Thursday, December 31, 2009

Preston Manning's Odd Concept of Honesty

The Globe and Mail regularly publishes commentary from Preston Manning, whose role in society is billed at as "president and CEO of the Manning Centre for Building Democracy." This billing, of course, is true enough, but completely deceptive. The reason Mr. Manning's drivel is regularly published is because his past role as founder and leader of the Reform Party. Or, even more accurately, because of his role as midwife to Canada's modern right wing leadership, including his proudest delivery of all -- the Right Honorable Stephen Harper. While this type of re-packaging is fair enough (politicians of all stripes do it) surely the Globe and Mail should at least give some indication for the benefit of younger readers or readers new to Canada that Preston is not merely some altruistic guardian and promoter of democracy but is a former politician who is now pushing his right-wing anti-secular agenda under misleading title (have a look at the list of patrons and directors of the Manning Centre if you would like some reassurance of this characterization of this organization).

Normally it is easy enough to pass over Preston's opinions -- there are not enough hours in the day to read every right wing screed that makes it into the newspapers -- but a recent column extolling Stephen Harper's honesty was eye catching (if for no other reason than the cartoon of Steve wearing two halos). On reading it, it turned out to be a tribute to the Prime Minister's honesty in (1) speaking the truth to the Chinese about human rights while still promoting trade and (2) not advocating for unrealistic targets at Copenhagen but instead making it clear that Canada would only follow the United States. This analysis is shocking and cannot go without comment because of what it truly says about Preston Manning and his centre.

The first example of the Prime Minister's honesty that is lauded by Mr. Manning is openly mispackaged. The Prime Minister certainly did call out China for its human rights abuses in the past but in recent months has pulled back his horns as realized that this type of behavior was inconsistent with promoting trade with Canada. Now the Prime Minister does what every other Canadian Prime Minister since Pierre Trudeau has done -- mutter something about human rights under his breath while busily shaking and hands and hosing banquets to promote trade. Real honesty on the human rights front would have been speaking to a friend -- say George W. Bush -- about his human rights flaws (say that little due process free prison in Cuba) or supporting the promotion of human rights at home (say for example by sending a letter politely asking for Omar Khadr's return). Instead, all we see hear is the Prime Minister criticizing those who he politically disagrees with until he realizes that it is politically inconvenient.

The Copenhagen example is doubly ludicrous. I will first pass over the global warming debate per se but instead will comment on the approach advocated by Mr. Manning. Mr. Manning's argument is that it is honest to advocate for weak standards and commitments because that is all that we can do in the face of what the United States is doing. More generally he is saying that all Canadians will do is slightly limit their emmissions so it would be dishonest to bring forward anything more aggressive (this is true enough and is an excellent argument for doing with Canada's drug laws as we have no intention of seriously limiting the consumption of intoxicants across society). Of course, this ignores the idea that an event such as Copenhagen brings people together so that new positions can be forged so that the problem of not getting out of step with trading partners can be avoided. Thus it is a chance to advocate stronger positions leaving open the possibility of falling back if no new consensus emerges. But of course this is not Mr. Harper's real goal and it is here that Mr. Harper's lack of honesty shows through.

The reality is that Mr. Harper does not believe in human caused global warming and does not believe anything can or should be done about it. If Mr. Harper genuinely believed in human caused global warming then honesty would dictate developing binding standards and pushing as hard as possible to do something about it. Anything else would be stupid and inhumane when the future cost of global warming (whether human caused or not) is taken into account. Mr. Harper however clearly does not believe in human caused global warming and sees the expenditure of effort to avert the continued discharge of greenhouse gases in large quantities as a waste of economic resources and an example of bowing at the altar of left-wing voodoo science.

But Mr. Harper is politically astute enough to know that he cannot say this. The reality -- he knows -- is that he will loose large chunks of votes in the centre if he were to publicly come out and say "there is no such thing as human caused global warming and we should not be wasting our time and economic resources fighting it." Such a statement would be honest but would relegate the Prime Minister back to Reform Party territory in terms of votes. The reality is that voters in Toronto pump out tonnes of greenhouse gases and are not particularly willing to bear the costs of reducing those emissions, but at least they accept it is a problem even if they are afraid of the solutions. To be faced with a blunt statement of the Conservative Party's true belief would only serve to remind those voters that Stephen Harper has a cabinet minister who is rumoured to believe that men and dinosaurs walked together.

What Preston Manning really seems to admire is Mr. Harper's ability to hold true right-wing beliefs buy then tell the lies necessary to package them -- something Mr. Manning was never able to do effectively in his days as an elected politician. Mr. Manning's centre gives him a forum to advocate for his political views -- not for democracy generally, but right-wing anti-secualr democracy. He is willing to rebottle hypocrisy as honesty -- as most policticians do -- as a pasrt of this quest. What is pathetic though is the fact that the Globe and Mail is willing to give him a soapbox to do it from. Isn't the National Post good enough for that?

