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Dalhousie Law Journal

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Category: prison law

DLJ Podcast – Ep 23 – Adelina Iftene – Prison Law and the COVID-19 Pandemic

Join Zainab and Adelina Iftene, Assistant Professor of Law and Associate Director of the Health Law Institute, as they explore her research into prison law and the COVID-19 Pandemic. This interview follows topics from Professor Iftene’s article in the Dalhousie Law Journal title “COVID-19, Human Rights and Public Health in Prisons: A Case Study of Nova Scotia’s Experience During the First Wave of the Pandemic”.

Adelina’s past, current and upcoming major research projects investigate issues surrounding aging in Canadian penitentiaries; the regulation of health care provision in prisons; the regulation of end of life and medical assistance in dying in prisons; prison release mechanisms, in particular compassionate release; access to justice behind bars; and sentencing of older and sick individuals.

Resources:
DLJ Article: digitalcommons.schulichlaw.dal.ca/dlj/vol44/iss2/9/
Professor Iftene’s Twitter: twitter.com/adelina_iftene
Dalhousie Profile: www.dal.ca/faculty/law/faculty-staff/our-faculty/adelina-iftene.html

DLJ Podcast – Ep 22 – Suzie Dunn – Gender-based Violence Online

Join Lauren and Suzie Dunn, Assistant Professor in Law & Technology, as they explore her research with The Centre for International Governance Innovation’s “Supporting a Safe Internet” project.

Professor Dunn’s research focuses on gender-based violence that occurs online.

Resources:
The Centre for International Governance Innovation’s “Supporting Safer Internet Project”: www.cigionline.org/activities/supporting-safer-internet/
Professor Dunn’s Website: www.suziedunn.com
Dalhousie Profile: www.dal.ca/faculty/law/faculty-staff/our-faculty/suzie-dunn-.html

 

Anderson Mini-Symposium: Nova Scotia Court of Appeal Issues Guidance on the Sentencing of African Nova Scotians: Three Observations about R. v. Anderson 2021 NSCA 62

This blog is part of a two part series from Schulich professors exploring the recent Nova Scotia Court of Appeal Case R v Anderson, 2021 NSCA 62. The second post will appear next week by Professor Maria Dugas.

Nova Scotia Court of Appeal Issues Guidance on the Sentencing of African Nova Scotians: Three Observations about R v Anderson 2021 NSCA 62

By: Professor Andrew Luesley

This appeal concerned the conditional sentence for non-violent, non-drug or gang related, weapons offences stemming from a random motor vehicle checkpoint stop and search that found Raykeem Anderson, an African Nova Scotian (“ANS”), to be in possession of a loaded .22 calibre revolver for self-defence purposes. Originally appealing the conditional sentence and seeking a period of incarceration of two to three years, the Crown ultimately accepted the conditional sentence but sought guidance from the court on “applying the principles of sentencing to offenders … who are of African descent.”[1] For its part, the NSCA viewed the case as an “opportunity to take up the challenge set by the Supreme Court of Canada in R v Friesen for appellate courts to ‘set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders…’”.[2]  Here are three of my observations of the decision as a newcomer to Halifax[3], and as an African-Canadian[4] so to speak.

1. Guidelines for Sentencing African Nova Scotians

The Nova Scotia Court of Appeal has laid out guidelines for the sentencing of African Nova Scotians, including the need for Crown prosecutors and sentencing judges to consider the impact of race and systemic racism on the moral culpability of the accused. This information does not need to be in the form of an Impact of Race and Culture Assessment (“IRCA”)[5], but it should be asked and granted for in the sentencing of African Nova Scotians. The decision states that it is an error of law for judges to not consider the impact of race and systemic racism on the circumstances of the offence or on the accused with or without the benefit of an IRCA,[6] and that they must do so expressly, not only identifying the systemic racism the ANS accused has faced, but also analyzing how they may have affected that accused’s moral culpability in committing the offence. Otherwise, they risk having their decision reviewed by an appellate court on the basis of an error in law.[7]  Prosecutors should also consider these impacts both in their sentencing recommendations and in their exercise of prosecutorial discretion.[8] The judge must not require that ANS offenders present evidence of systemic anti-Black racism against African Nova Scotians. This information will likely be relevant to deciding whether a conditional sentence is appropriate (i.e. that a sentence of incarceration of two years less a day is in the range of proportional sentences). This decision also instructs lawyers and judges that there may (and in fact should) be cases where a marked departure from the historical sentencing range will be appropriate because historical precedents were set without the benefit of IRCAs or consideration of the impact of systemic racism on the circumstances of the accused or the offence.[9]

