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.

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.

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)

The most important principle of our judicial system is that it is passive. It never goes out and forces anyone to do anything unless someone asks it to resolve a dispute. An aggrieved person or organization (or the state) must bring a valid cause of grievance to the courts’ attention. The courts will generally give the party blamed for the grievance a chance to dispute the accusation. After reviewing the dispute, the courts will resolve it by granting or denying a requested remedy to whoever brought the dispute to the courts. Courts’ decisions are always about a specific dispute before them, and you must be somehow connected to this dispute for the courts to be able to force you to do anything. (There are important exceptions such as references by governments to provincial appellate courts or to the Supreme Court of Canada.)

For example, if someone wants to stop a neighbour from smoking because it harms their child, they would go to the Superior Court. A judge will hear from both sides and make a decision in this particular dispute. But that judge cannot outlaw smoking near children for everyone everywhere.

If another judge refuses to enforce an anti-prostitution law because she finds it unconstitutional, her decision applies only to the specific person who was charged with a criminal offence under that law and who alleged to this judge that the law was unconstitutional. The judge cannot force the police from arresting the next john.

A judge’s decision can be binding only on those who have something to do with the specific dispute before that judge. If a judge finds a law under which Mr. X was arrested unconstitutional and as a remedy orders whoever has custody of Mr. X to release him, he must be released as contempt of court is a criminal offence in itself. But if Mr. X is arrested again for doing the same thing later on, a different judge doesn’t have to order the police to release him. The original judge’s decision is not binding on a fellow judge. Even the original judge can strangely change his or her mind and deem the law constitutional.

But judges respect each other’s decisions. This respect is also called deference, and it comes in different sizes. Fellow Superior Court judges often find each other’s decisions persuasive but they defer to each other much less than they do to judges of the Court of Appeal. A losing party can ask an appellate court to review the decision of the judge who first heard the case. An appellate decision in that case will enjoy greater deference from Superior Court judges when a similar case come before them. They will simply know that if they don’t defer, their decision will probably be overturned on appeal because a panel of appellate judges will probably decide similarly to the previous panel if the facts of the case are similar.

In criminal cases, this motivates the police to respect appellate court’s decisions in similar situations because the police would be wasting its resources by arresting people the courts will likely release. On the flip side, a crack-down decision even by a Superior Court’s judge will probably encourage the police to arrest more people in similar cases, even if to force the issue to an appellate court.

But one panel of the Court of Appeal cannot really force another panel to do anything. That creates a certain intrigue in our judiciary. In theory, even an appellate court’s decisions are not binding on lower courts because the next appellate panel can agree with a lower court’s judge going against the previous appellate panel. Rinse and repeat for the Supreme Court of Canada. Basically, the idea is that judges have a great amount of respect for each others’ decisions, and the respect grows exponentially with the level of the court making the decision, but no judge can really force another judge to do anything.

Yet this is a very simple, literal view of the judges’ power over each other. In reality, lower court judges pay so much deference to appellate court judges that higher court decisions are effectively binding on lower courts. Also, a more accurate way to see the hierarchy of judges is not through hard power but through learning, evolution, and respect. It is a soft power structure that binds lower courts judges rather predictably but still leaves room for revolutionary decisions defying existing norms.

Pulat Yunusov is a Toronto litigation lawyer.

(Post sponsored by AdviceScene)

The previous sentence means that an act of Parliament is not really the law until the courts have adjudicated a dispute about what the specific legislative act or its provision means in a specific case. If all people understood the same text and applied it to the same facts the same way, we wouldn’t need courts. Lawyers predict what the courts will say the law is for the given facts, and litigators, in addition to that, offer judges their theories of what the law is in a given dispute. So advocacy in court is trying to influence the judge’s vision of what the law is and of how to apply it in this particular case. Without impartial and binding adjudication of disputes by the courts, the law is only what the strongest party (the police, the employer, the rich, and so on) says it is.

So if lawyering is predicting how the courts or tribunals will apply the law to a particular situation, blawging, in my opinion, is the same thing but by way of informal and accessible writing in a blog. A blawg should predict what the law is in some interesting case of current interest. A blawg is always a legal opinion, but it’s almost never legal advice, because it is addressed to a broad audience rather than a client. If I write about telephone number portability, the blog post should give a basic idea about what enforceable rights you will have if your telephone company decides to take your phone number from you. A blawg is not about what will happen, but rather about what you can reasonably accomplish by taking your case to a court or tribunal, if you have the time, the money, and the expertise.

In this sense, blawgs can be a little removed from reality because most people don’t have the time, the money, and the expertise to go to court. In fact, of those who do begin litigation, most never sustain it all the way to trial, which would be the first chance a judge will get to decide the case. That’s why lawyers, of course, must give practical advice in addition to pure legal advice, and it’s hard, and that’s why there is a disconnect between the public and lawyers. The client expects a solution and doesn’t care about the method, and the lawyer often must think in terms of courts because that’s all he or she may be qualified to do.

Perhaps blawgs can bridge this gap by educating the public about the law and teaching the public to self-regulate due to better knowledge of legal consequences. But unless we make access to the courts cheaper and easier so judges can hear and decide more cases that deserve to be heard and decided, blawgs alone will face an uphill struggle.

Pulat Yunusov is a Toronto litigation lawyer.

(Post sponsored by AdviceScene)

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)

However, that list is currently missing an important use of the internet that law students should (arguably) have access to: online lectures of law school classes (in audio, video, or both).

