Preston Manning's Odd Concept of Honesty

The Globe and Mail regularly publishes commentary from Preston Manning, whose role in society is billed at as "president and CEO of the Manning Centre for Building Democracy." This billing, of course, is true enough, but completely deceptive. The reason Mr. Manning's drivel is regularly published is because his past role as founder and leader of the Reform Party. Or, even more accurately, because of his role as midwife to Canada's modern right wing leadership, including his proudest delivery of all -- the Right Honorable Stephen Harper. While this type of re-packaging is fair enough (politicians of all stripes do it) surely the Globe and Mail should at least give some indication for the benefit of younger readers or readers new to Canada that Preston is not merely some altruistic guardian and promoter of democracy but is a former politician who is now pushing his right-wing anti-secular agenda under misleading title (have a look at the list of patrons and directors of the Manning Centre if you would like some reassurance of this characterization of this organization).

Normally it is easy enough to pass over Preston's opinions -- there are not enough hours in the day to read every right wing screed that makes it into the newspapers -- but a recent column extolling Stephen Harper's honesty was eye catching (if for no other reason than the cartoon of Steve wearing two halos). On reading it, it turned out to be a tribute to the Prime Minister's honesty in (1) speaking the truth to the Chinese about human rights while still promoting trade and (2) not advocating for unrealistic targets at Copenhagen but instead making it clear that Canada would only follow the United States. This analysis is shocking and cannot go without comment because of what it truly says about Preston Manning and his centre.

The first example of the Prime Minister's honesty that is lauded by Mr. Manning is openly mispackaged. The Prime Minister certainly did call out China for its human rights abuses in the past but in recent months has pulled back his horns as realized that this type of behavior was inconsistent with promoting trade with Canada. Now the Prime Minister does what every other Canadian Prime Minister since Pierre Trudeau has done -- mutter something about human rights under his breath while busily shaking and hands and hosing banquets to promote trade. Real honesty on the human rights front would have been speaking to a friend -- say George W. Bush -- about his human rights flaws (say that little due process free prison in Cuba) or supporting the promotion of human rights at home (say for example by sending a letter politely asking for Omar Khadr's return). Instead, all we see hear is the Prime Minister criticizing those who he politically disagrees with until he realizes that it is politically inconvenient.

The Copenhagen example is doubly ludicrous. I will first pass over the global warming debate per se but instead will comment on the approach advocated by Mr. Manning. Mr. Manning's argument is that it is honest to advocate for weak standards and commitments because that is all that we can do in the face of what the United States is doing. More generally he is saying that all Canadians will do is slightly limit their emmissions so it would be dishonest to bring forward anything more aggressive (this is true enough and is an excellent argument for doing with Canada's drug laws as we have no intention of seriously limiting the consumption of intoxicants across society). Of course, this ignores the idea that an event such as Copenhagen brings people together so that new positions can be forged so that the problem of not getting out of step with trading partners can be avoided. Thus it is a chance to advocate stronger positions leaving open the possibility of falling back if no new consensus emerges. But of course this is not Mr. Harper's real goal and it is here that Mr. Harper's lack of honesty shows through.

The reality is that Mr. Harper does not believe in human caused global warming and does not believe anything can or should be done about it. If Mr. Harper genuinely believed in human caused global warming then honesty would dictate developing binding standards and pushing as hard as possible to do something about it. Anything else would be stupid and inhumane when the future cost of global warming (whether human caused or not) is taken into account. Mr. Harper however clearly does not believe in human caused global warming and sees the expenditure of effort to avert the continued discharge of greenhouse gases in large quantities as a waste of economic resources and an example of bowing at the altar of left-wing voodoo science.

