Legal History in Southwestern Ontario

This past week I took a trip up to Southampton, Ontario on mighty Lake Huron. Up and back, we passed through many small towns – many of which undoubtedly look similar to how they did a century ago, except for the striking cenotaphs raised to memorialize the young men sent abroad during the great wars of the 20^th century. With that in mind, I begin today's blog entry with two such cenotaphs, one in Chesley and the other in Harriston.

(The cenotaphs of Chesley [upper] and Harriston [lower])

The trip had much to see with regard to Canadian legal history as well. My first stop in Chatsworth, now a small bedroom community for Owen Sound, was the birthplace of Nellie McClung, an MLA for Alberta and a famous women’s rights activist. In the late 20s, McClung became part of the ‘Famous Five’ who launched Edwards v Canada (Attorney General) [1928] SCR 276 and [1931] AC 124 better known as the 'Persons Case'.

(Chatsworth, Ontario)

It all started in 1916 when women were asked to leave a prostitution trial. Incensed by this, jurist Emily Murphy asked that the Alberta Attorney-General for a court for women by women and the Attorney-General agreed. This was then challenged by a lawyer who claimed that women were not qualified persons according to the British North America Act, 1867 and the case went to the Alberta Court of Appeal whose judgment held women were indeed qualified persons. Murphy wanted to take this national and submitted her name to be named a Senator in the Parliament of Canada. When this was rejected by Prime Minister Robert Borden, Murphy and her fellow appellants, Henrietta Muir Edwards (Vice-President for the province of Alberta of the National Council of Women for Canada); Nellie L. McClung, Louise C. McKinney and Irene Parlby (all of whom were members of the Alberta Legislative Assembly) petitioned the Governor-General to submit the question to the Supreme Court of Canada. This was done with Edwards v Canada (Attorney-General) [1927] SCR 276 in which the Supreme Court held women were not ‘qualified persons’ for the Senate. This was subsequently appealed to the Privy Council in London (as the Supreme Court of Canada was not yet the court of last resort for Canada) where the judgment was reversed in Edwards v Canada [1931] AC 124. Here the Lords concluded that the word 'persons' in s.24 BNA Act includes both men and women.

Besides the obvious point of holding women as qualified persons, Edwards is also remembered for Lord Sankey’s Living Tree Doctrine which held the constitution was like a 'Living Tree’ and that constitutional interpretation is organic and should be read in a broad and liberal fashion so as to change with the times. This would significantly impact later Canadian constitutional and administrative law.

The second site I stopped was the birthplace of Canada’s 13^th Prime Minister, John George Diefenbaker in Neustadt, Ontario. Diefenbaker, the son of a school teacher and the descendant of German immigrants, moved to the Northwest Territories (Saskatchewan) in 1903 where he was later educated at the University of Saskatchewan. He was called to the bar in 1919 after a short time in Europe, and started work as a small town lawyer. Elected to the Canadian parliament in 1940, Diefenbaker would become leader of the Opposition in 1957 and later that year Prime Minister of a minority government. After three decades of Liberal governance there was little front bench strength for the Tories, but this did not stop a massive Diefenbaker majority in 1958. His government would be moved back to minority status in 1962 and was eventually sent across the aisle in 1963.

(The Diefenbaker home)

In 1960 the Parliament of Canada passed the Canadian Bill of Rights. Bills of rights are a longstanding tradition in the Anglo-American legal world, going back to Magna Carta and Diefenbaker, having been influenced by the Saskatchewan Bill of Rights and numerous cases regarding government power, sought to give Canada one of its own. This Bill of Rights was not entrenched however, and as the product of a supreme parliament could be changed at any time. This is one of the reasons why many in the legal community see it as a failure, while supporters of a supreme (sovereign) parliament see it as a true inheritance of Canada's parliamentary tradition. But that is a subject for another day.

So with that, I concluded my little trip of parts of south western Ontario. It was a great little summer adventure and brought us a little closer to Canada’s rich legal history. We hope you enjoyed the trip!

(Lake Huron)

MLSE, Maple Leaf Gardens and the Winnipeg Jets

How much is too much? That’s something we would love to ask the management of Maple Leaf Sports and Entertainment after reading about them in the newspapers yesterday. Just when you think they couldn’t get more greedy, it recently came to light that the owner of Toronto’s soccer, hockey and basketball teams, are seeking an injunction against the owners of Maple Leaf Gardens (Ryerson University and Loblaw Properties) for using the name ‘Maple Leaf Gardens’. MLSE believes this will mislead people into believing the two groups are affiliated, and therefore damage MSLE’s brand name. The injunction further notes that MLSE is worried the 2,500-seat arena will steal events from the Air Canada Centre.

This is a preposterous notion. In Toronto, Maple Leaf Gardens has iconic status and everyone in city knows it is no longer affiliated with the Maple Leafs or MSLE’s lesser sports properties. Moreover, no reasonable person would believe a small, 2,500 seat university facility (or its attached supermarket!?) will take business from the 19,000 seat Air Canada Centre. And if the Ryerson facility does take business from the ACC, it will do so on its own merits -- and not because of its name. Furthermore, the fact that it has sat in a decrepit state for over a decade, makes this injunction even more ridiculous. If MSLE is willing to let the letters of Maple Leaf Gardens fall to the sidewalk, then surely they are not concerned with what the building means to their reputation. Indeed, this fix-up and innovative use would have only help the image of MLSE -- by convincing Torontonians they actually cared for this historic building by selling it to a worthy new owner. But MLSE did not have the public relations sense to think of this.

