Law on the ground

In Butterfield v. LeBlanc et al, 2007 BCSC 235 states 

 [7] Mr. Butterfield claims that, due to the way punctuation is used in statutes, all governments are corporations. He also claims that Canada does not exist as a federal nation and that the provinces are independent nations. The thrust of the arguments is that the prosecution of him was unlawful, and he should be compensated. 

[8] Much of Mr. Butterfield’s argument is based on the use of grammar that he says leads to a number of conclusions, including that governments are corporations and do not have the authority to pass laws. For example, paragraph 3 of his Statement of Claim is as follows:

This Statement of Claim, is based upon legal definitions provided in “Statutory” instruments; certain internal “governmental” documents; a publication from the Translation Bureau as a special operating agency of the Department of Public Works and Government Services “Canada”; research results provided by individuals working with Justice “Canada” including Ed Hicks, Counsel, Legislative Services Branch of Justice Canada; Canadian Law Dictionary; Legal Maxims; Hansard from House of Commons Debates; and documentary evidence produced either by “government” or by former “government” employees/officers ; or grammar and/or language usage authorities and does not rely upon belief, theory or opinion. 

[9] I quote from para. 31 of his Statement of Claim to illustrate part of the substance of his claim:

That evidence will show the real provinces are not “a part of Canada”, and are independent nations as established by the Statute of Westminster 1931. Definitions provided for the term “province” by both the Federal and Provincial “Interpretation Act” includes only the Northwest Territories, the Yukon Territory and Nunavat, and expressly excludes any geographic area known on the street as a province. i.e. Alberta, British Columbia, etc. 

[10] Mr Butterfield claims that there was a conspiracy against him by the defendants, who are among the conspirators. Paragraph 43 of his Statement of Claim sets this out:

That by 1998-1999, the conspiracy had gained new partners in their wrongdoings with the “Department of Justice” and followed shortly thereafter by the “Province of British Columbia Ministry of Health”. The Complainant [Mr. Butterfield], was then made victim of their “selective prosecutions” and labelled as a “Tax Protestor/Anti-government”. The Complainant is neither a “Tax Protestor” nor “Anti-government”. The evidence will show that the Complainant is only concerned with the welfare of the people and their country, and other than being compensated for the fraud and human rights violations he has suffered, desires only to cause creation of lawful governments capable of creating public laws, and to serve the people. 

[11] Mr. Butterfield claims, at para. 46 of his Statement of Claim, that he was defamed by the defendants and that they maliciously violated his human rights by unlawfully taking part in the prosecution against him. 

[12] The above sets out the basics of Mr. Butterfield’s claim, although it is 59 paragraphs in total. .... 

[15] I will first address briefly Mr. Butterfield’s contention that governments are corporations. Although Mr. Butterfield commenced with a premise and then carried his argument somewhat logically from that premise, the main flaw in his argument on this aspect of his pleadings is that his premise is flawed. 

[16] Mr. Butterfield commenced his argument by relying on The Canadian Style: A Guide to Writing and Editing. This literary guide is published by Dundurn Press Limited “in co-operation with Public Works and Government Services Canada Translation Bureau”. Mr. Butterfield relies on 4.21(c) which states: 4.21 Geographic Terms (c) Do not capitalize a generic term such as city, county, state or province when it precedes the proper noun or stands alone, unless it is used in a corporate sense: 

[17] Mr. Butterfield’s argument equates the word “corporate” with the word “corporation” and he limits the word corporation to mean that related to business. His argument is that since certain words, such as Province and City, are capitalized, then they must be corporations, not government entities. The word “corporate”, however, refers to forming a body politic, which can include, for example, a town with municipal rights. Indeed a corporation can be created by an act of the legislature to form towns. 

[18] Mr. Butterfield overlooks the examples provided in the writing guide that he relies on where the corporate use of the word includes “Buy Province of Ontario bonds”. 

[19] Thus, the claims the plaintiff makes with respect to conclusions flowing from his misinterpretation of grammar fall under Rule 19(24) (a)-(d) inclusive. 

[20] The next primary part of his pleadings relates to his interpretation of the Statute of Westminster, 1931 and his conclusion that there is no such thing as Canada, as well as other legislation which I will turn to momentarily. 

[21] Mr. Butterfield bases his arguments on the debate in the legislature. The date is not clear, but it appears to be 1945. It is a speech given in Parliament by Walter Kuhl, a member from Jasper-Edson Alberta between 1935-1949. He represented the Social Credit Party and later the New Democracy party, then returned to the Social Credit party. Also submitted by the plaintiff are writings of Mr. Kuhl and others on the issue that Canada is not properly constituted as a country. From this “fact”, the plaintiff argues that therefore Canada cannot pass laws which are binding on people who live (as he says) in the independent provinces, including the Income Tax Act. 

