Saturday, 29 December 2012

Dogs on the beach and the vexing question of rules


I began this blog a little more than a year ago with a photograph I had taken of a sign warning visitors not to get too close to the cliffs of Moher on the west coast of Ireland. 

I then asked some questions about rules and authority.  I said:  

Does the fact that so many folks are blithely disobeying the sign say something about our general attitude towards rules and authority?  We are so surrounded by commands and dictates and warnings and advice and cautionary words.  Coffee cups tell us the startling news that the beverage we are about to enjoy may actually be hot.  If you look at the signs in some of the city parks in Vancouver the list of prohibitions is so long that you sometimes wonder whether there is really anything permitted at all?  And so are we just tuning it all out?  ...

A year later, I thought it would be fun to post a photograph of another sign.  This picture was taken in at a city park in Sydney, Australia in late November.



Unlike the sign at the cliffs of Moher, this sign has not been defaced.  I am not going to suggest that this bespeaks some profound difference between the Irish and Australians.  After all, many Australians are descended from Irish immigrants.  Some of whom were sent to Australia, well, involuntarily!  And having spent three weeks there I can tell you that Australia is a country that loves to warn people about all of its many dangers.  No, I just like the fact that this sign actually welcomes people to the Sydney Botanical Garden and encourages people to do the things they typically want to do in a park: walk on the grass, smell the roses, eat picnics, and relax.  There are prohibitions, of course, but they are placed at the bottom of the sign, where they belong.

That’s where I think most rules belong.  At the end of our consideration of rights and responsibilities, a sort of last resort, if you will, rather than a first recourse.

I suppose this attitude makes me something of a libertarian.  But not so much because of my belief in our freedom, as because of my view about the importance of our responsibilities.  Because I think that when we choose to regulate something by a rule, we change the way we look at it.  Instead of responding primarily to the issue that caused us to think about making a rule, we think instead about the rule itself. 

To take the best example (and I know I have said this before, but it bears repeating), the question we usually ask ourselves when driving is not whether we are driving safely, but whether we are driving at or under the speed limit.  Our primary consideration is the rule, not safety.  We have in a very real, deliberate, but largely unconscious way, delegated that question of safety to someone else - the person who set the speed limit.  And in fact, for most drivers, the issue is really what speed we can get away with driving without getting a ticket.  So it’s not about safety at all, it’s just about getting caught breaking a rule. 

The whole reason for speed limits, of course, is safety.  But to a considerable extent the effect of legislating speed limits is to replace our moral responsibility to drive in a manner that does not create an unacceptable risk of harm to others with a quite different concern about rule compliance.

That’s what rules do.

On the island where my family has had a summer cottage for over half a century, we are part of a community of families that shares the use of a small beach.  The beach is so small that on summer afternoons, especially if the tide is coming in, there is not enough room for everyone.  In particular, there is not enough room for large dogs and small children at the same time.

Everyone in our little community agrees.  Most everyone also agrees that the best way to keep the beach safe for little kids is for the dogs to stay home.  There are lots of hours in the day - early in the morning, or late in the evening - when the beach is not busy, and dogs are welcome.  But just for a few hours in the middle of the afternoon, it’s safer if the dogs are kept away.

Even though everyone agrees with all of this, sometimes dogs are brought to the beach on weekend afternoons.

So the question is: what should we do about this?

There’s a pretty good chance that your answer to this question is: make a rule prohibiting dogs on the beach on weekend afternoons.

We haven’t done this yet.  In fact our little community has very few rules.  We have guidelines and expectations, but not that many actual rules.  We know that once we start making rules to regulate our behaviour, people will start disagreeing with each about what the rule says and how it ought to be applied.  And we will need to create sanctions and penalties and a process for enforcement, and a rule enforcement committee, and then we will have to decide how to choose the members of the rule enforcement committee.  And so on.  When what we really want is to keep our beach safe for little children.  And all we really need is the fortitude and the diligence to remind the person who has brought his dog to the beach that we all agreed it was not safe for dogs to come to the beach on busy afternoons.

Clearly what works for a small community where everyone knows each other doesn’t necessarily work in a large city where we are mostly strangers to each other.  I’m not for a moment saying we don’t need rules.  But sometimes I think we need to remind ourselves that law-making is not a panacea, and often is a poor, second-order substitute for individual or collective moral responsibility.  We could do worse than to spend less time making and enforcing rules, and more time just working out how actually to get along with each other.  Rules if necessary, yes, but not necessarily rules.

Saturday, 22 December 2012

One more reason why legislatures should sit more than once a year


Every day I am reminded of the pace of change.  Nothing is more trite to say, but it’s still true: change is pervasive and relentless and unavoidable.  To take just one example, hardly a day goes by that I am not asked to update one of my small handful of smartphone apps.  Either the programmer made an error that has only now been discovered (a fortnight after he discovered the last mistake), or the designer has thought of some way she could improve it.  Every machine and tool and device I can think of is constantly being updated - just think of how often someone re-invents the screwdriver (and advertises the revolutionary and transformational and convenient completely new version of a screwdriver on late night shopping channels) and you’ll know what I mean.

So would you permit me a leap from this utterly banal observation to a comment about law-making and legislatures?

Our provincial legislature did not sit this fall, and more often than not over the past several years has been sitting only once a year, usually for a spring session that begins in February and ends in about May.  People ask me why, and if I feel like avoiding the question I usually offer a smart-alec answer like, “Hey, the two main purposes of the legislature are to pass bills and give government permission to spend money.  Do you want more laws and more government spending?”

But a legislature does not just make new laws, it updates old ones.  Corrects errors that may not become apparent until the new law was implemented.  And refines, expands, adjusts the law to changing circumstances.  Sometimes courts interpret legislature-made law in a way that defeats the policy intentions of the government that enacted it; often the only way to restore the policy intention is by revising the legislation.

