Legal Reform – Law is Cool http://lawiscool.com The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.6 1338880 Personal Choice v. Systemic Issue http://lawiscool.com/2014/06/20/personal-choice-v-systemic-issue/ Fri, 20 Jun 2014 19:45:37 +0000 http://lawiscool.com/?p=3737 By: Farrah Rajan

Justice Minister Peter Mackay claims that women are not applying to be judges because it may take them away from time with their children.  Although his comments were made in reference to the lack of diversity on federally appointed courts, the mindset can be applied to all people in the workforce, regardless of gender or profession.

After reading about his comments, I was both confused and offended because:

  • He did not address the scarcity of visible minorities (which is an issue that deserves its own post)
  • Not all women are, or will be, mothers
  • Classifying all women as mothers is sexist
  • He is blaming women for the lack of diversity

Thankfully, we have people like Avvy Yao-Yao Go willing to take a stand to dispute such ignorance.  The problem is that as long as the Mr. Mackay’s are running the show, achieving an optimal work-life balance will remain elusive for the majority of women and visible minorities across Canada.

As Omar He-Redeye points out, “many visible minorities in Canada still believe that a profession is one of the more stable routes to successful lifestyle.  Perhaps nobody told them that the chances of them making partner are even worse than their peers”.

I would like to think that I will be able to achieve great things in my future career as a paralegal, but as a visible minority female, I wonder how much I will need to sacrifice in order to do so.  In the past, I have compromised my health and personal relationships in order to fulfill work obligations.  More recently, I took a stand to protect my mental health and it resulted in me being forced to take an unpaid leave of absence.

Jordan Furlong thinks “work-life balance is a [legal professional’s] personal choice and responsibility”; I think it is a systemic issue that needs to be dealt with.

 

]]>
3737
“Woman’s custody battle highlights problems in legal aid system” http://lawiscool.com/2014/06/01/womans-custody-battle-highlights-problems-in-legal-aid-system-by-dhanvir-sohal/ http://lawiscool.com/2014/06/01/womans-custody-battle-highlights-problems-in-legal-aid-system-by-dhanvir-sohal/#comments Mon, 02 Jun 2014 03:05:52 +0000 http://lawiscool.com/?p=3618 By: Dhanvir Sohal

 

The article deals with a vital issue in the Canadian legal system, the lack of providing legal aid to the people in need.

 

Who is entitled to Legal aid?
The article states that legal aid is only being provided to the very poor which is constantly resulting in large number of cases being self represented and is causing lengthier resolution times and worse outcomes for the cases. Similarly, the article discusses the case of an office administrator at a law firm, Rhonda Nordlander, making $40,000 a year and that amount being considered high for being eligible for legal aid. The applicant states that after paying high legal fees for her initial stage for divorce and custody of her children, she is insolvent by the beginning of this year. Thereby, she was forced to self-represent upon being denied legal aid by the courts.
What criteria is considered for granting Legal Aid?
Moreover, the article also explains the steps taken by the courts to deal with the issue of scarcity of financial resources available to the courts.

The courts are “triaging” the cases to distribute legal aid among the cases that needs it the most, assessing based on:

  1.  The complexity of the case
  2. Ability of the applicant
  3. Seriousness of the case and the impact of delay on the parties involved

By considering the criteria for “triaging” the cases, the judge in the present case decided that the applicant is intelligent enough to understand the complexity of the case and by this means is being able to self represent.

What is the impact of being self-represented?
However, the applicant opposes the above view by stating that it would be beneficial for her to have a legal representative as it would result in speedier resolution times and fairer results.  The studies advocate this, stating that even the most capable individual would feel overwhelmed when self representing. Aditionally, the applicant describes the results of self-representing as causing “post traumatic court disorder” to her, causing high stress and anxiety after court appearances. The studies also support this by stating that the post court appearance disorder is highly present in the self-represented cases involving personal matters, particularly the custody of the children.

Thus, the eligibility for receiving a legal aid being a subjective criteria, leads to high number of cases in need denied legal aid and being forced to self-represent. Consequently, the large number of cases being self represented results in higher resolution times, worse outcomes and causing high level of stress and anxiety to individuals.

http://www.thestar.com/news/gta/2013/10/09/womans_custody_battle_highlights_problems_in_legal_aid_system.html.

]]>
http://lawiscool.com/2014/06/01/womans-custody-battle-highlights-problems-in-legal-aid-system-by-dhanvir-sohal/feed/ 5 3618
“Harper’s way out should serve as a Supreme precedent” http://lawiscool.com/2014/06/01/harpers-way-out-should-serve-as-a-supreme-precedent/ Sun, 01 Jun 2014 19:15:45 +0000 http://lawiscool.com/?p=3591 Summarized by Paralegal student Michael Yen

“Harper’s way out should serve as a Supreme precedent “ by André Pratte, Special to The Globe and Mail, May 29 2014.

The aftermath of the conflict between the PMO and the Supreme Court of Canada has come to what appears to be a satisfactory procedural solution.

The conflict revolves around the failed appointment of the Right Honourable Mr. Justice Marc Nadon to the Supreme Court of Canada. The PMO’s appointment of Nadon, came into conflict with section 6 of the Supreme Court Act R.S.C., 1985, c. S-26 and was overturned by the Supreme Court.

In reference to an investigation conducted by the Globe and Mail newspaper, it was revealed that prior to the appointment of Nadon, the PMO asked for the Ministry of Justice to provide a short list of Supreme Court appointee candidates that would seem not likely to offer “judicial activism”. This prompted comments between the Supreme Court Chief Justice, Beverley McLachlin, and Prime Minister Stephen Harper. These comments have left the appearance of a deep conflict between the Supreme Court and the PMO.

