Charter Rights

The Niqab Debate

niqabWhat is a niqab? A niqab is a scarf used to cover a woman’s face except her eyes. Her breasts, hair, ears are covered with a separate scarf. This is different from the hijab which leaves the entire face exposed and burka which covers the entire body and leaves a mesh screen over the eyes to see through.

Ms. Ishaq, of Mississauga, Ontario continues her fight against the government to wear a niqab while swearing an oath of citizenship to become a Canadian. The Stephen Harper government banned this practice but Ms. Ishaq filed an appeal. In the appeal, the Federal court decided to lift the ban on the niqab as it violated government regulations.

Federal Judge Keith Boswell stated that it “interferes with a citizenship judge’s duty to allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath.”

His decision has resulted in significant debate among some devout Muslims.

Controversy

Devout Muslim and activist Raheel Raza, who currently serves on The Council for Muslims Facing Tomorrow, author of Their Jihad … Not my Jihad and an international activist for women’s rights, argues that the niqab has no connection to Islam. She went as far to state:

They’re the political flags of the Muslim Brotherhood, ISIS, the Taliban, al-Qaida and Saudi Arabia.” (http://tinyurl.com/pplxxll)

Ms. Raza goes on to inform Canadian judges that niqabs are not permitted in Pakistani courts. She supports this with the fact that in 2004, Chief Justice of the Peshawar High Court (PHC), Tariq Pervaiz Khan, had forbidden female attorneys from wearing face veils in courtrooms due to the fact that they couldn’t be identified, nor assist the court properly while wearing veils. He then went further to inform the women wearing niqabs that they are professionals and covering their faces is not a religious requirement.

Supporting these views is a scholar of Islamic history; Prof. Mohammad Qadeer of Queen’s University, Kingston, Ontario who informed the Globe and Mail:

“The argument about concealing one’s face as a religious obligation is contentious and is not backed by the evidence. In Western societies, the niqab also is a symbol of distrust for fellow citizens and a statement of self-segregation. The wearer of a face veil is conveying: ‘I am violated if you look at me.”(http://tinyurl.com/pplxxll)

FlagThe foundation for the Federal court decision was banning the niqab didn’t “allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath.” However, these devout Muslims and activists are arguing no rights would be violated as it is not a religious practice.

Conversely, Muslims who identify with Ms. Ishaq clearly disagree as they interpret the religion scriptures to state otherwise.

The opposing counsel is determined to take the matter to the Supreme Court of Canada in hopes to overturn the appeal.

This decision will be a defining case that will help shape future legislation and Canadian history.

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Points of Discussion:

1. What are your thoughts? What points do you agree/disagree with?

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Police Can’t Return Stolen iMac

With technology advancements occurring every day, it is no shock that the legal realm is having difficulty keeping up. There are many instances where the legal system is just not able to help a victim of technology related crimes; such is the case for Mohamed Tahar.

Mohamed Tahar resides in Montreal and lives in an apartment building with his family. Due to a small fire, all residents of the apartment were asked to evacuate the premises. Tahar was put into a hotel with his family. Upon returning home, Tahar found that his apartment had been broken in to. The burglar had taken his wife’s gold jewelry and his Mac computer along with numerous computer accessories.

Naturally, being the technological wizard he is, Tahar decided to track down his Mac via remote computer tracking tools specifically through iCloud’s Find My Mac tool. He then chose to remotely lock his computer and ask the thief to return his belongings. However, his attempt was futile.

Tahar then chose to approach the police with this his concerns in hopes that they could return his computer and other belongings to him after he had pinpointed the apartment building where his belongings were. Tahar faced a predicament when the officers advised him that their hands were tied.

You might wondering, how can someone do all the work involved in tracking a burglar and then be told that they are out of luck?

Canadian LawEvery_Canadian_Needs_A_Copy

Although Tahar was able to pinpoint the apartment building in which the burglar had supposedly stored his stolen items, iCloud did not specify the apartment number the burglar resided in or an IP address.

Why couldn’t the police officers just go into every apartment and search for the items? Simple, because it would violate an individual’s Charter rights to be protected against illegal search.

Why didn’t the police just get a warrant to search the apartments? In order to get a warrant, the police would require a judge’s approval for a warrant to inspect every apartment in the building. A judge would not grant a warrant that would result in countless innocent individuals having their homes searched. Also, the judge would need proof that the burglar resides in the specified apartment building.

What’s the issue there? Assuming the iMac and jewelry are found in one of the apartments, it does not establish proof that the individual in possession of the iMac is in fact the burglar as it possible that the possessor merely unknowingly bought the iMac from the burglar.

Where does this leave Tahar?

Tahar is hoping to obtain his belongings at some point. His wife’s jewelry has significant sentimental value and he wishes for it to be returned. He continues to check pawn shops, hoping that he might come across it.

Although the legal realm is having trouble staying up with technological advancements, citizens should continue to bring their findings and information regarding legal issues to the police. Information helps the authorities assess how to proceed and build a case.

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Points of discussion:

1. If you lived in the apartment would you be willing to have the police search your home?

2. Were you surprised by any of the information shared?

Carding- Necessary Or Racist?

What is carding?

Carding is also often referred to as street checks. The process involves officers randomly stopping individuals who are not suspected of a crime, asking for their ID and adding the individuals’ names along with their personal information to a police databank.

