Quotulatiousness

July 8, 2011

The Canadian right to free speech: not invented in 1982

Filed under: Cancon, History, Law, Liberty — Tags: , , , — Nicholas @ 10:03

Mark Steyn responds to former blogger Jason Cherniak about the free speech rights of Canadians:

You claim that the legal right to free speech “did not exist as a legal right before 1982”. This is bollocks de facto and de jure. When you say with all the blithe insouciance of a Dalhousie Law School alumnus that any right to free speech was “only respected by convention”, my response is what do you think the entire Canadian legal inheritance is, genius? It’s “convention”. That’s what the definition of Common Law is: a body of precedent, understandings of inherent authority — ie, “convention”. When Julian Porter, QC filed a motion objecting to the Canadian “Human Rights” Tribunal’s “secret trial”, he cited CBC vs New Brunswick, Ambard vs Attorney-General of Trinidad and Tobago – in other words, the accumulation of precedent, or, in your words, a respect for convention.

England, the mother of Common Law, has no written consititution, and thus no “constitutional rights” at all, but only “conventions”. Those “conventions” were the underpinning of the 1867 British North America Act and, more broadly, the third of a millennium of Canadian legal history before the Charter of Worthless Crap. As Blackstone put it, for lands “planted by English subjects”, “all the English laws then in being, which are the birthright of every subject, are immediately there in force”. In other words, long before 1982, free speech was a Canadian’s “birthright” — through convention. It’s all convention. In the English legal tradition, take away convention, and what’s left?

That’s why more countries have lived in liberty longer under Common Law than any other legal inheritance. Because what you dismiss as mere “convention” is, in fact, an understanding that “law” and laws are not the same thing. It’s not about the government writing down on a piece of paper everything that it will permit you, Jason the Barrister, to do. “Rights” are not those things granted by the sovereign and enumerated in statute, but the precise opposite: They’re restraints upon the sovereign. They’re not about what the state allows you to do, but about what the state is not allowed to do to you. The English legal tradition is imperfect (as all systems are) but it has been a better protector of this principle than any other. What part of that don’t you understand?

All of it, apparently. Because along comes that puffed up poseur Trudeau with all his modish contempt for the Canadian inheritance and he decides that, like you, he’s not big on convention and precedent and he’d rather have everything written down, all nice and “codified”. So now we have your 1982 Charter that, for the first time since Magna Carta, gives citizens what you call a “legal right” to free speech. And whaddaya know? Ever since we got a Trudeaupian “legal right” to it, there’s been less and less free speech than back in the bad old days when (according to you) we had no “legal right” to it at all. Ask yourself this, “Barrister and Solicitor”: Had Guy Earle delivered his lesbophobic putdowns at a Canadian comedy club in 1981, would he have had more or less “legal right” to free speech than he enjoys today?

I said in my post that, for you and yours, Trudeau is Year Zero. Your response confirms it. That a Canadian lawyer is willing to argue that a long, established, settled legal inheritance means nothing unless Father Pierre writes it down in his Napeoleonic Complex Code is bleak confirmation of how thoroughly he vacuumed Canada’s past — and, in doing so, perverted the very idea of what “rights” are. If yours is a typical Canadian lawyer’s view of the law, it certainly explains a lot. God help us all.

June 16, 2011

QotD: The tendency to riot among Canadians

Filed under: Cancon, Government, Quotations — Tags: , , , , , , — Nicholas @ 09:44

Just as cities have to anticipate trouble, ordinary law-abiding folks who think a trip downtown to watch the fun have to accept that they won’t necessarily be protected from it, or from the police response. Ontario courts are still dealing with cases of people claiming their rights were trampeled when police reacted to the G20 violence by abandoning their own duties and discipline, and lashing out at anything that stumbled into their path. Hearings are being held to sort out what went wrong, and the force is struggling to retain some respect after doing its best to avoid being held accountable for its own indefensible actions. In other words, once the trouble starts, all bets are off, and anyone who thinks they’ll take the kiddies down for a peak, and will somehow be protected when things get out of hand, is deluding themselves.

