The World is Watching

Canadian prime minister Stephen Harper
has his own scandal woes

Harper is facing questions over everything from curious expenses
to his link to troubled Toronto mayor Rob Ford

By: Jeffery Ewener – Thursday 30 May 2013 19.04 BST,

Canada’s prime minister Stephen Harper is under fire for an expenses scandal and his connections with Rob Ford.

Canadian prime ministers tend to be bland – maniacally so.

Our longest-serving, William Lyon Mackenzie King – who led the young nation through the crucible of the Second World War – is the type and symbol. In his youth, he would walk the streets night after night, hunting for prostitutes – and exhorting them, apparently quite genuinely, to find redemption in the Lord. Later, in the privacy of the prime ministerial mansion, he held séances to consult on affairs of state with his departed mother. He also contacted his dead dog, but there is no record of the pooch offering political advice. All this emerged only after he had joined his invisible councillors. In his lifetime, he presented himself, with unrivalled electoral success, as a cautious and transcendently boring little fat man, who did not look well in a homburg.

Current prime minister Stephen Harper owes his career to this tradition of deceptive mediocrity, which he has elevated to a diffidently shining perfection.

He managed to win, if not the throbbing hearts of voters, at least their shrugging shoulders, only after two consecutive minority governments, during which he and the fractious opposition parties together proved him to be triumphantly faute de mieux. As leader, he has run his party with Bolshevik efficiency – hammering a caucus perhaps a bit over-laden, by historical standards, with yokels, whackos and chancers, into a wide-eyed, tight-lipped regiment of skittish yes-people. Yet with his John Major glasses, his middle-class waistline – neither too working-class wide, nor too patrician trim – his manner of a competent but slightly distracted chiropodist, and the support of a shrewdly distributed not-quite-40% of Canadian voters, he has projected throughout the first two years an air of quiet managerial competence.

And then came Rob Ford. Officially, Stephen Harper has nothing to do with Rob Ford, who, as the world now knows, is mayor of Toronto, and reportedly can be seen smoking crack in a video no one can see. Ford is a conservative, yes, but overt party politics are banned from Ontario’s municipal governments, by provincial law. The styles of the two men could not be more different – Ford’s emotional careering from sulkiness to rage could not look more different, on TV at least, from Harper’s gently superior thin-lipped smile.

But again, there is a video – though yet again, few have seen it. It was taken in Rob Ford’s mum’s backyard two summers ago, during a barbecue party in honour of federal Finance Minister Jim Flaherty, whose riding is in Toronto’s eastern suburbs. The videographer was an unknown conservative stalwart, thrilled to record the surprise appearance of the prime minister himself.

Harper’s brief remarks to the delighted backyard crowd contain two somewhat awkward revelations. The first was that he and Rob Ford had become fishing buddies – a condition of some intimacy in Canadian politics.

The second was his appreciation of the political situation:

“We’ve started cleaning up the left-wing mess federally in this area – Rob’s doing it municipally – and now we’ve got to complete the hat trick, and do it provincially as well.”

The “hat trick” line carries the two men’s relationship beyond intimacy, into a unity of purpose, a joint political identity. This implication was not lost on the prime minister’s office, which within 48 hours had the loyal videographer take it off YouTube – nor on the anti-Harper legions, who put it back up again, where it is beginning to attract renewed media attention.

Getting too close to Rob Ford – or being seen to be – was noxious enough in 2011. Today it’s downright poisonous, especially given the prime minister’s own current political travails. These take the form of an all-too-typical alleged expenses scandal on the part of Harper-appointed(-for-life) senators – spectacularly compounded by the fact that the most egregious offender, after promising to repay the misappropriated money, was quietly slipped $90,000 by the prime minister’s chief of staff in order to do so.

The senator has resigned from the conservative caucus, the chief of staff was sacked, but like some medically-bred super-bacterium, resistant to every political antibiotic in the prime ministerial medicine chest, the infection thrives and spreads. The Royal Canadian Mounted Police are investigating. The senate ethics committee is holding hearings. Harper himself is back from overseas to face Question Period. And that old video could potentially “contaminate” the conservative’s whole future in Ontario, in the words of a recent Toronto Star story, achieving a kind of negative hat trick – municipal, federal and provincial.

