Who is this man?

1. Who is this man? What’s at issue?

2. Thursday, November 4, 2010 Media Advisory: First Nations from Tar Sands, Ottawa Media Advisory - First Nations Representatives from Tar Sands impacted regions, meet with Members of European Parliament in Ottawa OTTAWA -- On Friday, November 5, 2010, the Indigenous Environmental Network will be hosting a meeting with Members of the European Parliament (MEPs) and First Nations representatives from various Tar Sands impacted communities followed by a press conference at the Charles Lynch press room at the federal Parliament Building at 10 am. ... First Nations representatives will meet with the EU representatives to discuss Indigenous rights violations in their communities as a result of the world's largest and most destructive development known as Canada's Tar Sands and the impacts of the current proposed EU Fuel Quality Directive. Source: http://censored-news.blogspot.com/2010/11/media-advisory-first-nations-from-tar.html

3. In the news today... • A University of Calgary graduate student, Mr. Devine, a married father of four who has became the face of Calgary’s anti-racism movement was attacked--viciously beaten with a bat and a hammer, among other weapons, police say--inside his home early Monday morning, the fifth and most violent incident where the man has been targeted. • Police say the Devines were “100 per cent targeted.” The couple, who are both white, are the only members of Anti-Racist Action Calgary – a grassroots group that identifies Calgary’s neo-Nazis on a blog • Calgary has struggled to ward off its neo-Nazi movement, which flourished amid the economic boom. Two years ago, an anti-racism march organized by Mr. Devine clashed with white supremacists who showed up. A similar march this year was more tame. A white supremacist was arrested last year after a makeshift bomb was found outside another city home. • There are a handful of key local supremacy groups. One called the Aryan Guard once offered to subsidize supporters who moved to Calgary. Its founders are among the people police want to question in Mr. Devine’s attack. • That group claims to have disbanded, although Mr. Devine said it was simply rolled into Blood and Honour, a militaristic group with a website pledging its dedication to the “preservation of European cultural identity” and ties to other prominent white power organizations. Source: http://www.theglobeandmail.com/news/national/prairies/calgary-anti-racism-activist-beaten-blames-neo-nazis-for-targeted-attack/article1790914/

4. Globe and Mail Editorial this past Saturday...

5. ``Unlike the United States, where there is at least an admission of the fact that racism exists and has a history, in this country one is faced with a stupefying innocence.``— Dionne BrandBread Out of Stone, by Dionne Brand, Coach House Press, RandomHouse.ca | 1994

6. A New Precedent Who is the first person in Canada convicted of a hate crime for burning a cross, KKK-style? Justin Rehberg Did Provincial Court Judge Claudine MacDonald create the right precedent? In this “age of communications...a cross-burning won’t stay on a front lawn in Nova Scotia. They will go around the world and might expose the victims, or members of their identifiable group, to further threats from the lunatic fringe.... did not egg his cousin’s car (which we are not advocating and which would not be news). The fact is, Rehberg did not egg his cousin’s car. He egged on racial hatred.” The Chronicle Herald • Shayne Howe, the only black man in the tiny Nova Scotia community of Poplar Grove. • For him, “the burning cross on his yard was a devastatingly clear warning: Get out of our town.” Globe and Mail, OLIVER MOORE, N.S. man convicted of inciting racial hatred in cross-burning, Friday, Nov. 05, 2010

7. Globe EditorialPunishing cross-burning stops the fire next time From Saturday's Globe and Mail Published Friday, Nov. 05, 2010 7:30PM EDThttp://www.theglobeandmail.com/news/opinions/editorials/punishing-cross-burning-stops-the-fire-next-time/article1787852/ ``The burning of a two-metre cross on the lawn of a bi-racial family in rural Nova Scotia last year was an act of intimidation verging on terrorism. It is important that Canadian justice recognize its viciousness, and not simply penalize it under the bland catch-all “criminal harassment.” Provincial Court Judge Claudine MacDonald was right to declare it an illegal incitement of hatred, and to find 20-year-old Justin Rehberg guilty as charged. This newspaper has argued that offensive and disgusting opinions, including deeply racist ones, should not be criminalized under anti-hate laws, because those laws may silence legitimate debate and because the best way to deal with offensive views is to trounce them in the public square. But we draw the line at expression that promotes violence.``

