Mendes: We say ‘never again,’ then it happens again in China and we do almost nothing

Good op-ed by Errol Mendes:

We are witnessing what we’d hoped would “never again” happen after the Second World War: There is compelling evidence that over a million Uyghurs are being detained in Xinjiang, China.

While the Chinese government claims the detention camps are in fact vocational or training camps, the detainees are subjected to propaganda sessions, forced labour, and physical abuse, including gang rapes, according to credible news reports.

There’s also evidence that the Chinese government is trying to reduce the numbers of this ethnic and religious group through enforced birth control.

I agree with former Justice minister Irwin Cotler that we should join the U.S. and other countries in imposing targeted sanctions against key planners of the mass detention of the Uyghurs in Xinjiang.

I have suggested in Canadian Parliament that sanctions should target the architects of the suppression and detention of the Uyghurs. Such sanctions could target governor Shohrat Zakir of Xinjiang, and the region’s party chief, Chen Quanguo, who’s a member of the politburo of the party in the highest ranks of the Chinese government. Both have asserted that these allegations, of what amount to serious international crimes against the Uyghurs, are fabricated lies and absurd. Zakir goes further by describing the camps as boarding schools where the rights of the “students” are protected.

In 2017, Parliament passed the Justice for Victims of Corrupt Foreign Officials Act, which implements the Magnitsky targeted sanctions that allow Canada to freeze the assets and ban the travel of human-rights abusers and corrupt officials around the world. Similar laws have been adopted by the U.S., the U.K., and many European countries, and the European Union is considering adopting a law for the whole region. The law was championed by Bill Browder, the global human-rights and anti-corruption campaigner whose lawyer, Sergei Magnitsky, was murdered by Russian officials.

In an interview in the Globe and Mail, Bob Rae, Canada’s ambassador to the UN, said the federal government must consider the consequences, including possible retaliation, before imposing sanctions on senior Chinese officials for violating the human rights of minority groups. I agree with him that a government can never afford to engage in non-consequential thinking or actions that could threaten our two Canadians, Michael Spavor and Michael Kovrig, or engage in further trade actions that could threaten our agricultural and lumber exports.

However, Canadian society can’t bend its foundational commitments to the rule of law to the laws practised by China and other dictatorships. We can’t ignore our oft-stated commitments to the promotion and protection of universal human rights embodied in the promise of “never again.” We can’t just stand by while, yet again, crimes against humanity are committed, including genocide, torture, and brutal violence and rape against women detainees.

When we stay silent or don’t act in the face of these atrocities, we forfeit our right to be regarded as champions of the equal dignity and rights of all peoples on the world stage. History has shown that silence is the complicit partner to genocide. Canada can’t stand by while genocidal acts and crimes against humanity take place in Myanmar, China, or elsewhere. By forcing birth control on the Uyghurs, the Chinese government is committing both crimes against humanity and genocide.

The officials who I suggest we target for their involvement in the detention, subjugation, and forced birth control in Xinjiang may not want to travel to Canada or have any assets here to be frozen, but the signal we send with the targeted sanctions to, not just China, but the entire world, is that we’re acting on behalf of humanity. They’re meant to bestow pariah status on those at the highest levels of the Chinese government.

Our traditional allies should be urged to follow suit, and even consider doing it jointly with us. As for China’s possible retaliation, “the two Michaels” are already paying the price with their detention and imminent trial. Their fate is sealed as long as Huawei executive Meng Wanzhou isn’t freed.

Canada must develop a longer-term strategy and policy for China that addresses both the country’s “hostage diplomacy” and the use of trade punishments that are substantially in violation of global trade rules under the World Trade Organization.

As China breaches international norms and laws, Canada and its government must develop a long-term strategy with our traditional democratic allies, especially the European Union and the new Biden administration in the U.S. The goal of such a coalition would be the economic, social, and multilateral deterrence of, not only the use of hostage diplomacy by China and other countries, but also China’s ability to target democratic countries that are bound by their values, principles, and constitutions to adhere to the rule of law and the promotion and protection of universal human rights.

U.S. President Joe Biden has already promised to hold a global democracy summit to renew the spirit and shared purpose of the nations of the free world. Yet again, the risk is high that authoritarian China will collude with similar powers to make the entire democratic world cower in fear of them.

