Blog - barbara findlay Q.C.

Kansas sues sperm donor for child support

12/30/2012

The state of Kansas is suing a sperm donor for repayment of welfare paid to the child's mother, even the child's lesbian comothers had a written agreement with the sperm donor relieving him of financial responsibility for the child.
The State is arguing that there are technical issues with the way the agreement was created which make the agreement void.

This scenario is one of the worst fears of both sperm donors, and the lesbian comothers who are inseminated with sperm from a donor.

The current law in BC could be interpreted in a way that would make this action available to the government of B.C. However, as of March 18, 2013, the new Family Law Act will specify that a man does NOT become a parent simply by virtue of donating sperm. This in turn would mean he could never be liable for child support.
For the full story, see the Huffington Post article: http://www.huffingtonpost.com/2012/12/30/kansas-sperm-donor_n_2382677.html?utm_hp_ref=politics

Treatment of trans people in UAE

12/28/2012

The International Gay and Lesbian Association reports this month on the situation for trans sex trade workers in the United Arab Emirates

The riches of the United Arab Emirates hold promise for transgender sex workers, but also danger and unspeakable cruelty. BY SULOME ANDERSON | OCTOBER 19, 2012 Officials at Al Awir prison said they couldn't confirm that she was held there and refused to comment on her accusations, but because Mya is a Canadian citizen, she says she made a complaint to the Canadian Consulate in Dubai while she was imprisoned. Although an official at the consulate couldn't provide details because of Canadian privacy laws, she did confirm that they had a case matching this description during the time period that Mya reports being jailed.

Mya says that after she decided to cooperate with the prison guards, they eventually released and deported her. "They just let me go," she says. "When they decided I had suffered enough, they released me, just like that. No court, no nothing."

Diana, a Filipina transgender woman, says she was also arrested for sex work in Dubai. In a telephone conversation, Diana says she went to Dubai to be with her boyfriend, but after they broke up, she turned to sex work.

"I found it very enticing as a way to generate income, because the men there love transsexuals," she says. "The ratio of money you can make is times 10, if you are able to maintain just one regular client. If you have a working relationship with a guy, you can practically become a millionaire."

After working in Dubai for two years, using a fake visa and female passport she bought on the black market, Diana says she was arrested in a sting operation similar to the one Mya describes.

"There were five Filipina ladyboy escorts, one American and one Malaysian, with me," she says. "We were all captured together. We were invited to go to a hotel by some men who turned out to be undercover police, and when we went, we were all arrested."

When asked about what happened after she was arrested, Diana's voice takes on a slightly frantic edge.

"I said, 'Don't rape me, please,'" she says quickly, in a whisper. "They raped me.… Some things are too bad to remember." Later in the conversation, she goes into more detail.

"The head of the police took me into another room," she says. "That's where it happened. Then all of us were put in a room together and forced to get naked, and they took pictures. There was terrible verbal abuse.… I think that was worse than the rape thing."

According to Diana, she was only detained for three days, while the others she was arrested with were jailed for one to three months.

"In exchange for my freedom, I was asked to give them the names of other ladyboys who were coming over," she says. "I gave them the names. You can't blame me."

LGBT activists from the Middle East and South Asia say what happened to Mya and Diana is a common occurrence.

"The reports that we're getting from transgender women who successfully make it home to the Philippines from the Middle East say that they have been very inhumanely treated when they are apprehended by the police," says Bemz Benedito, a transgender woman and leader of Ladlad Partylist, an LGBT political party in the Philippines.

Why do these transgender women risk their lives to work in the Middle East? The simple answer is money. Mya says she was making thousands of dollars in just a few days of work. But Johnny Tohme, a member of Helem, an LGBT rights organization based in Lebanon, says that it's more complicated than that.

"Getting a good job for transgenders is hard because of discrimination," he says. "Most of them begin to experience the hardest conflict related to their gender and sex during puberty, so pursuing a solid education wouldn't be a priority. Therefore, by the time they become adults, it gets hard for them to pursue a career. Another option presents itself, which is sex work, and what might facilitate that is the fact that sex work in the region pays a lot. There are a lot of clients, so it sounds like the next best option."

An Ontario trans victory ???

12/22/2012

The post below is republished with the kind permission of Christin Molloy.
We expect similar changes to the Ontario ones to happen in BC shortly.
One upon a time, a legal change of sex was available in Ontario only to those Trans* persons who could prove with documentation that they had completed "transsexual surgery." Early in 2012, that requirement was found to be discriminatory in a human rights ruling. Consequently, the Ontario Registrar General was given six months to provide a new process for legal change of sex which would be accessible to all Trans* persons, as opposed to just "post-op" individuals.

