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Showing posts with label Canadian law. Show all posts
Showing posts with label Canadian law. Show all posts

Saturday, 14 May 2022

If Men Could Get Pregnant . . .

If Men could get pregnant . . .

It is my counterfactual conviction (meaning it is what I absolutely believe but as a hypothetical cannot be proven with evidence) that if men could become pregnant, the question of abortion would never have arisen.  If men were capable of giving birth, it never would have crossed anyone's mind that the termination of a pregnancy needed to be governed by legislation, let alone criminalized.  Conversely, the termination of a pregnancy is a question because of the inferior status assigned to women throughout Judeo-Christian, Greco-Roman history and culture.  Only in the 20th century have women been grudgingly assigned the status of "personhood," and we continue to struggle with the implications of that assignment.

Women Are to blame . . . men say so . . .

Woman have hard lives.  Men justify the suffering of women through mythology.  In the Christian tradition, Eve brought evil into the world and is therefore responsible for the suffering of all women.  In Greek tradition, Pandora opened the box which released evil into the world.  In Aeschylus' ancient Greek trilogy, The Oresteia, Orestes is put on trial by the gods for murdering his mother, Aegistheus, after she killed his father, King Agamemnon.  The conclusion of the trial is that Orestes is not guilty of a crime because his first loyalty was to his father.  Orestes was, first and foremost, the son of his father and his mother was simply the vessel of his birth.  Three thousand years later, that verdict is still being debated.

Tremblay v. Daigle (1989)

In 1989, the Supreme Court of Canada, in Tremblay v. Daigle, ruled that "a father has no right to veto a woman's abortion decision."  However, Daigle had already gone to the US to terminate the pregnancy before the Supreme Court ruled. Why are the courts, the judiciary branches of government in both Canada and the USA, which can interpret but have no power to create or change the law, being left to decide the abortion question?  The simple answer is that the executive branch, the men we elect (and yes the executive branch is dominated by men), has no interest in passing laws that would give individual women the power to decide to terminate a pregnancy.

 Roe v. Wade (1973)

No new laws were passed, but abortions became legal when the Supreme Courts in Canada and the USA (re)interpreted their respective constitutions as giving women the right to terminate a pregnancy.  In Roe v Wade (1973), the US Supreme Court heard the case of Jane Roe (a play on Jane Doe) against Henry Wade, Attorney General of Texas.  Roe's complaint was that the laws of Texas prevented her from terminating her pregnancy by forcing her to travel to another state and pay for an abortion.  Roe was accompanied in her petition by another Texas couple and a doctor who had already been convicted of performing abortions and had two more accusations pending.  In the end, the Supreme Court accepted to hear only Jane Roe's case.  Allowing Roe's case to even be heard was challenged because she became pregnant in 1970 and by the time her case was before the Court she had already given birth.  Nonetheless, the Court heard her petition and ruled that preventing her from having an abortion was unconstitutional based on various clauses of the US constitution relating to "privacy" and "liberty of the person."  Consequently, the laws of Texas and, by extension, the laws of any state which attempted to curtail a woman's right to terminate a pregnancy were determined to be unconstitutional. 

R. v. Morgentaler (1988)

A similar scenario unfolded much later in Canada. The Canadian Constitution and Charter of Rights and Freedoms were enacted in 1982.  In 1988, the Supreme Court of Canada ruled, in R. v. Morgentaler, that abortion laws were unconstitutional, according to the 1982 constitution, because they "infringed upon a woman's right to 'life, liberty and security of person'."  Since that time, in Canada, a woman's right to an abortion has been unrestricted.  The Mulroney Conservative government attempted to pass a law in 1992 which would impose a two-year prison sentence on doctors performing abortions, but the bill died in the Senate.

Justice Alito's majority opinion overturning Roe v. Wade

 The abortion question is very much back in the legacy media since Politico published a leaked draft of Supreme Court Justice Alito's majority opinion overturning Roe v. Wade.  This year, the case of the Mississippi State Health Officer v. Jackson Women's Health Organization was brought before the Supreme Court.  The State of Mississippi is proposing a prohibition on non-therapeutic abortions after sixteen weeks of pregnancy.  At first glance, the proposal might not seem unreasonable.  However, some states are proposing to ban abortion after six weeks which would effectively ban most if not all abortions.  If Roe v. Wade is overturned, these various state bills prohibiting abortion would almost immediately become law.

