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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.