People involved in human smuggling cannot be denied refugee status in Canada simply on the basis of having assisted in the smuggling, if they have not received any financial benefit from the activity, the Supreme Court ruled on Friday.
|Canadian border officials and police stand on the deck of the MV Sun Sea after its arrival in B.C. in 2010. (Photo: Andy Clark/Reuters)|
“I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum seekers in their collective flight to safety is not inadmissible. . . ,” Chief Justice Beverley McLachlin wrote for the court in B010 v. Canada (Citizenship and Immigration), which was heard with R v. Appulonappa.
The court also ruled that Canada cannot level criminal charges against people simply for having helped someone gain illegal entry, or else “a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution.”
To try to dissuade boatloads of migrants from arriving on Canadian shores, the government of former prime minister Stephen Harper had decided to go only after the organizers, in the hope of dissuading future smugglers from arranging such ventures.
Wednesday’s decisions will make it tougher to go after those in charge, though that will still be possible if it can be proved that they gained financially or materially.
Several of the asylum seekers arrived with about 500 other Tamils who paid substantial sums to board the cargo ship Sun Sea in Thailand. Shortly after sailing for Canada, the crew abandoned the ship, leaving the asylum seekers to fend for themselves.
The Canadian authorities had concluded that several who undertook duties such as working in the engine room had helped with the smuggling and so should not be allowed to stay in the country. The court disagreed.
A separate group of asylum-seeking Tamils who the government says were the captain and chief crew of another vessel, the Ocean Lady, still will face criminal charges that they took money to ferry fellow Tamils to Canada.
The question of refugees has taken on added prominence in light of Canada’s decision to take in 25,000 Syrians on an expedited basis. One criticism of the speed with which Canada is acting is that once they land in Canada, it can be difficult to deport them if they are found undesirable.
SASKATOON — Traditional First Nation stories about an Ojibway legend were used to demonstrate how laws were taught and passed down from one generation to another during the “Aboriginal Peoples and Law: We Are All Here To Stay” conference in Saskatoon.
|Justice Murray Sinclair says he learns new things from traditional stories every time.|
The story contained life learning lessons and teachings about what can happen if you are lazy and a thief.
“Each of theses stories are just filled with teachings,” said Justice Murray Sinclair during the question and answer portion of the session. “As I was listening to it, and as I tell it, each time I seem to get something different from it because that’s the beauty of a good story. This is about taking somebody’s else’s property.”
In the story, Nanabush wakes up from a long sleep, hungry and wanting food. He wanders until he comes across a camp. He steals and eats roasted ducks. Then he gets sick to his stomach because he eats too much.
“This is reinforcing that we have a sense of property,” said Sinclair.
Earlier in the day, Sinclair spoke to the conference explaining indigenous laws and concepts as well as debunking some myths.
“I’ve always chafed a bit by the dominant theory that is held by white legal authorities who said Indians had no knowledge, no tradition of owning property, which I always wanted to say out loud, bullshit,” said Sinclair.
“The reality is you owned things, you owned your weapons, you owned your tipi, you owned your property. No one could take those things away from you. You owned the territory that you occupied. It was your land, your property. Therefore, anybody who interfered with that would suffer the consequences.”
Former Assembly of First Nation Chief, Ovide Mercredi, joined in on the analyses of the Nanabush story.
He said the story teaches what is right and what is wrong.
“Its not a good thing to be lazy but it’s worse to be a thief,” he said to a chorus of laughter. “Because if you are lazy consequences are there and obviously the consequences are that you can’t look after yourself. The story teaches you not to take other peoples property without their consent.”
University of Victoria indigenous law professor, John Borrows, said there are examples of where First Nation tribal courts have used these kinds of stories to support their reasons for decisions.
“In one way, these are children’s stories and they’re entertaining but we also have a resource for reasoning,” said Borrows. “We find this to be a resource for talking with one another what our responsibilities are, our laws, our obligations, and our responses to our challenges we find in our midst.”
