An imminent court case could be an important step toward enshrining environmental rights in Canada's constitution. Original Creative Commons photo by Flickr user EuroMagic.

Over the last 40 years, 90 countries have amended their constitutions to include the right to a healthy environment. Portugal was the first in 1976, and since then scores have followed, from Argentina to Zambia. But not Canada.

What we have is the 1999 Canadian Environmental Protection Act. Under that law, polluters found in violation can be fined up to $1 million a day, sentenced to three years in jail, or both. Unfortunately, CEPA’s overall efficacy is dubious. Consider environmental lawyer and author David R. Boyd’s comparison: fines levied under CEPA from 1988 to 2005 totalled $2,224,302; in 2009, the Toronto Public Library collected $2,685,067 in overdue book fines. “It is absolutely vital for us in the years ahead to amend our constitution to reflect the right to a healthy environment,” says Boyd. Doing so prompts many notable environmental improvements and, better yet, allows people to hold governments accountable—that’s key considering who most often suffers environmental burdens.

Take Sarnia, home of the Aamjiwnaang First Nation. Canada’s first oil refinery opened there around 1871. Today, Sarnia is home to 40 percent of Canada’s petrochemical industrial operations. Within 25 kilometres of the Aamjiwnaang reserve, there are more than 60 industrial facilities, about 46 of them on the Canadian side of the border. Among these are three of the top 10 air polluters in Ontario. In 2005, these facilities emitted almost 132,000 tonnes of air pollutants.

“If people had a constitutional right to live in a healthy environment,” says Boyd, “a government or court would have stood up and said it is unjust to continue piling pollution onto these people.” Instead, in 2010, two members of Sarnia’s Aamjiwnaang First Nation launched a lawsuit against Ontario’s Ministry of the Environment; the case goes to court next year. The two members of the Aamjiwnaang assert that by permitting a recent 25 percent increase in production at a Suncor refinery, the government has violated Section 7 of the Canadian Charter of Rights and Freedoms: the right to life, liberty and the security of the person. Lawyers also cite a violation of equality rights under Section 15 of the Charter, saying the Aamjiwnaang bear a disproportionate environmental burden.

However, according to Ecojustice lawyer Justin Duncan, who is arguing the case, if the constitutional right to a healthy environment already existed, “we would be arguing about the amount of pollution and comparing that to existing laws.” In other words, without an explicit constitutional right, it takes judicial gymnastics to justify environmental protection. Responsibilities also remain ambiguous, Duncan adds, making it difficult to enforce regulations or respond to modern environmental challenges. Talk about murky waters.

The Charter represents the cornerstone of Canadian civil society: it proscribes the democratic, legal, equality and language rights that, together, make up the freedoms we enjoy.  It is the bill of rights that guarantees all of the civil and political rights that make Canadian society the open, free and generally tolerant place (the G20 aside) that it is.

The rights enshrined in the Charter–the right to “life, liberty and security of the person,” among others—are key to Canada’s national self-image, and so you would assume that they would amount to more then a mere trifling concern.  Yet the federal government’s failure to repatriate Omar Khadr is reinforcing a lesson hard learned by many Canadians during the G20: our government is entirely capable, and far too willing, to ride roughshod over our rights. And what’s even scarier is the public’s non-reaction to Khadr’s case, which proves just how complacent many Canadians will be while their rights are stripped.

And it is in this respect that the Charter and the rights it enshrines have been forgotten by many within Canadian society–and if not fully forgotten, then perhaps forcefully consigned a safe distance behind a barricade of riot police as our government elevates fear-mongering and ‘security’ over liberty and legality.

Despite numerous rulings from Canada’s courts, including a recent ultimatum from the Supreme Court demanding our government act to protect his rights during the trial or repatriate him for trial in Canada, Toronto-born Khadr is the last remaining Western citizen held at Guantanamo Bay.  While all other nations have repatriated their detainees—including England, France and most recently Yemen—Canada remains the holdout.

At question here is not Khadr’s innocence or guilt.  Even if we presume the worst of Khadr—that he is indeed guilty of throwing the hand grenade that fatally wounded American medic Christopher Speer in 2002, that he did so unprovoked, willingly and, at the tender age of 15, with complete awareness of his actions and that he is an unrepentant jihadist—his treatment since his arrest would make even those responsible for the Patriot Act blush.

