Comment on Bill C-279 Amending CCC, CHRA inclusion of Gender Identity and Expression

On Wednesday the House of Commons will vote for a third time on Bill C-279 . The purpose of this Bill is to amend the Canadian Human Rights Act (CHRA) and the Criminal Code of Canada (CCC) to include the words, gender identity and gender expression. If it passes then it will be illegal to discriminate against people on the basis of gender expression and identity; and it adds this wording  to cover in CCC section 318 "Hate Propaganda" (4) identifiable groups; and section 718.2 CCC on sentencing.

The effect is to protect Trans people from discrimination and hate crimes. If you read the purpose of the CHRA, the amendment is in keeping with the Acts stated purpose. The changes made to the CCC are reasonable as they merely reflect the changes being made to the CHRA.

There is nothing novel in expanding Human rights coverage to Trans people. Since the Acts inception in 1977 it has been altered to prevent discrimination on the basis of Sexuality, amended to include hate communication (recently that was repealed, C-304 also know as "Protecting Freedom"). It was also changed to include First Nations people. I am of the opinion that a Human Rights Act should be as expansive as is necessary to ensure Canadian citizens are as free from discrimination as we can manage.

Great news! As I write this commentary C-279 has passed third reading by a vote of 149-137 and is off to the Senate. My congratulations to the bill's sponsor NDP Randall Garrison. I noticed my MP Rick Dykstra voted nay on second reading, I hope he changed his mind this time around.

This Bill has received some opposition from the likes of the Campaign For Life, a small anti -choice group. Canada Family Action, which should not surprise anyone who reads the Section called "what we stand for",

Canada Family Action Coalition has a vision to see Christian principles applied in Canadian law, politics and society.

Christian principles applied to Canadian Law, I don't blame you for the shiver you just felt after reading that. The Bill to expand Human rights coverage to Trans people has Gained the moniker "the Bathroom Bill from its opponents. The opposition has come at C-279 in two ways an appeal to reason and a panicked shortness of breath. The first and only attempt at reasonable discourse is the suggestion that the new terms are "undefined" and would task Judges to interpret the law, Conservatives religious or otherwise are not happy with Judges interpreting law. I'm not sure exactly how you might misinterpret Gender Identity and Expression. It seems clear Identity being what gender you feel you are and expression being how you show that in your outward appearance. 

They are also concerned over potential "costs" associated with this Bill, additional bathrooms, human rights complaints( these people are not fans of the Tribunals); increased Heath care spending; and violations of the CCC . But these are really a throw away points like when  MPs Warawa andWoodworth  talk about supporting women's rights or science to promote back door anti-choice motions like motions 408 and 312. Their intention is to end Reproductive Choice.

The bread and butter points for this group of religious conservatives, (self described), are the children, women but not so much men. Children might be taught about tolerance or shudder,  understanding and acceptance of trans people. We don't want to confuse children, but I see the confusion arising perhaps from being taught one thing at home and another in school or the wider world. 

All arguments resolve into the meaning behind  the appellation "Bathroom Bill" attached to this amendment by those in opposition. If this Bill passes, women and children, will face assaults in bathrooms and showers across Canada. A  Mr. McVety considers the bill "a danger to our children". He describes a situation, 

If gender identity is enshrined in the Criminal Code of Canada, any male at any time will be permitted in girls bathrooms, showers and change rooms as long as they have an innate feeling of being female,” said McVety. “If I then try to stop such a man from showering with my little girl at the local pool I could be in breach of the Criminal Code of Canada and could face imprisonment.” 

It is quite clear what Mr. McVety thinks of Trans people. We all want to be safe, Children, Women and Men. It is beyond intolerable to conflate Trans people with sexual predators. A low point in political discourse. These are the same people that wished to deny rights to the LGBT community, like protection against discrimination; ability to adopt, marriage rights. This subset of christian believers "knows" what is right and good and true; everything that doesn't meet with that definition must be opposed and the chief tool in opposition is fear; of sexual abuse, societal breakdown and perversion. They fight against expanding rights to the LGBTQ now, but before that came opposition to minority rights, before that and still sadly Women's rights. All change seems apocalyptic. 