2. Systemic Racism Against African Nova Scotians

Justice Derrickelaborates on the systemic racism experienced by African Nova Scotians arriving here up to 400 years ago. This systemic racism has included: legalized slavery, an inability to own property, and over-representation in the penitentiary system. Arbitrary searches, such as the one perpetrated against Raykeem in this case, racial profiling, and other aspects of over policing will obviously lead to over-representation ceteris paribus (i.e., or everything else being equal). Increased policing will lead to increased prosecution, which leads to increased incarceration, which leads to socio-economic consequences and increased recidivism. So, it’s a self-fulfilling prophecy. Justice Derrick outlines many of the aspects of the problematic history of systemic racism in Nova Scotia, including what’s been documented in the Wortley Report and the Marshall Inquiry.[10] The decision reiterates what the SCC had said in R v RDS, [1997] 3 SCR 484 that judges are entitled to take notice of racism in Nova Scotia,[11] but now goes on to say that judges must not only do so, but also must conduct a meaningful inquiry into the impacts that systemic racism has had on the moral culpability of any African Nova Scotian accused.

3. Does the Decision Impact All Racialized Persons Accused?

There is still some ambiguity as to who exactly the sentencing applies to, with some arguing that the case builds on R v Morris and opens the door for Gladue factors applying to all racialized people across Canada. A letter commending the decision, penned by the Canadian Association of Black Lawyers, seemingly blends the terms “Black” and “African Nova Scotians.” Early on in her reasons, Justice Derrick mentions that African Nova Scotians, racialized, and Black people would all be used somewhat interchangeable while also mentioning the Black Lives Matter movement generally, perhaps connecting the case to that larger movement.[12] The modern approach to sentencing relied on by the trial judge and articulated by the court of appeal does apply to all racialized offenders. Namely individual circumstances are essential in the determination of a proportional sentence, and therefore other racialized groups can ask for IRACs and prove that their circumstances have been impacted by systemic racism. Systemic racism will not always minimize the moral culpability of an offender, nor will it always avoid a sentence of federal incarceration. The IRAC serves the purpose of deciding whether or not systemic racism has significantly impacted a person or the circumstances of an offence. The recent Bill C-22 supports this view, as it acknowledges the reality of overincarceration of racialized people and identifies the conditional sentencing regime as both a site of systemic discrimination and a potential tool for correcting this over-representation. R v Morris seems to affirm that systemic anti-Black racism can—and should be—taken judicial notice of.

4. Conclusion

The foundation laid by the NSCA for the sentencing of African Nova Scotian accused is important because for too long, people in the ANS community have been taught (sometimes even self-taught) that they don’t have a worthwhile future, and this is made worse when police officers, prosecutors, and judges may believe the same. The cycle of racial bias needs to be broken, and this decision and this approach helps to do that. The Royal Commission of Inquiry into the prosecution of Donald Marshall Jr. recommended that “the Chief Justices and the Chief Judges of each court in the province exercise leadership to ensure fair treatment of minorities in the system.”[13]  My observations from a distance are that with help from scholars like Dalhousie’s Professor Williams and Dugas, and lawyers like Drew Rogers of Nova Scotia Legal Aid[14], Chief Judge Pamela Williams of the Provincial Court and Justice Ann Derrick of the Nova Scotia Court of Appeal are doing just that.

[1] R v Anderson, 2021 NSCA 62 at para 2 [Anderson].

[2] Ibid at para 9.

[3] The NSCA Decision was released August 17, 2021, just two days after my family arrived in Halifax.

[4] My birthfather immigrated from Haiti, one of the countries where some early African Nova Scotian maroons may have come from or had connections too.

[5] Anderson, supra note 1 at para 144 citing Professor Maria Dugas. Professor Dugas has also been recently featured in a podcast that is quite prescient in light of how the NSCA has ultimately decided Anderson, as well as an earlier post in this blog that discusses the R v Anderson appeal prior to the NSCA’s decision.

[6] Ibid at para 118.

[7] Ibid at para 123

[8] Ibid at para 89.

[9] Ibid at para 131-135.

[10] Ibid at para 95-99.

[11] Ibid at para 47.

[12] Ibid at para 14.

[13] Ibid at para 99.

[14] The trial lawyer who argued Anderson.

