What’s Happening in the Protests The farmers are peacefully protesting in Delhi. They have set makeshift homes in tractors, trailers and tents. It is apparent that they are not leaving without an answer, as the implications of this negotiation, or lack thereof, changes the face of the agriculture industry completely. There has been no destruction to property and instead protestors are keeping the city clean through picking up after themselves. They have also helped local homeless individuals through feeding them through the langar seva. During these protests, the worldwide community has gathered to feed these protestors at no cost and through volunteerism, a solid langar system. Volunteers have also set up schooling for the kids present in the Delhi protest, alongside handing out additional necessities such as blankets and shoes for the cold weather. International Impact Internationally, people of Indian descent are supporting people back home through rallies to show the implications of these bills. Some people are not sure what raising awareness and representation in country’s outside of India will do. The answer is quite simple. This protects and shows solidarity with our farmers back home. In no means are we even close to experiencing what the farmer’s back in Punjab and the other states are going through however, this is a way for us to tell them that we hear them and we are standing with them. By raising awareness, we are also urging country’s to cover the matter to ensure that there is a greater light shed on the issue. This is our way to ensure that we are doing what we can to protect our farmers. Evidence of this impact was also witnessed when India wanted to speak to Canada’s ambassador regarding the comments made by Prime Minister Justin Trudeau, where he stood up for the farmer’s right to peacefully protest. This act alone is evidence that India is being pressured by how its international reputation is being viewed. So, let’s not stay silent, if not for our sake, then for the sake of our farmers back home. How you can support the movement
Continue to educate yourself on the movement. Thanks to social media, we are able to hear the voices of the oppressed. With the Indian media shadow-banning and releasing biased reports suggesting ulterior motives for the protests, it’s up to us to ensure we set the record straight. The Punjabi music industry has also stepped up to make songs to educate individuals about the cause, by incorporating the history of these lands through their lyrics. There are also many organizations who are donating money to farmers during the protests to stay safe. An organization I personally support is Khalsa Aid and they have been accepting e-transfers and using the funds to take care and support the farmers who are sacrificing their lives by leaving their homes and marching to the protest in Delhi. Conclusion Suicide has been a sad and a more increasing reality for Punjab farmers, it has increased by 12 times over the last five years. Poor working conditions coupled with the lack of government support has devastated the livelihood of these farmers. These farmers are already struggling to take care of their lands with the lack of support and the unfair rates the government grants them for their crops. With little to no choice, the farmers take up large loans but without any way to pay them off, they get buried in debt which has been correlated to the increase in suicide rates for these farmers. Instead of the government creating laws to support them (as it currently exists in many Western nations) they have chosen to introduce bills that continue to threaten their well-being and only benefit corporate interests. With these laws, it is only a matter of time until the farmer's way of life in India worsens. Farmers feed the world and it’s time we feed them the respect and the support that they deserve. Because if there are no farmers, there’s no food. By: Karen Randhawa and Sukhdeep Kullar The headline may not catch the attention of those in developed nations. However, it is integral to the Indian economy. Nearly 60-70% of India’s economy is dedicated agriculture. The agriculture sector is composed of:
This is the largest and poorest segment due to the disparity of power. These laws eliminate the commission agent (arthiya) which has been integral to the farming economy, as the arthiya employs individuals who load and offload trucks, weigh the products, and find price rates. Each town has multiple arthiyas and individuals who work with them. This goes on to have a huge impact on the logistics industry since local truckers will be losing their livelihood. There was a “go green revolution in the 60s” where India asked Punjab and Haryana to feed the nation by planting wheat, so that they would no longer need to rely on foreign imports. The method for farming ruined the land, through various chemicals being introduced to the very same agricultural crops that feed the nation. Punjab and Haryana land specifically has sacrificed so much to feed India, but now that India needs them - everyone is turning their backs. Punjab’s economy is heavily agriculturally based, given that it is endowed with five rivers and fertile land. That being said, are Punjab’s interests always upheld at the national level through the saddening increase in farmer suicide rates over the years and the lack of governmental support for shopping local or fair pricing. As someone who practices the Sikh faith, I have been seeing a lot of the teachings of Sikhism in the hard work and determination of the farmers. In Sikhism, the first Guru, Sri Guru Nanak Dev Ji laid the principles as “Kirt Karo (an honest and earnest living), Naam Japo (pray) and Vand Chhako (share the fruits of your labour with others).” The first and third principles have deep roots in farming, as farming was seen as a practice of being self-sufficient and serving the community. This has also helped to develop the practice of langar through feeding individuals free meals, which can be seen in Gurudwaras across the world. During the pandemic, langar seva overseas for those who could not make ends meet, was witnessed around the world - to any person of the human race. By: Karen Randhawa and Sukhdeep Kullar As the movement continues to get strong, I thought it was a good idea to share it with the readers of LB. My ancestors were farmers, hence why this issue becomes personal. I wanted to try my best to do this issue justice with regards to explaining the bills in detail to those who may not be aware of why the “Farmers Protest” matters, and that too on this side of the world. It’s important to mention that you do not have to have any family connection to farmers, to acknowledge and understand the threat this bill poses to the livelihood of farmers, the very same people who continue to feed the world.
