Canada’s “Fair Elections Act”: What Is It Really About?

The right to vote and the integrity of the voting process is at the heart of democracy. Governments derive their legitimacy from a fair and free right to vote. Democracy and elections to not belong to any one party, nor is organizing or controlling elections the right of the government. Elections are too important to leave any one party or government. Advanced democracies leave that responsibility to independent officers and election commissions.

Canada is universally held up around the world as a country where elections are fair and democratic. So, what is it about our election laws that motivate the Harper government to ram through Bill C-23?

The Harper Conservative spin machine points to voter fraud and the need for stiffer penalties. There is no real threat or evidence of voter fraud. And, even if there was those investigations and prosecutions should be undertaken by independent offices such as Elections Canada.

Bill C-23 proposes major changes, with major implications. It is more than 250 pages long. I will attempt to deal with a few key areas:

1.     The government’s Bill would eliminate vouching (voters would also be barred from using the information card Elections Canada mails to the voter). The Supreme Court of Canada found alleged voting irregularities in a Toronto riding involved mistakes and oversights on the part of officials. It concluded, even those voters who had been vouched for, acted in good faith and were legitimate. Irregularities do not necessarily equate to fraud.

Are the Conservatives’s proposals proportionate to the problem? The government grossly exaggerates and distorts the evidence to justify the elimination of vouching. Many experts warn that this measure would likely discourage and disenfranchise thousands of voters – youth, the poor, homeless, seniors in care facilities, and minorities.(1) The ACLU has warned of US style voter suppression, “They show up, they wait in line, they get to the front of the line and hear, ‘Sorry, you can’t vote, you’ve gotta go home. And then that person says, “Ah screw it, I don’t have time.’”(2) Or, does not have the requisite ID. As for fraud, political insiders misdirecting voters with “robocalls” is a bigger problem, than vouching irregularities.

2.     The Bill does create new offences and fines, but it also substantially reduces the independent investigation powers of Elections Canada. It proposes moving the Commissioner out of Elections Canada and into the Office of the Director of Public Prosecutions. It would restrict how the Chief Elections Officer and the Commissioner communicate and creates a barrier between the two, including what they may tell the public about matters or individuals under investigation. How does dividing up one office and authority for investigations improve ability to investigate and pursue wrongdoers?

3.      Bill C-23 eliminates the ability of the Chief Electoral Officer to consult with Canadians and disseminate information on electoral democracy, to publish research and information programs, and civic engagement. This includes public outreach to counter declining voter participation by encouraging people to vote, such as engaging young people and new Canadians to vote and in participatory democracy. That is healthy for a democracy; the government’s proposals erode the health of our democracy.

4.      Bill C-23 allows a political party to exempt from campaign spending limits the cost of contacting previous donors. This is a blatant attempt to favour the Conservatives who have the largest and deepest list of past donors. The cost of outreach to new donors would be a campaign expense. The Conservatives have an obvious advantage over their opponents. This and other “minor” proposals combined are an end run around limits on election expenses. Remember the adage, “Follow the money.” It is a partisan and huge campaign spending loophole, and not something that helps advance democracy.

5.      Bill C-23 would introduce more partisanship, even dangerous aspects. It proposes that the winning party in each riding have the power to nominate the riding’s central poll supervisors. Yes, you read it right! These are the people who are in charge of the polling place. Under the current law, they are selected by non-partisan officials of Elections Canada. The new law risks mischief and bias.

The Bill also provides that parties be given a post election list of eligible voters who cast ballots – sounds not so bad in theory – but, raises concerns about voter privacy rights. Currently, parties do try and monitor who has voted on election day to get out their vote. But, shouldn’t voters and their participation remain private in the hands of Elections Canada and not a political party? There is potential of misuse of that information for improper and partisan purposes.

The Harper Conservative government is the most partisan in modern Canadian history, and while some may even contend hyper partisanship has a place in politics, it has no place in updating something as important as election laws. The UK electoral commission was consulted extensively before changes to election laws. That’s how it should be in a modern democracy, but apparently not with the current federal government.

This is the new normal in Ottawa; laws being rammed through parliament. The Harper government is using closure as a way to end debate.

As a lawyer, I might suggest that the some of the new provisions would not ordinarily survive constitutional challenge in the Supreme Court, but that determination would likely not occur until after an election – one manipulated and designed to help re-elect the Conservatives. But, this is not an ordinary government – after all, this is a government that tries to stack the courts with Conservative and partisan judges, hence the Marc Nadon fiasco. Could Vic Toews be next in line for appointment to the highest court? PM Harper just appointed the highly partisan and abrasive Toews to the Manitoba Court of Queens Bench. Is it so far-fetched to think we are on our way to the Canadian judicial version of the Scalia, Alito and Thomas. Remember Bush v. Gore? There is no impediment to Harper appointing judges like Toews, as there was in the SCC case with a Quebec geographical and civil law requirement. Since 2006, this government has been appointing more conservative judges, keeping it under the radar, incrementally changing the judicial culture and pool for future appointments to the highest courts.