They are part of a larger group that understands change brings loss of place and privilege for the formerly dominate people. When you extend equal rights to cover more people or circumstances you don't diminish the rights the dominate group but you do effect their ability to discriminate and so marginalize. This inevitably leads to a transfer of some  power and opportunity to the formerly disenfranchised groups. They won't stop fighting and hopefully won't stop losing.

UPDATE: I just checked the Voting on C-279, my MP, Rick Dykstra Vote Nay on amending the CHRA and CCC to include Gender Expression and Gender Identity. 

Concerning Changes to Citizen's Arrest and The Point of It All

Bill C-26 or Citizen's Arrest and Self Defence Act has come into effect. The Bill  makes changes to Citizen's Arrest. The legislation was prompted by what occurred to shopkeeper Davis Chen. A shopkeeper plagued by shoplifting took matters into his own hands when he performed a citizen's arrest on someone he caught shoplifting; the twist was that the perpetrator was caught on a return visit. The man originally escaped the store with his loot. It was on his return for more that he was caught ties up and placed into a van. A call to 911 suggesting an abduction in progress; the police arrived finding the shoplifter tied up in a van, the shopkeeper and two other were arrested on the spot. Mr. Chen was charged with forceable confinement and assault. Inadvertently becoming a celebrity among conservatives; Mr Chen represented as a man protecting himself and property because no one else was.

Mr. Chen won his case when the presiding Judge dismissed the charges. While he found that the police acted reasonable in response to the circumstances surrounding the 911 call; the Judge found that the Police's failure to respond to small crimes led people like Mr. Chen, who perceiving the gap in law enforcement, stepped up to fill the void. This leading the Judge finding reasonable doubt to Mr. Chen's guilt. I understand this to be a reflection of the judge believing that Chen was acting with need and in good faith.

The CPC made much of this case; Chen became a Hero of the conservative and their notions of self defence; a citizen acting when all others deputized to failed. He received a visit from Harper, many pictures ensued, lots of hay made. At the time I thought the circumstances surrounding  Mr. Chen were unfortunate but not entirely unreasonable; the arrest not the prosecution  I think the crown could have pursued the case with more creativity. The rules regarding citizen's arrest were clear and Mr. Chen violated them; they allow for a narrow window of time to act and for the kind of action allowed. If he had been familiar with Citizen's arrest he would not have run afoul of the law. Now to help people like Mr. Chen, you can either inform them of the correct procedure for making a Citizen's arrest or rewrite them with a little more room.

The Harper government, like every government ever, wasn't going to waste the opportunity to score some points with the base. So they proposed  minor changes to the Criminal code of Canada, concerning Citizen's Arrest in the form of Bill C-26. (Original bill died due to an election.)

The resulting Bill increased the time in which an arrest may be made, through the insertion more uses of  "reasonable" relating to what physical acts are permissible in defence of self or property and "reasonable time" for apprehension of suspect. The act gives more discretion to Judges on what they can consider reasonable under what circumstances. Interesting because recent legislation has been trying to curtail discretion.

I will end with a link to the Harper Government's Department of Justice's section on What You Need to Know About Making a Citizen's Arrest. This page will be a let down to the Gung Ho DYI Justice types. I will summarize for you what it has to say to the would be Citizen.

(1) Don't make and arrest if you don't have to, find a policeman.
(2) If you do arrest someone learn the procedure because it's important. You aren't a policeman. Be polite.
(3) You better know the kind of crime being committed because there are rules.
(4) You better arrest the right person because if you don't the person you are arresting might not take it well.
(5)  Arresting people is dangerous, you are not trained and things could go horribly wrong.  

This page is very helpful to would be protectors of property, but it practicably screams DON'T DO IT, find a policeman. You are taking a huge risk and exposing yourself to danger DON'T DO IT, unless you are very sure. Good advice.

The changes are not badly done; they do allow any citizen acting reasonably, in certain circumstances to act in defence of themselves and their property without worrying about going to jail. Just stay within the guidelines.

