Category: Canadian Decisions

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Vaxx Or Mask Rulings (2015, 2016 & 2018); Bonnie Henry Testifies; BC Ombudsman Report

There were 2 rulings in Ontario (2015 and 2018), which concerned the “vaccinate or mask” policy for health care workers. BCPHO Bonnie Henry testified in the 2015 case that there was very limited evidence to support masks. Also, the June 2020 BC Ombudsman report is interesting in terms of government overreach.

Keep in mind that Bonnie Henry also says there’s no science behind limiting groups to 50 people. (See 1:00 in above video). But she imposed that restriction anyway.

1. Sault Area Hospital (2015)

2015.ontario.nurses.association.mask.ruling

322. The assertion that a mask requirement serves a valuable or essential purpose, albeit that there is only “some” evidence, is also weakened by actual employer practice. If the mask evidence were as supportive as claimed, it would suggest that vaccinated HCWs should also wear masks given the limited efficacy of the vaccine even in relatively ‘good’ years. The SAH Chief of Medical Staff raised this question at the outset. The Hospital’s failure to consider re-evaluating the Policy’s application when the extent of the 2014-2015 vaccine mismatch became known raises the same issue. The OHA/SAH expert responses to these questions set out in full above[425] were short of satisfying.

323. Wearing a mask for an entire working shift, virtually everywhere, no matter the patient presenting circumstances, is most unpleasant. While I readily accept that the wearing of a mask for good reason may reasonably be expected of HCWs, an Irving “balancing of interests” is required. The Policy makes a significant ‘ask’ of unvaccinated employees; that is to wear an unpleasant mask for up to six months at a time. As noted, the evidence said to support the reason for the ‘ask’—evidence concerning asymptomatic transmission and mask effectiveness–may be described at best as “some” and more accurately as “scant”. I conclude that many of the articles footnoted in support of the strong opinions set out in the OHA/SAH expert Reports provide very limited or no assistance to those views. The required balancing does not favour the Policy.

Decision
.
342. On the evidence before me, I find the VOM provisions of the SAH Policy to be unreasonable. Accordingly, for all of the foregoing reasons, I declare SAH to be in breach of Article B-1 (e) of the ONA/SAH Local Agreement and Article 18.07 (c) of the ONA Central Agreement.
.
343. Any question concerning the need, if any, for additional relief is remitted to the parties for their consideration. I remain seized of remedial issues.
.
Dated at Toronto, this 8th day of September, 2015

It was found that there wasn’t strong evidence that masking health care workers for months at a time actually had a proven effect. It was further undermined by inconsistent practices at the Sault Area Hospital.

2. Bonnie Henry Testifies In 2015 Case

https://www.canlii.org/en/on/onla/doc/2015/2015canlii62106/2015canlii62106.pdf
2015.ontario.nurses.association.mask.ruling

134. Dr. Henry agreed with this observation by Dr. Skowronski and Dr. Patrick who are her colleagues at the British Columbia Centre for Disease Control:
.
I do agree, as we’ve discussed earlier, influenza is mostly transmitted in the community and we don’t have data on the difference between vaccinated and unvaccinated healthcare workers and individual transmission events…in healthcare settings.
.
135. Dr. Henry agreed that no VOM policy would influence influenza in the community. Dr. McGeer denied that she had used or recommended the use of community burden in the assessment of development of such a policy.

So there is no data on any differences between vaccinated and unvaccinated health care workers. Yet these people are still arguing for VOM (vaccine or mask).

145. In her Report Dr. Henry also referred to observational studies as supporting the data she said was derived from the RCTs but acknowledged that these studies related to long term care and not acute care settings. She was cross-examined at length concerning the studies referenced in this section of her Report, some that dealt with other closed community settings, and agreed that they were “clearly not referring to a healthcare setting”.
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146. Witness commentary concerning the observational/experimental studies relied upon in the McGeer/Henry Reports is set out in Appendix A to this Award. I conclude from a review of these studies, and the expert witness commentary, that they do not disclose a consistent position. They address a wide range of issues in a wide range of settings. Some are not supportive of the OHA/SAH experts’ claim. Some provide weak support at best. Some have nothing to do with the issue in question. Some have acknowledged study design limitations.

Evidence introduced by Bonnie Henry was for long term care centers, not health care settings, so this apples and oranges. There is also weak or irrelevant evidence argued.

160. In direct examination Dr. Henry stated that the pre-symptomatic period was “clearly not the most infectious period but we do know that it happens”.[203] She also agreed in cross-examination that transmission required an element of proximity and a sufficient amount of live replicating virus.
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161. At another point, the following series of questions and answers ensued during Dr. Henry’s cross-examination:
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Q. With respect to transmission while asymptomatic, and I want to deal with your authorities with respect to that, would you agree with me that there is scant evidence to support that virus shedding of influenza actually leads to effective transmission of the disease before somebody becomes symptomatic?
.
A. I think we talked about that yesterday, that there is some evidence that people shed prior to being symptomatic, and there is some evidence of transmission, that leading to transmission, but I absolutely agree that that is not the highest time when shedding and transmission can occur.
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Q. So were you—I put it to you that there’s scant evidence, and that was Dr. De Serres’ evidence, so—but that there’s very little evidence about that, do you agree?
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A. There is—as we talked about yesterday, there is not a lot of evidence around these pieces, I agree.
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Q. And clearly transmission risk is greatest when you’re symptomatic, when you’re able to cough or sneeze?
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A. Transmission risk is greatest, as we’ve said, when you’re symptomatic, especially in the first day or two of symptom onset

Not a lot of evidence regarding risks of transmission. Yes, this is 2015, but it coming straight from BCPHO Bonnie Henry.

177. Dr. McGeer and Dr. Henry presented the position of the OHA and the Hospital based upon their understanding of the relevant literature. Neither of them asserted that they had particular expertise with respect to masks or had conducted studies testing masks.

So, no actual expertise of research. Bonnie Henry just read what was available. And this is the Provincial Health Officer of British Columbia.

184. In her pre-hearing Report Dr. Henry responded to a request that she discuss the evidence that masks protect patients from influenza this way:
.
There is good evidence that surgical masks reduce the concentration of influenza virus expelled into the ambient air (a 3.4 fold overall reduction in a recent study) when they are worn by someone shedding influenza virus. There is also evidence that surgical masks reduce exposure to influenza in experimental conditions.
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Clinical studies have also suggested that masks, in association with hand hygiene, may have some impact on decreasing transmission of influenza infection. These studies are not definitive as they all had limitations. The household studies are limited by the fact that mask wearing did not start until influenza had been diagnosed and the patient/household was enrolled in the study, such that influenza may have been transmitted prior to enrollment. A study in student residences is limited by the fact that participants wore their mask for only approximately 5 hours per day. Two systematic reviews of the cumulative studies conclude that there is evidence to support that wearing of masks or respirators during illness protects others, and a very limited amount of data to support the use of masks or respirators to prevent becoming infected
.
In summary, there is evidence supporting the use of wearing of masks to reduce transmission of influenza from health care workers to patients. It is not conclusive, and not of the quality of evidence that supports influenza vaccination. Based on current evidence, patient safety would be best ensured by requiring healthcare providers to be vaccinated if they provide care during periods of influenza activity. However, if healthcare workers are unvaccinated, wearing masks almost certainly provides some degree of protection to their patients.

Bonnie Henry keeps hedging her answers. Yes, there is protection, but there are issues with the studies, and the evidence isn’t conclusive. She also takes the position that vaccinating everyone in health care settings would be prefereable.

219. Dr. Henry answered the ‘why not mask everyone’ question this way:
.
It is [influenza vaccination] by far, not perfect and it needs to be improved, but it reduces our risk from a hundred percent where we have no protection to somewhat lower. And there’s nothing that I’ve found that shows there’s an incremental benefit of adding a mask to that reduced risk…..there’s no data that shows me that if we do our best to reduce that incremental risk, the risk of influenza, that adding a mask to that will provide any benefit. But if we don’t have any protection then there might be some benefit when we know our risk is greater.
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When we look at individual strains circulating and what’s happening, I think we need it to be consistent with the fact that there was nothing that gave us support that providing a mask to everybody all the time was going to give us any additional benefit over putting in place the other measures that we have for the policy. It’s a tough one. You know, it varies by season.[320]
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It is a challenging issue and we’ve wrestled with it. I’m not a huge fan of the masking piece. I think it was felt to be a reasonable alternative where there was a need to do—to feel that we were doing the best we can to try and reduce risk.
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I tried to be quite clear in my report that the evidence to support masking is not as great and it is certainly not as good a measure

Bonnie Henry admits no strong evidence to support maskings.

3. William Osler Health System (2016)

2016.william.osler.health.system.ruling

2. The primary issue dividing ONA and the hospitals was the controversial ‘vaccination or mask’ policy (“VOM policy”) adopted by many hospitals. The question proceeded to arbitration by test case leading to the decision in Sault Area Hospital, 2015 CanLII 55643 (ON LA). Following an exhaustive review of the available medical scientific literature and having heard from a number of expert witnesses, I determined that:
.
Absent adequate support for the freestanding patient safety purpose alleged, I conclude that the Policy operates to coerce influenza immunization and, thereby, undermines the collective agreement right of employees to refuse vaccination. On all of the evidence, and for the reasons canvassed at length in this Award, I conclude that the VOM Policy is unreasonable. (at para. 13)

12. Insofar as the First Issue is concerned, I do not agree that the recommendation to wear a mask for the duration of the influenza season in any patient area of the Hospital is sustainable. I found at para. 319 of Sault Area Hospital that there was “scant scientific evidence of the use of masks in reducing the transmission of influenza virus to patients”. In the absence of further evidence to the contrary, I conclude that there is no reasonable basis for the recommendation and that it should be deleted from the Policy.

13. Insofar as the Second Issue is concerned, I am satisfied that a blend of the Hospital and Union proposals is preferable to either of them standing alone.

14. The Union accurately summarizes the evidence heard in Sault Area Hospital about the typical length of the influenza incubation period before the onset of symptoms. Nevertheless, I am reluctant to designate a specific number of hours; the length of time will almost certainly vary with individual circumstances. The Hospital’s written submission states that: “We have chosen with our proposed language to have individual assessments made by Infection Control Practitioners at the Hospital.” On the assumption that those assessments will be made available and conducted very close to the 72-hour mark, I find the Hospital’s approach to be acceptable. I also find that the Union’s alternative suggestion to the ‘patient care area’ question to be appropriate.

