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Supreme Court upholds residential-school compensation for former student

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OTTAWA — A former residential-school student is entitled to compensation for abuse at the hands of a nun, the Supreme Court of Canada says in a decision that helps clarify the scope of appeals in such cases.

The decision came Friday in the case of an Indigenous man, known only as J.W. due to privacy considerations, who said he was assaulted at a residential school in Manitoba.

For over a century, tens of thousands of Indigenous children were required to attend residential schools, primarily run by religious institutions and funded by the federal government.

Students were not allowed to use their languages or cultural practices.

Former pupils provided accounts of physical, sexual and emotional abuse as part of an independent assessment process to determine how they would be compensated for what they went through, a program that flowed from a major 2006 settlement agreement aimed at ensuring a lasting resolution of the residential schools legacy.

J.W.’s claim was rejected by an adjudicator on the grounds that he had failed to show the nun’s alleged act — grabbing his penis while he was lightly clothed, waiting in line for a shower — had a sexual purpose.

His efforts to have the decision overturned by other adjudicators failed, but a Manitoba judge found fault with the internal decisions and sent the case back to the initial adjudication phase. A reconsideration adjudicator decided in J.W.’s favour in September 2016, awarding him $12,720.

Meanwhile, however, the federal government successfully challenged the judge’s ruling in the Manitoba Court of Appeal, which said that, under the terms of the assessment process, judges can’t carry out detailed reviews of adjudication decisions.

In its decision Friday, the Supreme Court said the courts can intervene if there is a failure to apply the terms of the settlement agreement.

However, in looking at the specific facts of J.W.’s case, only five of seven judges agreed that his appeal should succeed and that he could be compensated. Of the five, the judges split along two lines of reasoning.

In writing for three members of the court, Justice Rosalie Abella said while claimants in the assessment process do not have a “broad right” to judicial intervention, “they do have a right to the implementation of the terms of the settlement they bargained for.”

“The courts’ supervisory power must permit intervention when it is necessary to ensure the benefits promised are delivered.”

Abella lauded the 2006 settlement agreement as a respectful part of the healing process following a profoundly shameful era in Canada’s history.

The legacy of abuse committed at residential schools consists of “deep wounds not only to those who were forced to attend, but also to our national psyche,” she wrote. “The recovery process, when it is possible, is slow and painful.”

— Follow @JimBronskill on Twitter

Jim Bronskill , The Canadian Press


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Environment

B.C. tanker-ban bill squeaks through final vote in Senate

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OTTAWA — Legislation barring oil tankers from loading at ports on the northern coast of British Columbia slipped over its final hurdle in the Senate Thursday, despite last-minute attempts by Conservative senators to convince their colleagues to kill it.

Bill C-48 is one of two government bills Conservatives in both the House of Commons and the Senate say are kneecapping Alberta’s oil industry by limiting the movement of its oil. It passed the Senate by a vote of 49 to 46.

The tanker ban and Bill C-69, an overhaul of federal environmental assessments of major construction projects, have together become a flashpoint between the Liberals and Conservatives over how Canada can protect the environment without driving investment away from the fossil-fuel sector.

C-69 imposes more requirements for consulting affected Indigenous communities, widens public participation in the review process and requires climate change to be considered when major national resource-exploitation and transportation projects are being evaluated. It applies to a wide range of projects including interprovincial pipelines, highways, mines and power links.

C-69 was set for its final dance in the upper chamber late Thursday evening. The Senate made more than 200 amendments to that bill earlier this month but the government accepted only 99 of them, mostly to do with reducing ministerial discretion to intervene in the review process.

The unelected Senate has generally bowed to the will of the elected House of Commons when there is a dispute between the two parliamentary chambers about legislation.

The bills, both expected to be fodder for Liberals and Conservatives on the campaign trail to this fall’s election, were on a long list of legislation the Senate pounded through as it prepared to rise for the summer.

The House of Commons called it quits earlier Thursday. The House closed after MPs delivered condolence speeches following the death of Conservative MP Mark Warawa, forgoing the rest of the day’s planned activities out of respect for the veteran MP who died of cancer.

