RSS FeedStripping of citizenship
Accused war criminal wins chance to keep citizenship
An appeal court has ordered the federal cabinet to revisit its decision to strip accused Nazi war criminal Helmut Oberlander of his Canadian citizenship.
Lobbyism
Ottawa tightening rules on lobbyists
Susan Delacourt and Richard Brennan write for the Toronto Star:
The federal government is cracking down on lobbyists working for Crown corporations and institutions such as the Toronto Port Authority and the Canadian Wheat Board. …
The crackdown comes after reports in the Toronto Star about lobbyists’ involvement in a $250-a-head Toronto political fundraiser coordinated out of the office of the president of the port authority, a position Natural Resources Minister Lisa Raitt held before running successfully for the Conservatives in 2008 in the riding of Halton
Belief in global warming protected from discrimination in UK labour law
Image From National Post via WattUpWithThat?
In the public policy debates over climate change, critics of strong action to mitigate global warming have often described proponents as “religious zealots”, and vice-versa. Moreover, since the concern over global warming has entered the mainstream consciousness, religious groups have been increasingly drawn to the discussion. Now, in the UK, a recent decision by an employment tribunal has actually equivocated belief in global warming with religious belief, for the purposes of workplace discrimination.
The case centers around Tim Nicholson, whose position as Head of Sustainability at Grainger, plc was terminated over what he claims was “contempt” for his beliefs about anthropogenic global warming. Nicholson alleged that his termination was due to his beliefs – which he argued should be protected from discrimination by the UK’s Employment Equality (Religion or Belief) Regulations of 2003.
In its decision this week, the employment tribunal ruled Nicholson would be allowed to bring his discrimination claim because Nicholson’s beliefs in global warming passed the tests formulated for “philosophical belief” for the purposes of the regulations:
From the tribunal’s ruling:
Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311 (3 November 2009)
In no way could this ever be taken out of context by anybody on either side of the larger debate…
Mistakes
Woman declared dead gets apology
Ms. Towle, a resident of Kamloops, B.C., was somehow declared dead by Human Resources and Skills Development Canada in September. “This is an unfortunate situation, which we are diligently working to resolve,” said Melissa Hart, a spokeswoman for the government branch. “We have been in direct contact with the affected individual and have let them know that the mistake has been fixed. We have issued a letter of apology and have initiated a detailed internal review of the situation.”
Access to information
Ottawa sued over censorship of Tommy Douglas dossier
Steve Rennie writes:
The federal government is being taken to court over its decision to withhold hundreds of pages, some decades old, in the Mounties’ secret file on Tommy Douglas.
Withler We Go From Here: The Future of Pension Reform
Western Law hosted a forum on pension reform this past Thursday, featuring community leaders, legal academics, and practitioners.
Pension Plan Basics
Prof. Robert Brown of the University of Waterloo explained some of the basics behind pensions.
There are two kinds of pension plans, defined benefit and defined contribution plans. A defined benefit plan provides flat benefits at a specified amount per year of work. They can present a pretty good idea of what to expect in terms of benefits, but if investments are hit hard it can decrease amount of funds, and they are often open to the vagaries of the market. A defined contribution plan allows you to determine how much goes into the plan, but you don’t know what you will get when you retire.
A multiple employer pension plan allows you to work for many different people, all of whom contributing to funds in your pension, and are common in the building trades. Single employer pension plans are far more common, and are usually what people think about when they refer to pensions.
A further refinement of types of plans are jointly sponsored pension plans, quite common in the public sector, where there is a shared risk with the government, who matches contributions to the plan. The largest of these Ontario Teachers’ Pension Plan, which is considered one of the better plans available, with a 12% matching.
There have been four major panels on pension reform across Canada in five different provinces. The Province of Quebec came up with a member funded pension plans which are defined benefit, but the benefit is not a guarantee but a target benefit. The plan sponsor just has to make a defined contribution, with very little risk to them, in a large co-mingled asset pool providing risk-sharing. Indexation of benefits, both before and after retirement is contingent on funding health of plan. They can be multi-employer or single employer, and is intended to stay funded at all times.
