Why Does Electoral Reform Fail?

Since I have been a teenager the issue of electoral reform has been widely talked about. The fact that throughout Canada we have had governments, at both the national and provincial level, win massive majorities in situations where their share of the popular vote has been far less than their seat total would suggest is, to say the least, troubling. There seems to be a general feeling that there has to be some move toward some form of proportional representation in our electoral system and yet, when offered the choice, the electorate has rejected the process (or at least failed to rally together to a point where the reform could be approved). Why is this?

The failure is principally a failure of political leadership and, I suspect, an intended failure of policitical leadership.

First, it is important to recognize who the principal beneficiaries of proportional representation would be -- the smaller, issue oriented parties such as the Green's and the NDP. The losers would be the major centrist parties (the Liberals and the Conservative family of parties) and likely the BQ. Thus, the parties that have traditionally benefited the most from the first past the post system are the ones that are in the positions of leadership when these issues are put up to a vote. They recognize -- even if they dare not say it in public -- that once proportional representation comes into effect the world as they have known it comes to an end. It is perhaps for this reason that we see none of these governments merely moving to implement proprotional representation (which they all could do) or setting realistic approval threshholds.

Second, these two experiences in attempted electoral reform also put a lie to the idea of randomly chosen 'citizen democratic assemblies' as an alternative to the elected legislatures. In British Columbia the government established the Citizen's Assembly on Electoral Reformwhile in Ontario what was chosen was the Ontario Citizen's Assembly on Electoral Reform. In both cases these bodies consisted of randomly chosen citizens who met a few times every few weeks, went through education processes with academics, held public information sessions and debated different electoral reform options. In each case they came up with partial proportional representation systems which resulted in overall proportional representation while retaining the local representation element of the existing system. In each case the proposal was then put to a referendum and in each case the referendum failed to meet the required threshhold for approval.

Now, unless you are an immediate family member of one of these assemblies, I defy you to name a single member of either of them. I doubt any of you could now or could have at the time. I also doubt (except for any of you journalists reading) that any of you even watched a single session of either of these assemblies. For the most part they took place out of sight and out of mind -- even for the political junkies. Why was this? My own view is that this invisibility flowed from the very way in which they were put together -- throuh random selection of citizens without regard to whether those selected were or were willing to become community leaders in the way that ordinary politicians must.

Part of my reason for believing this is based upon Newfoundland's own experience with a Citizen Assembly in the 1940's. In the mid-1940's, just after the Second World War, Newfoundland was faced with having to make a decision about what form of government it wanted to have. It could have chosen to remain a separate Dominion, remained a non-demoncratic Crown colony, joined Canada or joined the United States. To help make the decision (and as a precursor to to referendums) an elected National Convention was convened to debate the options. This National Assembly galvanized the colony. People listened on the radio, read about the debates in the paper and attended the debates in person. My father, who would have been about 16 or 17 at the time has told me about attending at watching the debates.

Unlike the assemblies of nobodies that Ontario and British Columbia assembled, the National Convention contained a range of real leaders from throughout the colony. Some were major provincial figures, while others were minor local leaders but they all were characterized by the fact that they had to be willing to come forward and stand for election. Moreover, when they spoke they spoke not because their name had been randomly drawn off a voters list but because their local communities had chosen them to speak for them. Thus their voices mattered in a way that I would suggest the voices of the members of the modern assemblies did not.

Another reason the electoral reform proposals failed was the refusal of any political leader to really make them an issue that mattered once they escaped from the clutches of the citizen assemblies. In each case the elected political leaders of Ontario and British Columbia essentially just took the proposals and dumped them on the public's doorstep and said 'here it is, vote for it if you like it.' None of the leaders made electoral reform the centrepiece of their campaigns or strongly advocated for adoption of the proposed reforms. In neither province did the referendums become central issues and, not surprisingly, they both failed to spark public interest or increased voter turnout. Equally unsurprisingly they both then failed.

Again Newfoundland provides a counter-example as to how a referendum can play out where the political leadership is engaged. In the 1990's Newfoundland went through two referendums to decide on the fate of the publicly funded parochial school system. The first of these was advanced by Clyde Wells, the second by Brian Tobin. The issues were engaged politically and legally and there was a widespread debate within the Province. The second referendum resulted in a 73% vote in favour of abolishing Newfoundland's traditional parochial education system. A similar lesson can be derived from the active and lively debate around the Charlottetown Accord where the outcome was a result of an active debate in which politicians and public leaders were engaged on both sides.

Electoral reform has its pros and cons and there are benefits to the first-past-the-post system that not acknowledged. The reform of that system requires serious engagement from our political leaders and more than the desultory treatment that it has been given in two provinces so far.

