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Moral Luck Edition


welcome to Stereo decisiveness the the podcast about the law in Canada and beyond. I am Robert. DNA formerly of chaperone Kramer Fiterman Lemaire in Vancouver Hoover. I am joined today by my to Cali Oliver pulley blank from fully blank law in Vancouver Oliver. How are you doing today so you're just gonNA tease the formerly leave it there yeah and it's funny. I thought that would be an interesting way to it's easier then we'll we'll. We'll we'll get to my my status but first let us introduce also are host with the most from the East Coast Hillary Young Tom Professor at the University of New Brunswick Faculty of Law in Fredericton Hillary. How are you doing on this brisk risk day in January New Brunswick. I'm doing great happy. New Year to the to Indian happy New Year to you too and yeah you mentioned your so. You've got a fire going. You're sitting by a roaring fireplace to keep her from my living room that the fireplace going the cats nearby. It's so it's chilly. It's January New Brunswick. I'm literally wearing shorts right now. And I was sort of the day that was uncalled for yeah. Well I suppose yeah. I I should update my status I so I am now in transition. I have left my position as a council with Shepard Kraemer Fiterman Lemaire in Vancouver and I am returning to public service next week I will be joining the provincial crown of British Columbia Columbia in the Ministry of Attorney General's Constitutional Constitutional and Administrative Law Group which has been a a group that I have had my eye on for some time as some of you oh for many years I was a litigator with Oliver at the federal crown so in a way. This is a return as we all know. Her Majesty is indivisible so you know but I think there is I'm anticipating that things will be slightly different with the BBC crown than they were federally less paramount amount. I would say yes an excellent division of powers joke. You don't bless likelihood of a conservative government yet. I mean technically the there is there is really no conservative party to speak of in. NBC You see but the BBC liberals are sort of functionally equivalent to the federal conservatives. I think many would say and there is a strong likelihood that they may return to power soon as well the I think there's like a by-election the the end ep green in coalition Quincy Yeah. It's very slipping on friends and political straight. Now I think yeah I don't. I don't want to do that but I think there's a by election coming up and I think if if the BBC Liberals Win. I think that would be the end of the government. That's how slim the the margin is so. Maybe I think that maybe maybe so yes so we may be serving. I I may be serving a new a new government in my new capacity but we shall see but I should make clear that anything that I express on this show of course is just my own opinion and not at all of Her Majesty the Queen in Right of Canada or British Columbia and I was actually joking king with a friend recently that I've gone from federal to now provincial and then of course my next move. I'll have to go and join some kind of municipal municipal government and to provide legal advice following which I can then go onto. I think that the the CONDO board or or strategy strata council level. I'm not sure what the sort of smallest level of democratic government that can represent strata council. I sure create your own city. People used to do that all the time. Every city was just started by somebody and nobody really does that. Get up and go anymore. You know people aren't in cities these days and I think that the town I moved there all right. Well anyways on today's show. We're GONNA leave. Dna Town on and talk about three so much has happened since our last episode. We've we've. We've got a new justice minister. We're not gonNA talk about that. Federally there have there was the the massive administrative law trilogy that was heard by the Supreme Court of Canada which will reconsider all of Administrative Law and the standards of review and so forth. We're also not going to talk about but we are going to be. That's true of of course how could I forget. We won an award a prestigious clubby award which I think is short for Canadian law blog blog e we we won and we were tied with two other individuals I don't recall whom but we won an award for I think best legal podcast and that was very very exciting. and it's interesting how a a podcast is it was actually it was an interesting category was legal podcast or va log V log which is I've never heard actually spoken out out loud but that is I believe it's a blog but it's transmitted visually youtube channels. People have right yeah that kind of thing so we were in that category and we are very appreciative and and honored I think I can speak for all of us in that regard and happy that we are we have listeners who are who keep tuning in and we hope to keep on going despite my return to the government and the potential restriction on my freedom of expression that may be eh caused thereby but we shall see so on today's show we will be talking about three stories we will be talking about about the guilty plea by Mr Jessica Rat Singh Siddhu to a large number of charges in relation to who the Humboldt broncos crash and next we will be talking about a very hot off the presses is recent decision by the United Nations a ruling that Canada's Indian Act discriminates against first nations women by the formula through which it grants or denies status and finally we will be talking about a recent decision of the Supreme Court of Canada called Frank v Canada which has to do with the constitutional right to vote and the right of people who are Canadian citizens living abroad to vote in federal elections so with that overview let us dive right in and talk about our first story which is the horrific Humboldt broncos bus crash and the recent guilty plea of Mister Jasper Singh Siddhu to a large number of charges involving dangerous driving so hillary Why don't you bring us up to speed on. you know what the guilty plea involved. And what. Do you think it's implications are yeah. Many of our listeners may have heard this story as you said said at the driver of the truck that collided with the broncos bus this week pleaded guilty to a number of charges of dangerous driving causing the death and causing harm causing injury and normally that wouldn't I think provide a lot to discuss this guilty plea to a criminal offence but I read an op-ed on CBC dot ca which talked about how Oh any one of us could have a moment's inattention while driving that could lead to catastrophe and it really got me thinking about what exactly is this criminal fence. What does it require and reminded me of some sort of jurisprudential things I teach in some of my classes so really only two or three issues it raises. Let's start with the first one which is did he actually commit this crime that he pleaded guilty to and maybe we should let me just stop you. I mean this was all over the news but can you just like briefly. Tell us what happened in this car. Crash sure sure so a this isn't necessarily a hockey team was driving driving on a bus. It had the right of way a driver of a truck was coming in another direction didn't see a stop op sign and proceeded through into the intersection and collided with the bus and a large number of people were killed especially a large number of young athletes so this was international news and obviously really sad and terrible and I remember this was when people were putting hockey sticks on their front porches in memory and solidarity like all across the country right indeed yeah it leads all sorts of other stories about organ donation and about all sorts of other things so yeah. I really really