Brexit through the lens of Public International Law When the United Kingdom (“UK”) held a referendum in 2016, an underwhelming 52% of voters supported the Leave campaign as opposed to the Remain campaign. Before delving into the consequences on trade, it is important to unpack the significance of a referendum, through the lens of international law. Referendums serve as the democratic tool by which a population exercises its right to self-determination. Typically, self-determination is invoked by minority communities who hope to secede from a parent state. The right to self-determination arose during the decolonization era, with the emergence of sovereign independent states. It allowed dominated and exploited peoples to assert their right to freely determine their political status and freely pursue their economic, social and cultural development. Ultimately, the right to self-determination was codified in Article 1(2) of the Charter of the United Nations (“UN”), which states that the UN must “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples ….” In modern international jurisprudence, self-determination can be classified into two categories—internal and external self-determination. In fact, this distinction was established by the Supreme Court of Canada (“SCC '') in Re Secession of Quebec. The SCC was to determine whether there was a right to self-determination under international law that would give the government of Quebec the right to affect the secession of Quebec from Canada unilaterally. The Court established that the right of self-determination is fulfilled through internal self-determination, where a population is free to pursue political, economic and social development within the framework of an existing state. Conversely, a right to external self-determination arises in only the most extreme of cases, where a community is blocked from the meaningful exercise of its right of self-determination internally and is entitled, as a last resort, to exercise secession. Although Brexit does not involve a secession from a sovereign state, but rather a political and economic union, self-determination was the driving force behind the Leave campaign. A survey of 7000 representative British voters revealed that Leave voters regard the UK taking control of its laws as the most important priority for Britain in the coming years, followed by the ability for the UK to enter into its own trade deals.[1] Immigration and cultural integration issues were amongst several other factors considered by Leave voters. While the circumstances to not resemble a classic case of unilateral secession, Brexit is in essence an assertion of sovereignty and the right of self-determination for the British population. The Leave campaign was successful, in part at least, because it framed Brexit as a step toward taking control of the UK’s political, economic and social spheres. It fostered the idea that the “EU holds Britain back” from its potential as a global power.[2] Brexit and Economic Impacts Brexit will redraw the relationship between the UK and the EU. It will redefine the key sectors, from trade to security and data. Given that the EU was formed in an attempt to ease flows of goods and services between members, the most notorious consequence of the deal will be on trade. The UK formally split from the EU in January 2020, however, agreed to refrain from giving the deal effect until January 2021. In an attempt to preserve its trading relations with the EU, the UK reached a post-Brexit trading agreement with the EU in December 2020. In brief, the agreement is akin to free trade agreements, whereby the two parties agreed to refrain from imposing tariffs or quotas on goods between the UK and the EU as of January 2021. The agreement is based transparency, non-discrimination and economic cooperation, characteristic in free trade agreements, from CUSMA to CETA. It contains national treatment and most-favoured clauses (“MFN”) which ensures that both parties receive fair and equitable treatment. Most importantly, as a separate entity from the EU, the UK is able to exercise any regulatory requirements it sees fit. This includes subsidies, technical barriers to trade and sanitary and phytosanitary measures. According to the UK-EU trade agreement, each party is free to institute “its own independent system of subsidy control and that neither Party is bound to follow the rules of the other.” The use of subsidies is disciplined by the WTO’s General Agreement on Tariffs and Trade (GATT). Each party is also allowed to enact regulatory barriers to trade, in the way most appropriate for the domestic market. These barriers are regulated by the WTO’s Technical Barriers to Trade (TBT) Agreement, which provides for limited circumstances whereby WTO members may impose technical barriers. An infamous example of a technical barrier is the labelling requirements on tobacco products. Plain packaging laws have been subject to WTO disputes such as the dispute brought by Indonesia against Australia’s packaging requirements for tobacco products. This has already been used by the UK to impose restrictions on uncooked meats imported from the EU.[3] This new regulatory space, allows the UK to tailor is approach to trade in a manner that meets its population’s needs. Notwithstanding the newly founded freedoms in trade, many scholars continue to assert that the agreements is bound to “leave the country poorer”, at a time when it faces an unemployment crisis and a severe economic recession.