Those Wild and Crazy Judges

The Supreme Court of Canada is at it again.

The current Supreme Court has shown a real knack of cutting through long-standing hard to grasp legal tangles where there seemed to be no real way to understand what previous courts had done in any kind of coherent way -- largely because the previous courts had not been particularly coherent.

The usual way courts deal with this is they politely overlook the tangle and pretend it does not exist while they pick the bits out of the earlier cases they like and ignore the rest. This court, by contrast, has in a number of areas just ditched previous rulings saying, in essence, "wrong" or "incomprehensible."

For those of us who went to law school until say -- yesterday, one of the nightmare areas was what is referred to as "judicial review" -- that is the role of the courts in policing the way government bodies or bureaucrats carry out their duties. In this area the courts have been vacillating for fifty years between two ideas -- one being that even bureaucrats must obey the law and the other being that courts should not try to take over the job of bureaucrats when the elected officials have given the job to the bureaucrats. This body of law built up a huge collection of technical ideas that seemed completely meaningless such as "patent unreasonability", a "pragmatic and functional approach" and "deference". These words seemed to have completely different meanings from case to case depending upon what the judge wanted to do.


In a recent case involving the dismissal of a New Brunswick lawyer the Supreme Court of Canada essentially looked at the mess and said, "let's dump this." Along the way they made some remarkably candid comments about the state of the law and the way judges have been working. For example, Justice Binnie says, "That said, I agree that the repeated attempts to define and explain the difference between reasonableness simpliciter and 'patent' unreasonableness can be seen with the benefit of hindsight to be unproductive and distracting." Given that most of the effort in this area of law since 1988 has been dedicated to figuring out what these terms mean (thanks to several earlier Supreme Court of Canada cases) this is a remarkable comment.

Here is what the opening paragraph of the main judgement says:

This appeal calls on the Court to consider, once again, the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals. The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges. The time has arrived for a reassessment of the question.

Notice that this says "no solution" -- which is a remarkable concession given that the reason we have a Supreme Court of Canada is to provide solutions to problems just such as this and supposedly that is just what it has been doing in this area for the last thirty or forty years.

It all continues to be interesting up there in Ottawa (by the way -- the lawyer stayed fired).

Experts, Judges and All That

On Friday, February 22, 2008 the Smith Inquiry (properly, the Inquiry into Pediatric Forensic Pathology in Ontario or the Goudge Commission) heard testimony from a panel of judge's, ex-judges and academics who testified about the difficulty of dealing with experts and the necessity of increased skepticism about the various experts that are trotted out from time to time by the Crown to prove their cases. These experts have a generally fatal effect to most defences as they come cloaked in an air of authority and definitiveness that is hard to overcome. Judges hearing cases alone sometimes are able to set aside the infallibility of the expert but juries are ill-equipped without careful and thorough guidance from the defence to overcome the effect of the Crown merely calling this evidence.

All of this has been compounded by the effect of a Supreme Court of Canada ruling called Mohan which has largely eliminated the possibility of excluding an expert from testifying outright. As long as the Crown (or defence for that matter) can show that the proposed witness has some experience, skill or qualification that may render him better qualified than an ordinary person to comment on some relevant matter, then the Mohan decision means that the courts will let that person testify. The Supreme Court of Canada judges in their wisdom decided that the frailties of an expert's testimony are all better dealt with as a matter of "weight" in the final balancing that a judge or jury must carry out in deciding whether or not to convict.

The problem with this approach is that expert testimony is rarely simple. First there is the question of what constitutes well-established science or knowledge, what is more controversial and what is more in the nature of out there speculation. if the jury consisted of a panel of experts in the field that may be something they could sort out but for the most part if an expert says " this is what the science says" then as far as they know that is that. At best a defendant can try to fight back with another expert but that brings up a range of issues including (1) the ability of defence counsel to recognize the problem, (2) the costs involved in finding a responsive expert; and (3) the costs involved in bringing forth this evidence.

Second, while experts are called in specific areas of expertise -- say biology -- they cannot resist the temptation to "roam" (to use the words of the witnesses in Smith Inquiry). I experienced an example of this in a lengthy environmental prosecution I defended a few years ago. The Crown called a series of experts who essentially said that the loss of gravel from a spawning ground would cause damage to the area's ability to support a salmon population -- this was fair evidence in the field of biology. The problem was that the damage had not occurred in the spawning ground but instead had occurred upstream. The biologists could not resist saying that the digging of gravel upstream would cause a loss of gravel in the relevant spawning ground -- something that had nothing to do with biology but was more a matter of engineering or the exotically named field of geography known as "fluvial geomorphology". The biologists had roamed into engineering -- a field they new nothing about and which in fact they had some fundamentally wrongheaded notions about (something which, fortunately I managed to convince the judge they had done).