Will Rob Ford’s meltdown link up to Stephen Harper’s? Will the public follow the PM’s own analysis and recognize a shared political identity between him and Rob Ford? Will they perceive that identity as extending to the same appalling contempt for democratic norms and political integrity? Or will the worldwide uproar over Ford instead drown out any media outrage over the senate scandal? Time will tell.

In the meantime, Stephen Harper is responding to reporters with claims of innocence, founded on the rock of solid ignorance and bland dismissal. It is the Canadian Way. And it just might work again.


Canada: The Campaign to Erode Aboriginal and Treaty Rights | Joint open letter

January 31, 2013

Please click here to view the PDF version.

For almost 15 years, the federal Department of Justice has conducted a campaign to erode the constitutional and legal status of Aboriginal and Treaty rights in Canada.

In doing so, it has also campaigned to reduce the role of Parliament in its oversight of such rights.

How has this happened?

Aboriginal peoples have a central place in Canadian history and in contemporary Canadian life. The relations between Aboriginal peoples and the Crown have figured prominently in Canada’s constitutional and political evolution.

Those relations have not always been constructive or just. Treaties have often been one-sided and continue to be violated. Laws, such as the Indian Act, have often been oppressive. We all live with that legacy.

The patriation package of constitutional reforms in 1982 offered some new thinking. Section 35 of the Constitution Act, 1982 recognized and affirmed the existing Aboriginal and Treaty rights of Aboriginal peoples, and guaranteed these rights elevated constitutional status.

Many Aboriginal peoples hoped that section 35 would guarantee Aboriginal and Treaty rights as strongly as federal and provincial powers are guaranteed under the Constitution. As treaties with Aboriginal peoples are themselves the products of many compromises, it seemed counterintuitive that the courts would permit one party to those treaties — the Crown — to be able to unilaterally re-work those compromises in its favour. This was reflected in the inclusion of section 35 in a separate part of the Act than the Canadian Charter of Rights and Freedoms, which placed it outside the reach of the limitations contemplated by section 1.

Subsequent court decisions, notably the 1990 Supreme Court of Canada in R. v. Sparrow, determined that constitutional protection for Aboriginal and Treaty rights is not absolute. In limited circumstances, existing Aboriginal and Treaty rights could be ‘infringed’ by new laws. But the Court did try to set the bar high. Only laws that have a valid legislative objective, and that could be justified against a series of tests involving such things as consultation and accommodation, consistent with the honour and good faith of the Crown, could validly infringe. The Court later added that the Crown’s duty to consult would require the full consent of the Aboriginal nation “on very serious issues.”

Up until 1995, new federal laws that might have the potential to conflict with Aboriginal and Treaty rights routinely included a ‘non-derogation’ provision; a provision confirming that Parliament did not intend the new law to be interpreted in a way that would conflict with Aboriginal and Treaty rights. Such non-derogation provisions provided comfort to Aboriginal peoples that new legislative projects were not designed to have unintended side-effects that would be hostile to Aboriginal and Treaty rights.

Starting in 1995, the federal Department of Justice has worked, first, to chip away at, and, then more recently, to undermine directly this constitutional balancing act. It has done so without bringing the matter clearly to the attention of Parliament, or Aboriginal peoples, or the Canadian public.

In laws drafted since 1995, the Department of Justice has experimented with replacing the clear non-derogation language with many weaker variations. All those variations have trended towards a blurring, weakening, and, eventually, overturning, of Parliament’s previously clear presumptive intention not to diminish Aboriginal and Treaty rights in new legislative projects.

For quite some time, this campaign went undetected. When spotted by Aboriginal representatives, and brought to the attention of Parliamentarians, the Senate Standing Committee on Legislative and Constitutional Affairs carried out a careful and thorough investigation of the matter. The investigation resulted in a thoughtful report in December 2007, supported across party lines, entitled Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and Treaty rights.

