Thursday, December 20, 2007

Mince Pie

You learn something new every day. Last night I actually found out that I have a friend who was brought up eating mincemeat pie -- you know, the sweet Christmas treat -- with real meat in it. Through all my years I always thought it anomalous that something would be called a 'mincemeat' pie and consist principally of chopped fruit (albeit with some suet in it). I chalked it up to one of those British food humour matters like 'sweetbreads', which always seemed to me to be an extremely euphemistic name for pancreas being neither sweet nor bread.

Well a little googling reveals that in fact there is a history of meat in mincemeat pie although the Wikipedia piece on mincemeat pie suggests that my experience is more the norm (that is no meat). However I did find one article on the history of mincemeat pie which actually relates a story about mincemeat pie being made with whale in Boston in the 1800's. Now that would have been interesting.

In the end there is no reason why the pie should not have meat in it. There are some types of meat that are just made for sweet situations. Duck, for example, calls out for sweetness and the best duck dishes -- Canard a la Orange and Peking Duck -- are definitely sweet. Similarly, lamb and Major Grey's Mango Chutney go together like hand in glove. However there are some other meats that I am a bit more dubious about in the context of a sweet treat (candied beef just makes me sceptical).

The warning has been given; the gauntlet thrown down -- Christmas Eve will be Mincemeat Pie with real meat.

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Christmas Deviance

No not that kind of deviance -- that's for New Years. This Christmas we are doing a few things differently. I am not sure if we will be doing them better or not, but just differently.

First, no Christmas party this year at Casa Janes-Hounsell. I am not sure that this is one of the better innovations but there it is. The fall went by too quickly and organization flew out the window so mass drunken revelry will have to wait for another occasion (we do have some friends with the half century mark coming up on them -- they should not have to throw their own party).

Second, no trifle on Christmas day. I have spent the last few years experimenting with trifles and enjoying delicious, boozy post-dinner sweets. I am getting the feeling though that the Christmas dinner dining crowd want something not so mushy and layered this year -- but they are not getting away without the booze. It is going to be a traditional plum pudding this Christmas. This will be another blast back to childhood as I can still picture the adults struggling to get the brandy to properly ignite so that the blazing pudding could be marched to the table (as a kid I loved anything that had the potential to burn the house down).

Third, no turkey -- it is going to be prime rib roast for Christmas dinner this year -- something with an exotic sauce or a spicy crust (here is the current recipe that is leading the race). What is the point of having a small Christmas dinner with a few friends if you cannot avoid the bird designed to feed an army of kids, senile maiden aunts, drunken uncles and exhausted grand-parents? It does not matter what we do, our picky eating daughter will resist, so bring on the roast beast I say. The best part about it is that it gives a good excuse to make Yorkshire Pudding -- yeast based dough quickly cooked in beef fat; I ask you, what could be better (there must be a way to work bacon in there).

More plotting ahead -- this is just so much more fun than thinking about work or any of the other mundanities of life.

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Monday, December 17, 2007

The Other Side of Multiculturalism

The Supreme Court of Canada issued a judgment recently over the issue of the secular courts being able to intervene in situations where a divorcing husband refuses to cooperate in the process of granting a proper Jewish religious divorce. The Court held that the courts could intervene and could actually grant damages against a husband who refused to cooperate in such a process after promising to do so in the context of a secular divorce settlement.

To my mind this presents another side to the issue of multiculturalism. Multiculturalism is often presented as a pernicious surrendering of authority over the affairs of persons who should be protected by the state. The recent murder of a young woman at the hands of her father over the issue of wearing the hijab (or, I think, really over the failure to submit to traditional fatherly control) has certainly brought this debate back to the fore in Canada. What the Supreme Court of Canada's decision shows, however, that what comes with decision to pursue one's beliefs in a multi-cultural society is ultimately a submission to the rule of law and civil authority. That authority has to shape its processes to allow different cultures to operate but there ultimately is a limit and that limit is the price of admission.

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Thursday, December 6, 2007

The Bedeviling Issue of Robert Latimer

Robert Latimer was denied day parole yesterday essentially because he declined to say that he regretted killing his daughter over a decade ago. This, of course, was hardly surprising since he steadfastly maintained throughout this time that he killed his daughter as an act of mercy to relieve her from the misery of her life with cerebral palsy. Mr. Latimer was convicted of murder but his case eventually winded its way to the Supreme Court of Canada on the issue of whether or not a constitutional exemption from the minimum sentence for murder should be carved out for him given the circumstances of his case (the Court decided no) (in fact Mr. Latimer's case made it to the Supreme Court of Canada twice as an earlier conviction was overturned because of improprieties in the way in which the jury was assembled).

My own view is that the Court arrived at the right decision when it held that Mr. Latimer's conviction and sentence had to be upheld. In Canada we have not even come to a societal consensus on the issue of assisting a person of full mind commit suicide (see the Sue Rodriguez case). The issues around a parental killing of child who is disabled and unable to communicate her wishes on an informed basis are hopelessly more thorny. The fact of the matter is that it is impossible to genuinely appreciate the true significance of the genuinely held belief "I must kill her because I can not bear to watch her suffer any more" -- who is truly being shown mercy when that sentiment is acted upon? Is it mercy for the suffering child or is it mercy for the suffering caregiver? Moreover, there is a strong sense of ownership over a child that is being asserted in such cases -- "This is my child so I can decide whether she lives or dies."

This, however, does not make the Parole Board's decision right. Our society has sent a clear message about Mr. Latimer: he murdered his daughter contrary to the law and was given the full sentence mandated by the law. Now he is going through the process that every criminal in Canada is entitled to go through to ease their re-introduction to society. The core issue in this regard is not to force the person to confess and repent: it is to ensure that they are safe. The reason repentance is generally sought is not because this is the price of freedom but because it is an indicator of safety. Here though no-one thinks Mr. Latimer is going to rove the streets looking for children to kill. The reality is he will go out into society and perhaps advocate for change in the law -- something every Canadian has a right to do.

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Saturday, December 1, 2007

The United States Refugee Law Tried in Canada

The Federal Court just released an amazing judgment which has received some reasonable play in the press but which, in fact, has not received anywhere near the attention it deserves. The case was a challenge to an agreement between Canada and the United States that allows Canada to essentially immediately, without a hearing or review, return refugee claimants who come to Canada through the United States to be processed in that country's asylum system rather than Canada's. The challenge essentially forced the Court to try the question of whether or not the United States' asylum laws satisfied basic international law norms and Canada's Charter of Rights and Freedoms. In a lengthy judgment, Mr. Justice Michael Phelan essentially said that the United States' legal system failed on both counts.

Justice Phelan held that the United States' approach to refugees, particular around its treatment of people even distantly, unwittingly or peripherally linked to what the USA PATRIOT Act now describes as terrorism offends basic international norms (which are binding on Canada) governing not returning people to countries where they face the threat of torture or other such dangers (a principle called non-refoulment -- gotta love these international lawyers). Justice Phelan found the system also deprived the refugees (remember they have ended up in Canada and so have some level of Charter protection) of their right to 'life liberty and security of the person". in the case of refugees fearing persecution because of sexual orientation, the Court also held that the United States' approach to claims based on this sort of persecution meant that it would offend the equality rights contained in the Charter to ship these folks off to the United States to be dealt with there.

It will be interesting to see how this judgment will be dealt with on appeal (and it will be appealed). I expect there is a real chance that the appellate courts will overturn the decision but will do so in a way that will leave the government in a bit of pickle. I doubt that the judges will overturn Justice Phelan's findings about the inadequacies of the the United States' legal system. Instead they will likely say that this agreement is fundamentally political in nature and absent evidence that the United States is an absolute despotic, dictatorship -- please be quiet out there Noam, we know your views on these matters but no court will accept them -- the Courts should not interfere with the decision to make such an agreement.

