Quebec and the Federal Spending Power

Not surprisingly now that Quebec has been formally recognized as a nation inside of Canada (see the resolution supported by all of our current leaders and leaders to be) the debate in Quebec now turns to setting out the details of what that means.

From a legal point of view, my inclination is to say, please refer to s. 92 of the Constitution Act, 1867 and review the extensive list of powers reserved to the Provincial government. Stepping back and looking at that list it is hard to see anything, except the power to enter into international treaties and to wage war, that distinguishes any of the Provinces from a nation. The only flaw is the fact that there is another level of government that has overarching powers to make laws for the 'Peace, Order and Good Government' of Canada whose laws are paramount in the event of a conflict. As the Supreme Court of Canada recently held this actually means that there are very extensive areas of co-existence between the Federal government and the Provincial governments and most issues in this regard will be resolved by political give and take rather than legal fiat.

Reading deeper into the article and seeing its references to limiting the Federal spending power, one sees that what is really at issue therefore is not defining Quebec's national powers (except possibly their desire for their own cock-of-the-diplomats) but instead the gutting of the Federal government. But it we all recognize that this is not on as a part of a larger national discussion -- there are just too many areas where most Canadians do expect the Federal government to act and none of us will be content to see those powers definitively removed as a matter of law rather than a matter of evolving politics.

In fact though, this is all a tempest in a teapot that will get the Trudeau/Mulroney/Harper (take your pick) haters worked up into a lather (see the comments in the Globe online edition). This is really theatre for the Quebec audience only as the various parties try to position themselves on the Plains of Abraham to best re-enact the version where Wolfe if killed and Montcalm triumphs. Quebeckers recognize this for what it is and given their increasingly sophisticated view of the world will watch the politicians go through their paces on this issue but judge them on things like the economy, labour peace and public services.

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Quebec wants to define 'nation' status
JOCELYNE RICHER
Canadian Press
August 7, 2007 at 4:23 AM EDT
QUEBEC — The provincial government plans to force the federal government's hand on how it views the division of powers with the provinces and spending, Quebec Intergovernmental Affairs Minister Benoît Pelletier says.
Premier Jean Charest's government also wants to finally see Quebec's distinctiveness recognized in the Constitution in a charter of open federalism.
Quebec wants the federal government to address the division of jurisdictions between Ottawa and the provinces and intends to press Ottawa on the matter, Mr. Pelletier said in an interview yesterday.
He also wants the federal government to spell out precisely how it sees the federation operating and wants Ottawa to limit spending in provincial jurisdictions.
The provincial government is wading into constitutional waters again to short-circuit any resurgence in sovereigntist support for the Parti Québécois under new Leader Pauline Marois and curtail any flirtation with the autonomist platform of Mario Dumont's Action Démocratique du Québec.
"We will be very insistent," Mr. Pelletier said.
However, a source in the federal government said Quebec will have to get the support of the opposition parties before embarking on any new constitutional adventures.
Mr. Pelletier said he wants the federal government to be specific in its recognition of Quebec on its national characteristics as well as the limits of federal spending powers.
The federal government has already recognized the Québécois as a nation within a united Canada but has never really been clear about what that means.
Mr. Pelletier said that instead of being a vague document, he wants the charter to be a blueprint for future dealings with the provinces.
He said a charter of open federalism could be a significant contribution to modern Canada and signal the advent of a "much healthier federalism."
"If Ottawa is not ready to define the contents of this charter, I am," Mr. Pelletier said.

Pedaling to a Good Story

Anne Mullens, an old friend and award winning writer, has established a blog where she chronicles her various adventures as a mid-life pedicab driver (ie. a combination human engine and tour guide) in Victoria. She is undertkaing this work as a part of doing the research for her next story but I get the feeling in speaking to her that maybe she plans to take this up as a way of life.

www.annemullens.com

Eating Us Alive

Below is reproduced an article about how the innards af an antique clock in downtown Victoria were stolen for scrap, likely to feed someone's drug habit. It is just a small but particularly pathetic example of the disease of drug addiction is eating our cities alive as surely as cancer eats the huma body alive. The sad thing is that the only solution that is seriously advanced for this disease is not systematic treatment but prohibition of the same form that was tried for alcohol in the early twentieth century and which failed then as surely as the drug prohibition will fail now.

In my work in Toronto I helped a number of doctors who were facing battles with drugs and alcohol through the regulatory system as they worked to keep their licences. With the assistance of excellent medical care, strong support systems and carefull montitoring, these professionals were spared the indiginities and stigmatization of loss of licence, jail or other forms of punishment. These doctors (and the same is true of lawyers, nurses and vets) were both saved for themselves and for the rest of us as they returned to being fully productive members of society.

