RSS FeedIslamophobia in Canada: A Primer
by Fathima Cader and Sumayya Kassamali
Ten years after September 11, 2001, the term “Islamophobia,” once largely obscure, has become all but inevitable when discussing contemporary politics. As Al-Qaeda and Osama bin Laden became household names, Western fear of the world’s 1.5 billion Muslims has also grown. Canada has been no stranger to this phenomenon. Despite its reputation as a haven of multicultural tolerance, one 2011 poll showed that 56% of Canadians believe Western societies are in “irreconcilable conflict” with Muslim societies. 40% of the 1500 respondents approved the profiling of airplane passengers who appear Muslim. As Canada enters its seventh year of Conservative rule, how are progressives to understand and respond to this trend?
Islamophobia relies on characterizations of Islam and its adherents as uniquely prone to certain things, such as violence and sexism, and uniquely hostile to others, such as democracy and secular government. It includes discrimination based on perceived religious identity, such that non-Muslims, including Sikhs and Arab Christians, have also been targets of anti-Muslim violence in cases of “mistaken identity.” Meanwhile, Muslims in North America who do not appear to come from the Middle East or South Asia, such as Muslims of European or East Asian descent, have been less centrally targeted in this blurry overlap of religious and racial discrimination.
In this primer, we do not attempt to cover every instance of Islamophobia in Canada in the past decade. Rather, we provide an overview of its broad assumptions, particularly focusing on two themes that have proven central to discussions about Muslims: sexism and violence.
In offering this analysis, we stress that responses to Islamophobia must be placed within the context of Canada’s ongoing conservative political shift — from its increased military engagements around the world to its anti-immigrant policies at home, and from its vast cuts in social service funding to its ever-increasing levels of state surveillance. While numerous civil liberties and human rights organizations have reported on the rise of anti-Muslim hate crimes in Canada, we emphasize that Islamophobia is not just interpersonal: it is systemic. In fighting it, therefore, we must engage with the many other forms of oppression that also organize Canadian society.
You’re not the boss of me
Audrey Macklin and Lorne Waldman explain the concept of judicial independence to Jason Kenney:
“In a speech to the University of Western Ontario’s law faculty last week, Immigration Minister Jason Kenney launched an attack on Federal Court judges for rendering decisions he didn’t agree with. He suggested the judges were preventing him from properly administering the immigration program. [...]
The judges do not work, and should not be seen to work, for Prime Minister Stephen Harper or his immigration minister. And because of their special role in society, they aren’t expected to participate openly in the political process. Indeed, you haven’t heard the Federal Court respond to Mr. Kenney, despite his misrepresentation of cases, jurisprudence and statistical evidence. Judges don’t reply because they understand the importance of not becoming politicized.
When Mr. Kenney publicly criticizes judges for interpreting the law in a manner that diverges from his own preferred outcome, he shows contempt for judicial independence. That’s not to say the minister can’t take action when he disagrees with a court’s decision. As a member of cabinet, he has the power to introduce into Parliament amendments to any federal law. The cabinet may also pass regulations implementing existing law. The government possesses the unique jurisdiction to change the law to conform to his views. But using an address to a law school – of all places – to take potshots at judicial decisions the government doesn’t like is an inappropriate exploitation of political office.”
Restraint, Mr. Harper
While cramming a treatise for my last 1L exam, I came across a quote from the Law Reform Commission of Canada. The report titled Our Criminal Law was released in 1976, but it is just as relevant today:
But criminal law is not the only means of bolstering values. Nor is it necessarily always the best means. The fact is, criminal law is a blunt and costly instrument – blunt because it cannot have the human sensitivity of institutions like the family, the school, the church or the community, and costly since it imposes suffering, loss of liberty, and great expense.
So criminal law must be an instrument of last resort. It must be used as little as possible. The message must not be diluted by overkill – too many laws and offences and charges and prison sentences. Society’s ultimate weapon must stay sheathed as long as possible. The watchword is restraint – restraint applying to the scope of the criminal law, to the meaning of criminal guilt, to the use of the criminal trial and to the criminal sentence.
In a time of economic restraint, Prime Minister Harper is planning to increase Corrections Canada’s budget by 27%. While criminologists disagree about what causes crime, nearly all agree that incarceration DOES NOT REDUCE crime. And crime rates have been steadily falling for decades, so it stands to reason that whatever we’ve been doing is working.
Tom Flanagan justifies tough on crime by comparing 2010 to the 1960s, when crime rates were lower. Would that be the same 1960s when a woman could be legally raped by her husband? When the crime of sexual assault didn’t exist? Of course not, because Mr. Flanagan is looking at the world through the rose-coloured glasses of nostalgia. Those days won’t exist again because they never existed. Even if they could exist, tough on crime is simply not the route there.
Canada’s prison population is composed of a disturbingly disproportionate number of Aboriginal persons, as well as the formerly unemployed, the uneducated, the addicted, the poor. They are at the receiving end of the state’s most terrible weapon against its people. While society will reap no gain, marginalized groups will bear the hugest cost from the politicization of justice reform.
Parliament must not allow Mr. Harper’s tough on crime bills to pass. The opposition Liberals have a duty to refuse this wrongful policy. Political pandering must not trump the best interests of the country. The watchword is restraint.
Student Prop for Harper is a High-Risk Vocation
Law students should seriously contemplate their alternatives if ever approached to act as a student prop for the Prime Minister.
Not only was the reaction time disappointing, but the lack of empathy and concern expressed by Harper is rather alarming.
See more on A BCer in Toronto by Jeff Jedras.
The 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.
