Friday, January 26, 2007

Arar to receive $10.5 million settlement - Canada Apologizes

Kudos to the Government of Canada for acknowledging its role in the blunders that led to the wrongful deportation, imprisonment and torture in Syria of Maher Arar, a Canadian citizen.

From Yahoo news today:

OTTAWA (Reuters) - Canada apologized to Maher Arar and his family on Friday and said it would compensate him C$10.5 million ($8.9 million) for its role in his deportation by the United States to what he said was a year of repeated torture in a Syrian jail.

U.S. officials deported the Syrian-born Canadian citizen after the Royal Canadian Mounted Police said he was an Islamic extremist, but an official Canadian inquiry said there was no evidence he was linked to terrorism.

The deportation has become a sore spot in relations between Canada and the United States, and Prime Minister Stephen Harper renewed his call for Washington to remove Arar from its security watch list as he announced the settlement.

"On behalf of the government of Canada, I wish to apologize to you, Monia Mazigh (Arar's wife) and your family for any role Canadian officials may have played in the terrible ordeal that all of you experienced in 2002 and 2003," Harper said in a letter of apology which he read at a news conference.

... In Washington, Democratic Sen. Patrick Leahy issued a statement saying he was seeking answers as chairman of the Senate judiciary committee as to why Arar was sent to Syria.

"The question remains why. Even if there were reasons to consider him suspicious, the U.S. Government shipped him to Syria where he was tortured, instead of to Canada for investigation or prosecution," Leahy said.

The U.S. ambassador to Canada, David Wilkins, said this week that it was presumptuous of Ottawa to try to determine whom the United States would put on its security watch list, but Harper said he would keep up the pressure.

"We will not drop the matter ... just because we disagree and they don't like hearing our position," Harper countered.

- Garry J. Wise, Toronto
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Tuesday, January 23, 2007

A.G. Gonzales: Arar to Stay on Watch List - Wants "Confidential Meeting" with Canadian Government to Explain

After being grilled last week by Senator Patrick Leahy, chairman of the Senate Judiciary Committee, U.S. Attorney General Alberto Gonzales remains firm in his resolve against Maher Arar.
Leahy blasted Gonzales for the U.S. Government's actions against Arar at a Judiciary Committee hearing on January 18, 2007:
Leahy: "We knew damn well if he went to Canada he wouldn't be tortured. He'd be held and he'd be investigated. We also knew damn well if he went to Syria, he'd be tortured. And it's beneath the dignity of this country, a country that has always been a beacon of human rights, to send somebody to another country to be tortured."
Maher Arar is a Canadian citizen, originally born in Syria in 1970, who came to Canada in 1987.
The U.S. government wrongfully deported Arar to Syria in September 2002, where he was tortured by his Syrian captors while in prison.
In September 2006, a Canadian Commission of Inquiry ultimately cleared Arar of any connection to terrorist activity.
Apparently, that comprehensive investigation has done painfully little to influence administration officials in Washington.
CNN reports today as follows:

American officials said Monday that a Canadian should remain on a U.S. terrorist watch list despite the Canadian government's conclusion otherwise and its apology after the designation led to his detention in Syria.

In a joint letter, U.S. Attorney General Alberto Gonzales and Homeland Security Secretary Michael Chertoff informed Stockwell Day, Canada's minister of public safety, that they had again looked at intelligence in their possession concerning Maher Arar."Based on this re-examination, we remain of the view that the continued watch listing of Mr. Arar is appropriate," the U.S. officials said.

"Our conclusion in this regard is supported by information developed by U.S. law enforcement agencies that is independent of that provided to us by Canada regarding Mr. Arar."

The Arar case has been politically charged. Last week, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, sharply criticized Gonzales about the case during the attorney general's appearance before the panel....

On Monday, Leahy complained the letter does not address what he called "the larger issues surrounding this case."

"The reason the Arar case is such a sore point and such an offense to American values is that he was sent to Syria on the Bush administration's orders, where he was tortured," Leahy said in a written statement.

He said he was puzzled by the decision to keep Arar on the watch list, but said he would await a promised briefing by Gonzales.

Justice Department officials said Monday that the attorney general will inform the lawmaker why the Bush administration believes Arar should remain on the watch list.In their letter to the Canadian minister, the U.S. officials said they would like to brief the Canadians "in a confidential meeting with appropriate Canadian officials at their earliest convenience."

The history of Arar's ordeal is documented at

Maher Arar is a 34-year-old wireless technology consultant. He was born in Syria and came to Canada with his family at the age of 17. He became a Canadian citizen in 1991. On Sept. 26, 2002, while in transit in New York’s JFK airport when returning home from a vacation, Arar was detained by US officials and interrogated about alleged links to al-Qaeda. Twelve days later, he was chained, shackled and flown to Syria, where he was held in a tiny “grave-like” cell for ten months and ten days before he was moved to a better cell in a different prison. In Syria, he was beaten, tortured and forced to make a false confession.