The Nova Scotia Pension Review Panel pointed out in their report early this year that existing rules inhibit innovation, and they liked the idea of some multi-employer and jointly sponsored plans in the province that a jointly-governed with share decision-making, but with some contingent benefits. They suggested joint governance and transparency would create a lot less regulation. They also suggested a province-wide plan by an independent agency that would be voluntary but open to everyone, and could take over some orphaned pension plans or fully managed ones, as a target-benefit plan.
Alberta and B.C. had a joint commission, the ABC Report, which also criticized the inflexibility in pension plans, and said there was a need for someone to champion pension reform. Plans should state how they will be governed and their funding policies. Both are starting their own defined contribution provincial plans that will be available to everyone, with co-mingled assets and pooling of risk, and expenses of less than 0.4% basis points. Defined target benefits and indexation would not be available unless the funding was healthy. You have to act to opt-out, but it is not mandatory. An independent board would do the investing, similar to the Canada Pension Plan.
Prof. Brown worked for the Ontario Expert Commission on Pensions and made similar recommendations, stating that the rules under the Pension Benefit Act and Income Tax Act stifle innovation. He said it was a good idea to co-mingle assets because you get lower administration costs, lower investment expenses, can hire in-house expertise, and invest in some new types of plans, and pool some of the risks. The size they are considering are in the magnitude of $10 billion. If there was shared responsibility for the plan, they could have a lot less regulation. He suggested they should have consultation with retirees, which are not normally considered part of the plan, and provide more information more often. It could be used by single employers, but there would be co-mingling of assets, through an Ontario pension agency or one of the large existing plans like Ontario Teachers Pension Plan (OTPP), OMERS, or Hospitals of Ontario Pension (HOOP). Management fees would be kept down.
If none of this works, they would consider expanding the Canada Pension Plan. The similarity in findings between all of these panels suggests that there might be some merit behind the recommendations.
Looking for an Alternative
Mitch Frazer, a Partner at Torys LLP and adjunct faculty at UofT specializing in pensions, continued the discussion, focusing on the creation of a supplemental pension plan. He joked that pension law was a bit like the Maytag repair-person – people sit around and ask you questions without understanding what he does. Then suddenly because of the economy pensions are a big topic with considerable media attention.
He saw two major portions for reform – trying to fix the system in the way described by Prof. Brown, but also looking at alternative solutions. A lot of politicians are interested in this as well, and he noted that Glen Pearson and Doug Ferguson were in attendance.
Frazer provided some background behind pension alternatives. Canada’s aging population is foremost among this. By 2031, over 25% of the population will be older than 65, and only 13% of the population was over this age in 2005, almost a doubling of the aging population. There is also less participation in occupational pension plans, anything not a CPP, by private sector employees. Pension plan participation is just over 20% in Alberta and B.C., 25% in Ontario. As people are getting older and need some form of pension plan, there are less people contributing to them.
A lot of employers are terminating plans, or not offering it at all. His clients do not approach him these days about creating a new pension plan. The decline in the stock market has resulted in diminished retirement funds, so there is a decrease in personal savings rate coupled with record-high debt.
There have been some initiatives to address the problems, including the provincial reviews of legislation mentioned above. The Federal government has also initiated consultations on the federal regulatory framework, and there is increased commentary by professionals and academia. But only Quebec has been successful in considerably revising their pension plan, and they continue to revise it on an annual basis to keep abreast of changes, leaving all the other provinces behind. The one positive thing out of the economic crisis is that everyone is now focusing on pension plans, similar to the mid-90s and the focus on CPP reform.
The objectives of reform would be improving retirement income security and enhancing pension coverage. Pensions are going down, and we need to address that halt and figure out a way to prevent it from going further down. We can take advantage of economies of scale by pooling assets, and benefit from the management and expertise in larger plans top reduce administrative burdens and costs. We need to improve benefit portability and reduce risk and uncertainty.
