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Why should I care about the Supreme Court?

Posted by Don McLenaghen on May 18, 2011

Supreme Court of Canada

Where does it fit in?

Although established at the inception of our nation, the original the Supreme Court of Canada was not supreme; in fact until the British Privy Council was abolished in 1949 it was last court of appeal. There was a sort of limbo for our legal system until the repatriation of our constitution in 1982 at which point the court truly was supreme. Since 1982 not only does the Supreme Court rule on the letter of the law; they also interpret the meaning of and implementation of the Constitution and Charter of Rights as well as a unique role of answering ‘reference questions’. Reference questions occur when the Governor General (on the behalf of the PM) asks the court if a proposed law would be constitutional or not; a prejudgment of law as it were.

Why are they important?

Although parliament may make law, how that law is actually enforced in our country or IF it is allowed to remain a law at all lies in the hands of the Supreme Court. One great example was the legality of Abortion; for decades the Supreme Court upheld limitations on abortion however in 1988 the court struck down our laws and to this date we have no law on abortion…we are one of the few countries that treat abortion as a purely medical matter between doctor and patient. Similar landmarks occurred with regard to the recognition of Aboriginal rights or the definition of hate speech and the limitation of free speech.

Who are they?

Currently there are 9 members of the SC of C. By law, 3 must be appointed from Quebec, by tradition 3 from Ontario, 2 from “the West” and 1 from the Maritimes. For a case to be heard by the court, it must first be approved of by a committee of at least 3 justices. This means that before any case even reaches the Supreme Court it must first be approved by a this committee; this is the first opportunity for the ideology of the justices can influence the way our constitution and laws are implemented.

Once a case is approved, it is then heard by any from 5 to 9 judges unlike the American Court there cases are heard by the complete 9 court members. At the moment, of the 9 justices 6 have been appointed by the Liberals and 3 by the Conservatives however in the next 4 years, 4 more members are to be replaced due to forced retirement and that does not include those who quite for other reasons. This point is brought home by the recent announcement of Justice Louise Charron who is retiring early for personal reasons. At present these retirements will allow Harper to appoint at least 7 of the 9 justices.

How are they appointed?

First, there are two parts of our Canadian constitution – legislative and convention. The legislative are those parts of our constitution that are written down…such as the Constitution Act of 1982 or our Charter of Rights and Freedoms…they are physical documents that set down in words the rule of law. Another part is the convention part…those procedures that are followed not because they are prescribed in law but by tradition…they have always been done that way.

An example of this is the Governor General does not HAVE to sign a bill into law; there is no legal requirement or a legal means for the Parliament to sidestep the necessity of the Royal Assent. However, by convention the GG has never refused to give consent to a bill passed by Parliament although one Lieutenant Governor did refuse to sign three laws in 1937 that he felt were unconstitutional; a belief that was upheld by the Supreme Court/Privy Council.

The appointment of Justices to the Supreme Courts largely falls into the convention part of our constitution. Technically the GG appoints them on the advice of the Privy Council…in fact they are selected solely by the whim of Prime Minister. However by law[1] they must be members of the Bar (i.e. lawyers or judges) and by convention, the PM selects the Justices from candidates presented to him by a judicial advisory committee of the provinces ‘due’ a justice (to maintain the balance mentioned earlier. For “the west”, each province rotates, so one justice comes from BC, the next from Alberta…etc.; this also occurs in the Maritimes).

There have be over time many complaints about the power invested in the PM to “stack the deck” with ideologically friendly justices, that there was no input from the Parliament in the appointment and there was a lack of transparency in the process. In response to these criticism, Prime Minister Paul Martin in 2004 attempted to set up a committee to review nominees however this process became politicised when the Conservatives on the committee refused to sign off on the report from the committee because they felt the powers they had were insufficient; desiring a system that emulated the process in the USA where justices must be voted on by the senate prior to appointment…a process that is now considered a hyper-partisan inquisition. In response, the process was amended so as to allow the committee to select the “top three” candidates from a list of 7, one of which the PM would then select. Once in power, Harper did set up a review committee for his first nominee but quickly abandoned the idea and appointed the nominee of his choice stating that the process was too slow and political.