During his imprisonment, Arar's wife, Monia Mazigh, campaigned relentlessly on his behalf until he was returned to Canada in October 2003. On Jan. 28, 2004, under pressure from Canadian human rights organizations and a growing number of citizens, the Government of Canada announced a Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar.

On September 18, 2006, the Commissioner of the Inquiry, Justice Dennis O'Connor, cleared Arar of all terrorism allegations, stating he was "able to say categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada."

To read the Commissioner's report, including his findings on the actions of Canadian officials, please visit the Arar Commission's website or click here.

So now, Gonzales wants a confidential meeting with Stockwell Day!
Is there something new to discuss - something vitally relevant about Arar that will change everything?
Or perhaps, something so "sensitive" that Gonzales has withheld it from the O'Connor Commission and the Government of Canada to date (but is now prepared to disclose to Stockwell Day and his Conservative cronies in Ottawa)?
You gotta be kidding...
It would be an international embarrassment to Canada if Stockwell Day or any government official participated in such a meeting.
Too little. Too late.
The Government of Canada would be well-served to publicly decline Gonzales' self-serving overtures.

- Garry J. Wise, Toronto
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Sunday, January 21, 2007

Rising on the Blog Charts....

I became aware of Justia BlawgSearch's law blog rankings through Slaw, another Canadian blawg, that linked to us last week.

(Slaw is a co-operative weblog about Canadian legal research and IT issues).

This morning, BlawgSearch has Wise Law Blog ranked as their third "most popular" Canadian law blog. We also came in at a respectable number 38 internationally, of 1245 blawgs listed.

As our all-time rank is listed at a middling 355, I guess that means we are now rising on the blawg charts with a bit of a bullet!

That's kind of fun...

- Garry J. Wise, Toronto

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"Rock, Paper, Scissors, Your Honour"

We all know that opposing counsel don't always get along so well, but still, I'm not too sure about one Atlanta judge's solution.

This ridiculous report came from

Taking a page from a Florida judge's playbook, an Atlanta federal judge told squabbling lawyers they might need to resolve future petty differences with a game of "Rock, Paper, Scissors."

... Attorney Lisa D. Wright sought a protective order on behalf of plaintiff Kelly Holmes, claiming that defense lawyer Louis R. Cohan had previously deposed one of her other clients "in an abusive, annoying, harassing and oppressive manner."

As a result, Wright asked Shoob to order that Holmes' deposition be held either at her office, a court reporter's office or federal court.

Cohan objected and sought his own protective order to bar plaintiff's counsel from taking depositions from the defense anywhere other than his own law office or the offices of his client, Trauner, Cohen & Thomas.

Shoob denied both motions, and named "Rock, Paper, Scissors" as the future means by which counsel should resolve their differences. "The parties," Shoob ordered, "shall each bear their own costs of bringing these silly motions."

Rock, paper, scissors, indeed! What happens if someone cheats...?

- Garry J. Wise, Toronto

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Saturday, January 20, 2007

U.S. Deputy Assistant Secretary of Defense, Charles "Cully" Stimson

More on the Charles "Cully" Stimson controversy from Firedoglake:

This story concerns the outrageous statements by the Bush Administration's deputy assistant secretary of defense Charles "Cully" Stimson, disparaging attorneys who provide pro bono legal representation to detainees at Guantanamo. Last week, the Times and other reports revealed that Mr. Stimson willingly participated in a effort, echoed later by Robert Pollock of the Wall Street Journal's editorial board, to expose the names of the attorneys and their private law firms and to insinuate that the attorneys were unprincipled and disloyal by representing "terrorists." The apparent goal of these fine folks was to intimidate these and any other attorneys who might seek to represent the detainees by smearing the attorneys' reputations and encouraging their firms' corporate clients to find other counsel.

In a clear sign of an Administration-wide attack on the ability of the legal system to provide any accountability to the Administration in its handling of detainees, Attorney General Gonzales did his part on Tuesday by blaming the detainees' attorneys for any delays in bringing the detainees to trial. On Wednesday, he also criticized federal judges for presuming to interfere in these cases involving terrorists.

... By Wednesday, the National Lawyers Guild and others called for Stimson's censure, and dozens of law school deans, as well as numerous editorials (e.g. WaPo), were calling for a retraction — and apparently many decent attorneys in the Defense Department were disavowing Stimson's comments. Wednesday, the protesters got a formal written apology from "Cully" in a letter to the Washington Post. But an apology is not enough; Mr. Stimson should be fired. I'll let the Boston Globe's lead editorial, Another Pentagon Smear, make the obvious case...

