Tuesday, 28 February 2012

Three ideas for citizen-centred justice reform

The BC government’s recently announced justice reform project is largely focused on process – in essence, its goal is to identify and implement system efficiencies that will reduce delay.  This is important work, and could yield real improvements, even though the solutions will probably look more like fine tuning than full scale re-design.  What I have observed in my discussions with lawyers, judges and officials over the last couple of weeks is that there is no shortage of good will and good ideas, and I believe there is reason for optimism that this project will make a difference in improving timely access to justice.
Today I want to put on the table some other ideas for justice reform.  They are not likely to get considered in the current process.  But they might helpfully illustrate why the current process is – or at least ought to be – just the start of a journey that could lead to much more significant re-thinking.  There are parts of our justice system that we have come to take for granted that are just the way things are.  What if we were to re-imagine it rebuilt from the ground up, with citizen needs as the organizing principle? 
We might conclude that the justice system should be based on (at least) the following principles:
  • it should be comprehensible to the ordinary citizen;
  • its decision-makers should have subject matter experience and expertise; and
  • its work should be efficient and timely.
To a considerable extent, these principles are not evident in the justice system today.  Accordingly, here are three suggestions for reform.  They don’t represent the only proposals that would support these principles, and I am offering them mainly just to illustrate the kinds of things that ought to be thought about, rather than to set out an exhaustive list of what should be done.  But here goes:

1. Simplify the system
The way our court system is organized is the result of the constitutional deal made when Canada was created in 1867, as refined over a century and a half of judicial and administrative decisions.  The deal made sense at the time, but its legacy is a system that is not well organized to meet citizen needs in the 21st century.  Let me give just two examples:
  • If you want a monthly maintenance cheque from your former spouse, you can go to the Provincial Court, but if you are having a fight over who should get the matrimonial home, you have to go to Supreme Court.
  • The question of how much money can be claimed in provincial small claims court is an arithmetic calculation that involves adjusting to 21st century dollars the monetary limits of certain magistrates courts in southern Ontario in 1867. 
Of course, achieving constitutional reform is always difficult.  Achieving constitutional reform of our judicial institutions would be a project of nightmarish proportions, given the powerful forces that would align in support of the status quo.   I should know.  In 2002, when I was Attorney General of British Columbia, the government decided for reasons of fiscal prudence to close 24 mostly underutilized rural courthouses, only to discover there were at least some judges who were prepared to sue the government to make the point that, in their view, government should not be allowed to close a courthouse without judicial permission.
But if structural change is impractical, perhaps it is still possible to fix the problem, or do something close to it.  Why not design a single web portal?  Call it “BCJustice.ca”.  Program a computer so it will tell you where to take your case, and even take you there.  (The system’s complexity would lie behind the portal.)  Standardize the forms for the commencement of legal proceedings in all courts.  And so on.  
As I said, this is not about the details, it’s about imagining a different discussion.

2. Formalize judicial specialization
Lawyers appointed to the bench have often spent their whole careers in specialized areas of practice: family law, say, or tax planning.  And yet the moment they become judges it is entirely possible they will find themselves presiding over a criminal jury trial or a complex insolvency proceeding.  Not only will they have little or no expertise in the area of law at issue; they may have never read the Criminal Code, run a jury trial, or understand how issues outside their area of specialization are litigated.  
I’m not going to advocate that judicial appointments should be limited to generalists, because that would wrongly eliminate from eligibility for appointment a host of highly qualified lawyers.  But I do suggest it is time we recognize that expertise means that trials will be more efficient (among other things, the time needed to educate the judge about the law will be significantly reduced), and produce better results.  You’re just more likely to make a mistake if you are doing something difficult for the first time.  
A certain amount of specialization is recognized informally in B.C. through the process of case assignment.  The administrative judges who set the rota will often try to match cases with expertise.  But there is no requirement to do so, and no guarantee that this practice is applied to all cases.  The stated rationale for this informal approach to specialization is administrative convenience.  It’s easier to assign judges to cases when you can draw upon the whole pool.  The unstated and probably more important reason is judicial morale management.  Judges like variety in their work, and so are happier when their caseload has a range of different kinds of issues.  
Both of these reasons make perfect sense if you are administering the system for the convenience of judges.  Neither makes much sense if you are designing the system for the citizens it is supposed to serve.  
Some litigants can choose how their disputes will be resolved.  The declining volume of commercial litigation in the BC Supreme Court has occurred because parties to commercial contracts increasingly choose to arbitrate their disputes.  Arbitration has long been the process of choice in international disputes because parties want certainty ahead of time about how and where their disputes will be resolved.  But arbitration is also increasingly the preferred method of dispute resolution for domestic commercial disputes; one reason is because parties want to know that if they have a dispute, it will be adjudicated by someone with commercial law experience and expertise.  In a very real sense, arbitration “competes” with the court for adjudicative business.  Given the opportunity to choose, litigants often prefer the certainty of expertise that comes with arbitration.  
If courts want to restore public confidence in their ability to decide cases efficiently and competently, isn’t it time for judges to specialize?
3.  Time limits for judicial decisions.
Imagine going to a car lot, picking the car of your choice, paying for it, and then being told that the dealer really has no idea when the car will be delivered to you.
Something like that happens every day in our courts.  Litigants hire and pay lawyers to prepare their case, they attend court, give evidence, watch their lawyers argue and then hear the words “judgement will be reserved”, meaning that the judge has to go away and think about the case before writing a decision.
Many cases are decided right then and there.  But I venture to think that happens less often now than it used to.  In part, that is because cases are more complex, or at least they are made more complex by the way they are litigated.  Getting the facts sorted out has become much more burdensome.  Boxes and boxes of photocopied documents and emails, most of only marginal significance, are handed to the judge, who has to read and make sense of them long after everyone else has gone home.  And because there is more and more disclosure of facts before trial, lawyers have much more fuel for the fire of cross-examinations.  Daily transcripts - now readily available - encourage extraordinary scrutiny of every word of testimony. 
And the law which must be applied to the facts is increasingly complex and uncertain.  Concepts of fairness, and fiduciary obligation, and the test of “reasonableness” increasingly infuse every aspect of law, all in the name of justice, of course, but with the result that the outcome of a case is much more a matter of judicial discretion and much less a matter of the application of a hard and fast rule to the facts. 
And judges take their job seriously.  They want to make the best decision possible for the litigants who have brought an important question to them, the answer to which may be life-changing.  Judges also want to avoid the kind of mistakes that appeal courts pounce on, which lead to orders for a new trial so that everything has to be done all over again.

