Category: Current Affairs

First Televised Ontario Election Leaders Debate Monday Night

The writ will drop this week and the Ontario provincial election will officially be underway. Leaders’ debates are key events in any election campaign, perhaps no more so than this year in Ontario.

The “network consortium,” CBC, TVO, Global, CTV, CHCH, CPAC, will air their “official” consortium debate on May 27th. Coming as close as it does to election date on June 7th, it will undoubtedly attract widespread interest. Tomorrow evening, CityNews is offering a preview, beating the big boys to the punch.

MONDAY, MAY 7th, from 6 to 8 p.m., CityNews will host the first televised leaders debate between the three major candidates to become Ontario’s next premier. It will air commercial free on City TV, CityNews.ca, the CityNews Apps for iOS and Android, and the CityNews Facebook page. It will also feature on OMNI2 at 6 p.m. in Punjabi, and 10 p.m. in Mandarin.

The focus of this debate will be on issues of particular concern to the city of Toronto: policing, drugs, transit, education and real estate. The leaders have already chosen the order in which they will respond to six questions posed from the audience on these issues. Each will be able to ask one other question themselves.

Although organized with apparently little advance public notice, this first debate between the key leaders is a high stakes affair. The sponsor may be a minor player in the Canadian media scene but the computer and social media exposure means that the images created in this early debate will be readily available to a wider audience in the month ahead. And the focus on non-English-speaking voters is a healthy reminder of the changing nature of the Ontario electorate.

Several weeks ago, the Toronto Black Community organized a leaders’ debate in the city. Kathleen Wynne, Andrea Horwath and Green Party leader Mike Schreiner participated. Doug Ford did not; he said he was already occupied touring Ontario’s north country.

This time, Doug Ford will be debating, in the open, unprotected by his handlers, in a format where he has not shone in the past. The pressure will be on him to show if he has any real interest in, or knowledge about, policy issues and, equally important, whether he has the capacity to be “premiersorial” (as opposed to “presidential,” in the American context). Kathleen Wynne is an experienced debater who used the consortium leaders’ debate in the last provincial election to skewer Tim Hudak’s higher polls. Can she do it again? Can she reverse the prevailing polls, which presently predict a Tory majority? Andrea Horwath will be attempting to prove herself as an “alternative agent for change.”

Already, the nature of this debate, and that projected by the “consortium network” on May 27th, has come in for criticism. Martin Regg Cohn wrote a column in the Toronto Star on Thursday entitled “Green snub shows TV in the past,” which I highly recommend. His complaint? That Mike Schreiner, leader of the Ontario Green party, has been excluded from participation.

He writes: “To their credit, the Liberals and the New Democrats have previously agreed to invite the Greens into the studio. They also issued challenges to hold several televised debates. But Ontario’s TV networks are trapped in time… running their own shows without public accountability. This isn’t the first time they have conspired to exclude the Greens, but this time the exclusion is more egregious than ever.…. Today with Ford’s Tories vowing to dismantle cap and trade, and block any form of carbon pricing to reduce global warning, excluding the Greens from the discussion will deprive voters of an important voice.”

Cohn goes on to rebut the networks’ arguments against including the Greens: that they don’t yet have a seat, that they have no prospect of winning power, that adding a fourth leader will render the debate unwieldy. He quite rightly asks: “How is a political movement supposed to make headway without having a way to be heard?” He also points out that, in earlier federal elections, “the networks… invited the Western-based Reform party and the Bloc Québecois to participate, despite their narrow regional power bases,” and that these five-person debates were not particularly unwieldy.

He writes that “the Greens have consistently run candidates in every riding in Ontario, and attracted significant voter support in past elections, ranging as high as 8 per cent. That’s far more than any fringe party.” He adds that “there is one new factor that changes the calculation. Like the three biggest parties, the Greens receive a per-vote public subsidy, as part of the campaign finance reforms brought in before the election to curb the influence of corporate and union donors… it is manifestly unfair to deprive [the Greens] of the chance to attract voter support—and the financing that follows—during a debate. It is also anti-democratic to deny voters the chance to scrutinize the performance of any publicly subsidized party.”

I agree totally. Leadership debates are important. A well-functioning democracy (a rising concern in this age) depends on an informed electorate. Excluding the Greens is a betrayal of the professional responsibility and the trust that the media owes the public. To CityNews and the “network consortium,” I say: “Get with the times.”

I also want to know: Is it the networks who are responsible for excluding the Greens? Or have the PCs made it a condition of their participation? If so, that would be consistent with Doug Ford’s position that he will abolish the public subsidy for political parties. Whatever else one might say about the Ontario Liberals, they brought in Canada’s toughest political financing regulation, with the political party subsidy as the quid pro quo for curbing corporate and union donations. This will be the first Ontario election run under the new rules.

***** ADDENDUM: The second televised leaders’ debate will be on northern issues.  It will be live streamed at CBC.ca/Toronto at 11:00 am today, Friday May 11th.  Short notice but probably well worth watching. 

 

 

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The Inside Dope on the 2018 Ontario Election, Riding by Riding

If you are concerned about the upcoming provincial election, you owe it to yourself to get beyond the polls and the media’s painfully inadequate coverage. There is a third source which I have just discovered. It’s called the Election Prediction Project and is found at www.electionprediction.com.

The website offers an analysis of the local factors affecting the election campaign and the likely results in each riding. It lists the candidates in each riding (or lack thereof, even at this late stage). It describes the nature of each constituency, and earlier voting records (both provincial and federal).

Particularly useful is the information it provides about the many ridings reconfigured since the last provincial election. You will find a list of the incumbents affected by the redrawn electoral boundaries, and the previous results in the old ridings transposed to the new ones. There have been significant changes in many ridings since the last election and, if you are anything like me, you may not know the precise details of how the changes affect your riding.

Apart from these mechanics, the website is a window into current conditions and personalities running in each riding. Ordinary members of the public offer periodic submissions, based on their insight and experience, about what is going on locally and who they expect to prevail. The rules for posting require that each submission give some concrete reason for the view expressed and conform to specified standards. We cannot know the political persuasion of the authors, but diatribes and ideological debates are discouraged. Reading the posts is like sitting in on a discussion among local political junkies about the ridings they know best. Based on the submissions posted to the site, a panel of editors of diverse political backgrounds predicts the likely result.

For political junkies like me, and for anyone who wants to understand what is happening at the riding level in this election, The Election Prediction Project is invaluable.

There is a map breaking down the province and allocating each constituency to one of five regions in the province: The City of Toronto (416), The 905, Eastern Ontario, Southwestern Ontario, and Northern Ontario. You can find your own and neighbouring ridings, and other key ridings of interest across the province.

The latest “Current Prediction” (effective 2018-04-28) put the projected results in seats as follows: Liberal 20, Progressive Conservative 49, New Democratic 16, and Too Close to Call 39, for a total of 124 ridings. Given the polls we hear, even 39 seats considered “too close to call” surprised me. That offers some hope for a variety of scenarios.

Just to see how the website works, let’s look at Beaches-East York, which is a Liberal seat as yet too close to call. Apparently, the strong NDP candidate who ran there last time is not running this time, and, absent strong local candidates, this is said to be a riding that could vote for a leader like Wynne over Horwath. On the other hand, the close split in the vote last time could bleed votes from the Liberal incumbent to the NDP, making this riding an NDP pickup.

Or, take Mississauga Centre, where Tanya Granic Allen secured the PC nomination last week. This is a new riding cobbled together from four earlier constituencies, all of which voted Liberal in the last provincial election. If the post-Ford-win polls correctly show a massive switch to the Tories, this riding and its adjacent seats could turn on a dime and the Liberals could be wiped out in the region. But this riding is not considered socially conservative and many Tories are annoyed that the new leader overturned the nomination of the previous PC candidate in favour of a “parachute” candidate.

