“Life is Wasted Without Jesus”

If you’re a Christian, you probably think that statement is just common sense.  If you aren’t a Christian, you probably rolled your eyes and moved on.  And if you’re an administrator at Forest Heights Community School in Chester Basin, you think it’s hateful speech meriting suspension from school:

William Swinimer was suspended from the Forest Heights Community School in Chester Basin for five days on Monday, after he defied the principal’s instruction not to wear a yellow T-shirt sporting the phrase “Life is wasted without Jesus” anymore.

He’d worn the shirt to school several times before he was told two weeks ago that another student had complained. That was when he was told to leave it out of his school week wardrobe.

Swinimer says he never intended to be rude or disrespectful, but he’ll keep wearing the shirt because he stands behind its message.

“That’s my opinion, but under the Canadian Charter of Rights and Freedoms I’m allowed to have my opinion and express my opinion,” the Grade 12 student told CTV’s Canada AM on Friday.

“The only reason I’m wearing the T-shirt continually now is because I’m standing up for my rights as a Canadian citizen.”

But according to South Shore Regional School Board Supt. Nancy Pynch-Worthylake, the problem is not that the shirt sports a religious message, but that this particular message appears aimed at denigrating those who don’t agree.

“We do ask that our students are expressing their views in a way that could not be interpreted by other students as a criticism of their beliefs,” Pynch-Worthylake told CTV Atlantic on Thursday.

A good test case: let’s get a female student at Forest Heights to wear a shirt reading “Keep Your Rosaries Off My Ovaries” and see what happens.

More here and here.  If a teacher was using his position in a public school to promote his religion, I’d understand the controversy.  (There’s also some suggestion that Swinimer has been aggressive in confronting other students about his Christian beliefs, which wouldn’t necessarily merit a suspension, but could at least be said to be imposing on other students’ rights.)  But “keeping religion out of the schools” doesn’t mean students shouldn’t be allowed to express their religious beliefs.  Unless you’re in France, at least.

At least one student has gotten the message: if you see something that offends you, whine about it until it’s removed from your sight.

Grade 11 student Niall Barkes told CTV Atlantic that interpretion is within reason.

“I’m an atheist myself and I’m kind of offended because he’s basically stating that my life is wasted without Jesus, it’s just not a fair statement at all and I think the reason for him getting suspended is reasonable,” Barkes said.

I believed a lot of obnoxious, self-righteous things when I was your age, too, Mr. Barkes.

Andrew Coyne, not surprisingly, has the best take I’ve read on the anniversary of our Charter of Rights and Freedoms, and what the rule of law truly means:

That we have become a noticeably freer and fairer country in the 30 years since the Charter became law I do not dispute. But the changes it has wrought have as much to do with the system of law of which it is a part as with any particular provision of the Charter.

Indeed, the most common complaints about the Charter, that it has confined Parliament’s powers to make laws for the general good, while handing unelected judges the power to make law, are not only exaggerations: they could as well be said about the rule of law itself.

All laws, not just the Charter, bind the legislatures that pass them, at least until they are changed. All laws, not just the Charter, limit the discretion of governments. That is precisely their point. The purpose of law is not to restrain the citizens: governments can do that very well in its absence, as in any dictatorship. It is, rather, a restraint on government. We do not trust our leaders enough to permit them to rule by fiat. We make them put it in writing. We grant them this much power, and no more.

We insist their powers be defined in this way, not only to contain them within limits, but that we might better understand what they are — that they might be more predictable, more certain, more clear. We desire, at a minimum, that laws should mean the same thing from one day to the next, and be consistent with each other.

But for that we need an independent adjudicator. If the people who made the laws also had the power to interpret them — as kings have claimed, in ages past — the law would cease to perform its intended restraining role. Legislation would mean whatever was convenient in any given case. Only by dividing power between the legislative and judicial branches — one proposing, the other disposing — can we be protected, however imperfectly, from “arbitrary measures.”

All laws, then, not just the Charter, involve the judiciary in “making law.” The minute you given anyone the power to interpret the law, that inevitably impinges upon the legislative power to some degree, no matter how scrupulous they may be about original intent. That is an implication of the rule of law, not the Charter. (And not only written law: The common law that conservatives get all misty about is judge-made law in its purest form, consisting as it does entirely of jurisprudence).

