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Signing on to silence: Confidentiality agreements in sexual assault cases

Thu, 2018-01-25 22:07

The case of Larry Nassar, who for years was a doctor for Michigan State University and the U.S. Women’s Gymnastics Olympic team, and who has pleaded guilty to seven counts of criminal sexual conduct, is truly disturbing. In the sentencing phase of the trial, 156 victims made statements to the court about the impact of his acts on their lives.

This case also drew attention to situations where an attempt is made to silence victims through a non disclosure or confidentiality agreement. One of Nassar's victims, McKayla Maroney, reached a settlement with USA Gymnastics (USAG) in December, 2016, which included such an agreement, prohibiting her from speaking about any abuse she suffered at the hands of Nassar. The confidentiality agreement also contained a provision that if Maroney violated the agreement, USAG could "fine" her US$100,000. This raised the question of whether she would, or could, make a victim impact statement at Nassar's sentencing hearing. Ultimately, USAG confirmed that it would not seek to enforce those provisions if Maroney made a victim impact statement.

As a result of USAG's decision, in this case the confidentiality agreement will not have prevented Maroney from speaking out. But what about other victims who have signed confidentiality agreements in the course of settling sexual assault claims, in cases when the other party to the settlement agreement will not agree to waive the confidentiality agreement? Are those persons free to speak without any repercussions? Unfortunately, in Canada, the answer is not clear.

Contracts that are 'contrary to public policy'

The starting point is that, generally speaking, our legal system protects the freedom of competent persons to enter contracts (including confidentiality agreements). To that end, courts will try to give effect to an agreement between parties to a contract. However, as with most legal issues, this is not always clear cut and courts employ many legal doctrines when warranted to find that contracts are not enforceable.

One basis for courts to find that provisions in contracts are void and unenforceable is that a provision in a contract is "contrary to public policy." This doctrine has been applied to render contractual provisions unenforceable in numerous situations, such as some non competition agreements, contracts to commit illegal acts, and contracts that provide that certain statutes do not apply to the parties and their agreements.

What about a contract in which a person agrees not to go to the authorities about a crime? An agreement whose purpose is to stifle a criminal prosecution is contrary to public policy and unenforceable as a result. However, an agreement whose purpose is to settle a civil lawsuit might be enforceable even if the civil lawsuit involves matters that might also support a criminal prosecution. The determining factor seems to be what the primary purpose of the agreement was.

Competing public policy concerns

Having said that, agreements that interfere with the administration of justice will generally be held to be void as contrary to public policy. On the other hand, courts have typically held that there is a strong public interest in promoting settlements. So where does that leave a settlement agreement with a confidentiality clause, meant to settle a private (that is, not criminal) dispute between two parties, regarding behaviour that would also support a criminal prosecution if reported to the authorities? Does the court treat the prohibition against reporting a potential crime to the authorities as an interference with the administration of justice and void as a result, or does it prefer the policy of encouraging settlement of private disputes?

I have not found a case that has considered this question in the context of allegations of sexual assault; in fact, there appears to be little case law regarding the enforceability of confidentiality provisions in agreements to settle civil disputes where the underlying facts could also support a criminal prosecution. One case that appeared to provide some guidance (although it involved the enforceability of an indemnity provision, not a confidentiality provision) considered a separation agreement in which a wife agreed to indemnify her husband for 50 per cent of any payment he might be required to make in the future in respect of retail sales tax liability that he had failed to declare.

At trial, the court found that the real purpose of the indemnity was to discourage the wife from reporting the matters in issue to the authorities, and wrote that "it would be in my opinion, contrary to public policy for the courts to lend assistance to the nondisclosure of statutory offences." However, the case was appealed and while the appeal court ultimately decided that the separation agreement was void as against public policy, it also noted that courts needed to use caution in finding contracts to be void as contrary to public policy so that the doctrine does not "unduly impinge on the basic right to enforce engagements freely and voluntarily made."

The appeal court determined that it could interfere with this separation contract because it was "well settled" that a contractual provision whose purpose was to perpetrate a fraud on a taxing authority was contrary to public policy. The appeal decision leaves open the question of whether the settlement of a private dispute concerning a matter that could also support a criminal prosecution, but which does not involve a fraud on a taxing authority, will be enforceable where it includes a confidentiality provision.

Challenging confidentiality agreements

With the MeToo movement, we are in a new era, in which many victims are more willing to report sexual harassment and sexual assault. We are also hearing about many instances where the perpetrators of harassment or assault have tried to silence their victims through confidentiality agreements. McKayla Maroney challenged the confidentiality agreement she signed; time will tell whether others will follow suit, and how successful such challenges will be.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

Photo: Paola Kizette Cimenti/flickr

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pro bonoconfidentialitysexual assaultpublic policyCanadian legal systemcontractsMichael HacklPro BonoJanuary 25, 2018The law is settled on sexual assault. When will the legal system catch up?The treatment of sexual assault complainants in the justice system has received a great deal of mainstream media attention. Why has the system failed victims?Sexual assault law in Canada: What women need to knowIt was 1982 before marital rape was acknowledged as sexual assault. A short overview of the Canadian law governing sexual assault, with an emphasis on the hazards women face.Privacy compromised: Legal rights and protections in CanadaWhat should the institutions that are privy to our private information do when they have to deal with competing privacy and secrecy concerns? Michael Hackl looks at Canada's privacy laws to find out.
Categories: News for progressives

Looking forward by looking back -- 1978

Thu, 2018-01-25 16:19
January 25, 2018Politics in CanadaLooking forward by looking back -- 1978Pierre Trudeau had been in power for 10 years. Nigeria moved toward a (brief) return to democracy. And René Lévesque prepared the ground for 1980’s referendum on Quebec independence. Quebec separatismPierre TrudeauRené Lévesque
Categories: News for progressives

Rachel Notley and Jason Kenney sing from same hymnbook, sort of, on plan to prop up Keystone XL

Thu, 2018-01-25 00:08
David J. Climenhaga

It's unusual to see Alberta Premier Rachel Notley and Opposition Leader Jason Kenney in agreement about an important policy direction -- and a little weird too, given both of their past histories on some of the key issues involved.

