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Archive for the ‘Law’ Category

John Robertson of PIVOT Legal Society (photo from The Tyee)

While it will be easy enough to find red (and white) in Vancouver this February, PIVOT Legal Society is hoping that you notice the colour for a different reason, as they kick off a new campaign aimed at highlighting homelessness in the city. I have frequently said that there is much more value in co-opting the Olympic platform to attempt to shine a spotlight on any given issue than directly protesting against the Games. PIVOT’s latest strategy seems be following in that line of thought exactly.

In 2008, a BC Court ruling struck down a Victoria city bylaw that prevented the homeless from erecting tents in city parks for shelter. The court ruling found that if adequate shelter from the elements could not be found (ie. in shelter spaces) then homeless citizens have the right to provide themselves some shelter with tents. In December of 2009 the BC Court of Appeals upheld this ruling. With that right affirmed, PIVOT will be distributing up to 500 red tents amongst members of Vancouver’s homeless population. Not only will they afford some basic protection, erecting the tents will be a very visible case of exercising the rights affirmed by last December’s appeal court ruling. It is no mistake that PIVOT’s latest endeavour coincides with the Olympic games. The city will be flooded with media from around the world. As Canadians we should be ashamed at the idea of removing these people from sight during a big international celebration. Vancouver is an amazing place that I feel is most deserving of all the attention it garners as a livable city. That should not obscure the fact that the city has a significant homeless population. In fact, it calls for a reaction that is completely opposite; one that says not only do we recognize there is a problem, but we are going to work to improve the situation. At the very least, this latest campaign forces the city (and world) to be cognizant of the problem.

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• Anti-Olympic Voice Turned Away At Vancouver Airport [/caption] On Saturday, after undergoing several hours of questioning from Canadian customs officials, Martin Macias Jr., an activist with ties to the Olympic Resistance Network attempting to travel to Vancouver to cover and participate in...

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Photo from Mr. Macias' Twitter Account

On Saturday, after undergoing several hours of questioning from Canadian customs officials, Martin Macias Jr., an activist with ties to the Olympic Resistance Network attempting to travel to Vancouver to cover and participate in various anti-Olympic protests and rallies, elected to return to the US instead of remaining in Canadian custody. The above linked to CTV news report does indicate that Macias was the given the choice to remain detained in Canada and await trial for withholding information. Being a working student, this was not an option for Macias and he returned to the States. The ORN reports that Macias has no criminal record that they are aware of.

While the decision to grant entry to the country ultimately lies with Canada Border Services, I am of the opinion that we should only be turning people away with just cause; as of right now there does not appear to be any in the case of Mr. Macias. Personally, I have a much different viewpoint of the Games than the members of the Olympic Resistance Network, but I completely defend their rights to participate in peaceful protest (although other tactics have been espoused by the group), as well as report on it. The city, VANOC and ISU have all been slow in the past when addressing free speech concerns. While this is a slightly different case, in that it involves a US citizen travelling across our border, it still falls into the same broad category, and Canada Border Services joins that group of organizations engaging in poor information management that only serves to make them look bad. With the ORN hosting a two day conference (or ‘convergence’ as they term it) set to begin on February 10th we can be certain that Mr. Macias will not be the only one with a negative Olympic voice attempting to enter the country. One certainly hopes that they will have better luck than Mr. Macias had should there be no overt reason to deny them entry. Border services have currently indicated that the specifics of Macias’s case cannot be discussed due to privacy concerns; with the agency indicating that “Canada’s admissibility requirements will not change for the 2010 Olympic and Paralympic games” a better accounting of the reasons for denying entry to Macias are certainly in order.

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Omar Khadr being interviewd by CSIS in 2003. Photo by: The Canadian Press

Friday was an extremely busy day and things did not all go Stephen Harper’s way. The Supreme Court, in a unanimous decision, held in part an appeal brought forth by the Prime Minister in regards to the ongoing detainment by the US of Canadian citizen Omar Khadr. Previously, a Federal Court had agreed with Mr. Khadr’s petition to the court that his rights guaranteed under Section 7 of the Charter of Rights and Freedoms had been violated, and ordered the government to begin to seek his repatriation. This ruling was upheld at the Federal Court of Appeals, leading to the appeal by the Government which was ruled upon on Friday. The Court held that the rights accorded to Mr. Khadr under the Charter have been violated but that directly ordering the government to seek his return to Canada was not appropriate, at this time. In sum, the Court decided to “grant Mr. Khadr a declaration that his Charter rights have been infringed, while
leaving the government a measure of discretion in deciding how best to respond.”

