Day: May 10, 2019

Taking one for Team Trump

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Norm! With his legal troubles behind him, Vice-Admiral Mark Norman is ready to return to his old stomping grounds. The question is what should the Canadian military do with him—give him his old job as second-in-command (a position currently filled by someone else) or find another position that doesn’t seem like a demotion (which doesn’t really exist)? The decision about Norman’s future is ultimately up to defence chief Gen. Jonathan Vance, but as one former senior official with the Department of National Defence told Canadian Press, we are in “unprecedented” territory. (Canadian Press)

It worked for him: Borrowing a page from Norman’s legal defence, lawyers for Meng Wanzhou, the Chinese telecom executive detained on a U.S. arrest warrant in Vancouver, said at a hearing Thursday that her arrest was politically motivated and that the federal government is withholding documents important to her defence. The judge hearing the extradition case agreed to delay it until after a separate hearing about document disclosure in September, meaning extradition proceedings might not begin until at least January. (Globe and Mail)

The judge also allowed Meng to move into her second $13-million home. Now she’ll be neighbours with the U.S. consul-general.

Meanwhile, two Canadians remain locked up in China in retaliation for Meng’s arrest, without access to lawyers, family members or sunlight. In a phone call with President Donald Trump on Thursday, Prime Minister Justin Trudeau raised the two men’s cases, however it’s not yet known how Trump responded. (CBC News)

Trudeau’s message was no doubt similar to the one delivered by a delegation of MPs from the international trade committee to members of the U.S. Congress: “So here again, little brother Canada, we’re taking a hit for them big time, right, and that’s not only in our economy with canola, pork and various things, but we have Canadian citizens that are detained illegally and under a bad circumstance.” (Global News)

Double standard?: Dean Del Mastro has a question for Elections Canada—why did he serve one month in prison in 2015 for failing to report a $21,000 contribution he made to his own campaign, when SNC-Lavalin was allowed to avoid prosecution in 2016 for participating in an illegal scheme years earlier in which it reimbursed employees and executives who donated $118,000 to the Liberals. The former Conservative MP was back on the Hill for a press conference Thursday, where he accused Canada’s elections commissioner Yves Cote of holding a “personal vendetta” against him. (Canadian Press)

Legend rising: In the same way Alberta punched above its weight in producing iconic premiers like Peter Lougheed and Ralph Klein, another legend could be in the making with the man who just took power in the province, writes Jen Gerson in the latest print issue of Maclean’s. It’s just not clear if history will regard Premier Jason Kenney as a hero or a villain. (Maclean’s)

NAFTA 2.0 can’t get no love: Unless the USMCA / CUSMA trade deal gets some serious attention fast, it’s doomed, writes Allen Abel in his latest dispatch from Washington:

At her weekly press briefing on Thursday, Speaker Nancy Pelosi enumerated drug prices, maternal mortality and disaster assistance among her most urgent priorities, in addition to her tantalizingly slow walking of Trump’s impeachment, pretending that “it has nothing to do with politics—it has to do with e pluribus unum,” and reminding reporters that “the Nixon experience was months before even the Republicans had to go to the president and say, ‘It’s over.’ ” So New NAFTA is not exactly at the zenith of her to-do list. (Maclean’s)

Booted: Lynn Beyak was suspended from the Senate for the remainder of this parliamentary session for refusing to remove letters posted to her website that have been condemned as racist. Of course she made it about a grandiose free speech fight: “This type of penalty is totalitarian and alien to the tradition of free nations like Canada. Parliamentarians have not had their freedom of expression threatened like this since the events that led to the enactment of the Bill of Rights by the English Parliament on December 16, 1689.” (CBC News)

Unexplained: In true Ottawa fashion no one is saying much about why Supreme Court Justice Clement Gascon vanished for several hours on Wednesday. Police had issued an alert that Gascon was missing, then revealed he’d been found without providing any details. La Presse reported he was in an Ottawa hospital and his family said in a statement he was “in good health.” As for the Supreme Court itself, it won’t discuss his absence, but says it has “full confidence” that the reason for his disappearance won’t affect his work. Last month Gascon said he will step down in September, citing personal and family reasons. (Canadian Press)

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By The Wall of Law May 10, 2019 Off

Federal judges find retirement offers easy way out of probes

WASHINGTON — The fastest way for federal judges facing investigation by their peers to make the inquiry go away is to utter two words: “I quit.”