The Federal government has now requested the provincial government of Quebec to provide a short list of candidates that would satisfy the constitutional requirements outlined in the Supreme Court Act. This has prompted some criticism that it is a precedent-setting request, and that the other provinces need to take note.
This request should be viewed as the solution to the ambiguous process of obtaining the short list of Supreme Court candidates. The process has always allowed for the Federal government to have “absolute discretion” in the appointment process of Supreme Court Justices. Obtaining the support and input of the provinces in making such an important decision, would instil greater belief in the Federal government in its relations with the provinces, especially with Quebec.

Also in doing so, the apparently damaged relationship between the PMO and the Supreme Court would be on way to a public relations recovery.

]]>
3591
Jonathan MacKenzie is this week’s top Social Media Student at Law (@JMacKenzieLaw) http://lawiscool.com/2013/10/15/jonathan-mackenzie-social-media-law/ Tue, 15 Oct 2013 15:59:46 +0000 http://lawiscool.com/?p=3557 Last week’s #CBafuturesChat was a discussion of the articling in Canada.  The focus of the talk shifted from Law School to recent grads, and with that, the conversation shifted to students at law instead of law students.

Coming to the front of the Student’s at Law last week was Jonathan Mackenzie, who just completed his articles. I sat down with him briefly to talk:

Q: As a lawyer who is just starting his career, what role do you see social media playing?

A: For me, the draw of social media is in the opportunity it gives you to brand yourself and establish yourself as an expert in a certain area. Prior to the emergence of social media, it took a tremendous amount of work and a certain amount of luck for a lawyer to build a solid reputation prior to emergence of social media – print publications were one of the only sources for brand building. I have been to many senior lawyers’ offices and seen newspaper and magazine clippings all over the walls. While print publications still hold their prestige today, social media has made advertising and brand building more accessible to newer lawyers that are just starting out. I am fortunate to be in a firm where I can be involved with business development and client acquisition processes and am excited to help my firm use social media, among other tools, to build our brand and ultimately, acquire more clients.

Q: You seemed really active and engaged in the twitter chat, have you participated in one before?

A: This was actually the first twitter chat I have been involved in. I have been interested in using social media to build a personal brand for quite some time but did not feel that I had enough to offer. Now that I am finishing my articling and becoming more involved with the business operations of the firm, I am able to begin my efforts in earnest. I haven’t had any formal training with social media but I do enjoy picking the brains of my colleagues who work with social media for a living to find out what tips and tricks they have for me.

Q: We saw more articling students and young lawyers show up, but not as many students who had yet to start their articles, do you have any advice for them on articling?

A: I would say that it is very important to find your “fit.” I know that this is a frustrating thing to hear for prospective articling students – I hated being told to find my “fit” when I was looking for articling. Having gone through the process, I can appreciate now that this was truly a very important piece of advice. I am not necessarily speaking about the type of work you will be doing, because I think it is almost impossible to know straight out of law school what type of law you want to practice. I am speaking about the culture of the firm and whether you can see yourself being happy there. Look for a place where you think you will be accepted and where you will be able to learn both about the law and about yourself.

Q: I noticed a couple of practicing lawyers from the chat spoke with you during the chat, and are now following you on twitter. Was growing your follower count one of your plans for the chat?

A: I got a chance to have some great interactions with some of the participants in the #cbafutureschat. This is one of the things I like about twitter – the ability to interact with large groups and use these interactions to connect with people you are interested in connecting with. Increasing my followers per se was not one of my goals for the chat, but connecting with interesting people in the legal field was certainly a goal of mine and I’m happy to say that this was accomplished.

]]>
3557
LSUC Publishes Articling Task Force Report http://lawiscool.com/2012/10/16/lsuc-articling-task-force-report/ http://lawiscool.com/2012/10/16/lsuc-articling-task-force-report/#comments Tue, 16 Oct 2012 18:39:17 +0000 http://lawiscool.com/?p=3503 This article was originally published on www.LFTI.ca

The Law Society of Upper Canada (LSUC)’s articling task force has released its final report on its proposed solution for what has been dubbed the “Articling Crisis” facing recent law grads in Ontario.  The report directly concerns current law students, new graduates of law programs, law firms, and those considering entering the legal profession.  Its main recommendation is the creation of a new Law Practice Program (LPP) — a blend of coursework and co-operative work placement — to co-exist with the current 10-month articling requirement.  If approved, the program would start in the 2014-2015 licensing year, and run for five years.  The full report is accessible here, titled Pathways to the Profession: a Roadmap for the Reform of Lawyer Licensing in Ontario.

In addition to writing the bar exam, law students in Ontario must currently complete a 10-month position as an “articling student” with a practitioner certified by the LSUC within three years of graduation to become a licensed lawyer.  Slow growth in articling positions has failed to keep up with the swelling number of graduates from law programs in Canada, and has left as many as 15% of law grads without an articling position.

A minority of the LSUC’s task force recommended abolishing the articling requirement altogether (for an interesting take on the issue, see Dean Lorne Sossin of Osgoode Hall, “Should Articling Be Abolished?” 2010).  Instead, they would prefer to see articling replaced with a two to three month-long transitional licensing program, consisting of online courses on both substantive legal issues, and business, professional, ethical issues.

The Report’s Main Recommendation: the Law Practice Program (LPP)

The LSUC’s report recommends the creation of an approximately eight-month training program to replace the articling requirement.  It would be composed of four months of training on specific competency areas, and a four-month co-operative work placement.

I. Training Program Component

The training component of the LPP will be delivered by one or more “third parties” who will deliver an approximately four-month (or longer) program on the “established competencies” currently contained in the LSUC’s articling goals and objectives.  These include professional responsibility, interviewing, advising, fact investigation, legal research, file and practice management, drafting, negotiation, and advocacy.  The LPP is also recommended to incorporate the use of practising lawyers as instructors or support staff.

