Winnipeg, Canada (KFGO-AM) – Last week’s shooting death of Fargo Police Officer Jason Moszer touched those hundred’s of miles away.
Winnipeg Police and Royal Canadian Mounted Police, in Manitoba, say the news spread quickly through their agencies last week.
They say law enforcement is a “brotherhood without borders” and they’ll be attending Officer Moszer’s funeral.
“Certainly myself, and I expect many others within the service, and the general population at large here in the city of Winnipeg learned through social media that Officer Moszer had been involved in that fatal encounter,” said Winnipeg Constable Eric Hofley. “It’s difficult to comprehend, we all understand that it can be part of the job but at the end of the day I think every law enforcement officer expects to go home safely to their friends and family.”
A spokesman for the RCMP in Winnipeg says officers, including senior staff, will attend the funeral Monday at 1 p.m. at Scheels Arena.
Environmental racism is a subgroup of environmental justice, or “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies” (“What Is Environmental Justice?”). It calls for a complete lack of discrimination in environmental law as opposed to an enforced equality. In relation to this, environmental racism can only be abolished if there is a lack of discrimination based on race in the exposure of populations to hazardous pollutants. If there were a deliberate equity of exposure, it would not be any better. It is only through a complete absence of the consideration of race that it can be fixed. In this essay, I will address the presence of ER in Canada and explain the effects of it. I will then focus more narrowly on a specific group to demonstrate the implications of ER and then compare it to ER in the United States.
The study of environmental racism (ER) has been active in the United States since it was first introduced by Dr. Benjamin Chavis in 1982. Dr. Chavis was an assistant to Dr. Martin Luther King Jr. and was thus inspired to work on the civil rights movement. He defines ER as “racial discrimination in environmental policymaking that results in the deliberate and disproportionate exposure of racial and ethnic minorities to toxic and hazardous environmental conditions” (Chavis). In the United States, the racial groups most affected by ER are African Americans and Hispanics; if applied to Canada, First Nations are predominantly affected.
The United States is most active in the discussion of environmental racism, so it is important to compare Canada’s version with it. The United States suffers from discrimination predominantly against African American and Hispanic low-income families and individuals. This is demonstrated by how they are either convinced by their real estate agents to purchase a home in an area close to the ghetto or are more likely to have their communities rezoned by discriminatory all-white committees, resulting in the development of industry near their homes (Checker 15). Low wages in these areas coupled with a lack of decent education prevents African Americans and Hispanics from gaining the opportunity to leave their contaminated communities (Checker 15). This is the result of deep-set discrimination that has spanned generations in the United States. Ever since the civil rights movement, there have been positive developments in regards to all areas of racism, including environmental; yet, its effects are still being felt today.
In Canada, we see a different kind of struggle. Canadian First Nations are recognized under the Constitution of Canada as self-governing, which “injects an additional component of violence, repression, and state terrorism that is largely absent from cases affecting visible minorities in the United States, where even violence takes on quite different connotations and has no component of national self-defense” (Westra 103). From this, one can easily see something that may have gone unnoticed: the discrepancy between the struggles of minorities in the United States versus those of Canadian First Nations. First Nations were the original North Americans; they were not imported as slaves, nor did they emigrate from other countries, so their struggle is tied intrinsically to the land in Canada. Additionally, First Nations are spiritually connected to the natural world, resulting in a consecration of religious sites when areas are polluted. Therefore:
Aboriginal peoples in Canada are particularly affected by unsustainable forestry practices, climate change (resulting in serious disruption to arctic ecosystems), large-scale hydroelectric projects, low-level flight testing, destructive extractive projects, contaminated drinking water, indoor air pollution, and in some cases, industrial contamination. (Collins and Murtha, 961-2)
The result of many of these disruptions is water contamination. Water quality crises have affected some First Nations communities for over a decade. As of 28 February 2014, there were 92 First Nations communities under a drinking water advisory in Canada (Health Canada). These advisories are due to pollution in the water, bacterial contamination, or algae growths; they range from a warning to a complete “do not consume” mandate.
