A Liberal bait-and-switch

Kelly McParland on the Trudeau government denying summer job grant money to organizations opposed to abortion:

The Liberals, in their determination to force their abortion views on those who may disagree, say organizations applying for grants to hire summer students must attest that their core mandate is in line with the government’s position on “reproductive rights.” They have to check off a box confirming their acquiescence, and can’t submit the application unless they do. In other words, any organization that has qualms about Canada’s lack of an abortion law, or the Trudeau government’s whole-hearted support for unfettered abortion at any stage of the birth process, need not apply.

[…]

Neither Trudeau or [employment minister Patty] Hajdu appear to understand that there is no wording in the Charter that offers a constitutional right to abortion. Nor is there anything in the law, since there is no abortion law in Canada. The Supreme Court’s 1988 ruling on abortion threw out the legislation that existed at the time, but left a vacuum in its wake, which no government has had the nerve to fill. Suggesting Canada has “hard won rights and freedoms” that protect the right to terminate unborn children is simply not true. What it has is a total lack of rules, and a public unwilling to confront the commotion that would surely arise from any effort to re-open the matter.

This allows people like Trudeau to pretend that Canada has undergone a fierce debate over the issue, and “pro-choice” emerged victorious. He seized on this falsehood in his remarks in Hamilton, in which he used the term “rights” three times to describe a situation in which no rights have been codified. Simply because pro-abortion organizations habitually refer to “a woman’s right to choose” doesn’t mean it exists; women in Canada have the ability to choose — simply because there is nothing to stop them — but that’s not the same as a right. In fact, the 1988 decision indicated that the mother’s rights should be balanced against the child’s. People and organizations can oppose abortion and still be respectable, law-abiding citizens. It’s not clear whether the Prime Minister understands this distinction, or prefers to ignore it in favour of a less honest approach.

What Trudeau’s government is doing is to treat Liberal policy and pro-choice dogma as equivalent to Charter protection. It reflects the innate Liberal conceit that party policy inherently reflects national opinion, that if Liberals believe something, it must be right and true.

The government says there’s a difference between organizations which just happen to oppose abortion, and those whose very reason for being is to oppose and protest it.  If they want to deny funding to the latter, I think the Trudeau government is perfectly within its rights to do so: there is no right to government money, and I don’t think a government is obligated to fund those whose very mandate is to oppose its policies.

In practice, however, the government is effectively making applicants swear allegiance to Liberal Party policy:

The new “attestation” on the grant application is aimed at anti-abortion groups who have received the federal grants in the past. It requires stating that your organization’s core mandate respects “reproductive rights,” along with other human rights, and the online application can’t be submitted unless the box is checked.

But hundreds of churches, charities, day camps and other religious organizations who hire students for summer programming are upset about the attestation, saying they feel like they’re being forced to sign a statement that goes against their beliefs.

“As a small Christian church that was planning to apply for the Canada Summer Jobs program to offer a summer internship, the recent changes have been quite a shock and disappointment,” said Brad Jones, the pastor at Woodgreen Presbyterian Church in Calgary.

If the form was designed by mistake, it should be easily fixed.  If it wasn’t designed by mistake, the government is saying one thing and doing another, and it’s at least as much of a “dog whistle” to its supporters about scary Christian right-wingers as anything the Harper government did regarding Muslims.

Advertisements

How the Bundy case was bungled

David French explains why a federal judge (an Obama appointee, at that) dismissed the government’s case against far-right activist Cliven Bundy, whose band of misfits was involved in a standoff with Bureau of Land Management officers in 2014:

In its indictment, the federal government claimed that Bundy used “deceit and deception” to recruit its allied “gunmen” to defend his cattle from government seizure. As Mother Jones’s Stephanie Mencimer outlined in a lengthy report on the case, the alleged deceptions included claims that officers abused David Bundy when they arrested him a few days before the standoff and claims that the Bureau of Land Management had surrounded his property with snipers. Here’s Mencimer:

But those claims, dismissed by the government as fiction by paranoid anti-government activists, have largely turned out to be true. And it’s taken the government nearly two years, and three trials, to admit as much in court.

