Keep the Courts out of this Mess

Norman Spector made a very bad suggestion in the Globe and Mail today, namely to ask the Supreme Court of Canada to sort out the strength of the Coalition's claim to government. This would embroil the Supreme Court of Canada in an entirely political question. This would do nothing to settle the feelings of the losers. This would forever tarnish the reputation of the Supreme Court. This is an inherently political matter and it will be for the Governor General, politicians and the public to sort it out.

The Supreme Court of Canada has in the past sorted out whether certain constitutional conventions exist. For example, the court figured out whether or not there needs to be a consensus of provinces before asking for a constitutional amendment (before the patriation of the constitution in 1982) and also answered the question of whether or not Quebec can separate after a clear expression of political will. In the the Patriation Reference however the Supreme Court of Canada made it clear that while it would answer questions about whether or not a convention exists, it would not and should not become embroiled in the political debates about whether or not political conventions have been honoured. It said this after finding that separation was possible after the political will of Quebec had been clearly expressed and negotiations had been honourably attempted:

The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution", not to usurp the prerogatives of the political forces that operate within that framework. The obligations we have identified are binding obligations under the Constitution of Canada. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.

In this case we know the convention -- the Governor General must take advice from the Prime Minister if that Prime Minister has the support of the House of Commons. If a Prime Minister does not have the support of the House of Commons, then Governor General must either dissolve Parliament or invite new players to form a government. These powers have been used numerous times through history. David Peterson assumed the government of Ontario without an election being called. Winston Churchill took over the Government of England without an election being called. Robert Borden (briefly) took over the Government of Canada without an election being called -- and did so over the objections of the outgoing Prime Minister. These situations arise rarely but when they do arise the political circumstances are unique (so a court precedent will serve little purpose) and they are political (so it is hard to see what the real value of legal precedent is).

We are all going to have to be grown up boys and girls and not ask the Courts to bail us out of this one. We are going to have to make our own personal judgments about whether avoiding Stephen Harper's shenanigans makes a deal with the Bloc (or the Liberals or the NDP, depending on your values) worth it. We are also going to have to decide how we express our views so that they influence our political actors. That is we are all going to have to engage in politics or let someone else chart the country's course for us.

The United States Supreme Court forever tarnished its reputation through its intervention in the Bush-Gore showdown. Let's not do the same thing to our Supreme Court.

A Constitution similar in Principle to that of the United Kingdom

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom

Did you know these were the opening words of our Constitution?

Did you know that our Constitution does not mention the office of the Prime Minister?

Did you know what prorogation meant before last week?

The events of the last week have been an object lesson in the fact that we in Canada are not the United States -- we do not elect a president and the Prime Minister does not have the same security or prerogatives that the American president has. Instead, in line with the (unwritten) constitution of the United Kingdom, our governments (the Executive) have no mandate if they do not have the day to day support of the House of Commons. Since the days of Pierre Trudeau this has not been a major issue. Canadians have consistently returned Parliaments where one party of the other held a healthy majority and so the government could go to the bank on the certainty that their plans would be backed in the House of Commons and their continued residence in the Langevin Block was secure. It is this fact that people started referring to our system as an elected dictatorship -- but it was not the system, it was the fact that we elected consistent majority governments which allowed Prime Ministers to centralize power across the street from Parliament in the Prime Minister's Office.

The principle that the Government governs only with the consent of the House of Commons is a bedrock principle of our constitution. There is a long and convoluted history of how this came to be but, appropriately enough given last week's shenanigans, at its base is a simple thing -- money. Starting likely in the 1100's the rule fell into place that the Crown could not levy taxes or spend the public's monies without the consent of Parliament. Eventually this became even stricter so that now (well since 1867) our Constitution actually says that any law appropriating money or taxes must originate in the House of Commons:

Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons. ,

Of course money being the lifeblood of government the ability to choke off the supply of funds therefore becomes the means of killing the power of the Executive to do anything.

The British and American approaches to the legitimacy of the government independent of the power of the House of Commons represents a fundamental difference in view. In the United States the system is seen as one of contending branches of government, each with their own mandates and constituencies. If deadlock arises because of this, so much the better, as the drafters of the Constitution largely wanted a government that was modest in size (now that went wrong didn't it) and hard to put into motion. Their model was Rome with its complex puzzle of institutions and rules largely designed to keep the government from doing things that might upset the vested interests.

In Canada (and the UK) the system is one that is premised on power actually being vested in Parliament. A government without the support of Parliament therefore is not legitimate and must either seek the support of the electorate or step aside for a different government. This has happened many times in Parliamentary history and will happen again.

Does this therefore mean that the current government is illegitimate for having avoided the current vote? Despite my doubts about Mr. Harper, the answer to that question is "no". The current government did get the confidence of the house and as of yet has not formally lost it in a vote. The Governor General seems to have also considered the issue and by acceding to Mr. Harper's request effectively determined as a matter of fact that she believes that the advice she is receiving from Mr. Harper is on solid enough footing that she should not reform the government under new leadership. As for the fuss around the decision to prorogue, well that is matter that is entirely in the hands of the Governor General and so, in effect, her decision, by definition, represents an effectively unappealable ruling that Mr. Harper has made a legitimate request. It should be noted that historically our parliamentary system has often had battles over substance that were fought using delay or over the power to delay and so this is not out of the traditions of Parliament.

For example, the Long Parliament was a situation where the English Parliament deprived Charles I of the power to dissolve Parliament to prevent him from doing what Harper did. In the early 1980's the Conservatives refused to attend Parliament on a division, effectively freezing time for almost a week, in order to prevent a vote from taking place on one of the constitutional resolutions. Even in the regular business of Parliament it is recognized that one way to say "no" is to say "later". One of the possibilities open in the House of Commons on second reading of a bill is to pas the "Six Month Hoist" which puts off considering a bill for six months (usually killing it). Similarly, historically when the Crown refused to give Royal Assent to a bill, the Crown would not say "no" or refuse to assent but would say "S'advisera" -- I will advise myself. There was no "no" but no "yes" either.

What cannot be lost sight of is that all of these conventions are part of constitution but are not subject to the Courts' review. As was said in the Patriation Reference about constitutional conventions:

The proposition was advanced on behalf of the Attorney General of Manitoba that a convention may crystallize into law and that the requirement of provincial consent to the kind of resolution that we have here, although in origin political, has become a rule of law. (No firm position was taken on whether the consent must be that of the governments or that of the legislatures.)

In our view, this is not so. No instance of an explicit recognition of a convention as having matured into a rule of law was produced. The very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement.

The attempted assimilation of the growth of a convention to the growth of the common law is misconceived. The latter is the product of judicial effort, based on justiciable issues which have attained legal formulation and are subject to modification and even reversal by the courts which gave them birth when acting within their role in the state in obedience to statutes or constitutional directives. No such parental role is played by the courts with respect to conventions.

Who then rules on whether or not conventions have been properly followed? Well, ultimately it is the political players -- in the first case the Prime Minister and Governor General but ultimately the House of Commons and in due course the electorate.

The Legislature Raids go to Ottawa

The Supreme Court of Canada today granted leave to appeal and expedited the appeal and cross-appeals of everyone involved in the ongoing fracas over how the Virk and Basi trial should proceed. The issue at this stage is the degree to which the Crown is able to shelter confidential informants from scrutiny (even of the most basic sort) by the defence.

It is extremely rare for the Supreme Court of Canada to intervene in any such fight mid-trial so obviously they are intrigued by the circus which has occupied our courts, media and public for close to six years now.