-Garry J. Wise, Toronto

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Friday, January 19, 2007

A Jewish Proverb

Food for thought for family law lawyers:

One of life's greatest mysteries is how the boy who wasn't good enough to marry your daughter can be the father of the smartest grandchild in the world.
- Garry J. Wise, Toronto (from my sister)
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Monday, January 15, 2007

Firedoglake's U.S. Evidence Law Primer

Firedoglake has what appears to be a good introduction to U.S. evidence law here, for those following the trial of Vice-President Cheney's former chief of staff, Lewis "Scooter" Libby.

Mr. Libby faces charges of perjury, obstruction of justice and making false statements. The charges arose from investigations into to the press "outing" of Valerie Plame as a CIA operative.

It is alleged that Mr. Libby mislead the FBI and a grand jury about a leak that exposed Ms. Plame's undercover status with the agency.

Mr. Libby has pleaded not guilty to all charges.

UPDATE: Part 2 of Firedoglake's evidence primer is now up and posted here.
- Garry J. Wise, Toronto
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Michigan Court: Adultery = Sexual Assault?

In one of those weird rulings we hear about every so often, a Michigan Appeal Court has reluctantly found that adulterous sexual conduct is a serious felony under Michigan law.

Raw Story has the report from the Detroit Free Press:

In a ruling sure to make philandering spouses squirm, Michigan's second-highest court says that anyone involved in an extramarital fling can be prosecuted for first-degree criminal sexual conduct, a felony punishable by up to life in prison.

"We cannot help but question whether the Legislature actually intended the result we reach here today," Judge William Murphy wrote in November for a unanimous Court of Appeals panel, "but we are curtailed by the language of the statute from reaching any other conclusion."

No one expects prosecutors to declare open season on cheating spouses. The ruling is especially awkward for Attorney General Mike Cox, whose office triggered it by successfully appealing a lower court's decision to drop CSC charges against a Charlevoix defendant. In November 2005, Cox confessed to an adulterous relationship.
"Technically," he added, "any time a person engages in sexual penetration in an adulterous relationship, he or she is guilty of CSC I," the most serious sexual assault charge in Michigan's criminal code.

.... The judges said they recognized their ruling could have sweeping consequences, "considering the voluminous number of felonious acts that can be found in the penal code." Among the many crimes Michigan still recognizes as felonies, they noted pointedly, is adultery -- although the Prosecuting Attorneys Association of Michigan notes that no one has been convicted of that offense since 1971.

Some judges and lawyers suggested that the Court of Appeals' reference to prosecuting adulterers was a sly slap at Cox, noting that it was his office that pressed for the expansive definition of criminal sexual conduct the appellate judges so reluctantly embraced in their Nov. 7 ruling.

Murphy didn't return my calls Friday. But Chief Court of Appeals Judge William Whitbeck, who signed the opinion along with Murphy and Judge Michael Smolenski, said that Cox's confessed adultery never came up during their discussions of the case.

"I never thought of it, and I'm confident that it was not something Judge Murphy or Judge Smolenski had in mind," Whitbeck told me Friday. But he chuckled uncomfortably when I asked if the hypothetical described in Murphy's opinion couldn't be cited as justification for bringing first-degree criminal sexual conduct charges against the attorney general.

"Well, yeah," he said.

- Garry J. Wise, Toronto
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Sunday, January 14, 2007

Pentagon Official Suggests Blackballing Gitmo Defence Lawyers

From CNN:

Charles "Cully" Stimson, the deputy assistant secretary of defense for detainee affairs, has proposed a boycott of law firms that represent Guantanamo Bay detainees:

The Pentagon on Saturday disavowed a senior official's remarks suggesting companies boycott law firms that represent detainees at the U.S. military prison at Guantanamo Bay, Cuba.

Charles "Cully" Stimson, the deputy assistant secretary of defense for detainee affairs, said in a radio interview last week that companies might want to consider taking their business to firms that do not represent suspected terrorists.

Stimson's remarks were viewed by legal experts and advocacy groups as an attempt to intimidate law firms that provide legal help to all people, even unpopular defendants.

A Pentagon spokesman, Lt. Col. Brian Maka, said Stimson was not speaking for the Bush administration.

Stimson's comments "do not represent the views of the Department of Defense or the thinking of its leadership," Maka told The Associated Press on Saturday.

Stimson's "shameful and irresponsible" remarks deserve condemnation, said Neal Sonnett, a Miami lawyer and president of the American Judicature Society, a nonpartisan group of judges, lawyers and others.

Sonnett said in a statement that Stimson had made a "blatant attempt to intimidate lawyers and their firms who are rendering important public service in upholding the rule of law and our democratic ideals."

Stimson on Thursday told Federal News Radio, a local commercial station that covers the government, that he found it "shocking" that lawyers at many of the nation's top law firms represent detainees.

Stimson listed the names of more than a dozen major firms he suggested should be boycotted.

