Harper's Attempt To Politicize The Judiciary

More so than any Prime Minister in Canada's history, Harper is hell-bent on imposing his political agenda on Canada's courts.

But there's another way to look at it, based on a view shared by Stephen Harper and others in his inner circle, that judges on Quebec's senior courts are too liberal‎ and far too activist in applying the Charter of Rights and Freedoms as a check on the power of elected officials.

Let's be clear about something here.  Harper thinks that he should be able to write laws that violate our Constitution.  He has done it multiple times, and so far the majority which have been challenged in our courts have been struck down.  Every time, it is met with griping about the "will of Parliament being thwarted", which we should really understand to be "The Will of Stephen Harper has been thwarted".

But it's entirely consistent when you consider the broader signal the Harper government is sending to try to change a judicial culture it considers more liberal than conservative. 

That change, apparently, includes the Supreme Court of Canada, even though Harper has already appointed five of the judges now serving there. 

Last week, anonymous senior Conservatives complained to a Postmedia journalist that the court was thwarting the government's agenda. They alleged Chief Justice Beverley McLachlin had, last July, tried to lobby the prime minister not to appoint Nadon to her court.

What Harper is overlooking in his drive to stack the court with judges that he thinks should be his political allies is that in today's Canada, the courts stand as part of the checks-and-balances in the Constitution that stay Parliament's hand from writing truly unreasonable legislation.

By "Parliament's will," the Conservatives really mean the prime minister and his cabinet — the executive branch of government. They are not fans of the Charter of Rights, introduced in 1982, and not fans of the powers it gave the judicial branch to hold government in check. 

The prime minister made that clear last week when asked if McLachlin's court was holding up his political agenda. 

"My view is that in our system post-1982 we have a system where the court has had an expanded role in judging the appropriateness of laws, not just under the traditional constitutional criteria but under the Charter,'' he said. 

What Harper sees as a constraint on his power is in fact a constraint, and a necessary one if his legislative track record is anything to go by.  Of course, what Harper is likely equally ignorant of is that where the courts in Canada represent a check on his power, prior to 1982, the Privy Council and the Queen in England were that check, and a much less clearly defined check on the powers of Parliament.

Few things are as appalling as the current public smear campaign against the Chief Justice on the part of the PMO.  This is nothing more than an attack on McLachlin's personal and professional credibility, driven solely by political frustration.  Where Harper has a long history of going after the heads of agencies that frustrate him, or dismantling science research which happens to disagree with his politics, all of those agencies are subject to the direct will of Parliament.  The Supreme Court, as one of the independent arms of government, enjoys protection from the "will of Parliament".  While Harper can try to attack the Chief Justice personally, his ability to go after her beyond that is very limited.

It should worry Canadians deeply that the Harper Government is so ideologically driven that it finds the natural constraints present in our Constitution (which is a relatively young document, and therefore a reasonable reflection of the current norms of good governance) to be an impediment to its agenda.  If those constraints didn't exist, what would he be doing to Canada?

 

What Is This? The 1950s???

I have no idea who the parties are behind Airdrie's Footprints For Learning Academy, but someone needs to give them a shake and educate them about a few things regarding gender and sexuality.

Their dress code is something out of the 1950s, with rigid gender roles assumed, and strict rules about who can wear what:

7.  Only one set of conservative earrings (pierced or otherwise) may be worn (by girls only) with one earring for each ear lobe.  They must be subtle and non-distracting.  No other visible piercings are allowed.  All other earrings are to be left out while on school property or at a school event.  Boys may not wear earrings.

You have got to be kidding me.  What exactly does "conservative earrings" mean?  Talk about a vague and undefined concept.

Since when in the last 40 odd years has it been inappropriate for males to wear earrings?  That's been pretty normal in my world since at least the 1970s, and widespread since the 1980s.  Who the heck cares if a boy is wearing earrings or not?

But it gets better.  Much better.

17.  Acceptable clothing items for girls:
Shirts, T-shirts, skirts, shorts, jumpers, dresses, pants, shorts, modesty shorts, sweaters. 

18.  Acceptable clothing items for boys:
Shirts, T-shirts, shorts, pants, sweaters.  Boys may not wear skirts, dresses, jumpers or other clothing and accessories specifically intended for girls.