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Farewell Christmas Stuff

yesterday we put away the bulbs, cast out the Christmas tree and packed away the scented candles. Today I go through the fridge and cupboards and cast out the various sweet temptations that are arrayed everywhere. It is all part of the wheezing and indigestion begone program. All of which brings to mind Ambrose Bierce's definition of the diaphram:

DIAPHRAGM, n. A muscular partition separating disorders of the chest from disorders of the bowels.

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Friday, September 25, 2009

Democratic Reform

There were two articles in the Globe and Mail today bearing on the issue of democratic reform. The first of these (a cover story no less) speaks to legislation being drafted to address long delayed changes to the distribution of seats in the House of Commons. This re-allocation of seats will result in a move toward more even representation across Canada (that is, a regime which has something closer to a one person-one vote approach)and will start to redress the imbalance in favour of rural voters over urban and sub-urban voters that has been built into our Parliament for decades.

The second article deals with the depressing reality of the ever declining percentage of the electorate that turns out to vote. The writer links this to an absence of policies and debates that matter to many of the voters but fails to draw the link to the earlier issue -- the devaluation of urban and suburban votes. The reality of our system has been that we have had a built in incentive to weight our debates disproportionately toward matters of interest to rural voters and voters in Quebec because these voters carried disproportionately greater weight in every election. Not surprisingly these issues are of not such great concern to many of the residents of the cities and new suburbs who are not farmers, are less white, are younger and who have radically different concerns rural Canadians.

The growth of influence of the cities and suburbs will hopefully start the process of engaging these voters in our electoral system as they actually have a chance now of seeing governments pay attention to their issues.

Of course, we still have to face the other reality that ever since the early 1980's we have lived in a political climate which has denied the importance of government. One the right the mantra has constantly been "government is bad". For many progressive people, the courts have been viewed as more effective forum in which to press for social change or to shore-up gains made in the past. All of this has engendered a culture which by its very nature devalues the right to vote by devaluing what is being voted for. Perhaps making our institutions more democratic will start to reverse this trend as well.

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Thursday, September 24, 2009

Polygamy Case Ends Not With a Bang ....

The British Columbia Supreme Court brought an end to the polygamy charges against the residents of Bountiful yesterday without a trial. As a result the courts have avoided dealing with the merits of the question of whether or not Canada's polygamy laws can withstand the Charter of Rights and Freedoms. The decision (which can be found here) instead focuses on the question of whether or not the Attorney General can effectively override the final decision of a special prosecutor not to prosecute someone by appointing a new special prosecutor who will. Not surprisingly the Court was not too happy with this idea. It is too easy to say the Attorney General can get around an inconvenient final decision by simply appointing a new decision maker. As a result, the Court and quashed the prosecution on the basis that this was not permitted under the statute allowing for special prosecutors.

This decision is a strong defence of the general purpose of the special prosecutor laws but it does raise a number of difficult questions and highlights the caution that should be taken in appointing a special prosecutor. Special prosecutors are classically appropriate in situations where a crime may have been committed where the government cannot be seen as making the decision to prosecute or not. For example, the Attorney General would be put in a hopeless position if, for example, evidence of political corruption by a senior member of the cabinet were found. A decision not prosecute would detract from the public's confidence in the legal system, yet a decision to prosecute raises the question of whether or not the accused was being put through the legal mill for appearances sake. The appointment of a special prosecutor outside the ranks of the civil service brings an element of independence to this process.

The question of whether or not to prosecute the alleged polygamists at Bountiful is a different sort of question altogether. Here the questions revolve not around the independence of the prosecutor but the correct weighing of the various factors that go into deciding whether or not to prosecute. The earlier decisions not to prosecute largely turned on the question of whether or not Canada's polygamy laws would withstand Charter scrutiny. The special prosecutors (together with many other senior lawyers) at the time thought not, but no-one can suppose this is anything other than a debatable question. The Charter is an evolving beast and is not insensitive to changing social mores and concerns -- particularly in the balancing act that the Court engages in when deciding how s. 1 (the reasonable limits provision) applies. Also societal views with respect to polygamy -- which are intimately tied up with concerns around the protection of equality and the defence of underage brides -- are evolving and the balance of legal, social and political concerns that go into a decision to prosecute or not can change.

From a social perspective, the decision of the Court leaves Bountiful in an odd position. Has this decision effectively immunized the residents of Bountiful from ever being prosecuted for polygamy -- even if the polygamy laws are ultimately upheld? Put more starkly, are the women of Bountiful now forever deprived of the protection that may flow from Canada's polygamy law because of the decision of a special prosecutor in the past? More generally, have all of us as Canadians been deprived of what may be the best opportunity to test the legality of the polygamy laws in a context where the modern concerns about polygamy actually seem to arise?

