Unpacking pipeline challenges: Fundamentals of Canadian Law Episode 11

Oil Pipeline

The Kinder Morgan / Government of Canada pipeline is being challenged by both provinces and Indigenous groups. What laws pertain to these challenges?

There’s a lot to unpack when it comes to the Kinder Morgan — soon, Government of Canada — pipeline.British Columbia has challenged it, as have several Indigenous groups. But what laws govern their ability to challenge this national project? We explore first the distinction between federal and provincial powers with Associate Dean Cherie Metcalf, teacher of the Constitutional Law module in our Introduction to Canadian Law course… and then dive into Indigenous and Aboriginal law, chiefly the “duty to consult,” with the creator and instructor of our Aboriginal Law course, Hugo Choquette.

Curious about the cases Hugo cites in his portion? Here are the links:

Haida Nation: http://canlii.ca/t/1j4tq

Chippewas of the Thames v Enbridge: http://canlii.ca/t/h51gx

Tsilhqot’in: http://canlii.ca/t/g7mt9

Tsleil-Waututh Nation Assessment of the Trans-Mountain Pipeline: https://cdn2.hubspot.net/hubfs/2551008/TWN%20Assessment%20Report%2011×17.pdf

You Don’t Really Own “Your” Land – Fundamentals of Canadian Law 10

Bayeux tapestry - Norman invasion of England

What does William the Conqueror have to do with property law in Canada? A lot! Find out more in this podcast.

Property law is complex — fee simple, escheats, and William the Conqueror all come into play when we’re talking about ownership of property in Canada. Fortunately, the Dean of Queen’s Law, Bill Flanagan, took some time out of a busy schedule to drop by and shed some light on both the laws governing land, and the “finders keepers” principle of personal property.

Join us for a fascinating conversation about history, the Crown, property ownership, playground rhymes, and more!

What Kind of Property Rights Can I Hold?

Property as a legal concept is best understood not as an object, but as a bundle of rights that a legal person possesses. The pertinent legal question isn’t what you “own” but what you have the right to do with it. We are going to focus on “real property”, which is a type of property that is associated with land and things that are attached to it (e.g. a house). The law on this is different from “personal property”, which is property not attached to land—like your laptop.

You can have many different types of interest in real property. They are different not because the type of property is different (e.g. house versus farm), but because of what the person who holds the property has the legal right to do. There are many different rights that attach to real property interests—they are wide ranging and will vary depending on the nature of the proprietary interest.

Fee Simple

The most basic kind of proprietary interest is an interest in fee simple—this is what most people are referring to when they say they “own” a house, a cottage, or a farm.

Cottag with for sale sign

“Owning” property in Canada actually means having certain rights over it. Your grandpa’s cottage is governed by the rights your grandpa has over that property…

A fee simple estate is the highest and most complete interest in the land that can be recognized by law. The owner of the fee simple estate can exercise all rights of ownership over the land infinitely.

For example, my great-grandfather owned a cottage on a piece of land up near Algonquin Park. In legal terms, what he had was a fee simple estate.

With the fee simple estate, he had a bundle of rights. For example, he held the right to:

  • Occupy the property;
  • Exclude others from the property;
  • Sell the property;
  • Rent the property (we will discuss leaseholds and residential tenancy in another post);
  • Divide the property into smaller fee simple estates;
  • Destroy the property;
  • Use the property as security, for example, by taking out a second mortgage; and
  • Will the property to his children after he died.

Unless he granted anyone else any rights, he was the only person who held these rights. His rights under fee simple were complete and indefinite.

In 2005, he passed away. What happened to his fee simple interest in that land and cottage after that? A fee simple interest has no end date— it is indefinite, meaning that it survives even after a person dies, which means that it can be willed to another person who will possess all the same rights. Even where a fee simple estate is not willed, it still exists and descends intestate to the owner’s heirs—again, this is because it is indefinite.

My great-grandfather willed the property to my great-uncle, who decided to sell it. When he sold the property, he sold the fee simple—he didn’t just sell the cottage and the land, he sold all the rights that attached to it. Because the fee simple is absolute, it means that he no longer held any rights to the property.

This is just fee simple, we’ll look at other property rights in future posts!

— Isabelle Crew, Queen’s Law’18

Be a Court Case Detective – Fundamentals of Canadian Law 007

Detective in a computer

You, too, can be a court sleuth — thanks to CanLII and the expert guidance of professor Mary Jo Maur!

Dive into the amazing world of case research with professor Mary Jo Maur, developer and instructor of Law 201/701 — Introduction to Canadian Law in this edition of the podcast! We plunge into the amazing world of CanLII, a Canadian online database that collects court decisions from across the nation, with a dizzying array of search options and ways to find exactly the information you’re looking for.

It’s pretty amazing! Mary Jo walks us through how to find almost anything related to court outcomes on CanLII, and also some valuable pointers on how to read the cases once you find them. If you’ve ever wanted to know — well, anything — about court cases and outcomes from coast to coast, this is 20-odd minutes you won’t regret spending with us.