Unfortunately, due to the isolated nature of most First Nations communities, the water advisories are less likely to be addressed than in more populous areas. In the case of Walkertown, Ontario (a predominantly white municipality), an E. coli contamination in 2000 led to “a highly publicized and formal public inquiry [which] resulted in new provincial drinking water legislation and new investments in water treatment technology” (Patrick 386). Contrastingly, Neskantanga First Nation in Northern Ontario has been on a boil water advisory since 1995 (Vowel). The duration of most First Nations water advisories often last longer than a year (Health Canada), which could be very disruptive if that advisory was “do not consume,” which it sometimes is. The fact is, First Nations communities find themselves with low water quality due to many factors. Sometimes, it is just the water’s natural bacteria levels that cause these advisories, and other times it is directly due to contamination in the area from pollution. Either way, the Canadian government is much quicker to investigate water quality in municipalities that are not First Nations and is less likely to invest in new water treatment plants in these communities.
Kashechewan is a First Nations Community in Northern Ontario, located on James Bay coast of the Hudson Bay. In 2005, they had a water-quality crisis that led to over 800 of the community’s residents being evacuated. This crisis was caused by an E. coli contamination in the water, which was in turn caused by the failure of a chlorine pump in their subpar water treatment plant. Instead of receiving funding for a new plant, the troubled community received a recommendation from the federal government: to move their entire town to the nearby city of Timmins, which has higher-quality schools, hospitals, and water (Curry). This suggestion in itself demonstrated the lack of understanding the federal government has for the importance of land in First Nations culture.
The water treatment plant in Kashechewan – when working – was effective in keeping the tap water at an acceptable level of cleanliness; however, it is what it was trying to keep out of the water that brings us back to environmental racism. Kashechewan is located at the junction of the Albany River and the James Bay coast. The town is on the south side of the river, just across the Mekopaymuko Channel; inland a mile or two there are two sewage lagoons that drain into the Albany River. The pollution leaks into the water from these lagoons, which then flows into the water around the town and becomes one of the major causes of contamination in the water (Dhillon). The location of these lagoons is suspect: there is nothing else in the area, so why locate them where they would come in direct contact with the town’s drinking water? Whether through negligence, ignorance, or a deliberate act, the placement of the sewage brings to attention the problems faced by remote First Nations communities.
Faced with a broken water treatment plant, Kashechewan had a problem. How would they afford a new system? In 2011, the reservation had 1,900 residents, with 40 babies being born every year (Stastna). In 2005, the median income for First Nations people living on reserves was $19,000 (Statistics Canada). Kashechewan easily needs more housing for the number of residents it has, but building new homes is not an option for the community. Due to the Indian Act, aboriginals are treated as children of state; their homes are built on Crown land, which means they do not own their property and therefore cannot apply for normal bank loans and mortgages (Stastna). The water treatment plant was only a decade old and had undergone a half-million dollar renovation just a year before. When it was built, it was placed 135 meters downstream from the sewage lagoons, thus being directly in the contaminated flow below the release point of the lagoons. The Ministry of Aboriginal Affairs initially funded and planned this sewage treatment plant, paid for the renovations, and even spent a quarter-million dollars flying in bottled water to the reservation after the water was contaminated (“Ont. Reserve Decries First Nations Water Crisis”). This leads one to question why the Ministry of Aboriginal Affairs would allow for a water treatment plant to be built in such a contaminated spot. It seems unavoidable that this would eventually cause a leak resulting in a polluted water supply for the area.
When one considers Dr. Chavis’ definition of environmental racism, it becomes apparent that this may be at play in the instance of Kashechewan. The placement of the facility appears to be a deliberate and disproportionate exposure of the residents of Kashechewan to hazardous environmental conditions. Because the land here is not owned by the First Nations people who live on it, they have no say over where the plant is placed. By choosing to place a sewage lagoon so close to the reservation and then later placing the water treatment plant downstream from it, the Canadian government has failed the residents of Kashechewan.