First they tried to prevent trials. Now they try to obstruct legal representation.
- Garry J. Wise, Toronto
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Monday, January 08, 2007

Remaining Charges Against Saddam Dropped


The Associated Press reports:


Saddam Hussein's trial for the killing of 180,000 Kurds in the 1980s resumed Monday with the late dictator's seat empty, nine days after he went to the gallows. The court's first order of business was to drop all charges against Saddam.

...Chief Judge Mohammed Oreibi al-Khalifa said the court decided to stop all legal action against the former president, since "the death of defendant Saddam was confirmed.

- Garry J. Wise, Toronto
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Sunday, January 07, 2007

Canada's New Justice Minister and Attorney-General, Rob Nicholson

The Hon. Robert Douglas Nicholson has been appointed Canada's new Attorney General and Minister of Justice by Prime Minister Stephen Harper.

Nicholson, a 54 year old lawyer, was first elected to Parliament in 1984 in his hometown of Niagara Falls. He has previously held several cabinet posts, including his most recent stint as Conservative House Leader.

Blogger Cathiefromcanada comments on the Nicholson appointment:

I know the big news of the day was the replacement of Rona Ambrose as Environment minister, but I actually thought the replacement of Vic Toews as Justice Minister could turn out to be pretty significant, too.What's going to happen to all the Conservative "let's send more Canadians to jail" law proposals, like the three-strikes idea (which is, I think, both contrary to natural justice and unnecessary), not to mention "let's staff our courts with more right-wing, ideological judges" and then"'let's tie their hands with more mandatory sentences."

The new Justice Minister outlined his immediate agenda in Cracking Down on Criminals, a report in last Friday's Niagara Falls Review:

Canada's new justice minister, Rob Nicholson, vowed to continue the Conservative party's law-and-order push for tougher sentences for criminals and more protection for law-abiding Canadians. "This effort to make our streets and communities safer is really one of the government's priorities. There won't be any doubt about it," Nicholson said after Thursday's cabinet shuffle.

... Nicholson inherits responsibility for three bills the Conservatives introduced last year - to impose mandatory jail time for criminals who use guns; to raise the age of sexual consent to 16 years old from 14; and to end the use of conditional sentences for people convicted of serious crimes.

"There are a number of bills that have my attention. Certainly, I'll want to do what I can to get those things through," he said, adding he wants to see them become laws before an election is called.

Allan Woods of The Toronto Star indicates that "conservative insiders" view this appointment as a "rebuke" to Toews, and reports:

Parker MacCarthy, president of the Canadian Bar Association, said his group hopes there will be more time and opportunity to provide "meaningful input" on justice bills, which he said was lacking under Toews.

But questions remain about whether Nicholson, who declined an interview request, will have a mandate from the Prime Minister's Office to engage in the necessary negotiations, and submit to legislative amendments, needed to win opposition support – something Toews seemed unwilling or unable to do.

"The Conservatives realized that Toews was not portraying an image that was acceptable to Canadians in the sense that so many of the proposals in the legislation that he's brought before the House were overreaching and, in some cases, just way over the top," said NDP justice critic Joe Comartin.

"Nicholson ... is a person that is prepared to make compromises and help build consensus and I think that is the kind of image that they would prefer to portray."

For more background:
  • Nicholson's home page online is here.
  • Wikipedia's extensive biography is here.
  • A partial history of his voting record in Parliament (to November 2005) is here
- Garry J. Wise, Toronto
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Saturday, January 06, 2007

Bush Getting "Defence Ducks" in Order?

As I said earlier - the impeachment drumbeats have quietly begun to sound.

And in the backrooms, the decider is apparently preparing to become the defender.

From CNN: President uses secret memo to block access to White house visitor logs

The chief counsel to another Washington-based group suing to get Secret Service logs calls the creation of the memo "a political maneuver couched as a legal one."

"It appears the White House is actually manufacturing evidence to further its own agenda," Anne Weismann, a Justice Department lawyer for 19 years and now chief counsel to Citizens for Responsibility and Ethics in Washington, said Friday.
The White House and the Secret Service declined to comment.

From the Washington Post: White House Counsel Hariet Miers resigns - Bush to "lawyer up"

Republican advisers have been telling the White House to be ready for war, and many cited Miers as the wrong general. "The White House knew they needed to get a tough street fighter - that's what this is about,'' said one such adviser, who spoke on the condition of anonymity to preserve access to the White House.

The advice, according to this person, could be summed up this way: "You guys better lawyer up, and lawyer up in the right way. You better understand the need and the peril and the urgency. . . . You need somebody as tough as [Clinton aides] Harold Ickes or Bruce Lindsey. Because they're coming for you.

And the Democratic Party has now controlled congress for all of two days.

Fasten your seatbelts.

- Garry J. Wise, Toronto

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Thursday, January 04, 2007

B.C. Court of Appeal Upholds Sulz $950,000.00 Damages Award

I originally wrote on the trial decision in Sulz vs. Attorney General of Canada in March, 2006.