Homelessness, Medicare, Parks and Unintended Consequences

The courts have struggled for a quarter century over whether the Charter of Rights and Freedoms has empowered them to compel the government to enact a social welfare system. This fight is now being played out over the rights of the homeless to protect themselves from the rain and the rights of the citizenry of Victoria to control the use of the public parks. The outcome of this case together with a number of other recent decisions will likely have a profound effect on Canada's social safety net but the nature of that effect may be quite different than anyone involved expects.

In a recent decision by Madam Justice Ross the British Columbia Supreme Court struck down a Victoria by-law which prohibited the erection of even temporary shelter in Victoria's parks. Justice Ross held that such a prohibition, in the face of Victoria's failure to provide an adequate alternative to homeless people, interfered with the security of the person of the homeless who are compelled to sleep outside on public property. Given all of the circumstances around the management of parks and the treatment of the homeless in Victoria she also held that the City could not justify this breach of the homeless persons' section 7 rights as a reasonable limit, demonstrably justifiable in a free and democratic society.

This decision has been appealed by the City of Victoria (a step that is entirely reasonable no matter how politically controversial) and how the courts will ultimately treat this matter is highly uncertain. This is an area of law that is hugely in flux and on a number of matters it has been very hard for anyone to say with any certainty how any particular case will go. However, given the Supreme Court of Canada's decision regarding Quebec's ban on private medical insurance for services covered by the Provincial medicare program (Chaoulli), anyone who says Justice Ross' decision is clearly wrong or unreasonable is not watching what is going on. In Chaoulli the Supreme Court essentially held that if the government is going to ban individuals from fending for themselves in terms of accessing medical care then it equally has to ensure that it has put in place an adequate alternative. Madam Justice Ross has essentially extended this logic holding that if the state is going to ban people forced to sleep on public property from sheltering themselves from the elements, then it has to show it has provided an adequate alternative.

The Victoria homeless challenge has been clearly taken by people motivated by the larger vision of the Charter of Rights and Freedoms being used as a tool to advance social welfare policy. That is, the goal is not to actually entrench camping in the parks but instead to shame the governments into actually moving to provide some real solutions for homelessness in British Columbia. However, the fact that this decision builds on Chaoulli highlights the danger of this course of action from a social policy perspective. In Chaoulli it is evident that the goal of the challenge was not to motivate the government to strengthen the public medical care system, instead it was designed to provide cover for the development of a parallel private system of medical care. While the response to Chaoulli has been slowly emerging there is a real sense that this goal will be achieved. There is only so much money that the public will put into medical care and therefore the Supreme Court of Canada's decision creates room for private medical care to fill the gap.

In the case of the Victoria bylaw what may turn out to be the actual outcome is not the development of a meaningful homelessness strategy but instead a regulated system of camping or tent cities. This outcome has been suggested by Victoria's immediate response post-decision: a small number of new shelter beds and a by-law permitting orderly camping provided that camp is broken by early morning. If the decision is upheld on appeal, my prediction is that what we will see is the development of designated sleeping areas on public land where permanent tent cities may be erected. This will be coupled with bans on sleeping in most parks at most times. Thus the shameful solution to homelessness will become the preferred solution to homelessness. It is a cheap solution and, provided that the tent city is not situated in a well used park or too close to residential areas, the citizenry will not rise up in arms. Moreover, the City will be able to point at Madam Justice Ross' decision as cover for what many will see as an ugly outcome.

It will take time to see if this comes to pass but given the complexity and costs associated with resolving the issues of homelessness (particularly in an economic downturn), I expect it will be a far too tempting option for our governments to resist. It is an outcome that will flow from a well-intentioned attempt to use what is at its core a libertarian document (the Charter of Rights and Freedoms) to implement social policy change. Sadly it will create incentives to continue to decrease the amount and quality of public space available and has given governments an easy out on the homelessness front.

What then should have been done? In my view this proceeding had to be taken -- we are in a homelessness crisis in Victoria and we should not stick our heads in the sand in this regard. However was it the best route? One of the fortunate side-effects of the emergence of Charter is the devaluation of formal political action in favour of formal legal action. That is, many smart, socially engaged people who before would have become actively involved in the formal political process and driven social policy change through that process -- which involves coalition building, consensus building and public engagement -- now head straight to court. The problem with this approach is that the court (by its very nature) can offer only a limited range of solutions and those solutions can often be received in a very hostile manner by the public if the proper political groundwork has not be laid before the decision is reached.

The Supreme Court of Canada has described the interplay between the courts and the political institutions in our society as being a dialogue. Some critiques view this as giving the courts an overblown role in our society by claiming an equal footing to Parliament and/or the legislatures. In my view it does the opposite. Instead of carving out a sacred judicial territory for human rights it gives a real role to our political institutions to decide when and how human rights will be respected -- or limited. But this means that in fighting for human rights in Canada -- including the basic ability not to have to sleep uncovered in the rain (yes, it rains in Victoria), citizens cannot just turn to the courts. The fight has to be equally fought in the democratic realm by means of public persuasion and also participation in electoral politics. This may involve trade-offs, patience and some disappointment but the alternative is the entrenchment of court approved tent cities.

Civil War at the BCMA

The public was given an interesting peak into what is clearly a nasty civil war going on at the BCMA this week as the British Columbia Supreme Court brought an end to quasi-discipline process the Board of Directors was pursuing against one of its own.

The case is interesting from a legal point of view as it shows an increasingly willingness on the part of the courts to intervene in the internal affairs of private organizations. I expect that this is particularly true where those organizations have the ability, through the granting or denial of membership or some other status, to have a real effect on someone's rights, reputation or overall standing in the community.

From the public point of view this case is interesting because it gives a hint about the debate that is going on within the medical community about how doctors should be paid and, perhaps more importantly, what the role of the family doctor/general practitioner is in our medical system. This is an incredibly important debate as one of the most important differences between our medical system and the American system is the importance placed upon the delivery of primary medical care rather than specialist medical care. This approach in Canada has, I expect, led to overall better levels of health through early detection of emerging medical issues and somewhat better coordination of health care services than can be achieved through the more silo-like approach of specialists. How does this tie in with this case? Well, the BCMA is effectively the union for doctors when it comes to negotiating with the government and anything touching on the way gp/gp's are paid has consequences for how we all get medical care.

Rex Murphy and Human Rights

Rex Murphy has been a fixture at CBC since the 1970's. I remember him starting to find his voice as an overinflated thesaurus on the local CBC broadcasts in Newfoundland. Since then he has gone on to ever greater podiums from which ever more polysyllabic orations can be poured out over the ever grateful Canadian masses. The latest target of this silver tongued pedant is Christine Lynch (Globe and Mail, November 15, 2008).

Ms. Lynch is the Chair of the Canadian Human Rights Commission. Now what evil has Ms. Lynch, the publicly appointed head of the organization our Parliament created to protect human rights, committed? Well it seems that she had the audacity -- the absolute cheek -- to show up at the Cenotaph on Remembrance Day to lay a wreath to honour the dead of the various wars that ordinary Canadians have fought in over the last two hundred years. Mr. Murphy thinks it is odd that she should show up because Canada's human rights commissions "offending the very core of the concept" of human rights.

Now what is it that Canada's human rights commissions do that so offends Mr. Murphy? Surely it must be that they keep the racially oppressed from accessing schools? Maybe it is that they foment hatred against oppressed minorities (like Rhodes scholars)? Perhaps they have punished fearless reporters for bravely reporting on the government? Well, no, not really, it seems that what they have done -- wait for it everyone -- is allow people to write them letters and then look into what those letters say. Yep, that's it folks. Christine Lynch's great affront to the Canadians who fought in two world wars and a number of other smaller battles is that she opens her mail, reads it and tries to make sure that she understands what the ordinary Canadians have written to her is taken seriously (even if their complaints are ultimately dismissed out of hand without a hearing).