The LPP will conclude some form of assessment or test, but that remains unclear.  One possibility is the creation of an in-person practical skills test, where candidates interview a client, negotiate, analyze an ethical problem, draft an opinion letter and write an affidavit.  In the words of the task force, “further analysis of this issue is required” (para 167).

II. Co-operative Placement Component

One of the goals of this co-op work placement is to help relieve access to justice issues in the country by making new legal graduates more available to work in high-needs areas.  The other aim is to keep a “practical work experience” component in the lawyer licensing process, which is one of the primary benefits of the articling experience.

It would consist of 17 weeks, or about four months’ work at a site that “meet[s] the goals of transitional training” (para 154).  The third-party deliverer appears to play a role in securing these co-op opportunities for its registrants, similar to post-secondary institutions who partner with employers to offer four-month placement opportunities.  The report does not specify how this would work.

Changes to Articling

The LSUC task force also included recommendations to reform the articling process.  Currently articling students’ progress in skills development during their 10-month placement is unmonitored.

For greater progress appraisal, the report recommends the creation of new documentation requirements for principals: a training plan, a mid-term evaluation, and a certification that the articling student is a “fit and proper candidate for licensing.”  The articling student must also contribute to the mid-term evaluation, and complete a final self-evaluation.  The task force postponed making recommendations on timelines, e.g. when students would choose to apply for articling positions or the LPP, and how this would fit with bar examination sittings.

Next Steps

The LSUC task force recommends that the two alternative requirements, articling and LPP, begin to coexist in two years — during the 2014-2015 articling term.  All currently enrolled law students who plan to graduate 2014 and later are affected, and may enrol in the LPP as an alternative to articling. Third-party LPP providers will have to be identified and approved.  The assessment measures used to test graduates of the LPP will also have to be crystallized.

Issues and Concerns

The report’s recommendations raise several important issues and concerns.

I. Increased Financial Burden on Law Graduates

Less articling placements are available in part because training a new law graduate is expensive.  Articling positions are traditionally paid, and the salary of a legal practitioner in training can be a heavy burden, especially on private firms of less than 10 lawyers.  The task force recommends that the LPP become an alternative to articling.  Who will pay for what will essentially become a post-graduate online training requirement?  Law graduates, after paying for a degree that isn’t enough to get them a job.

Furthermore, the report suggests that the co-operative work experience placement will be unpaid.  Increasingly, unpaid articling positions are offered to those unable to find paid positions.  Combined with the swelling costs of a legal education in Canada, this will only further burden law students with debt post graduation, and limit their options.  The LSUC task force puts financial responsibility for debt squarely on the shoulders on new entrants to the legal profession.

The problem is that heavily indebted law students may not be able to financially justify working on access to justice issues, working for vulnerable populations, moving to rural areas, or other areas that do not support high legal costs.  Students who work in those areas as part of an unpaid articling position or co-op term will quickly move on once their debts require repayment.

Does this justify abolishment of the articling and LPP requirement?  No, because quality concerns about the newest entrants to the legal profession should remain a primary consideration of any reform.  However, the LPP cannot be said to be a solution to access to justice issues in Canada when it only adds to the costs of legal education.

II. Introduction of a Two-Tiered Licensing System

Another concern mentioned by the report is the creation of a two-tiered licensing system in Canada, where some law graduates have a full 10-month articling opportunity with a law firm, and others have to pay for an online course and a four-month unpaid co-op placement.  Ensuring both paths remain consistent, and produce equally competent legal professionals, will remain a challenge over the next five years.

This challenge can be met by detailed evaluation methods that emphasize practical skills.  The quality and cost of the proposed LPP program remains to be seen, but there is potential to create a system that produces better legal professionals than it does today.  The existence of two programs will be temporary.  After a five-year pilot, I think it will result in the combination of a single result that combines the best components of the two.

III. Isn’t there a role for law schools?

The most surprising omission from the report was the brevity of the section on law school reform.  Let’s look at the problem from another perspective: students now pay to attend law school for three years, graduate, and then rely on law firms to offer them a paid 10-month articling term to learn all the practical skills they need to become lawyers.  Law schools have essentially discharged their responsibility to train legal professionals.  Along with the LSUC, up until now they have put that duty on private and public legal practitioners.  Private practitioners can no longer afford to train the increasing numbers of law students that schools are graduating.

These graduates, depending on the richness of their summer experiences, know how to study, but may never learn in law school how to negotiate, interview, draft legal documents, or advocate for clients.  This report provides law schools with an excellent opportunity to enrich their educational experience, by offering practical skills development courses (in person or online) that satisfy the demands of the LPP.  The LSUC task force has said it out loud: these skills can be taught outside of a firm.

Law schools will remain valuable as institutions of higher scholarship with opportunities to study legal philosophy under academic supervision.  However, most law students choose to attend law school to become lawyers, not academics.  Let’s hope Canadian law schools take up this opportunity to lead from the front.

Call for Action

What do you think?  Is this requirement enough of a change?  Who should offer the LPP requirement, and how should it be evaluated?  Or should articling be abolished altogether?  Comment here, tell the LSUC, contact your alma mater or current Canadian law school.  This may change the face of the legal profession in Ontario, and could be the beginning of changes across Canada.

]]>
http://lawiscool.com/2012/10/16/lsuc-articling-task-force-report/feed/ 4 3503
The Innovative Advocate: Canada’s Legal Future http://lawiscool.com/2012/09/29/the-innovative-advocate-canadas-legal-future/ http://lawiscool.com/2012/09/29/the-innovative-advocate-canadas-legal-future/#comments Sat, 29 Sep 2012 15:53:27 +0000 http://lawiscool.com/?p=3489 The way legal services are delivered in Canada is changing.  Increased competition and a demand for lower prices has pressured law firms to slow hiring and deliver their services more efficiently.  After finishing my first year at Queen’s Law I started thinking about how law students can help firms meet the demand.  It starts with an open-eyes look at where our industry is moving.

