The partisan judiciary

As usual, if you want to know what a political party is really up to, look at what they accuse their opponents of doing:

The Liberal government relies on a large network of party officials and supporters to decide which lawyers receive sought-after judicial appointments, e-mails obtained by The Globe and Mail show.

Liberal MPs, ministerial staff members and even party volunteers have been involved in candidate vetting since the federal government revamped the process in 2016, after having accused the previous Conservative government of politicizing appointments.

In the United States, where the process of appointing judges is blatantly based on partisan loyalties, you pretty much have to belong to the President’s political party if you ever want to make it to the Bench. Here in Canada, um…

The dozens of e-mails between ministerial staffers from 2017 and 2018 detail widespread partisan involvement in the selection of new judges, offering unprecedented insight into the inner workings of the current judicial appointment process. The e-mails also show clear tensions during that time frame between the minister of justice’s office, which handles the appointment process, and the Prime Minister’s Office, which collaborates on those decisions.

The PMO ensures Liberal MPs are consulted on all nominations in their ridings, the e-mails show, using the judicial candidates’ postal codes to determine where they live. In 2018, a member of the PMO’s appointment branch asked then-justice minister Jody Wilson-Raybould’s office for the results of MP consultations for more than a dozen candidates, despite the concerns of her judicial affairs adviser, François Giroux.

[…]

The Globe reported last year that the PMO also vets potential candidates with a private Liberal Party database called Liberalist to see whether they had given money to the party in recent years, participated in party activities and even put up Liberal election signs.

Honestly, none of this comes as a surprise, and I’ll go even further and say involvement with the governing political party shouldn’t disqualify you from being appointed as a judge. We lawyers are definitely over-represented in government and politics – heck, the reason I went to law school was because I didn’t know what else I could do with my political science degree – and being a party hack doesn’t mean you aren’t qualified.

My only wish is that we stop pretending this doesn’t happen.

The Wet’suwet’en conundrum

As cross-country protests continue, CTV News has an explainer about the difference between hereditary chiefs and elected ones, and their different perspectives on the pipeline project that ignited this powder keg:

Protests across the country in support of the Wet’suwet’en hereditary chiefs have prompted questions surrounding the difference between these chiefs and elected band councils — and the answer is complicated.

Essentially, the hereditary chiefs oversee the management of traditional lands and their authority predates the imposed colonial law, which formed the elected band council.

While the band council is in support of the Coastal GasLink pipeline, the hereditary chiefs are not.

[…]

Hereditary chiefs represent different houses that make up the First Nation as a whole. Their titles are passed down through generations and predate colonization.

“The hereditary chiefs draw their authority from Wet’suwet’en law, so their law is the law that pre-exists colonization in the territory,” Kim Stanton, a lawyer at Goldblatt Partners LLP who specializes in Aboriginal law, told CTVNews.ca in a phone interview Thursday.

“The hereditary chiefs’ authority is with respect to all of their ancestral lands and those are the lands that they’re seeking to protect.”

In 1997, the Wet’suwet’en people were part of Delgamuukw v. British Columbia, which ultimately upheld Indigenous peoples’ land claims to land that had never been ceded through a treaty, which includes Wet’suwet’en Nation and much of British Columbia.

[…]

On the other hand, elected band councils — as the title suggests — are elected members of the community.

These councils were the result of the Indian Act, which was first established in 1876 and defined how the Canadian government interacts with Indigenous people. They were formed to impose a leadership structure that more resembled Canada’s system of governance.

“They don’t have the authority under the Indian Act to make decisions on traditional territory,” Pam Palmater, an Indigenous lawyer and the chair in Indigenous Governance at Ryerson University, told CTV’s Power Play on Thursday.

On its surface, this is about a pipeline project. Fundamentally, it’s about whether the traditional Wet’suwet’en lands – and other First Nations’ territories that were never formally ceded by treaty – are under Canadian authority at all. This dispute has barely even started.

The judge was angry that day, my friends, like an old man trying to send back soup in a deli

When I heard that an Alberta judge had invoked George Costanza in one of his decisions, I assumed it had something to do with his (completely accurate) assertion that it’s not a lie if you believe it. But no:

A justice has allowed an Edmonton man’s appeal based on an unusual precedent set not by law but by Seinfeld’s own George Costanza.

