University of Alberta Faculty of Law Blog

4'33"

An interesting debate is underway in Ottawa, and it's significance is hard to overstate.

http://www.canada.com/news/Human+Rights+Commission+challenged+over+investigative+powers/2069087/story.html

The entirety of the questioning of Ezra Levant and Mark Steyn has been posted to Youtube, so one can check it out if one is so inclined. Regardless of the their political inclinations, they both have a significant grievance with the Canadian Human Rights Commission which has investigated them: Levant famously reprinted the Danish cartoons depicting Mohammed in his now no-longer-in-print Western Standard, while Steyn's MacLean's article on tolerance landed him in hot water with the commission.

As an aside, the free speech debate even came up at U of A Law last year, when a clever and hilarious double entendre by the women's rugby team landed them in hot water with person(s) on the Faculty.

In Ottawa, R. v. Keegstra, [1990] 3 S.C.R. 697, has found its way into the debate, and it is worth examining the minority's judgement. It is also important to note that the questioning yesterday dealt with two different kinds of hate provisions, namely, those of the Criminal Code and those of s. 13 of the Canadian Human Rights Act, the former of which were the primary focus of Keegstra and the latter of which were the primary focus of yesterday's discussion.

In her dissent in Keegstra, McLachlin J. writes the following at para. 230:

“I turn then to the question of whether the expression here at issue falls within the sphere of conduct protected by the guarantee of freedom of expression in the Charter. As this Court has repeatedly affirmed, the content of a statement cannot deprive it of the protection accorded by s. 2(b), no matter how offensive it may be. The content of Mr. Keegstra's statements was offensive and demeaning in the extreme; nevertheless, on the principles affirmed by this Court, that alone would appear not to deprive them of the protection guaranteed by the Charter.”

In addressing the arguments of the Crown, McLachlin notes that Keegstra's comments did not fulfill the requirement of violence that would bring them under the purview of the Criminal Code, that the scope of s. 2(b) should not be diminished by s. 15, and that the Criminal Code's hate speech provisions did not operate to advance Canada's multiculturalism pursuant to s. 27 of the Charter. With regard to s. 27, she writes what I think is the most important argument that can be made for free speech: “cut[ting] back the protection afforded by s. 2(b) risks undercutting the fundamental freedom with no guarantee of a tangible benefit in return.” Her arguments are lucid and important.

Indeed, it seems that her reading of s. 2(b) conforms in some way with John Stuart Mill's argument in his essay On Liberty:

“The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise.” [emphasis added]

What, then, would we do with all this free speech?

“I have nothing to say and I am saying it and that is poetry.” – John Cage

What, then, might one do if one were inclined towards censorship?

http://en.wikipedia.org/wiki/File:Natgeo_censorship.jpg

Book Review

God's Joust, God's Justice
John Witte, Jr.

Grand Rapids: William B. Eerdmans Publishing Company, 2006

 498 Pages

 

Witte, a professor at Emory University, offers an intriguing account of the role of religious life shaping our legal heritage, and makes a case of its continued relevance in tracing our history and its role both in continuing our particular historical circumstances, as well as an argument for its necessity in interdisciplinary legal studies. 

The book is a compilation of previously published articles that have been moulded together, so one can expect less of an exhaustive argument, but rather illustrative “snippets” that highlight and emphasize issues that align more with both his methodological approach and traditional American preoccupations, viz. human rights, constitutionalism and American founding, and understandings of family before and after Roe v. Wade. As such, for the purposes of contextualization, it does bear the marks of a distinct tradition and most notably in its debt to his mentor Harold Berman.

 

Overview of approach:

 

“For me, history is more than a series of tricks that we play on the dead, or that the dead play on us. History is more than simply an accidental chronology of first one thing happening, and then another. For me, history is also a source of revelation, a collection of wisdom...The challenge of the Christian historian is to search within the wisdom of the ages for some indication of the eternal wisdom of God. It is to try to seek God’s revelation and judgment over time without presuming the power of divine judgment. It is to try to discern God’s justice within God’s joust” (4).

 

Witte puts forth what he calls “the binocular of law and religion” which is to say that, in the Western tradition, the historical vision is one part law, one part religion that interact and bounce off each other, and the means that informs the major currents of change has been dialectic: “Every legal tradition has known both theocracy and totalitarianism – the excessive sacralisation and the excessive secularization of law.  But the dominant reality in the West is that law and religion stand not in monistic unity, nor in dualistic antinomy, but in dialectic harmony” (5). The modes of cross-fertilization include, but are not limited to:

Conceptual overlap – eg, sin and crime, covenant and contract, righteousness and justice

Formal overlap – eg, liturgy and ritual, habits of tradition and precedent, shared sources of authority and power

Methodological overlap – analogous hermeneutic interpretation, casuistic and rhetorical methods of argument and instruction, systematic methods of organizing doctrine

Professional relationship – both have officials

Institutional interaction – political and ecclesiastical officials and institutions (5)

 

As he notes, the goal of the “binocular” is to avoid the monocular view of looking to history with law or religion alone, for the purposes of:

Grand civilizational pictures – in which he follows Berman by identifying a distinctly Western tradition with its distinct watershed moments, particularly Rome and its conversion under Constantine, the Papal Revolution, the Protestant Revolution, The Enlightenment, and Post-WWII.

