Thursday, January 27, 2005

A Missive to Letter Writing Law Professors

Since the professors who are questioning Stephen Harper's legal stance on the nothwithstanding clause were so kind to sign their names and post their letter on the internet, I decided that I would offer them the Vitor treatment and run their names through Elections Canada's Contributor Search. The following names appeared as contributors, Elections Canada does not show titles and affiliation those are taken from the letter itself. I'll allow it may be a coincidence that exactly the same name comes up when run through Elections Canada, however, I think number of names that come up illustrate a pattern.

The results are rather unsurprising. Of 134 names on the list 21 are contributors to either the Liberal or NDP Party.

1. Professor Jennifer Bankier, Faculty of Law, Dalhousie University - $880 to the NDP

2. Professor Jeff Berryman, Faculty of Law, University of Windsor - $150 to the Liberal Party of Canada

3. Professor Susan Boyd, Faculty of Law, University of British Columbia - $700 to the NDP

4. Professor Robert J. Currie, Faculty of Law, Dalhousie University - $1000 to the Liberal Party of Canada

5. Dean Ronald Daniels, Faculty of Law, University of Toronto - $436.84 to the Liberal Party of Canada

6. Professor Donna Greschner, College of Law, University of Saskatchewan - $500 to the NDP

7. Professeure Nicole LaViolette, Common Law, Université d'Ottawa - $225 to the NDP

8. Professor Patrick Macklem, Faculty of Law, University of Toronto - $200 to the NDP

9. Professor Kathleen Mahoney, Faculty of Law, University of Calgary (Kathleen Mahoney Consulting Ltd.) - $362 to the Liberal Party of Canada

10. Professor Brian M. Mazer, Faculty of Law, University of Windsor - $1160 to the NDP

11. Professor Errol Mendes, Faculty of Law, University of Ottawa - $4366.19 to the Liberal Party of Canada

12. Professor Armand de Mestral, Faculty of Law, McGill University - $369.39 to the Liberal Party of Canada

13. Professor Mayo Moran, Faculty of Law, University of Toronto - $460 to the NDP

14. Professor Jennifer Nedelsky, Faculty of Law, University of Toronto - $1,450 to the NDP

15. Doyen Daniel Proulx, Faculté de droit, Université de Sherbrooke - $1,000 to the Liberal Party of Canada

16. Professor René Provost, Faculty of Law, McGill University - $365.18 to the Liberal Party of Canada

17. Professor Denise Réaume, Faculty of Law, University of Toronto - $3525 to the NDP

18. Professeur Alain Roy, Faculté de droit, Université de Montréal - $624.15 to the Liberal Party of Canada

19. Professor Daniel Soberman, Faculty of Law, Queen’s University - $400 to the Liberal Party of Canada

20. Professor Claire Young, Faculty of Law, University of British Columbia - $180 to the NDP

21. Professor Margot Young, Faculty of Law, University of British Columbia - $250 to the NDP

As for the rest of the signators, I think we can determine where they stand by the company they keep. I'm sure the academy was just dying to speak out now because our position was "dishonest". Far more likely because "it might be popular". I don't think these professors have been entirely forthcoming about their motivations for producing this letter..

(welcome Small Dead Animals readers, what does one call this being kateapulted? as well as readers of What it takes to win - by the way Vitor "the vitor treatment" is now a euphamism for searching for party backers and bias in data, I started it and The Hack has picked it up..)

4 Comments:

At 10:00 PM, Blogger Patrick ASD said...

Chris
Let me check that I'm understanding your research technique correctly. Take the names of the people who signed the letter, drop them into the Elections Canada contribution search and look for matches.

If that is all there is to it then I think you need to be a little more forthcoming about the possibility of false positives, for example a quick search on White Pages for Susan Boyd, a name you include in your list, brings up ten Susan Boyds in Canada. How do you know that the Susan Boyd in the EC database is the same as the one on the letter and not one of the other nine?

You do say in your post here that 'I'll allow it may be a coincidence' regarding the name matches, but you make no mention of that in the Blogs Canada thread where you posted the same information.

Also you say 'As for the rest of the signators, I think we can determine where they stand by the company they keep.' Well as Jim Elve points out in the BC thread the 21 names you listed out of a total of 134 means just 16% can be shown to have non-conservative political affiliations by your method, even if every one of the matches you are assuming is actually correct. I personally wouldn't be happy with assuming the political leanings of the other 84% on the basis of that, but you apparently are.

Here is another way of looking at the issue. Perhaps you are right and every single one of the legal experts who signed this letter is a lifelong Liberal or NDP voter, then so what? They are legal experts and they are making an argument in legal terms against Stephen Harper's position, which is (as I understand it) that a law to protect the traditional definition of marriage could be enacted without resorting to the not withstanding clause. So perhaps all 134 of these experts in the Canadian legal system did sign this letter because they want to harm Harper and the Conservatives, it is certainly possible. But here's the point, they are legal experts and this is their publicly stated opinion that Harper is wrong when he claims that the not withstanding clause can be avoided while still effectively protecting the existing definition of mariage. I’m really not particularly interested in the motives of those professors, but I am interested in the fact that it is their expert opinion that Harper is either being dishonest or he’s just plain wrong – and I haven’t seen anything in your arguments that addresses that point.

