Section 7 protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.
I like how tight and punchy the Government of Canada frames the principles of fundamental justice in its Charter statements. I’m familiar with each concept though, admittedly, through a different (academic) lens. I suspect that this framing will help me to have more fulsome and productive interactions with legislative drafters in the future.
We have come a long way in routing the taboos that stand in the way of justice for victims of sexual assault. But there is still a distance to go. The problems are complex and rooted in centuries of culture and myth. The law, imperfect as it may be, is a powerful tool in achieving lasting change. But real justice will come only when we change attitudes—when respect for the autonomy of every person replaces old myths grounded in ownership, control, and power.
– Beverly McLachlin, Truth Be Told: My Journey Through Life and the Law
In the wake of the Toronto attack any number of journalists are trying to become experts on the ‘incel’ community, which defines itself as a community of men who are involuntarily celibate and as deserving intercourse with women. It’s led to some suggestions that maybe it’s appropriate to think about policy solutions to the ‘problem’. At issue, of course, is that some persons have failed to recognize the problem itself. Consider Ross Douthat, who links Amia Srinivasan’s ruminations on the links between desire and politics with incels, effectively conjoining a misogynistic subculture with “the overweight and disabled, minority groups treated as unattractive by the majority, trans women unable to find partners and other victims … of a society that still makes us prisoners of patriarchal and also racist-sexist-homophobic rules of sexual desire.” Douthat continues to ultimately argue that a combination of commerce, technology, and efforts to destigmatize sex work will lead to “at a certain point, without anyone formally debating the idea of a right to sex, right-thinking people will simply come to agree that some such right exists, and that it makes sense to look to some combination of changed laws, new technologies and evolved mores to fulfill it.”
Douthat’s entire argumentative structure — that the ‘problem’ to solve in an inability to engage in sexual, if not romantic, relationships — is predicated on the notion that there is such a thing as a legitimate right to intercourse. There is not. There is a legitimate right to safe, respectful, and destigmatized sexual relationships and activities. There is a right to sexual education, to sexual health and wellbeing, but there is no right to intercourse: such a right would imply that the act of penetrating another person is necessary and appropriate. That is clearly not the case.
Instead, the problem with the incel community is linked with misogyny. Specifically, as Jessica Valenti writes, the problem is with misogynist terrorism, a situation where certain men’s disdain towards women drives mass murders. Part of solving this particular problem is linked with addressing the underlying culture in America, and the world more generally. Specifically, she writes:
Part of the problem is that American culture still largely sees men’s sexism as something innate rather than deviant. And in a world where sexism is deemed natural, the misogynist tendencies of mass shooters become afterthoughts rather than predictable and stark warnings.
The truth is that in addition to not protecting women, we are failing boys: failing to raise them to believe they can be men without inflicting pain on others, failing to teach them that they are not entitled to women’s sexual attention and failing to allow them an outlet for understandable human fear and foibles that will not label them “weak” or unworthy.
It’s essential that men, and boys, learn about how to engage with other humans in non-destructive ways. Such a process is borderline revolutionary because it entails reshaping how cultural, social, legal, and economic relationships are structured, and any such restructuring must be motivated by a rebalancing of power relationships across genders and races (and, ultimately, geographies). The outcome will be that the privilege that straight white men have enjoyed for centuries will be diminished and, correspondingly, restrict the social and economic opportunities that some men have enjoyed solely because of their gender and race. But those changes are essential if we’re to actually confront the misogyny and racism that underlies not just incel culture, but that of mainstream society and politics as well.
Inspiring Quotation of the Week
Writing—I can really only speak to writing here—always, always only starts out as shit: an infant of monstrous aspect; bawling, ugly, terrible, and it stays terrible for a long, long time (sometimes forever). Unlike cooking, for example, where largely edible, if raw, ingredients are assembled, cut, heated, and otherwise manipulated into something both digestible and palatable, writing is closer to having to reverse-engineer a meal out of rotten food.
The evidence on the lack of effectiveness and costs of minimum sentence is clear. In 2016, Wilson-Raybould said that minimum sentences were a priority. After almost a year of inaction, that priority is manifest in a concern about public opinion?
But perhaps this should not be a surprise given that in 2016 The Canadian Press reported that the Liberals were eyeing a “politically viable strategy” to bring changes to minimum sentences.
After a decade of ideological criminal justice policy at the hands of the Harper government, swift and principled action is imperative. Inaction means unjust court results, less safe streets, increased court delays and ballooning costs.
Minimum sentences represent the lowest-hanging fruit for meaningful justice reform. Their counterproductive and negative impacts are well documented.
This is not a matter for debate. The solutions are known and uncomplicated.
All we need now is a justice minister with the principle and conviction to take action. Unfortunately, it seems that piece is still missing.
I heartily agree: these types of sentencing rules must be abolished and discretion returned to the bench.
There can be no debate — delays in our justice system are a very bad thing. With every week, month and year of delay, memories fade, the quality of evidence degrades and victims are denied legal closure.
And, often intentionally overlooked is the reality that court delays mean that accused persons who are presumed (and often are) innocent suffer ongoing stigma, stress, loss of employment, oppressive bail conditions and incarceration waiting for their trial dates.
