Thursday, November 27, 2008

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.

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Thursday, November 20, 2008

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.
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Wednesday, November 19, 2008

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.

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Tuesday, November 18, 2008

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.

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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 ....

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