Critics argue that this practice is an example of systemic racism. Critics go on to argue that the practice violates the privacy of innocent individuals and can result in future legal issues such as police using the information to target individuals and police checks.  Toronto’s Mayor, John Tory is against the process and promised to address the issue at the Ontario Association of Police Chiefs conference in Mississauga this Thursday.

Individual Case

George “Knia” Singh has taken issue with this practice and chosen to pursue legal action. He identifies himself as an African Canadian born in Toronto.  Singh through his lawyer has filed an application for judicial review of carding as he argues it violates his Charter rights.  Judicial review allows the courts to assess if a law is adhering or violating higher level laws/authority (i.e.  Charter rights) and alter the law if need be.

Singh has been stopped multiple times due to carding practices and would like the process to stop. He argues that the process is racist and he would like future generations to not have to worry about such matters.  Recent research has found that brown and black males are more likely to be carded than any other groups. Some argue that this has resulted in black youths distrusting police.

Supporters

Chief Saunders has argued that the practice is necessary and effective. He openly supports the practice which has resulted in significant backlash among Torontonians.  He argues that it can enhance national safety when done right. It is also lawful when done right. He went on to argue that stops are “intelligence based”  and help explore criminal behaviour within the community.

What are some possible outcomes from Thursday’s meeting?

Some possible changes to the existing practice may include: limiting how long police can keep personal information; police may have to give a “receipt” to individuals when carding them that specify the information that was collected; police officers may be required to inform individuals that the interaction is voluntary and they can refuse to provide officers with information when being carded.  Another possible approach may be to outline particular situations in which carding can be carried out.  Currently, the Toronto police carding policy merely states officers require a “valid public safety purpose” to card individuals.
Taking it to the next level

NDP MPP Jagmeet Singh wants to take the matter even further; he wants this practice to stop all across the province.  He shares his story of being targeted as a turban wearing and full bearded Sikh man in Windsor as a student and again years later while riding his bike in Toronto. Unfortunately, this practice continues even after he was elected.  Mr. Singh wants minorities to know that they belong in Canada and are accepted.

Points of discussion:

1. What is your stance on carding? Do you think it is effective or racist?

2. Should the practice of carding be revoked?

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Canadian Reality vs. American Dramas

Who doesn’t love a good legal drama? Most of us have at least one legal show we love to watch, may it be Suits, The Good Wife, Scandal, Law and Order or some other show. However, as Canadians we often forget that these shows are American based; hence they do not reflect the Canadian legal system.  Here are some key conflicting facts in the American and Canadian legal system.

1. When being arrested, Canadian’s do not have “Miranda rights” – we are read our Charter rights. This is a common misconception among Canadians.  Violation of Miranda rights is a reoccurring theme in American television series and I believe many Canadians just picked up the terms without evaluating their applicability to Canadian law. So if you tell an officer they have to read you your Miranda rights while being arrested and they say they don’t, they aren’t lying.

2. Canadians cannot “plead the fifth”. Our equivalent of pleading the fifth is s.11 of the Charter that states

“11. Any person charged with an offence has the right …
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence”

I know it may not be as fun to say, but it’s better to be right than dramatic in court.

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3. Court conduct in Canada is far more formal than in the U.S. Canadians refer to the opposing counsel as “my friend”… which is not the case in America.  Also, in Canadian courts, legal practitioners do not speak informally to the judge or their counsel.

4. Unlike in the U.S, in Canada judges are not assigned cases.  When you watch an American legal show you will often see one judge throughout the entire case from beginning to end.  In Canada, cases are signed to courts thus any judge sitting in the court can hear a related matter. Accordingly, multiple judges may hear and decide on your proceeding motions throughout the course of a civil matter.

5. In Canada, fully licensed paralegals are permitted to have their own practices and do not require lawyer supervision. In the United States this is not the case as lawyers are held liable for their paralegals mistakes.

6. In Canada, jury trials are rare for civil law matters except for personal injury and insurance litigation.  In the U.S juries play a larger role in civil cases than they do in Canada.

7. A life sentence in Canada is 25 years.  In the U.S a life sentence is carried out for the entire natural life of the inmate.prison

8. Compensation for damages in Canada is not as high as it is in the U.S. When you watch American legal shows you will often find the winning party is awarded an excessive amount in damages, this is not the case in Canada – even for pain and suffering, it is rare.

9. Copyright laws in Canada extend for the life of the individual plus an additional 50 years after they pass.  Conversely, the U.S extends copyright duration to the lifespan of the author and an additional 70 years after the death of the author.

10. Employment law is regulated largely at provincial level in Canada and the other small portion is regulated at the federal level.  In the U.S employment law is regulated by a National Labor Relations Board which governs the nation’s unionized workforce.american

11. In Canada, an employer must accommodate an employee with a disability until a point of “undue hardship”.  Conversely, in the U.S, there is a lower financial threshold that allows an employer to remove an employee.

12. In Canada the losing party is awarded costs which include disbursements and a portion of the lawyers’ fees.  Furthermore, if the losing party refused a reasonable offer prior to the case being settled and unnecessarily prolonged the process they cost of awards maybe increased in favour of the winning party.

Which legal difference surprised you the most? What was your reaction after reading this post? Make sure you share it in the comments!!

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