Aux Armes (or Vancouver)

Well, yours truly and Domina are heading to the left coast this weekend for some revelry on this Canada Day weekend.

When I return, I may post about this week's marriage legislation. If I'm not entirely sick of the issue.

Call the Spade a Spade: The Grits Invoked Closure on the Budget Debate

Well the media is all over the Opposition Tories this morning for getting "bushwhacked" and "outmanoeuvered" by the conniving forces of the Grits, Bloc Quebecois, and the NDP, who all voted to end debate on the 1970's-style NDP Budget late last evening. The budget subsequently passed with little fanfare.

I find it ironic that Paul Martin came to power promising to eliminate the "democratic deficit", one of the symptoms of which was the frequent invocation of closure to end debates in the House before they had run their course--a tactic elevated to an art by PM emeritus Jean Chretien.

Whether last evening's machinations were procedurally different than "closure" or not, the outcome was the same. No debate, no amendments, just a vote.

If it smells like closure, looks like closure, and stifles dialogue like closure, then, dammit, it's closure.

It's unfortunate that Canada's complacent media won't call the spade appropriately.

THIS JUST IN: Paul Martin Acknowledges His "Devout" Catholicism

While taking nothing away from the blistering and articulate indictment of the Prime Minister delivered by my colleague Domina below, I'll nevertheless point out that the article also reports that Martin told CKNW Radio in Vancouver Monday that he is "actually a very strong Roman Catholic".

Where is the Globe and Mail's hysterics? If men of religion are not fit to be Tory candidates in marginal Tory ridings, then certainly the land's highest office cannot be occupied by a Prime Minister who is "devout(ly)" Christian.

But alas, this is Canada. Only Tory Christians are extremists wishing to impose their "hidden" socially conservative agenda on an unsuspecting Canadian populace, as the Globe and Mail so frequently embellishes. However, Rev. Bill Blaikie of the NDP and Liberal Prime Minister The Devout One can practice and preach their religiosity with impunity, and without comparable accusations launched at their motivations for political involvement.

I can't even begin to understand the logic here.

On Berries and Bureaucracy

This lovely story illustrates the contortious logic that plagues decision-making within local governments--those venerable practitioners of amateur-hour democracy.

To summarise, berry farmers on Vancouver Island often face labour shortages during their crops' harvest period. When one farmer was unable to depend on his traditional sources of labour for the harvest, he decided to hire street kids from Victoria, whom he acknowledges do an excellent job.

The problem with keeping the street kids on as labourers is that they need to catch a rather early bus in order to get to the berry patch at an appropriate time. The farmer's solution--provide temporary living quarters at the farm in order to avoid the lost productivity of the kids' long commute.

Normally, the story would end there. But, as with most jurisdictions, our farmer had to present his case to a municipal Council in order to get approval to construct these living quarters. One would think that the Council would want to eliminate any procedural hurdle in order that a) the farm maintains its economic viability by having a timely harvest, b) to give otherwise unemployed street inhabitants both a place to stay and an honest day's work and c) take a social problem (homelessness) for which the municipality is largely responsible off of their hands.

A win-win situation for the city, you might state. Instead, here's what happened at the meeting at which this issue was considered:

"It isn't the first time Oldfield and the municipality have been around the block, and sure enough, Monday's encounter was fractious. Councillors liked the idea of helping street kids but some were concerned about the permanence of the structures."

And, to top off the non-solution:

"In the end, the application was forwarded to the Agricultural Land Commission, with council scheduling a special meeting for next Monday to deal with the possibility of interim approval."

Instead of resolving the issue to the benefit of all involved, Council got entangled in the bureaucratic mess it set for itself, instead of doing the right thing: getting out the way by letting a landowner maintain the productivity of his land while simultaneously alleviating a significant social problem. Does anyone else see the problem with this picture?

Chaoulli: The Supreme Court Case of the Decade

Well, there you have it. The Supreme Court of Canada has ruled that state prohibitions on private health care insurance are unconstitutional.

Some thoughts:

1. This affects every province’s health care system. While the decision is only applicable in Quebec, other provinces will have to follow suit in terms of a) increasing access to medicare by substantially eliminating waiting lists or b) simply removing prohibitions on private insurance. Any province that fails to undertake meaningful reform will likely be subject to a comparable Charter challenge.

