We're joined by Certificate in Law Academic Director Morgan Jarvis, using a minor holiday as a lens to see how the law applies to many aspects of our daily lives -- as exemplified by our course Law 201/701, Introduction to Canadian Law.
Located at Queen's, we naturally orient toward the City of Kingston's recent Nuisance Party Bylaw, but as we see, the law expands to a lot more than just bylaws and into a variety of areas -- some not as obvious at an immediate glance.
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Theme music for Fundamentals by Megan Hamilton. Art for the podcast by Valérie Desrochers.
Transcript:
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00:03 Speaker 1: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd. It's mid-March as I record this, and Saint Patrick's Day is just around the corner. I'm joined by Morgan Jarvis, the academic director of our Certificate In Law program. We thought it might be a good opportunity to look at how the law affects us in our daily lives by taking one of the calendar's minor holidays, Saint Patrick's Day, and our survey course of Canadian law, Law 201701, and seeing how much the law interacts with what happens on that day. Given that we're recording this at Queen's University, the conversation naturally turns to the city of Kingston's recent Nuisance Party Bylaw, but we discover there's a lot more law to Saint Patrick's Day than you might think. This is probably a good time to mention that we're not your lawyers, and this is not legal advice! If you need legal support, contact a lawyer, or if you're a Queen's student, drop by the Queen's Law Clinics, and they can either help you out or point you in the right direction. This podcast is brought to you by the Queen's Certificate In Law, the only online Certificate In Law offered by law faculty in Canada. You can find out more at takelaw.ca.
01:02 S1: So, Morgan, let's talk about Saint Patrick's Day, and all of the ways that Saint Patrick's Day connects to the law. And we're talking here about Saint Patrick's Day is a time sometimes where people gather in small respectful gatherings to have, call it, quiet contemplation of the contributions of Irish culture to Canadian society. So in the context of these small quiet gatherings on or around March the 17th, there's a lot of different ways that the law interacts with them. And I thought it might be fun to take Law 201, which is our flagship course, and use all of the sections of Law 201 and see how many of those actually play into things that are happening on or around Saint Patrick's Day. So let's kick it off, close to the top of the course, and I think this is actually gonna be one of our bigger topics. You get to constitutional law pretty early in the course.
01:51 Speaker 2: Yes, exactly. We open it up with a little overview of Canadian law and how the law is structured in Canada, what the sources of law are, and then we get into some legal reasoning, thinking like a lawyer, and then write it into the real content of the course. And that does start off with constitutional law. While we're talking about Saint Patty's Day, we pulled up this new, relatively new, last year, it came in a couple of days after Saint Patty's Day, let's call it the Nuisance Parties Bylaw. And it's actually an interesting little legal... I guess it's been subject to some fairly heated debate, really, largely because it was kind of interpret initially as applying to student parties, especially coming in right after Saint Patty's Day into this context. You might interpret it to think, "Wow, this is really just targeting student parties."
02:42 S2: But it actually reads... When you read legislation, you do think about the intent of it while you read it for its wording. And it isn't written to only apply to students or only to parties, and we'll get into that word meaning in a little bit. But just to set it up as a bit of a constitutional issue right off the bat, is it's quite interesting reading the bylaw because it opens up talking about all the legislation where the city gets its power to enact a bylaw like this that stops people from having nuisance parties, and that's based on the Municipal Act. And if we go back to the constitution, it actually divides power over the law between the federal government and the provincial government. And one of the areas of provincial power is the power over municipalities.
03:31 S2: And so then Ontario government enacts the Municipal Act. Then here we have the city bylaw, they're citing different sections of the Municipal Act, saying that the municipality... Under the Municipal Act, the municipality can pass bylaws. And they state that if someone contravene them, it's an offense and they can establish a system of fines for such offenses. They can pass bylaws for the well-being of the community, and they can prohibit public nuisance, and they can forcibly enter people's property to enforce them. And therefore, the council concludes that a nuisance party is a public nuisance that they can regulate. And then off they go into talking about what is a nuisance party.
04:08 S1: And this is one of the things that actually Law 201 one helped me understand, is the constitutional module and they really did unpack where power resides and how power is derived in Canada, and really helping understand that chain of provincial to municipal to agents of the municipality, and kind of how authority happens and where authority comes from. And when we start getting into all the components of the Nuisance Bylaw, you can kind of see all the different ways those pull together.