Check out the discussion of Etobicoke North (Doug Ford’s riding) and Don Valley West (Kathleen Wynne’s riding). Both could be tight races, depending on who turns out to vote. 

***** ADDENDUM: Yesterday’s NOW published a very interesting analysis called “Ontario Election Watch: Your Primer on 20 Make-or-Break Races in Toronto and the 905,” including a piece about “Why is Doug Ford Running Scared?” They have also launched an online hub at nowtoronto.com/election2018 to monitor all 124 ridings across the province leading up to June 7th. As they say, “Now more than ever, it’s important to be informed.” I agree and intend to bookmark it.

 

 

 

 

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So What is the Tory Platform?

If you are anything like me, relentless media predictions of a Tory majority in the upcoming provincial election, with Doug Ford as the next premier, are super depressing. 

“A desire for change” is seen as sufficient excuse to elect a government led by a novice of questionable reputation with a penchant for divisiveness and “doing his own thing.” Chosen by courting the extreme social conservatives in his own party, his first action on assuming the leadership was to shred his party’s platform unilaterally. Apparently “The People’s Guarantee” was a personal frolic of the discredited Patrick Brown and did not represent the considered intentions of the Ontario Conservative Party. If it didn’t, then what does? What does the Tory party with its new leader offer to the people of Ontario? Apart from some vague notion of “change,” we’ve heard nothing. Nada. It’s been two months since the Tory party leadership changed and still no platform.

Only a general call “to find efficiencies” in government. What efficiencies? To what programs and services? Doug Ford and the Tories do not say.

But Ford does promise to “fire the C.E.O. of Ontario Hydro,” which business commentators universally dismissed as “naïve, amateurish, and of no utility” in solving the problems at Ontario Hydro. And he promises to “audit the finances of the Liberal government,” an exercise independently completed last week as required by legislation passed by the Liberals themselves and now biting them back before the election itself. But if the Libs went into greater debt than they claimed to finance a reduction in hydro prices, Ford will add to the debt by promising to reduce hydro bills by a further 12%. Duh?

He has absolutely no policy on the environment, but will oppose any carbon tax, and will cut the highly successful cap-and-trade system, which is earning good money for green initiatives in Ontario. And he promises to “shut down” the newly opened drug addiction clinics, which all medical, legal, and law enforcement experts across the country support. Oh yes, and, despite years of parental and professional consultation, he will scrap the existing sex education curriculum for Ontario students. He has to do that, because he must repay the Granic Allen social conservatives who gave him the leadership.

Doug Ford knows nothing about provincial policy and has a track record at the municipal level of disliking the detail and collaboration that good policy development requires. What he seeks is a blank cheque to do what he wants, whatever it might be. Leave it to Ford to “stop the gravy train” in Toronto (and in Ontario), just as Americans were to rely on Donald Trump to “drain the swamp” in Washington.

As it turned out, there wasn’t a gravy train in Toronto, the executive in the White House is a revolving door, and Washington DC is full of Republicans “swamped” by the unpopularity of their own ostensible leader. Doug Ford may not be totally analogous to Donald Trump, but the Ontario Conservative Party has sold its soul to the same inexperience and populist bombast as did the Republicans in the United States two years ago. Former Ontario Premier Bill Davis must be appalled at what his strong and principled political party has become. 

If there is a need to curb the current Liberal government, there are other ways to do so than by giving a majority government to a political party that its own interim leader, less than three months ago, said was full of “rot.”

Have you noticed how the Tories are reining in their new leader, clearly scared silly that he might go off message? There is a Tory campaign bus, but the media has been denied access to it. “The media can attend my campaign meetings,” says Doug Ford, but he won’t facilitate their being there. That reminds me of how Mayor Rob Ford, with the support of his enabling brother Doug, denied the Toronto Star notice of the mayor’s agenda. Why? Because the Toronto Star exposed Rob Ford for what he was. Informed journalism is not what the Fords wanted when they were in earlier political office. And apparently not when Doug Ford is running for provincial election either.

When the Tories get their act together, and Doug Ford can be brought up to speed, maybe they will resurrect “The People’s Guarantee” which Ford so abruptly rejected. Saturday’s announcement that the PC’s are proposing a tax-rebate plan for child care may be the beginnings of that. If and when they do, we can look at their platform in greater detail. For the moment, the Tories are offering a pig in a poke, and one wonders why so many people are willing to buy in.

 

 

 

 

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When is the Trudeau Government going to get rid of Mandatory Minimum Sentences?

I hate to pile on the Liberals when they are down, but a recent editorial in the Globe and Mail and a series of articles by justice writer Sean Fine have raised the outstanding issue of what the government is doing to cut the number of mandatory minimum sentences which are now clogging Canada’s criminal courts.

Historically, Canada had a very few mandatory minimums in the Criminal Code, primarily for serous offences upon which everyone would agree. By 2006, there were 40. By 2016, the number rose to 80 plus another 26 related to drugs under the Controlled Drugs and Substances Act.

Stephen Harper’s “tough on crime” agenda more than doubled the number of mandatory minimums, primarily to satisfy his political base. The Tories pursued this minimum sentence mania as a direct attack on the traditional discretion of judges to impose sentence in the criminal justice system. Historically, judges exercised their discretion based on the facts of the individual case and according to established principles of sentencing in the common law and in section 718 and related provisions of the Criminal Code. All criminal justice professionals, police, corrections and rehabilitative experts agreed that this traditional judicial discretion best serves the interests of victims, offenders, the criminal courts, and public safety. In the face of this expert advice, the Harperites did the opposite.

What has happened post-Harper is a trend which was widely predicted and should be addressed as quickly as possible. For lack of action by Parliament on the issue, Sean Fine reports that judges across the country and at all levels have been left to deal with the situation on an ad hoc basis, as best they can. The Supreme Court of Canada in 2015 struck down the three-year minimum for illegal gun possession in R. v. Nur, and a year later the one-year minimum for a second drug trafficking offence in R. v. Lloyd. They found that the statutory minimums were so excessive in the circumstances that they violated the offender’s 12 Charter rights against “cruel and unusual punishment.” Subsequently courts at all levels, including various Courts of Appeal who define the precedents applicable in their provinces, have made similar findings in cases before them.

The most recent is that of the B.C. Court of Appeal which struck down a six-month minimum jail sentence, and instead imposed a nine-month house arrest, for an Indigenous man who offered his niece $100 in exchange for a sex act. In that case, the Court emphasized its statutory and common law duty to consider the consequences of the sentence on Indigenous people. Now the Attorney General of B.C. is appealing the case to the Supreme Court of Canada arguing that the minimum jail sentence is necessary to protect Indigenous victims.

This case-by-case litigation in courts across the country is costly, counter-productive, and a colossal waste of time and money. A patchwork of contradictory decisions apply different penalties to different people in different provinces and territories. Crown attorneys for the provinces and the federal government waste thousands of dollars defending minimum sentences which did not before exist. Courts are clogged with cases which cannot be resolved because the constraints imposed by the minimum sentences impede plea negotiation. The existing uncertainty encourages unnecessary litigation at great expense to the public and taxpayers alike.

Rationalizing the minimum sentence regime in Canada’s Criminal Code and the Controlled Drugs and Substances Act is a no-brainer. The Prime Minister and his Minister of Justice would be wise to make it a priority.

There are many problems facing Canada’s criminal justice system: delay in the courts, the lack of juries representative of the people, a Criminal Code which reads like the Income Tax Act. All can not be addressed at once

The government has developed new procedures for appointing Supreme Court and Superior Court judges. It has filled many judicial vacancies. Money has been allocated to promote the training of police officers who investigate sexual assault cases so that the rate of cases determined to be “unfounded” declines. This is part of a move to promote “best practices” in Canada’s criminal courts.

If “best practices” is the name of the game, Parliament must deal with the excess of mandatory minimum sentences as soon as possible. The next election will come all too quickly. I would hate to see this promise relegated to the list of the “undone.”

