get enforced actually can crystallize and almost become the law because in effect, we all know that if you drive 110 kilometers on the 401, your chances of being pulled over are minimal because other people are going much faster and it's sort of an accepted thing that the 10-kilometer above rule applies. But again, it's important to note and to remember that technically one kilometer over the speed limit is breaking the law; the law says the limit is 100 kilometers per hour. And what's interesting about that is this plays in a lot to people's perceptions of raising speed limits because you always have the two competing arguments with one side saying, "Well if we raise the speed limit, people are gonna drive even faster." Where other people will say, "Well no, if you raise the speed limits we're just going to get actually cover the actual speed that people drive." And so you always have those two competing view points and it's based on this idea that what is the threshold at which we actually feel the real limit is. But you're absolutely right that that's an enforcement issue and not a question of what the law says.

20:35 HC: And it's important because it sort of reminds us of how important those kinds of policies and rules about when you enforce a law actually matter in the application of a law. So you can have a law that says something, but if it's being only enforced in certain circumstances, then that becomes the norm, essentially, that the law carries.

20:54 MS: I guess what's really resonating for me through this conversation is the interconnectedness that law is a societal phenomenon. This judge is making decisions based on what society does and what society will bear, and society is kind of making decisions about what's kind of acceptable even though it's technically outside the law.

21:14 HC: Yeah, and then there might well be legislation being passed on this kind of topi, and I think again, what distinguishes judicial reasoning from other ways of dealing with this issue is that it's never starting from nothing in a way. Judges and how they make law, they make law incrementally, only in small steps, extensions of what's there already. Whereas a legislature could decide to rewrite, completely all the rules on driving, make-up completely different rules, and that's the prerogative of the elected legislature. But you're absolutely right that the judge isn't divorced from societal ideas of what's acceptable and what's not, and that's also where the law has to track those fairly closely in order to be of value really.

22:13 MS: And now we get to watch. We get to watch and see. Do people start citing this case?

22:19 HC: Exactly.

22:19 MS: Does it reverberate? Does it reverberate outside BC? Does it reverberate even outside Canada?

22:23 HC: Yeah, it's an interesting process because it is the start of a new legal rule that's now been put out there that may get extended, it may get cut back, it may be changed, it may be rejected completely by higher courts or other courts. There's really no saying where it's gonna go, but it's interesting in that it really is the common law in action; we're seeing it happen before our eyes with this case, how it evolves and how it changes over time.

22:50 MS: Right. Well, thank you very much, Hugo.

22:52 HC: Oh, thank you, Matt.

22:53 MS: Drive safe.

22:54 HC: You too.

[music]

22:58 MS: Thanks to Hugo Choquette. If you're curious about judicial power and the evolution of the law, Hugo delivers the basics as part of Law 201701, Introduction to Canadian Law. You can also take the deep dive with Law 205705, Public and Constitutional law, which gives you a full course on division of powers, citizens rights, and how our judiciary functions taught by Jonathan Shanks. You can learn more about these courses at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory...

23:35 MS: Our theme music is by Megan Hamilton, who's also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valérie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.

[music]

View Details

With tensions rising in the Persian Gulf, professor Chris Waters draws on his military experience to explain how water borders are defined -- and how multiple systems of definition can lead to conflict where both sides can be right in a territorial dispute. Chris is the instructor of Law 207/707, International Law.

If you enjoy the podcast, take a moment to subscribe! Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

[Intro]

Welcome to Fundamentals of Canadian Law

I'm Matt Shepherd. As comedian Steven Wright once said, "it's a small world, but I wouldn't want to paint it." The world's actually pretty big, which makes international law, by definition, a big subject. So we're fortunate to have Chris Waters teaching Law 207/707, International Law, in the Certificate in Law program. He's got a gift for breaking down complex issues in easy-to-understand ways. I've been grappling with recent headlines around drone conflict in the Persian Gulf, so I was grateful that Chris could stop by and unpack it with me. I also learned the word "sinuosity".

This podcast is also not legal advice and is being presented for informational purposes only.

Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.

[Interview]

00:00 Matt Shepherd: What has sparked your interest in international law? What brought you to us to teach this course in international law?

00:08 Chris Waters: Well, I'm a retired member of the armed forces, Canadian armed forces, and throughout my career I deployed quite often on exercise and operations overseas. And later in my career, I became a military lawyer. And in that role I had to advise the chain of command and the commanding officers on what the responsibilities and limits were when in foreign soil or crossing foreign boundaries, and that increased my interest in education. I did further education, and then I turned my attention, once I retired, to teaching. And here we are.

00:40 MS: And now you're here with us. So among the many things that you were instructing people on while you were with the military, you mentioned borders, and that's kind of the reason we're talking today is something happened in June. Iran shot down a US drone, and it's made international headlines. It's been in the news pretty much constantly since then. And just idly chatting with you a couple weeks ago, you told me some amazing things about borders that I wanted to kind get you to talk about now.

01:08 CW: Yes, and I would say it's an interesting incident because... Well, not just because it's being... Between two countries that are now in a state of tension, but also took part in a place in the world where borders are often contentious, and there are competing claims for sovereignty. And what struck me was that both countries, as is usually the case, made a claim that they're in the right. Well, can they both be in the right? And that's the question. Can a drone be in international airspace and domestic airspace at the same time?

01:43 MS: And clearly not, right? It's gotta be in international airspace or domestic. It can't be in both, right?

01:48 CW: Well, it depends on which nation claims which border and how they go about it. And I can explain that in some detail, but it's... Before we start, it's important to know that the drone is a weapon of war. And the drone in question was a reconnaissance drone which was seeking information, electronic or visual, from inside Iran. And the practice is to fly along borders with your sensors aimed into your opponent's country to gather all the intelligence you need. And it calls to mind, for those who remember the Cold War, the Russian trawlers sailing up and down the 12-mile limit off the East Coast of United States collecting intelligence, electronic intelligence. It's much the same but in a modern context.

02:35 MS: So it's kind of like the kids' game of, "I'm not touching you, I'm not touching you, I'm not touching you."

02:39 CW: Yes, and it's important to know that you can do certain things on the high seas or in international airspace which you cannot do in territorial water or in national airspace, and that's the key to this problem.

02:51 MS: So how does this idea of international space and domestic space... For what you're saying to be true, they have to overlap somehow, right? So how is that possible? How can the two of them stack on top of each other like that?

03:04 CW: Well, we have to go back to basics for that. And in international law, your boundaries are defined: Land, sea, and air by international convention or custom. Right now, you're talking about land and sea borders. Your territory over which you have complete control and sovereignty goes out to 12 miles into the water from your coastline from the lowest tide point. So you have 12 miles of turf, water, which belongs to you, which as a nation-state you can control for security, for environment, for trade and commerce, and that's where the problem begins.

03:54 MS: So I can go 12 miles from my lowest tide point out into the water and that's... Unequivocally, that's inarguably my territory?

04:03 CW: Yes, that is your territory. But there are different interpretations of how you measure the 12 miles, and that's why this incident has been claimed to be right by both sides.

04:14 MS: So how can this measurement differ? Twelve miles is 12... I'm a bit surprised it's not metric, first of all, but 12 miles is 12 miles is 12 miles, right?

04:22 CW: Not only that, it's 12 nautical miles.

04:24 MS: Okay.

04:25 CW: To do this, we have to do a little mental exercise. So close your eyes and pretend you're a seagull looking down at your nation's coast from above. Your coast is on the right and your water is on the left. You can see the ragged sinuosity of your coastline. And in normal situations, in international law, 12 miles from that point is your territorial boundary. Beyond that is the high seas, generally speaking, where there's freedom of navigation. Now also, for a control of airspace, the airspace boundaries follow the nautical and land boundaries. So you have to, as you're doing your seagull thing, raise your beak, look horizontally, and imagine a column of air rising above that 12-mile limit. Inside that is your national airspace. From there, you can control entry and egress, you can impose customs, security, defense, all those things that go with national sovereignty on any aircraft, friend or foe, coming into that airspace. Beyond the 12 miles is international airspace where, like the high seas, there's freedom of navigation.

05:42 MS: And at that point, you can put your sensors up and point them into that space, and you're not violating anything because you're not actually in the person's airspace.

05:50 CW: Correct. It's annoying to the country being surveilled, but it's not illegal.

05:54 MS: Right.

05:56 CW: So the difficulty arises in the different interpretation of the 12-mile limit. Now, there are two ways to measure. One is called the sinuosity method, where your 12-mile line exactly traces your coastline: The bays, the inlets, the promontories, the cliffs. And as a result, your baseline at 12 miles follows that exact profile. However, there's another approach. It's called the straight baselines method, also recognized in international law. And it says, you can draw a straight line from two points that jut out into the water to enclose a bay. So you can say that is now my territorial water because I drew the straight baseline from point to point enclosing that bay. Now, from a security point of view, that means your opponent cannot fly into that inlet to do surveillance or any offensive incident they wish to do. Think of Chesapeake Bay, Gulf of St. Lawrence, Bay of Fundy...

07:01 MS: So we're talking about bays that must, by definition, be larger than 24 miles across for this to make sense.

07:06 CW: Yes, well, there are limits, but not part of this discussion.

07:10 MS: Okay.

07:10 CW: But for the purpose of our incident in the Persian Gulf, it's important because depending on whether you take a baseline position or a sinuosity position, there is now a little area of gray zone which both sides claim to be either international airspace or national airspace. That's where the problem arises. Now, the Americans in the Gulf have, in recent past, taken the sinuosity view. They can sail to 12 miles from the coast of Iran, Iraq, and any of the areas there. Canada has a different approach. Canada has adopted the straight baselines approach and for a diplomatic and strategic reason: It's because we want to retain control of the Arctic Archipelago. And if we use the straight baselines method, it encloses all the islands around the Arctic, including the Northwest Passage, which means Canada can claim that to be sovereign territory and therefore control entry and exit into the Northwest Passage. Those who take the sinuosity approach or view it as an international seaway say Canada cannot control passage of international traffic through the Northwest Passage once it becomes clear because it's international transit.

08:25 MS: Because they're applying sinuosity and that doesn't... The sinuosity falls short of covering the entire space of the passage.

08:30 CW: Yes. Will let ships go through. And of course, ice is considered land when it's permanently frozen, but we're losing that advantage very quickly up there.

08:41 MS: So is there one approach that is... We've spoken about Iran's using the straight line, US sinuosity, we're using the straight line. Is there an approach that's winning internationally, is it... Are we ever gonna settle on one that's applied forever equally?

08:58 CW: Unfortunately, no. International law is like English grammar; there are as many exceptions as there are rules, so it's not a settled case. It depends... A nation claims a certain space. Canada has claimed the Arctic Archipelago, but it's just a claim. It has yet to be litigated in international court to say whether it's ours or it's international space.

09:20 MS: So what... There's... It's clear that there are two established and recognized systems for these boundaries, and it's clear that both countries... I don't know if you could say in good faith, I think there's a fair amount of animosity there, but they were definitely using legitimate measures of boundary. So do they just both eventually shrug and say, "Well, no harm, no foul," and go about their separate ways or...

09:49 CW: Well, I haven't heard what's going to be the outcome of this particular incident; it's gone off the news radar. We'll never know the true facts because they're obviously kept for operational security. But it happens all the while in conflict. We think about the shooting down of civilian airliners and mistakes made like that due to similar misunderstandings of international boundaries.

10:16 MS: I never knew any of this about international boundaries before. I thought things were just getting shot down and just kind of... It was too much fuss to do anything about it, and people just kinda let these things go.

10:26 CW: Well, interestingly, civilian traffic, civilian airliners are part of an international agreement: The Chicago Convention. They're not permitted to be shot down unless they pose a deliberate threat to the country. So there's freedom of traffic passage on the air routes for civilian airliners, but that doesn't guarantee their safety, as we saw from the Indonesia airline shot down in Ukraine a couple years ago.

10:52 MS: And there's other laws that affect things that pass through boundaries, so it could be important, I guess, for air travel to know where you're passing through, at what point, to make sure you're not violating any laws in transit.

11:03 CW: Yeah. And we have to be distinct between military operations, such as conducting surveillance, moving convoys, sailing through international straits with warships and submarines, than innocent civilian commerce or passenger traffic 'cause the rules do differ.

11:19 MS: Just getting a bit trivial, what happens when countries are separated by a body of water that's less than 24 miles wide?

11:26 CW: You meet in the middle, like lake Ontario.

11:28 MS: Right, just... You divide straight line down the middle?

11:31 CW: Yep.

11:31 MS: Or is it a sinuous line down the middle?

11:34 CW: It depends on the agreement between the nations.

11:35 MS: Okay. [chuckle] Boundaries are complicated.

11:39 CW: Well it... I'm glad you said that because if you think of the Northwest Passage, you may recall that Nixon negotiated an agreement. We agreed to disagree, between the US and Canada, about the use of the Arctic. They're gonna say, "Okay, we'll use the transit, but we'll inform you and you can monitor our progress."

12:00 MS: And we'd rather they just didn't.

12:03 CW: But it's an international agreement. It's a peaceful resolution, it's a compromise, and so far has worked. What we can't control, well, not yet, is the submarine passage, submerged submarines.

12:14 MS: Right.

12:15 CW: But surface traffic is easy to monitor and control with our surveillance up in the north.

12:19 MS: Chris, international law is super interesting.

12:22 CW: It is. It's fascinating, and it's a huge topic. And what people don't realize is that every time they pick up a paper or check their newsfeed on their handheld, there's something about international law. And we don't think about it, we don't think about the foreign airliners passing over us on the way to Toronto, we don't think of driving across the border to go to Watertown or whatever, but it's always there lurking in the background.

12:45 MS: Fascinating. Thanks so much, Chris.

12:47 CW: Very welcome.

[Outro]

Thanks to Chris Waters. International Law is a huge subject, including warfare, sovereignity, and much more, and we cover the essentials in Law 207/707, International Law. You can learn more about it at takelaw.ca.

Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional [A NISH IH NAH BAY] and [HOE DEN OH SHOW NAY] territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law! You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com.

Thanks for listening.

View Details

Content warning: this podcast contains graphic details that may be disturbing to listeners.

Professor Lisa Kerr discusses a unanimous Supreme Court of Canada decision in May ordering a new trial for Bradley Barton, the Ontario trucker accused of killing Indigenous woman Cindy Gladue, including details of the split Court decision, the Court's decision as a state of the nation for sexual assault in Canada, and the importance of external parties in these kinds of cases. Lisa Kerr is the creator and instructor of the Criminal Law module of Law 201/701, Introduction to Canadian Law.

If you enjoy the podcast, take a moment to subscribe! You can find out more about criminal law in Canada by taking Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

Welcome to Fundamentals of Canadian Law

I'm Matt Shepherd. I'm joined this week by professor Lisa Kerr, the creator of our Criminal Law module in Law 201/701, Introduction to Canadian Law. We're going to be talking about a difficult subject: a unanimous Supreme Court of Canada decision in May ordering a new trial for Bradley Barton, the Ontario trucker accused of killing Indigenous woman Cindy Gladue. We'll be talking about that decision, and a split between the justices on whether Barton should face trial for manslaughter or first degree murder. As Lisa describes it, this decision is also an opportunity to explore and explain the current state of sexual assault law in Canada as well.

This podcast contains graphic details that may be disturbing to listeners.

This podcast is also not legal advice and is being presented for informational purposes only.

Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.

00:00 Matt Shepherd: So we should start this with a content warning.

00:03 Lisa Kerr: We should, yeah. We're about to talk about a very difficult, a very troubling case in terms of the facts, it's a case that involves the death of an indigenous woman in very distressing circumstances. And so some of our listeners might want to decide whether this is the right show for them to listen to.

00:26 MS: Right.

00:26 LK: Yeah.

00:27 MS: So we are talking about the Supreme Court, and we're talking about the Barton case and a very recent decision that came down that's essentially saying that there's going to be a new trial for manslaughter.

00:36 LK: Exactly. So let me just see if I can introduce the victim in this case. So, Cindy Gladue, as I said, was an indigenous woman. She was a woman with links to Cree and Métis communities. She grew up and lived on the homeland of the Métis and of Treaty 8 and Treaty 6 territories. And she was a mother of three children, a daughter, a sister, an aunt, a cousin and a friend. And I'm quoting here from the factum of the Institute for the Advancement of Aboriginal Women and Women's Legal Education and Action Fund, the LEAF factum that was filed in this case. And those were just two of the interveners that had a major impact on how this case was litigated and ultimately addressed in the appellate courts. So what happened to Miss Gladue is that she met the defendant, in this case, Bradley Barton and on an evening that they spent together in a hotel room in Edmonton, Miss Gladue died from loss of blood, and that was caused by an 11-cm cut on the inside of her vagina.

01:49 LK: And the Crown's theory at the trial was that Mr. Barton had caused that wound and that he'd done that by using a sharp object or weapon on Miss Gladue and that when he did that he had intent to kill. And so this would have amounted to murder and that murder would have been classified as first degree and would have been subject to a mandatory life sentence with 25 years before parole. Now the Crown at this trial also said in the alternative that Mr. Barton had committed the lesser, an included offense of unlawful act manslaughter. So that's basically causing death in the course of the sexual assault and Mr. Barton winds up acquitted of both murder and manslaughter and there is by his own evidence, he had sex with Miss Gladue in that hotel room. By his own evidence, he used his hand very aggressively on her and that caused bleeding and he said that she went into the hotel bathroom and that he then fell asleep and that he found her dead the next morning in the hotel bathroom.

03:07 LK: Now, of course, we'll never hear from Cindy Gladue, her own version of events from that evening, but we are left with a number of questions about what happened and ultimately Mr. Barton's acquittal was appealed and both the Alberta Court of Appeal and the Supreme Court of Canada have said that a new trial is warranted. The majority of the Supreme Court would limit the new trial to just the manslaughter charge, and the dissent would have allowed Mr. Barton to be retried on both murder and manslaughter. So there are many, many legal issues in this case and there are many people with a great deal of expertise on the case and so I'd really recommend to listeners who are interested in learning more, to go to the Supreme Court of Canada website, look up the Barton case, read the full opinion, and look at the factums that were filed. You can go and click on those and read through them. There were just... There was extraordinary work done here by interveners. Groups like the Aboriginal Women's Action Network, the Women of the Métis Nation, the National Inquiry into Missing and Murdered Indigenous Women and Girls filed a factum. As I said, LEAF had a major impact in this case. And so, all of the materials are there for you to read and learn how this very unusual and very distressing case happened.

04:32 MS: So you've mentioned it's an unusual case and you're not only the creator and instructor of the criminal law module in LAW-201, but you also teach criminal law to law students here at Queens and you mentioned you want to make this case... You wanna organize your criminal law class next year around this case. Why this case in particular?

04:52 LK: I do and you know, I'm sort of of two minds. On the one hand it's so distressing the facts of this case that it might be challenging to think about this case over a long period of time with my first year law students. On the other hand, there are so many important structural systemic issues that this case reveals. So we know and talk a lot about how indigenous people are over-represented in our prison system. Right? We know that but what we sometimes know less about although I think we're in the process, especially with the final report of the Inquiry on Murdered and Missing Indigenous Women coming out in recent days, we're learning more about how the criminal justice system doesn't just over-punish indigenous people, it also under-protects them. And so this case shows us how Miss Gladue was sort of not only under-protected in terms of what may have led to her death, but also under-protected in the course of the trial. So there were failures in my opinion, by each and every legal professional that was involved in this case and I mean to include the Crown prosecutor, the trial judge and defense counsel.

06:12 LK: There were, and this is really largely recognized by the Supreme Court of Canada, failures in the substantive law and how the substantive law of sexual assault was handled, failures in how the victim and the victim's family were treated, failures in the jury instruction, and although this issue wasn't discussed by the Supreme Court, there were in my view failures in how evidence was handled in the course of the trial. So there's a lot to learn from this case in terms of how to advance reconciliation in the context of the criminal justice system, but it's also a case that teaches us a lot about criminal law and especially about the law of sexual assault and many of the important reforms that we have implemented in recent decades in order to sort of bring the law of sexual assault from a largely misogynistic and sexist treasure trove to a modern feminist dignity respecting law of sexual assault.

07:17 MS: And a lot of this relates to what you are or are not allowed to say about people during a trial, correct?

07:25 LK: Yeah, so the really big issue that's at the core of what the majority does in its decision, what Justice Moldaver does in his decision is on this issue of what's called the rape shield provisions. So the rape shield provisions are found in Section 276 of the Criminal Code and basically these are rules that govern the admissibility of evidence about a complainant's prior sexual activities. So what that means is you can't just go into a court and talk about a complainant's sexual past. And you kinda have to turn your mind back to this sort of misogynist sexist past of sexual assault law, when cases would be litigated by referring to the fact that a complainant was not a virgin, by referring to the fact that she had had sex with this man before, and that that was somehow relevant to whether she had consented on this occasion. I mean, all kinds of stuff you'd be shocked about, if you read sexual assault cases from really the bulk of the 20th century and before. So what section 276 says is, you cannot rely on evidence of... It's not... You can't admit evidence of a complainant's prior sexual activity if you're going to use it to support a forbidden inference.

08:44 LK: And so there's two of these forbidden inferences that are set out in 276. Basically, you can't say that sexual past is relevant to whether she consented, and you can't suggest that it's relevant to whether she's worthy of belief, to whether she's credible. Those are called the twin myths. And those apply sort of irrespective of which party leads evidence, and it's categorical. Now, there are times, there are rare instances when the past sexual activity of a complainant might be relevant, in very narrow ways, but you can't just bring that evidence in without getting a judge's permission in advance. So that's called a Section 276 hearing, and you have to go in front of the judge and say, "Yes, I wanna refer to this. I wanna refer to her, typically her, right, sexual past. But I wanna do it for a narrow legitimate reason that is not in support of one of these so-called rape myths."

09:41 MS: That did not happen with Barton, which is one of the things that Supreme Court takes issue with.

09:46 LK: That did not happen. What happened here is there were some, in my view, mistakes on both the part of the Crown prosecutor, and defense counsel. The Crown prosecutor, in its opening statement, referred to the fact that Ms. Gladue had met Mr. Barton the night before for paid sex. So they referred to that, instead of thinking, in what way is their prior sexual history, which was not much of a history, it's just one night before that they'd met one time. Why am I referring to that? How is it relevant to the question of whether she consented on this night? Nobody paused and asked those questions and that is what section 276 is supposed to make us do. Now, so that was a fairly light reference in the opening statement, but defense counsel sort of took that slightly open door and opened it even wider. And Mr. Barton, in his testimony, as Justice Moldaver put it, really flooded the jury with testimony about his sexual experience with Ms. Gladue the night before her death.

11:03 LK: So let me tell you a little bit about that evidence that Mr. Barton gave in his testimony and this is really what the Supreme Court was focused on in terms of what it said was inappropriate, absent to section 276 hearing. Mr. Barton gave evidence that he and Miss Gladue agreed on a price of $60 for "everything" on the first night, that they agreed on the same price on the second night. And that "she knew what she was coming for." Mr. Barton also testified that he considered the two nights as forming part of the continuing commercial transaction, that's his evidence, was supposedly similar sexual activities occurring on both nights and further, Justice Moldaver says, defense counsel stressed that "she's a prostitute, and she's consenting to the sex," and that there were "no groans of disagreement, in fact, only groans of agreement, and there were no signs that she was in disagreement, he reasonably believed she was consenting." Those are the submissions of defense counsel. Now, two big problems with that. One, there was never a 276 hearing, and there should have been. This was just material that we just asked the defendant about and that he testified about in front of the jury without ever pausing and saying, "Is this prior sexual activity from the night before, is it appropriate evidence given 276?" Second, those submissions that defense counsel made, that Justice Moldaver said were based on multiple errors of law.

12:42 LK: And so to unpack that a little bit, I need to talk a little bit about the difference between a mistake of a fact and a mistake of law. In a sexual assault trial, a defendant occasionally says, "I thought she was consenting." Maybe the defendant even says, "I understand now that she wasn't, but I had an honest but mistaken belief at the time that she was consenting," and that was part of his defense here. And that's basically suggesting that you didn't have mens rea, that you didn't have knowledge of an essential element of the offense, namely a lack of consent. And that can be a defense in our system, there are a number of important limits on it in the criminal code, but that can be a defense, and it's a mistake of fact defense, right? You are mistaken about a fact, the fact of whether she was consenting. So that can, in some circumstances, be a defense that can lead to acquittal of sexual assault. And in this case, it would mean that he did not commit manslaughter. But you are not allowed to build a defense like that based on a mistaken understanding of the law, right? The old saying, "Ignorance of the law is no defense."

13:56 MS: Right.

13:56 LK: This is an instance of that. And if we think back about those arguments the defense counsel made in closing submissions, right? Defense council stressing, "She's a prostitute, she's consenting. There were no groans of disagreement, there were no signs she was in disagreement." Those kinds of arguments were based on mistakes of law. And there were three main mistakes of law that the majority pointed to: The first was the notion of implied consent, and this goes back to a really important case in this area called Ewanchuk. And Ewanchuk basically said that... So for many years in the law, there was a requirement that a woman would resist forcefully a sexual assault. That was actually required. Utmost resistance. If she didn't fight and kick and scream and try to run away, then the law said she was not sexually assaulted.

14:52 MS: What?

14:52 LK: Yeah.

14:53 MS: Wow! Okay.

14:53 LK: Yeah, yeah, that's what I was talking about when I said it was a misogynistic and sexist area of law for many decades.

15:00 MS: Right.

15:01 LK: That... Oh, and it's really based on the notion of what a US scholar, Susan Estrich called "real rape." There's this notion that a real rape victim fights back, she screams. Now, we know that's a very erroneous understanding of how sexual assault actually happens and that many people will freeze in fear and will be silent in order to try and preserve their life out of fear. And so what Ewanchuk said and held was that implied consent or passivity as consent or a lack of disagreement as consent was not consent, that the only kind of consent that is valid in Canada today is communicated consent, right? Affirmative consent through either words or action, it has to be affirmative. So passivity, silence, a lack of disagreement is not consent. And so Justice Moldaver saying the defense was pointing to some notion of implied consent, and that was wrong. The second mistake of law that the defense was premised on it was the notion of broad advance consent, right? This notion that there was some kind of continuing transaction between these two from night A to night B. That is not how consent works. I can consent on day one, that doesn't mean I'm consenting on day two.

16:24 MS: Right.

16:26 LK: And so that's a mistake of law, to suggest that they did something on Friday night and that means that he could do it again on Saturday night. That's obviously wrong. And then the third mistake was the notion of propensity to consent. So the law today prohibits the inference that a complainant's prior sexual activities make it more likely that she consented to this sexual activity. And I think this suggestion that she consented to whatever Mr. Barton said she consented to on night one meant that she had a propensity to say yes again. This is also false. You... So you... People can... And we don't... I mean, we might disbelieve him, that she consented so clearly on night one. But even if she did, it means nothing in terms of whether she consented on night two.

17:24 MS: Right.

17:25 LK: And again, if you look back in the history of the law of rape, there was a rule, and this was built into the legal doctrine, that it was an element of the offense that the victim is not your spouse. What is that all about? Well, that meant that a man couldn't rape his wife. The spousal exception was this notion that wives are in a permanent state of consent with respect to their husbands. And so it's this notion, right? That the modern law of sexual assault is all about, "Did this person consent on this occasion to these activities, right?" So the notion... "And did they affirmatively consent?" You don't have to fight back, you don't have to not be the wife of the defendant. There's nothing about you as a complainant, whether you're a sex worker, whether you're a virgin, any of these things are not relevant to that enquiry about: A, whether you consented, or B what whether the defendant is able, in those circumstance, to advance in a mistake of fact defense.

18:35 MS: This is all coming back to why this entire rape shield concept is so important. Why references to someone's past history aren't relevant or necessary in court when you're trying these kinds of cases.

18:47 LK: Right. Well, I think there could be some limited circumstances within which we might want to refer to past experiences between a complainant and an accused. I don't wanna say that door should be fully closed, but there should be a 276 hearing so that the trial judge and council can have a moment to pause and reflect and make sure that the reason they're reducing this evidence is an appropriate one and it's not one based on a discredited rape myth.

19:17 MS: So let's talk about the descending opinion, because there was a majority opinion, which is a new trial for manslaughter, but there is also Supreme Court judges who are descending on this.

19:25 LK: Right. So, Justices Abella and Karakatsanis dissented here. And they agreed with the majority judgment about the need for a new trial on manslaughter. They agreed with the majority about the problems of the defense, in terms of the sexual assault issues and the lack of a Section 276 hearing. So there's agreement on all of those issues from the entire court. What the dissent would have done differently is they would have also ordered a new trial on the murder charge. Basically remember that the issue of whether this was a murder as opposed to man-slaughter, turned primarily on this issue of expert evidence about the cause of the wound. So the crown brought in an expert who said, "This 11 centimeter wound, I think was caused by an object." That would have meant if you accepted that expert's evidence, that Mr. Barton used a weapon.

20:23 MS: Right.

20:23 LK: And when you use a weapon in that way, it's obvious that you would have either intent to kill, or an intent to cause serious bodily harm, knowing it's likely to result in death, and that is the mens rea for murder. This would have also been a murder committed in the course of a sexual assault, that makes it murder in the first degree.

20:43 MS: Okay.

20:43 LK: So the most serious kind of crime in our society. And the majority wanted... So I think the majority said, "Well listen, that issue of whether the jury believed the expert... Found the expert evidence to be convincing that's sort of a separate issue than these other errors I've pointed to with respect to how sexual assault was handled." So, the majority said, the acquittal for murder can stand because that was just a matter of a jury disbelieving an expert and that's... Nothing inappropriate happened there. And that's the appropriate function of a jury to decide, make findings of fact in that way. What the dissent said was... What went wrong at this trial was really more than the mishandling of these issues of consent.

21:38 LK: And what went wrong here really permeated or infected the entire proceeding. And so what were they talking about? Well, there were not only unrestricted references to the victim's sexual history in this case. There were also multiple... Dozens of occasions where the Crown and defense counsel referred to Miss Gladue as a "native prostitute." And the judge gave no specific warning to the jury about that, so never explained to the jury anything about why was she being referred to that? In that way? What was relevant about the fact that she was someone who had done sex work, or that she was an indigenous person. What was relevant about that? In truth, nothing. And yet she's referred to in this way. And of course, I think, at this point in our history, many of us would think of native as an inappropriate word as well.

22:36 MS: Right.

22:36 LK: Many of us think of prostitute as an inappropriate word. So we've got this almost slur that's being used against her, by the legal professionals in front of the jury. So I think there's a sense that that left a real risk that the jury was gonna draw prejudicial and stereotypical assumptions about indigenous women who are working in the sex trade. As they decided not only the manslaughter but also the issues they had to decide with respect to murder. So the dissent said that there were sort of devastatingly prejudicial effects from these phrases that were used and the trial judge's failure to address those phrases. And that the effects of this error that we can't sort of neatly cabin off the effects to just the manslaughter charge, that they must have infected also the jury's reasoning with respect to murder.

23:27 LK: And I think... I said at the outset, and it's worth repeating that this is another aspect of this case that's very unusual is the extraordinary contribution that interveners made in this case. And now that we've talked about it a bit, you can really understand that the Crown and defense and trial judge in many ways, failed to protect the interests of Cindy Gladue. And legal issues really weren't argued properly at the trial, evidence wasn't handled properly, the jury wasn't instructed properly, and so that leaves a real vacuum in our system. It's really the crown prosecutor who's supposed to be sort of protecting the interest of victims and sort of seeing justice be served, and the trial judge has a role to play and there's ethical obligations that bind the defense, as well.

24:14 LK: And so there were problems with all of that and so what that meant was that in order for the appeal to be done properly, you really needed interveners more than you usually need interveners. To come and make those arguments on behalf of Miss Gladue in ways that the Crown really couldn't. 'Cause the crown hadn't made those... Hadn't done things properly either. And so, groups like LEAF, groups like aboriginal legal services, you know these groups they show up unpaid, uncompensated, do this work, many academics volunteering their time, many community leaders volunteering their time, in order to ensure that the appropriate legal arguments get in front of our appellate courts and this trial gets corrected. And so... And when you read the final decision from the Supreme Court of Canada, you don't necessarily see that labor, and the trauma, and the labor and everything else that these people took on in order to make this contribution to this case. And so it's really worth remembering the contribution and the analysis and the argumentation and the insight that many of those groups brought to this case are all over the majority opinion.

25:21 LK: Both in the Alberta Court of Appeal decision, and in the majority and dissenting opinions of the Supreme Court of Canada. So these groups made an extraordinary contribution. And so, I'll just refer in closing to the argument that was made by Jonathan Rudin and his colleagues at aboriginal legal services, they talked about this issue of how Miss Gladue was referred to as a "native prostitute." And at one point, this was a very compelling submission, and I showed this argument in my class 'cause you can watch the webcast of the Supreme Court of Canada hearings. And I showed this argument being made in class, and it was really powerfully done.

26:00 LK: So, aboriginal legal services said this, "In this case the identity of Miss Gladue was not in question. Therefore there was no need to refer to her by anything other than her name. Repeatedly describing her as native would suggest to the jury that there were something about her background that was relevant to the case, but the jury was never told what that was. And this leads to the problematic outcome, that the jury was left to ascribe whatever meaning they wish to her description without guidance from the court." So I think that submission was very much I picked up on in the majority, to a degree, but certainly by the descent in terms of these really problematic references and yeah. So as I said, it's a difficult case to talk and think about, but I feel for Miss Gladue's family having to return to a trial court now. You know, Miss Gladue was... Died in 2011. It's now 2019, and they're headed back to trial. So I think it's... I think there's been incredible work done in the appeal context here by both judges and counsel and community leaders, but it's hard even in the face of that incredible work to say that this case was really anything but a failure.

27:23 MS: Well, thank you for taking the time for this today.

27:26 LK: Thank you.