Canada could urge such a summit, where measures can be agreed on to subject Chinese global companies to national-security, human-rights, and anti-corruption scrutiny, and to penalize them for complicity in their state’s serious international crimes.

We need government, private-sector, and civil-society partnerships to oppose hostage diplomacy and impunity for the most serious international crimes. Such coalitions could build on the “Five Eyes” intelligence alliance, comprised of Canada, the U.S., the U.K., Australia, and New Zealand, which functions well already. The commitment to the rule of law — and respect for the equal dignity and rights of all peoples, which underlies the alliance of truly democratic nations — is under attack from authoritarian leaders around the world. Canada can’t acquiesce or stand by in this assault on democracy around the world.

Source: We say ‘never again,’ then it happens again in China and we do almost nothing

‘They are just buying time’: Lawyers weigh feds’ appeal of judgment suspending Canada-U.S. asylum agreement

From the legal critics:

The Liberal government’s appeal of a recent “damning” Federal Court decision striking down Canada’s 16-year asylum agreement with the United States is disappointing and will likely end up before the Supreme Court, say lawyers and a Senator who once practiced refugee law.

Justice Ann Marie McDonald was “bang-on,” said Independent Senator Mobina Jaffer, when she found the Safe Third Country Agreement (STCA) violates Section 7 of the Canadian Charter of Rights, which guarantees everyone “the right to life, liberty and security of the person.” In July, Justice McDonald ruled the agreement, which halts people entering Canada at official border crossings because they must instead claim asylum in the U.S., is “over-broad” and the risks of detention and loss of security of the person is “grossly disproportionate” to the administrative benefit of the agreement.

The B.C. Senator said during her 20 years practicing refugee law—before the 16-year-old agreement was brought into force—she worked on many cases where refugees crossed the U.S. border seeking asylum. None in government can be “blind or deaf to what is happening in the United States,” she said, where reports continue of parents being separated from their children and placed in cages, according to Human Rights Watch, which has called the practice a human rights violation.

Sen. Jaffer took issue with the government’s argument that ending the agreement would cause an uptick in claims and put Canada’s refugee system at risk, saying that fear was likely pushing its appeal.

“This is a fairly new thing we are doing [with the agreement]. I find it almost insulting to say we will be overwhelmed with applications… so we don’t need to follow Section 7, that’s how I see it,” she said, highlighting the contradiction in Canada’s experience compared to other nations. Before the pandemic, she travelled to Lebanon and Turkey, which each house millions of refugees, while Canada has seen 58,255 irregular crossings from the U.S. since the beginning of 2017.

“I just think they are buying time to continue the same system because they know they don’t have a strong case,” Sen. Jaffer said.

The evidence presented to Justice McDonald was “damning,” said Jamie Liew, an associate professor at the University of Ottawa, and it was the most evidence presented that Sharry Aiken, an associate law professor at Queen’s University, had seen in 30 years practicing and teaching immigration and refugee law.

“It is curious to me that the government has chosen to ignore all this evidence and instead find that there is still grounds in this agreement to operate as usual… to operate as if the U.S. is acting as an honest partner in meeting its obligations under the Refugee Convention, which it clearly isn’t,” said Prof. Liew.

The appeal means that the STCA is in effect indefinitely now, and a decision is likely years off. The Federal Court of Appeal doesn’t have “a great track record in recognizing the rights of refugees,” explained Prof. Liew, and the applicants would likely appeal an unfavourable ruling.

She and her University of Ottawa colleague Errol Mendes, a professor of constitutional law, both said they think the case is destined for the Supreme Court.

“The issues at stake are so complex, it may require a final court determining some critical issues not only relevant to this case but many other cases that involve the Charter and in particular Section 7,” Prof. Mendes said by email.

Errors in judge’s findings, feds say

The government took a month to appeal the July 22 ruling, and Public Safety Minister Bill Blair (Scarborough Southwest, Ont.) explained in a statement Aug. 21 it was because there are “important legal principles to be determined in this case” and it’s necessary to appeal ”to ensure clarity on the legal framework governing asylum law.”

Asked for more clarity on the legal groundings of that appeal, Mr. Blair’s spokesperson, Craig MacBride, said by email that the government is appealing the ruling because it believes there are errors in some of the key findings of fact and law.

