Wednesday, April 30, 2008

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.

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Tuesday, April 29, 2008

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.
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Friday, April 25, 2008

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!

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Thursday, April 24, 2008

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.

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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.

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