Yesterday, Queen's Law joined its faculty partners across the Queen's University campus in announcing a Fall 2020 semester that will be largely remote, and similar announcements are being made at colleges and universities across Canada. Where does that leave students who are now not planning on returning to their campus homes in the fall - and what are their obligations to their leases (and landlords)?

Queen's Legal Aid director Blair Crew has been helping students with lease issues for years, and shares the ins and outs of the lease and the law, covering obligations, responsibilities, and two possible 'escape hatches' for students seeking to exit leases.

Precedent, contracts, stare decisis and much more are covered in Law 201/701, Introduction to Canadian Law. It's part of the Certificate in Law program from Queen's Law - the only online certificate in law in Canada, and a unique way to learn about the law and how it applies to you in your studies, career, and life.

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Transcript:

00:00 Matt: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd, and we're gonna get right into it this week with Blair Crew, the Director of Queen's Legal Aid, talking about students and landlords, and leases, and the COVID-19 pandemic, and what students who are contemplating not returning to their institutions and their apartments in September can think about as vital components of leases and contracts in the law. It's a great conversation with Blair. If you are a Queen student and need help, I encourage you to reach out to Queen's Legal Aid, but maybe listen to this podcast first because it might answer a lot of questions you have before you get in touch with them. We're gonna pick it up with Blair right now. This podcast is produced at Queen's University, which is situated on traditional Anishinaabe and Haudenosaunee Territory. This podcast is brought to you by the Certificate in Law, Canada's only online certificate in law offered by a law school, and you can find out more at takelaw.ca.

01:00 Matt: My current understanding of the situation is, and this is pretty obvious, there's been a pandemic and a lot of students left campus early, like mid-March basically, classes were cancelled and students then started heading home. We actually circulated some pieces on social media closer to the end of March, just reminding people that even though there were certain exemptions in Ontario, a lot of things like eviction notices, they still were obliged to vacate their apartments on time. But now we're at a point where people are thinking about coming back. The University has announced that a significant portion of classes in the upcoming school year are going to be online, and I'm sure a lot of students are thinking about leases and specifically leases they may have signed for next year before they left campus, and now they're wondering if they don't come back, what happens?

01:55 Blair: Yeah, it's going to be a tough situation for students. And I'm aware, for example, that the Dean of the Faculty of Law just today sent out an email basically advising that, even if the faculty has a capacity to do some limited classes in the fall, that the students will have the option of being fully remote, if they want. So I anticipate that this is a question that's going to come up an awful lot. And, unfortunately, the law is not well designed to deal with global pandemics. There are some possible options that a student may have though, and I... One of the things that's interesting about law is that it's built on the backs of novel situations that no one's ever seen before, where lawyers and judges and litigants need to figure out what the solution is going to be to problems we've never seen before. I always think of... Law doesn't work in the world where everything goes fine, you only need lawyers and the law when there's been a problem that needs to be solved. So that's what we're dealing with here.

03:04 Matt: Right. I mean, one of the first words I learned when I took LAW 201 was the word precedent, which is that our law is based on a series of previous rulings and decisions that have been made, and I guess there's no clear precedent for this situation because thankfully pandemics don't happen all that often.

03:22 Blair: Yeah, it's true, and it hasn't even occurred to me yet to dig out the old law books from 1919 and see what sort of responses the law crafted to the Spanish influenza back then. That would be the last parallel that we've got, I don't doubt that some of these issues on a different scale came up back then. With respect to students that have signed leases, one thing that I will point out is there's two fundamental... Just basics first, really, there are two fundamental misunderstandings about the way that tenancies generally work in Ontario. The first of which is, I'm thinking of students, perhaps, that are going into third or fourth year, that are just continuing on a lease that they've already had. One of the misunderstandings there is that the students cannot be forced or required to have renewed their lease for another year. And if they did not do so, it automatically converts to a month-to-month lease that the students can get out of at any time on 60 days' notice. Now, this won't be the majority of the situations that we're thinking about, where someone has just signed a new lease. But I'm sure for a few students that were savvy that have continued on their lease, they may have now gained this right to terminate on 60 days' notice, and that would provide an escape hatch for them.

04:44 Matt: But that's really only for the students who have been in a place long enough that their first lease has basically expired, and it's transitioned to a month-to-month lease. And sometimes this can happen without people even kind of noticing that it's happened, right? They just keep paying the rent.

05:00 Blair: Yeah, it certainly can. Landlords... Because of the vast number of students in Kingston, landlords are always anxious to try and get that one year commitment. Everyone's trying to avoid that four-month gap where there are far less tenants in Kingston than at any other time. So the trick of landlords is to sometimes get students, even those returning to sign another year-to-year lease, and if they've been provided an incentive to do so, such as, "Sign for another year, and we will not increase your rent," then the courts have found those leases to be binding, notwithstanding that the student could have given 60 days' notice and had the lease automatically convert to a month-to-month.

05:45 Matt: Okay. So I feel like we've got a pretty good step one here, which is, make sure that you actually are in a lease and that you're not converted to a month-to-month situation that you might not be aware of yet.

05:57 Blair: Yes, and that certainly the step that I feel most confident about, that for those rare students that have that right, I can absolutely predict the outcome of that case. The second misunderstanding with the law that I talked about before though comes from that notion of 60 days' termination. Because you simply do not have the right to terminate a lease that you've signed for one year on 60 days, the 60 days only applies to a lease that is converted to month-to-month. So if a student has, for example, signed a new one-year lease, they're just coming out of residence, they signed a new one-year lease going from May 1st to April 30th, anticipating coming back in the fall, those students don't have the right to provide 60 days' notice and get out of that, and it could not be done without the consent of the landlord. And I suspect that few landlords are going to be concerned in to simply allow their non-returning student tenants to not show up in the fall and not pay them any rent for the course of the next 12 months.

07:00 Matt: Possibly a silly question, but does it matter when you sign that lease?

07:06 Blair: I think that in terms of one of the solutions that we're going to talk about shortly, I think that it might make a difference. If you signed the lease back in January or February, when we were just beginning to hear words like "coronavirus" and "COVID-19," then you've got a stronger argument that what happened was completely unforeseen and beyond your contemplation, so that maybe you could be excused from your lease. On the other hand, if you just signed the new lease after the emergency order went in place, I think the landlord has a much stronger basis to argue that this was something that you could have contemplated. You knew that this was one of the possibilities and took the risk of signing a new one-year lease in any event. So it may make a difference. So one of the Hail Mary passes that we're about to talk about.

08:00 Matt: Right. The 60 days thing only applies to people that aren't in a current lease and that are going month-to-month. Even if you signed your lease back in January, or even if you signed your lease yesterday, it's still a signed lease no matter when it was signed, and no matter when it takes effect, you've signed that contract, and the contract is now set in stone.

08:22 Blair: That's right. And to that aspect, it doesn't matter when you signed it. In other words, once you've signed it, you've committed yourself to honor your obligations for the next year, and if you want out at any point before the benefits of that contract were actually to start, you don't have a way out, you've committed yourself to the contractual term, even if you anticipated that you wouldn't start paying rent and receiving the benefits of the tenancy for a further four months, or whatever length of time that was.

08:52 Matt: Right. And I remember, we worked with Queen's Legal Aid a while back on some tenants' rights materials that are available on your website, are clearly not covering this issue because, as you said, COVID was barely on our radar when we worked on that project. But one of the principal elements of that project was just explaining tenants' rights to people, and that's when I learned that I thought our late February, early March launch for this was good. But a lot of Queen's students signed their leases in January or February. And I suspect that's true for a lot of universities across the country, that students are signing leases maybe five or six months out from when the lease is due to start.

09:32 Blair: Yeah, generally speaking, Kingston is a very competitive renters' market, particularly in the downtown student housing area, and as a result, there is an incentive for both landlords and tenants to get students under contract early. So landlords wanna know as early as possible whether they need to look for a new group of four, or five, or six students for the following year. And students, particularly if they've got a nicer place, wanna get in on it, so that they're not searching in the very competitive market when prices tend to go up either right before... Right at the end of April, or still, if you don't have anything in September and you're showing up, looking for it. So for those reasons, we see an awful lot of people that come in and are asking in January, or sometimes even December, about renewing their lease for the following year, and indeed, sometimes wondering what happens if I don't sign the new one-year lease that the landlord has offered. Can we just say, we always see those questions in December and January.

10:35 Matt: Right. And just to double back to a conversation we've had on this podcast earlier, and people can look this one up, it's from, I think, 2019. We talked a lot about leases and leasing, but just to touch on one point from that conversation again. Can we be a little clear about who's on the hook? If we have a bunch of roommates, it really matters who's actually signed the lease, whose signature is on that piece of paper is vitally important?

11:04 Blair: Yeah, I've always said that you wanna pick both your arrangements, but also your co-tenants very carefully. The standard arrangement that is seen most frequently, because it provides the strongest possible protection for a landlord, would be to get the group of four or six tenants to all sign one lease document together. And typically they will ask for co-signing signatures of parents of six of the students as well. Now the landlord has 12 possible individuals that they can come after for the entire amount of rent. So that if any one tenant goes, the remaining tenants are still responsible for that rent, and the landlord has their choice of going after any one of the signatories to the lease the entire amount of rent. So from the point of view with picking your co-tenants carefully, you wanna make sure that you are with reliable friends that you know who are going to stick it out through thick and thin, and that you're not going to have two of the six that are going to abandon you and stop paying rent for which you are responsible, when the going gets tough in January or February, and we're all miserable because of the cold weather outside.

12:14 Matt: I don't think we can put too fine a point on this. So just to reiterate, if five people sign a lease, A, B, C, D, and E, all of five people's names and signatures are on that lease. If A, B, and C don't pay, the landlords can still go after D and E for their share, right?

12:33 Blair: That's correct. Or the landlord could simply pick on D or pick on A, any one of them where the landlord figures that there is money to satisfy the amount that is owing. You are what we call joint and severally liable. That means, each of the tenants is responsible for the entire amount of rent, and it goes even farther than just rent. If D were to damage the property, say for example, by starting a fire or putting a hole in the wall after a party, that Kingston Finest didn't shut down, then you could go after any one of the tenants for the damage that any one of the other tenants had caused.

13:13 Matt: Just in passing, the mention of parties and Kingston's Finest, another great podcast that people can find in our archives featuring you, Blair. So if five people have cosigned a lease, they're not dividing the risk five ways. Each of them is liable for entire risk... I don't know if "risk" is the right word, but each of them is liable for the entire lease.

13:34 Blair: Absolutely. You can think of it as the risk or the responsibilities, but also the rights as well. They get an undivided interest in the whole house, and you are assuming potential responsibility for the entire amount. There is another form of tenancy arrangement that some landlords sign as well, which is more flexible for the tenants. That occurs where each of them signs their own lease. But even here, there can be some pitfalls. 'Cause there are two ways that this occurs. One of which is the landlord directly gets each of the five tenants to sign their own lease, the other signatures do not appear on the same document, the tenancies might not even last at the same time. The downside for renters of this is then it's the landlord's decision who your roommates are. But the upside for the tenant is that they are only responsible for their one-fifth share or whatever the apportionment was, as set out in the lease document. This is a form of tenancy called tenancy in common, which is used less frequently, but you still see it sometimes.

14:38 Matt: Okay. So when we were talking about this initially, we raised the subject, and I said, so what can a student do if they realize they're not coming back to Kingston and they wanna get out of a lease? And your basic take on it is, well, a contract is a contract is a contract, but there is this... It's like on the internet, there's one weird trick. And it may not work, but it's the only thing we can think of that might actually apply here.

15:07 Blair: And actually, since we first spoke, I've come up with two tricks.

15:11 Matt: Oh, two weird tricks? Excellent.

15:13 Blair: But both of them are contingent upon some decisions and actions by other people that a tenant cannot count on. So before we get to the one neat trick that you just referred to, there is something else that you can do, which is, there's a... If you will, a little quirk in Ontario tenancy law. What that quirk is, is that when a tenant has stopped paying rent and is in default, of course we want to give the landlords the right to evict the tenant, so they can get the non-paying tenant out of the premises, and then get a new tenant in there that presumably will be better at paying the rent. And Ontario law does say... It went to an appellate court in 2016, that when the landlord chooses to take the actions to start evicting those tenants, so, for example, by giving them a notice to terminate the tenancy for non-payment of rent, in that notice there will be a period specified. It's typically at least, it's gotta be at least 20 days, that the landlord... That the tenant has the right to make good on the rent, and that voids the notice.

16:24 Blair: But in that notice itself, it also gives tenants the options to vacate the premises in accordance with the notice. And the question became, what happens if the tenant leaves? Does that end the whole tenancy from the point of view of the obligation to pay rent? Or does it merely... Is it the student just giving up the right to continue to reside there, or the tenant giving up the right to reside there? And of course, the parties couldn't agree on what that meant, so it ended up going to a court case. It was decided by the small claims court, and ultimately upheld on appeal, that where a tenant vacates in accordance with that notice, within the 20-day period, it ends the obligation to pay rent and ends the tenancy. So the first Hail Mary pass that students have is that, if the landlord, perhaps is unaware of this decision, also is unaware that the Landlord and Tenant Board is not in the COVID crisis currently enforcing any evictions, if the landlord goes ahead and serves that notice to terminate a tenancy for 20 days, the student has the right to get out and end their obligations.

17:32 Matt: Right. The landlord must serve that notice.

17:36 Blair: And that's why I said that this trick depends on the actions of someone else. And to take it full circle back to our concept of four or six tenants on a lease together, that's only going to be effective if it's all four or all six, or however many tenants there are that choose to vacate together. If any one of them stays in the premises beyond the date specified in the notice, then the right to say, "Oh, we did in accordance with your instructions and we vacated, so our liability is ended," would now be gone. So again, it's a situation where you would need to coordinate very carefully with the other tenants, and as you mentioned, it's dependent on the landlord first giving you that notice.

18:17 Matt: Right. Why would the landlord give you that? I'm thinking of a lot of cases here where students just don't wanna show up. It's not a question of them vacating, like, they just aren't gonna move here in the first place, come September or come August. What would prompt a landlord to deliver that notice if the building's just sitting empty, and they're kind of passively collecting, theoretically collecting a debt they can collect on?

18:43 Blair: So it is the first day. Landlords are used to this from what you will of regular times. They rely on the notice because in a city like Kingston, they know that if they get the non-paying tenant out of there sooner, they can get a new paying tenant in on relatively short notice, and in an increasing rental market, they might even get a new tenant in that's prepared to pay even more. So instead of continuing to incur the risk that this tenant who has stopped paying will not pay you for two and then four and then six months... Students, particularly when they're first graduating, are a bad credit risk in terms of the landlords being able to ever actually collect that. So a landlord is faced with the dilemma of, "Do I incur only two months of rent that is owing to me by serving the notice to vacate the tenancy, and then needing to fill the place again on my own, or do I continue to let that liability rack up on this person. Who although I might get a judgment against him or her, will never actually be able to pay me that amount of money". That's why landlords will often go ahead and serve, it's called an N4 notice, will often serve the N4 notice to terminate a tenancy.

20:06 Matt: Okay, so that's thing one. Thing two feels a lot more of John Grisham-y, like it's like that... The scene in the movie where someone's going through old legal tomes and finds this obscure law and says, "Ah-ha, maybe this will work." Which is that?

20:21 Blair: So the second hail-Mary pass, and this one, we're now at the stage where it's most difficult for me to predict the outcome. This takes us back full circle to the fact that the law is going to have to craft novel answers for novel times. But that's the notion of frustration of contract. Basically, the doctrine of frustration says "that where the need for the benefit of any kind of contract has been removed by a completely unforeseen event". Sometimes you'll see the words "force majeure" used, sometimes you'll see the words "act of God" used, but the notion is, where a contract has become impossible to fulfill or impractical to fulfill for some completely unforeseen act of God or force majeure, that sometimes the law will step in and will relieve a party of the obligation to fulfill their side of the contract promise.

21:19 Blair: So in this case, it's a hail-Mary pass that students might be able to see say, "I signed this lease back in January anticipating that I would be in school for all of 2020-21. And then in March, with an emergency order came along, it told us we had to socially distance. Sometimes in May, all of a sudden we found out that our courses were going to be remote. I made the decision that I wouldn't return." That student may be able to argue as a defense once they're sued by a landlord that this effectively the contract was frustrated, that they couldn't gain the benefit of it, and therefore because of this unforeseen act of God that we call COVID-19, they should be relieved of the obligation to perform under the contract.

22:08 Matt: So clearly this hasn't been tested yet in courts? At least not...

22:12 Blair: No, I haven't seen any case yet where it's already gotten to the stage where in this particular pandemic somebody is looking at it. Typically when you're thinking of acts of God, it's what relieves a landlord from performance, for example, if the house burns down before the tenants ever show up. Theoretically the tenants could turn around and sue, saying, "Look, you promised to provide us a place to live, and I have incurred many more costs to find a new place at this late date." That's the kind of thing the landlord can say, "Look, there was a force majeure. Nobody anticipated it was going to happen. We should be relieved from performance." So too do students maybe have an argument here to say, "This was simply unforeseen." Now, and really what the courts are deciding when they decide this, is who should bear the liability or the risk or the lost income from an event that neither party foresaw at the time that they entered the contract, where the event was one of large significance and imposed by external forces that neither party could control.

23:18 Matt: Right. I think in tenancy law, there is a tendency to see... It's easy to find bad actors on both sides. It's not hard to go out there and find stories of terrible tenants, not hard to go out there and find stories of terrible landlords, and you tend to think of it as kind of an A versus B. But this is really... No one's the bad guy here, no one asked for a pandemic. So the courts are gonna have to decide who's left holding the ball.

23:43 Blair: Right, and it's much like people that are unfortunately losing their income right now, is that there is a loss to society and someone needs to bear that somewhere. So tenants are certainly going to say, "Why should I be required to come down to Kingston, and to fulfill and pay for a 12-month lease that I might not set foot in the house on a single day during my entire tenancy?" On the other hand, landlords can say, "We didn't anticipate this either. You signed a lease, we guaranteed the place for you. Well, why should we be the one to bear the loss of this?"

24:17 Blair: And so the courts are ultimately gonna be forced to make a societal choice on this. And again, I say this is a hail-Mary pass because it's only going to come up as a defense, almost as an excuse for, "Can you tell me why it is that you didn't pay your rent, and why it is that you felt you didn't need to perform your contractual obligations by paying the rent that you agreed to pay?" There is a slight chance that a court might see that a student just had no chance to defend against this, if you will, and excuse performance of the contract. But thereby all the courts will be doing is passing that loss onto the landlords. So it's very difficult to predict how such a case... And I'm confident that there will be several in every city in Ontario and across Canada and much of the world, is going to see decisions like this coming up as soon as the matters can be litigated, which of course cannot happen as long as the courts remain closed.

25:13 Matt: Right, and so it's kind of a parenthetical inside a parenthetical, because justice does not always move swiftly, and this is the sort of thing where I can only imagine there's gonna be... This is gonna be a huge decision, because let's loop back to the beginning of the conversation in precedent. As soon as there's a decision that the courts can turn to, it's gonna become the decision for everyone everywhere, unless the higher court decides that's not the decision that they're gonna go with. So this is...

25:43 Blair: That's correct. One of the things about frustration is that it's so fact-specific to the circumstances of the crisis, but also to the circumstances of the party. And it has occurred to me, for example, that typically frustration doesn't relieve a party where it's merely a question in delay of need for the contract. So, for example, if by next December this was all fairly nicely cleared up, and we think we could go back to something that look more like normal life, and therefore all the students were welcomed back with open arms to courses that were fully in-person again. A landlord's gonna be in a much better spot to say, "No, it's not truly frustration of contract, it's you didn't need the benefit for a short while, but you do now." So for that reason, I'm not even sure that we've got the tools yet to begin to guess how it might turn out. An awful lot of it is going to depend on what is the decision of faculties, to what extent is there going to be a mix of online and in-person courses in the fall, and most importantly, how long does this situation last for?

26:54 Matt: So this may not be a domino effect where one court decides on one case and it affect... It might be more of a city, sort of an institution to institution kind of decision process.

27:05 Blair: Yeah. And again, there's an awful lot of discretion to the judges even within the Precedential Stare Decisis System. There are some areas and this is an equitable remedy and they are far more discretionary than a judge. Where judges do have an ability to say, you know what, despite the fact that my colleague decided it this way, I'm not going to apply it this time because the facts here are a little bit different. The first student signed their lease in January, whereas the other one did so in March, and the first student was graduating in December whereas the second one needed the place in 2021 when in-person teaching resumed. So all of that to say, there is a large incentive, somebody has to bear this loss, and there is a large incentive for tenants, for students that feel that they won't be returning, to try and sit down now, and see if they can work it out with the landlord.

28:02 Blair: There is the possibility that there could be a compromise result, where, for example, both parties bear part of the loss and both walk away disgruntled, but not bearing the full amount of the loss. I'm also cognizant of what the Premier said yesterday with respect to commercial tendencies, where he referred to the commercial landlord, says "greedy landlords". And suggested to them that they better be prepared to be flexible or there could be a legislative solution to this. And students do represent a very engaged voting population that will continue to favor one party or the other for most of the rest of their lives. So it may very well be if there's too much litigation of this and too much of the student suffering that it might be that ultimately the government provides a legislative solution or perhaps even some kind of relief package to landlords or tenants something like the federal government has done for commercial leases on a federal basis.

29:02 Matt: What I'm hearing as the key takeaway here is while there are some fun ideas to kick around in terms of ways this might play out for students that don't return, and want to get out of their lease, ultimately the safest solution is to think about it, plan ahead and try to negotiate with your landlord, instead of trying to kind of wait it out and see what happens in the courts.

29:25 Blair: We know that the vast majority of legal disputes do end up resolving through settlement, and the primary feature of that is that the side know, each side knows exactly the risk that it's doing. The backlog of the courts when they do open again is going to be extensive and there's gonna be many disputes like this. So even from a student's point of view, they may be able to resist the landlord's demand for payment for a period of time, but nobody wants a lawsuit that could easily be in the tens of thousands of dollars hanging over their head for the next couple of years, and particularly where students are moving on from their time at Queens and starting their careers elsewhere. It's a bad time of life to be distracted. So there are both financial and practical upsides to trying to find some sort of solution to work it out.

30:20 Matt: Right. And I think this is as good a point to any to mention, this is not legal advice, and we are not representing anyone who's listening to this in any legal capacity. This is a conversation for entertainment purposes but it is absolutely not us offering actual legal advice to anyone who happens to be listening to this.

30:39 Blair: Yeah, I'm always concerned when I come and talk to you that somebody's going to interpret it that way. So I'm happy that you always throw out that reminder. Queen's Legal Aid is of course happy to sit down with any individual student and sort of assess what their situation is, but there is so much that is unknown here. The only thing I can say for certain is that there is risk on both sides and nobody could rely on anything that we said today is an absolute assurance of what the outcome is going to be, 'cause quite frankly I'm not sure at this stage.

31:11 Matt: Right. Well, thank you very much, Blair.

31:13 Blair: No, you're very welcome. I always enjoy it.

31:17 Matt: Thanks to Blair Crew. You can find out more about Queens Legal Aid at queenslawclinics.ca, the website of the Queen's Law Clinics in Kingston, Ontario. And you can find out more about the Certificate in Law, which sponsors this podcast at takelaw.ca. Our theme music is by Megan Hamilton. Thanks for listening.

Note: As the COVID-19 pandemic continues, we're posting some extra content about legal issues arising from the Canadian responses. Expect sporadic (and more frequent) episodes in the coming weeks!

It's a pandemic! Even today, Prime Minister Justin Trudeau mentioned "enforcement" as a measure to encourage compliance to social distancing and other pandemic best practices. But what are a government's emergency powers? How do they get to call them into force? And what do they let a government do? We're joined by Queen's Law PhD candidate Rory Fowler, an administrative law expert and former military officer, for our longest episode ever -- a comprehensive masterclass in emergency powers in Canada.

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Transcript:

0:00:00 Matt Shepherd: We are going to start by taking a trip back in time, I guess, to 1918.

0:00:04 Rory Fowler: I'm actually gonna take you back earlier than 1918, I'm gonna take you back to 1914. Because people start thinking about the War Measures Act and the War Measures Act was enacted on the 22nd of August 1914 for obvious reasons, Guns of August, World War One commences in essentially August of 1914, and the government enacts the War Measures Act because of the great war. Because it was a war unlike any other war that Canada or any other nation had fought, or at least that was the perspective. So enact the War Measures Act.

0:00:35 MS: Okay.

0:00:36 RF: And the anticipated use of the War Measures Act was for war, riot or insurrection, and it was in response to a war that had global consequences because even in 1914, the government saw that this was going to be a war that was different than other wars. Then after the war, in fact the... What is called the Spanish flu and I'm not gonna call it Spanish flu, because lately, there's been a certain notable individual who has chosen to refer to the current pandemic in what could be constituted as racist terms. I'm gonna refer to it as the influenza pandemic, of 1918.

0:01:14 MS: Right.

0:01:14 RF: And right there, there's a bit of misinformation, because it wasn't the influenza pandemic of 1918 it was the influenza pandemic of 1918 to 1920. It lasted almost three years. And there were crests with respect to the pandemic. It didn't happen all at once. As many people have been discussing in the media recently, it came, it left and it came back in greater force.

0:01:40 MS: Okay.

0:01:41 RF: So, let's look at what that pandemic did, just to give us the context. Certainly, the infrastructure of several countries had been adversely affected by the war, that meant their medical infrastructures, their civil response infrastructures had been adversely effected. There were large masses of people from different countries, all concentrated in Europe and certain other areas and then they went home to their home countries, taking the influenza with them.

0:02:05 MS: Okay.

0:02:05 RF: So a lot of people associate the end of World War 1 or the Great War, with assisting the spread of influenza. And that was actually the first big outbreak of H1N1. We think of the bird flew, the first H1N1 pandemic was actually in 1918. So you have hundreds of thousands of soldiers going back to places like Canada and the United States. One of the difficulties that we've got in looking at the historical context of the influenza pandemic of 1918 is that, for a variety of reasons the statistics that were gathered are adversely affected by a, the capacity to convey those statistics and to gather those statistics. Propaganda machines for governments trying to either downplay or exaggerate the influenza pandemic. And as a result, the numbers of people who died as a result of the influenza pandemic range from 17 million to 100 million. But the general figure that's associated with it is often 50 million people. Let's put that in context.

0:03:09 RF: At the time, there were slightly less than 2 billion people worldwide, or at least that's what the census has told us. So, 50 million deaths out of two billion people, that's about 2.5%

0:03:22 MS: Wow.

0:03:23 RF: Yeah, that's significant.

0:03:24 MS: Yeah.

0:03:24 RF: Here's what we have to put in the context for North America, for Canada United States. So Canada, according to various statistics I've looked at, Canada had approximately 50000 deaths attributed with... Attributable to the influenza pandemic. The United States suffered 675,000 deaths, as a result of the influenza pandemic. If we look at the populations relevant... Populations in Canada and the united States at the time, so at the time, the United States had slightly more than 100 million people, 103-106 million people, 1918-1920. So 675,000 deaths is approximately 0.6% of the overall population, the United States.

0:04:02 MS: Okay.

0:04:03 RF: Canada, had a population were around or just below 8 million, in that period of time. So 50,000 deaths again, is a fatality rate less than 1%. So, whereas the world-wide fatality rate was two and a half percent. Both Canada and United States, it was less than 1%. Just put in context, because that may be relevant to some of our discussion. The War Measures Act was already invoked in 1918 because of the great war.