But Mr. Harper is politically astute enough to know that he cannot say this. The reality -- he knows -- is that he will loose large chunks of votes in the centre if he were to publicly come out and say "there is no such thing as human caused global warming and we should not be wasting our time and economic resources fighting it." Such a statement would be honest but would relegate the Prime Minister back to Reform Party territory in terms of votes. The reality is that voters in Toronto pump out tonnes of greenhouse gases and are not particularly willing to bear the costs of reducing those emissions, but at least they accept it is a problem even if they are afraid of the solutions. To be faced with a blunt statement of the Conservative Party's true belief would only serve to remind those voters that Stephen Harper has a cabinet minister who is rumoured to believe that men and dinosaurs walked together.

What Preston Manning really seems to admire is Mr. Harper's ability to hold true right-wing beliefs buy then tell the lies necessary to package them -- something Mr. Manning was never able to do effectively in his days as an elected politician. Mr. Manning's centre gives him a forum to advocate for his political views -- not for democracy generally, but right-wing anti-secualr democracy. He is willing to rebottle hypocrisy as honesty -- as most policticians do -- as a pasrt of this quest. What is pathetic though is the fact that the Globe and Mail is willing to give him a soapbox to do it from. Isn't the National Post good enough for that?

Farewell Christmas Stuff

yesterday we put away the bulbs, cast out the Christmas tree and packed away the scented candles. Today I go through the fridge and cupboards and cast out the various sweet temptations that are arrayed everywhere. It is all part of the wheezing and indigestion begone program. All of which brings to mind Ambrose Bierce's definition of the diaphram:

DIAPHRAGM, n. A muscular partition separating disorders of the chest from disorders of the bowels.

Democratic Reform

There were two articles in the Globe and Mail today bearing on the issue of democratic reform. The first of these (a cover story no less) speaks to legislation being drafted to address long delayed changes to the distribution of seats in the House of Commons. This re-allocation of seats will result in a move toward more even representation across Canada (that is, a regime which has something closer to a one person-one vote approach)and will start to redress the imbalance in favour of rural voters over urban and sub-urban voters that has been built into our Parliament for decades.

The second article deals with the depressing reality of the ever declining percentage of the electorate that turns out to vote. The writer links this to an absence of policies and debates that matter to many of the voters but fails to draw the link to the earlier issue -- the devaluation of urban and suburban votes. The reality of our system has been that we have had a built in incentive to weight our debates disproportionately toward matters of interest to rural voters and voters in Quebec because these voters carried disproportionately greater weight in every election. Not surprisingly these issues are of not such great concern to many of the residents of the cities and new suburbs who are not farmers, are less white, are younger and who have radically different concerns rural Canadians.

The growth of influence of the cities and suburbs will hopefully start the process of engaging these voters in our electoral system as they actually have a chance now of seeing governments pay attention to their issues.

Of course, we still have to face the other reality that ever since the early 1980's we have lived in a political climate which has denied the importance of government. One the right the mantra has constantly been "government is bad". For many progressive people, the courts have been viewed as more effective forum in which to press for social change or to shore-up gains made in the past. All of this has engendered a culture which by its very nature devalues the right to vote by devaluing what is being voted for. Perhaps making our institutions more democratic will start to reverse this trend as well.

Polygamy Case Ends Not With a Bang ....

The British Columbia Supreme Court brought an end to the polygamy charges against the residents of Bountiful yesterday without a trial. As a result the courts have avoided dealing with the merits of the question of whether or not Canada's polygamy laws can withstand the Charter of Rights and Freedoms. The decision (which can be found here) instead focuses on the question of whether or not the Attorney General can effectively override the final decision of a special prosecutor not to prosecute someone by appointing a new special prosecutor who will. Not surprisingly the Court was not too happy with this idea. It is too easy to say the Attorney General can get around an inconvenient final decision by simply appointing a new decision maker. As a result, the Court and quashed the prosecution on the basis that this was not permitted under the statute allowing for special prosecutors.