horrible double but the so obviously that led to investigations of what actually happened and we now have a preliminary version of the facts. It's still pretty sketchy. At least as far as I could find but this the driver responsible so the driver of the truck not the driver of the of the the the bus that the hockey players were on didn't stop sign. He proceeded through into an intersection missed the stop sign so he was at fault but he wasn't drunk drunk. As far as we can tell wasn't impaired in any way hadn't been driving for too. Many hours wasn't checking his cell phone he just just as one does at a moment's inattention and Mr Stop sign now to be fair. This was an unusually large stop sign and actually had a a flashing light on it but still it was sort of what we think of as an accident you know Avi no-one suggesting in that certainly not that he did this on purpose but even that were any sort of other circumstances that make this especially blameworthy it was a simple moments in attention so I looked at the the criminal code offence and as you to no criminal laws not Meyer expertise east but we all went to law school so I looked up the actual offense and it's a form of unreasonable dangerous driving and in particular I think the the men's Ray as interesting so that's the the issue here is what every criminal fence requires a bat act on it requires some sort of mental element of Fault Element and here it is that that the the conduct the dangerous driving amounted to a marked departure from the standard of a reasonable person so this just sort of one of those negligence based or carelessness based criminal code offenses but so mark departure this kind of typical criminal code language for for these negligence type offenses and you know if you try to find out what a marked departure from unreasonable conduct upped means. It's Kinda hard to find good definition. They just say it's a a big departure. It's not garden variety carelessness at some a higher degree of carelessness and it's not obvious to me that you have that here yeah me neither I especially since I basically did once the exact same thing in Saskatchewan on a road trip I went right through a red light and t-boned very very unfortunate old man who was coming from the hospital visiting his wife who who had just had surgery and he was okay and we were all okay and but it's it's such an easy mistake to make anyone can do it right so you're saying you ran a stop sign or you say it was it was a stop light and this was in Regina and we this is my wife and I were on across Canada Road trip and the the sort of towards the end of the day so he'd been driving for a few hours but what was a bit unusual. The stoplights in Regina are kind of fairly high and horizontal. I'm used to kind of the up and down vertical stoplights and for whatever reason I just I didn't pick get up and like I didn't recognize it as a light so similar to MR CDU in the Humboldt case. I just went right through the intersection. As though there was is no indication that I ought to stop and I hit someone and yeah that in that sense and I wasn't drunk and I wasn't distracted attracted and yeah and so I think it's fair to say that that kind of thing could happen to almost anybody. No I think it I think the moment's inattention it does happen to everyone and the question here is whether yet whether anything that comes from it and I'll get to that in just a second but I just wondered whether my intuition about this was colored by my sort of thinking about negligence law where the standards are different so I I did a bit more research which you no. I don't know what he's do for this podcast so so you know. I- I dug deep and I read I read the baby case or at least the end to be honest ever head notes but anyway so so so beatty or beatty I guess is two thousand and eight Supreme Court of Canada case on the facts are very similar so you to Pickup Cup truck on that crossed the center line and for no obvious reason and it hit an oncoming car and killed three people the driver survive five. He was charged with the same offense and he didn't know what happened. The people driving behind him said he was driving properly properly right in the moments before any figures he must have fallen asleep or something and the Supreme Court said the that lapse of attention. It did not satisfy the men's ray for this particular fence so I think it's really I mean I understand that Mr Syed who feels terrible on on I expect there was some pressure on him to want to avoid a trial but of course the crowns shouldn't be charging where they don't think the advances dances made out so I don't know I just think I don't know that it's so obvious that couldn't be made out that it's problematic for the crown to charge but I do think there are some interesting ethical issues here around whether you should be pleading guilty to a crime that you may very well not have committed and I also wonder to what extent I mean. Certainly there's a responsibility on the trial judge when that plea is made to interrogate era gate the accused to see if they do in fact that to which they are pleading guilty would in fact as a matter of Law Constitute Institute the the crime in question though yeah absolutely so. I don't know I mean this is not an area in which a lot of expertise it may be that there's something that distinguishes distinguishes empty or that there's a subsequent case to be but it just seemed to me highly questionable so that was the first first thing that came to my mind but then the other thing that I think's really interesting about this is the the this question of moral luck or causal lock all right we all in fact their studies that show it's impossible to drive for more than something like ten minutes without having moments of attention and so it's it's inevitable the difference between you know the vast majority of moments of inattention while driving and the one in in this particular instance obviously the horrific consequences and so there's all sorts of interesting legal philosophy be your. Judy jurisprudence literature around whether what's The relevance of of causation what's The relevance of this sum outcome and a as the legal system should we focus more on things that are within people's control and blameworthiness because of what they chose to do or not to or do we also take into account the consequences I n clearly the answer is that we do take into account consequences punish murder more severely than attempted murder but I still think it's kind of interesting to contemplate why that might might be if it's outside of your control. That's fascinating from a tort law perspective. We're very used to dealing with consequences and you take your victim as you you find it and you try to make them whole and that makes sense in a restitution airy framework where your goal is to fix the damage that you've done but in the criminal context that's is not the goal rehabilitation deterrence et. CETERA and I don't see how those are really very much furthered by having exponentially exponentially different consequences based on based on the consequences of your actions yet so attempted murder versus murder yeah right. They're both they both involve someone trying to kill someone and in one case you got slightly luckier where someone someone got gear yeah. I mean it is a it's a conundrum that I I don't know that there's a you know like I think of think of if in this particular situation if the this individual had not been charged or or had gone through the trial and and had been found not guilty on you know I could imagine there would have been massive outrage from the community and the families of the of the people who were killed and and and and I think ultimately that's really just the the nub of it is that is is there's this there's