So it is hardly surprising that judges want to take time for their decisions.  And it needs to be said that in many cases the time taken is not long - judges will often say at the end of a day in court that they need the evening to think about it, and that reasons for judgement will be delivered the following day.
Unfortunately, sometimes, decisions take a very long time.  And delay in delivering a decision is just as corrosive of public confidence in the judicial system as is delay in getting to trial.  
This is one of those areas where the principle of judicial independence rears its head.  Judges claim that while they understand the need for timely decisions, any attempt to impose deadlines would represent an unjustifiable interference in their ability to decide cases fairly.
I understand that perspective.  But I’m not suggesting unreasonably short deadlines.  I’m just suggesting deadlines.  The kind of deadlines that we all face in our work and lives.  The absence of deadlines for the delivery of judicial decisions exemplifies a system that is designed and administered for the benefit of those who work in it, rather than those it serves.  
Citizens deserve to know when their cases will be decided.  Isn’t it time for courts to agree?

Wednesday, 22 February 2012

Something you might not know about BC Hydro rates

The usual job of a utilities commission is to protect consumers from high prices that might otherwise be charged by monopoly service providers.  The utility asks for an X% increase, and the regulator gives it something less.  So it was more than a little interesting when the BC Utilities Commission decided last week to increase electricity rates by nearly twice as much as BC Hydro had asked for (7.1% instead of 3.9%).
In this case, BC Hydro was acting on the express orders of a government trying hard to minimize the impact on consumers of the higher costs that flow from its capital investment program.  And so for the government, the BCUC decision could be seen as a setback, and that is certainly how it has been characterized in many quarters.
But I don’t need to be an armchair political strategist all the time.  What I want to know is whether my BC Hydro rates are fair.  Judged by at least one measure - comparisons with our neighbours - they most certainly are.
Every year, Hydro Quebec does a comparison study of North American electricity rates. BC Hydro then submits a public report to the BCUC showing how it stacks up. The most recent report, filed in January, shows our residential rates are the third or fourth lowest in North America, depending on how much a residential customer consumes. 
Sometimes you have to say something twice, just to make sure you were heard correctly.  So let’s say it again. BC Hydro’s residential rates are the third or fourth lowest in North America.
I’m almost tempted to say it one more time.
Now to be clear, the most recent report (filed January 5, 2012) takes into account last year’s rate increase but does not reflect last week’s BCUC decision.  But I have it on good authority that this new increase is not expected to affect the ranking significantly.  Most likely, once the increase is implemented, BC Hydro’s residential electricity rates will still be the third or fourth lowest in North America.  
In some other parts of the continent, residential consumers pay two to three times as much as we do per kilowatt hour for electricity.
There are two reasons our prices continue to be relatively low.  First, across North America all utilities are raising rates for the same reason – the need to reinvest in aging infrastructure.  Secondly, in BC, we continue to enjoy the enormous competitive advantage of our relatively cheap hydro system.
This of course is not a fact you are likely to hear very often from opposition political parties or other critics of government’s energy policies.  Unfortunately, in my view, we don’t hear it often enough from government, either.  But the simple fact is that after more than a decade of BC Liberal government, with all of its much-debated innovations in energy policy, British Columbians still pay among the lowest prices for electricity in North America.  
Clearly in the  present economic climate, it is hard to defend any price increase, even one urgently needed to support expensive infrastructure upgrades.  Embattled consumers are highly sensitized to any increase in the cost of living.  And the competitiveness of large industrial consumers would be seriously challenged by significant power price increases.  
But that does not detract from the main point.  Even with the next round of increases, our power prices are not something to complain about or apologize for.  And if we do not make the investments necessary to renew our energy generation, distribution and transmission system, we will have a much more serious problem in the years to come.