None of this work can be done unless the legislature is in session.

The question of how often a legislature should sit is usually discussed as an issue of democratic principle.  One way of expressing that principle is to say that the legislature is the only place where government can formally be held accountable for its decisions; it is the people’s chamber and needs to sit to do the people’s business.  A government which infrequently convenes the legislature is, the argument goes, avoiding accountability.

But in a rapidly-changing world, perhaps there is another reason why government should call the legislature into session on a regular basis, and that is simply for quality control purposes, to ensure that there is an opportunity to improve and correct legislation.  We need to update our laws just like we need to update our smartphone apps.  Maybe not every couple of weeks, but surely more often than once a year. 

When outdated or badly designed laws are allowed to hang around the statute books, or when law is not kept up-to-date, there are lots of real world impacts: tax calculations, the rules for running a strata council, residential tenancy dispute resolution, the enforceability of contracts made on the Internet, legislation that governs almost every not-for-profit association in the province - all these areas of life are governed by complex legislation that often needs to be revised and updated.  If the needed changes aren’t made, the result is uncertainty and unfairness. 

Asking legislatures to sit more often is not therefore just about democracy, it’s also about making the business of government more business-like, responsive to the practical and sometimes urgent needs of citizens, as able to implement and respond to change just as often as we are all required to do in the rest of our lives.   

And if you will permit me one more leap, these sorts of considerations also help explain why the federal Conservative party’s current fixation on massive omnibus bills is not just un-democratic, it’s also a high-risk way to making law that significantly increases the likelihood that errors will be made.  When government tables a bill that is hundreds of pages long, covers a diverse range of entirely unrelated subjects, and then truncates debate, it denies members of parliament the opportunity to do one of their most important tasks: to scrutinize legislation; to examine and test both its principles and its details; to fix errors; and to fine tune that which needs adjustment.  Competent as they are, legislative drafters do not always get it right.  Cabinet ministers are often required to amend their own bills while they are being passed because some sharp eye found a mistake after the bill was tabled.  The proposition that nothing anyone in parliament says could possibly improve their legislation is a special form of arrogance on the part of the federal Conservatives.  But it’s not just undemocratic.  It’s also, put simply, not very businesslike.

Wednesday, 12 December 2012

Sydney's amazing opera house


Just when I thought I had Australia all figured out, we took a tour of the Sydney Opera House and saw this.

It may be the only place in the whole country where men are actually directed away from the bar.

But then, perhaps that's what happens when Australian men attend the opera?

Seriously, I love the Sydney Opera House.  When construction started, the engineers had not actually figured out whether the building could be built as designed.

And when finally completed, the price was 1400 per cent of budget.  That's right.  It wasn't just twenty or thirty per cent over budget.  It cost 14 times more to build it than was originally estimated.

And yet it is one of the world's few truly iconic buildings.  Up close, it is simply breathtaking.  Audacious and yet utterly graceful.  As startlingly modern today as it was when construction finished almost forty years ago.  When its soaring, ambitious, and yet completely simple lines literally reshaped  our conception of an entire country.  And its price is just a footnote.

Sometimes boldness wins.



Friday, 16 November 2012

Perhaps we can end bullying by "educating the hearts of children"


Bullying, we know, is not just a word used in a newspaper headline.  Nor is it something that just happens to someone else we’ve read about.  At some point in our lives we’ve all been there, on one side or the other of it: a schoolyard taunt that took teasing a step too far, a wisecrack intended to cause a laugh around the water cooler that instead brought tears, or the feeling that you’ve been completely forsaken by people you thought were your friends because for no reason that makes sense they’ve ganged up against you.  The moment may pass, or it may not.  What lingers is the aftertaste of shame, and the feeling that we can and should be better people.  Bullying, in other words, is about all of us.

When bullying becomes a public issue, and it certainly has in British Columbia for the past few weeks, the public asks what can be done to “stop” it.  One of the most poignant statements I remember hearing in the immediate aftermath of the tragic death of Amanda Todd was that there ought to be a law against bullying.  Well, it’s the way we are these days, I guess.  That we think we can stop a problem by asking someone else  to make or enforce more or better rules.

But surely if we really want to “stop” bullying, we’re all of us just going to have learn how to treat each other (and ourselves) with dignity and respect.  I said “learn” because there’s more to this than just hand-wringing and wanting to be a better person.  There are things we can do to help us develop the attributes and skills of compassion and resilience that are needed to flourish in a world filled with other people, and in doing so, to prevent bullying.

His Holiness the 14th Dalai Lama has a phrase for this.  He calls it “heart-mind” learning.  At the Vancouver Peace Summit in 2009, he asked those in attendance this question: “How can we educate the hearts of children?”  It’s not a religious or a political question.  It’s a question for all of us. Finding the answer to that question lies at the core of the work of the Dalai Lama Center for Peace and Education, established in Vancouver in 2005.

What the Dalai Lama calls “heart-mind” learning is called social and emotional learning by education researchers.  Increasingly, those researchers are discovering that there are education practices that can help children build resilience and socially responsible skills and attitudes that nurture the development of empathy, confidence, compassion, trust, acceptance of differences, and respect.  All of which helps prevent harmful behaviours such as bullying.

It’s not just about learning to be nice.  What is perhaps even more important is that this research is proving that social and emotional learning improves academic outcomes in school children.  The largest ever meta-analysis involving 213 school-based programs and 270,000 kindergarten to Grade 12 students showed that programs to educate the heart improved student academic performance by at least 10 percentile points on achievement tests.  The power of that research is causing public education officials here in B.C. and around the world to incorporate social and emotional learning into formal curriculum goals.

The Dalai Lama Center works to advance efforts in BC to provide all children and youth with environments - in schools, families and communities - that enable and foster heart-mind learning.  The work is organized through four streams of programs and activities:  to educate, convene, research and advise.  I could say that is what “we” do because recently I had the opportunity to join the distinguished group of people who are the DLC’s board of trustees.

