Homelessness, Medicare, Parks and Unintended Consequences

The courts have struggled for a quarter century over whether the Charter of Rights and Freedoms has empowered them to compel the government to enact a social welfare system. This fight is now being played out over the rights of the homeless to protect themselves from the rain and the rights of the citizenry of Victoria to control the use of the public parks. The outcome of this case together with a number of other recent decisions will likely have a profound effect on Canada's social safety net but the nature of that effect may be quite different than anyone involved expects.

In a recent decision by Madam Justice Ross the British Columbia Supreme Court struck down a Victoria by-law which prohibited the erection of even temporary shelter in Victoria's parks. Justice Ross held that such a prohibition, in the face of Victoria's failure to provide an adequate alternative to homeless people, interfered with the security of the person of the homeless who are compelled to sleep outside on public property. Given all of the circumstances around the management of parks and the treatment of the homeless in Victoria she also held that the City could not justify this breach of the homeless persons' section 7 rights as a reasonable limit, demonstrably justifiable in a free and democratic society.

This decision has been appealed by the City of Victoria (a step that is entirely reasonable no matter how politically controversial) and how the courts will ultimately treat this matter is highly uncertain. This is an area of law that is hugely in flux and on a number of matters it has been very hard for anyone to say with any certainty how any particular case will go. However, given the Supreme Court of Canada's decision regarding Quebec's ban on private medical insurance for services covered by the Provincial medicare program (Chaoulli), anyone who says Justice Ross' decision is clearly wrong or unreasonable is not watching what is going on. In Chaoulli the Supreme Court essentially held that if the government is going to ban individuals from fending for themselves in terms of accessing medical care then it equally has to ensure that it has put in place an adequate alternative. Madam Justice Ross has essentially extended this logic holding that if the state is going to ban people forced to sleep on public property from sheltering themselves from the elements, then it has to show it has provided an adequate alternative.

The Victoria homeless challenge has been clearly taken by people motivated by the larger vision of the Charter of Rights and Freedoms being used as a tool to advance social welfare policy. That is, the goal is not to actually entrench camping in the parks but instead to shame the governments into actually moving to provide some real solutions for homelessness in British Columbia. However, the fact that this decision builds on Chaoulli highlights the danger of this course of action from a social policy perspective. In Chaoulli it is evident that the goal of the challenge was not to motivate the government to strengthen the public medical care system, instead it was designed to provide cover for the development of a parallel private system of medical care. While the response to Chaoulli has been slowly emerging there is a real sense that this goal will be achieved. There is only so much money that the public will put into medical care and therefore the Supreme Court of Canada's decision creates room for private medical care to fill the gap.

In the case of the Victoria bylaw what may turn out to be the actual outcome is not the development of a meaningful homelessness strategy but instead a regulated system of camping or tent cities. This outcome has been suggested by Victoria's immediate response post-decision: a small number of new shelter beds and a by-law permitting orderly camping provided that camp is broken by early morning. If the decision is upheld on appeal, my prediction is that what we will see is the development of designated sleeping areas on public land where permanent tent cities may be erected. This will be coupled with bans on sleeping in most parks at most times. Thus the shameful solution to homelessness will become the preferred solution to homelessness. It is a cheap solution and, provided that the tent city is not situated in a well used park or too close to residential areas, the citizenry will not rise up in arms. Moreover, the City will be able to point at Madam Justice Ross' decision as cover for what many will see as an ugly outcome.

It will take time to see if this comes to pass but given the complexity and costs associated with resolving the issues of homelessness (particularly in an economic downturn), I expect it will be a far too tempting option for our governments to resist. It is an outcome that will flow from a well-intentioned attempt to use what is at its core a libertarian document (the Charter of Rights and Freedoms) to implement social policy change. Sadly it will create incentives to continue to decrease the amount and quality of public space available and has given governments an easy out on the homelessness front.

