Ottawa’s March for Life flag flap

Ottawa is facing a flag flap. The National March for Life flag was raised at city hall in the morning on May 11, 2017 and taken down in the afternoon. As Canada’s capital city you can easily imagine that Ottawa hosts a number of local, provincial, national and international events. Many are accompanied by the symbolic raising of a flag at city hall. That flag pole has become something of a symbol for free speech.

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For the twentieth year in a row thousands of Canadians filled the lawn and sidewalks of Parliament Hill, the seat of our democracy. The past few years, police have erected barricades on Parliament Hill and along the march route. Not to control pro-life participants but to protect them from opponents who in recent years have engaged in hateful, and harmful, displays such as throwing condoms and other items at marchers, spitting on marchers and other acts designed to provoke a negative response.

Canada’s absent legal protection for children prior to birth is an issue of much conversation but little action from the majority of Canadian politicians. The limited action of today’s political environment includes Prime Minister Justin Trudeau’s edict that those who support protection for children before birth are unwelcome in the political party he leads, and the written demand from several Ottawa city councillors that the flag be taken down. In the process, the Prime Minister and councillors mistakenly assert a “right” to abortion as their rationale.

The matter of unregulated availability of publicly funded abortion in Canada is the result of a Supreme Court of Canada decision made in 1988, and the subsequent failure of Parliament to follow the court’s direction to enact suitably constitutional legislation for the protection of children prior to birth.

At issue in the Morgentaler case was a section of the Criminal Code that became law in 1969. Section 251 maintained abortion as illegal in Canada, providing exception only for instances of medically therapeutic reasons. The exception to the continuing general prohibition required the abortions to be performed in a hospital following review and approval of the health reasons by a committee of three doctors.

The Prime Minister of the day was the current Prime Minister’s father. In regard to the new law Pierre Trudeau stated,

You know, at some point you are killing life in the foetus in self-defence – of what? Of the mother’s health or her happiness or of her social rights or her privilege as a human being? I think she should have to answer for it and explain. Now, whether it should be to three doctors or one doctor or to a priest or a bishop or to her mother-in-law is a question you might want to argue …. You do have a right over your own body – it is your body. But the foetus is not your body; it’s someone else’s body. And if you kill it, you’ll have to explain. (Montreal Star, May 25, 1972)

In 1988, the Supreme Court of Canada found that the requirements to first meet with a therapeutic abortion committee and then have the medical procedure performed in a hospital posed a risk to life for women who might qualify for a legal abortion but would experience delays because of their distance from a hospital with a therapeutic abortion committee.

In a blog from May 27, 2014, I noted:

In speaking to law school students on this case, I conduct a brief show of hands quiz on whether they have been taught in first year constitutional law that there is a right to abortion and whether they have actually read the Morgentaler 1988 decision for themselves. The majority typically say yes to the former and no to the latter.

I encourage those law students, you, and Mr. Trudeau, to read the decision. It’s available online. Don’t worry about whether you will understand the legalese. Instead, make three columns on a piece of paper. In the first column write the names of the seven judges who decided the case. In the second column put a check mark beside the name of each judge who decided there is a constitutional right to abortion. In the third column put a check mark beside the name of each judge who decided it is the jurisdiction of Parliament to make a law prohibiting or restricting abortion. You’ll end up with seven check marks in the third column and none in the second (unless you place one beside Justice Wilson based on a disputed statement; and still, you’ll put a check beside her name in column 3). The Supreme Court Justices even offer their opinions on what a constitutionally acceptable abortion law would look like.

The court was unanimous that Parliament has a constitutional interest in the child before birth. In fact, shortly after the decision, a legislative attempt to replace the section struck down in Morgentaler passed the House of Commons, passed two votes in the Senate and then died because of a tie on the final vote. Several Senators were absent for the third vote, and the Speaker of the Senate determined that on a tie vote it was his responsibility to declare that the proposed legislation had not passed and therefore he voted against it.

Since that time Canada has remained without legal protection for the “someone else’s body” identified in the statement made by Prime Minister Pierre Trudeau. Distinctly, the only democracy in the world that fails to offer protection even to the medically viable pre-born child.

The March for Life, like similar protests on Parliament Hill, demonstrates that there are Canadians who desire Parliament take political action on an unsettled question, one that is literally a matter of life and death.

