RSS FeedThe monarchy in Canada
The recent royal visit offers a good chance to talk about monarchy in Canada. Besides just being nice Canadians, the people who greeted the newly married royal couple were often ecstatic, filled with genuine love for the two people, one of which has done nothing of significance while the other has never been heard of until recently. Despite a minimal role in Canada, the monarchy seems to enjoy support here, and the republican groups occupy the margins of our political discourse. But the history of the Canadian democracy is the history of overcoming the monarchy. All the good things we are proud of: the rule of law, democratic elections, and civil rights—emerged despite the monarchy and often out of conflict with the monarchy. Today, Canada’s democracy is the fruit of the monarchy’s defeat. The royals have zero power in this country. The Queen is Canada’s head of state only on paper, and many people don’t know or remember that this is the finale of a centuries-long fight between the people and the monarchy. But besides the remaining formal royal footprints on our political system, there are other, more substantial remnants of monarchy in the Canadian government and legal system.
The less monarchy we had in Canada, the more democracy we had. The history of Canada’s democracy is the history of pushing back the monarchy until it was reduced to a rubber stamp for our democratically elected legislators. It is the triumph of the Canadian democracy that the Royal Assent is a formality. Monarchs have not always been as likable as the young couple from London, UK. In 1776, the US Declaration of Independence called the British rule “absolute Despotism.” Five centuries earlier, English nobles forced their king into signing
Magna Carta—a historic document that granted civil liberties and limited the royal power. Magna Carta, a blueprint for modern democratic constitutions, came about in spite of the monarch. The barons basically fought with the king for their rights. That’s the role of the monarch in our democratic tradition: give up more and more power to the people as the royal vigour increasingly declines.
The era of the strong monarchy also represents the backward times of racism and religious discrimination. The monarchy itself remains discriminatory: no Catholics and no bloodline outsiders. If any Canadian institution used the rules of succession to the British throne, the public would ostracize that institution and the courts would probably stop the practice. But the Ontario Superior Court of Justice refused to apply anti-discrimination provisions of the Charter to the rules of succession to the British throne. In 2003, Justice Rouleau of the Superior Court essentially recognized the British throne and the Queen as a foreign institution governed by foreign rules inherited by our constitution (O’Donohue v. Canada, 2003 CanLII 41404 (ON SC)). Since we can’t change the foreign rules and we can’t change our constitution, we are stuck with the discriminatory foreign monarchy.
Some of the best things about Canada are the rule of law, civil liberties, and a democratically elected legislature. The view that the monarchy somehow links us to the English legal and political tradition that gave us all those things is quite absurd. We owe much of our legal and democratic tradition to England, but that tradition emerged in England despite the monarchy. Democratic rights and the independent judiciary were a concession by the monarchy in favour of powerful land owners, first, and the general public, later. Besides, much of our Canadian democratic tradition is completely domestic, and some was borrowed from the US. While we have two Constitution Acts, the UK doesn’t even have a written constitution.
When we see the royal couple on TV, we should remember that they symbolize an institution that fought long and hard against civil liberties, the rule of law, and a democratic legislature. That institution has completely lost its power as a result of this conflict. The people and the democracy have won. For some reason, we still allow the royals to live in palaces and act out a fairy tale at our expense.
But there are other dangers in the monarchy fetish, especially in its recent revival. Our government still retains some qualities of the monarchy. Generally, these powers of the Prime Minister and the Cabinet are called the royal prerogative. These are the powers that the monarchy has always enjoyed but that do not come from the constitution, an act of parliament, or the common law. These are basically the powers that the government has not surrendered to Parliament or to provincial legislatures. This is, for example, the power to have foreign relations. When the courts reviewed the Prime Minister’s decision not to request the repatriation of Omar Khadr, government lawyers argued that his decision was an exercise of the royal prerogative and not subject to Charter scrutiny. The courts have rejected this position (Canada (Prime Minister) v. Khadr, 2010 SCC 3).
Besides the royal prerogative, the government has a wide array of powers that give it discretion in making decisions. Discretion means the government is less accountable about the rules and reasons it follows in making a decision. Often we want to give the government discretion for the sake of efficiency, but the courts must be able to control the limits of discretion and to overturn obviously unreasonable decisions. This is how the rule of law works.