 

 

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“Trade Wars and Tightropes”

GEOFFREY STEVENS, former managing editor of the Globe and Mail, writes a weekly column which he circulates to his personal distribution list and publishes in the Waterloo Region Record. His column entitled “Living with the fool next door; trade wars and tightropes,” published yesterday, says it all.

With thanks to Geoffrey, I commend it to you and share it here:

“Living with the fool next door: trade wars and tightropes

“’Trade wars are good, and easy to win’ – President Donald Trump, by tweet, 5:50 a.m. ET, March 2, 2018.

“Excuse me, but Donald Trump is a fool – a blithering, dangerous fool.

“This is the 21st century. Trade wars are never good. In today’s interdependent world, they may be impossible for any nation to win, even the United States, which is no longer the economic colossus that Trump, stuck in an isolationist time warp, believes it is.

“As Washington Post columnist Paul Waldman put it on Friday, ‘You could survey a hundred economists – both liberal and conservative – and not one would tell you that “trade wars are good, and easy to win.’

“On Thursday, Trump, who has the power to do so by executive order, announced he will impose tariffs of 25 per cent on imported steel and 10 per cent on aluminum. ‘The immediate beneficiaries will be the American steel and aluminum industries, while the victims will be . . . well, anyone who buys anything that’s made with steel or aluminum, which is pretty much everyone,’ Waldman wrote.

“The New York Times noted on Sunday that the American mills and smelters that would directly benefit from the new tariffs employ fewer than 200,000 workers, while the companies that would bear the burden of the higher prices the tariffs would bring – firms that manufacture everything from trucks to chicken coops – employ more than 6.5 million.

“Trump’s tariffs, announced without warning, are not only bad economics, they are bad politics. They aim to please a corner of his base at the expense of much larger numbers of blue-collar workers in manufacturing.

“It may make no sense, but that does not matter. Some Trump analysts argue that he suffers from gelotophobia, the fear of being laughed at. He seems convinced that America’s trading partners, led by China, are laughing at the United States and, by extension, at him personally. China, which accounts for 65 per cent of the U.S. global trade deficit, is the primary enemy in the trade war.

“After China, Canada is the United States’ largest trading partner. Trump, who betrays no comprehension of trade statistics, complains about a deficit with Canada. Yes, in terms of goods alone, the U.S. ran a deficit of US $18 billion in 2017. But when financial and other services are added to the ledger, the deficit becomes a surplus for the United States ($12.5 billion in 2016).

“Justin Trudeau and his emissaries have been making this case in Washington and state capitals for months. They argue that Canada and the United States enjoy the world’s best balanced and mutually beneficial trading relationship. The object should be to strengthen it, not to tear it down, as by renouncing NAFTA or by raising new tariff walls. The governors get that and so do congressmen from states that trade with Canada.

“For the moment, China is taking a cautious approach to Trump’s tariffs, downplaying the anticipated impact on Chinese exports. Beijing is waiting to see what happens next. Is Trump serious? Can he get his way? Or will he perhaps change his mind at dawn tomorrow?

“Nothing is ever certain with the erratic Trump, but all available indicators suggest that, yes, he is serious. Yes, he can most likely get his way, unless members of his Republican party find the courage to stand up to him. But although he is not likely to change his mind on trade, he could be diverted in his next tweetstorm. Perhaps he will be so outraged by something at the Oscars that a trade war will be driven from his mind – until it returns.

“Canada can hope so. Propinquity makes dealing with Trump especially difficult, and the fact that NAFTA is hanging in the balance adds urgency to the challenge. Trudeau needs to keep walking a tightrope – humoring the president while making it clear that Canada is not about to be bullied. The blithering fool next door is Canada’s problem, too.”

 

 

 

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A Spring Tease in Toronto Brings Signs of Hope

Reading the Sunday Star this weekend brought small signs of hope for better times ahead. It’s nice to read some good news for a change.

* The White House released the Annual Report of Trump’s Council of Economic Advisors, his own appointees, which clearly shows that Trump’s trade figures on NAFTA are out to lunch. They make the point that the US had a trade surplus with Canada when services are included in the calculations. Now that his own advisors have formally stated what Canada has said all along, will it make any difference in the NAFTA negotiations to Trump? to his lackeys in Congress?

* School children and youth in Florida are leading a campaign for gun control. Where their parents have failed, maybe the younger generations will succeed. I love the slogan in one photograph at a recent demonstration: “How dare you push legislation protecting us before we are born and not after the fact!” This may be the beginning of something good, particularly as they are calling for consumer boycotts against the NRA and against states with lax gun laws. David Hogg, a survivor of the recent shooting, is calling on tourists not to take their spring break in Florida.

* Is the National Rifle Association beginning to lose its lustre? American companies are said to be responding. Delta, United Airlines, Avis, Hertz, Enterprise, the Best Western hotel chain, Wyndham Hotels, and global insurance company MetLife have apparently all ditched the discounts they previously made available to NRA members. Other major companies are cutting their ties with the NRA: the First National Bank of Omaha, one of the largest private banks in America, cut its “Official Credit Card of the NRA,” Symantec is leading the boycott movement into the software industry, and Chubb Ltd announced it will no longer underwrite its “NRA Carry Guard,” popularly known as its “murder insurance.” #BoycottNRA is the new rallying cry. Can social media give this plea the same power that #Metoo has gained? Let’s hope so. In Canada, members of MEC are now calling for the co-op to boycott purchases from a company with a division which makes high-powered rifles. So they should.

Economic sanctions led to the end of apartheid in South Africa. Maybe economic sanctions by each of us, and by the companies we patronize, can be the answer to the carnage caused by American gun laws.

* The donnybrook of the current Ontario PC leadership race has highlighted the questionable capacity of the party to govern the province. Their current interim leader has admitted “the rot” in the party and is trying to clean it up. Until Patrick Brown withdrew on Monday, to the audible relief of his competitors and the rest of the party, he seemed hell-bent on discrediting the four candidates who are seeking to replace him as the future Premier of Ontario.

The first leadership debate made it painfully obvious that none of the newcomers has any grasp of policy issues facing the government of the province, and none favours a carbon tax. Patrick Brown at least approved of the party platform which was generally conceded to have been cribbed from the Liberals and he, at least, recognizes that a carbon tax is coming, like it or not. This upcoming election campaign is going to be very interesting. Have the Liberals been so bad that we need to trade them in for this bunch?

* Last but not least, Jean Terauds wrote a marvellous review entitled “Handel’s Alexander’s Feast a marvellous musical meal in Tafelmusik’s hands.” I heard the concert at Koerner Hall on Sunday and was thrilled. This was the first time the Tafelmusik Baroque orchestra and Chamber Choir have performed this oratorio. Secular, taken from John Dryden’s 1697 ode, “Alexander’s Feast or The Power of Music,” it included a concerto for the harp played by harpist Julia Seager-Scott using a triple-strung harp, a concerto for the organ played by Neil Cockburn from Calgary, wonderful arias, stirring recitatives, invigorating choruses, and many highlights by different instruments in the orchestra. The soloists, American soprano Amanda Forsythe, British tenor Thomas Hobbs, and British-Canadian baritone Alexander Dobson, were splendid. Under the deft direction of Ivars Taurins, it was an utterly marvellous performance, wildly received by the audience. And, according to Tafelmusik’s new musical director, Elisa Citterio, next season will feature three full performances by the Choir. That’s just what I need to hear to put joy in my heart and a spring in my step.

 

 

 

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Trudeau’s India Trip and the Convicted Attempt Murderer

The Liberal Government fraternizing in India this week with a high-profile Indo-Canadian convicted years ago of attempt murder has stirred up a hornet’s nest. Rightly so. It is shocking that Jaspal Atwal, a businessman from Surrey, B.C. who was once an extremist for Sikh separatism who was convicted of attempt murder, appears in a photograph taken in Mumbai with Sophie Grégoire Trudeau and Infrastructure Minister Amarjeet Sohi. Worse still, Atwal was invited to an official dinner at the Canadian High Commissioner’s Residence in Delhi, and then, when the story broke, un-invited. Appropriately so.