The difficulty that this will pose for the government is that it will be faced with the findings that the US system is fundamentally at odds with basic international law norms around the treatment of the most endangered people; is inconsistent with the basic norms we have around life, liberty and security of the person and discriminatory and nevertheless we ship people back there to face deportation to torture and death. It is no accident that Justice Phelan specifically cited the Arar case to cast doubt on the United States' approach to deportation and its possible motives in dealing with people merely suspected of terrorism. What does a government do with all of that?

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Red Fish Blue Fish

The great thing about having associates (that is, younger employed lawyers) when you are a partner type lawyer is that aside from the fact that they are smarter then you and consistently make you look good, they have a life that you can occasionally borrow or steal from. My associate Dominique demonstrated this recently when she made a comment to me the other day about a new restaurant, called Red Fish Blue Fish, in a shipping container that served excellent fish and chips that had to be visited.

Lately I have been going through a period of unseemly self-pity and angst over a number of work related matters and as is generally the case at such times I am capable of persuading myself that calories consumed in such a state -- no matter how greasy or slimy -- do not add weight or clog arteries (contrary to all evidence at my waistline). Thus yesterday for lunch I headed off to the packing crate and discovered the new best fish and chips joint in Victoria.

There is no shelter there -- which is not so good for what will likely be the coldest winter in a while according to the gurus at Environment Canada -- but it mattered not. The chips were crisp without being dessicated. The halibut was cooked with a batter that crunched but was not cremated. There was malt vinegar and excellent tartar sauce. All was good and delicious.

Oh yes, the fish supposedly is all caught sustainably and the recycling containers were all easily accessible and nicely labeled -- so you can feel virtuous. Which is a good thing, as you actually will not feel slender. Ah well, lots of time for weight loss in the grave.

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Monday, November 26, 2007

Rolling the Dice with the Public Good

There has been a lot written and there will be a lot more written about the Roger William judgment that came down last week. Justice Vickers savaged the positions of the Government of Canada and the Government of British Columbia, effectively holding that the province's forestry legislation does not even pass basic constitutional muster and almost holding that most provincial resource laws were displaced from a 2,200 square kilometer region in the interior of British Columbia.

The two governments (and all of us) were saved from the consequences of a finding of aboriginal title by a true legal technicality that may not matter for long. The judge held that since the Chilcotin had asked for all of the claimed area and had not included claims for parts of the claim area as a fall back position, he could not award them parts of the claimed area despite having proven their case in those areas. Most legal observers I have spoken to think this is a pretty shaky ground upon which to deny the Chilcotin their prize and it is a flaw that will soon be fixed either by an amendment to the existing pleadings, the Court of Appeal or a new case (or possibly all three). I expect that the judge felt he was buying everyone some breathing room by not trying too hard to get around that technicality and is hoping (as he pleads toward the end of his judgment) that everyone gets on with resolving things.

What the judgment shows is how close we are coming to chaos given the refusal of the governments to entertain even the remotest possibility that they might lose one of these big cases. If Justice Vickers had not relied upon the technicality the results would have been far more dramatic than they were (and don't kid yourself, while people have focused on the technical loss, the Chilcotin actually won the case on the basis of their non-title rights -- and every aboriginal group in the province has similar rights). From the moment of the judgment provincial laws regulating any land based resources -- trees, land, minerals -- would have been out and only applicable federal laws would have applied. Which federal laws? Well there's the rub -- there are none.

Back in the early 1900's the Government of Canada decided that the part of the Constitution that says that they have jurisdiction over "Indians and Lands Reserved for the Indians" meant "Indians and the Indian Act reserves". On this basis there is no federal legislation that speaks to the regulation of Indian lands off-reserve (south of sixty) and the entire focus of federal thinking and policy relates to the reserves. This means the Federal government essentially washes its hands of any Indians who cross the reserve boundaries (voluntarily or not) and whether teh issue is welfare or constitutional rights essentially says "over to you Province."

The Supreme Court of Canada said that this thinking -- that Canada's jurisdiction and responsibility ended at the edge of the reserves -- was fundamentally wrongheaded. The Court said that Federal exclusive jurisdiction extended over aboriginal title land as well. How did the governments react? Well for all intents in purposes they put their fingers in their ears (undoubtedly on the basis of extensive legal advice) and went "la-la-la-la" and cooked up various theories like "well there really is no title" or "the court really didn't mean it when it said that." On this basis they did nothing.

The other thing that did not change was the position of the government's at the negotiating table. Delgamuukw made it clear that there was real potential that aboriginal groups outright owned various pieces of land throughout British Columbia and had control over those lands free and clear of the Province's jurisdiction. Surely such a holding would have brought about some rethinking of the Government's mandate followed by the addition of new incentives and approaches to induce First Nations in the treaty process to sign treaties and those outside to come to the table. However this did not happen.

If one looks at the Final Agreements presently going through the process of approval now what one sees are agreements that are clearly poorer than the Nisga'a Final Agreement. Self-government is weaker; the overall package seems smaller and the fiscal arrangements more brutal. Even some of the gains that have been touted -- say the inclusion of governance and the exemption from the ALR for TFN -- do not represent gains on Nisga'a: they represent gains on hard line positions introduced by the NDP and Liberals post- Nisga'a. There is little here to bring the hard line nations to the table or to get movement out of the tables that have been stuck. Sure there will be more treaties but these will likely be small treaties in remote areas or (at the other extreme)treaties in urban areas where there is little left to fight over. Even in the latter case I wonder if we will see many more treaties given the incredible value of the tax exemption on urban Indian reserves and the brutal Federal approach to clawing back 50% of every dollar a nation earns to set-off against social programs (this is on top of the taxes that wage earning aboriginal people will pay after treaty).

British Columbia and Canada have rolled the dice with all of us. They have rolled the dice with aboriginal people hoping to bankrupt them in all or nothing games of court poker. They have rolled the dice with the economy by betting land, minerals, trees and chaos on high stakes games of bluff. All of this to avoid coming to grips with the fact that modern treaty negotiation and dealings with Aboriginal people will require flexibility, imagination and respect.
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Wednesday, November 21, 2007

Decision Day in the Nemiah Valley

Justice David Vickers will be bringing down his ruling today in the Xeni Gwet'in title case. This case lays claim to a fairly large area of land around Chilko Lake and its watershed on befalf of the Tsilhqot'in (Chilcotin)people.

It will be a mammoth judgement filled with details, technical language and subtle analysis but there will a few things to watch out for to get a sense of who really won the case:

First, does Justice Vickers award any title to the Tsilhqot'in? This will be a clear defeat for the Province which for years now has hung its hat on the idea that there is no aboriginal title in BC or if there is, itis confined to the reserves.

Second, does any area subject to title extend outside of the Nemiah Valley itself (where most of the Xeni Gwet'in reserves are)? If title is just found in the Nemiah Valley and not in places like the Brittany Triangle, Henry's Crossing, Eagle Lake and the Potato Mountains, then the decision is basically a draw -- there is aboriginal title but there is not huge amounts of it.

Third, does the area subject to aboriginal title include 'hunting grounds' or is it limited to more settled areas (as the judge describes them). If Justice Vickers makes any substantial award of hunting grounds to the Tsilhqot'in then the case should be characterizes as a rout for the Province.

Fourth, does Justice Vickers rule in favour of the Tsilhqot'in on the "Division of Powers" issue (this might be called things like the "Land Reserved for the Indians issue". the "Section 91(24)/Section 88 Issue" or the "Jurisdiction Issue". This is the real wild card in this case -- even if the Tsilhqot'in win less title than they hope for (which will be a huge disappointment for them) a win on this issue would be huge and would be a complete and utter disaster for the Province's legal team. For all intents and purposes this would mean that the Province is essentially removed from having any real control over the Tsilhqot'in's lands without the consent and cooperation of Ottawa. This is an issue for constitutional law junkies but it is the sleeper issue in this case.

Fifth, if the Province does have any real jurisdiction, how does Justice Vickers deal with the issue of infringement. The Provinces love the cases that same 'aboriginal rights are not absolute' and they are not. The question is though, does the Province, subject to having to chit-chat with the aboriginal people first, have the right to go ahead do mostly what it was going to do anyway? This is where Justice Vickers could strike a balance: aboriginal title could be across broad areas but be paper thin when push comes to shove or aboriginal title could over smaller areas but surrounded by very high fences.