This series hopes to describe to our readers the largest protest in the world’s largest democracy, the significance for farming, and why it is a violation of rights. Laws are passed for the betterment of society. However, it is beneficial to contact and keep those individuals who are impacted in mind, in order to pass effective legislation. Yet common farmers had no part in the process of drafting and approving the legislation. The unity amid a pandemic and the resilience displayed by the farmers who left the comfort of their home to protest, is commendable to say the least. What Legislation is Being Opposed? In September 2020, amid a pandemic, the government passed 3 laws deregulating the agriculture sector. Bill #1 - Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 Eliminate all government subsidies for the farmers Currently, the government guarantees farmers a minimum support price for at least a few grain crops which range from 10 to 15 USD for 100 kilos of grain products. Currently, farmers trade their crops within a Mandi system, that allows them to trade in a market with minimum support pricing (MSP). Think of the Mandi as the middle man/ farmer’s market. With the passing of this bill, this law will eventually diminish within a year or two because of the lack of regulation that forces farmers to deal with the demands of big corporations. Going forward, the farmers will have to do contract farming with corporations on an agreed upon price and the corporation will dictate the specifications of products produced. Any excess product will not be purchased, and thus will go to waste. To explain it in comparable terms, it is the equivalent of eliminating a minimum wage or a price floor. The farmers now do not have any price stability and are at a greater risk of being taken advantage of. Bill #2 - The Farming Produce Trade and Commerce (Promotion and Facilitation) Bill If the farmer gets into a dispute with a private company, they cannot go to the courts. Under contract law, will these corporations choose to perform in good faith? In this situation, what are the repercussions if the corporations decide against that? There is a clear power imbalance that tips the scale in the favour of corporations. There is no legal recourse for 50-60% of India's population in cases where a big corporation takes part in exploitation. In the event a dispute occurs, an arbitration will happen but who will have the bargaining power? You guessed right - the corporation not the farmer. Such a bill gives the corporations even more power so that they continue winning every single time, leaving nothing up to the farmers. Bill #3 - The Essential Commodities (Amendment) Bill Any person or entity can hoard or store an unlimited quantity of any essential commodity or product. A large corporation has the capacity to use their financial resources to purchase and hoard agricultural products.. Unfortunately, farmers do not have the capital to invest in storage. This becomes an issue because these very same corporations will have the ability to buy crops in bulk at a lower price. This will undercut the market for these crops on which farmers gain their profits thus leaving them with significantly less to take home. By: Karen Randhawa and Sukhdeep Kullar September 18, 2020 marked the death of one of the most inspirational women that the world has known, Justice Ruth Bader Ginsburg (RBG).