I speak, of course, of last Thursday's announcement by Premier Notley that her NDP government would help prop up the Keystone XL Pipeline by signing an agreement with TransCanada Corp. to ship 50,000 barrels of oil every day for 20 years down the still only partly complete line to the Texas Gulf.

As Kenney pointed out with partial accuracy in a snotty tweet the same day, this is a change from the less than enthusiastic positions taken in the past by the NDP on the megaproject when it was being delayed by former U.S. President Barack Obama and before it was revived last year by his successor Donald Trump.

But is it just me, or was Kenney also adopting a policy traditionally associated with parties like the NDP when he tweeted, "Glad to see that the Alberta Govt has finally come around to recognizing the importance of Keystone XL, after years opposing the project"?

After all, isn't the position we've come to expect from market fundamentalist conservative ideologues like Kenney that governments ought never to interfere with the functioning of free markets with the intention of "picking winners and losers," lest they pick a loser?

So do Kenney and his United Conservative Party now agree with the traditional NDP point of view of the proper role of governments in the market, or is he just doing favours for his friends in the oil industry regardless of what he claims to think?

And has Notley accepted the traditional Alberta conservative position on helping out the oil industry no matter what it wants, or is she merely demonstrating a penchant for picking losers by propping up a megaproject that wouldn't get off the ground without some level of government encouragement?

Perhaps this incongruous mutual positioning explains why neither party has apparently seen fit to publish a formal document explaining their reasoning.  

Well, at least Notley told reporters that the move -- which she denied was a bailout, although the Keystone XL Pipeline was thought in some quarters to be on life-support -- is intended to help TransCanada get the project off the ground by reviving commercial interest in it.

The premier also argued the pipeline will help Alberta get a better return on oil from the Athabacsa Bitumen Sands. As noted in this space in the recent past, that is not a universally accepted point of view, even if it is shared by both government and opposition leaders.

According to a report published eight months ago by the Edmonton-based Parkland Institute, many assumptions on which longstanding pro-pipeline arguments are based are questionable or no longer valid. Building additional pipelines "will not mean a higher price for oil," argued earth scientist David Hughes in the report.

Still, it is true that with the Alberta government's credit rating, there's a case to be made it would be foolish not to sign a long-term shipping agreement somewhere, and the only one available after the collapse of the Enbridge Energy East Pipeline was on Keystone XL.

Be that as it may, pipeline opponents continue to make the case Keystone XL is not viable.

"Any project that needs a government bailout amid a quagmire of ongoing legal and regulatory challenges has little chance of moving forward," senior analyst Adam Scott of the clean energy advocacy group Oil Change International said the same day Notley made the commitment.

"While TransCanada is out with bold statements that make it sound like the pipeline is now on the verge of construction, reality paints a much harsher picture for the project's prospects," agreed Josh Axelrod, an analyst for the Natural Resources Defense Council in a critique of TransCanada's business prospects quoted by The Energy Mix.

President Trump may have brought Keystone XL back from the brink, Axelrod observed, but the regulatory obstacles in its way continue to grow. He asserted that last week's announcements by the company (it has secured commitments to move 500,000 barrels a day) and Alberta (it will contribute 50,000 barrels from its Bitumen Royalties-In-Kind program through the Alberta Petroleum Marketing Commission to the flow) highlight "how hard it will be for the company to ever move forward."

Indeed, as the Canadian Press reported, while TransCanada said the commitments it has received are enough to start getting ready to build the final phase of the line, the company "was not yet ready to made a final investment decision."

Alberta's previous Progressive Conservative government made a similar commitment to ship 100,000 barrels a day through Energy East to a Canadian refinery New Brunswick, a project that has since fallen by the wayside. But former PC energy minister Ken Hughes in November told the Financial Post he didn't think extending the same support to TransCanada's Keystone XL line made sense because it won't replace foreign crude in Eastern Canadian refineries.  

Even if TransCanada can overcome regulatory hurdles in the United States, it seems like the almighty market, so beloved by conservatives like Kenney, may turn out to be the biggest challenge to the viability of Keystone XL and other pipeline projects, with or without a visible hand from the Alberta government.

Interesting, though, that Kenney and Notley are singing from the same hymn sheet on this one, whether or not they're singing in perfect harmony.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

Photo: Premier of Alberta/flickr and michael_swan/flickr

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Categories: News for progressives

What's your foodprint? A guide to sustainable eating

Wed, 2018-01-24 21:52
EnvironmentFood & Health

I learned a lot of lessons growing up in southern Saskatchewan -- and most were related to using resources respectfully, eating healthy, and producing and buying food responsibly. I didn't realize it at the time (and the debates about climate change and carbon emissions were a few decades off for sure when I was a kid) but I was learning to live sustainably, before the word became trendy.

I can still remember the long rows of potatoes we dreaded planting each spring, weeding throughout the hot Prairie summer, and harvesting in the sometimes really cold days of early fall. And I still remember my dad dropping off a few extra bags to appreciative families who didn't have a garden and were a bit down on their luck.

While my mother never canned fruits or vegetables, I remember some of my aunts canning as much fresh produce as they possibly could, given the room they had on the shelf.

What we eat definitely has climate impact but there is often more than meets the eye when you start calculating how to eat sustainably.

Eating foods when they are in season where you live

These days a lot of research has gone into trying to determine the food miles used in transporting produce around the world. More than a decade ago, the 100-mile diet became popular. There is no doubt that moving food across the globe on planes or trucks creates CO2 emissions. Bringing in pineapples from Costa Rica or pomegranates from California or Spain can't be good for the planet.

Should we buy them at all -- no matter the season -- since they are not grown locally? Probably not if we consider the CO2 emissions created to transport them, no matter the time of year. But transportation fumes are not the only factor.

Take the common tomato, eaten almost daily in Canada, throughout the year.

