Op Ed: Why the Proposed “Fair Elections Act” is Unfair

Section 3 of the Canadian Charter of Rights provides that: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” The Fair Elections Act must ensure that this right is provided and provided for all citizens.

The proposed bill eliminates the ability of a registered voter to vouch for the identity of another to allow that person to vote, thereby disenfranchising many Canadians. The current Chief Electoral Officer, Marc Mayrand, estimates that eliminating the vouching provisions will affect over 100 000 voters, many of them Aboriginals living on reserves, as well as young people and seniors.

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Québec’s Gun Registry Appeal to the SCC

There is no shortage of tension between the federal Conservative government and the province of Québec.

Matters include: the Supreme Court of Canada Senate Reference; the intention to appoint Justice Marc Nadon to the Supreme Court of Canada as a representative from Québec; ongoing debate surrounding Bill 52 (Euthanasia); and of course, Québec’s gun registry appeal to the SCC, one of the most controversial law enforcement changes in Canadian history.

In its lifetime, the federal long-gun registry database has cost Canadians over $1 billion.

It’s important to place the long-gun registry and its purpose within an historical context. In 1993, the federal Liberal Party of Canada created the long-gun registry, in part because of the tragic events of December 6, 1989, the massacre of 14 women at École Polytechnique in Montréal, who were discriminated against because of their gender.

Fast-forward almost twenty years later. The Conservative government announces their intention to destroy federal long-gun registry data through Bill C-19: Ending the Long-Gun Registry Act. Québec vehemently opposes the motion. February 15, 2012, Bill C-19 passed third reading in a 159 to 130 vote in the House of Commons. The gun-registry database would soon be dismantled, including information on 5.6 million rifles and shotguns, and 1.6 million rifles registered by Québec residents. The Conservatives even had a count-down clock on their website prior to the vote. Québec remained outraged and expressed its intention to create its own registry.

Parti Québecois leader Pauline Marois expressed her discontent toward abolishment. Following the Conservative Party’s announcement of a cocktail party to celebrate the federal Bill’s passing, she commented that the dismantling of the registry was “indecent and unacceptable.” She also read the names of the 14 women killed in Montréal’s 1989 massacre.

Bob Rae, Interim Liberal Leader, expressed concerns about the cocktail celebration:

“All of us should be sensitive to the feelings of Canadians across the country,” Rae told reporters. “The more they celebrate, the more they distance themselves” from Canadians who don’t always agree with government policies.

Québec Conservative MP Maxine Bernier was of a different view and towed the party line:

“[...] my colleagues [the Conservatives] will have a reception this evening to underline the fact that we have realized another of our election promises,” Bernier said. “Certain colleagues want to meet with the people who have worked for many years to abolish the registry.”

After passing the House of Commons, the federal bill to scrap the long-gun registry passed the Senate on third reading on April 4, 2012, in a vote of 50 to 27.

On February 19, 2013, Bill-20: Firearms Registration Act was presented in Québec’s National Assembly by the Provincial Minister of Public Security Stephané Bergeron.

June 27, 2013, the Québec Court of Appeal overruled a Québec Superior Court ruling and sided with the federal government, rejecting Québec’s claims to preserve long-gun registry data. The decision stated:

“Québec has no property right to the data in the  [Canadian Firearms Registry],” the appeal court decision reads. “The data does not belong to Québec, and the provinces have no control over it.”

The decision also discussed the complex area of federalism:

“It quoted a recent Supreme Court ruling that said that as popular as ‘flexible federalism’ might be, it ‘cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state.’”

Québec’s Justice Minister, Bertrand St-Arnaud, responded within the 15-day appeal period with the intention to appeal the decision to the Supreme Court of Canada. Mr. St-Arnaud stated:

“All political parties represented in the national assembly defend this position and strongly oppose the federal government’s decision to abolish the firearms registry.”

