Reserve Powers, The Notwithstanding Clause, and Unjust Laws

Since the Smith-led UCP government in Alberta saw fit to invoke The Notwithstanding Clause (S33) of The Charter of Rights and Freedoms (The Charter) to order teachers back to work (Bill 2), I have seen some discussion in various forums arguing that once S33 is invoked, there is very little anybody can do.  

I propose that this is not entirely true.  Certainly, Bill 2 imposes onerous, if not excessive, fines for any "labour action" over the next 4 years which would make most teachers hesitant to act directly, like all of us, they have families to support and generally have to pay the bills, the penalties aimed at the ATA are clearly designed to bankrupt the ATA very quickly.  

I've argued in other posts that Bill 2 is exceptionally bad legislation, and as such presents a clear danger to Canadian democracy and our legal system.  It is not the only legislation that the UCP has passed which is of dubious value, but it finally seems to have galvanized people's attention on the potential for abusing S33.  

Broadly speaking, I contend that laws which require the government to invoke S33 should be subject to much greater scrutiny, for the government's invocation of S33 is essentially an admission that the law not only curtails rights guaranteed under The Charter, but that they acknowledge that the law would not stand scrutiny with respect to The Reasonability Clause (S1).  In other words, the application of S33 must be of the most urgent nature, and for circumstances that the government could not reasonably mitigate with other statutory tools.  

How To Respond To the UKSC Ruling On Trans People

 This week, the United Kingdom Supreme Court (UKSC) issued a ruling that on the face of it invalidates transgender women’s rights under the law.  I haven’t finished reading through the entirety of the ruling (I’m also not a lawyer - so reading this stuff is often slow going for me!), and I’m sure that others will have more clear headed things to say about the ruling itself.

However, my objective here isn’t to perform a deep dive into the ruling.  This is more about how a ruling like this can be turned back on itself.  The objective of these cases is clearly to shove transgender women (in particular) out of public life.  To do so, proponents of these suits often dive behind what they think of as “scientific wording” - in this case, the phrase “biological woman” comes to the fore very quickly. 

In a sense, such simplistic phrases are perfect for weaponizing, and they can be weaponized very effectively by transgender people and their allies.  Even the UKSC ruling, while it adopts this language doesn’t attempt to provide any kind of meaningful definition of what this means.  

A trivial version of taking it apart is a bit like the snarky quip about “organic vegetables”:  It’s clearly a vegetable, and by definition it is organic in that no human being assembled it.  Similarly, a transgender woman might well say “I’m biological, and I’m a woman - I don’t see a problem here”.  It’s a bit facetious to do so, but given the approach being taken by the anti-transgender panic brigade, not entirely wrong. 

The other end of it is when cases get before the courts, (and they inevitably will), we start off with bringing in biologists and have them give lessons to the court on the complexity of human biology when it comes down to reproductive biology and sex development.  It’s strange - oh so strange - and efforts to treat it as some kind of rigid dichotomy are hugely problematic.  

Pretty much every time you hear “biological woman”, you know you’re talking to someone who has absolutely no idea what they’re saying - biology isn’t simple, and it’s beyond laughable to try and reduce any human being to “the bits between their legs”.  Every time the antis bring up transgender people as some kind of abhorrent problem, slap them down with all of the exceptions that already exist even if transgender people didn’t.  

The logic they’re using is so rigid it’s brittle.  Twist it on them until it breaks at every turn. 

Will it be easy?  Nope.  But it needs to be done.  Every single argument the “antis” are making to justify shoving transgender women out of public life is based on falsehoods.  Their suppositions about transgender people are rigid and false, and that makes them vulnerable to attack - even when they think they’re backed up by the highest courts in the land. 

Senator Plett Reprises His Complaints on Bill C-16

Whether we are talking about Bill C-16, Bill C-279 or Bill C-389, there has been one consistent thing in the Senate - the voice of Senator Plett droning on about how terrible this legislation is.  This week, second reading of Bill C-16 happened in the Senate, and sure enough Senator Plett had to stick his oar into the waters (audio here ... if you can stomach it).

I'm not going to dwell overly much on the whining note that Senator Plett starts off with:

Speaking Of Hypocrisy

So, the Catholic Church thinks it has something relevant to say about physician assisted death?

After reading through the Bishops' letter to Alberta's Premier Notley, it's an amazing piece of hypocritical nonsense.

The Catholic Church is committed to protecting and caring for the most vulnerable people in our society; this includes, of course, those who suffer and dying Albertans. Catholic healthcare in Canada, and in our province, has given witness to this from our earliest history.

Except for those Albertans who happen to be LGBT, apparently.  

We want to be clear that, from a Catholic perspective, the intentional, willful act of killing oneself or another human being is morally wrong. Therefore, no Catholic - including elected officials and healthcare professionals - may advocate for, or participate in any way, whether by act or omission, in the intentional killing of another human being either by assisted suicide or euthanasia.

Once again, we see the Church attempting to dictate the actions of its membership through coercion.  I saw Bishop Henry use exactly this tactic during the gay marriage arguments in the 2000s, where he threatened to excommunicate any Catholic politician who voted for gay marriage.  It wasn't persuasive or relevant then, it isn't now.  

First, if laws and regulations governing the legalized acceptance of assisted suicide and/or euthanasia are to be adopted, then we must accept that they will, in principle and practice, affect all Albertans. Therefore, we ask that your government undertake a consultation process open to any and all who wish to speak to the issue.

Well, since the laws involved are predominantly Federal jurisdiction, I don't see where Alberta's government has much to say about the matter.  Outside of Quebec, no province seems to have significant plans on this matter, and are waiting for June when the Federal Government has to have passed new legislation.

