Category Archives: Law

Courting Canada’s Conservatism

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Much has been written about the country – our country – that Conservative Prime Minister Stephen Harper has wrought over the past decade. Indeed, this is not the Canada that Pierre Trudeau, or even Brian Mulroney, left behind.

Still, every individual lucky (or unfortunate) enough to occupy the official residence at 24 Sussex Drive makes his or her mark on the political and cultural landscape of the nation – for better and for worse.

For his part, Mr. Harper clearly hopes that however the election in October plays out he and his crusty crew of Tories will be remembered and admired as competent fiscal managers, demonstrably capable in all matters concerning the economy. And, until about a minute ago, that might have been a fair expectation.

The current condition of Canada’s commercial and labour markets has all but undermined the current government’s fondest dreams of a legacy on economic grounds. Two consecutive months of negative growth, stubbornly low commodity prices, moribund employment in just about every sector and region of the country have done quick, nasty work to the agenda.

Yet, there is one area where Mr. Harper may well have secured a place for himself in the history books: The judiciary.

In a fascinating and bravely reported piece in a recent edition of the Globe and Mail, that newspaper’s justice writer Sean Fine observes, “Mr. Harper’s battles with the Supreme Court are well known. The court has struck down or softened several of his crime laws. When the Prime Minister named an outspoken conservative, Marc Nadon, to the Supreme Court in 2013, the court itself declared Justice Nadon ineligible. Mr. Harper would go on to publicly assail the integrity of Supreme Court Chief Justice Beverley McLachlin, turning an institutional dispute into a very personal battle.”

But a closer look behind the curtain reveals a far more successful campaign to remake the country’s judicial system in a decidedly Conservative image. As Mr. Fine reports, “While those public conflicts were playing out, the government was quietly transforming the lower courts. The Conservative government has now named about 600 of the 840 full-time federally appointed judges, or nearly three in every four judges on provincial superior courts, appeal courts, the Federal Court and Tax Court.”

Why does this matter as long as the Supreme Court retains at least a modicum of ideological independence? The answer is that the high court doesn’t actually do the daily heavy lifting in our judicial system. The courts with which Mr. Harper is most concerned are, Mr. Fine writes, the ones that, “at the appeal level, decide how the government’s crime crackdown is to be implemented. At the trial level, they decide high-profile cases. In constitutional cases, they rule on social and legislative facts – anything that establishes the real-world context in which a law plays out, such as whether prostitution laws endanger sex workers.

“Higher courts, including the Supreme Court, do not change these facts, unless they view them as wildly wrong. Constitutional rulings depend on these facts. The judges, who can serve until they are 75, may be sitting long after other governments have come along and rewritten the laws. They also are a farm team or development system for the Supreme Court.”

In effect, “They are Mr. Harper’s enduring legacy.”

Economic conditions run hot and cold, but matters of justice, law and morality are enshrined in the democratic institutions we embrace and on which we depend.

This is where Canada’s new conservatism will root itself and ensure, among other things, that Mr. Harper will be remembered long after he’s left the political stage.

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Freaky. . .well, any day

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Canada, it goes without saying, follows the Unites States like a puppy unable to keep up with its mother. Politically, culturally and even economically, we’re always running at least ten paces behind the world’s acknowledged trendsetter.

A recent case in point comes courtesy of The New Yorker magazine. In his piece, “Prison Revolt”, Bill Keller writes, “Criminal-justice reformers like to say that if a conservative is a liberal who has been mugged, a liberal is a conservative who has served time. . .These days, it is hard to ignore a rising conservative clamor to rehabilitate the criminal-justice system.

“Conservatives are as quick as liberals to note that the United States, a country with less than five per cent of the world’s population, houses nearly twenty-five per cent of the world’s prisoners. Some 2.2 million Americans are now incarcerated – about triple the number locked up in the 1980s, when, in a panic over drugs and urban crime, conservative legislators demanded tougher policies, and liberals who feared being portrayed as weak went along with them.   In this historical context, today, Mr. Keller points out, “African-Americans are nearly six times as likely as whites to be incarcerated, and Latinos are more than twice as likely. More than 40 per cent of released offenders return to prison within three years.”

