Teachers and the Right to Political Protest

The teachers' union recently lost a battle with the provincial government over whether or not they could strike 'mid-contract' to protest political matters. This lost battle for the teachers may, however, be a good sign for their ongoing battle with the provincial over election oriented issue advertising. The court held that the right to strike can be limited despite the fact that it is an interference with freedom of speech. It held that the strike ban is a reasonable limit given the public disruption caused by wide scale teachers' strikes. (The teachers complained that non-union workers were still free to engage in protest strikes -- the court pointed out that this would likely result in consequences such as termination, loss of pay and so forth, something that would not happen to unionized employees).

The government should be concerned about this decision however as there is another battle going on with the teachers over the teachers' right to pay for issue oriented advertising (aka "let's get the Campbell out of here advertising"). Provincial legislation limits such advertising in the run up to a provincial election (that is, when it really matters) and the unions are challenging this ban. Part of the reason, however, the court held that right to strike could be limited is the fact that there are other avenues of protest open to teachers to advance their causes. It certainly seems to me that this is something that weighs in favour of letting the teachers advertise -- if they can't walk, at least they can speak.

Fun with Fish Farms

The British Columbia Supreme Court struck down British Columbia's fish farm regulatory regime yesterday holding that laws that manage things that are swimming in the oceans, have gills, have fins and defecate into the ocean amount to laws managing fisheries (even if the fish are in a large pen). The little difficulty that this posed for the Court is that the power to pass laws that are designed to manage fisheries is given exclusively to the Federal Parliament and not the British Columbia legislature. Now it is true that a group of bureaucrats in Ottawa signed an agreement with a group of bureaucrats in Victoria essentially giving Victoria a free hand to manage the fisheries, but the judge found this less than helpful since he had problems finding the part of our constuitution that allowed bureaucrats to make laws without dealing with those nasty little details like Parliament or (at least) cabinet. Well this should lead to lots of interesting head scratching over the next few weeks.

Bail, Public Confidence and Gun Violence

Courts often recognize that the time has come to get ahead of a building problem and the Ontario Court of Appeal did just that recently by forcing a new debate about secret bail hearings. As our law presently stands the press are banned from reporting any of the information presented at such hearings and are essentially kept to reporting that 'the court denied (or allowed) the Crown's request that the accused be held without bail.'

Canada's bail system essentially is designed to ensure that, except in the case of murder, people are released on bail and the least onerous bail conditions if they can be. This reflects the fact that (1) people are presumed innocent until proven guilty and (2) conditions in pre-trial remand facilities are notoriously bad and it is unlikely that we would actually want to spend the money to build new facilities to house significantly increased numbers of pre-trial detainees. Essentially the rule is that unless the Crown can prove that detention is needed to prevent flight or to protect the public the person is to be released on reasonable terms designed to prevent this (eg turn over your passport and post you mom's house).

The recent spate of bloody and extravagant murders in Vancouver -- which look to be pretty obviously gang related -- has started to liven up the debate about whether or not this is really the right approach to this issue. A professor of criminology at the University of the Fraser Valley was quoted in the CBC yesterday commenting on this issue:

The number of gangs in B.C. has doubled in the past two years, said Darryl Plecas, a University of the Fraser Valley professor.

He said there are more than 100 gangs operating in the province at any given time.
"It's really quite disturbing when we have so many people who are well-known, established gangster types on the street and those people are facing gun charges and released on bail," Plecas said.
"I think, that kind of activity, we really have to give some second thinking to it."

While Professor Plecas' comments seem to oversimplify matters (it is a soundbite after all) they raise a truly legitimate issue in the eyes of the lay people in the public: how can it be that there are so many people running around on bail committing crimes? Of course it is all speculation whether this was true in this case or not, but nevertheless the trend with gang violence in BC suggests that this is a real issue.