Second, we are gravely concerned that the legalization of assisted suicide and/or euthanasia will place certain members of our common home at serious risk. In jurisdictions that have already adopted laws permitting euthanasia and assisted suicide, what are purported to be “safeguards” against abuse of the law have proven in practice to be no safeguards at all. The measure of a just and ethical society is the extent to which it cares for - and protects - its most vulnerable members.

Really?  What examples would you cite?  Oh, I know, you'd probably dredge up the idiotic crap that LieSite has been spouting ever since a couple of countries in Europe changed their laws.  Besides being largely hysterical reporting, LieSite has an extreme agenda to start with.

However, then the Bishops delve into the bag of "pro-life" lies on the subject:

These are our mothers and our fathers; they built our homes and our province. They are not a burden, and they must not be led to feel that way through our individual and collective indifference.

Yeah.  Sure.  People are not going to ask the doctor to kill their parents off.  However, these Bishops might want to spend some time in a palliative care ward filled with people dying slow, agonizing deaths at the hands of disease before they pull such emotional arguments out of their cassocks.  (I'll come back to this in a moment)

Even today, many of these people often experience unjust discrimination and the sting of stigma from their family, friends, colleagues and society. In other jurisdictions, this group has in particular been disproportionately represented in cases of assisted suicide and euthanasia.

Coming from a Church which denies the validity of transgender identities, and calls homosexuality "a sin", this position is almost laughable.  I wonder if it has occurred to them just how much their teachings contribute to an attempted suicide rate among transgender people that runs upwards of 40%?

They save the money shot for the very end, and delve into the messy pot of issues called "Conscience Rights":

Third, other provincial jurisdictions in Canada have proposed regulations that undermine the conscience rights of physicians and other healthcare workers. This must not be allowed to happen here. Physicians, other medical professionals, and our institutions have to be allowed the freedom that is theirs by right to exercise their conscience, not only to accord with our Charter of Rights and Freedoms, but also as a matter of good medical practice.

Conscience rights is nothing more than the latest pro-life gambit to create a hierarchy of rights that places an individual's religious conscience at the top of the heap.  

Let me be clear.  Assisted death is a very prickly, emotional subject.  Yes, there are religious and conscience issues involved.  Lots of religions teach a particular ethic about life, and even without that stricture in someone's life, many would be rightly uncomfortable with such decisions.

However, it is far too simplistic to simply say "it's a sin, therefore it should be banned".  One only has to spend time in and around palliative care wards watching people in their last days and weeks to know that exiting this world is not always a peaceful, quiet experience.  Terminal illness can be painful and brutal, robbing people of autonomy, dignity and peace.  It's a terrifying, painful experience for some, and one that is not always remediated well by painkillers.

This is a matter of patient rights to self-determination and caregiver ethics coming into some degree of conflict.  Most ethics codes reflect the right of the patient to informed consent, and to refuse treatment.  We have to remember that the person at the center of this discussion is the patient, not the caregiver and definitely not the caregiver's church.  Even the CMA's statement on this subject is fairly clear - a doctor does not have to participate in the actual act, but they are not allowed to be an obstacle to it either.

Where the religious notion of "conscience rights" becomes problematic is that they have begun to extend it to include being "complicit in the deed", usually as a means to try and sidestep the duty to refer to a caregiver who is willing and capable.  We've seen this played with the abortion game, and I have no doubt that's what the Bishops would advocate here as well.  This is where we tip the scales and pass from supporting the individual's conscience rights and it becomes a matter of imposing one's conscience objections on the patient.  Considering the patient's state and vulnerability, this is not only problematic, it is arguably exploitative as it places the patient in a jeopardy situation where they then would have to find the means to access a willing caregiver.  (Which, if you are hospitalized or bedridden, can be damned difficult)

Alberta's Bishops would do us all a favour if they took a more nuanced approach to matters rather than simply trying to railroad the rest of the province with centuries old dogma.  

The Knuckle Dragging Judge

Normally, I find most judges are fairly well reasoned in their rulings, even if I disagree with them. Then there's Justice Dewar's comments in a recent sexual assault case where he blamed the victim:

Queen's Bench Justice Robert Dewar called Rhodes a "clumsy Don Juan" who may have misunderstood what the victim wanted when he forced intercourse along a darkened highway outside Thompson, Man., in 2006.

Rhodes and a friend met the 26-year-old woman and her girlfriend earlier that night outside of a bar under what the judge called "inviting circumstances." Dewar specifically noted the women were wearing tube tops with no bra, high heels and plenty of makeup.

I can't believe the judge was daft enough to make this ruling. Once again, we find ourselves being dragged back to the stone ages by people who seem to think that men can't possibly manage their sexual responses if the woman is "dressed provocatively" (whatever the hell that means, given the plethora of sexual turn-ons out there).

However, others have already pointed out the outrageous nature of the judge's comments, and the remarks (and presumably the ruling itself) are under review.

However, there's another dimension to this whole smelly mess that I'd like to bring to your attention.

Justice Dewar is one of Harper's patronage appointees: for donating to CPoC in 2008.

Hmmm...so, let's see if I've got this straight:

A judge who was appointed to the bench by Stephen Harper's government just made a ruling that revived the "blame the victim" defense for rapists (a defense which has been thrown out of court more times than I can count in the last thirty years).

I'd say this is pretty good evidence that the HarperCon$ would dearly love to drag Canada further back into the stone age. After their blatant attack on women and minority issues in 2006, one might just imagine that there's more going on than we are seeing (and the Bev Oda affair is just one more example of this government's inherent dishonesty with the public)

Conservatives: Policy By Slogan Rather Than Wisdom

I see that Peter van Loan doesn't think much of today's report criticizing a quiet assault on Canadians by the Conservatives:

“The professor has a different philosophy than us,” Mr. Van Loan told CBC Newsworld. “We think the protection of society has to come first.”

