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On the burqa ban

David Mitchell in The Observer - If Britain decides to ban the burqa I might just start wearing one:

Governments and legislatures shouldn't tell people what they can and can't wear. By doing so, they would, in every sense, be taking a massive liberty. As long as people aren't wearing crotchless jeans outside primary schools or deely boppers with attached sparklers on petrol station forecourts, we've all got the right to wear exactly what the hell we like and I can barely believe that we're having this debate.

But we are. Stupid people are thinking about an issue that doesn't need to be thought about and a YouGov survey says 67% of us want full-face veils outlawed. Just when I thought my estimation of humanity couldn't fall any further, I discover that two-thirds of my fellow countrymen are, or at least were for the duration of taking a survey, morons.

Employment Equity gone tomorrow?

    According to this article on the Globe and Mail website, the Tories are looking to change the Federal Government's employment equity programme (misidentified by the article's author and Pat Martin as Affirmative Action). Treasury Board President Stockwell Day is quoted as explaining “While we support diversity in the public service, we want to ensure that no Canadian is barred from opportunities in the public service based on race or ethnicity." In a co-ordinated statement Minister of Immigration Jason Kenney added, "we must ensure that all Canadians have an equal opportunity to work for their government based on merit, regardless of race or ethnicity."
    What they mean by this is that white guys should get jobs with the federal government too and the current policy prevents this. This is a canard, frequently trotted out to mollify the able-bodied white guy who didn't get the job. I am sure ministers Day and Kenney and many of the people who read this blog can identify one or more of those able bodied white guys who didn't get a job that was offered to some one who was not one or more white, male and able-bodied. Great, but this doesn't show that on the whole white guys are not getting jobs with the Feds (or with employers covered by the Employment Equity Act), it only shows that some guy didn't get a job, likely for reasons he and his associates do not completely know. I note that neither minister offered statistical evidence to show that white guys (or anyone else for that matter) are disproportionately not getting jobs.
    The thing is, Employment Equity is not about individual cases: its about trying to address systemic differences, where the breakdown by gender, Aboriginal status, ability or ethnicity at an employer or in a job category is different from the breakdown of the population as a whole. For example you can see the 2008 Annual Report on the Employment Equity Act here, and you can look at the Visible Minority discussion here. According to the report all three segments of the employment equity act employers had a smaller proportion of visible minority employees than the proportion of visible minorities in the available labour force (The Globe and Mail article quotes some different numbers for 2009, but I don't know their source).
    Employment Equity is supposed to work the following way: given two or more candidates who are equally qualified, the employer should show a preference for those candidates who are currently underrepresented in the workplace. Removing this, the employer has to make this decision on some other ground. Day and Kenney have not, apparently, suggested some other better criteria. The fear in the case of systemic discrimination is that, without a criteria, the employer is going to lean toward hiring someone who doesn't speak with an accent, who they look forward to having a beer with or playing on their hockey team, who went to the same schools they did, or other such criteria---criteria that could perpetuate inequities in the workplace.
    Employment equity programmes should not be permanent: they should remain in effect until balance between the workplace and the population is met. The problem with today's announcement is that absent equity, the government is consciously moving federal employment toward a position that will be less equitable than it is today for no particularly good reason.

Post script

    It is not clear from the article what actually is being considered here: under the Employment Equity Act there are four designated groups: "women, Aboriginal peoples, persons with disabilities, and visible minorities." If Day and Kenney were precise in their language and quoted accurately, then the change only deals with "visible minorities" and maybe "Aboriginal peoples" depending on what they meant by "race or ethnicity".

Rape by Deception

An Isreali judge has sentenced an Arab man to jail for pretending he was a Jew before having sex with a woman he met on the street. Read the full story here.

I am no criminal lawyer, and no expert in Isreali law, but I wonder how this will play out in a Canadian court. Some questions come to mind:

1. Will a Canadian court convict if it was established that the lie was determinative of the complainant's consent? (h/t to Howie for this question)

2. Putting legal doctrine aside, should deceptive statements trigger culpability for the crime of rape? To put this in stark terms - can one lie to get another to have sex with them?

3. Did the court conflate two different episodes of consent - consent to engage in a relationship with a Jewish man, and consent to the act of sex?

4. Is there something here that calls for a criminal law version of the remoteness doctrine in tort law? Is the consent based on the deceptive statement too remote to trigger culpability based on the act of sex, which she obviously consented to?

PR ≠ BP

Check out this sweet photoshopping by BP:

http://www.americablog.com/2010/07/bp-photoshops-fake-photo-of-command.html

I take no position on BP's mess, but I do truly enjoy that they would take the time to shoot themselves in the foot.

