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Irwin Cotler, MP

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On the Charter’s Anniversary, More Conservative Contempt

Posted on April 17, 2015 | No Comments

(as published in The Montreal Gazette)

Thirty-three years ago, the Charter of Rights and Freedoms officially became part of Canada’s constitution, a landmark event later referred to by former Chief Justice Antonio Lamer as a “revolution in law comparable to the discovery of Pasteur in science.”

Under the Charter, Canada moved from being a parliamentary democracy to a constitutional one, Canadian courts moved from being the arbiters of legal federalism – whether a matter is of federal or provincial jurisdiction – to being guardians of our constitutional rights, and Canadians became constitutionally empowered to act upon those rights and assert them as a matter of law.

In the words of Justice Claire L’Heureux-Dubé, the Charter “stretched the cords of liberty.”

Yet, at the very time when we should be celebrating this momentous, transformative document, which came into effect April 17, 1982, we have had yet another reminder of the current government’s utter disdain for it.

Indeed, earlier this week, the Supreme Court struck down part of the Conservatives’ so-called “tough on crime” agenda, ruling that, for example, mandatory minimum sentences of three years’ imprisonment for offences such as improper storage of a firearm could constitute cruel and unusual punishment. This should come as no surprise to the government, which was warned about the Charter implications of this law when it was first introduced in 2007.

On its own, this case might be viewed as a simple difference of opinion on a question of constitutional interpretation. However, the Conservative government’s approach in this matter is, by now, part of a regrettable pattern: enact constitutionally suspect legislation or policy, smear those who raise Charter concerns, and spend taxpayer dollars fighting a losing legal battle all the way to the Supreme Court.

Such was the case last year when the Court ruled unanimously against the government’s attempt to retroactively eliminate the possibility of early parole for offenders who had already been sentenced. Justice Richard Wagner wrote that this was “one of the clearest cases of retrospective double punishment,” and thus a blatant Charter violation.

Likewise, in 2011, the Court unanimously ruled that, by refusing to renew the permit of a safe injection site in Vancouver, the government was violating Charter guarantees to life, liberty and security of the person. According to Chief Justice Beverley McLachlin, the refusal threatened the health and lives of Canadians with drug addictions, and “contravened the principles of fundamental justice.”

Indeed, the courts have found that Conservative law and policy has violated Charter rights in matters as varied as the refusal to repatriate a Canadian wrongfully imprisoned in Sudan; the mandatory imposition of the victim surcharge – a supplementary fee paid at sentencing – on impoverished offenders; and the denial of healthcare to refugee claimants.

In the latter case, Federal Court Justice Anne Mactavish made particular reference to the impact of that denial on claimants’ children, saying that it could “potentially jeopardize the health, the safety and indeed the very lives of these innocent and vulnerable children in a manner that shocks the conscience and outrages Canadian standards of decency.”

Moreover, many other government measures are currently being challenged on Charter grounds in lower courts. For example, in a case in B.C., the government stands accused of using solitary confinement in federal prisons in a way that discriminates against aboriginal inmates and the mentally ill, and that violates international standards prohibiting prolonged isolation.

While solitary confinement is supposed to be used as a last resort, figures I obtained from the government in response to written questions indicate that over 20% of prisoners spend time in solitary, and Correctional Investigator Howard Sapers has found that solitary confinement is now “a default population management strategy.”

The government declined to answer my questions about the length of isolation periods, or about the physical and mental health impacts of solitary confinement. It did, however, respond with an unqualified “no” to questions from my colleague, Liberal Public Safety Critic Wayne Easter, about whether it had received any analysis or advice on the constitutionality of its approach.

Ultimately, beyond the unnecessary expense and strain on judicial resources that result from knowingly implementing constitutionally problematic measures, the trouble with treating the Charter as an obstacle to be overcome – or a triviality to be ignored – is the very content of the Charter itself. The rights and freedoms it guarantees are an expression of Canada’s fundamental values, and a safeguard against discrimination, inequality, and the marginalization of the vulnerable. By minimizing the Charter, the government minimizes the values enshrined therein.

What is more, the government’s responsibility to take Charter considerations into account when drafting legislation is not only a moral one – it is, in fact, a legal requirement. Section 4.1 of the Department of Justice Act obliges the Justice Minister to examine all government bills “in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions” of the Charter, and to “report any such inconsistency to the House of Commons at the first convenient opportunity.”