Interestingly, the Ontario Court of Appeal struck down parts of these secrecy laws last month. They gave the government a year to fix the problems, but at the heart of their judgment was the observation that the harm of publicity (interfering with the rights to a fair trial) could not be shown in any real way to outweigh the harm that is being done from shielding bail decisions from public scrutiny and debate. Maybe the decisions are good; maybe the decisions are bad. Maybe the problem lies with judges or maybe it lies with the law. The practical problem is that while these decisions are made in secret none of us can really judge this and have a say on what to do. The most ringing statement of the principle applicable in this situation came from Justice Rosenberg (who would have struck down more of the law than was struck down):

[78] In R. v. Hall (2002), 167 C.C.C. (3d) 449 (S.C.C.), McLachlin C.J. wrote at para. 27, “Public confidence is essential to the proper functioning of the bail system and the justice system as a whole”. Again, at para. 31, she wrote: “Without public confidence, the bail system and the justice system generally stand compromised.” Section 517, however, prevents the dissemination of the information necessary to promote public confidence in the bail system. This is the case both at the time the initial decision is made, and later where subsequent events may raise questions as to the wisdom of that decision, as when the accused who is on bail commits further offences. The fact that an accused was on bail when he or she committed a further serious offence often receives wide coverage in the media. However, the public is left to speculate as to why the accused was initially released, because of the s. 517order.

The ruling in the end only struck the rule down for trials that would not be jury trials (this case is inevitably off to the Supreme Court of Canada) but even the judges who disagreed with Justice Rosenberg agreed with this principle.

The time has come for a real debate around how the bail system works (personally I think it comes pretty close to the right balance on the whole) and that debate is not going to be an informed one if it happens with the real process under a shroud of secrecy.

This case also illustrates the importance of the formal press to the advancement of freedom of expression. While the press is a bit self-righteous at times about the sanctity of its rights, the reality is that it is only the press who can truly afford and manage efforts to bring forward challenges like this. While there are people who think that the press can be replaced by the efforts of the amateurs in the cloud of the internet, the reality is different. Cases like this are built on sustained journalistic effort and interest which cannot be sustained by amateurs. The legal challenge depends upon having the resouces and the expert legal teams that only come through the support of the structured press. Left to the blogosphere cases like this would not happen and we would be left in the dark. Thus as we see the economy devastate the press we should avoid the urge to feel schadenfreude -- we will be worse of without them.

Infrastructure Now is No New Deficit

There are two reasons why spending public money now is a good idea and creates no new deficits. I argue that despite what all the naysayers say, we are not burdening our grandchildren by doing this spending (though we may have by buying that flatscreen TV).

First, over the last thirty years we burdened (or really most of us were burdened) with a deficit in order to allow taxation to be significantly cut (largely for people who are getting ready to leave the workforce now). That deficit comes in the form of crumbling infrastructure -- our roads, our bridges, our power generation systems and our hospitals have largely been left to crumble or have merely been modestly maintained. Also our public service has been allowed to wither so that now that now it is old and worn out and about to retire en masse.

All of these things are things that will eventually have to be paid for by somebody and those somebodies were going to be future generations (or in many cases us -- who were the future generations when things were left to rot). Thus the spending that we are going to see in infrastructure today in fact is just the conversion of one form of debt (a maintenance debt) into another form of debt (a cash debt). The good thing about a cash debt though is it brings the maintenance debt out into the open and the current generation will have to start paying -- not our grandchildren. Thus current infrastructure spending actually reduces the burden on our grandchildren (provided the spending is not on junk).

Second, now is the best time to actually keep the costs of such infrastructure spending in control. Labour is available and labour costs are down (just ask anyone here in BC who needs to do something on their house). Material costs are down across the board -- steel, gravel and wood are all at lows we have not seen in years and energy costs are a fraction of what they were six months ago. Furthermore, the prospects of these things shooting up in response to the stimulus package is essentially nil (at best they are likely just not to continue to tumble). As a result we will be building this infrastructure when it is economically prudent to do so (contrast this will the Sea to Sky Highway upgrade which was built when labour and material costs in BC were at an all time high).

Notice neither reason is 'we need to deliver stimulus'. That reason is more controversial and likely to lead to shouting matches and all sorts of abuse but what can one say against fixing the hole in the roof when prices are low?

Lukey's Boat is Painted Red

Thanks to the Federal Court and some bad debts it looks like newfoundland folksong lovers and Great Big Sea are going to have to change the words to an an old classic.

Remorse

Two interesting takes on remorse and recognition of guilt this week.