It will be in this last issue that I think much of the really difficult reading is going to be found. This is the area where the freedom of the Crown to govern and the expectation of all aboriginal people that their rights mean something and deserve protection will be balanced and interwoven. This area will likely read as much likel a policy piece on constitutional reform as a legal treatise and will provide endless scope of room for discussion.

Whatever the outcome -- it will be an interesting few days for everyone.

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Saturday, November 10, 2007

Cathlolic Schools and the Protection of Minorities

My brother’s blog at Ranting and Roaring has an interesting reaction to a proposal that was made, largely in the wake of the Ontario election, that maybe the time has come to abolish the Catholic school system in Ontario. The essence of the reaction is that it surely cannot be right that where the protection of a Catholic school system was an integral part of the original ‘deal’ in 1867 that it can merely be done away with now that it is expedient to do so. This is particularly so, the reaction goes, given the historically disadvantaged position of Catholics in Anglo-Canadian society. Furthermore, there is no discrimination to be fixed as, has been confirmed by the Courts, the separate schools are a measure designed to protect a minority and advance their rights. In a final jab (working on the principle that it is always good to put your opponent in your shoes) David makes the point that the commentator making the proposal would react quite differently if the same proposal were made regarding the protection of aboriginal rights.

There is a great deal of merit in the reaction and it does raise a number of important questions. First up, it is entirely correct that there was protection given to Catholic schools in Ontario (and Protestant schools in Quebec) at the time of Confederation. This has been described as a part of the original “compact” underpinning the establishment of Canada. Here is what Sir Charles Tupper said about this in the House of Commons:

. . I say it within the knowledge of all these gentlemen...that but for the consent to the proposal of the Hon. Sir Alexander Galt, who represented especially the Protestants of the great province of Quebec on that occasion, but for the assent of that conference to the proposal of Sir Alexander Galt, that in the Confederation Act should be embodied a clause which would protect the rights of minorities, whether Catholic or Protestant, in this country, there would have been no Confederation . . . . I say, therefore, it is important, it is significant that without this clause, without this guarantee for the rights of minorities being embodied in that new constitution, we should have been unable to obtain any confederation whatever. That is my reason for drawing attention to it at present.

An extensive discussion of this, including a confirmation that the existence of Catholic schools and the extension of rights to those schools is not discrimination under the Canadian Charter of Rights and Freedoms can be found in the Supreme Court of Canada's decision in Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148.

It is also worth noting before wading into the waters of Constitutional amendment that the protection of Catholic schools has been the source of some of our most heated political debate, particularly around the abolition of Catholic schools in Manitoba in the 1890's. This was seen at the time as pure majoritarian attack on the rights of both a French and aboriginal (Metis) minority and does not stand as one of the prouder moments in our history.

However, as I have commented before, the existence of a publicly funded religious school system in Ontario does raise a number of public policy questions which do impact upon ensuring a strong sense of social cohesion in a society which now has many religious minorities. In 1867 the burning questions was how can we split Canada into two provinces (Ontario and Quebec) and ensure that the religious minority in each are not obliterated through the abolition of their school system? Remember to that this was happening the context of a world where in the not too distant past qualification for public office had been tied to being able to swear that one was a good Anglican and had nothing to do with the infamous Pope at Rome. The question today though is quite different -- we now live in a society where there are many religious minorities and it is inevitable (no matter what any Court says) that many of them will feel resentful and excluded when they see one religion getting a publicly funded school system while they do not.

Without trying to say what Ontario should do (that is a political question which requires a political debate) I think that the moral/legal questions raised at Ranting and Roaring can be answered as followed.

First, it should be noted what the protection given to Catholic schools by s. 93 of the 1867 Constitution was -- it was a protection from being cut back or reduced by the Provincial legislatures. There was no equivalent restriction placed upon the Federal government and, indeed, it was always seen that the Federal government could legislate with respect to the rights of Catholic and Protestant schools. The proposal to amend the Constitution thus takes away a quite limited procedural protection and it only does so with the consent of the Federal government (which was the procedural protection that was promised in the first place).

Second, the context of rights protection has dramatically changed in Canada since 1867. Now, because of the Charter of Rights and Freedoms there are actually positive substantive protections given to minorities, particularly religious minorities. These include (1) freedom of religion and conscience (s. 2); (2) the guarantee of the right to vote and to stand for election to the House of Commons and legislatures (s. 3) (thus no established religion); and protection from discrimination (s. 15). These restrictions apply both to the Federal government and the Provincial governments. It is worth noting in this regard that these rights as package have essentially given Catholics in Ontario (and Protestants in Quebec) far stronger protection from what they feared -- that is being forced to send their children to a Protestant school -- than s. 93. No government today could create a public school system that mandated religious education, much less religious education in a particular faith or creed.

Finally, David's point about aboriginal rights is without any real merit. The proper analogy to s. 93 (the section that protects Catholic schools) in the aboriginal context is s. 91(24). Section 91(24) is the provision in the 1867 Constitution that places the Federal government in charge of "Indians and lands reserved for the Indians". The theory again being that we would protect a local minority (the Indians) from a local majority (the settlers) by putting their affairs in the hands of a more distant, less directly interested government (the Federal government). Ironically in 1951 the Federal Government all but gutted this protection (except for treaty rights and reserves) by passing s. 87 (now 88) of the Indian Act which essentially said any Provincial laws that were unlawful because they interfered with the Federal power over Indians were made lawful as Federal laws. The complete abdication of the Federal role in protecting aboriginal rights is exactly one of the things that led to the passage of s. 35 of the modern Constitution.

Thus Catholics today (just as with aboriginal people) have stronger substantive protections of their rights than they ever had before. They are protected from being faced with qualifications on office or with forced protestant education. They are protected from discrimination. The question then is whether the social cost that comes in terms of dissent and a feeling of exclusion by other minorities is outwieghed by the social benefit of maintaining the Catholic schools. Answering this question is not simple and will require a real dialogue with the Catholics and others in Ontario. My choice, it I had one, would be to move on from an archaic system and reap the social benefits that come from a coherent secular public school system. This does not really answer the question of whether or not as a society Ontario should invest in this debate now.

My own feeling is that abolishing the Catholic schools system will not actually address the issue for many of the minority religions (who are largely driving the debate) in such a way that it is worth having the debate now. While the debate is framed in terms of discrimination -- why is it that the Catholics get while the Jews, muslims and others do not? -- that is not really the issue. The real issue I suspect is that many Jews, muslims and others object to having to send their children to a secular system which does not inculcate a core respect for religion and foster adherence to their parents' faith. It is for this reason that I expect many minority religion parents send their children to Catholic school -- even if the children are not educated in their parent's faith at least they are educated in a religious environment. Tearing down the Catholic school system will not change that and will not assuage the feelings of many minority religious parents.

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Wednesday, November 7, 2007

The Difficulty of Quantifying Health Care Quality

Kudos to John Ibbotson for taking on the way in which the press throughout the world reported on a recent report evaluating health care systems around the world (a link to his column for Globe insiders is here). Media around the world looked at the numbers and wrote headlines around the worse thing that applied to their nation (in Canada it was waiting time) and did not focus on overall impression.

The danger in doing this is that it tends to frame the debate over approaches to health care in misleading or narrow terms. For example, in Canada the debate is largely framed around waiting times and so a stand alone headline like "Waiting Times Worst in Canada" will tend to be used as fodder for the the U.S.-approach-is better-camp. But here is the analysis (as reported by Ibbotson) of the overall picture:

For while some countries do better at some things and worse at others, only the United States, the report concluded, "stands out for cost-related access barriers and less-efficient care."

U.S. health-care statistics chill the blood. One-third of U.S. adults are uninsured or underinsured. Twenty per cent of American adults had serious difficulty in paying their medical bills last year. Thirty per cent of people with insurance had to spend more than $1,000 in additional out-of-pocket costs.