This important decision addressed the ongoing, serious harassment of a female RCMP officer by a superior officer. Ms. Sulz suffered very significant damage, emotional harm and long-term disability. Ultimately, the harassment she was subjected to led to the end of her career with the Force.

Recently, the B.C. Court of Appeal rejected an appeal of the British Columbia government, and upheld the trial court's damages award of $950,000.00 in favour of Ms. Sulz.

The Appeal Court's decision is here.

I am excerpting below from an interview with Ms. Sulz in the Merritt-Herald newspaper, following the December 21, 2006 appellate decision:

For Nancy Sulz the end is in sight.

B.C.’s court of appeal has upheld the ex-Mountie’s victory in the harassment case she filed against the RCMP. They ruled that the provincial government would have to pay $950,000 in damages.

Sulz says it feels like another victory, but she is still apprehensive because the province has 60 days to appeal to the Supreme Court of Canada.

“There’s always that hesitation – are we done?” she explains. “Typically that wouldn’t happen, but they have given us no indication as to whether they plan to take it further.”

Sulz filed the suit after being harassed by her boss when she served as a constable with the Merritt RCMP. She returned to work after a medical leave following the birth of her second child and found her commanding officer, Donald Smith, began treating her in a demeaning manner that left her unable to do her job. Sulz says the treatment only continued to escalate, and it eventually became clear it was not going to end.

In 1996, after almost a year, Sulz went on paid long-term medical leave. In 1999, it was requested that she ask for a medical discharge. She did and in 2000 her time as an RCMP officer officially ended.

Unfortunately, the stress didn’t end when she left the department, and so she filed a suit against the province, Smith and the Attorney General of Canada.

Almost a year ago, in January 2006, the B.C. Supreme Court ruled in her favour based on what they believed to be extensive harassment by her superior officer. It was “so debilitating, the woman was left unable to work” according to Justice George Lamperson, the B.C. supreme court judge who originally ruled in Sulz’s favour.

- Garry J. Wise, Toronto

Tuesday, January 02, 2007

Ontario Court of Appeal: Child Can Have Three Parents

The Canadian Press reports today on a precedent-setting ruling by the Ontario Court of Appeal in a case referenced as A.A. v. B.B.:

TORONTO -- An Ontario boy can legally have two mothers and a father, the province's highest court ruled Tuesday.

The same-sex partner of the child's biological mother went to court seeking to also be declared a mother of the boy.

... [The] Court was told the child has three parents: his biological father and mother (identified in court documents as B.B. and C.C., respectively) and C.C.'s partner, the appellant A.A.

In affirming the non-biological mother's legal parentage, the Appeal Court exercised its inherent parens patriae jurisdiction to remedy what it found to be a "legislative gap" in the current statute, the Ontario Children's Law Reform Act.

The Act, on its face, clearly precludes a finding of dual motherhood. The Appeal Court, however, held that following the statute in this regard was contrary to the child's best interests, and issued a declaration affirming the parental status of the non-biological mother, in addition to the boy's two biological parents.

Excerpts from the ruling of Justice Rosenberg, for the Court, are below:

[1] Five-year-old D.D. has three parents: his biological father and mother (B.B. and C.C., respectively) and C.C.’s partner, the appellant A.A. A.A. and C.C. have been in a stable same-sex union since 1990. In 1999, they decided to start a family with the assistance of their friend B.B. The two women would be the primary caregivers of the child, but they believed it would be in the child’s best interests that B.B. remain involved in the child’s life. D.D. was born in 2001. He refers to A.A. and C.C. as his mothers.

The Importance of a Declaration of Parentage
[13] A.A. seeks a declaration that she is a mother of D.D. She and C.C. have not applied for an adoption order because, if they did so, B.B. would lose his status as D.D.’s parent by reason of s. 158(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11. That section provides: “For all purposes of law, as of the date of the making of an adoption order … (b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made and that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent”.

[14] A.A., B.B. and C.C. seek to have A.A.’s motherhood recognized to give her all the rights and obligations of a custodial parent. Legal recognition of her relationship with her son would also determine other kindred relationships. In their very helpful factums, the M.D.R. Intervenors and the Children’s Lawyer summarize the importance of a declaration of parentage from the point of view of the parent and the child:

· the declaration of parentage is a lifelong immutable declaration of status;
· it allows the parent to fully participate in the child’s life;
· the declared parent has to consent to any future adoption;
· the declaration determines lineage;
· the declaration ensures that the child will inherit on intestacy;
· the declared parent may obtain an OHIP card, a social insurance number, airline tickets and passports for the child;
· the child of a Canadian citizen is a Canadian citizen, even if born outside of Canada (Citizenship Act, R.S.C. 1985, c. C-29, s. 3(1)(b));
· the declared parent may register the child in school; and,
· the declared parent may assert her rights under various laws such as the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., s. 20(1)5.

