Wednesday, June 30, 2010

The Federal Government Implements Ignorance is Bliss

The Federal government decided to scrap the mandatory long form of the census in favour of a mandatory short form and a voluntary long form. Of course, as any statistician will tell you a voluntary survey is largely useless due to the problems that come with selection error. That is, it is likely to be those who are specially motivated who will fill out the form and send it in while the ordinary Joe or Jane is likely going to to put off adding an extra piece of work to their life. Even if by some miracle a perfect selection-free sample was obtained there is no way to know this and so the results will always be open to being accused of being biased. Say, for example, the voluntary survey showed 35% of Canadians were atheists (or born agains) then the church (or secular humanist) leadership would point out selection error as the explanation whenever anyone wanted to act on these numbers.

Why this change you ask -- well here is the explanation given by the Globe and Mail and a spokesman for the government:
The move is a response to protests from some Canadians who resented the personal questions in the long form. Similar opposition has been raised in the United States by some Republicans opposed to Washington collecting and analyzing data.

“Our feeling was that the change was to make a reasonable limit on what most Canadians felt was an intrusion into their personal privacy in terms of answering the longer form,” Erik Waddell, spokesman for Industry Minister Tony Clement, said Tuesday.

Given that this information is locked away in the bowels of the archives and annonymously aggregated for analysis it is hard to see what the real priovacy concern is here. Furthermore, sometimes minimal intrusions into privacy should give way to the idea that decisions should be based on knowledge and understanding rather than ignorance and prejudice. Of course, this government has largely been dedicated to the idea of decision making on a data-free basis (see management of the prisons and crime file for this purpose) so why should anyone be surprised?

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Tuesday, June 29, 2010

No Way to Do a Gun Control Debate

There is no topic after the abortion issue that gets tempers through the roof so quickly as the issue of gun control. In Canada we have had a lively and vociferous debate over the long gun registry for a few years now and I expect that there are more debates to come. In the United States the Supreme Court recently ruled that the Second Amendment applied to state and local laws thereby severely constraining the ability of these governments to limit or restrict gun ownership. I will provide a link to the judgment here but tell you to not bother reading it unless you are incredibly interested in the intricacies of American constitutional history. Reaction of course is polarized with the Tea Party and NRA crowd hailing the decision as a vindication of constitutional rights while the liberal pansies (as I suspect the NRA hooligans would call them) of the New York Times condemns the decision as a distortion of the history of the Republic.

Both sides of the debate seem crazy to me as they largely focus on a few obscure sentences written as amendment to the American Constitution in the circumstances of the 1790's and the 1860's. The debate is largely over which group of judges got American history right and properly understood what the connection between the right to bear arms and a well regulated militia might be. While this is of course necessarily of interest to the judiciary it should be of no interest whatsoever to sensible human beings living in this day and age. Instead, it seems to me, the real debate should focus on the question of whether it makes sense to entrench gun ownership and the ability to raise militias in the Constitution at all. That is, maybe the time has come in the United States to have a debate about whether or not to amend or expunge the Second Amendment. It is hard to see that debate ever happening however given the climate of the United States on larger issues.

What this makes me think however is the danger that comes with having an unamendable constitution. In the United States this hardening of the Constitutional arteries comes from the worship of the Founders and the acceptance as religion of American exceptionalism. We in Canada though have the same problem for a different reason -- namely the stark regional/ethnic divide in constitutional visions brought to light by Charlottetown and Meech which make it impossible to adjust the Constitution (except on highly local matters like the Newfoundland school system or changing the name of Newfoundland to Newfoundland and Labrador). While our 1982 Constitution is not that old and some of the problems are just starting to show, our 1867 constitution is definitely getting creaky (Senate reform anyone). However, we cannot have a healthy debate about these kinds of issues from first principles but instead -- like the United States with the Second Amendment -- have to turn it into a legal debate about the meaning of ancient legislation.