Bill C-48 imposes a moratorium on oil tankers north of Vancouver Island, but after the government accepted an amendment from the Senate, it will now undergo a mandatory review in five years.

The Senate committee that reviewed the bill recommended in May the entire Senate vote down the bill in its entirety, but that didn’t happen, leading Conservatives to accuse the Independent senators who make up a majority in the chamber of being Liberals in disguise.

Conservative Sen. Michael MacDonald was one of a few from his caucus to make final pleas with his colleagues to not proceed with the bill.

He said it “will be devastating for the Alberta and Saskatchewan economies.”

However several Independent senators rose to speak in favour of the bill, including Yukon Independent Sen. Pat Duncan.

“I believe we should be doing it,” said Duncan.

Ontario Sen. Donna Dasko, who was on the committee that studied the bill in the Senate, said she thinks “it is quite a good bill.”

“This bill does not actually ban tankers from the Hecate Strait; it simply landlocks Alberta and Saskatchewan oil, and destroys the possibility of economic development in northern Indigenous communities,” said Conservative Sen. Dennis Patterson, a former premier of the Northwest Territories, after the Senate passed it.

Mia Rabson, The Canadian Press

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Monument to Canada’s war in Afghanistan gets a home after years of bickering

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OTTAWA — A site has been officially approved for the federal government’s promised national monument for the war in Afghanistan, five years after the memorial was first promised.

The decision by the National Capital Commission on Thursday ends years of bickering over where the memorial should be located and paves the way for it to be built east of the Canadian War Museum in downtown Ottawa.

The national monument is separate from the memorial to soldiers who died in Afghanistan, whose unveiling at the Canadian Forces’ new headquarters building last month prompted an outcry.

The national monument was first promised by the previous Conservative government in May 2014 following the end of Canada’s 13-year mission in Afghanistan.

But while work was to be finished by 2017, the construction timeline became derailed by complaints over the government’s chosen location at Richmond Landing, near the Royal Canadian Navy Monument along the Ottawa River.

Among the concerns was the site was isolated and difficult to reach, particularly in winter and for veterans with accessibility challenges.

Members of the veterans’ community instead overwhelmingly backed a different location to the immediate west of the war museum, which was one of four sites proposed by Veterans Affairs.

But the war museum and its architect, Raymond Moriyama, opposed that site, saying the institution intentionally avoids emphasizing any one conflict and that the memorial would detract from the building’s design.

The approved location is across the street from the museum and behind the National Holocaust Monument. Design work is expected to start in the coming months, with the memorial’s unveiling now scheduled for fall 2023.

Retired major Mark Campbell, who lost both legs while serving in Afghanistan, welcomed news that officials had approved a location. He said the monument “has been in limbo far too long.”

The NCC’s decision follows an uproar last month over the way a memorial erected by Canadian soldiers in Kandahar during the Afghan war was unveiled at the Department of National Defence’s new headquarters building under what some alleged was a veil of secrecy.

The monument, with shiny black plaques featuring each of Canada’s military and civilian war dead, stood for years at Kandahar Airfield in southern Afghanistan. It was moved to Canada after the combat mission ended in 2011.

Campbell understood the anger veterans and the families of soldiers killed in Afghanistan felt after being excluded from the Kandahar memorial’s unveiling, and welcomed their being allowed to visit it.

But, he added, “people were of the mistaken perception that that was in fact the national Afghanistan War memorial or monument, and it’s not.

“It was a form of remembrance, a concrete form of remembrance, created by soldiers for soldiers. And the current location may not be ideal, but this is not the national monument we’re talking about. This was a monument created by soldiers for soldiers and families.”

Veterans Affairs Minister Lawrence MacAulay in a statement said the new location offered “an accessible and fitting place to quietly reflect and honour the courage, sacrifices and achievements of those who served during our country’s mission in Afghanistan.”

More than 40,000 Canadians served in Afghanistan between 2001 and 2014. More than 160 were killed while thousands were left with physical and psychological injuries and trauma.

—Follow @leeberthiaume on Twitter.

Lee Berthiaume, The Canadian Press

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