The Registrar's office released their newly revised requirements in October, less than one week before their tribunal-imposed deadline was set to expire. As I reported then, the new requirements are grossly dissatisfactory for a variety of reasons.

In addition to the points I raised at that time, anyone under 18 is outright banned from having a legal change of sex (even if their parents are cooperative). This blatant form of age discrimination, targeting already disadvantaged Trans* youth, is a fact which I unfortunately omitted in my earlier piece on the topic. Thanks go to blogger Catherine (at ex puero ad puellam) for pointing this out.

As it turns out, the problems don't end there. I've received a very disturbing report which indicates the registrar is summarily rejecting applications based on nebulous requirements that are not published anywhere. Whether they are doing this on purpose or by mistake, the effect is the same.

When my source, "Illiana," had her application rejected (after a two month wait), she wanted to know the reason why. So Illiana emailed the Deputy Registrar General and requested an explanation, and was contacted the next day by a customer service rep from the specific department of the registrar's office tasked with verifying that applications are "complete and correct."

The first problem with Illiana's registration was relatively straightforward. "I didn't provide them with the birth certificate I was issued 20 years ago... (because it was) lost 15 years ago," she says.

In defense of the registrar, the change of sex form does say "please send ... all previously issued birth certificates and certified copies of the birth registration." Illiana's impression from the form was that since her certificate was long gone, there weren't any copies left to submit. However, what is really meant by the form is "must send," and "at least one copy." Indeed, when I legally changed my name (my parents lacking the foresight to name their son Christin), I actually had to first specifically order and pay for a replacement birth certificate, in my male birth name, only to then turn around and remail it back to the registrar to be destroyed as part of the name change process. Typical government efficiency.

Now, the legal sex change form isn't really as clear about this requirement as it could be, so we can easily forgive Illiana. Nevertheless, the requirement to send in the old certificate is reasonable (chalk it up to security). To the registrar's credit, rather than requiring Illiana to fork over cash for a replacement only to remail it back for destruction, the customer service rep advised her instead that she need only include a letter explaining that she isn't in possession of a birth certificate. Fair enough, lesson learned, she can re-submit her application and move on. Right? Not so much.

Turns out there were other "problems" with Illiana's application, revealing some previously unknown and gravely troubling barriers for Trans* persons trying to access this process.

"(The) next topic was that I didn't include a physician's letter," explains Illiana. The letter Illiana did include was written not by her medical doctor, but by her psychologist. It was therefore unsuitable, explained the CSR. What? The application form clearly states "A letter (on the medical professional's letterhead) signed by a practicing physician or a psychologist (including a psychological associate) authorized to practice in Canada."

Illiana explains, "(the CSR) said this had to be on letterhead of a physician certified by the college of physicians and surgeons Ontario." Unfortunately, the College of Physicians and Surgeons of Ontario does not certify psychologists; that would be a job for the similarly named, but distinct, College of Psychologists of Ontario.

This issue may have been simply due to miscommunication. However, best case, the rep is just confused, but is incompetently providing misinformation to Trans* clients. Worst case, the application form is actually erroneous, and a psych letter won't get your application through the process.

Admirably keeping her wits about her, Illiana pointed out the discrepancy to the CSR. "Nowhere is that criteria stated on the Service Ontario website... and the application form clearly states... psychologist (is acceptable)." Of the CSR's reaction, Illiana had this to say: "She seemed to relent, and I'm not sure whether she was trying to purposely mislead me, or she had no idea what the form read, or what psychology is."

Based on my own experiences with government bureaucracy, I find it most likely that the rep was simply in error... however, Illiana's reaction underscores the fundamental truth: Trans* people have little motivation to trust agencies of federal and provincial governments which - have - consistently - failed - them - at - almost - every - turn.

But wait, there's more.

That was not the only problem with Illiana's letter, the rep told her. In addition to the misunderstanding as to whether or not a psychologist's letter qualifies as a letter written by a "doctor or psychologist," apparently the registrar also disapproved of the particular phrasing in Illiana's letter. She explains, the rep told her "the letter isn't accepted without an explicit statement that the birth certificate change is 'male to female.' The Registrar rejected (my psychologist's) letter... because it only said that the birth certificate sex designation is incorrect as it is, and should be changed."