The tomato is a good example of how it is not always easy to calculate food miles. For example, we have grown accustomed to having fresh tomatoes all year round, even if they cannot be produced locally. Meanwhile, some tomatoes are produced locally, in greenhouses. But tomatoes are also often shipped in from the south. If you have a choice of buying a locally grown greenhouse tomato in winter or of buying one shipped in from Mexico or the southern U.S., which is the most sustainable?

In reality, it may be more sustainable to ship a tomato in from the south than produce locally grown tomatoes by heating greenhouses in the middle of a Canadian winter. But how do you know? Maybe the local Canadian greenhouse is fuelled by waste heat, renewable energy and an efficient hydroponic system! A dilemma? Perhaps -- but then harken back to what my mom did -- she encouraged us to know when foods were in season and to select those, usually because of price. But it also makes sense in terms of taste and carbon emissions. She also encouraged us to grow our own -- and to prepare foods for the winter.

I ate a lot of stewed tomatoes in the winter when I was a kid. And my mom loved the simplicity of freezer jams and flash freezing vegetables and sometimes fruit. These days, there is also the option of using dehydrators to prep fruits, vegetables and even meats, if you like.

Assuming that all imported produce has a larger carbon footprint than foods produced locally is not always right either. Again, it really depends on how the food is produced, what inputs or amendments have been used, and how much energy is used in the production as well as the processing. For example, in certain parts of the world, farmers use far less chemical or mechanical inputs than northern farmers do. In some cases that might actually mean that the carbon footprint is lower for products that are flown in, compared to those grown locally. And you may be helping a farmer halfway around the world to a living, depending on how the food is traded. Another dilemma? Definitely.

Calculating your foodprint

You can try counting food miles or try estimating fly-in miles, but there may be an easier way to calculate your footprint and impact.

Here the questions I ask myself as I try to eat sustainably:

1. Is it locally produced?

2. Is it organic?

3. If not local, then is it a fair trade product?

4. Am I helping a family farmer when I purchase this product?

5. Is it in season where I live?

6. What can I do to contribute to making my food menu more sustainable? Drying, canning, freezing locally grown foods? Participating in a community garden? Growing some foods in my own backyard?

Chances are, if we are eating responsibly and selecting foods that are in season, locally produced (maybe even out of our own garden) and organic, our efforts can go a long way toward reducing our food carbon footprint -- our foodprint. Eating this way will also help to ensure that the food we do consume is more nutritious, tastes better, and actually lasts longer since three-fourths of its shelf life after harvest has not been spent in transport by plane, ship or truck.

If you're concerned about costs, pull out those easy-to-use preserving recipes when fruits and vegetables are in season, check what can be flash frozen easily, and maybe even grow your own.

And if you have extra in your food basket, share with neighbours or the food bank.

Eating is a complicated business. So is trying to support family farmers. And so is trying to mitigate climate changes. And diet debates can be endless: vegetarian, vegan, sustainably sourced, pasture-fed, etc. But the truly important point is that we are asking ourselves some hard questions -- constantly! If we keep questioning, we are bound to get the right answers at least some of the time.

Lois Ross is a communications specialist, writer, and editor, living in Ottawa. Her column "At the farm gate" discusses issues that are key to food production here in Canada as well as internationally.

Photo: GoToVan/flickr

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local sustainable foodlocal foodfood consumptionfood productionAt the farm gatecarbon footprintLois RossJanuary 24, 2018A year of progressive, purposeful eating in 2018The New Year is just a few weeks away -- a good time for reflection. My resolution this year is going to be all about how I can work towards sustainable eating practices.Ideas that work to promote sustainable small farmsThere are many layers to farming, but there are plenty of farmers who know what is required. And they have been trying to get the message across for a long time. Will the federal government get it?We only have one Earth, and we're overshooting its capacityIn North America, reducing the carbon footprint by using less energy -- especially fossil fuels -- is major, but so is changing food habits.
Categories: News for progressives

Transportation dangers in moving oil by rail remain, almost five years after Lac-Mégantic

Wed, 2018-01-24 15:09
January 24, 2018Politics in CanadaAs the Lac-Mégantic criminal trial ends, government action must beginThe Quebec town’s citizens were not protected from unsafe transportation practices which remain in place today. They deserve justice.Lac Mégantictransportation safetyBakken oilban oil by rail
Categories: News for progressives

After 10 years, Hassan Diab is finally free

Wed, 2018-01-24 14:45
Judy Haiven

Few Jews today should have missed the lessons of the Dreyfus Affair a century ago. Alfred Dreyfus, a French Jew, was a captain in the French military. In 1895 he was convicted of being a spy, although he vigorously denied it. Systemic anti-Semitism and his being the only Jewish officer of his rank both played a huge role in his conviction. Despite evidence at a second trial in 1899 that another officer was in fact the spy, Dreyfus was again convicted. Jailed for years on the remote Devil's Island, he became a broken man both physically and emotionally. Leading French intellectuals, artists and writers, including Emile Zola, rallied to Dreyfus's cause and protested his convictions. In 1906 he was finally freed and exonerated.

There are similarities between the Dreyfus Affair and the case of Hassan Diab. Canadian Hassan Diab is finally free -- thanks in part to many individuals and advocacy groups that worked for years to demonstrate the flaws and inconsistencies in the evidence against him, and demanded a halt to his extradition to France. Diab's six years of house arrest and three years in a French prison were outrageous injustices meted out to a man who had committed no crime.  

Lebanese-born Canadian Hassan Diab was a marked man ever since he was named as France's only suspect in the 1980 bombing of a Paris synagogue that killed four people and injured 40. Since 1999, French police had set their sights on Hassan Diab, believing him to be a terrorist involved with a Palestinian group, Popular Front for the Liberation of Palestine (PFLP). But the French police could not clearly prove this. They said Diab's handwriting was the same as that of the bomber's and that an identikit photo proved it was Diab.  But handwriting experts confirmed that Diab's handwriting did not match the five handwritten words on a hotel registration card thought to belong to the bomber. Though a woman in Paris identified the attacker as between 40 and 45 years of age, Diab was only 26 at the time, a student writing exams in his university in Beirut. His presence at the university was corroborated by affidavits from other students and by  documents sent by the university. The fingerprints and palm print on evidence found by the French police were not the same as Diab's.