This dramatically contrasts with the treatment most addicts get as they are left untreated for both addiction and concurrent mental illness, are left with out support programs and are generally cast out of scoiety and condemned to one form of destruction of another. Society offers them little more than the street and not surprisingly they offer society little in return other than contempt.

There has to be a better way.


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CRIME: HERITAGE DEFACED
Clock takes a licking, stops ticking
Police suspect drug addicts took off with timepiece's innards to feed habit
MURRAY LANGDON
Special to The Globe and Mail
August 7, 2007

VICTORIA -- Time now stands still for a century-old clock in the B.C. capital after suspected drug addicts gutted its inner works to fund their habit.
Victoria police say the four-metre-tall clock, erected in 1900, is missing its pendulum, a 22-kilogram lead weight and other parts.
Constable Barry Cockle, a veteran street crime officer, said it's most likely a crystal-meth-infused crime."They're stealing the lead for the lead. It's worth recycling money," he said.

The lead weight, along with a 12-kilogram aluminum ball at the end of the clock's pendulum, could be sold to scrap dealers or recycling depots to buy more drugs.
It's a growing problem for many cities. Thieves have proven to be resourceful and brazen, even targeting hydro and telephone substations to steal copper wire. In one such case on Vancouver Island, according to B.C. Hydro, thieves tore up the ground grid to pull up the wiring.
Hundreds of Victoria parking meters have been damaged or stolen to get small amounts of change, and will have to be replaced with less vulnerable devices that will cost taxpayers up to $5-million dollars.
"Basically, it's reaching the point that if it's not nailed down, they're going to steal it," Constable Cockle said. "Even then. ..."
The clock, located outside a jewellery store, sits idle at 12.
"It's very sad. It's been a trademark all these years," said Paul Groppe, co-owner of Francis Jewellers since 1995. "When we took over the store, we took over the name and the clock. ... When we saw the damage, we were heartbroken."
The timepiece has been a landmark for decades. The Joseph Mayer Co. made the clockworks in Seattle, and Hutchison Bros., who also made Victoria's unique lampposts still in use today, made the cast-iron clock standard.
The clock is powered by a weekly cranking of the heavy cast weight, which is no small chore, and the complex antique device has to be taken apart to ensure it lasts.
The clock was originally erected a few blocks from the city's scenic inner harbour. When F.W. Francis opened a jewellery shop across from the Hudson's Bay in 1921, he moved the clock in front of his store. Since then, it has followed the shop and its subsequent owners.
Reid Hudson, who runs Selkirk Recycling in Victoria, is perplexed, however, by the notion there's a lot of money to be made in selling scrap. At his operation, aluminum is purchased for 32 cents a pound, lead for only 20 cents a pound. All told, the clock heist would net the thieves around $15.
Mr. Hudson said he's been working with police to stop the trade of stolen goods, but said it's difficult to determine who's broken the law. He said his employees will do their best to screen sellers, but added at the end of the day it's difficult to prove where something has come from.
Mr. Hudson said he's had lengthy discussions with businesses on the Lower Mainland that no longer accept "walk-in business."
"You've got the homeless, the dumpster divers, that subsidize their business by finding stuff that was going to be thrown out to get money. That's a service they provide. You've got guys that make a living by going to construction sites and cleaning up, because the people on site, that would have to do it anyway, can get them to do it."
As for the historic timepiece, it will be fixed, but it's going to take time. Mr. Groppe said a watchmaker, who specializes in pre-1900 clocks, has agreed to take on the project. But the intricate and unique nature of its inner workings can't be replicated overnight.
Some damage done a few years ago forced the jewellers to draw sketches of most of the clock's moving parts, so they've got a head start in replacing what was stolen. Still, it won't be keeping time for Victorians for another two to three months.
Constable Cockle said very little appears to be sacred, especially when drugs are the end result of someone's ambition. He's "put the word on the streets" that police are looking for the thieves, but he isn't overly hopeful about catching those responsible, or stopping this type of crime.
"They're walking around, pushing their shopping carts and thinking about 'what can I steal?' The heritage? They could care less."

Stage

We tried a new restaurant on Saturday night.

Stage is situated on Gladstone Street a moment's walk from the Belfry Theatre.

It has everything one could ask for in a new restaurant: the food (tapas stype) was interesting and delicious with the right combination of comforting and frightening on the menu; the decor is welcoming (open, dark wood, lot's of glass in the front) and modern; the wine list varied in type, range and price while still being of good quality throughout; the customers were good to look at (particular the blonde couple at the bar).