What the Bible says about abortion

Despite US claims of separation between church and state, it is obvious that anti-abortion, pro-life movements are underpinned by powerful evangelical lobbies.  I remain dumbfounded that at this point in human history, evangelism, the literal interpretation of the Bible, can still have a profound influence on American politics.  (See How Many Americans Think Planet Earth Is 6000 Years Old?)  Moreover, even if we accept literal interpretations of the Bible, as I have pointed out previously (see What Bible Translation Says about People Who Oppose Abortion), despite attempts by Thomas Nelson Publishers to rewrite the Bible in the 1970s, Exodus 21:22 is explicit that a fetus is not equivalent to a human life.

When Life begins

Much of the debate concerning abortion, including in Roe v. Wade and the Alito opinion, eventually turns to the question of at what point a fetus is considered equivalent to a human person or, more abstractly, at what point life begins.  Typically, pro-life arguments contend that life begins at conception. In Western practice, life is taken to begin at birth.  We measure age by and celebrate birthdays not conception-days.

When Life begins according to the Bible

If we turn to the Bible to determine when life begins then the story of Onan becomes relevant.  These days, "onanism" is a synonym for masturbation.  However, what exactly Onan's sin was and how the biblical story should be interpreted are much debated.  When Onan's older brother died, Onan was, according to old-testament law, required to conceive a child with his brother's widow.  He went to his sister-in-law but, instead of completing the sex act as required, he "spilled it [his seed] on the ground."  If we want to take the Bible literally, one possible interpretation is that life begins with a man's seed and Onan's sin, wasting his seed, was equivalent to terminating a human life.  If you kill the seed, you kill the flower. God's punishment for Onan was death. If we want to base modern laws on Bible stories, then any man who masturbates, scratches his testicles carelessly, uses a condom or does anything to interfere with his own semen is guilty of the same crime as a woman who terminates a pregnancy. Needless to say, no government has ever considered legislating, let alone criminalizing, how a man treats his own semen.  

Alito's Argument overturning Roe v. Wade

Supreme Court Justice Samuel Alito, according to various commentators, tends toward hyperbole and arrogance.  His draft majority opinion shows evidence of both, especially when we consider that he is critiquing the work of his predecessors and two decisions of past Supreme Courts:  Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).  Alito's argument, in contradiction to earlier Supreme Court decisions, can be boiled down to:

  1. "The Constitution makes no reference to abortion [. . . .]"
  2. Abortion is not equivalent to any of the various rights and freedoms that are claimed as implicit under the constitution.  
  3. "Liberty of the person" does not include the right to an abortion because of the moral issue and debate concerning the rights of the fetus as a "living person."
  4. In the absence of implicit or explicit coverage in the constitution, the Court must turn to US history, custom, tradition and precedent to determine its judgment.  Alito asserts, in contradiction to the Court in 1973, that US history shows no openness to granting abortion rights.

Alito's conclusion:

We therefore hold that the Constitution does not confer a right to abortion.   Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.

Are Women's rights human rights?

 Reading Alito's conclusion I am reminded of  the refrain in Hilary Clinton's address to the United Nations Fourth World Conference on Women held in Beijing:  "Women's rights are human rights."  Now we know the response:  "Not in the USA."

Imagine that the Supreme Court ruled that whether or not a man could get a vasectomy would be determined by "elected representatives."  Unimaginable . . . which is exactly the point.

Women Don't have rights because, in the eyes of the law, women don't exist

There is a slippery, slight-of-hand argument running throughout Alito's opinion.  Alito claims that removing the right to decide the termination of a pregnancy does not discriminate against women.  Citing early court cases, Alito argues there are precedents which establish that women are not a group being discriminated against.  The dividing line created by an earlier court case is between  "two groups -- pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes."  In this perspective, since women do not exist as group, it is not possible to claim that restricting abortions discriminates against them.   Therefore, state laws prohibiting abortions would only discriminate against "pregnant women," and it would be left to individual states to balance the rights of pregnant women and those of "unborn living persons."  In this latter case, curtailing the rights of pregnant women would be justified if state legislators believe that a fetus is a living person with equal rights.  What this slippery argument willfully ignores is that what is being taken away is not just the right of some women to a medical procedure; what is being taken away from all women is the right to decide.

 So What!?

The Supreme Court decision will be a victory for evangelicals, 80% of whom voted for Donald Trump knowing he would appoint conservative justices and predicting that this day would come.  Justice Alito is obviously right that US history does not provide precedents for allowing individual women to decide what happens to their own bodies for the obvious reason that American history is a history of discrimination against women.  Arguing that the future must be a continuation of the past is, more or less, a definition of "being conservative."