a public thirst for more severe severe punishment when the consequences happened to be more severe and it probably doesn't hold up under a jurisprudential analysis in terms of philosophy but it's something that probably for the stability of society is necessary so that people don't go out and with pitchforks works in take matters into their own hands. No I think it does hold up in the sense that I think there's pretty widespread agreement that the consequences excellences are relevant to blame worthiness even if it wasn't even if the difference isn't something you control and maybe it's the case that something the thing that's purely accidental. consequences don't matter but that once you've done something blameworthy than somehow. It seems worse if the consequences consequences are worse than if they're not but I dunno anyway this kind of thing I teach in advanced towards and the kind of thing you get in jurisprudence is prudent sent Jay could go on about hours but I just thought it was really nicely raised by this situation and I have I mean obviously incredible amounts of sympathy for the victims of this crash and their families but also you know whenever I whenever these sorts of situations arise I especially feel sympathetic for you know the relatively while meaning people who were very they they did something wrong but they were incredibly unlucky to have had that turnout whereas most of us get away with their moments of inattention. Okay Yeah No. That's that's that's fascinating so who unless there are further comments I will suggest that we move on to our next story which is also a recent one a decision that was released on January fourteenth though the press releases that I'm looking at is dated January seventeenth two thousand nineteen the United Nations Human Human Rights Committee has ruled that Canada continues to discriminate against first nations women and their descendants by denying them the same entitlement to full full status under the Indian Act as first nations men and their descendants so oliver. This was a story that that you wanted to talk about tell us about what what does this mean for. Canada and how does it relate to how our own domestic law treats the the you know the way in which status is achieved under the Indian. Act Yeah thanks and I mean this is a fascinating decision assimilation that I just learned about it today so forgive me any any mistakes or any lack of nuance in the decision that I that I may ultimately say today but I have had a look at this issue recently because what what's raised here where is the question of the effect the legacy of discrimination against women under the the Indian Act with respect to status and you know the Indian act is the history than inactive is horrible to recount onto the discrimination that occurred within the Indian. ACT IS INEVITABLY WORSE THAN I remembered it. Every time I look into it the degree of discrimination discrimination and that was born by all the people who are touched by the Indian but most acutely certainly by aboriginal women without a question Russian the act was designed to assimilate candidates indigenous populations and it was also designed to impose a paternal paternalistic society upon aboriginal groups whether they had anything like that or not and the consequences ended up being especially egregious for first nations women and the rules were just different and so the for instance and what comes up in this case if you were a man who had status under the Indian Act I e you're entitled to the benefits that were provided to people with status on us. If you married a non status women you kept your status and indeed you're able to pass your status onto your children and to your non-status his wife conversely. If you were status women and you married non-status man you lost your status and you're not able to pass your status onto your children children so this case raises a similar issue as was actually before the Supreme Court of Canada very are you recently in a case called Andrews and Matteson which is in nineteen eighty-five this idea of status being lost when a a woman marries non-status man was abolished but what do you do with the fact that there has been discrimination that has permeated aided the administration of this act for it since its inception which right after candidates confederation a Hundred Years of discrimination and so what do you do with all the people who would have had status but for the fact that they or their mother or their grandmother mother lost the status under blatantly discriminatory rules and this question's been litigated in Canadian courts quite a bit the Andrews and Matt's in case was a recent Supreme Court of Canada case from last year where this very question was put squarely before the court unfortunately though they didn't answer the question because it came from a human rights tribunal a complaint and they they said well ultimately this is is really a challenge to legislation ought to have been a charter challenge not a human rights complaint so they dismissed the case on you know it really amounts to technicality McCallum not getting into the merits of the dispute at any event so this case this United Nations decision came out from the Human Rights Committee and it involves Sharon McIvor who's a a lawyer and a an women would first nations ancestry and her son Jacob Grizz Mer and the Mikhail Mr Grizz Moore had brought what a charter challenge previously to this system and the effects that had had on them personally and had gone as far as the BBC Court of Appeals Appeal Supreme Court of Canada there had been some findings that had been made by the Court of Appeal that there was discrimination. Shen but it didn't address the problem that was specifically faced by Miss McIvor and her son and so they went to the United Nations nations to seek a remedy from the human rights committee and the briefly describe you know how the discrimination issue came to be and it stems from the fact that Miss McIvor was eligible for status pre nineteen eighty five but she wasn't aware of it didn't apply for it and in any event she married a non status person so she would've would've lost her status so regardless of how would come to be in ninety five when the laws change. She doesn't have status her son. Therefore therefore didn't get status at birth either heeded non-status Mother non-status father didn't get status they fix the law to some degree in after nineteen eighty five and they put in a rule which says if you lost your status because of this marrying a non status person as a woman very discriminatory rule then you could get status and this status would allow you to pass on a kind of status six sub to status to your children but but they couldn't pass that six sub to status onto their children and so doing that well the point is that there's a there's different levels have status and there's a concern about dilution. Russian I suppose of the degree of first nations ancestry that people can have and claim status and so if it starts to be your one thirty seconds or something like Doc the Elizabeth Warren effect that's yeah and there's there is some concern by some first nations groups that look if the becomes too widespread that people have status then there's going to be less tangible benefits for those who have most acutely suffered the effects of discrimination through the years so there is some rupe some logic behind having different kinds of status to account for different degrees of. I've ancestry that said in this case had miss McIvor been Ariss mcevers mother sorry father had been the person with status Mikhail would have status and her son would have status and he would be able to pass that status onto his children they would all follow the ordinary six one status but because the mother loss