Why the Supreme Court didn’t weigh in on fetal rights in R. v. Levkovic

By Charlie Gillis - Friday, May 3, 2013 at 2:09 PM - 0 Comments

Sean Kilpatrick/CP

Surely we can agree that stuffing the body of a baby into a bag and leaving it on an apartment balcony for a building superintendent to find is an abominable act. And that it shouldn’t much matter—legally or morally—whether the child died after, during or just before birth.

Or should it?

That was the question before the Supreme Court of Canada in R. v. Levkovic, the latest gut-wrencher to emerge from the legal vacuum left when Canada’s abortion law was struck down in 1988.

The accused, a former stripper then living in Mississauga, Ont., was charged under Sec. 243 of the Criminal Code, which says:

Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. Continue…

Supreme Court rules against B.C. doctor in botched birth case

By The Canadian Press - Thursday, April 4, 2013 at 1:41 PM - 0 Comments

OTTAWA – The Supreme Court of Canada has restored a finding against a British Columbia doctor after a botched delivery that left a newborn with permanent brain damage.

The justices ruled 7-0 against obstetrician William G. Johnston in an appeal on behalf of the child, Cassidy Ediger.

A trial judge awarded the Ediger family $3.2 million after determining the doctor failed to ensure that back-up surgical staff would be immediately available to deliver the baby by Caesarean section if a forceps procedure failed.

The British Columbia Court of Appeal overturned the ruling in favour of the doctor, but the Supreme Court has now reversed that decision.

Cross-appeals about the amount of damages were referred back to the B.C. appeal court for consideration.

Cassidy, now 15, is fed through a tube and confined to a wheelchair, unable to speak, and has a life expectancy of just 38 years.

Flaky limits on free speech

By Colby Cosh - Tuesday, March 12, 2013 at 7:00 PM - 0 Comments

Chris Wattie/Reuters

Free-speech advocates have been waxing wroth all week over the Supreme Court’s long-awaited ruling in the case of Bill Whatcott, an itinerant street-corner politician who fancies himself a one-man crusade against the gay conspiracy to infiltrate schools, media and Old-Testament-God-knows-what. University of Saskatchewan law professor Michael Plaxton took to the Globe and Mail to accuse the court of “all but strangling” some kinds of religious speech, and the paper’s editorial voice, cranky “Junius,” called the unanimous decision “too vague.” Andrew Coyne’s analysis for Postmedia was punctuated with exclamations like, “I cannot quite believe I am reading these words.” Religious and conservative bloggers even spoke of “the death of free speech in Canada.”

The ruling was appalling in a number of ways, most notably in its dismissal of any possibility of a truth defence against human rights commissions who hunt “hate speech.” The court specifically insists that true statements arranged in certain ways can be officially “hateful,” conceding a total lack of interest in truth and basically handing its banner over to the commissions’ targets. For liberals who share the goals of these commissions, this is a moral disaster that can only multiply Bill Whatcotts ad infinitum. People of the Whatcott type already believe themselves to be in special possession of suppressed facts, and now the court has said explicitly that spreading falsehoods is no part of their offence.

But since we columnists are in the business of telling truth, whatever a court thinks, it ought to be admitted that, dead or alive, free speech in Canada was never in such good shape. The Supreme Court’s decision is an elaborate partial rescue of standing precedent; the constitutionality of hate policing by provincial commissions was established many years ago, and the unpleasant surprise is only that it wasn’t killed on this occasion.

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Could this be the end of ‘Mr. Big’ sting operations?

By Charlie Gillis - Thursday, February 28, 2013 at 4:50 PM - 0 Comments

Nelson Lloyd Hart being escorted to court in Gander, Nfld., on June 13, 2005. (Scott Cook/CP)

If you follow the crime news, you’re probably familiar with so-called “Mr. Big” operations, in which undercover cops lure a suspect into a phony criminal organization, then get the unwitting naïf to confess to past crimes by demanding he establish his bad-guy bona fides.

The RCMP have become uncommonly fond of these charades despite complaints they amount to entrapment. Now their legality is about to be put to the test: the Supreme Court announced today it will hear the case of Nelson Lloyd Hart, a Newfoundland man who confessed during a Mr. Big sting to drowning his twin three-year-old daughters, Karen and Krista.

The winding and tragic Hart saga was told in magnificent detail by my colleague Nick Köhler back in 2006, and highlights the problems with this method. Hart had a Grade 5 education, a gambling problem and was on social assistance at the time his girls died in Gander Lake. He told police at the time he’d had an epileptic seizure that day—that he didn’t know how the girls ended up in the water.

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Whatcott fallout: the Supreme Court upholds protections we don’t need

By Charlie Gillis - Wednesday, February 27, 2013 at 1:47 PM - 0 Comments

Chris Wattie/Reuters

The much-anticipated Whatcott decision has landed, and to some surprise, the Supreme Court of Canada shied from the chance to get human rights commissions out of the business of judging speech.