Thanks to Lisa Kerr. Criminal law is one of many modules in Canadian Law, Law 201/701, Introduction to Canadian Law. If you're interested in the connections between Indigenous people and the law in Canada, you may want to look into Law 202/702, Aboriginal Law, taught by professor Hugo Choquette. You can learn more about it at takelaw.ca.

Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law! You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com.

Thanks for listening.

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It's springtime, and "for rent" signs are blooming right along with flowers across Canada. What do tenants need to know about renting and the law (and what should landlords know)? We get into the details with Blair Crew, director of Queen's Legal Aid, building on notions explored in Law 201/701, Introduction to Canadian Law. The Queen’s Law Clinics gratefully acknowledge the support of Legal Aid Ontario, the Law Foundation of Ontario, Pro Bono Students Canada, the class of Law’81, the United Way, and alumni and industry sponsors.

If you enjoy the podcast, take a moment to subscribe! You can find out more about property law in Canada by taking Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

[Intro] Welcome to Fundamentals of Canadian Law

I'm Matt Shepherd. Spring is in the air, and "for rent" signs are blooming along with flowers across Canada. Students are signing leases -- and setting up sublets -- so we sat down with Blair Crew, the Director of Queen's Legal Aid, to get the whole picture of landlords, leases and the law. Whether you're signing a lease, subletting an apartment, or seeking new roommates, there's a lot you know know about the law.

We should mention that this is not legal advice and is being presented for informational purposes only. And that this was recorded in April of 2019, and the law is subject to change.

This podcast is brought to you by the Queen's Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca

[Show]

00:00 Matt Shepherd: I'm here with Blair Crew, who is the Director of Queen's Legal Aid which is located in downtown Kingston, and is part of Queen's Law School. This for me, it's a build out a bit of things I learned in the Property Module in Law 201, taught by Dean Bill Flanagan. And in that module, we get a bit into landlords and leasing and rentals, but we're gonna get into that, especially since we're in Spring and Summer right now, we're gonna get into that in a bit more depth.

00:24 Blair Crew: That sounds great, thank you for having me on the podcast.

00:27 MS: Leasing is something that sort of happens at a provincial level. I used to live in Quebec, and I recall that they had fairly... At one point, they had fairly stringent rules that you had to have leases that ended on July 1st, which meant there was a peak moving season. So my understanding from that moving forward, is that every province kind of sets its own rules for landlords and leasing.

00:47 BC: That's right. Leasing is really a development of common law, where a landlord who has a bundle of rights, as often we talk about property rights, will by contract, take a portion of those rights or some sticks from the bundle, and pass them on to someone else for a limited time. The best known model, of course, is a person that owns a building that wants to lease it out to someone that's going to rent for a while as a tenant. Property and civil rights in a province is a matter of provincial jurisdiction under the constitution, so that means that each province is free to legislate however it sees fit, over top of what the common law says.

01:30 MS: And so we're located in Kingston, Ontario, so we're gonna be talking pretty specifically about stuff that's happening in Kingston and stuff that's happening in Ontario, but with the exception of Quebec, can we kind of take it as a given that things are fairly similar across the country? If someone's listening in Manitoba or BC, can they expect kind of the same things to apply?

01:49 BC: Every province is going to be governed by its own equivalent of the Residential Tenancies Act, but all of the common law provinces have enacted legislation that regulates residential tenancies, and by and large, those generally follow a similar model. Now, there may be individual rights or individual peculiarities that apply to one jurisdiction but not another. And I wouldn't wanna touch upon what happens in Quebec. But apart from that, generally, many of the rights that have been created by statute are similar from province to province.

02:19 MS: Okay, so let's talk about leasing. I am... You're the landlord, I'm a student or another person, you have a property, I want to live in it. Kind of what happens at that point legally?

02:30 BC: So the landlord and the tenant will agree together on what the terms of that lease are going to be, and one of the peculiarities of Ontario is as of April the 1st 2018, the government has mandated that there is now one standard residential lease form, and the purposes of this was really to educate both landlords and tenants as to their rights, because there was a lot of poor understanding. I think people have a very common law feel for what they can and cannot do, and there are so many individual rights that are given or are limited, depending on your perspective, under the Residential Tenancies Act that finally the government said, "Let's just make the obligations on both sides clear to everybody by having a standard form lease, which is mandatory for all new tenancy agreements."

03:22 MS: So that's been since... Essentially, it's been about a year now since that was introduced. And so now there is just one set of obligations on both sides.

03:32 BC: That's correct, and I think that anybody that is coming to sign a new lease, or is beginning University, or is moving to a new town, they are going to be confronted with the realities of that standard lease form that set out all of the basic rights and obligations. Now, there is room for an individual landlord and tenant to make a contractual arrangement for added provisions, but one of the fundamental premises of the Ontario Residential Tenancies Act, is that you cannot contract out of the Act. Meaning, if there is a provision that is provided in legislation, that's not a matter of individual negotiation between the landlord and tenant.

04:11 MS: Right. So one of the things that comes up, or something that comes up fairly frequently, is this idea of kind of landlord rules or house rules. The classic example from old films is a woman in a boarding house can't have any gentleman callers. So do landlords have the right to actually create these kinds of provisions?

04:30 BC: So outside of the stuff that's legislated, landlords do have the right to create individual provisions, but one of the fundamental things that landlords can't do actually is limit the number of people that live in the house or who is permitted to have guests. Every tenant, one of the things that landlords fundamentally often don't understand is that when they are renting out the place, by and large, they are giving up, for a period of time, the majority of their rights to that place. And one of the things that they can't limit is a person's ability to have guests over. And that could be short-term or that could be long-term.

05:06 BC: Landlords may sometimes say, "Yes, but there's five people there instead of four, so it's using more utilities. That's why I wanna restrict it." The landlord would be free to say, "If you have an additional guest for a period of time, I may charge more for utilities," if that's the landlord's responsibility. But one of the things the landlord can't do under the legislation, is say who somebody is allowed to have over. So that classic example would no longer be something that the landlord could do. On the other hand, there are no provisions in the Residential Tenancies Act about whether or not you can make a building a no smoking building. So if an individual landlord wants to include a term that says this building is smoke-free, the landlord and tenant can agree to that as a term of their contract.

05:50 MS: One thing that comes up a lot is non-human guests. So can a landlord say yes or no to pets?

05:57 BC: Non-human guests are often one of the biggest concerns, and I think from a landlord's point of view, there's a large concern because they're going to, if the cats scratch up everything, or if it's a dog gonna leave a mess all over the place. One of the provisions of the Ontario Residential Tenancies Act, and this is not universal amongst all the provinces, is that a "no pet provision" is void. So even if it's there in the contract, or even if the landlord feels that they can negotiate that as an individual aspect, that's one of those provisions that contravenes the Act, and it cannot be enforced.

06:30 MS: Okay, so...

06:31 BC: So you're free to have your cat or dog as much as you want.

06:34 MS: So let's talk about the evolution of this idea of guests. Because that extends into something that's of immediate concern to a lot of students as the summer approaches, which is sub-letting. And not having a guest on the property, but basically having someone there in your place probably paying the rent to you, the tenant, and then you turn that money in exchange over to the landlord. What are the rights and obligations of someone who wants to sublet an apartment?

07:00 BC: So at Common Law, the rights were very, very, very open-ended, and both what the landlord and tenant can do or not do by way of sub-letting is one of the areas where there's many provisions in the legislation. So when a person sublets, when a tenant sublets, basically, it's as if the tenant is now passing on some of the individual rights that they have received from that bundle of rights to a person that hold through a contract through them. So it's like a second level contract. When you sublet though, you don't do anything to extinguish the obligations of the tenant. So the tenant and the sub-tenant can agree to any rent that they want, the legislation says that can't be more than the rent that the tenant themselves is paying. So that puts an upward cap on how much they can charge. The legislation also says that a landlord cannot un... That a landlord needs to consent to the sub-tenant, but cannot unreasonably withhold that consent.

08:01 BC: So if a tenant comes to a landlord and says, "I'll be gone for the summer, but here's a graduate student that will be in town for the summer. I'd like to sublet to them," the landlord cannot unreasonably refuse that. But if the sub-tenant then subsequently trashes the place, or doesn't pay rent to the tenant, that in no way relieves the tenant who has sublet from their obligations. So when you choose to sublet, you're still really retaining responsibility for the tenancy yourself, and if anything goes wrong with your sub-tenant, that's a matter between you and the sub-tenant, your obligations to landlord still survive.

08:38 MS: So it doesn't feel like there's a difference here between whether you inform the landlord or not; informing the landlord is obviously probably a good idea and a polite thing to do, but it doesn't remove any obligations from the tenant if they tell the landlord what's happening, saying, "Hey, I'm sub-letting this place," doesn't remove any obligation from me as a tenant, I still assume all the obligations I normally would.

09:00 BC: That's correct, and so... And because there's no relationship, no contractual relationship between the sub-tenant and the landlord individually. Now, the law recognizes that landlords may want to know who it is that's residing in their premises, they wanna make sure that this is a person that's allowed to stay there, and not someone that's breaking in and stealing your stuff, for example. They may wanna know who's been provided with a key to the building. So that's why the legislation says that the landlord... You need landlord consent to sublet, but that the landlord cannot withhold that consent unless there's a really strong reason, such as, for example, the landlord finds out that this sub-tenant had trashed three previous places, or something of that nature.

09:42 MS: Right. So the key takeaway for me in this is, a student shouldn't be concerned about telling their landlord that they're going to sublet, because the landlord can't unreasonably refuse unless there's a very good reason to do so.

09:54 BC: That's right. And really, the idea of sub-letting too is that the tenant is usually going to resume their tenancy when they come back in the Fall.

10:02 MS: Right.

10:02 BC: So you don't wanna do anything to extinguish your rights, otherwise, you shouldn't be concerned. The legislation does give the tenant the right to terminate the tenancy altogether if they come to the landlord with a sub-tenant and the landlord says, "No, I refuse to do that, or I will never allow a sublet." But that's not always in a student's interest 'cause often they want the place back when they come back.

10:25 MS: Right.

10:26 BC: I'd also like to mention something about the notion of joint and several liability. It's very common in university towns, and I think the new form of lease, because there's spots for multiple tenants on it, lends itself to this, that instead of the landlord having an individual lease, say, for a room with each tenant, it's common for four or six tenants, particularly in Kingston where there's lots of nice old houses around, to have a single lease document where all four or six tenants will sign together. When you create a tenancy together with four or six, or one or two, I mean, or two signatures together, that creates a relationship of joint and several liability.

11:10 BC: What effectively means is that each of those tenants is responsible to the landlord for the full obligations of the contract. In theory, if one of the six tenants were not to pay their share of rent, the landlord is free to come to the other five tenants and say, "Hey, your sixth tenant didn't pay up. I want you guys to split that amount up," or even to pick on one tenant that they perceive to have deeper pockets and say, "Hey, this is a joint and several contract, you are fully responsible for the full amount. So I'm gonna come after you for the amount that your other co-tenant didn't pay." Similarly, if there is damage caused by any one of the people that is on that contract, typically, landlords will do a move-out inspection at the end, if that happens and they find damage, the landlord is free to sue all four or six individuals, how many ever there are, or is free to sue only one. And even if somebody else caused the damage, in law, you could be responsible for it. So it's something I always think is worth while for students to know.

12:14 MS: You gotta pick your roommates carefully.

12:16 BC: Absolutely, and there are an awful lot of times where relationships start out great with roommates and they sort of go badly. And there are services available to the Queen's University that will help you to mediate those co-tenant disputes before it gets to the stage of involving the law.

12:34 MS: Actually, since you mentioned the landlord walk-through upon the end of a tenancy, is first and last legal in Ontario?

12:42 BC: Yeah. The only amounts that a landlord can charge by way of what they used to call a security deposit is charging a first and last month's rent. Now, first month's rent is literally to pay for the first month of the tenancy, the other deposit can be no more than the last month rent deposit, the landlord must pay interest on it at a rate that is prescribed by legislation every year, and it must be applied to the last month's rent. So the notion of a damage deposit, that's something that is precluded by Ontario law. The only other amount a landlord can charge up front would be a key deposit, it must be a refundable deposit, and that can be no more than the actual amount that it would cost the landlord to replace the keys.

13:24 MS: We're referring to the legislation a lot. It's easily accessible, right?

13:27 BC: Yes, it's the Residential Tenancy Act, and it's available through e-laws. Also, the Landlord and Tenant Board of Ontario, which is the specialized tribunal that has jurisdiction over most landlord-tenant disputes in Ontario, has excellent information on their website, and including self-help guides and an explanation of the law, as well as link to all of the relevant legislation and regulations.

13:53 MS: And this is all very accessible and understandable stuff. You can read this, and it's not... This isn't lawyerese, it's not very opaque, it's all been put in a format that's pretty easy to parse.

14:03 BC: Yeah, the legislation itself is still legislation, and sometimes legislation is drafted in a way that could be clear certainly, but part of what the Landlord and Tenant Board website does is try to put it into plain language, and that's something else that they've really emphasized with the new standard lease, is that it's a plain language lease, and all of those old causes that repeat everything and have Latin phrases and phrases repeated in triplicate, that's all done away with now.

14:35 MS: Right. So if I wanted to sublet, would it be in my interest even informally to try to get some sort of contract in writing between myself and the person I'm sub-leasing to?

14:45 BC: It's always... So if you are now effectively in the position of the landlord vis-a-vis your sub-tenant, so it's always a good idea to get a written agreement as to what the contractual obligations are. Now, the Residential Tenancies Act has very little, very few provisions about that, apart from the fact that you can't charge more rent. But for example, we talked before about a landlord that would have a no smoking rule. You'd wanna make sure that in your contract with your sub-tenant, you're repeating that rule, otherwise you will be violating your obligations to the landlord. You may also wanna put provisions in there that specify that the sub-tenant would pay for damage if any is caused, or that if the landlord subsequently comes back and alleges that the sub-tenant caused damage, that that's something that the sub-tenant will make the tenant whole for. It's much better to have it in writing, because that relationship is one that is much more contractual in nature than property in nature, and you wanna be able to prove to the small claims court, which is where there would be jurisdiction over this, if there's any dispute about what the obligations were.

15:55 MS: So what can you do if you get into trouble, if something goes wrong with your sub-tenancy and so on, where do you go to kind of seek help with these sorts of issues?

16:05 BC: So one of the difficulties with the sub-tenant is that the Landlord Tenant Board itself doesn't have jurisdiction over sub-tenancies. So if you need a legal remedy as against the sub-tenant, you're ultimately going off to the small claims court. That said, you'd wanna find some legal advice, and legal clinics, including Queen's Legal Aid, would be happy to assist in some of those disputes, just to help explain what your rights are, and what your remedies from there are, if something has gone wrong.

16:38 MS: Excellent, and let's hope nothing does.

16:40 BC: Let's hope not.

16:41 MS: Thank you, Blair.

16:42 BC: You're very welcome.

[Outro]

Thanks to Blair Crew. Property law, including landlords and leases, is part of our "sampler tray" of Canadian Law, Law 201/701, Introduction to Canadian Law. You can learn more about it at takelaw.ca.

Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law! You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com.

Thanks for listening.

View Details

Did the Supreme Court of Canada contradict itself on Canada's Duty to Consult Indigenous people last October in its ruling on the Misikew Cree First Nation case? After the 2018 Trans Mountain decision, it might seem so. We break down the details of this Supreme Court decision with Hugo Choquette, the developer and Instructor of LAW 202/702: Aboriginal Law.

If you enjoy the podcast, take a moment to subscribe! You can find out more about Indigenous and Aboriginal law in Canada by taking Law 202/702, Aboriginal Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

[music]

00:02 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd. Many people were surprised in 2018 when a national pipeline project was effectively halted by the Supreme Court over something called, the duty to consult indigenous people. So it was doubly surprising, when in October of last year, the Supreme Court made another decision that said there was not such a duty. These may seem like contradictory decisions but they're not. And to help us understand, I'm joined by Hugo Choquette, the developer and Instructor of LAW 202/702: Aboriginal Law, at the Certificate of law from Queen's. We're gonna talk about the duty to consult, how it plays out at different stages of the legislative process and how the Supreme Court, while on its face, may be seeming to be contradicting itself, is actually following a very consistent set of ideas about the law.

00:54 MS: If you're not familiar with the duty to consult, you may wanna listen to our podcast from last September about the Trans Mountain Pipeline, which lays out more of the details and principles, before you listen to this one. In this episode, we kind of jump right into it. This podcast is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find it more and takelaw.ca.

[music]

01:23 MS: So let's talk about the Mikisew Cree First Nation.

01:25 Hugo Choquette: Sure. So the decision was definitely not the way that the First Nation had intended it to go, and the Supreme Court unanimously decided that there was no... Well, I shouldn't say that. So there was a preliminary issue, which was whether the Federal Court of Appeal and the Federal Court at all should have been able to deal with this issue in any event, which the court unanimously decided was not the case. So they sort of unanimously said this was the wrong forum to bring this claim in any way. But on the important decision of whether there is a duty to consult, and the real question in this case, was whether the duty to consult applies at the legislation making stage.

02:02 HC: So just to give you the factual background to the case again. This arose in 2012 when the Conservative government then brought in some legislation, some major changes to environmental legislation, the biggest piece being the Environmental Assessment Act, as part of these two omnibus bills, and so this was a huge piece of legislation that contained many, many items, and they all put them through at the same time. So there was very little opportunity to make any kind of representations to the legislature at that time, to the House of Commons. And so the Mikisew Cree First Nations basically challenged that process on the basis that they should have been consulted, because of course the changes through the legislation would affect their, possibly affect, their Aboriginal treaty rights, including treaty rights to hunt and fish, which would be covered by... Could possibly be affected by changes to the Environmental Assessment Act and the possible greater opportunities to have more development projects, etcetera.

03:02 HC: And so the question really was then, Does the duty to consult apply at the legislation making stage? And you might think that it would, because the duty, of course, as we saw, we discussed in a previous podcast, is always on the Crown, and the ministers of the Crown who represent the Crown in all of its actions, are involved of course in drafting the legislation, at least at the conceptual stage. There the minister is the cabinet. And so that was the argument that the Mikisew Cree First Nation put forward, was that really they should be... When they're drafting this legislation, they should have a duty to consult any First Nations involved. Now, the court said, and only two of the judges that Justice Isabella and she was joined in that judgment by Justice Martin would have actually imposed a duty to consult at the stage of drafting the legislation. And the other judges all pretty much said that this would be an undue interference with the idea of the separation of powers.

03:58 HC: And so I imagine you probably have in another podcast also looked at that fundamental concept, which is that the three branches of government; the executive, the judicial and the legislative, are separate and have separate roles in that, generally speaking, one branch shouldn't interfere with the role of another branch. And so here the judges felt that it would be an undue interference with the role of the legislative branch, and they also brought up a few of the practical concerns that they had in terms of how this would play out. So one of the things they mentioned, probably not the most convincing, but is the fact that this would slow down the legislative process, unduly slow down. So if every piece of legislation, so goes the argument anyway, has to be subject to consultation before it's enacted or even before it's even put before the House of Commons, that this would create a... This would make an already lengthy process into a... It would grind it to a halt, basically.

04:55 MS: So is this a concern they're raising about all legislation or just kind of the sorts of legislation that go into drafting these big omnibus bills when a bunch of things are crammed into one piece?

05:06 HC: So unfortunately, the challenge couldn't be just to the process of doing omnibus bills, because that is a recognized possibility for government and it's no different in that sense than any other piece of legislation. You can put as many items in it as you want. Whether that's politically acceptable or not is a different story. But legally speaking, there's really no difference with that process as opposed to just a single bill. And so the challenge, really, was on the basis of whether any legislation that might potentially affect aboriginal treaty rights would then be subject to a duty to. So the Crown would then be subject to a duty to consult as part of that process.

05:44 MS: So the contention then is that, if you impose this on all legislation, it's gonna slow down legislation, period?

05:50 HC: Yeah. So the concern would be that any legislation that might possibly have an adverse effect on aboriginal treaty rights, and that would cover a large range of possible legislation, would then be subject to a duty to consult, and a consultation process that might slow down the work of Parliament. And then they raised some other practical concerns that are perhaps more legitimate, such as the fact that even if, for example, the judges who argued that there wasn't duty to consult said, "Well, even if Crown were to consult, there's no saying that the bill couldn't then be amended by Parliament after the fact to remove the product of the consultation. In other words, let's say the Crown consults and comes to an agreement with the First Nation, then Parliament would be free to amend the bill and get rid of any accommodations that were in the bill. So some of these concerns seem to have some merit to them, but on the whole, of course, the bottom line is that this is basically just an argument which is not really based on empirical evidence. There is no evidence that this would in fact be the case that this would slow down.

07:00 HC: The interesting sort of dichotomy here is that the court basically made it very clear that even though ministers always play a role in representing the Crown in the legislative process, they are not acting in their executive capacity. So when a minister introduces a bill in the House of Commons or whether they're drafting in the process of conceptualizing and drafting legislation, they're acting as part of the legislative process, and not in their executive capacity. Now, the three judges, Justice Karakatsanis in her judgment and she was joined by the Chief Justice Wagner and I believe Justice Rowe. They also noted that there might be a possibility, and they raised is very interesting possibility, that legislation might be challenged on the basis of the honour of the Crown, once it has been enacted, even before it's implemented, that it could be that if legislation is enacted in a way that disregards the duty to consult, in other words, the claims of possible First Nations or other aboriginal peoples, in the process, that it could possibly be challenged under the constitution because of the fact that the honour of the Crown is an overarching principle and is always at play in the grounds of dealing with indigenous peoples.

08:08 MS: So it feels kind of like nobody's saying that the duty to consult isn't important, but when it's most appropriate seems to be what's kind of being continually debated here.

08:21 HC: Yeah. And one of the important things to remember about the duty to consult, and I know I mentioned this before, but I think it's critical to understand in order to make sense of these decisions, is that it applies even when rights are considered unproven in our legal system. So, one of the big things is that, of course, any aboriginal right, or for example, aboriginal title, which is a form aboriginal right that allows you to control land, has to be proven in court, as the Chilcotin people did in the 2014 decision in Chilcotin, where they received the a declaration from the court that they had aboriginal title, but those cases are very few and fairly rare because of the immense amount of resources that it involves to bring these cases to trial and have them validated by the court. And so, one of the things that happens is that the duty consult actually applies much before that. It applies any time there's a claim of an aboriginal right or treaty right being infringed. And so, one of the things that this decision does is it sort of forecloses the idea that you could have meaningful and put into legislation at that stage, because ultimately, once legislation is passed, currently the only way you could challenge it would be as an infringement under Section 35.

09:37 HC: Now once, if there's any implementing action by the Crown you could challenge that action with the duty to consult. You could say, "Well, before they implement this legislation, they would have to consult with us." But as far as challenging the legislation itself and stating that it's unconstitutional, your only avenue would be if you had a proven right, unless this idea that the first group of judges put forward that there could possibly be something in the honour of the Crown, as an independent principle that would allow you to invalidate legislation on that basis before it's even implemented, right? And so that's where it becomes a problem, because it puts aboriginal groups in a position where they're having to expend a lot of resources in order to be able to change legislation, because of course, the onus will be on them to bring new cases to court, and to make sure that they challenge the legislation and bring these novel claims to court, which may not be feasible for many groups.

10:34 MS: And they'd have to bring these novel claims, kind of, if you look at it as a process, at the very end of the process.

10:41 HC: Yeah, it would have to be once... Essentially once the legislation is approved and enacted, then they would be able to possibly bring a claim according to some of the judges. According to other judges, it would even be, and that seems to be the majority opinion, it would be even beyond that. It would be when the Crown is implementing the legislation. So you couldn't actually challenge the validity of the legislation itself. You would have to wait until the Crown was doing something to implement it, and at that point, you could possibly bring a claim.

11:09 MS: So how is that more resource intensive than if this decision had gone another way? Is it more resource intensive to do that at the implementation stage than it would be to do it as kind of at the draft legislation stage?

11:21 HC: Well, it depends. One of the biggest criticisms of the decision is that it's all about whose resources are being expended, because of course, if it was part of the legislative process, there would be the Crown and the legislative House of Commons resources that would be expended, but if you have to wait until the legislation is enacted, then it's the First Nations or the aboriginal groups challenging the legislation who have to invest the resources in bringing the challenge to court. And so, it really puts the onus on them as opposed to taking a proactive stance of saying to the Crown, "You need to consult before you enact this legislation to head off any possible challenges down the road."

12:02 HC: Now, of course, that may still be the best practice, and the court does recognize that, and in fact, in some provinces it's become policy that governments will consult with indigenous groups before they enact legislation, and also there's a possibility where, and this has happened in several cases, where there's modern treaties; so where there's land claims agreements or modern treaties with the Crown, one of the provisions that might be inserted in those treaties is a requirement to consult on legislation that may affect any of the rights guaranteed under the treaty. So that's one option that's open as well, but again, this has to be negotiated with the Crown as part of a modern treaty.

12:42 MS: But this effectively shuts the door on the idea that the government must consult at the legislative stage.

12:48 HC: That's right.

12:48 MS: Okay.

12:48 HC: It essentially insulates Parliament as an institution from the duty to consult, which is one of the biggest criticisms that Justice LeBel had, because in a very early decision, in the Sparrow decision, which is sort of the ground foundational decision in this area of law, the court had recognized that parliament's sovereignty would be limited by the duty to... Or not the duty to consult but by aboriginal, by Section 35, the provision that guarantees aboriginal and treaty rights. And so, according to Justice LeBel anyway, this is sort of walking back from that and suggesting that Parliament is insulated from any operation of the duty to consult.

13:24 MS: Right.

13:25 HC: It's only the Crown as an executive, the Crown as executive, that actually owes the duty.

13:30 MS: So this happened in October of 2018?

13:33 HC: That's right.

13:33 MS: And then earlier, in 2018, there was another Supreme Court decision about duty to consult, that basically put a halt to the Transnational Pipeline. Are these decisions coherent from one to the next? Is the Supreme Court kind of acting consistently when it's doing these things?

13:49 HC: I think it is, and it's appears inconsistent because the results are very different. And unfortunately, the way that these decisions get played in the media often can sometimes distort the real impact of the decision. So, in the Trans Mountain case, for example, it was very much viewed as an unconditional victory for the First Nations involved. The reality is that courts will interfere in the procedural aspect of the duty to consult, and they will suggest that one form of process might be better than another. But they generally will not interfere in the results. And so, one of the things that happens is that the decision might seem like it's suggesting that there wasn't adequate consultation, but it generally will focus on the process of consultation, and once the Crown can fulfill that process, the actual outcome of the consultation, whether there's accommodation or not, is not really something that the courts are willing to become involved. And similarly here, we see a very much a hands-off approach in the same way that parliament and legislatures know what's best in terms of enacting legislation and it's not for the courts to step in. So I think they're consistent in that.

15:01 HC: The courts, very much, ensure that there is sort of a process in place to ensure that there will be some consultation, but they're very reluctant to interfere in any significant way with the role, either of the executive or the legislative, when it comes to making the actual decisions in relation to consultation and accommodation.

15:20 MS: Right. And this most recent decision was made about three months ago. So I mean things do move slowly on these fronts.

15:26 HC: Yeah.

15:26 MS: But has there been any other developments since then?

15:30 HC: No, there's a number of cases that have referred to this decision and they're trickling up in the court systems, but generally speaking, there hasn't been. Now, the one other big thing that I should mention, which is not mentioned in the decision, but it's crucially important is that, that decision is not in line with the United Nations Declaration on the Rights of Indigenous Peoples. Because there is an article of the declaration, Article 23, that's explicitly states that indigenous groups should be consulted before legislation affecting their rights is enacted, and uses the well-known phrase, free, prior and informed consent. And so, one of the things that is now happening is that we have Bill C-262, which is a bill which purports to recognize the declaration as part of Canadian law. Now, the exact way in which that will happen is not very clear from the bill, unfortunately, but if the declaration becomes recognized in Canadian law and gains greater weight, it could be that this line of jurisprudence would then become out of step with Canada's international commitments, because clearly the declaration itself requires pre-existing consultation, and possibly even consent, before legislation that would affect the rights of indigenous peoples is enacted.

16:42 MS: But does the word enacted give the government here a little legal room? Because enacted can mean a variety of things. So if the duty to consult is supposed to be before the law is enacted, doesn't that also clear this kind of last stage?

16:56 HC: And I'm not using the exact language of the provision here, but there is some ambiguity in what exactly is required. But certainly it would seem that it would be a much more, a process that would involve the indigenous peoples concerned in a much more active way than what the current Mikisew Cree decision provides for in the legislative process at any rate. So, of course, all this will have to be interpreted by the courts in how exactly it will impact the situation. But one of the interesting things about the decision, from the majority, is that it doesn't really refer to the UN declaration and it doesn't really address the fact that this is a discrepancy, and so that's something that may yet affect this whole area of law again, of course.

17:40 MS: Well, thank you very much Hugo.

17:42 HC: Thank you.

17:46 MS: Thanks to Hugo Choquette. If you're interested in the relationships between Canada's indigenous people, and how they form part of Canada's tapestry of laws, you should check out LAW 202/702: Aboriginal Law at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton who is also a staff member here at Queen's Law. You can find out more about her music at MeganHamiltonmusic.wordpress.com. For original illustrations for this podcast are by Valérie Desrochers. You can find her work at VDesrochers.com. Thanks for listening.

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We're joined by Certificate in Law Academic Director Morgan Jarvis, using a minor holiday as a lens to see how the law applies to many aspects of our daily lives -- as exemplified by our course Law 201/701, Introduction to Canadian Law.

Located at Queen's, we naturally orient toward the City of Kingston's recent Nuisance Party Bylaw, but as we see, the law expands to a lot more than just bylaws and into a variety of areas -- some not as obvious at an immediate glance.

If you enjoy the podcast, take a moment to subscribe! You can find out more about Canadian law by taking Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

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00:03 Speaker 1: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd. It's mid-March as I record this, and Saint Patrick's Day is just around the corner. I'm joined by Morgan Jarvis, the academic director of our Certificate In Law program. We thought it might be a good opportunity to look at how the law affects us in our daily lives by taking one of the calendar's minor holidays, Saint Patrick's Day, and our survey course of Canadian law, Law 201701, and seeing how much the law interacts with what happens on that day. Given that we're recording this at Queen's University, the conversation naturally turns to the city of Kingston's recent Nuisance Party Bylaw, but we discover there's a lot more law to Saint Patrick's Day than you might think. This is probably a good time to mention that we're not your lawyers, and this is not legal advice! If you need legal support, contact a lawyer, or if you're a Queen's student, drop by the Queen's Law Clinics, and they can either help you out or point you in the right direction. This podcast is brought to you by the Queen's Certificate In Law, the only online Certificate In Law offered by law faculty in Canada. You can find out more at takelaw.ca.

01:02 S1: So, Morgan, let's talk about Saint Patrick's Day, and all of the ways that Saint Patrick's Day connects to the law. And we're talking here about Saint Patrick's Day is a time sometimes where people gather in small respectful gatherings to have, call it, quiet contemplation of the contributions of Irish culture to Canadian society. So in the context of these small quiet gatherings on or around March the 17th, there's a lot of different ways that the law interacts with them. And I thought it might be fun to take Law 201, which is our flagship course, and use all of the sections of Law 201 and see how many of those actually play into things that are happening on or around Saint Patrick's Day. So let's kick it off, close to the top of the course, and I think this is actually gonna be one of our bigger topics. You get to constitutional law pretty early in the course.

01:51 Speaker 2: Yes, exactly. We open it up with a little overview of Canadian law and how the law is structured in Canada, what the sources of law are, and then we get into some legal reasoning, thinking like a lawyer, and then write it into the real content of the course. And that does start off with constitutional law. While we're talking about Saint Patty's Day, we pulled up this new, relatively new, last year, it came in a couple of days after Saint Patty's Day, let's call it the Nuisance Parties Bylaw. And it's actually an interesting little legal... I guess it's been subject to some fairly heated debate, really, largely because it was kind of interpret initially as applying to student parties, especially coming in right after Saint Patty's Day into this context. You might interpret it to think, "Wow, this is really just targeting student parties."

02:42 S2: But it actually reads... When you read legislation, you do think about the intent of it while you read it for its wording. And it isn't written to only apply to students or only to parties, and we'll get into that word meaning in a little bit. But just to set it up as a bit of a constitutional issue right off the bat, is it's quite interesting reading the bylaw because it opens up talking about all the legislation where the city gets its power to enact a bylaw like this that stops people from having nuisance parties, and that's based on the Municipal Act. And if we go back to the constitution, it actually divides power over the law between the federal government and the provincial government. And one of the areas of provincial power is the power over municipalities.

03:31 S2: And so then Ontario government enacts the Municipal Act. Then here we have the city bylaw, they're citing different sections of the Municipal Act, saying that the municipality... Under the Municipal Act, the municipality can pass bylaws. And they state that if someone contravene them, it's an offense and they can establish a system of fines for such offenses. They can pass bylaws for the well-being of the community, and they can prohibit public nuisance, and they can forcibly enter people's property to enforce them. And therefore, the council concludes that a nuisance party is a public nuisance that they can regulate. And then off they go into talking about what is a nuisance party.

04:08 S1: And this is one of the things that actually Law 201 one helped me understand, is the constitutional module and they really did unpack where power resides and how power is derived in Canada, and really helping understand that chain of provincial to municipal to agents of the municipality, and kind of how authority happens and where authority comes from. And when we start getting into all the components of the Nuisance Bylaw, you can kind of see all the different ways those pull together.

