Tuesday, 8 December 2015

We want an open government but we're far too critical for it

The Globe and Mail published this today:
Perhaps you are one of those people who wonders why government seemingly goes out of its way to conduct business behind closed doors? If so, read on.

Last week there was a news report about a proposed new physics curriculum for high school students in BC. A draft of the curriculum was circulated for comment. The document very plainly was not a finished product. It was a draft. Government wanted input. As in, help us revise this document so that the final version is the best it can be.

That’s not the input they got from a physicist at Simon Fraser University named Steve Dodge. Rather than try to improve the document he went public. He slammed it. He called it “slapdash”.

Here is a case where government deliberately sought public input on an important policy initiative. And what government gets is not thanks from citizens for the opportunity to offer their thoughts, but a sharp kick in the backside.

If you were in government, how keen would you be about the next opportunity to share a draft document with the public?

Now to be fair, some folks, such as BCTF president Jim Iker, and Grahame Rainery, the president of the BC Science Teachers Association, welcomed the opportunity to comment on this draft curriculum. Someone even pointed out that drafts like these would not normally have been released, but the Education Ministry decided it would be a good idea to routinely post such material to solicit feedback.

I don’t mean to pick on Professor Dodge, and this is not a column about how to improve our high school physics curriculum. It’s a column about how we get the government we deserve. In particular, we say we want open government, but there’s ample reason to doubt we would ever actually know what to do with it. Is open government about looking for fun new ways to embarrass politicians, or is it about giving ourselves as citizens the tools to improve how we are governed?

You won’t get much help from political commentators on this question. On Mondays, pundits shake with indignation when government officials dare to delete emails. On Tuesdays the same pundits fall all over themselves in a rush to embarrass government officials over the contents of those emails.

When I ran for office, Gordon Campbell made a promise to permit free votes on anything that was not (to use the formal term) a matter of confidence. Members of caucus exercised that right from time to time. A government MLA would rise during debate on a government bill, explain why he or she was going to vote against it and then do so. The headline the next day was never, “Premier keeps his promise to permit free votes.” The usual headline was a version of, “BC Liberal caucus hopelessly divided.” In short, the media both demand openness and punish it.

This may come as news to you, but governments are composed of human beings. When the result of daring to conduct a preliminary policy discussion in public is that the initial work is dismissed as slapdash, we shouldn’t be surprised if government takes policy discussions back behind closed doors. Not because politicians have easily-bruised feelings. But because experience too often teaches them that people don’t have much to offer except criticism.

It doesn’t have to be this way, of course. But we will have to want to change it.

Tuesday, 24 November 2015

My thoughts on the federal government's refugee settlement announcement

As published in Wednesday's Globe and Mail:

