Legalizing Spousal Rape In Afghanistan – Not So Foreign to Canadian Law

As the CBC reports, Afghanistan's proposed law to legalize spousal rape, or to put it in other terms “make it illegal for women to refuse their husbands sex”, has rightly been widely condemned.

However, we would be wrong to characterize this as some sort of Islamic barbarism foreign to western civilizations.

Indeed, as the Globe and Mail reports, the same provision existed in Canadian law up until 1983.

Indeed, the concept has had a long history in the jurisprudence of the United Kingdom, Commonwealth countries, Canada and the United States, as the following articles record:

Historical Development of the Offence of_Rape (Bruce A. MacFarlane, Q.C. Deputy Minister of Justice Deputy Attorney General for the Province of Manitoba)

Making Marital Rape A Crime: A Long Road Traveled, A Long Way to Go (Lynn Hecht Schafran, Director, National Judicial Education Program; Stefanie Lopez-Boy, Program Associate, National Judicial Education Program; Mary Rothwell Davis)

It took a long time to banish from the law books of the west, It should not be allowed to be put on the law books of Afghanistan at a time when Canadian soldiers are dying there, supposedly in the name of women's rights and human rights.

I Hate Hate But I Love Freedom of Speech

This is the challenge facing many Canadians. It involves getting our priorities right. But it is not as difficult a challenge as it seems. Once one realizes that the best way to fight hate is with free speech the choice becomes obvious.

Freedom of thought is the freedom to be who you are, and freedom of thought is meaningless if you cannot express your thoughts, Freedom of expression is the freedom to be yourself. And if you are a bigot or a racist, all the better that others know it. Hate is most effective and at its evilest when it is underground.

This issue was recently addressed by University of Windsor professor Richard Moon in his report on Section 13 of the Canadian Human Rights Act.

The CBC reports:

"My principal recommendation, in the end, has been for the repeal of Section 13," Moon told CBC News on Monday. "That does not mean that we no longer have hate speech regulation. What it means is that the Criminal Code of Canada, which has a ban on the wilful promotion of hatred, would be the recourse."

In his report, which was made public Monday, Moon also suggests that the application of the Criminal Code provision should also be limited. He says it should only be applied in cases where the speech "explicitly or implicitly threatens, justifies or advocates violence against the members of an identifiable group."

The report, indeed, recommends that only “speech” that advocates harm would be illegal and it would have to be proven “beyond a reasonable doubt” in a court of law.

This is a Canadian compromise that may not go as far as United States First Amendment Rights but balances the rights of those who want to exercise their free speech with the rights of those that may be harmed by it.

Never Believe The Press - At Least Not The Toronto Star

Yesterday in the Fifth Column, in relation to the government’s alleged non-confidence motion aimed at pressuring the Senate to pass Bill C-22 quickly, I stated:

The question of whether declaring this meaningless motion a matter of confidence makes it a non-confidence motion is moot, however, as the Bloc Quebecois and New Democratic Party have indicated that they will support the motion.”

This statement was based on an article in the Toronto Star dated “Feb 08, 2008 04:30 AM” that stated:

The first deadline, in the form of a motion introduced yesterday, will call on the Commons next week to demand that the Liberal- dominated Senate pass Bill C-2, the government's omnibus "Tackling Violent Crime" legislation.

Bloc Québécois Leader Gilles Duceppe and NDP Leader Jack Layton indicated their parties would happily support the Conservatives in pressuring the Senate to pass the crime bill.

However that statement turned out to be false as the CBC reported:

Even without the Liberals, the motion easily passed 172-27, with the Conservatives and Bloc Québécois MPs voting in its favour and New Democrat MPs voting against it.

The Fifth Column apologies to the NDP. I should have known better than to believe they would support such a motion.

Non-Confidence & A Meaningless Motion

The following motion is to be voted on today following Question Period:

Mr. Van Loan (Leader of the Government in the House of Commons and Minister for Democratic Reform), seconded by Mr. Nicholson (Minister of Justice and Attorney General of Canada)

That, given the Government has declared the passage of Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, as a matter of confidence, and, that the bill has already been at the Senate longer than all stages took in the House of Commons, and that all aspects of this bill have already been the subject of extensive committee hearings in Parliament, and that in the opinion of this House, the Senate majority is not providing appropriate priority to the passage of Bill C-2, a message be sent to the Senate calling on the Senate to pass Bill C-2, the Tackling Violent Crime Act, by March 1, 2008. (Government Business No. 3)

This is part of an attempt by the government to set up a series of opportunities to lose motions of confidence, which also includes the budget and the motion on the Afghanistan motion. While the government is justified in declaring the vote on Bill C-2 in the House of Commons a matter of confidence, this motion is meaningless and hardly a matter of confidence.

This motion is meaningless as the House of Commons has no authority over the Senate and no constitutional right to provide direction to it.

The confidence convention requires that the government retain the confidence of the House of Commons, not the confidence of the Senate.

• Compendium
• Procedure Online
• House of Commons

Parliamentary Framework
Confidence Convention

By constitutional convention, the Prime Minister and the Cabinet are able to exercise authority only with the consent and approval (“confidence”) of a majority of the Members of the House of Commons. Should the Government lose the confidence of the House, the Prime Minister must submit his or her resignation to the Governor General, who either calls an election, or, much more rarely, invites the leader of another party in the House to attempt to form a government.

The confidence convention is a matter of parliamentary practice and tradition that is not written into any statute or Standing Order of the House, nor is it a matter on which the Speaker can rule. However, confidence motions are generally considered to be:

* explicitly worded motions which state, in precise terms, that the House of Commons has, or has not, confidence in the government;
* motions expressly declared by the government to be questions of confidence;
* implicit motions of confidence, that is, motions traditionally deemed to be questions of confidence, such as motions for the granting of Supply (although not necessarily an individual item of Supply), motions concerning the budgetary policy of the government and motions respecting the Address in Reply to the Speech from the Throne.

The question of whether declaring this meaningless motion a matter of confidence makes it a non-confidence motion is moot, however, as the Bloc Quebecois and New Democratic Party have indicated that they will support the motion. Whether the motion has any moral suasion over the Senate is for it to decide,

Any decisions by the Senate on Bill C-2, including extending debate on it, are not matters of confidence. The only way Bill C-2 can be a matter of confidence is for it to be defeated in the House of Commons.