Another year’s federal politics in 12 chapters
By John Geddes - Friday, December 30, 2011 - 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.
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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.”
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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
Philip Slayton in conversation with Luiza Ch. Savage
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 Colby Cosh - 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.
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Beverley McLachlin in conversation
By John Geddes, Kate Lunau - Monday, November 29, 2010 at 10:30 AM - 11 Comments
On gender balance on the court, whether judges are too soft, and lawyers working for free
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. -
Why our highest court seems afraid to take on the Harper government
By Philip Slayton - Thursday, August 12, 2010 at 11:20 AM - 0 Comments
Legal expert Philip Slayton on the Supreme wimps
Tom Hanson/CP
For a moment last January, the Supreme Court of Canada was flexing its muscles. In its decision Canada (Prime Minister) v. Khadr, it seemed ready to rein in the federal government in a serious way. The court came within a hair’s breadth of telling the Prime Minister to seek Omar Khadr’s repatriation from the United States, because his Charter rights had been breached by Canadian officials.
The Khadr case echoed a similar but more dramatic faceoff between executive and judiciary in the United States. In his January state of the union address, President Barack Obama criticized the U.S. Supreme Court decision in Citizens United v. Federal Election Commission with five of the judges sitting there while he did so (“not true,” mouthed Justice Samuel Alito, as the President spoke). The Citizens United case held that the First Amendment protects the corporate funding of political broadcasts. The New York Times has called the President and U.S. Chief Justice John Roberts “intellectual gladiators in a great struggle over the role of government in American society.”
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An undeniable win for Parliament
By John Geddes - Friday, April 30, 2010 at 9:00 AM - 117 Comments
The detainee papers ruling leaves the Tories no easy options
Blair Gable/Reuters
Peter Milliken’s low-key way of speaking doesn’t automatically command attention. His stature, short and thickset, doesn’t make him an imposing physical presence when he rises to address MPs. But the Speaker of the House of Commons, who has done the job for longer than anyone in Canadian history, didn’t have any trouble holding the often raucous chamber’s rapt attention on the afternoon of April 27, when he read his landmark ruling in the clash between the House and the government’s executive branch, the Prime Minister and cabinet. The question: must the Conservative government turn over to an opposition-dominated House all the uncensored documents MPs demand to see as they probe the Afghan detainees controversy? Milliken was unequivocal—yes, it must.
But he granted Prime Minister Stephen Harper two weeks to hammer out a deal with the opposition parties on how to keep legitimate secrets from being made public when those documents are finally delivered. “Finding common ground will be difficult,” Milliken said, showing a mastery of understatement. (As if to signal just how difficult, he paused midway through reading his findings to wipe the sweat from his white-haired brow with the sleeve of his traditional black robe.) The problem is the corrosively partisan mood in the House these days, especially over anything to do with the war in Afghanistan. The government routinely accuses the opposition parties of lacking proper regard for Canadian troops in the field. And the Liberals, in particular, have taken to referring at every opportunity to what they’ve labelled the Conservatives’ “culture of deceit.”
So it’s against this backdrop of intensifying acrimony that all parties now have until May 11 to try to reach the accommodation that Milliken insists upon. The obvious way forward is for the Conservatives to turn over whatever uncensored documents MPs demand, after negotiating for the House committee on Afghanistan, which is investigating the detainee issue, to set in place procedures to make sure secrets stay secret. Milliken gently, but firmly, closed the door on the argument from the government that boils down to suspicion that MPs on the committee can’t be trusted not to leak. “There have been assertions that colleagues in the House are not sufficiently trustworthy to be given confidential information, even with appropriate safeguards in place,” he said. “I find such comments troubling.” Continue…
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A missed opportunity for diversity
By Mark Steyn - Thursday, February 25, 2010 at 7:00 AM - 228 Comments
Mark Steyn on the opening ceremonies: Where was the genuinely bizarro cavalcade?
Left and middle: Photographs by Brian Howell
Judging by emails from readers in America, Britain, India, Australia, Europe, Africa and beyond, Vancouver’s Olympic ceremony was a gold medal snoozeroo of politically correct braggadocio impressive even by Canadian standards. A Florida correspondent suggested that Beijing’s decision in 2008 to downplay discreetly its official state ideology might have been usefully emulated by Canadian organizers unable to go a minute and a half without reflexive invocations of their own state ideology of “diversity.” A reader in Sydney said he had no idea until the ceremony that the majority of Canada’s population were Aboriginal. Actually, if they were, you’d be hearing a lot less talk about “diversity,” for reasons we’ll come to later.