Fascination with the monarchy can produce or can be a symptom of a lower expectation of accountability from the government. We may defer to the government more and more. The danger is when we start treating the government as a benevolent ruler. Governments are made of people, and people are corrupted by unaccountable power. The history of democracy in the UK and in Canada was a history of people taking the power back from the ruler.
The ceremonial formality of the Queen also breeds constitutional uncertainty, for example, when the Prime Minister prorogues Parliament so often that some parts of the public genuinely expect the figurehead governor-general to refuse to cooperate. She of course, did cooperate and that was the right thing to do from the legal standpoint, but the potential for a crisis exists.
Do we even need a head of state? It is an inheritance from the Middle Ages, when every nation had a powerful ruler. Modern democracies have leaders but they should be professional officials hired for a limited term, and nothing more. Prime ministers should not generate patriotic fervor. They must be professional politicians who embody certain popular political platforms. Let’s hope that prime ministers cannot mess up too much, and fortunately we have the ballot and the independent judiciary to hold them and their ministers to account. A foreign figurehead doesn’t really figure in this equation.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
International Intervention in Libya
By David Olevson and Ekaterina Perchenok
With the conflict in Libya and throughout the Middle East escalating every day, we must keep conscious of the inherent bias of our news outlets. While our hearts go out to civilians caught in the line of fire in this wave of unrest, collective international reaction must be carefully planned and scrutinized, as the possible consequences could be devastating with regards to human rights and casualties.
If the course of the international intervention in Libya is anything to go by, we seem to have forgotten some of the important humanitarian lessons learned in Rwanda and the former Yugoslavia. So far, several hundred missiles have been deployed, with the total civilian casualties remaining unknown. There have even been reports of child soldiers being recruited. Regardless of one’s stance on the general legality of this intervention, with no end in sight, the events are becoming more troubling each day.
UN Security Council Resolution 1973 authorized “all necessary measures” to protect the civilian population in Libya from pro-Gaddafi forces. The resolution demands an immediate ceasefire and a political (rather than military) resolution to the conflict. While the resolution clearly states in paragraph 4 that “all necessary measures” are to be taken to protect civilians and civilian populated areas under threat of attack, it explicitly excludes sanctioned occupation. This statement is, without a doubt, an admirable ambition. The document also recognizes the important role of the League of Arab States to the legitimacy of this international response. This recognition is a significant acknowledgment of the complex regional tensions and geopolitics on a grander scale. Despite these attempts at added legitimacy, the document lacks in several areas. It does not provide for any definition or limitations on what course of action may be followed, it does not state which countries should take leadership roles or even which will participate, and the only limiting criteria within the resolution is the exclusion of sanctioned occupation. (For more on the Resolution, click here)
International intervention is now nearing its second week in Libya, with no end in sight. Some have even speculated that it may be months before an end is reached. If we are to prevent a new generation of child soldiers from being used for civil war, countless casualties and the further displacement of large groups of people, decisions must not be rash and must be carefully scrutinized. While we may want to help those being abused by a brutal dictator, the outcome of our response must not result in a prolonged civil war. While revolutions provide exiting headlines for Western news outlets, the West quickly becomes bored as new crises appear. Societal and social infrastructure problems are not solved by brief limelight and donations for the ‘cause of the day’, the problems must be solved with careful social building blocks that take years to reinforce. Only then can the issues be solved, and hopefully children be spared from the dim future they likely face.
For further reading, you may find this and this interesting.
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David Olevson and Ekaterina Perchenok are first year law students at the Faculty of Law at Queen’s University. David received his undergraduate degree from Huron University College at the University of Western Ontario, majoring in Political Science. Ekaterina completed her degree at York University, specializing in Global Political Studies.
Don’t hate, U of O Provost warns U.S. pundit
When the University of Ottawa Campus Conservatives invited U.S. political pundit, Ann Coulter, to speak, they had to know she would attract attention. Coulter has always been outspokenly controversial with her political positions. But it’s unlikely that she, nor the Campus Conservatives, expected that her anticipated visit would provoke words of warning from the University of Ottawa Provost.
