Friday, 30 March 2012

It’s time to change the law that requires workers to pay union dues to support political causes

The headline news this morning is that the BCTF plans to campaign to unseat the government in the next election.  A timely opportunity to remind ourselves of the extraordinary advantage that unions in British Columbia enjoy when it comes to politics.  Unlike any other organization in our society, a union can compel bargaining unit employees to contribute to support political causes. 
That’s right.  If you are an employee in a workplace that has been organized by a union, you are required by law to pay dues to the union, and the union is permitted by law to use those funds for political advocacy.  To make donations to political parties, take out ads in support of political parties, all of it. This is not just the way the BCTF membership rules work; it’s the way the BC Labour Relations Code works.
So to put this in the context of today’s announcement, thousands of teachers who are members and supporters of the BC Liberal Party woke up today to discover that their union plans to require them to pay for a political campaign against the party and government they support.
In a word, that is outrageous.
It’s all the more troublesome when, as is the case here, we are talking about a public sector union, whose members are paid by tax dollars.  That means the BCTF campaign against the BC Liberals will effectively be paid for by tax dollars.  Your tax dollars.  My tax dollars. 
I am not aware of any other organization in society that gets this advantage.  I am not arguing here against the compulsory payment of union dues for labour relations purposes.  That’s a good issue for another day.  I can at least understand the logic behind requiring all bargaining unit employees to pay dues to support the union that bargains on their behalf so that it can do the work of bargaining.  But there is no valid labour relations purpose in requiring an employee to pay dues to a union so that it can launch a political campaign.
In my view, that’s a violation of one of our most fundamental and cherished freedoms - the right to decide for ourselves who we want to support politically.
I’m sorry to say that during my time in government we did nothing to remove this legal obligation.  But luckily, there is a bill on the order papers of the BC Legislature right now that would do that very thing.  It’s Bill M 210 - 2011, the Workers’ Dues Transparency and Rights Act.  Introduced by John Rustad, the BC Liberal MLA for Nechako Lakes.
Here’s what it does.  It amends the Labour Relations Code by requiring trade unions to establish a separate labour relations account for the purpose of collecting monies and paying for the core activities in support of their members. It defines those core activities broadly to include all labour relations activities, and then it provides that union dues can only be used for those activities.
Passing this act would protect the democratic rights of all workers to support whichever political party they want to - as an expression of their own choice, not the decision made in a union head office - without in any way compromising the ability of unions to represent the labour relations interests of its members.  It strikes exactly the right balance.  It is timely, and it is overdue for enactment.
Note to BC House Leader:  why not call this bill for second reading debate when the House resumes on April 16? 


A point of clarification, after reading Ryan's reply (below).  I am not opposed to political advocacy by the labour movement.  If an organization that is not a union - say, the BC Federation of Labour - established a political action fund supported by voluntary contributions, that's not a problem.  (I leave for another day whether we should embrace a more radical reform of political donations.)  My objection is to the fact that unions are legally authorized to compel their members to contribute financially to political causes. 

Thursday, 29 March 2012

And now for something completely..... A E Housman

Jogging into work this morning, it was damp and gray, but somehow the rain held off until the last few blocks before I reached my office.  Fish & Bird played in my earphones: “every whisper is a shout across the void”.  There was a hint of bright light on the western skyline.  And blossoms, blossoms all along the way.  For a moment or two, everything was just fine.  Was it just the endorphins?  Or maybe a hint of A E Housman: 
Loveliest of trees, the cherry now
Is hung with bloom along the bough,
And stands about the woodland ride
Wearing white for Eastertide.
Now, of my threescore years and ten
Twenty will not come again,
And take from seventy springs a score,
It only leaves me fifty more.
And since to look at things in bloom
Fifty springs are little room,
About the woodlands I will go
To see the cherry hung with snow.

Wednesday, 28 March 2012

Basi-Virk: an open letter to John van Dongen

Dear John,
I understand that one of the issues which caused you to leave the BC Liberal caucus and party is your continuing unhappiness about the so-called plea deal in the Basi Virk cases.  Apparently you have even hired a lawyer at your own expense to investigate your concerns. I don’t know all of the questions that you want answered.  But I am hoping you might answer one of mine.

Before I pose the question, let me set the stage.

On October 18, 2010, as you know, Dave Basi and Bob Virk, two former BC Liberal political staffers usually described in the media as “the two men at the centre of BC Rail corruption case” pleaded guilty in B.C. Supreme Court in Vancouver to four criminal charges.  They admitted providing insider information to interested parties in the 2003 sale of BC Rail and receiving benefits for the information, including money and a trip to an NFL game in Colorado.

They were sentenced to house arrest and Basi was fined $75,600, equal to the amount he admitted he was paid in exchange for the information.

Lesser charges against Aneal Basi, who was accused of money laundering, were stayed, bringing an end to the trial. 