Most criticism of the Charter has come from the right.  But certainly not all of it:

The Charter of Rights and Freedoms, the 30th anniversary of which falls today, is changing Canada for the worse — its emphasis on individual rights may trump the broader public good and even open the door to Americanization of medicare, says one of its architects, Roy Romanow, the former NDP premier of Saskatchewan.

A new generation of “Charter kids” and “Charter judges” is advancing individual rights and diluting the “communitarian impulses” of Canadians, he said in a telephone interview from Saskatoon, where he teaches at the University of Saskatchewan.

University of Houston law professor David R. Dow, in The Daily Beast, says Supreme Court Justices who don’t agree with David R. Dow (or President Obama) should be impeached.  Think I’m oversimplifying his argument?  Just read the article. (via InstaPundit)

Somewhere, in an alternate universe, President Gingrich is loving this.

Is there really a bullying epidemic?

Reason‘s Nick Gillespie, writing in The Wall Street Journal, is skeptical:

But is America really in the midst of a “bullying crisis,” as so many now claim? I don’t see it. I also suspect that our fears about the ubiquity of bullying are just the latest in a long line of well-intentioned yet hyperbolic alarms about how awful it is to be a kid today.

I have no interest in defending the bullies who dominate sandboxes, extort lunch money and use Twitter to taunt their classmates. But there is no growing crisis. Childhood and adolescence in America have never been less brutal. Even as the country’s overprotective parents whip themselves up into a moral panic about kid-on-kid cruelty, the numbers don’t point to any explosion of abuse. As for the rising wave of laws and regulations designed to combat meanness among students, they are likely to lump together minor slights with major offenses. The antibullying movement is already conflating serious cases of gay-bashing and vicious harassment with things like…a kid named Cheese having a tough time in grade school.

How did we get here? We live in an age of helicopter parents so pushy and overbearing that Colorado Springs banned its annual Easter-egg hunt on account of adults jumping the starter’s gun and scooping up treat-filled plastic eggs on behalf of their winsome kids. The Department of Education in New York City—once known as the town too tough for Al Capone—is seeking to ban such words as “dinosaurs,” “Halloween” and “dancing” from citywide tests on the grounds that they could “evoke unpleasant emotions in the students,” it was reported this week. (Leave aside for the moment that perhaps the whole point of tests is to “evoke unpleasant emotions.”)

[…]

But is bullying—which the stopbullying.gov website of the Department of Health and Human Services defines as “teasing,” “name-calling,” “taunting,” “leaving someone out on purpose,” “telling other children not to be friends with someone,” “spreading rumors about someone,” “hitting/kicking/pinching,” “spitting” and “making mean or rude hand gestures”—really a growing problem in America?

Despite the rare and tragic cases that rightly command our attention and outrage, the data show that things are, in fact, getting better for kids. When it comes to school violence, the numbers are particularly encouraging. According to the National Center for Education Statistics, between 1995 and 2009, the percentage of students who reported “being afraid of attack or harm at school” declined to 4% from 12%. Over the same period, the victimization rate per 1,000 students declined fivefold.

When it comes to bullying numbers, long-term trends are less clear. The makers of “Bully” say that “over 13 million American kids will be bullied this year,” and estimates of the percentage of students who are bullied in a given year range from 20% to 70%. NCES changed the way it tabulated bullying incidents in 2005 and cautions against using earlier data. Its biennial reports find that 28% of students ages 12-18 reported being bullied in 2005; that percentage rose to 32% in 2007, before dropping back to 28% in 2009 (the most recent year for which data are available). Such numbers strongly suggest that there is no epidemic afoot (though one wonders if the new anti-bullying laws and media campaigns might lead to more reports going forward).

After my horrible experiences in high school, I should be right on board with the anti-bullying movement, but I find something deeply off-putting about it.  Maybe it’s the sight of so many of the people who made my junior-high life a living hell preaching about it on Facebook.