Sure Peter. Throwing more people in prison makes society safer. That's been a classic conservative fantasy for years - and one that the United States has tried to live:

As Don Davies, the NDP justice critic who joined the news conference, observed: “If getting tough on prisons — locking people up longer and more harshly — resulted in a safer society, then United States would be safest country probably on earth.”

Financially strapped American state governments are now desperately seeking ways to reduce their prison populations, including rescinding exactly the kinds of tougher sentencing measures the Conservatives are pursuing.

Conservative Fantasy: Throw criminals in jail, that'll teach 'em.

Reality: Not only does it not work, we can't afford to do it.

I'll leave the last words to the reports authors:

Mr. Jackson and Mr. Stewart contend there is no evidence to support the Conservative approach. They say the little data cited in the 2007 Tory road map was “completely distorted,” while great bodies of evidence were completely ignored.

In Mr. Jackson's words, the road map shows a “complete ignorance of history, of law and of evidence.”

Understanding Stonewall

Forty years ago, the gay rights movement was ignited by the Stonewall Riots.

While seen by many as the first steps in breaking down some of the social, economic and other barriers thrown up by the state to make life harder for GLBT people, there are those who choose to understand the riots purely as social unrest and unnecessary violence.

I choose to neither condemn or approve of precisely what unfolded on June 28, 1969. It is a matter of historical fact that the riots happened, and that they were violent.

However, it is not so difficult to understand the reaction to the Stonewall Inn raid when one begins to examine the social, legal and political environment which the GLBT community in the United States found itself facing.

Consider the following: (via Wikipedia)

Spurred by the national emphasis on anti-communism, Senator Joseph McCarthy conducted hearings discovering communists in the U.S. government, the U.S. Army, and other government-funded agencies and institutions, leading to a national paranoia. Anarchists, communists, and other people deemed un-American and subversive were considered security risks. Homosexuals were included in this list by the U.S. State Department in 1950, on the theory that they were prone to blackmail. Under Secretary of State James E. Webb noted in a report, "It is generally believed that those who engage in overt acts of perversion lack the emotional stability of normal persons."[7] Between 1947 and 1950, 1,700 federal job applications were denied, 4,380 people were discharged from the military, and 420 were fired from their government jobs for being suspected homosexuals.[8]

Let's be clear here, McCarthy's paranoia and hostility basically included anyone who didn't think and act in some stereotyped way that McCarthy and his allies had dreamed up. This is but one of many factors that played into creating a social pressure cooker that was going to go awry sooner or later.

Cities performed "sweeps" to rid neighborhoods, parks, bars, and beaches of gays. They outlawed the wearing of opposite gender clothes, and universities expelled instructors suspected of being homosexual.[10] Thousands of gay men and lesbians were publicly humiliated, physically harassed, fired, jailed, or institutionalized in mental hospitals. Many lived double lives, keeping their private lives secret from their professional ones.

Now we get more into the heart of the issues that ultimately led to and provoked the Stonewall Riots. We aren't talking about the US Federal Government running its own little "Spanish Inquisition" to ferret out "enemies of the state", but also of an atmosphere of systemic criminalization and discrimination against GLBT people in their day to day lives. As revolutions around the world, and throughout history, have repeatedly shown, it is unlikely that such a harsh form of oppression will be sustainable. Even the Magna Carta's roots are in an uprising against abuses of power.

Closer to the Stonewall Inn itself, we have the following environment being fostered by the politicians:

By the early 1960s, a campaign to rid New York City of gay bars was in full effect by order of Mayor Robert F. Wagner, Jr., who was concerned about the image of the city in preparation for the 1964 World's Fair. The city revoked the liquor licenses of the bars, and undercover police officers worked to entrap as many homosexual men as possible.[31] Entrapment usually consisted of an undercover officer who found a man in a bar or public park, engaged him in conversation; if the conversation headed toward the possibility that they might leave together—or the officer bought the man a drink—he was arrested for solicitation. One story in the New York Post described an arrest in a gym locker room, where the officer grabbed his crotch, moaning, and a man who asked him if he was all right was arrested.[32] Few lawyers would defend cases as undesirable as these, and some of those lawyers kicked back their fees to the arresting officer.[33]

So, in New York, we have a situation where the police were engaging in entrapment - clearly this is well before any laws that made entrapment illegal. I don't think it's terribly difficult to infer from this that the GLBT community in New York would be less than trusting of the police.

But wait, it gets better.

Police raids on gay bars were frequent—occurring on average once a month for each bar. Many bars kept extra liquor in a secret panel behind the bar, or in a car down the block, to facilitate resuming business as quickly as possible if alcohol was seized.[3] Bar management usually knew about raids beforehand due to police tip-offs, and raids occurred early enough in the evening that business could commence after the police had finished.[47] During a typical raid, the lights were turned on, and customers were lined up and their identification cards checked. Those without identification or dressed in full drag were arrested; others were allowed to leave. Some of the men, including those in drag, used their draft cards as identification. Women were required to wear three pieces of feminine clothing, and would be arrested if found not wearing them. Employees and management of the bars were also typically arrested.[47] The period immediately before June 28, 1969 was marked by frequent raids of local bars—including a raid at the Stonewall Inn on the Tuesday before the riots[48]—and the closing of the Checkerboard, the Tele-Star, and two other clubs in Greenwich Village

So, not only do we have an atmosphere of legal oppression levied against a group of citizens, but there had been an increase in police raids.

