Regional Perspectives

The Trump Threat to America’s Legal Order

In 1975 President Richard Nixon’s former attorney general, John Mitchell, was convicted on criminal charges of conspiracy to plan the break-in of the Democratic National Committee’s offices during the 1972 presidential election. He was also convicted of obstruction of justice and perjury. The purpose of the break-in was political: to obtain information about how the Democrats planned to campaign against Nixon. Mitchell served nineteen months in federal prison for his role.

During his 2024 presidential campaign, Republican nominee and former president Donald Trump stated unequivocally and repeatedly that he wanted to use the investigative and prosecutorial departments of the federal government, including federal law enforcement agencies and the military, to “go after” his political opponents by weaponizing the Department of Justice: “. . . if I happen to be president and I see somebody who’s doing well and beating me very badly, I say go down and indict them.” He said he would appoint a special prosecutor to “go after the most corrupt president in the history of the USA, Joe Biden, the entire Biden crime family, and all those involved with the destruction of our elections.”

He has threatened similar tactics against other political opponents, including Vice President Kamala Harris, Hillary Clinton, former FBI Director James Comey, Barack Obama’s Secretary of State John Kerry, Former Speaker of the House Nancy Pelosi, former Republican Congresswoman Liz Cheney, soon-to-be former special counsel Jack Smith (appointed to investigate Trump’s role in the January 6, 2021 insurrection that led to the attack on Capitol Hill), Meta CEO Mark Zuckerberg, New York Attorney General Letitia James (her office sued Trump and his real estate business for committing fraud), recently reelected California U.S. Senator Adam Schiff, and Manhattan District Attorney Alvin Bragg (his office won a conviction of 34 felony counts against Trump for falsifying business records related to hush money payments to an adult film star) — to name a few. Even during his first term, Trump moved in this direction. In about a dozen instances, the Justice Department began investigations at Trump’s insistence. Trump has also threatened to use the National Guard and the military against political opponents.

Punishing the Media

By one count, Trump has issued over 100 threats to investigate and prosecute political opponents, including media outlets and reporters he views as his enemies. To that end, Trump has threatened to withdraw the broadcast licenses of broadcast media outlets, including the major television networks, licensed by the Federal Communications Commission because he dislikes their news coverage. In other words, the crimes that sent John Mitchell to prison—using offices and personnel of the government to investigate, pursue, and discredit political opponents—will be the policy of the Justice Department under Trump. To be sure, some have questioned the likelihood or feasibility of his prolific threats. But few doubt their sincerity.

Since Watergate, succeeding presidents and attorneys general have embraced a two-pronged policy to depoliticize the administration of justice: that investigations and prosecutions should be guided by evidence, not politics; and that the Justice Department should operate independently of the White House. But this internal rule carries no weight if the attorney general and the president decide to disregard it.

Looming behind Trump’s vision of a politicized presidency is the Supreme Court’s ruling this past July in the case of Trump v. U.S.—the most consequential and troubling court ruling on presidential power in American history. In it, the court majority ruled that “official acts” based on the president’s “core constitutional powers” are “absolutely immune” from criminal prosecution (or even investigation). Official acts “within the outer perimeter” of official powers are entitled to “presumptive immunity,” the court said. Actions that are purely private could be subject to investigation and prosecution. A logical problem immediately arises: What if a president uses his or her powers of office in a criminal way? What if a president issues a pardon in exchange for a bribe? Or directs the attorney general to order the arrest of a critic of the president? Or, as Justice Sonia Sotomayor asked in her dissenting opinion, orders as commander-in-chief that the Navy’s SEAL Team 6 assassinate a political opponent?

Looming behind this decision was an unmentioned but pivotal constitutional theory called “the unitary theory of executive power.” All six conservative justices on the court subscribe to this theory (three of the six were appointed by Trump). Developed during the Reagan administration in the 1980s, it promotes an inflated and tendentious view of the president’s constitutional powers: that presidents have complete and exclusive control over the executive branch, including foreign policy preeminence, that the other two branches of government may not intrude on any presidential powers, and that there is no sharing of powers among the three branches of government. Yet the essence of the Constitution’s checks and balances system is power sharing. In short, the unitary theory is tailor-made for a president like Donald Trump who sees his every utterance as equal to law. This neo-monarchical view of executive power was precisely what the Constitution’s Founders rejected when they wrote the document.

Pardon Me

To cite another instance of Trumpian constitutional power claims, the many legal problems he has encountered has prompted him to declare that, as president, he could pardon himself (the pardon power is expressly granted to the executive in the Constitution) were he indicted or convicted in federal court, though it would not apply to state court decisions. It is clear that Trump will now not face such a prospect as long as he occupies the Oval Office, although it is possible to imagine a circumstance where he might decide to pardon himself for future actions. While the Constitution and the law do not provide a definitive answer as to whether it covers a presidential self-pardon, the weight of evidence overwhelmingly militates against it.

Imagine a hypothetical president. President X is in the Oval Office having an ever-more-heated argument with a cabinet secretary. I n a fit of pique, the president grabs a ceremonial sword, recently given to him by the Sultan of Brunei, and runs the cabinet secretary through, killing him then and there. Assassinating a high government official is a federal crime, and the White House is federal property. The president then apologizes to the nation and also pardons himself. No investigation, no prosecution, no conviction. The president has just gotten away with murder. Patently outrageous? Of course. But this hypothetical illustrates the fatal problem with those who claim that the president’s pardon power extends to self-pardons. A self-pardon violates two fundamental, bedrock principles. First, as constitutional founder and fourth president James Madison wrote in Federalist Paper 10, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” Second, a self-pardon allows the president to place him or herself above the law, which is utterly incompatible with any notion of law in a democratic society. Certain legal principles do provide presidents with a degree of protection not afforded other Americans, but these are specifically tailored to the president while in office and in service to that office’s effective operation, such as executive privilege. A pardon for crimes is both personal and everlasting. Presidents cannot have a self-pardon power because it cannot be contemplated in a system built on the core idea of the rule of law. As the Supreme Court said in an 1882 decision: “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”

These very concerns arose during the Virginia state convention called to ratify the new Constitution in 1788. One convention delegate objected to the idea of the president having the power to issue pardons because he might use the power to insulate himself from crimes in which he was involved. In reply, James Madison countered that “if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; [and] they can remove him if found guilty.” That is, presidential use of the pardon power to conceal the president’s role in illegal activities would be an abuse of that power and therefore provide just cause to remove the president from office.

Self-pardons aside, Trump has already made clear that he plans to pardon those who assaulted the Capitol in 2021, who he has called “patriots” and “hostages.” And it’s a big number: over 1000 rioters have been convicted, with over 650 of them receiving prison time. Trump’s power to do so is indisputable, though the wisdom of it is not.

Weaponizing the Government’s Prosecutorial Offices

Like the Justice Department, Trump also has plans to bring the federal government’s chief law enforcement agency, the FBI, under his control. After forcing out then-Director James Comey, Trump appointed Christopher Wray in 2017. But when Wray refused to bend to Trump’s wishes, Trump became sharply critical, and it is widely understood that he will replace Wray in 2025 with someone who will accede to Trump’s wishes to “reshape the FBI’s leadership in his own image.” Chief among Trump’s grudges against the FBI was the 2022 search it conducted of his Mar-a-Lago home in Florida, based on a lawful subpoena. In violation of federal law, the former president had taken and kept tens of thousands of presidential documents, including classified and top secret papers, after repeatedly refusing to return them, as federal law requires.

Like the Justice Department, the FBI’s mandate is that it operate above, and removed from, the political fray. But the heads of both agencies are appointed by the president (subject to confirmation by the U.S. Senate) and serve at his pleasure. Trump’s efforts to bend federal law enforcement and other agencies to his preferences will be backed by the detailed blueprint for a second Trump term prepared by the conservative Heritage Foundation called “Mandate for Leadership 2025.” This 900-plus page document proposes a top-to-bottom remaking of the entire executive branch, with the goal of channeling it to conservate policies and goals by eliminating and reorganizing agencies, inserting political minders to oversee the work of hundreds of agencies and departments, diminishing neutral expertise founded on the civil service system, and politicizing its priorities. The spearhead for this effort is his plan to reclassify up to 50,000 current civil service jobs into political appointees. It would be the greatest change in civil service since its establishment by the Pendleton Act of 1883. During the campaign Trump distanced himself from the report, saying that he hadn’t read it. But in 2022, Trump praised the work of the Heritage Foundation, and most of the report’s authors and editors worked in the first Trump White House. He will undoubtedly draw on these and other like-minded people to fill executive branch jobs.

The blueprint’s recommendation for the FBI is to begin “an immediate, comprehensive review of all major active FBI investigations and activities” to close those that do not conform to Trump’s priorities. Among the report’s recommendations for the Justice Department are to “ensure that litigation decisions are consistent with the President’s agenda.” To consolidate White House political control, the report’s recommendations include: “Aligning Departmental Resources with Leadership Priorities Across All Components and U.S. Attorneys’ Offices” and “Ensur[ing] the assignment of sufficient political appointees throughout the department.” Similar actions are contemplated for every executive branch department.

A Government of Retribution and Revenge

In 1971, operatives working for President Nixon’s White House broke into the office of the psychiatrist treating Daniel Ellsberg, a former Pentagon official who leaked the Pentagon Papers—a then-secret report about the history of America’s involvement in the Vietnam War—to the press. The goal of the break-in was to find information about Ellsberg to discredit him in public. Nixon knew about and ordered the break-in a year before the Watergate break-in.

According to a recent article by senior federal judge Stephen S. Trott, who was appointed to the federal court by President Reagan, under the Supreme Court’s Trump ruling a president who did the same thing today might not be prosecutable. By Nixon’s reckoning, he was acting through his constitutional power as commander-in-chief, because he believed that national security was threatened by the release of the papers (history showed that fear was unfounded). Such an action today might well not run afoul of the law, thanks to the Supreme Court. And if we know anything about Donald Trump, it is that he would not hesitate to order such an action if he were so inclined.

In a 1977 interview, former President Nixon said about presidential power, “When the president does it, that means that it is not illegal.” Nixon later recanted the statement. Speaking in 2019 about the part of the Constitution that pertains to the presidency, Trump said “I have an Article II, where I have the right to do whatever I want as president.” Soon the country will discover how far Trump’s claim will go.

Robert J. Spitzer is Distinguished Service Professor of Political Science Emeritus at the State University of New York at Cortland and adjunct professor at the College of William & Mary School of Law. He is the author of 16 books, including “The Presidency and the Constitution.”

Visit the author at: https://sites.google.com/site/robertspitzercortland/

************************************************

The Trump Decision Reveals Deep Rot in the System

On July 1, 2024, the Supreme Court dispensed with the rule of law by effectively depriving the American people of crucial information we should have had before the November 2024 election. The question before the justices in Trump v. United States: Was Donald Trump immune from prosecution for the crimes the special counsel Jack Smith accused him of committing while president? The answer should have been obvious: No, presidents cannot commit crimes aimed at obstructing the peaceful transfer of power without facing consequences. Indeed, to my knowledge, no court has ever held that a president could be criminally immune under any circumstances.

Instead of delivering that judgment many months ago and allowing the trial to proceed, the justices have given Mr. Trump the gift of delay piled upon delay. By taking nearly 10 weeks to deliberate before returning the case to the district court — and by sending it back not even for immediate trial but for preliminary determinations that could trigger yet another round of appeals — they have extinguished any realistic hope of getting a verdict in the January 6, 2021 case before November 2024. American voters will enter ballot booths to choose between Donald Trump and President Biden without knowing whether Mr. Trump is guilty of the crimes with which a grand jury of his fellow citizens charged him. This decision may seem like a reflection of a rogue conservative majority that can, in time, be changed. But it is a sign of a much deeper problem — one that, when the time is ripe, will require constitutional reforms to solve and perhaps even a new branch of government.

Although the opinion features a high-minded disclaimer that the court is not granting Mr. Trump or any future president complete immunity, the practical effect of this decision is presumptive immunity for all future presidents and complete immunity by delay for Mr. Trump. This prospect was not lost on Mr. Trump. He repeatedly obtained delays to avoid trial, turning the legal machinery of the court system against itself to buy what he needed most: time — time to distract, delay, and spin his own version of the story as he sought to find a way to make these devastating charges disappear. If he becomes president again, he could have his new attorney general fire Mr. Smith and deep-six the entire prosecution. Regardless of whether you think Mr. Trump would have been acquitted or convicted in a trial, immunity by running out the clock is justice delayed and thus justice denied.

So how did our legal system get tripped up by his persistent delay strategy? And why does it have such perilous ramifications for the rule of law? The Constitution’s framers erected a structure they hoped would ensure, as far as humanly possible, that no person, including a president, would be above the law. But they also designed the prosecutorial arm of government — which now includes the attorney general and the special counsels — to be dependent on the president. As centuries passed, this has created serious problems. Special counsels now lack even the autonomy of independent prosecutors past because the dissent of Justice Antonin Scalia in a 1988 case called Morrison v. Olson announced what is now the accepted judicial view: that the executive branch should have sole appointment and discretionary retention power. As a result, Mr. Smith is less equipped to cope with extreme corruption at the top than his predecessors. The attorney general, for his part, serves at the president’s pleasure. That probably explains why Merrick Garland waited about 20 months to appoint a special counsel in this case. The New York Times and other outlets have reported that in the early days of his presidency, Mr. Biden adamantly opposed bringing charges against his predecessor, most likely worried that they would backfire politically. An attorney general unconstrained by the political pressures of presidential politics might well have brought charges earlier, ensuring that we had answers before Election Day.

All this is generally accepted. But this case has exposed an even more insidious problem caused by the structural relationship between any president and the Justice Department. During the oral arguments, Michael Dreeben, the able Justice Department advocate, had to acknowledge that, because the attorney general serves at the president’s pleasure, any president can effectively secure the equivalent of immunity for whatever crimes he might choose to commit. All a chief executive must do is pick an attorney general who would give him a formal opinion stating that whatever he planned to do would be legal — up to and including a coup reversing his own election loss. That advice of counsel would, under settled principles of due process, give the president an ironclad defense every bit as good as judicially conferred immunity. Should Mr. Trump return to the Oval Office, he could act with even greater impunity than he did in his first term, either by immunizing himself with an attorney general’s opinion (which would give him license to commit whatever crimes he chose to commit) or by using the Justice Department to engage in politically motivated prosecutions.

The American people can still vote in November 2024 to reject what would be a devastating blow to the survival of ‘government by and for the people.’ But whatever one believes about the likely outcome, we can and should also begin talk of amending the Constitution to repair these structural flaws. Whether Trumpism implodes later rather than sooner, we must remember that over the course of our history, we have made progress toward a “more perfect Union” only by imagining a better future and struggling to embody it in our fundamental law. Sometimes we’ve amended the Constitution after a national upheaval as convulsive as the Civil War. At other times, however, less traumatic events affecting the presidency, in particular, have prompted constitutional reform. To repair the profound and growing problem of presidential unaccountability, we must dare to design a separate branch of government, outside the existing three, charged with investigating and prosecuting violations of federal criminal laws.

The process of amending the Constitution is long and cumbersome and could take years. Although it requires no involvement by the president, it can happen only after our constitutional republic puts Trumpism behind it. But a decisive victory over the MAGA movement, either now or in the years ahead, could provide the political energy needed to make structural change possible, persuading a future supermajority in Congress to advance an amendment to repair the dangers embedded in our constitutional structure before it is too late.

Precedent exists for a prosecutorial arm separate from the presidency. In other nations and more than 40 states, the chief executive has no power to remove the head of the government’s prosecutorial authority. In a majority of those states, voters elect attorneys general who are independent of the governor. That would be one route for selecting an independent federal prosecutor to head the fourth branch. Another would retain appointment of the chief federal prosecutor by the president but ensure that official’s independence by preventing removal without good cause.

To be sure, there are risks. There’s no perfect system of government that individuals with insatiable thirst for dominance cannot corrupt or subvert. In the one I envision, an individual motivated less by justice than by greed for power could come to wield the immense authority of the federal prosecutor. What would prevent that person from going rogue? Courts? Congress? The people? The answer is all of the above. By creating a fourth branch less powerful than the presidency and subject to checks and balances — both from the judiciary, with its power of judicial review, and from the legislature, with its power of the purse — we can fortify our system from the kinds of abuse we have sadly witnessed in our times and are likely to see repeated and amplified because of the Supreme Court’s anti-democratic decision on July 1st.

Laurence H. Tribe is professor emeritus at Harvard, where he taught constitutional law for 50 years. His book, “American Constitutional Law,” has been cited more than any other legal text since 1950. Former Solicitor General Erwin Griswold wrote: “[N]o book, and no lawyer not on the [Supreme] Court, has ever had a greater influence on the development of American constitutional law,” and former U.S. Court of Appeals Judge J. Michael Luttig wrote in January 2023 that, “Laurence H. Tribe has been the nation’s preeminent constitutional scholar for the past half-century.” Follow Laurence Tribe @tribelaw.

The foregoing was originally published in The New York Times on July 1, 2024. It appears in Artsforum Magazine with the permission of its author.

Editor’s Notes:

(1) According to HuffPost, Laurence Tribe described the Supreme Court’s decision on presidential immunity as “a devastating blow to our system of government.” He said that “For all practical purposes, this is absolute immunity… It’s dangerous and it means we have to be even more careful never to elect a president who would think, let alone say, he wants to be a dictator on day one.” Tribe added America “had a revolution so we wouldn’t have a king and now the Supreme Court says that is what we’re giving you,” adding that the ruling is “a prescription for autocracy and eventually for authoritarianism and dictatorship.”

(2) In his foregoing analysis, the author contends that quite apart from the lamentable July 1^st decision by the U.S. Supreme Court to recognize presidential immunity from criminal prosecution in respect of official acts, a president already had the power to self-immunize by simply making sure that his attorney general signed-off in advance on the intended illegal course of action. So-called “extraordinary rendition,” torture when called something else (like waterboarding), and the denial of habeas corpus (and other fundamental human rights) in lawless detention sites like Guantanamo Bay come to mind as cynical attempts by our elected officials to use that sort of legal fig leaf to evade justice for their grossly illegal acts. Is Tribe right that that loophole already exists as a practice in our legal system which is accepted as legitimate? “That advice of counsel would, under settled principles of due process, give the president an ironclad defense every bit as good as judicially conferred immunity.” If so, it comes as news to us – and very unwelcome news at that.

************************************************

The Death of Good Sense, Part 3

The Loss of a Brave Man

Fully cognizant of the possibility of his own death at the hands of the ruthlessly lawless regime he so bravely opposed, Alexei Navalny had this message to those in Russia who share his yearning for freedom and democracy: “You’re not allowed to give up. If they decide to kill me, it means that we are incredibly strong. We need to utilize this power to not give up, to remember we are a huge power that is being oppressed by these bad dudes. We don’t realize how strong we actually are. The only thing necessary for the triumph of evil is for good people to do nothing. So don’t be inactive.”

Navalny died in custody at a remote Arctic prison camp on February 16, 2024 — the victim, whether directly or indirectly, of the murderous regime of Vladimir Putin. When an attempt to poison him in August 2020 very nearly killed him, Navalny courageously returned to Russia, knowing that arrest and imprisonment as a political prisoner awaited him. His example, like that of other dauntless critics of the regime, is one of indefatigable courage: “I am an optimist. I hope that this 20 years of Putin is not set in stone. We weren’t doomed to it; we weren’t meant to go in that direction.”

The Russian journalist Mikhail Fishman, now in exile, sees Navalny’s death as a pivotal point in his country’s history: “What occurred was the instance of dividing our lives into the before and after.” The struggle for justice and liberty in Russia will continue, however profound the loss of its champion. Evgenia Kara-Murza, the wife of imprisoned dissident Vladimir Kara-Murza, wrote that Nalvalny’s wife, Yulia Navalnaya was ‘walking through hell with her head held high’ when she spoke at a security conference in Munich, Germany on the same day that news broke that her husband was dead: “If this is true, I want Putin and all of his entourage, Putin’s friends and his government to know that they will be held accountable for what they have done to our country, to my family, and to my husband. And that day will come very soon…. I want to call on the entire world community… and people around the world [to] come together to unite and defeat this evil, defeat the horrific regime that is now in Russia.” (She received a standing ovation.) Mikhail Fishman says that Putin is waging two wars — one against Ukraine, the other against his own country. He adds that Putin has been ratcheting-up the pressure for 24 years, and that “he’s never going to stop until he’s stopped.” We say that one of most likely ways of stopping him, once and for all, is by defeating him in Ukraine.

Peace through Capitulation

The appropriate response to brute force and naked aggression is never capitulation. For capitulation delivers not peace but rather helpless subjugation to a cruel overlord and an incentive for him to extend his predation elsewhere. Yet, in an interview with a Swiss broadcaster in March 2024, Pope Francis counselled yielding to the very aggressor who has, without an iota of justification, devastated Ukraine and killed thousands of its people: “I think that the strongest one is the one who looks at the situation, thinks about the people, has the courage of the white flag, and negotiates.” He opined that Ukraine should not be ‘ashamed’ to talk to their attacker “before things get worse,” adding that “the word negotiate is a courageous word.” The Pope went on to say that, “When you see that you are defeated, that things are not going well, you have to have the courage to negotiate. Negotiations are never a surrender.” In these circumstances, however, negotiating is tantamount to yielding; and, Ukraine has not been defeated. With the exception of prisoner exchanges, there is nothing to discuss with Putin’s regime until Russian forces quit all of Ukraine’s territory.

The Vatican subsequently tempered the Pope’s defeatist remarks by claiming that he was calling for a ceasefire and negotiations, rather than Ukraine’s surrender; but we prefer the response by the head of the Ukrainian Greek Catholic Church: “I want to tell you one thing from the people of Ukraine. Ukraine is hurt, but unconquered… Ukraine is exhausted, but it is resilient and will prevail. Believe me, no one is thinking of surrendering — [not] even where there is fighting ongoing today.”

Ukrainian President Volodymyr Zelenskyy said it best of all in his address to a joint session of Canada’s Parliament in September 2023: “Life and justice must prevail everywhere in Ukraine and for all Ukrainians. This Russian aggression must end with our victory… so that Russia will never bring back genocide to Ukraine… Moscow must lose once and for all. And it will lose. Freedom will be the winner, justice will be the winner. You can know this for sure about us because you know for sure about yourself that you would never submit to evil.” He went on to say that Canada’s Governor General, Mary Simon, had taught him a word — ajuinnata — from her native tongue: “She said the meaning of this word is, ‘Don’t give up, don’t give up, stay strong against all odds.’ And so shall it be. Ajuinnata Canada. Ajuinnata Ukraine. Slava Ukraini.”

No Substitute for Victory

At the close of an international summit on February 26, 2024, French President Emmanuel Macron broached the hitherto verboten subject of Western troops intervening on the ground in Ukraine. He said that it was “one of the options” discussed by the twenty European leaders at the meeting: “There is no consensus today to send troops on the ground in an official, accepted and endorsed manner…. But no option should be discarded. We will spare no effort to ensure that Russia does not emerge victorious in this conflict.” Macron may have been grandstanding: various NATO allies (like the United States, Germany, and Canada) wasted no time in disavowing any prospect of introducing Western forces onto the battlefield — and, of course, Putin muttered threats of going nuclear. Even Macron’s own defense minister, Sebastien Lecornu, threw cold water on the idea, saying that Macron’s remarks had been taken out of context: “There were hypotheses clearly put on the table but not combat ground troops as may have been said here or there.” He added that Macron had reaffirmed that France would not be a “co-belligerent” in the conflict.

On February 24, 2024, we marked the second anniversary of Russia’s unlawful war of aggression against Ukraine. As we have argued from the very outset, the moment Russian forces lawlessly invaded all of Ukraine, the West should have moved its own armed forces into that country to demonstrate our absolute determination that Ukraine will not fall to invaders. We should belatedly do so now, holding them at the ready in the western part of Ukraine. If Ukrainian forces can expel the invaders themselves, with additional weapons provided by us, so much the better. But, if they falter, then our own military forces should intervene by advancing and fighting the invaders, but with the explicit caveat that our ground forces will not enter Russia. In the lamentable absence of Western support for that course of action, we ought, at the very least, to remain strategically ambiguous on the subject, in order to keep Putin guessing about our readiness to intervene directly to protect Ukraine should the need arise.

In the meantime, there are other decisive steps we should urgently undertake, however belatedly. Outspoken Putin foe and businessman Bill Browder (whose Russian lawyer, Sergei Magnitsky, was murdered by the Putin regime for investigating its pervasive corruption) has pointed out that Russia still earns $500 million in oil sales every day. “We haven’t touched that. We’re not banning Russia’s sale of oil to the rest of the world.” We ought to do so right now, without further delay, to deprive Putin of the wherewithal to keep his war machine running. Further, Browder points out that $300 billion of Russian money is currently frozen in the West. We should immediately confiscate all of it and transfer it to Ukraine. It is of critical importance that Putin’s aggression against Ukraine be decisively defeated. The axiom may sound trite, but in this case, it is very apt: ‘There is no substitute for victory.’

Protection Racket

Leave it to Donald Trump to utter the unspeakable and to undermine the security of each and every one of us in the process. The principle of collective defense is at the very heart of NATO’s founding treaty — a treaty which has binding force of law on all of its signatories. Article 5 guarantees that an attack on one member of the alliance is an attack on all. It obliges every member to come to the defense of any other member when it is attacked. To cast any doubt on the seriousness of that commitment is an act of reckless disregard for our mutual security and a insidious betrayal of national interest beyond all measure. Yet Trump regaled his cult followers with this tale (and not-so-veiled threat against his country’s close allies): “One of the presidents of a big country stood up and said, ‘Well sir, if we don’t pay [sufficient NATO dues], and we’re attacked by Russia, will you protect us?’ I said, ‘You didn’t pay? You’re delinquent?’ He said, ‘Yes, let’s say that happened.’ No, I would not protect you. In fact, I would encourage them [Russia] to do whatever the hell they want… You gotta pay. You gotta pay your bills.” Trump is nothing if not a shameless bull-slinger, flagrant liar, hyperbolist, and complete stranger to decency. But it is imprudent to put anything past him. The mere act of uttering that recklessly irresponsible threat undermines the cohesion of the alliance that has kept us safe since 1949 and is certain to comfort and embolden our adversaries.

Legal Chimeras

The walking anathema known as Donald Trump has spawned three legal travesties in recent months in the course of his lawyers’ attempt to evade or at least delay justice in the 91 criminal felony charges he is facing. First, there’s the absurd contention, hinted at by the man himself, that, if reelected as president, he could simply pardon himself on any and all federal charges (a president’s pardoning power does not extend to state charges). There can be little doubt that he’ll try, if it comes to that. But there is even less doubt that such an unprecedented misuse of the power to grant pardons would be unconstitutional. The Constitution is silent on that issue. Doubtless the framers never dreamed that such a question would (or could) ever arise. But, to say that a president can pardon his own crimes is to say that he is above the law. That would contradict the founding principles of the country — and it would mean that equality under the law, along with democracy, is dead in America.

Equally noxious is the claim of immunity from prosecution advanced by Trump and his lawyers. They’ve used that spurious contention to delay the pending prosecutions, in hopes that Trump will be reelected and then be able to order the charges to be stayed. On February 28, 2024, the U.S. Supreme Court agreed to consider “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” Again, first principles require that everyone is equal under the law and equally subject to its proscriptions. Even if there were to be special exceptions made for some classes of official acts, inciting insurrection, suborning contraventions of the Constitution, and unlawfully taking classified government documents into private life most assuredly do not qualify as legitimate official acts.

The Supreme Court also weighed into the attempt by Colorado (and a few other states) to remove Trump from the ballot in those states in the primary elections on the grounds of the 14th Amendment to the Constitution. Ratified in 1868, in the wake of the Civil War, it was intended to guarantee equal civil and legal rights to black citizens by granting citizenship to those formerly enslaved people. It also bars those who have engaged in insurrection, in contravention of their oath of office to support the Constitution, from again seeking office by election or appointment. The original target was officeholders who betrayed their oath by becoming Secessionists; however, the clause is not restricted to the post-Civil War context in which it was originally promulgated. In other words, it is equally enforceable today. And if anyone falls within the Amendment’s ambit, it surely must be Trump. But a legitimate question arises as to the mechanisms for invoking it in particular cases. The unanimous Supreme Court decision on March 4, 2024 held that individual states can not use the 14th Amendment to disqualify candidates for federal office. The court reasoned that a chaotic patchwork was apt to result from each state making its own determination. A majority of the court held that invocation of the Amendment’s disqualifying provision fell exclusively to Congress by way of legislation; the mostly liberal dissenters argued that unspecified processes other than just legislation might also suffice.

It makes good sense to establish a clear process or mechanism in which the arguments for and against the disqualification of a candidate can be made in a public forum. Here’s what Section 3 of the 14th Amendment actually says (emphasis added): “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Constitutional Overkill

The government of Canada invoked the “Emergencies Act” in February 2022 to deal with the so-called truckers’ convoy which had raucously (though non-violently) occupied downtown Ottawa for some weeks. As we said at the time, that drastic action blatantly contravened the Act’s own mandatory terms of use, not to mention the Charter of Rights and Freedoms. The Act became law in 1988, but it had never before been invoked. There was no legal justification for doing so in 2022. The prerequisites set out in the Act had not been met; the threshold required to invoke the act had not been satisfied. It can only be activated if there is “a national emergency [in the form of] an urgent and critical situation of a temporary nature that (a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or (b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada, and that cannot be effectively dealt with under any other law of Canada.” No such emergency existed.