In a letter to Coulter, Vice President Academic and Provost François Houle wrote the following:
I understand that you have been invited by University of Ottawa Campus Conservatives to speak at the University of Ottawa this coming Tuesday. We are, of course, always delighted to welcome speakers on our campus and hope that they will contribute positively to the meaningful exchange of ideas that is the hallmark of a great university campus. We have a great respect for freedom of expression in Canada, as well as on our campus, and view it as a fundamental freedom, as recognized by our Canadian Charter of Rights and Freedoms.
I would, however, like to inform you, or perhaps remind you, that our domestic laws, both provincial and federal, delineate freedom of expression (or “free speech”) in a manner that is somewhat different than the approach taken in the United States. I therefore encourage you to educate yourself, if need be, as to what is acceptable in Canada and to do so before your planned visit here.
You will realize that Canadian law puts reasonable limits on the freedom of expression. For example, promoting hatred against any identifiable group would not only be considered inappropriate, but could in fact lead to criminal charges. Outside of the criminal realm, Canadian defamation laws also limit freedom of expression and may differ somewhat from those to which you are accustomed. I therefore ask you, while you are a guest on our campus, to weigh your words with respect and civility in mind.
There is a strong tradition in Canada, including at this University, of restraint, respect and consideration in expressing even provocative and controversial opinions and urge you to respect that Canadian tradition while on our campus. Hopefully, you will understand and agree that what may, at first glance, seem like unnecessary restrictions to freedom of expression do, in fact, lead not only to a more civilized discussion, but to a more meaningful, reasoned and intelligent one as well.
I hope you will enjoy your stay in our beautiful country, city and campus.
Sincerely,
François Houle
Vice-recteur aux études / Vice-President Academic and Provost
Université d’Ottawa / University of Ottawa
Given Coulter’s colourful history, I would think she would be grateful to learn more about a foreign country. However, even in Canada, some have been quick to criticize the letter. And in the National Post, Prof. Ed Morgan reminds us that, as far as hate speech goes in Canada, we criminalize only words conveying “emotions that belie rationality.” After all, even in Canada, we wouldn’t want to approach anything resembling censorship, now would we?
How to avoid committing sexual assault
There are man crimes. Take sexual assault, for example. I don’t have the stats but I will be really surprised if most people convicted of sexual assault weren’t men. For example, the Criminal Code has special rules making it more difficult to challenge complainants during trials for sexual assaults. The purpose of these rules is obviously to protect female victims. The law of sexual assault regulates largely male behaviour, and men should know this law well. The guy who was convicted after sex with his twin brother’s girlfriend should have known better. This story hit the media because he appealed his conviction, and the issues he is raising on appeal show how complicated and fact-specific sexual assault law can be. The lesson for men in Canada is to be extra careful and avoid sex if you’re not sure. Read below for specific suggestions.
Sexual assault is any physical contact without consent “in circumstances of a sexual nature such that the sexual integrity of the victim is violated” (Martin’s Criminal Code). If you are accused of sexual assault, what the physical contact looked like to you is irrelevant. What matters is if the judge thinks it was sexual. He or she will look at many factors such as “[t]he part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force … and the motive of the accused” (Martin’s Criminal Code). Sometimes your motive will be important and sometimes not.
In the twin brother case, the man had sex with the woman so the nature of physical contact was not an issue. The question on appeal is about the woman’s consent: was the man reckless or wilfully blind when he believed the woman agreed to the sexual contact? I don’t have the trial judge’s decision or the parties’ submissions on appeal, and I don’t want to draw conclusions about this case from the media’s reporting. So let’s say the case is just an inspiration for this essay.
Suppose the prosecution argued that the man had a higher duty to make sure the woman consented because he looked almost exactly like his brother. It’s a reasonable argument for the Crown to make because belief in consent is not a defence if you were “reckless” or “wilfully blind” in having this belief. It means if you knew there was a chance the woman didn’t consent or if you knew you had to do more to find out if she consented but didn’t because you didn’t want to, and the court finds she didn’t consent, you’re a criminal.
If you are the twin brother of a woman’s boyfriend, do you have to take extra steps to ensure her consent before sex even if you think the woman gave it? One theory could be that the exceptional similarity of twins creates a special risk that the woman will confuse one brother for another. If you know of this risk but go ahead, you are reckless even if you believe the woman consented. If you don’t know of this risk but know about the possibility of risk and prefer to ignore it, you are wilfully blind. In both cases, you are guilty of sexual assault if it turns out the woman didn’t consent.