Further, laws which attempt to dictate that men must dress like men, and women like women falsely presuppose that the state has an interest in defining what is "masculine" clothing and what is "feminine" clothing. It does not, and worse, it is next to impossible to define that in any reasonable sense. Such laws are nothing more than blatant attempts to criminalize the fundamentally harmless activity of cross-dressing. In many respects, these raids impacted the transgender part of the population disproportionately although I imagine a fair number of "butch" lesbians were caught in the same net.

Whether the Stonewall riots were "unnecessarily violent" or not is immaterial. One cannot reasonably examine the riots themselves in a vacuum without giving consideration to the environment which gave rise to them. Any population that is actively suppressed from living peaceable lives will sooner or later rise up against their oppressors. While the New York police might have only been the instruments of oppression, it was with them that the GLBT population in New York ran into constant conflict. What happened in 1969 has happened before in other contexts - it only took a few cross-dressers deciding it was time to fight back for the rest of the people in an already tense situation to follow suit.

The issue is not, as some would claim, one of mere momentary violations of rights, but rather the consequences of a protracted campaign of oppression, harrassment and abuse at the hands of the state.

Canada's Conservative Government - Missing The Point

I don't think it's any secret that I'm no fan of the current conservative government in Canada. Their handling of several foreign affairs files makes my point for me - this is a government that has placed ideology and assumed guilt ahead of due process and law.

Whether we are talking about Mr. Abdelrazik, Mr. Celil or Omar Khadr, the Conservatives have failed to perform their duty to Canadians who are being detained abroad.

When they file papers like this in court, I think it tells you a great deal about this government's attitude to Canadians who dare travel outside our borders:

Canada's legal duty to protect its citizens, even children, ends at the border and there is nothing in domestic or international law that obliges the government to seek Omar Khadr's repatriation, say federal arguments filed in court.

We don't need to go into the game playing that Mr. Abdelrazik has been subjected to:

In a toughly worded 107-page ruling, Judge Zinn pilloried the government's claims of trying to help Mr. Abdelrazik, concluded that Canadian anti-terrorism agents were implicated in his imprisonment in Sudan, denouncedthe UN terrorist blacklist as an affront to justice and basic human rights and slammed Foreign Minister Lawrence Cannon for high-handedly ignoring due process of law.

When comments like the following are made in Parliament, I think it tells us something about the toxicity of the current government:

Said Justice Minister Rob Nicholson, under fire in the House of Commons Thursday by NDP MP Libby Davies: “Inasmuch as I have never been a member of the NDP, we will actually read the decision before taking a decision on it.”

In short, Minister Nicholson is saying that the government is going to drag its heels on this, and find every way it can to subvert, dodge and avoid carrying out its duty to a Canadian citizen. I don't think I have ever experienced such a small-minded, mean-spirited government...except possibly the PC government in Alberta in recent months.

I have criticized many of their legal reforms as violating all sorts of key principles of justice, and their conduct towards Canadians held abroad is so appalling as to simply leave me wondering if they even understand what law and due process are actually intended to serve.

Why Don't I Believe This?

Somehow, I find the doctor's testimony suspect:

“In Mr. Dziekanski's death, we know his [heart stopping] was not immediate, we know he had an adequate cardiac rhythm for a number of minutes following exposure to Taser,” said Dr. Swerdlow, who works at Cedars-Sinai Medical Centre in Los Angeles and also teaches at the University of California.

“So nothing here fits with direct cardiac electrical stimulation.”

Dr. Swerdlow also said that if the heart is affected by electrical current, the resulting heartbeat would be either too fast or irregular. The first time anyone noticed anything wrong with Mr. Dziekanski's heart was when firefighters arrived and found he had no pulse at all.

... and just what do we know about Dr. Swerdlow?

A cardiology expert paid by the company that makes Tasers told a public inquiry Tuesday he doesn't think Robert Dziekanski's death was at all related to the controversial stun guns.

Uh huh. So, this is one of the people Taser pays to claim that their weapon is "harmless". That's like going to a doctor paid by the tobacco company for an explanation of the relationship between lung cancer and tobacco smoke.

There have been far too many deaths occurring after people have been assaulted with these things for me to buy that there is "no connection" between their death and the jolt the Taser delivers. Once or twice is coincidence, after that we have to start getting suspicious.

Not being an MD myself, I can only speculate on how a Taser might cause death some minutes later. However, we know that electrical discharges can cause all sorts of problems with various parts of the nervous system and like all complex systems, the nervous system doesn't necessarily respond immediately or as we might have initially predicted.

For now, I think that Tasers should be treated by law enforcement with the same caution that firearms are.

Blame The Victim: Angie Zapata Edition

The defense in this case makes me sick.

But an attorney for Allen Andrade said the case is about the woman's deception and Andrade's reaction to that deception, not whether Angie Zapata's lifestyle was right or wrong.

"This girl that he had just spent the last day with, was in fact a man, and Allen snapped," defense attorney Bradley Martin declared in opening statements.

Oh yes, the "trans-panic" defense (a variation on what's been used to justify beating GLBT people to death for years) It's the most intellectually vacuous excuse making I've ever seen - especially when it's murder.

Accusing the victim of "deception" hardly justifies a murderous response under any circumstances. If you are so fragile that learning someone is transgender is a threat to you equivalent to having a gun pointed at you, then perhaps you shouldn't be trying to date people yet.

The defense argument is ridiculous and offensive. To accuse a transsexual of being "deceitful" for living their life is beyond offensive, it demonstrates a clear lack of understanding of the transition process itself, and the WPATH standards of care which clearly obliges the transitioning person to live at least a full year in their chosen gender before they are candidates for Gender Reassignment Surgery.

Nieto showed jurors partial transcripts of tape-recorded jail calls in which Andrade allegedly told his girlfriend that he "snapped" and that "gay things need to die."

In another transcript, Andrade downplays the slaying. "It's not like I went up to a school teacher and shot her in the head, or killed a straight law-abiding citizen," he said in the transcript.