status and miss McIvor law status for ability and seek status because of her marrying marrying a non first nations are sorry non status man then her son only was able to get this six to your status so the degree of ancestry has nothing to do with whether or not he's able to pass the status onto his children. It's not how much much ancestry does he have. It simply was your ancestor male or female. That's the deciding factor in his case. Which is why this is a sex discrimination issue you know most fundamentally and so that's how the United Nations view that they looked at it through the intersection of sections twenty six and twenty seven of the International Covenant on Civil and Political Rights which are gender and banned discrimination based on ethnic origin and they found indeed. This is gender discrimination on this discrimination. They continue continues to be felt today. It's not just historical discrimination but the effects are in the here and now and so the Canada had proposed legislation and apparently it was adopted and ready to come into force at some point that would address this issue but the the committee said well look. They're still a problem right now. These people are before us. They are being discriminated against and we're GONNA find that they have been discriminated. Take against and we're GONNA stay that Canada. You have one hundred eighty days to tell us how you've addressed this problem and that's the remedy comedy that they ultimately were able to offer and so you know to me it's it's a fascinating case. I had done some work in tangentially in this area yeah and I I'd never thought about going to the United Nations to seek a relief for your client. You think human rights or you think charter so I I don't know many cases that are similar this I just I don't know much about United Nations law so I forgive me if there is jurist body jurisprudence there but to me this was is a fascinating and this did do it presentation Andrews and Matteson recently and talked about possible alternatives impossible things could be done and this never crossed my mind that you could go to the UN so you know in one sense quite an interesting gloss on our charter rights Cintas dateable. There's this other remedy that you can go seek. this other forum that you can have a have goin it. The complaint was filed in twenty ten in the decision came out last week so I don't know if that's normal or if this was exceptional with justice with swift justice but I found this to be fascinating and and sad in a sense that the UN does this not swift justice and it's a problem that has been known for a long time and a problem that's Gotten Supreme Court of Canada and that thinking people I have no one was a problem for a very long time and yet still not addressed and it does just remind you of while there has certainly been progress progress with respect to removing the overt discrimination within the laws leading side even the substantive discrimination that occurs but the just to get rid of the overt stuff his vendors and movement but it still still permeates the legislation and you know even thirty five years post charter. They're still these these core issues that are just not being dealt with very quickly and Miss McIvor and her son had to go to to the UN to get a remedy is amazing statement of where the Canadian law is. I'm just confused used about the status of the law I think it's Bill S. three. I'm looking at the stat that's the the the government bill an act to amend the Indian act in response to the Superior Court of Quebec decision in Denno again contact Canada and I think that that this is the bill at issue that is mentioned in the decision in the press release by about the UN decision and I and it it's the status of it is it's gone. It's gotten three readings in both houses and has received royal assent as of December twelve 2017 but it's still somehow not enforce and I guess I said that's the part. That's very strange to me. That's very I didn't understand from judgment from from the UN what happened. They're not will be worth worth a look. I mean I know that there's concern that changing. These rules can lead to huge huge increases in eligibility so there there may be reasons to administer fairly slowly and bring it into forest to make sure you have the resources is in place etcetera etcetera but yet strange the parliamentary budget office estimates that there are more than two hundred seventy thousand women and their descendants who would be newly entitled to Indian Status if section six one a of INDIANAP- status were granted to them on the same footing as a AH quote Indian men and their descendants so that's a lot of people within the you know it would make a big difference numerically Markley but that's not a really great reason to you know to pass a law and then to hold it in reserve. I guess we just don't know what the answer is but I suppose you know something that is useful in an appeal to an international body like the UN is is precisely just this. It's it's to to force political pressure and to raise the issue in the news in make and make officials have to answer these kinds of questions us to precisely. Why has this law not been brought into force yeah and Oliver do you sense of whether this is the the change is widely supported by digits people or I mean you said something before about your concerns about dilution that you know the to the extent and we're having a hard time figuring out what the best response to a clearly discriminatory law is may be part of the reason why it's taking so long to sort this out now that that's much of an excuse but it's not clear to me what the Best Solution Yeah No. I don't have a sense and says to at all as to the and I'm sure that it's you know varies from person to person group to group of no sense whatsoever of the general consensus. If there is one well I mean the the only other thing I'll add is just that it drives me nuts when the supreme court grants leave on a case like data and then tosses it on some technicality the Andrews Madsen Yeah technicality was sort of the issue throughout but still I mean to not get to the merits of that is to have the UN for you a year later. Is something else grant. Leave like if that's the issue okay then yeah I mean I think they might grant leave on the question of does the Human Rights Tribunal have the jurisdiction to basically strike down laws. If that's that's the only relief you're looking for but still I mean get to the merits. I think is the what everybody wishes that happened. There all all right well. Perhaps we shall get to the merits as well and transition. That's a week week segue rob but there it is I do my best. We'll get to the merits of our our third and final story unless either of you want to chime in with any concluding thoughts hearing none. I shall talk. I'll I'll tell you a little bit about the third story that I wanted us to to chat about which is the recent decision of the Supreme Court of Canada was rendered January eleventh of two thousand nineteen and it's the decision of frank versus versus Canada. I think it's Jillian frank and Jamie Guang or the where the two appellants and it was a five two split slit decision by the Supreme Court of Canada concerning election law and the the right to vote under section three of the charter the two dissenting sending judges. I should say the majority reasons were written by Chief Justice Wagner and the there was a concurring reasons is by justice row and dissenting reasons by of course Madam Justice coattail and Justice Brown I say of course because it seems like a matter of course now that Madam Justice Kobe descents and often. It seems certainly when I've been looking in in the Administrative Law Realm Madam Madam Justice cody is a prolific has been a prolific