Day: January 9, 2020

What the Wet’suwet’en case says about how Canadian courts address Indigenous law

About 30 years before the Wet’suwet’en First Nation faced the possibility of a natural gas pipeline through its territory, members fought a different battle in court.

Lawyer Peter Grant, who represented the Wet’suwet’en and neighbouring Gitxsan First Nation, reportedly called an elder as a witness and asked her to sing a death song.

The 1991 Delgamuukw case considered the existence of Aboriginal title and Grant told the B.C. Supreme Court that the song was part of an oral history that explained the First Nation’s relationship to the territory.

In an exchange widely quoted in legal journals, he was interrupted by Justice Allan McEachern, who said it wouldn’t do any good to sing the song because he had a “tin ear.”

The tin ear analogy was front of mind for legal expert Doug White as he read a decision issued last week by the B.C. Supreme Court granting an injunction to Coastal GasLink against pipeline opponents in the territory.

The company plans to build a 670-kilometre pipeline from northeastern British Columbia to LNG Canada’s $40-billion export terminal on the coast in Kitimat.

It posted an injunction order Tuesday giving opponents 72 hours to clear the path to its work site, although the company said its focus remains on reaching a peaceful resolution. The notice comes a year after the RCMP enforced a similar injunction and arrested 14 people at the site.

At the core of the dispute is the fact that although the company has signed agreements with all 20 elected First Nations along the pipeline’s path, the Wet’suwet’en hereditary clan chiefs say the project has no authority without their consent.

“We’ve got to be able to start to grapple with the reality of Indigenous legal tradition in this country,” said White, who is the director of Vancouver Island University’s Centre for Pre-Confederation Treaties and Reconciliation.

It’s long been a challenge for the Canadian legal system to hear and incorporate Indigenous law and legal traditions in its decisions, and the latest decision reflects the status quo, he said.

But recent developments, like the B.C. government’s adoption of the United Nations Declaration on the Rights of Indigenous People, suggest the time is right to figure it out.

“We have to urgently start to find solutions that work, because the longer we delay finding those solutions or building those solutions together, creating common understanding and pathways, the more we’re going to end up in this kind of conflict,” White said.

The Dec. 31 decision says the courts need to be flexible in how it approaches proof of Indigenous law, while suggesting the questions raised in the injunction hearing would be better addressed through a constitutional challenge.

“The reconciliation of the common law with Indigenous legal perspectives is still in its infancy,” Justice Marguerite Church wrote.

At the same time, she says that while Wet’suwet’en customary laws “clearly” exist on their own independent footing, they are not recognized as being an effectual part of Canadian law because the Wet’suwet’en Aboriginal title claims have not been resolved through litigation or negotiation.

“The defendants are seeking to exclude the application of British Columbia law within Wet’suwet’en territory, which is something that Canadian law will not entertain,” Church writes.

From White’s perspective, Canada’s entire legal model is based on a blend of legal traditions, so it shouldn’t be a stretch to incorporate other models too.

In the family law realm, the Canadian legal system has taken Indigenous customary law into account. As early as 1889, Canada recognized Indigenous models of marriage and there were several adoption cases in the 1940s recognizing Indigenous family models, White said.

There’s also a comprehensive body of law dealing with Indigenous issues beyond families, especially since the 1960s, but the courts have struggled to deal with one particular area, he said.

“There’s one major omission, there’s one big huge smoking hole in the middle of all of this. And that is the issue of Aboriginal self-governance or self-determination,” White said.

The Tsilhqot’in decision in the Supreme Court of Canada, which recognized the Tsilhqot’in’s claim to Aboriginal title to their land, was a significant move in that direction.

But even on that issue, White points out that an earlier judge suggested the court isn’t the best venue to pursue reconciliation.

There have been significant strides in recent years towards the recognition of Indigenous law in Canadian legal culture.

Indigenous law classes and programs are increasingly common in universities across the country.

The University of Victoria announced a new program in 2018 that it declared the first of its kind for combining the “intensive study of both Indigenous and non-Indigenous law,” promising it would enable students to work fluently across the two realms. Canada’s largest law school, York University’s Osgoode Hall, also added an Indigenous and Aboriginal law requirement to its juris doctor program that year.

