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"