A politician's death and the media

Since yesterday’s sad news that Jack Layton had died, his story has (rightly) been the primary focus of the news media and, indeed, the country. Within this context a debate has emerged surrounding the question of media coverage, particularly as it pertains to the generally uncritical nature of the commentary. This was sparked largely by a column written yesterday by the National Post’s Christie Blatchford, who criticized the “public spectacle” and even the letter Layton wrote to Canadians prior to his death. After an online backlash, her colleague Jonathan Kay came to her defense, describing her critiques as an example of “courage” and “guts”.

It is true that certain elements of yesterday’s coverage were a little silly, especially if you ignore the context. I’ll admit I rolled my eyes when the CBC’s Evan Soloman obliquely criticized the Prime Minister for including comments about the Resolute Bay plane crash and Libya in his public statement on Layton (some on Twitter were outraged Harper had mentioned these other significant events, but what was he to do, hold separate statements? Frankly, there was nothing offensive about how the PM handled things). And to be sure, some of the praise lavished on Layton was based more on the perfectly natural outpouring of emotion rather than cold analytical/critical thought. I saw statements that basically credited Layton with inventing the bicycle. Peter Mansbridge even gave credit to Layton for the withdrawal of Canadian forces from Afghanistan, saying Layton had called for Canada to get out – and look, we have! (six years after Layton first argued for it).

But these are inconsequential “problems” – I made no comment about them yesterday because as someone with a smidgen of empathy and logic I’m able to recognize that the purpose of the coverage was to highlight the attributes and interests of one of the most important political figures of our day – not to critically dissect him or his ideas. That’s not to say that history ought to write the most favourable account of deceased politicians. Criticism is important, but quite frankly so is taking a day to recognize, highlight and yes, praise, someone who spent his days trying to make Canada better. There is plenty of time to get back to critiquing Layton’s decisions and policy positions.

For Blatchford this was all too much. Worse still, everyone was quoting from the letter that Layton had dared write in his final days. How dare he leave a message? “Who thinks to leave a 1,000-word missive meant for public consumption and released by his family?” she asks. “Who seriously writes of himself, “All my life I have worked to make things better”?”

I only have questions of my own in response: Who begrudges someone their final words? Who contemptuously spits on the way other people mourn? Who can’t wait a day or two to offer some “perspective” on events?

Kay attempts to answer these questions when he comes to Blatchford’s defense. From his point of view, Blatchford is the lone, courageous voice of sanity in a sea of mindless praise for the dead politician. The headline on Kay’s post is “Who has the guts to call out Layton’s cynical manifesto?”

Cynical manifesto. Of course, by now you’ve all been exposed to the dreaded cynicism against which Blatchford and Kay are so courageously defending us from: “My friends, love is better than anger. Hope is better than fear. Optimism is better than despair. So let us be loving, hopeful and optimistic. And we’ll change the world.”

Cynical indeed.

On the right to vote

As I am currently living abroad, I recently familiarized myself with Elections Canada’s rules regarding special ballot provisions so that I could vote in the federal election. It was only then that I discovered with some surprise that Canadian citizens who have lived outside of Canada for more than five years are ineligible to vote (with the exception of employees of the Canadian federal or provincial governments, certain international organizations, and members of the Canadian Forces – and members of their families). 

While the rule doesn’t apply to me because I haven’t been away that long, over the past few days I’ve seen a few other people on Twitter mention surprise at discovering they were unable to vote. (Apparently the rule has been interpreted by Elections Canada in the past to allow people to vote so long as they had visited Canada within the preceding five years, but this is no longer the case). 

My initial reaction was to suggest with near certainty that any Charter of Rights challenge to this provision of the Canada Elections Act would be successful. To my knowledge, no challenge to the federal law has been made since it was first enacted in 1993. In the leading Supreme Court case on the right to vote under s. 3 of the Charter, the justices took a virtually absolutist position on voting rights when it struck down prohibitions on prisoner voting. The Court actually dealt with this issue twice: first in 1993 when it struck down a total ban, and then in 2002 when a sharply divided Court invalidated the federal response legislation which prohibited from voting prisoners sentenced to two or more years. The majority reasons in the 2002 case effectively say that there are no reasonable limitations on prisoner voting. In other cases the Court has also struck down provisions that prohibited federal judges from voting, and that deprived people with certain mental illnesses from voting. 

Not all Charter claims win out. One petitioner lost his challenge to a Quebec law that required at least six months residency in the province to be allowed to vote in the Charlottetown Accord referendum (which was federally administered across Canada except in Quebec, where the vote was administered provincially). The Court determined that the Charter’s voting rights only applied to elections, not referenda (questionable reasoning, but it doesn’t really apply to the rule I’m discussing). 