The piece essentially chronicles the odd, even counter-intuitive, rise of social conscience among some the most bloody-minded hardliners in the United States and, essential, asks the question: What’s going on here?

As Mr. Keller writes, “Several Republican Presidential candidates – Rand Paul, Jeb Bush, Rick Perry, and Ted Cruz – have been embraced by Right on Crime, a campaign to promote ‘successful, conservative solutions’ to the punitive excesses of American law and order. In February, the American Conservative Union’s Conservative Political Action Conference, which serves as an audition for right-wing Presidential aspirants, featured three panels on criminal-justice reform, including one called Prosecutors Gone Wild.”

Meanwhile, “Bernard Kerik, who was Rudolph Giuliani’s police commissioner and served three years in prison for tax fraud and other crimes, now promotes an agenda of reforms, including voting rights for ex-felons. The libertarian billionaires Charles and David Koch are donating money to the National Association of Criminal Defense Lawyers, to help insure that indigent defendants get competent legal representation, and they are co-sponsoring conferences on judicial reform.”

What seems to be driving this progressive trend within this formerly regressive segment of American society is a number of factors, some of which are easy to understand. State prisons cost a lot to maintain; keeping people out of jail saves taxpayers money. Then again, there does seem to be a genuine interest in social utility. As Mr. Keller quotes one Republican figure, “It’s human dignity that really motivates us.”

Now, flash over to the Great White North, and what do we observe? This federal government is tearing pages from the Republican playbook and burning them on a pyre of law-and-order moralism that properly belongs to the Richard Nixon era.

Despite seeing rates of violent crime plummet to 40-year lows, Ottawa’s majority lawmakers prefer to throw more people in overcrowded prisons for increasingly feeble offences. They insist that Canada’s city streets are not safe even though such claims are demonstrably false. And, naturally, they castigate those who disagree with them, calling their critics sympathizers and colluders of and with the “evil-doers” in our midst.

All of which feels uncomfortably sophomoric in a nation that once lead the world in grown-up behaviour – especially now, as we must look to the United States for the latest trends in social maturity.

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Tragic lessons from the desks of Charlie Hebdo

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If the barbarians who slaughtered 12 people at France’s satirical magazine, Charlie Hebdo, last week thought they were killing free speech at the point of their automatic rifles, they were sorely, absurdly mistaken.

Nothing ignites the fire of democracy in the belly of open – too often, casually complacent – societies than the massacre of innocents.

And, make no mistake, despite their habitual, even offensive, run at the world’s religions, the editors, writers and political cartoonists who died at the hands of a cadre of Islamic fundamentalists were, by any reasonable comparison with their assailants, utterly guiltless.

The wits and wags of Charlie Hebdo used their minds and pens to poke holes in the dangerous dogmas and priggish pomposities of their targets of derision. They didn’t grab guns and blow away their ideological nemeses like so many deer caught in the headlights of fanatical blood-lust.

As the still-civilized world mourns the obscene events in Paris, it also stands firm and united in its determination to, again, enshrine the principles of a free press as a requisite condition of an unfettered and enlightened society.

Canadian editorial cartoonists – marking the passing of four of their French peers – have come forward, joining their voices with hundreds of others around the world.

As CTV reported on Thursday, “In Halifax, Michael De Adder and Bruce MacKinnon both drew poignant pieces for the murdered. De Adder’s cartoon showed a hand writing out the words, ‘freedom of speech,’ with extremists trying to stop the hand from completing the words. . .MacKinnon’s showed a tattered French flag flying at half-mast, with a pencil serving as a flagpole.”

Said Bruce: “As negative and traumatic as this is, it has the opposite effect because it proves our relevance. It shows that what we do has an effect and does matter.”

Added Mike: “I’m actually more jazzed to continue what I’m doing.”

Their colleague, Edmonton Journal cartoonist Malcolm Mayes, praised his fallen, overseas comrades for their courage in the face of numerous threats over the past several years from would-be – now confirmed – Islamic terrorists.