On January 23, 2024, the Federal Court of Canada ruled that the invocation of those extraordinary powers was unjustified and contravened constitutionally protected rights, such as freedom of expression and (vis-à-vis the freezing of bank accounts) freedom from unreasonable search and seizure. The court held that “the record does not support a conclusion that the convoy had created a critical, urgent, temporary situation that was national in scope and could not effectively be dealt with under any other law of Canada.” After all, the court noted, in places other than Ottawa, the provinces had already dealt with protesters obstructing the international border by means of injunctions and ordinary powers of arrest.

Enough is Enough

On February 29, 2024, The New York Times reported that as of that date over 30,000 people have been killed in Gaza in the course of Israel’s post October 7th invasion. While that figure, compiled by the Gazan health ministry, does not distinguish between combatants and civilians, most outside observers believe that most of those killed are civilians and that the count is conservative, if anything. The Times notes that the death toll amounts to one person killed for every 73 Palestinians in Gaza (whose pre-war population was 2.2 million). As much as we strongly support Israel’s goals — of freeing the abductees, eradicating Hamas, and apprehending or killing the perpetrators of the mass atrocity in Israel on October 7, 2023 — we cannot ignore the deaths of civilians caught in the ongoing onslaught.

Israel’s friends, most particularly the United States, which has the leverage to make its wishes stick, need to compel it to end its 59 year occupation of the Palestinians — whether that control be direct, as in the case of the West Bank, or indirect, as in the case of Gaza. Israel should be compelled to withdraw its forces and its unlawful settlements from those territories, and they should be replaced by an international policing and peacekeeping force under a United Nations mandate. That force should be prepared to stay there for the long haul, until a stable, peaceful self-government can be established in an independent Palestine.

As the maxim has it, ‘two wrongs don’t make a right.’ And as Canada’s Ambassador to the U.N., Bob Rae, said recently: “It should be possible for us to denounce and deplore a truly horrendous attack on innocent [Israeli] civilians on October 7. It should also be possible for us to… object to the destruction — not of Hamas but [of] an entire [Palestinian] people [and] infrastructure.”

Art Imitates Life

Some cautionary words, persuasively delivered by British actor Charles Dance in the CBS drama series “Rabbit Hole,” sound too close for comfort right here in the real world, where freedom, truth, and human rights are under relentless assault by actual and would-be autocrats everywhere: “Chapter one: undermine people’s faith in the media so they begin to doubt the very nature of the truth. Chapter two: polarize factions in society. When people stop seeing the other side as human, then human rights cease to be an obstacle. Chapter three: marginalize the intelligentsia. If people stop listening to experts, then they become malleable. Chapter four: elect a candidate under the guise of restoring order. Someone smart, someone charismatic, but someone who can be controlled. There’s no chapter five. Now the country’s yours…. A country with anger and division is a job already half done.” Forewarned is forearmed, say we.

John Arkelian is a lawyer, journalist, and specialist in international relations who advised the federal cabinet on international and constitutional law and represented Canada as a diplomat in London and Prague.

The foregoing essay also appeared in the Spring 2024 issue of Grapevine Magazine.

************************************************

Still More Compelling Reasons to Conclude that Good Sense is Dead

(I) Divided We Fall

Long before he was the nation’s 16th president, Abraham Lincoln reflected on the only thing that might someday bring down the United States: “At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of free men, we must live through all time, or die by suicide.” Lincoln was an elected representative to the Illinois state legislature in 1838 when he spoke those prescient words, and he was just 28 years old. What would he make of the hyperbolic partisanship and entrenched extremism of today’s America? The once eminent party Lincoln helped to found has become subservient to a mendacious demagogue, its elected caucus peopled almost exclusively by liars, fools, and ideologues — and by those who are either too cynically opportunistic or too craven to oppose them.

A villain who befouled the office of president and incited an insurrection now faces 91 criminal felony charges — among them charges of trying to overturn the Constitution by thwarting the result of a free and fair national election. Yet, astoundingly, he seems to have a lock on his party’s nomination as their 2024 candidate for the presidency. On October 25, 2023, one of his loyal acolytes, Mike Johnson (Republican – Louisiana) became Speaker of the U.S. House of Representatives. Also known as “MAGA Mike,” Johnson is an election denier who tried to block the certification of Joe Biden’s election after the fall 2020 presidential election by wrongfully declaring the votes in certain key states to be invalid. In a sane world, in a world in which good sense were not dead, that should instantly disqualify him from the responsible position to which his colleagues have elected him. Indeed, one of them anonymously decried the extremist fringe within the ranks of Republican Congressman who deposed the previous speaker, Kevin McCarthy, as “selfish, disgusting heretics.” Yet that anonymous figure nevertheless saw fit to close ranks when it came time to vote for Johnson.

Like too many of his ilk, Johnson perversely comingles his evangelical Christian religious beliefs with an ultra-conservative ideology on the so-called “culture wars” battlefield; and he errs more grievously still by mistakenly anointing his party as the lone voice of social virtue. It’s willful, bloody-minded ignorance. And it’s coming, in Johnson’s case, from a man who is now second-in-line to the presidency. (If both the president and vice-president are unable to serve, they are succeeded by the speaker.)

Bob Kustra, a former state legislator in Idaho, observed that, “Trump and his mindless supporters in Congress have removed the guardrails of our political culture as it turns [ever] more vulgar and abusive.” The self-debasement of one the country’s two national parties, its unabashed readiness to appeal to the lowest common denominator of its base (which feels very much like mob rule), the nation’s reckless flirtation with extremism, autocracy, irrationality and rabid partisanship, and the ensuing dysfunctionality in the nation’s political affairs poses a clear and present danger to America and to the rest of us. National death by suicide is no longer unimaginable — and that’s a doleful prospect indeed.

(II) Contempt of Court

Contempt of court consists of any conduct that tends to bring the authority and administration of justice into disrepute or tends to prejudice a fair trial in a case that is before the court. Contempt of court is an offense punishable by law. Donald Trump is a flagrant repeat offender; yet, for reasons unknown, he keeps on getting away with it. Hearken back to 2018, when he publicly weighed in on behalf of his minion Paul Manafort, while Manafort was on trial for bank and tax fraud. While the jury was still deliberating, Trump publicly opined that Manafort was ‘a good guy’ and that what was happening to him was ‘terrible.’ Those declarations posed a very real danger of influencing the jury, subverting its impartiality, and prejudicing a fair trial. (Manafort’s lawyer likewise broke the law by repeating Trump’s interfering remarks on camera.) Trump should have been held in contempt, but he was not. Emboldened by the inexplicable timidity of the presiding judge in that case, Trump has grotesquely upped the ante in more recent cases in which he himself is on trial. For instance, in July 2023, he denounced the Justice Department prosecutor handling his case as “evil,” “deranged,” and “sick.” It was textbook contempt, but no punishment was imposed.

Things have only gotten worse, much worse, since then. In October 2023, the judge in Trump’s civil fraud trial fined Trump $5,000 and later an additional $10,000 (quanta which do not even rise to slaps on the proverbial wrist) for ignoring the order that banned him from denigrating the judge’s staff in public. In Trump’s separate election interference case, the presiding U.S. District Court judge reinstated a gag order prohibiting the ex-president from disparaging prosecutors, witnesses, and court staff. And to say “disparage” is putting it mildly. The former president was saying outrageous, inflammatory, offensive, threatening things. It boggles the mind that a judge should have to warn any defendant not to deprecate and threaten those involved in the administration of justice. The law provides for fines and imprisonment to punish contempt of court. The fines should be severe and the imprisonment swift. Trump is deliberately, repeatedly, and unlawfully undermining public confidence in our system of justice. Worse still, he is putting those he verbally attacks in danger. As a former federal prosecutor noted in October 2023, “Judges… need to really stiffen their spines because they have to worry about the violence that can come from the ‘call and response’ that the former president is wielding,”

(III) Trivializing the Solemn

Starting sometime in 2023, prospective new citizens of Canada will be able take their oath alone at home, by simply clicking a box on a website — without anyone presiding over that empty gesture. The federal government says this no-frills, do-it-yourself alternative to traditional mass swearing-in ceremonies (the ones held before live, in-person citizenship judges) will speed things up, help clear a 358,000 application backlog , save the government money, and simply be more convenient. The first step, in place since spring of 2020, was the introduction of virtual ceremonies online. Now, someone’s errant idea of progress is to dispense with the ceremony altogether, reducing, as a July 2023 editorial in The Globe and Mail puts it, “the final step to becoming a Canadian… to something akin to agreeing to the terms of service on a smartphone app.” We hold no particular brief for empty ritual or hollow honorifics. But, some ceremonies do matter. Sometimes, only formal ritual can do justice to an important milestone, rite of passage, or life-altering event. Witness the importance of weddings, funerals, graduations, anniversaries, and key birthdays to all and sundry. What could be more important than becoming a Canadian? True, there’s reason to suspect that some applicants adopt Canada as a spare native land for reasons other than true patriot love of the place we call home. If you’re resident in a volatile or endangered place (like Hong Kong, or, in the past, Lebanon), it’s handy to have a safe bolt-hole at the ready should the need arise. Frankly, such motivations, along with purely material ones, aren’t exactly the ideal ones we’d seek in newcomers. Rather, we want newcomers who love what Canada stands for — its freedom, its rule of law, its diversity, its tolerance, its general decency, its gift of opportunity for one and all, and its natural beauty. Being a Canadian, or becoming one, is an honor and a privilege, one that comes with rights and responsibilities. It deserves the dignity, the solemnity, and the pomp and ceremony of a live accession event which is held in public and witnessed by others.

(IV) Diplomatic Hijinks

In September 2023, Prime Minister Justin Trudeau took the unusual step of publicly accusing India of involvement in the June 18th murder of a Sikh activist in British Columbia. Canada expelled a senior Indian diplomat, who represented India’s foreign intelligence agency in Canada. Predictably, India response to the accusation was outrage, while its response to the token expulsion was a tit-for-tat expulsion of one Canadian diplomat. It also suspended visa applications by Canadians wanting to visit India. Less predictably, in October 2023, India took the well-nigh unprecedented step of announcing that it was about to unilaterally revoke the diplomatic immunity of 41 Canadian diplomats. To protect them, Canada had no choice but to quickly withdraw those diplomats and their families.

Diplomatic immunity is guaranteed by binding international conventions to protect those tasked with representing their country abroad and to make diplomatic relations between nations possible. Unilaterally revoking diplomatic immunity is simply not done. And doing it on this scale quadruples the transgression, reducing, as it did, Canada’s diplomatic staff in India by two-thirds. India tried to disguise its unlawful act by claiming a disparity in the respective number of diplomats each country had accredited in the other’s homeland. But that flimsy excuse seems not to be borne out by the arithmetic. And, even if it were true, it does not, and can not, justify the unilateral revocation of immunity.

India was undoubtedly counting on the proposition that it is more important to Canada than Canada is to it. According to Canadian government figures, India accounts for 45% of Canada’s international students (which makes them a big revenue generator for Canadian colleges and universities), 27% of our new permanent residents, and 22% of our temporary foreign workers. Those figures may make India the single biggest contributors of manpower in each of those categories. Assuming that our government has compelling evidence that India was involved in the murder of a Canadian whose politics (in support of separation of the Punjab region from India) they didn’t like, Canada should stand firm. Generally, in geopolitical affairs, it’s a good idea to avoid escalating conflicts. But, sometimes, escalation is justified — and necessary. This may be one of those times. In response to the provocative and unlawful act by India in threatening the unilateral withdrawal of diplomatic immunity (which is a very different thing from merely expelling diplomats as persona non grata), Canada should announce that it is temporarily closing down its diplomatic and consular activities in India, and we should require India to do the same here. No revocation of diplomatic immunities would be threatened; but, Canada should cite India’s threatened use of that unlawful measure as grounds for suspending each country’s respective diplomatic and consular presence (and activities) in the other. It’s a drastic move, in diplomatic terms, and it’s likely to be far more inconvenient to Canada (particularly to bi-nationals who are resident here) than it is to India; but it is a warranted response in dealing with a counterpart for whom good sense is, lately, notable by its absence.

(V) Taking Someone’s Name in Vain

When Muslim extremists — among them, Hamas, ISIS, al-Qaeda, Hezbollah, Iran’s theocratic tyranny, and Afghanistan’s Taliban — commit murder and atrocities in the name of their vile ideology, they are fond of exclaiming “Allahu Akbar!” (“God is Greater”). My, how it rankles, that obscene (not to mention blasphemous) attempt to clothe evil acts in imagined divine approval. Imagine gleefully shouting that invocation to the Deity when murdering innocent Israeli civilians on October 7, 2023 or crashing a passenger jet full of terrified innocent people into the World Trade Center on September 11, 2001. Yet, that’s precisely what happened. What kind of twisted mind (and wretched belief-system) presumptuously concludes that God would look with approval upon such grotesque inhumanity? ‘Good sense’ is well and truly dead in those who are propelled by such destructive self-delusion.

John Arkelian is a lawyer, journalist, and specialist in international relations who represented Canada as a diplomat in London and Prague.

The foregoing essay also appeared in the Winter 2023/24 issue of Grapevine Magazine.

************************************************

Stranger Than Fiction:
Seven Compelling Reasons to Conclude that Good Sense is Dead

Arms and the Man in America

Governments have a duty to protect competing rights by acting as a referee when said rights collide. Those in America who brazenly assert an unregulated right to bear arms run headlong into the right of everyone else to the “life, liberty, and the pursuit of happiness” guaranteed in the nation’s founding document, the Declaration of Independence. The Second Amendment to the Constitution of the United States provides that, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” But, consider the context. Those words were composed in the late 18th century, when a mostly untamed continent posed many potential dangers for the newly formed nation hugging its eastern seaboard. Predatory wildlife, hostile indigenous people (doubtless resentful at being displaced from their lands), and possible conflict with European colonial powers posed dangers to the new nation – and to its people. The solution was the ability to defend oneself and one’s community by having a musket close-to-hand. The two clauses of the Second Amendment were clearly meant to be read together: Because a ‘well-regulated’ citizens’ militia was essential to the security of Americans, their right to “arms” (as that term was understood at the time) was not to be infringed. There is a clear and necessary causal link between those two propositions, as follows: ‘We need a militia, therefore the people who will form that militia, when called upon to do so, must have firearms at the ready.’ To put it another way, people are assured of access to firearms specifically because they may at a moment’s notice be called upon to serve in a militia. The U.S. Supreme Court squandered its chance to endorse that causal connection and to make it explicit: Your right to bear arms may not be infringed – to the extent that it coincides with your service in a citizens’ militia. And, “a well-regulated militia” obviously does not include a bunch of self-appointed crackpots in the woods, fueled by some conspiratorial notion that the government is out to get them.

Flag Flap

A May 30, 2023 opinion piece on the TVOntario website unhelpfully added to the overblown controversy over a Toronto area Catholic school board’s decision not to fly a ‘pride flag’ over its headquarters. The writer, like others overly incensed by that decision, falsely equates “safety and inclusion” with the purported right to bear flags. He asserts that, “They can still adopt discriminatory policies and decisions — such as refusing to fly the pride flag.” But, it is a leap of illogic to contend that declining to fly that flag is tantamount to discrimination. He correctly notes that, “Publicly funded education is by definition a public thing, and it ought to be maximally inclusive.” What he misses is this: no one is barring students because of their sexual orientation; but, it does not follow that they have an intrinsic right to fly that flag at a public facility. He banally observes that, “At a basic level, each student in the education system has a right to be who they are…” That’s certainly true, but it’s not at issue. ‘Being who you are’ doesn’t bring with it (as a perk) any flag-flying rights. Likewise, “Every child in a publicly funded school should be supported, should feel affirmed, and should feel safe.” Of course everyone should feel (and be) safe. But that is irrelevant to the flag issue. Leaving good sense even further behind, the writer posits that, “If Catholic schools cannot meet the imperatives of safety and inclusion, they ought not to be publicly funded.” It’s a hyperbolic contention. Safety is not in question. And inclusion doesn’t confer this particular ‘right.’ The school board in question should not be compelled — by government, or by the outcries of the flagless, or by political correctness run amok — to fly what amounts to a special interest group’s banner over a public facility.

Hail to the Chief of Disorder

It confounds human understanding that Donald Trump still commands a loyal following among his “base.” If it were not abundantly clear from the get-go that Trump is the very exemplar of indecency, the travesty of his four years in office ought to have brought home the lesson that he is, was, and always will be unfit for elected office. He besmirched that office, betrayed the trust of Americans, and imperiled the very country he was duty-bound to protect and defend. If the deplorable spectacle of him in office weren’t bad enough, he bears chief responsibility for the attempted insurrection on January 6, 2021. More recently, he has been indicted for offenses in federal and New York state courts, with additional very serious criminal charges likely to follow. Yet, notwithstanding his noxious character and deportment on the job, he got 74,222,960 votes in the 2020 presidential election (i.e. 46.8% of the total votes cast compared to Joe Biden’s 51.3%). It’s hard to say what’s worse — Trump himself, or the inexplicable fact that almost half of American voters wanted to entrust the man with another four years in high office. Worse still, as of July 2023, he is the leading contender to be the Republican Party’s candidate for that office in 2024.

Judicial Follies, Part One

In May 2023, American news organizations like PBS, Politico, and ProPublica reported that some justices of the U.S. Supreme Court were on the receiving end of largesse from wealthy benefactors. They reported that a billionaire GOP donor paid the private school tuition (to the tune of $150,000) for the grandnephew of Justice Clarence Thomas, over whom Thomas and his wife had custody in the place of parents. The same benefactor also reportedly purchased Thomas’ mother’s house and took Thomas on multiple expensive holidays. For his part, fellow conservative Justice Neil Gorsuch reportedly sold a 40-acre parcel of property to the CEO of a prominent law firm which has regular business before the Supreme Court. Democratic Senators convened a Judiciary Committee hearing to push for ethics reforms, a move some Republicans dismissed as politically motivated. Senator Sheldon Whitehouse (D – Rhode Island) argued that, “Until there is an honest ethics process at the Supreme Court, these messes will continue. The court has conclusively proven that it cannot police itself.” Sad, but true. Astonishingly, it is not illegal for someone to give gifts to Supreme Court justices or for those judges to receive them, provided that they disclose the gifts. It’s appalling enough that the law permits such “gifts,” worse still that the highest judges in the land are willfully blind to the disrepute such potential influence peddling is apt to bring upon the nation’s highest court.

Judicial Follies, Part Two

Poor judgement in high judicial places knows no borders. On July 15, 2023, The Toronto Star commented on an unfortunate change of venue by Beverley McLachlin, the former Chief Justice of the Supreme Court of Canada. When she hung up her judge’s robes in Ottawa in 2017, Ms. McLachlin accepted a appointment to the bench of Hong Kong’s Court of Final Appeal. But, thanks to its autocratic masters in Beijing, Hong Kong is a cautionary tale of democracy lost, human rights crushed, law perverted to serve the diktat of tyrants, and a sworn, supposedly binding, commitment to autonomy broken. And, lest we forget, China is the same lawless regime that shamelessly held two Canadians hostage for nearly three years (2018-21) to pressure Canada into submission on a case involving the proposed extradition of a high-profile Chinese business leader. How could anyone from the democratic West want to be associated with a state that does those malign things? The repugnant regime in Beijing, together with all of the organs of the Chinese Communist state, ought to be anathema to Canadians — for the sake of “the two Michaels” alone, not to mention the unlawful internment of up to one million ethnic Uighurs in China’s northwest. As the Star’s columnist suggests, McLachlin’s presence on Hong Kong’s highest court is nothing more than “a fig leaf for autocracy.”

Cultural Pollution

We are paying belated attention to the environment these days, what with global warming, resource depletion, threats of extinction to many species, and the ongoing pollution of our land, air, and sea. If only we were as concerned about our social and cultural environment. There are a myriad of dangers on that front: (1) In recent months, we’ve been swamped by a tsunami of television ads for online sports betting. Such gambling is legal. But, not only does it pose a very real danger of addiction, its ubiquitous promotion cheapens our public marketplace of ideas. Why not prohibit its advertising, just as we do for tobacco consumption? (2) Whose bright idea was it to legalize the sale and recreational use of certain narcotic drugs? Stores selling marijuana have sprouted like weeds in the commercial strips of urban centers large and small. They are an ugly reminder of a socially regressive practice. In what way does the use of mind-altering drugs benefit society — or the individual user? A wiser public policy would have been to continue to proscribe the sale or use of so-called ‘recreational drugs’ and to instead modify the penalties imposed for breaking those rules. (3) Too many of us rely too much on social media for the raw material upon which we shape our opinions about the world around us. Yet, that informational milieu is awash with deliberate falsehoods and careless nonsense. Noxious governments (in places like Russia and China) are as eager to manipulate our views as greedy corporate behemoths (starting with the social media giants themselves) are to cash in on algorithms which generate more eye-time on screens by emphasizing extreme or inflammatory messages. In the neglected name of competition, we need to break-up large social media megacompanies; in the name of a well-informed public, and the continued functioning of our democracies, we need strong regulation of the public airwaves, our shared information highways, in the public interest.

Artificial Unintelligence

If you’re looking for evidence that good sense is dead, look no further than the reckless efforts to create “artificial intelligence,” which would give computers and robots the ability to learn on their own and to do so at speeds that eclipse human abilities. In recent months, more and more technology leaders, including A.I.’s early creators, have been warning that, unchecked, this rapidly advancing technology poses a survival-level risk for humanity: “Mitigating the risk of extinction from A.I. should be a global priority alongside other societal scale risks such as pandemics and nuclear war.” And, as one observer has pointed out, A.I. poses “not just the risk of extinction,” it also poses very real lower-grade dangers through “systemic bias, misinformation, malicious use, cyberattacks, and weaponization.” Alas, our policymakers don’t have a reassuring track-record of getting ahead of big issues. The late Stephen Hawking warned that mankind risks being perceived like ants by the self-same super-technologies we are so hell-bent on unleashing: “You’re probably not an evil ant-hater who steps on ants out of malice, but if you’re in charge of a hydroelectric green-energy project and there’s an anthill in the region to be flooded, too bad for the ants. Let’s not place humanity in the position of those ants.” If, against all evidence, good sense is alive and well, it’s time to put the brakes on technologies like A.I., facial recognition, and autonomous weapons systems, lest our own technological hubris becomes our ultimate undoing.

John Arkelian is a lawyer, journalist, and specialist in international relations who represented Canada as a diplomat in London and Prague.

The foregoing essay also appeared in the Fall 2023 issue of Grapevine Magazine.

************************************************

No Hill to Die On: The Dos and Don’ts of Public Protests

No wonder many of are losing confidence in the judgement of our elected leaders, the efficacy of our public institutions, and the inclination of those with opposing points of view to engage in civil discourse. For their part, protesters took over

downtown of the national capital for a protracted raucous stay, disrupting the lives of Ottawa residents in the process. And, on the other side, instead of enforcing existing laws, the federal government improperly invoked emergency powers in blatant violation of the terms restricting the use of those powers. For all and sundry, we offer this ‘dos and don’ts’ guide to public protests.

Admonitions to Protesters

Be peaceful. Except in extreme circumstances, which are obviously not extant in a free and democratic country like Canada, violent protest is illegitimate. Be respectful of others. Local residents should not be impeded in any way from going about their daily lives; journalists should not be harrassed; and no one needs to be confronted with shouted or written obscenities. Take your hand off the horn. The blaring of truck horns is unacceptable in residential areas. Elsewhere, like the immediate environs of Parliament, it could be tolerated in small doses, say an hour a day. So, honk to your heart’s content (away from residential areas) between noon and 1:00 pm, but shut up the other 23 hours of the day and night. Be more discriminating about the company you keep. The trucker protests were ostensibly about COVID vaccine mandates (and, in particular, the recently imposed requirement that truckers crossing the international border be vaccinated); but, the protests also apparently attracted some people with unpalatable fringe views and objectives. And, for those few with the horrendously poor taste to carry a Nazi flag, you forfeit any right to be taken seriously and deserve instead only a swift kick in the rear end. Be sensible in your objectives. Seeking to remove a sitting government is not within the proper, let alone constitutional, purview of a protest. If you want to see a change in government, that’s what we have elections for. If you have a truck, don’t idle your engines. The diesel fumes are as bad for the health of everyone downwind as they are destructive of our shared environment. So, either dress for the weather and endure a cold truck cabin, or sleep in a hotel at night.

Don’t block international borders, unless it be for a few minutes. Our economy, our mutual well-being, and our credibility as a trading partner (especially in the eyes of those who are so parochially eager these days for any excuse to “Buy American”) all depend on an unobstructed border. If you plan a protracted stay in an urban space, do not obstruct pedestrian and vehicular traffic on any streets, unless it be for a few minutes. If you come in trucks, feel free to park bumper-to-bumper along the curbs — but only on non-residential streets. But leave the driving lanes unobstructed. We can tolerate indefinite breach of parking restrictions in that limited way without resorting to towing you away, if you can tolerate parking tickets. Behave sensibly (and lawfully) when it comes to stockpiling flammables, building open fires, and dealing with human excreta. Police yourselves by expelling those who deviate from the prescribed dos and don’ts. Avoid inflammatory hyperbole: Shouting to the heavens that you’re prepared to die for your cause — when your cause is merely a universally-held frustration with the disruption to the lives of each and every one of us caused by the global pandemic — shows a distressing lack of proportion and self-restraint. Pick a more worthy cause (and hill to die on) than mere vaccine mandates. Consider what is reasonable in assessing the duration of your stay. Your impact on the ‘host’ community might be benignly negligible if you behave responsibly and with consideration for others. But, a prolonged stay may implictly signify an insistence on getting your own way — in defiance of the will of the majority as expressed through their elected representatives. Such an insistence, however subliminal, risks being presumptuous and undemocratic.

Admonitions to Government

Get some better legal advisers; or, better yet, stop breaking the law to accommodate your policy objectives (just as you tried to do in the SNC Lavalin affair in 2018-19). Your invocation of the “Emergencies Act” blatantly contravenes that Act’s own mandatory terms of use. The Act became law in 1988, but it has never before been invoked. There was no legal justification for invoking it now. The Canadian Civil Liberties Association (CCLA), which is filing suit against the government for its flagrant misuse of the Act, is right: The perequisities set out in the Act have not been met; the threshold required to invoke the act has not been satisfied. It can only be activated if there is “a national emergency [in the form of] an urgent and critical situation of a temporary nature that (a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or (b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada, and that cannot be effectively dealt with under any other law of Canada.” No such emergency exists. An economic crisis was precipitated by the protesters’ blockades at border crossings in Ontario and Alberta. But those blockades were readily dismantled without any emergency powers. Governments and law enforcement agencies had all the non-emergency powers they needed to maintain order in Ottawa (and disperse the protesters, if necessary) had they chosen to enforce existing laws. An “emergency,” as contemplated by the Act, refers to something extraordinarily drastic, like a cataclysmic natural disaster (e.g. a sudden major eruption of the supervolcano currently lying dormant under Wyoming, or an asteroid collision); an armed insurrection or attempted secession; or an invasion (e.g. if a hostile power like Russia or China seized territory in our far north, rejecting Canadian sovereignty over its Arctic archipelago — a not so far-fetched prospect given the ongoing opening of Arctic waters by global warming). As the CCLA says, “Governments regularly deal with difficult situations — and do so using powers granted to them by democratically elected representatives. Emergency legislation should not be normalized. It threatens our democracy and our civil liberties.”

Nor are plans to freeze or seize the bank accounts of protesters legally justified. That’s something we do when there is reasonable cause to believe that someone is: (i) involved in organized crime, or (ii) funneling money to terrorists, or (iii) engaged in crimes against humanity (Vladimir Putin springs to mind with his threatened aggression against Ukraine).

Government have failed us in other ways, as well. Liberals and Conservatives alike chose to politicize the protests in Ottawa and elsewhere. The government opted to villify the protesters, dismiss their vaccine mandate views out of hand, and seemingly exaggerate links to extremist elements. They sought partisan advantage, creating wedge issues that set “us” against “them,” thus polarizing opposing views and neglecting their duty to seek the things that unite all of us. Excepting only those who advocate hate or extremism, there is no harm in talking with those whose views differ from the mainstream. Indeed, failure to do so only accentuates the sense of disenfranchisement and marginalization which has been corrosively simmering away in many democratic countries in recent years.

Admonitions to the Press

Choose your words with greater care. Terms like “far right,” “fringe,” and “extremist” mean something. But, are those signifiers being correctly applied to the protesters writ large? It does not seem so. You quote non-protesters who say they feel vulnerable, harrassed, and intimidated. But, you fail to cite the particulars. Were local residents actually harrassed, or were they simply put-off by the boisterous uninvited guests camping out in the heart of their city? Terms like “occupation” and “siege” are likewise used freely. But, is it the best way to describe the situation? The protracted protest in Ottawa over the course of three weeks has been largely peaceful, however irritating and disruptive it may have been. And it is a far cry from the lamentable events of January 6, 2021 at the Capitol in Washington. That day was marked by violence and by forced entry into a legislature — both of which were markedly absent in Ottawa. The example south of the border can fairly be regarded as a riot and/or an insurrection; but, neither of those things is true of the events in Canada. The citizen in Ottawa who became the lead plaintiff in a class action lawsuit against the protest organizers showed admirable initiative; but, her characterization of the protesters as “domestic terrorists” on CBC Radio went unchallenged by the program host. Was it hyperbolic? And why didn’t our media give some voice to the protestors. Most of us may disagree with their methods and their specific (mandates) bones of contention; but, there is room for reasonable people to disagree civilly on how best to respond to the dangers posed by the coronavirus pandemic.

