Saint, Stouts and Statutes: St. Patrick’s Day through a Legal Lens

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.

St. Patrick's Justice

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.

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

Transcript:

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.

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.

A look inside solitary (and the promise of reform)

Solitary BreakSolitary! 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.

 

 

TRANSCRIPT

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 [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.ca.

The Trans Mountain Pipeline Decision

PipelineFollowing 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.

Federal/Provincial Power and Pot: how Constitutional distribution of power affects deregulation

Federalism and the Division of Powers

Federal and Provincial Division of Powers

The Canadian Constitution divides powers around many issues of national scope — like marijuana — between the federal government and the provinces. Art: Valérie Desrochers, vdesrochers.com

Canada has a federal system of government. What this means is that the ability to enact laws is divided among different governments. There are three main types of governments in Canada; Indigenous peoples exercising self-governance rights, the federal government and provincial governments.

The Canadian constitution explicitly sets out and distributes the powers held by the federal parliament and the provincial legislatures. Territorial governments exercise powers delegated by the federal parliament, and municipal governments exercise powers delegated by the provincial or territorial legislatures. These government’s authority to make laws is therefore either derived directly from the Constitution Act, 1867, or is delegated to it from a government that received its authority from the Constitution.

What laws can each level of government make? The subjects of the laws that a government can make are limited.

Section 91 of the Constitution sets out the subject matter of laws that the federal parliament can make.

Section 92 sets out the subject matter of laws that provincial legislatures can make.

For example, section 91 gives the federal parliament the authority to make laws regarding such matters as criminal law, unemployment insurance, trade and commerce, currency, copyrights and patents, and the census. The federal government also has some general power to enact laws that are of national importance to “peace, order and good governance” in Canada. In contrast, section 92 gives the provincial legislatures the authority to make laws regarding the establishment and management of hospitals, the administration of the courts, property and civil rights in the province, provincial lands, and generally any other all matters of a “merely local or private nature” in the province, among others.

However, in practice the law that is needed to regulate an activity often does not fall neatly into one category. Federal and provincial laws often work together. Consider, for example, the recent case of marijuana legalization.

The federal government has the jurisdiction to make criminal laws. Therefore, federal parliament that had to pass the Cannabis Act, which amends many other federal acts to make cannabis legal but sets out new laws related to the possession by and distribution to persons under 18 years of age and criminalized certain types of advertisement and sale of cannabis products, among others.

However, the provincial governments have jurisdiction over property and civil rights in the province. These powers are expansive and encompass the law not just of real and personal property, contract, and tort, but also of labour relations, workplace standards, human rights, environmental protection, insurance, the regulation of trades and professions, consumer protection, social assistance and welfare benefits, wills and estates, and zoning and land-use planning—among many other areas.  The provinces therefore have jurisdiction over how to regulate the production, distribution and retail sale of cannabis within their own province.

While all Canadians will be subject to the same criminal laws with respect to cannabis, how you purchase cannabis will likely vary widely based on the province you are in. For example, Alberta’s legislation provides that cannabis products can be purchased at privately-run retail stores and government-operated online sales, while in Ontario purchases will have to be made through government-operated storefronts and online sales. British Columbia sees a mix of both models, with sales being available at both government and privately-run storefronts and online sales.

There is more complex case law, where matters do not clearly fall within any of the enumerated subject matters allocated either to Parliament or the provinces, or where a law may touch on multiple heads of power. But this brief summary should help provide a basic understanding of the division of power in the Canadian legislative landscape.

You Don’t Really Own “Your” Land – Fundamentals of Canadian Law 10

Bayeux tapestry - Norman invasion of England

What does William the Conqueror have to do with property law in Canada? A lot! Find out more in this podcast.

Property law is complex — fee simple, escheats, and William the Conqueror all come into play when we’re talking about ownership of property in Canada. Fortunately, the Dean of Queen’s Law, Bill Flanagan, took some time out of a busy schedule to drop by and shed some light on both the laws governing land, and the “finders keepers” principle of personal property.

Join us for a fascinating conversation about history, the Crown, property ownership, playground rhymes, and more!

What Did I Agree To? Contracts in our Everyday Lives

Contracts govern many aspects of our day-to-day lives—they are one of the fundamental ways that society is ordered. You likely engage in dozens of activities governed by contract every day, usually without considering the legal relationships you are entering into and engaging in.

At its most fundamental level, a contract is an agreement that will be enforced because it represents the communication of a commitment to engage in a reciprocal measured exchange – in other words, the exchange of valuable promises that in turn create obligations to do or not do something.

Contracts are everywhere!Communication and exchange are central to the formation of a contract. For a contract to be formed there must be offer and acceptance, and there must be consideration (something of value must be exchanged… contracts are not the same as gratuitous promises, where one of the parties receives no benefit of value).

While there are many more rules that relate to when and how contracts are formed this basic definition can help us understand when we might enter into a contract.

In this post we will discuss some everyday activities you likely engage in, and their contractual nature.

We can consider a few examples from my day today:

The first thing I did when I woke up was to check my phone and respond to emails. I have a contract with my phone company—in consideration for me paying a certain fee every month, they provided me with a phone, as well as with access to their cell towers. I accepted this offer when I signed my phone contract and began using their service.