I agree with the domestic and international press that both were serious diplomatic gaffes which the Trudeau government should have avoided. Canada, of all countries, should not be seen, or perceived to be seen, as supporting separatist aspirations anywhere abroad. 

Smelling fresh blood, The National Post ran several background stories Friday and Saturday on Jaspal Atwal. Christie Blatchford and John Ivison provide alarming details of his early membership in the International Sikh Youth Federation, which Canada banned as a terrorist group in 2003. The federation’s objective was separatism for Khalistan which John Ivison says is “the would-be Sikh homeland in the Indian state of Punjab.”

Atwal has a very serious record of criminal activity in Canada, promoting separatism in his homeland. In 1985, Atwal was charged with a vicious near-fatal attack on prominent B.C. politician Ujjal Dosanjh, who publicly opposed Khalistan separatism. Although Atwal was later acquitted in court, Dosanjh remains convinced that Atwal was his attacker.

In 1987, a B.C. court convicted Atwal and three others of attempting to assassinate a visiting Indian state cabinet minister who was attending a family wedding on Vancouver Island. Atwal was sentenced to twenty years in jail, a sentence upheld by the B.C. Court of Appeal in 1990. He actually served five years in prison before he was paroled. All this was in the context of the extreme Sikh terrorism, which included the worst mass murder in Canadian history, the 1985 Air India Flight 182 bombing which killed 329 people over Ireland. Sikh terrorists based in British Columbia planted the bomb which took down the airplane.

Atwal’s assertion that he has been rehabilitated from his youthful lawlessness is belied by his recent criminal record. In 2010, while working as a car salesman, Atwal was convicted of an elaborate automobile fraud against the B.C. Insurance Corporation. Two years later, his appeal against that conviction was denied. Under the current rule for pardons (ten years) imposed by the Harper government, he may not yet be eligible for a “pardon.”

In the face of his criminal record, his close ties with the Liberal party are cause for concern. Maura Forrest in The Post catalogued Atwal’s relationship with both the provincial and federal party. He was an executive member of a federal Liberal riding association in Surrey from at least 2011. He was invited to watch the budget speech in the B.C. legislature in 2012. He attended many fundraisers for the Liberals. He has been photographed with Michael Ignatieff, Justin Trudeau, Public Services Minister Carla Qualtrough, and Brampton Liberal MP Sonia Sidhu. B.C. Liberal MP Randeep Sarai admitted that he facilitated Atwal’s request to attend the High Commissioner’s event, actions which Trudeau has now said he will investigate further. Apparently, Atwal had been on a list of extremists banned from entry into India. Yet here he was, admitted to India and intimately interacting with the Canadian delegation.

How embarrassing for Trudeau, the government and our country. It is almost as chilling as the picture of the Queen in the company of Colonel Russell Williams, a photo taken before Williams later pleaded guilty to multiple counts of first degree murder. At least, Williams’ crimes were not yet known; the Liberals have no such excuse about Atwal’s history.

The incident raises all sorts of very serious questions. Why was Atwal not vetted by officials at Global Affairs, ISIS, CSIS, or other Canadian intelligence and security? How is it that India lifted the ban against his admission to the country? How is it that the Liberals have been so close to him in recent years?

Maybe this will be a lesson for all Canada’s political parties. They cozy up to anyone for political purposes at their peril. If sexual misconduct is a no-no, surely an existing criminal record and a history of extremism and fraud should also raise a red flag. The pursuit of votes must not come by compromising Canadian values nor, more importantly, safety and security.

This incident is also a useful reminder to all Canadians, and particularly to newcomers to the country who may not know the details of our history, that violent extremism in Canada did not start with the Islamofacist jihadists we fear today.

When I was growing up in British Columbia in the 1950s, the radical Sons of Freedom Doukhobors, a religious sect from Russia who settled in the B.C. interior, bombed electricity power lines in the province and their women demonstrated in public places in the nude, against compulsory public education among other things. The B.C. government responded by arresting the bombers and rounding up their children to make them attend school. I don’t know if they had residential schools for Doukhobor kids; the topic would be worth some research.

During the 1960s, the Quiet Revolution in Quebec prompted the growth of the FLQ (Front de libération du Québec), a Marxist, paramilitary separatist group which used violence to promote its aims. In 1969, the FLQ bombed the Montreal Stock Exchange causing massive destruction and seriously injuring 27 people. The group set off a further series of bombs over the summer which culminated in their bombing the home of Montreal mayor Jean Drapeau. In October 1970, they kidnapped Quebec Deputy Leader and Minister of Labour, Pierre Laporte, whose body was later found in the trunk of his car. This began the October Crisis, when Prime Minister Trudeau the elder invoked the War Measures Act, to the horror of civil libertarians across the country.

When I was a judge sitting in Scarborough from 1995-1999, Tamil gangs, who brought their civil war from back home with them when they immigrated to Canada, plagued the community. Rival gangs were before the courts on many charges. I remember the day when one gang leader, charged with many crimes of violence, attended court with a can of gasoline under his arm. He apparently intended to immolate himself in the court room. When he was stopped by the strict airport-like security set up at the courthouse door, he threw the can of gasoline across the corridor, causing the building to be evacuated. He later received nine months in custody for charges arising out of that incident. This violence ended only after vigorous prosecutions and the intense involvement of the law-abiding Tamil community.

If Sikh separatist extremism is on the rise (who knew?), then it behooves all of us to make sure that we are not seen to be soft on violent extremism, either at home or elsewhere in the world. All politicians should take note.

 

 

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Afghan Migration Goes Personal

I met Mujeeb at Costco before Christmas. He was pushing a dolly which held a half-dozen deep grey plastic bins, some more full than others. When I asked him what he was doing, he explained that he was filling orders for an on-line computer shopping site. He was using an iPad to keep track of the orders. Apparently, people choose what they want to buy on the website. He is their personal shopper who fills the orders and later delivers them. He told me the name of his company but I have lost the note on which I wrote it down. (I should have used my iPhone “notes,” as I normally do to record such information. Perhaps I was so excited about meeting Mujeeb that I forgot.)

Sensing that he might be new to Canada, I asked where he was from. He replied that he was from Afghanistan, and that he had come to Canada with his parents and his siblings. I told him about my son and daughter-in-law in the Canadian army who had deployed several times to Kabul and/or Kandahar. He told me that all his family were now working in Canada and that his sister was a student at the University of Toronto. He also told me that there was a book written about his family.

No kidding? I had vaguely heard of a book written by CBC journalist, Carol Off, about an Afghan family whom she befriended and had helped come to Canada. Apparently, four months post-9/11, Off was in Afghanistan gathering information for what later became a very successful CBC documentary. Among her most significant sources at the time was Mujeeb’s father, Asad Aryubwal, who provided her with information about war crimes by Afghan warlords. His forthright cooperation with a western journalist however came at a cost. After numerous threats to his life, he had no choice but to flee to Pakistan which, as the political circumstances continued to change at home, he did four times before he was forty. In the fall of 2007, Off learned that Asad needed her help. Contrary to customary professional journalistic practice, she felt she had no choice but to become involved.

Needless to say, I rushed off right away to find Carol Off’s book, All We Leave Behind: A Reporter’s Journey Into the Lives of Others (Random House Canada, 2017). Reading it was a revelation, a totally compelling view of how a single family dealt with the turmoil in their homeland and their seemingly-interminable seven-year wait for permission to immigrate to Canada. Off’s description of their travails will break your heart.

This book is an absolute must for everyone who wants to understand what it means to be a refugee from a society such as Afghanistan.

