Friday, August 31, 2007

The Real End of the Year

I know that January 1 is the official start of the year, but I still have never gotten lost the sense that the year really begins the day after labour day. So to myy mind today -- August 31 -- is the real end of the year. Intuitively every part of me still feels the pattern of the long summer break coming (sometimes thankfully) to an end and everyone being filled with strength and excitement for the new starts that come with September.

Traditionally it was the beginning of the school year that drove that feeling -- I am still young enough that more than half my life was spent working on the schedule of various academic institutions (also an indicator that I spent too much time in school). This of course meant that a number of other critical life events were also tied to that routine. Most of my important moves (St. John's '68 BC '81. Ont '83, Nfld '84, Ont '86, BC '98) for this reason or closely related reasons took place in September. For the same reason it also seems as if I met most of my lifelong friends around September.

It was not just school though. When I first started practicing law in Toronto in the early 1990's the Court's still honoured the ancient tradition of the Long Vacation which marked the pattern of legal life as well. Trial courts did not sit in the summer and even in Weekly Court (Chambers Court in BC) lawyers were excused from wearing their gowns. I still recall the first major injunction I participated in (as an articling student) -- it was a fight between the posties and Canada Post and we acted for a police force caught in the middle -- where the hearing spanned over the Labour Day weekend. For the first few days Justice Montgomery -- a now retired Judge in Ontario who looked like he was meant to be commanding a tank brigade -- had presided in a series of casual summer suits (an essential in the heat of Toronto in a poorly air conditioned court house). On August 31 when he rose to head to the cottage his parting comment after three days of frustrating hearings was 'well, I will see you all back here in your gowns on Tuesday.' There was a strong sense in those words of 'and I look forward to all of you and your clients acting like grown-ups for a change.' The Long Vacation is long abolished now and the summer courts are not to be distinguished from any other court day.

In all this is a sad thing. The summer break -- even when it involved work at the office -- served a psychological purpose the benefits of which were seen in September. Tempers cooled. Positions were re-assessed. Loose ends were dealt with. Hot heads cooled down or moved on to other causes. When the courts resumed in September there was that same sense of starting fresh with nothing but opportunity ahead that made the start of the school year so exciting. All in all, while more work is done and the courts are more efficient now, I am not convinced that justice or the public are better served.

Anyway, here it is -- here's to the real end of the year and to yet more new beginnings.

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Show Some Spine Jim -- Stand Up to the Provinces

The Globe and Mail again reported on Jim Flaherty's support for a single Canadian securities regulator (article reproduced below). This is, as I have said before, an excellent idea for Canadians. It will increase protection for the public (who will be served by an effective, national regulator) and lower costs for businesses coming to Canada (who will only have to deal with one regulator and one set of rules). Taxpayers even win as ten bureaucracies are replaced with one.

But it is not going to happen if Ottawa waits around for the Provinces to voluntarily give up control over their regulatory empires.

Our Constitution gives Ottawa power over interprovincial and international trade, as well as matters of peace, order and good government, and the time has come for Ottawa to use these powers. Ontario -- which deals with the lion's share of the securities industry in Canada anyway -- has said it will be onside. Industry will be onside (except for a few provincial analysts who benefit from contracts from regulators) and the public is not going to rebel against this one. Even the Liberals and the NDP will fall in line -- the only real opponents will be the BQ and PQ.

Time to show some spine Jim and get on it with it. Pity you waited until so far into your minority mandate to do it.

Flaherty beats single-regulator drum

With files from reporter Katherine Harding in Edmonton

August 31, 2007

CALGARY -- Federal Finance Minister Jim Flaherty has again sharply criticized Canada's provincially run system of securities-law enforcement, calling the current structure inadequate and saying that a national regulator is desperately needed to protect investors and improve Canada's reputation abroad.

"We are the only industrialized country without a common securities regulator," he said yesterday in a speech to the Canada West Foundation in Calgary.

"For many, our system is seen as cumbersome, fragmented, slow and repetitive, and lacking the proper tools of enforcement."

Mr. Flaherty has warned several times this year that investors are ill-served by the current patchwork of 13 provincial and territorial agencies charged with enforcing securities law, but all of Canada's provinces and territories - except Ontario - have refused to get behind the minister's drive for a single securities regulator.

Print Edition - Section Front
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Instead, those provinces have moved ahead with their own "passport" system of regulation, where they retain separate securities commissions but recognize approvals granted by other participating jurisdictions.

However, the passport system does "not go far enough or fast enough" and is "simply inadequate for where Canada needs to be," Mr. Flaherty said, noting that Canada still has 13 separate securities regulators and a lack of national co-ordination.

The minister was scathing in his view of how Canada's security regulations are perceived internationally, saying: "Quite frankly, our reputation abroad is not strong - and I'm putting it mildly - with respect to securities enforcement."

While the provinces haven't given the national regulator proposal their blessing, they have said they're not opposed to a new panel that Ottawa is launching to flesh out the idea. Mr. Flaherty said he expects to announce the composition of the expert panel shortly.

Alberta Premier Ed Stelmach told reporters in Edmonton that Mr. Flaherty's latest plea won't do anything to budge his province's hard-and-fast position on the issue.

"I've agreed with other premiers, especially [B.C.] Premier [Gordon] Campbell, that we are committed to the passport system. Our position has not changed," he said.

Bill Rice, chief executive officer of the Alberta Securities Commission, told The Globe and Mail that the passport system does address the "fundamental complaints" of securities regulators, as it "substantively harmonizes laws across the country so participants need deal with only one regulator."

However, he conceded that Ontario's non-participation did pose problems for the passport system.

Wednesday, August 29, 2007

Nuclear Rebirth

The nuclear industry in Canada has been largely moribund for the last twenty years. The biggest news has focused on the re-opening of the Bruce power plants in Ontario and the questions areound whether the Pickering plants will be able to be refurbished or if they will have to be re-built. Now in the last week two major announcements of plans to build new nuclear power plants in Canada. We can also see the industry starting to become a flashpoint for conflict -- and I expect we will see more.

The first announcement comes out of Alberta where a private company proposes to build a reactor in the Peace River district. Part of the mystery of this article is the question of who will use the power given he remote location of the reactor. Indeed in the Globe article the lead suggests a mystery customer:

CALGARY -- An upstart Alberta firm with no experience in nuclear energy has taken its first official step to build the province's first nuclear power plant, saying yesterday that it has the backing of a large but unnamed company working in the province

It does not take a rocket scientist though to figure out the likely consumer -- the Peace River Oil Sands. The Peace River Oil Sands are the next big oil sands development likely to come on line and in addition to the huge amount of water that will be needed to mobilize the underground bitumen, an even larger amount of energy will be needed to heat that water to the boiling point. Indeed an article just the week before (reproduced below) commented on Shell's consideration of nuclear power for a similar project to the west of Fort McMurray. Shell, incidentally, is the first company out of the box to seriously start looking at developing the Peace River area. There is a certain irony in developing a controversial 'clean' power source in order to facilitate the operation of one of the leading 'dirty' power sources.

In Ontario the Ontario Power Generation Corporation unveiled its twenty year plan which, together with conservation and gas fired plants, will likely include the building of at least two new nuclear power plants and the refurbishment and re-opening of several closed ones. The Globe and Mail said:

In its 20-year plan, the OPA said the province will need massive investments in natural gas-fire plants, as well as conservative and renewable power to make up for the loss of coal over the next seven years.

As well, the province's nuclear operators will have to spend at least $26.5-billion to refurbish existing plants and build one or two new units by 2018 in order to maintain nuclear's current share of the electricity supply.

Finally, we see the inevitable happen as a growth of the nuclear industry leads inevitably to the re-examination of uranium mining. An Ontario Court just issued an injunction against a group of aboriginal blockaders who have been blocking the early stages of the development of uranium mine in the Ottawa valley region. I expect this will the first of many such incidents as interest in developing Canada's uranium resources revives and the eyes of government and industry turn to Canada's frontiers.

One thing we should all watch for though is the presure that will come and the subsidies that will be provided to choose Canada's Candu reactor techonology over the more widespread technologies used in the United States and the rest of the world. This Candu technology historically was viewed as superior in a key aspect; namely that it did not require a shut down in order to refuel. However, it is a more complex reactor and the experience at Darlington and Pickering suggests that this advantage may be outweighed by the fact that as it ages increasingly brittle metal piping requires largescale replacement entailing years of shutdowns and billions in rebuilding costs.