8. ``Mr. Rehberg's defence – that his burning cross did not actually incite people to commit other hateful acts – is unpersuasive. Should Canadian law wait for a lynching before deciding that the act is illegal incitement? When the state, on behalf of the community, takes a strong position against cross-burnings and other acts of express intimidation against minorities, violence may be deterred. That is the point: the protection of minorities and, more broadly, the non-violent expression of views, two touchstones of Canadian democracy.`` Globe Editorial From Saturday's Globe and Mail Published Friday, Nov. 05, 2010 7:30PM EDThttp://www.theglobeandmail.com/news/opinions/editorials/punishing-cross-burning-stops-the-fire-next-time/article1787852/

9. “Rocky” Jones, lawyer, a long-time civil rights activist & a fifth-generation African Nova Scotian • News about the cross burning in Hants County did not shock the old civil rights agitator. He says the province’s roots, intertwined as they are with the United Empire Loyalists who fled north in the 1780s with about 1,200 slaves and 3,000 free blacks in tow, were tainted by racism almost from the beginning. • Rural communities where black lived separate from white, and often still do, sprouted with the arrival of the loyalists. Hardened attitudes about race persisted. • Public schools were segregated until the 1950s. (The last Nova Scotia school to integrate was in 1983). Africville was bulldozed in the 1960s. Cemeteries were segregated until the 1970s. Now, it is racial brawls in high schools, allegations of racial profiling by Halifax police, the torching of the Black Loyalist Heritage Society in Shelburne and a burning cross on a lawn in Poplar Grove in 2010. • Mr. Jones points to Hants County, scene of the latest crime, as being symptomatic of Nova Scotia’s schizophrenia around race. • The county recently erected a plaque dedicated to William Hall, a local war hero, and the first black man to receive the Victoria Cross. Mr. Hall’s image has appeared on Canadian stamps. • “How is it possible then, to have a society that reveres a man, acknowledges his race, erects a plaque to him, and at the same time have these bozos growing up in the same area with these weird attitudes?” says Mr. Jones. • Burning cross on N.S. interracial couple’s lawn still ‘mind-blowing’ months later, By Joe O’Connor, National Post, November 5, 2010, http://www.vancouversun.com/story_print.html?id=3779805&sponsor=

10. Law Prof, Dal, Carol Aylward • My response to Globe and Mail reporter Oliver Moore was to say that “the cross-burning is just an open sign of what is under the surface.” I also noted that “most people in the black community call Nova Scotia the Mississippi of the North.” • many “individual” incidents of racism in Nova Scotia • to name just a few: • the burning to the ground of the Black Loyalist Society in Shelburne...in 2006; • Read more: http://www.thecoast.ca/halifax/celebrating-our-story-at-last/Content?oid=1536402 • the attempted firebombing of the offices of the Black Cultural Society in North Preston; • the racial profiling of football star Kirk Johnston and other black community members by Halifax Regional Police; • the racial violence at Cole Harbour High School; • Note: watch Nova Scotia filmmaker Sylvia D. Hamilton’s The Little Black School House. • The film unearths the little known story of the children, women and men who studied and taught at Canada’s racially segregated Black schools. It is a poignant and unfailingly honest evocation of the struggle of African Canadians to achieve dignity and equality through education. • Fracas--White Halifax Regional Police officers & black youth in Digby; • the complaints of racism and systemic discrimination against the Halifax Regional Police Service and Halifax Regional Municipality by black police officers; • the complaints of racism and systemic discrimination by 15-plus black firefighters against the Halifax Fire Department; • or the complaint of racism and racial discrimination against Dalhousie University and Dalhousie Law School (now Schulich School of Law) by this black law professor. • Source: Mar 05 2010http://www.themarknews.com/articles/1070-nova-scotia-mississippi-of-the-north