Borrows says there is a framework in Canadian law that allows for these stories that talk about reconciliation and involving aboriginal perspectives on the meaning of the right at stake.
The Canadian Institute for the Administration of Justice sponsored the three-day conference.
Yesterday, Thomson Reuters launched an exciting innovation project in Ontario’s tech centre in the Waterloo Region.
Thomson Reuters Lab will live at the Communitech centre, which houses nearly 1,000 technology and innovation companies in the region. The lab means Thomson Reuters can engage with the exciting and expanding innovation network and its dynamic startup company community, the University of Waterloo, and a culture of collaboration within the technology and innovation industries.
The event was well-attended, including a number of Thomson Reuters dignitaries, including chairman David Thomson, president and CEO Jim Smith, and Neil Sternthal, the new managing director for Canada/Australia/New Zealand. Thomson Reuters customers and academic attendees included members of Deloitte, Gowlings, professors from the University of Toronto and University of Waterloo, members of the government, and members of the Communitech community.
Lab data scientists, from including some from Boston and Toronto, put on five demonstrations in the areas of: data science prototypes, Eikon and Westlaw Next, startups (Silque, Beagle, Think Data Works, and Nest Wealth), Reuters TV, and LRT and High Speed Rail (Ion and GO).
The launch kicked off Techtoberfest, which takes place Oct. 13-14, 2015. It allows investors and startup companies to connect, as well as talks from speakers including Gary Vaynerchuk, prolific angel investor and venture capitalist; Allen Lau, CEO and co-founder, Wattpad; and Angela Tran Kingyens, associate, Version One Ventures.
Attendees were also treated to a tour of the Perimeter Institute, a leading centre for scientific research, training and educational outreach in foundational theoretical physics, in which the attendees gathered a sense of how theoretical physics enhances technological innovation. Attendees also toured the University of Waterloo to hear about the applied sciences, technology, and engineering achievements the region and university have garnered.
When the $24.5-million Welcome House in Vancovuer is completed in March 2016, it will form a new housing concept in providing shelter and support systems, including legal advice, for refugees and immigrants.
|Vancouver’s Welcome House will provide opportunity for immigrants to get legal advice. (Image: Henrique Partners Architects)|
There is a similar facility in Lisbon, Portugal, but it does not provide short- and long-term housing for refugees. The Vancouver ISS facility has 16 housing units which can accommodate up to 138 beds.
The 58,000-square-foot Welcome House, designed by Vancouver’s Henrique Partners Architects, is being billed as a one-stop shop for all refugee and immigrant needs. It consist of six floors with the first two providing services such as a pro bono legal clinic, Van City banking services, primary medical care, multilingual trauma support and treatment, multilingual settlement support staff for finding permanent accommodation, employment services, and volunteer services in the community, food bank and second-hand clothing outlets.
The building will also house educational services with seven classrooms for ESL, a computer lab plus child-care facilities. It will also have meeting rooms for seminars.
Friesen says it will provide office space that pro bono lawyers can use to work with new immigrants and refugees. He has already been in touch with several immigration lawyers in Vancouver as well as the University of B.C.’s law faculty.
Over the years, the ability to mesh lawyers with clients has been “piecemeal” but the new facility, with bookings through the ISS’s office, will be more comprehensive, he says. As well, the educational classrooms and meeting rooms provide opportunities to conduct seminars or legal information sessions.
“With the new building and the new initiatives we are pulling together it will allow for a greater continuum of legal services for refugees,” he says, adding the society is open to hearing from lawyers in the community who want to work with refugees.
Aimée Craft, an assistant professor at the University of Manitoba’s law school, has been appointed director of research for the newly opened National Centre for Truth and Reconciliation.
|'It has been quite an honour to have been asked to take on this responsibility,' says Aimée Craft of her new role.|
“Our university was chosen for the centre, the only one of its kind in Canada flowing from the Truth and Reconciliation Commission settlement agreement,” she says. ‘We will be collaborating with other universities and partners across the country.