The only right at issue in raising and lowering the flag at city hall is the constitutional right to freedom of expression, free speech on whether Parliament will exercise its recognized constitutional authority in the life of yet-to-be-born citizens by providing protection of the law or continue to withhold that protection.

Raise the flag. Let’s have the conversation.

Canada’s Cannabis Act and the corruption of our children

Protecting our children from harm is a reasonable expectation for parents and grandparents to have of our government. Canada’s Cannabis Act doesn’t do that.

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It was a privilege to be part of the team that fought to raise the age of consent for sexual activity with an adult from fourteen to sixteen years of age, becoming Canadian law in 2008. At that time, there was a challenge to lower the age of consent for anal intercourse from eighteen to sixteen. Our answer was raise them both to eighteen then, because the issue was and remains protecting children. It was disturbing to hear last November that the federal government is now planning to lower that age from eighteen to sixteen. The risks to our children are innumerable. Several of the medical dangers are unsuitable for print.

A celebratory fist pump met the occasion of the last Parliament setting an increased mandatory minimum sentence of five years for trafficking children in Canada, and similarly for extending our Criminal Code to Canadians caught engaging in sexual activities with minors in other countries.

So when the government called a press conference to announce measures it says are designed to protect our children, scheduling it for the Thursday before the Easter weekend and a two week break in Parliament, my interest was peaked. When the Health Minister, Minister of Justice, Minister of Public Safety and the former police chief from Canada’s largest city (now Parliamentary Secretary to the Minister of Justice) took the platform to announce legislation that will make Canada the first G7 nation in which cannabis (marijuana) sale and use will be legalized I took notice. I also wondered, why announce the fulfillment of this campaign promise on the day the lull begins?

So I read the legislation.

“Youth are at the centre of the government’s actions to regulate and restrict access to cannabis,” Health Minister Philpott said.

That makes sense, more so when you read that the minimum age for legal purchase will be eighteen, the legal age of adulthood. Although, it is the near unanimous opinion of Canadian medical organizations (The Canadian Medical Association, the Canadian Psychiatric Association, the Canadian Paediatric Society and others) that anything under twenty-five is too young and will lead to irreparable physical and psychological damage that will quickly cost our health care system tens, then hundreds of millions of dollars a year nationwide. The responsibility for footing health care costs rests with the provinces. So too will the requirement to regulate sales of cannabis and the option to set a higher age for legal purchase.

Private growth of up to four one-metre high plants per household will also be legal. (Anyone else remember when the joke about politicians was the promise of a car in every garage?)

However, very disturbing in the legislation that forbids the sale of cannabis to those under eighteen, forbids packaging that would appeal to them and the growth of cannabis plants by minors are two provisions found in Part I. Section 8(1)(c) authorizes the possession of up to five grams of cannabis by “a young person,” as defined in section 2 and the Youth Criminal Justice Act as being between the ages of twelve and eighteen years, without penalty. A quick online search suggests five grams is eight to twelve cone shaped joints the length of an unfiltered cigarette, with the open end about the same thickness as a cigarette. Section 9(1)(b) authorizes a young person to distribute up to five grams of cannabis without penalty of law. Combined, this means Canada’s government intends cannabis to be legal in public and in schools for children, who may share their stash with other children.

The government proclaims loudly that the law is designed to protect our children. Yet it explicitly authorizes twelve year olds to carry and distribute cannabis to others without penalty. Not permitted to purchase from provincially authorized distributors, legally obtain their weed from adults or grow their own, where will children acquire their penalty-free supplies of cannabis? Putting an end to the illegal growth, sale and distribution of cannabis seems somewhat questionable in light of Bill C-45’s provisions for open possession and distribution by minors. So too, does the three-Ministers-and-a-former-police-chief proclamation about the safeguarding of our children.

The suggestion that this legislation is designed to protect our children is, quite simply, blowing smoke. The choice of public authority figures selected to make the announcement – calculatedly keeping Prime Minister Trudeau, who has admitted his illegal use of marijuana while a Member of Parliament, away from the table and the media – is in the same category. The date for the announcement was intended to facilitate public attention moving on to something else even before the haze clears.

