RSS FeedThe Politicization of Justice Reform
This afternoon, Julian Falconer gave a talk at the Empire Club of Canada titled “The Politics of Punishment: Depoliticizing Justice Reform.” He focused primarily on the Harper government’s “tough on crime” agenda, and made some most interesting observations.
Canada spends $3.5 billion per year on crime. It costs $108,000 per year to incarcerate one inmate. Stephen Harper is proposing $5 billion in “tough on crime” spending, with none of the increase earmarked for crime prevention.
There is a systemic dilemma: in politics, proponents of judicial reform are forcibly grouped into one of two camps; Falconer referred to this division as “hug-a-thug vs. Law and Order.” If a politician questions the “tough on crime” approach, they are instantly categorized as weak, as someone who would embrace the criminal threatening your family.
Falconer compared Harper’s agenda to similar “tough on crime” agendas implemented decades ago in both California and New York State (largely part of the War on Drugs). Incarceration rates were dramatically increased, and today California houses 170,000 prisoners.
The American experiment has failed. While incarceration rates increased dramatically in the US compared to Canada, the crime rates of both countries remained similar. The US now has a financially unsustainable prison population, and nothing to show for it. Arnold Schwarzenegger has abandoned the “tough on crime” approach in favour of funding schools.
Studies have shown that incarceration raises an individual’s disposition toward crime. Incarceration disproportionately affects native communities, the poor, the mentally ill, and other disadvantaged groups. Yet instead of seeking to remedy the causes of crime, instead of seeking to ameliorate the conditions of these groups, we have the newly-minted Senator Bob Runciman crowing,
This despite the fact that crime rates have been dropping for years. This despite empirical evidence that tough-on-crime has failed in the US. The politicization of dialogue creates the false illusion of irreconcilable extremes. The reality should not be “hug-a-thug vs. Law and Order” – there is a solution that rests without the extremes.
“Bleeding hearts in law school”
On Friday, Kory Teneycke, a former top adviser to PM Stephen Harper, was interviewed on CTV’s Power Play about the Khadr decision:
Here’s a transcript of the best parts:
Aside from showcasing the Harper government’s ideological approach to human rights, Teneycke’s dialogue serves to remind us of the importance of the Charter with respect to individual rights. As eloquently stated by then-Chief Justice Dickson, the Charter safeguards minorities from the “tyranny of the majority” (R. v. Big M Drug Mart Ltd., [1985] S.C.J. No. 17 at para. 96).
I personally hope that most Canadians would prefer to see an alleged terrorist brought before our functional justice system, rather than lower our justice system to a terrorist-like level of disregard for human rights. But even if the Harper government, and the majority of Canadians, wouldn’t care to see Khadr treated as a human being, there is still Charter-based justification for the judiciary (and the “bleeding hearts in law school”) to seek protection of his fundamental rights.
With Parliament Suspended, Harper Proceeds with Secretive Treaty Negotiations
I’m very glad to see that the NDP is taking notice of the Harper government’s participation in the ongoing Anti-Counterfeiting Treaty Agreement (ACTA) negotiations. Despite a lack of transparency and public consultation, some controversial details of the proposed agreement have been leaked.
The proposed agreement would include a “three strikes” policy on suspected illegal downloading. Under this policy, users would have their internet access cut off after being accused of copyright violations three times, whether or not those allegations are true. In contrast to our constitutionally-entrenched presumption of innocence, the “three strikes” rule would allow rights holders and service providers to sanction users in the absence of any credible evidence or proof. It would create an untenable imbalance of power between rights holders, service providers, and users by placing the onus of disproof on those least capable of defending themselves.
Loss of access to the internet would be a severe consequence for many users. As Cory Doctorow has pointed out, online communication has become increasingly essential for daily life in terms of employment, access to government services, etc.:
I mean, it’s not as though internet access is something important right?
In the past week, I’ve only used the internet to contact my employers around the world, my MP in the UK, to participate in a European Commission expert proceeding, to find out why my infant daughter has broken out in tiny pink polka-dots, to communicate with a government whistle-blower who wants to know if I can help publish evidence of official corruption, to provide references for one former student (and follow-up advice to another), book my plane tickets, access my banking records, navigate the new Home Office immigration rules governing my visa, wire money to help pay for the headstone for my great uncle’s grave in Russia, and to send several Father’s Day cards (and receive some of my own).
