Morality, Criminality, and Status Offences Flashcards
What are Moral reformers?
In the early national period, there is little proactive policing of morality because the state is weak, few acts have been deemed immoral, and legal cohesion is not present. Moral reformes, responding to structural changes in society that they beleived represnted the fracture of social cohesion, sought to make morality central to the law and to discourage immoral practices. A varied bunch, they differed in who the primary target of their campaigns should be (soceity as a whole vs. the urban working class)
What are Blue Laws?
Blue laws were passed prohibiting business and leisure activities on Sundays. Pleasure excursions were eventually limited as well, leading to the outlawing of street service. Reformers, projecting an upper-class revulsion for working people and anxieties over christianity’s lossening grip, saw Sunday travel as a gateway drug. Streetcar service is returned in 1897. Refromers continued pushing, which leads to the 1906 Lord’s Day Act, which remains on the books until 1985 R. v. Big M Drug Mart Ltd.
What is R. v. Big M Drug Mart Ltd.?
It is a landmark decision by Supreme Court of Canada where the Court struck down the federal Lord’s Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms. This case had many firsts in constitutional law including being the first to interpret section two.
IN 1982, the Calgary store Big M Drug Mart was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act of 1906. The Supreme Court ruled that the statute was an unconstitutional violation of section 2 of the Canadian Charter of Rights and Freedoms, deciding that there was no true secular basis for the legislation and its only purpose was, in effect, to establish a state religious-based requirement, and was therefore invalid.
What are Penitentiaries?
Those meriting a setence of 2 years +1 day were sent to penitentiaries. The idea behind penitentiaries was that criminals could be saved and that penal institutions should reform not just punish wrongdoers. Crime could be deterred if the punishment was proportional to the crime. Inmates were stripped of their identities, subjected to the regime of work and relgious reflection, and forced into silence. Penitentiaries ultimately failed to discipline convicts and transfrom them into industrious Christan workers as the public resisted competition from prison labour, they were consistently overcrowded/underfunded, practical challenges limited the vision, and punishment remained the preferred method of addressing problems.
What is prohibition?
Alcohol was seen as weakening the moral fiber of people and was libked to other immoral acts. Temperance had some logic behind it, but it was not evenly applied (working-class, migrants racialized communities bored the brunt of it). In the late 19th century, a national plebiscite on probhibtion is defeated. Moral reformers reframe the debate into a gender issue and, as a result, some provincial victories materialize. In the early 20th century, prohibition states becoming the popular pinion (bolstered by WWI) By 1916, every municipal and provincial government had restirictions on the sale, trade, and consumption of alcohol. After the war, however, Canadians called for a return of normal life, inclduign the freedom to drink.
What are vagrancy laws?
They controlled those who threatened disorder in society and represent an example of the connection between law and social control. some argue they were also overt instruments to discipline the working class to facilitate a capitalist labor market. Confederation was a the time that there was no system in place to handle poverty; responsibility fell to the private sphere and many ended up in asylums and prisons. Some public and semi-public measures are implemented but they are piecemeal and contued to frame poverty as a moral failing.
What are Master-Servant acts?
Master and Servant Acts in Canada were laws that governed the relationship between employers and employees. The laws addressed conflicts between employers and employees, and specified penalties for not meeting contractual obligations. They terminate the system established under poor laws and shift towards the notion of “freedom of contract”. Disobeying was criminzalized; coercive criminal law is used to uphold the “sanctity of the contract”. Employees had limited options before the courts, whereas employers could rely on a number of criminal offences as well as on a friendly court system.
What are the anti-combine acts (combination acts)
Organizing in the workplace was made illegal by these acts.
What was the Toronto Printers Strike?
In 1872, the strike sees 24 strike leaders arrested and charged with criminal conspiracy. This was after they asked for a 9-hour work day. They got a crowd of 10,000 people to gather in support however union activity was illegal at this time so it led to introduction of the Trade Unions Act.
What is the Trade Unions act?
PM Macdonald introduces the 1892 Trade Unions act, after the Toronto Printer Srike, Canada’s first labor law that gave workers the right to associate in unions and removed union membership from the definition of criminal conspiracy. However, conciliation schemes were rarely used, employers were not compelled to recognize unions, they continued to have access to coercive elements of the law, and the criminal code defines picketing as illegal.
What was PC 1003?