You can read the decision in its entirety here. In a nutshell, the court struck down a phrase in Saskatchewan’s human rights code banning material that “ridicules, belittles or otherwise affronts the dignity of any person or class of persons,” while upholding the section of prohibiting material that exposes members of identifiable groups to hatred. Those offended can still seek remedy from the province’s human rights commission.

“The protection of vulnerable groups from the harmful effect emanating from hate speech is of such importance as to justify the minimal infringement of expression,” the judges said in their unanimous decision.

Maybe this compromise was inevitable. To get human rights bodies out of the business of supervising speech, the high court would have to overturn its 1990 Taylor decision, which validated the jurisdiction of human rights commissions over speech, and set down a legal test of what constitutes hatred. That’s a lot to ask of any court.

But civil libertarians had hoped the SCC would do just that. Back in ’90, the current Chief Justice, Beverly McLachlin, had written a dissent to Taylor voicing concern that the law could interfere with free expression. She asked pointed questions during the Whatcott hearing about the vagueness of Saskatchewan’s law. There was reason to think she and her bench-mates might make a move.

To me, their decision to stand-pat represents a missed opportunity to erect robust legal protections around a bedrock Canadian value. And yes, my employer has a stake in this. But if we learned anything from the Maclean’s-Ezra Levant human-rights fiascos, it’s that the rights process is too blunt, too one-sided an instrument to deal with such a sensitive issue as speech.

A couple of other thoughts: all eyes should now turn to the provinces that have anti-hate speech provisions in their human rights codes, some of whose leaders have echoed the above-stated qualms. They’ve been sitting on the sidelines to see whether Whatcott would give them the cover needed to do the right thing, and now the onus is on them.

Here’s what Alison Redford told the Rocky Mountain Civil Liberties Association about the relevant section of Alberta’s code when she was running for the provincial PC leadership:

“I want to amend and fine-tune the existing legislation, after consultations with stakeholders, to better define and protect free speech in light of challenges to the statute in recent years. Freedom of expression must be shielded, and Section 3 of the Alberta Human Rights Act should be repealed.”

Over to you, Premier. Need a roadmap?

The decision also reminds me of a conversation I had in the thick of the dispute between Maclean’s and Islamic groups that complained about the writings of Mark Steyn. I was talking to Wayne Sumner, a philosophy professor at the University of Toronto who studies hate speech, and I had raised the operative question: in the Internet era, can we get rid of anti-hate speech provisions in human rights law without giving oxygen to the hard-core hate-mongers, who are undeniably among us?

Sumner was unequivocal:

“The kinds of groups who engage in this sort of nonsense in Canada are so marginal, and regarded as so ridiculous by most people, that it’s hard to see how they have any impact at all. Did the ridiculous things David Ahenakew said in public about Jews running the world actually encourage any acts of anti-Semitism in Canada? Or did we just all laugh at them? So I think there’s a problem with the underlying justification of the law.”

But wait. Isn’t world history replete with examples of hate speech fueling violence and discrimination? Weimar Germany? Rwanda?

The professor’s answer:

“It’s important that we’re speaking specifically about Canada. If I thought there was an enormous reservoir of prejudice bubbling beneath the surface, just waiting to be released, I would think differently. But I don’t think that’s where multicultural Canada is at. The references to history don’t tell us much about our own situation.”

In other words, Canadian tolerance can stand the stress-test. It’s a bedrock value that—freely expressed—offers a better antidote to hatred than any regulatory body staffed by appointees. Time for governments to give it a vote of confidence.

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Abortion debate still rages 25 years after historic Supreme Court ruling

By The Canadian Press - Monday, January 28, 2013 at 5:15 AM - 0 Comments

OTTAWA – It’s been 25 years to the day since the Supreme Court of Canada ruled that criminalizing abortion violated a woman’s charter rights.

In many ways, it feels like it was just yesterday.

The question, which pits the rights of a woman against those of her unborn child, is as polarizing as it was in 1988, when five of the seven high court judges involved declared Canada’s Criminal Code provisions restricting access to abortion a violation of the Charter of Rights and Freedoms.

Abortion rights advocates across the country are planning modest celebrations to mark today’s anniversary. On the other hand, those long opposed to the decision known as R. vs. Morgentaler consider it a sombre occasion — one that reaffirms their resolve to one day see the ruling overturned.

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Re: The SCOC on ‘Lola and Eric’

By Martin Patriquin - Friday, January 25, 2013 at 12:52 PM - 0 Comments

The Supreme Court of Canada ruled on the “Lola and Eric” case today, upholding Quebec’s Civil Code as it applies to married and unmarried couples in the province. Quebec, home to the largest percentage of unmarried couples in the country, affords fewer rights to these couples. Unlike in, say, Ontario, the amount of alimony a spouse can receive depends on whether the couple was married. “Unmarried couples in Quebec owe each other nothing as a result of their relationship,” McGill family law professor Robert Leckey told Maclean’s in 2009. “In other provinces, you live together for a stated period and there’s a duty to support your partner, as there is for married people. In Quebec, an unmarried couple could be together for 40 years, but the law still sees them as two strangers who happen to share a home.”