As mentioned above, ER in Canada cannot be separated from land ownership and sovereignty, because it directly affects ER. This is visible in the instance of Kashechewan: it is a result of the Indian Act that they do not own their land, and are therefore unable to choose the location of their sewage and water treatment plants. Not only has the government failed them in its laws, it has failed them with its actions. This would not be a problem if the Ministry of Aboriginal Affairs chose a more logical placement for either one of the sources of contamination. It is through a blatant disregard for the health and wellbeing of the First Nations people of Kashechewan that the Ministry allowed for this to happen.
Comparing environmental racism in Canada to its counterpart in the United States is difficult. Instances such as Warren County differ so much from ones like Kashechewan; this becomes apparent when we consider the nature of the injustice. In Warren County, NC, a private PCB landfill site was used to illegally bury 60,000 tons of contaminated soil in the predominantly black community. In Kashechewan, the Canadian government placed a water treatment facility in the direct path of contaminants from a sewage lagoon, resulting in the infection of residents when the subpar treatment facility broke. In the United States, the injustice was done publicly and was protested all along. It was also remedied and decontaminated in the following decades, becoming a main contributor to the environmental justice and ER movements. In Canada, the injustice is still ongoing and is widely unknown outside of the small community of Kashechewan. It is not protested by anyone but the residents, and it has yet to be rectified. While the circumstances in Warren County affected many more people, it does not mean they are worse than those in Northern Ontario. It is a different type of ER that is seen in Kashechewan, and that is what makes it frightening. It is under the radar and ongoing due to the inherent racism in Canadian laws and policies like those found in the Indian Act.
Environmental racism in Canada affects many First Nations communities across the country. It is widely seen in the contamination of water on reservations due to pollution by logging, hydraulic fracking, or sewage. It is based on and supported by laws that have been in effect for over a century, and will continue to affect these communities unless something is done to stop it. The most effective way to stop environmental injustice and racism is to raise awareness. If Canadians worked together and spread information about the terrible conditions in so many First Nations communities instead of focusing on the problems in the United States, perhaps they could fix what over 100 years of government discrimination through the Indian Act has caused.
Law enforcement officers and civilians alike have been using tasers for a number of years now as provisioned by laws on tasers in different states and cities in the United States. If properly used, tasers provide a non-lethal alternative to guns for police officers to incapacitate law breakers. This allows policemen to control and cuff assailants without getting themselves injured. Most of these policemen have been trained in using tasers safely.
Likewise, civilians can now make use of tasers as a safety device to protect themselves against attackers. Taser C2 is designed for personal safety that can be used from 15 feet away not allowing danger to come close. This gun can also be used as a stun gun if the target is very close, allowing the user time to get help or to escape.
As tasers are seen to be non-lethal, its carriage and use both by enforcers of the law and civilians are legal in most states in the United States. While this is more or less a standard for police officers in most states, civilian use is more restricted. Currently, 43 states see taser guns as non-lethal and can therefore be owned by civilians without a permit. Others have laws on tasers that put restrictions in place while others ban it altogether.
Below are some tips individuals owning or planning to own tasers need to remember about laws on tasers.
1. Taser guns are considered illegal in the following areas and states: Hawaii, New York, Michigan, New Jersey, District of Columbia, Rhode Island, Massachusetts and Wisconsin
2. Although other states like Connecticut allow civilian use, there are severe restrictions like tasers and stun guns can only be used at home. One can be charged with a felony if caught.
3. In states that allow carriage, check individual city laws as others like Chicago and Philadelphia also deem it illegal.
4. Check for local licensing and registration requirements.
5. Don’t carry tasers onboard aircraft. They can, however, travel in checked bags on domestic flights.
6. Only those 18 years or older and those who pass the criminal history check can purchase a Taser C2.
7. An anti-felon identification program is bar-coded in every taser cartridge allowing authorities to prevent and track misuse through its serial number.
8. Don’t take tasers to the following countries: Australia, Belgium, Canada, Denmark, Hong Kong, India, Italy, Japan, New Zealand, Norway, Sweden, Switzerland and United Kingdom as they are prohibited.
The internet can provide information in regards to “laws on tasers” and their use by civilians. Detailed state statutes and restrictions for cities and states are available online. Research is recommended before purchase to prevent unnecessary run-ins with the law due to severe penalties in some states and cities.