Wow, talk about rigid gender assumptions.  What is this school going to do with the first Trans* children that happen to cross their threshold?

Besides that, the notion of "specifically intended for girls" is pretty ambiguous these days.  I see plenty of girls wearing all sorts of things, and equally boys are becoming much more flexible in their dress as well.  The notion of "girls things" and "boys things" that existed in some idealized past really don't seem to have the same clarity any longer.

But Alberta Liberal education critic Kent Hehr was quick to point out even public schools like Footprints receive a portion of their operating funds from public coffers. The provincial education ministry provided nearly a $1 million to the Footprints for the 2013-14 school year, about 70 per cent of its total operating budget. 

Hehr noted freedom of expression through clothing choice is not a crime. 

“It’s clear — once you take public money you have to follow the law of the land and develop policies accordingly,” Hehr said. “it doesn’t appear to me that this school has in this case.”

So ... taxpayers paid 70% of this school's operating budget? ... and they are engaging in what I will call subtle homophobia / transphobia by implementing policies like this?  That I have problems with. It has been a long fight in Alberta to begin the process of breaking down the systemic discrimination that LGBT folk experience every day, and it is less than acceptable to me that a taxpayer funded "private school" (it's legally a private school - if it's taking taxpayer dollars, it's _NOT_ private) should be able to create these kinds of ridiculous policies and get away with it.

To the owners of Footprints For Learning Academy, I suggest to you that it would be appropriate to revisit your dress code and related policies.  It's time to lose the destructive rigidity of your policies and replace them with something a little more flexible and reasonable.  Trust me, a boy wearing earrings isn't going to end the world ... and if one walks through the door wearing a dress one day it might just broaden yours a little.

What David Reimer's Story Really Demonstrates

Over at LifeSite, we find one of their editorial staff grossly misunderstanding the tragic story of David Reimer.  

His tragic death emphasized the total failure of one of the most famous gender alteration cases in modern medicine....David Reimer’s traumatic life and horrific death testify that no matter what elaborate theories the unscrupulous attempt to justify in the name of science, nature will always have the upper hand, often at the expense of human life.

The story of David Reimer is important in the canon of understanding gender identity, but not in the way that LifeSite's commentators seem to think:

Parents have a duty to raise their children properly, to demonstrate and teach them what is acceptable and what is not; what is normal and what is not. When parents fail in their duty (often purposely), you end up with the all too common case like the raised-by-lesbians pitiful child TwinCrier links to. 

While they may not be "burning off" anatomy as they (accidentally) did to Mr. Reimer, they are indeed prepping these unfortunate children to make that leap as soon as they reach the age of majority required by most "sex-change" surgeons. Don't mistakenly think the latter is any less insidious than the former: they are all child abuse.

While LifeSite's acolytes try to twist the story of David Reimer as a combination of "liberal science run amok" and evidence that treatment for transgender people is in fact unnecessary, it actually presents something quite different.

Let's consider a few facts.  First, David's cross-gender story starts when his penis was burned off in a botched circumcision.  Then, on the advice of Dr. Money, his parents chose to raise him as Brenda.  Then, as an adult Brenda transitioned to be David.

At no point in this story is there ever any evidence that David identified as female.  In fact, in John Colapinto's biography of David, there is reason to suspect that in fact Brenda fought against being treated as a girl quite strongly.

It is the fact that there is no evidence of David having ever identified as female is ironically consistent with the often described experiences of transgender people.  Where Brenda consistently fought against being raised as a girl, the trans experience of childhood is often analogous in that trans people are similarly persistent in fighting against the gender role that has been assigned to them.

The David Reimer story demonstrates more clearly than anything else that gender identity is not simply a social construct as Dr. Money suspected, but that it has much more fundamental dimensions to it that reach beyond learned constructs.

One of the accusations that the anti-Trans crowd likes to throw around is that Trans people are merely "making a choice".  Yet, if we consider David's struggle a validation of the foundational nature of gender identity, there is a problem with their logic.  If it was "just a choice", would Trans people be so consistent in describing an awareness of being Trans as part of their earliest memories?

The David Reimer case demonstrates the persistence of gender identity, and its fundamental intransigence to attempts to change it.  