In the best interests of our children, we must not be distracted by the smoke and mirrors employed by the government on this bill, which introduces new measures for the corruption of our children, not their protection.

Canadian Values. What are they?

Canadian values. That two-word phrase is so well undefined it can fuel a debate between just about any pair of Canadians. Sometimes only one is required.

Our Prime Minister recently apologized for laying claim to an understanding of Canadian values that resulted in providing a response in French to a question asked in English at a town hall meeting in Quebec. His understanding has since shifted with the realization that asked in English would better have been answered in English, just as in Alberta asked in French would be better answered in French.

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The phrase isn’t just employed by politicians.

Of late, Canadian values has been too frequently used as a phrase to hurl at adversaries as an allegation of bigotry and abject failure of character, or as words to hail claim to (y)our side’s genuine Canadian-ness. But what exactly are these values we Canadians hurl or hail?

Publicly touted as at or near the top of any list of Canadian values are tolerance and diversity.

Tolerance was once societally defined and understood. Rather than to assail contrary speech or beliefs, tolerance equipped Canadians to respectfully and peacefully disagree. Tolerance started with acceptance of one another as people. There was acknowledgment that civil dialogue, even debate, might not bring agreement. And that’s why tolerance was required.

In those (good old?) days, my parents’ Bajan accents were heard in conversation with the diverse collection of other Canadians’ accents on the street or over the backyard fence, not always in pleasant conversation but civil enough. I don’t recall hearing anyone being told to go back where they came from. Their kids, me among them, were even allowed to play together.

In twenty-first century Canada, tolerance is too often self-defined by the person/group claiming to be tolerant. The tolerance claim is almost as often made in conjunction with the assertion that those who disagree are intolerant. And frequently accompanied by an ad hominem attack stating opponents are evil, phobic or both.

Diversity is today also most often declared to be as defined by the person or group claiming it. The opinions or beliefs of others are rejected solely because they diverge from those of the diversity claiming claimant. Emphasis is, again, placed on the evil or phobic nature of any person or identifiable group of people whose opinion differs.

Human rights legislation developed to protect individuals and minority groups as a shield from abuse is today being asserted instead as sword. Select individuals and groups advance rights-oriented arguments decrying those who do not conform as being unworthy to belong in a democratic society or in need of re-education. Of course the danger in striking with a sword is that swordsmanship prescribes a strike be met with a block and counter-strike. The public square thus becomes a battlefield rather than its intended place for dialogue and the free exchange of ideas.

In the name of free speech, tolerance and diversity, increasing numbers of individuals and groups now threaten or engage in actual violence – against police officers, elected officials and other alleged adversaries – ostensibly in order to prevent peaceful presentation of differing ideas in the public square.

The concepts of tolerance and diversity that were once used to build societal bridges have been re-engineered by the new brand of activists to erect walls of societal division.

The Supreme Court of Canada has considered these assertions in the light of our constitution, declaring that in a free and democratic society… we all belong. The Court has dared suggest that tolerance is not about exclusion or forced inclusion but acceptance of difference. And diversity does not require compliance or conformity with another’s beliefs or demands. However, the Court’s words are at variance with the positions of many new philosopher-activists, who have chosen neither to welcome the Court’s words nor heed them.

More is required of us as Canadians if we are going to engage in meaningful conversation, conversation not just about what we have in common but accommodation of our differences. Isn’t that the kind of conversation vital to living life together in the shared space that is Canada?

Genuine tolerance leaves little room for allegations it is intolerant of others to peaceably disagree. Authentic diversity has little space for the assertion that those who are not like us don’t belong. There is not a sincere understanding of either that can legitimately suggest violence as the way to secure one, the other or both.

First century author Paul of Tarsus offers these still relevant words of advice, “For you were called to freedom, brothers. Only do not use your freedom as an opportunity for the flesh, but through love serve one another. For the whole law is fulfilled in one word: ‘You shall love your neighbor as yourself.’ But if you bite and devour one another, watch out that you are not consumed by one another.” (Galatians 5:13-15)

Re: Wynne to prorogue Ontario legislature, deliver throne speech on Monday

Every now and again, I find myself frustrated that politicians either don’t know or will not responsibly exercise the powers granted them under our constitution. If they don’t understand their constitutional responsibility and authority, they should not be in government. If they do, and won’t exercise it in a reasonable fashion, the same applies. In the interest of fairness, I live in part of the City of Ottawa that has it’s hydro needs met by Ontario Hydro/Hydro One. We pay substantially higher rates than those residents who are serviced by Hydro Ottawa.