“Our work here will be centered around policy changes resulting from the TRC, research into the legacy impact on residential school survivors and their families, and larger societal relations in terms of reconciliation.
She says the centre aims to create a complete picture of the residential school story but there are still many questions and more and more information is still coming in.
“After all, the last residential school was just closed in 1996 and there are still survivors who are relatively young. And each school provided a different kind of experience,” she says. “We are continuing to build on the research.”
Craft says the work to create the new Truth and Reconciliation Centre began in February 2013, with the agreement to establish the centre at the university finalized in June, 2013. Craft was appointed to her role — in addition to her teaching duties at the university, in June.
Originally from Manitoba and of Métis-Anishinaabe background, Craft is a 2004 graduate of the Faculty of Law at the University of Ottawa.
“I first thought that I would pursue a career in environmental law,” she recalls. “But after taking a course in aboriginal law, I changed my mind. I found aboriginal law to be intellectually challenging and I have a personal connection.”
She spent about 10 years working for the Public Interest Law Centre in Winnipeg specializing in aboriginal law. She joined the University of Manitoba just over a year ago and is developing two courses: Indigenous legal traditions and a seminar related to the Truth and Reconciliation Commission.
Craft reports that students and archival staff are digitizing all the TRC archive material so it will be available online both for academic researcher and residential school survivors and their families no matter where they live in Canada.
“Our webssite should be accessible by November,” she says. “We needed to balance the need for privacy for survivors and their families and research needs before we were prepared to go online. We already have many people who want to view the archives.”
Researchers, she says, will be able to learn about the general history of residential schools as well as individual schools as well as delve into specific records concerning illnesses, for example, deaths and even the food that was served.
“We are also studying the experience of truth and reconciliation commissions in South Africa and Australia and seeing what we can learn from them.”
Craft’s term as director of research is for five years.
“,” she says.
“The residential schools issue is not just an Indian problem. It is a Canadian societal issue and we all have to work together on the process of reconciliation.”
Katie Sykes, a law faculty member of Thompson Rivers University, has written a paper that outlines international support for the formation of global animal protectionism. It argues law rather than science played a main role in arriving at two landmark decisions.
|‘Science can only inform, and cannot ultimately decide, the legal questions’ around issues such as whaling. (File photo: Issei Kato/Reuters)|
It has been accepted for publication in the European Journal of International Law and looks at two significant 2014 international legal decisions that make major strides in the protection of species. They are the World the World Trade Organization’s ruling upholding the EU law banning seal products, and the decision of the International Court of Justice that Japan’s Antarctic whale hunt is not exempt from the international moratorium on commercial whaling because it does not qualify for the scientific research exemption under international whaling law.
Science plays an important role in both decisions but the paper finds that the decisions are based more on legal arguments with science as a foundation of the arguments.
“Both cases, as well as the broader international controversies over whaling and sealing in the context of which they arose, illustrate the persuasive power of the ‘appeal to science’: enlisting scientific objectivity and rigour to underpin the credibility of legal arguments and legal norms,” says the abstract.
“But the role of science in both cases, while important, is only auxiliary. The questions that the WTO and the ICJ had to resolve were fundamentally legal ones concerning the interpretation of the relevant treaties. The cases also implicated more profound questions of policy and ethics at stake in international conflicts over the protection and the exploitation of marine mammals.”
The abstract and paper can be found at on the Social Science Research Network.
A Quebec judge rejected Canadian Pacific Railway Ltd.’s challenge to a settlement for victims of the Lac-Mégantic crude-by-rail disaster on Monday, clearing the way for compensation payments
|An emergency worker stands on the site of the train wreck in Lac Megantic, July 16, 2013. (Photo: Reuters)|
Forty-seven people were killed and the downtown core of the town was destroyed following the derailment of a train carrying Bakken crude oil.