11. Aylward, cont`d • talking about these “individual” incidences begs the question of the existence of systemic racism in Nova Scotia. Indeed, the idea that the province is the “Mississippi of the North” must be understood in a systemic context. And this context, unlike the focus on “individual” incidents, does not avoid dealing with the wider issue of racism. • In the case of R.D.S. v. The Queen, the Supreme Court of Canada explicitly recognized the importance of social context in understanding racism and stated that a “reasonable person must be taken to be aware of the history of discrimination faced by disadvantaged groups in Canadian society.” The Supreme Court also recognized that the reasonable person is “not only a member of the wider Canadian community, but a member of a local community.” Such a person, the justices contended, must “be taken to possess knowledge of the local population and its racial dynamics, including the existence in the community of a history of widespread and systemic discrimination against black and Aboriginal people.” [Emphasis added] • We must not limit our view of racism and discrimination against African Nova Scotians to contemporary incidents. If we want to fully understand it, we must also take into consideration the colonial history of Canada and the impact of that history on present day realities. This includes the dispossession of First Nations peoples and the enslavement of blacks. It is only through an understanding of colonial history that so-called “post-colonial” manifestations of racism can be understood.

12. The first African Canadian to...

13. I myself experienced racism as a young boy, growing up in Toronto's East End. I have no doubt that my boyhood passion got the best of me on more than one occasion. I reacted strongly to the hurtful name-calling that I faced simply because I was a kid of a different colour. Later on, I also experienced racism when I was refused service in a restaurant, even though I was wearing my Royal Canadian Air Force uniform. I also faced discrimination when seeking employment after graduation from McMaster University, and as a law student at Osgoode Hall. I was fortunate that the Dean of the law school didn't fail me after I challenged him for making racist remarks. But others may not have been so lucky. Former Lieut. Gov. Lincoln Alexander The Honourable Lincoln M. Alexander, Chair of the Canadian Race Relations FoundationMarch 3, 2000Black Cultural Centre for Nova Scotia, Dartmouth, Nova Scotia Source:http://www.crr.ca/content/view/67/401/lang,english/

14. A few years ago, I came across a poem by Grace Jefferies, a former student at Cole Harbour District High School. Grace wrote:The fear washes through my veinsContaminating the deep red blood.It travels through my body,Further, deeper.The rage heats my skinIgniting a blazing fire It burns my brown skin,Heating, hurtingThe sadness flows through meTouching my heart in the most sensitive placesIt brings tears to my eyesAs the wall of racism,Slams against my face. Source: http://www.crr.ca/content/view/67/401/lang,english/

15. That is the devastating effect of racism. Racism hurts deeply. It is stupid, non-productive, and dangerous. It hurts our young. And ultimately it hurts our cities, provinces, and country. Racism and racial discrimination are ripping holes in the fabric of our society, and our education system is not immune to it.To eliminate the impact of racism, Canada has already legislated positive change through the Charter of Rights and Freedoms, the Canadian Human Rights Act, the Canadian Multiculturalism Act, and various provincial human rights codes.Yet, racism and racial discrimination continue to be deeply ingrained in our thinking and behaviour. Racism exists in our institutions, in prejudicial attitudes, and in the stereotypes some people accept regarding non-white groups. Legislation can act as a catalyst for change, but in the long run, reducing racism in Canada ultimately requires more than equal-rights legislation. Quotation from a speech by Lincoln Alexander Source: http://www.crr.ca/content/view/67/401/lang,english/

16. Who is Canada`s Rosa Parks...?

17. International Human Rights Day Celebrating Unity in Our Communities! Date: Friday, December 10th, 2010 Time: 9:00 a.m. –12:00 noon Place: North Preston Community Centre 44 Simmons Road North Preston, Nova Scotia Join us in celebrating human rights across the province and positive change in our communities! A free community breakfast will be provided. Please contact Ann Divine with questions at 902-424-7356 or divineao@gov.ns.ca

