Who is this

man?

What’s at issue?

Thursday, November 4, 2010

Media Advisory: First Nations from Tar Sands, Ottawa

Media Advisory - First Nations Representatives

from Tar Sands impacted regions,

meet with Members of European Parliament in Ottawa

OTTAWA -- On Friday, November 5, 2010, the Indigenous Environmental Network will be hosting a meeting with Members of the European Parliament (MEPs) and First Nations representatives from various Tar Sands impacted communities followed by a press conference at the Charles Lynch press room at the federal Parliament Building at 10 am.

... First Nations representatives will meet with the EU representatives to discuss Indigenous rights violations in their communities as a result of the world's largest and most destructive development known as Canada's Tar Sands and the impacts of the current proposed EU Fuel Quality Directive.

Source: http://censored-news.blogspot.com/2010/11/media-advisory-first-nations-from-tar.html

In the news today...• A University of Calgary graduate student, Mr. Devine, a married father of four who has

became the face of Calgary’s anti-racism movement was attacked--viciously beaten with a bat and a hammer, among other weapons, police say--inside his home early Monday morning, the fifth and most violent incident where the man has been targeted.

• Police say the Devines were “100 per cent targeted.” The couple, who are both white, are the only members of Anti-Racist Action Calgary – a grassroots group that identifies Calgary’s neo-Nazis on a blog

• Calgary has struggled to ward off its neo-Nazi movement, which flourished amid the economic boom. Two years ago, an anti-racism march organized by Mr. Devine clashed with white supremacists who showed up. A similar march this year was more tame. A white supremacist was arrested last year after a makeshift bomb was found outside another city home.

• There are a handful of key local supremacy groups. One called the Aryan Guard once offered to subsidize supporters who moved to Calgary. Its founders are among the people police want to question in Mr. Devine’s attack.– That group claims to have disbanded, although Mr. Devine said it was simply

rolled into Blood and Honour, a militaristic group with a website pledging its dedication to the “preservation of European cultural identity” and ties to other prominent white power organizations.

Source: http://www.theglobeandmail.com/news/national/prairies/calgary-anti-racism-activist-beaten-blames-neo-nazis-for-targeted-attack/article1790914/

Globe and Mail Editorial this past Saturday...

``Unlike the United States, where there is at least an admission of

the fact that racism exists and has a history,

in this country one is faced with a stupefying innocence.``

— Dionne BrandBread Out of Stone, by Dionne

Brand, Coach House Press, RandomHouse.ca | 1994

A New Precedent

• Shayne Howe, the only black man in the tiny Nova Scotia community of Poplar Grove.

• For him, “the burning cross on his yard was a devastatingly clear warning: Get out of our town.” Globe and Mail, OLIVER MOORE,

N.S. man convicted of inciting racial hatred in cross-burning, Friday, Nov. 05, 2010

Who is the first person

in Canada convicted of a hate crime

for burning a cross, KKK-style?– Justin Rehberg

• Did Provincial Court Judge Claudine MacDonald create the right precedent?

• In this “age of communications...a cross-burning won’t stay on a front lawn in Nova Scotia. They will go around the world and might expose the victims, or members of their identifiable group, to further threats from the lunatic fringe.... did not egg his cousin’s car (which we are not advocating and which would not be news). The fact is, Rehberg did not egg his cousin’s car. He egged on racial hatred.” The Chronicle Herald

Globe EditorialPunishing cross-burning stops the fire next time

From Saturday's Globe and Mail Published Friday, Nov. 05, 2010 7:30PM EDT

http://www.theglobeandmail.com/news/opinions/editorials/punishing-cross-burning-stops-the-fire-next-time/article1787852/

``The burning of a two-metre cross on the lawn of a bi-racial

family in rural Nova Scotia last year

was an act of intimidation verging on terrorism.

It is important that Canadian justice recognize its viciousness, and not simply penalize it under the bland catch-all “criminal harassment.”

Provincial Court Judge Claudine MacDonald was right to declare it an illegal incitement of hatred, and to find 20-year-old Justin Rehberg guilty

as charged.