The case pitted one of Quebec’s richest entrepreneurs and businessmen against his ex-girlfriend; the two, who can’t be named, were “Lola and Eric” by the press, and the ensuing media attention was only heightened by Lola’s lead lawyer, the potty-mouth firebrand Anne-France Goldwater.

Maclean’s wrote extensively about the case in 2009. Read it here.

… and here’s the CP report on the ruling.

Supreme Court to rule today on wearing a niqab can be worn while testifying

By The Canadian Press - Thursday, December 20, 2012 at 6:21 AM - 0 Comments

OTTAWA – The Supreme Court of Canada rules this morning on whether a Muslim woman can wear a religious veil known as a niqab while testifying against two men she claims sexually assaulted her when she was a child.

Due to a publication ban, the Toronto woman can only be identified as N.S.

The woman accuses two relatives of sexually assaulting her over a four-year period that ended when she reached the age of 10.

The two accused claim the Charter of Rights and Freedoms allows them to confront their accuser and observe her facial expressions as she testifies.

But the woman’s lawyers say facial expressions can be misleading, and add that Islamic sexual assault victims will be leery about going to police if they’re barred from wearing a niqab while testifying in court.

In a preliminary hearing in 2008, N.S. said she cannot show her face to any men who are not close relatives. When the judge ordered her to remove the niqab, she refused. The case made its way through the Ontario court system and was heard a year ago by the Supreme Court of Canada.

Expect privacy at work? You’re not unreasonable, says Supreme Court

By Jesse Brown - Thursday, November 8, 2012 at 4:16 PM - 0 Comments

By now, you hopefully know that your privacy rights take a beating when you go to work.  Employers routinely collect and read your emails, monitor your websurfing, track your presence through security dongles and watch you via CCTV cameras.  As the logic goes: their workplace, their gear, their company, their rules.  Your privacy? Forget it.

Not so fast, says the Supreme Court of Canada in a recent ruling.  Our Charter rights to privacy hinge on the concept of “reasonable expectation.” Get naked at home, and it’s reasonable to expect that your neighbour isn’t sitting in a tree peeping in on you.  Get naked in your backyard, and don’t be shocked if you’re spotted.

It has now been deemed reasonable for Canadians to expect some degree of privacy when using workplace computer gear.  If your office allows you to use your work phone or laptop for personal applications, then your rights to privacy with those apps may remain intact.

The decision went even further: even if your employer explicitly forbids personal use of their machines, employees still retain some right to privacy, albeit a “diminished” one.

From the ruling:

 Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical, and personal situations”…This sort of private information falls at the very heart of the “biographical core” protected by s. 8 of the Charter.

So, does this mean that your boss is breaking the law when she checks your browser history?  Not at all.  The ruling recognizes an employer’s right to monitor employee behaviour on work machines in order to look out for “prohibited” usage.

It might sound confusing and contradictory, and it is.  The Court’s point is that each case must be considered individually, and that privacy is not something that Canadians automatically and completely surrender just by showing up to work.  Without setting any specific precedent, the case is considered to establish some principles that introduce ambiguity into the default assumption many employers make: that they have carte blanche when it comes to employee surveillance.  Expect it to be cited in many a forthcoming lawsuit.

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Incidentally, the case that forced this decision is an icky and interesting one.   A Sudbury computer science teacher, tasked with monitoring (spying on) students’ uses of school computers, allegedly intercepted naked self-shots sent by an underage girl to another student.

Then, a school I.T. technician, tasked with monitoring (spying on) teachers’ use of school computers,  remotely searched the teachers’ laptop and discovered the image in a folder labeled “My Documents.” He turned it over to the principal, who in turn called the cops, who seized and searched the teacher’s laptop, but didn’t bother to get a warrant.

The Supreme Court ruling deemed the search a Charter violation, but also ruled that the evidence could be admitted — but in a new trial.

Follow Jesse Brown on Twitter @JesseBrown

Supreme Court makes the right call on election — but only just

By Emmett Macfarlane - Friday, October 26, 2012 at 4:25 PM - 0 Comments

Sean Kilpatrick/CP

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.

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Supreme Court set to rule on duty to disclose HIV to sex partners

By The Canadian Press - Friday, October 5, 2012 at 5:25 AM - 0 Comments

OTTAWA – The Supreme Court of Canada will issue a ruling today on whether it is a crime for people with extremely low levels of HIV to withhold that fact from their sex partners.

The Supreme Court will be ruling on two separate cases, from Manitoba and Quebec, essentially updating its landmark 1998 ruling on the subject.

Some critics argue the old ruling is outdated because of medical advances since then in treating the virus that causes AIDS.

The court ruled 14 years ago that people with HIV must inform their partners of their condition, or face a charge of aggravated sexual assault, which carries a maximum life sentence.

Interveners in the case say advances in HIV therapy have resulted in people able to live long lives with minuscule levels of virus that are almost impossible to transmit.

Prosecutors from both provinces have argued that HIV carriers have a duty to inform their partners regardless of the risk, so they can make an informed decision.

