the daily snivel

I've received some comments from a few people that the default template for The Daily Snivel is a little hard on their eyes, what with the black background and white text. I personally prefer this style, but I'd hate to alienate readers when a simple not exactly impossible solution was available, so (with a little help from the internet) I went ahead and created a second template with dark text on a light background. The link to switch between the two is located on the menu bar on the right side of the blog.

Let me know what you think and if you encounter any technical difficulties. 

On October 24, 2006, Justice Rutherford of the Ontario Superior Court of Justice made a ruling in an Ottawa courthouse stripping the heart out of the federal anti-terrorism legislation following a procedural motion by counsel for the defence during the terrorism prosecution of Momin Khawaja. Ottawa lawyer Lawrence Greenspon, Mr. Khawaja's lawyer, had argued that much of the anti-terrorism legislation under which Mr. Khawaja had been charged was unconstitutional, as it offended the Canadian Charter of Rights and Freedoms.

Attacked was the "motive clause" established by the anti-terrorism legislation in its definition of terrorist activity. It created the offence of terrorism in the Criminal Code of Canada where terrorist activity was, until this ruling, defined as folllows:

"terrorist activity" means

... (b) an act or omission, in or outside Canada,

(i) that is committed

(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and

(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and

(ii) that intentionally

(A) causes death or serious bodily harm to a person by the use of violence,

(B) endangers a person's life,

(C) causes a serious risk to the health or safety of the public or any segment of the public,

(D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or

(E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C),

and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.

Where the section I have included with bold and underlined text is the impugned motive clause that Justice Rutherford ruled infringed the rights to freedom of religion, expression, and association. This section in particular worried those who feared an increase in racial profiling following the terrorist attacks of September 11, 2001.

Justice Rutherford's reasons focused on the fact that, at heart, a crime is a crime, and the motive or intention for committing a criminal act is a foreign concept in a criminal case, and when included creates the risk of criminalizing certain religions, activities, and points of view. He wrote: "The average person would be hard-pressed, I daresay, to recount much about the motives of some if not all of these notorious crimes (such as the 9/11 attacks). Just what political, religious or ideological objectives or causes the perpetrators felt they were supporting with their actions is largely lost on the populations affected. And for good reason. It doesn't really matter."

Although Justice Rutherford did not quash the seven indictments against Mr. Khawaja, which will proceed to trial in January, Mr. Greenspon welcomed the decision, according to news reports, due to the blow rendered to the legislaton's core. While some argue that this ruling meanas that the Crown's case is now easier to prove in terrorism charges (due to the fact that a key element of any terrorism charge, motivation, has been deleted), I think they have it backwards. I think it is much more likely that it is the religious affiliation or political belief that forms the basis of a terrorism charge. Without that basis, a politicized and stigmatizing terrorism trial becomes just another criminal trial -- as it should be.

Thomas Walkom of the Toronto Star concludes an article about this ruling with a very keen and insightful observation along just these lines when he writes:

If the definition of terrorism itself is struck down, there is not much point to having special laws above and beyond those aspects of the criminal code that already ban murder, bombing and mayhem.

But if terrorism loses its privileged place, the political rationale of the war on terror begins to slip away. Terrorism is no longer a unique world-defining struggle. It becomes instead just another mundane horrible crime — like burning down an apartment building to get the insurance, or shooting up a schoolyard to get back at the teacher.

Which wouldn't be a bad thing. Part of the problem of the war against terror is that it has got us all spooked. We forget that we are far more likely to be murdered by a close relative than an Al Qaeda devotee. Indeed, our chances of being killed in a car crash exceed either of these scenarios by a hefty margin.

In effect, yesterday's court decision reminds us of this. It says a crime is a crime is a crime. That is its central — and welcome — message.

Good law enforcement makes us safer in a way that vague and now demonstrably unconstitutional legislation never can. That is a message to take home. A crime is a crime. 