November 21, 2013, the Supreme Court of Canada agreed to hear Québec’s opposition to the Court of Appeal decision. No reasons were given for the decision to hear the case, which is the norm. The case has certainly received widespread public interest:

“The decision of the court reaffirms the fact that there is public interest in studying Québec’s request for an appeal on the decision to destroy the records on 1.6 million rifles and shotguns registered in Québec,” [Coalition for Gun Control] president Wendy Cukier said in a release.”

Gun-registry data has now been destroyed from all provinces and territories except Québec. The province remains the birthplace of the long-gun registry, and may be the final resting place of an ongoing federal-provincial battle that will extend to 2014 — maybe beyond.

Surveillance & the Rule of Law: the Road Paved with Good Intentions

A month ago, Ron Deibert, director of the Citizen Lab at the University of Toronto, visited Green College at the University of British Columbia to speak about Cyber Swarming: Distributed Counter Intelligence and Surveillance as Global Civil Security . Deibert called his pitch a “model for a countermovement” against the troubling story of ever-increasing privacy rights violations by state actors.

(Side note: In contrast to my discussion of privacy in the abstract as a weak concept, Deibert’s sketch of the unfolding government surveillance saga looks at what is happening in the real world, now. Just wanted to state for the record that my objections to privacy as a rights-bearing tool are not intended to comment on current state actions.)

What struck me most in the talk was its legal subtext: written all over his narrative was the deterioration and subversion of the rule of law – and how such failures were ushered in the very idealism that birthed the internet. The irony is that it’s the same old “those who forget history are doomed to repeat it” story we never seem to fully grasp. I want to take a moment to scrutinize Deibert’s history from a legal perspective, in the spirit of thumbing my nose at this stupid pattern. I think this is something we need to do more often, so that we learn to recognize the signposts of going down the same treacherous roads before we embark on them.

The Background: the promise of a legal vacuum / a space devoid of legal constraint

So let’s get into the history. Before the swollen constellation we know as the interwebs looked like it does today, Al Gore was a figure instrumental in pushing us in towards this model. He advocated for the consolidation of various unconnected networks by spearheading the High Performance Computing and Communications Act. While he used government to help build the apparatus, he also, according to Deibert, deserves credit for the initial push to extricate government forces from its administration.

As a result, thanks at least in part to Gore, the internet flourished in a space largely devoid of law. The ideology behind this approach was utopian: we wanted the internet to be a free space because we thought that its exemption from law was a safe social experiment. It was new and not terribly important to our daily lives at the time, so why not futz around? It could be a place for unrestricted innovation, collaboration and sharing.

We couldn’t really conceive then that practices taking place in a virtual world might infiltrate the real world irreversibly, and that partly as a result, internet-based practices could be powerful and dangerous. In this context, it gradually accumulated our dependency.

The evolutionary morphing of “security threats”

Deibert identifies 9/11 as the game changer when it came to how state intelligence agencies thought about information and surveillance. Before, says Deibert, it was a “spy versus spy” sort of world – governments against governments. 9/11 saw the coming of age of The Terrorist Threat. As a dispersed and slippery malice, it caused spy agencies to turn away from states and towards their citizens. This movement was exacerbated by the fact that 9/11 was widely characterized as an intelligence failure. It changed the conversation: since there were hints that weren’t picked up on, adequate surveillance technology was clearly available. In hindsight, we thought properly executed violations of privacy seemed like a small price to pay for the now-extinguished lives of thousands of Americans.   

So we’ve got roughly 2.5 conditions here necessary for the perfect storm of government surveillance active today:

  • the growing relocation of commercial and interpersonal communication from other communicative technologies onto the web (and the means to track it) and
  • the primary focus of a threat to national security now located at the situs of the individual rather than the state

It’s easy to see now how what looked at first like a legal haven could have been better described as a vacuum: through the tragedy of the commons, the lowest common denominator of government and private action rushed in. Eventually.