To CTV, he said, “They weren’t cowed, they weren’t afraid. They stood their ground and that’s what people have to do in the face of threats like this. . .I’m not going to change the way I draw or change my opinion because someone threatens me.”

Opined Terry Mosher (a.k.a. Aislin), who made his professional bones afflicting the comfortable and comforting the afflicted on the editorial pages of the Montreal Gazette: “Satire is poking fun and questioning hopefully all of our institutions and our attitudes. Nothing is ever 100 per cent right. So the whole purpose of satire is to test your system and see if we can poke fun at these things and question them – obviously, I believe in that very strongly.”

Sadly, too many young, radicalized thugs around the world simply do not share similar values. Even more lamentable is that some of them possess the means and the opportunity to wreak havoc – on the societies that have accepted them without much compunction – at will.

We can, of course, react with force – hunting down likely perpetrators George W. Bush-style, throwing them into internment camps, subjecting them to state-sanctioned torture, and conveniently forgetting where we left the keys to their locked cages.

We can, naturally, launch drones to blow up their enclaves and, in the process, a few thousand innocent bystanders and call that “collateral damage”.

Or we could take to the generally safe streets we call home – as millions have over the past few days since the Charlie Hebdo tragedy – and declare that freedom is a universally accessible commodity; that speech is the mechanism of democracy; that live ammo is the last resort of a peaceful, productive civilization just as it is the first of an authoritarian, paranoid one.

We could take a breath and remember to get back to the hard, sometimes perillous, work of promulgating the worthy, essential notion that the free expression of ideas defines us as thinking humans, not killers or murderers or vile barbarians.

Those who died at the offices of Charlie Hebdo understood this. They weren’t martyrs. But they were heroes of democracy, and our memories of them will live longer than those we now revile of the savages who ended their lives.

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In the policy-maker sweepstakes, the Supremes win

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It’s bad enough for a sitting government with an entire justice department at its disposal to be judged broadly inept on matters of law. But to be found so wanting by one of the country’s leading conservative think tanks?

Gadzooks! Et tu, Brute?

But there it was some days ago for all to witness: The Macdonald-Laurier Institute’s 2014 pick for policy-maker of the year.

The winner was (cue drum roll) the Supreme Court of Canada. The reason was (cue kazoo) it managed to wipe its hallowed chambers with government lawyers 70 per cent of the time in big, landmark cases.

Allow into evidence, if you will, item #1: The federal Tories wanted an elected Senate and thought they could push a form of one through legislative channels without opening up the Constitution and all that pesky inter-provincial wrangling that is, in fact, the very essence of Confederation.

The Supremes’ response: “Sorry, fellas, it’s not gonna happen on our watch.”

This almost dismissive “now-off-you-go-and-play-nice-for-a-change” routine transpired seven times in 10 Supreme Court considerations of government cases. Apart from the Senate decision, these included key matters involving aboriginal title and land claims, prostitution, the appointment of Supreme Court justices from Quebec, cybercrime, truth in sentencing, and retrospective repeal of accelerated parole review.

For Benjamin Perrin – an Associate Professor at the University of British Columbia, Faculty of Law and a Senior Fellow at the Macdonald-Laurier Institute – who who picked this year’s top policy-maker, the decision was a no-brainer:

“The policy and legal impact of the Supreme Court of Canada’s decisions of the

last year are significant and likely enduring; the Supreme Court of Canada was a remarkably united institution with consensus decisions on these significant cases being the norm, and dissenting opinions rare; and the federal government indeed has an abysmal record of losses on significant cases, with a clear win in just one in 10 of them.”       

What’s more, if there had been a concerted effort to stack the court with justices who could be counted upon to tow the Conservative Party line, that effort seems to have failed miserably. “(Mr. Perrin’s) analysis showed that the court reached a consensus decision in 80 per cent of these cases – higher than the average over the past decade,” a Macdonald-Laurier press release stated.

Added Mr. Perrin, himself: “There is no evidence whatsoever of any observable split in the Court’s decisions on significant issues between the six judges appointed by Prime Minister Harper and the three judges appointed by previous prime ministers.”