0:04:29 MS: Right, right.

0:04:30 RF: So there was no invocation of any emergency legislation, because of the epidemic or the pandemic, because it had already been invoked for the purposes of the war, not for the purposes of pandemic.

0:04:40 MS: And we just hadn't revoked it yet?

0:04:42 RF: That's right.

0:04:42 MS: Okay.

0:04:43 RF: On top of that, you've got a massive response. And Canada, the United States, one thing, and I'm not a scientist, one thing that could have contributed to the fact that Canada, the United States, had a far lower fatality rate is because Canada, United States, if anything, our infrastructure had been aided by the war, because we cranked out in a total war context. We... Our industry had been oriented towards the war, the industries in Canada, United States had to a large measure, been nationalized if you will. The entire effort of the nation was toward war, particularly in Canada. And our infrastructure was not adversely affected by the war, to the same extent that France, Germany and European nations had been adversely affected. You look at the photos of World War 1 and the physical infrastructure had been adversely effected.

0:05:33 MS: Well, no one was blowing us up.

0:05:35 RF: That's right.

0:05:35 MS: Yeah.

0:05:35 RF: Well, no one was blowing up our country...

0:05:37 MS: Right, no one was blowing up Canada.

0:05:40 RF: That's right. So that puts things in context. So you've got a pandemic, a global pandemic, hence the term, "Pandemic", that is affecting a variety of countries for a variety of reasons, science was not as advanced then, as it is now, social media was not as advanced, so probably less panic, but equally there were challenges that the government faced. The government had already for four years at that point in Canada, had already been oriented toward total effort toward a particular objective. So they were able to shift gears and deal with the pandemic. I would be hesitant to suggest that that's the principal contributing factor to why the fatality rate in Canada and the United States was lower. But that certainly contributed to Canada's response.

0:06:32 MS: So you're saying that because we were coming from a place of total focus, it was easier for us to move to a place of equally total but different focus?

0:06:39 RF: That's one of the contributing factors, as well as the fact that our infrastructure had not been as adversely affected by the war as, for example, European nations, Northern African nations, areas in the Middle East. Plus Canada and the United States were technologically advanced then, we're technologically advanced now compared to many other places.

0:06:58 MS: Fair enough.

0:07:00 RF: But that is significant, because part of a government's response to an emergency is to place certain industries, certain factors, at government control. And we'll talk about that a little bit later when we talk about the Emergencies Act. So that's a good comparator historically, because it involves the use of emergency legislation, if you will, the War Measures Act was already in place. And it involves a pandemic that is not all that dissimilar from what we're facing now. There's a... We're talking about a flu-like virus, and we're talking about a pandemic, and we're talking about instead of returning soldiers bringing it back to Canada, we're talking about returning travellers bringing it back to Canada. And other reasons as well.

0:07:48 MS: So we've got the War Measures Act. What other legislation is there that deals with emergencies?

0:07:54 RF: So we no longer have the War Measures Act. The War Measures Act was replaced, and people always think of the War Measures Act. So the next time the War Measures Act was used was, obviously, World War II. And that's going to be relevant for some of our discussion down the road when we talk about the Charter, because one of the things done under the War Measures Act, for example, in World War II, was the segregation and eventually internment of, for example, Japanese Canadians or people of Japanese race, to use the terms that they used at the time. And that was a subject of review. And remember, there was no Canadian Charter of Rights and Freedoms at the time. There was no, even, Bill of Rights, which came in in 1960, but only on the federal level. There was only the War Measures Act. The War Measures Act was invoked, obviously, for World War II. Interestingly it was not invoked for Korea. It was not invoked any other time for war, and only the third time was invoked was the October crisis of 1970. And arguably that was for an insurrection as opposed to a war. So there were only three times that the War Measures Act was invoked, and two of those times were war. Under the War Measures Act in World War II, there were actions taken to restrict the liberty, significantly restrict the liberty, to the point of deportation of people of Japanese race, including people of Japanese race who were Canadian citizens or British citizens.

0:09:15 RF: And that was later the subject of a reference to the Supreme Court of Canada, which was subsequently heard by the Judicial Committee of the Privy Council, which was at the time, the highest court of appeal. And the Judicial Committee of the Privy Council upheld the decisions of... Or the judgments of the majority of the Supreme Court of Canada. But we'll get to that in a second. So what we've got now, by way of legislation is on the federal level, the Emergencies Act. And the Emergencies Act was introduced in 1988 and it can be viewed as being the successor to the War Measures Act. People think War Measures Act, and even nowadays when people talk about the governments reaction to an emergency, someone will pipe off about the War Measures Act, and it's like, "There's no such thing as the War Measures Act any more." It was essentially replaced by the Emergencies Act. That's at the federal level. But we have to remember, Canada is a federal constitutional state. They have more than one level of government. We've also got a provincial level of government, and at the provincial level, we've got the Emergency Management and Civil Protection Act under Ontario legislation. I'm an Ontario lawyer, I'm gonna talk about Ontario legislation. And up until June of 2006, that was called the Emergency Management Act, and in June... At the end of June 2006, it was amended to be called the Emergency Management and Civil Protection Act.

0:10:30 RF: The reason I mention that is, unlike the Emergencies Act, which has not yet been invoked, the Premier of Ontario has essentially invoked the Emergency Management and Civil Protection Act. And that's because we know, that in addition to the legislation I've just mentioned, under the Constitution Act 1867, which used to be the British North America Act until we patriated our constitution. Under the Constitution Act, 1867, there's a division of powers between the federal government and the provincial government. Section 91 of the Constitution Act, 1867 deals with the federal government. Section 92 deals with the powers of the provincial government. Section 91 also indicates that any residual powers, what we call residual powers: Peace, order, and good government. Any residual powers that are not expressly assigned to the provincial government fall to the federal government. So that means there are certain things that fall within the provincial realm and certain things that fall within the federal realm. And that's why we have an Emergencies Act at the federal level and an Emergency Management and Civil Protection Act at the provincial level.

0:11:33 MS: So how much of this ties into the fact that healthcare is generally something that's assigned to the provinces?

0:11:39 RF: Well, that's an important question, because it's not generally assigned to the provinces. So the Constitution Act... So if we turn to the Constitution Act, subsection 92, sub 7 expressly places the control of hospitals within provincial control. But that's not the only thing. And I know that's the first thing comes to mind, because we're talking about a medical pandemic. But consider the following. Subsection 8 of... So these were all under Section 92 which deals with provincial powers. Subsection 8 deals with municipal institutions. Can you think of any municipal institutions that might be affected? Just about all municipal institutions are currently being affected, because they're having to restrict the number of people that are actually providing those municipal services as a preventative measure. Civil rights under subsection 13, under the province. The administration of justice and the courts under subsection 14. Any local matters under subsection 60. So there's a great deal that falls under municipal control. In fact, our day-to-day lives are regulated far more by the province than they are by the federal government.

0:12:41 MS: So if we're comparing Emergency Acts, is the provincial Preparedness Act much more kind of relevant to us even than the federal one?

0:12:50 RF: Well, it's relevant, I'd suggest in a couple of ways. First off, the premier has declared an emergency. So what he's essentially done is he has triggered under... And if you give me a second, I'll give you the specific provision.

0:13:04 MS: So, you came in with a game plan and now we're jumping around.

0:13:06 RF: That's okay. As... Well, two quotes come to mind, right? One from my military background, which is "No plan ever survives contact with the enemy." Not that you're the enemy, but no plan ever survives contact with the enemy. My more favorite quote is probably from Mike Tyson. "Everybody has a plan until they get punched in the face." Which...

0:13:28 MS: Not that I'm thrilled about my part in these analogies, but yeah, we'll roll with that.

0:13:34 RF: It's a great quote. So under Section 7 of the Emergency Management Civil Protection Act, essentially, the Premier has invoked that legislation.

0:13:44 MS: Right, okay.

0:13:45 RF: And we have to remember that... And we'll get to this in a second, but the reason we've got emergency legislation is ultimately to grant the executive additional powers. Okay? So, Canada has three branches of government, most people are aware of that. Anyone who's done civil studies in high school will be aware that there's an executive, there's a legislature, and both at the provincial and federal level, and there's the courts. Those are the three branches of governments generally speaking. They will also be aware that in Canada because we are a constitutional parliamentary democracy, and that's both federally and provincially, that there's a bit of overlap between the executive and the legislature, right? Those who command the confidence of the legislature will form the executive.

0:14:32 RF: So, the Premier is both the head of government. Technically speaking, is the head of government provincially, and the Prime Minister is the head of government, he's not the head of state. Her Majesty, The Queen, is the head of state, represented at the federal level by the Governor General, represented at the provincial level by the lieutenant governors. But essentially, she takes the advice of her cabinet. So essentially, you've got the Premier, the Prime Minister, at the provincial and federal level that head both the legislature and the executive, but they have different powers.

0:15:00 MS: Right.

0:15:00 RF: And we also have to remember that because in a parliamentary democracy, because under the Constitution Act of 1867, Canada has a government much like the United Kingdom, although theirs until recently was a unitary state, meaning they only had federal levels, they didn't have provincial levels. There's been devolution, we won't get into that, that's very complex for our discussion. But essentially, we have a constitution much like that of the United Kingdom in terms of the distribution of powers.

0:15:29 RF: So, our executive is actually quite powerful. You compare that the United States where the executive is elected completely separate from the legislature. Their head of state is the President, their head of government is the Speaker of the House. And so the legislature, and particularly now where the legislature, particularly the House Representatives, is commanded by the Democrats and they've got a Republican president, if you can call him a president. Sorry, I got a little bit political there. [chuckle]

0:15:57 MS: So, we're moving around a bit.

0:15:58 RF: We're moving around.

0:16:00 MS: But have we kind of batted the circuit on legislation? There's the federal Emergencies Act, and then there's the Provincial... I don't remember the full name, but essentially, a provincial Emergencies Act.

0:16:07 RF: That's right.

0:16:08 MS: Is there any other sort of legislation extant that deals with these kinds of situations?

0:16:14 RF: Well, we have to remember those are very specific pieces of legislation that deal very specifically with emergencies, but they're not the only thing that apply to emergencies. So I've already mentioned other legislation that's relevant to emergencies.

0:16:24 MS: Yup.

0:16:25 RF: Starting with the Constitution Act.

0:16:27 MS: Right.

0:16:27 RF: So, the Constitution Act of 1867 divides powers. The Constitution Act of 1982 provides us the charter. Both of those as I've already mentioned are going to be relevant during any emergency, whether or not emergency legislation like the Emergencies Act is invoked. Because the charter is always going to be relevant to be relevant to the exercise of power by the legislature and by the executive, and the division of powers under the Constitution Act of 1867 will always be relevant.

0:16:53 MS: But it's really just those two pieces of legislation at the federal and provincial level that's kind of grant extraordinary powers in the event of...

0:17:01 RF: Those are the ones that are specifically designed to grant extraordinary powers to the executive.

0:17:05 MS: Right.

0:17:06 RF: Supervised by the legislatures at each level for the purposes of responding to an emergency, but those aren't the only pieces of legislation relevant to an emergency.

0:17:15 MS: Fair enough, okay.

0:17:16 RF: And one in particular that I'm gonna mention because we will talk about it down the road, is the National Defense Act. Now, I'm not mentioning that solely because I've been a soldier for 28 years and I've been a legal officer and I'm familiar with it, but because when people think of emergencies, one of the first things that you think of is the charter, one of the first things they think of is the War Measures Act, now the Emergencies Act, but they also automatically think of, "Well, what about the Canadian Forces?"

0:17:38 MS: Right.

0:17:38 RF: Right? Can you think of any times in the past, say, 20 years, where the Canadian forces has deployed internal to Canada? So domestically, in response to emergencies?

0:17:51 MS: Other than the October crisis which pre-dates that, I cannot.

0:17:57 RF: So, we know that the Emergencies Act has been around for slightly more than 30 years. You can't think of any other time the Canadian forces is deployed in the last 20, 30 years in response to emergencies?

0:18:06 MS: Within Canada?

0:18:07 RF: Within Canada.

0:18:08 MS: Not specifically. I can think of... There are definitely times I can think of. There was flooding in Quebec...

0:18:14 MS: There was flooding in Quebec...

0:18:16 MS: And the forces helped. I guess, I got in my head kind of a distinction between deployment and helping out, which is probably a false division. I can't think of them being militarily deployed in Canada.

0:18:29 RF: Well, and that's an interesting point because you're drawing a distinction. Most Canadians, I suggest would not. So think back to the late 1990s, in 1998. The Red River floods in Winnipeg.

0:18:39 MS: Right.

0:18:40 RF: Right? We deployed... The Canadian forces deployed two brigades. And essentially, two brigades worth of troops and the divisional headquarters to combat the floods, to assist in combating the floods.

0:18:53 MS: Right.

0:18:53 RF: Right? We had in Southern Manitoba, we had deployed probably in the vicinity... I can't remember the exact figure, but we had deployed in the vicinity of 4000, 4500 troops.

0:19:07 MS: Okay.

0:19:08 RF: At least.

0:19:09 MS: And that is a great thing to do when there is a physical thing happening that you can solve using physical means.

0:19:17 RF: Yup.

0:19:18 MS: But a virus isn't really something you can use the military against.

0:19:23 RF: And that's an interesting point, we'll get to that down the road. But would you consider the Red River floods to have been an emergency?

0:19:30 MS: Yeah, absolutely, yes.

0:19:31 RF: What about the ice storm of the late 90s?

0:19:33 MS: Yup, I was there, I was in Sherbrooke in '98 and... Yup, no, definitely an emergency.

0:19:38 RF: Right, and the Canadian forces were also deployed. In fact, more soldiers were deployed in response to the ice storm than were deployed in response to the Red River floods.

0:19:44 MS: Right.

0:19:46 RF: And I was on both of those deployments. And we've also very recently in the Saguenay floods and just this year, deployed soldiers, and that's the term that the Canadian Forces use, "Deploy soldiers."

0:19:57 MS: Okay.

0:19:58 RF: But we already know that the Emergencies Act has never been used by the Federal Government. It's never been invoked. So that wasn't by virtue of the Emergencies Act, that was by virtue of a specific provision under the National Defense Act.

0:20:10 MS: So, and just to round that out, you were saying the federal government's never invoked the Emergencies Act. You mentioned earlier that the Premier has kind of invoked...

0:20:18 RF: No not kind of...

0:20:19 MS: He is absolutely...

0:20:21 RF: By declaring an emergency, that is necessary under Section 7 of the Emergency Management Civil Protection Act.

0:20:26 MS: So chapter inverse, we can say he absolutely has invoked it at this point?

0:20:30 RF: That's right.

0:20:31 MS: Okay.

0:20:31 RF: So all of these other emergencies where the Canadian Forces come out. What about Oka? That was one. And that's distinction. That's a distinct deployment from, say the Red River floods and the ice storm and the Saguenay floods.

0:20:48 MS: Right.

0:20:48 RF: Right? An entire brigade of the Canadian forces was deployed and the troops were deployed with weapons.

0:20:56 MS: And that definitely crosses my mental line into... Yeah, that's a militaristic one that I hadn't thought about.

0:21:00 RF: Right? And that was a domestic deployment.

0:21:01 MS: Right.

0:21:01 RF: Not under the Emergencies Act.

0:21:03 MS: Okay.

0:21:04 RF: So what we've got is a distinction between public service, which the Canadian forces can perform by virtue of Section 273.6 of the National Defense Act. And aid of the civil power, which is covered under Sections 274 to 285, National Defense Act, not to be confused, two very distinct circumstances.

0:21:23 MS: Right.

0:21:24 RF: So under Section 273.6 of the National Defense Act, the Public Safety Minister can request the Minister of National Defense to provide Canadian forces in assistance for aid to the civil power.

0:21:37 MS: Okay.

0:21:39 RF: Equally, attorneys general or solicitors general of provinces can make the request through the federal government.

0:21:45 MS: Right.

0:21:45 RF: Equally, but distinctly, provinces or even the federal government, can request from the Minister of National Defense that the Canadian forces perform a public service under Section 273.6 of the National Defense Act. Public service is not aid to civil power, aid to the civil power. Aid to civil power is when the troops come out like Oka. When they're armed, when they're assisting with... And the October crisis would be another example of aid to the civil power, but it was done under the War Measures Act. Canadian forces is often called upon to provide public service.

0:22:20 MS: Right.

0:22:20 RF: Where... And if you look at, for instance, and I'll use the floods in... The Red River floods in the late 90s as an example, because it was a highly successful operation and it's because there were certain skill sets of the Canadian Forces bring the bear. People made jokes about when the mayor, the former mayor of Toronto called out the troops because of the snow storm.

0:22:42 MS: Right.

0:22:43 RF: The Canadian forces is not there to perform public service that can be performed by a municipal or provincial institutions.

0:22:49 MS: Yeah.

0:22:50 RF: That's a waste of time, it's a waste of effort and that's a waste of a fairly limited resource. But there are certain skill sets that the Canadian forces have and certain equipment that the Canadian Forces have, that assists with a public service. One of the big things that the Canadian Forces brings to bear is planning. We train our officers, predominantly officers, but not just officers in planning, we do a lot of training in planning. And so, during the Red River floods, one of the main purposes of deploying the first Canadian division headquarters, was to plan for the eventual evacuation of Winnipeg, we came to that. That's one of the main efforts that they put into it. And having seen how municipal organizations and provincial organizations do their planning, it's not a bad thing that they bring out headquarters from the Canadian Forces to assist with planning, in fact, a great many of my former colleagues who have also retired from the Canadian Forces, who were senior officers, have gone into emergency preparedness or other jobs, because they possess those skills for planning. Okay.

0:23:47 RF: Equally, large number of troops, who can work in a concerted manner, who can work in an organized fashion, who have access to vehicles that assist them in doing that, made the response to the Canadian Forces to the floods, a very successful operation. So that's one of the reasons why a provincial government or municipal government through their provincial government, might turn to the Canadian Forces for public service. But those are examples of the response to an emergency, often a localized emergency, under legislation, other than what would be characterized as emergency legislation.

0:24:22 MS: Okay.

0:24:25 RF: So, we've talked a little bit about relevant legislation. And so there's a higher review of legislation. Obviously constitutional legislation is involved, so the Constitution acts 1867-1982, including the Charter. The Federal and provincial legislation, Emergencies Act, the Emergency Management and Civil Protection Act, and even federal legislation like the National Defense Act can come into play when you're dealing with an emergency. But then we have to ask ourselves, what constitutes an emergency? So we can look at the normative definition of an emergency. So, a normative definition is a serious unexpected and or dangerous situation requiring immediate action.

0:25:07 MS: Right.

0:25:07 RF: When we think emergency, that's generally what we're gonna be thinking about.

0:25:11 MS: Okay, yeah.

0:25:12 RF: But of course legislation will have its own definitions, will have its own provisions. So let's look, because most people think of the Emergencies Act, although as I've already said, provincial legislation is at least as important and quite frankly, is more likely to be invoked than the federal legislation, and I would also suggest that legislation will be invoked, when it needs to be invoked. Because as we already know, the federal government, the executive branch of the federal government, already has significant powers under existing legislation. They don't need to invoke the Emergencies Act to do a variety of things that they've already done. For example, one of the things that they've done to relieve pressure on people is they've indicated that they will delay the deadline for submission of income tax returns to use button example. They have delayed that by essentially an additional three months. And they've done so, arguably, directly because of the COVID-19 crisis.

0:26:10 MS: Yup.

0:26:11 RF: They didn't need to invoke the Emergencies Act to do that. They've got the power to do that themselves.

0:26:15 MS: So what is the Emergencies Act for, then? What does it let them do that they don't already have access to?

0:26:22 RF: Well, there's four types of emergencies that are expressly identified under the Emergencies Act. And in a lot of ways, the Emergencies Act represents an evolution from the War Measures Act, right. The War Measures Act in 1914, was conceptualized as legislation allowing the government to deal with total war.

0:26:41 MS: Right.

0:26:42 RF: A lot of people criticized Trudeau, Sr. In invoking the War Measures Act in the October crisis because it wasn't really designed for that, although, there's arguments that it was designed for not just war but war, riot and insurrection. And it was a crisis in 1970, but it was not particularly agile legislation with respect to responding to the types of emergencies that we could anticipate in a modern sense. And so, the Emergencies Act represents an evolution in emergency legislation and it identifies... It's got six sections, obviously for six parts. Part 1 deals with sort of introductory clauses including definitional clauses, but it identifies four types of emergency and each one has its own part. So, under Part 2, it deals with Public Welfare emergencies. And we'll be getting back to that, because that's what we're dealing with, with COVID-19, I would suggest.

0:27:37 MS: Yup.

0:27:37 RF: Part 3 deals with public order emergencies.

0:27:40 MS: Okay.

0:27:40 RF: One, if we're looking historically, the public order emergency could be characterized... The October crisis would have been a public order of emergency, if that legislation had existed. Oka could have been characterized as a public order emergency. Part 4 deals with international emergencies. Not war, because Part 5 deals with a war emergency.

0:28:00 MS: Okay.

0:28:00 RF: Okay, so an international emergency and arguably COVID-19 is also an international emergency. Equally, the global war on terrorism could have been characterized as an international emergency, but remember, the Emergencies Act was not invoked for the global war on terrorism or the global war on terror.

0:28:20 MS: Well, none of this.

0:28:21 RF: None of this was invoked. This has never been invoked.

0:28:23 MS: Right.

0:28:24 RF: So right now, and I would suggest the main reason the Prime Minister has responded saying that well, they're looking at whether or not they need to invoke the Emergencies Act is because A, they anticipate the people are gonna ask about it and people have been asking about it. The minute this happened, people start asking about, "Well, you gonna invoke the Emergencies Act?" So if we look at the structure of the Emergencies Act 'cause it's a useful point of discussion, there are significant similarities between each of those four parts. So, parts two, three, four and five. They all have the same structure. They all have provisions dealing with interpretation. Provisions dealing with the declaration. Provisions dealing with the orders and regulations that may be made under that part. Provisions dealing with the revocation, continuation and amendment of the declaration. The need for consultation both provincially and with parliament or with their legislatures and the expiration and revocation of the declaration. So they all mirror each other with very nuanced differences.

0:29:24 RF: And if we look at the legislation... So, I've already mentioned that if the Emergencies Act were invoked by the federal government, by the Prime Minister, by the executive at the federal level, it would more than likely be under Part 2 as a public welfare emergency. I would be extremely surprised if they invoked it under any of the other parts. So if we look under Section 8, for example, of the Emergencies Act. Section 8 deals with the various additional powers that are granted to the executive. If a declaration of a public welfare emergency is in vote. So, for example it permits the executive to regulate or prohibit certain types of travel.

0:30:05 MS: Okay.

0:30:06 RF: It empowers the executive to essentially compel evacuation from certain areas. And remember, I've already mentioned that there is other legislation that's relevant, including the Constitution Act of 1867. In a lot of these cases there's going to be potential either conflict or overlap between the exercise of federal powers and the exercise of provincial powers, which is one of the reasons why each of those parts of the emergency at each type of emergency requires consultation between... And the way it's characterized, between the Governor and Council, which is the executive at the federal level, and the left tenet Governor in council, which is the executive at the provincial level. What it's really saying is the federal executive, if it's going to do certain things under the Emergencies Act that are going to overlap or impinge upon the exercise of the authority by provincial legislation or provincial executive, they need to consult with them. And frankly they're doing that now.

0:31:01 MS: In theory. They're gonna overlap, right? What you're describing doesn't sound like there's any chance it wouldn't overlap.

0:31:07 RF: Absolutely. And this is common in Constitutional Law. There's always going to be overlap, and that's one of the reasons why it's important to remember that at the end of the day, the residual power, particularly peace, order and good government falls to the federal legislation. At the end of the day, the protection of the health of the state of Canada falls to the federal government, but the Emergencies Act, which we have to remember any legislation passed by the federal government has to be consistent with both the Constitution Act 1867 and the Constitution Act 1982. Broadly speaking, what most people are gonna focus on in terms of the Constitution Act 1867, it has to be consistent with the division of powers.

0:31:45 MS: Right.

0:31:45 RF: In other words, the federal legislature, Parliament, can only enact legislation within its scope of authority, pardon me, scope of authority under the Constitution Act 1867. Additionally, any legislation that passes has to be consistent with the charter under the Constitution Act 1982.

0:32:01 MS: Right.

0:32:03 RF: So we look at Section 8 of the Emergencies Act, and we see that the federal government or the federal executive upon invocation, of an emergency can regulate or prohibit travel. It can compel evacuation. It can regulate the distribution of goods, which is vital in a pandemic. It can make emergency payments. It's not always bad. So the invocation of emergency legislation is not always about doing things and inhibit people's liberty, inhibit people's freedom that can be viewed as being an infringement of our rights. It also empowers the executive to make emergency payments.

0:32:38 MS: What's a payment?

0:32:39 RF: So it's very broad legislation. But for example, if they're going to regulate the distribution of goods, it also empowers them to ensure that there's proper compensation for anyone adversely affected by the compulsory distribution of goods.

0:32:53 MS: Okay.

0:32:53 RF: It can make emergency payments to organizations, to people, to provincial governments to assist with the response to the pandemic.

0:33:01 MS: Right.

0:33:03 RF: It gives them emergency powers to create shelter. Now a lot of these things can already be done by the executive right? Both at the federal level and the provincial level. They can create shelters. They can make payments anyway. But in addition to the existing powers that are granted to the federal executive, what the Emergencies Act also does under Section 8 is it uses punishment to enforce compliance. Right? So for example, right now the federal government has said, "We're gonna limit... We're gonna limit cross-border travel." They don't need the Emergencies Act to do that, because they also have the Canadian Border Services to do that. But if Section 8 is applied, if the Emergencies Act is invoked at the federal level, all of these powers and all of these prohibitions that can be placed by the government under Section 8, because we're dealing with a public welfare emergency or potential public welfare emergency, what it also does is it allows them to use coercive powers, right? Punishment either by prosecution, for a summary offense of prosecution, by indictment for contravention of those. So right now, a lot of the restrictions that are being put in place are either permissive or are recommendations.

0:34:24 MS: Right.

0:34:24 RF: Right? So the Emergencies Act is a hammer at the end of the day. But it's a hammer that also has certain aspects of benevolence. But it is not necessarily legislation that must be invoked for the governments to do their job. And that's why I'd suggest that it's... That's why within this context, the provincial government has seemingly invoked the Emergency Management and Civil Protection Act because a lot of what is being done right now is... Are measures that fall within the provincial scope of authority. For the federal government to get involved, they're gonna be focused on the welfare of the nation as a whole. And in fact it would be problematic, for the federal government to focus on individual provinces. That's why there are provincial executives, that's why there are provincial legislatures. So what the federal government must look at is What do we need to do to protect the life of the nation as a whole? What do we need to do to support the provincial governments in providing their services, right? Because if we look at healthcare, we have to remember that healthcare by virtue of the Constitution Act 1867, some section 92 sub 7 places the control or the management of hospitals and medical administration in the province's hands.

0:35:46 MS: Right.

0:35:46 RF: Right? But there is federal legislation that deals with health care, Canada Health Act. That's about money. Canada Health Act is all about the money.

0:35:54 MS: Does anything in the Federal Emergencies Act allowed them to claw some powers back from the provinces?

0:36:00 RF: No. Because it's ordinary legislation, right?

0:36:01 MS: Right.