However, I’ve now comes across important lower court cases that make me less sure that a Charter challenge to the five-year residency rule would be accepted by the courts. In separate cases, laws relating to residency rules for elections in Ontario, Saskatchewan and the Yukon have been upheld as constitutional (there may be cases relating to other provinces, but these are what a quick search generated). In all three cases, the relevant laws required a six-month residency prior to the election for residents to be eligible to vote. In all three cases the justices upheld the restriction as a reasonable limit on voting rights. 

Although now I’m less certain, I still believe that the current Supreme Court would strike down the five-year requirement for voting in federal elections. First, none of these other cases appear to have been appealed to the Supreme Court (it’s possible the Court declined to grant leave to any of those appeals, but I don’t think that’s the case). The Supreme Court isn’t shy about overturning lower courts, especially on highly salient issues like this. 

Second, and more importantly, I think one can draw an important distinction between provincial residency and national residency. Residency requirements are more legitimate at the provincial level because few would accept the notion that one could vote in one province while residing (and voting) in another. Indeed, this latter point applies to any number of government services, like public health insurance: benefitting from services from multiple provinces simultaneously shouldn’t be permitted, and is generally conditional on residency. On a broader level, it’s important to recognize that voting is a right of citizenship, and our citizenship is tied to the national level of government, not the provincial one (Quebec sovereigntists would disagree, but alas). This is not to say that federal elections are more important than provincial ones, but it is important to recognize that citizenship represents a nearly immutable attachment to one’s society that I think supercedes the rights and responsibilities implied by mere residency. 

This logic might extend to those critical of dual citizenship (after all, why should one be permitted to vote in multiple countries but not multiple provinces). I think the question of dual citizenship is a separate issue. Nothing in the Charter would necessarily require Canada to recognize dual citizenship, for example. That said, I don’t think the Court would need to entertain that particular question in order to rule on the five-year requirement at issue here.

NHL Playoffs: 1st Round Predictions

It's that time of year - the 1st Round of the NHL Playoffs are upon us. Here are my predictions:

EASTERN CONFERENCE

Washington (1) v. NY Rangers (8): Rangers in 7

I'm starting off with a big upset pick. Despite winning the East, the Capitals have been wildly inconsistent all year. This isn't a team built for the playoffs. Coach Bruce Boudreau has got them playing a better, more cohesive defensive system this year than last, but that's not saying much. Also, their goaltending is on the weaker side among the other Eastern playoff teams. The Rangers have one of the best goalies in the league and despite offensive struggles, scored more goals than the Caps all season. New York also outmatches the Caps in size, toughness and night-to-night EFFORT. That said, the Rangers need to watch out for Washington's speed and skill - two things which might end up making my upset pick look like a joke.

Philadelphia (2) v. Buffalo (7): Flyers in 5

The Flyers are arguably the most stacked team in the NHL, especially up front. Given the Sabres' injury woes this year, I'm surprised they made the playoffs, to be honest. Also, Ryan Miller - usually one of the league's top goalies - had a subpar year to say the least. Even though Philly had a fairly weak finish to the regular season, I'm looking for them to roll over the Sabres in short order.

Boston (3) v. Montreal (6): Habs in 7

Easily the most anticipated 1st round series of the playoffs, and you don't have to be a Canadiens fan like me to say that. Underlying the series is a deep-seated hatred between the two clubs, only intensified by the Chara hit on Pacioretty just over a month ago. Though this is arguably a heart-over-head type of prediction, I don't think it's ludicrous by any means to see Montreal coming out on top. Despite Tim Thomas' insane numbers in the first half of the season, he was very much human in the second half. If Carey Price can match the brilliant consistency he's had all year, the goaltending in this series is a wash. Montreal proved they can play against a deep and tough team like Boston by winning the regular season series 4-2. The key will be discipline. If the Habs are sloppy, they're toast. The Habs have done a remarkable job showing they can play solid D all season long without Markov or Gorges. Provided the Habs scorers show up - especially Plekanec, Gionta, and Cammalleri - beating Boston will become more reality than sweet, sweet fantasy.

Pittsburgh (4) v. Tampa Bay (5): Lightning in 6

It's really impressive how well the Penguins have played without leading scorers Crosby and Malkin. They've done a particularly good job from a defensive standpoint. Moreover, goalie Fleury easily outmatches the weak set of guys the Lightning have between the pipes. That said, I think Tampa is so stacked offensively that they can push by Pittsburgh. Perhaps most importantly, there's no sign of Crosby returning in the 1st round; despite being symptom free and doing full workouts, Crosby has yet to be cleared for contact in practice. If he had been available, I think he would've tipped the scales the other way. Since he's not, look for Stamkos, Lecavalier et al to lead the Lightning to victory.


