The Power of Perspectives

The Canadian Bar Association

Kim Covert

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You need to know this

By Kim Covert September 17, 2013 17 September 2013

Next week is Right-to-Know week – bet you didn’t know that.

It doesn’t get the same kind of media attention as, say, National Volunteer Week, or National Non-Smoking Week, or even National Dance Week, but the erosion of access to information is a problem that should concern all of us.

Canada’s Access to Information law turned 30 years old this year, and the country’s information watchdog believes it’s starting to show some wear.

Access to Information Commissioner Suzanne Legault says the law is “tired, outdated and constricted by too many limitations.”

The law doesn’t address, for example, the shift from paper to electronic communications; and she says that the greater number and intricacy of government departments and agencies makes everything more complicated now than it was in 1983.

Legault warns that budget cuts place even more stress on the system – she attributes a sharp rise in the number of complaints about delays in processing requests at least in part to reduced staff levels. In one week this month she received 80 complaints, a record in her four-year tenure.

In fact, Legault told Global News recently that the RCMP has “completely stopped responding” to access requests from the public – and also failed to respond to her office when it asked what was going on.

Any Canadian with the $5 fee and the patience to fill out the forms can ask their governments for any information they want. The government doesn’t have to give it up – there are always exceptions, for example, in cases of national security, or ongoing investigations. Departments and agencies are legally required to acknowledge receipt and respond to the request within 30 days.

People can complain to Legault’s office when that doesn’t happen, but the Commissioner cannot force departments to comply with the law.

Given that most Canadians will never file an Access request, this sounds like an Ottawa bubble problem, a whiny media response to Prime Minister Stephen Harper’s tight-fisted control of his government’s message.

But it’s not just a federal government problem – an audit conducted for Newspapers Canada last year gave most jurisdictions merely mediocre marks.

And Harper himself has championed the values of transparency and accountability in government.

Here are some of the things we’ve learned recently thanks to Access to Information requests:

  • The RCMP hid the fact that it had estimated the cost of destroying the federal gun registry at $1-million;

  • Canada is going ahead with a programming facility for F-15 fighter jets though it hasn’t made the final decision to buy the planes;

  • Access to Information requests revealed the strange lack of a paper trail in the Mike Duffy affair.

Kevin Page, the government-appointed former Parliamentary Budget Officer, took the government to court to force it to hand over information about budget cuts. He says MPs aren’t being given the information they need to do their jobs properly.

As voters, it’s our job to make informed decisions at election time. A strong, well-enforced Access to Information law helps make our jobs possible.

So start exercising your right to know. These issues will be up for discussion at the CBA’s 4th Annual Access to Information and Privacy Symposium, Sept. 27-28 in Ottawa, which will cap off Right-to-Know Week. Ask questions, make sure the media outlets you rely on, or your MPs, are asking them – and let government agencies and departments know you expect answers. Be aware, be informed.

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Data isn't always information

By Kim Covert September 13, 2013 13 September 2013

The latest National Household Survey of income and housing costs has lots of information, but unfortunately little of it usable.

It can’t be compared to previous years’ surveys because it’s voluntary, so we don’t know whether the findings represent a change in the circumstances of the people responding; a blip; or the result of different people answering the questions and thus providing a different result – or the same result for different reasons.

“Has the poverty rate increased or decreased? Who knows? As a voluntary survey, the NHS is likely to under-represent those with low incomes and several minority groups,” Tammy Schirle, economics professor at Wilfrid Laurier University, told the Globe and Mail. “Without census data as a comparison point it is difficult to determine the extent to which the statistics are biased.”

Without reliable data, it’s impossible to say with any degree of certainty where the greatest need would be for income transfers for things such as legal aid, or the other supports that help people navigate, or keep clear of, the justice system.

The median individual income in Canada is $27,800, meaning half of the population earns more and half earns less. The median family income is $76,000. A family of four living in a mid-size town is considered low-income with annual wages of $30,945.

The top one per cent earn more than $191,000 a year, which is not a lot in, say, movie-star or pro-athlete terms, but is still nearly seven times the median Canadian income.

And that’s not the full story.

The top one per cent in this picture is overwhelmingly white and male, while those in the lower-income groups are mostly visible minorities, who tend to be clustered in Toronto, Montreal and Vancouver. The highest median family income – $186,782 – is to be had in the Alberta oilsands.

The national median income for a full-time employee is $50,699, unless that person is a visible minority – in which case the median is $45,128 – or aboriginal, in which case the median is $41,684.

While the survey suggests that second-generation immigrants are faring better than their parents did, it looks like Canada still has a sizeable diversity gap. In a time when evidence consistently shows that inclusive practices and a diverse population – whether it be in the neighbourhood, in the law firm or in the boardroom – actually make for a more successful organization, you have to wonder what we could accomplish as a country if we were able to balance out the makeup of that one per cent – and turn into 10 or 20 per cent or more.

