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[BRIEF NOTE] Is Marc Nadon Canada’s Harriet Miers?

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Marc Nadon was nominated to the Supreme Court of Canada as one of three judges from Québec of the total of nine serving on the court. His nomination was rejected on the grounds that, among other things, he hadn’t served as a lawyer in Québec for long enough.

Carissima Mathen at the Ottawa Citizen noted the background.

Nadon’s appointment was made under section 6 of the Supreme Court Act, which reserves three of the Court’s nine seats for Quebec (which, unlike other Canadian provinces, has a civil law tradition). Candidates must be either judges on Quebec courts, or members of its bar with 10 years standing. At the time of his appointment, Nadon was neither: he sat on the Federal Court of Appeal, and had not been a member of the bar for years.

The federal government insisted that Nadon was nonetheless eligible. It pointed out that previous Supreme Court justices have been appointed from the Federal Court; and it argued that there is no meaningful difference between past and present bar membership. It had in hand an opinion from a former justice, Ian Binnie, giving it the “all clear.” It even, brazenly, attached two clauses to the Budget Implementation Bill to “declare” that the Supreme Court Act should be interpreted to permit Nadon’s appointment.

Nadon’s stalled candidacy created headaches for the Court, which has been operating without its full judicial complement for months now. It faced considerable pressure to resolve the issue.

Remarkably, none of that seemed to matter. In a 6 to 1 ruling, the Court confirmed what Professor Michael Plaxton and I argued in a 2013 article: section 6 exists not just to ensure technical expertise in civil law, but to maintain Quebec’s confidence in the Court. To hold otherwise would be to “rewrite history.” The Court emphasized that past bar membership is sufficient for the non-Quebec seats (thereby confirming the validity of past Federal Court appointees). But it isn’t enough for Quebec; and it wasn’t enough for Nadon.

This was welcomed in Québec. It was also welcomed by the opposition, as CBC noted.

In a six-to-one decision, Canada’s highest court deemed Nadon to be unqualified to sit among them as a Quebec member, and that the changes the government made to the Supreme Court Act (which would have allowed him to sit) were actually unconstitutional.

New Democrat justice critic Françoise Boivin said she was happy with the court’s ruling and took aim at the fact that the government passed those changes to the law through an omnibus budget bill. She said she still hasn’t digested that two little articles were passed that had the capacity to review historical positions in naming judges.

“Honestly, it’s insulting,” she said.

“I’m not just saying for Quebec. It’s insulting for lawyers, it’s insulting for the justice and it’s especially insulting for that great institution that is the Supreme Court of Canada,” she said.

The matter of constitutionality is a sticking point for retired judge John Gomery, who said the appointment was bad in the first place because Nadon doesn’t have the expertise to serve on the court.

“It must be a profound embarrassment for the government,” he said in an interview on CBC Radio’s The House. “They made what has turned out to be a bad and illegal and unconstitutional appointment and it has sort of exploded in their face.”

This occurs in the background of the recent departure of Jim Flaherty as finance minister.

Is anyone reminded of the Harriet Miers in the United States, centering on a White House lawyer nominated by Bush to the United States Supreme Court in 2005 despite lacking key qualifications who was eventually rejected?

Written by Randy McDonald

April 2, 2014 at 4:01 am

[LINK] Two links on American concepts of “religious freedom”

In question-and-answer format, the Volokh Conspiracy’s Eugene Volokh introduces readers–in my case and many others, non-Americans–to the minutiae of American religious freedom law as currently being debated in connection to health care and GLBT rights.

1. What’s with religious people getting exemptions? I thought the Supreme Court said that wasn’t required. For most of American history, courts generally didn’t see the Free Exercise Clause as requiring exemptions for religious objectors. But in Sherbert v. Verner (1963), the Supreme Court said that such exemptions were presumptively required, unless the government could show that denying the exemption was necessary to serve a compelling government interest.

Then, in Employment Division v. Smith (1990), the Supreme Court changed its mind, by a 5-to-4 vote. The Free Exercise Clause, the court held, basically just banned intentional discrimination against a particular religion or religious people generally. With a few exceptions (such as for churches’ decisions about choosing their clergy), religious objectors had to follow the same laws as everyone else, at least unless the legislature specifically created a religious exemption.