The details of a supplemental plan are difficult to list, because there is no ideal plan, it is to be custom tailed for everyone. But a lot of the discussion around a supplemental plan is going to be what the features are about. There are some ideas of what it could consist of. There could be automatic enrollment of employers and employees, with an opt-out option. If the employer opts out, an employee could still participate by contributing. There could be an option for self-employed individuals to opt-in, or not. A minimum earnings threshold for eligibility, so the plain does not catch people with no discretionary income. All these features provide flexibility for the type of coverage offered.
Some of the possible features for contribution and participation include allowing employees to transfer the value of their current pension plan to a new plan, to provide some portability. You could allow an employee to continue to contribute to a plan even if the employer discontinues or terminates the pension plan. There could be a minimum contribution rate, with an option for additional voluntary contribution beyond that.
Governance and administration could also take different forms. It could be governed by an expert board with full transparency, so that participants would have confidence in the management of money. Confidence in the plan is essential. The reason why CPP works is transparency and their ability to provide confidence that their managed properly. Alternatively, some cost savings might be realized by a fully governmental body controlled plan with no options for contributions, even though it would compromise flexibility. Reducing administrative burdens by direct payroll contributions might work, but how do you deal with self-employed individuals? Efficiency comes with trade-offs.
The role of government in an alternative plan is also debated. They could the legislative and regulatory framework for operation of the plan, and probably should. They could provide investment at the initial stage to ensure a successful launch, or put out a tender for private bidders so that it doesn’t cost the government anything. But government involvement might also be needed to create confidence in the public.
Some of the criticisms of the alternatives are that since participation would not be mandatory, people would out and choose not to participate at all. Most people don’t have extra money. Even worse, employers could participate and then drop out of it when there is a recession. They could use it as a recruiting tool during good times, and lost it during bad ones. The plan may not require employers to match employee contributions, which reduces one of the key benefits for employees and encourages they to save.
If based on a defined contribution model, there is a big risk during a downturn of not getting the returns would would want. Although RRSPs can be held out as an alternative benefit to those without pension plans, there are enormous benefits that those excluded from pensions are missing out on as well. Some argue that creating a pension is the responsibility of each individual, and people should be able to make their own decisions about retirement.
Perspectives from the Community
The panel also included some comments from community members, to provide some perspectives from people who would be affected by pension reforms.
Janis Mark, a local teacher in London and President of the local chapter of the Congress of Black Women pointed out that with all the living expenses, it’s difficult for the average person to put away money. Many people get older and then realize they haven’t saved as much as they would have liked, and they wonder, “Is it too late for me?”
She also noted that most of what is being considered by the other panelists wouldn’t even affect our generation, it would be for our grand-kids. But this is also why for many citizens this is too much of a headache to figure out, and they don’t want to even worry about it.
Robert Sexsmith, a local retiree, added that workers everywhere feeling pressure. Governments have advocated responsibility in name of economic realism or competitiveness, but the reality is that the “war against pensions” has received less attention than it should.
People complain about taxes, and they complain when it rises. They understand wages. But pensions baffle us, and the implications of pensions is not something we understand.
Even before the recession it was clear that pensions were under the gun. Retirement benefits interfere with the labour market’s flexibility, and the willingness of people to take low-wage jobs. There is even serious discussion about raising retirement age to 75, and many of these people do not want to work.
Tax reforms not enough, and tax concessions don’t work because retirees are not paying taxes. The labour movement has argued for immediate improvements to old age security for this increasingly vulnerable population. He believes that nationalizing all private pensions would be a first step, because they are almost always underfunded, unlike public sector.
A Human Rights Perspective of Pension Reform
Michael Lynk, currently Associate Dean (Academic) at UWO, addressed the human rights and equality issues and dimensions of pension issues, which are very much becoming in the forefront in Canada and the world.
The Organisation for Economic Co-operation and Development (OECD) has produced reports and documents relating to the pension issue. So has the World Economic Forum (WEF), with a report looking at scenarios to 2030.
All Western societies are facing the same types of demographic and financial challenges, with a greying and shrinking workforce, with less resources. In Canada 2/3 of our workforce will not have a pension plan.