Later that day the government announced it had agreed to waive its claim against the three defendants for their legal fees amounting to nearly $6 million.  There was a strong public reaction to this announcement.  So strong, that two days later, on October 20, 2010 Deputy Attorney General David Loukidelis felt compelled to release a public statement.  A copy of that statement is readily accessible on the Internet.  I found it at this site:

It needs to be read in full, and carefully.  So far as I am aware, no one has ever credibly suggested that this statement is factually incorrect.

To summarize, guilty pleas had been proposed.  Discussions ensued about the fees.  The special prosecutor was not involved in those discussions.  Government decided to release the three defendants from any claim for repayment of their legal fees.  The defendants pleaded guilty.  What is clear is that there was no legally binding deal.  There couldn’t be.  The waiver of recovery of fees was not and could not be an inducement to plead guilty .  As a matter of law they were not connected.   But that was of course the outcome.  It was done very, very carefully, to make sure the rules were followed.  But it was understood that with guilty pleas, the claim to fee recovery would be waived.
The facts which have been publicly reported about the net worth of Basi and Virk make it plain that there was not the slightest chance that government would ever recover from them any more than a small fraction of the $6 million their lawyers had already spent.  And of course, that number was bound to increase if the trial continued. $6 million would become $7 million, perhaps $8 million, perhaps more, and no chance of getting any of it back. 

People were (and still are) outraged that government waived the fees.  But if government had said, “no thanks, we won’t forgive the legal fees”, do you think there would still have been guilty pleas?  Of course not.  Why would there be?  There was nothing preventing the defendants from pleading guilty any time they wanted to.  What they wanted was to be released from responsibility for their legal bills.  No release, and the trial continues.  On and on, no end in sight, the legal expenses mounting, and no certainty of conviction.
It’s worth emphasizing the point.  What was offered were guilty pleas on behalf of the two key defendants.  Admissions of criminal wrong-doing.  The very object of the entire exercise.  This was not an open-ended public inquiry where all the issues about the BC Rail deal were being investigated.  It was a criminal case, in which the only issue at the end of the day was the guilt or innocence of the three defendants.  No one and nothing else was on trial.  
If this had been a civil case, you’d express the option this way:  “I get a court decision in my favour, and all I have to do is relinquish a claim for money I could never collect anyway?” Because it’s a criminal case, it’s more complicated, but in the end, that’s as good a way as any of understanding it.
So here’s the question.  What would you have done?  
In politics and the law, like life, there are rarely any moral absolutes.  More often than we would wish, there are just difficult choices among imperfect options.  Sometimes the decisions are very, very hard, because there are (with apologies to Yogi Berra) truly pros and cons to both options.  This was surely one of those cases.  
As for me, however, I know what I would have done if I had been presented with that choice in October 2010.  I would have chosen guilty pleas and closure.  The $6 million, quite frankly, is and was beside the point.  It had been spent, and there was no chance of getting it back.  
So, John, I look forward to your answer to this question.  And I will watch you with interest in your new role.  
PS.  Does $6 million in defence costs feel like a lot to pay for a couple of convictions?  Most certainly.  It makes me angry just to think of it.  But governments don’t run criminal trials; lawyers and judges do.  Don’t blame government for the $6 million.  Blame the justice system.  Congratulate the government for having had the wisdom and the courage to seize an opportunity to bring the case to an end. 

Monday, 26 March 2012

A court challenge to Bill 22 may be inevitable, but it won't improve public education