Background RBG graduated from Cornell University with a Bachelor of Arts in Government in 1954. She married shortly afterwards to Martin D. Ginsburg. When the couple relocated, RBG worked for Social Security America. When RBG was pregnant with her first child, she was demoted. Later, she attended Harvard Law School graduate, as one of nine women in her class of over 500 men. However, she transferred to Columbia Law School to follow Martin’s career in New York City. After graduating near the top of her class, she had difficulty finding a job because of her gender. RBG was a research associate at Columbia University. While in these roles, she was inspired by Sweden’s system where there were more female law students (20-25%), and a female judge who was eight months pregnant was still working! This has been said to inspire her to make changes on American soil. She accepted her first professor role at Rutgers University School of Law where RBG was underpaid in comparison to her male counterparts. At this point in time, all of the US had fewer than 25 female professors. She was appointed to sit on the Supreme Court in 1993, making her the second female to obtain that position. Contributions to Society She was an advocate for gender equality and women’s rights. In 1970, she co-founded Women’s Rights Law Reporter which was the first law journal to focus solely on women’s rights. Her approach to gender equality was to adopt the view where equal means same, and not a special accommodation for either gender. At court, her compelling arguments have fuelled changes in society. This article only touches upon a few examples of her stance and the role she played. She began with Reed v Reed, a case challenging the principles of probate court which required men to be the administrator of estates even if there were qualified women to conduct the task. Her brief persuaded the court to unanimously strike down the law. She also stood up for men who faced gender discrimination, in her only Supreme Court loss, Kahn v Shevin. In 1974, Kahn was seeking a property tax exemption that was only available for widows. In 1976, RBG wrote an institutional brief in Craig v Boren to evaluate the constitutionality of sex-based laws. This was with regards to an Oklahoma law that allowed women to purchase alcohol at the age of 18, but men had to be 21 to purchase the same drinks. The stereotype was that men drive, women are usually passengers. The public policy rationale in this situation was unreasonable. In 2007, she was in the dissent for Gonzales v Cahart against her male colleagues on abortions in the second trimester. She pointed out that being a woman does not mean you necessarily would like to be a mother, and those are “ancient notions.” In recent years, she explained the institution of marriage in 2015 with regards to the changes in gay marriage laws. She noted that the state had gender norms, for men to be the breadwinners and women to engage in childrearing. The LGBT2QS+ community’s marriages break these gender roles, hence it was more difficult to get the state on board for this change. Conclusion We pay respects to the woman who has made these significant changes to the function of society, changes that we take for granted. It goes to show that the law is a powerful tool, understanding it and fighting for what you believe in goes a long way. To do justice to her memory, it is incumbent upon us to carry the torch. By: Karen Randhawa A case that is etched in my mind after the first year of law school is R v Stanley (2018), a case that I studied in property law. Here is a quick summary of the facts: Colten Boushie entered Stanley’s farm in his vehicle. After several exchanges, including Stanley’s son hitting the vehicle and cracking the windshields, warning shots fired in the air with the third hitting Boushie, killing him in the vehicle. Stanley did not invoke the defence of property or self-defence at trial. Instead, words like “trespass” and “home invasion” were used and emphasized throughout the defendant’s pleadings. He was charged for second degree murder but was later acquitted. Boushie was an indigenous man of the Cree Red Pheasant First Nations. In rural Saskatchewan, there is heightened racism towards the indigenous community, especially indigenous men. R v Stanley is a case that shows the need for improvement in the Canadian justice system. It highlights the issue of jury duty. By living in a multi-cultural urban city, I sometimes forget that juries have a high propensity of being diverse in terms of age, gender, and ethnicity with more openness towards the change of the law. Jurors do not leave their identity at the doorstep; they have their biases while sitting in on trial. At trial, the jury was composed of white individuals. With growing anti-Indigenous sentiments at the time of trial, the all-white jury likely possessed a biased perspective of the victim. Here, the onus was on the judge to alert the jury of the charge and the policy surrounding the situation. The justice system has once again failed and deprived indigenous people of their rights in Canada. For instance, at trial, the Crown did not intervene and allowed Boushie’s friends to be mistreated and belittled by accusations made by the defence counsel in R v Stanley. The trial should have focused on whether the third shot was an accident in order for Stanley to be acquitted for murder. Had defence of property been invoked, it would likely fail on the basis of disproportionality - murder in response to trespass hence making Stanley guilty Instead, the defendant based their arguments on ideas of trespassing, painting the young deceased as an “intruder” or “invader”. The improper application of law shows the many barriers to access to justice, ultimately explaining why the decision was not appealed. This case adds to the list of many injustices in the system. How can we claim that indigenous people are on the path towards justice when this case echoes what survivors of residential schools faced in their trials? This case shed light on the ethical issues within the practice of law. Lawyers should not take on a case if they will not be representing their clients effectively. The Farmers’ for Firearms claimed that the laws were insufficient, and people should have the right to defend their property in rural properties. Although it is understandable that the distance in rural areas for the police to cover is huge and response times might be slower than one would hope, that does not mean justice should be taken into the property owner’s hands. There should be limits to self