The Butcher, The Baker ... Who Needs a Candlestick Maker

When I was young I have clear memories of Mr. Talyor driving up the long driveway to my grandmother's house and selling various cuts of meats out the back of his pick-up truck. the meat was recently slaughtered, well butchered and delicious. My grandmother would go down, and various cuts would be taken out for her consideration with some being dispatched back into the depths of his truck (too small, too fatty, too expensive). Others made the grade and, after a discreet negotiation and exchange of money (true blood money), were taken into the house where they would be turned into my grandmother's irresistable cooking.

In St. John's, while most of our meat came from Dominion ('it's mainly because of the meat') I still remeber my father coming back from Shield's Meat Market with a variety of delicious treats including black and white puddings. Black puddings -- or blood puddings for the purists -- are those thick spicy (in an English spicy sort of way) sausages that are coloured and flavoured by the addition of blood in the course of preparation. While their origins make some squeamish, they are one of England's great contributions to the world's cuisine and Saturday morning breakfasts have not been the same since I have been deprived of easy access to them.

Since moving to the mainland I have learned that one of the most important things to find in a city (and it is not a real city if you cannot find it) is a good butcher. The plastic wrapped meats of uncertain origin that are to be found in even the best of supermarkets just don't cut it ... they inevitably taste as if the essence of their styrofoam and plastic wrappings have leached into them depriving them of the real taste of food (much less meat). A true butcher will know where his meat has come from (usually nearby), will know how to cut it, will give you helpful suggestions where he hears how you plan to miscook it and is actually able to identify those peculiar cuts of meat you read about in cooking magazines. You have no doubt that they eat what they are serving and likely know more ways to cook any given cut then you will know for all types of meat in your whole life.

Victoria is a city blessed with two excellend butchers. One is the establishment man -- long established, filled with regulars who range from age 18 to 85 -- while the other is the new upstart. Slater's is the long reigning champ -- a family affair you can walk in and see father and sons at work on any given day. Dressed in white uniforms, serious and businesslike these men have purveyed Christmas, Easter, Thanksgiving and endless special dinners to Victoria for decades. There is no better place to get prime rib and you had better get there early to be near the head of the line to pick up your pre-ordered turkey at Christmas.

The Village Butcher in Oak Bay is the upstart. Located near Ottavio's and clearly riding on the growth of the food loving culture in Victoria, the Village Butcher exudes the atmosphere of a group of guys who have thrown aside other pursuits because they have found their true love. These guys love meat in the way that men love their first post-divorce, mid-life crisis younger girlfirend. You can see that they want to be around the meat; they want to serve the meat; they feel liberated by the meat -- I can only hope it will last in a way that the girlfriend won't. They know things about the meat that seem almost unseemly: just on Saturday I was told that the leg of lamb was so fresh, "it was walking around Metchosin on Tuesday."

It was delicious.

Bad Ideas From Lawyers About Polygamy

In British Columbia a recent report by Richard Peck has found that it is unlikely that any charges would be successfully prosecuted against the denizens of Bountiful. This is the town in the BC interior where there have been years of reports of polygamy, child brides, child abuse and welfare fraud. There have been fairly widespread cries for authorative action to be taken by the police and prosecutors to bring this embarrassment to an end but nothing has happened. The latest report recommends no charges be laid in Bountiful but has come up with the clever idea of a reference to the Supreme Court of Canada to determine the issue of whether or not Canada's polygamy law could withstand constitutional scrutiny.

The Globe and Mail has decided to endorse this idea saying as follows:

It's good that he said so. Too many supposed experts have walked on eggshells around the subject of polygamy. A constitutional democracy such as Canada need not accept every practice of a religion or cult or cultural group. In fact, Canada is obliged to protect vulnerable people from practices that create major harm. For instance, Canada is obliged to ban genital mutilation. It is obliged to insist on a single standard for corporal punishment rather than permit some groups to hit their children.

While these words ring true and should inform Parliament, legislatures, courts and each of us as thinking citizens, they actually stand as a strong argument against a reference to the Supreme Court of Canada.

A reference is a process where the government can send a question to the Court for an answer (if the Court believes it to be appopriate to answer) in the absence of a formal lis or live controversey. The Court receives the question with a minimal factual background and is then asked to hear the lawyers debate the question in some big league version of a high school debate. The Court then renders a judgment which may or may not answer the question and may or may not settle the dispute. In reality though, the reference power is generally used where there is a real controversey and there are real combatants who sooner or later will be in front of the Court anyway. This was the case with the same sex marriage controversey where the challenges were slowly but surely working their way up the chain in one province or an other, and likewise with the great constitutional references in the early 1980's.

In each case there was a well developed factual backdrop. There were opponents to take both sides of the questions and intervenors to cast light on different aspects of the issue. It was possible to layout the social context as well as the practical matters that the Court's decision would bear on. This would most decidedly not be the case in the case of a polygamy reference.