During WWII, a massive wave of strikes leads the government to passing PC 1003, which allowed unions to engage in collective bargaining in exchange for no strike clauses. This was following conflict growing between workers and bosses during the Great Depression and the effects of Industrial Disputes Act which required parties to submit to a process of investigationa nd conciliation.
What waws the Rand Formula?
It further legitimizes unions who agreed to act “responsibily”. The postwar settlement, a semi-formal agreement between labour, businness, and the state, secured workplace harmony but critics argue that it only made unions mroe hierarchical and less democratic, which is reflected in wildcat strikes in the 1960s.
What is eugenics?
It targeted those with physcial and mental illness as well as the urban working poor. Eugenicists claimed that these groups were doomed to pass their traits on to their heirs; poverty, laziness, and immoral behavior were supposedly personal qualities that could be inherited. Migrants and indigenous women were also the targets of sterilization. BC and Alberta both pass Sexual Sterilization Acts. Alberta created a eugenics board that could authorize sterilization (without consent post-1937)
What was Muir v. Alberta?
It was a successful case against the Alberta government in 1995-96 over the forced sterilizaiton of Leilani Muir.
What is prostitution?
Prior to 1867, the laws around prostitution were vagrency laws. Enforcement, however, was sporadic. After Confederation, provisions are implemented that focus on protecting women and children (this is comingled with the “white slave panic”) yet they continue to make up most convictions. sexuality is increasingly policed, and immigrants and communities of color are sterotyped as purveyors of sex work.
what was R v. Hutt?
Vagrency laws are updated and set in R V. Hutt. They are gender neutral and envolve commiting an act.
What was Canada v. Bedford?
The Charter triggers the Manitoba govenrment for a Reference on their prostitution laws. In Canada v. Bedford, the Supreme Court rules that the laws around prostitution were unconstitutional and as a result, the government introduces Bill C-36
3 sex workers applied to declare that the laws were unconstitutional because it violated the security of person
Government introduce Bill c-36 in 2014
Selling sex is legal but buy it is illegal
Generally follows the Nordic model
What was the Immigration Act, 1869?
It drew explicit connections between migrants and sickness, criminality, and poverty. Section 10 allowed the govnerment to deport a pauper migrants “from whence they came”. This came at a time where large scale migration of many non-british migrants who respond to the needs of capitol. This included IRish migrants, who dramatically changed the landscape and were a target of discrimination from the Orange Order - a group that defend British religion and superiority Saw anyone else as politically disloyal and socially less then
There were efforts to clamp down on the order but it never holds and they keep responding violently. In order to quell them, the irish was subjected to an array of legislation to limit their migraiton and control their movement.
What was the Dominion lands Act, 1872?
It creates a chomsteading policy that attracts southern and eastern European migrants. This was becuase as indigenous dispossession is facilitated, the state started looking to turn land into profit int he Prairies.
Government gave anyone who paid a $10 fee 3 years to work the land and build your house and then become allowed to buy more
Promoted by liberal government in 1886
Not opposed to other groups (Southern and Eastern Europeans)
Stall workers and farmers
§ Good survival rates
Or they could serve as cheap sources of labor
What was the Immigration Act, 1906?
It expanded the category of prohibited migrants, formalzied deportaitons, and assigned the government enhanced pwoers to make arbitrary judgements on admission. Southern and eastern Europeans were subject to racism and xenophobia that presneted them as dirty, inferior peasants.
Expanded the categories of prohibited migrants
Undesirable people
Mostly focused on their ethnicity and nationality
Any class of migrants any time
The industrial demand kept bringing the migrants in despite what was on the books
Canadians were shaken by the influx
Unbashly colonial
Algo supremacy
What are “enemy aliens”
During WWI, a public hysteria over “enemy aliens” targets loyal subjects form belligerent nations.
Public hysteria about the presents of migrates from where the war was
* Turks
* Bulgaria
Other Canadians and companies started the repression
What was the War Measures Act?
Through this act, Ukrainians and others are interned in 24 camps across the country. The act suspend civil liberties, mandates that they register with local police and check in on a schedule, restrictions on freedom of speech, movements, and liberties, allowed deportations, 1914, start rounding people up for Internment camps (Rooted in class and Politically active). These camps are brutal conditions; they were fed starvation diets, abused, and forced to work. They had to built their own prisons and were shockingly poor. In a larger sense, internment is a manifestation of settler colonialism, wherein a forced labor regime (dependent on exploited migrants) faciliates nation building projects
What was the Chinese Immigration Act?