Oops. As Mencimer notes, this information dribbled out over the course of the court proceedings, at least until Larry Wooten, a BLM special agent who worked on the Bundy case, wrote an explosive whistleblower memo outlining a truly stunning series of government misdeeds that went well beyond withholding evidence at the trial.  To be clear, Wooten is no fan of the Bundys. He rightly accused them of pursuing an “illegal, uncivilized, and dangerous strategy,” but the same words apply to the federal government — the alleged guardians of the rule of law.

[…]

Wooten also claimed that the special agent in charge “ignored” direction from U.S. attorneys and from BLM management and instead chose to command “the most intrusive, oppressive, large-scale, and militaristic trespass cattle impound possible.” Wooten also claimed there existed “excessive use of force, civil rights, and policy violations,” including deliberate efforts to withhold exculpatory evidence. Wooten not only accused the government of misrepresenting the truth about snipers at trial, he specifically described the snipers’ armament and positioning.

In her ruling dismissing the case, Judge Navarro noted that the government also withheld information about threat assessments indicating that the Bundys weren’t violent, documents showing that cattle grazing “hadn’t threatened the desert tortoise,” and hundreds of pages of internal-affairs documents about the special agent in charge. (BLM had fired him for, in part, “improperly using his position to get coveted tickets for friends to attend the Burning Man arts festival in 2015.”)

Taken together, the evidence demonstrates that sometimes the paranoid are correct. In this case, evidence shows that a federal agency motivated by ego, anger, and prejudice launched the most militaristic and aggressive campaign possible against a rancher whom federal officials had deemed to be likely peaceful. There is evidence they abused that rancher’s son, ringed his property with snipers, and intended to “kick [him] in the mouth and take his cattle.” Then, when it came time to prosecute that same rancher, they withheld the truth and portrayed his accurate claims about federal misconduct as criminal deceptions designed to inflame public outrage.

Federal judges do not dismiss federal prosecutions lightly, and Obama appointees are hardly known to carry water for right-wing militias. Moreover, Judge Navarro’s dismissal is in no way a vindication of Bundy’s tactics. His allies, after all, went so far as to put women in the front of the firing line with the express hope that they’d die first in any firefight — and embarrass the federal government in front of the world. Others pointed guns straight at federal officers. That’s not civil disobedience, that’s armed resistance, and it’s entirely inappropriate when — as we see here — the law still offered redress against violations of Bundy’s civil rights.

The judge, however, understood her legal obligations. Who is the greater threat to public peace and the rule of law? A rancher and his sons angry that the government is destroying his livelihood in part through political favoritism and vindictiveness? Or a government that acts as if might makes right, abuses its citizens, and uses maximum force when far less intrusion and risk would accomplish its lawful purposes?

More here.  Above the Law’s Elie Mystal, of course, thinks the Bundys got away with it because they were white:

You know, if I rallied hundreds of armed black people to my cause to protest paying a federal tax, intimidating federal agents who had duly come to collect, I wouldn’t be in jail. I’D BE DEAD. They’d send in a robot to blow up my house, even if my children were inside. Then, at my posthumous trial, they’d put my family on the hook for all my debts.

I am, of course, non-white. …

[…]

Prosecutors withheld the evidence gathered from some witnesses because (wait for it) BUNDY SUPPORTERS ALLEGEDLY THREATENED WITNESSES.

“As a result of threats to witnesses and the speed at which personal information can spread on social media, the government concluded it could not simply turn over its entire database,” prosecutors wrote in a brief before Monday’s hearing. “Failure to disclose the information underlying the court’s mistrial order was due, in a few instances, to simple inadvertence, but in the overwhelming majority of instances to a good-faith,” they said.

This is the part where I’m supposed to say “two wrongs don’t make a right,” or “don’t worry about what other people have, worry about what you have,” or “the operation of laws should always be praised,” or some other child’s platitude made up by white America to explain why white people are able to get away with gun-toting acts of violence that would result in an IMMEDIATE DEATH SENTENCE to any person of color.

But I don’t have it in me.