DLJ Podcast – Ep 18 – Florence Ashley – Genderfucking Non-Disclosure

Join Tom and Florence Ashley, transfeminine jurist and bioethicist, as they discuss Florence’s paper from the DLJ, “Genderfucking Non-Disclosure: Sexual Fraud, Transgender Bodies, and Messy Identities”

Florence unpacks gender disclosure in sexual assault as it relates to trans people and more broadly discusses the role of the state in gender.

Resources:
Florence’s paper: digitalcommons.schulichlaw.dal.ca/dlj/vol4…/iss2/3/
Florence’s website: www.florenceashley.com

Also available on Spotify

What does decolonizing research mean to me?

By: Nayha Acharya, Assistant Professor of Law – Schulich School of Law

On October 22, 2020, the Schulich School of Law convened a panel for our faculty seminar series to discuss “Decolonizing Research.” I was part of this panel along with Sherry Pictou, Naiomi Metallic, and Olabisi Akinkugbe.  Each panelist responded to the question “What does decolonizing research mean to you?” and then engaged in an open discussion with the faculty members and graduate students who were present. I have offered a slightly edited version of my narrative here.

My initial reaction when I received the invitation to be part of this panel was that I didn’t think I could contribute much because I hadn’t set out to expressly decolonize my research, and decolonization has also not been a substantive area of research for me. In fact, most of my writing so far has involved an analysis of the legitimacy of the adjudicative system—a system rooted in a Western worldview.

On reflection, though, I realized that for several years now, I have been in a process which I think I can rightly call decolonizing myself, and I have seen that internal shift starting to impact my research.

This phenomenon of what I’m referring to as self-colonization is something that I find quite fascinating among Asian immigrants and their children.  I, like many, grew up straddling two cultures plus my own personality. Indian heritage was prevalent in my upbringing, but what I find so intriguing is that there was also a clear commitment that the dominant White culture, with its institutions and ideals, is hierarchically better and more important. After all, why else would we have come to Canada? It follows then, that we must be grateful to be part of Canadian society (which I am) and that we should also demonstrate that gratitude by conforming to the dominant culture and its behavioural norms, by not asking for or expecting too much, by accepting that the hurdles that are put before us are deserved, and by being at least a little apologetic about being here. It’s this internalization and the subsequent breaking down of it that I wanted to share in the panel discussion and in this piece.

Before I came to the Schulich School of Law for graduate studies, I worked at a law firm where I quickly felt very uncomfortable. Over the years, that developed into a sense that I was not good at law. There may be some objective truth to that, but that idea developed in me (as I believe it does in others) at least in part because of a misperception that every structure, every institution, and the expectations of the dominant culture, are wholly legitimate, and my discomfort arises because I am illegitimate, problematic, or wrong. (I want to be careful here not to overstate a sense of being a victim of the law firm I worked at—I do not perceive myself that way.  First, I met one of the most important mentors in my life at the law firm I was at, and many other lifelong friends. And, I also had (and continue to have) extensive privilege due to my socio-economic background. But when I dig into my memories, the emotions, thoughts, and feelings that I describe here are starkly present.)

So, this sense of illegitimacy in law, along with a commitment that Western institutions, structures, culture, and way of thinking and behaving all represent what is ‘right’ came with me when I started doing research in law. I have contemplated how this impacted my research.  First, I noticed that I easily adopted an arms length, purely analytical style in my writing, which doesn’t leave room for any subjective “me”. This seems consistent with my internal state of being, wherein “me” was illegitimate—it doesn’t need to appear distinctly in my writing, and in fact it shouldn’t. Second, my doctoral work focused on searching for an articulation of the legitimacy of the legal adjudication system. I do like my work in that arena, and I think it is analytically sound, but it was limiting in that I was focusing exclusively on Western jurisprudence and learning from and citing only theorists who have Western worldviews and seeing their debates as the only ones that are relevant in theoretical work about law.

I have found that the more I have broken down my internal commitment to a hierarchy of cultures, and the less I have tried to define my own legitimacy in comparison to the dominant culture, the more freedom I feel, and correspondingly, my research is also freeing itself from those initial constraints that I had put on it. I have found that I have discovered, and accepted the validity of, methodologies that allow for subjectivity—like autobiographical inquiry, meditative inquiry, narrative research, and writing, which are prevalent in other fields like Education and which Sherry Pictou (a co-panelist) would have more familiarity with than me. I have dabbled in these methodologies and have enjoyed the work that has emerged tremendously, because that work is connected to my heart, while my analytical work is connected primarily to intellect.