This work matters to me because, having spent much of my working life as a lawyer and politician trying to repair or patch together what has been broken by our failure to treat ourselves and each other with real respect and compassion, the DLC work is about, if you will, getting it right in the first place.  The ounce of prevention that will reduce the need for the pound of cure.

I could go on at length about the DLC’s work but the fact is that this information is only a click away: dalailamacenter.org.

It’s important work.  It’s a bold endeavour.  As Dr. Daniel Siegel, author of the bestseller Mindsight has said, “You can make the argument that the future of the planet depends on raising compassionate children.”  But it’s not something happening somewhere else or to someone else.  It’s right here in our own backyard.  Earlier this week, Premier Christy Clark referred to the work of the Dalai Lama Center in her wonderful speech at the ERASE bullying conference.

I encourage you to have a look at the DLC’s website.  It’s one of those “you, too, can make a difference” opportunities.  Because while the Dalai Lama endowed the centre with a mission, it has no financial endowment beyond the contributions of donors.  We are a small organization with mighty ambitions.  We would be most grateful for your support.  And maybe with this work, and all the other work we need to do, we can truly make a difference in they way we treat each other.

Monday, 12 November 2012

If the best music is really now, what should I be listening to?


Bear with me for a minute.  I have a favour to ask of you, but it will take a few paragraphs to get there.

Last Friday was voting day for CBC radio’s On The Coast search for the best decade in popular music.   The series started several weeks ago with the Fifties and concluded with the still-awkwardly-named Aughts.  It was great radio, not just because of the music (The first time I ever heard a Led Zeppelin song on the CBC afternoon show!), but also because of the very tangible sense that I was personally included in a conversation with Stephen Quinn, his guests, and the other regulars who share the studio with him, and all of us as listeners.  Or at least me.  More than once I found myself talking to Stephen as I was driving home; more precisely, shouting my opinion at the windshield.  

My mother passed away several years ago, and so I was denied the opportunity to hear her weigh in again on what was, for her, the only truly great decade in popular music, the Forties.  But hey, we all love best the music we grew up to (and with) and so, with a measure of regret that I will explain below, I confess that I voted for the Sixties and it must surely say something about the age demographic that listens to Stephen Quinn that the 60s won.  Are we really all that old?   

As for me, I could even narrow the window of time still further: the eighteen months between the release of Rubber Soul in December 1965 and Sgt. Pepper’s Lonely Hearts Club Band in June 1967 were just about as magically listenable and explosively inventive as music has ever been, and the fact that "Like a Rolling Stone" and "The Canadian Railroad Trilogy", and "Brown Eyed Girl" and a hundred other amazing songs were released in that same period just adds weight to the claim.

But I also think, or at least I hope (and here’s that note of regret), that the better answer to the question that asks us to choose the best moment for music is now and always now.

Almost every album Paul Simon ever made is amazing, but 2011’s So Beautiful or So What is just stunning - new sounds, new rhythms, and lyrics filled with new insights about living right now.  And for sheer pleasure of songwriting, it doesn’t get any better than Fleet Foxes’ "Helplessness Blues", or Kathleen Edwards’ "Empty Threat", or, for musicianship, really just about everything that Bon Iver and the Decemberists do, and all the other great musicians who weren’t even born when the Beatles were making masterpieces on Abbey Road.

The best new music always makes me glad I am alive today and still listening to music, and especially happy that I am not missing out on the really great music that is being made right now.

And so now to my favour.  It’s getting close to the end of 2012.  By this point last year I had a long list of 2011 favourites.   I must have been busy doing something else this year because I haven’t got as complete a list for this year. Hey Ocean’s Is.  Kathleen Edwards’s Voyageur.   The new Kate Rusby retrospective. Keane’s Strangeland.  Great albums by Fish & Bird (Every Whisper is a Shout Across the Void) and The Outside Track (Flash Company).  It’s all good, but it’s not enough, and truth be told, I don’t really even know what I’m missing.

So help me out.  One of my favourite Christmas chores (gasp! Did I actually mention Christmas?) is to buy music for my own stocking.  What music, released in 2012, needs to be added to my Santa list?

Thursday, 8 November 2012

Ending cannabis prohibition - you can make a difference, too


Earlier this year I decided to publicly support the work of StoptheViolenceBC, a coalition of health care professionals, past and present public office holders, and community leaders, dedicated to the project of ending marijuana prohibition.
The polls tell us that three-quarters of British Columbians would like to replace prohibition with a carefully designed regime of regulation and taxation.  Earlier this week the voters of Washington State and Colorado decided it was time to stop waiting for politicians to play catch up, and have passed historic initiatives to legalize, tax and regulate cannabis.
I do not recommend that people use marijuana.  Far from it.  But I also don’t think that the over 400,000 British Columbians who do use marijuana are criminals.  They should be free to make their own choices.  A regime which regulated and taxed marijuana would: (1) drive out the organized crime cartels that control the manufacture and distribution of cannabis and increasingly penetrate every aspect of the mainstream economy; (2) end the carnage that ensues when gang members shoot each other in broad daylight on the streets of our cities as they fight for market share; and (3) provide additional revenues to government to support the health awareness and addiction treatment programs that are perennially underfunded.  
The voices that oppose change sometimes say it is foolish to expect that legalizing marijuana would end organized crime.  Well, that’s not what we’re saying.  What legalization would do is end organized crime’s control of the cannabis market.  Organized crime may find something else to do.  But at least gang members won’t be shooting each other in restaurants to increase their market share in cannabis.  And the pernicious spread of commercial grow ops will come to an end.  And people who do smoke pot won’t have to worry if some crook has laced their supply with meth.
Perhaps equally importantly, it’s clear that law enforcement often use possession laws not to deter mainstream use of marijuana, but instead as a 21st century equivalent of vagrancy laws - a handy tool to “manage” some of the most marginalized members of our community, by frisking the noisy panhandler or street homeless person to get them to “move along”. That's an illegitimate use of the criminal law, in my view, and it needs to stop.
In every way imaginable, the policy status quo is a failure.  Increasingly, I think the only thing that holds us back from change is simply that we are used to the status quo, and uncertain about what a new policy framework would look like.   
One of the achievements of the StoptheViolence campaign, in my view, has been to “mainstream” the discussion by getting acknowledged community leaders involved.  The coalition started with health care professionals, including physicians and public health officials.  The coalition’s supporters now include past and present mayors, city councilors, law enforcement officials and more.
Dear reader, maybe it’s time for you to get on board, too.
I know how challenging it can be to wade into a controversial issue which lies outside the main course of one’s duties and responsibilities.  But what we have learned from events in Washington in Colorado this week, and what we know from public opinion polls here in B.C. is that this issue is no longer really controversial.  It’s no longer a question of whether there will be change, but when.  
If you agree, why not add your voice to the dialogue?  Help make change happen sooner, rather than later.
Check out the stoptheviolencebc.org website.  Better yet, write your Member of Parliament.  Tell them it’s time they started listening to their constituents and communities.  Tell them not to wait for change, but instead, lead it.