This decision is a strong defence of the general purpose of the special prosecutor laws but it does raise a number of difficult questions and highlights the caution that should be taken in appointing a special prosecutor. Special prosecutors are classically appropriate in situations where a crime may have been committed where the government cannot be seen as making the decision to prosecute or not. For example, the Attorney General would be put in a hopeless position if, for example, evidence of political corruption by a senior member of the cabinet were found. A decision not prosecute would detract from the public's confidence in the legal system, yet a decision to prosecute raises the question of whether or not the accused was being put through the legal mill for appearances sake. The appointment of a special prosecutor outside the ranks of the civil service brings an element of independence to this process.

The question of whether or not to prosecute the alleged polygamists at Bountiful is a different sort of question altogether. Here the questions revolve not around the independence of the prosecutor but the correct weighing of the various factors that go into deciding whether or not to prosecute. The earlier decisions not to prosecute largely turned on the question of whether or not Canada's polygamy laws would withstand Charter scrutiny. The special prosecutors (together with many other senior lawyers) at the time thought not, but no-one can suppose this is anything other than a debatable question. The Charter is an evolving beast and is not insensitive to changing social mores and concerns -- particularly in the balancing act that the Court engages in when deciding how s. 1 (the reasonable limits provision) applies. Also societal views with respect to polygamy -- which are intimately tied up with concerns around the protection of equality and the defence of underage brides -- are evolving and the balance of legal, social and political concerns that go into a decision to prosecute or not can change.

From a social perspective, the decision of the Court leaves Bountiful in an odd position. Has this decision effectively immunized the residents of Bountiful from ever being prosecuted for polygamy -- even if the polygamy laws are ultimately upheld? Put more starkly, are the women of Bountiful now forever deprived of the protection that may flow from Canada's polygamy law because of the decision of a special prosecutor in the past? More generally, have all of us as Canadians been deprived of what may be the best opportunity to test the legality of the polygamy laws in a context where the modern concerns about polygamy actually seem to arise?

These problems flow not from the Supreme Court's judgement -- which is likely correct -- but from the decision to appoint special prosecutors in the first place. The special prosecutor law was not intended as a "get out of jail free card" for occasions when the Attorney General wants to avoid a hard decision. The Attorney General is there to make hard decisions about when a prosecution is merited. There is a professional corps of lawyers who are hired to make precisely this kind of decision and do so all the time. Outside advice can be obtained and considered but generally it should be the Attorney General that makes the decision. The special prosecutor should not become a means of dodging such decisions and, as this case shows, such a passing of the buck to someone outside of the elected and accountable system of government can undermine the public interest in seeing legal issues brought forward and resolved.

The Assisted Suicide Debate Continues

In its very last judgment the House of Lords again wrestled with the question of assisted suicide. The Court had earlier determined (in common with Canada) that the bar on assisted suicide was lawful but now had to deal with an ancillary question -- that is whether or not the Director of Public Prosecutions (the head of the English prosecution service) had to give some guidance as to when it would exercise its discretion to allow a prosecution for assisted suicide.

The case concerned a woman suffering from a progressive disease which in time would render her life unbearable. When that time comes she wants to be taken to Switzerland where assisted suicide is lawful to end her own suffering. Her husband is willing to take her. There is a nice legal question as to whether taking somebody to another country where you will assist them commit suicide is even a crime, but the woman and her husband don't want to chance that. Instead they wanted an answer to the question, "is the DPP going to prosecute the husband at all?" At the very least they wanted to know what criteria the Director proposes to apply in making that decision.

The House of Lords, in a thoughtful judgment, ordered that the Director issue a policy outlining the criteria that would be considered in deciding whether or not to prosecute a person for assiting a suicide. The discussion covers a great deal of the assisted suicide debate (including the Rodriguez case) and highlights the continued difficulty that this whole topic raises. In a macabre moment Lord Phillips of Worth Matravers cites an old English decision from the early 1800's (R. v. Burgess) on the problems posed by the crime of attempting suicide:

“We are all of opinion that the jurisdiction of the Quarter Sessions is not taken away by the 24 & 25 Vict. c. 100, and that attempting to commit suicide is not attempting to commit murder within that statute. If it were, it would follow that any one attempting to commit suicide by wounding himself must be indicted for the offence of wounding with intent to commit murder, which until very recently was punishable with death.”