Or, it could be the fact that legislators across North America are further trying to limit our personal freedoms.  For the children, you know:

In their never-ending quest to make Connecticut a less annoying place, state legislators — apparently having solved unemployment, crime and school funding — have trained their sights on annoying speech.

bill introduced March 22 by the Senate Judiciary Committee — which is up for a hearing in that committee Thursday — would create the new misdemeanor criminal offense of “Electronic Harassment.” (Note to Dave Barry: “Electronic Harassment” would be an exceptional name for a band.)

A person would be guilty of the crime of “Electronic Harassment” under the following conditions: (1) Transmitting information over any electronic medium (anything from radio to the Web to texting), (2) that is based on a person’s “actual or perceived traits or characteristics,” (3) that causes a person “substantial embarrassment or humiliation within an academic or professional community,” and (4) is done with an intent to “annoy” or “alarm” the person.

Read that carefully, and think about how much First Amendment real estate it covers.

For example … how about this Al Franken column, [actually a Joe Conason column, about Franken’s controversial election to the Senate – DJP] “Rush Limbaugh is still a big fat idiot.” Transmitted electronically? Check. Based on traits or characteristics? Argue amongst yourselves whether they are “actual” or “perceived.” Causing substantial humiliation? If it is possible for Rush Limbaugh to feel humiliation, definitely. Done with an intent to annoy? Oh, at the very least.

Stay clear of Connecticut, Senator Franken — or bring your checkbook, since SB 456 carries up to a $2,000 fine, with the possibility of a year in jail.

For being annoying.

Via the great Ken at Popehat, whose posts about “cyberbullying” legislation are not to be missed.

Eric, Lola, and division of property

This week, the Supreme Court of Canada will revisit the issue of whether common-law spouses are presumptively entitled to an equal division of family property:

They’re known as “de facto spouses.” Partners in a paperless marriage. Or, in this case, plain old Eric and Lola.

But there’s almost nothing ordinary about the tale of a 51-year-old Quebec billionaire businessman and a former Brazilian model, whose messy legal battle could change life for millions of Canadian couples.

Their case, which reaches the Supreme Court of Canada [this] Thursday, is expected to decide whether common-law spouses have the same rights as married couples to support and sharing of property after a break-up.

While the case is likely to have its greatest impact in Quebec, legal experts predict that if Lola succeeds in her landmark challenge, eight other provinces and territories that deny property rights to unmarried spouses, including Ontario [and Nova Scotia – DJP], will be forced to rethink their legislation.

As a starting point, common-law spouses should have the right to both alimony and an equal share in property, argue lawyers for the Women’s Legal Education and Action Fund (LEAF), an intervenor in the case.

[…]

Looming over the case is a 2002 decision by the Supreme Court involving Susan Walsh, a Nova Scotia woman who sought a share of her late common-law husband’s assets. In that case, the court’s 8-1 majority upheld a section of Nova Scotia’s Matrimonial Property Act, which gives only married people a share in a partner’s property.

The court said excluding common-law couples was a way of respecting their decision to avoid marriage because of the legal obligations that go along with it.

LEAF argues it is time to revisit the Walsh decision, saying the court in 2002 did not have the benefit of social science research that shows when people move in together, they aren’t motivated by legal considerations.

In fact, North American research over the past decade has shown that most couples who live together are under the mistaken impression they already have the same rights as married couples.

Via @John_Magyar.

Gingrich vs. the Judiciary

With his poll numbers finally starting to tumble, GOP Presidential candidate Newt Gingrich is going full-on demagogue:

Newt Gingrich says as president he would ignore Supreme Court decisions that conflicted with his powers as commander in chief, and he would press for impeaching judges or even abolishing certain courts if he disagreed with their rulings.

“I’m fed up with elitist judges” who seek to impose their “radically un-American” views, Gingrich said Saturday in a conference call with reporters.

In recent weeks, the Republican presidential contender has been telling conservative audiences he is determined to expose the myth of “judicial supremacy” and restrain judges to a more limited role in American government. “The courts have become grotesquely dictatorial and far too powerful,” he said in Thursday’s Iowa debate.

As a historian, Gingrich said he knows President Thomas Jefferson abolished some judgeships, and President Abraham Lincoln made clear he did not accept the Dred Scott decision denying that former slaves could be citizens.