Lesson south of the border

caveat – it has been brought to my attention that the following paragraph is presented in a less than flattering light with some literary and political licence. As my readers probably know by now my political leanings are a little left of extreme left, so in my discussion of the US Supreme Court, I hope you will understand that I believe what I am writing to be honest and fair is not exactly balanced however one may wish to read it with “a grain of salt”[2]>

After years of lobbying and concerted effort the American Supreme Court has become what appears to be the judicial branch of the Republican Party promoting a right-wing corporatist agenda. For example, Clarence Thomas[3] and Antoni Scalia[4] have been noteworthy and active participants at a number of Neo-con gatherings with Thomas’s wife being a lobbyist for the prominent Tea-party group[5]. Having successive far right justices being promoted to the court (Clarence Thomas, Antonin Scalia and Samuel Alito being the worst with John Roberts, Anthony Kennedy not much better), the current court has become infamous for its patrician decisions including what has been called the Supreme Court coup d’état of 2000, the Citizens United case and many more. Don’t get me wrong, with the possible exception of the ruling on the “Florida Election Recount of 2000”, the courts are not ‘creating’ law but how they interpret laws and how they word their verdicts have wide ranging implications. My point is to show why and how the justices are important.

Let’s take a look at judicial philosophy; in the US there is a debate about how the constitution should be interpreted (one I am sure will become common here). On the one side you have what are called “living constitutionalist”, who believe that when the constitution was written the authors accepted that as time changes the interpretation of the constitution would change…that like a living creature the constitution (and the law it would give rise to) would evolve. A great example is the status of African Americans and their civil liberties. As society changed so did the depth and breadth of civil liberties.

On the other hand there is what is called Literalist or Originalist. They hold that what is written is written in stone, which comparing the constitution to a ‘living creature’ one would have to be, using the words of Justice Scalia, an “idiot”[6]. To them it is from the original meaning of the words used and not the intent of the founders, which should form the basis of interpreting the constitution. For example, capital punishment has been largely banned from civilized countries because it is seen as ‘cruel and unusual punishment’ and therefore a violation of civil rights. Justice Scalia would argue that capital punishment, at the time of the writing of the applicable part of the constitution (8th amendment), was not seen as cruel or unusual punishment therefor it does not violate civil rights and should therefore be legal[7].

Who is on the court can have a huge impact not only on what they rule but on what they see as their powers of interpretation…the very philosophical foundation of the rule of law.

Beyond how the constitution or laws are interpreted, the scope of the ruling can also have a wide ranging impact. In the US (they tend to provide more colourful, extreme and clear examples) the case of Citizens United was to determine that a third party could release a documentary about Hilary Clinton during the Primaries in the US. Clinton got an injunction because of the bias nature of the film, Clinton argued it was actual political advertising and as such violated electioneering laws. The case in the narrow sense was an issue of broadcasting rights but out of character for this court, Chief Justice Roberts decided to rule on an issue not actually part of the plaintiffs case; that being the financing of the film. This was unusual because the plaintiff (Citizens United) had already abandoned facial complaints[8]. In a landmark decision the Roberts case essentially struck down election advertising rules.

Who is on the court can have a huge impact not only on what they rule but on what they see as the question.

In Canada, our constitution is seen differently than the American one. We follow, for now, a doctrine of interpretation called Living Tree Doctrine or Doctrine of Progressive Interpretation. Lord Sankey stated: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” This means that the Constitution cannot be interpreted in the same way as an ordinary statute. Rather, it must be read within the context of society to ensure that it adapts and reflects changes.

Why should skeptics worry?

The worry we may have is that as PM, Harper has shown signs of being both extremely controlling and dictatorial. A number of political commentators have expressed concern and surprise at the level of control Harper has maintained over his party and the level of contempt for parliament in general. Remember the Conservatives were convicted of contempt of Parliament in part for lying to parliament and in part for refusing to provide government information to committees over public policy. In articles written in the Globe and Mail[9] and the National Post[10], concern was raised over the possible radical direction the court may take on if Harper’s selection, for the Supreme Court of the land, should be of a similar ideological mind as his own.