WESTERN CONFERENCE

Vancouver (1) v. Chicago (8): Canucks in 5

Vancouver fans should be salivating at facing the defending Stanley Cup champions - a team that has given them the fits in recent playoffs past. Missing many of the big role players that helped them win last year, Chicago doesn't stand a chance against a team that's been firing on all cylinders for nearly the entire season. With two deadly scoring lines, a strong D and Luongo looking like himself, Chicago - who barely squeaked into the playoffs - are looking at a quick and merciless early exit.

San Jose (2) v. Los Angeles (7): Sharks in 6

Losing Kopitar to an injury a couple of weeks ago seems to have done something to the Kings' psyche. For most of this season I might've picked LA over San Jose with little thought. But San Jose had the offensive edge to begin with, and momentum is a big deal in hockey. Look for Niemi, who helped the 'Hawks win it all last year, to outperform the inconsistent Jonathan Quick for a 1st round win.

Detroit (3) v. Phoenix (6): Red Wings in 5

I'm almost more interested to see if the Coyotes will even be able to sellout their playoff home games. Phoenix has the edge in goaltending here (in fact, I don't think Howard will even get Detroit out of the 2nd Round), but in every other category the Wings simply dominate. Time to move this franchise back to Canada, Gary.

Anaheim (4) v. Nashville (5): Ducks in 6

A lot of people are picking Nashville as a potential dark horse candidate this year. Certainly the play of Pikka Rinne gives them a shot at stealing a series. But let's be honest, their top scorer is Sergei Kostitsyn. It's an incredible turnaround for a kid who last year rode more pine than a lumberjack, but his 23 goals doesn't exactly match the output of guys on Anaheim like Corey Perry (50), Teemu Selanne (31) and Bobby Ryan (34). Maybe Rinne will work some magic, but I just don't see the Predators overcoming the odds.

On Judicial Accountability...

Today I got into a debate on Twitter with the Ottawa Citizen’s Dan Gardner over a Manitoba judge’s failure to sentence a rapist to prison because of his victim’s “promiscuous” behaviour and “suggestive” attire. The judge, Justice Robert Dewar, determined that “sex was in the air” because the victim had been flirtatious and dressed provocatively. This rather disgusting logic has long been repudiated, which is no doubt why the case has received a lot of coverage today.

Gardner’s original tweets about the story focused on the news coverage of the case, and he quite rightly pointed out that: 1) this decision is likely to be overturned on appeal, and 2) the outraged news coverage about the original decision won’t come close to being matched by any coverage (if it’s covered at all) of the backwards, dangerous decision being rectified by the appellate court. Gardner was correct that controversies – particularly ones implicating the justice system – often garner wide attention but decisions that are later fixed rarely receive similar amounts of coverage. And his point is important. He expressed concern that when the media emphasizes controversy and all but ignores subsequent corrections by the justice systems, it damages the reputation of the system itself.

It was here that I interjected and our debate began, as I felt this judicial decision is by itself bad enough to damage the justice system because the judge is unlikely to face professional consequences like suspension or dismissal (although he is facing the temporary consequence of public outrage). I argued that the judge ought to face discipline - I would go so far as to argue for his dismissal so long as the news reports of his reasoning is accurate (I’m thus far unable to find a copy of the decision itself) – but Gardner, without defending the decision itself, argued that would be overly harsh for a single “mistake” or human error.

There is no doubt that judges are human beings who will make mistakes in law, in logic and even in common sense. Courts make a lot of decisions that many people would disagree with, though these tend to involve disputes over policy ideas or competing values or rights. But in my view some decisions are so egregiously bad that judges ought to be held accountable for flagrant violations of justice.

Indeed, I would argue that calling this decision a “mistake” or “controversial” is far too generous. If the person you hired to build your house misses a shingle on the roof and it leaks, that’s a mistake. If he uses sand for the foundation instead of cement, then it’s incompetence.

The Supreme Court of Canada spent much of the 1980s and 1990s itself struggling with the blatant misrepresentations and prejudices involving victims of sexual assault. Ultimately, however, the Court addressed the backwards, infantile and sexist notions that would lead a judge to describe a rapist as just a “clumsy Don Juan” like Justice Dewar allegedly did. Most importantly, the Court’s decisions – like in the Ewanchuk case, which explicitly repudiates the notion of “implied consent” in sexual assault cases – have established a precedent that such considerations have no place under Canadian law, and I would argue that includes sentencing determinations.