But don’t take the word of doubtless untypical Steyn readers. Out on the Internet, the Tweeting Twitterers pronounced it a bust, and even in the Toronto Star Richard Ouzounian declared that “the eyes of the world were upon us and we put them to sleep.” On the other hand, the Vancouver Sun’s reporter cooed that this was “the Canada we want the world to see, magical and beautiful, and talented.” This just after she’d written: “Maple leaves fell from the sky. And then, the divine poetess Joni Mitchell and her haunting Clouds fills the air while a young boy floats and soars above the audience, undulating fields of wheat below.” I was pleasantly relieved to discover that a story about “the world’s most lethal cocktail” concerned some enterprising dealers who’ve been lacing heroin with anthrax, and not whichever malevolent genius came up with the idea of having airborne ballet dancers doing interpretative choreography over the Prairies to a mélange of Both Sides Now and W. O. Mitchell’s Who Has Seen The Wind. As is traditional, most of the creativity went into the audience estimates: apparently, this tribute to the only G7 nation comprised solely of high priests of the Great Tree Spirit, armies of Inuit sculptors, and Cape Breton chorus lines of federal grant worshippers was watched by three billion people “worldwide.” As if the Royal Canadian Mint could afford to commission that many commemorative authentic pewter maple-encrusted manacles.
Canada’s message to the world: every cliché you’ve heard about our plonkingly insecure self-flattering PC earnestness has been triumphantly confirmed. You need pay us no further heed until the 2068 Commonwealth Games opening ceremony. Half the countries, twice as long!
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Another expert on why the top court didn't go further on Khadr
By John Geddes - Thursday, February 4, 2010 at 5:17 PM - 29 Comments
News that the Canadian government won’t try to bring Omar Khadr home from Guantanamo Bay, despite last week’s Supreme Court of Canada ruling that Khadr’s rights have been violated, raises questions about the point of the court’s decision.
Legal advocates for Khadr contended the government had no choice but to seek Khadr’s repatriation, after the court found Canada had violated his rights by having an official interrogate him in 2004 after the Americans had subjected him to sleep deprivation.
But that seems to have been a misreading of the decision. Earlier I posted on the views of Eugene Meehan, a smart lawyer who follows the Supreme Court as closely as anyone. He said the court left it up to the government to “decide what to do, or what not to do.”
Another expert well worth listening to is Prof. Gerald Gall, who teaches constitutional law at University of Alberta, and is president and chair of the John Humphrey Centre for Peace and Human Rights. I asked Gall for his read of why the court didn’t order the government to do something to remedy the violation of Khadr’s rights.
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A veteran court-watcher on the Khadr issue: a fine balance
By John Geddes - Thursday, February 4, 2010 at 8:16 AM - 73 Comments
After the Supreme Court of Canada’s ruling last week in the Omar Khadr case, advocates for the Canadian being held by the U.S. at Guantanamo Bay said the government had little choice now but to ask for Khadr’s return to Canada.
They argued that even though the court hadn’t ordered Stephen Harper’s government to demand Khadr’s repatriation, the ruling left no other option, since it found his Charter rights were being violated. Now, the government is suggesting it will do no such thing.
Is Harper defying the top court? I asked Eugene Meehan, former national president of the Canadian Bar Association, former executive legal officer of the Supreme Court of Canada, and now chair of the law firm Lang Michener’s Supreme Court of Canada practice group in Ottawa.
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And another one on responsible communication
By Colby Cosh - Sunday, December 27, 2009 at 1:38 PM - 2 Comments
Q: Is Jeffrey Dvorkin’s analysis of the new defamation-law scene the product of expired eggnog? His piece entitled “Libel law reform: Be careful what you wish for” warns that the recent Supreme Court decision is “no early Christmas present” for Canadian media companies, and since that is exactly how I characterized it, I feel entitled to object to his contrarian Hail Mary.
My guess is that media law departments are now advising chief editors to restrain their journalists from doing more aggressive reporting unless they can prove that every effort (including a demonstrable commitment to editorial resources) has been made to get all sides of the story. …In any future libel action, the onus will now be [on] the media organizations to prove that every reasonable effort has been made to contextualize a story.
But that’s true only if they intend to take advantage of the all-new defence they have just been handed. The Court didn’t remove or diminish any of the existing libel defences that might already have motivated news investigations, including truth, fair comment, and privilege. We don’t know just how practically available the new defence will turn out to be, but at worst we are left where we started: anything one could publish in confidence before the new ruling can still be published in confidence now. Sure, the “early Christmas present” may be nothing more than the equivalent of ugly plaid socks, but it does come free and clear, with no strings or liens or novel obligations hiding in the bottom of the box.