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Monday, February 15, 2010

The Kahnawake Problem

The decision of the Kahnawake band council to cast non-aboriginals off the reserve has been in the paper for the last few weeks and is likely to continue to cause smoke for the next little while (it will be interesting to see if the Council actually enforces the eviction order). There is a curious thing about this affair however, why have the Conservatives not used this event as one of their usual occasions to condemn special race based rights for aboriginal people joined with a promise to reform the Indian Act? Lysiane Gagnon comments on this point in her column today where she frames the problem this way:

Why would Quebec and Canada tolerate the trampling of people's basic individual rights by a policy based on bloodline? The Quebec government is looking the other way on the pretext that Indian affairs is under federal jurisdiction, and no one raised a question in the National Assembly. Last week, Indian Affairs Minister Chuck Strahl lamely said that, even though he didn't like the band council's decision, he couldn't do anything since the move is legal and the first nations are “sovereign” on their lands.

The answer is actually easy in the case of the Federal government. The Federal government is busily entrenching exactly the same concept in the Indian Act for a much wider range of matters and cannot be seen to even suggest that there is a Charter or Human Rights problem. Last year the British Columbia Court of Appeal ordered the Federal to bring the definition of status in the Indian Act into compliance with the Charter. In doing so it identified a very narrow problem and skirted the much broader problem that the Indian Act incorporates a definition of Indian status which is a classic "blood quantum" approach -- that is, if you have enough non-Indian ancestors in the last two generations you are off the list.

This rule is draconian. It does not matter how culturally "Indian" you are or how connected to your community you are, if your momma or your poppa is not status and your parents are similarly "impure" -- you are off the list. You could have spent every day of your life on reserve but you are not an Indian. If you have a white dad but your sister has an Indian dad, she is on the list and you are off the list -- even if you lived on the reserve and she lived off. You could feel entirely a part of the community and be entirely engaged with the community but in the eyes of the Federal government you are no more an Indian than I am.

Being off the list means a number of things -- it means no a tax exemption, no automatic rights of membership and -- and this is why the Federal government is so circumspect about this issue -- no federal funding for medical, dental or education. You are officially the Province's problem and the Federal treasury is relieved off any issues related to you whatsoever. Likewise the funding levels for the band as whole can be cut back and treaty settlements can be made smaller as there are fewer Indians to deal with.

Thus Chuck Strahl cannot speak out about this because Chuck Strahl needs this. Despite requests by many aboriginal people to do away with the blood quantum rules and move toward rules based upon community membership, the Federal government has consistently (and this is true of Liberal governments as well) turned a deaf ear. To actually act on this problem would mean that the Federal government would not be able to look forward to the "Indian Problem" being solved by romance. Instead it would have to address its own race based discrimination in the status provisions of the Indian Act.

This issue, contrary to what Ms. Gagnon says, does not go back to just 1981. In fact, when one of the very first predecessors to the Indian Act was passed in the 1800's there were two Indian Acts passed -- one for Upper Canada and one for Lower Canada and each had a different definition for Indian. In Upper Canada it was a wider, community based definition that did not discriminate on the basis of sex. In Lower Canada it was similar to the present definition in the Indian Act with the old marrying out rule built in (that is, a woman who married out lost their status). Why the difference? Because the Mohawks at Kahnawake were unhappy about the number of non-Mohawks on their land.

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Tuesday, February 9, 2010

Insite Goes to the Supreme Court

The Federal government has announced that it is seeking leave to appeal the decision of the British Columbia Court of Appeal that let the Insite safe injection site stay open. This is actually not that surprising a decision on the part of the Federal government since the rationale of the case strikes at the heart of substantial chunk of the body of federal law governing psycho-active drugs and their management. The Court of Appeal in a 2-1 decision held that the Federal government was out of bounds in regulating Insite because it crossed the line into provincial jurisdiction over health. The Supreme Court of Canada is there to hear issues of national importance and this qualifies on almost any understanding of that term.

What is more interesting is the inevitable cross-appeal that will come on the Charter issue that was raised in this case, that was effectively left unresolved in a 1-1-0 split between the three judges. This attack squarely raises the question "can you effectively criminalize addiction if it is in fact an illness rather than a moral failure?" From a certain perspective, the criminalization of drug use in various ways is very much akin to the idea of criminalizing fast food to fight obesity. This challenge will put the Supreme Court of Canada in a tight spot given some of its rulings over the last decade.