dissenter and often she is joined by Justice Brown as well justice row so this particular pick your case has to do with a number of provisions in the Canada Elections Act that set out who can vote and which citizens can vote and the combination of these these particular provision would had the effect of making it so that any Canadian citizen who has resided abroad for five years or more does not have the right to vote in federal election unless and until they resume living in Canada and a number of nonresident Canadian citizens challenged the law and were ultimately successful before the Supreme Court of Canada and the the law was struck down as is being an unjustifiable violation of section three of the Charter of rights and freedoms which says that every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein so it's the right to vote but it's also the right to run in those elections elections and as our as our intrepid listeners know and anyone who has gone to law school in Canada should definitely remember you. It's a constitutional challenge under the charter is always a two step process and so in order for a law to be found unconstitutional. I there has to be what we call a primer facial violation of the right so in this case would be a violation of the right under section three of the charter but then a law might still be upheld as is being reasonable or justifiable in a free and democratic society or a limitation on a right might be upheld as a reasonable and justifiable under section one of the Charter and so in this case the Supreme Court found the majority found that there was a violation of section three. I think everybody agreed that. There was a violation of section three of the charter. The fact that non residents who've been abroad for five years or more who've lived abroad for five years or more cannot not vote. Everyone agreed that that was a primer facial violation of section three and really the question was is it justifiable under section one and and ultimately the majority found that it was not and it came down to if I can sort of summarize resident in broad strokes is the idea that the supposed reason why the the legislation does this it excludes non residents from voting is to ensure electoral fairness but the there is no oh evidence presented that excluding people who lived abroad for more than five years actually achieved this particular benefit there was no actual actual evidence presented it was really presented as a matter of matter of logic and and and ultimately it the the court found that the majority found that the violation of a person's right to vote was so severe that in in the face of insufficient evidence beyond just kind of simple logic you know you couldn't uphold a violation of the right to vote as being sort of reasonable annable and justifiable under the circumstances and the descent said that no there is there is sufficient. It's one of the issues in charter litigation is often the fact that you know what kind of evidence does the government have to bring t to justify the breach of particular charter right and many different breaches are not susceptible to proof by way of evidence because the the benefits that they are supposedly creating are are are sort of almost like often philosophical or just not provable and in some cases the Supreme Court and other courts have held violations as being justifiable even though there isn't really strong evidence that that it actually achieved something important and despite the fact that it's clearly violating a right and so it almost comes down to the sort of the standard of proof and the majority was was willing to sit was not willing to accept the that the standard of proof was enough for the government to say look you have people who lar- outside of the country they are not directly affected by most of the laws that will be passed by the parliament that they are voting for in so it's not fair in a very simple way to others who are affected by that law those laws to allow these people even if they're Canadian citizens to vote on until they come back and live in Canada dissent really focused on the fact that our actual actual electoral system is one that is based on writings geographical areas where voters pick the voters who the candidate who gets the most votes in a specific geographical area is is the one that is sent to parliament to represent the people in that specific area and it is not illogical or unreasonable they they were the the descent would say to say that people who aren't actually physically present in that geographical area for some extended period of time ought not ought to be permitted to vote and to choose the person who will represent that area and the interesting thing about that in a way is is that our system of voting which is this first-past-the-post-system based on writings is not in our constitution anywhere and it could easily reasonably be changed and we could have a system for example of proportional pure proportional representation where people just just vote for a party and you know across the whole country and there aren't writings geographical writings and if we had that voting system. I wonder would that change the constitutionality of an exclusion of people on the basis of their you know place place of residence when I if our voting system no longer tied geographical area to the election you know that that seems strange to me that the constitutionality canal of the this particular law would turn on the fact of the particular kind of electoral system that we have which itself is is not a constitutional constitutionally mandated system so that was one thought. I had a and let me just stop and ask you guys. Do you think it just at a pure like intuitive level. Does it seem fair that a person who a Canadian citizen who lives abroad for five years or more should be he denied the right to vote in a in a federal election so as a matter policy. I think sure why not but of course that's not the question before the court on my solid lefty credentials notwithstanding. I tend to be deferential to legislatures on matters like this and based on what you've said. I'll admit to not having read frank not even had not but I agree with you that it's problematic matic to base the decision on our assistant writings when the constitution talks about citizenship and doesn't require that geographically base ace so there's my I agree. I mean my Wifi gets. She's an American citizen lived there for a good two years or so when she was four and five and just today we again like a King County election ballots he gets to vote in Washington state elections and it would kind of laugh about it and she says well. I'm not going to vote on local taxes and local spending things like that but you know a vote on president and things like that that frankly do affect her despite the fact has lived there anymore so I do think that representation makes a lot of sense percents for people despite the fact that they may live abroad because if you're a citizen country you have certain ties and certain responsibilities and certainly an interest so I edano got level of any problem with it yeah and so the majority said that nonresident citizens do live with the consequences quences of Canadian laws. They're they're subject to some Canadian legislation during their visits home well to all Canadian legislation when they're when they come home physically for a visit Canadian laws affect the resident families of nonresident Canadians so and some Canadian laws have extra territorial application though that's those are very few on those things are true of non-canadians citizens as well right like anyone else to Canada's subject to Canadian. The law is in any way he's not a citizen who happens to have family and candidates subject those arguments just strike