Really? The published guidelines given to Trans* people on the Registrar website, and on the application form itself, state that the text of the doctor or psychologist letter "c. confirms that the applicant's gender identity does not accord with the sex designation on the applicant's birth registration; and d. is of the opinion that the change of sex designation on the birth registration is appropriate." Illiana says her psychologist wrote "...the birth certificate sex designation is incorrect as it is, and should be changed." And the registrar's office canned it because it didn't use the magic words "male to female," a requirement which is not published anywhere.

Infuriatingly, Illiana further reports "(the CSR) also said that several other applications such as mine have been similarly rejected."

Are you kidding me, Registrar General? Since the Ontario registrar does not recognize non-binary identities, one wonders what could possibly be the source of confusion here. Especially given that the separate Statutory Declaration form, which must also be submitted in the same package, is explicitly filled out by the applicant with a request to change sex designation "from (fill in blank) to (fill in blank)". Illiana's read "male" to "female," and her existing birth record read "male," so it's not as if there was any potential for misunderstanding.

Regarding the entire debacle, Illiana suggests "I have doubts that the current published criteria are understood by the Registrar's office staff, and since they reject complete applications based on unpublished criteria, (they) are not honoring the ruling of the tribunal in good faith." Hear, hear.

Some clarity, and a post-nonsense happy ending for Illiana? Illiana is to be commended for challenging the transphobic discrimination she experienced at the hands of the Registrar's office. Whether it was caused by wilfully disruptive anti-trans staff, or perhaps just institutional ignorance, it is unacceptable regardless. Because Illiana had the courage to follow-up with a challenge, she was contacted soon afterward by the Deputy Registrar, Sandra Leonetti.

"She was very nice and explained that they are in a learning mode with regard to the new requirements, and I should resubmit the package with a letter stating that I don't have the long form birth certificate, and with the psychologist's letter that accompanied the original application."

That is a bit of good news for Illiana... As for anyone else who has had their application rejected under murky circumstances, you might want to get in touch with the Office of the Registrar General.

"After talking with Ms. Leonetti, I feel that she is sincere about providing fair service, including Changes of Sex Designation applications. I feel that not all people in the Registrar's office are up to speed on everything to do with the new process. I expect that things will improve with regard to application processing as the people in that office get better acquainted with what is really required."

It is a shame that the "learning process" at the Registrar's office has come at the expense of Ontario Trans* people. Let us hope that they get their staff training issue under control.

Have you had a similar problem? Anyone who would like my help, or who has a story they'd like to share, please contact me.

Should a Victim of sexual assault be required to remove her niqab at the trial of her assailant?

12/20/2012

This is a summary of a case in which the issue is whether or not a woman who was the victim of assault has to remove her niqab to be able to testify. The case implicates her rights as a woman, her freedom of religion as a Muslim, and the accused's right to a fair trial.
This is what the Supreme Court of Canada said.

R. v. N.S.N.S., Appellant;
v.
Her Majesty The Queen, M---d S. and M---l S., Respondents, and
Ontario Human Rights Commission, Barbra Schlifer Commemorative
Clinic, Criminal Lawyers' Association (Ontario), Muslim
Canadian Congress, South Asian Legal Clinic of Ontario,
Barreau du Québec, Canadian Civil Liberties Association,
Women's Legal Education and Action Fund and Canadian Council
on American-Islamic Relations, Interveners.[2012] S.C.J. No. 72[2012] A.C.S. no 722012 SCC 72File No.: 33989. Supreme Court of CanadaHeard: December 8, 2011;
Judgment: December 20, 2012.Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein and Cromwell JJ.(110 paras.)Appeal From:

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Subsequent History:

NOTE: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

Court Catchwords: Charter of Rights — Freedom of religion — Right to fair hearing — Right to make full answer and defence — Muslim witness at preliminary hearing in sexual assault trial wanting to testify with her face covered by niqab — Whether requiring witness to remove the niqab while testifying would interfere with her religious freedom — Whether permitting her to wear niqab while testifying would create a serious risk to trial fairness — Whether both rights could be accommodated to avoid conflict between them — If not, whether salutary effects of requiring the witness to remove niqab outweigh deleterious effects — Canadian Charter of Rights and Freedoms, ss. 2(a), 7 and 11(d). Criminal law — Evidence — Cross-examination — Muslim witness at preliminary hearing in sexual assault trial wanting to testify with her face covered by niqab — Whether permitting her to wear niqab while testifying would create a serious risk to trial fairness.Court Summary:The accused, M---d S. and M---l S., stand charged with sexually assaulting N.S. N.S. was called by the Crown as a witness at the preliminary inquiry. N.S., who is a Muslim, indicated that for religious reasons she wished to testify wearing her niqab. The preliminary inquiry judge held a voir dire, concluded that N.S's religious belief was "not that strong," and ordered her to remove her niqab. On appeal, the Court of Appeal held that if the witness's freedom of religion and the accused's fair trial interests were both engaged on the facts and could not be reconciled, the witness may be ordered to remove the niqab, depending on the context. The Court of Appeal returned the matter to the preliminary inquiry judge. N.S. appealed.