18. Remarks of the Right Honourable Beverley McLachlin P.C., Chief Justice of CanadaThe Challenge of Fighting Terrorism While Maintaining our Civil Liberties • One of the most destructive effects of terrorism is its ability to provoke responses that undermine the fundamental democratic values upon which democratic nations are built. • It is also clear, however, that it would be equally disastrous to jettison our liberties in the name of fighting terrorism. That too would constitute loss of the fight against terrorism. • Our only option is to fight terrorism while maintaining our constitutional rights and freedoms to the maximum extent possible. • Read the full text: http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm2009-09-22-eng.asp What is the annual salary of the SC Chief Justice? $278,400

19. The Charter guarantees to every person — not just citizens — liberty, mobility, freedom of expression and religion, and basic criminal law procedural protections like the presumption of innocence. • Rights, it states in s.1 are: • subject only [and the “only” is important] to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. • The single big idea driving s. 1 is that limits on rights must be justified as proportionate. Proportionality means a fair and justified balance between the exercise of a guaranteed right and a broad conflicting public goal. ...And when Canadians challenge the balance that has been struck, the courts’ role is to review the balance that Parliament or the executive has reached, between rights on the one hand and fighting terrorism on the other. • Read the full text: http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm2009-09-22-eng.asp

20. ConstitutionsA constitution is a set of the most fundamental rules by which a community organizes and governs itself. Those rules tell who has what rights and powers and how things should be done. They tell us—and others—what to expect of our government.

21. Federalism & the Judiciary9 November 2010

22. Federal System • While deciding what system to use in Canada, the Federal System seemed the best choice. • Under a Federal System, the responsibilities for governing were divided between two levels of government, the central government and the provincial government. • Each government had their own jurisdictions but the Feds could override a provincial law if it was seen as not in the best interest of all Canadians.

23. Sec 91 & Sec 92 • Section 91 of the BNA act outlined the federal government’s powers, usually matters that applied to everyone, such as postal service or currency. • Section 92 outlined the provincial governments powers, such as education. • Provinces delegated their responsibilities to municipal governments for local matters.

24. Banking Foreign affairs Criminal Law Public debt Defence Trade and commerce Postal service Penitentiaries Education Health care Labor and Trade unions Property and civil rights Compensation to injured workers Marriage Federal and Provincial

25. Doctrine of Ultra Vires • Government may make laws only in its own jurisdiction. • Called Intra Vires, within the power of government to pass laws. • If a government attempts to pass laws beyond or outside of its jurisdiction it would be said to be Ultra Vires, beyond the power of government to pass laws.

26. Review: Government and Law-making • The executive branchof government is responsible for carrying out the government’s plans and policies. • It consists of the Prime Minister, the Cabinet and the public or civil service. • Members of cabinet are elected representatives appointed by the Prime Minister to positions of responsibility. • The executive branch at the provincial level works much the same way.

28. Review: The Legislative Branch • Refers to the branch of government that has the power to make, change and repeal laws. • Federally, this is the House of Commons and the Senate. • Provincially, it the Legislative Assembly. • The Governor General and the Lieutenant Governor are appointed to represent the Queen.

31. The Judiciary • The branch of government responsible for presiding over Canada’s court system. • It is independent of the other two branches. • Made up of judges who adjudicate disputes, interpret the law and decide on punishments. • Apolitical and independent! • Highest court is the Supreme Court of Canada.

32. Why are we concerned about the role of the judiciary in federalism? • In a federation, there will be a need for a final arbiter in a dispute over which level of government has the power to act in a particular case • The judiciary is appropriate choice for this final arbiter provided that it has the following characterisctics: • legitimacy; • impartiality; • operates with procedural and legal guarantees to ensure that it can and will continue act with these qualities.

33. Legitimacy & Federalism • The primary role of a tribunal is to be the Guardian of the Constitution • to be in a position to the fiduciary of all the hopes, the compromises of the different groups that came together to unite in a federal state. • People and government must respect the decisions of the courts.