0:36:01 RF: So the powers of the provinces are vested in the Constitution Act 1867, the supreme law of Canada.

0:36:08 MS: Right.

0:36:08 RF: Right? So with or without the emergencies Act, the federal government and the federal executive could never infringe on the authority of the provinces. Right?

0:36:20 MS: So hospitals...

0:36:21 RF: They couldn't pass legislation that would permit them to do that because it would be contrary with the Constitution Act 1867.

0:36:26 MS: So in Ontario, regardless of what the federal government does within Emergencies Act, the administration of healthcare is gonna remain Ontario's responsibility.

0:36:33 RF: That's right.

0:36:33 MS: As a for instance.

0:36:34 RF: That's right.

0:36:34 MS: So essentially, the Emergencies Act kinda gives the Federal Government the ability to super power its existing powers, but it doesn't actually take anything away from the provinces except when they overlap, and even then the federal government has to consult with the provinces first.

0:36:50 RF: Yeah, the best way to look at emergency legislation, not just at the federal level but federal and provincial level is that legislation... Remember legislation or enactment of statutes falls to the legislatures. Whether it's parliament at the federal level or the provincial legislatures, right? The sovereign entity that enacts laws in Canada is the legislative branch of government.

0:37:14 MS: Right.

0:37:14 RF: The executive is often empowered by legislation, to make regulations or to regulate, but they don't... The executive whether it's at the federal or provincial level, does not make laws. Right they make subordinate laws, regulations, orders in council. But they don't make statutes. Statutes are enacted by the legislatures. So the best way to look at emergency legislation is it grants powers to the executive, it is an enactment by the legislature, whether it's federal or provincial that grants powers to the executive that the executive would not otherwise have. It's about transferring a degree of power to the executive that would normally fall to the legislature, to exercise by enactment and that's why it's important to remember that, and again, using the Emergencies Act as an example, there are certain provisions that are vital within that legislation to remind us that at the end of the day the ultimate sovereign power... Now the ultimate sovereign power people would argue is the people, but through representative democracy, the legislatures.

0:38:21 MS: Right.

0:38:22 RF: So this Part 6 of the Emergencies Act. So we talked about Part 1 was the introduction, parts two, three, four and five deal with the four types of emergencies that we've discussed. Part 6 deals with parliamentary supervision of an emergency. And that's important because under the legislation, the executive, it's not a carte blanche for the executive. At the end of the day, the executive or the governor and council, can invoke the Emergencies Act by declaring an emergency, but at the end of the day, Part 6 deals with parliamentary supervision.

0:39:00 MS: It's worth pointing out, you've got a copy of this in your hands, right now.

0:39:02 RF: I do.

0:39:03 MS: And it's always worth mentioning that this stuff is not a mystery. Anyone can find and download and read these documents.

0:39:09 RF: The beauty of legislation both federally and in Ontario is it's publicly available on the internet. And God knows everyone's stuck at home on the internet, watching YouTube videos of Jimmy Fallon and Jimmy Kimmel, in between those of watching Jimmy Fallon awkwardly deal with his children on a YouTube video, people can check out Provincial and Federal Legislation Online and it's worthwhile them checking it out and there's a lot of news releases to deal with it.

0:39:34 MS: As I'm fond of saying it's surprisingly readable stuff. It's not impenetrable gobbledygook, it's actually pretty comprehensible, if you wanna just sit down and spend some time with it.

0:39:45 RF: And it's worthwhile, because people will... People'll go to Reddit, or they'll go to other areas and try and get information; it's far more valuable to go to the source. So if you wanna know what the Emergencies Act says, go to the Department of Justice Laws website, which is quite easily navigated on the Internet, provided you've got an Internet connection, and take a look at what the Emergencies Act says.

0:40:11 MS: So you've now got Part 6, I'm assuming.

0:40:14 RF: Well, I've got the entire act printed off before me, but what I want to do is take a look at Part 6, which deals... It's actually entitled, "Parliamentary Supervision." And one of the first provisions that you find within Part 6 is section 58, which deals with the consideration of declaration of an emergency by Parliament. And it's worthwhile reading out certain provisions, because I'll take a look at subsection 58 sub 1 which says, "Subject to subsection 4, a motion for confirmation of a declaration of emergency signed by a minister of the Crown together with an explanation of the reasons for issuing the declaration and a report on any consultation with the lieutenant governors in council of the provinces with respect to the declaration shall be laid before each House of Parliament within seven sitting days after the declaration is issued." "Shall," that's an obligation placed upon the executive.

0:41:09 RF: So remember, under each of those parts that deal with an emergency, so Part 2 that deals with a Public Welfare Emergency, as I mentioned previously, there's a provision under there that deals with compulsory consultation between the federal executive, represented by the Governor in Council and the lieutenant governors in council. And what we're talking about, if this were invoked, if a public emergency because of COVID-19 were invoked at the federal level, that is consultation with all of the executives, all of the lieutenant governors in council of all of the provinces.

0:41:42 MS: And you got a week.

0:41:43 RF: And you got a week.

0:41:44 MS: Is... What's that say? .

0:41:44 RF: And... But you've got a week after the declaration is invoked for that consultation, for that motion, to be placed before the Houses of Parliament; we've got the Senate, and the House of Commons, so there's two Houses of Parliament. But that doesn't mean there isn't consultation going on right now, in fact, the consultation that is anticipated within the legislation is consultation in advance of the declaration, and we can bet that for the past week or two, at the very least, there's been consultation between the federal executive and all of the provincial executives. They'd be fools not to, quite frankly, but even without the legislation... But that's what's anticipated within the consultation.

0:42:23 MS: Just for the sake of completeness, when we say, "provincial," we mean provincial and territorial, correct?

0:42:29 RF: We do, but we have to remember that the territorial governments are a little bit different than the provinces. They're not exercising section 92 powers, because they're not provinces.

0:42:42 MS: Oh, I did not know that.

0:42:44 RF: So it would probably be a bit of a tangent, one tangent too many. But the territories ultimately fall under federal legislation, ultimately.

0:42:55 MS: Okay, I've learned something... I've learned many other things today, that is one thing among them.

0:43:00 RF: So subsection 2 of section 58 says, "If a declaration of emergency is issued during a prorogation of Parliament or when either House of Parliament stands adjourned, Parliament or that House, as the case may be, shall be summoned forthwith to sit within seven days after the declaration is issued." And the... Probably one of the questions you'll ask me is, "Does that mean everybody?" No, not necessarily. Here's what... And in preparation of this, here's one of the things that I learned that I was not acutely aware of; to have quorum in the House, you only need 20 sitting MPs.

0:43:36 MS: That's not very many MPs.

0:43:37 RF: That's not many at all. But we have to remember we've got a minority government.

0:43:40 MS: 20?

0:43:42 RF: 20.

0:43:43 MS: 20?

0:43:43 RF: 20.

0:43:43 MS: Do they have to have representation from across the country in a certain way or...

0:43:49 RF: That's not something I feel qualified to comment on, but...

0:43:51 MS: Bang out the GTA members and call it a day. Wow. Okay.

0:43:55 RF: But we have to remember we're dealing with a minority government, and we're dealing with a government that's gonna be sensitive to the need to consult broadly.

0:44:03 MS: Yeah, absolutely. Yeah.

0:44:04 RF: So I would anticipate that if Parliament were convened, that the executive would make sure that they had representation across the country, from across the country, and from across the pro... The political spectrum.

0:44:17 MS: From a re-electability standpoint, you wanna be the guy that's not there? I mean...

0:44:22 RF: Or do you wanna be the guy that tries to sneak it by?

0:44:25 MS: Yeah, no.

0:44:25 RF: No. Because, let's face it, from a political perspective, the current government is being judged by the Canadian people on how they handle this. So section 58 deals with the summoning of Parliament and placing the motion before Parliament. Because at the end of the day, under the Emergencies Act, Parliament in its supervisory role can revoke the declaration. So the declaration can be made by the executive, but Parliament does have the power to revoke it. Remembering that if we were dealing with a majority government... So think back to a majority government, saying that Parliament can supervise the executive is a bit like saying within a household, when the parents are telling the kids how it's time for bed, that's like saying the mother supervises the father. If you've got an executive that commands the majority of the House, the majority of the House is probably going to do what the executive wants to do. That's not what we're dealing with right now, but we're also dealing with a Parliament that I suspect would understand the importance of dealing with an emergency. But certainly, the difference for this Prime Minister Trudeau compared to his father is he's not commanding a majority of the House at a time when he's contemplating using the Emergencies Act.

0:45:51 RF: And so at the end of the day, Parliament can be... Or the House of Commons can be reconvened, but it's up to the individual party caucuses to determine whether or not they're going to be present. You can't have a prime minister who engineers a circumstance where the majority of those MPs that are in the house are from his party, because he doesn't control the caucus of another party.

0:46:21 RF: So what we've got here is... And one of the things that the executive is going to consider is, if we do invoke this, first, we have to consult with the provinces, we have to have a plan. And we have to have consulted with the provinces in the development of the plan. And we have to make sure that if and when we invoke the Emergencies Act, A, that we actually need to. Because thus far, they've been able to react without having to invoke the Emergencies Act. And if we deem that it is necessary, we have to do so in a fashion that allows Parliament... Allows us to comply with the obligations under the Emergencies Act to have Parliament authorize to contain an emergency.

0:46:58 MS: Right.

0:47:00 RF: Now another thing to bear in mind is, under the Emergencies Act, there's a sunset clause. An emergency declaration or a declaration of an emergency only last for 90 days. Now, that can be renewed and it can be renewed indefinitely. But there is a sunset clause which forces ongoing consultation, which forces ongoing supervision of Parliament, and that's there for good reason.

0:47:19 MS: Yeah.

0:47:19 RF: Right? Because we don't elect dictators.

0:47:22 MS: Right.

0:47:22 RF: Right? And so, that gives you a general overview on how the legislation works, we're not gonna go in depth into it. There's actually an annotated text book that deals with the Emergencies Act, which I imagine many people in the Department of Justice now are looking over in great detail. And we have to remember that both at the federal and provincial level, there's large numbers of lawyers that work for the government that are gonna be examining this as well to make sure that there's compliance, right?

0:47:50 RF: Because at the end of the day, despite some of the criticism that public commentators like myself might make about whether or not the rule of law is being respected, and God knows I've done that from time to time, whether or not the rule of law is being respected by the executive, there's going to be efforts made both at the federal and provincial levels to ensure that there's compliance with the rule of law. And since we're talking about the rule of law, we can go to the fifth point that I mentioned which is the impact of the charter, which is where everybody's mind immediately goes when they think of an emergency. But as I hope I've demonstrated, you need to first consider a bunch of other factors before you go straight to the charter.

0:48:26 MS: Right.

0:48:27 RF: So, here's what's interesting about the charter, right? The Canadian Charter of Rights and Freedoms was created by, again, the first Prime Minister Trudeau, the same guy who invoked the War Measures Act in 1970, amid a great deal of criticism. Those of us that remember it think back to, "Yeah, just watch me.", right?

0:48:48 MS: Yup.

0:48:48 RF: This is a guy who was bold in his action, this was a guy... He was the father of the Canadian Charter of Rights and Freedoms, as well the Patriation of the Constitution. In the same breath, we was the guy that invoked the War Measures Act during something other than war, amid much controversy and criticism. We have to remember that the Canadian Charter of Rights and Freedoms does not include an express provision dealing with derogation from the rights during an emergency. And I mention that because one of the inspirational pieces of legislation on the global stage upon which the Canadian Charter of Rights and Freedoms was based was the European Convention of Human Rights, which is now 70 years old.

0:49:30 RF: And the European Convention on Human Rights was generally a brainchild of British jurists, although there were others involved as well. But after World War II, there was a view that maybe we should have something that will govern human rights in Europe since there were some human rights violations during World War II. And certainly, the European Convention on Human Rights, not solely the European Convention on Human Rights, was an inspirational piece of legislation for the Canadian Charter or Rights And Freedoms.

0:49:57 MS: But it does have some sort of a emergency escape hatch.

0:50:00 RF: Not some sort of an emergency, it's got an express provision the deals with emergencies. Article 15 of the European Convention on Human Rights is entitled derogation in time of emergency. In time of war or other public emergency threatening the life of the nation, any high contracting party, and a high contracting party, for those that are unaware, means a country, a sovereign state. So, Canada is a high contracting party, not a high contracting party of this legislation, but for example, the United Kingdom is a high contracting party for the European Convention on Human Rights.

0:50:30 RF: So in time of war or other public emergency threatening the life of the nation, any high contracting party may take measures derogating from its obligations under this convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. And it goes on.

0:50:51 MS: Huh.

0:50:51 RF: There are some exceptions, right? So, there is no right of derogation from Section 2, which is the right to life. There is no right of derogation from... Sorry, not Section 2, Article 2, there is no right of derogation from Article 2. There is no right of derogation from Article 3, there is no right of derogation from Article 4, Paragraph 1, and there is no right of derogation from Article 7.

0:51:21 MS: So there's certain inviolable rights, but there's others that maybe we can get a little fuzzy on if there's an emergency.

0:51:26 RF: That's right, those are important. So, Article 15 generally permits derogation of certain rights during war or other public emergency threatening the life of the nation of the high contracting party.

0:51:39 MS: But the key point you're making is our charter doesn't do that.

0:51:42 RF: That's right. But since our charter was influenced significantly by the European Convention of Human Rights, from time to time, the Supreme Court and they're selective about this, but if we look at what those non-derogable rights are under Article 15 of the European Convention on Human Rights, so even though they can derogate from certain rights, they cannot derogate from Article 2, which is the right to life. There is an exception under Article 15, and that's except death resulting from lawful acts of war.

0:52:12 MS: Okay.

0:52:12 RF: For obvious reasons, because Article 15 is... Is dependent upon whether there is an emergency or war. So, obviously people do lose their lives in war, and there's a whole regime that deals with when that's lawful, but just because you're in a war doesn't mean you can smeary execute people who you don't like. Right?

0:52:34 MS: Right, yeah.

0:52:35 RF: That's one of the protections. Nor can you derogation from Article 3, which is the prohibition against torture. There's a non-derogation from paragraph one of Article 4, which is the prohibition against slavery. We have to remember that Article 4 of the European Convention on Human Rights deals with slavery and forced labor. So, Article 15 says there's no derogation from paragraph one, which deals with slavery, but there can be compelled labor during times of an emergency. And Article 7 which deals with probation against punishment without law. And so, if we look at the Canadian Charter of Rights and Freedoms, there is no express provision like Article 15 under the Canadian Charter of Rights and Freedoms, but there is Section 1, which states that certain rights in fact, any of the rights under the Canadian Charter of Rights and Freedoms is subject to limitation. So there are no absolute rights under the Canadian Charter of Rights and Freedoms because Section 1, which applies to all of those rights, states that limitations can be placed on those rights that are reasonable within a free and democratic society.

0:53:43 RF: And again, we get back to that context, because the limitation of rights in a free and democratic society will often be dependent upon the context in which those rights are being applied, as we know from Thomson Newspapers from over 20 years ago, Justice Bastarache tell us, "That context is the indispensable admin to the proper characterization of the objective of impugned legislation in determining whether or not it's justified. And that dealt with." So that quote from Justice Bastarache dealt with the application of Section 1 in Thomson Newspapers from 1998. So, even though there isn't an express emergency derogation provision under the Canadian Charter of Rights and Freedoms, generally speaking, you're gonna turn this to Section 1. But before you turn to section 1, certain rights have their own internal test. So Section 2 which deals with freedom of expression, freedom of assembly has its own internal test. Section 7, the right to life, liberty, security of the person, not to be deprived thereof, except in accordance with principles of fundamental justice.

0:54:49 RF: So, to use that as an example, people are deprived of liberty all the time, right? They're deprived of security of the person, from time-to-time. I served nearly 28 years in the Canadian Forces from time-to-time, her majesty required me to deploy overseas on operations. Was my liberty infringed on the fact that Her Majesty ordered me to deploy to Afghanistan? Yeah, I didn't have the choice I was ordered to deploy. Do you think my security, the person was adversely impacted by my deployment to Afghanistan? I would say yes. But I would not suggest that my section 7 right was infringed, and that's because I was deployed in a manner that was consistent with principles of fundamental justice, starting with the fact that I voluntarily joined the Canadian Forces.

0:55:35 MS: Right.

0:55:36 RF: Knowing what I was getting into. So, when you serve in Her Majesty's Forces, raised for the defense of Canada, you are subject to unlimited liability, or at least in the regular force... Always subjected to unlimited liability. That means, I can be deployed where Her Majesty requires me to be deployed, I can be required to use lethal force, and I can be required to be vulnerable to the use of lethal force against me, but I did so voluntarily. So there are internal tasks, applicable to rights under for example, Section 2 and Section 7.

0:56:10 RF: The way that the charter works is, if there is an infringement of a right, it is incumbent upon or the illness is placed upon the applicant or the right holder to show how the government, and it has to be the government. So the executive, the legislature, federal provincial has infringed that right. Whether it's right of assembly, right of freedom of expression under section 2, right to liberty or security of the person under Section 7. First, that right holder has to prove on a balance of probabilities, that that rate was infringed.

0:56:43 RF: Once the applicant proves that, then the owner shifts to the government to prove under Section 1, whether that infringement was consistent with principles under a free and democratic society, and that's where that context is gonna come in. That's what Justice Bastarache was talking about in Thomson Newspapers that context is gonna dictate that, right?

0:57:07 RF: So, the derogation or the infringement of charter rights may or may not be defended under Section 1, depending upon the context. And that Section 1 task for those people who are not indoctrinated in the law, goes back to an Oakes case and a little bit of a derogation on this topic. Everybody remembers case law, based upon... Particularly when it comes to the criminal code-based upon the accused or based upon the parties. So, any Canadian lawyer is aware of the Oakes Test.

0:57:41 MS: Right.

0:57:42 RF: If I were to ask even a law student who's completed first year here at Queens, "What is the test for determining whether or not an infringement of a right is consistent with a free and democratic society?" They'll tell me, "The Oakes test." Then if I ask them, "Who is the lawyer?" Most people won't be able to tell me that. So we remember the accused, we don't remember the lawyer. The lawyer was a guy, with name of Geoff Beasley and I know that because I know Geoff Beasley. I encountered him later on in his career, when he was a deputy current attorney. An outstanding guy, an outstanding lawyer. Here's the interesting thing, so probably the most fundamental case, and I mentioned this to show law students, what their future can be like? One of the most fundamental charter cases in the history of charter law. The Oakes test, was decided back in 1985, started back in 1983, soon after the charter had been an Act and introduced and entrenched in the Constitution Act 1982. Geoff Beasley started that case when he was a JD student.

0:58:49 MS: Really?

0:58:50 RF: He's representing... And before the Supreme Court of Canada, it was the Crown appealing a judgment of the Court of Appeal of Ontario. So Geoff Beasley was I think a second year call, maybe? Maybe approaching his second year as a lawyer, appearing before the Supreme Court of Canada, and successfully defending a principle that had been upheld by the Court of Appeal for Ontario, that has now defined Charter interpretation for the last 35 years.

0:59:19 MS: Wow.

0:59:21 RF: So you never know when you're going to get an opportunity like that. So the Oakes test, the deals with balancing the infringement of a right has essentially three parts to it. So first, there has to be... And this onus is placed on the Crown, there has to be a pressing and substantial objective, whether we're dealing with a legislation that's enacted or the actions of the executive under legislation. There has to be pressing and substantial objective identified with the infringement of the right. And that response must be proportional in the three-part test for proportionality. There has to be a rational connection between that pressing and substantial objective and the infringement, the action taken under the legislation or by the legislation must represent minimal impairment of that right in achieving that pressing and substantial objective, and there must be proportionality. And we get that largely from European case law. So any time in an emergency, the Crown purports to infringe a right. There's going to be that question of whether that can be justified under that test. And there's nuances to that test that have been refined through other cases, but that's what Oakes sets up for the test.

1:00:48 MS: Right.

1:00:48 RF: And here's where context is important. So I mentioned earlier in our discussion, the internment of Japanese-Canadians during World War II. And that was done under the War Measures Act. After World War II, there was a reference made to the Supreme Court of Canada, which was later upheld by the Judicial Committee of the Privy Council, but a lot of people like to focus on the actual judgment from the Supreme Court of Canada because there were several different judgments written by different judges. And it actually upheld the actions under the War Measures Act. And that's one context where during an emergency, one group of people is treated differently than another group of people. That's where that proportionality comes out. And a lot of people when they think about emergency legislation, they think in a modern sense, how the government treats people who are suspected of terrorism. And that proportionality balancing is about balancing the good of the state, the public good, against an infringement of rights of a very select group of people.

1:01:56 MS: Right.

1:01:56 RF: And often people who are racially identifiable. That's a different context than, for example, what we're seeing largely now, which is a potential infringement of rights of everybody and weighing that on a proportionality basis for the public good. And that changes the context I had suggested significantly because if the government comes out and says, "We're going to segregate these people who look different than everybody else because we doubt their loyalty to the Crown, because they have Japanese ancestry, because they have Japanese ethnicity, and we're gonna set them in internment camps." That's an infringement of liberty that's markedly different than saying, Right, we want... We're going to order all Canadians to do X, Y or Z."

1:02:50 MS: So suspending all travel.

1:02:52 RF: Suspending all travel.

1:02:53 MS: That's an infringement of our rights.

1:02:55 RF: Absolutely.

1:02:55 MS: We should have the right to move freely and the government can, under the Emergency Act say, "We're pushing pause on that."

1:03:01 RF: Well, actually, it's not that we should have right to move for freely. The Charter of Rights and Freedoms has actually gives us that right, a freedom of movement.

1:03:08 MS: Oh, yeah. No, no.

1:03:08 RF: But that's important because people don't realize that.

1:03:10 MS: Yeah.

1:03:10 RF: People, when they think about the Charter of Rights and Freedoms and they think about, for example, Section 2 they think about freedom of expression, they think about freedom of assembly. But it also includes freedom of movement. I can move anywhere in Canada, that's my right as a Canadian citizen, that's my right as a person in Canada. I can move anywhere in Canada. And so, if they're going to infringe that right, that is a deprivation of not only my liberty under Section 7, but also my right under Section 2. But we have to bear in mind that the context is such... That they're not limiting Matt's right, or Rory's right, or people who live in Kingston. The likelihood is that they will limit the freedom of movement on a great many people, and that changes the context. It's one thing to say, "Well we're not gonna let people of a particular race." Try defending that. Where's your rational connection? Where is your minimal impairment? But if they say, "Well, if you have tested positive for COVID-19 or you demonstrate the following symptoms, we are gonna prohibit you from going to a public place, is that infringement of your liberty? Yeah. Is that infringement of your Section 2 right? Yeah. Is it defensible within a free and democratic society? Well, in the context, quite possibly.

1:04:25 MS: That's where we have the Oakes test.

1:04:26 RF: That's where we have the Oakes test. So we don't really need an Article 15 under the European Convention on Human Rights. We've got a slightly different mechanism for derogation.

1:04:35 MS: Gotcha.

1:04:36 RF: And it's actually a much more flexible derogation it implies. During, in an emergency, there's going to be... That's going to alter the context. But it also ensures that the Crown, whether it's federal or provincial, because their actions that can be taken by the provincial government that could inhibit our rights under the Canadian Charter of Rights and Freedoms, which are still an infringement of those rights under the Canadian Charter of Rights and Freedoms where they have to consistently think of, "Well can we defend this? What is our pressing and substantial objective? That's rather obvious. Does this represent something that is rationally connected to that objective? Is it a minimal impairment? It doesn't have to be the least possible, but within a scope of the least possible impairment. And finally, is it proportional? And when you're dealing with a pandemic, I would suggest meeting that obligation, meeting that test is going to be easier than when say, you're singling out people because of a "global war on terror."

1:05:38 MS: Right.

1:05:39 RF: Or singling out people because by virtue of their ethnicity, you doubt their loyalty to the Crown. And so as a result, we may well see infringement of charter rights during the governmental response to the pandemic, whether it's the provincial, federal, or both responding to the pandemic. But just because they're presumptively infringing a right doesn't mean it's not defensible in a free and democratic society, provided they can establish that pressing and substantial objective and meet the three-part test under Oakes.

1:06:12 MS: Right.

1:06:13 RF: So that's very much a wave top discussion about this issue. And about an hour long, there's a little bit more than an hour long we've talked discussion.

1:06:22 MS: But by the standard this podcast, this has been extraordinarily comprehensive. It's been fantastic. Thank you so much, Rory.

1:06:28 RF: You're welcome.

If prisoners can't receive education beyond a GED, how will they acclimate and survive when they leave prison? That's the starting point of some research work by Queen's Law criminal law professor Lisa Kerr and Queen's Law student Sam Bondoux, looking at issues around prisoner education in federal prison in Canada -- starting from the bizarre and nearly unique fact that Canada doesn't allow prisoners Internet access.

Lisa Kelly is a criminal law scholar, examining privacy issues among other things. She recently published a paper on the Jarvis case... and some of the issues that the Supreme Court decision raises about surveillance and privacy in general. She joins us, with Lisa Kerr, also a criminal law professor at Queen's Law, and the developer and instructor of the criminal law module in Law 201/701, Introduction to Canadian Law.

If you enjoy the podcast, take a moment to subscribe! You can learn more from Lisa Kerr about Criminal Law in Canada through her module in Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

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Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd. One of the side benefits of being a law student is you get to work with Law Faculty, and today we get to dig into those kinds of collaborations. Professor Lisa Kerr, is the creator and instructor of our criminal law module in law 201-701, Introduction to Canadian Law. For the past months, she's been working with Queen's Law Students Sam Bondoux on a project about Canadian prisons education and access to the internet, they joined me to talk about the surprising state of education in federal prisons and how student-teacher collaborations happen and work. Fundamentals of Canadian law is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

01:01 MS: Lisa, Sam let's talk about access to education among the prison population in Canada. What's the current lay of the land?

01:09 Lisa Kerr: Well, I think the first really important thing to say is to emphasize how high the needs are in terms of incarcerated people and education. So only 25% of those entering the federal prison system have a high school diploma. Compare that with the general population, where 80% of Canadians have a high school diploma. So that tells us this is a population that has a lot of educational need, and so it's no surprise then to learn that the Correctional Service of Canada, our federal prison system, does commit to delivering high school equivalency training within the prison system and so lots of inmates access that high school equivalency program. But there's also a small percentage of inmates who wanna go further than high school. We all know that a high school degree, high school diploma, is not gonna be enough in today's world to get a job, to get meaningful employment that's sustainable and so on, especially for someone with a criminal record. And so for those who wanna go further, beyond high school, while incarcerated, I think many Canadians would be shocked to learn that the prison system effectively prohibits them from going beyond high school.

02:20 MS: And it only makes sense that people leaving prison, the better their prospects are, the better the chance they have to survive and succeed in the outside world.

02:28 LK: Of course, that's just common sense. We all know that, right? That's why we all go to high school, go to college, encourage our kids to do so, so that we can have meaningful employment, take care of ourselves and our families. Sure.

02:40 MS: Right. So what are the barriers? What is prohibitive about people seeking that education?

02:44 LK: Yeah, so it's not an explicit prohibition, right? It's not corrections. They don't have a rule on the books that says nobody is allowed to go to college. But what they have is a situation in which the ban on internet access, and this is a total comprehensive ban for everyone in prison in Canada. You are not allowed to access the Internet in any way, shape, or form.

03:06 MS: Wait, wait, wait, at all?

03:07 LK: At all.