Frost/Nixon hit the movie theatres here in Victoria (yes I realize that we are behind the times). There the central plot question (aside from whether or not David Frost would go bankrupt) was "would Nixon show remorse and contrition for what he did?" The pivotal moment of the show for the Nixon character is when he realizes that he has to choose between obfuscating his role in the Watergate break-in and cover-up or conceding that he had been involved and showing some remorse. He chooses, grudgingly, the latter route and while not being enough to save him from the trash bin of history his choice undoubtedly allowed him the modest rehabilitation he did achieve prior to his death.

The New York Times magazine this week (for Saturday, January 24, 2009) looks at the massive financial scandals we have uncovered over the last few months and asks, "where is the remorse on the part of the perpetrators?" In surveying the various villains such as Bernie Madoff and Richard Fulds the article finds little remorse and no signs of contrition. What is even more remarkable in the eyes of the NYT is that there are no signs of angry mobs with pitchforks seeking to lynch the evildoers if they do not beg forgiveness (and maybe even if they do).

There may be a number of explanations for the differences in the times. An elaborate explanation could be built around the idea that we live in a remorseless age where we are not taught contrition. Even for Catholics the Pope has to make a cry for a revival of the withering sacrament of confession and in popular culture remorse is seen as weakness, at best. However, I think there is a simpler explanation.

Richard Nixon's sins were personal and were a betrayal. When Nixon was elected, the citizenry who voted for him genuinely believed in him. They believed he had the mind and the will to take the United States out of Viet Nam and redeem the country from what many conservatives viewed as the lawlessness of the 1960's. That lawlessness was, in the general culture, viewed as being a feature of the left or the counter-culture, rather than the right and the mainstream. What Watergate began was the process of demonstrating to Americans that lawlessness has become deeply entrenched in their very government. In time the details of the J. Edgar Hoover's actions would become public, but Nixon was the leading edge of these revelations for mainstream America. Once it became clear that Nixon could act criminally in small things (like break-ins and cover-ups, the idea that he could act criminally in big things (like carpet bombing Cambodia) became more comprehensible. It suddenly revealed to Americans that their leaders could be corrupt and that the United States was not an exceptional place or nation. Nixon's personal follies thus had a profound effect on the confidence of people in their country and democracy -- but they were personal follies.

The recent financial scandals are very different -- the personal follies of the various villains that have been brought forward implicate all of us on an individual basis. Bernie Madoff is a perfect example of this. He is the perpetrator of a Ponzi scheme -- that is a scheme where new investors essentially pay the old investors the money that gives them their return. The scheme carries on until it is not possible to find enough investors to put a new layer on the bottom of the pyramid and suddenly the last layer of investors starts asking questions, starts looking for their money back and the whole pyramid collapses. What is interesting about a pyramid scheme is that the man at the top (Madoff) is not necessarily the prime beneficiary of the fraud. Every layer above the bottom layer benefits from the folly of the lower layer. Most of the lost money has not vanished into caviar for Bernie Madoff; it has vanished into returns for other investors who were happy not to ask too many questions. If Bernie has to pay it back then why don't all the other layers who got a return on the same basis? Madoff ultimately will not show real remorse because many of his victims were, in fact, his willfully blind (though perhaps unwitting) accomplies.

Richard Fulds (the erstwhile leader of Lehman Brothers) is really no different. Much of the stock market and the reasons it exists is a glorified Ponzi scheme. Everyone who has an RRSP, a 401(k) or a pension supported by a pension fund is living in a world that is built on the assumption that there is always going to be another layer to add to the pyramid to support dreams of Freedom 55 (or Freedom 60) by generating unending returns of 8%-12% year after year. We need this to make the idea that we can run a society where people live to be 80 to 90 years old but leave the workforce at 55 or 60 after entering it at 25 or 30. This model depends really on a large group of investors (aka "marks" for people like Fulds and Madoff) being around to support the huge numbers of non-workers who depend upon their daily bread coming from investment return. Until recently the new layers came from young domestic workers entering the workforce but in recent years, as the baby boom ended, we have come to depend more and more on our marks being supplied by Asia and, I think, we are really seeing the end of this dream now.

