Show Some Spine Jim -- Stand Up to the Provinces

The Globe and Mail again reported on Jim Flaherty's support for a single Canadian securities regulator (article reproduced below). This is, as I have said before, an excellent idea for Canadians. It will increase protection for the public (who will be served by an effective, national regulator) and lower costs for businesses coming to Canada (who will only have to deal with one regulator and one set of rules). Taxpayers even win as ten bureaucracies are replaced with one.

But it is not going to happen if Ottawa waits around for the Provinces to voluntarily give up control over their regulatory empires.

Our Constitution gives Ottawa power over interprovincial and international trade, as well as matters of peace, order and good government, and the time has come for Ottawa to use these powers. Ontario -- which deals with the lion's share of the securities industry in Canada anyway -- has said it will be onside. Industry will be onside (except for a few provincial analysts who benefit from contracts from regulators) and the public is not going to rebel against this one. Even the Liberals and the NDP will fall in line -- the only real opponents will be the BQ and PQ.

Time to show some spine Jim and get on it with it. Pity you waited until so far into your minority mandate to do it.

Flaherty beats single-regulator drum
NORVAL SCOTT

With files from reporter Katherine Harding in Edmonton

August 31, 2007

CALGARY -- Federal Finance Minister Jim Flaherty has again sharply criticized Canada's provincially run system of securities-law enforcement, calling the current structure inadequate and saying that a national regulator is desperately needed to protect investors and improve Canada's reputation abroad.

"We are the only industrialized country without a common securities regulator," he said yesterday in a speech to the Canada West Foundation in Calgary.

"For many, our system is seen as cumbersome, fragmented, slow and repetitive, and lacking the proper tools of enforcement."

Mr. Flaherty has warned several times this year that investors are ill-served by the current patchwork of 13 provincial and territorial agencies charged with enforcing securities law, but all of Canada's provinces and territories - except Ontario - have refused to get behind the minister's drive for a single securities regulator.

Print Edition - Section Front
Enlarge Image

Instead, those provinces have moved ahead with their own "passport" system of regulation, where they retain separate securities commissions but recognize approvals granted by other participating jurisdictions.

However, the passport system does "not go far enough or fast enough" and is "simply inadequate for where Canada needs to be," Mr. Flaherty said, noting that Canada still has 13 separate securities regulators and a lack of national co-ordination.

The minister was scathing in his view of how Canada's security regulations are perceived internationally, saying: "Quite frankly, our reputation abroad is not strong - and I'm putting it mildly - with respect to securities enforcement."

While the provinces haven't given the national regulator proposal their blessing, they have said they're not opposed to a new panel that Ottawa is launching to flesh out the idea. Mr. Flaherty said he expects to announce the composition of the expert panel shortly.

Alberta Premier Ed Stelmach told reporters in Edmonton that Mr. Flaherty's latest plea won't do anything to budge his province's hard-and-fast position on the issue.

"I've agreed with other premiers, especially [B.C.] Premier [Gordon] Campbell, that we are committed to the passport system. Our position has not changed," he said.

Bill Rice, chief executive officer of the Alberta Securities Commission, told The Globe and Mail that the passport system does address the "fundamental complaints" of securities regulators, as it "substantively harmonizes laws across the country so participants need deal with only one regulator."

However, he conceded that Ontario's non-participation did pose problems for the passport system.

Electoral Fairness in the West -- At Last

The British Columbia Electoral Boundaries Commission delivered its report to the legislature yesterday recommending a major redistribution of electoral seats from rural to urban areas. This is a long overdue process which will do much to enhance democracy in the British Columbia and help the government of British Columbia implement policies that reflect a 21rst century province rather than a 19th century province.

There is a great myth of Canada as a rural or northern nation. In fact, for the most part Canada is an urban nation and its modern face is largely to be found in the cities. While our economy is still highly dependent upon resource extraction, there is an increasingly vibrant and diversified general economy built around the financial industry, service industry and manufacturing industry. Furthermore, the bulk of our population is located in major urban or sub-urban areas.