[15] Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother. Without a declaration of parentage or some other order, the surviving partner would be unable to make decisions for their minor child, such as critical decisions about health care: see M.D.R. at para. 220. As the M.D.R. Intervenors say: “A declaration of parentage provides practical and symbolic recognition of the parent-child relationship.” An excerpt from the M.D.R. record dramatically demonstrates the importance of the declaration from the child’s point of view. I resort to this part of the M.D.R. record because D.D. is too young to provide this kind of information. The twelve-year old child of one of the applicants said this in her affidavit:

I just want both my moms recognized as my moms. Most of my friends have not had to think about things like this—they take for granted that their parents are legally recognized as their parents. I would like my family recognized the same way as any other family, not treated differently because both my parents are women....

[21] The CLRA was progressive legislation, but it was a product of its time. It was intended to deal with the specific problem of the incidents of illegitimacy – the need to “remove, as far as the law is capable of doing so, a stigma which has been cast on children who in the nature of things cannot be said to bear responsibility for it” (p. 11). The possibility of legally and socially recognized same-sex unions and the implications of advances in reproductive technology were not on the radar scheme. The Act does not deal with, nor contemplate, the disadvantages that a child born into a relationship of two mothers, two fathers or as in this case two mothers and one father might suffer. This is not surprising given that nothing in the Commission’s report suggests that it contemplated that such relationships might even exist.

[22] When the scheme of the CLRA is considered, especially the relationship between the various provisions in Parts I and II, it is apparent that the Act contemplates only one mother and one father. The application judge drew attention to many of these provisions. He referred in particular to s. 8, which deals with the presumption of paternity. He was of the view that this section contemplated only one father. This view of the legislation is also consistent with the adoption provisions in the Act whereby no more than two persons can apply for an adoption order and the order extinguishes other parental status. I agree with that interpretation of the legislation.

[23] Further, in my view, an interpretation of the Act that allows for a declaration of a single father and a single mother is fortified by s. 12(2) of the Act, which provides that:

Two persons may file in the office of the Registrar General a statutory declaration, in the form prescribed by the regulations, jointly affirming that they are the father and mother of a child. [Emphasis added.]....

Parens Patriae Jurisdiction

[27] The court’s inherent parens patriae jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap. This is not a case about a child being in danger. If the parens patriae authority were to be exercised it would have to be on the basis of a legislative gap.

[37] It is contrary to D.D.’s best interests that he is deprived of the legal recognition of the parentage of one of his mothers. There is no other way to fill this deficiency except through the exercise of the parens patriae jurisdiction. As indicated, A.A. and C.C. cannot apply for an adoption order without depriving D.D. of the parentage of B.B., which would not be in D.D.’s best interests.

[38] I disagree with the application judge that the legislative gap in this case is deliberate. There is no doubt that the Legislature did not foresee for the possibility of declarations of parentage for two women, but that is a product of the social conditions and medical knowledge at the time. The Legislature did not turn its mind to that possibility, so that over thirty years later the gap in the legislation has been revealed. In the result, the statute does not provide for the best interests of D.D....

[39] This holding would, it seems, be consistent with the position of the government. As stated earlier, the Crown in Right of Ontario did not intervene in this case, but its position on this issue is known. In M.D.R., the Crown took the position that the CLRA in fact could be interpreted to allow for a declaration that two women were the mothers of a child. Since I have found otherwise, it does no violence to the government's position to make the declaration sought by the appellant in this case through exercise of the parens patriae jurisdiction...

[41] Accordingly, I would allow the appeal and issue a declaration that A.A. is a mother of D.D. I would order that there be no costs of the appeal or of the application.

Full text of the Court of Appeal's decision in A.A. v. B.B is here.
For more background on parens patriae jurisdiction, see's article, here:

...the parens patriae doctrine has had its greatest application in the treatment of children, mentally ill persons, and other individuals who are legally incompetent to manage their affairs. The state is the supreme guardian of all children within its jurisdiction, and state courts have the inherent power to intervene to protect the best interests of children whose welfare is jeopardized by controversies between parents. This inherent power is generally supplemented by legislative acts that define the scope of child protection in a state.

- Garry J. Wise, Toronto
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Monday, January 01, 2007

E.U. Air Passengers: Email Messages and Credit Card Records to be Scrutinized by U.S.?

The U.K's Telegraph reports on an agreement between the U.S. and the E.U. to permit American authorities to scrutinize air travellers' credit card records and email messages:

Britons flying to America could have their credit card and email accounts inspected by the United States authorities following a deal struck by Brussels and Washington.

By using a credit card to book a flight, passengers face having other transactions on the card inspected by the American authorities. Providing an email address to an airline could also lead to scrutiny of other messages sent or received on that account.