In these first weeks of the new Liberal government, few issues have captured more attention than Prime Minister Justin Trudeau’s election promise to bring 25,000 refugees from Syria by the end of the year.
Was this target ever practically achievable? Should it be re-thought, particularly having regard to the Paris terrorist attacks, and the possibility that a massive influx of new refugees would strain our capacity to ensure that no one who represents a security threat manages to gain safe harbour in Canada?
With Tuesday’s announcement delaying the timetable for completion by two months, it’s now time to mark the difference between two kinds of questions. First there is a question of policy. Should Canada expand its admission of Syrian refugees, and if so, how many and on what timetable? Then there is a question of politics. The Liberals promised 25,000 more Syrian refugees by year-end. They imposed the deadline. They won’t meet it. Will we now congratulate them for having had the wisdom to adjust their commitments to ensure they can be properly implemented, or simply attack their promise-breaking?
Put another way, once elected, is it the promise that matters, or good policy?
I have no doubt about the answer to the question. Governments are elected to make good decisions, and to persuade the citizens of their merits. They should govern according to clear and consistent goals and principles. They should make and keep credible, responsible promises that will advance those goals and principles. They should also change course when the evidence calls for a different approach.
As was famously said by the British economist John Maynard Keynes: “When my information changes, I alter my conclusions. What do you do, sir?” But Mr. Keynes, of course, was never elected to public office, and never required to revisit an election promise, particularly one made in a campaign that concluded only a few weeks earlier.
It is interesting that the federal Liberal policy platform document attached no timetable to the Syrian refugee commitment. The written promise was “to expand Canada’s intake of refugees from Syria by 25,000 through immediate government sponsorship.” This was clearly a call to action. But a doubting public wants to know not just what a government will do, but when. So during the campaign, the promise became 25,000 new refugees by “year-end.”
The number was always ambitious, the timetable doubly so. We all know that sometimes we need specific targets to force us to complete difficult tasks. But this number was set high deliberately, to speak to the deeply held view of many that Canada needs to turn a more actively compassionate face to the world. In the continuing aftermath of the Paris terror attacks, as other countries publicly revisit their refugee policies, questions of national security are now interwoven into the already complex issues involved in large-scale refugee admission and settlement. So again, is it the policy or the promise that matters?
In 2001, I was a cabinet minister in the first term of the B.C. Liberal government. We were elected on a platform with hundreds of commitments, including a list of specific action items for the first 90 days in power. We worked our way through the list. Most promises were kept. Some were not. Still others were broken. What I found was that while we tried to take credit for the fact that we were keeping our promises, virtually no one cared or kept count. What people cared about was the substance of what we were doing, not the fact that we had promised to do it. And people also cared when we did something that was directly the opposite of what we had promised.
Broken promises matter more than kept promises. But in the end, voters want governments to make good decisions. You can test this proposition by asking yet one more question: What is it that voters will remember in four years about Canada’s commitments to Syrian refugees? I suggest the answer is this: We will remember that Canada significantly enhanced its role in responding to an international refugee crisis, and that thousands of refugees from the Syrian civil war were properly settled and have become our neighbours and fellow citizens. Partisans aside, most of us won’t remember whether the number of refugees was 25,000 or a bit more or a bit less, or whether they arrived in December or some other month.
I don’t know as much as I ought to about Canada’s capacity to identify and safely process and settle an influx of 25,000 new refugees from the hell that is war-torn Syria. But I do know this: To make bad decisions simply because they were promised is bad government. The first true political test of this new government may be that they have found the fortitude to do the right thing.

Wednesday, 18 November 2015

Wednesday night in Victoria

I am sitting in a hotel bar room in Victoria listening to a jazz piano version of O Little Town of Bethlehem.  The syncopation feels like an awkward fit.  It makes me wonder if there is a jazz version of Handel's Messiah? I try to picture folks in the back row of the choir snapping their fingers and scatting Hallelujahs.

There are a couple of girls on the other side of the room discussing their plans to drink their way through the dessert coffee menu while they take selfies in front of the Christmas tree.

November is like that. Hardly content to be itself, with its early dark, blustery cloudscapes and wind-blown leaves scattered on sidewalks, it can't wait to be December.

And to think, only a few weeks ago, it felt like Canada had rediscovered compassion. Now, apparently, many of us want to bomb somebody, somewhere, who knows who and who knows where, back into the Stone Age.  When in doubt, fall back on a failed strategy. It's so much easier than to have the courage to try something different.

For a generation we have fought terrorism as though it is a war that can only be won by pitting our guns and bombs against their guns and bombs.  It's not working. We need a different approach.  But alas, tonight, there are too many voices falling into the trap of over-reacting in exactly the way the terrorists want us to.  By assuming this is some kind of war for civilization instead of the desperate thuggery of a tiny ragtag collection of homicidal maniacs.

By all means, find those who perpetrated the violence in Paris, and punish them according to law.  And mourn not only for those who died in Paris, but also the children bombed by the gunship attack on the hospital in Afghanistan, and those bombed in Beirut, and the passengers on the Russian airplane.  But maybe, instead of just mindlessly ramping up the violence, let's see if there's something we can do to bring it to an end.