As you can see, the law of sexual assault is complex and fact-specific. One reason why the Parliament and the courts chose to make it that way is to protect women because of many ways in which they could be against having sex and because they would not always be able to make it clear to the man, for example out of fear. The burden is clearly on men (assuming sexual assault is a man crime as I argued in the beginning) to make sure the woman consents before and during any sex. But if lawyers and judges disagree on the complex questions of consent, what should ordinary men in Canada do? (I am not talking about rapists, violent men, and other obviously criminal types.)
Criminal law must give clear guidelines, or it risks becoming unjust. Vague criminal law is unconstitutional in Canada. I am not arguing that the sexual assault law is vague but it’s complicated enough for men to have to follow the highest standard of conduct to really be on the safe side. In your normal sexual relations, the line between lawful and criminal conduct can be very thin. You can cross it easily. Here are some suggestion for all men in Canada:
- before any touching, ask the woman if she consents and do not touch until she says yes
- sexual touching includes hair, neck, hands, face, etc.—not just the obviously sexual areas
- of course, it also includes the sexual act itself
- if the woman says no, do not touch her; do not assume that she is playing; in criminal law, no means no
- if you know you look like someone else she knows, tell the woman exactly who you are before any touching
- during any touching, constantly monitor the woman for signs she stopped consenting
- if you see any signs that she withdrew her consent, stop all touching immediately
- videotape everything (preferably in high definition) in case the facts are disputed in the future
- don’t forget to warn her you’re videotaping because uninformed consent doesn’t count
- having two impartial witnesses during the whole process is even better
- DO NOT DRINK before or during the physical contact with a woman: you risk impairing your judgement and missing the moment when she stops consenting. Self-induced intoxication is not a defence.
- above all, guys, treat women with respect and avoid random sexual relations
(Post sponsored by AdviceScene)
Canada Goes for Another Hockey Gold
Hot on the heels of the victorious Canadian women’s hockey team is the men’s team, which is aiming for its own hockey gold. The game against the rival United States promises to be an Olympic classic!
Beginning at 12:15 p.m. PST (3:15 p.m. EST), you can watch USA v. Canada online at CTV’s Olympics website. The site offers full HD streaming video, which is perfect for me, since I don’t have a TV. The link to the video is here.
And since this is a law blog, I’ll see if I can do a haphazard legal tie-in to end this post.
If you ever had any doubt that hockey was one of Canada’s true national sports — not just lacrosse — check out the National Sports of Canada Act, S.C. 1994, c. 16. The Act provides:
2. The game commonly known as ice hockey is hereby recognized and declared to be the national winter sport of Canada and the game commonly known as lacrosse is hereby recognized and declared to be the national summer sport of Canada.
Another sign that Canadians are obsessed with hockey: have a look at how many times “hockey” comes up on a CanLII case law search. I come up with over 7000 results, beginning with a case called Hockey v. Hockey from the BC Court of Appeal. You can’t get much more Canadian than that!!
Go Team Canada!
Stripping of citizenship, contd
Father was never charged with war crime, family says
The family of Helmut Oberlander says he was never a Nazi and he has not been charged by the federal government with any war crime.
Goblins crave to eat the Charter
The Abdelrazik affair exposed some of Canada’s poorly known but in-your-face draconian laws. James Yap of Osgoode Hall Law School wrote a fantastic post about the federal United Nations Act and the United Nations Al-Qaida and Taliban Regulations on TheCourt.ca. Go read it.
The new underclass
Who haven’t heard of immigration queue jumpers? The current federal government used this term when it shut down visa-free travel from the Czech Republic and Mexico. Federal officials blamed queue jumping refugee claimants. But if someone jumps the queue, it’s not refugees as much as it is temporary guest workers. And their biggest aider and abettor is Ottawa itself. Estimated 65,000 refugee claims were pending in 2008, but almost 192,519 foreigners came to Canada as temporary workers last year. A Toronto Star investigation revealed that many of them are vulnerable, abused, and prone to go underground, especially during a recession. The Canadian government wants to be in the labour supply business, but it’s not doing a good job.