Martin said the jail calls were taken out of context as Andrade joked with his girlfriend about a crime he knew he didn't commit.

"Taken out of context" - ah yes, the excuse of politicians everywhere. In this case, the excuse of a murderer trying to justify to himself his own actions.

Let me be very, very clear here. Murder is murder. You cannot justify it based on some ridiculous excuse like "I panicked because she was transsexual". There is no way that someone being transsexual poses that much of a threat to anybody.

If the judge allows this defense to prevail, it will be open season on transsexuals across America. Sadly, this kind of defense is being used because it has been successful before - when it had no right to be.

Canada's Conservatives: Detention Without Trial

I cannot believe this appalling abuse by the Canadian government.

The Conservative government reversed itself today and denied an emergency passport to Abousfian Abdelrazik, preventing the Canadian citizen - blacklisted as a terrorist - from flying home to Montreal.

In a terse explanation, it said Foreign Minister Lawrence Cannon considers Mr. Abdelrazik a national security threat.

In a one-sentence letter, delivered this morning to Mr. Abdelrazik's lawyers, the justice department said “the minister of foreign affairs has decided to refuse your client's request for an emergency passport.” It cited Section 10.1 of the Canada Passport Order which says “the minister may refuse or revoke a passport if the minister is of the option that such action is necessary for the national security of Canada or another country.”

The refusal represents a complete reversal of the government's written promise of three months ago to issue Mr. Abdelrazik an emergency passport if he had a paid-for ticket home. Mr. Abdelrazik remains stranded in the lobby of the Canadian embassy in Khartoum, where he has living for nearly 11 months, granted “temporary safe haven” by former Foreign Minister Maxime Bernier.

As the Globe and Mail points out here, not only is there no case against the man, but the government is simply moving goalposts about in an effort to be obstructive.

Let's consider this for a moment. Mr. Abdelrazik is virtually a prisoner in the Canadian Embassy in Khartoum - he really cannot leave the embassy without risking arrest and further maltreatment at the hands of Sudanese authorities. The Canadian government refuses to issue him the travel documents he needs to return to Canada, and worse, insists that he get himself removed from a "travel ban" list that the UN maintains. Individuals cannot approach the UN to have themselves removed from that list, their government is obliged to do this.

In essence, the Canadian government has imprisoned Mr. Abdelrazik without trial, without charge and without recourse. Think about this. This is yet another in a long, and seemingly growing list of Canadian nationals abroad that the Conservative government has failed. In this case, the Canadian government has done worse than that, it has acted maliciously to obstruct Mr. Abdelrazik.

Canada's Conservative government - standing up for ... well ... repeating George Bush II, actually.

Campus Pro-Life: Not Getting It

I see the snivelling little twits at Campus Pro-Life have repeated the mistake that they made last November.

Campus security officers have warned that members of Campus Pro-Life could face more trespassing charges, but that doesn't worry Leah Hallman, one of six people who has pleaded not guilty to trespassing charges stemming for setting up the display in November.

"If we view that our actions are just actions and that what we are doing is not wrong, then we should continue to conduct ourselves in the manner that we always have," Hallman said on Wednesday.

I'd love to know how much CCBR is paying to fund the legal bills that these students are racking up. We already know that they provide the signage to Campus Pro-Life, and I wouldn't be at all surprised if this same bunch are prodding Campus Pro-Life members to do more in the name of "free speech".

What they are doing is not "just" in any sense of the word. What they are doing is propagating an intellectually dishonest argument in the most inflammatory way possible. This isn't just, it's propaganda.

Brit Aberle, who held a pro-choice sign across from the anti-abortion display on Wednesday, said members of Campus Pro-Life have the right to voice their opinion but the way they do it crosses a line.

"They use really graphic images and appropriate the struggles of Jewish folks and the Rawandan genocide. I have talked to many Jewish and Rawandan people and they don't want their histories being used for this."

I hope the judge hearing their current case throws the book at this bunch. It's clear that they just don't get it.

More "Get Tough On Crime" Nonsense

Innovative problem solving this isn't. When faced with a need to confront a growing gang problem, Harper reaches into the bag of standard conservative dogma and pulls out the hoary old saw about "getting tough on crime".

"Drugs are an intimate part of what gangs and organized crime are involved with in this country. We recognize they go hand in hand," he said.

According to reports, the bills will seek to make any gang-related homicide a first-degree murder charge and attach mandatory sentences for serious drug crimes.

Good luck with that. While we can mentally associate certain murders with gang activity, proving that association in a court of law is going to be a might bit more difficult. First of all, proving that someone is a member of a criminal gang is difficult enough. Laws in Canada in the past have tried to penalize members of "biker gangs" like the Hell's Angels. They have only met with limited success - in part because it's extremely difficult to prove that someone is a member of such an organization. The second problem becomes one of demonstrating that the motive for a killing was in fact gang related. The reason more First Degree murder charges aren't laid in the first place is the raw difficulty in establishing the perpetrator's motives adequately in court.

As for "mandatory minimum sentences" for whatever the Conservatives call a "serious drug crime", that's just plain bad policy. Throwing people in jail for ever increasing lengths of time is unlikely to have any significant impact on these youthful fools. The majority of what the police will pick up are the twenty-somethings who are running around on the street selling the stuff. At that age, they don't typically think overly clearly, and if they do think, it tends to be along the lines of "I'm invincible" - a ten or even twenty year sentence attached to dealing a bit of dope isn't going to deter them.