What then should have been done? In my view this proceeding had to be taken -- we are in a homelessness crisis in Victoria and we should not stick our heads in the sand in this regard. However was it the best route? One of the fortunate side-effects of the emergence of Charter is the devaluation of formal political action in favour of formal legal action. That is, many smart, socially engaged people who before would have become actively involved in the formal political process and driven social policy change through that process -- which involves coalition building, consensus building and public engagement -- now head straight to court. The problem with this approach is that the court (by its very nature) can offer only a limited range of solutions and those solutions can often be received in a very hostile manner by the public if the proper political groundwork has not be laid before the decision is reached.

The Supreme Court of Canada has described the interplay between the courts and the political institutions in our society as being a dialogue. Some critiques view this as giving the courts an overblown role in our society by claiming an equal footing to Parliament and/or the legislatures. In my view it does the opposite. Instead of carving out a sacred judicial territory for human rights it gives a real role to our political institutions to decide when and how human rights will be respected -- or limited. But this means that in fighting for human rights in Canada -- including the basic ability not to have to sleep uncovered in the rain (yes, it rains in Victoria), citizens cannot just turn to the courts. The fight has to be equally fought in the democratic realm by means of public persuasion and also participation in electoral politics. This may involve trade-offs, patience and some disappointment but the alternative is the entrenchment of court approved tent cities.

Civil War at the BCMA

The public was given an interesting peak into what is clearly a nasty civil war going on at the BCMA this week as the British Columbia Supreme Court brought an end to quasi-discipline process the Board of Directors was pursuing against one of its own.

The case is interesting from a legal point of view as it shows an increasingly willingness on the part of the courts to intervene in the internal affairs of private organizations. I expect that this is particularly true where those organizations have the ability, through the granting or denial of membership or some other status, to have a real effect on someone's rights, reputation or overall standing in the community.

From the public point of view this case is interesting because it gives a hint about the debate that is going on within the medical community about how doctors should be paid and, perhaps more importantly, what the role of the family doctor/general practitioner is in our medical system. This is an incredibly important debate as one of the most important differences between our medical system and the American system is the importance placed upon the delivery of primary medical care rather than specialist medical care. This approach in Canada has, I expect, led to overall better levels of health through early detection of emerging medical issues and somewhat better coordination of health care services than can be achieved through the more silo-like approach of specialists. How does this tie in with this case? Well, the BCMA is effectively the union for doctors when it comes to negotiating with the government and anything touching on the way gp/gp's are paid has consequences for how we all get medical care.

Rex Murphy and Human Rights

Rex Murphy has been a fixture at CBC since the 1970's. I remember him starting to find his voice as an overinflated thesaurus on the local CBC broadcasts in Newfoundland. Since then he has gone on to ever greater podiums from which ever more polysyllabic orations can be poured out over the ever grateful Canadian masses. The latest target of this silver tongued pedant is Christine Lynch (Globe and Mail, November 15, 2008).

Ms. Lynch is the Chair of the Canadian Human Rights Commission. Now what evil has Ms. Lynch, the publicly appointed head of the organization our Parliament created to protect human rights, committed? Well it seems that she had the audacity -- the absolute cheek -- to show up at the Cenotaph on Remembrance Day to lay a wreath to honour the dead of the various wars that ordinary Canadians have fought in over the last two hundred years. Mr. Murphy thinks it is odd that she should show up because Canada's human rights commissions "offending the very core of the concept" of human rights.

Now what is it that Canada's human rights commissions do that so offends Mr. Murphy? Surely it must be that they keep the racially oppressed from accessing schools? Maybe it is that they foment hatred against oppressed minorities (like Rhodes scholars)? Perhaps they have punished fearless reporters for bravely reporting on the government? Well, no, not really, it seems that what they have done -- wait for it everyone -- is allow people to write them letters and then look into what those letters say. Yep, that's it folks. Christine Lynch's great affront to the Canadians who fought in two world wars and a number of other smaller battles is that she opens her mail, reads it and tries to make sure that she understands what the ordinary Canadians have written to her is taken seriously (even if their complaints are ultimately dismissed out of hand without a hearing).


