RSS FeedKenney’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.
Rae: Canada Has Its Own Voice on the International Scene
Hon. Bob Rae spoke this morning at the University of Western Ontario Law School on A Changing World: New Directions for Canadian Foreign Policy. What follows are notes (not a transcript) from his talk.
Law Students and Public Policy
Rae said that Canadian foreign policy as an issue that is a significant one in the politics of the country. As soon to be lawyers, the issue of Canada’s role in the world is a critical concern to all of us, and one that has tremendous opportunities as law students.
There is no clearer area of public policy where the ideological contrast between parties can be demonstrated. Western has produced some of the great legal minds of our time. Justice Rand, a former Dean of the school, made considerable contributions to the foreign policy of this country.
What is Canada’s Role?
Rae asked whether Is Canada’s role in the world is to essentially ally itself with the U.S. in terms of American foreign policy and position in the world. Or is Canada’s voice in the world one of greater independence – one in which we look to Canada’ expressing strong support for multilateralism, international law, and support for multilateral institutions in relation to trade relationships.
It seems over the past 50 years there has been an implicit debate in the country over these issues, and that Harper has now made this debate explicit. His view in the world is quite simple: Canada is a country whose values and interests are tied up with the U.S., who is our most important trade partner. Our primary role is therefore to be an ally and supporter of the U.S. Other areas of foreign policy are all subordinate to that. That is the key relationship, the driving force between Canada’s role in the world.
This is a view that puts a great deal of emphasis on military power, and expects that Canada has to play a much stronger role in the military side of the equation. It downplays Canada’s traditional role at UN in supporting international institutions. Our efforts against land mines and in support of the International Criminal Court are examples of this.
War in Iraq
Rae pointed to two speeches of by Howard Hampton and Stephen Harper at time of Iraq war. His point was made by a choice made by Chretien at the time – Canada was not willing to participate in invasion of Iraq. Harper saying yes we will. Interesting enough, the words he used were borrowed from President of Australia.
Canada’s decision not to participate in the Iraq war was a defining moment, and was based on two major factors:
- The existence of WMDs
- An imminent threat
The Canadian government did not believe Saddam had WMDs, or that the evidence supporting assertion was in any way adequate. The U.S. relying on secret information, but the information provided from Hans Blix could not justify assertion.
If Canada didn’t have that information, it would still have to establish some other idea as to why it is justified as act of outside invasion. Canada’s position was clear – but the U.S. and U.K. was emphatically on the other side that whether or not there were WMDs, the risk justified invasion.
It took courage for Chretien and Graham to explain to Canadians why we were not joining our two closest allies. Now people say it’s a no-brainer – because we look at it retrospectively at the mess it created. It was controversial at time, and the criticism came mostly from Harper, who bought Bush/Blair doctrine. Harper insisted that was where Canada’s interests lay, where our values should take us.
Economic Relations
When it comes to trade relations it was Mulroney, following Royal Commission Report, that took the great leap towards negotitiations on free trade that eventually became NAFTA. Mulroney believed that if we could get from out underneath the U.S. trade umbrella and trade harrassment it would be a great deal for Canada. We would benefit from coming firmly within an America economic framework, and at the same time free ourselves from trade harassment.
By way of contrast, many people believe our long term protection is not in bliateral protection but with many countries that include the Americans. The history of our free trade is well-known, and we are going to experience its full effects in the next major while.
And we have not been able to free ourselves from trade harassment. The U.S. Senate is based on states where less than 20 percent of population control 50 percent of Senate, and is therefore dominated by agriculture and natural resource interests. The U.S likes to portray itself as supportive of free trade, but it actually relies far less on free trade than any of its trading partners.
This is just another example of where our decisions to make a special deal has actually proved short sighted.
A Foreign Policy that is Our Own Voice
Whether it is on the economic or political side, do we want to have a foreign policy where we find our own voice, or do we see ourselves as essentially being the junior partners in the American enterprise?
In recent days that choice has become very clear and sharp, and a clear example of that is the case of Omar Khadr, a Canadian citizen. He grew up in Afghanistan and was eventually captured and charged in the efforts to kill an American soldier, and has since been incarcerated in Guanatanamo Bay for that last few years.
We have to try to understand what this issue means for Canada. It’s not just about the politics of do we like what he did or was accused of doing. There are two major issues:
- What do we do with child soldiers?
- What do we do with Canadians in these situations?
There have been enormous procedural delays in his trial, with the head of the military tribunal recently being replaced. There have been two recent Supreme Court cases in the U.S. critical of Guantanamo, and how it is being administered by the American government.
