Tagged: Reviewfromthebench.ca

A Mid-Summer Review of Current Issues

Senate Abolition or Reform

Now all three major political parties have a position on the Senate. The NDP wants to take the steps necessary for abolition. The Liberals want an improved quality of “eminent” Senators chosen by an independent body. Stephen Harper has declared that he will continue his now official policy of not appointing any more senators, “to save money” and “to pressure the provinces into coming to the table for reform.” Talk of a future referendum on abolition or reform of the Senate is now widespread. For what it’s worth, I think Harper’s policy of non-appointing senators is unconstitutional and would likely be overturned by the Supreme Court of Canada if it were put to the court on a reference. In my view, it is yet another example of Harper’s persistent putting himself and his policies above the law. Given his track record of unilateralism on every issue, what credibility has he got as a “leader with the provinces” in seeking a consensus for real reform? 

Canada Post Community Mailboxes

Last spring, the City of Hamilton passed a by-law requiring Canada Post to get a permit from the City for the location of their proposed community post boxes, and to pay a permit fee of $200 per box. The City went to the Ontario Superior Court seeking an injunction against Canada Post from installing any further boxes until the court decided the issue. Canada Post challenged the constitutional authority of the municipality to pass their by-law. The issue was: who had the right to control the location of mailboxes used to carry out the federally mandated postal delivery? Justice Alan Whitten found that was within the core power of the federal government, as given to Canada Post, and that Hamilton’s by-law was “inapplicable and inoperative.” The City of Hamilton has now appealed. I will report on the appeal decision once it is heard. 

In the meantime, Canada Post has announced that door-to-door mail delivery would continue in “the core” of downtown Toronto (the heart of the business community). That “core” will end at Bathurst Street and not extend west into my neighbourhood. Toronto councillors took the matter to the Canadian Federation of Municipalities in June for a national response. Now that the practical implications of ending door-to-door mail delivery have become more clear, the one-size-fits-all policy of Canada Post has become a hot-button political issue.

The “Politicization” of Federal Judicial Appointments?

Sean Fine’s fine in-depth analysis of the federal government’s judicial appointment process published in the Globe and Mail on July 25th, entitled “Stephen Harper’s Courts,” and the follow up articles which have appeared through the week, should be required reading for all citizens interested in the justice system. The federal appointment process has always been of concern but, according to Fine, the Harper government has made it worse. The increasing concern about “politics supplanting merit” is a response to the recent appointments of Justices Bradley Miller and Grant Huscroft to the Ontario Court of Appeal. Both are proponents of “Originalism,” the right-wing American legal theory of constitutional analysis championed on the American Supreme Court by Justices Antonin Scalia and Clarence Thomas, and outside the mainstream of Canadian legal jurisprudence. The surprise appointment last week of Alberta Justice Russell Brown to the Supreme Court of Canada has added to the concern. He has called himself “a conservative libertarian” and has but two years of judicial experience. The Globe and Mail headline today tells it all: [Justice Minister Peter] “MacKay declines to explain court pick.” Wasn’t it Stephen Harper who once campaigned on the need for Parliamentary review of Supreme Court appointments? That was then; this is now.

My First “Official Publication”

I was delighted to open the Globe and Mail this morning and find published a Letter to the Editor I’d written. A comment on “Judge’s Powers,” it follows up on an analysis of the Carter decision which I wrote in a March post, on Re-view from the Bench, relating to speedy Supreme Court decisions. You can read the letter yourself on the Globe and Mail Letters to the Editor webpage for July 30th. Thanks to Malcolm Metcalfe for providing me with the link. Not a bad way to recharge my batteries after a lengthy lay-off.

Hope everyone is enjoying a good summer.

back to top


Why the Supreme Court’s Carter Decision was so speedy

The Supreme Court of Canada released their decision in Carter v. Canada (Attorney General) in record time. Read my analysis of why in Carter #2: A Template for Future Charter Litigation, posted on reviewfromthebench.ca.

If you are an Effervescent Bubble reader who wants email notice of new posts about legal issues, the courts and the legal system, please visit my legal blog and, in the sidebar on the right hand side, take the steps to “follow” that blog. Thank you.

back to top


Effervescent Bubble Gone Viral

Guess what? Last week, the most amazing thing happened. Someone who read my post, “The Tall and the Short of It,” published January 13, 2015, took umbrage. What was meant as a light-hearted commentary on evolving social mores about heightism apparently struck a nerve. He quoted part of my piece, dumping all over it, and in the process posted the link on reddit.com. That provoked interest on Reddit, initiated a further discussion and, in days, my post “went viral” – by my standards. Everything is relative of course. But within three days I had over 500 views of that post, and they continue daily. From all over the world: mostly the United States but also Canada, the United Kingdom, Australia, Germany, Mexico, Brazil, and other countries in Europe and the Middle East.

