By Emmett Macfarlane - Friday, January 11, 2013 - 0 Comments
A debate about the role of the David Johnston may seem arcane, but it’s also revealing
The politics surrounding the Idle No More movement were never going to be neat and tidy.
First, non-aboriginal Canadians have an embarrassing lack of understanding of the history of the relationship between First Nations and “the Crown.” When native leaders speak of a “nation-to-nation” relationship they are speaking to a history of settler-indigenous relations that were expressly predicated on the notion that two sovereigns were reaching agreements via treaty.
There is a strong, legitimate argument to be made that the foundation of Canadian federalism rests on a federal relationship between the Crown (first the British Crown, then the distinct Canadian Crown) and aboriginals, and that self government for First Nations constitutes another “order of government,” much like the federal and provincial orders of government already familiar to most grade schoolers.
Understood through federalism, the “nation-to-nation” conception shouldn’t be so scary to non-aboriginal Canadians because–despite how some appear to interpret it–it doesn’t mean indigenous nations are their own independent countries. Instead, it means we recognize aboriginal sovereignty in the sense that they are owed the rights that flow from historical treaties as recognized by section 35 of the 1982 Constitution Act. This fact was recognized by the Royal Commission on Aboriginal Peoples in 1996, and is something which many of the aboriginal activists behind Idle No More support. Continue…
By Emmett Macfarlane - Thursday, December 20, 2012 at 1:43 PM - 0 Comments
Balancing rules are akin to parking a tank on one side of a seesaw, writes Emmett Macfarlane
Ask observers to sum up Beverley McLachlin’s reign as chief justice of the Supreme Court of Canada and you’ll hear a lot about consensus building. Her modus operandi in difficult Charter of Rights cases has usually consisted of avoiding one-sided proclamations of principle in favour of meting out compromise and getting her colleagues to join her on a moderate, often minimalist, judicial path. Continue…
By Emmett Macfarlane - Monday, December 17, 2012 at 1:16 PM - 0 Comments
Supreme Court maintains cautious balance between national security concerns and individual rights
A set of Supreme Court of Canada rulings last Friday upholding anti-terrorism provisions of the Criminal Code came as little surprise to those familiar with the court’s post-9/11 national security decisions.
The court, like its counterparts in many Western democracies, has faced the central challenge of balancing national security concerns with individual rights. Civil libertarians have been concerned that anti-terror laws are constructed in a way that infringes due process, violates privacy rights and leads to racial profiling.
The Canadian court’s record in national security cases can be summarized as cautious. Its decisions have been imbued with a vigilant rhetoric about rights but also a general prudence about the legitimate policy objectives at stake.
Just four months after 9/11, a unanimous Court ruled that deporting suspected terrorists to countries where they could face torture was unconstitutional, while at the same time articulating a broadly deferential approach to ministerial determinations of the likelihood of torture and (disturbingly) leaving the door open to “exceptional circumstances” where deportation to torture might be justified.
In 2004, a majority of the court upheld provisions of the Anti-Terrorism Act that provided for investigative hearings, which granted judges the power to compel a person who has information to appear before them and answer questions. The justices determined that there were appropriate safeguards (immunity protections and the preservation of the right against self-incrimination) to allow the provisions to stand.
Three years later, the court unanimously struck down particular aspects of the security certificates regime that allow for foreign nationals or permanent residents to be indefinitely detained. The law had prevented detainees from knowing the case against them, thus impairing their right to a fair hearing. The justices gave Parliament a year to craft new provisions to remedy the infringement.
The court will be revisiting the security certificates regime in the Mohamed Harkat case next year, and it will be interesting to see how it deals with the fundamental problem it avoided addressing in the 2007 case: individuals believed to be security threats are detained or have conditions imposed on their freedom indefinitely, without criminal charges being brought forward, but they also can’t be deported because they would likely face torture. It is a seemingly intractable rights conundrum generated by our respect for rights.
The justices have also had to deal with the Canadian government’s role in the detention of Omar Khadr at Guantanamo Bay. In 2008 the court unanimously ruled the charter applied to the conduct of Canadian officials, ordering the disclosure of documents related to CSIS interviews with the teenager conducted in 2003.
Two years later, the court ruled that Khadr’s charter rights were violated by his continued detention, but stopped short of ordering the government to seek his repatriation. I have criticized this remedial deference elsewhere.
Almost all of these decisions have featured a unanimous court. Further, the unanimous decisions were either written by “The Court” – a convention of authorship often reserved for the most important cases – or by the chief justice. That last week’s decisions were penned by Chief Justice McLachlin with unanimous backing stands as an important continuation of that trend (and it comes at a time when the chief has been in dissent in a string of cases in other areas of law).