Third, there is always the issue of assumptions -- experts base their evidence on assumptions. If those assumptions cannot be proven then the expert's evidence is worthless. Unfortunately, the proof of the assumptions often falls by the wayside. Thus for, example an expert says "If the temperature was less than 5 degrees, the person was dead for six hours" If it turns out that the temperature was 10 degrees than this evidence is no help at all but often the first part goes in and no-one ever deals with what the temperature was and so the evidence just becomes "the person was dead for six hours" when, in fact, it may have been three.

Sadly though, unless defence counsel are properly prepared to fight these fights and challenge the evidence -- which requires understanding the evidence -- and judges are willing to exclude witnesses and limit testimony then these issues will not get dealt with. Sadly though unless counsel are funded to do this work it will not get done. Furthermore, given the background of most counsel -- general arts, economics, social sciences or business -- many are just not equipped even if fully funded to go into the depths of this sort of evidence in the manner needed to deal with these problems.

Thus the solution lies in four pieces:

(1) re-visiting Mohan and revising the rules that have kept judges from excluding experts from testifying at all;

(2) funding lawyers to allow them to properly prepare to challenge such evidence;

(3) ensuring that lawyers are properly qualified -- which may mean trying to recruit more lawyers with science backgrounds -- to deal with such evidence;

(4) an increased willingness on the part of courts to keep experts from "roaming" and limiting their evidence to those matters for which the basis can, in fact, be proven.

It will be interesting to see if after the scandal of Dr. Smith's dreadful conduct the courts, the bar and the Parliament and legislatures of Canada are willing to come to grips with these matters.

The State of the Federation

I have lately been distracted by a number of personal matters -- yes these do intrude upon blogging from time to time -- but there has been a recent spate of articles culminating in an opinion piece in today's Globe and Mail by Rudyard Griffiths, the outgoing head of the Dominion Institute, that have motivated me to write. Griffiths' valedictory piece laments the widening rift that has quietly developed with the encouragement of the Federal government between Quebec and the Rest of Canada. Griffiths' suggests that it is the Rest of Canada that will be the loser in this process through the slow creep of Americanization. Quebec he suggests will remain vital and alive given its cultural strength and health.

While Mr. Griffiths correctly diagnoses the illness, he, I fear, misses the mark in terms of outcome. While we all stand to lose a lot through the withering of the two founding nations nature of Canada it is Quebec that will lose the most in the long term -- indeed it could lose everything.

The illness is obvious for anyone who steps back and looks. Successive federal and Quebec governments -- starting with the Mulroney Government but with increasing haste with the Martin and Harper Governments -- have essentially implemented sovereignty-association without giving it that name. Quebec has been recognized as a distinct nation, has been allowed to implement a separate immigration policy, has separate recognition in a number of fields on the international stage and has been given the effective ability to opt out of or veto new federal initiatives.

This last matter is the most corrosive to the overall cohesion of the nation and the one that will start to drive things in a number of ways in the near future. There are a wide variety of matters which Canadians increasingly recognize as calling for a national strategy beyond facilitated workshops of the premiers presided over by an emasculated Prime Minister. Canadians are increasingly calling for national and uniquely Canadian solutions to issues such as environmental protection, national security, economic crimes, healtcare and immigration and there is an increasing sense of frustration that nothing is being done.

The reality is, however, that Quebec as a matter of principle will oppose the development of new Federal initiatives in any of these areas unless Quebec is permitted to opt-out and be paid for the right to do so. Many of these areas cannot be addressed on a piecemeal basis (the same air will drift over Quebec no matter what) and how compensation should be paid is a big mystery (how does one pay Quebec for Canada establishing a national securities regulator). More practically however, the other provinces will equally oppose initiatives that do not include Quebec under the same programs. In the area of the environment, for example, why would Alberta, as a producer, accept greater federal environmental regulation of the oil sands from a Parliament in which Quebec, a consumer, is disproportionately represented when Quebec would have the ability to veto or opt-out of the program?

Mr. Griffiths sees this as reinforcing the Americanization of the Rest of Canada, citing moves such as the introduction of fixed election dates and the interrogation of Supreme Court of Canada nominees. In fact, these are both overblown concerns that have had limited application and have done little to capture the imagination of most Canadians. The greater danger lies in the looming demographic problem brought upon us by the increasing age of the Baby Boom generation and the failure of that generation to breed a replacement generation. This simple demographic reality is going to work profound changes in our society which we are just being into plumb (see the most recent edition of the Atlantic Magazine in this regard).