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John Gunter -- Back to 1776

John Gunter, a columnist for the National Post and former editor of the now defunct rag known as the Alberta Report, recently gave insight into what the Canadian Taxpayer crowd harken back to. In a column for the National Post (the home for many refugees from failed right wing rags) he evoked the happy taxtation levels of the Americans in 1776 as measure of what we should view as outrageous. He made this observation in commenting on how we have too much government:

The American colonists, by comparison, felt they were groaning under a crippling tax burden. Many of their staples, they felt, were onerously taxed while they received little from England in return and had no say in how large the levies against them would be.

My point was: Quebec, a net beneficiary of Confederation, was chomping at the bit to break up Canada, while, compared to the 13 colonies, they had little to complain about.

So out of curiosity, I asked the historian what the level of taxation was in 1776 that caused the U.S. to declare its independence.

I will always recall his answer: "the equivalent today of about 5% to 7% of their income."

Let's see Lorne, what would you like to give up and go back to from that time?

Let's get rid of a few things that your pals on the right really like, say like, a standing army and regular police forces. Surely we can just stay home, unengaged in international affairs and let the gangs police themselves rather than spend all those lovely tax dollars on such wasteful things. I guess you would be happy to dismantle the prison system by bringing back hangings for trivial offences.

How about we get rid of a few of those other post-Revolutionary frills that we have picked-up, like sewer systems, water treatment facilities and public landfills -- we could save a bundle on muncipal services if we ditched those. Public highways as well -- if anyone really wants pavement they can pay for it themselves. Public education -- surely every child's parents can pay for a proper education and if they can't, well the child didn't deserve or need to be educated anyway. Railways and airports -- pshaw -- it is madness that so many public supports were given to building that all that infrastructue. Things would be so much better if the Crown just waited for the highest bidder to step-up and buy public lands at fair market value and deal with providing such things themselves. We also would not have to pay for all that nasty airport security then -- we could just have differential airfares for people who wanted to fly on airlines that screened for highjackers and those that did not (perhaps we could also offer people in tall buildings a chance to pay a special charge to divert highjacked planes to buildings who were unwilling to pay).

I have no doubt that the real programs Mr. Gunter would like to cut are those that he sees as only helping the undeserving -- you know, the unemployed and those who cannot pay for their own doctors. Let's get rid of all those expensive public hospitals and if rural areas end up with no doctors -- well, you can always pick where you live. Heck, for that matter, since we have gotten rid of public education, public hospitals and public sewers, we might as get rid of all those public health offices too and stop forcing vaccinations on families. Sure we will lose herd immunity pretty quickly but the diseases that should be going around after our first round of cuts finish people off pretty quickly anyway so they will not have that much of a chance to spread to the upper classes, right?

We won't have to worry about retirement costs since we should be able to get life expectancy down to well below 65 on this scheme and there will be few people who will ever become eligible for retirement and pensions in any event. Without public education (think of all those savings in teachers' salaries) we will see a marked drop-off in university attendance and we will be able to scale back public expenditures on professors, students and research within a few years. If all goes according to plan we should be able to cut out public subsidies for universities in about twenty years.

Muddy, smelly, dirty, disease ridden and ignorant -- the wonderful world of John Gunter and the Canadian Taxpayers Federation.

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Sunday, February 7, 2010

Supreme Court of Canada Cops Out

The Supreme Court of Canada has started doing an odd thing -- it has been finding that the Government has either broken its own laws or the constitution but then saying it will do nothing about it except leave it to the government to figure out how to address its own wrongdoing.

In the Miningwatch case the Supreme Court of Canada restored an lower court decision that had been overturned by an appeal court. The Court found that the Federal Government has deliberately set about redescribing a mining project so as to avoid having to an indepth environmental assessment (as opposed to a destop once over lightly). But then the Court held that since the poor mining company (which had been involved in the case after all) should not be made to suffer further. What about the poor public who actually expect that proper environmental assessments are being done in accordance with the law.

In the Khadr case the Court said that the Government of Canada had breached Omar Khadr's rights. Effectively Canada participated in the process of torturing Mr. Khadr who -- odious as he may be -- is entitled under the law not to be tortured. After finding this the Court effectively said "international affairs are too delicate and complicated for us so we'll just leave it up to the government to figure out how to do the right thing." I would like that kind of approach to my potential wrongdoings.