On "Toll Lanes" In Calgary

I see that the geniuses at the Manning Foundation have put on their thinking caps and burned some extra wood to come up with this idea.  

The Manning Foundation is recommending tolls on some Calgary roads, such as Glenmore Trail, Crowchild Trail and Deerfoot Trail. 

"Folks are spending more time in traffic than being in the office, earning their incomes and contributing to the economy,” said report writer Ben Brunnen. 

He suggests one lane of existing traffic on those major thoroughfares could be transformed into a toll express lane. Drivers would pay $5 a day to use the faster lane. 

“In the event the traffic pattern warrants more people moving to the high occupancy lane, well then, the price would increase," he said. 

Tolls could raise $76 million in profit for the city every year, the report suggests.

What kind of self-absorbed stupidity is this?  Do the wealthy, entitled people living that bubble really believe that Calgarians have an extra $10 a day (and that's assuming they only use one of these toll lanes) per day going to and from work) to throw away?  Of course they don't.  This is a bunch of rich people trying to find a way to buy themselves an express lane so that they aren't afflicted by the horrors of sitting in traffic with their Mercedes idling behind my Kia.  (Oh the horror!)

Trying to retrofit a "toll lane" onto any of Calgary's major roadways is asking for a traffic flow disaster.  First of all, these roads are major arteries hundreds of thousands of cars use them daily.  In fact, you pretty much cannot avoid them if you are moving around in Calgary.  Want to get up to the Airport, that's Deerfoot.  Live in Douglasdale, and want to get up to the University, you're dealing with Deerfoot, Glenmore and Crowchild.

Of course, the Manning Foundation doesn't talk about just how these lanes should be implemented on existing roadways, nor do they talk about the logistical problems of creating such lanes and ensuring safe access to exits from them.

Nor do they account for the social consequences of creating a "privileged lane" that is really only accessible to the wealthy.  If you think Calgary drivers are a bunch of aggressive drivers now, just wait until you choke off traffic flow on a major artery like Glenmore and a driver wants to get from the "rich lane" onto the Crowchild exit.  I guarantee you that people won't be polite about it.

The argument that I see being put forward is that we need a "user pay" model for maintaining this kind of infrastructure.  What's next?  A "user pay" model that charges my sewage a toll when it enters the main sludge lines?  Roadways in this city are common property - we all pay property taxes (either directly as homeowners or indirectly as renters).  We all paid for those roads in the first place, and collectively we pay for their maintenance through taxes and the like.

Whether you call it a "user fee", a "service fee" or anything else, it still boils down to a form of taxation.  In other words griping about property tax increases and then promoting "user fees" on the roads to fund maintaining the roads is just ridiculous.

Frankly, it seems to me that if you want to implement "toll roads", there has to be a valid alternative route through the city first.  More to the point, I shouldn't be obliged to negotiate toll roads if I don't want to pony up.  Since this city's class of wannabe oligarchs wants their own little private road system to play on, I suggest that they pony up for the full cost of the thing, and pay for it with their vaunted tolls as they drive on it every day.  Let's see how incredibly effective that really is.  Oh yes, by pay the full cost, I mean all of it - they can pay for the everything from the land it sits on, to the rights of way, the gravel for the roadbed and the asphalt that sits on top.  Hell, if they want gold plated lights, go for it.  But they can pay every plug nickel of it - not a penny of the costs can come from public coffers.

You don't get to build your little privileged road system on the road system that the all Calgarians pay for through their taxes.

Just Shut It Down Already

As if we hadn't already heard enough about the vileness that is the TFWP, we have two major revelations today which more than justify shutting the whole thing down immediately.

First up is the "advice" that a company which recruits TFWs gave to an employer:

According to the email, which was obtained by CBC's iTeam, the Saskatoon-based recruiter told Houston Pizza in Estevan, Sask., that some employers of temporary foreign workers find that over time, the workers "become 'Canadianized' and increase their demands on the employers.'" 

"We believe a simple reminder to the workers will reverse the effects of the Canadian influence," it says.The 2011 email essentially suggested telling such "Canadianized" workers that if things don't work out, they could be sent home. 

