BCCLA News July 2004 9

the democratic JULY 2004 / VOLUME 38 NUMBER 2 JOURNAL OF THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION The BCCLA acknowledges the generous support of the Law Foundation of BC INSIDE 3 STUDENTS’ RIGHTS Drug Dogs in Abbortsford Schools SUPREME COURT OF CANADA PHOTO / PHILIPPE LANDREVILLE INC. BCCLA POSITION PAPER 4 CASE UPDATES • Arar Inquiry Judicial Appointments to • Same-Sex Marriage • Strip Searches the Supreme Court of Canada • Panhandling The following is an excerpt from the BCCLA’s new position on Supreme Court of Canada appointments. The complete text can be found at www.bccla.org/positions/dueprocess/04judicial appointments.htm. 6 BCCLA MARIJUANA CONFERENCE Justices Arbour and Iacobucci recently announced that they are retiring from the Supreme Court of Canada, positions that must be filled by summer 2004 for the Court to address its busy fall 13 MUSLIM COMMUNITY schedule. This news, coupled with Prime Minister Martin’s promise to reform the appointment BCCLA Launches process as part of his efforts to address the “democratic deficit,” and Conservative Party leader Outreach Project Stephen Harper’s past criticisms of the Court and court appointments generally, suggests that reform is coming to the appointment process, whether one supports reform or not. 15 TIME FOR LIBERTY This paper suggests that there are sound ant to this constitutional authority, the federal CAMPAIGN and compelling reasons of principle to sup- government has promulgated the Supreme Your Pledges, port reform but that those same principles Court Act. Under section 4(2) of this legisla- Our Thanks also indicate that some types of reforms are tion, judges are appointed by the Governor in acceptable while others are not. Council (i.e. the Cabinet). 16 BOARD AND STAFF There is some confusion about who actu- UPDATES I. The Current Process for Appointments ally appoints judges to the Supreme Court of to the Supreme Court of Canada Canada. While formally, it is the entire Cabi- Formally, the legal source for the existence of net, constitutional scholar Peter Hogg sug- the Supreme Court of Canada resides in the gests that the Prime Minister is responsible for Constitution Act, 1867 (formerly known as the appointing the Chief Justice of the Supreme British North America Act). Under section 101 Court and will be involved in the selection of of this Act, the Parliament of Canada has the “puisne” (i.e. sitting judges) of the Court BC Civil Liberties legal authority to provide “for the Constitu- along with the Minister of Justice. As a matter Association tion, Maintenance, and Organization of a of law, at least three sitting judges must come Protecting the freedoms of General Court of Appeal for Canada.” Pursu- continued on page 8 British Columbians since 1963 THE DEVILISH ADVOCATE / A message from president John Russell RENOVATING DEMOCRACY I recently had a direct confrontation with democracy impressed me most was that all affected parties had a that reminded me of its enduring attractions and full opportunity to contribute to the deliberations. No value. one’s time was cut short, and when it came time to I am not referring to the recent federal election, vote, everyone had had their say and it certainly ap- which cynics will regard as a tough case for defending peared that an informed decision was possible. democracy’s virtues. No, I am referring to In our own case, our next door neighbour showed an apparently tougher case — a hearing up unexpectedly with his family in tow to complain before Vancouver City’s Board of Variance that our proposal would increase the shade in his to add about 50 square feet to our home’s back yard and would “wreck” his privacy. We re- upstairs so that a second bathroom could sponded that the addition would be below the crest of be installed at close range from the family the roof and so should have virtually no impact on sleeping quarters. shade. The window on the plan did not directly over- The decision should have been a “no- look their house, and in any event would be opaque brainer,” according to our architect. I was to ensure our own privacy (it is a bathroom after warned, however, to bring a book to the all...). Decision: unanimous in our favour. BCCLA president hearing, since the Board rarely meets its There are two main virtues of democracy evident John Russell timetable. here. The first one is that it is probably the best The wheels of democracy did in fact grind slowly mechanism humans have yet devised for making in- the day of the hearing. However, my book was no formed, morally sound decisions where there are match for the human dramas on display in front of many interests to assess. Make no mistake, these are me, as different appellants made their cases for varying moral judgments. There are important competing building restrictions on their property. One home- interests at