“The decision suggests all asylum claimants who are ineligible under the Safe Third Country Agreement and turned back to the U.S. are automatically detained as a penalty,” he said. “This is not the case. The U.S. remains a party to the UN Refugee Convention.”

Prof. Mendes said he expects the government to attack a “crucial” part of the court decision, in which Justice McDonald said that with the agreement, the risks of detention and loss of security of the person “are grossly disproportional to the administrative benefits of the STCA,” and that the impact on a refugee of being found ineligible is “out of sync” with the objective of the legislation, and responsibility sharing between the countries “cannot be positively balanced against imprisonment or the deleterious effects of cruel and unusual detention conditions,” including solitary confinement.

The federal government may attack Justice McDonald’s assessment that the STCA’s main objective is in fact an administrative benefit of sharing responsibility for refugees, he suggested.

“Instead, they will claim that getting rid of it will destabilize the entire present refugee system in Canada, given that the present system with the STCA is already backlogged with those that are not caught by the STCA,” said Prof. Mendes, though he thinks this defence likely would not succeed. “The Court has said on the many cases that it would be undermining the Charter if all that [the] government had to do to violate Charter rights is to proclaim the administrative burdens that come from living up to them.”

Prof. Liew said she hopes the Supreme Court takes up the issue, especially the question of an “alternative remedy,” which she said is often a legal argument the government invokes when it comes to Charter challenges. In this case, she said the government argues there are other avenues open to refugee claimants, when in reality most aren’t aware of their rights and when turned back to the U.S. are immediately detained.

“Once a Charter right is infringed… can it be affected by what the government calls alternative remedies? I think that’s where I anticipate their argument will rest,” she said. “If you want to look at taking Charter right infringements seriously, we should be really looking at how it operates on the ground.”

The only Charter argument Prof. Mendes could imagine the government using is a point the government has already asserted: that the U.S. has a fair detention review system, which can allow for due process and release from detention.

The experience of one of the applicants in the case, Nedira Mustefa, directly challenged that claim. She was detained in the U.S. after trying to enter Canada and spent a week in solitary confinement, which Justice McDonald said meets the test that a foreign law would “shock the conscience.”

“So the government will argue theoretical fair detention review possibilities [versus] the ‘Trumpian era’ reality of harsh treatment of refugees and increased risk of deportation to countries where life, liberty, and security of the person is endangered,” said Prof. Mendes

“Here, the appeals court will have to factor into what I call real-time realities of the life of refugees in Trump’s America versus the theoretical due process safeguards under the STCA.”

That Justice McDonald declared the STCA invalid based on the treatment of a couple refugees could also be contested by the government, he added, but the Supreme Court has said in the past—in rulings on assisted dying or anti-prostitution laws—that if a process violates the Section 7 rights of even a few people, or a small number disproportionately, the law can still be struck down, he noted.

Political issues likely at play

Prof. Aiken called Mr. Blair’s rationale that legal principles are in play a “specious” argument, seeing the choice to appeal instead as a “very transparent commitment” to a Liberal political agenda to not only maintain, but extend, the STCA.

“It is a highly charged political issue and in my view it’s almost been served up as a kind of marker or proxy for a wider political discourse on refugees and border security in a way that completely distorts the impact and implications of this agreement,” she said.

“Every day it continues in effect is another day of refugee rights being violated.”

When the agreement was brought in following 9/11, Prof. Liew said it was in part to address backlogs at the Immigration and Refugee Board of Canada. There are more innovative ways to expedite that process and address policy problems than putting people at risk of returning to places where they could endure persecution or death, she said.

“I’m very perplexed, if we’re concerned about that policy rationale, why it has to be done with a heavy-handed manner in a way that’s totally ignorant to the dire situations that refugee claimants face in the U.S.,” she said, who stressed this is not a “temporary problem” unique to Trump’s America.

The Conservative Party supports the government’s decision to appeal, said immigration critic and MP Peter Kent (Thornhill, Ont.), but he expressed surprise it took so long. He said there are a number of “inconsistencies” in the ruling, which he also expects will ultimately make its way to the Supreme Court.

There are clearly issues with the agreement, said Mr. Kent, but those mainly lie in the “loophole” that those who don’t cross at official ports of entry don’t fall under the agreement.