It is an advantage to know different essential things to protect ourselves from harm. And to keep yourself aware of personal safety and self-defense products are quite important.
Crime has come a long way to make its root firmer in society, and has forced law enforcement agencies to take up arms against criminals. Some of the countries arm their law enforcement officials with the latest and deadly weapons, which fall in the category of lethal force. The use of tactical weapons has become necessary because crime is not just about snatching bags anymore. Crime has also become techno-savvy and criminals have started to use some of the best weapons in the market. If we look at the top 10 countries with high rate of crime then the numbers are astoundingly high.
1. Iceland 14,726.95
2. Sweden 13,455.08
3. New Zealand 12,586.64
4. Grenada 10,177.89
5. Norway 10,086.72
6. England & Wales 9,823.38
7. Denmark 9,460.38
8. Finland 8,697.37
9. Scotland 8,428.97
10. Canada 4,123.97
The above are per 100,000 inhabitants
In the United States itself, the Crime Index Rates have increased from 1,887.2 in the 60’s to more than double, which are 5,897.8 by 1991 and this is per 100,000 inhabitants. In 1991, the crime rate in the US was 313% more than the rate in 1960. Crime rate in other countries of the world have also increased considerably in the last couple of decades.
For more than a few decades, law enforcement agencies in the US and in other countries across the world have been using automated weapons to fight criminals and this has resulted in loss of life on either sides. An NIJ report has confirmed that the US federal government spends approximately $75 billion on the different law enforcement agencies as well as the judicial system. Yet not all the money infused into the system has helped in protecting innocent citizens from becoming the victim. In fact, according to a report, if the overall productivity of the law enforcement agencies could be increased by 1% then it would make a huge positive impact on the crime rate in the US and will even cut down the economic loss by $700,000,000.
The question is how can the enforcement agencies fight crime effectively and without killing the criminal? The answer lies with alternative weapons, which resourceful, effective, inexpensive, and not life are threatening.
The Emergence of Taser
One of the recent problems faced by several law agencies is that of transporting hardened convicts from one prison location to another. There are times when convicts have tried to escape and in the confusion officers had to resort to using their weapons and sometimes inappropriate tactics and use of force, which cause more harm than good and even death in some cases.
This is where a Taser comes in. A Taser looks like a gun but it is an entirely different concept. It is basically a type of electroshock weapon, which can stun a subject from quite a distance. The models being used currently by law enforcement agencies are the M26 and X26. Some of the other models include the Taser C2 and the Taser M18.
The primary reason behind introducing Taser is the fact that they are non-lethal weapons that can be used by law enforcement agencies for subduing potentially dangerous and fleeing subjects like convicts. Taser can considerably reduce the usage of life threatening weapons like the service guns.
The Taser was developed initially by Jack Cover, who was a NASA researcher, in 1969. The modern day Taser can fire two small electrodes, which are connected with a main unit through two conductive wires. They are propelled into the air or towards the subject with the help of small but compressed nitrogen charges. Each of the air cartridges is equipped with two electrodes as well as enough compressed nitrogen to fire a single shot. The air cartridge has to be replaced after use.
Cartridges for the Taser are available depending on the range that you expect to achieve. The maximum range of a Taser is 35 feet or 10.6 meters, a distance at which you can fire it and catch a fleeing convict or criminal. The cartridges available for civilian use have a maximum range of 15 feet or 4.5 meters.
Once fired from the Taser, the pointed electrodes will pierce through the clothing and remain in place because of they are barbed. The latest models of the Taser including the C2 are called ‘pulse’ models and they can pierce through a Level III body armor vest. The Taser gives an electric shock that stuns the subject for a few minutes during which the law enforcement officers can overpower the subject and take him/her into custody.