Nonetheless, in November 2008 France demanded Diab's extradition to stand trial for the murders. Diab was arrested by the RCMP in Ottawa where he lived. He taught sociology at both Carleton University and the University of Ottawa. The Canadian court imposed very strict bail conditions. For example, Diab's wife, Rania Tfaily, also a sociology professor at Carleton, had to accompany him twice a week to campus when he taught his class; he had to wear an electronic ankle bracelet (which cost him $2,000 a month); he had a curfew and had to live under house arrest when not at work. He was forbidden to own a cellphone.

In June 2011, Justice Robert Maranger ordered that Diab be extradited to France. Maranger did have misgivings; in his words the case against Diab was "convoluted," "very confusing," "with conclusions that [were] suspect" Appeals of the extradition decision were denied, and Diab was extradited to France in November 2014.

For the last three years, Diab has been in solitary confinement awaiting trial in a maximum-security prison on the outskirts of Paris. Though some French magistrates were convinced Diab was the wrong suspect, the prosecutors seemed desperate to pin the crime on him.  

The role of B'nai Brith Canada

In 2009, at a hearing in connection with the extradition, Diab's lawyer explained that Diab intended to return to teaching at Carleton University. According to media reports, the next day an Ottawa-based member of B'nai Brith Canada called Carleton University to complain that Diab was still teaching there.

Later that day, Carleton fired Diab, who was three weeks into teaching an introductory sociology course at the university. Even before Carleton University came out with its statement, B'nai Brith Canada commended the university for having done the "right thing" in not allowing Diab to teach. In its statement, B'nai Brith Canada said it was "deeply disturbed" by the news that the alleged bomber would be permitted to teach.

Frank Dimant, B'nai Brith Canada's Executive Vice-President, said that "the conditions of Diab's bail do not even allow him to leave his home alone or to own a cellphone, but Carleton officials believe that it is fine for them to make him a member of their faculty? The last place in the world where this man belongs is in a university classroom, in front of impressionable students." Dimant went on: "We find it deplorable that university officials believe that there is nothing wrong with employing Diab. The safety and security of the community as a whole, and of the Carleton University campus in particular, are of great concern to us…."

Dimant seemed especially concerned about Diab's effect on Jewish students. In an op-ed in the National Post Dimant wrote, "Were he [Diab] permitted to teach, he would be in regular, ongoing, daily contact with students, some of whom are Jewish and already feel the stigma of being marginalized on campus."

Dimant's key worry seemed to be that Diab would make anti-Jewish slurs against Jewish students -- this despite the fact that Diab had never been accused of uttering a single anti-Semitic sentence.

B'nai Brith Canada describes itself as a human rights organization which has "championed the cause of human rights in Canada since 1875." Its YouTube site displays the motto: "Grassroots human rights advocacy and a lifeline for our community." B'nai Brith's League for Human Rights "advocates for the human rights of all Canadians… and advocates for global human rights…" If B'nai Brith and its League for Human Rights advocates for human rights, what about the rights of Hassan Diab? Isn't a basic tenet of all human rights the right to be presumed innocent until proven guilty? Clearly B'nai Brith is selective about its human rights advocacy.  

B'nai Brith might be quick to point out that it merely wanted the process to go ahead. In other words: let Diab be extradited to Paris for trial -- but all along the way there were signs of a weak and problematic case against him.  

B'nai Brith seems to have missed the lessons of the Dreyfus Affair a century ago. Just as it was convenient for the French to scapegoat Dreyfus, it was convenient for B'nai Brith to scapegoat Diab. It was in B'nai Brith's rush to judgement that it zeroed in on Diab, an Arab, to place blame for the synagogue attack. Not only did B'nai Brith ignore the unconvincing nature of the legal case against Diab, but hardly protested when he was put under house arrest and incarcerated without trial for years. And even after Diab was freed of all charges in France and returned home to Ottawa, B'nai Brith said nothing publicly. B'nai Brith owes Dr. Diab and the Canadian public an apology. 

Two other Canadian Jewish organizations also joined in to condemn Diab, without any convincing evidence. The website of Simon Wiesenthal Center (SWC) says it is "committed to countering racism and anti-Semitism and to promoting the principles of tolerance, social justice and Canadian democratic values through advocacy and education."  

But SWC's external relations director, Dr. Shimon Samuels, demanded that Diab be sent to France for trial immediately -- no questions, no concerns. Rabbi Abraham Cooper, SWC's associate dean, called Diab "an accused terrorist mass murderer." CEO Avi Benlolo said, "One can only wonder how a reputable university like Carleton can place an alleged murderer at the head of a classroom -- teaching and meeting with students. The university should take a cautionary approach until all charges against Diab are cleared."

The Centre for Israel and Jewish Affairs (CIJA) applauded the decision to uphold the extradition order against Diab: "The fact that the main suspect in this hateful terrorist attack will indeed face the justice system gives hope to the survivors…" CIJA too claims to combat "[a]nti-Semitism and discrimination in all its forms and advocates for fundamental rights and freedoms, [and] social justice…"

At no time did B'nai Brith seek to make common cause with well-respected social justice and advocacy groups such as Amnesty International, the Canadian Association of University Teachers (CAUT), the Canadian Civil Liberties Association, the BC Civil Liberties Association, the International Civil Liberties Monitoring Group, and the Canadian Labour Congress -- to name a handful. They all demanded justice for Diab.

Two Jewish organizations supported Diab -- the United Jewish People's Order and Independent Jewish Voices Canada.  IJV Canada has supported Diab from the start and demanded he be freed.  IJV Canada joined with other Canadian advocacy groups to expose discredited evidence and the Canadian government's complicity in allowing Diab's extradition. The way the Canadian government handled the Diab case is eerily reminiscent of its bungling of cases involving other Arab-Canadians including Maher Arar, Omar Khadr, Muayyed Nureddin, Abdullah Almalki and Ahmad Elmaati. All were tortured in foreign countries as a result of faulty Canadian intelligence and the refusal by our governments of the day to intervene. All have since been issued apologies and compensation. Will Hassan Diab be next?

