OTTAWA — As federal political parties gear up for a possible spring election, a new poll has found that while Prime Minister Stephen Harper’s governing Conservatives remain ahead of their rivals in public favour, they have lost momentum in recent weeks.
The national survey by Ipsos Reid — conducted exclusively for Postmedia News and Global TV — comes amid a torrent of political jockeying in recent days; as MPs returned to Parliament, some parties aired political attack ads and the leaders argued over the merits of corporate tax cuts.
The poll, conducted from Jan. 20 to Feb. 2, found the Conservatives are supported by 34 per cent of decided voters — down five points from another Ipsos Reid survey in early December. By comparison, Michael Ignatieff’s Liberals remain at 29 per cent of the decided vote — a spot where they have stayed frozen since last September.
The NDP, led by Jack Layton, would garner 16 per cent of the vote — up by four points since the poll two months ago.
This turnaround comes as good news for Layton, who was plagued by internal party turmoil last fall over issues such as the gun registry.
Gilles Duceppe’s Bloc Quebecois has 11 per cent of the vote nationally, but within its own province, the party has a commanding lead.
The Green party, led by Elizabeth May, would receive 10 per cent of the vote — up by one point.
Across Canada’s regions, however, it’s a mixed bag for the parties.
The Liberals have regained a slight lead in seat-rich Ontario, where they are trying to prevent electoral gains by the Tories — most notably in Toronto.
In Quebec, with the Bloc so far ahead, the federalist parties are splitting the vote fairly evenly.
In the West, while the Tories remain comfortably ahead, they are beginning to lose support in their bastion of Alberta, with votes also trickling away in Saskatchewan and Manitoba. On the other hand, in Atlantic Canada, the Conservatives have now have taken the lead away from the Liberals.
Ipsos Reid President Darrell Bricker said Thursday that the new poll shows a return to Canadians’ voting intentions that were locked in a stagnant pattern.
“If you thought that the Tories were on a roll, it was a will-o-the-wisp,”said Bricker. “What these numbers show is that whenever an election comes our way, it’s is going to be a tough-fought battle.”
Instead of resembling a “Napoleonic” battle, Bricker said the campaign will consist of “little skirmishes across the country” — noting the Tories stand to gain or lose a couple of seats near Quebec City, while some seats are “up for grabs” in B.C.’s Lower Mainland.
“But where’s the battleground? Take your car, drive down Highway 401 all the way from Ottawa to Windsor. That’s where it is. You fight the campaign on a bus,” he said, referring to the ridings in central Ontario.
The poll suggests that Harper’s Tories may have been benefiting from a pre-Christmas sense among voters that things were going well, and they may have been left with an “edgy taste” in more recent weeks as the political debate ramped up, Bricker said.
The political gamesmanship grew more intense in January.
Harper said he wants to focus on governing and avoid an election, but his party aired attack ads that question the character of the other political leaders.
Ignatieff and Layton launched public-speaking tours outlining their demands for what should be in the next budget, with the Liberals also firing back with their own ads attacking the government’s position on corporate tax cuts and military fighter jets.
The Bloc said it won’t support the government unless it provides billions of dollars for Quebec.
Meanwhile, the budget will be tabled in March and if all three opposition parties vote against it, Canadians will head to the polls in the spring.
Bricker said the two main rivals are “plagued” with problems that won’t disappear: The Tories are led by a prime minister given credit by voters for solid economic management, but whose personality still hasn’t won over more supporters. And they can’t crack the 40-per-cent support level, which is seen as necessary for winning a majority government.
The Liberals, meantime, can’t crack the 30-per-cent threshold and are led by someone who simply hasn’t caught on with the electorate, said Bricker.
“As long as the players stay the same, the issues stay the same, the results will be the same. All of them are plagued by this.”
The poll finds that in Ontario, the Liberals have pulled ahead with 40 per cent, compared to 36 per cent for the Tories, 15 per cent for the NDP and eight per cent for the Green party.
In Quebec, the Bloc is supported by 42 per cent of decided voters, with the Liberals at 16 per cent, the Tories at 15 per cent, the NDP at 14 per cent, and the Green party at 12 per cent.
In B.C., the Tories have 42 per cent of the vote, compared to 25 per cent for the Liberals, 17 per cent for the NDP and 15 per cent for the Green party.
In Alberta, the Tories hold 56 per cent, while the Liberals have 22 per cent, the NDP have 11 per cent and the Green party has eight per cent.
In Saskatchewan/Manitoba, the Tories are ahead at 42 per cent, while the Liberals have 30 per cent, the NDP has 19 per cent and the Green party has eight per cent.
In the Atlantic region, the Tories have pulled ahead with 38 per cent, followed by the Liberals at 34 per cent, the NDP at 22 per cent and the Green party at six per cent.
The poll was a telephone survey of 1,008 adult Canadians and its national results have a margin of error of 3.1 percentage points, 19 times out of 20.
The margin of error for the regional results are: B.C. (nine per cent); Alberta (9.8 per cent); Manitoba/Saskatchewan (12.1 per cent); Ontario (4.9 per cent); Quebec (6.2 per cent); Atlantic Canada (12.1 per cent).
Read more: http://news.nationalpost.com/2011/02/03/tories-losing-momentum-for-possible-vote-poll/#ixzz1Cy0QgPU9
Friday, February 4, 2011
Thursday, February 3, 2011
Canada’s top military police officer should request an investigation by the RCMP into allegations Canadians committed war crimes in Afghanistan, a human rights lawyer Paul Champ says.
Canada’s top military police officer should request an investigation by the RCMP into allegations Canadians committed war crimes in Afghanistan, a human rights lawyer says.
At the closing arguments of a hearing into complaints that Canada’s battlefield prisoners were abused when soldiers handed them to Afghan authorities in Kandahar, Amnesty International lawyer Paul Champ said military police charged with keeping Canada on the right side of international law were intimidated and marginalized by senior commanders into ignoring the torture allegations.
His recommendation Wednesday to the Military Police Complaints Commission, was that the Canadian Forces Provost Marshall ask the Royal Canadian Mounted Police to look into the long-standing allegations that Canadians were complicit in torture.
Champ said this is crucial to “restore public confidence” in the Canadian military.
The Canadian Forces have been fending off the complaints of human rights groups for years in parliamentary inquiries, the Federal Court of Canada and at the hearings of the military watchdog, which began over a year ago.
Both the Conservative government and numerous military commanders have argued that the absence of specific evidence of torture in Afghanistan prevented them from halting detainee handovers. On three occasions when there was credible evidence, the military said it halted transfers until conditions in Afghan prisons improved.
A government lawyer counselled commissioners hearing the complaint to stick to their narrow mandate of judging the action of eight military police officers who are the subject of the allegations.
“The true question before you is did all of these military police officers miss something? Was there evidence of the commission of a criminal offence before them,” Elizabeth Richards asked. “We say that the answer is overwhelmingly no.”
Champ said that military police officers have a responsibility to prosecute battlefield crimes as well as to prevent them and should have investigated the condition of detainees in Afghan custody based on the rampant rumours among deployed soldiers that conditions were poor and abuse was well known.
But he said testimony showed that military police were viewed as a “hindrance” in Kandahar and were marginalized by top Canadian commanders intent on carrying out the war against the Taliban and al-Qaeda.
There weren’t made aware of Foreign Affairs reports that detainees were alleging abuse and they weren’t keen to probe those allegations when they did come to light, Champ said.
“It seems the MPs themselves felt there were questions they shouldn’t ask. There were questions that were uncomfortable or inconvenient,” Champ said.
He even cited the testimony of Navy Capt. Sean Moore the Canadian Forces Provost Marshall at the time of the complaints saying that the extent of the detainee problem “crystalized” around February 2007.
Following that, Moore said he made discrete inquiries of his deployed counterparts and with former commanders who had complete their mission, but he never sought government reports on the matter, saying that it “would have been regarded as an intrusion by the chain of command.”
“In our submission, that’s not a good excuse,” said Champ. “Police officers are supposed to ask those uncomfortable questions.”
The human rights lawyer said testimony heard by the military police watchdog pointed to a “systemic problem” where the upholders of law and order on the battlefield didn’t feel sufficiently independent and were too deferential to their military superiors.
While military police, like their civilian counterparts, have “discretion” not to probe possible breaches of the law, that power is diminished when the most severe allegations arise.
Torture allegations “diminishes or eliminates” that discretion and military police officers should acted based on either hearsay from other soldiers around Kandahar Airfield, the notoriety of the Afghan secret police, or newspaper reports which featured interviews with Afghans who said they’d been picked up by Canadian soldiers and then abused by their Afghan jailors.
But military police were reluctant to second guess Canadian commanders who maintained that there was no direct evidence of torture, and so there was no need to either halt transfers or launch an investigation.
Champ said there was also a keen awareness that substantiating detainee abuse allegations would have been seen as a “strategic failure” for the Canadian Forces and would have undermined the military mission.
“The police officers here felt constrained by their role as members of the military,” he said.
The government’s closing arguments continue Wednesday afternoon.
At the closing arguments of a hearing into complaints that Canada’s battlefield prisoners were abused when soldiers handed them to Afghan authorities in Kandahar, Amnesty International lawyer Paul Champ said military police charged with keeping Canada on the right side of international law were intimidated and marginalized by senior commanders into ignoring the torture allegations.
His recommendation Wednesday to the Military Police Complaints Commission, was that the Canadian Forces Provost Marshall ask the Royal Canadian Mounted Police to look into the long-standing allegations that Canadians were complicit in torture.
Champ said this is crucial to “restore public confidence” in the Canadian military.
The Canadian Forces have been fending off the complaints of human rights groups for years in parliamentary inquiries, the Federal Court of Canada and at the hearings of the military watchdog, which began over a year ago.
Both the Conservative government and numerous military commanders have argued that the absence of specific evidence of torture in Afghanistan prevented them from halting detainee handovers. On three occasions when there was credible evidence, the military said it halted transfers until conditions in Afghan prisons improved.
A government lawyer counselled commissioners hearing the complaint to stick to their narrow mandate of judging the action of eight military police officers who are the subject of the allegations.
“The true question before you is did all of these military police officers miss something? Was there evidence of the commission of a criminal offence before them,” Elizabeth Richards asked. “We say that the answer is overwhelmingly no.”
Champ said that military police officers have a responsibility to prosecute battlefield crimes as well as to prevent them and should have investigated the condition of detainees in Afghan custody based on the rampant rumours among deployed soldiers that conditions were poor and abuse was well known.
But he said testimony showed that military police were viewed as a “hindrance” in Kandahar and were marginalized by top Canadian commanders intent on carrying out the war against the Taliban and al-Qaeda.
There weren’t made aware of Foreign Affairs reports that detainees were alleging abuse and they weren’t keen to probe those allegations when they did come to light, Champ said.
“It seems the MPs themselves felt there were questions they shouldn’t ask. There were questions that were uncomfortable or inconvenient,” Champ said.
He even cited the testimony of Navy Capt. Sean Moore the Canadian Forces Provost Marshall at the time of the complaints saying that the extent of the detainee problem “crystalized” around February 2007.
Following that, Moore said he made discrete inquiries of his deployed counterparts and with former commanders who had complete their mission, but he never sought government reports on the matter, saying that it “would have been regarded as an intrusion by the chain of command.”
“In our submission, that’s not a good excuse,” said Champ. “Police officers are supposed to ask those uncomfortable questions.”
The human rights lawyer said testimony heard by the military police watchdog pointed to a “systemic problem” where the upholders of law and order on the battlefield didn’t feel sufficiently independent and were too deferential to their military superiors.
While military police, like their civilian counterparts, have “discretion” not to probe possible breaches of the law, that power is diminished when the most severe allegations arise.
Torture allegations “diminishes or eliminates” that discretion and military police officers should acted based on either hearsay from other soldiers around Kandahar Airfield, the notoriety of the Afghan secret police, or newspaper reports which featured interviews with Afghans who said they’d been picked up by Canadian soldiers and then abused by their Afghan jailors.
But military police were reluctant to second guess Canadian commanders who maintained that there was no direct evidence of torture, and so there was no need to either halt transfers or launch an investigation.
Champ said there was also a keen awareness that substantiating detainee abuse allegations would have been seen as a “strategic failure” for the Canadian Forces and would have undermined the military mission.
“The police officers here felt constrained by their role as members of the military,” he said.
The government’s closing arguments continue Wednesday afternoon.
Wednesday, February 2, 2011
Transport Canada has given up its fight to be shielded from a lawsuit filed by widows of a deadly helicopter crash: Transport Canada now has liability in cases involving possible negligence of its inspectors or any government inspectors.
The government has given up its fight to be shielded from a lawsuit filed by widows of a deadly helicopter crash — a move some say is a blow to Ottawa's efforts to minimize its liability in cases involving possible negligence of government inspectors.
Transport Canada confirmed Monday the government is not appealing a decision of the B.C. Supreme Court, which ruled in December that the department can be found liable, in certain circumstances, to the public when it exercises its regulatory powers in a negligent way.
The Crown had argued that there was no cause of action against the government in this case because Ottawa cannot be sued for regulatory negligence in certain instances. The case involves Transport Canada's relationship with the person who certified the helicopter as airworthy, despite an alleged checkered history as a maintenance engineer.
Although the specifics of this case involve Transport Canada, the principle of regulatory negligence and the government's duty of care can be applied to other departments charged with keeping the public safe by enforcing safety regulations.
"It started off as minister of transport motion to strike the claim against them as a matter of law. Their position was the Supreme Court of Canada in a couple of cases had changed the ground rules as to when the government could be found liable in negligence," Joe Fiorante, a partner at the Vancouver law firm Camp Fiorante Matthews, said in an interview Monday.
The B.C. Supreme Court rejected the government's "insufficient proximity" as part of its argument to minimize its regulatory exposure.
"The negligence alleged against Transport Canada is with respect to something over which it had direct control: the designation of maintenance personnel and organizations who are authorized to perform work on and certify aircraft," concluded B.C. Supreme Court Judge E.M. Myers.
The trial, set to proceed in May, will now proceed with the federal government as a defendant alongside Art Comeault, who repaired the helicopter and certified it as airworthy.
"Typically, the regulator is going to want to limit its liability. In making arguments like this, it's going to rely on cases that support that end result. I guess I'm not surprised," said Carlos Martins, a partner at the Toronto-based law firm of Bersenas Jacobsen Chouest Thomson Blackburn and a specialist in aviation regulations.
"It means in this case that the judge wasn't persuaded that Transport Canada was going to walk away from liability and the judge is going to allow the plaintiff to move forward with the allegation and will prove them or not prove them."