Carol Off now co-hosts the CBC Radio current affairs program, “As It Happens.” Several weeks ago, this book won the prestigious $40,000. British Columbia National Award for Canadian Non-Fiction. Jury members praised it as “a timely memoir that offers both context to, and a closeup of, uncomfortable truths: the failures of the West’s involvement in Afghanistan, the hurdles confronting refugees who seek safety in Canada, and the dilemma of a combat journalist expected to maintain professional distance from her sources.”

It’s a wonderful book. The Timeline of Major Events and the Cast of Characters at the back of the book are in themselves an invaluable thumbnail guide to Afghanistan’s history. I am thankful that my chance meeting with Mujeeb brought his family’s story and this book to my attention.  I wish them all the best.

 

 

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Toronto’s Christmas Present: A New Subway Extension

It’s Boxing Day, that treasure from our British past which I cherish. For those of us who have no inclination to seek bargains, it’s a time to relax, sit around the fireplace, read a book, eat leftovers, and sink into the sublime serenity of a day with nothing on the schedule.

Before settling down to an evening of binge watching The Crown, I want to share with you my reaction to Toronto’s new subway extension. Last Thursday morning, I rode Toronto’s Number One subway line from Queen and Yonge Street downtown all the way up the old Spadina line to Sheppard West station (the end of the previous line at Sheppard and Dufferin), and then to the new terminus at Vaughan in York Region. It took me 51 minutes to make the trip. Without leaving the system, I then did a tour of each new station, to the extent I could see them without going out of the turnstiles. I did not see the exteriors of the new stations. But I took photos, talked to TTC staff and passengers, and left utterly exhilarated by what I saw.

The terminal station, Vaughan Metropolitan Centre, is a Transportation Hub which connects to the York Region Viva bus rapid transport north of Highway 7 and to York Region Transport (YRT) buses at the SmartCentres Place Bus Terminal. With seven knockout panels as part of the design, it is also intended as the centre of a planned downtown to feature a large park, condo towers, shopping and entertainment facilities to be constructed in the next decade.

I loved the spectacular colours of the upper level windows; such bright colours will lift the spirits on the most dreary of days. As in all the new stations, there are shiny new elevators making the system wheelchair accessible to all levels, glistening escalators which are lit at foot level and which go up and down (if not side by side, at least at different ends of the platform), and solid metal handrails in the middle of the staircases. For those of us who take stairs, such handrails will be a godsend. As an incentive, the SmartCentre which runs the local parking lot is free until January 1st.

Approximately five minutes south is the next station, Highway 407. Located just west of Jane Street, south of Highway 407 on the west bank of Black Creek, it connects with York Region Transport and Brampton Transit, and includes a commuter parking lot with 585 spots, plus a passenger pickup and drop-off area. Parking is free until April 1st, 2018; obviously an effort to entice commuters with cars onto the subway. An attendant told me that, since the extension opened last week, the parking lot has been full each morning by 7:30 a.m.

Commuters can also park at the third station, Pioneer Village, at Steeles Avenue West and Northwest Gate, to the west of York University. There, the parking lot can accommodate 1500 cars, and is free until April 1st. The ceiling lighting installation called LightSpell over the subway platform is already controversial. The design of the fixture is distinctive in itself. What I failed to appreciate, until I read about it in the Toronto Star, is that five keyboards on the platform allow passengers to type eight-figure messages that will be reflected in the lights for the edification and/or amusement of their fellow travellers. The TTC has apparently delayed full implementation of the fixture until they can develop software to prevent hate messages, an enterprise that has provoked complaints of censoring free speech. That the installation is provoking controversy already heralds a notable future for the site.

The fourth station, at the heart of York University’s Keele Street campus, is the reason for the subway extension in the first place. The platforms are busy with students using the new station. It breaks my heart to think of the hundreds of thousands of students and staff who have endured years of commuter time and inconvenience travelling to the university since the extension was first proposed decades ago. The lack of political vision, persistent partisan bickering, constant changes, and construction delays which have plagued extending the subway even to York University is a shameful history which we must remember but cannot dwell on. The extension to York University is finally built and everyone is exultant.

The York University station has an elaborate Information Centre on the concourse at the turnstiles. The walls are festooned with promos that would be of interest to students, the signage in the concourse specifically identifies York University sites of interest, and there are two pay telephones for those who need such amenities. (There is always someone.) Most engaging of all was the TTC customer service representative who was knowledgeable about the extension and keen to answer my questions. I may not have fully appreciated the “exciting” Liquid Crystal Display (LCD) artwork which the TTC touts at the station. For me, as for most students, getting to the campus quickly and comfortably is such a treat; everything else is superfluous.

The next stop is Finch West station, located under Keele Street, north of Finch Avenue West. This station will also feature a bus terminal, commuter parking lot, passenger pickup and drop-off, and secure bicycle parking. Again, the bright red of the corridors and brightly coloured windows at the concourse are delightful. Already, many people are using this station.

The last of the new stations is Downsview Park, the first stop west of the old Sheppard West station. An attendant told me that the station is in Downsview Park, very close to the rebuilt hanger called HoopDome, a gymnasium facility used for several years for basketball, indoor soccer, volleyball, and many other activities which attract athletes from across the city. The station is also a five-to-ten-minute walk from the entrance of the Downsview Canadian Forces Base to the east. Effective January 2018, the GO train on the Barrie line will stop at this station. Passengers will be able to transfer there onto the TTC and get a half-price discount on TTC fare.

There have been complaints that the subway extension does not include a washroom at each station. However, there are washrooms at: Sheppard East, the Vaughan Metropolitan Centre, and on the top floor (the bus bays) of the Highway 407 station. TTC riders can access these washrooms without leaving the system. 

It’s been so long since the TTC has generated genuinely good news. And maybe even longer since it has won any awards as the North American “Transit System of the Year.” We’ve finally done it. The system is beautiful, shiny, new, accessible, well-marked, and efficient. I am very excited about what is a world-class extension of the system which can make us proud. Check it out for yourself.

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Remembrance Day in West Vancouver

When the eleventh hour of the eleventh day of the eleventh month finally reached the west coast this morning, Marine Drive was closed and a huge crowd of folk was assembled in front of the arch in Memorial Park. It is located across the street from the West Vancouver Memorial Library which opened on November 11th, 1950, as a living war memorial to promote literacy and equal access to education for all. The annual Remembrance Day ceremony is organized by the local branch of the Canadian Legion, but it is fitting that Jenny Benedict, the Director of Library Services, was the “Master of Ceremonies.”

Just before eleven, the West Vancouver Youth Band played and the crowd clapped as an honour guard of flag-bearers led into formation a parade of veterans, alarmingly few remaining it seems, and ranks of local cadets, first responders, scouts, guides and cubs. Then, as four Harvard training aircraft flew overhead, there was the Last Post, two minutes of silence, the Lament and the Rouse. It is always stirring when so many people of all ages, children and dogs among them, stand in perfect silence to mark the ritual of remembrance. Whenever I hear the familiar words of In Flanders Fields, recited as they were today by two students, I think of the thousands at home and abroad who serve in our military and related services. Out of sight, they are not out of mind. Never more so than on November 11th.

At the end of the ceremony, the local Legion, the West Vancouver Lawn Bowling Club, and the Friends of the Library invited everyone to Open Houses. I went to the Library where the Book of Remembrance was on display, as were examples of the Research to Remember Project which accumulated documentation relating to all local participants in the two World Wars. With coffee and cookies at hand, the Dundarave Players led everyone in a sing-along of First World War songs. We sang the repertoire: The White Cliffs of Dover, It’s Long Way to Tipperary, Lili Marlene, Pack Up Your Troubles, There’s a Long Long Trail, A Nightingale Sang in Berkeley Square, and on and on. It was spirited, sentimental, and great fun. It occurred to me that the days of such sing-songs are likely numbered. Even without the words on the overheads, the crowd in the library knew the words and the tunes; few young people and new Canadians will know them now, or in the future. 