Finding the right balance between these concerns will be tricky and will be made even more difficult as the world increasingly faces a labour shortage. In such a world it will be increasingly important to ensure that we are using technology that can easily be supported by the highly mobile, worldwide force of engineers and technicians that will be working in the nuclear industry. To the extent that we use a unique technology we may be putting ourselves at a competitive disadvantage for attracting these workers. Given the Canadian government's propensity for subsidizing the construction of Candu reactors (thus making us all share in the cost), I for one hope there is some real public scrutiny given to how the decision to choose what technology is used is made. I would hate to see us invest billions of dollars in Betamax techonology in a VHS world.

Shell eyes nuclear power for oil sands
New technology that extracts bitumen from limestone demands huge quantities of electricity

May 22, 2007

CALGARY -- Royal Dutch Shell PLC is looking at nuclear power to support its experimental oil sands ambitions, on which it has already placed a bet of more than half a billion dollars.

The company, through a secretive Calgary-based subsidiary called Sure Northern Energy Ltd., is working to unlock an estimated 60 billion barrels of raw bitumen - more than 100 kilometres west of the oil sands epicentre around Fort McMurray in northeastern Alberta.

The prize Royal Dutch is chasing is bitumen trapped in hard-rock limestone, rather than the conventional oil sands around Fort McMurray where bitumen is mixed with dirt and sandstone.

The Anglo-Dutch energy giant is the likeliest customer for a nuclear power plant proposed by Energy Alberta Corp., a private company working with Atomic Energy of Canada Ltd.Unlocking the multibillion-barrel bonanza encased in limestone requires an astounding amount of electricity.

The resource has been known for decades but efforts to recover it have failed.

Royal Dutch is working on electric heaters below ground to loosen up the gooey bitumen to draw it to the surface through wells.

The firm is trying to commercialize what it calls a "novel thermal recovery process" invented by Shell's technology arm.

Last year, Royal Dutch, through Sure Northern, paid the Alberta government $571-million to acquire exploration rights west of Fort McMurray - by far the biggest outlay to stake a claim in the oil sands.

Husky Energy Inc., which has publicly expressed an interest in harnessing nuclear power, is the other major player in the area, and has said it wants to partner with Royal Dutch, which is leading the new technology.

Energy Alberta, backed by oil patch veteran Hank Swartout, has a deal with government-controlled AECL to develop a nuclear reactor for the oil sands.

Technology to recover bitumen from limestone is "moving very rapidly," Mr. Swartout said.

"As it goes forward, the demand for electricity, without going any further, will be hugely increased," said Mr. Swartout, who is retiring from his post as chairman of Precision Drilling Trust, a firm he founded two decades ago.

Royal Dutch's Sure Northern unit didn't return several calls seeking comment. It is the only company actively working on bitumen in limestone. Other firms in the conventional oil sands, such as Total SA of France, have expressed interest in nuclear power.

One unnamed company is looking to take 70 per cent of the output from Energy Alberta's proposed $6.2-billion twin nuclear reactor that would start producing 2,200 megawatts in 2016. The reactor design exists only on a drawing board and the amount of power is equal to about a fifth of Alberta's electricity supply.

For comparison, Suncor Energy Inc., the second-largest oil sands producer, uses roughly 400 megawatts of electricity at its operations.

Neither Mr. Swartout nor his partner Wayne Henuset, president of Energy Alberta, would comment directly about a possible connection with Royal Dutch. "I'm not going to say anything officially," Mr. Swartout said. "Officially, we're not chatting with anybody other than there's a huge amount of interest that we facilitate this and obviously I don't spend my money foolishly."

Energy Alberta plans to submit a preliminary application to the Canadian Nuclear Safety Commission by mid-June to start the regulatory process. It is looking at building its facility in either of the small towns of Whitecourt or Peace River in northwestern Alberta.

Industry players have wondered about those locations, given their distance from Fort McMurray, but both sites are relatively close to Royal Dutch's limestone ambitions.

Last week, Energy Alberta held a public meeting on the proposed plant in Whitecourt, drawing about 300 people, with less than five dissenters among the crowd, according to Mr. Henuset. A nuclear reactor promises construction jobs for about 2,000 people with as many as 1,000 permanent, high-tech jobs.

There has been some opposition in Alberta - a citizens group called Cause is opposed - but the provincial government has shown increasing interest and the federal Conservative government is supportive. Energy Alberta, at its Whitecourt meeting, had several speakers, including Patrick Moore, who was anti-nuclear as part of Greenpeace in the 1970s but has become a nuclear advocate.

A potential competitor for Energy Alberta/AECL is Areva SA, the state-owned French nuclear power company.

Armand Laferrère is president of Areva's Canadian arm, which is looking to sell its technology in Ontario and Alberta, and he has had top-level meetings in Alberta. "We haven't made announcements to huge drumbeats for projects that don't have a customer ... but Areva is definitely interested in presenting its solution," Mr. Laferrère said.

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Tuesday, August 28, 2007

Stephen Truscott -- An Innocent Man

A five judge panel of the Ontario Court of Appeal set aside the ancient conviction of Stephen Truscott today and entered an acquittal. This should (unless the Crown is misguided enough to appeal) bring an end to one of the longest lasting legal dramas in Canada's legal history. It also demonstrates the now obvious wisdom of the Diefenbaker government's decision not to hang Mr. Truscott (then a 15 year boy).

While I will comment on this decision later in greater detail I do want to take the Globe on a comment that it made in today's paper (August 28, 2007), namely that the Court of Appeal would not declare Mr. Truscott 'innocent'. The fact of the matter is that Mr. Truscott needs no court to declare him innocent. Our Charter of Rights and Freedoms provides that every person charged with a crime as the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." Mr. Truscott is now an innocent man -- our Charter says so and no-one has the right to say otherwise.

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Sunday, August 26, 2007

Lawyer Life Lessons #2 -- Find a Mentor

If you ever get to hear Justice Ian Binnie speak about being a lawyer or about advocacy you can be assured that at some point early in the speech he will speak about Bert McKinnon (that's McKinnon ACJO to the rest of us). Binnie articled with McKinnon and spent the formative years of his practice working underneath a man who was one of the greater advocates of his day. What you have no doubt about in hearing Binnie speak is that McKinnon was his mentor and that without his guidance Justice Binnie's career would have taken a very different shape than it did (not necessarily a worse shape -- but a different one).

Not every lawyer will have a mentor or a mentoring relationship as strong as the one that existed between Bert McKinnon and Ian Binnie. That situation takes a particular combination of talents and personality -- particularly on the part of the mentor -- that is hard to find on a routine basis. Nevertheless, a key aspect of survival in the legal world is finding a mentor.

First let me say that a mentor is not a protector. There are many students and junior associates, particularly in the larger firms, that make the mistake of thinking that because they have a favoured relationship with a more senior partner that they are therefore protected from the pitfalls of not being hired back ro not making partner. This is a drastic misread of the way law firms and the law business works. The relationship that exists between partners is one that even the greatest of warm feelings by a single partner, or even group of partners, is not enough to overcome the opposition of other partners -- unless that opposition is lukewarm. The reality is that most senior partners if faced with serious headwind about a favoured student or associate will shrug their shoulders and think that what is happening is regretful but not do much more. They are going to save their ammunition for allocations.

A mentor is in fact a teacher. There is a great deal about any law firm and the world of law generally that is opaque until it is explained by someone who is in the know. That in the know can be about very pragmatic matters (for example, in the early '90's in Toronto knowing which judges to call M'Lord) or quite idiosyncratic (which partners have long standing grudges that go back decades). More often than not though at the beginning the teaching is 'word to the wise' teaching about firm culture, about comportment and about one's own evolving circumstances. As you progress further the teaching becomes more substantive about law, skills and techniques.

For the most part you will not have a single mentor. When articling some of the best mentors are the associates a few years ahead who still remember what articling life is really like and can give some useful guidance about how to survive the seemingly arbitrary world of articling. Having survived that process it is then that you will generally find yourself engaging with the more senior people and them engaging with you.

In my case I still clearly see Ron Slaght taking the time to show me what a mess I had made of the first statement of claim I had drafted and then explaining to me how to properly draft a claim -- know the law but tell a story. There is not a single pleading that I sit down to write where I do not think of Ron's advice. What I also appreciate more now is that likely it would have been easier, cheaper and less troublesome for him to have said thank you for the work and then redone the claim himself. It was the taking the time to explain what was done wrong and then how to better approach it that made him a mentor rather than just a senior partner. It was not long after that that Ron headed out to set up Lenczner Slaght and so no lasting close relationship ever had a chance to develop there, but the willingness to take the time to teach is the key character in identifying a good mentor.