Concerning the Supreme Court, R v Pham, IRAP and Sentencing

The SCC handed down a decision on R v Pham. An appeal of a lower court sentence of 2 years for a conviction. The appeal was pursued due to consequences of a two year sentence on Mr. Pham's ability to appeal a deportation proceeding. An immigrant convicted of a crime and sentenced to more than 6 months must appear before an immigration board and to explain why they should not be deported. A sentence of two years or more immediately begins the deportation proceedings; no appeal is allowed. IRAP 36(1)(a).

The lower court denied the appeal of the sentence; they did recognized that reducing the term by one day would allow the defendant to appeal deportation, but as the purpose of that Section of the IRAP is there so serious offenders can be deported, reducing the sentence to allow the appeal defeated the purpose of the legislation. I note here, that the Crown did not oppose the sentence reduction. The SCC in granting the appeal and reducing the sentence by one day has overturned that decision.  The ruling can be found here. 

The SCC ruling entailed two ideas; judicial discretion and collateral effects. What the Supreme Court was saying in that ruling is that Judges have a right to discretion in sentencing. This is in the face of the Harper government's recent legislation to introduce a more mandatory sentences. The notion of mandatory sentences are popular with the conservative base but are recognized, even in places like the United States as being counter productive. Mandatory sentencing removes from the Judge their ability to act and respond to unique elements in trials; all cases are not the same and may require different approaches in sentencing. We pay Judges for their  knowledge and experience, it is a shame to render them incapable of using them. I will point out that the SCC gave Judges the leeway to alter sentences but must do so in relation to the crime and with an eye to the level if engagement by the defendant. Any reduction or increase in a sentence must be reasonable and proportionate to the crime. 

The other point raised in conjunction with Judicial discretion is what factors may be considered as relevant when sentencing. This case turned on a section of the IRAP dealing with deportations and appeals. The defendant was rendered incapable of appealing a deportation or due to the collateral effect of a two year sentence. A day less and the defendant would have leave to explain why he shouldn't be deported. The SCC  deemed it reasonable and within the judges discretion to reduce the sentence to allow Mr. Pham's appeal. Now the ruling was specific to this case; where a sentence remains reasonable and will allow an immigrant to purse an appeal regarding their deportation; the sentencing judge may reduce a sentence. I will again note that the SCC didn't give judges carte blanche to alter sentence to meet a defendants immigration needs; any alteration must be considered in relation to the crime and level of defendant's responsibility for the crime. A wider interpretation is that collateral effects of a sentence may be considered by Judges. This is a big strike against mandatory minimums.

I didn't here a lot about this decision in the news but I did find a small piece on the The Sun News site. The comments are what you want to read. 

Mayor Ford Gets to Keep His Job

Friday morning the three Judges hearing the Mayor Ford's appeal handed down their decision on Magder v. Ford. A lower court had ruled Rob Ford to have contravened the Municipal Conflict of Interest Act, he appealed that decision; the judges hearing the appeal have found in his favour and overturned the lower court ruling. Clayton Ruby the lawyer for Paul Madger indicted he will appeal this decision to the supreme court; odds are that Court will decline to hear the case; so Rob Ford gets to be mayor for a little longer. Apparently he has another tussle coming up this one an audit dealing with the 2010 election expenses.

Rob Ford has had his share of problems in the last two years; ranging from the picture of him driving and reading; allegedly proffering his middle finger to a constituent to the the more serious court cases involving libel (he won) and this case of conflict of interests (also won).  These incidents and a few more have members of Ford Nation and the conservative press feeling their Mayor is being pursued by "leftist" presumably bent on the Mayors destruction. I'm not the conspiratorial sort, so I'm likely to attribute Ford's problems to His own mistakes; while not denying that there are people happy to take advantage of seemingly endless number of Fordian miscues.

The ruling came as a surprise to many, including Ford and his supporters. It would appear as many of his detractors were taken unawares by the reversal. I thought he would be turned down on appeal as well; the original decision against him was a good one; the Justice Hackland was thorough and even a bit reluctant in handing it down.