help remedies. Even in a citizen’s arrest, property owners cannot exert undue force. There is a reason why we have laws and enforcers. This case exemplifies the power of lobbying and highlights how our legal system prioritizes property rights over our Charter rights to life, liberty, and security. Specifically, where this law is enacted, there is a history of disproportionate violence towards indigenous peoples. R v Gunning only justified to shoot in the case of self-defence. In R v Stanley, the evidence does not show if it was a matter of self defence or not which may allude to why it wasn’t argued as a defence at trial. Presuming that entry onto private property in rural Saskatchewan is trespass reverses the common law presumption that you can knock on your neighbour’s door rule. Although I understand the basis of the common law presumption, farmers have acres of land and do not want individuals on their property which is a legitimate policy concern. This is another example showing how the law has shifted from the idea that land is a communal resource to the perspective that land is a private commodity and exclusion is crucial to maintain these private interests. In a rural community, people may need each other more than ones in an urban setting. In the case of a flat tire, being lost and losing reception on their phone, or running out of food and being unable to go to the store due to the weather conditions or lack of gas. The indigenous community faces injustices, from the historical implications of treaties to the current forms of systemic racism. It debunks the myth of Canada being an accepting nation - we are truly inclusive from coast to coast. We need to address this issue as law students and lawyers as we are agents of change in the very legal system that shuts indigenous people out. By: Karen Randhawa We would like to thank our healthcare workers who have worked tirelessly to test, diagnose, and care for patients during this pandemic. This pandemic shaped the way our society looks, interacts and operates. While many are staying home, healthcare workers are risking their own safety for our wellbeing. But what about those individuals who choose not to abide by the rules of social distancing, wearing masks or isolating when returning from travel? The issue that arises is whether doctors have the right to refuse treatment to COVID patients that have been contributorily negligent. That is, patients who have voluntarily failed to follow public health guidelines. There are individuals who don’t believe that the pandemic is even real, whether it be because of the conspiracy theories, the lack of physical symptoms unlike the bubonic plague or the privilege of not knowing anyone who is battling with the disease. Some of these individuals engage in self-destructive habits. It can be seen through protests on the TTC where individuals have proclaimed they do not want their body to be regulated by the state and that masks hinders their freedom of expression. I ask these same individuals who went to school here, dress codes were also enforced – where was this energy when children weren’t allowed to wear spaghetti straps to class? Another example is Bill 21 in Quebec, banning religious symbols such as the hijab, niqab and turbans. The freedom of expression argument is an interesting take, is it more important than the right to life, liberty and security of the person? Wearing a mask has a utilitarian purpose, protecting individuals from spreading the virus to one another. If healthcare workers can wear it for hours a day, we can wear them for limited time periods, when leaving our homes to run errands or going to work. The way COVID-19 impacts individuals differ greatly based on their immunity levels. While some can overcome it without knowing they even had it, others require ventilators to breathe and have reduced lung capacity once treated. Since there is no one cure fits all approach, the spectrum of treatment varies in costs, treatment time and resources. Labour boards across Canada have outlined a four step test to justify refusal to work because of unsafe or dangerous conditions:
However, the situation is different for healthcare professionals given the nature of their work. Doctors have a mandate to help the ill. Healthcare professionals cannot dictate how patients live their lives, nor can they withhold treatment based on the disparity in standards of morality. Physicians are not in the position to determine when self-destructive behaviours warrant treatment. If this were the case, healthcare professionals could refuse cases related to smoking, eating disorders or sports injuries since it could be argued that is “self-destructive” behaviour. Doctors are expected to provide equal treatment for all, without their biased judgment and projected complications. The difference between those cases, and COVID-19 is the risk of contracting the virus. Healthcare professionals are putting themselves, their families and others in close proximity at a heightened risk of infection because it is unknown how this disease is spread. Regardless, the code of ethics highlights that the patients’ welfare be placed above their own self-interest. How can it be monitored if a patient was negligent? Would specific measures need to be in place to assess if they broke by-laws such as congregating with more than 10 individuals? Went shopping without a mask? Should it be that people need to surrender their health card if they break a law to say that they are willing to risk everything, their health included to live a lifestyle that cannot be supported at this moment in time? As a member country for the World Health Organization (“WHO”), Canada is committed to providing healthcare for every human being without distinction of race, religion, political belief, economic or social condition. Therefore, physicians in Canada owe a legal duty of care to patients and there is a limited right to refuse the work based on the four step test identified by the labour board. By: Karen Randhawa About the App Last week, Prime Minister (“PM”) Trudeau announced there will be a voluntary nationwide contact tracing app coming soon. According to the PM, this app will alert Canadians if they’ve come into contact with someone who tested positive for COVID-19. Ontario will be the first to get this app on July 2. The government emphasizes that it will be important to use during the potential second wave as the Canadian economy slowly enters reopening. How it works? People who test positive upload their results anonymously COVID Alert, the app, using a temporary code