The Urgent Need to Reform Jury Selection after the Gerald Stanley and Colten Boushie Case

A Saskatchewan jury’s acquittal of Gerald Stanley in the death of a 22 year old Cree man Colten Boushie has galvanized and polarized public opinion in Canada. Followed less than two weeks later by another jury acquittal in the death of 15 year old Anishinaabe girl Tina Fontaine, these cases raise troubling questions about whether Indigenous people can receive justice in the Canadian criminal justice system.


Colonialism and Systemic and Historical Racism


Both cases should be seen in light of systemic racism that has and continues to discriminate against Indigenous people both as accused and victims.  More than one in four prisoners in Canada are Indigenous.  Indigenous people, especially Indigenous women and girls, also experience significantly higher rates of crime than non-Indigenous persons.


Foreign Dark Money Taints Canadian Parliamentary Proceeding

In her New York Times bestselling book, Dark Money, Jane Mayer investigates the influence-peddling practices of the excessively wealthy class—e.g. Koch brothers—on US democratic institutions. She reveals, with a sense of alarm and foreboding, how corporate donors-cum-political ideologues have strategically purchased increasingly larger portions of the democratic deliberative process. Though located in the United States, these ideologues can extend their reach as far as money can buy, including across international borders, in Parliament and legislative assemblies here in Canada.

M103 Hearings and CPC Derailment

Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss

Originally posted on Prof. Katz's blog, here.

Two weeks ago, Justice Phelan of the Federal Court handed Access Copyright a huge victory in its lawsuit against York University.[1] I have followed the case closely and read the parties’ submissions and I have been constantly concerned that York risked snatching defeat from the jaws of victory. Unfortunately, this is what happened. The good news is that many of the Court’s fundamental findings rest on very loose foundations, that I am confident that York’s loss is only temporary, and that if York appeals the decision and handles the appeal appropriately, most, if not all, of the Court’s major findings will be reversed. One way or another, and possibly with interveners assisting the court, one hopes that all essential arguments will be made on appeal. Therefore, this post provides an anatomy of York’s predictable yet totally avoidable loss.

Of Elephants, Donkeys, and the U.S. Health Care Imbroglio

It is more than passingly ironic that the representative animals of American Republicans (the elephant) and Democrats (the donkey) are both the offspring of a 19th century cartoonist - Thomas Nash.  Were he alive today, Nash might have a great deal of fun depicting these two ungainly beasts attempting death defying arabesques, pivot turns and scissors leaps on the highly greased balance beam that is health care reform.  Both portly quadrupeds agree that Obamacare needs fixing.  But the nature of that fix remains the cause of a great deal of unhelpful snorting, grunting, and braying. 

Too bad they don’t realize that the key lies in appreciating a type of market failure known to economists and other pointy heads as “adverse selection”.  Prepare to be initiated. 

One of the overriding goals of Obamacare (and one ostensibly supported by both Republicans and Democrats) is to ensure that those with pre-existing medical conditions have access to affordable healthcare.  Under Obamacare, this is achieved by compelling insurers to lump those with pre-existing conditions into the same pool as those without – while charging everyone the same price.  This has resulted in what is effectively a government mandated market failure, whose outward manifestations are skyrocketing health care premiums and market withdrawals by multiple insurers. 

Obscene intentions and corrupting effects

[Cross-posted from the OUP Blog)   The 1868 decision in R. v Hicklin created a formula for evaluating obscene works that British and American courts would use for nearly a century. Chief Justice Alexander Cockburn, in a succinct phrase that numerous courts would quote, explained that “the test of obscenity is … whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” Hicklin is often taken as inaugurating a new era in obscenity law, shifting attention away from the author’s intentions, and towards a vague and subjective evaluation of the work’s effects.

Canada 30, 150

The one hundred and fiftieth anniversary of the British North America Act is now celebrated as Canada 150, Canada’s sesquicentennial. But the celebration is not without controversy. Many Indigenous people regard Canada 150 as a celebration of 150 years of colonialism, stolen land, mass oppression, and a racist devaluing of Indigenous languages, cultures, laws and practices.

As a proud member of the Opaskwayak Cree Nation, and a legal theorist in the faculty of law at the University of Toronto, I struggle with the issue of how to understand what a just relationship might look like between settler and Indigenous people. There are many large scale political, legal and territorial remedies to consider, things like providing Indigenous people greater jurisdiction over their traditional territories, or developing child welfare systems that take account of our clan based family systems rather than the nuclear family favored by current systems. These are necessary steps on the road to reconciliation, but they also represent enormous political and legal struggles.

Google v. Equustek: Unnecessarily Hard Cases Make Unnecessarily Bad Law

Google "G" LogoWhen lawyers say that hard cases make bad law, they usually mean that extreme or unusual circumstances provide poor basis for making legal rule that would have to be applicable to a wider range of more common cases. Sometimes the phrase describes cases that involve a party whose hardship draws sympathy even if its legal case is weak. But sometime hard cases can make good law, when they present smart judges with difficult dilemmas and force them to think hard and deep on their ruling and its broader consequences. Yet courts don't always choose the cases that come before them and the possibility of a hard case making bad law is an occupational hazard of the legal system.

Presents, Emoluments, and Corruption

(Cross-posted from Balkinization)   The government’s motion to dismiss in CREW v. Trump features a two-prong argument on the central issue in the dispute, namely, the meaning of the term emolument in the provision stating that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” The DOJ’s argument presumably offers a template for the government’s position in the other emoluments cases. First, according to the DOJ, the term emolument was “widely understood at the framing of the Constitution to mean any compensation or privilege associated with an officesuch as tolls, rents, fees, and the like, attached to the performance of official duties.

Our Anxious Supreme Court

[cross posted from]

One gets the sense that the Supreme Court of Canada does not have a good feel for free speech questions. It took some time, for instance, for a majority of the Court to acknowledge that legal constraints might ‘chill’ free speech. The Court confidently proclaimed, on more than one occasion, that civil and criminal legal prohibitions should not be expected to deter speakers. 

Only recently did the Court acknowledge this possibility and, accordingly, relaxed the law of libel so as to allow a new defence of responsible communication on matters of public interest. The Court did so only after other commonwealth Courts had taken a lead in relaxing the common law of libel. It was this reform that enabled the press to report freely on the misdeeds of the late Toronto Mayor, Rob Ford, without the worry of a lawsuit.