Vancouver sex workers can challenge prostitution laws: high court

By The Canadian Press - Friday, September 21, 2012 at 3:49 PM - 0 Comments

OTTAWA – The Supreme Court of Canada has ruled that Vancouver sex workers can proceed with a legal challenge of the country’s prostitution laws.

The 9-0 ruling dismisses a federal government appeal against the Downtown Eastside Sex Workers United Against Violence Society and former sex worker Sheryl Kiselbach.

The government argued that since no prostitution charges had been laid, the society and Kiselbach lacked the legal standing to pursue the case.

A British Columbia judge agreed with the government, but the provincial court of appeal said the group has public-interest standing and could proceed.

The high court justices today agreed with the appeal court.

The case may be moot, however, since an Ontario Court of Appeal ruling struck down some of the same laws under challenge in the Vancouver case.

The federal government is appealing the Ontario ruling to the Supreme Court of Canada.

Harper v. The Judges

By Andrew Stobo Sniderman - Tuesday, August 21, 2012 at 5:00 AM - 0 Comments

Sean Kilpatrick/CP

Prime Minister Stephen Harper called it “essential.” The judge called it “fundamentally unfair, outrageous, abhorrent and intolerable.” They were both speaking about mandatory minimum jail times for gun-related crimes—Harper when touting the law requiring them, and Justice Anne Molloy of the Ontario Superior Court when she struck it down by uttering the fateful word: unconstitutional.

Harper’s mandatory minimum sentences, presented as evidence of his toughness on crime, are under judicial fire. In February, a man faced three years in jail under the 2008 law, for momentarily posing with his cousin’s illegal gun for a Facebook picture. Justice Molloy called the legislated punishment of automatic jail time “cruel” and “disproportionate.” In July, another accused faced three years for offering to sell a gun he didn’t even possess. In that case Justice Paul Bellefontaine of the Ontario Court of Justice refused to apply the sanction prescribed by law, citing Molloy’s reasoning. Many expect one of these decisions to wind its way up to the Supreme Court, where the Harper government’s crime law will officially go on trial.

The NDP enjoys the title of official Opposition in a time of majority government, but it would seem the Conservatives’ real opponents wear robes and issue decrees. In addition to the rulings on mandatory minimum sentences, judges have delivered the Tories a series of stinging defeats of late. And it’s becoming apparent that in the next few years some of the country’s biggest and most consequential debates, around issues as diverse as euthanasia, refugee detention and brothels, will be fought not in Parliament, but in the courts.

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The courts and Omar Khadr

By Aaron Wherry - Wednesday, August 1, 2012 at 1:27 PM - 0 Comments

Elsewhere on Macleans.ca, Emmett Macfarlane gives the Supreme Court a share of the blame for Omar Khadr’s situation.

Seemingly lost in the controversy surrounding Omar Khadr and the federal government’s ongoing efforts to delay his return to Canada is the culpability of the Supreme Court of Canada in the entire affair … Basing the need for deference on the executive’s prerogative powers over foreign affairs, the Supreme Court decided to leave it to the federal government to determine how best to remedy the Charter breach. This was an unusual – and disturbing – move for a Court that in other contexts has made it clear that the Charter is not worth the paper it is written on without meaningful remedies.

At iPolitics, Stephen Neil considers Mr. Khadr’s chances of winning financial compensation when he returns to Canada.

The Supreme Court is culpable in the Omar Khadr case

By Emmett Macfarlane - Tuesday, July 31, 2012 at 3:39 PM - 0 Comments

Adrian Wyld/CP Images

Emmett Macfarlane is an Assistant Professor of Political Science at the University of Waterloo. You can follow him on Twitter @EmmMacfarlane

Seemingly lost in the controversy surrounding Omar Khadr and the federal government’s ongoing efforts to delay his return to Canada is the culpability of the Supreme Court of Canada in the entire affair.

Back in January 2010, the Court found that Khadr’s Charter rights had been violated by virtue of Canada’s participation in the regime of torture and imprisonment at Guantanamo Bay, Cuba. Despite this finding, though, the Supreme Court overturned Federal Court and Federal Court of Appeal rulings that ordered the government to request Khadr’s immediate return.

Basing the need for deference on the executive’s prerogative powers over foreign affairs, the Supreme Court decided to leave it to the federal government to determine how best to remedy the Charter breach. This was an unusual – and disturbing – move for a Court that in other contexts has made it clear that the Charter is not worth the paper it is written on without meaningful remedies.

Assessing whether the Court made the correct call in Khadr’s case quickly gets complicated because normally I’d be one of the first to applaud the type of deference the Court showed in this case. Providing absolute remedies in instances where a Charter violation has been found can run the risk of unnecessarily limiting the available range of policy options, something that elected governments, with a civil service at their disposal, are in a much better position to assess than courts.

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Harper used to fret about “arbitrary” Charter rulings

By John Geddes - Tuesday, April 17, 2012 at 5:43 PM - 0 Comments

Stephen Harper hasn’t offered up any very detailed comment on his view of the Charter of Rights and Freedoms since he became Prime Minister. But Paul Wells guides us through how we might interpret Harper’s ambivalent remarks on today’s 30^th anniversary of Pierre Trudeau’s landmark contribution to Canada’s constitutional evolution.