There is something bizarre going on just beneath the surface of our supposedly decent and civilized society. Canada is prosperous and peaceful, and does as much or more than any country to preserve and protect the rights and opportunities of people fortunate enough to live here. There are certainly inequalities and injustices, but anyone who thinks they’ll find a society that tries harder to eliminate them, or is more concerned with trying to spread the benefits equally among all citizens, will have a lengthy search on their hands. It’s doubtful in any case that the dolts who ignited the trouble in Vancouver think that deeply, or have any purpose other than mindless mayhem. They deserve no sympathy, and should be treated by the law as harshly as allowed.

Kelly McParland, “Lessons to learn from dolts at a hockey game”, National Post, 2011-06-16

Horwitz: Yes, it is a police state

Filed under: Government, Liberty, USA — Tags: , , , , — Nicholas @ 08:18

It’s been a long time since 9/11, and the biggest losses have been in civil liberties:

As regular readers know, I’m not one for hyperbole, so perhaps some are thinking that my title is ironic. Nope, I mean it. An accumulation of events in recent months leads me to no other conclusion than that we are in fact living in a police state in the good old US of A.

The list of reasons is fairly long, but we can certainly start with our favorite gropers at the TSA. In my ideal world, airline safety would be the responsibility of those with the most directly to lose financially from doing it poorly: the airlines and the airports. But even in a world where government has taken on that responsibility, we should be protected by the Fourth Amendment against “unreasonable” searches. It’s one thing to walk through the standard metal detector, which seems reasonable, but when we are expected to pose virtually nude in a submissive position for government agents, and when refusing to do so earns you a feel-up that would count as sexual battery in most states, that is something else entirely.

If I had told you 20 years ago that in 2011 this is what would happen every day to thousands of travelers — including toddlers and the handicapped — at U.S. airports, you would not have believed me. And on top of everything else, it doesn’t work! It’s mere “security theatre.” When residents of the United States have a legitimate fear of being sexually abused by agents of the State when engaging in peaceful air travel, we live in a police state.

June 13, 2011

World Bank: smaller governments produce higher economic growth

Filed under: Economics, Government, Liberty — Tags: , , — Nicholas @ 09:33

Tim Worstall summarizes a recent World Bank report that seems to have reached quite sensible conclusions:

Given the level of economic debate currently in the UK the results might surprise. For they support an economic and civil liberalism entirely unlike anything that any political party currently puts forward. This first result is that:

For instance, a one unit change in the initial level of economic freedom between two countries (on a scale of one to 10) is associated with an almost one percentage point differential in their average long-run economic growth rates.

This is unlikely to please those we think of as being on the political left: what, you mean people should just be allowed to get on with things without the direction of a beneficent state? But there’s not that much support for the sort of One Nation Tory paternalism of the other lot either:

In the case of civil and political liberties, the long-term effect is also positive and significant with a differential of 0.3 percentage point.

Yes, people really should be left alone, to shag and to smoke and to live their lives as they please. And finally, it’s going to absolutely appal all of those who insist that it’s the positive freedoms that really produce economic growth:

In contrast, no evidence was found that the initial level of entitlement rights or their change over time had any significant effects on long-term per capita income, except for a negative effect in some specifications of the model.

Income redistribution, high (or low) unemployment pay, child care subsidies, they just don’t make any positive difference to growth but might have negative ones.

In other words, the less your government tries to do outside the basic duties of protecting the citizens from external threats and domestic crime, and providing an honest and transparent set of laws and a stable legal framework, the better off your country will be both economically and socially. Kinda like that minarchistic “night watchman state”.

June 7, 2011

QotD: The Bill of Rights on federal government property

Filed under: Government, Liberty, Quotations, USA — Tags: , , , , — Nicholas @ 09:36

Friends,

There’s been a hassle on FaceBook about what civilians and cops can or can’t do on “government property”, with some saying the Bill of Rights doesn’t apply there. I wrote this in response:

A little civics lesson, gentlemen, if you will allow me. The Bill of Rights is misnamed. It is not a list of things we are “allowed” to do, it is a list of things that government is not allowed to do, principally to trespass against certain natural liberties that are ours simply by virtue of our having been born.

