On Burkas, Condemnation Doesn't Have to Include Prohibition

My latest Calgary Herald column looks at the recent debates over banning polygamy and whether to ban the burka/niqab, and concludes that we should do neither:

It may well be the case that clear and definable Canadian values exist, but the existence of such values should not be an excuse to intrude into the private lives of citizens.
It would hardly be objectionable to suggest that polygamy is counter to Canadian values. The same could be said of the wearing of the Islamic burka or the niqab.
However, such observations do not bring us to the conclusion that these practices must then be prohibited. Judging from the national discourse, many Canadians would disagree.
Last month, B.C. Supreme Court Justice Robert Bauman issued a ruling declaring Section 293 of the Criminal Code of Canada - the law banning polygamy - to be constitutional.
Last week, Immigration and Citizenship Minister Jason Kenney sparked a national debate over the Islamic veil after declaring that those taking the citizenship oath would be forced to show their faces while doing so. A refusal to lift the veil would mean that Canadian citizenship could not be obtained.
The decree is quite narrow in that sense - it does not directly affect any other laws or regulations concerning the wearing of the veil. It may be a justified expectation, but at the same time, it may also be a solution in search of a problem.
However, it's a decision that's been applauded by many groups and commentators who hope it is a first step to banning the veil out-right, as has been done in countries such as France.
But for a practice to be criminally prohibited, there must be clear evidence of harm - harm without consent.
Causing harm to our sensibilities or values is an insufficient basis for prohibition. That's what brought us the criminalization of divorce and adultery, for example.
Advocates of a ban on both polygamy and the niqab argue that there is indeed demonstrable harm: to the women themselves.
It's a claim not without basis. Many women who have escaped the polygamous world of the Fundamental Church of Jesus Christ of Latter-Day Saints have told harrowing tales of the oppression and abuse of women.
And certainly it is the case that many Islamic women hiding their faces and identities have been forced to do so by their husbands. Either way, it represents a troubling ideology that ought to concern those who believe in gender equality.
The problem with the harm-to-women argument is two-fold. For one, even if the harm is present in many or most instances, it cannot be presumed to exist in every instance.
In fact, the harm may be specific to religion - it's hard to identify, for example, the victim of a non-religious polyamorous relationship. There may also be non-religious reasons why an individual may want to cover his or her face while in public.
Should we ban the Fundamental Church of Jesus Christ of Latter-Day Saints or fundamentalist Islam? It seems just as logical as a burka or polygamy ban.
The bigger problem with the harm-to-women argument is that we create the paradoxical situation where the victim is also the criminal.
If we are to argue that a woman who becomes the ninth wife of a church elder is a victim, the problem is that by entering into that arrangement she, too, has violated the law.
By banning the burka, we would be targeting those who wear it. There would be no consequences for the husbands who force their wives to wear it or the imams who warn of eternal hellfire for those who shun it.
Even under Kenney's narrow citizenship rules, it cannot escape observation that it would still allow a misogynistic Islamic fundamentalist to give the citizenship oath, while denying his timid, veiled wife.
Our battle against that which offends our values should not rest on whether we can prohibit these practices.
We can respect individual freedom and autonomy while still condemning and ostracizing certain beliefs and ideologies.
We don't criminalize, for example, the tattooing of one's body with swastikas or the formation of white supremacist groups. Yet, you'd be hard-pressed to find ideas more at odds with Canadian values and sensibilities.
The heavy hand of prohibition should always be a last resort. The impulse of "there oughta be a law" too often leads us astray.

Christopher Hitchens, RIP

An intellectual giant. A brilliant writer. A feisty contrarian. A one of a kind.
A huge loss.

Rushing Ahead With Flawed Drunk Driving Legislation

My latest Calgary Herald column takes a critical look at Bill 26, Alberta's proposed new impaired driving legislation (which passed final vote Tuesday night, much to the chagrin of some Tory MLAs):

Alberta politicians were back at work Monday, later than had been scheduled during this brief fall sitting of the legislature.
With the government attempting to ram through six pieces of legislation, even the midnight sittings last week weren’t enough to crunch everything into a tight time frame.
The opposition parties have accused the government of “legislating through exhaustion,” and fear that these pieces of legislation are not receiving the debate and scrutiny they ought to.
One of those is Bill 26, which introduces tough new penalties for suspected drunk drivers. Questions abound with regard to its effectiveness and fairness, but the government is plowing ahead. The premier even speculated that the law could be in force by Christmas.
On Bill 26, it seems the only Albertans the Tories want to hear from are those who think the government is doing a wonderful thing.
Those asking tough questions and raising concerns are seen as a distraction and an obstacle.
Even after the B.C. Supreme Court declared part of that province’s impaired driving law to be unconstitutional, MLAs had barely a day to try to read the ruling and analyze how it might apply to Alberta’s legislation.
The Alberta government is convinced that its law is sufficiently different from B.C.’s, so that the issues laid out in the ruling would not apply here.
Others aren’t so sure. The president of the Criminal Trial Lawyers Association has indicated that his organization may pursue its own constitutional challenge of Alberta’s law.
B.C.’s law imposes heavy fines and lengthy suspensions for drivers who blow over .08 blood-alcohol content, as does Alberta’s proposed law. Alberta’s law, however, is predicated on a criminal charge being laid first, unlike B.C.’s law.
However, someone charged with a crime has not been proven guilty, so here, too, we are pre-emptively punishing the accused.
The provision under Alberta’s law that a suspension remains in place until the matter has been resolved by the courts may be harsher in some ways than B.C.’s penalties.
Given that it might be a year or more before a case gets to trial, even an innocent person might feel pressured to plead guilty.
The provisions of B.C.’s law dealing with motorists in the so-called warning range — those between .05 and .08 — were found to be constitutional.
Under Bill 26, those motorists would receive a three-day license suspension for a first offence, rising to 15 days and 30 days for subsequent offences.
Once again, we are imposing penalties on those who have not been convicted of anything — in this case, not even charged with anything.
Furthermore, given that the vast majority of impaired driving fatalities involve those well over the established legal limit, it’s unclear how effective a law targeting minimal impairment will be.
Those having a drink or two do not seem to be the problem.
Last week, Herald columnist Paula Arab argued that this law won’t target such people. She came to that conclusion after an evening of drinks and food accompanied by a police officer and his roadside screening device.
Yet, by her account, after one glass of wine in the first hour, Arab blew .49, a hairsbreadth from the warning range and the accompanying suspension. That doesn’t exactly mesh with her conclusion that “social drinkers have nothing to fear” from this law.
Meanwhile, columnist Robert Remington, writing on the Herald opinion blogs, argued that targeting drivers at the lower threshold will also target more dangerous drunk drivers.
That conclusion is at odds with the Traffic Injury Research Foundation, which finds that “there is a considerable body of research that clearly demonstrates that placing lower-risk offenders in more intensive sanctions can do more harm than good . . . and may actually increase their likelihood of repeat offending.”
As foundation president Robyn Robertson has observed, Alberta has a “good structure” in place to deal with impaired drivers and alcohol-related driving deaths have been declining since 1995.
Instead, we’re left with a law that we might not need, that might not work, and that might target and punish the innocent.
If ever there was a law worthy of more debate and scrutiny, it is this.