Thursday, July 31, 2014

The "right" to bear arms in Canada - not.

Harper's Public Safety Minister says "To possess a firearm is a right..." No it is not in Canada. Amazing the level of propaganda or ignorance from the "Public Safety" Minister.

In Canada there is no constitutional or surviving common law "right" to a firearm. The Criminal Code and firearms regulations "cover the field". In 1993 (Wiles) the Supreme Court said: "Canadians, unlike Americans, do not have a constitutional right to bear arms."

In 2010 the Ontario Court of Appeal in R. v. Montague, 2010 ONCA 141 said:
[16] Moreover, contrary to the Montagues’ contention, the Supreme Court of Canada has addressed the question of whether the possession and use of firearms is a constitutionally protected right and has rejected the notion that Canadians have an absolute constitutional right to possess and use firearms. See R. v. Wiles, [2005] 3 S.C.R. 895, at para. 9; R. v. Hasselwander, [1993] 2 S.C.R. 398, at para. 414. Although s. 7 of the Charter does not appear to have been expressly invoked in those cases, the Supreme Court stated in Hasselwander at para. 414 that, “Canadians, unlike Americans, do not have a constitutional right to bear arms.” In Wiles at para. 9, the Supreme Court said: “[P]ossession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege.”

[17] The Montagues submit that the above-quoted comments are obiter, as ss. 7 and 26 of the Charter were not engaged in Hasselwander and Wiles or any related jurisprudence.

[18] We disagree. The Supreme Court’s comments in Hasselwander and Wiles apply with equal force to s. 7 of the Charter.

[19] The Supreme Court has also recognized that the possession and use of firearms is a heavily regulated activity aimed at ensuring peace, order and public safety: see Wiles, at para. 9; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783.


By the way, the decision of the Court in Montague was delivered by Moldaver J.A., who Harper later appointed to the Supreme Court.

Pretty much case closed. The Minister of Public Safety should open a law book once in a while.

Sunday, July 27, 2014

Rob Ford is "Lucy"

Luc Besson's new film "Lucy" is based on the old myth that we only use 10% of our brain capacity. Not true, but for some reason the movie poster got me thinking about our Toronto Mayor Rob Ford...

Sunday, July 20, 2014

Harper, Lawyers and the Rule of Law

This is more of a reminder for a larger project I'm fiddling with. I'm fascinated as a lawyer (non-practicing now, thank God) by the attitude towards the law, Charter and courts shown by the Harper Conservatives. Contempt I think is the word that best describes it. The contempt is borne out of a complete and willful lack of understanding of how our parliamentary democracy works and how laws have to be in conformity with the Constitution (including the Charter of Rights).

Theirs is a very unsophisticated - almost juvenile - belief in the "Supremacy of Parliament" and the false god of raw numbers democracy. Due largely to the influence of American republicanism (big and small "R") and prairie charismatic populism, they believe firmly in the right of the majority to tyrannize the minority. The courts of course stand in the way of it as a bulwark against laws that overstep constitutional or deeply-rooted common law precedent.

A recent example (one of many, especially in the wake of the Nadon decision) is a quote from MP Larry Miller, the four-term Conservative MP for Bruce-Grey-Owen Sound. It's saddening that in 4 terms as MP he has still not learned anything about how the parliamentary system works. In fact, he must be actively taking steps to not understand it.

Harper's chair of the Transport and Infrastructure committee, and known as the Conservative “Keeper of the Flame”, Miller recently said:

Larry Miller MP
Deep Thinker
“Taking parliamentary powers away ties into the stories that the courts are making the laws. In my opinion, Parliament should make them and if the public don’t like them, then the public will straighten things out. If you take things one step further, why elect people and pay them to do something the courts are doing. But the courts are not there to make laws, they are there to interpret and enforce those laws.

“There are two main reasons I became a Conservative. Firstly, I’m fiscally responsible — I want to see smaller government, not bigger government. Secondly, I’m all for rights and freedoms but the Charter complicates things. Pierre Trudeau did this willfully and deliberately, taking rights away from the majority to protect the minority. The Charter of Rights puts all the lawmaking decisions into the hands of the Supreme Court and to me, that is not what democracy is about."

 See July 14, 2014 National Post article.

It's hard to know where to start with this level of ignorance, especially the lament about Trudeau and the Charter taking away the right of the majority to beat the tar out of minority interests whenever they feel like it. That was sort of the well-publicized point of it.

Then you have Dan Albas, the MP for Okanagan-Coquihalla, who says "he respects the courts" but the goes on to show contempt for the judicial process:

"Often the Plan B is to do an end-run around our democratic process and turn to the courts where it seems some judges are quite happy to engage. This can result in decisions contrary to what have been decided in our democratic process," Albas told CBC Radio's The House. "Basically what you're having is a judge can overturn and then cost the taxpayer a lot of money without any accountability or representation on their behalf."

Because rights are judged on how much money they cost taxpayers, which the government wouldn't have to spend on court challenges if they cared about them in the first place.

Here's another quote from an anonymous Harper MP that shows some of this contempt for professionalism and the legal profession in particular by his government:

Another recounted receiving a call from the Prime Minister’s Office informing her that she’d received an appointment in the justice ministry: “I said, ‘Tell the prime minister to call me back, I didn’t finish law school.’” When the prime minister called, he told the MP that the department had too many lawyers, and that he needed “some practical politicians in there.”

Imagine the Department of Justice having too many lawyers. Do you think this might be the attitude that has led to so many of their laws and cases being thrown out by the courts as clearly unconstitutional?

Tuesday, July 15, 2014

We're Better - Off With Harper, or something

Here's a little Photoshop to counter the new paid for social media campaign by the Conservatives that pops up on Twitter or Facebook as "promoted". If you click on it you are immediately asked for your email address for fundraising, CIMS and what have you.