Chinese migrants faced extreme vitriol from politicians, the public, and labourers. This act, which included a head tax, was the first piece of legislation in Canada’s history to exclude based on ethnic origin. This emboldened further discrimination; in 1907, anti-Chinese and anti-Japanese riots, led by the Asiatic Exclusion League of Canada, broke out across the Coutnry. It is amended in 1923 to ban Cinese migration to Canada.
The organized working class lobbied against Chinese people
They were excluded from most unions and employers paid them less
Head tax was collected for all Chinese immigrants when they moved
Emboldened further discrimination
Banned for ordinary people
* Those who were already there: register with police and cannot leave for 2 years
What was white women’s labour laws?
The 1912 Act to Prevent the Employment of Female Labour in Certain Capacities made it a criminal offence for Chinese men to employ white women. Which was upheld in Quong Wing v. R
What was Quong Wing v. R?
Quong Wing was a naturalized Canadian Citizen who ran a restaurant. He tried to hire 2 white women and was arrested and convicted. He fought the conviction because he said that the law was outside of the provinces powers because criminal law is a federal issue. Shouldn’t applied to citizens but since that is also a federal power, the province shouldn’t be.
SCC said the law was for protected the white women’s physical health.
What are Gentlemen’s agreement?
By the early 20th century, many Japanese Candians on the west coast had established themselves in fishing, farming, and in trade. As a result, they were widely discriminated against in day-to-day interactions as well as legislatively. In 1908, the government signs the gentlemen’s agreement, which restricted the number of Japanese migrants allowed to enter Canada each year, could not ban them from coming because of a trade treaty.
What was Japanese internment?
Japanese Canadians also experience internment during WWII. In WWII, they were forced to register as enemy alien No matter citizenship
They were displaced and forced out, their stuff sold, moved to housing centers (women and children) and internment camps (men). They were asked to either go back to Japan or move east, away from BC.
What was Reference Re: Persons of Japanese Race?
After WWII, efforts are made to stop the deporation of Japanese people forced during the war. After war, all requests to stop the deportation was denied. People were being sent to a country they had never been to.People protest that it is a crime against humanity
SCC said law was valid
Privy Court also upholds it
By 1947, the federal government revokes it
Saves some from deportation but not all
What are Continuous journey laws?
Restrictions were placed on South Asian migrants despite the practial challenged posed by intra-imperial relations. The continuous journey laws, in a round about way, halted South Asian migration. India was also a colony under the British so it was not easy to ban them. the laws made them have a continuous journey from South Asia to be let into Canada, which was not possible and it was a deliberate and racially motivated.
What was the Komagata Maru Incident?
A time where the continuous journey laws was contested. The migrants were held on the ship for 2 months trying to fight the rules before they turned them away saying they couldn’t do anything.
What was immigration act, 1910?
Black Canadians lived in state of paradox, caught between formal legal equality and depply entrenched inequality. Imperialist groups, boards of trade, and politicaians attempted to stop further Black migration. The act prhibited migrants declared “unsuited to the climate or requirements of Canada”. Equality is a fiction; Restrictions on where they could live/travel; Restrictions on work, school, and worship. Said they were “unsuitable for the climate”. Only 1,500 ish entered Canada from 1905-1912. the Criminal law was integral to shaping conceptions of race.
Who was Viola Desmond?
She refused to leave the segregated section of the Roseland Theatre in 1946. Race was not entranched in the law, so Desmond was charged with tax evasion. Because of the elgal nature of racial discrimination had not been settled in the law, her lawyer struggles to root the case in freedom of commerce or freedom from discrimination. Race was an unwritten aspect of the law. She serves as a catalyst for change regarding segregation, which is handled int he courts in Noble and Wolf v. Alley.
What was Noble and Wolf v. Alley?
Noble had land for over a decade and tried to sell it to Wolf, but the land had a clause that it could not be sold to a non-white person and Wolf was Jewish
They tried to appeal the clause but the people protested the removal even in 1948 post-war era
Ontario Supreme Court knocks down the covenant
Appellant Court reinstates the covenant
SCC struck down the covenant
Ontario said anything post-1950 could not have these restrictions
What was the Indian Act, 1876?
The legal dispossession of Indigenous Peoples is facilitated through several laws and acts in the 19th century. Colonial lawmakers are focused on proving that indigenous peoples could not claim collective ownership over their land and that their ideas of property were incompatible with british legal definitions. Ex. tried to bring down treaties and the number of people thought as Indigenous This continues post-confederation through the Indian Act which consolidates all previous regulations pertaining to Indigenous Peoples and comes to control nearly every aspect of their lives.