But until the courts learn to better listen to what Indigenous Peoples are saying, or what their legal traditions and authorities are, many like those opposed to the Coastal GasLink pipeline won’t feel heard, White side.

“For whatever reason, the Canadian imagination has not had room for dealing with that reality, it’s not been part of the official narrative.”

This report by The Canadian Press was first published Jan. 9, 2020.

Amy Smart, The Canadian Press

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Fugitive Ghosn brings global attention to Japanese justice

TOKYO — Though former Nissan Chairman Ghosn is unlikely to stand trial in a real court, he has made himself a key witness in putting Japan’s justice system on trial.

In his first public appearance after fleeing to Lebanon, Ghosn lambasted unfair detention and bail conditions, said he was presumed guilty and had “zero chance” of a fair trial in a system rigged against him.

“I didn’t run from justice, I left Japan because I wanted justice,” the former auto industry icon said at a spirited, two-hour news conference in Beirut.

With little chance they can extradite him, Japanese authorities struck back with words Thursday.

Tokyo prosecutors, who arrested him in late 2018, said Ghosn had “only himself to blame” for being detained 130 days before being released and for the strict bail conditions like being banned from seeing his wife.

“Defendant Ghosn was deemed a high-profile risk, which is obvious from the fact that he actually fled,” they said.

Justice Minister Masako Mori denounced Ghosn’s comments as erroneous and credited Japan’s extremely low crime rate to a judicial system rooted in “its history and culture.”

Ghosn’s remarks, however, highlighted many of the issues human rights advocates call problematic in Japan’s justice system.

Because of Japan’s extremely low crime rate, how suspects are treated is surprisingly unknown to Japanese, who tend to trust authoritative figures and assume no one gets arrested without a reason.

In Japan, suspects can be detained in solitary confinement without charge for up to 23 days. Charges can be filed piecemeal to prolong incarceration. Suspects are routinely grilled for hours each day without a lawyer present. Critics call the detention conditions mental torture.

Japan’s conviction rate is higher than 99%, a number that critics, including Ghosn, say indicates unfairness.

Japanese officials insist the conviction rate is so high because they don’t make mistakes and only guilty people are prosecuted. At the same time, they insist there’s presumption of innocence.

It’s an entrenched system that not only leads to confessions but also has judges thinking suspects are guilty, says Tokyo defence lawyer Seiho Cho, who has been trying to change the system.

“They really believe that this system is functioning efficiently and correctly,” he said.

Cho said Ghosn was a high-profile case and the way regular suspects get treated is worse.

Those who insist they are innocent especially are detained longer, some for hundreds of days. Bans on contact with family members are also common, he said.

The ban in Ghosn’s case cited the risk his wife Carole may tamper with evidence. An arrest warrant was issued this week for Carole Ghosn on suspicion of perjury.

Carlos Ghosn argued the ban on contact with his wife was illogical because he was allowed to meet with other family members, implying the decision was meant to wear him out. His decision to escape was driven by his desire to be with his wife, he said.

The preparation for Ghosn’s trial had already taken a year, and the date for his trial was undecided. He was charged with underreporting of future income and breach of trust in diverting Nissan Motor Co. money for personal gain, the two separate charges complicating and prolonging his trial process.

If convicted, he could face 15 years in prison. Prosecutors also can appeal district court decisions, prolonging the process for defendants.

“Even when they are eventually exonerated, they have already lost so much,” Cho said, noting some suspects have lost their jobs, their reputation, even their families.

Among the famous cases of wrongful convictions is Iwao Hakamada, who spent 48 years in prison until new DNA evidence won his release from death row in 2014. He had been questioned, beaten and bullied by police daily in detention and confessed to murdering a family of four, but asserted his innocence when his trial began.

Frenchman Mark Karpeles was arrested in 2015 after his bitcoin exchange collapsed. He spent 11 months in detention, although he was eventually cleared of embezzlement and fraud allegations. He got a suspended sentence, meaning no additional jail time was required, on a conviction on charges of manipulating electronic data. He is appealing. Karpeles said he was an innocent victim of hackers.

A true-life story of a man who refused to sign a confession that he groped a woman on a crowded commuter train became a popular 2007 movie. The film depicts a five-year legal battle for exoneration, highlighting the burden of proof of innocence was on the accused rather than police and prosecutors proving guilt.