Just as with the Sault Area Hospital case, this “vaccinate or mask” policy was found to be unreasonable, an unsupported by hard evidence.

4. St. Michael’s Hospital (2018)

2018.ontario.nurses.association.mask.ruling

Introduction
.
Summarily stated, this case concerns the reasonableness of the Vaccinate or Mask Policy (hereafter “VOM policy”) that was introduced at St. Michael’s Hospital (hereafter “St. Michael’s”) in 2014 for the 2014-2015 flu season and which has been in place ever since. Under the VOM policy, Health Care Workers and that group, of course, includes nurses (hereafter “HCWs”), who have not received the annual influenza vaccine, must, during all or most of the flu season, wear a surgical or procedural mask in areas where patients are present and/or patient care is delivered.

St. Michael’s is one of a very small number of Ontario hospitals with a VOM policy: less than 10% of approximately 165 hospitals. The Ontario Nurses’ Association (hereafter “the Association”) immediately grieved the VOM policy in every hospital where it was introduced. It should be noted at the outset that the VOM policy has nothing to do with influenza outbreaks that are governed by an entirely different protocol, and one that is not at issue in this case.

This is not the first Ontario grievance taking issue with the VOM policy. The parties appropriately recognized that the matters in dispute were best decided through a lead case rather than through multiple proceedings at the minority of hospitals where the policy was in place. Accordingly, the Association grievance at the Sault Area Hospital was designated as that lead case and proceeded to a lengthy hearing before arbitrator James K.A. Hayes beginning in October 2014 and ending in July 2015. Arbitrator Hayes heard multiple days of evidence (replicated to some extent in this proceeding) and issued his decision, discussed further below, on September 8, 2015 (hereafter “the Hayes Award”). Arbitrator Hayes found that the Sault Area Hospital’s VOM policy was inconsistent with the collective agreement and unreasonable. The grievance was, accordingly, upheld.

Conclusion
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It was noted at the outset that this case was, in large measure, a repeat of the one put before Arbitrator Hayes. It is not, therefore, surprising that there is an identical outcome. Ultimately, I agree with Arbitrator Hayes: “There is scant scientific evidence concerning asymptomatic transmission, and, also, scant scientific evidence of the use of masks in reducing the transmission of the virus to patients” (at para. 329). To be sure, there is another authority on point, and the decision in that case deserves respect. But it was a different case with a completely different evidentiary focus. It is not a result that can be followed.

One day, an influenza vaccine like MMR may be developed, one that is close to 100% effective. To paraphrase Dr. Gardam, if a better vaccine and more robust literature about influenza-specific patient outcomes were available, the entire matter might be appropriately revisited. For the time being, however, the case for the VOM policy fails and the grievances allowed. I find St. Michael’s VOM policy contrary to the collective agreement and unreasonable. St. Michael’s is required, immediately, to rescind its VOM policy. I remain seized with respect to the implementation of this award.

The Sault Area Hospital case had largely set the precedent, and the issues were were virtually identical. Another hospital was forced to scrap its “vaccinate or mask” policy.

5. BC Ombudsman’s June 2020 Report

2020.BC.ombudsman.report.2.orders.overreach

Conclusion: The Ministerial Orders Are Contrary to Law Based on the above analysis of the orders and the Emergency Program Act, I have concluded that to the extent that they purport to suspend or amend the provisions of statutes, Ministerial Orders M098 and M139 are contrary to law because they are not authorized by the governing legislation, the Emergency Program Act. Many of the orders made by the minister have been in place for more than two months. In my view, it is incumbent on government to seek an appropriate solution to this problem of invalidity that minimizes any negative impacts to the public. In this respect, I note that Ministerial Order M192, the order replacing M139, continues to purport to suspend and amend statutory requirements that apply to local governments.

The Exercise of Ministerial Discretion The Supreme Court of Canada has made clear that just as there are limits on what statutory powers can be exercised under a statute, there are also limits on how those powers can be exercised: . . . there is no such thing as absolute and untrammeled “discretion,” that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose . . . regardless of the nature or purpose of the statute

The BC Ombudsman found that 2 Ministerial Orders were actually illegal, and far exceeeded the discretion which they were allowed to use.

6. These Rulings Are Very Encouraging

The 2015 and 2018 rulings are important, as they are 2 precedents in a quasi-judicial body, that found mask wearing to be of very limited value. It’s even better (from a B.C. perspective), that Bonnie Henry is on record saying that there is little evidence that masks work.

The B.C. Ombudsman’s Report is also helpful. Although not binding on a court, those opinions do carry some weight. And 2 orders have already been found to be illegal.

Sault Area Hospital and Ontario Nurses’ Association, 2015 CanLII 55643 (ON LA)
https://www.canlii.org/en/on/onla/doc/2015/2015canlii62106/2015canlii62106.pdf
2015.ontario.nurses.association.mask.ruling

William Osler Health System, 2016 CanLII 76496 (ON LA)
https://www.canlii.org/en/on/onla/doc/2016/2016canlii76496/2016canlii76496.pdf
2016.william.osler.health.system.ruling

St. Michael’s Hospital v Ontario Nurses’ Association, 2018 CanLII 82519 (ON LA)
https://www.canlii.org/en/on/onla/doc/2018/2018canlii82519/2018canlii82519.pdf
2018.ontario.nurses.association.mask.ruling

BC Ombudsman’s June 2020 Report
https://bcombudsperson.ca/assets/media/ExtraordinaryTimesMeasures_Final-Report.pdf
2020.BC.ombudsman.report.2.orders.overreach

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Bit Of History, NGOs Trying To Open Canada’s Borders For Decades

It should worry Canadians greatly when there is a sustained effort to undermine and erode our borders. The overwhelming majority of people don’t know how far back this goes. Although efforts predate these cases, this is where we will start.

On the first attempt, the Canadian Council of Churches went to court to try to get certain new legislation thrown out. This legislation would have made it harder for people to enter Canada from the U.S. and claim asylum. It went to the Supreme Court, but ultimately, it was ruled the group did not have public interest standing.

Court History Over The Years

Again, many more attempts have been made in recent decades to erase borders, but this article will only focus on a few of them.

FIRST ATTEMPT: KILL “SAFE COUNTRY” DESIGNATION
(a) Federal Court, Trial Division, Rouleau J., [1989] 3 F.C. 3

(b) Canadian Council of Churches v. Canada,
Federal Court of Appeal, [1990] 2 F.C. 534

(c) Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236
1992.SCC.Rules.No.Standing

SECOND ATTEMPT: KILL CANADA/US S3CA
(a) 2008 ruling S3CA has no effect
Docket: IMM-7818-05
S3CA Provisions Struck Down

(b) The 2008 ruling is overturned on appeal
Canadian Council for Refugees v. Canada, 2008 FCA 229
Appeal granted, S3CA restored

THIRD ATTEMPT: TORONTO CASES TO STRIKE S3CA
(a) 2017, Prothonotary Milczynski considers consolidation
IMM-2229-17, IMM-2977-17, IMM-775-17
Milczynski Considers Consolidation

(b) 2017, CJ Crampton transfers cases to J. Diner
Crampton Transfers Consolidated Cases

(c) 2017, Justice Diner grants public interest standing
Citation: 2017 FC 1131
Amnesty Int’l, CDN Councils of Churches, Refugees

(d) 2018, Justice Diner grants consolidation of 3 cases
Citation: 2018 FC 396
Cases to be consolidated

(e) 2018, Justice Diner allows more witnesses
Citation: 2018 FC 829
2018.Diner.Calling.More.Witnesses

(f) 2019, Justice McDonald says no more witnesses
Citation: 2019 FC 418
2019.McDonald.No.More.Intervenors

1992: SCC Rules No Standing

1992.SCC.Rules.No.Standing
The CanLII link is here.

Federal Court, Trial Division, Rouleau J., [1989] 3 F.C. 3
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Rouleau J. dismissed the application. His judgment reflects his concern that there might be no other reasonable, effective or practical manner to bring the constitutional question before the Court. He was particularly disturbed that refugee claimants might be faced with a 72-hour removal order. In his view, such an order would not leave sufficient time for an applicant to attempt either to stay the proceedings or to obtain an injunction restraining the implementation removal order.
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Federal Court of Appeal, [1990] 2 F.C. 534
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MacGuigan J.A. speaking for a unanimous Court allowed the appeal and set aside all but four aspects of the statement of claim.
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In his view the real issue was whether or not there was another reasonably effective or practical manner in which the issue could be brought before the Court. He thought there was. He observed that the statute was regulatory in nature and individuals subject to its scheme had, by means of judicial review, already challenged the same provisions impugned by the Council. Thus there was a reasonable and effective alternative manner in which the issue could properly be brought before the Court.
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He went on to consider in detail the allegations contained in the statement of the claim. He concluded that some were purely hypothetical, had no merit and failed to disclose any reasonable cause of action. He rejected other claims on the grounds that they did not raise a constitutional challenge and others on the basis that they raised issues that had already been resolved by recent decisions of the Federal Court of Appeal.
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He granted the Council standing on the following matters raised on the statement of claim

Without getting too much into the technical details, the Supreme Court had to decide whether the Canadian Council of Churches, an organization, should be granted public interest standing to strike down all or part of the immigration laws. Ultimately, the ruling was no.

Disposition of the Result
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In the result I would dismiss the appeal and allow the cross-appeal on the basis that the plaintiff does not satisfy the test for public interest standing. Both the dismissal of the appeal and the allowance of the cross-appeal are to be without costs.
Appeal dismissed and cross-appeal allowed.
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Solicitors for the appellant: Sack Goldblatt Mitchell, Toronto.
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Solicitor for the respondents: John C. Tait, Ottawa.
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Solicitors for the interveners The Coalition of Provincial Organizations of the Handicapped and The Quebec Multi Ethnic Association for the Integration of Handicapped People: Advocacy Resource Centre for the Handicapped, Toronto.
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Solicitors for the intervener League for Human Rights of B’Nai Brith Canada: David Matas, Winnipeg, and Dale Streiman and Kurz, Brampton.
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Solicitors for the interveners Women’s Legal Education and Action (LEAF) and Canadian Disability Rights Council (CDRC): Tory, Tory, DesLauriers & Binnington, Toronto and Dulcie McCallum, Victoria.