Judy Haiven is a founding member of Independent Jewish Voices Canada. She is a recently retired Professor of Management at Saint Mary's University, in Halifax, N.S.

Photo courtesy of Hassan Diab Support Committee

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Categories: News for progressives

Brad Wall hoist with own petard as Saskatchewan climbs down from embarrassing licence plate war

Tue, 2018-01-23 14:13
David J. Climenhaga

Devotees of slapstick political humour will be disappointed to learn Saskatchewan's Monty Pythonesque Licence Plate War on Alberta ended yesterday with an embarrassing climb-down by the province's Saskatchewan Party government.

Amity again reigns on the peaceful Canadian Prairies. You can leave your Alberta plates on your pickup truck when you work on that Government of Saskatchewan highway improvement site before you head back to your Lloydminister bungalow on the Alberta side at 5 o'clock.

The last act in office of Saskatchewan Premier Brad Wall -- beneficiary of a long and determined campaign of nauseating hagiography characterizing him as the brilliant and beloved Mr. Congeniality of Confederation -- was to be hoist with his own petard.

As a result, when he shuffles off into political history on Saturday, Wall will be remembered by most Canadians as the petty and petulant right-wing premier whose last official act was to let a personal temper tantrum at Alberta's NDP nearly escalate into an interprovincial trade war that had the potential to cost his economically beleaguered province's taxpayers a $5-million fine under the terms of the New West Partnership Trade Agreement.

Indeed, Saskatchewan dropped its claim it was retaliating against Alberta for doing the same sort of thing at the last possible moment -- less than 12 hours before the provinces would have been locked into the intramural trade agreement's dispute arbitration process.

The general consensus hereabouts was that since there was no evidence whatsoever to support Saskatchewan's claims, a ruling in Alberta's favour was a slam-dunk. As Alberta Trade Minister Deron Bilous told news reporters yesterday, Saskatchewan's abject 11th hour surrender came because "they knew they were going to lose."

Saskatchewan Trade Minister Steven Bonk told media that the people with the evidence declined to share it because they were afraid they would face repercussions in Alberta -- typical of a case that was always long on claims and short on verifiable facts.

As did Bonk, Premier Wall claimed there was a certain reciprocity in his province "blinking first," as media reports insisted on putting it, not entirely accurately since it's hard to see how Alberta could blink, there being no evidence forthcoming on either side of the border for Saskatchewan's assertions.

"The recent confirmation of AB's willingness to concede and reverse discriminatory beer pricing policies when confirmed on appeal is what we were hoping to see," Wall tweeted. "License plate policy is therefore suspended."

That's a bit of a reach. It misrepresents what Bilous said -- to wit, only that Alberta would abide by an appeal panel's decision in the unrelated dispute if it upholds an earlier panel ruling that Alberta's program of beer markups and rebates designed to help local craft breweries break the trade agreement's rules. But you have to let the guy try to save his pride by saying he took something home for his not-very-effective efforts.

Mainstream media tried from the get-go to portray this dispute as a he-said/she-said spat between Wall and Alberta Premier Rachel Notley. As the National Post put it, the two premiers "have been bickering since Notley was elected in 2015, and seem to loathe each other."

In truth, it's been more of a he said/he said affair, with Wall doing most of the bickering and Notley making the occasional joke at his expense, which no doubt infuriated him even more. The loathing was strictly one way.

As the Edmonton Journal's Graham Thomson observed: "This whole fiasco seems to have been generated by Wall's intense, if not irrational, dislike of an NDP government next door."

We get it, though. Notwithstanding Wall's conservative ideology and his party's instinct to impose austerity on his province's citizens now that oil prices have gone south and look to stay there, Alberta's economy is doing better under the kinder, gentler NDP.

Even Saskatchewan's six-per-cent sales tax doesn't seem to help that province's bottom line enough to keep it out of deficit -- whereas, if Alberta were to adopt the same sensible measure, it could almost eliminate its controversial annual deficits with a vote of the legislature.

If it's any comfort to Wall, this makes conservatives on this side of the interprovincial boundary just as angry as the Saskatchewan premier, whom Alberta Opposition Leader Jason Kenney used to refer to as "the real leader of Western Canada." We don't hear that from Kenney any more, although it's not clear if that's because Wall has gone down in his estimation or because he aspires to the title himself.

Regardless, there is also a certain irony in the Alberta NDP's use of a trade agreement like the New West Partnership to put an end to Wall's extended tantrum, because such so-called "free-trade" deals have not, historically, been supported by New Democrats, and for good reason.

The bitter truth is free trade deals and free trade rhetoric are normally about corporate rights but not citizen rights, and typically have the effect of trading away democracy and the environment to help make the largest corporate players more profitable.

As the Canadian Centre for Policy Alternatives pointed out last year, Canada's international free trade deals are probably incompatible with both Indigenous reconciliation and effective climate action.

Internal trade deals like the New West Partnership are not all that much different in that they are designed to privilege corporate rights over citizen rights, including the right for local governments to develop environmentally sound policies or provinces to encourage the development of a craft beer industry if it cuts into the sales of watery corporate brew from Saskatoon.

Still, the New West Partnership is not without some merit, obviously. At least it has managed to silence Wall -- who has become Canada's answer to Basil Fawlty -- for a few blessed moments.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

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Categories: News for progressives

Time to do something about Toronto's homeless-shelters mess

Mon, 2018-01-22 15:58
January 22, 2018Food & HealthToronto's shelter catastrophe was decades in the makingA perfect storm created the conditions for the chronic shortage of shelter beds in Toronto, which can no longer be ignored.
Categories: News for progressives

Cicero was a philosopher on life and aging

Fri, 2018-01-19 16:05
January 19, 2018Arts & CultureA classic way to live, by CiceroOld age need not be dreaded if it is the culmination of a well-spent lifeciceroaging
Categories: News for progressives