Admonitions to All & Sundry

Our abiding take-away from the protests in Canada in February 2022 ought to be concern over the corrosive effects of increasingly angry divisions in societies here, there, and everywhere in the West. The nominal cause in the Canadian instance may have been a vocal minority opposed to vaccine mandates; but, the underlying discontent seems more diffuse and pervasive than that single issue. We need to redouble our efforts to contradict the nonsense so many people mistake for reality on social media. And we need a tangible plan to counter polarization, politicization, and the insidious creep of distrust of governments, of mainstream media, and of assorted experts. (The pandemic has not been helpful in that regard, so obviously catching our elected leaders and our health care sector unprepared. In response, our governments have juggled purely medical objectives with policy ones, like minimizing harm to the economy, sending the rest of us mixed messages in the process.) In the societal macrocosm, it is terribly unhealthy, not to mention dangerous, to let the sense of alienation and marginalization among the disgruntled few fester. We can help to address that problem by instituting real democratic reforms (free votes in legislatures, recall provisions; term limits; experimenting with proportional representation; strict enforcement of ethical conduct codes; and more use of referenda). In the meantime, we can try throwing out the incumbants (regardless of their party affiliation) in every election — before they are in power long enough to become complacent and more interested in their own advantage than in the public good.

John Arkelian conducted criminal prosecutions as a Federal Crown Attorney.

Visit Michael de Adder at: https://www.deadder.net/ And see our portrait of the artist at: https://artsforum.ca/art-2

************************************************

The Lethal Cost of Doing Business

Throughout COVID-19, there’s been an uncomfortable tension in how political leaders, employers, and public opinion have reacted to the challenges of working during a pandemic. On one hand, many acknowledged the courage and sacrifice of those who kept providing essential services despite the risks. We applauded health care workers and first responders. And we thanked those in more humble, undervalued roles — like the grocery clerks, cleaners, and delivery drivers whose continued labour helped us weather the crisis. On the other hand, a deeper reflex remained in place among employers and governments. They could quickly revert to a more dollars-and-sense perspective, in which workers are just another productive input — something whose continued supply must be assured and whose cost must be minimized.

Grocery chains offered $2 an hour bonuses during the scary initial weeks of the pandemic but snatched them away as soon as operationally (and politically) feasible. Pandemic pay was replaced by million-dollar bonuses for CEOs amidst a COVID-fueled grocery boom. Premiers praised health care workers for their bravery and then demanded cuts in their pay. And from the outset, the willingness of negligent employers to sacrifice the health and even lives of workers to maintain production — at slaughterhouses, corporate farms, and Amazon warehouses — was a frightening reminder of the amorality of the profit motive.

Now, with omicron out of control, it seems employers and public health officers have thrown in the towel in the fight to limit contagion, protect workers and customers, and support isolation when needed. The cannon shot signalling this new, grim approach was the relaxation of isolation requirements for workers with COVID. This started in late December 2021, when the U.S. Centers for Disease Control (CDC) cut the isolation period to just five days (for those infected and close contacts). It was vigorously lobbied for by U.S. employers, who wanted sick workers back on the job faster. Scientific evidence on this issue is mixed at best. Recent research suggests the average contagious period for vaccinated COVID patients is five-and-a-half days — and since that’s the average, it’s longer for many patients. But it wasn’t science that ruled the day; it was the complaints of employers that isolation was depriving them of needed workers.

Other jurisdictions rejected the U.S. precedent. And America’s sorry COVID record (it registered more than a million new cases on January 3, 2022 alone) hardly constitutes a role model. But, influenced by similar complaints from Canadian employers, our officials fell in line. The five-day rule has now been mimicked in several provinces (including Ontario, Alberta, and B.C.). In Quebec, the government even requires some health workers to stay on the job with COVID. Alberta gives individual employers discretion in deciding whether staff shortages necessitate isolation periods of less than five days. Meanwhile, B.C.’s health officer bluntly stated that she is no longer interested in ‘telling employers what to do:’ instead, each business should make its own plan to avoid shutting down because of staff shortages.

Leaving life-and-death decisions to the discretion of individual profit-seeking employers wilfully ignores the power imbalances that shape the day-to-day reality of workplaces. Without clear, strong rules, workers don’t have a chance of forcing their employers to behave responsibly. Business leaders celebrate this turn to light-touch COVID regulation. Workers can be forgiven for feeling differently. Now, in addition to fears of catching COVID, accessing testing, and protecting loved ones, workers face an added danger: their employer can demand co-workers return to work even if contagious. Most perversely of all, almost no Canadian jurisdictions (outside of federally regulated industries and B.C.) guarantee enough sick pay to cover even this shorter isolation period.

Perhaps more than any recent history, COVID-19 has highlighted the callous logic of capitalism. Bosses need workers to keep working, no matter what: after all, that’s what produces the value-added. And if workers must die in the process, so be it. We must keep the wheels of commerce turning — and keep profits (which perversely rose during the pandemic) flowing. No wonder workers are angry. No wonder there are more strikes, more union drives, and more individual acts of resistance (like resignations). When you suddenly realize that your boss will tolerate your death as a cost of doing business, your attitude toward them (and your job) changes considerably.

Jim Stanford is an economist and director of the Centre for Future Work in Vancouver. He is also a freelance contributing columnist for The Toronto Star. Founded in 2016, the Centre for Future Work is a progressive research institute, with operations in Canada and Australia. Visit them at: https://centreforfuturework.ca/

Follow Jim Stanford on Twitter: @jimbostanford

The foregoing essay was originally published in The Toronto Star on Saturday, January 8, 2022. It appears in Artsforum Magazine with the permission of its author.

************************************************

“The Noxious Idea of Separation”

“One nation, indivisible:” Those words, well-known to every American child from the Pledge of Allegiance recited at the start of every school-day, have currency on the northern side of the 49th Parallel, too, even though they too often go unspoken here.

Recurring talk over the years about separatism in Quebec perversely takes it for granted that sovereign independence is theirs for the taking. It assumes that circumstances can exist under which a provincial government can take a province out of Canada. In short, it recognizes a “right” to secede. But, we are making a crucial and wholly unwarranted concession to those who would break up the country when we tacitly accept that any province has a right to secession. For no such right exists.

That hasn’t stopped that noxious witches’ brew of an idea from bubbling away for years in the province of Quebec – and even, occasionally, finding a few notional proponents in Alberta. Those obsessed with Quebec’s secession have (thus far) held two provincial referenda advocating that province’s separation from Canada: the first, on May 20, 1980, was defeated by 59.56% to 40.44%; the second, on October 30, 1995, ended with a closer margin for Canada’s survival (with 50.58% to 49.42%) and an impressively large voter turnout of 93.52%. In the aftermath of that close-call for Canada, several things happened. The separatist Parti Québécois premier of Quebec, Jacques Parizeau, covered himself in shame (and thereby ended his own political career) by blaming the 1995 result on ‘money and the ethnic vote.’ For its part, the Government of Canada referred several questions to the Supreme Court of Canada, namely: (i) can Quebec unilaterally secede under the Constitution of Canada, (ii) is there a right to self-determination under international law which would confer the right of unilateral secession, and (iii) in the event of a conflict between constitutional and international law on that issue, which would take precedence?

On August 20, 1998, the Supreme Court concluded that Quebec cannot secede unilaterally under either Canadian or international law. However, it unhelpfully opined, (in a contention that should be rejected by Canadians) that the Government of Canada would have to enter into negotiations with Quebec if the people of that province expressed a clear will to secede. The court did not define what would constitute a clear majority; but, it said that the Parliament of Canada had the power to determine whether or not a referendum question was sufficiently unambiguous to trigger separation negotiations. Canada’s Constitution would remain in effect until terms of secession were agreed to by all parties through an amendment to the Constitution (which requires the consent of the federal Parliament and at least seven provinces comprising at least half of Canada’s population). The court added that any such terms would have to respect principles of democracy, minority rights, and individual rights as outlined in the Canadian Constitution.

Thereafter, on June 29, 2000, the Government of Canada enacted the “Clarity Act” which stipulated: (i) that the federal Parliament has the power to decide whether a proposed referendum question is considered clear before a public vote takes place; (ii) that any question not solely referring to secession was to be considered unclear (the 1980 proposal for ‘sovereignty-association,’ for example, would not pass that test); (iii) that the federal Parliament has the power to decide whether or not a clear majority had expressed itself following any referendum vote (implying that a ‘supermajority’ of unspecified size would be required for a secession vote’s success); (iv) that all provinces and the First Nations were to be part of any separation negotiations; (v) that the federal Parliament could override a referendum result if it violated any provisions of the Clarity Act; and (vi) that the secession of a province of Canada would require an amendment to the Constitution of Canada.

Quebec responded to the Clarity Act with its own legislation, with the grandiloquent title of “An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State,” which vacuously asserted the province’s purported “right to self-determination” and insisted, even less persuasively, on its self-bestowed “right to territorial integrity.” (In fact, a province intent on seceding from Canada has neither such right.) Although it claimed to recognize the rights of Quebec’s English-speaking minority and of the province’s First Nations, it presumptuously asserted that, “No other parliament or government may reduce the powers, authority, sovereignty or legitimacy of [Quebec’s] National Assembly, or impose constraint on the democratic will of the Quebec people to determine its own future.”

Those legal machinations (on both sides) overlook the fact that territory of the nation called Canada is the inheritance and the responsibility of all Canadians. It belongs to all of us – and not just to those of us now living but also to our future generations. The Gaspé is thus no less a part of a Torontonian’s Canada, than the Queen Charlottes are a part of a Montrealer’s. Secession is not a simple administrative act taken by a player who opts out of the game. It is beyond the purview of legislation or premiers’ conferences. Separation ultimately means the destruction of Canada as we know it. It means our grievous political, economic, territorial, and cultural diminution as a force to be reckoned with on the world stage. It also puts at grave risk the survival of the rest of Canada as an independent nation.

There is no constitutional mechanism for breaking up the country. It is, by definition, an extra-constitutional undertaking – wholly outside the ambit of our society’s fundamental framework of laws and institutions. There simply are no exit ramps from this particular highway. Those who seek to break up the country threaten to commandeer the vehicle in which we are all traveling and recklessly force us all to abandon the highway for rough, unmapped – and possible unnavigable – terrain. The fact is that there is no inherent jurisdiction in any provincial government – ever, under any circumstances – to attempt to take a province out of Canada. All individual Canadians have a constitutional right to leave Canada. They can, in effect, vacate the premises; but they cannot dismantle our common home in the process. There is no right vesting in any province to separate from the whole. To contend otherwise is the height of presumption.

It is presumptuous to characterize a Quebec-only referendum on separation as anything more than an opinion poll. Furthermore, a provincial referendum on a matter of national scope and importance is of little persuasive value. No province can take action which will seriously and irreversibly affect all Canadians without all of us deciding the matter.

It is presumptuous to justify ripping a country apart on the basis of a simple majority of as little as 51% in a provincial referendum – which is the only threshold the separatists feel obliged to reach. (Adding flagrant insult to injury, secessionists the world-over always want to keep staging referenda until they get the result they want, at which time they will conveniently deem the issue to be settled for all time.) If 51% of Québécois support separatism at a given moment in time, are the 49% who are opposed expected to go along for the ride? No. Simple majorities are used to determine routine matters; dismantling a country requires a much heftier show of support. Surely, an overwhelming majority of not less than 75% should be required before fundamental acts of this sort even be contemplated.

It is presumptuous for one group to seek “self-determination” while at the same time denying it to others. Native Canadians, Anglophones, and many Francophones in Quebec oppose separation from Canada. In areas where opponents to separation predominate, they must have the same right of “opting out” that Quebec separatists so insistently claim for themselves. Areas of the province where loyalists are in the majority ought to have the right to opt out of separation. Where loyalists predominate, both they and the territory they occupy should remain in Canada. Sauce for the proverbial goose is sauce for the gander: self-determination for separatists means that there must also be self-determination for loyalists, at least where numbers permit. If Canadians are willing to discuss the possibility of separation – and there can be no separation without the consent of the rest of Canada – discussions ought to proceed only on the basis that the territory of Quebec as a province within Canada is unlikely to coincide with the territory of an independent Quebec. Separatists must face the fact that a separate Quebec is liable to be smaller than the Quebec they know today.

It is presumptuous for one generation at one given point in time to take precipitous action which would at once deny future generations their birthright, declare the grand experiment of two major linguistic groups living together in relative harmony an abject failure, and negate the achievements of past generations who worked, fought, and died for a strong, united Canada.

There are good reasons why Canadians should refuse to permit Quebec’s secession. First of all, it will destroy Canada as we have known it, weakening us and diminishing our stature internationally. Besides, separation is founded on a retrograde concept, namely ‘ethno-linguistic nationalism.’ That concept is, sadly, alive and kicking in much of the world – witness the bloody barbarism not so long ago in what used to be Yugoslavia and in Rwanda, and even more recently in Myanmar and Ethiopia, and in so many other places. (And, in China, over a million members of the ethno-religious Uighur minority are currently incarcerated in what amounts to concentration camps for so-called “reeducation.”) The concept of nationalism based on ethnic or linguistic origin is an alien one in North America (or at least in that part of North America which is north of the Rio Grande). There are compelling reasons to keep it that way. Ethnic nationalism has consistently shown itself to be primitive and destructive: it breeds intolerance, xenophobia, and racism. Even in its least offensive incarnations, it represents a narrowness of vision. The opposing concept, of ‘civic nationalism,’ is to be preferred. It engenders allegiance to (and solidarity with) a shared set of fundamental principles embodied in a liberal democratic nation. Membership in that nation is based on sharing those common principles – not on ethnicity, language, religion, or skin color. Canadian nationalism is an inclusive form of nationalism based on things that draw people together rather than things which divide them.

There are other reasons to oppose separatism. One is that it would leave Francophone minorities outside of Quebec and the Anglophone minority inside that province in a precarious position as far as their cultural and linguistic future is concerned. Surely, we have not protected the rights of linguistic minorities for so long only to abandon them to their own devices now. Furthermore, separation is founded on the perverse notion that only an independent Quebec can safeguard the interests of Francophones living there. More than a century and a half of history has demonstrated the contrary. Indeed, a united Canada has been uniquely successful in maintaining the language and culture of its two major linguistic groups since Confederation.

There is only one reason why Canadians might decide to go along with separation, that is: a desire to avoid a violent conflict. Some things are worth fighting for, but many Canadians would hesitate over making the struggle for unity a violent one. Few of us would want to remain united by force. So, we might permit separatists to secede if they come to power and if they then secure a clear so-called “mandate” to “negotiate” separation. But, we should insist upon a country-wide vote (if only for its moral suasion), at least a 75% majority within Quebec, and the absolute right of Canadian loyalists within the province of Quebec to opt out of an independent Quebec, taking the territory they occupy with them where numbers permit.

The break-up of a country is too big a subject to be entrusted to politicians, particularly in light of their sorry track record in all things constitutional over the years. Our politicians have done us a grave disservice by leaving so very much unsaid on the subject of secession. They have failed to make it clear to separatists that there will be no separation without the consent of al1 of Canada and unless it is on terms acceptable to all of us. Indeed, no crop of governments (federal or provincial) has a preexisting mandate to establish the terms of separation; they should not purport to do so without returning to the people through elections, referenda, and other means. Our leaders have failed to make it clear that if it is permitted to leave Canada, Quebec will not be guaranteed “territorial integrity.” They have failed to object to the absurd notion that as few as 51% of the people in one province have the right to overturn everything for the remaining 49% in that province, not to mention the millions living elsewhere in Canada.

Our leaders have failed to state the issues clearly. Separation is made to sound more palatable by use of the word “sovereignty.” Loyalists, meantime, are demoted to mere “federalists” – as though supporting a united Canada and seeking its demise were two equally reasonable, equally laudable, viewpoints. A small case-in-point was the spectacle of the Bloc Québécois leader (and Member of Canada’s Parliament) Lucien Bouchard spreading his gospel of disunity abroad prior to the 1995 Quebec referendum – partially at the expense of the Canadian taxpayers. Preaching separatism was, at best, incompatible with the role of the leader of the so-called “loyal opposition.” (At worst, it skirted the line of sedition and outright treason.) While we could not prevent Bouchard from speaking out, we should not have financed his patently disloyal activity (through federally-funded receptions and the like).

Worst of all, our politicians have always failed to make it known publicly and unequivocally that Quebec can only be in Canada or out of it. There is no half-way house, no best of both worlds. Canadians should not stand for an attempt to construct such an arrangement. There should be no interest in sharing our currency, passports, embassies, defense arrangements, or any of the other accoutrements of nationhood, with the very people who will, in an excess of extraordinary self-preoccupation, have destroyed our beloved, united Canada. That means (among other things) that citizens of an independent Quebec ought not to be entitled to vote in Canada, or to send representatives to the Canadian Parliament, or to be employed in the Canadian civil service, or to continue to have Canadian government offices or agencies located on their side of the border. Yet some blithely assume that citizens of an independent Quebec would be entitled to all of those things – and more. Those who would separate cannot have it both ways; but, to date, only a few isolated voices have told them so. No doubt our politicians are afraid to inflame the situation or to burn their bridges; but, people living in Quebec and elsewhere have the right to know what precisely is at issue before they start making choices – or voting in referenda.

In the concluding book of C.S. Lewis’ seven-part allegorical fantasy, the world of Narnia, inhabited by various sentient races, comes to an end. The gates of paradise are literally thrown open, but one group refuses to budge. Instead, in an surfeit of insularism, they sit on the ground, arms folded and faces full of frowns, insisting that they won’t be ‘taken-in’ or hoodwinked. They can’t see paradise past their own parochial self-preoccupation and narrow dogma: “We haven’t let anyone take us in. The Dwarfs are for the Dwarfs.” No less small-minded and senselessly obstinate, the separatists are for the separatists and for no one else: no matter the cost to others (and themselves), they remain willfully blind to their immeasurable good fortune in being citizens of the fine and bountiful country called Canada.

John Arkelian is a writer, lawyer, and former diplomat. His forebears came to Canada nearly three centuries ago.

The foregoing essay also appeared in the Spring 2021 issue of Grapevine Magazine.

************************************************

“The Polity and Us”

An organized society, or ‘polity,’ is made up of innumerable interactions among

individual persons – and between each of us and the myriad of laws, norms, policies, and practices that govern the ways we navigate our way through daily life. Never mind the overrated internet; the real ‘world-wide web’ is the profuse, intricate network of connections between people, regulatory bodies, and commercial enterprises – among other entities, like religious, cultural, educational, recreational, and volunteer-driven community service organizations. The ancient Greek philosopher Aristotle said “Man is by nature a political animal” – or, more literally, “an animal which lives in cities.” For Aristotle, the ideal polity is one in which we respect each others’ rights, live by mutually agreed rules, and are governed with our consent. In a very real sense, the polity is us, and we should be ever mindful of ways to make it more just, more amenable to the attainment of the full potential of each of its members, and more conducive to their general welfare. Perfecting a polity is a perpetual work in progress. And, we still have a lot of work to do. Consider these examples from the realms of representative government; constitutional reform; individual freedoms; the regulation of commerce; strengthening consumer protection; repairing a broken legal system; practicing a foreign policy that truly reflects our shared values; and addressing cultural conundrums like those governing our approach to minority communities.

Charles de Gaulle observed that, “Politics are too serious a matter to be left to the politicians.” His contemporary, the French poet and man of letters Paul Valéry, observed that, “Politics is the art of preventing people from taking part in affairs which properly concern them.” In Canada, we have periodic elections, of course; but most of us have very little ability to influence public policy. Those elected to represent us may not heed, let alone implement, their constituents’ views. And, after many years of power being unduly concentrated in the hands of the Prime Minister and his close staff, even individual Members of Parliament have very little say in the decisions that affect all of us. There are ways to ameliorate those problems. We should impose term limits to ensure that fresh faces are constantly re-oxygenating the electoral waters and to forestall familiar ones from making a perpetual perch out of public office. We should enact recall provisions which empower the electorate to compel a by-election when a threshold number of voters sign a petition expressing ‘no confidence’ in an elected representative.

We should severely circumscribe a Prime Minster’s unilateral power to ‘prorogue’ Parliament. In December 2008, Stephen Harper used that power to derail an effort by opposition parities to replace his Conservatives with a coalition government. More recently, in August 2020, Justin Trudeau used it to blunt the critique of his government’s ethical failings in the ‘We Charity’ scandal.

We can put meaningful power into the hands of individual members of the federal and provincial legislatures by empowering party caucuses to overrule party leaders by majority vote and/or by mandating that most votes in Parliament be free from party control. Both of those measures should be entrenched in the constitution to ensure compliance. We should experiment with proportional representation, both federally and provincially. The existing ‘first-past-the-post’ system means that a party that gets a plurality of the votes (i.e. more votes than any single competing party but not the overall majority of the votes) can, and often does, get a majority of the seats in the legislature. It’s a result that does not fairly reflect the way the electorate actually voted.

And, while we’re on the subject of experiments in representative government, let’s try something truly outside of the box with a trial-run at selecting representatives by random draw, precisely as now happens for the serious responsibility of jury duty, in lieu of conventional elections. Although voters would lose the chance to size-up prospective candidates, each and every one of us would instead become a latent legislator – potentially being called upon to do our civic duty by representing our fellows at city hall, in a provincial legislature, or at the federal Parliament. Wouldn’t it make us more invested in our own governance – and less cynical about political affairs? A simple screening measure (to ensure sound mind and good character) could adequately weed-out those who are unfit. Those selected would have their preexisting jobs held for them while they were assigned the temporary role of ‘Citizen-Legislator.’ We’d have a random sampling of people from all walks of life. And, with one fell swoop, we’d rid ourselves of the unwelcome specter of professional politicians, whose quest for election prompts them to (often disingenuously) tell us what we want to hear while they put their own interest in reelection over the public interest and too often vilify those of opposing affiliation in the process.

Matters concerned with the nation’s public institutions lead us into the always problematic waters of constitutional reform. Any self-respecting wish-list for those core reforms would include the following: Canada’s unelected Senate should be abolished and replaced with one that is equal, elected, and effective: it would have substantive powers and its own areas of special responsibility; and it would be comprised of an equal number of Senators – either from each province or from each designated ‘region’ of the country. We should consider abolishing the mostly ceremonial positions of Governor General and provincial Lieutenant-Governors and instead have our ‘Heads of Government’ (the Prime Minister and provincial Premiers) assume ‘Head of State’ responsibilities in their stead when the constitutional monarch is not present in person. Also, at present, municipalities exist entirely at the whim of provincial governments; instead, they should be entrenched in the constitution as a separate level of government.

The constitution should also belatedly implement a common market in goods and services within Canada: it is a travesty that Canada has existed for 153 years without that basic feature of nationhood. A reformed Senate should be given special responsibility for protecting the nation’s two founding languages – in effort to shift the protection of the French language from the selfishly parochial grasp of the province of Quebec. We should remove the Prime Minster’s sole control over appointment of Canadian Supreme Court justices; instead, a panel of experts could recommend potential candidates for those positions for consideration by Parliament. Unless and until mandatory retirement at age 65 for others is abolished, Supreme Court justices should be held to the same restriction – instead of their current retirement age of 75; there is no good reason to give them preferential treatment. We need to reconsider the constitution’s sometimes archaic division of federal/provincial areas of jurisdiction. National standards in areas like health care and in the recognition of professional qualifications (for doctors, lawyers, nurses, teachers, and others) are long overdue. In the area of individual freedoms, we need much stronger privacy protection for all Canadians from state and corporate intrusion.

And what about requiring binding referenda to put questions of conscience or universal impact directly to the electorate? Hearkening back to a long-past issue by way of example, Canada’s switch to the metric system (which began in 1970) should have been left to its citizens to decide by direct vote. Controversial matters like abortion, euthanasia, same-sex marriage, and the legalization of certain narcotics might be suitable candidates for referenda, too, insofar as the issues involved may be too ‘big’ and too connected to personal values for mere representatives to resolve on their own.

The way we regulate (or, too often, fail to regulate) commerce has profound implications for all members of the polity. We urgently need much stronger competition law; the never-ending concentration of money and power in ever fewer hands is anathema to meaningful competition in our supposedly ‘free market’ economy – a result that daily cheats consumers. We need much higher tax rates (approaching 100%) for extreme wealth. We need a definitive end to the practice of hiding income in foreign tax havens. We should require worker representation on boards of directors. Employees’ salaries and pensions should get coequal priority in the law with secured creditors in cases of corporate bankruptcy. And, why not impose a fixed limit (say, five percentage points) on the differential between the interest rate paid to depositors by banks and the interest rate said banks can charge for credit card purchases and certain other debts? Throughout much of 2020, for example, financial institutions paid a mere fraction of 1% per annum in interest to their hapless depositors while inflicting usurious interest rates (in the vicinity of 20% or more per annum for credit card debts) on the self-same customers: they should be forbidden by law from doing so anymore. Under the proposed reform, if a bank pays you a paltry 0.2% in interest, at least they would be barred from charging you any more than 5.2% in interest for credit card debt, personal loans, or residential mortgages on one’s actual dwelling-place.

Regulations governing consumer protection in this country are woefully lax. We need strong new measures to curb the notoriously excessive pricing of things like banking machine (ATM) use, cell-phone contracts, bank fees, cable TV, internet, and auto insurance. ‘Market forces’ on their own are failing to ensure competition and reasonable charges. We should require 51% membership by laymen on professional disciplinary committees (e.g. judges, lawyers, doctors, dentists, accountants, et al.), so we don’t have bad behaviors inadequately regulated by self-interested practitioners in the same field. We should impose scrutiny and accountability on professional self-regulatory bodies. For example, the Law Society of Ontario, which regulates the 50,000 lawyers in this province, is needlessly (gratuitously, even) opaque, undemocratic, and utterly unaccountable – to the detriment of its members and the public alike.

The neglect of the elderly in this country is not just scandalous; it is a crime, quite literally. An October 2020 investigation on CBC-TV’s “Marketplace” revealed that provincial investigators reported 30,000 violations in Ontario’s long-term care homes over the past five years. Worse still, those official violation notices resulted in no consequences – none. 538 long-term care homes broke mandatory rules repeatedly – with no sanctions, no fines, and no criminal prosecutions – even for instances of flagrant neglect or outright abuse of the elderly. Ontario’s Minister of Long-Term Care, Merrilee Fullerton, recently had the gall to say that, “There’s no tolerance whatsoever for negligence or abuse” – a preposterous contention that is flatly contradicted by the fact that not a single criminal charge has been filed against the perpetrators of such crimes. Indeed, 85% of Ontario’s nursing homes have repeatedly broken the law for abuse and neglect – and gotten away with it time and again. We need iron-clad national standards governing nursing homes; an end to profit-driven nursing homes; zero-tolerance for abuse and neglect; criminal charges for those who commit such offenses; and closure of nursing homes for the most serious offenses. While we’re at it, we should ensure that said national standards abolish shared rooms and require air conditioning: most of our seniors have been stewing in extremely hot rooms during our severe summer weather. We need also need better trained staff, who are screened for empathy as well as competence, and a far more sensible staff-to-patient ratio.

Our system of justice is premised upon the fiction that people can pursue their rights through the courts. But most people cannot begin to afford to retain a lawyer for litigation cases. Consequently, too many people are obliged to abandon their rights altogether or to struggle to represent themselves. That renders our system of justice a dysfunctional failure. We must urgently seek ways of addressing this unacceptable situation. One approach might be to substantially increase the funding and the coverage of provincial legal aid programs. Another might be to consider mandatory ceilings on the hourly fees charged by lawyers. Without action of some sort, there will continue to be no access to justice for most Canadians.

What are some of the other aspects of a broken legal system? For one, recidivists are routinely re-released on bail pending trial by jaded judges and prosecutors – in flagrant contravention of provisions intended to protect the public. We should consider reducing the discretion available in enforcing such provisions. The number of “bad apple” judges, who behave abysmally in the courtroom, would shock a casual observer. The so-called preventative measures in place are laughably feeble; new measures are needed to enforce proper judicial decorum and thus halt erosion of respect for the administration of justice. A novel approach might be incognito ‘inspectors-general’ with the power to act decisively in the face of misconduct by suspending a judge on-the-spot pending the disposition of disciplinary charges.

Some issues involve not only questions of core cultural, historical, and legal principles but also personal convictions – even as they go to the heart of what kind of country we want Canada to be. For instance, should we abolish state-supported multiculturalism in favor of encouraging newcomers to assimilate? And, should we consider an even bigger sea-change with respect with indigenous peoples, by, for example, phasing out all state-sponsored reservations? It would be no easy matter (to put it mildly) to enact substantive change in that area, entrenched as present arrangements are in our constitution, binding treaties, and the decisions of upper courts. But, there’s a conundrum or two at the heart of things: In the first place, how does it make sense in 2020 to call some Canadians “indigenous peoples?” In what way are they “indigenous,” any more than the rest of us are “colonists” or “settlers?” Some of us are descended from colonists, settlers, or immigrants; others of us are descended from indigenous peoples. More problematic still, with the unfortunate exception of a figurehead hereditary monarch, we do not inherit rights or status based on whom we are descended from. However much ‘aboriginal rights’ and ‘indigenous status’ are currently entrenched in our laws, the very act of entrenching them, on the otherwise suspect basis of inheritance, contradicts our core principles of equality before the law and universal rights as the common legacy of all people.