Thursday, 25 October 2012

NDP tax promises. It's not what they say, it's what they do that should worry us


Have a read of the following passage, after which I will ask you a question about it:

A New Democrat government will control government spending openly and responsibly.  We can’t solve every problem overnight.  We will set priorities.  New Democrat programs will be affordable and within our means.  We will not spend more than British Columbians can afford.

We will make sure that large profitable corporations and the wealthy pay their fair share of ... taxes.

A New Democrat government will balance the budget over the business cycle...and keep taxes fair...for everyone.

So now the question: who said this?

You might think it was NDP leader Adrian Dix in one of his recent speeches to the business community.  Over the past weeks and months, the NDP have begun laying out their fiscal policy in anticipation of the next election.  What are we told to expect? A modest increase in corporate taxes.  Re-instituting capital taxes on banks.  Perhaps an increase in income taxes for the very well-to-do.  It all sounds very measured.  Or, as Vaughn Palmer put it in his column a couple of days ago, “Not exactly rampant socialism.”

It’s a message that sounds a lot like the passage I quoted above, doesn’t it?

Except that passage is actually from the 1991 NDP election platform.

Now I know there are folks out there who want us all to lay off the history lesson.  Forget about the past, and concentrate on what the NDP are promising today.  And after all, what they are promising today looks so reasonable - who could complain?

Except that they made the same fiscal policy promises in 1991.  And once elected, they proceeded to break them.  Big time.

It’s actually worse.  In the immediate run up to the 1991 election NDP leader Mike Harcourt promised no new taxes, an even clearer and more definitive statement on tax policy than the passage I quoted from above.  And yet within a few weeks of the October election he was already backtracking on that promise.  As soon as November 29, 1991, Premier Harcourt was quoted in the media saying he had “not ruled out tax increases despite his ‘no new taxes’ pledge”.

And of course what followed were years and years of tax increases.  Not just increases in existing taxes.  They even created entirely new taxes.  In the 1992 and 1994 budgets, for example, the NDP imposed $2 billion worth of new taxes on everything from personal to corporate income.  Not just millions or hundreds of millions of dollars of new taxes.  Billions.

In November 1991, after getting elected on the platform promises I quoted from above, Finance Minister Glen Clark said, “the NDP’s campaign promise to introduce only two new taxes - a minimum corporate tax and a high-income tax surcharge - may not be feasible in the short term.”  

If that isn’t the definition of a Groundhog Day nightmare, I don’t know what is.  Turns out that NDP tax policy before the 1991 election was pretty much exactly the same as NDP tax policy today.  Some things, it seems, just don’t change.

So I want to be the first to say that I am interested in all of the policy proposals that the parties will offer voters in the run up to the election next May.  There’s more to government than fiscal policy.  But it all starts with fiscal policy, because that’s the foundation on which everything else is built.  And on fiscal policy I know everything I need to know about the NDP. The NDP are on exactly the same trail today that they were 20 years ago.  Their promises sound reasonable.  And yet by the time the NDP were finished with tax “innovation” in the 1990’s, British Columbia had the highest marginal tax rates in North America and we were a have-not province, dependent upon handouts from the rest of the country to support government spending.

Anybody feel like trying that experiment again?

Monday, 22 October 2012

Justice reform: imagining a world without nails


Most justice reform is incremental.  Take even a report as thoughtful and ambitious as Geoff Cowper’s recent BC Justice Reform Initiative report. Most of its many excellent recommendations propose relatively minor adjustments to existing institutions and processes; if the whole report was implemented (and I hope it is), the result would be very significant, but not, I respectfully submit, transformational.  Our legal institutions would be somewhat repaired, perhaps, but most certainly not re-invented.  And of course the lawyers and judges – the folks who in large measure created the problems – would still be in charge.

Some think that incremental reform goes far enough.  I do not.  I think that sooner or later the legal system will have to reinvent itself profoundly, or else re-invention will be imposed on it.  

I hold this view not just because of long experience watching how tenaciously the status quo is defended, even as public confidence in the justice system and law work continues to erode, but also because I have seen how much re-invention is underway in other parts of our lives.  