CP transported the tank cars of oil involved in the accident to Montreal before handing them over to the now insolvent Montreal Maine & Atlantic railway, which was operating the train at the time of the crash. CP has argued that it should not be held responsible for the tragedy.
Unlike other companies targeted by a Lac-Mégantic-related class action lawsuit, CP did not agree to the settlement and challenged the provincial court’s jurisdiction in approving the deal. CP also asked the Quebec court to shield it from future litigation.
In his judgment, Quebec Superior Court Justice Gaetan Dumas dismissed CP’s motion as a “not so subtle attempt” to disrupt a settlement that called for $430 million in compensation for victims of the rail tragedy.
Although CP is not part of the fund and thus would not be on the hook for any of the promised funds, it is being threatened by a separate lawsuit.
A spokesman for CP said the company is currently reviewing the judge’s decision and has no further comment at this time.
|Distracted driving in B.C. (ICBC)|
ICBC figures record 88 fatalities on average per year from distracted driving (most are attributed to use of electronic device use) with the figure surpassing drunk drivers (86) and only second to speeding in roadway fatalities (105).
Anton called for a month of public consultation with feedback on electronic device use while driving and penalties either directed through the justice ministry’s website, by e-mail, or snail mail from June 16 to July 16.
Police report that in 2014, 55,100 tickets were issued to drivers for mainly electronic device use, up from 2013 when 53,000 were issued. B.C. introduced legislation prohibited the use of electrical devices while driving in 2010. In the fall of 2014, it increased the penalty and fines to $167 (the second lowest in Canada) and three demerit points. (Ontario recently passed legislation enabling the maximum fines to rise from $500 to $1,000).
As B.C. wrestles with the issue of how to get drivers adhere to s. 214.2 of the B.C. Motor Vehicle Act, ICBC has struggled with rising insurance claim costs with distracted driving adding $500 million to claims since B.C. first introduced the cell phone law in 2010.
“We don’t seem to want to give up our phones,” says Kyla Lee of Vancouver’s Acumen Law Corp., who represents an average of two individuals with such violations a week in traffic court.
She’s not surprised as distracted drivers have a higher fatality rate than drunk drivers.
“We are on our cell phone 24-7, while most impaired driving offences take place between midnight and 3 a.m.,” says Lee.
Most people, she says, pay the fine and accept the demerit points, but when it turns into a situation that impinges their driving ability, they walk through her door. The penalty for receiving more than one distracted driving ticket in a year is at least $634, the equivalent of two fines and a $300 penalty premium for accumulating six points.
Despite the potential to stack up points, B.C. drivers seem glued to their devices. “People are not getting the message,” Lee says, adding that she has had and heard of cases where individuals have gotten four and five tickets and “still won’t stop using their phone”
Vancouver criminal lawyer Cathryn Waker, with Mickelson and Whysall Law Corp., agrees. She is familiar with cases where the tickets have climbed to 10 or more.
Waker says she’s also seen many new drivers, who aren’t allowed to use a device even if it’s hands-free or voice activated, who are running afoul of the law. Those still under the 24-month probationary period of the graduated licences can also face licence suspensions in addition to regular fines and demerits.
Lee says the courts are tough on offenders. “The justices of the peace are giving that person a stern lecture as well as the fine,” she says.
She adds there isn’t much wiggle room in the way the law is written, even though clients argue that police can’t prove it was a cell phone being used. She says the excuses such as the driver claiming he or she had a bar of soap or a wallet in their hand is not flying in the courts. “Who holds their wallet to their face?” she says. “The courts seem to be quite tired of those excuses.”
As B.C. moves to be bring forward more punitive measures for drivers fixated on their devices, fighting such tickets are also expected to become more difficult. B.C. is in the process of taking traffic violations out of the courts with a two-step process with the first phase a move to e-ticketing, now being implemented.
With e-ticketing, once the police officer uploads it in his vehicle and gives the driver a ticket, the offences is immediately in the judicial system. Tickets are payable online.