Transport Canada declined to comment on the case, saying it would be inappropriate for it to comment on legal action that the department is currently engaged in.
The case involves the circumstances that led to a deadly helicopter crash in Duncan, B.C., on Sept. 17, 2005. Robert Honour, 51, had purchased the helicopter a few months before the crash, and he was piloting the aircraft at the time of the crash. Les Chadwick, 29, who was his sole passenger at the time of the crash, also died.
Comeault, who was designated as an approved maintenance engineer by Transport Canada under the Canadian Aviation Regulations, repaired and certified the helicopter as airworthy through his company, A & L Aircraft Maintenance — also certified and licensed as an Approved Maintenance Organization.
The widows of the two deceased allege that the department owed a duty of care to remove Comeault from the position of a certified person responsible for maintenance — given Comeault's prior conviction for offences under the Aeronautics Act involving making false entries in a journal log with an intent to mislead. The regulations prohibit anyone with his prior conviction from acting as a person responsible for maintenance.
An earlier Transport Canada audit of A & L also found that the company was maintaining aircraft that were not in compliance with policy manuals and other required practices, the lawsuit alleges.
The Transportation Safety Board, which investigated the crash, has already determined that the helicopter was not serviced or maintained in accordance with existing regulations and, as a result, maintenance actions to correct serious engine-driven fuel pump defects were not completed.
The board also found that Transport Canada did not inspect the company performing maintenance on the helicopter within the specified three years — "resulting in a missed opportunity to learn that maintenance had not been performance in accordance with Canadian regulations."
Read more: http://www.canada.com/news/Government+yields+fight+shielded+from+chopper+crash+suit/4198892/story.html#ixzz1CmJzJRf0
Transport Canada confirmed Monday the government is not appealing a decision of the B.C. Supreme Court, which ruled in December that the department can be found liable, in certain circumstances, to the public when it exercises its regulatory powers in a negligent way.
The Crown had argued that there was no cause of action against the government in this case because Ottawa cannot be sued for regulatory negligence in certain instances. The case involves Transport Canada's relationship with the person who certified the helicopter as airworthy, despite an alleged checkered history as a maintenance engineer.
Although the specifics of this case involve Transport Canada, the principle of regulatory negligence and the government's duty of care can be applied to other departments charged with keeping the public safe by enforcing safety regulations.
"It started off as minister of transport motion to strike the claim against them as a matter of law. Their position was the Supreme Court of Canada in a couple of cases had changed the ground rules as to when the government could be found liable in negligence," Joe Fiorante, a partner at the Vancouver law firm Camp Fiorante Matthews, said in an interview Monday.
The B.C. Supreme Court rejected the government's "insufficient proximity" as part of its argument to minimize its regulatory exposure.
"The negligence alleged against Transport Canada is with respect to something over which it had direct control: the designation of maintenance personnel and organizations who are authorized to perform work on and certify aircraft," concluded B.C. Supreme Court Judge E.M. Myers.
The trial, set to proceed in May, will now proceed with the federal government as a defendant alongside Art Comeault, who repaired the helicopter and certified it as airworthy.
"Typically, the regulator is going to want to limit its liability. In making arguments like this, it's going to rely on cases that support that end result. I guess I'm not surprised," said Carlos Martins, a partner at the Toronto-based law firm of Bersenas Jacobsen Chouest Thomson Blackburn and a specialist in aviation regulations.
"It means in this case that the judge wasn't persuaded that Transport Canada was going to walk away from liability and the judge is going to allow the plaintiff to move forward with the allegation and will prove them or not prove them."
Transport Canada declined to comment on the case, saying it would be inappropriate for it to comment on legal action that the department is currently engaged in.
The case involves the circumstances that led to a deadly helicopter crash in Duncan, B.C., on Sept. 17, 2005. Robert Honour, 51, had purchased the helicopter a few months before the crash, and he was piloting the aircraft at the time of the crash. Les Chadwick, 29, who was his sole passenger at the time of the crash, also died.
Comeault, who was designated as an approved maintenance engineer by Transport Canada under the Canadian Aviation Regulations, repaired and certified the helicopter as airworthy through his company, A & L Aircraft Maintenance — also certified and licensed as an Approved Maintenance Organization.
The widows of the two deceased allege that the department owed a duty of care to remove Comeault from the position of a certified person responsible for maintenance — given Comeault's prior conviction for offences under the Aeronautics Act involving making false entries in a journal log with an intent to mislead. The regulations prohibit anyone with his prior conviction from acting as a person responsible for maintenance.
An earlier Transport Canada audit of A & L also found that the company was maintaining aircraft that were not in compliance with policy manuals and other required practices, the lawsuit alleges.
The Transportation Safety Board, which investigated the crash, has already determined that the helicopter was not serviced or maintained in accordance with existing regulations and, as a result, maintenance actions to correct serious engine-driven fuel pump defects were not completed.
The board also found that Transport Canada did not inspect the company performing maintenance on the helicopter within the specified three years — "resulting in a missed opportunity to learn that maintenance had not been performance in accordance with Canadian regulations."
Read more: http://www.canada.com/news/Government+yields+fight+shielded+from+chopper+crash+suit/4198892/story.html#ixzz1CmJzJRf0
Tuesday, February 1, 2011
Mother and girls are trying to become refugees in Canada to avoid genital mutilation
Nigerian family struggles to protect daughters from painful African tradition
Mother and girls are trying to become refugees in Canada to avoid genital mutilation
A Metro Vancouver mother is waging a legal battle to keep her three daughters in Canada to protect them from the controversial tradition of female genital circumcision in their native Nigeria.
The family has lost one legal skirmish but won a second, and is now preparing for a hearing before the Immigration and Refugee Board (IRB) to find out if the mother and daughters -- now aged eight, 14 and 16 -- can remain in Canada.
Their incredible journey is spelled out in documents, at the Federal Court of Canada, that tell a tale as inspirational as it is heartbreaking.
Both Naomi Koin and her husband come from tribes in Nigeria that continue to circumcise young girls -- a practice that includes the partial or complete removal of external genitalia.
Koin became a Christian in 1986 and in 1993 married Rotimi, also a Christian.
( The Sun agreed not to publish Rotimi's last name to protect the privacy of his and Koin's daughters. The couple declined to be interviewed for this story, saying they did not want to speak publicly until the IRB has made its final ruling in this case.)
The couple are united in their opposition to female circumcision, which the United Nations has criticized "as a form of persecution."
But Rotimi's relatives remain committed to the practice, and, according to Koin, continued to "harass the family and threaten them" to try to get the three girls to undergo the procedure.
"As my daughters grew older, the efforts and desires of my late father-in-law to force them to be circumcised intensified. The in-laws would appear at my home, yell from the outside, calling me names and insulting me," she said in court documents.
Koin could not, she argued, just move from Lagos to another area in Nigeria to escape her in-laws because she had a public career: She hosted a weekly Christian talk show and children's program on TV, recorded religious music CDs, and was an actress in a soap opera.
Rotimi, now 50, had moved to the United States in 1999 -- where he is a pastor in Houston -- to try to establish a life that would allow him to get his wife and children out of Nigeria.
Koin tried three times to obtain visitor visas to join her husband in the U.S., but was turned down.
She received visitor visas for London, England, where she has relatives, and flew there in 2005 and 2006, but was told by a British lawyer the immigration process would take years and she would not be able to work during that time.
In July 2007, she was granted a visitor visa for Canada, and made plans to move here in September of that year.
That August, the family had its last confrontation with Rotimi's relatives, which occurred while Koin was at work and her three daughters were at home, momentarily left alone by their maternal uncle.
The eldest daughter relayed to the IRB what happened: "My Dad's relatives told me that my Mummy had given permission for me and my two sisters to go on holidays to their village; they wanted us to pack our bags and go spend some time with them. Because my Mum had given an instruction earlier never to leave the house without speaking to her, I went into the bedroom, called my Mum, told her everything, and she told me not to go anywhere."
When Koin arrived home, the daughter said she could hear her mother and her father's relatives "yelling at each other really loudly. I felt really scared."
Some of Koin's fierce opposition to this practice must surely come from her own horrific experience of being circumcised at 12, as part of a public ritual that included no anesthesia to dull the excruciating pain.
"I screamed and cried inconsolably until I had no more strength. I bled profusely and almost fainted. I was in shock and could not believe that my mother had allowed this to happen to me," Koin recalled.
"To this day, I still endure the negative psychological trauma of that experience."
The family settled in Metro Vancouver in the fall of 2007 and made a Canadian refugee protection claim in 2008.
However, the IRB denied the claim in March, ruling there wasn't enough proof the girls would be forced to undergo circumcision if returned to Nigeria and that the family had not been subjected to persecution.
Koin's lawyer appealed to the Federal Court, and in November Justice Russel Zinn ruled the IRB's decision was "seriously flawed" and ordered it to reconsider the application.
Zinn added: "Given that the in-laws want to force the young girls to undergo a painful and dangerous procedure with severe and well-documented negative physical and psychological ramifications, the Board's finding that 'there is no evidence to suggest that the in-laws' threats amounted to anything' is unreasonable."
The IRB has not yet scheduled a date for a new refugee hearing for the family, but a spokeswoman said such files are given priority when they are referred back by the Federal Court.
The pastor of the family's church wrote a supportive letter to the IRB, saying Koin is a talented gospel singer and that she and her daughters "are a responsible and loving family."
Perhaps the most straightforward argument in this long legal drama, though, comes from Koin's 14-year-old daughter, who simply told the IRB:
"I understand that circumcision means that I would have to be cut in my private parts. I am really afraid of being circumcised in Nigeria and I do not want to do it."
---
A RITUAL OF 'PERSECUTION'
According to the World Health Organization, Female Genital Mutilation (FGM) or circumcision:
- Includes procedures that intentionally alter or injure female genital organs for nonmedical reasons.
- Has no health benefits for girls and women.
- Can cause severe bleeding and problems urinating, and later, potential childbirth complications and newborn deaths.
- Is mostly carried out on young girls sometime between infancy and age 15 years.
- Is internationally recognized as a violation of the human rights of girls and women.
The practice is most common in the western, eastern, and northeastern regions of Africa, in some countries in Asia and the Middle East, and among certain immigrant communities in North America and Europe.
An estimated 100 to 140 million girls and women worldwide are living with the consequences of FGM. In Africa, an estimated 92 million girls from 10 years of age and above have undergone FGM. The practice continues due to a mix of cultural, religious and social factors:
- The social pressure to conform to what others do and have been doing for generations.
- It is often considered a necessary part of raising a girl properly, and a way to prepare her for adulthood and marriage.
- It is often motivated by beliefs about what is considered proper sexual behaviour, linking procedures to premarital virginity and marital fidelity.
- It is believed to reduce a woman's libido, and thereby is further believed to help her resist "illicit" sexual acts.
- It is associated with cultural ideals of femininity and modesty, which include the notion that girls are "clean" and "beautiful" after removal of body parts that are considered "male" or "unclean."
- Though no religious scripts prescribe the practice, practitioners often believe the practice has religious support.
Source: www.who. int/en/
Read more: http://www.vancouversun.com/health/Nigerian+family+struggles+protect+daughters+from+painful+African+tradition/4079172/story.html#ixzz1CgZvWQQ3
Mother and girls are trying to become refugees in Canada to avoid genital mutilation
A Metro Vancouver mother is waging a legal battle to keep her three daughters in Canada to protect them from the controversial tradition of female genital circumcision in their native Nigeria.
The family has lost one legal skirmish but won a second, and is now preparing for a hearing before the Immigration and Refugee Board (IRB) to find out if the mother and daughters -- now aged eight, 14 and 16 -- can remain in Canada.
Their incredible journey is spelled out in documents, at the Federal Court of Canada, that tell a tale as inspirational as it is heartbreaking.
Both Naomi Koin and her husband come from tribes in Nigeria that continue to circumcise young girls -- a practice that includes the partial or complete removal of external genitalia.
Koin became a Christian in 1986 and in 1993 married Rotimi, also a Christian.
( The Sun agreed not to publish Rotimi's last name to protect the privacy of his and Koin's daughters. The couple declined to be interviewed for this story, saying they did not want to speak publicly until the IRB has made its final ruling in this case.)
The couple are united in their opposition to female circumcision, which the United Nations has criticized "as a form of persecution."
But Rotimi's relatives remain committed to the practice, and, according to Koin, continued to "harass the family and threaten them" to try to get the three girls to undergo the procedure.
"As my daughters grew older, the efforts and desires of my late father-in-law to force them to be circumcised intensified. The in-laws would appear at my home, yell from the outside, calling me names and insulting me," she said in court documents.
Koin could not, she argued, just move from Lagos to another area in Nigeria to escape her in-laws because she had a public career: She hosted a weekly Christian talk show and children's program on TV, recorded religious music CDs, and was an actress in a soap opera.
Rotimi, now 50, had moved to the United States in 1999 -- where he is a pastor in Houston -- to try to establish a life that would allow him to get his wife and children out of Nigeria.
Koin tried three times to obtain visitor visas to join her husband in the U.S., but was turned down.
She received visitor visas for London, England, where she has relatives, and flew there in 2005 and 2006, but was told by a British lawyer the immigration process would take years and she would not be able to work during that time.
In July 2007, she was granted a visitor visa for Canada, and made plans to move here in September of that year.
That August, the family had its last confrontation with Rotimi's relatives, which occurred while Koin was at work and her three daughters were at home, momentarily left alone by their maternal uncle.
The eldest daughter relayed to the IRB what happened: "My Dad's relatives told me that my Mummy had given permission for me and my two sisters to go on holidays to their village; they wanted us to pack our bags and go spend some time with them. Because my Mum had given an instruction earlier never to leave the house without speaking to her, I went into the bedroom, called my Mum, told her everything, and she told me not to go anywhere."
When Koin arrived home, the daughter said she could hear her mother and her father's relatives "yelling at each other really loudly. I felt really scared."
Some of Koin's fierce opposition to this practice must surely come from her own horrific experience of being circumcised at 12, as part of a public ritual that included no anesthesia to dull the excruciating pain.
"I screamed and cried inconsolably until I had no more strength. I bled profusely and almost fainted. I was in shock and could not believe that my mother had allowed this to happen to me," Koin recalled.
"To this day, I still endure the negative psychological trauma of that experience."
The family settled in Metro Vancouver in the fall of 2007 and made a Canadian refugee protection claim in 2008.
However, the IRB denied the claim in March, ruling there wasn't enough proof the girls would be forced to undergo circumcision if returned to Nigeria and that the family had not been subjected to persecution.