The Taser C2
The Taser C2 is perfect for independent men and women who require an effective but not life threatening protection device. As of today almost 250,000 law enforcement officials across 40 countries are using different Taser devices including the C2. The Taser C2 is a great weapon for self-defense and is categorized under Electronic Control Devices (ECDs). It can propel wires that will stun the subject and affect the motor and sensory functions of the central nervous system. The Taser C2 is available with a replaceable cartridge that contains compressed nitrogen and two small electrodes and can fire a shot to a maximum range of 15 feet
The range of 15 feet gives the Taser a definite advantage because you can use it the moment you sense danger. You can even use it if someone snatches your bag at the supermarket and tries to flee. This flexibility in firing from a distance makes the Taser C2 an absolute weapon to have. The Taser C2 can protect you or your family from a potentially threatening situation and keep everyone safe.
The Taser C2 technology has been proven to be highly effective in laboratory exercises and in real life situation. It is considered as one of the best weapons for self-defense from a safe distance. Today there are in excess of 500,000 users of the Taser worldwide. The Taser C2 technology has also been supported by several medical reports and medical organizations that have vouched for the general safety that comes with this stun gun. There are no long-term injuries and the subject can recover completely in a matter of minutes.
What gives the Taser C2 the advantage over conventional weapons is that the discharge of electricity can affect the entire body as well as the central nervous system. The best thing is that you can fire it to any part of the body and it will do its job. According to several reports, the Taser C2 was found to be 95% effective during real encounters.. Unlike other Taser models, the Taser C2 will operate for a period of 30 seconds once activated. This special feature is primarily so that once deployed, an individual can drop the Taser C2 and have a 30 second window in which to escape to safety. To enhance this feature even more, Taser International warranties that if your Taser C2 is deployed in an attack, send them a copy of the police report describing the event, and Taser International will replace your Taser C2 free of charge. If a standard stun gun is the biggest selling item when it comes to personal self-defense, it is only because individuals have never tried the Taser.
The Taser M26C
The Taser M26C is an advanced version of this non-lethal technology. It also uses compressed nitrogen to fire two small electrodes up to a maximum distance of 15 feet. The electrodes are connected with the help of high-voltage insulated wires to the Taser M26C. When the electrodes come into contact with a subject then electrical pulses are transmitted through the wires into the body of the subject and can penetrate 2 inches of clothing.
The use of the Taser M26C over the years has become increasingly popular with civilians as well as law enforcement agencies due to its high degree of effectiveness and above all there is no bloodshed. It can be used in different situations and can save several lives. Most importantly, the number of deaths in custody, robbing, and theft has gone down due to the use of the Taser M26C. Using guns have never been as effective.
The Taser M26C has a 100% rating for effectiveness. The Taser M26 is not only considered as a better option to the automatic weapons being used by law enforcement agents but is also better than the traditional stun guns. One of the quantum leaps in the Taser M26C technology is the effective stopping power due to the use of a new and advanced Electro-Muscular Disruption (EMD) technology. The advanced Taser M26C can shoot 2 darts or electrodes using a 15 feet wire that ensures transfer of 50,000 volts to the central nervous system of the subject. What the Taser M26C really provides is an incredible power to take down almost any opponent.
As a result of its effective use, Taser devices or guns are being looked at as the next generation weapon. Soon it might replace the conventional colt, Walther, CZ 75B or other automatic handguns and weapons. The Taser is a weapon that can be used for self-defense by both civilians and law enforcement agencies. It is easy to use, more effective than conventional weapons, works at close range and removes any threat to life. Now that’s a weapon of the future!
Since the conception of society, law enforcement bodies have existed to protect citizens from criminals or to maintain the status quo and keep leaders in power. Dating back to Biblical times, there were military personnel tasked to maintain peace and order. In Egypt, for example, a pharaoh ruled the land and soldiers chased the Israelites across the Red Sea. There were other societies with military hierarchies as well, like the Babylonian, the Syrian, and the Palestinian societies, among others.
The most prominent of all military organizations was that of the Roman Empire. They had a very effective and brutal form of law enforcement that they utilized to maintain peace and order. It was the Romans who introduced the infamous symbol of the crucifix. The Romans never really had an actual police organization. It was only in the fifth century that clan chiefs and heads of state were tasked to police the people under their care.