[22] Mr. Kuhl argued that The British North America Act, 1867 (U.K.), 30 & 31 Vict., c.3, did not make Canada a federal union. Canada did become a federal state under the Act, but not a sovereign state. The Parliament of the United Kingdom still had the ability to pass laws that were in force in Canada. The passage of the Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. V, c. 4, abolished the Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63, which had permitted the British Parliament to pass laws affecting the then Dominion of Canada. Mr. Kuhl argued, as does the plaintiff, that because the Provinces did not enter into an agreement at this time to form a federation, that none exists. 

[23] At the time of Confederation, several provinces formed the new Dominion of Canada. As time passed, eventually all the provinces joined, the last being Newfoundland in 1949. There was no need for a new agreement to be entered into in 1931. The Statute of Westminster gave sole authority to the Canadian government to pass its own laws, as authorized under the BNA Act, removing the power from the United Kingdom Parliament, save and except regarding amendments to the BNA Act itself. 

[24] The Statute of Westminster did not permit the amendment by the Canadian Parliament of the British North America Act. This could only be done by the British Parliament. It was the convention not to amend the BNA Act without a request from and the consent of Canada. However, Mr. Kuhl continued with his arguments, and indeed published a booklet called Canada: A Country Without a Constitution. 

[25] There are a number of flaws in the argument of Mr. Kuhl, adopted by the plaintiff, some of which are noted above. However, the short answer is found in 1982, when Canada patriated its constitution as a result of the Constitution Act 1982 which is Schedule B to the Canada Act, 1982 (U.K.), 1982 c. 11. As of 1982, Canada was a country with its own constitution and if there was any substance to the suggestion that Canada did not have the ability to legislate, (which there clearly is not), then the foundation for the argument crumbled in 1982.

Regulation

'Immunity Through Bankruptcy for the Sackler Family' by Daniel G Aaron and Michael S Sinha in West Virginia Law Review (Forthcoming) comments

 

In August 2023, the U.S. Supreme Court temporarily blocked one of the largest public health settlements in history: that of Purdue Pharma, L.P., reached in bankruptcy court. The negotiated bankruptcy settlement approved by the court would give a golden parachute to the very people thought to have ignited the opioid crisis: the Sackler family. As the Supreme Court considers the propriety of immunity through bankruptcy, the case has raised fundamental questions about whether bankruptcy is a proper refuge from tort liability and whether law checks power or law serves power.  

 

Of course, bankruptcy courts often limit liability against a distressed company, but here, the Sacklers did not themselves declare bankruptcy. Instead, they added about $6 billion to the pot—compared with $600 billion in annual costs from the opioid crisis, by some estimates—and are allowed to keep any remaining profits. The bankruptcy court justified immunity on the grounds that the Sacklers’ money was protected in offshore accounts and trusts and therefore could not be reached through tort liability—all the better to have them participate voluntarily. In other words, the Sacklers laid the groundwork for their own immunity by sheltering the money they withdrew from Purdue. 

 

We have doubts that a single court should have the enormous power of shielding the Sackler Family from all future civil liability for the opioid crisis, simply to enlarge a settlement. Public health litigation has the power to address root causes of public health crises by disincentivizing unscrupulous actors. Granting these actors immunity may insulate them from public criticism while undermining the important role of courts as an avenue of recourse. Upholding immunity for the Sackler family would lay the groundwork for future executives to ride a company into the ground, at the expense of public health, golden parachute ready and waiting. : https://ssrn.com/abstract=4739307

Biopolitics

'Granular biopolitics: Facial recognition, pandemics and the securitization of circulation' by Mark Andrejevic, Chris O’Neill, Gavin Smith, Neil Selwyn and Xin Gu in (2024) 26(3) New Media and Society 1204-1226 comments 

The COVID-19 pandemic has provided opportunities for facial recognition technology and other forms of biometric monitoring to expand into new markets. One anticipated result is the wholesale reconfiguration of shared and public space enabled by the automated identification and tracking of individuals in real time. Drawing on data from several industry trade shows, this article considers the forms of ‘environmental’ governance envisioned by those developing and deploying the technology for the purposes of security, risk management, and profit. We argue that the ‘contactless culture’ that emerged during the COVID-19 pandemic anticipates the normalization of a form of mass-customized biopolitics: the ability to operate on the population and the individual simultaneously through automated forms of passive identification. This form of governance relies not just on machinic recognition, but on the real-time reconfiguration of physical space through automated access controls and the channelling of both people and information. 