IF the fears that he does have intention, now that he has a majority to promote a neo-con agenda, the Supreme Court may be the only restraining force left in the land. Now although personally I find most of the conservative government’s policies wrong, many of them are open to valid debate this is not why I fear what Harper may do to our judiciary; what I worry about is the likelihood that Harper will take his tendencies to ideologically dictate political policy to the judiciary and that some of those ideologies should be of concern not just to leftist but skeptics in general. Some issues that may be of concern: Harper seems to be a Climate Change Denier, there have been many members of his party who wish to put restriction on marriage and abortion based on religious grounds, G20 has shown that there is a lack of respect of political and individual rights, and with his conviction of contempt of parliament and election fraud one must wonder where he may lead the country in the future.

As skeptics we must remain informed, aware and poised to action. We should insist that appointees to the Supreme Courts…any court…should base their decision on law or on science based principles…and not on political ideology or religious theology.

Upcoming cases…

Charter of Rights – Reasonable limits prescribed by law [11]

Legality of the Safe injection site – Does the Controlled Drugs and Substances Act violate the Charter of Rights because enforcement has grossly disproportionate effects on addicted persons

Hate Speech –

The Christian Truth Activists distributed four flyers in the mailboxes of various homes in Saskatoon and Regina in 2001 and 2002. Four persons who received the flyers filed complaints alleging that the material in them “promotes hatred against individuals because of their sexual orientation”. The Saskatchewan Human Rights Commission held the pamphlets, which referred to “sodomy marriage” and graphically described sexual behaviours in a derogatory manner, was hate speech.

The Christian Truth Activists argue first it does not count for it does not single out a group based on sexual orientation but a sexual behaviour and that further that IF the law does apply to sexual behaviour, then the definition of sexual orientation is overbroad in its definition.

Environmental Law[12]

Abitibi-Bowater Inc. has argued that a statutory duty to remove environmental contamination may be extinguished under the Companies’ Creditors Arrangement Act like a commercial debt. Companies’ Creditors Arrangement Act is a Federal Act that allows financially troubled corporations the opportunity to restructure their affairs to avoid bankruptcy. The Government of Newfoundland issued several environmental protection orders for Abitibi to clean up land it had contaminated by its large scale industrial activities. Abitibi argued that when it filed for a restructuring it freed itself of the obligation of the clean-up orders. The court must determine if government orders are legally equivalent to ‘commercial debit’ claims.

Intellectual Property[13]

Bell Canada argued that providing previews consisting of excerpts of works is fair dealing for the purpose of research that does not infringe copyright.

Some commercial internet sites that sell downloads of works allow users to preview the works. A preview typically consists of an extract taken from the work, for example a 30-second extract of a musical track, streamed online and accessible to consumers. On October 18, 2007, the Copyright Board of Canada decided that royalties should be collected for these communications.

Charter of Rights – Freedom of conscience and religion[14]

Mandatory attendance to an “ethics and religion” class – Ethics and Religious Culture program became mandatory in elementary schools. Based on the experience of an older child, a family requested an exemption for the course because serious harm disruption caused by forced, premature contact with a series of beliefs that were mostly incompatible with those of the family, as well as the adverse effect on the religious faith of the members of this family. The school board refused to grant the exemption.

[5] The consulting firm she set up in 2011 was Liberty Consulting; previously she was employed by Tea Party-affiliated Liberty Central and earlier by the right-wing Heritage Foundation.

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What went wrong at the G20 meeting in Toronto? – Pt 2

Posted by Don McLenaghen on July 19, 2010

Part 2 – Intimidation is the new Freedom

Are we taking our rights and freedoms for granted here? Is the media being distracted by showing propaganda while missing the ‘important’ issues? As the second part of my look at the G20, let’s check out the role of the security forces and what they mean for us.

The once of the main reason for the expense was to protect the delegates from terrorists and the people of Toronto from ‘black bloc’ anarchist “Thugs”. To accomplish this there was the largest single mobilization of security forces in Canadian history outside of war time[1]. Anywhere from 10, 000 to 20, 000 security forces (the vast majority being state officers) where set upon what was at best 4,000 protests[2].