This newspaper has argued that offensive and disgusting opinions, including deeply racist ones, should not be criminalized under anti-hate

laws, because those laws may silence legitimate debate and because the best way to deal with offensive views is to trounce them in the public square. But we draw the line at expression that promotes violence.``

``Mr. Rehberg's defence – that his burning cross did not actually incite people to commit other hateful acts – is unpersuasive. Should Canadian law wait for a lynching before deciding that the act is illegal incitement? When the state, on behalf of the community, takes a strong

position against cross-burnings and other acts of express intimidation against minorities, violence may be deterred. That is the point: the protection of minorities

and, more broadly, the non-violent expression of views, two touchstones of Canadian democracy.``

Globe EditorialFrom Saturday's Globe and Mail

Published Friday, Nov. 05, 2010 7:30PM EDT

http://www.theglobeandmail.com/news/opinions/editorials/punishing-cross-burning-stops-the-fire-next-time/article1787852/

“Rocky” Jones, lawyer, a long-time civil rights activist & a fifth-generation African Nova Scotian

• News about the cross burning in Hants County did not shock the old civil rights agitator. He says the province’s roots, intertwined as they are with the United Empire Loyalists who fled north in the 1780s with about 1,200 slaves and 3,000 free blacks in tow, were tainted by racism almost from the beginning.

• Rural communities where black lived separate from white, and often still do, sprouted with the arrival of the loyalists. Hardened attitudes about race persisted.

• Public schools were segregated until the 1950s. (The last Nova Scotia school to integrate was in 1983). Africville was bulldozed in the 1960s. Cemeteries were segregated until the 1970s. Now, it is racial brawls in high schools, allegations of racial profiling by Halifax police, the torching of the Black Loyalist Heritage Society in Shelburne and a burning cross on a lawn in Poplar Grove in 2010.

• Mr. Jones points to Hants County, scene of the latest crime, as being symptomatic of Nova Scotia’s schizophrenia around race.

• The county recently erected a plaque dedicated to William Hall, a local war hero, and the first black man to receive the Victoria Cross. Mr. Hall’s image has appeared on Canadian stamps.

• “How is it possible then, to have a society that reveres a man, acknowledges his race, erects a plaque to him, and at the same time have these bozos growing up in the same area with these weird attitudes?” says Mr. Jones.

• Burning cross on N.S. interracial couple’s lawn still ‘mind-blowing’ months later, By Joe O’Connor,

National Post, November 5, 2010, http://www.vancouversun.com/story_print.html?id=3779805&sponsor=

Law Prof, Dal, Carol Aylward• My response to Globe and Mail reporter Oliver Moore was to say that “the cross-burning is

just an open sign of what is under the surface.” I also noted that “most people in the black community call Nova Scotia the Mississippi of the North.”

• many “individual” incidents of racism in Nova Scotia• to name just a few:

– the burning to the ground of the Black Loyalist Society in Shelburne...in 2006;• Read more: http://www.thecoast.ca/halifax/celebrating-our-story-at-last/Content?oid=1536402

– the attempted firebombing of the offices of the Black Cultural Society in North Preston; – the racial profiling of football star Kirk Johnston and other black community members by Halifax

Regional Police; – the racial violence at Cole Harbour High School;

• Note: watch Nova Scotia filmmaker Sylvia D. Hamilton’s The Little Black School House. – The film unearths the little known story of the children, women and men

who studied and taught at Canada’s racially segregated Black schools.

It is a poignant and unfailingly honest evocation of the struggle of African Canadians

to achieve dignity and equality through education.

– Fracas--White Halifax Regional Police officers & black youth in Digby; – the complaints of racism and systemic discrimination against the Halifax Regional Police Service

and Halifax Regional Municipality by black police officers; – the complaints of racism and systemic discrimination by 15-plus black firefighters against the Halifax

Fire Department; – or the complaint of racism and racial discrimination against Dalhousie University and Dalhousie Law

School (now Schulich School of Law) by this black law professor.– Source: Mar 05 2010 http://www.themarknews.com/articles/1070-nova-scotia-mississippi-of-the-north

Aylward, cont`d• talking about these “individual” incidences begs the question of the existence of

systemic racism in Nova Scotia. Indeed, the idea that the province is the “Mississippi of the North” must be understood in a systemic context. And this context, unlike the focus on “individual” incidents, does not avoid dealing with the wider issue of racism.

• In the case of R.D.S. v. The Queen, the Supreme Court of Canada explicitly recognized the importance of social context in understanding racism and stated that a “reasonable person must be taken to be aware of the history of discrimination faced by disadvantaged groups in Canadian society.” The Supreme Court also recognized that the reasonable person is “not only a member of the wider Canadian community, but a member of a local community.” Such a person, the justices contended, must “be taken to possess knowledge of the local population and its racial dynamics, including the existence in the community of a history of widespread and systemic discrimination against black and Aboriginal people.” [Emphasis added]

• We must not limit our view of racism and discrimination against African Nova Scotians to contemporary incidents. If we want to fully understand it, we must also take into consideration the colonial history of Canada and the impact of that history on present day realities. This includes the dispossession of First Nations peoples and the enslavement of blacks. It is only through an understanding of colonial history that so-called “post-colonial” manifestations of racism can be understood.