03:09 MS: Ever?

03:09 LK: Ever.

03:09 MS: What?

03:09 LK: Not to communicate with your family, not in any kind of secure supervised way. There is simply none of that. And I know Sam's gonna talk about what's going on in other countries on that topic. What that means in terms of accessing education is that inmates are unable to access distance education providers. Now, in the old days, right, before the internet, the prison system said, "Sure, if you wanna go beyond high school, you can pay for it like other Canadians do, and you can mail away and access a paper-based correspondence education program." And some inmates did that, they did exactly that. The problem today, is there are very few, if any, paper-based correspondence programs left. Why is that? Well, it's because online providers like Athabasca University, these other online education providers, they presume in a country like Canada, that everyone has access to the internet.

04:05 LK: So if you're gonna take one of these classes, you gotta go online, you gotta download materials, you may have to do a test online, you may have to access online tutorials. It is a presumption now, that distance education is online education. So the total ban on access to the Internet, is a total ban on access to any training or education beyond high school.

04:29 MS: Right? And I was in a meeting earlier today kind of in my professional capacity and we were looking at trend lines of, here at Queen's, of in-class education versus online education, not at the law school, but kind of in the school as a whole. And it is a dramatic shift over time in terms of how much education people are seeking online. We're changing our model, we are as an institution gravitating more towards online course delivery than anything else.

04:58 LK: I think that's one of the reasons I've become very passionate about this topic is, I work in a university, I'm well aware of this shift to online education, and I'm well aware of some of the benefits that flow from it. It's more democratic, people living in remote regions can access it, people with complex family care obligations, and so on can access it. It's a great thing, and it's something that it makes simply no sense to not bring these developments into penitentiaries. These are places where, as I say, people have high educational needs, people are often without meaningful activities, it's expensive to run programs in these places. You gotta get staff and it's difficult to get people past security. There are all kinds of limits on what you can do in terms of rehabilitative programming in the prison system and accessing an online course is not difficult. You set up a little computer room, you make sure that all the security controls and everything are in place, and you let people go sit in front of a screen and learn. Why would we not do that? Why would we insist that inmates sit, unoccupied, unable to develop as individuals, unable to connect with their families, all these things that would keep both the prison safer, and the community safer once they're released?

06:16 MS: Right. And I'm still stuck on zero internet. I had no idea. I just I guess I just assumed there was some sort of controlled, gated, observed, monitored, but you could check your email every once in a while or something like that.

06:29 LK: There isn't and it is something that I think Canadians don't know about, and I know Sam knows a lot about what's been going on in other countries on this topic.

06:37 MS: Yeah, that was kind of where my head was at was... Is this just a Canadian thing, or is there sort of like a global literally global prohibition on people in prisons accessing the internet?

06:49 Sam Bondoux: No, it's actually, it's quite the contrary. It's really, Canada is far far behind other jurisdictions in terms of access to education and post-secondary education needs in prisons. We're lucky that we can look to the other jurisdictions to see how they've been doing it, and how they've been successful and what sort of systems they've put in place. So even the US prisons have limited access to the internet for their inmates for post-secondary education but also for other things like communicating with their families. And Europe is far far ahead of Canada so they have many different programs in place in different European states. And what these programs look like are essentially an internet network specifically for the prison system where they can manage security risks. They... For example, in the UK, they take an inmate profile and when the inmate enters the prison, they're assessed, their risks are assessed, and they're given a specific login and on their log in, they have limited internet access, tailored to their risks. So if they have employment needs identified at intake, they might have the ability to access the Internet for instruction on how to improve their CV or instruction on what sort of skills they have in what sort of workforce area they might enter when they're released.

08:15 SB: And this becomes really, really important at release because in Canada, when inmates have a statutory release date coming up or a parole hearing one of the things, specifically at parole hearings, that the Parole Board of Canada will be looking at is their release plan. They do not have access to the Internet to make themselves this release plan and so when they get out, they have to do all that stuff. So whether that's finding a job is the big one, which is clearly linked to recidivism, and sort of returning back to that criminalized life.

08:50 MS: Right? So we know from international examples, like at home, I can log into my router, and turn on parental controls and I can say that the internet in my house can access these sites and not these sites, so we know systemically from other jurisdictions that it's entirely possible to make basically a internet for the prisons that only allows people to access what they need to access to pursue education, job opportunities, that kind of thing.

09:17 SB: Yeah, that's exactly right. And really, what has happened is since this ban on the Internet has been in place, the ban is in the correctional services policy, which was put in place in 2003. And really, at that time, the internet played a completely different role. There's been huge developments in the Internet in the past 20 years, and it plays an increasingly important role in daily life, really. Not just post-secondary education, but in the way we communicate and in the way we do simple tasks like banking and really, with these developments that have made the internet so important in the general community, we've also seen developments in technology that allow us to really achieve those security goals as well. And that's what we've seen in these other jurisdictions;that they can use the technological developments to make sure that the access is really secure, which is of course something that we're worried about also, but it's doable.

10:19 LK: Yeah, it's not just this big scary thing in the outside world, that inmates are gonna have unfettered access to. That was kind of where the ban came from, in 2003, right. Now, as Sam's saying, we have all this technology, we can control exactly what folks are doing on the computer. Net Nanny, any parent [chuckle] knows all about these software management or programs. And so, the prison system just hasn't caught up yet.

10:47 MS: Yeah.

10:49 LK: And why haven't they? 'Cause they don't have to. This is an isolated population, it's very difficult for them to assert their rights it's very difficult for them to access lawyers and so the prison system hasn't had the pressure on it to catch up with technology and with the needs of the populations held there.

11:06 MS: And I guess just as a mental exercise, I am just trying to think of what I could do and what I could access these days. Now, in 2020 without internet access. It's not much. It would be profoundly difficult for me to even in-class education would be impossible for me to pursue without internet access. I need to register for these courses.

11:26 LK: Well, and here's the thing. So one of the things the Prison Service has said in response to some of these critiques that we're making is they said, "Well we do deliver some college courses within the prison, right? And there is an excellent program called Walls to Bridges. We're developing this here at Queen's University right now, in fact, and Walls to Bridges there are university professors, who go in to institutions and teach university courses. And in fact, they're for credit and then the students enrolled at the university can go into the prison and take classes with inmates and it's an incredible experience for everyone involved, and there are classes like that. The problem is, number one, they're not available in every institution. Number two, they're one-off classes, right? Yeah, you could take a sociology of punishment class potentially at a particular prison, but you can't work toward an accreditation.

12:16 MS: Right.

12:17 LK: Right. And that's... These people don't need random humanities classes, they need an accredited degree, or diploma, so that they might be able to get employment. I'm sure they enjoy and benefit from intellectually these other courses, but we need to offer all of it to them. And the third thing is that even the folks who teach in Walls to Bridges, or other one-off college courses, they talk about how difficult it is to teach students who cannot do homework between classes, who cannot go online and learn between classes. It's not like they have great access to text books and literature in prisons, either, so they're delivering these courses. Sure, there's a ton of limits on access across the country and it's really hard to teach students who don't have a computer.

13:02 MS: Right. I mean, again, even here, I've taken some courses at Queen's recently, courses in the Certificate in Law, in fact, but even the in-class courses, you still have to log into learning management software, your readings are there, video reviews of past classes are there. It is even the most kind of in-class class is still integrated with online services to a point that I can't imagine how you could disassociate them at this point.

13:29 LK: Right, well you can't.

13:30 MS: Right? And so, hence the problem. So are there any other risks that people are considering in terms of granting internet access or is this pretty much just solved by this problem of we can gate and control what people do have access to.

13:45 SB: Oh, it is really solvable. And one of the things that they see in for example, in Norway is that it's a highly motivating tool to have for these inmates so they can monitor it. The internet is very monitorable and you can see what it's being used for, and you can take it away as easily as you can grant it to these inmates. So having this access to the outside world is a highly, highly motivating for them and can completely change the culture in the prison to a culture of learning as well, which is, it's just another side positive benefit.

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14:30 MS: Hey it's Matt, it's early in the new year, and a great time to think about your 2020 goals. If education is on the list, consider signing up for the Certificate in Law, the only Online Certificate of its kind offered by a law school in Canada. If you take just one course a semester online, starting this May, you'll have the Certificate in Law from Queen's University, one of the best law schools in the country, by the end of 2021. We offer courses in corporate law, Aboriginal law, intellectual property, workplace law and more. No matter what you're doing in life, you can get a deeper, richer understanding of how the law affects you as a citizen and as a professional, through our program. Find out more at takelaw.ca.

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15:18 MS: There's something else that's kind of anomalous about Canadian prisons which is the indigenous population in Canadian prisons is way out of whack with the actual indigenous population in terms of per capita, the number of people in Canada. Does this have a knock on disproportionate effect on indigenous inmates?

15:37 LK: As I always tell my students in my prison law class, every prison policy in Canada has a disproportionate impact on indigenous people, because our prison system is disproportionately full of indigenous people. So yes, this is a state policy that is basically saying, for those indigenous people who've been taken from their families and their communities, and incarcerated, we are gonna stand in the way of maintaining family bonds and relationships, being able to access elders in your community and so on. Other things that could be hugely important for an indigenous inmate to both do well while incarcerated, and have some ability to re-integrate. We're saying to that indigenous inmate, you can't develop your education, you can't do a course at Athabasca in indigenous studies while you're incarcerated. These are absolutely unacceptable especially, when we're dealing with a 30% prison population indigenous people in Canada, and so we have sort of come a long way in terms of recognizing that the indigenous people in the prison system are... The reason they're there is largely because of the legacy of colonization in this country, right, the impacts of residential school, the impacts of the Sixties Scoop, the impact of the rates of children in care, indigenous children in care.

17:03 LK: We know, we recognize that those state programs of discrimination generated this huge prison population, right? Did things to people that caused them or contributed to their offending and now they're sitting in prison and we say, "You can't do any of the things that would help you heal as a person from those experiences, that would help you gain knowledge, that would help you stay connected to your community and to the healthy parts of your life." And so to me, these issues are particularly unacceptable when we think about the demographics of the Canadian prison system, and the role that colonization has played in producing that population.

17:48 SB: This policy is really further marginalizing this group of people who are already so marginalized and it's really a unique and new feature of our prison system, that it's the sort of social isolation from the real world. And when you're in there for really any amount of time, but longer amounts of time when this digital world is moving at such a rapid pace, you come out, and it's really this type of isolation that we've never seen before.

18:14 MS: It seems like there's sort of a two-tier problem that you're discussing here. One is should inmates have some access to the internet as an important part of life, not just for education, but for other things. And there's kind of a parallel question of should inmates have access to education, which by necessity requires access to the internet. So which comes first?

18:37 LK: Well, you're now getting into the territory of strategic litigation. [chuckle]

18:42 MS: Right. Fair enough.

18:42 LK: In asking which comes first. I don't think they're separable. They're not separable, but I think that it's more strategic to talk about the need to access education. I'm not just talking about fancy post-secondary education, I'm talking any training beyond high school, whether it's a trade or vocation, accounting degree or computer science or sociology, right, whatever it is. It's the fact that the lack of internet access impairs access to those things makes it particularly unacceptable, and so I think that's a really effective way to communicate this issue but equally important is the ability to communicate with family, to know how to do online banking before you're released from custody, to be able to maintain these technological skills that everyone else in society absolutely has.

19:41 LK: And so the issues are not separable but I think the education angle on it is what could particularly capture the attention of Canadians. In a way you don't wanna be pushing for the right to the internet 'cause that sounds maybe too fun.

19:57 MS: [chuckle] Fair enough.

20:00 LK: But the reality is, yes, the internet is fun, but the internet is also how we run our lives. Right, and how we... And it's not all just for folks who might wanna access an actual program, Distance Education Program. There's all kinds of free educational tools online, right? You look at the Harvard Open Learning initiative you can basically take any course at Harvard for free online. You don't even have to be part of a registered course. There's all kinds of MOOCs, right, these massive open online courses. These are the kinds of things who knows if folks will actually register and pay for our distance education course. But why would we not want them sitting there learning and making use of this dead time away from society? And you know Matt I think about the fact for many years now, I've worked on trying to reform the laws of solitary confinement and solitary, putting inmates in solitary as a way of controlling and responding to behavior, responding to the problems that prisons have in trying to manage institutions. And then I look at this issue, and I go... How about instead of giving them more isolation, you give them more engagement, more meaning.

21:10 MS: Right?

21:10 LK: Something to do other than the bad behavior that gets you into solitary. So I started to realize it's not just about getting a prison system to stop doing really bad things to inmates, but also to turn their attention to the positive and productive, and engaging things, that they could be doing.

21:26 MS: But there's a whole trope in movies, television shows. The guy gets out of prison, and it's a strange and unfamiliar world, 'cause he's been inside for so... What are these things called cellphones? And I think with technology the way it is today, and where we are today, the amount of time it takes to create that disconnect is much shorter than it used to be. And if you don't have internet access at all, you are disconnected from the world in such a profound way, that I think it's taking less time for people to be kind of divorced from external reality and harder for them to reintegrate if they don't have those resources.

22:02 LK: Right? I feel that I am divorced from technological change because I haven't kept up enough myself, so I can well imagine how they feel. One thing I should say I've taught courses in prison, and there's something really magical about it, because no one is on their phones.

22:18 MS: Right, fair enough. Yes.

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22:20 LK: And it's a space where even I have to leave my phone at the front gate. It's a space where you actually realize how oppressive technology is for the rest of us in many ways. And so the suggestion is not to just have iPhones everywhere and all of these things, but to have controlled responsible use. I mean, arguably, [chuckle] we could use some of those limits in society as well, but to just say no access a total ban. The United States isn't doing that. Europe isn't doing that. Canada is way behind; a total ban makes no sense.

22:57 MS: Yeah, so I'm curious about you guys, so Lisa, you are a law professor, Sam, you are a law student, how did it come about that you were working on this project together?

23:06 LK: Yeah, well I was looking for a research assistant to develop a policy paper, on this topic, and Sam was enrolled in the Queen's Prison Law Clinic, which is a really awesome opportunity that students have here at Queen's to go and do real legal work on the ground, go inside the penitentiaries in the Kingston region, and represent inmates on their various legal issues. And so Sam was doing that work and that was exactly the kind of research assistant, I was looking for. And so I think what's cool is that Sam's been able to take the academic work that she did for me and then go to the clinic and think about, "Okay, now what concrete legal steps can we actually take to try and make change?"

23:48 MS: Right? So it's a sort of a fluid, translation from the research part to the work at the clinic.

23:53 SB: Right it's... It's really a well-rounded experience on the side. In the evenings, I get to do this research and then in the day I get to go into the prisons, meet these people who have these problems and hear about how they cannot access education that they wanna access, they cannot develop themselves in ways that they want to develop. And then I get to go to the clinic and really think about the strategic litigation side of it, and the law, which is pretty cool.

24:18 MS: So what happens at the end of this, is there a paper or is there... What is the end point of the work you're doing together?

24:25 LK: Well, we're working with a civil liberties organization that may do policy and litigation work moving forward, and the clinic is also invested in doing the litigation and advocacy work that could create change. These things are fairly long process and they involve multiple levels, right? Advocating, lobbying our policy makers and our politicians, doing podcasts like this, get it raising public awareness, and then also using the sort of more blunt legal tools of the grievance system and judicial reviews, and so on. So we're thinking about all of those pieces and pursuing each of them. Yeah.

25:09 MS: Great. Thank you so much guys.

25:10 LK: Thank you.

25:12 SB: Thank you.

25:16 MS: Thanks to Lisa and Sam. There's a lot that most of us don't know about Canadian prisons, and you get a glimpse into that system and how it works in the criminal law module of Law 201/701 Introduction to Canadian Law. If you're interested in government and power in Canada, we also offer a deeper dive into the subject in law 205/705 Public and Constitutional Law. You can learn more at takelaw.ca Fundamentals of Canadian law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton who is also a staff member here at Queen's law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Thanks for listening.

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A few years ago, the City of Kingston introduced some measures designed to curb some of the excesses of student life, especially at certain times of year. The creation of new powers to govern partying in the city with special attention on students has obviously attracted the attention of Queen's Legal Aid, the law school's clinic dedicated to supporting students and residents with low incomes in a wide variety of legal matters. The director of Queen's Legal Aid, Blair Crew, joins us this week to talk about the University District Safety Initiative, busting some myths and also looking at the related Nuisance Party Bylaw. Even if you're not a Queen's student, this is worth of listen as more of these kinds of by-laws continue to be drafted and introduced in various jurisdictions across the country.

If you enjoy the podcast, take a moment to subscribe! You can learn more about criminal law in our Criminal Law module in Law 201/701, Introduction to Canadian Law, at takelaw.ca, and about municipal, provincial and federal powers with Law 205/705: Public and Constitutional Law.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton.

Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd. We're recording this podcast as part of the certificate in law here at Queen's Law, the law school at Queen's University in Kingston, Ontario. A few years ago, the City of Kingston introduced some measures designed to curb some of the excesses of student life, especially at certain times of year. The creation of new powers to govern partying in the city with special attention on students has obviously attracted the attention of Queen's Legal Aid, the law school's clinic dedicated to supporting students and residents with low incomes in a wide variety of legal matters. The director of Queen's Legal Aid, Blair Crew joins us this week to talk about the University District Safety Initiative, busting some myths and also looking at the related Nuisance Party by-law. Even if you're not a Queen's student, this is worth of listen as more of these kinds of by-laws continue to be drafted and introduced in various jurisdictions across the country.

01:00 MS: Fundamentals of Canadian Law is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:14 MS: Blair, I thought we could talk about some of the myths surrounding the University District Safety Initiative. And what, from your vantage point as the Director of Queen's Legal Aid, what you've heard out there that might be misinformation that's worth correcting.

01:29 Blair Crew: Absolutely. The University District Safety Initiative is an initiative on how certain offenses are prosecuted, but there are a number of misnomers right within the name itself. One of them is that it only applies to the University District. The City of Kingston chose to name it that with reference to the area where most frequently it is invoked, but there are no set boundaries for the University District. The initiative makes it clear that it can apply anywhere in the city at any time. So it's not as if anybody can look on a map and say, "Oh, we're just outside the border, we're safe, we're not caught by this."

02:09 MS: Right. And that makes sense because there isn't a border. There isn't officially a University District. I couldn't say it with accuracy it's Albert down to Barry, from X to Y. So it has to apply across the entire city.

02:23 BC: There certainly is an area that the city associates or the university associates as being the student housing area, but the policy of the rule is that it's going to apply more broadly than that. And they didn't wanna define precise boundaries as to where that was and was not going to be.

02:40 MS: Okay. So East and West and all over, anywhere in the City of Kingston, this applies.

02:45 BC: Absolutely.

02:46 MS: Okay.

02:47 BC: Apart from that, there's also a myth in the notion that it only applies at certain times of year. Specifically, the University District Safety Initiative does say that it's the initiative that is going to be applied during orientation week, during Homecoming and significantly around St. Patrick's Day. However, the University District Safety Initiative and its way of prosecuting offenses catches any conduct that is caught under the related Nuisance Party by-law. And it's not restricted to those times of year, so it's not as if you're one day before St. Patrick day's or one day after or the Saturday closest to St. Patrick's day that you are necessarily safe. You can still be charged with the Nuisance Party By-law and it can still be prosecuted under the University District Safety Initiative.

03:40 MS: So it's anywhere in the city and any time of year. It is not gated to specific times a year that have been problematic in the past.

03:47 BC: That's correct, with a particular ability to apply it at those three times, where the underlying offense is either under the Liquor license Act or the City of Kingston Noise By-law.

04:00 MS: So, you're naming two offenses there. Can we break those down one at a time?

04:04 BC: Sure, and in fact, the University District Safety Initiative applies to three offenses.

04:09 MS: Oh, okay.

04:09 BC: So the three offenses are the Liquor Licence Act, the City of Kingston Noise By-law and the City of Kingston Nuisance Party By-law. All three offenses will be prosecuted under the procedure that is provided by the University District Safety Initiative.

04:27 MS: I actually thought the University District Safety Initiative and the Nuisance Party By-Law were the same thing until now.

04:32 BC: They are actually separate things.

04:33 MS: So another myth busted right out of the gate.

04:35 BC: Absolutely.

04:36 MS: So let's break these down one at a time.

04:37 BC: So the Liquor License Act that's a province-wide act. It's probably the one under which we see the most charges that are actually laid. The primary offenses under that act would be any minor having alcohol at any time. And what's best known for this is the open alcohol in a public place. We see the most charges laid under that. Under normal circumstances, that subject to the fines and penalties that are specified by the province in the province-wide Liquor License Act. But the University District Safety Initiative takes over to say that in the City of Kingston at those times of year that I outlined they're going to be prosecuted under that procedure.

05:19 MS: Can the city do that? Can it just sort of say, "We are adding additional powers to the powers of the province to kind of do our own thing in addition to what the province does."

05:28 BC: It's actually a question that I took a close look at because I would love to find a way to challenge the wide use of some of these powers. However, the Municipal Act does delegate to the city, wide powers to regulate of matters of a city's concern. So, absolutely, they are entitled to supplement or to provide a code of procedure, if you will, for existing provincial offences. And as the City of Kingston has done, they're also free to enact their own by-laws to create offenses that could be used under that initiative.

06:00 MS: So the city does have the power to take something that the province has and then put their own spin on it. It may not be the best language, but they are given the power through the Municipalities Act to kind of dial up and reinforce and enhance something that's covered under provincial law.

06:00 BC: Absolutely. And the University District Safety Initiative specifically provides that if you get charged with an offense that would normally simply be a ticketable offense that instead you're going to get a summons to attend to court. That's the outstanding feature of the University District Safety Initiative. It's much more inconvenient for students because instead of simply paying the set fine, they are required to come to court.

06:44 MS: Right.

06:44 BC: And if they don't show up in court then there's going to be a trial in absentia. And one of the features about this is that it removes the provincial or city set fines that normally you could pay just not disputing liability. It requires you come to court, instead. And once those fines are removed, now you're subject to the maximums under the Act, theoretically. The reality is nobody ever gets near the maximums that are ridiculously high. But you do see that amounts that are higher than if you had simply had an ability to pay a set fine. Interestingly enough, I wondered whether the city had the authority to do that. But it's a little known procedure that is available under the Provincial Offences Act, where even minor offenses can be initiated by issuing the person who has been charged with the summons instead of simply giving them a ticket that allows them to simply pay the fine.

07:37 MS: So the summons isn't just a way to add annoyance and more burden to the student to discourage them. It's actually kind of a gateway to a higher threshold of fines and punishment than the city would normally have access to.

07:48 BC: That's right. Most of us are familiar with something like a speeding offence where one of the options that you get is it will calculate what the fine you need to pay is and you simply have the option of not disputing it, paying the set fine, signing that you're guilty, sending in your check or your MasterCard payment, and then you're done. By requiring students usually to attend court, it removes those set fines and subjects the students to higher possible penalties.

08:17 MS: Right. A quick side note, just because you just used the word students. Similar to the fact that this takes place anywhere in the city and at any time of year it is not just something that is applied to students. This could theoretically apply to anyone of any age.

08:30 BC: Yeah, they could not make that discrimination in the act. Everybody knows that it is aimed primarily at students. It is called the University District Safety Initiative after all. The target is very, very clear. So I use the word students. The vast majority of people that we see that are charged with the events are in fact students at Queen's and occasionally at St. Lawrence College.

08:52 MS: Right, because you'd be running into significant charter problems if you tried to make a law that just applied to people of a certain age.

08:58 BC: Yeah, I looked for that and hoped that we could see it in order to challenge it. Sadly, it's not there, and they've been a little bit more clever than that in the way that the legislation has been drafted.

09:06 MS: Right. So is that everything on the Liquor Act, or is there more stuff to cover there?

09:11 BC: That's the essential thing. It's the open alcohol is the big one. Public intoxication is another offence under the Liquor License Act. It's often one that we see charges laid.

09:22 MS: So number two.

09:23 BC: Number two is the Noise By-law. The Noise By-law basically specifies that any noise that is audible from the street is unusual noise that is subject to a violation of the Noise By-law. There are two ways that the by-law works, one of which is that if it's above a certain decibel at set times of day, typically, after 10 PM, then it's automatically an... Sorry, typically before 10 PM it's automatically an offense. However any noise that is heard from the street after that time is automatically deemed to be a Noise By-law violation.

10:04 MS: Okay.

10:04 BC: One of the things that's exceptional about the Noise By-Law is that it also carries... It will be prosecuted under the University District Safety Initiative and the fines are often in the range of $500. The by-law specifies that the fine can go as high as $10,000, but for a first offense, a $500 fine is really quite high and well beyond the means of many students to be able to pay it readily.

10:29 MS: So let's break that down a bit. My limited experience with Homecoming, for instance, a noise that's audible on the street, the noise is often on the street and the source of the noise is actually on the street. So how does this work in terms of deciding what is or is noisy?

10:46 BC: Well, so really, the primary way that it's used is to enforce effectively a time curfew.

10:51 MS: Okay.

10:52 BC: And the goal of the by-law is we don't wanna disturb people when they're sleeping.

10:57 MS: Right.

10:57 BC: So, to that end, after a certain time, any noise that you can hear from the street can attract... If the party is in fact on the street then that's de facto going to be a violation of the City of Kingston Noise By-law. I guess the law is also designed that unless you have a permit for it, even during the day, if your noise is simply too darn loud, then you can be charged under that as well.

11:19 MS: Okay.

11:20 BC: There are exceptions and you can apply for a permit to be allowed to exceed that noise level for particular individual events.

11:27 MS: Right. And so what's the trigger for this? Does someone actually have to call in a complaint for this to be activated or is it just kind of passively waiting for noise to happen?

11:37 BC: There are no requirements that somebody phone in a complaint although frequently that is the way that it occurs. The city will respond if they get a complaint that my next door neighbour is hosting a very, very loud party, particularly if it's after that 10:00 PM time.

11:52 MS: I live on a street with a band. The band Loves to practice. They are not a good band, but they love to practice and they love to practice late. So my hand has drifted towards the phone many times, and I've never actually made that call.

12:05 BC: Well, you'd be delighted to know that subject to what you want your relationship with your neighbors to be like, you do have an ability to phone the City of Kingston and ask that they come and enforce that Noise By-Law.

12:16 MS: Okay. For the purposes of this conversation, it's not actually... You don't have to have a complainant to be violating the by-law.

12:24 BC: No, and we've seen several examples where what happens is the City of Kingston Police will be outside just around that border time, and then will start enforcing the Noise By-Law as soon as it goes after. So they are their own witnesses to the fact that noise is audible from the street. Again, particularly in the downtown housing area, they seem to be ready at times, particularly at the times when the University District Safety Initiative's in effect to go and pounce on any noise that they hear that's loud.

12:36 MS: If you're having a party, and the party has spilled out on to the street and the clock strikes 10:01, who's the originator of the noise in that case? Is it anyone and everyone that happens to be around the area? Is it the owner of the house that they deem the noise to be coming from? How do you figure out who's responsible?

12:36 BC: Well, this is where the Nuisance Party By-law, the third of our three statutes or laws kicks in.

12:36 MS: Okay, well, let's take a quick break and then we will get back and start digging into the Nuisance Party By-law.

12:36 BC: Alright.