That’s how appellate judges Maryanne Trump Barry and Alex Kozinski ended investigations into complaints that Barry participated in fraudulent tax schemes and Kozinski sexually harassed women. Barry is the older sister of President Donald Trump.

And because they’re older than 65, and with more than 15 years as federal judges, Barry and Kozinski can collect their annual salary, roughly $220,000 when they retired, for the rest of their lives.

Panels of judges across the country have concluded that they have no authority to investigate a judge who has stepped down from the bench. Similar reasoning led judges to dismiss complaints against Supreme Court Justice Brett Kavanaugh stemming from his confirmation hearing last year, while he was an appeals court judge. The complaints challenge the accuracy of his testimony, including his angry denial of an allegation he sexually assaulted a woman when they were teenagers. Supreme Court justices are not covered by the 1980 law governing judicial misconduct. The Kavanaugh dismissals are being appealed.

The dismissals have led to calls to change the law to bolster faith in the judiciary and provide a full accounting that would either show complaints to be valid or poke holes in them. Other lawyers believe the law already allows investigations to continue and that judges are misreading it.

Gabe Roth, head of the court transparency group Fix The Court, said he is trying to persuade members of Congress to take on the issue.

“The idea that there’s a way to game the system doesn’t give you faith in the impartiality of the judiciary. It’s the opposite of what we expect in our judges and justices,” Roth said.

But Arthur Hellman, an expert on judicial ethics at the University of Pittsburgh, said that often the most pressing concern is to get a judge out of the courtroom. The current arrangement serves that purpose, Hellman said.

“It’s understandable that people are unhappy when they see a resignation that leaves the matter really unresolved in many ways, or at least without an investigation that tells us what happened. But in many of the instances, the present system…does have an important virtue in that it gets judges in whom the public has lost confidence off the bench,” Hellman said.

Allowing investigations to continue after retirement could create a perverse incentive, he said. “If there’s going to be an investigation anyway, why not fight it through to the end?” Hellman said.

Kozinski, a prominent judge who served more than 30 years on the 9th U.S. Circuit Court of Appeals, has said he initially resolved to do just that after several female former law clerks and colleagues accused him of sexual misconduct that included touching, inappropriate sexual comments and forced viewings of pornography in his chambers. But he retired abruptly, after an inquiry was launched and more women came forward with accusations. His retirement ended the investigation.

Barry’s retirement in February ended her 36-year career as a federal judge and the inquiry into complaints that were based on a New York Times report that she participated in Trump family schemes to dodge taxes. An April 1 order from a panel of federal judges looking into the complaints said the complaint process was meant to deal with problems that could interfere with the “effective and expeditious” administration of court business. Barry’s retirement means she can no longer perform any judicial duties and thus can no longer be investigated, the order said. She had already stopped hearing cases in 2017, when her brother became president.

Both Barry and Kozinski were old enough and experienced enough to retire with their full salary.

Richard Cebull, at one time the chief federal district judge in Montana, was less than a year shy of his judicial pension when the Great Falls Tribune in 2012 revealed that Cebull had sent a racist joke involving President Barack Obama from his official email account.

The outcry was immediate, and Cebull was among those requesting an investigation, but the judge waited more than a year before he retired, by which time he had become eligible to receive his judicial salary for life.

An investigation by judges in the Western U.S., led by Kozinski, found that Cebull had sent hundreds of inappropriate emails, dealing with race, religion, gender and sexual orientation. “Whether cast as jokes or serious commentary, the emails showed disdain and disrespect for African Americans, Native Americans and Hispanics, especially those who are not in the United States legally,” the judges wrote. Other emails “showed disdain for certain faiths” or “were disparaging of women,” the judges wrote.

Even though the investigation had been completed, the investigative panel initially decided to keep the results secret, reasoning that Cebull’s retirement was the end of the matter.

But the ethics committee of the Judicial Conference, the governing body for the federal judiciary, ordered the results made public.

Barry, Cebull and Kozinski did not respond to requests for comment.

Among those who complained about Cebull and then objected to the decision not to make the results public was another federal judge. Judge Theodore McKee of the 3rd U.S. Circuit Court of Appeals in Philadelphia was also a longtime colleague of Barry’s.

McKee said he was satisfied with the outcome in Cebull’s case because the matter was investigated and the public could see the results. But McKee said he is opposed to any changes in the misconduct law.