Public morality is out of favor these days as a topic of discussion, but it is at the heart of other issues that affect the polity. Does advertising for gambling (lotteries, casinos, etc.) belong in print, broadcast, or online media? Is the normalization of gambling in the public interest? The same goes for the legalization of some narcotics. Is normalizing recreational drug use in the best interest of society? Opinions on those subjects will vary enormously, and they will inevitably be influenced by private convictions and personal tastes; but they’re worth fearless consideration by those interested in the public good.

Finally, we need to practice a foreign policy that truly reflects and upholds our core values. Instead of simply “raising concerns” about human rights abuses at high-level meetings about other matters, we ought to do something about them. We should actively oppose having prestigious international events like the Olympics held in countries, like China, which are shameless abusers of human rights. Likewise, we should oppose having the next G-20 heads of government meeting held in Saudi Arabia, a tyranny, like China, which unapologetically attacks human rights and hurts people. If we are overruled and such meetings in such retrograde places proceed over our principled objections, we should boycott those meetings and encourage our democratic allies to do the same. That’s called putting our principles into action.

It may surprise many people, here and abroad, to learn that Canada is a substantial exporter of arms. We like to regard ourselves as a mostly peaceable kingdom. Yet, in June 2016, “The Globe and Mail” reported that Canada was the second biggest arms dealer to the Middle East. The lion’s share of our arms sales to that volatile part of the world consisted of a large shipment of combat vehicles to Saudi Arabia, which may be using them in the protracted, ruinous conflict in neighboring Yemen. In that same year, remarkably, Canada was ranked as the sixth biggest arms exporter in the world! What is the moral polity to do? The answer is crystal clear: we must permanently restrict our sales of military weapons and equipment to fellow Western democracies which respect human rights (lately, that would exclude our ostensible NATO ally Turkey) and insist on guarantees that said recipients will not in turn resell Canadian arms or equipment to any other nation.

As a party to the ‘United Nations Convention against Torture,’ Canada is “obligated to prohibit, prevent, and punish acts of torture [and] to provide redress to survivors in Canada.” But, as the Canadian Center for International Justice puts it, “it is not enough to merely denounce torture. Canada must also hold perpetrators accountable and provide legal avenues to survivors in Canada seeking reparations.” An obvious mechanism for accomplishing those objectives is to permit injured parties in Canada to sue foreign governments and their agents for harm inflicted abroad. Perversely, though, our ‘State Immunity Act’ still shields governments accused of torture and other forms of ‘cruel, inhuman, and degrading treatment’ by giving them immunity in Canadian courts from civil lawsuits seeking redress for such crimes. There is ample precedent in Canada for us to amend that law and further restrict the application of state immunity. Around 1980, a Canadian citizen claimed damages against the Soviet Union for unpaid printing bills and attempted to have a sheriff seize a Soviet merchant ship in Toronto’s harbor in execution of a default civil judgment. The ensuing severe diplomatic incident (the Stanislavsky matter) focused minds at the Department of External Affairs on the subject of state immunity. Canada subsequently acted to replace its existing “absolute immunity” regime with a “restrictive immunity” regime, which stipulated that foreign states would no longer be immune from the jurisdiction of Canadian courts if they engaged in commercial transactions here. As one of the drafters of the new limited immunity approach, we have to ask – why should foreign states be answerable in Canada for commercial disputes but not for the heinous crime of torture? The answer is that foreign states ought to be held accountable for the crime of torture, and Canada’s State Immunity Act should be further amended to facilitate said accountability. That’s another way of practicing a foreign policy that truly reflects and upholds our core values.

The polity is us: let’s work ceaselessly to make it a better one.

John Arkelian is an award-winning author and journalist. He represented Canada abroad as a diplomat and helped draft the new State Immunity Act.

The foregoing essay also appeared in the Winter 2020-21 issue of Grapevine Magazine.

Visit the photography of Terry Rowe at: https://terry-rowe.pixels.com/ And see our ‘portrait of the artist’ at: https://artsforum.ca/photography

************************************************

“When Politics and Law Collide”

“[That] ill deserves the name of confinement which hedges us only from bogs and precipices. So… however it may be mistaken, the end of law is, not to abolish or restrain, but to preserve and enlarge freedom.” (John Locke, 1690).

Politics and the law don’t mix. In the Free World, the law preserves and enlarges our freedom by guaranteeing equal protection to all.

Rich or poor, powerful or meek, mainstream or minority, we are all equal before the law. An inviolable, impartial guardian, the law must stand above partisanship, favoritism, and calculations of either political or private advantage. When politics and law collide, the rule of law is threatened and the chief guarantor of our freedom is undermined. Yet, precisely such headlong collisions – between a self-serving ‘irresistible force’ and our protective ‘immoveable object’ – have been coming fast and furious in the past couple of years. Consider these alarming examples from Canada and the United States.

In early February 2019, Canadians learned that the government of Justin Trudeau had been making a sustained, deliberate effort to interfere with the criminal prosecution of a favorite corporate son of the province of Quebec, namely, the engineering and construction firm SNC-Lavalin. That company had been charged by the RCMP in early 2018 with unlawful dealings abroad (involving $48 million in bribes and $130 million in fraud) arising from contracts it criminally secured with the dictatorial Ghaddafi regime in Libya. A fundamental tenet of the rule of law is that prosecutions and politics do not mix. There is no role for politicians – ever – in deciding who should be prosecuted or for what offenses. The Trudeau government tried its best to shatter that inviolable rule. Coincidentally or not, they proposed changes to the law as early as September 2017 (and stealthily passed them six months later, well-obscured in a 582-page omnibus bill) which would

allow for a kind of corporate plea-deal known as “remediation agreements” or “deferred prosecution agreements.” Those agreements would give prosecutors the option of letting corporate transgressors off the proverbial hook in suitable cases, allowing them to forego a criminal conviction in exchange for payment of a fine and cooperation with the authorities. But the discretion to extend that option (or not) would remain vested solely in the hands of the non-partisan Director of Public Prosecutions. In October 2018, that top prosecutor decided not to extend that ‘get out of jail free’ option to SNC-Lavalin, and her boss, Canada’s Attorney-General, Jody Wilson-Raybould, endorsed that decision.

That should have been the end of it. However, over the course of several months, Wilson-Raybould came under unrelenting pressure – from the Prime Minister, his Principal Secretary (Gerald Butts), the supposedly non-partisan Clerk of the Privy Council (Michael Wernick, who was the nation’s highest-ranking civil servant), and several others – to reverse her decision, overrule the professional prosecutors, and cut a deal with Lavalin. The reasons advanced were: the jobs that company represented for Quebec, an upcoming election in that province, and Justin

Trudeau’s own political interests as an M.P. from that same province. A criminal conviction would bar SNC-Lavalin from being considered for contracts with the federal government for ten years and thus hurt its bottom line. Meanwhile, that company waged an all-out campaign to derail the criminal case – by lobbying politicians and even (ever-so-brazenly) asking a court to compel the prosecution to exercise its discretion in the malefactor’s favor. (It takes truly astounding impudence to try to force the hand of the side with sole legal discretion in a matter to exercise it in your favor: discretion would scarcely be discretion if it could be compelled by the party seeking a favorable result.)

Trudeau and his minions were impatient with Wilson-Raybould’s principled stand. As Minister of Justice, she technically had the power to overrule her prosecutorial staff (a power, incidentally, of recent vintage which should never have been created); but, she correctly pointed out that such an extraordinary power should be contemplated only in exceptional circumstances – and never in response to political pressure. When cajoling and nagging didn’t work, Team Trudeau tried veiled threats on for size. Then, they made good on those threats (on January 14, 2019) by demoting Wilson-Raybould to a lesser cabinet position. When Trudeau had the temerity to say, scarcely a month later, that Wilson-Raybould’s continued presence in the Cabinet constituted tacit confidence in his handling of the SNC-Lavalin affair, she resigned from the Cabinet the same day, followed by her colleague, Treasury Board President Jane Philpott. They understood that there is no legitimate role for politicians in prosecutions. At first, Justin Trudeau mendaciously denied that he and his confreres had applied any pressure. When that ruse proved fruitless, founded, as it was, on a lie, they changed tack, arguing that the pressure they did apply hadn’t crossed any lines of propriety. Sadly, it did precisely that – as the Integrity Commissioner (and every objective observer’s good sense) subsequently confirmed. Trudeau et al. covered themselves in shame: So much for ‘doing politics differently.’

“Plus ça change, plus c’est la même chose.” The more things change, the more they remain the same. Flash forward to July 2020, and we have the spectacle of another ethical failure. The Trudeau Cabinet awarded the exclusive administration of a huge ($900 million) new government program to a charity which has close ties to the prime minister and to Minister of Finance Bill Morneau. There were no bids, there was no competition; instead, the massive contract was simply handed to ‘We Charity,’ an organization (which also has a private, for-profit arm) which has paid hundreds of thousands of dollars to Trudeau’s mother and brother for speaking fees and expenses. That NGO also employs Morneau’s daughter; and, it flew him (and members of his family) abroad, initially at its expense, to show-off its work. Beyond that, ‘We’ boosts Trudeau’s ‘brand’ by according him rock-star status at its big events. The exposure and mindless adulation accorded Trudeau at those ostensibly non-partisan rallies was a tangible political benefit, even if most of those doing the cheering were still too young to vote. Yet, both Trudeau and Morneau participated in Cabinet discussions and weighed-in in ‘We’s’ favor, when they were duty-bound to ‘recuse’ themselves (that is, to exclude themselves from that decision-making process) because they had a conflict of interest.

In protecting our common interests, the law requires that those acting on our behalf (by, for example, disbursing public monies) be objective and without a private interest in the matter before them. Were it otherwise, private and political interests would inevitably tilt decisions to favor those in a position to benefit the policymakers. As in the ‘We’ scandal, it doesn’t have to be a corrupt exchange of favors to be unethical. Those in positions of power must be above reproach: that means cozy familiarity with the recipients of enormous public largesse is unethical. Trudeau, Morneau, Trudeau’s Chief of Staff (Katie Telford), the current Clerk of the Privy Council (Ian Shugart), and the entire Trudeau Cabinet knew, or should have known, that the private links between Messieurs Trudeau’s & Morneau’s families and ‘We,’ rendered the latter pair’s involvement in granting benefits to that charity unethical, improper, and unlawful. Yet our toothless enforcement system (and a conveniently timed suspension of Parliament) has failed to hold them accountable in meaningful ways – notwithstanding Morneau’s resignation as the appointed sacrificial goat.

In December 2018, the one-party regime in China kidnapped two Canadians (Michael Kovrig & Michael Spavor) to hold as hostages after Canada detained a senior executive with the Chinese telecom firm Huawei, Meng Wanzhou, pursuant to an extradition request from the U.S. Department of Justice on charges of fraud. It was a lawless act by China, in which the real criminals were not the detainees (who have languished for the better part of two years in harsh conditions while Meng is free on bail and living in luxury), but, rather, the brutish regime which abducted them. In June 2020, formal charges were laid against the two Canadians. The charge (of espionage) would be laughable, were it not levied by a state in which there is no rule of law, no human rights, no respect for established norms of international behavior, and no fair trials. That same month, a number of Canadian ‘notables,’ including a former Supreme Court justice and a former justice minister (both of whom should know better), urged the Canadian government to intervene in the extradition hearings, release Meng, and swap her for the two Canadians. They pointed to an obscure section of the Extradition Act which gives the Minister of Justice the right to intervene at any time. We aren’t sure why such an unfortunate clause exists, but, in practice, it is never used.

It is just plain wrong to characterize an extradition case as a political matter. It is a legal process, plain and simple, with no room at all for political interference. If elected officials were ever to contemplate intervening into an extradition case, it would have to be on grave public policy grounds. Take, for example, the American extradition request for Julian Assange, currently before the courts in the United Kingdom. In his case, there may be policy reasons to block the extradition, quite apart from the strictly legal considerations: (a) his WikiLeaks organization is analogous to a media organization and arguably should be afforded the same freedom of the press which is so integral to a free society; (b) charging mere whistleblowers under the Espionage Act, as though they were spies and traitors (as even the supposedly benign Obama Administration was fond of doing) is grossly inappropriate (besides, Assange, who is Australian, can hardly be said to have betrayed the secrets of a country which is not his own, as the offense that is being misapplied against him stipulates), and (c) there is a reasonable apprehension that the prosecution of Assange is politically motivated. In Meng’s case, on the other hand, there is no role for interference by the political branch of government into the independent judicial branch proceedings. It is, from beginning to end, a legal matter, not a political one. But, even if it were otherwise, a ‘prisoner-exchange’ would be against public policy, for it would reward state kidnapping, blackmail, and ransom – hardly a precedent we wish to set.

South of the 49th Parallel, Donald Trump’s political interferences

with the rule of law are as numerous as they are lamentable. In February 2020, he dubbed himself the “chief law enforcement officer” of the United States: This self-styled prosecutor-in-chief has repeatedly exceeded the constitutional limits of his office by denigrating the criminal prosecutions of his cronies, by publicly dangling the possibility of pardons while cases are still before the court, and by overturning the decisions of military justice tribunals (as in the case of Navy SEAL Edward R. Gallagher, who had been accused of war crimes by his fellow service members) and thereby dangerously undermining the military’s foundational concern for ‘good order and discipline.’

Trump’s egregiously improper attempts at interfering with the prosecutions of such felons as Paul Manafort and Roger Stone are blatant examples of contempt of court. It’s a shame the presiding judges in such cases haven’t said so. While the jury was still deliberating Manafort’s fate (before Trump’s former campaign chairman was convicted of eight criminal counts of bank fraud and tax fraud), Donald Trump publicly opined that Manafort was ‘a good guy’ and that what was happening to him was ‘terrible.’ Those declarations by the President of the United States constituted an egregious interference with the administration of justice: They posed a clear and present danger of influencing the jury, subverting its impartiality, and prejudicing a fair trial. They constituted classic contempt of court. While there are constraints on prosecuting an American president while he is in office, it is not clear that such limitations need impede a judge presiding over a criminal trial from finding the president (like any other person) in contempt of court for utterances that are liable to prejudice that trial’s outcome and/or to bring the administration of justice into disrepute.

Forgetting that his constitutional role is to serve the people of the United States, not the president, U.S. Attorney General William Barr put politics before the law by aborting the prosecution of retired general Michael Flynn (who briefly served as Trump’s national security adviser) in May 2020 – after Flynn had already plead guilty in court of ‘willfully making false, fictitious, and fraudulent statements’ to the FBI about his contacts with the Russian ambassador. It was not the first time, or the last, that Barr improperly put politics ahead of the law.

A Special Counsel, Robert Mueller, was appointed in May 2017 to investigate Russian interference with the 2016 U.S. presidential election; possible links between the Trump campaign and the illicit Russian activities; and possible obstruction of justice. The ensuing investigation led to 199 criminal charges, 37 indictments or guilty pleas (among them, Flynn’s), and five prison sentences (including several persons closely associated with Donald Trump for criminal offenses like bank fraud and making false statements). On March 22, 2019, Mueller concluded his investigation and delivered his report to the U.S. Attorney General. Barr then proceeded to mischaracterize and misstate the report’s findings in a cursory four-page summary to Congress.

The American president has an unfettered discretionary power to pardon criminal offenders; but, surely, it was never intended to be used to obstruct justice. Yet, by placing his private political interests ahead of the rule of law, Donald Trump has done just that. In July 2020, he commuted the sentence of his crony Roger Stone, who had convicted in February for lying to Congress, witness tampering, and obstructing the House of Representatives investigation into possible collusion with Russia by the Trump campaign in the 2016 election. Stone was sentenced to three-and-a-third-years in prison, a sentence which Trump erased with the stroke of a pen – not in the interests of justice, but to reward a minion.

Trump’s efforts to pressure a foreign government (Ukraine’s) into investigating his likely political challenger, Joe Biden (and Biden’s son) by improperly withholding security aid for Ukraine approved by Congress led to his impeachment by the U.S. House of Representatives. It was only the third time in the history of the United States that a president has been impeached. Although Trump was acquitted in the subsequent trial in the U.S. Senate in early 2020, an independent governmental watchdog agency, the Government Accountability Office, concluded that he had broken the law.

Throughout his presidency, Donald Trump has shown disdain for the law and for the very foundations of the democracy he was elected to lead. He has attacked the free and independent press, defaming, as “the enemy of the people,” the very institution which holds government accountable to its citizens. He has repeatedly sought to undermine confidence in the administration of justice by independent prosecutors and impartial courts. And, he has shown open scorn for the other coequal branch of government – the legislative branch. But, worst of all, by far, he continues to subvert public confidence in the nation’s free and fair elections. On August 24, 2020, he used shockingly inflammatory terms like ‘rigged,’ ‘scam,’ and ‘steal,’ to pre-condemn any result in the upcoming November 2020 election that does not result in him winning. Those words (and that reckless effort at rabble-rousing) are the most blatant sort of collision between personal political interests and the rule of law. Free and fair elections, and the peaceful transfer of power, are at the essential beating heart of democracy. By conjuring fictional fears of electoral fraud to inflame his base of supporters (and by fanning the embers of real or imagined social grievances), Trump is betraying his oath to protect and preserve the Constitution.

Every president is bound by that highest duty. Every president is entrusted with the responsibility to protect the democratic system over which he temporarily presides. Every president bears a sacred duty to maintain public confidence in, and respect for, those democratic institutions and for long-established norms of responsible behavior. For a sitting president to deliberately undermine those things for his own political gain is grotesquely unconscionable; it is a betrayal of his office; and it is an incredibly rash act which is liable to push the ship of state onto the incalculably dangerous ‘bogs and precipices’ of which the esteemed English political philosopher (and champion of liberty through the rule of law) John Locke warned 330 years ago.

John Arkelian is an award-winning author and journalist. He represented Canada abroad as a diplomat.

The foregoing essay also appeared in the Fall 2020 issue of Grapevine Magazine.

Visit Michael de Adder at: https://www.deadder.net/ And see our portrait of the artist at: https://artsforum.ca/art-2

************************************************

A Digital Democracy can be a More Open Democracy

The internet has disrupted the news and information industry, creating new platforms to share diverse viewpoints. It has also disrupted the brick-and-mortar marketplace, bringing us wares from as close as the local shopping mall to as far as the world’s bazaars. So, let’s use digital tools to disrupt, and indeed reinvent, democracy itself. That entails open deliberation via crowd-sourcing; issue-based chat-room discussions; using technology to map, structure, and moderate online debates (and to ensure that they’re not overwhelmed by irrelevant posts); and even trying “gamification” [the use of online game design techniques in non-game contexts] to encourage public participation and to ensure a constant flow of communication between the people and their representatives.

This communication channel would be the responsibility of a new body, which I call the “open mini-public.” Similar to Alexander Guerrero’s proposal for a “lottocracy,” open mini-publics would consist of randomly selected citizens; but, they would not necessarily replace our existing chambers of government.

On the federal level, an open mini-public might set the agenda for our elected bodies – and perhaps expand to take on certain lawmaking responsibilities in the future. For their part, municipal mini-publics might have decision-making power over specific issues; and their authority could grow or shrink as we learn how they can best serve the public. These bodies’ size, scope, and composition could vary based on the specific needs and topics they would address.

Through the smart use of digital tools, they would gather ongoing input from the wider public, up to the point of decision-making. Each open mini-public would maintain a digital public space for crowd-sourcing and deliberation. These would function as comment boards and interactive galleries, allowing members of the public to peek into, and contribute their own ideas to the body’s deliberations. Separate, secure chat rooms within these platforms would allow discussions of specific issues by predetermined numbers of additional randomly selected citizens. These could be supported with the “deliberatorium” model developed at MIT to foster structured, organized online debates and avoid the problems of sifting through oceans of often redundant posts. To maximize public involvement, these forums could use principles of “gamification” – such as offering the chance to earn points or even real money for participation. The platforms would also facilitate signature gathering, allowing citizens to participate in initiatives and referendums.

The members of the open mini-public would need to have all this information (and more) processed, synthesized, and made available in a user-friendly format. Vetting could be done by experts and citizen representatives – as in the “Citizens’ Initiative Review” model adopted by Oregon in 2011, in which randomly selected citizen review boards evaluate ballot proposals in order to inform the voters. In addition, trained moderators (some possibly automated) and even ‘political translators’ could help structure the mini-public’s deliberations and ensure the protection of vulnerable minorities, whose voices might otherwise be muted by linguistic and socioeconomic differences.

This model – using mini-publics for a constant rotation of ordinary citizens in and out of our political structures and using digital tools to maintain open communication between the people and their representatives – would bypass the bottlenecks created by elections and party structures. It would help our elected bodies see past their own blind-spots and draw upon a diversity of viewpoints when identifying and solving problems. Above all, it would help democracy tap the collective intelligence of the whole people, not just a few.

Hélène Landemore is associate professor of political science at Yale University. She is the author of “Open Democracy: Reinventing Popular Rule for the Twenty-First Century” (Princeton University Press, 2020).

The foregoing essay is reprinted in Artsforum Magazine with the permission of its author.

Editor’s Note: For more on reforming the way democracy works (including the possibility of selecting our representatives by random draw rather than by elections), see “The Polity and Us,” above, at: https://artsforum.ca/ideas/regional-perspectives

************************************************

Canada Must Reject Calls to Release Meng Wanzhou:
An Open Letter to Prime Minister Trudeau on June 26, 2020

Canadian authorities lawfully detained Huawei CFO Meng Wanzhou in late

December 2018, following an extradition request from the United States on charges of alleged fraud. In response, China, among other aggressive actions, arbitrarily detained (and has now charged) Canadians Michael Kovrig and Michael Spavor on completely spurious national security grounds. Since these arrests, some have argued that Ottawa should simply release Meng in exchange for the release of Kovrig and Spavor – most recently in interviews with and letters signed by a number of high-profile Canadians. These arguments are not only wrong in principle but would involve Canada betraying important values and letting down a number of our key allies. This would be no “prisoner exchange.” That assumes a false equivalence between Canada’s legitimate arrest of Meng in accordance with our legal obligations and China’s kidnapping of Kovrig and Spavor – an equivalence which is as spurious as it is heart-breaking. Such an exchange would be nothing less than the abandonment of the rule of law and acceding to the demands of hostage-takers.

On the matter of the rule of law and extradition, it is vital to recall that Canada has a reciprocal relationship with the U.S. and other trusted countries by which we undertake to turn over people with a case to answer before the other countries’ courts. Under our tradition of the rule of law, however, we don’t simply hand people over. There must be strong evidence that a relevant law has been broken, that the person we have detained has a case to answer, and that they will be treated

fairly if we release them into the other country’s custody. It is this judicial process that Meng is now undergoing. A Canadian judge has ruled that Meng’s alleged offences would be crimes if committed in Canada. Moreover, our view is the alleged crimes involved are not minor; on the contrary, they enabled a scheme that saw hundreds of millions of dollars flow illegally to Iran in defiance of international sanctions. China aims, through its hostage diplomacy, to weaken the international community’s ability to enforce such rules.

Historically, we have only declined to extradite in very narrow and exceptional cases. What is being asked of us in Meng’s case is that we abandon this honourable tradition, not because of some flaw in the extradition case brought by the Americans, but because China is holding our citizens hostage. The integrity of the rule of law and our judicial system requires that we decline to do so.

As for the hostage-taking itself, there is good reason why political leaders across many countries, including Canada, consistently refuse to negotiate with hostage-takers. Once you give in to their demands, you prove that such hostage-taking works. That creates incentives for them to try again. A prisoner exchange would confirm for China’s communist rulers the value of kidnapping Canadian citizens. Once we capitulate, China – and other authoritarian regimes – would reasonably expect us to do so again. If Canada were to ban Huawei from our ‘5G’ [mobile telecom] networks, to pick just one example, what would stop China from simply taking more Canadians hostage to get us to change our minds?

Nor is this just about Canada. China has detained citizens from countries like Australia, Japan, Great Britain, and the U.S. for political ends. If Canada capitulates to Chinese hostage-taking, we would be abandoning solidarity with our allies and making ourselves a weak link when it comes to dealing with Chinese aggression. Ottawa would almost certainly find itself isolated from many of our key allies and partners – and not just the Trump administration. Whatever one thinks of the current U.S. president, to engage in a “prisoner exchange” now would break faith with those U.S. officials who have spoken up repeatedly (and in public) both thanking Canada for honouring the rule of law and our extradition treaty on the one hand and condemning China’s hostage-taking on the other. Releasing Meng now would justifiably cause leaders in both the administration and in Congress to see us as a weak and untrustworthy ally at a time when we need all the goodwill we can muster in Washington. The damage to Canada-U.S. relations would be incalculable and would persist irrespective of the outcome of the presidential election in November.

All Canadians want fervently for Kovrig and Spavor to be released from their outrageous predicament. As painful as it may be, however, we must protect Canadians from hostage diplomacy, uphold the rule of law, and maintain Canada’s sovereign decision-making capacity. A “prisoner exchange” is the antithesis of these vital aims. Holding firm against China’s scandalous treatment of Kovrig and Spavor does not exhaust our options. Ottawa is rightly working with our allies to denounce China’s illegal hostage diplomacy and to improve the deplorable conditions in which Kovrig and Spavor are being held. Yet more can still be done. For instance, Ottawa should issue a warning to Canadians that it cannot guarantee their safety when travelling in China. Canada should also apply ‘Magnitsky sanctions’ against Chinese officials responsible for the detention of Kovrig and Spavor.

We were heartened by your statement before the media on June 22, 2020 when asked if your government was considering a prisoner exchange. You replied then, “No. We’re not considering that … [A]nyone who’s considering weakening our values or weakening the independence of our justice system doesn’t understand the importance of standing strong on our principles and our values.” Such leadership is just what Canada needs at this time. While appeasement might return Michael Kovrig and Michael Spavor to Canada, the cost of such appeasement would be the safety and security of Canadians all over the world, the independence of our judiciary, and the integrity of our sovereign decision-making capacity. We therefore urge you to remain resolute in defence of the rule of law, our traditional values, and our relations with friends and allies, by not giving in to China’s improper and odious strategy of hostage diplomacy.

The foregoing open letter was published by the Macdonald-Laurier Institute on June 26, 2020. It is reprinted here with their permission. For a complete (and periodically updated) list of signatories visit: https://www.macdonaldlaurier.ca/canada-must-reject-calls-release-meng-wanzhou-open-letter-prime-minister-trudeau/

Editor’s Note: The Macdonald-Laurier Institute for Public Policy is an independent, non-partisan think-tank based in Ottawa. It takes its name from two preeminent early prime ministers of Canada: John A. Macdonald and Wilfrid Laurier. One was a Tory and an anglophone, the other a Liberal and a francophone; but they each “championed the values that led to the creation of Canada and its emergence as one of the world’s leading democracies and a place where people may live in peace and freedom under the rule of law.” The MLI proffers thoughtful public policy alternatives to Canadians through its policy research and its outreach through conferences, seminars, and publications on such wide-ranging topics as defense and security, foreign policy, immigration, economic and fiscal policy, Canada-U.S. relations, regulatory policy, regional development, social policy, and aboriginal affairs.

Visit Michael de Adder at: https://www.deadder.net/ And see our portrait of the artist at: https://artsforum.ca/art-2

************************************************

For Whom the Bell Tolls

January 31, 2020: A date which will live in infamy. This time, the enemy is not coming from over the ocean. The enemy is a worm devouring the heart of a human experiment that used to be looked upon as the original model for democracy, a political system based on a belief in fundamental human virtues: honesty, fairness, and respect for each other’s opinions in the eternal human search for truth and justice for all. It was a system heralding three equal branches of power (executive, legislative, and judicial) which was conceived to ensure checks and balances, protecting everyone against abuses, corruption, self-interest, lies, and values antagonistic to its ideals. On January 31st, that system died, destroyed from within by corrupt shorted-sighted elected politicians who placed their self-interest, their pettiness, and their fears above the noble aspirations that have given birth to the American Republic.

American democracy is dead. Long live dictatorship, greed, narcissistic thirst for uncontrolled power, and adulation of the dictator! Long live to the power of money over the concern for justice, equality and human dignity. As announced by Michael Moore (in Michael Moore in Trumpland) and by Denis Arcand (in his film The Fall of the American Empire, which completed his 34 year examination of the theme from 1986’s The Decline of the American Empire and 2003’s The Barbarian Invasions), the collapse of the American dream has arrived.

In the light of this tragedy, let’s hope Canada will open its door to the Americans whose trampled ideals will make them want to become political refugees. The first wave of American Loyalists sought shelter in Canada as a result of the American Revolution, often because they belonged to minority groups that feared being persecuted for their opinions or lifestyles. The time has now come for a new breed of Loyalists, who still believe in the truth and who need to seek protection against a power that will promote social injustice and inequality, corruption, and lies.

The saddest part of the tragedy unfolding before our eyes is that humanity must urgently unite around sound values to save itself from a largely self-induced destruction: climate change. A common unified approach to surmount the present challenges is essential. All our available human resources must be put to work. The current American situation almost guarantees that humanity will miss the boat. Greed, self-interest, nationalism, ethnocentrism, and xenophobia, are absolute obstacles to salvation. Americans ought to place a blindfold over the eyes of their Statue of Liberty and cover their liberty bells with a black shroud. God bless Americans who still value truth, honesty, equality, and justice for all!

Louis Mignault is a retired professor of French. He currently lives in Sherbrooke, Quebec, closer to his roots, where he is at work on a literary novel.