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13:28 MS: Hey, it's Matt. Our conversation with Blair digs into a few interesting areas, criminal law, obviously, but also issues of power and how cities can create their own powers to make and enforce by-laws. No matter what legal issues you're interested in, the Certificate in Law has you covered. Criminal Law is a module of Law 201-701: Introduction to Canadian Law. And we also have a whole course about the Constitution, powers and how they work in Canada. Law 205-705: Public and Constitutional Law. If you're a Queen's student, certificate courses may also be applied to your undergraduate credit requirements. You can find out more about these courses and sign up to takelaw.ca.

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14:13 MS: So Kingston has a Nuisance Party By-Law and this is something that I actually had confused with the University District Safety Initiative. There are two different things, but it seems like the University District Safety Initiative is kind of there to point in most significant ways or many significant ways to the by-law.

14:32 BC: Right. So the Nuisance Party By-Law is a separate by-law passed by the City of Kingston, and it really provides a power to the police and an ability to lay additional charges. It's significant because the Nuisance Party By-Law is the one that is not restricted under the University District Safety Initiative to only those certain times of year. So at any time that the police lay a charge under the Nuisance Party By-Law it can and will be prosecuted by way of the University District Safety Initiative. The outstanding features of it are that, first of all, it gives the police, the Chief of Police or his delegate, which is basically going to be any officer that has been empowered to do so, the ability to declare a party a nuisance party at any time. Once that order has been issued, then all of the attendees must immediately leave the party. Following that, the city can issue to the property owner or to a tenant of the residence an order that they host no more parties for the next two years. If it happens within another two years, you don't need to give the warning, any person can be instantly charged.

15:46 BC: So with respect to the question of, "Who does it catch?" the by-law is very, very widely written. It can be the host of the party. You're also free to charge any attendee of the party whether that's after the warning has been given or the fact that the party was precluded from the beginning. In addition to that and if that weren't enough, the city was concerned about absentee landlords. So the owner can be charged even if the landlord is, in fact, in China at the time. Any person that is an occupant of the residence can be charged, and any person that is a tenant of the party can be charged under the by-law, even if the tenant was not involved in the party. So if you live there, if you rent there, you can be responsible and you can be charged.

16:33 MS: The visual metaphor in my head is like... It's kind of like a T-shirt gun. We're just firing charges off, willy-nilly, except no one wants the charge and most people want a T-shirt.

16:42 BC: The only way that the analogy is not appropriate as that's right, in this case, people would be fleeing from the T-shirts as opposed to trying to get them.

16:52 MS: Right.

16:52 BC: We've seen several situations where people, in fact, tried to flee from the T-shirts, but it gives the police an ability to charge anybody that they find there, any attendee of the party. So typically what happens is people do scatter fairly quickly once the police show up and declare the party to be a nuisance party.

17:12 MS: What's a party?

17:14 BC: So, a party is basically any gathering at all, but there is a list of conduct under the Nuisance Party By-Law that is specifically designed under the definition of party of the kind of conduct that they are looking to prohibit.

17:28 MS: Okay.

17:29 BC: The primary indications that would be a party featuring any public intoxication, so a party that moves from being completely contained to being out on the streets. If the party involves any blocking of traffic or really has spilled out onto the streets. If we get into things like people urinating in public, then that's going to be deemed to be a gathering that is subject to the Nuisance Party By-law. And significantly and again, maybe misunderstood, but any rooftop party can be deemed to be a nuisance party unless the roof is specifically permitted to host large numbers of people. So, the idea that I'm only having a few people on the roof, therefore, it can't be a nuisance party is probably incorrect. Very few roofs in the City of Kingston are zoned such that they can host a large number of people.

18:22 MS: Right. And maybe I'm just being pedantic at this point, but if one of the outcomes of this is they say, "This domicile can't host a party for the next two years," is that only parties that trigger any of these other conditions or is this anything that's deemed a party at all?

18:37 BC: It's anything that has been deemed to be a party under the Nuisance Party By-Law, which again the police have the power to do.

18:44 MS: Right.

18:45 BC: So really, it's a broad range of conduct that the police can say, "That constitutes a nuisance party." Effectively, it's almost anything that would make a party worth attending. But as soon as that happens, then the order can be issued. The party must stop immediately, or the charges could be laid. And I guess one of the ideas of going with owner liability is that it might not even be the same group of people that have been precluded from having a party there. If there is a landlord that rents to a group of students one year and those students all graduate and move on, you could be renting a house that is subject to the Nuisance Party By-law without even knowing that you've done so. And you could end up facing charges simply because the people that were there the previous year had hosted a party deemed to be a nuisance party.

19:26 MS: Right. So, what counts... I'm assuming that we're not gonna roll out the town crier and have a scroll, what counts as someone declaring something a nuisance party?

19:26 BC: So again, that's specifically a power that is given to the police. So the police basically do need to pronounce loudly at the scene of the party under the authority of the Nuisance Party By-law, "We are declaring this to be a nuisance party, and we are telling all attendees to disperse immediately."

19:26 MS: Okay, so you do have to have law enforcement on site and a public declaration that this has been deemed a nuisance party.

19:26 BC: That's correct.

19:26 MS: Okay. So... But that's the point where they can... Is there a time limit? Do you get a head start before they start laying charges or is it, "This is a nuisance party," and then the T-shirt cannon starts going off?"

20:19 BC: I think that the argument can clearly be made that they've gotta give you fair warning. They've gotta give you a reasonable length of time to disperse.

20:26 MS: Right.

20:26 BC: From my observations that length of time is not very, very long. And of course you're dealing with people that are already well into the party, and you're dealing with people that generally speaking, they may be a mere attendee, they don't know the history of this house, they're probably unfamiliar with most of these laws. So sometimes, it results in, let's just say, some attitude towards the police officers.

20:50 MS: Right.

20:51 BC: And where that occurs, that's one of the most sure fire ways that you can be sure that you're the person that they're going to choose to charge by virtue of the fact that you were an attendee. We have seen situations where it is the innocent tenant that comes home that says, "I had nothing to do with it." And faced with that response, that's when the police may decide to lay a charge. So, fairly you need to be given some warning. I think that I could challenge a charge that was laid too soon, but it's not specified how much time they need to give for you to disperse or the party to end. It just better happen pretty darn quickly if you wanna be on the safe side of the law.

21:29 MS: So laddering all the way back up to kind of the broad myths, do you have to be a Kingston resident to be charged under this by-law?

21:37 BC: Not at all, you could be any individual that is at the party. So one of the features of Homecoming is that many of the people, we call it Homecoming for a reason, "have come home" for the weekend and may be visiting their friends, some of whom are still students. Those individuals can be charged. Anybody that's at the party.

21:56 MS: Okay, because, yeah, anecdotally, there are a lot of students from other universities that come down for Homecoming 'cause they hear it's gonna be a fun time. And so there's a lot of non-Kingston residents, and they can all be charged under this.

22:09 BC: I think so. Queen's students tend to feel a real loyalty to the school to Queen's and to the school to which they attended, and they have fond memories of their times as a student. It's why it's one of the most successful Homecomings of any university in Ontario. At the same time, the University District Safety Initiative and the Nuisance Party By-Law are responses to that very success.

22:32 MS: Right. So is there anything else kind of that we need to cover in the Nuisance Party By-Law.

22:38 BC: Under the Nuisance Party By-Law, there's really nothing else. It's almost anything that is going to make the party notable is likely to trigger the potential that it could be declared a nuisance party.

22:49 MS: Okay. So what's the big picture here in terms of, from your vantage point, since this was implemented, has there been a change in the type of and sort of scale of partying going on in the university or has it kind of been the same but with more charges being laid?

23:08 BC: I'm not so sure that there has been a significant change. The University District Safety Initiative in the language that the city used to pass it as well as in the preamble to the Nuisance Party By-Law, they talk an awful lot about that golden goal of any criminal or quasi-criminal law, which is deterrence.

23:30 MS: Right.

23:31 BC: I think that students and people that are attending parties don't particularly think deterrence. I don't think that they're thinking, "Oh, what are the consequences of this?" People are simply out to have a good time. So from what I've seen, I'm not so sure that it has had a significant effect on cutting down the amount of the conduct. What has happened, however, is the police have tools to respond more quickly. So recently there was an example where by 11 o'clock in the morning, the police had already attended well literally this party had already flown out onto the streets, but declared a nuisance party as of 11 o'clock in the morning. So, what I think has happened is that the police have an ability to respond much quicker than they used to, and more tools for enforcement once they do.

24:16 MS: Okay. And Queen's Legal Aid has produced some tools to help students. Well, help out everyone really understand what the parameters are. You produced some materials, I think, last year or the year before that were circulated on campus. They're available at queenslaw.queens.ca on the Queen's Legal Aid site that basically detail the parameters of what makes a party and what makes essentially, what will lead you into violating these by-laws.

24:42 BC: Yes, the summary of all of this information is up on our website, and we have produced those materials under the heading of "Save the Party, Skip the Ticket." One of my messages about that is that it's not just a ticket that you're skipping, it's the summons to court now that you are skipping and the larger fine that can come with it.

25:01 MS: Right.

25:02 BC: I think I would like to just remind people that although these are charges that can have significant effects and are a pain to deal with and they take the time to go to court, at the same time we're still talking about by-law offences and Provincial Offences. So the good news in all of this for a person that gets charged is you're not going to get a criminal record for this.

25:25 MS: Okay.

25:26 BC: You can get a criminal record for other things such as obstruct police, if you were to give a police officer a false name when you are being arrested or if you try to run away. But generally speaking, if you find yourself in a situation where you're charged, if you cooperate at that stage, the worst that you're looking at is this fine and the consequences that come along with it. But that doesn't involve a criminal record. Another aspect of the University District Safety Initiative that many students are concerned about and here it specifically is students is that part of the initiative is in addition to the summons to court, the offences are reported to Queen's University, who can then have a conduct investigation as to whether or not you've committed some sort of non-academic offence that can be disciplined. The good news is that we have not seen Queen's vigorously coming after people for this.

26:20 BC: In some situations, depending on the notoriety of the party and of the scope of the harm to the community that may have been done, they have launched investigations, but typically those are resolved with either the student agreeing not to host a similar party or not to engage in such conduct again in the future or even simply writing a letter of apology to the school. So it's not like anybody needs to worry that they will lose their degree, although some people are concerned that it can be reported to the university as well.

26:53 MS: Right. And the university has its own suite of powers. We can't guarantee what would happen if the university engages in a conduct review.

27:01 BC: No, no, we can't. And again, that's not something that I think anybody would want to go through, but it's not like the university has been coming with over-the-top sanctions for individuals that have been found to be in violation of the University District Safety Initiative.

27:14 MS: Okay, so where can students go if they need help with these issues?

27:17 BC: So this is one of the things that Queen's Legal Aid, specifically does. We have a number of students down there that work under the supervision of lawyers, and Provincial Offences and by-laws are squarely within the power for students to represent individual. We have a great deal of experience in doing so.

27:37 MS: Great. Thank you very much, Blair.

27:39 BC: It's been a pleasure.

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27:43 MS: Thanks to Blair Crew. You can find lots more information about Queen's Legal Aid, including some resources on parties and the law at queenslawclinics.ca. It's also a great resource for information on all of Queen's Law's clinics, including business law, family law, Elder law and the nation's only Prison Law Clinic. If you're interested in on our rights as citizens and the use of power in Canada, you can take a more profound look at the subject in Law 205-705: Public and Constitutional Law. You can learn more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Thanks for listening.

 

I'm Matt Shepherd. The Jarvis case is back in the news -- a court case about a teacher filming his students for sexual purposes, which made it all the way up to the Supreme Court -- which makes this a timely moment to talk about that case, and its broader implications.  

Lisa Kelly is a criminal law scholar, examining privacy issues among other things. She recently published a paper on the Jarvis case... and some of the issues that the Supreme Court decision raises about surveillance and privacy in general. She joins us, with Lisa Kerr, also a criminal law professor at Queen's Law, and the developer and instructor of the criminal law module in Law 201/701, Introduction to Canadian Law.

Her paper is here: A Tale of Two Cameras - Sex and Surveillance in R v. Jarvis

If you enjoy the podcast, take a moment to subscribe! All of our courses are rooted in legal research, but you can learn more from Lisa Kerr about Criminal Law in Canada through her module in Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton.

Transcript:

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00:04 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd. The Jarvis case is back in the news, a court case about a teacher, filming his students for sexual purposes, which made it all the way up to the Supreme Court, which makes this a timely moment to talk about that case, and it's broader implications. We're fortunate to have Lisa Kelly as part of the Faculty of Law here at Queen's. She's a criminal law scholar examining privacy issues among other things. She recently published a paper on the Jarvis case, and some of the issues that the Supreme Court decision raises about surveillance and privacy in general.

00:40 MS: She joins us with Lisa Kerr, also a Criminal Law professor at Queen's Law, and the developer and instructor of the Criminal Law module and 'Law 201/701: Introduction to Canadian Law'. Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca. Lisa Kelly, you've recently written something in Criminal Reports about Jarvis and the Supreme Court and, can you can tell us a bit what the paper's about?

01:14 Lisa Kelly: Sure. So Jarvis was a case that was closely followed by a lot of different groups, by feminists, by people who work in schools, people who attend schools... And that's really because of the facts of the case. So, we have all most of us, hopefully, fortunately have at one time been students in a school, and that's the context from which this comes out. And Mr. Jarvis was an English school teacher in London, Ontario, and, he was using a pen camera. So we all know about the James Bond type era when you would be a spy, and the spy would have a pen camera, but he was using it for what I think we can all reasonably agree was a sexual purpose that we do not expect of, and that we strongly condemn of, a teacher to do to their students.

02:17 MS: Right. Specifically, he was...

02:21 LK: So he was going around the school, in the classroom and the corridors and the cafeteria, and he was surreptitiously filming students, and in particular, female students. He was zooming in on their breast area, and pretty clearly doing so for a sexual purpose. I just wanna note that at the trial level, which was arguably quite a strange outcome, the trial judge was not convinced beyond a reasonable doubt that Mr. Jarvis was filming for a sexual purpose, and the crime that he was charged with, which is voyeurism... It's a relatively new crime in our criminal code that requires that the filming or observation be done for a "sexual purpose."

03:15 LK: He was not... The trial judge wasn't convinced beyond a reasonable doubt. As I say, a rather strange ruling, because the filming did clearly involve zooming in on areas that we would generally in society agree were sexually motivated. So, the case then went up to the Ontario Court of Appeal, and at the Ontario Court of Appeal, they easily overturned that issue, finding that there was a sexual purpose, but, they held that the Crown hadn't proved in another part of the crime, and that was that in order to convict someone of voyeurism, you need to have had a reasonable expectation of privacy against that surveillance.

04:05 MS: Right. And, there's a couple levels of complication there. One is, is a school in and of itself, reasonable expectation of privacy. It's kind of a quasi-public space.

04:15 LK: Yeah.

04:16 MS: And there's also the fact that as you talk about substantially in your paper, the students were already being filmed.

04:22 LK: Absolutely. So this ends up being a really key point, and the Ontario Court of Appeal ends up coming down on the side that they did not enjoy a reasonable expectation of privacy vis-a-vis this filming, for precisely the reason you're saying, right? Public schools are public in all kinds of senses, they're public in the sense that students are compelled by public law to go to them, and they are also today in 2020, highly surveilled places. Students were on notice that they were subject to essentially 24 hour... They're not at school hopefully for 24 hours, but that there were 24 hour surveillance cameras operating then.

05:05 LK: And, a big question that then ended up going up to the Supreme Court, was, does the public nature of the school, including the presence of the surveillance cameras, does that then mean that Mr. Jarvis' surreptitious pen filming wasn't a violation of their privacy? Right? Have they already surrendered their privacy because they're in this public space, they see cameras all around, they're already being filmed. This was happening in corridors, in classrooms, and that was a question that was alive right to the Supreme Court.

05:47 MS: This is one of those spaces where academia is interesting, 'cause the common sense approach is obviously these are completely different things for entirely different purposes and, on its face it looks like it's a pretty easy division to make.

06:00 LK: Definitely. I think if we went out and pulled people on the street or in our communities, I think people... Hence why I think the Jarvis case, both its facts, but also these arguably pretty strange legal findings, both at the trial level and the Ontario Court of Appeal finding, I think that's in part why the case generated a lot of interest, because it seemed really antithetical to common sense reasoning about student life, teacher life, and what should be going on. I think one of the interesting things as you're saying, for us who are legal academics or thinking about these kinds of ideas is that, ideas of privacy and how we define privacy are actually incredibly complicated. And, I think for the Ontario Court of Appeal, there was a sense that what we should be primarily concerned about is the space, is the place when you enter into a particular place, have you kind of surrendered privacy that you might enjoy for instance when you're at home?

07:12 LK: And that is one that is that type of reasoning about privacy has a long lineage in law. We historically tended to be concerned primarily about place, where are you? But certainly, since the charter countervailing ideas of privacy as traveling with the individual, and hence being really about reasonable expectations, which is the language in the voyeurism provision, that suggested a slightly more nuanced understanding of privacy, in that I may well be in a very public place, but there may be types of conduct that I still am going to be able to assert a privacy interest against.

07:56 MS: Right.

07:57 LK: And I think those complexities and why the idea of privacy is so complicated, it takes kind of some digging down. And I think that's why you saw some divisions on in the court.

08:09 Lisa Kerr: But we do get the return or the arrival in this case of common sense from the Supreme Court of Canada's decision, right?

08:16 LK: Yeah, I think so. I think here, the outcome in Jarvis by the Supreme Court was that these students did indeed enjoy a reasonable expectation of privacy against a teacher surreptitiously recording them for a sexual purpose. And hence, this could indeed qualify as voyeurism prohibited by law. But one of the interesting things that I really focused on in my piece is that the Court reaches that conclusion about the student's privacy from Mr Jarvis' pen camera by contrasting it with their lack of privacy vis-a-vis the surveillance cameras. And that's why I called the piece a Tale of Two Cameras, because this is really about how do we, in a hyper-surveilled society understand this kind of privacy that zooms in and out, depending on whose camera is viewing us and for what purpose.

09:21 MS: Right.

09:22 LK: And that's complicated, because we are all being surveilled and are all arguably on camera many times in a day. When do we get to say, "I am private from that camera, but not the other." And one of the things I was concerned about is that Mr. Jarvis's, as Matt has said for really all of us, I think, in the general public, Mr. Jarvis's use of his pen camera as a person in a position of trust at a school is fairly easily... It's pretty easy to see that that's objectionable, and that it does seem to violate ideas of privacy that we have. And yet on the other side, the surveillance cameras at the school were viewed by the courts, and arguably, I would say by the parties and the interveners as necessarily a good thing.

10:17 LK: The court talked about them as safety promoting and didn't see what I think are some of the darker sides of those sets of cameras as well. And what I mean by that is that students today are attending schools where they may have police in school, they are subject to really pretty rigorous discipline policies. And the presence of cameras, yes, can be protective of some, but it can also be used as evidence in future criminal proceedings. Instances that may once have been handled by school authorities alone are increasingly kicked into the criminal side. And the politics about those cameras, I think got last in the very common sense vilification of Mr. Jarvis's pen camera.

11:04 LK: You write in the piece that, "My goal here is to trouble the easy distinction the court drew between sex and surveillance." That seems to really be the heart of it.

11:14 LK: Yeah, I think so. In this, particularly in the Me Too moment, but certainly long preceding it as well, I think people are, for lots of really good and important reasons, are really concerned about sexual wrongdoing, sexual invasions of privacy, the effects that that has on people, the effects that that has on people's ability to participate fully in public, including at a public school. But I think exceptionalizing sex, in this case, exceptionalizing Mr. Jarvis's pen camera can have also some costs and some downsides. And one of the downsides is that when we exceptionalize sexual invasions of privacy, as our voyeurism provision does, by requiring a sexual purpose, we may legitimate, or at the very least neutralize other forms of surveillance, other forms of observation that can also have really significant social consequences, in particular, for students of color, for students with disabilities, some students who may be involved in altercations at school or otherwise, and who may find themselves disproportionately affected by school surveillance and discipline regimes.

12:44 LK: And these are really complicated sets of questions, but I think singling out sex as the foundational form of wrongdoing that we are solely or primarily concerned with can background some of these other... And that was a really key motivator for me in the piece.

12:53 LK: Right. And then part of the history that you describe is that pointing out that these surveillance cameras aren't always serving an innocuous purpose or a good purpose, just safety, making sure that schools are places that students can go to without having to worry about violence and so on. There's other things that these surveillance cameras may be doing, and you talk about the sort of rise of criminal law enforcement that goes on within schools and by teachers, which is gonna be aided in at least some cases by the footage gathered with these other cameras.

13:41 LK: Yeah, so that's absolutely right. And I think that is a factor and a piece that needs to be part of our calculus when we are thinking about these different kinds of regimes, over the last four decades. And I'm working now on a project, a shirt-funded project on policing in schools. Over the last four decades, there has been an exponential rise in attention to violence and safety in schools. And again, there have been very important reasons for this, and in our current teachers strike right now in Ontario school safety, including staff safety is actually a key part of the dispute and what sort of protections are available for staff and students, so it is an ongoing issue and concern. But one of the tactics that has been used is that there has been a turn in many contexts toward policing in schools and toward a sense that schools are dangerous places and the source of that danger are students themselves and that we need, not only school discipline policies but we need sometimes to have those actions moved into the criminal system and have a criminal response. And as you're saying, Lisa, surveillance footage can indeed be important for safety or finding out what happened in a particular instance, but it can be used as evidence in a criminal trial, it can be used to get a plea bargain.

15:22 LK: And we have to ask, and there's pretty clear evidence on this. What students, which students what kind of wrong doing is most likely to attract a more punitive response. Again, disproportionate impacts on students of color, indigenous students in some contexts, also in some contexts, clearly, students with disabilities. And that's the the overhang or the law and politics piece that we have to be aware of when the court as Lisa said, just uses the fairly, but now simple language that these are just "safety-promoting cameras". There's a lot going on in schools with these cameras with the larger context of how we understand schools.

16:09 MS: Hey, it's Matt. As spring comes around the corner, May isn't that far away, which makes this a great time to consider signing up for the certificate in law. It's the only online certificate of its kind offered by a law school in Canada. If you take just one course a semester online, starting this May, you'll have the certificate in law from Queen's University, one of the best law schools in the country, by the end of 2021. We offer courses in aboriginal law, constitutional law, intellectual property, international law and more. No matter what you're doing in life, you can get a deeper, richer understanding of how the law affects you as a citizen and as a professional, through our program. Find out more at takelaw.ca.

16:58 LK: It's a fascinating article and it's part of why I think our jobs as academics or as law professors who get to comment on cases can be kind of a cool place to be sometimes. You're saying here, yes, the Supreme Court of Canada made the right decision, right? When you're talking about the particular outcome of the case. Conviction here, is appropriate for this teacher. But you're also saying Let's dig a little deeper into some of the consequences of what the court is saying. I'm curious, were there any interveners in front of the Supreme Court of Canada making the arguments that you're making today, or in this piece?

17:38 LK: Not specifically, no. Some interveners did comment on student privacy a little bit vis-a-vis discipline policies. But no one, no intervener... And I've reviewed all the intervener facta, no one made the specific observation that perhaps the best line of reasoning here, isn't to tie student privacy vis-à-vis Mr. Jarvis camera to an opposing legitimate public survey lens camera. That's essentially kind of the analytical move at the heart of this case is that a series of public-private distinctions. And the privacy and the expectation of privacy, vis-a-vis Mr. Jarvis camera is built on and grows out in part the legitimate publicity of surveillance cameras in schools, and no one certainly before the Supreme court made the argument in precisely those terms.

18:42 LK: And I would just go back, actually, I think another... This one was less of an interest kind of in my paper, but Steve Coglan of Dowhosi has written this in a short comment that he gave on Jarvis and that's just that... Another thing you did see the court struggling with, about the privacy question, vis-a-vis Mr. Jarvis camera, is that the court ends in this fairly dissatisfied multifactorial analysis of what privacy looks like, what reasonable expectation of privacy looks like in a school context. And they make it very specific to the facts of this case that students enjoy a reasonable expectation of privacy from being surreptitiously filmed for sexual purposes, essentially by a teacher.

19:33 MS: Right.

19:33 LK: How much guidance that gives you in future cases? What if it had involved students filming one another, "what if they were right off school property, what if they were at the shopping mall, and Mr. Jarvis were there? And I'm not necessarily criticizing them for that I think it's difficult to draw out a taxonomy of what privacy looks like, but I think it actually points to... And this was the point the Criminal Lawyers' Association made in their facta. It points to a larger set of questions and problems, maybe with the voyeurism offense itself, because these questions about when one enjoys a reasonable expectation of privacy vis-a-vis filming, will arguably end up being deeply contextual, and tend to run on a case-by-case basis, and that always raises a little bit of red flags for us in terms of people having knowledge about when they are potentially breaking the law versus when they are just out and about in the world using their iPhones.

20:42 MS: Well, in a way you've got here a case that almost has the sharpest possible points of contrast, where you've got someone in a position of authority, taking secret videos of people, for obviously prurient interests. And at the other end, you've got surveillance, which is ostensibly and as you've raised this, can be questioned. But, ostensibly it's to protect students from violence in schools. And then there's this massive gray area in the middle of surveillance in a store to prevent shoplifting. Well that's not quite as far out on the side as surveillance in a school to protect students from violence, or a student filming another student for terrible reasons is not as far out there as a teacher in a position of authority. So, you've got almost an interesting spread here where all of the gray space seems to be in the middle.

21:31 LK: I think that's right. I think that's absolutely right, and I think... I certainly wasn't making the case for instance that a Supreme Court or anyone is ever going to say that school surveillance cameras are "a violation of students' privacy." I think that ship sailed a long time ago, because the Supreme Court has recognized all sorts of ways that students do surrender some of their reasonable expectation of privacy when they come into school. And one could have debates about where they have drawn those lines, but I think they have clearly been drawn for instance when it comes to searches at school, students enjoy lesser protections when they are searched at school, than they would enjoy in other contexts because of the nature of the school.

22:16 LK: So, that certainly is true, but I think when it comes to as you said, these questions about sexual filming in particular for the purpose of voyeurism, this is a real extreme case. Right? It's someone in... As you said, it's someone in a position of trust, they are with younger people. These are all people who are minors. There are all these factors I think that made this a case where there was a lot of potential will to find that this was a violation of privacy. But where one will draw that line in future I think is extremely difficult to tell. And I don't think Jarvis gives us a lot of specific guidance on that.

23:03 MS: Right. There's so much wrapped up in intent and use. But what if someone is using the school security footage for creepy purposes, where does that... But there's... But what is interesting about this stuff is that it just leads you to so many interesting places.

23:16 LK: Absolutely. And they made some point about that. How could it be used? The fact that individual teachers couldn't gain access to the school security footage, but what if they could have, and when with the school surveillance camera be potentially transformed into a form of voyeurism.

23:35 MS: Right.

23:35 LK: Not incredibly clear here, and I think the court and others do try to make these very fast, hard, easy distinctions between the two sets of cameras, but not entirely clear that that would always hold, even in the context of sex, but definitely not in terms of these larger social context questions that I'm interested in.

23:55 MS: If people wanna read this paper Lisa, where can they find it?

23:58 LK: Yeah. So this piece is published in the Criminal Reports. They're actually... The Editor-in-Chief is actually a colleague of ours, Don Stuart here at Queen's Law School, and you can find this piece on my academia.edu page: Lisa Kelly, and the name of the piece, I think I've mentioned it before, but, it is A Tale of Two Cameras, sex and surveillance in R v. Jarvis. Great. Lisa and Lisa, thank you both very much.