Indian act:
Aimed to prevent them from pursuing and asserting their culture
In every aspect of life, they ran into obstacles
They were not allowed to vote unless they gave up their status
Barred from professions
Women who married non-indigenous men lost their status, as did their children
Limited abilities to visit children
=Limited travels
Pass system: Made it possible to charge anyone who induces, insists, or stirs up indigenous people; Freedom of association
Signing of the number treaties
What were the Arctic Show trials?
They were designed to demonstrate Canada’s sovereignty in the North, counteract notions that the government was weak, and promote deterrence.
Canadian state quite eager to assert themselves over more and more of the state
The trial signals to the Innut that they could not keep just doing what they were doing after Alikoniak and Tatamigana were the first Inuit tried and executed for murder under Canadian law.
What was Section 141?
The state responds to political organizing by adding Section 141 to the indian act. This effectively barred indigenous peoples from meaningfully fighting for their rights through the legal system and was a barrier for further efforts. WWII marks a turning point: a special joint committee of the senate and the House of Commons is established to study the Indian Act, but their recommendations were ultimately ignored. IN 1951, Canada signs on to the UN declaration of Human rights which overturns Section 141 by allowing prime minister to create a bill of rights which grants enfranchisment to indigenous people and removes Section 141.
Political organizing focusing on getting more land claims
State responses by adding Section 141
Outlaws hiring lawyers from those who had status
After the war, indigenous people came back and were disillusioned because things were the same if not worse, even after fight for these ‘rights’ that Canada apparently stood for.
1946 - Special Joint Committee
For the first time, they consult indigenous groups when preparing their report
So they make really positive and helpful improvements
enfranchisement - voting
Treaty claims committee
Giving title of reserve lands to indigenous people
They don’t really do anything with their recommendations
What was the Hawthorn-Tremblay report?
It concluded that Canada’s indeigenous peoples needed to be treated as Citizens Plus. The government responds, in 1969, with the White Paper that calls for an end to status, the dismantling of the Indian Act, the conversion of reserve lands to private property, and integration. Indigenous activists respond with the Red paper and the government withdraws the White paper. The growth of American Indian Movement (AIM) style protests indicate a shift towards extra-legal protests.
Ongoing government policies made indigenous people disadvantaged
Outline new policy in the White Paper
* An end to status
* Dismantling of the Indian Act
* Conversion of reserve lands to private property
* Immediate integration
Government is patting themselves on the back for this but Indigenous activists were upset
* All it did was prove how out of touch it was
* Was just forced assimilation
* Respond with the Red paper
This moment pushed indigenous organization into more protests
* AIM style protests
What was the Oka Crisis?
Northwest of Mon.
1989 - a private golf course was approved on the edge of the Mohawk land
Their issues are ignored so they decide to block the construction
Mayor calls the police to get the blockade out
Police officer is killed
After 78 days, Mohawk steps down but in the hustle, a 14 year old girl gets stabbed in the chest and so the golf course is called off but no other land issues are resolved
It was a confrontation between Mohawk activists and the police which provokes new calls for evaluation of the relationship between indigenous peoples and the state. The Royal Commission on aborginal peoples, 1991 conlcued that a complete restructuring of the relationship was necessary. All recommendations involving constitutional changes were ignored; the government pursued only a few select changes.
Government didn’t want to make any constitutional changes so they only did really small things
Renders the Royal Commission a research effort but not a path to change
What was the Ipperwash Crisis?
During WWII, the government had the power to seize land for the war effort. It had taken Kettle Point 44 Reserve, turning it into an army training camp. The land was not returned after the war, and the Kettle Point band initatied a protest occupation known as the Ipperwash Crisis.
The government has these tremendous power during the war
Only has to make a case to themselves
Land was very important because it contains a burial site
Efforts to get it back did not work so they initiate a protest occupation
OPP are called in
What is the Calder Case?
It recognized that Aboriginal title had a place in Canadian law and that title was a legal right. It was one of the first cases were indigenous people were able to use the courts after 141.
They argue that title of their land was never taken away
Rights to their land had been ignored by the government
Case is important because it recognized that indigenous title was a legal right and had a place in Canadian law
Made them release a policy
What is R v. Drybones?
It brought down a provision of the Indian Act that racially discriminated against Indigenous Peoples.