Editor’s Note: Our most acute moments of outrage about the impeachment trial were: (1) Senate Majority Leader Mitch McConnell saying in advance (before they were sworn in as jurors) that he and his colleagues had no intention of being impartial, and (2) law professor (and dubious constitutional ‘expert’ serving on Trump’s defense team) Alan Dershowitz advancing the preposterous contention that anything a president does is magically legalized if said president deems it to be in “the public interest,” including, incredibly, any acts, however illegal, intended to facilitate his own re-election! That’s dangerously pernicious sophistry – on a scale hitherto unimagined.

************************************************

A ‘Full Head’ or a ‘Well Shaped Head?’

The most profound question about the role of education: Rabelais & Montaigne in 16th century France

In the 16th century, the winds of change that had been blowing for over a century south of the Alps with the Italian Renaissance finally crossed over to France and other parts of Europe. Johannes Gutenberg (ca. 1400-68) had launched the printing press, making the spread of knowledge tremendously more rapid and effective; while Christopher Columbus (1451-1506) had opened Europe’s door to a world whose existence was hitherto unsuspected by most Europeans.

In the first half of the 16th century (along with the erudite philosopher Erasmus), a French Benedictine monk named François Rabelais (1494-1553) found a way to spread the growing thirst for knowledge and discovery. As he was also a medical doctor caring for sick people, he came up with the original idea that one way to help sick people to recover was to entertain them and make them laugh. He proceeded to write fictional stories with characters that Hollywood would now call “superheroes” – humans with super-human dimensions and abilities named Gargantua and Pantagruel. Of course, in addition to wishing his readers to laugh at the farcical descriptions and actions of these surreal characters, Rabelais had a much deeper purpose, very much in line with the burgeoning spirit of the Renaissance. He aimed to promote an insatiable thirst for knowledge (“Gargantua” means, “What a large throat you have,” a name that implies an incredible capacity to ingurgitate not only food and drinks but also, and most importantly, knowledge.) So, when the time comes to tell his son’s tutor what he expects Pantagruel to learn, Gargantua enjoins him to stuff up the young man’s brain with everything that can possibly be learnt – from languages (dead or living) to all existing sciences, without neglecting literature and art – a ‘small’ task!

Rabelais also created another young character, Panurge, who embodied the ideal described, while being a free adventurous spirit. Panurge ends up going around the world in search of the answer to the question, “How can I marry and be sure that my wife will not beat me up, nor cheat on me?” As he completes his worldwide quest, he finally gets to the supreme oracle who possesses clairvoyant skills: “The Oracle of the [Divine] Bottle.” Having asked her his anguished question, Panurge receives a one-word answer: “Drink!” Of course, Rabelais’ true message is to absorb all the nectar of knowledge (i.e. the food of the gods) you can possibly take in.

About fifty years later, as the end of the 16th century draws near, a new writer stepped onto the podium, as if to draw the curtain on the extraordinary stage of the French Renaissance. His name was Michel de Montaigne (1533-92). After retiring from an active political life (among other things, as mayor of Bordeaux), he secluded himself at the top of his mansion’s tower to reflect on every topic of interest to mankind. He produced 107 essays of various lengths on a multitude of subjects. From the start of publication in 1580, the book was simply called “Les Essais.” While he claimed in his preface that he only wanted to leave an unpretentious and unadorned portrait of himself for his children and friends, he actually drew on his incredible knowledge of history – from the remotest antiquity to contemporary events – to pass on his views on an impressive variety of subjects. One of his most momentous essays was on the subject of the education of children.

Obviously, Montaigne’s own vast knowledge was exactly what Rabelais had been calling for earlier. However, when it comes to advising an aristocrat on how to choose a tutor for his children, Montaigne stresses that the ultimate goal of the education of a young person is not to stuff his/her brain with information, but rather to teach the young mind how to use knowledge so as to be prepared to deal wisely with complex human issues. For Montaigne, the ultimate goal of education is to produce “une tête bien faite,” that is, a well shaped head, as opposed to one that is simply ‘full’ (“une tête pleine”).

While one can deplore the fact that the current self-styled “genius” in the White House fits neither Rabelais’ nor Montaigne’s bill, it is important to reflect on the broader issues. For example, what has happened in Canadian universities in the last generation? As a professor at the University of Toronto, I have seen a very rapid and deplorable shift in the very raison d’être of universities. The humanities (history, philosophy, languages, literature, and art) have been battered and reduced to second-class citizens, sometimes to non-existence, while more “bread-earning” oriented subjects have been given an inordinate importance, generally stimulated by ‘generous’ donations (with strings attached) from multinational corporations. Stuffing students’ heads with practical knowledge has become so prevalent that armies of young people graduate from universities with a total absence of knowledge on how humanity got to this point in time.

Of course, there is not much resemblance between the fields of knowledge extant at the time of the Renaissance and the astronomical expansion of sciences just in the last century. It is no longer possible to know everything about everything, if it has ever been! However, despite these changes, a ‘well shaped head’ should forever be the primary objective of education. Research has repeatedly shown that graduates with a broad education in the humanities perform better in their careers than those who have been trained exclusively in a job-oriented discipline.

For the last few centuries, the opposition between ‘a full head’ and ‘a well shaped head’ has been a favorite topic for essays in the French lycées. Unfortunately, Montaigne’s view has generally been glorified at the expense of Rabelais.’ The radical opposition of these two great writers is not quite as black-and-white as that. On the one hand, Montaigne was a living paragon of a ‘full head,’ but his emphasis was on developing judgment and wisdom. On the other hand, Rabelais made his position more nuanced when he wrote that, “science without conscience destroys the soul.”

Consider the meaning of a ‘well shaped head’ in the contemporary world. When I was a child, people referred to medicine as an art. One looked up to doctors as well-educated persons who had a solid grounding in general culture – i.e. a ‘well shaped head.’ Now, most of them have become pill and surgery pushers who regard the human body as a machine rather than an infinitely complex being. Likewise, when I was educated, I was taught that the law and lawyers were chiefly concerned with justice. But when I had to sue someone (for reasons that were, to me, black-and-white), my lawyer sarcastically dismissed such notions: “You academics are the only ones who still believe that the law has something to do with justice!” (Nor did he manage to win my ostensibly clear-cut case.) Large institutions, including universities, are now led by technocrats whose only preoccupation is to meet the bottom line, no matter how many human values they have to trample to achieve this. The result is ‘full heads,’ but empty souls. The irony is that in this world in which digitalized information reigns supreme, ‘full heads’ are no longer necessary: a wealth of data on every subject is available at the tip of the fingers. What the world actually needs is ‘well shaped heads,’ those who know how to apply wisdom and sound judgment to the gargantuan complexity of every field of human endeavour.

A final word: would a majority of the British population have voted to leave the European Union if they had studied history in school? Has anyone taught them why the multinational community now called the EU was established in the first place? For centuries, there has hardly been a period of 50 years when the British, the French, and the Germans were not killing each other – the period from Napoleon to the end of World War II gives abundant testimony to that fact. Now, those traditional enemy nations, joined together by the European Union, have successfully lived in peace with each other for over 75 years. Will ‘Brexit’ make it possible for that desirable situation to continue to the end of the current century? When economic self-interest rules supreme, the human soul is the loser.

Louis Mignault is a retired professor of French. He currently lives in Sherbrooke, Quebec, closer to his roots, where he is at work on a literary novel.

Editor’s Note: The European Union (EU), which currently comprises 28 European countries, was established by the Maastricht Treaty in 1993. It traces its origins to the “European Coal and Steel Community” (ECSC) and the “European Economic Community” (EEC), which were established, respectively, by the Treaty of Paris in 1951 and the Treaty of Rome in 1957.

************************************************

Hatred for Donald Trump clouds judgment of Canadians

I am just back to the United States after my third visit to Canada this year. As an American with more relatives in Canada than the United States, I am deeply proud of my Canadian roots and consider the country my second home. That said, because I do get up to Canada on a fairly frequent basis, I’m not the least bit surprised that many of her citizens suffer from the same political disease causing so much division and manufactured hate here in the United States – that disease being ‘Trump Derangement Syndrome’ (TDS).

What I was surprised by was the fact that it had infected the mind of former Canadian Prime Minister Kim Campbell in such a clearly troubled way. With the initial news that monster hurricane Dorian was heading to Florida, Campbell tweeted: “I’m rooting for a direct hit on Mar a Largo!” Pardon me? The former prime minister has since deleted the tweet, apologized for it, and excused it as “sarcasm.” Except that was not her automatic reaction. When first called out on the tweet by someone stating: “There are real people who live and work at the resort,” she doubled-down, responding, “As there are in Puerto Rico – sorry you don’t get snark – but Trump’s indifference to suffering is intolerable!”

Now, as a former government official who does understand how and why President Trump is succeeding in a number of areas, I could explain to the former prime minister how the president has in fact, made a positive difference in the suffering of many citizens – especially those most at risk. But, it would truly be a useless exercise. As I have learned in the United States, to those afflicted with ‘TDS,’ any provably positive successes regarding the president are dismissed out of hand. If Trump said, “The sun rises in the east and sets in the west,” they would call him a liar, and accuse him of being a climate-change denier.

Sadly, a border between nations does not stop irrational and hate-filled reasoning or statements – Canadian actor Eric McCormack being the latest personification of that truism. Last week, McCormack called for the exposure and blacklisting of Trump donors in Hollywood. Responding to an article in “The Hollywood Reporter” about an upcoming Trump fundraiser, McCormack tweeted: “Hey, @THR, kindly report on everyone attending this event so the rest of us can be clear about who we don’t want to work with. Thx.” Being a talented actor and singer does not necessarily mean McCormack is a student of history or the deepest of thinkers. Had he known of the ugly and truly destructive history here in the United States – and Hollywood – regarding the “blacklisting” called for by former Sen. Joseph McCarthy, one would hope McCormack would have had the good sense to have never sent the tweet – a tweet which only helps to confirm to conservatives and Republicans that they are already regularly discriminated against in Hollywood, the media, and academia.

While understanding that there is no cure for ‘TDS,’ I would still say this to former Prime minister Kim Campbell, Eric McCormack, and all other Canadians whose minds Trump is residing in rent-free: The last time I checked, Canada – while indeed, a great nation – still has some very serious problems to deal with which have absolutely no connection to Donald Trump. Countless Canadian citizens in financial and personal distress through no fault of their own surely agree with former Prime Minister Campbell that “indifference to suffering is intolerable” – especially when the “indifference” and “suffering” are happening in their home country. Perhaps the former prime minister and McCormack can get Trump out of their heads long enough to realize that accountability, charity, solutions, and tolerance do begin at home.

Douglas MacKinnon is a former White House and Pentagon official and an author.

The foregoing originally appeared in The Toronto Star on Sunday, September 8, 2019. It appears in Artsforum Magazine with the permission of its author.

Editor’s Note: While our own instinctive reaction to the current president is decidedly negative, it seemed to us that this piece offers some sensible observations about the tendency of a negative perception to color our opinions in an inflexibly absolutist way – one that can negate sober judgment and even fairness. Certainly, we must condemn malign policies, demeanor, mores, and behaviors; but we should do so on the basis of facts and not as an automatic, unthinking, ‘knee-jerk’ reaction to a perspective (or person) which we may dislike.

************************************************

New ‘rights’ for air travelers: Canadians are in for a rude awakening

The first phase of the new Canadian air travel rules came into force on July 15, 2019. The new rules affect the rights of passengers in the case of excessive tarmac delays, denial of boarding, and damage and loss of baggage. The Liberal government argues that the new rules are an improvement, touting them as a “world class [Canadian] airline passenger bill of rights.” Nothing could be further from the truth.

Tarmac delays: Airlines can now keep you waiting longer

Under the 2008 Code of Conduct of Canada’s Airlines, the airline could keep you in an aircraft on the tarmac for up to 90 minutes. After 90 minutes, the airline had to let you disembark. The Code was incorporated into Canadian airlines’ terms and conditions (each airline’s ‘tariff’), and was legally binding. In 2017, Air Transat was found by the federal regulator to have broken this rule and was fined for it. (Regrettably, the fine was waived on the same day). More recently, Sunwing has also been found to have broken the 90-minute tarmac rule.

Under the new rules, airlines can keep you on the tarmac for up to 225 minutes (3 hours and 45 minutes). This is more than double the old 90-minute limit that was also recommended for retention by the Canadian Senate. The new rule establishes 3 hours (180 minutes) as the new limit, and allows the airline to keep you confined to the aircraft for another 45 minutes if take-off is imminent.

Denied boarding compensation: Most likely you will not be eligible

The new rules call for seemingly generous compensation amounts of up to $2,400, but there is a catch. “Denial of boarding” is defined narrowly. Showing that you had a confirmed booking, necessary travel documents, and presented yourself for check-on time is no longer enough. You will also have to prove why you were bumped. You will get compensation only if you have evidence that (at the boarding gate) there were more passengers than the number of seats available on the aircraft and that this happened for reasons ‘within the airline’s control’ and not due to ‘maintenance issues.’ Good luck!

Before the new rules came into force, the federal regulator recognized the principle that airlines should not be able to avoid paying denied boarding compensation by tricking passengers. For example, if you presented yourself for check-in on time, only to find the airline’s counters closed, or if the airline unilaterally changed your ticket, you were still eligible to compensation. The regulator called these cases constructive (or de facto) denial of boarding. Under the new rules, however, passengers caught in such situations are left without protection. The new rules pale in comparison with the European Union (EU) gold standard of air passenger protection.

Baggage: Re-gifting existing rights with small improvements

The right to compensation for delay, damage, and loss of checked baggage is nothing new. For international travel, it has been on the law books since 2003, as Schedule VI of the federal ‘Carriage by Air Act,’ also known as the ‘Montreal Convention.’ The monetary limit of approximately $2,100 has been in place since 2009. For travel within Canada, similar obligations existed in the airlines’ terms and conditions and in regulatory decisions, although the monetary limit was lower for some airlines.

To a great extent, the new rules simply reiterate the rights passengers already had under the Montreal Convention, but with two marginal improvements. First, the Montreal Convention is now extended to cover baggage liability on domestic travel. Second, if your baggage is delayed, damaged, or lost, the airline must refund your baggage fee.

Enforcement: Nothing changes

The new rules provide no new enforcement mechanisms. Lack of enforcement by the federal regulator has been one of the most pressing concerns for the past five or six years. While the regulator already had broad powers to impose fines on airlines that violated passenger rights, no fines were issued in most cases, and when fines were issued, they were not collected. While breaking the new rules is also punishable by a fine, the new rules offer nothing in the way of ensuring that fines are actually issued and collected.

Gábor Lukács, Ph.D. is a Canadian air passenger rights advocate, who volunteers his time and expertise for the benefit of the traveling public. Since 2008, he has filed more than two dozen successful complaints with the Canadian Transportation Agency, challenging the terms, conditions, and practices of air carriers, resulting in orders directing them to amend their conditions of carriage and offer better protection to passengers. He has also appeared before courts across Canada, including the Federal Court of Appeal and the Supreme Court of Canada, and successfully challenged both the Agency’s lack of transparency and the reasonableness of its decisions. In 2013, the Consumers’ Association of Canada awarded Gábor its Order of Merit for single-handedly initiating legal action that resulted in the revision of Air Canada’s unfair practices regarding overbooking. His advocacy in the public interest and expertise in the area of air passenger rights have been recognized by the transportation bar, the academic community, the judiciary, and the legislature.

For more on air passenger rights, visit: https://airpassengerrights.ca/en/

************************************************

Canada should end immunity for perpetrators of torture

We recently marked the International Day in Support of Victims of Torture, an internationally recognized commemoration that began in 1987 to mark the landmark passing of the U.N. Convention against Torture. Every year since then, June 26th reminds us of the harrowing plight of survivors of atrocities and of the crucial need to promote accountability for these crimes.

There are many torture survivors in Canada, and with the arrival of new refugees fleeing violence, the number of individuals who have experienced such traumatic experiences is certain to rise. These individuals are our neighbors, our colleagues, and other members of our community. In my line of work, I have met too many torture survivors, and yet, each time, I am surprised to learn the disturbing details of their ordeal and witness a deep trauma often masked behind charming smiles and humorous banter. They come to me because they want justice – against their tormentor, but also against policies that enable torture and allow impunity for those at the helm. Unfortunately, I have to apologize and tell them that in Canada impunity persists for the perpetrators of these crimes.

As a state party to the Convention against Torture, Canada is obligated to prohibit, prevent, and punish acts of torture, as well as to provide redress to survivors in Canada. In the past, the federal government has condemned torture “in the strongest possible terms” and has provided some minimal financial support to the U.N. Voluntary Fund for Victims of Torture. However, it is not enough to merely denounce torture. Canada must also hold perpetrators accountable and provide legal avenues to survivors in Canada seeking reparations.

In Canada, a civil lawsuit allows individuals to seek compensation from people who have harmed them, even, in some circumstances, when the harm occurred outside of Canada. Yet, this remedy remains unavailable to torture survivors in Canada who were harmed by foreign governments or their agents, because our State Immunity Act shields these governments with immunity. For many of my clients, justice means compensation for the harms and trauma they suffered, but because of this legislation justice is unattainable.

This denial of an effective remedy for survivors of torture was agonizingly illustrated in the case of Zahra Kazemi, a Canadian citizen who was arrested and tortured by officials in Iran for taking photographs of protesters. During her detention, she was beaten, sexually assaulted, and tortured, and ultimately died of her injuries. In 2006, her son, Stephan Hashemi, instituted civil proceedings in Quebec to hold accountable the Iranian government as well as three Iranian officials. In 2014, the Supreme Court of Canada ruled that the State Immunity Act prevented Kazemi’s son from suing Iran, adding that the responsibility for creating an exception to state immunity for torture falls to our legislators.

This is why it is so crucial to amend the State Immunity Act to allow an exception for gross human rights violations, such as torture. This legislation already provides exceptions to immunity for commercial activities, as well as for injury and property damage that occur in Canada. In 2010, the legislation was further amended to include an exception for terrorism. However, other severe human rights abuses, such as torture – whose prohibition is universally accepted as a fundamental principle of international law – remain subject to state immunity. Survivors of atrocities who wish to pursue a civil suit for acts of torture committed abroad cannot seek redress in Canada until our government amends the law.

It is time for our legislators to take action and reaffirm their commitment to the Convention against Torture. By amending the State Immunity Act, they will be sending a strong message that torture is unacceptable in Canada. This is an opportunity for our legislators to confirm – through their actions, not just their words – that torture is an abhorrent breach of our fundamental human rights, so egregious that there can be no form of impunity, nor immunity from it.

Amanda Ghahremani is the legal director of the Canadian Center for International Justice (CCIJ).

The foregoing article originally appeared in The Toronto Star on June 26, 2018. It appears in Artsforum Magazine with the permission of its author.

Visit the CCIJ at: https://www.ccij.ca/

Editor’s Note: Around 1980, a Canadian citizen claimed damages against the Soviet Union for unpaid printing bills and attempted to have a sheriff seize a Soviet merchant ship in Toronto harbor (the Stanislavsky matter) in execution of a default civil judgment. The ensuing severe diplomatic incident focused minds at the then Department of External Affairs on the subject of state immunity. Canada subsequently acted to replace its existing “absolute immunity” regime with a “restrictive immunity” regime, which (as noted in the foregoing article) stipulated that foreign states would no longer be immune from the jurisdiction of Canadian courts if they engaged in commercial transactions here. As one of the drafters of the new limited immunity approach, we have to ask – why should foreign states be answerable in Canada for commercial disputes but not for the heinous crime of torture? The answer is that foreign states ought to be held accountable for the crime of torture and Canada’s State Immunity Act should be further amended to facilitate said accountability.

************************************************

My Country, Sweet Land of Liberty?

I remember those early mornings when I faced the flag, placed my hand over my heart, and pledged allegiance to the flag with my classmates at Bret Harte Elementary School on Chicago’s Southside. During those moments – and for every morning that followed in my twelve-year, rather unspectacular public school career – I was learning the ideals of American democracy that I would carry with me into my adult life. America was presented as a “sweet land of liberty,” my teachers emphasized – a refuge for those seeking freedom from repressive regimes. Our doors and our hearts were always open. The Statue of Liberty stood as safe harbor for our grandparents, our parents, and even some of us in those Chicago classrooms. My America, a melting pot of a nation founded by immigrants, served as an example to the world. We cared more than other countries about the suffering of others and our best characteristic was our infinite acts of charity in around the world.

As I grew older, I learned that we were not perhaps as great as I thought, and that our international forays were sometimes more about protecting our interests and expanding our gains than saving souls from oppression. There were other events that chipped away at my national pride. But Bull Conner’s lynch mobs, attack dogs, and fire hoses during the Civil Rights movement of the 1950s and 1960s were an exception to our exceptionalism. We knew as a nation that this was not the way Americans behaved toward each other. The Kent State shooting during the Vietnam protests was also an outlier, part of our violent, baser, perhaps mammalian, instincts that we failed to keep in check. I truly believed that despite those horrid examples, we would always find our way back to our better selves.

I am a sixty-one-year-old man now, but in so many ways I am still that hopeful boy in Chicago with his hand over his heart facing the flag and reciting the pledge. But what is missing today is that childhood optimism. I watch with disbelief as our nation becomes more hostile, bellicose, and xenophobic, encouraged by President Trump’s example. I am shocked at how fragile our democracy is and how easily it can be subverted with a tweet. I admit I took the stability of our democracy for granted.

When I marched earlier this year with thousands of other Americans protesting the new administration, I realized that my revulsion at its policies did not originate from some new political epiphany or the latest protest du jour. No, the revulsion came from that most apolitical part of my being – my very Americanism, the core of who I am and how I have conducted myself in the world all these years. It was as if everything I had been taught from first grade was not applicable anymore. As if my entire American belief system no longer mattered. Truthfully, I hardly recognize my country anymore. I am still trying to get my head around the idea that we might no longer be a shining beacon of freedom for immigrants seeking safety from injustice. Instead of being welcoming, we might require a religious and even a loyalty litmus test for entry to the American Dream. We might discard the Statue of Liberty as our model to the world. Instead, we might use the fear of “The Other,” as our guide. (I wonder what that statue might look like?) At my age, it is too late to change my fundamental core beliefs. Besides, why would I want to change? I have too much invested in my America. There is nowhere else I want to live out my years. But is my country now abandoning me? Is America filing for divorce because of irreconcilable differences? Are my American values now seen as naïve, idealistic, and antiquated?

We have always been a feisty, opinionated nation that does not shy away from confronting our warts: race relations, unjust wars, social inequality, or equal rights for women. We have yet to solve our issues, of course, but we do make valiant attempts, and, every now and then, we achieve progress. No matter how pitched the battle has been, I have always taken comfort in the fact that we would eventually find our back to each other. Sadly, I now doubt that is possible.

Stephen J. Lyons is the author of four books of essays and journalism, most recently, “Going Driftless: Life Lessons from the Heartland for Unraveling Times.” He is two-time recipient of a fellowship in prose writing from the Illinois Arts Council, and his work has been published in more than a dozen anthologies, as well as The Sun, Newsweek, Washington Post, Wall Street Journal, Globe & Mail, High Country News, Psychotherapy Networker, Salon, Audubon, USA Today, and dozens more. He has reviewed books for a number of newspapers, including the Chicago Sun-Times, Chicago Tribune, San Francisco Chronicle, and Minneapolis Star Tribune. He received a Notable Essay mention in “The Best American Essays of 2016.”

Editor’s Note: The author’s early embrace of American patriotism, and its lasting legacy of benevolent idealism, strikes a deeply resonant chord for us, starting with our own childhood in Illinois and going on from there to a lifelong love for the great principals upon which the United States was founded – ideals, indeed, which are the essential cornerstone not only of that great democracy, but also of the West generally.

************************************************

Why Canada is America’s Xanax

For many of us living in border states, Canada is our Xanax. Just knowing you’re up there – and that there’s at least the possibility of joining you – eases our anxieties about our ongoing presidential campaign madness.

As a child, Canada was an exotic getaway my family explored on a small sailboat. Our summer goal was to make it to British Columbia’s Gulf Islands, which had an ethereal quality, as if we’d trespassed into a more beautiful world where people were thirty percent friendlier. So began my fascination with Canada. As a journalist and novelist, I studied post 9/11 tension along the rural western border. I tired of checkpoint interrogations, coming and going. If France and Germany drive freely across their border, I wondered, do we really need to enforce ours? But I couldn’t resist popping in and out of Canada again and again.

These days, I marvel at what odd neighbors we’ve become; how you tend to be as observant of us as we are oblivious of you. I overheard more vigorous discussions about America in Delaney’s coffee house one morning in Vancouver last month than I’ve heard about Canada in eons of coffee shop chatter in the States. Part of it is proximity. Ninety percent of you live within 100 miles of the border compared to less than five percent of us. So while you’re in the front rows of the balcony overlooking our antics, few of us are watching you and fewer yet could name your prime minister or pass a sixth-grade Canadian civics test. Your news rarely reaches us. An erroneous report that 9/11 hijackers entered the States from Canada was one of the few flashes that spun all heads here. It wasn’t true; but that didn’t stop the Congress from exclaiming, ‘My God, our northern flank is wide open and barely patrolled!’ If Donald Trump ever focuses on our shared border, and the long list of nationalities routinely caught sneaking across it, he may call for a wall, and, no doubt, insist that you pay for it.

Our buffoonery aside, I’ve noticed over the years that you aren’t perfect either. During conversations in Toronto, Winnipeg, and Vancouver, I’ve heard you take smugness to amazing heights, routinely overlooking the fact that our problems and solutions are complicated by having ten times as many people. Besides, your beer is way overpriced, Fifty Shades of Gray was just as popular up there as down here, and keeping the Queen on your money looks oddly dated and subservient to people who celebrate our independence from the Crown by blowing things up once a year. Yet I admit flashes of ‘Canada envy’ whenever I visit your cities that seem to be – in ways I can’t quite pinpoint – better tailored to their inhabitants’ needs and pleasures than ours. And I wonder, why we can’t be a little more Canadian?

So, back to our presidential campaign freak show and how it’s got us thinking about you. As much as we look like the Fractured States of America these days, as deranged as some of our candidates appear, it looks quite possible that we may be following our first black president with our first woman president or – take a breath – our first socialist president. Not only is Bernie Sanders our first viable candidate to call himself a socialist, he may be the first to repeatedly point to Canada as a model for how we should live. He asks large crowds why Canada and most of the industrialized world can provide free health care and we can’t. And he slams U.S. pharmaceutical companies for selling their drugs to you for less than they sell them to us. Which brings us back to Xanax and Mr. Trump: After Trump won seven states in one night in mid-March, Google searches on how to move to Canada rose 350 percent. Contributing to that spike, I was excited to see an immigration loophole for independently employed writers. But, from what I can tell, most of us threatening to move to Canada simply find the notion itself soothing.

Part of me wishes the world’s longest undefended border would be ceremoniously dismantled, at least its checkpoints and their illusions of security. But I see the downsides to a wide-open border, particularly for you, with almost nothing left to slow the tsunami of American commerce and culture from washing over you. And many of us huddled below the border would miss the role an independent Canada plays in our psyche, how it continually helps us reassess our own towns, states, and country. And we’d probably even miss the checkpoints and that sensation of formally passing into a subtly different and perhaps saner world.

Jim Lynch lives in Olympia, Washington with his wife and daughter. He grew up in the Seattle area and worked as a newspaper reporter throughout the United States before turning to fiction full-time a dozen years ago. He is the author of four novels, the latest being the recently released “Before the Wind” (Bond Street Books, 2016) – a story “about a gifted and volatile family obsessed with sailing,” not to mention “online dating and Albert Einstein.”

Visit the author at: http://www.jimlynchbooks.com/

************************************************

The Truth: Zero New Spaces for Refugees in Canada

The story behind last week’s haunting images does not begin with the body of a little boy on a beach in Turkey. The United Nations Refugee Agency (UNHCR) has been reporting for years that people are fleeing violence in rapidly increasing numbers. It reported in June 2015 that last year 42,500 people fled their homes every day. Every day! Half were children. The response? Aid agencies are overwhelmed. Camps are overflowing. Dangerous boats are more crowded than ever. Bodies are appearing stacked in abandoned trucks and washed up on beaches. All of this began before #refugeecrisis was trending on twitter.

Incredibly, many governments responded by erecting fences, shutting down transit routes, putting people in detention, and poisoning the response of their own citizens by claiming that these desperate families are “queue-jumpers” or “terrorists.” Canada has been a part of this. Our government has recently introduced nine bills and two orders-in-council that collectively make it harder for refugees to get to Canada; to be in Canada; and to stay in Canada. It has succeeded in implementing its regressive refugee policy. We are not a world leader on refugee protection according to any metric.

Now that Canadians are seeing the desperation and demanding action, our government is also not telling us the truth about what it has done. For example, the government claims that we do well on the basis of “UNHCR resettlement” numbers, knowing that these statistics rely on a technical definition of resettlement and capture only a small slice of refugees. None of the one million Syrians seeking protection in Lebanon are counted as resettlements. Nor are the tens-of-thousands of people fleeing to Europe; or the 800,000 Germany has recently agreed to take. Using the UNHCR’s legally narrow statistics to say that Canada is a world leader is both factually wrong and insulting to countries that rank below us on these particular lists but are in reality doing much more.