Despite this, the practical reality is that there are significant differences in the weighting of our votes across Canada and within each of the Provinces so that the votes of urban citizens are significantly discounted compared to the votes of rural citizens. This discrepancy, which dates back to the earliest days of Canadian history, has been endorsed as a permissible part of our democratic culture in what I think of as one of the great lost opportunities for the Supreme Court to enhance democracy in Canada. In a reference concerning the electoral boundaries in Saskatchewan, the Supreme Court of Canada held that the protection given to the right to vote does not imply one person one vote. Instead it allows for electoral boundaries to be set so as to allow for significant differences in the populations of ridings.

The difference is most dramatically seen at the federal level. For example, the electoral district of Labrador has a population of approximately 27,000 people. By contrast, the urban Vancouver riding of Vancouver-Kingsway (which includes some of the more socially challenged areas in the nation) has a population of close to 115,000. While these numbers reflect total population there is no reason to expect that the voter population is radically different in terms of ratios (although there will be more non-citizens in Kingsway). Thus, if the ratios are even close to true, a vote in Labrador is worth over four times a vote in Kingsway.

Traditionally this has been justified on the basis of the physical size of a given riding and the rigors attached to traveling to see all constituents. By contrast, the argument goes, a legislator can walk around an urban riding in a few hours. This argument rings hollow in the modern era for a few reasons. First, even in rural ridings it seems that most of the population is centred in a few central locations within the riding. Second, a great deal of modern communication between elector and representative occurs through electronic media such as the telephone or the internet. Third, the reality of most urban ridings is that the ease of walking around is vastly counterbalanced by the burden imposed by the number of people and diversity of peoples and problems found in the complex urban environment. This is not to say that life is harder in the city necessarily, but it is to say that it certainly is not easier.

Urban and rural ridings certainly have different needs but we should not address those needs by undermining core democratic principles. If it is harder to represent phycially large ridings then figure out ways of making that representation easier: allow for more contituency offices in more towns, assist in developing on-line forums or give higher travel budgets to the legislators from those areas. These get at the root of the issue without saying that the vote of the city dweller is worth less than the vote of the rual inhabitant.

Lawyers and Their Image

The image of lawyers is a complex and peculiar issue. I always say that the ultimate test of what the real image of the lawyer is to see if parents have yet gotten to the point where they weep and hide the pictures of their children when it is announced that the acceptance to law school has arrived or the call to the bar ceremony is to begin. While I know many children who have had their parents denounce them for their choice spouse, sexual orientation, tattoo or career, I have yet to run into anyone who says "my Dad hasn't spoken to me since I went to law school and my Mom has to call me in secret and she always cries."

The standard comments that people make about lawyers though are actually quite understandable. Except for buying a house most people have contact with lawyers at the absolute worse times of their lives: their marriages are falling apart, they have been badly injured and need to sue, they are being sued, they are going broke, their house renovation has gone poorly and so forth. What makes it even worse is that generally the lawyer has to deliver bad news to the ears of the client even when the case is good: "yes Mrs. Smith, you will get half his income, half his house and the Spode China but judge will not have his member cut off for sleeping with the secretary -- the judge doesn't care if he slept with the secretary."

In a sense our image as a profession reminds of an old lady I knew in Newfoundland who refused to go to the (then) new Health Sciences Complex in St. John's. She said, "people die there." Of course they do -- it is a hospital full of sick people.

On top of that we charge for doing all of this.

Even for people who never have to deal with the sharp end of law in all their life these images are reinforced in various ways. In the case of the litigators (who constitute actually a small part of the profession but really establish the image in the minds of most people) the negative impressions that people have are amplified in the retelling. The unhappy spouse who cannot get their lawyer to promise them vengance rather than a share of the property talks to his/her friends about how heartless or unsympathetic their lawyer is when the reality is it just the lawyer doing the job -- telling the client what the law is not what we might wish it to be. The situation is even worse when the story is being told about the lawyer who cross-examined them.

A case in point is my first trial in the Superior Court where I was allowed loose to cross-examine witnesses. We were defending a doctor who had performed back surgery. The surgery had apparently gone well but the patient subsequently developed a complication called cauda equina syndrome (you do not ever want to hear your doctor say, "I am sorry but you have cauda equina syndrome"). The patient described the feeling he went through on a near constant basis as the sensation of having a 'hot poker rammed up' his rectum. Needless to say the patient was not happy and said that either the surgery had been done poorly or he had not be warned of all material risks.