Gillian Hadfield, a professor of both law and economics at the University of Southern California, is much better at articulating these ideas than I am.  Professor Hadfield is one of a small but growing chorus of academic voices discussing and in some cases calling for the de-regulation of the legal profession, an idea that would be regarded as profoundly heretical here in British Columbia.  In a recent article in the Stanford Law Review entitled “Legal Barriers to Innovation: The Growing Economic Cost of Professional Control over Corporate Legal Markets.”  (60 Stan. L. Rev. 1689 2007-2008) Professor Hadfield analyzes the extent to which the self-regulation of the legal profession stifles innovation in the delivery of legal services in the business sphere.  I like the way she puts things:
 “Innovators have long been imagined as disaffected or isolated iconoclasts tinkering away in the garage, on the periphery of the markets that their inventions might transform.  Where are the “garage guys” in law?”
In her view they are blocked by professional regulation that ensures that only those who have gone through “extensive induction into the conventional practice of law may participate in legal markets.”  

And then she finds another wonderful way to make the point:
"This regulatory structure is akin to requiring that anyone with a “mission to make the world’s information universally accessible and useful” complete a degree in library science and maintain standing in the professional association of librarians before embarking on the mission."
This of course is the mission of Google.  Her point is that Google’s founders, Larry Page and Sergey Brin, did not need to go to librarian school to reinvent access to information.  And that’s my point.  What Page and Brin want to do is make information accessible.  They’ve found a way to do that which completely bypasses the traditional structures of libraries and librarians, and instead puts a whole world of information directly and literally into our hands. 

That’s the kind of thinking that is needed for law and justice.  Discarding the self-orienting perspective of those who can only see the legal system from their traditional vantage point inside it.  Remembering that our real objectives are, say, access to legal products and outcomes without requiring that we pay someone who has eight years of post-secondary education.   To take Professor Hadfield’s analogy, it’s not the librarian we should care about, it’s the information.

Why is it more likely that transforming innovation will come from outside the world of lawyers and judges? Well, Professor Hadfield has one more beautiful little insight:
"The cliché often applied to the legal profession is the notion that “when all you have is a hammer, everything looks like a nail.”  But this captures only a part of why the homogeneity of those who can supply legal products and services has results in such stagnation in the nature of legal products and services.   Apparently when everyone has a hammer, nobody can even imagine a world without nails."

Thursday, 18 October 2012

There's a lot of hurt caused in the name of free speech


I

Our reputations are both incalculably precious and yet exquisitely fragile.  A lifetime’s reputation for integrity, honesty, and fair dealing can be crushed to nothing in a moment.  All the more so, of course, in the Internet age.  The schoolyard plea that “sticks and stones may break my bones, but names will never hurt me” is just bravado.  All personal attacks hurt.  Public attacks do more than hurt, they cause harm.  It’s hard to hold your head high when the world around you is full of nasty gossip about you. 

The law has long respected this reality by providing the victims of false attacks with recourse in the form of the tort of defamation.  However, the law also protects our right to vigorous debate when we are speaking about important public issues.  Freedom of expression and debate are said to be the “very life blood of our freedom and free institutions.”

It is a truism that the idea of free speech only becomes interesting when someone says something we disagree with.  We all know the famous statement (usually attributed to Voltaire) “I do not agree with what you say, but I will defend to the death your right to say it,” but it’s easier to say this than to live it.  How many of us are truly willing to suffer the blows of a vicious, unwarranted verbal attack and yet defend the speaker’s right to attack us?

I have been thinking about this issue, and not just because bullying is back in the news this week.  Three of my friends have recently announced their candidacy for federal and provincial public office.  They are all fine people: Murray Rankin, the NDP candidate in the upcoming Victoria federal by-election, is one of Canada’s leading environmental lawyers and a recognized expert on information and privacy law.  Suzanne Anton and Andrew Wilkinson, both candidates for the BC Liberal nomination in Vancouver Quilchena, already have fine records of public service in municipal and provincial government.   Each of them would be a credit to elected office.  And yet it is only a matter of time before the most hurtful things will be said about them. 

I can remember the first time I was accused of being a Nazi.  It was in my constituency office.  It was whispered in my ear.  I will never forget it.   I lost track of the number of times that the impact of the spending reductions we made during my term as a Cabinet Minister was compared to the Holocaust.

All in the name of free speech.

II

A recent decision of the BC Supreme Court provides a powerful illustration of how vulnerable we are to public criticism, no matter how vicious, and how little there is that the law will do to stop it.  The case is called Mainstream Canada v. Staniford, 2012 BCSC 1433. The key issue in the case is the defence of fair comment in defamation cases.   The application of that defence in this case shows just how far the law will go to allow us to say hurtful things about each other. 

The plaintiff in the case was Mainstream Canada, one of three companies that dominate salmon farming in B.C.  The defendant Don Staniford has for many years campaigned against salmon farming around the world.  The trial judge described him as an “activist, author and environmental campaigner” who is “extremely proud” of the work he has done to attack the salmon farming industry. 

Mr. Staniford’s attacks are virulent, to say the least.  In January 2011 he issued a press release in Vancouver, launching a campaign under the slogan “Salmon Farming Kills.”  The gist of his attack was that farmed salmon causes cancer, akin to smoking, and that the salmon farming industry is as odious and dishonest as the tobacco industry.  Mainstream sued for defamation.

Mr. Staniford responded by blogposting personal insults about opposing witnesses during the trial.

The judge summarized her extensive analysis of Mr. Staniford’s statements in the following passage (at para. 198):
… Mr. Staniford does not in fact do anything to conceal the spite, ill-will and contempt he holds for industrial aquaculture and salmon farming in general, and Mainstream … in particular. I think the evidence is overwhelming in this regard. Mr. Staniford’s Internet postings are filled with insulting and demeaning comments and cruel caricatures. He ignores and disdainfully dismisses peer-reviewed science (…) when the conclusions conflict with his own views. The language in his publications – including the mock cigarette packages in particular – is extreme, inflammatory, sensationalized, extravagant and violent. The word “kills” is everywhere.

The judge held that Mainstream had established the requirements for defamation.  That is: (1) Mr. Staniford’s words would, in the language of the law, “tend to lower Mainstream’s reputation in the eyes of a reasonable person”; (2) they referred in fact to Mainstream; and (3) they were communicated to others.