Although Ghosn has drawn attention to the system’s possible flaws, Cho was worried about a backlash, with release on bail getting tighter.

“We had gradually been making progress, but this could set us back,” said Cho.

For example, with the idea of introducing an electronic tether, which Japan lacks and Ghosn had proposed to get bail, fewer people could end up getting bail, and, on top of that, get electronically monitored.

Interpol has published a wanted notice for Ghosn but it is non-binding. Chief government spokesman Yoshihide Suga said whether Ghosn would be extradited was Lebanon’s decision but that Japan would co-operate with international organizations “so that Japan’s criminal justice system can be operated appropriately.”

Jacques Deguest, an expert on Japanese law and business, thinks Ghosn’s case is so embarrassing for Japan it may discourage some non-Japanese from wanting to invest or live in Japan.

“Prosecutors are regarded as guardians and protectors of Japanese culture,” said Deguest, an investor, lawyer and consultant.

Their super-efficient, but often brutal, practices have resisted change, but sometimes pressures from abroad can bring about change in Japan, Deguest said.

“Change happens often through crisis because it forces people to be uncomfortable with the status quo and forces them to move on,” he said.

“This Ghosn case is great in terms magnitude because it has the power to put the external pressure on Japan that we all love,” Deguest said.

Ghosn was careful not to blame the people of Japan for what he called the nation’s injustices.

He led Nissan for two decades, steering the automaker back from near-bankruptcy to a thriving brand, although sales and profits have tumbled since his arrest.

Ghosn said people on the streets who spotted him while he was out on bail would come up to him.

They would tell him, he said in Japanese, “Ghosn-san gambatte kudsai,” using the honorific for his name, saying: “Hang in there.”


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Yuri Kageyama, The Associated Press

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What we know so far about the GTA residents killed in the Iranian plane crash

Several people from the Greater Toronto Area are among the 63 Canadians killed after a plane crashed in Iran.

Ukraine International Airlines flight PS752 to Kyiv went down minutes after taking off from Tehran’s main international airport on Wednesday morning. The plane crashed into farmland outside of the capital, killing all 176 people on board. 

The cause of the crash is still unknown. 


York Region District School Board students killed

Multiple students from the York Region District School Board were killed in the crash.

“We are heartbroken by the news and our thoughts and deepest condolences are with all those affected,” the board chair and director of education, Louise Sirisko, said in a statement on Wednesday. 

“This is a global tragedy affecting us locally and we join our families and communities in grieving. Sadly, we are aware that our region and schools have been directly affected by this sudden and tragic loss of life.”


The school board was unable to confirm to CTV News Toronto how many of their students were killed in the crash. 

Toronto District School Board students, family members killed

The TDSB confirmed in a statement that a number of their students, along with their family members were killed in the crash. They also said the family member of one of their employees was killed.

“On behalf of the Toronto District School Board, we offer our sincere condolences to their friends, family, teachers and classmates,” a statement on Wednesday afternoon said. 

“Social work staff are already working with the impacted schools and we are supporting the victims’ loved ones in any way we can.” 

Speaking to CP24 Wednesday afternoon, TDSB spokesperson Ryan Bird confirmed that Maya Zibaie, a grade 10 student at Northern Secondary School, was among the deceased.

“The message that was recently sent out by the principal said she enjoyed attending high school and often shared with staff how excited she was about her future and reaching her academic goals.”

Bird added that the board is working to confirm the names of the other TDSB students and staff killed in the crash. 

University of Toronto students among the deceased

In a news release issued Wednesday, the University of Toronto confirmed that six students are among those killed in the crash.

“On behalf of the entire University of Toronto community, I want to say how deeply saddened we are, and how concerned we are for the families and friends of those who lost their lives. We are continuing to gather information, and taking care to respect the privacy and wishes of all involved.”

The University of Toronto has identified the six victims as Mojtaba Abbasnezhad, Mohammad Asadi Lari, Zeynab Asadi Lari, Mohammad Amin Beiruti, Mohammad Amin Jebelli and Mohammad Saleheh.

Flags at all three U of T campuses will be flown at half-mast.