Our tradition of Conservatives, Liberals and New Democrats respecting basic rights and norms, including the right to vote and have a say, is being eroded by the Harper Conservatives. The compliant backbench does not seem to have the backbone or integrity to speak up for Canadians and basic democratic practices.

This is a fundamental issue of democracy. All fair-thinking Canadians would put democracy and electoral fairness above the interests of any political party. Where does your Member of Parliament stand on Bill C-23?

The Conservative government’s (Un)Fair Elections Act appears to really be about undermining electoral participation and public debate. It is US Republican-style voter suppression and winning elections unfairly.

(1) 120,000 voters based on 2011 election;
(2) Witold Walczak, Legal Director ACLU, Canadian Press, February 16, 2014.

* Reference sources also include: Draft Bill C-23, CBC “The House”, Globe & Mail, National Post, Huffington Post, rabble.ca, Lead Now, Broadbent Institute.

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Need for equal society has never been more apparent

Originally published by Kamloops This Week (December 31. 2013):

“Issue facing Kamloops in 2013 & 2014: What were they? What will they be?”

The biggest issue is an evolving one, what kind of city and community are we going to be? The emergence and visibility of commercial and retail hubs in different areas of the city was distinctly noticeable in 2013 – such as Dallas, especially the North Shore, and future plans for mixed development at TRU – through the hard work and vision of business, civic and citizen groups. Much effort has gone into shifting Kamloops from a resource dependent community to one with a more diversified economy over the past 25 years. It is a large spread out city and still heavily automobile dependent. These hubs and a move towards densification will improve accessibility, attractiveness and increase the diversity of areas within the city. However, the holiday season brought home more visibly the plight of many in our midst, across our city, that are struggling to make ends meet – child poverty and hunger is real in our city. Food bank usage has become permanent. More working and middle class families are struggling. Growing inequality – an unraveling – is an emerging issue for our city, as it is across the continent.

It is the same issue: for 2014: How can we find positive solutions and move towards a happier, fairer future? Our region, province and country remain overly dependent on resource extraction for wealth, decades after recognizing our vulnerability to a “too many eggs in one basket” economy. Profound economic shifts and the great recession – with a lack of good paying jobs and cutbacks – has resulted in a growing inequality. Too many people live in insecurity. This creates negative pressures and it is dividing our communities. It will take responsible leadership, respectful dialogue (not “us versus them”), and unity of purpose to look into the future and make proper decisions. Creating the new jobs of the future economy and leaving a positive future and healthy environment for our children is the challenge of this generation – it will require wise investments and hard choices.

Inequality is bad for our economy and our environment. Societies with a bigger gap between rich and poor are bad for everyone in them – including the well-off. Almost everything – from life expectancy to mental illness, unsafe communities to children’s educational performance – is affected not by how wealthy a society is, but how equal it is. More equal societies are healthier and more successful.

The choices we make, how we live, our economic system and governance policies will determine what kind of city, country and people we will be. These are issues for 2014, including right here in Kamloops.

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Canada’s Conservatives: Debasing Democracy

Canadians should be deeply concerned at the erosion and debasement of democracy by Canada’s federal Conservative government.

Using CSIS and the RCMP to spy on environmentalists, including seniors in a Church basement in Kelowna and the all-native high school basketball tourney in Prince Rupert, all the while cozying up to energy companies; to complicity in spying on leaders at G-8 and G-20 summits while using force to suppress democratic protests; NSA type intrusions into the private lives of Canadians; manipulating and stacking advisory committees on food safety, the environment and judicial appointments; stifling parliamentary debate, omnibus bills, prorogation and vicious personalized attacks on political opponents.

It is inflicting harm on our democratic culture.

The muzzling of government scientists, weakening independent governmental watchdog agencies, and attacks on Kevin Page – the outgoing and highly effective Parliamentary Budget Officer – who exposed the real costs and truth behind government budgetary numbers are further examples of debasing of responsible and accountable parliamentary governance.

Canada’s declining image on international human rights and climate change – being designated as international “fossil of the year” – is a blight on it’s historic and hard-earned image as a respected and responsible global player. It is reflective of a government that does not listen to voices, at home or abroad.

The sordid display during parliamentary Question Period, by the PM’s right hand man, Paul Calandra, refusing to answer questions and defying the Speaker, is a new low. It shows a disturbing contempt for parliamentary principles and practices. It is more than unaccountability; it reflects an arrogance and bully political culture that says, “We are perfect, you are worthless.”

