RSS FeedIn Memorandum: Wendy Babcock (1979-2011)
Law students like to think the have it rough. But some of us have it rougher than others, especially those of us that took the less traveled road to law school.
This evening The Star announced that Wendy Babcock was found dead yesterday in her home. Wendy would have entered her third year of law school at Osgoode Hall this Fall. She gained notoriety given her background as a homeless teenage prostitute (she would say “sex worker”) before entering law school.
Third-year students expressed frustration today after Toronto area articling position offers closed when many were still waiting for a job. Wendy recently asked me whether she should consider changing her name for law firm applications, because she was apprehensive about what law firms would think about her background. The Eye Weekly once did a piece on her entitled, “All that she can’t leave behind,” and I responded that her experiences were what made her special.
Knowing the advocacy work that I’ve been involved in she also questioned my career path, asking me why I wasn’t practicing human rights law.
Wendy will live on in memories, and through the social media footprint she’s left behind (her “memoranda”). Coincidentally, I just viewed this TED video earlier today:
Here are some of the sites you can find out more about Wendy:
Wendy Babcock - a site created post-mortem by her friends
And finally, here is her last note posted on Facebook, giving us some insight into a controversial subject currently being deliberated by the Supreme Court of Canada in Bedford v. Canada:
The monarchy in Canada
The recent royal visit offers a good chance to talk about monarchy in Canada. Besides just being nice Canadians, the people who greeted the newly married royal couple were often ecstatic, filled with genuine love for the two people, one of which has done nothing of significance while the other has never been heard of until recently. Despite a minimal role in Canada, the monarchy seems to enjoy support here, and the republican groups occupy the margins of our political discourse. But the history of the Canadian democracy is the history of overcoming the monarchy. All the good things we are proud of: the rule of law, democratic elections, and civil rights—emerged despite the monarchy and often out of conflict with the monarchy. Today, Canada’s democracy is the fruit of the monarchy’s defeat. The royals have zero power in this country. The Queen is Canada’s head of state only on paper, and many people don’t know or remember that this is the finale of a centuries-long fight between the people and the monarchy. But besides the remaining formal royal footprints on our political system, there are other, more substantial remnants of monarchy in the Canadian government and legal system.
The less monarchy we had in Canada, the more democracy we had. The history of Canada’s democracy is the history of pushing back the monarchy until it was reduced to a rubber stamp for our democratically elected legislators. It is the triumph of the Canadian democracy that the Royal Assent is a formality. Monarchs have not always been as likable as the young couple from London, UK. In 1776, the US Declaration of Independence called the British rule “absolute Despotism.” Five centuries earlier, English nobles forced their king into signing
Magna Carta—a historic document that granted civil liberties and limited the royal power. Magna Carta, a blueprint for modern democratic constitutions, came about in spite of the monarch. The barons basically fought with the king for their rights. That’s the role of the monarch in our democratic tradition: give up more and more power to the people as the royal vigour increasingly declines.
The era of the strong monarchy also represents the backward times of racism and religious discrimination. The monarchy itself remains discriminatory: no Catholics and no bloodline outsiders. If any Canadian institution used the rules of succession to the British throne, the public would ostracize that institution and the courts would probably stop the practice. But the Ontario Superior Court of Justice refused to apply anti-discrimination provisions of the Charter to the rules of succession to the British throne. In 2003, Justice Rouleau of the Superior Court essentially recognized the British throne and the Queen as a foreign institution governed by foreign rules inherited by our constitution (O’Donohue v. Canada, 2003 CanLII 41404 (ON SC)). Since we can’t change the foreign rules and we can’t change our constitution, we are stuck with the discriminatory foreign monarchy.
Some of the best things about Canada are the rule of law, civil liberties, and a democratically elected legislature. The view that the monarchy somehow links us to the English legal and political tradition that gave us all those things is quite absurd. We owe much of our legal and democratic tradition to England, but that tradition emerged in England despite the monarchy. Democratic rights and the independent judiciary were a concession by the monarchy in favour of powerful land owners, first, and the general public, later. Besides, much of our Canadian democratic tradition is completely domestic, and some was borrowed from the US. While we have two Constitution Acts, the UK doesn’t even have a written constitution.