04:36 S2: Yes. And actually, we actually have a public constitutional course, too. And when people enjoy that part of 201, then they could dig a little deeper. And Professor Shanks is a lawyer with the government here who does a fantastic job in that course. It's very, very popular. So perhaps to dig a little more into how they've defined nuisance parties, I think it provides a rather interesting little statutory and interpretation question and a little bit of meat for a legal argument. A nuisance party means a gathering on premises, which by reason of the conduct of any one or more of the persons in attendance, is characterized by any one or more of the following, and some of those are public intoxication, and use of entry upon a roof not intended for such occupancy. And I find that it's kind of curious 'cause those are right where you're quite clearly targeting... You could picture the student ghetto on homecoming or Saint Patty's Day, and all those students sitting with their beer at 11 o'clock in the morning on roofs. [chuckle]
05:41 S2: So I'vve never seen that anywhere else. So they're quite clearly targeting students here, I think. But then I think about it. Well, I often, on the weekend, some buddies will come over, and I'm doing house renos, and so we'll be moving lumber up from one level to another end and we pile the lumber up on one roof, sit and have a beer together, and then shift the lumber up into the third floor window from that roof. So we're sitting on... We're a gathering on a roof top. So I guess now we're actually having a nuisance party. And we can be subject to up to $25,000 in fines. Same with public intoxication, I find that's kind of fun because you learn about it in the criminal law module of 201, Professor Kerr, a fantastic law professor here specializing in criminal law, and she actually cites a section of the criminal code, which I remember learning about in first year of Criminal Law here too, where it's about public nudity.
06:37 S2: And it's a fun case because you would think that public nudity, as a criminal offence, must be running down the street nude and thoroughly offending everybody. But really, it's also, if you're sitting in your own living room with your blinds open and people can see you from a public place, that's also public nudity. So then I see public intoxication here where they haven't defined "public", should that same interpretation apply where, again, if I'm sitting with some friends having a bottle of whiskey, which I can't say it doesn't happen after said house renos, are we now a nuisance party because people could see us from the street gathering on a premises, which is my home, and we're intoxicated.
07:21 S1: And I think the point here is we're not really questioning... There's a baseline intent of this law which is to help the municipality solve a problem and to improve town and government relations.
07:30 S2: Exactly.
07:31 S1: And there's certainly... And I think the law probably does a good job and goes a long way toward that intent, but there's stuff in here that when you take a course like Law 201, you begin to develop that kind of "think like a lawyer" reasoning, and you can start reading these things and start understanding what the phrases actually mean and unpacking kind of what may be some points of ambiguity or what might be some looseness around the phrasing.
07:52 S2: That's right. We do that right away in week two. We try to... I do these kinds of exercises where we're walking through examples and trying to get you to think about word meaning and, of course, the intent of rules and legislation. So that is important, you're right, to consider that the intent of this, obviously, be called nuisance parties; that's the intent. I think maybe just the debate has been around because of the vagueness of the wording and the open-ended... Or the ability to really interpret in multiple ways. It does give the police a lot of power. Thankfully, certainly it's my experience here, I've only had very positive interactions with Kingston Police, they're fantastic people. They're used to dealing with the student population in very positive ways. So I don't think we have to be concerned in any way, but it does... If there is room for... If there wasn't someone who was acting with the best intentions, there is certainly some room there for error, perhaps, on the police side or for misinterpretation on the police side.
08:57 S1: And again, it's a fun intellectual exercise just to go through this and sort of see, "Well, let's take this with a critical eye and see what comes up when we look at it through that lens."
09:07 S2: Yeah, exactly. And I think the thing to keep in mind here is that if you do go astray and end up being charged under this, the fine can be up to $25,000. And I know there's some wealthy families who send their children to Queens, but I don't think even the Richardson family of the Richardson Stadium would stomach a fine like that too easily. Actually, speaking of Richardsons, I've been dying to talk about that the recent Huawei issues in the law in this podcast, so I'm just gonna take a really quick diversion on that. You may have been reading in the news lately that the Richardson International, their big grain dealing company was actually hit with an embargo by the Chinese government as a retaliatory move from... We're interpreting it as a retaliatory move, stopping Canadian canola shipments from our prairie farmers, all starting from our extradition agreement between the US and Canada, so that's international law; we cover an International Law course at the end of 201.
10:16 S2: So we have this extradition treaty. So as pursuant to that, we arrest a Huawei executive, who the US have asked us to arrest if she steps into Canada, and so we did, and we're going through our due process in that regard. And it appears that the Chinese government is reacting in various, various ways to make a point. And so here you've got something as way up there in international extradition treaties coming right down hitting our prairie farmers in the pocket when they really can't afford it. So it's an interesting example of the big concepts in the law coming down to really count for average people.
10:56 S1: And this is something, again, that we cover substantially in the International Law course, and in kind of your retooling of 201, there's now an international law component to 201 as well.
11:06 S2: Yeah, exactly right. And then at the beginning too where we're really trying to introduce these topics happening in the world all around you to show you why learning some basics of the law really matters. You can read these news stories and understand because in a story like the Huawei one, there are so many legal issues coming up, particularly around the rule of law we keep seeing or hearing raised. So, yeah, we just wanna make sure everybody's aware of that, and given that context, understanding of why we want them to know this about the law around them.
11:37 S1: So we've got this Kingston bylaw as an interesting example of how constitutional law ties back to things like Saint Patrick's Day, and measures that municipalities might enforce to curb celebrations, so on and so forth. But what other things in the Saint Patrick's Day environment also tie back to the law? I've got a couple of things in mind, and I'm sure you do as well.