In “The Kiss Hello,” Episode 17 of Season 6, Costanza cancels a physiotherapy appointment within 24 hours. Later, he finds out he has been charged a $75 fee, and would face a second fee if he were to cancel the next day’s appointment.

But when he shows up at the office the next day, a receptionist informs him the physiotherapist has “personal affairs she had to attend to,” and that the office left a voicemail message.

“I’m sorry, I require 24 hours for a cancellation,” he says.

“Now, as I see it, you owe me $75. Will that be cash or cheque?”

[…]

On Thursday, a Court of Queen’s Bench of Alberta justice found parallels between Costanza’s predicament and that of a local man.

The man’s appeal and request for a new trial date came after a months-long “bungling” of dates and times by both Court and the appellant.

Mr. Chiles, you’ve done it again.

Our worst fears confirmed

The crash of Ukranian International Airlines Flight 752, which claimed the lives of 176 people – including 62 Canadians, many of them with connections to Halifax – was likely caused by an Iranian surface-to-air missile:

Prime Minister Justin Trudeau says intelligence now indicates the Ukrainian passenger aircraft that crashed outside of Tehran on Wednesday, killing everyone on board — including 138 people destined for Canada — was shot down by an Iranian missile. 

“We have intelligence from multiple sources, including our allies and our own intelligence. The evidence indicates that the plane was shot down by an Iranian surface-to-air missile,” he said during a news conference in Ottawa, adding that it might have been an unintentional act.

[…]

The crash happened just hours after Iran launched a ballistic missile attack on Iraqi bases housing U.S. soldiers, in response to U.S. President Trump’s decision to order the targeted killing of Iranian military commander Qassem Soleimani

When asked if the U.S. air strike was in part to blame for the crash, Trudeau said only that Canada needs a thorough investigation.

I’m not normally inclined to give the Iranian government any benefit of the doubt, but I really don’t think they intended to destroy this civilian plane. At a time when they’re on the verge of war with the United States, this is the last thing they needed. Plus, 82 Iranians were among the victims.

When the U.S. Navy shot down Iran Air Flight 655 in 1988, it was because they mistook the plane for a fighter jet. The downing of Malaysian Airlines Flight 17 over Ukraine was likely carried out by Russian-backed separatists who thought they were firing on military aircraft. The most likely explanation is that the same kind of terrible, negligent mistake happened here.

As for President Trump, I guess you can say he bears some responsibility for this, in the same way President Johnson bears some responsibility for Forrest Gump’s friend Jenny getting abused by her boyfriend. The word “crossfire” is being thrown around, but at the time this happened only one side was actually doing any shooting.

The orange one himself is much less bellicose than you might expect:

Trump declined to share his theories around why the plane crashed but said he thought “something very terrible happened. Very devastating.”

“Well, I have my suspicions. It was very – I don’t want to say that…because other people have those suspicions also.”

He also said someone “on other side” could have “made a mistake.”

Trump is being roasted online for his cavalier remarks about the plane ” flying in a pretty rough neighborhood.” Maybe not the most sensitive way to put it, but my goodness, could you realistically expect anything better?

Trudeau’s Arabian Nightmare

I was even more right-wing in 2001 than I am now, and even then I knew wearing blackface was horribly racist. (I still remembered the very special “Gimme a Break!” episode about it from when I was a kid.) Our woke Prime Minister, on the other hand, had no idea.

To be fair, he was just a callow youth of (checks notes) 29 years old.

Justin Trudeau, Canada’s prime minister, wore brownface makeup to a party at the private school where he was teaching in the spring of 2001. TIME has obtained a photograph of the incident.

The photograph has not been previously reported. The picture was taken at an “Arabian Nights”-themed gala. It shows Trudeau, then the 29-year-old son of the late former Prime Minister Pierre Trudeau, wearing a turban and robes with his face, neck and hands completely darkened. The photograph appears in the 2000-2001 yearbook of West Point Grey Academy, a private day school where Trudeau was a teacher.

[…]

Speaking to reporters Wednesday night, following TIME’s publication of the photo, Trudeau apologized: “I shouldn’t have done that. I should have known better and I didn’t. I’m really sorry.” When asked if he thought the photograph was racist, he said, “Yes it was. I didn’t consider it racist at the time, but now we know better.”

Trudeau said he wore “makeup” in high school to sing “Day-O,” a Jamaican folk song famously performed by African-American singer and civil rights activist Harry Belafonte. “I deeply regret that I did that,” he said.