London was the first to hire paid enforcers back in 1663. Afterwards, the trend spread across the United Kingdom. It was only in June of 1800, that the authorities of Glasgow, Scotland were able to establish the City of Glasgow Police. They were the first professional police enforcers that practiced preventive policing. In 1829, the Metropolitan Police Act was passed by Parliament. This established the first civil police force and the model used by many countries today, including the United States. Outside of the United Kingdom, the Gibraltar Police was the first police service in 1830. In 1721, Spain formed Mossos d’Esuadra in Catalonia. In 1834, the Toronto Police was founded in Canada. It was one of the first police departments in North America. The first full-time police force in United States was the Boston Police Department in 1839.
An Audit of Drug Strategy review unravelled that Canada ends up spending $454 million on an annual basis on controlling illicit drugs out of which $426 million was allocated to law enforcement activities alone. What is more worrisome, is that the risk reduction from illegal drug use to community health is not significant enough. From a policy perspective, the costs incurred seem to have been insufficiently evaluated. Canada is in need of result oriented outcomes from implementation of nationwide programs that concentrate beyond the Drug Prohibition domain.
The Need to Look Beyond Traditional Drug Policies
That was the precise focus of a research study from the first quarter of 2012 , which aimed to create result oriented outcomes in the Health Policy and Public Health domain. Owing to the inappropriate resource allocation towards National Health priorities, channelized largely towards Drug Law implementation and follow up, insights from the research unravel that ‘evidence-based drug treatment programs’, ‘harm reduction strategies’ and ‘opioid substitution therapy’ could prove much more effective in terms of costs as well as outcomes.
Researchers argue that the illegal market, rampant criminal violence and unintended consequences that emerge as an unavoidable effect of traditional Drug Law enforcement are extremely hard to control, and even harder to curtail. Despite this, several drug prevention programs directed towards school children and youth have received Federal Funding towards an ineffective or negative aggregate result in Canada.
More Effective Models Towards Health Improvement
Proponents of Evidence based programs aimed at drug treatment argue that a larger scale implementation effort would definitely yield appreciable benefits in terms at the micro and macro levels in the Canadian population. Medical and non-medical withdrawal programs, addiction management programs, mental health therapies, opioid substitution therapy as well as primary and residential care programs that are re-evaluated and re-launched with a renewed strategy could definitely reap positive results.
In addition, harm reduction strategies including needle exchange and methadone maintenance therapy are excellent candidates as alternative Policy strategies to traditional Drug Laws, in light of the fact that they have seldom been associated with unintended consequences.
Further, owing to global insights about the ineffectiveness of staunch criminalization measures against drugs users, Canadian Health Policy makers would achieve higher success rates in terms of costs and effectiveness by considering addiction as a Public Health issue, rather than just a criminal offence, thereby modifying legislation targeted towards non-violent drug offenders.
Lastly, a regulated drug market in Canada is identified as the need of the day, with regulated legalization of selected drugs. In light of comparative disadvantages from harmful substances (Cannabis is considered less harmful than Alcohol and Tobacco for example), legalization of only certain drugs in selected setting would curtail overall drug use and widespread unintended consequences.
The period between 2005 and 2007 was noteworthy in terms of Drug related Policy Making for Canadian Policy Makers. While 2005 opened new avenues to culminate scientific evidence towards achieving higher success rates in Health Policy implementation through Canada’s National Drug Strategy, a new anti-drug strategy in 2007 deviated focus completely.
Ever since, evidence based harm reduction programs have not received the required support from Federal offices. Researchers strongly feel the need for putting evidence based policy making in practice in the present day. Canada faces a huge crisis in controlling the cascading effects of illegal drug use, abuse and violence, and unless programs are directed with clear objectives, scientific evidence based approaches and resultant resource allocation priorities, Public Health restoration would become a costly affair in future.
Our planet is really a global village thanks to the Internet and technology and the fact that people and goods traverse the globe as never before in human history. This reality has recently affected even the area of the enforcement of foreign judgments.