What’s in a name? Deciphering the secret world of “Styles of Cause”

Chances are you’ve seen or heard the name of a legal case. Lawyers call this the “style of cause.” Once you’ve cracked the code for a style of cause, there’s a lot of information in one short title!

Format: A v B

Styles of cause are formatted in the same basic form:

Name of Plaintiff v Name of Defendant/ Respondent

The plaintiff is the person bringing the case before the court. The defendant/respondent is the person who must defend the charge or respond to the claim. Where there are multiple plaintiffs and/or defendants, the name of the first plaintiff and defendant, respectively, will be used.

Illustration of styles of cause.

What do names mean?

A natural person (an individual human, rather than a private or public organization) is represented in a style of cause by their last name. Therefore, If Bill Smith is suing Bob Jones, the style of cause will be Smith v Jones.

Corporations are also legal persons. In a style of cause a corporation is represented by its official corporate name. Therefore, if General Motors is suing City National Leasing, the style of cause will be General Motors of Canada Ltd v City National Leasing.

Other types of legal persons can also bring and respond to legal cases and will represented by their official names. These types of legal persons include non-governmental organizations, First Nations, Crown Corporations, etc.

“R” stands for Crime (sort of)

In a criminal case, the person bringing the case is the Crown. In a criminal case the name of the “plaintiff” is represented by the letter R—this is short for Regina (Queen) or Rex (King). Therefore, if John Brown is being charged with a criminal offence, the style of cause will be R v Brown.

…but the government is more than “R”!

R is not the only way to represent a government entity in a style of cause. Cases can also be brought by or against a government entity in the form of challenging the constitutionality of law or a decision made by the government entity. For example, if Terri Jean Bedford is challenging the constitutionality of a federal law, she will bring the claim against Canada, as represented by the Attorney General. The style of cause will be Bedford v Canada (Attorney General). If Grassy Narrows First Nation brings a case challenging the decision of the Ontario Ministry of Natural Resources, the style of cause will be Grassy Narrows First Nation v Ontario (Natural Resources).

Don’t say “vee!”

In Canada, the “v” separating the two parties is not pronounced “vee” when speaking. We just say “and”. Americans say “vee”, and you’ve probably heard this on TV, but avoid a rookie mistake in Canada and say “and” when dividing the names of parties to a proceeding!

– Isabelle Crew (3L, Faculty of Law, Queen’s University)

Presumed Innocent: Fundamentals of Canadian Law Podcast 005

We’re joined once again by Queen’s Law professor, and developer of the Law 201/701 Criminal Law module, Lisa Kerr. The topic: presumption of innocence. Why is it the bedrock of our criminal justice system? How does it level the playing field of one person versus all of society? And… is it really as venerable and ancient a principle as we think it is? Lisa joins us via Skype from New York to talk about all of this, and more!

The Brains and Brawn of Criminal Law: Mens Rea and Actus Reus

Robber is thinking of profit from robbery. Word balloon from Freepix.At the most fundamental level, criminal law is based around a single Latin phrase: “Actus non facit reum nisi mens sit rea”, which translates to “an act does not make a person guilty unless the mind is also guilty”. This means that a crime consists of two elements: the commission of a guilty act, known as actus reus, and the presence of a guilty mind, known as mens rea.

For example, section 322 of the Criminal Code defines theft as follows:

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it…

We can see there are both actus reus and mens rea elements of this offence. The actus reus of theft is taking something without colour of right (something that isn’t yours), the mens rea is intending to deprive the owner of the thing taken.

Actus Reus

For actus reus to be made out there must be a voluntary commission of an unlawful act.  All actions are presumed to be voluntary, but the defence can argue that there was no actus reus because the defendant had no voluntary control of his or her actions. This was the case in R v Parks, where the accused presented evidence that he was sleepwalking at the time he killed his mother and father in law. The Supreme Court of Canada upheld Mr. Park’s acquittal on the basis that he was not acting voluntarily.

Additionally, where the offence charged includes the occurrence of specific result, the fact that those consequences occurred is another element of actus reus. For example, section 222(1) of the Criminal Code provides that “A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.” Causing death is therefore a necessary requirement for the actus reus of homicide. In determining causation the question we ask is, whether, but for the actions of the accused, would the result have happened?

Mens Rea

Courts presume that criminal offences require some form of subjective mens rea—intent, knowledge, recklessness, or willful blindness—in relation to all aspects of the actus reus unless Parliament clearly indicates otherwise.

For some offences, Parliament has indicated that mens rea is not required. These are known as strict liability offences. For a strict liability offence it is not necessary for the Crown to prove the existence of mens rea—the act itself is the entire offence. If charged with a strict liability offence, the accused may advance the offence that they took all reasonable steps to avoid the act. An absolutely liability offence is similar, but the accused is not able to advance a defence of this nature.