These problems flow not from the Supreme Court's judgement -- which is likely correct -- but from the decision to appoint special prosecutors in the first place. The special prosecutor law was not intended as a "get out of jail free card" for occasions when the Attorney General wants to avoid a hard decision. The Attorney General is there to make hard decisions about when a prosecution is merited. There is a professional corps of lawyers who are hired to make precisely this kind of decision and do so all the time. Outside advice can be obtained and considered but generally it should be the Attorney General that makes the decision. The special prosecutor should not become a means of dodging such decisions and, as this case shows, such a passing of the buck to someone outside of the elected and accountable system of government can undermine the public interest in seeing legal issues brought forward and resolved.

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Saturday, August 8, 2009

The Assisted Suicide Debate Continues

In its very last judgment the House of Lords again wrestled with the question of assisted suicide. The Court had earlier determined (in common with Canada) that the bar on assisted suicide was lawful but now had to deal with an ancillary question -- that is whether or not the Director of Public Prosecutions (the head of the English prosecution service) had to give some guidance as to when it would exercise its discretion to allow a prosecution for assisted suicide.

The case concerned a woman suffering from a progressive disease which in time would render her life unbearable. When that time comes she wants to be taken to Switzerland where assisted suicide is lawful to end her own suffering. Her husband is willing to take her. There is a nice legal question as to whether taking somebody to another country where you will assist them commit suicide is even a crime, but the woman and her husband don't want to chance that. Instead they wanted an answer to the question, "is the DPP going to prosecute the husband at all?" At the very least they wanted to know what criteria the Director proposes to apply in making that decision.

The House of Lords, in a thoughtful judgment, ordered that the Director issue a policy outlining the criteria that would be considered in deciding whether or not to prosecute a person for assiting a suicide. The discussion covers a great deal of the assisted suicide debate (including the Rodriguez case) and highlights the continued difficulty that this whole topic raises. In a macabre moment Lord Phillips of Worth Matravers cites an old English decision from the early 1800's (R. v. Burgess) on the problems posed by the crime of attempting suicide:

“We are all of opinion that the jurisdiction of the Quarter Sessions is not taken away by the 24 & 25 Vict. c. 100, and that attempting to commit suicide is not attempting to commit murder within that statute. If it were, it would follow that any one attempting to commit suicide by wounding himself must be indicted for the offence of wounding with intent to commit murder, which until very recently was punishable with death.”

This question will sooner or later have to be dealt with by Parliament (both here and in the United Kingdom) but for now at least the House of Lords has tempered discretion with reason in this debate.

Perhaps this was not a bad gesture for the Lords own last act.

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A Revival and an End

After an absence of several months I come back to my blog -- and so a revival. Now to comment on an end.

For several hundred years the House of Lords has stood (in the guise of its Judicial
Committee) as the highest court in the United Kingdom. Its alter ego, the Judicial Committee of the Privy Council equally stood as the de facto highest court in the British Empire and Commonwealth (although slowly but surely its reach has faded away in favour of various domestic high courts).

Despite the diminishment of its formal reach over the years, the House of Lords practically had pride of place and a form of precedence throughout the common law world as the highest court. The United States Supreme Court has always been parochial in its outlook and in its technical and arcane language (and debates) has never fired the judicial imagination of other countries in the way that the House of Lords has. None of the domestic highest courts throughout the remains of the British Empire has ever come close to the level of respect given the House of Lords.

In recent years this central place in the common law has faded. The legal system of the United Kingdom (like all legal systems) has moved away from its focus on the common law. It is now much more preoccupied with the interpretation of intricate British statutes or increasingly focused on the niceties of European Union law. The judgments (or speeches as they are more properly called) of the Law Lords that are read by law students in Canada are older now. But still the recent judgments of the House of Lords (and particularly Lord Bingham of Cornhill -- likely the greatest jurist of this generation in the English speaking world) on the topics of the war against terror and the rights of persons facing persecution are striking their clarity of thought, speech and common sense.

On July 30, 2009, the House of Lords carried out its last judicial function. It rendered a number of judgments (one of which concerned a long delayed claim for royalties for the song "A Whiter Shade of Pale" and another concerning assisted suicide). The the Lords made few quick remarks and then adjourned for the last time. In rather elegant, form the last substantive remarks of Lord Hope of Craighead concerned the inscription beneath the clock in the House of Lords chamber (which in Latin says -- Everything has its time). It can be seen at a convenient recording maintained at the House of Lords website (skip ahead a bit for the sound).