The first African Canadian to...

•

•

I myself experienced racism as a young boy, growing up in Toronto's East End. I have no doubt that my

boyhood passion got the best of me on more than one occasion. I reacted strongly to the hurtful name-calling that I faced simply because I was a kid of a different

colour. Later on, I also experienced racism when I was refused service in a restaurant, even though I was

wearing my Royal Canadian Air Force uniform. I also faced discrimination when seeking employment after graduation from McMaster University, and as a law

student at Osgoode Hall. I was fortunate that the Dean of the law school didn't

fail me after I challenged him for making racist remarks. But others may not have been so lucky.

Former Lieut. Gov. Lincoln AlexanderThe Honourable Lincoln M. Alexander, Chair of the Canadian Race Relations Foundation

March 3, 2000Black Cultural Centre for Nova Scotia, Dartmouth, Nova Scotia

Source: http://www.crr.ca/content/view/67/401/lang,english/

A few years ago, I came across a poem by Grace Jefferies, a former student at Cole Harbour District High School.

Grace wrote:

The fear washes through my veinsContaminating the deep red blood.

It travels through my body,Further, deeper.

The rage heats my skinIgniting a blazing fire It burns my brown skin,

Heating, hurtingThe sadness flows through me

Touching my heart in the most sensitive placesIt brings tears to my eyes

As the wall of racism,Slams against my face.

Source: http://www.crr.ca/content/view/67/401/lang,english/

That is the devastating effect of racism. Racism hurts deeply. It is stupid, non-productive, and dangerous. It hurts our young. And ultimately it hurts our cities, provinces, and country. Racism and racial discrimination are ripping holes in the fabric of our society,

and our education system is not immune to it.

To eliminate the impact of racism, Canada has already legislated positive change through the Charter of Rights and Freedoms, the Canadian Human Rights Act, the Canadian Multiculturalism Act,

and various provincial human rights codes.

Yet, racism and racial discrimination continue to be deeply ingrained in our thinking and behaviour. Racism exists in our

institutions, in prejudicial attitudes, and in the stereotypes some people accept regarding non-white groups.

Legislation can act as a catalyst for change, but in the long run, reducing racism in Canada ultimately

requires more than equal-rights legislation.

Quotation from a speech by Lincoln Alexander

Source: http://www.crr.ca/content/view/67/401/lang,english/

Who is Canada`s Rosa Parks...?

International Human Rights DayCelebrating Unity in Our Communities!

Date: Friday, December 10th, 2010

Time: 9:00 a.m. –12:00 noon

Place: North Preston Community Centre44 Simmons Road

North Preston, Nova Scotia

Join us in celebrating human rightsacross the province

and positive change in our communities!

A free community breakfast will be provided.Please contact Ann Divine with questions at

902-424-7356 or divineao@gov.ns.ca

Remarks of the Right Honourable Beverley McLachlin P.C., Chief Justice of Canada

The Challenge of Fighting Terrorism While Maintaining our Civil Liberties

• One of the most destructive effects of terrorism is its ability to provoke responses that undermine the fundamental democratic values upon which democratic nations are built.

• It is also clear, however, that it would be equally disastrous to jettison our liberties in the name of fighting terrorism. That too would constitute loss of the fight against terrorism.

• Our only option is to fight terrorism while maintaining our constitutional rights and freedoms to the maximum extent possible.

• Read the full text: http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm2009-09-22-eng.asp

What is the annual salary of the SC Chief Justice?

$278,400

• The Charter guarantees to every person — not just citizens — liberty, mobility, freedom of expression and religion, and basic criminal law procedural protections like the presumption of innocence.

• Rights, it states in s.1 are:

– subject only [and the “only” is important] to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

• The single big idea driving s. 1 is that limits on rights must be justified as proportionate. Proportionality means a fair and justified balance between the exercise of a guaranteed right and a broad conflicting public goal. ...And when Canadians challenge the balance that has been struck, the courts’ role is to review the balance that Parliament or the executive has reached, between rights on the one hand and fighting terrorism on the other.

• Read the full text: http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm2009-09-22-eng.asp

ConstitutionsA constitution is a set of the most

fundamental rules by which a community organizes and

governs itself. Those rules tell who has what rights and powers and how things should be done. They tell us—and others—what

to expect of our government.

Federalism & the Judiciary

9 November 2010

Federal System

• While deciding what system to use in Canada, the Federal System seemed the best choice.