These are all the elements of the tort of defamation, a species of civil wrong that is intended to protect our reputations from falsehoods spoken by others.

There are two familiar defences in defamation cases.  One is justification.  A defendant can “justify” his statements by proving that they were in fact true.  It’s okay to shout out in a public square that someone is a horse thief if he is.  Mr. Staniford did not offer this defence.  That is, he did not seek to prove that farmed salmon actually kills people.

Instead Mr. Staniford relied upon the defence of fair comment.

In essence the defence of fair comment is intended to allow us to express strong, critical opinions even if the words used would otherwise be defamatory, provided that we are speaking about a matter of public interest.  Justice Binnie of the Supreme Court of Canada in a 2008 case called WIC Radio Ltd. v. Simpson, 2008 SCC 40, said (at para. 1) that the defence of fair comment “helps hold the balance in the law of defamation between two fundamental values, namely the respect for individuals and protection of their reputation from unjustified harm on the one hand, and on the other hand, the freedom of expression and debate that is said to be the “very life blood of our freedom and free institutions”.

The elements of the fair comment defence (as modified in the WIC case) are the following: 

  1. The comment must be on a matter of public interest;
  2. The comment must be based on fact;
  3. The comment, though it can include inferences of fact, must be recognizable as comment;
  4. The comment must satisfy the following objective test: could any man honestly express that opinion on the proved facts?
  5. Lastly, even if these requirements are satisfied, the defence is not available if the defendant was “actuated by express malice.”


The application of these requirements in practice is often difficult.  For example, lawyers are readily able to argue that although their client said that Mr. X was a horse thief, what he really meant was “In my opinion, anyone capable of doing such things as Mr. X has done is no better than a horse thief.”

This is more or less what happened in the Staniford case.  Although Mr. Staniford’s statements are very clear and, in form, very factual – he says without qualification that salmon farming kills people - the judge accepted that Mr. Staniford’s statements were expressions of opinion.

Here is how the trial judge expressed the submission of Mr. Staniford’s lawyer on this issue:
“if Mr. Staniford was an honest man expressing his genuine opinion on a subject of public interest then, no matter that his words conveyed derogatory imputations, no matter that his opinion was wrong or exaggerated or prejudiced and no matter that it was badly expressed so that people read all sorts of innuendo into it, nevertheless he has a good defence of fair comment.”
The judge agreed.  She held that all of the elements of the defence were established: the safety of fish farming is a matter of public interest; Mr. Staniford’s opinions were based on some facts (although the supposed “facts” are wholly discredited – there is no scientific evidence that eating a farmed fish is harmful to your health); that the comments, although stated in a form which appears to be factual, were just comments, and, in respect of the last element (at para. 184), that “Mr. Staniford (at least) believes what he says.”

It is impossible to read this judgement without concluding that what the law calls the defence of fair comment should really be called the defence of unfair comment.  The judge in this case concluded that Mr. Staniford was a closed minded, deeply prejudiced and “unreliable reporter of facts” who would “say almost anything to further his own agenda.”  He “believes his own press, even when contradicted by other, contemporaneous documents.”  (para. 188)  He “cruelly and publicly mocks people who have a different point of view,” and aims to “ridicule and humiliate people who do not agree with his views.”  In the judge’s view, the evidence was “overwhelming” that Mr. Staniford does nothing to “conceal the spite, ill-will and contempt he holds for industrial aquaculture and salmon farming in general.”  In short, nothing about his attack on farmed salmon is in any sense fair. 

There is, however, one more element to the defence of fair comment. The defendant cannot rely upon that defence if it can be shown that he was “actuated by express malice.”
On this point, the judgement is very interesting.  The judge has no hesitation in finding that the publications in issue were actuated by Mr. Staniford’s express malice towards Mainstream.  But, she goes on to say, that this was not Mr. Staniford’s dominant purpose.  His main goal, in her view, is to end industrial aquaculture.  Accordingly, she holds, he is entitled to rely upon the defence.

We will see what the Court of Appeal makes of this conclusion.  In the first place, the way the test is usually expressed does not require that malice be a dominant purpose.  Arguably, any finding of malice ought to deprive a defendant of the benefit of the fair comment defence, simply because the point of the defence is to permit debate on matters of public interest, not to licence personal attacks.  Secondly, it is hard to see how any plaintiff in circumstances similar to Mainstream could ever prove a case of defamation in any situation where the attacks in question relate both to a public issue as well as personal reputation. 

But apart from the question whether there is a good appeal here, I am interested in what this body of law says about our values as a society.

III

Reflect again on Mr. Staniford’s statements, and ask yourself what it would be like to be an employee of Mainstream and its parent company, carrying on lawful businesses, companies which the trial judge said, “model the behavior of a responsible corporate citizen”.  Mr. Staniford launches a highly public campaign. Its message, shouted from the rooftops, is that the product you make kills people.  You are personally demeaned and ridiculed for appearing as a witness in court on behalf of your employer.   What you learn is this: in our democracy, free speech is more valued than decency, fairness, self-respect, self-restraint, intellectual integrity, or responsibility.  And when it comes to public debate, the law rewards the most outrageous and hurtful among us.  It’s a harsh lesson, I think.  

Thursday, 27 September 2012

A few more thoughts about cannabis law reform


On Monday of this week I participated in a panel discussion at the annual convention of the Union of British Columbia Municipalities on cannabis legislation.  The context for the discussion was a resolution put before the convention calling on governments to “decriminalize marijuana and research the regulation and taxation of marijuana.”

Three of the panelists spoke in favour of the resolution, including me.  Three others spoke against it.

On Wednesday the resolution was passed by the UBCM convention delegates.

The resolution does not, of course, change the law.  But it is an important step along the road of building the political momentum necessary to cause the federal government to abandon the legislated prohibition against marijuana.