[4] While the agreement confer several benefits and rights to each party, it is not a reproduction of the EU. The deal is criticized for its lack of protection of over the UK’s service industry, which makes up the majority of the UK’s domestic economy. Opposition leader Keir Starmer claimed that the deal was “thin” in regard to the trade of services in key sectors, such as the finance industry.[5] Moreover, with greater regulatory freedom, it is said the EU has obtained “the ability to use regulatory structures to cherry pick among the sectors where the UK had previously enjoyed advantages in the trading relationship.”[6] Lastly, Britain’s new immigration regime is aimed at reducing the number of unskilled workers that enter into the UK. However, migrants are vital to the domestic agricultural sector now more than ever, given that the UK’s trading relations are still at its infancy. So while the Brexit can be said to be exercise of self-determination, on the economic plane, the UK’s divorce from the EU will likely have detrimental impacts on its economic growth. By: Lucinda Chitapain For more:
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An Oldie but a Goodie When I reflect on my first year of law school, one particular case stands out. Not only because it was a landmark case that reshaped our understanding of contract law, but it also continues to be relevant in the world of advertising and marketing. The Carlill v Carbolic Smoke Ball Co decision was delivered by the Queen’s Bench in 1892. The facts are straightforward. In 1891, Carlill, the plaintiff, saw an advertisement in a local newspaper, published by the defendant, the Carbolic Smoke Ball Company. As you may know, during the late 1880s, the influenza epidemic had claimed the lives of many. The defendant’s claimed that their ‘smoke ball’ could cure the flu. They were so sure of their product that their advertisements promised a 100€ reward to any person that contacts the influenza or any cold, after using the Carbolic Smoke Ball according to the printed directions supplied with each ball. The advertisement went as far as stating that the company deposited 1000€ to a bank to demonstrate their sincerity in the matter. Upon seeing the advertisement, the plaintiff purchased one of the balls and used it as instructed (3 times a day for nearly two months). Unfortunately, she contracted the flu. She claimed her 100€ reward from the defendant but was completely ignored. She turned to the court, arguing that she was entitled to the reward. The legal issues boiled down to whether the defendant’s advertised reward was a ‘mere puff’, used to attract customers. Or whether there was a contract formed and eventually breached by the defendant when they refused to award the plaintiff the 100€. Essentially, Carbolic argued that the advertisement was only an attempt to promote and sell their products. They claimed that it would be outrageous of any customer to believe that the company truly meant to pay up. As a result, the court makes a distinction between two kinds of advertisements. First, vague advertisements, using ambiguous language about rewards, are to be considered mere puffs, which carry no enforceability. By contract, where an advertisement uses specific language, it is construed to be an offer. The latter applies here. Not only did the defendant’s ad stipulate that there is a 100€, they also went on to note that there was a deposit worth 1000€ made to the bank. As such, the ad was deemed to be a unilateral offer, which did not require performance but when the performance was completed by the plaintiff, the offer was accepted. A contract was then formed, and it is left to the defendant to perform. Carbolic shews, by the nature and language of the ad, that they do not expect to be notified of performance. Why is this important? While most marketing strategies can be reduced to a mere hoax or ‘puff’, advertising that uses precise and specific language can legally bind the offeror to live up to their promises. Essentially this decision has created a new binding relationship between companies and consumers, holding the companies responsible for the promises they choose to advertise to the world. Unlike typical bilateral contracts, acceptance of unilateral offers does not have to be communicated. In general, a contract is formed once there is intention to create a legal relationship, then an offer, a communicated acceptance and then performance of the contract in exchange for consideration. In a unilateral contract, however, the contract is accepted when the offeree performs the conditions of the contract. Notice of acceptance does not have to precede performance of the offer in unilateral contracts. The offeror gets notice of acceptance at the same time they get notice of performance of conditions. By Lucinda Chitapain As we continue to reflect on how to put an end to anti-Black and Indigenous racism, we must examine our judicial system and determine the reasons it has failed to serve all Canadians equally. Most recently, Chief Justice Richard Wagner explained that the lack of diversity in the justice system is partly to blame. Although Canada’s judiciary has become more diverse, as a growing number of women, visible minorities and Indigenous people are issued a license, there is still a limited number of racialized judges across Canada. In fact, there has yet to be an Indigenous Supreme Court of Canada (SCC) judge. A note on the appointment process The procedure behind judicial appointments has often been kept from the public. It was not until 2016, that the Liberal government commenced an initiative to diversify Canada’s judiciary by