The Toronto event in saw the largest mass arrest, almost a thousand people, in the history of this country…including the FLQ crisis and the imposition of martial law in the 70s (around 500 were arrested then). The HIGHEST estimate of the dreaded ‘Black Bloc’ was 100. The Black Bloc are self-described (and often governmentally described) activist who exercise an aggressive civil disobedience of smashing in corporate windows and painting anarchist slogans.

Now, with that number of security forces did they at prevent the destruction of property or injury of people?

Well, there were a number of people who were injured (by all of them claim it was the security forces that caused their injuries). What about property damage? Well dozens of windows were broken (mostly for multinational chains) and some minor damage by way of political graffiti. However, from the way the government officials spun things, back up by an overly critical press, downtown was a war zone; an image that was supported by the mass number of imposing security forces and, perhaps the iconic image of the G20, the torched of police cars.

Before I go on the talk about the press images, I have to ask – what were the police doing while the ‘black bloc’ protested? They were there; they did apparently smash windows and plaster graffiti. They security forced did nothing! It was as though they wanted the bloc to have the chance to justify the security forces presence. This is why is you check the video/images of the G20, you never see the police clashing with the bloc. There is great talk about past clashed (in Genoa) but the security forces seem to have allowed the bloc free reign over the city. So, then why have so many security officers?

I shall now return to the Miami Model I mentioned last post. This is a set of tactics that were used by the Miami policy to prevent the ‘disruption’ of the meeting of those negotiating the Free Trade of the Americas Agreement. The participants did not want a repeat of past events where ‘their’ efforts of ‘codify’ the neo-liberal model (such as that attempted with the Multilateral Agreement on Investment) derailed by popular protest and activism.

Of importance to us is certain tactics used to ensure both a passive demonstrations as well as to ensure a favourable image for the security forces themselves. Amnesty international, among others, refer to them as brutal intimidation techniques. The techniques used that I know of:

Pre-emptive contextualizing: This means ensuring lots of news stories, mostly rooted in official news releases, warning about the potential danger of “rogue” protesters who will turn the peaceful demonstrations into orgies of violence. This often includes pre-arrest of people and the ‘discovery’ of a cache of weapons. A notable example was a camper who was ‘driving slowly’ days prior to the event. Upon a search of his car they discovered an axe, a chain-saw, gas (presumable for the chain-saw), hunting equipment and other things you would have to go out in the country[3]. Further, great press was made of the security expert Byron Sonne who was arrested for ‘terrorist activity’. The fact that he had publicly informed the security community that he was attempting to test and show the futility of the security planning for the G20 was never mentioned (in the popular press). That, although stung by his own activities, he was never a ‘real’ terrorist but was useful in creating the proper context the security forces wished to establish prior to the event.

Also in the lead up, and often mentioned in news stories without any commentary beyond the official government line, were the pre-arrest of people who the security forces though COULD be dangerous. Over 20 people were ‘pre-emptively’ arrested. SAY WHAT!!!! The vast majority of these were not charges and their only crime was to be involved in social (but not violent) activist groups. To repeat Amnesty international – brutal intimidation techniques. I know acquaintances of mine went ‘underground’ during the Olympics because of vocal communist they were afraid they would be ‘gitmo-ed’ or just plain arrested. Even if you are released hours or days later, the process can be traumatic and disturbing; especially if your under the preconception we live in ‘free society’. 

Let get back to the iconic image of the Toronto G20, the burning police car. The police car and the apparent (well apparent to anyone watching on TV) willingness of the security forces to allow THESE acts of violence to happen leads us to conspiracy theory of sorts. Now being a proponent of this idea, I have to preface this talk by stating that just because something is labeled a conspiracy does not automatically make it false. Those watching the video were left asking 1) why was the police car left on the street? 2) Why, once it was a fire was started, did not the security forces (which in video could be seen in great numbers of security forces less the 50 metres away) at least ATTEMPT to secure the area 3) where were the fire department? 4) Why were there not police or security forces ATTEMPTING to keep people away from the bringing car that was potential danger to civilians? And 5) What were they afraid of, CTV and CBC both were next to the car and the vast majority of people were ‘gawkers’ trying to grab photos/vids with their cellphones. The most I ever saw were 2 to 5 ‘actively’ violent individuals (and they looked more homeless than Black Bloc).