The temp worker program lets employers select employees abroad if the federal labour officials certify a worker shortage in the employer’s industry. Today, most foreign workers go to farms, oil fields and into other low-skilled jobs, and many eventually end up in the underground economy. The current government in particular has let an unprecedented number of low-skilled migrants in Canada. Ottawa essentially acts as a giant recruitment agency that sizes up clients’ labour needs and fills them with people from foreign countries on condition that they go back home after two years. Foreign workers can’t switch jobs without the government’s permission. In Ontario and Alberta seasonal agricultural workers can’t join unions. And low-skilled workers can’t easily apply for permanent residence in Canada. After all, the idea is to bring in cyclical labour.
And cyclical labour they bring. Farms needs crop gatherers. Fast food joints need burger flippers. Energy companies need oil-sand workers. There are so many people in the world willing to work for much less than Canadians. Cheap labour, like any other cheap resource, can translate into lower costs across the production chain and lead to lower prices, economic growth, and general happiness. And the conventional wisdom goes that Canadians don’t want to do those jobs anyway. Temporary workers are also not supposed to strain our health care because they don’t grow old here. We have a constant supply of fresh, young, cheap labour thanks to the federal super recruiters in Ottawa. Right?
Wrong. The Toronto Star investigation revealed a widespread abuse of temporary foreign workers. Some employers take advantage of their weak bargaining power. Some employers refuse to pay their wages. Some pay much less than promised. Some fire workers without regard to their labour rights. Foreign workers often come from poor countries after borrowing thousands of dollars for the trip and middlemen’s fees. They feed their families who stayed behind. The law doesn’t let them switch employers easily. It’s not exactly a position of power in negotiating your job conditions. The Toronto Star report shows how many workers end up underground. They are the real queue jumpers, but who dare blame these abused people? Where they jump is not permanent residence in Canada but permanent limbo. They jump to a life of fear of authorities and working underground. Debts, hungry families overseas, and false hopes stop them from leaving.
They form a massive underclass—desperate and without rights—pushing many of them into crime. We have traditionally had two classes of people who lived in Canada: citizens and permanent residents. Their rights are similar but permanent residents lack some important rights that all citizens enjoy. Today we are adding a third class and even a fourth class way down the social ladder: the temporary workers with few rights and the temporary workers gone illegal—with almost no rights. Economic cycles come and go, but marginalized migrants will stay.
The government should get out of the labour supply business. If a job is low-paid, it doesn’t mean that Canadians don’t want to do it. It means the job must be better paid. And the market will take care of it without Ottawa’s bureaucrats crunching numbers in their spreadsheets. By importing massive cheap labour the federal government discourages higher productivity and wages. Unless a job involves killing people, there is hardly a qualified Canadian who wouldn’t take it for a fair wage. And if there are no takers, the job doesn’t belong in Canada.
The immigration policy should target the real issue instead of tampering with the labour market. And the real issue is the population growth. We desperately need more people in Canada, and the only realistic source is immigration. But we need immigrants with full rights, who are proud and secure and who understand and value the Canadian society. About 900,000 of potential permanent residents and future citizens are languishing in the huge backlog. In the meantime, Ottawa tempts hundreds of thousands of the world’s vulnerable to jump the queue and end up as marginalized migrants in Canada’s cities.
The Ocean Lady: Rethinking “Illegal” Migration in Canada
The recent arrival by boat in Vancouver of 76 Sri Lankan Tamil men has triggered heated debate about Canada’s refugee system. On October 28, the Liu Institute for Global Issues at the University of British Columbia held a forum on the topic, entitled “The “Ocean Lady”: A New Challenge of Illegal Migration on Canada’s West Coast?” One of the panellists, Daniel McLeod, who is duty counsel for the migrants, called these men “classic refugees,” because of the persecution they face in Sri Lanka. “It’s young Tamil men in Sri Lanka who are most at risk,” he said. He also observed that though “the Liberation Tigers of Tamil Eelam at their peak had probably 1500 to 2500 soldiers,” there are currently a quarter of a million Tamils awaiting security clearance by the Sri Lankan government in internment camps in the northern parts of the island.
McLeod, who is also an instructor in Refugee Law at UBC, noted that Canada is a signatory to the 1951 UN Convention on Refugees, which states that refugees cannot be penalised for entering the country through illegal means. Canada’s acceptance of the Convention was triggered by its refusal in 1939 to admit the St Louis, a boat containing 907 Jewish refugees, who were forced to return to Germany, where a third of them were killed in concentration camps. However, host and fellow-panellist, Benjamin Perrin, Assistant Professor at UBC Law and Faculty Associate at the Liu Institute, said that because the 1951 Convention only addresses the criminalisation of the entry, “it does not preclude countries from exercising detention where the identities of the individuals are uncertain or there are undetermined security risks.”
