On Ottawa's Invertebrate Proliferation

Well, apparently it's official. On the day when Canada's new ambassador to Washington declared, in response to queries about Canada's involvement in the proposed North American missile defence shield, that "[w]e are part of it now...and the question is, what more do we need?", reports indicate that Prime Minister Paul Martin has rejected Canadian support for the shield.

This is yet another case of Martin disposing of his convictions on account of perceived public pressure (he supported BMD during his Liberal leadership bid in 2002-2003), despite recent polls which clearly illustrate that missile defence does not register anywhere near the top policy concerns of Canadians.

What is even more disappointing than Martin's flip-flop on this issue is that he allowed the BMD debate to be dominated by alarmist rhetoric from the NDP and the Canadian Left, painting missile defence as the "weaponisation of space" and the start of a "new arms race".

Instead of being resolute, Martin dithered. Instead of spinning missile defence as the "next phase of NORAD", as a means "to continue being an equal partner at the table of North American defence", and as a way "to ensure that America's defence interests coincide with those of Canada", Martin decided to let petty temporal politics dictate our future foreign policy direction.

Instead of showing Canadians and Americans that possessed a spine, Paul Martin chose to relegate our continental relevance into the dustbin of history.

For shame.

On Rights, Stephen Harper, and Gay Marriage

Leader of the Opposition Stephen Harper has been vilified over the last few days for his remarks initiating debate on the Liberals' bill to expand the definition of marriage.

Part of the vilification has been over his refusal to recognise marriage as a "right". He noted:

"The Prime Minister cannot, through grand rhetoric, turn his political decision to change the definition of marriage into a basic human right, because it is not. It is simply a political judgment.... Same-sex marriage is not a human right."

The Left has, in recent years, conflated "rights" with its policy preferences. This tactic is so successful precisely because it is a one-word way to marginalise your opponent's position: how could anyone be opposed to "rights"? Now, allowing private delivery of health services is wrong, as people have a "right" to health care. Allowing smoking in private establishments is wrong, as people have a "right" not to breathe smoke. And now, apparently, access to marriage is a fundamental human "right".

The unfortunate corrolary of this superfluous rights discourse is to desensitise individuals to *actual* struggles for fundamental human rights.

Ask the activist in Zimbabwe about rights. He's been beaten for participating in opposition politics. He'll respond that just being able speak his mind freely is a right that should be protected.

Speak to the politician in Nepal about rights. He's recently been put under house arrest by the King as the country regresses towards an absolute monarchy. He'll respond that freedom from arbitrary detention is an important right.

Talk to the poet in Cuba about rights. He's been jailed for 25 years because he called for a referendum to create a multi-party political system. He'll respond that a free and fair franchise is an important right.

It's unfortunate that political discourse in this country has degenerated to the point where just about everything is a right (requiring a claim on others, of course, if you cannot provide it yourself). Rhetorical tactics like these only serve to alienate rather than attract people like me, who in the absence of the state leaving marriage entirely, support extending marital recognition to gay couples.

The Left been remarkably successful in its effort to get many of its pet projects recognised as human-rights issues. But this has been at the expense of cheapening the international struggle for real human rights--free speech, free assembly, and the franchise, for example--for which thousands of individuals throughout the world risk imprisonment and death on a daily basis.

REGULATIONWATCH: The Federal Government's Salad Dressing Recipe

After re-reading Peter Jaworski's piece in the Western Standard commenting on the ridiculous regulations relating to the content of baked beans sold in Canada, I decided to examine the Food and Drugs Act and its accompanying regulations to review other government-prescribed food ingredient lists for the latest installment of REGULATIONWATCH.

While PLVQ readers are encouraged to review the consolidated regulations if you are interested in seeing more provisions of Canada's food governance regime, I've decided to include for your pleasure the government-mandated content of "salad dressing" below:

B.07.042. [S]. Salad Dressing

(a) shall be a combination of

(i) vegetable oil,
(ii) whole egg or egg yolk, in liquid, frozen or dried form,
(iii) vinegar or lemon juice, and
(iv) starch, flour, rye flour or tapioca flour or any combination thereof;
(b) may contain
(i) water,
(ii) salt,
(iii) a sweetening agent,
(iv) spice or other seasoning,
(v) an emulsifying agent,
(vi) citric, tartaric or lactic acid, and
(vii) a sequestering agent; and
(c) shall contain not less than 35 per cent vegetable oil.

Lest you think that violating the government's recipe chart is entirely benign behaviour, here are the corresponding penalties for a violation of the act and/or its regulations:

Offences and Punishment

Contravention of Act and regulations

31. Subject to section 31.1 every person who contravenes any of the provisions of this Act or of the
regulations made under this Part is guilty of an offence and liable

(a) on summary conviction for a first offence to a fine not exceeding five hundred dollars or to imprisonment
for a term not exceeding three months or to both and, for a subsequent offence, to a fine not exceeding
one thousand dollars or to imprisonment for a term not exceeding six months, or to both; and
(b) on conviction on indictment to a fine not exceeding five thousand dollars or to imprisonment for a term
not exceeding three years or to both.

Offences relating to food

31.1 Every person who contravenes any provision of this Act or the regulations, as it relates to food,
is guilty of an offence and liable

(a) on summary conviction, to a fine not exceeding $50,000 or to imprisonment for a term not exceeding
six months or to both; or
(b) on conviction by indictment, to a fine not exceeding $250,000 or to imprisonment for a term not
exceeding three years or to both.

And I thought government bans on smoking in private establishments were excessive.