Last week the BC Teachers' Federation announced that it would launch a court challenge to Bill 22, the legislation which temporarily has brought an end to the teachers job action.
The details of the legal challenge have not been made clear.  One of the regional teacher association representatives was quoted in the media saying “It is necessary to challenge this damaging legislation. It’s necessary to challenge it from all angles.”
But almost certainly the challenge will be constitutional, based on the argument that Bill 22 violates the protection for collective bargaining which the Supreme Court of Canada established in the 2007 Health Services decision.  
The teachers are angry, and Bill 22 has limited their options.  But that’s not the only reason why a court challenge is inevitable. 
In Health Services, the Supreme Court of Canada held for the first time that the Constitution of Canada protects the process of collective bargaining.  Fair process is an important value.  But when it is expressed as a constitutional principle it has certain consequences.  This is because it is much easier to create a right than to define its limits.  More specifically, it’s hard to state clearly how much process is required before it can be said with certainty that fairness has been achieved.  
Process requirements are usually expressed in general terms.  For example, “the parties must discuss in good faith the issues each brings to the table”.  The application of a general principle to specific cases will always be somewhat uncertain.  How much discussion? What issues? Does “good faith” mean you have to agree? This in itself tends to encourage litigation.
Moreover, because in this case the right is constitutional, the ultimate arbiter of whether there has been “enough” process is the courts.  This further increases the likelihood of litigation.
Why?  Well, take the case of public sector collective bargaining.  One party, the union, makes demands that the other party, government, believes are unwarranted or unaffordable.  Bargaining begins.  How - or, more precisely, when - will it come to an end?  The parties may of course negotiate an agreement.  But what if the parties’ positions are firmly entrenched?  How will bargaining ever end?  In the days before Health Services, the answer was that the parties could simply leave the table and use the tools of job action or lockout (or legislation) to try to force the other side to come to terms.  But that becomes much more complicated when there is a constitutional requirement to bargain in good faith.  Now the union has another hammer – the threat of a court challenge to the fairness of the process.  This creates a significant incentive for government to stay at the table even if no progress is being made, because as long as the parties are willing to keep talking, it’s harder to argue that the process is unfair.
The process right will therefore tend to lengthen the bargaining process.  That makes it more expensive.  And the prospect of a court challenge tends to create at least some pressure to settle on terms more favourable to the union.  However, if government manages to resist this pressure, and no agreement is reached, then the union is almost bound to litigate.  Why would they not?  
It’s worth pursuing the point a bit further.  The objective of collective bargaining legislation is to create a framework within which employers and employees can negotiate the terms and conditions of employment.  The best collective agreements are those that are freely negotiated, because the parties then own both the process and the agreement.  It is, if you will, a process of mutual self-determination and self-governance.
Legislation which imposes an end to the dispute disrupts these objectives.  Parties have less sense of responsibility for an agreement they did not themselves create.  Legislation also makes it harder for the parties to use their successful negotiation as a foundation to help make the employment relationship work.  
You could argue that this is a good reason to impose a constitutional requirement for fair process in collective bargaining, because there’s a greater likelihood of an agreement being reached if the parties are required to bargain in good faith.  But unfortunately, the introduction of a constitutional requirement may have the opposite effect.  For the same reason that legislation undermines collective bargaining, by taking away the parties’ control over (and responsibility for) the outcome, so, too, does the prospect of a court challenge.  Introducing the courts as second-guesser necessarily displaces self-determination.  When things aren’t going well, the parties now can complain to the courts.  The result, perversely, is that it may become harder to reach agreement.  Ironically, in the name of protecting collective bargaining, the Supreme Court of Canada in Health Services may actually have undermined it. 
There’s one more reason why litigation in this situation is inevitable.  As I have suggested, the challenge to Bill 22 will almost certainly be founded on the Supreme Court of Canada’s Health Services decision. The Court made it clear in that case that what it was doing represented a significant departure from the law as it had been.  The immediate consequence of any new statement of law by the Supreme Court is more litigation.  Litigants, lawyers, and lower courts get busy applying, testing and expanding the new principle.  Sometimes the result is that the Court is later required to “clarify” its original judgement, to try to calm the waters by saying, in effect, “this is not what we meant”.  But whenever the Court introduces a new principle of constitutional law, in particular a new process principle, the result is more, rather than less, litigation.  
So a court challenge to Bill 22 is inevitable.  Will it make anything better for teachers or students?
At the heart of the current round of teacher bargaining are questions about the allocation of public resources, teacher compensation and education policy, including class size and class composition.  These are important and difficult questions.  None of them will be resolved by a court challenge to Bill 22.  
Judicial interpretation of the Charter has changed the way we deal with complex, multi-faceted, public policy problems.  It has encouraged us to ask lawyers to turn policy issues into Charter issues and to resolve them in courts rather than the Legislature or ballot box.  Thus the Charter’s express recognition of “freedom of association” has, thanks to Health Services, become “a constitutional right to the process of collective bargaining.” You could be forgiven for wondering how the “freedom” to associate became the “right” to compel government to bargain in good faith with unions, but that just illustrates the lengths to which courts are willing to go to use the Charter as an instrument of social policy.

However, there are still limits.  Health Services created a right to the process of collective bargaining, but not to an outcome.  A court challenge to Bill 22 will focus on the negotiation process, not on whether government should pay teachers more, or reduce class sizes, or adjust class composition.  At the end, the court will either hold there was enough process, or it will order more negotiations (or strike down Bill 22, which would have the same effect).  
I would hazard a guess that even if a court orders more negotiations, the position of the government on the fundamental issues will remain firm.  Abandoning the net zero mandate in these negotiations would cause a re-opening of as many as 140 other collective agreements that government has negotiated with other public sector unions.  That seems unlikely.  
Here, too, in my view, the Supreme Court of Canada has something to answer for. They have constitutionalized a process right, intending to make collective bargaining fair.  But unions don’t just want fair process, they want better terms and conditions of employment for their members.  Health Services has made public sector collective bargaining more complicated and more expensive.  It has encouraged recourse to the courts.  But it has not made it easier to resolve education funding and policy issues; it’s actually made it harder.  There will be a court challenge to Bill 22, no doubt, but it begs the question: how will litigation improve public education?

Sunday, 25 March 2012

Talking about net zero: Sometimes it's not what you say but how you are heard

The most successful communicators understand not only what they want to say, but how it will be heard.  This is rarely easy.  It is particularly hard when the listener does not trust you.  Sometimes what you say, even with the best of intentions, makes things worse in ways you haven't thought of, all because you forgot to ask yourself how your words would be understood by your audience.