• Under a Federal System, the responsibilities for governing were divided between two levels of government, the central government and the provincial government.

• Each government had their own jurisdictions but the Feds could override a provincial law if it was seen as not in the best interest of all Canadians.

Sec 91 & Sec 92

• Section 91 of the BNA act outlined the federal government’s powers, usually matters that applied to everyone, such as postal service or currency.

• Section 92 outlined the provincial governments powers, such as education.

• Provinces delegated their responsibilities to municipal governments for local matters.

Federal and Provincial

• Banking• Foreign affairs• Criminal Law• Public debt• Defence• Trade and commerce• Postal service• Penitentiaries

• Education• Health care• Labor and Trade

unions• Property and civil

rights• Compensation to

injured workers• Marriage

Doctrine of Ultra Vires

• Government may make laws only in its own jurisdiction.– Called Intra Vires, within the power of

government to pass laws.

• If a government attempts to pass laws beyond or outside of its jurisdiction it would be said to be Ultra Vires, beyond the power of government to pass laws.

Review: Government and Law-making

• The executive branch of government is responsible for carrying out the government’s plans and policies.– It consists of the Prime Minister, the Cabinet and the

public or civil service.– Members of cabinet are elected representatives

appointed by the Prime Minister to positions of responsibility.

• The executive branch at the provincial level works much the same way.

Review: The Legislative Branch

• Refers to the branch of government that has the power to make, change and repeal laws.

– Federally, this is the House of Commons and the Senate.

– Provincially, it the Legislative Assembly.

• The Governor General and the Lieutenant Governor are appointed to represent the Queen.

The Judiciary

• The branch of government responsible for presiding over Canada’s court system.

• It is independent of the other two branches.• Made up of judges who adjudicate disputes,

interpret the law and decide on punishments.• Apolitical and independent!• Highest court is the Supreme Court of Canada.

Why are we concerned about the role of the judiciary in federalism?

• In a federation, there will be a need for a final arbiter in a dispute over which level of government has the power to act in a particular case

• The judiciary is appropriate choice for this final arbiter provided that it has the following characterisctics: – legitimacy; – impartiality; – operates with procedural and legal guarantees to ensure

that it can and will continue act with these qualities.

Legitimacy & Federalism

• The primary role of a tribunal is to be the Guardian of the Constitution– to be in a position to the fiduciary of all the

hopes, the compromises of the different groups that came together to unite in a federal state.

• People and government must respect the decisions of the courts.

Impartiality

• Impartiality is what confers legitimacy

• However, impartiality is not to have no opinions or no identity but rather to have an open mind to hear and understand the arguments of all parties.

Legitimacy is earned

• Responsiblity of the government and of the court to reflect constantly on the maintaining legitimacy

• Only way to ensure respect for the laws.

Judiciary… …the branch of government charged with interpreting the law

• Functions of judiciary:

– Adjudicating private disputes

– Adjudicating cases in public law

– Judicial review of the Constitution

– Commissions of Inquiry (ie. Gomery Commission)

Adjudicating private disputes:

• Collective action problems & credible commitment

• Need for 3rd party enforcement

• Private law a provincial matter

– Quebec: Civil Code (Napoleonic Code)

– ROC: Common Law

• Precedent

• Stare decisis (“It stands decided”)

Adjudicating cases in public law:

Public law regulates government-society relations

1. Criminal Law

2. Administrative Law

• Regulatory legislation not involving criminality

– Workers’ Compensation

– Immigration Board

– CRTC

Judicial Review of Constitution:

• Interpret constitution

– Federal-provincial disputes: limits of S. 91 & S. 92

– Violations of Charter

• Not done on Court’s initiative!

– Private litigants

– Reference by government actor

Impartiality and Judicial Independence:

• Valente vs. Queen (1985): establishes judicial independence in Canadian context & defines impartiality vs independence:

– Impartiality: state of mind of the tribunal in relation to the issues and the parties in a particular case.

– Independence: involves both individual and institutional relationships:

• the individual independence of a judge as reflected in such matters as– i) security of tenure – ii) security of salary

• the institutional independence of the court as reflected in its institutional or administrative relationships to the executive and legislative branches of government, e.g., Courts’ control of its own administration (not entrenched)

http://csc.lexum.umontreal.ca/en/1985/1985rcs2-673/1985rcs2-673.html

Supreme Court

Court of Appeal

Inferior Courts

(Small civil matters, e.g., landlord-tenant disputes, etc.)

Superior Courts

(Criminal Matters)

Canada’s Hierarchical Court Structure

Integration of Canadian Courts

• S. 92.14 gives Provinces control over “Administration of Justice”

– Inferior (S. 92 courts: property, civil matter, drug treatment, etc.)