Narrower denominational pictures – in which emphasis is placed on mainly Protestant interactions and influences post-Reformation

Discrete doctrinal pictures of law and religion in Western history – revealing origins and trajectories of issues as they have played out and influence our understanding, with an emphasis on human rights and the family (6)

 

 The merits of the approach is an illuminating perspective that casts light on panoramic glimpses of history and ways of conceiving unifying threads that persist and continue to inform. It situates itself comfortably and contents itself as being detached from other scholarly investigations of the past. The student of history will find the approach most problematic, especially since it refuses to engage itself with defences from competing interpretations and problems. One issue comes notably to mind, that law and religion are not defended from the critiques that would displace them as foundational, nor an outline of the basis of granting them similar status in historical investigation, which would require deeper theorization. Thus, the reader is left with an interesting approach, but which presses no compulsion in acceptance. However, one suspects a combination of textual approachability, time, faith, and perhaps other unarticulated theological underpinning grounds the apparent complacency.

 

So much for me trying to sound academic. Bottom line: interesting book, controversial issues, moderated tone.

 

The honesty's too much, Iggy

The blogs were agog this weekend with the revelation by Maclean's of Michael Ignatieff's 2005 comments at Trinity College Dublin. Remarking on Canada’s “entirely bogus reputation as peacekeepers”, Ignatieff seems to have scandalized Canadians with some very anodyne truths that other citizens of the world might take to be self-evident.

 

“If you are a human rights defender and you want something done to stop a massacre, you have to go to the Pentagon, because no one else is serious.”

 

And:

 

“It’s disgusting in my own country, and I love my country, Canada, but they would rather bitch about their rich neighbour to the south than actually pay the note… To pay the bill to be an international citizen is not something they want to do.”

 

Our contribution to Afghanistan (small at a single skeleton brigade) notwithstanding, Canadian defence and foreign aid budgets as a percentage of GDP remain among the lowest in the world.

 

This blogger is heartened to think that Liberal foreign policy for an Ignatieff-led cabinet might involve more than parading Lester Pearson’s legacy naked around Ottawa. So sorry, Lloyd Axworthy – no soft power sequel.

Click here for the full story: http://www2.macleans.ca/2009/07/17/%e2%80%98bogus%e2%80%99-peacekeeping/

AnyoneButHarper.ca

We supposedly live in a democracy where all votes are accorded equal weight. Not true.  In Alberta, we are routinely subjected to majority governments based on the Tory power base in rural parts of the province.  The same is true federally.  Jean Chretien's three successive majority governments resulted from popular support that, at its highest, was in the low forties in terms of percentage.  In electoral boundaries reference cases decided in the 1990s, the Supreme Court of Canada upheld substantial variations in populations between ridings to account for our dispersed population.

Citizens can now take a stand and maximize the effect of their ballots by strategizing their votes to prevent majority governments from taking hold based on minority popular support.  While I am no fan of the Harper government, I think this is a good idea regardless of the party seeking a majority.  If you want to rule by majority, then you should win at least 50 per cent of the vote.  In fact, it probably the case that the excesses of power are best avoided by minority governments.

If you visit anyonebutharper.ca and enter your postal code, you will told the opposition member most likely beat the Tory candidate in that riding.  The internet is a wonderful thing, indeed.   

Does Canada Want A Majority Right Wing Government?

An unwinnable war in Afghanistan; proud shots of politicians with military commanders; preventing the press from filming caskets of fallen soldiers at CFB Trenton; a control freak prime minister who cuts backroom deals with the best of them (think Cadman); right wing "me first" economic policies brought to you by Harris Conservatives (Flaherty)...you think these guys were scary as a minority government, you aint seen nothing yet.    Lets do ourselves a favour and keep the extremists away from the reigns of power this election.

What is said in church, stays in church

First it was Rev. Jeremiah Wright’s sermons. Then Rev. Michael Pfleger’s.  Now it’s Sarah Palin’s.   Can’t  everyone just leave the churches out of this?  People go to places of worship to get away from the secular; to indulge themselves in their faiths. These are places of refuge and safety. Of course things are going to be spoken there which will not appeal to the ‘rational’ or ‘political’ outsider. It is this freedom to believe, to speak, and to listen, without recrimination or embarrassment, that draws congregants to their churches in the first place. The recent trend of church snooping and telling stories meant to mock and disparage political figures is troublesome. Can’t we all agree that what is said in church, stays in church?