A New York City attorney received widespread media coverage when she was singled out by an automated facial recognition system and denied access to see the famed Rockettes with her daughter at Radio City Music Hall during the Christmas holidays. Reportedly, the venue’s parent company, which owns several New York City venues, including Madison Square Garden, had a database of the employees of law firms engaged in legal action against and was systematically excluding them from events (Hill and Kilgannon, 2022). The incident was, in the scheme of things, relatively minor, but it highlighted the use of facial recognition technology for the management circulation in a way that is likely to become increasingly common as the technology spreads. We open with this example, because the control of access and circulation with automated facial recognition was a recurring theme in our research on the deployment of facial recognition technology during the COVID-19 pandemic. The multiplication of boundaries and checkpoints during the pandemic lent itself to automated firms of identity and status verification. As in the case of the New York attorney, individuals in a crowd could be identified and singled out – based on a range of information including COVID-19 symptoms (such as elevated temperature), past exposure, and their vaccination or quarantine status. Although the focus of this article is on the framing of the utility of facial recognition during the pandemic, the logic of automated governance we examine has broader relevance in the era of remote, real-time biometric identification. 

Indeed, the imperatives of the COVID-19 response – social distancing and contactless-ness – accelerated the development and deployment of passive forms of tracking and detection that enable increasingly individualized forms of social control. As soon as physical proximity came to be viewed as a threat, technologies that provide ‘at-a-distance’ services were enrolled to replace face-to-face activities so as to reduce the potential for viral contagion. At the same time, the goal of preserving as much circulation as possible led to the replacement, in many contexts, of blanket forms of quarantine by targeted forms of screening and sorting. The goal was to allow ‘safe’ forms of circulation while identifying and curtailing avenues of potential contagion. As it transpired, the social distancing imperative became a selling point for the emerging smart-camera and facial recognition industry, which mobilized the promise of efficient, passive, mass-customized monitoring. The result was, as one news account put it, ‘a lucrative market for facial recognition manufacturers’ (O’Donnell, 2020). 

The widespread highly publicized response to the pandemic thus spurred, ‘novel uses of biometric technologies to limit contagion and maintain economic opportunities’ (Van Natta et al., 2020: 1). Our field work in security industry trade shows suggests that for the promoters and vendors of the technology, the pandemic provided additional impetus for highlighting the personalized logics of governance and control already envisioned by the technologies they have been developing and promoting. ‘Frictionlessness’ – for example, could be reframed not just as a means of easing passage through existing checkpoints (such as secure locations, ticketed venues and transit turnstiles), but as a way of managing the proliferating array of borders and access points associated with pandemic management. Office buildings, apartment complexes, shopping malls, and public facilities sprouted checkpoints to monitor vaccine status, symptoms, and potential exposure risks. Some systems regulated access to workspaces based on pandemic occupancy requirements. This ‘thickening’ of the borders to fill a growing number of spaces – and even to enable continuous real-time monitoring – heightened the need for automated forms of identity and status verification. The ability to deploy automated recognition systems at the level of individual movement and access control represents an emerging scale and temporality of the governance of circulation with implications that, while revealed by the pandemic, extend beyond it. 

Drawing upon field research on the use of facial recognition during the pandemic, we describe this form of governance as a ‘granular’ form of biopolitics – a formulation meant to highlight the customized forms of intervention it envisions. A more precise, though perhaps more obscure, formulation would be to describe the mass-individualized governance of shared spaces as a granular form of ‘environmentality’. This term invokes speculative observations by Michel Foucault (2008: 259) about forms of control that operate not at the level of subjectification (as in the case of disciplinary practices), but at that of the environment, or ‘milieu’. Typically, the milieu refers to a shared environment, however, the novelty of automated identification is that it enables the individualization and customization of the milieu itself. The result, we argue, is the mass-customized management of populations at the level of the individual, without necessarily relying upon the attendant forms of subjectification that mark the disciplinary ‘pole’ of biopolitics. As Han (2022) puts it in his reflections on ‘infocracy’, ‘. . . disciplinary power gives way to smart power, a power that does not give orders but whispers, that does not command but nudges. In other words, it pokes us with subtle tools that influence our behaviour’ (p. 5). As we shall see, a range of imperatives including heightened acceleration and norms of efficiency can be built into the material and informational environment without necessarily being ideologically internalized. We may not consciously desire to continually accelerate our production of electronic communication, but the systems we rely upon make this process all but inevitable. Processes of subjective internalization can, in this respect, be displaced or bypassed by feedback in the physical and informational environment. Rouvroy et al. (2013) make a similar point in their work on algorithmic governmentality, which, they argue, ‘produces no subjectification, it circumvents and avoids reflexive human subjects, feeding on infra-individual data which are meaningless on their own, to build supra-individual models of behaviours or profiles without ever involving the individual’ (p. 169). 

This shift marks a historical development in the deployment of biopower anticipated by the widespread deployment of automated forms of real-time identification at-a-distance, and, relatedly, in the development of customizable environments including virtual and augmented reality.