At the heart of Mr. Murphy's complaint (though he mentions it in just one line) are the complaints launched against Mark Steyn or Macleans by various Muslims who were offended by one of Mr. Steyn's more vitriolic pieces on the future of West in the face of the Muslim onslaught. In each and every one of these cases here is what happened -- somebody at the human rights commission opened the mail, read the letter, invited Mr. Steyn and Macleans to have their say before doing anything and then dismissed the complaints without a hearing. There was no trial or prosecution. There were no jackbooted raids by hordes of feminist or Muslim stormtroopers. All there was was a request that boiled down to 'do you have anything to say about this?' Even though Mr. Steyn and Macleans essentially said 'buzz off' and then launched a year long campaign in the press about the depths of their persecution, the commissions decided that no action was needed.

Mr. Murphy sees the courts as the remedy for protecting 'real' human rights as opposed to what he sees as the trivial and meritless claims of the great unwashed who end up before the human rights commissions across Canada. This plea betrays his ignorance born of the incredible privilege of having a perch at the top of a state sponsored broadcasting network which has supported him for the greater part of his working life. The Courts with their "certain time-tested laws" have given little or no protection to freedom of speech. The law books are filled with laws that prohibit seditious libel, obscenity, alarming Her Majesty and blasphemy. If it were left to the Courts and the time tested laws Mr. Murphy so admires we could say nothing bad about the government, the church or those with enough money to outspend us in a defamation action. Freedom of expression would largely be a right enjoyed by large media corporations who could afford to hire cadres of lawyers to advance their causes.

Furthermore, traditionally the Courts have steadfastly refused to deal with certain affronts which we intrinsically know to be wrong. An employer in the eyes of the courts was entirely free to fire a man for being a Jew, a black or catholic. An employer was free to mock or label a person for all of the same or to dismiss a woman summarily from the workplace for being a woman. A store owner could deny service on similar grounds. A person who suffered even one episode of mental illness could look forward to a life of unemployment and stigma. While there are those amongst us who feel that employers and others should be free to do these things, most of us know that the reason World War II had to be fought was to change that. We know that Hitler did not appear out of thin air, but out of an atmosphere that tolerated casual, thoughtless discrimination and hatred. Those people who fought and died in World War II, I expect died in greater numbers for the ordinary catholic, Jew, woman or black person who was being beaten down by thugs than they did for the rights of the CBC, Globe and Mail or Canwest Global.

Blogging Again

I took a few months off from blogging as I went through the process of shifting jobs and generally getting re-oriented to my new work environment. Moving a fully operational law practice from one firm to another has been somewhat more exciting in terms of the amount of work involved than originally anticipated (I think it could be best described as dismantling an airplane and then re-assembling it as a new model -- in mid-air with passengers) and I felt that I could not give proper attention to this blogging project to merit posting my thoughts.

I have given some thought though to what this blog is about and have decided to actually focus it on law and events in the public that relate to legal topics. Undoubtedly this will spill over into some politics and social commentary -- for law is fairly well inseparable from those two things -- and perhaps some gossip (for lawyers love to gossip) but I hope to keep a bit of direction to the writing here. I am though thinking about perhaps, maybe having another personal blog for those occasions where I get the urge to write about food, Newfoundland and other miscellany. Now, on with the blogging ....

The Conservatives and Insite

Tony Clement continues his attack on the safe injection site on Vancouver's East Hastings Street by now attacking the ethics of the doctors who have the termerity to support the continued operation of the site. Here is a little sample of Mr. Clement's thoughtfull and insightfull words: "The supervised injection site undercuts the ethic of medical practice and sets a debilitating example for all physicians and nurses, both present and future in Canada." he also added the clever comment of: "junkies and pushers don't belong near children and families. They should be in rehab or behind bars." Hard to argue with that now isn't it -- but wait, do we actually have rehab here in Canada?

In my previous life as a lawyer in Toronto I had the privilege of assisting a number of physicians dealing with problems with alcohol and drugs. In some cases, these were very severe addictions and the College of Physicians and Surgeons had to intervene, not just to protect the public but also to protect the doctors themselves.

Becasue of this, I saw what treatment for drug addiction could look like if properly supported. These doctors, despite in some cases taking staggering amounts of drugs or alcohol, were surprisingly functional. They did not look like the ghostly addicts that are seen on East Hasting Streets with hollow eyes and track marks on their arms. What was also remarkable was the extent to which even if their personal lives were a ruin, their professional skills were intact -- in not one case that I dealt with was there any allegation or evidence that a patient had been injured or mistreated.

The most astounding part of the story though is what happened after discovery and intervention by the College (usually triggered by a warning by a colleague). As these people were doctors and generally had access either to good health insurance coverage or personal resources they could afford excellent and intensive medical treatment and generally pursued it. This did not mean a drop-in to a therapist now and then for a bit of chit chat -- this meant serious 30-60 day admission in inpatient facililities like Homewood Health Centre in Guelph.

These doctors would receive multi-disciplinary treatment that included medical care, nursing care, psychotherapy, physical therapy and occupational therapy. They would receive guidance on the issues that had led them to addiction and the patterns that could lead them back into trouble. They would be given the help to re-organize their professional lives (in some cases it is inappropriate to return to certain specialities -- anesthetists for example are particularly at risk of relapse as are intensivists and emergency room doctors). After leaving hospital they would be given further follow-up treatment and extensive support to put in place mechanisms to prevent relapse. The College would also provide very strict monitoring programs (random drug testing, supervised practices and mandatory medical reporting for example) to ensure public safety

This treatment was successful in every case I saw. These doctors returned to the profession as healthy productive members of society with their addictions under control. But this treatment was expensive and the facilities available for such treatment limited. The reality most addicts face is that the availability of such rehabilitation is a fantasy. No province supports or funds such treatment and the federal government certainly has no intention of putting any funds into providing that kind of care for addicts who are not blessed with incomes north of $200,000.

The other thing that came home to me in seeing these doctors go into treatment and fight to stay in treatment was the importance of having something to come out to. These doctors had homes and families. They had networks of friends. Moreover, the College made it clear that addiction was not a professional death sentence -- treatment would allow them to salvage their careers provided they could prove that the public was not at risk. All of this drove these men and women to succeed at their treatment. The reality we offer the people on East Hastings is nothing -- we label them junkie and pusher and then marginalize them leaving them in poverty, without jobs and in many cases without families. The best people like Tony Clement will offer them is a good hard shake of the finger saying that either they should be "in rehab or behind bars".

The joke in Canada though is that we do not offer rehab. The treatment I just described is expensive (but likely far less expensive than a week in ICU for someone doomed to die). It is also treatmentg that is being offered to people that the conservatives and many members of the general public despise -- "junkies and pushers." Not people who are deserving of the taxpayers dollars in the minds of many.

But, this treatment, if given the proper support can work -- I have seen it work and so have many in the medical profession. We give our doctors a hellish choice -- we say to them treat these people as best you can but then do not let them offer the treatments that work. So what should doctors do then -- Tony Clement would have them walk away and leave these people to rot in jail or on the streets. Tony Clement would have the doctors stand aside and let these people get AIDS, HEP-C, TB and the whole range of nasty (largely antibiotic resistant) infections that destroy these people's bodies and minds. Instead the doctors have said, "well if you won't give us the tools to treat, at least let us reduce the harm." This is what Insite is all about -- true it is not treatment for addiction but it does help these people at least have a chance to some day get to treatment without the whole range of wasting diseases that afflict the impoverished drug addict. For Tony Clement to question the ethics of these doctors -- as he did at the recent CMA conference -- is a joke.