That no Conservative Minister has ever tabled such a report – despite repeated warnings of potential unconstitutionality from the opposition and legal experts, and despite repeated confirmation from the courts that such warnings were well-founded – suggests that the government treats this law and the Charter with equal scorn.

In fact, a Justice Department official has come forward claiming that, according to government policy, no report of Charter inconsistency is deemed necessary as long as a bill has at least a five percent chance of being upheld. I have therefore introduced a Private Member’s Bill that would shift the responsibility for the prospective examination of Charter compliance from the Minister to House of Commons officials.

It is deeply regrettable, however, that such a bill is necessary. The Charter was a parliamentary initiative – not a usurpation of Parliament, as is sometimes alleged – that came to fruition thirty-three years ago. All the more reason for Parliamentarians of all political stripes to treat it and the values it represents with respect.

Irwin Cotler is the Liberal MP for Mount Royal, former Justice Minister and Attorney General of Canada, and emeritus professor of law at McGill University.

Statement on Yom HaShoah

Posted on April 15, 2015 | No Comments

The Honorable Irwin Cotler, Liberal Party Critic for Rights and Freedoms and International Justice, today issued the following statement on Yom HaShoah:

“Yom HaShoah occurs this year at a particularly important moment of remembrance and reminder. It is the 70th anniversary of the liberation of the Nazi death camps, including Auschwitz, the most brutal extermination camp of the 20th century. At Auschwitz-Birkenau, 1.3 million people were murdered, 1.1 million of them Jews, reminding us again of Elie Wiesel’s dictum that the Holocaust was a war against the Jews in which not all victims were Jews, but all Jews were targeted victims.

Yet while Jews died during the Holocaust because of anti-Semitism, anti-Semitism did not die. Hence the importance of the recent motion, unanimously adopted by the House of Commons, condemning the rising global tide of anti-Semitism and calling for the combating of anti-Semitism to be a domestic and international priority.

And as we have learned only too well, while it may begin with Jews, it does not end with Jews.

On this Yom HaShoah, we underscore both the imperative of zachor (remembrance), and the imperative of action. We must ensure that “Never Again” is not an idle cliché, but an exhortation to act for the prevention – and prosecution – of mass atrocity and genocide.”

Order Paper Question Q-1046: Administrative segregation

Posted on April 13, 2015 | No Comments

Prof. Cotler recently received a response from the government to his written question about the use of administrative segregation, or solitary confinement, in federal prisons. It is available here in English and French.

Order Paper Question Q-1045: SIRC Appointments

Posted on April 13, 2015 | No Comments

Prof. Cotler recently received a response from the government to his written question about appointments to the Security Intelligence Review Committee. It is available here in […]

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Order Paper Question Q-1044: Government Assisted Refugees

Posted on April 13, 2015 | No Comments

Prof. Cotler recently received a response from the government to his written question about Government Assisted Refugees. It is available here in English and French.

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How the Liberals will fight terror

Posted on April 10, 2015 | No Comments

(As originally published in the National Post) Wayne Easter and Irwin Cotler, National Post Early in the debate about Bill C-51, the government’s omnibus anti-terror legislation, […]

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Petition: Public Dental Care

Posted on April 2, 2015 | No Comments

Hon. Irwin Cotler (Mount Royal, Lib.): Mr. Speaker, the second petition calls upon the government and the House to examine the possibility of public dental care […]

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Question Period: Unconditional Release of Raif Badawi

Posted on April 2, 2015 | No Comments

Hon. Irwin Cotler (Mount Royal, Lib.): Mr. Speaker, just yesterday, the Minister of Foreign Affairs sought clemency in the Raif Badawi case, but a simple call […]

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HOUSE OF COMMONS UNANIMOUSLY APPROVES MOTION CALLING FOR MAGNITSKY SANCTIONS ON HUMAN RIGHTS VIOLATORS

Posted on March 25, 2015 | No Comments

Members of all parties specifically encourage sanctions against Russian officials responsible for detention, torture, death of whistleblower Sergei Magnitsky Ottawa – March 25, 2015 – The […]

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Motion on Sanctions against Human Rights Violators in Magnitsky Case

Posted on March 25, 2015 | No Comments

Today, Mr. Cotler introduced the following motion, which received the unanimous consent of the House: That, in the opinion of the House, Sergei Magnitsky, a Moscow […]

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