Worse, it does nothing to enable our law enforcement officials to go after the leaders of these organizations. The string pullers who keep themselves just far enough removed from the day to day violence of their "businesses" that they are difficult to charge with anything significantly criminal. (Remember, Al Capone didn't go to prison for murder or anything else - he was imprisoned for tax evasion. Thugs are a dime a dozen - and they are just that - thugs. They aren't the brains of the operation, nor is incarcerating all of them going to get rid of the gang problem.

I'll wait and see what they actually table in the House of Commons, but I'm guessing that it will be fundamentally pointless, as it will not address the root problems that give gangs the environment in which they operate, nor will these laws provide additional tools to law enforcement to go after the real problem.

Kick A Ginger Day - And Other Outrages

[Update: 24/11/08]:
Not only was this widespread, but when one considers the misuse of electronic media for the purpose of bullying it shouldn't be much of a leap to understand how such media can be abused in the propagation of blind hatred.
[/Update]

So, some bunch of teenagers decided that it would be fun to kick the crap out of their red-headed classmates.

On one hand, we might look upon this as "just a bunch of kids funnin'", but I think it warrants a much more sober examination in the context of other aspects of the Canadian political discourse.

It wasn't so long ago that it was common "sport" for a group of young thugs to get together and go 'roll a queer'. Usually such events took place after a few too many drinks, and the collective intelligence of the group fell. The 'kick a ginger' thing is in the same category - it relies heavily on identifying someone by a distinguishing characteristic, and then attacking them. The difference here, is that instead of things being organized over a few beer in a bar, the "event" was plotted and planned using Facebook.

Meanwhile, we have a group of people in Canada - headed by the oh-so-enlightened Ezra Levant, Kathy Shaidle and Mark Steyn who are busy trying to remove Section 13 from the Canadian Human Rights code (or, in the case of the oh-so-rational Ezra, dismantling the entire mechanism because it offends his sensibilities).

Collectively, their thesis is that "words can't hurt":

And yeah, I guess if you're a wimp, words can hurt. So man up. But we all know that "manning up" isn't an option in our metrosexual p.c. society...

Right. Let's consider this for a moment or two - a group of people were just posting words on Facebook. Those words enabled some people to give themselves permission to kick the tar out of someone for what they looked like. Now, I recognize that the three individuals I just mentioned don't understand the concept of civility to begin with - they collectively specialize in making their point by being as noxious as possible.

I wonder if Ezra has clued in that people who would do him a lot more harm simply for his ancestry are fairly salivating over the prospect of S. 13 going away (look for a post entitled "Folks on Stormfront Giddy With Excitement; Conservative Party Might Want to Take Notice of Who Their Supporters Are" - Nov 17/08).

I have always argued that the problem with Boissoin's hate filled letter of 2002 was that in essence it could give some people the license to go beat the crap out of GLBT people.

But, here we have a more direct example where electronic means were used to organize attacks on a group of individuals for no better reason than their hair colour. Now, tell me again how "words can't hurt"? I'd argue that there's a bunch of red-headed teens around right now that stand as proof to the contrary.

Our country's lawmakers had better think long and hard before they try to enact the CPoC policy to repeal S.13 of our human rights law.

Proposition 8 Blowback ... Part ???

I don't agree with the tactics described here or here - both represent a kind of protest that is wholly inappropriate.

That said, when millions of dollars are spent to strip rights from people, or to deny them equal standing in society, one cannot be overly shocked when there is a dramatic backlash. I stated back here that the most public backers of Proposition 8 in California would find themselves bearing the brunt of the outrage many would feel over that proposition's passage - I cannot claim that I'm overly surprised that some would resort to more extreme expressions of their outrage - although I am disappointed.

On a more constructive front, the legal challenges for Proposition 8 are intriguing indeed. Over at Lambda Legal, they have quite an interesting case they are putting forward:

The groups argue that Prop. 8 is invalid because it improperly attempts to undo the constitution's core commitment to equality and deprives the courts of their essential role of protecting the rights of minorities. According to the California Constitution, such a radical change in the way the courts and state government work cannot be decided by a simple ballot measure.

The California Constitution makes clear that a major change in the roles played by the different branches of government cannot be made by a simple majority vote through the initiative process, but at the very least must first go through the state legislature. Changes to the underlying principles of the constitution must be approved by two-thirds of both houses of the legislature before going to voters. That didn't happen with Proposition 8, and that's why it's invalid.

Interesting argument - I'll be very curious to see how far it goes. In the meantime, I sincerely hope that the recent reports of violence and implied violence are no more than the short term outrage of a few, and not a sign of a more extreme backlash - that will do nobody in the argument any good.

Interesting Challenge of Guantanamo Bay

I see that six detainees at Guantanamo Bay are challenging their detention in a US court.

The six Algerians were arrested in Bosnia in the weeks following the 11 September 2001 attacks on New York and Washington and have been held without charge ever since.

They deny government claims that they were planning to travel to Afghanistan to fight with al-Qaeda and the Taleban against US troops.

This is very much at the heart of my long standing objections to the very existence of the detention facility at Guantanamo Bay. Not only have the people being held there been denied basic access to due process, but worse they have been held even in the absence of coherent evidence to support the ostensible reasons for their detention.

I have to imagine that this case is the first of many that will ultimately dismantle some of the more awful aspects of the Bush II legacy. (Like trying to hold people in a legal limbo indefinitely)

I Believe That's Why We Call Them Criminal Gangs

Joe Warmington seems to think that because Gangs kill people, that we should kill gangsters.

Our justice system does not have the death penalty.

Theirs does. In fact in the gang world, they have child executions. Our system is soft. Theirs is deadly, and conducted in our schoolyards or wherever they darn well choose.

The implication is knee-jerk and impulsive. That because we don't apply the same brutal penalty that gangs do, we are being "soft on criminals".

In light of last week's carnage in Calgary, I can almost understand Warmington's logic - but he's still dead wrong.

