While I like the Liberal radio ads ... the gender discriminatory one needs to go

Just as I decided I was going to recharge my blogger batteries for a few days while in the mountains, I caught one of the new Liberal radio ads in the car.

This ad went sort of like this ..."Many single parent families live in poverty and eighty percent of single parent families are led by women. While Stephen Harper does nothing, what more would Stephane Dion do about this?..." or something like that.

I appreciate the Leader's office trying to put distance between Stephen Harper's performance on social policy compared to Stephane Dion's vision. I also appreciate these ads seek to court the women's vote.

What I don't appreciate is the fact that the Liberal party's strategists are choosing to continue to use stereotypes about matters of the family inappropriately, much like they did during Mr. Chrétien’s and Mr. Martin's terms as prime minister.

Once and for all, all issues are people issues. When gender is used as a distinguishing feature, there is an increasing possibility that any issue might violate the Charter of Rights and Freedoms when considered carefully. Why touch it?

For example, rightly or wrongly (and in spite of the Charter), gender is still single most important factor used by judges to determine which parent can have custody of their children and which parent cannot, barring extraordinary circumstances. This is also in spite of tragedies involving children that show that some parents to be unfit, in spite of their gender.

This failure to consider that gender discrimination against men in Canadian family courts (not indifference or belligerence by parents of the male variety) is why 80% of single parent families are led by mothers.

Perhaps those trying to differentiate Dion and the new Liberal party from Harper's Conservatives should come up with a new angle on matters of the family that does not habitually violate the Charter of Right's and Freedoms pending interpretive spin that makes "the best interests of children congruent with the preferences of the mother". This is a poorly considered genderalisation that may give credence to gender biased judicial decisions on the surface, but also dangerously makes gender preferences by judges trump basic human rights. And, I dare to say, much to my chagrin, that many judges who most blatantly allow gender to dictate who can be with their children and who cannot are Liberal appointees.

Perhaps those responsible could refrain from putting out the same old garbage with respect to family policy that continues to haunt the legacies of M. Chrétien and Mr. Martin. This is at least the case in the eyes of Liberals who believe in fairness and equality, many of whom happen to be Liberal children of divorce, men, women, second families and children of second families.

I am certain M. Dion is not aware of how this ad could offend many Liberals, especially since he made a point of committing to putting all Liberal policy through "gender sensitive" filter as a part of his policy to increase female representation in the House of Commons. This also must apply to policies that may negatively affect men.

Bad policy is bad policy, and the Party is fortunate to have navigated through its poor record on the issue so far. Those positioning this should be more careful not to bring back this tainted baggage.

Judges ... more proof we all put our pants on one leg at a time.

I read this article on the CBC site. It describes both an (ex) judge and prosecutor in Colorado who have shown themselves to be human, rather than the absolutely benevolent persons the system relies on them being given existing accountability structures (or an absence of adequate accountability structures)

Since jurisdictions south of the boarder make lawyers judges in a slightly different way than in Canada, I take from this that improvements in how judges are chosen and are held accountable is a more universal phenomenon.

Déjà vu ...odd timing and reason for fraud charges against a Liberal in Niagara.

I was as shocked as anyone to hear about the charges against James Curran. The Niagara Falls review (and CTV.ca) reports today that fellow Liberal Jim Curran has withdrawn from seeking the federal Liberal nomination in Niagara Falls because of the charge of “cheque kiting”. This is apparently the practice of writing a cheque from one bank account to cover off another cheque from another bank account. There is a law against this.

To offer the benefit of the doubt for a minute to Curran, a fellow blogger, (who is quoted as expecting to be fully vindicated in this matter), business people who do deals especially in real estate need to juggle monies between accounts all the time. If the timing of the clearance of one cheque does not match the other, a mistake or simple misfortune could be construed as “cheque-kiting”, especially if there are those who want to interpret it that way. The level of deliberateness would make this either fraud or not.

Whether there is any merit in these charges, it is too early to tell. However, it is clear the timing of these charges is particularly bad – or good – depending upon one’s political stripes. Healthy skeptics might see a parallel with the timing of these charges (following an alleged two month investigation) and last year’s RCMP investigation into alleged leaks by Liberal government officials into rule changes for income trusts during the last federal election. Although any connection between these leaks and any Liberal government officials were disproved shortly thereafter, the publicity created by an RCMP investigation during an election campaign seemed to break the “stalemate” in the polls between the Liberals and the Conservatives that had existed since day one of the campaign to the favour of the Conservatives.

When all Liberal government officials were exonerated earlier this year, there were questions about whether the Conservative Party’s “Law and Order” agenda played any part in the decision to investigate such a thing during a federal election. The RCMP and its senior officials have been under fire for other matters ever since.

In the case of Jim Curran, the dynamics are both similar and different at the same time. The police force involved in his investigation is the Niagara Regional Police. Politically, who benefits from the removal of a Liberal threat in the federal riding of Niagara? It is pretty clear that the primary beneficiary is current Conservative MP, Justice Minister and Attorney General, Rob Nicholson. And, the Conservatives took the opportunity to try to use this against the Liberals in Question Period today. Rightly or wrongly, Minister Nicholson needs not worry quite as much about retaining his riding in Niagara in the next election today - as much as he did yesterday – given that his biggest political threat has been neutralized. And, the CPC is trying to milk this too as a tactic or perhaps a distraction from them falling in the polls as of yesterday.

Like the “income trust” investigation during the last election, I find it amazing how convenient this whole thing is for Nicholson and the Conservative Party. And, as a secondary benefit, perhaps this also takes the heat off Michael Fortier’s personal $400 million scandal as Public Works Minister a little bit. I look forward to reading the results of a fair and balanced investigation, even though I lament that Jim Curran’s political career is in jeopardy as a by-product in the meantime. Que bono?