Lawyer blended with a computer and USB port

The reality is that corporate in-house clients are demanding routine process work be done for less, putting pressure on law firms to deliver their services faster with less overhead.  2012 also marked the first year that non-lawyers are allowed to own law firms in the UK, dramatically expanding the capital available for those firms’ investment and growth.

Here at home, lawyer-only firm ownership still reigns in Canada, but mergers with international players push our largest firms into ever-greater levels of competition.  Lawyers-turned-entrepreneurs in Canada are in turn growing their shares in the consumer market by launching online legal services.

New entrants to the market still haven’t quenched the demand for lower legal costs. Canadians face serious access to justice issues, and even middle-class litigants find themselves increasingly forced to represent themselves in court.

How are law students responding to these challenges?  Traditional not-for-profit work in legal clinics like Queen’s Legal Aid and Pro-Bono Students Canada is popular while in law school, but how many students continue their pro-bono efforts post graduation?  How does this solve the problem for clients who aren’t poor but still can’t afford legal advice?

I believe the change starts with how legal services are delivered.  I believe it starts by getting students thinking about innovative ways to bring the law to Canadians.

Law-students for Technology and Innovation (LFTI) is a student-run organization Nikolas Sopow and I created this year at Queen’s Law.  We’re passionate about finding better ways to deliver legal services.  We’re law students, but we’re not afraid of the changes coming to the Canadian legal scene.  Within three weeks we recruited four more executives to our team, and we’re still growing.  By 2015 we plan to have LFTI clubs at every law school in Canada.

Our projects this year are as diverse as our leadership team.  We’re hosting a speakers’ panel in Winter 2013 titled Technology on the Legal Frontier: Current and Future Ways to Practice Law.  We’re fundraising for computer literacy skills in Kingston by hosting a LAN party for video-game enthusiasts.  We’re blogging on the latest legal tech to hit app store shelves.  And we’re letting everyone know how the delivery of legal services is changing, so our classmates are prepared when they graduate.

If you’re a law student, consider starting a group like LFTI for your class.  Being prepared for the changing legal environment in Canada is about more than making a living as a lawyer.  It’s about making legal counsel affordable, providing greater access to justice, and ensuring Canadian firms remain competitive in the global market for legal services.

What areas of legal service delivery do you think could be improved?  How does legal education need to change in order to keep up?  Be creative, and ask tough questions. The innovative advocate is Canada’s legal future.

Ivan

]]>
http://lawiscool.com/2012/09/29/the-innovative-advocate-canadas-legal-future/feed/ 1 3489
Islamophobia in Canada: A Primer http://lawiscool.com/2012/02/08/islamophobia-in-canada/ http://lawiscool.com/2012/02/08/islamophobia-in-canada/#comments Wed, 08 Feb 2012 07:34:00 +0000 http://lawiscool.com/?p=3322 by Fathima Cader and Sumayya Kassamali

Ten years after September 11, 2001, the term “Islamophobia,” once largely obscure, has become all but inevitable when discussing contemporary politics. As Al-Qaeda and Osama bin Laden became household names, Western fear of the world’s 1.5 billion Muslims has also grown. Canada has been no stranger to this phenomenon. Despite its reputation as a haven of multicultural tolerance, one 2011 poll showed that 56% of Canadians believe Western societies are in “irreconcilable conflict” with Muslim societies. 40% of the 1500 respondents approved the profiling of airplane passengers who appear Muslim.  As Canada enters its seventh year of Conservative rule, how are progressives to understand and respond to this trend?

Islamophobia relies on characterizations of Islam and its adherents as uniquely prone to certain things, such as violence and sexism, and uniquely hostile to others, such as democracy and secular government. It includes discrimination based on perceived religious identity, such that non-Muslims, including Sikhs and Arab Christians, have also been targets of anti-Muslim violence in cases of “mistaken identity.” Meanwhile, Muslims in North America who do not appear to come from the Middle East or South Asia, such as Muslims of European or East Asian descent, have been less centrally targeted in this blurry overlap of religious and racial discrimination.

In this primer, we do not attempt to cover every instance of Islamophobia in Canada in the past decade. Rather, we provide an overview of its broad assumptions, particularly focusing on two themes that have proven central to discussions about Muslims: sexism and violence.

In offering this analysis, we stress that responses to Islamophobia must be placed within the context of Canada’s ongoing conservative political shift — from its increased military engagements around the world to its anti-immigrant policies at home, and from its vast cuts in social service funding to its ever-increasing levels of state surveillance. While numerous civil liberties and human rights organizations have reported on the rise of anti-Muslim hate crimes in Canada, we emphasize that Islamophobia is not just interpersonal: it is systemic. In fighting it, therefore, we must engage with the many other forms of oppression that also organize Canadian society.

Sexism 

Mainstream Canadian discussions about Muslim women generally exhibit an indefatigable insistence on “liberation.” This often-militaristic saviour complex, best demonstrated by the invasion of Afghanistan, requires a willful denial of the intelligence and resilience of Muslim women.

Yet Muslim women, in surviving and resisting the intersecting forces of oppression in their lives, suffer not from a lack of leadership, but of mainstream recognition. Thus, in opposing Islamophobia, we must engage with Muslim feminist leadership. These are women who challenge both mainstream stereotypes of Muslim women and comfortable liberal conceptions of free will. Recent controversies around the niqab (face veil) and Toronto’s Valley Park Middle School offer two instructive examples of leadership by Muslim women.

Niqab: From Quebec to the Queen 

In 2010, Quebec proposed Bill 94, which would deny essential government services, public employment, education, and health care to Muslim women who wear niqab. Proponents relied on the misconception that no woman would freely choose to wear a niqab. Moreover, they insisted that women who do choose to wear the niqab must be civilized into disrobing. They argued that by forbidding women from wearing certain clothes, they were in fact protecting a woman’s right to sartorial choice.