Substantively, I have moved into writing about conflict resolution and mediation, which have at their core a foundational and remarkable critique of the formal system of law and adjudication that prevails, and whose roots can often be traced to non-Western ideas/ideals. This area has also enabled me to introduce non-Western concepts and writers into my research because Eastern philosophy has done incredibly insightful work on conflict for centuries. I have becoming keenly interested, for example, in the philosophy of Jiddu Krishnamurti who has discussed, extensively, the human experience of conflict.

These research shifts, to me, are a by-product of a process of self decolonization. I’m grateful that this process has unfolded in me, because it has allowed me to let go of “imposter syndrome”, and to stop trying to constantly measure up to any dominant culture or ideology—whether that’s law firm culture, or law school culture, or Indian culture, or anything.  I don’t feel like an imposter in the academic world because teaching and writing feel natural to me, and I no longer believe that any ideological, cultural, or behavioural conformity should dictate anyone’s actions or self-concept. The sense of freedom that comes with letting go of being internally dominated by any external force (which is perhaps a broad definition of colonization) is necessary, not just to meaningful research and writing, but also to living fully.

Explore more of Nayha Acharya’s work:

Watch a presentation of related remarks at the J Krishnamurti and Contemporary World Crises Conference.

Read her paper, “Critiquing Instrumentalism in Higher Education,” about non-traditional teaching methods available open-access.

DLJ Podcast – Ep 15 – Jena McGill and Amy Salyzyn – Judicial Analytics

Join Haneen as she talks with Jena McGill and Amy Salyzyn about their upcoming paper in the DLJ, “Judging by Numbers: How will Judicial Analytics Impact the Justice System and its Stakeholders?”

Jena and Amy explain some of the benefits of judicial analytics software and a few concerns that arise with its use.

Also available on Spotify

https://soundcloud.com/user-653954800/dlj-podcast-ep-15-judicial-analytics

DLJ Podcast – Ep 14 – The Opioid Crisis as Health Crisis, Not Criminal Crisis

Join Ben and Haley Hrymak, Research and Community Outreach Lawyer, as they discuss her recent paper in the DLJ, “The Opioid Crisis as Health Crisis, Not Criminal Crisis: Implications for the Criminal Justice System”

Haley explains the problems that arise in the current system, particularly the harms faced by opioid users, and outlines considerations for future policy design.

Resources:
Haley’s Paper: digitalcommons.schulichlaw.dal.ca/dlj/vol4…/iss1/4/

Also available on Spotify

https://soundcloud.com/user-653954800/dlj-podcast-ep-14-the-opioid-crisis-as-health-crisis

James Robinson Johnston (1876–1915): The Life of The Coloured Barrister Revisited

By: Justin Marcus Johnston, a Nova Scotian author, writer, and historian. Justin is the author of James Robinson Johnston: The Life, Death, and Legacy of Nova Scotia’s First Black Lawyer (Halifax, NS: Nimbus Pub, 2005).

 

In 2005 I wrote the biography of James Robinson Johnston (1876–1915), Nova Scotia’s first Black lawyer. I am also his collateral descendant—his youngest brother was my great-grandfather.

Since my initial research in the early 2000s, I am left with more questions than answers about the rise of the “colored barrister” from the working-class, North End of Halifax to the academic halls of Dalhousie University and the legal profession. His work with the Conservative Party as a stump speaker, his involvement in freemasonry, his support of the African Baptist Association churches, and even his links with the international Pan-Africanism movement show that Johnston was ahead of his time when few, if any, opportunities existed for African Nova Scotians.

I wish to avoid repeating the biographical details of Lawyer Johnston’s life. Numerous writers and historians have informed the public about his significance to Nova Scotian history. However, few have speculated on the reasons why he was murdered, or perhaps assassinated, and the forces inimical to his life. I believe I am best qualified to answer these questions being both his biographer and descendant.

The most plausible homicide theory, in my opinion, is that Johnston was the target of a murder-for-hire. This theory is based on the police reports, trial transcripts, and remission case file of his brother-in-law and killer Harry Allen, who was known as a ne’er-do-well and drunkard.  Allen shot Johnston five times at point-blank range in the family home. Family sources indicate that Johnston and Allen never got along. In court, Allen never disclosed his reasons for killing his brother-in-law except “drunkenness.” Johnston provided Allen with food, lodging, and employment at the request of his wife Janie, Allen’s sister. Allen was the brother-in-law of a successful lawyer, who lived in a nice house in a respectable neighbourhood well outside Halifax’s North End slums (including Black districts) where he had grown up. His life was far better than that of the average working-class black or white man at the time. Why Allen would have wanted to kill his only benefactor is a mystery.

