Brexit through the lens of Public International Law When the United Kingdom (“UK”) held a referendum in 2016, an underwhelming 52% of voters supported the Leave campaign as opposed to the Remain campaign. Before delving into the consequences on trade, it is important to unpack the significance of a referendum, through the lens of international law. Referendums serve as the democratic tool by which a population exercises its right to self-determination. Typically, self-determination is invoked by minority communities who hope to secede from a parent state. The right to self-determination arose during the decolonization era, with the emergence of sovereign independent states. It allowed dominated and exploited peoples to assert their right to freely determine their political status and freely pursue their economic, social and cultural development. Ultimately, the right to self-determination was codified in Article 1(2) of the Charter of the United Nations (“UN”), which states that the UN must “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples ….” In modern international jurisprudence, self-determination can be classified into two categories—internal and external self-determination. In fact, this distinction was established by the Supreme Court of Canada (“SCC '') in Re Secession of Quebec. The SCC was to determine whether there was a right to self-determination under international law that would give the government of Quebec the right to affect the secession of Quebec from Canada unilaterally. The Court established that the right of self-determination is fulfilled through internal self-determination, where a population is free to pursue political, economic and social development within the framework of an existing state. Conversely, a right to external self-determination arises in only the most extreme of cases, where a community is blocked from the meaningful exercise of its right of self-determination internally and is entitled, as a last resort, to exercise secession. Although Brexit does not involve a secession from a sovereign state, but rather a political and economic union, self-determination was the driving force behind the Leave campaign. A survey of 7000 representative British voters revealed that Leave voters regard the UK taking control of its laws as the most important priority for Britain in the coming years, followed by the ability for the UK to enter into its own trade deals.[1] Immigration and cultural integration issues were amongst several other factors considered by Leave voters. While the circumstances to not resemble a classic case of unilateral secession, Brexit is in essence an assertion of sovereignty and the right of self-determination for the British population. The Leave campaign was successful, in part at least, because it framed Brexit as a step toward taking control of the UK’s political, economic and social spheres. It fostered the idea that the “EU holds Britain back” from its potential as a global power.[2] Brexit and Economic Impacts Brexit will redraw the relationship between the UK and the EU. It will redefine the key sectors, from trade to security and data. Given that the EU was formed in an attempt to ease flows of goods and services between members, the most notorious consequence of the deal will be on trade. The UK formally split from the EU in January 2020, however, agreed to refrain from giving the deal effect until January 2021. In an attempt to preserve its trading relations with the EU, the UK reached a post-Brexit trading agreement with the EU in December 2020. In brief, the agreement is akin to free trade agreements, whereby the two parties agreed to refrain from imposing tariffs or quotas on goods between the UK and the EU as of January 2021. The agreement is based transparency, non-discrimination and economic cooperation, characteristic in free trade agreements, from CUSMA to CETA. It contains national treatment and most-favoured clauses (“MFN”) which ensures that both parties receive fair and equitable treatment. Most importantly, as a separate entity from the EU, the UK is able to exercise any regulatory requirements it sees fit. This includes subsidies, technical barriers to trade and sanitary and phytosanitary measures. According to the UK-EU trade agreement, each party is free to institute “its own independent system of subsidy control and that neither Party is bound to follow the rules of the other.” The use of subsidies is disciplined by the WTO’s General Agreement on Tariffs and Trade (GATT). Each party is also allowed to enact regulatory barriers to trade, in the way most appropriate for the domestic market. These barriers are regulated by the WTO’s Technical Barriers to Trade (TBT) Agreement, which provides for limited circumstances whereby WTO members may impose technical barriers. An infamous example of a technical barrier is the labelling requirements on tobacco products. Plain packaging laws have been subject to WTO disputes such as the dispute brought by Indonesia against Australia’s packaging requirements for tobacco products. This has already been used by the UK to impose restrictions on uncooked meats imported from the EU.[3] This new regulatory space, allows the UK to tailor is approach to trade in a manner that meets its population’s needs. Notwithstanding the newly founded freedoms in trade, many scholars continue to assert that the agreements is bound to “leave the country poorer”, at a time when it faces an unemployment crisis and a severe economic recession.