Conservative MP’s and Senators do what they’re told or keep silent, their loyalty to the party seemingly greater than respect for fairness and rights. These are issues that transcend party affiliation; they are integral to respect for democracy and ought to concern all Canadians – irrespective of political stripe. Power corrupts. As the song goes, “You don’t know what you’ve got, ‘til it’s gone.”

We should all be concerned.

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Submission: Vanished and Missing Aboriginal Women (Inter-American Commission on Human Rights)

Inter-American Commission on Human Rights
Attention: Dinah Shelton, Rapporteur on the Rights of Indigenous Peoples

Dear Professor Shelton:
Re: IACHR: Canada – Vanished and Missing Aboriginal Women – Investigation

I am a Canadian lawyer, a former judge and a member of Kellogg College, University of Oxford (Mst. International Human Rights Law 2010). I have thirty years experience in criminal justice and human rights, including working with aboriginal persons and issues in British Columbia. I am also currently the criminal law duty counsel for the Haida Gwaii (formerly Queen Charlotte Islands), islands off the northwest coast of British Columbia. Due to the small population and remoteness of the islands, the islands are served by a circuit court that is held one week each month. I end up dealing with perhaps 90% of the criminal law cases that come before the court on Haida Gwaii.

My purpose in writing is the draw your attention to serious issues that affect aboriginal persons, including especially women who come before the criminal justice system, and their vulnerability along the “Highway of Tears” of northwestern British Columbia.

Many of the persons who come before the criminal courts live with poverty, addiction or disabilities. This may include those with mental health needs, Fetal Alcohol Syndrome Disorder, and especially Aboriginal persons, who are disproportionately over-represented among Canada’s prison and criminal justice population.

Canada has been governed by the Conservative Party led by PM Stephen Harper since 2006. A major platform of the Conservative government has been a “law and order” agenda, with more than thirty criminal law bills having been passed since coming to power, the intention of which without exception has been on harsher and mandatory jail sentences. These legislative changes have been the most extensive in more than 40 years of criminal law legislation or reform. The changes have been driven by ideology and politics; not based on evidence and contrary to the views of most criminal law experts – they also are contrary to the general trend in most western countries.

These criminal law amendments have taken a heavy toll especially upon aboriginal offenders, indigenous families and communities. The general hardening of attitudes has also permeated the judiciary, including approach to sentencing. Broadly speaking, Aboriginal offenders have borne the brunt of these legislative changes and mandatory minimums.

The judges that regularly sit on Haida Gwaii are generally sensitive to over-incarceration of aboriginal offenders, but their hands are tied by the mandatory minimums or lack of suitable local facilities. Nationally and provincially the picture is bleak; too many judges are either unwilling or incapable of properly considering alternatives to incarceration for Aboriginal offenders, despite critical rulings from Canada’s highest court.

For example, if you are arrested on Haida Gwaii, the sheriffs will fly from the mainland to collect the arrested person, fly the person back to the mainland (City of Prince Rupert) and then transport him or her 800 kilometers, if they are denied bail or imprisoned, to Prince George where the nearest provincial jail is located. Upon release, the person must then make their way 800 kilometers back to Prince Rupert and catch the ferry from the mainland that departs for Haida Gwaii twice a week. That person, if she is female, will make this 800 kilometer trip back to her reserve via the “Highway of Tears” — where Aboriginal women have gone missing over the years.

For many minor offences, mandatory minimum jail sentences can be as low as 14, 30, 60 or 90 days. Alternatives to incarceration are either not legally available because of the mandatory minimums or due to the general hardening of attitudes within actors of the criminal justice system. In most communities, a sentence of less than 90 days may, with judicial recommendation, be served at the local police station on weekends – this is particularly effective with persons who have employment or family responsibilities. This option is not available on Haida Gwaii because the police (RCMP) take the position they cannot afford to pay the overtime costs required to watch weekend prisoners. The government does nothing to alleviate this disparity and the result is all sentenced offenders on Haida Gwaii must serve their incarceration at the Prince George Regional Correctional Centre. Visits from family members are prohibitive due to the distance and costs involved.

Mandatory minimum sentences are not only expensive and bureaucratic, they create huge consequences for affected persons, such as disruption and government ministry removal of children from single parents because their sole caregiver has been arrested, loss of home, loss of job, or loss of ability to provide food derived from hunting and fishing for families. We have a very sad and disturbing history of neglect and abuse of aboriginal children in government foster care.

After serving their sentence, offenders are given a bus ticket by the British Columbia Correctional Service to make their own way home, including along the “Highway of Tears” of northern British Columbia. Women are highly vulnerable and open to prey. They spend hours in small town bus stations along the way often with little or no money – that is if they do not hitchhike. When they do make it to the coast, at Prince Rupert, they must sometimes wait for the twice-a-week ferryboat to take them back to Haida Gwaii. Some persons do not have a place to stay and are again vulnerable. Some are breached on probation orders for failing to comply with curfews, reside in an appropriate place, or for consuming alcohol or drugs – this only compounds and increases their criminalization and more jail time. The impact upon communities and families is only more pronounced when longer and more punitive sentences are imposed for more serious offences.