Koin's lawyer appealed to the Federal Court, and in November Justice Russel Zinn ruled the IRB's decision was "seriously flawed" and ordered it to reconsider the application.
Zinn added: "Given that the in-laws want to force the young girls to undergo a painful and dangerous procedure with severe and well-documented negative physical and psychological ramifications, the Board's finding that 'there is no evidence to suggest that the in-laws' threats amounted to anything' is unreasonable."
The IRB has not yet scheduled a date for a new refugee hearing for the family, but a spokeswoman said such files are given priority when they are referred back by the Federal Court.
The pastor of the family's church wrote a supportive letter to the IRB, saying Koin is a talented gospel singer and that she and her daughters "are a responsible and loving family."
Perhaps the most straightforward argument in this long legal drama, though, comes from Koin's 14-year-old daughter, who simply told the IRB:
"I understand that circumcision means that I would have to be cut in my private parts. I am really afraid of being circumcised in Nigeria and I do not want to do it."
---
A RITUAL OF 'PERSECUTION'
According to the World Health Organization, Female Genital Mutilation (FGM) or circumcision:
- Includes procedures that intentionally alter or injure female genital organs for nonmedical reasons.
- Has no health benefits for girls and women.
- Can cause severe bleeding and problems urinating, and later, potential childbirth complications and newborn deaths.
- Is mostly carried out on young girls sometime between infancy and age 15 years.
- Is internationally recognized as a violation of the human rights of girls and women.
The practice is most common in the western, eastern, and northeastern regions of Africa, in some countries in Asia and the Middle East, and among certain immigrant communities in North America and Europe.
An estimated 100 to 140 million girls and women worldwide are living with the consequences of FGM. In Africa, an estimated 92 million girls from 10 years of age and above have undergone FGM. The practice continues due to a mix of cultural, religious and social factors:
- The social pressure to conform to what others do and have been doing for generations.
- It is often considered a necessary part of raising a girl properly, and a way to prepare her for adulthood and marriage.
- It is often motivated by beliefs about what is considered proper sexual behaviour, linking procedures to premarital virginity and marital fidelity.
- It is believed to reduce a woman's libido, and thereby is further believed to help her resist "illicit" sexual acts.
- It is associated with cultural ideals of femininity and modesty, which include the notion that girls are "clean" and "beautiful" after removal of body parts that are considered "male" or "unclean."
- Though no religious scripts prescribe the practice, practitioners often believe the practice has religious support.
Source: www.who. int/en/
Read more: http://www.vancouversun.com/health/Nigerian+family+struggles+protect+daughters+from+painful+African+tradition/4079172/story.html#ixzz1CgZvWQQ3
Sunday, January 30, 2011
Affaires étrangères et Commerce international Canada - Urgences en tout temps Contactez-nous.
our obtenir une aide d’urgence pendant les heures de bureau normales, contactez directement l’ambassade ou le consulat le plus proche. Vous pouvez aussi rejoindre le Centre des opérations d’urgence à Ottawa en tout temps aux coordonnées suivantes:
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• 613-996-8885 (à frais virés si ce service est offert dans le pays où vous vous trouvez) • Numéros sans frais dans certains pays | • 1-800-267-6788 • 613-944-6788 | |
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Lorsqu’une crise de grande envergure survient, il est possible que nous vous demandions de laisser un message. Veuillez suivre attentivement les instructions de la boîte vocale et un agent consulaire vous rappellera dans les 15 prochaines minutes.
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Pour obtenir de l’information sur les possibilités de partenariat avec le gouvernement du Canada pour promouvoir la sécurité en voyage :
Courriel : voyage@international.gc.ca
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Foreign Affairs and International Trade Canada... Emergencies 24/7
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For help with the Travel.gc.ca website
For help with the on-line Registration of Canadians Abroad (ROCA) service
Partners for safe travel
For information about partnering opportunities with the Government of Canada to promote safe travel:
E-mail: voyage@international.gc.ca
For emergency help during business hours, call your nearest embassy or consulate directly. Or you can contact our Emergency Operations Centre in Ottawa anytime at:
Telephone:
from outside Canada
from inside Canada
• 613-996-8885 (call collect where available)
• Toll free numbers available in some countries • 1-800-267-6788
• 613-944-6788
TTY:
• 613-944-1310
• 1-800-394-3472 (toll-free from the U.S. and Canada only)
E-mail:
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• or use our on-line form
During large-scale emergencies, you may be asked to leave a message. Please follow the instructions carefully and an operations officer will get back to you within 15 minutes.
Stolen or lost passport
If a passport is lost or stolen abroad, you must report it to:
•the nearest Canadian government office abroad, and
•local authorities.
General enquiries
Canadian government offices abroad
Headquarters in Canada
Consular Services
Foreign Affairs and International Trade Canada
125 Sussex Drive
Ottawa, ON. K1A 0G2
Telephone: • 1-800-267-6788 (toll-free from U.S. and Canada only)
• 613-944-6788
TTY:
• 1-800-394-3472 (toll-free from U.S. and Canada only)
• 613-944-1310
E-mail:
voyage@international.gc.ca
Technical help
For help with the Travel.gc.ca website
For help with the on-line Registration of Canadians Abroad (ROCA) service
Partners for safe travel
For information about partnering opportunities with the Government of Canada to promote safe travel:
E-mail: voyage@international.gc.ca
Saturday, January 29, 2011
The federal Conservatives have pulled controversial attack ads aimed at Liberal leader Michael Ignatieff from their website.
The federal Conservatives have pulled controversial attack ads aimed at Liberal leader Michael Ignatieff from their website.
The ads featured a clip of Ignatieff shouting, "Yes, yes, yes" in response to a question about whether he was seeking an early election and planning to raise taxes.
The ads — which were dropped from the Conservative website Friday after being up for less than 24 hours — were roundly attacked for pulling the Ignatieff quote from its proper context — a rhetorical question he posed in a speech about the Liberal party's willingness to fight for "the Canadian family."
Fred DeLorey, communications director for the Conservative party, defended the ads Thursday night, telling Parliament Hill CBC blogger Kady O'Malley the 15-second spots "are accurate and fair."
The Conservatives also said the ads were produced for web use only.
"It was a one day web posting. There was no media buy ever planned," said a senior Conservative official who did not want to be named.
Read more: http://www.canada.com/news/Conservatives+pull+controversial+attack/4187971/story.html#ixzz1CP4GhVcA
The ads featured a clip of Ignatieff shouting, "Yes, yes, yes" in response to a question about whether he was seeking an early election and planning to raise taxes.
The ads — which were dropped from the Conservative website Friday after being up for less than 24 hours — were roundly attacked for pulling the Ignatieff quote from its proper context — a rhetorical question he posed in a speech about the Liberal party's willingness to fight for "the Canadian family."
Fred DeLorey, communications director for the Conservative party, defended the ads Thursday night, telling Parliament Hill CBC blogger Kady O'Malley the 15-second spots "are accurate and fair."
The Conservatives also said the ads were produced for web use only.
"It was a one day web posting. There was no media buy ever planned," said a senior Conservative official who did not want to be named.
Read more: http://www.canada.com/news/Conservatives+pull+controversial+attack/4187971/story.html#ixzz1CP4GhVcA
Friday, January 28, 2011
All charges against the common law wife of a computer security expert involved in a G20 related case have been dropped. : Kristen Peterson visual artist
All charges against the common law wife of a computer security expert involved in a G20 related case have been dropped.
Kristen Peterson was charged with explosives and weapons possession a day after her common-law husband Byron Sonne was arrested at their Forest Hill home on June 22, 2010.
Sonne, who remains in jail, faces a number of charges — the most serious of which is possession of an explosive. He also faces charges of mischief and intimidating a justice system participant.
Peterson’s lawyer Brian Heller said that he appreciated the professionalism of the police and crown attorney’s office in dropping all the charges before a trial began, in an interview with the Star outside a courtroom in the Old City Hall Courthouse.
“For us the system worked,” Heller said to the Star.
The 37-year-old Peterson, however, has been free on bail since June 26. Her bail conditions originally included living with her parents, Maureen and John Peterson, and having no contact with Sonne except in the presence of lawyers. But in the fall, the terms of her bail were relaxed and she returned to her home.
Peterson, a visual artist, was charged with possession of the ingredients needed to make an explosive device and possession of a weapon “for a dangerous purpose.”
She and her husband lived in a million dollar home on Elderwood Dr. in Forest Hill, where the 37-year-old Sonne operated his computer security company, Halvdan — which means “half-Danish” — Solutions.
The couple has been together for at least a decade and refers to each other as husband and wife, according to some. But police described their relationship as common law.
The daughter of a Toronto executive, Peterson holds English literature and Master of Visual Studies degrees from the University of Toronto and a fine art diploma from the Toronto School of Art.
Her art career so far has focused on installation work or site specific drawings on buildings, according to one biography.
One of her first permanent installations was commissioned by the Toronto Transit Commission for the St. Clair West streetcar line and was to be unveiled last year.
“My goal is to explore the underpinnings of how we both create and perceive space,” Peterson writes on her webpage.
In 2006, she was the resident artist in the Spadina Museum’s Lynn Donoghue Artist in Residence Program that is run through the city culture program. A long-time Art Gallery of Ontario docent, Peterson used windows and mirrors inside the museum to reveal hidden areas of the building near Casa Loma.
Sonne came from a very different world. He is described as “slightly nerdy with a receding hairline.” In his spare time, he liked to hang out at HackLab TO, a non-profit group for techies who delight in building everything from LED signs to computer codes.
Well-respected in his field of computer security, Sonne had previously worked for top companies such as Circle Network Security and FSC Internet Corp.
For those who know Sonne, it is his tendency for mischief that may have landed him in hot water. In high school, Sonne reportedly planted a fake bomb that resulted in his school being evacuated, causing classmates to vote him “most likely to become an international terrorist” in their yearbook, according to a former schoolmate.
Those who now know Sonne say he is a good guy with strong ethics, the farthest thing from a scheming terrorist. With the entire city tense in the lead-up to the G20 summit, Julian Dunn wonders if security officials may have over-reacted to the stunts of an “agent provocateur.”
At the Surveillance Club meeting, Sonne shared his plans to listen in on police scanners during the summit and disseminate information to protesters via Twitter, according to fellow members of the group.
This was the same tactic used by two protesters at last year’s G20 summit in Pittsburgh, a plan that ultimately led to their arrests. The charges were dropped.
Kristen Peterson was charged with explosives and weapons possession a day after her common-law husband Byron Sonne was arrested at their Forest Hill home on June 22, 2010.
Sonne, who remains in jail, faces a number of charges — the most serious of which is possession of an explosive. He also faces charges of mischief and intimidating a justice system participant.
Peterson’s lawyer Brian Heller said that he appreciated the professionalism of the police and crown attorney’s office in dropping all the charges before a trial began, in an interview with the Star outside a courtroom in the Old City Hall Courthouse.
“For us the system worked,” Heller said to the Star.
The 37-year-old Peterson, however, has been free on bail since June 26. Her bail conditions originally included living with her parents, Maureen and John Peterson, and having no contact with Sonne except in the presence of lawyers. But in the fall, the terms of her bail were relaxed and she returned to her home.
Peterson, a visual artist, was charged with possession of the ingredients needed to make an explosive device and possession of a weapon “for a dangerous purpose.”
She and her husband lived in a million dollar home on Elderwood Dr. in Forest Hill, where the 37-year-old Sonne operated his computer security company, Halvdan — which means “half-Danish” — Solutions.
The couple has been together for at least a decade and refers to each other as husband and wife, according to some. But police described their relationship as common law.
The daughter of a Toronto executive, Peterson holds English literature and Master of Visual Studies degrees from the University of Toronto and a fine art diploma from the Toronto School of Art.
Her art career so far has focused on installation work or site specific drawings on buildings, according to one biography.
One of her first permanent installations was commissioned by the Toronto Transit Commission for the St. Clair West streetcar line and was to be unveiled last year.
“My goal is to explore the underpinnings of how we both create and perceive space,” Peterson writes on her webpage.
In 2006, she was the resident artist in the Spadina Museum’s Lynn Donoghue Artist in Residence Program that is run through the city culture program. A long-time Art Gallery of Ontario docent, Peterson used windows and mirrors inside the museum to reveal hidden areas of the building near Casa Loma.
Sonne came from a very different world. He is described as “slightly nerdy with a receding hairline.” In his spare time, he liked to hang out at HackLab TO, a non-profit group for techies who delight in building everything from LED signs to computer codes.
Well-respected in his field of computer security, Sonne had previously worked for top companies such as Circle Network Security and FSC Internet Corp.
For those who know Sonne, it is his tendency for mischief that may have landed him in hot water. In high school, Sonne reportedly planted a fake bomb that resulted in his school being evacuated, causing classmates to vote him “most likely to become an international terrorist” in their yearbook, according to a former schoolmate.
Those who now know Sonne say he is a good guy with strong ethics, the farthest thing from a scheming terrorist. With the entire city tense in the lead-up to the G20 summit, Julian Dunn wonders if security officials may have over-reacted to the stunts of an “agent provocateur.”
At the Surveillance Club meeting, Sonne shared his plans to listen in on police scanners during the summit and disseminate information to protesters via Twitter, according to fellow members of the group.
This was the same tactic used by two protesters at last year’s G20 summit in Pittsburgh, a plan that ultimately led to their arrests. The charges were dropped.
Thursday, January 27, 2011
Electoral race tightens dramatically in Ontario, with Tories and Grits separated by just two points.
Conservatives Drop Back, Lead Liberals by Six Points in Canada
Electoral race tightens dramatically in Ontario, with Tories and Grits separated by just two points.
The Conservative Party is holding on to the top spot in Canada, but has lost points in the new year, a new Vision Critical / Angus Reid poll has found.
In the online survey of a representative national sample of 1,008 Canadian adults, 34 per cent of respondents (-3 since December) would support the governing Conservative Party in the next federal election.
The Liberal Party is second with 28 per cent (+2), followed by the New Democratic Party (NDP) with 17 per cent (-1), the Bloc Québécois with 11 per cent (+1), and the Green Party with eight per cent (+1).
While the Tories and the NDP are now below their final tally in the 2008 election, the Grits, the Bloc and the Greens are ahead of their result in the last federal ballot.
Regional Breakdowns
The Tories maintain their dominance in Alberta (65%) and Manitoba and Saskatchewan (44%). In British Columbia, two-in-five decided voters would support the governing party (42%), followed by the NDP (25%) and the Liberals (21%).