The temptation to hold Trudeau to his own side’s extremely woke standards, and demand that his political career come to an end over this, is overwhelming. And yet, I think the better course of action for Andrew Scheer (who hasn’t weighed in yet, as of this posting) would be to take the high road.

Scheer didn’t step aside after his own 2005 comments attacking same-sex marriage came to light, and he should say Trudeau doesn’t deserve to lose his job over this. His policies and performance in office, sure, but not something stupid he did 18 years ago.

Conservatives should hold to the principle that people shouldn’t be judged, cancelled and denied a chance at redemption because of one mistake, and let the voters think about whether Liberals would do the same. Frankly, seeing Trudeau’s supporters make excuses for this is far more devastating than anything Scheer could say about it.

If everyone with skeletons in their closet was forced out of politics, we’d have no politicians left.

But there would be bad things about that, too.

Incoming!

Yes, some people have predicted twenty of the last three recessions. But CNBC has a long list of warning signs:

Perhaps the most talked about recession indicator is the inverted yield curve.

Amid falling interest rates in the broader U.S. bond market, the yield on the benchmark 10-year Treasury note has fallen below the 2-year yield several times since Aug. 14. In a healthy market, long-term bonds carry a higher interest rate than short-term bonds. When short-term bonds deliver a higher yield, it’s a called an inversion of the yield curve. The bond market phenomenon is historically a trusty signal of an eventual recession: It has preceded the seven last recessions. A recession occurs about 22 months after an inversion on average, according to Credit Suisse.

[…]

Gross domestic product in the U.S. is slowing. The economy expanded by 2% in the second quarter, the Commerce Department said in its second reading of GDP on Thursday.

Two percent is the lowest growth rate since the fourth quarter of 2018 and down from 3% growth in the first three months of this year.

[…]

U.S. manufacturer growth slowed to the lowest level in almost 10 years in August. The U.S. manufacturing PMI (purchasing managers’ index) was 49.9 in August, down from 50.4 in July.

The reading is below the neutral 50.0 threshold for the first time since September 2009, according to IHS Markit. Any reading below 50 signals a contraction.

Because Donald Trump lives rent-free in our heads now, most people are wondering about whether the recession will start in time to sink his already shaky re-election chances. But I’m wondering how it will affect politics on this side of the border.

A recession will not start in time for the next federal election, but there’s a good chance we’ll be in one not long afterward. And, fairly or not, whoever’s in charge will take the blame for it.

In other words, whoever wins the federal election in 2019 may come to regret it in 2023. Or sooner, if – as looks increasingly likely – we have a minority government.

Kicked by the Shin

Why vote for the lesser evil?

It’s been quite a week for candidates in the Burnaby South federal by-election embarrassing themselves. NDP sort-of-leader Jagmeet Singh was baffled by a question on CTV’s Question Period about the growing Canada-China feud, Liberal candidate Karen Wang quit the race after telling people to vote for her because of her race, and PPC candidate Laura-Lynn Tyler Thompson is a candidate for the PPC.

Meanwhile, the guy running for my own party wants you to know that if you defend accused criminals in court, you’re basically a criminal yourself:

NDP leader Jagmeet Singh suggested his Burnaby South opponent, lawyer Jay Shin, had forgotten a basic principle of Canadian law after the Tory said Singh was “keeping criminals out of jail” in his days as a criminal defence lawyer.

Shin issued a press release accusing Singh of being soft on crime. The release came within hours of Prime Minister Justin Trudeau announcing on Wednesday that there would be a byelection in Burnaby South and two other ridings on Feb. 25.

“While Jagmeet Singh has spent his pre-political career as a criminal defence lawyer keeping criminals out of jail, I have spent my legal career building Canadian businesses that create jobs and promote international trade,” wrote Shin, a business lawyer who has facilitated foreign investment in B.C.

[…]

Shin later told the NOW he wasn’t trying to discredit defence lawyers.

“They play an important role; everybody has a right to defence,” Shin said. “What I’m saying is he played that role: as a criminal lawyer, he defended criminals. That’s all I’m saying.”

Shin’s press release also said the NDP “go easy on criminals and have actively endorsed illegal immigration into our country.” 