“In this day and age, even with the best of intentions I get incredibly nervous with tinkering around with anything that could be deemed to be interference with judicial independence,” McKee said.

But Jeremy Bates, a New York lawyer who filed a complaint against Kavanaugh, said judges are mistakenly saying they have no authority to investigate when a judge retires or, in Kavanaugh’s case, is promoted. Bates is appealing the dismissal of his complaint to the main governing body of the federal judiciary. Bates argues that in many areas of the law, courts look at the facts at the time a lawsuit is filed to decide if they have the authority to hear it. Lawyers can’t avoid misconduct investigations merely by resigning, and there’s no reason judges should, either, Bates wrote.

In the Kavanaugh, Barry and Kozinski dismissals, the public “sees a pattern of high-ranking federal judges (and their partisans) evading misconduct complaints by altering the jurisdictional facts,” Bates wrote in an April 19 letter to the Judicial Conference’s committee on misconduct. Investigating a complaint even if a judge’s status changes would “prevent such evasions and abuses,” Bates wrote. The National Law Journal first reported appeals by Bates and others.

Cornell law professor Michael Dorf also has written that the investigating judges took too narrow a view of their authority. A full investigation also would reveal if other judges played any role in covering up misconduct by one of their peers. He noted in a posting on the website that many people described Kozinski’s alleged conduct toward women as an open secret.

Mark Sherman, The Associated Press

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Baby Archie Is Making History, But Is The World Ready To Change With Him?

On the same day an official royal photo of the newest little member of the monarchy featuring Meghan Markle’s mother, Doria Ragland, was heralded for symbolizing “multicultural Britain,” a BBC radio host was fired over a racist royal tweet.

Ragland is African-American, and her appearance in the viral photo was seen as Britain embracing modernity, much like Harry’s marriage to Markle, who gave birth Monday to Archie Harrison Mountbatten-Windsor — the first royal baby of mixed-race in contemporary times.

On Wednesday, Baker, a DJ and broadcaster, tweeted a photo of a well-dressed couple holding hands with a suited chimpanzee, which he captioned: “Royal baby leaves hospital.” The tweet, which has since been deleted, was swiftly criticized on social media.

For centuries, Black people have been dehumanized using similar comparative imagery and in racist slurs, in an attempt to perpetuate the notion that they are inherently inferior to white people (A well-known example: Michelle Obama was referred to as an ‘ape in heels‘ while she was still first lady of the United States). The racist trope is well documented.

What was this adult thinking when he tweeted that image?” said Marlene Koenig, an internationally recognized expert on British royalty. “It was beyond careless, it was an in-your-face-I-don’t-deny-I-am-a-racist tweet. I would like to say it was unkind, unprofessional, and the intent was to provoke, and that is what happened. Baker provoked his bosses and he is out. He needs to attend a sensitivity training course.”

“Unfortunately, there are far too many people who have serious issues with people of other races … I can hope that things will change,” said Koenig. “One couple can be an example … but change takes time, takes education, tolerance and understanding.”

WINDSOR, ENGLAND - MAY 08: Prince Harry, Duke of Sussex and Meghan, Duchess of Sussex, pose with their newborn son Prince Archie Harrison Mountbatten-Windsor during a photocall in St George's Hall at Windsor Castle on May 8, 2019 in Windsor, England. The Duchess of Sussex gave birth at 05:26 on Monday 06 May, 2019. (Photo by Dominic Lipinski - WPA Pool/Getty Images)

Meghan Markle, Duchess of Sussex and Prince Harry, Duke of Sussex, pose for a photo with their newborn baby son, Archie Harrison Mountbatten-Windsor, in St George's Hall at Windsor Castle in Windsor, west of London on May 8, 2019.

Bi-racial “Blacklash”

Apparently, a couple of years isn’t enough time for the change to happen. With a Black mother and white father, Meghan’s ethnicity quickly became a topic of conversation when she first hit the royal scene — and the scrutiny has often been unwelcome and racist.

After the royal engagement was announced, The Daily Mail publicized one of its stories with a tweet reading, “From slaves to royalty, Meghan Markle’s upwardly mobile family.” In 2016, the newspaper suggested that Markle was “(almost) straight outta Compton.”

“Obviously, 70 years ago, Meghan Markle would have been the kind of woman the Prince would have had for a mistress, not a wife,” said The Spectator.