Here are the facts. Khadr has been held for eight years without trial: so much for section 8, 9, 10 and 11 of of the Charter guaranteeing a presumption of innocence until proven guilty, a “fair and public hearing by an independent and impartial tribunal” in a “reasonable time.”  A pretrial hearing revealed that his initial questioning at Afghanistan’s Bagram prison occurred while he was shackled to a stretcher following his hospitalization for severe wounds suffered during the fighting and was sedated for pain.  His first interrogator, identified in a fittingly Orwellian manner only as “Interrogator One,” was later convicted of detainee abuse in a separate case; he threatened Khadr with gang-rape and death to coerce the 15-year-old suspect into talking.  For parts of his interrogation he was hooded and handcuffed with his arms restricted painfully above his shoulders, and he was systematically deprived of sleep before cycles of interrogation. This conduct clearly violates the Charter’s section 12 prohibition on cruel and unusual treatment or punishment.

Khadr’s case represents the first time a Western country will try someone for war crimes allegedly committed as a child since the Second World War, an act that has earned condemnation from the United Nations, Amnesty International, and many others.

The most recent court verdict placed the onus on the Federal Government to protect Khadr’s rights and bring him home; Ottawa, predictably, appealed the verdict knowing full well that with Khadr’s impeding trial set to begin next month they’ve dodged any legal responsibility to act.

So–what are we left with?  Well, for one, we’re left with Omar Khadr facing the grim prospect of a military tribunal in the United States with zero support or interest from Ottawa. But more pertinently we’re left with a government who has shown their true nature yet again—they prorogued Parliament when it raised unappealing questions on the Afghan detainee issue, they quashed civil liberties when people took to the streets to demand change, and they rebuffed the Supreme Court and the international community in what is set to be the first case in modern history of a child soldier standing trial.

All these events add up to a gradual erosion of our civil liberties and constitutional rights, and the blithe indifference of so many Canadians is ominous.

Newspaper photo editors show their creativity when selecting images for this story. Bottom left is from the Star, that actually dispatched a photographer instead of using the file-photo cliché of "eyes peeking through veil"

Quebec is going ahead with its ludicrous ban on religious head-coverings like the niqab and the burka on provincial government property. It’s an astonishing piece of legislation that manages the improbable feat of being baselessly arbitrary and obviously xenophobic. The whole law is crafted to be targeted at a single identifiable—and extremely tiny—minority, but Premier Jean Charest swears up and down that it’s simply intended to ensure that everyone has to show their face to get government services. But everyone understands that the real point of the law is to get a handful of observant muslim women to take off their niqabs—just Google “niqab ban,” and it’s pretty obvious that everyone knows the score. It’s a creepy piece of social engineering, with added bonus dashes of Islamophobia and paternalism.

Constitutional experts called up by newspapers are pretty unanimous in their opinion that this is unconstitional and will be challenged right out of the gate:

“This legislation will probably be considered a breach of human rights,” said Lorraine Weinrib, a leading constitutional expert and professor with the University of Toronto’s law school. […]

By cutting off access to such services to health care and education to women who are following Muslim dress codes, Ms. Weinrib said Quebec is “discriminating” and “disadvantaging” people on the basis of their religion and gender.

“Denying people health care or other government services is such a draconian result, it seems extreme,” she said.

The Law is Cool blog has an extended post today on the niqab law and why it is both legally and ethically untenable. I would encourage you to give it a read — it gives a lengthy primer on some of the core principles of Canadian charter rights, and how they apply specifically in this case. And it goes deeply into the complexities of religious and cultural accommodation: It’s perfectly reasonable to query the religious, social, gender, and cultural dilemmas posed by the niqab. The reasons that some women wear them are numerous and complex—I even believe that quite a few of them are not good reasons, but it’s not up to me.

Cynically, I think the Charest government knows that the law is unconstitutional, and is introducing it to stir the electoral interest of a (depressingly large) segment of society that mistrusts immigrants in general and muslims in particular. There’s nothing like a manufactured bogeyman to spook the base into action.

Two Afghan women wear burkas in Northern Afghanistan. Creative Commons photo by Steve Evans.

Banning burkas has long been a popular idea among immigration hardliners on the European right, who claim that the head-to-toe woman’s garment is a matter of national security. Canadians may scoff at such paranoia, but the idea is gaining some momentum here, and the push is coming from an unexpectedly liberal source. Last October, the Muslim Canadian Congress asked Ottawa to introduce legislation outlawing both the burka and niqab, calling them “political symbols of Saudi-inspired Islamic extremism.”