Among the sensible recommendations of that report, the Senate Committee urged that the federal Interpretation Act be amended to include a general presumptive rule that new laws be interpreted to uphold rather than erode Aboriginal and Treaty rights. This presumption could be rebutted; Parliament would, consistent with the Constitution and court rulings, maintain the power to infringe Aboriginal and Treaty rights, but would reserve the discretion carefully to itself as to whether or not to do so in relation to any new proposed law. This Interpretation Act approach has already been employed in Manitoba and Saskatchewan at the provincial level. Those provinces have experienced no practical problems.

The Department of Justice ignored the Senate recommendations.

With the wording of a proposed new law, the Safe Drinking Water for First Nations Act, the campaign to erode the constitutional and legal status of Aboriginal and Treaty rights has come full circle.

For the first time, a new law would include an active ‘derogation’ provision; that is, the proposed law explicitly states that Aboriginal and Treaty rights deemed to be in conflict with the law’s stated objective will not be respected.

And for the first time, a new law would contradict promises made to Aboriginal peoples in treaties as to the interpretive primacy of those treaties.

Many Aboriginal peoples are desperate for improved water supply after decades of federal underfunding. In a cruel feature of the new law, eligibility for future federal funding support for improved water services would be tied to willingness to live under the new derogation regime created by the proposed law.

The new law has been developed without the required consultation with those affected. There has been no respect for the “free, prior and informed consent” test that has been embedded in the 2007 United Nations Declaration on the Rights of Indigenous Peoples, a universally accepted human rights declaration that the federal government now claims to endorse.

All of this, of course, is bad news for Aboriginal peoples. But perhaps equally disturbing for all Canadians is the technique adopted in the new law that allows future erosion of Aboriginal and Treaty rights to be carried out through the executive branch of government by way of regulations.

Regulation writing is, of course, the special province of Department of Justice officials. Unlike the case with new statutory proposals, which must go through three readings and committee review at House of Commons and Senate stages, Parliament has virtually no say with respect to new regulations.

Canada’s highest court has affirmed that the respect and protection of existing Aboriginal and Treaty rights is an underlying constitutional principle and value. Given Canada’s colonial history towards Aboriginal peoples, the responsibility of Parliament is particularly important in safeguarding the rights and interests and dignity of Aboriginal peoples, and the reliability and durability of their fundamental rights.

It would be a sad day for Canadian democracy if Parliament compromises its duty to respect underlying constitutional principles and values, and safeguard collective and individual rights. Parliament must not surrender its responsibility to Department of Justice officials, who would prefer that any debate as to how much respect be given to Aboriginal and Treaty rights be conducted behind bureaucratic closed doors.

Home and abroad, Aboriginal peoples and Canada deserve much better.

Signed by:

Jim Aldridge, Q.C.
Aldridge & Rosling
Barristers and Solicitors

Dr. Rachel Ariss
University of Ontario,
Institute of Technology

Constance Backhouse, C.M., O.Ont., F.R.S.C.
University Research Chair
Faculty of Law, University of Ottawa

Marie Belleau
Nelligan O’Brien Payne LLP

Andrée Boisselle
Assistant Professor
Osgoode Hall Law School, York University

Karen Busby
Professor of Law
Director, Centre for Human Rights Research, University of Manitoba

Larry Chartrand
Associate Professor
Faculty of Law, University of Ottawa

Gail Davidson, Lawyer

Susan Drummond
Associate Professor
Osgoode Hall Law School,
York University

Bryce Edwards
Olthuis Kleer Townshend LLP

Harvey A. Feit,
Professor Emeritus, McMaster University

L. M. Findlay, M.A. D.

Phil. D.Litt. F.R.S.C.
Professor of English and Distinguished Chair,
University of Saskatchewan,
President, Academy One (Arts and Humanities),
The Royal Society of Canada