On a related note, I would like to take this opportunity to officially endorse the Winnipeg Jets. I am not a follower of North American soccer or basketball, and have never cared for MLSE’s wannabe English footie club or the perennial ‘also-ran’ Toronto Raptors. But as a long time ice hockey fan, I have long carried a soft-spot for the Toronto Maple Leafs regardless of the ir ineptitude on the ice or the senseless actions of their parent company. Not anymore. We will not give a further nickel to that company and look forward to supporting the new hockey club in Winnipeg. Go Jets Go!

Jack Layton

Yesterday we learned that Jack Layton, leader of the New Democratic Party of Canada and Leader of the Official Opposition in the House of Commons, will temporarily step down from his post due to an additional diagnosis of cancer.

Jack Layton is a dynamo of a politician. This May, while using a cane due to an earlier hip operation, Mr. Layton managed to do what no previous federal New Democratic leader had ever done -- take his party to Official Opposition status. This amazing feat -- the likes of which legends Tommy Douglas, Stephen Lewis or Ed Broadbent could not do -- was done by winning an amazing 59 out of 75 seats in Quebec and virtually eliminating the Bloc Quebecois in that province. Many more seats were won in former Liberal strongholds such as Toronto, which is an additionally amazing feat. All in all, the 41st Canadian parliament is the first to have a social-democratic opposition and its 103 NDP seats make that party the largest opposition party in years.

Avenue and Ridley would like to wish Mr. Layton a full, complete and speedy recovery. We rarely share his views, but as a fellow cancer survivor, we have never felt closer to him than now. Good luck, Jack. You can beat this!

Avenue and Ridley reviews Shakedown

Shakedown: How Our Government is Undermining Democracy in the Name of Human Rights by Ezra Levant, McClelland & Stewart, 216 pages, $28.99 (2009)

When I was a staffer on Parliament Hill, I always looked forward to the Western Standard arriving in my MP's mail. Shakedown is a recounting of this journal's publisher Ezra Levant's last hurrah at the Western Standard which included a prolonged encounter with the Alberta Human Rights Commission.

The book argues that Human Rights Commissions, state mechanisms formed in the 1960s and 1970s, have morphed from commissions to fight obvious discrimination into quasi-judicial forums for people with political axes to grind. To make this point, the book cites some astounding successful examples: a pre-op transsexual male who sued because he was refused a councillor position at a rape clinic; a McDonald's Restaurant employee who refused to wash their hands as frequently as required and a right-wing preacher who was silenced from preaching because a newspaper printed one of his letters that spoke against same-sex marriage.

This part of the book paints a picture of what can be called a Human Rights industry. When reading the examples, one can only marvel at the surreal nature of them. Unfortunately for the reader, there is no example of what a normal human rights complaint is so we do not learn if the author’s extraordinary examples that slipped through the cracks or are normal complaints.

The second part deals with the ordeal between Levant and the Alberta Human Rights Commission and focuses on the Section 13 'hate speech' provisions of the Canadian Human Rights Act. This is an interesting account of what happened at the Western Standard after it published the Danish cartoons of the prophet Muhammad. This ordeal culminated with an interview between Commission representative Shirlene McGovern and Levant, which you may have seen: it was posted immediately afterwards on YouTube. This part of the book is largely self-aggrandizing, but it makes the point: the Alberta Commission was reaching and the complaint against the Western Standard was unfounded. It is also very interesting to read how the AHRC folded its case when exposed by modern technologies such as blogs and YouTube.

The book itself is a quick read and -- while a couple years old -- is still interesting. Levant has done Canada a service by exposing these commissions as parallel systems of justice, devoid of hard fought common law safeguards such as the right to face one’s accuser, or sensible rules such as the loser paying legal costs. Proponents of the Commissions will undoubtedly see Shakedown as an attack but this would be a mistake. If Human Rights Commissions are to remain relevant in an increasingly accepting and tolerant Canada, their raison d’être must be explained and proponents should seize this opportunity. Currently, Avenue and Ridley agrees with Shakedown and sees Canada's Human Rights Commissions as government mini-empires that are severe hindrances to the freedom of speech our society has long prized. Kafkaesque courts are never the answer to bad ideas: exposure, debate and ridicule is.

The Vancouver Riots

Yesterday was a difficult day for Canadians. The night previous – the catalyst being a lost ice hockey game – lawlessness and anarchy ran amok through the heart of Vancouver.

AR hopes this is not due to hockey. Canada is the best hockey nation on the planet and we have nothing to be ashamed about. The Stanley Cup IS HOME. The Boston Bruins are by-and-large Canadian, just like the previous champs, Chicago Black Hawks. The Winnipeg Jets are coming back and we're Olympic Champions.

Perhaps these riots were due to a bunch of spoilt brats searching for a good time. It's increasingly looking like this is the case as young people are exposed via Facebook and other social media.

But Canada deserved better than Wednesday night. We are one of the greatest countries in the world and our justice system needs to bring those who started and participated in this anti-social chaos to JUSTICE.

With that in mind AR would like to post a quote from one of our favourite jurists, Sir Edward Coke:

I as to thee (gentle reader) next to thy duty and piety to God, and his anointed, thy gracious Sovereign, and they honour to their parents, yield due reference and obedience to the common laws of England: for of all laws (I speak of human) these are the most equal and most certain, of greatest antiquity, and least delay, and most beneficial and easy to be observed. If the ancient laws of this noble island had not excelled all others, it could not be, that some of the several conquerors and governors therefore, that is to say, the Romans, Saxons, Danes, or Normans, and especially the Romans, who (as they justly may) do boast of their civil laws, would (as every of them might) have altered or change the same.

Police and Crown Attorneys in British Columbia -- go to work!!!