In practical terms, the new laws will force some woman (in southern states) to face the cost and inconvenience of traveling out of state to terminate a pregnancy.  Consequently, the greatest burden will be borne by the poorest of women.  In the abstract, women's rights and sovereignty over their own bodies will revert to 1970. We might hope that since the majority of Americans support a woman's right to decide, they will elect representatives who will legislate this right.  But, somehow, despite the promises of democracy, the will of the majority rarely succeeds against the power of lobbies and interest groups.

What about Canada?

Could the same happen in Canada?  The mechanisms are exactly the same.  Supreme Court Justices are appointed by the government.  Five of the nine current members of the Supreme Court were appointed by the Conservative government.  These days, various Conservative politicians promise that they will not introduce abortion legislation.  Such promises are irrelevant.  If someone brings a case to the Supreme Court tomorrow, the Court could overrule R. v. Morgentaler (1988) and abortion law would revert to 1969.  Abortion would become illegal in Canada unless a committee of doctors decide it was necessary to save a woman's life or health.

Monday, 8 July 2019

Canadian Politicians Were Caught Like Deer in the Headlights, but Why Are Canadian Journalists Censuring any Discussion of the Merits of Meng's Case?

"The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum."                                                                                 

                                                     Noam Chomsky         


HSBC, "the victim," doesn't want to prosecute

After the G20 summit, President Trump let it be known that he is backtracking on the Huawei ban. Bloomberg and the Financial Times are reporting that HSBC is telling Beijing "It Is Not to Blame for Huawei CFO Arrest."  Where does that leave us?  Let's see:  HSBC is, according to the Grand Jury indictment, supposed to be the victim of Meng Wanzhou's alleged bank fraud.  The only evidence against Meng, according to the indictment, is a meeting she had with an HSBC executive and an accompanying Power Point presentation.  If the "plaintiff" and the "victim" are backing away from the case, the original warrant suspect and the evidence thin to non-existent, what's left?

It's all about Richard Donoghue, a CA Tech employee

Why is Canada still holding Meng Wanzhou, the Huawei CFO, under arrest? Why is Canada accepting that Canadians are being held in a Chinese prison or facing execution?  Why is Canada accepting the blockade of Canadian shipments of canola, pork and beef?  Why is Canada accepting this extreme deterioration of our trade and relations with China?  The answer is:  "Richard Donoghue asked us to." Yes, Canada and Canadians are facing these dire consequences because Richard Donoghue, Chief Litigator for CA Technologies (a Huawei competitor, now owned by Broadcom) who became a US Attorney in 2018, is the individual who requested Meng's arrest and is requesting her extradition.



Do Canadian journalists do any research?

"Richard Donoghue": what a dumb answer, except that it's true.  Despite the apparent conflict of interest, Canada and Canadians are facing these consequences because Richard Donoghue asked us to. I understand that our Canadian politicians panicked when faced with the request to arrest Meng and were paralyzed with fear and indecision.   "Deer in the headlights" is a very apt analogy.  Later they would have to come up with justifications for their paralysis and spread the nonsense claims that extradition is a "judicial, non-political" affair and we are "following the rule of law"--claims that are easily refuted by simply having a look at the relevant 14 pages of the  Canadian Extradition Act (pages 11 to 15 and 40 to 48).  Bizarrely, politicians of every political stripe lined up behind them without a single example of anyone looking at the details of the case or the law.  However, what continues to baffle and confound me is the refusal of Canadian journalists to allow any serious discussion of the case, in particular, the merits of Meng's defence.



Is the Meng arrest justified according to Canadian law?

Last week I watched a "rebroadcast" on CBC News of Natasha Fatah hosting a panel of three commentators to discuss Canada-China relations.  "How is it possible," I asked myself, "for four journalists to discuss current Canada-China relations, and never get around to the facts (let alone the legality) of our arresting and holding Meng Wanzhou?"


David Akin of Global News seemed to offer some hope of an open discussion with his "ANALYSIS: Trudeau cannot just order Huawei’s Meng Wanzhou to go free — or can he?"   Those three words-- "or can he?"-- are the nearest I have seen to any Canadian journalist opening up discussion of the grounds for Meng's release.  However the "analysis" turns out to be the usual diatribe designed to close down any rational dialogue.  Although Akin begins by noting that former Prime Minister Jean Chretien has joined John McCallum in discussing the possibility of releasing Meng Wanzhou, he then quotes University of Ottawa law professor Amir Attaran that “I think it’s shocking. [ . . . .] I think that’s absolutely inappropriate. If they want to make those comments, run for office again.”



Who in Canada is allowed to question Meng's arrest?