For those who want to contest a ticket, it’s an appearance before Driving Notice Review Board. But before the hearing, the person must supply their own evidence. The police officer, or another officer, does not have to supply evidence beyond the ticket, says Lee.
The decision of the board is final with no recourse to an appeal or taking the issue into court, says Lee, who has been an outspoken critic of the new system. She claims it as strips motorists of their basic constitutional rights when charged with an offence.
No dates have been set for start-up of the new system.
Penticton lawyer Charles Albas has been ordered to pay a fine of $7,000 and hearing costs of $1,736.25 to the LSBC for professional misconduct resulting from a conflict of interest when he failed to advise a client, who wanted Albas and his wife to share in her estate, to seek independent legal advice.
“There is no evidence that he exerted pressure on his client or that the proposed gift to himself was anything other than her true testamentary wishes,” the disciplinary hearing ruling said.
Albas had dealings with the client “FC” over a number of years. He had known her common-law husband, who before he died in 2003, asked Albas to “look in” on FC from time-to-time. FC remarried GZ in 2006 and Albas acted for them in numerous matters including drafting a will that gave half of FC’s estate to GZ or alternatively his son and one-half to the Shriners’ Temple. The will was never executed as GZ died in 2007 and Albas handled the estate. After the death, Albas was in contact with FC about once a month.
In 2008, FC advised she wanted a new will, which still gave half to the Shriners’ Temple but the other half to Albas. It was never signed. A year later, she advised she wanted further estate changes. Albas had noted on the file that the client “wants to give me the residue and would like to sign the Will today but no Power of Attorney.” He prepared the will under those terms; it was executed by FC and witnessed.
In 2013, it came to Albas’ attention that the new Code of Professional Conduct for British Columbia prohibited a lawyer from preparing a will where he or she was a beneficiary or received a gift. Rule 3.4-38 states: “Unless the client is a family member of the lawyer or the lawyer’s partner or associate, a lawyer must not prepare or cause to be prepared an instrument giving the lawyer or an associate a gift or benefit from the client, including a testamentary gift.”
Albas then advised his client she would have to do another will and FC indicated that if naming Albas in the will was a problem, she would leave it to his wife. Albas drafted a new will and left it with a lawyer with whom he shared office space to prepare. Albas picked up the will and dropped it off to FC who never signed it. FC was committed under the Mental Health Act in July 2013 and Albas wrote a letter, which had her released. FC retained a new lawyer in September 2013 who wrote Albas asking him not to contact FC further.
The discipline committee found that in the preparation of both wills Albas stood to gain and he had not advised FC to seek independent advice. The situation placed Albas in a conflict of interest with his client contrary to Rule 3.4-26.1.
“There is value in reminding the profession that although a client might wish to provide a lawyer with a gift, the lawyer cannot accept a gift unless that client is independently represented,” said the LSBC disciplinary committee ruling.
The situation where individuals want to leave something to their lawyer is not common, say lawyers, but not unheard of. Mike Beishuizen, principal of Westcoast Wills and Estates in North Vancouver, has come across it several times, once personally, and once hearing of a will where a lawyer was mentioned. It’s a situation that makes him wary. His advice, even to family members mentioning him in the will, is to seek independent legal advice.
“I have always played it safe and told them to get independent legal advice — go to another lawyer for independent advice. That should be done in all cases,” he said.
Such a “best practice” prevents any conflict of interest charges later arising. Beishuizen said lawyers can save friends or family members some costs by drafting a will, which outlines what they want, but the final document should be drawn up by an independent source outside the firm when the individual has received independent legal advice.
Beishuizen said even if the rules are followed “a perception of conflict” can arise.
Estate lawyer Frank Baily has never had anyone leave him part of their estate but if the situation arose, “I would tell them to get another lawyer to do the will.”