Although the United States expends far more of the nation's wealth on health care - 16 per cent of GDP, compared with 10 per cent in Canada, Australia and Germany - many Americans simply can't afford to spend what it costs to stay well.

"Forty-two per cent of chronically ill adults said that they had skipped medications, not seen a doctor or forgone recommended care because of costs - a rate two to eight times higher than rates in other countries," the report observed.

And this fascinating comparison: "U.S. adults often report waits for primary care, find it difficult to get care after hours and end up seeking care from ERs - joining Canada with symptoms of primary care under stress."

"While there's no clear leader," among nations in the timely and efficient delivery of health care, said Cathy Schoen, the report's co-author, in an interview, the United States is "much more consistently at the bottom of the pack."

This commentary would obviously frame the debate over the Canada versus the United States approach very differently.

The waiting time measure is a particularly tricky measure to look at for a number of reasons. A few example serve to illustrate the difficulty of assigning meaning to a waiting time measure.

Suppose you have a procedure with a 100 person waiting list which results in a ten week delay (assuming that the list is worked through simply as a first in, last out queue). Then suppose that the great gods of medical accesss walk by and say, "to stay in this line-up you will have to pay $5,000 when you access the procedure"). Immediately 30 people leave the line and a 100 person waiting list becomes a 70 person waiting list. Does this mean that the resource is being allocated 'correctly'? It all depends upon what 'correctly' means.

Similarly, suppose that you have a population of 100,000 and there is an objective requirement at any time for 0.1% of the population to access the procedure on a mdeical basis (that is there are objective medical indications for the procedure). In one community access to the procedure is gained after initial family practice screening and 100% of the 100 cases are recognized but there is only one facility to do the procedure, leading to a 100 person queue all of whom need the procedure. In the other community access is dictated by individual patient choice subject to ability to pay. There the system leads to five facilities, 250 people in the total queue, but only 25 of the 100 who need to be in the queue actually getting there. The queue in the second community is only 50 people long but the cost is five times higher and only 25% of the community in need is reached.

A third scenario to consider is this: suppose there are two procedures. One needs to be done within one week of diagnosis and the other within six weeks of diagnosis to be medically effective. Suppose procedure number two though is both more profitable to provide and in higher demand with those with more disposable income. The net result is that as the market plays out in one country (say where access is allocated by individual ability to pay) access to both procedures is achieved in three weeks (that is for the first procedure everyone is two weeks late, for the second, three weeks early). In the second country where the resources are allocated on some mixed basis (single payer, private providers, state providers) the result is an average of one week for procedure one and five weeks for procedure two with an average queue time of 4.5 weeks for both procedures. In country two the average wait time is longer but everyone gets timely treatment.

These examples are not based upon real scenarios but they are designed to demonstrate that looking at a single variable -- wait times -- without analyzing other variables to get an overall picture is a mug's game. Furthermore, whether or not a system is successful depends upon the criteria for success that are established in advance. For example, if the criteria that is established is "maximization of freedom to use my personal resources to maximize my health care" you get a very different measure of success than if the criteria is "to maximize timely access to medically necessary procedures across all procedures and a national population." Both are measures that have moral and philosphical foundations and require serious value judgments to be made in order to answer the question, "is the available medical care system working?"

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Tuesday, November 6, 2007

Senate Reform and Referedums

It is always nice seeing new friends play together happily in the playground but when it is Stephen Harper and Jack Layton who are having fun any sensible teacher will make sure the fire extinguisher is at hand.

Senate reform in Canada is long overdue and there is only one reform that makes sense -- abolish the place. It is an affront to democracy in a modern era to have an unelected institution whose principal function is to frustrate democratic decision making (well that is what "provide sober second thought" really means). In terms of regional representation and balance, in a federal state we supposedly protect regional or local interests by having regional or local governments -- provinces.

Steve and Jackie-L though have come up with an idea -- let's have a national referendum to poll the public in a more formal way about abolishing the Senate. This is a bad idea. First it serves no purpose -- we all know what the man in the street thinks -- abolish the Senate. It is only policy wonks and die hard Reformers who still think of the Triple-E Senate (a slightly worse affront to democracy).

Second, it opens the constitutional reform can of worms. Whether the referendum passes or not, the only way to implement it is through the amending process in the Constitution. This requires seven of ten provinces to sign on to the amendment. The difficulty come as each province arrives with a shopping list of amendments that will absolutely have to go along with the abolition of the Senate. Immediate deadlock will ensue. Remember the premiers of every small province will be opposed because the Senate gives those provinces greater power nationally (Danny Williams would love to say "no" and this will give the premier of PEI the one chance to have his (or her?) name known by anybody on the other side of the Confederation Bridge). Quebec will oppose because the Constitution is an illegitimate document anyway and there will be a list of things that will have to be implemented to make up for Quebec's loss of status through the abolition of the Senate. It would then just take one other province to torpedo the project.

This brings me to the third problem: the disappointment of the public. It is one thing to have Senate reform bubbling away as one of a myriad of issues that the public occasionally considers; it is quite another to have a formal referendum and then fail to follow through. The cynicism this will entrench around the democratic process is something we really do not need in our country right now.

Why has Jack Layton taken on Senate Reform? Well he knows that this is something that will appeal to his new pal Steve and will put the old school yard bully the Liberals (led by that wimp Stephan) into a tight spot. It will put Stephan in an exquisitely difficult position in fact. Immediately Stephan will have ask, "do the Liberals stand up for Senate abolition (which would destroy their last bastion of power if implemented)?" Even if Stephan supports Senate abolition he creates a quandary -- he alienates his supporters with their sinecures in the Senate and further undermines the Liberals' position as a credible opposition (since they will oppose nothing). It will be even worse for Stephan then if the senators oppose the referendum and Stephan is then called upon by Steve and his new ally Jack to discipline those unruly Liberal senators. When Stephan can't, well, we already knew he was ineffectual, right?

Thus this proposition is nothing but short term political fun for Steve and Jack, unless, of course, Stephan supports it and brings the senators into line thus having the referendum proceed. This would actually be the best move for Stephan, provided he can actually get the senators onside. It would be cynical beyond comment given that Dion will know full well that the abolition will never be implemented -- but then that is Steve's problem, not his (unless Stephan wins the next election -- now that would be a whoops).

Why doesn't Jack support a referendum on something that really would advance the NDP interest as it is likely to exist for many years to come -- say, a referendum on proportional representation with a properly funded 'yes' committee. Better still, it is a minority Parliament and the idea has appeal to the Conservatives, why not just implement some form of proportional representation? The answer to that question is that Jack has set his sights too low. He would consider it his crowning achievement if the NDP displaced the Liberals on the progressive centre/left and became the 'real opposition'. The problem with that is that the most the NDP could hope for then would be to be a permanent opposition hoping for minority governments -- the Conservatives would rule forever.

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Monday, October 29, 2007

Losing Arguments -- Winning Wars

There are times that I think that those of us who do believe in the theory of human caused global warming should give up trying to win the argument and focus on trying to win the war. What do I mean? Well, there are many environmentally good things to do that can and would get done if the temptation to gloat and to pound the anti-human contribution crowd into the dirt is resisted.

I will give you two examples, one big and one little.

Obviously for those of us in the humans-contribute camp achieving a decline in the use of fossil fuels would be a good thing. Our reason for thinking so is that this would reduce the impact of human activity on the tendency toward higher temperatures and thus be more environmentally sustainable. There are two big ways to achieve this: (1) energy supply substitution and (2) reduction in dependence in overseas goods (particularly if managed in China). What my observation relies upon is the fact that there are other constituencies out there that would share goals (1) and (2) while at the same time being climate change doubters. For example, goal (1) would be supported by all sorts of people who are uncomfortable being held hostage to the hostile, Islamic communities of the Middle East. It would also be supported by the nuclear industry. Both of these communities are filled with climate change skeptics but would happily support moves towards alternate sources of energy (the trick is making sure the move is not to coal). Thus you can act together in a way that could help win the war (move away from fossil fuels) but if you tried to get agreement on why you were doing this you would likely be stymied.