[…]

But the former House speaker demurred when asked whether President Obama could ignore a high court ruling next year if it declared unconstitutional the new healthcare law and its mandate that all Americans have health insurance by 2014. Gingrich said presidents can ignore court rulings only in “extraordinary” situations.

An “extraordinary” situation, I presume, would be one in which the courts don’t rule the way Mr. Gingrich wants them to.

Lawyer and libertarian blogger Doug Mataconis lets him have it:

Gingrich’s suggestion yesterday that he would feel free to ignore Supreme Court decisions that he disagrees with is particularly dangerous. When I wrote about this on Friday, I noted the examples from history that Gingrich typically cites when he talks about this issue. Each one of them, from Jackson ignoring the Court’s rulings on Indian removal, to Lincoln ignoring the court rulings on his blatantly unconstitutional suspension of the Writ Of Habeus Corpus, to FDR’s effort to strong-arm the Supreme Court with his court packing plan, involved instances where the Executive Branch was seeking to expand its own power by ignoring the rulings of a co-equal branch of the Federal Government. If Newt Gingrich thinks its okay for him to ignore a Supreme Court decision on same-sex marriage, then that also means that it would be okay for Barack Obama  to ignore the Supreme Court if it declares the PPACA unconstitutional next June. If Arizona can ignore the Supreme Court saying that its immigration law its unconstitutional, then California can ignore the Supreme Court saying that its decision not to enforce immigration laws.

Moreover, as a supposed historian, one would think that Gingrich would recognize the historical roots of his argument. It’s not unlike the doctrine of nullification that was widely popular in the Southern United States before the Civil War, and reasserted itself some 100 years later. After the Supreme Court issued its ruling in Brown v. Board of Education, most of the states in the Southern United States undertook efforts to evade having to comply with the ruling or ignore it all together. Prince Edward County, Virginia, for example, took the extreme step of closing all of its public schools rather than comply with court-ordered desegregation. In doing so, the country provided “tuition grants” to all students regardless of race, but none of the private schools in the county would admit African-American students. In 1964, the Supreme Courtdeclared this policy unconstitutional. Other southern states asserted the discredited theory of interposition to argue that they had the authority to ignore the Court’s ruling in Brownan argument which the Supreme Court rejected unanimously. In essence then, Newt Gingrich takes the same position on SCOTUS rulings he dislikes that southern segregationists did after Brown. They are as discredited now as they were then.

What’s most striking about Gingrich’s position on this issue, though, is the violence it does to the principle of Separation of Powers. Under our Constitution, the Executive. Legislative, and Judicial Branches are deemed co-equal within their own spheres of power. Gingrich, however, proposes ideas that would completely upend this system by drastically reducing judicial independence. Requiring Federal Judges to appear before Congress every time they issue a decision that some Committee Chairman decides they don’t would be an utter disaster. For one thing, it’s entirely likely that this Congressional power would quickly become subject to abuse as Congressmen and Senators use such hearings not only for political grandstanding but also to put pressure on judges to rule in a certain way in pending cases. Judges would quickly be faced with the dilemma of following the law as best they could and worrying about whether the ruling they issue means they end up on C-Span in three months time getting grilled by a Senator with dreams of running for President one day. It would be the death of judicial independence, and would be harm the rights of those seeking their day in Court who would find that there is an 800lb gorilla called the United States Congress looking over the Judge’s shoulder.

Another thought occurs, of course. If Gingrich believes that it would be proper for Congress to summon a Supreme Court Justice before it to explain themselves, then why wouldn’t it also be proper to summon the President himself before Congress to be questioned and forced to explain the basis for his decisions? What Gingrich is really talking about here is an idea that would set off a Constitutional crisis between the three branches of government.

You’d think a “small government” politician would support a strong and independent judiciary, wouldn’t you?

Update: when you’ve gone too far for Ann Coulter…

Update II: Harry’s Place compares Gingrich’s attitude toward the judiciary with that of Hugo Chavez.  That’s gotta hurt.