Justice McDonald’s ruling is based on the specific experiences of three claimants, that he said are “exceptions to the broader context” of the agreement, which he called part of a “fair and compassionate and orderly” immigration system.

“There is the issue of those in the United States who fear and may have legitimate concerns that if they’re discovered in the United States, they will experience improper treatment, but the broader intent of the Safe Third Country Agreement addresses those like the overwhelming majority of illegal border crossers,” who he said had the economic means and visas to pass through the U.S. and enter the border improperly.

NDP MP Jenny Kwan (Vancouver East, B.C.), her party’s immigration critic, called the government’s decision “horrendous” and its rationale for appeal “nonsense.”

She said she sees it as the Liberals catering to a Conservative-leaning perspective on borders and a “backdoor way” to close them.

“Has our federal government completely set aside the need for Canada to do the right thing, abide by our international obligations, and to be on the right side of history? Is their politics and the gamesmanship in politics more important than the lives of people facing persecution?”

Source: ‘They are just buying time’: Lawyers weigh feds’ appeal of judgment suspending Canada-U.S. asylum agreement

Parliament should label Uyghur persecution as genocide to foster global support against China’s human rights abuses, says former Liberal justice minister

Needed debate and action:

Parliamentarians heard from activists during hours-long committee meetings last week who were calling for the Chinese government’s oppression of Uyghur Muslims to be acknowledged as genocide, and a former justice minister says Parliament is uniquely positioned to have a “distinguishable role” in condemning Beijing’s alleged behaviour to build an international partnership to counter China’s bullying.

The House Subcommittee on International Human Rights heard from more than 20 witnesses over 14 hours on July 20 and July 21 about the persecution of the Uyghurs. Many said the mistreatment and abuse of Uyghurs was tantamount to genocide and called for Canada to take a stand.

“Genocide obliges us all—internationally, domestically, governments, Parliaments, civil societies—and here the Canadian Parliament has a distinguishable role to call out genocide,” said Irwin Cotler, a former Liberal justice minister and now founding chair of the Raoul Wallenberg Centre for Human Rights. He told The Hill Times that Parliament has set a precedent of playing a leading role in calling out human rights abuses and acts of genocide.

“I think it’s very important that governments act in concert, that Parliaments act in concert, as well as civil society acting in concert in calling out China,” said Mr. Cotler, who was a Liberal MP from 1999 to 2015. “If we want to protect the rules-based international order—and justice for the victims in China and accountability for the violators—we’re going to have to do so in concert governmentally and in Parliament.”

“Canada can play a leading role in this,” he said, citing the work that Parliamentarians have previously done raising the issue of genocide prevention, and raising awareness of the Rohingya genocide, among other targeted mass killings.

“China has been assaulting the rules-based international order and committing these international crimes with impunity thus far,” Mr. Cotler said. “They’ve been able to do so with impunity because they have been leveraging their economic and political power, and targeting countries one by one if those countries dare stand up to them.”

“What is needed now is an inter-governmental alliance, an alliance of democracies, so China doesn’t leverage its power and bully countries one by one.”

Some witnesses told the subcommittee that it is necessary for Canada to place sanctions on top Chinese Communist Party officials in Xinjiang where there are reports of mass detentions and forced sterilization of the Uyghur population.

The Associated Press reported on a systematic program to reduce the Muslim population in China, with the government enacting population control measures, which included IUDs and sterilization.

Adrian Zenz, a senior fellow in China studies at the Victims of Communism Memorial Foundation, told the subcommittee that in 2018, 80 per cent of new IUDs in China were placed in Xinjiang, which only makes up 1.8 per cent of China’s population.

The Chinese government has long held that human rights abuses aren’t taking place in Xinjiang and have called the alleged detention facilities “vocational education and training centres” that are being used to combat terrorism.

University of Ottawa international law professor Errol Mendes, who appeared virtually before the subcommittee, said Canada should apply Magnitsky sanctions on the “chief planners of the detention.” He said that should be Xinjiang regional government chairman Shohrat Zakir and Xinjiang Communist Party Secretary Chen Quanguo, a member of the politburo.

Prof. Mendes told The Hill Times that imposing sanctions would prove that Canada is not staying silent and is upholding its commitment as a party to the United Nations Genocide Convention.