For those curious about Harper’s earlier, perhaps less guarded days, and how he might have seen the Charter back then, I can think of two glancing remarks that shed a bit of light on his view of it—neither of them, unfortunately, very definitive. In both cases, he seemed mainly worried about “arbitrary” interpretation of Charter rights by the courts.

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Beaten for a black belt and a deadly delay

By Richard Warnica - Wednesday, March 14, 2012 at 12:56 PM - 0 Comments

British Columbia: The family of a U.S. soldier killed in Iraq is suing a Vancouver-based dating website. Lt. Peter Burks died in 2007. His parents sued Plenty of Fish after his photo appeared in an ad on the site. Burke was engaged to be married when he died and had never used the service being advertised.

Alberta: An Edmonton man is suing his tae kwon do instructor after he suffered what he calls “catastrophic” injuries while being tested for his black belt. In a statement of claim, the man says the instructor punched and kicked him without mercy during the test. He then suffered severe brain trauma that led to a stroke. He’s seeking $500,000 in damages from the instructor and the school.

Ontario: The family of a man who died while waiting for an ambulance during Toronto’s city workers strike in 2009 is suing the city and its emergency services department. Jim Hearst waited more than 35 minutes for help after he suffered a heart attack in his apartment. His family blames the city and its workers for not getting there sooner. They’re seeking $10 million in damages.

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Another year’s federal politics in 12 chapters

By John Geddes - Friday, December 30, 2011 at 2:07 PM - 0 Comments

Stages in the legislative process that make a bill law in the Canadian Parliament; ministers (not including the Prime Minister) on cabinet’s powerful Priorities and Planning committee; former political figures (not including sovereigns or social activists) memorialized in bronze around Parliament Hill—twelve is the number in each of these interesting categories. But for our purposes here, in this second annual stocktaking of the year just ending, it’s the 12 calendar months that matter. Pick just one political story for each page, and 2011’s kaleidoscope might just take a turn from jumbled to intelligible.

January: We glimpsed how Ignatieff thought a leader should look

By the start of 2011, we had long since figured out Stephen Harper’s disciplined style and thought we understood the limits of Jack Layton’s appeal. But Michael Ignatieff had taken over as Liberal leader in an odd way, with no conventional leadership race to bring him into focus. Instead, Ignatieff had been defined for many Canadians by Conservative attack ads. For those who had paid attention to him before politics, his globetrotting-intellectual persona still loomed large.

Then came his Jan. 25, tone-setting address on Parliament Hill to the Liberal caucus, with the media invited in. This was no detached thinker. Sleeves rolled up, Ignatieff ripped through a 15-minute speech in which he mocked Harper, invoked Barack Obama, and answered his own question—“Are we ready to serve the people who put us here?”—with a shouted, “Yes, yes, yes!” Hopeful Liberals saw a fiery campaigner, astute Conservatives a man ripe for ridicule. We didn’t know it then, but this was a clear foreshadowing of the campaign to come.

February: We watched Conservatives smoothly execute a key transition

As an opposition leader and especially as Prime Minister, Harper has shown a remarkable ability to shed and replace chiefs of staff, communications directors, and other key advisors. But the one constant in his electoral machine was the beard and brogue of Doug Finley, his  campaign director. When Finley stepped down at the very end of January as he recovered from colon cancer, the party began a testing transition. Guy Giorno and Jenni Byrne stepped into new roles.

For a lesser partisan machine, the loss of a figure as dominant as the Scottish-born Finley would have been a marked setback. Instead, the transition seemed to go off without a hitch. Spring election speculation continued unabated. As for Finely—who ran Harper’s winning 2006 and 2008 campaigns and was rewarded with a Senate appointment in 2009—Twitter awaited.

March: We marveled as the PM fell, yet defined the moment his way

It was no surprise when the Conservative minority was voted down by the opposition Liberals, NDP and Bloc Québécois on March 25. The House had been an increasingly fractious and angry place. The actual non-confidence vote, only the sixth in Canadian history, found the  government in contempt of Parliament for refusing to supply full cost estimates for fighter jets, crime bills and corporate tax cuts.

Yet Harper largely succeeded in burying those reasons by asserting doggedly that the real issue was the opposition’s refusal to support his government’s budget. “There’s nothing, nothing, in the budget that the opposition could not or should not have supported,” he said. “Thus, the vote today that disappoints me, will, I expect, disappoint Canadians.” His refusal to even minimally acknowledge that the election was triggered by anything other than a clash over economic priorities carried him into the campaign and, arguably, to victory.

April: We absorbed the potential of Layton’s NDP surge in Quebec

The orange wave surged over Quebec so unexpectedly that even senior NDP veterans had difficulty knowing what to make of it. By April 23, when Jack Layton climbed to the podium at Montréal’s Olympia Theatre to address his party’s largest ever campaign rally in the province, the possibility of an NDP breakthrough was widely acknowledged. The Bloc was running scared. The Tories and Liberals were looking elsewhere in the country for any gains.