In 2002, American John Poindexter (of Reagan-era scandal fame) championed a bill to launch the Total Information Awareness program, which failed in Congress partly as a result of his connection with it. The program aimed to develop capacities to

“turn everything in cyberspace about everybody …  into a humongous, multi-googolplexibyte database that electronic robots will mine for patterns of information suggestive of terrorist activity,”

as an article from the New Yorker in 2002 by Hendrik Hertzberg describes. But, Deibert points out, the bill’s failure in congress didn’t stop the program from moving forward. It got atomized into different projects and black-budgeted.

Regardless of how commonplace a practice like this might be, I would like to pause here and marvel at just how repulsive this is to a democratically-minded palate: if Congress tells you to bugger off and take your horror-house program with you, you bugger off. I thought that that’s what following democratic procedure means. You don’t add food dye to your rotten meat, repackage it and send it back to the marketplace.

The private sector and state intervention: a waltz

With the public hand of government extracted from the internet, it is now (and has always been) run by private companies.

What do you do if you are a private company and there are no rules?

Deibert offered a couple of case studies, I’ll only mention one here. He pointed to the oft-downplayed Green Revolution or Twitter Revolution in Iran, which happened in 2009, awhile before the Arab Spring is said to have kicked off. When it became clear that Twitter was an indispensable vehicle for the protests, the Iranian government sought and obtained “lawful intercept capability” from Nokia to figure out who was associated with which incendiary tweets. Then came arrests, and the movement was quashed pretty quickly.

It’s easy for us chastise Nokia for complying with Iran’s ask. But think about it: what was this company supposed to do? You’re in an internet with no rules! As Nokia, you have the authority figures of a government knocking at your door, and no playbook to go by except maybe some ethical queasiness. But up against that is the potential threat of getting your business shut out of an entire country.

This is exactly the scenario that government intervention, in the form of legislation, is designed to prevent (presuming, of course, that the legislation we would like to see should have come from Nokia’s home turf). Since we never designed corporations to have moral compasses, it is the job of legislation to let them know where the limits are. Without limits, the worst request is going to get complied with.

A fairly short interval gets us from this point to the government surveillance nightmare we are currently staring down. Thanks to the Snowden saga, Deibert says, countries around the world are taking this government surveillance style and running with it. An activist from Bahrain is arrested, tortured, and presented by his government captors with transcripts of his Skype conversations. The Ethiopian government has used spyware against an opposition party prior to an election. Using the Chinese version of Skype, if you try to type in phrases like “Tiananmen Square” you just can’t.

Garret Hardin wrote “The Tragedy of the Commons” in 1968. I appreciate the difference between the idea of using up a resource and governments abusing power in a space without legal constraints, but I think there is sufficient similarity to merit the comparison. We put in legal frameworks because we want to set a floor for standards of behaviour, government or civilian. Undoubtedly internet culture wouldn’t look the way it does if we had done this from the get-go. What is more important?

All I am saying is, I think it’s fair to demand that when we are presented with a new resource, we don’t approach it with the kind of naïve idealism that leads us to unleash it with insufficient restrictions on behaviour when we have seen this pattern before.

La nouvelle loi ougandaise contre les homosexuels dénoncée de toute part à l’ONU

L’Ouganda a adopté il y a 2 jours une nouvelle loi criminalisant encore plus l’homosexualité dans le pays. Cette loi, qui constitue une violation manifeste du droit d’être protégé contre toute forme de discrimination, a vite été condamnée par différentes instances onusiennes ainsi que par plusieurs gouvernements occidentaux.

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Bill-52 (Euthanasia) Debate Continues

Debate around Québec’s Bill-52 (Euthanasia), introduced by the Parti Québécois, continues. For background information, read a previous entry.

Professor Margaret Somerville, a leading expert and founding Director of the Centre for Medicine, Ethics and Law at McGill University, recently wrote an opinion editorial in The Globe and Mail: Why euthanasia and assisted suicide must remain legally prohibited.” She writes extensively on the lesser debated “life concepts,” and references the Carter et al. v Canada case out of the British Columbia Supreme Court, in which the Supreme Court of Canada has since granted leave. She concludes:

Where we disagree in the euthanasia debate is what honouring respect for human life requires. Those who equate loss of independence with loss of dignity believe that what they perceive as a quality of life not worth living justifies euthanasia. Those who see all humans as having dignity just because they are human, believe that respect for life requires that we do not intentionally kill another human being or help them to kill themselves, which means that euthanasia and assisted suicide must remain legally prohibited.

