Canada’s first constitution of 1763

 

More than a century before the confederation of Canada in 1867, the Royal Proclamation of 1763 established a basis of government in North America. Peter Russell, in his book Canada’s Odyssey: A Country Based on Incomplete Conquests, calls the proclamation “the formal beginning of Canada’s constitution,” and adds:

King George III. Image: Wikipedia

“Accordingly, the Proclamation called for that essential institution of Anglo-American liberal government: a representative assembly. This plan of government reflected the fact that, in terms of constitutional and representative government, Britain was the most advanced European state of the day. …France was still an absolute, not a constitutional monarchy (p.29)”

It’s odd now to think of England as a model for government now, but at the time a progressive King George III empowered the colonies of North America to form government comprised of citizens empowered to: “make laws for the Public, Peace, Welfare, and good Government.” Colonial courts were set up as well for hearing “all cases, criminal as well as civil, according to Law and Equity, and as near as may be agreeable to the Laws of England.”

The force of the proclamation reverberated through the centuries.

The first shock wave was the revolution of the thirteen colonies of what is now the United States. They were not happy with the lines drawn on the map of North America by the King. Land west of the colonies as far as the Mississippi was assigned to Indigenous peoples. The thirteen colonies saw the proclamation as hemming them in from expansion to the west. Two years after the proclamation, the American Revolution started which led to their independence in 1776.

Treatment of Quebec had a better outcome. With the winds of independence drifting through the colonies, Britain decided to accommodate their new colony of Quebec. Wisely so, since Catholic French-speakers outnumbered the English. In the Quebec Act of 1774, French property and civil law was introduced and French-speaking Catholics held public offices.

Recognition of Indigenous land title took a little longer. Two and one-half centuries later, Canada is finally recognizing Indigenous entitlement laid out in the proclamation. Reactionary Canadian governments ignored the proclamation and proceeded with the subjugation and assimilation of Canada’s first peoples.

As one of the three pillars of the founding of Canada, Indigenous peoples were left out of the British North American Act in 1867. The French and English pillars were there says Russell:

“One of the first challenges for the infant Canadian federation was its relations with the absent pillar, the Indigenous peoples (p.163).”

Two centuries after the proclamation, patient Indigenous leaders reminded us of their exclusion. George Manual was one of those who rallied against the failed colonization of his people. As former chief of the Neskonlith band of the Shuswap nation and participant of the residential school in Kamloops, he collaborated with Michael Posluns in writing The Fourth World: An Indian Reality in 1974.

In a landmark court decision, against the wishes of the Province of B.C., the court ruled that Nisga’a territory had never been extinguished. We live on unceded Indigenous land in most of B.C.

The Royal Proclamation of 1763 is referred to in section 25 of our Constitution Act of 1982. And on the 250th anniversary of the proclamation in 2013 was celebrated in Ottawa with a meeting of Indian leaders and Governor-General David Johnston.

Now we’re getting somewhere.

 

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Removal of links and the death of history on the internet

Convicted killer Clifford Olson would probably have preferred that any account of his murder of eleven children and young people in the 1980s removed from the internet. Links such as this Wikipedia article which detail the grisly horror.

Courtesy of Gizmodo

Courtesy of Gizmodo

A B.C. technology company also wants links removed for a completely different reason. Equustek’s wants Google to remove links to a competitor’s website. Equustek successfully sued that competitor for theft of their hardware design but the competitor persisted on selling it online. The B.C. Supreme Court ruled in 2014 that Google had to comply with Equustek’s request and remove the links. Google complied reluctantly.

However, the court order lays bare a much bigger problem than murder or industrial theft –the erasure of history on the internet. At issue is whether anyone, of motives pure or corrupt, should be able to remove records of significant historical events. Katherine Maher from Wikipedia worries about the jurisdiction of any court to remove history.

“If any country can demand the worldwide removal of search results, vast sections of history, science and culture could disappear from the global Internet. This could infringe on our ability to learn about the history of Tiananmen Square, the potential medical properties of cannabis, the discoveries of Darwin, or unsavoury allegations against the U.S. president-elect (Globe and Mail, Dec 9, 2016).”