Don’t drink and drive – especially in PEI

In Canada, 9% of convictions for impaired driving result in jail time.  In Prince Edward Island, the figure is 94%:

A year after Prince Edward Island’s three provincial criminal court judges decided in a meeting that they would crack down on impaired drivers, new statistics show virtually everyone found guilty of the offence has been sentenced to prison, spurring some to raise questions about the role of the judiciary in determining sentences.

Nationwide, only 9% of impaired driving convictions led to jail time in 2009 and 2010, Statistics Canada found in its report on cases in adult court. On the tiny Maritime island, which has historically struggled with the issue of drunk people getting behind the wheel, 94% of those convicted were sent to jail.

After seeing the problem flare up again in 2007, judges Jeff Lantz, Nancy Orr and John Douglas gathered for a meeting at the Charlottetown courthouse in December of that year with a special mandate in mind: Agree to toughen up sentences for those found guilty of drunk driving. They settled on a minimum three days in jail for first offenders and a minimum fine of $1,200, along with the standard license suspension.

“They were rising in Judge Orr’s and my district,” Judge Lantz said in an interview. “We were both concerned and thought we should try to do something.”

Judges have discretion under the criminal code to decide on an appropriate sentence, although not for convictions.

The code also requires judges strive for consistency in sentencing — something greater communication amongst judges can help achieve.

That said, it is relatively unheard of for a group to come together and strategize on a sentencing standard to be applied, said Troy Riddell, an associate professor in political science at the University of Guelph who specializes in judicial and constitutional politics.

Drinking and driving is indefensible, but I agree with defence lawyer Mitchell Worsoff, who questions the appropriateness of judges meeting in private and deciding to impose much tougher sentences than required by law:

“What those judges are doing are working outside the purview of what the legislators had in mind and they are themselves, perhaps, taking the law into their own hands,” he said. “The legislators never said there’s going to be a minimum jail sentence for drinking and driving. If the judges had jumped to that step, they’re going outside the scope of what the legislators have envisioned.”

If I were representing someone charged with impaired driving in P.E.I., I’d be working on the notice of appeal right now.

(And in case you were wondering: yes, Prince Edward Island has only three Provincial Court judges.)

Polygamy ruling expected today

The Supreme Court of British Columbia is set to rule on the constitutionality of Canada’s anti-polygamy law:

On Wednesday, B.C. Supreme Court Chief Justice Robert Bauman will rule on whether Canada’s law against polygamy is constitutional. B.C. put that question to a court reference in 2009 after the failed prosecution of two community leaders from the polygamous community of Bountiful, B.C.

[…]

The reference case posed two questions: Is section 293 of the Criminal Code – the ban against polygamy – consistent with the Canadian Charter of Rights and Freedoms? If not, why not? The second question asked what are the necessary elements of the offence under the provision – that is, does it require that a polygamous union involve a minor or occur in a “context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?”

The governments of B.C. and Canada argued that the polygamy law should be upheld, as the practice is associated with a litany of harms, including exploitation and abuse of women and girls.

Mr. Macintosh argued that the criminalization of polygamy has a range of “profoundly negative consequences,” including heightening the insularity of polygamous communities and potentially making members of such communities more vulnerable to abuse.

Whatever Judge Bauman’s ruling, the case is widely expected to be appealed to the Supreme Court of Canada.

If this case was about legal recognition of polygamy – with massive implications for family law and even immigration policy – it would be much more challenging.

At issue, however, is whether a polygamy should be a criminal offence.  Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.

Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults.  I would be very surprised if the B.C. Supreme Court – and, ultimately, the Supreme Court of Canada – does not find that the section is overly broad and therefore unconstitutional.

Update: the law has been upheld:

B.C. Supreme Court has upheld Canada’s polygamy laws, but said minors who end up in polygamous marriages should be exempt from prosecution.

In a 335-page decision released on Wednesday, Chief Justice Robert Bauman ruled in favour of the section of the Criminal Code outlawing polygamous unions.

In his ruling Bauman said while the law does infringe on religious freedom, it is justified given the harm polygamy causes to children, women and society.

“I have concluded that this case is essentially about harm,” Bauman wrote in the decision that was handed down Wednesday morning in Vancouver.

“More specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.”

But he suggested the law shouldn’t be used to criminalize minors who find themselves married into polygamous unions.