On October 1, 2009, the new Supreme Court of the United Kingdom will become the highest court in the United Kingdom. While the composition of this Court will remain the same as the current judicial committee (sadly Lord Bingham of Cornhill has retired and will not sit as the first President), I doubt it will ever have the mystique or authority outside of the United Kingdom that the House of Lords had. While this perhaps is an inevitable evolution in death of the Empire and the increased autonomy of its former colonies, it still perhaps should give some pause to mark the passing of what was once an institution that served to unite the common law.

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Wednesday, February 11, 2009

Teachers and the Right to Political Protest

The teachers' union recently lost a battle with the provincial government over whether or not they could strike 'mid-contract' to protest political matters. This lost battle for the teachers may, however, be a good sign for their ongoing battle with the provincial over election oriented issue advertising. The court held that the right to strike can be limited despite the fact that it is an interference with freedom of speech. It held that the strike ban is a reasonable limit given the public disruption caused by wide scale teachers' strikes. (The teachers complained that non-union workers were still free to engage in protest strikes -- the court pointed out that this would likely result in consequences such as termination, loss of pay and so forth, something that would not happen to unionized employees).

The government should be concerned about this decision however as there is another battle going on with the teachers over the teachers' right to pay for issue oriented advertising (aka "let's get the Campbell out of here advertising"). Provincial legislation limits such advertising in the run up to a provincial election (that is, when it really matters) and the unions are challenging this ban. Part of the reason, however, the court held that right to strike could be limited is the fact that there are other avenues of protest open to teachers to advance their causes. It certainly seems to me that this is something that weighs in favour of letting the teachers advertise -- if they can't walk, at least they can speak.

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Tuesday, February 10, 2009

Fun with Fish Farms

The British Columbia Supreme Court struck down British Columbia's fish farm regulatory regime yesterday holding that laws that manage things that are swimming in the oceans, have gills, have fins and defecate into the ocean amount to laws managing fisheries (even if the fish are in a large pen). The little difficulty that this posed for the Court is that the power to pass laws that are designed to manage fisheries is given exclusively to the Federal Parliament and not the British Columbia legislature. Now it is true that a group of bureaucrats in Ottawa signed an agreement with a group of bureaucrats in Victoria essentially giving Victoria a free hand to manage the fisheries, but the judge found this less than helpful since he had problems finding the part of our constuitution that allowed bureaucrats to make laws without dealing with those nasty little details like Parliament or (at least) cabinet. Well this should lead to lots of interesting head scratching over the next few weeks.

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Bail, Public Confidence and Gun Violence

Courts often recognize that the time has come to get ahead of a building problem and the Ontario Court of Appeal did just that recently by forcing a new debate about secret bail hearings. As our law presently stands the press are banned from reporting any of the information presented at such hearings and are essentially kept to reporting that 'the court denied (or allowed) the Crown's request that the accused be held without bail.'

Canada's bail system essentially is designed to ensure that, except in the case of murder, people are released on bail and the least onerous bail conditions if they can be. This reflects the fact that (1) people are presumed innocent until proven guilty and (2) conditions in pre-trial remand facilities are notoriously bad and it is unlikely that we would actually want to spend the money to build new facilities to house significantly increased numbers of pre-trial detainees. Essentially the rule is that unless the Crown can prove that detention is needed to prevent flight or to protect the public the person is to be released on reasonable terms designed to prevent this (eg turn over your passport and post you mom's house).

The recent spate of bloody and extravagant murders in Vancouver -- which look to be pretty obviously gang related -- has started to liven up the debate about whether or not this is really the right approach to this issue. A professor of criminology at the University of the Fraser Valley was quoted in the CBC yesterday commenting on this issue:

The number of gangs in B.C. has doubled in the past two years, said Darryl Plecas, a University of the Fraser Valley professor.

He said there are more than 100 gangs operating in the province at any given time.
"It's really quite disturbing when we have so many people who are well-known, established gangster types on the street and those people are facing gun charges and released on bail," Plecas said.
"I think, that kind of activity, we really have to give some second thinking to it."

While Professor Plecas' comments seem to oversimplify matters (it is a soundbite after all) they raise a truly legitimate issue in the eyes of the lay people in the public: how can it be that there are so many people running around on bail committing crimes? Of course it is all speculation whether this was true in this case or not, but nevertheless the trend with gang violence in BC suggests that this is a real issue.