Monday, 20 February 2012

A Friday night drive into the country

At about 4:30 on Friday afternoon, Janet and I left downtown Vancouver to drive to 100 Mile House for a family weekend in the Cariboo.  It was as foul as a late winter Friday afternoon can be.  Absolutely drenching rain, gloomy darkness, and occasional noisy gusts of wind blasting across the car windshield.  And traffic, traffic everywhere.  
At the freeway on-ramp we joined a long, slow-moving parking lot that stretched endlessly before and behind us.  We were tourists, in a sense, just driving through the city to get rid of it for a weekend out of town.  But everyone else was a commuter trying to get home after work.   For me, a car trip between home and office in Vancouver is usually about 15 minutes.  It involves only one bridge, which rarely backs up, and no freeways.  For most of those folks who shared the highway with us that evening, the drive to and from work is an hour and more each way on a good day, and on this night would have been an hour and a half of hands-clenched-to-the-steering-wheel-while-you-grind-your-teeth stress.  Hardly a relaxing start to the weekend.
I could lament the generations of poor planning decisions that have encouraged this lunacy, but really, on that evening, I was just filled with a sense of compassion for the people who spend so many wasted hours in their cars as they creep down Highway 1.  I also had a renewed appreciation for why those condemned to this daily fate could become strong supporters of a wider freeway and a new Port Mann Bridge, as they desperately look for some relief from the congestion, even though, to offer a medical analogy, the relief they seek might well be the wrong cure for the wrong disease.  The hard part is to explain to someone for whom this is their daily experience that what ails them is not, fundamentally, the constriction of our roads, but the cumulative impact of bad planning and the individual choices we each make every day to live and play and shop and work in places so far from each other.   
Of course, I understand the why of those decisions: seemingly more affordable housing (if you discount the cost of the lost quality of life from the hours spent behind the wheel); the convenience of travel by automobile; cheaper land for shopping malls; and so on.  And I also understand that the real business case for the Port Mann Bridge project is the need to ease congestion for the all-important truck traffic that is increasingly important to our gateway economy.  
But understanding these things, and living them, even if just for one Friday evening, are not the same.    When the traffic finally started to ease, somewhere east of the Abbotsford exits, I felt like my head was being released from a vise.  
Beyond Hope, as they say, the road gave us cause to reflect on other things.  Growing up in Vancouver, the Fraser Canyon was our principal gateway to the rest of Canada.  We drove the road for any number of reasons, but mainly, I remember, for ski trips to the Okanagan - my father refused to drive the Whistler highway because he thought it too unsafe.  And so instead we skied as a family at Silver Star outside Vernon.  Among the many legacies of those holidays is the ability - even now - to remember, in order, the names of the seven tunnels of the Fraser Canyon.  In both directions.  I have this fear that when I am in my dotage, some kindly grandchild will stop by the care home to pay me a visit, and although the child’s name will completely escape me, I will smile and state with great confidence: “Yale, Saddle Rock, Sailor Bar, Alexandra, Hell’s Gate, Ferrabee and China Bar, but that’s south to north of course!”
The tunnels are still there, but the long economic decline caused by the construction of the Coquihalla continues, and is tangible even in the darkness.   Between Hope and Cache Creek we saw at most a dozen cars.  Whatever else was happening in Canada on that Friday night in February, almost no one was driving through the Fraser Canyon.  There were glimpses of brightly lit kitchens and TV sets in a few homes in villages along the highway, but the overall impression was that even though we were only a few hours from one of the country’s great cities, travelling its national highway, and following the course of two of its great rivers, we were driving through a place that has been largely forgotten.  Time is not kind to the towns and communities left behind when the gold has been mined, the trees harvested, and the tourists lured elsewhere.
Very little of this landscape has been improved by man.  This is not a point about the visual impact of logging, highway construction or transmission lines, or the other environmental costs of economic development.  This is about the built landscape of the towns and villages themselves.  Is there is a single attractive building visible from Highway 1 between Hope and Cache Creek?   Well, yes. Alexandra Lodge, Ashcroft Manor and the church at Spences Bridge, for example.  But those buildings were all there - and in much better repair - when I first travelled the highway as a child.  Nothing much that has been built since then has enhanced its surroundings.  (Please offer your suggestions if you disagree!)
I know that there are abandoned cars hidden deep in the farmyards of even the most charming countrysides of Europe.  But surely not so many, or at least not so visible, as in our otherwise spectacularly beautiful part of the world.  An abandoned car in the front yard is probably evidence of poverty and perhaps also the absence of a convenient local landfill.  But a hundred abandoned cars in a hundred front yards is also some evidence of a collective lack of respect for the land.  What, if anything, should be done about this?
The other day a developer acquaintance was lamenting that in West Vancouver there is (apparently) an unwritten policy that requires individually paned windows in newly constructed homes.  Listening to his story brought out the voice in the back of my head that occasionally worries about our seemingly insatiable appetite for more regulation.  But maybe some of these policies are needed to constrain our individual actions so that their collective impact is more to the good than the bad.  When we cycled in western Ireland last summer, we had a wonderful conversation with someone about local government restrictions that impose a colour code on country houses.  Yes, that’s right.  Apparently in County Clare there are only three or four (I forget how many) colours you can paint your house.  Quite a remarkable intrusion of the state into the lives of home owners, but the result is a landscape where the houses add to the beauty, rather than detract from it.  And that is most certainly not the case in the Fraser Canyon, or, for that matter, most of the country roads in British Columbia.
We can readily imagine the outrage if someone suggested passing and enforcing a law requiring rural land owners to remove rusted-out car carcasses from their front yards.  But maybe the Fraser Canyon highway would feel just a little bit less like a junkyard that time forgot?   
We drove on into the dark, too late in the evening now for much except eyes on the road and old Beatles songs to keep us awake as Highway 97 climbed from Cache Creek onto the high interior plateau.  Just before 11pm, we finally reached our destination, a log house in the hills above Horse Lake.  There was snow on the driveway, and the firs and pines and poplars stood tall in the starlit yard.  The high country air was crisp and clean, with just a hint of woodsmoke.  A light glowed over the back porch.  And Vancouver, for a day or two anyway, lay somewhere far behind us in the night.

Tuesday, 14 February 2012

It's time to stop the violence and end the failed war on cannabis

Here is a link to the open letter which the four former BC Attorneys General (including me) have sent today to the Premier and Leader of the Opposition calling on the government to support the Stop The Violence campaign to end the failed war on cannabis and move to a regulate and tax regime:  http://bit.ly/w8tCII