24:27 LK: Thank you Matt.

24:27 LK: Thank you.

24:31 MS: Thanks to Lisas Kelly and Kerr. Criminal Law includes issues that resonate to the deepest principles of freedom and justice in Canada, and you can learn more about it in the Criminal Law module of Law 201/701: Introduction to Canadian Law. If you're interested in our rights as citizens, and the use of power in Canada, you can take a more profound look at the subject in Law 205/705: Public and Constitutional Law. You can learn more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Hodinoshoni territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Thanks for listening.

Do fines make a difference in people's behaviour? This simple question leads to a labyrinth of research, the intersection of law and economics, and the importance of replication in the social sciences in a great conversation with the author of our Constitutional module in Law 201/701, Introduction to Canadian Law, Cherie Metcalf.

If you enjoy the podcast, take a moment to subscribe! All of our courses are rooted in legal research, but you can learn more from Cherie about Constitutional Law in Canada through her module in Law 201/701, Introduction to Canadian Law, at takelaw.ca.

Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.  

Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd and sometimes I run late. Sometimes I'm punished for running late: Bad marks, library fines, all kinds of things. We've all been late for things and most of us have been punished for it in one way or another. And that common life experience is our gateway into an amazing conversation about legal research with the creator of the constitutional law module in Law 201/701, Cherie Metcalf. Cherie is both an economist and a legal academic, and she's been looking into a kind of legendary legal study that examined the consequences of fines from lateness. The original study discovered something surprising. But when Cherie and her team looked at it, applying the principle of replication to a legendary piece of academic literature, the results were even more surprising.

00:57 MS: Legal research is fascinating stuff and it really does affect all of our lives. Keep listening to find out how and why. This podcast is not legal advice and is being presented for informational purposes only. Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:29 MS: Most law students know faculty as teachers because from the first day of law school, you're in the classroom teaching, but they don't have as much exposure, I think, to faculty as researchers, which is actually on paper, when you look at the allocation of time, it's actually the bulk of your job.

01:45 Cherie Metcalf: Yeah, yeah. Research is a really big part of what we do at the faculty and, you know, most faculty doing research is a big part of the reason why they want to be legal academics.

01:58 MS: Right.

01:58 CM: So yeah.

02:00 MS: And your research in particular is inter-disciplinary. You came to law from an economics background.

02:05 CM: Yeah, that's right. So I... It was a little bit unusual because I actually did my PhD in economics first before I ever went to law school at all, just sort of bizarre personal circumstances but I ended up doing both my JD and Master's in law after having gone all the way through advanced training in economics.

02:27 MS: Right. And law and economics is a thing. Like, this is...

02:30 CM: Oh, yes.

02:30 MS: Sort of a sub-discipline of law is the research into law and economics intersecting.

02:34 CM: Yeah, yeah. So using sort of economic tools and theory to understand how law works and how it influences the way individuals make choices and to use the statistical tools that economists are familiar with to try and study problems about the law and how it works, this is a very common field of study in legal academia. It's... Probably I would say it's a little bit more prevalent in the United States, but even in Canada here, it's definitely a well-established research perspective in legal research.

03:13 MS: So I wanted to talk to you about what you're working on right now 'cause it's interesting for a number of reasons. First of all, it's just interesting. But second, it is... It talks about how we validate prior research and it also deals with something that has had... It's the kind... The study that this starts from is the kind of study that actually gets talked about and does have an influence in the end and sort of public opinion and policymaking. So what project are you just wrapping up right now?

03:41 CM: Right. So this is one of the research projects that I'm working on, and I'm working on it with some other colleagues at other universities, but it is trying to see if we could replicate the results from this study that you mentioned, this very famous study by Uri Gneezy and Aldo Rustichini called A Fine is a Price. So the initial study is really well-known. It was a study that was gonna investigate how fines work to deter sort of bad behavior and so this was what you referred to as a randomized field trial. So that means essentially they had... They did it in daycares in Israel. So they had this sort of sample of 10 different daycares that they had chosen because they thought they were pretty similar. They were in similar areas and then what they did was they sort of observed them for a period and then they introduced a fine in some but not all of them and then they kept on observing and they were measuring, well, how many parents were late, and then they took the fine away and kept observing.

04:51 MS: Right. So they were trying to see if...

04:52 CM: Yeah. Yeah, they were trying to... So that's a... It's called a... The reason why these kind of trials are so effective is because you're randomly varying this treatment, putting a fine in place and that actually allows you to make a statement about what the causal effect of the fine is, right?

05:10 MS: Right.

05:10 CM: You can isolate the effect of the fine and be confident that that's what's really driving changes in behavior.

05:17 MS: And I think one of the reasons that this initial study got so much interest is because the results were actually counterintuitive.

05:24 CM: Yeah, the result was really surprising. So they expected to sort of study how the fine would deter behavior and how effective it was, and instead, what happened was they put this fine in place and the parents started coming late more often. So they were a bit surprised about that, but then they sort of came up with two different theories about why that might be the case. So one was, well, maybe what's happening here is the fine is kind of signaling to people, okay, the consequences that you might have been afraid of, you might have been afraid something really bad was gonna happen, like your kid would get kicked out, and the fine tells you, well, that's not gonna happen. Okay? So now you're not as worried and now you might come late more often.

06:00 MS: Okay.

06:00 CM: That's one theory. And the other theory which I think has been maybe more influential was that before the fine was there, people really thought about this in a social way. It was really more about social norms and imposing on the daycare workers and it was more about social relations. And as soon as you introduced the fine, it changed the extra time and care to a commodity and then people thought about it differently and it just became... So that's the title of their paper, "A Fine is a Price."

06:37 MS: Right.

06:38 CM: And you can just decide how much extra daycare you wanna buy at the late fee. [chuckle]

06:42 MS: Right, okay.

06:43 CM: Yeah. So that was their other theory that is really influential because it's a lot about how, for empirical legal scholars, it's about how law interacts with social norms that control people's behavior.

06:55 MS: Right. And so they basically put these theories forward and that was kind of the end of that.

07:02 CM: Yeah, you know there's a little bit of follow-up after, and some people said, "Well, we think there's something a little strange about this." And they did some follow-up, but overall, that was sort of it, and the article has been really influential. It's been cited a ton, and it's a really interesting and intuitive theory, right?

07:25 MS: Right. So why... I guess we'd start with your work. Why is replication important?

07:33 CM: So this is really related to sort of general questions about research in the social science where people have started to question, "Well, how much weight should we put on the results, especially sort of surprising results, from one or two studies? How confident can we be that we should really be putting a lot of weight on those?". And so part of this is people have tried to replicate influential studies, and there's been a pretty mixed success rate, especially in sort of social psychology but even in economics and other sort of social science disciplines. People have become a lot more interested in thinking about replication as a way to check and see, "Well, how much weight and how sort of robust are these results?"

08:25 MS: Right. And I'm sort of familiar with the notion of replication from the hard sciences. Like someone says, "Hey, water boils at 100 degrees, we should check that." And a few other people do. "Yep, absolutely. That's what's happening." It seems like you're in a more difficult space to replicate things because the conditions are going to be different.

08:46 CM: Yeah. I think trying to figure out exactly how you would do sort of meaningful replication in social sciences, I think it can be a bit more challenging and especially for sort of empirical legal scholars because of the fact that the way that law operates. It is sort of highly contextual. So we have different laws, different... It's very hard to control sort of all the background factors that we think might be relevant even if we're using something like an experimental design in a field trial.

09:19 MS: Right.

09:19 CM: Yeah.

09:20 MS: So you and a number of colleagues set out to replicate "A Fine is a Price" just to see what happens?

09:25 CM: Yeah. So... I mean our project was part of a larger conference on replication that was held at Claremont McKenna College back in April. And so all the papers at that conference were looking at replicating different studies in empirical legal studies. And yeah. So, ours is looking at a couple of questions. So one is, it's taking more of a... In the paper, we talk about it as more of a robustness approach. So we're really trying to see if we can get the same result and also just sort of include some extra conditions to see if we could pin down which of their theories might be more influential from the original and also to think about whether the mechanism might operate differently in different settings. Yeah. And we're using a different, slightly different methodology. So it's not a field trial. So it's also kind of looking to see, "Well, how robust is this to different kinds of common strategies people use in empirical legal studies?"

10:31 MS: So the burning question is what happened?

10:32 CM: Yeah. Well, so for our study, we essentially use an experimental survey. So we sort of set this all up like you're at a daycare and here's how it works and how late would you be and... Right? So... And then we introduce the fine. So, you know, we kind of set it up so that it will mock the conditions in the original. And so we actually... We don't get the same result. We get the result that you would probably expect in that when we introduced the fine, people say they would be less late. And when we take it away again, people go back to being sort of the same lateness that they originally said they would be.

11:16 MS: Okay, so the intuitive response.

11:19 CM: It's the... Yeah. So it's more the sort of... It's more the intuitive response and also sort of maybe more of the kind of rational choice story about how fines work.

11:28 MS: Right. So is this... Is this a result of... Because you've changed a few things.

11:34 CM: Yeah, we changed a few things.

11:36 MS: So is there kind of a real world to survey differential that makes a difference here?

11:41 CM: So, you know that's a really good question, right? So one of the things people do say about surveys versus, say, a field trial is "Well, it can be different what people think. They would do versus what they would actually do." Okay?

11:54 MS: Yeah.

11:55 CM: I mean, I think that's less of a problem for us here because in some ways, these theories that the original authors put forward to explain their results, are really about ways the fine should change people's perceptions of the context. And the reason why they didn't change when the fine was removed is mostly because people really changed the way they thought about the problem. So I think in that kind of a setting, that's the theory you're trying to test that this difference between what you think you would do and what you might actually do when you're late and your car's parked far away or whatever, it's less of a sort of serious concern that the research method we've got doesn't match.

12:31 MS: Okay.

12:31 CM: Yeah.

12:31 MS: And you said you were working with colleagues on this?

12:42 CM: Mm-hmm.

12:42 MS: How does that happen? How do you find and connect with people that you wanna do these projects with?

12:47 CM: Yeah. So some of them I had started working with on a different project that uses lab experiments to look at the incentive effects of tort law, and I had met one of them at a conference and seeing their presentations and talked to them, and then another one I knew from different conferences, and... So a lot of it is you just meet people when you're sort of out and about talking about your research. And yeah. Then you can start collaborations, and...

13:19 MS: And what's the time frame for this kind of work? How long do these pieces of research usually take?

13:25 CM: I mean, when you're doing empirical work, it can tend to take a bit longer. So it's, you know, you... And also, this is work because it's a survey. It uses human subjects, right? So you have a process where you have to design the surveys and you have to get ethics approval and then you have to just sort of pilot it to make sure that you've got what you want and then you administer the thing. You can get all the data together and you have to analyze it, and so it takes a while. Yeah. Like it would be... You know it's over a year that I've been working on this project and it's still not totally finished. So...

14:02 MS: And what is the end game for this kind of research? What is it toward?

14:07 CM: Yeah.

14:08 MS: Is it publication in a journal?

14:09 CM: Oh, yes. Yeah, yeah. So you would definitely publish it in a journal, and the piece that we're doing was part of a conference, but the idea is it would be part of a special issue of a journal. So, yeah, for sure, we're hoping to publish the piece, and then it sort of becomes part of the larger body of work. You know. And... So our study, we did the replication of the daycare, but we also had another scenario where we looked at this same mechanism in a tax compliance setting, right?

14:42 MS: Okay.

14:43 CM: So then it sort of fits into different literatures and we can kind of get a sense of when, if this is a real effect, when might it show up and what conditions might trigger it and, right...

14:56 MS: So the tax compliance part of this, that adds to what you're describing as the robustness of the project.

15:00 CM: Exactly. Yeah, yeah. So for example, one of the things we were doing was trying to use our survey questions to see if we could figure out whether the fine operated by crowding out social norms or by just signaling consequences about enforcement. And it turns out that actually our results show that this is different across our two settings. So, in the daycare setting, we did see some changes in the way people thought about the daycare workers that suggested, "Yeah, it did kind of crowd out people's concern about making them wait." But in the tax setting, we didn't get any sort of crowding out about imposing on others or undermining tax morale by sort of tax cheating. But we did see that people changed their perceptions in terms of their fear of consequences. So you know that kind of tells us it's important to think about what setting we're in because these kinds of effects may work differently in different settings.

16:09 MS: And I guess this is the point where you can just sort of start theorizing of, "You know, I have a personal relationship with my daycare worker, but I don't have a personal relationship with an abstract tax person, somewhere doing tax things." But is that sort of a danger of this kind of thing is that you can easily jump into why you think something's happening?

16:29 CM: I mean I don't think it's necessarily a danger. I mean I think what's the sort of danger is when we take one or two studies and put too much weight on them and then build up a whole sort of theory based on one or two data points, right?

16:47 MS: Right.

16:47 CM: Because each study essentially really is like one observation.

16:51 MS: And that brings us back to replication.

16:52 CM: Yeah. Exactly, right? So I think, you know, one of the things that replication hopefully does and the sort of focus on it, is to remind us that any sort of empirical work is... You kind of... I think you best think of it as sort of contributions to a larger conversation where in order to really understand what's happening, we need a lot of different people to contribute and we have to sort of look at the whole landscape and not put sort of too much weight on any particular result, but maybe...

17:27 MS: But how...

17:27 CM: Especially if it's surprising.

17:29 MS: How do you know when to stop?

17:30 CM: How do you know when to stop? Well, you never stop. That's the beauty of being a legal academic. [laughter]

17:34 MS: Right. But I mean, theoretically... Like someone could try to take what you've done and make it more robust.

17:38 CM: Yes.

17:40 MS: Or try a different kind of thing.

17:40 CM: Yeah, yeah. I mean, you know obviously there's a certain amount of value added to doing extra studies. So you know as a researcher and as research communities, you have to decide where the best place is to spend your time. Finding tiny little improvements or things that don't change things a lot, you know that stops being worth spending the year on. So I think that's part of once you get a sufficient body of knowledge built up and you think you have a fairly robust understanding of the way that some mechanism works in different settings and contexts, then you can move on and look at something else.

18:20 MS: But in the research community, is your getting different results from the original study kind of a signal that we need to do more research?

18:28 CM: Maybe. Yeah. [chuckle] I don't know. I guess... You know like we'll see. Maybe people will think, "Oh, it's more about, you know, here it just shows that it was a different response, one we would expect, because maybe when you ask people and the fine's in front of them and it's all sort of compressed in time, it just was really noticeable. And so, of course, that's what they focused on." But in the real world, it might not be like that. So, you know, I think one of the things the study shows and the fact there's different results shows is that if we wanna be confident about the way a particular legal policy would work, say, we may need to have different kinds of research about it, right?

19:11 MS: And it comes down... I mean as you were saying before, it comes down to the end, it's people making decisions.

19:15 CM: It's people making decisions, right? And so I think, you know, this is part of the benefit of interdisciplinary research in the law is ultimately we're concerned with the way that law works in practice, right? And you know we have different theoretical perspectives in thinking about what do we think law is doing, how do we think people respond, how do we think people behave in reaction to it, and it's good for us to sort of get out there and have some sense of how those questions are answered in the practical world so that we can, as legal academics, can keep thinking about law in a way that makes sense and resonates with the people who are affected by it.

20:03 MS: And I think that's an important thing to bring up is this isn't stuff that just kind of exists in this rarefied theoretical space. It translates down into people making decisions about policy and people making decisions about what the law should be at the end of the day.

20:17 CM: Sure, right? So, you know, examples from this research, you could think, "Where is an application where we might think about this being interesting or relevant?" Well, let's say that we're trying to find ways to get people to curb their water use. How should we go about doing that? We could think, well, actually maybe we really just wanna appeal to people's social norms and values, or... And sort of just emphasize this is really important because it's a scarce resource and we need to do that and your neighbors are doing it. You're using more than your neighbors. Or maybe we should put in place fines or a price for using water so that it's not free anymore. And so, research like this goes to the question of, "Well, what are those different policies gonna do?" Like, which one is gonna be more effective in terms of actually reducing water use if that's what we wanna achieve?

21:15 MS: What's actually next for this paper? It's the conferences next?

21:19 CM: So, I'm going to the Conference on Empirical Legal Studies in just over a week. And so this project is in their poster session. So they have a poster session as part of their conference and everybody at the conference gets to come around and see your posters and you can talk about your research. It's actually a really fun session. I know a lot of people are in that session, so I'm looking forward to doing that 'cause I'll see what people think and hear people's feedback and...

21:49 MS: Is this kind of like a science fair?

21:51 CM: It's... Well, [chuckle] I guess it's like a little mini science fair. It's pretty small. I mean there's not that many people who would be in the poster session. But yeah, it's a little bit like that. Yeah. Yeah. It's actually... I think it's... Certainly in the sciences, using posters to present your research, is a way more common kind of thing, but it's common in empirical conferences, in social sciences too.

22:14 MS: So the outcomes of this is there's the conference. There's potential publication and then is that... When do you stop research? Like what is sort of the stopping point?

22:23 CM: What's the stopping point?

22:24 MS: Yeah.

22:26 CM: You know, I mean sometimes you can think about extending beyond the settings that you're doing or, you know... So ways you can think about extending this project could be to think about, "Well, is it sort of interesting enough that we should maybe try doing a field trial?" So going beyond this methodology to see, "Okay, well is it actually something about the survey approach we used here that explains the fact we got a different result? What would happen if we did it in a different setting?" You know again, it's kind of like a cost-benefit thing a little bit, because it depends what else you're involved with and how much time you have for research and whether there's other projects that you think... You know there's... It's more beneficial to start something new in terms of doing it yourself as opposed to working on the extra refinement or something that's just an extension of other research you've already done.

23:22 MS: Are your colleagues on this, are they also all law and economics researchers, or...

23:30 CM: So, one of them is actually just an economist. He's a straight-up economist. So he doesn't know anything about the law, so he has to let us do that part. Another one is... Yeah, I think he... You know he definitely does sort of law and social science, law and economics. I don't, he's not maybe not quite as technical, so his doctoral research was in law, not another discipline and then another one is... You know, she has pretty extensive training in economics but she's maybe a little bit more on the law side. So it's a good mix.

23:58 MS: Okay.

24:00 CM: Yeah.

24:00 MS: Thank you very much, Cherie.

24:01 CM: You are welcome Matt.

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24:04 MS: Thanks to Cherie Metcalf. If you're studying, well, anything at all really, talk to your professor about their research. You'll be glad you did. Cherie is the Constitutional Law module author and instructor from LAW 201/701: Introduction to Canadian Law. You can also take our deep dive into Constitutional Law with LAW 205/705: Public & Constitutional Law which gives you a full course on division of powers, citizens rights, how our judiciary functions, and more taught by Jonathan Shanks. You can learn more about it at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton who's also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.

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We all know the deal: kids are good, Santa gives them presents. But is this a contract? And if it is... who's contracting with who? Law 201/701 and 204/704 course developer, and contracts expert, Peter Kissick weighs in on this holiday tradition.

Content warning: not for children who don't know certain things about Santa yet!

If you're interested in contracts and contract law, we have a great primer in Law 201/701: Introduction to Canadian Law. Peter also brushes up against contracts in his Corporate Law module in that course. For the deep dive, follow Peter down the business-law rabbit hole with Law 204/704: Corporate Law.

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Transcript:

 

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd. A while back I wrote Peter Kissick an email with the subject line, "Let's ruin the holidays forever." Peter is the creator and instructor of our corporate law course, law 204/704 and the related module in law 201/701 introduction to Canadian law. He's also a fun guy to explore some weird territory with. What I wanted to talk about with Peter was Santa Claus. Santa is not part of everyone's holiday tradition but is a cultural figure at this point. And even people that don't have a holiday tradition that involve Santa Claus are probably aware of the deal, be good and get toys. We threw that idea through a legal lens to see what comes out the other side. This podcast is not legal advice and is being presented for informational purposes only. It's also for audiences that have come to a certain understanding about Santa Claus. So it might not be for younger listeners. Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find it more at takelaw.ca.

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01:23 MS: Peter, the holidays are for everyone, we know that. Everyone, everyone's got their own takes on the holiday, but today we're gonna be looking at a particular angle American phenomenon, which is Santa Claus. And the thing I'm curious about, I wanna ask you about is, I've grown up under the understanding that there's a promise, there's a compact, there's an idea where if you are a good boy or a good girl, you can write a letter to Santa and Santa will bring you gifts, and not knowing that much about the law, but knowing that there's this whole structure of things called contracts that you talk about in your corporate law course. What's going on? Spoiler Alert, if you have any small children maybe move them away from the computer. We might be discussing things about Santa that they may not be aware of yet, but putting that aside, let's assume that there's a jolly old elf and he lives in the north pole, and he will give you gifts if you're a good little boy or a girl, and you write him a letter and etcetera, etcetera. Is there a contract in there?

02:31 Peter Kissick: I'm sensing that that maybe you had unfulfilled expectations earlier in life and you need to know whether there might be a lawsuit here or just curious about that.

02:40 MS: There's a Starsky and Hutch car, in the late '70s, there might be some unresolved issue.

02:47 PK: Fair enough, fair enough, I' statute limitations as probably passed, but let's just deal with your core premise here.

02:54 MS: Right.

02:55 PK: Can Santa breach a contract? Or put another way, can the child who writes that letter actually form a contract? Well, to get to the boring part of definition of law, a contract is a set of promises the law will enforce, which is about a circular definition as you can get, the law is full of circular definitions, but it of course begs the question, "Okay, what promises are enforceable?" So if I say to you Matt, "I promise to buy your car for $5000," and you agree with me, we've each promised to do something, you've promised to give me your car and I promised to pay you $5000, that's simple.

03:37 MS: Okay, yeah.

03:38 PK: Fair enough, that's easy. Okay. So let's say it's little Mathew is writing to Santa, and Matthew is asking Santa to bring certain gifts. And in return, what are you promising?

03:55 MS: I'm promising good behavior, I guess. Just say, "I have been a good boy all year and in return I would like something." Oh okay.

04:05 PK: Okay, there's a quid pro quo there 'cause you wouldn't be good other than if you were promised to get some stuff.

04:13 MS: I think we're getting into the cultural premise of Santa. But yeah, I think so, I think it's not uncommon for children to be on their best behavior. The Elf on the shelf thing, coming up to the holidays.

04:26 PK: Alright, so you would alter how you behave in exchange for the promise of getting things back?

04:32 MS: Yes.

04:32 PK: Okay.

04:33 MS: I will stop being a terrible child because I want my Starsky and Hutch car.

04:36 PK: I can't imagine you were ever a terrible child, but there you go. Generally speaking, when we're talking about contracts you've gotta give up something to get something that's the essence of a contract. And Professor Pratt, one of our illustrious professors here who teaches Contract Law I think at a law 201 course, will often refer to David Hume, the Scottish philosopher, and talk about the parable of the rational farmers, and why they would actually... Why two farmers would actually promise to give something to one another when they don't even know each other. And basically it's mutual benefit.

05:15 MS: Yeah.

05:16 PK: Okay, so you promised to be a good boy if Santa brings you stuff. Does that benefit Santa?

05:24 MS: It benefits society so indirectly benefits Santa, 'cause Santa's gotta live in the world.

05:30 PK: Okay. One thing about contracts are, they're referable to specific people, and you've gotta be promising something to a specific person.

05:39 MS: Okay.

05:39 PK: Okay, and so Santa in and of themselves does not really benefit from your promise, so that might be difficulty number one with your lawsuit.

05:48 MS: Okay.

05:49 PK: Okay. Second thing about contracts, are they tend to be looked at as economic events. So these promises have to have value. Now, by value we have to be able to quantify them. Some sage English judge once upon a time said, "The value could be a mere peppercorn." So I promised to wash your car if you give me a peppercorn, could be a contract.

06:15 MS: Okay.

06:15 PK: Okay, the promises don't have to be of equal value.

06:20 MS: Okay.

06:21 PK: Now is their economic value in Matt being a good boy?

06:26 MS: I mean compared to the... I think there might be an economic lack of value in me being a bad boy, in terms of destruction.

06:35 PK: Fair enough. Although society assumes that you will already fulfill your societal obligations.

06:42 MS: Okay.

06:42 PK: So they're not gonna assume that you not breaking... Not breaking stuff, not breaking your civic duties, that's not really the benefit.

06:53 MS: So the absence of positive behavior or the absence of negative behavior isn't positive behavior, it's just neutral.

07:00 PK: That's correct. It would be like saying if you don't enter into this contract with me, I will break my contract with you. That is not a positive benefit that contract law would recognize. And this concept that we're talking about here is the contract law term is Consideration. You have to provide consideration to the other party for their promise.

07:24 MS: So, consideration is the exchange of value.

07:26 PK: Right. It's the price I'm gonna pay so that you promise something back.

07:32 MS: Okay.

07:33 PK: And it's that you will pay back to me. So again, it can't be to all of society, it's gotta be specifically to Santa, and it has to have some sense, someone to value.

07:44 MS: Okay.

07:45 PK: So your case is looking a little bit weaker.

07:47 MS: Right. Because I am not giving something that is of explicit value to Santa just by being a good kid.

07:53 PK: Correct. Yeah, yeah.

07:55 MS: Okay.

07:55 PK: Furthermore, there's a little bit of uncertainty and vagueness about that. Let's say that that could be quantified and given value and Santa really, really treasured that Matt was going to be good.

08:06 MS: Right.

08:07 PK: How would we assess the performance of that promise? How much good do you have to be?

08:13 MS: Okay, that's a great question. I don't know.

08:15 PK: Exactly.

08:16 MS: How good is good?

08:17 PK: Well, so that's...

08:18 MS: Who... Do my parents decide? Do my siblings, my teachers?

08:21 PK: And really the only person who can decide that is the other party of the contract.

08:26 MS: Okay.

08:26 PK: So again we have another bit of a difficulty as well.

08:29 MS: Right.

08:29 PK: There's an interesting analogy here if I can digress for a moment. One of the things that I often ask my class is when we're trying to figure out what is and is not a contract? Inevitably, what I do is I marry off and I'm using quotes here, two members of my class.

08:47 MS: Okay.

08:48 PK: And then, of course, I play around with the facts and one of them breaks it off with the other one and I ask the class, "Did he just... " and it's always the guy. Did he just break that contract?

09:01 MS: Right.

09:01 PK: He proposed to this person, he or she accepted that, and then before the wedding, he calls it off. Is that a breach of contract? And you get all sorts of twisted logic about why this is or is not, but one of the things that the law says is how we perform... How can we assess the performance of that promise. That promise is just so vague. What would be a good performance of that, being a good spouse.

09:27 MS: Okay.

09:28 PK: And so there are certain things where the courts say, "You know what, we just don't wanna have anything to do with that. That is just too vague. That's sort of a social policy issue, that the law shouldn't even think about." So a marriage proposal and acceptance is just not considered to be a legal contract.

09:44 MS: Okay. And in the same vein, a child's promise to Santa is not a legal contract.

09:48 PK: Exactly.

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09:53 MS: Hey, it's Matt. Happy Holidays. If you wanna give yourself a pretty cool gift, write yourself a coupon good for one certificate in law. Starting in January, you can register for the certificate in law program at takelaw.ca for classes beginning in May. If you just take one course a semester online, you'll have the certificate in law from Queens University, one of the best law schools in the country by the end of 2021. We offer courses in corporate law, Aboriginal law, intellectual property, workplace law and more. No matter what you're doing in life, you can get a deeper, richer understanding of how the law affects you as a citizen and as a professional, through our program. Sign up in January and start your legal learning journey, this spring. Lots more information is available at takelaw.ca.