Other opinion pieces, including Margaret Wente’s “Assisted suicide — what could possibly go wrong?” have also weighed in. She mentions Canadian support of the right-to-die is strong, but also voices concerns about the liberalism the laws can sometimes take, and have taken, in countries such as Belgium. If Bill 52 passes the National Assembly the end of February 2014, prior to an expected provincial election, the euthanasia law would be the most liberal in all of North America.

Wente mentions the original intent of euthanasia laws in progressive countries such as the Netherlands and Belgium was for “unbearable suffering and incurable illness,” but since then many physicians “are now killing people they have barely met,” including patients who suffer from physical and mental illness, such as anorexia or depression.

This month, Belgium went even further — legislating the rights of children to access euthanasia, lifting age restrictions entirely. Concerns surrounding consent and capacity remain. Though we may not all agree with various pro and anti-euthanasia arguments, Wente concludes that it’s clear “our ethical dilemmas are only beginning.”

Op-Ed: I Am Your Voice Venezuela! #SOSVenezuela

Last Wednesday, students from across the country came together to mark Venezuela’s National Youth Day with peaceful public demonstrations to express their growing discontent with the current socialist government regime of President Nicolas Maduro.  Despite its wealth in oil reserves, Venezuelans today are experiencing soaring rates of inflation (over 50%) as well as widespread insecurity and shortages of essential goods.  Crime has also become a pressing concern, as homicide rates within the country have reportedly quadrupled in the past fifteen years.  Through public protest and assembly, Venezuelans are seeking to call attention to this social and economic crisis, as well as government attempts to silence their expressions of dissent.

The situation reached its boiling point this past week, as protesters clashed with police and government supporters who were trying to forcefully put an end to these demonstrations.  This has resulted in many students and individuals being arrested or detained, while others have been seriously injured and even killed (See CNN iReport for stories, video and photos from the conflict within the country). Read the rest of this entry »

UK News: Court rules Journalist’s Detention was Legal under Terrorism Law

Last August, former Guardian journalist Glenn Greenwald’s parter David Miranda was detained and interrogated for nine hours at Heathrow Airport under the Terrorism Act of 2000 during which time Miranda’s lawyers argue his mobile phone, laptop, DVDs and other items were seized. Today, the Divisional Court of the UK High Court of Justice admitted that Miranda’s detention was “an indirect interference with press freedom,” but held that it was justified and legitimate due to “very pressing” issues of national security.

At the time of his detention, Brazilian national Miranda was transporting secret documents leaked by NSA whistleblower Edward Snowden between two journalists: Laura Poitras in Berlin and Glenn Greenwald in Rio de Janeiro. At the time Greenwald worked for The Guardian, but now both are journalists for newly-launched The Intercept.

Reaction to this morning’s ruling by civil liberties and press freedom groups has been widespread and critical.

Antoine Héry of campaign group Reporters Without Borders said:

“Once again, press freedom in the UK suffers from a confusion between journalism and terrorism by the authorities.”

Vincent Peyrègne of the World Association of Newspaper and News Publishers said:

“The future of serious public interest journalism in the UK has been dealt a serious blow by the court’s refusal to recognise that journalists also have a vital role in defending democracy.”

Leading civil liberties group Liberty stated in a press release:

“If such a barefaced abuse of power is lawful then the law must change. Miranda’s treatment showed Schedule 7 for what it is: a chillingly over-broad power, routinely misused. People are held and interrogated for hours, their property confiscated while they’re swabbed for saliva – all without any suspicion that they’ve done anything wrong.”

The Guardian newspaper was also critical and said:

“The judgment takes a narrow view of what ‘journalism’ is in the 21st century and a very wide view of the definition of ‘terrorism’. We find that disturbing.”