– Superior (S. 96 courts: serious criminal and civil cases, including

divorce)

– Superior courts run by province, staffed by federal government

• S. 101 courts, e.g., Federal Court of Canada

– legal disputes arising in the federal domain, e.g., claims against

federal government, civil suits in federally-regulated areas (e.g.,

telecommunications).

The Supreme Court...

...the apex of the Canadian judicial system

The Supreme Court of Canada is Canada's final court of appeal,

the last judicial resort for all litigants, whether individuals or governments.

Its jurisdiction embraces both

the civil law of the province of Quebec and

the common law of the other provinces and territories.

Hears appeals from 3 sources1. in most cases, leave, or permission, must first be obtained

from a panel of three judges of the Court.– If in the opinion of the panel, the case involves a question of public importance or if it

raises an important issue of law (or a combination of law and fact) that warrants consideration by the Court

2. cases for which leave to appeal is not required, primarily criminal cases and appeals from provincial references

– In criminal cases, for example, an appeal may be brought as a right where one judge in the court of appeal dissents on a point of law.

3. the reference power of the federal government by which the Court is required to give an opinion on questions referred to it

by the Governor in Council.– a unique function, rarely used.– can be asked to consider important questions of law such as the constitutionality or

interpretation of federal or provincial legislation, or the division of powers between the federal and provincial levels of government.

• Application for leave: permission from the Supreme Court to appeal the decision of a lower court

• Decided by a panel of 3 justices• Source: Supreme Court of Canada: http://www.scc-csc.gc.ca/

• Many applications for leave concern matters that have little direct effect on the average citizen

• Source: Supreme Court of Canada: http://www.scc-csc.gc.ca/

How the Supreme Court Decides Cases?

– Leave sought and granted for about 10-20% cases

– Heard by panels of 5 – 9 justices

– Two types of decisions:

• Unanimous

• Majority

– dissenting opinion

– concurring opinion

Retrieved from http://www.scc-csc.gc.ca/vis/gal/ju-eng.asp

Fundamental Principles of the Judiciary

1. Impartiality

2. Judicial Independence

3. Equality before the Law

Chief Justice’s Office

Chief Justice’s Office

Issues in the Appointment Process

• Prerogative of the Crown (on advice)

• Politicizing the Judiciary

• Need to Balance:– Accountability

– “Representativeness”

– Expertise

– Impartiality

• Should appointments be non-partisan?

• Provincial input or cross-party hearings a la US Senate?

• Should judges be elected?

“Today I would like to talk to you about the role of the courts - in particular the court on which I sit - the Supreme Court of Canada.

I can already see you turning off.

We all know what courts do, you're saying to yourself. They hear cases. They decide whether people accused of offences are

guilty or not. And they settle disputes between citizens. …”

Remarks of the Right Honourable Beverley McLachlin, Chief Justice of Canada

Wednesday, November 6, 2002UWO Faculty of Law

http://www.law.uwo.ca/mainSite/info-news/Chiefspeech.htm

“…But they do much more.

And it's important that we, as Canadians,

understand what they do.”

Quotation cont’d

Rule of Law

• A cornerstone of civilized life

• Laws: institutionalized rules

– Discourage arbitrary use of power

• role of the judiciary in a democracy - to maintain constitutional governance.

• Court System: extension of rule of law

“In the Reference Re Succession of Quebec, [1998] 2 S.C.R. 217, para. 70, the Supreme Court of Canada said this about the rule of law:

"[a]t its most basic level, the rule of law vouchsafes to the citizens

and residents of the country a stable, predictable and ordered society in which to conduct their affairs.

It provides a shield for individuals

against arbitrary state action". Remarks of the Right Honourable Beverley McLachlin,

Chief Justice of CanadaWednesday, November 6, 2002

UWO Faculty of Law

“there can be no rule of law without a judiciary that is

independent of the legislative and executive branches of the state.”

Rule of law

• Governments can only exercise powers given to them from a sovereign legislative body—a legislature

• All laws must be adhered to• Laws themselves must conform to

procedures and substantive provisions found in them

• All decision-making of G must be consistent with the law

Equality before the Law

• Law treats all equally

– Due process, i.e., equality is assessed on basis of procedure not outcome

• Cost of litigation & defence

– Access to legal expertise

– Quality of representation

– War of attrition

Question

How have the concepts of

content, context, and time

affected other nations’ legal traditions?

Legal Traditions:A Cultural Perspective

The cultural perspective reflects historical attitudes about the following issues:

Nature of the law .