A second, smaller example flows from the future response to the fires in California. From a climate change perspective this gives an opportunity to lobby against urban spread by highlighting the dangers of permitting the building of suburbs in the urban-forest interface. This goal can be furthered by aligning with fiscal conservatives who naturally should want to resist public aid to bail out uninsured or under insured homeowners who will undoubtedly be seeking (US) Federal and state aid to defray the costs of their bad choices of living in a firetrap. The introduction of new building codes designed to reduce the possibility of such fires (which will inevitably drive up the cost of building in the interface or make it impossible) would also help in this regard. The point is the same, a natural alliance exists between fiscal conservatives who should be persuaded that the public should not be required to subsidize private misjudgments and the anti-global warming segment that is built on a shared vision of outcome but not reasons.

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Passing Time

There is a part of me that longs to be a conservative. Not a conservative of the type that presently occupy the halls of power in Ottawa, but a conservative in the sense of a person who thinks that change for change’s sake is not necessarily a good thing. Of late I have been thinking that there are a number of things that I see as dying arts whose loss will really change our society. Sadly their passing is largely going unmarked and they are going un-mourned for they are each passing quietly by fading out of our lives.

I am going to (eventually) comment on four of these: playing cards, baking bread, making music and conversation.

The first of these is a trivial matter, the art of playing cards. When I was growing up for reasons that do not merit going into, I often (very often) found my self at school early. We were not allowed into our classrooms and the library (despite the legend of the school library, it was pathetic) was out of bounds, so the early birds were gathered in a foyer to kill time under the occasional supervision of the custodian. To pass the time we played cards – a game called 120’s or auction.

Auction is a game that is not played (except by expatriates) west of Cape Breton but amongst Newfoundlanders of my parents’ generation and above, it (and its variants) was one of the leading social pastimes. Played in fours or sixes with partners it was a whist-like game that was simple enough to allow for drinking, eating and loud conversation during play. It also had a body of informal rules of play superimposed upon Hoyle’s rules (it is in Hoyles under another name) the failure to follow marked one as either not attentive or a novice. Daring not to play trump (if you had one) as the last member of the defending team on the first round was a crime that would bring mild rebuke in the afternoon, loud condemnation in the evening when the kids were asleep and the alcohol out.

In university I played less auction – there were more mainlanders around who did not know the rules – and played more hearts, sergeant major, whist and bridge. At Memorial the main venue for this was the Physics Societyor the Chem Cafe. In two years at Memorial the only discernable connection between the Physics Societyand physics that I could find was the location of the room and the fact that the children of the physics professors seemed to all be members. Otherwise the only physics that was studied or discussed there was the fluid dynamics of liquids with high ethanol content. The Chem Cafe was also a locale named food service centre, although perhaps more aptly named given some of the peculiar colours, scents and flavours that would emerge from the kitchen. It was likely the only place where French fries could be considered a healthy choice given the relative dangers of the alternatives.

On any given week day one knew that a stroll to the Physics Society would find a group of people around the table in the centre of the room playing cards and discussing (generally in a heated fashion) some topic or another. The group would very quickly accommodate a new arrival finishing whatever game was at hand posthaste and moving on to a game that could accommodate the arrival of an additional person. When time for a class came (provided that the student was inclined to go) the game at hand would similarly be re-arranged to accommodate the loss of a player and the games would carry on. Except for the mandatory Sunday closing and the occasional Saturday night drink fests, I expect there was always a card game in progress at the Physics Society. It was there that I learned bridge and hearts as well as numerous interesting facts about the denizens of St. John’s (there are number of now doctors, lawyers and politicians who would not necessarily want the gossip that was passed around at the Physics Society in the mid-1980’s to make the streets today).

The great card game continued through Grad School and Law School – my roommates and I played cribbage and there was a grad school crowd who played hearts and bridge. The last great hurrah of my card playing career was at the Bar Admission Course. This was a program administered by the Law Society of Upper Canada after the completion of Law School and the articling year. It was six months of tedium and ha snow largely been abolished. However, it only took half days and the study was not that difficult (it was a true study-to-what-will-obviously-be-on-the-exam type of course), particularly given that it was marked on a pass/fail/honours system and there was no benefit to getting an honours. For most of the course there was a group of four of us who would get together at least once a week in the afternoon and play bridge. Again, we shot the breeze, although now the topics became more serious and more obviously linked to the beginnings of our real lives. We ate a lot of good food (my father went through a period of making dill pickles which exactly corresponded to this phase) and drank better grades of alcohol.

Then it ended. Our foursome went its separate ways (first to big firms, then to separate cities – two in Ottawa, one in Toronto and one in Victoria) and for some reason I never really found another card playing clique. At first it was easy to chalk up to being too busy but as time has gone by it seems pervasive. I know no-one in my circle of friends and colleagues who plays cards of any sort on a regular basis. There are no regular foursomes for bridge. The weekend auction sessions do not happen. No-one plays hearts, whist or cribbage except on an occasional nostalgic basis. A number of us have talked about getting together to play but it never seems to get organized and there do not seem to be enough players around for it just to happen.

Busy-ness is one thing which has killed cards but I do not think it is the only thing. At a very deep level the blurring of lines between generations and the diminishment of admiration for older generations is a major factor. Growing up in Newfoundland, and I think other places, card playing was seen as an adult activity. Being invited to join the adults to play auction meant that you could be trusted to sit still, know the rules, concentrate and play. You had to earn your place, literally, at the table by showing the maturity to not whine, need too much help or to suddenly leave the table.

Another thing is the growth of computer games. Even without a handheld computer game as long as you have a laptop you have an instant amusement centre which does not require the trouble of organizing a group of people or committing a block of time. Indeed, on my own computer there is a game of hearts which effectively changes one of the most social of games (e-mail me if you want to know our off-colour name for hearts) into a type of solitaire.

Finally, and this ties to my next blog posting on this topic, there is the death of the art of conversation. Playing cards was typically not and end in itself. Instead it provided a pastime around which a social gathering could be constructed. The real centerpiece of that gathering was the conversation that ensued before, during and after play. These conversations ranged from pure gossip to wide ranging discussions of politics and religion (which could sometimes end the games with a fight) but they were an essential part of the play at whatever level they were pitched. For some reason now it seems that we do not desire – or rather pursue -- that kind of conversation in our lives anymore on a regular basis and without that the type of cards I played until my late twenties has no reason to exist.

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Tuesday, October 23, 2007

Two Blows for Democracy in the Courts

The Globe and Mail today reports two decisions which are blows for democracy. I will add links to the decisions once they are available on Canlii (or elsewhere).

The first involves Stephen Harper and a defamation (libel and slander) law suit that has been brought against him by a disgruntled Conservative candidate. A master (a type of administrative judge) in Ontario has ruled that the principle of parliamentary privilege protects the Prime Minister from having to testify at examinations for discovery (pre-trial interviews) until Parliament has been in recess for a period of at least forty days. The master mused whether or not the principle made sense in the modern era, but ultimately held that it was the law. Jean Chretien benefited from a similar ruling a few years back when he was excused from testifying about his spell as Indian Affairs Minister at a major aboriginal trial until after Parliament recessed.

The reason behind the principle is simple: a sitting member of Parliament should be tending to Parliament's business, not the Court's. The practicality of that adage should be evident from the experience of Bill Clinton (who was held not to be protected from discovery by the American executive privilege) and as result got significantally distracted (as did the whole American body politic) by the Starr investigation, the Lewinsky Affair and, ultimately, the impeachment hearings and trial. Similarly, when Mr. Chretien did testify he spent several days in court (and undoubtedly several days preparing) to essentially testify to nothing. One strongly had the feeling that the calling of Mr. Chretien was nothing more than a 'Hail Mary' pass which fell short and ended up looking like a stunt. If done while he was in office it would have been a fiasco.

