[BRIEF NOTE] Is Marc Nadon Canada's Harriet Miers?

Marc Nadon was nominated to the Supreme Court of Canada as one of three judges from Québec of the total of nine serving on the court. His nomination was rejected on the grounds that, among other things, he hadn't served as a lawyer in Québec for long enough.

Carissima Mathen at the Ottawa Citizen noted the background.

Nadon’s appointment was made under section 6 of the Supreme Court Act, which reserves three of the Court’s nine seats for Quebec (which, unlike other Canadian provinces, has a civil law tradition). Candidates must be either judges on Quebec courts, or members of its bar with 10 years standing. At the time of his appointment, Nadon was neither: he sat on the Federal Court of Appeal, and had not been a member of the bar for years.

The federal government insisted that Nadon was nonetheless eligible. It pointed out that previous Supreme Court justices have been appointed from the Federal Court; and it argued that there is no meaningful difference between past and present bar membership. It had in hand an opinion from a former justice, Ian Binnie, giving it the “all clear.” It even, brazenly, attached two clauses to the Budget Implementation Bill to “declare” that the Supreme Court Act should be interpreted to permit Nadon’s appointment.

Nadon’s stalled candidacy created headaches for the Court, which has been operating without its full judicial complement for months now. It faced considerable pressure to resolve the issue.

Remarkably, none of that seemed to matter. In a 6 to 1 ruling, the Court confirmed what Professor Michael Plaxton and I argued in a 2013 article: section 6 exists not just to ensure technical expertise in civil law, but to maintain Quebec’s confidence in the Court. To hold otherwise would be to “rewrite history.” The Court emphasized that past bar membership is sufficient for the non-Quebec seats (thereby confirming the validity of past Federal Court appointees). But it isn’t enough for Quebec; and it wasn’t enough for Nadon.

This was welcomed in Québec. It was also welcomed by the opposition, as CBC noted.

In a six-to-one decision, Canada's highest court deemed Nadon to be unqualified to sit among them as a Quebec member, and that the changes the government made to the Supreme Court Act (which would have allowed him to sit) were actually unconstitutional.

New Democrat justice critic Françoise Boivin said she was happy with the court's ruling and took aim at the fact that the government passed those changes to the law through an omnibus budget bill. She said she still hasn't digested that two little articles were passed that had the capacity to review historical positions in naming judges.

"Honestly, it's insulting," she said.

"I'm not just saying for Quebec. It's insulting for lawyers, it's insulting for the justice and it's especially insulting for that great institution that is the Supreme Court of Canada," she said.

The matter of constitutionality is a sticking point for retired judge John Gomery, who said the appointment was bad in the first place because Nadon doesn't have the expertise to serve on the court.

"It must be a profound embarrassment for the government," he said in an interview on CBC Radio's The House. "They made what has turned out to be a bad and illegal and unconstitutional appointment and it has sort of exploded in their face."

This occurs in the background of the recent departure of Jim Flaherty as finance minister.

Is anyone reminded of the Harriet Miers in the United States, centering on a White House lawyer nominated by Bush to the United States Supreme Court in 2005 despite lacking key qualifications who was eventually rejected?

[PHOTO] Low tide at Camp Buchan, Belfast, Prince Edward Island (2)

[BLOG] Some Wednesday links

• The Broadside Blog's Caitlin Kelly makes a case about the benefits of radical honesty.


• At the Buffer, Belle Beth Cooper describes how she has streamlined her writing style.


• The Dragon's Tales notes that China's space station isn't doing much.


• Eastern Approaches observes the continuing popularity of Polish populist Lech Kaczynski.


• The Financial Times' The World blog notes the vulnerable popularity of UKIP's Nigel Farage.


• Geocurrents' Asya Perelstvaig comments on the entry of Jewish businessman Vadim Rabinovich into the Ukrainian presidential contest.


• Joe. My. God. is unconvinced by the suggestion that marriage equality means the end of gay bars.


• Lawyers, Guns and Money's Erik Loomis speculates about the responsibility of American consumers for air pollution in exporting Asia.


• At the Planetary Society Blog, Constantine Tsang describes evidence for volcanism on Venus.


• Savage Minds interviews one Laura Forlano on the intersections between anthropology and design.


• Towleroad mourns the death of godfather of house music Frankie Knuckles.

[LINK] "Humane Society rescues lobster — yes, really"

The Toronto Star carried Nicole MacIntyre's Hamilton Spectator article reporting on a lobster's rescue from a St. Catherines parking lot.