And then had reliable numbers to prove it.

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Rape culture thrives in cold climate

By Kim Covert September 10, 2013 10 September 2013

On Tuesday, four men were convicted in the gang rape and murder of a young girl in India last December.

The brutality of the crime shook the world. The men – their numbers including a youth who has been jailed for the maximum allowable three years, and another man who hanged himself in his jail cell – lured the victim and her boyfriend onto a bus, then raped and tortured her before throwing the two onto the street.

India isn’t known for its protection of women’s rights in general, and physical abuse is common – a rape is reported every 21 minutes.

But North Americans shouldn’t be feeling smug here – their own record tops the global charts, according to the UN.

The term “rape culture” has become part of the idiom in the wake not just of the horrific rape and murder in India, but also the rape – and subsequent public shaming via social media – of a girl in Steubenville, Ohio, by members of a local school’s beloved football team. That was followed in Nova Scotia by the suicide death of Rehtaeh Parsons, who said she’d been raped at a party and then bullied about it at school by students who’d taken pictures of the assault and shared them via social media.

The term popped up again this month when Frosh Week participants at Saint Mary’s University in Halifax were heard chanting a verse that appeared to celebrate non-consensual sex with underage girls, and later students at UBC's Sauder School of Business gave voice to the same chant.

In 1992, then-Justice Minister Kim Campbell oversaw the passage of Bill C-49, the so-called Rape Shield Law, which enshrined the concept that “no means no.” It also set out definitions of consent – for example, passivity doesn’t equal consent; neither does being too drunk to know or stop what’s happening.

But 21 years of no-means-no has failed to put an end to rape culture; despite the sexual empowerment of teenagers and young women over the last two decades, they continue to be the victims of a double-standard that sees them shamed when photos and videos of them being raped are shared on Facebook, while the rapist is hailed for… what? Being daring enough to rape an unconscious girl? Meanwhile police seem either powerless – or reluctant – to act even when presented with what appears to be fairly unequivocal digital evidence of a crime.

Twenty years ago, “take back the night” walks were common – women taking to the streets en masse to declare their right to feel safe from the dangers said to be lurking in dark places. These have been replaced in the last few years by “slut walks” – women taking to the streets en masse to declare their right to wear what they please where they please, and to have sex with whomever they please. Whatever you think of the name of the walk, or of the hypersexualization of culture that they represent, they are indeed the successors of the earlier protests, an expression of fearlessness and free will.

“We do not accept the premise,” they seem to say, “that our behaviour causes yours.”

Following from that, the idea that the anti-rape message could be refocused appears to have caused a bit of a sea change in rape culture.

The “Don’t Be That Guy” campaign, instead of exhorting women to make themselves less attractive to rapists, delivers pointed messages to potential rapists via posters in bars.

“Just because she isn’t saying no doesn’t mean she is saying yes,” one poster says. “Sex without consent = sexual assault. Don’t Be That Guy.”

Vancouver police credit the “Don’t be that guy” campaign launched in 2011 with lowering the sexual assault rate by 10 per cent that year.

Edmonton has had similar results with the campaign – though the fact that it gave rise to a parody campaign, “Don’t be that girl,” underscores how much further there is to go.

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Winning the legal popularity contest

By Kim Covert September 5, 2013 5 September 2013

The British government has just announced that as part of its efforts to trim £220 million from its £2-billion legal-aid bill – to help balance a federal budget still reeling from the recession and the measures taken to deal with the recession, and the measures taken to deal with the measures taken to deal with the recession – it will stop funding certain groups – foreigners, prisoners and the rich.

“Not everyone will be happy because change is never welcome, when it is a tough change like this and with a big financial element,”Justice Secretary Chris Grayling is quoted as telling The Times.

"But I hope the public will see (the package) as providing a sensible balance between saying 'no' to legal aid to people they really would not want to get it; and ensuring that anyone who is arrested and in a prison or police cell has access to a lawyer to defend them."

Saying “no” to people you wouldn’t want to get legal aid. So it’s a popularity contest, then?

Certainly some of the cuts won’t get much push-back. Grayling sets the bar for the rich at £37,500 a year in disposable income ($61,550 Cdn). People who earn $60,000 or less a year BEFORE taxes, housing and other necessities likely wouldn’t argue with putting a cap on access.

It might even make sense to limit foreigners’ access to civil legal aid to people who have been in the country for less than a year – until you consider, say, victims of human trafficking who are in the country through no fault of their own.

And prisoners will never win a popularity contest, especially the ones doing hard time for hard crimes.