Perhaps, therefore, one of the reasons that the current round of teacher bargaining became so polarized, so intractable, so quickly, lies in a single phrase: “net zero”.   

What government means when it uses this phrase is not that nothing is available at the bargaining table; it is that improvements and concessions must balance out to even, so that, overall, the negotiated agreement imposes no additional costs.  The key word in government’s mind is “net.” That’s the word government wants the public and particularly public sector union negotiators to hear.  It’s code for the parameters of give and take that government is willing to consider in the current round of bargaining.  Within those parameters, dozens and dozens of public sector labour agreements have been negotiated by parties expert in the details of where to ask and where to give.  In that world, the union leaders understand what “net” means, and they have found their way to agreement.  Reluctantly, to be sure, but agreement all the same. 

But when I listen to teachers express their frustration with every aspect of the current contract dispute I think maybe they didn't hear the “net”.  They just heard the “zero”.  And “zero” sounds and feels like a stone wall.   

Perhaps it’s not a surprise that they are so upset?  Of course there's more to it than that.  Much more.  I'm certainly not suggesting that the result would have been the same if only different terms were used  But we may never know what could have been achieved in creative, problem-solving negotiations because one side to the discussion thought it was all about the zero and not about the "net".

Net zero may not have begun life as a slogan.  More likely it was intended simply as a clever shorthand for government’s public sector bargaining objectives.  But that’s not how it was heard by the teachers.  The lesson here?  Sometimes it’s not just what we say, but how others hear it, that determines which policies will persuade.

Saturday, 17 March 2012

The three chief judges' statement on judicial independence: hear no problem, see no problem, speak no problem

(An edited version of this post appeared in the op-ed pages of the Vancouver Sun on March 20, 2012:

