Common Law Radio

February 13, 2017 – The Site C Dam is a large-scale hydroelectric dam, currently under construction on the Peace River in northeastern British Columbia and situated on the traditional territory of the Treaty 8 First Nations. Site C has been highly contested by a number of First Nations communities and has been the subject of a number of cases brought before both provincial and federal courts. In early February, the BC Court of Appeal, affirming the decision of the Supreme Court of BC, dismissed the Prophet River and West Moberly First Nations’ petition for judicial review of the provincial government’s decision to grant environmental permits to BC Hydro for the project. Although the cases discussed in this episode relate to the Site C Dam, they have much broader implications for First Nations peoples with respect to securing recognition of their constitutionally protected rights. We were joined by John Gailus, a founding partner and director of Devlin, Gailus & Watson in Victoria. John appeared as counsel for the Prophet River and West Moberly First Nations in their applications for judicial review and has extensive experience practicing in the area of Aboriginal law. We were also joined by Caleb Behn, a member of the West Moberly First Nation, a former lawyer, and fervent advocate of Aboriginal Rights. Caleb has worked diligently to promote awareness and education surrounding Aboriginal Rights and issues through a variety of avenues, including the documentary ‘Fractured Land’, the organization Keepers of the Water, and countless articles and interviews featured on a variety of platforms.

January 2017 – In 2013, the Canada v Bedford case saw the Criminal Code provisions regulating sex work in Canada struck down as unconstitutional. The new legislation introduced by the federal government to regulate this area, titled the Protection of Communities and Exploited Persons Act, came into force the following year. Pivot Legal Society, a Vancouver-based anti-poverty group, recently released a report on the impact of the new laws, titled Evaluating Canada’s Sex Work Laws: The Case for Repeal. Brenda Belak is a lawyer at Pivot and a co-author of the report. Kerry Porth is a former sex worker, former executive director of the sex worker advocacy group PACE Society, and current chair of Pivot’s board of directors. They joined us in the studio to tell us about the work that went into the report, share their experiences, and why they think the current laws are doing more to hurt than help sex workers.

The UN Committee on the Elimination of Discrimination Against Women recently published a report following its review of Canada’s progress and fulfillment of its obligations under CEDAW in late October. In the report, the Committee expresses concerns over a lack of access to affordable child care, resulting in a tendency for women to take on part-time, low paying work as a result of their roles as caregivers. The Committee also expressed concerns about the erosion of legal aid and the resulting lack of access to justice facing Canadian women. In this episode we examined how these issues relate to the bigger picture of Gender Inequality facing women in British Columbia. We first spoke with Kendra Milne, Director of Law Reform at West Coast LEAF about West Coast LEAF’s annual CEDAW report card, which documents the province’s performance with respect to its obligations under the Convention. We also discussed the current state of access to child care in BC, as well as its relationship to poverty, violence against women, and other gender inequality issues. Next we spoke with Tracey McIntosh, Director of Justice for Girls about access to justice, legal outreach and advocacy, and related issues facing young women in the province. Tracey was joined by a number of Justice for Girl’s Young Women Interns who had much to share about the positive experiences they’ve had since joining the organization.

In November the Supreme Court of Canada rendered a decision which brings to a close a 14-year legal battle between the BC Teachers’ Federation and the government of British Columbia. The court concluded that in 2002 the BC government violated the Charter of Rights and Freedoms by passing a law restricting what the BCTF could bargain with the government and re-writing their existing collective agreement. The government then compounded that error a decade afterwards with new, but substantially similar, legislation. What did the government do? What does the Charter require? And just what has all of this meant for teachers, students, and the BCTF? Hear BCTF President Glen Hansman and BCTF General Counsel Diane MacDonald discuss these issues with hosts Joshua Prowse and Daniel Oleksiuk.

June 2016 – Human Rights Commissions are considered part of the trifecta of human rights institutions: a tribunal to adjudicate complaints, a clinic to represent complainants, and a commission to represent the public interest. BC’s commission was shuttered about 15 years ago. In this episode we look at what the commission did, what other commissions do, and what the prospects for such a commission are in BC. Harinder Mahil was the head of the BC Human Rights Commission when it was shut down in 2002. Therese Bouillard was the Director of Human Rights at the Northwest Territories Human Rights Commission. They spoke with us about a Poverty and Human Rights Centre report released through the Canadian Centre for Policy Alternatives calling for the re-establishment of a Human Rights Commission in BC.