While MCC senior vice president Salma Siddiqui argues the ban is needed to address possible security risks posed by citizens who can’t be easily identified, it’s not the organization’s only concern. Indeed, second to security, the MCC has some underlying (and more compelling) feminist goals. Just ask MCC communications director Farzana Shahid-Hassan, who accuses Islamists of pushing back the equality clock, telling media: “It is of utmost importance that the Canadian government take the lead and end this medieval misogynist practice once and for all.” Both she and Siddiqui dismiss the notion that burkas are protected by the Charter’s right to religious freedom. For proof, they point to prominent Egyptian imam sheik Muhammad Tantawi’s edict declaring the garments a cultural tradition—not a religious duty. “It cannot be argued anymore that [wearing the burka] is a religious right,” says Siddiqui.

…but banning the burka is not the answer

Last June, French President Nicolas Sarkozy slammed the burka during a joint session of parliament: “In our country, we cannot accept that women be prisoners behind a screen, cut off from all social life, deprived of all identity.” Though Sarkozy might find it difficult to imagine anyone choosing to don a burka, not every woman who does is forced to. “It’s insulting to the intelligence of women who wear the burka to say they oppress themselves by making this choice,” says Alaa Elsayed, Islamic Society of North America-Canada’s director of religious affairs. The key word here is choice. In Canada, there are no reasonable grounds to ban any form of religious or cultural clothing, and though sheik Tantawi’s liberal interpretation of Islam is laudable, no one person can determine how every Muslim must observe their faith. Telling women what they can and cannot wear will not address root causes of misogyny and oppression. To do that, we must ensure all Canadians understand their rights while providing recourse for women who feel shunned or threatened by elements in their religious and cultural communities. Anything less amounts to little more than grandstanding.

Historic treaty boundaries between Canada and Aboriginal peoples. Not representative of any proposed outline for an Aboriginal province; vast areas of Canada have never been formally surrendered or ceded by Aboriginal peoples. Courtesy Ministry of Natural Resources. Click to Enlarge

The Royal Proclamation of 1763 included a clause prohibiting British colonists from purchasing “Lands of the Indians,” so as not to commit more of the “Frauds and Abuses” that characterized colonial takeovers of Aboriginal territory. To my reading, this measure was intended to make clear to the English colonists that Aboriginal Peoples enjoyed equal status. As we know, that’s not quite how it worked out.

In 1987, after the premiers met at Meech Lake and agreed to open the Constitution, I proposed to several prominent people involved in the process that the easiest way to respect that commitment, and to lessen the offence of their putting Quebec before Aboriginals, would be to create an 11th province out of the remaining Aboriginal and territorial lands. Twenty-two years later, First Nations are still fighting to get even a modicum of self-government.

When Canada was patriating the Constitution in 1982, Aboriginal leaders were able to create enough domestic and international pressure on the federal and provincial governments that the first ministers committed to making the next round of constitutional change about Aboriginal issues. They even enshrined in the Constitution a requirement for first ministers to have one, and then two more meetings with Aboriginal leaders.

But the election of the Progressive Conservative party under Brian Mulroney in Ottawa, and the defeat of the separatist Parti Québécois in Quebec at the hands of the Liberals under Robert Bourassa, suddenly moved the now infamous “Quebec round” ahead of Aboriginal people. While the constitutional requirement of first ministers’ meetings with Aboriginal leaders to amend the Constitution was met, it seems with hindsight that these meetings were simply pro forma, as Bourassa and Mulroney already had plans for the Meech Lake Constitutional Accord.

The accord failed, in part, due to a single Aboriginal member of the Manitoba legislature named Elijah Harper who refused to give unanimous consent so it could be adopted by the Manitoba legislature by the Mulroney government’s declared deadline for ratification: June 23, 1990.

A year later, the Mulroney government appointed a Royal Commission on Aboriginal Peoples. Among its recommendations were a list of powers that Aboriginal nations needed to protect their language, religion, culture, and heritage.

The underlying concepts are similar to the powers that the Fathers of Confederation from Lower Canada had identified as necessary for the preservation of the francophone language, religion, culture, and heritage. Letting provincial governments have the powers necessary to protect language, culture, and religion, was the key to Confederation and then the innovation of federalism was chosen for the new Dominion of Canada. Even though Canada was based on this idea of division of powers to allow for regional cultural autonomy, the federal and provincial governments have rejected similar devolution of powers to Aboriginal communities or provincehood for the Northern territories. The federal and provincial governments claim the population is too few and too dispersed to manage all these powers. And, of course, small provinces and Quebec do not want to start adding multiple provinces, beginning with three in the North, as their own relative influence would diminish.

But what about one province for all Aboriginal Peoples?

Aboriginal lands, including the three Northern territories, are legally held in reserve on behalf of Aboriginal Peoples. The federal government acts as trustee over the land, and this creates a rather distasteful paternalistic dimension to Aboriginal–Non-Aboriginal relations. What if our government simply takes all this land held in reserve and returns it to Aboriginals? Make all that land the 11th province of Canada.