It's been a rainy weekend -- the sort that keeps people inside and under the covers with a book (or, for those more fortunate than I, with other people). I've been bouncing between home and work, and invariably ending up soaked through as I (famously) do not believe in umbrellas. I've also been watching the cats wrestle and play, like bored and fussy children, which in any case is better than staying up late listening to George play with, torment, and finally eat a mouse, which is something else he's been up to now that the poor horrible little creatures are starting to seek warm dry shelter inside the old walls of this old house. There's something terribly real about the wet crunchy sound of a mouse being hungrily torn to pieces and delivered up to its final (at least until the litter box) resting place.

The sulky, dreary tone of the weather reminds me of a great story my mother told me about being at home with young children. When she was a young parent, and my older brother and sister were just little tykes (and I wasn't even in the picture yet), they fought like demons. Constantly. She was often alone with them while dad worked, and was constantly worn down by their high maintenance antics.

The only peace she got on the weekend was for an hour on Saturday around 5:00 pm when the Bugs Bunny show came on. It was on one of the few channels that we received through the old rabbit ears, and while it aired they were transfixed. It was a reliable, predictable, hour of quiet and sanity.

Mom vividly recalls one weekend when Bugs Bunny was pre-emtped by a football game and my young siblings were so upset and disappointed that they were even more horrid than usual. My mother was devastated and furious, and actually called the station to complain and let them know that their stupid football game had cut out the one thing she was looking forward to for the entire weekend -- a bit of peace and quiet.

This weekend I went out to see Shortbus with my dear friend S. (known otherwise on this blog by her pseudonym Lucretia) and her sister, and found myself enjoying it immensely, although I'd certainly hoped and expected to live my life never knowing the answer to the question "What does Sook Yin Lee's vagina look like?"

That being said, I was impressed that the sexuality in the film was so explicit and unabashed that it never seemed out of place, and was generally either funny or moving in being so earnest and awkward. The autofellatio scene in the opening is by itself worth the price of admission, both for the grounding sight of knick-knacks being knocked off a shelf by the climbing legs of the aspiring contortionist as well as for the feat itself. Overall, I found the movie obth hilarious and touching, which is a rare accomplishment, and particularly so because I never felt the movie was trying to be anything except a film about screwed up couples and fucking, both of which are fundamental aspects of being human.

All of this reminds (including the screwed up couples part) me to say that S. and I have known each other for exactly twelve years now (see the entry for October 15/16). The anniversary of the night we met passed this week, and I'm very happy to know that even with the volcanic nature of our past relationship and the physical or emotional distance that periodically separated us in the past, we're still such good friends.

So what did you do on your pissy rainy weekends? 

A couple of weeks ago, the Conservative minority government decided to chop funding for a number of pet projects they have long despised, showing less concern for budget balancing or ensuring that funding dollars are well spend than simply for purging ideological irritants. Chief among those cuts were the eradication of the Court Challenges Program and the Law Commission of Canada. Both of these cuts have outraged a lot of Canadians, including myself, due to the striking animus shown towards useful programs that make a real and profound contribution to access to justice, the rule of law, and an evolving, progressive legal system.

The Law Reform Commission of Canada is -- or was -- an independent body formed in 1997, and designed to make recommendations to the sitting government on modernizing Canadian laws. In 2004, it recommended reforming Canada's electoral system by introducing proportional representation, which I feel would result in a far more representative and democratic system than currently exists, and (may I add) had we done so at that time, we might not be in the mess we are in now.

The Court Challenges Program provided funding to a certain number of rigorously screened cases where an individual applicant believed that his or her equality or language rights were being infringed by unconstitutional federal legislation could apply for funding to challenge that legislation in court. The program funded test cases, meaning equality claims that had not been litigated before.

The overarching motivation behind both cuts seems to be to appease Conservative voters by cutting programs long loathed by the party and seen as providing funding to groups that do not traditionally vote Conservative. With particular regard to the Court Challenges Program, Conservatives in Canada have been quite vocal in what they perceive to be "judicial activism," where the courts strike down sections of legislation that are inconsistent with the Constitution or "read in" remedial language so as to make the legislation operate in a valid fashion. One might argue that this is the very function of the judiciary, and furthermore that the requirement that legislation be consistent with our constitutional values is explicitly entrenched in our constitution by virtue of section 52, and what one will eventually discover is that what "judicial activism" really refers to is any decision by a judge concerning the state of the law that the beholder vehently disagrees with.