First of all, he's forgetting the old adage about two wrongs not making a right. The state killing someone because they killed someone else doesn't really accomplish anything. In fact, the states with the highest murder rates in the US happen to also be the most zealous about using the death penalty. Kind of tells you something doesn't it?

Second, gangs are closer to paramilitary organizations than they are anything else. You don't shut them down by 'getting tough' - that doesn't work - in fact it plays into their hands. You shut them down by dismantling the social conditions that allow the gang to flourish in the first place.

Calgary is an interesting example in this respect. It has been a relatively peaceful city for many years - even in the light of dramatic growth and prosperity. So, why the flaring violence this year? I can think of several factors at play. First is money. There is a LOT of it floating around this city. I've seen 20-somethings tooling about in cars I wouldn't even dream of purchasing; housing is at a premium - if you aren't making a six figure salary, kiss home ownership goodbye, and chances are pretty good that finding rental options that aren't falling apart that you can afford is next to impossible.

So, not only is there huge money around, but the lower income bracket is getting squeezed. Don't have a degree? Tough luck, right? Well, not entirely - when you can pull down a pretty healthy bit of cash selling some dried up leaves or rocks of crack, suddenly drug dealing looks pretty compelling.

Crime will always exist to some degree; violent, organized crime is almost always an indication that something in the social balance equation has gotten out of whack. If we are going to conquer this problem, it won't be through 'tough' laws that throw people in jail for longer periods of time. We need to look at other large cities who have been through this same experience - like New York, which in the early 1980s was the most dangerous city in the USA, and now is actually fairly safe. It wasn't done by throwing people in jail or making the penalties harsher - it was done by addressing the problems that enabled the criminal elements to thrive in the first place.

I See The "Persecuted Christian" Meme Is Alive and Well

Oh goody, I see that Lifesite has gotten onto its favourite hobby horse - the one with "Poor Persecuted Christian"(™) spray painted on the side.

There's two gems that come bubbling up on their "news" site from the last two days:

CHRC Spokesman Will Not Say if Christian Teaching on Sexuality is “Hate”

followed by

Saskatchewan Marriage Commissioner Fined For Refusing To "Marry" Homosexuals

Let's explore these a bit further, shall we - after all it's always interesting to see how these people twist reality to suit their politics.

Pete Vere, a Catholic writer who has been working on the clashes between the Human Rights Commissions and Christians, asked Mark van Dusen, a media spokesman for the CHRC, “If one, because of one’s sincerely held moral beliefs, whether it be Jew, Muslim, Christian, Catholic, opposes the idea of same-sex marriage in Canada, is that considered ‘hate’?”

van Dusen replied, “We investigate complaints, Mr. Vere, we don’t set public policy or moral standards. We investigate complaints based on the circumstances and the details outlined in the complaint. And ...if...upon investigation, deem that there is sufficient evidence, then we may forward the complaint to the tribunal, but the hate is defined in the Human Rights Act under section 13-1.”

That's the bit that Lifesite wants you to pay attention to. If, however, you read a little further on, you discover what reality really is:

“Our job is to look at it, compare it to the act, to accumulated case law, tribunal and court decisions that have reflected on hate and decide whether to advance the complaint, dismiss it or whether there is room for a settlement between parties.”

In short, in a classic conservative line of questioning, a question was asked that calls for an absolute answer, and the CHRC responded with "it depends". Of course it depends on something - context and situation. When we are talking about topics such as the intersection between various aspects of the civil/human rights debate, there are seldom absolutes.

The real debate going on today (including cases like Boissoin) is about where the intersection of rights actually lands. When does "expressing an opinion" become promoting hate? Or when does "an opinion" arguably lead to violence or discrimination against some second or third party?

Of course, that isn't how Lifesite wants to frame it:

The issue before the CHRC, therefore, is whether Christian and Catholic teaching itself is considered under Canadian law to be “hate speech”.

Still more absolutism speaking here. In such circumstances, one has to ask if every utterance of someone who is Catholic is in fact "Catholic"(™)? In other words, just because a person claims to be a practicing Catholic (or member of any other faith), does that automatically extend protections to everything that they say on controversial subjects? What is the legal status of those utterances should the church decide that in fact the statements are heresy, and disavows them?

Just to muddy the waters even further, it's not as if the greater body of Christianity is unified in its teachings on sexuality at all. There is a great deal of differentiation between the various churches, so you can't even argue that there is a teaching on sexuality that is universally held within the broad spectrum of beliefs that stand under the umbrella term "Christian".

In the second article, we find the following:

A Saskatchewan human rights tribunal has fined Regina marriage commissioner Orville Nichols $2,500 for refusing to "marry" two homosexual men who approached him for the ceremony in 2005.

Mr. Nichols told the two men, identified only as "M.J." and his partner as "B.R." in the court documents, he would not marry them because it went against his religious convictions as a devout Baptist, but referred them to another commissioner, Edna McCall, because he was aware that she would perform same sex marriages.

Let's consider this for a moment. A marriage commissioner is a form of public servant - they are licensed to solemnize marriages before the law. They are not by definition ordained ministers acting simultaneously in their capacity as clergy.

If we start granting public servants the right to deny service based on some "religious belief", we return very quickly to the days of segregation and "separate but equal" treatment. The cold, hard fact is that under Canadian law, we are all equal before the law and government. Therefore, anyone who is a public servant is obliged to respect that reality when they are delivering government services to citizens.

The tribunal ruling stated that Mr. Nichols had contravened section 31.4(b) of the Saskatchewan Human Rights Code and that his refusal based on religious belief conflicted with his duties as a public officer. "The Commission stands by its position that to allow public officials to insert their personal morality when determining who should and who should not receive the benefit of law undermines human rights in Saskatchewan beyond the issue of same-sex marriages."