me as not compelling at all yet no it's it's a good the point and you know the the other point that the majority made would be similarly subject to criticism on that basis which is that many nonresident citizens maintain deep and abiding connections to Canada through family online media and visits home though they do also contribute taxes and collect some social benefits as well so that's the part that last bit about contributing taxes. That's that tends to be something that I think for the most part would not apply to most non-citizens non-citizens though I confess not to be particularly versed in the tax treatment of Canadians living abroad like the they if they're actually subject to income tax and so forth but one of the criticisms I heard if that line of reasoning is of course a lot of Canadian citizens who don't pay tax. What's what's The relevance. It's a good point. It's not like you lose your your right to vote as a citizen living in Saskatoon. If if you don't pay taxes for whatever reason yeah I think be problematic to suggest that by virtue of being taxpayer you more entitlement to vote L. I mean I can understand why some people would wanNA make that argument but I think it's highly problem yeah. I agree with you. Another interesting thing that came up as a result of this decision was and there was a bit of discussion on twitter by a number of people there was someone I think from the David Asper Centre and others who were very very enthusiastic enthusiastically supporting this decision by the Supreme Court of Canada and frank but also seeing it as a potential springboard had to bring another constitutional challenge along the same lines under section three of the Charter to the limitation on people under the age of eighteen being allowed to vote so perhaps I don't know how low they want to go but maybe sixteen because there are some some Western democracies that now have reduced the voting age to seventeen or sixteen and I he's thought that to be a bit of a stretch regardless of of whether or not you think the the question of extraterritorial or non-resident voting the analysis of the Supreme Court of Canada fundamentally boil down to there's no evidence to justify not letting people who live abroad vote in terms of achieving some kind of electoral valid purpose. Sorry legislative valid purpose but if you talk about age I think there is plenty of evidence to justify not letting people under the age of eighteen vote mainly from the area of neuroscience. It's quite clear that you know those parts of the brain the prefrontal frontal cortex and so forth that involve impulse control in higher decision making and so forth are are not fully developed actually until oh well into a person's twenties and so restricting it to people under the age of over the age of eighteen is at least. I justified that evidence in my view and I noticed when I I thought that was my hot. Take and there were a lot of contrary opinions that were launched at me from across the twitter sphere. One of one of those was none other than Mr Paulie blank. So you sort of took issue with this line of thinking what what's your view on that yeah no one I mean I don't think we have a prefrontal CORTEX test this if you can vote or not and as you say it should be much higher if that's going to be the case and should somebody with an impaired prefrontal cortex lose their right to the vote you know. I don't think anybody would say that's the case. So if we're going to have an arbitrary number anyways why is eighteen the arbitrary number that we chose why not make it tied with other responsibilities within society we talked about driving and the consequences of bad driving that we talked of hope with the first topic today are much more serious than the consequences of bad voting. I would say lack back of developing in your prefrontal. CORTEX is more relevant to the risk. You pose in driving than to the risk posed voting. That's an argument. That's an argument to raise the driving having age not to let it is because I mean I think there's other reasons for a young driving age for one foot skills. You learn as a young person. You're far better at as an older a person so if you learn to drive in your late twenties or early thirties. I think there's very good science in this that you are not going to be as good of a driver. Somebody learns in there as a teenager sure so. I think there's good reason to keep driving age young and I think also that you know when I was a teenager. When I was sixteen I could vote. I could make a decision and I think that I had a valuable input into the electoral system. I had I had needs an eye head. concerns that were not being addressed by the elected officials and I think that schools high schools would be a wonderful place to you could teach people about about the the candidates the issues the parties and you could get people in the habit of voting and everybody could become registered at high school. I bet you lower the age sixteen sixteen having a robust civics a component alongside voting would increase voter participation then as people got older and have higher voting turnout for younger people which I think would be hugely effective. certainly the youth vote in the United United States would have not voted for Donald trump them. That's the youthful was overwhelmingly against Donald Trump so I think that there's there's no oh nothing you could point to that would convince me that a sixteen year old is flat are incapable of voting for rationally and I think that getting people in good habits of voting and you could have a more informed vote. If you had your class you know spent unspent as a unit on on learning about voting would be would be great. I don't see any downside to it. I don't disagree and I would be in favor of of You know a legislative decision to change the voting age but I think we need to keep separate. The the question of whether it's a good idea to do so whether it's unconstitutional not to do so right and so little were saying is relevant to that question in the sense that if there's no good reason not what you do with that makes it harder to justify under section one but you know in the end some arbitrary cutoff is necessary and what. I see that Hillary for sure that does ring true to me but I I would support lowering the voting age for sure yeah and so vote for it. You know he's there you go but I mean bringing it back to. The constitutional question you know is does the fact that there is ample evidence to establish that regardless of individual cases as a as a collective people under the age of eighteen you know are are not fully are not yet fully developed in terms of their neurological capacities does does that not provide a sufficient agent evidentiary base to allow a government even if it's bad policy right like even if all of those good things that you mentioned. Oliver even if all those there's good things would not happen if the if the voting age was stayed at eighteen and it made it bad policy doesn't doesn't the fact that there is all kinds of evidence showing that that generally speaking teenagers are you know make bad bad decisions at a tremendously high rate as a result specifically of their neural development neurological development which is normal doesn't that provide the government with enough cover to survive a charter challenge defense are deferential accord is as a judge you get that's for sure and I think there are counterarguments pretty good which that's clearly not the basis upon which we have currently set the voting age so it's sort of you treat you didn't and set the voting age based on neurological concerns. If you had you wouldn't have done at eighteen you had done at a higher rate. Limit presumably is based on it. Is it neurology. I don't think so I may not neurology