[4] While the agreement confer several benefits and rights to each party, it is not a reproduction of the EU. The deal is criticized for its lack of protection of over the UK’s service industry, which makes up the majority of the UK’s domestic economy. Opposition leader Keir Starmer claimed that the deal was “thin” in regard to the trade of services in key sectors, such as the finance industry.[5] Moreover, with greater regulatory freedom, it is said the EU has obtained “the ability to use regulatory structures to cherry pick among the sectors where the UK had previously enjoyed advantages in the trading relationship.”[6] Lastly, Britain’s new immigration regime is aimed at reducing the number of unskilled workers that enter into the UK. However, migrants are vital to the domestic agricultural sector now more than ever, given that the UK’s trading relations are still at its infancy. So while the Brexit can be said to be exercise of self-determination, on the economic plane, the UK’s divorce from the EU will likely have detrimental impacts on its economic growth. By: Lucinda Chitapain For more:
0 Comments
What’s Happening in the Protests The farmers are peacefully protesting in Delhi. They have set makeshift homes in tractors, trailers and tents. It is apparent that they are not leaving without an answer, as the implications of this negotiation, or lack thereof, changes the face of the agriculture industry completely. There has been no destruction to property and instead protestors are keeping the city clean through picking up after themselves. They have also helped local homeless individuals through feeding them through the langar seva. During these protests, the worldwide community has gathered to feed these protestors at no cost and through volunteerism, a solid langar system. Volunteers have also set up schooling for the kids present in the Delhi protest, alongside handing out additional necessities such as blankets and shoes for the cold weather. International Impact Internationally, people of Indian descent are supporting people back home through rallies to show the implications of these bills. Some people are not sure what raising awareness and representation in country’s outside of India will do. The answer is quite simple. This protects and shows solidarity with our farmers back home. In no means are we even close to experiencing what the farmer’s back in Punjab and the other states are going through however, this is a way for us to tell them that we hear them and we are standing with them. By raising awareness, we are also urging country’s to cover the matter to ensure that there is a greater light shed on the issue. This is our way to ensure that we are doing what we can to protect our farmers. Evidence of this impact was also witnessed when India wanted to speak to Canada’s ambassador regarding the comments made by Prime Minister Justin Trudeau, where he stood up for the farmer’s right to peacefully protest. This act alone is evidence that India is being pressured by how its international reputation is being viewed. So, let’s not stay silent, if not for our sake, then for the sake of our farmers back home. How you can support the movement
Continue to educate yourself on the movement. Thanks to social media, we are able to hear the voices of the oppressed. With the Indian media shadow-banning and releasing biased reports suggesting ulterior motives for the protests, it’s up to us to ensure we set the record straight. The Punjabi music industry has also stepped up to make songs to educate individuals about the cause, by incorporating the history of these lands through their lyrics. There are also many organizations who are donating money to farmers during the protests to stay safe. An organization I personally support is Khalsa Aid and they have been accepting e-transfers and using the funds to take care and support the farmers who are sacrificing their lives by leaving their homes and marching to the protest in Delhi. Conclusion Suicide has been a sad and a more increasing reality for Punjab farmers, it has increased by 12 times over the last five years. Poor working conditions coupled with the lack of government support has devastated the livelihood of these farmers. These farmers are already struggling to take care of their lands with the lack of support and the unfair rates the government grants them for their crops. With little to no choice, the farmers take up large loans but without any way to pay them off, they get buried in debt which has been correlated to the increase in suicide rates for these farmers. Instead of the government creating laws to support them (as it currently exists in many Western nations) they have chosen to introduce bills that continue to threaten their well-being and only benefit corporate interests. With these laws, it is only a matter of time until the farmer's way of life in India worsens. Farmers feed the world and it’s time we feed them the respect and the support that they deserve. Because if there are no farmers, there’s no food. By: Karen Randhawa and Sukhdeep Kullar The headline may not catch the attention of those in developed nations. However, it is integral to the Indian economy. Nearly 60-70% of India’s economy is dedicated agriculture. The agriculture sector is composed of:
This is the largest and poorest segment due to the disparity of power. These laws eliminate the commission agent (arthiya) which has been integral to the farming economy, as the arthiya employs individuals who load and offload trucks, weigh the products, and find price rates. Each town has multiple arthiyas and individuals who work with them. This goes on to have a huge impact on the logistics industry since local truckers will be losing their livelihood. There was a “go green revolution in the 60s” where India asked Punjab and Haryana to feed the nation by planting wheat, so that they would no longer need to rely on foreign imports. The method for farming ruined the land, through various chemicals being introduced to the very same agricultural crops that feed the nation. Punjab and Haryana land specifically has sacrificed so much to feed India, but now that India needs them - everyone is turning their backs. Punjab’s economy is heavily agriculturally based, given that it is endowed with five rivers and fertile land. That being said, are Punjab’s interests always upheld at the national level through the saddening increase in farmer suicide rates over the years and the lack of governmental support for shopping local or fair pricing. As someone who practices the Sikh faith, I have been seeing a lot of the teachings of Sikhism in the hard work and determination of the farmers. In Sikhism, the first Guru, Sri Guru Nanak Dev Ji laid the principles as “Kirt Karo (an honest and earnest living), Naam Japo (pray) and Vand Chhako (share the fruits of your labour with others).” The first and third principles have deep roots in farming, as farming was seen as a practice of being self-sufficient and serving the community. This has also helped to develop the practice of langar through feeding individuals free meals, which can be seen in Gurudwaras across the world. During the pandemic, langar seva overseas for those who could not make ends meet, was witnessed around the world - to any person of the human race. By: Karen Randhawa and Sukhdeep Kullar As the movement continues to get strong, I thought it was a good idea to share it with the readers of LB. My ancestors were farmers, hence why this issue becomes personal. I wanted to try my best to do this issue justice with regards to explaining the bills in detail to those who may not be aware of why the “Farmers Protest” matters, and that too on this side of the world. It’s important to mention that you do not have to have any family connection to farmers, to acknowledge and understand the threat this bill poses to the livelihood of farmers, the very same people who continue to feed the world.
This series hopes to describe to our readers the largest protest in the world’s largest democracy, the significance for farming, and why it is a violation of rights. Laws are passed for the betterment of society. However, it is beneficial to contact and keep those individuals who are impacted in mind, in order to pass effective legislation. Yet common farmers had no part in the process of drafting and approving the legislation. The unity amid a pandemic and the resilience displayed by the farmers who left the comfort of their home to protest, is commendable to say the least. What Legislation is Being Opposed? In September 2020, amid a pandemic, the government passed 3 laws deregulating the agriculture sector. Bill #1 - Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 Eliminate all government subsidies for the farmers Currently, the government guarantees farmers a minimum support price for at least a few grain crops which range from 10 to 15 USD for 100 kilos of grain products. Currently, farmers trade their crops within a Mandi system, that allows them to trade in a market with minimum support pricing (MSP). Think of the Mandi as the middle man/ farmer’s market. With the passing of this bill, this law will eventually diminish within a year or two because of the lack of regulation that forces farmers to deal with the demands of big corporations. Going forward, the farmers will have to do contract farming with corporations on an agreed upon price and the corporation will dictate the specifications of products produced. Any excess product will not be purchased, and thus will go to waste. To explain it in comparable terms, it is the equivalent of eliminating a minimum wage or a price floor. The farmers now do not have any price stability and are at a greater risk of being taken advantage of. Bill #2 - The Farming Produce Trade and Commerce (Promotion and Facilitation) Bill If the farmer gets into a dispute with a private company, they cannot go to the courts. Under contract law, will these corporations choose to perform in good faith? In this situation, what are the repercussions if the corporations decide against that? There is a clear power imbalance that tips the scale in the favour of corporations. There is no legal recourse for 50-60% of India's population in cases where a big corporation takes part in exploitation. In the event a dispute occurs, an arbitration will happen but who will have the bargaining power? You guessed right - the corporation not the farmer. Such a bill gives the corporations even more power so that they continue winning every single time, leaving nothing up to the farmers. Bill #3 - The Essential Commodities (Amendment) Bill Any person or entity can hoard or store an unlimited quantity of any essential commodity or product. A large corporation has the capacity to use their financial resources to purchase and hoard agricultural products.. Unfortunately, farmers do not have the capital to invest in storage. This becomes an issue because these very same corporations will have the ability to buy crops in bulk at a lower price. This will undercut the market for these crops on which farmers gain their profits thus leaving them with significantly less to take home. By: Karen Randhawa and Sukhdeep Kullar September 18, 2020 marked the death of one of the most inspirational women that the world has known, Justice Ruth Bader Ginsburg (RBG).
