Archive for the Blog Category

DEMOCRACY NOTWITHSTANDING

On September 17, 2018   /   Blog, News, The Chairman's Corner  

The kerfuffle surrounding the recent announcement of Doug Ford’s intention to invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms is an interesting one.  Usually when the Right and Left square off on some issue of the day, it is the product of one of those classic conflicts of competing sacrosanct principles; usually freedom of speech versus the equality rights of one of the many groups recognized and protected by the Charter.  But in this case, each side is basing their support or opposition to this government action as a defence of the same fundamental right, that of democracy itself.

Pointing to the recent and convincing electoral triumph of the Conservatives under his leadership, Mr. Ford is outraged by the action of the Ontario Superior Court to enjoin the legislation that would reduce the number of Toronto City Council seats from 47 to 25.  “Do we not live in a democracy?”, he blusters.  Meanwhile, opponents of the legislation salute the injunction that was issued largely based on the lack of consultation with any and all interested parties before imposing the new municipal governance structure.  “The judge has upheld the fundamental principle of democracy!”, they crow.

Truth is, Ontarians don’t live in a democracy.  That is not a problem; no nation in the world is a true democracy, because no one would want to live in a pure democracy.  We live in a Constitutional Democracy, meaning that all citizens implicitly agree to submit to the will of the majority on the condition that the majority be obligated to honour certain fundamental guarantees with respect to the rights of the minority.  That is what our Constitution, including the Charter of Rights and Freedoms, does.  Doug Ford’s impressive majority doesn’t override the right of the courts to rule on whether legislation properly honours the guarantees provided to every minority as part of their agreement to otherwise accept majority rule.

But we also live in a Representative Democracy, which means that all citizens, even citizens with a significant interest in a particular piece of legislation, do not have an individual right to be heard on that issue unless such an obligation to consult has been legislatively or regulatorily hardwired into an administrative process (a la the Northern Gateway Pipeline approval process).  No such right exists in the context of the exercise of the provincial government’s right to legislate with respect to the composition and structure of municipal governments in Ontario.

So here we are in a dispute between those who believe that we live in an unfettered Representative Democracy and those who believe that we live in a Constitutional Democracy that effectively obliges the government of the day to consult on all matters within its jurisdiction to legislate.  The courts have found in favour of the latter position.  There are certainly grounds for appeal of that finding, and for precedent reasons the Ford government would be wise to exercise its right of appeal.

But that is only part of what they intend to do.  They are also going to invoke the fail safe created in the 1982 Constitutional repatriation exercise that was required to get all of the provinces onside that allows any government to impose legislation notwithstanding a finding that it is not in accordance with the Charter of Rights and Freedoms.  While the provision is silent on when it can be invoked, it has always presumed that it would only be used in circumstances in which the urgency of the legislation justifies the temporary abridgement of guaranteed rights.  I say temporary, because such overrides are only effective for five years form the date on which the government has exercised that right.  Of course, it is also always presumed that the invocation of such an undemocratic power would be an act for which it could and would be held accountable in the next election.

The Ford Government is invoking the notwithstanding clause because the municipal election that they are looking to transform by the reduction of available seats is just over a month away.  Any successful appeal would be irrelevant to the formation of the Toronto’s next City Council, and thus could only affect the next municipal election that would occur only after the end of the term of the current provincial government.  This certainly sounds politically urgent, but is resolution of the actual public policy issue really that urgent?  The savings to even Toronto residents of a reduced Council is negligible in the context of the overall municipal budget.  The effectiveness issues seem to involve a trade off between the efficiency of the government process versus the likely decreased effectiveness of a smaller number of councillors’ offices at addressing the many specific city service concerns of residents.  Clearly a Council of one would deliver the most efficient legislative process and a council of 100 would provide more effective management of individual ratepayer concerns, but what the optimal number to balance these two requirements is a tricky one that might persuade a responsible government to consult broadly, not because they are required to by law, but because it is prudent.

The exercise of the notwithstanding clause is always problematic, but it is a provision that was negotiated in the Constitution.  One would expect that it would be invoked in only the most urgent and demonstrably democratically justifiable circumstances.  Indeed, the only three uses of the clause to date have either been of demonstrable urgency (Saskatchewan’s Public Service back to work legislation in 1986 and funding of non-Catholic students in Saskatchewan Separate Schools in May of this year) or a fundamental public policy position that had been expressly promised in an election campaign (Quebec’s 1988 introduction of French language signage laws). Even if the Ford government had campaigned on the specifics of the proposed legislation in the spring and the court had invoked the Charter in the fall to subvert the will of the government, the urgency of this matter would still not seem to justify the invocation of the notwithstanding clause.  But of course, that is not the case here; the size of the Toronto City Council was never mentioned in the recent provincial election.

Now, if the court’s overrule any legislation passed to effect the well publicized “buck-a beer” promise…

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POPULISM AND POLITICS IN THE AGE OF SOCIAL MEDIA

On August 16, 2018   /   Blog, News, The Chairman's Corner, Uncategorized  

Both Canadians and Americans are once again debating the responsible use of Twitter as an instrument of political discourse.  The circumstances giving rise to that debate, however, could not be more different, and demonstrate a fundamental divergence in the expectations of the electorate in the two countries.