The extent of the demands were disclosed in "undertakings" given by the US Department of Homeland Security to the European Union and published by the Department for Transport after a Freedom of Information request.

About four million Britons travel to America each year and the released document shows that the US has demanded access to far more data than previously realised.

Not only will such material be available when combating terrorism but the Americans have asserted the right to the same information when dealing with other serious crimes.

Shami Chakrabarti, the director of the human rights group Liberty, expressed horror at the extent of the information made available. "It is a complete handover of the rights of people travelling to the United States," she said.

Happy 2007. Is even the pretense of respect for privacy rights now a thing of the past?

- Garry J. Wise, Toronto
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Saddam Execution: Frantic Quest for "Legal Workarounds" in Sectarian Hanging?

Many developments from Iraq today, including a whole lot of fallout from the Saddam execution.

From Reuters:

The Iraqi government launched an inquiry on Monday into how guards filmed and taunted Saddam Hussein on the gallows, turning his execution into a televised spectacle that has inflamed sectarian anger.

A senior Iraqi official told Reuters the U.S. ambassador tried to persuade Prime Minister Nuri al-Maliki not to rush into hanging the former president just four days after his appeal was turned down, urging the government two wait another two weeks.

News of the ousted strongman's death on Saturday and of his treatment by officials of the Shi'ite-led government was blamed by one witness for sparking a prison riot among mainly Sunni Arab inmates at a jail near the northern city of Mosul.

An adviser to Maliki, Sami al-Askari, told Reuters: "There were a few guards who shouted slogans that were inappropriate and that's now the subject of a government investigation."

After a weekend of digesting (and subsequent viewing of the gruesome cellphone video of the Saddam execution that has gone viral on the internet), I am better able to articulate the unease I felt in advance of this execution.

This was a blatantly sectarian execution. It was conducted under a cloak of legitimacy lent by U.S. support for the current Iraqi regime and facilitated by the voluntary American handover of Saddam to Shiites for hanging.

As a matter of law and practicality, Saddam was executed solely for his crimes against Shiites. To his captors, judges and executioners, this was apparently enough.

His regime's atrocities against Kurds, Sunni dissenters and Jews were reduced to irrelevance in the rush to the gallows, even as trials were ongoing or pending.

As this L.A. Times report notes, many secrets have gone to the grave with Saddam, and questions remain unanswered:

Mahmoud Othman, a Kurdish legislator, said he had hoped Hussein would be questioned about the Anfal campaign, a brutal military operation that killed as many as tens of thousands of Kurds by gunfire and poison gas. Hussein was the chief defendant in the ongoing Anfal genocide trial, and Othman said he was worried that the ex-dictator's execution would undermine those proceedings and other planned cases.

Othman said Hussein should have been forced to testify about his involvement in poison gas attacks in the Kurdish town of Halabja, where 5,000 are believed to have died; his brutal crackdown on southern towns after a 1991 Shiite uprising; his destruction of the southern marshlands and the homes of the Marsh Arab tribes and his alleged assassination orders against political opponents.

"Had these cases been brought to trial, a lot of information would have been revealed … about the bad policies of the old regime," said Othman, who believed that so many terrible revelations would have undermined support for the Sunni Arab-led insurgency in Iraq.

"No one could have defended the things we would have brought out in these trials," Othman said. "Shedding light on all that has happened is more important than the execution of one man."

The embarrassing details of the execution itself included onlookers with cellphone cameras chanting the name of Moktada Al-Sadr.

In U.S. Questioned Iraq on the Rush to Hang Hussein, the New York Times reports:

Iraqi and American officials who have discussed the intrigue and confusion that preceded the decision late on Friday to rush Mr. Hussein to the gallows have said that it was the Americans who questioned the political wisdom — and justice — of expediting the execution, in ways that required Prime Minister Nuri Kamal al-Maliki to override constitutional and religious precepts that might have assured Mr. Hussein a more dignified passage to his end.

The Americans’ concerns seem certain to have been heightened by what happened at the hanging, as evidenced in video recordings made just before Mr. Hussein fell through the gallows trapdoor at 6:10 a.m. on Saturday. A new video that appeared on the Internet late Saturday, apparently made by a witness with a camera cellphone, underscored the unruly, mocking atmosphere in the execution chamber.

This continued, on the video, through the actual hanging itself, with a shout of “The tyrant has fallen! May God curse him!” as Mr. Hussein hung lifeless, his neck snapped back and his glassy eyes open.

The cacophony from those gathered before the gallows included a shout of “Go to hell!” as the former ruler stood with the noose around his neck in the final moments, and his riposte, barely audible above the bedlam, which included the words “gallows of shame.” It continued despite appeals from an official-sounding voice, possibly Munir Haddad, the judge who presided at the hanging, saying, “Please no! The man is about to die.”