A further compounding factor is the police culture or tendency of too often seeking the pre-trial detention of person’s accused of a crime. Since the Haida Gwaii is remote and only served once monthly by a circuit court, all arrested persons are subject to a bail hearing – usually conducted by police officer with a Justice of the Peace, via telephone to suburban Vancouver. Unless the accused is sophisticated and able to line-up a defence counsel via telephone, they go it alone and are highly disadvantaged. I also am surprised at how often the Justices of the Peace, who reside hundreds of kilometers away in a large city, lack understanding or knowledge of the distances and lack of facilities available to such persons. Too many accused persons are detained pre-trial (estimates are 50-60 % of all provincial prisoners are on remand). Poor people are at risk of pre-trial detention at higher rates because they lack the financial resources to, for example, post monetary bail or lack suitable housing or employment. Aboriginal persons are disproportionately affected by these factors.

My main purpose is to emphasize that Aboriginal women are especially vulnerable, as they travel back home along the “Highway of Tears” upon custodial release. Canada has a sad record of missing or vanished aboriginal women.

There is also the aspect of systemic and racist discrimination. The harsh and punitive legislative changes passed by Canada impact most greatly the poor, mentally ill, those suffering from addiction, and certain racial minorities – especially Aboriginal persons. For many such persons daily life is already a struggle. Poverty and lack of employment are very real problems. The impact of the legislative changes is causing extreme hardship and it is unjust. And, most significantly it places Aboriginal women at increased risk of harm and predation. It risks making an unsolved problem, even more problematic.

Although, I have referenced the example of Haida Gwaii based on my work experience on the circuit court, the issue and concerns are of much wider application. Canada has a naive and self-serving narrative of a progressive leader on human rights and racial equality. Denial of racism is entrenched in the national narrative and culture. I submit, that the criminal justice system is infused with racial bias and underlying the law and legal system is an entrenched and hidden racism. Canada has failed in its human rights and constitutional obligations to its Aboriginal peoples. It’s criminal law and justice system is imprisoning Aboriginal men and women at a disturbing rate. And, in its worst aspects, it risks or results in the death and disappearance of aboriginal women. Indifference can also be a breeding ground for injustice and harm.

I humbly thank you for your consideration and sincerely hope that my letter will be of assistance in adding context and perhaps a different perspective to your investigation and considerations.

Yours truly,
Bill Sundhu.

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Twelve Years After 9/11: What Have We Learned?

This week the Obama administration issued a travel warning to its citizens and shutdown several US embassies across Africa and the mid-East – in response to the threat of a terrorist attack. Amongst my papers, I found a clipping I had kept from November 27, 2008 describing coordinated attacks on the city of Mumbai. The newspaper headlines screamed, “Terror attacks put Mumbai under siege” and “India’s Defining Moment.”(1). Media pundits referred to “26/11” as India’s “9/11” and asserted it had permanently altered a dynamic city of 12 million. The first of the newspaper clippings carries a Reuters photograph showing a police officer guiding an elderly man through a devastated train station. It is a powerful and emotive image. Dropped baggage and belongings, bloodstains and fallen sandals are displayed throughout the wide expanse of the deserted train station. The elderly man wears a dhoti and sandals. He does not display the symbols of modernity. He is tiny, barely reaching in height the mid-chest of the police officer who is holding his hand and leading him gently across the station and carnage left behind in the wake of the bloody attacks. The elderly man is worn by time, graceful, humble and dignified. It’s as if he has seen it before. He is India.

It is an ancient civilization and the world’s largest democracy. The modern state of India was born at the stroke of midnight August 15, 1947, and immediately beset with extreme sectarian violence and partition into two states – Pakistan and India. Nearly one million persons were killed. My own history is shaped by the horrors of that time – my mother is the sole survivor of her family that succumbed to the slaughter. In the decades since independence, India has had spasms of extreme violence – 3000 Sikhs murdered by enraged mobs after the assassination of Prime-Minister Indira Gandhi by Sikh bodyguards, thousands of Muslims murdered by organized Hindu extremists in 1993 in Mumbai and Gujarat in 2001. She has experienced the deaths of tens of thousands in insurgency and violence involving separatist movements and terrorism in Punjab and Kashmir. Human rights have been violated by extremists and state security forces. Despite these violations and millions living in grinding poverty, over-population, corruption and complex challenges; India is a genuine democracy. She has well-organized elections, a free press, and an independent civil service, military and judiciary. Judges and lawyers of extraordinary quality are found in her courtrooms. The value of rule of law and right of fair trial is understood by Indians; better than most.

