RSS FeedWorld Institute for Research and Publication (WIRP) Presentations
I presented a couple papers this morning at the Annual Meeting of the World Institute for Research and Publication – Law. You can read more about the conference over at Slaw.
The presentations, with audio and complete papers, are available on the WIRP site, or on SlideShare below:
Full Paper: Media Narratives in Times of Turmoil: Depictions of Minorities in Canada Post 9/11
Full Paper: Admissibility of Alcohol and Gaming Commission of Ontario Reports
Canadians, beware of Arizona Senate Bill 1070
How far can a government go to fight illegal migration? One government is flying right into uncharted territory if we are to judge by public reaction and media commentary. Arizona’s legislature is considering a bill that allows Arizona police to arrest people on a “reasonable suspicion” of their unlawful immigration status. Many groups ripped into the proposed law, and the head of the Los Angeles Roman Catholic archdiocese even compared it with “German Nazi and Russian Communist techniques.” Others defended the legislation citing high rates of illegal immigration in Arizona. The bill has several controversial provisions but let’s look closely at some detention powers it gives to the police. These changes can put Canadians lawfully travelling to Arizona at serious risk of detention.
Senate Bill 1070, also known as “Support Our Law Enforcement and Safe Neighborhoods Act,” allows the police to verify immigration status of a person, with whom they have “lawfully” come into “contact,” if they have a “reasonable suspicion” that the person is an illegal alien. The obvious interpretation of this provision is that the police will detain the person while they verify the status. This is clear from both the context of this provision and the purpose of the statute. The bill as a whole aims to ramp up enforcement of federal immigration laws. Its purpose is “attrition through enforcement.” The legislature hardly expects the police to release suspected illegals while they verify their status. Besides, the statute gives the police powers to turn illegal aliens over to federal authorities. It is hardly reasonable to expect Arizona police to let suspected illegals go while they check on their status. So verification will mean detention or arrest.
Bill 1070 sets out the following detention scheme. First, there must be a lawful contact between you and the police. Second, the police must form a “reasonable suspicion” that you are an illegal alien. Third, they must make a “reasonable attempt” to determine your “immigration status.” Fourth, if they can’t determine your status on the spot, they will contact the federal government. As you have already seen, the last stage will likely involve your arrest until the police hears from the federal immigration authorities.
A “lawful contact” with the police happens pretty much any time an officer can perceive you with his or her senses. If the officer can hear you, see you, or smell you, that’s a lawful contact, so it doesn’t even have to be a stop or a question. But if you’re driving, there are plenty of lawful opportunities to pull you over. Also, asking you a question is not unlawful but it’s a contact. All of that may give the officer enough information to form a “reasonable suspicion” that you are an illegal alien.
What information is enough for that “reasonable suspicion” is the crux of the matter. The proposed law prohibits relying solely on “race, color or national origin … except to the extent permitted by the United States or Arizona Constitution.” It means the police can rely on these factors as long as they are not the only factors. And what about accent? Dress? Religion? Apparently, these could be sole factors in forming a reasonable suspicion. Regardless of how the courts will interpret these provisions in the future, what matters is how front-line police officers will have the freedom to apply them. This article assumes you will be in the US lawfully, so if you are detained under this law, you will be eventually exonerated and released. But an extremely upsetting and arbitrary detention is bad enough so you should know the risks.
After detaining you on a “reasonable suspicion” of illegal status, the officer will make a “reasonable attempt” to determine your status. That’s also an interesting part. The bill lists IDs that will give you a presumption of lawful status on the spot. All of them (except maybe the “tribal” card) are US federal or state issued. Most Canadians, of course, do not require any US-issued ID like visas to travel to the US. So most Canadians in Arizona will have a Canadian passport or a Canadian province-issued enhanced driver’s license. That’s why most Canadians initially stopped under this bill will not be presumed to have lawful status in the US.
This will trigger a verification with the US immigration authorities and a potential longer, miserable detention of a Canadian who is in the US on a perfectly lawful basis. And all it takes is a “reasonable suspicion.”
Obviously, drafters of this proposed Arizona statute didn’t think about millions of Canadians who lawfully visit the US without any US-issued papers. They probably didn’t even know. And that’s why laws should be passed by or at least coordinated with people with relevant jurisdiction and expertise. Immigration should be the sole competence of the US Congress and the US federal executive. They would know about Canadians, but how long will random Canadians have to spend in Arizona custody before state authorities get hold of the feds, if this bill is passed? Perhaps, Foreign Affairs Canada should monitor this proposed legislation and issue an appropriate warning to Canadians if Arizona Senate Bill 1070 becomes law.
(Post sponsored by AdviceScene)
Women in the Legal Profession
It’s 2010. Twenty-eight years ago, Canadian lawyers helped draft the Canadian Charter of Rights and Freedoms, guaranteeing, among other things, gender equality before and under the law. Canadian lawyers have also drafted provincial and federal human rights acts, and each of the law societies’ professional regulations, all of which prohibit public, non-governmental gender discrimination.
But like the old saying goes, “If you see smoke, don’t forget to check the fire station.”
Last year some classmates and I researched the issue of gender inequality in the legal profession. We were saddened to find that it does indeed exist, though it appears to be on a belated decline.
We interviewed two law professors at the University of Windsor on the issue. Here’s what they had to say:
To get involved in this important issue in Ontario, check out the Women’s Law Association of Ontario (WLAO), which has been “Speaking out for Women Lawyers Since 1919″. Or, help spread awareness and ideas online here, here, here, here or elsewhere.
And yes, “don’t forget to check the fire station” is not actually an old saying. However, once you abandon tradition you can find meaning in lots of new places.