One of the major issues the court faced in Friday’s cases was whether the definition of terrorism, which states that a terrorist activity must be an act or omission committed in whole or in part “for a political, religious or ideological purpose, objective or cause” violates freedom of expression, religion and assembly under section 2 of the Charter of Rights. The appellants argued that this “motive clause” produces a “chilling effect,” effectively criminalizing the expression of beliefs and opinions.
McLachlin was fairly blunt in her assessment of this claim, noting that violence or the threat of violence are not protected forms of expression. Reading the anti-terror provisions in context and in a manner consistent with their purpose, the court determined its focus is on prohibiting violent acts. Further, as the chief justice points out, the anti-terror sections of the code “expressly declares that “terrorist activity” within the meaning of the Criminal Code does not include the non-violent expression of a political, religious or ideological thought, belief or opinion.”
The chief justice also took pains to address concerns about racial or religious profiling:
“Criminal liability should not be based on a person’s political, religious or ideological views. Police should not target people as potential suspects solely because they hold or express particular views. Nor should the justice system employ improper stereotyping as a tool in legislation, investigation or prosecution. In the present case, the impugned provision is clearly drafted in a manner respectful of diversity, as it allows for the non-violent expression of political, religious or ideological views. It raises no concerns with respect to improper stereotyping.”
It was a relatively easy case for the Supreme Court. Read in isolation, the “motive clause” appears troubling on the surface. But the justices placed the clause in the context of the Criminal Code’s anti-terror provisions, preserving the legitimate objectives of the law while giving a rhetorical nod to the rights concerns at issue.
Not all cases will be so straightforward. With the Harkat case landing on its doorstep, it will be interesting to see if the Court can maintain its cautious balance.
Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. You can follow him on Twitter @EmmMacfarlane
By Emmett Macfarlane - Friday, October 26, 2012 at 4:25 PM - 0 Comments
Emmett McFarlane: ‘The closer I read today’s judgment, the less convincing I find the minority’s logic’
As is true of almost all Supreme Court of Canada cases, no one had more at stake in today’s ruling on the 2011 Etobicoke Centre election than the litigants, Liberal incumbent Borys Wrzesnewskyj and Conservative Ted Opitz, who has sat as the riding’s MP after winning by 26 votes in a contest apparently plagued by irregularities.
As with most Supreme Court cases, however, the even more fundamental concern was how the judges would set out standards by which to assess relevant issues in the future: how should we determine whether “irregularities” affected the outcome and how should we balance the concern for fair elections with the need to ensure all eligible citizens can vote? Unfortunately, the seven judges split over those questions in a 4-3 decision overturning a lower court judgment that annulled enough votes to order a new byelection.
By Emmett Macfarlane - Wednesday, May 23, 2012 at 11:09 AM - 0 Comments
There is no shortage of finger-pointing on either side
Reasoned debate is off the table. The student protesters and the Charest government are sharply at odds – in fact, they despise each other – but they’ve collaborated in one respect: each side has acted to ensure that rather than a robust public discussion about how to fund the province’s universities we get an ugly, protracted battle about the right to protest.
Why has the situation deteriorated so miserably? There is no shortage of finger-pointing on either side.
From the government’s perspective, too many protesters engaged in unacceptable tactics, including blocking non-protesting students from attending classes, vandalism, intimidation and violence. Some critics assert that the peaceful majority failed to condemn, in strong enough words, the hooliganism of those in their midst. Then, last week, classes on one campus were literally invaded, in defiance of court injunctions.
From the protesters’ perspective, the government has been obstinate, initially refusing to meet with student groups and then offering a fishy-looking compromise they quickly and roundly rejected. Peaceful, legitimate protests were often broken up by police. Then the government passed a law which, as I wrote here a few days ago, criminalizes peaceful protest in ways that are likely unconstitutional.
It is this latest decision by the Charest government that has guaranteed consecutive nights of tension, violence and arrests for the foreseeable future. By passing, in hurried and thoughtless fashion, a bill that casts its net so widely, that contains vague provisions and harsh penalties, and that does next to nothing to address the real lawlessness that supposedly necessitated it, the government has legitimated the sense of victimhood that so thoroughly saturates the rhetoric adopted by student leaders.
If much of the blame falls to the government for exacerbating the situation, the protesters – especially the student leaders – are by no means exonerated. That their response to unacceptable legislation was to label it a declaration of war was no heat-of-the-moment exaggeration. Well before the Charest government crossed the line, the movement had declared itself the “Quebec Spring,” with protesters likening themselves to revolutionaries battling a totalitarian state.
It is this mindset that impoverishes our political discourse. It is emblematic of a shift away from policy debate, political compromise and democratic deliberation. It is an attitude that infects people of all political persuasions, although it tends to be more intense among the less moderate on either side.