They stated that the law of habeas corpus does apply, and that it is not simply possible to incarcerate people without letting them know what htey have been charged with. These are fundamental principles of our justice system. The second case is worth reading simply to review the very basics of habeas corpus and its role in the legal system.
Canada is a signatory to the international treaty aimed at rehabilitating child soldiers. It’s fundamental to get these people out to rehabilitate them to let them continue on with their lives.
Sri Lanka has an issue with this on the rebel side, where people can be recruited as young as 12 and sent into battle by the age of 14 or 15. If you capture them, what do you do? Do you treat them as a soldier, as a child, or as a child soldier?
There are protocols that have to be followed. The U.S. military tribunal has said we are not interested in this, and it does not pertain to the treatment of Omar Khadr.
The Question for Canada
The question for Canada is that we’ve gone along for a long time to see what kind of justice people like Omar Khadr can get. We said, let’s hold judgment until we see what kind of treatment he gets.
And frankly, we’ve seen quite enough.
Senator Obama and McCain have both said they would close Guantanamo, and find another method to try people that are there.
We can also look at the issue of members of the Uighur community of Xinjiang in Western China, which has long issues with the extent of which it is being ruled and human rights issues. How do we respond as a country when dealing with the possibility of courts where we disagree with their approach to a legal system?
In the case of Guantanamo, it puts us in a ridiculous position where the only person thinking Omar Khadr should stay in the U.S. and would get a fair trial in the U.S. is Stephen Harper.
Again, even McCain says it should be closed. This is an absurd position for Canada to be in.
Differing with America is not Anti-Americanism
Mr. Rae also distinguished the mission in Afghanistan from that in Iraq. The U.N. agreed to the mission. contrary to Iraq. We believed we were going there to help set up a new government and support them.
The Liberals would like to change the focus to reflect this interest, away from military activities to training the Afghan army and politically helping the government create a more stable arrangement. The 2011 withdrawal date was what was initially agreed upon by parliament, and when all countries said the mission would come to an end.
These are the principles we should try to apply: that we intervene when we believe it is lawful to do so, and when it is justified by international law.
Canada is not a superpower. It is not an empire, and we do not have imperial ambitions. All we want to do is participate in a stable international world order.
That is why we’ve been such strong supporters of the U.N. The Universal Declaration of Human Rights was drafted by a Canadian after all.
Our interests as a small country, a relatively small power, are different from that of our neighbours. It means we will agree and disagree from time to time. It does not mean we are anti-American, it just means we have different interests.
Get Involved as Law Students
There are many ways you can be involved and engaged in this world.
Your generation has more opportunity to see more, to do more, to be more engaged than any generation in hum history.
Try to make a difference. Find out what gives you passion, and take those ideals and interests wherever you may go.
“My views on the abortion issue are complex. I don’t fall into any of the…polar extremes on this issue”
This statement summarizes the personal attitude that Prime Minister Stephen Harper takes on “the abortion issue.” This was during the 2006 election campaign, at a time when the Liberals raised alarm over the Conservatives’ position on abortion. Again, in 2008, with a minority government reportedly at the brink of dissolution, Canadians are witnessing the same limited and polarized discussion (see the recent Dion challenge to Harper here).
An event that enlivened the debate on abortion was the recent appointment of Dr. Henry Morgentaler to the order of Canada. This created so much controversy that Chief Justice Beverly McLachlin was subject to a complaint for chairing the Advisory Council, which recommended Morgentaler to the order. The current discourse on abortion in Canada can be summarized as confrontational rhetoric between pro-life and pro-choice, that is, the right to life of a fetus and the individual right of women to their bodies. While this discussion would have been relevant in 1988; the year Morgentaler and fellow doctors won their case that struck down section 251 of the Criminal Code, today, we might as well contemplate Mr. Harper’s ambiguous statement for what it could mean, not in relation to Mr. Harper or Mr. Dion’s political scores but to the interested persons (used loosely) involved.
The reaction to the Morgentaler affair today is also about how we make law. Canada still has no laws regulating the practice of abortion. This is an outlook that not even the Supreme Court intended in R. v. Morgentaler, [1988] 1 S.C.R. 30. In a 5-2 decision with four separate judgments, the majority merely agreed to strike down section 251 of the Criminal Code. The 1969 Abortion Law required the assent of three members of a therapeutic committee in an accredited hospital to deem the abortion necessary if it would likely endanger the woman’s health or life. Morgentaler’s defense suggested this law infringes on women’s right to freedom of conscious and religion, to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, not to be subjected to any cruel and unusual treatment or punishment, to be equal before and under the law and to equal protection and benefit of the law without discrimination. The constitutional questions before the Supreme Court were the following:
1. Does section 251 of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?
2. If section 251 of the Criminal Code infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is s. 251 justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
3. Is section 251 of the Criminal Code ultra vires the Parliament of Canada?
4. Does section 251 of the Criminal Code violate s. 96 of the Constitution Act, 1867?
5. Does section 251 of the Criminal Code unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?
6. Do sections 605 and 610(3) of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Charter?
7. If sections 605 and 610(3) of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d) 11(f), 11(h) and 24(1) of the Charter, are ss. 605 and 610(3) justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
Indeed, Dickson C.J. and Lamer J found the impugned law in violation of the right to security of the person and that it cannot be saved by meeting the procedural standards of fundamental justice. The procedural requirements to section 251 of the Criminal Code were also found to put women’s health at risk because of delays in obtaining the assent of the therapeutic committee, lack of guidelines and availability of accredited hospitals. Beetz and Estey JJ. found that the means to protecting the foetus did more harm than was proportional to the good and thus failed the “reasonable limit clause” test under the Charter. The five judges, including Bertha Wilson – who provided the most comprehensive defense to women’s physical autonomy – did not provide a right to abortion, nor was there a suggestion that another regulatory law cannot necessarily meet constitutional standards.
Three attempts were made by the government of the day to respond to the Supreme Court reasoning, but failed. Our political representative did not go beyond the Supreme Court’s ruling that abortion was not unlawful. And that summarizes the state of the law today and how we got there. The disquiet, outrage and complaints over the law surrounding abortion when no legislation exists in Canada is not surprising. The surprising aspect however, is the oversimplification of the issue that is reduced to the question of to abort or not to abort and summarized in the person of Dr. Morgentaler. Meanwhile, other relevant and broader debates on child rearing responsibility, welfare, health care, affordable housing, shelters, mental health, access to higher education, job parity and minimum wage – all of which deal with structural reforms that may reduce the number of abortions without robbing women the right to choose, are not tackled.
Criminal law can do so much to create a good society and the courts can go only so far in shaping social practices and norms based on a single case. Nearly two decades after the Supreme Court ruling, that single case continues to dominate and limit the discussion. Maybe the ambiguity in Mr. Harper’s statement is not to divert but to point out that the complexity of the issues involved in the act of abortion does not just fit in the current debate on abortion; and that is worth contemplating.
Cross-posted from The Court.
Harper Abusing Legal System
Tim Naumetz of The Star reports,
“This use of legal action to silence the opposition is characteristic of authoritarian governments,” Russell says in an expert opinion obtained by Toronto lawyer Chris Paliare, representing the Liberals.
“It is incompatible with democratic government,” argues Russell, a political scientist and professor emeritus at the university.
The reference to authoritarian rule and the rare constitutional challenge of Harper’s libel action revolve around his request for a court order to prevent the Liberal party from using or distributing copies of an audio tape at the centre of the suit.
According to Paliare, the Liberals will test the constitutionality of Harper’s actions on the basis that it has been launched as a Prime Minister, rather than a private citizen.
A Country Run by the Mob(osphere)
When “free speechers” publish letters by lawyers or put legal proceedings online, they themselves are attacking free speech by attempting to intimidate legal proceedings [same applies for when their supporters attack websites].
That’s what John W. Dozier claims, in his American piece on Copyright Rights and Free Speech,
The first intended use is for it to chill the rights of businesses to speak without fear of a mob attack. It is often published to incite an overwhelming force to attack a business in many ways, both legal and illegal, and to intimidate businesses into submission. The publication itself, in this context, is an attack on our free speech rights. Chilling effect is an understatement. The second is even more obvious. If the business decides to move forward, the recipient uses the threat of posting it to gain an advantage in the legal dispute. The threat is not one founded upon the public’s right to know. It is founded upon a belief that the threat of publication of the cease and desist letter will get the recipient a better “financial settlement”, which is often a nice way of saying that “if you pay me off I will stop the attacks and remove the postings about your company, and if not, well, you’ll have to suffer the consequences “. That, my friends, smells of extortion. But it happens every day. These public interest and free speech groups know it…
Dozier terms such collectives as the “mobosphere,” and provides services to clients who are attacked by these organized groups.
The typically American problem has slowly entered Canada by right-wing groups pursuing similar tactics.
But some lawyers are pushing back.
Richard Warman, the lawyer who has championed human rights against neo-Nazi groups before tribunals, is suing a whole slew of far-right blogs claiming they have libeled him.
But Warman has also named the National Post is his proceedings, demonstrating the complex and often incestuous relationship between some publications in Canada and the far-right.