What the government is not saying is that there have been no increases in our commitment to refugee resettlement over the past five years: in 2011, we set a maximum target of 14,000 refugees. We admitted 12,946. In 2016, the maximum is still only 14,000. Over this same five year period, the number of people who need help has increased exponentially: from 43 million forcibly displaced persons and 15 million refugees in 2011, to 60 million displaced persons and 20 million refugees today. An additional five million refugees and zero increase in Canada’s response.

Critically, Canada’s recent commitment to resettle 10,000 more Syrian refugees also creates zero new spaces (remember: our overall resettlement objectives haven’t changed over the past five years). So, all we have done is say that a certain number of Canada’s existing resettlement spots will now be reserved for people from a particular country (bad news if you’re fleeing violence in Afghanistan or Somalia). Faced with four million Syrian refugees and 20 million refugees globally, our government’s response has been to play tricks with statistics and claim credit for things it has not done, and has no intention of doing. (Australia’s government recently tried the same thing. It was forced to change its position in response to public demands that its commitment to 12,000 Syrian resettlements actually be “extra” spots). In Canada, the key number is zero. Zero. That is the number of new refugees Canada has committed to resettle at a time the world is watching and demanding action. We can do better. We must do better. Last week’s images remind us why.

Jennifer Bond is a University of Ottawa law professor who has served with the UNHCR in Syria.

The foregoing article originally appeared in the September 11, 2015 edition of The Toronto Star. It appears in Artsforum with the permission of its author.

Editor’s Note: The dead child whose body was found on a beach by a Turkish soldier is Alan Kurdi, a three-year-old Syrian child of Kurdish ethnicity. He drowned in the Aegean Sea, along with his brother (Galib) and mother (Rehana), on September 2, 2015 when the small inflatable boat in which they were attempting to reach Greece capsized. Alan’s father survived the mishap. (Alan’s aunt lives in Canada.) The poignancy of the young child’s limp, lifeless body being held by a soldier galvanized public opinion in the West, creating a groundswell in favor of granting haven to those fleeing the brutal civil war in Syria. Refugee policy quickly became an issue in Canada’s current federal election campaign, with the Conservative Party government of Stephen Harper attracting criticism for its slowness in approving more refugees.

************************************************

Recognizing the Armenian Genocide

As an adolescent, I shared a close bond with my Turkish grandmother. Born to a large family in an impoverished village in western Anatolia, she had come of age during the early years of the Republic of Turkey, established in 1923 as a secular nation-state on the ruins of the Ottoman Empire. While sociable and loquacious, my grandmother could be touchy on certain matters. Few such matters, though, disturbed her as much as the Armenian genocide.

On the few occasions that I broached the topic, my grandmother bristled, visibly upset by the fact that I had so clearly made a point of raising it. To her credit, she did not deny the events outright – “much evil was done”, she would say, embarrassed and looking downward. But as with so many of her compatriots, she prickled at my use of the term “genocide,” maintained that Turks and other Muslims had also suffered, and suggested that the West should face up to its own past before accusing Turkey of crimes. (France’s suppression of the Algerian struggle for independence was her favourite example here.)

April 24, 2015 marked the centennial of the Armenian genocide. One of the bloodiest events of the First World War, the genocide was the culmination of decades of discrimination against, and heavy-handed persecution of, Armenians in the Ottoman Empire. In May 1915, determined to “cleanse” eastern Anatolia of “fifth columns,” so as to forestall a Russian occupation and finalize a process of ethno-religious homogenization, the Ottoman Empire’s ‘Young Turk’ government ordered the systematic deportation of Armenians. The process unfolded brutally during the months that followed, with hundreds of thousands being rounded up and forcibly transferred to Deir ez-Zor, a barren swath of territory (currently controlled by ISIS) in what is now northeastern Syria. Armenian property was confiscated, rape and massacre occurred regularly, and forced marches through the desert, often without food or water, increased the mortality rate exponentially. Those who survived often did so through conversion to Islam or marriage to local Muslims.

The Turkish state continues to deny that these events constitute genocide. While it admits that atrocities were committed, it argues that they were not part of a consciously designed plan to exterminate Armenians. Noting that the word “genocide” was coined during the Second World War, Turkey also argues that it is anachronistic and legally unjustifiable to apply the term retroactively. The two arguments are structurally linked, since the 1948 Genocide Convention – the first, and still the most important, legal instrument concerning genocide – stresses the “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group,” and it is precisely this “intent” that Turkey denies.

These arguments are misleading and disingenuous. Although the Ottoman archives were purged long ago of many of the most incriminating documents, historians have demonstrated a high degree of operational coordination in regard to the genocide on the part of the Young Turks. Indeed, it is well-established that Talat Pasha and similarly high-ranking Ottoman authorities were instrumental in facilitating the atrocities that were committed during the course of the deportations. It is true, of course, that Turks and others also suffered dearly during the inter-communal strife that marked the Ottoman Empire’s final years. But this does not change the fact that roughly 1.5 million Ottoman Armenians died as a direct result of the Young Turks’ actions and policies. No word but “genocide” captures the scale and depth of this destruction. It is high time for the Turkish state to admit what many of its citizens have long acknowledged in private conversation – that the Armenian genocide was indeed a genocide, and that it demands recognition as such, by Turkey no less than other states.

My grandmother was not prepared to make this admission. And in that respect, she was plainly wrong. She did have a point, though, when she suggested that genocide and related forms of violence are not specific to any one time or place. Perhaps this is ultimately the most important message of all, and one from which we Canadians can also benefit, not least because our current government – a government that has officially recognized the Armenian genocide – refuses to grapple meaningfully with this country’s history of conquering and exploiting aboriginal peoples.

Umut Özsu is an assistant professor of law at the University of Manitoba. He is the author of “Formalizing Displacement: International Law and Population Transfers,” recently published by Oxford University Press.

The foregoing was originally published in The Toronto Star on April 20, 2015. It appears in Artsforum Magazine with the permission of its author.

***************************************************

CBC’s leaders bring it to the brink of an existential crisis

If there was any doubt that Canada’s public broadcaster is confronting an unprecedented existential crisis, it vanished on June 26, when CBC president Hubert Lacroix unveiled the corporation’s latest five-year plan at a “town hall” meeting of staff in a performance that was as disingenuous as it was depressing. CBC’s enemies are not only circling their prey from the outside – the most notable being the current Conservative government with its unrelenting budget cuts. Its enemies are also working from within. The CBC has a compliant board of directors, overwhelmingly stacked with Conservative party donors, and a president, also Conservative, who appears ready to implement any budget cut in virtual silence.

Lacroix delivered for them yesterday. Although confirming the CBC will cut up to 1500 more jobs in the next five years, including CBC’s renowned Documentary Unit that produced Canada: A People’s History and other groundbreaking programs, he described it as “a good day, it’s an important day. This is a plan that is going to work.” But what this “plan” will actually accomplish in the long-term is the burning issue, not only for CBC staff but, more importantly, for Canadians everywhere who value public broadcasting. Let us not be fooled. In the dead of night across this country, cut by cut, in small towns and large cities, in newsrooms and documentary edit suites, Canada’s public broadcaster is being destroyed.

According to the new CBC plan, priorities will be shifted from television and radio to digital and mobile services. This will reduce staff and affect a variety of programs, including local TV newscasts in many regions. Although an increased emphasis on digital mobile services makes sense – and it’s a direction that was started 10 years ago when I was still at the CBC – this plan is really code for deep cuts. It is part of the determined march toward a more privatized, outsourced CBC.

Beyond the digital theme, what is depressing about the new plan is the CBC’s continuing resistance to the radical change that would make it a genuine public broadcaster again. Why wouldn’t the CBC completely dump commercials like its counterparts elsewhere in the world? Why should its English TV service still look like a cheap version of its commercial rivals, or a fading sports channel? The only promising part of yesterday’s CBC meeting was the aggressive pushback by staff. Lacroix was pressed on why the CBC would kill its award-winning Documentary Unit, which has produced programs that, for many Canadians, justify why there is a CBC. And he was criticized for being woefully ineffective in building public support for the CBC, and instead acting as an “enabler” for Conservative government budget cutting.

I have only met Hubert Lacroix once. In 2010, when I was the head of Al Jazeera English, I attended a media conference in New York City. On the first day, while waiting at the elevator, I was flipping through the list of who else was attending, and there I saw Lacroix’s name – and his picture. “So that’s what he looks like,” I thought to myself. I then looked up, and there he was. We immediately went to lunch together. He quizzed me about working with Richard Stursberg, former executive vice-president of CBC Television. Lacroix had fired him a few months earlier. He said that he had heard that Stursberg and I didn’t get along. My only problem with Stursberg, I told Lacroix, was that he was a “wannabe commercial broadcaster” who, sadly perhaps, was working for a public broadcaster. I told him the CBC needs to have genuine, passionate, innovative public broadcasters in leadership, or it is doomed. But I had the impression then that Lacroix didn’t have a clue what I meant. After the lunch, I saw him walking across the street slapping his head as if he was muttering to himself, “Why did I have to meet this guy?” Listening to Lacroix yesterday, at the CBC “town hall” meeting, made me conclude that he hasn’t learned much in the intervening four years.

But that’s his problem. Our problem is much worse. More than ever, our challenge now, as Canadians, is to grab back the future of our CBC before Lacroix and his patrons destroy it. There is not much time left.

Tony Burman is the former head of CBC News and of Al Jazeera English. He currently teaches journalism at Ryerson University.

The preceding article was originally published in The Toronto Star on June 27, 2014. It appears in Artsforum with the permission of its author.

*******************************************************

Let us beware of politicized policing….

On June 12, 2014, Ontarians were asked to pass judgment on the Ontario Liberal Party government and could have denied Premier Kathleen Wynne the seats to maintain her hold on power. But they did not. This outcome was a happy one, in my opinion, for it neutralized the apparent, undue influence on the electorate that may have been intended by the Ontario Provincial Police (OPP) announcement, six days before the vote, that the force sought documents from Ontario Legislative Assembly staffers to resolve allegations that potential evidence of misdeeds (on the part of the chief-of-staff of former premier Dalton McGuinty) had been deleted or destroyed.

Although the OPP investigation into ex-premier McGuinty’s costly 2011 and 2012 cancellations of contracts to build two gas plants in Mississauga and Oakville – and the potential wiping clean of computer hard drives associated with that decision – has been ongoing for the last year, the timing of the pre-election day court order revelation was, at best, mischievous. Perhaps the OPP reminder of its continuing investigation had been intended to balance or offset the Ontario Progressive Conservative Party complaints over the OPP association’s election advertising, which was damning of the Tory platform.

Yet, it is one thing for a de facto union to promote a point of view regarding public policy, and quite another for a police force to hint at criminal wrongdoing, in the political realm, during an election campaign (by definition, a time of intense partisanship), and without laying charges. Indeed, the timing of the OPP legal action – the court order for new documents – revealed so close to the June 12th vote, should remind one of the Royal Canadian Mounted Police (RCMP) ill-timed – if not infamous – intervention in the 2005-06 federal election campaign.

Worse, that intervention likely helped the Conservative (I say “Republican”) Party of Stephen Harper achieve a minority government. Certainly, when then-RCMP Commissioner Giuliano Zaccardelli authored a press release, in the middle of the election, announcing a criminal investigation of the governing Liberals for having allegedly leaked – to Bay Street players – plans for taxation of income trusts, it coincided with an overnight plunge in Liberal Party support. The public announcement of the Mountie investigation, between Christmas and New Year’s Day, during a holiday week of suspended campaign activity, seems to have precipitated the defeat of Prime Minister Paul Martin’s minority government less than a month later.

Former B.C. premier and attorney-general Ujjal Dosanjh, the minister of health in Martin’s cabinet, described the yuletide RCMP announcement as “political interference.” Dosanjh himself may have experienced a sense of déjà vu, for his own premiership was the indirect result of the resignation of B.C. premier Glen Clark, in August 1999, following RCMP searches of his home and office, conducted under the glare of TV cameras, in relation to his alleged granting of a casino licence in exchange for “free” (they weren’t) renovations to his property. As with the probe of the supposed Liberal income trust “scandal,” in which only one bureaucrat was convicted of a crime, the police investigation of Clark also generated more heat than light. Though Clark was charged with breach of trust, he was acquitted.

Nevertheless, as with Martin’s Liberals in 2005-06, the RCMP suggestion of criminality and scandal inflicted immediate political wounds. And not just to Clark, or to Martin’s Liberals, but to the principle that police must not use powers of investigation as political “weapons” against persons or parties with whose policies they may disagree. Moreover, the police actions may have served to deprive the people of B.C. of a relatively decent premier and the people of Canada of a relatively decent prime minister. If so, the police interventions were tantamount to a kind of quiet, very Canadian, very polite coup – by press release. Indeed, the Clark and Martin government investigations, conducted with such malicious publicity, shredded the vital, democratic principle of police neutrality. Surely the image of such objectivity was lost when newly minted Prime Minister Harper shared his first photo-op with then-RCMP commissioner Zaccardelli, whose suggestions of Liberal impropriety had arguably benefited the once-Opposition leader.

So, to return to the June 12th vote in Ontario, news of the OPP investigation had to have been taken with much more than ‘a grain of salt.’ If the Liberals had lost, it should have been due to definite sins committed (many to choose from), not unproven allegations, subject to a police probe that remains, definitively, incomplete.

George Elliott Clarke is the William Lyon Mackenzie King Visiting Professor in Canadian Studies at Harvard University, 2013-14. He is not an adherent of – or donor to – any political party, federally or provincially.

*******************************************************

The Ethical Case against Quebec’s Proposed Legalization of Euthanasia

A recent editorial in The Globe and Mail, “A well-reasoned bill on the right to die” (February 20, 2014), makes the strongest case that can be made for supporting Quebec’s Bill 52 and legalizing euthanasia. Like Bill 52, the editorial focuses only on the individual person who wants euthanasia, and, moreover, is in “unbearable pain.” The editors see the goal of Bill 52 as seeking “to sensibly regulate how a physician can deliberately end a patient’s life.” And they accept that doing so is “a medical and not a criminal matter.” They take comfort in recognizing that “Quebec’s criteria [governing euthanasia] closely resemble the rigorous six-part test offered in the Netherlands” and reassure us that “Quebec has given no indication that it seeks to emulate Belgium’s approach” of recently extending euthanasia to children.

I will critique these points in order. Because good ethics depend on good facts, we need to get our facts straight. First, the title: The terminology of a “right to die” is problematic. If you have a “right to die,” someone else has an obligation to kill you. Rather, as is fully recognized in Canadian criminal and civil law, and in medical ethics, you have a right to be allowed to die by refusing medical treatment. This is a natural death, not euthanasia.

The discussion of the consequences of euthanasia must go beyond its impact on the individual person, important as that person is. Legalizing euthanasia is also a major issue for society as a whole, and the institutions of medicine and law, which, in a secular society, such as Canada, carry the societal value of respect for life.

With respect to “unbearable pain,” we must kill the pain, not the person with the pain. As the internationally recognized ‘Declaration of Montreal’ recognizes, for healthcare professionals to unreasonably fail to offer fully adequate pain management to a person who needs it is a breach of that person’s human rights.

Regarding “sensible regulation,” we should keep in mind that we don’t regulate that which we believe to be inherently wrong, we prohibit it. For thousands of years we’ve prohibited intentional killing of another human being, except where it is the only feasible way to protect innocent human life, as in self-defence. Euthanasia crosses that clear line — that we must not intentionally kill — and, once crossed, there is no obvious stopping point, as both the Netherlands and Belgium so manifestly show us. As Margaret Wente’s recent article, “Assisted suicide – what could go wrong?” (The Globe and Mail , February 20, 2014), documents, contrary to the Globe’s editors’ assurance that all is well in those jurisdictions, neither the logical slippery slope – the extension of euthanasia to a much wider range of people than were initially included – nor the practical slippery slope – the abuse of euthanasia and its use outside the legal requirements – have been avoided. In short, once introduced, euthanasia cannot be controlled, despite the best of intentions to do so. And those most at risk are vulnerable people — people with disabilities, and those who are old and fragile, including those with dementia.

Moreover, even before Bill 52 becomes law, its extension is being raised. For instance, just this week, Dr. Yves Robert of the Quebec College of Physicians and Surgeons, which has strongly supported the Bill, is reported as saying its extension to children will need to be considered. In the future, might its application to people with dementia also be contemplated? The reasoning in the two cases for doing so is the same: If mentally competent people can have their suffering relieved through euthanasia, it’s wrong not to offer the same benefit to mentally incompetent people.

It is legally wrong to say euthanasia is “a medical and not a criminal matter.” It’s a criminal matter because, under the Criminal Code, it is first degree murder – the physician has an intention to cause death and does so through a “planned and deliberate” act. The penalty for that is life imprisonment, not “14 years in prison,” as the editorial states. (The latter is the penalty for assisting in a suicide, but it is unclear whether Bill 52 contemplates allowing that.) Bill 52’s emphasis on euthanasia being ‘a medical act’ is the Quebec government’s attempt to claim jurisdiction to legislate on euthanasia.

I believe that history will view the current euthanasia debate as having been the most important values debate of 21st century. Whatever its outcome, it will be seen, in retrospect, as a critical point in determining the shared values handed on to future generations to become the values upon which they will base their Canadian society. The euthanasia debate focuses attention on the importance to humanity of putting into practice the belief that all human life has dignity and deserves respect and protection. What that belief requires we must either not do or do is where the pro-euthanasia and anti-euthanasia adherents disagree.

Margaret Somerville is professor of law and founding director of the Center for Medicine, Ethics, and Law at McGillUniversity.

A much shorter version of the foregoing comment appeared as a letter to the editor in the February 24, 2014 edition of The Globe and Mail. It appears in Artsforum with the permission of its author.

*********************************************************

Harper in Peru: What the Media Failed to Report

PM committed Canadian tax dollars to aid conflict-ridden mining opposed by locals.

CUSCO, PERU — Canada’s press corps was so focused on the Duffy corruption scandal during Stephen Harper’s recent trip to South America that no one bothered to challenge our fearless leader’s new “foreign aid” program to help Canadian mining companies get richer in countries where mining has led to major human rights violations. Don’t get me wrong: Harper needs to be grilled, fried and publicly boiled over the Duffy issue. But at least one of the intrepid reporters who followed Harper down to Peru might have questioned what he was doing there. It was the first ever visit by a standing Canadian PM to this once-ignored South American nation, and Harper certainly didn’t come to polish-up on his salsa.

Peru’s wealth of mineral resources and lax environmental and social standards have attracted a small army of Canadian mining companies to the country, including many Vancouver-based firms. Twenty years ago, Peru was an investment wasteland, racked with hyper-inflation and a civil war with leftist guerrillas. Now, it’s become Canada’s second largest trading partner in Latin America and the Caribbean. Last year, Canadian direct investment in Peru was $6.9 billion, most of this in mining, oil and gas. It’s no wonder that Harper was given royal treatment when he arrived in Lima last Wednesday [May 22, 2013]. He strode up the red carpet and greeted Peru’s President Ollanta Humala with an awkward handshake, his pot-belly almost reaching Humala’s shoulders, as a military band groaned out a few bars of “Oh Canada.” After schmoozing with Humala and mining executives, he flew off to Cali to attend a meeting of the Pacific Alliance, formed by Peru and its right-wing buddies: Mexico, Chile, and Colombia. Alliance leaders and their new friend, Stephen Harper, sang the praises of democracy, social inclusion and environmental protection and patted each other on the back for promoting socially responsible capitalism.

No one wanted to ruin the smiling group photos by mentioning the 15 civilians who have been killed during protests with Peruvian police forces since President Humala took power nearly two years ago, the majority in conflicts related to oil, mining and gas projects. Nor did anyone mention the married couple in Chihuahua, Mexico, who opposed a mine being developed by Vancouver’s MAG Silver and were gunned down by unknown assailants last year. Or the ongoing environmental violations at Barrick Gold’s Pascua Lama mine in Chile, and threats against community leaders standing up to paramilitary groups in Colombia.

Millions from Canadians to promote mining

If Harper was really concerned with promoting development among the Pacific Alliance countries, he could have used his visit to pressure member nations about human rights violations connected to the extractive industries. (Better yet, his government could support initiatives back home to make Canadian companies accountable for their actions overseas). Instead, he chose to award the Peruvian government, one of the region’s worst human rights violators, with a $53 million aid package. The catch is that the funds must be used to promote development projects linked to mining and education (like sending Peruvians to UBC’s new Institute for Extractive Industries and Development so they can learn to work at Canadian-owned mines?) Underneath the rhetoric, Harper’s “aid” is directed at helping Canadian mining corporations get richer with Canadian taxpayers picking up the tab.

In case you believe the government’s doublespeak about ‘mining leading to development,’ take a look at the evidence. Peru’s economic policy has been focused on mining as the motor of development for the past 20 years, turning the country into the darling of the World Bank and IMF. On paper, the math looks spectacular: in 10 years Peru’s economy almost doubled in size and last year’s growth rate of 6.3 per cent makes it one of fastest growing countries in the region. The wealth hasn’t reached Peru’s mining communities, however, which remain among the country’s poorest areas. In rural zones, where most of the country’s mining projects are found, 53 per cent of the population still lives in poverty. Mining communities say the promised benefits have failed to trickle down and they’re left with contamination, labor unrest and social decay. And they’re responding in protest with strikes, blockades of mining installations and community referendums. There are currently 229 social conflicts in Peru and over half of these are related to mining, oil and gas projects, according to Peru’s government Ombudsman’s office. Canadian companies have distinguished themselves as leaders in this new and growing field of social conflict.

Nearly unanimous community opposition

“Many of Peru’s historic and current mining conflicts are related to Canadian companies,” says Jose de Echave, who served as vice-minister of the Environment during President Humala’s first cabinet. One of the most recent involves Vancouver-based Candente Copper, which hopes to build a copper mine in one of northern Peru’s fragile tropical forests. Leaders from the nearby indigenous community of Cañaris say the proposed mine would destroy their source of water and livelihood. Last year the community held a referendum in which 95 per cent voted against the mine, but the company has ignored the results and is pushing ahead with the project.

Peruvian law requires the government to consult indigenous communities before giving out concessions on their land, but human rights groups have criticized loopholes in the regulations. Most notably, the law isn’t binding, meaning the government must consult the community, and is then free to go ahead and do what it wants. In the case of Cañaris, Peru’s government is also trying to deny the community’s “indigenous” status, despite the fact that Cañaris holds official government certification as an indigenous community. Violence broke out this past January when a peaceful demonstration against the mine was attacked by Peruvian police who fired on about 400 Quechua-speaking farmers and used tear gas to disperse the crowd. Peru’s La Republica newspaper reported that at least 25 people were injured, four of them with serious wounds from gunshots and rubber bullets. A dialogue process was set-up to resolve the dispute, made-up of representatives from the company, Peruvian government and local communities. However, at the most recent dialogue meeting in April, representatives from Cañaris say they were not allowed to participate and were “thrown out of our own house.”

In Peru’s southern Andes, another conflict is brewing at the country’s first uranium project, owned by Macusani Yellowcake, a small Toronto-based company. The proposed mine was given the go-ahead last month despite criticisms that Peru has no regulations to govern radio-active material like uranium. “The government is treating the project as though it were an ordinary mine, without any special provisions regarding uranium mining” says Jose de Echave, adding, “And the local community is completely unaware of the possible impacts.”

Civil strife hotspots

Despite the company’s glowing assertion on its web page that the area has “superb infrastructure” including “roads, power, water, etc.,” Macusani is one of the country’s most forgotten areas. Most roads are unpaved, bumpy affairs that twist and curve around sheer mountain cliffs, electricity is intermittent and water is a scarce resource. Sounds like a perfect scenario for transporting a radio-active substance like uranium. The project is located in Peru’s windswept department of Puno, where Quechua-speaking farmers dedicated to herding llamas and cultivating potatoes still eke out a subsistence livelihood. Macusani is stunningly beautiful, with pristine mountain lakes, open skies and tall, waving ichu, the tough grass that manages to survive here, at over 4,300 meters above sea level. Residents are understandably concerned about the possible health effects from the mine. Although some community leaders have signed agreements with the company, the provincial ‘Ronderos’, the farmer’s self-defense organization, has called for a referendum on the mine. There’s also a simmering conflict at Barrick’s Lagunas Norte gold mine, in northern Peru, and the list of Canuck-inspired civil strife goes on and on.

But why should the Canadian public care about protests and wounded and contamination in remote farming villages at the other end of the Americas? Even if you don’t feel it’s our responsibility as global citizens to monitor the behaviour of Canadian corporations overseas, here’s the new rub: every Canadian taxpayer is now financing the human rights abuses of our mining companies in foreign countries. The conservative government has turned Canada’s International Development Agency into the public relations wing of the mining industry, with the prime minister himself as head PR wonk. The blood is literally on our hands.

Stephanie Boyd is a Canadian journalist and documentary filmmaker who has been living and working in Peru for the past 16 years. Her films have been shown on television and at festivals around the world and won over 20 awards. “The Devil Operation” her latest film, chronicles a spy operation against activists and farming leaders linked to South America‘s largest gold mine. To learn more, visit: www.guarango.org/diablo

The foregoing article appears in Artsforum with the permission of its author. It was originally published, on May 30, 2013, in The Tyee, an independent daily online magazine based in British Columbia: “We’re independent and not owned by any big corporation. We’re dedicated to publishing lively, informative news and views, not dumbed down fluff. We, like the tyee salmon for which we are named, roam free and go where we wish.” Visit The Tyee at: http://thetyee.ca/

**********************************************************

The “Under 40” Crowd and the Democratic Deficit

Who are these “under 40s” and what do they do to our democratic system? They are the 39.6% of voters who elected a majority Conservative government in 2011. There is nothing wrong with them voting as they want to, of course. But to get a majority government that acts as if it had 90% of the vote? Then there are the 36.9% of voters in Calgary Centre, who elected a Conservative MP in a by-election in 2012, thanks to vote splitting by the over 60% crowd. The under 40-percenters are holding sway thanks to our antiquated first-past-the-post electoral system. But there is a practical alternative, one recommended by the Law Commission of Canada in its 2004 report, “Voting Counts: Electoral Reform for Canada.” This is proportional representation (PR), and, specifically (since there are numerous forms of it), the “mixed member proportional” (MMP) version.

MMP is in place in a number of countries, such as Scotland, Germany, and New Zealand. The Law Commission of Canada’s proposal is a typically Canadian compromise — to keep two thirds of M.P.s elected by the familiar first-past-the-post system, so that people will continue to have an M.P. they consider their own. On the same ballot paper, there would also be a list by party; so, we would vote twice. From this list the other third of M.P.s would be elected, keeping the total number of M.P.s the same, while increasing riding size by one third — not an inordinate change.

The “list M.P.s” allow for parties that are under-represented by first-past-the-post to boost their numbers, so that the total share of MPs by party would be about the same as their popular vote. Everyone’s vote would be worth the same. In Scotland, the list share is 43%, in Germany 50%, and New Zealand 42%. The system works well. How to get there? The problem is that parties in power, like the Conservatives, which benefit from first-past-the-post, do not want change. Since becoming a “third party” the Liberals have officially adopted “alternative voting” as their chosen reform, but it is not proportional. (A petition in favour of PR is in circulation within the Liberal Party, and one leadership candidate, Joyce Murray, M.P., supports it.) The NDP, which has typically been disadvantaged by the current system, adopted PR, but is not actively pursuing it. It did well, exceptionally, in 2011 with first-past-the-post. The Greens support PR.

Clearly PR will not happen without a change in government. The “Canadian Electoral Alliance” proposes an electoral alliance for the next federal election, scheduled for 2015. That is, it urges all the non-government parties to agree to target the most vulnerable Conservative ridings, say the 50 won with the narrowest margin, and run a common candidate. This is complicated by the fact that riding boundaries will be different in 2015, but it is possible to redistribute previous votes by the new boundaries to identify the best ridings to target.

An electoral alliance is not a merger. It is intended to be a one-election measure, after which a new Parliament, perhaps a minority or coalition government, would bring in PR. It is essential that PR become operational for the next election after that, or the whole idea could be lost. With an effective PR system, such as MMP, strategic voting would no longer be necessary: everybody could vote as they wished, and each party would get its fair share of the seats.

The cost of maintaining our present voting system is not just abstract unfairness. Rather we routinely see laws enacted and our tax dollars spent contrary to the values and concerns of the 60% majority. A government truly representing that 60% would:

• bring in a comprehensive climate action strategy;

• maintain and enhance environmental protection measures;

• end fossil fuel and nuclear subsidies;

• stop promoting pipelines for tar sands bitumen;

• restore funding for home improvements for energy efficiency

• adopt a national child care plan;

• end child poverty;

• bring in fairer taxes;

• adopt tougher gun controls;

• stop the prison building program;

• repeal the new minimum prison sentences;

• abandon the $35 billion purchase of fighter bombers;

• implement proposals of the royal commission on First Nations; and

• possibly decriminalize cannabis possession?

Procedurally, it could adopt reforms to promote cross-party cooperation in the House of Commons — in committees and private members’ business. It could also go on to Senate abolition or reform — although neither is a matter to be dealt with quickly.

The first step must be fair representation. That solved, we will be able to address the other faults of our democratic system. This is not mere wishful thinking, for the many PR systems in operation in the world have shown that they work better. Countries with them have: a higher voter turn-out; greater citizen confidence in their democratic institutions; and, they elect more women and minorities, enact better environmental protection laws, and achieve more efficient energy use.

These are all policies which a majority of Canadians favour. Let’s get on with it!