that is given to them by a healthcare provider. Using bluetooth technology, the phone records and stores all app users that have come into close contact. If an individual has tested positive, they anonymously upload their results to the app. The app would then notify all close-contacts and may direct them to self-isolate for up to 14 days. The information that is uploaded will then be shared with other users to see if they have been near someone who has tested positive. How anonymous is anonymous? Although the app uses bluetooth technology, privacy remains a concern. Could uses be tracked using bluetooth identifiers? App Specifics from the Government The government considers this app to be low maintenance, as it runs in the background, uses bluetooth, no geotagging or location services of any sort. The federal Privacy Commissioner worked on the app, in an effort to connect cases and better document the spread of the virus. The intellectual property rights for the app will be granted to the federal government. Although healthcare falls within provincial jurisdiction, the pandemic is a national emergency and concern which has led to the federal government playing an increasing role in healthcare. The development and ownership of the app are the federal government’s intellectual property. What are Tech Companies Doing about this? Google and Apple have been limited to creating one COVID tracking app per country. I find this to be helpful as information is synced on one platform for all users in that nation. This provides streamlining the information. There are issues regarding syncing app information with that which exists through Alberta’s pre-existing app. Although this restriction creates a limited marketplace which forces individuals to use one app, I would consider this app to be synonymous with Amber Alerts on our phones, as opposed to multiple GPS app options. What are other nations doing? Many countries across the globe introduced COVID-19 tracking apps to their population post March 2020. While in some countries these apps are voluntary to download (Australia, Japan, and Germany), other countries (India, South Korea) mandated their citizens to download the app. The goal of the app, reiterated by governments, is to track those who have the virus and where they’ve been to caution close contacts and the general public from visiting hotspots. Is this democratic? These are questions that come to mind. The world we live in today people already voluntarily gives out a lot of personal information through cookies, accepting terms and agreements without reading them, and through the usage of social media to store our ideas into the virtual space forever. What makes this app different? Well we’re downloading something onto our device, what would it have access to? In Alberta, the COVID app, ABTrace Together, uses bluetooth as opposed to wifi, and it doesn’t require a phone number or name to be associated with the mobile phone itself. It differs from Australia where it is mandatory to provide these personal characteristics (but the information is said to be stored for only 21 days). In Italy, the app deletes information by the end of the year while keeping it anonymous. The right to delete the data when this pandemic is over, is an important factor to consider. There is a concern of how effectively the centralized system can dispose of personal data, and if users can verify that it has been done. Can an argument be made that this is for the public good? I would agree that this app would be important in knowing where an individual who contracted COVID has visited to ensure that others get tested. But would this be a way to outcast individuals from society and where is this information going to be stored? Can it be used to prejudice individuals from opportunities (e.g. access to medical information for employers, which is something that is currently still protected in Ontario that we aren’t required to share our medical history, decreasing a ground that we cannot be discriminated against). At the start of this pandemic, we have seen that Asian-Canadians experienced more racism. This app is a double edged sword - while it provides the benefit of protecting public health, it can also alienate & amplify stereotypes. Data in this society is crucial. Especially with big data analytics being on the rise. Companies profit from selling information about consumer preferences. So where does this app come in? Data has no boundaries, so can this app be considered domestic or can the data be stored across the world? The threat of IP theft continues as the cyber spy agency warns that foreigners could try to steal intellectual property from Canadians as being guise as COVID-19 relief impacts. My Opinion The fact that this app is voluntary will create a disparity in the results. Evidently, governments should not have authority over what the population should download on their phones. Pierre Trudeau’s comment “There's no place for the state in the bedrooms of the nation” could be updated to say that the state has no place in the cellphones of individuals. However, with the implementation of a voluntary contact tracing app, there needs to be significant uptake for the data to be representative and effective. I do think not everyone who tests positive will be uploading their results in fear that the information will come back to haunt them later in life. I also am skeptical to see how many people will download the app, will it be one person per household or everyone in it? My guess is that there will be very limited usage but that is just an observation based on the individuals I’ve spoken to. This app seems like it could disenfranchise individuals through the government having control over health related data via technology. Primarily, my concern is with data storage. These apps are being developed by Apple and Google. Although it is voluntary, low maintenance and requires little battery, there is a lot on the line. Storing information as such on a grand scale is different from the Health apps that people usually use to track their fitness. This app is one that relates to illness and I don’t know if our world can handle open data about one’s health without having all the answers. By: Karen Randhawa We’ve decided to halt our COVID-19 series to reinforce something that is of international importance, Black Lives Matter. Amidst a global pandemic, it is especially heartbreaking to see the recent events that have transpired in Minneapolis. Unfortunately, this is not an isolated event. Anti-Black racism is deeply ingrained in our social structures.