When we see the royal couple on TV, we should remember that they symbolize an institution that fought long and hard against civil liberties, the rule of law, and a democratic legislature. That institution has completely lost its power as a result of this conflict. The people and the democracy have won. For some reason, we still allow the royals to live in palaces and act out a fairy tale at our expense.
But there are other dangers in the monarchy fetish, especially in its recent revival. Our government still retains some qualities of the monarchy. Generally, these powers of the Prime Minister and the Cabinet are called the royal prerogative. These are the powers that the monarchy has always enjoyed but that do not come from the constitution, an act of parliament, or the common law. These are basically the powers that the government has not surrendered to Parliament or to provincial legislatures. This is, for example, the power to have foreign relations. When the courts reviewed the Prime Minister’s decision not to request the repatriation of Omar Khadr, government lawyers argued that his decision was an exercise of the royal prerogative and not subject to Charter scrutiny. The courts have rejected this position (Canada (Prime Minister) v. Khadr, 2010 SCC 3).
Besides the royal prerogative, the government has a wide array of powers that give it discretion in making decisions. Discretion means the government is less accountable about the rules and reasons it follows in making a decision. Often we want to give the government discretion for the sake of efficiency, but the courts must be able to control the limits of discretion and to overturn obviously unreasonable decisions. This is how the rule of law works.
Fascination with the monarchy can produce or can be a symptom of a lower expectation of accountability from the government. We may defer to the government more and more. The danger is when we start treating the government as a benevolent ruler. Governments are made of people, and people are corrupted by unaccountable power. The history of democracy in the UK and in Canada was a history of people taking the power back from the ruler.
The ceremonial formality of the Queen also breeds constitutional uncertainty, for example, when the Prime Minister prorogues Parliament so often that some parts of the public genuinely expect the figurehead governor-general to refuse to cooperate. She of course, did cooperate and that was the right thing to do from the legal standpoint, but the potential for a crisis exists.
Do we even need a head of state? It is an inheritance from the Middle Ages, when every nation had a powerful ruler. Modern democracies have leaders but they should be professional officials hired for a limited term, and nothing more. Prime ministers should not generate patriotic fervor. They must be professional politicians who embody certain popular political platforms. Let’s hope that prime ministers cannot mess up too much, and fortunately we have the ballot and the independent judiciary to hold them and their ministers to account. A foreign figurehead doesn’t really figure in this equation.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Federal Securities Regulation: The Saga Continues
The concept of Federal Securities Regulation in Canada is perennial. It keeps on coming back, most recently via a reference to the Supreme Court of Canada. Pundits will talk, industry insiders will cross their fingers and hope for a favourable ruling, yet I doubt very much the story will end here.
It seems likely that securities regulation is permissible under various head of power in the Constitution. However federal regulation makes no sense if all of the provincial regulators remain in place. There is nothing to be gained gain by adding yet one more layer of regulation. The entire point of the exercise is to unify nationally so as to simplify. The real issue is whether the federal government can succeed in accomplishing this (whether through the Courts or through other channels).
Given the historical absence of federal legislation and the obvious connections with property and civil rights, it seems unlikely (in my opinion) that the SCC would declare, at the request of parliament, that suddenly all that was once provincial is now exclusively federal. This would be a massive restructuring of the federal-provincial power balance, something that the SCC would likely be very reluctant to “ordain” from the bench. Instead, the Court would likely hold that there is significant room for overlap. I wrote a research paper called “Constitutional Complexities Involved in the Implementation of a Federal Securities Regulation Regime in Canada: The View from 2009” that explores this topic in greater detail.
If this view is correct, then the real issue is political. It would be up to the Federal Government to negotiate with the provinces to ensure that regulation becomes unified and not multiplied. This would be difficult, to say the least. Arguably, with Ontario on-side the Feds could go “go it alone” and let the other provinces face the screams of protest from their local investment communities. Meanwhile, the possibility of the London Exchange buy-out adds yet another complicating factor to the politics. This might not be a “Canadian” industry for long.
My prediction: Regardless of the outcome of the reference to the SCC, this issue is far from settled.
Intervenors for Insite
IHRA joins International Coalition Intervening to save Vancouver Safe-Injection Site:
An international coalition of harm reduction experts — comprised of the International Harm Reduction Association (IHRA), the Canadian HIV/AIDS Legal Network, and CACTUS Montréal — has today been granted intervener status to appear before the Supreme Court of Canada to support Insite, Vancouver’s supervised injection site, against the Canadian government’s attempts to shutter it. [...]