At the back of the Olympia, Layton’s young Quebec organizers spoke, wide-eyed, of a dozen or so new Quebec seats being within reach. That seemed remarkable enough. Yet had they been able to fully take in the spectacle of Layton podium performance, and the crowd’s reaction, they might have dreamed bigger. Holding his talismanic cane aloft, smiling as only he could, hitting his applause lines like the pro he was, “Bon Jack” embodied an unlikely convergence of long, careful political preparation and recent, inspiring personal determination. You can’t make this stuff up.

May: We experienced Harper’s majority win as an inevitability

It’s an illusion of course, maybe even a delusion, to think anything in politics had to happen the way it did. There are always too many variables. Still, Harper’s May 2 election victory had that it-was-written feel about it. He steadily built toward the moment, from his near miss in 2004, through his two minority wins in 2006 and 2008. The train was rolling toward this destination.

And Harper’s campaign-trail consistency was remarkable. His rallies were a model of methodical planning and error-free execution. He refused to be badgered by media complaints into taking more reporters’ questions or exposing himself to unscripted encounters with voters. He stuck to his key economic message even when Layton’s rise might have unnerved a more skittish campaigner. Election night was full of compelling stories—Bloc and Liberal failures, NDP ascent—but it belonged, in the end, to the Prime Minister.

June:  We shrugged as a political financing experiment was cancelled

On June 6 Finance Minister Jim Flaherty reintroduced his spring federal budget, which was never passed in the rush to an election, with a key twist: Flaherty added a measure to phase out the $2-per-vote subsidy to political parties by 2015-16. The taxpayer subsidy was introduced by the former Liberal government in 2004, to compensate for the curtailing of corporate and union contributions.

The Conservatives’ first attempt to get rid of the subsidy, announced in the fall of 2008, triggered the ill-fated bid by opposition parties to form a coalition and replace Harper’s minority. But with Harper leading a majority, there was no chance of his being thwarted this time. Few Canadians took much notice. And so an attempt to make raising money less central to our politics comes to an end. Constant, clever, insistent fundraising appeals to the party faithful—a Tory strong suit—will be essential to any party’ success for the foreseeable future.

July: We saluted as our troops left a battle zone still in question

When Canadian soldiers moved in large numbers into Afghanistan’s violent southern province of Kandahar in 2006, military and political leaders were unprepared for how much the mission would come to dominate foreign and defence policy. The hard fighting they were soon engaged in was unlike anything Canadians had experienced in decades. Before exit day, 158 Canadian soldiers had been killed in Afghanistan, along with a diplomat, two aid workers, and a journalist.

The last Canadian commander of Task Force Kandahar, Brig.-Gen. Dean Milner, didn’t really want to leave. He would have preferred to stay a bit longer to help the Americans, whose troop surge into the province had put the Taliban on the run and stabilized previously volatile districts. Canadian troops remain in Afghanistan, but mainly engaged in training the Afghan National Army. But the years of fighting changed the place of the military in the Canadian public imagination—and Canadian political calculations.

August: We mourned Jack Layton, moved by what he’d come to mean

The death of the NDP leader on Aug. 22 at just 61 was not entirely surprising. The previous month Layton had announced that he was battling cancer for a second time, his ravaged face and desiccated voice shocking the country. But the way he died was unprecedented. He drafted a farewell letter and organized a public funeral in Toronto, knitting together the personal and political in his final weeks and days in a way that made them indistinguishable.

Layton came at the end to represent, in an era of deep cynicism about politics, an unapologetic zeal for total immersion in public life. All through the spring campaign, struggling back from a broken hip, Layton had exuded his relish for the democratic fray. Facing death, he didn’t shy from explicit partisanship. “Let’s demonstrate in everything we do in the four years before us,” he told the New Democrats in that last letter, “that we are ready to serve our beloved Canada as its next government.”

September: We were reminded by judges that even majorities face setbacks

With Parliament in session again, the Conservatives sitting pretty with their fresh majority, it seemed that nothing could slow the implementation of Stephen Harper’s vision. Then came the Sept. 30 Supreme Court of Canada ruling that the federal government could not shut down Vancouver’s Insite supervised injection clinic for intravenous drug users.

The unanimous 9-0 decision delivered a rebuke to the Conservative position that Insite’s clear track record since 2003 of helping addicts avoid infections and overdose deaths should be trumped by the government’s desire to send a strong anti-drug, law-and-order message. The ruling also validated the pro-Insite positions of the British Columbia provincial and Vancouver municipal governments. For those left disheartened by Harper’s resounding spring victory, the court offered a fall tonic.

October: We witnessed the lasting emotional power of a populist cause

From the time it was implemented in 1995, the federal registry for rifles and shotguns was deeply controversial. In the broadest of strokes, rural gun owners resented it, while urbanites who feared gun crime approved. Opposition gathered steam after a 2002 report from Auditor General Sheila Fraser put estimated the registry tab would climb to $1 billion by 2005.