The simple problem that this demographic reality poses is this: who will do all the work that we expect to be done? This does not just mean the work that the state will have to do but also the work that businesses will have to do. Anyone who is an employer knows that one of the hardest problems we face is finding adequate skilled personnel to enter institutions and stay with them, acquiring the skills and loyalty necessary to rejuvenate the institution. This is what is behind the huge recruitment drive that is underway in almost every level of government and in almost every large institution as these bodies try to come to grips with how to replace the wave or retiring Baby Boomers who are about to exit the workforce (if they get to realize their Freedom 55 dreams).

In the Rest of Canada this reality I think has been driving and will increasing drive two important trends: first, how do we bring more highly qualified, eager, skilled people to this country to fill the positions the dearth of Gen X, Y and Z's will leave empty? Second, how do we ensure that the potential of every person born in Canada is realized and put to its best use? Our reaction to the first trend I see as differentiating us from the United States -- living in Western Canada is to live in a world of immigration. Out here we want people to come and will do almost anything to make them come -- whether it be from Newfoundland (go to Fort MacMurray sometime) or China (go to Richmond). We are working to pull down barriers to immigration and will not buy into the xenophobia which seems to be gripping the United States.

We are just begining to come to grips with the issue but one thing that I think this will eventually motivate -- particularly in an increasingly bi-national country -- is a re-evaluation of the policy of official bilingualism in the Federal civil service. The Federal civil service now is in a toe to toe fight both with the provincial public sectors and the private sector for highly skilled workers. It can compete with the latter on certain benefits (eg pensions) but not its openness to skilled workers who do not speak French. The Federal civil service cannot compete with the provincial public sector on either of these two criteria. If you are a highly skilled unilingual young person looking for a career in the public service the provincial public services pay better and do not have the bilingualism obstacle to advancement. Moreover, for the reasons noted above, it will be at the Provincial level that we will increasingly see the new ideas and initiatives occur.

In terms of attracting people to immigrate, a requirement that one learn and speak French is another obstacle that will also affect the choice of skilled migrants. While mandarin is rapidly coming up on the outside, at present English remains -- so to speak -- the lingua franca of business, international travel and international institutions. It certainly remains the language of entry for the United States.

Quebec has benefited greatly from the era of official bilinualism and also the Trudeau era which created a real feeling of commitment in most of the Rest of Canada to take steps in our day to day lives to make Quebec an integral part of Canada. The fact that my daughter is in French immersion rather than Mandarin or Spanish immersion is a testament to this fact. This attitude has made it easy for young Quebeckers to have options throughout Canada in the Federal civil service and in industry and it has increased the pool of talent available for Quebec industry to draw upon. If we were to retreat from this bilingual vision of Canada to the pre-1968 bi-national vision (that is a French Quebec and an English Rest) Quebec's youth would face fewer French options outside of Quebec and Quebec would face an increasingly impoverished pool of talent to draw upon outside of its borders. It would also lose the advantage it has enjoyed of having its youth gain experience in the broader Canadian public service before returning to Quebec.

Recently Pauline Marois suggested that encouraging bilingualism would be good for young Quebeckers and was almost pulled to shreds by the Quebec pur laine elite. But she was right and remains right. Bilingualism both inside and outside Quebec benefits Quebec -- it is a culture that allows Quebec to maintain its French culture while giving its youth the ability to work in a larger world both in their language and in English. If that world is narrowed -- say by the Rest of Canada reverting to unilingual English -- Quebec youth will be faced with a different set of choices. They will increasingly have to master English and work in English to do anything outside of their home Province and those who don't will find their options limited to Quebec.

Personally I see the rest of Canada of Canada continuing to differentiate itself from the United States. It has been impressive how we have remained tolerant, open and experimental in the face of a range of issues including terrorism, globalization and racial tension. We have seen ourselves become more diverse, more asian and more aboriginal and we have adjusted and, I think, come out richer. Quebec, depressingly seems to be going in a different direction. While Montreal remains one of the most exciting and diverse cities in Canada, the Rest of Quebec is becoming increasingly xenophobic, anti-English and anti-migrant. The economic realities that have come with that, ironically, I think are making Quebec the province most in danger of being Americanized (witness the recent health care report). This course of action will, in the end, doom Quebec. If Quebec turns into a true French island in a unilingual (or bilingiual Spanish-English) North America it will slowly lose its youth, fail to attract the best of the world and find its language under an increasing siege.