So, while the government does not have to immediately seek the return of Mr. Khadr, they are expected to respond in some manner to the Courts ruling that his Charter rights were and indeed continue to be violated. The Globe and Mail described the Courts ruling as a challenge to the Harper government saying that “a legal fist lies beneath [the ruling's] velvet glove.” In it’s ruling, the Court cited both the consistency of “the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations” but also noted that “courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution.” All of this is to say that the matter of the ongoing detention of Omar Khadr is not over. I previously suggested that perhaps President Obama was looking for Prime Minister Harper to help him out in one small matter by seeking the return of Mr. Khadr. And why not? All other western nations, concerned with what we now know were entirely credible allegations of abuse and torture at Guantanamo sought, and received the return of any of their citizens being held in the black site. There is no reason that Canada should not, even at this late time, follow suit.

• The New Shape And Direction Of The Canadian Senate Following through with what his spokesperson indicated at the time of the prorogation of parliament,  Prime Minister Harper made five new appointments to the Senate this past Friday, bringing the Conservative Party to a total...
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Following through with what his spokesperson indicated at the time of the prorogation of parliament,  Prime Minister Harper made five new appointments to the Senate this past Friday, bringing the Conservative Party to a total of 51 seats in the 105 member body. While that number does not represent an outright majority, holding a plurality in the chamber (much as the Conservatives do in the House) will manifest itself with a larger Conservative presence on reconstituted committees once parliament reconvenes, as well as greater sway of Senate’s agenda. Kady O’Malley has a nice rundown on each of the new senators here at the CBC’s Inside Politics blog.

Wasting no time in indicating how this new found power in the upper chamber will be wielded, Justice Minister Rob Nicholson held a press conference on Friday with two of the new senators. Much as they have since first forming a minority government in 2006, it appears the Conservatives will ride the perennially popular stance of being “tough on crime” as much as possible; all 5 new appointees shared the ‘tough’ credential, while Minister Nicholson made sure to colour the Opposition with dread “soft on crime” label. The minister even went so far as to imply that opposition parties, especially Liberal members of the senate, were actively preventing the administration of justice. The Globe and Mail was quick to note that:

In fact, of the 17 crime bills introduced by the federal Conservative government in the last session, only two were held up in the Senate for more than six months. Most died on the order paper when Mr. Harper prorogued Parliament in late December.

As a campaign stance, being “tough on crime” is one of the oldest plays in the book as it is a virtually an unassailable position; who could be said to be against improvements in public safety? But what does getting “tough” mean from a governing standpoint? So far, it seems to consist of widening the scope of, as well as lengthening mandatory minimum sentences. Much of the governments introduced crime legislation on this front has been amended through debate in the House (funny how a minority government will do that.) As has been noted by many others, this does not sit will with Mr. Harper. With the new arrangement of the Senate and most of the uncompleted work of Parliament ‘dying on the docket’ when it was prorogued, some bills are set to be reintroduced in the Senate in their original language when parliament reconvenes. With so much attention being heeded crime and public safety, it is worth taking a moment to take a look at crime levels as they currently stand in Canada:

From the ‘The Daily‘, a regular feature of the Stats Can webpage, here is the overall police reported crime rate, as well as the Crime Severity Index:

Declining Crime Rate: 1998-2008

And from the Juristat report ‘Homicide in Canada 2008′, the homicide rate per 100, 000 people from 1961-2008:

Canadian homicide rate: 1961-2008

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I suppose the whole notion of declaring a ‘War on Terror’ demonstrates that you have not really grasped how to effectively deal with the extremist tactic of terrorism in the first place, but baby steps are still a good thing.  Fareed Zakaria is driven to have to write the obvious in one of the State’s biggest papers:

The purpose of terrorism is to provoke an overreaction. Its real aim is not to kill the hundreds of people directly targeted but to sow fear in the rest of the population. Terrorism is an unusual military tactic in that it depends on the response of the onlookers. If we are not terrorized, then the attack didn’t work. Alas, this one worked very well.

It’s shameful and disappointing that this needs to be pointed out. At least in the year 2010 there are easily accessible tools that allow for the dissemination of this basic point. You don’t have to go to far back in time to get to a place where the garment rending of scared neo-cons is all that one can hear.