Google doesn’t think it’s fair either and has taken their case to the Supreme Court of Canada where issue is currently being deliberated.

But Google is just the messenger. They don’t make webpages, they just find them.  While I’m reluctant to defend global corporate giants, I’m on Google’s side on this one. So are lawyers Ivo Entchev and Jeremy Opoplsky. Not only has the Google been “deputized” to carry out duties of Canadian law but Google is not even incorporated in B.C.

“Google did nothing wrong, but is being forced to bear the cost and responsibility to fix the problem.” “Moreover, Google is concerned by the prospect that court orders from a single jurisdiction can require the search engine to change its worldwide results Globe and Mail Dec. 11, 2016).”

So far, the Supreme Court sees only the little picture. Dissuaded by the threat to history and Google’s argument that the court doesn’t have global jurisdictions, Justice Rosalie Abella was sympathetic to arguments from Equustek’s lawyer.

“Just looking at it from the public interest point of view and the public perception point of view, you really think the public is going to line up behind the right to distribute internationally illegal contraband?” Justice Rosalie Abella asked, “What’s the harm to Google in preventing illegal activity in its wide distributive reach (Globe and Mail, Dec. 6, 2016)?”

If I may respond, Madame Abella, the harm in preventing illegal activity through the deletion of links is that search engines are not the problem. Google is simply shining a spotlight on the grimy nooks and interesting crannies of the world; some of them are illegitimate businesses that well-intentioned Equustek would like to eliminate; others that murderers, tyrants and presidents-elect would prefer remain unseen.

Conservatives can increase chances by decreasing happiness

The antics of some Conservative leadership hopefuls are pathetic. Chris Alexander at a rally bobs his head in rhythm to the chants “lock her up” in reference to Premier Rachel Notley, tone deaf to the toxic implications; Kellie Leitch calls for immigrants to be tested for “Canadian Values” even though no such test exists and if it did, she would probably fail.

Huffington Post

Huffington Post

Trump-style populism into will not succeed because Canadians are not ripe for such politics –we need more inequality and the resultant unhappiness for this approach to work.

Inequality creates a sense of injustice and anger that manifests itself in a variety of ways. Jan-Emmanuel De Neve and Nattavudh Powdthavee researched the effects of inequality for the Harvard Business Review (January, 2016). They found that anger and stress increased in countries where the richest 1 per cent controlled the greatest share of wealth.

“In societies where the richest hold most of the country’s income, people were more likely to report feeling ‘stressed,’ ‘worried,’ or ‘angry’ on the day before the survey.”

Angry politicians appeal to angry voters. Trump’s anger is what propelled him into power; that’s why his racist and misogynistic views were largely overlooked. He was as mad as hell and wasn’t going to take it any more.

It’s not just anger that is affected. As anger went up, life satisfaction went down.

“We examined data from the Gallup World Poll and the World Top Incomes Database and found that the more income is concentrated in the hands of a few, the more likely individuals are to report lower levels of life satisfaction and more negative daily emotional experiences.”

Life satisfaction exacerbates unemployment. For every 1 per cent increase in the share of income of the top 1 per cent, unemployment rises by 1.4 per cent. There are a couple of factors involved –exporting jobs to areas of cheap labour increases profits; unhappy workers tend to be less productive, take longer sick leaves, and quit their jobs.

At the other end of the scale, greater wealth also creates unhappiness. Nobel laureates Daniel Kahneman and Angus Deaton calculated that day-to-day happiness peaks at an income of $75,000 a year, after which it plateaus. Inequality creates unhappiness at both ends of the wealth spectrum.

Canada is the sixth most happy country in the world according to the World Happiness Report behind the Scandinavian countries but ahead of the U.S. at thirteenth. Can you guess how these counties rank in equality? Right, the Scandinavian countries are the most equal followed by Canada and then the U.S.

Inequality is rising fastest in the U.S. where the top 1 per cent increased their wealth from 8 per cent of total wealth to 19 per cent in just thirty years (Scientific American, September, 2016).