Sunday, 12 February 2012

In praise of public sector employee reward programs

The Province’s political columnist Michael Smyth woke his readers out of bed this grey Sunday morning with a a strongly worded critique of a provincial government employee reward program that costs the government $1.5 million a year.  
Afraid to say I did not fall off my chair in righteous indignation.
No, the first thing I did was to get my calculator out and take the measure of this assault on my precious tax dollars.  So here we go.  Each working day of the year our provincial government spends $173 million.  Assume for a moment that the working day is 8 hours long - I know you think that this is about 7 hours more than bureaucrats actually work every day, but, hey, at least they are probably sitting somewhere at some plush taxpayer- funded desk looking out the window and thinking about how to take advantage of this fancy employee recognition program.  Well, you probably know where this is going.  By my calculation government spends $1.5 million of our money every four minutes.
Four minutes.  Yup.  For a minute there I was worried we were talking about something serious.
But really, let’s think for a minute what this article is really trying to tell us.
It’s obvious, isn’t it?  We are supposed to be outraged at the idea that folks who work for government might have access to the same kinds of employee recognition programs as are available in the private sector.  How dare they? we are meant to ask. It’s not the amount, of course, it’s “the principle of the thing!”
What principle?  
The principle is this: it is that we do not value government, the work it does, nor the people who do it.  Their work is somehow not work in the ordinary sense.  It’s something less.  Something we begrudge.  And most certainly something not worth acknowledging or rewarding.
I know what I am about to say is unfashionable, but I disagree.  I actually think government work is more than valuable, it’s essential to our quality of life.  And I think pubic servants should be recognized more often for the great work they do to make our province a better place.  The idea that they should be able to acknowledge each other’s efforts - at an apparent cost of something on the order of $52 per employee per year - sounds eminently reasonable and indeed admirable to me.  Something to be applauded, not attacked.
It’s kind of amusing to read Smyth argue that the funds spent on this program ought to be spent instead on health care or education.  It’s not just that the amount in question would make no appreciable difference to the health care or education budgets.  No, it’s that his argument assumes that health care and education are abstract inanimate goods, rather than services delivered by - heaven forbid! - public sector workers.  Who, if truth be told, are for the most part hard-working, dedicated, highly-skilled people who, unlike most of us, have chosen to work in the service of the public, not just for their own private advancement.  
Now it’s absolutely legitimate to ask whether this program has the sorts of controls that programs like this ought to have.  But there’s nothing in Mike Smyth’s article that helps me know whether that’s so.  What I suspect is that the two opposition politicians quoted in the article had never heard of the program until Mike Smyth called to tell them about it.  And of course they did what opposition politicians are supposed to do in such circumstances (I know because I used to do it myself when I was an opposition politician) - wax indignant.  Forgetting, of course, that as politicians they routinely have access to the same sorts of goodies - when they are handing out those nice Canada and BC flag pins at elementary schools, what they heck else are they doing except making people feel good?  And if the folks who run our local media outlets don’t have a sleeve or two of company logo golf balls in their desk drawers, I’d be startled.
By this point in the day, I suspect, the email inboxes of MLAs and journalists are filling with the chorus of outrage of citizens complaining that the fat cat bureaucrats have once again been caught lining their pockets at our expense.  Forgetting, of course, that the target of their outrage is actually the guy down the street who missed his son’s basketball game last week because he was putting the finishing touches on a report to his assistant deputy minister, or the social worker in the apartment downstairs who hasn’t slept well for awhile, because there’s a file on her desk with a problem that has no easy answer and she can’t make up her mind yet what to do.  
I fear that by the end of the afternoon, in time for the evening TV news cycle, this little program will have been killed by some nervous politician.  More’s the pity if that be so.

Friday, 10 February 2012

More on justice system reform

Yesterday's posting about the government's justice reform initiative yielded an email from one of the province's most innovative lawyers, my friend Chilwin Cheng, a founder of, among other things, FiredWithoutCause.com, FairDismissal.com, and most recently ContractTailor.com, all of which are examples of how technology is increasingly, and fundamentally, transforming access to justice.  Reproduced below is a portion of Chilwin's note to me, which in turn includes links to some interesting work he and his colleagues are doing on how process reform methodology can improve justice system efficiency.   


Recently, I began a series on how legal organizations can use concepts from Operations Research and Strategy to improve legal organization effectiveness and efficiency.  We started our series with the concept of minimizing wait times, demonstrating how a law firm could double revenue capacity for a simple will offering by reorganizing the work process - without additional expenditure on marketing, staffing, etc.  Further in the series, we will be exploring the role of geography and physical proximity, resource utilization, resource levelling, and other topics commonly debated in manufacturing research and applying them to legal organizations.

Here is a link to the first of the articles, an introduction to the Toyota Production System and our interpretation for law firms: http://wp.me/p20LW4-1s.
This is a link to our "minimizing wait time and shortening cycle time" article: http://wp.me/p20LW4-23

I thought that, if you had time, these short articles might prove useful (or at least interesting) to you or someone you know involved in the process.

These are genuine attempts at contributing to the conversation about how lawyers can lead a change within industry to serve clients and the public better.  The vast majority of thinking around legal reform in the private bar is generally centered around alternative billing strategies and its consequences. In the public sector, stakeholder management seems to be a dominant theme.  We firmly believe that the view of operations research can bring non-partisan and fresh thinking to our collective desire to reform the "System".

I am keen to speak with whomever will listen and be open to new ideas about how we can ensure that the system serves the public interest in an increasingly complex world.

Thank you for receiving this email, for your past interest and support for my work, and for conversations in the future.


Chilwin C. Cheng, LLB, MBA
Co-Founder and CEO

t: 778.867.7678

Wednesday, 8 February 2012

Are we ready for a real discussion about justice reform?