Ultimately, the Supreme Court thought that a refugee, someone with actual standing (or something at stake) should be the one making the case.

Also worth noting, consider who some of the intervenors are in this case. A lot of people who want to make it easier to get into Canada.

2008: Safe Third Country Agreement, Parts Of IRPA Struck Out

S3CA, Parts of IRPA Struck

IT IS ORDERED THAT this application for judicial review is granted and the designation
of the United States of America as a “safe third country” is quashed.

Yes, the Canada/U.S Safe Third Country Agreement was actually declared to have no legal effect. However, this is not the end of it, as we will soon see.

IT IS DECLARED THAT:
.
1. Paragraphs 159.1 to 159.7 (inclusive) of the Immigration and Refugee Protection
Regulations and the Safe Third Country Agreement between Canada and the United
States of America are ultra vires and of no legal force and effect.
2. The Governor-in-Council acted unreasonably in concluding that the United States of
America complied with Article 33 of the Refugee Convention and Article 3 of the
Convention Against Torture.
3. The Governor-in-Council failed to ensure the continuing review of the designation
of the United States of America as a “safe third country” as required by
paragraph 102(2) of the Immigration and Refugee Protection Act.
4. Paragraphs 159.1 to 159.7 (inclusive) of the Immigration and Refugee Protection
Regulations and the operation of the Safe Third Country Agreement between
Canada and the United States of America violate sections 7 and 15 of the Canadian
Charter of Rights and Freedoms and are not justified under section 1 thereof.

THE FOLLOWING QUESTIONS are certified as serious questions of general
importance:
.
1. Are paragraphs 159.1 to 159.7 (inclusive) of the Immigration and Refugee
Protection Regulations and the Safe Third Country Agreement between Canada and
the United States of America ultra vires and of no legal force and effect?
2. What is the appropriate standard of review in respect of the Governor-in-Council’s
decision to designate the United States of America as a “safe third country” pursuant
to s. 102 of the Immigration and Refugee Protection Act?
3. Does the designation of the United States of America as a “safe third country” alone
or in combination with the ineligibility provision of clause 101(1)(e) of the
Immigration and Refugee Protection Act violate sections 7 and 15 of the Canadian
Charter of Rights and Freedoms and is such violation justified under section 1?

If the United States is not a safe country, then why do tens of thousands (if not hundreds of thousands) of people try to apply for asylum there every year?

The Safe Third Country Agreement was meant to prevent “asylum shopping” from taking place, but that is exactly what this ruling would have allowed.

Court Of Appeal Overturns Previous Ruling

The impugned Regulations and the Safe Third Country Agreement are not ultra vires the IRPA. Subsection 102(1) of the IRPA gives the GIC the power to promulgate regulations governing the treatment of refugee claims which may include provisions designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture. This is a broad grant of authority intended to give effect to Parliament’s expressed intent that responsibility for the consideration of refugee claims be shared with countries that are respectful of their Convention obligations and human rights. The factors to be considered before designating a country are expressly set out in subsection 102(2) of the IRPA. The applications Judge’s misapprehended concern that the GIC would have the discretion to designate a country that does not comply with the Conventions led him to transform the statutory objective of designating countries “that comply” into a condition precedent.

The applications Judge adopted a hypothetical approach to the respondent organizations’ Charter challenge, i.e. that a class of refugees would be treated a certain way if they were to present themselves at a Canadian land border port of entry. This approach went against the well-established principle that a Charter challenge cannot be mounted in the abstract. There was no evidence that a refugee would have to bring a challenge from outside Canada. The respondent organizations’ ability to bring the Charter challenge depended on John Doe. As the latter never presented himself at the border and therefore never requested a determination regarding his eligibility, there was no factual basis upon which to assess the alleged Charter breaches. The applications Judge thus erred in entertaining the Charter challenge.

[14] On December 29, 2005, the respondents launched an application for leave and judicial review seeking a declaration that the designation of the U.S. under section 102 of the IRPA was ultra vires, that the GIC erred in concluding that the U.S. complied with Article 33 of the Refugee Convention and Article 3 of the Convention against Torture and further, that the designation breached sections 7 and 15 of the Charter. For purposes of clarity, it is useful to set out in full the issues set out in the judicial review application filed before the Court:

[130] In short, a declaration of invalidity of the STCA Regulations is not required in order to ensure that they are not applied to claimants for protection at the land border in breach of either Canada’s international obligations not to refoule, or the Charter.
.
D. CONCLUSIONS
.
[131] For these reasons I would allow the appeal

The Federal Court of Appeal ruled that the Lower Court considered a hypothetical scenario, and wrongly applied it to a Charter challenge. Put simply, Charter challenges are supposed to be ground in fact, and not “what if” situations. The ruling was overturned, and the Safe Third Country Agreement was restored.

2017-Present: Toronto Challenge

Chief Justice Paul Crampton transferred 3 related cases to Justice Diner for case management. This is the same CJ Crampton who ruled that private citizens wishing to oppose the destruction of the S3CA don’t have standing.

Justice Diner granted public interest standing to 3 NGOs: Amnesty International, Canadian Council for Refugees, and Canadian Council of Churches.

Justice Diner order the 3 cases to be consolidated and tried together because of the overlapping issues.

Note: also see here, for decisions from the Federal Court in the matter above.

The case is still pending.

So Who Are These NGOs Doing All This?

Amnesty International
ai.01.certificate.of.continuance
ai.02.bylaws
ai.03.changes.in.directors
ai.04.notice.of.financials

B’nai Brith League For Human Rights
bblhr.01.bylaws
bblhr.02.change.registered.office
bblhr.03.amendments
bblhr.04.certificate.of.incorporation
bblhr.05.director.changes

B’nai Brith National Organization
bbno.01.director.changes
bbno.02.certificate.of.incorporation
bbno.03.change.registered.office
bbno.04.notice.of.financials

Bridges, Not Borders
Bridges Not Borders, Mainpage
Bridges Not Borders, About
Bridges Not Borders, Why They Cross
Bridges Not Borders, Media Page
Bridges Not Borders, Pro Asylum Shopping

Canadian Association Of Refugee Lawyers
carl.01.directors
carl.02.change.of.office
carl.03.bylaws.2015
carl.04.notice.of.return
carl.05.certificate.of.continuance

Canadian Council For Refugees
ccr.01.2019.director.changes
ccr.02.bylaws
ccr.03.bylaws.from.2014
ccr.04.certificate.of.continuance
ccr.05.annual.return

Plattsburgh Cares
Plattsburgh Cares Main Page
Plattsburgh Cares, Humanitarian Support

Solidarity Across Borders
Solidarity Across Borders’ Homepage
SAB Supports Illegal Migrant Caravans
SAB Supports Sanctuary Cities For Illegals
SAB Calls To Open Up The Borders

These are of course not the only NGOs working to open up our borders (and other nations’ borders as well), but it does at least provide some insight.

Also, see the above links in Section #1 for other articles published on these NGOs.

9. Look At The Bigger Picture

Last fall, the story made the news that a challenge would be coming to Toronto to the Safe Third Country Agreement.

However, the Canadian media left out important information. Shocking.

First, it didn’t go into any detail on the groups lobbying for this. It wasn’t just some helpless “asylum claimants”, but an organized effort to help erase Canada’s border with the U.S.

Second, the full extent of the NGO meddling is not mentioned. True, some media DO reference the 2007 case, but not further. It doesn’t provide a complete picture of what is going on. Nor does it mention how these groups are pushing similar initiatives elsewhere. Amnesty International, for example, claims to have 7 million members pushing to bring more migrants (primarily) to the West. The Canadian Council for Refugees, as another example, spends considerable time and effort lobbying our Parliament for more refugee friendly laws.

Third, there seems little concern for the Canadian who would have their safety and sovereignty eroded should this pass. Instead, the focus is always on people coming to Canada and what their needs are.

This is lawfare: using our courts and legal system to open our borders.

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The Origins Of True North Canada, Which Its “Founder” Hides

(This “charity” was originally called the Independent Immigration Aid Association. The goal was to help settle British immigrants into BC. It was acquired by Malcolm, renamed, and used for tax purposes for her media company.)

(From later in 2020. Interesting that a group claiming to provide independent coverage of the Government is in fact receiving subsidies from the same Government, to keep its operations going)

1. Media Bias, Lies, Omissions And Corruption

(1) https://canucklaw.ca/media-1-unifor-denies-crawling-into-bed-with-government
(2) https://canucklaw.ca/full-scale-of-inadmissibles-getting-residency-permits-what-global-news-leaves-out/
(3) https://canucklaw.ca/media-3-post-media-controls-msm-conservative-alternative-media/
(4) https://canucklaw.ca/media-4-much-conservative-content-dominated-by-koch-atlas/

2. Important Links

(1) https://tnc.news/about-us/
(2) http://archive.is/fOUxQ
(3) information about TNC on CRA website,
(4) http://archive.is/0Yquf
(5) 2015 Registered charity information return
(6) https://www.atlasnetwork.org/news/article/42-free-market-leaders-complete-think-tank-leadership-training
(7) http://archive.is/Y5fGh
(8) https://www.theglobeandmail.com/news/politics/kenneys-office-apologizes-for-new-canadians-stunt-on-sun-news/article543280/
(9) http://archive.is/Mwsba
(10) https://policyoptions.irpp.org/2016/07/06/a-response-to-candice-malcolms-losing-true-north/
(11) http://archive.is/N0j3Q
(12) https://www.cbc.ca/news/politics/fired-kenney-staffer-makes-a-comeback-1.1075263
(13) http://archive.is/rat87
(14) https://www.can1business.com/company/Active/Independent-Immigration-Aid-Association
(15) http://archive.is/3u4kU
(16) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/424449/index.do
(17) http://archive.is/FYtSb
(18) https://apps.cra-arc.gc.ca/ebci/hacc/srch/pub/dsplyBscSrch

3. Previously Covered By Press Progress

CLICK HERE, for prior coverage by PressProgress.ca.

When researching into True North Center’s tax returns and history, I stumbled across this piece on the subject. Quite thorough, and difficult to add to this, but let’s try anyway.