The internet is only that wire that delivers freedom of speech, freedom of assembly, and freedom of the press in a single connection. It’s only vital to the livelihood, social lives, health, civic engagement, education and leisure of hundreds of millions of people (and growing every day).
This trivial bit of kit is so unimportant that it’s only natural that we equip the companies that brought us Police Academy 11, Windows Vista, Milli Vanilli and Celebrity Dancing With the Stars with wire-cutters that allow them to disconnect anyone in the country on their own say-so, without proving a solitary act of wrongdoing.
Beyond the troubling “three strikes” proposal, the ACTA has troubling implications for privacy, freedom of association, and the innovative potential of collaborative online projects.
Negotiations are taking place at a time when Parliament is suspended, preventing opposition MPs from holding the government accountable in question period.
Privacy is important. You should protect yours.
Panel Proclaims Prorogation Problem Political
An expert panel on prorogation was convened on Thursday at the University of Toronto’s Faculty of Law. The panel featured law professor David Schneiderman, director of Fair Vote Canada Larry Gordon, Globe & Mail correspondent Michael Valpy, and political science professor Simone Chambers, and its goal was to engage in dialogue about Stephen Harper’s second prorogation of Parliament within a year. The panel was organized by Law Students for Democracy, with Camille Labchuk and Daniel Goldbloom hosting and chairing, respectively, the discussion.
There were two fundamental questions that emerged from the debate: 1) is the latest prorogation legal? and 2) if legal, is the prorogation an ethical abuse of power?
It was conceded by all parties (with the exception of Larry Gordon, who spoke exclusively about voting reform) that the prorogation is legal. It is certainly the prerogative of the Prime Minister to ask the Governor-General to prorogue Parliament. Even if it is perhaps against the spirit of the constitution, there is no black-letter law against prorogation.
So if prorogation is legal, is it right? Without explicitly saying as much, the panellists suggested that the answer is No. Both Schneiderman and Valpy pointed out that the prorogation process has been substantively abused only three times since Confederation: by Stephen Harper in 2008 and 2009, and by Sir John A. Macdonald in 1873 to avoid an inquiry into the Pacific Railway scandal. Chambers argued that it’s a matter of degree: while every past prorogation has been for the advantage of the governing party in some capacity, one must examine the degree of partisanship with respect to the reasons claimed for proroguing.
What were Stephen Harper’s reasons for proroguing? Valpy stated the obvious, that all of Harper’s ostensible reasons are disingenuous (see e.g. the Economist critique of Harper’s “recalibration” reason). Schneiderman suggested that the real motivation was that Harper wanted to avoid having to turn over documents related to alleged complicity in Afghan detainee abuse. Schniederman detailed the history of Harper’s misleading claims that his government was legally obliged to keep the documents hidden – claims that were blown out of the water by Parliamentary law clerk Rob Walsh. Schneiderman suggested the possibility that, had he not prorogued, Harper and cabinet could have been forcibly removed from Parliament for not respecting the majority vote to turn over the documents.
Harper’s behaviour, said Schneiderman, is part of a broader agenda to Americanize the Canadian constitution – evidenced by Harper’s insistence on separation of powers between the Judiciary, Parliament, and the “Executive”; also evidenced by Harper’s desire for an elected Senate.
The panel agreed that the Governor-General did the correct thing in 2009 by agreeing to the prorogation. The Governor-General is not expected to interfere with political affairs beyond what is asked of her; her role today is primarily symbolic, and we wouldn’t want her to begin exercising her black-letter prerogative.
There was debate as to whether Parliament could create a statute governing prorogation. Chambers thought that this would require a constitutional amendment, which is very hard to effect practically. Schneiderman said that it might be possible, and a similar problem is playing out in Harper’s proposed Senate reform.