stake, and they must be heard properly to owner wished to design a house on a lot with a steep be assessed fairly and impartially. A decision then grade, so that the main living area was in the base- requires the best judgment each voter can make based ment. This would allow his elderly mother to avoid on the available information. climbing stairs and to have easier street access. The The other advantage is that such a process shows design, however, increased the bulk and height of the respect for the parties who are affected by the deci- house in ways that mightily upset his neighbours. sion. Besides the intrinsic merits of that, it contributes Another family simply wanted to move a side door to social stability. My neighbour, as far as I could tell, onto the front of the house so that their kitchen and held no hard feelings. He may even have been per- family room were more functional. We desperately suaded by the arguments. In any event, he knew that needed another bathroom. he had been treated fairly even if he disagreed with Seen up close, it was easy to see that these were not the decision. We are still on speaking terms. small things in people’s lives. What was particularly It is easy to be cynical about the partisan demo- impressive, even heartening, was that the process and cratic bodies that we elect. But we need to be re- the decision-makers themselves clearly demonstrated minded why we have chosen to be governed in this respect for the importance of these matters to all the way and to temper cynicism with commitment to affected individuals. improving our democratic institutions where they The process is exemplary on paper. It requires ap- need improvement. It’s good to be reminded of this as pellants’ submissions in advance, notification of neigh- we confront some of the more frustrating realities of bours, opportunities for written and oral submissions, democracy on its larger stages. input from city planners, questions from Board mem- bers, opportunities for closing remarks, and then a vote by an appointed non-partisan board. Of course, this is merely process, and it could be 2 undermined easily. But that did not happen. What JOHN RUSSELL, PRESIDENT STUDENTS’ RIGHTS Abbotsford School Board “policing” student drug offences British Columbia Civil Liberties Association Abbotsford School Board is seeking to es- both aspects of this proposal. One issue is 425 – 815 West Hastings Street tablish a new drug policy that would allow the inaccuracy of performance by drug Vancouver, British Columbia searches of lockers by drug detection dogs detection dogs. Research conducted on dog Canada V6C 1B4 and create “Drug Free Zones” within a two- sniff search reliability has determined that Phone: (604) 687-2919 block radius of schools. dog/handler teams with a 98 percent accu- E-mail: [email protected] Although it has yet to be officially ap- racy rate have a correct detection rate of Web: www.bccla.org proved by the School Board, the Abbotsford less than 20 percent – that is, 80 percent of Office hours: 9 a.m. to 4:30 p.m. trustee who proposed the policy has indi- alerts would be false. This unreasonable Monday to Friday cated that locker searches would be amount of false positives would result in an Board of Directors “suspicionless.” Drug dogs hired from pri- unreasonable number of innocent students John Russell, President vate security firms would be brought in subjected to the indignity of being singled John Dixon, Vice President every three or four weeks to conduct ran- out and searched. Alan Rowan, Treasurer dom “sniffs” of school hallways. Drug-sniffing dogs would also create a Jason Gratl, Secretary The School Board also proposes – incor- “policing” atmosphere in schools, compro- Dale Beyerstein, Sam Black, rectly – that federal Crown Counsel would mising both students’ privacy rights and Warren Bourgeois, Alister Browne, seek double and triple the normal sentences their level of comfort within their school Jamie Cameron, Larry Cohen, for those caught trafficking or in possession environment. The dogs’ presence could be Tim Christie, Ann Curry, Greg Delbigio, Avigail Eisenberg, of narcotics within its “Drug Free Zones.” highly distressing to students and staff trau- Michael Feld, Hamar Foster, There is no authorization in the Criminal matized by past encounters with canines. Tom Gore, Jason Gratl, Code, the Controlled Drug and Substances Act, The wish to impose severe penalties for Conrad Hadland, Laura Huey, or the Youth Criminal Justice Act for double narcotics-related offences exemplifies the Andrew Irvine, Craig Jones, Stephen Katz, John Kibblewhite, and triple penalties for drug offences near failed American “war on drugs” mentality Ross Lambertson, Ed Levy, schools. Indeed, the Youth Criminal Justice rather than a rehabilitative approach to Mary McDonald, John J.

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