Category: Law

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

Toronto350.org bibliography party

One element of developing Toronto350.org has been learning how to do complex cooperative work using a devoted group of volunteers.

This afternoon, we are having a ‘bibliography party’ for our University of Toronto divestment brief.

We will be taking all the sources people have collected and putting them into biblatex format. It will then be easy to incorporate them into our LaTeX document and produce nicely formatted footnotes and a good bibliography.

Then it will just be a matter of finishing each section of the brief and sending it out to experts for comment. It will need to be run by some people who can comment on the science, others who can comment on the law, and others who are familiar with the U of T administration.

In the end, we should have an authoritative and meticulously cited document explaining why divestment makes ethical and financial sense, and why it is in keeping with the university’s existing divestment policy.

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.