(Myself, the idea of repatriating the lobster to the east coast makes some sense.)

The Lincoln County Humane Society is looking for a new home for a lobster — affectionately named Mickey — that was abandoned in a St. Catharines parking lot.

“No, it’s not a joke,” said executive director Kevin Strooband.

The society received a call Wednesday morning about a lobster that was found inside a box in a business parking lot off of St. David’s Road. An inspector responded, as the society does with all calls of animals in danger, and picked up the lonely crustacean that was likely bought at a grocery store.

The next stop was to buy a salt water tank, where Mickey is now happily bobbing.

Strooband suspects the lobster, whose claws were not banded, was likely part of an April fools prank, but he said that’s no way to treat a living thing. Now the humane society will ensure that Mickey find a safe place to live out his days, said Strooband. That means no pot or butter.

[LINK] "Here's what Mexico City is teaching the rest of Latin America about gay marriage"

Via Towleroad I came across Dudley Althaus' Global Post article arguing that the progress of gay rights in Mexico is influencing Latin America more generally.

I'm hesitant about this argument, not least since South American countries--notably but not only Argentina and Uruguay--have seen equal or even greater shifts towards equality than Mexico, and seem from my very limited knowledge to have done so independently of Mexico. That said, Althaus does seem to have gotten the general liberalization of Mexican society done. (Noel Maurer?)

In Mexico’s modernizing capital, the word these days seems to be “keep calm, and marry on,” a nonchalance toward gay marriage that’s slowly catching on across Latin America.

Pushing that message, Mayor Miguel Angel Mancera stood witness recently to the mass wedding of 58 lesbian and gay couples, who said their vows in unison.

"This is one more event in ... the city of freedoms,” Mancera, who presided over a similar ceremony in July, told the 74 women and 42 men taking the plunge. Mexico's capital is “a city that is concerned about and working on moving ahead,” he said.

The latest gay nuptials took place at a museum just blocks from Mexico City’s central plaza — and from the cathedral pulpit of Cardinal Norberto Rivera, who has railed against gay unions as “perverse” affronts to Mexican families and the “divine project.”

But this city’s left-leaning government has been poking the eyes of Catholic leaders and other cultural conservatives for more than a decade now. Promoting diversity — sexual, political, religious — is official policy here. The Mexican capital in many ways has set the pace of social change across Mexico and the region.

[LINK] "The Scientific Quest to Prove Bisexuality Exists"

Benoit Denizet-Lewis' recent article in The New York Times is one I quite liked. Besides touching on the science and psychology of sexual orientations including bisexuality, he also manages to effectively communicate the stigma still felt.

(I default to gay now if people ask. It's easier, and requires rather less convincing.)

“Let me tell you a story,” [activist Brad S. Kane] said, recalling the time he represented a heterosexual woman in a case against gay neighbors who were trying to have her dog put down. “People would say, ‘You’re gay — why aren’t you helping the gay couple?’ I’d say, ‘Because I always side with the underdog.’ The poor dog was in animal prison at animal control, with nobody to advocate for it. The dog needed help, needed a voice.” He paused and caught my eye in the rearview mirror. “You’re probably wondering where this is going and whether I’ll shut up anytime soon.”

“I know I am,” said Ian Lawrence, a slender and youthful 40-year-old [American Institute of Bisexuality] board member in the passenger seat.

“Well, bisexual people are kind of like that dog,” Kane said. “They’re misunderstood. They’re ignored. They’re mocked. Even within the gay community, I can’t tell you how many people have told me, ‘Oh, I wouldn’t date a bisexual.’ Or, ‘Bisexuals aren’t real.’ There’s this idea, especially among gay men, that guys who say they’re bisexual are lying, on their way to being gay, or just kind of unserious and unfocused.”

Lawrence, who struggled in college to understand and accept his bisexuality, nodded and recalled a date he went on with a gay television personality. When Lawrence said that he was bisexual, the man looked at him with a pained face and muttered: “Oh, I wish you’d told me that before. I thought this was a real date.”

Hoping to offer bisexuals a supportive community in 2010, Lawrence became the head organizer for amBi, a bisexual social group in Los Angeles. “All kinds of people show up to our events,” he told me. “There are older bi folks, kids who say they ‘don’t need any labels,’ transgender people — because many trans people also identify as bi. At our events, people can be themselves. They can be out.”

