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.

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 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.

Coats, Crooks and Compensation

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.

A Supreme Farewell to Victim Surcharges


Victim surcharges are “cruel and unusual,” per the Supreme Court. Illustration: Val Désrochers.

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.

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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.

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.

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.

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.

Unpacking pipeline challenges: Fundamentals of Canadian Law Episode 11

Oil Pipeline

The Kinder Morgan / Government of Canada pipeline is being challenged by both provinces and Indigenous groups. What laws pertain to these challenges?

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

Tsleil-Waututh Nation Assessment of the Trans-Mountain Pipeline: https://cdn2.hubspot.net/hubfs/2551008/TWN%20Assessment%20Report%2011×17.pdf

 

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]

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 Kind of Property Rights Can I Hold?

Property as a legal concept is best understood not as an object, but as a bundle of rights that a legal person possesses. The pertinent legal question isn’t what you “own” but what you have the right to do with it. We are going to focus on “real property”, which is a type of property that is associated with land and things that are attached to it (e.g. a house). The law on this is different from “personal property”, which is property not attached to land—like your laptop.

You can have many different types of interest in real property. They are different not because the type of property is different (e.g. house versus farm), but because of what the person who holds the property has the legal right to do. There are many different rights that attach to real property interests—they are wide ranging and will vary depending on the nature of the proprietary interest.

Fee Simple

The most basic kind of proprietary interest is an interest in fee simple—this is what most people are referring to when they say they “own” a house, a cottage, or a farm.

Cottag with for sale sign

“Owning” property in Canada actually means having certain rights over it. Your grandpa’s cottage is governed by the rights your grandpa has over that property…

A fee simple estate is the highest and most complete interest in the land that can be recognized by law. The owner of the fee simple estate can exercise all rights of ownership over the land infinitely.

For example, my great-grandfather owned a cottage on a piece of land up near Algonquin Park. In legal terms, what he had was a fee simple estate.

With the fee simple estate, he had a bundle of rights. For example, he held the right to:

  • Occupy the property;
  • Exclude others from the property;
  • Sell the property;
  • Rent the property (we will discuss leaseholds and residential tenancy in another post);
  • Divide the property into smaller fee simple estates;
  • Destroy the property;
  • Use the property as security, for example, by taking out a second mortgage; and
  • Will the property to his children after he died.

Unless he granted anyone else any rights, he was the only person who held these rights. His rights under fee simple were complete and indefinite.

In 2005, he passed away. What happened to his fee simple interest in that land and cottage after that? A fee simple interest has no end date— it is indefinite, meaning that it survives even after a person dies, which means that it can be willed to another person who will possess all the same rights. Even where a fee simple estate is not willed, it still exists and descends intestate to the owner’s heirs—again, this is because it is indefinite.

My great-grandfather willed the property to my great-uncle, who decided to sell it. When he sold the property, he sold the fee simple—he didn’t just sell the cottage and the land, he sold all the rights that attached to it. Because the fee simple is absolute, it means that he no longer held any rights to the property.

This is just fee simple, we’ll look at other property rights in future posts!

— Isabelle Crew, Queen’s Law’18

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.