I Smell More HarperCon BS

So ... Athanasios Hadjis has argued that S. 13 of the Canadian Human Rights Act is unconstitutional.

Interesting ruling that - especially since it flies in the face of Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 from the Supreme Court of Canada in 1990, which reads:

Held (La Forest, Sopinka and McLachlin JJ. dissenting in part): The appeal should be dismissed. Section 13(1) of the Canadian Human Rights Act is constitutional.



Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: The activity described by s. 13(1) of the Act is protected by s. 2(b) of the Charter. Where an activity conveys or attempts to convey a meaning, through a non-violent form of expression, it has expressive content and thus falls within the scope of the word "expression" as found in the guarantee. The type of meaning conveyed is irrelevant. Section 2(b) protects all content of expression. In enacting s. 13(1), Parliament sought to restrict expression by singling out for censure particular conveyances of meaning. Section 13(1), therefore, represents an infringement of s. 2(b).



Hate propaganda messages against identifiable groups, such as the ones dealt with by s. 13(1), do not fall within the ambit of a possible s. 2(b) exception concerning expression manifested in a violent form. This exception speaks only of physical forms of violence, and extends neither to analogous types of expression nor to mere threats of violence.



Section 13(1) of the Act, which is sufficiently precise to constitute a limit prescribed by law under s. 1 of the Charter, constitutes a reasonable limit upon freedom of expression. First, Parliament's objective of promoting equal opportunity unhindered by discriminatory practices, and thus of preventing the harm caused by hate propaganda, is of sufficient importance to warrant overriding a constitutional freedom. Hate propaganda presents a serious threat to society. It undermines the dignity and self‑worth of target group members and, more generally, contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open‑mindedness that must flourish in a multicultural society which is committed to the idea of equality. The international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism enshrined in ss. 15 and 27 of the Charter magnify the weightiness of Parliament's objective in enacting s. 13(1).

There can be only one motive to this decision - and that is to provoke another costly round of appeals through the court system with the objective of overturning Taylor.

In short, the Con$ are busy pandering to their base of extremists. Yes, I suspect strongly that there has been political interference in the CHRC process which is supposed to be held at arm's length from the government - Harper has shown repeatedly that he has no respect for anything that might constrain his powers.

A Little Refresher ...

[Update 19:30]
It's even worse than I feared according a Dominion Institute commissioned survey:

The institute drew up four basic questions:

* Who is the head of state?
* How can Canada's system of government best be described?
* Do Canadians elect the prime minister directly?
* Can the Governor General nix a prime minister's request for a new election?

The really sad part is how few people actually got the answers right:

About 75 per cent of Canadians believe incorrectly the prime minister or the Governor General is head of state, ...
Given a choice how best to describe the system of government, 25 per cent of those surveyed decided on a "co-operative assembly" while 17 per cent opted for a "representative republic."

Canada is neither. Only 59 per cent picked correctly — constitutional monarchy.

In a similar vein, 51 per cent wrongly agreed that Canadians elect the prime minister directly.

...
A full 90 per cent responded correctly that the Governor General does have the power, which Jean may yet be called on to wield if the opposition coalition does defeat the government with a vote in the Commons.

If a majority had responded anything other than in the affirmative about the Governor General's powers given what's been in the news in the last few weeks, it would have made the results that much more disappointing.

What's even more vile than those results is the way that the HarperCon$ are preying on the ignorance of so many.
[/Update]

Since Canada's government seems intent on lying to the public about the concept of a government formed by a coalition, I thought it worth a few minutes to dismantle the outright lies that are being foisted upon us from the PMO.

One of the talking points that has been thrown out there is that an opposition coalition is somehow analogous to a coup d'état.

This is blatantly false. I'll refer briefly to the Wikipedia article on the subject for a practical working definition:

a coup, is the sudden unconstitutional overthrow of a government by a part — usually small — of the state establishment — usually the military — to replace the branch of the stricken government, either with another civil government or with a military government.

The first point here is that a coup d'état is unconstitutional. So, let us consider the constitutional realities that are at play right now in Canada for a moment.

Wikipedia provides a reasonable (but incomplete) summary of the Governor General's legal powers. If one reviews Section III of the Constitution Act of 1867, it clearly vests the executive power of government in the crown, represented in Canada by the Governor General:

9. The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.

10. The Provisions of this Act referring to the Governor General extend and apply to the Governor General for the Time being of Canada, or other the Chief Executive Officer or Administrator for the Time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated.

This is the first part of the discussion that is important. The appointment and swearing in of the government in the House of Commons is performed by the Governor General on behalf of the crown. In a situation such as a minority parliament, the Governor General is presented with the potential for several different options - the party with the plurality of seats will likely be asked to form the government first, but as the King-Byng Affair of 1926 demonstrated, the Governor General may ask the leaders of other parties to form the government.