On a Sunday afternoon last August in Halifax, Governor General David Johnston made an extraordinarily thoughtful speech to the Canadian Bar Association’s annual legal conference.  The Governor General, by profession a lawyer, a legal academic and a university president, spent almost no time congratulating the bar for all of its wonderful achievements, and instead dared the country’s lawyers to imagine what their role could be in making Canada a “smarter, more caring nation” as we approach the nation’s 150th anniversary in 2017.
He described the challenge in these terms:
We live in rapidly changing times. I often illustrate today’s pace of change by saying it took three centuries for the printing press in 15th century Western Europe to reach a majority of the population and reinvent that society. By contrast, it took the Internet only ten years from the turn of the century to reach a majority of the world’s population. We all recognize the changes taking place. But we must go beyond this understanding. We must also be willing to embrace and adapt to change. We must scrutinize our social contract—both with the public and internally—to ensure that we stay relevant—that is, stay just—and continuously strive for the good.
Looking forward to the different ways in which lawyers might meet this daunting challenge, he offered a comment on the role of the courts.  The passage is worth quoting from at some length:
Let me now turn to a contemporary instance in which the administration of justice cries out for improvement: in the administration of our courts themselves....Although I have focused on court delays in Ontario, wide discrepancies exist all across Canada, both in our criminal and civil justice system. Why? Interestingly, Anthony Doob suggests that reducing these delays would require a hard look at what he calls “court cultures”; that is, “shared expectations about how things should work” among judges, the accused, defence counsels, Crown attorneys and legal aid. In addition to understanding these cultures, a shared willingness is needed to work towards ensuring a fair, equitable and speedy end to each case, for the benefit of the individuals involved, the legal system itself and society as a whole. We need to bring a sense of urgency to that shared culture and redefine professionalism.Judges, in particular, can help in our effort to reduce delays and improve the administration of our courts, by lending their expertise and authority to this important matter. As the individuals entrusted to preside over our courts, judges have a responsibility to ensure justice is served in all its forms, not solely when it comes to delivering judgments. 
The speech is inspiring for its insight into the challenges faced by the justice system, and the urgent need for legal professionals to take a leadership role in addressing these challenges.  
But it is even more unusual because not once does the Governor General say that the answer to what ails the justice system is more money, more lawyers or more judges.  In the final analysis, his message is eloquent, but blunt: 
To borrow a saying from a sister profession: physician heal thyself.
I have been reflecting on these words over the past couple of days as I have read, and re-read, the March 15, 2012 statement on judicial independence of BC’s three chief judges.  
It’s rare to get the chief judges of the province’s three courts to agree on anything; still rarer to imagine them joining voices on single statement.  
But if you were hoping that the three chief judges would have echoed the Governor General’s clarion call for a “shared willingness” to work towards a new approach to our justice system, you would be disappointed.  There is not the slightest suggestion anywhere in the five pages that there is a problem with the justice system.  No evidence that these senior members of the judiciary are even remotely aware of the growing crisis of public confidence in the administration of justice, let alone the role courts play in contributing to it.
No.  Instead of recognizing that, as the Governor General said, the administration of courts “cries out for improvement”, they have chosen instead to read us a lecture on judicial independence.
It’s almost tragic that in this rare moment when the provincial government is willing to pay just enough attention to the justice system to create a reform initiative, equip it with a thoughtful green paper, and send one of the province’s most respected lawyers out with a mandate to look for solutions, the province’s three senior judicial officials go out of their way to make sure we understand how unhelpful they intend to be in this process.    
Supreme Court Chief Justice Bauman has been quoted in the newspaper saying:
I don’t criticize politicians for not understanding these central concepts [judicial independence]. I’m frank in saying many in the legal profession don’t understand them either or get what they mean.
With great respect I have seen no evidence that politicians [and lawyers] do not understand judicial independence.  A couple of provincial politicians lately have been critical of the courts.  But there’s nothing in the principle of judicial independence which prevents citizens from expressing their view on the way judges do their job.  For the judges to see such criticism as warranting this full-scale-man-the-barricades defence of judicial independence is really quite astonishing. 
I don’t quarrel with the need to understand how our own constitution works.  Judicial independence is indeed important.  But, as I like to say in this blog from time to time, a little perspective is useful.  For example, take the following passage from the judges’ statement:
To preserve judicial independence, the Constitution of Canada requires three things:
1. Security of tenure: Once appointed, a judge is entitled to serve on the bench until the age of retirement, unless, for Superior Court judges, both houses of Parliament agree that he or she should be removed from office, or for Provincial Court judges, a tribunal established under the Provincial Court Act has ordered that he or she should be removed from office. 
2. Financial security: Judges are paid sufficiently and in a manner so they are not dependent on or subject to pressure from other institutions.
3. Administrative independence: Courts must be able to decide how to manage the litigation process and the cases judges will hear.
I would like to make three points about this passage.
Point 1.
The passage begins, “To preserve judicial independence, the Constitution of Canada requires three things.”
Well, in fact the written documents which constitute the Constitution of Canada say nothing about these three things.  In fact our Constitution contained no express reference to judicial independence until 1982, and that is a reference only to criminal proceedings (section 11(d) of the Charter).  The three specific elements quoted in this paragraph have all been read into the constitution by the judges during the course of their interpretation of the written constitution over the past century.  I make this point in part because some of this case law is quite controversial.  Indeed, the leading case in this area is one of the most heavily criticized decisions of the Supreme Court of Canada. (The Provincial Court judicial compensation reference case.)  So, just to be clear, it’s not that the Constitution of Canada requires these things, it’s judicial decisions that require these things.  
Point 2
The judges point out that financial security is a required element of judicial independence.  Canadian courts have indeed said this.  However, it is interesting in this context to note that in the United Kingdom, the source and well-spring of our legal traditions, approximately 95% of all criminal cases are decided by lay magistrates who have no legal training and work for free.  So, to state the obvious, financial security may be required for judges in Canada, but it’s certainly not a universally essential precondition for the rule of law, democratic freedom, or the protection of human rights.
Point 3
As the three judges point out, security of tenure is another element of judicial independence as it has developed in our country.  But it is not a required element of the judicial system in the United States, where a great number of cases are decided by judges who are elected, and therefore have no security of tenure whatsoever.  And please don’t tell me that the United States is not a country that generally adheres to the rule of law, respects democratic freedoms and human rights.
Of course, these points do not speak directly to the third element of the judges’ list, namely “administrative independence.”  Space does not permit a full critique of the judges view on this point.  Let’s just say it is a highly contested issue.  It is a recurring source of tension in the relationship between the courts and governments in every province in Canada.  Governments in our country do not want to tell judges who should sit on cases.  But the idea that any participation by government in judicial administration is a violation of judicial independence is a bit of a stretch.    
But in the end, the question is not so much whether the three chief judges’ own view of judicial independence is over-stated.  The real question is why they have gone to such lengths to set themselves up as opponents of reform.  Without their active participation and leadership, any attempt at reform will be difficult, to say the least.  In truth, nothing in the current reform process is the slightest threat to judicial independence, reasonably understood, and yet, for some inexplicable reason, the judges have chosen to see it as a threat and to insist that they will participate, if at all, only on their own terms.
More’s the pity for that.  In the long run, judicial independence is worth defending only when those who hold judicial office see it, humbly, quietly, not as an entitlement, but as a privilege to be earned every day by hard work and the responsible and efficient exercise of judicial power. 
Like David Johnston, most Canadians know that the administration of justice is crying out for improvement and that real reform requires an active, contributing, constructively engaged judiciary.  Not, apparently, BC’s three chief justices.

Friday, 16 March 2012

Just wondering: how is it possible to leak an email from a reporter?

Yesterday Harry Bloy resigned from Cabinet because he “leaked” a “private email” from a Province newspaper reporter to the subject of the reporter’s investigation.  As soon as this became known, the NDP decided to demand the resignation of Advanced Education Minister Naomi Yamamoto for providing Mr. Bloy with the email. 

