Category: Law

Posts about law-making, the courts, and legal concepts in general

Smiley on Canada’s Charter

“It was argued that rights could be safeguarded in an absolute fashion, but section 1 of the Charter reads, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” No prudent consumer would buy a refrigerator with a “guarantee” subject to such imprecise qualifications. The Charter would have been more honestly and accurately entitled “A Constitutional Enactment for the Better Protection of Certain Rights and Freedoms in Canada.” The problem is not, after all, the “guaranteeing” of rights, but rather the procedures by which government actors are permitted to define, rank, modify and override certain claims of individuals and groups.”

Smiley, Donald. “A Dangerous Deed: The Constitution Act, 1982” in Banting, Keith and Richard Simeon eds. And No One Cheered: Federalism, Democracy & The Constitution Act. (Methuen, Toronto). 1983. p.91 (hardcover)

Line 9 and the National Energy Board

If you want to get approval for a huge project with many risks and serious associated problems, one strategy is to get decision-makers to split up the question into tiny pieces. Forbid the people on one team from considering the issues another team is looking at. That way, you can prevent the consideration of interactions between effects and cumulative impacts.

This seems to be what Canada’s National Energy Board (NEB) does for pipelines. For instance, they have hearings upcoming in Toronto related to the Enbridge Line 9 pipeline. Currently, it carries conventional crude oil from east to west. The company wants to reverse the flow so it can carry diluted bitumen from the oil sands from west to east.

In these hearings, the NEB is only allowed to consider the direct effects and risks from the pipeline right here in Toronto. They are explicitly not going to consider the effects ‘upstream’ from oil sands extraction and processing. Likewise, the climate change damage ‘downstream’ cannot be considered.

The fact is, we need to be phasing out fossil fuels – not building infrastructure to facilitate their use into future decades. We’re past the point where building additional fossil fuel infrastructure makes sense, but the NEB isn’t allowed to consider the reasons for that.

Panel discussion on Tuesday

On Tuesday night at 7pm, I am participating in a panel discussion organized by University of Toronto Environmental Action and featuring MPP Peter Tabuns, environmental activist Angela Bischoff, and School of the Environment and Munk Centre Professor Erich Vogt.

Among other topics, we are meant to discuss: “How can young people get their voices heard in our democracy?”

I have some ideas of my own, but would be curious how readers would approach the question.

The event will be in the Music Room at Hart House, and should run until 9pm.

Burke on rights and generations

“The political philosopher par excellence of the organic constitution was the Anglo-Irish theorist and statesman Edmund Burke, who wrote a century after Locke. Burke did not share the Age of Enlightenment’s optimism about the capacity for each rational individual to discern fundamental political truths. ‘The individual is foolish, but the species is wise.’ Instead of abstract natural rights, Burke believed in the real rights and obligations which grow out of the social conventions and understandings that hold society together. For Burke, the social contract which formed the foundation of society was not between individuals here and now but from one generation to another, each handing on to the next the product of its collective wisdom. The Burkean notion of an organic constitution has little appeal for those who, unlike the English, have not enjoyed a long and relatively uninterrupted constitutional history. But it was certainly congenial to the Canadian Fathers of Confederation who, though organizing a new country, did not for a moment conceive of themselves as authoring a brand new constitution.”

Russell, Peter. Constitutional Odyssey: Can Canadians Become a Sovereign Poeple? Third edition. p.10 (hardcover)

Canada’s rules on charities and political activity

Canadian charities – especially environmental charities – now feel threatened that they will lose their special tax status if they engage in ‘political’ activity. The Canada Revenue Agency website describes the rules:

Registered charities are prohibited from partisan political activity, because supporting or opposing a political party or candidate for public office is not a charitable purpose at law. There are two aspects to the prohibition: the first restricts the involvement of charities with political parties; the second restricts the involvement of charities through the support or opposition to a candidate for public office. Charities engaging in partisan political activities risk being deregistered.

There is also a policy statement that further fleshes out the rules.

This means, for instance, that LGBT organizations cannot support candidates who support equal rights for their members or oppose candidates who want to restrict their rights. Environmental charities, likewise, cannot oppose parties or candidates that believe in the wholesale destruction of the natural world.

I think this overlooks the reality that large-scale social and political change always requires political agitation. Campaigns against child labour, or in favour of the rights of women, could never have succeeded if they did not engage with the political system. If society is going to continue to make progress, it seems sensible to recognize this and allow charities to pursue their aims through political means.

The current restrictions on political activity are especially objectionable in that they risk being selectively applied. Canada’s Conservative government is a strident defender of the oil sands and fossil fuel development generally, frequently advancing the laughable claim that this is an ‘ethical’ source of energy. Cracking down on charities for engaging in political activity is just another way in which the government can tilt the scales in favour of this destructive activity.

The scale of change which we need to achieve if we are to avoid catastrophic climate change is enormous. It requires major political change in countries like Canada. Allowing environmental charities to fund bird sanctuaries, but not to support or oppose parties or candidates, misrepresents the scale and character of our environmental problems. It also misrepresents the proper role of civil society in democratic societies, which does not end where the formal realm of ‘politics’ begins.

The ‘better out than in’ free speech argument

In Joseph Anton, Salman Rushdie describes the debate in the U.K. about whether to censor a film called International Gorillay which depicts a group of terrorists seeking to kill a character named Salman Rushdie.