4. True North Originally Called I.I.A.A.

From Data On CRA Website

True North Centre for Public Policy
Business/Registration number: 132703448 RR 0001
Charity status: Registered
Effective date of status: 1994-06-18
Designation: Charitable organization
Charity type: Relief of Poverty
Category: Organizations Relieving Poverty
Address: 2030 – 10013 RIVER DR
City: RICHMOND
Province, territory, outside of Canada: BC

From “About Us” On Website

True North Centre for Public Policy (True North Centre) is a registered Canadian charity, independent and non-partisan. We conduct policy research on immigration and integration issues and provide timely investigative journalism on issues that affect Canada’s national security.
.
The True North Initiative is a not-for-profit advocacy organization that raises awareness around immigration and integration issues and advances Western democratic values.
.
Together, these organizations form True North Canada.

Interesting. On its own website, True North Canada claims to be about conducting policy research on immigration and integration issues.

However, in tax filings True North Centre for Public Policy (which claims to be a charity) says the organization is about relieving poverty. It also claims to be helping UK immigrants settle into BC.

The reason for this discrepancy is that the Independent Immigration Aid Association (I.I.A.A.) that was founded in 1994 was taken over by Candice Malcolm. It was renamed as TRUE NORTH CENTRE FOR PUBLIC POLICY. An interesting point to raise: why take it over? Why not just start a brand new organization?

It could be to continue the tax benefits that come with being a registered charity, which True North Center still officially is.

5. Registered Charity Information Returns, 2014

Director/trustee and like official # 1
Full name: Daniel J Brown
Term Start date: 2014-01-01
Term End date: 2014-12-31
Position: President
At Arms Length with other Directors? Yes

Director/trustee and like official # 2
Full name: Roger A Dawson
Term Start date: 2014-01-01
Term End date: 2014-12-31
Position: Vice President
At Arms Length with other Directors? No

Director/trustee and like official # 3
Full name: Carole Clark
Term Start date: 2014-01-01
Term End date: 2014-12-31
Position:
At Arms Length with other Directors? No

Director/trustee and like official # 4
Full name: Robert Davies
Term Start date: 2014-01-01
Term End date: 2014-12-31
Position:
At Arms Length with other Directors? Yes

Director/trustee and like official # 5
Full name: Thomas Viccars
Term Start date: 2014-05-01
Term End date: 2014-12-31
Position:
At Arms Length with other Directors? Yes

Director/trustee and like official # 6
Full name: Tom Moses
Term Start date: 2014-05-01
Term End date: 2014-12-31
Position:
At Arms Length with other Directors? Yes

Director/trustee and like official # 7
Full name: Peter Howard
Term Start date: 2014-01-01
Term End date: 2014-12-31
Position:
At Arms Length with other Directors? Yes

6. Registered Charity Information Returns, 2015

Director/trustee and like official # 1
Full name: Daniel J Brown
Term Start date: 2015-01-01
Term End date: 2015-12-31
Position: President
At Arms Length with other Directors? Yes

Director/trustee and like official # 2
Full name: Roger A Dawson
Term Start date: 2015-01-01
Term End date: 2015-12-31
Position: Vice President
At Arms Length with other Directors? No

Director/trustee and like official # 3
Full name: Carole Clark
Term Start date: 2015-01-01
Term End date: 2015-12-31
Position: At Large
At Arms Length with other Directors? No

Director/trustee and like official # 4
Full name: Robert Davies
Term Start date: 2015-01-01
Term End date: 2015-12-31
Position: At Large
At Arms Length with other Directors? Yes

Director/trustee and like official # 5
Full name: Thomas Viccars
Term Start date: 2015-01-01
Term End date: 2015-12-31
Position: At Large
At Arms Length with other Directors? Yes

Director/trustee and like official # 6
Full name: Tom Moses
Term Start date: 2015-01-01
Term End date: 2015-12-31
Position: At Large
At Arms Length with other Directors? Yes

Director/trustee and like official # 7
Full name: Peter Howard
Term Start date: 2015-01-01
Term End date: 2015-12-31
Position: At Large
At Arms Length with other Directors? Yes

7. Registered Charity Information Returns, 2016

Director/trustee and like official # 1
Full name: Daniel J Brown
Term Start date: 2016-01-01
Term End date: 2016-12-31
Position: President
At Arms Length with other Directors? Yes

Director/trustee and like official # 2
Full name: Roger A Dawson
Term Start date: 2016-01-01
Term End date: 2016-12-31
Position: Vice President
At Arms Length with other Directors? No

Director/trustee and like official # 3
Full name: Carole Clark
Term Start date: 2016-01-01
Term End date: 2016-12-31
Position: At Large
At Arms Length with other Directors? No

Director/trustee and like official # 4
Full name: Robert Davies
Term Start date: 2016-01-01
Term End date: 2016-12-31
Position: At Large
At Arms Length with other Directors? Yes

Director/trustee and like official # 5
Full name: Tom Moses
Term Start date: 2016-01-01
Term End date: 2016-12-31
Position: At Large
At Arms Length with other Directors? Yes

Director/trustee and like official # 6
Full name: Patricia Morris
Term Start date: 2016-01-01
Term End date: 2016-12-31
Position: At Large
At Arms Length with other Directors? Yes

8. Registered Charity Information Returns, 2017

Director/trustee and like official # 1
Full name: Kasra Nejatian
Term Start date: 2017-12-07
Term End date:
Position: Director
At Arms Length with other Directors? Yes

Director/trustee and like official # 2
Full name: Erynne Schuster
Term Start date: 2017-02-07
Term End date:
Position: Director
At Arms Length with other Directors? Yes

Director/trustee and like official # 3
Full name: William McBeath
Term Start date: 2017-12-07
Term End date:
Position: Director
At Arms Length with other Directors? Yes

9. Registered Charity Information Returns, 2018

Director/trustee and like official # 1
Full name: Kasra Nejatian
Term Start date: 2017-12-07
Term End date:
Position: Director
At Arms Length with other Directors? Yes

Director/trustee and like official # 2
Full name: Erynne Schuster
Term Start date: 2017-12-07
Term End date:
Position: Director
At Arms Length with other Directors? Yes

Director/trustee and like official # 3
Full name: William McBeath
Term Start date: 2017-12-07
Term End date:
Position: Director
At Arms Length with other Directors? Yes

10. Koch/Atlas Network, Canadian Partners

  • Alberta Institute
  • Canadian Constitution Foundation
  • Canadian Taxpayers Federation
  • Canadians For Democracy And Transparency
  • Fraser Institute
  • Frontier Center For Public Policy
  • Institute For Liberal Studies
  • Justice Center For Constitutional Freedoms
  • MacDonald-Laurier Institute For Public Policy
  • Manning Center
  • Montreal Economic Institute
  • World Taxpayers Federation

These “think tanks” all promote the same things: economic libertarianism; mass economic immigration; liberal or free trade; less government; larger role for private sector. Now, let’s connect some dots.

Spoiler alert: you will notice that none of the connections you are about to be shown actually appear in True North Canada’s public information. Almost like they didn’t want the public to know.

11. Candice Malcolm’s Ties To Koch/Atlas

Candice worked for Koch and the Fraser Institute, before getting into journalism. She now runs True North Initiative, which “identifies” as a non-profit group. Of course, there is also True North Center, which “identifies” as a charity.

This was a November 2014 Atlas gettogether to complete “THINK TANK LEADERSHIP TRAINING”, whatever that means. Canadian Taxpayer’s Federation rep, Candice Malcolm was there.

At this 2014 dinner, Malcolm was a member of the Canadian Taxpayer’s Federation. Yes, one of Atlas’ Canadian partners.

Malcolm leaves out any trace of her Atlas past in the TNC website. Not very candid, is it? Malcolm also omits being a political staffer, for Jason Kenney, who “enriched” the GTA as Immigration Minister, and who wants to enrich Rural Alberta now.

12. Kasra Nejatian’s Ties To Koch/Atlas

Interesting side note: Kasra Nejatian (a.k.a. Kasra Levinson) is Candice Malcolm’s husband. He is a Director at the Canadian Constitution Foundation, which is also part of Atlas Network. He’s part of the CCF, and she was part of Fraser and Koch Institute.

Interesting omission on the TNC site: not only does Candice not mention that Kasra — her husband — is a Director of a Koch group (CCF), she omits that he is a Director at True North Center, the “charity” branch of True North Canada.

There’s no information about this on the website. In fact, one would have to search Revenue Canada’s records in order to find this out. The TNC site doesn’t even say that THERE ARE any Directors.

Worth pointing out, Nejatian was also a staffer, for Jason Kenney, former Federal Immigration Minister, and current Alberta Premier.

13. William McBeath’s Ties To Koch/Atlas

One of the Directors for True North’s “charity” wing is William McBeath, who used to work for the Manning Center. Again, one would have to look at the Revenue Canada website to get this information, as it is not available on TNC.news.

Interestingly, he has also held party roles with both the Alberta and Federal Conservatives. Again, no mention of this on the TNC.news website. You need to check outside information.

14. Andrew Lawton, Ontario PC Candidate

True North admits that one of their fellows, Andrew Lawton, was a candidate in the 2018 Ontario Provincial election for the Progressive Conservative Party. A refreshing bit of candour considering what they leave out.

Nothing inherently wrong with journalists getting into politics, or politicians getting into journalism. However, being so recent, it should be noted the biases and beliefs Lawton will bring to the role.

15. Charity V.S. Non-Profit: CRA

CHARITY
NON-PROFIT ORGANIZATION

Purposes
must be established and operate exclusively for charitable purposes
can operate for social welfare, civic improvement, pleasure, sport, recreation, or any other purpose except profit
cannot operate exclusively for charitable purposes

Registration
must apply to the CRA and be approved for registration as a charity
does not have to go through a registration process for income tax purposes

Charitable registration number
is issued a charitable registration number once approved by the CRA
is not issued a charitable registration number

Tax receipts
can issue official donation receipts for income tax purposes
cannot issue official donation receipts for income tax purposes

Spending requirement (disbursement quota)
must spend a minimum amount on its own charitable activities or as gifts to qualified donees
does not have a spending requirement

Designation
is designated by the CRA as a charitable organization, a public foundation, or a private foundation
does not receive a designation

Returns
must file an annual information return (Form T3010) within six months of its fiscal year-end
may have to file a T2 return (if incorporated) or an information return (Form T1044) or both within six months of its fiscal year-end

Personal benefits to members
cannot use its income to personally benefit its members
cannot use its income to personally benefit its members

Tax exempt status
is exempt from paying income tax
is generally exempt from paying income tax
may have to pay tax on property income or on capital gains

GST/HST
generally must pay GST/HST on purchases
may claim a partial rebate of GST/HST paid on eligible purchases
most supplies made by charities are exempt
calculates net tax using the net tax calculation for charities
must pay GST/HST on purchases
may claim a partial rebate of GST/HST paid on eligible purchases only if it receives significant government funding
few supplies made by NPOs are exempt
calculates net tax the regular way

Given how Revenue Canada distinguishes between charities and non-profits, this may be why Candice Malcolm took over Independent Immigration Aid Association and renamed it to True North Center for Public Policy. They likely wouldn’t be able to obtain charity status on their own. Therefore, taking an existing charity might have been an easier bet.