Interestingly, the Ontario Court of Appeal struck down parts of these secrecy laws last month. They gave the government a year to fix the problems, but at the heart of their judgment was the observation that the harm of publicity (interfering with the rights to a fair trial) could not be shown in any real way to outweigh the harm that is being done from shielding bail decisions from public scrutiny and debate. Maybe the decisions are good; maybe the decisions are bad. Maybe the problem lies with judges or maybe it lies with the law. The practical problem is that while these decisions are made in secret none of us can really judge this and have a say on what to do. The most ringing statement of the principle applicable in this situation came from Justice Rosenberg (who would have struck down more of the law than was struck down):
[78] In R. v. Hall (2002), 167 C.C.C. (3d) 449 (S.C.C.), McLachlin C.J. wrote at para. 27, “Public confidence is essential to the proper functioning of the bail system and the justice system as a whole”. Again, at para. 31, she wrote: “Without public confidence, the bail system and the justice system generally stand compromised.” Section 517, however, prevents the dissemination of the information necessary to promote public confidence in the bail system. This is the case both at the time the initial decision is made, and later where subsequent events may raise questions as to the wisdom of that decision, as when the accused who is on bail commits further offences. The fact that an accused was on bail when he or she committed a further serious offence often receives wide coverage in the media. However, the public is left to speculate as to why the accused was initially released, because of the s. 517order.

The ruling in the end only struck the rule down for trials that would not be jury trials (this case is inevitably off to the Supreme Court of Canada) but even the judges who disagreed with Justice Rosenberg agreed with this principle.

The time has come for a real debate around how the bail system works (personally I think it comes pretty close to the right balance on the whole) and that debate is not going to be an informed one if it happens with the real process under a shroud of secrecy.

This case also illustrates the importance of the formal press to the advancement of freedom of expression. While the press is a bit self-righteous at times about the sanctity of its rights, the reality is that it is only the press who can truly afford and manage efforts to bring forward challenges like this. While there are people who think that the press can be replaced by the efforts of the amateurs in the cloud of the internet, the reality is different. Cases like this are built on sustained journalistic effort and interest which cannot be sustained by amateurs. The legal challenge depends upon having the resouces and the expert legal teams that only come through the support of the structured press. Left to the blogosphere cases like this would not happen and we would be left in the dark. Thus as we see the economy devastate the press we should avoid the urge to feel schadenfreude -- we will be worse of without them.

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Sunday, February 1, 2009

Infrastructure Now is No New Deficit

There are two reasons why spending public money now is a good idea and creates no new deficits. I argue that despite what all the naysayers say, we are not burdening our grandchildren by doing this spending (though we may have by buying that flatscreen TV).

First, over the last thirty years we burdened (or really most of us were burdened) with a deficit in order to allow taxation to be significantly cut (largely for people who are getting ready to leave the workforce now). That deficit comes in the form of crumbling infrastructure -- our roads, our bridges, our power generation systems and our hospitals have largely been left to crumble or have merely been modestly maintained. Also our public service has been allowed to wither so that now that now it is old and worn out and about to retire en masse.

All of these things are things that will eventually have to be paid for by somebody and those somebodies were going to be future generations (or in many cases us -- who were the future generations when things were left to rot). Thus the spending that we are going to see in infrastructure today in fact is just the conversion of one form of debt (a maintenance debt) into another form of debt (a cash debt). The good thing about a cash debt though is it brings the maintenance debt out into the open and the current generation will have to start paying -- not our grandchildren. Thus current infrastructure spending actually reduces the burden on our grandchildren (provided the spending is not on junk).

Second, now is the best time to actually keep the costs of such infrastructure spending in control. Labour is available and labour costs are down (just ask anyone here in BC who needs to do something on their house). Material costs are down across the board -- steel, gravel and wood are all at lows we have not seen in years and energy costs are a fraction of what they were six months ago. Furthermore, the prospects of these things shooting up in response to the stimulus package is essentially nil (at best they are likely just not to continue to tumble). As a result we will be building this infrastructure when it is economically prudent to do so (contrast this will the Sea to Sky Highway upgrade which was built when labour and material costs in BC were at an all time high).

Notice neither reason is 'we need to deliver stimulus'. That reason is more controversial and likely to lead to shouting matches and all sorts of abuse but what can one say against fixing the hole in the roof when prices are low?

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Saturday, January 31, 2009

Lukey's Boat is Painted Red

Thanks to the Federal Court and some bad debts it looks like newfoundland folksong lovers and Great Big Sea are going to have to change the words to an an old classic.

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Sunday, January 25, 2009


Two interesting takes on remorse and recognition of guilt this week.

Frost/Nixon hit the movie theatres here in Victoria (yes I realize that we are behind the times). There the central plot question (aside from whether or not David Frost would go bankrupt) was "would Nixon show remorse and contrition for what he did?" The pivotal moment of the show for the Nixon character is when he realizes that he has to choose between obfuscating his role in the Watergate break-in and cover-up or conceding that he had been involved and showing some remorse. He chooses, grudgingly, the latter route and while not being enough to save him from the trash bin of history his choice undoubtedly allowed him the modest rehabilitation he did achieve prior to his death.