Before I continue, I need to say one thing.  I do not think the best next step in cannabis law reform is decriminalization.  I think we should move directly to a taxation and regulation regime.  Decriminalization would at least address one of the most pernicious harms in the current legislation, namely the fact that possession of 31 grams of cannabis is a crime potentially punishable by up to seven years imprisonment, a breathtakingly disproportionate response to the harm (if any) caused by carrying an ounce of crushed plant leaves around in your pocket.  But decriminalization is only a halfway measure.  In a decriminalized regime, organized crime will still have control over the market for cannabis; the social harms associated with organized crime’s control will continue; and so, too, will the reality that no consumer will really know whether what has been sold to them is really cannabis, or has been doctored.  But although the UBCM resolution took a more cautious approach, I was delighted to be able to try to persuade the members of the UBCM to take at least this step forward.

One of the benefits of the panel discussion on Monday morning was the opportunity to hear the arguments of those who oppose reform.

I listened carefully to the presentations of the three individuals who spoke against the resolution: Daryl Plecas, a professor of criminology at University of the Fraser Valley, Dave Williams of the RCMP’s drug enforcement branch, and Commander Pat Slack of Washington State’s Snohomish County drug task force.

Commander Slack gave me my favourite moment of the morning when he argued against taxation and regulation by saying, “anything government touches gets screwed up”.  I thought that was a fun argument to make in a room full of, well, er, um, government, that is, municipal councillors and mayors.  Telling them they screw up everything they touch seemed a bit bold.

But more seriously, and interestingly, none of the speakers defended the status quo.  I was delighted to see a consensus of panel members that the criminalization of marijuana has completely failed to achieve its stated purpose, namely to deter its use. 
 
Now you might think an acknowledgement that the policy status quo is a failure would be a great platform for a discussion about the kind of reform that should take place, but that was unfortunately not the case. 

Some of the arguments against the resolution were about whether reform would in fact lead to a reduction in gang violence, or have any of the other beneficial effects argued for by organizations like Stop the Violence and Law Enforcement Against Prohibition (LEAP).  Upon reflection, it seems to me that most of these arguments – and they were not supported by any empirical evidence - are really just expressions of fear and uncertainty about change.  No one contends that the legalization and taxation of marijuana would bring an end to organized crime.  But it is surely a reasonable proposition that, done properly, it would reduce or even eliminate the investment of organized crime in the manufacture and distribution of marijuana.  This is exactly what happened when alcohol prohibition was abandoned.

There is an enormous investment in the status quo, and that can make the project of reform a bit daunting.    Cannabis criminalization has created the law enforcement equivalent of what US President Eisenhower once famously called “the military industrial complex” – in this case it is a massive criminal justice system complex, dedicated to perpetuating the notion that marijuana is an evil that can only (or most effectively) be eradicated by more and more expensive law enforcement.  Even though it is perfectly clear that this expenditure has not had its desired effect.

One of the arguments I heard on Monday was made by Tom Siddon, who for many years was a BC MP and federal Cabinet Minister, and is now a local government councillor in the Okanagan.  According to Province columnist Mike Smyth, Mr. Siddon said this during Wednesday’s debate (he said something similar during the Q&A session on Monday):

"We've fried enough brains already… I worry about where we are leading our nation and the values we set as elected politicians. This is not a remedy. It is going to aggravate the temptation of young people to move from marijuana ... to being hooked on heroin, cocaine and chemical designer drugs ..."

It’s wonderfully colorful language.  But what does it mean?  Well, first of all, if you think about it, the argument that decriminalization would aggravate the use of marijuana must assume that criminalization is an effective deterrent. But as I have already said, no one in the panel on Monday suggested this was true.  The evidence is clear that prohibition has not reduced the supply of cannabis or deterred its use.  If anything, it has had the opposite effect.  During his remarks on Monday, Professor Plecas (who opposed the resolution) stated that 585,000 British Columbians are known to have used marijuana.  That seems to me to be overwhelming evidence that prohibition has completely failed to prevent the harm which concerns Mr. Siddon.

Like Mr. Siddon, I worry about the values set by elected politicians.  But I worry about them in a different way.  When politicians make and defend laws that are ineffective, and indeed are repeatedly and flagrantly ignored and violated by a large section of the public, the message we send is that we should not take the law seriously. More specifically, responding to Mr. Siddon’s concern for young people, the message is that young people need not worry about respecting the law - the law, in effect, is seen as a joke.  This is a profoundly problematic state of affairs for anyone who believes in the importance of the rule of law.

Equally fundamentally, however, I worry that implicit in this statement is the idea that as a society we can only discourage something by criminalizing it.  This seems to me to be a complete abandonment of our role as citizens, parents, friends, neighbours and community members. Professor Plecas may be right when he says (as he did on Monday) that the use of marijuana will actually only cause real harm to a very small number of people.  If so, then Mr. Siddon’s statement is empirically unsound.  But it’s what that statement means for the role of the state that really concerns me.  Is it really the job of government to criminalize everything that might cause harm?  Of course not.

(Right now you should start making a list of all the things that are harmful and yet are not even regulated, let alone prohibited.  Think of digitalis: it is toxic when consumed, and yet it is not against the law to grow foxgloves in your backyard.  Ah, you say, but everyone knows digitalis is poisonous?  Well, you just made my point.)

Speaking as a lawyer and former legislator, I can tell you what governments usually do when they are faced with a harm that is sufficiently serious to warrant state intervention.  They decide to regulate it.  And that of course is what I think ought to happen with marijuana.  Regulate it and tax it.  Just like alcohol and tobacco.  With all the risks associated with poorly designed regulatory schemes, like the growth of underground markets when governments decide to overtax.  But also with all the opportunities to inform, educate, persuade, and properly fund public health and treatment programs to prevent use, and help those who fall prey to addiction. And save the criminal law for the truly pernicious harms.