Okay, lets pull back a bit. I am NOT saying Harper is creating a massive security force that will be Jack-booting their way down main street Canada tomorrow…probably not net year either… What I am saying is that what we saw in Toronto was the effective use of scare tactics; intimidation and misdirection that show scare us all[4]. There is where a great number of peaceful protest, activist trying to get the word out that there are things happening or not happening at the G20[5] that should be of concern to us all.

[1] I could not find firm numbers for other events, but what I could find supports this point but be sceptical.

[2] Although the CBC reported estimates of 10,000. From the video is saw, the lower number I used seems more accurate.

[3] There is not a lot of ‘forests’ around Toronto but the ultimate destination of this traveler was farther afield. It is noteworthy that he was never actual charged with any crime. Also if his intent was nefarious, it seems incompetent to act as he did…unless his intent was innocent.



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What went wrong at the G20 meeting in Toronto? Pt1

Posted by Don McLenaghen on July 19, 2010

Part 1, show me the money!

There were several issues that arose out the recent meeting of global leaders in southern Ontario at the end of June. The first issue is cost. The G20/G8 cost the Canadian people over a billion dollars for a 3 day event. This expense included a 10 km fenced enclosure costing almost 10 million, new crowd control equipment including the dreaded ‘sound cannon’ and of course security enforcement personal..

The security cost of last G20 was held in spooked Pittsburgh cost only 13 million, London’s in 2009 was priced (for the whole event) at 20 million. Now, the G8s have a record of costing more (although even by that standard we spent more than twice as much as the next most expensive G8, L’Aquila, which was a masked way for the Italian government to rebuild the town after a devastating earthquake) but in this case the vast amount of money was spent on the G20 in Toronto.

Let’s compare this to other past events. Security for the Olympics here in Vancouver cost around 1 billion, depending on your source. This was a 26 day event with some history of terrorist violence in the past (The Munich and Atlanta Games). At the opening ceremonies 10 heads of state as well as over 41 other high officials from over all over the world. This of course did not include the thousands of performers or the crowd of tens of thousands watching in person or the billion or so watching on TV; a very high profile event we paid over 40 million a day for security. If one was worried about ‘sending a message’ the Olympics (as those who tried to justify the expense of the games constantly reiterated) would be a prime target.

The G20/G8 events, although also ‘famous’ for their protest, these are low level (ie few people), low impact (minor property damage) and attack mainly social justice activist. However, they do get a disproportionate amount of press in the first instance because the activist are trying to point out social inequalities, access inequalities and other justice issues and for the second instance because the participants (especially those representing private interest) do not want the ‘masses’ to know what is going on (largely at private behind-closed-door events) and those who worry about a repeat of MAI.

MAI was the Multilateral Agreement on Investment (MAI) which was derailed by popular protest in the late 1990s. This victory of the ‘people’ followed by the resistance to ‘restart’ MAI at the World Trade Organization meeting in Seattle in 1999. Seattle was a break water point for both the activist and the ‘establishment’. When protesters came out again in Quebec in 2000 and Genoa, the ‘security’ forces were prepared to be more ‘aggressive’. Since then there have been a couple of deaths – all of them protesters.

The change the security forces have taken is the adoption of the ‘Miami’ model. This was an event where negotiations for the Free Trade of the Americas Agreement occurred in Miami, Florida. This model, seemed a win-win (-lose) for the security forces, the politicians/lobbies (and the activist/masses). There are several aspects of the psychology of the Miami model I will bring up in the next post, but the important aspect for now is the money. One reason the ‘local forces’ are willing to be so ‘active’ is large amounts of money are infused in the local security apparatus and forces. Often this is seen as new equipment but in Toronto’s case the vast amount of money was spent ‘paying’ for the personal (with its corresponding overtones of ‘mercenary’). One area of visible equipment increase was in the form of riot gear but enough to say a lot of money was spent, a lot of people detained, a lot of press on the ‘thugs’ and very very very little was broadcast of substance in spite of the fact the VAST majority of the activity of activist were peaceful, important and should have been heard; instead we got a burning car.

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