On March 3, 1915, Johnston was ambushed and killed by Allen in his home before the family meal.  In the aftermath of the murder, Allen had two criminal trials and was twice convicted of murder. The first trial ended with jury nullification. In the second trial, he was sentenced to hang but was eventually given a life sentence and early ticket of leave (now known as parole). Automatic parole considerations did not apply, as they came many years later, in 1959.

It is possible that the tearful letters of Janie Johnston, a widow, pleading for mercy on behalf of her troubled brother to the Minister of Justice and the Head of Penitentiaries was enough to save his life.  However, I believe Allen escaped his death sentence and was eventually freed because there were powerful people working behind the scenes, who planned the killing and used Allen as the willing assassin. Allen’s daily access to Johnston provided the opportunity. The sequence of events before and after the murder suggests that Allen was being used.

I think that those responsible for planning Johnston’s murder were after more than just money:  They wanted to settle a score. They harboured a grudge that money could not settle. Johnston’s wealth was not extraordinary to those in the legal profession at that time.  Jealousy is a minor motive. To those close to Johnston, his wealth likely seemed enormous—but to his white competitors downtown, his wealth was average at best.  It is therefore naive to believe his enemies were only out to claim his assets. I believe that Johnston’s enemies wanted to destroy him and his reputation, erasing him from the annals of history because they took personal offense at his courtroom triumphs.  I believe Allen was a front for a larger conspiracy. He was manipulated by others, perhaps for a promise of personal gain. Perhaps, a black man killing another black man provided just the right cover to hide the true identity of all those involved.

This real-life story has elements of Shakespearean tragedy: We see a noble hero rising in the profession and in community circles, only to be ambushed in his own home.  However, his murder was likely made possible, in part, because of Johnston’s own tragic flaws. He did not appreciate how determined his enemies were, and how dangerous and resourceful Harry Allen was.  Allen had nothing to lose and very little to gain, but the allure of easy money and the death of his arch-nemesis may have been just enough to motivate him to carry out the murder.

Allen spent less than two decades in prison and was known to be a model prisoner. His sister Janie, the person most affected by the ordeal, lived a long life into the late 1950s, with no surviving heirs and rendered penniless because of her brother’s actions. In her last known photos, her natural, light skin beauty has long faded, and she has become a wraith of ghostly white hair and wrinkles, due to the ordeal of losing her husband, fighting her in-laws in court, suffering poverty, and defending her deranged brother. She aged prematurely. She was no longer the wife of the “colored barrister,” but now just an ordinary Black woman, resigned to a hard existence doing domestic chores in the homes of white people, a stereotypical role in those years.  Totally subservient and loyal, she was completely dependent on white folks’ “charity.”  Who would have believed her former life? The places she visited, the people she met, and the luxuries she and her husband enjoyed.

In a twist of fate, Allen’s freedom was short-lived. Shortly after his parole in 1935, he moved to Montreal to be near family but was bitten by a rabid rat and succumbed to hydrophobia—a slow and painful death. He took the secret of who hired him to kill his brother-in-law to the grave. Allen left behind a widow and a stepson. Oral tradition in the family has it that Johnston returned from the grave in the form of a rat to avenge his death because justice was not served.

Elders, no longer with us, likely knew the real reasons why Allen killed his brother-in-law and also knew the identities of his co-conspirators. They choose silence over the truth.  Out of respect, I will not name them here. These elders were the guardians of our history, trusted with every story, rumour, and family secret.  Always dependable and reliable, their minds were a treasure trove of stored information spanning back generations, and capable of remembering—with precise detail—events and persons from long ago.  Nothing escaped their watchful eye. They passed their knowledge down to other trusted persons via the sacred oral tradition. Our tight kinship bonds and degrees of intermarriage mean that nothing is ever a secret among us African-Nova Scotians. We laugh, eat, sing, worship, and cry together. Collectivists in spirit, we share each other’s pain, fears, traumas and sorrows. One family’s loss is also another family’s loss. The loss of the paramount leader, a native son, a brother, and the circumstances surrounding his death were just too painful for all to bear.

Ultimately, Allen’s backers benefited from the Black community’s desire for self-preservation by maintaining a studious silence. Even now, it is often the community’s lack of cooperation and an overall distrust of authorities that allows actual killers to go free.