He added that the sanctions will “probably not” have tangible results in the short run. In spite of that, Prof. Mendes said when countries have “sufficient proof” that a genocide is taking place, “they must act.”

Magnitsky sanctions have already been applied on Chinese Communist Party officials in Xinjiang by the U.S., including on Mr. Chen.

Prof. Mendes said other levers can also be used, such as stopping companies from purchasing products in their supply lines from Xinjiang, which have reportedly been through forced labour.

He said that a motion of Parliament labelling the actions of the Chinese government as acts of genocide might not have impact for Beijing.

“Sending a direct signal to one of the main politburo members sends a message to President Xi [Jinping],” Prof. Mendes said.

Mr. Cotler said a parliamentary condemnation of the Chinese government’s mistreatment should include sanctions as well.

“Under the Genocide Convention, there is an obligation to act pursuant to that determination and an obligation to hold a country—that is engaged in acts that constitute genocide—accountable,” he said.

It is the responsibility of Canada and the international community to bring justice to the victims and hold criminals accountable, Mr. Cotler said.

University of Ottawa professor John Packer, director of the Human Rights Research and Education Centre, said that it is clear that China has been committing genocide based on the Genocide Convention.

According to the convention, an act of genocide is taking place if any of the five conditions are met: killing members of a group; causing “serious bodily harm or mental harm” to member of a group; intentionally “inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”; “imposing measures intended to prevent births within the group”; and “forcibly transferring children of the group to another group.”

Prof. Packer said it looks “quite clear” that there have been breaches of the convention, adding that “it is very difficult not to draw the negative inference that this is purposeful state policy.”

“That would mean that it is genocide,” he said. “This is not by accident.”

“If China really believes this is all mistaken, they should be entirely open to exposing to international scrutiny what is going on,” he said, adding that if there is a dispute, the convention states it should be referred to the International Court of Justice.

Prof. Packer also noted a party to the Genocide Convention has a duty to prevent acts of genocide.

“If we see something happening and we are silent then there are fundamental issues about how seriously we consider this fundamental norm of international relations,” he said.

“Where such cases [of genocide] are quite clear in terms of international exposure, such as the Rohingya, such as the Uyghurs, it strikes me as extraordinary that we would demure—that we would shuffle our feet and look the other way,” Prof. Packer said.

He added that a motion of Parliament acknowledging a genocide is taking place would set a “very big international symbol.”

Conservative MP Garnett Genuis (Sherwood Park-Fort Saskatchewan, Alta.), his party’s critic of Canada-China relations, said the subcommittee heard “clear-cut” evidence of genocide.

“We should recognize that the Chinese state is guilty of genocide in Xinjiang,” he said, adding that Canada should respond with Magnitsky sanctions and by addressing the possible complicity of investment in Chinese companies that are involved in the oppression in Xinjiang, as well as imported products that are produced through forced labour.

“All of that flows from recognition” that a genocide has taken place, Mr. Genuis said, adding that both the Canadian government and the House of Commons should make that acknowledgement.

Echoing Mr. Cotler, he said there is a need for principled multilateralism of likeminded countries that follow their own obligations in concert with each other.

“What we’ve seen from the government is occasional words but no actions,” Mr. Genuis said. “The government has acknowledged the issue of abuses of human rights involving Uyghurs. They have not used the word ‘genocide,’ they have not used the words ‘crimes against humanity.’ In other words, they haven’t used words that carry international legal significance.”

In a brief to the International Human Rights Subcommittee, Global Affairs noted that Canada is “deeply concerned” about human rights abuses against Uyghurs by Chinese officials.

Canada is urging that Beijing release “Uyghurs and other Muslims who have been detained arbitrarily—based on their ethnicity and religion.”

“Publicly and privately, in multilateral fora as well as in bilateral dialogues, Canada has consistently called the Chinese government to address repression in Xinjiang,” the brief notes.

Mr. Genuis said the government hasn’t addressed the issue in areas that have “legal weight.”

NDP MP Heather McPherson (Edmonton Strathcona, Alta.), her party’s representative on the International Human Rights Subcommittee, said the committee will release a statement on the meetings in early August.

“I think what we pretty universally agreed upon is that there needs to be more done,” she said. “We need to take a stronger stance to ensure that we are protecting human rights around the world. It doesn’t matter where it happens, the rule of law and the protection of human rights is vital.”