The appeal succeeded from my reading and that of many more expert opinions on the finding that the City Council had no right to financially sanction the Mayor;

 That Act, in s. 160(5), permits only one of two penalties or sanctions: a reprimand or a suspension of remuneration

so it must follow that everything arising as a result of that Council sanction becomes void. The last line in the decision as pointed out by Ms Doolittle says it all; 

[96]           In light of our conclusion that Decision CC 52.1 was a nullity because of the nature of the financial sanction it imposed, the appellant has not contravened s. 5(1) of the MCIA.  Therefore, the appeal is allowed, the judgment of the application judge is set aside and the application under the MCIA is dismissed.

The Court also said that it was that Ford did not have a pecuniary interest in the $3150 donations he had solicited.

I'm satisfied with the verdict; I can live with it. Now I'm not a Rob Ford supporter; I don't think he's a good Mayor. I am in my inclination Liberal-Left; Ford is just to conservative for my taste. I wasn't concerned that a failed appeal might mean an election. I'm on the record as loving elections; the more, the better. I wasn't worried that his removal might prompt a backlash against liberal-left interests. I didn't not think Ford being tossed from office meant the DEATH OF DEMOCRACY. I have always viewed this proceeding and others like it as part of the accountability infrastructure. The Courts and those citizen-activist that use them are part of the system of checks on authority. Those members of Ford Nation who thought the Mayor was innocent; that he was the subject of leftist malcontents, should not be angry. They should instead hail a system that insures that our elected officials act in accordance with the law is working fine. 

The entire affair maybe broken down thus; Ford solicited money for a good cause through his office->People thought that was a code of conduct breach->Council sanctioned Ford-> Ford disagreed and sought to overturned it and in doing so was accused of violating conflict of interest guidelines->Ford taken to court by citizen->Ford loses-> Ford appeals and wins. 

Ford was accused and was in the end  vindicated. I find nothing so beautiful as a system designed to address potential  abuses by those who hold our trust, working. Rather than bemoan the cost of the hearing or the abuse of an innocent Mayor, instead rejoice that the system designed to protect us works.

Red Light Cameras and Photo Radar in the News, Again

A quick Google search will tell you at least two things about Red Light Cameras-RLC and Photo Radar-PR, they are always in the news and always a contentious issue. The issue of RLC made the headlines Toronto the other day. Police Chief Bill Blair has suggested that that RLC and PR could replace officers now on traffic duties and free them up for more important tasks; reduce gridlock which costs the Toronto a great deal of money in lost economic activity. Let us not forget the cash from fines that would accrue tom the city something acknowledged by all but often not expounded upon by proponents; who are more often promoting the safety aspects of such a plan. Rob Ford has stated his opposition to the idea noting that "the people don't support it, the taxpayers don't support it, I don't support it..."

The questions of Safety and of Money are at the centre of automated traffic control/prevention programs. Are they just a "cash grab" or an element of public safety. Is it a "cash grab"?. Sort of yes; sure, more tickets will be issued because an automated system is more efficient at catching violators than a patrol officer. Sort of no; because guess what, you violated the traffic code, which is punishable by a fine. The notion of  "catch me if you can" traffic enforcement is ridiculous. You want officer only supervision because your less likely to be caught.

The larger issue is traffic safety and I guess ensuring a efficient flow of traffic. I submit two studies among the probably thousands commissioned or undertaken on RLC. As always please note who did the study,  Chow it was done; and who is promoting it. Against RLC. For RLC. This one is in a neutral  voice as befits a government study.

The narrative of the studies depends a lot on the agenda of the authors or promoters. They don't lie; they emphasize certain findings of a study rather than others or commission one to look a one aspect among many.  Anti-RLC groups focus on the increase in rear end accidents, which obvious enough increase in RLC areas; sudden stopping to avoid going through a red and getting ticketed. Pro-RLC groups not a decline in T-Bone crashes and the fatalities that often occur with that form of accident.

The question of the utility, beyond income generation for cash strapped municipalities, whether RLC and PR work to lower accident rates; costs associated with accidents. A quick look says they do. That indicates it's worth while doing it, but, if it is unpalatable to your citizens then you need to do more than just throw up a camera and tell driver to "eat cake".

If we want safer roads we need to get the citizens on board and not have them feel like livestock. We new campaigns to promote better driving practices. Engineer better roads and intersections.