Saturday, 14 November 2015

Today my heart aches for the people of Paris

I am thinking this morning of Paris.

Late yesterday afternoon, I was in the car listening to radio interviews with people in Paris whose lives had just been touched or irretrievably altered by last night's terrorist attacks, people who were simply doing what we all might do on a Friday night, maybe out with a friend at a concert of their favourite band, eating a meal at a restaurant, or enjoying a soccer match.  There were harrowing stories of escapes and near misses, told from cell phones in darkened cafes and apartments.  The voices - even those of seasoned reporters trying to keep up with the developments - all had an unmistakable note of incredulity.  Everyone was describing what had happened, but the real question they were asking themselves was why.

When I first started travelling, Paris was famous among North American tourists for its boulevards and gardens and cafes and Notre Dame and the Eiffel Tower. It was also famous for its rude waiters.  Notoriously arrogant and condescending. Like all French people.  Or so it was said.

That has never been my experience.

The last time we were in Paris, we were on our way to hike in the Basque country, and we stopped first for a few days in Paris to get time zones caught up.  We stayed in a hotel on the Left Bank, near the Pantheon.  A lovely old hotel, with an elevator smaller than a phone booth and a room barely big enough for its bed.  Breakfast was served in the basement, under ancient stone arches.  Fresh croissants, of course. One morning we talked with our table neighbour, a university lecturer. He started a conversation, by asking us where we were from.  We asked him if he was visiting Paris, like us.  Not so, he said.  The night before there had been an open concert, with live music played at nearly every street corner in the city.  It was an annual event.  And every year, our table neighbour explained, there was a loud rock band stationed just underneath his apartment window, only a few streets away from here, and so he had taken to booking a room in our hotel that one night, every year, just to get a good night’s sleep. He laughed at the ridiculousness of the situation.  But really, if you had a couple of kids standing right below your apartment playing full volume head banging grunge rock at midnight, with a crowd gathered around shouting encouragement, you might start to wonder if there was somewhere you could get some sleep.

We were just tourists, but he was happy to share his story with us, and we were happy to listen and laugh along with him.  And Paris became not just a place to see, like a museum object you are allowed to admire but not touch, but a city full of people with real lives.

We walked.  In Paris, we always walk.  Paris is not just a city of streets, but a city that lives in its streets. On our first day, a lovely early summer blue sky day, we walked all the way to the Arc de Triomphe.  I remember sore feet, and a lovely hour in the house and studio of the painter Eugene Delacroix, now a museum.  Not far away, the crowds were milling about in the magnificent Musee D’Orsay, but we had M. Delacroix’s house pretty much to ourselves.

At the Arc de Triomphe there was a small memorial ceremony taking place, with some dignitaries in suits and military and families carrying wreaths.  I don’t remember the occasion, but it was a reminder that in Paris, history is everywhere around you, and some part of the past is always taking place right before your eyes.  We climbed to the top and admired the view, with all of the great landmarks spread out around us.

One evening we decided to head south east from our hotel, away from the major tourist destinations, in search of dinner.  We found a Greek restaurant on a quiet street in a residential neighbourhood.  There was a table for two outside on the sidewalk.  Jammed in between other tables.  We love Greek food, but this was a new experience: Greek food prepared by Parisian chefs, and with a menu that was simply indecipherable.  There was no “souvlaki” anywhere in sight.  I think I may have started fumbling for the dictionary.  The waiter was sure to arrive in a minute.  You know, a Parisian waiter.  He would be impatient with our incomprehension, and we would hang our heads and well, wait a minute.  The couple on one side of us, about our age, perfectly dressed as Parisians always are, took one look at us and instead of shrugging their shoulders at the amusing spectacle of tourists who had plainly found themselves in the wrong place, smiled and said hello and offered to help us understand the menu.  They were both professors at the Sorbonne.  Their English was as good as our French, and that’s always more than enough to get by.  So we started to relax, and I think the bread and wine arrived.  And then at the table on the other side of us a man reached under his table, pulled up a big bag, and then informed us all that he had been picking cherries that afternoon from the tree in his backyard a few streets away and thought we all might like to sample some.  So he passed the bag up and down the line of tables and we all enjoyed fresh picked cherries.