2. The Court has decided to take a more intrusive, supervisory role in the administration of social programmes. If the comments of the Chief Justice and Justice Major with respect to the provision of public health care of a “reasonable standard within a reasonable time” are transposed into other circumstances, a viable argument could be made to expand state administration of social programmes where there is no clear alternative private option for their delivery. This should be cause for concern, especially considering recent decisions of the Court (Gosselin, Auton) which have been largely deferential to the choices made by parliamentarians in the provision of social programmes.

3. Don’t think that this decision won’t get overturned. With new Justices Abella and Charron having historically taken a more collectivist approach to constitutional adjudication, if a similar case wound its way through the courts it's conceivable that the minority in Chaoulli could become a majority decision, as neither of these two participated in the present case. With Justice Major departing the Court soon (he voted with the majority), this throws the future of comparable jurisprudence into doubt.

4. The Court continues to be strategic and political in its adjudication of sensitive political issues. That the author of the majority decision (Justice Deschamps) did not address the issue of the Charter of Rights violation illustrates one of two things: a) that Justices from Quebec are reluctant to use the Charter to strike down Quebec legislation and b) that its very likely this is how the rest of the majority swung Deschamps’ vote. That the other Quebec judges were extremely sympathetic to the prohibition on private insurance *because that’s what the Quebec National Assembly decided was best to ensure the viability of the public system* substantiates the view that this decision was as much about federalism politics as it was about health care. All the more ironic is that Deschamps *acknowledged* that the same tests to determine the constitutionality of the legislation apply under both the Quebec and Canadian Charters, but for some reason decided completely neglect any decision based on the latter, which would have made the decision binding across Canada.

Like many opponents of statist health care, I screamed with glee this morning when I read the headlines. But the decision is a sad indictment of our country’s legislators. Instead of trying to convince the public that having a mixed public-private health care system would address many of health care’s problems, politicians took the easy route and shoveled money into a black hole, while countless have died or been permanently incapacitated waiting for health care that will never come. The Court's intervention is thus a stinging rebuke of the state of Canadian politics.

Chaoulli: The Supreme Court Case of the Year

Thursday morning, the Supreme Court of Canada will release its ruling in Chaoulli v. Quebec, in which the constitutionality of various provisions within Quebec medicare legislation--prohibiting the provision and purchase of private health care--was challenged. The claimants argue that the impugned legislation compromises the Charter of Rights guarantees to life, liberty, and security of the person insofar as the legislation creates a system plagued by waiting lists for important medical procedures.

While the two lower courts hearing the case upheld the legislation’s constitutionality and dismissed the challenge, the outcome at the High Court is far from clear. That the Court has taken so long to decide this case (it was heard one year ago) suggests that it is wrestling with internal divisions, while probably also recognizing the massive ramifications resulting from its judgment, no matter which way it rules.

I intended to offer a full analysis of the case as well as potential outcomes, but navigating once again through the "life, liberty, and security" jurisprudence has reinforced my view that the decision cannot be predicted. Sometimes the Court argues that s. 7 rights only relate to "legal rights" (ie. generally infringed during the criminal law process), while other cases take a different view. Some cases use "context factors" to determine whether the violation of life, liberty, and/or security is "in accordance with the principles of fundamental justice"; the central context factor being the balancing of collective and individual interests. And so on...

I've endeavoured nonetheless to outline a few of the possible decisions that the Court may make tomorrow:

1. Status Quo, no deviation from the Quebec Court of Appeal decision.
2. Status Quo, and a recognition of a positive-state obligation to provide health care.
3. Allowing the Appeal but affirming the constitutionality of the public monopoly on health care, by using the remedial "reading in" or "reading down" power.
4. Allowing the Appeal and ruling that medicare legislation is unconstitutional using the remedial "strike-down" power.

About the only predictable thing, ultimately, is the unpredictability of the decision. For fun, I predict a tight 4-3 decision, with Chief Justice McLachlin and Justices Binnie and Major voting together, and Justices Bastarche, Lebel, and Deschamps forming the other faction. I have no idea how Justice Fish will vote nor with whom he'll vote.

ALSO: For some background, check out Jaworskiblog's special Chaoulli site, which is promising frequent updates over the coming days.

Getting a Grip on S. 810

For some reason, Bellator accuses me of being "soft on crime" despite my calls for tougher sentencing (ie. real life imprisonment) for criminals of the ilk of Karla Homolka.

Central to his argument defending section 810 is that it enshrines part of "the state's most sacrosanct duty of protecting its citizens from harm".