Well, I’m not going to defend what Mr. Bloy did, but there a few things that need to be said.  First, the email wasn’t private, and therefore it could not be “leaked”.  Second, there is no basis for criticizing Minister Yamamoto for her role in this.

When I was first elected to public office I received media training.  Among the things I was taught were the following:  Do not expect that any conversation with a reporter is ever off the record.  And when you speak or write to a reporter, try to picture your words on the front page of the newspaper.

In other words, when a politician deals with the media, he should assume it’s all public, all the time.

That’s as true of an email sent by a reporter to a minister’s office as it is of a question asked by a reporter in a hallway scrum.  

And if the answer to the media question is public, so is the question.

In this case the email was not about a purely personal matter.  It was about the reporter’s interest in a subject of public importance, namely the business integrity of the operator of for-profit post secondary education institutions.  The whole point of the reporter’s inquiry was to get information that would form the basis of a news story.

Moreover, the email was not from a law enforcement official.  It was not an enquiry from a regulatory body seeking information from the Minister of Advanced Education that related to the exercise of statutory responsibilities.  It was an email from a newspaper reporter.

Yes, the newspaper was “investigating” the Eminata Group.  But a newspaper “investigation” is no different from an investigation you or I might undertake.  It has no special privilege or place in the law or anywhere else.  Its only significance is that when a newspaper reports the results of its investigation, it gets a lot more attention than if you or I were to do so.

Because the email was never actually private, it could not, I suggest, be “leaked.”  Using that phrase in this context is more than a bit pretentious.  But let’s look at what happened to it, one step at a time.  

First, the Minister of Advanced Education, Naomi Yamamoto shared the email with Mr. Bloy, who was her Cabinet colleague.  I hope no one seriously thinks there was anything wrong with that.  

If a newspaper reporter asks a question of a Cabinet minister about something that might form a media story critical of government, you should expect the minister to share it with her Cabinet colleagues, her officials, her political staff and government communications people.  That happens every day.  And it’s both defensible and necessary.  After all, government is not just one person, let alone one Cabinet minister.  It’s a team.  That’s what we mean by the principle of collective responsibility.  Every member of Cabinet has an interest in the business of government and a reason to talk with their colleagues about the problems and challenges they face.  

Any criticism of Minister Yamamoto for giving the email to Mr. Bloy, her Cabinet colleague, is risible.  The suggestion yesterday by the NDP that she should resign may have sounded like fun in the heat of question period, but it is evidence that the NDP are not, shall we say, quite ready for prime time. 

Second, was it wrong for Mr. Bloy to give the email to Peter Chung, founder and executive chairman of the Eminata Group, and, according to media reports, a donor to the BC Liberal Party?  According to the Province newspaper reporter who has been pursuing the story, Dr. Chung had the email in his hand when the reporter came to interview him.

I don’t think this is anything like a “leak”.  Of course, from the reporter’s perspective, I can understand the upset.  Dr. Chung may have had advance notice of the topics of the interview.  An opportunity to prepare? God forbid!  

But let’s take the issue one step further.  What would be wrong, for example, with the government posting on its website every single media inquiry it received?  As a matter of law there is no privacy attached to such inquiries.    (Government might need to edit out references to personal information that could not legally be disclosed under privacy legislation.)  The media could hardly complain.  After all, it’s the media that routinely complains about government’s lack of transparency.  What could be more transparent than publishing every single media inquiry?  Easy to do in a digital world.  Government would then have to explain why it only answered some questions and not others.  Lots more transparency and accountability there.  

Of course, once government posted the Province reporter’s email, Dr. Jung would have been able to read it and prepare himself for the inevitable questions.

Unfortunately, that’s not what happened here.  This appears to have been a case of selective disclosure.  Instead of making the inquiry known to the whole public, the email was apparently given directly to Dr. Jung.  And Dr. Jung is - at least according to media accounts - a party donor and a friend of Mr. Bloy’s.  That looks too much like Mr. Bloy was doing a favour for a friend.  That is what was inappropriate here, and it is a good reason to resign.

But don’t claim this was something it wasn’t.  The email was not private, it was not leaked, and it was perfectly appropriate for Minister Yamamoto to share it with her colleague.

