Guelph Mercury

Municipalities fighting good fight on cell tower locations

The rash of new cellphone towers being built across Canada has led concerned citizens and several municipalities — including Guelph — to speak out against such developments, on the grounds that they devalue property and pose potential safety risks.

The health impacts of the towers have not been widely analyzed in Canada. However, the European Parliament passed a resolution in 2009 that notes in its preamble that wireless technology emits electromagnetic fields “that may have adverse effects on human health.”

Provinces exercise exclusive power over “property and civil rights” under s. 92 (13) of the Constitution Act, 1867, which they can delegate to the municipalities, which have no constitutional status. Since cell towers are a sort of property, it would seemingly appear that provinces have jurisdiction over them. However, telecommunications has been interpreted exclusively as a federal power despite not being enumerated in the Constitution.

In the Supreme Court’s Radio Reference of 1931, a majority of the justices ruled that telecommunications is an exclusive federal power. Justice Robert Smith, for instance, decided that legislation regarding radio technologies does not deal directly with property or civil rights in the province. Since it does not fall under any enumerated ground, most of the justices found that such regulations fall under the federal government’s power, since all powers not specifically enumerated are granted to the federal government under the “residual powers” doctrine. However, two out of the five justices found that Parliament’s jurisdiction was not exclusive, since the “receiving apparatus” is a piece of equipment, or property, that must be erected within the province.

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Guelph Mercury

Speaker’s ruling a small win for democracy

On April 23, House of Commons Speaker Andrew Scheer released a ruling on a point of privilege raised by Conservative MP Mark Warawa that opens the door for more free speech by members of Parliament.

Warawa argued that his own party’s chief whip had violated his freedom of speech by preventing him from speaking on an unapproved topic during the time allotted for members’ statements.

Members’ statements are governed by Standing Order 31, which states: “A member (of Parliament) may be recognized … to make a statement for not more than one minute. The Speaker may order a member to resume his or her seat if, in the opinion of the Speaker, improper use is made of this standing order.”

According to the compendium of procedure of the House of Commons, statements by members take place for one hour daily and are allotted for “members who are not (cabinet) ministers … to address the House for up to one minute on virtually any matter of local, provincial, national or international concern.”

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Guelph Mercury

Parliament should review niqab ruling

The Supreme Court of Canada ruled in December that niqabs — full-face veils — could sometimes be worn by witnesses in court depending on the context.

In a case involving a Toronto woman identified only as “N.S.,” the court was asked to balance a niqab-wearing witness’s freedom of religion versus a defendant’s right to a fair trial in a sexual assault case.

In weighing these rights against each other, the court ultimately adopted a balanced approach. However, it split in a 4-2-1 decision (with Chief Justice Beverley McLachlin writing for the majority), adopting a “just and proportionate balance between freedom of religion on the one hand, and trial fairness on the other, based on the particular case before the court.”

Justices Louis LeBel and Morris Fish, meanwhile, argued that niqabs must never be worn in the courtroom, while Justice Rosalie Abella, in a dissenting opinion, stated that a witness should only have to remove a niqab if her face is directly relevant to the case.

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Guelph Mercury

There’s a need to review judicial appointment process

Troy Riddell and Samuel Mosonyi.

Justice Richard Wagner, the newest judge on the Supreme Court of Canada, caused a stir in December when he suggested that the process used by the federal government to appoint judges below the Supreme Court level — primarily to superior trial courts and courts of appeal in the provinces — be reformed.

Potential appointees, according to Wagner, should appear publicly before a parliamentary committee as he did before his recent appointment to the Supreme Court. Wagner, however, indicated that for practical reasons hearings for now could be limited to appeal courts only.

There was a mixed reaction to Wagner’s comments. One law professor, for example, argued that this would Americanize the system and lead to the appointment of judges who were too deferential to government. Meanwhile, the Globe and Mail editorial board endorsed the suggestion, arguing that since judges have more power to influence policy, they deserve greater public scrutiny. The Charter of Rights and Freedoms inarguably gives judges a more significant role in the area of policy-making relative to the legislatures.