Some of the protesters’ critics have dismissed the entire movement as representative of a “culture of entitlement.” I think this is problematic, largely because it ignores the reasons and justifications for their legitimate position (even if I happen to disagree with them). There should be room for the policy debate, for the expression of legitimate concerns about access, equality and universality with respect to post-secondary education.
The real problem is the increasing tendency to replace policy discussion and political debate with the invocation of rights. Invoking rights is the equivalent of playing a trump card. It leaves no room for compromise. It denies the validity of other perspectives or alternatives. It reduces political discourse to the making of demands. It subjugates other values, policy ideas or arguments about the distribution of resources. It risks replacing logic and deliberation with emotion and threats.
Now, lest anyone think I’m arguing otherwise, let me state the obvious: fundamental rights are imperative for any functioning democracy. More specifically, the right to free expression and free assembly (including the right to protest) must be fiercely protected.
That said, not everything is a right. In the face of a bylaw regulating unkempt lawns, for example, it would be incorrect to claim one has a “right” to let his or her grass grow three feet tall.
Even more significantly, the fundamental rights we do enjoy also come with limits. This is a fact which almost never emerges in debates about rights. My own research has demonstrated, for example, that media coverage of Supreme Court of Canada decisions concerning the Charter of Rights often ignores the extensive analysis the Court engages in about whether rights limitations are reasonable under the law. The very first section of the Charter is a statement that the rights within are subject to reasonable limits and limitations analysis is often the core feature of Charter cases.
The problem is not that Quebec’s student protesters have asserted the right to protest. The problem is their rhetoric and actions are premised on the notion that a tuition increase constitutes an unreasonable violation of their fundamental rights. They believe their concerns about accessibility and universality override other concerns, like sustainability or quality of education.
Many of those who support the student protests will find this argument unpersuasive. They’ve pointed to the Quebec Charter of Human Rights, which includes free public education under its social and economic rights, conveniently ignoring the language of the section (“to the extent and according to the standards provided by law”).
More generally, critics’ response to my argument that the debate should not be about rights often amounts to “of course it should, unless you don’t believe in social justice.” The problem with social justice, like rights-based arguments, is that everyone favours it but have legitimate disagreements about what counts as social justice. For example, proponents of the tuition increase have pointed out that rather than functioning as a progressive policy, subsidizing tuition is in fact a regressive policy that disproportionately benefits the middle and upper classes.
Unfortunately, that policy debate has been taken off the table. Thanks in part to a foolish law passed by a government that has bungled its response to the protests from the beginning, the rights narrative dominates. And look at how productive it has been.
Emmett Macfarlane is a political scientist at the University of Victoria. You can follow him on Twitter: @EmmMacfarlane
By Emmett Macfarlane - Saturday, May 19, 2012 at 9:27 AM - 0 Comments
If you’ve listened to some of the commentary about Bill 78, emergency legislation purportedly designed to deal with the out-of-control student protests in Quebec, you’d assume the government has thrown a match onto a powder keg.
Some may have hoped that in the midst of its massive, ongoing failure to deal with the protests these past few months, the Charest government might finally turn the corner by passing a law to settle things down. This was sadly – though somehow not surprisingly – optimistic. Apparently no one knows how to sour a lemon like Jean Charest.
Legal experts and critics have pounced on the bill to declare, with all the subtlety of a window-smashing tuition-phobe, that it represents “mass repression” and constitutes “the worst law since the War Measures Act.” One student leader declared the bill “an act of war.” Such rhetoric is about as helpful as smoke bombs in a metro station.
Don’t get me wrong, there are some obvious Charter of Rights problems with this law. One of the worst provisions, which would have treated as guilty anyone who by “omission” or “encouragement” helps or induces a person to contravene elements of the bill, has reportedly been removed.
Another section requires anyone organizing a demonstration of more than 10 people (now amended to more than 50) in a “venue accessible to the public” to report the date, time, duration, and venue to the police at least eight hours ahead of time.
As Andrew Coyne has pointed out on Twitter, many other jurisdictions in the rest of Canada, the United States and Europe have similar reporting requirements. But these often apply to events like planned marches on public streets. Canadian courts are unlikely to find the very broad language here acceptable. Not all public demonstrations are public disruptions, nor are all publicly accessible spaces equal: it may be a reasonable restriction on freedom of assembly to require reporting and impose other limits on street protests. Imposing the same limits on demonstrations in parks or empty fields may not meet the threshold of reasonableness.
Many commentators have also expressed displeasure at the harsh fines in the bill but there’s no reason to believe the penalties themselves lack constitutionality.
Does the bill, even after amendments, overreach? Possibly. The language is too vague in some places, and a reverse-onus clause in the section dealing with the civil liability of student groups and institutions might be a problem. Does the bill compare to the War Measures Act? Not even close.