12:00 S2: Right. Yeah. And it's a important part of what people have been saying in interpreting this bylaw too, is that this is a bylaw targeting nuisance parties, but don't forget there are already rules against public intoxication, and they talk about urinating and defecating in public, and throwing garbage all over the place. These are, of course, all bylaw offenses anyway. And then there's a whole other area of law that we... Areas of law we cover in the course that would also be issues to consider. And first that comes to mind, to me, are are the concepts of property and tort. As a land owner or a tenant, you are in possession of the property. And what goes on on your property, you can be responsible for that.
12:48 S2: And that's under torts now. If you're hosting a big party, people are getting drunk and, say, they're driving home or they're going off and hurting people or there's a fight on your property, you've allowed people to get drunk and get carried away and somebody gets hurt, if something goes wrong, you could be liable for that. You could be responsible for that. You could be paying the hundreds of thousands and millions of damages for it's a serious harm that someone suffers. So I think it's important to be aware of that anyway regardless of whatever these bylaws say. You can be found at common law, responsible. When you have a duty of care for someone else, you put yourself out there in a position where somebody is vulnerable to your act, and you go wrong and they get hurt, you could be responsible for them.
13:36 S1: So the tort law portion of this, as we really get into this idea of duty of care and responsibility and negligence, and a better understanding of... And you're right, it's a good... For instance, if you throw a party and someone gets hurt, it is your duty of care and, potentially, your negligence that would lead to a lawsuit and decisions. But then you also mentioned, kind of in passing, the property law module, among many other things, does unpack a bit of what you need to understand to really understand a landlord-tenant relationship, and what rights tenants have and what rights landlords have, and what right you as a property owner have versus the rights that you're conferring on your tenants when you actually rent to them.
14:16 S2: We talk about, at the big picture level, of property being a bundle of rights and you can retain parts of those rights and give other people parts of those... Some of those rights. You can give them for a limited term, you can give them subject all kinds of restrictions and conditions, or you can just, you completely sell your property, you transfer all of those rights to someone else.
14:39 S1: So just trying another couple of things from the course just to see if we can make an association. We're on to contracts. What about... There's a contract module in law 201. Contract implications. When we get back to the bylaw, one of the outcomes of the bylaw is prospectively that you'll get a summons to court, and the university will be notified, and then you will be brought up on potentially non-academic misconduct charges, which speaks to your contract as a student with the university. As a student here, you are bound by the university's rules, and that's effectively something that would come under contract law, as I understand it.
15:14 S2: Sure, yeah. You can agree to whatever you want with somebody else as long as it's legal. So there's these contracts all around us all the time, without even... Well, you're supposed to know, but yeah, as long as you know you are agreeing, coming in into some contractual relationship, an agreement of some sort, it doesn't need to be written down; you can even have just verbal contracts that you're bound to do something in exchange for something else. And we get into the idea of consideration.
15:41 S1: And the furthest thing I got was straining to try and figure out how intellectual property connects to this. The best I could do is if you wanted to, say, make a t-shirt with the brands of some of your favorite beverages on it to give to your friends at a party or something, you can't do that because you can't actually just use the copyright and the trademarks of those organizations without their consent.
16:06 S2: Right, yeah. A similar... I guess I was thinking of a similar example of this. Back when I was a student here, the house I'm picturing is now, I think, right on the edge of where the campus has been growing, so it's quite run-down. But there had been a giant Playboy bunny painted on one of the houses, and it was referred to, of course, inappropriately, as what they were getting at the Playboy House. And I always thought... Later, when I learned about the law, I thought, "Wow, I wonder if that's an infringement of trademark, 'cause I'm sure Playboy would have registered. And if they haven't registered, they've at least got common law rights in that trademark. And I would think they could argue in association with wild parties. So if you have that logo on your house and you're hosting parties, you're probably infringing their trademark 'cause you only get trademark rights in association with the goods and services that you're providing. The tricky bit... The argument there is connecting them. But, yeah, it's the same idea I'm thinking about the posters and you see a lot of different things in house windows as you're walking around the student ghetto. And, yeah, I've been kind of pondering like, "Where are the trademark issues there?" because those posters, of course, are covered in trademarks, logos and branding.
17:22 S1: Right. So I think the idea here was let's take Saint Patrick's Day as just an example of something you can throw it law 201 and see how it stacks. And the point isn't really, "Let's dissect Saint Patrick's Day from a legal standpoint." It's how does the law apply to almost everything in our lives. And I think we've got a pretty good proof here that you can take almost anything and look at it from a legal lens and see that it's not even just a question of one law that applies to something, but the law... All sorts of laws kind of intersect with stuff we're doing all the time in our daily lives.
17:55 S2: Exactly right. The law is all around us. There's legal rules all around us. And ignorance of the law is no excuse.
18:03 S1: Alright. Thank you, Morgan.
18:04 S2: Thank you.
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18:08 S1: Thanks to Morgan Jarvis. If you're interested in a sample tray of Canadian law, covering almost every subject of import, you should check out Law 201701, Introduction to Canadian Law, at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queens Law. You can find out more about her music and meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valérie Desrochers. You can find her work at vdesrochers.com. Thanks for listening.