Held (Abella J. dissenting): The appeal should be dismissed, and the matter remitted to the preliminary inquiry judge.

Per McLachlin C.J. and Deschamps, Fish and Cromwell JJ.: The issue is when, if ever, a witness who wears a niqab for religious reasons can be required to remove it while testifying. Two sets of Charter rights are potentially engaged -- the witness's freedom of religion and the accused's fair trial rights, including the right to make full answer and defence. An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable. The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court. A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.

Applying this framework involves answering four questions. First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom? To rely on s. 2(a) of the Charter, N.S. must show that her wish to wear the niqab while testifying is based on a sincere religious belief. The preliminary inquiry judge concluded that N.S.'s beliefs were not sufficiently strong. However, at this stage the focus is on sincerity rather than strength of belief.

The second question is: would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? There is a deeply rooted presumption in our legal system that seeing a witness's face is important to a fair trial, by enabling effective cross-examination and credibility assessment. The record before us has not shown this presumption to be unfounded or erroneous. However, whether being unable to see the witness's face threatens trial fairness in any particular case will depend on the evidence that the witness is to provide. Where evidence is uncontested, credibility assessment and cross-examination are not in issue. Therefore, being unable to see the witness's face will not impinge on trial fairness. If wearing the niqab poses no serious risk to trial fairness, a witness who wishes to wear it for sincere religious reasons may do so.

If both freedom of religion and trial fairness are engaged on the facts, a third question must be answered: is there a way to accommodate both rights and avoid the conflict between them? The judge must consider whether there are reasonably available alternative measures that would conform to the witness's religious convictions while still preventing a serious risk to trial fairness.

If no accommodation is possible, then a fourth question must be answered: do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so? Deleterious effects include the harm done by limiting the witness's sincerely held religious practice. The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom - such as the people present and any measures to limit facial exposure. The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system. These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab. Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice. When assessing potential harm to the accused's fair trial interest, the judge should consider whether the witness's evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings. Where the liberty of the accused is at stake, the witness's evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance. The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.

A clear rule that would always, or one that would never, permit a witness to wear the niqab while testifying cannot be sustained. Always permitting a witness to wear the niqab would offer no protection for the accused's fair trial interest and the state's interest in maintaining public confidence in the administration of justice. However, never permitting a witness to testify wearing a niqab would not comport with the fundamental premise underlying the Charter that rights should be limited only to the extent that the limits are shown to be justifiable. The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law.

Competing rights claims should be reconciled through accommodation if possible, and if a conflict cannot be avoided, through case-by-case balancing. The Charter, which protects both freedom of religion and trial fairness, demands no less.

Per LeBel and Rothstein JJ.: This appeal illustrates the tension and changes caused by the rapid evolution of contemporary Canadian society and by the growing presence in Canada of new cultures, religions, traditions and social practices. This case is not purely one of conflict and reconciliation between a religious right and the protection of the right of the accused to make full answer and defence, but engages basic values of the Canadian criminal justice system. The Charter protects freedom of religion in express words at s. 2(a). But fundamental too are the rights of the accused to a fair trial, to make full answer and defence to the charges brought against him, to benefit from the constitutional presumption of innocence and to avert wrongful convictions. Since cross-examination is a necessary tool for the exercise of the right to make full answer and defence, the consequences of restrictions on that right weigh more heavily on the accused, and the balancing process must work in his or her favour. A defence that is unduly and improperly constrained might impact on the determination of the guilt or innocence of the accused.

The Constitution requires an openness to new differences that appear within Canada, but also an acceptance of the principle that it remains connected with the roots of our contemporary democratic society. A system of open and independent courts is a core component of a democratic state, ruled by law and a fundamental Canadian value. From this broader constitutional perspective, the trial becomes an act of communication with the public at large. The public must be able to see how the justice system works. Wearing a niqab in the courtroom does not facilitate acts of communication. Rather, it shields the witness from interacting fully with the parties, their counsel, the judge and the jurors. Wearing the niqab is also incompatible with the rights of the accused, the nature of the Canadian public adversarial trials, and with the constitutional values of openness and religious neutrality in contemporary democratic, but diverse, Canada. Nor should wearing a niqab be dependent on the nature or importance of the evidence, as this would only add a new layer of complexity to the trial process. A clear rule that niqabs may not be worn at any stage of the criminal trial would be consistent with the principle of public openness of the trial process and would safeguard the integrity of that process as one of communication.