At the heart of Mr. Murphy's complaint (though he mentions it in just one line) are the complaints launched against Mark Steyn or Macleans by various Muslims who were offended by one of Mr. Steyn's more vitriolic pieces on the future of West in the face of the Muslim onslaught. In each and every one of these cases here is what happened -- somebody at the human rights commission opened the mail, read the letter, invited Mr. Steyn and Macleans to have their say before doing anything and then dismissed the complaints without a hearing. There was no trial or prosecution. There were no jackbooted raids by hordes of feminist or Muslim stormtroopers. All there was was a request that boiled down to 'do you have anything to say about this?' Even though Mr. Steyn and Macleans essentially said 'buzz off' and then launched a year long campaign in the press about the depths of their persecution, the commissions decided that no action was needed.

Mr. Murphy sees the courts as the remedy for protecting 'real' human rights as opposed to what he sees as the trivial and meritless claims of the great unwashed who end up before the human rights commissions across Canada. This plea betrays his ignorance born of the incredible privilege of having a perch at the top of a state sponsored broadcasting network which has supported him for the greater part of his working life. The Courts with their "certain time-tested laws" have given little or no protection to freedom of speech. The law books are filled with laws that prohibit seditious libel, obscenity, alarming Her Majesty and blasphemy. If it were left to the Courts and the time tested laws Mr. Murphy so admires we could say nothing bad about the government, the church or those with enough money to outspend us in a defamation action. Freedom of expression would largely be a right enjoyed by large media corporations who could afford to hire cadres of lawyers to advance their causes.

Furthermore, traditionally the Courts have steadfastly refused to deal with certain affronts which we intrinsically know to be wrong. An employer in the eyes of the courts was entirely free to fire a man for being a Jew, a black or catholic. An employer was free to mock or label a person for all of the same or to dismiss a woman summarily from the workplace for being a woman. A store owner could deny service on similar grounds. A person who suffered even one episode of mental illness could look forward to a life of unemployment and stigma. While there are those amongst us who feel that employers and others should be free to do these things, most of us know that the reason World War II had to be fought was to change that. We know that Hitler did not appear out of thin air, but out of an atmosphere that tolerated casual, thoughtless discrimination and hatred. Those people who fought and died in World War II, I expect died in greater numbers for the ordinary catholic, Jew, woman or black person who was being beaten down by thugs than they did for the rights of the CBC, Globe and Mail or Canwest Global.

Blogging Again

I took a few months off from blogging as I went through the process of shifting jobs and generally getting re-oriented to my new work environment. Moving a fully operational law practice from one firm to another has been somewhat more exciting in terms of the amount of work involved than originally anticipated (I think it could be best described as dismantling an airplane and then re-assembling it as a new model -- in mid-air with passengers) and I felt that I could not give proper attention to this blogging project to merit posting my thoughts.

I have given some thought though to what this blog is about and have decided to actually focus it on law and events in the public that relate to legal topics. Undoubtedly this will spill over into some politics and social commentary -- for law is fairly well inseparable from those two things -- and perhaps some gossip (for lawyers love to gossip) but I hope to keep a bit of direction to the writing here. I am though thinking about perhaps, maybe having another personal blog for those occasions where I get the urge to write about food, Newfoundland and other miscellany. Now, on with the blogging ....

The Conservatives and Insite

Tony Clement continues his attack on the safe injection site on Vancouver's East Hastings Street by now attacking the ethics of the doctors who have the termerity to support the continued operation of the site. Here is a little sample of Mr. Clement's thoughtfull and insightfull words: "The supervised injection site undercuts the ethic of medical practice and sets a debilitating example for all physicians and nurses, both present and future in Canada." he also added the clever comment of: "junkies and pushers don't belong near children and families. They should be in rehab or behind bars." Hard to argue with that now isn't it -- but wait, do we actually have rehab here in Canada?

