Category: Law

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

Open thread: Michael Marrus and Massey College

For at least a year now people have been quite appropriately doing important work in questioning legacies of racism and institutionalized forms of racism at Massey College, including in the traditional use of the title “Master” to refer to the head of the College.

A hurtful, callous, and offensive remark made in the dining hall has added urgency to the discussion. It was described in the resignation letter of the scholar who made it as “a poor effort at jocular humour” and a “bad joke”. In part, Dr. Michael Marrus’ letter from 1 October 2017 says:

First, I am so sorry for what I said, in a poor effort at jocular humour at lunch last Tuesday. What I said was both foolish and, I understood immediately, hurtful, and I want, first and foremost, to convey my deepest regrets all whom I may have harmed. What I said was a bad joke in reference to your title of “Master,” at the time. I should never have made such a remark, and I want to assure those who heard me, and those who have learned about it, that while I had no ill- intent whatsoever I can appreciate how those at the table and those who have learned about it could take offense at what I said.

I’m not going to link the rather foolish editorials published by The Globe & Mail and the National Post (two papers that seem to share lazy assumptions and ineptitude much like Canada’s Liberal and Conservative parties). Some more meaningful commentary has already been in the public press:

Op-ed: Reconciliation at Massey College
An Indigenous Junior Fellow shares her story
By Audrey Rochette

Op-ed: The importance of forgiveness
A former Don of Hall reflects on moving forward from conflict at Massey College
By Juliet Guichon

Black faculty members pen letter condemning Marrus, coverage of incident
Open letter criticizes media outlets for framing incident as “political correctness run amok”
By Aidan Currie

In my six years at Massey College, I have had regular routine and polite interactions with Dr. Marrus. My only exposure to his academic work has been two lectures he gave on the theatrical quality of trials.

Responding to violence intelligently

The often-excellent NPR Planet Money podcast (which ran an earlier episode about “Freeway” Rick) had two notably engaging recent segments.

One included an interesting account of the data-analysis-decision-action cycle in intelligence work, specifically when deciding if an assailant is an enemy counterintelligence agent or drug-addled mugger.

The other discussed policy and incentive problems in the area of kidnapping and ransom, including Canada’s supposed policy of not paying ransoms and prohibiting families from doing so.

Each is well worth a listen.

Open thread: Chinese censorship

One mechanism of control used by the Chinese government is censorship of the media and the internet. Reportedly, this has been so comprehensive and successful that young people in China are unlikely to know about the Tiananmen Square protests of 1989.

This is an important example of how governments are often the biggest threat to internet users.

The Economist recently reported on government manipulation of Chinese television, as well as on academic publishing.

All this is relevant in part because of how China is a rising power but not a free society, as well as because of what it reveals about how the Chinese Communist Party maintains popular legitimacy and control.

The ‘right to be forgotten’

In Argentina and the European Union, people can assert a “right to be forgotten“, in which internet companies are obligated to delete content which those complaining are unhappy to have online.

There is also a Canadian connection:

In June Canada’s Supreme Court ordered Google to stop its search engine returning a result advertising a product that infringed on a firm’s intellectual property… The Canadian ruling against Google, which applies worldwide, could be just the start. Later this year the European Court of Justice will decide whether the EU’s much-contested “right to be forgotten” applies not just to Google’s European sites, but to all of them. This would mean that links to information about people that is deemed “inadequate, irrelevant or no longer relevant” in the EU will no longer be returned in response to any Google search anywhere. If the firm does not comply, it may face stiff fines.

The Economist raises the risk that allowing such censorship by governments could “create a ‘splinternet’, with national borders reproduced in cyberspace”.

I am fairly skeptical about rights-based approaches to ethics to start with, in part because they aren’t very useful as soon as one person is asserting Right A against someone else’s Right B. In this case, the other relevant rights are freedom of speech and what might be termed the freedom to record history.

I think all this is particularly risky when it comes to photography. In many places, the fact that a statement is true is a defence against allegations of slander or libel. Unedited photographs are in some sense always truthful historical records, but there are nonetheless many reasons why people aside from the photographer or the media source using them might want to see them purged. Letting people use a supposed extension of their right to privacy as a mechanism for censorship risks stifling artistic and creative expression, as well as depriving the world of information about what really happened in various times and places.

It’s not surprising that people want unflattering things about themselves removed from the internet, from criminal records and critical news stories to photos they dislike and things they wrote themselves but came to regret. At the same time, the people who post media online have an interest in keeping it up, and the world as a whole has an interest in knowing what has happened in the past. Granting people the power to use the courts to manipulate the historical record seems worrisome to me, as well as a substantial burden for all the platforms where such records are stored.

One downside to electronic media of all forms is the possibility of after-the-fact censorship, which would be impractical for things like printed books and newspapers.

Alcohol’s societal role

In many ways, the treatment of ethanol in societies like Canada is exceptional.

It’s the only powerfully psychoactive drug top-end hotels and restaurants will provide you in unlimited quantities as long as you can pay. It’s the only drug that large groups of strangers routinely use to the point of inebriation together, in contexts ranging from weddings to club meetings to fancy dinners at universities. In places like Ontario where it is sold by the government, the government actively advertises it, while simultaneously notionally trying to prevent unhealthy use (which is probably any use, despite self-serving studies that purport to show health benefits from moderate consumption of this known carcinogen).