When I checked my email account, I was in a contractual relationship with Google. When I send or receive content through a Google Service I give Google and its affiliates a worldwide license to use that content for certain purposes, per the Google Terms of Service. As consideration for those licences, Google provides me with access to its Services. Google offers these services publicly and I enter into a contract by creating an account and agreeing to the Google Terms of Service.

Dealing with email is hungry work, so I decided to grab breakfast at a campus coffee shop. I ordered a bagel and a large tea. The cashier told me that the total would be $5.05, which I paid in cash. Two minutes later I was handed a bagel and a large tea.

When I handed the cashier the money, I entered into a contract with the coffee shop. As consideration for a bagel and a large tea, I provided $5.05. I communicated my acceptance of their posted offer to provide tea and a bagel for $5.05 by ordering from the cashier and providing money. They fulfilled the terms of the contract by providing me with my food and beverage.

As you’ve seen, contracts have already been a part of just the very beginning of my day. Take a minute to think about your day so far: what have you done that has involved an offer, acceptance, and consideration? How many contracts have been involved with in the past hour? Can you think of one or more contracts that are allowing you to read these worlds right now?

Contracts are central to the ordering, not only of big businesses, but our everyday lives.

– Isabelle Crew

Be a Court Case Detective – Fundamentals of Canadian Law 007

Detective in a computer

You, too, can be a court sleuth — thanks to CanLII and the expert guidance of professor Mary Jo Maur!

Dive into the amazing world of case research with professor Mary Jo Maur, developer and instructor of Law 201/701 — Introduction to Canadian Law in this edition of the podcast! We plunge into the amazing world of CanLII, a Canadian online database that collects court decisions from across the nation, with a dizzying array of search options and ways to find exactly the information you’re looking for.

It’s pretty amazing! Mary Jo walks us through how to find almost anything related to court outcomes on CanLII, and also some valuable pointers on how to read the cases once you find them. If you’ve ever wanted to know — well, anything — about court cases and outcomes from coast to coast, this is 20-odd minutes you won’t regret spending with us.

Presumed Innocent: Fundamentals of Canadian Law Podcast 005

We’re joined once again by Queen’s Law professor, and developer of the Law 201/701 Criminal Law module, Lisa Kerr. The topic: presumption of innocence. Why is it the bedrock of our criminal justice system? How does it level the playing field of one person versus all of society? And… is it really as venerable and ancient a principle as we think it is? Lisa joins us via Skype from New York to talk about all of this, and more!

The Brains and Brawn of Criminal Law: Mens Rea and Actus Reus

Robber is thinking of profit from robbery. Word balloon from Freepix.At the most fundamental level, criminal law is based around a single Latin phrase: “Actus non facit reum nisi mens sit rea”, which translates to “an act does not make a person guilty unless the mind is also guilty”. This means that a crime consists of two elements: the commission of a guilty act, known as actus reus, and the presence of a guilty mind, known as mens rea.

For example, section 322 of the Criminal Code defines theft as follows:

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it…

We can see there are both actus reus and mens rea elements of this offence. The actus reus of theft is taking something without colour of right (something that isn’t yours), the mens rea is intending to deprive the owner of the thing taken.

Actus Reus

For actus reus to be made out there must be a voluntary commission of an unlawful act.  All actions are presumed to be voluntary, but the defence can argue that there was no actus reus because the defendant had no voluntary control of his or her actions. This was the case in R v Parks, where the accused presented evidence that he was sleepwalking at the time he killed his mother and father in law. The Supreme Court of Canada upheld Mr. Park’s acquittal on the basis that he was not acting voluntarily.

Additionally, where the offence charged includes the occurrence of specific result, the fact that those consequences occurred is another element of actus reus. For example, section 222(1) of the Criminal Code provides that “A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.” Causing death is therefore a necessary requirement for the actus reus of homicide. In determining causation the question we ask is, whether, but for the actions of the accused, would the result have happened?

Mens Rea

Courts presume that criminal offences require some form of subjective mens rea—intent, knowledge, recklessness, or willful blindness—in relation to all aspects of the actus reus unless Parliament clearly indicates otherwise.

For some offences, Parliament has indicated that mens rea is not required. These are known as strict liability offences. For a strict liability offence it is not necessary for the Crown to prove the existence of mens rea—the act itself is the entire offence. If charged with a strict liability offence, the accused may advance the offence that they took all reasonable steps to avoid the act. An absolutely liability offence is similar, but the accused is not able to advance a defence of this nature.

So when you’re wondering if something is a crime, start with “brains and brawn,” and ask yourself if criminal intent and criminal action were both present. As we’ve seen, there are exceptions, but it’s a reasonable place to start.

– Isabelle Crew (3L, Faculty of Law, Queen’s University)

Thought balloon in illustration courtesy Freepik.

Marijuana Legalization and the Federal-Provincial Relationship: Fundamentals of Canadian Law Podcast 004

We all know that 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 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 — to find out more about the only online certificate in law offered in Canada by a law faculty, visit http://takelaw.ca.