Members of the UK government, past and present, have also weighed in.

Former Tory shadow home secretary David Davis MP expressed strong criticism:

“This case is yet another example of heavy-handed overuse of terrorism powers that parliament entrusted the agencies with, notably stop and search, retention of DNA and the increasing mass storage of our metadata.  We have to question whether these actions of government agencies are actually increasing the security of the British people more than they are undermining our traditional liberties.”

Julian Huppert, a Liberal Democrat member of the home affairs select committee, suggests the real issues lies with the legislation itself:

“We have already made some changes to the law which are about to take effect, but I think there is still more to do.”

The Metropolitan Police who were responsible for Miranda’s detention, however, have welcomed the decision. Deputy Assistant Commissioner Helen Ball said:

“This was a very important case that has attracted considerable public attention. Schedule 7 of the Terrorism Act 2000 is vital in helping to keep the public safe. We are pleased that the court’s judgment states that “the stop was lawful; it was also on the evidence, a pressing imperative in the interests of national security’.”

Miranda is expected to appeal, but it is not yet known whether his appeal will be allowed. In statement released by The Intercept, Miranda said:

“I will appeal this ruling, and keep appealing until the end, not because I care about what the British government calls me, but because the values of press freedom that are at stake are too important to do anything but fight until the end.”

Beyond the ruling on the legality of Miranda’s detention, the judgement also reveals important insight into the level of surveillance experienced by journalist. Paragraph 9 and 11 of the judgement suggest that the GCHQ (UK version of the NSA) has been actively monitoring communications between Journalists Glenn Greenwald, David Miranda, Eward Snowden, and Laura Poitras.

Miranda’s case is an important test of the UK’s attitude towards journalism in an era of mass surveillance and expansive anti-terrorism legislation.  In my view, it strongly undermines freedom of the press protections by allowing journalists who expose whistleblowers’ secrets to be branded as criminals, or even terrorists, themselves. In the balance between National Security and Freedom of the Press, we must never underestimate the importance of information.  We must value the profession of journalism and afford them the protections necessary to safely and confidentially carry out their jobs, because a true democracy is an informed democracy.

Québec’s Bill-52 (Euthanasia) & SCC Implications

Conflict at the end-of-life, particularly between families and healthcare providers, involves many complex factors: differing opinions surrounding a patient’s prognosis, cultural differences, moral values and religious beliefs, associated costs, internal family dynamics, and of course, legal ramifications.
Recently, Véronique Hivon, Minister for Social Services and Youth Protection for the governing Parti Québécois in Québec, introduced Bill 52: An Act Respecting End-of-Life Care.
The purpose of this Act is to ensure that end-of-life patients are provided care that is respectful of their dignity and their autonomy. The Act establishes the rights of such patients as well as the organization of and a framework for end-of-life care so that everyone may have access, throughout the continuum of care, to quality care that is appropriate to their needs, including prevention and relief of suffering.
Bill-52 has sparked immense debate throughout Québec and across Canada. National Assembly legislators and Québec civil society continues to engage in a polarizing debate as Québec aims to become the first province to legalize euthanasia. The bill, expected to pass as early as this week, will have far-reaching implications for healthcare decision-making for families, healthcare providers, religious groups, and others.
Currently, the U.S. states of Washington, Oregon and Vermont allow physician-assisted suicide, but not euthanasia, when patients are within months of dying; other countries, such as Belgium, Luxembourg, and the Netherlands, have similar laws. In fact, Belgium recently became the first country to expand euthanasia laws to children (Feb. 13, 2014.)
If Bill 52 passes, it is likely to make its way to the Supreme Court of Canada. Other cases have been reviewed in the past. One of the most seminal decisions involved Ms. Sue Rodriguez, a woman who suffered from amyotrophic lateral sclerosis (ALS) and, in 1992-93, challenged the validity of Section 241(b) of the Criminal Code. At both the British Columbia Court of Appeal and British Columbia Supreme Court Rodriguez claimed this provision violated Sections 7 (the right to “life, liberty and security of the person”), 12 (protection from “cruel and unusual punishment”) and 15 (equality rights) of the Charter. The case made its way to the Supreme Court of Canada. The Supreme Court rendered a 5-4 decision on September 30, 1993, dismissing Rodriguez’s appeal, and upheld the status quo — prohibiting rights to physician-assisted suicide. In 1994, Ms. Rodriguez ended her own life with the assistance of an unknown physician.
On April 21, 2010, the Bloc Québécois-proposed Bill C-384: An Act to amend the Criminal Code (Right to Die with Dignity) was defeated at second reading by a vote of 228-59, after introduction by MP Francine Lalonde. There was a free vote, which received support across party lines.
The high-profile case raised many ethical and constitutional dilemmas, which are not unique to Ms. Rodriguez’s case or Bill 52 before the Québec National Assembly today, but the issue has certainly received renewed national attention. On January 16, 2014, the Supreme Court of Canada agreed to hear a British Columbia couple’s appeal, from a lawsuit originally filed in 2011 with the assistance of the BC Civil Liberties Association (BCCLA). The original plaintiffs, Lee Carter and Hollis Johnson, were members of Kay Carter’s family, who sued the government on behalf of their relative who travelled to a Switzerland clinic in 2010 to die by choice, after Kay Carter was denied physician-assisted suicide in Canada. Gloria Taylor, a woman with ALS who later joined the plaintiffs, died in 2012. The British Columbia Supreme Court overturned the assisted-suicide law, which was later challenged by the Canadian government and reinstated, in a 2-1 decision, by the British Columbia Court of Appeal. The BCCLA has now been granted leave from the country’s top court. Grace Pastine, litigation director with the BCCLA stated:
“There are few rights more fundamental, or more deeply personal, than the right to determine how much suffering to endure and whether to seek a doctor’s assistance to hasten death if living becomes unbearable.”
Clearly much remains to monitor at the Supreme Court. This entry has been adapted from a recent academic paper written by Matthew Ponsford, which can be accessed via www.uottawa.academia.edu/Matthew Ponsford.

Québec’s Secular Charter: Former Supreme Court Justices Speak Out

It is a topic seldom discussed in Canadian politics: the lives, and influences, of former Supreme Court of Canada justices.

The power SCC justices can possess while retired from the bench is being displayed in full-force with the clashing views of former Supreme Court justices Claire L’Heureux-Dubé (1987-2002) and Louise Arbour (1999-2004).

The comments stem from Québec’s controversial proposal of Bill-60: “Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests” introduced during the 1st session of the 40th legislature of Québec’s National Assembly.

Louise Arbour published an Opinion Piece in La Presse, entitled “Choisissons la générosité” (“choose the generosity”). Ms. Arbour stated:

“Let us remember how easy it is to restrict the freedom of others, especially when this initiative comes at no cost to those who advocate it.”

But Claire L’Heureux-Dubé, called to the bar in 1952, has a different view:

“In my opinion, religion is foremost an internal commitment,” she said. “Religious signs are part of the displaying of religious beliefs, and not part of the practice of religion. All state employees are subject to standards of loyalty and restrictions on their freedom of political speech, which was upheld by the courts. Why would the freedom of religious expression be different?”

Full commentary from The Globe and Mail‘s article can be viewed here. What do you think of the Parti Québécois’ Bill-60?

L’ONU inquiète de la situation des droits de la personne en Égypte

Le Haut-Commissariat aux Droits de l’Homme (OHCHR) de l’ONU est très préoccupé par les troubles civiles qui perdurent en Égypte et par la situation des droits de la personne qui semble se dégrader dans le pays. Ce-matin, un porte-parole de l’organisme s’inquiétait des récentes arrestations de journalistes dans le pays et appelait le gouvernement à ne pas restreindre indûment la liberté d’expression. En début de semaine, c’était la Haute-Commissaire aux Droits de l’Homme elle-même qui condamnait les violences dans le pays et appelait tant les manifestants que les forces de l’ordre à faire preuve de retenue.

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