All posts tagged Charter of Rights and Freedoms

What Danielle Smith thinks and why Alison Redford’s Tories aren’t fear mongering about it

by David Climenhaga on April 15, 2012 in Uncategorized with 12 Comments
Typical Albertans react to fear mongering by … well, by anyone, really. We frighten extremely easily out here on the Great Plains. Typical Albertans may not be exactly as illustrated – then again, according to the Wildrose Party, they may be. Below: Wildrose Leader Danielle Smith, “Progressive” Conservative Leader Alison Redford.

Why aren’t the supposedly progressive Conservatives under Alison Redford fear-mongering more about Wildrose Leader Danielle Smith?

Yeah, I know, that’s the Wildrose narrative. “Those Tories are just fear-mongering about us. Boo-hoo!” Poor little things! It’s actually one of their Official Talking Points, no doubt framed up by the King of Fear himself, campaign manager Tom Flanagan.

But as former Liberal MLA Maurice Tougas pointed out in an excellent blog post last week about the Conservative election strategy, if such haphazard bungling deserves to be called a strategy, the Tories are actually doing very little fear mongering – especially when there’s so much fear to monger about.

I have a conspiracy theory of my own about this. It’s pretty simple, actually. As I’ve been saying in this blog for months, the Wildrose and the Tories are just two sides of the same coin. Ms. Redford in particular, notwithstanding constant fear mongering by the Wildrose Party back to its extremist base, is almost as far to the right as Ms. Smith.

Whenever the Wildrose Party’s online legion of whiners complains that Ms. Redford is really a left-winger – or, as the party’s semi-official tabloid newspapers’ hysterical new columnist puts it, “Alberta’s first NDP premier” – I laugh out loud.

Alison “No Fee Cap” Redford is only red in the “Red State” sense of that colour, which is why I’m not getting my knickers in too much of a twist at the prospect of a Wildrose government. I mean, really people, will it be that much different from the massive PC majorities of the past, like the ones under Ralph Klein and Ed Stelmach, both of whom tried to privatize health care?

But, je digresse. It’s said here that the reason the PCs aren’t going hard on Ms. Smith when there is so much rich material to hit her with on such topics as health care, abortion, human rights and political ethics is because in their dark little Tory hearts they’re still harbouring many of the same plans, or at least very similar ones.

Ms. Smith has said so much that’s so radical, that if the Conservatives weren’t covering up similar plans they could have reduced her and her party to rubble weeks ago. As for the other opposition parties, it’s pretty obvious why they have been so cautious with such a strategy: they legitimately fear driving their supporters to the Tories if they go too hard on what Ms. Smith really believes.

Now, back in the day, when Ms. Smith was a columnist for the Calgary Herald, she wrote many columns in which she said exactly what she thinks – and from which we can get a pretty clear idea of what she would do in office were she not constrained by the limitations of democratic politics.

Since there are enough examples in history of extremist politicians who put their thoughts on paper and later acted on them, we would be foolish not to pay attention to Ms. Smith’s past jottings.

For some of the quotes that follow, I am indebted to Mr. Tougas and to Warren Kinsella, the self-described raconteur and bon vivant best known as a prominent federal Liberal insider.

So Ms. Smith, who now tells us she is a staunch believer in publicly funded health care – a carefully couched term designed not to exclude private clinics, for-profit services and multiple tiers of superior care for those with the cash – wrote in her column back on April 23, 2005: “The sooner Canadians realize that privatization is a must, the sooner we can move to the more crucial debate over how to refinance the system.”

Or, as she asked on a June 1, 2003, Global TV program about medical queue jumping and medical tourism south of the Medicine Line: “We already do have this two-tier system, so why not allow people to pay for private services?”

Or, as she stated baldly about two-tier health care in the Herald on the same day: “Bring it on!”

That was then and this is now, as the Wildrose Party’s supporters will tell you, but are we really foolish enough to believe she’s changed her mind? As Ms. Smith herself said in the Herald on Aug. 3, 2003: “Democracy is pure theatre.”

Usually, there’s a sneaky kind of honesty to the Wildrose plans that run against public sentiments, just as there often is when the Tories do the same thing – as in the scrupulous use of the phrase “publicly funded” above.

So when Ms. Smith says, as she did early this month, “I support the Charter of Rights and Freedoms,” we ought not be reassured. She says that about the Charter because she knows the Charter is popular with the public and because she sees it as not much more than a low hurdle to the things she wants to do.