Background RBG graduated from Cornell University with a Bachelor of Arts in Government in 1954. She married shortly afterwards to Martin D. Ginsburg. When the couple relocated, RBG worked for Social Security America. When RBG was pregnant with her first child, she was demoted. Later, she attended Harvard Law School graduate, as one of nine women in her class of over 500 men. However, she transferred to Columbia Law School to follow Martin’s career in New York City. After graduating near the top of her class, she had difficulty finding a job because of her gender. RBG was a research associate at Columbia University. While in these roles, she was inspired by Sweden’s system where there were more female law students (20-25%), and a female judge who was eight months pregnant was still working! This has been said to inspire her to make changes on American soil. She accepted her first professor role at Rutgers University School of Law where RBG was underpaid in comparison to her male counterparts. At this point in time, all of the US had fewer than 25 female professors. She was appointed to sit on the Supreme Court in 1993, making her the second female to obtain that position. Contributions to Society She was an advocate for gender equality and women’s rights. In 1970, she co-founded Women’s Rights Law Reporter which was the first law journal to focus solely on women’s rights. Her approach to gender equality was to adopt the view where equal means same, and not a special accommodation for either gender. At court, her compelling arguments have fuelled changes in society. This article only touches upon a few examples of her stance and the role she played. She began with Reed v Reed, a case challenging the principles of probate court which required men to be the administrator of estates even if there were qualified women to conduct the task. Her brief persuaded the court to unanimously strike down the law. She also stood up for men who faced gender discrimination, in her only Supreme Court loss, Kahn v Shevin. In 1974, Kahn was seeking a property tax exemption that was only available for widows. In 1976, RBG wrote an institutional brief in Craig v Boren to evaluate the constitutionality of sex-based laws. This was with regards to an Oklahoma law that allowed women to purchase alcohol at the age of 18, but men had to be 21 to purchase the same drinks. The stereotype was that men drive, women are usually passengers. The public policy rationale in this situation was unreasonable. In 2007, she was in the dissent for Gonzales v Cahart against her male colleagues on abortions in the second trimester. She pointed out that being a woman does not mean you necessarily would like to be a mother, and those are “ancient notions.” In recent years, she explained the institution of marriage in 2015 with regards to the changes in gay marriage laws. She noted that the state had gender norms, for men to be the breadwinners and women to engage in childrearing. The LGBT2QS+ community’s marriages break these gender roles, hence it was more difficult to get the state on board for this change. Conclusion We pay respects to the woman who has made these significant changes to the function of society, changes that we take for granted. It goes to show that the law is a powerful tool, understanding it and fighting for what you believe in goes a long way. To do justice to her memory, it is incumbent upon us to carry the torch. By: Karen Randhawa A case that is etched in my mind after the first year of law school is R v Stanley (2018), a case that I studied in property law. Here is a quick summary of the facts: Colten Boushie entered Stanley’s farm in his vehicle. After several exchanges, including Stanley’s son hitting the vehicle and cracking the windshields, warning shots fired in the air with the third hitting Boushie, killing him in the vehicle. Stanley did not invoke the defence of property or self-defence at trial. Instead, words like “trespass” and “home invasion” were used and emphasized throughout the defendant’s pleadings. He was charged for second degree murder but was later acquitted. Boushie was an indigenous man of the Cree Red Pheasant First Nations. In rural Saskatchewan, there is heightened racism towards the indigenous community, especially indigenous men. R v Stanley is a case that shows the need for improvement in the Canadian justice system. It highlights the issue of jury duty. By living in a multi-cultural urban city, I sometimes forget that juries have a high propensity of being diverse in terms of age, gender, and ethnicity with more openness towards the change of the law. Jurors do not leave their identity at the doorstep; they have their biases while sitting in on trial. At trial, the jury was composed of white individuals. With growing anti-Indigenous sentiments at the time of trial, the all-white jury likely possessed a biased perspective of the victim. Here, the onus was on the judge to alert the jury of the charge and the policy surrounding the situation. The justice system has once again failed and deprived indigenous people of their rights in Canada. For instance, at trial, the Crown did not intervene and allowed Boushie’s friends to be mistreated