There are three major reasons why pensions are becoming topical in Canada:
- Charter issues and human rights legislation does apply to pension plans
- Age discrimination is becoming more prevalent in litigation
- Pension issues already play a discreet role in advancing human rights, especially in the area of sexual orientation
We already have an extraordinary human rights Canada. According to Lynk, we probably have the most advanced human rights system anywhere in the world, with major breakthroughs in gender issues, race, family status, and sexuality. This is something to revel in. Even Europe laws on human rights is still about 5-15 years behind us.
However, one of our major deficits has been in age discrimination. Most of the case law has focused on mandatory retirement. Virtually every case at the Supreme Court of Canada through the 90′s were unsuccessful, based on the “lump of coal” trade-off. Retirement allows others to progress in society by making room for others, and was an exception in respect to other human rights cases. Most of the cases also assume a declining ability with older age.
Unions did have the resources to fund further litigation, but just weren’t interested in it. They often had seniority clauses that they felt provided adequate protection. Same-sex benefits cases at the tribunal level started to side-step the stance taken by the Supreme Court, and by the late 90′s the Court started to agree with them. This was one example of how litigation was able to advance interests for these types of benefits.
But the court was unwilling to apply these broader tests developed in this period for disabilities to age discrimination cases, despite the 1999 B.C. v. BCGSEU ["Meiorin"] case that said we have to make human rights standards higher. The test in Law v. Canada imposed a higher and more difficult threshold in respect to Charter litigation.
A more recent case in N.B. v. Saskatchewan Potash dealt with the term “bona fide pension plan,” and whether the appropriate test was Meiorin or Law. The decided with the more modest standard, and said the differential standard used in N.B. did not offend the Charter.
Although Lynk was discouraged that the Court has left age discrimination behind, there are a range of questions that need to be asked on how we structure our pension plans. He was pessimistic in the way age discrimination has been treated in the past, but he was optimistic that the Court or legislatures were going to catch up and enforce a more broader, enlightened, and liberal view towards age discrimination. It would be impossible to keep building a higher silo of other human rights, and keep out other forms such as age discrimination out of it.
He reached this conclusion because:
- Average age in Canada is steadily increasing. This cohort of aging population is the most educated in our history, but also most healthy, and some will want to continue to work.
- Pension benefits are rising to the forefront. There is a huge amount of money involved in this, and it will continue to be an important policy and litigation issue. The sheer volume of cases will eventually force the issue.
Lynk pointed to one upcoming case before the SCC, Withler v. Canada, dealing with supplementary death benefits, but with the potential to provide a wider interpretation for pension benefits. Survivors of spouses receiving benefits would decrease by 10%, and the question was whether it is discrimination if the benefits are decreasing as people get old. The trial judge ruled against claimants, and the B.C.C.A. decision upheld the decision. The dissent held that it was a s. 15 violation on equality, and not justified by s. 1, because an improper distinction was made.
The decision is expected some time in March 2010, and will likely be published about a year from now. Even though the case is a small and discreet issue, it could determine the direction of age discrimination for future cases to come.
Visitor visa fairness
When visa’s rejected, where to go?
Nicholas Keung writes for the Toronto Star:
A grieving son in China rejected for a visitor’s visa to Canada for his mother’s funeral. Guests from the Philippines turned away at the border for a Toronto wedding. A group of Anglican priests from Myanmar refused entry for a missionary event in Vancouver.
Currently, these rejected visitors to Canada – 200,000 yearly – could do little else than pay another $75 for a new visa application, which can involve costly travels to a Canadian visa post in another city or country.
Former airline hijacker, Windsor law graduate
Former terrorist wants to be lawyer
John Goddard writes for the Toronto Star:
Parminder Singh Saini, 46, blames youth and naïveté for his role in a violent airline hijacking 25 years ago in his native India and says he is rehabilitated.
Mr. Saini was admitted into Canada in 1995 on a fake passport. A few months later, the authorities declared him a national security threat and ordered him deported. As he was fighting this order, Mr. Saini completed a BA at York and a law degree at Windsor. He has already finished his articles. Mr. Saini’s case is now before the Law Society of Upper Canada.