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The problem arises with the 1998 decision of the Mike Harris Progressive Conservative government to amalgamate 12 different municipalities into the new City of Ottawa (one of them being the old City of Ottawa) effective January 1, 2001. The same stroke of legislative intent that established the new city, could have dealt with the hydro issue. The fact that successive provincial governments have failed to advance a Queen’s Park solution is almost as ridiculous as the out of control spending that has resulted in the bizarre out-of-control situation where the solution to an over-bureaucratized energy system has been a new level of bureaucracy to assess and process rebates for customers who cannot afford to pay their hydro bills. All this while Ontario produced hydroelectricity is sold for less outside the province than within.

This week, the Ottawa Citizen ran a story headlined, “Wynne to prorogue Ontario legislature, deliver throne speech Monday.” The Premier is pressing the restart button and giving the legislature a long weekend break before introducing a new direction for the next half of her mandate, partly based on recognition of the hydro crisis that has magnified during her government’s tenure (aging infrastructure, cancelled new gas plants with substantial penalty costs, huge salaries then huge payouts to terminated CEOs, etc.). Yesterday, I sent off a timely letter to the editor but it might not make the Ottawa Citizen’s print run, so here it is. If you agree with it, feel free to circulate this blog widely; and, particularly to Ottawa’s municipal politicians and elected members of the provincial parliament at Queen’s Park.

On Wednesday, Ontario Premier Kathleen Wynne declared rising hydro bills to be an “urgent issue” for her government. The Premier says she heard the message from the electorate in Scarborough-Rouge River, where a ‘safe’ Liberal seat – one they had never lost from the time of its creation – went to her political opponents a week earlier.

More than half a million customer accounts – 567,000 – were in arrears province-wide at the end of 2015, according to the Ontario Energy Board. It’s difficult to imagine how bad it was going to have to get before the government of nearly 14 years took notice if Patrick Brown’s Progressive Conservative Party had not won the Scarborough by-election.

While the government wrings its hands at electricity rates established by the Ontario Energy Board, it’s worth noting that the OEB was established by the provincial government in 1998. The cries of OEB independence ring somewhat hollow when one considers that the successive Liberal governments of Dalton McGuinty and Kathleen Wynne have amended the legislation that created the OEB more than 40 times since 2003, nine times since Ms. Wynne became Premier in February 2013.

Even if the OEB Act had not been amended, the OEB was established under the legislative authority of the Province of Ontario under the Constitution Act, 1867; reports to Ontario’s Minister of Energy; and, remains subject to the legislative authority of Queen’s Park. Yes, the government can do something about hydro rates, besides announcing increases.

For those of us who have endured the drama of City of Ottawa announcements that it is simply too costly and impractical to move those higher rate paying Ottawa residents who are serviced by Ontario Hydro into the fold of Hydro Ottawa, please note the following. Amalgamation under the City of Ottawa Act took place in 2001 as the result of what was then considered a costly and impractical decision of the Government of Ontario. But, the decision was within the jurisdiction of Queen’s Park under the Constitution Act, 1867. The Ontario Energy Board was established under the same authority, as were Ontario Hydro and Hydro Ottawa. In fact, to equalize the hydro situation for all Ottawa residents would require a few lines in legislation passed at Queen’s Park.

It’s been a while coming, but now electricity rates are an urgent issue for the Wynne Government. On Thursday, the Premier prorogued the legislature so that she can introduce a new direction for her government on Monday.

Here’s a simple suggestion for Monday’s throne speech. There is no need to engage in endless negotiation to deal with high hydro rates for Hydro One customers in Ottawa or elsewhere in the province. There is no need to establish a new bureaucracy to assess income based subsidies. There is no need for anything except a simple act of the provincial legislature to reign in the hydro fiasco. If Ms. Wynne isn’t listening, then perhaps we should start speaking with Mr. Brown.

Who is responsible for this MAD (medical assistance in dying) mess?

Canada is on the verge of having no criminal restraint on the assistance in or administration of death by a physician, nurse or other medical professional.