A worthy study is of the number of commutations and early releases granted during the 20th century in Canada for capital murder. Capital punishment was not abolished in Canada until 1976. I believe the record will show that the likelihood of any condemned individual, especially a person of color, escaping the death penalty and then receiving early release from prison is akin to an individual winning the jackpot lottery twice in a row.  Yet, this was Allen’s fate—or reward. It was an unlikely occurrence, and a statistical improbability at a time when most persons—Black, white, or Indigenous—hanged for murder, with convictions often based on little evidence. The racial otherness and destitution of criminal defendants charged with murder also almost certainly meant hanging. The only logical conclusion to be reached in the Johnston case is that Allen was more than lucky: He had help from powerful men who sought Johnston’s death.

I know of hopeless causes involving Black defendants, such as R v Farmer (1937). Everett Farmer was accused and convicted of killing his half-brother Zachari, who threatened to rape Farmer’s wife and kill his family.  Farmer acted in self-defence, surrendered himself to the authorities, and fully cooperated with them, but his efforts were in vain. His trial lasted one afternoon, and his death sentence was not commuted to life in prison.

Another case of great importance to Nova Scotian justice is Sampson’s case. In 1935, Daniel Perry Sampson, an unskilled labourer and World War One veteran, was convicted of the 1933 murders of two white boys. After two trials, Sampson was hanged behind the Halifax courthouse in March 1935.

There are many striking similarities between the Allen and Sampson cases. Both Allen and Sampson were Black men, twice convicted of murder and sentenced to death by all-white juries of that day. However, their interactions with the criminal justice system and the legal outcomes differed because of who their victims were.

Allen killed his brother-in-law, another Black man, a prominent leader in the community, but in the end was rewarded with his sentence reduced to life-in-prison and then with early release. In the other case, Sampson was accused and convicted of killing two white boys, allegedly because they provoked him with racial slurs and threw stones at him near the Rockingham railway tracks on the outskirts of Halifax.

In the Allen case, criminal responsibility was clear: Allen murdered Johnston and never hid the facts from the authorities. There were witnesses to his crime, including his sister Janie and a few neighbours. Moreover, the murder weapon was Allen’s firearm, which he kept in the family home.  Allen’s clothing was covered in blood following the murder. Allen even turned himself in.

Sampson’s guilt was in doubt from the very beginning. He had no clear motive and a “feeble” mental state (he suffered from PTSD). There was a police-written confession, which the illiterate man allegedly signed “with an X” in custody, but which disappeared before his first trial and was found again in time for the second. There was also a lack of corroborating witnesses. Sampson’s only mistake was that he was known to the police as a “retarded” Black man who walked the railway tracks where the boys were found dead. If he was guilty of murder, it could only have been on a charge of manslaughter, for there could have been no premeditation, especially if it is true that he killed the boys after they pelted him with stones and the “n-word.” (And even that “confessed” motivation seems unlikely.  In 1935, an adult Black male like Sampson could have been called the “n-word” frequently enough that it would have had the practical effect of being called “son” or “boy.”)

The thought of a maniacal Black man killing two white boys was too much for the public and the racially-biased, all-white male jury to bear. Lacking a fair trial, Sampson was destined to die for something he likely did not do.  The truth is that anyone could have dumped the bodies of the boys in the Rockingham scrub and brush, alongside railroad tracks travelled by Great-Depression drifters, creeps, derelicts, and other sketchy types. Even appeals for mercy from the father of the two boys were ignored by the courts. The system needed to blame someone, and Sampson was their unlucky target. The jury never got to learn the truth about Sampson—that he was a war veteran and a human being, not the monster presented in the media and the courts. He hanged in March 1935—nearly 20 years to the day of Lawyer Johnston’s murder in March 1915. And in the same year Allen suffered his dreadful fate. Sampson was the second-last man in Nova Scotia and the last in Halifax to be hanged. Everett Farmer, another unlucky Black man, became the very last condemned person to be hanged in the province.

The courts today would likely find Sampson not guilty. He did not receive a fair trial due to a biased and unrepresentative jury, police malfeasance, and/or reasons of insanity. In actuality, the case should never have made it to trial because of the lack of hard evidence.

Upon closer inspection, Allen unknowingly deprived two of his own kind to native counsel, and it cost them their lives. One wonders if Farmer or Sampson had been able to retain the legal services of Johnston whether their chances of winning their respective cases would have been higher. Johnston had a track record of successfully defending clients who were up against improbable odds due to his ability to sway juries with his oratory and sheer forensic brilliance—as seen in R v Murphy (1914). (Murphy was a white Irishman accused and acquitted of killing his grandmother-in-law.)

