RSS FeedWhy Québéc Cannot and Should not Ban the Niqab
An article jointly written by David Shulman and Lawrence Gridin
Last week the government of Québéc announced that it would restrict female Muslims from covering their faces with the niqab. This article is about the fundamental freedoms that we enjoy as Canadians and human beings, and the power of the government to encroach upon those freedoms.
The legislation proposed in Québéc will prevent a woman wearing a niqab from being able to access public services, including consulting doctors at a hospital or attending classes at university. It also prevents all government employees from wearing a niqab, including those employees who have no contact with the public. More details can be found here.
Prime Minister Harper and Liberal Leader Michael Ignatieff have announced that they support the ban, and a large (if not overwhelming) majority of Canadians agree with them.
A Primer on Freedom
Let’s begin our discussion with a review of the Ann Coulter affair, which bears some analogues to the Québéc niqab issue.
We cannot think of another person whom we personally disagree with more on virtually every dimension than Ms. Coutler. We have difficulty thinking of anyone else who spews out as much vile hate, ignorance and prejudice as Ms. Coulter. We’re bothered by the fact that there is any demand — outside of perhaps morbid curiosity — for her wares at all.
Here are three pieces, taken from Ms. Coulter’s repertoire, that support our opinion:
“They’re [Democrats] always accusing us of repressing their speech. I say let’s do it. Let’s repress them. Frankly, I’m not a big fan of the First Amendment.”
- University of Florida speech, October 20, 2005.
“I have to say I’m all for public flogging. One type of criminal that a public humiliation might work particularly well with are the juvenile delinquents, a lot of whom consider it a badge of honor to be sent to juvenile detention. And it might not be such a cool thing in the ‘hood’ to be flogged publicly.”
- MSNBC, March 22, 1997.
“I think [women] should be armed but should not vote…women have no capacity to understand how money is earned. They have a lot of ideas on how to spend it…it’s always more money on education, more money on child care, more money on day care.”
- Politically Incorrect, February 26, 2001.
Despite our profound disagreement with her views, we would fight vigorously to protect Ms. Coulter’s right to express them. The right to freedom of expression is guaranteed by our Charter of Rights and Freedoms. We would proudly defend her right to freedom of expression in any court with every ounce of our ability and integrity, just as vigorously as we would defend our own right to criticize and disagree with her views.
Why?
York U Rapist Appears Unrepentant
(Left) Daniel Katsnelson in 2005, slightly before the assaults occurred. (Middle, Right) The defendant, now known as Daniel Kaye, in more recent photos.
Want to get lucky with a couple of Jewish guys?
Those are words that will probably haunt several York students for the rest of their lives.
On Sept. 6, 2007, many York University students were enjoying Frosh Week. Some who weren’t even students were enjoying themselves a little bit too much.
Daniel Katsnelson and Justin Connort graduated from York in 2006, but were still engaging in the festivities by drinking close to the campus. They made their way to Vanier College around 2:45am, where they entering a total of six bedrooms under the pretense of helping a drunken friend.
Katsnelson has now changed his name to Daniel Kaye. The 25 year-old man lived with his grandparents in an apartment in Thornill, near Bathurst and Steeles, not far from where the assaults occurred. Police eventually identified Katsnelson from surveillance footage.
The exact chronology remains unclear based on media reports, but we do know there were several victims.
The man now known as Daniel Kaye proceeded to forcibly have sexual intercourse with a 17 year-old victim from behind after stating the now-famous line above. The experience was so memorably for Kaye that he captured it on photo. The pair only left when the victim, bleeding from her injuries, resisted a second attempt by Kaye,
F– this, let’s get out of here.
She continued to bleed for a week.
Not satiated, they continued to look for other victims in other rooms. He asked one woman to “make out” with him because,
I have never made out with a black girl.
They continued to search for victims for 90 min., before forcibly raping another 18 year-old student. Before this day she had never had intercourse. Yes, she was a virgin.
But what has shocked the public the most is the apparent lack of remorse of the young man.He even hoped his victims gained something positive from the experience, like learning to keep their doors locked. Presumably to keep people like him out.
When he pleaded guilty back in January he said,
The past two years have been hell for me.
If he thinks that is hell, he deserves to be in hell. His suffering is nothing compared to what I have gone through.
One of his victims dropped out of school as a result. Another laments the permanent trauma she continues to suffer from.
The first victim stated,
I have been given a life sentence through no fault of my own.
The second said,
I feel like damaged goods. I have lost my sense of independence. I am sure I will never be the same.
Connort pleaded guilty at the sentencing hearing last Friday, and was given 3 years in prison. The Crown is asking for 10 years prison for Kaye, registration in the National Sex Offender Registry, and providing a DNA sample. His lawyer is asking for only 3-5 years.
We expect sentencing by April 16.
Discussing Quan v. Cusson and Grant v. Torstar
The Ontario Bar Association (OBA) Young Lawyers Division has an interesting article by Karen Perron of Merovitz Potechin LLP discussing an event they held with Wendy Wagner of Gowling Lafleur Henderson LLP and Ron Caza of Heenan Blaikie LLP on the two recent SCC decisions in Quan v. Cusson and Grant v. Torstar,
After reviewing the decisions themselves, our speakers discussed the impact of the decisions on the daily practice of law in this area. Because a key component of the defence is proving that the journalist/writer was diligent in trying to verify their story, will this now invite a more formal exchange between the media and the subjects of the reports who are, arguably, the potential victims of defamation? Lawyers acting on the plaintiff side are now getting calls from their clients immediately after they are contacted by journalists. What is the best advice to provide to your client in this circumstance? How can you provide an opinion to your client on the merits of his or her case without first proceeding to discoveries to uncover the extent of the journalist’s due diligence? Of course, the counterargument is that responsible journalists should always take the necessary steps to verify their stories prior to reporting them in any case, including speaking to the subject of the report. Will this defence actually bring anything new to the manner in which good journalists function? However, will the responsible journalism defence now impact the public’s interest to receive news stories in a timely and effective manner? How long should a journalist wait to receive a plaintiff’s response in a world where news is a quickly perishable item?
Many other considerations also come into play. How will the defence evolve in light of the fact that the jury has been given the role of determining whether the publisher was diligent in trying to verify the allegations? Also, the defence has not been limited to the media. What effect will this have on bloggers and tweeters? These decisions also introduced the reportage defence, which is an exception to the repetition rule that otherwise holds that repeating a libel has the same legal consequences as originating it. How will the new reportage defence evolve? Will experts be required to testify on whether or not a journalist completed their due diligence? Will a standard of care emerge for journalists?
Good questions. We’ll have to watch the case law to find out.
Jedi Freedom of Religion
Food for thought: Is being a Jedi a sufficient “nexus with religion” (see Syndicat Northcrest v. Amselem, [2004] 2 SCR 551) to invoke freedom of religion protection?
The Guardian reports of a Jedi Knight refused to dehood in the workplace, and earned an apology from his employer. But unsatisfied, he intends now to sue for discrimination. The UK’s Equality and Human Rights Commission does not include Jediism in its enumerated list of religions, even though it is statistically the fourth most common religion in the UK & Wales, with nearly 400,000 adherents. (Canada, on the other hand, has a comparatively paltry 55,000 Jedi.)
At the very least we can be fairly certain that because the Jedi hood does not obscure the face, it would not violate Quebec’s proposed anti-niqab legislation.
A Trial to End all Terrorism
I recently presented this paper, A Trial to End All Terrorism: How the United States Could Have Won the War on Terrorism Before it Even Began, with the Trial of Only One Man at the 3rd Annual Law Student Conference held at Windsor Law.
ICC and the Sudanese elections.
For those intrigued by the International Criminal Court (ICC), the Sudanese elections may speak of things to come. As posted on Turtle Bay (a great Foreign Policy blog detailing the intricacies of the UN), the ICC & the UN are in a very awkward position:
As Sudan’s key political leaders vowed today to press ahead with the country’s first competitive elections in 24 years, the chief prosecutor of the International Criminal Court reminded the world how politically awkward the April 11-13 vote could prove: Sudanese President Omar Hassan al-Bashir, the first sitting head of state the court has charged with war crimes, may have his rule legitimized through a U.N.-backed election.
How to secede from Ontario
So what if Toronto became a province? Why would that be a bad idea? Regardless of the arguments for and against, Toronto can never become a province unless there is a lawful way to that goal, and there are several. In any case, separation will require a referendum in the city. If Toronto wishes to leave, Ontario will have to start good-faith negotiations. And even if the talks break down, there seems to be a constitutional way for Toronto to become a province without Ontario’s consent.
First, any decision to separate will require a referendum in Toronto. Just a vote in the city council will not be enough because the issue is so momentous. We have some legal precedent on this issue because the independence question was raised in referendums several times in Quebec. In the Reference re Secession of Quebec, the Supreme Court said that a successful referendum will give necessary legitimacy to Quebec government’s effort to secede. I don’t see any other way to give legitimacy to the effort of Toronto to form its own province.
Second, if the people of Toronto say yes to becoming a province in a referendum, Ontario will be under an obligation to negotiate with representatives of the city. This also follows from the Reference re Secession of Quebec. The difference, of course, is that Quebec has original sovereignty as a province, and the City of Toronto is legally a creature of an Ontario statute. But in essence, the same principles should apply: if a huge number of people in a large community want something, the government should listen and talk. Besides, Toronto is not just a city: it’s older than both Ontario and Canada. Its population and economic output are bigger than population and GDP of nine Canadian provinces. It’s a critical part of the country, and if it speaks loudly about its own destiny, Ontario has a legal duty to negotiate.
There are at least three possible outcomes of these negotiations:
1. The Legislative Assembly of Ontario passes a law granting unique and broad powers to the City of Toronto. The new authority should approach that of a province. The law should be a super-statute like the Ontario’s Human Rights Code. It should prevail over any other Ontario law. The problem with this solution is that Queen’s Park will keep the power to change or repeal this statute despite its “super” attribute. Unless there is way to bind the Ontario legislature with stringent amendment limitations like those found in the Canadian constitution, the super-statute will last only as long as the political will of the provincial parliament.
2. Ontario adopts a written constitution with amendment restrictions similar to those of the federal constitution. The new powers of the City of Toronto become a part of the Ontario constitution subject to amendment only in rare cases of clear consent of a great majority of Torontonians and Ontarians. I have no idea how to make this work. When Canada needed a constitution binding on its own parliament, it had to ask the UK parliament to pass a special law. It’s unclear how the federal parliament could play the part the UK parliament once played for Canada, because a future Ontario government could challenge that intervention on federalism grounds. How a province can adopt a binding constitution is a great topic for legal scholars, but I don’t see a practical way to do it.
3. Canada amends its own constitution making Toronto a full province. That’s the best way for the city. It will ensure more legitimacy and legal certainty so Toronto can focus on its future instead of endless litigation with Queen’s Park. Sections 42 and 38(1) of The Constitution Act, 1982 set the procedure for forming a new province: consent of the Parliament of Canada and legislatures of at least two thirds of Canadian provinces that together have at least half of Canada’s population. In my reading of the Constitution, Ontario’s consent won’t even be necessary, but if Ontario says no, then Quebec’s and probably BC’s yes will be required. Imagine the headlines: “Quebec helps Toronto secede from Ontario!”
Hopefully, it will not come to this, and the growing crisis in the relations between Toronto and Ontario will be resolved. But if Toronto is determined to get a special status to reflect its role in Ontario and Canada, it certainly has lawful paths to that objective. What’s needed is the political will on both sides.
(Post sponsored by AdviceScene)
Women in the Legal Profession
It’s 2010. Twenty-eight years ago, Canadian lawyers helped draft the Canadian Charter of Rights and Freedoms, guaranteeing, among other things, gender equality before and under the law. Canadian lawyers have also drafted provincial and federal human rights acts, and each of the law societies’ professional regulations, all of which prohibit public, non-governmental gender discrimination.
But like the old saying goes, “If you see smoke, don’t forget to check the fire station.”
Last year some classmates and I researched the issue of gender inequality in the legal profession. We were saddened to find that it does indeed exist, though it appears to be on a belated decline.
We interviewed two law professors at the University of Windsor on the issue. Here’s what they had to say:
To get involved in this important issue in Ontario, check out the Women’s Law Association of Ontario (WLAO), which has been “Speaking out for Women Lawyers Since 1919″. Or, help spread awareness and ideas online here, here, here, here or elsewhere.
And yes, “don’t forget to check the fire station” is not actually an old saying. However, once you abandon tradition you can find meaning in lots of new places.
Paradise By the Bay Street Lights
From Queen’s Law:
Discretion, law, and Rahim Jaffer
When the Crown dropped drunk driving and cocaine charges against Rahim Jaffer, everyone seemed unhappy and suspicious. There was a lot more unity of opinion than when a Canadian woman was stuck in Africa because Canadian officials thought she didn’t look like her passport photo. Both cases involved our trust in government, and in both cases government officials had a lot of discretion in making their decisions. Our law gives Crown prosecutors discretion in laying charges. The only constraint is that they must act in public interest. The popular mindset that justifies giving this leeway to the Crown is crime control. A different philosophy is due process, which emphasizes the rights of the accused, but this approach doesn’t seem very popular politically. The actual system is hopefully something between the two. In the Jaffer case, the public wants some accountability from the Crown but it does not seem ready to swing in the due process direction. Can we hold Crown prosecutors accountable for their discretionary decisions such as laying charges? It is very, very difficult, and the only way is to bind the Crown with more rules reducing their discretion.
A cop pulled over Rahim Jaffer, a Canadian politician, because Jaffer was going 93 km/h in a 50 km/h zone. The officer ended up arresting Jaffer who failed a breathalizer test. Jaffer was charged with drunk driving, speeding, and possession of cocaine. But eventually the Crown dropped the most serious drunk driving and drug charges. The judge famously told Jaffer, “I’m sure you can recognize a break when you see one.” Search Google News for “Rahim Jaffer,” and you’ll see what firestorm this case started in Canada. The public wants accountability from the Crown for dropping the charges against an influential figure. But can it get it?
Accountability means giving reasons for decisions. It’s pretty simple. If you give reasons for your decision, we can have a competent third party review your reasons to see if you made any mistakes in facts or rules. The third party must have the power to reverse your decision or to make you reconsider. With government decisions, the third party is usually the courts. If there are no reasons for a decision, it is very hard to know if the decision is wrong. It must be so obviously wrong that no reasons can justify it. It must pretty much be an absurd decision for a court to quash it without seeing any reasons. So if a decision maker doesn’t have to give reasons, there is very little accountability.
Truly discretionary decisions never require giving of reasons. Discretion means freedom from rules. Broad principles may limit discretion but if you set rules for someone in their decision-making they don’t have discretion any more. For example, the Crown has discretion in laying charges, but they must make decisions in public interest. That’s a broad principle. But there are no rules such as “you must lay a possession charge if the cocaine was found in the car,” or “you must never refuse to lay a charge to protect a politician,” or “you must lay a drunk driving charge even if the police officer broke rules in obtaining evidence.” The Crown’s discretion in laying charges implies it doesn’t have rules like that. Discretion means we trust they will do the right thing because they are experts, or because we are scared, or because it’s the cheapest way. But that means the Crown doesn’t have to explain its decisions or they wouldn’t really have our trust. That’s why the Crown’s discretionary decisions do not require it to give reasons. If you ask, they will say that their decision was in the public interest—and they are legally right. But try to challenge a decision on the basis of a broad principle like that.
If you give someone discretion because you want to be tough on crime, don’t expect them to be accountable. It’s impossible to have your cake and eat it too. When all the law requires is that the state make decisions in the public interest, it will be very hard to prove to the courts that a particular decision is not in the public interest. The broader the standard, the heavier is the burden to prove that it was not followed. How is the Supreme Court to judge the government on what it purports to do for our common good in some secret international circles? So they decided they couldn’t in the Khadr case. And so the courts will decide they can’t interfere in the Crown’s discretion in the Jaffer case if some naive person will try to challenge the decision to drop charges. Once the law gives someone discretion, the courts will generally stay away from poking their nose. So if you want accountability from the government, you should bind it with rules instead of giving it blank checks. That’s the due process attitude, but it lasts only until the next scare when the crime control mindset takes over. Let’s hope the two will be in balance.
(Post sponsored by AdviceScene)
Don’t jump to conclusions on Asian-perpetrated gun violence
Commenter Lynne rightly points out that even we perhaps jumped to conclusions in the case of Philadelphia law student, Gerald Ung. In January, we linked to Above the Law coverage of Ung, who had been arrested after shooting a man six times in the wee hours of the night. The story had described the incident as “(If true), not the first time an Asian-American law student in Philadelphia has gone on a shooting spree.”
This description perhaps buys into the stereotype of the crazed Asian student who suddenly explodes. Certainly, Virginia Tech is called to mind. Unfortunately, in Pennsylvania, the Ung case coincided with the sentencing of another Asian law student, Joseph Cho. In 2007, a schizophrenic and bi-polar Cho had shot at his neighbour’s front door because he had thought they were terrorists.
Above the Law has since redacted its article in the face of the possibility that the Asian-American shooter in this case has a potentially viable justification and legal defence. As details of the incident emerged, Gerald Ung has appeared less and less likely to fit the mold of the “typical”, mentally unhinged Asian.
First, security video that captures the shooting paints a picture far removed from the image of a crazed law student who snapped. The video shows Ung and a female friend being pursued by the shooting victim and a group of others. Ung is seen drawing the gun after the female friend is shoved – all the while, still retreating. When the victim rushes Ung, the gun discharges and continues to do so as both tumble to the ground.
After the shooting, reporters say the video depicts Ung remaining with the victim and calling 911 from his cell. As such, the video at least arguably portrays a justifiable act of self-defence rather than criminally condemned conduct.
Next, details of Ung and the victim themselves came to light.
On one side, a spokesperson for the victim’s family has said that the victim is considered a hero who stepped in front of the gun to save the lives of his two friends. He was a varsity lacrosse player who considered himself invincible. He has since been cleared of life-threatening injuries.
On the other hand, friends of Ung have also spoken out, insisting that the portrayal of Ung as a disturbed individual is simply inaccurate.
The Facebook group supporting Ung has 520 members. Ung’s fellow law students at Temple have also established a defence fund.
Nevertheless, Ung has been charged with criminal attempted murder, aggravated assault, carrying a firearm without a licence, possession of a weapon with intent, assault, and reckless endangerment. As the case proceeds towards trial, no doubt we’ll be hearing much more about both Ung and the victim. The preliminary hearing is schedule for April 16th. However, what is already clear is that this story is much more complicated than just another crazed Asian gunman.
Twitter Death Threats Against Obama
A recap of some of the recent tweets threatening President Obama with assassination:
After the second one was informed that the authorities had been alerted, he stated:
Nothing wrong?
As several commentators have noted, 18 USC Sec. 871 states,
Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.
Although electronic means of communication are not specifically mentioned, this was enough for Twitter to temporarily suspend at least one of the accounts involved. As for criminal sanctions, we’ll have to see how that part plays out, but apparently the Secret Service is investigating.
Tweet safely, friends.