If law students had the option of physically attending class or virtually attending class, which do you think they would prefer? Think both. Why should law students be “falsely imprisoned” into choosing how to attend class. The real issue here is that law students should have the CHOICE of attending class either virtually or physically.

The technology to enable this important choice is prevalent throughout our society. Podcasts, YouTube videos, and even online universities have allowed online learning and education to become reality – just three clicks away – instead of three kilometres away.

But who would benefit? Many mature students have revealed to me that law school is like an insatiable hunger that ravishes their time. I would even assert that the same comment applies to traditional students straight out of university. Law school undoubtedly sprints by and the pace can approach the speed of sound; hence, online lectures would allow students (mature or traditional) to choose the pace at which they can run (or walk) through the lectures. How I wish I could pause the professors in some of my classes and press rewind! Moreover, online lectures would offer students the flexibility to “attend” class according to their preferred time. Many nocturnal students would agree. Even the law school administration would potentially benefit from admitting more students, albeit some law students currently looking for jobs would raise an eyebrow to this.

While there is a plethora of advantages and disadvantages to carving out this choice for law students, the discussion should begin to take place and not be left to future law school administrations or students to tackle.

In essence, why not allow law students the freedom to choose how they want to attend lectures (virtually or physically) and learn the curriculum in law school? Just because something has been engraved in the past for centuries, logic (appeal to tradition) dictates that old is not always gold.

‘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.”’

The Educational Institution shall give Access Copyright, on reasonable notice, right of access through-out the Educational Institution’s premises in order to organize and carry out an audit, including full access to the Secure Network and all Course Collections.

This would include access to university email accounts.

There are a number of problems with the Access Copyright regime. First of all, every university student is presumed to be infringing copyright and this seems very unlikely given the Fair Dealing rights in the Canadian Copyright Act that expressly permit the copying of non-substantial portions of a work for the purpose of private study. As well, the university is presumed to be responsible for the presumed copyright infringement by students. This is contrary to the Supreme Court of Canada’s decision in CCH Canadian Limited v. Law Society of Upper Canada, [2004] 1 S.C.R. 339.CCD, which held that a library is NOT responsible for copyright infringement merely by providing access to photocopiers.

What is more troubling, though, is that by paying Access Copyright, our fair dealing rights become meaningless.

We are paying even though there is probably not much substantial copying taking place, and if this becomes the norm, fair dealing rights could be removed from the Copyright Act for the simple reason that no one behaves as if there is such a thing. Access Copyright denies flatly that they want to charge for non-substantial copying, but this does not square with the section 3 of the proposed licence agreement:

3. Subject to compliance with each of the conditions in Sections 4 and 5, this tariff entitles an Authorized Person for Authorized Purposes only, to
(a) make a Copy of up to ten per cent (10%) of a Repertoire Work;
(b) make a Copy of up to twenty per cent (20%) of a Repertoire Work only as part of a Course Collection; or
(c) make a Copy of a Repertoire Work that is

(i) an entire newspaper or periodical article or page,
(ii) a single short story, play, poem, essay or article,
(iii) an entire entry from an encyclopaedia, annotated bibliography, dictionary or similar reference work,
(iv) an entire reproduction of an artistic work (including a drawing, painting, print, photograph and    reproduction of a work of sculpture, an architectural work of art and a work of artistic craftsmanship), and
(v) one chapter, provided it is no more than twenty per cent (20%) of a book.

How else can this provision be interpreted? The university would be paying for permission to make non-substantial copies which are permitted without payment under the Copyright Act. We would be paying for our Fair Dealing rights.

Another problem is the bully-factor. This organization is not negotiating in good faith with the University, but threatening law suits instead and negotiating via an application to the Copyright Board – a rather passive-aggressive manoeuvre. By paying this organization, we are enabling it with massive financial resources and providing an enormous financial incentive to ‘discover’ new ways to ‘extort’ funds from university students … and the justifications can be based upon the results of spying on our email accounts.

The Access Copyright regimes treats scholarly works as if they were pop-songs broadcasted on the radio for a big fat profit when in fact University libraries are expensive, profitless resources for private study. The vast majority of scholarly works in these libraries are written by university professors and graduate students who aren’t looking for royalties. The main policy reason behind Fair Dealing rights is to prevent copyright law from inhibiting the intellectual development and sharing of knowledge within our society. The entire Access Copyright regime is an effort to push back against this reasoning. It is a kind of intellectual enclosure movement.

The University of Western is committed to this regime going forward. It proactively collected $15 per student last September on the assumption that the Copyright Board would ordain a fee of something less than $45 per student but substantially more than the $3.38 under the expired agreement. By doing so, UWO demonstrated its willingness to accept the surveillance, and the presumption of copyright infringement and the presumption of legal responsibility for the infringement.

The university has a choice. The licence agreement is optional and UWO can walk away from it. It would make much more sense to charge students a modest fee which would go to the libraries to implement procedures and negotiate licence agreements with publishers to ensure that students have the resources they need without exposing the University to the risk of law suits. If CCH has any force, Access Copyright is on very shaky legal ground. Quite simply, we don’t need Access Copyright.

NOTE: Access Copyright is trying to force all universities to sign on. Get informed & get involved. Join the FaceBook group ‘Fair Copyright Western’

For more information:

• The Access Copyright home page
• Access Copyright proposed licence agreement/tariff
• U of Manitoba  chooses not to renew their agreement with Access Copyright
• Canadian Library Association’s position
• UBC is saying “no” to Access Copyright

What legal scholars are saying:

• Michael Geist
• Samuel Trosow (of Western Law)
• Howard Knoff