First the original:

Now my enhancements...

Feel free to post in reply whenever you see the original.

Thursday, July 3, 2014

"Canada's Founding Party"

How Harper's Conservatives have constantly tried to mangle and even rewrite Canadian history has been an alarming interest of mine.

There are events like the celebrations of the War of 1812, when Peter MacKay famously thanked the French for their kind assistance when in fact they had been on the other side. Remember that Napoleon guy who gave England so much trouble? MacKay tried to recover by saying he was referring to French Canadians, except of course he made the statement at the French embassy to real Frenchmen.

Others have written extensively about how the Conservatives' 8th grade approach to Canadian history is pretty much only about hockey and wars. Even as I hit the "publish" button on this little note, Andrew Coyne wrote an article about Harper's 2014 Canada Day speech.

The Conservative Party's website has a page devoted to how the history of Canada is supposedly the history of the Conservative Party: "Conservative achievements include Confederation, women’s suffrage, the Canadian Bill of Rights, and the Canada-U.S. Free Trade Agreement." Women's sufferance in 1917 was introduced by Borden as an electoral trick to win the election (only women connected with serving soldiers got the vote so they could vote for "pro-soldier" Borden's Conservatives). Diefenbaker's Canadian Bill of Rights was toothless and is now irrelevant thanks to the Charter, which Harper refuses to acknowledge or follow when it conflicts with what he wants. And the Canada-US Free Trade Agreement brought in by Mulroney is at best controversial benefit to Canada and at worst decimated Canadian industry and put us firmly on the path to devolving once again simply into a resource state, which Harper has again embraced wholeheartedly.

As for being responsible for Confederation and Canada itself, that is a myth.

Forget for a moment that that same page states that the current Conservative Party was founded in 2003, it reaches back over the corpse of the Progressive Conservative Party so Harper's Conservatives can lay claim to being "Canada's Founding Party".

Glossing over the other aspects of shoddy historical revisionism, the main claim to being "Canada's Founding Party" is a major and false part of the Harper Conservative mythology. Of course Sir John A. Macdonald was a major mover in Confederation, but he was hardly alone.

There are generally accepted to be 36 "Fathers of Confederation" (not including Joey Smallwood) and they came from all parties. Here is a list of the "Fathers of Confederation" to which I have simply appended their political affiliations:

Politician -- Province -- Political Party

  1. Sir Adams George Archibald -- Nova Scotia -- Liberal
  2. George Brown -- Ontario -- Liberal
  3. Sir Alexander Campbell -- Ontario -- Conservative
  4. Sir Frederick Carter -- Newfoundland and Labrador -- Conservative
  5. Sir George-Étienne Cartier -- Quebec -- Conservative
  6. Sir Edward Barron Chandler -- New Brunswick -- Conservative
  7. Sir Jean-Charles Chapais -- Quebec -- Conservative
  8. Sir James Cockburn -- Ontario -- Conservative
  9. George Coles -- Prince Edward Island -- Liberal
  10. Robert B. Dickey -- Nova Scotia -- Conservative
  11. Charles Fisher -- New Brunswick -- Liberal
  12. Sir Alexander Tilloch Galt -- Quebec -- Liberal-Conservative
  13. Sir John Hamilton Gray -- Prince Edward Island -- Conservative
  14. Sir John Hamilton Gray -- New Brunswick -- Conservative
  15. Sir Thomas Heath Haviland -- Prince Edward Island -- Conservative
  16. William Alexander Henry -- Nova Scotia -- Liberal
  17. Sir William Pearce Howland -- Ontario -- Liberal-Conservative
  18. John Mercer Johnson -- New Brunswick -- Liberal
  19. Sir Hector-Louis Langevin -- Quebec -- Conservative
  20. Andrew Archibald Macdonald -- Prince Edward Island -- Conservative
  21. Sir John A. Macdonald -- Ontario -- Conservative
  22. Jonathan McCully -- Nova Scotia -- Liberal
  23. William McDougall -- Ontario -- Liberal
  24. Thomas D'Arcy McGee -- Quebec -- Liberal-Conservative
  25. Peter Mitchell -- New Brunswick -- Liberal-Conservative
  26. Sir Oliver Mowat -- Ontario -- Liberal
  27. Edward Palmer -- Prince Edward Island -- Conservative
  28. William Henry Pope -- Prince Edward Island -- Conservative
  29. John William Ritchie -- Nova Scotia -- Conservative
  30. Sir Ambrose Shea -- Newfoundland and Labrador -- Liberal
  31. William H. Steeves -- New Brunswick -- Liberal
  32. Sir Étienne-Paschal Taché -- Quebec -- Conservative
  33. Sir Samuel Leonard Tilley -- New Brunswick -- Liberal
  34. Sir Charles Tupper -- Nova Scotia -- Conservative
  35. Edward Whelan -- Prince Edward Island -- Liberal 
  36. Robert Duncan Wilmot -- New Brunswick -- Conservative
As you can see, there are a lot of Liberals in the mix, including key men of considerable political stature like George Brown and Oliver Mowat of Ontario. 

Macdonald himself at the time of Confederation had run under the confusing banner "Liberal-Conservative", which mostly died out within a decade although was still in use by some candidates as late as 1911.

In 1864 at the Charlottetown Conference there were 9 Liberal delegates and 14 Conservative or Liberal-Conservatives.

Confederation a Conservative achievement? Hardly.  As a glance at the above list shows it was a complex alliance of provinces, politicians and parties, but to the 8th grade history of the current Conservatives, it was their achievement alone. I suppose that is why they feel they can do anything they like with it.