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Guelph Mercury

A logical decision in anti-terrorism case

Convicted terrorist Momin Khawaja disagrees fundamentally with Canada’s anti-terrorism laws, believing they are an unfair infringement on his rights under the Charter of Rights and Freedoms to express himself freely.

The Supreme Court, in a unanimous, commonsensical decision, struck down this argument Dec. 17 and increased his sentence of 10½ years to a life sentence.

Khawaja was the first Canadian charged under the new anti-terrorism laws enacted after Sept. 11, 2001 for assisting a group of London Islamists who planned to build and detonate bombs made of fertilizer in shopping malls, nightclubs and other targets.

Khawaja sent a number of emails to those involved with the plot, provided funding to them, designed a detonator for the explosives which he planned to smuggle into the United Kingdom, and offered to provide training to the group. The emails he sent documented his ideological commitment to jihad. He also travelled to Pakistan to attend a terrorist arms training camp.

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Guelph Mercury

City should rethink details of proposed nuisance bylaw

Dennis Baker and Samuel Mosonyi.

The City of Guelph is currently in the process of drafting a new public nuisance bylaw to provide bylaw and police officers “with tools to address minor, unwanted behaviour or activities on city-owned property and, in certain limited cases on private land, without laying criminal charges.”

According to the report of the city’s operations, transit and emergency services committee, Guelph has had a number of incidents and “undesirable gatherings” on both public and private land, and staff do not have sufficient tools at their disposal to protect the interests of the city.

Guelph’s proposal is part of a rash of municipal bylaws enacted across the country that seek to supplement the federal Criminal Code by establishing minor penalties (typically fines) for misconduct deemed too minimal to attract criminal prosecution.

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Guelph Mercury

Time for the public to weigh in on proroguing

The political community exploded with interest Monday when Ontario Premier Dalton McGuinty unexpectedly announced he is resigning.

In an email sent to Liberal supporters, McGuinty reiterated his request to the party president to hold a leadership conference at the earliest possible time, at which point he will resign. Additionally, he prorogued the legislature, using the rationale of allowing discussions on public-sector wage freezes to “occur in an atmosphere that is free of the heightened rancour of politics in the legislature.”

Some have speculated that, in reality, the prorogation was due to other factors, including the contempt motion brought against Energy Minister Chris Bentley for allegedly delaying the release of documents related to the cancellation of two gas-fired power plants. McGuinty had acknowledged the seriousness of the contempt motion, noting that Bentley is at risk of being the first cabinet minister to be found in contempt of the Ontario legislature.

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Guelph Mercury

Conservatives should have whipped cabinet on abortion vote

Kitchener Centre Conservative MP Stephen Woodworth’s private member’s Motion 312, which was defeated last Wednesday in the House of Commons, enraged many.

It proposed striking a special ad hoc Commons committee to review Criminal Code section 223 (1), which states: “A child becomes a human being … when it has completely proceeded, in a living state, from the body of its mother.” The motion proposed to review this, taking into account new medical and legal evidence.

According to the House of Commons Procedure and Practice, private members’ motions mean “the government is not bound to adopt a specific policy or course of action as a result of the adoption of such a resolution since the House is only stating an opinion or making a declaration of purpose.”

Party discipline, for better or worse, constrains MPs from voting their conscience on important government bills and matters of confidence. This motion was not a government bill. Prime Minister Stephen Harper, the party whip, and most of the Conservative cabinet opposed the motion.

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Guelph Mercury

Should Canada be at ease with its judicial activism?

The Canadian Constitution, the supreme law of the land, allows judges to invalidate laws that are unconstitutional.

Constitutionality rulings can be thorny, as they often involve significant value judgements that pit constitutional rights against the objectives of legislatures. For example, earlier this summer a British Columbia judge gave permission for a terminally ill woman to commit suicide with the assistance of a physician. The case is currently on appeal to the B.C. Court of Appeal.

Assisted suicide is a criminal offence and physicians are deterred from providing it by current law. Justice Lynn Smith, in her ruling on the constitutionality of the prohibition on physician-assisted suicide, noted Canadians travel to Switzerland for assisted suicide at high cost and possible risk of criminal prosecution for relatives.

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