In response, Muslim women and their allies pointed out that the Bill would legislate a culture of paranoia around the small number of women who wear the niqab by forcing them to choose between their clothes and essential government services. Further, while many Muslim women do freely choose to don various forms of veiling, legislating shame around those who veil under external pressure only reinforces their marginalization, because Bill 94 would exclude those very women from public spaces.

For instance, the Right 2 Wear group, formed in 2011, stated that “We are tired of everyone — governments, our families, religious scholars, the justice system, our peers — being obsessed with what we wear. Muslim women and girls have the right to choose how we outwardly express our faith and religion.”

On the other hand, Bill 94’s supporters include Tarek Fatah, founder of the regressive Muslim Canadian Congress (MCC). In one moment of staggering cliche, he proclaimed, “I welcome the rescue of all Muslim-Canadian women.”  Fatah has also declared that the Ontario Court of Appeal “made a fool of the Canadian judicial system and values of gender equality” for allowing a  rape victim to testify against her alleged attackers in court in the clothes in which she felt most comfortable, namely her niqab.  For all his concern for “gender equality,” Fatah refuses to acknowledge that he infantilizes Muslim women by constantly policing how they dress.

Yet however trite Fatah’s language may be, it is effective. By using liberal rhetoric as a vehicle for conservative ends, Fatah appeals to people from across the political spectrum. Thus, he has become a media darling, the go-to Muslim mascot for sexist and racist policies.

2011 was also the year that Minister of Citizenship and Immigration, Jason Kenney, famed homophobe and anti-abortion activist,  banned the niqab from citizenship ceremonies. Kenney, whose contempt for the rule of law in immigration tribunals has already invited the condemnation of Chief Justice Beverley McLachlin,  harrumphed “I’m sure they’ll trump up some stupid Charter of Rights challenge.”

In January 2012, the MCC officially applauded Kenney for the ban. At that event, Raheel Raza, another MCC spokesperson, posed in a niqab only long enough to tear it off for Kenney’s benefit.  Kenney promptly used the photo-op as proof of “widespread” support. This disingenuousness is unsurprising, coming from a man who describes renowned environmental and First Nations groups who oppose tar sands development as “radical” foreign-funded saboteurs. Indeed, Kenney has managed to connect faux-feminism even with his rampant anti-environmentalism: he actively supports the Conservative-backed Ethical Oil project, on the basis that local tar sands are the only ethical alternative to importing oil from Saudi Arabia, because of its record on women’s rights.

Valley Park Middle School: A Guide on How to Liberate Young Muslim Women 

In July 2011, the Christian Heritage Party (CHP), the Jewish Defence League (JDL), and Canadian Hindu Advocacy (CHA) picketed the Toronto District School Board (TDSB), because it had allowed Muslim students to pray at Valley Park Middle School. The news went from a fringe story about extremist racists “fighting the Islamization” of the TDSB to front-page headlines when the media reported that the prayers were gender-segregated.

Public debate promptly shifted from Muslim lust for world domination to Muslim hatred for women. The liberal Toronto Star ran a column by Heather Mallick entitled, “Time for someone to speak up for shy young girls.”  Change.org’s Women’s Rights administrators, Shelby Knox and Alex DiBranco, disseminated a petition opposing the prayer arrangement created by a fan of far-right Dutch politician Geert Wilders (whose fan-base also includes Anders Breivik, the white supremacist Oslo terrorist). That petition has yet to have secured the support of a single Muslim women’s organization, least of all the Canadian Council of Muslim Women, whose name the Change.org website touts. In an email, DiBranco stated that “the petition itself has done better than many other actions we’ve emailed on,” missing the fact that prevalence of Islamophobia in North America is precisely what makes their petition possible and so popular.

Shortly thereafter, the CHA crowed on Twitter, “Thx to CHA, Islamist mysogyny [sic] in TDSB schools exposed. We hope once we liberate Muslim women from oppression, they’ll thank us.”  (The JDL, CHP, and CHA commemorated the tenth anniversary of 9/11 with a gathering at TDSB headquarters.)

Liberal or conservative, these positions are sexist. They assume that not only do Muslim women have no voices, their voices must — for their own good — be supplanted by those of their would-be saviours. In other words, these self-appointed saviours would rescue Muslim women not only from the male Muslim oppressors ever implicit in their lives, but even from themselves.

Accordingly, despite all the hand-wringing over the fate of poor Muslim women, public discourse failed to feature the perspectives or actions of the Muslim students at Valley Park. It is especially insulting to the young Muslim women — the so-called “shy young girls of tender age” — who bore the task of confronting the racist protestors’ hate, such as the anonymous Muslim middle-school students captured onYouTube footage  and on CityTV.

Yet female Muslim community organizers rallied together around Valley Park, as they do every day on the myriad of issues that impinge on the ability of all women in Canada to access substantive equality. From deputations at Toronto City Hall against proposed cuts to social service funding to community mobilizations to ensure shelters and schools are sanctuaries safe from the deportation-crazed Canadian Border Services Agency to classrooms across this country, from their homes and from their workplaces, these women are activists and community leaders who have amassed an awe-inspiring collection of histories and strategies.

Discussions about what gender-equitable prayer spaces would look like are ongoing within diverse Muslim communities. After all, it is Muslim women who have direct experience grappling with sexism in their prayer spaces and in organizing those spaces into arrangements that meet their needs. This work is deeply inspiring for the examples it provides of principled feminist solidarity. The courage and creativity of that work is entirely lost in a mainstream framing that persists in depicting Muslim women as devoid of strength or intelligence.

It is vital that leftists, when feeling flames of righteous rage on behalf of Muslim women (or other marginalized groups), do their research. For one thing, it is not enough to have allies, if our allies have proven themselves racist and sexist. For another, we need to acknowledge that the Muslim women most affected by the issue of the month were dealing with it long before the media ever picked it up, and that they will have already developed a diversity of perspectives and strategies.