Lynn McDonald is a professor emerita at the University of Guelph and an active environmentalist; she is co-founder of “JustEarth: A Coalition for Environmental Justice;” and she serves on the board of directors of “Climate Action Network.” She is a former NDP Member of Parliament and a former president of the National Action Committee on the Status of Women.

For more on the proposal for electoral cooperation between Canada’s progressive parties, visit: {URL removed temporarily because it appeared to be ‘infected’}

************************************************************

For Want of Responsible Government

In 1653, Oliver Cromwell bid his followers to, “Take away that fool’s bauble, the mace.” The mace to which he referred was the ceremonial mace that represented the authority of the English Parliament. But the so-called Rump Parliament that earned Cromwell’s scorn was not governing responsibly, or well. 359 years later, much the same can be said about too many of the governments of our own day. Take the national Parliament and provincial Legislative Assemblies of Canada, for example. Too often, they seem to be ignoring the vital interests of this nation in pursuit of short-term economic gain. Environmental concerns are dismissed in favor of oil pipelines irresponsibly touted for ecologically sensitive areas, and the wide scale devastation caused by the Tar Sands is overlooked in favor of the jobs and money it generates. Instead of rejecting out of hand the bid of a state-owned company — a company which is controlled by a one-party dictatorship that is implacably hostile to our most fundamental principles (‘little things’ like liberty, democracy, and inalienable human rights) — to acquire an important interest in Canada’s energy sector, our leaders prefer to curry favor with the tyrants of Beijing.

And, now, our feckless leaders dismiss the clear and present danger of cyber-espionage and covert data stealing posed by the Chinese telecom giants Huawei and ZTE, in the shortsighted name (again) of investment and trade. In October 2012, the U.S. House Intelligence Committee found that Huawei and ZTE pose grave risks to the national security of the United States and its allies. The U.S. and Australia have already banned Huawei from involvement in major contracts. Banning Chinese telecom firms from owning or investing in telecom networks on these shores should be next, as should an outright ban on the use of any components manufactured by them. The U.S. House Intelligence Committee has turned over allegations of bribery and corruption involving the Chinese telecom giants to the FBI for criminal investigation. And, north of the border, a former Nortel network security expert has alleged that a key factor leading to the collapse of that major Canadian telecom company was the wholesale theft of its intellectual property by Chinese competitors who infiltrated its supposedly secure network.

So, how do governments in Canada react? Why, by dismissing U.S. concerns and soft-pedaling the glaringly obvious security threat posed by China. Huawei already has deals with such Canadian counterparts as Bell, Telus, Sasktel, and Wind Mobile. Indeed, the Premiers of Ontario and Saskatchewan wooed Huawei here — in Ontario’s case, with $6.5 million in taxpayers’ money. And now Huawei — which was founded in 1987 by a high-tech expert from China’s People’s Liberation Army, a force for oppression and tyranny if ever one there was — is bidding to build a new so-called “secure network” for Canada’s federal government. Secure? In a proverbial pig’s eye! Yet, we have the likes of Prime Minister Stephen Harper and Ontario Premier Dalton McGuinty defending the infiltration of our telecom industry — a sector of our economy that is of vital importance to our national security — by a hostile power.

A Canadian naval officer recently pleaded guilty to betraying his country by selling secrets to Russia. What of our elected officials trading our national security and national sovereignty to a tyranny that’s as inimical to our values as it happens to be rich? Such governance — our governance — is not “responsible.” It is not responsible in the sense of being truly accountable to its citizens, thanks to a first-past-the-post electoral system that routinely delivers results that do not reflect popular will, and thanks also to the pervasive disingenuousness of political platforms and election promises. Nor is it responsible in the sense of being in the long term best interests of this country. It’s enough to make us exclaim, as Cromwell did to the irresponsible Parliament of his day, “You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go!”

John Arkelian is a lawyer and an international relations analyst. He represented Canada as a diplomat in London and Prague.

***************************************************

War Cry

Early morning on Friday, July 13, 2012 gave rise to another sweltering day, but it was beyond chilly inside Scarborough’s Don Montgomery Arena. While my husband drove the big ‘Zamboni,’ preparing the ice, I helped our cousin, Paul, and his two sons, James and Alexander, lace up their skates. This was a thrilling adventure for the boys, their first opportunity to take to the ice and try to stay upright on the precarious surface beneath their feet; also their last chance to spend precious moments with their father before embarking, that evening, on the 24-hour trip back to their home in Zimbabwe. The boys would return to the Harare International School in the capital, while their father, Dr. Paul Thistle and their mother, Pedrinah, continued their journey to HowardHospital, in rural Chiwese province, some 80 kilometers to the southeast. After their skate, as we hugged and waved good-bye to father and sons, and wished them a safe journey home, we had no idea that Friday the 13^th would indeed be the harbinger of bad things to come.

Back in Zimbabwe, life for Paul and Pedrinah continued as usual, working 70 hours plus a week, and looking forward to weekends, when their sons, who board with their uncle in Harare during the week, would be home. But all that changed on August 4^th when Paul received the news that would alter his life. A letter from Salvation Army International Headquarters in London, England informed Paul that his time at Howard Hospital was over and that he was being re-assigned to Canada effective September lst. The reason for his removal? When his nursing staff had not been paid, long-held suspicions found their voice. Paul had committed the ultimate sin, challenging the local church authorities to explain what had happened to all of the donations from Canadian supporters.

The first inkling of this situation came to us in an e-mail from Paul announcing his profound shock and disappointment at having to leave his life’s work and return to Canada. He would not, however, go gentle into the good night because what followed was a mass protest by his staff and locals, ending with the arrest of eight of his nurses and a dozen others, charged with “inciting violence.” The nurses were released after being questioned by local authorities, and Paul retreated to Harare, vowing to remain in the country pending their trial, scheduled for September 24^th.

It could rightly be said that Howard Hospital, a Salvation Army facility, operates on a wing and a prayer—its main support being donations garnered through the hard work and generosity of Canadian donors like the Rotary Club in Whitby, the Stephen Lewis Foundation and the fund-raising efforts of private citizens in Peterborough, Ontario. As Chief Medical Director, Paul was responsible for providing care to a population of 270,000 people within the region. He is a University of Toronto graduate, a specialist in Obstetrics/Gynecology, focused on maternal, newborn and child care; but during his 16 years at Howard he has come face to face with every type of medical and moral challenge. A man of deep faith, who was born and raised in Scarborough in the traditions of the Salvation Army, Paul’s work is a natural fit. To the people of Chiwese district, he is not only their healer, but their father-confessor, their spiritual guide and the spark of hope for a better life. His wife, Pedrinah, born and raised in Zimbabwe, is a gold-medalist in nursing and midwifery, who was responsible for training the hospital’s nurses and assistants. With their total immersion in the well-being of the local community and their unwavering faith, Paul and Pedrinah elected to make it official by becoming Salvation Army officers a few years ago.

Paul’s annual six-week furlough to Canada should have been a well-earned rest. Instead, he spent that time recruiting funding from Canadian donors to keep the hospital afloat, including a $30,000 yearly contribution from Peterborough. The Army has contributed little, except paying for the shipment of containers stocked with medicine and supplies from Canadian sources. Years ago, a Salvation Army donor reportedly left millions of dollars to build a new hospital right beside the old one, but after wiring, plumbing and painting were completed, the money ran out. The new hospital, whose construction began years ago, stands empty. Such was the level of neglect and decay that in 2006, Zimbabwean authorities declared it unfit for use. This year, $50,000 raised in Peterborough, Ontario offered hope for the new hospital’s completion, with about half of the money earmarked to build a facility that would house visiting health professional volunteers. That money has disappeared. Approximately $18,000 worth of building materials, sitting on the grounds waiting for construction to begin, has been looted. Two volunteer anesthetists from Norway, Doctors Marit Kalvo and Annlaug Teigene, who have worked at Howard Hospital since 2002, have alleged that they “witnessed the administrators and other S.A. officers stealing from the hospital.” The United Church of Canada, another generous supporter, has asked for the money they contributed for the running of the hospital to be returned.

The consequences of Paul’s dismissal have spread far beyond disrupting his career and family, exposing massive flaws in the Salvation Army’s operation, but the greatest loss is to the patients of Howard Hospital. Dr. Thistle is the only obstetrician/gynecologist and one of two general surgeons in Chiwese, a province of one million people. Now there is only one, but he is in Harare, which might as well be the Moon to people who can barely make it to Howard Hospital. With 300 patients a day passing through its doors and 2,500 births per year, plus those receiving HIV/AIDS treatment on a continuing basis, Dr. Thistle’s removal has put the entire welfare of the province in jeopardy. The two doctors who remain at the hospital treat patients on an out-patient basis and are not surgeons. As well as obstetrics and gynecology, Paul has extra training in general, oncology and urology surgery. On average, Howard Hospital performed 10 to 15 operations each day. Many of them are complex surgeries that require a level of skill and experience that only a surgeon of Dr. Thistle’s calibre could perform. His absence has left the people of Chiwese devoid of the only qualified health care and life-saving procedures they could count on for the past 16 years.

Paul was the doctor who, in 2005, with the most rudimentary ultrasound equipment, identified conjoined twins in their mother’s womb and weeks later, successfully delivered them. Following an appeal to the Herbie Fund, he mobilized funds to have them sent for evaluation and life-saving surgery at the Hospital for Sick Children in Toronto, where the twins were successfully separated. Seven years later, Tinotenda and Tinashe are thriving, healthy boys who able to enjoy soccer and field hockey with all their young friends, including Paul’s own two sons.

Although Howard Hospital has garnered worldwide recognition for exceptional care, the head of the Salvation Army in Zimbabwe, Commissioner Vinece Cigariro, and the person Paul challenged, has threatened him with ex-communication if he refuses to comply with her directive. However, as Paul points out, Commissioner Cigariro has the authority to ask him to leave the premises and accept repatriation to Canada, but she has no authority to order him to leave the country. Nor has the Zimbabwean government, who outwardly praise and support Paul’s efforts, asked him to leave; although it is hard to gauge their commitment to health care given the trickle of funds—the $7,000 (or three cents per person per year)—they provide each year to Howard Hospital.

A prominent name in the Salvation Army’s Zimbabwean branch is Joice Mujuru, the Vice President of Zimbabwe and a possible successor to Robert Mugabe, that country’s autocratic President. She also happens to be a captain in the Salvation Army. Mujuru lives on a 3,500 acre farm south of Harare, which the Zimbabwe Supreme Court found to be illegally seized from the farm’s owner. According to the BBC, Mujuru was purported to be implicated in a scheme to sell gold from the Democratic Republic of Congo to a European company, contravening European Union sanctions. She and her late husband are among the wealthiest and most powerful people in Zimbabwe with extensive interests in mining. According to BBC News, she is one of 200 Zimbabweans hit with European Union sanctions, accusing them of human rights abuses.

Then there is General Linda Bond, head of the entire Salvation Army, with headquarters in London, England, who issued the letter advising Paul of his removal and who continues to foster the lie that his “re-assignment” is all part and parcel of normal procedure within Salvation Army ranks. Allan Bacon, the 75-year-old former Director of Overseas Development for the Salvation Army Canada and Bermuda Territories begs to differ, stating in a letter to International Headquarters, that Dr. Thistle’s “re-assignment” is far from normal procedure, particularly in the case of medical personnel, because the Army has no one to replace them. In a scathing indictment of church leaders, Retired Officer Bacon says there has been a complete abrogation of leadership and that he is so disgusted with his church that he can’t bear to wear his uniform.

E-mails sent to the Army’s International Headquarters protesting Dr. Thistle’s removal are not dealt with in London, but automatically re-directed to the Army’s Canadian territorial headquarters. Comments posted on their website confirm unwavering support for Dr. Thistle and condemnation for the Army’s handling of this matter. General Bond, a Canadian who rose through the ranks to become head of the Salvation Army, declares that “systems of internal and external audit are in place and that a team under her direction will be heading to Howard Hospital as soon as possible to review and analyze the situation further,” but this investigation (if indeed there is one) should have happened as soon as Paul raised concerns, not after he was summarily dismissed. The Army’s official press release states that their first priority is to welcome the Thistles back to Canada. Nowhere does it mention where the money went, nor what they intend to do about getting it back.

Despite several attempts to force him onto a plane, Paul has refused to go. Although he left the hospital grounds within 24 hours of his dismissal, he remains with family in Harare. As he told his mother, he will not leave Zimbabwe until he knows the fate of his nurses and the Army provides answers to the other vital questions: where is the money raised in Canada and where does the Army intend to place him? Until he has solid answers about his own future and the fate of his nurses, he stands resolute in his beliefs, determined to help and support the people of this land he has grown to love.

Reports of corruption and missing funds are all too familiar in places like Africa, especially in dictatorships run by despots, but we expect religious and charitable organizations to live up to their principles and deal with the offenders instead of hiding behind their Red Shield. In their shameful handling of this disgraceful affair, the Salvation Army has made a huge mistake, tarnishing its good name and jeopardizing future fund raising. All of the hierarchy of this organization who failed to stand up for Dr. Paul and Captain Pedrinah Thistle need to give their heads a firm moral shake and hang up their uniforms.

Tina Ivany is a writer and regular contributor to Artsforum Magazine, who enjoys battling absurdity brandishing the sword of words.

Author’s note: Source files for this article include: BBC World News; CBC News World; The National Post, The Peterborough Examiner; The Salvation Army’s Canada and Bermuda Territory website; The Times (Zimbabwe Edition); and The Zimbabwean.

*************************************************

The Naked Judge: Why Lori Douglas is not a Victim

Most people would rather have a root canal than be caught up in a court proceeding. Courts and judges are mysterious, scary, and expensive. But imagine appearing before a judge whose photos on the internet, according to reports, depict her nude, with her legs wide open, performing fellatio on a man, urinating on her lawn, or tied up with a dog collar and a chain around her neck. Yes, that would be Winnipeg’s Madam Justice Lori Douglas, and the scenes described are merely a few of the 150 poses captured by her lawyer husband, Jack King, and posted by him on the world wide web, for all to enjoy.

I have followed Lori Douglas’ public excoriation from the outset and can’t imagine how she expects to carry on as a judge, and why she did not resign in 2010 with some of her dignity intact. I say she is not fit to occupy a judicial position because her shameful situation, whether she is to blame or not, flies in the face of the ethical principles set out by the Canadian Judicial Council, the august body that investigates complaints from the public regarding judges.

Yes, I reject Judge Douglas’ claims that she is a victim. She is not. She has the education and sophistication of a worldly woman who knew when she applied for a judicial position that she would be held to a higher standard of conduct than the pole dancers at Winnipeg’s popular Teaser’s Burlesque Cabaret. She knew, or ought to have known, that where her personal life intruded on her judicial duties, any complaint about her situation could and would be investigated by her governing body, which has a statutory duty to investigate all complaints.

To the legions that have fallen for her lawyer’s suggestion that Judge Douglas is akin to a rape victim and are angry that her behavior is even being investigated, it should be said that the Council’s mandate compels them to act. The Council publishes guidelines for judges, including the admonition that judges are expected to behave in a manner that attracts no criticism to their office or diminishes public respect for a particular judge or for the judiciary in general. Judges must understand and accept restrictions on their activities, even if those activities would be acceptable for ‘Jane Doe.’ More importantly, a judge must disclose any matter that reflects upon the credibility and repute of the judiciary as a whole.

This is where Judge Douglas will face intense scrutiny. She apparently admits that when she applied for a position on the bench, she did not disclose the published pornographic images, her allegedly unwilling involvement in a website called “Dark Cavern,” or the sharing of cocktails with her husband’s client, the complainant, Alex Chapman. Her excuse? She says that everyone who needed to know already knew about the earlier scandal involving her, her husband, and Chapman. Admittedly, as a member of the bar when the events occurred, her only restraint was her personal moral values, which were her business alone. However, once she became a public officer with the immense power and authority flowing from her judicial office, she ought to have realized that she was obliged to make nothing less than full written disclosure, as required by the judicial application form she filled out. The question to which she apparently answered “no” was: “Is there anything in your past or present which could reflect negatively on yourself or the judiciary and which should be disclosed?” How is it possible that Judge Douglas did not consider that the events involving the publication of pornographic photos of her and the related fall-out involving her husband and Alex Chapman would not reflect negatively on her or the judiciary as a whole?

Lori Douglas is not, however, the only judge in Canada who has failed to disclose personal information on a judicial application. Most notably, Mr. Justice Richard Therrien of the Court of Quebec made several applications for the Quebec bench, divulging a criminal record and a year of imprisonment related to the FLQ crisis in Quebec in the early 1970’s. Therrien was a minor and a first year law student whose sister sheltered the terrorists who abducted Pierre Laporte.* He spent several days in his sister’s home running errands for the men who were later convicted of kidnapping. On the occasions when he answered the form truthfully, Therrien’s applications were denied as a result of his criminal conviction. In 1996 he reapplied; but, this time, he hid the events that occurred many years earlier and was finally appointed a Judge of the Court of Quebec. Shortly thereafter, the matter of his criminal record was discovered and an investigation was initiated which led to his removal from the bench. His “defence” was that he believed a pardon he received in 1987 did not require him to admit to a criminal record and he was certain that Quebec’s Minister of Justice would be aware of his history.

Judge Douglas’ “excuse” for non-disclosure sounds remarkably like former Judge Therrien’s. While the Judicial Council hearings are presently focused on whether she was an active participant in her husband’s seduction of Alex Chapman, her bigger problem is her deliberate decision to conceal a matter in her past that could reflect negatively on her or her judicial colleagues. I suspect she believed, like Richard Therrien, that her only chance for a prestigious judicial appointment was to pretend it never happened. After all, the easiest person to deceive is one’s own self.

Georgialee Lang is a Vancouver lawyer and former adjunct professor at UBC law school. She has spent 24 years as trial and appellate counsel, and she authors an award-winning blog at http://lawdiva.wordpress.com/

*Editor’s note: Pierre Laporte was a prominent cabinet minister in the Quebec government of Liberal Premier Robert Bourassa when he was kidnapped and murdered by the FLQ (the so-called ‘Front de Libération du Québec’) during the October Crisis of 1970.

******************************************************

When the ‘Cure’ Causes the Disease:
Zostavax Vaccine Can Cause the Very Disease (Shingles) it was Designed to Prevent

In January 2012, on the recommendation of her doctor, a healthy Canadian woman (let’s call her Jane Doe) was given an injection of Merck’s “Zostavax” vaccine as a prophylactic measure to prevent her from contracting shingles. (Shingles, or “zoster,” is a viral disease which attacks the nerve cells. It can occur later in life among some of those exposed to childhood chickenpox.) Instead of protecting her from acquiring that illness, however, the vaccine gave her the very malady it was intended to prevent. She contracted shingles from the vaccine and was immobilized with severe, painful symptoms for many weeks. Those facts were documented by the physicians who saw her and by the district public health unit.

Until Jane Doe was injected with Zostavax, she had never had shingles. Had she not been exposed to this seemingly faulty and dangerous product, she might have gone through life without ever contracting the illness. But Merck’s print advertising promoting Zostavax employs a scare-campaign to induce healthy individuals to use the product by using language like this: “excruciating is a word that can be used to describe shingles pain” “extremely painful and long-lasting,” “pain which can be debilitating,” “potentially serious complications,” ”you could be at risk,” “the risk increases,” “95% of Canadians… are at risk for shingles,” and “the long-term pain is called postherpetic neuralgia (PHN)… For many PHN sufferers, even the touch of soft clothing brushing against the skin can be excruciatingly painful.” Merck’s promotional materials certainly got the severity of shingles right. What they neglected to mention, however, is that Zostavax, by using live vaccine, can actually cause the disease in some individuals. Merck’s advertisements urge people to “protect yourself” by taking the Zostavax vaccine. Instead, the vaccine gave Jane Doe the very illness it was supposed to prevent. And, as Merck’s promotional materials state:

“Shingles pain can profoundly interfere with basic life activities such as dressing, bathing and housework, and lead to difficulty in sleeping, loss of appetite and even depression, all of which may reduce quality of life.”

Merck’s summary of the ruinous effects of shingles proved to be all too accurate for Jane Doe. She was subjected to severe, unrelenting pain that not even a prescription narcotic could quell. She is an active person, yet she was housebound for many weeks. In addition to said severe pain, red welts, and other symptoms, Jane Doe (who is right-handed) also lost nearly all use of her right hand for many weeks as a result of the Zostavax-induced shingles. It took many weeks for the shingles symptoms to begin to abate, and, over six months later, the symptoms have still not completely disappeared. All of that transpired because Jane Doe and her doctor trusted Merck’s seemingly flawed product.

A vaccine designed to prevent a serious illness ought not to give that same illness to the person receiving the vaccine! But that is precisely what happened to Jane Doe. If it happened to her, it seems likely that it has happened to others, also. How many of those vaccinated with Zostavax have contracted shingles from the vaccine is a mystery. If Merck and/or officials with the governments of Canada and Ontario know, they are not saying. Indeed, governments and private industry alike seem to be singing from the same songbook. Formal queries addressed to Cyril Schiever, President & Managing Director of Merck Canada; Leona Aglukkaq, M.P., Canada’s Minister of Health; and Deb Matthews, M.P.P., Ontario’s Minister of Health & Long-Term Care about Jane Doe’s case were all relegated to lower-ranking subordinates. In all three instances, replies were slow in coming; and, in the end, the drug’s manufacturer and both levels of government disinterestedly brushed aside the catastrophic effects of Zostavax on Jane Doe — without addressing the salient questions to which her case gave rise. None of the three took Jane Doe up on her offer of detailed notes about the symptoms she experienced as a consequence of her drug-induced illness.

What are the questions that need to be addressed? Well, simply these:

(1) How did the Zostavax vaccine cause the very illness it was intended to prevent? Was it a bad (or tainted) batch of vaccine? Should the vaccine only be given to persons who are known for certain to have had childhood chickenpox? If so, why don’t Merck’s promotional materials say so?

(2) How many other persons have contracted shingles through the Zostavax vaccine designed to prevent shingles?

(3) Should Zostavax be withdrawn from use pending much more rigorous studies of its potential hazards, given that it clearly poses a grave risk of severe illness to some subset of thepeople who receive it?

(4) Should government require that all publicity materials about Zostavax (whether such materials are intended for physicians or for consumers) be henceforth accompanied by strong warnings (and that does not mean hiding such warnings in micro-print) which clearly state that in some unknown number of cases, Merck’s drug can cause the very illness it is supposed to prevent?

(5) Should Merck be required to immediately consult with public health and safety officials in the federal and provincial governments about the apparent problem with Zostavax; and should Merck likewise to required to inform physicians in all jurisdictions where Zostavax is available that there is a danger of it causing some recipients to contract the illness it claims to prevent?

There are supposed to be safeguards in place to ensure that drugs are safe and that severe adverse effects of drugs are thoroughly investigated and promptly rectified. The general tone of apathy and inaction that greeted Jane Doe’s severely adverse experience with Zostavax puts in doubt the notion that either multinational pharmaceutical corporations or the governments we elect are adequately safeguarding the public interest in the area of drug safety.

*****************************************************

Whither the CBC —
Building a Nation through Public Broadcasting

For fifteen years, I was the host of CBC Toronto’s Metro Morning. But when I think about the CBC, I do so not first as a former employee, but as an immigrant, a not-so-new Canadian who can remember how important the CBC was in easing my way into a new land, a role that has never been more important than it is now.

I arrived in Canada in 1969, hoping to find work in broadcasting. After I’d lost out on one audition, I was told to come back when I didn’t sound so American. So I spent the next four months listening to the CBC, and taking notes. (It’s oot not out, say Newfoundland like “understand,” it’s Antigonish, not Anti-gonnish. And what is a riding?) I’d come from the U.S., so at least I had some cultural cues to fall back on. But, like most newbies, I wanted to become Canadian, and I relied most on the CBC to tell me how.

Today, more than ever, I am convinced that in the CBC, we have the only cultural and educational institution capable of teaching new arrivals (or for that matter, those of us long here) about our country. It is the one powerful conduit for the millions arriving here wanting to live and speak Canadian. That’s the job of our national broadcaster. Let’s get this straight: private broadcasters are in the business of selling listeners to advertisers, by whatever means necessary. Without public broadcasting, the job of giving voice to a nation just doesn’t get done. This is something every country in the developed world understands. All except one.

The fact that we share our continent with the only nation in the industrialized world that has neither a national public broadcaster nor universal health insurance leads us to compare ourselves, sometimes smugly, to our neighbors, rather than risk somewhat less flattering comparisons with the real world. So, as we compare the CBC to NPR [National Public Radio] and PBS [Public Broadcasting Service], it would be tempting to imagine the CBC is rolling in dough. But looking at eighteen OECD countries’ government spending on public broadcasting, we see, as expected, the U.S. at the very bottom, spending a miserable four bucks per capita (all figures 2009). Next to them, Canada’s $34 per capita seems absolutely munificent (and that’s before the latest round of cuts) – until you compare it to some of our other OECD partners.

Compare Canada’s spending to Japan’s $62 per capita, France’s $78, Finland’s $107, Denmark’s $136, all the way up to the Norwegians, at $164 per capita. None of these nations share a border with a country that speaks the same language. It’s not like little Norway, spending more than four times what we do per capita, is worried about a neighbour swamping them with Norwegian-language programming. Yet the Norwegians have six public radio services and four public television channels. (One of their stations does nothing but translate another into sign language!) The BBC recently fought a big battle over whether it could afford a seventh radio service. The other six, each serving different domestic audiences, are considered untouchable. Meanwhile, living as we do next to the planet’s most dominant culture, our Radio One and Two stand a lonely guard for thee and me.

The United States alone saw broadcasting, from the very beginning, as a business. Everywhere else in the world, this new technology was seen as a tool for nation building, education and, yes, cultural uplift. To this I’d add the forging of a common denominator in an increasingly multicultural world. My experience at Metro Morning suggests a vast well of good feeling has replaced the xenophobia of years gone by; that we are truly curious about our differences. We don’t just tolerate those differences; we embrace them. Literally. The stunning rise in Canadian intermarriage – between cultures, religions and races – will create a generation of listeners who will expect and deserve a national broadcaster that can reflect this delicious diversity back to them and trumpet its success to the world.

I have no doubt that any real move to do away with the CBC would be met by an absolute uproar. But in the death of a thousand cuts, with the marginalization of any service, citizens find themselves depending less and less on what they used to take for granted, until one day, they greet its last gasp with indifference. Were that to happen to our national broadcaster, we would lose the only remaining institution in our country that embraces fully who and what we are, have been, and are becoming – in all of our delicious diversity. Neglecting the Mother Corp has always been a bi-partisan past-time. Jean Chretien’s Liberals won their first mandate with a Red Book promise of secure funding for the CBC. In power, the promise was forgotten. The last fifteen years have seen a forty per cent drop, in real dollars, in CBC’s funding. The Conservatives, like every government before them, thinks of the national broadcaster as their CBC. Wrong. It’s ours. And if we allow it to wither into nothing, we’ll lose the last coast-to-coast connection we have.

Like an adoptive parent who tells his child that she was chosen, I chose this country, as almost every one of us, or our ancestors, did. On their behalf, I hope our public broadcaster, as stewards of the constantly evolving Canadian fact, can broadcast the seeds of national engagement as widely as possible, and that they can take root in the lives of the millions yet to come.

Andy Barrie is one of Canada’s leading journalists and broadcasters; he served as host of CBC Radio’s highly-rated Metro Morning for fifteen years.

******************************************************

Pension Reform? Do as We Dictate, Not as We Do!

It might be understandable if a number of Canadians didn’t appreciate Prime Minister Stephen Harper talking recently about reforming public sector pensions and Old Age Security (OAS) social assistance payments. After all, nobody likes the idea of their retirement plans changing, whether it is by way of a downturn in the market or a change in a government policy. This is likely especially true recently, with Mr. Harper’s musings coming on the heels of two reports on MP pensions, one by the not-for-profit Canadian Taxpayers Federation and the other from the esteemed C.D. Howe Institute. What these reports made abundantly clear; Prime Minister Harper must reform MPs pensions first, if he has any hope of looking at anyone else’s.

Ultimately, Harper is quite right to tackle Canada’s demographic dilemma: The tsunami of aging baby boomers does indeed threaten to swamp the national safety net. A bit over $6,000 annually for OAS payments might not seem like a whole lot of money, but multiply it by 4.7 million retired Canadians, add in the guaranteed income supplement, spousal and widow allowances and survivor benefits, and you’re looking at $36 billion of taxpayer cash. By 2030, if something isn’t done, Old Age Security payments are expected to balloon from $36 billion to $108 billion – that’s quite a chunk of change when you consider that the entire federal budget is about $274 billion this year.

So how does the Prime Minister start tightening the tap on entitlements for the elderly, when taxpayers contributed $23.30 for every dollar put into the Parliamentary pension plan by MPs? Taxpayers paid $102.7 million last year, while MPs and Senators chipped in $4.4 million. How do you explain to someone scraping for their retirement that Canada can’t afford $508 a month for a 65-year-old, when defeated 60-year-old backbench MP Yasmin Ratansi got $2,758 a month after just seven years on the job? Or the defeated [separatist] Bloc Quebecois leader, 64-year-old Gilles Duceppe and his $11,730 monthly pension – the gift of a grateful nation for 21 years of devoted service. Even Mr. Harper himself is in line for an annual pension payout of $223,517 if he packs it in at the end of his current term. Of course, the PM will only be 55 years old by then, and presumably, capable of doing something else to make ends meet. But if Harper were to find himself, retired with no other means of support, $223,517 does buy a lot of cat food and kerosene to make it through a chilly Calgary winter. It’s a good thing – having studied piano rather than the guitar or the violin, the PM would face limited options as a street busker.