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I’ve never been a fan of tasers. Way too many people have already died directly from these devices or were killed in an event that involved their use. They have been adopted very quickly by law enforcement (both in the US and Canada) with very weak and lackadaisical guidelines, and it seems these guidelines are breached quite frequently with little to no disciplinary action. I would even be so bold as to say that they’ve been a force that is responsible for elevating lazy police work. Digby, writing at her fabulous blog Hullabaloo is always on top of these terrible accidents as they happen and if this is an issue that concerns you and you want to follow it I’d suggest adding her site to your daily blogroll. Here she is writing about one of the stories I linked to above:

[...]the man had done absolutely nothing wrong, presented no danger, had made no threats. The officers merely thought he might be mentally ill. And he screamed in agony when they shot him full of electricity five times in two minutes before he finally complied. (Of course, by “complying” I mean dying.) Therefore, they said they shouldn’t be held liable for killing him.

This is the logic that pervades the taser argument: The taser isn’t harmful so we shouldn’t be held responsible for killing people with them.

Recently the Abbotsford Police Department released the findings of an investigation into the conduct of the Vancouver Police Department during an incident this past summer that resulted in the death of Michael Vann Hubbard, a 54 year old homeless resident of Vancouver. The investigation concluded, amongst other things that:

The two police officers had reasonable grounds to believe that they were in immediate peril of grievous bodily harm or death, [...]After considering the totality of the circumstances facing the two police officers, notwithstanding that there was a tragic outcome, the officers were justified in using force that was intended or likely to cause grievous bodily harm or death.

Vann Hubbard was killed after being confronted by the two police officers in relation to a search for a purse snatcher. Video footage captured at the scene clearly showed Vann Hubbard brandishing an X-Acto knife and continuing to advance towards officers who had their weapons raised at him. Something that I have argued on this blog about other issues that is also relevant to the taser issue is that when enacting and enforcing any policy a cost/benefit analysis needs to be conducted and adhered too. As you may be able to tell from my opening comments, I feel the costs do outweigh the benefits that tasers present. Even with that being the case, why are law enforcement officers not doing a better job of demonstrating those benefits? My understanding of the deployment of tasers is that they are to be used to replace guns in situations they may have been used in before the development of the taser. This seems like it was one the more appropriate scenarios where deploying a taser would have been reasonable. Why was that not the case here? Isn’t this exactly the type of scenario that tasers were designed for?

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Senate Chamber, Centre Block, Parliament Hill, Ottawa, Canada (photo by Montrealais, used under Creative Commons Attribution and ShareAlike license)

In my haste to post on the prorogation of parliament, I completely forgot to mention one of the more tangible reasons for Mr. Harper to do so; Senate appointments. As I understand it, (mostly by way of Kady O’Malley) with parliament not in session, the Prime Minister will be able to appoint at least 5 new senators and possibly as many as 13 depending on his willingness to get out the old parliamentary playbook again. Five new Conservative senators would give them a plurality in the upper house (did you know that there are still 2 PC Senators?) along with more bargaining power on the allotment of Senate committee seats. If Harper invokes Section 26 of the Constitution Act (only previously successfully done by Brian Mulroney to allow passage of the bill that created the GST) then he could appoint 8 additional Senators to the 5 seats that are currently unoccupied, thus giving the Conservative Party an outright majority with 59 seats out of a total of 113 (there are 105 ‘regular’ seats with Section 26 allowing the temporary addition of 8 Senators, with attrition then being in effect until the Senate returns to the ‘normal’ level of 105 seats through retirements.)

This benefit is by far the most likely prize for the PM; shutting down the House to continued criticism on the handling of the transfer of  Afghan detainees and delivering a budget clean of opposition injections when Parliament reopens are ancillary bonuses to being able to get legislation that has cleared the House through the Senate unmarred by those lefty Liberals and NDP’ers (don’t forget the rump PC’ers!)

This puts me in an interesting position; while I don’t agree with the means that Harper is using, I can sympathize with the ends he is trying to reach. As one who spends far too much time enveloped in US politics, I have developed a healthy fear of an overly powerful Senate. Now obviously the two bodies are very different but as time goes by it increasingly seems that the Canadian Senate is also becoming a place for legislation passed by our elected representatives to go to die. My wikipedia tells me that “[...]as a matter of practice and custom, the Commons is by far the dominant chamber. Although the approval of both houses is necessary for legislation, the Senate rarely rejects bills passed by the directly elected Commons.” I need to do some more looking to qualify my feeling that the qualifier ‘rarely’ is becoming less appropriate as time goes by, but I certainly do feel that is the case. If any readers have info that supports or refutes that feeling it would be much appreciated. In my own humble (am I allowed to add considered?) opinion, Senate reform is something both the US and Canada need (the US much more so than Canada, but why shouldn’t we get ahead of a growing problem ourselves?)

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