The final part of the joke is that Mr. Clement is part of the government that killed one of the initiatives that in the long term (perhaps in this generation but not by the next election) could have addressed the other side of the equation -- the problem of giving the people on East Hastings something to come out of treatment to. Aboriginal people make up a very large percentage of the victims of drug abuse on East Hastings. Before they were the victims of drug abuse though they were also victims of poverty, poor education and broken families. They have few job skills and no job prospects. Often they have no real family to turn to. The Kelowna Accord was designed to start addressing this -- to set aside the ideological and legal disputes over ideas like rights and sovereignty and to work together to address educational deficits, health problems, unemployment and poverty. Sadly the Tories decided they were not interested.

Holidays Over

Things have been quiet here lately. No posts since July 11 and scattered posts before then. Well now I will get back on track and limber old the old writing muscles and provide a few unsolicited opinions to my small group of readers (who maybe I will get to grow).

The reasons for my absence are multiple but largely boil down to the fact that it is only possible to juggle so many balls at the same time. For me the last few months have been filled with buying a new house, selling an old house (yes, we did have to bridge for a few nail biting months as the market declined), deciding to leave an old job and joining a new law firm. The latter process I discovered is not so easy when you are further along in ytour career as your work does not just go away bit for some reason clients keep pestering you and expect things like their work to be, how do we say it, done.

Any way changes done and best of all a two week holdiday in Spain under my (womewhat expanded) belt I now feel energized and engaged in a way that i have not in months. Amazing what change can do -- once it is done.

The Reserve System

Jeffrey Simpson writes in today's Globe and Mail that the time may have come to ask whether educational outcomes for on-reserve aboriginal people may better be linked to the existence of the reserve system rather than the funding or governance of on-reserve schools. As is often the case when questions like this are asked no specific feature of the 'reserve system' is identified nor is any solution for problem identified.

The reason for this hole in the argument is actually somewhat simple -- it is actually hard to identify a problem with the reserve system that could explain poor educational outcomes. Here is what the reserve system does not do: (i) it does not force or require anyone to live on-reserve; (ii) it does not take away any legal rights that any person holds any where else in the country; (iii) it does not prevent aboriginal people from owning lands, taking jobs or moving to the cities. The reality of these statements is demonstrated by the fact that many (indeed) probably most aboriginal people do not live on-reserve and pursue their lives far from the reserves in cities.

Furthermore, being an aboriginal person living on reserve does not give an Indian (that is a person having status under the Indian Act) access to a tremendous trove of special benefits. With the exception of a post-secondary education grant and extended health care coverage, most Federal welfare/social assistance programs are harmonized with Provincial programs so there is no real advantage to taking welfare on reserve as opposed to off reserve -- the only change is where your cheque comes from. Indeed, for Indians on rural reserves getting the same social assistance as a person in the city can carry with it real disadvantages given the distances that must be traveled to access things like, say, groceries much less the types of services that are available to the poorly off in the cities.

I suspect that the core of the issue is the approach to the delivery of many public services to aboriginal people is not the reserve system but the view that if we just deliver the same per capita funding for a service to a reserve we should expect the same per capita outcome. That is, if the average funding for a child's education in British Columbia is $10,000 per child then the average funding for an aboriginal child should be $10,000 per child and we should expect the same outcome. This is complete nonsense.

There are obviously issues related to the delivery of services in rural areas and the costs that come with the lack of economies of scale. This is a challenge facing all rural communities, of course, but aboriginal communities face the added challenge that they are not part of a larger cultural group that can accept them in their same cultural milieu in the cities if individuals make the choice to move (that is if you are a non-aboriginal Canadian, moving from 100 Mile House to Vancouver is a move within your approximate cultural setting; if you are Chilcotin, a move from Nemiah Valley to Vancouver is move out of your cultural community). But I think there is a deeper issue here.

Aboriginal communities are communities that are in the midst of a profound crisis. To put it in perspective, think of Europe in the Middle Ages following the fall of Rome, the de-population caused by the Black Death and the invasions by the arabic-muslim armies from the Middle East. These events caused profound social and political disruption which led to death, loss of knowledge and education, loss of political structure and war. Arguably, it was not until well into Renaissance or even the Enlightenment that Europe pulled itself out of despair and disruption caused by those calamities. Imagine now how European cultural would look if instead of the Black Death killing 25% to 30% of the population it killed 85%-95% and did so not over centuries but over a period of probably 100 years. Suppose further that the arabic armies rather than being turned back at Vienna, overran Europe and imposed new, islamic legal and religious structures as the dominant structures and finally that traditional European political, religious and legal structures were shunted aside as large arabic/muslim colonial efforts were undertaken. At the very least it would be fair to say that European culture would look very different today.

Yet this is just what has happened to aboriginal people -- regardless of any moral judgement of the rightness or wrongness of these results -- aboriginal society in North America today is one that is only about 250 years from the type of massive disruptions described above. Moreover, it is still part of an ongoing process where the degree to which the colonial power's political, social and legal structures will be imposed on aboriginal society is being determined and/or negotiated. In the case of education, we are only about twenty years from the end of an attempt to impose Western education by means of industrial scaled removal of children from homes combined with effective internment in education camps (imagine if that were done today to rural non-aboriginal communities) and just beginning an experiment concerning how to deliver education to local aboriginal communities. Furthermore, these communities are dealing with adult populations whose experience of education largely focused on the residential school experience which was not well designed to produce high rates of literacy or a love of learning but was instead designed to provide a basic vocational education.

My thought is that if we stepped back and looked at the matter objectively we would see that the problem in delivery of education to aboriginal people on reserves or anywhere is that we have premised it on the idea that we can deliver it on a footing similar to that on which we deliver it to comfortable, middle-class kids living with parents who are employed, love education and are largely literate. The delivery of education to aboriginal people on reserve is in reality a crisis program -- it needs to deal with the reality that it is being delivered to communities which need help in developing social and educational support structures that we just assume exist everywhere else. We need to figure out how to deliver large scale adult education at the same time as we are delivering childhood education; we need to develop means of delivering supplementary programs; we need to look at school meals to give children the basic physical resources to live so that they can concentrate on education. We need to figure out how to create dedicated corps of teachers who will be committed to delivering aboriginal education.

The real debate we are having is not about the reserve system -- the reality is that most reserves in Canada are empty tracts of lands set in remote areas. They are an economic resource held for the communities -- a small part of a patrimony that has been largely taken away from aboriginal people. Taking that away from aboriginal people is not going to inspire children to learn or adults to think that their children will be treated fairly. The real debate Jeffery Simpson is raising is whether we still think that the best solution for the 'Indian Question' is assimilation -- that is, get on with leaving the reserve, move to the cities and assimilate into the mainstream. The reality is that this is exactly the approach which has been tried for close to 200 years, indeed the first Indian Act was called "An act for the gradual enfranchisement of Indians ..." and was premised on the idea that the reserves were merely an interim step on the road to assimilation.

It is the reality of historical experience that convinces me that the pro-assimilationists are guilty of what a friend of mine calls 'magical thinking'. Assimilation was the policy thrust for 200 years and it was encouraged strenuously through forced education, through forced religious training and through economic incentives which made being an Indian not worth it. And yet it failed to produce significant assimilation and instead produced poverty and social disruption in communities which nevertheless maintained their identities. Indeed, even people who were forcibly enfranchised through things such as the marrying-out rules continued to assert their aboriginal identity and maintain their connection to their communities despite becoming the marginalized amongst the marginalized. What does Jeffery Simpson propose in the face of this? The reserves be disbanded? Houses torn down? Children moved to schools in the cities? Does he think that taking away extended dental care and a post-secondary education grant is going to improve the education of aboriginal children?

Details of the Insite Decision

The decision to grant the Insite clinic in Vancouver a reprieve is now available at the British Columbia Supreme Court website.

There is no doubt that this decision will be controversial but for anybody who has been reading the cases or, for that matter reading the headlines, it should come as no real surprise. The Supreme Court of Canada has dealt with a couple of issues over the last few years which nearly inevitably lead to this result.