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How the devil does business
By Colby Cosh - Wednesday, December 23, 2009 at 2:34 PM - 11 Comments
As the content of the Supreme Court’s “responsible communication” ruling propagates, I am seeing and hearing a lot of despairing wails of “Oh, TMZ will just love this!” Well, I’m sure the folks at TMZ love it when someone complains about them—usually, one guesses, in between visits to the site. In a mere matter of months TMZ has managed to replace the poor old Enquirer as the go-to synecdoche for the irresistible evils of celebrity-stalking.
But as popular as gossipy media content is, people don’t pay much attention to how it is generated. If they did, they would never imagine that the new “responsible communication” defence, which is designed to protect careful investigative reporting in the public interest from being nitpicked to death, has much to do with the kind of machine-gun journalism that TMZ practices.
Go on, visit the TMZ home page right now. Where is most of this stuff coming from? About two-thirds of it, at a guess, is founded on police tips and privileged court documents of one sort or another—flat, libel-conscious, factual summaries of the details of arrests, real-estate sales, family-law filings, police investigations, accident reports, and the like. It’s all produced by guys hanging around courthouses and police stations, much of it is in the public domain, and very little of it would be jeopardized by any version of defamation law, or at least any version in which truth and qualified privilege were defences. (It is also rather convenient to TMZ that the deceased have no right of action in libel.)
Really, there is not even much actual copy: TMZ depends very little on stylishly salacious tittering, and very heavily on the unique streaming effect that is created by a long sequence of barebones 75-word stories about celebrity transactions and troubles. You wish your staid local broadsheet was this information-dense. And what’s the mortar that fills in these bricks, which are costly to assemble but don’t involve much defamation risk? Occasionally, it consists of spoonfed stories from PR people trying to promote their clients’ own interests. Who was TMZ’s source for the details of Dr. Conrad Murray’s TV deal? Dr. Conrad Murray. Who broke the big news about Steve Tyler going into rehab? Why, it was Steve Tyler.
Throw in the occasional paparazzi photo, TV or radio clip, and stupid contest, and you’ve built yourself a media giant without having to spend much money on lawyers (though I’m sure they have some pretty good ones on the payroll). We read TMZ, leap to the wildest and most cynical conclusions about the celebrity gods and their sordid Elysium, and blame the messenger for our own mythomania. TMZ isn’t the problem, buddy.
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An irresponsibly quick reaction to "responsible communication"
By Colby Cosh - Tuesday, December 22, 2009 at 1:53 PM - 42 Comments
Don’t expect much from your journalism elite today, citizens: we’ll be busy celebrating our early Christmas gift from the Supreme Court of Canada. It was widely anticipated that the SCC would follow other Commonwealth jurisdictions in creating a new “responsible journalism” defence to defamation. It’s one that encourages contextual analysis of defamatory words, rather than casuistic focus on individual terms; creates less of a “strict liability” environment for journalists; and allows for the repetition of defamatory statements if the mere fact that those statements were made is itself news and the statements were properly attributed and set in context.
None of that is surprising and all of it is quite desirable. But before I get too far into this magnum of Krug, I’ll tell you what else leaps out at me in the new Magna Carta:
1. Even given that the Court was going to mimic other Commonwealth countries, it still had an array of options in defining “public interest” for the purposes of the new defence. The definition is chose is a broad one, influenced by past Canadian jurisprudence on the “fair comment” defence. Here’s the relevant lingo from the headnote [emphasis mine]:
To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”.
2. The Court has not chosen, or not yet chosen, to confine the availability of the defence to journalists working for old media in the traditional manner. It consciously did the opposite:
In arguments before us, the defence was referred to as the responsible journalism test. This has the value of capturing the essence of the defence in succinct style. However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets.
The definition of “responsibility” that publishers are asked to observe is essentially a description of good journalistic practice, so the defence will be available to non-journalists to precisely the degree in which they’re really doing journalism and doing it well. And working journalists will have an extra layer of protection insofar as their work is documented, checked by editors, and discussed with the new court-created definition of “responsibility” explicitly in mind. Still, the new defence is, quite properly, there for everybody. You won’t need to show some sort of professional license to appeal to it.