For a better understanding of the of the state of Canadian and international law at the present time, we have to cast our minds back a little on history from the last millennium. Twenty years ago, some Toronto business people were involved in a complex litigation matter involving a real estate project in the Antilles. To advance their strategy, they and their Toronto lawyers decided to commence an action in the court of one of the islands. To help them advance their case, they with a local lawyer to explain the situation and to retain him to start the action against the opposing parties. After having commenced the action and served the defendant, the Toronto businessmen and their lawyers returned to Toronto, where they had to defend a lawsuit by the same party commenced in Ontario. The case went on for quite some time. Meanwhile, the
Caribbean lawyer was, it seems, getting ready for, as he put it, one of the most important trials that his small island had ever known. Unfortunately for him, one fine day, the whole dispute was settled.
The Toronto entrepreneurs’ problems had just begun. The island lawyer was not only disappointed that there would not be a trial but he also demanded an unbelievable amount for his legal fees and for the time two other local lawyers whom he retained to assist him, including the “dean” of the local bar. He did not want to hear of settling his account. He wanted nothing less than a figure the Torontonians considered outrageous.
Some time later, the entrepreneurs and their Toronto lawyer found themselves as defendants in a lawsuit of the supreme court of this small island. And to make matters worse, one of the plaintiffs was the dean of the local bar.
The best advice at that time was a defense strategy which today and from now on would be legally troublesome. The defendants decided to do nothing at all. Because they had no personal connection and no assets in the Caribbean island, (and had not been served with the claim on the island), they simply let case go by default and waited for the Caribbean lawyers to claim to enforce their judgment in the courts of Ontario. Their decision was based on the jurisprudence of the day which held that a foreign court had no jurisdiction over a foreign individual unless the claim had been served within the territory of the court or if the defendant attorned voluntarily to the jurisdiction of the court. If the foreign court had no jurisdiction over the Ontario defendant, when the judgment is sought to be enforced in Ontario, the defendant will be entitled to defend the claim on the merits in Ontario.
All of this was turned on its ear by the decision of the Supreme Court of Canada (“SCC”) in Morguard v. de Savoye (1990) SCC 1077, where the SCC held that the Morguard case altered the old common law rules for the recognition and enforcement of interprovincial judgments. These rules, based on territoriality, sovereignty, independence and attornment, were held to be outmoded.
The Morguard case established that to determine whether a court has correctly exercised its jurisdiction over the defendant, two factors have to be considered. The first is the need for “order and equity” and the second is the existence of a “real and substantial connection” with the subject-matter of the action or with the defendant. The SCC decided that the existence of a real and substantial connection with the subject-matter of the action satisfies the criteria even if such a connection with the defendant does not exist.
The law did not change for 13 ½ years until the determination of the decision of the SCC in Beals v. Saldanha. In December 2003. Beals v. Saldanha extends the “real and substantial connection” principle to foreign judgments not only from one Canadian province to another but also to judgments from other countries. The facts in Beals are significant because they show far the principle has been extended.
The appellants in the Beals case were residents. They were involved in litigation in Florida but faied to defend the claim. When they were served with a notice about a court hearing for assessment of damages by the jury, they chose not to participate. The Florida Court awarded $210,000 against them plus $500,000 punitive damages and 12% per annum interest. When they got the judgment, their Ontario lawyer told them that they couldn’t have a Florida judgment against them because they did not submit to the jurisdiction of the Florida Court. They took no steps to set the Florida judgment aside on any basis, They didn’t appeal in Florida.
The Florida plaintiffs sued in Ontario on their judment about a year later. By this time, the amount owing including interest had grown to more than $800,000. The trial judge dismissed the action for enforcement on the ground that there had been fraud in relation to the assessment of damages and for the additional reason of public policy. The Ontario Court of Appeal overturned the trial and allowed the appeal.
To enforce a foreign judgment, an Ontario court must be satisfied that certain conditions exist:
a. Whether the foreign court had a real and substantial connection with the subject-matter or the defendant;
b. Whether the defendant has submitted to the jurisdiction of the foreign court by agreement of the parties or the consent of the defendant. In the case of a judgment of a foreign court having a real and substantial with the defendant, the defendant may, nevertheless, defend the claim in the Ontario court by raising defenses of fraud, breach of public policy or denial of natural justice.