With hot-button right-wing populist issues like abortion and capital punishment largely off the table in Canadian politics, the long-gun registry took on disproportionate importance for that portion of the Conservative base. Harper extracted maximum political benefit from attacking the registry. On Oct. 25, the bill to eliminate it was finally tabled in the House. A drawn-out, culturally fraught episode in Canadian political life was coming to a bitter close. Even the data in the registry was to be destroyed, so no province or future federal government, not to mention police force, could make use of the information. Few outcomes politics are so categorically one-sided.

November: We took comfort from a Canadian’s prominence in troubled economic times

The Cannes summit of the G20 club of major developed and developing nations was dominated by gloomy, even alarming, news about Europe’s deepening debt crisis. This was the backdrop for the appointment of Mark Carney, the Bank of Canada’s youthful governor, to head a key oversight body called the Financial Stability Board. Never mind what the FSB does—highly technical banking stuff. Pay attention to what Carney represents—solid Canadian economic management.

Carney is a fascinating story in his own right. His assessments of the state of banking regulation, economic policy and its international coordination, are parsed closely by rapt global market players. Beyond his personal qualities, he embodies the new Canadian swagger concerning our sound banks and solid government finances. But can Canada’s political and business leaders build beyond those oft-mentioned fundamentals to more innovative manufacturing and competitive service sectors?

December: We watched a familiar national shame unfold in the hinterland

On the first day of the last month of 2011, the federal government imposed what’s called third-party management on the Northern Ontario reserve community of Attawapiskat. That meant an administrator appointed by Ottawa would run the Cree community of 1,800 on James Bay, where a crisis of abysmal housing began drawing national attention in late November.

It was yet another example—they happen every few years—of a burst of media attention to the plight of an impoverished, remote First Nations village briefly forcing Canadians to contemplate the worst policy failure of successive federal governments. But how to break that desultory cycle? As Attawapiskat took centre stage, the Harper government was quietly introducing legislation to reform band council elections and improve financial transparency. Maybe this incrementalism will help where past grand gestures did little.

On the Supreme Court rejecting a national securities regulator

By John Geddes - Thursday, December 22, 2011 at 10:12 AM - 0 Comments

The key thing to keep in mind about today’s Supreme Court of Canada rejection of the Conservative government’s bid to create a national securities regulator is that the nine judges didn’t say it was a bad policy idea.

Their unanimous opinion, handed down this morning, only said the federal attempt to usurp the longstanding provincial regulation of stock markets and other securities trading is unconstitutional. Finance Minister Jim Flaherty’s proposed law, they say, “overreaches the proper scope” of the federal government’s broad constitutional power to regulate “trade and commerce.”

The court doesn’t doubt—and in fact confirms—that valid reasons for national securities regulation exist. But that’s not the point. Flaherty’s problem is that the provinces, under the Constitution, have jurisdiction over contracts and property matters. They’ve long regulated securities. The federal government failed to make its case that something about trading stocks and bonds and derivatives has changed so fundamentally in recent times that Ottawa must now step in.

“It is not for the court to suggest to the governments of Canada and the provinces the way forward…” the judges delicately say, before going on to suggest just that: “Yet we may appropriately note the growing practice of resolving the complex government problems that arise in federations, not by the bare logic of either/or, but by seeking cooperative solutions that meet the needs of the country as a whole as well as well as its constituent parts.”

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"To be 'open to Quebec' is to insist on a clear majority for secession"

By Aaron Wherry - Tuesday, May 31, 2011 at 12:12 PM - 34 Comments

Liberal MP Stephane Dion counsels Jack Layton.

In its opinion on the secession of Quebec, the Supreme Court of Canada mentioned the words “clear majority” at least 13 times, and also referred to “the strength of a majority.” However, the Court does not encourage us to try setting the threshold of this clear majority in advance: “it will be for the political actors to determine what constitutes ‘a clear majority on a clear question’ in the circumstances under which a future referendum vote may be taken.”

Partisan judges, how the Supreme Court runs our lives—and why it should be an election issue

By Luiza Ch. Savage - Tuesday, April 19, 2011 at 9:00 AM - 68 Comments

Photographs by Andrew Tolson

Philip Slayton is a former law professor and Bay Street lawyer. In 2007, he roiled the legal world with his scorching book, Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession. Now he is taking on the pinnacle of the legal profession with his new volume, A Mighty Judgment: How the Supreme Court of Canada Runs Your Life.

Q: You write, “The Supreme Court of Canada runs our life.” How so?

A: Since the 1982 Charter, fundamental social, economic, and political decisions have been taken by the Supreme Court of Canada: more than by Parliament or by the cabinet or by the prime minister. The court runs the life of every Canadian by deciding fundamental issues that we care a lot about. For example, in the Morgentaler case of 1988, the court struck down Canada’s abortion law and since that time there has been no abortion law at all. We are the only country in the Western world in which that is true. In the Vriend case, the court overrode the express wishes of the government of Alberta, and decided that provincial human rights legislation protected a gay man. The court has also said, for example, that same-sex marriage is okay, and that Quebec cannot secede unilaterally.