Equality and satisfaction of life can be increased, and anger reduced, through fair taxes and benefits to the poor: like minimum wages, child care, job security, employment insurance, and an affordable education.

Conservative leadership hopefuls can increase their chances by increasing inequality and decreasing the happiness of Canadians by lowering taxes, increasing tuition, resisting wage hikes, and reducing job security.

The high cost of failure to rehabilitate sex-offenders

No one wants a sex offender living in their neighbourhood because they are a menace to society. The assumption is that they are incurable; that their impulses are so strong that they are certain to reoffend. But what if that assumption is wrong?

From website of Circles of Support and Accountability

From website of Circles of Support and Accountability

If offenders could be rehabilitated, communities would be safer but it would take a change in policy. The policies of the Harper government ensure that communities remain endangered.

The “tough on crime” policies of the Dark Decade meant government-legislated mandatory minimum sentences, capped incarceration credit for pre-sentence custody, limited parole eligibility, and plans to build more prisons to house pot-smokers,  mentally ill, and aboriginals –a plan that the U.S. advised against as I outlined in an earlier column (November, 2011).

Jonathan Kay, editor of Walrus magazine, says that there was eventually pushback even from conservatives. “Harper’s attitude toward criminals was so callous that even many Tory diehards began to push back (September, 2016). Kay quotes a conservative columnist regarding the closure of the prison-farm system. “When queried on the evidence for such measures or a broader philosophy of the role of incarceration in the criminal justice system, the justice department offers little more than slogans.”

Fortunately, rehabilitation is more than a slogan; it’s a plan. The prison-farm system is part of that plan because it provides education, vocational guidance and vital skills on how to improve the lives of prisoners and integrate them back into society.

The Liberal government plans to reopen prison farms on an “evidence based” approach. Minister of Justice Jody Wilson-Raybould has been instructed to review the justice system with a view to “increasing the safety of our communities, getting value for money, addressing the gaps and ensuring that current provisions are aligned with objectives of the criminal-justice system.”

Notice the difference? Safer communities does not mean just punishing prisoners but ensuring that when they get out that they are less likely to cause harm. The change in focus is from punishing offenders to securing society. Other than the visceral pleasure of revenge, punishment is no plan at all.

Another useful program that the Tories stopped funding was the Circles of Support and Accountability. This volunteer-run group was founded by Mennonites in 1994 and has proven results in keeping sex-offenders and pedophiles from reoffending. Studies suggest that they can reduce recidivism of sex offenders by as much as 70 per cent.

No wonder that the model of CoSA has been adopted by the U.S., Australia and New Zealand, and some European counties. Volunteers help men deal with landlords, stay sober, access food banks, and obtain government ID. More importantly, they help men avoid the triggers that that cause them to reoffend; help them deal with their guilt, shame, loneliness, and anger towards others. They are often the victims of abuse themselves.

This is not coddling the sickos, as avengers claim. This is protecting society. The CoSA program is not only effective; it’s cheaper than re-incarceration.

Clash of law, politics, treaty rights, and technology at Site C dam

Protests continue at the Site C dam location on the Peace River despite a court that allows building.  The Supreme Court of British Columbia ruled in September that attempts by the Prophet River and West Moberly First Nations to quash an environmental certificate issued by the government were invalid.

site c

“I am satisfied that the petitioners [first nations] were provided a meaningful opportunity to participate in the environmental assessment process,” Justice Robert Sewell wrote.

That didn’t stop Arthur Hadland from blocking construction. The long-time politician and area farmer was charged with mischief after being arrested earlier this month. “I don’t want to be a hero,” Hadland told CBC News. “Someone has to speak for the river.” He’s a Peace River Regional District director and ran as an independent in the last provincial election. Pat Pimm, who won the riding for the B.C. Liberals, is in favour of the dam.

Helen Knott of the Prophet River First Nation is occupying an historic trading post site in protest of the construction. Knott and her group are committed to defending treaty rights, even if it means being arrested.

“It’s not necessarily anybody goes into it with that idea, like, yeah, we’re going to be arrested, right? It’s that, yeah, we’re committed to saving this tract of land and to, you know, actively use our treaty rights here,” she told CBC News.