Parliament Hill before breakfast

I can think of little worse than failure by Parliament to pass a law on the matter of medical assistance in dying (MAD) by the June 6, 2016 deadline established by the Supreme Court of Canada. Failure will force upon Canadians a province by province and courtroom by courtroom attempt to interpret the Supreme Court’s intent in the awkwardly reasoned Carter case.

In February 2015, the Court undid the legal prohibition on assisted suicide with a confusing, but unanimous, decision in Carter v. Canada. The decision in Carter contradicted the Court’s comprehensively reasoned decision on the same point of law in the 1993 split decision in Rodriguez v. British Columbia, which held fast to the Court’s recognition of “sanctity of life” as an underlying value of the Canadian Charter of Rights and Freedoms.

The Carter decision gave Parliament 12 months to come up with a new law.

The justices had to know their timeline was unrealistic. Parliament was headed for summer break in June and an election in October. It was no surprise that an application for extension was made by the new government. But the extension granted was a mere 4 months, not the 6 months requested. In granting the extension, the Court also decided to offer up a host of exceptions to the existing prohibition – province by province legislative regulation and courtroom by courtroom evaluation of requests for MAD.

One year after Carter, a joint parliamentary committee of MPs and Senators issued a report that suggested legalizing the medically assisted or administered death of just about anyone for physical, psychological, social (quality of life) or other “compassionate” reasons.

Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), was introduced in Parliament on April 14. Unparliamentary behaviour by our Prime Minister – for which he has apologized – has delayed passage by the House of Commons.

The Senate Committee on Legal and Constitutional Affairs reports that the Senate is unlikely to pass C-14, as is or with amendments, prior to the Court’s June 6 deadline. The Senate position is driven primarily by a desire to broaden the availability of MAD. They have already held full hearings on the bill.

Bill C-14 may be the most legally conservative interpretation of the Carter decision that this government, or any Canadian government, will attempt to legislate. Those who oppose it make room for fewer constraints on who will face medically assisted or administered death. In other jurisdictions this has proven to move from patient request to physician determined execution for those assessed as having a lesser standard of life, whether children or the elderly.

Who is responsible for the impending MAD situation?

If the Court had given the 6 month extension requested, would legislation be in place by August 6?

The politically aware Court would best have initially provided an 18 month period for new legislation. Having granted only 12, it should have allowed the government’s request for 6 more. The Senate often sits until mid-July, following adjournment of the House in late June.

If the Prime Minister had not behaved poorly in the House, might the bill be progressing in a timely fashion in the Senate?

Although passage of C-14 has been delayed in the House that should have little impact on Senate deliberations. Senators participated on the joint parliamentary committee and the Senate’s own committee review has been completed.

Should the Senate impede progress of a bill approved by the House of Commons?

Senators need to consider their role in providing “sober second thought” on a matter of national importance; and, urgency.

First, the Senate assesses whether legislation is properly within the federal constitutional jurisdiction of Parliament. This does not include weighing whether the draft legislation is a precise depiction of a Supreme Court decision.

Second, senators balance the constitutional role of the Senate with that of the House of Commons. Both houses are a form of proportional representation – elected nationwide by riding in the House of Commons and appointed to represent on a provincial basis in the Senate. While the Senate does study matters and propose legislation, it rarely offers more than minor amendments to legislation passed by the House.

Third, the Senate, since 1960, evaluates whether the legislation aligns with the Canadian Bill of Rights, and, since 1982, the Charter.

Senators’ concerns with proposed legislation may be addressed through committee hearings (which have already been held for C-14) or reference to the House (which has been done through the reports of the joint parliamentary committee and the Senate committee).

Senate defeat of a House approved bill is rare. Senate delay is not.

The government has stated it intends more extensive review of the dilemma of MAD during this session of Parliament; after passage of C-14 takes place, driving to accomplish the initial legislative task within the timeline allotted by the Court.

Will the Senate fiddle while time burns? Will the government seek further extension from the Court? Would the Court grant it?

It is heartrending to watch a nation transition from cherishing human life, at one time treasured from conception until natural death – the life cycle, to assessing whose life is worth living; and, the corollary, whose is not.

The predicament in which our nation finds itself is not the concoction of its citizens. It is the responsibility of judicial and legislative decision makers.