Should Shin ever find himself charged with a crime, I trust that he will hold true to his principles, plead guilty and accept whatever the punishment the Crown asks for. Since the state is always right about such things.

I never thought an election in this country would see a worse selection of candidates than last year’s Ontario provincial contest. Sadly, I’m never pessimistic enough about such things.

Presumed drunk until proven sober

The USSR also didn’t care for impaired driving – or the presumption of innocence.

I despise drunk drivers – not just because of the lives they’ve destroyed, but because I’ve had to talk to so many of them at 2 in the morning when I’m on duty counsel for the night.  Take it from me: you don’t know true frustration until you find yourself trying to explain to an indignant, barely coherent drunkard his right to remain silent but also that it’s a criminal offence to refuse a police officer’s request for a breath sample.

Most people likely feel the same way, which is why no politician – even those who otherwise doubt the efficacy of “tough on crime” policies – ever lost votes by cracking down on impaired driving.   But even when everyone is agreed that the crime is inexcusable, it’s still possible for the government to go too far in fighting it.

And recent changes to Canada’s impaired-driving laws go way too far:

Canadians could now face criminal charges for driving with illegal amounts of alcohol in their system, even if they were stone cold sober while behind the wheel, under tough new impaired driving laws passed by Parliament, according to criminal defence lawyers.

Bill C-46, which came into effect last month, gives police wide-ranging new powers to demand sobriety tests from drivers, boaters and even canoeists.

Police no longer need to have any reasonable grounds to suspect you’re impaired, or driving with a blood alcohol concentration (BAC) of more than .08, which is 80 milligrams of alcohol in 100 millilitres of blood, before demanding you submit to testing.

Refusing the test can result in a criminal charge.
But even drinking within two hours after you’ve stopped driving or boating could now get you arrested, if your BAC rises over .08.

[…]

Previously, if drivers could prove they weren’t yet over the legal limit  when they were stopped by police, a court could find them innocent.

The new law removes that defence.

“Its primary purpose is to eliminate risky behaviour associated with bolus drinking, sometimes referred to as drinking and dashing” Wilson-Raybould told Parliament.

But Brown calls the law a solution for a problem that rarely existed and claims it will “criminalize Canadians who have done nothing wrong.”

He points to number of scenarios where people park their cars with no intention of driving anytime soon, then start drinking.

If you drive yourself to a restaurant, bar or party and have a few drinks after you arrive, you can be found guilty of impaired driving. Even though you weren’t impaired when you were actually driving. I’m confident this will be struck down by the Supreme Court of Canada eventually, but many innocent people may have their lives thrown into complete turmoil in the meantime.

Last summer, the federal government made applicants for a summer-jobs program sign an attestation that its “core values” aligned with the Charter of Rights and Freedoms. And now this same government is trampling on the presumption of innocence, regardless of what s. 11(d) of the Charter reads.

A Liberal government picking and choosing what sections of the Charter holds sacrosanct? Shocking, I know.

The “defence did not call any of its own evidence”

That’s the subhed to the CBC’s online story about Raymond Cormier’s acquittal on charges of murdering 15 year-old Tina Fontaine:

Screenshot from 2018-02-22 19-45-29

The trial, which began on Jan. 29, was originally scheduled to last five weeks, but the Crown rested its case after presenting evidence over the course of 12 days, and the defence did not call any of its own evidence.

In a criminal matter, the accused doesn’t necessarily have to call any evidence in his own defence.  For most charges – including murder – the burden of proof lies completely with the Crown, and it’s not enough to show that the accused probably did it.  Nothing less than proof beyond a reasonable doubt is required.

In this case, it certainly appears that the evidence – including conclusive proof that this young girl was actually murdered – simply wasn’t there:

The Crown had no forensic evidence or eyewitnesses directly linking Cormier to Tina’s death, and the cause of her death remains undetermined.

Instead, the Crown’s largely circumstantial case relied on secretly recorded statements made by Cormier, along with testimony from witnesses who said they saw Cormier and Tina together in the days before she disappeared from the Best Western Charterhouse hotel in downtown Winnipeg on Aug. 8, 2014.

The Crown had no forensic evidence or eyewitnesses directly linking Cormier to Tina’s death, and the cause of her death remains undetermined.

Instead, the Crown’s largely circumstantial case relied on secretly recorded statements made by Cormier, along with testimony from witnesses who said they saw Cormier and Tina together in the days before she disappeared from the Best Western Charterhouse hotel in downtown Winnipeg on Aug. 8, 2014.