On August 2nd, Canadian Foreign Affairs Minister Chrystia Freeland expressed alarm at the imprisonment of Saudi women’s and civil rights activist Samar Badawi, and confirmed that Canadians “continue to strongly call for the release of both Raif and Samar Badawi” (Raif Badawi is Samar’s brother, whose wife and children fled from Saudi Arabia to Canada as refugees following his arrest).  This was followed the next day a comparable Tweet on the Foreign Policy Canada account noting the same concern and “urging” Saudi Authorities to “immediately release them”.  In response to this affront, the Saudi government has expelled the Canadian ambassador, put a halt to any new trade or investment deals with Canada, cancelled all Saudi airline flights in and out of Canada and recalled all Saudi students currently studying in Canada.

Many have decried this imprudent use of Twitter as tool of diplomacy, and much scolding has been directed toward the Trudeau government, which might be fair if this were the first and only way that the Saudi government had been made aware of Canada’s views on these issues.  However, the government has made clear that these views had been made known to the Saudis through all normal diplomatic channels, and this assertion has not been challenged by any critic, including the Saudis themselves.  Fair enough, continue the critics, but then what was the value of this exercise in virtue signalling other than to embarrass the Saudis publicly and encourage if not foment domestic Saudi opposition to their policy?

Let’s deal with the meddling in domestic politics angle first.  Look at the wording of the tweets.  Chrystia Freeland is “strongly calling” for the prisoners’ release.  The FP tweet merely “urges” the government to immediately release them.  While the “immediately” part of the second tweet might sound a little shrill, they only upgraded the “strong call” to an “urge”; still well short of even a “demand” for which one could arguably anticipate consequences to refusal to comply.  It really sounds like they were carefully moderating the response to that which was the minimum required of a progressive government of the country in which the wife and children of one of the imprisoned activists has sought refuge to demonstrate to it s own domestic audience that is was fairly representing the values and interests of Canadians.  Yes, it was virtue signalling, but not gratuitous virtue signalling.  Given all that, the extreme Saudi response seems by far the more unreasonable action.

On August 14th, prolific Twitter star and sometime Head of State of the most powerful nation on the planet Donald Trump fired off the following tweet in response to the revelation that former Trump aide Omorosa Manigault Newman had secretly recorded conversations in and from the White House regarding her recent dismissal:

“When you give a crazed, crying low life a break, and give her a job at the White House, I guess it just didn’t work out.  Good work by General Kelly for quickly firing that dog!”.

To voice and perhaps vent his disappointment in Omorosa, the President could have sent her an e-mail to that effect (but perhaps more coherently expressed), so there had to have been a shaming and our virtue signalling strategy at play here.  To that end, some have pointed out that the recording of conversations in the White House generally and in the Situation Room in particular, is certainly against White House policy and might be illegal.  Once again, fair enough.  So let’s look at the content of the tweet; no reference to breaches of policy or law or its consequences, just mocking references to mental health issues and emotional instability and a dehumanizing insult.  This was pure virtue signalling, where the virtue on display is a vague but unmistakable hostility toward the trifecta of people with mental health challenges, women and minorities.

Even when it comes to Twitter abuse, Canadians are laughably but commendably polite.

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KEEPING THE GENIE IN THE BOTTLE

On July 16, 2018   /   Blog, The Chairman's Corner, Uncategorized  

We all have a lamp.  Sooner or later, all of us learn that if you rub the lamp, you will summon forth a genie.  In a perfect world, we would all make this discovery organically, at no one else’s prompting, at a time in our life at which we have been appropriately armed, by our parents or someone else with our best interests in mind, with a sophisticated understanding of the consequences, both good and bad, of summoning that genie.

But that is not how life works.  It never has.  Because others know that they have a lamp, they also know that everyone else has a lamp.  Some will show people their lamp when they shouldn’t; others will ask to see our lamp.  Even more will talk a lot about lamps and genies, and will inevitably make the genies sound even more mystical than they are.   And once freed, it is impossible to get the genie back in the bottle, and that genie, once freed, can cause havoc for individuals, families and society.

So we have to arm our children with an understanding of genies as soon as they are capable of understanding them.  We can’t wait until we think they might have otherwise been inclined to rub the lamp, because there are sadly others who might be looking to rub their lamp themselves.  And we have to keep that dialogue going, with increasing sophistication, always arming them with information about the genie that is appropriate to their capacity to understand.

It is not an easy task, and parents have the central role in this process.  Whether they know it or not, how they model healthy lamp management by their deeds will probably impact their children even more than their words, but their words matter as well.  But we cannot leave this task to parents alone, because not every parent can or will model or teach good lamp management, and the societal impact of unmanaged genies is simply too high.

The school system offers an appropriate place to reinforce or, if necessary, introduce lessons about managing lamps and genies.  Creating curriculum to do this is difficult; not every child and adolescent of the same age is at the corresponding same stage in terms of their lamp-awareness.  But again, their vulnerability to predatory lamp-rubbers is unfortunately often inversely correlated to their own level of lamp-awareness.  Genie lessons will inevitably be revelatory and unsettling for some, but necessary.  Parents need to make themselves aware of what their children are learning about genies, and provide context, both culturally and morally, for what they are learning.

Parents might well be challenged by their children when the context into which they cast that learning conflicts with a more inclusive view of genies that they might have received at school.  Parents might find themselves having to concede that others in society take a broader view of what you can do with your genie than they do, and might be required to make the case for that more restrictive view of what their child may wish for from their genie.  This may cause some conflict in the home, but far less strife and conflict than that which can arise when lamps are rubbed without any understanding of the power of the genie that is being summoned.

Doug Ford became the Premier of Ontario promising that parents will be left with the power to decide when the genie is released from the bottle.  Sadly, history has shown that no amount of lamp rubbing will ever give anyone that power.

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