Monday, July 21, 2014

Think That Mass Spying Doesn't Affect You?

Go Read.

It is not just the spying, but the records and how they are shared which is the real problem.

The Harper Government wants people to be afraid.  If they screw up a few people's lives in the process, that's just so much the better for their agenda.  

Sunday, July 20, 2014

When Is A Policy A Non-Policy?

At first glance, this almost seems like a reasonable document.  There are lots of "The schools shall do this" and "shall provide that" statements, and it almost looks as though they made reasonably well informed effort.

Almost?  Why do I say "almost"?  Like most documents, you have to read it through a couple of times before you see the gotchas in it.

Harper Tries To Foment A Crisis

Harper has taken a surprising number of losing cases to the Supreme Court of Canada.  Most, if not all, were obviously places where the government's position is one that is in direct contradiction with the Constitution of Canada.  Even a relative neophyte in Constitutional law in Canada can spot that, whether it is Harper's desire to "reform" the Senate or the government's daft position on prostitution.  

Now we have the CPC caucus starting to trot out the "undemocratic" talking points.
Dan Albas, the MP for Okanagan-Coquihalla, says that while he respects the courts he also believes an increasing number of groups are using litigation to advance policies the government will not put forward. 
"Often the Plan B is to do an end-run around our democratic process and turn to the courts where it seems some judges are quite happy to engage. This can result in decisions contrary to what have been decided in our democratic process," Albas told CBC Radio's The House.
Let's see ... the government is unwilling to engage with the issues that various groups are raising (presumably on ideological grounds, given the pattern of the Harper Government), so they take it to the courts.

First of all, that means that these groups are raising issues which are not just minor problems, but in fact have a legal basis where the current policy or laws are in fact inconsistent with the fundamental principles of Canada's legal system and laws.

Second, if the government is unwilling to engage on these issues, they leave the public with little other option but to force the matter by pursuing justice in the courts.
"Basically what you're having is a judge can overturn and then cost the taxpayer a lot of money without any accountability or representation on their behalf," Albas said. 
The British Columbia MP said it's important to ask whether there is the right balance between the executive branch and the judicial branch to make sure every Canadian is well-represented. 
"If citizens through the democratic process are unable to make policy decisions because of unelected judges and well-financed interest groups, I submit we collectively lose," Albas said.
Well, we already know that Harper views the Constitution of this country as an impediment to his goals.  It stands to reason that he is also going to see the judiciary and any other branch of government that would dare challenge his wisdom as a bad thing too.

The Conservatives are basically taking the stance that as the governing party, they have a right to decide what issues they are going to address and when.  This is true ... to a point.  However, the courts can declare a given law or policy as illegal / unconstitutional on a variety of grounds when a case is put before them.

This is not "undemocratic" in the least.  In fact it is one of the cornerstones of a healthy democracy.  There are checks and balances in place which curb the power of the "democratic majority" (which I will point out in the last election was effectively just over 20% of the eligible voters) to run amok.

The point of an independent judiciary whose sole job it is to study and interpret the law of Canada is to ensure that the legislative and executive branches of our government cannot arbitrarily abuse the rights of citizens.  Make no mistake about it, what Harper proposed doing with the Senate abused your rights every bit as much as some of his laws.  By attempting to undermine the amending formula, he was effectively trying to set a precedent that the executive branch could propose and enact radical changes to the foundation of this country's laws without engaging with the provinces - thereby negating your democratic voice at not one level of government but two levels of government.

The judiciary in Canada isn't being "undemocratic" at all.  It is the Harper Government which is being undemocratic, and attempting to impose the tyranny of their followers on all Canadians without being held accountable.

Saturday, July 12, 2014

Spendaphobe? Give Us A Break

So, according to Rob and Doug Ford, Rob isn't a homophobe, he's a spendaphobe.

Rob Ford's own actions related to pride in the not so distant past (refusing to attend, trying to stop the city from flying the pride flag for example) speak quite clearly to where he stands with respect to gay rights.

However, that isn't the point of this post.  It is the ridiculous moniker of "spendaphobe" that needs to be talked about.

Typical of what we've come to expect from conservative politicians in the last decade, this is nothing more than a piece of jingoism.  It's a meaningless term designed to deflect attention away from the issue at hand.

Rob Ford spends ... often like a drunken sailor, and most of his claims of saving the City of Toronto billions of dollars are largely lies.  Further, Ford's conduct over the last year and a bit have demonstrated repeatedly that the man is a compulsive liar.  Almost every time he has been confronted with his own misconduct, he has lied to Canadians.

So, as a voter in Toronto, would you believe his latest round of denials?

Thursday, July 10, 2014

Reference Cases Are Not The Problem

Over at iPolitics, James Matkin and Clive Cocking are busy moaning about how the Supreme Court "kills innovative legislation" in the form of "reference cases".