Do you know how much the justice system looks like a supremacist JOKE when you let these people take a walk? It is PROOF that there is one set of rules for white people, and a different set of rules for everybody else. These dudes are out here in armed rebellion. Let that happen in East L.A. and Trump would send in a motherjumping DRONE STRIKE.

Whatever. White people win, again. ‘Twas always thus.

Actually, the Judge – again, an Obama appointee, not a Roy Moore type – dismissed prosecutors’ claims that evidence had to be withheld to protect its witnesses.  Interesting, when people like Mistal choose to unquestioningly accept prosecutors’ word.

Still, we’ve seen far too many examples of African-Americans’ rights being disregarded, and their lives taken, by aggressive, overly militarized law enforcement officers.   You may not agree with all of the Black Lives Matter movement’s ideas and tactics (I certainly don’t) but no honest observer can deny the movement has very legitimate reasons for being.

But I wish people would look at cases like the Bundys and say these rights should be protected for the most vulnerable Americans, instead of being disregarded for everyone.

The do-it-yourself marriage that wasn’t

The National Post reports on an unusual case from my home province, in which a couple exchanged rings and started calling themselves husband and wife, but never officially got married.  When the relationship ended, Linda Dwyer argued that she was entitled to equal division of her ex-partner’s property, but a judge disagreed.

That ruling has now been upheld by the Newfoundland and Labrador Court of Appeal:

They took turns saying vows and exchanged rings. But there was no officiant; nor were there any witnesses. And they didn’t bother getting a formal marriage licence. Still, they held themselves out to family, friends and fellow church members as “husband” and “wife” for years.

When Bussey abruptly broke off the relationship in 2014, Dwyer felt she was entitled to a “division of matrimonial property,” like any other spouse. But Bussey disagreed, setting the stage for an acrimonious and novel legal battle over what constitutes “marriage.”

In a 2-1 decision late last month, a provincial appeal court upheld a lower court decision that said the retired couple — Dwyer is 65 and Bussey is 74 — did not meet the definition of a married couple or qualify as spouses.

“I was his wife to his family, friends and neighbourhood, and as far as I can see, I should have been recognized as his spouse,” Dwyer told the National Post.

[…]

…Newfoundland and Labrador Supreme Court Judge Jane Fitzpatrick sided with Bussey. In a June 2015 decision, she wrote: “Holding ceremonies yourself without a marriage licence, an officiant or witnesses and exchanging rings can only be recognized in this province as a common law union.”

Moving to a broader interpretation would only invite a “myriad of uncertainties,” the judge added, citing language used in an Ontario court case.

Dwyer appealed the decision.

In late November, an appeal court panel upheld the earlier decision in a 2-1 ruling. Creating an “ambiguous” intermediate class of people who are not legally married but still qualify as spouses would create too much uncertainty and lead to “needless, acrimonious litigation,” Judge Charles White wrote for the majority.

“The formalities of a legal marriage ensure clear evidence of the parties’ intentions.”

The full decision is here.  There was a dissenting opinion in the case, so an appeal to the Supreme Court of Canada remains a possibility.

For now, though, the law continues to draw a distinction between formal marriages and common-law relationships, at least where division of property is concerned.

A tattoo is not a legal document

According to a recent letter in the New England Journal of Medicinedoctors at Florida’s University of Miami Hospital had to decide whether an unconscious patient’s “Do Not Resuscitate” tattoo should be honored:

His anterior chest had a tattoo that read “Do Not Resuscitate,” accompanied by his presumed signature.  Because he presented without identification or family, the social work department was called to assist in contacting next of kin. All efforts at treating reversible causes of his decreased level of consciousness failed to produce a mental status adequate for discussing goals of care.

We initially decided not to honor the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty. This decision left us conflicted owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested…

The doctors noted that “tattoos might represent permanent reminders of regretted decisions made while the person was intoxicated.”

a4N2OX3
A few too many Duff beers, and this could happen to you.