Waterboarding? Time for a Reality Check

Who would have thought that that the principal moral legacy of the second baby boomer president would be a stout defence of the use of what most of us would think of as torture? In the 1970's and 1980's there was a lurking feeling that the upcoming generation, hippies and flower children all, were going to cause nothing but havoc as they came to power and brought their left-wing, environmental, soft-on-the-bad-guys values to the table. The debate was not on what these young pinkos would do (that was obvious) but on whether the advent of flower power in office would be good or bad. All of this goes to show that it is extremely hard to predict the future.

Let's take, for example, a left-wing villian, say, Ronald Reagan, and picture him or any leader in his generation making an argument for waterboarding (we all know what waterboarding is don't we -- you know, tying a person to a board and immersing their head in water until they almost drown -- then pulling them out and repeating as necessary). Ronald Regean would have condemned waterboarding, said it was something done by our enemies (the godless commies), someting not done by our friends (except possibly by a few rogue elements) and certainly not something ever done by the United States or any civilized, western country. Even if American allies or friends were waterboarding prisoners, at least Ronald Regean would have lied about it -- or at least ensured that he had plausible deniablility around the issue ("I'm shocked, truly shocked"). For those us of leaning to the left or the libertarian end of the spectrum what was shocking about that era was the mendacity of that era -- everyone knew Augusto Pinochet and his clowns were torturing people, his supporters just lied about it. The same can be said on the left, Uncle Joe was torturing thousands, but the hard left just pretended it was not happening.

George Bush though is a different species -- he does not deny waterboarding (well, he avoids admitting it). He just denies it (and a number of other nasty things) is torture at all. On this theory, put forward by lawyers like John Yee and Alberto Gonzales, almost drowning a person is not torture because they don't die and they have all their limbs afterwards. Indeed, for Mr. Bush, waterboarding in the name of freedom is a virtue -- the American people expect us to keep them free from terrorist attacks after all.

This can only be described as insane. The common law recognized torture as an unreliable method of obtaining a confession almost three hundred years ago -- that is why confessions extracted by force have been excluded from court: they are unreliable, not immoral. The political leaders of the first three quarters of the twentieth century also recognized the real strength of the west lay in setting an example by following the rule of law, creating an environment free from arbitrary state action and protecting human rights. While there were differences about method, there was a commonality of vision and that vision would have excluded approving of waterboarding in the name of freedom.

Perhaps though the real sense of why the baby boomers were viewed as having poor potential for leadership was right. I am sure that when the parents and grandparents of the 1960's and 1970's looked at the culture of youth their underlying thought was "have they no shame?" For many in looking at Bill Clinton I am also sure that this was their principal reaction to his messy personal life. What is sad is in watching George Bush and his merry band of torture justifiers is that it is this thought that comes to my mind -- waterboarding for freedom? Do you have no shame? The problem is this is Mr. Bush's policy not his private life and there are real people being tortured.

This Should Be Interesting

The poor police, they must be longing for the good old days.

A few years back the poice did their jobs based upon the assumption that has long as they did not randomly shoot a passerby for fun (in which case they might be charged with murder) they really owed no-one any particular duties that they could ever be held account for (except by firing).

This changed a few years back when a Court in Toronto held that the police could be held responsible by the victims of a rapist where the police did not take steps to warn potential victims of a danger.

Now the Supreme Court of Canada has held that the police have no particular protection from, and can be liable to, innocent suspects who they negligently investigate. Thus an investigation that is negligently carried out and thus results in harm to a person can give rise to a law suit against the officers (and their employers) who carrried out the faulty investigation.

While in the particular case at hand the Court held that the investigation was up to snuff, it is only a matter of time before a police force is held liable for a negligent investigation and the harm caused. Where this will get really interesting is where the police are faced with balancing their duty to potential victims against their duty to potentially innocent suspects. Fundamentally though this is a good ruling in that it affirms the idea that people who are given significant powers are not put above the law just so they can be free to use their powers -- like all of us they have a duty to act reasonably as called upon this circumstances. As the Chief Justice in the majority judgment said:

3 I conclude that police are not immune from liability under the Canadian law of negligence, that the police owe a duty of care in negligence to suspects being investigated, and that their conduct during the course of an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. The tort of negligent investigation exists in Canada, and the trial court and Court of Appeal were correct to consider the appellant’s action on this basis. The law of negligence does not demand a perfect investigation. It requires only that police conducting an investigation act reasonably. When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.