There is no recipe for finding a mentor but a great deal of it involves being open. There are a few things to remember. One is that mentoring is not always (in fact rarely is) about someone patting you on the head and praising your cleverness. Another is that the people with the greatest skills and experience are not always the people running the firm (often it would be a waste of their talent to be doing so). A final thing to remember is that many of the most skillful lawyers are in the ranks of the younger partners and these are the lawyers who will potentially be seeing the most of you. The QC's in their sixties will be in your life for five to ten years and there will be many ranks of lawyers between you and them. The lawyers in their late thirties and early forties will be the ones who may be with you for the next thirty years -- they may see more of you then their spouses. In many ways it is them that have the greatest interest in seeing you become good (if nor no other reason than it will keep the number of claims against the firm down). Do not have preconceived ideas of who your mentor will be -- you never know where your Bert McKinnon will come from.

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My New Career -- Catastrophe Management

Before going to law school I studied mathematics and since law school have often wondered if there was some interesting way of combining the two. An interesting article in the New York Times today about the concept of catastrophe bonds has given me a glimmer of hope that that there might be such a career out there.

Catastrophe bonds are new type financial instrument that has been developed to help the insurance industry deal with the fact that there are now a whole range of rare, hard to predict events which will not destroy the world but will destroy the insurance industry. Hurricaine Andrew and Hurricaine Katrina are foretastes of these types of disaster -- disasters where the isurance claims run to the tens or hundreds of billions of dollars. This reflects a combination of human doings. While there may be arguments about the extent to which global warming has contributed to this, one need only walk around the water's edge in Victoria to see the real problem.

A stroll along Beach Drive in Victoria up to King George Terrace and down to Fairfield will show you one $1.5 to 5 million dollar house after another. One tsumani -- even a little one -- and in the first three blocks of Victoria likely over $100,000,000 of real estate disappears. A good solid tsunami and probably $500,000,000 dispapears before we even start adding in business losses and the claims associated with loss of life. This is in Victoria, a true economic backwater.

The Times article identifies four major types of disasters which could under the right circumstances wipe out the insurance industry as presently structured: the California earthquake, the Flordia Hurricaine, the Tokyo earthquake and the European winter strorm. In response to this risk a new type of financial instrument had to be developed to allow insurance companies to tap into the larger capital markets of the stock market and what was invented was essentially an all or nothing bet of a couple of billion dollars. On one side of the bet are insurance companies who borrow large amounts of money from the market in the form of catastrophe bonds and pay bonus interest for the honour of doing so. On the otherside are lenders, usually led by fund managers who spend a great deal of time thinking about the proper odds of the break the industry disaster. If the disaster strikes -- say the next Katrina hits Miami and washes all that prime real estate into the ocean and rebuilds the Everglades -- the insurance company wins the bet and keeps all the money it borrowed (keeps it until it pays the claims, anyway). If the disaster does not strike then the lenders get their money back and keep all that juicy interest.

The interesting career here is being guy (or woman and it seems the first person to really think about this seriously was a woman)who figures out which disasters are the right bets and at what price. What is interesting about this is that it is not the usual insurance actuarial exercise -- look at 10,000,000 car accidents over twenty years and pick out the patterns -- but instead is a reasoning exercise. It requires looking at patterns of human settlement, legal regimes, economics and science to figure out how rare events will play out. This exercise has interesting mathematical aspects but is not just mathematics: it requires thinking about how people have behaved and will behave the future.

Sadly, it also involves thinking a bit about silly government policies. You know the ones -- allowing places like Richmond and Delta to have been built below sea level on an unstable, shifting delta for example.

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Friday, August 24, 2007

Room Service

There is truth to the fact that business travel (of which I do a fair bit) is not actually all that much fun. The chances for real fun are limited and since trips often come up quickly -- and your friends in those places have lives (and schedules) of their own -- there is actually rarely an opportunity to do that much more than work. Indeed, since clients are generally paying for me to take these trips, they should be happy to hear that in fact most of time is devoted to doing what they need done.

That being said, there is a certain joy to occasionally taking advantage of room service.

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Optimism and Thinking Ahead on the Rock (and in British Columbia)

The recent announcement of the Hebron deal in Newfoundland made me think of a few things.

First, it is a good day for Newfoundland despite all the shenanigans that preceded the deal. Indeed, the fact that there has been an agreement reached to have a gravity based rig built in Newfoundland makes it particularly noteworthy given the more recent trend to use rigs built elsewhere. This means that for at least the period of construction, rural Newfoundland will see more immediate benefits flowing from the offshore than has been the case since the development of Hibernia. It also means that Alberta's already acute labour shortage will be accentuated as the easy supply of labour from rural Newfoundland is diverted to Bull Arm.

Second, it made me sharply aware of how quickly time passes. When I was a teenager oil had just been discovered off the coast of Newfoundland and its prospects of development seemed fantastical given the technical challenges of developing these fields in the iceberg ridden waters of the Grand Banks. The sinking of the Ocean Ranger in 1982 only reinforced that view that this oil was unlikely ever to be developed. Nevertheless, developed it has been and at a time that could not be better for Newfoundland. The collapse of the cod stocks has been in a very large way mitigated by the development of the offshore.

The third thing that flows from this though is a thought about the future. The Globe report indicates that the Hebron deal will extend the life of the offshore by about twenty five years. This seems like a long time but in fact -- and this is the thing that I am becoming ever more acutely aware of -- it is not. It is about the same length of time that it took to develop offshore oil form its first real discoveries. So what happens then? The time is now for Newfoundland to start developing a vision for the post-offshore future. Newfoundland has been given a reprieve by the offshore and a chance to transform its economy but it will take some real imagination to do it in a way that will keep people there once the easy money of the oil fields ends -- and end it will.

While this last comment is true for Newfoundland it is also true for the other big oil and gas producers in Canada. British Columbia's northeast is facing the exhaustion of the Western Sedimentary Basin as is northern Alberta. Alberta has the Oil Sands to fall back upon but these represent a very different type of development than traditional oil and gas and the economics are more challenging. Furthermore the limiting factor there is increasingly not the oil supply but the limitations on available water needed to mobilize and process the bitumen into crude oil.

Calagary has diversified its economic base in a way that suggests it will likely survive and thrive in the next downcycle of the oil industry in the west (and its eventual demise). St. John's and Vancouver now have to figure out their way.
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Wednesday, August 22, 2007

Grown-up Berries From Newfoundland

There was a nice article on bakeapples in today's Globe and Mail. No, not those pastry covered baked apples, I mean the orange-red berries over there that look like raspberries.

I will confess that as a child -- yes even as a younger man -- I was not particularly fond of bakeapples. Their taste is not the sweet, fresh taste usually associated by children with berries but is instead a unique, almost indescribable taste -- sweet but tinged with a smoky, sour flavour that goes down best on an older palate that is past the youthful craving for pure sweetness.

While even now I have usually had bakeapples on desserts, I think some of its best moments could come in sauces, chutneys or other flavourings for meats. Chefs ... gets those ideas flowing.

By the way, despite the suggestion at the end of the article, skip the bog and go straight to Bidgoods or the side of the road purveyor who has already put up with the marsh and the flies.

Cherished berries from the Rock

From Wednesday's Globe and Mail

August 22, 2007 at 9:23 AM EDT

ST. JOHN'S — You see them in the height of summer: berry pickers, stooped in boggy areas along the roadways, plucking fruit from the low-lying plants dotting the windswept fen.

Like hunting, fishing and general subsistence gathering, heading off to the "berry ground" is an annual tradition in Newfoundland. The rare bakeapple, or cloudberry, is the prize - the most cherished among the province's wild berry bounty.

For those who don't want to break their backs in mosquito-infested marshes, there are always roadside vendors.

We spied our first jars of berries - they're typically sold by pickers in quart sealers, bobbing in cold water - displayed on the hood of an aging half-ton truck near Bay Roberts, west of St. John's.

It's hard to say what the hard little electric-orange berries have to do with clouds - perhaps it's the multisectioned, scalloped shape. As for their other name, according to a 1958 cookbook, The Treasury of Newfoundland Dishes, one early French explorer asked "what is this berry called?" - "baie qu'appelle?" - and the name, phonetically rendered, stuck.

Another early reference describes them as "bake apples - baygapple - warted red berries ripening late in the summer on low-growing plants."

What's clear is that these berries are dear - $10 for the few cups suspended in jars for sale by the road. But considering each of the small plants only produces a single golden fruit, it's a bargain.

Like wild partridgeberries (or lingonberries), bakeapples only grow in northern, subarctic climates, preferring moist tundra and peat bogs - you may find them in a fresh market in Norway or Sweden. In Canada, they're found mainly in pockets of Newfoundland and Labrador.