The decision was subsequently reversed, however, with an ethics consultant determining that if the guy went so far as to get a tattoo reading “Do Not Resuscitate,” he really meant it.  And it turned out that he had filed a written directive confirming these instructions:

After reviewing the patient’s case, the ethics consultants advised us to honor the patient’s do not resuscitate (DNR) tattoo. They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests. A DNR order was written. Subsequently, the social work department obtained a copy of his Florida Department of Health “out-of-hospital” DNR order, which was consistent with the tattoo. The patient’s clinical status deteriorated throughout the night, and he died without undergoing cardiopulmonary respiration or advanced airway management.

The physicians conclude, “this case report neither supports nor opposes the use of tattoos to express end-of-life wishes when the person is incapacitated.”

My own suggestion is that you draft (or have a lawyer prepare for you) a personal directive setting forth your wishes regarding treatment should you become incapacitated, and/or appointing a substitute decision-maker.  And make sure your close friends and family know where it is and what it says.

Should your religion prevent you from adopting children?

It wasn’t too long ago that same-sex couples were denied the opportunity to open their homes to children who needed a family.  Now, the Alberta government is allegedly denying a couple the chance to adopt children because of their conservative Christian beliefs about homosexuality:

An evangelical Christian couple have filed a court application alleging the province discriminated against them based on their religious beliefs by rejecting their application to adopt a child.

The Edmonton couple — whose are identified only by initials in court documents — allege an initial recommendation they be allowed to adopt was revoked after “interference” by the Ministry of Children’s Services, and that they were told their religious beliefs related to gender and sexuality were contrary to the “official position of the Alberta government.”

“If we did not change our religious beliefs regarding sexuality, to conform to the beliefs of Child and Family Services, we would not be approved for adoption,” said the woman in an affidavit filed Nov. 1 with Court of Queen’s Bench in Edmonton.

The couple’s identities have been redacted from the documents filed in court, but a copy of a Safe Home Study Report completed in February 2017 describes them as employed, owning their own home and having happy and healthy family and community networks. They indicated they hoped to adopt a child, or up to three siblings, between the ages of seven and 17. The Catholic Social Services worker who prepared the report said in an email she was “pleased” to recommend them for adoption.

However, the report recommended a “homosexual child” not be placed with the couple because of an assessment that though they said would unconditionally love a child questioning or exploring their sexuality, they would not support the “lifestyle,” which could mean a child may not feel accepted.

[…]

During subsequent meetings with Catholic Social Services and Child and Family Services, the couple said they made it clear they would seek counselling and support if their child was questioning their sexuality, but they could not encourage a lifestyle that “we knew caused a higher proportion of anxiety, depression, and suicide attempts than other lifestyles,” according to the affidavit.

On May 3, the couple’s adoption application was officially rejected, according to court documents.

They are asking the court to rule that their rights were violated, and for an order that they be approved as adoptive parents.

While I do not share this family’s beliefs about homosexuality, I also don’t believe a person’s religious or political beliefs automatically make a home unsuitable for a child – especially when the alternative is for the young person to remain stuck in the foster care system.

Of course we’re only hearing the family’s side of the story, and we don’t know if there are other factors which call their ability to parent into question.  We’ll find out when the matter goes to court next year.  But I am extremely nervous about a government deciding that being an evangelical Christian – or a member of any other faith with conservative views on sexuality – renders you unable to adopt.

Everyone supports freedom of speech they agree with

While everyone argues about Masuma Khan’s anti-Canada social media postings, Dalhousie University’s investigation of same and the implication for freedom of expression on campus, I think they’re overlooking the real lesson of this mess.

Which is: vote in your student council elections.

As a proud UNB alumnus I can’t speak for the home of Atlantic Canada’s second-best law school, but I’m sure the overwhelming majority of students do not agree with Khan.  But she was elected fair and square, because most people simply couldn’t be bothered to vote.  This is why most university student unions are politically somewhere to the left of the Symbionese Liberation Army.

Now that she is being investigated by the school for expressing her opinion, this is a good test case to determine who really believes freedom of expression is sacrosanct, and who just supports it for their own side.  I was personally offended by much of what Khan wrote, but I believe this investigation is a travesty:

A Dalhousie University student is facing disciplinary action over a post she made to Facebook in the summer about Canada 150 celebrations.