Make no mistake, these are no trifling matters. Mr. Perrin correctly observes that 2014 hosted a disproportionate number of landmark cases. The government’s losing streak effectively handed the keys to the castle to the judicial branch.

“In its decisions on significant constitutional matters in the last year, the Supreme Court of Canada has made bold decisions that fundamentally affect the way Canadian Democracy functions,” he writes.

Furthermore, he concludes, “The most significant and enduring impact of the Supreme Court of Canada in the last year will be its interpretation of the amending procedures in the Constitution Act, 1982, in its reference decisions related to Senate reform and the appointment of judges to the high court from Quebec. Taken together, these decisions entrench the Senate and Supreme Court of Canada as institutions that are virtually untouchable. Changing the composition of either institution has been determined to require the unanimous approval of the House of Commons and the Senate as well as every provincial legislature.”

So, then what happened in 2014?

Did the government know the law well enough before it argued its cases before the court? Or, did justice lawyers feel that discretion was the better part valor (or, at least, their own job security) before politely suggesting that their political masters were out to lunch on one or more points of precedent?

In any case, Mr. Perrin thinks a post-mortem is in order. “Until this is exhaustively done, it would be premature, as some commentators have suggested, to conclude that there is a fundamental rift in values between the federal government and the Court.”

Maybe, but from where this commentator stands, it sure looks that way.

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In the policy-maker sweepstakes, the Supremes win

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It’s bad enough for a sitting government with an entire justice department at its disposal to be judged broadly inept on matters of law. But to be found so wanting by one of the country’s leading conservative think tanks?

Gadzooks! Et tu, Brute?

But there it was last week for all to witness: The Macdonald-Laurier Institute’s 2014 pick for policy-maker of the year.

The winner was (cue drum roll) the Supreme Court of Canada. The reason was (cue kazoo) it managed to wipe its hallowed chambers with government lawyers 70 per cent of the time in big, landmark cases.

Allow into evidence, if you will, item #1: The federal Tories wanted an elected Senate and thought they could push a form of one through legislative channels without opening up the Constitution and all that pesky inter-provincial wrangling that is, in fact, the very essence of Confederation.

The Supremes’ response: “Sorry, fellas, it’s not gonna happen on our watch.”

This almost dismissive “now-off-you-go-and-play-nice-for-a-change” routine transpired seven times in 10 Supreme Court considerations of government cases. Apart from the Senate decision, these included key matters involving aboriginal title and land claims, prostitution, the appointment of Supreme Court justices from Quebec, cybercrime, truth in sentencing, and retrospective repeal of accelerated parole review.

For Benjamin Perrin – an Associate Professor at the University of British Columbia, Faculty of Law and a Senior Fellow at the Macdonald-Laurier Institute – who who picked this year’s top policy-maker, the decision was a no-brainer:

“The policy and legal impact of the Supreme Court of Canada’s decisions of the last year are significant and likely enduring; the Supreme Court of Canada was a remarkably united institution with consensus decisions on these significant cases being the norm, and dissenting opinions rare; and the federal government indeed has an abysmal record of losses on significant cases, with a clear win in just one in 10 of them.”

What’s more, if there had been a concerted effort to stack the court with justices who could be counted upon to tow the Conservative Party line, that effort seems to have failed miserably. “(Mr. Perrin’s) analysis showed that the court reached a consensus decision in 80 per cent of these cases – higher than the average over the past decade,” a Macdonald-Laurier press release stated.

Added Mr. Perrin, himself: “There is no evidence whatsoever of any observable split in the Court’s decisions on significant issues between the six judges appointed by Prime Minister Harper and the three judges appointed by previous prime ministers.”

Make no mistake, these are no trifling matters. Mr. Perrin correctly observes that 2014 hosted a disproportionate number of landmark cases. The government’s losing streak effectively handed the keys to the castle to the judicial branch.

“In its decisions on significant constitutional matters in the last year, the Supreme Court of Canada has made bold decisions that fundamentally affect the way Canadian Democracy functions,” he writes.