A Far-Right Bias in Media?
Canadians have overwhelmingly suspected and complained of a strong right-wing media bias in our country.
But their concerns have in many ways been confirmed with the presence of Prime Minister Stephen Harper at a party celebrating CanWest Global‘s expansion, led by CEO Leonard Asper. They are now the country’s largest media company, and are even launching their own news wire service to compete with Canadian Press.
Lawrence Martin said in the Globe and Mail,
Their continued ascendancy is a major blow — tilt the message and you gradually tilt the mind — to the left and to moderates. The Aspers make no bones about their conservative bias.
The Aspers attempt to defend themselves by saying that a philosophical bias in no way means a conservative reporting bias. But some would beg to differ.
Robert Fisk of the Independant has raised concerns about bias in the American media. But these are nothing compared to what we see in Canada,
In Canada, the situation is even worse. Canwest, owned by Israel [Izzy] Asper [at the time], owns over 130 newspapers in Canada, including 14 city dailies and one of the country’s largest papers, the National Post. His “journalists” have attacked colleagues who have deviated from Mr Asper’s pro-Israel editorials. As Index on Censorship reported, Bill Marsden, an investigative reporter for the Montreal Gazette has been monitoring Canwest’s interference with its own papers. “They do not want any criticism of Israel,” he wrote. “We do not run in our newspaper op-ed pieces that express criticism of Israel and what it is doing in the Middle East…”
David Beers of The Tyee explains how the Aspers forced their papers to publish editorials from their headquarters, and fired journalists that disagreed with their positions.
Research has shown again and again that “those election issues covered prominently in the news media tend to be perceived by the public as the most important election issues. Items buried tend not to make it on the agenda for public discussion.” Edge says the message is clear: “While the media can not tell us what to think, they are very influential in telling us what to think about. The way these stories are covered not only tell us what to think about, but how we think about it.”
Balance Needed
A true democracy with real freedom of speech requires dialogue on both sides of any debate, what the courts have termed, “the marketplace of ideas.” But even this concept has its limitation, as stated in R v. Keegstra [1990] S.C.J. No. 131,
Freedom of expression is seen as a means of promoting a “marketplace of ideas”, in which competing ideas vie for supremacy to the end of attaining the truth. The “marketplace of ideas” metaphor was coined by Justice Oliver Wendell Holmes, in his famous dissent in Abrams v. United States, 250 U.S. 616 (1919). This approach, however, has been criticized on the ground that there is no guarantee that the free expression of ideas will in fact lead to the truth. Indeed, as history attests, it is quite possible that dangerous, destructive and inherently untrue ideas may prevail, at least in the short run.”
Courts have also recognized that when dealing with vulnerable minorities, an equal exchange may not always be possible. Irwin Toy Ltd. v. Quebec (Attorney General) examined the vulnerability of children, for example, at the hands of corporations,
The concern is for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising…
Thus, in matching means to ends and asking whether rights or freedoms are impaired as little as possible, a legislature mediating between the claims of competing groups will be forced to strike a balance without the benefit of absolute certainty concerning how that balance is best struck. Vulnerable groups will claim the need for protection by the government whereas other groups and individuals will assert that the government should not intrude. In Edwards Books and Art Ltd., supra, Dickson C.J. expressed an important concern about the situation of vulnerable groups (at p. 779):
In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.
A Dangerous Threat
Izzy Asper is the same individual who wanted to move the capital of Canada from Ottawa to his hometown Winipeg, obviously in complete disregard to the importance of Quebecois in Canadian society. He would strangely lobby from within the Liberal party, while making significant financial contributions to the Conservatives.
The company, now run by Izzy’s son, poses such a threat to Canadian society that some have written entire books on it. Marc Edge is the author of Asper Nation: Canada’s Most Dangerous Media Company.
Beers asks,
But even if CanWest owns dozens of newspaper across the nation along with Global TV and other television stations reaching 94 per cent of all Canadians, and even if CEO Leonard Asper has said he aims to make his company one of the top five media companies on the planet, how much torque can the Aspers really put on our democratic process?
Enough, it seems. What’s really scary is how these perspectives may change the fabric of Canada itself. Martin says,
You alter the character of a country by changing how it sees itself. You can change how it sees itself by changing the character of its media. Led by the Aspers, the character of Canadian media is changing.
Modern history has seen fascism, communism, brutal dictatorships, and liberal democracies. What exactly would we call a political system that is run by the media?
The 20th c. had the mafia and the mob. The 21st c. might just have the mobosphere, unless the public and politicians are alerted to this potential threat.