As she wrote in the Herald on Jan. 14, 2006: “A Charter-proof abortion law could be drafted to forbid third-trimester pregnancies, as numerous European liberal democracies have already done. A Charter-proof marriage law could be drafted that would grant equivalent rights to gays to acknowledge their partnerships without changing the definition of marriage, as in Great Britain.”

“Politicians are wily enough to find a way to violate Charter rights with or without it,” this wily politician observed of the Charter’s Notwithstanding Clause at the conclusion of that 2006 column.

There was always plenty there for the PCs to fear-monger about if they’d been so inclined. They’re not, it’s said here, because even in the most desperate of corners, they want to keep their options open to implement exactly the same kinds of schemes.

This post also appears on Rabble.ca.

Alberta Conservative MP takes surprising swipe at Canada Post back-to-work law

by David Climenhaga on June 28, 2011 in Uncategorized with 5 Comments
Your blogger with Edmonton-St. Albert MP Brent Rathgeber, in agreement for once … sort of.

With locked-out postal workers being forced back to their jobs last night by the Harper Conservatives, I was surprised and interested to learn that Brent Rathgeber, the usually well-behaved Conservative Member of Parliament for Edmonton-St. Albert, recently used his blog to criticize his own party for its approach to resolving labour disputes.

Does this indicate a sudden epiphany by Mr. Rathgeber that as an Alberta MP who isn’t one of Prime Minister Stephen Harper’s closest cronies he’s unlikely ever to be considered cabinet material, or is he merely showing a slightly independent streak now that he’s been comfortably re-elected?

Regardless, Mr. Rathgeber stated in the June 22 edition of his blog that he is philosophically troubled by back-to-work legislation. “As a former Labour Lawyer (Management Side), I do actually subscribe to the concepts of the right to collective bargaining and the right to withdraw services after the expiration of a collective agreement to demonstrate one’s resolve,” Mr. Rathgeber stated.

Perhaps I am reading too much into a simple comment, but in the context of Mr. Harper’s Ottawa, Mr. Rathgeber’s turn of phrase is interesting: “…I do actually subscribe to the concepts of the right to collective bargaining….” It almost sounds as if Mr. Rathgeber is acknowledging that such a sentiment is unusual, perhaps even unique, among the current unprogressive Conservative caucus in Ottawa.

And I can tell you that whatever he is, Mr. Rathgeber is no dummy. He’s a pretty sharp guy who knows how to parse a sentence for specific meaning as well as any of us. He is also, it should be noted, the MP for the riding in which I reside.

“At a more practical level,” Mr. Rathgeber went on, “I am leery of Back to Work Legislation because I cynically suspect that many unions favour such legislation, believing they will fare better under binding arbitration than they would at the bargaining table.”

While Mr. Rathgeber’s suspicion is by no means warranted in all circumstances and with all unions – especially here in Alberta, where the dice are usually loaded against working people in such processes – it must be conceded that there is enough truth to what he says to make it dangerous.

It is true at least that if the arbitration process is fair, and an employer is particularly unreasonable and intransigent, the process can be made to defend the interests of working people. Alas, unmentioned in Mr. Rathgeber’s blog, the arbitration process set out in the government of Canada’s back-to-work legislation, which was passed Saturday night, cannot be described as fair.

A useful exegesis of this ugly piece of legislation by Fred Wilson on rabble.ca explains that the final-offer selection process proposed is biased on its face against unions. Since the Canada Post bargaining position contains a number of outrageous demands for major concessions from the Canadian Union of Postal Workers, including two-tier wages and two-tier retirement benefits designed to exploit younger workers, it will be impossible for the union to propose a fair agreement in the context of the bogus saw-off required by the process.

Indeed, in final-offer bargaining, from the company’s perspective, the more outrageous its bargaining position, the better. As Mr. Wilson writes, “unions are forced to present an offer that is usually just a more ‘reasonable’ version of what the employer is demanding. The union then becomes complicit in what can be very unfair results for workers.”

As Mr. Wilson further notes, Ottawa’s legislated approach is actually worse than that because it forces the arbitrator to effectively act as an agent of the employer through a rigged process by demanding, for example, that he or she consider wages in comparable postal industries, whatever that may mean. The Flyer Force?

The legislation also sets lower pay rates than Canada Post had offered CUPW in its last offer. The Conservatives’ Mr. Rathgeber concludes, therefore, that “it will be difficult for the Union to reject Canada Post’s final offer and then be subject to a legislated settlement that is less favourable.”