November 14, 2016 – The case of Adam Capay in Ontario has risen to media prominence this fall as a troubling example of the use of solitary confinement in the criminal justing system, a practice that a United Nations Special Rapporteur has equated with torture. Valerie Napoleon is the Law Foundation Professor of Aboriginal Justice and Governance at the University of Victoria. She talks to us about her work writing about indigenous legal practices, and how she and other scholars are working to make space for indigenous laws in the Canadian legal system. Jennifer Metcalfe is Executive Director of Prisoners’ Legal Services (PLS) in BC, part of the West Coast Prison Justice Society. She joins us for the second half of the show to discuss solitary confinement in BC’s prisons, the support provided by organizations like PLS, and the ways in which prisoners’ rights are (un)noticed our public dialogue.

October 24, 2016 – Tent cities have become a fixture of urban life in British Columbia. In two recent cases the BC courts have examined the law related to tent cities in Abbotsford and Victoria. Hear housing and homelessness lawyer DJ Larkin of the Pivot Legal Society discuss her work on the case Abbotsford (City) v. Shantz. Then hear Stephen Portman of Victoria anti-poverty advocacy organization Together Against Poverty Society (TAPS) talk about the homeless encampment in Victoria dubbed the Super InTent City. This tented community existed for nearly 10 months on the courthouse lawn in Victoria and was home to upwards of 120 individuals at its height. We talk about the provincial government’s efforts to shut down the tent city in the case British Columbia v. Adamson. Why do people who are homeless turn to tent cities instead of shelters? What does the government need to prove when they want to shut down a tent city? And how did these tent cities benefit their inhabitants?

October 14, 2016 – The online resource-sharing site PovNet has provided anti-poverty advocates across BC with information, networks, and training for almost two decades now. The organization aims to help address the “digital divide” that arises when poverty and technology intersect, and low-income folks face difficulties accessing both resources and community due to lack of access to the internet. Penny Goldsmith, former executive director of PovNet, has recently written a book (titled “Storming the Digital Divide: the PovNet Story”) discussing the organization’s story since its founding in 1997. Along with well-known Downtown Eastside activist Jean Swanson, Penny joins us on the podcast to discuss her book, poverty and the digital world in BC, and the stories she’s come into contact with over the years.

May 2016 – The Living Wage. It’s an appealing idea: people should earn enough to meaningfully participate in society and to be able to raise children. But how exactly is the living wage calculated? How does the line set by the living wage really differ from the poverty line? Is it a problem with the concept of the living wage that it won’t adequately support a single parent? And to what extent is the living wage calculation something fixed or something that will evolve over time in response to feedback from low waged persons? Getting into these issues raises all sorts of questions: from just why daycare costs have been rising so quickly in BC to what the role of unions and unionization is in the living wage campaign. Listen to the episode for an in-depth examination of the concept of the living wage.

April 2016 – Late last year the Information and Privacy Commissioner for BC released a report, Access Denied: Record Retention and Disposal Practices of the Government of British Columbia. Describing what has come to be called the triple delete scandal, this report detailed a government culture of avoiding the access to information process. An assistant to the Minister of Transport, George Gretes, is facing charges for his role in covering up the fact that after he received a request for records related to murdered and missing aboriginal women, he searched for them, deleted the records, and then indicated that there were no records that responded to the request. The Premier’s Deputy Chief of Staff has been deleting every email she has ever sent every day she’s been on the job – despite a previous Commissioner report into this practice. The Chief of Staff to the Minister of Advanced Education stated in response to an access request – incorrectly – that he didn’t send any emails to the Minister for half a year (he sent about one a week). We speak with Vincent Gogolek, Executive Director of the BC Freedom of Information and Privacy Association about what happened and what’s happened since this report was released.

April 2016 – It is basic law that mental disability or illness does not, in and of itself, leave a person incapable under the law to carry out transactions, enter into relationships, or manage his or her affairs. The law’s focus is on the degree of mental disability or illness. If a person’s mental illness or disability exceeds in degree a legal threshold, then that person will be considered incapable in the eyes of the law. This legal threshold is commonly called a test of capacity. We speak with Kevin Zakreski, Staff Lawyer at the British Columbia Law Institute about a 2013 report that the BCLI released analyzing and critiquing this area of law. What are the ethical implications of such tests of capacity? Does this system create catch-22s that can discriminate against persons with diminished capacity? Just what does capacity really mean and to what extent is our law about capacity consistent with modern medicine?  Read the full report on the BCLI web page: http://www.bcli.org/project/rationalizing-and-harmonization-bc-common-law-tests-capacity

February 2016 – Trinity Western University is the largest Christian university in Canada. It requires staff and students sign a Community Covenant in which they pledge to maintain a particular conception of Biblical ideals and eschew sex outside of “traditional heterosexual marriage.” BC lawyers voted in a referendum to not allow graduates of their proposed law school admittance to the bar. In December 2015 that stance was reversed by a Supreme Court of British Columbia decision which reinstated the Law Society’s earlier approval of the school. We speak with David Mossop, QC, a life bencher with the Law Society of BC who participated in all of the key votes on TWU’s law school. We then hear an excerpt from a 2015 address by Diana Ginn, a Professor of Law at Dalhousie University’s Schulich School of Law. She speaks to the litigation about TWU and the broader issue of conflicting Charter rights. 