Centennial College mourns loss of faculty member and his family

Centennial College has confirmed that a member of their faculty, as well as his young family, were killed in the crash.

In a tweet Wednesday, the college said that Dr. Razgar Rahimi, his spouse, Farideh Gholami and their three-year-old son, Jiwan, were all killed in the crash.

George Brown College student killed

George Brown College has confirmed that student Darya Toghian is among the deceased. Toghian had travelled to Iran with her mother for the holidays. Her mother was supposed to be on the return flight as well, but cancelled her ticket at the last minute. The 22-year-old was flying back to Toronto for her second semester.


Sadaf Hajiaghavand

27-year-old Sadaf Hajiaghavand was killed after the Ukraine International Airlines flight crashed. She is being remembered as someone who loved fasion and being with friends.

Sadaf Hajiaghavand

Behnaz Khoei Ebrahimi and Rahmtin Ahmadi 

Toronto resident Behnaz Khoei Ebrahimi and her nine-year-old son Rahmtin Ahmadi were killed in the crash, CTV News Toronto has confirmed. 

Iman Ghaderpanah and Parinaz Ghaderpanah

CTV News Toronto has also confirmed that Toronto resident Iman Ghaderpanah and his wife Parinaz Ghaderpanah were killed in the crash.


Alina Tarbhai 

The president of the Ontario Secondary School Teachers’ Federation confirmed an employee of the union’s provincial office, identified as Alina Tarbhai, was killed in the crash. 

“Alina was a valued employee, and part of a tightly-knit team at provincial office. She was respected and well-liked by all. Her passing represents a profound loss for all of us who worked with her,” Bischof’s statement read.

“On behalf of OSSTF/FEESO members across the province, I want to extend our heartfelt condolences to Alina’s family, and to the families of all who were taken in this tragedy.”

Read more: What we know about the Canadians killed in airliner tragedy 

Parisa Eghbalian and Reera Esmaeilion 

CTV News Toronto has confirmed that Parisa Eghbalian and her 9-year-old daughter Reera Esmaeilion are among the 63 Canadians killed in the crash.


Arad Zarei

Friends of Arad Zarei say they were chatting with the Richmond Green Secondary School student two hours before the crash. He had expressed his concern over the growing tension between Iran and the United States and said “Thank God i just left. If i stayed a couple more days…it would have been over for me.”


Neda Sadighi 

Optometrist and eye surgeon Neda Sadighi was killed in the crash, CTV News Toronto has confirmed. Colleagues said Sadighi had travelled to Iran before Christmas to visit family and was scheduled to return to work Thursday.


Bahareh Karami

Bahareh Karami, a York Region staffer, is among those killed in the crash, CTV News Toronto has confirmed.

York Regional council confirmed the news in a statement in which they described her passing as “heart-breaking”.

“We are so shocked and extremely saddened by this tragedy,” York Region Chairman and CEO Wayne Emmerson said.

“Our prayers are with Bahareh’s family, friends and colleagues, and for everyone that may be impacted in any way by this horrific event.”


Suzan Golbabapour 

Friends and family of Suzan Golbabapour have confirmed to CTV News Toronto that the Richmond Hill resident was killed in the crash. Colleagues of the real estate broker say they’ll remember her most for her positive energy.


Flags lowered across GTA

In a statement issued Wednesday, Toronto Mayor John Tory said he was “deeply saddened” by the tragedy.

“We now know residents from Toronto were on this flight and have lost their lives – they were our friends, our neighbours, our classmates, our co-workers, and our loved ones.”

Tory said that flags at City Hall, and at civic centres in East York, Etobicoke, Scarborough, North York and York will be lowered until end of day Monday.

The Toronto sign in Nathan Phillips Square has also been dimmed.

Premier Ford heartbroken over tragedy

Premier Doug Ford has released a statement on the tragedy in which he said his “heart breaks” for the families and loved ones of those who died.

“Today, we mourn the 63 Canadians and all of the other passengers and crew of Ukraine International Airlines Flight PS752 who lost their lives suddenly and tragically while flying from Tehran to Kyiv.”

Ford goes on to say that the Ontario government stands with the povince’s Iranian community during this time of grief.

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By The Wall of Law January 9, 2020 Off