Knott’s view epitomizes a clash of cultures in B.C. This province is unique in Canada in that only two historical treaties were signed with indigenous people. As a result the question of land ownership remained unsettled for much of B.C. until the Tsilhqot’in decision of the Supreme Court of Canada. It ruled that, yes, B.C. natives had aboriginal title to a 1,750 square kilometres region.

The implications of the Supreme Court ruling are unclear. Globe and Mail reporter Jeffrey Simpson says: “The court’s ruling was complicated, which might explain the variety of interpretations. It did say that the Tsilhqot’in First Nation had aboriginal title over a portion of the land it had claimed, but by no means all of it.”

B.C.’s aboriginal leaders have a different interpretation. The Union of British Columbia Indian Chiefs and representatives of the First Nations Summit and the B.C. Assembly of First Nations argue that the ruling gives title to aboriginals over all of British Columbia, not just pieces where the courts decide title exists.

In a press release last June, First Nations affirmed that in one of four principles: “1) Acknowledgement that all our relationships are based on recognition and implementation of the existence of indigenous peoples inherent title and rights, and pre-confederation, historic and modern treaties, throughout British Columbia.”

In their view, in light of the ruling, nothing has changed from before European settlers came here.

From a technical viewpoint, there’s disagreement about the need for this dam. I argued a year ago that, while dams are an excellent complement to solar and wind, Site C will produce power that we don’t need now; especially not now that the scaled-down LNG plants won’t need the electricity. While the technology is sound, the location at site C isn’t at this time.

 

 

Stephen Harper’s gift to Canada

It’s not what he intended but former Prime Minister Harper has emboldened Canada’s Supreme Court and strengthened the Charter of Rights and Freedoms.

harper_family_christmas_card2011.jpeg.size.xxlarge.letterbox

Harper set out to remake Canada in his own image; a conservative unlike any Canada has seen before. Certainly not like the Progressive Conservative party that his amalgamation consumed; one based the libertarian principles Harper learned from his American professors at the University of Calgary.

Harper considered the Charter, introduced in by Pierre Trudeau in 1982, to be an artifice. But to Harper’s chagrin, the legacy of his nemesis has been strengthened.

It’s not for lack of trying. Harper tried to subvert the Charter by passing contrary laws.  Looking to emulate the U.S. system of making political appointments, he tried to stack the Supreme Court to support his subversion. That backfired as the judges he had appointed struck down laws he had passed, such as those on mandatory jail terms or illegal drugs.

Another approach was to kill of the Charter by a thousand cuts. In changing the law incrementally, he imaged that lots of small increments would add up to big change. Sean Fine, justice reporter for the Globe and Mail explains:

“On murder, he took away the ‘faint-hope clause’ that allowed for parole after 15 years instead of 25. Then he permitted the 25-year waiting period for a parole hearing to be added up in cases of multiple murders – 25 years on each murder. And then he promised life in prison with no parole for especially brutal murders.”

Harper tried to shut down the safe-injection clinic in Vancouver, Insite, where drug users could inject heroin with a nurse present, The Supreme Court ruled that shutting the clinic would severely harm, perhaps kill, drug addicts.

The Supreme Court ruling had the unintended consequence of making it harder for the Harper government to limit the rights of the vulnerable. Undeterred, Harper pressed ahead with prostitution laws, which the court unanimously ruled against decreeing that the laws endangered prostitutes.

More consequences of this legacy played out when the city of Abbotsford attempted to keep homeless people from sleeping in parks by spreading chicken manure.

“B.C. Supreme Court Chief Justice Christopher Hinkson, a Harper appointee, ruled for the homeless and against the city. Government should not cause physical or psychological harm to a vulnerable population, he said, citing the Insite ruling.”

Ghosts of a strengthened Supreme Court and the Charter brought in by Pierre Trudeau will haunt the son. Rulings have reduced the ability of all governments to impinge on rights.

Solitary confinement in federal prisons is being challenged based on the Insite ruling. If Justin Trudeau’s new Minister of Justice, Ms. Wilson-Raybould, attempts to defend the status quo, she could find herself taking a position on basic Charter rights similar to that taken by the Harper government.