Perhaps the most crucial point came from Chambers. She said that while the 2009 prorogation is technically legal, it is dependent on the citizens to voice outrage at the audacity of Harper proroguing out of such blatant self-interest. The outrage is manifesting itself in the infamous facebook group, the 10-point hit that the Conservatives have taken in the polls, and the planned protests that will occur all over Canada tomorrow.
In short, the prorogation problem is a political one, not legal.
Are we Legally Required to Have an Election on October 19?
One of Stephen Harper’s first acts as Prime Minister was to enact Bill C-16, An Act to Amend the Canada Elections Act, which purported to establish the principle of fixed election dates in federal law. As it was sold to the public (and particularly to Conservatives of Reform-Alliance heritage), the law was supposed to curtail the power of the Prime Minister to unilaterally trigger an election at a time politically convenient to governing party. Harper would go on to betray his supporters by unilaterally triggering an election at a time politically convenient to the governing party. Recently, the Federal Court of Canada threw out a challenge to the legality of that decision which had been filed by Democracy Watch.
Bill C-16 essentially contains three parts. The first part says that we will have elections every 4 years on the third Monday of October. The second says that there will be federal election on October 19, 2009. The third part says that nothing in the first two parts affects the power of the Governor General to call an election. The specific wording of these provisions appears below:
56.1 (1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.
(2) Subject to subsection (1), each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Monday, October 19, 2009.
[Emphasis added.]
In the Federal Court’s decision, Justice Michel Shore emphasized that s. 56.1(1) essentially overrides the other provisions insofar as the Governor General is not prevented from calling an early election on the advice of the Prime Minister. However, the ruling in that case is limited in scope to the calling of an early election and does not specifically deal with the refusal of the Governor General to call an election on 19 October 2009, as mandated in the Elections Act.
In their apparent zeal to bring down the Harper government and trigger a federal election, it might be reasonable for the Liberal Party to raise the issue of the legal effect of s. 56.1(2) of the Elections Act, either privately with the Governor General or in the federal court system. In all likelihood a legal challenge would fail, given that s. 56.1(1) seems to undercut all of s. 56.1(2). However, raising this challenge in a public way might have strategic political benefits for the Liberals, regardless of the outcome.
If successful, the Liberals would get the federal election for which they have so much enthusiasm. If unsuccessful, the Liberals would have concrete proof of something that most legal scholars and political observers have long suspected: that Stephen Harper’s fixed election date law is a complete sham that is of no legal force whatsoever. That might give the Liberals an opportunity to regain a much-needed foothold in Western Canada, where Harper’s popularity is largely predicated on his Reform-Alliance credentials. The West, after all, wants in (or so I have read).
Besides, it would be a nice change of pace for the Liberals to take the Conservatives to court for once.
Who pays when government wrongs
Abdelrazik sues Ottawa for $27-million
For every breach of right, there should be a remedy. When government officials taint themselves with torture, it is taxpayers who pay the remedy. But maybe not just taxpayers…
Paul Koring writes:
Abousfian Abdelrazik is suing the government – and Foreign Minister Lawrence Cannon personally – for $27-million over Canada’s role in his arrest and alleged torture in Sudan and for violating his constitutional right to come home.
Federal Court rules on challenge to last year’s election
Watchdog failed to show 2008 vote illegal: Federal Court
Sue Bailey writes:
Harper asked the Governor General to dissolve Parliament last September despite his own fixed-date election law. That law set the next federal vote for Oct. 19, 2009 – or sooner, if the government lost a non-confidence vote.
Democracy Watch says Harper broke his promise of election reform and the spirit of the law in a blatant grab for majority power.
But Justice Shore said the group’s lawyer, Peter Rosenthal, gave only vague evidence as to how the snap campaign put opposition parties and voters at a disadvantage.
The Crown argued the Prime Minister had a right to “pre-empt a non-confidence vote,” despite the fixed-date election law.
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.
Kenney’s Canada: Who’s in, who’s out and who is getting kicked out
By Krystalline Kraus
Published on rabble.ca (http://www.rabble.ca), reproduced here on author’s request
Canadian Prime Minister Stephen Harper and Citizenship and Immigration Minister Jason Kenney have the political power to decide who they want to let into Canada and who they want to keep out.