On May 25, 2020, Derek Chauvin (former police officer in Minneapolis) used knee restraint on George Floyd’s neck, contrary to protocol, resulting in Floyd dying. His neck was pressed for approximately 8 minutes, which can be seen in a bystander’s video surfacing the internet. While bystanders urged the officer to stop, the other police officers on site failed to intervene. Why did the police restrain him? Floyd was at a grocery store when an employee called the police accusing him of passing a counterfeit $20 bill. Upon the police’s arrival, Floyd, who was unarmed, was quickly brought to the ground and restrained. According to the Minneapolis police department, Floyd resisted arrest, but as seen in the bystander’s video, Floyd promptly surrendered. Hence, he was not posing a threat that would warrant the use of violent restraints and force from the police officers. To put things into perspective, America is seen to be a country of opportunities, a superpower, a democratic leader of the “global north.” However, this incident shows that the system is deeply flawed in the nation, where the allegation of a counterfeit bill at a supermarket has resulted in a man losing his life. What’s the current situation with the police officers? Since the death of Floyd, the four responding officers, including Chauvin have been fired. The FBI is currently investigating whether Floyd was deprived of his civil rights. Chauvin has been charged with third degree murder and second degree manslaughter, with bail being set at $500,000. This has left the community extremely outraged. Many believe that Chauvin’s actions constitute first degree murder. The current investigation is taking a deeper look into the obligations of police officers in such situations. The executive director of the Police Executive Research Forum, Chuck Wexler, stated that “no police academy teaches a police officer to use their knee to put it on their [the person that they are arresting] neck… because that can impact their breathing and their carotid artery [a crucial vessel that supplies blood to the brain].” In addition, police officers are taught to get their suspect off the ground as soon as possible, to sit or stand to ensure that the suspect could breathe. The Aftermath His last words - “I can’t breathe” - have rung across the world. When this video surfaced on the internet, thousands of demonstrators took to the streets in cities across America. Curfews are being enforced, people are being arrested. Enraged by the persistent disregard of Black lives, protesters have turned to looting to make their message heard. The Problem The issue cannot be summed up in a mere post or two. It is sadly not the first time that police officers have used improper procedures when arresting Black people. These protests are being fuelled by the need for change. Ahmaud Arbery was shot in his neighbourhood while he was jogging on May 5. Since there was video footage of the shooting, Gregory and Travis McMichael were charged for aggravated assault and felony murder. Breonna Taylor was shot seven times in her apartment when police officers came to search her apartment. This spurred the call for action that officers need to wear body cameras while conducting searches to document the events that take place. All three incidents involve the death of an African American, and highlight the unrelenting police brutality against Black individuals. The public outcry has escalated internationally, asserting the need for change. International Implications For those who are reading this outside of the US, it’s not just an American issue, it’s international. Unfortunately, racism is deep-seated in the history of countries around the world. In Canada, we like to live under the misplaced notion that racism, particularly Anti-Black racism, does not exist. However, racism plagues Canadian economic, political and social structures. Black people are systematically discriminated at essentially every touch point, whether it be policing, employment or being subject to comments in social settings. The current events show that it is time we change that and recognize that race is a social construct. By: Karen Randhawa Last week, the Ontario government announced that schools will not be reopening for the school year. Students enrolled in summer school are taking courses online. Universities have sent emails stating that it is likely that the fall semester will be online with smaller classes/labs to be held in person. In light of these updates, two major issues affecting university students have surfaced:
The Res Life University and college residences are not protected by rental rules under the Residential Tenancies Act. At this time, universities are developing a residence strategy for Fall 2020. Universities across the country have done a phenomenal job by posting on their respective pages the housing responses to COVID-19, which are regularly updated. These pages provide information on how to apply for a refund for those who evacuated their residence, and information about summer accommodations for people who are unable to return home. The FAQ pages state that students have two options: either they can receive a refund of their residence deposit by July 15, or have their deposit forwarded to the Winter term. Only single rooms will be open for residence, and common areas will be closed due to the need to practice social distancing. Keeping these changes in mind, is it fair to charge students the same amount of money for residence, given that many facilities will be inaccessible in the new school year? Off Campus Accommodation Ontario published rental changes during COVID-19. The government acknowledges that not everyone can afford to pay their rent, and thus did not create a blanket rule for all to follow. The application of the rules depends on the situation and circumstances. The province-wide strategy encourages landlords and tenants to reach fair arrangements that suit the needs of both parties during these difficult times. The website states “tenants who