Ms. McPherson wouldn’t say whether the subcommittee meetings will lead to a recognition by Parliament that acts of genocide have taken place.

“I will say that the testimony that we heard—the very credible witnesses that we heard from, the survivors that we heard from—there’s pretty strong proof and testimony that there have been acts of genocide perpetrated against the Uyghur people,” she said.

She added that it is vital to figure out a strategy to re-engage on the world stage to jointly address China’s human rights record.

“We’re not ever going to want to do this alone. … We’re never going to want to take giant steps by ourselves. I think we want to work with our multilateral partners and we want to work with our likeminded allies and use those tools at our disposal to put some pressure on China to come back to the side of international law, to come back to the side of protection of human rights.”

Source: Parliament should label Uyghur persecution as genocide to foster global support against China’s human rights abuses, says former Liberal justice minister

How a new appointment process ushers in Supreme Court transparency

Two separate commentaries on the new Supreme Court process and the diversity aspects, starting with Emmett Mcfarlane:

Moreover, statements that the committee will canvass across Canada to fill the new appointment has been met with criticism that the government is doing away with the convention of regionally-based appointments. The upcoming vacancy is historically Atlantic Canada’s seat on the Court. There is speculation that one reason the government would look to other parts of Canada for the next appointment is the desire to appoint an Indigenous or visible minority candidate to the bench. Not appointing someone from Atlantic Canada would not conflict with anything in the constitutional text, but it would be contrary to convention. While the courts tend not to enforce conventions, the government invites significant controversy if it chooses to abandon one here.

The regional issue aside, the lack of diversity on the Court is also a serious problem, at least from the perspective of the institution’s legitimacy. Lack of representativeness in a key governing institution like the Court runs contrary to the stated objectives of the Trudeau government (because it’s 2016, after all). Since the Court’s creation in 1875, every justice has been white. The language of the committee’s mandate is no doubt intended to rectify that. Whether it will, and whether the new process will succeed in bringing greater transparency to appointments and to the Court itself, remain to be seen.

Source: How a new appointment process ushers in Supreme Court transparency

Errol Mendes on the same point:

While the advisory panel has the mandate to consult widely (including with the Chief Justice of the Court, provincial representatives, and MPs and senators from all parties) it must go further in filling in what is missing – namely the lack of aboriginal and visible minority representation in the court while also achieving full gender parity on the bench.

Mr. Trudeau emphasized that the court must reflect our diverse society to bring different and valuable perspectives to the decision-making process. That is indeed what should be part of an appointment process based on merit. To achieve that, the advisory committee must perform extensive outreach activities, going into every part of our legal institutions to seek out the most competent and meritorious of such representatives of the missing diversity on the court.

Expectations of transparency and openness have been raised high by this new appointment process, but so has the expectations of a more diverse court. Because it is 2016.

 New advisory panel needs to dig deep for diversity on Canada’s top court 

On the Saudis and human rights, Canada needs to stop contradicting itself: Mendes

Errol Mendes’ suggestion to broaden the mandate of the Ambassador for Religious Freedom to Ambassador of Human Rights:

The Harper government earned itself a lot of criticism for creating its Office of Religious Freedom, a quasi-diplomatic operation which is supposed to promote the cause of faith rights around the world. This office, run by Christian scholar and public servant Andrew Bennett with a budget of $5 million, has a narrow mandate — and while Mr. Bennett has met with many diplomats, officials and groups from many religions in Canada and around the world, he hasn’t really achieved much.

Many want his office abolished. I have a better idea: replace it. Establish one with a wider mandate — an Office of the Ambassador for Human Rights. This office could go beyond merely shining a light on the persecution of religious minorities abroad by taking on a mandate to keep the Government of Canada itself honest. It could engage with the relevant government departments, conduct proactive analysis of Canadian interests abroad and seek ways to reconcile our vital diplomatic and economic interests with our principles.

While there are officials in Global Affairs whose job it is to focus on human rights matters as they affect our economic and diplomatic interests, an ambassador’s office could go outside the hierarchy and directly challenge individual ministerial decisions that could undermine Canada’s reputation. It could help establish a whole-of-government policy framework on human rights, and engage in outreach with civil society groups advocating a principled approach to trade and human rights. That could be useful to public servants too overburdened by management and accountability duties to see the bigger picture.