 

***

 

Over a century after Lawyer Johnston’s untimely death in 1915, at the age of 39, we are still left with questions. Why did Allen murder his brother-in-law? How did Allen benefit from his demise? Who else benefited? If Johnston had lived a few decades longer, how would our history be different?  Painful lessons are learned from this great tragedy. The aftermath of the murder permanently stigmatized Nova Scotia’s Black community. The death of a paramount leader set a community back many decades. One man represented the hopes, dreams, and aspirations of an entire community.  His absence, and the trauma of his death, caused Johnston to almost be completely forgotten by his people, and his accomplishments stolen by men inferior to him. With no one to replace him, he faded into oblivion and became the subject of ridicule and innuendo. Silly questions about his private life remained until recent decades and eclipsed his accomplishments.  It took 40 years before another native-born African Nova Scotian, George Webber Davis, was called to the Nova Scotia Bar. Davis hailed from the same North End Halifax slums where Johnston was raised. And it took even longer for a Black person to be called to the provincial bench.

Long overdue, a portrait of Johnston now hangs on the first floor of the Nova Scotia Supreme Court Building alongside other persons honoured for their contributions to the legal profession. The careful observer sees the enigma of Johnston’s portrait—a lone brown face in a sea of white lilies. He was a hero who challenged social convention, rising to the top of his profession only to become a hero slain before his time, and one who left behind an enormous legacy.

DLJ Podcast – Ep 12 – The Stakes in Steak

Join Charlotte and Angela Lee, Assistant Professor at Ryerson University’s Faculty of Law, as they discuss her paper in the DLJ, “The Stakes in Steak: Examining Barriers to and Opportunities for Alternatives to Animal Products in Canada”

Angela explains the broad importance of food and food law around the world, the links between food systems and the environment, and the regulatory barriers to alternative meat products in Canada.

Resources mentioned:
– Angela’s paper: https://digitalcommons.schulichlaw.dal.ca/dlj/vol41/iss1/9/
– Documentary on food waste: “Just Eat It”
– Heather McLeod-Kilmurray, Angela Lee, & Nathalie Chalifour, Food Law and Policy in Canada
– The Good Food Institute: https://www.gfi.org/

Also on Spotify

https://soundcloud.com/user-653954800/angela-lee-edit

 

The (un)constitutionality of Ontario’s new ag-gag legislation

By Jodi Lazare
Assistant Professor of Law – Schulich School of Law
jodi.lazare@dal.ca

 

In June 2020, the government of Ontario adopted the Security from Trespass and Protecting Food Safety Act, 2020. The Act is aimed at a worthwhile objective—the protection of the safety of Ontario’s farmers and of the food system. Unfortunately, by limiting expression, the bill poses a serious risk to the constitutional rights and freedoms of Canadians.

In the days leading up its adoption, I testified before the Standing Committee on General Government, setting out my concerns with the bill. What follows is the text of my submissions, with some modifications for clarity:

As someone who has taught constitutional law at a Canadian law school since 2014, and Animals and the Law since 2017, I am concerned that Ontario may be on the verge of adopting a law that would not survive a constitutional challenge. In February, I signed a letter to this effect, along with more than 40 other legal experts. Here, I flesh out some of the concerns expressed there.

 I will focus on the two parts of a constitutional analysis, starting with whether the legislation limits Charter rights. It is pretty clear to me, and to others, that Bill 156 indeed violates the Charter.

 Section 4(6) of the bill makes it an offence to gain entry onto a farm, or other agricultural or animal use premises, like a slaughterhouse, under false pretences. From a constitutional perspective, the provision dictates what someone is and is not permitted to say. In other words, it targets a particular message—a misrepresentation—and says, “you cannot say this.” That is a clear violation of freedom of expression.

 But more significant, perhaps, is the effect of the prohibition, which is that it limits the ability of undercover journalists, for example, or employee whistleblowers, to share information with the public.

 To gain access to an industrial farming operation, an undercover journalist might misrepresent their identity—a requirement when many farms are not open to the public without an invitation. Entry under false pretences, in order to document the treatment of animals on farms, becomes the only way for journalists, and animal rights activists, to ensure that Canadian consumers understand the consequences of their purchasing choices and can make informed choices about they buy, what they eat, and what they support with their dollars.

 In the United States, where similar laws, known as ag-gag (agricultural gag) legislation, have been repeatedly ruled unconstitutional, these kinds of investigations have led to legislative reforms regarding animal farming and food safety.

 The same is true of dietary choices; research suggests that the majority of Americans who change their diets to include fewer animal products do so as a result of what they learn about commercial farming and the treatment of farmed animals.