The judge in this instant has ignored – whether purposefully or through incompetence – what the highest court has held on such matters. The idea that a woman is somehow less of a victim because of how she dresses or that rape is less of a crime because the man thinks prior actions make “no” mean “yes” isn’t just offensive, it’s dangerous and completely contrary to basic notions of justice in contemporary Canada. This isn’t just a matter of a judge having a bad day, committing an error, or getting “the law” wrong. This is a serious breach of his most basic duty.

I’m not arguing that judicial accountability should mean judges can’t make mistakes, which they undoubtedly will. But gross incompetence by a member of the judiciary should be treated no differently than the HR rep who refuses to hire visible minorities or the babysitter that loses your kid. In other words, a judge who evidences such hopelessly appalling judgment should not be allowed to hold onto the job.

Fun with Polls and the Egyptian Protests

The Globe and Mail has a story on a public opinion poll conducted in Egypt last year. The results are of the type that make you wonder several things, among them how disordered and conflicting people's views can be on large issues of governance, religion and policy.

Take, for instance, the poll's results on Islam and politics: 95% of respondents say it's good that Islam plays a large role in politics, while 85% say Islam's influence on politics is good. This means that 10% of people are happy Islam has a role in politics don't think it necessarily has a positive influence. Now, this isn't necessarily contradictory, but it is one of those poll results that makes you wonder what exactly those 10% of people think.

Even more interesting are the results on "Islamist extremism": 61% of respondents are concerned or very concerned about Islamist extremism in Egypt, but 84% believe apostates from Islam deserve the death penalty and 82% that adulterers should be stoned. Clearly this suggests that there are a sizable proportion of Egyptians who view "Islamist extremism" as simply terrorism as opposed to extreme or radical views rooted in religious belief. Otherwise the results make little sense (although a case might be made they still don't).

What do these results mean for Egypt in light of the current protests? I wouldn't want to hazard a guess. But the current debate about the situation there, at least among pundits/commentators in the West, seems to be polarized among those who view losing Mubarak, a Western ally, as threatening and therefore express dismay at what's happening on the ground, and those who view the calls for democracy in an unabashedly positive light.

I don't see why we can't support the calls for democracy - after all, the Mubarak regime is undoubtedly indefensible - while at the same time have some concern about what type of government may result. Personally, these poll results only reinforce this view.

The kirpan kerfuffle and the elephant in the room...

The decision by the Quebec National Assembly’s crack security team to deny entry to a group of Sikhs wearing the kirpan – a ceremonial dagger – has unsurprisingly caused yet another set of waves in the reasonable accommodation debate. The PQ and Bloc were quick to jump on the issue (anything to remind Canadians that Quebec doesn’t buy into “Canadian values” like multiculturalism). 

Pundits and advocates were quick to jump into their respective corners, defending security concerns, religious freedom, multiculturalism, etc. Amid the accusations of racism countered by accusations of reverse-racism or political correctness, everyone claimed ownership of the “common sense” view. It was all sooo predictable (and occasionally embarrassing, like the CBC debate between Tarek Fatah of the Muslim Canadian Congress, who seemed to be as concerned about the kirpan being “offensive” as he was about security issues, and Michael Coren, who came off as though he believes respect for religion overrides anything else).

While not entirely lost in all of this, the fact that the Supreme Court has already ruled on the kirpan-as-security-threat issue seems to have been acknowledged and quickly ignored. Although the 2006 ruling considered a student’s right to wear a kirpan to school, the case quite clearly applies (indeed, schools and legislatures are much more comparable than say, airplanes, which have more direct and pressing security concerns. For that reason I’d say any attempt to argue the 2006 decision doesn’t apply here is tenuous at best). In effect, the Quebec legislature acted unconstitutionally when it denied entry to its Sikh visitors. 

Without wading into whether the Court reached the “correct” result, it is important to point out that there are only a couple of options open to the Quebec government if it indeed wishes to ban the kirpan from public spaces like legislatures and schools. The government might choose to pass legislation that specifies when a potentially dangerous but religiously-important object cannot be carried, and wait to see if such a law survives the inevitable Charter challenge. Another option would be to simply pass such legislation while invoking the notwithstanding clause, effectively removing the issue from the purview of the courts. 

Either of these, in my view would be legitimate. What governments cannot do is simply ignore the Court’s prior ruling. I’d hardly go so far as to say this is some type of constitutional crisis, but rightly or wrongly we’ve instituted judicial review of rights in Canada. I can’t help but wonder if people are hesitant to make a big deal out of the flouting of the Supreme Court because we’re talking about Quebec…