The Bill of rights, therefore, is actively in force any time, any place that there are human beings. If it were metaphysically possible (it is not) it would apply even more on so-called government property than anyplace else, since it is specifically government that is constrained by it.

Moreover, since it is not just Americans who are human beings (contrary to what many seem to believe) it puts a whole new face on the legality — or illegality — of war, and in particular the treatment being accorded to the political prisoners at Guantanamo and similar places.

L. Neil Smith, “Letters to the Editor”, Libertarian Enterprise, 2011-06-05.

June 3, 2011

“The Amnesty film … was documentary as corporate hagiography”

Filed under: History, Liberty, Media — Tags: , , , , , — Nicholas @ 09:04

David Bowden reviews Amnesty! When They Are All Free, a BBC documentary on the 50th anniversary of Amnesty International:

The Amnesty film, by contrast, was documentary as corporate hagiography, evading nuance in favour of quick and easy narrative with a facile message: it ain’t easy being righteous.

It was a shame, because the story it told was potentially a fascinating one. Amnesty was born in the first wave of Sixties radicalism, and faced with the realisation that the apparently progressive politics of universal human rights adopted after the Second World War was being hijacked in the interests of Cold War realpolitik. The organisation began as a documentary news organisation, chronicling the disappearances and abuses under repressive regimes around the world. In the spirit of its famous torch image, Amnesty shone a light on human-rights abuses wherever it found them.

Certainly, as a product of the British postwar liberal intelligentsia, much of the organisation’s self-proclaimed apolitical stance smacked of naivety from the off; founder Peter Benenson was quickly forced to fall on his sword after accepting funding from the British government. Yet this overview of its early days was captivating stuff, offering a reminder of the genuine risks posed to its researchers and witnesses as this small organisation routinely found itself on the wrong side of Western and Soviet-backed juntas alike in its pursuit of accurate reporting of the human costs of the broader superpower struggle.

But Amnesty’s interventions were having distressing and unintended side effects — notably, the new tactic of ‘disappearing’ political prisoners before they became international causes célèbres. In the film, this raised interesting questions of journalistic ethics and apolitical campaigning, particularly pertinent in the context of the more cavalier instincts of the Wikileaks era.

Sadly, however, while willing to touch upon some of the uglier aspects of Amnesty’s growth from small, earnest campaign into the international China-baiting behemoth it is today, When They Are All Free tended to sideline difficult questions in favour of its heartwarming narrative. While there was a degree of soul-searching on offer, the problem with critiquing human rights as a political agenda today is that much of it is done by those on the inside. As Alex de Waal once remarked, ‘it is as though the sociological study of the church were undertaken by committed Christians only; criticism would be solely within the context of advancing the faith itself’.

May 26, 2011

There is no right to privacy, unless you’re a police officer

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 09:24

Jon sent me a link to this post at Reason.com, discussing the odd court decisions which seem to indicate that you have no right to privacy, but that the police do:

Such incidents have led to a national conversation about the propriety of videotaping cops, even as dashboard cameras have become standard in squad cars. There seems to be some tension in the assumption that, as Graber’s lawyer put it, “the officer has a privacy expectation, but the motorist doesn’t.”

That asymmetry has been underscored by recent rulings over global positioning systems. Last year the Virginia Court of Appeals said Fairfax County police did not violate a suspect’s right to privacy when, without a warrant, they surreptitiously put a GPS device on his vehicle to track his movements. Individuals have no expectation of privacy on the public streets, the court ruled — a position also taken by the Ninth Circuit in California.

Yet this past January, Kathy Byron, a member of Virginia’s House of Delegates, introduced legislation that would have forbidden the use of GPS tracking devices for the purpose of following political candidates. People running for public office “are still entitled to some privacy,” she argued.