The lineup in that ruling, by the way, was interesting: conservative Justice Antonin Scalia joined by conservative Justice William Rehnquist, moderate conservative Justice Anthony Kennedy, moderate Justice Byron White, and moderate liberal Justice John Paul Stevens voted for the nondiscrimination rule. Moderate conservative Justice Sandra Day O’Connor — joined by liberal Justices William Brennan, Thurgood Marshall and Harry Blackmun — disagreed, and wanted to preserve the Sherbert constitutional exemption regime.

But wait. Congress didn’t agree with Smith, and so it enacted — by a nearly unanimous vote — the Religious Freedom Restoration Act of 1993, which gave religious objectors a statutory right to exemptions (again, unless the government could show that denying the exemption was necessary to serve a compelling government interest). In City of Boerne v. Flores (1997), the court said this exceeded congressional power over the states, but RFRA — pronounced “riffra” — remains in effect for the federal government.

Moreover, since 1990, 17 states enacted similar “state RFRAs” that government state and local governments. One state (Alabama) enacted a constitutional amendment that did the same. Eleven states’ courts interpreted their state constitutions’ religious freedom clauses as following the 1963-1990 Sherbert model. And one state’s high court (in New York) interpreted the state constitution as applying a less protective religious exemption regime, somewhere between the old Sherbert approach and the Smith approach.

At the Everyday Sociology Blog, meanwhile, Jonathan Wynn takes a look at religious freedom arguments from the sociological perspective.

Laws that protect sincerely held religious beliefs may make sense at first glance, but it’s quite an interesting sociological puzzle as to what this phrase means, and how that should play out in a civil society where there are lots of divergent belief systems. The law is unclear on the matter (and the 1993 law, by the way, has an interesting history).

From a Durkheimian perspective, an incursion of the religious into the public sphere is somewhat inevitable, since religious beliefs must also correspond with actual social activity. As he wrote in chapter one of The Elementary Forms of Religious Life, religion is a “unified system of beliefs and practices relative to sacred things” and there is no religion without a church. This is to say that there are no sincerely held beliefs without corresponding actions. (Elementary Forms concludes with a reference to struggles between religious beliefs and science, foreshadowing the Scopes Monkey Trial of the 1920s and the recent Bill Nye vs. Creationism debate; the U.S. Supreme Court will listen to arguments against the Affordable Care Act on March 25th, 2014.)

The question is over what religious freedom allows citizens to do. Religion can give a moral warrant for all sorts of things. The Hobby Lobby’s owner, for example, wrote a much talked about 2012 op-ed in the USA Today coming out against providing comprehensive preventative care for women claiming he has the right to run his businesses upon the tenets of his Christian values. Hobby Lobby is, in fact, closed on Sundays as per the fifth commandment (Exodus 20:8-11) but it is doubtful they would support putting a child to death for cursing his mother or father, or an adult for adultery. Few would argue that these sincerely held religious beliefs—as listed in the Bible’s rulebook, Leviticus (20:9; 20:10)—should be accepted one and all. Strongly held beliefs are, of course, selective.

Which brings us back to A.J. Jacobs, who tried harder than most to follow those sincerely held beliefs both commonly held (e.g., love thy neighbor as yourself, Mark 12:31) and the less followed (e.g., not wearing clothes of mixed fibers, Leviticus 19:19). He tried as many of the lessons from the good book as possible. At one point he walked around Manhattan with pebbles in his pocket to stealthily stone blasphemers. It’s a pretty entertaining read.

But there aren’t too many of us who live as biblically as possible these days. The central pivot of Durkheim’s first major work, 1893’s The Division of Labor in Society, is that as societies move from a more primitive state to a modern one, the religious influence on the collective conscience wanes and new forms of solidarity based on mutual reliance upon each other waxes.

Written by Randy McDonald

March 25, 2014 at 3:59 am

[LINK] “Quebec’s fear-mongering PQ bears little resemblance to the party of René Lévesque”

Writing in the Toronto Star, Chantal Hébert has it right. The Parti Québécois in recent years really has played the ethnonationalist card to the hilt, starting from the manufactured controversies over the Quebec Charter of Values (immigration, religion, ethnicity) and continuing with the most recent hysteria over an alleged flood of Ontarian students set to swing the election.

I only hope that, as the polls seem to suggest, the PQ will lose the Québec election scheduled for Monday the 7th of April.

According to Bertrand St-Arnaud, who rode in to Montreal bright and early on Sunday to sound the alarm, the April 7 election was at risk of being stolen by the rest of Canada. Hordes of out-of-province university students were determined to storm the bureaucratic gates of the election registration offices to sign up to vote for the federalist Liberal party.