The societal burden of ethanol is spectacular. The Economist notes:

Between 2006 and 2010, an average of 106,765 Americans died each year from alcohol-related causes such as liver disease, alcohol poisoning and drunk driving—more than twice the number of overdoses from all drugs and more than triple the number of opioid overdoses in 2015… The percentage of Americans who met the criteria for alcohol-use disorder (AUD) in the DSM-IV—a psychiatric handbook that uses questions such as, “In the past year, have you found that drinking—or being sick from drinking—often interfered with taking care of your home or family?” to diagnose alcoholism—jumped from 8.5% of Americans in 2001-02 to 13% in 2012-13, or nearly 30m people. By comparison, 2.6m are estimated to have prescription-opioid and heroin addictions… Analysis by Phillip Cook, a professor at Duke University’s Sanford School of Public Policy, published in 2007 suggested that whereas 30% of Americans did not drink at all in 2001-02, 10% of Americans—or about 24m—had an average of ten drinks a day. He believes such habits would not look different today.

The Washington Post reported recently on a study which concluded that one in eight Americans meets the diagnostic criteria for alcohol use disorder, adding: “Stunningly, nearly 1 in 4 adults under age 30 (23.4 percent) met the diagnostic criteria for alcoholism.”

I think a few responses to this are prudent:

  1. Alcohol advertising should be banned in areas including billboards, print media, and television
  2. Plain packaging requirements like those used for tobacco may be prudent to try
  3. Alcohol corporations should pay a significant share of the cost of treatment for alcohol dependence and alcohol-induced chronic health conditions, and treatment availability should be greatly expanded
  4. Alcohol licenses should be experimented with, which could be revoked for those imposing risk or harm on others
  5. We should support research into less damaging substances which could play a similar social role, like the alcohol-replacing benzodiazepine David Nutt is searching for
  6. Combat the ideological dogmatism in the treatment system, including the idea that total abstinence is the only goal to pursue or that AA-style 12-step programs should be a mandatory part of treatment

Related:

Canada’s courts and Indigenous rights

One privilege during my time at U of T was to take Peter Russell’s class on Canada’s history as a series of incomplete conquests in 2013.

He taught the class for several years running to a mixed group of undergrads and grad students, using it partly to help him refine the new history of Canada he was writing.

That book has now been released: Canada’s Odyssey: A Country Based on Incomplete Conquests.

The paper I wrote for the class was called “The judiciary in the lead: Aboriginal politics in Canada’s post-Charter era“. Russell addresses the subject in the finished book:

The Supreme Court of Canada, as the Powley case demonstrates, continues to be a major player in the resurgence of aboriginal peoples. This is true in other common law countries with colonized native peoples within. The high courts of Australia, New Zealand, and the United States are now playing an important role in shaping the rights of Indigenous peoples in their countries. Indeed the Supreme Court of Canada’s decision in Calder, which was instrumental in changing Canada’s Aboriginal policy in the 1970s, was the crucial precedent in the Australian High Court’s Mabo decision, which changed Australian policy in the 1990s. For Indigenous peoples, as small minorities within democratic countries, resorting to the courts to vindicate rights and defend interests makes good sense, especially when the courts are rooted in the common law tradition of judicial independence and law development, and their judges are no longer soaked in the racism of earlier settler generations. The courts in all four common law countries, in varying degrees, have been relatively liberal in responding to the legal claims of Aboriginal peoples. Their decisions have often been out front of elected politicians, forcing changes in the policies of their governments. But their agency as instruments of full decolonization is limited. They are still the “white man’s courts,” not only in their composition, but also in the justices’ belief that Indigenous peoples are subject to the overriding sovereignty of the settler state.

The Supreme Court of Canada has made its most important contributions to advancing Aboriginal rights in decisions relating to native title. The Court’s 1997 decision in Delgamuukw confirmed that native title was one of the existing Aboriginal rights recognized in section 35 of the Constitution Act, 1982, and spelled out some of its features. Native title is communal, rather than individual. It confers on the society that it has full ownership of the land and its resources, including subsurface minerals. That was the good news. But much of the Court’s treatment of native or Aboriginal title has dealt with its limitations. First, Aboriginal people cannot sell any part of their lands on the private market; native title land can only be sold to the Crown — that is, the Government of Canada. A second limitation smacks of paternalism: the Aboriginal people that hold native title can develop the land in non-traditional ways, providing a development does not undermine their historical attachment to the land. The Supreme Court gave two examples of what it would not allow a native community to do to its own lands: strip-mine a hunting ground or pave over a burial ground for a parking lot. A third limitation underlines the continuing colonialism in the Court’s thinking. In common law, native title is understood as a “burden” on the Crown’s sovereignty, and in discharging the Crown’s — that is, the federal or provincial government’s — responsibilities to the larger community, there might be compelling and substantial circumstances that could make an infringement of native title justifiable. Chief Justice Lamer, who wrote the principal majority opinion, asserted somewhat casually that “the development of agriculture, forestry, mining, hydroelectric power, and general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations” — any of these — “can justify the infringement of aboriginal title.” The Court’s purpose in fashioning this new law, the chief justice explained, was “to reconcile the pre-existence of aboriginal society with the sovereignty of the Crown.”