The role of law in society.

How a legal system should be organized and operated.

The way law is or should be made, applied, or perfected.

Indigenous Laws

Native laws of persons who originate

from or live in a particular area –

independent of outside influences, i.e.,

aboriginal or native populations.

Indigenous laws have influenced legal systems throughout the world.

Constitution Act, 1982• Subsection 35(1) of the Constitution Act, 1982

states:• “The existing aboriginal and treaty rights of the

aboriginal peoples of Canada are hereby recognized and affirmed.”

• Defines who Aboriginal peoples are:• Indian (First Nations);• Inuit; and• Métis

• Protects Aboriginal and treaty rights including rights already established or which may be asserted.

Purpose of Section 35 of the Constitution is:

• To ensure Indigenous Peoples survive as unique Peoples with their own culture and traditions.

• To address the history of injustice against Indigenous People through the denial of Aboriginal Title, Rights and Treaty Rights.

• To protect the “cultural security and continuity” of Indigenous societies.

• The recognition of the treaty and aboriginal rights of Aboriginal peoples in s. 35 of Canada’s new constitution in 1981 led to a rethinking of the place Aboriginal people and their rights held in the Canadian political and legal systems.

“The fundamental objective of the modern law of Aboriginal and treaty rights is the reconciliation of

Aboriginal peoples and non-Aboriginalpeoples and their respective claims, interests and ambitions. The management of these relationships

takes place in the shadow of a longhistory of grievances and misunderstanding.

The multitude of smaller grievances created by the indifference of some government officials to

aboriginal people's concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and

more explosive controversies.”

Justice Binnie, Mikisew Cree decision (2005, Supreme Court of Canada), para.1

Indigenous Law vs Western Law

• Indigenous laws and relationships to land differ from Western notions of land as “property.”

• Land is not a possession or commodity to exploit or sell.

• “Our Land is Our Culture” (UBCIC) affirms that Indigenous relationships to land are inseparable from Indigenous culture and must be reflected in law.

Indigenous Homeland

• ‘Ownership’ for Indigenous people involves understanding the connection to their homeland. The connection to homeland is demonstrated through cultural practices and Indigenous language.

• Homeland is not simply ‘land’ but everything in one’s world: land, water, air, stars, people, animals and the spirit world.

• Philip Paul discusses colonization and the differences between native and non-native attitudes to land (1975)

http://www.archive.org/download/LandistheCulture_0/The_Land_is_the_Culture_002.wmv

Indigenous Law and Expression

• Indigenous laws and systems of land ownership are unique to each Nation’s customs, and oral traditions.

• Each Nation has its own expressions of laws.

• Laws are not written into statutes, rules, and regulations. Laws are understood through custom, legend, ceremony and oral tradition.

Indigenous Law Is Realized As:

• Land and water are respected and Indigenous people have a responsibility to conserve resources for future generations.

• Laws about land, living and the supernatural world are expressed and recorded through song, dance, story, carving and/or ceremony.

• Laws are carried forward through Indigenous languages and speeches at feasts, longhouses, potlatches, and collective ceremonial gatherings.

Aboriginal Title

• The Supreme Court of Canada said that Aboriginal Title protects the relationship between Indigenous Peoples and their territories.

• Aboriginal Title is more than the right to practice specific activities (hunt, fish) on the land. It is a right to the land itself.

• Aboriginal Title exists from the fact that Indigenous People were the Original People on the land now known as Canada.

September 12, 2006 Lawyers' Roles & Responsibilities 73

Indigenous Bar Association• Non-profit professional association for Indigenous people (i.e. First Nation,

Métis and Inuit) trained in the field of law• Objectives:

1. To recognize and respect the spiritual basis of our Indigenous laws, customs and traditions.

2. To promote the advancement of legal and social justice for Indigenous peoples in Canada.

3. To promote the reform of policies and laws affecting Indigenous peoples in Canada.

4. To foster public awareness within the legal community, the Indigenous community and the general public in respect of legal and social issues of concern to Indigenous peoples in Canada.

5. In pursuance of the foregoing objects, to provide a forum and network amongst Indigenous lawyers: to provide for their continuing education in respect of developments in Indigenous law; to exchange information and experiences with respect to the application of Indigenous law; and to discuss Indigenous legal issues.

6. To do all such other things as are incidental or conducive to the attainment of the above objects.

Social Context Program for Judges

Led to a recognition that the profound failure of the educational system, including law schools, to educate people about the other side of the colonizing experience, left lawyers, judges, and members of the public with the false belief that where Aboriginal people were concerned, Canada’s political and justice systems had done and could do no wrong.