Masuma Khan said she was given the option to undergo counselling and write a reflective essay after the Halifax-based school conducted an investigation into a complaint about her online comments, but she says she refused.

[…]

Earlier this year, Khan, who is a vice-president of the Dalhousie Student Union (DSU), put forward a motion that the group not participate in Canada 150 celebrations. The executive passed her motion, saying it wouldn’t hold or endorse Canada Day events on campus, describing this year’s events as an act of colonialism.

The student union faced a serious backlash over the decision and Khan took to social media in response, writing that “white fragility can kiss my ass. Your white tears aren’t sacred, this land is.”

Some libertarians have risen to Khan’s defence, and like Reason‘s excellent Robby Soave, note that this is the inevitable result of policing “offensive” speech:

…this is what happens when she hurt my feelings, burn the witch! becomes the dominant norm on campus. Of course such a regime would backfire on the left. It was only a matter of time before fed up conservatives, who are already outnumbered on campus, made use of the considerable administrative bureaucracy that exists for the sole purpose of making everybody comfortable. When the radicals gave up on free speech, they put themselves at greatest risk.

Many others who usually consider themselves free-speech activists have been notably silent, however.  If Ezra Levant has tweeted about it, I must have missed it.

On the other hand, some law professors at Dalhousie have published an open letter backing Ms. Khan, but also implying that speech they agree with must be defended:

Capture.PNG

Capture2.PNG

Someday a Dalhousie student will get in trouble for posting some political opinions the law professors deem offensive.  Will they defend that speech as well?

Three things you should never, ever do

A Connecticut man called the radio show of personal-finance guru Dave Ramsey, and inadvertently gave a master class in what not to do in a divorce:

1. Never, ever, sign away your interest in a matrimonial home without the other party refinancing the property.  This poor fellow signed a quit claim deed, but his ex-wife didn’t obtain a new mortgage.  Now she’s decided she’s not going to make the payments anymore, and the mortgage company is coming after him.

There is a court order stating that she must refinance and have his name removed from the covenants of the mortgage, so she may be in contempt of court.  But it would have been much easier if the caller ensured that this was done as a condition of him signing the deed.

So why didn’t his lawyer catch this?  Well, about that…

2. Never “share” a family lawyer with the other party.  Even if both parties apparently agree on all the major issues, something inevitably comes up which they hadn’t thought about until a lawyer points it out.  And it’s sadly not uncommon for one party to be coerced or bullied into a blatantly unfair, one-sided “agreement.”

The lawyer’s job is to represent your interests.  By definition, your interests and those of your ex are not the same.  There is an inherent conflict of interest.  Had this guy retained his own legal counsel, he likely wouldn’t have gotten into this mess in the first place.

The caller almost certainly has the law on his side, but he remains reluctant to take the matter back to court.  Which raises my third point:

3. Don’t “give in” to the other party in the hopes of “keeping the peace.”  The caller tells Dave that he isn’t sure taking legal action “is the best decision for [his] children,” because he’s concerned about “keeping the peace between the two households.”

Ramsey responds, “I missed the part where she cares about that.”

Sadly, I’ve seen it many times: a client comes into my office to discuss the other party’s settlement proposal, I point out some blatant deficiencies, but he or she wants to agree “just to get it over with.”

A separation agreement or consent order might be the most important document you will ever sign in your life.  If you accede to terms you don’t really agree with, you – and your children – may be stuck with them indefinitely.  You can make a court application to vary an order or agreement, but the burden is on you to show that a “material change of circumstances” has occurred.  If you knew about these potential problems when you made the agreement, it’s that much harder for you to meet the test.

When one party folds and just accepts what the other side demands, it’s usually shows a severe imbalance in power between the parties.  (And it’s not always the female partner being coerced by the man – I’ve worked on several cases where it’s the husband who just wants to “get it over with,” not to mention some same-sex relationship cases.)  Rest assured, the party dictating the terms of agreement couldn’t care less about your feelings.