There is another side to this -- perhaps the court would not point out wrongdoings at all if it had to determine the conseuqences of holding the governmemt to account. However, I wonder if there is really that much difference given the present government's contempt for the idea of judicial review and being held to account.

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Wednesday, January 13, 2010

Beautiful Meal

Last night I went to Massimo Capra's restaurant (in Toronto), Mistura. This was my second visit to this restaurant and, as was my experience on the first visit, I had a wonderful meal.

I mainly note this because of the fact that I am normally fairly dubious about celebrity chefs like Capra. Capra writes in the Globe (not too time consuming) and also appears regularly on Restaurant Makeover where he is an affable mentor to a any number of struggling cooks. There is nothing in his television presence to give a clear picture of what a dab hand Capra is at creating meals that flavourful yet delicate and a space that is interesting without being domineering.

This is a good night out experience -- don't plan to go there for your budget meal. The food is interesting without being freakish. The atmosphere is light enough to feel comfortable, yet tranquil enough to allow for conversation. There is no sense of being rushed -- which is a good thing when the food deserves to be lingered over (which is normally hard for someone like me who generally wolfs their food). The service was pleasant, helpful and informative -- when we asked what gave the duck its flavour the waiter explained and even brought out a bottle of the exotic preserved fruit from Cremona that was used to flavour the skin. Everyone on the staff (including Massimo who was sitting at the bar tasting some new terrines) seemed to be enthusiastic about the food and about seeing the customers arrive to enjoy the food.

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The Terrible Idea of Senate Reform

The word is in the air that the present government again proposes to reform the Senate. The Government proposed to introduce Senate elections, which will commence as senators retire from the senate and their seats come open to be filled. There is no suggestion that the powers of the Senate will be reformed at the same time or that the distribution of seats within the Senate will be modified.

There are nice legal questions around the ability of the government to make these changes without following the amending procedure set out in the Constitution Act, 1982 that are worth a momentary comment. The 1982 Constitution provided Canada with a domestic means of amending the Constitution (no more trips to England to politely ask Westminster to do the job). It has two provisions regarding the Senate. First, s. 41 provides that unanimous consent of all of the provinces is needed if a proposal is made to change the rule that no province will end up with fewer senators than the number it had in 1982. Second, s. 38(1) combined with s. 42 says that "the method of selecting Senators" may only be changed if the Senate and the House of Commons agree and two thirds of the provinces representing at least 50% of the population agree (there is a procedure for dispensing with the Senate's consent if they refuse and the House of Commons insists). While there are various ways in which the "method of selection" could be left theoretically unchanged while still allowing for elections (eg. having the elections be advisory while leaving the power to appoint in the hands of the Governor General) my suspicion is that most courts would see introducing elections in any form as a significant change to the "method of elections." However, that is something that will get sorted out in court proceedings.

The more interesting question is whether or not it is a good idea at all. The Senate is a spectacularly undemocratic body. There is a first obvious reason for this, which the election proposal appears to address -- that is, Senators are appointed and hold office until tehy retire at age 75. However there is a second, I think, more important reason. The Senate is deliberately set-up on a quasi-regional/provincial basis with the seats being distributed without any real regard to population. Thus a senator from Prince Edward Island represents approximately 33,000 residents while a senator from British Columbia represents somewhere in the neighbourhood of 690,000 residents. If we throw in the territories this gap becomes even wider.

The undemocratic nature of the Senate, however, is tempered by the very fact that it is not elected. When we look at the history of the Senate in the last fifty years there are a very few incidents where it actually stymies the legislative agenda of the government. For the most part it tinkers with and refines legislation and only on a few matters has it really stood up to the government of the day. Even in those cases where it did stand up to the government (say free trade and the GST) once the House of Commons showed that it was intent on proceeding or an election was held, the Senate got out of the way. This is actually quite remarkable given the fact that the Senate is populated with senators who are often of the opposite party than that which holds power through the support of the Commons (Mulroney, Chretien and Harper have all been in this situation). So why this restraint?