You see, the thing about calling gametes "life's essence" is that...

Margaret Sommerville has a piece in Saturday's Globe and Mail that argues against donation of gametes specifically for procreation (which, according to her, some think is distinguishable from procreation for infertility treatment). Here are some nuggets from this piece:

• "Is donor conception the 21st-century version of the wrongs we now recognize we did to some children in the 20th century? Are we repeating in a new context and in new ways the terrible errors and grave injustices that occurred with Australia’s “stolen generation” of aboriginal children, the United Kingdom’s “home children” sent to Canada and other British Commonwealth countries, and the “scoop” of native children from reserves into Canadian residential schools and white adoptive homes, all of which deliberately separated children from their biological families.”
• "I suggest that the first step in dealing, ethically, with the issues I have identified and with other related issues, is to place the future child, and the child’s human rights and our obligations as a society to him or her, at the centre of the decision-making as to what should be required, allowed or prohibited – that is, what we must, may or must not do, respectively – in the use of assisted human reproduction technologies, including gamete donation."

Regarding the first, the analogy is jarring and wrongheaded in many ways I won't go into here. Not because I can't raise specific objections to it, but rather that I suspect my objections might be obvious to anyone who reads that. On the second point, well, it's a great thought, but I wonder if Somerville would recommend we use law to enforce the same for biological (or more to the point, heterosexual) procreation.

The problem I have with philosophical arguments like the ones suggested by this piece is not that they don't make sense, but that they require that nothing else make sense in order to sound legitimate. But hey, confusing statements like the one I just made are the reason G&M favors bioethicists with a clear moral position.

Want an informed citizenry? Ferget Edjucashun

"In the end, truth will [win] out. Won’t it?

Maybe not. Recently, a few political scientists have begun to discover a human tendency deeply discouraging to anyone with faith in the power of information. It’s this: Facts don’t necessarily have the power to change our minds. In fact, quite the opposite..."

Stossel has a problem with lawyers

Stossel's show on the Fox Business Network last night - 'The Trouble with Lawyers'.  Guests included high-profile trial attorney Geoffrey Fieger and James Copland of the Manhattan Institute.  

In his accompanying article dumping on lawyers John Stossel said this  - "It's why I've come to think of lawyers the way I think about nuclear missiles. We need them to keep us safe. But we avoid using missiles because we understand the collateral damage they do. We ought to avoid lawyers for the same reason." 

Mimsying the borogroves

Consider this passage from the reasons in a recent trial decision in Alberta:

Brown v. Britsky, 2010 ABQB 445

 

 [82]  I am left, therefore, with the evidence that I do accept. Both the vehicles were partially over the centre line when the accident occurred.  I cannot conclude that by a wrongful act, the driver of either vehicle put the other into a position of difficulty in which he was forced to make a decision which turned out to be wrong. Thus, while I have reviewed the agony of collision and “faked left” decisions cited to me by counsel for the Ouellette parties, they are not helpful in resolving this case.
 
[83]  However, I can conclude that in the absence of any good reason, if a driver crosses the centre line of an undivided two lane highway when another vehicle is approaching, that driver is negligent. As a consequence, since I cannot conclude that either driver had any valid reason to be where they were on the highway at the time of the collision, I conclude that both drivers were negligent.
 
[84]  I turn next to the question of whether there was a causal connection between the negligence of both parties and the ensuing accident. In my view, causal connection has been demonstrated on the evidence. Had either party remained on his own side of the road, I find it probable that the accident would not have occurred.  Had Mr. Ouellette remained on his side of the road, he could have avoided the collision even if Mr. Britsky had crossed the centre line. The same is true with respect to Mr. Britsky. The basic test for determining causation is the "but for" test. I find that "but for" the negligent acts of both of the drivers the accident would not have occurred: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 [2007 SCC 7].
 
[85]  Having found that the negligence of both drivers caused the damage suffered, the next matter to be decided is the degree of fault to be assigned to each driver.

 

The trial judge stated that the but-for test was the applicable test. Then she held that but-for the conduct of each driver the accident would not have occurred. But, remember we are dealing with unconnected conduct. If "but for" the conduct of each driver the accident would not have occurred, does that not mean that the conduct of neither driver was a but-for cause? Take driver 1. Even if he had acted properly - the counterfactual - the accident would still have occurred. That is, the accident would have occurred without his negligence. So, then, doesn't this mean that his conduct was not a but-for cause if the but-for test is applied as it supposed to be applied? The same could be said for driver 2.