Per Abella J. (dissenting): The harmful effects of requiring a witness to remove her niqab, with the result that she will likely not testify, bring charges in the first place, or, if she is the accused, be unable to testify in her own defence, is a significantly more harmful consequence than the accused not being able to see a witness's whole face. Unless the witness's face is directly relevant to the case, such as where her identity is in issue, she should not be required to remove her niqab.

There is no doubt that the assessment of a witness's demeanour is easier if it is based on being able to scrutinize the whole demeanour package -- face, body language, or voice. That, however, is different from concluding that unless the entire package is available for scrutiny, a witness's credibility cannot adequately be weighed. Courts regularly accept the testimony of witnesses whose demeanour can only be partially observed and there are many examples of courts accepting evidence from witnesses who are unable to testify under ideal circumstances because of visual, oral, or aural impediments. The use of an interpreter, for example, may well have an impact on how the witness's demeanour is understood, but it is beyond dispute that interpreters render the assessment of demeanour neither impossible nor impracticable. A witness may also have physical or medical limitations that affect a judge's or lawyer's ability to assess demeanour. A stroke may interfere with facial expressions; an illness may affect body movements; and a speech impairment may affect the manner of speaking. All of these are departures from the demeanour ideal, yet none has ever been held to disqualify the witness from giving his or her evidence on the grounds that the accused's fair trial rights are impaired. Witnesses who wear niqabs should not be treated any differently.

Since not being able to see a witness's whole face is only a partial interference with what is, in any event, only one part of an imprecise measuring tool of credibility, there is no reason to demand full "demeanour access" where religious belief prevents it. A witness wearing a niqab may still express herself through her eyes, body language, and gestures. Moreover, the niqab has no effect on the witness's verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives. Defence counsel still has the opportunity to rigorously cross-examine the witness.

A witness who is not permitted to wear her niqab while testifying is prevented from being able to act in accordance with her religious beliefs. This has the effect of forcing her to choose between her religious beliefs and her ability to participate in the justice system. As a result, complainants who sincerely believe that their religion requires them to wear the niqab in public, may choose not to bring charges for crimes they allege have been committed against them, or, more generally, may resist being a witness in someone else's trial. Where the witness is the accused, she will be unable to give evidence in her own defence. The majority's conclusion that being unable to see the witness's face is acceptable from a fair trial perspective if the evidence is "uncontested", essentially means that sexual assault complainants, whose evidence will inevitably be contested, will be forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all.

Harper Launches Major First National Termination Plan

12/20/2012

H

This was forwarded to my by my Wet'suwet'en sister, Theresa Tait-Day

Harper Launches Major First Nations Termination Plan http://intercontinentalcry.org/harper-launches-major-first-nations-termination-plan-as-negotiating-tables-legitimize-canadas-colonialism/

Harper Launches Major First Nations Termination Plan: As Negotiating Tables Legitimize Canada's Colonialism

By Russell Diabo Nov 9, 2012

On September 4th the Harper government clearly signaled its intention to:

1) Focus all its efforts to assimilate First Nations into the existing federal and provincial orders of government of Canada;

2) Terminate the constitutionally protected and internationally recognized Inherent, Aboriginal and Treaty rights of First Nations.

Termination in this context means the ending of First Nations pre-existing sovereign status through federal coercion of First Nations into Land Claims and Self-Government Final Agreements that convert First Nations into municipalities, their reserves into fee simple lands and extinguishment of their Inherent, Aboriginal and Treaty Rights.

To do this the Harper government announced three new policy measures:

A "results based" approach to negotiating Modern Treaties and Self-Government Agreements. This is an assessment process of 93 negotiation tables across Canada to determine who will and who won't agree to terminate Inherent, Aboriginal and Treaty rights under the terms of Canada's Comprehensive Claims and Self-Government policies. For those tables who won't agree, negotiations will end as the federal government withdraws from the table and takes funding with them.

First Nation regional and national political organizations will have their core funding cut and capped. For regional First Nation political organizations the core funding will be capped at $500,000 annually. For some regional organizations this will result in a funding cut of $1 million or more annually. This will restrict the ability of Chiefs and Executives of Provincial Territorial organization's to organize and/or advocate for First Nations rights and interests.