 
At 1:00 AM, Blogger Chris said...

Patrick,

Firstly, thank you for your inquiry and I shall do my best to explain your concerns.

The methodology I employed by running these names through the Elections Canada database is by no means foolproof. Given that only recently the adresses of donors were required in order to make these donations it would be rather difficult to emphatically rule out the possibility that it is someone else.

However, in several cases I can at least state that the donations were registered as being directed to the riding which was adjacent to where the professor was employed or where they recieved a degree.

However, given the size of some of the donations it would seem unreasonable to assume that there are many people of that same name with a economic background to offer so large a sum. Furthermore, I personally know one of the signators and judging by his political affiliation and the sums of money involved I would find it a remarkable coincidence if the people in question were not those who appear on the list.

As to the reasons I believe the law professors to be pushing an agenda, its quite simple. The last time the question of whether the definition of marriage was constitutional came before the Supreme Court of Canada in 1995 they ruled on it being completely constitutional. This was in a case called Egan v. Canada.

Given this ruling and the legal principle of stare decisis, or being bound by the past implying treating like cases alike, the court should at least theoretically simply affirm their past judgements and uphold the traditional definition of marriage as constitutional. I would think this would be even more likely given the position Harper has taken to be accomodating to homosexual couples, simply preserving the term marriage as being a heterosexual institution.

Having read some of the judgements by the CA of the provinces a number of them did not even consider Egan as a precident in their rulings or seek to distinguish their cases from it. This is quite simply an error at law and should have been grounds for appeal. However, the Liberal government choose not too essentially hoping that through a reference they could have the Supreme Court do their dirty work for them, as opposed to exposing themselves to the risk of the courts confirming the traditional definition of marriage as constitutional once more, forcing the Liberals to expose themselves as the willing backers of changing the instutition.

Given that the last ruling of the Supreme Court not only reaffirms Mr.Harper's position, and given that I'm personally dubious of the motives of the Professors writing this letter, (I don't feel off base claiming that the University is not generally any friend to the Conservative Party or its ideological underpinnings) I feel its dishonest to state that Mr.Harper's position is unconstitutional as the last ruling by the Supreme Court simply affirmed the position he's claiming. Therefore, I feel the predictions of a "certain" ruling by the professors in question are driven by their own ideological convictions and neglect to take into account that there are convincing reasons that the court could very well rule in the opposite direction.

That being said I also feel that given the ceding of benifets and the other entailments of civil unions would seriously weaken the case for gay marriage as it would be more difficult to establish their suffering any sort of harm.

The only way one can be "certain" of the way the court is ruling in such future cases is if you believe the Supreme Court to be ideologically driven and secure itself. This itself would be an indictment, as the caselaw does not lend itself to any such certainty.

I hope that clarifies, I believe I mentioned some of these things in earlier posts. Though I didn't get into the caselaw itself as that tends to be something of interest mostly to law students like myself and other lawyers.

Regards, Chris

 
At 11:41 AM, Blogger Patrick ASD said...

Chris
Thanks for your response. IACNAL (I Am Certainly Not A Lawyer) but I have read up on Egan v. Canada .

You said 'The last time the question of whether the definition of marriage was constitutional came before the Supreme Court of Canada in 1995 they ruled on it being completely constitutional. This was in a case called Egan v. Canada.'

I didn't read Egan v. Canada as being quite that unambiguous on the subject. In fact, four of the nine members of the court were of the opinion that to some extent or another the limitation of the benefits in question to opposite sex couples only was unconstitutional. Not necessarily the same thing as saying that opposite sex only marriage is unconstitutional, but it does seem to suggest this is not straight forward issue.

But I'm not going to get too deep into the legal niceties here. Not least because as I have said NAL, so I trust you as a law student would be able to run circles around me in that arena (you would want a refund on your tuition if not).

To get back to firmer ground. Although your list of which of the law professors who signed the open letter may also be Liberal/NDP donors is an interesting factor to consider, I do think that you should have been forthcoming about its potential for error when posting it to the Blogs Canada discussion. Your statement there that 'The signators from my university are readily identified for left wing political views, and the fact substantial number appear as donors for the Liberal and NDP party confirms that's hardly a mere coincidence.' Is rather different from 'The methodology I employed by running these names through the Elections Canada database is by no means foolproof.' Which you admit here.

 
At 4:12 PM, Blogger Chris said...

I believe I simply copied and pasted the list into the blogs canada post as opposed to the earlier qualification. This was likely simply a matter of unnecessary haste on my part.

As for the ruling in Egan, its generally quite clear. The majority held that marriage was constitutional as it was traditionally defined with a half the minority saying it was perhaps descriminatory but it was justified under reasonable limitations. A few justices disagreed. However, on the whole 6 out of 9 clearly stated that the traditional definition of marriage was constitutional when they could have chose to strike it down if they felt so inclined.

 

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