Shelley A.M. Gavigan
Osgoode Hall Law School
York University

Kimberley Gilson, Barrister & Solicitor

Joyce A. Green, Professor
Department of Political Science
University of Regina

Veryan Haysom, Barrister & Solicitor

Sakej Henderson, IPC

D. Ann Herring, PhD
Department of Anthropology
McMaster University

Stephanie Irlbacher-Fox, PhD

Adjunct Professor, Canadian Circumpolar
Institute, University of Alberta

Beverley Jacobs, Mohawk Nation,
Barrister & Solicitor, Ohsweken, ON

Sébastien Jodoin,
Trudeau Scholar & SSHRC Doctoral Fellow
Yale School of Forestry & Environmental Studies

Paul Joffe, Barrister and Solicitor

Roger Jones, LL.B. IPC

Kate Kempton
Olthuis Kleer Townshend LLP

Annie Khatchadourian
Marianopolis College

Nancy J. Kleer
Olthuis Kleer Townshend LLP

Peter Kulchyski, Professor,
Native Studies, University of Manitoba

Lorraine Y Land
Olthuis Kleer Townshend LLP

Lois Leslie, Barrister and Solicitor

Peter Leuprecht,
Professor of Public International Law,
Former Dean Law Faculty, McGill University

Wilton Littlechild IPC
International Chief of  Treaty 6, 7 and 8

Katherine Lofts
Associate Fellow
Centre for International Sustainable Development Law

John S. Long, Professor
Nipissing University

A. Wayne MacKay
Yogis and Keddy Chair in Human Rights
Professor of Law
Schulich School of Law
Dalhousie University, Halifax

Kent McNeil
Osgoode Hall Law School
York University

Matthew McPherson, Lawyer
Olthuis Kleer Townshend LLPProfessor

Errol P. Mendes
National Journal of Constitutional Law
Faculty of Law
University of Ottawa

John Merritt
Barrister and Solicitor, Ottawa

Professor John S. Milloy DPhil [Oxon]
Department of Canadian Studies
Trent University

Catherine Morris
Adjunct Professor,
Faculty of Law, University of Victoria

John A. Olthuis
Olthuis Kleer Townshend LLP
Aboriginal Rights Lawyer

Laurie Pelly
Legal Counsel
Nunavut Tunngavik Inc.

Richard Preston
Professor Emeritus,
Department of Anthropology,
McMaster University

Brock A.F. Roe
Indigenous Bar Association

Dr. Lorna Roth, Professor
Department of Communication Studies
Concordia University

Elizabeth J. Sacca, Ph.D.
Professor Emeritus
Former Dean, School of Graduate Studies
Concordia University, Montreal

Colin Scott, Associate Professor,
Department of Anthropology,
Director, Centre for Society, Technology and
Development (STANDD), McGill University

Jaela Shockey
Janes Freedman Kyle Law Corporation

Sam Silverstone
Legal counsel for Makivik Corporation (Inuit of Nunavik)

Professor Deborah Simpson
University of Regina
International Studies Program

Adrian Tanner, PhD
Retired Professor, and Honorary Research
Anthropology Department
Memorial University

John D. Whyte, Policy Fellow
Johnson-Shoyama Graduate School of Public Policy
University of Regina
Professor Emeritus
Faculty of Law
Queen’s University

Professor Norman Zlotkin
College of Law
University of Saskatchewan

This letter is endorsed by Amnesty International Canada, Assembly of First Nations, Canadian Friends Service Committee (Quakers), Centrale des syndicats du Québec, Federation of Saskatchewan Indian Nations, First Nations Summit, Grand Council of the Crees (Eeyou Istchee), Haudenosaunee of Kanehsatà:ke, Indigenous Bar Association, Indigenous World Association, Inuit Tapiriit Kanatami, KAIROS: Canadian Ecumenical Justice Initiatives, Lawyers Rights Watch Canada, Ligue des droits et libertés, Native Women’s Association of Canada, Nisga’a Nation, Nunavut Tunngavik Incorporated, Quebec Native Women, Union of British Columbia Indian Chiefs


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