Above all, if “solidarity” is to mean anything, we must remember to take leadership from marginalized voices, not space: feminism’s role is to facilitate, not liberate.

Violence 

In a nationally-broadcast interview with Stephen Harper that marked the 10th anniversary of 9/11, the Prime Minister warned that “Islamicism” — a word he appears to have personally coined — offers the greatest current threat to Canadian security.  (His office later clarified he was referring to the threat of Islamic militants.) Harper attempted to qualify his statement by saying his comments were not applicable to all Muslims; however, a decade into the seemingly unending “War on Terror,” his words come as no surprise to an audience accustomed to constant warnings about the impending Muslim threat.

Indeed the most instinctual aspect of Islamophobia is to associate Islam with violence. Accordingly, an awe-inspiring amount of popular and academic attention has been devoted to proving Islam’s supposedly unique propensity for violence, whether by pointing to Qur’anic edicts that preach jihad or to cultural proclivities towards irrational destruction. The global rise of geopolitical actors espousing ideologies of power that use the language of Islam has made these assumptions hard to shake off. From Iran to Iraq, Palestine to Kashmir, New York to London: what is it with these Muslims? Why do they always seem to be killing? Must we not defend ourselves in response?

It is worth noting that these claims are not limited to celebrated racists like Canadian writer Mark Steyn or US political commentator Daniel Pipes. The more palatable liberal version of this claim simply differentiates between the good Muslims and the bad. The vast majority of Muslims are peaceful — it is simply a rotten minority that threaten our freedoms.

Hence many Muslim figureheads (including mainstream leaders, not simply fringe groups like the Muslim Canadian Congress) regularly rush to condemn any global act of violence committed by Muslims, often explicitly dismissing the very Muslimness of the perpetrators. The Islamic Supreme Council of Canada responded to Harper’s remarks about “Islamicism” by demanding he apologize because “the actions of fanatics do not represent Islamic beliefs.” Muslim community leaders repeatedly reassure us that anyone who perpetrates “terrorism” simply cannot be Muslim, because Islam is a religion that preaches peace, compassion and respect for the sanctity of human life.

While this reading of Islamic edicts may have its own merit, it simplistically assumes that events in the world can be read at face value and are not the product of complex social and political factors. Acts of war declared by liberal capitalist states are rarely interpreted as the result of liberal ideology, but violence framed in Islamic language is regularly taken at face value as if it were exclusively motivated by religion — at best a tragically incorrect religious interpretation.

The only room for response left by such an approach is the promotion of “correct” religious interpretations (those that look comfortably peaceful and patriotic), and the acceptance of state involvement in policing the internal affairs of Muslim communities. The call for precisely such interventions can be found in reports by Canada’s Integrated Threat Assessment Centre (ITAC), a body created in 2004 to monitor a range of foreign and domestic threats to Canadian security.

In 2010, a declassified ITAC report argued that Canadian Islamists are building “parallel societies,” in which Muslim organizations “do not advocate terrorist violence but promote an ideology at odds with core Western values.” The report stated, “The creation of [these] isolated communities can spawn groups that are exclusivist and potentially open to messages in which violence is advocated… At a minimum, the existence of such mini-societies undermines resilience and the fostering of a cohesive Canadian nation.” Thus the key concern of this report is not Islamists plotting imminent attacks. Rather, we are warned that these domestic Muslims, although not (yet) violent, threaten the nation-building project of Canada itself. Hence the report argues, “Islamist social ideology appears to have gone unstudied”, and calls for greater government attention to be directed at how Muslims think, communicate, and organize their day-to-day lives.

It is important that we question what the accusation of isolation refers to here. Surely it does not mean the withdrawal of Muslims from all social life, since it is near impossible to live in Canada without some connection to a range of public and private institutions, participation in the economy, and interaction with members of an impressively diverse population. Indeed none of the groups described in the report advocate the building of self-sustainable, Muslim-only communes.

On the contrary, many directly invoke laws and regulations of the Canadian state in an attempt to participate more fully within it. This is evident in requests for Muslim legal codes to be permitted for consideration within family courts, and for private Muslim schools to receive government funding comparable to schools of other religious denominations. The perceived threat to the nation is therefore not that Muslims are outside the reach of state power. Rather, it is about ideas that are allegedly incompatible with the dominant ideology of Canada. The threat is the possibility of thinking a certain way, one seen as resulting from particular Islamic teachings.

Left Response 

Yet the critical question for leftists is not whether or not the Qur’an in fact advocates violence, or what particular forms of religious practice (for example, arranged marriages or sanctifying martyrdom) will result in threats to Canadian security. Such questions should be entirely irrelevant to our response to Islamophobia. Instead, a critical left should make a two-fold response.

First, we must refuse to allow the dominant powers in society to define violence. Violence is not and will never be the sole prerogative of Islamist groups, whether theocratic states like Iran, political parties like Hamas or loose international networks like Al-Qaeda (each of which, it must be pointed out, have different relationships to violence themselves).

In turn, we must constantly draw attention to the forms of structural violence that give rise to the many conflicts that now fill our world. What historical injustices have led to our current political moment? What is it that allows outrage at the Taliban exploding roadside bombs in Afghanistan but celebrates Canada’s role in the NATO bombardment of Libya as laudatory humanitarianism? How can the prolonged refusal by the Canadian government to bring Omar Khadr, captured at the age of fifteen, home from Guantánamo Bay be considered anything other than an egregious violation of human rights, comparable to actions so often used to stigmatize repressive states of the Muslim world?

This response often meets accusations of simplification: all violence is surely not the same. Certainly it is not enough to respond to the claim, “(Some) Muslims are violent” by arguing, “Others are violent too!” What is important here is not to simplistically equate all forms of violence, but to reject the assumption that “Islamic fundamentalism” is a uniquely violent threat that characterizes our contemporary world.