Even more disturbing is the steady increase in what the police are allowed to do without a warrant or even suspicion of criminal activity:

U.S. border-patrol agents often search the phones and computers of American citizens who cross the border — routinely “accessing email accounts, examining photographs and looking through personal calendars,” according to The Constitution Project, a watchdog group. “In some cases, electronic devices were confiscated for as long as a year.” And in Michigan, the State Police have high-tech forensic devices enabling them to download information from the cell phones of stopped motorists — something they have been doing without a warrant.

[. . .]

Soon Americans might have no right to expect privacy even in the privacy of their own homes. Earlier this month the U.S. Supreme Court ruled 8-1 that police officers may force their way into your domicile without your consent, without a warrant, and without what are usually referred to as “exigent circumstances” — e.g., someone inside the home yelling for help. The case, Kentucky v. King, concerned an incident in which police officers chasing a drug suspect ran into an apartment building, smelled marijuana, heard noises they thought might indicate someone was destroying evidence — and broke down the wrong door. This, said the Supremes, was perfectly fine.

May 22, 2011

The Tory “omnibus crime legislation” overview

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 12:06

Kathryn Blaze Carlson looks at the likely form of the new federal government’s “tough on crime” omnibus bill:

The Conservative government’s omnibus crime legislation, due ‘‘within 100 days,’’ will mark a watershed moment in Canadian legal history, imposing many controversial changes to how police and the courts operate, experts say.

The bill is sweeping in scale and scope: It is expected to usher new mandatory minimum sentences for drug crimes — growing five marijuana plants to sell the drug would automatically bring six months in jail — and for certain sexual offences against children. It will expand police powers online without court orders, reintroduce controversial aspects of the Anti-Terrorism Act that expired in 2007, end house arrest for serious crimes, and impact young offenders and their privacy.

“This bundle of crime legislation represents the most comprehensive agenda for crime reform since the Criminal Code was introduced,” said Steven Skurka, a Toronto-based criminal defence lawyer.

As always, when the government bundles together a lot of bills, there are some good and some bad ideas all headed down the chute at the same time. An especially bad bit is the preventative arrest provision that expired with the original Anti-Terrorism Act, and another one is the one allowing the police to demand internet records from ISPs without a court order (or, one assumes, notice to the people whose internet records are of interest to the police).

May 18, 2011

Reminder: check state law before videotaping the police

Filed under: Law, Liberty, Media — Tags: , , , , , — Nicholas @ 00:02

Clive sent me this Wendy McElroy post from last year, but it’s still (mostly) valid today:

In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

The legal justification for arresting the “shooter” rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where “no expectation of privacy exists” (Illinois does not) but in practice this exception is not being recognized.

It shouldn’t need to be said that the police and the courts who’ve backed the police on this issue are wrong. But they appear to be running scared, at least in a few states:

Carlos Miller at the Photography Is Not A Crime website offers an explanation: “For the second time in less than a month, a police officer was convicted from evidence obtained from a videotape. The first officer to be convicted was New York City Police Officer Patrick Pogan, who would never have stood trial had it not been for a video posted on Youtube showing him body slamming a bicyclist before charging him with assault on an officer. The second officer to be convicted was Ottawa Hills (Ohio) Police Officer Thomas White, who shot a motorcyclist in the back after a traffic stop, permanently paralyzing the 24-year-old man.”

When the police act as though cameras were the equivalent of guns pointed at them, there is a sense in which they are correct. Cameras have become the most effective weapon that ordinary people have to protect against and to expose police abuse. And the police want it to stop.

May 16, 2011

Josh Rosenthall tries to figure out who is behind the iOS developer patent troll

Filed under: Law, Technology — Tags: , , , — Nicholas @ 13:15

It’s not absolutely definitive, but it looks as if Nathan Myhrvold former Microsoft CTO and the founder of Intellectual Ventures might be the man:

It’s been confirmed today that a company called Lodsys recently sent out a number of letters to independent iOS developers, including James Thompson — the developer of PCalc — and Dave Castelnuovo, creator of Pocket God , informing them that their use of in-app purchases in iOS infringes upon on this particular patent. Of course, Lodsys is going after small developers who lack the resources of larger development companies to fight back, presumably to frighten them into striking a licensing deal as soon as possible.