What has to change? Well the Rest of Canada has to continue its engagement with Quebec. That is a given. On the other hand, Quebec has to revive its engagement with Canada. If Quebec continues to send its best and its brightest to the Bloc Quebecois and fails to generate another Trudeau or Laurier it is hard to see how the present drift will end. English Canada wants to see a French leader who is engaged with English and French Canada and inspires both but if no leaders are forthcoming from Quebec English Canada will not merely fall into some depressive funk and drift into the United States. Instead I expect we will strike off in some other direction and in due course leave the experiment of a bilingual nation behind.

White Bread

It is funny how the phrase "white bread" is advanced as something of an insult suggesting bland, tasteless and uninteresting. Since a bit before Christmas I have been succumbing to the temptations of white bread (better than many other temptations) and have become ever more conscious of what misconceptions are built into this insult.

White bread is the essence of simplicity -- white flour, yeast (perhaps a sourdough starter), salt, sugar (maybe honey) and water. Oh yes, time and heat are also essential ingredients and I expect it is the shortage of the former in the modern world that actually makes it hard to find homemade bread that often. The ingredients are easily available and while the flour will usually not be local it is hardly exotic.

Out of these few ingredients there are a multitude of beautiful sensations. The first -- if you are lucky enough to have a baker in your home -- is the smell. The smell of freshly baked white bread is irresistible. It fills a house with the smell of sweetness and warmth and if we scratch beneath it, it is likely the Platonic ideal of the smell of home, or at least the smell of a happy home.

Next is the look and the texture of the outside. White bread -- whether baked in baguettes or in ordinary loaves -- has a wonderful varied brown colour that embodies the look of "cooked". When you are struggling through cooking a roast, a chicken or even some vegetarian (god forbid) dish and want a perfect outside crust on it, guaranteed that what your mind is using as a standard is the colour that is on the top of a perfectly baked loaf of bread. In addition there is the sensation that comes from the crispness of the outside combined with the softness of the overall structure which evokes the concept of perfectly hidden treasure -- you have to work a bit to get to the reward: but not too much.

Finally there is the interior of the bread itself and its taste. If well made that taste -- both the flavour and the texture -- is the taste of comfort. It pleases without testing. It is welcoming of other flavours or it has rewards that come from eating it alone or, perhaps, with a swipe of cold butter. It is good warm out of the oven (don't cut too quickly though -- you will ruin the crumb), or cold, or toasted. It is forgiving in a way other dishes are not and will bend to your taste and your mood. It is in this last way that it dramatically differs from the other breads that are out there -- ryes, whole wheats, pumpernickels and so forth all have their charms but they are choosy about how they are served and who their companions are. They are good choices when you want the challenge -- but they keep you on your toes.

There is one aspect of bread which is only enjoyed by the baker -- there is little as satisfying the world of cooking as making bread. Simple ingredients -- yes -- but demanding technique which carries with it the therapeutic experience of kneading. There are many things to get just right in order to have the bread come out just so and those things are learned by experience (as I learned when I discovered that boiling water kills yeast -- and unleaved bread made from an ordinary recipe is very unsatisfying) or by careful guidance from another. I still have my grandmother's old recipes, her notes and her hints about how to make white bread of various sorts. At the end the simplicity of white bread belies and hides the effort, technique and care that has to go into making it just so.

White bread -- an insult? Indeed.

Canadians on a Buying Spree.

An interesting article in the New York Times today (January 20, 2008) about how United States companies are being gobbled up by foreign investors. The front page article raises the spectre of foreign sovereign capital pools buying up major United States assets (do we want China owning our ports) but there is an interesting chart showing the actual numbers inside. Canada shows up in a surprising way when the real numbers are actually revealed.

In 2007 Canadian investors were the largest foreign investors in the United States purchasing over $65.6 million worth of assets. This is to be compared with $28.6 million worth of US assets being bought by Canadians in 2000. By contrast the United Kingdom bought $45 million worth of assets in 2007 compared with $77.1 million in 2000.

It is heartening to see that foreign investment stories are not just about Canada being hollowed out by other countries -- perhaps Canada is doing a little hollowing of its own.

The Role of Sanctuary

There has been a fair bit of press lately out here in Lotusland about the right of various religious groups to declare their churches/temples as sanctuaries for persons who have exhausted the refugee system and are facing deportation/removal from Canada.

For the most part this is a bad development in our society because churches and church groups have taken to asserting this "right" not as a means of really effecting change -- for example by triggering a legal test case -- but instead as a completely independent assertion of a right independent of the rule of law and democracy.