As far as I know, the coalition has taken no steps which undermine or violate the authority of the Governor General in this matter.

Now, let us move along to how the coalition has proceeded. Prior to Prime Minister Harper requesting, and being granted, a prorogation of parliament, there was to be a confidence vote in the House of Commons on Dec 12, 2008 on the motions related to the Fiscal Update that the Harper-led government had tabled in the House of Commons in late November.

In a Westminster parliament, a government that loses the confidence of the House of Commons collapses. The concept of a confidence motion is a recognized and accepted construct through which the sitting government will be tested. Although a government's collapse usually triggers a general election, it is not necessarily the case that happen. If the Governor General can be persuaded that one or more of the opposition parties can form a stable government for some period of time, the Governor General has the right to ask the opposition to form a government without triggering an election.

So, since the coalition was proceeding through a legitimate path to deprive the Harper government of the confidence of the House of Commons, it is hard to claim that a coalition is in any respect a 'coup d'état' in any meaningful way.

The second point that needs to be considered here is that in a Westminster Parliament, we elect our representatives, and we do not directly elect the Prime Minister, instead the Queen requests the person most likely to command the support of a majority in the House, normally the leader of the largest party in the House of Commons, to form a government. In short, Stephen Harper sits in the PMO at "Her Majesty's Pleasure", and by a series of quirks of convention belonging to a system that has evolved over nearly 1,000 years.


Since the Harper Conservatives were so willing to form a coalition to replace Paul Martin's government in 2004, it is mind boggling that today we find the same group of people complaining that a coalition would somehow be an illegitimate government.

In October of 2008, Stephen Harper asked Canadians to decide on a parliament. We duly elected our representatives with the full expectation that they would find a way to make the resulting House of Commons work. If that takes the form of creating a coalition government, that is an eminently valid expression of democracy in Canada and in fact would represent a government that is doing what most Canadians would want - a degree of cooperation among the leaders in the House of Commons.

I suspect that Harper is in fact fomenting a crisis for one of two reasons - he either wants "another kick at the can" in the electoral forum to secure a majority, or he is trying to create a crisis big enough to justify re-opening the constitution. In the latter case, I fear greatly what he would do, for he has shown himself repeatedly to be autocratic rather than democratic.

The Venting of Hot Air

I see the Con$ are busy trying to play to Jack Layton's tune on abolishing the Senate.

I would suggest strongly that Mssrs Layton and Harper review this section of the Constitution before they go off on their next little tirade about senate reform or abolition thereof.

In particular, I would draw their attention to the following sections:

38 (1):

(1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by

(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

and

42 (1):

(1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):

(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;
(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
(d) subject to paragraph 41(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories; and
(f) notwithstanding any other law or practice, the establishment of new provinces.

If you thought the arguments over Meech Lake or Charlottetown were nasty, I suspect it would be nothing compared to the debates that would rage over restructuring parliament.

Harper, and Layton, dream of making their mark in history - I would suggest that they both start by knocking off the rhetoric and taking the time to start understanding this nation's Constitution. Even if they were to make a motion to abolish the Senate, that is only one step in a long process - which, I suspect, only a handful of provincial legislatures would agree to readily.

I'm not saying that changing the senate is necessarily a bad thing, but it has to be crafted carefully, and with a great deal of deliberation. Simple abolition would place Canada in the unique place of being the only large democracy without an upper house that can act in counterpoint to the often fractious House of Commons. That would not be good for Canada in the long run.

Conservatives: Choosing Ideology over Law

It would be something of an understatement to say that George Bush's Supreme Court appointments have been controversial. The argument has been made repeatedly that Bush is trying to stack the SCotUS with right-wing ideologues sympathetic to the neoCon view that courts should be extremely limited in what they do.

Someone took some time to review recent SCotUS rulings, and it's not a pretty picture - especially for a country that supposedly has a "rule of law":

In a weeklong flurry of eye-popping judicial activism and ideological triumphalism, the court shredded some basic legal doctrines and moral principles that have guided this nation’s conscience for more than a century. Nothing could have done more than last week’s rulings to focus our collective attention on the meaning of democracy and justice.

That's from the opening paragraph. It gets worse, much worse:

Of all these decisions, the most appalling was the last major ruling of the session, Parents v. Seattle, outlawing public-school integration plans in Seattle and in Louisville, Ky. By a narrow 5-4 majority, the court all but overturned Brown v. Board of Education, the landmark 1954 school desegregation ruling that was arguably one of the moral high points of American public life in the 20th century. In his decision, Roberts blithely claimed he was actually upholding Brown, whose purpose, he wrote, was to achieve a “colorblind” society rather than to advance racial justice, as most of us supposed.