but it's about decision capacity maturity well but those are different things right and if you want to say it's there's there's a a maturity gap. I think you need evidence like you would need to show that a sixteen year. Old is qualitatively worse not than in a forty year old but then in eighteen year old right. I I mean I don't think that you couldn't justify it but I think that you could justify justify the eyes of some judges and probably not in the other judges but it's going to depend on the evidence and I don't think that simply pointing to their neurological you no developments that are not yet complete with sixteen-year-olds is going to cut it and I I kind of like your your response which had to do with well. What about you know. Wouldn't this line of reasoning similarly permit the government to make a maximum voting age like over the age of ninety. You're probably demented or or or whatever age isn't well. I mean this is the line of reasoning being. I'm not saying I subscribe to this view noted Ages Robertson. I know but your point was was there. were similar evidence. I think that as a group centenarians let's cut it off at one hundred centenarians are have diminished neurological neurological capacity which is part of the aging process that that is a real thing would that would that entitle the government to say you may vote wrote between the ages of eighteen hundred you know and I think most people would find that to be odious and therefore if so so you know why why is why is the reverse okay. Is that was that. was that the right sort of thinking just going to say I I mean I guess the difference is that it's absurd to imagine a one year old voting or two year old voting so how maybe you don't need to cut off just for practical reasons but it just seems like at one end of the spectrum it makes more sense to have an arbitrary cutoff than at the end of the spectrum. I guess the other point I'd make is just when you start to investigate people's ability to vote based on their rife right. That's up in ten chills slippery slope that goes well beyond agent Jin into things like education do you wherever you get your news from and j you know these sorts of questions that jazz that make this sort of argument to you too. You know it's so interesting voting reforms these deep unintended consequences like I am. I was listening to a podcast recently and they were talking about going from the you know the public ballot of raising your hand in a group in saying yes I vote to the secret ballot and how that was seen as electoral reform. You're right. You're no longer pressured. You can vote for who you want to but I never thought ended up but that's also a defacto literacy test a secret ballot right like you have to be able to read the secret ballot so although in countries like that have a very high illiteracy rate I think like in Afghanistan the US pictures to represent the different parties and they get your fingers dipped in some indelible ink and you have to touch the the image of the party that you want to support so there are ways around it yeah well. That's good yeah. That's troubleshooting but I think I'm just the that problem right away. Think I'll secret ballot there. You go solve the problem of being pressured in the group but it's interesting they unintended consequences of of voting voting changes that can happen yeah just a quick thought on the Legitimacy Hillary your your point about you know don't like the judges doing in this. I think is a very good one but the only counterargument that jumps to mind is that if legislatures change range voting requirements it's so easy to see it through the prism of the majority doing something to strengthen their majority authorities status right and you see that throughout American issues where the you know. Republican groups try to make it as hard yeah the yeah exactly Ackley a not just gerrymandering but also voter. Id Laws et Cetera et cetera other things that Republicans try to make it more difficult to vote. Democrats are making more easy to vote because not not really because they have a principal dance either way. I don't think maybe too cynical but I think more because the Republicans see their voters are very very high propensity to turn out regular dependable voters. Democratic voters a little more hit or miss so you try to get as many people outdoorsy can if you're Democrat vice versa Republican and so generally. There's a concern that you know if you were to a legislatively changed the voting system. You're likely doing it to help yourself and so with the provincial with proportional representation referendum I supported forcing representation I tend to skew quite left with my choice of political liberal parties that I support and I sent out a tweet saying you know hey I'm looking to support proportional representation and which one is going to help the left parties get elected the most and some people people gave very legitimate answers like this one. This probably helpful left. He's the most one person said Oh. There's no differences. There's no there's no partisanship in this question. It's just a a question of fundamental fairness and I was like that's that's not true. You know I thought about what's going to help people. I like get elected and I think most people kind of do and so there's roundabout way to get where I was going is that it's always a little bit suspect when a legislature changes to voting system especially if that that would tend to support. They're getting elected again. Whereas judges have this chance to say no no no. This is not of partisanship at all. This is what would be more fair. This is a affair and rational way to set this voting age. Eighteen is arbitrary the only justifiable thing is to look at these factors and these factors would say sixteen or twenty anyone or whatever it is when we thoughts on that yeah and to be clear. I'm not anti charter or you know saying I would never support the traditional review of this sort of question I just to me. This isn't an obvious case where clearly and constitution but that that's a that's a really good point all I. I hadn't thought of it that in that way and it really does kind of it makes sense to me how because of that kind of conflict of interest on the part of legislators perhaps the those with the most legitimacy when it comes to ruling about the election rules are the judges and the charter gives them an Avenue Avenue to do that and on that point the writing system in Canada is done by judges right. I talked to judge hall WHO'S A B C Court of Appeal Judge for many years and and he was involved in redrawing the writings in British Columbia. He took it incredibly seriously he drove to every single writing and British Columbia said over the this summer he drove around the entire. Province got to know got a feel of what the people were like what their interests were because there is you want people to have who have similar interests to be able to group together to get a representative who represents the group most effectively and that nonpartisan riding drawing up process you know we're seeing the value of it when we compare it to the gerrymandering down south and it's you know it's a it's a huge. I think feature feature of Canadian democracy. That's really helpful and avoiding some of the extreme partisanship that we've seen so. I think that there is a lot of space for judges in this area. Perhaps yeah that's a good takeaway and on that note I will suggest that we move on to our regularly scheduled segment obiter dicta victor in which we each to make a non-binding recommendation that may or may not be legal in nature in a so my obiter for this week is excitement at tomorrow or really nine o'clock. PM Tonight which is when new records are are released and in this new age of streaming. I