3. When the journos are finished high-fiving each other, they’ll probably start to feel slightly less upbeat pretty soon. It’s rarely observed in the debate over defamation reform that the problem of “libel chill” really contains two distinguishable component issues: freedom of expression, and uncertainty about what can be published and what can’t. The creation of a “responsible communication” defence will get more journalists (and non-journalists doing journalism) off the hook in the end, and should thus discourage some vexatious or wholly adventurous prosecutions and notices. It is less clear that the creation of a complex test for diligence in reporting, one that sets out a list of seven overlapping questions that isn’t even exhaustive, does anything to promote certainty.
Publishers can get away with more than they did before, but how much more? There’s no caselaw yet: the “responsible communication” defence is a newborn baby. Will the cost of defamation insurance decrease at all, once media outlets adjust their practices to take advantage of the more obvious gains made before the SCC today? Defamation certainly just became a much more complicated topic in the law: the legal costs of each individual suit are likely to increase.
So this decision isn’t exactly a Prague Spring of “libel chill”. If we wanted to get rid of “libel chill” we could adopt a rule tomorrow that “All articles containing the letter ‘q’, but only those articles, are defamatory.” That would make editorial judgments and defamation trials easy, and eliminate all “chill”—i.e., the existence of doubt about whether some subject can be approached and aired without risk. Some degree of “chill”, at some margin of verifiability, is the price we pay for the existence of sensible defamation law that honours freedom.
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The Commons: 'This is an exceptional case'
By Aaron Wherry - Friday, November 13, 2009 at 4:18 PM - 26 Comments
The Scene. As a general rule, the higher the ceiling, the more important the proceedings that fall beneath it. So it is that there is something more than 20 feet between floor and ceiling in the Supreme Court. And so here it was that the justices took their place at precisely 9am this morning and announced a start to proceedings in the matter of Prime Minister of Canada et al. v. Omar Ahmed Khadr.
The government’s man this day was a short fellow, blessed of a large forehead and mess of hair at the back, wearing small glasses in the middle of his face. His opening gambit was suitably dramatic. The court, he ventured, had no more authority to tell the government to request Mr. Khadr’s repatriation, then it had to decide that the ambassador be recalled or warships be amassed along the border to enforce that repatriation.
“We’re a long way,” one justice ventured shortly thereafter, “from recalling the ambassador.”
Perhaps. Though maybe just barely. Continue…
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'Complicit in the abuse of a Canadian citizen's rights'
By Aaron Wherry - Monday, August 31, 2009 at 1:42 PM - 17 Comments
The Globe and Mail editorial board laments the government’s decision to appeal the Federal Court ruling that Omar Khadr be repatriated.
Justice Minister Rob Nicholson is taking the Canadian government out onto a weak limb, in its appeal of a court order on the issue of Omar Khadr’s repatriation from the United States. It is weak legally and even weaker morally. There is no serious principle worth defending.
Here is the victory Ottawa seeks: that the Canadian government can be complicit in the abuse of a Canadian citizen’s rights abroad – up to and including torture – without a court ordering that it do its best to bring that citizen home.
Whether the case is winnable is beside the point. Is it really a victory worth fighting for?
Mind you, the Canadian government’s official position is—or at least was, at last check—that the United States did not participate in torture.
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Canada v. Khadr, the Empire Strikes Back
By Aaron Wherry - Tuesday, August 25, 2009 at 12:49 PM - 25 Comments
After the jump, the official statement from Foreign Affairs on the government’s second appeal of the Federal Court ruling that it repatriate Omar Khadr.
For the sake of argument, here is the Supreme Court’s previous ruling on issues related to Khadr’s imprisonment and here is the Federal Court’s ruling.
Both links courtesy of the indispensable Khadr files database maintained here. Continue…
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Soft Power: Exporting Canadian Jurisprudence
By Luiza Ch. Savage - Wednesday, September 17, 2008 at 3:12 PM - 3 Comments
The NYT’s Adam Liptak has an interesting article on the declining influence of American Supreme Court decisions around the world — and the rising influence of the Supreme Court of Canada. From 1996 to 2000, Canadian opinions were cited twice as often as American ones in New Zealand, for example.
(I think there is an interesting story there — due in large part, as the article points out, that many Western democracies adopted their constitutions post-WWII and although they initially drew on the much older American model, they now have more in common with each other than with the American approach to interpretation, which tends to look more inwardly at its own constitutional history and traditions than to “universal” concepts of rights.)