First Nation Band and Tribal Council funding for advisory services will be eliminated over the next two years further crippling the ability of Chiefs and Councils and Tribal Council executives to analyze and assess the impacts of federal and provincial policies and legislation on Inherent, Aboriginal and Treaty rights.

These three new policy measures are on top of the following unilateral federal legislation the Harper government is imposing over First Nations:

- Bill C-27: First Nations Financial Transparency Act

- Bill C-45: Jobs and Growth Act, 2012 [Omnibus Bill includes Indian Act amendments regarding voting on-reserve lands surrenders/designations]

- Bill S-2: Family Homes on Reserves and Matrimonial Interests or Rights Act

- Bill S-6: First Nations Elections Act

- Bill S-8: Safe Drinking Water for First Nations

- Bill C-428: Indian Act Amendment and Replacement Act [Private Conservative MP's Bill, but supported by Harper government]

Then there are the Senate Public Bills:

- Bill S-207: An Act to amend the Interpretation Act (non derogation of aboriginal and treaty rights)

- Bill S-212: First Nations Self-Government Recognition Bill

The Harper government's Bills listed above are designed to undermine the collective rights of First Nations by focusing on individual rights. This is the "modern legislative framework" the Conservatives promised in 2006. The 2006 Conservative Platform promised to:

Replace the Indian Act (and related legislation) with a modern legislative framework which provides for the devolution of full legal and democratic responsibility to aboriginal Canadians for their own affairs within the Constitution, including the Charter of Rights and Freedoms.

Of course "modern" in Conservative terms means assimilation of First Nations by termination of their collective rights and off-loading federal responsibilities onto the First Nations themselves and the provinces.

One Bill that hasn't been introduced into Parliament yet, but is still expected, is the First Nations' Private Ownership Act (FNPOA). This private property concept for Indian Reserveswhich has been peddled by the likes of Tom Flanagan and tax proponent and former Kamloops Chief Manny Julesis also a core plank of the Harper government's 2006 electoral platform.

The 2006 Conservative Aboriginal Platform promised that if elected a Harper government would:

Support the development of individual property ownership on reserves, to encourage lending for private housing and businesses.

The long-term goals set out in the Harper government's policy and legislative initiatives listed above are not new; they are at least as old as the Indian Act and were articulated in the federal 1969 White Paper on Indian Policy, which set out a plan to terminate Indian rights as the time.

Previous Termination Plans: 1969 White Paper & Buffalo Jump of 1980's

The objectives of the 1969 White Paper on Indian Policy were to:

- Assimilate First Nations.

- Remove legislative recognition.

- Neutralize constitutional status.

- Impose taxation.

- Encourage provincial encroachment.

- Eliminate Reserve lands & extinguish Aboriginal Title.

- Economically underdevelop communities.

- Dismantle Treaties.

As First Nations galvanized across Canada to fight the Trudeau Liberal government's proposed 1969 termination policy the federal government was forced to consider a strategy on how to calm the Indian storm of protest.

In a memo dated April 1, 1970, David Munro, an Assistant Deputy Minister of Indian Affairs on Indian Consultation and Negotiations, advised his political masters Jean Chrétien and Pierre Trudeau, as follows:

. . . in our definition of objectives and goals, not only as they appear in formal documents, but also as stated or even implied in informal memoranda, draft planning papers, or causal conversation. We must stop talking about having the objective or goal of phasing out in five years. . . We can still believe with just as much strength and sincerity that the [White Paper] policies we propose are the right ones. . .

The final [White Paper] proposal, which is for the elimination of special status in legislation, must be relegated far into the future. . . my conclusion is that we need not change the [White Paper] policy content, but we should put varying degrees of emphasis on its several components and we should try to discuss it in terms of its components rather than as a whole. . . we should adopt somewhat different tactics in relation to [the White Paper] policy, but that we should not depart from its essential content. (Emphasis added)

In the early 1970's, the Trudeau Liberal government did back down publicly on implementing the 1969 White Paper on Indian Policy, but as we can see from Mr. Munro's advice the federal bureaucracy changed the timeline from five years to a long-term implementation of the 1969 White Paper objectives of assimilation/termination.

In the mid-1980's the Mulroney Conservative government resurrected the elements of the 1969 White Paper on Indian Policy, through a Cabinet memo.

