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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