McLeod cautioned against assuming the men were Tamil Tigers. “It is common for people who have been forced to work as labourers for the Tigers, to be rounded up, arrested by the army, police, or the special task force – which is a police commando force – and simply disappear,” he said. When describing the men, nearly all of whom are currently confined in a Lower Mainland jail, McLeod said, “Some of them are students, some are farmers, some of them are clerks, office workers. They are all very scared.”
In Canada the acceptance rate for refugees is approximately 47%. In comparison, according to Andreas Schloenhardt, Associate Professor from University of Queensland, in Australia, that number is 80%. (However, Australia has a very different immigration system, which involves using whole islands far from the mainland as detention centres, so these numbers may not be analogous.) Yet the 2007 acceptance rate specifically for Sri Lankans in Canada was 97%.
In 1986, local fishermen came to the rescue of 154 Sri Lankans found floating off in lifeboats off the coast of Newfoundland. Those people were not subjected to what McLeod called “the political frenzy that’s occurring today,” suggesting that in the intervening two decades Canada’s policing of its borders has become progressively more exclusionary and reactionary. This fear was solidified on November 2, when Immigration Minister Jason Kenney, after accepting the fewest refugees in 10 years, dramatically cut the 2010 target number of refugees to be accepted by more than half. Opposition MPs assert that “by steeply dropping the targets, refusing to appoint Refugee Board members for 2 years, cutting $4 million in the department and allowing for board appointments not based on merit, Harper’s Conservative government is deliberately creating a crisis in the refugee system. The crisis is then used as an excuse to bring in draconian measures to close the door to the most needy and vulnerable.”
At the lecture, Perrin claimed that the focus on the “human interest story” of the 76 men, while legitimate, shifts attention away from an analysis of the means by which refugees move illegally between countries. He argued that “Canada must take action to discourage illegal migration and disrupt migrant smuggling operations where they do exist.” Further, Canada is a party to the 2004 UN Protocol against the Smuggling of Migrants by Land, Sea and Air, which, he said, “calls for [migrants] not to be criminalised, but to be treated humanely. But at the same time, it does not give them the right to temporary or permanent residence in Canada simply because they are smuggled.”
When one student then questioned him about the language used to describe the men, specifically the term “illegal migrant” (which was featured in the panel title), because of the way it implicitly criminalises the men, Perrin responded that “the title of the presentation has a question mark at the end of it, which was very deliberate.” Another audience member had a query about how that kind of vocabulary negatively affects media coverage. Perrin responded, “I think it’s important that before there’s been an impartial determination of the legal status of these individuals, that our language reflect that. So I’m not calling them refugees right now because I don’t know if they are.”
Perrin maintained that “there are advantages to cooperating with other countries, not just the source countries, but also other countries along the migrant smuggling chain,” because this would assist Canada in “creating proactive responses to protracted refugee situations.” One reporter asked, “How are we to trust the Sri Lankan government if they say these people are members of a terrorist organisation? [...] How do you trust a government which is treating a minority as harshly as them?” McLeod answered, “I hope we’re not going to trust the Si Lankan government to make that determination for us. There are a number of ways that Canada Border Services Agency can obtain information in normal ways.” These include taking fingerprints to run through international police records and analysing accents to determine where in Sri Lanka the men are from. However, the RCMP has already begun collaborating with the Sri Lankan government to identify the men.
“There are 16 million refugees worldwide as of June 2009. There’s another 26 million internally displaced persons, who don’t count as refugees,” said McLeod. “Hundreds, if not thousands, of irregular migrants are reported dead or missing every year,” said Perrin.
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A previous version of this article first appeared in Canadian Lawyer. This article was last modified on Nov 5.
Student-teacher love can be a serious crime in Canada
Disclaimer: I am not a lawyer (I am a law student). The text below contains only my understanding of the applicable law. It has nothing whatsoever to do with your particular situation. Do not assume you can make any decisions based on this text. I do not intend this text to apply to anyone’s situation. This text is not legal advice. I am not qualified to give legal advice anyway. The purpose of this text is to encourage debate and create awareness of certain criminal offences. Please consult a lawyer if you need legal advice or help with your particular situation.