Outside the Indian subcontinent, perhaps no region outside of Iraq, has experienced so many dead from terrorism. Communalists tried to exploit the attacks in Mumbai and inflame passions and fear. And yet, India has not succumbed to authoritarian solutions. History suggests she will not – she is resilient and Indians steadfastly committed to democracy. India may, also, take another look at her anti-terrorism laws and measures. What will she learn from the experience of the western liberal democracies and what will they learn from her?

Terrorists care little for our liberties. Nor are our liberties and freedoms accidental accretions. They have survived the test of time and define who we are. We have our own painful history of lapsed rights and persecution of minorities. The wartime internment of the Japanese in North America and the failures of British justice in Northern Ireland are but a few vivid reminders of historical circumstances in which democracies have succumbed to emotion, fear and bigotry and committed human rights violations. Terrorism confronts us with the same conundrum.

The Obama Administration has disappointed human rights advocates. Obama promised to close Guantanamo Bay in his first year. Almost all the Bush anti-terrorism measures from the Patriot Act, to increased surveillance and special military trials remain in place. A vast security apparatus and industry has proliferated. Iraq, Afghanistan, Abu Ghraib, Guantanamo, “extraordinary rendition” are but the most prominent examples of the “war on terror” bringing violence and bloodshed to millions.

In 2009, the UN Special Rapporteur reported the US system of extraordinary renditions and secret detention “violate the prohibition against torture and other forms of ill-treatment.” How is it that fundamental human rights were surrendered so easily, by a country with one of the world’s most robust legal systems? Americans do know how to effectively prosecute terrorists in their regular civilian courts; they have been quite good at it. So why abandon it? By circumventing fundamental precepts of human rights law, they handed their opponents a massive propaganda weapon and a new recruiting tool.

Muslims in particular are targeted. A person’s religion has become a basis of suspicion and surveillance. We pay a very high price for a society of fear. The dollar cost of the “war on terror” is mindboggling; four times the amount expended during WWII.
In Canada alone, an additional $92 billion has been spent on national security in the first ten years after 9/11 and our P.M. calls “Islamicism” the biggest security threat – ignoring climate change. The human and political costs are incalculable. Perhaps, terrorist acts have been prevented, but were the costs justifiable? Who profits? Are we safer? What have we learned?

Human rights are not a luxury created for easy times; they were created for harsh exigencies, borne out of the ashes and horrors of the Nazi atrocities. And yet, we have done much harm to them in the rush of the “war on terror.” We risk “taking the human out of human rights.” (2)

The attacks on Mumbai ought to remind us of the resiliency of the Indian state and its commitment to democracy. India has confronted Islamic militancy from Pakistan into Kashmir since the 1980’s. Months before 9/11, hijackers forced an Indian Airlines flight to Taliban-held Kandahar and negotiated the release of a convicted terrorist later implicated in the murder of Daniel Pearl. In an ominous foreshadowing of events to come, the Taliban bombed the ancient Buddha’s of Bamiyan. Tens of thousands died in terrorist acts directed against India, but the West remained indifferent.
Nearly three thousand persons died in the attacks of 9/11. The spilling of blood elsewhere – even, in the thousands – didn’t seem matter to North Americans as much as media fueled obsession with a missing beauty queen, or perhaps because the victims were a different colour – that is, not until 9/11. Perhaps, the world’s “greatest democracy” could learn something from the old and the ancient; about resilience, restraint and being true to democratic principles. It’s not to say that India hasn’t committed human rights abuses – it has, but in the face of massive problems including poverty, it didn’t overreact or overreach.

India is transforming into a global power. It has had a protracted struggle with the scourge of terrorism. The United States of America, the global superpower, when confronted with spilled blood on its own soil, abandoned a leadership position on human and civil rights at first real crisis and challenge. When the going got tough, the superpower dropped the torch and threw suspects into the darkness of secret prisons. It unleashed its fury at faraway places.  It was “Liberty’s lost decade – from Guantanamo Bay and Abu Ghraib to Bradley Manning and Edward Snowden” (3).

Who will emerge as a world leader on human rights, carry the torch and shine light into the dark corners, and lead the pathway forward? Few of us have all the answers, but if we do not ask the right questions – we will surely not find the answers we need. One wonders if an insular superpower, wounded and angry, might possibly learn something from an ancient and rising power. Or, will it be others – not the world’s two biggest democracies – that pick up the torch?

 

1  Globe & Mail, 26 & 27 November editions, 2008.

2 Conor Gearty, The Hamlyn Lectures, Can Human Rights Survive?, Cambridge University Press, 2006, pp. 130,132.

3  The Economist, August 3-9, 2013.

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Travels to Tunisia: Training Tunisian Judges in Human Rights

The Tunisian revolution of January 2011 sparked the “Arab Spring” pro-democracy movements that led to the fall of Arab dictators. The aftermath of revolutions involve messy transitions; a crucial period in which success or failure of democratic uprisings is determined – think of Iran, after 1979. Tunisia is experiencing a rough period involving a struggle for control of the revolution and future direction of the country. It is in this evolving context that I recently travelled to Tunis to assist in the training of members of the Tunisian judiciary.