November 2015 – The Law Society of British Columbia states that addressing the challenges arising from the Truth and Reconciliation Commission of Canada’s findings and recommendations is one of the most important obligations facing the country and the legal system today. We speak with Dr. Marie Wilson, one of the commissioners, about the Commission’s report, the recommendations contained therein, and the next steps that she is looking for from our governments and other institutions.

October 2015 – In 2012, Parliament passed legislation to eliminate the Canadian Wheat Board’s monopoly on grain marketing. This summer the Board’s assets were sold off and it became a company called G3 Global Grain Group. This is an introduction to the Wheat Board: what did it do? What has the effect of eliminating it been? We speak with Doug Scott, a board member with Canada’s National Farmers Union. Then we talk to Al Loyns, past president of the Canadian Agricultural Economics Society, and formerly an agricultural economist with the University of Manitoba.

September 2015 – Will prohibitions on safe injection sites be enforced? How active are police in enforcing drug laws just outside safe injection sites? Just what is the legal regime governing applications to open new safe-injection sites? We explore the law related to safe injection sites in Canada, from the 2011 PHS case at the Supreme Court of Canada to the approval regime established by the Respect for Communities Act to Montreal’s plans to open up four such sites. We speak with Adrienne Smith, Health and Drug Policy lawyer at Vancouver’s Pivot Legal Society. Then we talk to Louis Letellier de St-Just, a lawyer with Cactus Montreal, the group which started North America’s first needle exchange program and is now the driving force behind plans for that city’s safe injection sites.

August 2015 – The 48 members of Vancouver’s Grandview-Woodland Citizens’ Assembly were randomly selected from among over 500 local volunteers. These residents of Vancouver’s eponymous neighbourhood learned about the planning process, examined different directions for neighbourhood development, and proposed a plan for the neighbourhood’s next 30 years. We explore this process by speaking with Rachel Magnusson, chair of the assembly; Adriane Carr, the Green Party of Vancouver representative on Vancouver City Council; and Edana Beauvais, a PhD candidate in UBC’s Department of Political Science who is researching this process.

July 2015 – The Great Bear Rainforest spans the British Columbia coast between Vancouver Island and Southeastern Alaska. A set of agreements are now being completed about the conservation regime that will apply to this region. We look at the Great Bear Rainforest Agreements, the way that they were negotiated, and the relationship between forestry policies and global warming. Hear from Jens Wieting, the Forest and Climate Campaigner with the Sierra Club British Columbia and then hear from Domenico Iannidinardo, Chief Forester and Vice President for Sustainability with TimberWest.

June 2015 – Economist Robyn Allan discusses the economics of oil pipelines and her involvement in the National Energy Board hearings for the Enbridge Northern Gateway Pipeline and the Kinder Morgan Trans Mountain Pipeline. We talk about pieces that she has published in The Tyee on questions such as: How much does Kinder Morgan pay in taxes in Canada? What is the liability regime for oil spills both marine and terrestrial? What might the effect of a pipeline be on the prices that Canadians pay at the gas pump?

May 2015 – The BC Public Interest Advocacy Centre has filed a complaint with the Ombudsperson of BC. It requests an investigation into service reductions at the Ministry of Social Development and Social Innovation which have impaired British Columbians’ access to income assistance programs. Hear from Amber Prince, a lawyer with Atira Women’s Resource Society, and Erin Pritchard, a staff lawyer with the BC Public Interest Advocacy Centre, about this complaint. Then hear an excerpt from an address that Medicine Hat, AB mayor Ted Clugston gave to the BC Poverty Reduction Coalition last month about anti-homelessness initiatives in his city.

April 2015 – 1 in 5 children in British Columbia grow up in households with earnings below the poverty line. This is the headline statistic from the annual child poverty report card released by First Call, BC’s Child and Youth Advocacy Coalition. Hear from their Provincial Coordinator, Adrienne Montani, about the relationship between poverty levels and myriad government programs. Then listen to Anna Chudnovsky, a Vancouver-area elementary school teacher, about how poverty has affected some of her students. Finally, Seth Klein, director of the Canadian Centre for Policy Alternatives’ BC office, discusses effects that changes to the welfare system have had on British Columbians more broadly.