 Regardless of one’s choices upon being confronted with heartbreaking images of farmed animals, the bottom line is that every person has a right to the information on which to base those choices. Indeed, the Supreme Court of Canada has been unequivocal about the fact that the Charter protects not only the right to speak, but also the right to listen, and to receive the kind of information that influences personal consumer and dietary choices.

 Bill 156, in section 5, prohibits interfering with a vehicle transporting animals to slaughter and interacting with an animal on a vehicle. A quick read of the provision suggests that it is in direct conflict with the Charter right to freedom of peaceful assembly. It is telling people—animal rights activists and members of the Save Movement, who regularly demonstrate outside of slaughterhouses and whose presence on public roadways might interfere with the movement of a vehicle—that they cannot hold those gatherings.

 But I would argue that the transport provision also limits freedom of expression. People who protest outside of slaughterhouses—who approach transport trucks with animals on them—are carrying out a particular expressive activity: the act of what they term “bearing witness” to the final moments of animals’ lives, attempting to bring them some kind of comfort, and documenting and sharing what they see with members of the public. Again, the law tells them they cannot express themselves in this particular way.

In both cases (false pretences and transport), the expression in question is political. It is also truth-seeking and information sharing. These are the purposes of freedom of expression in Canada. It is expression on an issue that’s deeply meaningful to activists and, as American courts have recognized, a proper subject for public debate.

 In Canada, courses on animal law are now offered in at least half the law schools across the country. I have given public lectures on the subject to full auditoriums. This is a subject that people care about—morally, legally, and politically.

The expression being limited here is what I would characterize as “high value speech,” a concept I am borrowing from the Supreme Court of Canada, which has said multiple times that political speech lies at the core of freedom of expression, itself one of our most fundamental freedoms. What that means, in practical terms, is that restrictions on that speech will be harder for the government to justify—the second part of the constitutional analysis.

 When a claimant makes out a limit to a constitutional freedom, the Charter dictates that the burden shifts to the government to bring evidence demonstrating that the limit is justified “in the interests of a free and democratic society.”

Justification is a complex, multiple-step test, which can easily lend to confusion. What I put to you, in simple terms, is that the provisions dealing with false pretences and interference with transport vehicles are not rationally connected to the legislative objective.

The bill and the accompanying materials are very clear that the objective here is to protect farmer safety, animal safety, and biosecurity. To prevent the risks, in other words, associated with people trespassing onto farms.

As I understand things, however, trespassers are not gaining access based on false pretences. They are not posing as employees. They are not undercover investigators, or journalists. They are protestors. They do not get permission, based on the truth or on a misrepresentation, before they enter farms. They simply enter, or trespass.

The false pretences provision, then, seems to be aimed at something else. Something more sinister, or covert—like those who might pose as employees in order to act as whistleblowers.

 The difficulty here is that there is nothing to suggest that these individuals might threaten biosecurity. They are not the cause of the mischief being targeted, in other words, which means that limiting their speech is not rationally connected to the legislative purpose. And that is enough for a constitutional challenge to succeed. It’s also the basic reasoning underlying at least three of the American cases dealing with similar ag-gag legislation restricting entry onto a farm based on a misrepresentation.

The false pretences provision is also not minimally impairing, another constitutional requirement. There are ways to achieve the legislative objective here, that have less of an impact on fundamental freedoms, such as simply raising the penalties for trespassing or expressly prohibiting the introduction of biosecurity threats, like the federal private member’s Bill C-205 would do. Both of these things impair rights less than the current form of the legislation. And that, again, is enough for the law to fail.

I would also argue along similar lines with respect to the transport provision. Justification is an evidence-based analysis. To my knowledge, and at least one Canadian judge has agreed, there is no evidence that protestors outside of slaughterhouses are introducing any kinds of contaminants to the food system or endangering the safety of animals headed to slaughter. So again, no rational connection between the prohibition and the legislative objective—enough for the law to fail.

There is a lot more to say about Bill 156. Others have made the case that it is bad for animals and bad for democracy—that the bill shields the entire animal agriculture industry from public scrutiny when what is really needed is more transparency for an industry that self-regulates its treatment of animals. But as far as the Charter goes, the analysis sketched out here should suffice to demonstrate that Ontario likely just adopted an unconstitutional law. What happens next will depend on those willing to use these arguments to challenge the law in court and on the judges that hear them.

Jodi Lazare, DCL, is an assistant professor at the Schulich School of Law at Dalhousie University, where she teaches Constitutional Law, Animal Law, and Family Law.

 

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