 

That leaves us with these questions:

 

1. How was it that the but-for test was applicable at all?***

 

2. If the but-for test was not applicable, does that mean that the drivers' conduct was NOT a but-for cause but was nonetheless a factual cause? (all words in italics added to inital post: DC)

 

3. If the but-for test is the only test in Canadian tort law for determining the existence of factual causation, shouldn't the actions of both drivers have been dismissed?

 

4. Was the trial judge's decision that the conduct of both drivers was a factual cause wrong?

 

The answers to Qs 4 and 1 are below the break.

 

Russian curators face jail time for Mickey Mouse and Lenin Jesus depiction

A conviction of these curators won't stop another gallery owner Marat Gelman from mounting his own exhibit - "I will try to answer with strong actions in order to be heard."

Andrei Yerofeyev and Yury Samodurov, two Russian curators, who organized a show called “Forbidden Art 2006,” are facing possible three-year jail sentences for offending the religious beliefs of the Russian Orthodox community, which is against the law in their country. The decision from the court will come down on July 12. The exhibit, which featured a Mickey Mouse Jesus, a Coca-Cola Christ with the slogan “this is my blood,” and a crucified savior with an Order of Lenin medal in place of his head, pissed off the Russian Orthodox community -- which then pressured the government to prosecute them.

Update:  The curators were convicted today of inciting religious hatred and fined but escaped jail sentences.

Abbotsford home wrongly raided because the police smelled marijuana

From the Vancouver Province:

Police followed the odour of growing marijuana to an Abbotsford home, then more than a dozen officers raided it Sunday evening with guns drawn.

Oops.

Instead of a grow-op, they found a respectable couple, their daughter and her fiance, who had been sitting upstairs together looking at the couple's photos from a recent fishing vacation in the B.C. Interior. Roadie, the 14-year-old arthritic dog, was lying in his customary position at the top of the stairs.

It was around 7 p.m. when the family heard a terrific pounding on the front door. Daughter Tracie Fast, a co-ordinator at a helicopter-repair company, went to the window and saw police in the yard. One shouted "open the door!" and she walked downstairs and did so, stepping out onto the porch.

About a dozen officers were pointing handguns at her, and when she turned her head, there was a cop with an assault rifle right next to her, she said. The police said they had a warrant to search the house, but they wouldn't tell her what for. There were more police behind trees at the side of the house, and still more at the rear, said Fast, 37.

Fast complied with the request to call her family down, and she, her father Ken, 63, mother Connie, 57, and fiance Scott Richardson, 36, stood on the lawn, surrounded by police. A few minutes later, the cops handcuffed them all, and put them into two squad cars.

.........

To obtain the warrant, police cited "visual indicators" of marijuana production in addition to smell, MacDonald said.  He said he couldn't say what those indicators were because he didn't have the warrant at hand.

Disturbing drunk driving ad

If You Let Friends Drink And Drive, You Might As Well Blow Their Brains Out from ANIMALnewyork.com on Vimeo.

You say tomahto, I say tomayto

or when I use a word?

Or, as H. Dumpty J (speaking ex cathedra) once said, it's all about who has the last word. (Actually, he said it's all about power, but having the last word is power.)

Consider:

Resurfice v Hanke 2007 SCC 7, para. 23  per McLachlin CJ. The contest is factual causation.

 23     The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. 

Next Skinner v Fu, 2010 BCCA 321

[17]           The Supreme Court’s articulation of the “but for” test might usefully be contrasted with the judge’s analysis, in this case, in which he posed the following question at para. 9:

... In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was the proximate cause or materially contributed to the occurrence of the collision. 

[18]           In my view the judge erred in the way he framed the analysis.  “Proximate cause” or “effective cause” are sometimes confusing terms. ....

Now consider. What did the trial judge mean by "proximate cause or materially contributed to"? Did the judge perhaps mean nothing more than "substantially connected"? The trial judge did not cite case law for the judge's statement of what had to be determined to establish either factual causation or causation. Careful readers of this blog, and others, know that factual causation is one aspect of causation.

 What if the trial judge had written "In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was sustantially connected to the occurrence of the accident" and quoted Resurfice para. 23

What would the BCCA have done, then? Would the BCCA have said that McLachin CJ was using substantial connection to mean proximate cause in the traditional sense, and go on to hold the he trial judge erred for the same reasons the BCCA actually gave? They amount to saying that the trial judge used what amounted to a last clear chance analysis rather than considered whether the defendant's conduct was at least one of the factual causes.

Here's a rhetorical question: If the BCCA (and other appellate courts) can't or won't provide a clear, coherent, statement of what the law is, what do the appeal courts expect trial judges to do?