The biggest change has come in Ontario, where the 13-point Tory lead observed in December has become a statistical tie (Conservatives 38%, Liberals 36%). In Quebec, the Bloc remains ahead with 43 per cent, followed by the three federalist parties (Lib. 22%, NDP 15%, Con. 13%).
Support for the Liberals is practically the same among men (29%) and women (27%), while a noticeable gender gap continues with the Tories. Almost two-in-five decided male voters (38%) would cast a ballot for the Conservative candidate in their riding, but only 29 per cent of women would join them.
The Conservatives dominate with voters aged 55 and over (42%), but are now tied with the Liberals among voters aged 35 to 54 (both at 32 per cent).
Approval and Momentum
There was little movement in these questions, with Conservative leader and Prime Minister Stephen Harper maintaining an approval rating of 26 per cent. NDP leader Jack Layton gained a point to tie Harper at 26 per cent, while Liberal Party and Official Opposition leader Michael Ignatieff dropped to 12 per cent. Layton keeps the best momentum score of the three leaders at -3, followed by Harper with -18 and Ignatieff with -20.
Legislatures
Overall approval for the House of Commons fell by six points since December to 27 per cent, with disapproval rising four points to 47 per cent. The Senate keeps lower numbers, with just 18 per cent of respondents (-5 since December) approving of its actions. One-in-four Canadians (25%) are satisfied with the way their provincial legislature is performing, down five points in a month.
Analysis
The start of 2011 did not provide a boost to the Conservative Party, with a noticeable drop across the country and in Ontario—the key battleground for the next federal election. The current gender and age gaps would not allow the Tories to get a majority mandate in a snap election.
The Liberals are performing better than in 2008, but the approval rating for Michael Ignatieff remains low. The NDP has not reached the 20 per cent mark since July, and is having a difficult time connecting with middle-aged voters. The two parties that did better this month are the Bloc and the Greens, particularly among young voters.
The latest editions of the Canadian Political Pulse can be accessed here:
January 2010 / February 2010 / March 2010 / April 2010 / May 2010 / July 2010 / August 2010 / September 2010 / October 2010 / December 2010
Full Report, Detailed Tables and Methodology (PDF)
Electoral race tightens dramatically in Ontario, with Tories and Grits separated by just two points.
The Conservative Party is holding on to the top spot in Canada, but has lost points in the new year, a new Vision Critical / Angus Reid poll has found.
In the online survey of a representative national sample of 1,008 Canadian adults, 34 per cent of respondents (-3 since December) would support the governing Conservative Party in the next federal election.
The Liberal Party is second with 28 per cent (+2), followed by the New Democratic Party (NDP) with 17 per cent (-1), the Bloc Québécois with 11 per cent (+1), and the Green Party with eight per cent (+1).
While the Tories and the NDP are now below their final tally in the 2008 election, the Grits, the Bloc and the Greens are ahead of their result in the last federal ballot.
Regional Breakdowns
The Tories maintain their dominance in Alberta (65%) and Manitoba and Saskatchewan (44%). In British Columbia, two-in-five decided voters would support the governing party (42%), followed by the NDP (25%) and the Liberals (21%).
The biggest change has come in Ontario, where the 13-point Tory lead observed in December has become a statistical tie (Conservatives 38%, Liberals 36%). In Quebec, the Bloc remains ahead with 43 per cent, followed by the three federalist parties (Lib. 22%, NDP 15%, Con. 13%).
Support for the Liberals is practically the same among men (29%) and women (27%), while a noticeable gender gap continues with the Tories. Almost two-in-five decided male voters (38%) would cast a ballot for the Conservative candidate in their riding, but only 29 per cent of women would join them.
The Conservatives dominate with voters aged 55 and over (42%), but are now tied with the Liberals among voters aged 35 to 54 (both at 32 per cent).
Approval and Momentum
There was little movement in these questions, with Conservative leader and Prime Minister Stephen Harper maintaining an approval rating of 26 per cent. NDP leader Jack Layton gained a point to tie Harper at 26 per cent, while Liberal Party and Official Opposition leader Michael Ignatieff dropped to 12 per cent. Layton keeps the best momentum score of the three leaders at -3, followed by Harper with -18 and Ignatieff with -20.
Legislatures
Overall approval for the House of Commons fell by six points since December to 27 per cent, with disapproval rising four points to 47 per cent. The Senate keeps lower numbers, with just 18 per cent of respondents (-5 since December) approving of its actions. One-in-four Canadians (25%) are satisfied with the way their provincial legislature is performing, down five points in a month.
Analysis
The start of 2011 did not provide a boost to the Conservative Party, with a noticeable drop across the country and in Ontario—the key battleground for the next federal election. The current gender and age gaps would not allow the Tories to get a majority mandate in a snap election.
The Liberals are performing better than in 2008, but the approval rating for Michael Ignatieff remains low. The NDP has not reached the 20 per cent mark since July, and is having a difficult time connecting with middle-aged voters. The two parties that did better this month are the Bloc and the Greens, particularly among young voters.
The latest editions of the Canadian Political Pulse can be accessed here:
January 2010 / February 2010 / March 2010 / April 2010 / May 2010 / July 2010 / August 2010 / September 2010 / October 2010 / December 2010
Full Report, Detailed Tables and Methodology (PDF)
Wednesday, January 26, 2011
The Federal Court of Canada has rejected a native group's claim that recent changes to the census were unconstitutional, concluding the group failed to show that an aboriginal right was at stake.
Federal Court rejects native concerns over changes to national census
OTTAWA - The Federal Court of Canada has rejected a native group's claim that recent changes to the census were unconstitutional, concluding the group failed to show that an aboriginal right was at stake.
The coalition of Maritime groups, which represents off-reserve Indians, had asked the court to force the federal government to abandon its plans to scrap the mandatory long-form census in favour of a similar, voluntary survey.
The group argued the voluntary nature of the 2011 national household survey would produce skewed data about Canada's 300,000 off-reserve natives, leaving them at a disadvantage.
Roger Hunka, director of intergovernmental affairs with the Maritime Aboriginal Peoples Council, said the umbrella group was "disheartened" by the decision.
"I have to talk to the lawyers to see if we pursue an appeal," he said from his office in Truro Heights, N.S.
The federal cabinet decided last year to drop the mandatory, long-form census, saying they wanted to strike a balance between the need for reliable data and the right of Canadians to refuse to divulge personal information. The mandatory short form will remain in use.
However, the new voluntary survey has been slammed as statistically inadequate by hundreds of organizations, municipalities and some provinces.
Last month, the aboriginal group's lawyer, Anne Smith, told the Federal Court that about 98 per cent of the mandatory long forms were filled out and returned during the 2006 census, but only about 40 to 50 per cent of voluntary surveys are ever returned.
She said the consequence of the change would be shoddy data from a smaller sample size, which would compromise the programs and services available to aboriginal peoples, particularly those who live off-reserve.
The coalition argued that the changes were contrary to the Crown's constitutional and legal obligations to aboriginal peoples, and will result in the federal government being unable to fulfil its duties under the Statistics Act.
But Federal Court Judge Russel Zinn said the native coalition failed to establish the existence of an aboriginal right that might be adversely affected by the changes.
"The applicants have not suggested that there is any treaty right at issue and they have failed to point to a possible aboriginal right that has been infringed," he wrote in his 36-page judgement.
"Instead, they rely on the general duty of the 'honour of the Crown' to ground their claim that there has been a violation of a constitutional right."
Smith had argued that aboriginals enjoy a special relationship with the federal government through a concept known as the honour of the Crown. That concept means Ottawa has a duty to consult when implementing legal changes that could affect native peoples, she said.
But the judge rejected that argument, too.
Hunka said the judge's interpretation was too narrow, saying honour of the Crown covers aboriginal people in general, not just aboriginal treaties and rights.
He took exception with Zinn's conclusion that even if the voluntary survey produces skewed results, Statistics Canada has the option of tossing out the data and conducting another survey.
"Obviously, his interpretation is that it doesn't really matter if you don't count aboriginal people, that's OK," Hunka said in an interview.
Since 1971, Statistics Canada has used two census forms. About 80 per cent of households receive a mandatory short-form census containing eight basic questions about age, sex, marital status and mother tongue.
The remaining 20 per cent had received a mandatory long-form census that contained the same eight questions, as well as 53 questions on education, ethnicity, income, employment and dwellings.
The replacement for the long form contains most of the questions in the original long form, but there have been some alterations.
The next census will be conducted in May.
OTTAWA - The Federal Court of Canada has rejected a native group's claim that recent changes to the census were unconstitutional, concluding the group failed to show that an aboriginal right was at stake.
The coalition of Maritime groups, which represents off-reserve Indians, had asked the court to force the federal government to abandon its plans to scrap the mandatory long-form census in favour of a similar, voluntary survey.
The group argued the voluntary nature of the 2011 national household survey would produce skewed data about Canada's 300,000 off-reserve natives, leaving them at a disadvantage.
Roger Hunka, director of intergovernmental affairs with the Maritime Aboriginal Peoples Council, said the umbrella group was "disheartened" by the decision.
"I have to talk to the lawyers to see if we pursue an appeal," he said from his office in Truro Heights, N.S.
The federal cabinet decided last year to drop the mandatory, long-form census, saying they wanted to strike a balance between the need for reliable data and the right of Canadians to refuse to divulge personal information. The mandatory short form will remain in use.
However, the new voluntary survey has been slammed as statistically inadequate by hundreds of organizations, municipalities and some provinces.
Last month, the aboriginal group's lawyer, Anne Smith, told the Federal Court that about 98 per cent of the mandatory long forms were filled out and returned during the 2006 census, but only about 40 to 50 per cent of voluntary surveys are ever returned.
She said the consequence of the change would be shoddy data from a smaller sample size, which would compromise the programs and services available to aboriginal peoples, particularly those who live off-reserve.
The coalition argued that the changes were contrary to the Crown's constitutional and legal obligations to aboriginal peoples, and will result in the federal government being unable to fulfil its duties under the Statistics Act.
But Federal Court Judge Russel Zinn said the native coalition failed to establish the existence of an aboriginal right that might be adversely affected by the changes.
"The applicants have not suggested that there is any treaty right at issue and they have failed to point to a possible aboriginal right that has been infringed," he wrote in his 36-page judgement.
"Instead, they rely on the general duty of the 'honour of the Crown' to ground their claim that there has been a violation of a constitutional right."
Smith had argued that aboriginals enjoy a special relationship with the federal government through a concept known as the honour of the Crown. That concept means Ottawa has a duty to consult when implementing legal changes that could affect native peoples, she said.
But the judge rejected that argument, too.
Hunka said the judge's interpretation was too narrow, saying honour of the Crown covers aboriginal people in general, not just aboriginal treaties and rights.
He took exception with Zinn's conclusion that even if the voluntary survey produces skewed results, Statistics Canada has the option of tossing out the data and conducting another survey.
"Obviously, his interpretation is that it doesn't really matter if you don't count aboriginal people, that's OK," Hunka said in an interview.
Since 1971, Statistics Canada has used two census forms. About 80 per cent of households receive a mandatory short-form census containing eight basic questions about age, sex, marital status and mother tongue.
The remaining 20 per cent had received a mandatory long-form census that contained the same eight questions, as well as 53 questions on education, ethnicity, income, employment and dwellings.
The replacement for the long form contains most of the questions in the original long form, but there have been some alterations.
The next census will be conducted in May.
Tuesday, January 25, 2011
Canada's top court won't hear an argument that the New Brunswick government discriminated against a man with autism by transferring him to Maine for care.
Court won't hear appeal over transfer of autistic N.B. man to U.S.
Canada's top court won't hear an argument that the New Brunswick government discriminated against a man with autism by transferring him to Maine for care.
The Supreme Court has dismissed a claim brought by the New Brunswick Human Rights Commission against the former Department of Family and Community Services.
The court typically doesn't give reasons for not hearing a case.
New Brunswick Appeal Court ruled against the commission last year, upholding a decision made in Court of Queen's Bench.
The man's parents argued that the province's decision to move their son out of Fredericton, place him in institutional care in Saint John and ultimately move him out of New Brunswick amounted to discrimination.
The Appeal Court said the level of care required by the autistic man simply wasn't available in the province.
Seamus Cox, a lawyer at the New Brunswick Human Rights Commission, said last week's decision by the Supreme Court of Canada ends the matter.
"The file will now be closed," he said.
The man's parents filed a complaint with the human rights commission in 2002. The man, who was 21 at the time, had been living in a group home in Fredericton near his parents because of his escalating aggressive behaviour.
When the group home could no longer accommodate him, the Department of Family and Community Services moved him to Centracare, a specialized long-term care facility in Saint John for a short-term placement.
In March 2005, the man was transferred again to Spurwink, a facility in Portland, Me.
Canada's top court won't hear an argument that the New Brunswick government discriminated against a man with autism by transferring him to Maine for care.
The Supreme Court has dismissed a claim brought by the New Brunswick Human Rights Commission against the former Department of Family and Community Services.
The court typically doesn't give reasons for not hearing a case.
New Brunswick Appeal Court ruled against the commission last year, upholding a decision made in Court of Queen's Bench.
The man's parents argued that the province's decision to move their son out of Fredericton, place him in institutional care in Saint John and ultimately move him out of New Brunswick amounted to discrimination.
The Appeal Court said the level of care required by the autistic man simply wasn't available in the province.
Seamus Cox, a lawyer at the New Brunswick Human Rights Commission, said last week's decision by the Supreme Court of Canada ends the matter.
"The file will now be closed," he said.
The man's parents filed a complaint with the human rights commission in 2002. The man, who was 21 at the time, had been living in a group home in Fredericton near his parents because of his escalating aggressive behaviour.
When the group home could no longer accommodate him, the Department of Family and Community Services moved him to Centracare, a specialized long-term care facility in Saint John for a short-term placement.
In March 2005, the man was transferred again to Spurwink, a facility in Portland, Me.
Monday, January 24, 2011
Ottawa appeals court ruling on accessible websites : Visually-impaired activist Donna Jodhan asks, 'Should we be interpreting this to mean that the government does not consider us as equal?'.
Ottawa appeals court ruling on accessible websites
Visually-impaired activist Donna Jodhan asks, 'Should we be interpreting this to mean that the government does not consider us as equal?'
Ottawa (24 January 2011) – The federal government is appealing a December 2010 ruling of the Federal Court of Canada ordering it to make its websites accessible to visually impaired users.
The appeal is against a landmark victory by Donna Jodhan in a case against the federal government regarding accessible websites. The National Union of Public and General Employees (NUPGE) profiled Jodhan’s victory in a report celebrating the United Nations' International Day of Persons with Disabilities (IDPD) on Dec. 3, 2010.