On Not-So-Subtle Diffferences

I continue in the tradition of my colleague Bellator's demarcation of the gulf between Canadian and American socio-political values.

Today, while Canada's Prime Minister stood in the House of Commons to speak in favour of his government's legislation to expand marriage to gay couples, yet another American state took steps to constitutionally enshrine a statutory prohibition on gay marriage.

While it is likely that the Canadian legislation will get the simple majority it requires to pass third reading in the House, most state lawmakers expect the Tennessee gay marriage ban to win the required support, which would then allow a referendum to be held on the issue.

Though it's (increasingly?) commonplace, it's still intriguing to me how two adjacent countries--sharing so many commonalities--can have such remarkable political disparities.

134 Anti-Harper Law Profs Identified

PLVQ readers may remember the recent open letter that 134 law professors jointly signed in reponse to Conservative leader Stephen Harper's musings about same-sex marriage. In their letter, the profs decry Harper's position, arguing that the notwithstanding clause would be the only means that the Tory leader could ensure that any potential legislation he were to introduce to enshrine traditional marriage would pass constitutional muster.

The text of the letter, if you haven't already seen it, is found here. Of interest is that three of my five professors at Dalhousie are signatories. Lovely.

REGULATIONWATCH: Supreme Court of Canada weighs in on 'necessity' of regulation

This evening, I read R. v. Wholesale Travel Group, a 1991 Supreme Court of Canada case in which Justice Cory distinguishes between criminal and regulatory offences for the purposes of establishing the mental element (ie. the accused's awareness) of the individual's impugned action.

Reading the case is fairly uneventful, until you get to the part entitled The Fundamental Importance of Regulatory Offences in Canadian Society.

Here are some gems:

"It is through regulatory legislation that the community seeks to implement its larger objectives and to govern itself and the conduct of its members."

"It is difficult to think of an aspect of out lives that is not regulated for our benefit and for the protection of society as a whole."

"From cradle to grave, we are protected by regulations...we profit from regultory measures which we often take for granted."

"In short regulation is absolutely essential for our protection and well being as individuals, and for the effective functioning of society."

"It is properly present throughout our lives."

Just too funny.

On Lesbians and Knights (Redux)

Patronus' note: I meant to publish this last week, but the post was deleted, I had to start from scratch, and then both Domina and I were sidetracked by our weekend-long attendance at a local political convention. The analysis is nevertheless still relevant...

More details have surfaced in the case about the BC Human Rights Tribunal case, in which the Knights of Columbus were accused of violating the BC Human Rights Code by preventing a lesbian couple from holding their wedding reception in a K of C-owned hall. For those who are unaware, the Knights are an international Catholic men's organisation; the chapter in question clearly felt a religious obligation to prevent a same-sex wedding from being celebrated on its premises.

As I indicated below, I had thought that this case would have been best settled in the courts on a contractual breach basis, given that the couple had already placed a deposit on the hall with the intent of using it. But the Globe reports that, once the K of C discovered the reason for which their hall was being used, they:

"...returned the couple's deposit and paid for both the rental of a new hall and the reprinting of wedding invitations after Ms. Chymyshyn and Ms. Smith (the couple) complained that invitations listing the hall's address for their reception had been mailed."

Let's get this straight. The K of C essentially settled the issue with the couple in question, yet the complainants still brought forth a claim of discrimination against the proprietors of the hall.

What a display of gratitude for what seems, superficially at least, to be a mutually acceptable resolution to an unfortunate situation for both parties.

Likelihood of success for the couple launching the complaint

As I indicated earlier, I would post a brief analysis of the potential success of the claim brought forward. So, here goes:

The K of C, in publicly advertising its hall's availability to the public, falls under the ambit of the BC Human Rights Code, as the letting of the hall is considered a "...facility customarily available to the public", the denial thereof on account of sexual orientation being prohibited by the Code.

It is clear that the couple was discriminated against for the purposes of the BC legislation.

There is, however, a defence available in the Code to those who have a "bona fide and reasonable justification" to discriminate in the provision of a facility.

In order to invoke this defence, the Supreme Court has articulated a test that it generally uses to ascertain whether the impugned standard (the one challenged as discriminatory) is justifiable for the purposes of the defence I noted above. While used mainly in an employment or service provision context, presumably the standard could be used in this case, though it is unclear whether the BC Tribunal would.

In its attenuated form, once a violation of the Code's anti-discrimination provisions has been established, the test puts an onus on the service-provider allegedly engaging in discrimination to illustrate that any accommodation of the complainant would result in "undue hardship". Could the K of C have permitted outside individuals to run the reception, so that it wouldn't seem as if the K of C sanctioned the event? Could the K of C removed any of its paraphernalia from the hall to effect the same end? If the K of C was concerned about activities occurring in the hall that may violate tenets of its religion, why would it advertise the hall's availability to the public? All of these questions are ones that could be considered at this stage of the inquiry into undue hardship.

It is likely that the K of C would have difficulty establishing that such a refusal to let the hall to the couple was reasonable given the recent history of Canadian Human Rights jurisprudence, especially given courts' high threshold for what constitutes undue hardship.

As I earlier indicated, it seems that the only course of action of which the K of C could avail itself, in order to succeed, would be to challenge an adverse tribunal ruling on the grounds that it violates the Knights' freedom of religion under the Charter of Rights.

This saga is yet another sad illustration of the excess of Canadian Human Rights Codes--that an attempt to legitimately assert your freedom of religion and conscience could be ruled "discriminatory", a setback that, even if overturned, could have a chilling effect on one of the liberties so fundamental to an open, liberal, and democratic society.

Ernie Eves RESIGNS!

Finally!