By his logic, government is barred from doing anything that acknowledges race — even if it is intended, as in the current case, to advance racial justice. Kennedy, in his separate concurrence, allowed that there might be a legitimate program somewhere to advance racial justice, but he left Americans guessing about just how to find it and, in effect, strongly discouraged from trying.

The reading of the decision left the court’s so-called liberal wing — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — literally slack-jawed in rage and shame. The normally unflappable Breyer, who authored the liberal dissent, spent 20 minutes at the bench passionately denouncing the court’s ruling and, by implication, its overall direction. “It is not often in the law,” Breyer declared, “that so few have so quickly changed so much.”

If you step back from this a moment, you quickly realize that in the minds of neoCons, anybody who asks for their rights to be protected and recognized in law is asking for "special privilege". Of course, most of the neoCon crowd is wealthy, privileged and often white (usually at least 2 of the three), and would never have experienced significant discrimination aimed at them in their lives.

It's bad enough in the States after ~7 years of BushCo damage, but let's not be smug and naive about Canada. This country's CONS have long complained about "activist courts", and more recently Harper has all but admitted to trying to stack Canada's judiciary with ideologues sympathetic to his perspective.

Remember, this is the same PM who has directed the bureaucracy to implement an arguably illegal no-fly list, and has spent huge amounts of money protecting Rob Anders - by bending and breaking his own party's rules. Just how much respect does this man have for law, rights and your freedoms? (not much)

Stephen Harper - Can You Read?

Stephen Harper is claiming that a private member's bill passed by the house is constitutionally invalid because Harper thinks it will cost money to implement.

He's actually trying to play semantics with the rules of the House of Commons that restrict bills that explicitly initiate government expenditures:

Speaking shortly after the bill received royal assent, Harper suggested the bill is invalid because it is not a money bill, yet would involve large expenditures.

"There are strict constitutional limits which decide what you can do with such a bill," he said. "It could impose enormous costs on the Canadian government or on the economy. It's impossible constitutionally.

Funny, coming from a government that has implemented an unconstitutional no-fly list without even putting a legislative framework around it. A no fly list which will cost many millions of dollars and gain us little or nothing in terms of real public safety.

Any law passed by the government bears a cost of enforcement. Bill C-288 obliges the government to put forth a plan to meet our legal obligations under the Kyoto protocol that we ratified in the late 1990s. It does not initiate any specific expenditures, but rather obliges the government to fulfil obligations that Harper has chosen to ignore since day one.

Oddly, I don't think Harper has a clue what our Constitution really says. The issue he is raising is a matter of parliamentary procedure:

In developing their legislative proposals, Members should bear in mind that bills containing specific provisions or clauses involving the expenditure of public funds will require a Royal Recommendation from the Government before they can be passed by the House.

Please note that bill C-288 makes no specific comment at all about initiating expenditures of any sort, but rather is a legal lever to insist that the Cons actually comply with the will of Parliament as expressed in prior legislation. No more, no less.

Of course, Harper, along with the rest of the Cons, is so clearly ignorant of our Constitution and what it says about Legislative Powers in the Federal Government, that he waves the "unconstitutional flag" about as if he knows something, and only demonstrates his ignorance and disrespect for Canada in doing so.

- Would you vote for a party whose name starts with "Con"?
(Coming soon - the latest CON$ervative "fund raising" tactics - on Canadian Taxpayer dollars)

No Fly Lists and The Right To Speak Out

The Cons screamed blue murder when Bill C-250 was passed, claiming that it created a class of "thought crime".

But, let us look for a minute at Canada's recently implemented "no fly list", and the potential abuses it is subject to for a moment.

First, the no-fly list has been implemented as a matter of policy, not law. In other words, it exists by fiat of Conservative policy being implemented by bureaucrats, not as a result of any kind of debate in the legislative houses.

Perhaps even more disturbing is the fact that both the list itself, as well as the process by which a name is added to it, is a secret process. The citizens of Canada have absolutely no visibility into the processes involved, and no right whatsoever to appeal the determinations of those processes.

Sit back and consider this for a moment. We have no idea what the rules are upon which this list is being maintained, and people whose names are put on this list have no ability whatsoever to appeal the punishment being levied as a result.

This means that if the politicians in power decide they don't like you, it becomes quite easy to make your life very awkward indeed. Write a letter to your MP, and he or she decides that they dislike you, and presto, you are on the list at their whim, with no traceability, no accountability and no appeal.

You may be looking at this and saying to yourself "nah, your reaching". But, I ask you to consider the legislative agenda of the Cons. It has been blatantly hostile to civil liberties and rights - breaching fundamentals such as the presumption of innocence; Harper and his bandits have lied to Canadians on just about everything from accountability to cabinet appointments and Afghanistan. What assurance do I have that this list will not be used for political reasons?