Jodhan was also a guest speaker at a NUPGE meeting of equality and human rights activists held in Ottawa in December. She talked about her successful Charter challenge and her decade-long mission to challenge Ottawa to make federal websites more accessible to vision-impaired Canadians.
NUPGE applauded Justice Michael Kelen’s ruling that Canada's federal government must deliver key websites in a usable format for blind and partially-sighted Canadians.
During the court case, federal lawyers argued that no discrimination was occurring because those same services are provided in other formats, such as on the phone, in person or by mail. Jodhan, however, was successful in convincing the court to side with her view that, "visually impaired people should have equal access to services and information on federal government websites."
Commenting on the federal government’s decision to appeal the court's ruling, Jodhan told NUPGE:
"On the one hand I am not very surprised to see that this government has decided to appeal but on the other I am extremely disappointed, saddened and tremendously disturbed. This government knows exactly what needs to be done and I do not understand why they would continue to spend so much money to fight us for something that is our right under the Charter of Rights and Freedoms," she said.
"At a time when this government continues to preach economic restraint, it can somehow justify the need to spend taxpayers' money to deprive our community of our rights. Should we be interpreting this to mean that the government does not consider us as equal? Are we being told in so many words that we are nothing more than second class citizens?" she asked.
"This is probably one of the saddest days for our community. We seldom have much to celebrate and now this government has slapped us in the face through their actions. We are not going to go away. Rest assured that there are others who are willing and ready to walk the walk with me to ensure that our future becomes a better one. I go in the name of all of us and for our kids of the future."
NUPGE
The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 340,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE
Visually-impaired activist Donna Jodhan asks, 'Should we be interpreting this to mean that the government does not consider us as equal?'
Ottawa (24 January 2011) – The federal government is appealing a December 2010 ruling of the Federal Court of Canada ordering it to make its websites accessible to visually impaired users.
The appeal is against a landmark victory by Donna Jodhan in a case against the federal government regarding accessible websites. The National Union of Public and General Employees (NUPGE) profiled Jodhan’s victory in a report celebrating the United Nations' International Day of Persons with Disabilities (IDPD) on Dec. 3, 2010.
Jodhan was also a guest speaker at a NUPGE meeting of equality and human rights activists held in Ottawa in December. She talked about her successful Charter challenge and her decade-long mission to challenge Ottawa to make federal websites more accessible to vision-impaired Canadians.
NUPGE applauded Justice Michael Kelen’s ruling that Canada's federal government must deliver key websites in a usable format for blind and partially-sighted Canadians.
During the court case, federal lawyers argued that no discrimination was occurring because those same services are provided in other formats, such as on the phone, in person or by mail. Jodhan, however, was successful in convincing the court to side with her view that, "visually impaired people should have equal access to services and information on federal government websites."
Commenting on the federal government’s decision to appeal the court's ruling, Jodhan told NUPGE:
"On the one hand I am not very surprised to see that this government has decided to appeal but on the other I am extremely disappointed, saddened and tremendously disturbed. This government knows exactly what needs to be done and I do not understand why they would continue to spend so much money to fight us for something that is our right under the Charter of Rights and Freedoms," she said.
"At a time when this government continues to preach economic restraint, it can somehow justify the need to spend taxpayers' money to deprive our community of our rights. Should we be interpreting this to mean that the government does not consider us as equal? Are we being told in so many words that we are nothing more than second class citizens?" she asked.
"This is probably one of the saddest days for our community. We seldom have much to celebrate and now this government has slapped us in the face through their actions. We are not going to go away. Rest assured that there are others who are willing and ready to walk the walk with me to ensure that our future becomes a better one. I go in the name of all of us and for our kids of the future."
NUPGE
The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 340,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE
Sunday, January 23, 2011
The Supreme Court of Canada will not hear an appeal from Democracy Watch.
The Supreme Court of Canada will not hear an appeal from a democracy advocacy group that says Prime Minister Stephen Harper broke his own law in 2008 when he asked for a federal election.
On Thursday, Canada's top court denied leave to appeal by Democracy Watch, the national non-profit organization's third legal challenge.
As is routine, the Supreme Court did not give reasons for dismissing the appeal.
Democracy Watch claims the prime minister broke his own fixed election date law, which received royal assent in May 2007, by asking then-governor general Michaelle Jean to dissolve Parliament in September 2008.
Jean agreed to Harper's request and Canadians went to the polls on Oct. 14, 2008.
The Federal Court of Appeal ruled in May last year that Bill C-16, the fixed election date law, did not prevent such snap elections and therefore the 2008 election was legal.
The amendments to the Canada Elections Act in Bill C-16 say that: "Subject to an earlier dissolution of Parliament, a general election must be held on the third Monday in October in the fourth calendar year following a previous general election, with the first general election to be held on Monday, October 19, 2009."
The federal appeal was heard after a judgment in September 2009, which also found the election call to be within the government's legal right.
The Prime Minister's Office has always contended the 2008 election was called in accordance with Canadian law.
Democracy Watch co-ordinator Duff Conacher has said the election call provided the Conservatives with an advantage because of the short time other parties had to prepare candidates for the election.
The October 2008 election resulted in another minority government for the Conservatives.
Fixed election dates are also in effect in British Columbia, Saskatchewan, Manitoba, Ontario, Newfoundland and Labrador, New Brunswick, Prince Edward Island and the Northwest Territories.
Read more: http://www.canada.com/news/Appeal+over+Harper+2008+election+dismissed+Supreme+Court/4140233/story.html#ixzz1BpvFDjaD
On Thursday, Canada's top court denied leave to appeal by Democracy Watch, the national non-profit organization's third legal challenge.
As is routine, the Supreme Court did not give reasons for dismissing the appeal.
Democracy Watch claims the prime minister broke his own fixed election date law, which received royal assent in May 2007, by asking then-governor general Michaelle Jean to dissolve Parliament in September 2008.
Jean agreed to Harper's request and Canadians went to the polls on Oct. 14, 2008.
The Federal Court of Appeal ruled in May last year that Bill C-16, the fixed election date law, did not prevent such snap elections and therefore the 2008 election was legal.
The amendments to the Canada Elections Act in Bill C-16 say that: "Subject to an earlier dissolution of Parliament, a general election must be held on the third Monday in October in the fourth calendar year following a previous general election, with the first general election to be held on Monday, October 19, 2009."
The federal appeal was heard after a judgment in September 2009, which also found the election call to be within the government's legal right.
The Prime Minister's Office has always contended the 2008 election was called in accordance with Canadian law.
Democracy Watch co-ordinator Duff Conacher has said the election call provided the Conservatives with an advantage because of the short time other parties had to prepare candidates for the election.
The October 2008 election resulted in another minority government for the Conservatives.
Fixed election dates are also in effect in British Columbia, Saskatchewan, Manitoba, Ontario, Newfoundland and Labrador, New Brunswick, Prince Edward Island and the Northwest Territories.
Read more: http://www.canada.com/news/Appeal+over+Harper+2008+election+dismissed+Supreme+Court/4140233/story.html#ixzz1BpvFDjaD
Saturday, January 22, 2011
Keith Olbermann signs off of MSMBC.
After eight years together, MSNBC and Keith Olbermann are parting ways.
A statement from NBC Universal revealed the move late Friday. "MSNBC and Keith Olbermann have ended their contract," it read, "The last broadcast of 'Countdown with Keith Olbermann' will be this evening. MSNBC thanks Keith for his integral role in MSNBC's success and we wish him well in his future endeavors."
At the end of his show Friday night, Olbermann announced his departure in typical deadpan style, evoking scenes from the film "Network" and thanking viewers for keeping him on the air for eight years.
"In the mundane world television goodbyes, reality is laughably uncooperative," Olbermann said before launching into a story about his exit from ESPN 13 years ago.
"As God as my witness, in the commercial break just before the emotional moment, the producer got into my earpiece and he said, 'um, can you cut it down to 15 seconds so we get in this tennis result from Stuttgart,'" he said, half-smiling, pausing for composure.
"So I'm grateful I have a little more time to sign off here. Regardless this is the last edition of 'Countdown.' "
Olbermann thanked his crew and co-workers, with special praise for the man he called "my greatest protector and most indefatigable cheerleader," Tim Russert, the host of NBC's "Meet the Press" who died in 2008.
Olbermann was suspended for two days in November of 2010 after the news website Politico revealed donations made to to three Democrats seeking federal office. One of them was Arizona Rep. Gabriel Giffords, who was wounded earlier this month in a mass shooting and attempted assassination in Tucson.
He gave $2,400 -- the maximum individual amount allowed -- to Gifford's campaign, and the campaigns of Kentucky Senate candidate Jack Conway and Arizona Rep. Raul Grijalva. Conway lost his bid, while Grijalva and Giffords eked out wins.
NBC said the donations violated a policy that requires employees of the news organization to obtain permission ahead of any political donations or activities that could be deemed as a conflict of interest.
Olbermann complained publicly about his frustration with NBC's management. He made it clear that he resented the insinuation that he was attempting to hide his actions.
"When a website contacted NBC about one of the donations, I immediately volunteered that there were in fact three of them; and contrary to much of the subsequent reporting, I immediately volunteered to explain all this, on-air and off, in the fashion MSNBC desired," Olbermann also said in a statement released during the time.
He also accused NBC of "inconsistently"applying its policy and suspending him without first hearing his side of the story.
A statement from NBC Universal revealed the move late Friday. "MSNBC and Keith Olbermann have ended their contract," it read, "The last broadcast of 'Countdown with Keith Olbermann' will be this evening. MSNBC thanks Keith for his integral role in MSNBC's success and we wish him well in his future endeavors."
At the end of his show Friday night, Olbermann announced his departure in typical deadpan style, evoking scenes from the film "Network" and thanking viewers for keeping him on the air for eight years.
"In the mundane world television goodbyes, reality is laughably uncooperative," Olbermann said before launching into a story about his exit from ESPN 13 years ago.
"As God as my witness, in the commercial break just before the emotional moment, the producer got into my earpiece and he said, 'um, can you cut it down to 15 seconds so we get in this tennis result from Stuttgart,'" he said, half-smiling, pausing for composure.
"So I'm grateful I have a little more time to sign off here. Regardless this is the last edition of 'Countdown.' "
Olbermann thanked his crew and co-workers, with special praise for the man he called "my greatest protector and most indefatigable cheerleader," Tim Russert, the host of NBC's "Meet the Press" who died in 2008.
Olbermann was suspended for two days in November of 2010 after the news website Politico revealed donations made to to three Democrats seeking federal office. One of them was Arizona Rep. Gabriel Giffords, who was wounded earlier this month in a mass shooting and attempted assassination in Tucson.
He gave $2,400 -- the maximum individual amount allowed -- to Gifford's campaign, and the campaigns of Kentucky Senate candidate Jack Conway and Arizona Rep. Raul Grijalva. Conway lost his bid, while Grijalva and Giffords eked out wins.
NBC said the donations violated a policy that requires employees of the news organization to obtain permission ahead of any political donations or activities that could be deemed as a conflict of interest.
Olbermann complained publicly about his frustration with NBC's management. He made it clear that he resented the insinuation that he was attempting to hide his actions.
"When a website contacted NBC about one of the donations, I immediately volunteered that there were in fact three of them; and contrary to much of the subsequent reporting, I immediately volunteered to explain all this, on-air and off, in the fashion MSNBC desired," Olbermann also said in a statement released during the time.
He also accused NBC of "inconsistently"applying its policy and suspending him without first hearing his side of the story.
Friday, January 21, 2011
York Regional Police officer G20 officer: ‘This ain’t Canada right now’
A G20 incident caught on video that shows a York Regional Police officer telling a protester he is no longer in Canada and has no civil rights is under investigation.
The video shows several activists standing outside of the G20 security perimeter at King St. W. and University Ave. on June 27 while their bags are searched by a group of police officers. The mood is pleasant until a young man in a black T-shirt and cap refuses to hand over his backpack.
Just outside the St. Andrew subway station, a male York Regional Police officer wraps one arm around the protester and tells him: “You don’t get a choice, get moving.”
“Why are you grabbing me, man?” says the unidentified protester, who in another G20 video gives a brief monologue about animal rights. “I didn’t do anything.”
The officer’s badge number, 815, is clearly visible in the video. The officer with that number, Sgt. Mark Charlebois, said in an email that he would love to speak but couldn’t because the matter was before the Ontario Independent Police Review Director.
“If I was sensitive, I would likely be crying all the time with the comments about me,” he said.
No one from the OIPRD was available to comment.
York police media officer Sgt. Gary Phillips said the incident was the subject of a citizen’s complaint.
In the video, a woman’s voice from behind the camera points out that the protesters are not within 5 metres of the cordoned-off zone — the area in which Torontonians were led to believe, erroneously, that they could legally be searched by police officers at whim.
The male protester insists that, as a Canadian, he has the right to refuse the search. But the officer disagrees.
“This ain’t Canada right now,” he says.
While the crowd laughs in disbelief, the officer continues to tell the protester he has two choices: leave, or open his bag. The protester continues to refuse to do either. “I just don’t like to have my civil rights violated,” he says eventually.
“There is no civil rights here in this area,” the officer replies. “How many times do you gotta be told that?”
“I was upset that police officers could make those kinds of statements in a democracy,” says Derek Soberal, co-filmmaker of the film Toronto G20 Exposed, who re-posted the video on his YouTube site.
The video has been viewed more than 40,000 times.
The video shows several activists standing outside of the G20 security perimeter at King St. W. and University Ave. on June 27 while their bags are searched by a group of police officers. The mood is pleasant until a young man in a black T-shirt and cap refuses to hand over his backpack.
Just outside the St. Andrew subway station, a male York Regional Police officer wraps one arm around the protester and tells him: “You don’t get a choice, get moving.”
“Why are you grabbing me, man?” says the unidentified protester, who in another G20 video gives a brief monologue about animal rights. “I didn’t do anything.”
The officer’s badge number, 815, is clearly visible in the video. The officer with that number, Sgt. Mark Charlebois, said in an email that he would love to speak but couldn’t because the matter was before the Ontario Independent Police Review Director.
“If I was sensitive, I would likely be crying all the time with the comments about me,” he said.
No one from the OIPRD was available to comment.
York police media officer Sgt. Gary Phillips said the incident was the subject of a citizen’s complaint.
In the video, a woman’s voice from behind the camera points out that the protesters are not within 5 metres of the cordoned-off zone — the area in which Torontonians were led to believe, erroneously, that they could legally be searched by police officers at whim.