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

35. Legitimacy is earned • Responsiblity of the government and of the court to reflect constantly on the maintaining legitimacy • Only way to ensure respect for the laws.

36. Judiciary… …the branch of government charged with interpreting the law • Functions of judiciary: • Adjudicating private disputes • Adjudicating cases in public law • Judicial review of the Constitution • Commissions of Inquiry (ie. Gomery Commission)

37. Adjudicating private disputes: • Collective action problems & credible commitment • Need for 3rd party enforcement • Private law a provincial matter • Quebec: Civil Code (Napoleonic Code) • ROC: Common Law • Precedent • Stare decisis (“It stands decided”)

38. Adjudicating cases in public law: Public law regulates government-society relations • Criminal Law • Administrative Law • Regulatory legislation not involving criminality • Workers’ Compensation • Immigration Board • CRTC

39. Judicial Review of Constitution: • Interpret constitution • Federal-provincial disputes: limits of S. 91 & S. 92 • Violations of Charter • Not done on Court’s initiative! • Private litigants • Reference by government actor

40. Impartiality and Judicial Independence: • Valente vs. Queen (1985): establishes judicial independence in Canadian context & defines impartiality vs independence: • Impartiality: state of mind of the tribunal in relation to the issues and the parties in a particular case. • Independence: involves both individual and institutional relationships: • the individual independence of a judge as reflected in such matters as • i) security of tenure • ii) security of salary • the institutional independence of the court as reflected in its institutional or administrative relationships to the executive and legislative branches of government, e.g., Courts’ control of its own administration (not entrenched) http://csc.lexum.umontreal.ca/en/1985/1985rcs2-673/1985rcs2-673.html

41. Canada’s Hierarchical Court Structure Supreme Court Court of Appeal Superior Courts (Criminal Matters) Inferior Courts (Small civil matters, e.g., landlord-tenant disputes, etc.)

42. Integration of Canadian Courts • S. 92.14 gives Provinces control over “Administration of Justice” • Inferior (S. 92 courts: property, civil matter, drug treatment, etc.) • Superior (S. 96 courts: serious criminal and civil cases, including divorce) • Superior courts run by province, staffed by federal government • S. 101 courts, e.g., Federal Court of Canada • legal disputes arising in the federal domain, e.g., claims against federal government, civil suits in federally-regulated areas (e.g., telecommunications).

44. The Supreme Court......the apex of the Canadian judicial system

45. The Supreme Court of Canada is Canada's final court of appeal, the last judicial resort for all litigants, whether individuals or governments. Its jurisdiction embraces boththe civil law of the province of Quebec andthe common law of the other provinces and territories.

46. Hears appeals from 3 sources • in most cases, leave, or permission, must first be obtained from a panel of three judges of the Court. • If in the opinion of the panel, the case involves a question of public importance or if it raises an important issue of law (or a combination of law and fact) that warrants consideration by the Court • cases for which leave to appeal is not required, primarily criminal cases and appeals from provincialreferences • In criminal cases, for example, an appeal may be brought as a right where one judge in the court of appeal dissents on a point of law. • the reference power of the federal government by which the Court is required to give an opinion on questions referred to it by the Governor in Council. • a unique function, rarely used. • can be asked to consider important questions of law such as the constitutionality or interpretation of federal or provincial legislation, or the division of powers between the federal and provincial levels of government.

47. Application for leave: permission from the Supreme Court to appeal the decision of a lower court • Decided by a panel of 3 justices • Source: Supreme Court of Canada: http://www.scc-csc.gc.ca/

48. Many applications for leave concern matters that have little direct effect on the average citizen • Source: Supreme Court of Canada: http://www.scc-csc.gc.ca/

49. How the Supreme Court Decides Cases? • Leave sought and granted for about 10-20% cases • Heard by panels of 5 – 9 justices • Two types of decisions: • Unanimous • Majority • dissenting opinion • concurring opinion

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