[…]

Cormier’s defence lawyers, Tony Kavanagh and Andrew Synyshyn, challenged that evidence, arguing the Crown’s case was built on inferences made from recordings that are difficult to hear.

First, with no cause of death, Kavanagh argued in his closing remarks that the jury cannot know for certain that Tina died as a result of an unlawful act, and Cormier should be acquitted “on that alone.”

They argued those statements allegedly made by Cormier in transcripts prepared by police could not be verified by listening to the audio recordings and pointed out that at no point in the transcripts did Cormier admit to the killing.

Even if the jurors accept the accuracy of the words written in police transcripts, defence lawyer Kavanagh argued that rather than admissions of guilt, Cormier’s words should be interpreted as those of a man who feels guilty for not doing more to help Tina.

“That is the guilt that is eating him,” Kavanagh said.

They also challenged the memories of witnesses who said they saw Cormier with the duvet cover and suggested there are other potential suspects who might have harmed Tina.

“We say that justice for Tina Fontaine does not result in an injustice for Raymond Cormier,” Kavanagh said.

Coming so soon after the Gerald Stanley case – another in which a white man was acquitted of killing a young First Nations person – the anger over Cormier’s acquittal is already trending on social media.  For me, the real question is whether a defendant of aboriginal descent, charged with murdering a young white person, would have received the same same benefit of the doubt.

A Halifax couple’s adoption nightmare

After months of work and thousands of dollars spent, Adam and Pam Webber – a couple of good friends of mine – have had their worst dears confirmed:

A Halifax couple says their dreams of adopting a child have been crushed by Russian politics.

Pam and Adam Webber were in the final stages of a year-long adoption process. They thought they’d be flying to Russia this fall to bring home a toddler, but then they heard Canadian adoptions of Russian children were in limbo.

“It’s just heart wrenching and really hard to take,” said Pam.

International adoption was the end of the line for her. She and her husband tried fertility treatment and adopting from within the province with no luck.

“We wanted a family. We wanted a young family. We wanted a very involved family. I was the little girl who asked Santa for her own baby,” she said.

Adam Webber said they chose Russia because they heard the process is quicker.

“Quick being a year or two, as opposed to three or more years like a lot of places,” he said.

[…]

A Russian law banning adoptions by U.S. citizens was rushed through parliament in December and sped to President Vladimir Putin’s desk in less than 10 days in retaliation over a U.S. law calling for sanctions on Russians identified as human-rights violators.

Then, earlier this month, the country stopped adoptions to Sweden because it allows same-sex marriages.

But there was no word on Canada, so the Webbers prepared a toddler’s room and Pam quit her job so she could fly to Russia at a moment’s notice this fall.

Still, they braced for bad news. On Tuesday the Webber’s fears were confirmed by their Ontario adoption agency.

“It’s been a long couple of weeks trying to get answers and officially we found out today that Canada-Russia adoptions are suspended,” she said.

An increasingly nationalist Russia has been shutting the door on international adoptions for quite some time – first against the United States (ostensibly because of some admittedly heartbreaking cases in which adopted children were hurt or killed, but mainly as revenge) and now against other Western countries.  And this is what awaits them in their own country:

Russian authorities have ordered the arrest of two nurses they said severely beat three young children at an orphanage during a night of drinking. According to the authorities, they beat the children to get them to stop crying. One of the victims, a 7-month-old, was wrapped in a sheet and stuffed in a plastic container to muffle the cries.

The other children, a 3-year-old boy and a 10-month-old girl, were hospitalized with multiple injuries, Russia’s Investigative Committee said Thursday. The 7-month-old child was initially in a coma. Their current conditions were not immediately known.

[…]

…critics say little has been done to improve conditions at Russian orphanages or to promote adoptions domestically. More than 600,000 Russian children live outside the custody of their biological parents, many in foster homes. But about 130,000, many with physical and mental health problems, live in orphanages, where they are sometimes neglected and abused.

It was not clear how many children lived at the orphanage in the Khabarovsk region, or whether there had been a history of abuse there.

Investigators said the beatings began after several children awoke during the night and started crying. The children were not found until the next morning, when other workers arrived. Only then were they were taken to the hospital.

More at adoptanewattitude.com.