Although many progressives readily acknowledge other forms of religious fundamentalism to compare alongside Islam, we must also insist on naming the violences committed by those who claim secularism, liberalism, and democracy as their ideologies. And as a settler-colonial state born out of the genocide and land-theft of its indigenous population, a process that continues to this day, it is precisely this foundational violence that makes the Canadian state itself possible.

At the same time, we must pay attention to the specificities of groups broadly characterized as violent. It is because Hamas is not Iran and Al-Qaeda is not the Toronto 18 that categories such as “Islamic fundamentalism” or “Islamist violence” are meaningless explanatory frameworks.

The second part of a critical left response to statements like Harper’s must be a constant awareness of what the state implements in the name of our protection. Inciting popular fear about the threat of radical Islam does more than simply portray Muslims in a certain way, or blur distinctions between diverse movements framed as Islamist. It also elicits a specific response.

As we have seen, the state’s response has meant a dramatic increase in the surveillance and policing of Muslim communities across the US and Canada. A recent Mother Jones report found that since 9/11 the FBI has spent billions of dollars creating a vast network of paid informants tasked with infiltrating the Muslim community in the US. Similarly, in Canada local mosques have for years been recordingincreased attempts at CSIS recruitment, with undercover informants sent to record sermons or tempt mosque-goers with cash in exchange for insider information.

Harper’s declaration that he intends to bring back parliamentary measures that give police greater powers to arrest and detain in cases of alleged terrorist threats should cause us all great concern. Above all, we must build alliances in ways that reflect a principled opposition to the discriminatory treatment of a few in the name of our collective security.

Conclusion 

In many ways, the examination of Islamophobia is a study in contradictions: Muslims are at once subject to acute scrutiny and to willful erasure from public discourse. Perceived as inherently dangerous to a rigidly static conception of “Canadian values,” the Canadian government uses the active presence of Muslims (alongside other stigmatized communities) in the public sphere to justify ever-increasing state intrusion into the private recesses of all our lives.

Simultaneously, state and pop culture obsessions with “unveiling” Muslims for the barbarians that they supposedly are remain grounded in deeply gendered biases. The foil to the frightful Muslim male is the silent Muslim woman, she who awaits liberation at the hands of Canadian armies and legislation. In its very racism, the effect is anti-feminist, because it relentlessly disregards the work Muslim women undertake everyday to defy sexism.

Of course, as with all forms of systemic discrimination, Islamophobia operates to reinforce other forms of oppression. It is worth keeping in mind what the Congress of Progressive Filipino Canadians has recently argued: “Amidst heavy-handed and punitive actions such as the burqa ban, we must seriously begin to scrutinize a state multiculturalism that, on the one hand, acknowledges diversity on paper, yet on the other, is used to justify racist and anti-immigrant practices as perpetuated by government policy. In light of recent developments, we must understand the actions taken by the Conservative government as part of a tactic to divide the Canadian working class, deny citizenship, maintain temporariness and to spark anti-immigrant sentiments while pushing forward austerity measures as part of the neoliberal agenda.”

Thus, we should be committed to principled solidarities, where we work in conjunction with marginalized communities – even in the face of differences that may invite uncertainty. In the end, it is only through collective struggle that we can envision the possibility of a radically new tomorrow.


This article original appeared in the New Socialist Webzine.

]]>
http://lawiscool.com/2012/02/08/islamophobia-in-canada/feed/ 1 3322
Keep it in Perspective http://lawiscool.com/2012/02/04/keep-it-in-perspective/ Sat, 04 Feb 2012 19:04:23 +0000 http://lawiscool.com/?p=3314

]]>
3314
Trigger-Happy Plaintiff Feels the Blowback for Initiating Legal Action http://lawiscool.com/2011/10/21/trigger-happy-plaintiff-feels-the-blowback-for-initiating-slapp-action/ Fri, 21 Oct 2011 11:42:15 +0000 http://lawiscool.com/?p=3246 A recent decision by the Supreme Court of British Columbia in relation to a costs application provides a cautionary tale for eager plaintiffs that hope to use the courtroom to wage their own private war on citizens exercising their right to free speech. In Scory v. Krannitz, 2011 BCSC 1344 , Bruce J. awarded special costs and double costs against a trigger-happy plaintiff that sued an environmental society and some of its members individually for merely speaking out against his application for a permit, even though his application had not yet been denied by the relevant municipality.

Although Bruce J. was hesitant to characterize the plaintiff’s actions as a SLAPP, her decision reflects the courts’ capacity to appropriately address meritless litigation that abuses the court system and harasses citizens exercising their lawful right to free speech. After acknowledging that free speech is essential to democracy, Bruce J. stated that special costs can be used as a “deterrent to litigants whose purpose is to interfere with the democratic process.” In comparison, the courts have traditionally been reluctant to use the existing tools at their disposal (e.g. the Rules of Civil Procedure) to deal with plaintiffs that commence SLAPP actions on the basis that such an application of those tools would be unprecedented or outside the purpose that the legislature intended for them. Given the provincial legislatures’ slow pace in developing anti-SLAPP legislation, it is necessary for judges to use the tools at their disposal to compensate the legislative vacuum.

The Facts

In this case, the plaintiff  applied to the Township of Langley, British Columbia, for a permit so that he could farm on his land. If granted, the permit would allow the plaintiff to dump 750,000 cubic meters of soil on his property. The defendants, Sian Krannitz, Jack DeWitte and the Glen Valley Watershed Society (“Society”), were concerned that the impact of the soil on streams flowing through the plaintiff’s property would negatively affect the watershed in the area. Accordingly, Krannitz and the Society opposed the permit application. Their opposition consisted of the Society producing written material on the issue and holding a meeting in which Krannitz gave a speech. Krannitz also produced a report on the ecological damage that the plaintiff’s proposed activities would cause.