The Shiites who predominated at the hanging began a refrain at one point of “Moktada! Moktada! Moktada!”— the name of a volatile cleric whose private militia has spawned death squads that have made an indiscriminate industry of killing Sunnis — appending it to a Muslim imprecation for blessings on the Prophet Muhammad. “Moktada,” Mr. Hussein replied, smiling contemptuously. “Is this how real men behave?”

American officials in Iraq have been reluctant to say much publicly about the pell-mell nature of the hanging, apparently fearful of provoking recriminations in Washington, where the Bush administration adopted a hands-off posture, saying the timing of the execution was Iraq’s to decide.

While privately incensed at the dead-of-night rush to the gallows, the Americans here have been caught in the double bind that has ensnared them over much else about the Maliki government — frustrated at what they call the government’s failure to recognize its destructive behavior, but reluctant to speak out, or sometimes to act, for fear of undermining Mr. Maliki and worsening the situation.

Blogger and lawyer Glen Greenwald comments:

This depressing New York Times article by John Burns and Marc Santora details the frantic, reckless manner in which Saddam Hussein was shoved into the noose in clear violation of Iraqi law. We can't even get a hanging right. With all of the world watching, we yet again were the primary authors of a violent, uncivilized, and primitive act which -- no matter how justified in some ultimate moral sense -- was carried out in the most thuggish, wretched, inept, and (we now learn) patently illegal manner.

It really is striking, and a potent sign of just how absurd is our ongoing occupation, that the "Iraqi Government" which we are fighting to empower could not even conduct this execution with a pretense of legality or concern for civilized norms -- the executioners were not wearing uniforms but leather jackets and murderers' masks, conducting themselves not as disciplined law enforcement officers but as what they are (death squad members and sectarian street thugs).

And the most revealing, and most disturbing, detail is that Saddam's executioners -- in between playground insults spat at a tied-up Saddam -- chanted their religious-like allegiance to Moktada Al Sadr, the Shiite militia leader whom we are told is the Great Enemy of the U.S., the One We Now Must Kill. This noble and just event for which we are responsible was carried out by a brutal, murderous, lawless militia. Freedom is on the march.

... The article details the "frantic quest" by the Iraqi government to concoct legal contrivances -- any at all -- to "justify" the immediate hanging despite the court's order.

They finally compiled enough pretty, signed "decrees" to secure the Bush administration's approval to carry out the hanging. But the rush to snap Saddam's neck did not allow enough time for all laws to be "workedaround." Some laws standing in the way of the hanging had to be deliberately disregarded:

Mr. Maliki had one major obstacle: the Hussein-era law proscribing executions during the Id holiday. This remained unresolved until late Friday, the Iraqi official said. He said he attended a late-night dinner at the prime minister’s office at which American officers and Mr. Maliki’s officials debated the issue.

One participant described the meeting this way: “The Iraqis seemed quite frustrated, saying, ‘Who is going to execute him, anyway, you or us?’ The Americans replied by saying that obviously, it was the Iraqis who would carry out the hanging. So the Iraqis said, ‘This is our problem and we will handle the consequences. If there is any damage done, it is we who will be damaged, not you.’ ”

Or, put another way, the Iraqi Government -- revealingly "frustrated" by the need to pretend to operate within the law -- knew that hanging Saddam in this manner was illegal, but they did it anyway because they know there will be no consequences.

And now, MSNBC reports that the predictable Sunni backlash has apparently begun:

Enraged crowds protested the hanging of Saddam Hussein across Iraq's Sunni heartland Monday, as a mob in Samara broke the locks off a bomb-damaged Shiite shrine and marched through carrying a mock coffin and photo of the dictator.

The demonstration in the Golden Dome, shattered in a bombing by Sunni extremists 10 months ago, suggests that many Sunni Arabs may now more actively support the small number of Sunni militants fighting the country's Shiite-dominated government. The Feb. 22 bombing of the shrine triggered the current cycle of retaliatory attacks between Sunnis and Shiia, in the form of daily bombings, kidnappings and murders.

Until Saddam's execution Saturday, most Sunnis sympathized with militants but avoided taking a direct role in the sectarian conflict -- despite attacks by Shiite militia that have killed thousands of Sunnis or driven them from their homes. The current Sunni protests, which appear to be building, could signal a spreading militancy.

Sunnis were not only outraged by Saddam's hurried execution, just four days after an appeals court upheld his conviction and sentence. Many were also incensed by the unruly scene in the execution chamber, captured on video, in which Saddam was taunted with chants of "Muqtada, Muqtada, Muqtada."

The chants referred to Muqtada al-Sadr, a firebrand Shiite cleric who runs one of Iraq's most violent religious militias. He is a major power behind the government of Shiite Prime Minister Nouri al-Maliki.

It is ever-increasingly clear that the longer the U.S. presence in Iraq remains, the dirtier (and bloodier) its hands will inevitably become.

-Garry J. Wise, Toronto
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