1988 and NAFTA remembered

Thu, 2018-01-18 15:49
January 18, 2018Politics in CanadaUS PoliticsWorldLooking forward by looking back, 1988 — Part 2Brian Mulroney is remembered for his unctuous manner and the whiff of corruption that surrounded him. In fact, his was a consequential government. Part 2 of 2. Ronald ReaganNAFTA
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Distinctive way forward on Quebec and the constitution

Wed, 2018-01-17 15:20
January 17, 2018Politics in CanadaLooking forward by looking back, 1988 — Part 1Brian Mulroney is remembered for his unctuous manner and the whiff of corruption that surrounded him. In fact, his was a consequential government. Part 1 of 2. Meech Lake AccordPierre Trudeau
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U.S. and NATO take your hands off Iran

Tue, 2018-01-16 22:54
January 16, 2018WorldSupport lifting sanctions on IranA statement to the progressive community in Canada that we weren’t able to read out at a Vancouver rally after being attackedDEMOCRACY IN IRANIran human rights
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Honouring the legacy of Martin Luther King Jr. by fighting poverty and racism

Mon, 2018-01-15 21:15
January 15, 2018Anti-RacismCoalition honours Martin Luther King Jr., renewing Poor People's CampaignA coalition has formed to organize poor people in the United States into what Dr. Martin Luther King Jr. called 'a new and unsettling force' to fight poverty.martin luther king daymartin luther kingAnti-povertyAmerican povertycivil rights
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Fighting for Space chronicles a hard-fought battle in the War on Drugs

Mon, 2018-01-15 16:38
Tyson Kelsall

Both Fighting for Space and Hundred Block Rock -- two books centered in Vancouver’s Downtown Eastside (DTES) -- begin in an unexpected place: Toledo, Ohio. On which, the latter’s author, Bud Osborn wrote, “where long ago happy kodak family/has long since been destroyed.”

Toledo is Osborn’s “unholy” hometown -- and another North American city feeling the brunt of the overdose crisis.

It has been 18 years since Osborn, famed poet of the DTES and activist behind many of Vancouver’s drug policies, released his book of poems. Vancouver has since legislated the Four Pillars drug strategy, and Insite has become a permanent fixture on Hastings Street.

In his new book, Fighting for Space: How a Group of Drug Users Transformed One City's Struggle with Addiction, Vancouver journalist Travis Lupick chronicles these changes.

Sometimes a telling of history acts as a call to action. Amidst the chaotic bureaucracy battles, run-ins with the state, and the busy streets of the DTES, Lupick manages to do exactly that.

And in the context of the overdose crisis, there could not be a better time.

Osborn is one of the many characters Fighting for Space tells its history through. Although Osborn passed away before the book was written, his fingerprints and influence are felt throughout. Lupick dives into the lives and humanity of many of the people who were behind Insite, North America’s first supervised injection site.

Some of the book’s greatest depth is not around protest and action, as the title would suggest, but in people’s life stories. In doing so, it examines complex questions: What influences people to wade into harm reduction? What type of person is drawn to these services that, for so long, were rejected and scorned by the state and its actors? Lupick shows, through diverse biography, what draws us -- workers and users -- together to these spaces. In this way, Fighting for Space is an important book not only for policymakers and historians; it also offers people on the frontlines of the housing and overdose crisis a sense of solidarity in a context beyond our own lives.

The story ranges from smaller acts, such as the first meeting of Portland Hotel Society founders Liz Evans and Mark Townsend, or Anne Livingston establishing the first illegal injection sites. It then moves into larger concepts, such as the B.C. Supreme Court case that recognized addiction as an illness. It even attaches this fight to the broader War on Drugs, told through a story of threats on sovereignty toward Liz Evans and her team from the U.S. consulate. 

Lupick lends a journalist’s hand to issues that have mostly been restricted to academic journals, making the story accessible and engaging.

And while a book this size or larger could have been written about addiction and drug use, this is where the book remains thinnest. At times it seems that the three addiction theorists that were heavily leaned on were picked to uphold a specific view. Right or wrong, they were left relatively unchallenged.

The book also covers the heartbreaking perils of academia itself. Lupick describes a fixed five-year research project that supplied people with prescription heroin. Although the results were considered successful, it was discontinued. He interviewed David Murray, a user of the program, who described this experience: “I was frantic after the program, I was back on the street doing a lot of heroin again. The heroin wasn’t working. I was doing a lot of pills -- anything to keep the edge off.”
Fighting for Space also made obvious that Lupick is not a reporter or researcher who has simply parachuted into the community then left. You do not have to search his archives to know that he has spent considerable time in the DTES and reporting on the crisis, it emanates from the pages.

One of the chapters, A Drug-Users Union, captures the nuance of the origins of the Vancouver Area Network for Drug Users (VANDU) with great detail. VANDU is 20 years old now and continues to organize, and hold meetings and educational sessions for people who use drugs. CBC reported in July that there is now a membership of 3,000. This chapter, like others, outlines important lessons for those who want to imitate what has worked in the DTES.

The book ends with where we are now -- in a crisis that has become highly normalized in the news cycle, and to which the state continues to react glacially to -- where some of the same activists, and new ones, are still fighting for space. 

The truth is, that although we live in a bleak time, by offering a celebratory look at past successes, Lupick offers a glimmer of hope. Not unlike the turn of narrative near the end of Osborn’s poem on Toledo: “circumstances of daily and my life and life itself hopelessly wrong/ this revelation contradicted experience.”

Tyson Kelsall is a former harm reduction worker who worked at an injection site in Victoria, British Columbia. He is currently working on a thesis about harm reduction and health at McGill University.  

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A view from 2018

Fri, 2018-01-12 15:40
January 12, 2018Politics in CanadaMoving forward by looking back, 1998When more help is on the way, time to get engaged!gruck
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Islamophobia continues to fester in wake of Quebec City mosque shooting

Fri, 2018-01-12 05:14
Anti-RacismPolitics in Canada

On January 29, 2018, Canada will commemorate the first anniversary of the horrible and shocking killing of six Muslim men, shot by Alexandre Bissonnette in a Quebec City mosque.

Beyond the unanimous condemnation last year (rightly so) of such a violent and terrorizing act by politicians from all level of governments, I believe that nothing was achieved in fighting Islamophobia and stopping the wave of hate sweeping across Canadian cities.