It’s much easier to admire the wit in Rahm Emanuel’s famous dictum to "never let a serious crisis go to waste” than it is actually to take it to heart and act on it.  And yet that, surely, is what the BC government is doing – or at least starting - with its justice system reform initiatives announced today.  
It has been distressing to watch over the past few months as the voices calling for justice system reform have been increasingly drowned out by the noise of those claiming that the answer to what ails the justice system is simply money: more and/or better paid judges, sheriffs, legal aid lawyers, and so on.  The analysis in today’s Green Paper demonstrates that there are problems with our justice system that money alone will not repair.  The process announced today holds real promise for a desperately-needed dialogue about how to create a justice system that actually works for the benefit of those it serves, and not just those it employs.
As someone who has had first hand experience of the wrath of defenders of the institutional status quo, I was fascinated to read a government report that actually states – oh heresy of heresies - that “there are significant issues of culture and tradition within the [justice] system that may impede real understanding and change.” Of all the nerve! These cultures and traditions - think, for example, of judicial independence, prosecutorial independence, and defence counsel independence – are usually invoked as reasons to oppose change rather than invite it.
And yet we simply must find a way to move from the near perfect solitudes of institutional independence to a truly collaborative system.  It must surely be possible for each justice system official – judge, lawyer, police officer, bureaucrat – to have both the independence needed to do their job without inappropriate political interference, and the obligation and capacity to work constructively, cooperatively and efficiently towards the real goals of the justice system, namely, timely accountability for criminal wrong-doing, and efficient and impartial dispute resolution.  Without meaningful change, public confidence in the justice system will decline, no matter how much money is spent on it.  
The Green Paper acknowledges that the solutions to these complex problems are not obvious.  But if they could at least be examined from a perspective that included real system, process and business thinking and discipline, there is some prospect that good solutions will be found.  That is why the focus in the paper on these issues is particularly welcome.  There are lots of good lawyers and judges, but they are trained in the law, not in process or systems analysis, and yet they sometimes achieve positions of great influence in the justice system without any experience or expertise in how to run anything bigger than a small law office.
In my volunteer world as a director on the board of a health organization I have learned a great deal over the last couple of years about Toyota’s famous “lean” process improvement methodology.  I started out as a skeptic.  After all, a health care patient is surely not the same as a car.  But when it comes to process improvement, they are more alike than not.  And there’s no good reason why a court case is any different.  Unfortunately, discussions about process improvement are often anathema to legal purists who argue that courts ought only to be concerned with the protection and enforcement of legal rights, and that fairness should always trump efficiency.  The justice system is simply too complex and expensive to allow such thinking to dominate any longer. 
When I was Attorney General, I once spent a long hour in a debate with officials over the question whether it was too ambitious to update one of our performance indicators by reducing the average number of court appearances by an accused person from 5.6 to 5.4.  I was asked to consider how burdensome it would be for lawyers and judges and schedulers to achieve this goal.  5.6 to 5.4.  I kept thinking to myself, who among the public really cares about lawyer scheduling convenience?  Why is this so obviously the first consideration, rather than the last?  Perhaps more to the point, why does anyone ever need to appear more than twice in a criminal case? (once to plead, and a second time, if necessary for the trial and, if convicted, sentencing.)  
All this, anyway, after a first read of a Green Paper that deserves to be carefully studied and debated.  It does not address every issue faced by the justice system (for example, there is not enough said, in my view, about the transformational impact of technology as a disintermediating force in improving access to law and justice, and it is silent on the urgent need for formally recognized judicial and lawyer specialization), but it is a very welcome step towards real and meaningful reform.  

Tuesday, 7 February 2012

What does John Cummins really want?

Of the two provincial by-election campaigns about to get underway in BC, the race in Chilliwack-Hope may be the more interesting.  It looks like the fight in Barry Penner’s former riding will be between a BC Liberal candidate with impeccable conservative credentials, and a BC Conservative party candidate with impeccable conservative credentials.  


Well, it’s true.  The BC Liberal candidate is Laurie Throness, who was chief of staff to former Conservative MP Chuck Strahl, and calls himself a “policy conservative.”  The BC Conservative Party candidate is John Martin, a professor of criminology and former Chilliwack Times columnist, whose party describes itself as “BC’s only true conservative party.” 

So with two candidates trying to “out-conservative” each other, maybe this is as good a time as any to ask what it is that BC Conservative Party leader John Cummins actually hopes to achieve.

Because it seems to me that there is a direct cause and effect relationship between BC Conservative Party electoral success and the likelihood of an NDP election victory in 2013.  And I am guessing that, unhappy as some folks are with the current government in Victoria, the kind of people who are likely to support Mr. Cummins are likely to be even unhappier with the prospect of NDP Premier Adrian Dix. And yet that is almost certainly exactly what will happen if they achieve the success they seek.

Admittedly, the force of this argument is only as strong as the electoral formula which has explained BC politics for over sixty years.  But the thing about an enduring formula is that unless and until that unforeseeable moment when everything changes, the formula is the best explanation we’ve got.  And the formula here is very clear: when the “centre” and the “right” are united under one umbrella, they win; when they are fractured, the NDP wins.

That is the explanation for the NDP’s three electoral victories.

In 1972, after 20 years of Social Credit government under WAC Bennett, the NDP under Dave Barrett were elected.  In that election the perennial third party Liberal vote stayed flat, the NDP popular vote increased slightly (from 331,000 to 352,000), and the Socred vote declined by 125,000 from the 1969 election.  Where did the Socred votes go?  Not to the NDP.  The fourth party Progressive Conservatives went from a scanty 1,087 votes in 1969 to over 143,000 votes in 1972.  It was the Progressive Conservative upswing that gave the NDP their win.

In 1991, in the aftermath of the Vander Zalm premiership, Socred supporters fled the party for Gordon Wilson’s BC Liberals.  The Socred share of the popular vote declined by 25%.  The BC Liberal Party’s share of the popular vote increased by slightly more than 25%.  The NDP won 51 of the 75 seats and formed government under Mike Harcourt.

One of the enduring myths of the 1991 election is the claim that centrist voters decided to opt for the more moderate Mike Harcourt as an acceptable alternative to the Socreds  In fact, the NDP share of the popular vote declined between the (disastrous) 1986 (42.6%) and (successful) 1991 (40.7%) elections.  There was no mass migration of voters towards Mr. Harcourt.  There was just a split of the centre-right, and the result was an NDP victory.

Similarly, the NDP managed to eke out another win in 1996, although their share of the popular vote declined still further (by a percentage point to 39.5%), because the centre right vote split four ways: BC Liberals (41.82%), Reform BC (9.3%), Social Credit (6.3%) and Gordon Wilson’s PDA (5.7%).