Illegal for him to be intoxicated off reserve
He applies case to the territory court because the trial wasn’t fair as he did not speak English
Also for the bill of rights, because he was charged only because he was indigenous
SCC 6-3 said that Drybones is being punished because of his race under a law that had a different scope and penalty for different Canadians
If a section cannot be reasonably interpreted and applied, it cannot be in force
It pointed out the ways the law specifically targeted indigenous people
What is constitution express?
A movement to have their title and rights in the constitution
Gets two trains to Ottawa, then New York, and Europe. It built activism and led to Sandra Lovelace v. Canada
What was Sandra Lovelace v. Canada?
It leads to the amendment of the Indian Act and Bill C-31. Sandra Lovelace takes her case to the UN on gender discrimination. It leds to 1985, when the Indian Act is amended.
Bill c-31
A person’s marriage cannot effect a status
Women who had lost their status could regain it
Human rights committee found they were in breach of civil and human rights
Tied into section 35 of Charter
What was McIvor v. Canada?
Bill C-31 is challenged in this case, which leads to Bill C-3 that counters gender discrimination in the Indian Act.
Argued women with status did not have the same rights as men with status
Did not have the same ability to pass their status on to their children
Demonstrated real damage to the people
Led to bill c-3, which counter gender discrimination in the Indian Act
Lots of other cases follow and Feds now say that all gender based issues are fixed
What is R v. Van der Peet?
It creates the Van der Peet test, which narrowed the Sparrow test.
Was charged with illegally selling salmon caught for food or ceremony
Makes its way to SCC
Ruled that while she had the right to fish, she didn’t have the right to sell fish
Sets up the Van der Peet test, which narrows the Sparrow Test
It must be seen as integral to the indigenous group from BEFORE contact
What was R v. Sparrow?
It challenged Section 35 of the constitution for the first time, established ancestral rights to fish and the state’s duty to provide certain guarantees to indigenous peoples, and created the Sparrow Test.
He was charged for having a bigger net then he was supposed to
He argues that Section 35 established ancestral rights to fish and the state’s duty to provide certain guarantees to Indigenous Peoples
Case makes its way to SCC
Did they have an ancestral right to fish and has this been overturned by legislation?
Ruled they did have a right and it had not be overturned
Conviction was overturned
It sets up a code to interpret section 35
Sparrow Test
What was R v. Gladstone?
The Van der Peet test works in the favor of the Heiltsuk.
Charged with selling heron spawn
They claim they have a right to sell it, presented evidence that it was a significant way of life before contact
Judges agree that it passes the Van der Peet test
What is the Delgamuukw Case?
It helped define title, affirmed the validity of oral history, and clarified the government’s duty to consult.
File a land claim
Judge determines that they don’t have title because they lost it when BC joined confederation
SCC found that provinces did not have rights to get rid of title
Elders had oral tradition to the land and the court has to treat this as any other evidence
Had to prove these rights were from before contact and the oral history proves this
Defined title, confirmed their rights to the land, doesn’t outright solve the issue
What is R v. Marshall?
It referenced many of the aformentioned cases, and reaffirms Mik’maq treaty rights
Building on sparrow test
Caught and sold eels with an illegal net during the wrong time
SCC reverses the conviction because of the hunting and fishing rights that were promised during the 1760s
Confirms treaty rights for the Mik’maq
Issues a clarifying ruling
Yes there are these rights but theses rights aren’t unlimited, they can be limited because of public objectives, like conservations
What was R v. Gladue?
In this case, the Supreme Court attempted to alleviate the higher rate of incarceration for indigenous offenders and to implement restorative justice.
Stabs and kills her common law husband
Domestic violence
Under the criminal code, the court must consider all available sanctions other then incarcerations for indigenous people who live on reserve
Gets 3 years
SCC who is determining the criminal code
Indigenous offender could not be eliminated due to reserve
Intent of the section was to alleviate the higher rate of incarceration for Indigenous offenders and implement restorative justice
Judge could recommend restorative justice
Advised court to consider the indigenous background of offenders
Gladue reports outline mitigating factors
Gladue courts, tailored to indigenous offenders
What was Idle No More?
The laws continue to be passed that undermine Indigenous sovereignty. the Cree of Attawapiskat declared a state of emergency over inadequate housing and the presence of De-Berrs Diamonds on their land. Chief Thereas Spence protests Bill C-45 by going on a hunger strike. A moment, Idle No More emerges to draw attention to this issue.
Bill C-45 loosed legal restrictions, eliminated the need for a vote before companies use indigenous land
Idle No More