So when you’re wondering if something is a crime, start with “brains and brawn,” and ask yourself if criminal intent and criminal action were both present. As we’ve seen, there are exceptions, but it’s a reasonable place to start.

– Isabelle Crew (3L, Faculty of Law, Queen’s University)

Thought balloon in illustration courtesy Freepik.

Marijuana Legalization and the Federal-Provincial Relationship: Fundamentals of Canadian Law Podcast 004

We all know that the Canadian federal government is decriminalizing marijuana, but what does that mean? Queen’s Associate Dean Academic, Cherie Metcalf, is here to explain how the federal government and provincial governments are legally linked, and how that intricate relationship is key to understanding how pot decriminalization will happen. Cherie is also the creator of the Constitutional Law module for Law 201/701 in the Queen’s Certificate in Law — to find out more about the only online certificate in law offered in Canada by a law faculty, visit http://takelaw.ca.

Whose law is it anyway? A guide to Canadian criminal law

Almost everyone in Canada has dealt with criminal law at some point – a criminal penalty can include a simple fine like a parking ticket on through more serious punishment for serious crimes. Even if you’ve never committed a single infraction, criminal law is an active force in all our lives.

But where does criminal law come from, and who has the power to say what is criminal? Let’s take a quick look at the fundamental sources of criminal law in Canada, starting with the basic principles and structure of our criminal justice system.

Sources of Canadian Criminal Law

To get to the origins of criminal law in Canada, we have to go all the way back to 1867 and the Constitution Act. This document, issued by the British Crown, determined the exclusive jurisdiction of the Parliament of Canada over the matters of criminal law – that Canada, as a new nation, was responsible for defining and punishing its own crime.

Parliament enacted the Criminal Code in 1892. It codifies criminal offenses in Canada, though much of its content was imported from Britain. The Code is not the only source of criminal law in Canada: it has been expanded on since its creation by other federal statutes like the Canada Evidence Act and the Controlled Drugs and Substances Act.

In 1982, a new Constitution Act was passed, along with the Canadian Charter of Rights and Freedoms. The Charter establishes the fundamental rights of Canadians, including the right to a trial within a reasonable delay, and to be presumed innocent until proven guilty.

All Criminal Law is Federal

But the provinces can still get you in trouble…

Federal and Provincial Law in CanadaUltimately, this means that all crime is federal, in the sense that the Parliament of Canada has exclusive jurisdiction over criminal law, and is the source of the Criminal Code.

But wait! The provinces also have their own powers, and can set regulations to create quasi-criminal offenses, also known as regulatory offences. The provinces also have a number of important powers associated with the administration of criminal law – they hire prosecutors, appoint provincial court judges, and are responsible for the majority of criminal law prosecutions.

Let’s expand on that by going back to the Constitution Act of 1867. Among the many things defined in the Constitution Act are how power is split between the federal and provincial governments.

The section, 92.15, of the Constitution Act specifies that provinces are in charge of “[t]he Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section”.

So what does that mean? It means that the provinces can create the quasi—criminal offences only in relation to the matters within their jurisdiction. One example is Ontario’s Liquor Control Act. It defines, among other things, who can sell alcohol and under what conditions, which is entirely in the province’s jurisdiction as laid out in our Constitution.

Provinces can, in turn, delegate power to municipalities to create and enforce their own bylaws. Things like pet control, parking, garbage dumping, etc. are traditionally municipal, and a different set of regulatory offenses.

…and most criminal cases are tried in provincial courts!

The provinces also participate in criminal matters by upholding the administration of justice within the province including the constitution and organization of provincial courts. The section 92.14  grants provinces jurisdiction over “[t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts”.

This seems complicated!

It is! Criminal law is not for the faint-hearted. But there are basically two things to remember:

One, there are two levels of crime. Crime as defined by the Criminal Code and other statutes, like murder, assault, theft, fraud, property crimes like arson… are all federal-level crimes. Infractions of regulations, like speeding on the highway, not licensing your pet, or serving liquor without a license, are usually provincial or municipal regulatory offenses. Provinces and municipalities can have their own courts and enforcement mechanisms for these.

And second, provinces and municipalities support the federal system by helping enforce the law. That’s why the Ontario Provincial Police or the Winnipeg police force can investigate, arrest, and prosecute people for murder (a federal crime), as well as provincial and municipal infractions. All levels support the investigation and prosecution of federal crime, but only Parliament can decide what is a crime by amending the Criminal Code.

The “Convict Code,” Prison Law and Duress: Fundamentals of Canadian Law 002

Crowd of small symbolic 3d figures, isolatedThis week on Fundamentals of Canadian Law, the “Convict Code,” duress as a defense, and prison discipline — we’re joined by professor Lisa Kerr, a faculty member at Queen’s Law and the creator of the Criminal Law module of Law 201/701: Introduction to Canadian Law for the Queen’s Certificate in Law. We talk about a recent court case and how the “prison code” and the principle of duress as a defense factor into disciplinary decisions in prisons.