While it might be said that these are infrequent occurrences, that, of course, would change if such law suits could be brought. At present there is no point in bringing such cases as Parliament rarely is in recess for forty days during a Prime Minister's term. Thus the desire to drag a sitting politician into court to testify cannot be satisfied (there are other methods for challenging government actions) and so such actions are not brought. If such actions could be brought we would see a lot more of them.

The second blow for democracy came from Justice Paul Perrell of the Ontario Superior Court who ruled that the forfeit of deposit rules for Federal elections are unconstitutional. The Federal Liberals, with the support of all of the existing parties, brought in a variety of election reforms designed to streamline the election process and make it more serious. These laws operated largely by penalizing parties that did not cross certain thresholds at the polls. These penalties included loss of party status, seizure of party assets and loss of deposits. The Rhinoceros Party (along with the Communist Party of Canada and a number of small Christian parties) was the first fatality but the wounded include the Green Party.

In practice what this regime (which has been struck down a piece at a time by the courts) has done is serve as a significant impediment for new parties to emerge. Thus it has entrenched the role of the existing parties and makes it close impossible for smaller parties or issue oriented parties (say like the Reform Party) to build momentum over a series of elections. I may not particularly have liked the late lamented Reform Party or like the various right-wing Christian outfits that spring up around a variety of issues and I certainly know many who detest the Green Party, but if our democracy is to work properly they and the people who support them have to have their shot. Too my mind, the health of a democracy is not just measured by the ability of such groups and their supporters to run and win, but it is also reflected in their ability to run at all and to have their views put forward without impediment. They may be marginal but they should be given an equal chance to prove that they are not or, if they are, to change that. If that means a few rhinoceros run through our polls on the frivolous fringe, well, so be it.

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Have an Artistic Halloween

All of us Victoria based ghouls and ghasts have an opportunity to take in a bit of Halloween culture that should not be missed. The Victoria Philharmonic Choir (Victoria's premiere full scale choir) is mounting two shows of the season appropriate Spectre's Bride by A. Dvorak (I have not figured out how to pull up fancy accent marks in blogger), at 8 pm on October 30 and 31, 2008 at the Farquarhar Auditorium (at UVic). Given that it is only weeks from having to listen to endless cycles of Christmas Muzak whereever we go and sit through endless choir Christmas concerts, why not take advantage of a chance to hear Halloween music? I admit Dvorak will be a bit heavier going than 'Rudolph the Red Nosed Reindeer' but you are over teh age of six, right?

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Sunday, October 21, 2007

The Indian Tax Exemption

There is nothing that elicits quite so much excitement in a discussion about aboriginal affairs in Canada as the notorious tax exemption embodied in s. 87 of the Indian Act. In the popular mind this exemption renders Indians 'tax free'. In fact, nothing could be further from the truth. In fact the exemption is a very narrow exemption tied to a historical policy where the governments set aside small tracts of land (the reserves) and then said that everything else was free for the taking.

In practice this means that for most Indians the tax exemption is worth next to nothing. When most of the reserves were set up, particularly outside of British Columbia, great pains were taken to make sure that land that might be potentially useful for settlement, agriculture, forestry, mining or most any other purpose was excluded from the reserves. Thus, there are a few reserves that are situated anywhere that is likely to produce jobs, rent or resource revenue that would lift anyone living on them above the level of destitution (there are a few spectacular exceptions to this rule). Thus most Indians make their income and spend their money in the 'commercial mainstream' and thus pay taxes on their income and transactions like every other Canadian. A recent pair of rulings from the Federal Court of Canada (Horn and Williams) made clear the narrowness of this exemption in holding that a business arrangement designed to extend the exemption to work done for the community in Toronto failed to get the benefit of the s. 87 tax exemption. Sadly, that picture does not make for such good rhetoric about race-based tax systems and the like.

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Friday, October 19, 2007

Northern Ontario and Diners

I am just back from a bit of a cross-Canada expedition, part of which saw me visit a couple of towns in Northern Ontario, including Kenora.

Northern Ontario does not impinge much into the minds of either Newfoundlanders or British Columbias, but when I visit there two things always strike me. One is just how much like rural Newfoundland and British Columbia Northern Ontario is. This is despite the fact that the trees are what most British Columbians would think of as weeds (although Newfoundlanders would recognize them as familiar) and the Canadian Shield is not like the geography of either of our two bookend provinces. Nevertheless, there is the combination of empty space, towns emerging out of the forest and vast distances which stikes a chord.

When I woke up on Tuesday morning (after flying to Winnipeg and driving like a demon to Kenora the night before), I had a quick shower and headed north to Grassy Narrows. When I went out to get in my car I was struck both by the silence and calm of the town -- something that is not all that common in any city, even St. John's and Victoria. I snapped a picture of the view just outside the hotel, which is situated beside Lake of the Woods.

I then also got to indulge in one of my favourite small town pastimes -- find the good breakfast diner. While Kenora, like most every other human settlement in North America and Europe, has its McDonalds, I found an excellent breakfast at Ted's in downtown Kenora.

No-one at Ted's was wearing a suit or tie (I felt a bit overdressed with a sports jacket on). The coffee comes in one brand. The waitress/cashier seems to know everyone by name and made a point (I noticed) of saying megwich to her Ojibway customers and speaking French to a couple of the (what appeared to be) truckers sitting at one table. The eggs and bacon were excellent; the toast was buttered; the hash browns were a mountain (though I did resist the latter).

While these palces don't necessarily need my encouragement (it was packed), I exhort you all: resist the packaged food -- eat at your Ted's today.

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Saturday, October 13, 2007

Why Does Electoral Reform Fail?

Since I have been a teenager the issue of electoral reform has been widely talked about. The fact that throughout Canada we have had governments, at both the national and provincial level, win massive majorities in situations where their share of the popular vote has been far less than their seat total would suggest is, to say the least, troubling. There seems to be a general feeling that there has to be some move toward some form of proportional representation in our electoral system and yet, when offered the choice, the electorate has rejected the process (or at least failed to rally together to a point where the reform could be approved). Why is this?

The failure is principally a failure of political leadership and, I suspect, an intended failure of policitical leadership.

First, it is important to recognize who the principal beneficiaries of proportional representation would be -- the smaller, issue oriented parties such as the Green's and the NDP. The losers would be the major centrist parties (the Liberals and the Conservative family of parties) and likely the BQ. Thus, the parties that have traditionally benefited the most from the first past the post system are the ones that are in the positions of leadership when these issues are put up to a vote. They recognize -- even if they dare not say it in public -- that once proportional representation comes into effect the world as they have known it comes to an end. It is perhaps for this reason that we see none of these governments merely moving to implement proprotional representation (which they all could do) or setting realistic approval threshholds.

Second, these two experiences in attempted electoral reform also put a lie to the idea of randomly chosen 'citizen democratic assemblies' as an alternative to the elected legislatures. In British Columbia the government established the Citizen's Assembly on Electoral Reformwhile in Ontario what was chosen was the Ontario Citizen's Assembly on Electoral Reform. In both cases these bodies consisted of randomly chosen citizens who met a few times every few weeks, went through education processes with academics, held public information sessions and debated different electoral reform options. In each case they came up with partial proportional representation systems which resulted in overall proportional representation while retaining the local representation element of the existing system. In each case the proposal was then put to a referendum and in each case the referendum failed to meet the required threshhold for approval.

Now, unless you are an immediate family member of one of these assemblies, I defy you to name a single member of either of them. I doubt any of you could now or could have at the time. I also doubt (except for any of you journalists reading) that any of you even watched a single session of either of these assemblies. For the most part they took place out of sight and out of mind -- even for the political junkies. Why was this? My own view is that this invisibility flowed from the very way in which they were put together -- throuh random selection of citizens without regard to whether those selected were or were willing to become community leaders in the way that ordinary politicians must.