Even the recent symbolic proposal to declare January 29 an official day of remembrance, initiated by more than 70 Canadian organizations, was met with staunch opposition from political parties in Quebec's National Assembly -- the Parti Québécois and the Coalition Avenir Québec -- and tergiversation and non-committal replies from both Liberal parties in Quebec and Ottawa.

Like classic arguments used in France or by some conservative politicians during the debate around anti-Islamophobia motion M-103 last winter, each time the issue of hate against Muslims is evoked, it is turned into a semantic debate about the exact meaning of the word "Islamophobia" and about the imagined threats that such initiatives would pose to freedom of speech. As if the killing of six hard-working citizens in a place of worship came out of nowhere or the statistics revealed by Quebec City police last December were just another case of "crying wolf" by victimized Muslims interested in muzzling free minds.

Meanwhile, groups propagating hate, reinforcing stereotypes and ignorance, and inciting violence are left unbothered -- or worse, they are growing in intensity and virulence.

During the summer of 2017, a controversy was falsely created about an organized trip at the Parc Safari zoo near Montreal. A group of Muslim families prayed on the lawn, a practice that as a practising Muslim I have been seeing in North America since I first arrived in Canada in 1991. On Facebook, some individuals criticized and attacked the park management, accusing them of allowing Muslims holding prayers in a public space and spreading their religion. With the administration standing by their decision to accommodate visitors as long as they don't violate park policies, this manufactured crisis became another one added to the long list of incidents in which Muslims are portrayed as threats to the public order, and thus fuelling Islamophobic reactions and fear.

More recently, a Montreal mosque found itself in another fabricated controversy when a TVA journalist alleged that there was provision in the construction contract between the mosque and the builders working for them, barring women from the site on Fridays. Quebec politicians were quick to jump on the bandwagon and denounce the "misogynistic behaviour" of Muslims. There were no second thoughts, no calls to be cautious; every politician had a piece of wood to add to the fire. This time it was not the freedom of speech argument that was raised; instead the principle of gender equality came in handy for some.

Even when the news turned out to be plainly wrong, there were few calls for investigation, no serious reprimand and a very shallow apology by the media outlet.

The accumulation and repetition of these "stories" build on a suffocating atmosphere many Muslim communities breathe across Canada.

A recent media report showed that Toronto is another city where Islamophobia has been growing and left unchallenged by politicians. Anti-Muslim rallies have been held regularly in front of mosques, the Quran was torn in a Peel District School Board meeting about religious accommodation and a Toronto Imam has received death threats because he is helping the board with religious and accommodation issues.

Last December, Pamela Geller, a U.S.-based Islamophobic blogger who once described President Obama as a "third-worlder and a coward," and said that "[h]e will do nothing but beat up on our friends to appease his Islamic overlords," was invited to speak by the Jewish Defence league in Toronto, and Ezra Levant joined her at the event.

Once again, freedom of speech was a fine pretext for allowing a blatantly Islamophobic event to take place and hate speech to flourish and become normalized.

I believe there are three categories of people responsible for this troubling situation.

The first are politicians. Many of them have been playing with identity politics for a long time while others have remained sitting on the bench. Not long ago we had a prime minister named Stephen Harper who said that "Islamicism is the biggest threat to Canada." The uncommon word "Islamicism" amalgamates Islam, fundamentalism and terrorism, making the terms interchangeable. Later, he even gave the example of a mosque as a potential place of youth radicalization, immediately making a connection in people's minds between Islam and violence.

Even if Justin Trudeau considered the Quebec City killings a terrorist act, his government took very little initiative to help provinces and cities come up with education campaigns in schools, in hospitals or public transit to fight Islamophobia. He didn't make any changes to hate crime laws to dissuade white supremacist groups, that are on the rise in Canada. Instead in 2015, Justin Trudeau and the Liberals voted for the anti-terrorism legislation introduced by Stephen Harper, formerly known as Bill C-51. Once again, they used laws to create two specific kinds of crimes: ones committed by Muslims and ones committed by other people whose faith doesn't matter.

Here, it is ironic to remember that Alexandre Bissonnette won't face anti-terrorism charges.

Even the recently passed amendments to the anti-terrorism law keep the heavy feeling that Canada is constantly under threat by terrorists, a.k.a. Muslims, allowing for secret trials to take place, a practice so far only applied to Muslim suspects.

The second group is media. Some media outlets have also been dangerously playing the card of fear against Muslims. They choose which incidents to report and over-represent, like the issue of the niqab during the 2015 federal election. That was not the only time. In 2008, during the reasonable accommodation crisis, many media outlets in Quebec inflated and distorted the cases of religious accommodation demands, making them seem overwhelming. In Ontario, during the "Sharia debate" crisis, some media invited only extremist views from each side, helping to polarize the debate, and leaving the population with more fear than real answers.

And finally, the third group is the general public. When violent events committed by Muslims occur around the world, the onus is placed on Muslims to distance themselves from violence, from their faith, and from the violent ideologies espoused by some Muslim groups. I lived through that and I keep going through it each time a terrorist act is committed in Western countries (mind you that when terrorist attacks happen in other places in the world, they go almost unnoticed).

I wouldn't expect people to condemn every single Islamophobic act committed as this is not possible and it isn't fair to make people guilty by simple association. However, I think that there is a huge duty for self-education about Islam and Muslims, and to make an effort to get out of our comfort zone and make new friends who are Muslims. They can be good or they can be bad, as anyone else. But the effort is worth it. Critical analysis of the news and of politicians' words and actions should not only matter when it comes to work, health and the economy but also when it comes to national security too. Fear shouldn't blind us and give a blank cheque to politicians. It should rally us to fight darkness and hate.