First, the Court made it clear that while the state has no obligation to deliver medical services, unless it provides an effective alternate system itself, it cannot block other people from delivering those health services. That was the basic thrust of the decision striking down Quebec's laws banning private medical services.

Second, the Court has made it clear that there are two sides to the drug issue. One side is recreational or social use -- this the government is free to ban, regulate and criminalize. The other side is the medical side of drugs -- this the governments can certainly regulate, but they do not have a free hand to criminalize, as this may amount to little more than the criminalization of illness. Can you imagine a law saying "Suffering from the flu is a criminal offence punishable by five years in prison"?

Running up against these legal and rights based principles is the conservative war on drugs agenda -- that is the view that all aspects of the drug problem are fundamentally moral issues dealt with best by the system of criminal law combined with, perhaps, preventative education programs. While there is certainly a strong home grown strain of this line of thinking that runs across social and political lines (this is not just a Harper issue), one would have to be a fool not to recognize that the importance of this approach to drugs is re-inforced by the strong political feelings south of the border on this issue.

These two forces have now collided on the Downtown Eastside and the British Columbia Supreme Court has been forced to make a ruling. Interestingly the judge who heard the case, Justice I Pitfield, is not a judge anybody would place on the 'activist' side of the agenda. Indeed, if anything he would be viewed as a cautious, conservative judge who for the most part focus on the day to day job of judging -- which largely involves sorting out fact from fiction and figuring out which line of argument best makes sense given the well-established cases.

In the end Justice Pitfield was driven to find that Insite provided a valuable medical service to people who are deathly ill with a disease that caries with it the risk of death or further infection. As would anyone who has ever driven or walked through the Downtown Eastside, he recognized that the community of drug addicted people there live in desperate poverty and in what can only be described as filth and are left to cope with their disease in hopeless circumstances. He ultimately found because of all of this that the ban on clinics like Insite made no sense and amounted to a deprivation of "life, liberty and security of the person."

However the appeal courts deal with this question they have to face the sad description of matters provide by Justice Pitfield about the circumstances of drug addicts on the Downtown Eastside:

[89] Residents of the DTES who are addicted to heroin, cocaine, and other controlled substances are not engaged in recreation. Their addiction is an illness frequently, if not invariably, accompanied by serious infections and the real risk of overdose that compromise their physical health and the health of other members of the public. I do not assign or apportion blame, but I conclude that their situation results from a complicated combination of personal, governmental and legal factors: a mixture of genetic, psychological, sociological and familial problems; the inability, despite serious and prolonged efforts, of municipal, provincial and federal governments, as well as numerous non-profit organizations, to provide meaningful and effective support and solutions; and the failure of the criminal law to prevent the trafficking of controlled substances in the DTES as evidenced by the continuing prevalence of addiction in the area.

Insite Clinic Decision -- Early News

The British Columbia Supreme Court rendered its decision with respect to the Insite safe injection site yesterday, granting it an effective exemption from Canada's narcotic control laws. The immediate effect of this decision is to extent the life of the Insite Clinicuntil mid-2009, presumably until the Federal government can craft a Charter compliant law governing such facilities.

While the decision is not yet available online, the word is that the Court decided the case on the basis of s. 7 of the Charter of Rights and Freedoms ("life, liberty and security of the person") and accepted the logic that drug addiction is a medical problem and that providing a safe, clinical environment in which to manage the problem is an important aspect of delivering appropriate medical care.

This will undoubtedly be appealed.

Flies in the Water

The Supreme Court of Canada dismissed the claim of a man who says that he suffered overwhelming psychiatric trauma upon discovering the presence of a couple of flies in a bottle of water. The basic thrust of the judgment is that while it was fair on his part to expect fly-free water, it was equally reasonable for the water bottling company not to face claims of fly-induced impotence (that is, such claims are not reasonably foreseeable).

There is a certain satisfaction in seeing the final result of this case. One of the most important cases in tort law -- usually studied in the first week of law school -- is Donoghue v. Stevenson. This case concerned whether or not a claim could be made against the manufacturer of some gingerbeer where a snail made its way into a bottle and made drinker of the gingerbeer sick. The House of Lords in dealing with an early attempt to ditch the claim said such a claim was possible, but then we never find out what happens at the end of the saga of the snail in the gingerbeer.

At least we know now for flies in the water.

JM Sullivan -- The Recording Angel of A Fading Nation

I often joke that I am a first generation Canadian. Parts of my family have been in Newfoundland since the early 1700's but both of my parents were born before 1949. My father was born before 1933, the year that Newfoundland surrendered its status as a dominion and reverted to the status of colony. In any event, both of them were born outside of Canada and became Canadians as a result of Newfoundland joining Confederation.

Both of my parents though are at the younger end of the cohort of Newfoundlanders who lived in the pre-Confederation era. My father is just old enough to remember the debates that led up to Confederation; my mother was a young girl and those events would have meant little to her. The older part of that cohort -- who include many famous Newfoundlanders -- is slowly passing. The political, business, religious and cultural leadership of a nation that no longer exists as a separate soverign nation is slowly fading away as age and death take their inevitable toll and with them passes a unique generation. Which part of Canada today has a community that could rationally and openly debate giving up their political independence for the good of future generations and then, once that decision was made, take hold the task of managing that change?

Joe Smallwood and Major Peter Cashin have been dead for years. John Crosbie is an old man who has lived several lives since mourning the death of Newfoundland. The list goes on.

There is a writer in Newfoundland who has taken on the peculiar task of ensuring that that generation is not forgotten. JM Sullivan, who also writes plays and edits the Newfoundland Quarterly, has cast herself as the Recording Angel of a fading nation. She has for over a decade written a remarkable series of obituaries for the Globe and Mail recounting the lives and passings of a long list of Newfoundlanders from that contingent of Newfoundlanders. There has been no hard and fast rule about whom she has written these notes -- some have been famous while others have been obscure. For example, her most recent obituary was that of Laurie Cashin, the son of the famous Major Peter Cashin (the anti-Joseph Smallwood -- conservative leader of the anti-Confederates) and brother of the famous Richard Cashin (left wing union hell raiser), a man actually little known to most Newfoundlanders but whose life is worthy of note.

This series of obituaries is remarkable for two reasons. First, I think collected over time it will serve as one of the better histories of Newfoundland and its transition from independence to Canadian province. That story is still too raw in Newfoundland for clear headed writing as people still quarrell over whether the vote was rigged, whether Newfoundland was sold out, if the province would be better off as a state or whether Iceland shows what Newfoundland could have been. People still come to blows in bars in St. John's over these issues and family dinners end in acrimony. By telling the stories of the characters who lived through these events as a marker of their passing Ms. Sullivan avoids the debate -- she plays on the fact that while the issues are divisive there is a strong love in Newfoundland for all these characters regardless of which cause they championed.

The second remarkable aspect of these obituaries is the degree to which over the years Ms. Sullivan has captured the personal interests of many of these people and found stories which make them seem real. The story of Laurie Cashin could be a recitation of polictical and civic achievement but what makes his story come to life is the vignette of his diagnosing is one year child's deafness -- something which defined Laurie's later interests -- by means of pistol shot. Capturing and recounting these details distinguishes these obituaries from falling into being either death notices or political screeds.

The Weekend of Doing Nothing

Growing up in Newfoundland, the Victoria Day long weekend had significance beyond that found elsewhere in southern Canada. While here in Victoria the May long weekend is a mere blip in the progression of spring, in Newfoundland it marks the first serious hope that spring has truly arrived. It would not be a brave soul who planed anything before Old Queen Victoria’s day – it would be a madman determined to replant everything, as that would be his or her inevitable fate given the dismal weather of early May in Newfoundland.