The problem here is that the restrictions meted out to Holmolka hardly effect the end of protecting the public. Requiring her to report to police before she travels? Showing up at a police station once a week for 30 seconds to say hi? No consumption of already illegal drugs? These restrictions don't prevent recidivism, especially given that for 6.99 days of the week Homolka is not supervised by the justice system. While one might argue that the measures which she must obey *don't go far enough*, the fact that the measures statutorily expire after 12 months is proof that 810 does nothing for its purported goals. The criminality of supposedly dangerous offenders doesn't expire after a one-year warranty.

In fact, the *only* way to achieve these goals is a full term of imprisonment, and perhaps greater statutory restrictions of plea bargaining of the nature we saw in this case. While some want to spill ink and waste time defending a Criminal Code provision which at best doesn't even effect the salutary ends promoted by its defenders, my preference is to to advocate real measures to protect the public rather than commenting on the Code's pretty window dressing.

Real reform of Canada's justice system cannot occur in the face of such acquiescence to status quo half-measures just because it's better than nothing.

On Karla Homolka, the Criminal Code, and the Restriction of Liberty

With the Quebec Superior Court ruling that the she does pose a risk of re-offending, it appears that, after all, Karla Homolka will have restrictions placed upon her once she completes her penitentiary sentence for rape and murder this summer.

The restrictions, authorised by s. 810 of the Criminal Code, provide for, among other things, a requirement to notify police of her travel arrangements, a prohibition on coming into contact with teenagers and individuals with a criminal record, and a ban on taking employment where certain medications and drugs are dispensed.

Though I've never really considered post-sentencing restrictions before, I have serious reservations about sanctioning them. Restricting one's liberty after the completion of one's sentence repudiates central tenets of the rule of law and fundamental justice, such as having prior, clear knowledge of the punishment for an offence, and that the punishment not be vague, overbroad, or indeterminable.

One might respond that offenders frequently have restrictions placed on their movements and whom they may contact. However, often this is effected while an offender is on probation or on parole, id est as part of the sentence originally meted out upon conviction.

Given that Canadian courts often throw out convictions or acquit individuals for *minor* violations of their liberty interests (cf. R. v. Mann--accused acquitted of trafficking pot on appeal, as a protective pat-down search undertaken by an officer was not 'minimally intrusive', but otherwise constitutional), it's amazing how the same state can duplicitously support such onerous conditions *for someone has fully completed a sentence*. This smacks more of satiating a bloodthirsty public rather than the advancement of justice.

S. 810 of the Code permits the state to restrict one's liberty just prior to having completed one's debt to society, when there are reasonable grounds "to fear that the [offender] will commit a serious personal injury offence". Since this can be determined partly based on her criminal past, the question here is not whether Holmolka should or shouldn't have restrictions placed upon her liberty, but whether she should have her liberty at all. My preference would be to see s. 810 fall into disuse for violent offenders like Homolka, whose crimes justify a permanent restriction on their liberty--through *sentencing* them to a lifetime of imprisonment, instead deciding *after the fact* that twelve months of state-imposed lifestyle conditions are necessary for the public's protection.

Blogging the Chain Letter

After having viewed this on Daifallah(blog) not six hours ago, the chain letter gets circulated to us. While we at PLVQ are not proponents of schemes pyramidal, we will nonetheless comply with the request of ALW, who forwarded said letter to this blog.

But we shall do something different: our loyal readership can GUESS the responses to the following questions, for each of Domina, Bellator, and Patronus, and post them in the comments section. Any near-accurate responses may be redeemed for either beer or beef should individuals wish to come to Alberta this summer to visit Domina and Patronus.

The questions:

Number of Books That You Own:

Last Book Bought:

Last Book I Read:

Five Books that mean a lot to me:

Answers to be posted soon!

On the EU Constitution

Now that the Dutch, following the lead of the French, have resoundingly rejected the adoption of the proposed EU Constitution, it's back to square one for the Brussels bureaucrats and Europe-wide political elites who have spent their lives and much of their political capital pursuing the cause of European integration.

This is a good sign, as the constitution took some of the worst provisions regarding "rights" from effectively non-binding international law and attempted to enshrine them into the law of Europe. But the text of the constitution goes further, elevating some positive rights to entitlements. Some highlights:

...The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices.

...In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources.

...Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.

While these are all grand ideals, the constitutionalisation of universal entitlements does nothing to direct state assistance to those who require it most (i.e. not the rich). At the same time, the attenuation of every conceivable social programme to a "right" only denigrates the very concept of rights for which much ink and blood has been spilled over the course of European history.

The drafters need to go back to the drawing board on this one, folks.

Damned Templates

...It seems that some versions of Internet Explorer are messing around with display of our beloved site's content. I'll endeavour to fix this tonight.