rendering the selection process more transparent. The nine SCC judges are appointed by the Governor in Council pursuant to s. 4(2) of the Supreme Court Act (SCA). Requirements for the appointment process has been somewhat formalized to try and promote transparency. In a nutshell, an independent and nonpartisan advisory committee provides the Prime Minister (PM) and the Minister of Justice a short list of potential candidates, who then select a nominee. The nominee is then subjected to a hearing before a Parliamentary committee. Since the SCA is silent on the inner workings of the process, this approach was developed on an ad hoc basis in response to public concerns about lack of transparency. This process has not always been strictly followed. Admittedly, the transition from the traditional processes (whereby the PM appoints from a list of potential candidates, free of public scrutiny) to a public process (whereby impartial committees partake in selecting the candidate) shows signs of progress. However, mere transparency is not sufficient. The process must also be rigorous and consistent. Of the nine judges, the SCA requires that at least three shall be appointed from Quebec. Generally, the Governor in Council appoints three from Ontario, two from the Western provinces or Northern Canada and one from the Atlantic provinces. Apart from these general guidelines, the selection process is truly at the hands of the executive. This may sometimes create a tension between the need to uphold an independent judiciary system and government discretion. With little formalized requirements, the SCC selection process has rarely resulted in the appointment of racialized judges or led to the appointment of an Indigenous judge. Why is diversity important? There is an inherent contradiction when arguing for diversity on the SCC. If judges ought to remain unbiased, why should diversity matter? While all judges should aim to be impartial when hearing a case, it is evident that judicial judgement is not void of personal biases and prejudice. These underlying biases were formally recognized by the SCC in R v RDS (1997). In brief, the case concerned the arrest of a black 15-year-old who had allegedly interfered with the arrest of another youth. The police officer and the accused were the only two witnesses present, and their accounts differ greatly. In deciding that the accused should be acquitted, the judge at first instance took judicial notice that police officers often overreact, especially when dealing with non-white groups. The Crown appealed the decision, arguing that the judgment was biased, and the Nova Scotia Court of Appeal ordered a new trial. The accused appealed to the SCC. The SCC allowed the accused’s appeal and restored the acquittals, finding that there was not reasonable apprehension of bias. The dissent explained that such remarks were inappropriate in all circumstances and should never contribute to a judicial decision. The majority affirmed that courts should be held to the highest standards of impartiality. Decisions must be based on facts in evidence, not biased generalizations. However, the burden of proof for a judge to be found to have acted with reasonable apprehension of bias is high. It is particularly important to note the judgement delivered by four Justices (La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ). Unlike the rest of the majority who showed concern over the judge’s comments, these judges recognize that judges, while they must strive for impartiality, can never be neutral and purely objective. Instead, different life experiences and backgrounds appropriately assist judges in their decision-making process, so long as those experiences are relevant and not based on inappropriate stereotypes. It follows, therefore, that a diverse SCC bench would advance the court’s ability to develop judgements and resolutions tailored to the specificity of each case. The SCC must work toward improving its selection process and encouraging the appointment of racialized judges that would better reflect the multicultural Canadian population, given that judges of diverse backgrounds apply and interpret the law differently. For instance, Aboriginal communities have often voiced their concerns over the criminal justice system, finding criminal procedures alienating and ineffective in seeking appropriate redress. To have an Indigenous SCC Justice would mean consideration specific to Aboriginal traditional and cultural values. It is merely one way to help fix a system that presents an unending course of barriers and obstacles. This would truly allow our justice system to reflect the view of all Canadians. By Lucinda Chitapain The tragic death of George Floyd has sparked many questions around how our social infrastructure can better destroy systemic barriers that have long excluded Indigenous and Black communities. While many solutions hinge on restructuring our policing regime, lawyers and judges alike have a significant responsibility in improving the treatment of Black and Indigenous offenders in our criminal justice system. Disproportionate incarceration rates remain a well-documented and distressing reality for visible minorities. Even though Indigenous people only represent 4.9% of the total Canadian population, they made up nearly 24% of the federal offender population in 2018. Likewise, only 3.5% of the Canadian population identify as Black, but data reveals that 7.3% of the federal offender population is Black. [1] Since media outlets have greatly emphasized the happenings in the US, it is easy to deny that