Monia Mazigh was born and raised in Tunisia and immigrated to Canada in 1991. Mazigh was catapulted onto the public stage in 2002 when her husband, Maher Arar, was deported to Syria where he was tortured and held without charge for over a year. She campaigned tirelessly for his release. Mazigh holds a PhD in finance from McGill University. In 2008, she published a memoir, Hope and Despair, about her pursuit of justice, and recently, a novel about Muslim women, Mirrors and Mirages. You can follow her on Twitter @MoniaMazigh or on her blog www.moniamazigh.com

Photo: J_P_D/flickr

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islamophobiastophatecahate groupsMuslim communityQuebec City shootingMonia MazighJanuary 12, 2018On independence and the niqabQuebec's shameful embrace of a niqab ban grew out of the identity politics that followed the failed 1995 referendum to separate from Canada.The 'alt-right' and Islamophobia continue to be normalizedWe need to continue to confront and fight back.Quebec politicians and police fail to condemn far-right demonstratorsDozens of counter-protesters arrested in Quebec City face-off.
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Minimum wage in Canada's North

Thu, 2018-01-11 23:06
January 11, 2018Coffee break with George: Minimum wage, Tim Hortons and cost of living in Canada's NorthGeorge Lessard and Victoria Fenner talk about how residents of northern Canada survive on minimum wage (spoiler: Tim Hortons pays more than minimum wage in Yellowknife).
Categories: News for progressives

Alberta's economy surges

Wed, 2018-01-10 22:41
January 10, 2018Politics in Canada'Blockbuster' job creation in Alberta leaves UCP in search of new talking points about 'job killing' carbon levyYou can probably count on the nattering nabobs of neoliberal negativity at the UCP to come up with a new reason that is clearly the NDP's fault to explain why the sky is falling.Alberta politicsUnited Conservative PartyAlberta NDPMonthly Labour ReportAlberta Economy
Categories: News for progressives

'Blockbuster' job creation in Alberta leaves UCP in search of new talking points about 'job killing' carbon levy

Wed, 2018-01-10 13:30
David J. Climenhaga

Now, about that "job killing carbon tax"

According to the Statistics Canada monthly labour report released on Friday, Alberta's provincial economy is surging, with 26,000 new jobs added last month, a high percentage of them long-term, high-quality, permanent jobs to boot.

That's roughly a third of the entire total of new jobs created in all of Canada in December -- "blockbuster" results nationwide, according to The Globe and Mail, which the paper said economics commentators were calling "spectacular," "impressive," and "unbelievable."

Presumably all this makes the blockbuster results for Alberta alone even more spectacular, impressive and unbelievable.

BMO Capital Markets noted in its monthly labour market report that the fourth-quarter job gains were the largest ever in Alberta history. "That has lifted employment back above pre-oil-shock levels," said those wacky socialists at the Bank of Montreal's investment division.

BMO Capital Markets also noted that the impact of the improving economy hereabouts has seen Calgary surge back into its Top Ten city performance ranking, with the big drop in joblessness helping. "For the record, the city was ranked right at rock bottom at the start of 2017."

For heaven's sake, even the Calgary Chamber of Commerce sounded chirpily upbeat about this, with spokesperson Scott Crockatt telling a local newspaper that 40 per cent of the organization's members expect to hire even more people in the next year.

Obviously, it must be the management of the economy by Premier Rachel Notley's NDP government, hey?

That, of course, is pretty much what the government is saying. On Friday, Finance Minister Joe Ceci told the Calgary Herald that the turnaround shows the NDP was on the right track when the government emphasized economic diversification and refused to cut public services in defiance of the Conservative Opposition's knee-jerk demands for fiscal austerity, which really does kill jobs.

Well, don't expect the United Conservative Party and its semi-professional social media army of meme-makers, bots, trolls, and op-ed fabricators to admit anything like that just yet. But while they're praying to the Almighty God of the Market for a timely 11th hour downturn in the economy, they might want to think about recalibrating their talking points.

On Friday, the social media accounts run by the UCP and its finance-law dodging PACs were screeching about an effort to promote an environmental group in Environment Minister Shannon Phillips' Lethbridge riding -- spinning it as an attack on Alberta cattle farmers.

That was pretty weak, but then, so was the tweet that got it all started, which Phillips swiftly repudiated. Regardless, the vegan whoop-de-doo diverted the attention of the media from the promising economic results for a few hours, so I suppose it must be called a limited success from the UCP perspective.

Yesterday, UCP internet trolls who hate Justin Trudeau's federal Liberal government as much as they hate Notley's Alberta provincial government were desperately trying to give U.S. President Donald Trump the credit for the good economic news in Canada and Alberta.

This will probably prompt more chortles than agreement, but it's nice for Trump, I suppose, to know that there's still at least one place they love him outside Alabama. … Oh. Wait. They don't even like him as much as they used to in Alabama any more, do they? Whatever. Maybe he can open a golf resort in Cardston!

The upbeat employment numbers from Statscan that had the commentariat so enthusiastic were a definite fly in the ointment for Kenney, the UCP, their media echo chamber and the narrative they've all been busily spinning.

Because whatever the NDP's carbon levy is doing, obviously, it's not killing jobs right now. You could almost make the argument it's doing the opposite. You can try to spin the numbers any way Jason Kenney wants you to, of course, but the apocalyptic sense of the NDP-sponsored End Times the UCP leader has been encouraging us to feel as we await 2019's anticipated provincial election will soon evanesce if positive numbers like these keep piling up.

In politics, you've got to be able to turn on a dime, which UCP spokesthingies fresh from Ontario and B.C. can presumably do with ease. But you can't expect the editors of rural newspapers, or even websites, to be so quick -- so we're bound to see a few more versions of the job-killing carbon tax story like the one published by the Eckville Echo Friday just as the UCP's propaganda boffins were trying to create a distraction from Statscan's disappointingly upbeat figures.

Mind you, Kenney isn't one to let the facts stand in the way of a good story -- like his fanciful claims Alberta's population is declining, which it ain't.

Perhaps next year's planned step up to a $15 minimum wage will do the trick. Whatever it is, you can count on the nattering nabobs of neoliberal negativity at the UCP to come up with a new reason that is clearly the NDP's fault to explain why the sky is not only falling, but will continue to fall, or, failing that, at least will fall soon.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca

Photo: Kevin Cappis/Wikimedia Commons

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