and belittled by accusations made by the defence counsel in R v Stanley. The trial should have focused on whether the third shot was an accident in order for Stanley to be acquitted for murder. Had defence of property been invoked, it would likely fail on the basis of disproportionality - murder in response to trespass hence making Stanley guilty Instead, the defendant based their arguments on ideas of trespassing, painting the young deceased as an “intruder” or “invader”. The improper application of law shows the many barriers to access to justice, ultimately explaining why the decision was not appealed. This case adds to the list of many injustices in the system. How can we claim that indigenous people are on the path towards justice when this case echoes what survivors of residential schools faced in their trials? This case shed light on the ethical issues within the practice of law. Lawyers should not take on a case if they will not be representing their clients effectively. The Farmers’ for Firearms claimed that the laws were insufficient, and people should have the right to defend their property in rural properties. Although it is understandable that the distance in rural areas for the police to cover is huge and response times might be slower than one would hope, that does not mean justice should be taken into the property owner’s hands. There should be limits to self help remedies. Even in a citizen’s arrest, property owners cannot exert undue force. There is a reason why we have laws and enforcers. This case exemplifies the power of lobbying and highlights how our legal system prioritizes property rights over our Charter rights to life, liberty, and security. Specifically, where this law is enacted, there is a history of disproportionate violence towards indigenous peoples. R v Gunning only justified to shoot in the case of self-defence. In R v Stanley, the evidence does not show if it was a matter of self defence or not which may allude to why it wasn’t argued as a defence at trial. Presuming that entry onto private property in rural Saskatchewan is trespass reverses the common law presumption that you can knock on your neighbour’s door rule. Although I understand the basis of the common law presumption, farmers have acres of land and do not want individuals on their property which is a legitimate policy concern. This is another example showing how the law has shifted from the idea that land is a communal resource to the perspective that land is a private commodity and exclusion is crucial to maintain these private interests. In a rural community, people may need each other more than ones in an urban setting. In the case of a flat tire, being lost and losing reception on their phone, or running out of food and being unable to go to the store due to the weather conditions or lack of gas. The indigenous community faces injustices, from the historical implications of treaties to the current forms of systemic racism. It debunks the myth of Canada being an accepting nation - we are truly inclusive from coast to coast. We need to address this issue as law students and lawyers as we are agents of change in the very legal system that shuts indigenous people out. By: Karen Randhawa An Oldie but a Goodie When I reflect on my first year of law school, one particular case stands out. Not only because it was a landmark case that reshaped our understanding of contract law, but it also continues to be relevant in the world of advertising and marketing. The Carlill v Carbolic Smoke Ball Co decision was delivered by the Queen’s Bench in 1892. The facts are straightforward. In 1891, Carlill, the plaintiff, saw an advertisement in a local newspaper, published by the defendant, the Carbolic Smoke Ball Company. As you may know, during the late 1880s, the influenza epidemic had claimed the lives of many. The defendant’s claimed that their ‘smoke ball’ could cure the flu. They were so sure of their product that their advertisements promised a 100€ reward to any person that contacts the influenza or any cold, after using the Carbolic Smoke Ball according to the printed directions supplied with each ball. The advertisement went as far as stating that the company deposited 1000€ to a bank to demonstrate their sincerity in the matter. Upon seeing the advertisement, the plaintiff purchased one of the balls and used it as instructed (3 times a day for nearly two months). Unfortunately, she contracted the flu. She claimed her 100€ reward from the defendant but was completely ignored. She turned to the court, arguing that she was entitled to the reward. The legal issues boiled down to whether the defendant’s advertised reward was a ‘mere puff’, used to attract customers. Or whether there was a contract formed and eventually breached by the defendant when they refused to award the plaintiff the 100€. Essentially, Carbolic argued that the advertisement was only an attempt to promote and sell their products. They claimed that it would be outrageous of any customer to believe that the company truly meant to pay up. As a result, the court makes a distinction between two kinds of advertisements. First, vague advertisements, using ambiguous language about