In other words, if his suggestion is correct (and, as a Conservative insider it is reasonable to assume that Mr. Rathgeber is doing more than idly speculating), it is clear that the intention of the Harper government’s foray into collective bargaining is to interfere on the side of an employer, not to protect the economy as the government maintains.

Indeed, Mr. Rathgeber seems to agree with this assessment, expressing his doubts about the significance of the economic impact of the Canada Post labour dispute and referring to “protection of the fragile economic recovery” as “the purported purpose of the Back to Work Legislation at Canada Post.” (Emphasis added.)

This kind of thing hardly indicates that Prime Minister Harper’s hold on his caucus is weakening. Still, it’s mildly encouraging to hear a Conservative MP suggest that his government’s policies may not be the best for Canada.

Meanwhile, although the reaction from organized labour to the government’s legislation was mostly one of wounded outrage, it seems to me that Canadian unions would be smarter to get cracking and challenge the constitutionality of this law.

Mr. Rathgeber, the sometime employer-side labour lawyer didn’t mention this in his blog, probably because he doesn’t wish to commit immediate political suicide, but the law is pretty clearly unconstitutional if the ruling of the Supreme Court of Canada in June 2007 has any meaning.

That case stemmed from a bill passed by the government of British Columbia that like this weekend’s postal back-to-work legislation clearly was designed to bypass the process of free collective bargaining and impose a punitive and unjust collective agreement on a group of public employees, in the British Columbia case, hospital workers.

The Supreme Court ruled that the right to bargain collectively is included under the freedom of association provisions of the Charter of Rights and Freedoms, and that the B.C. bill interfered with bargaining “either by disregarding past processes of collective bargaining, by preemptively undermining future processes of collective bargaining, or both.”

Sound familiar? This pretty fairly describes the intent and the action of Ottawa’s back-to-work law.

There’s no point wailing about the fact Stephen Harper and his Walmart Party of Canada government are anti-labour. We knew that before the election, and it’ll be a few years before they can be challenged in the courts.

So labour would be smart, in my view, to attack this disgraceful legislation in the only remaining branch of the Canadian government where the idea of the rule of law still holds sway – to wit, the courts.

This post also appears on rabble.ca.

Let’s de-fund the right, and let’s start with the so-called ‘Calgary School’

by David Climenhaga on February 15, 2011 in Uncategorized with 5 Comments
The Calgary School. Taxpayer-supported Alberta institutions of higher larnin’ may not appear exactly as illustrated. Below: Firewall caballeros Tom Flanagan, Stephen Harper and Ted Morton.

Perfesser Tom Flannigan – wiki-sanction advocate, Stephen Harper confidante, Firewall sovereignist and proud member of the taxpayer-supported “Calgary School” of loony right-wing political “science” – recently wrote a sarcastic letter purporting to advise progressive academics on how to be as successful pushing their agenda as market fundamentalists like him have been.

Notwithstanding its smarmy tone, the Illinois-born Dr. Flanagan’s letter to the December 2010 edition of the Literary Review of Canada actually contains some pretty good advice for all of us on the progressive left, not just academics, which may be summarized as follows:

  • Write more clearly
  • Write about things that matter to people
  • Get involved in politics
  • Suborn your students into supporting your politics
  • “Have a long term plan for world domination”

Of course, Dr. Flanagan leaves out some things the right has done well, too:

  • Cultivate billionaire neo-fascists to bankroll your efforts
  • Have total control over all opinions expressed in the billionaire-owned mainstream media (and whine continually about its “liberal bias”)
  • Make a concerted effort to “defund the left”

Leaving aside the effort to drum up billionaires willing to finance our work as a waste of time, we should do the things on Dr. Flanagan’s list, and the remaining two on the other one as well.

We’ll leave the complex topic of how to compete with the mainstream media for another day to concentrate on the need to “defund the right.”

Now, the notion of “de-funding the left” has been around at least since Ronald Reagan was president of the United States in the far-right American circles that so clearly influence the thinking of people like Dr. Flanagan and his fellow Calgary Schoolmates Prime Minister Harper and would-be Alberta governor … pardon me, premier … Freddy Lee “Ted” Morton.

The Wikipedia defines “De-fund the Left” as a U.S. term “to describe efforts by conservative activists to eliminate government financial support for non-profit groups deemed to be ‘liberal’”

Naturally, the notion goes farther than merely depriving supposedly “liberal” organizations of funds from government sources. Ultimately, neo-liberal governments who want to shove their policy nostrums up the noses of a skeptical population will attempt create legal barriers to anything that makes groups that represent the interests of ordinary voters more effective.