“Over the course of the last 15 years, (Canadian) courts and tribunals have declared that he is a danger to the public and security in Canada and that he shouldn’t remain,” law society counsel Susan Heakes told the hearing this month into whether to accept Saini’s licence application to practise law.
AG Ont. Chris Bentley Speaks on Human Rights
The Attorney-General of Ontario, Hon. Chris Bentley, spoke to students at the University of Toronto on the issue of human rights.
Min. Bentley did a podcast interview with us previously on a similar subject. Human rights tribunals are likely to become a hot issue in the next provincial election, given that Tim Hudak has suggested he will campaign on having them scrapped.
Min. Bentley cites the Dresden case, and explains how human rights are the foundation of our society, even for those citizens we have neglected and abandoned abroad.
Video of his talk at UofT below, with an intro from Omar Alghabra:
Athanasios Hadjis Rules in Lemire v. Warman
In the high profile case between Marc Lemire and Richard Warman, the Canadian Human Rights Tribunal has refused to apply s. 13 of the Canadian Human Rights Act, which stated that hate messages also affected,
…a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet…
Tribunal chair Athanasios Hadjis said,
Since a formal declaration of invalidity [of Section 13(1)] is not a remedy available to the Tribunal, I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him
The complete decision can be reviewed here (I’m reading it now):
| HTML |
Off the hook? Not necessarily – Mr. Warman will likely seek judicial review. And the civil actions still exist for defamation, as well as much more rigorous Criminal Code provisions, will still attempt to regulate Internet activity.
This paper by Alexander Thesis, commissioned by the Attorney General of Canada, comes to a different conclusion – the provision is rationally connected with minimal impairment.
Here’s a scorecard of the outcome of judicial reviews of CHRT decisions:
| 2004 | 2005 | 2006 | 2007 | TOTAL | |
| Cases referred | 139 | 99 | 70 | 82 | 390 |
| Decisions rendered | 14 | 11 | 13 | 20 | 58 |
| Upheld | 6 | 1 | 0 | 0 | 7 |
| Overturned | 0 | 0 | 2 | 0 | 2 |
| Judicial review withdrawn or struck for delay | 1 | 0 | 1 | 0 | 2 |
| Judicial review pending | 0 | 1 | 1 | 7 | 8 |
| Total challenges | 7 | 2 | 4 | 7 | 20 |
Updates
Commentary by various personalities, both for and against, available here.
Terrence Watson points out that it’s only the penalty that was deemed unconstitutional, not the provision itself, and Big City Lib points out it will have limtied effect on future cases.
Problems finding rental housing?
Rights commission targets `blatant discrimination’ in rental-housing market
There’s obvious discrimination in rental housing, says the Ontario Human Rights Commission’s annual report released yesterday, identifying the problem as a key area that needs immediate intervention.
A Duty to Protect
Abousfian Abdelrazik, Omar Khadr and Suaad Hagi Mohamud all have something in common — they have faced, at one time or another, the federal government’s indifference to their intolerable circumstances.
Our national legal community is not keeping silent. The Canadian Bar Association recently called upon the Harper government to accept the August 14th decision of the Federal Court of Appeal that upheld the ruling of Justice James O’Reilly of the Federal Court of Canada. Justice O’Reilly had ordered the government to seek Omar Khadr’s repatriation from the U.S. military prison in Guantanamo Bay.
With an abundance of highly publicized cases of Canadian citizens detained abroad and subsequent government inaction on their plight, is it not time for Parliament to legislate a ‘duty to protect’ — a duty for government to protect the interests of Canadians detained in foreign jurisdictions?