Slowly we are all waking up to see that thoughts of early retirement and long comfortable years of sailing in the Caribbean were fantasies. For the millions who are all ready retired or about to retire and were depending upon the money that Madoff and Fulds and their like were supposed to bring in from new generations of marks, this is a fearful prospect given their savings earmarked to support them through those years has largely vanished and they do not have twenty years to wait for their investments to come back again. For the younger ones the prospect of working into our late sixties and early seventies and setting our retirement goals at a somewhat more modest level is a prospect we are starting to become adjusted to. All in all I suspect this is not a bad thing -- the prospect of 20 years or more of shuffleboard gives me dread -- but it is a real adjustment in our vision of our lives.

As for Bernie and Richard they are not remorseful because they look at us as accomplices -- we wanted the return and the dream and wanted them to do what had to be done to deliver it.

Popular Mandates and Getting the Worst of Both Worlds

Tom Flanagan, Stephen Harper's mentor and number one fan, continues to be outraged by the prospect of the House of Commons thwarting Harper's agenda and possibly replacing it his government with a coalition (an increasingly unlikely prospect given Mr. Ignatieff's silence on the matter). He recently wrote a column in the Glove (on January 9, 2009) suggesting that the mere prospect of a coalition is an affront to democracy and our constitution. In doing so he acknowledges and skates past the actual constitution that we have and ignores the actual history of Parliamentary democracy. In doing so though he advances a theory of Canadian democracy that will give us the worse of the American system combined with the worse of the British system.

In the United States the executive (the president) is elected or appointed by the elected president. It has its own political powers which it can exercise irrespective of the support of the Congress. It can thus claim a mandate directly from the people and (as was demonstrated by the outgoing administration) can act highly independently to form policy and shape the law. However, the converse is equally true, Congress is free of the executive and can make its own decisions and exercise its power in ways that limit the exercise of executive power without bringing down the government. There is no concept of a 'vote of no confidence' in the United States and issues have to be worked out by give and take between the two major political players (the President and Congress).

Under the British system, the executive theoretically has independent powers but cannot use those powers to achieve major policy goals without the support of Parliament, particularly the House of Commons. Thus at every stage the executive has to show that on any significant matters it has the support of the Commons and when it does not it either has to back down, resign or have an election called to have the public settle the matter. These options are all options which have played out in British history. Indeed, Winston Churchill came to power at the beginning of the Second World War by displacing a majority government that had been elected with a popular mandate through a revolt in the House of Commons. The story of Churchill coming to power is told in Lynne Olson's book "Troublesome Young Men: The Rebels Who Brought Churchill to Power and Helped Save England" which illustrates beautifully how the Parliamentary system can force the executive to change in the face of crisis.

The opening of Olson's book is instructive though as it shows us a scene very reminiscent of what we saw last fall. Prime Minister Chamberlin, arrogant and stubborn because of his principles and electoral victory governed with a "my way or the highway" philosophy. When faced with opposition from some of his own members to a proposal to adjourn the House of Commons for the summer months, he declared the vote to be a matter of confidence and instructed the whips to make sure ever Conservative toed the line or suffer consequences. So too in Canada the give and take between Parliament and the executive has been stifled because Mr. Harper (as have other Prime Minister's before him)has treated every vote as a confidence vote. Thus on every matter the members have been faced with the prospect of forcing an election or a change of government if they decided to face down Mr. Harper.

This is how we end up with the worst of both worlds. We end up with a strong executive that is not elected and a Parliament that cannot act out of fear of bringing down that executive and forcing an unwanted election or an election they do not have the money to fight. The only way to cure this is either to move to a system of actually electing the executive (thus freeing Parliament to oppose the Executive from time to time) or to restore power to Parliament by recognizing that sometimes Parliament can cause governments to change without the necessity of a new election.

Professor Flanagan was born American and has lived in the one party state of Alberta throughout his career. He has a tin ear for the ins and outs of Parliamentary democracy which is best understood in this context. He is used to strong executives (from the United States and Alberta) and castrated legislatures (from Alberta) and cannot understand the sight of anything different. It is a pity though that this is who is teaching the next generation of young minds in Alberta. At least we can ignore him in the rest of Canada.