The structure of government for this new province is unimportant and frankly not the business of the people who don’t live on this land. The constitutional change would be simpler than one would imagine. It would not require the unanimous consent of the provinces. According to the Constitution Act, 1982, the agreement of only seven provinces, representing the majority of the population, is needed for the federal parliament to create a new province. But it also states that this is “notwithstanding any other law or practice,” and for the federal parliament to take all remaining Aboriginal land and designate it the “final” province, given constitutionally entrenched treaty rights and federal jurisdiction over “Indians, and land reserved for Indians,” it may even be possible to do part of the change without provincial consent.

This change does not even have to significantly alter the existing structures of Aboriginal communities—unless, of course, they decide to alter them on their own once they have obtained provincehood. In many of the current provinces there are three levels of government managing provincial powers, namely the provincial government, regional governments and municipal governments. So, for example, the Government of Nunavut could continue as a regional government within the new Aboriginal province and the Sambaa K’e Dene Band could continue to operate similar to a municipal government, with authority delegated from the Aboriginal province. As the Aboriginal province would have all of the powers that Aboriginals have identified as central to the preservation of their languages, religions, and cultures, it can delegate powers as needed locally or act provincially as expedient.

With the exception of the creation of a provincial government, this is pretty close to the position the federal government has been taking vis-à-vis territorial governments and local band councils. The big change will be that in the future, instead of Aboriginals demanding from the federal government the right to handle their own affairs, they would be dealing with their own provincial government—a government they elect and that is accountable to them.

For those concerned about corruption within band councils, their own provincial government would regulate these matters and being concerned about how monies transferred to the local governments are handled, it would undoubtedly do so more effectively than the federal government, and without the racism or paternalistic interference. Equalization payments to the province would replace the now direct transfer to Aboriginals and their band councils, thus eliminating the demoralizing stigma of dependency. What is more, some of the Aboriginal land held in reserve is resource-rich, providing an independent source of revenue.

Critics of nationalism most strongly reject the idea of a province based on ethnicity. But based on its territory and its land base, the new 11th Province would not be exclusively Aboriginal. Many non-Aboriginals live on these lands and within the broader Aboriginal grouping there are First Nations, Inuit, and Métis, subdivided by hundreds of individual Aboriginal nations. This would be a civic nation like Quebec, and a province like any other, though the provincial leadership will likely be Aboriginal.

This largely Aboriginal province will be bigger in territory, richer in resources, and competitive in population size to the average Canadian province. It can negotiate with the more influential provinces, where many of its off-reserve citizens live or work, namely Alberta, B.C., Quebec, and Ontario. And, like the other civic nation of Quebec, its premier, by virtue of representing a cultural group that is in the minority across Canada, would have a powerful voice at the table of first ministers.

With provincehood would come an increase in Aboriginal members in the Senate and House of Commons. Aboriginal Peoples would finally be truly engaged in Canada’s political process—and this is essential for full citizenship and equality.

It’s no doubt that clashes between protesters and police will end up being the big story of the 2010 Olympics. There are new bylaws on the books, the usual International Olympic Committee rules, our own Canadian Charter rights, and official statements from the Vancouver Police Department—and they all contradict each other.

So, how do you know what’s legal and what’s not? We tried to sort out all of the different rule-books for you — but we got stuck, too.

Here’s what you can (Y) and can’t (N) do — depending on which authority figure’s watching at the time.

Click to enlarge:

Vancouver 2010 Do's and Don'ts

The fight for free speech is not the work of angels. Academics love Evelyn Hall’s famous saying, “I disapprove of what you say, but I will defend to the death your right to say it.” In the age of promiscuous online speech, the sentiment of two university protestors seems more apt: “Free speech for all. Even douchebags.”

Marc Lemire, the cherubic-faced webmaster of white supremacist Freedomsite, is the latest unpalatable hero in the fight to fix Canada’s hate speech laws. On September 2, the Canadian Human Rights Commission vice-chairperson, Athanasios Hadjis, acquitted Lemire of hate speech charges for comments on the site accusing gays of conspiring to spread AIDS. Hadjis also declared the Section 13 hate speech provisions of Canada’s Human Rights Act unconstitutional. The decision is not legally binding. But it should be.

In addition to Canada’s rarely applied criminal laws against hate speech, human-rights commissions have had the authority to prosecute hate speech since 1977. This was expanded to include internet-based hate in 2001. The tribunal has a staggeringly low burden of proof compared to most legal proceedings; for instance, it’s easier to prosecute someone for hate speech than it is for libel. And until Lemire’s case, no one had ever been acquitted of hate speech by the CHRC, a record that would be scandalous for any other court. It puts Canada at odds with the hate speech laws of most other nations. It also puts us at odds with our own values.

