Thursday, July 21, 2005
Reference re Quebec Secession  2 SCR 217:
Our law's claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the "sovereign will" or majority rule alone, to the exclusion of other constitutional values.
I wonder if "heterosexual marriage" or "a right to private health care" counts as a "moral value."
Wednesday, July 20, 2005
The RCMP "Mr. Big" strategy, has been running since 1997 and is beginning to gain the attention of the public.
Ian Mulgrew, yesterday published an article in the Vancouver Sun arguing that the strategy is "anathema to our judicial history." Despite what he thinks, the RCMP and the Supreme Court seem to think that saying "fuck" a whole bunch of times and playing bad in the presence of a suspect is to be endorsed.
I'd like to be really open to the idea of this strategy and would like to further study it. My preliminary thoughts, written in response to Mulgrew's article was published today in the Sun, cannot see how this helps anything but public safety.
RE: So-called 'Mr. Big' confessions bad situation
Dostoevsky's novel Crime and Punishment makes a great critique of the RCMP's 'Mr. Big' confessions. The novel would inquire into the principles behind the pragmatics. The RCMP may consider it an "ends to justify the means" strategy, but what exactly is the end? Crime is a social construction. The novel illustrates this by showing how anyone can be convicted of murder through enticements similar to that used by the RCMP. The novel also shows how far removed accruing a confession from the real murderer can be from the purposes of deterrence, restitution and rehabilitation. For progress to be made here, I infer from the novel, the consciousness of the suspect ought to be affirmed and personal development to self-realization of guilt encouraged. Perhaps immediate public safety and job satisfaction are served by 'Mr. Big' confessions, but is that all we want?
Tuesday, July 19, 2005
Date: Tue, 19 Jul 2005 19:03:10 -0700
Subject: Political labelling
I am disappointed in the inconsistency of the CBC when it comes to
I just read today in the National Post of a CBC memo describing their
policy on politically neutral language, particular when using the word
Further, I read a story on the CBC web site today which violated CBC's principles when it came to political labelling.
Here are the facts:
The CBC memo regarding the policy on reporting involving bombings and
using the word terrorism contains the following guidelines:
"[Terrorism is] a highly controversial term that can leave journalists
taking sides in a conflict.
Avoid labelling any specific bombing or other assault as a "terrorist
act" unless it's attributed (in a TV or Radio clip, or in a direct
quote on the Web).
By restricting ourselves to neutral language, we aren't faced with the
problem of calling one incident a "terrorist act" (e.g., the
destruction of the World Trade Center) while classifying another as,
say, a mere "bombing" (e.g., the destruction of a crowded shopping
mall in the Middle East).
Use specific descriptions. Instead of reaching for a label
("terrorist" or "terrorism") when news breaks, try describing what
The guiding principle should be that we don't judge specific acts as
"terrorism" or people as "terrorists." Such labels must be
CBC News editor-in-chief Tony Burman has said: "Our preference is to
describe the act or individual, and let the viewer or listener or
political representatives make their own judgment."
TODAY, I read a CBC story ("Bush nominates Supreme Court candidate")
which contained politically charged labelling without attribution of
the source of such a label by using the word "conservative" when
describing US Supreme Court nominee John Roberts. I would regard
using the word "conservative" to describe someone that is not a) a
republican party member or b) not a self-confessed conservative to be
politically charged, a private judgment, and highly bias.
"Conservative" is a VERY loaded word to describe someone, especially
a judge. Note that the CBC did NOT use the word "conservative" or
"liberal" to describe the recent appointments by PM Paul Martin to the
Canadian Supreme Court (see "Charron, Abella to fill Supreme Court
The CBC report did not source the term "conservative" to any one "TV
or Radio clip, or in a direct quote on the Web" like the
politically-neutral language memo had suggested. See the end of this
email for the full story and headline on the main CBC site.
1. The sub-headline on CBC.ca and the first line of the story was as
follows: "President George W. Bush has confirmed that his first
nominee for a seat on the Supreme Court will be a conservative judge
from Washington." Here, there is no attribution to a source that
describes him as conservative. Proper headlines which attribute
labels will say something like "will be a conservative judge from
Washington, say Globe and Mail reporters."
2. The second line says he will be a "controversial" choice. There is
two problems with this. a) There is no attribution to a source which
says that this is "controversial" b) How would a reporter appear to
justify this use when he was confirmed to the US appeals court by a
unanimous vote. The reporter judged Roberts to be a "controversial"
choice based on his own judgement. This is in direct conflict with
CBC News preference " to describe the act or individual, and let the
viewer or listener or political representatives make their own
judgment." Note that not only ACTS are covered by this policy, but
also INDIVIDUALS. Roberts has been judged controversial by the CBC
WITHOUT ANY attribution to a source which labels him so, and WITHOUT
ANY facts that supports that judgment.