Adding insult to injury, a 2009 provincially funded report acknowledging the benefits of safe-injection sites and calling for their implementation was recently revealed to have been suppressed for a full year by Quebec’s Minister of Health. Despite this climate of resistance, CACTUS has announced its intention to open a supervised injection site in Montréal later this year.
SCC on Funding Orders
Funding orders must be exceptional, says the Supreme Court:
‘For the first time the Supreme Court has ruled that superior courts are empowered to order governments to fund public interest litigation before statutory courts and tribunals. [...]
Brodsky suggested that “if governments don’t want the courts to attempt to deal with the problems that have been created by cuts to access-to-justice programs, then governments need to address the gaps themselves.”
She told The Lawyers Weekly “the possibility of obtaining an interim cost award can never replace the Court Challenges Program, or civil legal aid programs, that have been decimated in places like B.C. The limitations of the case-by-case cost-seeking approach are underscored by the decision in Caron in that the court confirmed that interim cost awards must be ‘highly exceptional.’ However, in reality, the circumstances in which the absence of public funding works a serious injustice are not highly exceptional. Such circumstances have become very ordinary in Canada.”’
Case Comment – Gomboc Decision, 2010 SCC 55
Here is a link to my website for a case comment on the Gomboc that will be published in an upcoming issue of RegQuest.
Enjoy the reading.
Julian Assange: Why the world needs WikiLeaks
Azar Nafisi, New York Times Best Seller Author Discusses Baha’is’ Human Rights Violations in Iran
Azar Nafisi is the author of the New York Times 117-week bestseller, Reading Lolita in Tehran. In this video she discusses the widespread violations of Baha’is’ human rights in Iran as well as her personal experience with Baha’is in light of the baseless accusations that they bear. Ms. Nafisi is not a Baha’i.
Ryan Venables – Case Comment: UFCW Local 401 v. Old Dutch Foods [2009] ALRBD No. 56.
Follow the case comment link to the full case comment done by Ryan Venables
Talk Local on Project Samosa
Talk Local on Rogers TV with Sonia Chin discussed Project Samosa, the terrorism arrests this past summer. The guest is Ibrahim Hindy, a Toronto resident and local leader, who shares the impact of the arrests on him and his fellow Canadians.
He claims that 74% of those arrested on terrorism in Canada have the charges dropped, and wonders whether this approach to anti-terrorism properly reflects our Charter values.
Blawg Review #278
Blawg Review is a blog carnival that rotates to a different law site every week, usually emphasizing a specific theme. Last week’s review was by R. David Donoghue.
August 23 is the “International Day for the Remembrance of the Slave Trade and its Abolition,” established in 1997 by the United Nations Educational, Scientific and Cultural Organization (UNESCO) during the 29th session of the General Conference (Volume 1).
The purpose of the day is to examine:
- the historical study of the causes and workings of the transatlantic slave trade,
- the clarification of the consequences and interactions to which it gave rise, and
- the contribution of the project to the establishment of a culture of tolerance and peaceful coexistence between races and peoples.
This year UNESCO has developed a documentary for this day Slave Routes: A Global Vision.
A companion document has has been released with the film, and will be referred to periodically throughout this post.
The Causes and Workings of Transatlantic Slavery
The origins of the Transatlantic slave route go back to the Iberian wars, between the Christian and Muslim kingdoms of Spain and Portugal. Both sides engaged in the enslavement of captives of war. As Slave Routes notes, the institution of slavery existed well before the Transatlantic route, both internally within Africa and to the Near East. But something different began with the European enslavement of Africans from the 15th c. onwards.
The first known African slaves sold in markets of recognizable European states was in Lisbon, Portugal in 1441, obtained from what is now Mauritania. The Portuguese had good reason for attempting to circumvent the Atlas Mountains and raiding the West African coast. In 1086 a black African dynasty originating from this area known as Al-Murabitun (Almoravids in English) provided military support and temporarily halted the expanse of the Christians. Soon after, Pope Alexander II provided the papal standard (vexillum sancti Petri) and an indulgence to the Christians in the conflict in 1063, making it officially a holy war that would culminate centuries later in the Spanish Inquisition.
