Author Archives: jurisblogger

The Value of Fish: Changing the Purpose of Fisheries Regulation in Canada

*une version française est disponible ici — this blog post was first published on foodlaw.ca

Why do we fish? This may appear as a silly question, but given the dismal state of fisheries in Canada and in the world, it is a very legitimate question. Several answers come to mind: to make a living, for spiritual or cultural reasons (e.g. a ceremony), and for recreation. However, there is one reason that underlines all fishing (with the exception of recreational fishing when the fish is released): food. We fundamentally and undeniably fish to eat. No one will be astounded by that answer, but as obvious as it may seem, one would be hard-pressed to find any reference to food in Canadian fisheries regulations.

This absence from the regulatory regime is not as surprising when we consider that the dominant purpose of fisheries in general and their regulation is commercial in nature. The vast majority of fisheries in Canada are caught through commercial licences regulated by the Fisheries Act. The commercial catches were valued in 2015 at over $3 billion. The Act also applies to another commercial endeavour, aquaculture, which produced in 2015 just under $1 billion worth of seafood. While part of fisheries law is aimed at conservation, one can easily argue that, with the exception of species protected under the Species at Risk Act, the goal of conservation is to ensure further commercial exploitation of the resource in the long term. In the fisheries regime, fish are a commercial product, and do not become food until after they are caught and ready for consumption (at which time the Food and Drug Act regime comes into play for quality control).

Then why does it matter that fisheries regulations do not reference food? It matters because the way laws are constructed and the inclusion of stated purposes can greatly influence their implementation by the executive and their interpretation by the courts. In other words, the law views fish as a resource, a dollar value, not as food. The current commercial mindset of fisheries law, even if somewhat tempered by its (weak) conservationist goals, is in part responsible for the sharp decline in fish stocks. This decline has and will continue to have significant environmental and social impacts. One of them is food security as many individuals and cultures depend on fisheries for survival. This issue is largely absent from the legal discourse in this field, and from the management of fisheries. Not including food in the law matters because we end up ignoring the primary function of fishing, nourishment, to favour an environmentally destructive paradigm.

As parliamentarians consider reforms to the Fisheries Act to increase fish conservation, it is time to consider changing the law to rectify the situation and integrate food security as a core concept and purpose of the Act. Food security in this context would mean that fisheries should be managed in a way that allows people who depend on fish for various reasons to have physical and economic access to sufficient, safe and nutritious seafood (based on the FAO definition). This should shift the preoccupation of the Department of Fisheries and Oceans away from “commerce” and back towards the main purpose of fisheries. Food security as a concept would also be highly compatible with conservationist goals (which should remain central), both in its need to ensure continuous (thus long term) access to fish, but also in ensuring fish quality (which depends greatly on their health). In a sense, we would replace greed by need. Such a shift would be a colossal change in the legal framework of fisheries, but given what is at stake, and given the state of fish stocks, such a change is sorely needed.

Calling Out Fascism: Reflections on Trump and Pathways to Resistance

*Originally published on 10 February 2017, re-published due to technical issues

The election of Donald Trump as President of the United States of America was a shock to many. After all, it is difficult to imagine someone less qualified for the job who would also be able to achieve the feat of winning a presidential election (thanks in part to the archaic presidential election system, i.e. the electoral college). He has no experience in politics and the actions of his team over the past two weeks suggest that he also has very little clue on how the administration he is leading actually works. This could be characterised as incompetence, and in part it is, at least in terms of how to effectively implement his policies.[1] Nevertheless, one should be careful to claim that all of the chaos and failure coming out of the White House is due to incompetence. I say this because in so doing I fear one would continue perpetuating the same mistake a considerable amount of people did over the last year, that is to not take Mr. Trump seriously, both as a candidate/President, and as a threat. And a threat he is. The chaos he creates is probably more representative of his personality, megalomaniac/narcissist, and ideology, a form of nouveau fascism, than solely of his incompetence. The recent Muslim ban is a great example. I think it is important to take Trump seriously, especially if we wish to craft effective paths of resistance.