While True North does do decent work, there is nothing to indicate that it deserves special status, or should be registered as a charity. Otherwise, virtually any media would qualify.

Seriously, what else is the reason for acquiring the Independent Immigration Aid Association? It’s not like Malcolm, Nejatian, or any of the others wish to preserve their legacy. In fact, without looking any deeper into the topic, one would never know about it.

So did Malcolm found True North Initiative? In a deceptively technical sense, yes. The “non-profit” branch of True North Canada came from her. However, the “charity” portion which makes the organization eligible for tax perks was founded in 1994 by a completely different group of people. A lie of omission.

16. What Exactly Is True North Canada?

Press Progress picked up on the inconsistencies in Malcolm’s ever-changing description of True North Canada. So let’s go through some of them.

True North is simultaneously a media company, an advocacy group, a registered charity, and “it’s complicated“.

Could be that Malcolm wants to keep the tax breaks that come with the current structure. That could be why she “founded” True North Initiative (a non-profit), yet the True North Center for Public Policy (a charity) was a rebranded one from 1994.

Now, for a semi-related, but interesting ruling from the Federal Court of Canada.

17. Federal Court Ruling: T-1633-19

Recently, True North and Rebel Media won court cases which overturned (on an interlocutory basis) the decisions of the Elections Commissioner to restrict them from covering Federal debates in the 2019 election. This is an interesting side note to the story.

Worth stating at the front: although there were a few different names to choose from, Malcolm et al chose to use True North Center for Public Policy (the charity), for the court case.

Well, yes. They do engage in advocacy. It says so right on their website. While this may come across as pedantic, they are not wrong about this. However, things are not that simple.

The Test for the Requested Relief
[24] The test the Court must apply when asked to issue a mandatory interlocutory injunction is set out by the Supreme Court of Canada in R v Canadian Broadcasting Corp, 2018 SCC 5 [CBC] at para 18:
In sum, to obtain a mandatory interlocutory injunction, an applicant must meet a modified RJR — MacDonald test, which proceeds as follows:
(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;
(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and
(3) The applicant must show that the balance of convenience favours granting the injunction. [emphasis in original]

[25] The Applicants bear the burden of proving to the Court on a balance of probabilities that they have met all three prongs of the tri-partite test. This Court observed in The Regents of University of California v I-Med Pharma Inc, 2016 FC 606 at para 27, aff’d 2017 FCA 8 that “[t]hese factors are interrelated and should not be assessed in isolation (Movel Restaurants Ltd v EAT at Le Marché Inc, [1994] FCJ No 1950 (Fed TD) at para 9, citing Turbo Resources Ltd v Petro Canada Inc (1989), 24 CPR (3d) 1 (FCA)).”

[26] The Order the Applicants seek is both extraordinary and discretionary. Given its discretionary nature, provided the tri-partite test has been met, the “fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case:” Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 25.

[37] There is also evidence in the record that some of the accredited news organizations have previously endorsed specific candidates and parties in general elections. The Commission responds that in those cases the advocacy was in editorials or produced by columnists. This begs the question as to where one draws the line as to what is and is not advocacy that disqualifies an applicant from accreditation. This goes to the lack of rationality and logic in the no-advocacy requirement.

This is a valid point. Most media outlets engage in some level of advocacy. So to disallow 1 or 2 outlets would be hypocritical.

[38] This also goes to the lack of transparency. Absent any explanation as to the meaning to be given to the term “advocacy” and given that the Commission accredited some organizations that have engaged in advocacy, I am at a loss to understand why the Commission reached the decisions it did with respect to the Applicants.

Agreed. The decisions weren’t really explained beyond the simple “you engage in advocacy”.

[39] Accordingly, I find that the Applicants are likely to succeed on the merits in setting aside the decisions as unreasonable.

The Procedural Fairness of the Process
[40] The application and scope of procedural fairness in administrative decision-making is explained by the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker].

[41] It was noted at para 20 of Baker that “The fact that a decision is administrative and affects ‘the rights, privileges or interests of an individual’ is sufficient to trigger the application of the duty of fairness.” In the matters before this Court the interests of those whose accreditation applications were rejected are most certainly affected. This was not disputed by the Commission; rather it submitted that the Applicants were afforded a fair process in accordance with Baker.

[42] The Supreme Court of Canada observed at para 22 of Baker that “the duty of fairness is flexible and variable, and depends on an appreciation of the context and the particular statute and the rights affected.” In paras 23 to 27, it listed five factors that a court ought to consider when determining the content of the duty of fairness in a particular case. There is no suggestion that these are the only factors a court may consider:
(i) The nature of the decision being made and the process followed in making it;
(ii) The nature of the statutory scheme and the terms of the statute pursuant to which the decision-maker operates;
(iii) The importance of the decision to those affected;
(iv) The legitimate expectations of those challenging the decision regarding the procedures to be followed or the result to be reached; and
(v) The choices made by the decision-maker regarding the procedure followed.

Conclusion
[68] I have found that these Applicants have satisfied the tripartite test for the granting of the injunction requested. Moreover, and for the reasons above, I find that granting of the requested Order is just and equitable in all of the circumstances.

[69] For these Reasons, following the oral hearing on October 7, 2019, the Court issued the following two Orders:
the Leaders’ Debates Commission / Commission des Debats des Chefs is to grant David Menzies and Keenan [sic] Bexte of Rebel News the media accreditation required to permit them to attend and cover the Federal Leaders’ Debates taking place on Monday, October 7, 2019 in the English language and Thursday, October 10, 2019 in the French language;
the Leaders’ Debates Commission / Commission des Debats des Chefs is to grant Andrew James Lawton of the True North Centre for Public Policy the media accreditation required to permit him to attend and cover the Federal Leaders’ Debates taking place on Monday, October 7, 2019 in the English language and Thursday, October 10, 2019 in the French language;

[70] After issuing these Orders, the Applicants requested and were granted an opportunity to make submissions on costs. The Court was later informed that “the parties have resolved the issue of costs” and thus no further Order is required.

For all the issues a person may have with an outlet, such as Rebel Media or True North Canada, it was nice to see this decision happen. The public is best served with more media available.

Regardless of how sketchy True North is, Elections Canada acted in a very heavy-handed way. The Courtruling was a very welcome victory.

18. Malcolm Misrepresents On Twitter

Malcolm claims to be the FOUNDER of True North Canada in her Twitter biography. While this is true on a technical level, it omits that she and her husband took an existing charity, renamed and repurposed it, and now use it for tax benefits.

It’s not entirely clear what this “non-profit” of True North Initiative adds, other than perhaps some cover. Slapping that on a rebranded charity seems to be what counts as “founding” these days.

While I support the challenge in Federal Court (allowing coverage of the debates), it was in the spirit of open media. It is not in any way to be seen as an endorsement of this “organization”. It is deceitful and underhanded.

Posted on

Gladue 2.0: Blacks Also Get Race-Based Discount In Sentencing, What The Media Missed

1. Important Links

(1) https://canucklaw.ca/race-based-discounts-in-criminal-courts/
(2) https://canucklaw.ca/child-killer-gets-transfer-to-healing-lodge-because-of-her-race/
(3) https://canucklaw.ca/public-policy-7-abolish-gladue-fix-underlying-problems/
(4) https://laws-lois.justice.gc.ca/eng/Const/page-15.html

Aboriginal Specific Cases
(A) R. v. Gladue, 1997 CanLII 3015 (BC CA)
http://archive.is/QKazg
(B) R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688
http://archive.is/vSWlo
(C) R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433
http://archive.is/Ol7tw

2. Context For This Article

Much of the Canadian public knows about “Gladue Rights”, which is essentially a race-based discount given to Aboriginal defendants in criminal proceedings. In short, judges must consider systemic racism and other discrimination, and search for ways to reduce their sentences.

However, this does not extend only to Aboriginals. Blacks can also use many of the same excuses in pleading for reduced punishment for crimes they commit.

Everyone, regardless of their race, should be against this. The only way a society works is when everyone is treated the same way for their actions. One group should not benefit, or be hindered by unequal laws.

3. Court Cases For Blacks

Here are some recent court cases in which “racial discrimination” or “system racism” was taken into account by judges sentencing black felons. This is not the complete list.

(A) R. v. Borde, 2003 CanLII 4187 (ON CA)
http://archive.is/xfD1s
(B) R v Reid, 2016 ONSC 954 (CanLII)
http://archive.is/QgCtC
(C) R. v. Diabikulu, 2016 BCPC 390 (CanLII)
http://archive.is/PNiAG
(D) R. v. Deng, 2017 BCPC 225 (CanLII)
http://archive.is/MwPKY
(E) R. v. Jackson, 2018 ONSC 2527 (CanLII)
http://archive.is/GGEDy
(F) R. v. Shallow, 2019 ONSC 403 (CanLII)
http://archive.is/Koklf
(G) R. v. Faulkner, 2019 NSPC 36 (CanLII)
http://archive.is/fW8hj
(H) R. v. Kabanga-Muanza, 2019 ONSC 1161 (CanLII)
http://archive.is/m36ac

Again, this is not nearly all of them, but a snapshot into what the legal system (it’s not really a justice system) has become in Canada.