In short, the municipality put a hold on the permit until the plaintiff provided it with additional information that would allow it to measure the environmental impact of the application. The municipality sent the plaintiff a letter to that effect. Notwithstanding the fact that the permit had not been actually denied, the plaintiff  sued the defendants two weeks prior to receiving the municipality’s request for additional information for a total of $13,000. While the fact that the decision on the permit was still pending is pretty damning in and of itself, other indications that the claim was a SLAPP action included: the plaintiff’s refusal to disclose the municipality’s letter; the absence of evidence that supported his claim; and his failure to complete discovery. The court was also mindful of the effect that the lawsuit had on the ability of the defendants to exercise their right to free speech. All ceased any activities that would expose them to liability. Krannitz ceased to participate in the Society and volunteer in other environmental activities. In addition to its directors ceasing to participate in public decision-making in fear of personal liability, the Society considered winding itself up.

Based on the lack of evidence supporting the plaintiff’s allegations and his conduct, Bruce J. granted the defendants’ application for special and double costs. The plaintiff was ordered to pay Krannitz special costs in the form of a lump sum of $27,552.84 for legal fees, and $4,118 for disbursements. She was also awarded $1,000 in costs for the application at hand, in addition to disbursements. The Society was also awarded special costs for actual legal fees and disbursements, the amounts of which were to be decided upon the court receiving evidence on the costs actually spent by it. Double costs were also awarded to the defendants. According to Rule 9-1(5)(b) of the Supreme Court Rules, successful parties may be granted double costs for some or all of the steps taken in litigation after the date of their offer to settle. In this case, Krannitz had offered to settle, notwithstanding the lack of merit to the plaintiff”s claim. Bearing in mind the defendants’ limited resources and the fact that municipality had not actually denied the application, but was merely awaiting more information from the plaintiff, Bruce J. exercised her discretion to award double costs.

No SLAPP on the Wrist This Time

The effective use of existing procedural rules in Scory to deal with meritless litigation that interferes with free speech is worthy of much praise. Plaintiffs that abuse the court system should be sanctioned accordingly. Without sanctions, there is very little to prevent plaintiffs from wasting court resources to wage a personal war against others that oppose their whims. That said, there should be safeguards to ensure that claims that have merit are not excluded.

]]>
3246
On democratic legitimacy of the courts http://lawiscool.com/2011/08/31/on-democratic-legitimacy-of-the-courts/ http://lawiscool.com/2011/08/31/on-democratic-legitimacy-of-the-courts/#comments Wed, 31 Aug 2011 22:01:55 +0000 http://lawiscool.com/?p=3210 My last post talked about how judges work with each other’s decisions. Today, I’d like to take a bird’s eye look at the relationship between the judiciary and Parliament. Unelected judges handle laws passed by elected legislatures such as Parliament of Canada or provincial parliaments. How they do it helps understand why it’s ok for judges to be unelected and why we need an independent judiciary.

In Canada, judges do really only two things with laws legislatures pass (also known as acts of legislature or statutes). They apply them or strike them down as unconstitutional.

When judges apply statutes, they interpret them. Legislatures often cannot or do not want to spell out every detail in rules of law they include in statutes. But the only way a law can work is by affecting conduct of specific people in a myriad specific life situations. If somebody believes you violated their legal rights or broke the law, they can sue you or charge you with a crime. You can quickly give in if you know you have nothing going for you. In that case, you will apply the law yourself. You will adjudicate your own case in favour of the other side. You can also dispute the other side’s reading of the law. You will claim that in that particular situation, the law means something different, and you neither broke it nor violated anyone’s rights. Now a judge will have to adjudicate this dispute and impose his or her reading of the law on both sides.

For example, Parliament of Canada defines “invention” as “any new and useful art, process, machine, manufacture or composition of matter” in a statute called Patent Act. Harvard University created a gene making mice susceptible to cancer. A mouse with a gene like that can help identify carcinogens. Harvard University tried to patent the mouse in Canada, failed, and sued the government. Harvard believed that its cancer mouse was an “invention” under Patent Act, but the patent office didn’t. So it was up to a federal court judge to adjudicate this dispute, which basically came down to interpreting the language of the statute.

One reason it was ok for an unelected judge to impose his reading of the law is because the elected legislature implicitly allowed him to do so. Our Parliament chooses broad language for its statutes in full knowledge that some disputes over their interpretation will end up in the courts. The elected Parliament accepts that unelected judges will interpret its acts. If our elected politicians didn’t want the courts to interpret legislative acts, they would use more specific language or create special tribunals to interpret statutes. It happens all the time and is also known as ousting the courts’ jurisdiction. Basically, our elected politicians can shield entire areas of law from the courts, and when they choose not to they essentially delegate some of their democratic mandate and legitimacy to the courts.

Even when the courts do have the power to interpret a democratically created statute, provincial legislatures and Parliament always have an option of overriding the courts’ reading by clarifying or changing the statute. The term “dialogue” is used to describe this relationship between the courts and the legislators. When the courts ultimately decided that the cancer mouse was not an invention, they did their best, very democratically, to divine the will and intention of Parliament. They did not try to make their own ethical or political judgment, and they knew perfectly well that if they got it wrong, Parliament can always correct them by clarifying the Patent Act. Parliament didn’t.

So one huge responsibility of the courts—interpreting legislative will—is far more democratic and legitimate than some think. Of course, the courts’ other responsibility—striking down laws as unconstitutional—is a lot more controversial, but this topic is better left for its own blog post.

Pulat Yunusov is a Toronto litigation lawyer.

 


(Post sponsored by AdviceScene)

 

]]>
http://lawiscool.com/2011/08/31/on-democratic-legitimacy-of-the-courts/feed/ 1 3210