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10:48 MS: Now just to play around with the idea a bit more.

10:51 PK: Sure.

10:52 MS: I did take law 201 and Professor Pratt's module on contract law and he talks a bit about this case called Carbolic Smoke Ball where a company takes on an ad and it promises that it'll basically give people an X amount of dollars if they get sick after using their product and someone takes them to court, yadda yadda. But one of the things that came through from that is kind of this idea of a unilateral contract that you can... You can broadcast something out into the world saying, "We will do X if you do Y." So is there another angle on this where Santa through songs and movies and television and books is putting out into the universe, through his magical powers. He's putting out a contract that says, "If you perform some sort of arbitrary act of goodness, I will reward you with a gift."

11:38 PK: Right, right.

11:39 MS: Is there a unilateral contract idea there?

11:42 PK: Possibly, I still don't think it's firm enough for us to actually acknowledge it as a firm offer. The notion of, yeah, the notion of a unilateral contract, is there is a very firm set of conditions or a firm offer. I said it if you do X, Y, and Z, then I will do A, B and C.

12:02 MS: Okay.

12:03 PK: Okay. And I don't think we actually have that here. In the Carbolic Smoke Ball case which makes me feel nostalgic 'cause I think it was the second case I studied in law school.

12:12 MS: Right.

12:12 PK: All those decades ago. In the Carbolic Smoke Ball case, the company advertised this product saying that if you use our smoke ball that was supposed to prevent illness, and you contracted one of these illnesses, we would give you 100 pounds.

12:24 MS: Right.

12:24 PK: So there was a very easy to define set of principles there in that offer.

12:24 MS: Okay.

12:24 PK: Now the notion of unilateral contract is you make an offer, I don't have to accept it but by fully performing the obligations that, in your offer, I have accepted it by my actions. So, to analogize to our specific case, Santa says or implies, or maybe blatantly says, "If you behave well, I will give you toys."

12:24 MS: Right, and he's saying that all the time.

12:24 PK: Right. And yes, and every movie we've ever seen, seems to suggest that, right? But again we're back to the, well, how better is better?

13:10 MS: Right, okay.

13:12 PK: And so that is just, again, such a vague set of terms that I don't think we could possibly suggest that that would amount to a firm offer.

13:21 MS: I feel like we are moving sideways into a parenting strategy, which is having Santa right back and say, "These are the duties I need you to perform in order to execute on this contract."

13:32 PK: There you go. There you go, exactly.

13:34 MS: If you wash the car, mop the kitchen floor, do the dishes, brush your teeth and go to bed on time for a month, I will in exchange... Now that's a contract.

13:43 PK: Matt, where were you 15 years ago when my kids were small, writing letters to Santa?

13:48 MS: Telling you, I gotta go ahead and find some kids.

13:50 PK: You know what, you've morphed into now a parenting podcast.

13:54 MS: There we go.

13:54 PK: This is wonderful.

13:54 MS: It's excellent. So I think we've pretty... I mean there's sort of a, there's a whole other element to this where according to some of the movies and some of the stuff, Santa exists because children believe in him. It's a real Tinker Bell situation. So that does cast a different shade on it where Santa actually requires the children to believe in order to just continue being Santa. But I feel like we're getting into a law in Theology intersection might be too muddy to weigh into right now.

14:23 PK: But you are right. I think that the takeaway from this if we wanna talk about Santa or anything else, is that if you actually want somebody to do something specific for you, you have to promise them something specific in return and both parties should know what those specifics are in advance.

14:43 MS: I guess the last sort of territory we can cover in terms of Contract law and Santa is the idea of reliance.

14:50 PK: Right, good.

14:52 MS: That you can make a contract, kind of inadvertently by having someone become reliant on you to perform.

14:58 PK: Right, that's correct, yeah.

15:00 MS: So, a child doing something truly extraordinary on the reliance that they'll be rewarded, that there might be an angle there for the kid right?

15:08 PK: Yeah, and still I hate to disappoint all those children. You're trying hard and you're coming up with great arguments. I probably at least give you an A minus For these, [laughter] even if you may not actually be able to convince any judge.

15:22 MS: That's my gift this holidays.

15:24 PK: There you go.

15:25 MS: A minus for Peter.

15:27 PK: Yes, there is this notion of reliance and I mentioned that Contract Law's about enforcing promises. And generally speaking, the only promises the law will enforce are those that are reciprocated with this notion of consideration. What happens if you make a promise that any, it's quite clear that the other side would rely on, even if they've given you nothing in exchange? Okay, what's known as gratuitous promise.

15:51 MS: Can you give me a for instance?

15:52 PK: Sure. Matt, I promise since I enjoy doing this podcasts so much that I'm going to contribute $5,000 a year to Queen's Law, going forward.

16:04 MS: Oh sweet.

16:05 PK: Okay? There you go.

16:05 MS: Now Queen's Law is gonna buy a bunch of stuff because we know you'll gonna give us the money. This is great.

16:09 PK: Yeah, exactly, perfect. Now that would be known as a gratuitous promise. I have made a pledge but you haven't given me anything in exchange for that pledge. It was made gratuitously which ordinarily is not enforceable. Kinda like me promising to do a favor for you, okay, that's ordinarily not enforceable. But, if I know that Matt is in fact going to rely on that promise and go out and buy a whole bunch of more audio-visual equipment, he can say, "You knew or you ought to have known that I was gonna rely on that promise to my detriment, and so that should now be binding upon you Peter."

16:47 MS: Okay.

16:48 PK: Now there's some controversy in our law over whether or not you should be entitled to hold me to that promise or sue me for breach of that promise. The Americans take a slightly different approach than the Canadians and the Brits on this, but I think the law's moving to a point where, yeah I think there might be in the clearest cases, a case that you can make for the breach of that quite clear gratuitous promise where there is what's known as injurious reliance.

17:18 MS: Okay. But in Santa's case, it still doesn't quite hold water.

17:24 PK: This is an exception to the rule and common law does not like exceptions necessarily unless they're very, very clear cut. And I'm still thinking that, okay, what level of spectacular behavior is actually gonna be clear-cut?

17:40 MS: Okay, excellent.

17:42 PK: I think so. So again, you're trying hard. You're coming up with some great arguments but I think you're getting cut down by the consideration rule. The fact that there's gotta be value in your promises, that they've gotta be clear and then ordinarily, just promising something isn't enough.

18:01 MS: Okay, but hey, we got some parenting tips.

18:03 PK: There you go.

18:03 MS: Excellent.

18:04 PK: Excellent, very good.

18:05 MS: Thanks very much Peter.

18:06 PK: Oh my pleasure.

18:09 MS: Thanks and happy holidays to Peter Kissick. Contracts are everywhere, from your daily cup of coffee to multinational corporations. If you wanna learn more about contracts, we a have a great module in LAW 201/701: Introduction to Canadian Law. If you wanna dive into Corporate Law in-depth, Peter is the creator and instructor of our Corporate Law course, LAW 204/704. You can learn more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who's also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.

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There's been a huge change in international law, with global and far-reaching implications: learn about the crime of aggression from the man who literally wrote the book on the subject: Noah Weisbord, a Queen's Law professor and the designer/instructor of the International Law module in Law 201/701: Introduction to Canadian Law.

 

 

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Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd. No matter where in the world you live, you should know that something has changed in international law, something big. For the first time since World War Two, the international legal community can find individuals, like heads of state, and military officials, responsible for crimes of aggression. What does that mean, and why is this such a big deal?

00:29 MS: Noah Weisbord is a professor at Queens Law, and the creator and instructor of the international law module, in law 201/701 Introduction to Canadian Law. He knows a bit about the crime of aggression, in fact he's written a whole book about it, which is topping Amazon sales charts and receiving accolades across the globe. We're having our own book launch event for the crime of aggression on November 11th, following events in Montreal, New York, and elsewhere. Noah sat down with me to talk about the crime of aggression. What it means and how the term is being updated from a modern world where drones and cyber attacks are creating new ways of waging war.

01:07 MS: This podcast is not legal advice and is being presented for informational purposes only. Fundamentals of Canadian law is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:36 MS: How has the book done since its launch?

01:38 Noah Weisbord: I've been really kind of surprised and delighted. So the book was Amazon US, number one New Release. Philip Sans who's one of my favorite authors, he wrote a book called East-West Street on the origins of genocide and crimes against humanity, it was a best seller everywhere, called it a book of singular importance intelligence and insight on a subjective of enduring significance. I'm feeling good about how it's doing. I hope that people pay attention. I think that this is one of the most important issues of our times. The shift towards authoritarian rule, mixed with lower barriers on aggression, against other states. I'm very concerned about this, the transformation of warfare and the move towards authoritarianism, and this book deals with those two themes.

02:31 MS: And I think a lot of people can be nervous about reading, writing by academics, 'cause I think it's gonna be very academic writing, but there's been some reviews that have said you kind of hopped the barrier, that the book is, it's accessible.

02:42 NW: Yeah, it's supposed to be kind of a series of stories, a history, it's got characters. It's got villains it's got heroes. So I think it's accessible to someone who's interested in these issues, and hopefully a broader audience will become interested in it as well. It's a story, really, it's more of a story than a theory. And the concept is an old one, it tracks 100 years of diplomatic negotiations over this holy grail of international law. Holy grail of international law is to hold an individual leader like a president or a prince responsible for waging an illegal war.

03:27 NW: So this started as a discussion around World War One, there was an attempt to create a prohibition where the Caesar who is supposedly responsible for World War One according to a lot of people, would be held accountable for the war itself, would be prosecuted by an international tribunal held accountable. Then in World War Two, afterwards, there was the trial of the Nazis for the invasions of Poland, Czechoslovakia, and number of other countries. So individual Nazis, Hermann Göring and others were held accountable for those invasions. And then basically this idea went into a deep sleep throughout the Cold War, because the Americans and the Soviets couldn't agree on a definition. But this is the holy grail of international law, because it would mean that the prohibition on the use of force would be individualized and these leaders could be captured and tried.

04:27 MS: Right. And so what you're saying is, for a long time, basically the US and the Soviet Union were such power players, that if they couldn't agree on this, then it couldn't happen.

04:37 NW: Absolutely, 'cause it needed to be established by a treaty that all of the states, or at least a great many states would agree to. And very difficult to come up with a definition of an illegal war, which individuals are gonna be held accountable, is it just gonna be the president or is it gonna be the minister of defense, the generals? How far down does it go? But I need to add something. Is that until very recently, until December, 2017, when the new law was actually activated over this 100 year attempt to define it, gets activated in 2017. What existed at the time when it came to prohibiting force, was that there was no prohibition on force prior to World War One, there was no blanket prohibition, states, presidents, princes could wage war as they please, they were free to do as they pleased when it came to...

05:32 NW: It was like a form of law enforcement. If another state wronged you, you could go and invade them and force them to make it right. World War One happened then, empires crumbled, states went to war. Tens of millions of people were killed in this war. And then states tried to build an international system collective security. But it wasn't individuals that were regulated under the system, it was states. And there was no prohibition on war, they could wage war as they please, so long as they first tried through the League of Nations to resolve their dispute peacefully. So there were procedural steps to try to resolve the dispute, and if those didn't work, then the state could wage war against the other state. That system collapsed in the 1930s with Hitler. And with the end of World War Two, two important things happened. First, the creation of the United Nations. It was like the league, but strengthened, but more robust enforcement system of the Security Council, the great powers in charge of enforcing international law.

06:42 NW: In parallel with that, the Nuremberg trial, where the Nazis were tried for crimes against peace, which is now called the crime of aggression, that's the subject of my book. Crimes against humanity, which are widespread attacks on the civilian population of genocide, was a category of crimes against humanity at the time. And war crimes, violations of the laws and customs of war, shooting prisoners of war, using prohibited weapons like poisonous gas, things like that. So at Nuremberg, these individuals were held accountable but the prohibition on force who was created by the United Nations, only prohibited states from invading other states, that's collective responsibility.

07:26 MS: Right.

07:28 NW: My regret, and the regret of Benjamin Ferencz, the Nuremberg prosecutor who kind of championed this idea, he was one of the key players in the drafting of this new crime. The biggest regret was that the UN Charter and the Nuremberg idea that individual leaders would be held accountable, weren't combined at the time. That would have made it so that it would be easier to enforce international law, 'cause it would be just against an individual, not against an entire state, a collective.

08:01 MS: But why is it so important that individuals be held responsible? 'Cause I mean, it takes a village, right? It takes a whole state to go to war, there's a lot of people there. So why is it so important that an individual be singled out as responsible?

08:15 NW: Okay, so this is the central question. Basically the root of this whole discussion is, whether wars are caused by abstract forces, you know, a state competition, economic inequalities, or whether they're caused by individuals that decide to bring their nation to war. And I think that this debate has been playing out for the last 100 years, underlying the discussions over the crime of aggression. And I think we're starting to realize now, since 2016, we've realized how much power the leaders of states, for example, the American leader, and leaders in Europe, and autocratic leaders in Turkey, Venezuela, we're starting to really realize that the social and historical forces can be in place for war, the competition can be in place, but what's required is pyromaniacs to light the world ablaze.

09:07 MS: Right. And this has been raised before on sort of domestic grounds. I remember when Obama assumed the presidency, and people said, "Well, you should prosecute George W. Bush for war crimes." And he was like, "What's done is done." So is there a reasonable hope that this will happen or is there just gonna be a general political leavening of things where people will be like, "Well technically we could do this but why stir the pot?"

09:34 NW: We know that autocratic-leaning leaders are scared, we know this because they're exerting a great deal of effort attacking all the international justice institutions and all of the post-World War Two checks on their power now. In my entire life, I've never seen such an onslaught on the rule of international law as I have since 2016. And I'd say the highest point, the most aggressive point of this onslaught was John Bolton being appointed National Security Advisor to Donald Trump. This is a man who said that the best thing that could happen to international law is that the top, I forget, maybe top 10 stories of the United Nations be wiped off the face of the planet. He said that International Criminal Court is dead to us in his first speech after being appointed by Trump. Basically, rather than focusing on preventing autocratic leaders from torturing and targeting their populations from waging terrible wars, from stealing the money of their people, he focused on attacking the institutions that would prevent these kinds of abuses. And we knew then and there that something was happening, that there was a certain defensiveness that came of this, and that means that now is not the time to let off on the institutions. Now is not the time to let off on the United Nations, the International Criminal Court, and any other emerging institutions to hold leaders accountable. You gotta put on the gas now.

11:08 MS: Right. Your read of it is, is this aggression towards the institutions as people being nervous about the institutions?

11:16 NW: I think that John Bolton, potentially, could be the first defendant at the International Criminal Court for the crime of aggression potentially. The crime of aggression is the planning, preparation, initiation or execution of manifest violation of the United Nations Charter, which is a big mouthful. But basically there's a list of acts that amount to acts of aggression, bombardment, blockade, attacking the Armed Forces of another state, sending armed bands to attack another state. These are lists that came out of negotiations, since 1933, this list was in place. And so it's one thing that this law does, is it is the clearest most specific prohibition on illegal war that's ever been. And it's been accepted by consensus, by 123 states in the world after a long series of negotiations.

12:17 NW: Second thing that it does, is it doesn't just give the International Criminal Court another crime that it may or may not be capable of prosecuting, depending on how much leverage it has politically at the time. It hands this crime to 123 states parties, regional courts that can try leaders for aggression, the domestic courts of Russia, Germany, approximately 40 states having their domestic criminal codes the crime of aggression. Right next to manslaughter, murder, theft. It creates a international justice ecosystem, with the capacity to result in accountability for these aggressors. So okay, is it gonna work? Not sure. My prediction is that the first aggression cases will be self-referrals, like the first genocide and crimes against humanity cases. So, a successor regime, just imagine the United States, would hand over, imagine Bernie Sanders or Elizabeth Warren or Kamala Harris president coming in, and deciding that accountability was important, the rule of law has been eroded under the last president, and we're going to refer our own situation to the International Criminal Court for prosecution. Meaning that John Bolton or some other Trump administration officials implicated in some sort of illegal wars would be tried in The Hague with the consent of the United States.

13:50 MS: So this is a national self-referral. Does the nation refer itself, or does the nation put forth the individual? Would the United States say, "Donald Trump, this guy, this is the guy, you got to prosecute this guy, we're the United States but we still think he's gotta be prosecuted." Or would they say, "We think the United States is engaged in crimes of aggression. We need you to find the individuals responsible."

14:16 NW: There's a number of ways. The United States could say nothing about aggression, they could just say, "We refer our situation in relation to Afghanistan or in relation to Syria, to the International Criminal Court." And leave it to the court to find crimes within the jurisdiction, in its jurisdiction. The United States might or might not hand over its own people. It could hand over John Bolton or John Bolton could travel to an ICC state party, 123 of them, required to arrest him under the agreement. So he flies to Canada, Canada decides John Bolton private citizen should be surrendered to the International Criminal Court for prosecution. So it is a kind of an enforcement system that's complex and disaggregated, and it doesn't just rely on the ICC that has no army of its own to arrest. Every state that's a member of the ICC should participate, and civil society can help as well. There's even been private military contractors, mercenaries they have arrested in the past. And as long as those arrest don't result in egregious circumstances like torture, then you can still trial people that have been arrested by mercenaries in international courts.

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15:42 MS: Hey, it's Matt. A quick note that at the time this airs, you've got just over a month until November 30th, 2019, to enrol in our certificate in law program for January 2020, start. You can learn more about international law from Noah Weisbord, and our Introduction to Canadian Law course. And even take a really deep dive with law 207/707 International Law, created by Queens Laws PhD, Chris Waters. If you start in January and take just one online course a semester, you could earn your certificate in law from Queen's Law, one of the best recognized law schools in Canada, by the summer of 2021. In a complicated world, it's important to know what's happening behind the headlines, and in a competitive world, showing you understand the law can help you to stand out. You can find out more about the program at takelaw.ca or drop us a line at lawcertificate@queensu.ca. Back to Noah.

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16:40 MS: You said way back when this was basically stalled for decades because the USA and the USSR couldn't agree on things, and they could hold up the process 'cause they were so powerful. Since the dissolution of the USSR, the US is the world power, if they're so upset about it, why can't they just stop it?

17:02 NW: You mean stop the court from being able to function? Stop the prosecution of the crime of aggression?

17:08 MS: Yeah, if they could stop it from sort of being formalized in the first place. Can't they take it apart now?

17:13 NW: Well, now it's become a swarm. So the law itself has become so disaggregated that even if the United States blew up the international criminal court, then the crime still exist in the legal system of 123 states, and some regional organizations, the African Court of Justice and Human Rights. And it's basically become law that permeates all of these different level, institutional levels.

17:45 MS: Right.

17:46 NW: So, okay, maybe the swarm is not gonna be able to take down President Donald Trump while he's in power, for example. But certainly when the leader gets politically marginalized, geographically isolated, that's when the leader, it has been shown in past arrests, becomes vulnerable to arrest and prosecution.

18:09 MS: Right. So what constitutes a crime of aggression today? In 2019? Maybe 2020 soon. What is a crime of aggression?

18:17 NW: Well, that's exactly now the scope of which an advisory group established by the Liechtenstein mission to the United Nations is trying to figure out. So we have the traditional list of acts that are defined in the crime, Article 8 BIS of the International Criminal Court treaty sets out those acts, bombardment blockage, attacking the armed forces of another state. There's I think eight of them, seven or eight different acts. But the definition of the law itself allows for other sorts of armed attacks to amount to aggression. So the question becomes, do cyber attacks amount to crime of aggression? What about some little pinprick drone strike, occurring in Pakistan without authorization of the Pakistanis, so an illegal use of force in Pakistan may be falling below a de minimis threshold, is that amount to an act of aggression? So these are the things that need to be worked out, and quickly. Because imagine if the right of self-defense would kick in on the part of Pakistan, after a single drone strike, just across the border with Afghanistan, imagine if Pakistan could respond defensively against the United States in that case. It could open the flood gates.

19:42 NW: So there's a debate about what is going to amount to aggression. Cyber attacks affecting an election, is that an armed attack under international law these days? So there's gonna be a group of expert advisors, convening for the next number of months. First meeting is the 30th of October in New York City, where these world experts are gonna try to figure out the scope of acts of aggression and what can be prosecuted.

20:14 MS: And this will then become law once they've decided?

20:18 NW: It's going to become kind of a proposal to states. The states are gonna get involved in these discussions, and then hopefully it will generate a certain amount of momentum and will clarify what states already want to have clarified, which is when they can respond with armed force, for example. When they can prosecute somebody for a cyber attack causing massive damage to their state, things like this.

20:44 MS: Right. I mean after this it's, what is the practical implementation of this? If the international community decides that there has been a crime of aggression, you literally arrest the individual somewhere and bring them to Geneva to stand trial?

21:03 NW: Well, the hope would be that this clarification of the law will pervade every level of decision-making about cyber attacks. So when a state's trying to decide, for example, whether to send a drone or a bot to another country to cause damage in that other country, that they will have a clear line about when they know when the person making the decision can be criminally accountable. If a Canadian leader orders this criminally accountable in Canada, criminally accountable in a regional court, criminally accountable in the court of another State, Germany, Russia, Belgian. Criminally accountable at the International Criminal Court, and the whole system is disaggregated. So, the question about whether leaders, whether Vladimir Putin could be held accountable for the hacking of the US election? That would be good to know. Also the United States' leaders need to know whether if they respond with armed force to that, whether they themselves are committing the crime of aggression.

22:07 MS: Right.

22:08 NW: So it's a setting out of clarification of the loins, of The New Rules of War in relation to this evolution of warfare.

22:17 MS: And what you just said suggests that it's retroactive, as well.

22:20 NW: I won't be able to go... The interpretation itself is retroactive to the point of when the crime of aggression became activated.

22:33 MS: Okay.

22:33 NW: So, when the crime of aggression in 2018, became active for prosecution, these interpretations of what the meaning of the terms are can be applied to that. But the crime of aggression itself cannot be applied to the 2003 invasion of Iraq, it wasn't the law at the time. So aggression wasn't a crime for individuals in 2003 when the United States invaded Iraq, so it would violate the principle of legality, and not be permissible under criminal law to do that.

23:07 MS: Right. And you start thinking obviously of, you know, here is the rule, what's on the fringes of that rule, how do we sort of test this? This is just international. You can't have a crime of aggression against yourself. I'm thinking of Hong Kong right now.

23:20 NW: Oh, I see what you mean, yeah, yeah, no. It's the use of force by a state against the political independence or territorial integrity of another state. So there could be another crime though, for example, a cyber attack by the government of China against individuals in Hong Kong, there could be a way that that would amount to an international crime. So if it caused widespread destruction to a civilian population somehow, then it could be a crime against humanity.

23:52 MS: Okay. And what if a non-state actor commits aggression? I'm thinking, Mark Zuckerberg goes nuts and Facebook just is all about how much everyone should destroy Liechtenstein. He's not the state, he's not under orders from any one, he's an independent actor running a private company. But is that something that's also kind of notionally a crime of aggression?

24:14 NW: So this was debated in the negotiations, 2003 on, about whether Bin Laden could be held accountable for the attack on the World Trade Center in the United States. And the states decided that probably not, they decided that they were gonna tailor the crime to be as close as could be to customary international law and the use of force. So only the political or military leaders, or economic leaders of a state, with control of the policy of that state could be held accountable. So this is, imagine for a moment that the leader is using the state as a weapon. So the leader is pulling the trigger of the state and launching the attack, that's how the crime was designed. What I have been suggesting in these negotiations over the years that I've participated and in a number of law review articles, is that perhaps incrementally, the notion of a state can expand. The notion of the state hasn't remained stable. It's had various evolutions, and maybe one day state-like entities, like the Islamic State, the leaders of those entities could be held accountable on the crime of aggression. Evolving, evolving, like the common law does incrementally over time, so that finally individuals could be held accountable that are not connected to an organization like that, for committing acts of aggression against another state.

25:46 MS: Right. And I mean clearly, you've written the book on the subject, which is available now, but that was written at a fixed moment in time. If people wanna sort of keep up with this issue, where would they turn to? How would you sort of stay abreast of what's happening here?

26:01 NW: So there's a number of discussions going on, especially on a few websites that I really like. I love the contributions to just security. There's constant talk about cyber attacks and the use of force. There's a great piece by my German colleague, Claus Cress, that just came up. It's one of the finest pieces in the last number of years, about the evolution of the prohibition on the use of force on just security. I like lawfare, that's another site that I follow closely. And of course, the American Society of international law. So, people are speaking about this. My book was intended to be a scenario kind of futuristic scenario planning book. So the first part of the book is about the evolution of this idea, the second is about how it could evolve over time. So I'm kind of keen to see what other people think when it comes to what war is gonna look like in the future, and what law is gonna look like in the future as well.

27:06 MS: Well, thanks so much, Noah.

27:07 NW: Thank you very much Matt.

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27:11 MS: Thanks to Noah Weisbord. Noah covers the fundamentals of international law, in his module for law 201/701 Introduction to Canadian Law. If you wanna dive right into international law in depth, you can also take law 207/707 International Law, created and taught by Queens PhD, Chris Waters. Fundamentals of Canadian law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton who is also a staff member here at Queens Law. You can find out more about her music at MeganHamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers you can find her work at vdesrochers.com. Thanks for listening.

Who hasn't done... something a little out of bounds while driving? But who decides what out of bounds means? And how do those "bounds" get moved? Hugo Choquette (Law 201/701, Introduction to Canadian Law) takes us from the law of "sufficient care and attention" to how a judge defines those things in practice -- and how those definitions might have implications beyond the courtroom they're first heard in.

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Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.  

Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd, and I have once or twice texted while driving. I was just reading texts, not writing them, but it was distracted driving and I feel bad. Talking to the instructor in Law 201701, Hugo Choquette, I feel a little less bad. Not that I should look at my phone while driving but we're talking about a case that blows that out of the water when it comes to distracted driving. And then Hugo takes that case and really uses it to unpack how judicial decisions evolve over time and the effect of precedent on our legal system.

00:40 MS: It's an interesting conversation that really clarifies how judges think and how our judicial system works to shape law over time. This podcast is not legal advice and is being presented for informational purposes only. Fundamentals of Canadian Law is brought to you by The Queen's certificate in law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:14 MS: I am... I think I'm a strictly median driver. I'm not a great driver. I'm not a poor driver, but I'd be the first to confess that I am not... My hands are not always at the 10 and two position, or the nine and three, or whatever it's supposed to be these days. I have been known to glance at other things while driving. I adjust the radio while driving. But we're gonna talk today about something that kind of takes this to another level.

01:39 Hugo Choquette: Yeah.

01:40 MS: In terms of driving while doing other stuff.

01:41 HC: Absolutely, and I have to say, one of the reasons that the story caught my eye was because I've been known to have a coffee in one hand and my other hand on the wheel pulling on to the 401, and my wife always, who's a nervous driver, always tells me I shouldn't be doing that. So I was sort of caught by the story and what it implied, but you're right, it does take it to the next level. So this woman in British Columbia, Karin Jackson is her name; she was caught eating with chopsticks in her right hand and a bowl of some sort in her left hand, and shovelling the food in her mouth while she was driving on the highway. So, probably not something that would be highly recommended.

02:21 MS: Wait wait wait, so bowl in the left hand, chop sticks in the right hand. Arguably at this point, you could say she's not driving.

02:30 HC: That's right.

02:31 MS: But this was a no-hands-on-the-wheel scenario.