It was World Cup season, and France was making its way, game by game, to the finals.  There was a match that night.  In the shop windows and bars in the streets around us, you could see TV sets and hunched-over faces staring intently at screens.  And as the evening proceeded, whenever there was a big play, a goal or a great save, a roar overwhelmed the neighbourhood.  And we would all laugh and congratulate one another, and the bag of cherries would get passed around again, and we would marvel at the joy which is Paris and life.

It is unbearably sad this morning to think of what has happened in this beautiful city, with its wonderful people, all of whom must surely be asking themselves whether, after two such attacks in less than a year, they have lost something they will never get back.  Parisians are proud that theirs is the capital city of a major world power, and it’s impossible to keep the world at bay these days.  There is more than enough to think about, and learn, and eventually respond to, but for this morning anyway, I think I will simply grieve for Paris, the city of light, and its people.

Friday, 30 October 2015

John Furlong has the right to be proud of his life and work

The Globe and Mail published this on October 30, 2015.

Lost in the clamour of last week’s federal election was the quiet sound of a door closing. John Furlong’s hard-fought struggle to clear his name reached its conclusion. Stories like these do not have happy endings, but we can at least mark the occasion and pass judgment where judgment is due.
Last Monday, Laura Robinson, the journalist whose articles in 2012 created a firestorm that threatened to incinerate Mr. Furlong’s reputation, announced she would not appeal the B.C. Supreme Court’s decision to dismiss her defamation claim against Mr. Furlong.
Ms. Robinson’s articles claimed Mr. Furlong had misrepresented his past. That in telling the story of his family’s decision to immigrate to Canada in 1974, he had buried the story of an earlier time when he was a very young teacher at a parochial school for First Nations children in Burns Lake, B.C. And that, while at the school, he had abused students.
Ms. Robinson took direct aim at Mr. Furlong’s reputation as the man who had not only been CEO of the highly successful 2010 Winter Olympic and Paralympic Games, but someone who had, for the first time, included First Nations as partners in those Games.
Mr. Furlong quickly and vigorously denied the allegations. He sharply criticized Ms. Robinson’s journalistic practices. He accused her of a “shocking lack of diligence,” of holding a “personal vendetta,” a “two decade-long pattern of inaccuracy” and more.
Key elements of her story soon began to fall apart. The RCMP investigated. They undertook a wide range of interviews and inquiries. They discovered no reliable evidence to support the claims of abuse. For example, one former student had not even been at Mr. Furlong’s school when the alleged abuse took place. No charges were laid. Lawsuits commenced by alleged abuse victims were dismissed.
In due course, Mr. Furlong himself decided it was time for closure, and he dropped his own claim for defamation against Ms. Robinson. But Ms. Robinson was determined to clear her name from Mr. Furlong’s attacks. In essence, she put her journalistic integrity on trial.
She lost.
In a careful, methodical, 74-page judgment, without a single rhetorical flourish, Justice Catherine Wedge explains the law of defamation, analyzes the evidence and then finds that Mr. Furlong was entitled to respond as he did, and that he did not lose the right of verbal self-defence that arose when his reputation was attacked.
It was not necessary for Justice Wedge to decide whether Mr. Furlong’s criticisms were true, only that he was entitled to make them.
But her decision reads as a textbook on how not to do investigative journalism. She says at one point, “whatever [an] investigator’s professional credentials, he or she must be up to the task of determining, to the greatest extent possible, the accuracy of the information where guilt or innocence – or the reputation of an individual – is at stake.”
Justice Wedge spoke of the need to take the “greatest of care” to ensure the spontaneity and reliability of the statements of informants. Ms. Robinson had instead “telegraphed” her intentions, and “had no information from any independent source to support the allegations.”
At its best, investigative journalism can unearth important, hidden truths about misuses and abuses of power. The fearless pursuit of truth may sometimes cause collateral damage to reputations. Those whose reputations have been wrongly harmed have the right to sue for that harm. The law strikes a balance that recognizes the vital importance of vigorous public discourse, while imposing a measure of discipline intended to ground that discourse in fact, not fiction.
All of this requires journalists to work with skill, diligence and integrity. As the B.C. Supreme Court’s decision makes plain, that was not how Ms. Robinson did her work.
Last Monday’s announcement that Ms. Robinson would not appeal was both graceless and unrepentant, without even an acknowledgment of the brutal harm she had caused, not only to Mr. Furlong, but also those former students who were victimized by her zealotry.
But maybe at last, for John Furlong and his family, a door has closed. What they have gone through can never be taken back. It is appalling. No court judgment can fully undo the hurt.