Furthermore, he concludes, “The most significant and enduring impact of the Supreme Court of Canada in the last year will be its interpretation of the amending procedures in the Constitution Act, 1982, in its reference decisions related to Senate reform and the appointment of judges to the high court from Quebec. Taken together, these decisions entrench the Senate and Supreme Court of Canada as institutions that are virtually untouchable. Changing the composition of either institution has been determined to require the unanimous approval of the House of Commons and the Senate as well as every provincial legislature.”

So, then what happened in 2014?

Did the government know the law well enough before it argued its cases before the court? Or, did justice lawyers feel that discretion was the better part valor (or, at least, their own job security) before politely suggesting that their political masters were out to lunch on one or more points of precedent?

In any case, Mr. Perrin thinks a post-mortem is in order. “Until this is exhaustively done, it would be premature, as some commentators have suggested, to conclude that there is a fundamental rift in values between the federal government and the Court.”

Maybe, but from where this commentator stands, it sure looks that way.

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When getting answers from Ottawa, the cost is worth the price

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Go ahead, ask a question of one of Canada’s esteemed government members. I dare you.

We unelected peasants are, of course, accustomed to obfuscation masquerading as straight talk from those who we periodically install to purportedly defend our democracy.

But it may surprise you to learn that one Conservative backbencher has actually obtained a price tag for every query his fellow parliamentarians — Tory or not — toss at cabinet members in the simple prosecution of their duties.

It’s $117,188 and change.

That’s not for answers to trivial inquires, such as “Will the minister please explain why the socks he is wearing today do not match?” or “Why does this government insist on telling Canadians that sartorial standards require that all attendees to baseball games wear straw boaters, when clearly brimmed caps are the norm?”

No, it’s the cost associated with replying to weightier interrogatives related to such matters as “the percentage of Employment Canada benefits applications that are rejected and how many people have to wait longer than 28 days for a response; which government department is responsible for monitoring the transportation of fissile radioactive material inside our borders; how much money Ottawa has spent developing software since 2011 and what the software actually does; and the amount the government spent on travel expenses while negotiating the Comprehensive Economic and Trade Agreement with the European Union.”

The quote comes from a Globe and Mail editorial published last Thursday. It refers to actual questions on the Order Paper, which provides mostly opposition MPs with a constitutionally valuable means to ascertain just how much horse pucky a reigning government manages to sling during any given parliamentary session.

Now, Tory MP Mike Wallace wonders whether the cost to Canadian taxpayers is worth the effort to remain accountable to Canadian citizens, if only in this one, time-honoured way.

To be clear, he asked a question, placed on the Order Paper (presumably costing $177,188) that, reportedly, went like this: “Are we sure we’re getting value for the dollar?” In an interview with the Globe, he elaborated: “I think it’s just important that it’s on the record. I think government and Parliament could run more efficiently and effectively in a lot of areas and this is just one little, tiny example of where. . .are we sure we’re getting value for the dollar?”

To ask whether it’s prudent to ask questions of government members, knowing that the question itself will add to the putative $1.2-million, annual bill you’re railing against in the first place, is the apex of right-wing disrespect for, and cynicism about, 145 years of wise, parliamentary procedure.

You might have simply emailed my old colleague Sean Fine, justice reporter at the Globe, with your thoughts. No harm, no foul.

As for you now, though, for shame, Mr. Wallace, for shame!

Still, know that you are not the only one of your ilk who owes an apology to the Canadian electorate.

There is the little matter of your overlord’s constantly fractious relationship with this country’s judiciary, in which he has impugned the reputation of its head, for no apparent reason except spite; slammed its obligations to patiently review the exigencies of government’s legislative branch in the context of constitutional justice; and all but repealed an enlightened policy of his own design because a few big mouths in his circle chose to speak out against him.

Again, the Globe reports: “Last year, Prime Minister Stephen Harper announced that selection panels of MPs from the major political parties would assess candidates being considered for the Supreme Court of Canada, in consultation with leading judges and lawyers, though the actual appointment would remain a Crown prerogative.”