Accordingly, it seems hard to believe that the cuts were made in good faith. In fact, when he made the announcement, Prime Minister Harper defended the decision with words I am sure (and sincerely hope) he will someday be forced to eat at the polls:

"Mr. Speaker, this government intends to behave in a constitutional manner.
We do not intend to adopt unconstitutional legislation. We intend to respect the Constitution, including the division of power between the federal government and the provinces. We do not intend to pay Liberal lawyers to challenge unconstitutional laws."

So, what impact has the Court Challenges Program had on the state of Canadian law? Here are a few examples where the Program has fundied either parties or intervenors (intervenors are "friends of the court" who are given standing alongside the parties to address the court about the possible impact of the court's ruling on issues of great importance, particularly):

• In Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513, the Supreme Court confirmed that sexual orientation was a prohibited ground of discrimination under setion 15 of the Canadian Charter of Rights and Freedoms in a case where a member of a same-sex couple had applied for benefits under the Old Age Security Act. Although the Court concluded that the government's decision to limit funding to opposite-sex spouses could be justified, it opened the door to the recognition of the unambiguous equality rights of gays and lesbians in Canada.


• In R. v. R.D.S., a young black man was charged with assault against a police officer when the two were involved in an altercation. Both the youth and the officer had very different points of view as to what transpired before the youth was charged. In this case, Justice Sparks of Halifax, Nova Scotia found a reasonable doubt and acquitted the youth, commenting that "police officers do overreact, particularly when they are dealing with non-white groups." The Crown appealed this decision and argued bias, and the Nova Scotia Court of Appeal agreed. The case was then appealed to the Supreme Court, which concluded that Justice Sparks, who was also black, had not acted in a biased manner, but had drawn upon the context of the racial dynamic in Halifax in assessing whether reasonable doubt could exist between the two diametrically opposed stories.


• In R. v. Golden, an African-Canadian man was in a restaurant when he was arrested on the suspicion of committing an offence and was strip-searched in a public place. The argument was made that this search was unreasonable and therefore unconstitutional, and that the evidence obtained from the search ought to be excluded. After a number of appeals through the Courts, the Supreme Court of Canada agreed with Mr. Golden's arguments, and excluded the evidence and acquitted him. It noted the submissions of intervenors that because of the over-representation of African-Canadians and Aboriginals in the Canadian Justice system, it is important to develop a careful framework governing when and how strip searches are to be conducted to prevent unjustified invasions before they occur.


• In Sauvé v. Canada (Chief Electoral Officer) a majority of the Supreme Court of Canada decided in 2002 that a rule barring convicted offenders serving sentences of two years or more from voting in Federal elections was unconstitutional and violated section 3 of the Canadian Charter of Rights and Freedoms. The majority concluded that the right to vote was so fundamental that deference could not be afforded to the decision of the government.


• In researching this piece, I read a lot of schadenfreude about the demise of the program from those who believe it only ever assisted left-aligned "special interest groups," so I thought it was important to mention that the Court Challenges Program also provided financial assistance in the Reference Re: Firearms Act in 1998. While it was ultimately held that the legislation was constitutional and within the authority of the federal government's criminal law powers, I don't think you have to be a bleeding heart liberal to appreciate the vital role this program played. You just have to be a civil libertarian interested in fair government, justice, and the rule of law


• Finally, you should really read Harper v. Canada (Attorney General) (yes, that Harper), where the Court Challenges Program funded Democracy Watch as an intervenor against Mr. Harper's arguments, and decide for yourself if there was any extra animus involved in making this decision.