Hatred Towards Jews and Muslims Linked
A person who hates Jews is more likely to hate Muslims as well, and vice versa. And people who go to a weekly religious service are less likely to hate a Muslim.
These findings come from Gallup poll results published this morning in a report, Religious Perceptions in America: With an In-Depth Analysis of U.S. Attitudes Toward Muslims and Islam.
Michelle Boorstein of the Washington Post said,
… the Gallup poll was prompted partly by Obama’s outreach to Muslim-majority societies and a desire to understand more about what shapes Americans’ views on Islam.
In a note accompanying the poll results, Gallup makes the argument that Americans’ prejudice against Muslims is at least partly fueled by misinformed beliefs. For example, people who believe Muslims worldwide oppose equal rights for men and women tend to be much more likely to report prejudice against Muslims.
The report states,
…feeling “a great deal” or extreme prejudice toward Muslims is not borne out of the absence of any information about Muslims, but rather arises from being exposed to negative media coverage of Islam and its followers.
This misinformation, especially through portrayals in the media, have a particular significance in the role of radicalization, as indicated in my published letter in the Globe yesterday. Daniel Simard and I also put together a paper related to this, Media Narratives in Times of Turmoil: Depictions of Minorities in Canada Post 9/11.
Boorstein also points to a Pew Forum poll showing that Muslims experience far more discrimination than any other group, by a wide margin.
The Gallop Poll found that 53% of Americans admitted to having negative views towards Islam, and 43% acknowledged some prejudice towards Muslims.
The report also states,
Variables Associated With Self-Reported Prejudice
Links Between Anti-Jewish and Anti-Muslim Prejudice
The variable most strongly linked to self-reported prejudice toward Muslims is self-reported prejudice toward Jews. Respondents who say they feel “a great deal” of prejudice — or extreme prejudice — toward Jews are about 32 times as likely to report feeling “a great deal” of prejudice toward Muslims. While Jewish-Muslim relations sometimes suffer because of the turbulence of the Israeli Palestinian conflict, among other reasons, these findings point to an area of potential cooperation for the two communities in addressing a common concern of prejudice toward each group. Previous Gallup research indicates that, compared with other religious groups in the U.S., Muslim Americans and Jewish Americans are most similar in terms of political ideology, education, and political party identification.
The findings should spurn greater cooperation between the Muslim and Jewish communities to work together in overcoming hatred and bigotry.
Problems finding rental housing?
Rights commission targets `blatant discrimination’ in rental-housing market
There’s obvious discrimination in rental housing, says the Ontario Human Rights Commission’s annual report released yesterday, identifying the problem as a key area that needs immediate intervention.
Foreign state denies Canadians entry because of names
Israel targets Palestinian-Canadians
Since Americans appearing to have Palestinian heritage are hit also, the US Administration is twisting Israelis’ arms to change the policy. Predictably, the Canadian government is silent.
Racism not an issue in Courtenay, mayor says
(post sponsored by advicescene.com)
Housing discrimination
Landlords trample on tenants’ human rights
(post sponsored by advicescene.com)
Finci v. Bosnia at the European Court of Human Rights
The author expresses her own opinions and does not necessarily reflect those of MRG as an organization.
The European Court of Human Rights, up until Wednesday June 3 2009 at 9:15am, had never heard a case on its merits under the new Protocol 12 provision. Protocol 12 provides a stand alone prohibition on differential treatment leading to discrimination.
Prior to the hearing that I attended at the Grand Chamber in Strasbourg, discrimination under the European Convention on Human Rights was dealt with only if the Court found that the discrimination fell within the ambit of another Convention provision. This meant that discrimination was always addressed within the context of another right already guaranteed. At times however, when the Court found an existing violation under a separate provision, discrimination issues were often left by the wayside.
Times have changed. Seated in the front row of the circular-shaped courtroom stacked with seventeen appointed judges from seventeen of the Council of Europe member states, I watched it happen. The case, Sejdić and Finci v. Bosnia and Herzegovina (no. 27996/06 and 34836/0), deals with two prominent members of Bosnian Herzegovinan (BiH) political society. One of Roma origin and one of Jewish faith, these two men are both prohibited by the Constitution of BiH from running for the highest levels of political office because of their ethnic and religious heritage. The BiH Constitution provides that only members of the “constituent peoples” (Serbs, Croats and Bosniacs) are eligible for these political positions. This exclusionary provision was included as a means of creating a legislative power-share arrangement amongst the warring factions following the ruthless ethnic conflict of the late 1990s.
But as counsel for the claimants argued, the time had come for the Constitution of BiH to live up to its international obligations under the Convention. As a legal intern for Minority Rights Group International (MRG), a London based NGO advocating for minority and aboriginal rights around the world, I was able to get directly involved in the issues presented to the Grand Chamber. MRG helped represent Mr. Finci, along with Clive Baldwin (formerly of MRG now at Human Rights Watch) and Sheri Rosenberg of Cardozo Law School in New York.
The arguments were simple, the politics are not. The exclusion of minority groups from running for certain levels of office in BiH is direct and obvious ethnic/religious discrimination; the most nefarious and troubling type. There exists no legitimate justification for this type of discrimination according to the case law, except in the most extreme of circumstances. The BiH government lawyers presented a tangled mess of justifications ranging from political instability to the outright powerlessness of the government to enact amendments to their own Constitution (despite having done so just one month prior).
It remains to be seen if the Court makes good use of Protocol 12 and orders the government of BiH to strike the exclusionary clause. For the sake of equality, democracy and the rule of law in the troubled state – we hope it does.