…

A duty to consult native owners and try to accomodate their interests before pushing through projects on their lands might be better than nothing, but it is still a far cry from affirming Aboriginal peoples’ constitutional right to protect and develop their lands and resources.

Russell, Peter. Canada’s Odyssey: A Country Based on Incomplete Conquests University of Toronto Press, 2017. p. 434–6

Indirect activism effects

The fact that about 17,000 blacks traveled to the courthouse attests to the persistence of the volunteers and the extraordinary courage of those attempting to register. Although only 1,600 of the completed applications were accepted by state registrars, the lonely trips to the courthouse proved to be a major step toward the democratization of voting in Mississippi and throughout the South. The many instances of delay, obstruction, and harassment of the applicants were duly recorded by the volunteers, thus providing the evidence for several important voter discrimination suits. In addition, the inequalities uncovered over the course of the summer helped to generate momentum on behalf of the 1965 Voting Rights Act.

Just as important as these formal political consequences was the effect this activity had on the black community. For its part, the white community observed the registration attempts with something more than benign indifference. In many communities, newspaper editors did their share for the old order by printing daily lists of those attempting to register, thereby making the names of the registrants available to anyone who might by inclined to take offencse at such a brazen act of defiance. Historically, the publication of such lists had been enough to deter all but the most courageous, or craziest, blacks from trying to register to vote. But as more and more people donned their Sunday best for the trip to the courthouse, a curious thing happened: the daily newspaper lists of those registering to vote were transformed from an effective means of social control into a vehicle for gaining prestige in the black community. As one volunteer proudly noted in a letter home, “in Panola County now the Negro citizens look with pride at their names in the Panolian; they point out the names of friends and neighbours and hurry to the courthouse to be enlisted on the honour roll.”

McAdam, Doug. Freedom Summer. Oxford University Press; Oxford. 1988. p. 81

Keystone XL uncertainty and the environmental movement’s proficiency at saying no

It’s astonishing that the fate of the Keystone XL pipeline remains unresolved.

First, it shows how for activists determined to block a project it’s only necessary to make one jurisdiction say no. This is akin to the argument in computer security that the structure of vulnerabilities favours attackers over defenders; defenders need to protect every possible vector, while attackers just need one way in.

Second, this validates pipeline delay as a strategy. Using all available legal and political means to delay a project raises investor concern and probably the cost of financing. Since the point of blocking pipelines is blocking upstream bitumen sands development, creating uncertainty about any part of production, transport, and sales may help us avoid building inappropriate high carbon infrastructure.

Third, this supports George Hoberg’s concern (also raised by David Mackay) that the environmental movement has become highly capable at blocking projects but often lacks and skills and inclination to say yes to climate safe forms of energy.

Sometimes working for the ACLU is fun

Step 1: British comedian John Oliver produces an absurd segment about coal CEO Bob Murray:

In it, Oliver acknowledges Murray’s history of litigiousness toward critics and challenges him to do his worst.

Step 2: Murray sues Oliver for defamation in West Virginia circuit court

Step 3: As reported in Slate, Jamie Lynn Crofts of the American Civil Liberties Union of West Virginia files one of the world’s funnier legal documents in the form of an amicus brief to the court

As John Stuart Mill said about freedom of speech in general: “Strange it is that men should admit the validity of the arguments for free speech but object to their being ‘pushed to an extreme’, not seeing that unless the reasons are good for an extreme case, they are not good for any case”.

Political speech, news reporting, and satire all deserve special protection in the public interest. Hopefully this whole back and forth will discourage those who face criticism in the future from seeking to suppress it through the courts of a free society.

New jurisprudence on the duty to consult

From CBC News: Supreme Court quashes seismic testing in Nunavut, but gives green light to Enbridge pipeline

I think the Supreme Court is erring in maintaining the view that Canada’s Indigenous communities should not have the right to reject proposed resource development projects that affect their territories.

The land that supposedly belongs to the Crown and to private citizens was dubiously acquired by agreements concluded under duress, and never implemented in good faith by government or private industry. Denying Indigenous communities the ability to reject dangerous projects in the lands they retain control over is an unacceptable imposition by any other part of Canadian society. If resource extraction sites or export corridors are to be partly situated in Indigenous territory, it should only take place in the context of a voluntary partnership between those with an interest in the health and integrity of the land and those who are proposing dams, bitumen sands mines, wind farms, concentrating solar and solar photovoltaic sites, high-voltage power lines, nuclear power plants, etc. It’s to be expected that ownership and decision-making of such projects should be a shared undertaking between governments.

Canada’s history of bad faith and exploitation means they are the party to such agreements that ought to be viewed with suspicion and considered on parole. The heart of Canada’s grim legacy of settler-Indigenous relations lies in forcing people to accept the ways we want them to live. Any plausible pathway to reconciliation must be based on consent.