Category: Law

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Law Society goes totalitarian

 

As the shit of post-modernism continues to ooze out of the universities, more and more institutions fall beneath the advancing sludge. My long-lasting distaste for the Ontario bar association (the Law Society of Upper Canada) is now more fully justified. Lawyers in Ontario are now being required to confess their sins of racism and repent.

LATEST UPDATE – September, 2017
Lawyers and Paralegals – Here’s what you need to KNOW AND DO for 2017:
1. Adopt a Statement of Principles  (mandatory)
2. Create, Implement, Review a Human Rights/Diversity Policy  (mandatory for legal workplaces of 10 or more licensees)
3. Participate in the Inclusion Survey (non-mandatory)

Lawyers are not merely being asked to implement programs they may not believe in, they are being asked to sign acts of confession that the policies they are being asked to implement are true, just, and appropriate. Jordan Peterson’s concern for being made to say imaginary pronouns invented by transsexuals was but the harbinger of a totalitarian impulse that will soon affect us all.

The Law Society writes:

Overview

All lawyers and paralegals play a vital role in Accelerating Culture Shift, one of 5 strategies adopted by the Law Society  to address the barriers faced by racialized licensees.

As part of this strategy you are required to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public. (Recommendation 3(1) in the Challenges Faced by Racialized Licensees Working Group’s Final Report)

The Law Society will ask licensees to report on this in their 2017 Annual Report.

This requirement applies to all Law Society licensees. A licensee is anyone who is licensed to practice law or provide legal services and includes retired licensees, licensees working outside of Ontario and licensees not currently practicing law or providing legal services.

Creating a Statement of Principles

The Law Society has developed resources to help in creating your personal Statement of Principles.

We have provided templates of two sample statements. To satisfy the requirement you may adopt and abide by either statement. Please feel free to modify the statements or create your own that meets the requirement. Statements of Principle must be in writing.

Principles:
To help achieve the objectives of valuing equality and enhancing diversity and inclusion, I have adopted this Statement of Principles.

No Discrimination or Harassment

I am aware that under the Human Rights Code every person has the right to be free from discrimination and harassment in employment.

I acknowledge my obligation not to discriminate against, nor harass, any person on the basis of the grounds under the Human Rights Code with respect to my employment of others, or in professional dealings with other licensees.

I acknowledge my obligation not to tolerate, condone, or ignore any form of Human Rights Code-based harassment or discrimination in my legal workplace, or in professional dealings with other licensees or any other person.

I acknowledge that the right to be free from discrimination and harassment applies to everyone at my legal workplace: clients, partners, associates, students, paralegals, legal assistants, or other employees.
Abide by Workplace Policies

I agree to review, understand and abide by all policies in my legal workplace that prohibit harassment and discrimination, and that encourage diversity and inclusion on the basis of the grounds set out in Human Rights Code or other grounds.

I will report any observations or allegations of harassment or discrimination.

If asked, I will cooperate in any investigation and complaints procedure at my legal workplace.

I will not reprise against, or threaten to reprise against anyone for making a formal complaint of harassment or discrimination, or for cooperating in any investigation.
Promote Diversity and Inclusion

To promote diversity and inclusion I agree to:

review, understand and abide by any and all of my legal workplace’s policies that encourage diversity and inclusion on Human Rights Code or other grounds;
encourage a culture of inclusion and diversity at my legal workplace, in order to help attract and retain the best talent and better serve my clients’ needs;
support strategies in my legal workplace (and beyond it, where appropriate) that prioritize diversity and inclusion on Human Rights Code and other grounds in hiring, promotion and retention decisions;
cooperate and engage in any efforts of the Law Society, my legal workplace and others to advance equality, diversity and inclusion in the legal profession and in the broader community;

Serve Clients/ the Public

I am aware that under the Human Rights Code, every person has the right to be free from discrimination and harassment with respect to the provision of services, including legal services.

I will provide legal services in a manner that is courteous and equitable, without discrimination or harassment.

I will ensure that no client or prospective client is denied services or receives inferior service on the basis of the grounds set out in the Human Rights Code.

I will respect both the letter and spirit of human rights legislation in professional dealings with other licensees or any other person.

 

Recall that this constitutes words being put into people’s mouths: you the Ontario lawyer are being required to sign your adherence to nebulous concepts such as diversity, inclusion, harassment and equality.

 

Let’s look at “equality” as the Law Society defines it.

Equality

The Supreme Court of Canada has held that equality is an “elusive concept” that “lacks precise definition.” * Equality does not mean treating all people the same for all purposes. In Canada, court decisions at all levels make it clear that both the Charter of Rights and Freedoms** and human rights legislation aim to achieve “substantive” rather than a “formal” equality.

Whereas “formal equality” involves “equal treatment for those in similar situations and different treatment for those in dissimilar situations” (‘treating likes alike’),” *** “substantive equality” does not always require treating all people the same.

Substantive equality, rather, is aimed at “recognizing and responding to difference and remedying discrimination and stereotyping.” **** It requires “acknowledgment of and response to differences that members of a particular group might experience” in order to be treated equally.*****
To be clear, it is substantive equality that human rights/diversity policies in legal workplace should be aiming for.

The Official Religion of our times is not Christianity. It is the religion of perpetual striving after equality, which is really equality of result, not of opportunity. It is an ideology that will provide endless opportunity for official interference in private affairs, the perpetuation of grievance, the cultivation of envy, and the violation of individual conscience. This is not accidental; it is its post-modernist purpose.

Wasserman Schultz and the DNC Imbroglio

 

Several relevant articles collectively enjoin the question: why is this not the subject of a special prosecutor?

  1. Media Blackout on class action suit against the Democratic National Committee and Wasserman Schultz

Lawyers in DNC Class-Action Suit ‘Perplexed’ by Media Blackout

2. Debbie Wasserman Schultz and the Pakistani IT scammers

3. Imran Awan case needs special prosecutor 100x more than  Russiagate

For all of Trump’s faults, and they are many, we have to keep reminding ourselves what a plague the United States recently avoided.

 

 

All your children are belong to us

In the category, you can’t make this up!

In the Canadian province of Ontario (which contains nearly 40% of Canada’s population), “child protection” bureaucrats may now remove that child from the parents’ care, in order to permit the child to express its chosen identity at variance from the dictates of biology.  Presumably, this could extend to allowing genital mutilation of the child as a so-called “sex change” operation despite the parents’ strong objections.

See this article by ARPA for details on Bill 89.

Charter mania

charter

 

I get creeped out by the relentless totalitarianism of Charterism; its tone-deafness, its self-referentiality, its inability to consider that there might be limits – not found in the Charter – to  the range and depth of its reach into private conscience and public behaviour.

Yesterday the Post printed an op-ed called “The Religious Hospital Problem”. It argued that the calculations of rights embodied in the Charter were such that the only correct conclusion was that a Catholic hospital had no right to refuse a patient an “assisted death”.
The hospital had a trust relationship with the patient, and that the trust relationship trumped the religious rights – if any – of a Catholic institution.
The authors, Richard C. Owens and Ellen Wiebe, concluded:

Should Shearer really have had to accommodate someone’s religious convictions to the extent of the awful pain and degradation he suffered? No. That is not to say a Catholic doctor must be required to assist someone’s death — except perhaps in unusual circumstances. But an institution, per se, has no religion. It just happens to be under the control of those who wish to use it as a platform for advancing their beliefs. As such, every Catholic hospital should have at least one non-Catholic doctor with unimpeded access to terminal patients who is free to assist patients with their deaths. These rights must apply to patients of all creeds — including Catholics themselves.

1. An institution has no religion,it is merely the platform for the advancement of beliefs.

2. Therefore, since it has no religion, every Catholic hospital should have at least one non-Catholic doctor able to provide assisted deaths to allow for the proper exercise of patients’ rights to be killed.

3. A Catholic doctor (meaning a professed Christian) may, in circumstances not described but certainly not determined by him, be required to assist someone’s death, that is, stick a needle in someone’s arm and kill them, thus violating the Hippocratic oath and his conscience as a Christian.

In short, your religious convictions are without any weight or relevance to your requirement to be the obedient servant of the will of the state, as determined by the Supreme Court.

The Supreme Court has already determined that denying assisted death would violate a citizen’s rights under section 7 of the Charter.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 Thus, a right not to be deprived of life, liberty and security of the person now includes the right to call in a doctor and have him give you a needle to kill you. Your right becomes his obligation.

And the doctor’s right to refuse you this unction is close to non-existent.

It is the same all over in any discussion of rights under the Charter. It is a totalitarian mental framework erected by lawyers, to place over their heads, and prevent them from thinking in any terms outside the framework erected by the Charter.

If a Canadian parliament passes a law, it may be declared to be outside its legislative competence, by reason of Charter violation or that it violates the division of powers between federal and provincial levels of government. But if the Supreme Court creates a law, there is no appeal. And these people are making bad law every month or so, as humans do, and only the very slow passage of time, and the appointments process, will reverse or hinder previous law-making. They are not evil, nor are they badly intended. The particular hell to which we are being sent is paved with the noblest of intentions, namely the Charter. My concern is that we have appointed a Supreme Court to do what no humans can do, which is to be infallible. And being human, they understand they have unchecked power and are using it to advance an agenda of their own devising.

William Buckley’s famous phrase was that he would rather the United States be governed by the first four hundred people out of the Boston telephone book than by the faculty of Harvard University. I feel the same way about Canada’s Supreme Court.

Sean Gabb on why we need to change the subject

Sean Gabb is a British intellectual who assaults the encroachments on freedom from a libertarian point of view. He is not an Ayn Randist; his views are much more historically informed, and I have paid tribute to him elsewhere in this blog.

His latest target is the proposal to put through an electronic surveillance bill in the British Parliament.

First, he draws attention to the complete failure of any analysis of the failure of statist measures to achieve their objectives. Reviewing the literature from 1930 to 1970, he concludes that every criticism of statist measures in the UK that could have been made was made, correctly, and it had no effect. The state continued to expand regardless of any criticism no matter how well reasoned and persuasive.

He asks why this was so.

Gabb writes:

To make use of Thomas Kuhn, there is, at any time in any society, an overall paradigm that both explains the world and provides an agenda for action. For a very long time in this country, the paradigm has been statist. The justifications may overlap and change from time to time – the welfare of the working classes, racial and sexual equality, anthropogenic climate change, the demonization of Moslems and paedophiles and the unhealthy, and so forth. But the paradigm is one that accepts an enlarged state as both inevitable and desirable. Books like A Diet of Reason and Education and the State do no more than draw attention to anomalies….

If our present social paradigm is to be destroyed, it is necessary to make people lose interest in it. I cannot be bothered with a minute critique of the Investigatory Powers Bill because, as said, no one important listens to us – but also because proving how our Internet records will end up with ISIS or in North Korea will get nothing more than a shrug and a few soothing words about the “safeguards” in the Bill. We need to do better than produce anomalies of detail….

All through the twentieth century, our people tried to shift the paradigm by purely intellectual activism. Given the altered correlation of forces within the universities, they worked on a scale that we cannot now match. They still failed. The reason was that they were trying to apply their lever to the wrong point….

Intellectual activism is not a waste of time. Someone needs to articulate the counter-paradigm. But this is not sufficient in itself to overthrow the dominant paradigm. It should be seen rather as one line of attack in a largely cultural assault. We need our economists and philosophers. We also need our writers and artists and musicians. We need our own unofficial and unregulated – and that probably means secret – schools. We need our own structures of family life and arbitration. Our counter-paradigm must be seen to exist across the whole spectrum. We cannot try to privatize defence procurement, or bring back gold, and expect the tone of Hollywood and the BBC and the publishing industry to change accordingly. We must provide our own full-spectrum alternative. Plainly, we have done almost nothing in this direction. Hardly surprising if we life in a grotty police state….

To be clear, I do not believe we are living in a police state in Canada. Yes we have an expansive state, and there are many reasons for this, some of them utterly beyond anyone’s conscious control. As to Britain, the argument that it is a police state could be made more easily, especially when you see the arrests and prosecutions of white people for what are essentially the frank expression of everyday views on matters of race and religion.

The following is the tale of one Matthew Doyle, who tweeted something considered offensive by the thought-police after the Belgian airport bombings this past week. His story perfectly illustrates what Gabb is fighting against:

A man who tweeted about stopping a Muslim ‘women’ (sic) in the street and challenging her to “explain Brussels”, has said he will sue the Metropolitan Police after charges of race-hate against him were dropped.

Matthew Doyle, 46, from South Croydon, no longer faces the charge after the Met Police was told it had jumped the gun and did not have the power to make the decision without consulting the Attorney-General or the CPS.

“I cannot understand why I was detained, my flat trashed, my passport seized and two PCs, two tablets and my phone taken,” he said.

Mr Doyle, a partner at a south London-based talent and PR agency, allegedly posted a tweet on Wednesday morning saying: “I confronted a Muslim woman in Croydon yesterday. I asked her to explain Brussels. She said ‘nothing to do with me’. A mealy mouthed reply.”

The tweet, which appeared to refer to referred to this week’s bomb attacks on the Belgian capital’s main airport and Metro system, received hundreds of angry responses.

Regardless of the merits of Mr Doyle’s tweet or his underlying views, that the police in Britain are seizing the property of a man who posts an “offensive” tweet, according to a very expansive idea of racial incitement, is close to insane, and yet Britain is living under this form of police control now, with full support of the political classes.

“I was denied a shave, shower, food. I was stripped of any dignity to appear in court without looking like a dishevelled hobo that I am not,” he said.

He also accused ‘”nameless Twitter trolls” of “fanning the flames” and accused the Met of being “foolish” for bowing to social media rows.

He said: “It is not only foolish of them but I will be making a complaint against them and damages for trashing my flat, taking all my electronic stuff from my flat and forcing me to leave London.”

When first rate intellectuals like Sean Gabb are saying that opposition to some particular surveillance legislation is futile until we change the culture, he is on to something important. If rational intellectual opposition could have worked, it would have worked. It has not, and he is bold enough to ask why.

As Gabb showed, nearly everyone in 1600 thought that there were malevolent supernatural powers with whom humans could communicate, and that communication with these powers ought to be illegal. People were tried and hanged for witchcraft because people believed in these supernatural malevolent powers. A century later in 1700, no one believed in witchcraft. What had changed? In Gabb’s view the fact that intellectuals had pocket watches by 1700 did more to persuade people of a mechanistic universe than any amount of rational agitation against belief in witchcraft. In short, the subject – the focus of attnetion-changed.

I do not know what the answer is to controlling the expansion of the state. It may be, as Sean Gabb suggested about the effect of the pocket watch, that the near miraculous devices in our pockets, those telephone/camera/star chart/calculating/social media connecting/encyclopedias/ geo-positioning calulcators will turn society’s collective attention away from the state towards other things, and that they will accomplish the equivalent of the mental transformation that saw belief in witchcraft disappear between 1600 and 1700.

Whatever that force, thing, idea may be, I agree that the most important act we can engage in is actually to withdraw our attention from the state in order to refresh ourselves in our own lives, communities, and beliefs.

I have been much happier since I withdrew my attention from the CBC, and more recently, broadcast television. Part of the way to cope with the media and the political circus it supports is shift one’s attention to matters of more permanent importance, as one defines it.

 

 

 

 

Mrs. Dalwhinnie is pissed off

And not at me, for a change. No, nor at Gian Ghomeshi, the man who used to host  the leading morning show on CBC radio. She is pissed off at the women who testified against him. As their case has fallen apart under questioning, it appears they have lied, colluded, and compromized themselves hugely by having sexual relations with the odious Mr. Ghomeshi, after the alleged violent acts he committed against them. Mrs Dalwhinnie feels that her sex has been let down by the conniving creeps who testified against him. Apparently Christie Blatchford feels the same way.

Whatever else, the courtroom at Old City Hall, where the sex assault trial of Jian Ghomeshi ended Thursday, was generally a lousy place to be for a woman.

Everywhere you looked, there were women being caught in lies or omissions on the witness stand and then resorting to justifications for their evasive conduct taken straight from the therapist’s couch or latest self-help book; women being escorted in and out of the courtroom by protectors from the victim-witness office; women being soothed, IRL and online by their supporters, who took to labelling certain blogposts or tweets with “trigger warnings,” lest, God forbid, victims of sexual assault should accidentally wander onto a dangerous opinion or factual situation and be re-traumatized.

Tyler Anderson/National Post Jian Ghomeshi arrives at the courthouse for the final day of his sexual assault trial in Toronto, Thursday, Feb. 11, 2016.

It was akin to being a member, by virtue of gender alone, of an over-delicate, slightly feeble-minded citizenry in need of perpetual deference and protection both.

God bless you, Blatchford, for saying that. Her video at the same site says the the women were duplicitous, lied, and misled the police. Worse, the environment at the police department has been overtaken by PC, where women are treated as a slightly feeble-minded citizenry in need of perpetual deference and protection.

I do not know where this feminist thing will end, but so far as I have ever been able to make out, it is and has been  a cry for privilege, for the right to compete but the entitlement to a better outcome, and above all, to be treated as morally superior.

Once, decades ago, I had one of those strange dinner gatherings that one can have in one’s thirties  where people who had never met before were at table together. A girlfriend of a friend of a friend started on the usual feminist rant: the full litany of “we are oppressed, have always been oppressed by males” and she quite clearly did not have the least expectation that anyone would dare to say a word against her. A older lady had taken out knitting as this was going on, and she stopped in a stitch and asked, fixing the young woman with an eye:

“So, are you saying then, that women are morally superior to men?”

A silence fell, as the young lady had the wit to realize that she could not go on without making precisely the kind of claim she said she abhorred when it was done to her sex.

And that pretty well sums up the entire history of feminism: the claim that women are morally superior beings to men. Nothing I have observed of women’s behaviour compared to men’s would lead me, or anyone else for that matter, to that conclusion. And so I no more defer to women than I do to men, other than on the basis of character, age, class, rank, infirmity and the myriad real things by which humans are distinguished.

As C.S.Lewis once observed, you might go to a woman for compassion but you would almost always go to a man for justice.

 

Obama regime’s indifference to jihad

Muslims everywhere in their Christian or post-Christian host societies go berserk and slay dozens or hundreds in deliberate massacres. This is an observed fact. Then they say, if they survive, that Islam made them do it, and justify their murders on the basis of Islam.

Imagine if Germans or whiter people woke up from their peaceful lives, donned “assault uniforms”, armed themselves, carried out massacres, shouted Heil Hitler and died with swastikas on their arms. And this scene was repeated across the world by all sorts of converts to National Socialism from races and ethnicities from the Philippines to Tangier to San Francisco, from Murmansk to Cape Town.

In the following news article,  I want you mentally to replace every mention of the word Muslim with National-Socialist, and every mention of Islam with National Socialism.

The US Attorney General, the chief law enforcement agent of the federal government, speaking to a Muslim Advocates dinner, the day after the latest mass murder in San Bernardino, said the following:

Speaking to the audience at the Muslim Advocates‘ [National Socialist Advocates’] 10th anniversary dinner Thursday, Lynch said her “greatest fear” is the “incredibly disturbing rise of anti-Muslim [anti National Socialist] rhetoric” in America and vowed to prosecute any guilty of what she deemed violence-inspiring speech.

“The fear that you have just mentioned is in fact my greatest fear as a prosecutor, as someone who is sworn to the protection of all of the American people, which is that the rhetoric will be accompanied by acts of violence,” she said.

“Now obviously this is a country that is based on free speech, but when it edges towards violence, when we see the potential for someone lifting that mantle of anti-Muslim [anti National-Socialist] rhetoric—or, as we saw after 9/11, violence directed at individuals who may not even be Muslims [National-Socialists]  but perceived to be Muslims[National-Socialists] , and they will suffer just as much—when we see that we will take action,” said Lynch.

After touting the numbers of “investigations into acts of anti-Muslim [National-Socialist] hatred” and “bigoted actions” against Muslims [National-Socialists]launched by her DOJ, Lynch suggested the Constitution does not protect “actions predicated on violent talk” and pledged to prosecute those responsible for such actions.

“I think it’s important that as we again talk about the importance of free speech we make it clear that actions predicated on violent talk are not America,” said Lynch. “They are not who we are, they are not what we do, and they will be prosecuted.”

There are times when the distance between the Obama regime and the sentiments and interests of the American people is so vast that I am tempted to believe that Obama represents  a gigantic leftist conspiracy to destroy America and the decent people who make it work. The rest of the time I think he is just a leftist academic know-better asshole.

__________________________

So, is this equation correct: National Socialists = Muslims?

Or is it just jihadists=national socialists, and if the latter is true, how are we to tell the difference, as a Muslim can can slip into his jihadist self after a bad argument at work, or seemingly, a spilled cup of coffee.

Certainly this equation is true:

Violent racial supremacists= violent religious supremacists

The ideology may differ in causal justifications, but not in outcomes.

Consider the niqab

The Canadian federal election may turn on Canadian tolerance or not, of Islamic face coverings. The bien-pensants may deplore the rest of us thinking that our tribal/national mores trump their tribal/religious mores, regardless of what the Courts may have to say on the subject. As for me, you know where I stand.

This is not a matter of conformity to some arbitrary tribal custom of Canadians; it is a matter of participation in the group. The law, which is axiomatically dedicated to defending the rights of individuals, fails to reckon that the assertion of a right generates a reciprocal assertion of a responsibility to respect that right. Which is to say that Canadians as a whole are burdened with the responsibility to respect the right of a person to hide their faces, on the grounds that for the face-hider to do otherwise is immodest. The ideas of modesty which might have been appropriate to desert dwellers of antiquity, which was the felt need to protect women from the leering eyes of males, is now asserted as a right in 21st century Canada.

Let us make a thought experiment out of this. Suppose that a religion held that all men and women, when taking an oath, are prescribed by God to do so naked. I mean naked, head to toe. Naked as in a nude beach naked. So they arrive at the place of taking the oath, and when the time comes, strip to their skins, raise their right hands and swear by God true and faithful allegiance to the Queen.

What would be the Court’s basis of objection? Law and social custom regulate that women shall be dressed from above the nipples to well below the pubis. While the Court ruled that Canadian women have aright to be topless, society has not so far lessened its disapproval of female breast baring.

So, would a Canadian court hold that, if a person’s sincere religious belief was that no oath can be properly undertaken while wearing clothes or jewelry, would it allow a person to take the oath naked?
If you look at the reasoning of Mr.Justice Boswell of the Federal Court, the answer is likely yes. The “Policy” mentioned below is the Conservative’s recent directive on face coverings.

 

[54]

Citizenship judges cannot exercise that function to determine what degree of freedom is possible if they instead obey the Policy’s directive to ensure that candidates for citizenship have been seen, face uncovered, taking the oath. How can a citizenship judge afford the greatest possible freedom in respect of the religious solemnization or solemn affirmation in taking the oath if the Policy requires candidates to violate or renounce a basic tenet of their religion?

For instance, how could a citizenship judge afford a monk who obeys strict rules of silence the “greatest possible freedom”in taking the oath if he is required to betray his discipline and break his silence? Likewise, how could a citizenship judge afford a mute person the“greatest possible freedom” in taking the oath if such person is physically incapable of saying the oath and thus cannot be seen to take it ?
As a citizenship judge cannot comply with both the Policy and paragraph 17(1)(b) of the Regulations, it is necessary to determine which prevails.

And we all know how that one went.

The issue of fact which the learned judge rested his opinion was that the face covering is a basic tenet of the Islamic religion, which it is not.

According to Mrs. Ishaq, all that you have to prove is that a) that your practice is  a religious tenet sincerely held, and that b) the rule complained of interferes with the practice in a manner that is neither trivial nor insubstantial. To which I would add, that you find a judge who agrees with your interpretation of your religion, which ought to be dead simple.

My objection to the form of reasoning which constitutes Canadian rights discourse is that the whole is a Procrustean bed. A properly constituted legal discourse would allow for the discussion of public mores in addition to the discussion of infringements of rights, and the standards to be applied in considering the legality of infringements of rights.

There is, in the cosmic scheme of things, very little at stake in someone’s fashion statement, naked or clothed head to foot, if it were a fashion statement. But it is not. Taking the oath says you are also going to abide by the mores of the society which you have joined. At least, that is what you and I and the Conservative government think.

The reasoning allowed by the Courts says this is an inadmissible form of discourse. It is as if half or more of the argument can never be made.

In the meantime we are enjoined by the official organ of the Court party, the Globe and Mail, to

The niqab is a distraction – a culture war fabricated to take voters’ minds off the real and complex issues in this election. Don’t fall for it. Wearing a veil is one thing – wearing a blindfold is another altogether.

I consider that it is the Court Party which is wearing the ideological blindfold. As Prime Minister Wife said this afternoon, the issue is whether you want your daughters to wear one. It is not about individual rights so much as total social direction.

Stay tuned, this election is about something more than oil and the value of the dollar, both of which are largely outside political jurisdiction, for something that is within the boundaries of politics: how we shall live as a society.

 

 

Harper’s anti-elitist strategy

Oban and I were on an extensive hike this weekend when he opened up on Harper’s cunning strategy to undermine public confidence in our elite institutions. I am taking the liberty of representing his arguments below. They were as follows:
1. Harper passes all the legislation he needs as a government in budget bills, where they escape effective scrutiny.

2. The bills he wants debated in full are the symbolic bills, which he knows – more or less –  will be overturned by the Supreme Court.

3. He wants key pieces of his agenda to be not accepted by the Supreme Court.

4. He is engaged in an effort to diminish the respectability of elite institutions.

5. In addition, he seeks a state in which he can reduce the effect of the charter of rights and freedoms. He may be preparing the way for a widespread use of the “notwithstanding clause” or some other means to immunize his legislation against the power of the Courts.

So far Oban and I would agree that this is what Harper is doing, and that this is the best explanation of why Harper is doing it. Where we differ is whether this project of delegitimation is the evil he sees it as being.

The issue turns, as I see it, on the extraordinary power handed to the legal profession and the judiciary to regulate all aspects of Canadian life. While I am open to persuasion on the topic, my starting position is a profound mistrust of the wisdom, capacity, and democratic legitimacy of the Supreme Court and the legal profession to understand realities, and regulate us appropriately.
Canadians lived successfully without a charter of rights and freedoms for centuries, in a society of increasing lawfulness of behaviour. We had judges and the rule of law before we had the rule of Courts and judges over most areas of life.  What we did not have, I argue, is a closed, limited, and legally privileged group, the legal profession, exclusively procuring for themselves, the judiciary and legal profession, the right to determine what the people might have determined for themselves without interference by lawyers and courts. The Court’s functions before the Charter were limited to the issue of whether the federal or provincial governments had jurisdiction, not whether they offended a Charter of Rights and Freedoms. Parliaments were supreme. Sometimes they enacted legislation we now choose to think was evil, but for the most part, legislatures were significantly  less unwise than a post-Charter Canada assumes that they were.

So I would agree, for the time being, that Harper’s derisive treatment of the Supreme Court is the attempt at delegitimation that Oban speaks of. But I do not see it as all bad. In reviewing the cases I do not see that the opinions of the Court are so markedly superior to those of legislatures.  The case of the qualifications of Mr. Justice Nadon to sit on the Supreme Court (Nadon), for instance, was invented out of whole cloth. No person informed by the rules of grammar could read section 5 and 6 of the Supreme Court Act and come to the majority opinion. Turning down the mandatory minimum sentencing for gun crime is probably a good thing; I own guns and the rules for keeping them locked up and away from the very ammunition they need is absurd, and going to jail for a “gun crime” for improper storage is outrageous. But whether the whole of the law had to be impeached is open to question.

But whether the Supremes get it right or wrong, they are at the apex of a legal profession that has to a great degree replaced the parliaments of this country. The very irresponsibility with which Oban finds fault in the American system of government is being engendered here for different causes: the supremacy of the Court, which is frequently driven by fashionable twaddle.

 

My basic objection to the Court’s override of parliaments rests on this:  I do not think the political opinions of nine Volvo drivers in ermine are necessarily better than mine, or yours.

Moreover, better or worse, the opinions of this group of specialized legal experts do not command my allegiance.

Saying that Harper’s attacks on the Charter are the empowerment of a resentful class of the lower orders is mere snobbery, however well grounded this observation might be.

For my part, I do not yet think we are in danger of losing the country to crowds of resentful people of low accomplishment that Oban fears are being titillated and aroused by Harper’s opposition to the Supereme Court. Au contraire,  I think we have already lost the control of the country to the legal profession and the style of thinking with which they are imbued at law schools. The fish are not conscious of the water. Nor are lawyers of their ideology. The very idea that they – and they alone – through their supreme emanation, the Supreme Court, should control the direction of the country, in the long term, is to me an abomination.

Oban, I am waiting for your arguments in favour of the supremacy of the courts over parliaments. It is a debate well worth having.

 

 

The Non-Human Rights Project

I do not know quite what to think about the Non-Human Riughts Project, which won a significant case in New York recently when two chimpanzees were granted writs of habeas corpus. This follows a case late last year when an orangutan was granted legal rights in Argentina.

The Non-Human Rights Project describes itself as

the only organization working through the common law to achieve actual LEGAL rights for members of species other than our own.
Our mission is to change the common law status of at least some nonhuman animals from mere “things,” which lack the capacity to possess any legal right, to “persons,” who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them.

 

Of course, the legal rights of animals may only be advanced through courts by humans. Some humans. Specific humans. Humans paid by a fund of money to do this. So then, is this similar to a hypothetical 19th century case where a lawyer advocated the rights of a slave who is obviously human but legally (at the time) deprived of his right to property in his own labour and self?

I can see Catholic theologians advancing well-considered arguments that this is the thin edge of the wedge, in a process of degrading man to the level of animal. Maybe.

But for sure the Non-Human Rights Project has already had influence. Ringling Brothers announced on March 4, 2015 that its elephants will no longer perform in zoos, and that its existing herd will be retired to a preserve in Florida.

I can easily foresee that the Non-Human Rights Project will argue that pipelines aggress upon caribou herds: that the cases will shift from animals in captivity to animals in the wild, and then we will have yet another anti-development interest arguing before the courts that industrialization should be hampered and cease.