4. Looking At A Cultural Assessment

[17] Cultural Assessment – Completed by Mr. R. Wright, MSW, RSW. It is extensive, well-informed and well-researched.
The Nature of an Impact of Race and Culture Assessment
Though much has been written about the intersection of race and the criminal justice system, and in particular the experience of North Americans of African descent, until the development of IRCA’s (sic) there had been no recognized form for the presentation of such a report. That people of African descent have been overrepresented among incarcerated persons in Canada has been studied by academics, justice system leaders, and activist persons. The Office of the Correctional Investigator took special notice of the conditions of inmates of African descent in federal correctional institutions in its year end report in 2013. It concluded:

“Black inmates are one of the fastest growing sub-populations in federal corrections. Over the last 10 years, the number of federal incarcerated Black inmates has increased by 80% from 778 to 1,403. Black inmates now account for 9.5% of the total prison population (up from 6.3% in 2003/04) while representing just 2.9% of the general Canadian population.” (p.8)

Now, 4 years after the advent of these reports in the well publicized YCJA matter described as R v. X, IRCAs have been widely accepted in Nova Scotia courts and have also been conducted in Ontario. Though I fully respect that the experience of aboriginal Canadians is quite unique, and I have no wish to expropriate or exploit their struggle and leadership, I nevertheless need to acknowledge that my development of IRCAs has been influenced by my familiarity with Gladue reports. Like Gladue reports, the goal of IRCAs is to provide courts with more background information about an offender’s race and cultural background to assist the court at arriving at a just sentence: A sentence that considers the circumstances of the offender, alternatives to incarceration, and does not further contribute to the systemic problems of overrepresentation of persons within correctional populations. This principle is generally stated in the Criminal Code of Canada with particular attention given to Aboriginal offenders:

718.2 A court that imposes a sentence shall also taken into consideration the following principles:
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

In keeping with these principles, it is a founding premise of IRCAs that a person’s race and cultural heritage should be considered as a significant factor in considering their sentence n a criminal matter. Not just because of cultural responses to normal stressors, but also because of the forces of racism that person experience and our growing understanding of how this affects outcomes when one encounters the justice and other government systems. In Nova Scotia we have significant reason to understand these effects. We are the province of the Royal Commission on the Donald Marshall, Jr., Prosecution (1989), which opening paragraph is very telling:

The criminal justice system failed Donald Marshall, Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983. The tragedy of the failure is compounded by evidence that this miscarriage of justice could – and should – have been prevented, or at least corrected quickly, if those involved in the system had carried out their duties in a professional and/or competent manner. That they did not is due, in part at least, to the fact that Donald Marshall, Jr. is a Native. (p.1)

We are also the province of the Black Learners Advisory Committee Report on Education: Redressing Inequity – Empowering Black Learners (1994). This report was produced as part of a comprehensive study of the education inequities that exist for African Nova Scotians (ANS). It produced 3 volumes of materials and 30 recommendations for education reform. That systemic racism exists in the Nova Scotia education system was well described by this report:

“Black Nova Scotians, like other Black Canadians, are victimized by a racist ideology and a racist social structure. Racism permeates the entire social, economic, political and cultural environment of Nova Scotian and Canadian….

During the BLAC research, we encountered widespread condemnation of the education system as biased, insensitive and racist. Systemic racism was seen as manifested in student assessment and placement; in labelling of large numbers of Black students as slow learners or having behaviour problems; in steraming (sic); in low teacher expectation; in denigration by and exclusion of Blacks from the curriculum; and in the total lack of responsiveness to the needs of Black learners and concerns of the Black community.” (pp. 34, 35)

Similarly, the differential and disadvantageous experience of African Canadians in the federal corrections system has been documented by the Office of the Correctional Investigator in it year end report in 2013. Nova Scotia’s review of the Mental Health and Addictions system produced the Together We Can Strategy (2012) found that African Nova Scotians were among a number of diverse communities whose mental health and addictions treatment needs had not yet been served sufficiently. This Nova Scotian finding was identified earlier in a national study completed by a subcommittee of the Mental Health Commission of Canada. The document they produced: Improving Mental Health Services for Immigrant, Refugee, Ethno-Cultural and Racialized Groups: Issues and Options for Service Improvement (2009). It is interesting to note, that I served on the MHCC subcommittee and was a contributor to that report. Ms. Lana MacLean, my colleague and friend who is also a person who conducts IRCAs served on the committee that produced the Nova Scotia review document.

Knowing all of this, an IRCA then seeks to understand how an individual’s ANS heritage and interaction with formal and informal systems has affected their involvement in criminal behaviour, will be a factor in their treatment while incarcerated, and will be a factor in their rehabilitation and reintegration in the community. These issues are consistent with the expectations of the report described in Judge Curran’s order requesting: “preparation of a cultural assessment report regarding his African Nova Scotian background and any cultural factors and racial factors which are suggested to be systemic in nature, but may also have individual impacts on him,” Examination of “the role played by Derek Demitrius Faulkner’s cultural and racial background with respect to the criminal offence herein.”

Preparation of this Report
In preparing this report I have participated in the following activities:
• Interview in person of Mr. Faulkner at Northeast Nova Scotia Correctional Facility
• Review of JEIN report, Crown Brief and other Disclosure material
• Interview by phone of Mr. Michael Dull, counsel for Mr. Faulkner in the civil matter
• I attempted contact with other collaterals but were not able to reach them in time for the drafting of this report. I will continue to reach out to collaterals in the event that I am called to testify on this report.

According to the cultural report, Nova Scotians engage in system racism. This is the case of R. v. Faulkner, 2019 NSPC 36 (CanLII).

It had nothing to do with any of the AGGRAVATING FACTORS that were cited in Paragraph 5 of the sentencing report

II AGGRAVATING FACTORS
(1) Robbery is inherently violent and there were implied threats of violence to clerk #1 and specific to #2
(2) Lengthy record including two robberies, 2005/2009
(3) Accused released from custody; breached release
(4) Prolonged nature of the offence – accused was in store for over an hour
(5) Clerk asked member of public to call police

Nothing to do with committing a robbery and making threats.
Nothing to do with a robbery in 2005.
Nothing to do with a robbery in 2009.
Nothing to do with other criminal convictions.
Nothing to do with being in the store over an hour.
Nothing to do with breaching conditions of release.
The court needs to consider the “systemic racism” that blacks face.

Yeah, it’s all about those racist Nova Scotians. Turned him into a career criminal.

5. Section 15 Of Canadian Charter

Equality Rights
Marginal note:
Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Marginal note:
Affirmative action programs
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Serious question: under the Canadian Charter, would this count as a law that ameliorates conditions of disadvantaged individuals? Guess we aren’t so equal after all.

6. Follow-up To Old Story

This topic was covered in a previous article in June last year. It was reported that this may become the law of the land. Admittedly I should have checked deeper into it at the time.

However, it seems that these cases have been going on for many years. The National Post just missed that detail. It just has not been codified into law — yet.

How exactly do we live in any sort of just society, when there are different rules and standards for people based on their skin colour? This completely flies in the face of equality under the law, which SHOULD apply to everyone.

7. 3 Levels Of Justice Now?

Under the Gladue ruling, judges are REQUIRED to take an Aboriginal person’s background into account when handing down sentencing. There is no discretion in the matter.

However, for blacks, judges MAY take race and circumstances into account, but this is not mandatory.

Everyone else, though, must take responsibility for their own actions. They don’t have the race card to play.

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Canada’s Bill C-14, Assisted Suicide

1. Important Links

(1) https://www.canada.ca/en/health-canada/services/medical-assistance-dying.html
(2) https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do
(3) https://www.canlii.org/en/ca/scc/doc/1993/1993canlii75/1993canlii75.html
(4) https://laws-lois.justice.gc.ca/eng/Const/page-15.html
(5) https://laws-lois.justice.gc.ca/eng/acts/C-46/page-53.html#h-119931
(6) http://www.parl.ca/DocumentViewer/en/42-1/bill/C-14/royal-assent#EH3

C-14 British Columbia Humanist Association
C-14 Christian Legal Fellowship
C-14 Communication Disabilities Access Canada
C-14 Dying with Dignity Canada Nova Scotia Chapter
C-14 Euthanasia Prevention Coalition
C-14 Justice For Children And Youth
C-14 Life Canada
C-14 Protection Of Conscience Project
C-14 Quebec Association for the Right to Die with Dignity
C-14 Saskatchewan Pro-Life Association Inc
C-14 St. Catharines Right To Life Association</a

2. Law Against Assisted Suicide

Suicide
Marginal note:
Counselling or aiding suicide
241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not,
(a) counsels a person to die by suicide or abets a person in dying by suicide; or
(b) aids a person to die by suicide.

Now there is more to be considered. See section 6.

3. Canadian Charter, Section 7

Guarantee of Rights and Freedoms
Marginal note:
Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The 2015 decision ruled that the blanket ban violated the Section 7 Charter rights, and that there was no “saving” of it under Section 1.

4. SCC Orders Parliament To Fix Law

XIII. Conclusion
[147] The appeal is allowed. We would issue the following declaration, which is suspended for 12 months:
Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The Supreme Court of Canada ruled that the prohibition against assisted suicide violated Section 7 of the Charter, which addresses security of the person.

The ruling is very long, and addressed the issue from a number of legal questions. It also addressed whether the Lower Courts should be bound by a 1993 ruling on much the same issues. It’s too lengthy to go through in an article, but is worth a read.

5. Bill C-14, Assisted Dying

SUMMARY
.
This enactment amends the Criminal Code to, among other things,
(a) create exemptions from the offences of culpable homicide, of aiding suicide and of administering a noxious thing, in order to permit medical practitioners and nurse practitioners to provide medical assistance in dying and to permit pharmacists and other persons to assist in the process;
(b) specify the eligibility criteria and the safeguards that must be respected before medical assistance in dying may be provided to a person;
(c) require that medical practitioners and nurse practitioners who receive requests for, and pharmacists who dispense substances in connection with the provision of, medical assist­ance in dying provide information for the purpose of permitting the monitoring of medical assistance in dying, and authorize the Minister of Health to make regulations respecting that information; and
(d) create new offences for failing to comply with the safeguards, for forging or destroying documents related to medical assistance in dying, for failing to provide the required information and for contravening the regulations.

Following the Supreme Court ruling, the Federal Government was ordered to remedy the situation. Bill C-14 was introduced in 2016 to set out the guidelines for medically assisted death.