Part of my reason for believing this is based upon Newfoundland's own experience with a Citizen Assembly in the 1940's. In the mid-1940's, just after the Second World War, Newfoundland was faced with having to make a decision about what form of government it wanted to have. It could have chosen to remain a separate Dominion, remained a non-demoncratic Crown colony, joined Canada or joined the United States. To help make the decision (and as a precursor to to referendums) an elected National Convention was convened to debate the options. This National Assembly galvanized the colony. People listened on the radio, read about the debates in the paper and attended the debates in person. My father, who would have been about 16 or 17 at the time has told me about attending at watching the debates.

Unlike the assemblies of nobodies that Ontario and British Columbia assembled, the National Convention contained a range of real leaders from throughout the colony. Some were major provincial figures, while others were minor local leaders but they all were characterized by the fact that they had to be willing to come forward and stand for election. Moreover, when they spoke they spoke not because their name had been randomly drawn off a voters list but because their local communities had chosen them to speak for them. Thus their voices mattered in a way that I would suggest the voices of the members of the modern assemblies did not.

Another reason the electoral reform proposals failed was the refusal of any political leader to really make them an issue that mattered once they escaped from the clutches of the citizen assemblies. In each case the elected political leaders of Ontario and British Columbia essentially just took the proposals and dumped them on the public's doorstep and said 'here it is, vote for it if you like it.' None of the leaders made electoral reform the centrepiece of their campaigns or strongly advocated for adoption of the proposed reforms. In neither province did the referendums become central issues and, not surprisingly, they both failed to spark public interest or increased voter turnout. Equally unsurprisingly they both then failed.

Again Newfoundland provides a counter-example as to how a referendum can play out where the political leadership is engaged. In the 1990's Newfoundland went through two referendums to decide on the fate of the publicly funded parochial school system. The first of these was advanced by Clyde Wells, the second by Brian Tobin. The issues were engaged politically and legally and there was a widespread debate within the Province. The second referendum resulted in a 73% vote in favour of abolishing Newfoundland's traditional parochial education system. A similar lesson can be derived from the active and lively debate around the Charlottetown Accord where the outcome was a result of an active debate in which politicians and public leaders were engaged on both sides.

Electoral reform has its pros and cons and there are benefits to the first-past-the-post system that not acknowledged. The reform of that system requires serious engagement from our political leaders and more than the desultory treatment that it has been given in two provinces so far.

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Tuesday, October 9, 2007

Waterboarding? Time for a Reality Check

Who would have thought that that the principal moral legacy of the second baby boomer president would be a stout defence of the use of what most of us would think of as torture? In the 1970's and 1980's there was a lurking feeling that the upcoming generation, hippies and flower children all, were going to cause nothing but havoc as they came to power and brought their left-wing, environmental, soft-on-the-bad-guys values to the table. The debate was not on what these young pinkos would do (that was obvious) but on whether the advent of flower power in office would be good or bad. All of this goes to show that it is extremely hard to predict the future.

Let's take, for example, a left-wing villian, say, Ronald Reagan, and picture him or any leader in his generation making an argument for waterboarding (we all know what waterboarding is don't we -- you know, tying a person to a board and immersing their head in water until they almost drown -- then pulling them out and repeating as necessary). Ronald Regean would have condemned waterboarding, said it was something done by our enemies (the godless commies), someting not done by our friends (except possibly by a few rogue elements) and certainly not something ever done by the United States or any civilized, western country. Even if American allies or friends were waterboarding prisoners, at least Ronald Regean would have lied about it -- or at least ensured that he had plausible deniablility around the issue ("I'm shocked, truly shocked"). For those us of leaning to the left or the libertarian end of the spectrum what was shocking about that era was the mendacity of that era -- everyone knew Augusto Pinochet and his clowns were torturing people, his supporters just lied about it. The same can be said on the left, Uncle Joe was torturing thousands, but the hard left just pretended it was not happening.

George Bush though is a different species -- he does not deny waterboarding (well, he avoids admitting it). He just denies it (and a number of other nasty things) is torture at all. On this theory, put forward by lawyers like John Yee and Alberto Gonzales, almost drowning a person is not torture because they don't die and they have all their limbs afterwards. Indeed, for Mr. Bush, waterboarding in the name of freedom is a virtue -- the American people expect us to keep them free from terrorist attacks after all.

This can only be described as insane. The common law recognized torture as an unreliable method of obtaining a confession almost three hundred years ago -- that is why confessions extracted by force have been excluded from court: they are unreliable, not immoral. The political leaders of the first three quarters of the twentieth century also recognized the real strength of the west lay in setting an example by following the rule of law, creating an environment free from arbitrary state action and protecting human rights. While there were differences about method, there was a commonality of vision and that vision would have excluded approving of waterboarding in the name of freedom.

Perhaps though the real sense of why the baby boomers were viewed as having poor potential for leadership was right. I am sure that when the parents and grandparents of the 1960's and 1970's looked at the culture of youth their underlying thought was "have they no shame?" For many in looking at Bill Clinton I am also sure that this was their principal reaction to his messy personal life. What is sad is in watching George Bush and his merry band of torture justifiers is that it is this thought that comes to my mind -- waterboarding for freedom? Do you have no shame? The problem is this is Mr. Bush's policy not his private life and there are real people being tortured.

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Friday, October 5, 2007

This Should Be Interesting

The poor police, they must be longing for the good old days.

A few years back the poice did their jobs based upon the assumption that has long as they did not randomly shoot a passerby for fun (in which case they might be charged with murder) they really owed no-one any particular duties that they could ever be held account for (except by firing).

This changed a few years back when a Court in Toronto held that the police could be held responsible by the victims of a rapist where the police did not take steps to warn potential victims of a danger.

Now the Supreme Court of Canada has held that the police have no particular protection from, and can be liable to, innocent suspects who they negligently investigate. Thus an investigation that is negligently carried out and thus results in harm to a person can give rise to a law suit against the officers (and their employers) who carrried out the faulty investigation.

While in the particular case at hand the Court held that the investigation was up to snuff, it is only a matter of time before a police force is held liable for a negligent investigation and the harm caused. Where this will get really interesting is where the police are faced with balancing their duty to potential victims against their duty to potentially innocent suspects. Fundamentally though this is a good ruling in that it affirms the idea that people who are given significant powers are not put above the law just so they can be free to use their powers -- like all of us they have a duty to act reasonably as called upon this circumstances. As the Chief Justice in the majority judgment said:

3 I conclude that police are not immune from liability under the Canadian law of negligence, that the police owe a duty of care in negligence to suspects being investigated, and that their conduct during the course of an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. The tort of negligent investigation exists in Canada, and the trial court and Court of Appeal were correct to consider the appellant’s action on this basis. The law of negligence does not demand a perfect investigation. It requires only that police conducting an investigation act reasonably. When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.

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Wednesday, October 3, 2007

The Enormous Cost of Tranportation

An parathentical comment in Neil Reynolds' column in the Globe and Mail today brought home to me how difficult the issue of really controlling carbon emissions is going to be (not that I did not think it hellishly difficult already). The column focused on how Canadian purchasers are suckers given the inexplicably higher prices paid by Canadians as opposed to Americans in nearby communities for the same goods. In the course of these comments he notes the following observation:

The [Federal Reserve Bank of San Francisco] observed that, in a globalized economy, distribution costs can be quite significant. It noted that Mattel buys a Barbie doll from a manufacturer in China for $2 [U.S.], sells it in the United States for $10 - but keeps only $1 for itself. The company spends $7 to get the doll to the store shelf where it will be sold.

Thus 70% of the price of the final product goes to paying for transportation of the manufactured good. This of course understates the actual portion of the costs attributable to transportation since the oil needed to make the plastic undoubtedly came from the Middle East, Africa or Russian and not from the oil well situated in the factory's backyard.

This brings how the point (near and dear to the cliamte change naysayers and the Harperites) that really controlling emissions is going to come at a real cost. The transportation of goods -- say wood from Canada to China or tables from China to Canada -- over long distances means burning fossil fuels and a lot of them. You can bicycle to work a lot but unless you are willing to adopt a strictly buy local standard or dramatically reduce your buying generally you are still going to make a significant contribution to the carbon going into the air.