But still, even here in the relatively tropical paradise of Victoria this long weekend carries a special significance. Unlike the fall and winter holidays (Thanksgiving, Christmas, Easter), which are all associated in one way or another with events that demand activity (usually cooking), Victoria Day demands nothing. At most there will be a parade which one can go to, or not. There is no religious significance and consequent religious ceremony and argument attached to the day of rest. There is no soul alive who feels strongly about Queen Victoria, who is now a fusty image of a long past empire. It is a weekend to do nothing and nature kindly provides the weather in which that can be done.

As my family and friends know, I am seldom one inclined to do nothing – although I do appreciate the idea more than most of them think. Through habit and a bit of bad planning, my personal and professional life is best described as ‘busy.’ This weekend though I dedicate to nothingness and being – the days are devoid of plan and even such business as may intrude I will direct to the project of doing nothing.

If Geoffrey Stevens' idea today in the Globe of dropping the Victoria Day name in favour of some other name is ever adopted, then I suggest it be the GK Chesterton Long Weekend – that famous old archchristian (we would have differed on that point) put it well:

I think the name of leisure has come to cover three totally different things. The first is being allowed to do something. The second is being allowed to do anything. And the third (and perhaps most rare and precious) is being allowed to do nothing. Of the first we have undoubtedly a vast and a very probably a most profitable increase in recent social arrangements. Undoubtedly there is much more elaborate equipment and opportunity for golfers to play golf, for bridge-players to play bridge, for jazzers to jazz, or for motorists to motor. But those who find themselves in the world where these recreations are provided will find that the modern world is not really a universal provider. He will find it made more and more easy to get some things and impossible to get others. [] The second sort of leisure is certainly not increased, and is on the whole lessened. The sense of having a certain material in hand which a man may mould into _any_ form he chooses, this a sort of pleasure now almost confined to artists. As for the third form of leisure, the most precious, the most consoling, the most pure and holy, the noble habit of doing nothing at all--that is being neglected in a degree which seems to me to threaten the degeneration of the whole race. It is because artists do not practice, patrons do not patronise, crowds do not assemble to worship reverently the great work of Doing Nothing, that the world has lost its philosophy and even failed to create a new religion. 7/23/1927

Yes, Sir John A Macdonald must have a holiday – it is a national shame that we do not commemorate him and the other Prime Ministers, but let’s make their day in February, when we could all use a break and enjoy a drink of the hard stuff in honour of old Sir John A. Let’s keep our May break to pointlessly doing nothing.

A Victory for Environmental Protection

Imperial Oil suffered a set back yesterday when Mr. Justice Campbell of the Federal Court ruled that a key permit needed to build Imperial's Kearl facility was a nullity and that therefore a new permit would be needed and work could not -- lawfully -- proceed. This decision arises out of an earlier ruling that the environmental assessment that had been carried out was flawed and had to be re-done.

This second decision is actually likely more important that the first decision given what it says both about the risks companies run in not taking court cases seriously and also about how our environmental assessment process actually matters.

On the first point, Imperial Oil knew that the Pembina Institute was challenging the environmental assessment in Federal Court and was raising serious questions about its validity. Depsite this Imperial started devoting resources to the Kearl Project, largely banking on the fact that no court would actually making a ruling that could affect a major project or perhaps even banking on the idea that the work would be done before case was decided. This is a cynical ploy often followed by companies banking on the fact that the wheels of justice grind conservatively and slowly.

When the Pembina Institute won its case Imperial was dismayed when it received a latter from the Department of Fisheries and Oceans advising it that the authorizations that it had received on the basis of the flawed assesment were 'nullities' -- that is they were gone and worthless. Imperial was so upset that the Federal Government actually had the unmitigated gall to give effect to a court ruling that it then sued the Federal Government saying, in essessnce that (1) the Environmental Assessment really did not matter once the permit was granted and (2) that the earlier court decision was, in effect, trivia.

Imperial's first argument actually had some danger of suceeding given the complicated two-step that is Canada's approach to environmental assessent. Large projects often need dozens or in some cases hundreds of Federal permits and authorizations, sometimes given by numerous different departments. Rather than requiring each department to do its own assessment the Canadian Environmental Assessment Act essentially requires one assessment which then results in a recommendation to the Minister or agency that actually makes the decision. Imperial's argument was that under this system even if the assessment was flawed or done unlawfully since it was not the 'decision' the decision could stand.

Justice Campbell tersely dismissed both arguments. He held that the failure of the environmental assessment process meant that there was no ability for the Ministers or agencies to make the necessary decisions and therefore there was no authorization -- no assessment means no decision means no permit. The fact that Imperial had bulled ahead without regard for the ongoing court proceedings only meant that it had chosen to roll the dice and, well, lost.

What is crucial about this decision is that it affirms the principle that environmental assessment is not some 'add-on' or decoration to the process of turning Alberta into some vast open pit tar pit -- it is a vital part of government decision making and planning and without doing it right governments and companies cannot act.

Revel

I found myself on my own in Vancouver for my birthday and on a friend's recommendation decided to try a new restaurant, Revel.

Revel is part of the new scene of Vancouver restaurants that is sprouting up in Gastown and some of the other shady areas around there. As the Woodward re-development carries on apace it will not be long before the shadiness of this area will be gone and Revel will have situated itself nicely in the vicinity of what is bound to be an area filled with young, adventurous sorts with money -- an endless blessing for any restaurant.

Revel is a 'small plates' type of restaurant. This is a type of dining that fills me with a certain degree of apprehension. Small plates have become something of a new trend these days and as with many trends there is some real danger that the focus can end up on the trend rather than the food. This is particularly risky in the context of small plates since in order for the idea of small plates to work the emphasis has to be all about the food -- there is little in the way of showmanship in the presentation of small plates and one cannot look at a plate and say 'well two out of three things on that plate are good.' Either the plate works or it does not.

Happily Revel has pulled off the trick -- the room is cool (I sat at a theoretically terrible table because I wanted to be able to see the main floor and had a good time without being run over by the wait staff) but offers different environments. The main floor has more of a bar feeling while there is a second floor that can serve those wanting to focus on more intimate dining. The food was excellent. I had a beef tenderloin with a delicious jus and which was done to perfection. A plate of asparagus was served with a spicy (but not overwhelming) flavouring and with obvious care for the asparagus itself -- it was not limp but prepared and cooked so as to leave no woodiness. Finally there was an interesting fried rice dish which did not evoke thoughts of chicken balls with red sauce.

The atmosphere was great -- for a place that had only been open for six days there was a steady stream of customers, many of whom where clearly not there on their first business. The owners and staff were friendly and attentive without besetting the table. It made for a good birthday evening in Vancouver.

All the Editors Out There Take a Bow

A quick thank you to the reader who is an editor (really, she really is an editor) who pointed out that Flannagan actually has only two n's rather than three.

I think she decided though that the run-on sentences and raving lunancy did not bear commenting upon.

Income Distribution Despair in Canada

A small -- or perhaps large -- furor broke out in Canada with the publication of Statistics Canada's report on wages in Canada. The headlines featured the fact that over the last twenty-five years the median income has not grown or in the case of some provinces (ie British Columbia) actually slipped. This has produced hand-wringing all around on issues such as the growth of wage inequality but for me it has shown the shallowness of the media.

First, on the right we get to see Canada's own right wing bootlicker Terrence Corcoran (over at the National Boast -- er I mean Post) demonstrate how he will ignore any sense of practical reality or even basic ideas like "let's not compare apples to oranges" in order to avoid addressing the idea that even one sorry person has suffered as a result of the last twenty-five years of conservative policy experimentation (yes, even the Liberals were largely conservatives in this time frame). Terry the Hun suggests that we have it all wrong getting worried about the stagnation of median personal income but instead we should be jumping for joy over the increase in family income.