6. Medical Assistance Exemption

Eligibility for medical assistance in dying
241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:
(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
(b) they are at least 18 years of age and capable of making decisions with respect to their health;
(c) they have a grievous and irremediable medical condition;
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

Grievous and irremediable medical condition
(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

To be fair, there are considerable safeguards written into the law to ensure that the person suffering is actually the one making the decision, and that it is voluntary and informed.

7. Where Does It Go From Here?

Currently, the law applies only to adults. But what happens when children decide that they want to make decisions over their own “health care”? Will minors be allowed to get it themselves? This is currently being considered.

The law allows for assisted suicide in the case of serious conditions which cause pain and is irreversible, and to get worse. How much will that get watered down over time? Perhaps this is just a foot-in-the-door technique to be able to end lives over more minor things.

What will happen to medical staff who refuse to participate in this? Will they become subject to sanctions for discrimination, or failing to fulfill a duty?

In fairness to Trudeau (it feels weird defending him), introducing this, or similar legislation, was forced by the 2015 Supreme Court ruling. Some bill had to be introduced at some point, so he doesn’t own this one.

Personally, this is conflicting. People should have control over their own lives, yes, but trending down a slope where lives are valued less and less is very troubling. How we treat and care for people reflects the society we live in, and this is the wrong direction to head in.

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Race & Crime Rates: What Liberals Won’t Admit (Gladue 2.0?)

Quotes From Ruling

In a way this is not surprising at all. The 1997/1999 Gladue rulings created essentially a “discount” for Aboriginal offenders specifically on the basis of “historical oppression”.

Now, there is a case that is pending before the Ontario Court of Appeals, which could see the same provisions apply to blacks as well. This is a (potential) expansion of a horrible idea: race-based-discounts in the criminal justice system.

People should be outraged by this. Your crime, seriousness, and past (if any) criminal record should impact your sentence. Not your race, ethnicity, or skin colour. It is the anti-thesis of equality under the law.

[2] A jury found you guilty of a number of offences. I convicted you of possession of an unauthorized firearm, possession of a prohibited firearm with ammunition, and carrying a concealed weapon. The jury acquitted you of assaulting a peace officer with intent to resist arrest.
[3] The basic facts of your crime are straightforward. On December 13, 2014, the police received a call about a home invasion in Scarborough. As the police officers sent to investigate drove to the scene, they came upon four Black males walking in the parking lot. The officers were in plainclothes and drove unmarked police cars. One officer stopped the young men. You were one of them. You ran. As you ran, D.C. Moorcroft, who was not the officer who stopped you but was also driving into the lot, accelerated to stop you.

Police were responding to a home invasion. When they arrived, there just happened to be 4 black men in the area, and the defendant took off.

Of course, it is just a coincidence that he had a gun on him. Now it is apparently a charter violation that a police car was used to stop him.

[6] I must now sentence you for your offences. Let me go over what the Crown and your defence lawyers said should be the sentence. These positions were pretty far apart. The Crown asked for 4 to 4.5 years in jail. Your lawyers argued that the sentence should be 1 year before credit was given for the Charter breaches.

There is something here we are not being told. The Crown (supposedly) wants 4 to 4.5 years for gun possession for a first time offender? What else went on that is not included?

[9] Let me briefly explain to you what I did in Jackson. I began my judgment in that case by saying sentencing is a very individual process. The criminal law has recognized that there are cases where, in order to determine a fit and proportionate sentence, consideration must be given to an individual’s systemic and social circumstances. These circumstances may extend beyond a person who is being sentenced to include factors such a systemic discrimination and historical injustice. This has been recognized by the criminal courts, particularly in the case of Indigenous offenders. While the distinct history of colonial violence endured by Indigenous peoples cannot simply be analogized to Black Canadians, I found that the ability to consider social context in a sentencing decision is extended to all under section 718.2(e) of the Criminal Code. This allowed me to consider the unique social history of Black Canadians in sentencing Mr. Jackson. Mr. Jackson was a Black male offender not too much older than you, who pleaded guilty to a charge of possession of a prohibited gun. His lawyers presented a great deal of evidence to me on systemic anti-Black racism and its role in Mr. Jackson’s life. I took note of this evidence. I also took judicial notice, independently of these materials, of the history of colonialism, slavery, policies and practices of segregation, intergenerational trauma, and both overt and systemic racism that continue to affect Black Canadians today. With an understanding of these social factors I was able to better appreciate the circumstances that led Mr. Jackson to come before me. I sentenced him accordingly.

Gladue was horrible for exactly this reason. Instead of holding people accountable to as similar a standard as possible, some get to play the “oppression card” and get much lighter sentences. It stands the idea of equality before the law completely on its head.

The ruling would then go on to quote some social worker at length about the struggles that blacks face, and how its circumstances must be considered.

[66] Giving your acts a contextual analysis in light of the wealth of evidence provided to me on this sentencing, I do not find this to be a weighty aggravating factor in your case. I appreciate that accused people should not flee from police. Especially carrying a loaded firearm. But it is understandable to me that you ran. It was not a coldly calculated act to escape but one based upon emotion and a state of mind that has been shaped both generally and specifically by the historical racism suffered by Blacks and by you. In other words, not every flight from the police should be treated the same. Here there is a connection in the evidence between your act of flight and the systemic factors. I find it would be wrong to punish you more severely for this. When I view how anti-Black racism and historical injustices have contributed to your actions, the needs of general deterrence and denunciation normally raised by this act of flight is tempered. Given that the choice you made to do so was affected by these factors, the moral blameworthiness of your actions is also lessened.
[67] In addition, in assessing the seriousness of the offences, when I look at potential aggravating factors that often exist in the case law, here, there is no evidence that your possession of the gun is connected with other crimes such as crimes of violence or drug trafficking.
[68] There are also some very traditional mitigating factors. You are a first offender. You were young when you committed these crimes. You were 22 years old. You have supportive family and friends. There is a side of you that speaks well to your rehabilitation. I have mentioned them before. Your warmth, kindness, and respectfulness.

Being a young, first time offender is a legitimate reason to cut someone a break. No argument on that point.

But that is where the agreement ends. All this nonsense about historical racism and systemic factors (repeated throughout the ruling), was nauseating to read.

[81] Sentencing must always be an individual process. In these cases judges gave sentences of 1 year, 15 months, 18 months, just under 2 years. Some of these sentences were permitted to be served in the community rather than in jail. The cases are: R. v. Ishmael, 2014 ONCJ 136; R. v. Garton, 2018 ONSC 544; R. v. Rutledge, 2015 ONSC 6625; R. v. Shunmuganathan, 2016 ONCJ 519;
R. v. Nuttley, 2013 ONCJ 727;
R. v. Kelsy, [2008] O.J. No. 3879;
R. v. Cadienhead, [2015] O.J. No. 3125;
R. v. Williams, [2011] O.J. No. 3352 (S.C.J.);
R. v. Brown, [2006] O.J. No. 4681 (S.C.J.);
R. v. Carranza, [2004] O.J. No. 6041 (S.C.J.)

Fair enough. The Judge was looking for a little consistency.

[82]82 Now I want to talk about that elephant in the room. I know you are in custody on other charges. What those charges are were not explained to me by either the Crown or your lawyers. However, I do know from some of the materials filed what the charges are said to be. Of course, there is a charge of breaching your bail. There are also some other offences. But they are not gun offences. Your surety surrendered your bail so you are in custody on the charges I am sentencing you for. To someone hearing this, I am sure they will say you have not behaved well while on bail. They may be right. But you are presumed innocent of these alleged new offences. I am sentencing you as a first offender. Someone without a criminal record. The new charges do not change that. The presumption of innocence is the foundation of our criminal justice system. While it may be hard for many to understand, I cannot let that foundation be eroded or chipped away by taking into account the new charges.

So, “first-timer” comes with a few caveats: Morris breached his bail, and is facing additional charges. However, the Judge has decided to ignore this in sentencing him as a first-timer.

It would be nice to know how exactly bail was breached, and what exactly the other charges are. But they are not mentioned.

[92] I also find that the anti-Black racism evidence presented on the sentencing is relevant in assessing the weight I should give this. Racism can operate very subtly. It can be there lurking in the background of people’s minds, unconsciously influencing their judgment and making them act in certain ways towards certain people.
[93] I want to be clear that I am not painting the police with the brush of overt racism in this case. I do not have the evidence to support that. But I am troubled. If I asked myself: If it was someone other than a young Black man running away from the police that night, would D.C. Moorcroft have driven in the aggressive way that he did? Would Mr. Morris and the car have collided? I am troubled because in all honesty, I cannot conclude it would have happened in the same way.

So, racism happens, but I have no evidence that there was any in this case. Therefore, I will still bring it up as a mitigating factor.

This Judge talks in circles about how there is all this systemic racism, and how it can be very subtle. Yet he notes that there is no proof that there was racism in this case. So what is the point then?

E. CONCLUSION
[97] After mitigation for the Charter violations, I have sentenced you to a jail sentence of 12 months. You have done a lot of dead time. The sentence will be based upon the credit you will receive for that dead time. I will credit you 1.5 to 1 for that pre-trial custody. The evidence shows that you received no real programming, had a difficult time in jail, and at times experienced physical discomfort in jail due to your medical conditions. You also did not receive consideration for parole or remission while in pre-trial custody. I find it right to give this enhanced credit. Therefore, 243 days of pre-trial custody will be used up. You will be sentenced to a further 1 day in jail on each charge concurrently. I also made a DNA order, s. 109 weapons prohibition, and the forfeiture order.

So not even a year. Just 8 months.

University of Toronto Article On Race & Crime

Although not specific to this case, this article by Akwasi Owusu-Bempah is an interesting read. If nothing else, it shows the extent that this academic will go to avoid the obvious conclusion:

SOME GROUPS JUST COMMIT MORE CRIME

Yes, that’s it. Groups are not equal when it comes to committing crime. That is the hard truth that lawyers, judges, politicians, academics and social workers refuse to address.

On the topic of “disparity”, it’s worth noting that males make up over 90% of prison inmates. However, there is no push claiming discrimination against them. Oh, the double standards.

Instead, he will talk in circles. Owusu-Bempah will blame mistrust, victimization in black and Aboriginal neighbourhoods, racial bias (without proving it), and Court discrimination (again, without proving it). Although the author touches the topic of crime rates, he avoids making any definitive statements. It’s like he is deliberately avoiding the obvious answer.