“The behaviour of certain elements in the British press (the tabloids) has been inexcusable, especially in their constant barrage of criticism, throwing the word “protocol” into so many stories (when it’s not needed),” said Koenig, noting that stories have often referenced “protocol” in relation to Markle’s attire when protocol only refers to official state events in terms who sits where, who comes in first, and so on.

In an attempt to counter these racist tones, Harry criticized the press in a rare move, condemning the racial undertones of articles reporting on their courtship, notably after one commentator wrote that Markle would bring “rich and exotic DNA” to the Windsors.

However, despite the incidents of racism directed at Markle and now her baby, many others celebrated this royal union and viewed this newest royal baby as a real moment of significance.

Royal commentator Claudia Joseph told HuffPost Canada that this baby is largely important historically because it’s breaking new ground as the first African-American baby born into the royal family in contemporary times. (Some historians believe Queen Charlotte, who reigned from 1761 until 1818, may have been bi-racial, descending from a Black branch of the Portuguese royal house.)

Mixed messages

Still, others, especially those who have lived experience with racism and with multiracial heritage, aren’t so sure this baby really changes the game.

“Meghan Markle and her child have helped create a continued dialogue around the mixed-race experience and issues related to it. This is a positive, of course,” said Gina Oades, whose mother is Filipino and whose father is white of mixed European decent.

“However, a mixed woman and child in the royal family is not going to fix racism … There continues be deep-rooted, racist ideas in our world that surface when a racialized person is in the forefront.”

Born in Barrie, Ont., a small city north of Toronto, Oades was one of very few ethnic children at her school. Growing up mixed race wasn’t an issue for her, until she started school, that is.

“As a small child, I never thought about it until I went to school and kids started mocking me in a Chinese accent and taunting me because of my darker skin. I didn’t really identify myself as different until others did,” Oades told HuffPost Canada.

She said when growing up, her family didn’t talk about issues around being mixed race.

Without this dialogue at home, she said that she found the world of being a mixed-race person often difficult to navigate: she wasn’t Filipino enough and she wasn’t “just white.” These feelings of not quite fitting in were present even after she moved to Toronto, a much more diverse city. She created “Mixed in the Six” with Haan Palcu-Chang to help racially mixed Torontonians build community and connect with their own unique identities.

“As I’ve grown and evolved, I’ve started to put together the pieces of my identity on my own which has been a confusing yet beautiful journey,” said Oades. “I recently went on a solo trip to the Philippines where I connected to my roots, the people, and my family in ways I profoundly needed. It was a full circle moment.”

Growing up multiracial was also confusing for Richard Pierre, whose father is white Canadian and whose mother is Trinidadian. He carried this confusion with him into his adulthood, which prompted him to produce the short personal documentary, “What Are You?” which explores the lives of mixed-race people.

He said he experienced overt racism when he moved from Toronto to Sarnia, Ont.

“I was in Grade 10 when we moved to Sarnia for a short time and there was so much overt racism I didn’t know what to do,” said the Toronto-based director. “I would verbally fight back and refute racial falsehoods or just tell people to shut up. But I also encountered some racist bullying that was really beyond my ability to fight and my school did nothing about it. Luckily, eventually we came back to Toronto.”

He has come to embrace his mixed heritage and welcomes baby Archie into not only the world, but the multiracial world, with the hope that the significance of this baby will resonate and help normalize the experience of multiracial folks.

“After a long line of monoracial white people, there’s finally going to be this child who is different. I think that’s a big deal for any family and even more so for such a famous family. Hopefully, it will shift people’s perceptions about Black people and about racialized people in general,” said Pierre.

Casey Palmer, who is of Jamaican ancestry, is raising mixed-race children with his wife of Dutch heritage, and also celebrates a multiracial baby in the royal family.

“I’m a Black guy who is living in a very diverse world now so my first thought was, ‘We made it, good job Meghan,'” he told HuffPost Canada.

Palmer said he and his wife plan to expose their children to both of their cultures, while having ongoing discussions about being mixed-race.

It’s a plan of action Somali-Italian-Canadian Annita Ali is all about.

“My advice for parents of mixed-raced children is to prepare them for the outside world,” Ali told HuffPost Canada. “Make sure you teach them to embrace both backgrounds and love themselves for who they are. It’s important for a mixed-raced child to understand that they never have to pick one side — because they are both.”

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By The Wall of Law May 10, 2019 Off