The New York Times magazine this week (for Saturday, January 24, 2009) looks at the massive financial scandals we have uncovered over the last few months and asks, "where is the remorse on the part of the perpetrators?" In surveying the various villains such as Bernie Madoff and Richard Fulds the article finds little remorse and no signs of contrition. What is even more remarkable in the eyes of the NYT is that there are no signs of angry mobs with pitchforks seeking to lynch the evildoers if they do not beg forgiveness (and maybe even if they do).

There may be a number of explanations for the differences in the times. An elaborate explanation could be built around the idea that we live in a remorseless age where we are not taught contrition. Even for Catholics the Pope has to make a cry for a revival of the withering sacrament of confession and in popular culture remorse is seen as weakness, at best. However, I think there is a simpler explanation.

Richard Nixon's sins were personal and were a betrayal. When Nixon was elected, the citizenry who voted for him genuinely believed in him. They believed he had the mind and the will to take the United States out of Viet Nam and redeem the country from what many conservatives viewed as the lawlessness of the 1960's. That lawlessness was, in the general culture, viewed as being a feature of the left or the counter-culture, rather than the right and the mainstream. What Watergate began was the process of demonstrating to Americans that lawlessness has become deeply entrenched in their very government. In time the details of the J. Edgar Hoover's actions would become public, but Nixon was the leading edge of these revelations for mainstream America. Once it became clear that Nixon could act criminally in small things (like break-ins and cover-ups, the idea that he could act criminally in big things (like carpet bombing Cambodia) became more comprehensible. It suddenly revealed to Americans that their leaders could be corrupt and that the United States was not an exceptional place or nation. Nixon's personal follies thus had a profound effect on the confidence of people in their country and democracy -- but they were personal follies.

The recent financial scandals are very different -- the personal follies of the various villains that have been brought forward implicate all of us on an individual basis. Bernie Madoff is a perfect example of this. He is the perpetrator of a Ponzi scheme -- that is a scheme where new investors essentially pay the old investors the money that gives them their return. The scheme carries on until it is not possible to find enough investors to put a new layer on the bottom of the pyramid and suddenly the last layer of investors starts asking questions, starts looking for their money back and the whole pyramid collapses. What is interesting about a pyramid scheme is that the man at the top (Madoff) is not necessarily the prime beneficiary of the fraud. Every layer above the bottom layer benefits from the folly of the lower layer. Most of the lost money has not vanished into caviar for Bernie Madoff; it has vanished into returns for other investors who were happy not to ask too many questions. If Bernie has to pay it back then why don't all the other layers who got a return on the same basis? Madoff ultimately will not show real remorse because many of his victims were, in fact, his willfully blind (though perhaps unwitting) accomplies.

Richard Fulds (the erstwhile leader of Lehman Brothers) is really no different. Much of the stock market and the reasons it exists is a glorified Ponzi scheme. Everyone who has an RRSP, a 401(k) or a pension supported by a pension fund is living in a world that is built on the assumption that there is always going to be another layer to add to the pyramid to support dreams of Freedom 55 (or Freedom 60) by generating unending returns of 8%-12% year after year. We need this to make the idea that we can run a society where people live to be 80 to 90 years old but leave the workforce at 55 or 60 after entering it at 25 or 30. This model depends really on a large group of investors (aka "marks" for people like Fulds and Madoff) being around to support the huge numbers of non-workers who depend upon their daily bread coming from investment return. Until recently the new layers came from young domestic workers entering the workforce but in recent years, as the baby boom ended, we have come to depend more and more on our marks being supplied by Asia and, I think, we are really seeing the end of this dream now.

Slowly we are all waking up to see that thoughts of early retirement and long comfortable years of sailing in the Caribbean were fantasies. For the millions who are all ready retired or about to retire and were depending upon the money that Madoff and Fulds and their like were supposed to bring in from new generations of marks, this is a fearful prospect given their savings earmarked to support them through those years has largely vanished and they do not have twenty years to wait for their investments to come back again. For the younger ones the prospect of working into our late sixties and early seventies and setting our retirement goals at a somewhat more modest level is a prospect we are starting to become adjusted to. All in all I suspect this is not a bad thing -- the prospect of 20 years or more of shuffleboard gives me dread -- but it is a real adjustment in our vision of our lives.

As for Bernie and Richard they are not remorseful because they look at us as accomplices -- we wanted the return and the dream and wanted them to do what had to be done to deliver it.