International Manpower is part of the Mercan Group of companies which helps employers across Canada recruit temporary foreign workers to jobs many Canadians don't want.

If this doesn't show us in clear and unambiguous terms that this program has become exploitation, I don't know what will.  Essentially, this is telling employers to rule their workers with fear and intimidation - all the while, subjecting them to working conditions that Canadians would never tolerate.  

“After we actually agreed to everything, [Qizel] just said ‘Look guys you are working on commission. You don’t like it, you can get deported, I am cancelling your permit,'" said Soloviov. 

He said they were told they would get 25 per cent from each sale. The shock came on paydays, he said, when they received next to nothing. The employer deducted $225 every two weeks for rent plus other “fines," from the little pay they were supposed to get. 

“If you look at it, it’s modern slavery. Because some people were not actually paid at all,” said Soloviov. “I got paid 50 bucks or 100 bucks in the three months I worked and that’s bad exploitation. But some people were actually slaves and ended up owing him money.”

This is straight out exploitation.  It isn't even just a case of bringing in people from abroad to replace Canadian labour.

However, when you look at this through a different lens, it becomes quite clear that this program has been mutated by the Harper Government into part of a program aimed at driving down Canadian wages.  Like so-called "right-to-work" legislation, the TFWP has become a tool which has been used to dramatically alter the supply-and-demand balance in Canada's labour force.

Make no mistake, the TFWP has been around for ages, but it has been under Harper that it has been broadened to the point that TFWs are being used not as a means to fill a need for specialized knowledge or skills, but as a tool for getting labour cheaper than Canadians would tolerate.

SHUT IT DOWN NOW!

The Harper Government Attempts To Politicize The Courts

In the wake of a series of failed gambits involving the Supreme Court, we now find Harper attempting to assassinate the character of the Chief Justice.

"I can tell you this," said a clearly irked Harper, who appointed Nadon last September after commissioning independent legal advice that approved of the choice. 

"I think if people thought that the prime minister, other ministers of the government, were consulting judges before them or — even worse — consulting judges on cases that might come before them, before the judges themselves had the opportunity to hear the appropriate evidence, I think the entire opposition, entire media and entire legal community would be outraged," he said. 

"So I do not think that's the appropriate way to go."

Let us take a close look at Harper's statements here.  First, he is implying a similarity between a case that is before the courts and the deliberations of parliament with respect to making an appointment.  There is no such similarity, and Harper is lying to Canadians when he implies it.

An attempt on the part of a politician to lobby a judge regarding a case before the courts except as a witness before the court is clearly an attempt to confound the process of justice.  (This same principle applies to all participants in a litigation)  There is a very good reason for this, and that is to assure the public as a whole that justice is not only seen to be done, but that it is done independently of the influence of politics, wealth and other factors.  Harper is quite correct to say that had it come out that his office had lobbied the justices of the court with respect to a case before the court that the public would be outraged.

Appointments to the court, are done by parliament.  Parliament is a public body - it is responsible to the public, and its actions are subject to public scrutiny.  It acts on behalf of the public, and theoretically, in the public interest.  The proceedings of the elected bodies of parliament are inherently public through the publication of the Hansards, as well as records of committee proceedings.

This makes an appointment of a justice to the Supreme Court just as much a public proceeding as a debate over a piece of legislation.  Further, there is an existing process where in fact the committee is obliged to consult with the justices currently sitting on the court when appointing a new justice. 

McLachlin spoke to Harper "as a courtesy" last April to give him the retirement letter of justice Morris Fish, said the statement. 

She met with the parliamentary vetting committee on July 29 "as part of the usual process," then contacted Justice Minister Peter MacKay and the Prime Minister's Office on July 31 "to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court." 

McLachlin's office said it contacted the PMO to make "preliminary inquiries" about setting up a call or meeting with Harper on the matter, "but ultimately the chief justice decided not to pursue a call or meeting." 

"Given the potential impact on the court, I wished to ensure that the government was aware of the eligibility issue," McLachlin said in her statement. 

"At no time did I express any opinion as to the merits of the eligibility issue. It is customary for chief justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment."