04:36 S2: Yes. And actually, we actually have a public constitutional course, too. And when people enjoy that part of 201, then they could dig a little deeper. And Professor Shanks is a lawyer with the government here who does a fantastic job in that course. It's very, very popular. So perhaps to dig a little more into how they've defined nuisance parties, I think it provides a rather interesting little statutory and interpretation question and a little bit of meat for a legal argument. A nuisance party means a gathering on premises, which by reason of the conduct of any one or more of the persons in attendance, is characterized by any one or more of the following, and some of those are public intoxication, and use of entry upon a roof not intended for such occupancy. And I find that it's kind of curious 'cause those are right where you're quite clearly targeting... You could picture the student ghetto on homecoming or Saint Patty's Day, and all those students sitting with their beer at 11 o'clock in the morning on roofs. [chuckle]

05:41 S2: So I'vve never seen that anywhere else. So they're quite clearly targeting students here, I think. But then I think about it. Well, I often, on the weekend, some buddies will come over, and I'm doing house renos, and so we'll be moving lumber up from one level to another end and we pile the lumber up on one roof, sit and have a beer together, and then shift the lumber up into the third floor window from that roof. So we're sitting on... We're a gathering on a roof top. So I guess now we're actually having a nuisance party. And we can be subject to up to $25,000 in fines. Same with public intoxication, I find that's kind of fun because you learn about it in the criminal law module of 201, Professor Kerr, a fantastic law professor here specializing in criminal law, and she actually cites a section of the criminal code, which I remember learning about in first year of Criminal Law here too, where it's about public nudity.

06:37 S2: And it's a fun case because you would think that public nudity, as a criminal offence, must be running down the street nude and thoroughly offending everybody. But really, it's also, if you're sitting in your own living room with your blinds open and people can see you from a public place, that's also public nudity. So then I see public intoxication here where they haven't defined "public", should that same interpretation apply where, again, if I'm sitting with some friends having a bottle of whiskey, which I can't say it doesn't happen after said house renos, are we now a nuisance party because people could see us from the street gathering on a premises, which is my home, and we're intoxicated.

07:21 S1: And I think the point here is we're not really questioning... There's a baseline intent of this law which is to help the municipality solve a problem and to improve town and government relations.

07:30 S2: Exactly.

07:31 S1: And there's certainly... And I think the law probably does a good job and goes a long way toward that intent, but there's stuff in here that when you take a course like Law 201, you begin to develop that kind of "think like a lawyer" reasoning, and you can start reading these things and start understanding what the phrases actually mean and unpacking kind of what may be some points of ambiguity or what might be some looseness around the phrasing.

07:52 S2: That's right. We do that right away in week two. We try to... I do these kinds of exercises where we're walking through examples and trying to get you to think about word meaning and, of course, the intent of rules and legislation. So that is important, you're right, to consider that the intent of this, obviously, be called nuisance parties; that's the intent. I think maybe just the debate has been around because of the vagueness of the wording and the open-ended... Or the ability to really interpret in multiple ways. It does give the police a lot of power. Thankfully, certainly it's my experience here, I've only had very positive interactions with Kingston Police, they're fantastic people. They're used to dealing with the student population in very positive ways. So I don't think we have to be concerned in any way, but it does... If there is room for... If there wasn't someone who was acting with the best intentions, there is certainly some room there for error, perhaps, on the police side or for misinterpretation on the police side.

08:57 S1: And again, it's a fun intellectual exercise just to go through this and sort of see, "Well, let's take this with a critical eye and see what comes up when we look at it through that lens."

09:07 S2: Yeah, exactly. And I think the thing to keep in mind here is that if you do go astray and end up being charged under this, the fine can be up to $25,000. And I know there's some wealthy families who send their children to Queens, but I don't think even the Richardson family of the Richardson Stadium would stomach a fine like that too easily. Actually, speaking of Richardsons, I've been dying to talk about that the recent Huawei issues in the law in this podcast, so I'm just gonna take a really quick diversion on that. You may have been reading in the news lately that the Richardson International, their big grain dealing company was actually hit with an embargo by the Chinese government as a retaliatory move from... We're interpreting it as a retaliatory move, stopping Canadian canola shipments from our prairie farmers, all starting from our extradition agreement between the US and Canada, so that's international law; we cover an International Law course at the end of 201.

10:16 S2: So we have this extradition treaty. So as pursuant to that, we arrest a Huawei executive, who the US have asked us to arrest if she steps into Canada, and so we did, and we're going through our due process in that regard. And it appears that the Chinese government is reacting in various, various ways to make a point. And so here you've got something as way up there in international extradition treaties coming right down hitting our prairie farmers in the pocket when they really can't afford it. So it's an interesting example of the big concepts in the law coming down to really count for average people.

10:56 S1: And this is something, again, that we cover substantially in the International Law course, and in kind of your retooling of 201, there's now an international law component to 201 as well.

11:06 S2: Yeah, exactly right. And then at the beginning too where we're really trying to introduce these topics happening in the world all around you to show you why learning some basics of the law really matters. You can read these news stories and understand because in a story like the Huawei one, there are so many legal issues coming up, particularly around the rule of law we keep seeing or hearing raised. So, yeah, we just wanna make sure everybody's aware of that, and given that context, understanding of why we want them to know this about the law around them.

11:37 S1: So we've got this Kingston bylaw as an interesting example of how constitutional law ties back to things like Saint Patrick's Day, and measures that municipalities might enforce to curb celebrations, so on and so forth. But what other things in the Saint Patrick's Day environment also tie back to the law? I've got a couple of things in mind, and I'm sure you do as well.

12:00 S2: Right. Yeah. And it's a important part of what people have been saying in interpreting this bylaw too, is that this is a bylaw targeting nuisance parties, but don't forget there are already rules against public intoxication, and they talk about urinating and defecating in public, and throwing garbage all over the place. These are, of course, all bylaw offenses anyway. And then there's a whole other area of law that we... Areas of law we cover in the course that would also be issues to consider. And first that comes to mind, to me, are are the concepts of property and tort. As a land owner or a tenant, you are in possession of the property. And what goes on on your property, you can be responsible for that.

12:48 S2: And that's under torts now. If you're hosting a big party, people are getting drunk and, say, they're driving home or they're going off and hurting people or there's a fight on your property, you've allowed people to get drunk and get carried away and somebody gets hurt, if something goes wrong, you could be liable for that. You could be responsible for that. You could be paying the hundreds of thousands and millions of damages for it's a serious harm that someone suffers. So I think it's important to be aware of that anyway regardless of whatever these bylaws say. You can be found at common law, responsible. When you have a duty of care for someone else, you put yourself out there in a position where somebody is vulnerable to your act, and you go wrong and they get hurt, you could be responsible for them.

13:36 S1: So the tort law portion of this, as we really get into this idea of duty of care and responsibility and negligence, and a better understanding of... And you're right, it's a good... For instance, if you throw a party and someone gets hurt, it is your duty of care and, potentially, your negligence that would lead to a lawsuit and decisions. But then you also mentioned, kind of in passing, the property law module, among many other things, does unpack a bit of what you need to understand to really understand a landlord-tenant relationship, and what rights tenants have and what rights landlords have, and what right you as a property owner have versus the rights that you're conferring on your tenants when you actually rent to them.

14:16 S2: We talk about, at the big picture level, of property being a bundle of rights and you can retain parts of those rights and give other people parts of those... Some of those rights. You can give them for a limited term, you can give them subject all kinds of restrictions and conditions, or you can just, you completely sell your property, you transfer all of those rights to someone else.

14:39 S1: So just trying another couple of things from the course just to see if we can make an association. We're on to contracts. What about... There's a contract module in law 201. Contract implications. When we get back to the bylaw, one of the outcomes of the bylaw is prospectively that you'll get a summons to court, and the university will be notified, and then you will be brought up on potentially non-academic misconduct charges, which speaks to your contract as a student with the university. As a student here, you are bound by the university's rules, and that's effectively something that would come under contract law, as I understand it.

15:14 S2: Sure, yeah. You can agree to whatever you want with somebody else as long as it's legal. So there's these contracts all around us all the time, without even... Well, you're supposed to know, but yeah, as long as you know you are agreeing, coming in into some contractual relationship, an agreement of some sort, it doesn't need to be written down; you can even have just verbal contracts that you're bound to do something in exchange for something else. And we get into the idea of consideration.

15:41 S1: And the furthest thing I got was straining to try and figure out how intellectual property connects to this. The best I could do is if you wanted to, say, make a t-shirt with the brands of some of your favorite beverages on it to give to your friends at a party or something, you can't do that because you can't actually just use the copyright and the trademarks of those organizations without their consent.

16:06 S2: Right, yeah. A similar... I guess I was thinking of a similar example of this. Back when I was a student here, the house I'm picturing is now, I think, right on the edge of where the campus has been growing, so it's quite run-down. But there had been a giant Playboy bunny painted on one of the houses, and it was referred to, of course, inappropriately, as what they were getting at the Playboy House. And I always thought... Later, when I learned about the law, I thought, "Wow, I wonder if that's an infringement of trademark, 'cause I'm sure Playboy would have registered. And if they haven't registered, they've at least got common law rights in that trademark. And I would think they could argue in association with wild parties. So if you have that logo on your house and you're hosting parties, you're probably infringing their trademark 'cause you only get trademark rights in association with the goods and services that you're providing. The tricky bit... The argument there is connecting them. But, yeah, it's the same idea I'm thinking about the posters and you see a lot of different things in house windows as you're walking around the student ghetto. And, yeah, I've been kind of pondering like, "Where are the trademark issues there?" because those posters, of course, are covered in trademarks, logos and branding.

17:22 S1: Right. So I think the idea here was let's take Saint Patrick's Day as just an example of something you can throw it law 201 and see how it stacks. And the point isn't really, "Let's dissect Saint Patrick's Day from a legal standpoint." It's how does the law apply to almost everything in our lives. And I think we've got a pretty good proof here that you can take almost anything and look at it from a legal lens and see that it's not even just a question of one law that applies to something, but the law... All sorts of laws kind of intersect with stuff we're doing all the time in our daily lives.

17:55 S2: Exactly right. The law is all around us. There's legal rules all around us. And ignorance of the law is no excuse.

18:03 S1: Alright. Thank you, Morgan.

18:04 S2: Thank you.

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18:08 S1: Thanks to Morgan Jarvis. If you're interested in a sample tray of Canadian law, covering almost every subject of import, you should check out Law 201701, Introduction to Canadian Law, at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queens Law. You can find out more about her music and meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valérie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.

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Your coat's been stolen at a club or restaurant. Does that establishment owe you anything? Do businesses have a duty of care over guests' belongings? And does that equation change if they have a coat check (and does it change more if you pay for the coat check)?

Certificate in Law Academic Director Morgan Jarvis and Corporate Law instructor Christian Hurley explore legal concepts like bailment, duty of care, contracts, and liability through the lens of what seems to be a universal fact of Canadian life: getting your stuff jacked when you're out on the town.

If you enjoy the podcast, take a moment to subscribe! You can find out more about criminal law by taking Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

00:04 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd and, hey, have you seen my coat? I know I wore it in here. Oh, man, someone has stolen my coat. This happens a lot. It happens especially in the winter and especially to students. But when it happens, and you're out and about, what does that mean? If someone steals your stuff while you were at a restaurant or at a club, did that establishment have a duty to look after your belongings? We brought in two people to help us answer that exact question. Morgan Jarvis is the academic director of the Certificate in Law program and also the architect of a new version of our Introduction to Canadian Law course starting this May. Christian Hurley teaches Law 204/704: Corporate Law, and is bringing his expertise in contracts to the table. And may be worth mentioning that this podcast is for informational purposes only and does not constitute legal advice. This podcast is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca. Let's see if we can find my coat, or at least find some answers. We'll start with Morgan Jarvis.

01:23 MS: Someone goes out for the night, they're enjoying a very responsible evening out on the town, and they leave their coat somewhere in the establishment, and at some point in the night, their coat is stolen. And this seems to be almost a right of passage for university students. It happens a lot in campuses all over the country, I'd imagine campuses all over the world. So, there's just a broad question here about, is there anything that is the establishment's responsibility when it comes to things like people's stuff getting stolen when they're out for the night?

01:55 Morgan Jarvis: Yes, it is certainly a problem. And I was surprised that there weren't more cases of this. But, of course, you have to remember that the law is only worth as much as you are financially and, of course, at coat check, nobody's gonna bother going to court over their coat, unless it's a fur coat. I did actually find a case about a fur coat, disappearing from a coat check situation, but before we go down that road, it's worth thinking about… You mentioned the different ways that your coat might go missing, 'cause that is where it all hinges on. If the coat is still within your possession, you're in the bar, whatever, the coat is maybe on a coat hook behind you or it's on your chair, and it goes missing, it's probably your problem. You didn't do what you could have done to keep your coat safe. But then we get into a bit of another situation where there's the coat check or there is somewhere provided by the establishment that you're in, which is an invitation to hang your coats here. There's a restaurant downtown in Kingston that I go to a lot and in thinking about this, I realize why they do this, they have the coat rack right in front of the bar or reception area, so there's always a staff person there watching that coat rack. So, it would be difficult for somebody to come in there and steal everybody's coats.

03:23 MS: If we can just take a quick step back, just to put a pin in the first point, if there's no place to put your coat, if there's no obvious area where there's any kind of implication that your coat is going to be safe, that's on you. At that point, your stuff is your responsibility.

03:39 MJ: That's my thinking. I obviously haven't spent a huge amount of time… If you were really going to court on this, I'm sure they would be able to argue, they would be able to find ways to argue that an establishment would still… 'Cause what it comes down to, I'm gonna get to is it comes down to, is there a duty of care? Does the establishment… It's that torts concept through negligence, does the establishment owe you a duty to look after your belongings? And I think normally the answer would be not in the situation where the coat is with you. And so, yeah, it might be smart for them to not provide an option to store your coat because then they're taking on the responsibility of looking after it, or they make you just keep it. Arguably, I'm sure someone would have put more thought into it and make it a case otherwise, but that's what I'm thinking.

04:30 MS: This notion of duty of care, this is a legal term that's basically someone's responsibility toward you.

04:35 MJ: Yeah.

04:36 MS: Especially in the context of torts, which is basically people suing each other.

04:40 MJ: Exactly. And in this case, if they've offered a way to look after your belongings, then it gets to this concept, this old English common Law concept, of bailment, and it still applies. It's like when you drop your clothes off at the dry cleaner, or your car at the mechanic, or you check your coat at a coat check, you're handing over possession of your belongings under a certain understanding there's a service they're gonna provide. They're supposed to look after things and provide them back to you in the same condition as you left them, or better if it's a repair or cleaning situation. It's this bit of a contract around that, I guess. So, there's this duty of care then, when you look at it from a negligent perspective, they've put themselves out to look after your stuff for a period of time. And then if they're negligent in doing that and your stuff goes missing, then they could be responsible for it, whether it's a paid coat check or not. And there were some fun cases of different situations around that, and the one I ended up just finding at the top of the results when I searched was actually a… It was an employee of a restaurant, and they had been providing… She had this lovely fur coat, it was $1200 in the 1980s, so in today's dollar it'll be a fair bit more. So, it was worth going to court for, I guess.

06:06 MJ: And they had been providing storage for their… Secure storage for the employees' belonging, and nothing went missing. And then they changed to this less secure shared lockers, and all of a sudden this staff lady left her fur coat like usual, of course, in February, in Saskatchewan, and it went missing. So, then she's suing for it.

06:27 MJ: And it was because they had this… They've kind of done the reasonable thing of providing secure storage for a while in this bailment situation where they're looking after… They are providing some safekeeping for people's belongings, and then they went to unsecure, and then they were negligent, they breached their duty of care and the standard of care, and they had to pay damages to this lady for her lost coat and her car keys. And then one of the cases that they cited was another case of a patron to a restaurant, and that was the analogy of if the gentleman had brought the coat with them to the table and hung it on a hook right beside him, then maybe he would have been responsible for it, but because he had hung it on the hook at the front that was provided for him by the restaurant, an invitation to "hang your coat here," suggesting, "We'll look after it for you," then the restaurant was responsible for it.

07:20 MS: There's a few ideas here. One is "bailment," which is a term in property law, which is basically that the temporary surrendering of something on the condition that you're supposed to get it back in the same condition. And then there's duty of care, which seems to come in to play more in torts, in which if you have a duty of care and you don't provide it, you're being negligent, which basically means you're responsible.

07:40 MJ: Yeah. Well, so it opened… They're all kind of connected. It's a little bit difficult to pull them apart because that bailment situation then contractually puts you in a position where you can be held responsible if you're negligent. And so contracts, which Christian will get into, are often worded so that they're contemplating not only breach of contract, and you could have a bit of a contract around this, too, and then to be a breach of contract action. But there's also, if you go down the negligent side, it's not so much about the contract, it's just that you've put yourself through this contract relationship, you've said you're gonna look after stuff and then you didn't, so then you're negligent. So, you can go down a couple of different routes from this bailment relationship.

08:25 MS: Just to go off on a quick tangent, in an earlier podcast we did cover how people can look stuff up on CanLII and find their own cases. So, if people wanted to fine this case, this specific case on CanLII, they can look it up and they can read this themselves. Right?

08:37 MJ: Yeah. I literally went to CanLII.org, I typed in "coat check," and the first result… 'Cause I wasn't gonna spend more time going through them, so I was lucky the first result was this case of a fur coat went missing in a restaurant.

08:50 MS: And that's at Tremear v Park Motor Hotels?

08:52 MJ: Park Town Motor Hotels, from Saskatchewan Court of Queen's Bench, I think, in the 1980s.

09:00 MS: So, is this a good time to switch, and Christian can talk to us a bit about contracts?

09:04 Christian Hurley: Yeah, for sure. Well, we've sort of… Morgan has talked about the situation where you go in, there's a bailment, you pass your coat off to the venue. On my side, I'm thinking of a situation that's more akin to a traditional coat check. Most people have gone through this process. You enter into a venue, you hand your coat over to the clerk, you tender payment, if required, and you're given a ticket with a number on it that will help identify the coat at the end of the night. From my perspective, we're trying to see whether or not the venue can do anything to limit or exclude their liability for lost or damaged items better handed to their possession.

09:49 CH: To start off, it's fair to say there's nothing inherently offensive about clauses that seek to limit or exclude the liability of a party to a contract. These types of clauses appear quite commonly, but definitely not exclusively in standard form contracts. So, the traditional coat check falls under a category of standard form contracts. And when we were studying back in Contracts 101, we called them "ticket cases." Ticket cases, they're one of the earliest uses of standard form contract. They arose in situations where business people were engaging in many different transactions in a short period of time, and typically these would be contracts for carriage, a taxi or a ride, or situations like a coat check, which would be a bailment.

10:38 CH: So, there were people who were willing to do business on a fixed set of terms, and they didn't have the desire to negotiate the terms of each individual contract. Customers, on the other hand, they rarely gave the matters much thought. They're either too rushed to negotiate the terms, or they weren't concerned enough to object to the terms that were insisted upon, or maybe it was just such that they were passive as a result of the fact that they said, "The party that we're dealing with, they're not gonna vary these terms or the terms that are typically insisted upon by businesses in a similar line of work." It's essentially a take it or leave it situation. And you know what? That's beneficial for both sides, because you can think about when you're going to a bar and you're looking to get your coat to the coat check, that line moves all too slow. You're there long enough, you just wanna get up there and hand your coat over. You can imagine the nightmare that will result if you get to the front, and all of a sudden you're trying to hash out very specific terms about how your coat is to be handled by the coat check clerk. It's rather absurd.

11:44 CH: So, these contracts, they're formed quickly, casually, there's no real discussion of terms. A ticket is handed over, it may have a brief set of terms on the back or maybe it will incorporate some terms by reference, maybe it might advise the customer to, "Please see notice posted in the premises." That's typically what happens, so I guess what we need to look at is try to understand how these exclusionary or limitation clauses that may be found on a sign or on a ticket that you're given are treated in Canadian law. The first is, does the clause apply at all? Was the clause effectively included as a term of the contract that you've entered into? Most often, this will turn on whether or not the clause was brought to the attention of the contracting party that's now challenging the cause. So, if I'm passing over my coat to you, was I properly advised? Was I notified that there are terms limiting or excluding liability of the venue with respect to my property that I'm now passing over to that? The courts have typically said that the more unusual or onerous a clause is, the more steps that need to be taken to bring the attention of the party to those classes.

13:04 CH: So, you can see at an operation, any time you look at a typical standard form contracts, pick up a terms of use for a product or service that you're dealing with and read through, and nobody does this, lawyers included. But read on down through, and inevitably you're gonna get to a section that deals with liability. And all of a sudden, you'll see that the font will switch from maybe a standard small font, and all of a sudden, the font is capitalized, and it's bolded, and it's underlined. And what's happening here is that's reflecting the effort of the party who's drafted this contract. It's reflecting their effort and trying to bring the attention of the other party to the language in this contract, because they view it as unusual, as onerous.

13:51 CH: In the case of a coat check ticket, I don't know, most coat check tickets that I see, I get them, there's a number on the front. Full stop, the end. In doing a little bit of looking into this, I've come across a few cases where, on the back of a ticket, there might be a couple of short clauses purporting to limit liability. But for the typical person who's passing the coat over, they look at these tickets simply as proof that I've given you my coat and the number is going to help you in finding it in that closet, in the back there. We're not typically expecting contractual language to be included on the back of the ticket. So, there needs to be something done by the venue to really make that obvious.

14:37 CH: Switch it from the situation where we've got the ticket with a notice to perhaps there's a sign close to the coat check that advises of a fee for service. Say, what if the sign also clearly stated that the venue is not responsible for lost or stolen items. Well, maybe it could be argued in this instance that the clause was sufficiently brought to the attention of the customer prior to the contract being entered into, which would satisfy the notice requirement, because, again, you think about the process of how the contract was entered into. When I approached the coat check, I pay my money, I pass over my coat, I receive the ticket. If I've paid my money, if I've given the coat, and there are terms on the back of that ticket that I don't see till after the fact, have I sufficiently been notified upfront of these exclusionary clauses? And maybe I'd suggest that, no, I haven't.

15:34 CH: So, it would probably be a good idea, if I'm the venue, to take extra steps to notify the customer that there is a limitation of liability or an exclusion of liability that applies to this particular situation. If at the end of the day, we've determined that the clause does apply, then how should it be interpreted or trying to determine what the class actually means? And in Canadian Common Law limitation or exclusion clauses, they're narrowly interpreted, and any ambiguity in the language is going to be construed against the party who drafted the language.

16:10 CH: This is justified in a couple of different ways, but first is that the party who's drafting the language had the opportunity to ensure that the wording was clear. And second, now you're seeking to take away some of the benefit of a contract that would otherwise extend to me, the customer, who's challenging the clause. For example, if the establishment had a sign at the entry that stated, "All personal property here is at the risk of the patron," this is as I walk in the door, say, to the bar. Is that sufficient to limit or exclude liability if there's not a similar notice posted near or around the coat check? If I was the customer, I would state, "No, it's a little bit ambiguous." I would think that sign, as I'm entering the venue, that's going to apply to situations where I'm not conveying possession of my property to you, the venue. That's where I'm gonna retain it. I may have laid it on the chair next to me or I've hung it on a hook somewhere.

17:07 CH: But if I go down to the coat check and all of a sudden I'm paying for a service, I'm paying for somebody to watch my coat, if there's no notice posted there and there's nothing on the ticket, that would purport to limit that liability, is it a reasonable interpretation that limitation exclusion doesn't apply in that situation, I'd suggest that there's an argument to be made subject to, pursuant to the doctrine of contra proferentem, then you could make an argument that that ambiguity should be construed against the venue which drafted that language.

17:40 CH: And finally, you can look to see are there any reasons of public policy that would motivate a court to strike down the applicability of that clause. And courts had, time and again, shown they're unwilling to allow a party to rely on an exclusion clause where it's not merited. So, if the party doesn't take reasonable steps or they're sharp dealing… So if I pass my coat to the coat check clerk and they just throw it in a pile and they can't see where it is, it's out of their line of sight, it's easily accessed by other patrons of the venue, then you could make an argument that they're not taking reasonable steps that would be expected of the venue in those circumstances to properly care for the customer's possession. In that case, the court may choose to not uphold the exclusion or limitation clause.

18:33 CH: But from a public policy perspective, these clauses are pretty legitimate. You think about, if I'm passing my coat to you, you're typically paying a very modest amount. On the other side of that, the benefit that I should be realizing from that, it's pretty modest. It would be pretty unfair if I was to pass a coat over to a venue, and I had it stuffed with diamonds and Rolex watches, and I gave it to the coat check clerk and gave my $2, and when I came back at the end of the day, it's missing and now I'm trying to claim thousands and thousands of dollars. It's not within a reasonable expectation of the parties entering into the contract. If the fee is modest, then it's reasonable for people, I think, to come to the conclusion that the risk assumed by the venue should also be modest. Otherwise, they have to really charge a ludicrous amount for what's really a modest service, and that would really be to the deterrent not only of the venue but also to the public who are looking to available of those services as well.

19:41 CH: So, at the end of the day, the person who's passing possession of the coat over to the coat check still has the ability, notwithstanding the limitation clauses, to sue for the contract price. If we say that this clause is valid and it can be upheld, there is still a remedy available, though, given the amount you're paying to have your coat stored, that contract price is gonna be pretty modest, so you're probably not likely to come across any case law on that point as you did with the fur coat in Saskatchewan.

20:17 MS: Right. I feel like I should probably mention at this point, none of this is legal advice, nor should it be construed as such. This is just general information. At the end of the day, venues should exercise some caution, protecting themselves, by making sure there's language around the limitations of what the coat check service is going to do. But by and large, it's not prudent for a consumer to ever expect that there would be recompense if their stuff is stolen, period, coat check or no.

20:46 MJ: Yeah. I think, from the venue's perspective, they need to get out in front of the… They need to properly notify the public what it is we're offering and what it is we're not agreeing to. And if that's clear and makes sense from every party's perspective, then you get what you bargained for at the end of the day.

21:09 MS: Right. And I guess I just go back to my original point. Like anything, unless you've got $10,000 in your pocket for legal fees, you may as well not really expect to be able to exploit the law to your benefit, regardless of what we've concluded today.

21:22 MJ: Right.

21:23 MS: All right. I guess the burning question for me is, it seems like other than it's a nice service and I guess there's some small marketing value in terms of being the kind of establishment that has that service, it seems like, for the venues, coat checks are nothing but trouble.

21:38 MJ: Yeah. I would say they are putting themselves out there to… But at the same time, like this case that I was looking at, discusses this part of the business transaction that they're offering, they want customers who come to their venue, something they choose to offer as an attractive incentive to attract customers, is, "We're gonna look after your coat if you come and spend time here in the winter." I think it does need to be like any business calculation or any… Yeah, any business venture, there needs to be calculations of your risks and liabilities versus the cost and revenue, including, of course, the legal risks. And I was finding articles in the States, I'm sure in Canada, too, businesses can buy coat check insurance. So, that's one way you can mitigate your risk, you're knowingly taking on some risks and you buy insurance to back it up, and you try and do your best to minimize where you might fail and be exposed to liability and the consequences, and you might buy some insurance just for that extra protection and hope they'll pay out when they're asked to.

22:50 MS: The key advice to consumers here is do not stuff your coat with diamonds and Rolexes.

22:56 MJ: Yes, it's probably not a good idea.

22:56 CH: That's the important takeaway. And it's worth noting, too, there's a bit of a difference between risk and liability. So, sure, there might be some liability on the part of the venue in accepting and caring for the customer's coat, but at the end of the day, what's the true risk? And you can see by the lack of availability of ready case on the subject, there's not many people who are going to be willing to take an establishment to court to have my old surf style windbreaker returned. Maybe the risk isn't really there, but there's certainly liability to think about.

23:27 MS: All right. Morgan, academic director, with a Certificate in Law, and the developer of the new version of Law 201 coming up this summer, and the director of the Queen's Business Law Clinic, and Christian, instructor of our Law 204/704: Corporate Law course, with a Certificate in Law, thank you both very much.

23:45 MJ: Thank you.

23:45 CH: Thanks a lot.

23:48 MS: Thanks to Morgan and Christian. You can check out Introduction to Canadian Law, Law 201/701, and Corporate Law, Law 204/704, at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.

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The Supreme Court has struck down the Harper government's Victim Surcharges as "cruel and unusual" -- a surprising move to many Supreme Court watchers. Lisa Kerr helps break down the SCC decision, the rationale behind it, and the way she feels the court got it right -- and wrong.

If you enjoy the podcast, take a moment to subscribe! You can find out more about criminal law by taking Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd, and sometimes I get distracted by the headlines. That's why a very important story almost slipped past me last week, a Supreme Court decision against an immensely controversial legacy of the Harper government mandatory victim surcharges. On the surface, they seem like a blow for victims' rights and justice for all, but as unpacked by Lisa Kerr, they were often the opposite of just. Lisa is the developer and instructor of the Criminal Law Module of Law 201-701, Introduction to Canadian Law. She'll take us through the legislation, the Supreme Court decision, the nature of Supreme Court dissent, and the way she thinks the highest court in the land got it right and wrong. This podcast is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

[music]

01:06 MS: I hear there's a new Supreme Court case. Tell me what it's all about.

01:09 Lisa Kerr: Yeah, so this new case that was just handed down is called R v Boudreault, and many in the legal community were excited to see this decision because it was the first decision written by Sheilah Martin, one of the new appointees to the court. She's been on the court for about a year, but this is a decision authored by her. She writes the majority opinion, a 7-2 decision that's all about whether those who are convicted of crimes also have to pay a mandatory fee along with any other punishment that they are faced with. And the big question in this case was, is it fair to have a mandatory fee imposed on someone for having committed a crime, no matter whether they are very poor, whether they're very marginalized, whether they really have any ability to pay?

02:00 MS: And was this was relatively recently introduced, too.

02:02 LK: Well, so for many years in the criminal code, a judge had the discretion to impose a fine, a victim surcharge along with any other punishment. But in 2013, the Harper conservatives, as part of their victim rights type legislation, tough on crime legislation, they amended section 737 of the code and made it mandatory. So this was called the mandatory victim surcharge and what it said, this new law as of 2013 was that judges had no discretion here. If someone was convicted of a summary offense, so a less serious offense, then the judge had to impose either 30% of any fine or a minimum of $100. If it was an indictable offense, a more serious offense in our system, then the judge had to impose at least a $200 fine. And those sound like small numbers to many of us, $100, $200. But you have to consider that many people might be facing multiple convictions on different counts. It may all be very low level: Uttering threats, mischief, those kinds of offenses, that in our system we consider fairly non-serious. And that many of these people are people who are living on $800, $900 of social welfare of some kind or another, per month.

03:30 LK: And in fact, many of the appellants or plaintiffs in the case at bar, that was exactly their situation. Just to grab one example, one of the litigants was a blind woman, who had a monthly income of $831, and 800 of that went to her rent, so she had $31 of disposable income on a monthly basis. She was convicted of uttering threats, and she wound up with $200 in a mandatory victim surcharge. For her, that amount of money, it wasn't possible for her to pay it. And so, what she's facing as a result where what the court considered to be indefinite punishment. Because she was always at risk of being brought before courts for a committal hearing and so on. And this issue of this unpaid fine would really follow this woman indefinitely. That's why these issues wound up getting litigated.

04:28 MS: So bringing this up to a more structural level, judges do have a fair amount of discretion, but there are some things they just can't say no to.

04:36 LK: So that's the whole discussion when it comes to mandatory penalties. We talk about mandatory minimum sentences, and typically what we're talking about there are mandatory sentences for where a judge has to send you to jail or prison for a particular amount of time. And those have been in the headlines a lot the last few years and we've seen the Supreme Court strike down a few, three in total, mandatory minimum terms of incarceration.

05:04 LK: This is also a case about a mandatory punishment. But here we were talking about a mandatory fine that would be imposed in addition to any other punishment and so the judge has no discretion not to impose it. So what you saw going on in the last few years in the court system, where many lower court judges, particularly Provincial Court judges in Ontario really did not want to impose these fines.

05:29 MS: Right.

05:29 LK: There was almost a judicial revolt in the Provincial Court about it. And why? Because these are judges who see these people in and out of the court system and they know there's no ability to pay, and they know that they're just imposing yet another burden on this person that actually isn't going to further their rehabilitation, really isn't going to sort of help them in life in any way, but it's just gonna be another sort of hassle, administrative challenge that they really cannot meet. And so you saw these lower court judges, avoiding these penalties in all kinds of creative ways, declaring them unconstitutional and so on. So with all these cases, the issue eventually did get up to the Supreme Court and generated this opinion.

06:09 MS: Right. No, you saw, there's a lot of creativity going on there like, "Yeah, there's a fine, but we're gonna give you a hundred years to pay it."

06:14 LK: Right. [laughter]

06:15 MS: That kind of thing. So, why the Supreme Court? Why did this have to get all the way up there? Is it because this was originally kind of a federal ruling?

06:25 LK: Yeah, so the reason it has to go to the Supreme Court is that what was happening was these Provincial Court judges were trying to avoid it. A couple of them tried to say it was unconstitutional, but they were getting overturned in the Superior Court system. So eventually these issues just continued to be litigated until the Supreme Court had a chance to weigh in. And what the Supreme Court said in this majority opinion was that these mandatory fines in at least some cases, not in all of course, but in some cases they were generating cruel and unusual punishment. Some were surprised by this decision because Section 12 of the Charter, which prohibits cruel and unusual punishment, is typically considered to be a pretty high bar. Pretty hard to say that a punishment has violated it. The language in the law is that the punishment has to outrage standards of decency, it has to be an abhorrent or an intolerable punishment. So that sounds like something that has to be pretty severe.

07:25 MS: So can you give me an example of something else that has been deemed cruel and unusual?

07:29 LK: Yeah. So in the mandatory minimum area, there's been seven-year prison sentence for importing narcotics, even if the narcotic was just marijuana, even if it was just a single joint, even if the offender was a first-time offender.

07:47 MS: Right.

07:47 LK: So in that case, which is called Smith from 1987, the Supreme Court said that's abhorrent and intolerable, we're not gonna send that person to prison in all cases for seven years.

07:57 MS: Right. That's pretty stark.

08:00 LK: That's a stark one. And then of course, there's a lot of jurisprudence saying that there are particular kinds of penalties that are unconstitutional in our system. So that would include things like capital punishment, things like corporal punishment, those kinds of methods of punishment that are no longer acceptable in our society. But there was a real question, would a fine, and particularly a fine that at least to those who haven't thought carefully about the situation that marginalized people are in in our society, a fine looked fairly modest.