The wild fruit have an exotic sweet and tart flavour, reminiscent of apricots and honey. In Newfoundland, you'll find them baked into tarts, in sauces spooned over cheesecake, and smeared as jam.

At trendy restaurants such as Bianca's or Restaurant 21 in St. John's, they may appear in a compound butter with the bread basket, or in a creative chutney for pan-roasted cod.

The Dark Tickle Company bottles bakeapple dessert sauces and bakeapple-infused maple syrup, and even makes bakeapple tea and chocolates that are sold throughout the province and online. At Rodrigues Winery near St. John's, Hilary Rodrigues turns cloudberries into wine.

Some cook bakeapples with sugar and dump the seedy sauce over ice cream or desserts, like the creamy cheesecake served at O'Brien's in Bay Bulls. Oddly, they never seem to be baked with actual apples.

At Bidgood's supermarket in St. John's, frozen berries can be found next to frozen cod tongues and bottled moose nose.

Or just do as they do in Newfoundland: Pack a mug-up of bread and tea, and spend a day in the bogs and barrens.

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Hebron Deal in Newfoundland

With the announcement of the Hebron deal in St. John's today the only question that remains to be answered is whether or not Danny Williams will win every seat in the Newfoundland legislature in the fast approaching election.

With the kind of electoral lead that Danny has established over his rivals going into the election, one can only hope that he will now see that he can safely resist the temptation to make bad pre-election announcements (like creating new universities).

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Gordon Gibson Pines for the Good Old Days

Gordon Gibson has written yet another of his screeds in the Globe and Mail advocating assimilation (integration) as the solution for the social troubles of Indians. In doing so he suggests that this is someway a novel idea that has yet to be tried.

Stepping back and actually looking at it, it is a bit tricky trying to actually determine what Mr. Gibson is recommending unless it is the wholesale abolition of the special legal standing of aboriginal people. The reality is that there are no legal or policy impediments to integration for any aboriginal person who is so inclined. Every aboriginal person has the rights that the non-aboriginal people have: the right to vote, the right to own property, the right to move or leave the country, the right to access the nation’s health care system and education system. What distinguishes aboriginal people is that they have additional rights such as their constitutional rights and their statutory rights in relation to the reserves under the Indian Act.

It seems that what Mr. Gibson is really advocating is the wholesale abolition of these rights and privileges as well as the special protections afforded to aboriginal people so that they disappear as a distinct social problem. This would entail the abolition or breaking up of the reserves, the disbanding of the band councils, the repeal of the Indian Act, the extinguishment of aboriginal and treaty rights and finally the repeal of s. 35 of the Constitution Act, 1982 and s. 91(24) of the Constitution Act, 1867. This would no doubt result in immediate assimilation from a public policy perspective as then there would no longer be a category of persons defined as ‘Indians’ and their poverty and desperation would merely be absorbed into the great mass of the rural and urban poor. The colour of desperation would remain the same but at least the label would disappear.

What is pathetic about Mr. Gibson’s analysis is that it is so ignorant of real history. The policy of integration (also known as assimilation or enfranchisement) is that it has been the cornerstone of Canadian aboriginal policy since the 1750’s. Colonial officials were faced with an inconvenient truth of their own: there were a lot of Indians in this supposedly empty colony and they had the ability to make everyone’s life sticky. Colonial officials being more pragmatic men than Mr. Gibson knew that they could not merely wish the Indians away (“presto, you’re white”) and so they devised a series of policies which recognized the ‘facts on the ground’ (namely that the Indians were on the land and apparently had rights) while establishing conditions that created incentives to either assimilate or disappear. These incentives included limiting practical land rights to reserves, limiting the right to vote (unless enfranchised), denying the right to own property (unless enfranchised) and denying educational choice (unless enfranchised). As the aboriginal threat became lesser the assimilative pressure was increased by attacking cultural institutions such as the potlatch and language through the Criminal Code and the residential school system.

What is obvious though is that it did not work. For some reason, aboriginal people declined to give up their homes, move away from their families and abandon their culture. They refused to integrate even under substantial pressure from the government. In his article Mr. Gibson suggests that the choice for us as a society is between promoting personal choice as oppposed to promoting collective choice. This is in fact nonsense, under our existing system we have allowed both with personal choice taking primacy. The real choice we have as a society is whether or not be are going to force aboriginal people to choose between maintaining their identity, culture and rights and therefore being condemned to poverty or assimilating into the mainstream in the hope of economic progress. The Indian industry that Mr. Gibson so despises promotes the idea that perhaps we should try to find a way to let the aboriginal people maintain their existence and have a decent life (oh yes, and have some real freedom to make personal choices).

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Tuesday, August 21, 2007

Failure of Leadership at the Department of Fisheries and Oceans

Anyone who was of the age of reason in Newfoundland in the 1980's can remember the collapse of the cod stocks. The significance of this collpase cannot be underestimated. In my office I have a framed copy of Newfoundland's 'Last Day Cover'issued on March 31, 1949 to mark Newfoundland's last day as a separate political entity. On this cover is a stamp showing a load of huge cod being dumped into the hold of a ship. Cod was the defining currency of Newfoundland and gave it a reason for being. Yet overnight the fishery of several hundred years duration was brought to an end and, despite the hopes of those who see every splash in the bay as a sign of the return of the good old days, there is no real sign of the fishery returning as anything other than a distant echo of what it was.

As I have said before, living here in British Columbia now, I cannot help but get the sick feeling that we are watching the same thing happening out here on the west coast with a number of our fisheries, but particularly with respect to the salmon fisheries. Every year the returns are more uncertain. Every year there are particular runs that don't behave as they should, coming either later or earlier. Every year there are collapses in associated fish species, such as the eulachon, that are chalked up as incidental. But nevertheless nothing seems to be getting better and all the signs suggest trouble.

Over at the Department of Fisheries and Oceans though there is no sign that anything is different. Instead everything is being managed as a part of the usual drill. Managers call meetings and make decisions about fisheries on particular days as particular data comes in, essentially moving the deck chairs around so that the complaints are not too loud today. There is no-one stepping up to lead and bring forward imaginative solutions that might galvanize action on the part of all sectors of the fisheries in British Columbia or in the larger populace. The Minister is in Ottawa (or perhaps down in Newfoundland) and the job of communicating what ever the policy du jour may be is left to one faceless RDG or ADM or whatever may be on the scene.

The reality is that we need some political leadership. There needs to be a leader who can speak to all segments of the fishery and lay out an imaginative vision that gives some hope for the health of the fishery in the Province. The fishery has many segments and interest groups with wildly disparate interests -- some of whom have constitutional rights and some of whom have tremendous economic or political power. None of these groups are impressed by the bureaucratic structure at DFO and, moreover, none of them are hearing anything come from DFO that suggests that there is any reason to change their general course.

The latest version of this fiasco can be seen with respect to the management of the sockeye closures. The collapse of the sockeye is a disaster and a dark omen for the future. It may be a passing, freakish event but not too many people really have much hope that this is the case. Despite the unique and catastrophic nature of this event DFO approached the matter of managing the closures on the fishery on the lower Fraser as if it was a routine matter. Depsite knowing that this is one of the most explosive regions in the Province and that the issues around the priority between the aboriginal fishery and the recreational fishery is incendiary, DFO announced an immediate closure of the aboriginal fishery but a delayed closure of the recreational fishery. The justification was centred on communications issues (in an age of internet, radio, television and e-mail) but this rings hollow and is unconvincing. The inevitable clash came as grounded aboriginal fishermen looked out at recreational fishers fishing and decided to head out in their boats.

In the end it could have been avoided -- in fact many recreational fishers stayed home. An aggressive effort to get notices out to marinas, launching sites and guides on the Fraser could likely have shut down the recreational fishery at the same time as the aboriginal fishery. Even if this failed in particulars this would have given aboriginal leaders the footing they needed in the face of angry communities to keep most if not all of the aboriginal boats on shore.

We are going to have to discuss radical solutions to the problems of the fisheries in the next few years. We will have to discuss ideas such as closing the commerical fishery altogether or stopping the growth of fish farms. DFO is going to have to find ways to effectively reach out to aboriginal communities to make them real partners in managing the fisheries (and not just being messengers for DFO). The economic value of the sports fishery as opposed to the commercial fishery is going to have to be carefully evaluated. The role of habitat protection in this mix is going to have to be weighed -- even if it means considering letting parts of Chilliwack flood from time to time rather than destroying fish habitat by dredging.