Wednesday, 14 March 2012

Bill 22 and the Supreme Court of Canada's adventures in labour law

As Bill 22 winds its way towards a final vote this week, and BC prepares for the next chapter of the current teachers’ contract dispute, I have been reflecting on what a dreadful mess the Supreme Court has made of public sector collective bargaining and the Charter of Rights and Freedoms.
The story begins with one of the most controversial pieces of legislation in the first term of the Gordon Campbell government, in which I was Attorney General, the infamous Bill 29 of 2002 (the Health and Social Services Delivery Improvement Act).
At the heart of this bill were provisions that rewrote - “stripped” - existing collective agreements in the health sector.  Its justification lay in the fact that the previous (NDP) provincial government had negotiated unaffordable agreements with these unions.  In our drive to restore the province to fiscal health, we decided that it was necessary to reduce health care workers wages; the tool chosen to do this was legislation.  
To add to the controversy that such a move would naturally create, we had promised in the 2001 election that we would not do this kind of thing.  So the outrage was compounded.
In our system of government, the central image - and foundation - of accountability is the ballot box.  When government strays too far from the will of the people, it is punished by the voters.  When this principle works, it is a marvel to behold.
In this case, the principle worked.  We were elected in 2001 with 77 of 79 seats.  Bill 29 was enacted a year later.  In the 2005 election, the voters responded with their verdict on four years of BC Liberal government by electing only 47 BC Liberals, a drop of 30 seats.  Though re-elected, the BC Liberals were clearly punished.  
By this time, however, a court challenge to Bill 29 had been launched, and it continued to wind its way through the system until it reached the Supreme Court of Canada.  The Court’s 2007 decision is known as Health Services and Support - Facilities Susbsector Bargaining Assn. v. British Columbia.
To summarize, the Supreme Court overturned 20 years of its own jurisprudence, and for the first time in Canadian history created constitutional protection for the process of collective bargaining.  It then applied its newly-minted principles to Bill 29 and decided that the legislation was in part unconstitutional and several of its provisions should be struck down.  It then suspended its order for a year to give government an opportunity to address the repercussions of its decision.
The foundation for the successful union argument was section 2(d) of the Charter of Rights and Freedoms, which says that everyone has the fundamental “freedom of association.”
The basic framework for the interpretation of section 2(d) in the context of labour law had been established by the Supreme Court of Canada in a series of decisions over 20 years.  Several attempts had been made to try to “read” protection for collective bargaining into section 2(d) and in each case the Supreme Court rejected the argument.
It is not the practice of Canadian governments to introduce legislation which is known to be unconstitutional.  And it gives no secret away to suggest that, whatever the labour relations politics of Bill 29, there could be no question at the time of its introduction that it was constitutionally sound.  Twenty years of Supreme Court of Canada decisions made that clear.
But in the Health Services case the Supreme Court of Canada turned the constitution on its head.  It violated a basic principle of the rule of law, namely that the law must be predictable and certain.  
When the Court overturns itself - and in this case we are talking about three recent decisions almost directly on point, not a dusty shopworn precedent from half a century ago - it undermines everyone’s ability to plan their lives.  Why?  Because you don’t know what the rules are.
This was not a case where the rule in question was uncertain.  It was perfectly clear.  It’s just that the Court decided to change it.  Nor was it a case where there was an overwhelming public consensus that the previous twenty years of decisions were seriously out of line and a modest re-alignment was necessary to get the jurisprudence back on track.  No, the question whether section 2(d) of the Charter should be extended to protect collective bargaining was highly contentious and vigorously debated.
The Court’s decision required government to consult with affected unions before enacting legislation that might affect their collective bargaining rights.  As a principle of political practice, the idea that government should consult during the development of public policy is a good one.  But converting good political practice into binding constitutional law is something else altogether.
The government, as I have said, had already paid the political price for politically controversial legislation.  There was absolutely no need for the Court to punish government still further by inventing a new constitutional principle of labour law.
What’s worse, the reasoning supporting the Court’s decision is, to put it generously, vulnerable to criticism.  A subsequent decision (called Fraser), just 4 years later, contains one of the most trenchant criticisms ever written by a Supreme Court justice, albeit in a concurring minority decision.  I will discuss this judgement in a subsequent post.
For all its flaws, and for now, the Health Services case remains the law.  It was subsequently invoked and applied in a trial court decision that overturned two critically important (and also highly contested) pieces of education legislation from 2002, Bills 27 and 28.  The Health Services decision is the ghost that haunts government as it tries now to bring an end to the teachers’ contract dispute.  
It is the reason negotiations, and even the debate on Bill 22, have taken so long.  In the case of the current legislative debate, you could even argue that we are seeing a classic example of the law of unintended consequences: a court decision intended to change public sector labour law now lengthens legislative debate for several weeks, preventing the Legislature from doing any other business that might also be important to the public welfare.
There is no partisan pleasure here.  Whichever party is in power, Health Services governs public sector labour relations in BC (and the rest of Canada).  By introducing enforceable process rights into public sector wage negotiations, the Supreme Court has enormously strengthened the hand of public sector unions as they make demands upon a fiscally-constrained public purse.  This is because process necessarily creates expense, delay and uncertainty, all of which tend to pressure governments to settle at higher amounts than might otherwise be negotiated.  
But important as that is, there is something much more fundamentally worrisome about this decision, because it suggests that there really is no certainty in even the most deeply entrenched principles of our law.  And in the long run, that is far more troubling than the provisions of any single bill.  
If I were advising the BCTF on their strategy post-Bill 22, I might be saying, be careful what you wish for.  A court that can change its mind once can change its mind again.  Wouldn’t it be ironic if the case which undid the Health Services decision came as result of a court challenge to Bill 22?

