"Those communities really shouldn't exist"

So reads the headline on a two-page story in the Post which talks about 'voluntary relocation' for remote First Nations and Inuit communities. A comment noted in bold in the editorial section suggested stopping the 'gravy train' and said (this part was in bold) "If native populations choose not to improve their situation with resources agreed to, too bad".

Expect to see some forthcoming government policies dressed up as reform of the Indian Act which will (a) move populations to urban areas (b) pay some large sounding but actually small monies to the people moved and (c) terminate treaty and aboriginal rights.

Replacing manufacturing jobs with call centres - unemployment up again

The numbers alone mask a deeper problem. Not only are jobs disappearing -- the jobs that remain are low paying and often part-time. Canada's manufacturing sector is especially hit; and replacing manufacturing jobs with call centres is not a good societal exchange:

http://bit.ly/rLwM5O

Canada's labour market has hit a wall, with job declines in three of the past four months suggesting turmoil outside the country's borders is denting the confidence of employers.

The country shed 18,600 jobs last month after a tumble of 54,000 in October, marking the first back-to-back monthly drop since the recession. The jobless rate hit a five-month high of 7.4 per cent, Statistics Canada said Friday.

Setting aside a default

Roth v. Bourollias, 2011 ONCA 760, released today, deals with setting aside a default. 

 

In general on a motion to set aside a default, the court will consider: (a) whether the motion to set aside the judgment was brought promptly; (b) where there is a plausible excuse or explanation for the defendant's default in complying with the Rules of Civil Procedure; and (c) whether the facts establish at least an arguable case: Nelligan v. Lindsay, [1945] O.W.N. 295 (H.C.J.); Laredo v. Sinnadurai (2005), 78 O.R. (3d) 321 (C.A.); Morgan v. Toronto (Municipality) Police Services Board, [2003] OJ. No. 1106 at para. 19 (C.A.); MacNaughton v. The Royalton, 2011 ONSC 17. 

 

Today’s decision is a helpful appeal decision upholding, albeit slightly restating,  the long established test:

 

[1]              Justice Strathy addressed the motion based on the governing case law set out in Scaini v. Prochnicki, [2007] ONCA 63, which confirmed the factors from Reid v. Dow Corning Corp., (2001), 11 C.P.C. (5th) 80. He considered each of the four factors: (1) explanation for the ten-and-one- half year delay; (2) inadvertence in missing the deadline; (3) bringing the motion promptly after discovering the dismissal; and (4) prejudice to the defendant. He found in favour of the respondent on each of the factors. He found that there was no adequate explanation for the delay and that the appellant did not show diligence in prosecuting the action.

 

Attawapiskat

Various newspaper and media commentary have suggested the answer to the problem in Attawapiskat, and other isolated First Nations communities, is to move everyone to a southern urban setting.

A typical comment is:

She believes the only solution to improving the lives of natives on isolated reserves is to get them off those reserves. “For the sake of this generation of children, having to grow up in those squalid conditions, we have to face the fact that isolated reserves have been a failed experiment and that it’s time to move on.”

A strong attachment to the ancestral homeland is understandable but the price in dollars and lost human potential is too steep to pay.

On the surface this seems reasonable. Canadians, living in poverty, in economically backward and profoundly isolated settings should move (or be moved).

Now the subtext (which I put in brackets) is relevant. Forcible movement has been done before. In the High Arctic successful Inuit lives were crushed when RCMP, largely so as to require settlement and end a nomadic lifestyle, killed Inuit dogs (http://www.qtcommission.com/actions/GetPage.php?pageId=39) . Residential Schools were designed (and imposed on unwilling communities) to integrate, by force if necessary -- in 1928, a government official predicted Canada would end its "Indian problem" within two generations. The result was untold suffering and, of course, utter failure (http://archives.cbc.ca/society/education/topics/692/). And yet despite this history there are still calls to impose a new order on First Nation, Metis and Inuit communities. It is not at all implausible that entire communities could still be forcibly moved under the guise of emergency aid or better long terms services. This cruelty has failed before and we must state clearly it must not happen again.

But more generally, why is it that there is such poverty and First Nations, Metis and Inuit? Why are so many communities suffering?

One of the real sins of apartheid in South Africa was the distribution of land. Blacks were “given” tribally based self-governing homelands; but the problem was the homelands, broadly speaking, were on poor land and economically undevelopable. The Reservations are, if anything, even less developable than South Africa’s bantustans. In 1907 the creation of Reservations was described, quite truthfully, as follows:

A natural result of land cessions by the Indians to the British Government and, later, to the Dominion was the establishment of reservations for the natives. This was necessary not only in order to provide them with homes and with land for cultivation, but to avoid disputes in regard to boundaries and to bring them more easily under control of the Government by confining them to given limits. This policy, was followed under both French and English control. It may be attributed primarily to the increase of the white population and the consequent necessity of confining the aboriginal population to narrower limits. (http://faculty.marianopolis.edu/c.belanger/quebechistory/encyclopedia/IndianreservationsinCanada.htm)

“The consequent necessity of confining the aboriginal population to narrower limits” was to put people onto territory that is not, and cannot be, self sufficient. Attawapiskat has an urgent and immediate need – that cannot be overlooked – but solutions along the lines of “move them to Timmins and let them melt into the general population” ignores the fact that “them” are people with the right to self determination and ignores why Attawapiskat is poor to begin with.

York Region Bus strike will continue

Would this be allowed to continue in Toronto -- I think not!

York Region won't intervene in transit strike

BY KEVIN CONNOR ,TORONTO SUN

NEWMARKET - York Regional Council is refusing to ask the province for back-to-work legislation to end the YRT and Viva transit labour dispute.

“York Region wants a fair deal for bus drivers and mechanics but not at the expense of taxpayers,” chairman Bill Fisch said Friday.

“The reality of the unions current wage demands would mean a $26 annual increase for the typical York Region property taxpayer, or an additional 45-cent fare increase for transit riders.”

http://www.torontosun.com/2011/12/02/york-region-wont-intervene-in-transit-strike

O’Connor production

R. v. Kokopenace, 2011 ONCA 759 deals with production of records relating to jury lists under R. v. O'Connor, [1995] 4 S.C.R. 411. The Court ordered such production saying:

[10]         There is no dispute as to the legal test to be applied on this application.  As the Supreme Court of Canada explained in O'Connor, at para. 22, "likely relevant" in the context of production means that there is a "reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify" (emphasis omitted).

[11]         The Supreme Court of Canada confirmed this meaning of "likely relevant" in McNeil and further explained, at para. 33, that:

An "issue at trial" here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also "evidence relating to the credibility of witnesses and to the reliability of other evidence in the case"….  At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial.  The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position. [Citation omitted.]

[12]         The position taken by the applicants in the appeals is that there was systematic underrepresentation of First Nations persons in the 2008 Kenora District and 2007 Simcoe County jury rolls.  As a result, the juries in the trials of the two applicants were not representative and new trials should be ordered.

...

[16]         In our view, the applicants have demonstrated that these records are likely relevant.  They seek the very lists used to prepare the impugned jury rolls.  These records may contain annotations, entries or other information that can be used in testing the statements made by CSD deponents and in better understanding the process used to prepare the jury rolls.

[17]         The applicants need not establish the probative value of the records; they must only show that there is a reasonable possibility that the documents are "logically probative" to the issues raised respecting the representativeness of the jury rolls.