08:34 MS: Right.

08:35 LK: Yeah, and so some were surprised to see this majority opinion from the court, but when you dig into the reasons, you start to see, "Wow, the people that the court was thinking about here, they really are in circumstances where this fine is not payable." And they can mount. It could be hundreds of dollars, it could be thousands of dollars at the end of the day, and it really was serving no valid penological purpose. And so, I think the majority opinion just took a really realistic view at the life circumstances of people who are very low income in our society and just said, "You know what, no. We're not gonna say that this kind of punishment is valid in our system."

09:20 MS: So what was the foundation for the dissent?

09:23 LK: Well, the dissent, there were two judges in the dissent, Justice Cote and Justice Rowe, and they sort of said, "It's a very high bar to say that something is cruel and unusual punishment." They said, "There's only been three cases in Supreme Court history where we have found a punishment to be cruel and unusual." And that's true. And each of those were about prison terms in the range of three to seven years. And those are all fair points. One thing the dissent did that I think was a little odd was they tried to compare this punishment, this fine, to methods of punishment that no one would try to suggest were acceptable. So they talked about lobotomizing, they talked about castration of sex offenders, they talked about these kind of extreme corporal sanctions that are quite obviously no longer acceptable in either our society or pursuant to the Charter. And so I thought that comparison was a little bit extreme.

10:33 MS: Right. They're throwing up some straw men, kind of.

10:35 LK: Yeah, and there's something sort of American about that approach, right? This notion that Section 12 of the Charter is really only about saying that these sort of ancient methods of punishment cannot be used in modern society. And I actually think that Section 12 of the Charter, that it's okay for it to evolve and for it to represent the standard of a modern society and a society in which we understand that a fine for a very poor person is going to be a very different kind of punishment than it will be for someone of more means.

11:14 MS: Right.

11:15 LK: And so, really, what the majority judgment said was, "Listen, for a marginalized person, this is a very extreme punishment and you or I may not really get that, but when you dig in to the amount of income that some of these folks have at their disposal on a monthly basis, you realize this sanction is unacceptable."

11:35 MS: Right. So getting back to these rulings and what happens after these rulings, is it like someone just pulls out a big law cancelled stamp and stamps the law and it goes away? Or does it get sent back for adjustment?

11:47 LK: It's a great question 'cause in many cases, especially recently, where courts declare a provision unconstitutional like they did here, they'll often give government some time to fix the law. That's called a suspended declaration of invalidity, it's where you basically say, "We're declaring this law invalid, but Parliament gets some time to fix it."

12:07 MS: I fuzzily recall something about prostitution laws being in that category for awhile.

12:12 LK: Sure. I mean, most of the big Charter cases, the government did get at least a year to go and fix the laws. Why did they get a year? Well, it was sort of an idea that it was in the public interest to not just have a sort of vacuum, a gap in the law that we should give Parliament a chance to re-draft the law. In this particular case, they did not get that suspension. The judgment had immediate effect. The provision is unconstitutional, and that was because there really was no public interest that is being served by the imposition of these fines. There won't be any sort of problem for society...

12:51 MS: Right.

12:51 LK: If these fines aren't imposed.

12:53 MS: I don't wanna get too far down the rabbit hole of kind of the mechanics of the law that is now off the books. But where did that money go?

13:02 LK: As far as I understand, each province was administering the funds because the administration of justice in our system is a provincial matter, even though the criminal law is a federal matter. So actually, that was actually part of the case and it was interesting. Each province was enforcing collection of the fine in a different way. And so, that was an additional issue that the majority was concerned about, which was issues of fairness. For some, in some provinces, they were facing tactics by collection agencies and so on. And others in other provinces were not facing those kinds of challenges. So there was variation, but the purpose of the collection of the fine was supposed to be to support victim services, and the majority said, that was of course a perfectly acceptable government aim, but that it still didn't justify the sort of dysfunctions of how the provision was working.

14:11 MS: Right, so what happens next?

14:14 LK: Well, I mean this issue is kind of over.

14:17 MS: Okay.

14:19 LK: [laughter] The Supreme Court, as we say, gets to be right because it's last. I think in terms of implications of this decision, it suggests to me that many of the other mandatory minimum penalties that are still on the books are not valid.

14:37 MS: Right.

14:38 LK: There's been talk in recent years about a commitment that the governing Liberal Party made in its campaign, and while it was in opposition to reverse a lot of the work that the Harper conservatives did in passing mandatory minimums. They made these commitments. Many have noted that the liberals haven't acted yet on fixing mandatories, on removing many of the mandatories for drug and gun offenses that the conservatives and previous liberal governments brought in. They haven't acted on that. They're being litigated all over the country, just dozens upon dozens of cases right now where defense counsel are challenging mandatory minimums in all kinds of cases; they are being struck down all over the place. And to me, the most significant impact of this Boudreault decision is gonna be to say if a $100 fine is cruel and unusual punishment, then a six-month jail sentence, depending on the facts of the case and the offense of course, it's gonna be a lot easier for defense counsel to say that too is cruel and unusual punishment.

15:47 MS: And now that there's a Supreme Court ruling, we're a precedent-based system, so if the highest court in the land sets a precedent that this is cruel and unusual, it trickles down?

15:57 LK: Yeah, and in this way, definitely. And in this way, I would agree a little bit with the dissent. So the dissent was really emphasizing that in our history, this cruel and unusual punishment concept has been quite a difficult concept, as in it set a difficult threshold for people to meet. It's a very high threshold. You have to prove that it would shock, that the punishment would shock the conscience of ordinary Canadians. And I think many scholars, including myself, thought that that was really way too high of a bar. Why don't we have a system where punishment has to be proportionate and fair?

16:37 MS: Yeah.

16:37 LK: Otherwise, it's unacceptable. Instead, we had this rule that said, Parliament can kind of impose whatever punishments it wants, and as long as it doesn't reach this very high standard of shocking the conscience of ordinary Canadians, then it's okay even if it's disproportionate, even if it doesn't achieve a legitimate penological purpose, even if it doesn't really meet the other principles of sentencing in the criminal code. And I think the dissent is right to say, "This has been a high standard." And so I think the majority judgment does move the law in a different direction and does suggest to lawyers that the standard is not as high as we thought it was before.

17:19 MS: Right. I mean, even the words 'cruel' and 'unusual' don't imply shocking to me.

17:23 LK: Oh, really?

17:23 MS: Well, there's lots of stuff that's unusual that doesn't shock me. Like, I mean, a strangely shaped Cheerios unusual, but I'm not shocked when it lands in my bowl.

17:32 LK: Well, it does have to be cruel and unusual. [laughter]

17:35 MS: Right. Fair enough.

17:37 LK: But I think it raises an interesting point, which is, these are just words.

17:42 MS: Right.

17:43 LK: And they always require interpretation. And until now, I think it's true, I agree with the dissent, we have interpreted the standard as really requiring quite a lot, and I think this majority judgment suggests to us that this question of what we're gonna say is cruel and unusual, we're actually gonna be a little bit more rigorous in scrutinizing what it is that the government is doing when it comes to state punishment.

18:12 MS: Anything else to cover on the point?

18:13 LK: No, thanks for talking about the case with me.

18:16 MS: Thank you.

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18:16 MS: Thanks to Lisa Kerr. If you're interested in Canadian law, you'll be introduced to the basics in the Criminal Law Module of Law 201-701, Introduction to Canadian Law at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.

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With a painting from the late 1800s in the middle of a court dispute over whether or not it can leave the country, it seems like a good time to look at where our rules around culture and exports come from -- and how they work in the international art world (and elsewhere). What is the Canadian Cultural Property Export Review Board? How are these quasi-governmental bodies created, and how do they derive the power to decide what Canadians can buy and sell, import and export? Gerard Kennedy, one of the developers of Law 207/707, International Law, joins us to talk about art across the oceans, and where and how the government can exercise power over culture -- and our borders more broadly.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript: [music]

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00:05 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd and my knowledge of fine art pretty much extends to back issues of Spider-Man, but art is big business. And recently an interesting case hit the headlines where the export of a major work to a European buyer was blocked by a Canadian tribunal supervising our cultural heritage. Who are these people? How do they get the authority to decide what art we could ship to Europe? Where does their power come from? And were they right in their decision? Gerard Kennedy is one of our course designers for law 207707 international law, he's also an expert in public and constitutional law and the kinds of questions that these tribunals raise. He joined me from Ottawa via Skype. This podcast is brought to you by The Queen's Certificate in Law. The only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:13 MS: This has come up recently in the news, it's really interesting and it has to do with somebody who purchased a painting and tried to export it and then got stopped, basically. And it's interesting to me because it raises a whole bunch of questions about public and constitutional law and it's interesting also because you are actually part of the team that's developing the International Law course, for the Certificate in Law and in this case it's about something that is actually been blocked from going international, well was being blocked. But now isn't. So, do you mind, giving us sort of a quick run down of the situation as it is.

01:50 Gerard Kennedy: Sure. First, let me just say thank you very much for inviting me on the podcast. This is certainly a very interesting case in administrative law, which I am... Not only do I do international, but I had the chance to teach administrative law at Queen's last fall, and it illustrates a lot of the issues that come up in administrative law, so at a high level, this entity called the Heffel Gallery. It wanted to sell a painting, that it had in its possession called Iris bleus, jardin du Petit Gennevilliers, it's an 1892 painting by Gustave Caillebotte who was a famous French impressionist.

02:29 GK: It had held the painting for quite a while, it had been in Canada for more than 35 years. But the painting, because it was painted by this is famous French impressionist. It was listed as a painting that needed to pass a certain statutory procedure before it could be exported from Canada and as a result of going through that statutory procedure the Canadian Cultural Property Export Review Board, which we can talk a bit about its basis in a moment. It held that it was of outstanding significance and of national importance to Canada and as such, the export permit that the gallery sought should be denied. So in... Not being very happy with this decision. The seller sought what's called judicial review of that decision in the Federal Court and the Federal Court allowed the application for judicial review, said that the board came to an unreasonable interpretation of what national importance means in this context and they said it had to be reconsidered by the board with the practical implication, being that it could be exported.

03:42 MS: So this is all happening at the federal level.

03:45 GK: Yeah, it's a federal statute, has given the board this power and the Federal Courts Act, guarantees the ability to seek judicial review of the vast majority. We could talk about some theoretical exceptions, if we want, but they tend to be pretty theoretical, of decisions made by members of the executive branch of government, in the Federal Court. So, it does not go to a Provincial Superior Court, it goes to the Federal Court.

04:15 MS: So I think it might be helpful to kind of walk through this chronologically step-by-step. 1892 guy paints a painting, does a really good job of it, at some point between then and now painting winds up in Canada, someone in Canada wants to sell the painting and somebody outside of Canada wants to buy it. But at some point in the interim, the Federal government decided that we needed a law about what we can export from Canada that might be of cultural value, right?

04:42 GK: Yeah, the Cultural Property Export and Import Act is meant to govern outstanding works of art, that are relevant to the Cultural Heritage of Canada. There's a list attached as an appendix to the act that lists these works of art and before any of these can be exported it has to pass through an administrative process, and the rationale behind this law, makes a lot of sense. We wanna make sure that items that are of outstanding significance and national importance aren't exported from Canada, barring certain circumstances such as no one in Canada willing to hold it, and also respecting the private property rights of those who happen to hold it to dispose of them as they wish. It's not to bar in all circumstances a piece of art that's of outstanding significance and national importance from leaving Canada. But we have to make sure that if it is of outstanding significance and national importance that no one else in Canada is willing to give a fair chance to buy the property.

05:47 MS: So the Federal Government basically makes this law, they write the Act, the Act gets passed and the means of enforcing this act is the Canadian Cultural Property Export Review Board.

05:58 GK: Yeah, it is the body that enforces the act.

06:00 MS: Right, So this is a group of people, the board is empowered by the government to review anything that's gonna be taken out of the country as per this list, and then make a decision about whether or not it's allowable according to the terms of the Act.

06:13 GK: Correct. And in order to do so, they engage an expert who examines the piece of art. And they rely not exclusively, but appears largely on her determination of whether it's of outstanding significance in national importance. And not just that, in the interest of full disclosure, I know the expert retained in this debate, not well, but we've encountered each other through Massey College at the University of Toronto, and I have nothing but outstanding things to say about her as an art curator.

06:44 MS: Oh, excellent. So the Heffel Gallery wants to sell this painting, Iris bleus, jardin du Petit Gennevilliers. Since it is deemed to be of significance it has to go through the Canadian Cultural Property Export Review Board and they say, "Hang on, we've got two problems here. The first is Section 11-1 of the Cultural Property Export and Impact Act, says that an expert examiner has to review this and determine whether or not it's of national significance, and the expert-reviewer has said... The examiner has said "Yes it is." And second, there's this 29 sub-section 5 of the Act which says that there has to be an opportunity for an entity in Canada to have kind of made what they deem a fair offer to purchase it."

07:30 GK: So section 11 sub 1 of the Act allows a... Not just allows, but mandates that an expert examiner can determine whether the piece of art or object at issue is of outstanding significance and national importance. And Section 29 sub 1, refers to a hearing to determine what should happen if someone who wishes to sell the painting hasn't made a fair offer... A reasonable effort for someone in Canada to purchase the painting and prescribes a procedure later on in that section to delay the export of the particular painting for six months, so that there can be a fair offer to purchase the object by someone in Canada.

08:22 MS: So these were kind of the conditions under which the board said. Hang on, you can't go through. The Heffel Gallery can't actually sell this because we feel it's not meeting the obligations of the act. But The Heffel Gallery, you mentioned earlier, has the right to appeal these things to the Federal Court. So where does that derive from? What gives them the ability to take this to the next level? If the expert review board says you can't do this, what gives the Heffel Gallery kind of the right to go to Federal Court and say, "We'd like you to look at this again."

08:55 GK: This is where I think we should actually be pretty careful about our terminology. In that, what gives the right... The Heffel Gallery has the right not to appeal, but to seek what's called "judicial review of the decision." All executive actors in Canada need to act in accordance with the law, usually legislation, that gives them their power. And in order to preserve the rule of law in our society, you always have the option to go to a court... I shouldn't say always... Almost always to ensure that the executive actor acted in accordance with their legal obligations. Historically, you would have had to bring this case in a superior court of a province, but according to the Federal Court's Act, federal government decisions are generally... They have their judicial reviews, heard in the Federal Court. And section 18.1 of the Federal Court's Act directs the vast majority of applications for judicial review made by federal government decision makers to go to the Federal Court or sometimes the Federal Court Appeal rather than a provincial Superior Court.

10:18 GK: Judicial review is a constitutional right in Canada to ensure that a decision that's made that affects someone is in accordance with law. Now, it's important to flag here that the amount of... The number of people in the executive branch of government, likely numbers in the hundreds of thousands, certainly in the tens of thousands, whereas the number of people in the legislative and judicial branches of government, even looking at all the provinces, would render in the low thousands, at most. And we don't want the courts second guessing every decision that an executive actor makes. At the same time there's no such thing as unlimited discretion. So a complicated case law has emerged as to when and under what circumstances judicial review should be permitted. Generally speaking, you don't get a chance to make your case again, you have to show that the decision maker, whose decision you're reviewing, acted unreasonably not just incorrectly or as the judge would have decided. But the ability to review the decision to ensure that it doesn't offend the rule of law, that's constitutionally guaranteed In Canada, there's a presumption it's to be brought in a provincial Superior Court.

11:40 GK: But so long as that right is allowed in another form, legislators are allowed to direct you to another place, and the federal government did that here by allowing you to review the Canadian Cultural Property Export Review Board's decisions, in the Federal Court.

11:58 MS: I'm in error by saying that this was an appeal, it wasn't, this was a request for a judicial review.

12:03 GK: It's a request for judicial review. Now admittedly, some government statutes direct you to have what they call the statutory appeal of an execute actor that looks a lot like a judicial review, and sometimes this distinction of terminology can become blurry, but properly, this was an application for judicial review, and not an appeal in the way that you would appeal the decision of a superior court judge to the Court of Appeal.

12:35 MS: Okay, and so what the Federal Court came back with was, we disagree with the Board, we think they may have been over-reaching slightly in their interpretation of cultural significance at the end of the decision, it says "The matter was referred back to a differently constituted board for reconsideration". So what does that mean, does that mean they have to have different personnel on the board to take another run at whether or not this is allowable?

13:06 GK: In essence, that is what it means. Generally speaking, a remedy on judicial review is not to remake the decision, largely because the Federal Court or any judicial reviewing judge doesn't have the power to remake the decision. They simply have the power to ensure that the original decision maker acted in accordance with law. So there will have to be a new panel of the board decide whether or not the export is permitted, but in light of these findings of the Federal Court, which are binding on the Board, unless something drastic has come up, and even that would require issues that shouldn't have been raised before, it looks as though this is going to be permitted.

13:55 MS: I think because I've watched a lot of television, and seen a lot of movies, it's all very dramatic in my mind. But ultimately, this isn't the Federal Court saying "No, we reject their decision. Get out of here, you guys", all they're doing is saying... "I think you need to rethink this", and sending it back and saying, "Let's reconstitute another panel and just take another look at the issue, given the context that we're giving you back".

14:19 GK: True, but there's reconsideration and then there's reconsideration. The Federal Court has decided what they think this act means, and specifically, that the original panel of the Board came to an unreasonable determination of what it means. If the new Board comes to the same determination as the original board did, it will have ignored a precedent from the Federal Court that's binding on it. And then we'll just be back in this situation again. It's possible that new information about this painting will be presented towards or before the new board, that will essentially mean that even under this higher standard of what constitutes national importance, the export will still not be allowed. That strikes me as unlikely, but you never know.

15:12 MS: But we're in a precedent-based system. So kind of what's happened here is the Federal Court has raised the bar slightly to determine works of national significance.

15:22 GK: No, I wouldn't even say they deem something slightly, they raise it slightly, in determining that it's of national importance. They've said it has to have a lot more connection to Canada than this particular painting has.

15:36 MS: And we're a precedent-based system. So this is not a one-off thing that's happening, this is something that's going to change the work of the board going forward.

15:44 GK: Absolutely, it will, yes. I think it's important to emphasize that the court didn't decide that the decision of the board was incorrect. They decided that it was unreasonable. On applications for judicial review as I already mentioned, there is a presumption that in interpreting its home statute, an administrative decision maker is to be given deference in terms of what the statute means. And one thing that struck me while reading the decision is whether or not the Federal Court judge was giving sufficient deference. He certainly makes a very persuasive case as to why an object needs to have a lot of connection to Canada before it can be deemed of national importance within the meaning of this Act, and why the opinion rendered by the board, appears to be constraining that excessively broadly, so that any work of outstanding significance that would be important to study or demonstrative of one of the great cultures of the world that makes up Canada's multicultural heritage would be of national importance to Canada. The judge explains why he thinks that that just is fundamentally unreasonable, but it's not a opinion that has as much deference as we sometimes see in applications for judicial review.

17:20 GK: The amount of deference that can be seen in different applications for judicial review definitely varies, in light of the circumstance. I think the Supreme Court is gonna have to deal with this issue fairly soon, because it says, it's gonna reconsider the framework of judicial review of administrative law decisions. But that is something that struck me, like how much deference was appropriate. Did the judge give it? I certainly thought he was, [17:47] ____ bode a very persuasive decision, but as someone who reads a lot of judicial review decisions, that was one thing that was going through my mind while reading it.

17:56 MS: Well, thank you very much, Gerard.

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17:58 GK: You're most welcome.

18:02 MS: Thanks to Gerard Kennedy, one of the course designers and instructors for our International Law course. If you're registered for the Certificate in Law you can sign up for Law 207707, International Law, right now. The course begins in January, 2019. If you're interested in Government and Legislative Authority in Canada, take a look at Law 205705, Public and Constitutional law. You can find out more about the certificate and all of our courses at takelaw.ca. Fundamentals of Canadian law is recorded at Queen's university, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valérie Desrochers. You can see them at takelaw.ca and visit Valérie's portfolio at vdesrochers.com. Thanks for listening.

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Recent headlines about the CRTC, and a Bell-led consortium against piracy, are making waves on the Web right now. What's the CRTC role in combating Internet piracy? What is Bell and other internet service providers' place in the discussion? Margo Langford, who is part of our Law 206/706 course, Intellectual Property of Law, is here to help. We talk about the CRTC, the Bell consortium, and piracy law, but also some of the history of copyright on the Internet, why Napster might have survived in Canada, international legislation, and much more. This could be its own podcast!

If you're interested in IP issues, check out Law 206/706, Intellectual Property Law, at takelaw.ca. This course is a must if you're interested in patents, trademark or copyright -- whether you're writing a novel or crunching code for your new app, it's essential to understanding your rights in Canada.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.

Transcript:

00:00 Matt: What I've seen and I know we're gonna go somewhere different with this, but what I've seen is this... The CRTC decision to deny Bell and a number of other organizations who's kind of formed a group kind of this sort of advanced power over privacy, and that's the headline that I saw flying past me. So I thought it might be useful to start with what is the CRTC's role in copyright enforcement in Canada?

00:26 Margo: Yeah. When I read the decision from the CRTC I actually understood that the collective of broadcasters and web owners were actually trying to get a website up, or technology up, to block infringing content. So not so much privacy as it was illegal use of other people's content, what we call piracy in the copyright world. So what they were trying to do was get CRTC really to step outside of its traditional mandate, which is a regulator of content and of rates for the broadcast industry and the telecom industry, and get it to step into the copyright world. We have a copyright board and it also doesn't deal with infringement, it deals with tariffs for the use of other people's content in a legal context.

01:20 Margo: So what we've had in Canada forever and in most countries in the world are both civil and criminal private rights of action where the rights owners, who have their content infringed, collectively or individually go to court. So they either sue or they try and get the police involved. In our copyright law in Canada, we have both. You can take a criminal action but it's very difficult. Having been a pirate buster myself I can tell you, extremely difficult to get the police involved. And they only do it really, if there is a criminal who has a rap sheet already and they're using it as a way to bring that person into the justice system. So, we generally have formed collectives in Canada and we go back to the early 1920s with the composers forming the first collective, which was called SOCAN, and since then just about every kind of rights group has formed a... Content rights group has formed a collective. So we've got them for... We got CanCopy for book publishers and we have, well, just a myriad of them and I think in the music industry alone because we have... Quebec has separate ones, we have about six music rights collectives that go out there and look for pirated material and take action.

02:40 Matt: Right. And I've seen, if you, as a for instance, if you go to a bar and you're being served and you look behind the bar tender you can often see like the SOCAN License to Play sticker somewhere saying that they've worked through this collective and they're paying a fee for a tariff and that gives them the right to play copyrighted music in their establishment.

03:00 Margo: Right, because it's a commercial establishment, which is different than playing it at home.

03:04 Matt: So we've got this kind of tiered... I don't know if tiered is the right word, but there's a system under which kind of there's regular folk who access this music through the radio or they hear it at the bar, they hear it in a store, they hear it in the mall. Then there are these collectives that basically allow people to pay money for tariffs that give them the right to play all this music that we're hearing in these various places.

03:28 Margo: Right, or they can incorporate it into a film or to make multiple copies on campus for publications they wanna use, etcetera. So yeah, depending on what the content is, somebody somewhere, if you're using content or seeing content in public, chances are somebody has a licence and somebody's paying.

03:48 Matt: Right. And then there's a fuzzy part, that I'll get to in a second, and then there's the CRTC, which is I feel like it is more of kind of a regulator of sort of the infrastructure of it all.

04:00 Margo: Correct.

04:01 Matt: So they give a radio station a license to be a radio station, but they are not responsible for the licensing of the content of the radio station.

04:10 Margo: No, except that in Canada we decided that it was really important to have Canadian content. So they regulate, they put some rules around those licenses and so they have a certain minimum amount of Canadian content that has to be produced, for example, but they don't actually regulate things like infringement of content.

04:28 Matt: And the fuzzy bit in the middle that I don't quite understand is sort of Bell, as they seem to be kind of the public face of this group, they are now getting more involved in terms of saying we want to set up and do things to block infringers.

04:43 Margo: Right. And so, interestingly, there was a collective of the web service providers back in the late 19... Like about, I would say, 1995 through to sometime, I think, the group disbanded somewhere in the 2000s. It was called the Canadian Association of Internet Providers and I was actually part of that and was actually chair for a while. And we formed this collective exactly for reasons like this, which was that collectively, we were all experiencing challenges with content, some of it very illegal and criminal and nasty, and so we wanted a whole bunch of rules about first of all what ISPs would do, and then what the content owner could do. We came up with a kind of what we called "notice and notice." So in the United States they were doing something already, being that much ahead of us in the internet called "notice and take-down." So basically I would give an ISP notice that their... My music is being infringed on that particular website and basically they took me at my word in the United States, and they took it down and that caused them, of course, some problems as well because something that's... Might not actually be true. And what kind of proof was required to say it was mine and all of those kinds of issues. So we decided... And there was also the issue of privacy and maybe this is where the confusion comes in.

06:17 Margo: If I wanna deal with a website I have to know who owns that website. And I can't deal with them directly, so I have to go through my ISP, but ISPs had locked lips about who their customers were. And so they didn't want to disclose to any old third party who would show up saying, "I have a right and this guy is infringing it." Because that would be sharing their customer information. So they had... We came up with something called notice and notice, which was basically, "You tell the ISP you got a problem and the ISP will tell the owner of the website." And if they think that they have a right to be using that then they come back with their information on how they got the right to use that piece of content and why they're not gonna take it down.

07:07 Margo: Notice and notice worked really well in Canada, we didn't have then any of the problems about disclosing customer information. People generally took them down because they didn't know, there was so much content in the internet. It's very hard for an ISP or a website owner, even. Some website owners are liable for it because they've put the content up, but for an ISP to know whether or not content on somebody's website is legal or not would be impossible. So that worked for a while as a voluntary method, and then in 2012 when the Copyright Act was amended, that went into actual formal law. So that's actually what Bell and Rogers are trying to do in the... The system they were trying to set up through the CRTC was actually a notice and notice system, which basically says, "Internet providers have the right to remove or block access to content upon receiving notice." So it was pretty straightforward, they just didn't wanna have to do it themselves and they didn't have a collective to do it, and they thought the CRTC should or should at least allow them to create a technology means of doing it.

08:16 Margo: And then they basically said, "No. I guess what you got going now is good enough, it's in law, you can form a collective to do it if you want, and do it yourselves the way other rights groups have done it. But we're not gonna start taking on or allowing you to have some sort of hyper rights to deal with infringement."

08:40 Matt: So the CRTC's take was kind of, "This is out of scope for us to say yes or no to?"

08:44 Margo: Yeah, I think that's really what it comes down to. They've never been in the infringement world and they're not about to step into it.

08:51 Matt: Right. So as someone who's been involved in this in the past, I guess my natural curiosity... My curious question is, why do they care? If you build a road, you're kind of agnostic as to whether the traffic on that road is criminal or not criminal, so if you own the pipe, why do they feel obliged to be involved in what traffic is going through the pipe?

09:17 Margo: I'm not sure why they want to be. Maybe they just feel that they lack the tools to do it effectively. And 'cause the last thing on earth we certainly wanted as a collective of ISPs, was to be in any way liable. And there was a case, it went all the way to the Supreme Court of Canada, basically, about common carrier liability. Whether or not if you were just a pipe, whether you would be liable for the content, and it ruled in favour of the ISPs. It says, "No. If you're not actually aggregating the content yourself then you are just the pipe, then you're not liable." The second... There's a lot of hybrid rights, so a lot of ISPs are also website creators and owners and builders and whatever. So the second that you move into the content creation side, well, then you're wearing a different hat and then you could be. So I think also all of these companies are such hybrids now. It may be that from their content side, in their content creation side, they wanna protect their own content and they wanna block illegal content.

10:18 Matt: So there's a certain amount of, they may in fact own IP that they want to protect and that they're trying to facilitate the means of protection through this method they have devised.

10:31 Margo: But of course the world is completely international, in terms of the internet and where most of the infringement is taking place.

10:37 Matt: I was gonna say, we've been talking about this in a Canadian context, but you're right, it's an international issue. My internet access is not Canadian, my internet access is global. So how is this affected by international treaties and international agreements?

10:51 Margo: It's terribly difficult [chuckle] because the copyright laws, although very similar because of treaties, in which basically are that they're kind of normative setting guidelines for countries to form their laws around some agreed upon principles, but there's wrinkles in everyone. So the Canadian copyright law's slightly different than the US in a number of ways, and then the treaties are not always ratified by all the countries in the world. So not everybody is playing by the same rules, but generally over the last 100 years it's been fairly well harmonized. Interestingly, we've just formed another treaty, and that's with the US and Mexico. And there were some issues around copyright that had to be harmonized. One of them was the length of copyright.

11:41 Matt: Yeah, things are longer now.

11:42 Margo: Yeah. We expanded to 70 years, it was 50 in Canada, life of the author plus 70 years now, which gives the owners more protection. But the other one was actually the notice and notice story. We do not have the same regime, as I was mentioning, as the US, they have notice and take-down still in their law. And we got an exemption, and we are allowed to continue with our notice and notice, which is actually fantastic because it's really working. I don't know if it's working in the States, I really can't speak. But I've been in-house counsel in an ISP and I've been involved right in the front end of getting a notice and what we do with it, and I have been involved with a lot of content owners trying to protect their rights. And as far as I'm concerned, we have a pretty good regime. The problem is that when the infringement is taking place offshore, you really have very few tools.

12:41 Matt: I think there's a pervasive understanding that things are different, nation to nation, and this idea that there are different rules in different places, so if you have got something that originated in this place, different rules apply. Copyright happens in the country that things start from, right?

12:58 Margo: Where the creator, yeah, has made whatever it is, what piece of content they've created is the origin of the copyright. But the interesting thing about the internet, it brought on, I think, I would call the era of technological measures to actually address infringement. We really can't do it with laws super inefficient to try and sue somebody. So what's really happened is people try to lock down their content with tools, so you can't get access to content that's... People probably are most familiar with it with Netflix, because you can't get content that's not licensed for Canada on Canadian Netflix. It's just the way the rules work and technology permits that to happen. Napster being one of the more fascinating stories about the genesis of these technology tools, and the difference between Canada and US copyright law. Because if Napster had actually been in Canada, they wouldn't have been guilty of anything.

14:02 Matt: Really?

14:02 Margo: Yes, because we have something in the United States called contributory infringement. So the fact that it was a website that allowed people to file share in the United States was contributing to the infringement and therefore they were liable. But if they'd been in Canada, and they'd set up their service on a Canadian server and then a Canadian company, we don't have contributory infringement and they would have just been that common carrier. They put the technology there and they allowed people to file share and they weren't actually doing the copying. That's been an interesting thing to watch as well.

14:41 Matt: I think we could talk for days about this. I think one of the things I kind of understand about this is it matters where the data resides. So if I have a website, I'm sitting here in my office in Canada, I make my website in Canada but it's hosted by Squarespace, and the actual server's in LA, so that's now a US law thing around the data because that's where the server is?

15:06 Margo: Still probably a little bit unsettled law.

15:09 Matt: Okay.

15:10 Margo: Because it's really hard to say. Sometimes it's where it's been uploaded from, and this goes into satellite law, that was the first upload and download copyright cases. I don't think we have enough body of law yet about whether the law of the server applies or not, there's cases on both sides of it.

15:32 Matt: Right. Anyway... Again, it's fascinating, pads off in all directions, but back to the core idea of, there was a consortium that wanted to implement new anti-piracy measures and the CRTC said no. Is there anything we haven't covered there that we should unpack a little bit?

15:50 Margo: Well, I'm just gonna circle back and say the thing about Napster is, it was created in a vacuum before all of the music companies could get together and create their own aggregate site. And so there was something called The Madison Project, IBM was actually... Had all of the music companies on board into this project, and they were trying to come up with their own Napster before Napster appeared on the scene. And they had challenges trying to get those music pieces licensed from the composers, because they were individually licensed in all different countries and people weren't willing to give up their royalties. And so by the time they got all the legal stuff worked out, they lost the window of opportunity to go to the public with an offering. You saw a little better job when it came to iTunes, when they finally got some act together, but that's such a small part of what music is actually being consumed on the internet. I think, I don't know, I've heard somewhere between 1% and 10% of the music's actually paid for on the internet. So we now have a whole generation of people who believe that it's okay to infringe anyone's content, that content is free. And I think we have some major challenges for creators as a result.

17:07 Matt: Right. Sorry, when you're saying 1% to 10% is actually paid for, does that 1% to 10% also include streaming, like Spotify, Google Play?

17:14 Margo: Mm-hmm, mm-hmm.

17:16 Matt: That's... Oh, wow, that is very different than I thought.

17:18 Margo: Yeah, yeah. The illegal is far eclipsed in the decades that ensued since Napster. It's just grown as opposed to shrunk. And so part of that is there's been the resistance, I think, to use the technology tools to stop people from actually getting access to content. So in part that is because people got so used to being able to get it, so now it's viewed as, "Well, we'll release some of it for free because this will build a fan base," or whatever. But it is... I have represented many musicians in the interim, and it's very hard. Your income is extremely dispersed now. You might make a few bucks on each of the websites that you put your songs on, but you're not making the kinds of money you used to get with mass sales of records.

18:08 Matt: And so I guess the last question for me would be, Bell et al have put together a consortium and said, "This is something we want to do." And the CRTC has said, "Not really our bailiwick to say yes or no to this so we're not going to say, 'Yes, do it.'" But they're clearly not gonna give up. So where do you sort of go from here? Where would they take this?

18:30 Margo: I do think that they can just do it.

18:33 Matt: Okay.

[chuckle]

18:34 Margo: As Nike would say.

18:35 Matt: Right.

[laughter]

18:36 Margo: That I think they know they... They did have a mechanism before as a collective to take collective action because obviously one company doing it on its own is, again, not really the answer, but they could create, either with the group they have now or expand their collective and do it themselves.