Let's take a close look at the Chief Justice's comments as well.  First, she met with the committee as part of the standard process.  So far, nothing abnormal or unusual here.  Then a couple of days later, she contacts the Justice Minister to raise a flag over the eligibility of Marc Nadon.  Raising a flag over a matter of this nature is perfectly legitimate, and I cannot imagine how this constitutes an unreasonable action on the part of Justice McLachlin.

In fact, what she is doing in raising the issue is warning the government that they could be creating a serious political landmine for themselves should they proceed with Marc Nadon as an appointee.  Had the government actually heeded her warning and proceeded with a different candidate, they would have saved themselves a public embarrassment.

Which brings me to Marc Nadon's appointment in the first place.  Outside of being apparently ideologically compatible with Mr. Harper, there is little or nothing about Mr. Nadon that makes him one of Canada's noteworthy legal professionals.  So, one might imagine that a lot of people would be wondering about why he was even a candidate outside of Harper's desire to push the court in a particular political direction.

As he has done in the past with other public figures who have stood against him, Mr. Harper is once again playing to his mean-spirited, vindictive side.

That writer, Tom Flanagan, now is back with a forthcoming book, Persona Non Grata: The Death of Free Speech in the Internet Age, that speaks of Mr. Harper in “Nixonian” terms, as a man who “believes in playing politics right up to the edge of the rules, which inevitably means some team members will step across ethical or legal lines in their desire to win for the Boss.” 

Anger Harper, or thwart his political objectives, and he comes out on the attack.  He's done it before, going as far as to fire Linda Keen for failing to obey his politically motivated desire to restart a reactor that was unsafe.  I'm sure that had he dared, he would have sacked Parliamentary Budget Officer Kevin Page long ago, except the political price of firing him would have been exceptionally damaging to Harper's political ambitions.

Getting into a spat with the Supreme Court justices simply reinforces that this is a thin-skinned politician who fails to respect the checks and balances that are central to this country's constitution.

The Term Is "Checks and Balances"

Apparently in the Harper Government™, there is a growing frustration with the Supreme Court in the wake of a series of rulings that the politicians think of as defeats.

But, privately, MPs on the government side of the House are bitter. “It’s clear that Canadians don’t make laws through their governments any more. Instead, they watch while unelected courts override important community standards,” said one MP, speaking about the court’s decision to strike down Canada’s prostitution law. “[Canadians] are powerless to act through their government and left to live by court edict that doesn’t have any public support.” 

There were suggestions that the government accepted amendments to its Fair Elections Act before a hostile court threw out much of the legislation on the eve of the next election. 

“The left will celebrate this as a triumph — what they couldn’t achieve politically, they have achieved through decades of court appointees,” said one MP, ignoring the fact that the majority of the current court was appointed by Stephen Harper. [Emphasis Added]

Apparently despite being in power for the best part of a decade, the CPC under Harper has failed to understand that our constitution contains a series of checks and balances in it to keep any one branch of the government from running too far amok.

I find it a truly sad statement that the CPC is so lacking in fundamental understandings of something as basic as our Constitution, and in particular the amending formula for it.  A significant portion of the legislation that the Harper Government™ has failed when challenged before the Supreme Court under the provisions of the Charter of Rights in particular.

The Harper Government™narrative is that the Supreme Court has ruled that "none of its reforms are possible".  This is incorrect.  The court ruling quite specifically states in each case what aspect of the Amending Formula applies.  Not that the changes cannot be made, but rather that the changes cannot be made without the approval of the provinces.

These are a key part of the notion of checks-and-balances.  Just because a politician has been elected does not make their particular legislation inherently correct.  There is a framework that they must work with.  The claim of overriding legitimacy on the part of the Harper Government™ simply because they were elected is a false narrative.  The legislative branch of government has the power to influence the appointments to bodies like the Supreme Court and the Senate.  But the legislative branch cannot dictate to those bodies how they should conduct their business.

In response, those appointed bodies have limited powers.  The Supreme Court interprets law, and may declare a given part of legislation invalid when held in consideration with other laws in the land, but cannot create legislation itself.  Similarly, the Senate has limited powers to create legislation, usually bounded by whether the legislation involves government spending.  These are all aspects of our governmental system which stay the hand of overreach on the part of any one branch of government.

It is unfortunate, but the current government seems uniquely impaired in its understanding of this reality.