rewards, are to be considered mere puffs, which carry no enforceability. By contract, where an advertisement uses specific language, it is construed to be an offer. The latter applies here. Not only did the defendant’s ad stipulate that there is a 100€, they also went on to note that there was a deposit worth 1000€ made to the bank. As such, the ad was deemed to be a unilateral offer, which did not require performance but when the performance was completed by the plaintiff, the offer was accepted. A contract was then formed, and it is left to the defendant to perform. Carbolic shews, by the nature and language of the ad, that they do not expect to be notified of performance. Why is this important? While most marketing strategies can be reduced to a mere hoax or ‘puff’, advertising that uses precise and specific language can legally bind the offeror to live up to their promises. Essentially this decision has created a new binding relationship between companies and consumers, holding the companies responsible for the promises they choose to advertise to the world. Unlike typical bilateral contracts, acceptance of unilateral offers does not have to be communicated. In general, a contract is formed once there is intention to create a legal relationship, then an offer, a communicated acceptance and then performance of the contract in exchange for consideration. In a unilateral contract, however, the contract is accepted when the offeree performs the conditions of the contract. Notice of acceptance does not have to precede performance of the offer in unilateral contracts. The offeror gets notice of acceptance at the same time they get notice of performance of conditions. By Lucinda Chitapain After a long hiatus, Legally Brown’s resident torts junkie is back at it again. The topic of discussion for this post is Mustapha v Culligan (2008). While this case is on the older side, it’s one hell of a precedent. What are the facts? Mr. Mustapha purchased a bottle of drinking water (the kind that you can use for at-home water dispensers but will probably take your back out lifting it) from Culligan. Unbeknownst to Mr. Mustapha, this bottle had dead mosquitos floating around in it (or more accurately, one mosquito and half of another). Unlike the average person who may have gone back to the store demanding a refund, Mr. Mustapha went to court asking for $341,775. While it may seem ridiculous that something as simple as this, which could be taken care of through a customer complaint line or a nasty Google Review, to be taken to court, this was not a “frivolous” matter to Mr. Mustapha. While Mr. Mustapha did not consume the water, the sight of the mosquitos triggered a whole host of psychiatric issues including major depression, anxiety, specific phobias and obsessional thoughts. Oh, and the most quoted side effect - the negative impact on his sex life. The media has sensationalized this case however, as unusual as this case is, it is important to remember that the incident had a very real impact on Mr. Mustapha. While Mr. Mustapha was successful in achieving damages at the court of first instance, he was unable to achieve the same results on appeal. Culligan appealed to the Ontario Court of Appeal where the court found in their favour. The court noted two flaws in the judgment of the trial judge - his failure to incorporate an objective component to the duty of care and opting for the standard of possibility rather than reasonable foreseeability. This case eventually travelled to the Supreme Court where in a 9-0 decision, Mr. Mustapha lost the appeal. To briefly put on my constitutional scholar hat, the unanimous decision speaks volumes. The court is unified on the stance that “the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.” The debate about the prevalence of tort law’s distinction between psychiatric injury and mental injury is invoked in Mustapha. Some argue that despite the Supreme Court’s statement that “the distinction between physical and mental injury is elusive and arguably artificial in the context of tort,” they adhered to the distinction by failing to apply the but-for test. Whereas the but-for test is generally respected vis-a-vis physical injury where the plaintiff can claim damages if they are able to demonstrate that their pre-existing disposition (thin skull) to a certain injury would not have materialized had it not been for the defendant’s negligence, cases like Mustapha show that the rule is not readily transferred in the realm of psychiatric injury. From my understanding, Mr. Mustapha failed to establish a duty of care, not causation. The Supreme Court held that there was no reasonable foreseeability that an ordinary person would suffer the psychiatric damage that Mr. Mustapha did. There was no question about causation - the Supreme Court acknowledged that Culligan’s negligence did in fact cause the damage to Mr. Mustapha. Perhaps it’s an overly artificial distinction but from my amateur understanding of tort law, there is a structure to a negligence claim that must be satisfied to achieve damages. The structure is as follows: an act by the defendant, duty of care, carelessness, causation, remoteness and harm. The issue examined