The motivation for European slavery of Africans was therefore initially military, as an extension of the Western Crusades known as La Reconquista, or the reconquest of the Iberian peninsula by the Christians. In reality this term was probably too broad and an exaggeration, as many of the diverse peoples in the Muslim kingdoms of Spain and Portugal included native Iberians who had adopted the Islamic faith.
A permanent Portuguese fort was established at Arguin in 1448, and the 1452 Dum Diversas papal bull of Pope Nicholas V specifically authorized Alfonso V of Portugal,
…full and free permission to invade, search out, capture, and subjugate the Saracens and pagans and any other unbelievers and enemies of Christ wherever they may be… and to reduce their persons to perpetual slavery.
This established the basis for a racialized slavery, hereby unknown to Africa or any region engaging in African slave trade. As the motivations for slavery shifted from military goals to economic incentives, sheer greed resulted in a complete and utter destruction of African civilization and society. This is what made the Transatlantic slavery exceptionally devastating and worthy of particular scrutiny.
Web resources on the subject are expanding, archiving historic documents for amateur historians looking to deepen their knowledge on the subject. J.L. Bell has a post on Boston 1775 announcing American Slavery Debate, a new database of primary source documents.
Marco Randazza thinks slavery would be a pretty good alternative to some judicial punishments out there.
In some ways we’re all a slave to something. Those of us starting out in our legal careers are often a slave to the billable hour, or a slave to making partner. Norm Pattis is eying some of the pro bono work big firms are doing and wondering if they can spare him a partnership. Ronda Muir gives some tips to young lawyers on how to be a better lawyer by improving specific behaviours. Social media might boost a career, but Adrian Dayton cautions on a guest post at Above the Law that it takes time and dedication to get true returns.
If we don’t make it seems like we’re all likely to move back in with our parents. Stephanie West-Allen discusses these millennials on IdeaLawg. Scott Greenfield just sort of bashes them. Jordan Furlong thinks law firms should pay more attention to a workplace trend:
…a daydream about the courage to quit a job that treats you with less respect than you deserve… As Daniel Gross explains in a Newsweek commentary, “the poor labour market and workers’ antagonism toward employers and customers are actually connected”
Slavery means different things to different people. James T. Harris quotes Alan Keyes, who describes the experience of slavery as a guarantee of shelter, clothing and a job. “Socialism,” and Obama, is a form of slavery, if you buy the Keyes line that government-dominated largess is an infringement on freedom. Blunt Politics gives us more black Republicans who claim that real freedom comes through independence from the state, which they liken to the slave plantation,
This is not the land of guarantee, it’s the land of opportunity… but when you say racism is the problem, you put the power for your future in someone else’s hand.
My take is that the modern descendants of slaves are more likely to find guaranteed food, shelter and clothing in prison. The U.S. has the highest incarceration rate in the world, and African-Americans are disproportionately affected for a variety of reasons. I always wonder why Keyes doesn’t talk more about that, because it seems like race is the problem. Or part of it, at least. If nothing else it makes confidence and belief in the system difficult for minorities in the U.S. Abdul Hakim-Shabazz has his own doubts about police on the Indiana Law Blog after the David Bisard case, where an intoxicated on-duty officer struck and killed a biker and somehow had the charges dropped.
Law enforcement is not always right. James Morton thinks Col. Patrick Parrish is wrong about Omar Khadr. Confessions are only valid if they are free and voluntary. Threats of gang rape in prison usually vitiate that consent.
Eric Lipman reminds us about Terry Nichols in prison, not notable for being African-American, but rather for his role in the Oklahoma City bombing. Seems he’s not too happy with his food in prison due to the lack of insoluble fibre which doesn’t give him regular bowel movements. Seems the judge doesn’t give a…
Consequences and Interactions of Transatlantic Slavery
The most immediate consequence of the Transatlantic slavery was the dominance of European powers in the world. Western civilization as we know it today would not be possible without the hundreds of years of free labour, and the continued exploitation of natural and human resources. Operation Black Vote said,
The UK reaped huge profits for the despicable trade financing the developments associated with the industrial revolution. Britain made unprecedented profits and benefited enormously for the bloody trade. The legacy of racism remains with us some 400 years later.