The male protester insists that, as a Canadian, he has the right to refuse the search. But the officer disagrees.
“This ain’t Canada right now,” he says.
While the crowd laughs in disbelief, the officer continues to tell the protester he has two choices: leave, or open his bag. The protester continues to refuse to do either. “I just don’t like to have my civil rights violated,” he says eventually.
“There is no civil rights here in this area,” the officer replies. “How many times do you gotta be told that?”
“I was upset that police officers could make those kinds of statements in a democracy,” says Derek Soberal, co-filmmaker of the film Toronto G20 Exposed, who re-posted the video on his YouTube site.
The video has been viewed more than 40,000 times.
Thursday, January 20, 2011
Police "ordered" to stop Montebello protest: Court ruling boosts union leader's case : Bad news for the PMO/RCMP !.
"Yesterday's decision by a Quebec court judge is more proof that police are being used by politicians to carry out orders to stop democratic protests," says Dave Coles, president of the Communications, Energy and Paperworkers Union of Canada.
Coles is the union leader who made headlines after unmasking Sûreté du Québec "provocateurs" at the Montebello SPP summit of American, Mexican and Canadian leaders in August 2007.
Quebec Judge Real Lapointe ruled yesterday that the order to stop the demonstration at Montebello contravenes the Canadian Charter of Rights and Freedoms. Leila Martin brought the case to court after she was arrested at Montebello for protesting against the summit.
"It is obvious that the officers were following orders, and that these orders violated rights and freedoms," Judge Lapointe ruled. [translation].
Dave Coles says: "It's now clear that the decision to stop the protest at Montebello was illegal, but our question remains: Who was calling the shots? Protesters should be guaranteed that the government will not use police to incite violence again. Otherwise, how does legitimate dissent get a hearing?"
Coles made headlines when a video of his confrontation with police, one armed with a rock, and wearing black shirts and bandanas went viral on YouTube.
CEP immediately called for an inquiry to find out who ordered the police to try to turn a peaceful protest into a violent one, but was told it had to take the case through the Quebec Ethics Committee, where "it is now mired in red tape" according to Coles.
"No more hiding behind commissions and committees," says Coles. Prime Minister Harper should do the right thing now and hold an independent judicial inquiry. Yesterday's ruling is one more nail in the coffin of whoever was responsible for this whole cover up."
Read more: http://www.digitaljournal.com/pr/202363#ixzz1BYKzQwXO
Coles is the union leader who made headlines after unmasking Sûreté du Québec "provocateurs" at the Montebello SPP summit of American, Mexican and Canadian leaders in August 2007.
Quebec Judge Real Lapointe ruled yesterday that the order to stop the demonstration at Montebello contravenes the Canadian Charter of Rights and Freedoms. Leila Martin brought the case to court after she was arrested at Montebello for protesting against the summit.
"It is obvious that the officers were following orders, and that these orders violated rights and freedoms," Judge Lapointe ruled. [translation].
Dave Coles says: "It's now clear that the decision to stop the protest at Montebello was illegal, but our question remains: Who was calling the shots? Protesters should be guaranteed that the government will not use police to incite violence again. Otherwise, how does legitimate dissent get a hearing?"
Coles made headlines when a video of his confrontation with police, one armed with a rock, and wearing black shirts and bandanas went viral on YouTube.
CEP immediately called for an inquiry to find out who ordered the police to try to turn a peaceful protest into a violent one, but was told it had to take the case through the Quebec Ethics Committee, where "it is now mired in red tape" according to Coles.
"No more hiding behind commissions and committees," says Coles. Prime Minister Harper should do the right thing now and hold an independent judicial inquiry. Yesterday's ruling is one more nail in the coffin of whoever was responsible for this whole cover up."
Read more: http://www.digitaljournal.com/pr/202363#ixzz1BYKzQwXO
TeleZone case against Industry Canada will go to trial... Industry Canada 0 TeleZone .
TeleZone case against Industry Canada will go to trial
“The decision was extremely important ... what it means is that if anybody ... has a claim in law against the government which would give rise to a claim to money damages, they can pursue it automatically or directly in court the same way you would sue any other person or company,” Eliot Kolers, a partner at Stikeman Elliott in Toronto and co-counsel for TeleZone in the case, said in an interview.
“And it's not necessary to seek judicial review of that decision first.”
“The decision was extremely important ... what it means is that if anybody ... has a claim in law against the government which would give rise to a claim to money damages, they can pursue it automatically or directly in court the same way you would sue any other person or company,” Eliot Kolers, a partner at Stikeman Elliott in Toronto and co-counsel for TeleZone in the case, said in an interview.
“And it's not necessary to seek judicial review of that decision first.”
Wednesday, January 19, 2011
SUPREME COURT OF CANADA Citation: Canada (Attorney General) v. McArthur Docket: 33043.
Source: http://scc.lexum.umontreal.ca/en/2010/2010scc63/2010scc63.html
Date: 20101223
Docket: 33043
Between:
Attorney General of Canada and James Blackler,
also known as Jim Blackler
Appellants
and
Michiel McArthur
Respondent
- and -
Attorney General of British Columbia, Roland Anglehart Sr. et al.
Interveners
Coram: Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 18)
Binnie J. (LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Canada (Attorney General) v. McArthur
Attorney General of Canada and
James Blackler also known as Jim Blackler Appellants
v.
Michiel McArthur Respondent
and
Attorney General of British Columbia,
Roland Anglehart Sr., Roland Anglehart Jr.,
Bernard Arseneault, Héliodore Aucoin, Albert Benoît,
Robert Boucher, Elide Bulger, Gérard Cassivi,
Jean‑Gilles Chiasson, Ludger Chiasson,
Martin M. Chiasson, Rémi Chiasson,
2973‑0819 Québec inc., 2973‑1288 Québec inc.,
3087‑5199 Québec inc., Robert Collin, Roméo G. Cormier,
Marc Couture, Les Crustacées de Gaspé ltée,
Lino Desbois, Randy Deveau, Carol Duguay,
Charles‑Aimé Duguay, Denis Duguay, Donald Duguay,
Marius Duguay, Edgar Ferron, Armand Fiset,
Livain Foulem, Claude Gionest, Jocelyn Gionet,
Simon J. Gionet, Aurèle Godin, Valois Goupil,
Aurélien Haché, Donald R. Haché, Gaëtan Haché,
Guy Haché, Jacques E. Haché, Jason‑Sylvain Haché,
Jean‑Pierre Haché, Jacques A. Haché, René Haché,
Rhéal Haché, Robert F. Haché, Alban Hautcoeur,
Fernand Hautcoeur, Jean‑Claude Hautcoeur,
Gregg Hinkley, Jean‑Pierre Huard, Réjean Leblanc,
Christian Lelièvre, Elphège Lelièvre, Jean‑Elie Lelièvre,
Jules Lelièvre, Dassise Mallet, Delphis Mallet, Francis Mallet,
Jean‑Marc Marcoux, André Mazerolle, Eddy Mazerolle,
Gilles A. Noël, Lévis Noël, Martin Noël, Nicolas Noël,
Onésime Noël, Raymond Noël, Francis Parisé, Domitien Paulin,
Sylvain Paulin, Pêcheries Denise Quinn Syvrais inc.,
Pêcheries François inc., Pêcheries Jean‑Yan II inc.,
Pêcheries Jimmy L. ltée, Pêcheries J.V.L. ltée,
Pêcheries Ray‑L. inc., Les Pêcheries Serge‑Luc inc.,
Roger Pinel, Claude Poirier, Produits Belle Baie ltée,
Adrien Roussel, Jean‑Camille Roussel, Mathias Roussel,
Steven Roussy, Mario Savoie, Succession of Jean‑Pierre Robichaud,
Succession of Lucien Chiasson, Succession of Sylva Haché,
Jean‑Marc Sweeney, Michel Turbide, Réal Turbide,
Donat Vienneau, Fernand Vienneau, Livain Vienneau
and Rhéal Vienneau Interveners
Indexed as: Canada (Attorney General) v. McArthur
2010 SCC 63
File No.: 33043.
2010: January 20; 2010: December 23.
Present: Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Courts — Jurisdiction — Provincial superior courts — Action brought against Crown and federal official in Superior Court of Ontario seeking constitutional remedies and damages for wrongful or false imprisonment and for intentional or negligent infliction of emotional and mental distress — Whether plaintiff entitled to proceed by way of action in Superior Court of Ontario without first proceeding by way of judicial review in Federal Court — Federal Courts Act, R.S.C. 1985, c. F‑7, ss. 17, 18; Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50, s. 21.
Between 1994 and 1999, M spent approximately four years and six months in solitary confinement, segregation or in a special handling unit on instructions of B or other federal employees for whom the Crown is responsible. He did not seek to set aside the prison orders, but some years later filed a statement of claim in the Ontario Superior Court seeking damages and alleging that his detention had been arbitrary and constituted cruel and unusual punishment, contrary to the Canadian Charter of Rights and Freedoms. He claimed to have suffered severe emotional and psychological injury and harm. He also alleged that the decisions to place him in solitary confinement were made deliberately and maliciously or negligently. The Superior Court dismissed the claim on the basis of Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287, but the Court of Appeal overturned the decision on the ground that relief by way of damages was available in the superior court.
Held: The appeal should be dismissed.
For the reasons set out in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, a textual, contextual and purposive interpretation of the Federal Courts Act does not support the view that a plaintiff who claims to have suffered compensable loss as a result of an administrative decision must first have the lawfulness of the decision determined by the Federal Court. Further, the Federal Courts Act does not prevent provincial superior court scrutiny of the constitutionality of the conduct of federal officials. Here, the Superior Court is authorized to consider the validity of M’s detention in the context of his damages claim, as well as the impact, if any, of any valid detention orders on Crown liability. The collateral attack doctrine does not support the Attorney General’s jurisdictional challenge in light of the explicit statutory grant of jurisdiction to the provincial superior courts in the Federal Courts Act where “relief is claimed against the [federal] Crown” as well as the provisions of the Crown Liability and Proceedings Act.
Cases Cited
Applied: Canada (Attorney General) v. TeleZone, 2010 SCC 62; overruled: Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287; referred to: Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Morgentaler (1984), 41 C.R. (3d) 262; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 9, 12, 24(1).
Constitution Act, 1867, s. 101.
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 3, 31, 32, 33.
Corrections and Conditional Release Regulations, SOR/92‑620, ss. 21, 22.
Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50, s. 21.
Federal Courts Act, R.S.C. 1985, c. F‑7, ss. 17, 18.
APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Borins and Feldman JJ.A.), 2008 ONCA 892, 94 O.R. (3d) 19, 303 D.L.R. (4th) 626, 245 O.A.C. 91, 86 Admin L.R. (4th) 163, 40 C.E.L.R. (3d) 183, [2008] O.J. No. 5291 (QL), 2008 CarswellOnt 7826, setting aside a decision of Pedlar J., 2006 CarswellOnt 9820. Appeal dismissed.
Christopher M. Rupar, Alain Préfontaine and Bernard Letarte, for the appellants.
John A. Ryder‑Burbidge, for the respondent.
Written submissions only by the intervener the Attorney General of British Columbia.
Patrick Ferland and David Quesnel, for the interveners Roland Anglehart Sr. et al.
The judgment of the Court was delivered by
Binnie J. —
[1] The question raised by this appeal is whether a prison inmate who seeks damages in the Ontario Superior Court of Justice against federal prison authorities for arbitrary detention and alleged mistreatment over a decade ago must first seek judicial review in the Federal Court to quash the segregation orders that are the basis of his claim.
[2] As in the companion case of Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, released concurrently, the Attorney General of Canada characterizes the damages claim as a collateral attack on an administrative decision, here the segregation orders, and contests the jurisdiction of the provincial superior court to proceed unless and until the orders are set aside by the Federal Court. Until that happens, he says, the Crown and its servants are fully protected from liability by the statutory authority granted by the Corrections and Conditional Release Act, S.C. 1992, c. 20. For the reasons given in TeleZone I believe this objection to provincial superior court jurisdiction is not well founded. The Ontario Court of Appeal so held. I agree with that decision. I would dismiss the appeal.
I. Facts
[3] In October 1994, while on parole in respect of a previous conviction, Mr. McArthur was arrested and charged with numerous offences including robbery, kidnapping, attempted murder and assault causing bodily harm. He was brought to Millhaven, a federal institution, to await trial. The appellant James Blackler was the warden of Millhaven at that time. According to the allegations in the amended statement of claim, which for present purposes are to be taken as capable of proof, Mr. McArthur was kept in solitary confinement for approximately 18 months at Millhaven on the instructions of Mr. Blackler or other federal employees for whom the Crown is responsible.
[4] In May 1996, Mr. McArthur was voluntarily transferred from Millhaven to the Kingston Penitentiary. Just prior to Mr. McArthur’s arrival there, Mr. Blackler became the warden of the penitentiary and, so it is alleged in the amended statement of claim, caused Mr. McArthur to be placed in solitary confinement for another 14 months. This was all done, it is alleged, with “animus and malicious ill-will (sic)” (para. 24).
[5] Subsequently, the Correctional Service of Canada (“CSC”) transferred Mr. McArthur to the Special Handling Unit at Ste. Anne des Plaines, where he was again put in solitary confinement, this time for four months. In total, Mr. McArthur spent approximately four years and six months in solitary confinement, segregation or in a special handling unit between 1994 and 1999.
[6] Mr. McArthur alleges that he suffered losses as a result of four years and six months of involuntary solitary confinement in the form of “severe emotional and psychological injury and harm” (para. 26 (emphasis in original)). He was denied private family visits “routinely granted to other inmates whose circumstances [were] similar” (para. 24) as well as schooling, rehabilitation programs and “inmate leisure activities” (para. 25). Moreover, he says the same actions caused his wife and his daughter to suffer severe emotional and psychological harm, as “they were denied contacts and visits with [him] routinely granted to other inmates” (para. 26).
[7] Mr. McArthur insists that his detention in solitary confinement (sometimes referred to as a “prison within a prison”) was arbitrary and constituted cruel and unusual punishment, contrary to ss. 9 and 12 of the Canadian Charter of Rights and Freedoms. He further alleges that the respondents failed to comply with the Corrections and Conditional Release Act, which, together with its regulations and the directives of the Commissioner of Corrections, governs the circumstances in which an inmate may be placed in solitary confinement. Mr. McArthur alleges the series of decisions to place and retain him in solitary confinement for such an extensive period of time was made deliberately and maliciously, or, in the alternative, negligently. He seeks damages for wrongful or false imprisonment, and for the intentional or negligent infliction of emotional and mental distress. Mr. McArthur does not seek to set aside the segregation orders, whose practical effects were exhausted over 10 years ago when he was eventually released from solitary confinement.