19:00 Matt: You've been very generous with your time, so I don't wanna get into another whole thing if this is another whole thing, but is this... Does net neutrality plug into this argument at this point or is that a sort of a different ball of wax?

19:12 Margo: I think it's a very different ball of wax.

19:13 Matt: Okay.

19:14 Margo: That's really about access to the internet.

19:16 Matt: Right.

19:16 Margo: Well, I guess it get does play in in that people are talking about walled gardens, of creating, again, the technology's limited access for content. I don't think we've got enough to... I don't think we've figured any of this out well enough yet.

19:34 Matt: Right.

19:35 Margo: [chuckle] I just think it's sometimes happening much faster than all the existing mechanisms that are in place can react to it.

19:43 Matt: Well, we may have to check in again at some point soon about this or start a spin-off podcast, but for now, thank you very much, Margo.

19:49 Margo: It was a pleasure to be here, Matt.

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Solitary! The Liberals say they're ending it. But I thought we didn't have solitary in Canada, so what are they ending? Who does this affect? Does it even really matter? Let's find out with professor Lisa Kerr, author of our Criminal Law module in Law 201/701, Introduction to Canadian Law. She'll take us from the history and status of solitary in Canada, to the details of this legislation, and what we can find out about our current system and its failings by reading between the lines of what's being proposed.

Interested in crime, punishment and justice? Look into Law 201/701, Introduction to Canadian Law, where we cover the topic in a number of modules. For how the legal sausage really gets made, you can take a deep dive in Law 205/705, Public and Constitutional Law, a full course on how our governments relate to each other, and us, and our rights.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

Welcome to Fundamentals of Canadian Law

I'm Matt Shepherd, and I don't know enough about prisons. Certainly not enough to understand the background, or the implications, of the Liberal government's recent promise to "end solitary in Canada." Fortunately, I know somebody who does: Lisa Kerr is one of Canada's foremost experts on sentencing and prison law, and is also the instructor for the Criminal Law module of Law 201/701, Introduction to Canadian Law. She sat down with me to unpack first the definition of solitary confinement in Canada, the differences between our federal and provincial prison systems, and what's so important about this new federal legislation that promises to end solitary forever.

This podcast is brought to you by the Queen's Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.

00:06 Matt: What is solitary?

00:11 Lisa: Well, solitary confinement is the practice of placing inmates in cells for most of the day and night. So in Canada for the last couple of decades, we've put people in solitary and they've had to stay in their cells for 23 hours a day. In the last year, we've had some improvement and that rule has been changed to 22 hours max a day in cells. But yeah, it's basically the practice of separating inmates from the general prison population and isolating them in cells.

00:41 Matt: So, is this... I know very little about it. I know that this is a federal liberal decision or plan that we're talking about, but solitary isn't something that exists only in federal prisons.

00:54 Lisa: Certainly not, it's a practice encounter that we've had in the federal penitentiaries and it's also widely used in provincial facilities. It's also used, even on remand population, so people that are awaiting trial that are actually formally innocent and are facing charges and prosecution. So it's very widespread, and it's basically why do prisons and jails do it? They do it because they have some... They're having some challenge in terms of how to manage a particular person in the general population and then that... But that might be because this is a person with mental health needs, it might be, 'cause this is a person who's having trouble getting along with other inmates or it might be because a correctional officer has a sense that this guy is troublesome in some way. So there's lots of reasons why people get placed in segregation, ranging from unlawful human rights violating reasons to more legitimate managerial challenges that prisons face.

01:56 Matt: I'm noticing that you're saying segregation, you're not saying solitary.

02:00 Lisa: So the technical official language in the legislation is segregation. To me, it's a synonym. Solitary confinement, as we've known it in Canada, is synonymous with what is endorsed in the legislation as administrative or disciplinary segregation. And there were many years where Corrections took the position, "Well, we don't have solitary confinement in Canada, that's nowhere in our legislation. That's an American practice, that's not something we do." Thankfully, that battle is behind us at this point, and there's no doubt that this government accepts that we have been doing, what is effectively solitary confinement and that is this practice of keeping people in cells for 23 hours a day and subjecting them to sensory deprivation, social isolation, occupational deprivation, and there's of course now a large literature on the mental and physical harms that flow from that level of isolation.

02:58 Matt: But I mean... And I guess, again, naive and largely informed by a lifetime spent in pop culture. I've always just kind of thought that solitary was for the worst of the worst. It's how you... It's where you put the people who are super bad.

03:10 Lisa: It's a common presumption that anyone who gets thrown in the hole is the worst of the worst. And at this point, what we're... What is very clear from the empirical evidence is that people with mental health problems are actually vulnerable to being placed in segregation. Why is that? Because they're the ones who often have a difficult time managing in the general prison population. So general population is quite a demanding environment, socially speaking. You have to be able to navigate complex social arrangements, you have to be able to manage friendships in complex ways, in ways that in ordinary society we're really not put to challenges like that, you have to manage your relationships with correctional officers and do all of this amid conditions of serious social deprivation.

04:02 Lisa: So people with mental health challenges often don't do well in the prison context, and so they're at risk because for correctional officers, they have to somehow manage, manage the prisoner society, and so where people are having difficulties there's only so many resources and options that correctional officers have, and in recent decades placing someone in a solitary cell, is one way of dealing with the problem. But of course, people with mental health problems are not the worst of the worst, far from it, they're people who need more meaningful social supports and more meaningful programs and interventions than other inmates. And so this has been one of the real dysfunctions of the use of solitary is that the mentally ill are at risk of being placed there, at more risk than other inmate groups, and the effects of solitary are more severe on them.

04:55 Matt: Then that raises... Just to put a fine point on it. You don't get sentenced to solitary. When you get sent to prison, the judge doesn't say, "I'm sentencing you to solitary." It's just he sends you to prison. And segregation is an administrative decision.

05:09 Lisa: That's such an important point, it's absolutely correct. The sentencing judge has no idea whether the person before them is going to serve their time in solitary or not. And in fact, I think if a sentencing judge were aware of this issue it may actually impact their decision not only whether to sentence you to custody, but what the length of that sentence should be, given that it's a much more severe form of state punishment. So it's true, the reasons you get placed in solitary have nothing to do with the offence you're convicted of. And I do think this gives rise to real problems in terms of the proportionality of punishment in our system. I think the most famous case in Canada, and the case that really activated a national consciousness around this issue is the case of Ashley Smith, and she was of course 19 years old when she died in a segregation cell having been held there for many months and Ashley Smith had committed no remotely serious criminal conduct in the community. When she was placed in juvenile custody, she'd done nothing more than throw crab apples at a postal worker. She had difficulties as a young person, no question, but nothing resembling serious criminal conduct, and yet she was subjected to the most severe form of state punishment in our system.

06:32 Matt: So, and this sounds like... You were alluding to this earlier, it's... It is an overstressed and in some cases probably not that well-trained system in terms of people making this decision as something they see as a tool in the toolbox and not necessarily understanding how to use it in the most appropriate way.

06:50 Lisa: Well, sure, it's one of the only tools in the toolbox, and that is... I think this new legislation that the Federal Liberal Party have just tabled. You can see indications in this legislation that we're gonna listen more to healthcare professionals commenting on whether a segregation placement is appropriate or what's called these placement in these structured intervention units that the new legislation talks about. And so I think there is a growing recognition that this has been one of the only tools in the toolbox for correctional officers and that we need to move away from it, particularly where it has negative health effects and that we need to invest more in our system to delivering interventions and programs that might assist inmates rather than placing them in segregation and seeing their condition and personality deteriorate.

07:50 Matt: So let's talk a bit about the new legislation. What's in it?

07:55 Lisa: Well, the main... It's interesting, there's been a couple of... This is now the second draft bill we've seen in a year from the liberals, so they've taken a couple of different sort of shots at this, and this new bill is really a different approach than what we've seen before. Previously over the last couple of years the Liberals have added some procedural protections for those placed in segregation, so some limits on reviews and the timing and so on. Whereas this new bill you're hearing the Minister of Public Safety, Ralph Goodale, promote this bill by saying that it's really about ending solitary. And in a significant sense, it does do that.

08:35 Lisa: So, the sections in the prison legislation that allowed administrative segregation, which was sort of the most nefarious practice of segregation, those provisions are repealed under this legislation; would be repealed. So the word segregation will no longer even appear in the legislation, they are replaced with what's called legislation that allows the use of what's called "structured intervention units" and the really important change here is that inmates who are placed in these units... No, inmates can still be separated from the general prison population and for the same reasons as before, but now they'll be entitled to get out of their cells each day for a minimum of four hours, and for two of those four hours it has to be for some sort of meaningful social contact or intervention. So there's still problems with this new bill and there's critics who are already asking whether it's gonna be segregation by a new name or segregation light. But I think it's significant to really change the sort of culture around just abandoning someone in a cell for 23 hours a day and instead saying every human being in our prison system is entitled to contact with other people and to some form of programming and to be out of their cells for at least a few hours a day. I think that's an important shift, and this legislation promises to do that.

10:04 Matt: So do you think it will pass?

10:08 Lisa: I do, I think that... I think this government... I mean I'm not an insider in the legislative process, but from what I hear, this government is committed to getting this legislation passed before the election and they really do, I think, want to be the government that ends solitary confinement and that implements, in some way at least, the inquest recommendations following the death of Ashley Smith. They're also facing two major charter lawsuits that are now set to be heard in provincial courts of appeal in Ontario and British Columbia. And the the legal effect of the judgements that we've already had in those cases are that the current provisions that allow administrative segregation, are set to fall, they've been declared unconstitutional. There's been a sort of delay in the effect of those judgements to give government a chance to respond, but those provisions are soon going to be void.

11:10 Matt: Right?

11:10 Lisa: So, the government really did have to act, given that that litigation is... The results of that litigation.

11:18 Matt: So this is a bit kind of spinning, at the end of the day. They're sort of getting ahead of it and saying, "Look, we're doing something great," when kind of the writing was already on the wall, and they were gonna be put in that position regardless, right?

11:28 Lisa: Look, they're government, they're government, they're trying to do multiple things at a time and they're always... And they're always having to choose what priorities they have, at any given time. This government when it came to power in those mandate letters that were released from the Prime Minister to his various ministers, they said the Public Safety Minister was directed to implement the Ashley Smith recommendations, did they work on that on day two? No. But it's not surprising that, especially when it comes to prisoner rights, this is not a... Prisoners aren't a group that most government spend time working for, unfortunately, they're a very marginalized voiceless population, so it's not surprising that pushing through with lawsuits even when we had a government that indicated willingness to reform was still hugely necessary in pushing this to the top of the list. Public Safety Minister is probably one of the busiest ministers in this government and I think that it's understandable that it took... That it took ongoing pressure to push this legislation to the top of his to do list.

12:46 Matt: So, constitutionally the way this kind of radiates out is all crime is federal, at the end of the day. Criminal law is federal law. There are federal prisons, but there are also provincial prisons. But any decision the federal government makes we kind of radiate down to the provincial level.

13:03 Lisa: That's a nice idea. That sounds like an idea you could explore in a law review article. The idea of radiating down. [chuckle] It's not that... That might be right in theory, but the practical reality is that this is a reform that's only for the federal prison legislation, the provinces are really another story and every province in this country does some form of segregation. Ontario does have a new corrections act that's very, very good, following the work of Howard Sapers working with the previous Liberal Government in Ontario. So things are much improved in Ontario after decades of real abuse of segregation, but that same work needs to be done in other provinces as well. Now, if it's a court case, if these court cases on segregation continue and wind up in the Supreme Court of Canada and there's a judicial declaration that the charter generates certain boundaries in terms of how the state can segregate inmates, that would be legally relevant at the provincial and federal levels, and that can be one of the advantages to doing things by way of constitutional litigation 'cause that's the law of the land. But the Liberal Party is only a... Or the federal government and the Liberals right now are only able to legislate with respect to the federal prison system.

14:32 Matt: It's a tricky thing for someone that's not well-versed to navigate. The idea that criminal law is federal law but prisons are administered at different levels of government and it's not necessarily easy for a decision made for the federal prison system to also automatically apply to all of these quasi-independently administered other prison systems in Canada.

14:52 Lisa: Yeah, so charter law, constitutional law, applies across the country, that's the law of the land, so the provinces and the feds have to abide by it. But the federal government has authority over penitentiaries, people who've been sentenced to custodial sanction of longer than two years go into that federal system, and our provincial governments have authority to run provincial jails, and that's where folks with two years less a day or folks who are waiting a trial, a remanded population, are housed in those provincial institutions. Yeah, it is sort of unique division of labour in Canada.

15:32 Matt: And one of the things about this particular piece of draft legislation is it's pretty readable and I say this fairly often, the law is more accessible than I think a lot of people think. It's fairly concise. It gets to the point pretty quickly and it really is just centred around this idea of structured intervention units. It's not a long, rambling document. It just basically says, "Look here's what we intend to do. There's no more of this. And from now on, we're gonna do that instead."

16:00 Lisa: Yeah, so I do, I agree with you that it's readable and you can look. And I think many people are, even law students are somewhat resistant to reading legislation. They often... They like reading cases [chuckle] but they're... And you have to teach them, "Listen the answers are in the legislation and the legislation governs more than a judge does. So look there first." But what you do have to have a trained eye for here is to sort of see the discretion that is conferred on prison officials in this legislation. So for example, grounds for being transferred to one of these units, and these are the exact same grounds as previously existed for transfer to segregation, if an inmate is jeopardizing the safety or security of a penitentiary. So that's a ground. What does that mean? That's an incredibly broad idea, it's very ambiguous. And so I see that and I see, "Okay, who gets to decide safety and security of the penitentiary?" It's not a judge, there's no independent oversight set out in this legislation, this is prison officials, they're the ones.

17:07 Matt: Who gets to decide what threatening is?

17:09 Lisa: Totally.

17:09 Matt: Is it something you said, is it a look in your eye?

17:11 Lisa: Well, exactly, and something you've said and a look in your eye has definitely been part of the story of people being placed in segregation, often for very long periods of time, and with very little access to legal counsel, with very little ability to go to the courts and have these kinds of discretionary decisions challenged. So, it is readable and it looks fairly simple, but when you're aware of the dynamics, the power dynamics inside of punitive closed institutions, and the ability of prison officials to really decide for themselves without external review. I personally would prefer to see more specificity and detail in this legislation. Now, some of that comes by way of policy. So there's layers of rule making that goes on in this context, and this is the highest layers, this is legislation, and so there are regulations and then there's also policy and there is going to be more details, and that's often, actually, a lot of where the action is here. But often, as prison reformers we're trying to convince Parliament to put more detail and more discretion constraining standards into the legislation because prison officials know that is ultimately what governs me and I'm not allowed to do... To make decisions or to do things in a way that violates that legislation. So we're usually pushing for that to get more complicated.

18:35 Matt: Right?

18:35 Lisa: Yeah.

18:35 Matt: And that's again, it comes back to the idea that no one's actually sentenced to this, and it's an administrative decision and clearly there's a lot of flex in terms of what this actually says about how those decisions are made. Jumping back, the couple of points you mentioned two hours a day of meaningful interaction. My immediate question, "What is meaningful?"

18:53 Lisa: Right?

18:54 Matt: That's another point of who gets to determine what that means in terms of what does it mean to give someone meaningful interaction?

19:02 Lisa: Well, and I'll tell you, among the prison advocate community that was sort of debating the merits of this bill over the last few days, a few of us have said, "What is meaningful human contact? How... " And sort of saying, "I'm sure it will be oh, so meaningful."

19:16 Matt: Right? Is there a, "You must be in contact with more than two, but no less than... " It's an interesting... It's a lot of interesting language.

19:25 Lisa: Well, exactly, and it says... Let me give you the exact language. It says, "Provide the inmate with an opportunity for meaningful human contact and an opportunity to participate in programs and to have access to services that respond to the inmate's specific needs and the risks posed by the inmate." So I look at that and it could be implemented beautifully, or it could be so bare bones. And I think the fact that they had to spell this out in the legislation tells you something. Okay, it tells you that in the past even though inmates were entitled in the past to an hour or two a day, they were often being taken out of their cells and put into another empty room for an hour or two. This legislation also specifies that if you're out of your cell for a shower that that doesn't... That's not part of your four hours, that tells you something too.

20:16 Matt: Yeah.

20:16 Lisa: It tells you that in the past during that one hour you got out, if you spent 20 minutes of it in the shower doing the basics of human hygiene that was a big chunk of your hour out. So there's all kinds of problems about how delivery on the ground, the implementation of these standards. And as prison advocates, we know how power works in these settings and we know how voiceless and marginalized and compromised inmates are. So there is real difficulty in terms of how these standards get enforced.

20:56 Matt: I feel like in the prison advocacy community, this is something that's being regarded as it's a step forward, but this isn't like an epochal, "Oh my gosh, everything's wonderful now." This is just it's a measurable step forward. Some people are maybe a little less bullish on the idea that it's a step forward than others, but this isn't like a seismic shift in how prisons are going to treat people.

21:16 Lisa: So listen, I do think it's a step forward. And when we think about the battles we were having with Corrections just a few years ago, it's a huge... It's a hugely different place to be. A few years ago, they said, "We don't have solitary." In the wake of the Ashley Smith inquest recommendations, they said, "There's not a single thing we could reform. It would be too dangerous." And now we've got the... At the highest level of government, the Minister saying, "We're ending solitary." So no doubt we have to be careful about just the plotting and buying the story, the details and the spin and so on. But it's a significant... It's a significantly different climate, but we also have to... We also, as we're criticizing this bill avoid fantasizing about perfect prison legislation.

22:04 Lisa: Prisons are dysfunctional institutions. That's simply how they... That's their identity. They're closed, they're secretive, there's very little accountability, the populations inside of them are vulnerable, the jobs of correctional officers are very difficult, society never wants to allocate really enough resources to these institutions. So they are by their nature dysfunctional and in need of reform but there will be no perfect prison legislation, there will be no moment at which we can read a new bill and say, "Oh well, now I don't need to worry about what happens inside maximum security facilities." That day is never coming. And so to... This is a step forward. But no, the day when I get a bill and say, "This is perfect, I'm gonna stop doing prison reform work and go to some other area that actually needs help," that day is not coming. But that's just part of the field.

23:04 Matt: Is there anything else kind of in here that you wanna unpack, or...

23:08 Lisa: Yeah, there's a few other things in here that are not about segregation. One reform that I think is really important is, there are new rules here that specify that when the Correctional Service's dealing with indigenous people who are incarcerated, that they have to think about the historic and systemic discrimination that indigenous people have faced in Canada and in the criminal justice system and they have to think about the really distressing levels of over-incarceration of indigenous people, and they have to think about issues of culture and identity when they're making decisions for indigenous inmates. And so, that had kind of been the policy for the last few years, but this is legislative codification of those approaches, and I think that's significant.

24:01 Lisa: In sentencing, at the sentencing moment, we've been doing this for many years following legislative reforms in 1996, and the Supreme Court of Canada's decision in Gladue which said you have to take those same approaches and the same sort of analytic approaches in sentencing an indigenous person. So this is really extending that approach from sentencing and telling corrections, "You too have to think about these issues." And I always emphasize that in 1999, the Supreme Court of Canada in Gladue said that it was a crisis, the level of over-representation of indigenous people in our prison system. At that time, the rate was 12%. Despite being something like 3% or 4% of the Canadian population, they were 12% of the prison population. Well, today, over a quarter of our prison population is indigenous and some women's prisons that rate is 40%. In some provincial jails and the prairies you're getting to 80-90% of the population being indigenous. So if it was a crisis in 1999 you wonder what word would be appropriate today.

25:09 Lisa: And so sentencing in prison law is no place to try and fix the problems that produce that rate of incarceration. And so I always say we shouldn't expect sentencing in prison law to be able to... That's the end stage. That's the end. We have to invest in education and healthcare and all the things that bring down crime rates and help address the reasons that bring people before criminal courts. But at the very least, we now see with this legislation clear direction to the Prison Service, that they too have to be part of this project of trying to address the needs of indigenous people in the system.

25:53 Lisa: So, one final thought on a significant reform in this bill is that it also eliminates the possibility of putting in an inmate in solitary as punishment for a disciplinary offence. And when you're facing disciplinary charges as an inmate, so you're accused of violating a specific prison rule, you had a right to go to court to appear in front of an independent decision maker and you had a presumption of innocence so it had to be proven beyond a reasonable doubt that you committed that offence and then if you were placed in segregation it was capped to a limit of 30 days. So that was a pretty procedurally fair system and you had access to counsel when you went in front of disciplinary court. And in fact, the Queen's Prison Law Clinic does a great deal of work, where our law students go in and assist inmates who are accused of disciplinary offences and make sure that the institution really meets its burden of proving that those offences in fact occurred.

26:57 Lisa: And so, the Prison Law Clinic was really fighting against the use of disciplinary segregation. It wasn't a huge part of the practice here, most inmates in segregation had been under this administrative status because there were so few procedural rules that applied to that that mostly the Prison Service would just opt to declare you administratively segregated instead of sending you through the independent court system. But anyways, this legislation does eliminate the ability to impose segregation as a punishment for when you're found guilty of one of those offences. So the Queen's Prison Law Clinic will keep working for inmates if this bill pass, passes, and keep making sure that they don't get disciplinary charges on their records if it's not... If there's no basis for those charges, and help them avoid fines, and so on. But if this bill passes the ability to put our clients in disciplinary segregation following conviction will be... Will be eliminated.

27:56 Matt: That's fantastic.

27:57 Lisa: Yeah.

27:58 Matt: Thank you very much Lisa.

28:00 Lisa: Thank you.

Thanks to Lisa Kerr. If you're interested in criminal law, you'll be introduced to the basics in the criminal law module of Law 201/701, Introduction to Canadian Law, at takelaw.ca

Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law! You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.ca.

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What protects the things your brain comes up with? Morgan Jarvis breaks down the idea of intellectual property into its three core components: copyright, trademark, and patent. We catch up on B. Rich vs. Coca-Cola, explore the notion of the (unfair term?) patent troll, and break down how the law protects the things we think up.This is all in preparation for Morgan's new course, Law 206/706, Intellectual Property Law -- an essential program for anyone interested in creative work, business development, coding, entrepreneurship, and more. Brought to you as always by the Queen's Certificate in Law, the only online legal certificate program in Canada taught by a law faculty, at takelaw.ca.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

00:05 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd and I'm fascinated and confused by intellectual property. Thankfully, Morgan Jarvis is here to unpack it a little both in this podcast and through his new course, Law 206706 Intellectual Property Law. Morgan was on our very first episode talking about trademarks and a conflict between rapper B. Rich and Coca-Cola over a purloined lyric. We'll catch up on that in a bit and then get into IP, how it breaks into categories and what those categories mean. This podcast is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

00:56 MS: What's happening with the B. Rich case?

00:58 Morgan Jarvis: Well, I was dying to know, 'cause it's a year now since we talked about "out for a sip" and that "out for a rip" case with Coke. So, I emailed Rob Kittredge, the Queen's grad who was the lawyer who featured in that video, I think as was it buddy buddy and Steve or whatever it was, and wondered if there had been a resolution, because you can't tell online, you can still watch the "out for a sip" video, looks like there's still this outstanding cease and desist letter which would have now been past the date of when he has to hear from Coke. So I wondered what happened, and he did kindly call me back. Great guy, great creative legal solution finder, as you can imagine, from watching that video and he said, "Look, I've got this scripted response that I haven't actually even read to anybody yet because it's so dull and scripted, but all I can say is that we came to a mutually agreeable solution to the problem and that's all." And then I thought, wow, this is such a great example of why lawyers need to start thinking beyond just the traditional way that lawyers think about their little legal box of legal issues and legal problems and mostly liability and their own liability.

02:26 MJ: They're often part of a business team, and you need to think about the bigger business issues at play and this was such a classic case of a PR problem and a branding problem, and then the creative solution would have been to go out and this is actually... Rob mentioned he'd thought of this, and I think he maybe even proposed it to Coke. Why don't we get together and do a bit of a co-branding thing? We do another video and make this a great PR story for everybody and a real win-win and something fun. Not just a classic situation of lawyer comes to table with an NDA, which is obviously the case, negotiating hard, try to get the most out of the other party and then you can't talk about it. And this video still out there playing is a negative PR thing for them. So it was kind of crazy. And I think I'm gonna get Rob to come in and talk in the Business Law Clinic this year and talk to our students about creative legal problem solving. So that's something that we're trying to get students thinking about now is how do they think more like business people in it? And the Business Law Clinic is of course the right place for that. How do you connect with your clients, understand their business and how do you cope with creative business problems as part of it? It's a business context, it's not just a context of nitpicky legal issues, there is a much bigger picture out there and you have to keep that in mind.

03:45 MS: So since you brought it up, the Business Law Clinic, you are the director of the Queen's Business Law Clinic, and that is a role that is not unconnected in a lot of significant ways to IP and IP questions.

03:58 MJ: Yeah, exactly right. There's a lot of... Especially where we're dealing with a lot of startups coming out of the university and so a lot of them do have IP issues of difference or sometimes they're trying to commercialize perhaps a patent. There's always trademarks, the branding for your business as you go forward, there's a bit of debate about whether it's the first thing you think about or not, but I do encourage people to think about it early on because you wanna make sure there's a domain name out there, you don't wanna be paying $10,000 for getting your domain name 'cause you've gone and chosen a brand name, which someone's already sitting on, whether they're actually using it or not.

04:39 MS: So to take you a quick step back, what you do, what the clinic does...

04:41 MJ: Yes, right. So...

04:42 MS: As a pro bono clinic, for the law school, is you are helping businesses with a lot of different legal matters that have to do with setting themselves up, usually in their infancy?

04:50 MJ: Yeah, yeah, exactly right. So most people wanna consider what sort of business vehicle they're going forward with, are they happy... If they're one person, are they happy going forward with a sole proprietorship, does that make sense for tax purposes? We try to get them to talk to an accountant for that, but also for liability purposes, is there some liability involved? Often when you're contracting with other people and you've got employees, and maybe you're doing a service for others and there's a risk you might hurt someone while you're doing it or damage someone's property. It's often for liability reasons a good reason to incorporate.

05:24 MJ: Or maybe there's a couple of people working together and they're a partnership. That's actually automatically at law, you're implied to be a partnership, if you're doing business with someone else. So sometimes you wanna do a partnership agreement that sets out your own terms or you maybe wanna incorporate and you could both be shareholders in the company, and then in all those contracts that we end up doing for them, when they start interacting with other businesses and other people there is often IP issues, 'cause you're often developing something for someone else which has IP. And then who owns it? A great example is, here we are in a podcast. If you are providing podcast recording or hosting services for people, you would need a contract, 'cause you would just want to set out the understanding between the parties.

06:14 MJ: You want that in writing. You both wanna know that you're on the same page. There's money usually involved and people need to know what they're getting for that money. And so... And the IP comes in, say, if you are recording a podcast for someone, they're likely coming in with some IP, some copyrighted material, probably, or you're helping them create some copyrighted material and they're gonna wanna make sure that they retain ownership of what they're bringing to the table and they also wanna own the combined work product. 'Cause they're paying you to develop IP with them and they usually wanna be able to own that.

06:52 MJ: And then, if you're gonna go and host it for them, you then need that IP licensed for your use for the hosting or whatever else you're doing for them with that IP. So that's just one example, and it comes up all the time in the clinic and the clinic provides some great real world examples for the IP course, which both in the exam questions, 'cause we need those real practical problems for the students to work through, and clinic cases are great for that. But also, of course, in the course material is just great practical examples to connect that theoretical material into the real world and often in situations that are arising right here on campus.

07:36 MS: Well, I'm excited about the course, and really looking forward to it. But, after I signed up for it, I began thinking more. Maybe I should have done this before I signed up for it, but I began thinking more about IP, and one, I realized I'm not entirely sure what it actually is. And second, it kind of seems to be everywhere, all the time. Like, it's hard for me to distinguish between what's in front of me, in terms of what I create as content that's all my intellectual property. But there's a much broader interpretation in what you've been discussing in terms of people are bringing content to the table, and that's their IP. And my conventional pre-having really thought about that idea of it, which was kind of confined to trademarks and copyrights. So, in the broadest sense of it, what is intellectual property?

08:34 MJ: The name intellectual property kind of says it all 'cause it is... It's a type of property, it's property rights. Property is a bundle of rights, but it's not tangible, it's intellectual. So, it's actually created for the most part, it's created by statute, where the different acts, for those who don't understand the process of creating law, and we touch on this at the beginning of the course, but basically, the courts over time create and apply the common law and then the government steps in and legislates law. So copyright and patent and trademark each have an act, or a piece of legislation, and those set out the bundle of rights that a IP owner has.

09:19 MJ: And so, the idea behind is... It goes back, way back, in England, which is the base of our legal system, particularly the common law legal system. And there was things like merchants marking their goods and trademarks developed from that. And there's a lot of work that goes into developing your brand and there was a right that became recognized to be the only one who can benefit from the fruit of the seeds you sow in building your own brand and reputation and that's the value around a trademark. So now we have a Trademarks Act, which lays out those exclusive rights to the use of a trademark when you've built a brand around it, when you've registered the trademark. And trademarks is an example of one where you actually have common law rights still, you can build your rights in the mark and sue people at, just in the courts, without registering it for infringement or for passing off. But you can also register and come under the Act and it's then trademark infringement.

10:30 MJ: And then, there's patents, of course. And so, it's that idea of rewarding inventors for creating something new that contributes to society. And part of the filing of a patent is you're actually sharing it with the public. You file the patent with the government, it's posted publicly, so anybody can build on your invention and it's in... For 20 years, you have the exclusive right to actually commercially use that invention, but other people are able to sort of build on that knowledge base.

11:01 MJ: And then, copyright, it's rewarding creators for bringing something new and creative into the world. So typically, paintings and pieces of literature and now movies and podcasts and all that, they're... Most of those are considered literary works, but there's also neighboring rights and some others that we'll talk about in the course, like the rights of performers and broadcasters. So yeah, no, they really are all around you, all the time. And I suppose, it's part of this intellectual nature of the rights, it's they're... They are all around us.

11:43 MS: And you've been... I think you've been doing a great job of kind of describing the ideal purpose of intellectual property. It's to make sure that people can benefit from the trademarks that they fought to establish a quality and then they want the right to associate that and only that, to them. And patents is, you came up with the idea and you own it, and you deserve to benefit from that. And copyright is you created it, it's yours, it should be yours. It's your song, it's your novel. But there's also kind of a flip side to this, like we were discussing before we started recording, that people can create a trademark and then just kinda hang on to it for no apparent benefit to anyone for decades, past its sell-by date.

12:23 MJ: Yeah, that is at the very foundation of the IP rights is that balancing of the public interest and their right to either create and develop new things, or to be able to use things that have been created and really for everybody to benefit and enjoy, either the creative work or to build on the new technology and the inventions, and so that's that balance of the term. 20 years is kinda what we've come to for patents, but the pharmaceutical companies are always wanting to get that longer because on their side of it, they're spending probably often 10, 15 years through, and huge amounts of money going through clinical trials and by the time they actually get a drug to market, they maybe only have 10 or five years at worse case, to actually make some money back out of it. And that's why the pharma, the drug prices are so high 'cause they have a very limited amount of time on that patent monopoly. So it is that... Yeah, it's always that that balance, exactly, right.

13:26 MS: And we live in the age of the patent troll too. This is a term I see a lot online. Not entirely sure what it means but...

13:33 MJ: Yeah, and it's a term that... I was chatting with... I don't know if I'd... I don't know if he'd appreciate being called a patent troll, but he has one of the organizations that some people can call a patent troll. But it's not the greatest term because it is really just another business model. And there are some interesting Canadian companies who would argue that what they're really doing is helping people who own IP and aren't able to commercialize it. They're helping them actually make some money out of their IP rather than it just sitting on a shelf and not getting out there and not earning any royalty revenue. They go and look for... I'm not sure exactly how the business model works but I think essentially they kind of... They would either... They probably license the IP, or they somehow have an arrangement with someone who owns IP, who isn't working it, to go out and look for infringers.

14:29 MJ: And then the business model is that you sue, and ideally come to a settlement where you'll get some royalties out of people who are infringing IP that's usually just sitting on the shelf. So in some ways, it's a... It's actually quite a reasonable thing to do. You've got this property right and you're just helping people exercise it. And often, it's universities who might be sitting on it. We generate all kinds of IP and we can't commercialize everything. We'd love to, we want everything to be out there contributing to the economy and to society. But often it isn't, it takes a lot to actually... It's often, I wouldn't say the easy part, but it's only one part is to generate the IP, it's on a whole another level to actually be able to build a business around it or incorporate it into a business and make money out of it. So these so-called patent trolls, and a better term is a non-practicing entity, so they can... Yeah, they're just helping, in this particular model I'm describing, they're helping people make money out of IP that's not being used otherwise.

15:37 MS: Maybe we should... Patent mercenary, is that maybe a better...

15:39 MJ: It could be, yeah, yeah. So this and... And the other side of it too, there is now groups that have got together to try and pool IP because you have... The other issue is the issue of patent thickets where you've got so many of the patents, so many out there with overlapping claims and there can be someone who actually, they may have a patent on some part of the technology but they need... There's usually a whole bunch of other patents that are also now actually stopping them from taking their technology forward, because there's claims that cover what they're doing as well as the claims in their own patent. So what people have started doing is pooling. So either by license or buying a whole bunch of patents together in particular areas of technology to try and make the whole bundle of rights available for people who are wanting to get out there and make a product that requires licensing, of, say, a thousand different patents and they'll have them all in one place.

16:36 MJ: You can go to these patent pools and just pay one licensing fee, one chunk of royalties and they find their way back to the owners, but you just have to... It actually enables commercialization because you just have to deal with this one party and you get licensing to all the patents that you need to be able to move forward with your business, which is a really positive thing.

16:58 MS: I feel like I could kinda throw a rock and we could find something we could talk about for an hour here.

[chuckle]

17:04 MS: So how are you... This is huge. How are you condensing this down into one course and what's the composition of this to try to encapsulate all of these ideas around IP into a fairly tight schedule?