The evil of polygamy (religious arguments aside) -- and I have not made a study of this issue -- is said to lie in the social context of how it is practised. That is, regardless of its academic attractions the practicial reality is that it is so intertwined with abuse of women, children and the welfare system that there is no way in a modern democracy it can be practised safely. Thus whatever issue of religious freedom or personal liberty arises this is a limitation that is justifiable in a free and democratic society. Now this may or may not be true but the fact of the matter is absent a real case, with real human beings and a real context this will be a dry abstract debate without a footing in reality.

The danger here is that as an academic issue there are easy arguments to be made on the basis of religious freedom (how many wives did those biblical patriarchs have anyway?) and personal liberty to support polygamy. The counter arguments (except for ones based purely on the New Testament) debate on facts and context -- a reference strips both away. This observations is really true for both sides of the debate in fact.

Twenty five years ago growing up in Catholic Newfoundland I was largely unaware of any of my friends or acquaintances having any sexual orientation than straight (although I now know differently about many of those people). The issues of gays and lesbians were entirely abstract to me and largely informed by my Catholic education. There was no reality to their situations, their desires, disappointments or aspirations for me or for really anyone in the public sphere. Even on reaching university and going to law school most of my experiece with gay and lesbian persons was in the context of out activists -- indeed with few exceptions merely being out in the 1980's and 1990's waas a form of activism. The issues around gays and lesbians wanting to mainstream their lives and to partake in conventional social institutions were not front and centre in the press or in my personal world -- which included a great many progressive people at the time. The fact of the matter is that the Courts and the public and even me as an individual would have reacted very differently to the same sex marriage issue in 1985 than would have been the case in 2005, when it was a real issue with real human beings pleading their real cases.

Richard Peck has looked at Bountiful and said no charges can stick. The residents of Bountiful are not pressing for the laws around polygamy to be reformed (they deny it is going on or just don't comment). The muslim community is not pressing this issue. There is no political party pressing for this issue and as the Globe and Mail editorial itself observed there is no groundswell of public support calling for change. Parliament has passed a law and there is no serious challenge to it -- the only issue is that prosecutors seem to be afraid to use the law. My thought would be -- well -- use the law: if there is a problem charge someone. Have some evidence. Lay out the evils. Show the harm and take the time to make sure both the personal and social facts are laid out in front of a judge and in due course the Supreme Court of Canada will have its say in the context of a real case. Moreover, have someone there who will put a human face to the other side of the story.

It is bad for the Supreme Court of Canada (which has lots of real work to do) and bad for democracy and our democratic institutions to turn the Court into a debating shop where we regularly debate abstract issues of social policy.

The Federal Court Redux

Cheif Justice Alan Lufty of the Federal Court has referred to the Federal Court as the 'unknown court'. Indeed it is a court that is little known to most Canadians and for various reasons (fear, unwillingness to deal with the different rules) lawyers avoided this court if they could find any way to do so (except for exotic breeds of lawyers like patent litigators, but enough on that). One of the traditional reasons for avoiding the Federal Court was the belief that given its specialized interest in matters related to the Federal government it was the Federal government's 'pet' court and someone challenging the government could expect to recieve shortshrift.

Today the Federal Court gave further evidence that this last concern is, in fact, unjustified. Stephen Harper's New Government recently tried to gut part of the National Wheat Board's monopoly by allowing for 'two desk' trading in barley. This was viewed as a first step toward largely abolishing Wheat Board's monopoly on all matters. What was notable about this effort was that it was done without legislation. The Wheat Board itself challenged this action in Federal Court and today suceeded, forcing the Stephen Harper's New Government to face the daunting prospect of taking this change to the Wheat Board to a divided minority Parliament.

My money is on Stephen chickening out.

The Federal Court though has now held Canada's feet to the fire on a number of big issues in recent years, including arbitrarily denying passports to purported terrorists, granting bail to immigrants held in house arrest for years on secret evidence, failing to consult with small aboriginal groups on the Mackenzie Gas project and lifting part of the Federal government's decision to supress parts of the Arar Report. The Federal Government has won plenty of cases but it is not enough for the Department of Justice to merely show up and introduce themselves to win. Instead things are as they should be -- you can't tell who will win by their name.

This is good news for all Canadians. The Federal Court traditionally dealt with a range of technical matters such as tax, immigration, and intellectual property where their specialized knowledge served all parties well. However, increasingly in recent years Parliament has given the Federal Court increased powers in areas that touch on all of our liberties and it is comforting to know that the Court will not be acting as the Federal Government's 'pet' court -- unless the Feds know that their pet will be biting back from time to time.