“The result could be a supreme irony: Unless she moves quickly – on refugee health cuts, on mandatory jail sentences that fall most heavily on aboriginal peoples, on a spate of laws that reduce judges’ discretion – the Trudeau government will find that its justice-department lawyers are in court defending Harper-era policies whose goal was to remove perceived liberal bias from the justice system.”

Same-sex couples might restore shine to tarnished institution

The reputation of marriage is being ruined by a small group of people.  It’s already on shaky ground when you consider that one-half of all marriages end up in divorce.

Michael Stark, left, and Michael Leshner

    Michael Stark, left, and Michael Leshner

But even those doomed marriages begin with good intentions. They start with love in their hearts but infidelity, infirmity, and incompatibility take their toll. Despite solemn vows in which they publicly declare they will “have and hold each other until death do them part,” they end up divorced.

No, it’s not those men and women who are ruining marriage even though they will eventually fail at it.  Rather, it’s those who start off with bad intentions that are doing the most damage.

Consider, for example, the debacle of 50 women assembled in the “wedding capital of the world,” Las Vegas, to win a brand-new multimillionaire husband that they have  never laid eyes upon before.

Their motivation was greed, not love.  They were eager to make a mockery of marriage for money on the TV show “Who Wants to Marry a Multi-Millionaire?”. Darva Conger, a nurse from Ventura, California, was the “winner” of this farce. She was happily married to comedian Rick Rockwell for a whole two weeks before the marriage was annulled.

“I’m a Christian woman. If I’m not married in a church with a preacher, I am not married before God, and I am not married in my heart,” said the hypocritical Conger as she grabbed the money and later posed for Playboy magazine.

Modern marriage is taken so lightly by many men and women it’s hard to understand how some religious groups and political parties are so infuriated by the prospect of same-sex marriages.

Same-sex marriages may actually improve the reputation of marriage, if the first couple under Ontario’s new law is any indication.  Michael Leshner and Michael Stark tied the knot as soon as they legally could.  Michael and Michael had been preparing for this day for years.  It was a modest ceremony with 50 people in attendance.  The groom and groom wore the same dark suits and white shirts with ties.  “When we get married, we will have lit a match that hopefully illuminates the world,” said Lesher, as they toasted their marriage with champagne on the steps of the church.

Marriage is a cornerstone of our society.  It provides social stability with a public declaration of the love that two people have for each other.  Marriage should not be entered into greedily or frivolously.

Marriage can also be a declaration before God -a vow taken to adhere to the tenets of religion.  Religious practitioners object to same-sex marriages because they say that homosexuality is a sin.  They say that the Bible is quite clear about it. “Thou shalt not lie with mankind, as with womankind: it is abomination (Leviticus 18:22).

But same-sex couples can have strong religious views and apparently they read the same Bible.  One explanation for this difference of opinion is that there are actually quite a few “abominations” in old testament that modern Christians regard as unimportant – – such as the eating of eels and ospreys and sacrificed animals after the third day.  In that light, homosexuality is not a sin at all.

For some Christians, there is no religious basis for objecting to same-sex marriages.  “In Sunday school, I was taught that God created everything and loves his children, no matter what,” says Nicole Matus (The Daily News, July 10).  Matus argues that same-sex marriages must please God because he created people that way.

She also has some trouble with the evil of heterosexual couples who “starve their children, beat them to death, and sell them to prostitution rings.”   While the religious objection to same-sex marriages are misguided, at least they are understandable.

What’s puzzling are the political objections raised by the Canadian Alliance Party.  They lamely argue that parliament should have debated same-sex marriages instead of letting the Supreme Court of Ontario decide.

To test the Alliance’s argument, substitute “gun control” for “same sex marriage.”  The Alliance wishes that the Supreme Court would rule that gun control is unconstitutional so that parliament would rescind it. Parliament debated and approved gun control.

If all heterosexual couples went through the same scrutiny as same-sex couples, marriage might have a better reputation.  Where is the outrage at the damage to marriage caused by opposite-sex marriage?