17:18 MJ: Yeah, that's... So, everybody... We've interviewed the real experts in each area of IP that we've touched on. And most of them have said, "Oh, wow, this is a whole IP course." So you're having to condense all of IP, 'cause normally people specialize in either patents or trademarks or copyright. And they don't normally attempt to do a course in all of them. So it's been a lot of fun for me 'cause I do enjoy all of them. And I wouldn't say that I'm particularly a specialist in any of them, so it's been a lot of fun. And what I've tried to do, 'cause I come at it more from a practical angle, which I think is important for a course like this. And so I've tried to think always what matters in a practical setting of, say, a university startup, or in university research commercialization.

18:11 MJ: I was working at a research hospital before and so I'm fairly aware of what really matters in terms of IP in a practical, commercial context. And so I've tried to come at it from that angle and just sort of, and cover key points that I'd be considered negligent if I didn't cover in doing an IP course. Cover all the key issues from all the different areas of... Or mostly areas of IP, the main areas of IP that are relevant to a business is really what I've asked myself in putting together the course. And then we build towards the licensing at the end of the course, and that's that commercialization of IP. And that's... You've got your theory now and then you're learning why does it matter. And that's really how I've tried to put it all together 'cause, yeah, it is a lot to put in one course, but we're trying to do it with a practical perspective, which helps to simplify a little.

19:07 MS: I'm hardpressed to think of people that this doesn't apply to, though.

19:10 MJ: Yeah, you're absolutely right. I mean, an academic in the university who's doing research probably needs to understand what the IP implication is, no matter what they're doing, even if it's a nontechnical area, there's still copyright all the time. And that's actually a fun example, 'cause there's a lot of people publishing papers, and now there's more going on with the creative commons and that open sharing of copyright. But it was that, that if you wanted to publish a paper in a leading journal you would just assign away your copyright and not even think about it. Not even realize that you can't go and reproduce your own work that you've now assigned to that journal. So, yeah, it comes up, it comes up all the time, and starting a business, you're certainly dealing with IP in some regard, even just as a student, an undergrad student, you're surrounded by copyright issues all the time with whether you can copy your course materials, and you may be tempted to go and go and download my exam questions and my fantastic videos from the course and you can't do that 'cause I own the copyright. [laughter]

20:23 MS: Right.

20:26 MJ: You can't sell it online after the course 'cause that's my exclusive right. [chuckle]

20:30 MS: I mean, again, it's like throw a rock. [chuckle] Like just from what you're talking, like creatives, anyone who's writing making music, anybody, that's obviously of interest. Anyone who's coding making their own apps, making their own software, obviously of interest and then you get into all these weird side nichey things. Like if I write fan-fiction, if I'm writing my own stories based on licensed copy, where does that reside? And there's all sorts of side paths and interesting areas you can get into from the central point of what is IP.

21:00 MJ: Yeah, and it is especially complicated when you're getting into that overlapping rights and in copyright you've got different levels of works and authors on top of each other and when you watch a movie and you see those... That endless list of credits at the end. You've got copyright in the script, in the story and then the directors and the music and then music itself, you've got lyrics and then the music, and then the performers' rights and the broadcasters'... The record makers' rights. Yeah, and then as I mentioned, in patents, the patent thickets are a huge problem. We've got all these overlapping rights, and they stop people from being able to make the most of the IP. So it's an ongoing issue and it's yeah, it's a very interesting problem to think about and hopefully students can come away from the course, not only understanding IP, but maybe thinking about it critically, and are there better ways to go at the same intentions of the IP system? Could we actually solve the problem better than what we're now doing?

22:13 MS: 'Cause I mean, moving it back to the beginning you've gotta find creative solutions. And this seems like a field in which most of the problems that arise are gonna be creative problems, ones that root back to someone having created something. So if you're not finding creative solutions to your creative problems, what are you solving?

22:30 MJ: That's right, and you don't want to, in rewarding creativity, you certainly don't want to end up having the effect of actually stifling it, which some people would argue is what the IP system does sometimes.

22:40 MS: Well, I'm looking forward to the course. Thanks so much, Morgan.

22:42 MJ: Great, thank you.

22:48 MS: Thanks to Morgan Jarvis, the developer and instructor of Law 206706 Intellectual Property Law. You can find out all about trademarks, copyright and patents through his course at takelaw.ca. If you're a creative, a coder, an entrepreneur, an inventor or any combination of the above, you owe it to yourself to understand IP law.

23:12 MS: Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valérie Desrochers. You can see them at takelaw.ca and visit Valérie's portfolio at vdesrochers.com. Thanks for listening.

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Following last week's release of the Trans Mountain Pipeline decision by the Federal Court of Appeal, we sit down with Hugo Choquette, developer and instructor of our Aboriginal Law course, and Cherie Metcalf, the creator of our Constitutional Law module for Law 201/701. We talk about the decision itself -- it's lengthy! -- and unpack not only the duty to consult, but some other parts that haven't made the headlines as strongly, as well as discussing where the federal government can go from here.

Brought to you as always by the Queen's Certificate in Law, the only online legal certificate program in Canada taught by a law faculty, at takelaw.ca.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

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00:04 Speaker 1: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd, and I've seen a lot of headlines about the Trans Mountain Pipeline being affected by a court of appeal decision and the duty to consult. This is something we covered with Professor Hugo Choquette in an earlier episode in the podcast, but now that this decision's been released, we're sitting down with both Hugo, the developer and instructor of our aboriginal law course, and Cherie Metcalf, the developer and instructor of our constitutional law module in Law 201/701: Introduction to Canadian law. Cherie and Hugo talk about the decision itself, it's huge, and the duty to consult, which has been taking up the headlines, but there are other aspects of the decision too, and we take some time to unpack what the federal government's next move might be. This podcast is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:03 S1: So I think a good place to start is the length of the decision. So that the caveat is, it's the beginning of the school year, everyone's teaching.

[laughter]

01:13 S1: Classes are starting. We're all busy. And this is a huge slab of decision, right?

01:20 Speaker 2: Certainly is, yeah.

01:22 Speaker 3: Yes, it's definitely a extremely long, thorough, and complex review. It's a lot to process.

01:30 S2: So... I'm a very complex processor too, which is, it needs to be said as well, so...

01:34 S1: So what factors kind of govern length? What would go... What makes this a particularly complex review?

01:40 S3: One of the things I think that makes it complex is that it involves consolidating a number of different challenges to the decisions from different parties. So there were cities involved, so Vancouver and Burnaby. There were a number of different First Nations involved, who had territory affected in different parts of the project area. There was an NGO involved. So that already, sort of having multiple different kinds of challenges, is gonna increase the complexity.

02:11 S2: Yeah, and there was... The case was also sort of a two-part case, where there was a challenge to, or an attempt to get a judicial review of the board's report, the National Energy Board's initial report. Also, a challenge to the decision itself by Cabinet to approve the pipeline. And then, as Cherie mentioned, there was a number of challenges on the basis of a failure of the duty to consult, which were brought by several different First Nations and organizations. So there is that whole complexity to it. And so, obviously, there's also a lot of factors to consider. It's a very technical thing to build a pipeline. There's a lot of moving parts, there's a lot of pieces to the puzzle, if you will. So I think just that fact alone and then the length of the process and the complexity of it makes it for a complex decision.

03:04 S1: I suppose we should actually backtrack to the decision itself, 'cause, I mean, I am someone...

03:06 S3: Right.

03:08 S1: I've just seen headlines. And the headlines are basically failure of duty to consult and this derails everything.

[chuckle]

03:15 S1: It's kind of the Coles Notes of what I've seen in headlines and on television, and so on. Is that a fair summary of what the decision was?

03:23 S2: Well, I'll say in the duty to consult part, it certainly was... It's a meaningful decision. It's a strong decision in favor of the indigenous groups' right to be consulted meaningfully. Whether that decision has wings is yet to be seen because we don't know, right, what the end of the story is yet, quite yet. But it certainly is a significant decision. I'm not sure that it warranted the level of dismay and sort of hindering that it created among proponents of the pipeline.

04:02 S1: Why?

04:02 S2: Well, because I think there's a path that the government can take to... That the federal government can take to remedy its lack of consultation. And I think if you actually look at past court decisions, while this is a meaningful sort of validation of the right to meaningful consultation, the court is also very clear that that is not the same as having a right to veto or even a right to have full agreement, right? So it's still not... This is still not Free, Prior and Informed Consent as a standard. So I don't think it's that... It's fatal, although it certainly is a major decision and it is a block to the pipeline happening now, obviously.

04:43 S3: Yeah, I think I agree with what Hugo is saying. The only thing that I think is important to recognize is that while there were flaws identified in the consultation process by the reviewing court here, they actually said that some of the things that were done were actually done properly, and were improvements on prior processes of consultation that had been found wanting. So, in general, they thought that there were things done properly, like early notification and engagement. And so it was really sort of at a later stage of consultation, where Cabinet was supposed to be sort of considering additional information and impacts, and then having meaningful dialogue about that with the indigenous groups who were involved, that they fell down on the job, in terms of their consultation obligations.

05:40 S2: Right. Yeah, I think that was one of the sources of frustration for the federal government, was that, this was actually probably the best, one of the best processes that they have used so far. If you look at some of the past decisions like the Clyde River decision, or even the [inaudible] and other federal court appeal decision, the process used there was not at all as developed and as robust as the process they used here. And over the whole course of this very long, complex process, it's really only the final phase of the negotiation that the court found wasn't adequate. The rest was actually quite well done, so...

06:18 S1: So this isn't... As you were saying before, this isn't actually catastrophic. There is a failure of a duty consult. And the way to remedy that, I guess, is consult. Is that sort of the way forward?

06:29 S2: Yeah, I think the court has sort of said what it thinks needs to happen, which is that there needs to be meaningful dialogue, as Cherie said, rather than... The three main objections the court had to what the federal government did in that final phase of negotiations, was that, number one, the Crown representatives basically acted as note-takers, so they basically just sat there, recording what the concerns were. They had no authority or power or seemingly any desire to address those concerns, to do anything to meet those concerns. The second thing is that... And this goes back to a discussion we had about the delegation of the duty to consult. The past decisions [inaudible], for example, said that it was perfectly fine for the Crown to rely on a regulatory process to fulfil the duty.

07:17 S2: If it does so, it has to ensure that that process is... Provides meaningful opportunities to engage and accommodate the interests of the indigenous groups. And here, what happened was, the federal government kind of... During the regulatory process or during the National Energy Board hearings, kept saying, "Well, this is sort of a preliminary hearing. We are going to consult some more. Don't worry, indigenous groups are going to consult some more after this process is over." Then once the process was over, they sort of adopted the stance that they couldn't impose extra conditions on the constructor on Trans Mountain, and that they weren't really at liberty to change or vary anything in the report. So it's sort of they can't have it both ways. Either the report is the deal, which the court sort of said, well, the report here is really just a recommendation to the cabinet, and cabinet is the ultimate decision-maker, but either you ensure that the process in the National Energy Board takes... Is capable of accommodating the interests of indigenous groups, or you provide another meaningful phase of negotiations after the fact. And so, you can't, on one hand, say, "Well, this is just a recommendation process." And, on the other hand, say, "Well, after it's done, we can't change it."

08:33 S1: Who gets to decide what meaningful means?

08:35 S3: I mean, hopefully, I think what the duty to consult is aiming for is that both parties to the negotiation will feel that they've reached a solution that they can sort of both agree to, right?

08:50 S1: Right.

08:51 S3: And then, in some sense, if you get there, then you've satisfied the objective of the duty of consultation, in a way, right? But if there's disagreement, then, really, it's the courts that are gonna review it, to see whether or not the process meets the standard, that essentially, it has to meet the duties of the honor of the Crown, so...

09:16 S1: And so this, this happened at the court of appeal. It might be helpful just in... Especially since you're the author of the constitutional law module 201, Cherie. Where does that sit in kind of the hierarchy of courts of Canada?

09:30 S3: I mean, appeal court sit over top of the courts of first instance to decide the decisions initially, but over top of that is the Supreme Court of Canada.

09:43 S1: Right.

09:43 S3: So, you know, one of the possibilities that's obviously sort of being talked about is whether or not the federal government might decide to appeal the decision and ask the Supreme Court of Canada to review it, which they don't have to do. So the supreme court will have to decide whether the case raises an issue of national significance that it wants to hear, that it thinks it needs to address to resolve the issues.

10:09 S1: That's actually what I was gonna ask, is the federal court doesn't... Or the federal government doesn't just get to do that, that the supreme court has the autonomy to decide which cases it's going to hear. So the federal government could say, "We'd like you to hear this, supreme court." And supreme court might say, "Sure." It might say, "Nah."

10:25 S3: Yeah, it's true. They could say, "No, we're not going to review it."

10:31 S1: Right. But I think the other important thing here is, what the court of appeal comes back with isn't like a, "Stop everything." As you've said, it's not a tear it all up, burn it all down. It's, this is what you have to do to remedy the situation, and then move forward.

10:48 S2: And it remains procedural, and it needs respect. So the court of appeal can't say anything about what level of accommodation is required in order to meet the concerns of the indigenous groups. All it can say is, "Look, this process that you've created was flawed and didn't provide an opportunity for meaningful dialogue." So, in other words, from the outset, we can tell from this process that there wasn't any possibility of real accommodation. But once you create a process or you put in place a process that allows for that, then it's really not up to the court to decide, "Well, this is meaningful accommodation or not." There's no real ability for the court to judge that. And again, the courts have been very clear that they're not going to make... That this isn't a veto on either side, right? Part of the problem here, though, is that you have entrenched interest on both sides that have come out on the record, saying that they would... So the federal government's basically have, "This pipeline will be built." And some of the First Nations that are opposing it have said, "This pipeline will never be built." So it's hard to find the common ground there, for me, for good faith negotiation, if you will, when both sides are on the record, as saying there's only one real outcome that we're going to be satisfied with.

12:05 S1: Right? And this came up, I think, in the past, we were talking about BC and their right to impose environmental standards in the province versus the federal government's right to say the pipeline will be built. To a point, you have to sort of assume good faith, that nobody's kind of just inventing pretext to keep things from happening, but everyone's actually invested in a functioning process. I mean, this seems like that's happening, I guess. From my remove, it seems like all parties involved are sincerely working towards something.

12:40 S3: I think it was... Yeah, I mean, I think, certainly, like I say, it was a very complex and involved process. And a lot of what the court does in its review is to review a whole series of possible deficiencies or challenges to the process and it dismisses quite a number of them, right? So there are... Although it does identify these, what turned out to be fatal flaws for the approval at this point, on balance, there was a lot of stuff that was done well, at least according to the court. So it's really how dramatic it is, that depends a little bit on what happens, moving forward, how entrenched are the parties, is the government able to go back and sort of ask the NEB to revisit some of this? What does that process look like?

13:33 S3: From the original perspective, one of the parties, of course, was the Trans Mountain pipeline, which was... It's a commercial enterprise. Some of the response here is about how complex, how lengthy, and how uncertain these processes are from the perspective of private companies, right, and their investors. So, at some point, it can... Even though you could, theoretically, get to an agreed outcome, the uncertainty and timeliness and all those aspects of the process can essentially be too risky for private companies, and in some ways, that it helps to explain why the federal government in this case has not just said they're behind it in terms of regulatory jurisdiction, but they've gone as far as actually purchasing the pipeline.

14:32 S1: Right, which has been kind of another thing in the headlines is...

14:35 S3: Yeah.

14:35 S1: Just sort of a oh boy. [chuckle] Wow, they really... Pig in a poke is the expression I've heard. They really sort of purchased something without really considering the ramifications of the purchase.

14:48 S2: From the consultation perspective, it actually makes things easier, because one of the problems that the court identified was, again, this reluctance by the federal government to impose conditions in addition to what was in the NEB report on a private company. As Cherie mentioned, there's a lot of valid reasons for that if you have investors who were being told your investment's secured because we're going through this regulatory process, they may not be very happy when you end up imposing other conditions after they've gone through this lengthy, complex process. In a way, that problem gets removed now that the federal government is the owner, because obviously, the federal government can just tell itself to do whatever it wants, or at least you would think it could. And so, basically, at this point, it's a matter of where those concerns are identified. Of course, you can impose other conditions. You're the one doing it, so you can make yourself do all the things that you think will be necessary to accommodate.

15:43 S2: And again, I think, looking at past experience that, if the process is sound, I don't think... I think [15:47] ____ very reluctant to interfere with the outcome, with... With the substantive outcome of that consultation process and accommodation process, unless it's obvious that they haven't taken it seriously, but certainly, the process has to be... Sort of demonstrably able to show that it's meaningful and that it's a two-way conversation.

16:10 S1: So we've talked about duty to consult fairly substantially. Again, it's a big decision. Is there other... Are there other subjects being handled in... Knowing that we haven't had time to read the entire thing and really unpack it, it only came out a couple of days ago, it is huge, and it's the beginning of the school year, but are there other things in there that kind of need to be unpacked a little in terms of where the decision's coming from?

16:35 S2: One of the things that I think sort of got missed because the main focus has been on the duty to consult is that the court also found that by not considering the Species at Risk Act... Well, let me back up a little bit. The court or... Sorry, the National Energy Board decided that the impact on the marine environment, once the tankers had left the terminal, wasn't really part of its purview. And part of the problem is you have these... I think they're called Southern Resident Killer Whales that are species at risk in the Strait of Georgia and Salish Sea. And so there's now another court challenge, actually, that's just been launched by environmental groups, saying that the government hasn't been acting according to the Species at Risk Act by not designating them as endangered and not as a threatened species.

17:18 S2: I apologize, environmental law isn't really my area, but I think that suggest... The lawsuit. And so this is gonna complicate matters as well, because one of the things the court found, in addition to the lack of duty to consult, is that that stuff should have been taken into consideration by the National Energy Board.

17:33 S1: Even though it's kind of a post-pipeline thing that happens with the ships.

17:36 S2: Yeah.

17:36 S3: Yeah. So it's this kind of complicated reading of the requirements under the NEB's own act, which triggers a need to look at the Environmental Protection Act. And then there's standards in that act, that kind of fit back into the standards that the board should be applying. So, it's looking for... The standard, I think, is it has to be sort of in the public interest.

18:03 S2: Interest. I mean, yeah.

18:05 S3: It's its own sort of legislative criteria, and then part of that is to look at the environmental assessment. And so it's one of the sort of complicated tiered things, where the board thought that its jurisdiction was more limited than it was, in terms of considering the sort of follow through effects, in terms of environmental impacts and things that it essentially didn't have jurisdiction to regulate over itself. And so the court here seems to be saying, "Well, even if you can't regulate over it, you should still be talking about the impacts and whether there are any mitigation measures that could be taken within your own project to address those environmental effects. And so that's part of what was going on with the tanker traffic and... And the board's failure to make mitigation measures and to have recommendations about that part of the project.

19:05 S1: So this is captured partly in the court of appeal decision, but you're saying, Hugo, there's even a separate...

19:11 S3: Oh yeah.

19:11 S2: It's just been broad, yeah, by World Wildlife Fund and other environmental groups.

19:18 S3: But you're talking about the Species at Risk Act.

19:21 S2: Yeah.

19:21 S3: Yeah. So that's actually even a separate thing compared with this.

19:24 S2: That's right. It's sort of a triple layer of legislation here.

19:25 S3: Because there's a whole section of this federal court of appeal decision that actually really is only about this failure to address marine tanker traffic and the environmental consequences, and that, in fact, that the court found that that, in itself, made the board's report sufficiently deficient that Cabinet couldn't rely on it. And so, even without the Aboriginal consultation issues, it would have had to send the decision back because of that. So that actually... You can see there why it's such a complex decision.

20:07 S1: Pipelines are complicated.

20:09 S3: Pipelines are hard to build, they're very complicated.

20:12 S1: Wow. Is there anything else kind of in the decision that's sort of been overshadowed by not only duty to consult, but also the environmental measures?

20:21 S2: Well, I mean, this relates to duty to consult, and again, I'm sort of cautiously optimistic about the decision. I think we'll have to see if it gets appealed. I don't think they've been quite clear on whether they're going to do that yet, and what the outcome is gonna be, but I think, taking a step back from the pipeline issue, I do think this is a victory for First Nations in terms of at least the procedural aspects of the duty to consult, and I think, for all First Nations, whether for or against the pipeline, because I think that's also important to notice, that there are many First Nations who are in favor of the pipeline, and actually want to own it. But no matter what side of the issue you're on, I think, ultimately, this is a good decision for First Nations, in that it provides a good standard for meaningful duty to consult, again, at this point, and how it develops, it's hard to know.

21:07 S1: But we're in a precedent-based system and the federal court of appeal is the only...

21:13 S3: It's a high-level court, especially for federal bodies and federal decision-makers, where it's...

21:18 S1: So this radiates in a very significant way.

21:21 S2: Yeah, it does. And I think the media attention has... Echo has shown that as well, but of course, it wouldn't be the first time the supreme court disagreed with the federal court of appeal. Either... If it did get appeal, it could be that this might all get reversed if that happens, I'm not sure. We'll just have to see. This is an ongoing sort of situation.

21:42 S1: Thank you both very much.

21:44 S3: Thanks.

21:44 S2: Thank you.

21:46 S1: Thanks to Hugo Choquette, the developer and instructor of our aboriginal law course, and Cherie Metcalf, the developer and instructor of our constitutional law module in Law 201/701: Introduction to Canadian Law. If you're interested in aboriginal law, the history of indigenous rights in Canada, and how things like the resource industry are directly linked to them, you should look into Law 202/702: Aboriginal Law, at takelaw.ca. And for a 10,000 foot view of the Canadian Constitution in our court system, Law 201/701: Introduction to Canadian Law is a great place to start. We also offer Law 205/705: Public and Constitutional Law, which is a full-focus deep-dive into the bedrock of Canadian law. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valerie Desrochers. You can see them at takelaw.ca, and visit Valerie's portfolio at vdesrochers.com.

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Nobody reads those "end user license agreements" that pop up on your phone or computer, right? We've all seen probably thousands of these things. We all just click "Agree". Who has the time?

So if nobody reads them, do they matter? And if you do read them, what should you know?

Peter Kissick, the course designer for Law 204/704, Corporate Law, dropped by to answer those questions and more. He knows contracts, and we get into the details of all the documents nobody actually reads.

Brought to you as always by the Queen's Certificate in Law, the only online legal certificate program in Canada taught by a law faculty, at takelaw.ca.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

Transcript:

00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd, and I've never read one of those end-user license agreements. Who has? We've all seen probably thousands of these things, we all just click agree. Who's got the time? So if nobody reads them, do they matter? And if you do read them, what should you know? Peter Kissick, the course designer for Law 204/704: Corporate Law, dropped by to answer these questions and more. He knows contracts, and we get into the details of all the documents nobody actually reads. This podcast is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

00:53 MS: I have probably read thousands or seen, never read. I've probably seen but never read thousands of these license agreements in my time. I've been using computers for a long time so these little screens have been popping up, and I've been agreeing for a long time. Peter, what's going on with these? [chuckle] What are they? What am I looking at?

01:11 Peter Kissick: We refer to these things as broadly standard form contracts or contracts of adhesion because they actually pre-date computer licenses. And you can think back to a simple agreement when you park a car and there's a sign that says, "By parking your car, you agree that we, the owner of the parking lot, is not responsible for any damage to your car." That's one of the original standard form contracts or contracts of adhesion. And we see them a lot in the consumer context. For instance, your utilities bill, or if you sign up for a cell phone or something like that, there'll always be, probably pre-printed, a standard form contract like this.

01:54 PK: But I think what you're referring to is E-U-L-A or EULA, end-user license agreement, that we often see as a pop-up whenever we want to put, oh, I don't know, say, you could do iOS or something like that or put some operating system onto our computer or a new app or something to that effect. And I'm assuming that's what you're talking about, and you probably agreed to them. As you say, you started off by saying you've read a thousand of them. I'm betting that you are like 99.9% of the rest of the world and you've never actually read one or you don't read them as you go.

02:32 MS: Sometimes I've sort of scrolled through real quick and thought, "Hmm. That's interesting," but I haven't... No, I've never actually... Until the other day, for this, I actually printed out and sat down and read one. They're legal, like they have force in law.

02:44 PK: No... And in fact, I've often had, I've had students come to me and say, "Well, I click on it, it doesn't mean anything, right?" Well, to which I answered, "Well, why did you click something that said, 'I agree' or 'I accept'?" Ontario law, in fact, is not inconsistent with the law of the rest of the world that says, "Simply by clicking, 'I agree,' whether you read it or not, you are bound by those terms." So the simple click of a, a mouse click on an icon or some sort of box on your computer screen is going to be synonymous with a signature.

03:20 MS: Right.

03:20 PK: So read it or not, you're bound.

03:23 MS: And people have done some pretty hilarious things with the fact that people don't read these.

03:28 PK: Yeah. It is one of those ironies, right? People don't think they're bound but they are. Probably many users of these, the people who create these license agreements or consumer contracts probably count on the fact [chuckle] that people don't read them. But it's created sort of an interesting sort of a cottage industry of strange and somewhat bizarre and hilarious examples of what has been buried in these agreements. There's one example, PC Pitstop I think was the name of the company, that buried in its EULA a provision that said, "The first person to get back to us will receive a prize of a thousand dollars." It was buried in the midst of all the terms, and it took them five months to actually give away the thousand dollars because nobody bothered to read it.

04:27 PK: There was another company, I believe it was an antivirus software company, that on April Fool's Day changed their license agreement terms and again buried in the midst of all the verbiage was a provision that said, "By agreeing to this license you agree that we have a claim against your immortal soul." 2500 people apparently signed up for that service and signed away their soul. Fortunately, they amended their agreement on April 2nd to take that away. Yes, it's... Yes. I guess one of... And sort of a slightly different and somewhat humorous and very celebrated example of this was Van Halen's performance contract. The rock band Van Halen had a provision in their contract that said or sort of a rider to their standard production contract when they are going to have a concert. It said that the promoter shall provide certain things in their dressing room, and they included a provision that said they shall have a bowl of M&Ms in their dressing room with the brown M&Ms taken out.

05:36 PK: You'd think that's just the eccentricity and vanity of rock stars. Well, actually it had a true purpose. They said, "We wanna make sure that the promoter actually has read our standard form contract, because if they didn't see that provision, maybe they didn't read closely the provision that we need in terms of our setup requirements, stress on floors, lighting, that kind of thing, because that had happened before, where they had actually had a stage collapse on them, so they wanted to use their standard form agreement to catch promoters out.

06:09 MS: Right. So if they see brown M&Ms in the bowl, they know someone's not paying attention and it's time to check everything out.

06:14 PK: That's correct.

06:15 MS: 'Cause there's pyrotechnics involved to the Van Halen show.

06:17 PK: Absolutely. Absolutely.

06:18 MS: You wanna be really careful.

06:19 PK: So I think when that did happen, I think David Lee Roth, the singer from Van Halen wrote that when that would happen, then they would do an extra long sound check and double check everything and then they would build a promoter for that.

06:34 MS: Right. Right. So in the realm of the more serious contract, not to say that the aforementioned aren't serious, but I own an iPhone and so I know I have clicked off on dozens of these over time, so I actually printed out an iPhone end-user license agreement. I don't have the URL in front of me, but we'll post it on the blog, when this podcast goes by, it is about, I would say 20 pages long, if that. It's surprisingly readable. Like I read through it and I thought, you know, this is not... After studying the law in some of these certificate programs, one of the things I noticed about legal writing is that, generally fake legal writing seems more legal than real legal writing a lot of the time. [chuckle] When I read these things, and I read judgments, I'm like, "Oh, this is actually pretty accessible stuff," and it wasn't an easy read. It's long and it's pretty dull, but it's a readable contract. You can go through it and understand pretty much what's going on in here.

07:34 PK: Fair enough, fair enough. I think so. I think if anybody took their time, they would have a pretty good sense of what was in there. It's pretty dense. There's a lot behind all of the words, let's just say, it's not as long as we might think, although I'm sure it's longer than anyone who simply wants to get on with playing with their iPhone really wants to go through. But still it's not as long as you might think, but as I say, what's behind all of those words? There's been a fair bit of industry practice plus common law decisions and the like behind what's written in there.

08:09 MS: Right. And as you go through it, there's kind of... I've noticed there's themes. It sort of breaks down, and everything kind of... There's a lot of broad categories, and this won't be exhaustive, but the first one that leapt out at me is, there's a number of clauses in here that basically seem to say, there's stuff that you can do with this phone but we don't want you to do it and we're not responsible if you do. So this is kind of like a copyright violation, falls in the category of things that you could do with this phone but you shouldn't do them. But they don't have any... Basically, they're just sort of saying this isn't our fault. And is that to keep third-parties from kind of... If you use the iPhone to steal music, then Sony can't come after Apple and say, this is your fault, 'cause they said it's not their fault in this contract that I had to read.

08:57 PK: That's very well put. Yeah, that's exactly right. I think the standard form agreements, it's a relationship between the individual consumer or user and Apple, in this particular case, but Apple is trying to use this contract to minimize their legal exposure, not only to the consumer but to anybody else out there, including other service providers, other IP providers, intellectual property providers, and governments. So please don't do that illegal activity 'cause we really don't want to have to have any criminal exposure, let alone civil exposure. Please don't use this to steal somebody else's copyright because we don't want that person suing us indirectly or facilitating that. So it's a method of protection, absolutely.

09:50 MS: So this is like a contract between me and Apple, but there's also they're considering a lot of third parties when they do all the writing to craft this. Another broad category...

10:00 PK: Actually, before you move on, Matt, if you don't mind...

10:02 MS: No, absolutely.

10:04 PK: Odds are, Apple has considered who they're most likely to be sued by, and it's probably not you, Matt. It's probably to be Google or somebody of that level of substance, who probably have damages sufficient that it would merit a lawsuit. So, as much as they're worried about you, or they may not be worried about you, to be honest with you, they are probably more worried about these third parties.

10:32 MS: Right. So they're protecting themselves from the third parties through the mechanism of the contract.

10:38 PK: Yes. That's correct.

10:38 MS: Because I can't do things that will take those third parties off, or if I do, it's clearly not Apple that did it.

10:43 PK: That's right.

10:43 MS: It's me as an individual acting like a jury.

10:45 PK: That's right. For the record, that is not absolutely fail safe. Because Google is not a party to this contract. If you go ahead and do something that would violate their intellectual property, there is nothing to stop Google from suing Apple. Now Apple could say, "Hey, that wasn't our fault. Look at this agreement, we said it was Matt's problem." And that may or may not be successful, but nothing could stop Google from still suing Apple because they're not a party to the agreement.

11:15 MS: Okay, the next broad category is something that I'm calling, this might happen, but you can't blame us if it does.

11:23 PK: That's right, and this is now, we're worried about Matt you suing Apple. So if for some reason, you use your phone in a specific way, whether it's something that was authorized by Apple or not, maybe it's a completely legitimate use for your phone and you somehow suffer some liability. Still can't sue us. So, Apple could have done nothing wrong, you can't sue them. Apple could have done something entirely wrong in the creation of the phone, the creation of the software or installation of software on that, and you still can't sue them. You're gonna say, how was that fair? Apple has done something that's caused me injury, why can't I sue them? We're gonna say, well, if we don't have that provision in all of our agreements, what's to stop Matt from launching a lawsuit over any small thing? And since we sell millions of iPhones throughout the world, think of all those potential lawsuits. So we're simply gonna say, "Look, in order to keep the costs of this iPhone down, we're gonna say no one can sue us if anything bad happens. And if we didn't have that, and we were subject to that civil exposure, the cost of an iPhone would actually rise."

12:35 MS: But I mean, they still are to an extent, like I can only imagine if iPhones started exploding and taking people's heads off, then that clause wouldn't protect them.

12:45 PK: That's correct. There are limits on how far some of these provisions can go, these disclaimer clauses for instance or waiver of liability clauses, more precise. How far can they go? Do they actually have any bearing? And the courts will give effect to them, but they will not give effect to something that would be unconscionable. So if it goes to the very heart of what an iPhone should do, and no one should actually suffer third-degree burns by putting a phone to their ear in their ordinary course of business, it's unlikely that Apple will be able to escape liability.

13:22 MS: Okay, so something like, there's some clauses in here about distracted driving. Does that fit more into the first case or the second case of, you can do this, but please don't, or if you undergo harm while doing this, we can't be blamed for it.

13:38 PK: Yeah, I think it goes a little of both to be perfectly honest with you, but they're probably more worried about the first case than the second case. They don't want... Because you're driving along, texting or using your phone and not paying attention, and you hit some third party, Apple's probably more worried about that third party coming back against them, yeah.

13:58 MS: Okay, and data overages is another one, where if this happens, this is on you, it's not on us.

14:04 PK: That's right, that's right. And in that sort of situation, they're saying that's truly beyond our control, so we absolutely don't wanna have that. What Apple is trying to do here is, you could say that there are legal justifications behind a lot of things. A lot of these things are business justifications, they are trying to get cost certainty. So they wanna know that when they sell you that iPhone, they know what their costs were in building that iPhone and they don't want any contingencies going forward.

14:32 MS: Right.

14:33 PK: Yeah.

14:33 MS: And while law suits are definitely a contingency you can't plan for, so they're trying to hedge those bets as much as they can contractually.

14:40 PK: That's right. Right, and which is no different actually than when you think about sort of the waivers that you see or the warnings that you see on any product. A product manufacturer is worried about product's liability lawsuits. This is sort of the cell phone equivalent of that.

14:55 MS: Okay.

14:55 PK: Yeah.

14:56 MS: And the third broad category that I saw all over the place had a lot to do with data collection. So it's basically just saying, we are gonna be gathering data from you for a variety of purposes like maps is one where they're saying, we need your data to provide the service, so we're gonna go ahead and take your data to provide this service. And there's a lot, there's a ton of sort of data use clauses scattered throughout here.