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Sunday, January 18, 2009

Popular Mandates and Getting the Worst of Both Worlds

Tom Flanagan, Stephen Harper's mentor and number one fan, continues to be outraged by the prospect of the House of Commons thwarting Harper's agenda and possibly replacing it his government with a coalition (an increasingly unlikely prospect given Mr. Ignatieff's silence on the matter). He recently wrote a column in the Glove (on January 9, 2009) suggesting that the mere prospect of a coalition is an affront to democracy and our constitution. In doing so he acknowledges and skates past the actual constitution that we have and ignores the actual history of Parliamentary democracy. In doing so though he advances a theory of Canadian democracy that will give us the worse of the American system combined with the worse of the British system.

In the United States the executive (the president) is elected or appointed by the elected president. It has its own political powers which it can exercise irrespective of the support of the Congress. It can thus claim a mandate directly from the people and (as was demonstrated by the outgoing administration) can act highly independently to form policy and shape the law. However, the converse is equally true, Congress is free of the executive and can make its own decisions and exercise its power in ways that limit the exercise of executive power without bringing down the government. There is no concept of a 'vote of no confidence' in the United States and issues have to be worked out by give and take between the two major political players (the President and Congress).

Under the British system, the executive theoretically has independent powers but cannot use those powers to achieve major policy goals without the support of Parliament, particularly the House of Commons. Thus at every stage the executive has to show that on any significant matters it has the support of the Commons and when it does not it either has to back down, resign or have an election called to have the public settle the matter. These options are all options which have played out in British history. Indeed, Winston Churchill came to power at the beginning of the Second World War by displacing a majority government that had been elected with a popular mandate through a revolt in the House of Commons. The story of Churchill coming to power is told in Lynne Olson's book "Troublesome Young Men: The Rebels Who Brought Churchill to Power and Helped Save England" which illustrates beautifully how the Parliamentary system can force the executive to change in the face of crisis.

The opening of Olson's book is instructive though as it shows us a scene very reminiscent of what we saw last fall. Prime Minister Chamberlin, arrogant and stubborn because of his principles and electoral victory governed with a "my way or the highway" philosophy. When faced with opposition from some of his own members to a proposal to adjourn the House of Commons for the summer months, he declared the vote to be a matter of confidence and instructed the whips to make sure ever Conservative toed the line or suffer consequences. So too in Canada the give and take between Parliament and the executive has been stifled because Mr. Harper (as have other Prime Minister's before him)has treated every vote as a confidence vote. Thus on every matter the members have been faced with the prospect of forcing an election or a change of government if they decided to face down Mr. Harper.

This is how we end up with the worst of both worlds. We end up with a strong executive that is not elected and a Parliament that cannot act out of fear of bringing down that executive and forcing an unwanted election or an election they do not have the money to fight. The only way to cure this is either to move to a system of actually electing the executive (thus freeing Parliament to oppose the Executive from time to time) or to restore power to Parliament by recognizing that sometimes Parliament can cause governments to change without the necessity of a new election.

Professor Flanagan was born American and has lived in the one party state of Alberta throughout his career. He has a tin ear for the ins and outs of Parliamentary democracy which is best understood in this context. He is used to strong executives (from the United States and Alberta) and castrated legislatures (from Alberta) and cannot understand the sight of anything different. It is a pity though that this is who is teaching the next generation of young minds in Alberta. At least we can ignore him in the rest of Canada.

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Sunday, January 11, 2009

Alligator -- Lisa More (Cdn Book Report #1)

This year I have resolved to read twenty-six Canadian books that I have not read before. My intention is for most of these to be novels, but I want to leave some wiggle room for politics or biography (as I expect there will be a few good pieces of each coming out in this year, given all of the excitement of last). As a part of keeping myself on track, my plan is to write a brief comment on each on this blog to serve as a gentle reminder of failure or success.

To start the year off, I picked up Lisa Moore’s ‘Alligator’. No particularly great reasoning behind the choice of the book save that Ms. Moore is close to an exact contemporary, grew up in St. John’s and was educated across the playground from me in St. Pius X Girls School (the Boys School was happily, on windy days, just downhill). I thought to start in the east and in my hometown seemed appropriate for the occasion.

While my choice was not made on the basis of any real literary criteria I chose well.

There are really only two plots in literature – a man goes on a voyage and a stranger comes to town (which arguably are the same the story from different viewpoints) – and Alligator explores voyages and strangers in the setting of modern St. John’s. The story weaves between six loosely associated characters who each (with one exception) seem bewildered by the arrival of a stranger into their lives.

The strangers though are not new arrivals from afar, instead they are strangers from close at hand. Beverly is overwhelmed by the stranger that has come into her life in the form of Colleen, her teenage daughter. Colleen is startled by the end of childhood and the first signs of the arrival of adulthood. Frank, an ordinary man – barely more than a boy – is frightened by the arrival of Valentin, a foreign gangster demanding his hot dog stand and plotting an escape from St. John’s. Madeleine, a filmmaker is surprised by the arrival of age. The only character who is not startled by a stranger is Valentin, who is determined that the world will not act on him but that he will act on the world. In the end though, events overtake even him.