Black Liquor Sparks New Trade Feud and Old Controversies
Is Canada listening to calls to assert our national interests?
On Thursday, Canada joined the EU, Brazil and Chile in demanding the withdrawal of tax credits in the U.S. for black liquor.
The credits are estimated at $4-8 billion, passed in 2007, and intended for energy alternatives in paper mills and cogeneration facilities. Paper manufacturers have started mixing F-T diesel with a kraft process byproduct known as black liquor to meet the definition of the tax credit, which Canada claims is hurting Canadian jobs.
Although President Obama wants to terminate the rebate on Oct. 1, Canada and the other countries are threatening action through the World Trade Organization (WTO).
In light of a global recession caused by what some consider fiscal mismanagement and overzealous deregulation in the U.S., Canada’s controversial and convoluted trade relationship with the U.S. warrants greater scrutiny.
Obama: End of Guantanamo and Good News for Omar Khadr
I have previously expressed my shame at the Canadian Government’s failure to follow the example of every other Western nation in demanding the repatriation of our citizen at Guantanamo Bay.
The advocacy in favour of Omar Khadr’s return to Canada has come from many circles. The calls have come from Sen. Romeo Dallaire, UNICEF, Amnesty International, and the Canadian Bar Association, among many others. Most consider Khadr to be a child soldier, and consider his detention and the military tribunal process to be a violation of the rule of law.
This choir of voices has finally reached a crescendo. I have good news to report.
President-elect Barack Obama has signalled his intention to close Guantanamo Bay forever – and he intends to do it soon.
In an interview with ABC’s “This Week,” Obama said:
I don’t want to be ambiguous about this. We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our Constitution.”
Reuters is reporting that Obama intends to close the prison perhaps within his first week after taking office:
“There is going to be an executive order on closing down Guantanamo,” the adviser told Reuters, adding the move would probably be made during Obama’s first several days in office.
What this means for Omar Khadr remains unclear. It will no doubt take time before the prison can be closed and its inmates transferred to face trial elsewhere. Most likely, this will mean an end to the military tribunals, which were denounced by the U.S. Supreme Court, in favour of domestic trials in U.S. Federal Court.
Stephen Harper, meanwhile, remains staunchly committed to leaving Khadr to be dealt with by the Americans, whether or not their process violates the rule of law. This is in spite of serious concerns raised by his own government lawyers. Harper is unsure of whether Obama’s announcement will substantively affect Khadr, but he remains defferential:
“The promise that president-elect Obama made was that he would close down the facilities at Guantanamo. That’s primarily, as I understand it, because of the objection to the fact that many of the people at that facility aren’t charged with anything,” he told reporters in Vancouver.
“I don’t think you can necessarily leap to the conclusion that it will affect people who have in fact been charged, and who are facing a legal process.”
One thing is clear: Omar Khadr’s languishing in that deplorable offshore prison will soon be at an end.
CBA Joins Fight to Repatriate Omar Khadr
The Canadian Bar Association has announced that it is joining with a number of other agencies to fight for the repatriation of Omar Khadr to Canada.
Omar Khadr, a 15-year-old boy at the time of his capture in Afghanistan, has been languishing in Guantanamo Bay since 2002.
Though the CBA has spoken out against Omar Khadr’s detention in the past, and has joined with other groups to call for the closure of Guantanamo Bay entirely, the Association has made the repatriation of Khadr one of its top priorities for this year.
In a statement to the House of Commons International Human Rights Subcommittee, the Bar Association explained that:
“Our commitment to justice is challenged where the individual is unpopular and accused of terrible crimes. It’s at times like this that we must speak out, and defend those rights. This is what the rule of law requires – that we recognize the rights of all, not just the favoured few.”
The CBA represents about 37,000 lawyers and law students across this country.
Podcast Feeds
Awards
Partners
- Advertise Here
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
The Whiners - The Elusive Fish Creative Services
- Mesothelioma Lawyer
- no win no fee solicitors
- Compensation Claims
- personal injury lawyer toronto
- no win no fee
- Pardons Canada Accident Claim Medical Negligence Whiplash Claim
- No win No fee Claims
- Venue
-
-
-
-
-
-
-
-
-
-
-
-