In my previous life as a lawyer in Toronto I had the privilege of assisting a number of physicians dealing with problems with alcohol and drugs. In some cases, these were very severe addictions and the College of Physicians and Surgeons had to intervene, not just to protect the public but also to protect the doctors themselves.

Becasue of this, I saw what treatment for drug addiction could look like if properly supported. These doctors, despite in some cases taking staggering amounts of drugs or alcohol, were surprisingly functional. They did not look like the ghostly addicts that are seen on East Hasting Streets with hollow eyes and track marks on their arms. What was also remarkable was the extent to which even if their personal lives were a ruin, their professional skills were intact -- in not one case that I dealt with was there any allegation or evidence that a patient had been injured or mistreated.

The most astounding part of the story though is what happened after discovery and intervention by the College (usually triggered by a warning by a colleague). As these people were doctors and generally had access either to good health insurance coverage or personal resources they could afford excellent and intensive medical treatment and generally pursued it. This did not mean a drop-in to a therapist now and then for a bit of chit chat -- this meant serious 30-60 day admission in inpatient facililities like Homewood Health Centre in Guelph.

These doctors would receive multi-disciplinary treatment that included medical care, nursing care, psychotherapy, physical therapy and occupational therapy. They would receive guidance on the issues that had led them to addiction and the patterns that could lead them back into trouble. They would be given the help to re-organize their professional lives (in some cases it is inappropriate to return to certain specialities -- anesthetists for example are particularly at risk of relapse as are intensivists and emergency room doctors). After leaving hospital they would be given further follow-up treatment and extensive support to put in place mechanisms to prevent relapse. The College would also provide very strict monitoring programs (random drug testing, supervised practices and mandatory medical reporting for example) to ensure public safety

This treatment was successful in every case I saw. These doctors returned to the profession as healthy productive members of society with their addictions under control. But this treatment was expensive and the facilities available for such treatment limited. The reality most addicts face is that the availability of such rehabilitation is a fantasy. No province supports or funds such treatment and the federal government certainly has no intention of putting any funds into providing that kind of care for addicts who are not blessed with incomes north of $200,000.

The other thing that came home to me in seeing these doctors go into treatment and fight to stay in treatment was the importance of having something to come out to. These doctors had homes and families. They had networks of friends. Moreover, the College made it clear that addiction was not a professional death sentence -- treatment would allow them to salvage their careers provided they could prove that the public was not at risk. All of this drove these men and women to succeed at their treatment. The reality we offer the people on East Hastings is nothing -- we label them junkie and pusher and then marginalize them leaving them in poverty, without jobs and in many cases without families. The best people like Tony Clement will offer them is a good hard shake of the finger saying that either they should be "in rehab or behind bars".

The joke in Canada though is that we do not offer rehab. The treatment I just described is expensive (but likely far less expensive than a week in ICU for someone doomed to die). It is also treatmentg that is being offered to people that the conservatives and many members of the general public despise -- "junkies and pushers." Not people who are deserving of the taxpayers dollars in the minds of many.

But, this treatment, if given the proper support can work -- I have seen it work and so have many in the medical profession. We give our doctors a hellish choice -- we say to them treat these people as best you can but then do not let them offer the treatments that work. So what should doctors do then -- Tony Clement would have them walk away and leave these people to rot in jail or on the streets. Tony Clement would have the doctors stand aside and let these people get AIDS, HEP-C, TB and the whole range of nasty (largely antibiotic resistant) infections that destroy these people's bodies and minds. Instead the doctors have said, "well if you won't give us the tools to treat, at least let us reduce the harm." This is what Insite is all about -- true it is not treatment for addiction but it does help these people at least have a chance to some day get to treatment without the whole range of wasting diseases that afflict the impoverished drug addict. For Tony Clement to question the ethics of these doctors -- as he did at the recent CMA conference -- is a joke.