The answer is that the Senate lacks any form of popular legitimacy and the senators know it. While it is easy to think of the senators as a bunch of undemocratic, political hacks, the evidence suggests that most of them are democratic in their views and fundamentally accept the idea that in Canada we have a system that endorses a government that is responsible to the House of Commons. This understanding and lack of legitimacy acts as a practical brake on the willingness of the Senate to throw its notional power around, despite the fact that on paper it is largely co-equal with the House of Commons. Thus, like the notwithstanding power in the Charter, the power of the Senate to stop legislation or to initiate legislation is really a reserve power -- rarely to be resorted to (if ever). This allows the Senate to serve a useful function as an agency to tinker with legislation, develop big picture policy on background matters and act as an emergency governor in the face of rare, radical proposals. However, it is not a real power.

Senate elections will fundamentally change that dynamic. With Senate elections there is a necessary development of a form of legitimacy and with that will come an expectation that the newly elected senators will use their power to do what they were elected to do. Thus we are likely then to see the Senate flex its muscle on a wider range of matters and in doing so influence legislation and government policy in a way that is intrinsically unrepresentative. The local interests of Prince Edward Island (which is already over-represented in the House of Commons) will become even more important. Similarly, the interests of rural Canada will be given even greater predominance over urban Canada (which is under-represented in the House of Commons). The Government will becoming increasingly accountable not to the overall will of the electorate but instead to a bewildering combination of local interests and coalitions. Members of the House of Commons will become irrelevant to the point of being gelded.

Canada is undemocratic enough as it is. Introducing an new elected player into our system that is even more divergent from any concept of one person one vote will not help this. The interests of the Provinces are best looked after by the Provincial governments -- who have strong, independent jurisdictions within their boundaries. Allowing national interests to become too preoccupied with provincial issues helps no-one. Perhaps the best answer would be to abolish the Senate -- but that is unlikely ever to happen give our amending formula. In the absence of that solution, let's not do anything to take it off the sidelines.

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Sunday, January 10, 2010

Terrorists Lay Down Arms

The BBC reports that an independent monitoring group headed by a retired, but widely respect general, recently confirmed that another religious terrorist group has laid down its arms as part of bringing decades of sectarian strife to an end.

Oddly enough this reuslt was achieved not by maintaining the protagonists "no negotiations with terrorists" position but instead involved an intelligent use of military force, police investigation, intelligence gathering, moral suasion, education, economic development and (horrors of horrors), negotiations.

Of course there is some danger that all this is about to come undone thanks to the raging hormones of a nineteen year old boy and a 58 year old Northern Irish MP

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Saturday, January 2, 2010

Homelessness and Magical Thinking

The British Columbia Court of Appeal has effectively called Victoria city council to task for magical thinking regarding homelessness. No-one who lives in Victoria or its surrounding municipalities can rationally believe that there is not a serious homelessness problem in Victoria. There are however different perspectives as to who suffers from this homelessness problem.

At one side of the spectrum there are those who expressly or implicitly think of homelessness as a self-inflicted injury on the part of the homeless -- that is, the problem would be solved if only the homeless would stop taking substances or get a job or take their meds or just 'straighten-up' and have some self-respect. At the other end of the spectrum there are those who see society as having inflicted the injury of homelessness on itself by failing to provide protection for children or adequate health care for the mentally ill or basic welfare for the poor or affordable housing for those who are low in income. As is generally the case with spectrums, most of us take views which are a blend of these thoughts.

To my mind however, the injury of homelessness is done to all of us. The suffering of those people who are without homes is obvious. Even in Victoria the elements are not kind at night. In the winter it is cold, wet and dark and in the summer it is just cold and dark. It is also a dangerous environment, as night always brings out the drunk or the risk-taking who will do things that are near unthinkable in the light of day when, if nothing else, the regulatory pressure of being observed serves to regulate some of our baser behaviour. I suspect that there are few homeless people who have not encountered situations where they have been assaulted or threatened while outside without shelter or protection in the night. While it is easy to fault those who are left without homes for drinking or taking drugs or allowing themselves to retreat in to psychosis, I wonder who would not want to do this when faced with the rigors of the outdoors. If the trials of tough day at the office require a glass or two or wine or a few beer at the end the day, how can the stress of the street not require something stronger.