The cut was explained as a cost-saving measure designed to eliminate expenditures that were not providing enough "value for money" to Canadians, which seems hard to believe given that role the Court Challenges Program has played in some of the most critical issues of the Charter era. In fact, the program cut only saved taxpayers $5.6 million over two years, while ensuring that access to the courts no longer exists for litigants seeking to challenge an injustice. Given the recent announcement of a $13 billion federal surplus, it seems like money well spent if it means an important check is kept on discrimination against large numbers of Canadians, particularly where the alternative is simply that only the wealthy can afford to go to court and ensure that their rights are protected.

It is nice that Prime Minister Harper announced his intention to be part of a government that does not pass unconstitutional laws. The problem is in trusting any government to decide for itself that it is behaving in a way that respects the constitution and the equality rights of citizens. Some legislation is discriminatory in its effect -- that is, even laws that are completely neutral on their face can be discriminatory in application. Consider, for example, the situation in Eldridge v. B.C. (Attorney General), where legislation responsible for ensuring access to health care to residents of B.C. relied on the assumption that anybody who needed health care could come to a hospital and speak to a doctor about it. The appellants in Eldridge, however, were born without hearing, and could not communicate with a doctor without sign language interpretation. Without that sign language interpretation, Canadians who were deaf effectively did not have access to a government-funded service, and this was ruled discriminatory and unconstitutional, even though the issue simply never occured to those drafting the health care legislation.

In other cases, the government may take a deliberate choice to pass unconstitutional or discriminatory legislation because it feels its constituents demand it as a matter of policy (such as a pending decision by the Conservatives to re-open the debate on same-sex marriage in Canada, and then ram legislation through the House of Commons if that debate fails).

The courts exist to litigate complicated questions of law and fact, and make expert decisions consistent with the Constitution and legal precedent. While I don't agree with the Supreme Court of Canada in all cases, I respect its authority to decide the issues we send to it, as should the current (and temporary) Government of Canada. All these cuts do is deny access to justice in a miserly and mean-spirited fashion, while laws that may or may not be constitutional may or may not get the scrutiny they deserve.

Then, of course, just to ice the cake is the recent announcement by the Conservative Government that it will seek to impose a reverse-onus on those convicted of a third violent or sexual offence, requiring the offender to convince a court that he or she is not a dangerous offender. In the absence of this proof, the person will be designated a dangerous offender, the result of which will be the incarceration of that offender for an indeterminate period with no possibility of parole for at least seven years. I'm going to do a more in-depth analysis of the bill shortly, but in the meantime, consider whether you think on its face that this legislation is at all constitutionally valid. 

After a glorious month of sleeping late and playing Ms. Pac-Man on my newly resurrected iBook, I'm glad to be back at work. I was offered a part-time contract back at my beloved legal clinic, where I have been tasked with the unenviable job of going through each and every client file and completing a thorough review of the assigned law student's file management skills. This involves making sure that conversations with clients or third parties are properly docketed, that retainers are up-to-date, and that limitation dates are properly identified and entered into the bring-forward system, as well as about twenty other essential requirements. I'm also reorganizing all the precedent files on our network -- we have sample letters and forms that posted for each legal division that can be used as a starting point when drafting correspondence or legal pleadings, which can be very handy if the precedent documents are up-to-date and properly vetted, and simply be frustrating if they aren't (because supervising lawyers have to make the same corrections over and over again if there's a deficient document being relied upon).

If it sounds boring to you, I can only assure you that it is something I am enjoying tremendously. I have a love of detail and thoroughness that makes this job a lot of fun, since I get to help steer the students away from bad file management habits and delve into dusty corners of the network to shoo away the cobwebs that gather amidst archaic opinion letters and moldy old templates. Best of all, while I'm only working 20 hours a week, the quirks of being in a lower tax bracket now mean that my net paycheques are, in fact, slightly larger than they were when I was a full-time articling student. That is, I work way less and get paid slightly more. It's a good life.

It isn't permanent, of course, but it's nice to have a springboard in an environment I love while I'm looking for something more full-time and lawyerly in Ottawa.

And there's still time for sleeping late here and there.