Transatlantic slavery also created a system of oppression that places people of European ancestry on a higher level in a hierarchy maintained by what Slave Routes refers to as europhilia, ethnophobia and endophobia. It resulted in a far greater polarization of cultures in the world, as those attempting to restructure this hierarchy or seeking independence through an anti-colonial stance invariably adopted a counter-European philosophy. We see this pattern not just across Africa, but all of the colonized world, including the Middle East, across Asia, and Latin America.
August 23 was selected by UNESCO because it corresponded with the Haitian revolution, a major landmark in the resistance against colonialism and slavery. Slave Routes points out,
In the United States, the North America historian, Herbert Aptheker, has estimated that approximately 250 acts of sedition in all were organized by Afro-Americans to free themselves from slavery during the history of that “particular institution” in that country.
These revolts existed throughout the Caribbean and the Americas, and were a far more compelling reason for abolitionism than any humanitarian or compassionate grounds. For more on the Haitian revolution and slave revolts, see Blawg Review #249.
Although the direct domination of the developed world by European powers has largely ceased, the exploitative relationship continues to this day and is a major source of civil unrest and political tensions in the world today.
I came across this poster the other day on Queen Street West stating that “Slavery wasn’t abolished in 1834,”
It’s an advertisement from The Body Shop, who have raised over a million dollars to fight sex trafficking through partnerships with ECPAT USA (End Child Prostitution and Trafficking) and The Somaly Mam Foundation. The greatest consumers of modern sex trafficking continues to be wealthy European and North American citizens.
The Morning Quickie shares a review of Not Natasha, a photo book documenting the lives of survivors of sexual slavery in Moldova.
The key thesis behind Siddarth Kara and Devin T Stewart’s Sex Trafficking: Inside the Business of Modern Slavery is not that different from the Transatlantic slavery,
…the enormity and pervasiveness of global sex trafficking is driven by the ability to generate immense profits at almost no real risk.
They suggest the most effective way to address the profitability of modern slavery is to elevate the risk.
Not For Sale | Cambodia from Not For Sale Campaign on Vimeo.
Michael Platzer of the U.N.’s Center for International Crime Prevention said,
…200 million people are victims of contemporary forms of slavery. Most aren’t prostitutes, of course, but children in sweatshops, domestic workers, migrants. During four centuries, 12 million people were believed to be involved in the slave trade between Africa and the New World. The 200 million — and many of course are women who are trafficked for sex — is a current figure. It’s happening now. Today.
The Not for Sale Campaign has a slavery map tracking incidents near you revealed largely through law enforcement. The campaign focuses on more than just sexual slavery, and in their 2010 “Stop Paying for Slavery Tour” uses supply chain monitoring programs and looks at various forms of exploitation and economic dependence that result in a de facto rather than de juris forms of slavery.
Or as Jason Mustian recently put it,
Ron Soodalter at the Huffington Post talks about The Slave Next Door, and reaffirms that slavery is alive and well today. He’s calling for California to pass the Transparency in Supply Chains Act. A Heart for Justice reviews the same book.
Bruce Reilly visits the Modern Slavery Museum focusing on agricultural workers. Actually, the museum visited him, because it’s on wheels,
Farmworkers in this country have been the most exploited group of folks since the Abolition in slavery in 1865. As one farm owner puts it, “Before, we used to own the workers. Now we just rent ‘em.”
Faces of Slavery from David Hepburn on Vimeo.
Those interested in learning more might want to attend the Global Forum on Human Trafficking in Yorba Linda, CA on Oct. 14-15, or a number of workshops being held in the UK by UCL.
My Fight Planet gives us an edited version of highlights from “Fight Traffic,” a Mixed Marital Arts (MMA) event raising funds to abolish slavery and human trafficking. Maybe we can do something like that over here, because MMA fights are coming to Ontario.
Not all sports are so philanthropic. Tom Kirkendall is following the Roger Clemens case. Meanwhile, Howard Wasserman is cheering speech at the Sports Law Blog. Lilian Edwards comments on the case of the anonymous star of BBC’s racing show Top Gear trying to reveal his true name to cash in on an autobiography. (Sorry, no hockey here this time).
A Culture of Tolerance and Peaceful Coexistence between Races and Peoples
Michael Lynk, one of my former profs at UWO and currently Associate Dean, has the 2009 Rand Memorial Lecture on SSRN, Labour Law and the New Inequality. The premise behind the paper is that poor labour practices that stem from global inequity leads to instability and civil strife, limiting both social capabilities economic potential of these communities. UNESCO is currently mobilizing a response for the Pakistan floods, an issue of global concern to avoid radicalization, militancy and religious extremism in the region.