The program “Training of Tunisian Judges” is funded by the Swedish International Development Agency (SIDA), and provided through the International Bar Association, Human Rights Institute. The objectives of the program involve infusing the Tunisian judiciary with knowledge of international human rights law, including an independent judiciary. Judicial independence is a crucial ingredient of a democratic society and respect for rule of law. International human rights law and treaties enshrine the fundamental principle of an “independent and impartial” judiciary. The African Charter on Human and Peoples’ Rights enshrines the additional requirement of a “competent court or tribunal” [Art. 7(1)(b)].

The training sessions occur monthly over the course of one year and are intended to encompass practically every member of the judiciary and thereby build an element of critical mass. My co-trainers for the June 2013 session were from the UK and Morocco. The session had 30 judges, from around the country, of which one-third were women. The training required simultaneous translation in English and Arabic and was provided with excellence. My seldom used French language skills were useful and appreciated in social settings.

Despite decades of authoritarian rule, Tunisia is a secular society and that was reflected in the judicial contingent. The judges appeared genuinely interested and committed to fundamental fairness, judicial independence, democracy and respect for rule of law. The training covered knowledge and safeguards concerning due process and fair trial. My presentations included introduction to international human rights law and concepts, major universal human rights instruments and mechanisms for their implementation, major regional human rights treaties and jurisprudence, international legal standards for the protection of persons deprived of their liberty, and judicial independence and the role of the legal professions.

The first day did involve overcoming some skepticism or suspicion voiced by a couple of judges as to why the program and what human rights meant – including western ideas, hypocrisy on Palestine, and homosexual rights. These preconceptions were addressed and personal rapport and trust established – all the while emphasizing that human rights are universal, indivisible, interdependent and interrelated – with practical examples and jurisprudence.

I found the Tunisian judges to be gracious, intelligent and highly capable. Their professional fear and concerns related to a lack of unity amongst the judiciary and lack of judicial independence. They also feared for the direction of their country. The transition has been marred by violence, assassination, depressed economy and social unrest. A “moderate” Islamist party – Ennahda – won the polls and there is deep suspicion as to its real motives and commitment to genuine democracy.

A draft constitution makes Islam (not Sharia) the official religion, and while referencing universal human rights, it makes them subsidiary to the constitution. Prominent human rights lawyer and opposition leader, Chokri Belaid, a strong critic of the supporters of the fundamentalist Islamists – sometimes referred to as “Salafists” – was assassinated on February 6, 2013, and four radical Islamists were detained in relation to his murder. The PM denounced the murder and formation of a caretaker government until a new election is held.

Meanwhile, many Tunisians resent Saudi and Qatari money being funneled to build Mosques, propagate their ultra-conservative brand of Islam (Wahhabism), and finance Islamic radicals. Salafists have attacked theatre performances, music concerts, journalists, secular leaders, and political opponents. The government dismissed 82 judges without any due process and deep concerns about subordination of the judiciary to the executive branch abound. The government judicial bodies are stacked with government appointees. The judges went on a strike and the issue remains up in the air.

The defendants in the violent attack and burning down of the US embassy received only two year suspended sentences for their crimes. The double-edged justice became only more visible when two youths who spray painted graffiti on the walls of a religious site, calling out certain leaders as “dogs”, were imprisoned for two years. Judicial independence or not, there is widespread belief in political interference in the judicial and legal decision-making process. There is suspicion the government says the right things, but looks the other way with the Islamists or outright interferes and manipulates power to create an Islamic state and society.

It is essential the judges have unity and fight to secure judicial independence. They are also terribly underpaid and that makes it vulnerable to corruption. I was left with great respect and admiration for Tunisians. The capital Tunis and environs is highly secular and one of the goals of the 2011 revolution was to bring judicial independence through democratic transition. The struggle is on and democratic allies and institutions around the world could lend an assisting hand in strengthening democratic groups and institutions, including rule of law and an independent judiciary.

Ultimately, the fate of the revolution will depend on Tunisians themselves. That does not mean we must stand on the sidelines as cheering, foreign bystanders. We can help build a sustainable democracy on the ancient shores of North Africa. There is cause to be optimistic based on the Tunisians I met; a highly impressive, informed and dedicated people. It was an humble honour, informative and enriching experience to have been invited to work with the Tunisian judges on behalf of the International Bar Association.

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Criminal Law & the Poor in Canada: Transcript – Senator Jaffer on my Submission to Canadian Senate

Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak at third reading of Bill C-37, An Act to amend the Criminal Code.