The Supreme Court of Canada, in upholding the validity and enforceability of the Florida judgment drew a distinction between “intrinsic fraud” and “extrinsic fraud”. Extrinsic fraud which goes to the jurisdiction of the original court will be enough to refuse to enforce a foreign judgment on public policy grounds. Intrinsic fraud deals with the merits of the case. That kind of fraud must be defended in the place having the closest connection with the subject-matter of the dispute.
This is also a good place to mention some other examples of the subjects which international lawyers involved in the enforcement of foreign judgments deal with and appropriate links to the Internet:
o The Hague Convention on the Recognition and Enforcement of Foreign Judgments in civil and commercial matters (which does not apply in Canada)
o Enforcement of Judgments Conventions Act, 1999 (also doesn’t apply in Canada)
o Interjurisdictional Support Orders Act, 2002
o Reciprocal Enforcement of Judgments Act (provinces du Canada);
o Reciprocal Enforcement of Judgments (U.K.) Act
I close by repeating this important word of advice – if your client tells you a story about a claim they have to defend in a court in another country, don’t disregard it. At the same time, it does not necessarily follow that you should send your client to retain a lawyer in the foreign jurisdiction. It may be that the foreign court will not accept jurisdiction over your client. The American principle to which I refer only briefly, seeks to determine whether there are minimum contacts between the defendant, served outside the court in question, so that it has an interest in deciding the case. So, it’s the lawyer not the client who should retain counsel in the foreign state.
I also point out that I have recently co-authored the Canada chapter of the international text, Enforcement of Money Judgments, where a more detailed analysis of foreign judgment enforcement in Canada is available. An article based on that chapter is found on the Ellyn Law LLP website.
The Canadian legal system is a complex code that is largely based on the common law system of the United Kingdom, but it also is supremely controlled by the Constitution of Canada, and all acts passed by the legislature, if they are to become enforceable statute, must remain consistent with this Constitution. This supreme law, however, is much more complex than a single document ratified at once; the independent sections of the Constitution have been ratified separately over the years, and, unlike the American Constitution, the Canadian Constitution contains acts that have been passed by legislatures as simple statutes but that are later codified in the Constitution. Additionally, the Supreme Court of Canada has ruled that the Constitution also contains unwritten principles; these principles include federalism, democracy, constitutionalism, the rule of law, and respect for minorities.
The Constitution Act of 1847, one of the main acts in the statutory amalgamation of the Canadian Constitution, also enumerates the powers of the federal government and the provincial governments. The powers of the federal government include the enforcement of criminal law, immigration enforcement, the regulation of banking, laws promoting peace and order in the country, and the regulation of trade and commerce in the provinces; the provincial governments control the areas of civil rights laws, hospital regulation and creation, municipal law, and government education. If a question regarding which entity has the Constitutional right to create a certain law arises, the Supreme Court of Canada will analyze the situation and make a final, indisputable decision on the matter.
The Canadian Parliament is the active federal lawmaking entity for the entire nation, and its power is divided into three branches; these three sections include the House of Commons, the Canadian Senate, and the monarch. The monarch’s role in the Parliament is passive and largely symbolic, and his or her main duty is to grant the Royal Assent; the Senate serves a similar function in the passing of the bill. The most important section of the Parliament is the House of Commons, and it contains 308 elected representatives that must be re elected on an annual basis; the House of Commons is responsible for drafting and ratifying any proposed legislative acts, while the Canadian Senate and monarch merely grant assent.
Though the power to create laws regarding criminal law enforcement lies with the Canadian Parliament, the provinces are each responsible for administrating provincial criminal courts, most of which operate on the basis of common law. These courts are separated into lower courts, appeals courts, and high courts and the lower courts are legally controlled by the precedent of the decisions of their respective higher courts. Despite this chain of legal authority, the precedent in the high courts of one province do not compulsively affect the decisions of any courts in other provinces; however, a ruling in the courts of one province is often cited as evidence in similar cases in all provinces. The Supreme Court of Canada is the only court in which its rulings act as compulsive precedent for all of the courts in the nation.