An obvious prerequisite for the horrors of Transatlantic slavery was the development of racial ideology. Slave Routes notes one of the major obstacles to political independence in Latin America was persistent and divisive racial ideologies. The Human Genome Project and countless scientific studies in recent years indicate the biological impossibility of human “races,” yet the resurgence of eugenics around the world is quite disturbing.
But genes can be used in good ways too. The Innocence Project announces that after 30 years DNA evidence has proven a Virginia man is innocent of rape charges due to the pro bono work of lawyers at Wilmer Cutler Pickering Hale and Dorr LLP. Another recent exoneree, Michael Anthony Green, wants to become a paralegal to help others wrongfully accused.
Speaking of wrongfully accused, Christine Corcos reports that Wikileaks founder Julian Assange was charged in Sweden for rape and molestation charges. Not so quick though, seems those charges were dropped in a hurry. Other charges of espionage against Assange are contemplated by Kenneth Anderson, but Julian Ku on Opinio Juris says in true spy form that they have to catch him first.
The most effective approach to peaceful coexistence might simply be for people to get to know and understand each other, a variation of the contact hypothesis used in sociology. But sociologists know that contact alone is not enough.
Eugene Volokh thinks Islamophobia is not quite irrational, citing a Time article indicating 46% of Americans believe Islam is more likely to encourage violence than other religions. Maybe, after several centuries of slavery and colonialism justified through religious practices, to restore some balance or equilibrium in global power. But sometimes, as Simon Fodden points out on Slaw, patience can be just as effective in the face of intolerance.
Volokh does note however that the accommodation laws invoked by many American Muslims today were intended for all religions and have primarily benefited Christians. And although Islamophobia is not a typical form of racism, it does rely on classic Social Darwinism thought.
By the way, Obama is not a Muslim, even though his middle name is Hussein (Can we get over this already?).
Slave Routes rejects the premise that racism is based on xenophobia or ignorance,
Racism can be defined as a process of suppression of the human being, based on socially selected phenotypical traits. This system classifies people according to their external physical characteristics and establishes a hierarchy of groups. In the long run, one of those groups defined as the superior race and the others are placed in inferior positions on the scale. Racism, therefore, is not a product of ignorance, the result of fear or concern over the ‘other’ or a natural phenomenon. [emphasis added]
Racism is more than a word, according to Marco Randazza. One word by a Dr. Schlessinger is what a lot of people are talking about right now. I’ll let you guess the word, but Norm Pattis weighs in too. One of his readers doesn’t agree though,
That someone as smart as yourself would join the oh so ignorant and completely off base “young black men say nigga, why can’t an old white woman say nigger?” team I hope speaks only to a generational divide and a complete lack of understanding of the context in which nigga is used and that it is a different word than nigger.
Where we do typically see racism manifested today is with immigration. Kevin Johnson at the Immigration Prof Blog discusses the 14th Amendment, which gives citizenship to the children of immigrants born in the U.S. Instead of repealing it, the real solution he proposes is immigration reform. Daniel Cubias points out how difficult it is to repeal an Amendment, and the unlikelihood of it happening, while J.E. Robertson considers it an attack on all Americans. Hegemomy notes that repealing the 14th Amendment used to be the talk of the fringe-right, and calls it the rise of the “Old South.” They heavy-handed tactics used in places like Arizona inevitably spill over into the general population, as evidenced by a case presented to us by Scott Greenfield.
What is needed is for group to have meaningful interaction with each other in a shared space and common goals to overcome deeply ingrained stereotypes and prejudices. It’s very difficult to hate others when you have extensive and nuanced encounters with a group that demonstrate the diversity found within them. For example, Martha Minow raises concerns that charter schools in the U.S. have the potential to create self-segregation.
Maybe that’s what the opponents of a new community center in lower Manhattan are really afraid of, that others won’t harbour the same hatred and animosity towards other that they do. Originally Park51 was appropriately called Cordoba House, invoking the city in Spain that was once a Muslim capital of a flowering multicultural and multi-religious literary civilization, extinguished by the same movement that led to the Transatlantic slavery.