This bill amends the Criminal Code to change the rules concerning mandatory surcharges. The purpose of the bill is to double victim surcharge amounts and to make them mandatory for all offenders convicted of a criminal offence.

The bill amends section 737(5) of the Criminal Code to eliminate judicial discretion; section 737(2) of the Code to increase the victim surcharge from 15 per cent to 30 per cent of a fine imposed by the court; section 737(2) of the Code to increase the victim surcharge from $50 to $100 for offences punishable by summary conviction; and section 737(2) of the Code to increase the victim surcharge from $100 to $200 for offences punishable by indictment if no fine is imposed by the court.

Senator Jaffer: This bill will not follow the Gladue principle, which the Supreme Court of Canada has established must be taken into account when sentencing Aboriginal peoples. As Minister Nicholson stated, “This bill applies to all individuals convicted of a criminal offence committed in this country.”

Honourable senators, last weekend, I met an amazing human being, Mr. William Sundhu. Mr. Sundhu has practised law in British Columbia for 30 years. He is a former judge and a member of Kellogg College, University of Oxford. He has had a distinguished career in criminal trials, human rights and community leadership in British Columbia. He has worked in trial courts, predominantly in criminal law, including 11 years on the bench in the interior and northern regions of British Columbia. He shared his perspective on the impact that Bill C- 37 would have on certain Aboriginal people in Canada. He wrote:

Many of the persons who come before the criminal courts live with poverty, addiction or disabilities. This may include those with mental health needs, Fetal Alcohol Syndrome Disorder, and especially Aboriginal persons, who are disproportionately over-represented among Canada’s prison and criminal justice population.

(1540)

Certain racial groups are also overrepresented in our criminal justice system.

Bill C-37 only further compounds criminalization and the serious challenges facing these groups because they do not have the ability to pay the mandatory surcharge.

Some provinces do not have Fine Option Programs.

That generally only leaves the option of a warrant of committal.

In remote and isolated communities, there may not be a court sitting for weeks or hundreds of kilometres away in a larger centre.

Upon arrest for non-payment, a person may be held in custody for several days before they can appear before a judge and seek release on bail.

Mr. Sundhu continued:

This type of situation is not only very expensive and bureaucratic . . . it can also create huge consequences for affected persons — disruption and ministry removal of children from single parents because their sole caregiver has been arrested, lost their home, lost their job, lost their ability to provide food derived from hunting and fishing for families.

For example, if you are arrested on Haida Gwaii, the sheriff will fly from Prince Rupert on the mainland to collect the arrested person, fly the arrested person back to Prince Rupert and then transport them 800 kilometres, if they are denied bail or imprisoned, to Prince George where the nearest provincial jail is located.

Upon release, the person must then make their way back to Prince Rupert and catch the ferry that departs back to Haida Gwaii twice a week.

That person, often a woman, must make this trip back to her reserve via the “Highway of Tears” — where many Aboriginal women have gone missing over the years.

Warrants of committal can and have profound consequences.

“Trust us” does not resonate with Aboriginal Canadians and for good historical reason.

Some criminal justice experts might also question the wisdom of Fine Option Programs.

Such programs, even if available, may be too much for a person with mental illness or an aboriginal single parent struggling to keep his or her head above water — if they already struggle for example with disabilities, addiction, obtaining suitable shelter, illiteracy, language problems, counseling and treatment programs.

For many such persons daily life is already a struggle.

Perhaps, at its most basic the removal of judicial discretion to waive victim surcharges will force some persons to choose between food or fines — when it comes to survival for them or their families.

Do their children eat or do they pay the mandatory surcharge to avoid further sanctions or arrest?

For example, in British Columbia’s north-west, on the Haida Gwaii, some Aboriginal persons must survive on monthly government income assistance of only $265 per month, after a modest housing allowance.

Due to it being a series of islands and its geographic isolation, the cost of transport makes food very expensive.

For example, a two-litre carton of orange juice retails at $7.59.

Most persons survive by hunting and fishing.

Poverty and lack of employment are very real problems.

Forcing a single parent or two-person headed family living in poverty to pay a mandatory surcharge will force the family and children into hunger and even more desperate circumstances.

The impact of this legislation on aboriginal, poor and vulnerable persons and families will create manifold problems and costs elsewhere.

It will cause extreme hardship and it is unjust.

Choices will come down to food or fine, a pair of boots for a child or a fine, and so forth. One hundred dollars may not [seem] like much, to some Canadians or legislators, but it means a great deal to a poor person or an Aboriginal parent on Haida Gwaii.

Honourable senators, Bill C-37 is not about seeking justice. It is about arbitrarily disbursing disproportionate punishments. Fairness and sameness are not interchangeable concepts. If we pass this bill, we are rejecting compassion, proportionality, restorative justice, common sense and fairness.