There will no longer be legal aid for about 11,000 of the cases brought by prisoners each year.  There will be no more funding just “because you don’t like your prison,” Grayling says.

Lawyers are also losers in the popularity contest – their legal aid fees will drop by 17.5 per cent over two years.

Joanna Biggs wrote in the LRB Blog that lawyers themselves feel under attack – that if they stick up for clients who will be short-changed by the reforms, they’ll be accused of worrying about their own pocketbooks.

“Answering this charge by saying that most legal aid lawyers earn less than primary school teachers won’t exactly endear you to the primary school teachers you’ve impliedly devalued, nor anyone who earns even less than they do,” writes one commenter on the blog, who adds that the topic of legal aid cuts might make bigger headlines if it was the recipients of legal aid whose voices were being heard, instead of the lawyers.

“Hopefully that (would) help underscore the real issue: legal aid isn’t for lawyers, it’s for the clients who need them and (unless you’re a millionaire) you’ve got a higher chance than you might think of becoming one of those clients some day.”

Another respondent writes, “when parties don’t have that professional interlocutor, the system clogs up, sputters, slows and will eventually fail – to the extent it doesn’t transform into a mass-produced show of ‘justice.’”

Access to justice – or more precisely, the lack of it – is a topic everyone needs to be aware of. According to the CBA report Reaching equal justice: an invitation to envision and act, “every contact between an individual and the civil justice system is an opportunity for either disempowerment or empowerment, a moment to reinforce inequality and social exclusion or to create equality and inclusion.”

Justice shouldn’t just be for the people you like.

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Jus ad bellum

By Kim Covert September 4, 2013 4 September 2013

In the face of the numbers, debating morality, constitutionality or legality seems petty, pedantic and beside the point.

More than two million people have fled Syria, and another 4.25 million have been displaced since conflict there began in March 2011, the UN refugee agency says – a tenfold increase from a year ago.

The Syrian Observatory for Human Rights has documented the deaths of more than 100,000 people, but fears the death toll so far could be more than twice that.

Allegations that the Assad regime used chemical weapons against its own people only add to the horror.

International condemnation of chemical weapons is what brings us, however, to the brink of a decision on whether to intervene.

Foreign Affairs Minister John Baird has downplayed the possibility of any military role for Canada in Syria, but says we remain in “lockstep” with our allies.

If only our allies were in lockstep.

France appears to be raring to go, but in the U.K., Parliament voted against military intervention. In the U.S., President Barack Obama has backed off some earlier aggressive statements, and is seeking authorization from Congress. Russia warns the West against taking unilateral action, but has said it could support a UN resolution to use military force if it sees proof that Syria used chemical weapons on its people.

UN Secretary-General Ban Ki-Moon has pleaded for a political solution, and for arms inspectors to be given time to conclude their work.

Remember, the voices say, the last time the U.S. was convinced a country had weapons of mass destruction? Did the war in Iraq really resolve anything? How about Afghanistan? Other voices say we’ve stood by and watched governments make war on their people before – in Sudan, for example; and the shame of our failure to help them, or the people of Rwanda, remains a stain on our national – and international – character.

The hawks say we’ve got all this military capability, what’s it for if we don’t use it when using it will do some good? And the doves respond that using it just creates more war, more instability.

That there is no clear path to follow, that every argument has an equal and opposite argument, is immensely frustrating. And it seems wrong to debate fine points of philosophy when people are dying, or fleeing for their lives. So sorry you’ve lost everything, but we weren’t sure whether intervention would meet all the requirements of a just war.

Just war theory has been an over-arching principle for centuries, a tradition that has become international law. It’s how we do business, or how we’re supposed to do business. There are six requirements that must be fulfilled for a war to be considered just: just cause; right intention; proper authority and public declaration; last resort; probability of success; proportionality.

So we can argue whether the cause – intervening when a government makes war on its own people – is just; but our intentions would no doubt be good. Proper authority is easy enough to ascertain – each government has a procedure for approving military action – though the legality of that action under international law might be up for question. Where our argument lags is in the last three requirements: would going to war now truly be the last resort? Ban Ki-Moon would beg to differ. How do we measure the proportionality of the response? What is the proportionate response when a country attacks its own citizens with chemical weapons?

Probability of success is the true stumbling block, however. In the past decade alone we’ve had ample evidence that taking out even an illegitimate government can cause the kind of destabilization that puts a country’s citizens in even more peril. Did Libya benefit from intervention? Did Afghanistan?

Our moral imperative to help a victim is at vicious war with our moral imperative not to intervene where intervention could exacerbate a problem.

There is no easy answer – and no silver bullet. So maybe best not to go in with guns blazing. But what does a diplomatic solution look like?

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