The Enormous Cost of Tranportation

An parathentical comment in Neil Reynolds' column in the Globe and Mail today brought home to me how difficult the issue of really controlling carbon emissions is going to be (not that I did not think it hellishly difficult already). The column focused on how Canadian purchasers are suckers given the inexplicably higher prices paid by Canadians as opposed to Americans in nearby communities for the same goods. In the course of these comments he notes the following observation:

The [Federal Reserve Bank of San Francisco] observed that, in a globalized economy, distribution costs can be quite significant. It noted that Mattel buys a Barbie doll from a manufacturer in China for $2 [U.S.], sells it in the United States for $10 - but keeps only $1 for itself. The company spends $7 to get the doll to the store shelf where it will be sold.

Thus 70% of the price of the final product goes to paying for transportation of the manufactured good. This of course understates the actual portion of the costs attributable to transportation since the oil needed to make the plastic undoubtedly came from the Middle East, Africa or Russian and not from the oil well situated in the factory's backyard.

This brings how the point (near and dear to the cliamte change naysayers and the Harperites) that really controlling emissions is going to come at a real cost. The transportation of goods -- say wood from Canada to China or tables from China to Canada -- over long distances means burning fossil fuels and a lot of them. You can bicycle to work a lot but unless you are willing to adopt a strictly buy local standard or dramatically reduce your buying generally you are still going to make a significant contribution to the carbon going into the air.

The Tainted Blood Saga Slowly Ends

Madam Justice Benotto yesterday acquitted the accused in the criminal trials brought in respect of Canada's tainted blood scandal. The essence of the charge was simple: these men and companies allowed contaminated blood products that infected seven children into the system after safe and effective means existed both to screen and purify blood products. So why were they acquitted?

As of today only press accounts of Justice Benotto's reasons available but the reasons appear to be what many expected and, in fact, are likely what they should be.

First, of course, the accused did not have the benefit of hindsight. After the fact it is easy to recognize that there was a clear public health crisis being caused by the blood system and also that the new mechanisms that had been introduced on the market were effective and safe methods of dealing with this crisis. At the time there were undoubtedly any number of considerations given the novelty of the techniques, including, did they in fact work?

This last question is not as easy as it looks. Remember that the blood system was providing products that were always in desperately short supply given the need. The tainted blood problem could have been solved instantly by turning off the tap -- stop all deliveries of blood products until a foolproof method of screening or cleaning was devised. Of course the result of this would be to kill hundreds if not thousands of people immediately rather than condemn some of them to the slow lingering miserable death that HIV and Hep-C cause. The same type problem arises if the new test causes too high a rate of false positives. Similarly, how should the decision makers of the day have dealt with the new heat treatment techniques given that they were yet untested in any serious way -- how would everyone have felt if they had undermined the effectiveness of the blood supply or introduced a new problem?

It is a bedrock principle of law, particularly criminal law, that we judge people on the circumstances they were in -- that is based upon their knowledge of the facts at the time and the state of society (that is science, the law, public mores etc.) at the time.

Second, another aspect of the case also likely turns on the question of isolating responsibility in a large system. Decisions in a large system are made on the basis of a large number of inputs from a large number of people. The outcome of a decision making process therefore is hard to isolate as being the responsibility of one single person or even a small group of people within an organization. This of course is distinct from deviant actions such as the decision to steal from the company. Here what were attacked were decisions at the core of the operations of the Red Cross -- how to run the blood system. These decisions arise out of input from scientists and staff about the severity of the problem, the range of available solutions, the risks and benefits associated with those solutions, the evolution of the problem and the solutions, the costs of the solutions, the consquences of acting or not acting. The significance of each of these in turn depends upon things that are beyond the control of particular decision makers -- for example the size of the overall budget and the size of the overall blood supply were externally determined.

This runs then to a second bedrock principle of criminal law -- we only hold people criminally responsible for their personal acts, not for the acts of others. The civil law is different in this regard.

Third, there is the practical problem of proof and doubt. In a criminal case a person must only be convicted if proof has been made out against them beyond a reasonable doubt. If the trier of fact (in this case the judge) is left with a reasonable doubt about any component of the crime -- for example that there was the requisite intention to cause harm or to act recklessly -- the accused must be acquitted. This is true even if the trier of fact actually believes the person 'did it' or is even guilty. This standard is set so high because the criminal law is about punishment of individuals for their actions. We have other systems in our society to help the victims that are not so onerous: the civil jusice system which doles out compensation only requires 'proof on a balance of probablities' (that is 50%+1) while medical care system provides treatment without proof of any wrongdoing.