The basic thesis of their argument is that we need to take away from the Supreme Court of Canada the ability to hear "reference cases".  A reference case is fundamentally a hypothetical case - a "what if we wrote legislation like this" test.  For most Canadians, the most recent "Reference Case" was Harper's "Senate Reform" gambit, which got smacked around for violating various aspects of the division of powers in the Constitution.

Matkin and Cocking complain that these reference cases effectively drag the Supreme Court into the political discourse where it has no business being.

I respectfully disagree with their analysis of the situation.  The problem is not reference cases at all, but rather the manner in which the current government has approached the matter.
Since 1875 the federal government has dumped an astounding 75 reference cases into the lap of the court. Many of them have involved the thorniest of political issues, such as Quebec secession or Senate reform.
Quite frankly, if in 139 years, we have put 75 cases before the Supreme Court of Canada, that's not exactly a huge amount.  Thats one every couple of years, roughly, and for the most part, those have been legitimate cases of the government's lawmakers asking very real questions about the legitimacy of a given legislative approach to a problem under this country's Constitution.

On the whole, it has been quite useful when one examines it as a tool to help lawmakers (who are seldom experienced members of the judiciary) to consider the implications of legislation they are considering, or for that matter the more subtle aspects of constitutional law (as the 1998 Quebec Secession reference addressed).  Given the speed with which the court system moves as a whole, there is much to be said in favour of a reference case being heard - not the least of which is to serve as a baseline for guidance as to how a court would look upon a particular issue in the future.  While these are definitely theoretical moments, it takes years (and millions of dollars) to litigate an issue to the Supreme Court to have it overturned on charter or constitutional grounds.   When it is something which could have been avoided by simply asking the obvious questions up front, it saves all involved an enormous amount of grief (and money).

Citing Harper's Senate reference as an example, Matkin and Cocking seem to believe that Harper should have just legislated as he wished and then have the whole mess before the Supreme Court.  One doesn't have to be a Constitutional scholar to realize that Harper's entire approach to the Senate violated multiple articles of Canada's Constitution.  Since Harper has shown repeatedly that he has no interest in writing laws which respect Canada's constitution, one could arguably say that the reference case saved Canada millions in litigating the matter.

Harper has tried to use this to claim that Senate reform is "impossible".  Of course, what Harper is really saying is that he is unwilling to engage with the provinces to make the amendments needed to achieve his vision of a reformed Senate in Canada.  Since 2006, Harper has not once met with all the provincial Premiers.
Justice Frankfurter of the U.S. Supreme Court rightly described such advisory opinions as “ghosts that slay”, particularly innovative legislation. Our Parliament has repeatedly used this legal device to dodge its duty to act on tough issues. One of the most craven examples was the federal government’s 2011 decision to let legislation creating a national securities regulator die stillborn in the face of a negative Supreme Court reference opinion – when three sections of the constitution give Parliament adequate trade and commerce powers to enact such legislation.
Oh ... it kills "innovative legislation"?  No more than writing that legislation and having it struck down as a result of subsequent litigation.  Again, the example that the authors cite is another case where Harper and his government would have to engage with the provinces directly in order to develop an acceptable model.  Harper refuses to engage with anyone outside his inner circle in the PMO, and he is incapable of developing any kind of meaningful compromise.

The problem is not reference cases, nor is it the politicization of the Supreme Court that they argue arises from such cases.  The problem is a government which has no respect for the Constitution of Canada and a Prime Minister who is unwilling to actually engage with the provinces.  Harper is the problem, not the reference cases.

Saturday, July 05, 2014

Religious Beliefs Are Not Ethics

In the wake of the recent uproar over a doctor in Calgary refusing to prescribe hormonal birth control, and the SCotUS decision in Burwell v Hobby Lobby, it seems that there is more than a little bit of a misunderstanding about the distinction between a religious belief and ethical conduct.

In today's Calgary Herald, we have lawyer and right-wing activist John Carpay spouting off on the issue of the doctor.
Apparently Prentice believes that a doctor should simply do and provide whatever the patient wants done and provided, regardless of the doctor’s education, training, experience, conscience, and professional judgment. 
This raises some interesting questions. If a doctor, based on her experience and research, believes that liberation therapy (dilating and opening blocked neck veins) is not a good option for patients suffering from multiple sclerosis, must she provide that therapy simply because the patient demands it?
Let me point out first that professional ethics and practice guidelines are seldom "black-and-white", especially in matters where we are not necessarily talking about life-and-death, and to be sure, a prescription for birth control pills is hardly in that latter category.