can pay their rent must do so, to the best of their abilities.” But what about students? Students who may not be moving back this fall but have already signed a lease? This creates room for issues. While some may have been able to sublease their place over the summer, it is difficult to say whether they will be able to do the same for the fall term. The rental scheme includes guidelines for landlords facing financial burdens. Landlords are given the option to discuss with their municipality about assistance with property taxes and municipal service fees. Likewise, banks are willing to cooperate with landlords to defer mortgage payments during this time. In British Columbia, a rental supplemental program was introduced that provides $500/month to low and moderate-income renters experiencing loss of income and hardship due to COVID-19. However, this amount would not suffice in Ontario where the average rent is $1273. In Toronto, there is the Toronto Rent Bank which provides no interest loans to low income renters who face evictions. However, this relief is for two months even though the pandemic is expected to impact the fall term which would mean upwards of six months. Contractual Implications Since April 30, 2018, leases are written in a standard template. This lease is written in simple language and is inclusive of the rental amount, due date, amenities covered in the rent, and the rules about the rental unit. Renter and landlord rights and responsibilities are explained. Since a lease is a contract, it is subject to the laws relating to contracts. Thus, is there a possibility that these leases can end because of COVID-19? Cessation Some leases have cessation clauses, where the tenant has duties and cannot simply walk away from the lease. Extinguishing the lease would create bad blood between the landlord and the long term tenants. Leaving the landlord out to dry and moving the stuff back? Not the most efficient way. Force Majeure A force majeure provision is either an act of God or a defined provision which such as a fire, flood, war or insurrection. There is no common law doctrine of force majeure. In Canada, a force majeure clause can only be relied upon if it exists strictly in the contract. Most leases don’t have a force majeure provision which would allow parties to terminate the lease or other obligations without a penalty. If such a clause exists, university students could most likely rely on this, since governments have imposed travel bans and quarantines. However, by the fall semester most of the economy is expected to open up and stay-at-home orders are likely going to be loosened, which may weaken tenant claims relying on the force majeure clauses. In order for a force majeure provision to be invoked, the destruction needs to be permanent in nature. Other factors besides Force Majeure could be:
If force majeure cannot be established, tenants may seek relief through the doctrine of frustration. Frustration In order to argue a contract has been frustrated, the tenant needs to argue that there was an unforeseen event which is:
There is a high bar to pass according to the test set out for frustration in Davis Contractors v Fareham. The party claiming frustration must show that the nature of the contract has drastically changed and that it would be unjust to hold the parties to the contract. COVID-19 has led to unprecedented circumstances. The government made orders under state of emergency for non-essential businesses, thus impacting wages to pay rent. There is yet to be case law that shows the impact of a pandemic on a frustration argument. In Canary Wharf v EMA, it was decided that Brexit did not frustrate the terms of the lease and rent needed to be paid. In Australia, it is difficult to request rent reduction or abatement, as frustration is not easily arguable in the context of a lease. In India, even if individuals are unable to use the premises during a period of closure, they will be bound to pay rent. Delhi High Court released a decision saying “temporary non-use won’t make rental lease void.” If the contract is found to be frustrated, the Frustrated Contracts Act applies:
Unconscionability Is it unconscionable to ask for rent when the property is not being enjoyed? If the landlords are deferring mortgage payments, but still charging rent, how is this fair? There is no mechanism in place to ensure that landlords who are asking for these deferrals are in fact providing relief to their tenants. This situation further highlights the power imbalances between landlord and tenants. COVID-19 is an unprecedented situation, which has impacted everyone on the planet. The level of uncertainty that university students face when it comes to their future is at an all-time high, arguably worse than the 2008 recession. It is a matter of health and safety. Not moving into private accommodation near the university is a way to promote social distancing. However, if students are required to pay their monthly rent, this adds to the pressure of meeting ends by being responsible for rent for unoccupied/ unused land. By: Karen Randhawa The rule of law indoctrinates that “everyone is equal before and under the law.” At a normative level, it’s seen as a great idea to foster. However, the law in practice deviates from this central principle. During a pandemic, existing inequalities in our societies are amplified at micro and macro levels. At the micro level, low income individuals are more susceptible to contracting the virus because of their status as “essential” workers, lack of access to protective wear, inability to afford to socially distance and relatively weaker immune systems. These micro inequalities are on a global level, whereby wealthier nations with stronger healthcare systems fare better than poorer nations. This pandemic has shed light on the extent of inequality in today’s world - there are those who are socially distancing in their vacation homes and those who do not even have a place to call home. "Go Home, and Stay Home"Social distance in your homes -- but what if you don’t have a home? A study conducted by scholar and colleagues showed that two effective means of containing the spread of COVID are to practice social distancing and to engage in contact tracing, the process of monitoring the interactions of a positive case. But how can a homeless person socially distance when they do not have a home? How can a homeless person meet their basic needs when access to public washrooms, recreational centre showers and non-profits providing services (i.e. clean clothes) is restricted? About 35,000 Canadians experience homelessness on a given night, and 235,000 Canadians are homeless in a year. Over 50,000 Canadians experience “hidden homelessness” as they sleep in cars, couch surf, or use precarious housing. Growing up in the 21st century, we have taken homelessness as a given. However, before the 1980s, chronic homelessness was not acknowledged as a serious national concern. Homelessness as we know it today emerged largely owing to the dismantling of social protections starting in the mid-1980s, as Canada embraced neoliberalism and its accompanying fiscal austerity measures. Homelessness is in part driven by modern conceptions of property. Legally, property is a relationship between individuals and chattels with varying rights and bundles. However, in the current context, property has become more of a thing rather than a relationship. This sort of thinking reinforces unequal power dynamics within society as those who have the upper hand, economically and politically, amass more property than marginalized populations. The power dynamics are further exacerbated by the flood of investment in the retail market by investors, turning potential housing units into investment properties and short-term rentals. Section 25 of the Universal Declaration of Human Rights states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including… housing.” The Charter does not recognize a formal right to housing and litigants have yet to be successful in raising a claim on section 7 and/or 15 grounds. The Right to Housing case (Tanudjaja v Canada Attorney General), while not successful in their Charter challenge, did prompt the establishment of the National Housing Strategy - a commendable step in reducing chronic homelessness. Canada's ResponseDuring a pandemic, are we really doing the most for those who have the least? Affordable housing is scarce and homeless shelters frankly do not have adequate resources to meet demand. Shelters are mandated by protection protocols to ensure that those who occupy them are safe. Thus, decreasing the capacity or resources to house the homeless population. Further, the recent release of inmates, in an effort to prevent overcrowding in jails, can be problematic. These newly released individuals may not have access to stable housing, inhibiting their ability to practice social distancing. The federal of government has been formidably proactive with their homelessness strategy during COVID. In April, the government dedicated $157.5 million to address the needs of Canadians experiencing homelessness through the Reaching Home program. The City of Toronto has leased/ bought 12 private hotels throughout the city, where homeless individuals, who have contracted COVID, are being housed during their recovery. Currently, there are 200 beds available. There are plans to increase the scale of the initiative, by investing in another 15 properties. This unique collaboration amongst the city, NGOs (Doctors without Borders, The Neighbourhood Group) and the University Health Network not only ensures that homeless patients receive medical treatment, but that they also have a home to go to post-recovery. There are an estimated 3,100 tents at Cabot Square. The city offered 222 rooms at the beginning of the pandemic, whilst Toronto had moved more than 1000 people by the beginning of April. The BC government is distributing 3,500 smartphones which can be connected to Wi-Fi and have a pre-loaded $10 7-Eleven data card. These smartphones are aimed at helping coordinate the distribution of bars of soap, food and hygiene supplies, along with COVID-19 symptoms and testing. A tent city encampment at Vancouver’s Oppenheimer Park was cleared up earlier this month. According to authorities, everyone was offered indoor shelter. However, some campers decided to set up camp in a parking lot owned by the Port of Vancouver, which is next to CRAB park. There are more than three dozen people at this park and 20 tents at this point in time. In response, the Port of Vancouver may be taking legal action to remove these tents, on the count of trespassing. Among other factors, whether they have a legal basis for doing so hinges on determining if these tents are prohibiting the general public from using the public property - a question that is further complicated by public parks being closed during COVID. BC Housing is working with hotels as well to relocate individuals facing homelessness for temporary shelters. Vancouver has eight hotels at this time, along with two emergency response centres in recreational facilities. Similar to Toronto, there are outreach workers in place to ensure that these individuals receive support through addiction, mental health and primary care services. Other cities across the nation are pooling in resources. For example:
What about Post COVID-19?The current cost of a monthly suite is $1,200-$1,400. The median annual income for a single person in Canada is $33,000. Based on these figures, cost of a suite at these hotels would result in half of the wages (assuming income tax is taken into account when calculating this average wage.) When taking into account other living expenses, it is clear that the status quo is an unsustainable reality for many. With rent unaffordable and ownership, a far-fetched dream, the question remains as to what is going to happen to Canada’s ever-growing homeless population once the government stops its emergency funding. By: Karen Randhawa
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