Thursday, 8 March 2012

Justice for the Tsihlqot'in is taking a very, very long time

In a previous post I suggested establishing time limits for judicial decisions as a potential justice system reform.

The introduction of time limits would recognize that unwarranted delay in issuing a decision is potentially as corrosive of public respect for the justice system as is delay in getting to trial.  

Of course, legal disputes come in all different shapes and sizes.  But clients have come to court for a decision and should not have to put their lives on hold while they wait for an answer.  In addition, some cases raise questions of general importance, where a delay in delivering the decision may actually contribute to economic and political uncertainty.

That brings me to the case known as Tsilhqot’in Nation v. British Columbia.

This case, which has its origins in a lawsuit filed as long ago as 1990, is a claim by the Xeni Gwet’in First Nations Government and the Tsilhqot’in Nation for aboriginal title to their traditional territory in the Cariboo-Chilcotin region of British Columbia.  

The Xeni Gwetin are known for the wild horses who roam in their traditional territory in the Nemiah Valley.  The Tsilhlqot’in, a larger tribal grouping that includes the Xeni and other First Nations, are probably best known for their sustained and vigorous opposition to the Prosperity Mine development west of Williams Lake.

The trial of this case occupied 339 days between November 18, 2002 and April 11, 2007.  It was a long trial because claims for aboriginal title require a detailed examination of the historic and contemporary use and occupation of claimed territory - and in this case the area under claim is many thousands of hectares.  

Reasons for judgment were issued by Justice David Vickers on November 20, 2007.  The reasons are literally a book - 1382 paragraphs occupying 473 pages - and they contain not only an exhaustive analysis of the evidence, but an extensive discussion of the law.  

In the end, the judge dismissed the case because, in his view, the way the case had been pleaded by the plaintiffs precluded a finding of aboriginal title.  But he went on to conclude that if the case had been differently pleaded, he would have made a finding of aboriginal title over extensive portions of the claim area.

This case is profoundly important.  It is obviously important to the Xeni and Tsilhquot’in, who have been fighting this case for over a generation.  

More generally, the case raises two critically important questions which affect land and resource development across the whole province:

 How “big” is aboriginal title?  

There is a continuing disagreement about whether, in the most general sense, aboriginal title extends over the whole of a First Nation’s traditional territory (this is sometimes called the “mountaintop to mountaintop” theory), or only the most intensively occupied parts of that territory, such as their villages (the “postage stamp” theory).  

This question is much debated in the legal community.  It’s hard to believe that a question like this could remain unresolved after all these years, but the fact is that every time it looks like there is some clarity, clever lawyers find ambiguity in the way a judicial conclusion has been expressed, and so the issue remains alive.

In overly simple terms, the resolution of this issue could lead to a conclusion that substantially all of British Columbia is subject to aboriginal title, or alternatively that aboriginal title will mainly be found in and around Indian reserves.  

Justice Vickers took what some would characterize as the more expansive view of aboriginal title.  Not quite “mountaintop to mountaintop” perhaps, but something close to it. 

Can the province legislate on aboriginal title lands?

Justice Vickers held that the Forest Act of British Columbia did not apply to aboriginal title lands.  In his view, the federal government has exclusive legislative authority over aboriginal title land because of its authority over “Indians and lands reserved for the Indians” under section 91 of the 1867 constitution.  

This proposition is also highly contested.  In practical terms, if Justice Vickers’ approach prevails on both points, large areas of British Columbia would become federal enclaves.  This would have enormous consequences for forestry, mining, energy development, and agriculture, all of which depend on provincial leases, permits and licences.  If those tenures are all invalid, it will take some creative ingenuity to figure out how to maintain our economy (and sustain provincial government revenues), to put it mildly.

The trial decision was appealed on all issues.

The appeal did not proceed immediately for several reasons.  There were discussions about legal funding and there were also some attempts to resolve the issues.  But eventually the case was heard by the BC Court of Appeal. 

The appeal was argued over 6 days in November 2010.  Sixteen months ago.  Judgement has yet to be delivered.

As I have tried to explain, the stakes are high.  No matter what the outcome, the case is probably headed to the Supreme Court of Canada.  The trial judge dismissed the case on the basis of what many would call a legal technicality.  Overturning that technicality and accepting the rest of his decision would have a real and immediate impact on land and resource use in BC.

It must be acknowledged that this is a quite extraordinary case in terms of the volume of evidence and argument that the Court of Appeal has to read and interpret.  So no one could plausibly complain if the court took several months to reach a decision (The trial judge took seven months.).  And it’s also true, regrettably, that this case has taken so long already, that a further delay seems unsurprisingly inevitable.  That’s the corrosive effect of delay.  Sooner or later, we adjust to it.  But that doesn’t excuse it.

Even allowing for all of that, it has to be said, and someone has to say it, that sixteen months is too long for the Court to deliver its judgement in this case.  It’s too long for the Tsihlqot’in to wait.  And it’s too long for all British Columbians to have the certainty they deserve on these profoundly important questions.