15:22 PK: Absolutely, absolutely. And those fall into a number of different laws. If we set the United States aside for the moment. And for the record, the Apple agreement is probably going to be unique by jurisdiction, they're probably gonna revise it slightly, jurisdiction by jurisdiction. In Canada, we have private data collection laws, Personal Information Protection and Electronic Documents Act or PIPEDA, actually regulates when someone can collect data. So this is complying with the Canadian statute. That's true in the European Union, which whose laws are even stronger. The United States doesn't have such a statute, but they certainly have Tort Law that will apply when someone has some, for instance, could sue for invasion of privacy or something to the equivalent of that effect. And we have a variant of that in Canada as well. So there's common law reasons for this, but there's a lot of statutory regulation that Apple's complying with.

16:21 MS: Right. And the other big piece of language I see in here, it's mainly sort of licensing stuff. It's, we use this but it's a license of that, we use this and it's a license of this other thing. And I guess they just kind of have to put that in for, well, legal reasons.

16:36 PK: Well, yeah, they are doing it for legal reasons. Again, their iPhone is based on other, to some degree is based on other people's intellectual property they've entered into agreements, as well as there's some statutory language that protects copyrights, trademarks, that sort of thing, of third parties and are saying, some third-party supplier provides something that is integral to an iPhone, part of the agreement that licenses that material to Apple is gonna say, and you must, we grant you this license and you must tell everybody that you have a license that that's not proprietary or owned by Apple. And so they're checking off a box in their contractual obligations really. It doesn't really impact on you whatsoever and you probably don't really care, but they are simply making sure that people realize that this is not all owned by Apple.

17:34 MS: So, there is a massive section of this that's in all caps. Why suddenly the shift from [chuckle] regular case typing to there's like about, well I would say three pages in total in here where suddenly just shift, is this to denote that this is the most important part of the contract?

17:52 PK: It's very interesting that you point out that it's three pages long, it's supposed to point out the most unusual or most onerous terms [chuckle] in the standard form contract. But yeah, as you say, it's about 30% of the agreement [chuckle] seems to be in caps. Some of it is not just in caps, but it's in bold as well. I guess they really want you to notice that. And that's literally what the law is. The old English law that's been adopted in common law Canada is that in any standard form contract, the courts will accept that. But usually standard form contracts are one-sided, they are there to protect the service provider, the Apple, Rogers or Bell or somebody to that effect and not you, the consumer. Again, the point being that we're trying to keep our costs down.

18:36 PK: The courts will enforce those, because you clicked, "I agree." But there are some things that tick off the courts and say, "We're not gonna enforce that, we've already mentioned the unconscionable clauses." But the other point under the old Anglo-Canadian law is that you've gotta give notice of terms that would be unusual or unexpected by the consumer where the consumer to actually read them or they would be onerous. And, by onerous, we mean we're flipping the onus. We're flipping the protection from the, what would typically be borne by the service provider onto you, you're accepting the risk yourself, so a waiver of any liability.

19:19 PK: A disclaimer saying, "Hey, we Apple, don't promise that this iPhone will actually do what it says it does and you can't sue us." Those things where ordinarily that would be their obligation, those are the provisions that are typically put in capital letters or in bold. Because they're supposed to be providing notice to you, "Hey, look at this, it's in bold and caps and sort of, our texts speak now, we put it all in caps, they're yelling at you." And that's the standard form contract equivalent of that. And if they don't do that, the courts have said, "Well, we're not gonna enforce that."

19:54 MS: So, onerousness is kind of a comeback to these contracts, or is it?

20:00 PK: In a sense that they are... From a consumer's perspective?

20:03 MS: From my consumer's perspective, they've had to do this. Because if they didn't do this, a court could theoretically say, "No, this contract isn't relevant because you've buried some very important language." You haven't made it easy to read and you haven't made it obvious. Is it possible of contracts that they're just too big for someone to read?

20:22 PK: It's interesting that our laws have gone down this road and then they seemed to have stopped. People have made the complaint that some service providers who aren't as considerate as Apple is here. As you point out, this actually does read grammatically well. There are others who have contracts that are two or three times the length of this and legally, how could you ever actually find this language and is buried. And the courts still seem to have accepted them. I think the courts are probably waiting for governments to come along and say, "In the interest of consumer protection, you must have these particular terms. You must write them in a certain way." And our federal government has gone down that road a little bit with cell phone contracts now.

21:14 MS: Right.

21:15 PK: Right.

21:15 MS: They have to be, to some extent, understandable to the lay person.

21:19 PK: Correct.

21:19 MS: It's been kind of weirdly rewarding to read this. [chuckle] I'm glad I did it. I don't think I'm ever gonna do this again. So, how much does this map, like if I have read Apple's terms and conditions, can I sort of say that I get the gist of most of these, or are they unique enough that really, I should sit down with my Rogers internet provider contract and read it as well? Or is it just gonna be kind of the same stuff in a different order?

21:45 PK: They are broadly the same. We covered certain categories that you're certainly gonna see in virtually every standard form contract, a waiver of liability. Even if you somehow manage to successfully sue us, our liability is capped at a certain amount of money. These third-party obligations... You're gonna see all of those things. I think one of the key things here to take away is where there's gonna be a variation is what they're disclaiming from contract to contract and what a cell phone provider is gonna disclaim is gonna be different than what Apple is gonna be disclaiming for instance.

22:27 PK: So, I still think it's worthwhile. Especially when you're signing a contract and you're clicking on terms, or looking at a standard form contract for something where somebody's providing a service to you. Apple's providing you with a phone, Bell or Rogers are providing you with a cell phone. Look and see what is in fact disclaimed and what is not. I think that's quite valuable to you. But otherwise, yes. They're broadly similar.

22:50 MS: Right. And broadly speaking, I should be able to go through and look for capital letters and bolding to see what's the most onerous in terms of... What's the highest burden on me as a consumer should be apparent.

23:00 PK: Interestingly, the burden on you as a consumer is extremely high. You're deemed to have read these terms and understood these terms simply by clicking, "I agree." So, the onus is in fact, on you. But you're right, if you look through and read the bold print and the capital letters, those are going to be the most, shall we say, injurious provisions for you.

23:24 MS: Okay.

23:25 PK: Okay?

23:25 MS: Well, this has been really helpful. Thank you, Peter.

23:27 PK: It's not often anyone is struck so fancifully by standard form contracts till I get a chance to talk about it. So, thank you, Matt.

23:37 MS: Thanks to Peter Kissick, the designer of our corporate law course. If you're interested in contracts and business law, you should take a look at Law 204/704: Corporate Law at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law. You can find out more about our music at meganhamiltonmusic.wordpress.com. Original illustrations for each podcast are created by Valerie Desrochers. You can see them at takelaw.ca. And visit Valerie's portfolio at vdesrochers.com. Thanks for listening.

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metoo has been changing how we see and react to harassment for some time now -- but what is the definition of harassment? Let's take a look at the Ontario Health & Safety Act with Workplace Law instructor Colleen Dempsey, and explore what conduct is legally harassing, how it affects workers in the province, and what implications it might have moving forward.

Brought to you as always by the Queen's Certificate in Law, the only online legal certificate program in Canada taught by a law faculty, at takelaw.ca.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

TRANSCRIPT:

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00:04 Speaker 1: Welcome to Fundamentals of Canadian Law. For over a year now, we've been watching the Me Too movement and a seismic shift in public perception and consequences around harassment. But Me Too has been very Hollywood-centric. We've been seeing some news and changes on the Canadian side, but as something that's rooted in the definition of harassment, we wanted to get a better understanding of where the law actually stands. Fortunately, Colleen Dempsey can explain it all. She is the instructor of Law 203/703, Workplace Law, and she's gonna walk us through recent changes to the Ontario Health and Safety Act. It wasn't changed in response to Me Too, but the timing couldn't be more pertinent to the cultural conversation around harassment happening right now. This podcast is brought to you by the Queen's Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:09 S1: Why has the province updated the Occupational Health and Safety Legislation?

01:14 Colleen Dempsey: The province had experienced through the complaint process a number of concerns over a period of time that involved unwanted advances, unwanted comments, unwanted touching, things that constitute harassment. They also updated it with respect to violence and then under a subset of harassment was sexual harassment. So they had a number of people, hundreds of people, thousands of people who made complaints under the Act, but there was no mechanism for these things to be dealt with until they actually amended the Act.

01:45 S1: Under the Act as it is now, following the amendments, what is the definition of harassment in Ontario?

01:51 CD: The Occupational Health and Safety Act defines harassment, workplace harassment as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or reasonably known to be unwelcome. And when they say "Vexatious," what they mean in law is that its sole purpose is to cause annoyance, frustration, or harassment to the intended victim.

02:11 S1: So, there's kind of two elements there. One is that it's annoying or frustrating or harassing and the other is you have to mean to do it.

02:19 CD: Right. So always, when we're dealing with this type of Act, it's called mens rea, you have to have a guilty mind. And it doesn't matter that you might think it's innocent or you think you're just playing. The fact of the matter is, you would probably get that it's unwelcome because of the way in which the recipient responds to it, or for that matter doesn't respond to it.

02:39 S1: So is there an element of persistence then to it as well? If something is, like, "That's unwelcome. Don't do it again?" Or is it kind of the first time you do it, that can in itself be problematic?

02:49 CD: Well, typically, the comment or conduct occurs more than once. It can in fact be only once. It could be so egregious that it's a single instance. However, it can occur over relatively short periods of time. For instance, during the course of one day, or a longer period like weeks, days, months, what have you. And when the situation is a single instance, an example of this would be unwanted sexual solicitation or an advancement on the person from a supervisor or manager that constitutes workplace sexual harassment where there is particularly a power imbalance.

03:22 S1: And we've mentioned the word unwelcome a few times. I think unwelcome is fairly self-explanatory, but the fact that we're saying unwelcome now is actually a step forward with the law itself, right?

03:34 CD: Absolutely. For a long time, people took the position that it was in good fun; that it was okay for people to make comments about other people's appearance, their sexual desirability, the color of their skin, the length of their hair, did they smile, did they not smile, did they have hair, are they skinny, are they not skinny, do they have a prominent behind, do they have prominent breasts? And people felt absolutely free to make comments. Typically, the comments, and we're speaking in a heteronormative sense, were from straight men to straight women, but that doesn't mean that it didn't occur from women to men and/or it didn't occur from men to gay men or to lesbians and in an attempt to intimidate or to isolate an individual.

04:20 S1: So this law obviously applies equally to everyone.

04:23 CD: Absolutely. Anyone who's classified as a worker under the Act.

04:26 S1: But the use of the word unwelcome is actually... It's a different word now.

04:30 CD: Yes.

04:30 S1: And it used to be sort of deemed offensive, or...

04:34 CD: So it had to be it was from the perspective of the reasonable person that it was objectively offensive and what not. But the point now, it's in fact from the recipient. From the perspective of the recipient, is this an unwelcome intrusion into their life? And they give examples such as making remarks, jokes, or innuendos that demean, ridicule, intimidate, or offend a person, displaying or circulating offensive photographs or material in print or electronic form, bullying someone, repeated offensive or intimidating phone calls, emails, unwanted touching, unwanted sexual harassment, even brushing up against someone if you do so in a deliberate fashion and you touched their behind, you go... Rubbing someone's forehead. Like there are things that people should just not do and people have done in the past and there came a point where the government realized enough was enough.

05:28 S1: Right. And everything you mention, some of these things, I have seen myself in workplaces I've been in the past. I should stress that I've seen none [chuckle] of these things in the workplace where I am right now...

05:38 CD: Go Queen's Law.

05:39 S1: Exactly. But I either have seen or can easily imagine all of these behaviors and I can also kind of squint and see how if I think back to when I was a kid, or when slightly older listeners might have been kind of young professionals, how all of this did use to be sort of hand waved away.

05:58 CD: Mm-hmm.

05:58 S1: So this is a stronger stance legislatively against stuff that we just used to not take as seriously, I guess.

06:06 CD: Well, absolutely. This certainly predates the #Metoo movement. This was a recognition of a past that in many respects, we as a society have moved forward as we have evolved the manner in which we have structured our Human Rights Legislation. As time goes on, we expand that which is protected grounds. To prevent discrimination or harassment you are prohibited to harass someone on the basis of race, ancestry, their place of origin, their color, their ethnic origin, their citizenship, their creed, which is a more archaic way of saying religion, sex, including pregnancy, their sexual orientation, their gender identity, their gender expression, their age, be it over or under 18 or 16, marital status, family status, disability, whether or not they're in receipt of public assistance, that is, of course, an accommodation, and the record of offenses in employment. So we expand the specific grounds, and we also have what's known as analogous grounds. If we say individuals who are not specifically set out in the Human Rights Code or in the Occupational Health and Safety Act but we recognize that they represent a discreet and vulnerable group in our society, so we will protect them as well. And we also say, as a society, it is inappropriate to discriminate or harass people in areas of employment, housing, services, and education.

07:32 S1: And this is all pretty central to Workplace Law. This is essential things that people need to know if they're going to be in or going to be managing a workplace.

07:40 CD: Absolutely. There is now and there didn't used to be, a positive duty on employers to create anti-harassment policies. And the onus is on them to provide this information to new employees so they understand what their rights are and, frankly, what their obligations are. So if one is, unfortunately, the recipient of harassment you can't just, or you shouldn't just sit there and say to yourself, "Okay, it'll go away. It'll go away." You have a positive duty to say something. We all have a role in this in our workplaces to prevent this from going further. So if someone harasses you or you are a witness to harassment of a colleague, it is incumbent upon you to go to the person who is the HR, the supervisor, and say, "I have seen X, Y and Z occur," and then it's incumbent on them to address it. And there are reporting obligations through the Occupational Health and Safety Act and whether or not you call the Ministry of Labor, but you must take that first step.

08:40 S1: So this idea of it being incumbent on you, that's what's meant by a positive duty?

08:44 CD: Yes, a positive duty that... We all have a role to play, and the only way that we can prevent workplace harassment and workplace sexual harassment is if we all recognize our duties. And certainly, now employers have this obligation to investigate complaints. Previously, people would go and say, "Oh, so-and-so is causing a problem. He or she is making inappropriate comments about someone's attire or their national dress," or what have you, and they would... Employers would go and say, "Hey, please don't do this." Now you have to fill out reports. You have to acknowledge. And if there's a pattern of conduct, then this constitutes an opportunity to terminate someone's employment so that they are no longer in a position to offend.

09:28 S1: When we started looking at types of conduct, when you were reading the definition of harassment and we unpacked it into certain areas. There seem to be two large areas in there. One is things that can happen peer-to-peer, but the other is this idea of an imbalance of power. That this can play out in a way that... The law is supposed to prevent people who are at a higher level or have more power from literally abusing the people who are underneath them.

09:54 CD: Right and taking advantage of them. So there is a recognition throughout our legal system that where there is an imbalance of power, be it an employer, an employee... And it used to be called the master-servant relationship in recognition that the person who holds the purse strings ultimately they can prevent you from advancing. They can prevent you from getting raises. They can, in fact, prevent you from doing your job. It can cause mental health issues. It can cause physical health issues. A person in position to confer or grant you a benefit or somehow an advancement in your workplace, they must not solicit you for sex, for sexual favors, or they must not harass you. People have, unfortunately, been victimized by inappropriate images of a racial nature or a sexual nature. I, myself, when I was [chuckle] a general counsel, on the highest legal officer in a corporation, I had a male employee send me a photograph that was pornographic in nature, and he thought it was hysterical. He could not understand what it was I didn't like about this photograph. And, in fact, we had to sit him down with a sensitivity counselor for him to understand that in no shape, way, or form was I interested in receiving this from anyone, let alone somebody I had spoken two words to.

11:10 S1: Right.

11:11 CD: And he took it as I had no sense of humor, whereas he had to understand he was inappropriate. It was unwelcome.

11:20 S1: Right.

11:21 CD: And that is now the change. The person who's the recipient no longer has the onus to say, "Well, this is why it's... I'm not a sensitive person. Other people would be disturbed by this as well." We can no longer accept workplaces where individuals are treated in that fashion.

11:41 S1: Broadly speaking, this legislation represents a shift to an environment where the law is moving kind of with society.

11:49 CD: Right.

11:50 S1: This is something that comes up fairly often in this space is that the law is a living document.

11:55 CD: Absolutely.

11:56 S1: It's evolving with us, so it feels like as a society we're saying things that we used to accept we no longer accept and the law has now kind of... I don't know if it's catching up. It sounds like, from your example it catches up in some places and it sort of forces people forward in others.

12:12 CD: Well, if you look at the law, in general, in Canada, and in fact, if you consider the person's case that recognized women were people under the law, the language in there, in fact, the law is a living tree that we recognize as our society evolves, and groups and individuals that were previously considered to be less than are welcomed into the tent of our society and are valued members of our society. And if we look, by contrast, to other jurisdictions, we can see that people are not so welcoming. In fact, when I was in law school, that was when the legislation went through to recognize same-sex partners, providing spousal benefits, and eventually the right to marry. And these are issues of rights and Canadians have a strong belief, and this is demonstrated through survey after survey that Canadians are not comfortable with the idea of restricting rights. We are more an inclusive view of rights as opposed to an exclusive list of rights. So that's why we have analogous grounds. So if you don't fit within the 17 categories, but you can demonstrate that analogy to those categories, then the law says, "We will protect you."

13:22 CD: And over time we recognize that the past treatment of individuals and asking people to accept what is truly unwelcome and unacceptable behavior. And I would emphasize that it's not that every person in every workplace was experiencing this. What it was was very often a single person in a workplace was engaging this conduct over a course of time to many, many people. And so, you have one person who, through a desire to intimidate or to hassle and what have you, made the work experience of so many people uncomfortable. We're talking about invading people's personal space, demanding hugs, and this is course of a sexual nature, verbally abusing people, or making gender-related comments about physical characteristics, the mannerisms, saying to a man, if he was considered to be an effeminate man or a woman who was considered to be butch. None of these things have anything to do with someone's job and how in fact they do their job. But people did feel free to comment on, down to you didn't smile today. "What's a nice girl like you... Why wouldn't you smile?" Maybe that person doesn't wanna smile. Maybe they're not feeling like smiling.

14:40 CD: So we... And we want to also take a stand against violence in the workplace, because often the harassment can escalate into a position of violence where individuals are rebuffed. A good example of evolution in our society is gender identity and gender expression. So gender identity is a person's internal and individual experience with gender and it's their sense of being a man, a woman, both, neither, or somewhere, anywhere in between on the gender spectrum. And the manner which they express that is their choice. And gender expression is how they publicly express this. For a long time people felt that you are either a man or a woman. And in fact, one of my dear friends, a well known professor, a legal professor, transitioned from a man to a woman at the age of 69. That would have been unheard of 20 years ago. Even in a progressive profession like the law, this person would have been looked at askance. But now people go, "Oh, I understand."

15:50 S1: Yeah. And, so the law's sort of evolving with us.

15:54 CD: Absolutely.

15:54 S1: And as we move forward. What you were talking about, people who are gender fluid, that's a situation that was once analogous and is now text.

16:04 CD: Correct.

16:04 S1: So this is... I don't think there's any way to predict the future accurately but it's interesting to think that if people are bringing up analogous grounds today, that may well become the text of tomorrow.

16:16 CD: This in fact is how our laws work. If you consider disability, for a very long time employers were not required, if someone had a hearing difficulty or if they had a visual difficulty, the employer was like, "Well, you can't do the job." But now, we've reached the point where we're saying, "No, no, no. Is hearing or sight a bonafide occupational requirement? And if you're gonna say that it is, you better be able to demonstrate that both objectively and subjectively."

16:43 S1: Right.

16:43 CD: And now employers have a duty to accommodate people to the point of undue hardship. And this is something that was not the case. I, myself, having two children, one of whom is legally blind and the other has a hearing impairment, had my children been born say 25 years ago, they would face very different workplaces and they will when they are adults and they won't be adults for a good 10 years. So I have great hope for what the workplace will look like for them, particularly as they are young girls.

17:14 S1: Right.

17:15 CD: And I fully recognize that men and race and gender and gender fluidity are also vulnerable groups. If you think about that.

17:29 S1: So it feels like kind of at the end of the day, and Workplace Law is complicated. This is why we have an entire course about it. [chuckle] And well done, you, for taking us through this course.

17:37 CD: Thank you.

17:40 S1: It feels like, though, at the end of the day, if there's just one nugget, if there's a golden rule, it's if it doesn't have anything to do with the actual job that's being done, leave it out.

17:49 CD: Absolutely. Of course we don't wanna create workplaces where people have no human interaction. But as you say, if it is nothing to do with the job, err on the side of caution, simply because someone might find it unwelcome, and they may not feel in a position where they can express their discomfort. And I'm thinking in the future where I do think the law will continue to evolve is under the definition of who a worker is because there are certain restrictions both under the Employment Standards Act and the Occupational Health and Safety Act of what constitutes a worker, and so this causes problems for people who are in precarious employment situations, and the law does not provide them with the same coverage that it does for people who are in traditional employment relationships. So I think the law will then expand the definition of who is covered.

18:40 S1: I think that's probably an interesting second conversation actually.

18:45 CD: Well, hopefully we will have it.

18:46 S1: Yeah, thank you very much.

18:47 CD: Thank you for having me.

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18:51 S1: Thanks to Colleen Dempsey. If you have employees, plan to hire employees or are an employee, you should work into our course on Workplace Law, Law 203/703. Find out more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton and original illustrations for this podcast available at takelaw.ca are by Valérie Desrochers. Thanks for listening.

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There’s a lot to unpack when it comes to the Kinder Morgan — soon, Government of Canada — pipeline. British Columbia has challenged it, as have several Indigenous groups. But what laws govern their ability to challenge this national project? We explore first the distinction between federal and provincial powers with Associate Dean Cherie Metcalf, teacher of the Constitutional Law module in our Introduction to Canadian Law course… and then dive into Indigenous and Aboriginal law, chiefly the “duty to consult,” with the creator and instructor of our Aboriginal Law course, Hugo Choquette.

Curious about the cases Hugo cites in his portion? Here are the links:

Haida Nation: http://canlii.ca/t/1j4tq

Chippewas of the Thames v Enbridge: http://canlii.ca/t/h51gx

Tsilhqot’in: http://canlii.ca/t/g7mt9

Brought to you as always by the Queen's Certificate in Law, the only online legal certificate program in Canada taught by a law faculty, at takelaw.ca.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

TRANSCRIPT:

[music]

00:03 Speaker 1: Welcome to Fundamentals of Canadian Law. I’m Matt Shepherd, and this is our first ever two-parter. There’s been a lot of conversation about pipelines in Canada lately. This episode of our podcast actually bridges a recent change. Part 1 was recorded before the federal government announced it was going to purchase a transnational oil pipeline from Kinder Morgan, and part 2 was recorded after that announcement. The facts discussed in our first half aren’t really changed by this purchase. In fact, it streamlines the conversation, but we just wanted to make that clear off the bat. Federal priorities and trade law, provincial laws, Aboriginal and indigenous law, it’s all being discussed right now in the context of the Kinder Morgan pipeline, soon to be the Government of Canada pipeline. The pipeline is being championed by the federal government. It’s being challenged by a number of groups. So we wanted to unpack the legal premise and some of the details of these challenges.

01:03 S1: In our first part, we’ll be talking to Associate Dean Cherie Metcalf, the Instructor for the Constitutional Law module of Law 201/701: Introduction to Canadian Law. We’ll be discussing the division of powers between the federal government and the provinces and how BC can challenge the pipeline in some ways, but not in others. In our second half, we’ll be joined by Hugo Choquette, the Course Designer and Instructor for Law 202/702: Aboriginal Law. We’ll be talking about the pipeline from an indigenous and Aboriginal law perspective, the rights of various Aboriginal groups to mount challenges and what the legal structures around those challenges are. This podcast is brought to you by the Queen’s Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.

01:58 S1: So, Kinder Morgan is running a pipeline across Canada carrying bitumen, and BC essentially has some legislation on deck, which is going to prevent that theoretically?

02:11 Speaker 2: Yeah. BC is actually, they’re bringing this referenced case to their own Provincial Court of Appeal to see whether or not they can impose certain kinds of environmental restrictions. So what makes it tricky constitutionally is the possibility that these environmental controls could actually mean that you could stop transportation of bitumen through BC unless you meet the criteria that they’ve set environmentally. That’s the thing that makes it seem like it could hold up the pipeline project.

02:46 S1: Right. And that’s illustrative of the division of federal and provincial power in that the province doesn’t have the power to basically just forbid something outright, but it has the power to regulate things as long as those are regulations that are pertinent to power that the province itself holds. I don’t know if I’m saying that very clearly but you see what I’m getting at.

03:07 S2: Yeah, yeah, yeah. Yeah, powers are divided between the federal and provincial governments, and the ability to regulate something like the Kinder Morgan Pipeline as a… There’s a federal power to do that for things like federal… They’re called federal undertakings. So something like a federal transportation network that’s intended to allow shipment of goods to international markets. That is the kind of thing that we recognize the federal government’s got the power to regulate because it’s important for the national interest and there’s a long history there. So railways are another good example of this kind of federal undertaking.

03:49 S1: And even if the undertaking questions for a private enterprise, it’s still a federal undertaking that the federal government legislates.

03:57 S2: Right, it’s the… Even if there’s a company that’s involved, it’s the power to regulate that federally that really is an issue. Is it the federal government that actually who gets to set the constraints that that company is gonna have to follow? Or what role is there for provinces to set up additional constraints? So this is something that has come up in the past because provinces do have an ability to actually regulate what goes on within their borders, so they do have the ability to legitimately set up things like environmental protection statutes because we’re worried about, as people living in BC, what happens to the water and the air and the environmental conditions in BC.

04:46 S2: So where it gets tricky is where we try to figure out, well, what’s the impact on this federal kind of enterprise from the BC legislation? And it’s totally fair for BC to have legislation and it can even have an effect on federal undertakings, but what the courts have said in the past is, “Well, I can’t go so far as to sort of impair or fundamentally interfere with the federal government’s ability to actually regulate these things.” So there’s some kind of a boundary in there between what the provinces can do and how they can regulate things within the province and when they’re gonna go too far and essentially interfere with, or stop, or prevent these federal undertakings from being able to operate.

05:35 S1: So BC has the power to have its own, as you said it, it has the power to have its own environmental regulation so they can say, “Hey, well, we will only let people take these environmentally hazardous things through BC if they have the appropriate permits.” And that’s a measure of control they can exert over this pipeline. That’s how they can do it constitutionally but when people are deciding whether or not this is legitimate, whether or not it goes too far, do they take motive into account?

06:07 S2: So when in [06:08] ____… The people that will be trying to decide whether it goes too far or not, it’s essentially the courts where they’re gonna bring this and ask judges to review it in light of all the previous cases. So, what they’ll really be trying to do is they’ll be looking at the legislation and where motive sometimes can come in is through things like the legislative history and looking at the legislation itself. So they’ll be trying to figure out, “Well, is this something that in pith and substance really is a genuine regulatory program that fits within BC’s jurisdiction?” One possibility could be… Well, actually the real point here is to try and essentially stop interprovincial trade. If that was really the pith and substance of what the scheme was they were going to enact, that’s not a power that the province has. It could be related in that sense, but the court will look beyond headlines in the newspaper. So they’ll look at all kinds of components, they’ll look at the legislation itself and they’ll look at it as part of the larger scheme.

07:13 S1: Right. I guess because the question in my head when I hear about this, and this may not be a fair question is, is this being done out of a legitimate concern for the environment? Or is this, “Hey, we’ve got a thing here that’ll let us stop this pipeline so let’s use this thing, and the environment’s a bit of a fig leaf, that lets them do the one thing they can do.”

07:35 S2: Yeah. In this case, I think that BC, part of the reason they possibly wanna stop the pipeline is because they have a legitimate environmental concerns, right? [chuckle]

07:48 S1: Right.

07:51 S2: They’re related things. If you look at the proposed legislation that they referred to the court, it does really focus on things like the risk of a spill and possible harm to the environment and they talk about implementing the ‘polluters pays’ principle so they wanna have assurances that whoever’s gonna be in possession of this diluted bitumen is actually going to have the resources to deal with any spills and that they’ve got a plan and all these kinds of things.

08:20 S1: So it’s not on its face a fig leaf, it’s legitimate?

08:22 S2: Yeah. No, no, no. But I think that there are genuine concerns about it. And so part of the constitutional tug of war here is, “Well, at what point do those local concerns, do they ever allow a province to trump the interest in an interprovincial or a national priority?”

08:44 S1: Right.

08:45 S2: So the federal power allows the federal government to essentially declare something to be a federal undertaking or to regulate something in the interest of trade. Like I say, so there is sort of this historic power to, in narrow ways, it doesn’t allow the… Certainly, it restricts the federal government, but it does allow them to regulate these kinds of enterprises in a way that can mean provinces don’t get to say no.

09:15 S1: Right.

09:15 S2: And so that’s why this case is actually… Like I say, it’s a little bit of a difficult tug of war because I think British Columbia views itself as having legitimate reasons for concern when it comes to having the pipeline traverse its territory.

09:31 S1: But when the courts look at this, too, it’s not just a pipeline and it’s not just an environmental concern, it’s a precedent for all provinces and the federal government?

09:40 S2: That’s right. It is a constitutional precedent that looks at, “Well, what is the federal power to actually regulate in the national interest?” And given that we’ve recognized that in the past, historically, provincial laws are not able to be applicable constitutionally if the effect there would be to really impair the federal regulatory power.

10:09 S1: Right.

10:09 S2: So that suggests that British Columbia, even though they have some legitimate provincial interests, if they try to use them or try to regulate in a way that would actually allow them to stop the pipeline from being effective by essentially being able to say, “Well, you can’t ship unless you comply with our regulatory standards.” That could really be potentially problematic in terms of precedent and the ability of the federal government to actually regulate important things that are recognized as national needs and national priorities.

10:46 S1: So a court decision may not be entirely based on just this one instance, it’ll be based on what this instance means moving forward?

10:53 S2: Yeah, generally. Generally speaking, that’s usually how court cases [chuckle] are decided.

10:58 S1: Right.

10:58 S2: You hope that’s what it’s gonna look like?

11:00 S1: Yes.

11:00 S2: Yeah, yeah.

11:00 S1: That’s literally what precedent means.

[laughter]

11:02 S2: It’s literally what precedent means.

11:02 S1: And that’s the foundation of our system of justice.

11:03 S2: Exactly.

11:05 S1: Right.

11:05 S2: Yeah, exactly. Yeah, and then precedent is very important in constitutional cases as well.

11:10 S1: Right. And I guess the point I’m trying to make is, even if the decision doesn’t go BC’s way, it doesn’t necessarily mean there isn’t a commitment to environmental values on the courts.

11:17 S2: Oh, no.

11:18 S1: It’s about this much broader issue.

11:19 S2: Yeah. And it may be that there are certain things that they can do within their own legitimate regulatory power without reaching the stage of actually impairing the federal pipeline operations.

11:35 S1: Right. I feel like this tension must be fairly constant in Canada too, is the federal provincial issue that we’re unpacking a bit here ’cause it’s just come to such a sharp point.

11:47 S2: Yeah, that’s right. There’s the balance between provincial power and federal power has come up lots of times in the past and actually the recent Comeau case.

12:06 S1: Right.

12:06 S2: So this is the one about moving goods interprovincially that talked about whether or not you could bring beer across the provincial boundary.

12:12 S1: Yeah.

12:14 S2: In some ways that’s another case where this federal versus provincial autonomy is at issue.

12:20 S1: Right. Because federally you could transport goods from province to province.

12:23 S2: Federally.

12:24 S1: But province has the right to legislate its own.

12:25 S2: Well, the federal government is the government that’s actually got the power to regulate interprovincial trade.

12:31 S1: Right.

12:31 S2: So provinces can’t enact laws that directly aim at regulating the flow of goods across provinces. So that’s why BC, they can’t enact an environmental law that’s really about trying to prevent movement of goods across borders.

12:47 S1: Right.

12:48 S2: If it’s really about that and not about its own domestic environmental stuff, it can’t do that.

12:54 S1: But they can legitimately say we have environmental concerns and we’re gonna legislate this right now.

12:56 S2: Exactly. But they can legitimately, and there can even be sort of an incidental or secondary effect.

13:03 S1: Right.

13:03 S2: So that’s where you get into these. And that’s essentially what the court found in the Comeau case is that there was a permissible secondary effect of trying to regulate the control over the liquor supply within the province that had an effect on whether or not you could bring goods in, but it wasn’t directly about trying to control that trade as its main focus.

13:28 S1: I don’t know if this is an answerable question but will the Comeau decision have a direct bearing on any BC decision?

13:36 S2: The Comeau decision is really, it’s more directly about the interpretation of Section 121, which is about sort of a… It’s a common market clause. And the BC decision I think will more likely be about the federal power to regulate federal undertakings versus provincial power to regulate internally within their own division of powers. So I think it’s not directly applicable, but some of the themes around recognizing provincial autonomy and leaving enough space for provinces to have legitimate ability to regulate things that are of concern in the province, I think that sentiment will probably be relevant to the Kinder Morgan reference.

14:27 S1: Right. Well, I feel like I understand so much more now. Thank you, Cherie.

14:29 S2: Good. Great. Thanks, Matt.

[music]

00:00 Matt Shepherd: So Hugo, I thought maybe in the context of the pipeline, we could just talk about what are some of the aboriginal law issues just surrounding the whole situation, the whole thing.

00:10 Hugo Choquette: Right. And it’s interesting because these issues go to the heart of Aboriginal law, which as we’d discussed in a previous podcast, is that law of the Canadian state which applies to Aboriginal peoples. And the lawsuits had been brought by some of the First Nations in this particular instance argue that the First Nations were not properly consulted. So it’s important to understand where there’s duty to consult on behalf of the federal government and provincial governments comes from and why it’s such an important right for the First Nations, but also a duty on the Crown. And the other thing I wanna say, though, just from the outset is it’s also important to remember that there’s several First Nations who are supporting the project. There’s actually 43 First Nations that have actually signed deals previously with Kinder Morgan that are now going to have to decide what the impact of the federal government’s purchasing the pipeline is going to be.