These stories are interesting not because they show physical journeys but because they show the most difficult voyage we all take is through time and through the day to day of our lives. Indeed, each of the physical journeys described in the book are a bust – an expedition to sabotage forestry equipment is futile; a past vacation in Mexico, an embarrassment; a quest to Louisiana to find an alligator preserve and a man who survived an alligator attack inconsequential and uncomfortable. The most interesting parts of the story all happen within a few miles of each other in St. John’s. The true stranger in each of the character’s lives (even the gangster’s) is the present. Each character is faced with a life that is unrecognizable to the one in they dreamed.

The main character in this story, however, is St. John’s. It is not however, the quaint or historic St. John’s of Wayne Johnston. It is the St. John’s constructed out off the usual junk that has filled all of our cities since the 1960’s. It is a city of utilitarian buildings and miserable weather. Though Moore is too good a writer to spend any (well much) time describing the weather, I felt the rain, drizzle and fog in every page and felt myself pulling my covers closer to keep out the cold (although the -30 in Kenora may have contributed to that). The St. John’s that Moore portrays rings true – it is not a quaint city but it still is not absorbed into the grey sameness of every other city. It made me think that cities are perhaps like Tolstoy’s families – happy ones are all happy in the same way; unhappy ones are each unhappy in their own way.

Moore is clearly though a writer more focused on character than plot. There is ultimately a story that weaves most – although not all -- of these characters together, although it does not result in a single story in the end. Instead there are three central stories (Colleen and Beverly, Frank and Valentin and Madeleine (and herself)) with characters from the other stories playing supporting roles. Frank, for example, is an incident in Colleen’s story and Colleen (though a major obsession for Frank) is in fact a transitory actor in Frank’s downfall. The plot though seems incidental when compared to Moore’s real goal of exploring these character’s reactions to the events around them and painting the contrasts between people at different stages of their life (Madeleine and Colleen could be the same person removed from one an other by fifty years).

Moore's writing is excellent. The characters remain sympathetic even when being cruel or ridiculous. She captures how we all feel when looking at the contradictions between how we want to be, how we are and how we see ourselves. She describes with a light touch and effectively evokes without leading us through paint by numbers depictions of scene or setting. An excellent read.

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Tuesday, January 6, 2009

Epiphany and the Dead

Today is, in the Roman Catholic cycle of holy days of obligation, the feast of the Epiphany. Epiphany notionally commemorates the revelation of Jesus to the Magi (which under the proper approach did not happen on Christmas Day) and so, symbolically, to the gentile world. As children we always knew this as 'Old Christmas Day' and it marked the formal end of all matters Christmas. The tree was down by this day and school commenced and the trudge the year begun.

This is one of these things I know from being brought up Catholic which my daughter will never know being brought up in deeply secular household. In most things I firmly believe unmooring ourselves from the burdens of religion (organized or not) is a good thing and is largely the way of the world in Canada. Yet I do feel a sense of regret at the loss of culture that will go with this over time.

One of the greatest short stories in the English canon is Joyce's "The Dead" which is set (mostly) at a party held in Dublin on the Feast of the Epiphany and in the protagonist's hotel room thereafter. It works on many levels capturing the feeling of an adult party; the feeling that we all have of discomfort about our place in the world and finally the sequence of moments, thoughts and emotions that finally lead to the main character having an understanding first about how little we know about the interior lives of the people in our lives and second to the indifference of the world to human affairs. Thus "The Dead" happens on Epiphany and ends with an epiphany. Will this mean as much to my daughter and her friends or will this be all no more personal than Greek mythology is to most?

The Dead ends with what I think is one of the most beautiful passages of writing in the English language (Joyce is hard on middles but brilliant on ends, read Molly Bloom's soliloquy at the end of Ulysses for example):
A few light taps upon the pane made him turn to the window. It had begun to snow again. He watched sleepily the flakes, silver and dark, falling obliquely against the lamplight. The time had come for him to set out on his journey westward. Yes, the newspapers were right: snow was general all over Ireland. It was falling on every part of the dark central plain, on the treeless hills, falling softly upon the Bog of Allen and, farther westward, softly falling into the dark mutinous Shannon waves. It was falling, too, upon every part of the lonely churchyard on the hill where Michael Furey lay buried. It lay thickly drifted on the crooked crosses and headstones, on the spears of the little gate, on the barren thorns. His soul swooned slowly as he heard the snow falling faintly through the universe and faintly falling, like the descent of their last end, upon all the living and the dead.

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