However, there is an enormous difference between prescribing a birth control pill (with well known and quantified effects), and an experimental therapy that up until recently had no clarity around the degree of effectiveness of the treatment.  I would expect a doctor to provide enough information that a patient could make an informed decision in either case.
What about a doctor who is convinced that anti-cholesterol pills do more harm than good? What if a doctor refuses to prescribe birth control pills because she believes, apart from any religious teaching, that they compromise women’s health? Should this physician disregard her own research, analysis and conclusions and prescribe what she considers to be a dangerous product?
Like a lot of things, the question at that point becomes "where's your evidence?".  Medicine has moved beyond the era of "doctor knows best", and has been moving towards an informed consent model for a number of years.  Blanket refusals to provide this or that treatment without explanation speak more of condescension, and fragile belief systems, not rationally arrived at conclusions.
A free and democratic society allows consumers and providers to accept or decline each other’s business, without state coercion. In a free society, the government does not force doctors, lawyers, butchers and other people to do things that they do not wish to do.
A doctor is not in the same class of occupation as a butcher.  A doctor is dealing with people's lives.  Their duties supersede "personal beliefs" much of the time.  The doctor's blanket refusal ignores the potential risks to the patient.  For example, is it ethical for her to refuse to prescribe birth control pills to a woman who has been advised by a physician to avoid becoming pregnant because of the risk to her health?  (Yes, it does happen - it happened to my own Mother)

Oh wait ... women aren't supposed to _enjoy_ sex.  It's supposed to come with some kind of punishment (aka "consequences").

To put medical services into the same arena as buying a slab of meat at the butcher is a bit of a fallacy that ignores the more subtle complexities of the picture.  It's not like we have a surplus of doctors in Alberta.  In fact, we have a serious shortage even in urban areas, and heaven help you if you live in a small town and lack a car.  Further, a doctor's chosen profession reaches beyond the "free market", and the kinds of expertise involved are such that there is no guarantee of there being an alternative available - especially in small towns.

The issue that I have with this particular situation is not with the doctor herself, but rather with the "escape hatch" clause in the ethical guidelines that are involved.  I have no problem with the idea that someone may have strong beliefs in one respect or another.  That does not give them a free pass to decide that they are going to impose a blanket refusal on everyone based on those beliefs.

If there was real evidence that she had concerns about, that would be one thing, but based on a number of bits and pieces that we have seen in the media, her objections appear to be largely moral rather than evidence based and objective.

Quite frankly, I do not go to my doctor for "moral lessons", nor do I expect that my doctor is going to demand that I live by their moral code.  I expect my doctor to be informed, and to be able participate in helping me achieve an informed decision about whatever treatment I am seeking.  Individually, this doctor has essentially issued a blanket refusal which precludes her making an informed decision about any patient's situation.

On a higher level, I am not accusing the doctor of violating the ethical guidelines of her profession.  However, I am questioning if the "conscience clause" and its application here.  It seems to me that the clause itself is overly broad and untestable.  This has the unfortunate consequence of making it difficult for people to access health care - especially gender and sexual minorities, but even women - because at the outset the doctors are able to invoke this escape hatch without any evaluation of the patient, their situation or whether reasonable alternatives exist.

While I can appreciate that there are circumstances where a doctor will find themselves in a place which is in conflict with whatever moral beliefs they may follow, I think that the escape hatch in the practice ethics needs to be tightened up considerably.  At present it is overly broad at the detriment of the patient.

How Harper Wastes Your Tax Dollars

Harper likes to style his government as a "firm, steady hand on the tiller", especially on matters of the economy.

But the man is so blinded by his hatred for our country's laws and the foundational principles of the Canadian Constitution and The Charter of Rights And Freedoms that he simply writes legislation that is based solely on his ideology.

The net result:  unjust laws that are in fact illegal under Canada's Constitution, and millions of dollars spent trying to sustain those laws before the courts of the land.
June 2014: Supreme Court upholds privacy rights
April 2014: Feds can't go it alone on Senate reform
April 2014: Judges have discretion on sentencing
March 2014: Medical marijuana users win injunction
March 2014: Early parole abolition repealed
March 2014: Marc Nadon rejected by Supreme Court
December 2013: Court strikes down prostitution laws
November 2013: No mandatory minimums for guns
September 2011: Supervised injection clinic remains open
... and those are just the cases the court has ruled on.  There is more before the court, and more challenges yet to come based on legislation that this government has rammed through.  Including the "Fair Elections Act", "The Strengthening Canadian Citizenship Act", and the "Protection of Communities and Exploited Persons Act" for starters.  

There's more, including a "cyberbullying bill" that is really just a trojan horse for widespread surveillance without warrant, and a litany of evilness that has been rammed through as part of "budget omnibus bills" which should never have been given the time of day.

Fiscal prudence?  Hah!  

This is government by ideology.  Harper views the Constitution of this country as an impediment, not as a framework.