02:34 HC: Well, so her evidence was that she had three fingers on the wheel, but that evidence was rejected by the judge. The judge actually believed the police officer who stated that when he saw her, she had no hands on the wheel. She was essentially... Had both hands occupied with other objects, and so that was the evidence that the judge actually accepted.

02:53 MS: Okay, so she's driving, bowl and chopsticks, and what happens as a police officer basically pulls up beside her?

02:58 HC: Yeah, so basically the officer reports her to the patrol car and they stop her and she gets a ticket. She was speeding as well, but her speed was not huge I think she was 10 kilometers over the limit, but the issue is she was driving without due care and attention. So that's the charge. So then, of course, she contests this and it goes to court. So what I find interesting about the case is what happens next in terms of how the judge determines this.

03:26 MS: Right.

03:27 HC: So, the first thing the judge will do, of course, is look to the law that applies, and in this case we have the BC Motor Vehicle Act, and the section basically says, "No one will drive without due care and attention." So, there's our rule, there's our legal rule that we have to apply. But of course, you can see the problem with this. What does that mean? It's very vague; one person's due care and attention might be another's distraction.

03:52 MS: Right.

03:53 HC: So the judge really has to sort of parse that out and explain what it is.

03:58 MS: I mean, right there is clear. There's sort of some notionally clear parameters there. I can't be asleep.

04:04 HC: Right, of course.

04:05 MS: I've got to have my face more or less forward. But yeah, what is due care and attention?

04:09 HC: That's right. So there's a few things that we know already, so we know that it's an objective standard. That means it's not about whether the person thought they had sufficient care and attention, it's whether objectively the reasonable person would think that they were driving with due care and attention. So we know that and we know that, again, there are those basic parameters as you were saying, that you can't be drunk or you can't... There's those things. But beyond that, we need to look at what else might this imply. And the normal process, of course, would be to look at other cases. So, under normal circumstances you would say, "Well, what have cases that have come before said about this issue." But the particular problem in this case is that while there have been many cases of cell phone use, for example, and other things... At least as far as British Columbia was concerned and that's what the judge mentioned in the case, there hadn't been a case of eating food while driving; that just wasn't a scenario that had come up before. The closest equivalent was a situation where a man was driving with his dog in the car, and the dog actually went on their lap and caused them to be distracted and caused an accident. So that was sort of the closest equivalent they could find to this sort of scenario.

05:18 MS: And the equivalents are important because this is... We are in a precedent-based system.

05:23 HC: That's right, yeah. So the common law system, which is what we have in the common law provinces in Canada basically means that decisions get made on the base of precedent, so basis of decisions that have come before that judges are either in some cases, bound by if they come from a higher court or at least have to follow in some way. And so, the usual process would be you would look at similar cases and say, "Well where does this fall on the spectrum of those cases? So, the challenge here being there are no cases that really have this, are directly related to this situation. So it's a bit of a novel situation.

05:56 MS: Right.

05:56 HC: So what does the judge do in those situations? And I think what the judge did actually really exemplifies how the common law evolves, how our law evolves in the day-to-day application. So what the judge did really was two things that I think are significant. He sort of extended the law logically, but incrementally as well. So he created a logical extension to what we already knew from the case law, but he was sure to limit it, so that it wasn't a huge change in the rule. It's a slight change that sort of modifies what we know already. So the judge decided that the rule would be that you have to have one hand on the wheel at all times, and that if you don't then that will constitute driving without due care and attention.

06:41 HC: But what's interesting about it is if you sort of unpack... And the judge doesn't really go through this whole reasoning process, but if you kind of unpack where that might come from you can kind of see how it's an incremental extension of the law because we know for example, that cell phones, particularly hand-held devices are not... Are considered to be enough of a distraction to meet that standard. So if you're using a cell phone that's not a hands-free device you're normally found to have been driving without due care and attention.

07:10 HC: And if you think about that part of the reason for that is because, of course, the cellphones is distraction, so it's a mental distraction, but it's also because it's a manual distraction, so your hand has to be on the device or handling the device, and so it's unavailable to sort of help steer the steering wheel, so to help guide the car. Now, I think most people would agree, and again this is where it sort of the logical extension part comes in. I think most people would agree it would be a bit extreme to require people to have both hands on the wheel at all times.

07:41 MS: Right.

07:41 HC: And so again, I'm not inside the judge's head, but you might think that the judge would think, "Well, that can't be the rule because that would seem a little too extreme."

07:51 MS: So is there kind of... Like you said, "We're not in the judge's head," but is there sort of a historical component to that? People have been changing... They've been retuning their radio for decades, so there's a very long history of people driving with one hand on the wheel. Watch movies and TV people kind of famously drive with... It's cool to drive with one hand on the wheel.

08:12 HC: Yeah, absolutely, and that plays into it as well. So societal norms and expectations also come into play here, and while we have changed our views around such things as drinking and driving for example, and also to a large extent, I think we're more conscious of the idea of inattention behind the wheel and what that can 'cause, also, because there's more traffic. At the same time you're absolutely right, that I think part of this is you can't have a rule that is so completely out of sync with societal norms. If you were to say, "Well, a driver has to have both hands on the wheel at all times in order to be driving with due care in attention," I think that would be too extreme, and it would be out of sync with precisely what you were saying, that that social norm that this is in some cases is not an issue.

08:56 MS: And it would become, practically speaking, unenforceable.

09:00 HC: Well, absolutely, and...

09:02 MS: You'd need armies of police.

09:03 HC: Exactly. So, that's another concern of course. And you're absolutely right, the enforcement of the rule has to be something that is possible; otherwise the rule isn't really serving useful purpose.

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09:16 MS: Hey, it's Matt. A quick note that this is airing in late September, 2019. So you have about five weeks to enrol in our certificate in law program for a January, 2020 start. We're offering Introduction to Canadian Law, Workplace Law, Public and Constitutional law, and Intellectual Property that semester. If you're interested in this interview so far, Introduction to Canadian Law provides an overview and Public and Constitutional Law is the real deep dive on these subjects. If you start in January and take just one online course a semester you could earn your certificate in law from Queen's law, one of the best recognized law schools in Canada, by the summer of 2021. It's not too shabby. You can find out more about the program that takelaw.ca or drop us a line at lawcertificate@Queensu.ca. Back to Hugo.

10:09 HC: So based on that, then the judge decided that the rule should be that you have to have one hand on the wheel at all times and that hand cannot also be holding another object. So he also dealt with the issue that Ms. Jackson was saying, "Well basically I had three fingers on the wheel, but even though I was still holding the bowl," That wouldn't qualify either because that hand that is on the wheel has to not be also preoccupied with another object. But what was interesting about it, the judge was also very clear to limit the impact of this to saying that he was not saying that anyone who drives while eating will be found to have been driving without due care and attention.

10:48 MS: Right. I got a granola bar. I can still manage myself according exactly.

10:53 HC: Right. Exactly. So again, the test still remains in all the circumstances, "Did you drive with due care and attention?" But now we have a case that actually establishes some sort of standard for that in the case of eating at behind the wheel. So it actually allows you to guide your behavior. If you know that if you are holding an object with you one hand that's on the wheel and have an object in your other hand and you only have a finger on the wheel, that is going to probably cross the line into driving without due care and attention. Now, nothing's ever 100% certain in law because it always depends on those circumstances, but what's interesting about that is that we now have a rule that has become the new precedent. And so if this issue comes up to courts again, they will look to that case to say, "Well, this is what the judge decided in British Colombia and this makes... " They will either decide to adopt that as the rule that this makes sense or the lawyers in the case will have to find some way of distinguishing it from the new situation, but it's a really interesting way of showing how those rules get evolved in the case law.

12:00 HC: Even in situations where you don't have relevant precedent. And again, I think what's important to stress is that it has to be a logical extension, so it's not something that is completely different from what came before, in terms of the logical connection to the actual rule that is driving with due care and attention, but it's also incremental, in that it's limited and it's deliberately limited by the judge to a small subset of new situations; not suggesting that all eating behind the wheel for example, will be caught by this rule.

12:37 MS: And you mentioned something just about a minute ago, that I think is important as you sort of mentioned that this is a case that may set a precedent outside of BC. This is not locked inside British Columbia's borders. This is a precedent that can serve in common law jurisdictions period.

12:53 HC: Absolutely, and so because of the fact that this issue is unlikely to have been brought up many times before, it's sort of not something that you see very often brought to court. It absolutely, certainly in Canada, a decision from another province will be very persuasive, but also in other jurisdictions like the United States this maybe looked at as a precedent for decisions, largely because the common law system is largely the same in those jurisdictions, but also for this particular situation, motor vehicle statutes are also likely to be very similar. And so, the Ontario Highway Traffic Act for example, would have a similar provision. And so the interpretation of that provision would fall along the same lines. And so, yeah, it really is, it's a case that could start a whole other line of precedents and provide guidance for other courts, but also for how people in their day-to-day lives actually make decisions.

13:48 MS: So I wanna go off on a bit of a tangent and then back to the one hand on the wheel thing, but on a bit of a tangent is what makes this unusual what the person behind the wheel was doing, or was what makes this unusual the fact that she actually contested it? 'Cause I feel like as someone who has spent a fair bit of time in the highway people doing goofy stuff in cars is not... It's rare enough that we're not all dead, but it's not that rare.

14:14 HC: No, and I have to say I've seen my share of things people putting their makeup on and other kinds of things like that. So you would think that this kind of thing would not necessarily raise too much scrutiny, but I think what's happened is... And what's interesting about the case too is that only a few, I think it was a few weeks or months before, the RCMP had actually tweeted out a picture of someone driving with no hands on the wheel and suggested that that might result in a ticket.

14:43 MS: Right.

14:43 HC: They had anticipated this sort of thing, but I think it's probably due to the higher scrutiny being paid to other forms of distraction, like electronic devices that we're all of a sudden discovering there are other things going on behind the wheel that might be causing the same level of risk. I think it's unusual or at least it's novel in that sense that it was brought up. I also think you're absolutely right, though, that... And one of the last comments from the judge in the case was that he wasn't prepared to reduce the fine here because of the egregious circumstances. This seems to be, I think, to most people who drive, this seems to be an extreme example, particularly on a highway of taking this a little too far. And so I'm surprised in a way that this was contested, and that's important to understand as well for the legal process because the only time a decision really gets made on a case for example or in a situation like this is when it's contested. The police might have issued a number of tickets for that reason before, but if the person who received the ticket simply paid it and didn't contest it, then there would be no cases to decide what the rule actually is. We only have what the police decide is their policy. So in a way, it's sort of interesting that this was actually contested and that, now we have a legal rule based on case law in this situation.

16:07 MS: So the sort of thing that might even radiate to police in the performance of their duties, that they might be on the road and be like, "Oh, not one hand on the wheel. I've got to do something." 'Cause now they know that there is sort of a standard that's been set at the judicial level.

16:22 HC: Absolutely. So, it seems to have been the unofficial policy anyway because one of the officers in the case actually admitted in cross examination that if she had had one hand on the wheel, he would have let her go. In other words, he wouldn't have signalled her to the patrol and had her pulled over. So that seems to have been their unofficial policy, but now it's reinforced by the fact that they know this is a legally enforceable rule. So of course it's gonna give them more confidence in terms of being able to pull people over and say, "Yes, we can give you a ticket for this because it's recognized that this is a... This is against the law now."

16:56 MS: So we start with a statute that's pretty vague. You have to drive with due care and attention, and that's a lot of space to play in there. And this case comes up and the judge is like, "Okay what defines this as not due care and attention." Well, it can't be eating, 'cause anyone who has a cup of coffee in the car can't suddenly be driving dangerously, that's not societally acceptable. So let's make a rule, let's say it's one hand on the wheel, that seems like a pretty solid base to stand on. But can this have unintended consequences? Like in some... I play board games, there's a type of person that plays board games, we call the rules lawyer, which doesn't necessarily reflect well on lawyers. But will they be rule lawyers out there that now say, "Oh, if I have one hand on the wheel, anything goes."

17:40 HC: It's certainly a risk. I think the important thing to remember is that the rule defines one type of behavior that might be caught, but it doesn't assume that anything else won't be. So because we still have that standard, ultimately, the ultimate standard is would a reasonable person view this as driving with reasonable... Or with due care and attention. And so that's always gonna be there in the background. So, what's clear is that if you don't have at least one hand on the wheel, you're likely it's gonna be a tough argument to make that you were driving with due care and attention. But what's less clear is that even if you have a hand on the wheel that you couldn't still, for other reasons, not be driving with due care and attention. To give the most obvious example, if you have your cell phone in your other hand we know that if you're texting with your one hand while you still have one hand on the wheel that's not going to make it okay, just because you have one hand on the wheel. So there's still that room for other kinds of behavior and activities to be caught, but at least we have some sort of standard that we know you can't fall below; you have to have one hand on the wheel at all times.

18:47 MS: On sort of a side note, reading about the case, one of the things I thought was kind of fun was at one point the defendant said that she wasn't really speeding 'cause she was only going about 10 kilometers an hour over the speed limit. And the judge is like, "No, that's speeding. You were literally speeding." So there's no fuzzy, grey... And again, this is something... As someone who drives, you're kind of like, "yeah, there's a grey zone," but I think people over time may lose the ability to distinguish what offenses a police officer made deem it worth their time to pull you over for and what's actually against the law.

19:23 HC: That's the thing, and it's actually an interesting reflection of what we consider to be the rule of law because those unofficial policies of when things get enforced actually can crystallize and almost become the law because in effect, we all know that if you drive 110 kilometers on the 401, your chances of being pulled over are minimal because other people are going much faster and it's sort of an accepted thing that the 10-kilometer above rule applies. But again, it's important to note and to remember that technically one kilometer over the speed limit is breaking the law; the law says the limit is 100 kilometers per hour. And what's interesting about that is this plays in a lot to people's perceptions of raising speed limits because you always have the two competing arguments with one side saying, "Well if we raise the speed limit, people are gonna drive even faster." Where other people will say, "Well no, if you raise the speed limits we're just going to get actually cover the actual speed that people drive." And so you always have those two competing view points and it's based on this idea that what is the threshold at which we actually feel the real limit is. But you're absolutely right that that's an enforcement issue and not a question of what the law says.

20:35 HC: And it's important because it sort of reminds us of how important those kinds of policies and rules about when you enforce a law actually matter in the application of a law. So you can have a law that says something, but if it's being only enforced in certain circumstances, then that becomes the norm, essentially, that the law carries.

20:54 MS: I guess what's really resonating for me through this conversation is the interconnectedness that law is a societal phenomenon. This judge is making decisions based on what society does and what society will bear, and society is kind of making decisions about what's kind of acceptable even though it's technically outside the law.

21:14 HC: Yeah, and then there might well be legislation being passed on this kind of topi, and I think again, what distinguishes judicial reasoning from other ways of dealing with this issue is that it's never starting from nothing in a way. Judges and how they make law, they make law incrementally, only in small steps, extensions of what's there already. Whereas a legislature could decide to rewrite, completely all the rules on driving, make-up completely different rules, and that's the prerogative of the elected legislature. But you're absolutely right that the judge isn't divorced from societal ideas of what's acceptable and what's not, and that's also where the law has to track those fairly closely in order to be of value really.

22:13 MS: And now we get to watch. We get to watch and see. Do people start citing this case?

22:19 HC: Exactly.

22:19 MS: Does it reverberate? Does it reverberate outside BC? Does it reverberate even outside Canada?

22:23 HC: Yeah, it's an interesting process because it is the start of a new legal rule that's now been put out there that may get extended, it may get cut back, it may be changed, it may be rejected completely by higher courts or other courts. There's really no saying where it's gonna go, but it's interesting in that it really is the common law in action; we're seeing it happen before our eyes with this case, how it evolves and how it changes over time.

22:50 MS: Right. Well, thank you very much, Hugo.

22:52 HC: Oh, thank you, Matt.

22:53 MS: Drive safe.

22:54 HC: You too.

[music]

22:58 MS: Thanks to Hugo Choquette. If you're curious about judicial power and the evolution of the law, Hugo delivers the basics as part of Law 201701, Introduction to Canadian Law. You can also take the deep dive with Law 205705, Public and Constitutional law, which gives you a full course on division of powers, citizens rights, and how our judiciary functions taught by Jonathan Shanks. You can learn more about these courses at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory...

23:35 MS: Our theme music is by Megan Hamilton, who's also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valérie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.

[music]

With tensions rising in the Persian Gulf, professor Chris Waters draws on his military experience to explain how water borders are defined -- and how multiple systems of definition can lead to conflict where both sides can be right in a territorial dispute. Chris is the instructor of Law 207/707, International Law.

If you enjoy the podcast, take a moment to subscribe! Sign up for our mailing list on the Certificate in Law site, and subscribe to this show on any of the major podcast platforms: Apple, Stitcher, Spotify and Google Play. Search for "Fundamentals" in your app of choice!

Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.  

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[Intro]

Welcome to Fundamentals of Canadian Law

I'm Matt Shepherd. As comedian Steven Wright once said, "it's a small world, but I wouldn't want to paint it." The world's actually pretty big, which makes international law, by definition, a big subject. So we're fortunate to have Chris Waters teaching Law 207/707, International Law, in the Certificate in Law program. He's got a gift for breaking down complex issues in easy-to-understand ways. I've been grappling with recent headlines around drone conflict in the Persian Gulf, so I was grateful that Chris could stop by and unpack it with me. I also learned the word "sinuosity".

This podcast is also not legal advice and is being presented for informational purposes only.

Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.

[Interview]

00:00 Matt Shepherd: What has sparked your interest in international law? What brought you to us to teach this course in international law?

00:08 Chris Waters: Well, I'm a retired member of the armed forces, Canadian armed forces, and throughout my career I deployed quite often on exercise and operations overseas. And later in my career, I became a military lawyer. And in that role I had to advise the chain of command and the commanding officers on what the responsibilities and limits were when in foreign soil or crossing foreign boundaries, and that increased my interest in education. I did further education, and then I turned my attention, once I retired, to teaching. And here we are.

00:40 MS: And now you're here with us. So among the many things that you were instructing people on while you were with the military, you mentioned borders, and that's kind of the reason we're talking today is something happened in June. Iran shot down a US drone, and it's made international headlines. It's been in the news pretty much constantly since then. And just idly chatting with you a couple weeks ago, you told me some amazing things about borders that I wanted to kind get you to talk about now.

01:08 CW: Yes, and I would say it's an interesting incident because... Well, not just because it's being... Between two countries that are now in a state of tension, but also took part in a place in the world where borders are often contentious, and there are competing claims for sovereignty. And what struck me was that both countries, as is usually the case, made a claim that they're in the right. Well, can they both be in the right? And that's the question. Can a drone be in international airspace and domestic airspace at the same time?

01:43 MS: And clearly not, right? It's gotta be in international airspace or domestic. It can't be in both, right?

01:48 CW: Well, it depends on which nation claims which border and how they go about it. And I can explain that in some detail, but it's... Before we start, it's important to know that the drone is a weapon of war. And the drone in question was a reconnaissance drone which was seeking information, electronic or visual, from inside Iran. And the practice is to fly along borders with your sensors aimed into your opponent's country to gather all the intelligence you need. And it calls to mind, for those who remember the Cold War, the Russian trawlers sailing up and down the 12-mile limit off the East Coast of United States collecting intelligence, electronic intelligence. It's much the same but in a modern context.

02:35 MS: So it's kind of like the kids' game of, "I'm not touching you, I'm not touching you, I'm not touching you."

02:39 CW: Yes, and it's important to know that you can do certain things on the high seas or in international airspace which you cannot do in territorial water or in national airspace, and that's the key to this problem.

02:51 MS: So how does this idea of international space and domestic space... For what you're saying to be true, they have to overlap somehow, right? So how is that possible? How can the two of them stack on top of each other like that?

03:04 CW: Well, we have to go back to basics for that. And in international law, your boundaries are defined: Land, sea, and air by international convention or custom. Right now, you're talking about land and sea borders. Your territory over which you have complete control and sovereignty goes out to 12 miles into the water from your coastline from the lowest tide point. So you have 12 miles of turf, water, which belongs to you, which as a nation-state you can control for security, for environment, for trade and commerce, and that's where the problem begins.

03:54 MS: So I can go 12 miles from my lowest tide point out into the water and that's... Unequivocally, that's inarguably my territory?

04:03 CW: Yes, that is your territory. But there are different interpretations of how you measure the 12 miles, and that's why this incident has been claimed to be right by both sides.

04:14 MS: So how can this measurement differ? Twelve miles is 12... I'm a bit surprised it's not metric, first of all, but 12 miles is 12 miles is 12 miles, right?

04:22 CW: Not only that, it's 12 nautical miles.

04:24 MS: Okay.

04:25 CW: To do this, we have to do a little mental exercise. So close your eyes and pretend you're a seagull looking down at your nation's coast from above. Your coast is on the right and your water is on the left. You can see the ragged sinuosity of your coastline. And in normal situations, in international law, 12 miles from that point is your territorial boundary. Beyond that is the high seas, generally speaking, where there's freedom of navigation. Now also, for a control of airspace, the airspace boundaries follow the nautical and land boundaries. So you have to, as you're doing your seagull thing, raise your beak, look horizontally, and imagine a column of air rising above that 12-mile limit. Inside that is your national airspace. From there, you can control entry and egress, you can impose customs, security, defense, all those things that go with national sovereignty on any aircraft, friend or foe, coming into that airspace. Beyond the 12 miles is international airspace where, like the high seas, there's freedom of navigation.

05:42 MS: And at that point, you can put your sensors up and point them into that space, and you're not violating anything because you're not actually in the person's airspace.

05:50 CW: Correct. It's annoying to the country being surveilled, but it's not illegal.

05:54 MS: Right.

05:56 CW: So the difficulty arises in the different interpretation of the 12-mile limit. Now, there are two ways to measure. One is called the sinuosity method, where your 12-mile line exactly traces your coastline: The bays, the inlets, the promontories, the cliffs. And as a result, your baseline at 12 miles follows that exact profile. However, there's another approach. It's called the straight baselines method, also recognized in international law. And it says, you can draw a straight line from two points that jut out into the water to enclose a bay. So you can say that is now my territorial water because I drew the straight baseline from point to point enclosing that bay. Now, from a security point of view, that means your opponent cannot fly into that inlet to do surveillance or any offensive incident they wish to do. Think of Chesapeake Bay, Gulf of St. Lawrence, Bay of Fundy...

07:01 MS: So we're talking about bays that must, by definition, be larger than 24 miles across for this to make sense.

07:06 CW: Yes, well, there are limits, but not part of this discussion.

07:10 MS: Okay.

07:10 CW: But for the purpose of our incident in the Persian Gulf, it's important because depending on whether you take a baseline position or a sinuosity position, there is now a little area of gray zone which both sides claim to be either international airspace or national airspace. That's where the problem arises. Now, the Americans in the Gulf have, in recent past, taken the sinuosity view. They can sail to 12 miles from the coast of Iran, Iraq, and any of the areas there. Canada has a different approach. Canada has adopted the straight baselines approach and for a diplomatic and strategic reason: It's because we want to retain control of the Arctic Archipelago. And if we use the straight baselines method, it encloses all the islands around the Arctic, including the Northwest Passage, which means Canada can claim that to be sovereign territory and therefore control entry and exit into the Northwest Passage. Those who take the sinuosity approach or view it as an international seaway say Canada cannot control passage of international traffic through the Northwest Passage once it becomes clear because it's international transit.

08:25 MS: Because they're applying sinuosity and that doesn't... The sinuosity falls short of covering the entire space of the passage.

08:30 CW: Yes. Will let ships go through. And of course, ice is considered land when it's permanently frozen, but we're losing that advantage very quickly up there.

08:41 MS: So is there one approach that is... We've spoken about Iran's using the straight line, US sinuosity, we're using the straight line. Is there an approach that's winning internationally, is it... Are we ever gonna settle on one that's applied forever equally?

08:58 CW: Unfortunately, no. International law is like English grammar; there are as many exceptions as there are rules, so it's not a settled case. It depends... A nation claims a certain space. Canada has claimed the Arctic Archipelago, but it's just a claim. It has yet to be litigated in international court to say whether it's ours or it's international space.

09:20 MS: So what... There's... It's clear that there are two established and recognized systems for these boundaries, and it's clear that both countries... I don't know if you could say in good faith, I think there's a fair amount of animosity there, but they were definitely using legitimate measures of boundary. So do they just both eventually shrug and say, "Well, no harm, no foul," and go about their separate ways or...

09:49 CW: Well, I haven't heard what's going to be the outcome of this particular incident; it's gone off the news radar. We'll never know the true facts because they're obviously kept for operational security. But it happens all the while in conflict. We think about the shooting down of civilian airliners and mistakes made like that due to similar misunderstandings of international boundaries.

10:16 MS: I never knew any of this about international boundaries before. I thought things were just getting shot down and just kind of... It was too much fuss to do anything about it, and people just kinda let these things go.

10:26 CW: Well, interestingly, civilian traffic, civilian airliners are part of an international agreement: The Chicago Convention. They're not permitted to be shot down unless they pose a deliberate threat to the country. So there's freedom of traffic passage on the air routes for civilian airliners, but that doesn't guarantee their safety, as we saw from the Indonesia airline shot down in Ukraine a couple years ago.

10:52 MS: And there's other laws that affect things that pass through boundaries, so it could be important, I guess, for air travel to know where you're passing through, at what point, to make sure you're not violating any laws in transit.

11:03 CW: Yeah. And we have to be distinct between military operations, such as conducting surveillance, moving convoys, sailing through international straits with warships and submarines, than innocent civilian commerce or passenger traffic 'cause the rules do differ.

11:19 MS: Just getting a bit trivial, what happens when countries are separated by a body of water that's less than 24 miles wide?

11:26 CW: You meet in the middle, like lake Ontario.

11:28 MS: Right, just... You divide straight line down the middle?

11:31 CW: Yep.

11:31 MS: Or is it a sinuous line down the middle?

11:34 CW: It depends on the agreement between the nations.

11:35 MS: Okay. [chuckle] Boundaries are complicated.

11:39 CW: Well it... I'm glad you said that because if you think of the Northwest Passage, you may recall that Nixon negotiated an agreement. We agreed to disagree, between the US and Canada, about the use of the Arctic. They're gonna say, "Okay, we'll use the transit, but we'll inform you and you can monitor our progress."

12:00 MS: And we'd rather they just didn't.

12:03 CW: But it's an international agreement. It's a peaceful resolution, it's a compromise, and so far has worked. What we can't control, well, not yet, is the submarine passage, submerged submarines.

12:14 MS: Right.

12:15 CW: But surface traffic is easy to monitor and control with our surveillance up in the north.

12:19 MS: Chris, international law is super interesting.

12:22 CW: It is. It's fascinating, and it's a huge topic. And what people don't realize is that every time they pick up a paper or check their newsfeed on their handheld, there's something about international law. And we don't think about it, we don't think about the foreign airliners passing over us on the way to Toronto, we don't think of driving across the border to go to Watertown or whatever, but it's always there lurking in the background.

12:45 MS: Fascinating. Thanks so much, Chris.

12:47 CW: Very welcome.

[Outro]

Thanks to Chris Waters. International Law is a huge subject, including warfare, sovereignity, and much more, and we cover the essentials in Law 207/707, International Law. You can learn more about it at takelaw.ca.

Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional [A NISH IH NAH BAY] and [HOE DEN OH SHOW NAY] territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law! You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com.

Thanks for listening.