Blogging for Change

Though political support for the party continues to grow, a consortium of Canadian broadcasters has decided not to allow the Green Party to participate in the leaders’ debates.

This is despite the fact that the Green Party, which is headed by Elizabeth May, recently acquired its first Member of Parliament when Independent (former Liberal) Blair Wilson decided to don the party colours.

Previously, the need to have at least one MP was put forth by the consortiumas a prerequisite for participation in the debates.

As of last week, the Greens have an MP, but their request for participation was denied anyway.

Public interest - defined as having more than 5% support in a recent national poll - was another requirement.

According to the latest Strategic Council poll (PDF), the Greens have about 9% support across Canada. Out west, this number is as high as 12%, compared to just 18% for the Liberals.

Indeed, the Greens are ahead of the Bloc Québécois in nation-wide support. The Bloc is a separatist party with the explicit goal of tearing the fabric of Canada apart, and one which does not even field candidates outside of Québec. Nevertheless, while Bloc leader Gilles Duceppe will be appearing in the debates, Elizabeth May will not.

The NDP’s Michael Byers, Member of Parliament for Vancouver-Centre, supported the decision of the consortium. He is quoted calling May the leader of a “single-issue party:”

“My leader, Jack Layton, is running to be prime minister and so are the leaders of the other parties,” Byers told CBC News on Monday from Vancouver. “This is a leaders’ debate. It’s not an environment ministers’ debate.”

(Source: CBC)

The wholly incorrect perception of the Greens as a single-issue party is precisely the problem that Elizabeth May is unable to address now that she has been denied access to the debates.

May said in a statement that she is considering pursuing legal action against the TV networks. The Green Party has retained Toronto lawyer Peter Rosenthal to spearhead the fight.

[Cross-posted at Law is Cool]

At an historic conference in Dublin this week, 111 countries agreed to a near-complete ban on the use of cluster munitions.

After 10 days of talks, and much lobbying and pressure from groups such as the International Committee of the Red Cross, delegates reached an agreement which is set to be ratified by their countries in December.

The agreement recognizes that there are a number of problems with cluster munitions. In particular, they spread deadly explosives over a large area which remain dormant on the ground. Unexploded ordinance spread in this way can pose a danger to civilians even many years after the conflict is over. In this respect, they are akin to landmines, which were banned by 158 countries under the Ottawa Treaty.

Signatories at the Dublin Conference will be required to stop manufacturing the weapons and will also have to destroy their existing stockpiles. Countries that have actually used cluster bombs in the past will also be required to assist in cleaning up the unexploded ordinance that they created. Though not all cluster munitions were banned, those that are still allowed to be used are required to have a self-destruct or self-neutralizing mechanism.

Unfortunately, not all of the major world military powers signed the cluster munitions ban on May 29th, 2008. Notably absent were The United States, China, Japan, Russia, India, and Israel.

The United States, one of the primary manufacturers and users of cluster munitions has been the subject of much criticism for refusing to participate in the Dublin process.

Some lawmakers have stepped up efforts to encourage the U.S. to sign on to the ban. That was the subject of a joint resolution introduced on June 3rd by Sen. Dianne Feinstein, Sen. Patrick Leahy, and Rep. James P. McGovern. The text of the resolution acknowledges that:

“Civilians make up 98 percent of those killed or injured by cluster munitions of which more than 25 percent are children.

…

“[and that in] Laos alone there are millions of unexploded submunitions, left over from United States bombing missions in the 1960s and 1970s, and approximately 11,000 people, 30 percent of them children, have been killed or injured since the war ended.”

However, State Department spokesperson Tom Casey is quoted as saying:

“While the United States shares the humanitarian concerns of those in Dublin, cluster munitions have demonstrated military utility, and their elimination from U.S. stockpiles would put the lives of our soldiers and those of our coalition partners at risk.”

Despite the refusal of the United States and other military powers to sign on to the ban, the Dublin Conference was largely a success. This is especially so from a moral perspective.

According to the Christian Science Monitor:

“Activists are hopeful that the treaty will influence nonsignatories, pointing to the 1997 ban on land mines. Of a handful of nations – including the US – that didn’t sign it, only Burma still uses land mines, says Simon Conway, co-chair of Cluster Munitions Coalition. ‘We are trying to create an international norm that would make it extremely difficult for anyone, even countries that don’t sign up, to use the weapon.’”

Israel and Syria are publicly engaged in a new round of peace talks aimed at ending the bitter conflict between the nations that has been going on for half a century.

Israel, Syria, and Turkey have all publicly confirmed that peace negotiations have been taking place. Turkey is acting as a mediator between the two countries.

Herb Keinon of the Jerusalem Post writes that the significance of today’s announcement is not that talks are taking place (he points out that both countries had been hinting at negotiations at least since March), but that they are taking place publicly.

Keinon writes:

“Israel, at least until Wednesday, did not want to give Syria a photo opportunity to help it out of its isolation.

The question that needs to be asked now is what changed? One explanation preferred in Jerusalem is that the preliminary talks that have been taking place have convinced Israel that Damascus is indeed interested in substance, and not just form.”

Many Mideast commentators remain skeptical, and with good reason.

Ehud Olmert, the impugned Prime Minister of Israel, is currently embroiled in a corruption probe; it is the fifth such probe since he took office just two years ago. Opposition critics have charged that today’s announcement is aimed at diverting attention away from the government’s political problems.