in detail in Mustapha concerns duty of care, not causation. Duty of care and remoteness pertain to legal causation rather than the strict factual causation that is informed by the but-for test. In no way do I intend to detract from arguments that claim that the tort law regime differentiates between psychiatric and physical injury through this post. I do believe there is a real double standard when it comes to litigating psychiatric injury. I just don’t think Mustapha is the right case to hang these arguments on. By: Veena Ganesarasa As we continue to reflect on how to put an end to anti-Black and Indigenous racism, we must examine our judicial system and determine the reasons it has failed to serve all Canadians equally. Most recently, Chief Justice Richard Wagner explained that the lack of diversity in the justice system is partly to blame. Although Canada’s judiciary has become more diverse, as a growing number of women, visible minorities and Indigenous people are issued a license, there is still a limited number of racialized judges across Canada. In fact, there has yet to be an Indigenous Supreme Court of Canada (SCC) judge. A note on the appointment process The procedure behind judicial appointments has often been kept from the public. It was not until 2016, that the Liberal government commenced an initiative to diversify Canada’s judiciary by rendering the selection process more transparent. The nine SCC judges are appointed by the Governor in Council pursuant to s. 4(2) of the Supreme Court Act (SCA). Requirements for the appointment process has been somewhat formalized to try and promote transparency. In a nutshell, an independent and nonpartisan advisory committee provides the Prime Minister (PM) and the Minister of Justice a short list of potential candidates, who then select a nominee. The nominee is then subjected to a hearing before a Parliamentary committee. Since the SCA is silent on the inner workings of the process, this approach was developed on an ad hoc basis in response to public concerns about lack of transparency. This process has not always been strictly followed. Admittedly, the transition from the traditional processes (whereby the PM appoints from a list of potential candidates, free of public scrutiny) to a public process (whereby impartial committees partake in selecting the candidate) shows signs of progress. However, mere transparency is not sufficient. The process must also be rigorous and consistent. Of the nine judges, the SCA requires that at least three shall be appointed from Quebec. Generally, the Governor in Council appoints three from Ontario, two from the Western provinces or Northern Canada and one from the Atlantic provinces. Apart from these general guidelines, the selection process is truly at the hands of the executive. This may sometimes create a tension between the need to uphold an independent judiciary system and government discretion. With little formalized requirements, the SCC selection process has rarely resulted in the appointment of racialized judges or led to the appointment of an Indigenous judge. Why is diversity important? There is an inherent contradiction when arguing for diversity on the SCC. If judges ought to remain unbiased, why should diversity matter? While all judges should aim to be impartial when hearing a case, it is evident that judicial judgement is not void of personal biases and prejudice. These underlying biases were formally recognized by the SCC in R v RDS (1997). In brief, the case concerned the arrest of a black 15-year-old who had allegedly interfered with the arrest of another youth. The police officer and the accused were the only two witnesses present, and their accounts differ greatly. In deciding that the accused should be acquitted, the judge at first instance took judicial notice that police officers often overreact, especially when dealing with non-white groups. The Crown appealed the decision, arguing that the judgment was biased, and the Nova Scotia Court of Appeal ordered a new trial. The accused appealed to the SCC. The SCC allowed the accused’s appeal and restored the acquittals, finding that there was not reasonable apprehension of bias. The dissent explained that such remarks were inappropriate in all circumstances and should never contribute to a judicial decision. The majority affirmed that courts should be held to the highest standards of impartiality. Decisions must be based on facts in evidence, not biased generalizations. However, the burden of proof for a judge to be found to have acted with reasonable apprehension of bias is high. It is particularly important to note the judgement delivered by four Justices (La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ). Unlike the rest of the majority who showed concern over the judge’s comments, these judges recognize that judges, while they must strive for impartiality, can never be neutral and purely objective. Instead, different life experiences and backgrounds appropriately assist judges in their decision-making process, so long as those experiences are relevant and not based on inappropriate stereotypes. It follows, therefore, that a diverse SCC bench would advance the court’s