We protect religion and equality because we recognize that these freedoms make individuals’ lives better. But we protect expression because unfettered dissent is the only way to protect democracy. When a government official sits across from conservative blogger Ezra Levant in a 25-square-foot conference room and asks him to explain his decision to publish the infamous Danish Mohammed cartoons, she is asking a single citizen to justify his political beliefs before the power of the state. Levant may be a blowhard, but that scenario should give everyone—left, right, whatever—serious pause.

The stated reason for upholding hate speech laws is that they protect minorities from greater harm. Or, as Bernie Farber, CEO of the Canadian Jewish Congress, ominously puts it:, “Racist war, from the ethnic cleansing in Cambodia, to the Balkans, to Darfur, to the Holocaust, did not start in a vacuum. Hateful words do have an effect.” We need a better justification than comparing ourselves to far-flung genocidal regimes. In Canada, we already prosecute rare hate-based assaults, murder, and yes, genocide. Hate speech laws punish people for creating the mere potential for violence, even though violence rarely materializes.

Even if hate speech rarely leads to violence, it is true that it demoralizes minorities and threatens tolerance. After anti-Islamic comments by Levant and Maclean’s columnist Mark Steyn made headlines, a poll found that 45 percent of Canadians believe Islam promotes hatred and violence. The CHRC is right to worry about this kind of view taking hold. But trying to ban speech, especially on the internet, only gives it wings. When Levant posted the videos of his CHRC hearings to YouTube they received over 500,000 hits, and clips were featured on numerous mainstream media programs.

The (re)legalization of hate speech would be difficult and unpalatable. But we don’t have to approve of what the douchebags say—we just have to let them say it.

Desiré Munyaneza

Quebec Superior Court judge André Denis made history on May 22, 2009, when he convicted Desiré Munyaneza of seven counts of war crimes and crimes against humanity. Munyaneza, he said, had “intentionally killed dozens” during the Rwandan genocide of 1994 and “raped several women and pillaged homes and businesses.” For the first time ever, a Canadian court tried and found guilty a citizen of another country for crimes committed outside of Canada. It was an important test of Canada’s Crimes Against Humanity and War Crimes Act of 2000, which grants Canadian courts greater authority to try and punish war criminals residing in Canada, regardless of their nationality. The law itself and Justice Denis’s judgment sends a powerful message: if you commit monstrous crimes anywhere in the world, you will not be able to evade justice in the nooks and crannies of technicality and jurisdiction. Canadian justice is coming for you.

Just a day earlier, another Canadian court sent out a much different message. On May 21, 2009, the Supreme Court of Canada declined to consider whether or not suspected Taliban fighters in the custody of the Canadian Forces in Afghanistan are entitled to the rights and protections of the Canadian Charter of Rights and Freedoms. Amnesty International and the British Columbia Civil Liberties Association had asked the Supreme Court to judge whether the Canadian military had the right to hand Afghan terror suspects over to the indigenous government, where reliable reports were saying they were suffering torture and abuse. Amnesty and the BCCLA posed two questions to the court: “Does the charter apply … to the detention of non-Canadians by the Canadian forces…?” and, if not, would it apply if “the transfer of the detainees in question would expose them to a substantial risk of torture?” To which the Supremes said, merely: “Questions answered in the negative.”

So: which is it?

Is Canadian law so universal—so undeniably and cosmically just—that it applies to everyone, no matter their location or nationality, as in Munyaneza’s case? Or do our laws stop sharply at our borders, with no obligation to extend our protections to non-citizens in the custody of our government, as in the case of the Afghan prisoners? It’s one or the other—it can’t be both.

Canada’s lawmakers apparently want to keep the credit and deflect the blame. Canada is trying to make up for lost time on the war-crimes front—having earned a deserved reputation as a safe haven for Nazi war criminals in the late 20th century—and wants to strut its new tough-on-crime credentials to the international community. This is why Munyaneza was not deported back to Rwanda or the International Criminal Court, both of which have their own systems for prosecuting exactly these cases. We’re quite happy to take the convenient and comfortable position of condemning a well-known genocidaire and throwing him in our prison, a trophy we’ve awarded ourselves. But when it comes to the politically awkward prospect of extending our justice to alleged terrorists and insurgents in Afghanistan, well, suddenly it’s complicated. Not good enough. Human rights are human rights—no exceptions. If our prosecutions are global, then so are our protections, and the Afghan detainees must receive those benefits. Will Canadian justice come for them, too?