Of course, the wingnuts over at Lifesite continue their argument by painting the commissioner in question as such a wonderful, noble and upstanding citizen, and by implication, is being downtrodden by the evil human rights commission:

Mr. Nichols testified at the hearing that he had never received a complaint in his 24 years of service as a marriage commissioner, nor had there ever been a problem with any of the services that he had provided in his capacity as a marriage commissioner, even though he had in a number of different situations refused to perform a marriage ceremony, such as marriages of convenience for immigration purposes or when he had been asked to perform a marriage dressed up in a cowboy costume.

There's quite a difference between the examples cited above and denying services to a GLBT couple:

1. A "marriage of convenience" is something that is attempting to subvert the immigration process. There are good ethical (and possibly legal) reasons why knowingly participating in such a scheme is suspect at best. (Arguably to do so is in fact to perpetrate a fraud)

2. Being asked to participate in a manner that goes beyond the solemnization of the marriage itself (e.g. dressing in a "theme costume") is also a legitimate reason to walk away. Remember, at that point, the reason for denial of service is in fact not denying anyone access to legal services that others would receive from you. No protected grounds of discrimination have been violated here.

Meanwhile, denying someone service that you would grant to somebody else - based entirely upon your moral assessment of the situation, puts you into much more dubious straights when we are talking about people acting as agents of the government.

Of course, in the minds of Lifesite's writers, these are all examples of how Christians are being "persecuted" in the public square. Never mind that what is really happening is that discrimination based on Christian scriptures is being called out for what it is - discrimination, and often unlawful discrimination.

(BTW - if Christianity were really being "persecuted", one might well imagine that the CHRC and related bodies would have long since taken the Roman Catholic Church to task in Canada for its refusal to ordain women - a clear violation of Charter Rights no matter how you twist it - however, the CHRC has not touched such cases, arguing that in fact such matters are protected under Freedom of Religion and thus rightly handled within the context of the Catholic Church hierarchy)

Dear Fundagelicals:

If you think you need to self-censor your messages to avoid running afoul of Canada's hate crime statutes, perhaps you might want to rethink what your messages really are?

Of course, Daddy Dobson censoring his "radio show" is no big surprise. He'd claim he was doing that just to perpetuate the meme that hate crime laws are unreasonable. (Of course, none of these clowns will speak out against the violence that GLBT people are subjected to as a result of the fundagelical hostility towards GLBT folk - such as this piece of irrational garbage)

Finally, the reason for “indifference and confusion” is that the Supreme Court has legislated sexual orientation to be a Charter right. This newly coined “right” was “read” into the Charter by Justice Peter Cory in 1995. This new right of equality now conflicts with existing (Charter) rights such as freedom of the press and of religion (http://catholicinsight.com/online/features/article_788.shtml).

The last point answers at once the question why it is important, indeed necessary, in Canada to resist: our rights as citizens are at stake. This is true not only for Catholics and Evangelicals, but also for the Greek Orthodox, orthodox Jews, Muslims, Buddhists, Hindus and anyone who holds to a traditional understanding of marriage in natural law, both as individuals and as supporters of such institutions as school, church, synagogue, mosque and temple. ...

Wait a second here - just what rights are we talking about here? Somebody show me where it says that "freedom of religion" gives anyone the right to spew some of the absolute crap that Dobson is so worried about.

There's one of two possibilities here - either they haven't actually read the statutes - especially Sections 318, 319 of the criminal code. In particular, I would draw your attention to S. 319(3), which reads:

(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

So, if you are establishing an argument based on religious texts, there is a clear exemption. (Of course, when spewing the propaganda points that such luminaries as Paul Cameron have vomited up, there's little that could be framed in terms of any scripture - bad science is still bad science, even when wrapped in Leviticus).

Thus, one must suspect that the bible thumping crowd that follow Dobson's line either knows damn good and well that their supposed "religious opinions" are well beyond the line and really are hate propaganda, or that they are utterly ignorant of the wording of S319 3(b).

In the first case, it's time to reconsider the messages being published, isn't it?

In the second case, it really is time to start reading the laws before making false claims about it.

Harper Still Doesn't Understand

If I hadn't heard about Harper's comments regarding Lunn's actions today, I might have thought the man had figured out when to shut up.

The prime minister took aim at the head of the Canadian Nuclear Safety Commission — Linda Keen — saying her decision to shut down the reactor could have “needlessly endangered” the Canadian medical system.

Mr. Harper stressed that members of Parliament overturned Ms. Keen's decision in less than 48 hours and he remains “troubled” by Ms. Keen's recent actions.

Obviously, neither Mr. Harper, Mr. Lunn or their respective advisors have taken the time to actually read the CNSC letter of a day or so ago in response to Mr. Lunn's blatant threats.

Perhaps even worse is the fact that neither Mr. Harper or Mr. Lunn seem to understand the arm's length relationship between the Government of Canada's various regulatory or judicial commissions and the House of Commons.

I suspect that Ms. Keen, in her current capacity, has little or no flexibility with respect to the processes by which the CNSC is obliged to operate - bound quite strictly by the acts of parliament that created and guide the CNSC's existence.

This is far from the first time that Harper has played politics with government bureaucrats - there was the whole uproar over veiled voters last September - and again, Mr. Harper was running around threatening to fire people for daring to disagree with him.

This man doesn't get it. He clearly does not understand Canada's governmental structures and the roles of various bodies which exist adjunct to parliament itself. He seems to think that as soon as the laws that bind these commissions are a problem, that the commissions should simply bend to his will - even if it means that they would have to break the very laws that govern them.

To borrow a phrase from criminal law, "Ignorance of the law is not an excuse, Mr. Harper".