—–
Abandoning duty in the name of security
By Ihsaan Gardee, The Ottawa Citizen
August 4, 2009
The lingering saga of Abousfian Abdelrazik almost seems too hard to believe — a Canadian citizen in virtual exile for six years in a distant land, shadowy involvement of intelligence services and a violation of the rights of a Canadian citizen under the Charter. Coupled with the recent announcement that the Security Intelligence Review Committee (SIRC) will conduct a probe into the role played by CSIS — Canada’s enigmatic intelligence service — in Mr. Abdelrazik’s arrest, imprisonment and alleged torture overseas raises, once again, the thorny issue of balancing civil liberties, human rights and due process with national security.
For many of us, knowing we hold the Canadian passport is more than enough to naively convince ourselves of our inalienable rights as citizens. Yet, for Abdelrazik and those who faced similar ordeals, that reliance was quickly betrayed by the reality that any sense of security conveyed by citizenship is imaginary.
Abdelrazik’s story now joins the ranks of the cautionary tales of Canadian citizens detained abroad and abandoned by their government. Maher Arar was one of them. His ordeal paved the way for a full public inquiry, and Canadians learned about his suffering and the acts and omissions that led to his detention and torture. Not long thereafter surfaced the accounts of Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin that put into question the government’s claim that this was a one-off event and not part of a pattern of systemic failures by government officials and security agencies.
For Abdelrazik, it took a Federal Court order to finally compel the Harper government to bring him home. The government’s delays, obfuscations, and cruel games were finally put to an end.
Now, thanks to intrepid journalism, the commitment of social justice organizations such as those involved in Project Fly Home, and the decision of federal justice Russell Zinn, we know some of the frightening details of Abdelrazik’s ordeal.
We know Canadian security officials operated behind the scenes to have a citizen detained in Sudan without the knowledge of government ministers in Ottawa. Moreover, Canadian diplomats in Khartoum were kept in the dark about Abdelrazik’s detention until three months after his arrest. When Sudanese government representatives ominously warned in March 2006 that military intelligence would create a “permanent solution” for Abdelrazik if Canada did not act to bring him home, Ottawa remained shockingly indifferent.
These troubling revelations all point to a stark deficit in accountability and transparency, and a shirking of responsibility by government and security officials to uphold the rights and safety of a Canadian citizen. They also demonstrate the government’s misuse of the “national security” argument as a means to thwart a citizen’s right to return and right to due process.
The lack of definitive action by the Canadian government illustrates the crux of Abdelrazik’s case and those of other Canadians such as Omar Khadr or Huseyin Celil: the fundamental absence of a governmental duty to protect Canadian citizens detained in a foreign country. Unlike in the United States, a formal duty to protect has not been legislated or enshrined in Canada. It urgently needs to be.
Without such a duty, detained citizens are left at the mercy of foreign jurisdictions even when no evidence exists, as in Abdelrazik’s case, to justify their captivity. The government is then able to rationalize its unwillingness to take the necessary action on a citizen’s detention, as Crown lawyers aptly demonstrated in recently filed arguments with the federal appeals court on the Khadr case.
Similarly, in the case of Celil, a three-month window of opportunity to repatriate him when he was originally detained in March 2006 by Uzbek authorities — prior to being deported to a Chinese prison where he remains in solitary confinement — was ignored or missed by the government. To their credit on this particular file, the government has since been more active in raising the issue of Celil’s detention to their Chinese counterparts.
In 2006, Justice Dennis O’Connor’s report from the Maher Arar inquiry called for critical changes to the way our security agencies and government officials conduct themselves in the arena of national security. The demand for greater accountability and oversight was unmistakably clear. Yet, more than two years after the release of these reports, at a cost of millions of taxpayer dollars, we have only glib general assurances from government that these recommendations have been enacted without any reporting on specific implementations. Meanwhile, over the course of many months, Canadians watched with utter dismay at the treatment meted out to Abdelrazik.
As famed civil liberties advocate Clarence Darrow once said: “True patriotism hates injustice in its own land more than anywhere else.” Indeed, Abdelrazik faced an unconscionable injustice at the hands of his own government that should never have been allowed to transpire.
Perhaps we may never be able to fully undo the damage, but Canada can act now to ensure these sordid events are never repeated again.
Ihsaan Gardee is executive director of the Canadian Council on American-Islamic Relations (CAIR-CAN).