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Of Diversity and Balancing of Rights: TWU v LSUC

The legal profession is not the most diverse of profession. For the longest time it was reserved for white cis men with enough financial mean to survive legal training. It has slowly opened its door to white cis women (although there are still issues, especially in the private sector). It is still very white and cis-hetero normative however.[1] There are probably many causes for the homogeneity of the legal profession (financial barrier to access the profession, hiring biases in large firms, the image of the profession, etc). The Law Society of Upper Canada (LSUC) is at least currently considering ways to increase diversity in the profession. While the LSUC is far from having control over all the factors affecting diversity, it does have the power to accredit law schools, and law schools are often viewed as the true gatekeepers of the profession. This power is, however, rarely used as new law schools are a rare thing. Trinity Western University (TWU), a private university that caters to evangelical Christians, is the most recent university so seek accreditation. TWU has an infamous covenant that all students are required to sign. This covenant forbids sexual intimacy except between married heterosexual couples. This unsurprisingly shocked many people including benchers (the decision-makers of the LSUC). Accrediting TWU seemed, at the very least, to go against diversifying the legal profession. The LSUC ultimately rejected TWU accreditation because of its discriminatory covenant. A law suit ensued, pitting equality against freedom of religion. Days before Toronto Pride, the Ontario Court of Appeal (ONCA) upheld the decision of the LSUC.[2] In this post, I shortly expose additional background on the case. I then explore the decision’s treatment of the LSUC’s decision making power. I finish by looking at the ONCA’s approach to the balancing of rights.

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The Need for Solidarity: Black Lives Matter and Pride

For those who are unaware, the Toronto Pride Parade was on 3 July this year. Usually the parade is pretty uneventful for the erudite. It can be a fun and colourful event (and has some significance when it’s your first), but it’s pretty repetitive (especially the one in Toronto). Same floats, same corporations pretending to care, same organisations, etc. This year, however, something pretty significant happened during pride. No, I’m not talking about Prime Minister Trudeau’s participation in the parade (I couldn’t care less about that in all honesty). Nor I am talking about the 34 years too late apology by the police for the Toronto bathhouse raids in the 80s (what about reparation?). I’m talking about the Black Lives Matter (BLM) protest during the parade. The group, composed largely of black queer people – supported by other people of colour and indigenous people (POCIP) – stopped the parade for 25 min to make demands to Pride Toronto. The demands were mostly more inclusion of POCIP in pride. One, however, shocked a great many people: the removal of the police as participants in pride events. The executive director of pride accepted the demands, only to backtrack in part the next day. We will see how things progress, but I doubt BLM will simply give up (thankfully).

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Canadians in Paris – Some Thoughts on the Paris Agreement

When the COP 21 (the 21st session of the conference of the parties to the United Nations Framework Convention on Climate Change or UNFCCC) started this fall in Paris, I had little hope we would accomplish anything. In all honesty I spent more time thinking about what would happen if the world couldn’t agree on something concrete in Paris. However, the international community realised it was no longer possible to postpone or ignore the issue. We needed to act now, and to my great relief we did through the last minute adoption of the Paris Agreement and the accompanying COP 21 Decision.[1] It is of course not the best agreement, and on its own it is clearly not enough to stop catastrophic climate change. But it is a first step that binds the international community, and a much needed signal that we need to take climate change seriously. In this post I will first briefly summarize what the Paris Agreement entails. I will then offer some thoughts on what the Agreement means for Canada.

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Syrian Refugee Crisis: How to Help

Unless you’ve been living under a rock these past months, you are already aware of the devastating effects of the civil war in Syria on its population. Syrians are fleeing en masse their country, seeking refuge where they can. Bordering states are flooded with refugees, while waves of refugees attempt to reach Europe hoping for stability and security. The Syrian refugee crisis has produced many tragedies; [1] the most well-known here is probably the story of a family who tried to reach Canada but died in the process.[2] Canada’s response to the crisis has been dismal and shameful,[3] especially considering our past responses to similar crisis (the Vietnamese one for example). The new Liberal government is under a lot of pressure to change the situation. Trudeau has already promised to welcome 25 000 Syrian refugees before the end of the year,[4] which gives me hope that the government attitudes towards the crisis will improve.

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