So who exactly is behind this unabashed case of patent trolling?

Well, we did a little leg work and though we can’t say with 100% certainty who is pulling the strings, it’s looking a lot like Intellectual Ventures is behind this disgraceful lawsuit.

Intellectual Ventures was founded in part by former Microsoft CTO Nathan Myhrvold. The company’s business model is simple — it purchases and applies for a ton of patents. It then licenses out those patents to others under the threat of litigation coupled with a promise not to sue if a deal is struck.

So let’s go through the chain of patent ownership.

May 14, 2011

For their next act, they’ll allow “quartering large bodies of armed troops”

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 00:38

Indiana must be an interesting place to live, but their Supreme Court has an odd view of the notion that a man’s home is his castle:

Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

And as I’m sure the law’n’order folks will be quick to point out, if you’ve done nothing wrong you’ve got nothing to worry about, right?

Even better, this is the second time this week that the court has reduced the rights of Indiana residents against police intrusion:

This is the second major Indiana Supreme Court ruling this week involving police entry into a home.

On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge’s permission to enter without knocking.

H/T to Walter Olson for the link.

April 20, 2011

More on the use of “kettling” by the police

Filed under: Britain, Law, Liberty, Media — Tags: , , , , — Nicholas @ 12:35

Patrick Hayes considers the “kettling” technique beloved of modern metropolitan police forces in the face of protest:

This is not in any way to defend kettling, which restricts basic freedoms of movement and protest. Being kettled is a deeply frustrating experience. You are penned into a small area with thousands of other protesters for hours on end, with no access to toilets or provisions and little to no knowledge of when the police will let you go. This repressive police technique should be abolished.

However, the emergence of kettling does not reflect a new era of police ‘barbarism’ or ‘gross police brutality’, as some have claimed. Rather, the logic behind kettling seems to be an attempt by the authorities to adapt to a new kind of aimless protesting.

[. . .]

The rise of kettling speaks to changes within the authorities too. This tactic reveals a new desire amongst the police to avoid engaging with protesters directly, to avoid beating and controlling them as they might have tried to do in the past. Instead, the police have developed mostly risk-averse, hands-off tactics for demos, of which kettling is a prime example.

Kettling is really a damage-limitation exercise. The hope is that in pinning protesters into one small area they will eventually become sedate or fall asleep after they have let off enough steam. In a bizarre turn of events, the police now even hand out glossy brochures explaining to protesters what kettling is all about and why the police do it. Kettling is analogous to parents sending children to the ‘naughty step’ to get them to calm down.

Indeed, in the absence of any clear collective ideas, protesters have in many ways become reliant on kettling as a focal point for their radicalism. Protests have turned into games of cat-and-mouse, as youths try to avoid being penned in by the police, using Twitter to organise flash mobs and effectively playing peek-a-boo with the police. The protesters achieve a semblance of collectivity through the experience of being trapped together in a kettle.

April 18, 2011

Oh, stop worrying: everything is going according to the plan!

Filed under: Bureaucracy, Government, Liberty, USA — Tags: , , , , , — Nicholas @ 11:02

Julian Sanchez notes a fascinating parallel:

Batman’s archnemesis the Joker — played memorably by Heath Ledger in 2008′s blockbuster The Dark Knight — might seem like an improbable font of political wisdom, but it’s lately occurred to me that one of his more memorable lines from the film is surprisingly relevant to our national security policy:

You know what I’ve noticed? Nobody panics when things go “according to plan.” Even if the plan is horrifying! If, tomorrow, I tell the press that, like, a gang banger will get shot, or a truckload of soldiers will be blown up, nobody panics, because it’s all “part of the plan.”