I have since learned that reddit.com is a gigantic social media and news website where registered members of the Reddit community can post content of their choosing, subject to certain specified standards. Based in San Francisco, California, Reddit was founded in 2005, acquired by Condé Nast Publications in 2006, and is now operated as an independent entity with Condé as one of the leading shareholders. It is said to be “one of the largest communities on the internet,” characterized by its wide-ranging subject matter and its network of subreddits which attract the interest of particular niche readers. According to Wikipedia, one of its most popular subreddits is Today I Learn (TIL) which, as of November 23, 2014, had over seven million subscribers. Its participants post something that they learned recently, which obviously has wide interest. According to a Google survey done in May 2013, Reddit users were 68% from the United States, 59% male, generally 18-29 years of age, but with a wider audience from around the world. Reddit is big. Really big.

Clearly my blog is not directed to this demographic. And few, if any, of those who viewed that particular post will likely follow my blog. Why would they? What I normally write about is of no interest to them. I only tell the story to show the power of social media and of these internet social and news aggregators. When links are posted on Facebook, Twitter, reddit.com, and all the other social networks out there, contemporary technology makes them available to the world at large. Such that even an obscure old writer like me can have a huge audience of unknown readers, even if only for one piece intended to be light-hearted. The more that particular topics I write about (e.g.: dog sharing, visiting Vancouver, river rafting, musical soirées, or municipal politics) appeal to special interest audiences, the greater the traffic that may come to my blog. Put them together and, before long, the blog takes off. We are a long way from that stage at the moment, but now I see how it can happen.

All of which is a prelude to my answering a question put to me this week by a reader. He wants to know why the need for a second, legal, blog. Since I write about legal subjects from time to time in Effervescent Bubble, why another? A fair question.

First, Effervescent Bubble is eclectic, and reflects my enthusiasms. The very name connotes energy and (hopefully) luminosity, frothy and forthcoming, but also ephemeral and passing. Fifty years ago (is it really fifty years??????), when I was a don at the University of British Columbia, one of the students called me “an effervescent bubble.” I always considered it an insult. Friends convinced me otherwise and they were right. Writing Effervescent Bubble suits my personality. I love it. It channels my curiosity, gives me an excuse to talk with anyone about anything (which I genuinely like to do), and necessitates regular writing. It is fun, and becomes easier the more I do it.

Writing about law and the criminal justice system is more difficult. People who have been legally trained (even if not practicing lawyers) know the lingo of the discipline, its underlying concepts and context. They talk among themselves in legalese, write articles in learned journals and decisions in judgments, and are readily understood. Talking law, or writing law, for lay people is a totally different ballgame. Lay people may want to understand the legal scene but explaining it in a fashion that is meaningful is not easy. The hardest posts I have written yet have been the few I wrote analyzing legal decisions.

I want to write about legal issues arising in the criminal court context. If I am going to do that, I need to write about law more often. By having a dedicated legal blog, I hope to turn my Effervescent Bubble eye to the criminal justice scene, find issues that may be of interest to lay readers, and try to write in a fashion that is accessible. I am hoping that, like Effervescent Bubble, the more I write, the easier it will become.

I have also learned that blogs dedicated to a specific topic generally attract more interest. The lingo is “traffic.” Effervescent Bubble appeals because it is eclectic and whimsical. The brand, however, doesn’t suit legal issues which, necessarily, are somewhat weighty and are anything but “effervescent.” My focus will be on the criminal courts and how they work. That stretches from the provincial courts, where I sat for 20 years, to the Supreme Court of Canada. They are all part of the criminal court system, broadly defined. Although my audience is lay people, I also hope that some law types will read the legal blog and perhaps add their insight to the discussion. Some may agree with what I say; others may think I have my head wedged. Others may be able to give examples which support or detract from my point. If the blog provokes some discussion, all the better.

And so another experiment begins. Check out reviewfromthebench.ca and let me know what you think. Shortly, I will start a series of posts on the Supreme Court of Canada’s decision in Carter (the assisted death case), released last Friday. I will not be discussing the substantive issue upon which reasonable people differ. My focus will be on what the decision shows us about the legal system and how it works. You are the audience for the legal blog, as much as for Effervescent Bubble. I appreciate whatever feedback you want to give.

back to top