~Justice Murray Sinclair

Aboriginal Social ContextProgram

• What is systemic racism?– You could get rid of the racists and still have a problem

with racism in the justice system.– refers to the way the system goes about its business.

• Increasing resort to litigation by Aboriginal people led to a need for judges to become familiar with the special issues those cases raised such as evidence from tribal elders,oral histories etc.

• Judges expressed dissatisfaction with their ability to deal appropriately with Aboriginal cases.

• Interaction by the judges with the Aboriginal community was part of the approach.

Changes in our midst...• The use of the circle as a judicial and educational tool.• Recognition that law has a culture eflective of the people

within it.• A new appreciation of Aboriginal people and

constitutional law.• Child welfare reforms.• A new approach to sentencing.• Changes to the trial processes.• 4 models of Aboriginal courts across Canada: the Tsuu

T’ina First Nation Court in Alberta; the Cree-speaking Court in Saskatchewan; the Gladue Court in Ontario; and the First Nations Court in British Columbia.

Gladue (Aboriginal Persons) Court in Ontario (“Gladue Court”)

• Gladue Court started in downtown Toronto at Old City Hall in October 2001. The purpose of the Gladue Court is to implement the Supreme Court of Canada’s decision in R. v. Gladue, and to fully realize section 718.2(e) of the Criminal Code.– The judiciary, staff, lawyers, and workers of the Gladue Court give full

consideration to the unique circumstances of adult Aboriginal accused and Aboriginal offenders.

– The Gladue Court offers bail hearings and variations, remands, trials, and sentencing

– It is voluntary and open to First Nations, Metis, or Inuit who identify themselves as such.

• Each caseworker presents an indepth “Gladue report” on the accused’s childhood, family, education, discrimination, and addictions for the court to consider

• Will not excuse criminal behaviour, but it provides valuable information to the court in making a sentence that is fit, proportionate, and unique to the Aboriginal offender with emphasis on rehabilitation where the community safety is not at risk.

Aboriginal Courts in Canada...

Some thinkers/observers assert:• Adopting the Charter to an Aboriginal court

would be a “…continuation of cultural genocide”• The Charter is in conflict with traditional

Aboriginal customs: for example, the Canadian right to remain silent is fundamentally at odds with Aboriginal traditions of responsibility

• The Charter focuses on individual rights while traditional Aboriginal laws place more value on communal well-being

Canadian Administrative Law-legal dimensions of public policy and

government decision-making-whether the exercise and application of

state power in particular policy fields has been accomplished in a

legally proper and just manner-delineates entitlements, protections, and

obligations indivs., groups, and corporations affected by administrative

arm of the state.-establishes rights and obligations

Legal framework for decision-making

-propriety-fairness-justice

…of all government d-mkg…

Courts play pivotal role in administrative law process

Principles and Problems

• Independence

• Efficiency

• Consistency

• Cost

“Judicial independence is expressly or impliedly guaranteed

by the constitutions of virtually every country. It is also

recognised in international instruments expressing

fundamental human rights.”

Michael Kirby, Speech to YALE LAW SCHOOLTHE GLOBAL CONSTITUTIONALISM SEMINAR

16 SEPTEMBER 2000COURTS & POLITICS: JUDICIAL INDEPENDENCE

Federal Cuts in 2006

The Court Challenges Program ($5.6 million) was used to help provide money for special interest groups to challenge government laws, with a focus on language and equality rights.

The Law Reform Commission of Canada, which was set up to advise the Parliament on how to modernize laws, was eliminated after its $4.2 million in funding was pulled.

The Law Reform Commission of Canada

• The LRCC recommended improvement, modernization and reform of some federal laws and deletion of others, as well as providing a basis for philosophical inquiry into legal issues.

• The LRCC was intended to act as a stable body that would keep federal laws up to date and analyze key public policy issues.

• The commission established links with government ministries, the judiciary, the legislative assembly, legal academics and others in order to create the knowledge necessary to develop fully considered recommendations for law reform.

• The commission was permanently disbanded in 2006.

LEAF: October 4, 2006  Dear Prime Minister,

We write today to ask you to reinstate the Court Challenges Program. Only by reinstating the Program can you demonstrate that your government intends to respect the human rights of Canada’s people.

... The Court Challenges Program, by providing modest contributions to the cost of important test cases dealing with language and equality rights, has made these constitutional rights accessible to Canadians.

Without the Court Challenges Program, Canada’s constitutional rights are real only for the wealthy. This is unfair. And it does not comply with the rule of law, which is a fundamental principle of our

Constitution. ...