Our society is obsessed with sex. Not just in a dirty sense. We are probably as much into sex as we are afraid of it, and one proof of our fear of sex is in the criminal code. Sexual assault, sexual interference, sexual exploitation, invitation to sexual touching are serious crimes in our legal system. We want to punish sexual offenders because we want to protect ourselves and especially our women and children. Traditionally, the predators have been men, but more and more often the police arrest women for sexual crimes. I wrote about a case in Georgia where a trial court gave a female teacher ten years for a mutual love affair with a girl-student. The girl reached the age of consent but the court ignored it because the older woman was her teacher. A few days ago, an Ontario judge sentenced a female teacher for a love affair with a student. If the older women didn’t plead guilty, this case would be almost identical to the case in Georgia, except for the brutally harsh sentence. But the intricate details of the Ontario case are different enough to make this story a lesson for all adults—not just for teachers.
Litigious
Ottawa to launch Supreme Court appeal of Khadr ruling
The federal government will go to the Supreme Court of Canada to appeal a court order to bring Omar Khadr home from a U.S. military prison, according to a CBC report.
Access to justice and elected judges (conclusion)
(Part 1)
So anyone demanding the election of judges should understand this: there is a conflict between accountability and impartiality. It’s often hard to get the judges both to be independent and to answer to the people. For example, when the government throws a citizen to the wolves in a foreign country, an independent judge will lawfully award her damages. A judge worried about re-election may cave to his sense of the mood among the majority of taxpayers.
When judges apply straightforward law to straightforward facts, the accountability argument is especially weak. The law is an expression of the majority’s will. When legislatures pass laws, their straightforward applications are obvious. We expect judges to apply such laws almost mechanically. In these cases, judges are pretty much delegates of the legislature. They don’t make any law so they should not be accountable beyond the basic professional standards.
And don’t forget the Constitution—the super law. Its very purpose is to protect some principles against the majority’s will. In Canada, these principles include the makeup of our political system and the fundamental human rights. Judges can strike federal laws when they overstep the constitutional bounds. This is an awesome power of the judiciary. It usually uses it against the majority, so how can anyone expect it to be accountable to the majority at the same time?
When judges apply ambiguous non-constitutional rules, the accountability appears more important. The legislature, either intentionally or accidentally, leaves gaps in the law. It is up to the judiciary to choose one interpretation of the law when some new, unusual dispute finds a hole in the rules. Trial judges have another important power that may need accountability. They are free to decide what facts to take as the truth and what facts to ignore after hearing both parties. Sometimes, juries of ordinary citizens do this job, but in Canada usually judges “find facts”.
But even when accountability is reasonable, it is practically too difficult to have. Judges are different from politicians. Majorities have a right to call the government to account on every political decision. But as we just saw, citizens can claim a right to scrutinize only some judicial rulings. This brings difficulty and uncertainty. Most people do not have legal training. Citizens will have a hard time telling decisions open to their scorn from untouchable rulings. Using more government resources to explain or filter judicial decisions will overburden a system that is already bursting at the seams.
The good news is there are alternatives to the judiciary’s direct accountability through elections. First, we can choose judges very carefully. The Parliament is free to set standards for judicial selection. Second, we can monitor the judiciary for obvious abuse. The police are free to investigate judges suspected of crimes. The Crown is free to charge them if there is enough evidence. Third, we have the appeal route when judges make errors of law. It’s a time-tested but expensive mechanism. Finally, perhaps we should have more juries to make fact-finders more representative of the general population. Unlike the US, Canada has very few jury trials. When a jury makes a verdict, it’s one fewer judge to accuse of being unaccountable to the people.
There are good reasons to demand election of our judges. But the reasons not to are even better. In conclusive cases and in many constitutional disputes the judges should not owe any accountability to the majority. Telling the difference could be too costly for the public, but any mistakes can undermine the administration of justice or the Constitution. Judges protect us not only from illegality but also from ourselves. It’s a huge role. Much accountability is already there through law enforcement and regulation of the bench. If that’s not enough, we could use juries more often. Beyond that, we will have to trust our judges. They have usually been doing a good job anyway.