Q: Do you think the judges have overstepped their role?

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Pointed comments on the kirpan: "above all a religious symbol"

By John Geddes - Friday, January 21, 2011 at 11:47 AM - 70 Comments

My colleague Colby Cosh says I was “sowing nonsense” when I wrote that the Supreme Court of Canada “found that the kirpan is a religious symbol, not a weapon.” He says the court found no such thing.

Here’s what Justice Louise Charron said in that 2006 decision on the question of whether she regarded the kirpan as a weapon or as a religious symbol, in the dispute between a Montréal school board and a Sikh student:

“Much of the [school board's] argument is based on its submission that ‘the kirpan is essentially a dagger, a weapon designed to kill, intimidate or threaten others’.  With respect, while the kirpan undeniably has characteristics of a bladed weapon capable of wounding or killing a person, this submission disregards the fact that, for orthodox Sikhs, the kirpan is above all a religious symbol.”

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That non-weapon sure is pointy

By Philippe Gohier - Friday, January 21, 2011 at 9:23 AM - 112 Comments

I am unpleasantly surprised to find Colleague Geddes sowing nonsense in the Quebec National Assembly kirpan debate—a conversation that has quite enough of it already. In his introduction to a Q&A with Liberal Sikh MP Navdeep Bains, Geddes links to the 2006 Supreme Court decision in Multani v. Commission scolaire Marguerite‑Bourgeoys, stating that the court “found that the kirpan is a religious symbol, not a weapon.” Begging his pardon, the court found no such thing. The court’s members are carefully trained in logic: it would never occur to them that an item had to be either a religious symbol or a weapon, and could not possibly be both. That would be a pretty silly conclusion! Justice Charron actually wrote:

There is no denying that this religious object could be used wrongly to wound or even kill someone, but the question at this stage of the analysis cannot be answered definitively by considering only the physical characteristics of the kirpan. …In order to demonstrate an infringement of his freedom of religion, Gurbaj Singh does not have to establish that the kirpan is not a weapon. He need only show that his personal and subjective belief in the religious significance of the kirpan is sincere.

The court didn’t find for the appellants on the grounds that “the kirpan is not a weapon”. Indeed, all parties to the suit accepted the premise “that the kirpan, considered objectively and without the protective measures imposed by the Superior Court, is an object that fits the definition of a weapon.” The court found for the appellant because the school board’s zero-tolerance policy towards weapons, based largely on fears that the presence of a knife would somehow allow spooky negative vibes to propagate throughout the school, did not constitute a minimal infringement upon the rights of a religion that happens to insist upon the carrying of a weapon. (Anyone who has studied the remarkable history of the Sikhs can only be surprised that they don’t carry about five of them.)

I hate to break it to Nav Bains and to admirers of leading comparative-religion scholar Michael Ignatieff, but reciting “It’s not a weapon” won’t give us a magic wormhole we can all leap through to avoid debates over religious accommodation in public services. As I understand matters, and I am perfectly prepared to receive instruction on this point, the whole point of the kirpan is that it’s an avowedly defensive weapon. The reference books, including those written by Sikhs, tell us that it is worn precisely to signify and reinforce the Sikh’s wholly admirable preparedness to protect his faith, his community, and innocent human life. I suppose I could have added the words “just as a handgun might be”, but that would send altogether too many of my readers scrambling for the Preparation H.

Respectable efforts to establish a modus vivendi on the kirpan in secured public spaces can’t begin with evasion if they hope to be successful (and certainly it sets a terrible precedent for evasion to be designated courage). I’ll add that the problems are not really all that thorny for those of us who have never consented to fanaticism about security theatre or to cretinizing “zero tolerance” of blades in schools.

Beverley McLachlin in conversation

By John Geddes, Kate Lunau - Monday, November 29, 2010 at 10:30 AM - 11 Comments

Photograph by Blair Gable

It’s 10 years and counting since Beverley McLachlin was sworn in as chief justice of Canada, the first female in the role. Born in the town of Pincher Creek, Alta., and first appointed to Canada’s Supreme Court over 20 years ago, today she is the most powerful woman in the country. An outspoken advocate of making the courts more accessible to Canadians, McLachlin spoke to Maclean’s last week in Ottawa.

Q: A hallmark of your court has been its openness—you’ve started webcasting appeals proceedings, you give many speeches. What’s your aim with all this?
A: The courts belong to the people. As such, I think people are entitled to know what goes on in the court. This is a very ancient principle of justice, that the courts always be open. As you’ve noted, we have webcasts now. People tune in, and they say, “who are those strange people sitting in their robes?” and they learn a little about the court, and the civilized dialogue that goes on there.

Q: Do you ever worry about the aura of the court being eroded?
A: I agree that the court should be somewhat removed. But I also think the people of Canada are entitled to know who’s on their courts, and how they work. And there’s greater danger in mystery, seeing the court as this oracle up there that all of a sudden, out of the blue, pronounces.

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