Liptak writes:
“Many legal scholars singled out the Canadian Supreme Court and the Constitutional Court of South Africa as increasingly influential. (…)
“… Frederick Schauer, a law professor at the University of Virginia, wrote in a 2000 essay that the Canadian Supreme Court had been particularly influential because “Canada, unlike the United States, is seen as reflecting an emerging international consensus rather than existing as an outlier.”
“In New Zealand, for instance, Canadian decisions were cited far more often than those of any other nation from 1990 to 2006 in civil rights cases, according to a recent study in The Otago Law Review in Dunedin, New Zealand.
“As Canada’s judges are, by most accounts, the most judicially activist in the common-law world — the most willing to second-guess the decisions of the elected legislatures — reliance on Canadian precedents will worry some and delight others,” the study’s authors wrote.”
It’s interesting that they also label Canadian judges as the “most activist” in the common-law world. I wonder if that has more to do with the judges, or the structure of the constitutions. The Charter has section 1, which, with its language about “reasonable limits” that can be “demonstrably jusified” has always seemed to me as an invitation, if not an outright directive, to judicial policy-making (for better or for worse). I haven’t examined the constitutions of other common-law countries to know whether or not they contain similarly explicit “balancing clauses”. The U.S. constitution does not have one, although over time judges have read various “balancing tests” into the interpretation of rights.
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BREAKING: Supreme Court *unanimously* finds Canada bound by principles of fundamental justice and international law
By kadyomalley - Friday, May 23, 2008 at 10:27 AM - 0 Comments
Canada (Justice) v. Khadr DISMISSED…
The principles of international law and comity of nations,Canada (Justice) v. Khadr DISMISSED
The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law and which might otherwise preclude application of the Charter to Canadian officials acting abroad, do not extend to participation in processes that violate Canada’s binding human right obligations. The process in place at Guantanamo Bay at the time Canadian officials interviewed K and passed on the fruits of the interviews to US officials has been found by the US Supreme Court, with the benefit of a full factual record, to violate US domestic law and international human rights obligation to which Canada subscribes. The comity concerns that would normally justify deference to foreign law do not apply in this case. Consequently, the Charter applies.
With K’s present and future liberty at stake, Canada is bound by the principles of fundamental justice and is under a duty of disclosure pursuant to s. 7 of the Charter. The content of this duty is defined by the nature of Canada’s participation in the process that violated its international human rights obligations.
In the present circumstances, this duty requires Canada to disclose to K records of the interviews conducted by Canadian officials with him, and information given to US authorities as a direct consequence of conducting the interviews, subject to claims for privilege and public interest immunity. Since unredacted copies of all documents, records and materials in the appellants’ possession which might be relevant to the charges against K have already been produced to a designated judge of the Federal Court, the judge will now review the material, receive submissions from the parties and decide which documents fall within the scope of the disclosure obligation.
HIGHLIGHTS FROM THE RULING
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Speaking of Canada's legal obligations in the Khadr case …
By kadyomalley - Friday, May 16, 2008 at 3:19 PM - 0 Comments
The Supreme Court of Canada will release its decision on this case next week:…
The Supreme Court of Canada will release its decision on this case next week:
UPDATE: I just noticed that the court is holding a pre-release lockup to brief journalists on the issues that arose during the case. While this is by no means unprecedented – according to my gmail archives, it’s been done on two earlier occasions this year – it does suggest that the court – or at least, its media relations specialists – expect that it may be a particularly newsworthy ruling.
32147 Minister of Justice et al v. Omar Ahmed Khadr
Constitutional law ‑ Charter of rights ‑ Right to life, liberty and security of the person ‑ Evidence ‑ Disclosure ‑ Whether the Canadian Charter of Rights and Freedoms requires disclosure of information collected by Canadian officials to assist a Canadian citizen accused in a foreign prosecution.
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Hoosiers, starring Barack Obama
By selley - Wednesday, April 30, 2008 at 1:08 PM - 0 Comments
Must-reads: …Dan Gardner on tobacco advertising; Thomas Walkom on our elusive recession; John Ivison
Must-reads: Dan Gardner on tobacco advertising; Thomas Walkom on our elusive recession; John Ivison on equalization.
Land of Confusion
The Supreme Court is anti-canine and has too few Newfoundlanders. Our recession is missing. The NDP suddenly isn’t so sure about biofuels. And the in-and-out affair remains beyond the comprehension of a notoriously pro-Conservative columnist. What a day!If you were looking for a weird, poorly informed take on the Supreme Court’s decision on sniffer dogs, the Toronto Sun‘s Peter Worthington has everything you need. Continue…
