Huffington Post Canada

The Conservatives’ clever ploy with the Truth in Sentencing Act

The Supreme Court’s recent ruling on the application of the Truth in Sentencing Actwas depicted in various media outlets as being part of a trend of recent decisions rebuffing the Conservative government’s justice agenda. While this could describe a number of recent decisions, the current ruling is more nuanced.

According to the Canadian Press:

They also represent the latest in a series of court rebukes of the Conservative government’s law-and-order agenda.

Sean Fine in the Globe and Mail likewise stated:

The Conservative government’s attempt to detain thousands of prisoners for longer periods has been blocked, in the newest in a series of crushing defeats at the Supreme Court of Canada.

As the Supreme Court decision notes, enhanced credit is often provided for accused who have been remanded in jail, and historically, there were no restrictions on the reasons for giving credit or the rate at which it was granted. A practice developed over time to grant credit at a 2:1 rate. The new Truth in Sentencing Act caps pre-sentence credit at 1.5:1, but does not discuss which circumstances justify enhanced credit.

Continue reading

Advertisements
Standard
Huffington Post Canada

Oath to Queen is a political question, not a legal one

Three permanent residents in Canada recently challenged the requirement to swear an oath to the Queen in order to obtain citizenship, claiming that it violated their Charter rights to free expression and religion, and that it discriminated against people of other national origins. A very similar case has, in fact, already been heard in federal court in 1994 in Roach v. Canada, where all of these claims were struck down.

Challenging Canadian citizenship laws should be done through Parliament, rather than the courts. The dispute is a political one: the appellants are, in effect, disagreeing with Canada’s political structure as a constitutional monarchy. The Head of State is the Queen, and the law requiring the oath is a statute which has been passed by Parliament (and can thus also be repealed by Parliament). However, the appellants clearly have much broader concerns and would feel stymied by any interaction with the Crown. They must certainly feel wronged by living in a country in which the Monarch’s representative must assent to all laws passed by Parliament. It is spelled out in the Constitution that the Governor General declares:

[…] according to his Discretion […] either that he assents thereto in the Queen’s name, or that he withholds the Queen’s Assent, or that he reserves the Bill for the signification of the Queen’s Pleasure.

Continue reading

Standard
Guelph Mercury

Does court ruling create leniency for non-residents?

Hoang Anh Pham, a non-citizen, was convicted of producing and possessing marijuana for trafficking for being a “party” to a marijuana grow-operation in Calgary in 2010.

The Provincial Court of Alberta issued a two-year sentence for the offence, a sentence that triggered an automatic deportation order.

Section 64 of the Immigration and Refugee Protection Act prevents any non-citizen from appealing a deportation order “if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.” Serious criminality is defined as a crime that receives a prison term of two years or more.

Pham, a Vietnamese citizen, requested that the punishment be reduced by a single day. While this seems symbolic, a single day provides the opportunity for permanent residents such as Pham to challenge deportation orders issued against them.

Continue reading

Standard
Huffington Post Canada

When transparency can hurt democracy

A Department of Justice lawyer, Edgar Schmidt, recently challenged his employer in court, alleging that the process that the Department uses to analyze whether proposed legislation is in accordance with the Charter is against the law. Schmidt alleges in his claim that since 1993, the Department of Justice has not been informing the Minister about potential Charter inconsistencies as long as “some argument can reasonably be made in favour of its consistency – even if all arguments in favour of consistency have a combined likelihood of success of 5% or less.”

This 5% chance of success rate is the cause of the controversy. Schmidt, in his claim, notes that section 4.1(1) of the Department of Justice Act legally obligates the Minister of Justice to analyze every bill to determine whether any provisions are inconsistent with the Charter, and to report these to the House of Commons. He asks for a judge to declare that this section require a “more-likely-than-not inconsistent” approach, essentially a 51% chance of inconsistency, as opposed to the alleged current 95% chance of inconsistency, to require notification to the Minister. The Department of Justice will not confirm its internal procedures, citing solicitor-client privilege and Cabinet confidence.

Continue reading

Standard
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.

Continue reading

Standard
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.

Continue reading

Standard
The Prince Arthur Herald

The UNHRC should focus on real human rights violations

The United Nations High Commissioner for Human Rights recently took aim at the Quebec government’s Bill 78, arguing that it restricted the right of students to freedom of association and freedom of peaceful assembly. In a speech of five pages, Quebec is mentioned in two lines; this same speech touched on international human rights violations in countries like Syria, Mali, Nepal, Mexico, and Russia.[1]

One must begin to seriously wonder whether the Commissioner has read Bill 78. Employees must report back to work (s. 10), but may still strike (s. 12). The bill prohibits the act of denying a student’s right to attend or access a university (ss. 13-14). Additionally, the organizers of demonstrations with more than fifty people must provide the date, time, venue, and location of the strike route; if the venue “poses serious risks for public security,” the police may require a change of venue (s. 16). The fines for blocking access to a university or participating in an illegal riot are between $1,000 and $5,000; this increases to up to $35,000 for student union leaders, or $125,000 for a student union.

Continue reading

Standard