Now, we learn, alongside Mr. Wallace’s concerns about sharing information too freely among the hoi polloi, that this noble exercise in accountability is “being reviewed” for the simple reason that it produced too much accountability, too much truth about Ottawa’s wheelhouses of power and influence, too much public information made too readily to the very people who install these bozos to defend our democracy — we, the peasants.

Dare we ask questions? We’re damed if we don’t.

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Ottawa to the courts: Don’t be so judgy

 

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If certain Tory Members of Parliament are beginning to suspect that the bull’s eyes painted on their backs are not, in fact, figments of their fevered, paranoid imaginations, they might be right.

Never in recent times has the gulf between the executive and judicial branches of government been so cavernous as now. Consider the latest trouncing of the Harperites by the courts, as reported recently by the Globe and Mail’s justice writer Sean Fine:

“The Conservative government’s latitude to choose its own policies was curtailed yet again on Friday when a (Federal Court) judge called health-care cuts for failed refugee claimants a form of ‘cruel and unusual treatment’ and ruled them unconstitutional.”

What’s more, he observed, “So rare is the use of Section 12 of the Canadian Charter of Rights and Freedoms – ‘cruel and unusual treatment or punishment’ – that neither the government nor the refugees’ representatives were able to identify a single successful claim outside of criminal cases.”

Hardly able to contain his glee, Lorne Waldman, the lawyer for the Canadian Association of Refugee Doctors told Mr. Fine, “It’s huge – it opens up a whole new claim that we can make when we want to challenge government conduct.” 

For its part, the government remains undeterred. True to form, Immigration Minister Chris Alexander stiff-upper-lipped his reaction to the ruling, insisting he will appeal. “Failed claimants and those from safe countries like the U.S. or Europe should not be entitled to better health care than Canadians receive.” 

This is, of course, utter nonsense. Decent health care for refugee claimants (failed or successful) does not preclude similar service and treatment for citizens and immigrants. It never has.

But it is a response that’s typical of this government when it has been thwarted in pursuing its sometimes incomprehensible social agenda. And the whining, it seems, is growing louder with each passing day. 

In April, the Supreme Court slapped Prime Minister Stephen Harper’s hand by ruling that, no, he can’t just go ahead and make the Senate an elective body without the consent of the provinces, because that, dear boy, would be patently unconstitutional.

“The Senate is a core component of the Canadian federal structure of government,” the ruling read. “As such, changes that affect its fundamental nature and role engage the interests of the stakeholders in our constitutional design – i.e. the federal government and the provinces – and cannot be achieved by Parliament acting alone.”

To which Mr. Harper rejoined, just a wee bit petulantly, “(it is) a decision for the status quo, a status quo that is supported by virtually no Canadian. . .(the country has no interest in) “a bunch of constitutional negotiations. We know full well that there’s no consensus among the provinces, there’s no willingness to reopen the Canadian constitution.”

Only the month before, the Supreme Court ruled, in a precedent-setting decision, that Ottawa had no right to retroactively annul the early-parole entitlement of three federal inmates in British Columbia.

The government’s March 2011 legislation effectively, “deprive(d) the three respondents of the possibility of being considered for early day parole, which was an expectation they had had at the time they were sentenced (and) had the effect of punishing the respondents again,” the court found.

Again, the Tories were unrepentant. “Our Conservative government has been clear,” Jason Tamming, a spokesman for Public Safety Minister Steven Blaney, declared. “We do not believe that white-collar criminals and drug dealers should be released after a mere one-sixth of their sentence.”

Then, there were the kerfuffles over imposing longer prison times (nope, no can do), closing a B.C. drug clinic (we’d rather you not) and even a sketchy appointment to the Supreme Court, itself (nice try, pal, but no cigar).

In all of this, the preponderance of evidence yields one of two possible conclusions: That the various levels that comprise Canada’s justice system has it out for the sitting government and the merry pranksters it calls its cabinet ministers; or that the federal Tories know more about the ideological preferences of their voting base than they do about the actual law.

I might wish for the former, and all the court-issued bull’s eyes; but I fear that the latter is closer to the truth.

 

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