Society as a whole suffers too from homelessness. In one sense it suffers the same way as the homeless themselves, for they too are full members of society who are entitled to all of the rights and protections guaranteed to all citizens. Their homelessness is our homelessness, as they are rendered unable to care for themselves or make the contributions to their families or society that they may want or we may expect. But even those who view all of that as mushy left-wing thinking would agree that the society at large suffers from the scourge of homelessness. Streets are rendered either unsafe or threatening. Neighborhoods see upswings in crime and the disruption that comes from desperate people with no basic provisions, no hope, no where to go and no investment in society having to 'hang about'. The physical environment suffers as people have to live their lives without the basic sanitation that our homes provide to us for the disposal of waste and the maintenance of personal cleanliness and hygiene.

On the ground in Victoria what has been seen and continues to be seen is a deterioration in our pubic spaces. Victoria is not a large enough city where there can be a "no go" zone that is distant from most of the neighborhoods in the city (such as is the case in Vancouver). Instead homelessness is pervasive throughout the downtown and into many public areas that are not all that downtown in character. There is no "going around" the homelessness problem (if one is unwilling to look upon the poor or the destitute); there is only fleeing it by living one's life outside of the city altogether. This undermines our sense of social cohesiveness; undermines the quality of life in the city and threatens the social fabric of Victoria as people become reluctant to live and work in the City. It is here that magical thinking begins to infect the thinking of Victoria's city council.

Magical thinking is the phenomena of confusing or divorcing causes from effects. Thus in a world of magical thinking blowing a whistle will cause a steam train to appear as we all know that whistles precede the arrival of a train by mere minutes. If the train does not come then we must have been blowing the whistle the wrong way -- perhaps a bit louder or a bit higher or perhaps we just need a couple of whistles. So to does Victoria city council think that homelessness -- or at least its adverse effects on public space -- can be solved by merely passing a by-law banning the erection of shelter in parks or on public spaces. Surely with such a law being passed the homeless will fade into the background and perhaps even find jobs, get themselves cleaned up or whatever is necessary so that the good taxpaying (rather than sponging) citizens of Victoria can walk on Harris Green in comfort. This is so much cheaper and easier than shelters, public health nurses and needle exchanges -- everyone in favour please raise your hands.

And yet, they still camp? How can this be? Perhaps we just need to beef up our by-law with a bit more paper and ask a judge to give us an injunction which will magically make the homeless go away. Or at least make them stop cluttering up our public spaces. A bit more paper and the problem will be solved.

In the end the British Columbia Supreme Court and the British Columbia Court of Appeal declined to engage in that sort of magical thinking. These courts accepted a simple argument -- banning people with no homes who live outdoors from erecting shelter over their heads in all public spaces directly threatens their personal security unless some alternative is offered to them. To offer a few hundred shelter beds to shelter a homeless population in the thousands does not cut it. The by-law has been struck down and council -- and all of us -- have been sent back to rethink the approach to the problem.

Now we have to figure out what to do -- and here comes the tricky part. It is clearly the hope of those who fought this case that Victoria will respond by building more shelters and allowing for more beds. Whether this will work or will merely result in the "if you build it, they will come" phenomena we see with highways is an interesting question. Ideally this would be joined with more extensive and meaningful interventions to help those who want to leave the streets do so. There is another route open to the city now -- to regulate outdoor camping rather than banning it outright. I fear that what we will soon see is a few parks or public spaces abandoned to the homeless as semi-permanent shanty towns -- a phenomena that has been growing in the United States. Perhaps the city will throw in a few porta-potties and some sinks and then ban camping everywhere else. This is a cheap, dirty and ugly response to the problem that fits well with the out of sight, out of mind approach we have seen with many governments in Canada.

Of course one of the real problems in coming up with a response to the problem of homelessness is that it has been largely left to the cities and charity. The provincial government and federal government have largely washed their hands of the issue both in terms of funding and, as importantly, thinking. Yet the reality is that these are national problems. People do not become homeless and remain in their parents backyard. They migrate to the city from suburbs, small towns and reserves. The problem is thus a national problem that is transported to the cities but the homeless are not always (or probably even predominantly) the children of the cities. They are the children of the nation. As such they should be helped by our national and provincial governments so that the burden of homelessness can be borne by all of us and not just exported to cities. It is only with this approach that we are going to ever develop effective solutions to the problem of homelessness that are not just stopgaps (shelter beds) or magical thinking.

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