This question will sooner or later have to be dealt with by Parliament (both here and in the United Kingdom) but for now at least the House of Lords has tempered discretion with reason in this debate.

Perhaps this was not a bad gesture for the Lords own last act.

A Revival and an End

After an absence of several months I come back to my blog -- and so a revival. Now to comment on an end.

For several hundred years the House of Lords has stood (in the guise of its Judicial
Committee) as the highest court in the United Kingdom. Its alter ego, the Judicial Committee of the Privy Council equally stood as the de facto highest court in the British Empire and Commonwealth (although slowly but surely its reach has faded away in favour of various domestic high courts).

Despite the diminishment of its formal reach over the years, the House of Lords practically had pride of place and a form of precedence throughout the common law world as the highest court. The United States Supreme Court has always been parochial in its outlook and in its technical and arcane language (and debates) has never fired the judicial imagination of other countries in the way that the House of Lords has. None of the domestic highest courts throughout the remains of the British Empire has ever come close to the level of respect given the House of Lords.

In recent years this central place in the common law has faded. The legal system of the United Kingdom (like all legal systems) has moved away from its focus on the common law. It is now much more preoccupied with the interpretation of intricate British statutes or increasingly focused on the niceties of European Union law. The judgments (or speeches as they are more properly called) of the Law Lords that are read by law students in Canada are older now. But still the recent judgments of the House of Lords (and particularly Lord Bingham of Cornhill -- likely the greatest jurist of this generation in the English speaking world) on the topics of the war against terror and the rights of persons facing persecution are striking their clarity of thought, speech and common sense.

On July 30, 2009, the House of Lords carried out its last judicial function. It rendered a number of judgments (one of which concerned a long delayed claim for royalties for the song "A Whiter Shade of Pale" and another concerning assisted suicide). The the Lords made few quick remarks and then adjourned for the last time. In rather elegant, form the last substantive remarks of Lord Hope of Craighead concerned the inscription beneath the clock in the House of Lords chamber (which in Latin says -- Everything has its time). It can be seen at a convenient recording maintained at the House of Lords website (skip ahead a bit for the sound).

On October 1, 2009, the new Supreme Court of the United Kingdom will become the highest court in the United Kingdom. While the composition of this Court will remain the same as the current judicial committee (sadly Lord Bingham of Cornhill has retired and will not sit as the first President), I doubt it will ever have the mystique or authority outside of the United Kingdom that the House of Lords had. While this perhaps is an inevitable evolution in death of the Empire and the increased autonomy of its former colonies, it still perhaps should give some pause to mark the passing of what was once an institution that served to unite the common law.

Teachers and the Right to Political Protest

The teachers' union recently lost a battle with the provincial government over whether or not they could strike 'mid-contract' to protest political matters. This lost battle for the teachers may, however, be a good sign for their ongoing battle with the provincial over election oriented issue advertising. The court held that the right to strike can be limited despite the fact that it is an interference with freedom of speech. It held that the strike ban is a reasonable limit given the public disruption caused by wide scale teachers' strikes. (The teachers complained that non-union workers were still free to engage in protest strikes -- the court pointed out that this would likely result in consequences such as termination, loss of pay and so forth, something that would not happen to unionized employees).

The government should be concerned about this decision however as there is another battle going on with the teachers over the teachers' right to pay for issue oriented advertising (aka "let's get the Campbell out of here advertising"). Provincial legislation limits such advertising in the run up to a provincial election (that is, when it really matters) and the unions are challenging this ban. Part of the reason, however, the court held that right to strike could be limited is the fact that there are other avenues of protest open to teachers to advance their causes. It certainly seems to me that this is something that weighs in favour of letting the teachers advertise -- if they can't walk, at least they can speak.