don't know if you know this but at nine o'clock Pacific time all the next day's new releases and new releases come on Fridays Easterby to using outs Fridays. They all start streaming so if you have your spotify or apple music whatever it may be you you can look at all these new listen to all this new records that you know just came out that second and it's it's a very exciting thing this Thursday nights you get to you know if there's a record you've been looking forward to finally finally is available but I'm especially excited for tomorrow because records don't really get released between around on December tenth and Second Third Week of January and I think it's partially because of year end best of lists in that type of thing you want to get your record on those lists. You don't WanNa be fallen that Netherworld of December where everyone's already written their list for two thousand eighteen and your arguments nineteen lists if you come on on December either so there's that impetus and I think there's also just things generally slowing down but tomorrow is the first real new release day in in about a month and it's a bit of a doozy the new deer hunters coming out the new Sharon van Etten now coming out so that's what I'm excited about out and if you have a a a streaming service and you're kind of don't didn't know about this keen to have a look at the new releases I would recommend the website metacritic dot com which takes reviews from all across various publications and combines them to give you kind of a sense of what the most well reviewed records coming out and if you go new albums by release date it will tell you everything that's coming out tomorrow and then you can have a look and see if anything strikes XC fancy That's a good one awesome. Okay Hillary. What is your obiter for this week. Yeah thanks for that. All of our had no idea so I learn learn something new so many of you probably saw a a a little throwaway story on aw on your social media twitter whatever today where this canoe and Kayak outfit somewhere believe I believe Kentucky was had it has a giant billboard advertising its services and who is depicted in that billboard while is none other than Dan Justin Trudeau's Sophie Gregoire Trudeau and his two eldest children so basically these guys just took a picture off the Internet made it a giant billboard ad for their key Kayak business and had no idea that it was a giant billboard of the Canadian Prime Minister and so people were kind of getting a chocolate abyss and the prime minister tweeted what I thought was absolutely the perfect response which was actually this is a picture of us in the Yukon which is a gorgeous part of our country so he managed to get a little plug in there for the Yukon while sort of having a bit of a laugh laughing all this but I thought since Za law podcast in addition to just kind of having a chuckle the you know every once in a while these stories pop up where someone steals picture off the Internet with them not realizing that it's someone famous a much less funny example. I remember from a few years ago when someone when used a picture of retail park that's the Nova Scotia teen who committed suicide after having been cyber bullied was sexually assaulted sit in then subsequently cyber bully anyway if someone found her picture on the genetic used it. I think it was in an ad or something anyway this one much less Louis problematic and I thought I'd take a minute to to answer the question. If anyone is out there saying can they do that. The answer is no they can't ah but the question is what the what's the legal wrong and probably the most obvious one is what's called appropriation a personality which relates choose to commercial use of a person's likeness but it might also be some sort of invasion of privacy probably on this case but in some cases it could be defamation if you're associated with the product that is perhaps not that flattering to be associated with so anyway there you go. You can't just go around taking people's pictures off the Internet and using them to advertise you that is true. I don't think JT'S GONNA sue. I think you know I know I think that was a clever one in this day and age so I'll I'll move onto the my obiter bidder I think I'll just go with a quick light. One which is I saw the story that on Reuters that Nike has come up with a new APP controlled self lacing basketball shoe and yet and then. I don't really generally considered myself to be a luddite. you know. I'm not anti technology in fact. I'm very much pro technology it. You know the whole time we were talking about the the Humboldt Broncos case at all I was thinking about was how I can't wait until you know self driving cars become the norm the typical people die and that is a good thing and in any event so I'm generally pro pro new technology within certain certain limits but the basketball shoe. I feel does is not really improved by I'm not sure which part of it bugs me more. More is the self lacing part because you know you could just tie your shoes for God's sakes. This is not a this is not in need of technological additional advancement. Just tell your shoes. Are we especially when talking about an athletic anaphylactic device. You're you're there to exercise is to exert effort and yet you're trying to save the effort required to lace your own shoes seems in Congress to me so that part kind of bugs me a little bit but perhaps I think the the part that bugs me more is the APP controlled part. you know the the the way in which you can you can use an APP to control your shoes. WHO's shoes just get them. Get the machine to do them up for you and then like ten minutes later. You're like Oh that could be a little tighter that kind of thing yeah. It seems like you can adjust with your phone. The tightness of your APP controlled shoe that that self laces saying all this as much as I'm as I'm is. I'm sort of being you know a a an old the old guy in the balcony making fun of it I I am. I'm kind of curious. I would definitely try these on if some offer them to me so as I'm giving a lukewarm condemnation of the of Nike's new APP controlled self lacing basketball shoot so while I while I condemn it as being kind of on its face stupid. I am secretly a little bit intrigued. There's there's a Netflix show show about the guy who designs Nike shoes part of their design. I've seen go. You've seen it right and you see so the inspiration right was the back of the future shoes right. I think Yup but he wasn't really able to kind of didn't work in the end isn't that right yet didn't work but they they've been. Nike has was Aziz. Tinker is tinkering away for for years now and they finally cracked the code. It seems past the day that Michael Michael J. Fox goes to. He goes to twenty sixteen or something so we're already behind schedule. That's right Louie as so what is modern civilization is complete prison is problems such as it is effectively solved by velcro doc. I think this is yet another sign of the coming apocalypse when your stories like scientists thank thank God going to be dead and fifty years I'll be I'll awfully. It's dark all right on that note. I will suggest that we bring this exit. Show to a close and I I will think Oliver Bully Blank and Hillary Young for joining me as always on this show and all of you listeners for for tuning in I will ask you as I always do. Please rate and review the show where wherever you get your podcasts that really helps other people a to discover it and also we enjoy getting reviews particularly bad ones. I I enjoy those personally. I enjoy. I don't know I'm kind of masochistic in that way I enjoy that kind of criticism so please rate and review and we thank you and and we will talk again soon uh-huh and.

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