To end the day, I attended “One Last Song,” the 25th Annual Remembrance Day concert of the seventy-voice Chor Leoni Men’s Choir. Directed by Erick Lichte and accompanied by pianist Ken Cormier, they sang a rich collection of music, one piece after another, interspersed only with poetry readings from Siegfried Sassoon, Rudyard Kipling, and others. From the Scottish traditional “Will you go to Flanders?” and “Un Canadian errant,” through Alberta Celtic song-writer Lizzy Hoyt’s “Vimy Ridge,” adapted for choir and accompanied by a guitar, to a première performance of a new tune to “In Flanders Fields.” Then, Mendelssohn’s “Beati Mortui,” Kenneth Jennings’ music to the Dylan Thomas text “And Death Shall Have No Dominion,” Siegfried Sassoon’s text “Armistice: 1918 (Everyone Sang).” The concert concluded with the Last Post, two minutes of silence, and the entire congregation joining in the singing of “Kontakion,” with text from the Eastern Orthodox Memorial Liturgy. There was not an empty seat in the large West Vancouver United Church where the concert took place and few left unmoved by what we had heard. Such music seems so very right on Remembrance Day.

 

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Toronto Sings for Gord Downie

On October 24th, I joined the masses gathered on Nathan Phillips Square in Toronto, to honour Gord Downie by singing his songs. Daveed Goldman and Nobu Adilman (aka “DaBu”), the founders in 2011 of the weekly drop-in singing group, Choir! Choir! Choir! in Toronto, organized and led what was a communal hootenanny. Most everyone knew the music and lyrics by heart; the rest of us sang along using words we’d downloaded from the internet. It was a very stirring event.

I went because I knew so little about the man and the band which has become a national phenomenon. I needed to fill the gap. The Tragically Hip is a familiar name. When they played the Dawson City Music Festival years ago, I knew that my sister had hosted the band in her home at the after party. Gord Downie’s actions, since his diagnosis with a brain tumour in December 2015, quite properly made him a national hero. I admired the Secret Path graphic book and also the album designed to tell the story of Chanie Wenjack’s tragic escape from an Indian Residential School, and promoted on the Hip’s last national tour. All proceeds from the Gord Downie/Chanie Wenjack Foundation go to the National Centre for Truth and Reconciliation at the University of Manitoba.

For all that, I knew very little about Downie’s music over time; neither the tunes which made him and the band popular nor the lyrics which often read like poetry. I’m not alone. I’ve since learned that many of my cohort are equally oblivious to the impact he had on younger people, especially on those now in their late thirties or forties. People like the Prime Minister.

I now appreciate why his work has been so appealing. “I am a stranger… on a secret path,” the lead poem/song on his Secret Path album, released in tandem with the graphic book, is haunting and emotional. “Bobcaygeon,” where he “saw the constellations reveal themselves one star at a time,” resonates among those who know the north. “Ahead by a Century” speaks to who he was and what he stood for. “New Orleans is Sinking” and “Wheat Kings” speak of that which is familiar in ordinary life: “Bourbon blues on the street,” “hands in the river,” “Sundown in the Paris of the prairies,” “wheat kings and pretty things wait and see what tomorrow brings. “Late breaking story on the CBC.” “You can’t be fond of living in the past, Cause if you are then there’s no way that you’re gonna last.” “Courage” sings of the human condition: “No simple… explanation for anything important… . Any of us do and yeah the human… Tragedy consists in… the necessity Of living with… The consequences Under pressure. Courage… it didn’t come… it couldn’t come at a worse time.”

Mike Downie spoke to the crowd about the Downie Chanie Fund. In Gord’s honour, Don Kerr adapted “Fiddler’s Green for Gord.” The lyrics can be downloaded online. Beautiful.
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Current Legal Issues Worth Attention

1. Sean Fine’s gripping case study on unreasonable delay in the criminal courts: “I know the truth” in the Globe and Mail Focus section, Saturday October 21st.

In July 2016, the Supreme Court of Canada in R. v. Williamson threw out Kenneth Williamson’s convictions for buggery, indecent assault and gross indecency on Byron Ruttan because it had taken 35 months for the case to go to trial. Normally, victims of child sexual abuse are shielded by a court order banning publication of their identity. In August 2017, Mr. Ruttan requested that a judge lift the order so that he could tell his story. The judge agreed.

His story as conveyed to Sean Fine will break your heart. Mr. Ruttan, a fatherless child, was twelve years old at the time of the abuse. Mr. Williamson was his court-appointed big brother, a student at Queens University who later became a teacher. For decades, Mr. Ruttan lived with the effects of the abuse on himself and on his own family (including his children). In 2008, after telling his probation officer what had happened to him so many years before, Ruttan spoke with the police and charges were finally laid against his abuser.

To read why the case took so long to proceed through the courts is to weep. Although his abuser admitted some of the offences and a jury found him guilty of them all, the case is a classic example of how and why the courts repeatedly failed to provide the justice his situation required. I have never read a better rendition of the problem. The story is as searing as the photos taken by Fred Lum which accompany it.

2. Quebec’s Bill 62, forcing women with face coverings to show their faces to give and receive all government services.

By a vote of 66 to 51, the Quebec legislature on October l8th passed Bill 62, An Act to foster adherence to State religious neutrality and… to provide a framework for requests for accommodations on religious grounds… . Unprecedented in North America, the law extends to provincial and municipal services, to public transit, daycare, libraries, medical care, and more. Although popular in the rural areas of Quebec, the new law has aroused a storm of protest in Montreal (where the majority of face-covering women in Quebec live) and throughout the rest of Canada. The debate continues in the press and around dinner tables.

Toronto criminal lawyer David Butt wrote an opinion piece in the Globe and Mail on Friday, October 20th, entitled Quebec ban on face coverings is doomed in court.” His is likely the mainstream legal analysis on the issue, that the law is “a blatant violation of religious freedom guaranteed by the Charter of Rights,” an example of gender discrimination, and more. He explains that any limits which governments impose on such freedom must “be reasonable and carefully tailored to pursue legitimate social objectives” that alleviate some valid harm. Here, what evidence is there of any harm? And the law is vague and so potentially over-reaching that no one knows what it means or how it will be implemented.

So why, he asks, would the Quebec government pass a law which so obviously violates the Charter? Because it is politically useful to cater to majority public opinion, leaving it to the courts “to do the politically unpalatable, but necessary, work of striking down bad laws that violate… minority rights.” He concludes that such political calculation does not excuse the Quebec government which “is catering slavishly to the meanest urges of the voting mob” and encouraging “the infuriatingly persistent social tendency to tell women what their choices mean, and then impose that meaning on them.”

3. Bribery Charges under the Ontario Elections Act thrown out of court.

On October 24th, Judge Howard Borenstein, of the Ontario Court of Justice in Sudbury, acquitted Liberal operatives Patricia Sorbara and Gerry Lougheed of bribery charges under the Ontario Elections Act. He did so on a motion for a directed verdict, before the defence was even called to lead any evidence. As defence counsel Brian Greenspan told the press, “These are rare events. They occur when prosecutions ought not to have brought at the outset… when the law states very, very clearly that there was simply no evidence upon which any reasonable jury could possibly have convicted.” This is a definitive legal result which the opposition parties, who have made considerable political hay over the charges, would prefer to ignore.

Geoffrey Stevens, former managing editor of the Globe and Mail, compared the Sudbury prosecutions to that of Mike Duffy in a piece entitled, “A tale of two senseless and unnecessary political prosecutions,” which will appear tomorrow in the Waterloo Regional Record. I quote: “On the face of it, the two prosecutions… have nothing in common beyond the fact that both involved political figures and allegations of bribery.