This is what is behind Mr. Harper’s current campaign to undo Canada’s election financing legislation, the historic compromise by former Liberal prime minister Jean Chrétien to base political parties’ financing on capped citizen donations and popular support, rather than access to the corporations and plutocrats with the deepest pockets.

Now, Mr. Chrétien was a wily old fox and he included an element of de-funding the right in his legislation. After all, so-called conservatives – who are nowadays seldom conservative and usually dangerously radical – have a steep hill to climb in spreading their pernicious ideas to the general population.

They have succeeded over the past 30 years largely because they control essentially all of the media and the lion’s share of the money needed to market their destructive economic bromides. Thus, their strategy of subverting democracy relies heavily on their ability deprive the public of information inputs via the media, replacing those with their own spin and deception through advertising and bloviation of various kinds.

Indeed, we can observe both sides of this equation played out in Mr. Harper’s campaign against “subsidies” to federal political parties.

However, the same reasoning animates the prime minister’s legislative program to eliminate Canada’s long-form census questionnaire – a scheme viewed as insanity by professional statisticians, but which makes perfect sense from the point of view that solid facts can only harm the neo-liberal agenda that is pushed with appropriately religious fervour by Mr. Harper.

Likewise, the same motive underlies business assaults on Internet neutrality, because a key goal of the right is inevitably to choke off the flow of competing ideas in the so-called “marketplace of ideas.”

It is also what is behind campaigns among supporters of both the Alberta Progressive Conservatives and the Wildrose Alliance (who are often the same people, unsurprisingly) to put legal barriers in the way of unions using members dues for anything except “labour relations purposes,” extremely narrowly defined. They argue that members who pay union dues may not support all their leadership’s political program, as if all corporate shareholders also share the political views of corporate executives and all citizens share the opinions of the publicly subsidized nuts at the Calgary School.

In other words, these people intend to make it possible for provinces to explicitly make it illegal for unions to finance political campaigns by parties that represent the interests of working people at the same time as Ottawa throws the door open to corporate donations of any size, including donations from foreign companies laundered through their Canadian subsidiaries.

Arguably, this is even behind the Conservative campaign to de-fund the arts, since you can never be too sure just what kind of dangerous left-wing mischief artists might get up to.

Now, guided by the principle that what’s bad for the goose should also be bad for the gander, clearly it’s time for progressive voters and activists to turn their minds seriously to the idea of de-funding the right.

We can do this through a vigorous defence of fair election financing laws, and by continuing to push for some form of proportional representation in the way we select our democratic representatives. Where we lose those fights, well-funded progressive groups such as unions should pour money into political campaigns by centre-left parties with the abandon of foreign multi-nationals.

Where provincial labour laws and their penalties stand in the way, they should be ignored, as these laws can be effectively challenged on Constitutional grounds only once charges have been laid. Let a province that enacts such a law go to the Supreme Court to be taught that the Charter of Rights and Freedoms means something in this country, for now, anyway.

But it would be richly satisfactory as well, to take aim in public campaigns at other sources of funding for the right, including tax breaks for those billionaire-financed “think tanks” that are nothing but advertising agencies for the Shock Doctrine.

Moreover, it is time to take note of the direct subsidies to extreme right-wing propaganda through public universities. The “Calgary School,” for example.

It as an absolute disgrace that this profoundly un-Canadian coterie – whose members work tirelessly to undermine our society’s social safety net and freedoms of expression and association – do so while enjoying public salaries and generous pensions paid by taxpayers.

There’s never been a better time to start speaking aloud about de-funding the right, and there’s never been a better place to begin than by demanding that taxpayers no longer have to finance the anti-social activities of the “Calgary School.”

If this malevolent drivel is so important, let the corporations and political parties that benefit from it pay for it all!

This post also appears on rabble.ca.

The case against John Kelly: Canada’s unconstitutional Defamatory Libel law has no place in a democracy

by David Climenhaga on September 19, 2010 in Uncategorized with 6 Comments
Justice William J. Brennan Jr. of the United States Supreme Court. Below: the advertisement in the New York Times that turned U.S. defamation law on its head in 1964. Below that, Alberta Social Credit whip Joe Unwin, sentenced in 1937 to three months at hard labour for Defamatory Libel.