Terry suggests that this is the real measure of personal happiness since we all live in families and that is where we share our wealth. The stupidity of this idea is obvious to anyone who actually lives in one of those modern families -- preferably one with small kids -- and asks "why is it that I have more money but it seems harder than it was for my parents at home." Well the answer sticks out immediately -- it is because instead of one parent being largely at home managing the tasks of the house and the growth of the children both parents are now working. This of course leads to a very different family dynamic than in the past and a whole different range of costs, including substantial daycare bills and bills for assorted summer camps.

Terry is trying to dig himself out of a little conservative hole by comparing a cohort of one or perhaps one and half income earners to a world of two income earners and saying -- "see, you are 11% better off than you were" but ignoring the fact that they are working twice as hard to get there.


On this disappointing media side in all of my reading of the coverage I saw no-one really try to delve into the numbers to make it clear what the issues really were or to make any effort to explain what these numbers really were beyond the notion of "maybe this, maybe that". I suspect largely this is due to the fact that few journalists have a sweet clue about statistics. Allow me a chance to give two illustrations on how this report may mean quite different things.

First, it is useful to remember that the reports in the paper focused on median wage -- that is the number where half the wages are below that number. This is not the mean (average) or the mode (most typical) wage. The significance of this number depends massively on a number of different things, starting with, for example, what is being measured.

In reading the press reports it is not clear to me if the reports in question examine wages being earner or the earnings of the whole population whether employed or not. The difference this can make is huge as can be seen by this example -- take the mythical province of Behind Columbia in 1980 and suppose it had one person employed earning 500,001 and another earning $499,999 and 1000 unemployed people earning nothing. The median in 1980 of wager-earners would be somewhere around $500,000 per year. The median for the population as a whole would be somewhere around $0. If in 2005 the wager-earners were now making $499,999, $500,001 and 498 others were now employed in new jobs making $50,000 and 502 were making $30,0000 the median wage for wage-earners would now be somewhere around $40,000 -- a drop of $460,000 but surely no-one would argue that this shows that there has been a decline in the well-being of all.

While this example uses contrived numbers it raises a not unrealistic question: to what extent is the change in median wage due to the growth in employment and participation in the workforce? A large part of the right vs. left debate over the last twenty-eight years (since the election of Ronald Reagan) has been about whether it is better to have broad participation in the economy at potentially lower wages as opposed to securing the earnings of higher income wage earners and protecting the gains they made through the New Deal and related initiatives. Is it too much to expect that the national media -- particularly the Globe and Mail -- will dive in and try to dig out these answers.

The distribution beyond the median is also important. Taking Backwards Columbia as our example again, if we 500 people making $100,001 and 500 people making 99,999 then the median income would be $100,000. If in 2005 the numbers become $150,000 and 50,000 the median would stay the same (there are a few statistical fudges going on there but the point is basically right) but income has become more unequal. By contrast if the numbers were reversed, then a standstill in the median would match with an increase in wage equality. Without really delving into the numbers though and actually showing the distribution merely reporting the median with some vague commentary about possibilities tells us nothing.

Oh well, I guess I will just have to read the report myself -- of course then the headlines should have been kept to "Stats Can Publishes Report"

The Conservatives and Carbon Chaos

Neil Reynolds has a column in the Globe and Mail business section today (April 30, 2008) bemoaning the multiplicity of directions that the provinces are headed in dealing with climate change motivated carbon-control measures. He observes that the measures are inconsistent; are full of holes designed to favour pet industries; have the potential for corruption; and are generally headed toward creating chaos across the country. What he advocates in the end is sensible (although I am not sure enough) but the current Federal government's ideology around a number of matters will stand in the way of it ever happening. Here is where Reynolds lands

Prof. Nordhaus would jettison cap-and-trade (which is “conducive to corruption”). He would jettison Kyoto. He would jettison coercive regulation – including fuel efficiency standards for cars. He would start with a very modest but universal tax on all fossil fuels and increase it gradually over coming decades.

You can't afford financial error in the beginning, Prof. Nordhaus warns, because time multiplies small errors into catastrophic consequences. People, he says, need to understand the dynamic of future dollar discounting: “The funds used to purchase Manhattan Island for $28 in 1626, when invested at a 4-per-cent real interest rate, give you the value of all the land in Manhattan today.” Time turns a few dollars, in other words, into trillions of dollars. And the maximum investment we need to reduce greenhouse gas emissions, he says, is $3-trillion – measured in 2100 future discounted dollars.

For economic efficiency, Prof. Nordhaus would exempt no one from a modest carbon tax – not farmers, not the aged, not industry. “If you exempt half of the economy because of politics,” he says in his illuminating 2007 report, The Challenge of Global Warming, “then the cost of obtaining your objective rises by 250 per cent.”

Prof. Nordhaus quotes Leonardo da Vinci on the design of complex solutions: “Simplicity is the highest form of sophistication.” Keep it simple, he says. Choose the best single policy option you have – “and implement it slowly, steadily, predictably and boringly.”

The reality is that the Federal government could do this at any time except that (1) the Federal government does not believe in climate change (except as a political expedient) (2) the Federal government does not believe in bringing order to Canada if it means interfering with the provinces and (3) the Federal government does not believe in taxes. Of course, the ever increasing price of oil and natural gas may be its own tax in the end and end up doing what a sensible climate change policy should do.

Sniffing Dogs

The Supreme Court of Canada rendered two related and important decisions on the issue of how evidence obtained through the use of sniffer dogs is to be treated. One case dealt with a situation where a school invited the police into sniff through the school and on sniffing an unattended backpack found drugs. In the other case the police targeted a man who they perceived as acting in a shifty manner at a bus station and had his bags sniffed, again uncovering a stash of drugs.

In the result the court decided that the searches were illegal under the Charter of Rights and Freedoms and excluded the evidence. What is more interesting about the case, though, is how fractured the court was on how to analyze the situations in front of them. The judges disagreed with each other on almost every issue and it is hard to discern any common thread amongst the judges who decided to exclude the evidence. The judges could not agree on whether or the 'sniff' was a search at all; how much suspicion was needed to justify a 'sniff' if it was a search; and then whether the admission of evidence brought the administration of justice into disrepute.

This decision shows that we are now truly at the end of the Dickson-Lamer Court era. That era was characterized by a strong interest in the Charter as a tool to re-inforce certain common law traditions against arbitrary exercises of state power. The debates in that court largely focused not on the content of the right in search and seizure cases but on how best to address police wrong-doing (when would the administration of justice be brought into disrepute). In these cases we clearly see a factionalized Court struggling to find a way to give the police more latitude and to not even cast a shadow upon their behaviour while still trying uphold the common law.

Given this court's propensity to overturn or significantly modify early rulings I think we are in for some rough weather ahead.

Canada's Whisky Set-Back

There has been a long running fight in the Canadian court systems over the ability of non-terroir specific producers to use names like 'Champagne' or 'Parma' or prosciutto in the context of various luxury foods (bubbles and pigs respectively). The Glenora Distillery, a Cape Breton manufacturer of a single malt whisky product has become latest combatant in this fight and it suffered a significant set-back recently. Glenora has been for the last few year distilling its own 'scotch' -- that is a distilled spirit made from a single type of malt and marketing it to great applause under the name of 'Glen Breton'. When it went to register this name as a trademark however the gauntlet was thrown down by the Scotch Whisky Association -- the proud defender of the various Glen's and Dahl's and Taliskers etc that distill their own spirituous concoction in the highlands, lowlands and islands of Scotland. Glenora won the first round of the fight and the Trademark Office registered their trademark.