Politicians are scum

Ok that is a very strong title for a post - but I have, generally speaking, over the years come to detest politcians of all stripes. They are condascending, smug, glad-handing, and many of them are stupid but think they are God's gift to mankind. They make a mess of our lives and claim they are doing us a favor. The list of grievances goes on.

The Edwards affair just re-inforces my view even further.

Update: I thought the context of my post was clear - but judging by the comment, probably not. So let me rephrase: Trial lawyers who become politicians and cheat on the wives who are dying of cancer and who are condascending, smug, glad-handing, are stupid but think they are God's gift to mankind, and who make a mess of our lives and claim they are doing us a favor - are scum.

Update2: Ok guys - this post was aimed primarily at Sen. Edwards - the post was not clearly composed.

Toronto's Mayor: A convenient conservative?

In the wake of a sudden legal strike by TTC employees, Toronto's mayor and former NDP stalward David Miller is calling for the Ontario government to (gasp) legislate TTC employees back to work. 

Solidarity forever, brother.  And try to get something done (besides keeping the trains running on time) during your second term, willya?

The Obama NAFTA Memo

PM Harper's biggest problem these days, by far, is the possibility of a leak from his office of Barack Obama's ... er ... nuanced position on renegotiating NAFTA.  [And yes, it is his biggest headache:  the Cadman stuff will blow over one folks recall that the current opposition, while in power, held a candle to no-one in the favours-for-votes department:  i.e. Belinda (cabinet post), Scott Brison (parliamentary secretaryship to the PM and later a cabinet post) and David Kilgour (troops in Darfur)]. 

The dope to date on Obama's excellent Canadian adventure is:  on Feb. 9, Obama's senior economic advisor met with Canadian consular officials in Chicago.  The memo of that meeting, written by one of the staffers to Canada's Ambassador to the US Michael Wilson, is here.  (Scan partway down the link.)

By the way, I posted a related question on an earlier post (before the NAFTA issue really blew up) but was surprised to get very little response:  who do people think would (among the three current contenders) be the best President for Canada?  My own view then (and now) is that it's McCain hands-down, as he is the only non-protectionist from either party who had a serious shot at the White House this time 'round.

Apathy or Rational Response

As usual the Edmonton Journal gets it wrong. The Journal claims that somehow the fact that most Albertans did not vote is a disgrace and in a way invalidates our right to complain about the system.  Nothing could be further from the truth.  First, the right to vote is exactly that a right and not an obligation. Suppose I believe that both major newspapers in Edmonton are third-rate in quality compared to any national or international broadsheets. The fact that there is a free-press and that I have the right to read any of these two does not mean that I must read one of the newspapers in order for me to gripe about how bad the quality of journalism is in this city. It would the oddest situation if we had to partake in whatever process in order to complain: e.g. I could not complain about bad the food was in the city's restaurants if I did not eat at them, or how bad the sports teams were if I did not go to a game etc.

Hence, when the majority of us stayed at home and chose not to participate in a process, where all four candidates sounded alike and the opposition sounded even worse than the Tories, we were exercising our right not to vote. We were saying to the government "we don't really like you that much" but we were also saying to the opposition parties "you guys are so pathetic that we are not even going to give you our vote". 

Just as the choice to vote is a check on the government, the choice of not voting is an equally powerful check on the opposition parties that may somehow take the electorate for granted. 

The Journal in its editorial fell into the old and trite saying that if you don't vote, you have no right to complain. Nothing could be further from the truth. When you vote, you have implicitly accepted that whoever wins is now the legitimate reprsentative of the people. So those of you who voted and did not get the government you wanted, you are out of luck for four years (and should shut up). Those of us who watched with incredulity the state of politics in this province and who decided that it wasn't worth wasting the effort on any of the parties are the ones who truly have the right to complain. We refused to validate the silly system that would have produced a winner from four equally unqualified candidates.

Obama on NAFTA: "Yes We Can", but "No I Won't"

Phe-nom Barack Obama has joined Hillary Clinton in taking some big swipes at NAFTA.  (The Ohio primary is next week, coincidentally).  Should we be concerned?  Apparently not - at least so far as Obama is concerned.  Apparently the Senator from Illinois was good enough to give our ambassador in Washington a heads-up that the campaign rhetoric about NAFTA would be heating up but - not to worry - it's all just campaign rhetoric.

I find it curious that there is precious little discourse in this country on who would be the best president for Canada.  The status of NAFTA - now that both the Congressional GOP and the Democrats have largely moved into the protectionist mode - is not a given.  (NB:  McCain is unique among all the serious and even not-so-serious candidates in 2008 from both parties as being, relatively speaking, a free trader).  Some of us may think this is a good thing, some of us may not.  But shouldn't we be at least talking about it?