Take note of the Catch 22.  We have been told that elected officials and their appointees are not allowed to comment (on the grounds that "politicians" and their appointees cannot comment on "judicial" affairs).  Now we are being told that you have to be elected to comment.  Once you have eliminated both the elected and the un-elected, who's left?  We have to wonder, who is this Amir Attaran, who would have us believe that no-one is allowed to discuss the arrest or release of Meng Wanzhou?  According to his Wikipedia page, Amir Attaran has had a very distinguished legal career. He is an American-born Iranian who specializes in medical and environment cases.  Why is a medical/environment lawyer being asked to comment on an extradition case?

We get an answer to this question by reading to the bottom of Attaran's Wikipedia page, where we discover: "In 2013, Attaran accused Peter MacKay of falsely alleging that Justin Trudeau committed a crime by smoking marijuana."  And, when Attaran launch a complaint with the Canadian Human Rights Commission against the Canadian Research Chair program  "The government under Prime Minister Justin Trudeau sided with Attaran [ . . .].

Finally the questions is asked:  and the answer is . . . 

Akin asks the rhetorical question "Why suffer all that pain? Why not just send Meng back to China?" Then answers:  "But we cannot. At least, not right now. Because in Canada, like most western democracies and not — this cannot be stressed enough — like China, politicians cannot simply phone up a judge and order that an accused person be set free."  The folksy tone makes this claim sound like an obvious truth, but it is an absolute falsehood.  This is what the Extradition Act actually says:

Withdrawal of the authority to proceed 

 (3) The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention.

According to Canadian law, extradition is a political decision

"The Minister" in this case is Minister of Justice.  So yes, a politician, according to the law, can put an end to these proceedings and have Meng released "at any time."

Akin claims that

Meng’s case is right now: before Associate Chief Justice Heather Holmes of the British Columbia Supreme Court. 
If Holmes does eventually rule that Canada should honour the extradition request by the United States — which has charged Meng with fraud in association with alleged violations of Huawei on American sanctions on trading with Iran — and surrender her to American authorities, there will be an opportunity for Prime Minister Justin Trudeau, through his justice minister, David Lametti, to intervene and, if they so choose, to block the extradition.
There is some truth in this claim, but it seems to deliberately get the chronology of events and responsibilities upside down. The Extradition Act specifies that

The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant, if the Minister is satisfied that  
(a) the offence in respect of which the provisional arrest is requested is punishable in accordance with paragraph 3(1)(a); [i.e., that the crime is punishable by two years of imprisonment] 
and (b) the extradition partner will make a request for the extradition of the person.

As the Justice Committee hearings on SNC-Lavalin revealed, we have an odd situation in Canada in which the Minister of Justice and the Attorney General are the same person.  The Lavalin scandal was about the fact that the government was putting pressure on Jody Wilson-Raybould in her role as Attorney General.  Minister of Justice is a political office, distinct from the Attorney General.

Consider how this single paragraph of the law contradicts so much of what we have been told about the Meng case.  First, extraditions are clearly and explicitly political decisions in Canada.  Second, the Minister of Justice is the first to receive a request for extradition (and it is "a request"; so much for "we had no choice").  Third, the Minister of Justice authorizes the arrest, not a judge.  Fourth, once the Minister of Justice has given the authorization, the Attorney General can instruct a provincial judge (in this case ACJ Heather Holmes) to issue the arrest warrant.  What Akin's claim gets right is that the Minister of Justice can intervene "at any time," including after ACJ Holmes has made her decision.

 How can any Canadian claim we are "following the law"?

The law is explicit:

Powers of the Minister
Assurances et conditions 
(3) The Minister may seek any assurances that the Minister considers appropriate from the extradition partner, or may subject the surrender to any conditions that the Minister considers appropriate,
Not only does the law make it plain that the Minister of Justice (a politician) is responsible for the extradition, it lays out the specific circumstances in which a request for extradition is to be refused:

Reasons for Refusal
order not to be made 
 44 (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that 
(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or
(b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.


When order not to be made  
 46 (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that  
[ . . . .]
(c) the conduct in respect of which extradition is sought is a political offence or an offence of a political character
And finally:
48 (1) If the Minister decides not to make a surrender order, the Minister shall order the discharge of the person.

Ignoring the law, then bragging about our "unwavering insistence of the rule of law"

Without a single citation from the law or even mention of the Canadian Extradition Act, Akin concludes:

Canada is a nation of laws with a fully independent judiciary to interpret and enforce those laws. Full stop. 
And the nations of the world — Chretien and McCallum, notwithstanding — can take inspiration and comfort from Canada’s unwavering insistence on the rule of law.







Mythologizing a Conflict of Solitudes and the Erasure of the Left

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