This bill is really wrong, and I ask that honourable senators vote against it.

 

 

 

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Delhi: Darkness to Light, December 16, 2012

Delhi: Darkness to Light, December 16, 2012.

March 25, 2013

By Bill Sundhu

I landed in New Delhi on the night of December 16th, 2012 – a night of infamy. It was my first visit to India after 18 years. Our family histories and ties are in India and it was to be a journey of exploring ancestral places and roots for the first time with our daughter and son. India has that pull. It is inescapable, powerful and profoundly personal. I remember how dark and eerily quiet the streets and gated shops appeared, on the drive through the city to our hotel – it was as if it had been abandoned and devoid of life – a remarkable contrast to the teeming crowds and intensity of daytime Delhi.

That same night, a 23 year old physiotherapy student – Jyoti Singh Pandey – was returning home after having gone out to watch the movie “Life of Pi” with a male companion. I had seen that movie one week prior to landing in India. It was a brilliant and moving film; at a poignant moment the main character submits and utters to heaven, “I surrender. What do you want from me?!” It is a profound question posed by men and women, through the ages. And yet, Jyoti Singh Pandey, did not submit – she fought against her assailants and for her life afterwards in the hospital. She was the victim of an unimaginably brutal and horrific rape by six men on a Delhi bus. She succumbed to her injuries and died on December 29th.

In the days to follow, I found it unbearable to drive by landmarks associated with that horrible night – the mall where she’d seen the movie, Safdarjung hospital, the bus stop where she’d been picked up, or the roadway where her and companion’s stripped and abused bodies had been dumped and no-one had stopped to assist for over an hour, and where police officers callously left them laying on the ground as they argued over who had jurisdiction.

On the night of December 22nd, we were trapped in central Delhi – the authorities had shut down roads and metro stations in and out of the city core – lathi-bearing police officers grinned as we tried to navigate our ways around steel barriers and the young protestors trying to make their way to Raisina Hill. A national symbol, India Gate, and the historic Jantir Mandir had also been closed off by the police wielding lathis and lobbing tear-gas canisters the day before.

The days and weeks to follow were equally painful, disturbing, remarkable and hope inspiring. I am lawyer and former judge somewhat hardened by 30 years in the criminal courts of Canada. I am well-traveled and have witnessed, more than a few times, the gut-wrenching plight of fellow human beings. None of that had prepared me for the depth of anguish one could feel during that time in India.

Much has been written about the brutal crime and does not need repeating. A few observations, however:

• Patriarchy: India is a highly male-dominated society and a deep, long change must necessarily occur in evolving society at large away from patriarchy;

• The Indian political class, judiciary, lawyers, and police must be accountable for their indifference, complacency, sexism and corruption;

• Caste: sexism and sexual violence must not be framed, as was by some, to define the victim as a middle-class. Sexual violence and discrimination is rampant against lower and scheduled caste women;

• Religious and cultural leaders that frame “honour” based on a woman’s “chastity” must be challenged and denounced. Rape victims do not “shame” their families and community; the rapists do – and, so-called leaders must begin to say so;

• Indian Women’s & Feminist Movements: They are second to none and they are heroic. India does not lack for intelligent, articulate, incredibly courageous or forceful voices of women. The discourse in media and on the street by Indian women and feminists was incredibly impressive and insightful. Indian feminists may need solidarity and transnational support; they do not need the misguided, self-righteous, and sometimes superior sounding advice of western women or commentators;

• Patriarchy and imperialist-colonial attitudes both need to be challenged and eradicated;

• Death penalty: I am opposed to the death penalty, including for rapists. Justice is too often imperfect and unequal. Death penalty may also render it harder to obtain convictions against accused rapists.

No doubt there are complex socio-economic, political and historical factors underlying violence and sexism as against women. And, no doubt, India has a serious problem that has been brought into acute focus by the brutal and dehumanizing crimes committed against Jyoti Singh Pandey in Delhi and against women daily across the wide expanse of India. The fact that women, men and especially young people took to the streets and on social media in massive numbers all across India to vent their fury against society and their rulers was inspiring – unprecedented in modern times and issues – and, perhaps, the awakening of a more democratic and humanist spirit. It felt so much like:

“If I do not speak, then who will…if our leaders and police do not ask or view her
as someone’s daughter, sister, wife, mother, friend…and, above all, a human being; then who will?
I must speak…I will stand up, I will fight.”

And, that causes me to believe in the spirit and action of the people of India. India just might be on the move in more ways than one…from the night of darkness towards the light.

This is my first Blog posting. I hope to embrace and write about things that matter: human rights, culture, law and politics, the free play of the mind, the dearness of one’s friends, our shared humanity, and look into the true Heart of Justice.

I hope you will enjoy reading and sharing your responses.

Bill

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