II. Judicial History
A. Superior Court of Ontario (Pedlar J.), 2006 Carswell 9820
[8] The motions judge accepted the Attorney General’s argument based on the decision of the Federal Court of Appeal in Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287, which was decided on similar facts. He concluded that to permit the damages action to proceed in the Superior Court would disregard or deny the intention clearly expressed by Parliament in the Federal Courts Act, R.S.C. 1985, c. F-7, to grant the Federal Court exclusive jurisdiction in matters of judicial review. Accordingly, a plaintiff who claims to have suffered compensable loss as a result of an administrative decision must first have the lawfulness of the decision determined by the Federal Court. The motions judge stated, “I don’t think the Ontario Superior Court has jurisdiction until that’s done” (para. 8).
B. Ontario Court of Appeal (Laskin, Borins and Feldman JJ.A.),2008 ONCA 892, 94 O.R. (3d) 19
[9] In a unanimous decision authored by Borins J.A., the court concluded that “Grenier was not correctly decided” (para. 100). The Attorney General had not established that the plaintiff’s claims fit “squarely within s. 18(1)” (para. 94) of the Federal Courts Act which, in the court’s view, is concerned with remedies:
In none of the cases is a remedy sought that comes within the prerogative writs or extraordinary remedies of s. 18. Section 18 does not empower the Federal Court to award damages, which are sought [here].
. . .
. . . Causes of action in contract or tort are distinct from the prerogative writs and extraordinary remedies described in s. 18. Shortly put, relief by way of damages is not a form of relief contemplated by s. 18. [paras. 94-95]
Accordingly, the appeal was allowed.
III. Relevant Provisions
[10] Corrections and Conditional Release Act, S.C. 1992, c. 20
3. [Purpose of correctional system] The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
Administrative Segregation
31. (1) [Purpose] The purpose of administrative segregation is to keep an inmate from associating with the general inmate population.
(2) [Duration] Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time.
(3) [Grounds for confining inmate in administrative segregation] The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds
(a) that
(i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and
(ii) the continued presence of the inmate in the general inmate population would jeopardize the security of the penitentiary or the safety of any person,
(b) that the continued presence of the inmate in the general inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence, or
(c) that the continued presence of the inmate in the general inmate population would jeopardize the inmate’s own safety, and the institutional head is satisfied that there is no reasonable alternative to administrative segregation.
32. [Considerations governing release] All recommendations to the institutional head referred to in paragraph 33(1)(c) and all decisions by the institutional head to release or not to release an inmate from administrative segregation shall be based on the considerations set out in section 31.
33. (1) [Case to be reviewed] Where an inmate is involuntarily confined in administrative segregation, a person or persons designated by the institutional head shall
(a) conduct, at the prescribed time and in the prescribed manner, a hearing to review the inmate’s case;
(b) conduct, at prescribed times and in the prescribed manner, further regular hearings to review the inmate’s case; and
(c) recommend to the institutional head, after the hearing mentioned in paragraph (a) and after each hearing mentioned in paragraph (b), whether or not the inmate should be released from administrative segregation.
Corrections and Conditional Release Regulations, SOR/92-620
21. (1) Where an inmate is involuntarily confined in administrative segregation, the institutional head shall ensure that the person or persons referred to in section 33 of the Act who have been designated by the institutional head, which person or persons shall be known as a Segregation Review Board, are informed of the involuntary confinement.
(2) A Segregation Review Board referred to in subsection (1) shall conduct a hearing
(a) within five working days after the inmate’s confinement in administrative segregation; and
(b) at least once every 30 days thereafter that the inmate remains in administrative segregation.
(3) The institutional head shall ensure that an inmate who is the subject of a Segregation Review Board hearing pursuant to subsection (2)
(a) is given, at least three working days before the hearing, notice in writing of the hearing and the information that the Board will be considering at the hearing;
(b) is given an opportunity to be present and to make representations at the hearing; and
(c) is advised in writing of the Board’s recommendation to the institutional head and the reasons for the recommendation.
22. Where an inmate is confined in administrative segregation, the head of the region or a staff member in the regional headquarters who is designated by the head of the region shall review the inmate’s case at least once every 60 days that the inmate remains in administrative segregation to determine whether, based on the considerations set out in section 31 of the Act, the administrative segregation of the inmate continues to be justified.
A. Analysis
[11] The important principle at stake in this appeal, as in TeleZone, is access to justice. With some notable exceptions, prison inmates are not rich people. Few can afford the luxury of a front-end judicial review procedure to argue about the validity of a segregation order already served where quashing the order is no longer of practical interest. Mr. McArthur may have some interest in the good governance of the prison system but at the moment he is looking for compensation. He may not get it, of course, but he ought to be given his day in court without being put through unnecessary and unproductive proceedings unless the applicable statutes clearly and explicitly compel him to detour to the Federal Court.
[12] For the reasons set out in the companion case of TeleZone, I believe that the Attorney General’s argument exaggerates the legal effect of the grant in s. 18 of the Federal Courts Act of exclusive judicial review jurisdiction over federal decision makers. A textual, contextual and purposive interpretation of the Federal Courts Act does not support his case.
[13] As noted by the motions judge, the facts of this case closely resemble Grenier. In his amended statement of claim, Mr. McArthur pleads that the segregation orders were made “without just cause or excuse” (para. 12) and lacked “the reasonable grounds required under subsection 31(3) of the Act to justify placing [him] in involuntary administrative segregation” (para. 15). Clearly, he is putting in issue the lawfulness or validity of the segregation orders, but he does so as an element of a private law cause of action over which the provincial superior court has jurisdiction. There is nothing in the federal legislation that says the provincial courts can only determine some — but not all — elements of his monetary claims against the Crown.
[14] Moreover, the provincial superior court clearly has jurisdiction to hear Mr. McArthur’s claim for compensation under s. 24(1) of the Charter. In Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, an argument was made on behalf of the federal Crown that because constitutional relief was sought against federal officials (including the Director of Investigation and Research under the federal Combines Investigation Act, R.S.C. 1970, c. C-23, now repealed), all of whom fell within the definition of “federal board, commission or other tribunal”, the Federal Courts Act (at the time titled Federal Court Act) had successfully ousted the jurisdiction of the British Columbia Supreme Court. This Court concluded that Parliament could not, by giving exclusive jurisdiction to the Federal Court over federal officials, deny the provincial superior courts their traditional subject matter jurisdiction over constitutional issues. In my opinion, the Federal Courts Act equally cannot operate to prevent provincial superior court scrutiny of the constitutionality of the conduct of federal officials. Section 101 of the Constitution Act, 1867, authorizes the creation of “additional Courts for the better Administration of the Laws of Canada”. The provincial superior courts retain their historic jurisdiction over the Constitution. This does not preclude concurrent jurisdiction over constitutional subject matters in the Federal Court, of course, but it is not and cannot be made exclusive. Accordingly, quite apart from s. 17 of the Federal Courts Act, the Ontario Superior Court had jurisdiction to deal with Mr. McArthur’s Charter claim.
[15] Clearly, an issue before the Superior Court is whether the Crown defendants are covered by a defence of statutory authority, i.e., that the administrative segregation orders were lawfully made and that the emotional and psychological trauma allegedly suffered by Mr. McArthur were an inevitable risk of his lawful detention in solitary confinement. Since this is the case, the Attorney General argues, the claimed losses are not actionable. However, with respect, the Superior Court can readily consider the validity of Mr. McArthur’s detention in the context of a damages claim, as well as the impact, if any, of a valid order on Crown liability.
[16] While Mr. McArthur’s damages claim could be characterized in some sense as a “collateral attack” on the segregation orders, I do not believe that such an “attack” is precluded by the Federal Courts Act. Government decision making lies at the heart of many, if not most claims to recover financial loss from the Crown. For the reasons outlined in TeleZone I believe that the explicit statutory grant of jurisdiction to the provincial superior courts in respect of claims against the Crown in s. 17 of the Federal Courts Act and s. 21 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, renders the collateral attack doctrine inapplicable here.
[17] The Superior Court has jurisdiction to entertain Mr. McArthur’s damages claim (both in its tort and constitutional aspects) because its authority extends to “the person and the subject matter in question and, in addition, [because it] has authority to make the order sought”: Mills v. The Queen, [1986] 1 S.C.R. 863, per McIntyre J., at p. 960, quoting Brooke J.A. in R. v. Morgentaler (1984), 41 C.R. (3d) 262, at p. 271, and per Lamer J., at p. 890. See also R. v. Rahey, [1987] 1 S.C.R. 588, at p. 603; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 15; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765. There is nothing in the Federal Courts Act to give the Federal Court the exclusive jurisdiction to determine the lawfulness or validity of the order of a “federal board, commission or other tribunal” when Mr. McArthur does not seek any of the remedies listed in s. 18 of the Federal Courts Act, and when the practical effects of the segregation orders he complains of are spent, and such orders are now simply one element in a private law cause of action against the Crown and a federal official. To hold otherwise would undermine an explicit statutory grant of jurisdiction to the superior courts of the provinces and would be for formalistic reasons that are neither compelling nor consistent with promotion of access to justice in a direct and cost efficient manner.
IV. Conclusion
[18] I would dismiss the appeal with costs throughout to Mr. McArthur and order that the Superior Court has jurisdiction over his claim.
Appeal dismissed with costs.
Solicitor for the appellants: Deputy Attorney General of Canada, Ottawa.
Solicitors for the respondent: Ryder‑Burbidge Hurley Fasano, Kingston.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Vancouver.
Solicitors for the interveners Roland Anglehart Sr. et al.: Heenan Blaikie, Montréal.
Date: 20101223
Docket: 33043
Between:
Attorney General of Canada and James Blackler,
also known as Jim Blackler
Appellants
and
Michiel McArthur
Respondent
- and -
Attorney General of British Columbia, Roland Anglehart Sr. et al.
Interveners
Coram: Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 18)
Binnie J. (LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Canada (Attorney General) v. McArthur
Attorney General of Canada and
James Blackler also known as Jim Blackler Appellants
v.
Michiel McArthur Respondent
and
Attorney General of British Columbia,
Roland Anglehart Sr., Roland Anglehart Jr.,
Bernard Arseneault, Héliodore Aucoin, Albert Benoît,
Robert Boucher, Elide Bulger, Gérard Cassivi,
Jean‑Gilles Chiasson, Ludger Chiasson,
Martin M. Chiasson, Rémi Chiasson,
2973‑0819 Québec inc., 2973‑1288 Québec inc.,
3087‑5199 Québec inc., Robert Collin, Roméo G. Cormier,
Marc Couture, Les Crustacées de Gaspé ltée,
Lino Desbois, Randy Deveau, Carol Duguay,
Charles‑Aimé Duguay, Denis Duguay, Donald Duguay,
Marius Duguay, Edgar Ferron, Armand Fiset,
Livain Foulem, Claude Gionest, Jocelyn Gionet,
Simon J. Gionet, Aurèle Godin, Valois Goupil,
Aurélien Haché, Donald R. Haché, Gaëtan Haché,
Guy Haché, Jacques E. Haché, Jason‑Sylvain Haché,
Jean‑Pierre Haché, Jacques A. Haché, René Haché,
Rhéal Haché, Robert F. Haché, Alban Hautcoeur,
Fernand Hautcoeur, Jean‑Claude Hautcoeur,
Gregg Hinkley, Jean‑Pierre Huard, Réjean Leblanc,
Christian Lelièvre, Elphège Lelièvre, Jean‑Elie Lelièvre,
Jules Lelièvre, Dassise Mallet, Delphis Mallet, Francis Mallet,
Jean‑Marc Marcoux, André Mazerolle, Eddy Mazerolle,
Gilles A. Noël, Lévis Noël, Martin Noël, Nicolas Noël,
Onésime Noël, Raymond Noël, Francis Parisé, Domitien Paulin,
Sylvain Paulin, Pêcheries Denise Quinn Syvrais inc.,
Pêcheries François inc., Pêcheries Jean‑Yan II inc.,
Pêcheries Jimmy L. ltée, Pêcheries J.V.L. ltée,
Pêcheries Ray‑L. inc., Les Pêcheries Serge‑Luc inc.,
Roger Pinel, Claude Poirier, Produits Belle Baie ltée,
Adrien Roussel, Jean‑Camille Roussel, Mathias Roussel,
Steven Roussy, Mario Savoie, Succession of Jean‑Pierre Robichaud,
Succession of Lucien Chiasson, Succession of Sylva Haché,
Jean‑Marc Sweeney, Michel Turbide, Réal Turbide,
Donat Vienneau, Fernand Vienneau, Livain Vienneau
and Rhéal Vienneau Interveners
Indexed as: Canada (Attorney General) v. McArthur
2010 SCC 63
File No.: 33043.
2010: January 20; 2010: December 23.
Present: Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Courts — Jurisdiction — Provincial superior courts — Action brought against Crown and federal official in Superior Court of Ontario seeking constitutional remedies and damages for wrongful or false imprisonment and for intentional or negligent infliction of emotional and mental distress — Whether plaintiff entitled to proceed by way of action in Superior Court of Ontario without first proceeding by way of judicial review in Federal Court — Federal Courts Act, R.S.C. 1985, c. F‑7, ss. 17, 18; Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50, s. 21.
Between 1994 and 1999, M spent approximately four years and six months in solitary confinement, segregation or in a special handling unit on instructions of B or other federal employees for whom the Crown is responsible. He did not seek to set aside the prison orders, but some years later filed a statement of claim in the Ontario Superior Court seeking damages and alleging that his detention had been arbitrary and constituted cruel and unusual punishment, contrary to the Canadian Charter of Rights and Freedoms. He claimed to have suffered severe emotional and psychological injury and harm. He also alleged that the decisions to place him in solitary confinement were made deliberately and maliciously or negligently. The Superior Court dismissed the claim on the basis of Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287, but the Court of Appeal overturned the decision on the ground that relief by way of damages was available in the superior court.
Held: The appeal should be dismissed.
For the reasons set out in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, a textual, contextual and purposive interpretation of the Federal Courts Act does not support the view that a plaintiff who claims to have suffered compensable loss as a result of an administrative decision must first have the lawfulness of the decision determined by the Federal Court. Further, the Federal Courts Act does not prevent provincial superior court scrutiny of the constitutionality of the conduct of federal officials. Here, the Superior Court is authorized to consider the validity of M’s detention in the context of his damages claim, as well as the impact, if any, of any valid detention orders on Crown liability. The collateral attack doctrine does not support the Attorney General’s jurisdictional challenge in light of the explicit statutory grant of jurisdiction to the provincial superior courts in the Federal Courts Act where “relief is claimed against the [federal] Crown” as well as the provisions of the Crown Liability and Proceedings Act.