The long and short of this is that unlike Bill C-250 that put something out in the open, where it can be seen and contested, the Harper Cons have created a 'frankenpolicy' which can be used by the government to arbitrarily curtail individual rights and freedoms, while the politicos hide behind the veil that bureaucracy creates in the first place.

In doing so, the Cons have sent out an implicit, thuggish message: "Don't dissent, or we'll curtail your freedom to travel". (and, as a citizen who has tried to deal with ReformACon MPs many times in the past, it is quite clear that they don't take contrary positions "well".

So...are the Cons protecting us, or creating a tool of oppression? What is more open and accountable - a law on the books that can be challenged in court if abused, or a secret process created at the whim of Harper's Cons?

The Zombie Bill

[Update 9/3/07]
It seems that Burke has changed his mind - I wonder if he started to actually think about the laws of the land a bit further.
[/Update]
I really must be more careful about mentioning certain people in my blog - it seems as if within days of the somewhat snarky mention of Ted Morton, we find out that he's being channeled by other legislators - this time in New Brunswick.

It seems that Conservative MLA David Alward is proposing legislation that would "grant rights to commissioners who are opposed to same-sex "marriage" on religious grounds. ".

New Brunswick Attorney General T.J. Burke spoke out in support of the amendment, saying he saw no conflicts with the Charter of Rights an Freedoms regarding same-sex equality issues.

"We're not going to oppose the bill. The bill provides preference in choice for individuals who wish to perform same-sex marriages and who wish to decline. There's nothing really that's going to change with respect to the amendment," Burke said.

Ummm...let me put this in one word - BullSh!t.

As soon as you put a bill like this into law, you create a situation where someone acting as an agent of the secular government (and thus, the government itself) is able to discriminate against someone on religious grounds. Although less sweeping than Ted Morton's Bill 208, this amendment to the marriage law in New Brunswick still ultimately enacts legalized discrimination by the state.

Now, last I checked, Section 15(1) of the Charter of Rights and Freedoms reads:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Last I checked, there was a considerable body of case law established since 1983 that severely curtails the government's right to act in a discriminatory fashion. Remember that Marriage Commissioners are performing Civil Marriages, not religious marriages, and thus are acting not as agents of a church, but as agents of the State. I don't know how much law background Attorney General Burke has, but I suspect his understanding of the interpretation of the Charter in the courts is somewhat weak. (Or either that, like Ralph Klein, the man is fundamentally hostile to the equal treatment of GLBT citizens under the law)

Security Certificates and Law

Now that Canada's Supreme Court has examined the whole "Security Certificate" mechanism and found that it is in violation of basic principles of civil rights, such as due process, it's time to take apart one of the most abusive pieces of law on Canada's books.

I've always argued that in a country like Canada, we have a clear system of due process and law which should take precedence over the fear-mongering paranoia of politicians whose idea of power is nearly authoritarian in nature. A free and democratic society should not need tools as arbitrary as security certificates. If someone has been accused of the kind of criminal activity that warrants detention, then bloody well charge and prosecute them in the open courts. Secretive "you can't see the evidence" processes are abusive, and subject to political manipulation in ways that are simply not acceptable in a civil society.

For those willing to delve into the arcane language of law, the full ruling is already posted here, and it contains some intriguing insights.

From the Chief Justice's commentary (emphasis added):

2 In this case, we are confronted with a statute, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), that attempts to resolve this tension in the immigration context by allowing the Minister of Citizenship and Immigration (the “Minister”), and the Minister of Public Safety and Emergency Preparedness (collectively “the ministers”) to issue a certificate of inadmissibility leading to the detention of a permanent resident or foreign national deemed to be a threat to national security. The certificate and the detention are both subject to review by a judge, in a process that may deprive the person named in the certificate of some or all of the information on the basis of which the certificate was issued or the detention ordered. The question is whether the solution that Parliament has enacted conforms to the Constitution, and in particular the guarantees in the Canadian Charter of Rights and Freedoms that protect against unjustifiable intrusions on liberty, equality and the freedom from arbitrary detention and from cruel and unusual treatment.



3 I conclude that the IRPA unjustifiably violates s. 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person’s interests. I also conclude that some of the time limits in the provisions for continuing detention of a foreign national violate ss. 9 and 10(c) because they are arbitrary. I find that s. 12 has not been shown to be violated since a meaningful detention review process offers relief against the possibility of indefinite detention. Finally, I find that there is no breach of the s. 15 equality right.

This more or less encompasses the fundamental problems that I have expressed (repeatedly) around the subject of detaining people on arbitrary mechanisms like this. I still fundamentally disagree with the whole notion of a secretive process, as it seems to me that it creates serious problems with the transparency and accountability that is essential in the government of an open society.