It appears that by virtue of his nomination by a Republican President
that CBC reporters deem it a fair judgement to call him
"conservative." This logic is pure rubbish: The last nominee for
Supreme Court justice, David Souter, has often been called a very
"liberal" choice via attributed quotes (not in the news text) (see this story:"When
the right looks at Judge Gonzales, they have tended to worry they are
getting another David Souter," Brad Berenson, a White House lawyer
during Bush's first term, said about how conservatives were
disappointed when Justice Souter sides with the court's more liberal
3. The story says this: "Roberts has been described as a rock solid
conservative." By who? a) There is no attribution to a "TV or Radio
clip, or in a direct quote on the Web" of this description. b) The
reporter is not letting people make judgments about an individual
based on his actions, record, or facts. There are plenty of web
sources describing his qualities as a person, his record as a judge,
and job performance as a lawyer. But none referenced, quoted, or
linked in this story.
I request that CBC publicly retract the story in question in a
prominent notice on the main (cbc.ca) page, where it was first seen by
Headline on CBC.ca: Bush nominates Supreme Court candidate
sub-headline: President George W. Bush has confirmed that his first
nominee for a seat on the Supreme Court will be a conservative judge
Bush nominates Supreme Court candidate
Last Updated Tue, 19 Jul 2005 21:16:20 EDT
President George W. Bush has confirmed that his first nominee for a
seat on the Supreme Court will be a conservative judge from
Appeals Court judge John G. Roberts is Bush's choice, a selection
which will be a controversial choice. His nomination could lead to a
major battle over the ideological direction of the top court.
Roberts has been described as a rock solid conservative.
"John Roberts has devoted his entire professional life to the cause of
justice and is widely admired for his intellect his sound judgment and
his personal decency," said Bush in announcing his decision.
Bush's selection came as a surprise since there had been some
expectations that he would replace retiring Justice Sandra Day
O'Connor with a woman or minority.
"My nominee will be a fair-minded individual who represents the
mainstream of American law and American values," said Bush earlier in
the day. "The nominee will meet the highest standards of intellect,
character, and ability, and will pledge to faithfully interpret the
Constitution and laws of our country."
Roberts, 50, is a native of Buffalo, N.Y., and attended Harvard Law
School. He is also no stranger to the corridors of power.
He worked at the White House during the Reagan administration as
special assistant to the attorney general and associate counsel to the
Later he was principal deputy solicitor general, the government's
second highest lawyer, who argues cases before the U.S. Supreme Court.
Roberts' nomination needs to be confirmed by the U.S. Senate.
Monday, July 18, 2005
My definition of sharing is when one person uses 3 or more consecutive words that borrow from another person via word-for-word or paraphrased thoughts without reference.
SHARING CITATION NUMBER 1:
Here is the example of Marc Riberio sharing from Patrick Monahan and Patrick Monahan sharing from Peter Hogg:
Patrick Monahan said this in "Is the Pearson Airport Legislation Unconstitutional? The Rule of Law as a Limit on Contract Repudiation by Government," Osgoode Hall L.J. 33 (1995), 411 at 417-41:
"Quebec Premier Maurice Duplessis had cancelled Frank Roncarelli’s liquor licence because Roncarelli had posted bonds for Jehovah’s Witnesses arrested for distributing literature in breach of municipal by-laws....Rand J. stated that this abuse of power was wholly inconsistent with the rule of law."
MARC RIBEIRO said in Limiting Arbitrary Power: The Vagueness Doctrine in Canadian Constitutional Law (Vancouver: UBC Press, 2004), 44-45:
"Quebec Premier Maurice Duplessis had ordered the liquor commission to suspend Mr. Roncarelli's Liquor permit to punish him for having posted bonds for Jehovah's Witnesses arrested for distributing pamphlets in breach of municipal bylaws....The Supreme Court held that the licence revocation for such reasons irrelevant to the statute was an abuse of power that was inconsistent with the rule of law..."
- It should be noted that there would be 14 consecutive words of verbatim sharing in the first instance of sharing, had not Ribeiro paraphrased Monahan's word "literature" with his own word "pamphlets."
- The second instance of sharing is a bit less obvious. Ribeiro leaves out "wholly" in the sentence. Yet it is interesting how "abuse of power" is so close to "inconsistent with the rule of law" like Monahan's article.
- None of this is referenced, although it is clear that Ribeiro is aware of the article, as he references it on the page previous.
Peter Hogg, Constitutional Law of Canada (Looseleaf: Toronto, Carswell, 2004?) at 1-2:
"...government officials must act in accordance with the law.”
Patrick Monahan in Pearson Airport Legislation (see above for reference) at 418:
"Government officials must act in accordance with the law as set down by the legislature and the courts."
- At first glance, it appears as though this is a very common phrase. However, a Google, Google Print, and Lexis Nexis Law Review search shows that occurs exactly like this only 4 times. In Google, it occurs 3 times. Once in Monahan's article, once in talking about Thailand, and once in an article which quotes Peter Hogg's book in a footnote (properly cited). In Google Print, it occurs in a book about China and the Rule of Law.
- Monahan did not cite Hogg. Although it is unclear whether or not it was consciously shared by Monahan. However, Monahan is certainly aware of Hogg's work (having written a book on Constitutional Law in Canada himself, and by virtue of having Hogg as a collegue at Osgoode Hall). And Hogg's reference is in his section on the rule of law; Monahan's work is also on the rule of law.
note: I did contact Monahan about Ribeiro's work via email. Monahan expressed that he was not concerned about its occurance.