systemic racism persists on Canadian soil. Ontario Premier Doug Ford recently stated Canada does not have the same ‘systemic, deeps roots’ of racism as the United States. Although he has since detracted from this statement, it is important to recognize that Canada, like its neighbour down south, was built on ideologies of white supremacy. [2] From enslaving nearly 3,000 people of African ancestry between 1628-1800s to instituting residential schools to take 150,000 First nations, Inuit and Métis children from their families, Canada is no different than the US. [3] Systemic racism is a complex and multidimensional issue that affects the everyday life of people of colour. As such, our governments must develop tailored solutions aimed at demolishing racial barriers in the economic, political and social spheres. Reforms to the criminal justice system is only the tip of the iceberg. The Impact of Gladue Reports on Indigenous Offenders R v Gladue (1999) was a milestone decision that reinforced the restorative principles of sentencing codified under s.718.2 of the Criminal Code (CC). In a nutshell, the accused, an aboriginal woman, pled guilty to manslaughter for the killing of her common law husband, following a violent dispute. The judge sentenced the accused to three years imprisonment, concluding that the offence very serious. The accused appealed on the grounds that the sentence was inappropriate. Both the British Columbia Court of Appeal and the Supreme Court (SCC) dismissed the appeal. The issue in the appeal to the SCC concerned the proper interpretation and application of s.718.2(e) of the CC. The provision reads: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. The accused argued that the judge at first instance failed to consider factors that may have led to the offence. The SCC rejected the argument. Justice Cory and Iacobucci, for the majority, concluded that the judge had accurately contemplated mitigating and aggravating factors. Mitigating factors included the fact that the appellant was only 20 years old at the time of sentence, that she was a mother of two and expecting a third. On the other hand, the trial judge acknowledged several aggravating circumstances. The accused had stabbed the deceased twice and made remarks after the stabbing insinuating that she had intended to cause serious harm. As a result of the SCC decision, s.718.2(e) requires “both consideration of alternatives to the use of imprisonment as a penal sanction generally, which amounts to a restraint in the resort to imprisonment as a sentence, and recognition by the sentencing judge of the unique circumstances of aboriginal offenders” (para 38). This evolved into what is known as Gladue reports. In essence, these pre-sentencing reports call upon judges to apply an alternate sentencing method that accounts for the unique systemic and background factors which may have played a part in bringing the particular aboriginal offender to court (R v Ipeelee). They are often prepared by Gladue caseworkers at the request of the defence counsel, the Crown or the sentencing judge. It is important to note, that R v Ipeelee established that an accused does not have to show a causal link between their Indigenous background and the offence committed. Gladue reports can include information about the Aboriginal offender’s history with residential schools, child welfare removal, physical or sexual abuse and any underlying health issues. Gladue reports, however, have received an immense backlash since the SCC’s decision. The overrepresentation of Indigenous offenders has been ever increasing. Between 2013 and 2018, the Indigenous population within Canadian correctional facilities has increased by 14.7%. [4] A 2008 study conducted by Welsh and Ogloff found that the s.718.2(e) interpretation “underestimated the true complexity of the over-representation problem”, finding that Indigenous status alone has little influence on sentencing decisions. The study concluded that sentencing decisions placed an emphasis on the aggravating and mitigating factors (such as offence seriousness and prior criminal history), rather than factors specific to Indigenous communities.[5] Therefore, the Gladue decision requires that sentencing decisions must sufficiently delve into the cumulative effects of colonialism and its ongoing legacy within the criminal justice system. Courts must attempt to reject Western perspectives on the purpose of criminal justice, in favour of processes that rebuild Indigenous communities and respond to the broader question of reconciliation. With this shift in perspective, Gladue reports can become an effective tool during sentencing hearings. Gladue and Black Offenders Although, Black and Indigenous communities do not share the same history, there is no doubt that both communities have relentlessly endured systemic discrimination and remain ostracized today. As such, in my opinion, the criminal justice framework must extend Gladue principles to members of the Black community, when making sentencing decisions. This approach was recently applied in R v Morris, whereby Justice Nakatsuru allowed evidence in regard to the Black accused’s personal circumstances. In brief, a jury had found Mr. Morris guilty of a number of offences, including possession of an unauthorized firearm, possession of a prohibited firearm with ammunition, and carrying a concealed weapon. Mr. Morris was arrested in December 2014, when the police received a call about a home invasion in Scarborough. The accused, along with three other young men, were stopped at a nearby parking lot