Jack Weisgerber, who led Reform BC in the 1996 election, felt so bad about what he had done to help the NDP get elected that he actually made an appearance in the 2001 BC Liberal platform document, saying (and this is a quote), “I’m not going to make that same mistake again.” 

The formula has continued to operate since 1996.  Putting the lop-sided anomaly of 2001 to one side, the NDP under Carole James actually managed to increase their share of the popular vote in 2005 and 2009, and yet lost to the BC Liberals, in large part because the centre-right vote stayed intact, although the Green vote at nearly 10% was probably unhelpful to the NDP.

That’s the storyline.  For sixty years and more, third and fourth parties of the centre and right have come and gone, and so have their leaders.  Their only significance to the ultimate equation of who has formed government is that whenever they have attracted a significant percentage of the vote, the benefit has gone to the NDP.

Given this history, what is it, then, that John Cummins is up to?

I’m not sure.  I know John Cummins.  He was my MP for a time, and we used to see each other at events in the community.  He was a good constituency MP; hard working, diligent, and utterly unafraid to stand up - indeed, even get arrested - for his beliefs.  He’s not kidding when he says he’s a real conservative.  

But in my time as a BC Liberal MLA, I had colleagues in caucus and supporters in the party whose views were just as conservative as those of John Cummins.  Just like the liberals with whom they shared a party, they had principled views which did not always match those of their more centrist or moderate colleagues.  And we spent many long hours in the caucus room working to find the common ground that allowed us to stay united as a party.  Although I am not a member of that caucus today, I still know BC Liberal MLAs who represent a host of different points on the ideological spectrum, and I am quite sure discussions in the caucus room are as vigorous today as they were a decade ago.

The result, of course, is that the policy direction of the BC Liberal Party has never been inflexibly either conservative or liberal, although for the most part it has followed a path that accommodates both.  No doubt, this legacy could quite possibly be frustrating to someone who believes strongly in one set of views or another, especially those who practice their politics from the safety of their armchairs.  But for those who seek elected office, the truth they will discover is that all politics, sooner or later, is about compromise.  It’s as rare as a unicorn for anyone in our system of government consistently to get their own way.  The genius of those who are really good at elected government is how they use the wellspring of principle as a guide, not a straitjacket, because the real world is almost always far too complex for the simple application of rigid ideology.

Mr. Cummins is not resting in his armchair, entertaining friends with his political opinions.  He seeks elected office.  Or at least, he is the leader of a party that is nominating candidates for elected office.  Perhaps his agenda is to displace the BC Liberals as the coalition party of the centre right?  Not likely.  He often had trouble fitting in with his federal Conservative caucus; he’s not a coalition builder.  And it’s hard to see how a party that brands itself as the “real conservative party” is ever going to attract support from the centre.  I know federal Liberals who would much rather vote for the provincial NDP than ever cast a ballot for a provincial party led by John Cummins.  

Perhaps his agenda is simply to establish a conservative party as a permanent electoral force on the provincial electoral landscape.  Goodness knows, we could always use a wider range of interesting and thoughtful ideas in BC politics.  But history, if it tells us anything about BC politics, says that not only is this a faint hope, it’s a misguided quest.  Whenever someone has come close to success in building a third party on the centre-right, the result is that the NDP wins.  So again, Mr. Cummins, what do you really want? 

Thursday, 2 February 2012

In defence of MP pensions - Part 3

Part 3
Deciding whether MPs are fairly compensated is a complicated and contested question.  I have previously discussed the risks, uncertainties and disruptions that are part of the life and duties of an MP.  That doesn’t completely answer the question.
MPs are called upon to make decisions that engage the fate of the country.  They may not do so every day, and indeed they may only have to do so once or twice in their political careers.  But if and when that moment comes along, I would feel more confident about my country’s future if I knew that the very best Canadians were in the room to make that decision.  It makes no sense at all in my view to pretend that we will get the best Canadians in a room if we don’t offer to compensate them fairly.  I believe strongly that public service is a calling, and a duty, and involves a measure of sacrifice.  But if we don’t pay MPs fairly, then we can hardly complain about the quality of their work.  In this, as in most things, we should expect to get what we pay for.
The work of an MP is complex and demanding.  MPs are expected to have informed opinions about subjects as complex as Canada’s role in the world, the regulation of banks, national monetary policy, our military options and responsibilities, medical device licensing, immigration and refugee policy, law enforcement, constitutional reform, well, you get it.  It’s a long list, and some folks spend their lives trying to master just one of these subjects.  MPs are not expected to be experts on every topic that crosses their desks; but they are supposed to be experts in something which is even more difficult – and that is the business of turning all these complex questions into good policy and effective politics.  That involves a whole host of additional expertise and skills.
Now you may say that many of our MPs don’t routinely possess these skills and expertise.  Perhaps.  I’m not concerned with how much the people who currently do the job of MP deserve to be paid; my concern is to establish a compensation level that is appropriate for these duties and responsibilities so that people who are qualified might have some reason to want to put their skills and expertise to good use in the service of our country as an MP.  
Affordability is a relevant consideration.  But it is vastly over-emphasized.  I am much more familiar with the relevant provincial facts.  The budgeted estimates for the operation of the BC Legislature in 2011/12 are approximately $69 million.  No doubt, that is a significant sum of money.  (Not all of it is for MLA salaries and benefits.)  It is, however, less than 2/10ths of one percent of the total consolidated revenue fund expense for that year ($34.6 billion).  It is a very small burden on the overall cost of government.  If the cost of operating the legislature were twice as expensive, it would still be much less than a rounding error in the budget of the provincial government.  I expect that the figures are at least somewhat comparable for the federal Parliament.  In short, the public revenues of Canada are more than adequate to permit us to pay MPs fairly.
So where does this take us?  In 2012 the base salary of an MP is $157,731.  That figure excludes the cost of the benefits and pensions that I say ought to be included to give a truly accurate picture of MP compensation.  But what if, as I suggested earlier, the net “comprehensive” income of an MP was, say, over $300,000 per year?  Am I offended?  No.  I know what good and experienced doctors and lawyers and academics and business people and public administrators make, and in many cases, these folks earn much more than $300,000 a year.  They work hard, and have demanding jobs, but they do not shoulder burdens of responsibility equal to those that lie on the country’s legislators.  
Although I want my House of Commons to mirror the gender, ethnic, cultural and human diversity that is Canada, I especially want it filled with MPs who are in the best qualified people our country has to offer.  We ought to go out of our way to ensure that compensation is not a deterrent to holding public office.  We ought to stop punishing people who might want to serve our country by paying them less than the job is worth.  If that means that a portion – even a large portion – of their compensation is a pension plan that gives them a significant measure of certainty for their life after politics, in return for the risks and burdens of their time in elected office, we should celebrate that fact, not bemoan it.