Rushdie the author wrote to the BBC pledging that he would not sue them for libel if they showed the film. In his memoir, Rushdie calls the experience: “an object lesson in the importance of the ‘better out than in’ free speech argument – that it was better to allow even the most reprehensible speech than to sweep it under the carpet, better to publicly contest and perhaps deride what was loathsome than to give it the glamour of taboo, and that, for the most part, people could be trusted to tell the good from the bad. If International Gorillay had been banned, it would have become the hottest of hot videos and in the parlors of Bradford and Whitechapel young Muslim men would have gathered behind closed drapes to rejoice in the frying of the apostate. Out in the open, subjected to the judgment of the market, it shrivelled like a vampire in sunlight, and was gone.”

2012 climate change fast

Back in 2007, I participated in a climate change fast. It seems an appropriate sort of moral gesture to make in response to the problem, given that it is highly likely that climate change will disrupt agricultural patterns and lead at least some people to suffer from hunger as a result.

This year, between September 21st and October 2nd, another fast is being held in response to climate change: A Fast and Vigil for Climate Justice. The main twelve-day fast will be happening on Parliament Hill. The organizers are calling on people to contact their elected representatives, asking them to take action on climate change and eliminate fossil fuel subsidies. They also encourage people to write letters to the editors of newspapers, and to participate in one day of the fast themselves.

There is a website where people can pledge their support for the event.

I was also sent this program for the event by one of the organizers.

Drugs Without the Hot Air: Minimising the Harms of Legal and Illegal Drugs

Psychologically active drugs may be the least rationally regulated part of our society, with one dangerous and addictive drug advertised and available everywhere (alcohol) and only nudges to disocurage the use of another that kills five million people a year globally (tobacco). Meanwhile, police forces and court systems around the world tie themselves up with investigating, processing, and incarcerating people who own or sell small quantities of much less dangerous substances.

David Nutt was appointed as chairman of the British Advisory Council on the Misuse of Drugs in 2008: an expert panel intended to provide non-partisan advice on drugs to the government. He was fired in 2009 after pointing out that the chances of getting hurt from an hour of horseback riding are about 30 times greater than the odds of dying from taking a pill of MDMA (ecstasy). His book Drugs Without the Hot Air: Minimising the Harms of Legal and Illegal Drugs covers some extremely interesting ground in a convincing and well-argued way.

Nutt describes how policy-making in the area of drugs is often driven by a combination of media-enhanced hysteria and an effort on the part of politicians to seem ‘tough’ on the issue. He categorizes many of the harms that result from this, ranging from criminal records acquired by youth (which harm their lives much more than drugs) to harsh restrictions on the availability of painkillers around the world, leaving many with terminal illnesses to die in a great deal of pain.

Nutt also provides a nuanced and interesting description of the nature of addiction, distinguishing between people who rely on steady access to a drug to control and underlying condition (as diabetics use insulin) and those whose use of a drug has been sufficient to give them harsh withdrawal symptoms when they stop using it, which in turn drives them into a cycle of continuous use. Nutt argues that treating addicts as criminals causes a great deal of harm to the addicts themselves and to society at large, through mechanisms including the suppression of scientific research, the discrediting of the law through its obviously unjust application, the enrichment of criminal gangs, increasing the spread of infectious disease, diverting attention from controlling alcohol and tobacco, and the indirect encouragement of more harmful drug-taking practices because safer alternatives are not available.

My copy of the book is sprinkled with a few typographic errors which I am told have already been corrected in the newest printing. It’s also a bit challenging to square a few of the claims about the relative dangerousness of drugs. Early in the book, Nutt describes a complex exercise in which multi-criteria decision analysis was used to evaluate the relative harmfulness of a variety of legal and illegal drugs across sixteen dimensions, encompassing both harm to the individual and harm to society. The ranking found alcohol to be the most destructive drug overall, followed by heroin and crack cocaine. Methamphetamine, powder cocaine, and tobacco follow. Lower in the list are amphetamine, cannabis, GHB, and benzodiazepines. At the bottom of the scale are ecstasy, LSD, and psilocybin mushrooms. Between ecstasy and benzodiazepines – about 1/3 of the way up the harmfulness scale – Nutt lists ‘butane’ – an inhalant. Later in the book, however, he characterizes butane as extremely dangerous and capable of killing people on the first use if misused. Perhaps the scale is based on the proper administration of the drug. Still, it seems like a drug that carries a significant risk of accidental fatal overdose should probably be rated as more harmful than drugs like cannabis which carry no such risk.

Regardless of the exact ranking of harmfulness that is most appropriate, the book contains a great deal of interesting information, as well as an informative chapter on what parents should tell their children about drugs. Nutt argues convincingly that treating drug addicts as people with a serious medical problem makes more sense than treating them as criminals, and lays out a good case for why the supposed ‘War on Drugs’ has failed. He also provides some interesting information on the functioning of the brain and makes some suggestions about how drugs of all sorts could be regulated to reduce harm. He does a good job of pointing out the hypocrisy in our treatment of tobacco and alcohol and makes some sensible suggestions for how states could effectively discourage the use of the latter.

All told, Nutt’s book provides a scientist’s take on the various substances people consume with the desire to change their thinking, as well as the consequences of the production and use of those substances for individuals and society. By repeatedly pointing out the many areas where policies are poorly informed by reality and counterproductive, he makes a strong case for the need for drug law reform. Both for individuals who wish to educate themselves about drugs and for policy-makers who aspire to regulate them more appropriately, this book could be a very useful reference.

Nutt is now associated with the Independent Scientific Committee on Drugs which has a great deal of useful information about drugs and harm reduction on their website.