There are, one hopes, limits. The latest in a string of videos from airport security to provoke online outrage shows a six-year-old girl being subjected to an invasive Transportation Security Administration patdown — including an agent feeling around in the waistband of the girl’s pants. I’m somewhat reassured that people don’t appear to be greatly mollified by TSA’s response:

A video taken of one of our officers patting down a six year-old has attracted quite a bit of attention. Some folks are asking if the proper procedures were followed. Yes. TSA has reviewed the incident and the security officer in the video followed the current standard operating procedures.

While I suppose it would be disturbing if individual agents were just improvising groping protocol on the fly (so to speak), the response suggests that TSA thinks our concerns should be assuaged once we’ve been reassured that everything is being done by the book — even if the book is horrifying. But in a sense, that’s the underlying idea behind all security theater: Show people that there’s a Plan, that procedures are in place, whether or not there’s any good evidence that the Plan actually makes us safer.

April 13, 2011

Ontario now closer to legal marijuana after court decision

Filed under: Cancon, Health, Law, Liberty — Tags: , , , — Nicholas @ 07:30

This news was rather unexpected (that is, I didn’t expect it):

Ontario is one step closer to the legalization of marijuana after the Ontario Superior Court struck down two key parts of the Controlled Drugs and Substances Act that prohibit the possession and production of pot.

The court declared the rules that govern medical marijuana access and the prohibitions laid out in Sections 4 and 7 of the act “constitutionally invalid and of no force and effect” on Monday, effectively paving the way for legalization.

If the government does not respond within 90 days with a successful delay or re-regulation of marijuana, the drug will be legal to possess and produce in Ontario, where the decision is binding.

This is great news for those who need pot for pain relief: even though medical marijuana has been theoretically available for years, in practical terms, many could not get their doctors to sign the necessary paperwork.

In what will be a very obscure reference to non-Ontarians, Andrew Coyne twittered, “A place to grow . . .”

Update: However, carbon counters may be less than impressed, as a new study claims that marijuana “grow ops” alone consume 1% of the energy of the US:

Stoners are helping destroy the planet. Not by excessive snacking, but thanks to the high-energy demands of indoor marijuana cultivation. So says a US Government policy analyst with a Puritanical streak and an EYE for a SHOUTY HEADLINE.

Evan Mills, who works at Lawrence Livermore Labs but conducted the study in his own time, estimates that indoor pot growing accounts for 1 per cent of energy usage in the United States, with each spliff representing two pounds of CO2 emission. Heavy.

About 32 per cent of energy in the cultivation process is used by lighting equipment, including motorised lamp rails; 26 per cent by ventilation systems and dehumidifiers; 18 per cent by air conditioning; and the rest… uh, we can’t remember.

So, on current trends, just as the drug war heaves its final dying breath and marijuana is legalized in the United States, it’ll be banned under Green economy rules, right?

April 12, 2011

Bolivia to pass laws giving “nature” equal rights with humans

Filed under: Americas, Environment, Law — Tags: , , , , , — Nicholas @ 12:08

I had to check the date on this Guardian article, just to be sure it wasn’t an April Fools’ Day posting:

Bolivia is set to pass the world’s first laws granting all nature equal rights to humans. The Law of Mother Earth, now agreed by politicians and grassroots social groups, redefines the country’s rich mineral deposits as “blessings” and is expected to lead to radical new conservation and social measures to reduce pollution and control industry.

The country, which has been pilloried by the US and Britain in the UN climate talks for demanding steep carbon emission cuts, will establish 11 new rights for nature. They include: the right to life and to exist; the right to continue vital cycles and processes free from human alteration; the right to pure water and clean air; the right to balance; the right not to be polluted; and the right to not have cellular structure modified or genetically altered.

Controversially, it will also enshrine the right of nature “to not be affected by mega-infrastructure and development projects that affect the balance of ecosystems and the local inhabitant communities”.

I don’t know where the government is planning on moving all the Bolivians, because just by occupying the country, they’ll be violating these new rights on a moment-to-moment basis.

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