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Tuesday, October 2, 2007

The Tainted Blood Saga Slowly Ends

Madam Justice Benotto yesterday acquitted the accused in the criminal trials brought in respect of Canada's tainted blood scandal. The essence of the charge was simple: these men and companies allowed contaminated blood products that infected seven children into the system after safe and effective means existed both to screen and purify blood products. So why were they acquitted?

As of today only press accounts of Justice Benotto's reasons available but the reasons appear to be what many expected and, in fact, are likely what they should be.

First, of course, the accused did not have the benefit of hindsight. After the fact it is easy to recognize that there was a clear public health crisis being caused by the blood system and also that the new mechanisms that had been introduced on the market were effective and safe methods of dealing with this crisis. At the time there were undoubtedly any number of considerations given the novelty of the techniques, including, did they in fact work?

This last question is not as easy as it looks. Remember that the blood system was providing products that were always in desperately short supply given the need. The tainted blood problem could have been solved instantly by turning off the tap -- stop all deliveries of blood products until a foolproof method of screening or cleaning was devised. Of course the result of this would be to kill hundreds if not thousands of people immediately rather than condemn some of them to the slow lingering miserable death that HIV and Hep-C cause. The same type problem arises if the new test causes too high a rate of false positives. Similarly, how should the decision makers of the day have dealt with the new heat treatment techniques given that they were yet untested in any serious way -- how would everyone have felt if they had undermined the effectiveness of the blood supply or introduced a new problem?

It is a bedrock principle of law, particularly criminal law, that we judge people on the circumstances they were in -- that is based upon their knowledge of the facts at the time and the state of society (that is science, the law, public mores etc.) at the time.

Second, another aspect of the case also likely turns on the question of isolating responsibility in a large system. Decisions in a large system are made on the basis of a large number of inputs from a large number of people. The outcome of a decision making process therefore is hard to isolate as being the responsibility of one single person or even a small group of people within an organization. This of course is distinct from deviant actions such as the decision to steal from the company. Here what were attacked were decisions at the core of the operations of the Red Cross -- how to run the blood system. These decisions arise out of input from scientists and staff about the severity of the problem, the range of available solutions, the risks and benefits associated with those solutions, the evolution of the problem and the solutions, the costs of the solutions, the consquences of acting or not acting. The significance of each of these in turn depends upon things that are beyond the control of particular decision makers -- for example the size of the overall budget and the size of the overall blood supply were externally determined.

This runs then to a second bedrock principle of criminal law -- we only hold people criminally responsible for their personal acts, not for the acts of others. The civil law is different in this regard.

Third, there is the practical problem of proof and doubt. In a criminal case a person must only be convicted if proof has been made out against them beyond a reasonable doubt. If the trier of fact (in this case the judge) is left with a reasonable doubt about any component of the crime -- for example that there was the requisite intention to cause harm or to act recklessly -- the accused must be acquitted. This is true even if the trier of fact actually believes the person 'did it' or is even guilty. This standard is set so high because the criminal law is about punishment of individuals for their actions. We have other systems in our society to help the victims that are not so onerous: the civil jusice system which doles out compensation only requires 'proof on a balance of probablities' (that is 50%+1) while medical care system provides treatment without proof of any wrongdoing.

In the end it seems unsatisfying that there is no villian who can be condemned and drawn to prison to the jeers of the innocent victims and an angry public. But personally I think in this case this is the right result -- the tainted blood catastrophe was a public health catastrophe. While it would be a relief to most of us to be able to say 'it was not us,' the reality is that it was a combination of pubklic attitudes, a lack of urgency on the part of the government and the public and a myriad a systemic problems that led to a disasterous outcome and we all have a hand in it (well assuming we were alive at the time). We should be let of the hook by being able to blame things on a cabal of villians working in a boardroom somewhere.

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Tuesday, September 18, 2007

Electoral Reform on Hold?

A few weeks back I commented upon the Electoral Boundaries Commission Report recommending a major revamp of the electoral boundaries in British Columbia to better assure the 'one person one vote' principle and to ensure better representation of the growing urban areas of British Columbia. On September 13, 2007, the Premier's Office announced that it was pre-empting this reform process by introducing new legislation that would protect existing rural ridings. The Premier's press release said:

“Since the commission released its initial report on Aug. 15, 2007, we have heard clearly from British Columbians that reducing rural British Columbians’ representation in government is unacceptable,” said Premier Gordon Campbell. “We are committed to protecting the number of electoral districts in rural British Columbia. At the same time, the commission clearly identified growing regions of the province where more representation is needed. We will set broader guidelines under the Electoral Boundaries Commission Act to give the commission the flexibility necessary to adjust electoral boundaries and ensure fair and equal representation for all regions of the province.”

If truthfull, the new legislation could achieve the goal of actually standing up for democracy and advancing the one person/one vote principle. If new seats are added to the legislature in sufficient numbers and concentrated in the new urban areas of British Columbia, the same effect will be created, albeit at a significantly higher cost (particular with MLA's recent pay raises). I fear though that given the Premier's last bad experience with electoral reform of this nature, and his recognition that the coastal urban areas are not his party's stronghold, we will see something quite different.

My money is on rural seats being protected and the number of seats in the conservative interior growth areas being increased to recognize their population growth and correct politics. This will be a strong affirmation of the principle of one liberal/one vote -- one non-liberal/0.75 votes.

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The Northwest Passage

The Danish National Space Centre confirmed that the Northwest Passage has now opened up and it is now possible to navigate from the Atlantic to the Pacific along the north coast of Canada. Given that the low point of sea ice in the Arctic typicaly occcurs in October, this means that we can look a month or more of navigability this year. If the arctic ice continues to melt at the pace that it has been over the last couple of years (far exceeding the predictions of the even the aggressive global warming models) this will likely mean that the Northwest Passage, after more than a half millenium of fantasy, will become a reality and we should expect to see regular shipping traffic in the near future.

When the Manhattan smashed its way through the Northwest Passage in the 1960's Canada defended its sovereignty in the Arctic by giving it unasked for 'permission' to carry on. Unless the government plans to create the Department of 'I Know You Did Not Ask, But Of Course You May,' we are now going to have to develop a serious position on how what position we are going to take on our sovereignty and, unless we concede the point, figure out how we are seriously going to defend (legally, militarily and practically) that position.

Our opponents in this regard will not be Afghan tribesmen using improvised explosive devices, they will the United States, the EU and the flag of convenience countries like Panama who will be dusting of their claims that the Northwest Passage is international waters open to free navigation by everyone. Moreover, what is at stake in these discussions is not peanuts. The ability to ship from Europe and the eastern seabord to Asia without passing through the increasingly limited Panama Canal is a huge financial prize. For larger vessels (such as supertankers) which would otherwise have to navigate around Cape Horn the stakes are even larger.

Now is the time to start this discussion in a serious way. Personally I believe there are good policy reasons (such as international security and environmental regulation) to assert and maintain the position that the Northwest Passage falls under Canada's sovereign jurisdiction as 'internal waters' however there are alternative positions and the legal nuances are mindnumbing (even for lawyers). Moreover, all of the legal argument in the world will not serve any purpose if Canada is not able to practically enforce its position. Enforcement of Canada's position does not just require military positioning -- no amount of military positioning will work if the United States and the major EU nations are not onside. Canada is going to have to get the powers in Washington and Brussels to engage in this debate and to be able to persuade them. This may require trade-offs in some areas ('yes, we will allow your warships through but not your tankers -- or vice versa'); it may require having a spine in others ('yes, we would love to continue to act as target practice for armed goatherders, but we are re-assigning these troops to picket duties in the Arctic, Denmark ... so we hope you enjoy Kandahar') but it is first and foremost going to involve pulling together a vision and plan for how we are going to look at the Arctic in a warmer time.

This is an issue that streches across party lines. I just hope that the current leadership can see that.

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