Basic Steps of Strategic Litigation Canadian Advisory Council on the Status of Women

• Defining a goal in terms of the desired principle of law to be established

• Plotting how the principle of law can be established from case to case in incremental, logical and clear steps

• Selecting winnable cases suitable for each stage taken to achieve the goal

• Consolidating wins of each stage by bringing similar cases to create a cluster of cases in support of the principle established

• Legal Education and Action Fund (LEAF)– Abortion; employment opportunities; protection against

violence– Sponsored– Intervened

Alexis de Tocqueville, in his classic nineteenth-century study

"Democracy in America," argued for allowing judges to moderate the

legislative excesses of a democratic majority through the "antidemocratic"

means of judicial review

“This highly politicized culture in which the American judiciary operates has generally been

absent in Canada. None of our judges are elected, or must run for re-election. None of our judges have their appointments subjected to confirmation votes by a majority of elected

politicians. And political attacks on judges and their courts, by politicians or by

the media, are generally regarded as improper attempts to influence the process of

impartial adjudication.”Michael Code,

Political and media bias about the Supreme Court of Canada:Dispelling the big lie that the court is “soft on crime”

Bertha Wilson, the first woman to be appointed to the

Supreme Court of Canada, stated in a 1985 speech that

the new role of judges following the adoption of the Charter entailed

"a fundamental reordering of the political balance of power."

Charterland• Charter of Rights and Freedoms (1982)

• To advance the rule of law in a liberal democracy

– Prevent governments, no matter how strong their majority support, from trampling on rights of minorities or individuals

– Extensive transfer of decision-making power from legislatures to the courts

• Ultra vires

Courts and the Charter

• The Charter incorporated a new set of constitutional limitations on the legislative and executive branches of government.

• Citizens could now go to court to challenge laws and government acts not only on the ground that they exceeded the grants of power, but also on the ground that they violated fundamental rights. Canadians

• Swamped

central problem

interpreting a Charter which is of necessity very vaguely

formulated

social context

Examples

• Sea Shepherd Conservation Society v. British Columbia (1984) (killing of wolves)

• Bezaire v Windsor Roman Catholic Separate School Board (1992) (9 schools closed)

• Does the environment receive less legal protection than local schools simply because the environment is more removed from our daily lives?

• Fair and Just decision??...

The courts discharging their constitutional role do not function as secondary legislatures. Judges are not

politicians. They are not principal players in the game. They are not even like a head referee or umpire,

directing traffic and passing moral judgment on the playing field. They are more like linesmen in a football

game, measuring the play and calling in or out, enforcing the boundaries of democratic governance. To properly

perform this function, they must be impartial and objective. They cannot be beholden to one team or the

other, one segment of the electorate or the other.

Their role is to mediate the divergent interests, not to

vote for one side or the other. Right Honourable Beverley McLachlin, Chief Justice of Canada, November 2002

“Judges in the contemporary world must rest their decisions on reason, not on force, fear or the deployment of state

power. Thus, the ultimate foundation for judicial independence lies not in the

words of international instruments nor even of domestic constitutions. It lies in

the manifest integrity of the judiciary itself and the general acceptance of that

integrity by the communities whom the judges serve.”

Michael Kirby, Speech to YALE LAW SCHOOLTHE GLOBAL CONSTITUTIONALISM SEMINAR

16 SEPTEMBER 2000COURTS & POLITICS: JUDICIAL INDEPENDENCE

Political theorist Joseph Heath: those on the left and those on the right

ignore the importance institutions in fostering political unity and identity. In particular,

the cultural nationalists mistakenly assume pluralistic societies such as Canada require

shared values to avoid falling apart. They fail to understand that our pluralism reveals intractable

conflicts on basic values, and what ultimately hold societies together is the institutions -

Parliament, the courts and the Charter of Rights - that mediate those conflicts.”

Ottawa Citizen, Nov. 3, 2002, A5

Access of social groups to the courts

• Cancellation of the Court Challenges Program by the Stephen Harper government in 2006-07– Program provided funding for groups to participate in

court cases dealing with equality rights and other sections of the Charter of Rights and Freedoms

• Most adversely affected by this cancellation are women’s groups, Aboriginal peoples, and organizations of and for persons with disabilities

Issues of...

• Extending enfranchisement to certain groups

• Outreach to marginalized groups of voters

• Singling out Muslim women voters

• Financing of political candidates and parties

Think of the odyssey as a long journey.

It is more a maze than a labyrinth:

a labyrinth has just one path,however winding it is, with basic choices

of direction and pace

a maze has unknown, multiple crossroads and uncertain

choices of adventure or misadventure