As a tool for triggering social change the use of sanctuary is understandable. On that approach the state is expected to intervene and the churches welcome them -- preferably with a large number of cameras and lawyers around to trigger both the democratic debate and the legal debate. The giving of sanctuary in this model is the approach to the legal and democratic process rather than the assertion of right to be free from or outside of that process.

Unfortunately, what sanctuary has appeared to have evolved into is more of a modern variant of the medieval law that allowed fleeing criminals to hide in the sanctuary of churches and be exempt form arrest or detention by legal authorities for so long as they were able to hold out (which depended -- as does the modern right -- on how long people were willing to bring them food). This right became an affront to the rule of law over time and an embarrassment for many churches (picture the stench of a large collection of unwashed criminals hanging out around the edges of the altar of your local church for weeks on end).

The evils of the modern version of sanctuary should be obvious -- which churches and which crimes? Would it apply if it was the Church of Scientology wanting to protect one of its members from Canadian charges of tax evasion? How about the Catholic Church if it wanted to oppose the extradition of a person wanted for shooting an abortion doctor in the United States? How about a mosque that wanted to prevent the deportation of a person wanted in the Madrid bombings? Where do the poor atheists go? We have no established church here in Canada and it is not so easy to sort these questions out as one might think at first.

The Canadian immigration and refugee system has its good and bad points. Anyone who tells you that it is devoid of process or any sense of fairness is out of touch with reality and should have a good hard look at what really goes on in other countries. On the other hand, anyone who says that the system is without systemic flaws need only read Justice Phelan's recent decision in the Federal Court about the safe third nation rule (a case interestingly enough brought by the Canadian Council of Churches).

What will be inescapable however is the fact that at a certain level immigration and refugee determinations will have to be made at an individual level, indeed, this is just what has been fought for over the years (that is, no blanket rules like "no Chinese" or "no communists"). Any process which does this will inevitably produce results that some people will like and some people will reject -- that is the nature of independent adjudication: someone makes a decision when people are unable to agree amongst themselves. What we cannot tolerate then is the idea that superimposed on this is a veto by churches who can claim the right to make their own decisions that we all have to live with regardless of their democratic or constitutional legitimacy.

The churches of the west have a deal with the state: we leave you alone; you leave us alone. Churches are free to advocate for change. Churches are free to speak out. Churches are free to use their money to support court cases. Churches can bring court cases. Churches are free from paying taxes on properties worth millions of dollars. Moreover, they are free from state supervision of these activities. But they are not empowered to rule us, make laws or exempt citizens from the laws. These are values we cannot lightly set aside and unless the churches want to accept a move toward a legal system where they are supervised (for example, what processes do they have in place to pick who will get sanctuary -- are they fair? do the claimants have a right to a hearing? how about a lawyer paid for by the church?) perhaps they may not want to claim the power they have been claiming.

Yolande Lono

Yolande Lono, the mother of one of my oldest friends passed away this week in her 82nd year.

Mrs. Lono was an elegant french Canadian woman transplanted to St. John's with her husband, who moved there from Quebec to establish a roofing business. I don't know what she thought when she first arrived -- particularly since she spoke poor English at first and St. John's was (and remains) an very anglophone city -- but she remained there for the rest of her life and was an active member of the community.

Mrs. Lono and her family were actually instrumental in getting me to think as a young child about what is good about Canada and Newfoundland being a part of it. St. John's in the 1970's was a great place to grow-up (subject to not being a resident at Mnt. Cashell) but it was a very homogeneous city deeply coloured by Newfoundland's anglo-irish culture.

In that setting Mrs. Lono with her french accent, her Franco-Canadian approach to life and her endlessly different and interesting cooking was a hothouse flower. It was fun to be around her place because it was different and interesting (well also because my pal was there). Part of what was interesting about Mrs. Lono was that despite the fact she became very much part of Newfoundland and St. John's she equally remained a part of Quebec. She frequently visited there, maintained her family connections and talked about it. She did not do so with regret or longing in the way that an immigrant to another country or an exile might -- instead it was just another part of her home.

It is telling that two of Mrs. Lono's sons have remained in Newfoundland and another one is returning (indeed may have already returned as I am behind on the news). These sons have contributed richly to St. John's life in turn in many different ways -- including an active involvement in municipal and provincial politics. They too have gone on to have children who have also become part of the fabric of Newfoundland and its people. Thus Mrs. Lono's contribution to her adopted Province carries on.

This I think is the essence of what being inside a diverse country is all about -- one can leave home and experience something different without actually abandoning home. It is fundamentally different psychologically and not just legally to emigrate -- there the cut is more serious, more permanent.

Fare thee well Mrs. Lono -- it has been many years since I have been at your Christmas Eve soirees but I miss them still and think of them and you fondly.