If we were starting from scratch, I have no doubt what governments would do today about marijuana – they would tax and regulate it, with the benefits and costs I have just described.  They would not try to prohibit it.  The lessons of our experience in this regard are clear: prohibition is a failure. In British Columbia prohibition gives control over the market in cannabis to criminals who shoot each other on our streets.  No one seriously defends the status quo. Perhaps the only thing, really, that holds us back from reform is the fear of change.

Friday, 27 July 2012

For Ismailis, legal justice is non-adversarial


In a recent blog posting (July 16) I argued that there are many kinds of legal disputes where courts ought to be seen as a “valued, but last forum.”  This is not, in my view, just because courts are complex, slow, expensive and inefficient institutions, but because some legal disputes are better resolved by other means.

My view is that it is past time for us to refer to these other pathways to legal justice as “alternate” dispute resolution; rather, they need to be seen as belonging, with the courts, in the mainstream.  I say this not to undermine the courts as fundamental institutions, but rather to enlarge and enrich our conception of legal justice to embrace a broader set of processes and institutions.

Such processes and institutions already exist.  Arbitration is the preferred dispute resolution mechanism for almost all transnational commercial litigation. ( It is interesting that while judges are quick to remind us of the importance of adjudicative independence in our justice system, litigants in commercial disputes would prefer to choose and pay their own adjudicators, and yet  arbitration is nothing if not a form of rent-a-judge, to put it crudely.)  Mediation is increasingly preferred for relationship-based disputes, where there is an issue that needs to be resolved, but the parties will have to continue to work or live with each afterwards.  Other examples could be given.

In this regard, I was recently provided with a copy of a remarkable witness statement filed in a proceeding in the Supreme Court of the United Kingdom.  The witness is Noordin Nanji, of Vancouver.  He makes the statement on behalf of His Highness Prince Aga Khan Shia Imami Ismaili International Conciliation and Arbitration Board (“ICAB”), of which he is Chairman.  The statement explains that ICAB is “part of a global institutional framework that provides a dispute resolution system for members of the Shia Imami Ismaili Muslim community”, usually referred to as the “Ismailis”, on a national and international level.

The ICAB System seeks to encourage the amicable resolution of conflict through impartial mediation, conciliation and arbitration on a voluntary basis, i.e. the parties must be willing to seek an amicable resolution of their dispute.  While the dispute resolution process followed by the CAB System respects the religious principles and values of the community, it is always within the confines of the applicable local law.

Here follow some extracts from the witness statement to illustrate the focus on non-adversarial dispute resolution.  I do not offer these because I think our legal system should adopt Ismaili dispute resolution processes, but simply to illustrate that the adversarial system is not universally regarded as the best way to solve legal disputes.

3.2          The 1986 [Ismaili] Constitution established a dispute resolution system whereby Conciliation and Arbitration Boards would operate at both the national and international level. The system operates in 17 jurisdictions around the world. In some countries, notably India and Kenya, the decisions of such Boards, particularly in matrimonial and personal law matters, though reviewable by the courts, are recognised by the law.

3.7          The primary objective of the CAB System is to assist Ismailis to resolve disputes in an equitable, speedy, confidential, cost effective, amicable and constructive manner and in an environment that is culturally sensitive.  Processes are designed to operate in an equitable manner. Moreover, the Boards, whether arbitrating or mediating, are required to operate in accordance with applicable local laws. In arbitrating any dispute, a panel appointed by one of the Boards will apply the national laws applicable to the relevant dispute, not any "religious" law.

5.2          Once a dispute arises, it is the practice of the Boards first to attempt to resolve any dispute by way of mediation or conciliation rather than arbitration, even in cases where the parties have referred to arbitration only in their agreement. Rules of Conciliation have been adopted formally by the Boards for disputes resolved by way of conciliation.

5.5          The experience of the Boards is that more than 99% of disputes referred to the Boards are dealt with by way of mediation or conciliation. It is only a handful of cases that are dealt with by way of arbitration.

5.6            It is strongly felt  within  the community  that  one  of  the  reasons for  this  high incidence of mediation and conciliation is the fact that the parties, and indeed the members  of   the   community,  have  confidence  that   their  rights   will  not   be compromised and  that  a  fair  and  equitable  resolution  of  their  dispute  will  be achieved through mediation or conciliation by the Boards.

6.6            Muslim ethics, custom and practice strongly encourage the amicable settlement of disputes that may arise in the community between believers. It is recommended that, when a conflict arises between members in the community, attempts should be made to find a peaceful solution either through mediation or impartial conciliation or arbitration between willing parties. Voluntary and impartial conciliation and arbitration for the amicable resolution of disputes is a deeply embedded practice in the Ismaili community going back 14 centuries ... It is from that long tradition that the present CAB System has emerged.

6.8          In essence,  it  is  believed  in the  Ismaili community, as in  the  broader  Muslim community, that when a problem occurs between brothers, the people around should intervene to solve it, and they should pursue all means in order to make peace between them. That brothers in religion should be willing to forgive each other and to reconcile their disagreements is testified to in a large number of Prophetic traditions, both the Sunni and the Shia, as  well as in the traditions of  the Shia Imams. For instance, Imam Ali, the first Shia Imam, has said:

"Do not separate yourself from  your brother unless you have exhausted every approach in trying to put things right with him. ...  Do not be harsh with your brother out of suspicion, and do not separate from him without first having tried to reason with him... Seek reconciliation with your brother, even if he throws dust at you." (The Sayings and Wisdom of Hazrat Ali, published in England, 1994)

6.12        In sum, therefore, the broader Muslim tradition, and specifically the Shia Ismaili Muslim tradition, defines and fosters an ethos for amicable dispute resolution that, unlike the "secular" litigation culture, is non-adversarial. The notion of the winner and the vanquished, where the winner may take all, is completely alien to the teachings of the Ismaili Imams.