The expert evidence was unequivocal that no flaw in technique or decision could be identified. My leader demolished the Plaintiff's expert in cross-examination and I was left with the job of dealing with consent. The clever idea I had was to ask the Mr. X. if he had been afraid of having the surgery because of the anesthetic and I successfully established (1) that he was terrified of the surgery, (2) that he knew that there was a chance that surgery could kill him or leave him brain damaged, (3) that he thought both those options were worse than the hot poker and (4) that he had the surgery anyway. Given this the judge accepted that even if Mr. X had been told of the distant chance of cauda equina he would have had the surgery anyway so the consent case failed because it would have made no difference if this risk had been explained or not (the Plaintiff failed to prove causation to use the legal lingo).

To the lawyer this is a great story about a clever cross-examination with interesting facts and a happy ending but looked at from the point of view of the two clients this is nothing funny. From Mr. X's point of view he has had a terrible outcome -- he likely still suffers to this day -- and he has to feel that he was tricked by a clever punk kid into sinking his case. Everything that was done to him in that courtroom was legally and logically correct but it defies the intuition that the hot poker is not right. From Dr. Y's point of view he was dragged through a process which took years to establish what he knew from day one -- he had done a good surgery which had had a rare but serious complication that was caused by circumstances not incompetence. Again, what he saw was a lot of time get burned and ultimately no clear vindication because he had to sit through the accusations of incompetence with no personal rebuttal. From Mr. X's point of view we were high paid tricksters who pulled the wool over a judge's eye's; from Dr. Y's point of view we were dalliers who failed to adequately crush this complaining patient with all due dispatch.

These thoughts apply even to lawyers who do happy things -- like help people buy their homes. This is a transaction that occurs every day likely dozens of times a day across Canada. Subject to the effects of title insurance, each of these transactions involves a small piece of legal work which is designed to make sure all aspects of the transaction are properly documented and the documents properly registered. In some jurisdictions the lawyer also has to do a fair bit of work to check title to make sure person selling the house actually owns the house. This little peice of legal work typically adds anywhere from $300-$600 to the cost of buying the home. The problem for the image of lawyers is that if the job is done perfectly then the client sees absolutely nothing happen: that's that whole idea -- the lawyer does the work so that nothing will ever go wrong. Unfortunately for the image of the lawyer this looks to the client like an extra transaction cost that serves no purpose other than to feed the great gods of the legal profession.

In the end lawyers are in the business of managing conflict. Either we manage affairs so as to avoid it, which often involves reminding people of downsides to happy things that they do not want to hear about, or we manage the disputes when they do occur, which puts us in the midst of people's personal hells. Which ever is the case we generally tell people things they do not want to hear and often have to frustrate their dreams, ambitions or hopes. But in doing so we also solve their problems or better still avoid greater problems. We help people understand things that are difficult to grasp, particularly in the heat of moments of emotion, and we steer them clear of the shoals. If you want to see what lawyers do go down someday to the local chambers court and watch a few hours of the unrepresented parties in matrimonial disputes try to deal with their issues in front of the judge without legal assistance. For me at least, the reward is not in the type of image that some professions have but in the challenge that comes from figuring out the problem and devising a solution that works effectively (oh yes, and there is that small matter of the fee, my invoice will follow).

Polygamy -- The New Social Issue?

As I find myself traveling on a Saturday morning (which is unusual for me) I read both the Globe and the National Post (equally unusual) this morning. When I read the Globe I was somewhat irritated to read Margaret Somerville's opinion piece on how polygamy is a necessary consequence of having accepted same-sex marriage. The piece was irritating in that she trots out the old arguments that she effetcively made in her evidence in the same-sex marriage cases (that is, marriage can not be separated from procreative intent) and suggests that the rejection of that in one context leads to the conclusion that polygamy must be accepted. More on that idea in a moment.

What surprised me though was to look at the front page of the National Post and see that they too were carrying an article on the de-criminalization of polygamy. One paper carrying the issue is one thing but two major (for Canada) papers has to make one think that this is actually going to become an issue.

Personally I think this is odd in that unlike the same-sex marriage debate there does not appear to be any substantive issue -- that is except for isolated pockets of cultlike behaviour there does not really seem to be a genuine social issue. That is, the debate that the papers seem to be encouraging looks like a solution in search of an issue.

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.


___________________________________________________________________

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."

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.