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.




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




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.


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.


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.


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.


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.

What’s in a name? Deciphering the secret world of “Styles of Cause”

Chances are you’ve seen or heard the name of a legal case. Lawyers call this the “style of cause.” Once you’ve cracked the code for a style of cause, there’s a lot of information in one short title!

Format: A v B

Styles of cause are formatted in the same basic form:

Name of Plaintiff v Name of Defendant/ Respondent

The plaintiff is the person bringing the case before the court. The defendant/respondent is the person who must defend the charge or respond to the claim. Where there are multiple plaintiffs and/or defendants, the name of the first plaintiff and defendant, respectively, will be used.

Illustration of styles of cause.

What do names mean?

A natural person (an individual human, rather than a private or public organization) is represented in a style of cause by their last name. Therefore, If Bill Smith is suing Bob Jones, the style of cause will be Smith v Jones.

Corporations are also legal persons. In a style of cause a corporation is represented by its official corporate name. Therefore, if General Motors is suing City National Leasing, the style of cause will be General Motors of Canada Ltd v City National Leasing.

Other types of legal persons can also bring and respond to legal cases and will represented by their official names. These types of legal persons include non-governmental organizations, First Nations, Crown Corporations, etc.

“R” stands for Crime (sort of)

In a criminal case, the person bringing the case is the Crown. In a criminal case the name of the “plaintiff” is represented by the letter R—this is short for Regina (Queen) or Rex (King). Therefore, if John Brown is being charged with a criminal offence, the style of cause will be R v Brown.

…but the government is more than “R”!

R is not the only way to represent a government entity in a style of cause. Cases can also be brought by or against a government entity in the form of challenging the constitutionality of law or a decision made by the government entity. For example, if Terri Jean Bedford is challenging the constitutionality of a federal law, she will bring the claim against Canada, as represented by the Attorney General. The style of cause will be Bedford v Canada (Attorney General). If Grassy Narrows First Nation brings a case challenging the decision of the Ontario Ministry of Natural Resources, the style of cause will be Grassy Narrows First Nation v Ontario (Natural Resources).

Don’t say “vee!”

In Canada, the “v” separating the two parties is not pronounced “vee” when speaking. We just say “and”. Americans say “vee”, and you’ve probably heard this on TV, but avoid a rookie mistake in Canada and say “and” when dividing the names of parties to a proceeding!

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

Presumed Innocent: Fundamentals of Canadian Law Podcast 005

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

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

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

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

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

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

Actus Reus

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

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

Mens Rea

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

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

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

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

Thought balloon in illustration courtesy Freepik.