A missed opportunity for diversity

By Mark Steyn - Thursday, February 25, 2010 at 7:00 AM - 228 Comments

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.

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.

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.

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…

'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.

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…

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.

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, 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:

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 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…