Or maybe, as Jon Stewart suggests, Fox News is a terrorist command center (see here in Canada). Randazza doesn’t have much to say about it, aside from invoking through Sam Seder bull-size helpings of Terry Nichols’ favorite prison past-time:
Daniel Luban just calls it “The New Anti-Semitism,”
While activists like Pam Geller have led the anti-mosque campaign and the broader demonization of Muslims that has accompanied it, leaders like Abe Foxman have acquiesced in it. In doing so they risk providing an ugly and ironic illustration of the extent of Jewish assimilation in 21st-century America. We know that Jews can grow up to be senators and Supreme Court justices. Let’s not also discover that they can grow up to incite a pogrom.
It was through Cordoba that toothpaste and under-arm deodorant were introduced to Western Europe, and where literary works were translated freely between Arabic, Hebrew, Latin and Greek. It was in Cordoba that the Golden Age of Judaism flourished, giving birth to rabbinic scholars such as Maimonides.
Despite being one of the most tolerant and inclusive societies on Earth today, and all the lofty constitutional and human rights ideals, the United States has yet to accomplish the same culture of tolerance and coexistence that once briefly existed – in Cordoba.
Perhaps that’s something though we can all aspire to in Park51, if we’re willing to open our minds to it.
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Charon QC has his own little law review going on, and Jordan Furlong has six for the road. Next week’s Blawg Review is by Mirriam Seddiq, a criminal defence and immigration lawyer who posts on Not Guilty. Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
Canadians have a constitutional right to government-held info: SCC
According to a recent ruling of the SCC, the right to access to government records is now protected by the Charter. In a unanimous 7-0 ruling in Ontario (Public Safety and Security) v. Criminal Lawyer’s Association, [2010] S.C.J. No. 23, the SCC decided that if the information is needed to promote “meaningful public discussion on matters of public interest”, Canadians have an access right to that information, guaranteed by s. 2(b) of Charter under the heading “Fundamental Freedoms”.
The Criminal Lawyer’s Association (CLA) called this “an epic win”, that ensued after a decade-long battle for access to a 300-page review conducted by the OPP with regards to how the Hamilton and Halton police “handled the investigation of the 1983 murder of Toronto mobster Dominic Racco. Mr. Racco was shot and killed on December 1983 and his body was dumped on a Milton rail line. Two Hamilton men, Garaham Court and Dennis Monaghan were charged consequently by Hamilton Police. They had the charges stayed in 1997 after Justice Stephen Glithero of the Ontario Superior Court found evidence of “flagrant and intentional misconduct” by the Crown and Halton and Hamilton police in the process. An investigation by the OPP ensued that resulted in the review but it was not made public despite CLA’s request. The denial of the government to force the OPP to release the review was basically what fuelled the legal action taken by the CLA that was eventually granted the right to appeal by the SCC.
Although, the CLA found the ruling, an epic victory, it was not granted the right to access the information in the OPP review. The SCC, in turn, held that right to access could only be triggered when the information sought “is necessary for meaningful public discussion on matters of public interest”. In matters where the release of information may “interfere with the proper functioning of the governmental institution in question”, or where they are shielded by solicitor-client privilege, such rights are not guaranteed to the public.
For one, the SCC held that the review may contain information about the parties that are protected by the solicitor-client privilege. Furthermore, it was decided that CLA has failed to demonstrate that “meaningful public discussion of shortcomings in the investigation and prosecution could not take place without making the OPP report public”. Yet, the Supreme Court sent back the CLA’s request to the information commissioner for a fresh review. Yet, the ruling was described as “a baby step toward recognizing that access to information is a constitutional right” by Paul Schabas of Blake, Cassels & Graydon LLP.
Many countries including UK and US have similar laws implemented in their laws. Sweden, embedded access to information laws in their legislation in 1766 via their Freedom of the Press Act. The British Freedom of Information Act (2000), implemented such rights into the country’s legal system. In Canada, the Access to Information Act grants citizens access to records held by federal bodies and Freedom of Information and Protection of Privacy Act is the legislation that governs matters that come under the scope of the Ontario provincial government. The significance of this “baby-step” is of course in having the access to information right established as constitutional rather than statutory.
Read this article by Dan Michaluk and Paul Broad of Hicks Morley for further analysis of how this case impacts the government institutions.
Photo: Dominic Racco