ability to develop judgements and resolutions tailored to the specificity of each case. The SCC must work toward improving its selection process and encouraging the appointment of racialized judges that would better reflect the multicultural Canadian population, given that judges of diverse backgrounds apply and interpret the law differently. For instance, Aboriginal communities have often voiced their concerns over the criminal justice system, finding criminal procedures alienating and ineffective in seeking appropriate redress. To have an Indigenous SCC Justice would mean consideration specific to Aboriginal traditional and cultural values. It is merely one way to help fix a system that presents an unending course of barriers and obstacles. This would truly allow our justice system to reflect the view of all Canadians. By Lucinda Chitapain We would like to thank our healthcare workers who have worked tirelessly to test, diagnose, and care for patients during this pandemic. This pandemic shaped the way our society looks, interacts and operates. While many are staying home, healthcare workers are risking their own safety for our wellbeing. But what about those individuals who choose not to abide by the rules of social distancing, wearing masks or isolating when returning from travel? The issue that arises is whether doctors have the right to refuse treatment to COVID patients that have been contributorily negligent. That is, patients who have voluntarily failed to follow public health guidelines. There are individuals who don’t believe that the pandemic is even real, whether it be because of the conspiracy theories, the lack of physical symptoms unlike the bubonic plague or the privilege of not knowing anyone who is battling with the disease. Some of these individuals engage in self-destructive habits. It can be seen through protests on the TTC where individuals have proclaimed they do not want their body to be regulated by the state and that masks hinders their freedom of expression. I ask these same individuals who went to school here, dress codes were also enforced – where was this energy when children weren’t allowed to wear spaghetti straps to class? Another example is Bill 21 in Quebec, banning religious symbols such as the hijab, niqab and turbans. The freedom of expression argument is an interesting take, is it more important than the right to life, liberty and security of the person? Wearing a mask has a utilitarian purpose, protecting individuals from spreading the virus to one another. If healthcare workers can wear it for hours a day, we can wear them for limited time periods, when leaving our homes to run errands or going to work. The way COVID-19 impacts individuals differ greatly based on their immunity levels. While some can overcome it without knowing they even had it, others require ventilators to breathe and have reduced lung capacity once treated. Since there is no one cure fits all approach, the spectrum of treatment varies in costs, treatment time and resources. Labour boards across Canada have outlined a four step test to justify refusal to work because of unsafe or dangerous conditions:
However, the situation is different for healthcare professionals given the nature of their work. Doctors have a mandate to help the ill. Healthcare professionals cannot dictate how patients live their lives, nor can they withhold treatment based on the disparity in standards of morality. Physicians are not in the position to determine when self-destructive behaviours warrant treatment. If this were the case, healthcare professionals could refuse cases related to smoking, eating disorders or sports injuries since it could be argued that is “self-destructive” behaviour. Doctors are expected to provide equal treatment for all, without their biased judgment and projected complications. The difference between those cases, and COVID-19 is the risk of contracting the virus. Healthcare professionals are putting themselves, their families and others in close proximity at a heightened risk of infection because it is unknown how this disease is spread. Regardless, the code of ethics highlights that the patients’ welfare be placed above their own self-interest. How can it be monitored if a patient was negligent? Would specific measures need to be in place to assess if they broke by-laws such as congregating with more than 10 individuals? Went shopping without a mask? Should it be that people need to surrender their health card if they break a law to say that they are willing to risk everything, their health included to live a lifestyle that cannot be supported at this moment in time? As a member country for the World Health Organization (“WHO”), Canada is committed to providing healthcare for every human being without distinction of race, religion, political belief, economic or social condition. Therefore, physicians in Canada owe a legal duty of care to patients and there is a limited right to refuse the work based on the four step test identified by the labour board. By: Karen Randhawa |
Legally BrownThis page is dedicated to providing insights on current events and reflecting on recent legal developments. Archives
January 2021
Categories
All
|