A human rights ambassador could be Canada’s eyes and ears abroad, monitoring — for example — how these Canadian-made armoured vehicles are being used in Saudi Arabia, and whether they’re being used against civilians. It could help the government frame its response to any evidence the Saudis were using these weapons against civilians.

Had such an office been in place when the previous government was negotiating the Saudi deal, it might have lobbied against it — or not; we’ll never know. But setting it up now would go a long way to ensuring the federal government is more transparent and accountable with future arms export deals.

Our economic and diplomatic interests are vitally important to us as a nation. So is our international reputation. We shouldn’t have to sully one to support the other.

And Errol Mendes says it’s time for Ottawa

Baloney Meter: How meaningful is the Bloc’s promise to ban veiled voting, oath taking?

Notwithstanding public opinion and wedge politics, likely that the experts have it right:

Constitutional law experts believe banning women from wearing veils while taking the citizenship oath or providing public services would almost certainly be struck down by the courts as a violation of religious freedom and equality rights.

“A ban during (the) citizenship oath ceremony is unquestionably unconstitutional,” says University of Waterloo political scientist Emmett Macfarlane, who has written extensively on Supreme Court constitutional rulings.

“I think a ban on front-line public service workers would also be constitutionally problematic, for similar reasons, although a court may entertain arguments relating to job requirements a little more seriously than it would the purely symbolic arguments concerning the oath.”

Ottawa University constitutional law professor Errol Mendes concurs: “If they didn’t use the notwithstanding clause, it would almost certainly be struck down.”

But here’s the tricky bit: the notwithstanding clause can be used to override only some provisions in the Charter of Rights, including religious freedom and equality rights. It cannot be used to override democratic rights, including the right to vote. Since Duceppe’s promised bill would include a ban on veiled voting, he could find the notwithstanding clause would be of no use to him.

“If the adverse effect was on voting rights, which is not covered by sect. 33 (the notwithstanding clause), it would fall,” says Mendes.

Carissima Mathen, another University of Ottawa law professor, agrees: “I think you absolutely could make a separate (democratic rights) argument because the citizen is being deprived of her right to vote.”

If the bill was limited to removal of face coverings for identification purposes before allowing a person to vote, Macfarlane said the courts might find that to be a justified limit on democratic rights.

However, it might be hard to justify requiring citizens voting in Canada to show their faces for identification purposes when Canadians abroad can vote by mail-in ballots – with no way to verify the identities of those who actually mark the ballots.

The Harper government twice flirted with the idea of banning veiled voting but did not ultimately pursue the matter, perhaps due to the constitutional hurdles.

It introduced a government bill in 2007 which was allowed to languish on the order paper. Conservative MP Steven Blaney introduced a private members’ bill on the same subject in 2011, which then-immigration minister Jason Kenney – the same minister who subsequently issued the directive against face coverings at citizenship ceremonies – called “entirely reasonable.” It went nowhere.

Even if the notwithstanding clause did apply to Duceppe’s promised bill, Mathen points out that its use would have to be approved by both the Commons and the Senate, so it’s “not necessarily a slam dunk.”

The Verdict

Strictly speaking, Duceppe’s promise to introduce a bill banning face coverings during voting, citizenship ceremonies and the provision of public services is accurate. He didn’t explicitly say it would be passed or enacted, although that was the obvious implication.

Given the procedural hurdles facing private members’ bills, it’s debatable whether such a bill would ever see the light of day. Were it to be passed, it’s equally debatable whether it would stand up to a charter challenge or whether the government could invoke the notwithstanding clause to get around the charter.

But of course none of this matters as the intent behind both the Conservatives and the Bloc lies more within identity politics than winning legal arguments.

With respect to the public servant issue (where a ban, as Macfarlane indicates, could be justified on the basis of job requirements), the following table, taken from the National Household Survey, shows the representation of religious minorities in all three levels of government:


This table of course only measures religious faith, not the religiosity of followers and the degree to which they request accommodation and/or they wear visible symbols of their faith (e.g., hijab, kippa, turban etc).

Source: Baloney Meter: How meaningful is the Bloc’s promise to ban veiled voting, oath taking? – The Globe and Mail