2/3 of Canadians want elected judges: judiciary/lawyers call it a bad idea.

I read earlier today the results of a Strategic Counsel poll suggesting that 2/3 of Canadians favour elected judges. It did not surprise me that both Canada's legal industry and the judiciary immediately came out with reasons as to why this is a very bad idea.

The Globe and Mail reports that Ontario Chief Justice Roy McMurtry said in an interview that he couldn't see how impartiality could be maintained in a system of elected judges: “it could really destroy the very best traditions of an independent judiciary. I think it would be a tragic initiative for the administration of justice.”

I also read Devin's blog today from the roll ... should I be surprised (since we agree to disagree on this subject) that he would support Chief Justice McMurtry's angle by posting the blog title: "Keep Justice Blind"?

.

Even the Conservative Party has stopped calling for elected judges now that they are in power, in spite of its previous concerns about the power of judges in Canada. Former federal justice minister Vic Toews said last year: “That's just not our tradition…I actually think our system is pretty good. It just needs to be fixed.” This is very convenient for a party led by a man whose private objective is no less than reforming the ideology of Canadians via massive decentralisation and institutionalised conservatism.

I find it alarming that those with the most to lose from judicial reform frame this sign of discontent by Canadians with our (arguably) unaccountable system of judicial appointments in such a narrow/fear based manner. Would anyone expect lawyers and judges to say anything against the "love in" between lawyers and judges? Among other things, our current system acts as if judicial appointees are like Plato’s Guardians and beyond self-interest. Our judges are appointed by the political party in power, they are appointed for life and they are not accountable to anyone. The only way to remove a judge from the bench is with the agreement of the Governor General, Parliament and the Senate and this has never been attempted. Does this not sound like a blank cheque?

Furthermore, this unprecedented power gives Supreme Court Justices in particular in essence a "veto" as strong or stronger than the notwithstanding clause on matters of Canadian public policy via strategic jurisprudence. When the by-product of specific jurisprudence can provides a marked boost to revenues collectable by the legal industry, there is reason for concern. After all, our judges all began their careers as lawyers and have been known to make controversial decisions that benefit their “brethren“ sometimes more obviously than others.

As a means of demonstrating just how “on the mark” are the instincts of many Canadians on this topic - who know there is a problem with a lack of accountability but do not know exactly what is the solution - I republish gender the discrimination ratings of 22 Ontario Court of Appeal Justices over 10 years (1996-2006). More than 800 cases were reviewed to determine the results. The methodology of the study is explained here and here:

.

D = % Female Wins - % Male Wins, Discrimination count, Category (or extent gender was a factor in judicial decisions on matters pertaining to the family)

.

For Abella JA D = 76.5 - 6.4 = 70.1 % (heavy)

For Feldman JA D = 72.7 - 13.3 = 59.4 % (heavy/high)

For Charron JA D = 70.0 - 7.4 = 62.6 % (heavy)

For Simmons JA D = 80.0 - 23.8 = 56.2 % (high)

For Lang JA D = 50.0 - 0 = 50.0 % (high)

For Wheiler JA D = 77.8 - 26.1 = 51.7 % (high)

For McMurtry CJO D = 69.9 - 40.0 = 29.1 % (moderate/high)

For O’Connor DCJO D= 80.0 - 30.0 = 50.0 % (high)

For Goudge JA D = 77.8 - 39.1 = 38.7% (high)

For Borins JA D = 70.0 - 27.3 = 42.7 % (high)

For Rosenburg JA D = 71.4 - 33.3 = 38.1 % (high)

For Armstrong JA D = 66.7 - 26.3 = 40.4 % (high)

For Moldaver JA D = 52.6 - 6.7 = 45.9 % (high)

For Macpherson JA D = 62.5 - 14.3 = 48.2 % (high)

For Gillese JA D = 85.7 - 50.0 = 35.7 % (high)

For Juriasz JA D = 60.0 - 0.0 = 60.0 % (high/heavy)

For Blair JA D = 50.0 - 9.1 = 41.9 % (high)

For Cronk JA D = 66.7 - 42.1 = 24.6 % (moderate)

For Sharpe JA D = 33.3 - 11.7 = 21.3 % (moderate)

For Catzman JA D = 63.6 - 43.7 = 19.9 % (moderate)

For Labrosse JA D = 61.5 - 45.0 = 16.5 % (moderate)

For Laskin JA D = 55.5 - 47.0 = 8.5 % (slight)

.
The data show that Justice McMurtry himself was rated as favouring female litigants close to one-third of the time more often than male litigants on matters pertaining to the family.
.
That is neither here nor there. What is of most concern here? The two worst offenders according to the study,- Rosalie Abella and Louise Charron - now sit on the Supreme Court of Canada. Because of the current structure, does this not mean that Justice Abella and Justice Charron are two of the most powerful Canadians when it comes to shaping our public policy? ... stronger than Parliament both collectively and individually?
.
It seems Canadians are perhaps "right on the mark" when it comes to our being uncomfortable - sniffing out - matters that lack sufficient accountability, such as this. After all, would any of us really buy the argument that any of our Justices have "philosopher-king" like attributes that makes accountability unnecessary? Or, would anyone dare say the adversary system, rules and procedure keeps judicial decision making perfectly in check?

.

Canadians know there are problems with the current system of judicial appointments. If a poll is worded so that Canadians understand "elected" to be perfectly congruent with "accountable", the framing of this proposed solution by Justice McMurtry, Devin and Vic Toews as having similar baggage to that of the American system sounds like spin to me. There are many ways to make our judiciary more accountable without any drastic risks. It just takes political will and courage to stand up to those who benefit from the status quo.