These debates are only going to meaningful with genuine political engagement at the ministerial and/or prime ministerial level. Sadly there is no sign of this happening. Perhaps the answer may be that we need to recognize that the concerns of the Atlantic are very different than the concerns of the Pacific and we need a Pacific Minster of Fisheries. It will also mean that Fisheries is going to have to change in profile as being a political backwater -- or graveyard -- and instead be seen as a challenging portfolio in a new era of environmental awareness.

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Monday, August 20, 2007

White Collar Crime and the Federal Government

Canada has a ludicrous system of securities regulation. We regulate an industry that works twenty four hours a day, in every province , across international boundaries and largely in cyberspace as if it were still an industry largely characterized by gentlemen traders striking deals at clubs in downtown Toronto. We have a multitude of provincial regulators -- and no national regulator -- who have no jurisidiction beyond their boundaries and no national vision of what is happening or what needs to be done. Everyone knows it is ridiculous but because it is inconceivable in this day or age for any politician to say that the Federal government should assume jurisdiction in a an economic subject matter no-one bites the bullet and proposes the only sensible solution to this mess -- the time has come for a national securities law and a national securities regulator backed up by the national police force and national prosecutors.

If that day should come we will be spared the embarrasment of watching a group of Canadian fraudsters (Conrad Black) be tried in the United States for frauds perpetrated as much in Canada as in the United States.

Stpehen Sibold, a former chair of the Alberta Securities Commission gropes toward the right answer in a column today in the Globe and Mail (reproduced below)that suggests that the time has come to criminalize securities fraud in Canada and to deal with it through the Criminal Code rather than through provincial securities regulations. This would have the effect of giving the Federal government the power to create the crimes. Unfortunately, due to the divided nature of our criminal law system, this would leave the provinces in charge of investigating and prosecuting the law breakers -- a job which they have demonstrated themselves manifestly incapable of doing effectively. Furthermore, to be entirely effective, it is hard to see how the criminalization of some of the more sophisticated types of securities misdeeds (insider trading, false statements in a prospectus, tipping) could be effectively criminalized without being closely coordinated with securities regulation.

What would be better for everyone would be for the Federal government to announce that given the nature of the modern securities industry it was taking over the regulation of it under the power to regulate interprovincial trade and commerce as well as international trade and commerce. A national securities regulator would be established and job offers would be made to each of the current provincial chairs and a selection of senior prosecution and investingation staff. This body would be backed up by the RCMP as well as a crack team of Federal criminal prosecutors (such as those who handle major drug charges).

A bold step like this is really a no lose proposition for a conservative government: it would reduce senseless multi-jurisdictional costs for most companies; protect small investors and pension funds more effectively from fraud; and would scotch the sense that Stephen Harper has never seen a federal power he likes (does anyone remember the Alberta firewall?). Furthermore, by poaching the senior provincial staff, Ottawa would be protecting the provinces from severance pay obligations and also would bring together a group of dedicated and intelligent public servants who have shown a serious dedication to doing what they can given the limited tools their provincial masters have and can give them. Finally, even though the provinces will squawk it will actually be hard for any of them to make a coherent or interesting argument in favour of a system that only helps white collar fraudsters.

Want U.S.-style regulation?

Stephen Sibold is a lawyer with Bennett Jones LLP in Calgary, currently studying at the University of California, Berkeley as a 2007-2008 Canada-U.S. Fulbright Scholar. He is a former chair of the Alberta Securities Commission and former chair of the Canadian Securities Administrators.

August 20, 2007 at 6:20 AM EDT

If we wish to "get tough" with criminal misconduct in Canada's capital markets, governments need to begin treating this conduct as a matter of criminal law rather than securities regulatory law.

The recent convictions in the Hollinger case in the United States have, predictably, fuelled debate in Canada as to whether similar cases would have been pursued here - let alone concluded - with the same vigour. Critics frequently cite the absence of a single national securities regulator as the root cause of the perception that Canada does not have as strong - or fearsome - a commitment to enforcing securities laws as does the United States.

While the attention of commentators has been focused primarily on the enforcement record of securities regulators, I believe that the more fundamental issue to address is how Canada deals with serious "white-collar" or commercial crime in its capital markets as a matter of criminal law.

First, we need to understand the fundamental differences between regulatory law and criminal law. Unlike the Criminal Code, the provincial securities acts are regulatory in nature and not penal. The focus of regulatory law is the protection of societal interests, not punishment of an individual's moral faults. As the Supreme Court has stated: "While criminal offences are usually designed to condemn and punish past inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care."

Securities regulators typically deal with "capital market" offences such as insider trading, misrepresentations in public documents and illegal trading in securities. Their usual sanctions involve fines or orders restricting future activity, such as cease-trade orders or orders prohibiting an individual from serving as a director or officer.

It is important to appreciate that all of the recent high-profile corporate scandals in the United States - Enron, WorldCom, Tyco and Adelphia, to name a few - have involved prosecutions of criminal law, not enforcement of securities legislation. The accused in those cases were charged by prosecutors under criminal laws and convicted of criminal offences, fraud being common to all.

Second, we need to understand some critical differences between the treatment of white-collar crime under the respective criminal justice systems in the United States and Canada. Unlike Canada, strict sentencing guidelines exist in the U.S. for federal offences. For example, Bernard Ebbers of WorldCom fame could have been sentenced to 30 years imprisonment under U.S. federal sentencing guidelines (rather than the 25 years that he received).

While U.S. state judges have more latitude in sentencing, the state judge in Tyco sent a strong message by his sentencing of Dennis Kozlowski to 81/3 to 25 years imprisonment. In Canada, no such sentencing guidelines exist and there is little precedent for lengthy prison sentences for individuals convicted of commercial fraud.

Indeed, last year, a Quebec judge sentenced Chuck Guité to 3½years in prison for his conviction on five counts of fraud. The United States - at both the federal and state levels - takes a much tougher approach than Canada to white-collar crime.

So, what must be done in Canada if we wish to "get tough" with criminal misconduct in our capital markets? We must first acknowledge that serious white-collar crime is properly the purview of the criminal justice system and not the securities regulators. The federal and provincial governments then need to make enforcement of white-collar crime a higher priority and allocate appropriate resources to it. For example, police forces, prosecutors and judges need specialized training. White-collar crime, such as corporate fraud, typically spawns complex, time-consuming and document-intensive cases. Unfortunately, most prosecutors and judges (especially at the Provincial Court level) have had little opportunity to acquire experience with such kinds of cases. Police forces and Crown prosecutors need to allocate the resources to pursue commercial crime with the same effort as violent crime. Parliament needs to adopt stricter sentencing guidelines so that judges can treat commercial crime with the same degree of seriousness as violent crime.

The appropriate response to criminal misconduct in Canada's capital markets is for the federal and provincial governments to treat it as a criminal rather than a regulatory problem and assign to it the high priority and necessary resources which it requires.

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Sunday, August 19, 2007

Trial Balloon on the High Seas

The United States' historical position on the exent of the high seas has created a dilemma for itself in its war on terror and increasingly greater emphasis on security over all other values. Former US Ambassador to Canada Paul Cellucci has floated a trial balloon which suggests that parties within the United States admininstration may be seriously debating backing off one of that country's long held international legal positions which placed the Northwest Passage outside of Canada in international waters.

In the pre-9/11 days the United States' principal interest was to ensure that was as much in the way of high seas as possible and as little territorial waters as could be managed. This served the United States' interests in two ways: first by allowing for freer navigation of commercial vessels and second by allowing maximum mobility for its naval fleets. This was critically important in certain areas in the South Pacific and possibly the Indian Ocean where there are many important channels which potentially lie within the territorial waters of nations such as Indonesia.

Today though there is a new imperative, namely the control of territory and the maintenance of security, even if it carries with it a significant economic cost. The United States' successive decisions around border control, be it the control of traffic across the Canada-US border or the limiting of foreign students, indicate that economic interests are increasingly being required to give way to security imperatives. The traditional US position on the high seas conflicts with these modern concerns as the high seas (particularly given the US refusal to sign the Convention on the Law of the Seas) are effectively a law free zone when it comes to policing. The right of free transit for America equally means the right of free transit for boats flying the flag of Panama, Greece or Pakistan -- even if owned and operated by a suspected terrorist group. Thus from a security perspective the United States would like to see more territorial seas controlled by friendly nations such as Canada, Indonesia (sort of) or the Phillippines.