In 1985, a secret federal Cabinet submission was leaked to the media by a DIAND employee. The Report was nicknamed the "Buffalo Jump of the 1980's" by another federal official. The nickname referred to the effect of the recommendations in the secret Cabinet document, which if adopted, would lead Status Indians to a cultural death -- hence the metaphor.

The Buffalo Jump Report proposed a management approach for First Nations policy and programs, which had the following intent:

- Limiting & eventually terminating the federal trust obligations;

- Reducing federal expenditures for First Nations, under funding programs, and prohibiting deficit financing;

- Shifting responsibility and costs for First Nations services to provinces and "advanced bands" through co-management, tri-partite, and community self-government agreements;

- "Downsizing" of the Department of Indian Affairs and Northern Development (DIAND) through a devolution of program administration to "advanced bands" and transfer of programs to other federal departments;

- Negotiating municipal community self-government agreements with First Nations which would result in the First Nation government giving up their Constitutional status as a sovereign government and becoming a municipality subject to provincial or territorial laws;

- Extinguishing aboriginal title and rights in exchange for fee simple title under provincial or territorial law while giving the province or territory underlying title to First Nations lands.

The Mulroney government's "Buffalo Jump" plan was temporarily derailed due the 1990 "Oka Crisis". Mulroney responded to the "Oka Crisis" with his "Four Pillars" of Native Policy:

- Accelerating the settlement of land claims;

- Improving the economic and social conditions on Reserves;

- Strengthening the relationships between Aboriginal Peoples and governments;

- Examining the concerns of Canada's Aboriginal Peoples in contemporary Canadian life.

In 1991, Prime Minister Brian Mulroney also announced the establishment of a Royal Commission on Aboriginal Peoples, which began its work later that year; the establishment of an Indian Claims Commission to review Specific Claims; the establishment of a BC Task Force on Claims, which would form the basis for the BC Treaty Commission Process.

In 1992, Aboriginal organizations and the federal government agreed, as part of the 1992 Charlottetown Accord, on amendments to the Constitution Act, 1982 that would have included recognition of the inherent right of self-government for Aboriginal people. For the first time, Aboriginal organizations had been full participants in the talks; however, the Accord was rejected in a national referendum.

With the failure of Canadian constitutional reform in 1992, for the last twenty years, the federal governmentwhether Liberal or Conservativehas continued to develop policies and legislation based upon the White Paper/Buffalo Jump objectives and many First Nations have regrettably agreed to compromise their constitutional/international rights by negotiating under Canada's termination policies.

Canada's Termination Policies Legitimized by Negotiation Tables

It has been thirty years since Aboriginal and Treaty rights have been "recognized and affirmed" in section 35 of Canada's constitution. Why hasn't the constitutional protection for First Nations' Inherent, Aboriginal and Treaty rights been implemented on the ground?

One answer to this question is, following the failure of the First Ministers' Conferences on Aboriginal Matters in the 1980's, many First Nations agreed to compromise their section 35 Inherent, Aboriginal and Treaty rights by entering into or negotiating Modern Treaties and/or Self-government Agreements under Canada's unilateral negotiation terms.

These Modern Treaties and Self-Government Agreements not only contribute to emptying out section 35 of Canada's constitution of any significant legal, political or economic meaning. Final settlement agreements are then used as precedents against other First Nations' who are negotiating.

Moreover, Canada's Land Claims and Self-Government policies are far below the international standards set out in the Articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Canada publicly endorsed the UNDRIP in November 2010, but obviously Canada's interpretation of the UNDRIP is different than that of most First Nations, considering their unilateral legislation and policy approach.

Canada's voted against UNDRIP on Sept. 13, 2007, stating that the UNDRIP was inconsistent with Canada's domestic policies, especially the Articles dealing with Indigenous Peoples' Self-Determination, Land Rights and Free, Prior Informed Consent.

Canada's position on UNDRIP now is that they can interpret it as they please, although the principles in UNDRIP form part of international not domestic law.

The federal strategy is to maintain the Indian Act (with amendments) as the main federal law to control and manage First Nations. The only way out of the Indian Act for First Nations is to negotiate an agreement under Canada's one-sided Land Claims and/or Self-Government policies. These Land Claims/Self-Government Agreements all require the termination of Indigenous rights for some land, cash and delegated jurisdiction under the existing federal and provincial orders of government.

Canada has deemed that it will not recognize the pre-existing sovereignty of First Nations or allow for a distinct First Nations order of government based upon section 35 of Canada's constitution.