He also favours independent relationships in drafting wills for family members. He compares it to being in a business venture with a client where the lawyer receives a percentage of the venture and documents need to be drawn up.
“It is embarrassing if you are on the witness stand with your hand on the Bible and as they examine you and you can’t say you told them to get their own advice and you were not a party to it,” he said.
|Visual proof Ian Holloway was actually in Runnymede earlier this week.|
After all, while bits of it continue to have the force of law, the majority of Magna Carta’s provisions reflect little more than an incoherent jumble of individual grievances from King John’s nobles. Moreover, John himself showed his disdain by reneging on the deal a mere nine weeks later. And the Pope formally nullified it as soon as he became aware of its terms.
Oliver Cromwell — someone not normally known for his sense of humour — called it “Magna Farta.”
So why were a thousand of us assembled in an English country meadow this morning?
It’s because Magna Carta has come to stand for much more than it actually was. Magna Carta the reality was simply one more tawdry nail in the coffin of the disastrous reign of the man who was perhaps the worst king in English history. Magna Carta the illusion is one of the most important events in the evolution of our constitutional system.
What gave Magna Carta its enduring life was not the events of 1215, but rather the constitutional tumult that beset England 400 years later, during the jockeying between the King, Parliament, and the courts for power in the aftermath of the end of the Tudors and the ascension to the English throne of the Scottish house of Stuart.
The Tudors — chiefly Henry VIII and Elizabeth I — had overseen a significant decentralization of state power. When the Scottish King James assumed the English throne and tried to assert absolute authority, the institutions of government pushed back. And the tool they chose to justify their resistance was Magna Carta.
The hero of the story — assuming that one likes our current vision of the rule of law — was the jurist Sir Edward Coke, who served as chief justice between 1606-16. During that time, he almost single-handedly brought Magna Carta back to life.
Magna Carta’s language was feudal. Coke translated it for a post-feudal world. It was he who declared that Magna Carta “hath no fellow,” and it was he who held conclusively that because of Magna Carta, the king himself was under the law. It was Coke who gave legal meaning to the hapless John’s capitulation to the barons.
Coke rewrote history in a way that suited his political ends, and in so doing, he made Magna Carta seem relevant to a society that by now had developed a concept of constitutionalism.
Magna Carta is an icon. Few can fail to be stirred by clause 40, for example, which provided that: “To no one will we sell, to no one will we deny right or justice.” Or by clause 39, which talked about judgment by one’s equals.
But the fact is in the 300 years following John’s reign, Magna Carta was not considered particularly important. Measured against its own text in its own time, Magna Carta was a failure. But what it became in the Stuart period was a tool; a tool to legitimize judicial review of royal action. And a very successful tool it proved to be.
In law as in comedy, timing is everything. And Coke’s time on the bench had the good fortune to coincide with the beginning of British colonization of the New World. As the first colonists left England in search of greater freedom, and as they later nurtured a full slate of grievances against the Crown, Coke’s formulation that the king was under the law proved to be a useful justification both for declaring independence and for enshrining a Bill of Rights a few years afterwards.
That’s why Americans today revere Magna Carta more even than the English. Indeed, the monument to Magna Carta at Runnymede was actually paid for and dedicated by the American Bar Association.
Typically for Canada, our history with Magna Carta has been more subdued. Americans like to wear their iconography on their sleeves. We generally don’t. But even unacknowledged, Magna Carta was — and is — an important tool in Canada, too. For without the tradition of judicial assertiveness it gave rise to in the United States, it is difficult to imagine that our own Charter of Rights and Freedoms would have taken on the life it has.
That’s why we should be conscious of Magna Carta. When we adopted our own Charter in 1982, we enshrined Coke’s picture of Magna Carta. How can we not make sure that we actually understand it?
Subscribe to Legal Feeds
- Neil Etienne
- Patricia Cancilla
- David Dias
- Yamri Taddese
- Jennifer Brown
- Glenn Kauth
- Gail J. Cohen
- Karen Lorimer