Sarkozy = the [insert your favorite boob's name here] of France?

New arrivals to our province complain to me about the one party state nature of Alberta and the many indiscretions that some of our leaders have been able to get away with.  Some visitors from other parts of the world bemoan the lack of sophistication on the part of our North American leaders. I wonder if saying "p*** off" in French makes you sound more sophisticated:

Hoisted on your own...

Ah the sweet irony of John McCain who favored growing Leviathan now has to face the beast itself!

Science: Enemy of the State

Rick Mercer has a rant on the Harper government's attitude to science and to Canada's Nobel Prize winning climate scientists. You can watch the video or read text. Favorite line: "With this crowd being a science advisor is a bit like being the Maytag repairman. The phone just doesn't ring."

Lucky for me I still have a job.

Why do Premiers never make it in Ottawa?

The New York Times has an interesting piece today addressing an issue that I've wondered about lately in view of John McCain's getting-close-to-a-sure-thing GOP nomination:  why US Senators so rarely succeed in making the direct transition from the Senate to running for President.  (The only two during the last century were Warren Harding and JFK).  (NB:  there were a few other 20th Century Presidents who were Senators - i.e. Harry Truman and Richard Nixon - but they did not accede to the Presidency directly from the Senate but rather from the Veep-ship.  The Times cites some plausible reasons, I think, why the American people prefer (for example) state governors to US Senators when it comes to electing a President.

Even allowing for the differences between the US and Canadian systems (and more particularly between the functions of state governors and provincial premiers, and between the functions of US Presidents and Canadian PMs), it is striking how Canadian premiers have been unsuccessful in becoming prime minister.  I am (as I type) trying to recall a Canadian prime minister who was premier of a post-Confederation province (as opposed to Macdonald and Tupper who were pre-Confederation first ministers of Canada and Nova Scotia, respectively), but I don't think there is a single one who made the transition from premier to PM, even if only indirectly (i.e. with intervening time spent in the House of Commons).  Many have tried, of course - Edward Blake, John Bracken, George Drew, Robert Stanfield (who came very close) - and there were probably lots of others who don't spring to mind.  Plus of course Brian Tobin was touted not all that long ago as a possibility (and still might be, for all we know). 

I'm not sure why this is, but I can hazard a guess that the federal political culture is in fact just that - federal.  Moreover, as a general statement it seems fair to say that Canadians identify themselves regionally more than Americans, and thus a Premier of, say, Nova Scotia, would be viewed by Albertans less sympathetically than a Governor of Tennessee might be viewed by North Dakotans.  I realize that there are exceptions (Texans distrusting New Yorkers, etc.) - as I say, this is a general statement. 

Another possible explanation is that Americans want their chief executives to have executive experience, whereas because our executives are also legislators, that is not seen as being so important.

Liberal MPs and Free Speech: Courting Nut-Jobs and Irking Party Leaders

Keith Martin, MP - erstwhile Reformer, then Alliance, then Conservative and now Liberal MP for Esquimalt-Juan de Fuca (BC) is moving a private member's motion that would repeal Section 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.

Unfortunately, his motion has attracted both (1) the support of a loonie fringe group of racists, and (2) the ire of a hapless stateist (specifically, his party leader, who wants him to withdraw the motion).

CBC "ad hocs" as Liberal researchers

It turns out that, despite denials from CBC and the Liberals, a CBC reporter did in fact draft questions for Liberal MPs to ask of Brian Mulroney during last month's Schreiber-Mulroney gong show.

That the CBC's reporter would take sides (and, more to the point, take that particular side) is not altogether surprising to me.  What is surprising, however, is that Liberal MPs are actually so hard up for help these days that they look to the press gallery for assistance.

Chuck to Nation: Got Zits? Run for President!

Huckabee supporter Chuck Norris suggested yesterday that John McCain, at 72, is too old to become President.

Hmmmm ....  Isn't this a little rich coming from (1) an almost-68 year-old martial artist who (2) supported 73 year old Ronald Reagan's bid for a second term as president of a country that imposes no mandatory retirement age on its Supreme Court justices?

Based on his logic, he should be supporting the youthful Senator Obama.

Political Compass

This test attempts to measure political leanings on a two-dimensional scale (with a libertarian-authoritarian axis, and a left-right axis).  No such test can be perfect, but this one is more sophisticated than many of its kind.  When you finish the test, you can also see where other prominent political figures supposedly stand.  It's interesting to see our current PM as the only significant figure in the right-libertarian camp.

I would say where I ended up on the axes, but I don't want Professor Adams marvelling out loud about how we manage to remain on speaking terms.

The Gloves are Off

... so says Clinton (Bill) to Obama, here. 

Obama's lucky to be up against the other Clinton.