Abstract and Keywords
Canada effectively bans systematic collection and dissemination of racially disaggregated criminal justice statistics. A significant proportion of Canada’s racial minority populations perceive bias in the criminal justice system, especially on the part of police. Aboriginal and black Canadians are grossly overrepresented in Canada’s correctional institutions. Some evidence suggests that both Aboriginal and black populations are overrepresented with respect to violent offending and victimization. Social conditions in which Aboriginal and black Canadians live are at least partially to blame for their possibly elevated rates of violent offending. Evidence indicates that racial bias exists in the administration of Canadian criminal justice. At times, this discrimination has been supported by court decisions. Discrimination and disparity are at times acknowledged by government, but they are seldom wholeheartedly addressed. There is a lack of political will to address issues of racial minority overrepresentation in relation to manifestations of racial discrimination or to the societal conditions that lead to criminal offending.

Oh, the mental gymnastics of the author are blatant:

  • Minorities “perceive” bias against them
  • There is overrepresentation
  • Bias in administration
  • Government acknowledges disparity
  • No political will to address overrepresentation
  • Societal conditions lead to offending

However:

  • The author mentions overrepresentation regarding offending, but immediately lumps it in with “victimization”, as if to muddy the waters
  • Lack of available objective data, yet we are able to make conclusions based on much more subjective things, such as perceived bias
  • Right, not elevated rates, but “possibly” elevated rates

Connections among race, crime, and criminal justice are often portrayed in Canadian media images and are captured in the popular imagination. Yet, in comparison to the United States and Great Britain, these phenomena receive relatively little attention from Canadian academics and policy makers. A lack of readily available criminal justice data disaggregated by race makes it particularly difficult for researchers to examine the nature of these racial differences. Thus, we are unable to determine the extent to which higher rates of offending among certain racial groups and discrimination in the administration of criminal justice contribute to the apparent overrepresentation

There’s a lack of data, but this author will still make claims about bias and discrimination, without actually proving it. He will also tap-dance around the obvious: If a group commits crime at a much higher rate, doesn’t that justify higher incarceration rates?

Nonetheless, available evidence indicates that a significant proportion of Canada’s racial minority populations and a sizable proportion of the white population perceive bias in the criminal justice system. These public perceptions are supported by data that show that certain racial minority groups, particularly Aboriginal and black Canadians, are grossly overrepresented in Canada’s correctional institutions. Further evidence indicates that racial bias does exist in the administration of Canadian criminal justice, and, at times, this discrimination has been supported by court decisions. We cannot discount, however, the probability that increased rates of offending among certain racialized groups contributes to their overrepresentation in correctional statistics. As we show in this essay, research suggests that Aboriginal and black Canadians are overrepresented with respect to violent offending and victimization. The Canadian federal government itself has pointed out that the social conditions in which Aboriginals live is at least partially to blame for their rates of violent offending (Department of Justice 2009). We have previously made the same connection with respect to black Canadians (Wortley and Owusu-Bempah2011a).

Owusu-Bempah contradicts himself here. He claims there is “perceived” bias from many people. Not “actual” bias, but perceived bias. He then goes on to say that there is overrepresentation among certain groups.

He then offers a perfectly reasonable explanation for the higher incarceration rate: increased offending.

Just a thought. If a certain group commits crime at a higher rate, then it is not bias or discrimination that there would be more of them involved with the courts.

Unfortunately, there is an apparent lack of political will to address issues of racial minority overrepresentation in the Canadian criminal justice system. Ambivalence to address these issues relates both to the manifestations of racial discrimination in the system, as well as to the societal conditions that lead to criminal offending. Discrimination and disparity may be at times acknowledged, but they are seldom wholeheartedly addressed. When addressed, the means are seldom thoroughly evaluated for effectiveness, and, when evaluated, the results are rarely made public.

Difficult to believe, but this is just the next paragraph. Owusu-Bempah claims there is no political will to address racial minority overrepresentation. Yet, he previously commented that there was a higher rate of offending.

This seems like a solution in search of a problem.

Many have argued that relatively high rates of homicide and gun crime among African Canadians and Aboriginals in Canada are reflective of their overrepresentation in street gangs. Unfortunately, official police statistics on Canadian gangs are almost nonexistent

Yeah, good job.

Canada’s reluctance to acknowledge and document race is most evident in the operation of its criminal justice system and in its criminal justice policies. Unlike in the United States and the United Kingdom, where race-based criminal justice statistics are readily available to the public and researchers alike, the Canadian criminal justice system does not systematically collect or publish statistics on the race of individuals processed through the system. The debate over the collection of racial data from the criminal justice sector in Canada can be traced back as far as 1929 (Roberts 1992). Discussions about the collection, or more accurately, the public release of these data have emerged more recently in the context of broader debates about race, crime, and the administration of criminal justice—particularly related to the circumstances of Aboriginal and black Canadians (Hatt 1994; Johnston 1994; Gabor 1994; Roberts 1994; Wortley 1999; Owusu-Bempah and Millar 2010). On the one hand, allegations of racial discrimination have been leveled against the justice system to explain the overrepresentation of certain racial minority groups in the few available sources of police and correctional data. On the other hand, it has been suggested that racial minorities are disproportionately involved in criminal activity, which accounts for their disproportionate involvement with the criminal justice system as reflected in the data. Unfortunately, our ability to test either of these claims is limited by the absence of available data, despite numerous calls for its collection. Several major attempts have been made in Canada to collect racial and ethnic data, particularly in the policing sector (Fine 1990; Wortley and Marshall 2005; Leclair InfoCom 2009); these attempts, however, have not paved the way for systematic data collection

The author addresses crime rates, but gives a wishy washy answer. There’s not enough data to tell one way or another whether it is: (a) discrimination; or (b) actual crime, that results in the disparities. Yet, feelings about perceived bias and virtue signalling bureaucrats apologizing are apparently good evidence.

There is an interesting point to be taken from this: if there was concrete data on race and crime rates, then the debate could be put to bed once and for all.

The article keeps repeating the same idea and muddying the waters: we don’t have data, so we can’t be sure what causes discrepancies in the representation.

If the author wanted a reference point, why not check the data from the US and UK? After all, he knows it is there.

Crime Data From Britain

CLICK HERE, for UK demographic crime data.

There were 698,737 arrests in 2017/18, a fall of 8% on the previous year – both years’ figures exclude Lancashire Police (see ‘Things you need to know’)
-Black people were over 3 times as likely to be arrested as White people – there were 35 arrests for every 1,000 —Black people, and 11 arrests for every 1,000 White people
-overall, men were over 5 times as likely to be arrested as women – there were 22 arrests for every 1,000 men, and -4 arrests for every 1,000 women
-Black women were more than twice as likely to be arrested as White women – there were 7 arrests for every 1,000 —Black women, and 3 arrests for every 1,000 White women

And a few pages later,

there were 698,737 arrests in England and Wales in 2017/18 (excluding the Lancashire police force area), at a rate of 13 arrests per 1,000 people
there were 62,501 fewer arrests in 2017/18 compared with the previous year, a fall of 8% (excluding Lancashire Police from both years)
Black people were over 3 times as likely to be arrested as White people – there were 35 arrests for every 1,000 Black people, and 11 arrests for every 1,000 White people
people with Mixed ethnicity were over twice as likely to be arrested as White people – there were 25 arrests for every 1,000 people with Mixed ethnicity, and 11 arrests for every 1,000 White people

So the UK Government is willing to be quite open and blunt about the disparities in race and offending. And what about the US.

Crime Data From US FBI

CLICK HERE, for FBI Uniform Crime Reporting, Table 21. This is compiled from 2016, though the stats over the years don’t change much.

Looking at Table 21C (people aged 18 or over)
Worth noting the US black population is about 13% commits:

  • 52% of homicides
  • 28% of rapes
  • 51% of robberies
  • 32% of aggravated assault
  • 36% of violent crime
  • 41% of weapons carrying
  • 30% buying stolen property

…. and so on.

Are blacks greatly overrepresented in US prisons? Absolutely. And for a very good reason — disproportionate amount of violent and serious crime.

Are US sentences in general too harsh? A fair point, but a topic for another day. This post concerns treating people equally.

Gladue 2.0 Addresses Wrong Problem

With this proposed change, the scope of Gladue will be broadened. This means that it will not be restricted to Aboriginals.

The claim is that this will reduce overrepresentation in the courts and prison system. Problem is: it focuses on making prisons look like a random sample of society, rather than a reflection of who is actually committing the most serious crime.

It’s what liberals do not want to acknowledge:

SOME GROUPS JUST COMMIT MORE CRIME

It is not necessarily due to “oppression” or “systemic bias”, or any other such nonsense. It is caused by these groups, on average, behaving differently. While it is obviously desirable for society to reduce crime and their prison populations, this is a backwards approach.

Should the Ontario Court of Appeals (and possibly the Supreme Court of Canada) confirm this nonsense, racial equality dies. Your skin colour will determine your punishment, not your crime. Though arguably that was the case with Gladue.

Keep in mind, it is the Supreme Court of Canada that upheld Gladue in the first place (appealed from BC). There is nothing to indicated they wouldn’t extend their ruling to this.

MORRIS CASE:
(1) https://handbook.law.utoronto.ca/sites/default/files/users/alzner/R%20v%20Morris.pdf
(2) https://laws-lois.justice.gc.ca/eng/acts/C-46/page-78.html#h-121951
(3) https://laws-lois.justice.gc.ca/eng/acts/C-46/page-21.html#h-117146
(4) https://nationalpost.com/news/judge-champions-lenient-sentence-for-young-black-man-in-gun-crime-because-of-systemic-racism-and-poverty
(5) https://nationalpost.com/news/ontario-case-could-set-special-rules-for-sentencing-black-offenders-similar-to-gladue-for-indigenous-people?utm_medium=Social&utm_source=Twitter#comments-area

US/UK:
(1) https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-21
(2) https://www.ethnicity-facts-figures.service.gov.uk/crime-justice-and-the-law/policing/number-of-arrests/latest

GLADUE:
(1) https://www.canlii.org/en/bc/bcca/doc/1997/1997canlii3015/1997canlii3015.html
(2) https://www.canlii.org/en/ca/scc/doc/1999/1999canlii679/1999canlii679.html
(3) https://www.canlii.org/en/ca/scc/doc/2012/2012scc13/2012scc13.html

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