This comes home for Canada in Northwest Passage. Canada has always claimed the Northwest Passage as territorial waters based on the "Archipelago Principle", that is, Canada's territory should not be defined by lines drawn around each arctic island but instead by a single line drawn around the whole arctic archipelago. The United States has historically preferred the island by island approach which then leaves most of the Northwest Passage in international waters -- and free for US ships. Paul Cellucci's trial balloon suggests that there are people within the US administration who are thinking that it may be better if the Northwest Passage and other 'international' waterways were in the territorial control of nations who can then take repsonsibility for policing and controlling events in those waterways.

This may be a happy development for Stephen Harper (and for Canada really) as Mr. Harper embarks on his Arctic Sovereignty Campaign 2007-2017. In the past this would have brought him into conflict with an implacable enemy in Washington. Today if Paul Cellucci's thoughts carry today he may be able to pull of a major international law triumph which would do much to reinforce Canada's sovereignty in the north.

To see the core American position it is neatly summarized in an internal United States memorandum written at about the time of the Manhattan incident, where a US tanker indicated its intention to pass through the Northwest Passage. This memorandum has been released into the public domain. It is a nice piece of history about how Canada and the United States have been at odds on this issue for decades.

The text of the article is reproduced here:

Cellucci: Canada should control Northwest Passage
19/08/2007 2:19:41 PM


The former U.S. ambassador to Canada says that before leaving his position in 2005, he told his officials in the State Department that Washington should re-examine its territorial claims to the main Arctic waterway.

Paul Cellucci appears on CTV's Question Period.

Canada claims the Northwest Passage, but the United States says the waters are international.

Paul Cellucci, in an interview with CTV's Question Period, said he raised the issue with the State Department and mentioned it to his successor in Ottawa, current ambassador David Wilkins.

"I think in the age of terror, it's in our security interest for the Northwest Passage to be part of Canada," Cellucci told co-host Jane Taber.

"That would enable the Canadian Navy to intercept vessels in the Northwest Passage, and make sure they're not trying to bring weapons of mass destruction into North America."

Cellucci's comments come after Prime Minister Stephen Harper's recent trip to the North, where he made a number of announcements aimed at strengthening Canada's territorial claims in the Arctic.

And it also comes a day before Harper and U.S. President George W. Bush are due to meet in Montebello, Que., for a security-related summit.

"It's in our interest to work together on security," Cellucci said. "My hope is that the United States will take a second look at our longstanding position, because I think it's in our security interests that this be considered a part of Canada."

"If the global warming continues, this will get a lot more attention," he added.

Last week in Resolute, Harper announced the 4,100-strong Canadian Rangers force will get a boost of 900 more members, and a deep-water military port will be constructed in Nanisivik.

Harper's trip came after a recent Russian submarine expedition that planted a Russian flag on the seabed at the North Pole.

Denmark is also mapping the Arctic ridge as the polar race heats up, trying to prove the 2,000-kilometre underwater mountain range is attached to the Danish territory of Greenland.

Canada, the United States, Russia and Norway have competing claims in the Arctic region, where a recent U.S. study suggests as much 25 per cent of the world's undiscovered oil and gas could be hidden.

The race for sovereignty has heated up partly because global warming is shrinking the polar ice, which could someday open up resource development and new shipping lanes.

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Thursday, August 16, 2007

Richard Bradshaw Takes The Final Bow

Canada lost one of its most inspirational arts administrators and visionaries today with the sudden and unexpected death of Richard Bradshaw, the leader of the Canadian Opera Company.

Toronto in the 1980's was drifting in terms of its physical development. Rather than being viewed as a part of building a stronger city, investment in much needed arts infrastructure was pitted against investmest in much needed social infrastructure. This culminated in the cancellation of the proposed ballet-opera house at the corner of Bay and Gerard. As a final slap a condominium development was eventually built at the site -- Opera Place.

Richard Bradshaw did not give up. He persisted in advocating for the development of a new opera house and in doing so made the case for the development of Toronto's civic arts infrastructure generally. The rebuilding of the National Ballet School, the Royal Ontario Museum and the AGO all owe a debt to Bradshaw for creating a vision of a city with room for places of beauty. In doing so, I believe, he also has strengthened the feeling that Toronto is a city to be proud of and to fight for -- something that will help ensure that the investment in social infrasctruture that needs to continue will be made.

Bradshaw's dream of a new opera house was realized this year with the opening of the Four Seasons Opera House. I, like many other people, thought that he would have many years to enjoy his achievement. Now all we can do is thank him and be gratefull that he had a chance to see it to its completion.

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Electoral Fairness in the West -- At Last

The British Columbia Electoral Boundaries Commission delivered its report to the legislature yesterday recommending a major redistribution of electoral seats from rural to urban areas. This is a long overdue process which will do much to enhance democracy in the British Columbia and help the government of British Columbia implement policies that reflect a 21rst century province rather than a 19th century province.

There is a great myth of Canada as a rural or northern nation. In fact, for the most part Canada is an urban nation and its modern face is largely to be found in the cities. While our economy is still highly dependent upon resource extraction, there is an increasingly vibrant and diversified general economy built around the financial industry, service industry and manufacturing industry. Furthermore, the bulk of our population is located in major urban or sub-urban areas.

Despite this, the practical reality is that there are significant differences in the weighting of our votes across Canada and within each of the Provinces so that the votes of urban citizens are significantly discounted compared to the votes of rural citizens. This discrepancy, which dates back to the earliest days of Canadian history, has been endorsed as a permissible part of our democratic culture in what I think of as one of the great lost opportunities for the Supreme Court to enhance democracy in Canada. In a reference concerning the electoral boundaries in Saskatchewan, the Supreme Court of Canada held that the protection given to the right to vote does not imply one person one vote. Instead it allows for electoral boundaries to be set so as to allow for significant differences in the populations of ridings.

The difference is most dramatically seen at the federal level. For example, the electoral district of Labrador has a population of approximately 27,000 people. By contrast, the urban Vancouver riding of Vancouver-Kingsway (which includes some of the more socially challenged areas in the nation) has a population of close to 115,000. While these numbers reflect total population there is no reason to expect that the voter population is radically different in terms of ratios (although there will be more non-citizens in Kingsway). Thus, if the ratios are even close to true, a vote in Labrador is worth over four times a vote in Kingsway.

Traditionally this has been justified on the basis of the physical size of a given riding and the rigors attached to traveling to see all constituents. By contrast, the argument goes, a legislator can walk around an urban riding in a few hours. This argument rings hollow in the modern era for a few reasons. First, even in rural ridings it seems that most of the population is centred in a few central locations within the riding. Second, a great deal of modern communication between elector and representative occurs through electronic media such as the telephone or the internet. Third, the reality of most urban ridings is that the ease of walking around is vastly counterbalanced by the burden imposed by the number of people and diversity of peoples and problems found in the complex urban environment. This is not to say that life is harder in the city necessarily, but it is to say that it certainly is not easier.

Urban and rural ridings certainly have different needs but we should not address those needs by undermining core democratic principles. If it is harder to represent phycially large ridings then figure out ways of making that representation easier: allow for more contituency offices in more towns, assist in developing on-line forums or give higher travel budgets to the legislators from those areas. These get at the root of the issue without saying that the vote of the city dweller is worth less than the vote of the rual inhabitant.
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Wednesday, August 15, 2007

Maternity Leave vs. Parental Leave

The Federal Court of Appeal in a decision released very recently (and posted on the website today) upheld the different leave regimes provided for mothers who give birth to children as opposed to mothers who adopt infants. This is the third appellate level decision to reach this result. This has all the flavour of a case being set up for the Supreme Court of Canada. The decision appears to be very tightly reasoned (or at least as tightly reasoned as a s. 15 case can be) and so I suspect the law will ultimately be upheld, even if the Supreme's give leave to appeal.

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Silly Education Ideas

Newfoundland government, likely in the latest bright idea to entrench its position for the next election, has come up with the bright idea of making Memorial Univeristy's satellite campus in Corner Brook, Grenfell College, into an independent university.

A recent article CBC comments on how this will have the effect of creating the most expensive (to run) university in campus given the extraordinarily low student population that will be available to defray the core costs associated with running a university. Simon Lono comments on this at Offal News.

On a personal level I think this idea will produce a weak educational institution for a few inter-related reasons. First, the target population is limited (and declining) population on the west coats of Newfoundland. While these are fine people creating a school that depends upon them staying home undermines what is one of the leading educational functions of any univeristy -- getting young students away from home. As a two year college that gives students a foothold in higher education and time to decide between more substantial institutions elsewhere, Grenfell serves a useful purpose. As an end of the road it does not.