[URBAN NOTE] "Public Works: Reconsidering the Town Square"

Torontoist's Peter Goffin makes the case that Toronto has much to learn from Washington D.C. in the use of parks and public space, specifically in having a lot of public space that isn't necessarily accessible.

In 2012, architecture, planning, and design firm Gensler launched “The Town Square Initiative,” a challenge to its designers to “unearth and re-imagine” public space in major cities around the world. Hypothetical designs were thought up for Shanghai, Tokyo, New York, Chicago, and many more. But perhaps the one most applicable to Toronto was devised for Washington, D.C.

In tourism pamphlets and establishing shots for House of Cards, it’s clear Washington has a lot of great public space. The iconic National Mall alone is over three kilometres of public square. Why, they could probably fit, like, a million people there. The city’s grid, designed in the 1790s, is famous for its wagon-wheel configuration. Roads angle out like spokes from circular centres, creating a bevy of small, round, or triangular plots of land, many of which have been put to use as public space.

But, as D.C. has developed from a modest government town into the heart of a thriving greater metropolitan area that is a home to 5.8 million people, the centralized spaces that have served the city for centuries have become less accessible to a large number of residents. The Washington Post declared the National Mall too big to serve as a proper community space. One assumes it might be overly touristy, too. How much community-building can take place in a spot where half the people are just trying to find the Air and Space Museum? And, as for the vaunted 18th-century city grid, it “disintegrates along the city’s southern borders, where it collides with the Anacostia and Potomac rivers,” Gensler’s Carolyn Sponza writes. That means none of the neat colonial-planned public space for Washingtonians outside the city’s core.

Toronto has had a similarly difficult relationship with major public space. Ninety years ago, University Avenue was slated to be our landmark, our National Mall. That dream died with the start of the Depression.

[URBAN NOTE] "Crude awakening"

NOW Toronto's Cynthia McQueen writes about how the stretch of railroad in midtown Toronto--a stretch that roughly parallels Dupont Street and runs just behind my home, actually--is being used to transport processed oil. The potential for catastrophe is obvious, although I can say that going through my neighbourhood the trains move slowly, at least.

Ken Brown has lived near the Canadian Pacific stretch of tracks between Avenue and Yonge for 42 years.

Since the 72-railcar explosion in Lac-Mégantic, Quebec, that killed 47 people last summer, he’s noticed something unnerving: an increase in DOT-111 tankers carrying oil through the neighbourhood. In fact, those railcars that derailed in Lac-Mégantic, carrying highly volatile Bakken oil from North Dakota, came through Toronto en route to that disaster.

Brown has counted at least two trainloads of oil with 100 cars each passing through Toronto every day.

[. . .]

Keith Stewart, a climate and energy specialist with Greenpeace, sees security concerns as “largely manufactured to decrease transparency.”

The difficulty with rail, he says, is that constitutionally it was “granted all these extraordinary powers because at that time building the rail lines was about constructing the country, and so right now they’re still almost completely impervious to outside regulation apart from the federal government.”

Stewart, too, has noticed an increase in DOT-111 tanker traffic on the CP tracks running through his Dupont-and-Dufferin neighbourhood in the last five years.

“There’s been a huge increase, and that’s been done with no oversight,” he says. “All you have to do is watch the train tracks. If you see the cars are DOT-111 tankers, you know they’re filled with oil.”

For 20 years, the TSB has commented on the vulnerability of DOT-111s because of their thin hulls, among other things. But a phase-out plan currently under way means they’ll be in use for another 10 years.

[URBAN NOTE] "What Dovercourt Road used to look like in Toronto"

blogTO's Derek Flack has a has a nice collection of maps and century-old photographs concerning Dovercourt Road, the north-south road of note in my west-end neighbourhood.

Dovercourt Road takes its name from the once-prominent Denison family, whose land holdings included a stretch of the street. Neither a main thoroughfare nor a sleepy residential enclave, there's something quintessentially Toronto about Dovercourt. At various points in its history, the street seemed on the brink of becoming more developed, particularly when it was home to a streetcar route, but aside from little hubs of activity at main intersections (notably Queen, Argyle, College, Bloor and Hallam), it never really happened en masse.

To the north, Dovercourt was originally home to poor English migrants who lived in shack-like structures spread around what is now Dupont. As industry developed on that street and along Geary Avenue (formerly Main Street) around the turn of the 20th century, Dovercourt Park became a bonafide neighbourhood, the heart of which was located at the intersection of Hallam. Surprisingly, both streets were served by streetcars at the time, and there was arguably even more traffic at the intersection in the 1920s than there is today.