Sadly Glenora lost the second round -- an appeal in the Federal Court -- as Mr. Justice Harrington ruled that the name 'Glen Breton' undoubtedly caused confusion in the minds of the ordinary consumer (who after all would typically be a bit off their game after their first drink anyway and reading in a darkened bar at the best of times) with the noble products of Robbie Burns' homeland. As such he held that poor Glenora could not be allowed to register the Glen Breton name and sent them back to the drawing the board. The judgment is worth a read if nothing more than for its amusing history of various 'Glen' thises or 'Glen' thats that have been sold out of places other than the Highlands and attached to things other than unsurpassed scotch single malts (I for one wonder if it is possible to find a bottle of Glenogopogo anywhere in the world today).

Justice Harrington did make the finally consoling comment though for the Scots of Cape Breton and, indeed, of all of Canada

To put matters into perspective, Scotland’s greatest export to this country was its people, not its whisky. Cape Bretoners, or “Capers”, are rightly proud of their heritage and are entitled to evoke it. However, it is too late to use the word “glen”.

I suspect that despite these words the kilts are being tightened, the cabers tossed, the pipes aired out for the next round of battle -- on to the Federal Court of Appeal, dear clansmen! Remember Sir John A!

Robert Baltovich and a Public Inquiry

Now that Robert Blatovich has been aquitted the question arises as to whether or not there should be a public inquiry. Mr. Blatovich wants an inquiry into why he has been wrongfully convicted; Ms. Bain's family undoubtedly wants another go at him. Neither is a good reason to have an inquiry.

As Mr. Baltovich has been acquitted there is no real reason to have another go at him in a public inquiry -- if there is a civil case to be brought the family can bring it. Given the passage of time and the expiry of limitation periods such a civil case is unlikely to go anywhere but the same reasons for imposing such limitation periods gives as sense of the futility of a public inquiry -- memories will be frail; evidence lost; witnesses compromised.

As for the reasons for Mr. Baltovich's wrongful conviction -- well we have a thorough Court of Appeal decision which has dealt with this and looked at all aspects of the conduct of what happened before. Most critically it has directly addressed the inappropriate conduct of the trial judge. Here is what the Court's own synopsis says on the matter:

The Court concluded that the trial judge’s charge to the jury lacked fairness and balance and that it compromised Baltovich’s right to a fair trial. Read as whole, the jury charge unduly promoted the Crown’s case and denigrated the defence’s case. The Court cited examples of some of the trial judge’s improper rhetorical questions as well as his directions regarding the issues of suicide, motive, and after-the-fact conduct as representative of the unfairness and lack of balance in the jury charge.

Our justice system admits of the possibility of error -- that is why we have appeal courts and methods for re-opening cases. In this case it worked -- slowly -- but it worked. Let this case and the personal vendettas of its cast of characters rest in peace.

Tom Flanagan: Polygamists and the Case Against Religion

Tom Flanagan is a professor at a major Canadian University, a frequent flyer expert witness against aboriginal people in court cases and an advisor to the present Prime Minister. For all of that though he shows a shallow grasp of logic and little insight into the implications of his arguments. In today's (April 24, 2008) Globe and Mail, Professor Flanagan wades back into the polygamy debate with an opinion piece on why polygamy should continue to be criminalized and polygamists actively prosecuted. What is mysterious about his column is that as one of the standard right-wing cadre here in Canada he fails to see how his arguments are fundamentally anti-religious freedom and pro-state intervention in the personal lives of citizens. They also, incidentally, demonstrate an outstanding lack of insight into basic biology.

Professor Flanagan's arguments are twofold: (1) polygamy re-inforces patriarchal, ant-democratic structures and are adverse to the equal treatment of women and that (2) evolution has conditioned us to be polygamist and therefore we have to fight such behaviour with cultural structures. As it happens these are both arguments which have merit but have much broader application than I think Professor Flanagan would be willing to entertain.

On the first argument Professor Flanagan makes the accurate observation that most (traditional) polygamist communities are run by a small male elite that controls resources, oppresses women and devalues and discourages education in favour of skills like being "cutting timber or framing and roofing houses."

But of course, the same observation could be made to varying degrees with respect to the Roman Catholic Church, High Anglicans, the Mennonites, Hutterites, the Seventh Day Adventists and any evangelical branch of Christianity. These groups generally place husbands over wives; men over women in places of church authority and try to distort or control the education of their children (to perpetuate these values, to exclude consideration of inconvenient science (Darwin and the Big Band come on down)). Indeed were it not for the modern reform of these intuitions and their control over society the description given by Professor Flanagan of modern polygamist communities would be a fairly good description of the western world under Christendom into the early 20th Century. What Professor Flanagan argues against is not polygamy, per se,but instead patriarchy.

On the evolution side he observes that the fact that in our species there is a slight tendency towards "sexual dimorphism" (that is difference in size strength etc between men and women) indicates that we are evolutionarily designed for polygamy. That is, evolution has selected in such a way that that we are designed to have larger males who dominate over a harem of women and are able to exclude the weakings who are out there. Now there seems to be certain elements of junk science to this statement (for instance is the difference in size between men and women 'hardwired' or does it disappear if women reproduce later in life and are given equal access to food). Also explaining any one trait by linking it to the effects on natural selection is notoriously difficult given the way that natural selections acts in response to the total environment.

However, even if (scientifically) true and proven it is not clear how this observation helps Professor Flanagan's argument rather than hurts it, unless Professor Flannagan is willing to go all the way and concede that one of the roles of society and government is to shape people contrary to their individual and naturally induced inclinations. The essence of natural selection is that it is a process that favours traits that are better suited to the environment and survival than those that are not -- therefore as a 'biological' argument this observation would point toward saying that polygamy is to be preferred.

In reality what actually appears to be underneath Professor Flanagan's arguments is a strong sense of xenophobia for here is what he says at the end of his article:

The small cult of fundamentalist Mormons will not bring down the social order by itself, but Canada is now accepting substantial immigration from Africa and the Middle East, where polygamy is widely practised. If we don't enforce our existing laws against polygamy, we will jeopardize the fundamental institution of our free society and constitutional government.

The profound assumptions and stereotypes about others and the nature of migration that are built into this are breathtaking. First there is the assumption about the wide practice of polygamy in Africa and the Middle East -- while there is some practice of polygamy in fact by its very nature it is unlikely that it is that widely practiced. Given that demographically there are slightly more men than women at birth and until old age the balance is roughly equal (+/- say 5%) there can only be a limited number of men practising polygamy. As Professor Flanagan observes, polygamy only works by driving surplus men out of the system so that a local artificial imbalance is created between the number of men and the number of women. That is, by its very nature, in a polygamist society most men cannot be polygamists.

Second, there is an assumption about who would be migrating -- I suggest a strong argument can be made that the people who are likely to be migrating from polygamist environments are those who have either been marginalized by the society or have rejected the society themselves. While undoubtedly there will be those arriving with the view that a new world gives them a chance to be on top (and establish their own polygamist milieu) here over all the process of immigration should favour those who reasons to want to move away from polygamy than those who want to continue the practice.

Professor Flanagan is right though that ultimately it is the role of our laws to signal our values and to reinforce the values we want to encourage. This means though that there is a role -- contrary to what most of the right wing would argue --for the state to define preferred values and so to shape society. Professor Flanagan is also right in advocating move away from patriarchy -- which marginalizes half of humanity -- but this argument should be applied first and foremost to the laws which are having the greatest effect on our society. Professor Flanagan's arguments are therefore to my mind arguments against all laws that reinforce inequality between men and women and entrench outdated religious notions of the proper ordering of society. The next time you hear a call from the right wingers for the imposition of abortion bans; support for publicly funded religious education; the repeal of laws designed to promote equality (ie the Human Rights Codes and associated tribunals)-- just remember Professor Flanagan.

Back at It Soon ....