But in several important respects, the potential Charter issues aren’t the main reason this bill represents a major failure on the part of the Charest government.
First, the bill does nothing to address the lawlessness that has characterized tactics used by certain elements of the protest movement. All of these activities – flagrant defiance of court injunctions, violence, vandalism, intimidation and assault – were already illegal. The problem up until now has been a lack of enforcement, not a lack of legislation.
Second, by casting its net so wide, the bill threatens to criminalize the largely peaceful activities of a majority of the protesters. Given the current climate, this is a bad idea.
Third, the bill cancels (okay, technically it postpones) remaining classes. For people who blandly titled a bill “An Act to enable students to receive instruction from the postsecondary institutions they attend,” I think the policy geniuses in Quebec City have an inappropriate flair for irony.
Finally, the bill encourages the protesters, media and critics to continue to frame the story as the Quebec state versus the right to protest. Such a narrative provides only a partial picture of the debate and of the rights that have been trampled during this saga. The majority of students in Quebec have not joined the protests; rather, they have sought to continue their classes. They have that right, or at least they did, until the government of Quebec failed to protect it
Emmett Macfarlane is a political scientist at the University of Victoria. You can follow him on Twitter @EmmMacfarlane
By Emmett Macfarlane - Thursday, January 12, 2012 at 6:56 PM - 0 Comments
Why federal lawyers are wrong to argue same-sex marriages by non-residents aren’t valid
Today’s news that government lawyers are arguing same-sex marriages performed in Canada are not valid if the couple resides in a jurisdiction that doesn’t recognize them has caused considerable controversy. It’s a case that pits established equality rights against the intricacies of Canadian family law and principles of international comity (i.e. recognizing other countries’ laws).
The legal issues involved are complex. While there is no residency requirement to get married in Canada, there is one for divorce (to get a divorce you must have lived in Canada for a year). For that reason the ability of non-resident, same-sex partners who get married in Canada to later obtain a divorce has been up in the air.
The difference here is that government lawyers do not simply want to deny a divorce because the couple does not meet the residency requirement. Instead, they argued that because Florida and the United Kingdom (the jurisdictions the couple comes from) do not recognize same-sex marriage, their marriage in Canada was never valid in the first place. Continue…
By Emmett Macfarlane - Wednesday, November 23, 2011 at 8:57 PM - 76 Comments
The fear that lifting the prohibition of polygamy will result in a surge of polygamous marriages is absurd
Today’s decision by the British Columbia Supreme Court upholding the constitutionality of Canada’s anti-polygamy law serves as a quintessential example of the difficulties inherent in having courts resolve fundamentally moral issues implicated by the Charter of Rights.
Justice Robert Bauman’s judgment is an exhausting and comprehensive display of philosophy, social scientific inquiry, history, religious and cultural studies. It serves to demonstrate, yet again, that judges are experts in law and tend not to be very good at any of these other things.
By Emmett Macfarlane - Thursday, October 20, 2011 at 10:56 AM - 21 Comments
Wednesday’s ad hoc committee hearing turned into a farce
For advocates of greater transparency and democratic accountability in the Supreme Court appointments process, Wednesday afternoon’s ad hoc committee hearing—which gave members of Parliament an opportunity to interview the prime minister’s two nominees—was rather difficult to watch.
The questions ranged from vacuous puffery, such as asking Justices Andromache Karakatsanis and Michael Moldaver to name their personal heroes, to glib and disrespectful challenges to Moldaver regarding his inability to speak French. The broader question of whether Supreme Court justices ought to have proficiency in both of Canada’s official languages is most definitely a legitimate one. And it was certainly not out of bounds for members to ask Justice Moldaver about the importance of language capacity and his intentions to learn French. (I’ll set aside for now the debate about whether we should make bilingualism a prerequisite for appointment to the Court). Continue…
By Emmett Macfarlane - Friday, September 30, 2011 at 2:37 PM - 6 Comments
Those who favour the reform of Canada’s drug laws should be pleased
“Insite saves lives. Its benefits have been proven.” With that blunt statement, the Supreme Court of Canada cuts to the heart of the matter: by denying Vancouver’s safe-injection facility, Insite, a further exemption from laws prohibiting drug possession, the federal government acts contrary to the Charter of Rights and Freedoms.
The ruling stands as a razor-sharp rebuke of the federal government’s rather fragile position, at least as in terms of the insurmountable evidence that Insite averts deaths from overdose, helps prevent the spread of disease, and facilitates treatment and recovery. The Court’s decision also stands as a potential landmark in Canadian constitutional law, having considerable implications for the obligations the Charter increasingly imposes on government.
Before delving into these two important elements of the decision, it is worth noting what the Court does not do. Continue…