Compensation and an Apology to Omar Khadr

I’ve been asked to comment on the current Omar Khadr controversy. I wrote about the Omar Khadr case in an earlier post which will give the essential background. (It can be found here.) Apparently over 70% of Canadians oppose the federal government’s compensation payment of $10.5 million to Khadr, yet over 40% do not know whether he was fairly treated or not. If they don’t know, how can they have an opinion on the wisdom, or not, of the compensation? The Trudeau government paid to Khadr the same amount the Conservative government under Stephen Harper in 2007 paid to Maher Arar, who had been tortured in Syria after being sent there by the United States on the basis of false information from Canada. I agree with the Globe and Mail that compensation in both cases was the right thing. In my view, with respect to Omar Khadr at least, the government got off lightly.

In 2010, the Supreme Court of Canada reviewed the actions of the Canadian government towards Khadr at Guantanamo Bay and found that the Canadian government had clearly breached his rights under Canadian law, the Charter, and various international treaties. The breaches were multiple, grievous, with continuing effects at the time of the Supreme Court decision and into the future. He was a Canadian citizen, born in Toronto, 15 years of age when in July 2002 he was found very seriously wounded and the only survivor of a firefight that destroyed an al-Qaeda compound during the war in Afghanistan. Under Canadian law, he was a young person at the time, yet he was incarcerated indefinitely, refused repatriation back to his native country (unlike British and Australians similarly situated), denied access to counsel, tortured and interrogated repeatedly, including by Canadian intelligence agents and diplomats who shared the fruits of those interviews with US authorities. The videotapes of those interviews by Canadian officials were before the Supreme Court of Canada. Although he later pleaded guilty to having thrown a grenade which killed an American military medic and wounded another soldier, his guilty plea was extorted from him after he had been imprisoned for eight years, tortured and offered a resolution as the only way to escape indefinite incarceration without trial in Guantanamo Bay. In Canadian law, his “confession” would not be admissible and, according to reports, there is little other evidence by which he could be found guilty of the offences alleged against him. When he finally was returned to Canada in 2012, he served further time in a maximum security federal penitentiary until he was moved to a provincial facility and, finally, in 2015, freed on bail.

The Supreme Court of Canada found that multiple breaches of Khadr’s rights violated “the most basic Canadian standards about the treatment of detained youth suspects.” There is no need for any further court action to establish those facts. Those are the facts which call for compensation and an apology. People who insist that the Liberal government has settled this case prematurely apparently do not appreciate that the issue has already been decided by the highest court in the country. Both the Liberal government in power at the time of the interrogations and the Conservatives who resisted later efforts to assert his rights and repatriate him back to Canada were responsible. In the circumstances, settlement is the prudent course of action.

I agree with the Globe and Mail that a civilized justice system does not torture people, even people who are fighting for the other side in a military conflict. “A legal justice system, one operating under the rule of law, does not coerce confessions with violence or threats,” does not single young people out for mistreatment, does not deny habeas corpus or access to a lawyer. The case is about “the rule of law” and the duty of the Canadian government to adhere to the rule of law in its interactions with all its citizens, including those abroad. We are all beneficiaries of the rule of law, never more so than when we find ourselves or our family or friends the focus of unproven allegations or alone, abroad, in trouble. The Canadian military fought for the rule of law in two World Wars, in Afghanistan and in various peacekeeping missions which continue today. Preserving the rule of law sometimes takes lives and sometimes takes treasure.

And I also agree with Colby Cash, writing in the National Post on July 6th:

“The intractable problem with Omar Khadr is simply his existence. The politicians who seem to crave (more of) his blood are… trying to punish the behaviour of his father, and to retroactively abnegate the slack application of dual-citizenship principles that allowed Khadr Sr. to become Canadian while leading a double life as an international terrorist. No one who has read Sophocles or the Old Testament can fail to recognize the mentality at work here. Omar Khadr is the manifestation of a curse upon the state. His personal activity and his ethical culpability are not really the point… It is the Khadr-frenzy crowd… who seem to own magic glasses that can see through time and penetrate the fog of war. They state confidently, as a fact, that Khadr was personally caught using violence against Canadian allies. This proposition seems untried by any forensic method we would expect to receive the benefit of, ourselves… Maybe you believe, to a moral certainty, that he threw the grenade… maybe you believe that Khadr deserves to be treated as if he had been a responsible, independent adult at the time. That is a fair amount of compounded confidence. But even granted all of that, don’t the legal traditions of Canada and the United States, whose courts have both condemned the regime under which he was tried and held, still require him to be given some credit for time served in an extra-national torture shop? Indeed, wouldn’t a non-legal idea of common justice require it? I am not a Christian, so I won’t invoke mercy. That concept does not seem necessary to the argument. But I do notice that no one seems very interested in adding it.”

 

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Three Ds to Reduce Delay in the Criminal Courts

Federal Minister of Justice Wilson-Raybould is meeting with her provincial counterparts next week to discuss delay in the criminal courts. I am a fully retired judge of the Ontario Court of Justice, appointed in the wake of a similar Supreme Court induced crisis on the same issue over twenty-five years ago (in the case of R. v. Askov). During my twenty-year career on the bench, I spent most of my volunteer time as a judge on the issue of delay. And still the problem remains. I have three systemic suggestions to throw into the discussion.

1. Download more “hybrid” criminal offences from the Superior Court to the provincial courts. During the 1990s, the federal government amended the Criminal Code to increase the maximum sentence possible for summary conviction on “hybrid” offences. These are offences where the crown has a choice to proceed by the more complex indictable route or by the simpler summary conviction procedure. Before, the highest sentence on summary conviction was six months in custody. When the amendment “supersized” the cap on sentence for these hybrid offences to a potential eighteen months in custody, crown attorneys assessed the facts of particular cases in light of the higher penalty and, if appropriate, often elected to go ahead by a summary trial in the provincial court. That meant that trials were held more quickly, and the accused had no right to a preliminary hearing. The result was that thousands of cases were downloaded from the Superior Court to the provincial courts, even high-profile criminal trials like those of Jian Ghomeshi and Mike Duffy. That downloading was successful. If the maximum sentence for summary conviction “hybrid” offences were raised again so that it could incorporate more aggravating facts, I suspect that many more cases would proceed in the lower courts.

2. Divert simple drinking and driving cases to an administrative enforcement procedure such as British Columbia implemented in 2010, which was upheld, with some changes, by the Supreme Court of Canada in 2015. When I sat in the Ontario Court of Justice in Brampton, post-Askov, drinking and driving offences made up 45% of our caseload. Even today, drinking and driving cases are the most hotly litigated of charges, and take months to process through the criminal courts. In British Columbia, the Automatic Roadside Prohibition (ARP) scheme provides that drivers who register a “fail” on a roadside breath test can have their licenses suspended immediately for up to 90 days, those who register a “warn” can have shorter suspensions of between three and 30 days, their cars can be impounded, a fine and mandatory remedial education imposed. Apparently, deaths caused by drinking and driving in B.C. have decreased since the administrative enforcement scheme was put in place, and criminal prosecutions of simple drinking and driving charges are down by about 85%. Where there are aggravating factors, a high roadside breath test reading, a prior record of administrative suspensions or criminal convictions, driving while disqualified, or any injury to persons or property, the criminal process should be invoked and sanctions increased. Apparently even MADD Canada is in favour of the B.C. model and has been lobbying the Ontario government to implement it. Now that driving while impaired by marijuana is being added to the Code, a rethink on how enforcement is to be made effective without swamping the criminal courts is imperative.

3. Give the Chief Justice of the provincial courts direct access to the Court of Appeal by enacting a power to “state a case.” Prior to the mid-1990s, Ontario judges had statutory authority to put a factual case to the Court of Appeal for an expedited decision on a legal issue. That power was taken away, a change which in my view has proven dysfunctional. New laws come first to lower trial court judges who have a duty to apply them to the fact situations before them. Sometimes those fact situations are clear and uncontested. The only issue is whether the fact situation involves a breach of the Charter, or some narrow legal issue which needs a definitive resolution by the highest court authority, as speedily as possible.