Second, what is often missed about univeristy is that much of educational value comes from other students and not the faculty. I know from personal experience that no matter how good the faculty, there is nothing like a group of keen, motivated peers to drive a student to learn. The academic stimulation that comes from competition and conversation cannot be replicated in the lecture hall. The reality is though that such communities of high quality students are generally found either at larger schools with strong faculties or at well established elite schools. Grenfell will be neither.

Establishing Grenfell as a university will present an option to young students which will be misleading. They will see the title 'university' and think that they are being offered a program that is on par with other univeristies when it patently will not be. What they will be offered (except possibly in certain narrow specialty areas such as fine arts) is a community college experience in a college that will face severe economic challenges as well as severe reputational challenges. A wise government would recognize that this idea will do nothing to further the future of Grenfell, Memorial or the students of Newfoundland.

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Environment Clash Predicted?

If only pollution were so kind as to understand the appropriate division of powers between the Federal and Provincial governments and to know when the boundary of Alberta had been reached. Sadly the reality is that the effects of most industrial development reaches beyond either territorial or jurisdictional boundaries -- fish gotta swim, pollution gotta drift.

Peter Lougheed spoke at the Canadian Bar Association conference in Calgary yesterday and made the headlines in the Globe today predicting an upcoming clash between the Federal government and Alberta over Canada's desire to protect the environment and Alberta's desire to develop the tar sands (article reproduced below). This is a very real conflict that is coming. However, it is not clear that it is likely to happen under the current regime in Ottawa given the apparent lack of appetite to push an agenda that either expands environmental protection or expands (or even protect) Federal jurisidction.

The fight when it does come will be interesting. There is very clear language in our Constitution that gives the Provinces control over the development of natural resources within their boundaries. By contrast the word 'environment' cannot be found and there is no clear Federal power to legislate in respect of environmental protection. Instead there is the overarching power on the part of the Federal government to make laws in respect of 'Peace, order and good government' supplemented by a range of particular powers over things such as fisheries, oceans, navigable waters, Indians (and their rights), inter-provincial undertakings and trade, and the criminal law.

Mr. Lougheed admits that the fight is uncertain but he clearly favours the Provinces in this matter saying:

Mr. Lougheed told reporters after his speech that it is far from sure which side of the conflict will win at the Supreme Court, particularly considering the Court's penchant for interfering in questions of government policy.

However, he said that, in his opinion, the BNA Act clearly guarantees provinces the “exclusive” right to decide how to develop, conserve and manage natural resources.

Mr. Lougheed is obviously hedging his bets in making this statement and he is wise to do so. First, the principal pieces of Federal environmental legislation (the Canadian Environmental Assessment Act, the Fisheries Act, the Species at Risk Act) are carefully written so as to apply only if one of the explicit Federal heads of powers is brought into play. Thus, if Mr. Stelmach can find a tar sands project that does not require the use of fish bearing rivers, lakes or other such fish habitat he is free to develop them without the Federal governmen meddling at all. Unfortunately, the tar sands require the use of about one tonne of water for each tonne of oil produced so such a project would require the development of presently unknown technology.

Second, note the use of the word 'exclusive' in Mr. Lougheed's quote and contrast it with my earlier post on the Supreme Court of Canada's recent federalism law. These recent decisions make it clear that the Supreme COurt of Canada prefers to allow Federal and Provincial laws to operate together, except for certain narrow core areas which will be protected. Despite the critisms that are directed toward the Supreme Court for being activist or policy driven this actually reflects a significnat backing out of the area of policy. Effectively they are saying we are going to reduce the area in which we have to referee between the Provinces and the Federal government and let these types of policy disputes get worked out in the court of polictics.

There is a long history in Canada of the Supreme Court of Canada holding that Federal environmental laws that are valid in their areas can limit activities carried out under equally valid Provincial laws. The fisheries example is the classic model: a person who pollutes a river while carrying out a provincially authorized logging operation can be convicted of destroying fish habitat under the federal Fisheries Act. This is old law dating back to the days when the Supreme Court of Canada was filled with crusty conservatives (as if it isn't now).

Finally, it is also worth considering the following quote from a realtively recent Supreme Court of Canada case upholding provincial powers in the area of environmental protection (this is the first paragraph from the Hudson v. Spraytech decision):

The context of this appeal includes the realization that our common future, that of every Canadian community, depends on a healthy environment. In the words of the Superior Court judge: “Twenty years ago, there was very little concern over the effect of chemicals such as pesticides on the population. Today, we are more conscious of what type of an environment we wish to live in, and what quality of life we wish to expose our children [to]” ((1993), 19 M.P.L.R. (2d) 224, at p. 230). This Court has recognized that “[e]veryone is aware that individually and collectively, we are responsible for preserving the natural environment . . . environmental protection [has] emerged as a fundamental value in Canadian society”: Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 55. See also Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 16-17.

Sounds like a matter of national importance to me ... doesn't it to you?


Clash over oil sands inevitable: Lougheed

Globe and Mail Update

August 14, 2007 at 2:48 PM EDT

Calgary — A war is looming between Alberta and the federal government over pollution caused by oil sands development that will far surpass any previous federal-provincial battle in its political and economic stakes, former Alberta Premier Peter Lougheed predicted Tuesday.

Mr. Lougheed told a Canadian Bar Association convention that a ferocious constitutional clash is all but inevitable, pitting the federal right to protect the environment against the provincial right to develop natural resources.

Mr. Lougheed – who was at the epicentre of similar, historic conflicts in the 1980s involving the National Energy Plan and the repatriation of the Canada Constitution – said that the clash will be “10 times greater” than federal-provincial conflicts of the past.

“The issue is there front and centre, and coming to a head,” he said. “I think the issues we saw before – and I was involved in many of them – were important. I don't minimize them. But they aren't even close to the issue I have just described.”

He said that Alberta's desire to bypass toughened federal environmental laws will cause considerable dispute within the province itself, and will “cause significant stress to Canadian unity.

“The government of Alberta, with its acceleration of oil sands operations, will in my judgment be seen as the major villain in all of this in the eyes of the public across Canada,” he said.

A major source of greenhouse gas and water pollution, the tar sands project is expected to double in size within the next few years.

Mr. Lougheed predicted that the dispute will very likely go before the Supreme Court as a constitutional reference, forcing the Court to decide whether the British North America Act gives the province the right to develop its energy resources as it sees fits.

“My surmise is that we're into this constitutional legal conflict soon,” he said. “And my surmise is that – and this is strong stuff – national unity will be threatened if the court upholds federal environmental legislation and it causes major damage to the Alberta oil sands and our economy.”

Mr. Lougheed said he is convinced that public concern for the environmental is no passing fad and will only increase pressure future minority governments in Ottawa to apply strict pollution guidelines.

Ontario may face a less extreme version of the oil sands constitutional battle, since it will be under great pressure from the federal environmental laws with regard to its auto industry, he added.

Mr. Lougheed told reporters after his speech that it is far from sure which side of the conflict will win at the Supreme Court, particularly considering the Court's penchant for interfering in questions of government policy.

However, he said that, in his opinion, the BNA Act clearly guarantees provinces the “exclusive” right to decide how to develop, conserve and manage natural resources.

In his speech, Mr. Lougheed also:

- Criticized successive Alberta governments for allowing the province's Heritage Savings Stress Fund to “wither,” instead of steadily injecting more money into it. He said the fund should not contain more than $50-billion, not the $12-$13-billion it currently holds.

- Expressed his amazement that there have not been regular first ministers conference held, led by the federal government, to thrash out important political issues.

“I think there should be … an obligation on whoever the prime minister is to have a full-scale, televised first minister's conference each year. I think it is an embarrassment that that has been allowed to lapse.”

- Repeated a concern he first expressed last fall that tar sands development is proceeding in a haphazard way which threatens the environment. “But there is so much momentum there that it isn't going to be easy to slow the process,” he noted.

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Tuesday, August 14, 2007


Interesting new experience in eating establishments last week.

While over in Vancouver interviewing witnesses for my next foray at (well can't tell you that now can I?) I went out with two friends to an interesting little dining establishment on the edge of Gastown called Salt.

Salt is not going to make its business on walk-by traffic -- it is situated down a small sidestreet called Blood Alley which will not be drawing the tourist hordes any time soon -- nor on the big appetite crowd. It has no kitchen and essentially specializes in what my friend Mary kindly refers to as 'picnics' (although most armies of ants would be sorely disappointed with the quanitities).

The idea is simple -- there is a board which lists a column of cheeses, a column of cured meats and a column of interesting condiments, you choose three out of the first two columns and three condiments and you are away to the races. The tastes are good, the quantities are small (which is good for me as I have been neglecting the gym of late) and it is important to supplement all of the above with wine.