In the end it seems unsatisfying that there is no villian who can be condemned and drawn to prison to the jeers of the innocent victims and an angry public. But personally I think in this case this is the right result -- the tainted blood catastrophe was a public health catastrophe. While it would be a relief to most of us to be able to say 'it was not us,' the reality is that it was a combination of pubklic attitudes, a lack of urgency on the part of the government and the public and a myriad a systemic problems that led to a disasterous outcome and we all have a hand in it (well assuming we were alive at the time). We should be let of the hook by being able to blame things on a cabal of villians working in a boardroom somewhere.

Electoral Reform on Hold?

A few weeks back I commented upon the Electoral Boundaries Commission Report recommending a major revamp of the electoral boundaries in British Columbia to better assure the 'one person one vote' principle and to ensure better representation of the growing urban areas of British Columbia. On September 13, 2007, the Premier's Office announced that it was pre-empting this reform process by introducing new legislation that would protect existing rural ridings. The Premier's press release said:

“Since the commission released its initial report on Aug. 15, 2007, we have heard clearly from British Columbians that reducing rural British Columbians’ representation in government is unacceptable,” said Premier Gordon Campbell. “We are committed to protecting the number of electoral districts in rural British Columbia. At the same time, the commission clearly identified growing regions of the province where more representation is needed. We will set broader guidelines under the Electoral Boundaries Commission Act to give the commission the flexibility necessary to adjust electoral boundaries and ensure fair and equal representation for all regions of the province.”

If truthfull, the new legislation could achieve the goal of actually standing up for democracy and advancing the one person/one vote principle. If new seats are added to the legislature in sufficient numbers and concentrated in the new urban areas of British Columbia, the same effect will be created, albeit at a significantly higher cost (particular with MLA's recent pay raises). I fear though that given the Premier's last bad experience with electoral reform of this nature, and his recognition that the coastal urban areas are not his party's stronghold, we will see something quite different.

My money is on rural seats being protected and the number of seats in the conservative interior growth areas being increased to recognize their population growth and correct politics. This will be a strong affirmation of the principle of one liberal/one vote -- one non-liberal/0.75 votes.

The Northwest Passage

The Danish National Space Centre confirmed that the Northwest Passage has now opened up and it is now possible to navigate from the Atlantic to the Pacific along the north coast of Canada. Given that the low point of sea ice in the Arctic typicaly occcurs in October, this means that we can look a month or more of navigability this year. If the arctic ice continues to melt at the pace that it has been over the last couple of years (far exceeding the predictions of the even the aggressive global warming models) this will likely mean that the Northwest Passage, after more than a half millenium of fantasy, will become a reality and we should expect to see regular shipping traffic in the near future.

When the Manhattan smashed its way through the Northwest Passage in the 1960's Canada defended its sovereignty in the Arctic by giving it unasked for 'permission' to carry on. Unless the government plans to create the Department of 'I Know You Did Not Ask, But Of Course You May,' we are now going to have to develop a serious position on how what position we are going to take on our sovereignty and, unless we concede the point, figure out how we are seriously going to defend (legally, militarily and practically) that position.

Our opponents in this regard will not be Afghan tribesmen using improvised explosive devices, they will the United States, the EU and the flag of convenience countries like Panama who will be dusting of their claims that the Northwest Passage is international waters open to free navigation by everyone. Moreover, what is at stake in these discussions is not peanuts. The ability to ship from Europe and the eastern seabord to Asia without passing through the increasingly limited Panama Canal is a huge financial prize. For larger vessels (such as supertankers) which would otherwise have to navigate around Cape Horn the stakes are even larger.

Now is the time to start this discussion in a serious way. Personally I believe there are good policy reasons (such as international security and environmental regulation) to assert and maintain the position that the Northwest Passage falls under Canada's sovereign jurisdiction as 'internal waters' however there are alternative positions and the legal nuances are mindnumbing (even for lawyers). Moreover, all of the legal argument in the world will not serve any purpose if Canada is not able to practically enforce its position. Enforcement of Canada's position does not just require military positioning -- no amount of military positioning will work if the United States and the major EU nations are not onside. Canada is going to have to get the powers in Washington and Brussels to engage in this debate and to be able to persuade them. This may require trade-offs in some areas ('yes, we will allow your warships through but not your tankers -- or vice versa'); it may require having a spine in others ('yes, we would love to continue to act as target practice for armed goatherders, but we are re-assigning these troops to picket duties in the Arctic, Denmark ... so we hope you enjoy Kandahar') but it is first and foremost going to involve pulling together a vision and plan for how we are going to look at the Arctic in a warmer time.

This is an issue that streches across party lines. I just hope that the current leadership can see that.