Dovercourt and Argyle, once home to the Ideal Bread Company (now a rather nice condo), also feels like a mini-hub thanks in part to the presence of Luna Cafe. Ditto for the intersection at Foxley, which is home to Julie's Cuban and one of those classic residential Toronto variety stores. I've always liked this stretch of the street for the degree that it speaks to an older version of the city, one in which corner stores and lunch counters could be found scattered in neighbourhoods off main streets.

If there's a stretch of Dovercourt that's been preserved the most over the years, it's to be found between College and Bloor, where stately homes are set back from the road and look pretty much the same as they did in the 1950s (see photo below). It's a shame not to have an old picture of the Matador to share here, but the latest iteration of 466 Dovercourt will retain the iconic sign, so there's no need to get too mournful.

[PHOTO] Looking south on Dovercourt towards Bloor, 1 April 2014

I took this photo last night at 7:40 or so. I love that it's so bright so late now.

Spring will be glorious.

[LINK] Two new developments in the Dziekański taser incident

I've been following what Wikipedia calls the Robert Dziekański Taser incident for some time. In 2007, the forty-year-old Polish immigrant Dziekański was tasered to death in Vancouver International Airport when he encountered four officers of the Royal Canadian Mounted Police, people who not only didn't follow protocols but appear to have engaged in a coverup, including the attempted suppression of video of their altercation. Subsequent posts I made, in 2009 and 2010 and 2011, touched upon the discrediting of the police.

One news item in the middle of March highlighted the upcoming trial of one of these officers for perjury.

A B.C. Supreme court justice has denied Const. Kwesi Millington's application to dismiss a perjury charge alleging he lied about the death of Robert Dziekanski to the Braidwood Inquiry.

The Braidwood Inquiry was convened to investigate how Dziekanski died after being stunned several times by RCMP Tasers in the arrivals lounge of Vancouver International Airport in 2007.

[. . .]

His lawyer, Ravi Hira, had argued one of the charges should be stayed. The charge in question alleges Millington lied at the inquiry when he said he never discussed the incident with his partners before giving his statement to investigators.

Hira told the court the issue of collusion had already been rejected by a judge last year when he acquitted Millington's partner, Bill Bentley, on a similar allegation.

Hira argued that prosecuting Millington for collusion would essentially amount to a retrial of a charge that had already been dismissed.

But special prosecutor Eric Gottardi told the court the two officers are not the same accused, and the evidence against each is significantly different.

B.C. Supreme Court Justice William Ehrcke agreed and dismissed Millington's application. The trial has been adjourned to Oct. 31.

Just a couple of days ago, the officers' lawyers have made allegations of witness tampering on the part of the RCMP as it gatherrs evidence.

An RCMP constable and a former Mountie charged with perjury for their testimony at the Braidwood inquiry have lodged complaints with B.C.'s civilian police watchdog.

The complaints by Const. Gerry Rundel and retired corporal Monty Robinson mark the first time any of the officers involved in Robert Dziekanski's death in 2007 have attempted to defend themselves outside of the grindingly slow prosecutions against them.

[. . .]

Documents showed that last September Vancouver police officers opened an investigation into a claim that all four Mounties involved in the Taser-related death of Dziekanski met secretly before testifying at the inquiry into what happened.

Const. Gerry Rundel is one of four RCMP officers accused of lying during the testimony given during the public inquiry into Robert Dziekanski's death. (CBC)

At the Braidwood inquiry, which was convened to investigate how Dziekanski died after being stunned with a police Taser several times, the officers all testified they had not discussed the incident with each other.

Last August. Janice Norgard told police and the special prosecutor the four had met at her house in Richmond, B.C., in January or February 2009.

Norgard came forward after reading that one of the officers, Const. Bill Bentley, had been acquitted of perjury.

She alleged the 2009 meeting had been arranged by her ex-common-law partner, Brian Dietrich, who is Bentley's cousin.

But in Robinson's complaint to the OPCC, the former Mountie alleges the Vancouver police detectives who looked into Norgard's claim made multiple mistakes.

"The rules of evidence and the collection of evidence have been ignored in this case," Robinson wrote in the complaint obtained by CBC News.

Canada has nothing to be proud of with any bit of this sad affair.