Let’s get one thing straight — there is not one accused person being held in our Dicken-sian provincial jails who is intentionally delaying their day in court. There is simply no benefit to do so. Ontario’s remand centres are violent, overcrowded, humanity-destroying hellscapes, which are completely devoid of any rehabilitation programming or basic human comforts.
Among the most aggressive opinions have come from D.C. Magistrate Judge John M. Facciola, a bow-tied court veteran who in recent months has blocked wide-ranging access to the Facebook page of Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University student accused of making ricin in his dorm room. In another case, he deemed a law enforcement request for the entire contents of an e-mail account “repugnant” to the U.S. Constitution.
For these and other cases, Facciola has demanded more focused searches and insisted that authorities delete collected data that prove unrelated to a current investigation rather than keep them on file for unspecified future use. He also has taken the unusual step, for a magistrate judge, of issuing a series of formal, written opinions that detail his concerns, even about previously secret government investigations.
“For the sixth time,” Facciola wrote testily, using italics in a ruling this month, “this Court must be clear: if the government seizes data it knows is outside the scope of the warrant, it must either destroy the data or return it. It cannot simply keep it.”
Broad based access to telecommunications information can be extremely revealing: law enforcement know this, civil advocates (and defence attorneys) know this, and (increasingly) justices know this. And as justices in particular become more cognizant of just what law enforcement agencies are accessing, and of authorities’ decisions to not target their searches but instead collect (and retain) the entirety of people’s personal information, we’ll see more and more pushback against authorities’ overreaches.
Politics and justice tend to move slowly, often to the point where they ‘lag’ a decade or more behind technology and social norms. However, even these conservative systems tend to eventually correct themselves. As federal American judges ‘balk’ at over collection we’ll see these issues of evidence collection rise through the courts until, hopefully, a good ruling is issued by the Supreme Court of the United States. And then we’ll move onto the next overreach that authorities identify and begin exploiting…
Mobs don’t lead to justice. They to politics of shame, dismissal of the rule of law, and (more often than not) a willingness to ‘ban’ actions, associations, and speech that is disliked if not illegal. Those rights have to be protected, regardless of how repugnantly they are used, so that democratic societies can operate as thriving environments of human dignity and freedom instead of nations where normalcy quiets the human spirit.
And so began the journey that resulted in my path intersecting with Matthew Duncan’s path. And thence to these reasons, with a slight detour through territory that might have confused Lewis Carroll.
I suppose that I should clarify that there was no menace in the man’s directive to me to get out of town. He was a friend and a colleague in two careers. His suggestion had been that he and I should change positions for a fortnight, giving him exposure to the realities of the northern reaches of Toronto, while I would enjoy a similar change of environment in the more sylvan environs of Niagara Region. I might even see a few plays in the evenings, he pointed out.
And thus I came to meet Mr. Duncan.
At heart, Mr. Duncan’s case was unremarkable. A minor alleged Highway Traffic Act offence led to a police-citizen interaction in the parking lot of Mr. Duncan’s apartment building in the wee hours of the morning. A request that Mr. Duncan produce his licence led to an alleged refusal, which led to an attempt to arrest him, which led to a struggle, which was captured on a very poor quality video taken on a mobile phone, at the end of which Mr. Duncan found himself being placed under arrest for allegedly assaulting a police officer. Nothing unusual in all that. The bread and butter of provincial court.
Of course, I hadn’t counted on the freemen on the land.
In January, the government filed a declaration [PDF] signed by Mark Bradley, the FOIA director of DOJ’s National Security Division, explaining what records would be responsive to EFF’s request. The descriptions of the documents are extremely basic. For instance, Bradley explains that there are 200 relevant documents dated from May 2006 to Sept. 2011 that were provided to a key House intelligence committee, and that they total 799 pages. It goes on in that fashion.
At today’s hearing in Oakland federal court, US District Judge Yvonne Gonzalez Rogers suggested that the document wasn’t going to be sufficient.
“Why can’t I have a basic categorization of what the documents are?” asked Gonzalez Rogers.
“That list itself is classified,” responded Mark Bressler, the DOJ attorney present for the hearing.
“Are you suggesting the number of pages of each document is classified?” asked the judge. “What’s been provided is: ‘200 documents consisting of 799 pages.’ That doesn’t tell me anything. It doesn’t tell the public anything. It was never explained to me how something as basic as a list with page numbers could, in any way, shape, or form, be contrary to the interests of the government.”
“Mr. Bradley has sworn, under penalty of perjury, that to say more would tend to reveal classified information,” said Bressler. “A wealth of information is available for in camera review.” Information like page numbers and timing of documents “may be put together by targets of investigation, or adversaries of the United States,” he said.
Once your life is inside a federal investigation, there is no space outside of it. The only private thing is your thoughts, and even they don’t feel safe anymore. Every word you speak or write can be used, manipulated, or played like a card against your future and the future of those you love. There are no neutral parties, no sources of unimpeachable wisdom and trust.
The lawyers tell you: take no notes.
The lawyers tell you: talk to no one.
It is the loneliest of lonely things to be surrounded by your loved ones, in danger, and forced to be silent.
May you never experience a Federal investigation. I did, and it consumed me, and changed everyday that will come after it for the rest of my life.