In the absence of physical evidence that Canada’s foot soldiers were on the march, I concluded that the minister must be keeping information from the public, the better to prevent a full-fledged panic.

Given how well-versed today’s students are in the ways of Harry Potter, it seemed fair to assume that they had cleverly donned an invisibility cloak to take Quebec by stealth.

How else could any group of the size required to change the outcome of the vote in my inner city neighbourhood manage to go about unnoticed?

Sainte-Marie-Saint-Jacques is a riding where, on a good year, the Liberals place third, thousands of votes behind the PQ and the second-place Québec Solidaire. Two other Montreal ridings alleged to be at risk by the péquiste brain trust have a long and solid Liberal history.

Upon verification, Quebec’s chief electoral officer Jacques Drouin reported that there was no evidence that anything was amiss in any of the five ridings alleged to be under siege. There are marginally more English-speaking students seeking to register than in the 2012 election, but in an election that has turned into a referendum on a future referendum and amidst campus campaigns to promote the student vote, the opposite would have been more surprising.

Written by Randy McDonald

March 25, 2014 at 2:12 am

[NEWS] Some Monday links

  • Al Jazeera notes that Somali asylum-seekers in the United Kingdom are being deported to Somalia, at great potential risk to themselves, and observes the continuing and self-serving chaos in that country.
  • The Atlantic debunks the myth that GLBT people are well-off relative to heterosexuals in the United States, at least, and uses a San Francisco building’s history to take a look on the history of that city throughout the 20th century.
  • The Atlantic Cities shares a photo essay about Rochester’s subway, abandoned after more than a half-century.
  • The Australian Broadcasting Corporation shares the news that some ecologists in Australia think that triage should be applied to the continent’s threatened species.
  • BusinessWeek notes that China’s first lady Peng Liyuan may be taking Michelle Obama as a model for her position, and notes that Exxon’s partnership with Rosneft (and other Western-Russian business partnerships) are looking problematic) after the Crimean annexation.
  • CBC observes that the Turkish state has lost in its attack on social networking platform Twitter.
  • Taking on issues of Québec City, MacLean’s observes that getting back the Quebec Nordiques isn’t helped by the resurgence in nationalism, adding also that despite being a potential national capital Québec City doesn’t vote for the Parti Québécois.
  • Open Democracy makes the argument that Scottish separatism is driven by a desire to be a normal European country, in contrast to an increasingly inegalitarian England.

[BLOG] Some Wednesday links

  • The Burgh Diaspora’s Jim Russell observes the fine scale of globalization’s movements, which connect nations not so much as they do neighbourhoods.
  • The Dragon’s Gaze revisits the Kepler-9 system and notes the disintegrating sub-Mercury planet that is KIC 12557548b.
  • The Dragon’s Tales notes that waves have been detected on Titan’s Punga Mare.
  • Eastern Approaches takes a look at Slovakian politics.
  • Far Outliers revisits the massive volcanic eruption that hit the Melanesian island of New Britain circa 600 CE.
  • The Numerati’s Stephen Baker wonders if his new novel The Boost is anti-Chinese simply by describing a hegemonic China not acting differently from the United States. (I must read the book.)
  • Strange Maps notes a Turkish exclave in Syria–a tomb of an ancient Turkish hero–that might bring Turkey into the Syrian civil war.
  • Towleroad notes a study suggesting that crystal meth use accelerates the progress of HIV/AIDS in users.
  • The Volokh Conspiracy’s Eugene Volokh notes the death of a Ukrainian soldier on a base stormed by Russian soldiers in Crimea.
  • Window on Eurasia notes the fears of many Crimean Tatars of Russian rule.
  • Yorkshire Ranter Alex Harrowell shares his eclectic list of recommended blogs.

[LINK] “It’s a Scary Time to Be Super-Rich in Ukraine”

Carol Matlack’s Bloomberg BusinessWeek article talking about the position of Ukrainian oligarchs in post-revolutionary Ukraine is worth noting, not least because an alliance between them and the new government would go a long way towardss cementing the country’s unity.

Other oligarchs could play an important role in Ukraine’s future—if for no other reason than that they control, by some estimates, more than one-fifth of the country’s gross national product. Take Rinat Akhmetov: Ukraine’s richest man holds an estimated $12.9 billion fortune that includes control of half Ukraine’s steel, coal, and electricity production. “He controls hundreds of thousands of jobs” and is immensely popular in his home region of Donetsk in eastern Ukraine, says Matthew Rojansky of the Wilson Center in Washington. “He’s not going anywhere.”

Most of the oligarchs started building their empires under previous governments, and many enjoy good relations with opposition parties. Billionaire financier Igor Kolomoyski, for example, helped bankroll past campaigns by former Prime Minister Yulia Tymoshenko, who was jailed by Yanukovych but now looks set for a comeback. “Each of the major oligarchs has got several dozen votes they control” in the national parliament, including some from opposition parties, Rojansky says.

Some business leaders began openly criticizing the government last year, after Yanukovych touched off the protests by spurning a trade agreement with the European Union. They included Akhmetov, media tycoon Dmitry Firtash, industrialist and philanthropist Victor Pinchuk, and confectionery magnate Petro Poroshenko.

These oligarchs supported the trade deal “because they want to export to Europe,” Anders Aslund of the Peterson Institute for International Economics wrote in a commentary for the BBC published in December. “Most of all,” he added, “they desire legal protection against raids by the Yanukovych ‘family.’”

[. . .]

Most of the oligarchs haven’t said much since Yanukovych’s ouster. “They’re trying to stay as neutral as possible, conserve their wealth,” says economist Tim Ash of Standard Bank in London. “They want European integration, but they don’t want to piss the Russians off, either.”

Written by Randy McDonald

March 18, 2014 at 7:34 pm

[BLOG] Some Tuesday links

  • Beyond the Beyond’s Bruce Sterling shares a United Nations reaction to a United States human rights report.
  • The Dragon’s Tales observes one model for the climate of the ancient Earth and notes that, on the basis of ancient DNA, ancient Europeans were not uniformly white.
  • The Dragon’s Gaze notes studies of the galactic habitable zones of the Milky Way and Andromeda galaxies.
  • Eastern Approaches reacts to the recent Crimean vote.
  • Geocurrents’ Asya Perelstvaig shares a post about Irish cuisine over time.
  • Joe. My. God. notes the recent visit paid by American evangelist Michael Brown to Peru to try to spread anti-gay ideology.
  • At Lawyers, Guns and Money, the argument is made that the Democratic Party really has shifted left.
  • James Nicoll, at More Words, Deeper Hole, notes the racism of environmentalist Garret Hardin.
  • The New APPS Blog tackles the question of the extent to which the anti-Semitism and Naziism of Heidegger informed his philosophy.
  • The Volokh Conspiracy is unimpressed by the Crimean referendum.
  • Window on Eurasia shares the warning of Andrei Ilarionov that Russia plans on annexing and dominating far more of Ukraine than Crimea.

[BLOG] Some Friday links

  • Anders Sandberg of Andart links to a paper suggesting that mind emulations–uploaded human minds–are likely to arrive not too late after 2050.
  • Cody Delistraty wonders why writers are so often depressed and in bad relationship.
  • The Dragon’s Gaze notes that analyses of the atmospheres of five hot Jupiters.
  • The Dragon’s Tale observes evidence that First Nations in British Columbia practiced mariculture.
  • The Financial Times‘ World blog observes that Euroskepticism and hostility towards the Euro is growing in Italy.
  • Lawyers, Guns and Money takes note of Paul Ryan’s tone-deaf statement about inner-city men.
  • Marginal Revolution argues that, at least in the United States, large amounts of property are held by governments which don’t make use of them.
  • The Power and the Money’s Noel Maurer wades into the question of just how many constitutions Argentina actually has had.
  • Towleroad links to Stephen Colbert’s interview with former Russia Today anchor Liz Wahl.
  • The Way the Future Blogs shares an old Frederik Pohl article from 1988 describing his experiences on a book tour.
  • Window on Eurasia notes that apparently more Russians don’t believe Ukraine is a nation and think Russia has legitimate claims on Ukrainian territory, and shares an article written by one man who thinks this threatens Russia’s future.

[URBAN NOTE] On the growing likelihood of Toronto mayor Olivia Chow

Surprising absolutely no one, former Toronto city councillor and (until yesterday) NDP MP for the riding of Trinity-Spadina Olivia Chow announced that she was leaving Parliament to run as a candidate in this year’s mayoral election. CBC:

Olivia Chow officially launched her campaign to be Toronto’s next mayor, saying that “it’s time for change” in Toronto, promising to take the city in a new direction from the “failed” leadership of incumbent Rob Ford.

“We need a new mayor for a better city and I’m here to apply for the job,” Chow said.

Speaking of her humble beginnings in a struggling immigrant family, Chow told the crowd in St. James Town — the neighbourhood where she grew up — that she learned not to spend what you don’t have, to work hard for what you want and how that has shaped her view of Toronto and what the city needs to thrive.

[. . .]

“In the last four years we have paid more and more and got less and less. We are paying more to take the TTC, but we’re waiting longer for buses and packed into them like sardines,” Chow said, also speaking of the unemployment rate and the vulnerable younger generation.

Although Chow made no direct mention of Ford’s admission that he smoked crack cocaine and bought illegal drugs while mayor, nor his videotaped booze-fuelled rants, she emphasized how disappointing he has been and how he is not someone who could ever be a role model for children.

“The current mayor’s disappointing leadership has let us down over and over again. He has failed to make the critical investments our city needs to stay competitive … the current mayor is failing at his job and he is no role model for my granddaughters,” she said.

The major candidates that have declared their intention to run for mayor have so far been right-leaning, fiscal conservatives. Chow, a notable New Democrat, has already tried to contrast comments about left-wing overspending her rivals have spoken about.

Chow, appearing on CBC News Network later Thursday afternoon, noted she was on the city’s budget committee, under then-mayor Mel Lastman, for five years, during which time the books
were balanced.

blogTO and Torontoist both commented yesterday on the near-certainty that Chow would run. Combing through my archives, I find a note from last March on the possibility that, according to various polls, Olivia Chow would beat Rob Ford in a direct mayoral run, and another on her admission that she was considering a run. These, incidentally, preceded news of Ford’s crack tape and the various ridiculous sequelae.

Chow has a solid political record behind her, like most of the candidates announced so far. Chow’s advantage? Metro Toronto‘s Matt Elliott had earlier suggested that, given that three of the four highest-profile candidates (Rob Ford, John Tory, Karen Stintz) were on the right, Olivia Chow was the only candidate running from the left. If she was unopposed by any high-profile candidates, presumably she would have a considerable advantage over others.

Plus, it’s time for a mayor from the downtown again. (Amalgamated Toronto, as my friend Leeman pointed out to me earlier, seems to alternate between left-leaning mayors from the downtown and right-leaning mayors from the suburbs.)

Will I be voting for Chow? Unless something changes, I will. I suspect I won’t be alone in doing so. Having someone more ideologically sympathetic to me in office who isn’t prone to doing any number of ethically problematic and potentially criminal acts is something I’d enjoy. At the very, very worst, if there ever did turn out to be an Olivia Chow crack tape, I’m sure it would be a tasteful crack tape.

Written by Randy McDonald

March 14, 2014 at 1:55 am

[URBAN NOTE] “Ford Nation a lot smaller on YouTube”

NOW Toronto‘s Ben Spurr notes that Ford Nation, the official YouTube channel of Toronto mayor Rob and his councillor brother Doug Ford, hasn’t had the following of either their radio show or their single episode on SUN TV last year. This, I suppose, isn’t exactly a big shocker. Right?

The first episode, posted on February 4, did well, averaging 23,289.3 viewers* for its four segments. But since then it’s been downhill. The second episode reached an average of 9,337 people for each of its six videos, and the third and latest instalment, released on February 26, garnered an average of only 5,346 viewers over its three segments.

[. . .]

By conservative estimates the City, the radio show they hosted on CFRB Newstalk 1010 for almost two years, was broadcasting to upwards of 80,000 people every week by the time it was cancelled last fall, with huge spikes on Sundays after new developments in the mayor’s crack scandal.

When they moved to TV as the scandal roiled in mid November, their single episode on the Sun News Network nabbed 155,000 viewers, which the channel’s vice president Korey Teneycke said at the time made it “biggest night ever for Sun News by a country mile.”

[. . .]

One reason is simply the demographics of the internet, according to David Bray, creative director at Bray & Partners and an expert on the radio market. The people who listened to the Fords’ radio show are unlikely to watch the YouTube series, he says.

“CFRB listeners are somewhat older,” says Bray. “It does appeal largely to the 55-plus crowd… Would that same constituency move over to online? Very unlikely, because clearly that demographic isn’t as active online.”

The online show’s content is also a problem. While the Ford brothers appeared to maintain a high degree of control over their radio show, they did usually take phone calls from listeners or had guests on. There was at least the potential for unscripted moments.

Written by Randy McDonald

March 13, 2014 at 9:35 pm


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