by officers in plainclothes and unmarked police cars. Mr. Morris proceeded to run, eventually colliding with a police officer’s vehicle. He continued to run and was later found outside a grocery store. The police found a loaded revolver in his jacket, hidden at the bottom of a stairwell. While sentences for gun offences tend to be three or more years, the defence argued that the sentence should be one year. Justice Nakatsuru reiterated that sentencing was a “very individual process”. He concluded that s.718.2(e) enabled judges to consider the social context of Black Canadians as well. In his judgment, Nakatsuru acknowledged that systemic factors such as “the history of colonialism, slavery, policies and practices of segregation, intergenerational trauma, and both overt and systemic racism that continue to affect Black Canadians” (para 9). The decision hinged on two reports brought by the defence. First, a report on anti-black racism in Canada generally, highlighting the experiences of Black Canadians within the Toronto region. Second, the judge admitted evidence about the social history of the accused, from a social worker. He placed an emphasis on admitting such evidence during sentencing hearings, in light of the overrepresentation of Black offenders in Canada. This is vital since the goal is to arrive at a fit and proportionate sentence. The more I know about you and your crimes, the better can I arrive at such a fit sentence. This is particularly important when it comes to tackling the problem of the disproportionate imprisonment of Black offenders. If we cannot have resort to such materials, we will never begin to do better. As a result, Mr. Morris was sentenced to one year imprisonment.
I couldn’t agree more with the decision rendered by Justice Nakatsuru. I believe that judges and lawyers have a duty to recognize that Black and Indigenous persons continue to bear the burden of our criminal justice system. Broadening the interpretation of s.718.2(e) to include Black offenders is only one solution to high incarceration rates amongst marginalized communities. Since the decision was rendered at the Ontario Superior Court of Justice, the decision is deemed to only be persuasive precedent. The SCC has yet to rule on the admissibility of background evidence for other minority groups and the broadened interpretation of s.718.2(e). Nonetheless, the federal government must codify this interpretation to guarantee a consistent and equitable approach to sentencing of Black offenders. By Lucinda Chitapain
The Canadian government’s decision to close its borders, in an effort to prevent the spread of COVID-19, has wielded a substantial impact on the Canadian immigration system. Amongst several measures in response to COVID, the Immigration and Refugee Board (IRB) has paused all in-person hearings and the Immigration, Refugees and Citizenship Canada (IRCC) has come to a temporary agreement with the United States (US), which allows Canada to turn away irregular asylum claimants that have entered through the US-Canadian border. The suspension of IRB hearings has left asylum-seekers uncertain about their status and their fate in the country. It is particularly difficult for the hundreds of asylum seekers detained by the Canadian Border Services Agency (CBSA), awaiting their IRB hearings. In its call to action, Amnesty International has urged the Canadian government to consider the health of detainees and to develop an effective plan aimed at preventing both physical and psychological harms. The CBSA has made some progress, with the number of immigration detainees in provincial detention centres dropping from 353 detainees in March to 147 detainees by April 19th. While these numbers are promising, some concerns arise about the lives of these newly released individuals. (Read more about it here:https://globalnews.ca/news/6861756/canada-releasing-immigration-detainees-coronavirus-covid-19/) Asylum-seekers often do not have family or a viable source of income within Canadian borders. Given the current state of the country, there is no doubt that resettlement has become a difficult task for refugee claimants. Comprehensive resources must be allocated for these individuals, who likely need assistance in housing, employment and legal affairs. The current agreement with the US, however, questions Canada’s commitment to the 1951 United Nations Convention on the State of Refugees. When Canada ratified the Convention in 1969, it agreed to protect the lives of those who have a well-founded fear of persecution. In returning individuals back to the US before hearing their refugee claims, Canada has deeply contradicted the core principle of the Convention. This sort of agreement is not new to the IRCC. In 2004, the US and Canadian governments signed the Safe Third Country Agreement (STCA) which prohibits people from entering Canada through the official US-Canadian border, if they have already sought protection in the US (and vice versa). The purpose was to alleviate the domestic pressures on the countries’ immigration systems. Many human rights advocates have criticized the STCA on the basis that it violates Charter rights to life and security. Although these are uncertain times for governments across the world, Canada hs an obligation to uphold its commitments in the Convention. Rather than turning away potentially legitimate claimants and reneging on international commitments, alternative methods must be adopted to process asylum claims amidst these difficult times. By Lucinda Chitapain |
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