Cases Cited
Applied: Canada (Attorney General) v. TeleZone, 2010 SCC 62; overruled: Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287; referred to: Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Morgentaler (1984), 41 C.R. (3d) 262; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 9, 12, 24(1).
Constitution Act, 1867, s. 101.
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 3, 31, 32, 33.
Corrections and Conditional Release Regulations, SOR/92‑620, ss. 21, 22.
Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50, s. 21.
Federal Courts Act, R.S.C. 1985, c. F‑7, ss. 17, 18.
APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Borins and Feldman JJ.A.), 2008 ONCA 892, 94 O.R. (3d) 19, 303 D.L.R. (4th) 626, 245 O.A.C. 91, 86 Admin L.R. (4th) 163, 40 C.E.L.R. (3d) 183, [2008] O.J. No. 5291 (QL), 2008 CarswellOnt 7826, setting aside a decision of Pedlar J., 2006 CarswellOnt 9820. Appeal dismissed.
Christopher M. Rupar, Alain Préfontaine and Bernard Letarte, for the appellants.
John A. Ryder‑Burbidge, for the respondent.
Written submissions only by the intervener the Attorney General of British Columbia.
Patrick Ferland and David Quesnel, for the interveners Roland Anglehart Sr. et al.
The judgment of the Court was delivered by
Binnie J. —
[1] The question raised by this appeal is whether a prison inmate who seeks damages in the Ontario Superior Court of Justice against federal prison authorities for arbitrary detention and alleged mistreatment over a decade ago must first seek judicial review in the Federal Court to quash the segregation orders that are the basis of his claim.
[2] As in the companion case of Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, released concurrently, the Attorney General of Canada characterizes the damages claim as a collateral attack on an administrative decision, here the segregation orders, and contests the jurisdiction of the provincial superior court to proceed unless and until the orders are set aside by the Federal Court. Until that happens, he says, the Crown and its servants are fully protected from liability by the statutory authority granted by the Corrections and Conditional Release Act, S.C. 1992, c. 20. For the reasons given in TeleZone I believe this objection to provincial superior court jurisdiction is not well founded. The Ontario Court of Appeal so held. I agree with that decision. I would dismiss the appeal.
I. Facts
[3] In October 1994, while on parole in respect of a previous conviction, Mr. McArthur was arrested and charged with numerous offences including robbery, kidnapping, attempted murder and assault causing bodily harm. He was brought to Millhaven, a federal institution, to await trial. The appellant James Blackler was the warden of Millhaven at that time. According to the allegations in the amended statement of claim, which for present purposes are to be taken as capable of proof, Mr. McArthur was kept in solitary confinement for approximately 18 months at Millhaven on the instructions of Mr. Blackler or other federal employees for whom the Crown is responsible.
[4] In May 1996, Mr. McArthur was voluntarily transferred from Millhaven to the Kingston Penitentiary. Just prior to Mr. McArthur’s arrival there, Mr. Blackler became the warden of the penitentiary and, so it is alleged in the amended statement of claim, caused Mr. McArthur to be placed in solitary confinement for another 14 months. This was all done, it is alleged, with “animus and malicious ill-will (sic)” (para. 24).
[5] Subsequently, the Correctional Service of Canada (“CSC”) transferred Mr. McArthur to the Special Handling Unit at Ste. Anne des Plaines, where he was again put in solitary confinement, this time for four months. In total, Mr. McArthur spent approximately four years and six months in solitary confinement, segregation or in a special handling unit between 1994 and 1999.
[6] Mr. McArthur alleges that he suffered losses as a result of four years and six months of involuntary solitary confinement in the form of “severe emotional and psychological injury and harm” (para. 26 (emphasis in original)). He was denied private family visits “routinely granted to other inmates whose circumstances [were] similar” (para. 24) as well as schooling, rehabilitation programs and “inmate leisure activities” (para. 25). Moreover, he says the same actions caused his wife and his daughter to suffer severe emotional and psychological harm, as “they were denied contacts and visits with [him] routinely granted to other inmates” (para. 26).
[7] Mr. McArthur insists that his detention in solitary confinement (sometimes referred to as a “prison within a prison”) was arbitrary and constituted cruel and unusual punishment, contrary to ss. 9 and 12 of the Canadian Charter of Rights and Freedoms. He further alleges that the respondents failed to comply with the Corrections and Conditional Release Act, which, together with its regulations and the directives of the Commissioner of Corrections, governs the circumstances in which an inmate may be placed in solitary confinement. Mr. McArthur alleges the series of decisions to place and retain him in solitary confinement for such an extensive period of time was made deliberately and maliciously, or, in the alternative, negligently. He seeks damages for wrongful or false imprisonment, and for the intentional or negligent infliction of emotional and mental distress. Mr. McArthur does not seek to set aside the segregation orders, whose practical effects were exhausted over 10 years ago when he was eventually released from solitary confinement.
II. Judicial History
A. Superior Court of Ontario (Pedlar J.), 2006 Carswell 9820
[8] The motions judge accepted the Attorney General’s argument based on the decision of the Federal Court of Appeal in Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287, which was decided on similar facts. He concluded that to permit the damages action to proceed in the Superior Court would disregard or deny the intention clearly expressed by Parliament in the Federal Courts Act, R.S.C. 1985, c. F-7, to grant the Federal Court exclusive jurisdiction in matters of judicial review. Accordingly, a plaintiff who claims to have suffered compensable loss as a result of an administrative decision must first have the lawfulness of the decision determined by the Federal Court. The motions judge stated, “I don’t think the Ontario Superior Court has jurisdiction until that’s done” (para. 8).
B. Ontario Court of Appeal (Laskin, Borins and Feldman JJ.A.),2008 ONCA 892, 94 O.R. (3d) 19
[9] In a unanimous decision authored by Borins J.A., the court concluded that “Grenier was not correctly decided” (para. 100). The Attorney General had not established that the plaintiff’s claims fit “squarely within s. 18(1)” (para. 94) of the Federal Courts Act which, in the court’s view, is concerned with remedies:
In none of the cases is a remedy sought that comes within the prerogative writs or extraordinary remedies of s. 18. Section 18 does not empower the Federal Court to award damages, which are sought [here].
. . .
. . . Causes of action in contract or tort are distinct from the prerogative writs and extraordinary remedies described in s. 18. Shortly put, relief by way of damages is not a form of relief contemplated by s. 18. [paras. 94-95]
Accordingly, the appeal was allowed.
III. Relevant Provisions
[10] Corrections and Conditional Release Act, S.C. 1992, c. 20
3. [Purpose of correctional system] The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
Administrative Segregation
31. (1) [Purpose] The purpose of administrative segregation is to keep an inmate from associating with the general inmate population.
(2) [Duration] Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time.
(3) [Grounds for confining inmate in administrative segregation] The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds
(a) that
(i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and
(ii) the continued presence of the inmate in the general inmate population would jeopardize the security of the penitentiary or the safety of any person,
(b) that the continued presence of the inmate in the general inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence, or
(c) that the continued presence of the inmate in the general inmate population would jeopardize the inmate’s own safety, and the institutional head is satisfied that there is no reasonable alternative to administrative segregation.
32. [Considerations governing release] All recommendations to the institutional head referred to in paragraph 33(1)(c) and all decisions by the institutional head to release or not to release an inmate from administrative segregation shall be based on the considerations set out in section 31.
33. (1) [Case to be reviewed] Where an inmate is involuntarily confined in administrative segregation, a person or persons designated by the institutional head shall
(a) conduct, at the prescribed time and in the prescribed manner, a hearing to review the inmate’s case;
(b) conduct, at prescribed times and in the prescribed manner, further regular hearings to review the inmate’s case; and
(c) recommend to the institutional head, after the hearing mentioned in paragraph (a) and after each hearing mentioned in paragraph (b), whether or not the inmate should be released from administrative segregation.
Corrections and Conditional Release Regulations, SOR/92-620
21. (1) Where an inmate is involuntarily confined in administrative segregation, the institutional head shall ensure that the person or persons referred to in section 33 of the Act who have been designated by the institutional head, which person or persons shall be known as a Segregation Review Board, are informed of the involuntary confinement.
(2) A Segregation Review Board referred to in subsection (1) shall conduct a hearing
(a) within five working days after the inmate’s confinement in administrative segregation; and
(b) at least once every 30 days thereafter that the inmate remains in administrative segregation.
(3) The institutional head shall ensure that an inmate who is the subject of a Segregation Review Board hearing pursuant to subsection (2)
(a) is given, at least three working days before the hearing, notice in writing of the hearing and the information that the Board will be considering at the hearing;
(b) is given an opportunity to be present and to make representations at the hearing; and
(c) is advised in writing of the Board’s recommendation to the institutional head and the reasons for the recommendation.
22. Where an inmate is confined in administrative segregation, the head of the region or a staff member in the regional headquarters who is designated by the head of the region shall review the inmate’s case at least once every 60 days that the inmate remains in administrative segregation to determine whether, based on the considerations set out in section 31 of the Act, the administrative segregation of the inmate continues to be justified.
A. Analysis
[11] The important principle at stake in this appeal, as in TeleZone, is access to justice. With some notable exceptions, prison inmates are not rich people. Few can afford the luxury of a front-end judicial review procedure to argue about the validity of a segregation order already served where quashing the order is no longer of practical interest. Mr. McArthur may have some interest in the good governance of the prison system but at the moment he is looking for compensation. He may not get it, of course, but he ought to be given his day in court without being put through unnecessary and unproductive proceedings unless the applicable statutes clearly and explicitly compel him to detour to the Federal Court.
[12] For the reasons set out in the companion case of TeleZone, I believe that the Attorney General’s argument exaggerates the legal effect of the grant in s. 18 of the Federal Courts Act of exclusive judicial review jurisdiction over federal decision makers. A textual, contextual and purposive interpretation of the Federal Courts Act does not support his case.
[13] As noted by the motions judge, the facts of this case closely resemble Grenier. In his amended statement of claim, Mr. McArthur pleads that the segregation orders were made “without just cause or excuse” (para. 12) and lacked “the reasonable grounds required under subsection 31(3) of the Act to justify placing [him] in involuntary administrative segregation” (para. 15). Clearly, he is putting in issue the lawfulness or validity of the segregation orders, but he does so as an element of a private law cause of action over which the provincial superior court has jurisdiction. There is nothing in the federal legislation that says the provincial courts can only determine some — but not all — elements of his monetary claims against the Crown.
[14] Moreover, the provincial superior court clearly has jurisdiction to hear Mr. McArthur’s claim for compensation under s. 24(1) of the Charter. In Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, an argument was made on behalf of the federal Crown that because constitutional relief was sought against federal officials (including the Director of Investigation and Research under the federal Combines Investigation Act, R.S.C. 1970, c. C-23, now repealed), all of whom fell within the definition of “federal board, commission or other tribunal”, the Federal Courts Act (at the time titled Federal Court Act) had successfully ousted the jurisdiction of the British Columbia Supreme Court. This Court concluded that Parliament could not, by giving exclusive jurisdiction to the Federal Court over federal officials, deny the provincial superior courts their traditional subject matter jurisdiction over constitutional issues. In my opinion, the Federal Courts Act equally cannot operate to prevent provincial superior court scrutiny of the constitutionality of the conduct of federal officials. Section 101 of the Constitution Act, 1867, authorizes the creation of “additional Courts for the better Administration of the Laws of Canada”. The provincial superior courts retain their historic jurisdiction over the Constitution. This does not preclude concurrent jurisdiction over constitutional subject matters in the Federal Court, of course, but it is not and cannot be made exclusive. Accordingly, quite apart from s. 17 of the Federal Courts Act, the Ontario Superior Court had jurisdiction to deal with Mr. McArthur’s Charter claim.
[15] Clearly, an issue before the Superior Court is whether the Crown defendants are covered by a defence of statutory authority, i.e., that the administrative segregation orders were lawfully made and that the emotional and psychological trauma allegedly suffered by Mr. McArthur were an inevitable risk of his lawful detention in solitary confinement. Since this is the case, the Attorney General argues, the claimed losses are not actionable. However, with respect, the Superior Court can readily consider the validity of Mr. McArthur’s detention in the context of a damages claim, as well as the impact, if any, of a valid order on Crown liability.
[16] While Mr. McArthur’s damages claim could be characterized in some sense as a “collateral attack” on the segregation orders, I do not believe that such an “attack” is precluded by the Federal Courts Act. Government decision making lies at the heart of many, if not most claims to recover financial loss from the Crown. For the reasons outlined in TeleZone I believe that the explicit statutory grant of jurisdiction to the provincial superior courts in respect of claims against the Crown in s. 17 of the Federal Courts Act and s. 21 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, renders the collateral attack doctrine inapplicable here.
[17] The Superior Court has jurisdiction to entertain Mr. McArthur’s damages claim (both in its tort and constitutional aspects) because its authority extends to “the person and the subject matter in question and, in addition, [because it] has authority to make the order sought”: Mills v. The Queen, [1986] 1 S.C.R. 863, per McIntyre J., at p. 960, quoting Brooke J.A. in R. v. Morgentaler (1984), 41 C.R. (3d) 262, at p. 271, and per Lamer J., at p. 890. See also R. v. Rahey, [1987] 1 S.C.R. 588, at p. 603; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 15; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765. There is nothing in the Federal Courts Act to give the Federal Court the exclusive jurisdiction to determine the lawfulness or validity of the order of a “federal board, commission or other tribunal” when Mr. McArthur does not seek any of the remedies listed in s. 18 of the Federal Courts Act, and when the practical effects of the segregation orders he complains of are spent, and such orders are now simply one element in a private law cause of action against the Crown and a federal official. To hold otherwise would undermine an explicit statutory grant of jurisdiction to the superior courts of the provinces and would be for formalistic reasons that are neither compelling nor consistent with promotion of access to justice in a direct and cost efficient manner.
IV. Conclusion
[18] I would dismiss the appeal with costs throughout to Mr. McArthur and order that the Superior Court has jurisdiction over his claim.
Appeal dismissed with costs.
Solicitor for the appellants: Deputy Attorney General of Canada, Ottawa.
Solicitors for the respondent: Ryder‑Burbidge Hurley Fasano, Kingston.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Vancouver.
Solicitors for the interveners Roland Anglehart Sr. et al.: Heenan Blaikie, Montréal.
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