While it may be tempting to dismiss the experience out of hand as something that could be replicated at any deli, in fact it is worth the visit. The decor is minimalist and stylish and the environment encourages experimentation in a way that the deli counter just does not. This is particularly so in respect of use of the condiments as one is unlikely to be tempted to buy a bottle of balsamic reduction at the local deli to try dipping some new meat into. Also, the space is oriented towards sitting down and enjoying the company with whom you have arrived -- something that also is not generally encouraged in most delis.

Not cheap -- but interesting.

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Lawyers and Their Image

The image of lawyers is a complex and peculiar issue. I always say that the ultimate test of what the real image of the lawyer is to see if parents have yet gotten to the point where they weep and hide the pictures of their children when it is announced that the acceptance to law school has arrived or the call to the bar ceremony is to begin. While I know many children who have had their parents denounce them for their choice spouse, sexual orientation, tattoo or career, I have yet to run into anyone who says "my Dad hasn't spoken to me since I went to law school and my Mom has to call me in secret and she always cries."

The standard comments that people make about lawyers though are actually quite understandable. Except for buying a house most people have contact with lawyers at the absolute worse times of their lives: their marriages are falling apart, they have been badly injured and need to sue, they are being sued, they are going broke, their house renovation has gone poorly and so forth. What makes it even worse is that generally the lawyer has to deliver bad news to the ears of the client even when the case is good: "yes Mrs. Smith, you will get half his income, half his house and the Spode China but judge will not have his member cut off for sleeping with the secretary -- the judge doesn't care if he slept with the secretary."

In a sense our image as a profession reminds of an old lady I knew in Newfoundland who refused to go to the (then) new Health Sciences Complex in St. John's. She said, "people die there." Of course they do -- it is a hospital full of sick people.

On top of that we charge for doing all of this.

Even for people who never have to deal with the sharp end of law in all their life these images are reinforced in various ways. In the case of the litigators (who constitute actually a small part of the profession but really establish the image in the minds of most people) the negative impressions that people have are amplified in the retelling. The unhappy spouse who cannot get their lawyer to promise them vengance rather than a share of the property talks to his/her friends about how heartless or unsympathetic their lawyer is when the reality is it just the lawyer doing the job -- telling the client what the law is not what we might wish it to be. The situation is even worse when the story is being told about the lawyer who cross-examined them.

A case in point is my first trial in the Superior Court where I was allowed loose to cross-examine witnesses. We were defending a doctor who had performed back surgery. The surgery had apparently gone well but the patient subsequently developed a complication called cauda equina syndrome (you do not ever want to hear your doctor say, "I am sorry but you have cauda equina syndrome"). The patient described the feeling he went through on a near constant basis as the sensation of having a 'hot poker rammed up' his rectum. Needless to say the patient was not happy and said that either the surgery had been done poorly or he had not be warned of all material risks.

The expert evidence was unequivocal that no flaw in technique or decision could be identified. My leader demolished the Plaintiff's expert in cross-examination and I was left with the job of dealing with consent. The clever idea I had was to ask the Mr. X. if he had been afraid of having the surgery because of the anesthetic and I successfully established (1) that he was terrified of the surgery, (2) that he knew that there was a chance that surgery could kill him or leave him brain damaged, (3) that he thought both those options were worse than the hot poker and (4) that he had the surgery anyway. Given this the judge accepted that even if Mr. X had been told of the distant chance of cauda equina he would have had the surgery anyway so the consent case failed because it would have made no difference if this risk had been explained or not (the Plaintiff failed to prove causation to use the legal lingo).

To the lawyer this is a great story about a clever cross-examination with interesting facts and a happy ending but looked at from the point of view of the two clients this is nothing funny. From Mr. X's point of view he has had a terrible outcome -- he likely still suffers to this day -- and he has to feel that he was tricked by a clever punk kid into sinking his case. Everything that was done to him in that courtroom was legally and logically correct but it defies the intuition that the hot poker is not right. From Dr. Y's point of view he was dragged through a process which took years to establish what he knew from day one -- he had done a good surgery which had had a rare but serious complication that was caused by circumstances not incompetence. Again, what he saw was a lot of time get burned and ultimately no clear vindication because he had to sit through the accusations of incompetence with no personal rebuttal. From Mr. X's point of view we were high paid tricksters who pulled the wool over a judge's eye's; from Dr. Y's point of view we were dalliers who failed to adequately crush this complaining patient with all due dispatch.

These thoughts apply even to lawyers who do happy things -- like help people buy their homes. This is a transaction that occurs every day likely dozens of times a day across Canada. Subject to the effects of title insurance, each of these transactions involves a small piece of legal work which is designed to make sure all aspects of the transaction are properly documented and the documents properly registered. In some jurisdictions the lawyer also has to do a fair bit of work to check title to make sure person selling the house actually owns the house. This little peice of legal work typically adds anywhere from $300-$600 to the cost of buying the home. The problem for the image of lawyers is that if the job is done perfectly then the client sees absolutely nothing happen: that's that whole idea -- the lawyer does the work so that nothing will ever go wrong. Unfortunately for the image of the lawyer this looks to the client like an extra transaction cost that serves no purpose other than to feed the great gods of the legal profession.

In the end lawyers are in the business of managing conflict. Either we manage affairs so as to avoid it, which often involves reminding people of downsides to happy things that they do not want to hear about, or we manage the disputes when they do occur, which puts us in the midst of people's personal hells. Which ever is the case we generally tell people things they do not want to hear and often have to frustrate their dreams, ambitions or hopes. But in doing so we also solve their problems or better still avoid greater problems. We help people understand things that are difficult to grasp, particularly in the heat of moments of emotion, and we steer them clear of the shoals. If you want to see what lawyers do go down someday to the local chambers court and watch a few hours of the unrepresented parties in matrimonial disputes try to deal with their issues in front of the judge without legal assistance. For me at least, the reward is not in the type of image that some professions have but in the challenge that comes from figuring out the problem and devising a solution that works effectively (oh yes, and there is that small matter of the fee, my invoice will follow).

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Monday, August 13, 2007

Lawyer Life Lessons #1 -- Don't Panic

It has been suggested to me that my blog is rather themeless and so I have decided to introduce not a theme but what I hope will be an ongoing strand of some use to law students, articling students and new associates. I am at that convenient point in my career where the joys and miseries of getting started are still fresh but I have moved far enough along to have some experience and perspective that can be of use.

For those of you who remember The Hitchhiker's Guide to the Galaxy you will recall in that the storied guide had written in large letters on the cover the words, "DON't PANIC". This is probably the most important phrase that you can learn and live by to get you through starting in law. Indeed, the further I go in law the more I think it remains the most important guiding principle -- the unexpected and unplanned for will always come and what will separate success from failure in most cases is the refusal to panic.

In my first few years articling and as associate I constantly faced one critical realization at each turn in the road -- I have no clue what to do next and people who should know better are paying me to tell them what to do. There were numerous times that I heard phrases like 'the rule against perpetuities', 'dominant and servient tenament' and 'the rule in Brown v. Dunne' where it was clear that I supposed to immediately know what the lawyer was talking about and frankly they could have been speaking hungarian for all I knew. Looking back on it I now know that the lawyers knew that, largely because except for -- and this is important -- a way of thinking law students essentially learn nothing much more than the ABC's of law in law school. Generally speaking I had two choices at the point where the English words stopped and the Hungarian began: (1) ask or (2) spend 20 hours at the library trying to translate. The right answer was almost always (1).

There is very little in law that cannot be fixed. There are a few mistakes (missed that limitation period did you?) which may be fatal, but those are very rare and if there is one thing that lawyers are good at it is finding loopholes to fix mistakes like those (and there is always insurance for the fatal errors). Usually though it is a lot easier for someone who has been around the block to figure the problem out than for the person who made the mistake to figure it out on their own without help (that is why people hire lawyers after all). Generally, they lack the experience to know the solution and, more seriously, their judgment is impaired by this impending sense of panic that sets as they contemplate all the dire personal consequences to follow.

So -- don't panic -- just ask. Ask the lawyer who assigned the problem or, particularly if they are the problem, ask another lawyer. Someone will have some advice and guidance and will likely have a solution.

The thing to remember is that at every level the law firm as a whole wants you to succeed. Obviously there is an interest in success on the particular file but more importantly there is a desire for you to succeed and stick around. There are crass reasons for this (succesful articling students and associates make mediocre partner's shine) and not so crass reasons (we actually usually like the people we hire).

So, lesson #1: DON'T PANIC.

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