I had such a case in 2000. It was a simple police stop on the street, a conversation between two officers and a young man, a delay while the police did a computer check on his identity, and then an arrest on unrelated charges. When the charges came before me for trial, both counsel agreed on the facts and the only issue was whether or not the stop amounted to “a detention” which had Charter consequences. As a lower court decision, my written judgment, although published in the national criminal reports and argued repeatedly, had no value as a precedent within the hierarchical structure of our court system. But my case crystallized the issue as a systemic matter. With no power to state a case for an expedited definitive decision from the Ontario Court of Appeal, the issue of what constitutes a detention on the street churned around the lower courts until finally, nine years later, the Supreme Court of Canada decided the issue. Nine years is a long time. Too long.

That case had to do with detention on the streets. There were other issues: whether a new drinking and driving law had retrospective application to cases currently before the courts? whether the crown had a Charter duty to disclose repair records of Intoxilyzer machines? Both technical legal issues which, in my view, caused what I can only consider constipation in the lower courts. The enema of an expedited Court of Appeal decision was needed. 

The existing criminal appellate process in Canada proceeds in a non-systemic, random manner, totally dependent on whether the crown or a defendant has any interest in an appeal. For many pragmatic reasons, neither may want to appeal a particular case, and the issue churns on, wasting endless hours of redundant argument in the lower trial courts. This ad hoc, leisurely and languid appeal process contributes considerably to delay in the courts. If speedy justice is in the public interest, then the Chief Justice of the provincial court has a systemic interest in cutting through the verbiage and getting some authoritative direction on these types of issues on an expedited basis. For this reason, the Chief Justice should be able to “state a case” for a definitive decision from the Court of Appeal. The faster the provincial Courts of Appeal deal with the issues, the faster they will reach the Supreme Court of Canada if necessary, and the faster the lower courts will know how to deal with the trials before them. What’s the downside?

This post was also re-published on my other blog, Re-view From the Bench, on 20 April 2017.

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A Response to Sean Fine and the Supreme Court of Canada on “Justice Delays”

It was gratifying to read Sean Fine’s overview of how Canada’s criminal “Courts [are] shaken by search for solutions to delays” in Saturday’s Globe and Mail. In an intelligent and engaging analysis, he set out the essential message of last July’s Supreme Court of Canada 5:4 decision in R. v. Jordan: that criminal charges are to be tried within 18 months in provincial courts, and within 30 months in Superior Courts, and delays beyond those time periods shall be presumed to be unreasonable. He described the differences of opinion between the different Supreme Court justices, the reaction of the criminal justice system across the country to the new timelines, and the context of this particular decision over time. I commend his report to you.

This is not the first such crisis in the criminal courts. In R. v. Askov (1990), when the Supreme Court also defined what constituted “a reasonable time to trial,” the Ontario crown withdrew thousands of charges because of obvious delay, and thousands more came before the courts when accused persons made their own applications for a stay because of delay. In Ontario, I was one of 36 new judges, and at least two dozen new crown attorneys, appointed by the provincial government to help deal with the existing backlog in the criminal courts, and avoid the situation from recurring. Over 25 years later, Jordan is another SCC decision on the same subject, and another “kick in the pants” from the Supreme Court to all the courts across the country bound to apply their ruling. Equally if not more important, the Supreme Court decision is a clarion call to the federal government responsible for defining the criminal law and to the provincial governments charged with the administration of criminal justice. The Supremes are saying that delay in criminal courts must become a priority.

Sean Fine points out that the Supreme Court agreed on the facts of the particular case before them (that 49.5 months to trial on a charge of possession for the purpose of trafficking is unreasonable), but disagreed on almost everything else. In the fall-out from Jordan, all sorts of questions are being discussed. Some say there is a need to change “a culture of complacency” which exists in the court system; others deny that any complacency exists. Do away with preliminary hearings, implement a triage system, divert less important cases out of the system, require crown attorneys to lay charges and not the police, inject more resources into the system, speed up appointing judges; all are bandied about as obvious “solutions” to the problem.

Finding enduring solutions, however, requires appropriate empirical data about the different ways the system is actually working across each province and across the country. As Professor of Criminology Tony Doob noted in a recent Globe and Mail article with respect to preliminary hearings, such data is non-existent.

Throughout my 20 years on the Ontario Court of Justice, the 1990 Askov “kick in the pants” was a continuing incentive to reform within the Ontario criminal court system. The provincial government appointed more judges and crowns; the provincial bench became more diversified. In 1991, the Supremes mandated full disclosure of the crown’s case to the defence. For a variety of systemic reasons, making that aspiration real took more time and effort than would ever have been anticipated, and still sometimes falls short in particular cases. Thousands of charges were downloaded from the Superior Courts to the provincial courts, eliminating the possibility of a preliminary hearing and inherently ensuring a more speedy trial. This was done by the simple statutory expedient of “supersizing” the possible penalties available for “hybrid” charges (such as assault and sexual assault) where the crown can elect to proceed by summary conviction.

Numerous practices were attempted to reduce delay. We tried two tiers of courts: one in the morning and another in the afternoon; that didn’t work. Special plea courts with judges known to be lenient on sentencing were set up; that helped. Plea courts for early resolution of cases are now the norm. We implemented an intake cycle system where a single judge and crown took ownership of blocks of cases coming into the system with the expectation that they would be resolved or adjudicated within four months. That system was abandoned after several years without any formal outside evaluation. The administration monitored “time to trial” statistics and, routinely, assigned temporary judges to run “blitz courts” to clear local backlogs of cases in overworked or understaffed courts. “Shadow courts” were established with “shadow” dockets of cases which were fed into the trial courts offering help after their regularly assigned cases were completed. Experienced crowns were placed into intake courts to “take ownership” of cases, encourage early resolutions and ensure that multiple adjournments did not bog down the set date process.

Numerous task forces and commissions (both local and province-wide) were set up and recommendations made for changes in practices: early vetting of cases by experienced crowns, early resolution discussions, diversion of simple cases out of the system and to special programs, mandatory judicial pretrials to narrow the issues and encourage resolutions, rules requiring notice about witnesses and issues to be addressed on prelims, prelims moved out of courtrooms and witnesses examined on the record without a judge being present, special training and procedures for complex cases and for dealing with unrepresented accused, the use of trial coordinators to set dates outside of court, specialized crowns handling specialized courts with specialized procedures (e.g.: domestic courts, courts for children, drug courts, mental health courts, courts for Indigenous people), dealing with impaired driving administratively rather than through the courts.

There has been no shortage of problems identified nor recommendations made about how the system could be improved. The problem has been making reforms happen, and the systemic failure to evaluate the effects.

The criminal justice system, like the health care system, is a very complex institution with multiple ever-changing stakeholders, little routine outside evaluation, and, in my time, a woeful lack of institutional memory. The federal government defines the criminal law but it is not responsible for the administration of justice. Our constitution makes provinces responsible for the operation of the courts. The actions of one affect the other, and vice-versa. One obvious example: When the federal government cut its financial contribution to the Ontario Legal Aid Plan, the number of defendants able to obtain counsel through Legal Aid went down, and the number of accused persons representing themselves went up. Without counsel, there were fewer pre-trial resolutions and the time taken for trial, even for simple matters, increased. What else would one expect? Defence counsel are essential players in the system. Apart from the detriment to individual rights, cutting them back removed the grease that makes the legal system work.

Don’t get me started…. It’s a big issue. How the time limitations imposed by the Supreme Court of Canada will withstand the reality of fact situations coming before Canadian courts in the immediate future, only time will tell. Maybe, as in 1991, the jurisprudence will become nuanced. In my view, it is a very good thing that the Supreme Court has put on the pressure to make “speedy justice” a priority. We’re finally talking about delay, the real issue which has faced our courts for decades. Maybe this time, there will be a major rethink.

This post was also re-published on my other blog, Re-view From the Bench, on 14 March 2017.

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