The final part of the joke is that Mr. Clement is part of the government that killed one of the initiatives that in the long term (perhaps in this generation but not by the next election) could have addressed the other side of the equation -- the problem of giving the people on East Hastings something to come out of treatment to. Aboriginal people make up a very large percentage of the victims of drug abuse on East Hastings. Before they were the victims of drug abuse though they were also victims of poverty, poor education and broken families. They have few job skills and no job prospects. Often they have no real family to turn to. The Kelowna Accord was designed to start addressing this -- to set aside the ideological and legal disputes over ideas like rights and sovereignty and to work together to address educational deficits, health problems, unemployment and poverty. Sadly the Tories decided they were not interested.

Holidays Over

Things have been quiet here lately. No posts since July 11 and scattered posts before then. Well now I will get back on track and limber old the old writing muscles and provide a few unsolicited opinions to my small group of readers (who maybe I will get to grow).

The reasons for my absence are multiple but largely boil down to the fact that it is only possible to juggle so many balls at the same time. For me the last few months have been filled with buying a new house, selling an old house (yes, we did have to bridge for a few nail biting months as the market declined), deciding to leave an old job and joining a new law firm. The latter process I discovered is not so easy when you are further along in ytour career as your work does not just go away bit for some reason clients keep pestering you and expect things like their work to be, how do we say it, done.

Any way changes done and best of all a two week holdiday in Spain under my (womewhat expanded) belt I now feel energized and engaged in a way that i have not in months. Amazing what change can do -- once it is done.

The Reserve System

Jeffrey Simpson writes in today's Globe and Mail that the time may have come to ask whether educational outcomes for on-reserve aboriginal people may better be linked to the existence of the reserve system rather than the funding or governance of on-reserve schools. As is often the case when questions like this are asked no specific feature of the 'reserve system' is identified nor is any solution for problem identified.

The reason for this hole in the argument is actually somewhat simple -- it is actually hard to identify a problem with the reserve system that could explain poor educational outcomes. Here is what the reserve system does not do: (i) it does not force or require anyone to live on-reserve; (ii) it does not take away any legal rights that any person holds any where else in the country; (iii) it does not prevent aboriginal people from owning lands, taking jobs or moving to the cities. The reality of these statements is demonstrated by the fact that many (indeed) probably most aboriginal people do not live on-reserve and pursue their lives far from the reserves in cities.

Furthermore, being an aboriginal person living on reserve does not give an Indian (that is a person having status under the Indian Act) access to a tremendous trove of special benefits. With the exception of a post-secondary education grant and extended health care coverage, most Federal welfare/social assistance programs are harmonized with Provincial programs so there is no real advantage to taking welfare on reserve as opposed to off reserve -- the only change is where your cheque comes from. Indeed, for Indians on rural reserves getting the same social assistance as a person in the city can carry with it real disadvantages given the distances that must be traveled to access things like, say, groceries much less the types of services that are available to the poorly off in the cities.

I suspect that the core of the issue is the approach to the delivery of many public services to aboriginal people is not the reserve system but the view that if we just deliver the same per capita funding for a service to a reserve we should expect the same per capita outcome. That is, if the average funding for a child's education in British Columbia is $10,000 per child then the average funding for an aboriginal child should be $10,000 per child and we should expect the same outcome. This is complete nonsense.

There are obviously issues related to the delivery of services in rural areas and the costs that come with the lack of economies of scale. This is a challenge facing all rural communities, of course, but aboriginal communities face the added challenge that they are not part of a larger cultural group that can accept them in their same cultural milieu in the cities if individuals make the choice to move (that is if you are a non-aboriginal Canadian, moving from 100 Mile House to Vancouver is a move within your approximate cultural setting; if you are Chilcotin, a move from Nemiah Valley to Vancouver is move out of your cultural community). But I think there is a deeper issue here.