Calgary RCMP may have done Canadians a great favour by laying criminal libel charges against a man they accuse of running a website critical of Calgary city police.

With a little luck and the efforts of a capable lawyer, the Criminal Code offence of “Defamatory Libel” will end up on the scrapheap of history, where it belongs.

The Defamatory Libel provision of the Criminal Code and its Sharia-like sibling, Blasphemous Libel, have no place in the law books of a modern democracy.

On their face, these laws violate the Canadian Charter of Rights and Freedoms. Specifically, our guarantee of “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

Moreover, by any commonsense definition, they cannot be defended by the Charter’s qualifying clause, which states that its protections are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Adequate tools are available to the authorities and individuals to deal with obstruction of criminal investigations and defamations of police officers. These include the obstruction of justice provisions of the Criminal Code and the civil tort of defamation, which gives a police officer or any other person whose reputation has been besmirched the opportunity to sue for damages.

So if John Kelly of Calgary, who was arrested Thursday and also charged with obstructing a police officer from his duties, can find a lawyer willing to represent him, perhaps we can see Defamatory Libel proceed to the chambers of the Supreme Court of Canada for its long-overdue disposal.

Mr. Kelly’s website, according to the Calgary Herald’s prudently worded account, “accused officers of perjury, corruption and destroying evidence… Police deny the charges, saying they injure the reputation of Calgary police officers and interfere with an ongoing homicide investigation.” (RCMP are handling the case on the sensible grounds the Calgary Police Service ought not to investigate on its own behalf.)

The website is hosted in the United States, however. While, as the Herald pointed out, “RCMP can ask the New York-based Internet provider to take it down,” the Internet provider can also tell the RCMP its writ does not extend to New York State. Indeed, if memory serves, citizens of the United States established quite decisively in the late 18th Century certain limitations on the prerogatives of groups of men with the word “Royal” in their titles, mounted or otherwise.

The Internet provider may be inclined to do just this, owing to the fact that the country established after the rebellion of 1776 came to have, in the words of the United States Supreme Court, “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The Supreme Court of Canada would do well to consider the wisdom of the reasoning of that civil-rights era American case, New York Times Co. v. Sullivan, when it eventually considers the criminal prosecution against Mr. Kelly.

In 1964, Times v. Sullivan turned the law of defamation in the United States on its head, one American innovation we would do well to imitate in Canada. And while it related to the civil tort of libel, much of the reasoning applies directly to Canada’s absurd and unconstitutional Defamatory Libel criminal offence.

Mr. Kelly has expressed strong views about members of the Calgary Police Service, which the RCMP says it can prove are false.

Times v. Sullivan, a case involving strong statements made about Alabama police officers in an advertisement, established in the United States the important principle that the plaintiff in a libel case (that is, the person who claims to have been defamed) must prove that the person who made the statement knew that it was false or acted in reckless disregard of the truth.

This was necessary, Justice William J. Brennan Jr. of the U.S. Supreme Court wrote, because erroneous statements are inevitable in the kind of strong debate on which a democracy thrives, and freedom of expression needs “breathing space” in which to survive.

The Supreme Court of Canada has already gone part way down this road, creating in 2009 the new civil libel defence of “responsible communication in the public interest.” While this new defence still holds journalists and others to high standards, it does recognize that minor errors made in good faith alone should not result in a defendant being held liable for defamation – as long as the story is in the public interest.

Significantly, the Court also noted in 2009 that cases involving police officers accused of acting wrongly are clearly matters about which all citizens should be concerned and therefore can automatically be defined as being in the public interest.

Obviously, Justice Brennan’s courageous logic extends to the outrageous idea of criminal prosecution of defamatory statements, especially those made against powerful people and groups in society.

Indeed, this is especially true in the case of Defamatory Libel since the mere existence of this law combined with the aggression and prosecutorial powers of the police and courts will inevitably exercise a powerful chilling effect on the willingness of citizens to make legitimate criticisms of the authorities.

It’s been 73 years since we last had the opportunity in Alberta to do something about Canada’s iniquitous Defamatory Libel law. But since Social Credit MLA Joe Unwin and George Frederick Powell, advisor to the Social Credit Board, served time at hard labour for calling for the extermination of bankers’ toadies, we have a new tool to defend our fundamental rights – the Charter of Rights and Freedoms.

Thanks to the RCMP, now is the time to complete this long journey and purge the Criminal Code of this insult to Canadians’ freedom of expression.

This post also appears on Rabble.ca.