Through blackmail, bribery or force, Canada is using the poverty of First Nations to obtain concessions from First Nations who want out of the Indian Act by way of Land Claims/Self- Government Agreements. All of these Agreements conform to Canada's interpretation of section 35 of Canada's constitution, which is to legally, politically and economically convert First Nations into what are essentially ethnic municipalities.

The first groups in Canada who have agreed to compromise their section 35 Inherent and Aboriginal rights through Modern Treaties have created an organization called the Land Claims Agreement Coalition. The Coalition Members are:

Council of Yukon First Nations (representing 9 land claim organizations in the Yukon)

Grand Council of the Crees (Eeyou Istchee)

Gwich'in Tribal Council

Inuvialuit Regional Corporation

Kwanlin Dun First Nation

Maa-nulth First Nations

Makivik Corporation

Naskapi Nation of Kawawachikamach

Nisga'a Nation

Nunavut Tunngavik Inc.

Nunatsiavut Government

Sahtu Secretariat Inc.

Tlicho Government

Tsawwassen First Nation

Vuntut Gwitchin First Nation

The Land Claims Agreement Coalition Members came together because the federal government wasn't properly implementing any of their Modern Treaties. So the Coalition essentially became a lobby group to collectively pressure the federal government to respect their Modern Treaties. According to Members of the Coalition Modern Treaty implementation problems persist today.

The fact that Canada has already broken the Modern Treaties shouldn't inspire confidence for those First Nations who are already lined up at Canada's Comprehensive Claims and Self-Government negotiation tables.

According to the federal Department of Aboriginal Affairs there are 93 Modern Treaty and/or Self-Government negotiation tables across Canada [http://www.aadncaandc.gc.ca/eng/1346782327802/1346782485058].

Those First Nations who are negotiating at these 93 tables are being used by the federal government (and the provinces/Territories) to legitimize its Comprehensive Claims and Self-Government policies, which are based upon extinguishment of Aboriginal Title and termination of Inherent, Aboriginal and Treaty rights.

The First Nations who have been refusing to negotiate and are resisting the federal Comprehensive Claims and Self-Government negotiating policies are routinely ignored by the federal government and kept under control and managed through the Indian Act (with amendments).

Attempts by non-negotiating First Nations to reform the federal Comprehensive Claims and Self-Government policies aren't taken seriously by the federal government because there are so many First Nations who have already compromised their Inherent, Aboriginal and Treaty rights by agreeing to negotiate under the terms and funding conditions of these Comprehensive Claims and Self-Government policies.

For example, following the 1997 Supreme Court of Canada Delgamuukw decision, which recognized that Aboriginal Title exists in Canada, the Assembly of First Nations tried to reform the Comprehensive Claims policy to be consistent with

Lesbian judge gets apology from Chile, AP reports

12/15/2012

I never thought I would see the day...

SANTIAGO, Chile (AP) — Chile's government has apologized to a lesbian judge who was denied custody of her three daughters because she is gay.

The apology was issued Friday during a ceremony led by Justice Minister Teodoro Ribera. Chile says it will pay Magistrate Karen Atala $70,000 and grant her medical and psychological treatment.

The reparation comes 10 months after the Inter-American Court of Human Rights condemned Chile's decision to deny Atala custody of her children.

Atala had filed a complaint with the Inter-American Commission of Human Rights in Nov. 2004 after Chile's Supreme Court decided to give custody of her daughters to her ex-husband because she is lesbian. Two of the children are now adults and the third is a teenager.

The ruling followed Chile's approval this year of an anti-discrimination law.

Southpaws - what you have always known

12/5/2012

I'm sure you have noticed that more of your friends are left handed than you would expect...well, it's true.
A Canadian study found that if you are queer, you are much more likely than heterosexuals to be left-handed. And the association is stronger for lesbians. In fact, if you are gay, you are 34% more likely to be left handed; if you are lesbians, 91% more likely! Ray Blanchard, one of the authors of the study published in the Psychology Bulletin, says that this is evidence that at least some part of your sexual orientation is genetically or biologically determined, perhaps in the womb. Thanks to Gay Today and Jesse's blog for this tidbit.

Trans workplace - useful site

12/3/2012

This site, though American, has many useful workplace resources for trans people:
http://transworkplace.ning.com/?showAddContent=1&xg_source=msg_wel_network

Solidarity with Ugandan Queers

12/1/2012

I highly recommend this article in the Huffington Post about the deeply shocking developments in Uganda, which is legislating homophobia in the most vicious terms:
http://www.huffingtonpost.com/ruth-messinger/standing-in-solidarity-wi_1_b_2220652.html