In defence of MP pensions - Part 2

Part 2
In a previous post, I argued that the standard criticism of MP pensions, that they are too generous compared to other pensions, fails to take adequate account of the reality that the duties and responsibilities of an MP simply cannot be compared with any other job.  The pension comparison argument is based on a false premise and therefore misleading.
In this post I intend to argue that MP pensions should not be examined in isolation from the rest of their compensation package.  In effect, an MP pension is compensation now, collectable later, for the burdens and risks of holding elected office.  
As we have seen, discussion of pension plans often involves comparing the amount which the worker contributes to his pension with the amount that his employer contributes.  The comparison is usually expressed in the form of a ratio, as in “for every dollar the employee contributes, his employer contributes three dollars.”
The higher the ratio, the “richer” the pension.  The federal government says that for every dollar contributed by an MP to his pension account, the government contributes $5.80.  (This figure has been criticized in a recent report published by the Canadian Taxpayers Federation.)  I have no idea if this figure is accurate.  My interest in this statement is in the part about how much the MP “contributes”.  
Where does that contribution come from?  From the MP’s income.  And where does that income originate?  The government, of course.
The fact is that taxpayers pay for the whole pension.  (This is true, of course, for all public sector pensions – teachers, nurses, civil servants, etc.)
Now I don’t say this to make MP pension grumps even grumpier.  My point is that the distinction between the employee and employer contribution is just an accounting exercise (driven in part by tax considerations), an allocation of compensation between salary, which is immediate and direct; and pension, which is deferred and conditional.  You don’t get the pension unless certain things happen; you have to both serve and live long enough, but that promise of an eventual benefit has value in the here and now.
I recognize that it is not possible to calculate ahead of exactly how much pension income each MP will earn over their lifetimes.   That’s because we can’t predict how long they will serve and live. But it is possible to make that calculation globally and actuarially, and indeed this is routinely done for most pensions in order to determine whether pension funds have sufficient assets to meet expected demands.  
It is also possible to turn the best estimate of how much pension income an MP will eventually receive into a present value amount for each year in which that person will serve.  We often see calculations of much pension a specific MP might earn for X years of service, starting at age Y, if he or she lives to age Z.  Less often do we see a calculation of the present value of that amount.
But if we saw that latter calculation, we would in my view have a number that is a much better representation of the actual, comprehensive, income of the MP.  It’s a number based on a range of assumptions, and is as vulnerable as those assumptions, but it’s a number all the same.
I’m not capable of doing that calculation, even for my own MLA pension entitlement.  Sorry, but I abandoned math right after high school.  But let’s just be hypothetical for a minute.  The salary of an MP in 2012 is $157,731.  Suppose we discovered that the net present value of MPs pension entitlement, and the cost of the additional benefits was, just for fun, $157,731.  In effect, what we’ve shown is that what might be called the comprehensive income of the MP is just over $315,000.
The reason I like this exercise is because it is a better way of asking the question about whether the work of an MP is worth what we are paying for it.  Instead of segregating the income into its discrete components - present income, the cost of health and other benefits, and the deferred pension income, adding these amounts together yields a figure which takes them all into account.
The “richness” of a pension entitlement, as a stand-alone ratio of contribution to contribution, tells us very little.  It may be that a generous pension is part of a compensation arrangement in which the salary is relatively low.  But the employee may be willing to take the lower salary now in return for the promise of a good pension later.  Adding the whole package together gives you a much better sense of whether someone is fairly paid for the work they do.