You can’t defend these payments. And smart politicians are not even trying. Since the Canadian Taxpayers Federation published its report on MP pensions, we’ve heard some promising news from both sides of the House of Commons. It started with the Prime Minister’s own words – Harper said in an interview that the issue of parliamentary pensions “will have to be looked at.” Then, Treasury Board President Tony Clement revealed that he was “tasked with putting some options forward” on MP pensions, saying the government needs “to be fair to the taxpayer.” “I think to have any legitimacy on that file, MPs are going to have to lead by example,” said Alberta Conservative MP Brent Rathgeber, displaying both political savvy and moral fortitude from the government side of the House. Green Party leader Elizabeth May said MP pensions should be reviewed “in order to bring them more into line with norms for other Canadians,” calling it “the fair thing to do.” NDP industry critic Guy Caron said his party is willing to look at proposals to bring the MP pension plan “more in conformity, more realistic in relation to the people they lead.” And Liberal MP Marc Garneau, the former astronaut, said the CTF report was a “fair observation” of the pension landscape.

Canadians have been phoning, writing, and emailing their politicians in huge numbers, letting them know how they feel about platinum-plated MP pensions. With the next federal budget coming soon, taxpayers need to turn up the heat, and make sure the pork-laden MP pension plan is put on the chopping block, front and centre, with a big carving knife close at hand for Mr. Harper. It’s the necessary first step in a long, but ultimately needed, process.

Gregory Thomas is Federal and Ontario Director of the Canadian Taxpayers Federation. You can visit that organization at http://taxpayer.com/

Editor’s Note: The unbridled, self-serving hypocrisy of far too many of those whom we elect to public office simply boggles the mind. The fact is that no elected officials — be they at the federal, provincial, or municipal levels of government — ought to have any authority over the terms and conditions of their own employment. Decisions about their remuneration, the reimbursement of certain expenses for official business (if it be genuine official business), pensions and other benefits, and much more stringent conflict of interest rules should be made by the electorate, through the mechanism of binding referenda appended to ballots in general elections. While we’re at it, the public-at-large should outlaw the misuse of government jets and helicopters for personal (or merely partisan) travel by MPs and other government officials, as well as the proclivity of too many in government to treat themselves to first-class transport, princely accommodations, and regal dining when traveling on actual official business. Frugality starts at home, though you would never know it from the shameless self-indulgence our supposed “representatives” engage in at our expense.

*****************************************************

“The Unbearable Lightness of Being Canadian During a National Election”

A thoughtful person, let alone a patriot, who endured Canada’s spring 2011 election might be forgiven for dismissing the assorted partisan contestants and the truly perverse result of May 2^nd with an angry, exasperated cry of, “A plague on all their houses!”

None of the parties bothered to address the glaring democratic deficit that threatens to further undermine public confidence in the institutions of government in this country. No one raised the longstanding trend of centralizing power in the hands of the Prime Minister and his minions at the PMO and Privy Council Office as an issue. That steady erosion of the division of power between the legislature and executive did not begin under Stephen Harper’s Conservative regime, but he has certainly accelerated it and has taken it further than it has ever gone before. Why did none of the parties vying for our votes raise that vital issue? And why did none of them offer iron-clad promises to reverse that insidious trend? Likewise, the opposition parties have criticized Harper for attacking the independence of various public ombudsmen and regulators, who are supposed to operate at arm’s length from the government of the day. But, none of them proposed measures to guarantee such independence — measures like making the hiring and firing of such governmental watch-dogs a matter for Parliament to decide, not subject to Prime Ministerial discretion. No one offered a tangible promise to initiate an experiment in ‘proportional representation,’ with a view to having the composition of Parliament more accurately reflect the wishes of the electorate. No one proposed abolishing the Senate and canceling the lifetime pensions to which its current and past incumbents (the lot of them unelected) are presently entitled. No one proposed abolishing the position of Governor General, despite the fact that the practice of having the Prime Minister appoint that ceremonial alternate for the monarch is archaic, undemocratic, and a pointless waste of money. There is no persuasive reason to separate the functions of ‘head of government’ and ‘head of state’ in this (or any other) country. No one suggested, let alone embraced, either of the two obvious measures that would redress the gross imbalance between elected parliamentarians (either federally or provincially) and their leaders. The first option would be to legally bar the obligation of legislators to vote along party lines when ordered to do so. The second option would be to leave the obligation to vote along party-dictated lines untouched but to dramatically alter the way that said party-line is established by enshrining in law a new parliamentary procedure, whereby the policy of a party in the legislature is mandated not by its leader but by the binding majority vote of its party’s caucus.

The opposition parties quite properly made a great deal of fuss over Harper’s serial misuse of the Prime Ministerial power to “prorogue” Parliament (that is, to adjourn or suspend the sitting of the legislature for a fixed period of time). Harper invoked prorogation in order first to avoid a non-confidence vote and subsequent attempt by a perfectly lawful coalition of opposition parties to try to form the government in his stead and later to close down committee hearings into his government’s negligence in ensuring the safety of Afghan detainees handed over by Canadian military forces in Afghanistan to the suspect care and control of our indigenous so-called ‘allies’ there. While perhaps technically ‘lawful,’ the fact is that using the power to prorogue for such suspect ends constitutes an egregious abuse of process. So, why did none of the parties promise to severely restrict, by law, the ability of any PM in future to prorogue Parliament at all?

No one suggested making judicial appointments subject to the approval of Parliament, after hearings, the way such appointments are handled in the United States, rather than leaving them to the PM’s unbridled discretion. No one suggested creating a “recall provision,” that would empower the electorate to recall any MP (or MPP) and subject them to a forced by-election. No one suggested using binding referenda for certain types of nation-altering issues, to ensure that citizens can make their own decisions about key issues (like the past issue of free trade) directly, and not through intermediaries (in the form of their elected representatives). No one advocated requiring the approval of Parliament for Canada’s involvement in wars or war-like actions abroad, rather than abdicating that role, as we now do, to the executive branch of government. No one advocated the creation of strong personal privacy legislation (to protect Canadians from intrusions by government and by the private sector, urgently including internet-based businesses); whistleblower protection legislation; or much more effective anti-combines legislation.

And how can one react, save with profound despair, at the abject failure of any of the parties to stand up for a strong national government and to unambiguously reject the twin siren calls of decentralization and Quebec secessionism that threaten to incrementally dismember Canada? Why will no one condemn separatism as the insular, parochial, retrograde concept it is? Defining nationality as ethno-linguistic conformity, that is, as a collective, rather than as the political union of individuals who are bound together by common principles like liberty, democratic governance, inalienable human rights, the rule of law, the separation of church and state, and respect for minorities is a practice and an idea that is alien to North America — and it should remain so. Why will no one among Canada’s political parties say so anymore? Why will none of them categorically reject the perniciously false proposition that the Canadian union is dissoluble, or that any of its constituent parts has a right (in theory or in practice) to detach itself from the whole? Canadians who prefer to live in another country are free to pack their bags and emigrate; they have no right to take any part of Canada’s real estate with them. Instead, federal politicians of all parties play games with separatists, lending their cause undeserved legitimacy by dubbing the least radical of them “Quebec nationalists,” and dubbing Quebec “a nation” within Canada without any authority from the Canadian electorate to do so. The fact is: There is only one nation north of the 49^th Parallel, and that nation, which stretches without interruption between the Atlantic, Pacific, and ArcticOceans, is called Canada. Why do none of the established parties state the obvious — that it was a dire, potentially fatal, mistake to ever allow the province of Quebec to assume the mantle of protector of the French language. That responsibility to protect linguistic rights — of English and French speaking Canadians, wherever they happen to reside in Canada— ought to be the exclusive reserve of the federal government. Instead, we had the spectacle in the 2011 federal leaders debates of Gilles Duceppe, the leader of the separatist Bloc Québecois Party (until his party was decimated and he himself lost his seat on May 2^nd), decrying the fact that certain federally-regulated workplaces were exempt from the provisions of “Bill 101,” the Quebec provincial legislation enacted in 1977 and grandiosely dubbed its “Charter of the French Language”) which mandated the use of French in Quebec and severely curtailed the rights of English-speaking Quebecers and new immigrants to that province. Parts of Bill 101 were ruled unconstitutional in 1988 by the Supreme Court of Canada, but provincial governments in Quebec since then (both the too often weakly federalist Liberals and the staunchly separatist Parti Québecois) have perpetuated the travesty that is Bill 101 by repeatedly invoking the “notwithstanding clause” (section 33) in Canada’s Charter of Rights and Freedoms that perversely allows governments to override our basic rights, should they expressly choose to do so by legislation. Each such invocation of the override provision expires after five years; but it has been invoked afresh (and thereby renewed) by Quebec governments of both stripes each time it expired. Party leaders at the 2011 federal debates sidestepped Duceppe’s cynical demand that the federal government should voluntarily accede to the jurisdiction of Bill 101 in federally regulated workplaces in Quebec; but none of them denounced Bill 101 as pernicious, incompatible with a nation of individuals governed equally under the law, and provincial in every insular sense of that word.

Canada is currently involved in active combat in one-and-a-half wars (in Afghanistan and Libya), without a clear and direct mandate from the Canadian people and without a full and frank public analysis of the costs and benefits of those wars to Canadians. Yet, none of the parties chose to make ‘war and peace’ an issue in the election. Just as bad, the once hotly debated issue of the criminally negligent treatment of Afghan prisoners, who were abused, tortured, or killed by the very people our soldiers handed them over to, was wholly absent from the election campaign.

There was a lack of serious discussion about the government’s contempt for Parliament, the finding of which was the ostensible catalyst for this election in the first place. Once the election was underway, there were only shrill accusations on one side, bored shrugs on the other. Yet the constellation of issues connected with the contempt ruling smacked of outright deceit by the same government that is supposed to be there to represent all of us. An MP appears to have lied about who cancelled support for an NGO (and why); leaked preliminary drafts of a report by the Auditor General suggest that the government deliberately misused funds appropriated in connection with 2010’s G-8 and G-20 meetings; and the government appears to have dissembled about the acquisition and maintenance costs of new fighter jets which they ordered at enormous cost without any competitive bidding process. Why were none of the parties promising, for example, to outlaw any and all‘untendered contracts’ in future?

As to the G-8/G-20 meeting held in summer 2010 in Ontario, it constituted an outrageous waste of taxpayers’ money (in the quantum of one billion dollars or more for a couple of days worth of meetings) — and it came with an even worse cost, in the deplorable violations of human rights in the country’s busiest city by the army of police officers who inexplicably failed to apprehend a few hooligans one day and made up for it the next by coming down on peaceful demonstrators like a proverbial ton of bricks! Where were the condemnations of those abuses — to the public purse and our fundamental rights — during the election campaign? Nowhere to be seen, alas.

Economically, Canada, like the United States is suffering the ruinous effects of deindustrialization, a dangerous erosion of our middle class, and the creeping intrusion of ideology into public life. Who is benefiting from so-called ‘free trade’ and its even more suspect cousin ‘globalization?’ Surely not the common man, judging by the growing disparity between rich and poor and the disproportionate influence in public policy decision-making of big business. But, who was raising those issues in the election? And our social safety net did not fare much better. Some of the opposition parties made an attempt to use threats to Canada’s public health care system to frighten voters late in the campaign. But no one offered a convincing denunciation of (let alone persuasive antidote to) the creep toward ever more privatization of the public health care system that is so cherished by Canadians.

Instead of daring to point out that official multiculturalism is a questionable idea whose ‘time’ (if ever there was one) is long past, we witnessed the sorry spectacle of candidates getting way too cozy with hyphenated-Canadians who are still fighting the ugly sectarian battles of their countries of origin. Indeed, some candidates (even party leaders have done so in recent years) took part in photo-opportunities with ethno-religious community figures who represent radical views and/or proudly celebrate acts of terrorism abroad! We should be encouraging newcomers to embrace Canadian identity, not cling to the language, ideology, and garb of other places — attributes that too often smack of sectarian strife, intolerance, and a mind-set straight out of the dark ages.

Shame on Stephen Harper for cynically ringing alarums about a potential coalition of opposition parties — as though there were anything legally or constitutionally improper about such a thing in a parliamentary system. (One need look no further than the United Kingdom or Germany to see examples of coalition governments in action.) Harper himself proposed what amounted to a coalition when it suited him a few short years ago, but that did not stop him from shamelessly spreading the ‘big lie’ that coalitions are somehow subversive. His active dishonesty about this clear-cut principle of democratic government in a parliamentary system was a cynical attempt to hoodwink the public; as such, it undermined the proper functioning of our democracy — and Harper’s own legitimacy.

For their part, the Liberals and NDP were quick to warn about the supposed danger of reelecting the Conservatives, but they conspicuously failed to do the one thing that might have averted that very outcome. They ought to have cooperated in certain ridings by selectively opting not to run against each in ridings where doing so would have the effect of canceling each other out and effectively handing that riding to the Conservatives. Such an arrangement, in certain select ridings, would not have amounted to an outright coalition (not that anything would be amiss if it did). Rather, it would have constituted targeted cooperation to achieve an objective they both insisted was important, namely, denying the Conservatives a majority of seats. One could call such a strategy “strategic candidacies,” after the better known, and less effective, strategy we know as “strategic voting.” By failing to do the obvious thing to forestall a Conservative victory, the opposition parties leave us with the unmistakable conclusion that they are naught but partisan blowhards who lack the courage of their loudly professed convictions.

Much that should have been on the table in the 2011 election was not. Canada is a much poorer country for it; and we have no one to blame but our petty politicians — and ourselves for tolerating them. We deserve better!

John Arkelian is an author, journalist, lawyer, and educator, who has represented Canada abroad as a diplomat. He was a candidate for Parliament in 1993 for the short-lived National Party of Canada.

***************************************************

Ontario’s Law Society in Need of Pervasive Reinvention

The Law Society of Upper Canada is a self-governing organization set up by provincial legislation to govern the conduct and competence of lawyers in Ontario. Like other professional regulatory bodies, it operates outside the ken of the general public. Alas, it is just as impenetrable to its own members – the roughly 47,000 lawyers in Ontario over whom it holds sway, whether they like it or not. Perhaps it’s time the Law Society gives more than perfunctory lip-service to its inapt motto, “Let Right Prevail.” Here’s how it could start.

The Need for the Law Society to Reinvent Itself

The face the Law Society projects to its members is one of unaccountable and undemocratic governance — the face of an organization that is too often impenetrable, heavy-handed, bureaucratic, curt (rather than courteous), and coldly unreceptive to input by its members. The Society ought to reinvent itself to present a more humane, collegial face.

A New, Broader Mandate

To start, the Society should request the provincial government to amend the Society’s mandate. In addition to protecting the public interest, the revised mandate should also direct the Society to protect the interests of both the legal profession and Law Society members. A paramountcy clause would stipulate that in the event of a conflict between those objectives, protection of the public interest would always take priority.

Making Benchers Accountable

The Society’s charter should also explicitly state that a key function of all Benchers [‘Benchers’ are elected members of the Law Society’s governing council, known as ‘Convocation’] is to serve as elected representatives of the Society’s members, accountable to them (perhaps through some kind of forced recall provision) and readily accessible to their concerns.

A Restored Right to Petition Convocation

At present, Society members are without any meaningful input into their own governance. Provision used to exist for any member to easily petition Convocation on issues of concern to that member. However, it appears that said “Petition to Convocation” procedure was quietly discontinued years ago, leaving members without any mechanism for getting a complaint, concern, request, or proposal before the body empowered to govern them. How is it compatible with democratic governance to leave members utterly bereft of any way to put a matter before their own governing body? Every member should have an absolute right to communicate any matter directly to Convocation, to thereby have Convocation seized of said matter, and to promptly have said matter deliberated upon and decided by Convocation.

Establishing External Accountability

The Society should welcome any and all measures to increase its transparency and accountability. For that reason, the Law Society should voluntarily submit itself, on a permanent basis, to the jurisdiction of both the Ontario Ombudsman and the Ontario Privacy Commissioner; and, its accession to the jurisdiction of those agencies should be entrenched in the Society’s charter.

Establishing an Internal Ombudsman

The Society should also create an internal Ombudsman to act as an advocate for members in their dealings with the Society.

Abandoning the Archaic Use of Full Christening Names

The Society should discontinue its practice of recording the names of members as they appear at christening and instead rely on members to provide, in good faith, the form of their names by which they are actually known. (A member’s common-use name, combined with their date and place of birth and unique membership number, is ample to distinguish one member from another.)

Reducing the Cost of Membership Fees and Malpractice Insurance Premiums

The cost of Society membership fees and malpractice insurance is excessive. Every function of the Society ought to be carefully scrutinized in an effort to reduce the size and cost of the Society’s bureaucracy. (For example, maybe the Society could utilize a collective management model and do without a CEO and Treasurer.) Also, at present, practices governing fees and malpractice insurance do not favor a member working part-time. Those practices should be amended to make it easy and affordable for members to work part-time.

New Term Limits for Benchers

In an effort to get more members involved in their own governance, a new term limit should restrict any member from serving as a Bencher for more than two terms over the course of their career.

Developing ‘Best Practices’ to Govern How the Society Bureaucracy Operates

The Society should undertake an intensive examination of its practices, with a view to developing “best practices” for the operation of the Society. That means ensuring that members are never treated as ‘guilty until proven innocent’ by the Society; according members and the public the most open and accommodating access to due process that human ingenuity can devise; and ensuring strict confidentiality (so a member can write in confidence to a Society staffer or officer and have that confidence respected).

Replacing Compulsory Practices with Optional Ones, Where Possible

The Society should avoid adopting compulsory “one size fits all” practices when it is possible instead to give members the freedom to choose the approach that suits them best — a case in point being the unnecessary imposition of mandatory “e-filing,” without regard to the well-founded qualms some members may have about the reliability and privacy of anything done online.

Separating Administrative Suspension Procedures and Disbarment Procedures

The existing bridge between ‘administrative suspension’ (for failing to file forms or pay fees on time, for instance) and ‘disbarment’ should be eliminated. Currently, members who are under administrative suspension can be automatically disbarred, without a separate process or hearing, if they remain under administrative suspension for a year or more. There should be no causal link between administrative suspension and disbarment. Disbarment should be a separate process — restricted to disciplinary offenses and resorted to only after a full and fair hearing. For its part, an administrative breach should result in no more than an open-ended suspension of a member’s license, a suspension that would remain in effect indefinitely — until the breach that activated it is resolved. There should, accordingly, be an impenetrable barrier between administrative breaches (and the suspension in which they can result) and disciplinary offenses (and the disbarment in which they can result).

Waiver of Fees for Retired and Otherwise Unemployed Members

Instead of paying annual membership fees set at 25% of the full fees, as is now the case, members who are retired and not working in any remunerated capacity and all members who are unemployed for any reason should be exempt from membership fees for as long as they remain unemployed.

Putting Policy Changes to Membership through Binding Referenda

In an effort to involve members in their own governance, Law Society policy changes that affect members should henceforth ordinarily be put to members in the form of referenda, the result of which should be binding on the Society.

Create Incentives to Encourage Continuing Education Rather Than Making it Compulsory

Continuing legal education (CLE) is a positive thing to encourage. But, instead of imposing ever stricter mandatory requirements (of a specific number of hours of officially-sanctioned programming), why not instead create meaningful incentives to encourage members to undertake, of their own volition, as much continuing legal as they can? Incentives like cumulative reductions in malpractice insurance premiums and membership fees could serve as a tangible benefit for the documented completion of CLE programs. Encouraging members to maintain their lifelong learning activities is better than coercing them. One thing the Society has done right recently is to offer an array of free CLE programs. Most other programs (offered by the Society or other providers) are onerously expensive for some members.

Modernizing the Society’s Terminology

Although it is a minor matter, why not consider replacing the archaic terminology currently employed by the Law Society through its use of titles like “Treasurer,” “Bencher,” and “Convocation,” with something more appropriate for the 21^st century — something like “Chairman,” “Representative,” and “Governing Council?” For that matter, members should be asked to consider whether they prefer “Ontario” to “Upper Canada” as part of the organization’s name.

Professional Mobility

Every member of the Bar of any province or territory in Canada should have an automatic right to transfer their membership to the Bar of any other province or territory (without any requalification) should they change actual residence from one part of Canada to another. To the extent that that is not already so, it should be a priority of the Society to make it so, in collaboration with its organizational counterparts across Canada.

The author is a lawyer and member of the Law Society of Upper Canada.

****************************************************

An Open Letter to the Citizens of Durham Region

The Incinerator Project: A Health, Environmental, and Fiscal Disaster in the Making

(I) Introduction

We should all be extremely concerned about the calamity about to be imposed on us by the promoters of waste incineration. As a scientist, I cannot find a single factual argument to justify such a technology. I am equally against the landfill option. But, with its obsession to incinerate waste, the Region has refused to consider more sustainable alternatives. It is beyond comprehension that incineration is being promoted, given the scientific evidence about its adverse health implications, including the incidence of cancers and respiratory illnesses. Moreover, incineration is not cheap, and this project will impose a heavy financial burden on Durham taxpayers, without any of the social benefits that could possibly warrant such a cost.

(II) Cancers in Proximity of Incinerators

Rigorous studies of the consequences of incineration all reach similar conclusions: incineration is toxic in more ways than one. Such dangers are increasingly being recognized in Europe; that is leading to a tightening of the legislated standards for incinerator emissions within the European Community. Health issues can be grouped along the following categories: respiratory, cell genetics, cerebral development, fetal and infant health, and human fertility. Let us limit the discussion to cell genetics, in particular to cancers that are induced by the emissions from an incinerator.

France has one of the highest numbers of incinerators in service in Europe. A 2008 report by the “Institut National de Veille Sanitaire” (INVS) reveals some frightening facts about the incidence of various types of cancers in populations residing in the proximity of incinerators. The study covered an extended exposure period (1970-80) and a large number of incinerators (sixteen), and it reflected a ten-year latency period (1980-90). Those facts give the findings, which consisted of 135,123 cancer cases being identified, statistical significance and reliability. The results show increases in cancer rates in the order of 20% for melanoma, sarcoma, liver, and non-Hodgkin cancers and 8% for breast cancers. However, the fact remains that 100% of the population is carrying internally toxic chemicals emanating from incineration. Halton Region rejected incineration on the basis of health considerations. Why should it be any more acceptable in Durham?

(III) Best Case vs. Worst Case Assumptions

The environmental impact analysis is predicated on the false assumption that all systems are always operating optimally. That assumption is utopian. In the real world, one designs systems for the worst conditions, not for the best. Proponents of incineration have taken the opposite approach; they attempt to justify incineration under the best-case scenario and ignore the worst, probably hoping that nobody will notice.

Because there are no redundancies whatsoever in the so-called “emission control system,” emission levels are going to be much higher than those used for the environmental assessment if that “emission control system” should ever fail. The design (and the debate) should recognize that both technology and people do fail. It ought to be predicated upon real operation in the real world, and that means planning for variables like system failure, system upset, system maintenance and outages, unanticipated design flaws (à la Quantas Airlines), operator overrides (à la Chernobyl), improper operator training (à la Bhopal), deferred maintenance (à la American Airlines), and so on.

(IV) Financial Implications

Incineration is a very expensive technology and we cannot ignore the on-going cost of operating such a facility, including the cost of burying the often toxic ashes in land-fill sites. Currently, the Region is reallocating federal monies intended for infrastructure renewals in order to give taxpayers the (false) impression that the cost of incineration will not result in tax increases. This, however, will result in a triple whammy: First, the services that such federal monies are intended to finance, such as improved transit, will not be provided. Second, when expenditures are required for neglected infrastructures, we will find that the monies that could have paid for them were previously diverted to the incinerator project. Third, taxes will have to be raised to finance the incinerator and maintain the Region’s credit rating. In the end, taxpayers will be on the hook financially, and we will all have to bear an escalating health care trauma.

(V) Conclusion

We cannot pay lip service to environmental and health protection, or fiscal responsibility, while simultaneously ignoring the adverse long-term implications of waste incineration. We are all the product of our environment. Devra Davis, Director of the Center for Environmental Oncology at the University of Pittsburgh (interviewed on CBC Radio’s “The Current” on December 17, 2007) put it this way: “There is no longer any debate that we have transformed and changed the nature of the environment in which we live and work and therefore affected our health.” By even considering incineration, this Region is making a very risky experiment with our health and well-being. It is literally “throwing the dice,” ignoring the very predictable long-term consequences of its actions. We should not be fooled into believing that stipulated safeguards will be met (let alone that they will be adequate in the first place) or that the facility will be rigorously monitored. It will be too late, 20 years down the road, or after a system failure, to take remedial actions.

*****************************************************

Regent Theater Blues —
An Encore Performance of Civic Shortsightedness

There they go again! Oshawa City Council has once again disposed of a key cultural asset, the Regent Theater, without taking the needs of the city’s accomplished cultural sector into the slightest account, or, indeed, even consulting with the performing and visual arts organizations that do so very much to enrich Durham Region. The lamentable fact is that the area’s not-for-profit symphony, choral groups, film societies, bands, artists, photographers, and most of its amateur theater groups have no proper venue in which to perform or exhibit their work. The absence of a Regional Center for the Performing and Visual Arts makes Durham Region almost unique among communities of any size in Ontario. And that’s a pretty dubious (not to mention acutely embarrassing) distinction. The City ought to have taken back the Regent Theater from its private owner months before it finally did so, as he had apparently been in blatant breach of his contractual obligations to the City for almost a year. But, transferring the property to UOIT has done nothing to provide the area’s performing and visual arts groups with the home they so desperately need. Why? Well, because UOIT wants to run the theater as a for-profit business, which will put it utterly beyond the financial means of most of the area’s indigenous cultural organizations as a potential venue. And, by erecting classrooms on the vacant north end of the property, UOIT’s partnership with an out-of-town investment corporation has crushed any hope of adding a spacious new wing to the theater to accommodate the many additional facilities (like backstage space, rehearsal space, lounge space, and one or more smaller amphitheaters, to name but a few) that the Regent Theater requires if it is to be an arts center. Such added facilities cannot be accommodated in the existing building, and the new deal with UOIT has effectively ruled out the possibility of their ever being added on the till-then vacant north side of the property. The City ought to have placed the Regent in the hands of a brand-new charitable foundation created with the sole mandate of owning and operating the Regent Theater in perpetuity as a not-for-profit Arts Center – in the public interest and at arm’s length from city government. Failing that, why didn’t the City simply sell the property on the open market, let a new purchaser tear down the building, and designate all of the proceeds from the sale (the property has an appraised commercial value of $2.326 million, after all) toward the construction of a brand-new Arts Center facility — at Lakeview Park or elsewhere? Instead, the City has once again utterly ignored the longstanding, pressing needs of the area’s cultural sector. It is nothing but another squalid triumph for shortsightedness.

*****************************************************

artsforum.ca

Upcoming Events

Editor’s Notebook

Regional Perspectives

The Trump Threat to America’s Legal Order

The Trump Decision Reveals Deep Rot in the System

The Death of Good Sense, Part 3

Still More Compelling Reasons to Conclude that Good Sense is Dead

Stranger Than Fiction: Seven Compelling Reasons to Conclude that Good Sense is Dead

No Hill to Die On: The Dos and Don’ts of Public Protests

The Lethal Cost of Doing Business

“The Noxious Idea of Separation”

“The Polity and Us”

“When Politics and Law Collide”

A Digital Democracy can be a More Open Democracy

Canada Must Reject Calls to Release Meng Wanzhou: An Open Letter to Prime Minister Trudeau on June 26, 2020

For Whom the Bell Tolls

A ‘Full Head’ or a ‘Well Shaped Head?’

The most profound question about the role of education: Rabelais & Montaigne in 16th century France

Hatred for Donald Trump clouds judgment of Canadians

New ‘rights’ for air travelers: Canadians are in for a rude awakening

Canada should end immunity for perpetrators of torture

My Country, Sweet Land of Liberty?

Why Canada is America’s Xanax

The Truth: Zero New Spaces for Refugees in Canada

Recognizing the Armenian Genocide

CBC’s leaders bring it to the brink of an existential crisis

Let us beware of politicized policing….

The Ethical Case against Quebec’s Proposed Legalization of Euthanasia

Harper in Peru: What the Media Failed to Report

The “Under 40” Crowd and the Democratic Deficit

For Want of Responsible Government

War Cry

The Naked Judge: Why Lori Douglas is not a Victim

When the ‘Cure’ Causes the Disease: Zostavax Vaccine Can Cause the Very Disease (Shingles) it was Designed to Prevent

Whither the CBC — Building a Nation through Public Broadcasting

Pension Reform? Do as We Dictate, Not as We Do!

“The Unbearable Lightness of Being Canadian During a National Election”

Ontario’s Law Society in Need of Pervasive Reinvention

The Incinerator Project: A Health, Environmental, and Fiscal Disaster in the Making

Regent Theater Blues — An Encore Performance of Civic Shortsightedness

Stranger Than Fiction:
Seven Compelling Reasons to Conclude that Good Sense is Dead

Canada Must Reject Calls to Release Meng Wanzhou:
An Open Letter to Prime Minister Trudeau on June 26, 2020

When the ‘Cure’ Causes the Disease:
Zostavax Vaccine Can Cause the Very Disease (Shingles) it was Designed to Prevent

Whither the CBC —
Building a Nation through Public Broadcasting

Regent Theater Blues —
An Encore Performance of Civic Shortsightedness