The Associated Press quotes Yuval Steinitz, a member of the Knesset representing the Likud Party as saying:

“Evidently the prime minister is so corrupt that he is not only taking cash money in envelopes but he is ready to trade the Golan Heights and our most vital interests in an attempt to save himself from criminal investigation.”

Furthermore, this is not the first time that the two countries have attempted to reach a peace settlement. Talks broke down in 2000 over the contentious piece of land known as the Golan Heights. The area sticks out like a finger from North-Eastern Israel.

Below are a couple of photos I took in 2004. The pictures were taken at an abandoned fort that sits atop Mount Bental in the Golan heights.

This elevated region is of great strategic significance, in that it overlooks Lebanon, Syria, and to a lesser extent, Jordan.

In the 2000 talks, Israel was apparently willing to relinquish partial control of the Golan Heights, which is home to roughly equal numbers of Israelis and Druge Arabs that consider themselves Syrian. However, the talks came to a head over control of a small strip of the Golan which borders the Sea of Galilee.

The Sea of Galilee is Israel’s largest freshwater lake. Control of water resources is of increasing strategic significance all around the world, and the Middle East is certainly no exception. Not surprisingly, this will be a difficult bargaining point in this round of talks.

Nevertheless, it’s fair to say that both sides want peace, and the fact that talks are being conducted publicly is a very positive development. I remain optimistic.

The Supreme Court of Canada this morning issued a landmark decision on sentencing under the Youth Criminal Justice Act (YCJA). Before I get into the constitutional (and political) implications of SCC’s decision in R. v. D.B., 2008 SCC 25, I’ll start with a bit of background. The Harper government campaigned on a promise of amending the YCJA to impose tougher sentences on youth.

In particular, the Conservatives seem to have taken issue with the Supreme Court’s decision in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 that deterrence and denunciation are not goals of sentencing applicable to youth. Instead, the court ruled that youth sentences must be aimed at “rehabilitating and reintegrating young persons into society … by holding young persons accountable through the imposition of meaningful sanctions related to the harm done” (para 4).

Beyond the government’s desire to make deterrence a a principle of youth sentencing, the Conservatives have also been trying to implement automatic adult sentences for youth convicted of violent crimes or repeat offences.

Today’s ruling in R. v. D.B. will throw a monkey wrench into Harper’s plans. Allow me to explain.

When sentencing youth under the YCJA for so-called “presumptive offences” (e.g. manslaughter), the onus was on the youth to prove why they shouldn’t be treated as an adult. D.B. was charged with manslaughter, and he brought a Charter application claiming that these reverse onus provisions of the YCJA were unconstitutional and should be struck down. The Supreme Court, by a narrow 5-4 margin agreed with him.

So the reverse onus provisions are now unconstitutional. It sounds like a rather unimportant decision that will not have a particularly large practical impact on youth criminal justice in general.

But here’s where it gets interesting.

In coming to its decision, the Supreme Court recognized a new principle of fundamental justice: an implied constitutional principle. According to Abella J., who wrote for the majority, it is a “principle of fundamental justice that young people are entitled to a presumption of diminished moral culpability” (para 70).

Justice Abella also wrote (at para 68) that:

… a broad consensus reflecting society’s values and interests exists, namely that the principle of a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought to operate.”

Since a new principle of fundamental justice has been implied into our constitution, the courts are now empowered to strike down legislation that violates it. Whatever attempts the government makes in the near future to the YCJA, they will now have to be consistent with the notion that young people have diminished moral culpability.

This morning the California Supreme Court ruled that the state’s laws restricting marriage to heterosexual couples were unconstitutional. Following a close 4-3 decision, California has become just the second state in America (after Massachusetts) to legalize gay marriage .

The lengthy (174 page!) decision entitled “In re Marriage Cases” represented a consolidated appeal from 6 cases. You can read the full text of the decision here.

Californian homosexual couples were already entitled to virtually all of the same benefits available to straight married couples under the Domestic Partnership Act. The court, however, determined that the language and statutes governing “domestic partnerships” did not go far enough. The definition of marriage in California would no longer exclude homosexual couples.

At p. 120, George C.J. (Kennard, Werdegar, Moreno JJ. concurring) wrote:

… [W]e determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.

In an interesting dissenting opinion (for fans of the “legitimacy of judicial review” debate), Baxter J. wrote that the majority had engaged in “legal jujitsu” and had been overzealous in interpreting the constitution. He was of the view that there was nothing implicit or explicit in the constitution which allowed the recognition of marriage between a same-sex couple. Therefore, he wrote, the majority had erred in viewing the progressive changes made by the legislatures in recognizing domestic unions as creating an implicit constitutional principle that marriage should extend to homosexual couples.

At p. 5 of the dissent, Baxter writes:

Recent years have seen the development of an intense debate about same-sex marriage. Advocates of this cause have had real success in the marketplace of ideas, gaining attention and considerable public support. Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should, in civil parlance, include the legal unions of same-sex partners.

But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.

In any event, gays and lesbians in California have won a significant civil rights victory today in California. Following the 30 day suspension period, they will be legally allowed to marry in California.

Conservative groups must now petition for an amendment to the state constitution if they wish to challenge the court’s decision. According to the New York Times, these conservative groups have already gathered over a million signatures supporting a constitutional ban on gay marriage. The initiative will likely be put to the voters in November. Interestingly, despite vetoing two attempts by the legislature to recognize gay marriage, Gov. Schwarzenegger has said that he will not support the constitutional ban initiative.