Aboriginal communities are communities that are in the midst of a profound crisis. To put it in perspective, think of Europe in the Middle Ages following the fall of Rome, the de-population caused by the Black Death and the invasions by the arabic-muslim armies from the Middle East. These events caused profound social and political disruption which led to death, loss of knowledge and education, loss of political structure and war. Arguably, it was not until well into Renaissance or even the Enlightenment that Europe pulled itself out of despair and disruption caused by those calamities. Imagine now how European cultural would look if instead of the Black Death killing 25% to 30% of the population it killed 85%-95% and did so not over centuries but over a period of probably 100 years. Suppose further that the arabic armies rather than being turned back at Vienna, overran Europe and imposed new, islamic legal and religious structures as the dominant structures and finally that traditional European political, religious and legal structures were shunted aside as large arabic/muslim colonial efforts were undertaken. At the very least it would be fair to say that European culture would look very different today.

Yet this is just what has happened to aboriginal people -- regardless of any moral judgement of the rightness or wrongness of these results -- aboriginal society in North America today is one that is only about 250 years from the type of massive disruptions described above. Moreover, it is still part of an ongoing process where the degree to which the colonial power's political, social and legal structures will be imposed on aboriginal society is being determined and/or negotiated. In the case of education, we are only about twenty years from the end of an attempt to impose Western education by means of industrial scaled removal of children from homes combined with effective internment in education camps (imagine if that were done today to rural non-aboriginal communities) and just beginning an experiment concerning how to deliver education to local aboriginal communities. Furthermore, these communities are dealing with adult populations whose experience of education largely focused on the residential school experience which was not well designed to produce high rates of literacy or a love of learning but was instead designed to provide a basic vocational education.

My thought is that if we stepped back and looked at the matter objectively we would see that the problem in delivery of education to aboriginal people on reserves or anywhere is that we have premised it on the idea that we can deliver it on a footing similar to that on which we deliver it to comfortable, middle-class kids living with parents who are employed, love education and are largely literate. The delivery of education to aboriginal people on reserve is in reality a crisis program -- it needs to deal with the reality that it is being delivered to communities which need help in developing social and educational support structures that we just assume exist everywhere else. We need to figure out how to deliver large scale adult education at the same time as we are delivering childhood education; we need to develop means of delivering supplementary programs; we need to look at school meals to give children the basic physical resources to live so that they can concentrate on education. We need to figure out how to create dedicated corps of teachers who will be committed to delivering aboriginal education.

The real debate we are having is not about the reserve system -- the reality is that most reserves in Canada are empty tracts of lands set in remote areas. They are an economic resource held for the communities -- a small part of a patrimony that has been largely taken away from aboriginal people. Taking that away from aboriginal people is not going to inspire children to learn or adults to think that their children will be treated fairly. The real debate Jeffery Simpson is raising is whether we still think that the best solution for the 'Indian Question' is assimilation -- that is, get on with leaving the reserve, move to the cities and assimilate into the mainstream. The reality is that this is exactly the approach which has been tried for close to 200 years, indeed the first Indian Act was called "An act for the gradual enfranchisement of Indians ..." and was premised on the idea that the reserves were merely an interim step on the road to assimilation.

It is the reality of historical experience that convinces me that the pro-assimilationists are guilty of what a friend of mine calls 'magical thinking'. Assimilation was the policy thrust for 200 years and it was encouraged strenuously through forced education, through forced religious training and through economic incentives which made being an Indian not worth it. And yet it failed to produce significant assimilation and instead produced poverty and social disruption in communities which nevertheless maintained their identities. Indeed, even people who were forcibly enfranchised through things such as the marrying-out rules continued to assert their aboriginal identity and maintain their connection to their communities despite becoming the marginalized amongst the marginalized. What does Jeffery Simpson propose in the face of this? The reserves be disbanded? Houses torn down? Children moved to schools in the cities? Does he think that taking away extended dental care and a post-secondary education grant is going to improve the education of aboriginal children?