01:05 HC: So it’s not the case that this is universally opposed by First Nations groups. I think it’s important to remember that even though there are several groups, seven in fact that are actually opposing it. So in terms of the duty to consult, the main thing is to understand how Aboriginal rights really function in our law. And I think to understand that, you have to ask a very strange question, which is… The question behind all of Aboriginal law is, “What rights do people have in the territories that they have inhabited for millenia?” And that seems like a very odd question, and that’s because it is. But the bottom line is that, that’s what Aboriginal law, which is part of Canadian law, tries to figure out is, “What rights do people have on their traditional territories that they’ve lived on for many millenia?” And what’s important to understand about that is that when the British Crown, in this case, claimed sovereignty over the land, so once we had some discovery and settlers, so-called discovery and settlement, the British Crown at one point claimed sovereignty over all of what is now Canada, at different time periods of course.

02:15 HC: What happens at that magical moment in Canadian law is that not only does the Crown gained sovereignty, but it also gains the underlying title to all of that land. And I think you may have actually explored this in another podcast that the Crown actually or technically owns all the land in Canada, and that’s the common way we do it in the common law system.

02:33 MS: Yeah, we talked about that with Dean Flanagan a few weeks ago, that the fact that I own a house doesn’t actually mean I own the property. I have rights to the property.

02:41 HC: That’s right. And the problem when it comes to indigenous peoples is that they actually were here first obviously, and they had their own laws, their own ways of organizing property rights before all this happened. And for many of them, they didn’t see a European or a British settler until many, many years after this supposed assertion of sovereignty. But nonetheless, that is the way in which Canadian law views it, is that the Crown has underlying title to all of the land in Canada. And so where does that leave the indigenous peoples who have lived on their traditional territories for so many years? Well, it leaves them in the position of having to prove that they have rights to those territories. And so whether it’s what we call Aboriginal Title which is a property right, very similar to the highest form of property ownership in the common law system, which is fee simple. It has some differences from fee simple but it’s very close to it. Or Aboriginal usage rights such as hunting, fishing, other kinds of rights. These will have to be proven in court.

03:40 HC: No indigenous people can assume that they have these rights, or at least they won’t be recognized in Canadian law until they’ve been proven in court, which is a very strange thing if you think about it that we require people who have lived a particular way and done these things for millenia, we’re now saying, “Well, we’ll recognize your right to do so, but only if you prove it in court.” And so what happens is, it takes a long time and a lot of resources to do that. One of the famous cases that proved Aboriginal Title was the Tsilhqot’in case, which the Supreme Court decision on that came through in 2014. And just to give you an example, in that particular case there were 339 days of trial which lasted over five years. So you can imagine the number of resources that are expended on proving these claims. So, where does this bring in the duty to consult? Well, the question then becomes, well, until these claims are proven, they are not really fully recognized legal claims as far as the governments are concerned.

04:40 HC: So does that mean the government can do anything it wants and just run roughshod over all of these claims? And that question came up specifically in a case called Haida Nation in 2004. And the judgment, which was written by Chief Justice McLachlin at the time, clearly said, “No, that can’t be the way it is, largely because of this thing we call the Honor of the Crown.” And so the Crown is deemed to be honourable, it’s deemed to not do things in a way that is dishonourable. And clearly it would not be honourable for the Crown to simply ignore these very strong claims in many cases that are made to these traditional territories and say, “Well, we know you’re making a claim here but we’re not gonna bother with that because you haven’t proven anything in court yet. So we’re just gonna do whatever we want anyway.” So what then is the situation? Well, then what we have is a duty to consult, which is placed on the Crown. And the Crown in this case has been clarified, it means both the provincial and federal governments depending on what the situation is.

05:39 HC: Most public lands in the province will be owned by the provincial Crown, so in that case, it would be, partly the provincial government would have a duty. But also we know that the federal government has a specific mandate through the Constitution Act 1867 to look after what was termed then “Indians and lands reserved for Indians,” which we know now includes all indigenous peoples in Canada, so all Aboriginal peoples. And so both levels of Crown might have a duty to consult, and the duty to consult… The question then becomes, “Well, what does that mean?” [chuckle]

06:11 MS: Right.

06:13 HC: And we’re not quite sure what it means, but it means different things in different contexts. The court was very clear in Haida Nation and in subsequent case law that there’s a spectrum. On one end of the spectrum you would have a situation where an indigenous group has a claim, but it’s not particularly strong, for whatever reason, maybe there’s conflicting claims, maybe another group has a claim to the same area, maybe this group hasn’t occupied that area for a long time, and that’s a known fact. For whatever reason, the claim isn’t very strong. And at that point then you would have a lower duty than you would, for example, if… So in the Haida case for example, the Haida have inhabited the islands that used to be known as the Queen Charlotte Islands, they’re now called Haida Gwaii, and they’ve lived there without any opposing or conflicting claim for millenia. It’s a very strong claim that they have to that area. And so, in that particular case, then it would require a much higher level of consultation and possibly accommodation of their interests.

07:15 HC: The other factor on the sliding scale is the government, the proposed action that would interfere with the rights. At one end of the spectrum, you’d have something that’s gonna have a very minor impact on the rights and that would require less consultation, but on the other end you might have something, for example, in the Haida Nation case, you had a permit to clear cut some areas of the forest there. So that would obviously have a great impact on the rights involved or the rights claimed at least. And so that would then result in a higher level of consultation needed. And so the key in a lot of the cases that have been coming through is whether, what level of consultation is required and how do we determine whether it’s been adequate or not? The other important element is that, and this is tricky again, but the duty is always on the Crown, so it’s always the Crown that has a duty to consult. Nobody else has a duty to consult, but while the ultimate responsibility is always with the Crown, the duty itself can actually be delegated for procedural purposes, which means that in other words, other parties can engage in negotiations that will fulfill the duty. It doesn’t mean that the government has to be at the table at all times.

08:23 MS: So the Crown could appoint an arbitrator?

08:25 HC: That’s right, it could. Even a third party could be part of the negotiation as it has been the case in the past, and as was the case here with Kinder Morgan being part of the negotiations. The Crown doesn’t have to be itself at the table, but ultimately if there’s inadequate consultation then it is the Crown’s duty so the Crown will have to answer for that.

08:45 MS: So that raises a couple of questions. The first one was, 72 hours ago, I would have been asking you, “So how does that apply to a private company like Kinder Morgan that’s establishing a pipeline?” Now the federal government’s taking that question off the table.

09:00 HC: That’s right.

09:00 MS: The first thing, they’re gonna buy the whole thing outright. But had they not done that would the federal government be just saying, “Okay, Kinder Morgan, we authorize you to carry out these consultations”?

09:13 HC: Yeah, in a way. I mean, it doesn’t even have to be formal, it can just be assumed that Kinder Morgan will be negotiating. The ultimate best outcome of course, is agreement. So, it’s where you obtain the consent of the group involved to the activity that you’re proposing. And in that case of course, there won’t be any review of whether the duty to consult was met. Where it becomes an issue is where you have that third party, for example, Kinder Morgan engaging in negotiations, and then there’s a question as to the adequacy of that consultation because, again, the duty remains with the Crown. So ultimately, it’s the Crown that has to answer for that and has to ultimately ensure that the consultation happens, and happens in an adequate manner.

09:54 HC: For example, in this case as well, one of the questions that came up in a case that was released late last year, which was known as Clyde River and a companion case involving the Enbridge pipeline was whether the process of the National Energy Board, so the hearings that the National Energy Board conducts before they can grant a permit for the pipeline, whether those were sufficient to involve adequate consultation of First Nations groups. And the courts have said, “Yes, provided there is a meaningful opportunity for the Aboriginal group involved to present their point of view and the process there is adequate, that will satisfy the duty to consult.” It can be a regulatory agency, such as the NEB which is involved in this case, which is actually carrying out the consultation, even though the duty remains on the Crown at all times.

10:44 MS: Right. And this duty to consult, obviously, it’s incumbent on the Crown, but that has to be done with each community individually.

10:53 HC: That’s right, yes.

10:54 MS: Off the top, you mentioned that there is a large number of indigenous communities that are on board, they’ve been consulted and they’ve reached in a point of agreement, but there’s still a smaller group, but still substantial of communities that have issues and these are all individual sets of consultations.

11:12 HC: That’s right. Now, some of them may have common issues, and so they may be dealt with together. Certainly the lawsuits have been joined by other First Nations, so they’ve grouped together. But it’s important, again, to clarify that it’s not just… So when we talk about First Nations and communities, it’s important to clarify that it’s not just the reserves. Reserve land is obviously encompassed within that, but it’s much broader than that because it involves traditional territories, so territories which may now be either Crown land or under private ownership that were traditional territories of these nations and which they have a claim to. And so, those are the territories that are involved, so it can actually be much wider in scope than just the immediate vicinity of the First Nations community itself. And that’s part of the complexity of this as well.

11:55 MS: So does the transition, if the government follows through with the purchase of the pipeline from Kinder Morgan, will that simplify the overall portrait here?

12:04 HC: Well, it could or it could have little effects. On one hand, it simplifies things in that it takes a player out of the issue, the third party, Kinder Morgan. So that now it becomes clear that this is really between the federal government or the federal Crown and also still keeping in mind that the provincial Crown has some responsibilities here, but it really becomes between the Crown and the First Nations groups. On the other hand, the real question now is whether the process that’s already been gone through with the National Energy Board and negotiation with Kinder Morgan, whether it’s adequate.

12:33 HC: And there’s a lawsuit currently pending in the Federal Court of Appeal that is reviewing that largely because of new information that came to light that, apparently according to some sources, there were officials in the federal government who at the same time as they were telling the First Nations, “Well, we haven’t made a decision yet, this is an ongoing negotiation,” were telling their officials who were working on this to find a way to approve it. So it seems, if those allegations are proven that the Crown wasn’t negotiating in good faith, which is always part of the… For consultation to be adequate, it would seem that it would have to be in good faith. And so if the court accepts that version of things, then the whole process would be deemed inadequate and we might be back to square one in terms of consultations.

13:22 MS: So is there an outcome here, where if the duty to consult is not met, the pipeline can stop? Period.

13:29 HC: Yeah, if the court finds that the duty to consult was not adequately engaged in, then absolutely, the court can stop the process because this is a constitutional right, so the duty to consult is part of the Section 35 rights of Aboriginal peoples of Canada. And so it would be essentially acting unconstitutionally on behalf of the Crown. So yes, it would absolutely stop things.

13:51 MS: So this is an absolutely vital part of the pipeline process?

13:53 HC: It is, yes. And so, obviously at this point, it’s unclear whether the court will agree or not. There have been other challenges that have been rejected. And reading the jurisprudence, looking at the Enbridge case for example, that came out, it seems like the courts are willing, in many cases, to give some leeway to regulatory agencies like the National Energy Board. And the courts tend to focus on the process more so than the results, and the process would involve things like, “Were the groups given a fair opportunity to present their views? Was there an attempt to respond to some of the concerns? Was there a hearing held that allowed them to air their views?” Those kinds of procedural things are more at the heart of the duty than the actual outcome. The courts tend to shy away from expressing their views on the particular outcome.

14:46 MS: Right.

14:47 HC: But in this case, there’s a huge, obviously, huge importance to this so I think the courts will take the time to really review what happened and whether there was good faith consultation here.

14:57 MS: And I imagine the issues on the indigenous end are fairly uniform in terms of what their concerns are.

15:04 HC: Yes, and in fact one of the very interesting things about this is that the one nation that’s leading the lawsuit currently in the Federal Court of Appeal, the Tsleil-Waututh Nation, they have actually carried out their own environmental assessment, an assessment of the project using the principles of their indigenous law, and they’ve actually put that out as part of their report. So, this is fascinating because it means that they are using their own law to assess the project and really making the argument that this is their land and they are situated right on Burrard Inlet, so they are right at the outlet point of the pipeline. And they’re arguing that this should be decided in accordance with their laws just as much as with Canadian law. And so that’s really an interesting assertion of sovereignty, if you will, over their territory, and to pursue that in that way is something we haven’t really seen a lot of before.

15:55 MS: Yeah. No, that is fascinating.

15:57 HC: Yeah.

15:58 MS: So obviously, it’s a developing situation. We may be discussing it again.

16:02 HC: We may be, yeah. [chuckle]

16:02 MS: In the short term or medium term.

16:04 HC: That’s right.

16:04 MS: But yeah, is there anything else you’d like to bring up in the context?

16:08 HC: No, I think, again, it’s a very interesting issue and it goes at the heart of a lot of what we look at in Aboriginal law, it’s a very fundamental issue, so I think it’s a fascinating issue for that reason.

16:20 MS: Great. Well, thanks so much, Hugo.

16:22 HC: Thank you, Matt.

[music]

16:25 Speaker 3: Thanks to Cherie Metcalf and Hugo Choquette. If you’re interested in constitutional law, Cherie is the instructor for our constitutional law module of Law 201/701, Introduction to Canadian Law, at takelaw.ca. We also go deep in an entire course on Public and Constitutional Law, Law 205/705. And if Aboriginal law is of interest to you, Hugo Choquette has designed and teaches an entire undergraduate course on the subject, Law 202/702, again at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen’s University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton. You can find out more about her music at meganhamiltonmusic.wordpress.com. If you liked this podcast don’t forget to rate and review us on iTunes. Thanks for listening.

[music]

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We all know that the Canadian federal government is decriminalizing marijuana, but what does that mean? Queen’s professor and former Associate Dean Academic, Cherie Metcalf, is here to explain how the federal government and provincial governments are legally linked, and how that intricate relationship is key to understanding how pot decriminalization will happen. Cherie is also the creator of the Constitutional Law module for Law 201/701 in the Queen’s Certificate in Law.

Brought to you as always by the Queen's Certificate in Law, the only online legal certificate program in Canada taught by a law faculty, at takelaw.ca.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

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00:05 Welcome to Fundamentals of Canadian Law, I’m Matt Shepherd. We all know the Canadian federal government is decriminalizing marijuana, but what does that mean? Queen’s Associate Dean Academic, Cherie Metcalf, is here to explain how the federal government and provincial governments are legally linked and how that intricate relationship is key to understanding how hot decriminalization will happen. Cherie’s also the creator of the Constitutional Law Module for LAW 201/701, in the Queen’s Certificate in Law, the only online program of its kind offered by a law faculty in Canada. You can find out more at takelaw.ca

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00:49 MS: So I’m talking to Cherie Metcalf, who's the Associate Dean Academic at the Law School and the developer of the Constitutional Law Module for Law 201/701. Hi Cherie.

00:58 CM: Hi Matt.

00:59 MS: So basically in July of 2018, July of this year, a bill is becoming Law, and that marijuana will be legalized in Canada so I was wondering if you can kind of unpack some of the Constitutional Law that sort of surrounds all what's happening with that.

1:25 CM: Sure Matt, I'd be happy to talk about that. Marijuana legalization is gonna be exciting for some people. And it's exciting for Constitutional Law scholars as well because this is a really good example of how Canada's Federal Constitution can be seen in action. So when we say that marijuana is gonna be legalized, it's actually going to be a very complicated package of laws that are to be passed. The main thing that people are thinking about is the decriminalization of the simple possession and sales of marijuana for basically personal consumption so it'll be much more like alcohol or tobacco, right. So that's sort of the federal piece of the picture, but once you decriminalized it, then there's another piece of the picture that's about how we actually gonna sell it, and regulate it, and market it, and who's gonna be able to buy it and right. So that's actually a piece of the legalization of marijuana that's going to be largely influenced by the provinces because under the distribution of legislative powers, its provinces that had the power to regulate industries that are operating within their jurisdiction.

2:27 MS: So is alcohol a good model to kind of look at this at, in terms of how the powers break down?

2:32 CM: Alcohol is actually something where you know in the past, this is, this is a very similar history right, so we had sort of an attempt to have total federal prohibition and that wasn't very successful and so over time the federal government essentially, they came to this model where they had limited prohibitions and certain activities are prohibited but the provinces basically do a lot of the regulation in terms of setting up rules for who it is that can actually distribute alcohol, who can buy it, where the places that you can consume it, and a lot of that kind of model is how some of the provinces are actually thinking about rolling out their regimes for legalizing marijuana.

3:14 MS: So they’re kind of using alcohol as a template.

3:16 CM: Yeah, that's right because they sort of dealt with a lot of the issues around legalization in that context already.

3:24 MS So, I mean what happens? It seems like the federal government can decriminalize it, so it's not a crime to have marijuana anymore. But then the province is kind of responsible for saying who can sell it, and how they can sell, and to whom, can a promise, just say, no we're not going to let it be sold here?

3:40 CM: So there's you know there are some limits to the way that provinces and the federal government powers interact right. So the federal government has got the federal criminal law power and that essentially allows them to set up these prohibitions that are backed by penalties to serve sort of criminal public purposes. So it's not true that sort of anybody's gonna be able to buy marijuana right. So there are still strict prohibitions under the criminal code but what they've done is sort of carve out exemptions, okay. So there are exemptions now that allow people to sort of legally possess and consume marijuana as individuals up to a specified amount to, you know, have exceptions they can grow plants, but only again a source specified amount and so on right. The way federal criminal law works is it basically prohibits things and then it carved out exemptions. The exemptions you don't have a positive right to do something that's exempted from criminal law and so yeah provinces actually have a jurisdiction to regulate activity that isn't prohibited under criminal code.

4:51 MS: Right.

4:51 CM: So this is why there's sort of an, it's called an inherent double aspect to federal criminal law power, because we often have federal probations sitting side-by-side with provincial law that's actually regulating activity around things that are not prohibited. Or even things that are sort of prohibited, and it can sometimes look like provincial laws are actually stricter than the federal criminal law. So a good example is prohibitions of tobacco advertising, right. So there's a big piece of federal legislation that prohibits most of, most forms of advertising for tobacco products and that's been upheld by Supreme Court as valid criminal law. Saskatchewan actually brought in its own legislation also regulating the way that businesses could display information about tobacco products and they made it sort of stricter than the provincial, or then the federal criminal law, because they impose restrictions that essentially no information that was exempted from the criminal law could even be displayed in places where there were people under 18, so it was more restricted. But the court actually upheld that because essentially they were serving the same purposes and they have quite a strict idea of what is a conflict so as long you can comply with both, yeah provinces can actually be stricter about it.

6:15 MS: But it's kind of a one-way street, like other a province can be more strict than federal.

6:19 CM: A province can be more strict but they can't, so if there's a criminal prohibition on something, they can't legalize something that the federal criminal laws prohibited.

6:27 MS: Right.

6:28 CM: So yes so if the federal government says well you can have up to this amount for personal possession without it being criminal, provinces are stuck with that. They can't authorize something more than that under their provincial regulatory machines.

6:44 MS: So practically, what's going to happen in July 2018? Do the provinces have to kind of roll-out their law concurrent with this Bill becoming Law in the Federal Parliament? Or is there a bit of wiggle room for provinces to sort of keep figuring it out for a little while after becomes in the Canadian, at the Federal level?

7:03 CM: Okay so it's probably gonna be best for provinces to actually have their regulatory regimes ready to go at the same time that these exemptions to the criminal law come into force. If provinces don't have a regulatory regime ready, then the thing that can happen is essentially you have exemptions, things that are permitted, that are outside the scope of federal criminal law power that are just kind of unregulated at the provincial level, right. So it is a challenge and that's why you know one of the other important ideas about Canadian federalism is that it's kind of a cooperative model, so often, the 2 levels of government will try to work together to try to coordinate their strategies on things like a big legislative change like this, so most of the provinces are very busy right now consulting and coming up with their own strategies of exactly how they plan to put regulatory regimes in place.

8:07 MS: So can we expect to see, I mean, we've sort of mentioned alcohol before as a model but we can kind of expect across the board, something that's similar?

8:15 CM: I mean I think most provinces, yeah we'll have something that's quite similar and in part, that's partly a reflection of the fact that the pretty tight timeline right. So it's not an extensive period of time to come up with something completely new, because there are lots of important implications about exactly how you might legalize it right. So you know, the provinces are concerned about things like health effects, protecting you, you know, where are you actually gonna be able to use it, how do we regulate the industrial participants, you know. The federal criminal law has to be set up, the exemptions have to be set up, those regulatory provisions that allow companies to be exempt to produce enforcement schemes have to be put in place, so there's a lot of work to be done, and it makes sense to align it with regimes that track these other similar products, where we know there are some harmful effects that can come from using it, but they're not so severe that we want a model that just absolutely has it totally prohibited.

9:22 MS: Right.

9:23 CM: Yeah.

9:23 MS: But in summary, I mean it's basically the Federal - since at the Federal Level that that's where crime is kind of determined and defined, they can decriminalize it but it's up to the provinces to sort of set the structure in which it can be sold and controlled and used.

9:37 CM: Right. That's exactly right and that's how those two pieces fit together.

9:41 MS: Thanks Cherie.

9:42 CM: Yeah, you’re welcome.

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9:45 MS: Thanks to Cherie Metcalf. If you're interested in Constitutional Law, you may want to look into Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who's also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. If you like this podcast, rate and recommended it on iTunes. We appreciate it. Thanks for listening.

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Aboriginal Law? Indigenous Law? What’s the difference? There is one — and it’s huge! We unpack what the terminology means (and how we arrived at “Indigenous” as the preferred* term for pre-colonial North American peoples) in an in-depth discussion with Hugo Choquette, Queen’s Law professor and the developer of Law 202/702, Aboriginal Law, in the Certificate in Law program.

*kind of. It’s complicated! Listen to the episode.

Brought to you as always by the Queen's Certificate in Law, the only online legal certificate program in Canada taught by a law faculty, at takelaw.ca.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

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This week on Fundamentals of Canadian Law,the “Convict Code,” duress as a defense, and prison discipline — we’re joined by professor Lisa Kerr, a faculty member at Queen’s Law and the creator of the Criminal Law module of Law 201/701: Introduction to Canadian Law for the Queen’s Certificate in Law. We talk about a recent court case and how the “prison code” and the principle of duress as a defense factor into disciplinary decisions in prisons.

Brought to you as always by the Queen's Certificate in Law, the only online legal certificate program in Canada taught by a law faculty, at takelaw.ca.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

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Welcome to the new podcast Fundamentals of Canadian Law, a podcast covering any and all aspects of the law in Canada. For our first episode, we’re joined by Morgan Jarvis, Director of the Queen’s Business Law Clinic and the designer of an upcoming course on intellectual property for the Queen’s Certificate in Law. Trademark and intellectual property the strange case of B Rich, and a great opportunity to look at trademark law and a unique way of delivering a Cease and Desist.

Brought to you as always by the Queen's Certificate in Law, the only online legal certificate program in Canada taught by a law faculty, at takelaw.ca.

Enjoyed the podcast? You can find out more at takelaw.ca, sign up for our mailing list right here on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher and Google Play. Search for "Fundamentals" in your app of choice!

Transcript:

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00:08 Matt Shepherd: Welcome to Fundamentals of Canadian Law, a new podcast about the law in Canada that looks at aspects of Canadian law ranging from everything from trademark to property law, from family law to corporate governance. My name is Matt Shepherd, I'm a staff member at the faculty of law and one of many people working on the Queen certificate in law. A set of online undergraduate courses and the only online law certificate offered by a law school in Canada. For our first episode, we're joined by Morgan Jarvis. He's the director of the Queen's Business Law Clinic and the designer of an upcoming course in intellectual property for the Queen certificate in law. We're going to be looking at trademark and intellectual property through the lens of the case of B. Rich, a Canadian rapper who's given us an interesting way to look at trademark law and a very unique way of delivering a cease and desist order. This show is brought to you by the Queen's certificate in law. You could find out more about it @takelaw.ca. Let's talk to Morgan.

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01:12 MS: Talking to Morgan Jarvis. He is the director of the Queen's Business Law Clinic. He is currently developing an IP course for the certificate in law and has substantial experience in IP law. And we're talking about 'out for a sip', which is a recent video by B. Rich. The back story is, B. Rich is a rapper from southeastern Ontario. A few years back in 2013, he recorded a track called Out For A Rip and did phenomenally well, something like 11,12 million views on YouTube, and actually went through the process of trademarking the phrase 'out for a rip' with his lawyer. And then recently, Coca Cola released a number of specialty bottles with sort of musical phrases on them, including in Canada, 'out for a rip'. And he essentially called them out with the help of his lawyer, who is actually a graduate of Queen's law, Queen's Law of Six. To our knowledge, it's the first cease and desist that's ever been issued as a rap video. And this just raises a bunch of interesting questions about IP and trademarks and in how all of this works. So, I guess, my first question, Morgan, is can you trademark just kind of a catch phrase or a thing you say?

02:26 Morgan Jarvis: Yeah, that's pretty much it. As long as consumers out there in the market associate that phrase, or that name, or the logo, the sound. There's a lot of different things you can trademark. If people associate that with you, with your source, like you're the source of whatever good services are sold in association with that design, logo, name, phrase, then yeah, then it's your trademark and you can actually gain those rights just by using it out there in the market by coming up with your own logo, your own name, and selling goods in association with it and then showing that people have come to recognize that logo as you. Or to be a bit more cautious and forward thinking you can go ahead like B. Rich did and register something that you think is... That you are, in fact, using in association with your brand and connected with your goods and services, you register it. And then that's presumed to be a valid trademark 'cause it's gone through a year long, two year long process in the trademarks office where examiners have looked at it and looked at what's already out there and they said, "Okay, yeah. With what you're claiming here? You can have that trademark."

03:46 MS: So this is something you can and he did. You can actually file this. It's in a office somewhere, officially stamped and things.

03:52 MJ: It is. You can look... So it's CIPO.gc.ca. That's the Canadian Intellectual Property Office. You can look up the trademarks database that and you type in 'out for a rip' and it's the only trademark and it's there. Just like they showed in the video. It's registered in association, particularly with the music video, his music industry, but also with beer, what's he got? Beer steins and drinking cups and coffee mugs and things like that. Hats and T-shirts. So anything... 'cause he does have to actually use an association with those things. So presumably he has sold T-shirts and branded material like that with that 'out for a rip' on it. And so, I guess, it's poured in an argument that what could be applied against him is that 'out for a rip' is a phrase that was already out there and Coke could say that, "Well, you know what? We weren't using it as your trademark. We weren't really using it in association with some of the goods and services like as a logo that you've registered. We're using it as the phrase was always used. We're not trying to rip you off."

05:00 MS: But they've also done it in the context of a series of bottles that have musical stuff on them.

05:06 MJ: That's exactly it. I think that little... In the music video it shows the Coke label and has the little, the online video play logo in there with it and that really, I think, is the kinda trigger point that connects it with the services that B. Rich really is associated with and helps him argue that you know you are intentionally ripping off our mark.

05:34 MS: So getting back to something you said a bit earlier, he's got this trademark for a whole bunch of different stuff. But he actually has to do that stuff.

05:41 MJ: Yes, that's, yeah, exactly right.

05:43 MS: So if he says shirts, he has to make shirts and so on and so forth.

05:46 MJ: Yeah. So then that's part of it. When you say that someone's infringing your trademark, so they're off using your logo in association with goods and services which are the same or similar to yours, such that consumers out there are confusing the source of those goods so they see... Like he's basically arguing that the pop beverage bottle with his trademark on it, makes people think that pop is connected with him not with Coke. And then Coke, then alleges will know your mark is invalid because you actually aren't used to get an association with Pop beverages or whatever you've claimed. And things goes back and forth, like that whether he claims infringement they claim in validity or that they aren't otherwise aren't ripping off his mark.

06:45 MS: So that's probably... And we don't know yet, but that's probably what Coke is going to say is, No, it's not valid because we're using it in a very specific way that your trademark doesn't actually cover.

06:56 MJ: Yeah, most likely there. They certainly are gonna have a team of lawyers. And that's why I love what he's done here where he's gone straight to the court of public opinion because he's now going to Coke. He's talking to a world where it's just, it's losses and profits, it's not right and wrong. So if he sends his letter to the legal counsel and it sits in their pile and they just look at it. Here's this little guy is this really gonna cost us anything or can we just let this go away. But he puts it out there and gets million views on YouTube all of a sudden. This is going straight to Coke's consumers and they can choose and say, "This is wrong", or "no, this is okay".

07:36 MS: Right.

07:37 MJ: Which I think is brilliant and...

07:39 MS: So it's a bit of a big guy...

07:40 MJ: Kudos to that lawyer and to B. Rich clever guys brilliant billion video.

07:45 MS: Because it sets up a bit of sort of a big guy, little guy there.

07:48 MJ: Exactly, yeah, yeah, very clever stuff. And then they still put them with like slightly more traditional but very unorthodox cease and desist letter at the end, which is also very clever and gets the point across in a more traditional legal way.

08:05 MS: Could you look at... And we don't have it in front of us right now, but could we look at the cease and desist letter at the end? I know it's phrased in a fun way, but it seems to contain a lot of language in it that makes it seem very official at the same time.

08:18 MJ: That's exactly right. He does manage to make it pretty clever and funny while still covering what needs to be said that by August 1st, we need to hear from you, otherwise you need to stop reproducing our mark on your goods and services because you are causing consumer confusion, you're infringing our trademark rights. So...

08:39 MS: And is that all Coke needs to do is just to stop?

08:43 MJ: That's kind of when you go and sue someone for trademark infringement then it becomes a question of damages. So, how do they really, really gain from using their trademark. It tends to get hard to prove and the logical first step is just an injunction and you'll file that in emotion before the main trial happens right away. You'll try and get injunction and that means where the court tells them to stop doing whatever they're doing to prevent further damage and then we'll deal with the issue of whether they've actually infringed the trademark and caused damages, later. But for now, we wanna get an injunction and stop you from doing that. So that's what he's asked for in that letter.

09:27 MS: So can there be a component of personal image in a trademark claim? If you would say B. Rich hates sugar and caffeine and just... I want in no way to be associated with the drink Coca-Cola 'cause it's got sugar and caffeine in it. Can he claim that it's damaged him somehow with them doing that?

09:47 MJ: I don't know if that would be so much be under the area of trademarks, but I'm not up on this area, but I've kind of been warning with this video. If they might also been claiming a misappropriation of personality like when you're into this area of celebrities and that kind of thing, and associating. Maybe they can successfully argue that they aren't really infringing his trademark but he may be able to successfully argue that that phrase is associated with me regardless of whether you think it's a valid trademark or not. And it's a misappropriation of my personality and associating me with that and saying that I'm endorsing Coke when I'm not. And again, I'm a non-expert in that area, so I don't know what the appropriate claims are but I think there may be something there as well, for sure.

10:40 MS: So what happens next in these sorts of claims?

10:46 MJ: Again, how he's put it out there, it's pretty clever 'cause it does demand a more rapid response because everybody knows this is an issue and it's gone straight to their pocket in terms of consumers and their choices. So I think it will probably get some kind of a response that's faster than you would normally see, 'cause if it's just a letter sitting on the General Counsel's desk, would probably not actually gonna get replied to in time. You often don't bother replying by the August 1st deadline, 'cause then the next step for the person claiming infringements to actually serve them with a statement of claim to go to court. And it's like they're gonna delay a little bit on doing that. And then the other, the statement of defense, their side of defense and it's this multi-year long process, so it would be much. It's much smarter this way where they're more likely to say, "You know what, we don't wanna deal with this, we don't want the negative impact on the Coca-Cola brand and all this kind of bad, bad attention is causing positive attention for B. Rich, negative attention for Coca-Cola.

11:54 MS: Right.

11:54 MJ: And we're gonna settle this and make either stop using it or give him some licensing money and come to a licensing arrangement as B. Rich's lawyer was saying they should've done it the first place in that video.

12:10 MS: So, just another thing I'm kind of curious with the video is he makes, B. Rich the rapper, has a list of fairly silly demands at the end. You know, he wants a new paint job for his track and sports tickets and skates and so on, and so forth. But then at the end of the video, really, the only legal kind of binding thing is you need to stop by August 1st. So, what he's rapping is kind of the things he'd like aren't really something that's being asked, it's just kind of fun.

12:39 MJ: Well, I mean, so, a settlement or a license to it is like any other contract where you agree to the consideration the value that you're giving in exchange for some right from someone else. So, in the case of IP patents trademarks, copyright, the owner, the author, the creative inventor has a monopoly right over that the subject matter that they've managed to successfully gain rights in and then they can license that to others, they can allow other people in either a very full or very restricted way, allow people to have use of those rights, which they have by statute in Canada and other countries. Hence then, so you do that in a licensing agreement and the consideration, the exchange for those rights. So, the right to reproduce his logo on their beverage bottles would be a truck load of coke on his front lawn, tickets to the Maple Leafs. And the other thing he was asking for there, he could. I think what he's kind of presenting there is a consideration for a license.

13:51 MS: Oh... So, we've just dict-ed the contract all the way too.

13:57 MJ: With IP it so connected, because of the way you monetize IP aside from using yourself is, is to license it to others absolutely.

14:07 MS: Fantastic. Is there anything else we haven't covered, kind of on the issue that you want to address?

14:14 MJ: No, just that the trade marks are a lot of fun and they become even more fun when people start rapping about them, especially guys as clever as these guys and Queen's grads, brilliant stuff.

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14:34 MS: Thanks for listening to the first episode of Fundamentals in Canadian law and thanks to Morgan Jarvis for joining us, he's the director of our Business Law Clinic. Queen's Business Law Clinic in downtown Kingston, Ontario and also the developer of an upcoming course on intellectual property for the Queen's certificate in law. You could find out more about the certificate in law by visiting www.takelaw.ca this show is produced at Queen's University, which is situated on traditional Anishinaabe and Haudenosaunee Territory. For more information about the Queen's University faculty of law visit law.queensu.ca. Thanks for listening.

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Students who have taken Law 201/701 are familiar with Professor Lisa Kerr through her Criminal Law module in the course. The CBC’s Sunday Editionrecently gave her an opportunity to explore some of the issues that are covered in passing in her criminal law overview. Michael Enright interviews Dr. Kerr in a 30-plus minute exploration of prison law, sentencing, and issues with how sentencing is currently managed in Canada. You can listen to the full audio of this interview here: