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No Note-taking in Court
Just when you thought the G20 couldn’t get even more ridiculous.
Susan Clairmont of the Hamiton Spectator:
Everyone is allowed to take notes in court.
Period.
But the other day a Toronto justice of the peace decided to make up his own rules. He banned “note-taking” in his Etobicoke courtroom where bail hearings were being held for G20 protesters.
It was the latest — and most ridiculous — in a series of bizarre steps taken by court officials to build a big fat wall around the whole judicial process for accused demonstrators.
So much for an open and transparent court system. So much for accountability.
What’s at Issue with Omar Khadr?
Lawrence Martin at The Globe:
At issue is not whether Mr. Khadr is innocent or guilty of killing an American medic during a firefight in Afghanistan in 2002. For argument’s sake, let’s say he’s guilty. Let’s say he knew what he was doing as a 15-year-old, that he had not been brainwashed since he was 8 by his al-Qaeda father. Let’s say that his action in the firefight was unprovoked, that prison-guard reports that he is well-behaved and salvageable are hogwash, and that he is basically rotten to the core.
Even if this were all true, any self-respecting society that believes in the principles of fundamental justice would not respond to his case the way Canada has. Omar Khadr has been held eight years without trial.
Parkdale Defends G20 Protesters
Riali Johanesson, a lawyer in Parkdale, tells how she was arrested by police for being on the scene,
This is the first time in my life I’ve been so afraid of the police.
Parkdale is not within the fenced-off area for the G20.
No Pardon for Karla Hamolka
No matter how good she scores on LSAT Karla Homolka wont be able to gain admission to law school until at least 2015.
With the passing of the new Bill C-23A, Karla Homolka, the ex-wife of the infamous Scarborough rapist, Paul Bernardo, will not only be unable to apply for a pardon but also wont have her law school application go through!
Federal Bill C-23A, Limiting Pardons for Serious Crimes Act, in June 29th, those “convicted of a serious personal injury offence, including manslaughter, who received a prison term of two years or more” will not be able to apply for pardon until at least 10 years past the end of their sentence. According to Lawyers Weekly the bill was rushed through Parliament to prevent Karla Homolka from being eligible to apply for a pardon on July 1st. Rumors abound that on her path to getting her life back on track, Mrs. Homolka is interested in getting a law degree in Ontario.
Lucky for her, she wont have to face the dreadful and demoralizing 1L exams for at least another 5 years thanks to Bill C-23A.
Humans only
If you read Arthur C. Clarke’s 2001: A Space Odyssey or saw the film, you must know who Hal is. Good. Keep that in mind while reading this. So… South Korea “deploys robots to detect and kill intruders.” I don’t want to be a scaremonger by just waving Hal in your face. Let me give you two reasons why robocops, or battle robots, or judge robots for that matter are bad from the legal standpoint.
First, robots follow programs that cannot predict all real-life possibilities. Robots lack that uniquely human ability of discretion. The best a machine can do to emulate discretion is to generate a random number. A grenade-launching machine exercising discretion would be like you loading one round in a revolver, spinning the cylinder, and pulling the trigger. Yes, it is called the Russian roulette. Especially, if you point the gun at your own head or at an “intruder.”
Second, a robot is not accountable. It doesn’t care if you appeal and have its decision overturned. If the reviewing body sends the case to a human for reconsideration why use the machine in the first place? And sometimes, the case will be moot, especially if the robot’s decision involved using live fire.
Law assumes human actors. Our entire legal system and tradition is based on this premise. Law doesn’t micromanage because it routinely delegates to human discretion. Sometimes it doesn’t strike the right balance—as with the law of street protest in Canada, but I’ll go for unsophisticated humans in uniforms over armed robots any day. Human discretion rests on a thick layer of experience, learning, feelings, values, and responsibility. If the state is to make decisions affecting our fundamental rights and freedoms, only its human agents should have this power. No robocops, please.
(Post sponsored by AdviceScene)
Assault by Bubble Blowing
More G20 footage:
This video shows a police officer at the G20 protests in Toronto threatening to arrest a protestor for blowing soap bubbles (“If one of those bubbles touches me, it’s assault”) and then leading the protestor away, presumably for the aforementioned “offense.” If the goal of the police at the G20 was to act pissy and escalate minor incidents into major ones in order to assert their authority, mission accomplished. If, on the other hand, their mission was to de-escalate, keep the peace, find rapport, and celebrate the democratic right to protest, this officer is an abject, total failure.
Being Black in Toronto
Kwame McKenzie talks to Steve Paikin last night on being black in Boston, London, and Toronto.
Kwame McKenzie is a Senior Scientist within the Social Equity and Health Research section of the Centre for Addiction and Mental Health. He is also the Deputy Director of Continuing & Community Care in the Schizophrenia Program, a Professor in the Department of Psychiatry at the University of Toronto, and a Professor at the Institute of Philosophy Diversity and Mental Health, University of Lancashire.
He’ll be on The Agenda for the rest of the week.
Never Take an Unemployed Lawyer to a Spa
From Time Magazine:
My mom is not a master of subtlety. So when she said, five different times, that the only thing she really wanted for her 65th birthday was to go away to a spa for her first time, I was able to riddle out that she wanted to go away to a spa. So I got us a reservation at the Lake Austin Spa Resort, one of the top U.S. spas, according to Condé Nast Traveler. But when I called to tell her about her present, she paused and said, “Just the two of us?” I did not know it was possible to creep your own mother out. Panicked since I had already made the arrangements, I offered to bring my sister Lisa. Then Lisa, who is an out-of-work lawyer, started making a spreadsheet of all the activities we would do. At the spa. If you’ve never seen a spreadsheet filled over and over with the words spa appointment and yoga, then you don’t know how desperately we need to turn this economy around.
New Brochure on Righteous Among Nations
Earlier this year I pointed out how in the Western context hatred towards Muslims and Jews are usually linked, meaning someone harbouring hatred to one group is more likely to hate the other as well.
The natural conclusion I advanced was that the two groups should work collaboratively to fight hatred against them all.
A British group called Faith Matters has developed a new brochure, pointing out some of the roles Muslims took on during the Holocaust in protecting the lives of Jews.
The narrative of Muslim individuals in different contexts, including Albania, Tunisia, Morocco, Turkey, Croatia, Bosnia and Herzogovnia, help illustrate the role that many individuals played in opposing Axis forces.
There’s even a story of a contemporary Muslim lawyer living in Palestine, Khaled Mahameed, who has founded the first Arab Holocaust museum in Nazareth called The Arab Institute for Holocaust Research and Education. Mahameed believes the political backdrop of the Holocaust is an important component for Arabs to understand in order to foster greater dialogue between the two groups.
The intent behind the publication is to promote greater understanding and cooperation between the two groups,
Today, unfortunately, xenophobia and fear ‘of the other’ still continue to plague societies and the United Kingdom is not immune to these issues. The caricaturing of communities continues in some quarters and the lessons of history are not learnt. Yet, history should teach us and guide us so that we preserve the stories of our common humanity and social links which should not be forgotten. Furthermore, these stories should not be physically or mentally shelved as though they have no significance in the modern world. If anything, they have a greater significance today then they would have had 10, 20 or 30 years ago.
The Righteous Muslims booklet shows us that there are many stories of positive Muslim and Jewish interaction, even at the darkest moments in history. It shows a common bond and a link between people of two faiths who believe in the compassion of God and in the sanctity of life. Whilst the politics of the Middle East may block such stories out of the public narrative, there is a duty on us all to ensure that they get their rightful place in our social and educational narratives.
Of course there are some misgivings about the brochure already, with some expressing misgivings that the brochure glosses over Muslim involvement in supporting the Nazis.
But that’s a narrative we already hear enough of, even on full-page advertisements in Canadian newspapers.
This brochure provides a more nuanced perspective, demonstrating that people of a global faith could be found on all sides of the political spectrum, thereby avoiding gross generalizations and stereotypes of normative relationships between the faiths.
Another recent initiative that could help foster better relationships between these communities is a project by Robert Harush, an Israeli businessman from Ashkelon who has decided to renovate a major mosque in France. He’s doing this despite living in Ashkelon during Operation Cast Lead, and even having a rocket land in his house.
There are other great resources that expand on these complex relationships during WWII such as the PBS documentary and website, Among the Righteous, based on a book by Dr. Robert Satloff, Among the Righteous: Lost Stories from the Holocaust’s Long Reach into Arab Lands. The Faith Matters brochure was also originally modeled off Satloff’s book.
Watch the full episode. See more Among the Righteous.
Satloff claims that the reason why these stories haven’t been told for so long is that Jews didn’t look hard enough, and Arabs didn’t want to be found,
Somewhere over the past 50 years it became toxic in Arab societies even to recognize this wonderful act of humanitarianism.
Here’s a video by Dr. Satloff telling the story behind his book:
Supremacy of God and the Canadian Charter
Did you know that the “supremacy of God” is Canada’s founding principle? Read the Canadian constitution, if you don’t believe me. This is the preamble to the Canadian Charter of Rights and Freedoms: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law …” Recently, a Quebec Superior Court Judge Gérard Dugré relied on these words to stop the Quebec government from blocking one private school’s religious curriculum. This caused secular activists to call for removing the reference to God from our Charter.
Secular Canadians took offence. To them, Judge Dugré’s novel use of the preamble appears to make non-religious Canadians second-class citizens. His ruling may also look like an attempt to cut the ancient Gordian Knot of whether God exists in one judicial stroke. Of course, this cannot be the meaning of the preamble to the Charter. But the words about God do not have to be empty rhetoric ignored by the courts either. A reasonable interpretation of the preamble treats “God” as a power that is superior to the state and that have endowed Canadians with rights and freedoms secure from the state.
I do not know if judge Dugré’s decision is correct. Nor am I trying to answer this question here. But regardless of his ruling, there is a reasonable interpretation of the entire preamble to the Charter.
First of all, the purpose of the Charter is to protect rights and freedoms of the people against the government. This principle should imbue every interpretation of this constitutional document.
One of the fundamental methods of testing legality is tracing claimed powers and freedoms to their source. Many state agents’ powers come from or are allowed by the sovereign—the federal parliament or provincial legislatures. Police powers, for example, come from statute or are allowed by statute because they pre-existed legislative intervention. No state power can exist without parliamentary consent or an explicit constitutional grant. Even “Crown prerogatives” such as international relations powers exist only until legislatures wish to withdraw them.
But people are not agents or creatures of the state. We pre-date the state.
To reserve some freedoms to the people, to protect them from the overarching sovereign, and to ensure the legality of freedoms, you need a source other than the sovereign itself. Otherwise, the sovereign would be free to take freedoms back from the people. This source cannot be the state, it cannot be a person, and it cannot be a corporation. The humanity have always imagined a source of power and freedom completely independent of the state. It’s been called different names but a common one in English is God. Why not? It’s good enough to symbolize the idea that fundamental human rights and freedoms are not a gift from the sovereign. We have them by birth or naturalization, or symbolically as a gift from “God.”
Second, to emphasize the idea that the state and our legislative sovereigns cannot expropriate the independent rights and freedoms of the people, a concept of supremacy is necessary. Not only is the source of our freedoms and rights independent from the state, it is also supreme to the state. This concept leaves not a shred of doubt about any ability of the government to repossess our freedoms.
For these two reasons, “Canada is founded upon principles that recognize the supremacy of God.” It is to protect our freedoms and rights from state intrusion, which is exactly the purpose of the Charter. The rule-of-law part is equally critical, because unless there is an institution that deeply believes in these principles and holds the state in check, the words alone are not worth much. Thank God for the independent judiciary and the independent legal profession. Yes, essentially: thank God for lawyers.
According to the Black’s Law Dictionary (8th ed.), a preamble may help interpreting its enclosing document. The dictionary cites Den v. Urison, 2 N.J.L. 212 (1807), a New Jersey case: “… in case any doubt arises on the enacting part, the preamble may be resorted to to explain it, and show the intention of the law maker.” If our courts turn to the preamble of the Charter to inform their interpretation of that document, they should treat the words “supremacy of God” not in a religious sense but as an affirmation of Canadians’ rights and freedoms secure from and independent of the government.
(Post sponsored by AdviceScene)
Ottawa shoots itself in the foot in the Khadr case
There is a dramatic development in the Khadr story. A Federal Court judge ordered the government to do something about Omar Khadr, and the government has seven days to comply. Justice Zinn handed down his judgement three days ago, on July 5, 2010, so if we are still a country of the rule of law we should hear from Ottawa around Monday or Tuesday. Although the judge didn’t order the government to ask the US for Khadr’s return, his repatriation may be the only logical outcome of the chain of events that Justice Zinn set off in Edmonton on Monday.
Omar Khadr, a Canadian citizen, is the last Western citizen remaining in Guantanamo Bay. The US authorities allege he threw a grenade that killed a US soldier in an Afghan firefight in 2002 when Khadr was 15 years old. In Guantanamo, he was subjected to physiological techniques to facilitate interrogation. The US denied Khadr the usual legal process rights. Canadian officials interrogated Khadr in Guantanamo and turned the findings over to the Americans. The Supreme Court of Canada (SCC) ruled that the Canadian government breached Khadr’s rights to fundamental justice by participating in the tainted US process against Khadr. SCC left it to Ottawa to choose a remedy for the breach of Khadr’s rights.
In response to the SCC decision, the federal government sent a diplomatic note to the US Department of State asking that evidence from Canadian interrogations be excluded from proceedings against Khadr. The US essentially refused.
No doubt the federal government believed the diplomatic note discharged its duty to Khadr flowing from the government’s breach of his rights. Not so fast, said Khadr’s lawyers. According to them, Ottawa’s decision to send the note concerned Omar Khadr’s fundamental rights as a Canadian citizen. The government was about to affect Omar’s liberty and possibly survival, when it chose to send the note instead of asking for his repatriation. Government decisions affecting an individual to this extent require at least some notice and an opportunity to be heard. These are principles of natural justice and procedural fairness. Justice Zinn agreed.
He held that the federal government breached Khadr’s procedural fairness rights when it failed to give him notice of its decision and to let him make written submissions in response. Khadr’s lawyers had specifically asked federal lawyers for notice and a chance to make submissions before the government made its decision. They didn’t receive any response to this request.
So the government breached Khadr’s constitutional rights again. Justice Zinn held that since the diplomatic note had no effect, it did not cure the first breach. He ruled that the federal government would have to try something else, this time with notice and an opportunity for submissions from Khadr’s lawyers—to remedy the second breach. But since the diplomatic note proved ineffective, the government may not resort to it again. It will have to propose another remedy. That is what Justice Zinn ordered the government to do within seven days—to propose a new remedy of the original breach of Khadr’s s. 7 rights. Of course, the government would have to comply with procedural fairness requirements in proposing this new remedy. After receiving the government’s notice of proposed new remedies, Khadr’s lawyers will have further seven days to make written submissions. Then as soon as “reasonably practicable,” the federal government is to act on its chosen remedy.
The curious aspect of this case is that if the government had respected Khadr’s procedural rights in making its original decision to send the diplomatic note, this case would probably not even have come up. The Americans would dismiss Canada’s note, and Khadr would be left in Guantanamo without any legal recourse in Canada. But since Ottawa had breached his rights once more in making its decision to send the note, it found itself pushed up against the wall in court again—this time without the option of sending a lip-service letter to the US. And what remedies other than a request for repatriation can the federal government come up with now to get Justice Zinn off its back? I am not sure there are any. And whatever your position on Khadr, the federal government has only itself to blame.
(Post sponsored by AdviceScene)