In defence of MP pensions - Part 1

There’s lots of criticism these days of MP pensions, and a sane person might think that only Wile E. Coyote could want to wade into these dangerously churning waters.  But whenever there is a line-up of columnists and commentators all working overtime to agree with each other about something, I can’t help wanting to have a look at the other side of the question.  So in this and two subsequent posts, I am going to make three points in defence of MP pensions:
  • there is almost no similarity between the “job” of a Member of Parliament and any other employment.  Accordingly, the standard comparison argument - which is that the MP pension plan is unfairly generous compared to what other workers get is based on a faulty premise and therefore unsound.  
  • MP pensions are a component of their overall compensation, and it’s the whole package – not just the pension entitlement - that should be looked at if we want to consider the fairness of their compensation.
  • when their complete compensation package is looked at in light of the conditions and responsibilities of elected federal office, it’s fair and reasonable. 
Before I continue, full disclosure:  I am a former BC MLA and eligible to collect a pension for my nine years of elected service when I turn 60.  Obviously, I have a pecuniary interest in the issue of politician pensions, but I hope my arguments have some force, nonetheless. 
Part 1
A standard complaint – perhaps the standard complaint - about the MP pension plan is that it is too generous.  “Too generous” compared to other public and private sector pension plans and too generous given that so many workers have no pension plan at all.
The problem with this comparison argument is that the work and life of an MP is so completely unlike any other job, that any attempt to compare it to ordinary employment is simply wrongheaded.
There is nothing about the getting, the doing, or the leaving of federal elected office that looks anything like what other folks do for a living.
In the ordinary world, when people want a job, they apply for it, and they are entitled to assume that, if there is a vacancy, the employer will consider their application fairly, and decide among the applicants who is the best qualified for the job, and hire accordingly.  In most cases their personal privacy is protected, and if the employer were to make the hiring decision based on such considerations as hair colour or height or religious affiliation, the rejected applicant could file a complaint of discrimination under the Human Rights Code
Not so, elected office.  The moment you state your intention to run for Parliament, you enter a world in which the hiring decision - an election - is the most public process imaginable, where every aspect of your personal and private life is fair game, and where the ultimate decision, made by voters, can be made on any basis at all. Hair colour, height, and religion? Not only are these personal attributes not forbidden from consideration, they are often the subject of vigorous public discussion - think Mitt Romney and Mormonism, for example.
Running for office is completely unlike any other job application in one other important respect.  When you apply for a job as a sales manager for a manufacturing company, you know pretty much exactly what the job is, and how much it will pay.  When you run for public office in our system, you are of course hoping to get elected as an MP.  But everything else is up for grabs.  You could wake up the morning after an election and find that not only are you an MP, you are about to become the Minister of Finance, or alternatively, just one of a sea of backbenchers in a party elected by an overwhelming majority.  In 1993 Elsie Mackay ran to become an MP in Kim Campbell’s Progressive Conservative government, and on election night found herself one of only two members of her party elected in the whole country.
Once elected, holding public office is nothing like any other job.  In the first place, you don’t really have an employer in the conventional sense.  Instead, you have multiple and often conflicting duties and loyalties - to your constituents, your party, your caucus, your leader, and your country.  In a tumultuous and changing economy, few of us have the job security that could be taken for granted a generation ago.  But even so, MPs have nothing resembling conventional job security.  Consider all the federal Progressive Conservatives elected for the first time in May 1979, only to lose office nine months later when Prime Minister Joe Clark lost the famous non-confidence vote.  Even in a world where fixed election date laws are supposed to provide certainty about the timing of elections, we know from experience that Prime Minister Harper is willing to disregard those rules when it suits his political purposes.
With the possible exception of active military duty, there is surely no other job so relentlessly disruptive of family life as that of a Member of Parliament.  If you are a federal MP from rural British Columbia, a trip to your office in Ottawa will often take more than a day out of your life each way.  Yes, the Port Mann bridge is a nuisance for Lower Mainland commuters, but it does not hold a candle to spending two or more days each week on airplanes just to “get to the office”.
And your electors usually have not the slightest bit of sympathy for this reality.  For some of the years I lived in Richmond, Raymond Chan was a Liberal MP and junior cabinet minister with responsibility for Asia Pacific issues.  I will always remember the fact that there were two things consistently said about Raymond: one, that he didn’t spend enough time in his constituency; and two, that he didn’t spend enough time away from his constituency (in Asia or Ottawa).  No matter where he was, and how hard he was working, a significant number of his constituents thought he was derelict in his duties because he should have been somewhere else. 
A recent BC survey found that MLAs missed on average 98 nights a year away from their family.  The number is surely higher for federal MPs.  Lots of people travel for work, but to spend a third of the year on the road is awfully hard on your personal life. I was particularly angered in 2010 when Russ Hiebert, a Conservative MP for South Surrey - White Rock - Cloverdale was forced to defend his expense account by explaining that he was travelling between Ottawa and his home and Cloverdale with his wife and children.  Imagine that.  An MP trying to keep his family together?  No wonder his office was vandalized!
And although I have already made the point that seeking elected office involves a nearly complete loss of personal privacy, it’s worth emphasizing that this doesn’t change once you are elected.  In BC, for example, MLAs are required to file annual disclosure statements concerning every aspect of their personal, family and business finances. When I was an MLA, I had to disclose my daughter’s baby-sitting income and my son’s paper route earnings.  And if you have had an active business, you will probably have to leave it in someone else’s hands, and hope that you don’t experience the same fate as my friend and colleague the late Stan Hagen, who put his business into a blind trust and had to stand by and watch when it went bankrupt.
And lastly, there is losing your “job” as an MP.  Now of course many MPs voluntarily choose not to seek re-election.  But being fired by the voters is a potential outcome that awaits any incumbent who seeks re-election.  And you can be relieved of your duties for any reason, rational or irrational.  Of course, if you are defeated, you face the prospect of standing on a stage in front of a crowd of supporters and TV cameras and having to say something graceful like “well, the voters are always right, and tonight they decided to elect someone else.”  I wonder how many people who have just been fired saying to their families and friends, “Well, the boss is always right, and he was certainly right to fire me!”
So being an MP is a job unlike any other.  Indeed, it’s really not a “job” at all.  And while there are certainly some who leave elected office and resume their former careers or find successful new ones, there are also folks for whom the transition from public to private life is extraordinarily difficult.  The April 2007 Report of the Independent Commission to Review MLA Compensation concluded (at page 11)
“There is no job security [for MLAs] and often few job prospects and little thanks when the position comes to an end.  One may ask why anyone would voluntarily subject themselves to such a working environment.  The reality is that very few MLAs themselves understand the demands of the position, the significance of their responsibilities, the impact of their decisions and the intensity of the media attention until they are elected.”
All of this is at least as true for MPs as MLAs.  If anything, the position of MP is even more demanding, more heavily scrutinized, and more disruptive of personal life.
For these reasons, it seems to me that the exercise of comparing the MP pension plan to the pension rights of others is intrinsically flawed.   It’s not that the work and life of an MP is harder, and so MPs should have generous pensions.  It’s that their duties and responsibilities are so completely different from other employment that the exercise of comparison does not hold water.  The better question is to look at MP compensation as a whole and decide whether it is fair and reasonable.  I will turn to that question in the next posts.