Tuesday, 13 October 2015

Un-Canadian, eh?

The Globe & Mail published this on October 13.

A friend of mine once suggested that a good way to end a particularly troublesome media scrum would be to say, “That question is un-Canadian.”  His point was that Canadians are a polite respectful people, and that polite respectful people do not ask annoyingly difficult, even disrespectful, questions of politicians.

It was a cute thought, but I never took him up on it.  Better just to try to come up with good answers to all those pesky questions.

But in the last days of this long election campaign, there is another idea of “un-Canadianness” that is getting a worrisome amount of attention.

This is the idea that there are two kinds of Canadians.  Those who are, well, Real Canadians.  Just like us.  Old stock.  And those who are not.

And so it is being argued by Stephen Harper’s Conservatives that Real Canadians would not seek to hide their faces in public places.

And that what this country urgently needs is some sort of tip line so Real Canadians can report the “barbaric” cultural practices of our un-Canadian neighbours to The Authorities.

And that there are two classes of citizens: some whose citizenship can be removed for certain offences, and others who, being Real Canadians, might go to jail for their crimes but will always be citizens.

It is as if the one thing Canada needs most urgently at this time in place is not viable policies to remedy a persistently flagging economy, address the looming crisis of climate change, or restore Canada’s position of credibility in world affairs, but rather, a legislated dress code for citizenship ceremonies.

But it is much worse than that.

There is a principle which is truly fundamental to our country.  It is that we do not simply tolerate difference, we celebrate it.

We do not impose the values of one religion on all; instead, we respect religious freedom.  This protection is written into our Charter of Rights and Freedoms, the document that, more than any other, is the expression of our deepest values as a nation.

The constitution goes further than this.  A section which is quoted much less often reads, “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”  Not just the passive acceptance of difference, but its preservation and enhancement.

Hardwired into our nation’s system of government is the idea that we are not a seamless, homogenous whole.  We are instead a patchwork, a mosaic, a tapestry of different beliefs, customs and practices.  The idea is that these differences should not divide us, but rather unite us, within a constitutional framework that guarantees basic rights to all while fundamentally respecting - as liberal democracies must - our individual right to live our lives autonomously, freely.

This must surely include the possibility that some will hold religious beliefs that call them to modesty in public, even to the extent of veiling their faces.  There is, in fact, no difference between the Scottish born immigrant who wants to wear his kilt to his Canadian citizenship ceremony, and the Muslim immigrant who wants to veil her face.  Both want to become Canadian, to obtain full membership in a society that will not scorn their difference, but rather embrace it.

There are some who think otherwise.  Plainly, some of Stephen Harper’s Conservatives are in that group.  But we have seen these people before.  People who advocate for the creation of tip lines to rat on the behaviour of our neighbours are not much different from Joseph McCarthy and his House Committee on Un-American Activities.  Theirs is the politics of intolerance, fear and division.  Today we will be given the opportunity to phone the tip line.  Tomorrow we will be required to do so.

Some will say that this is simply a political strategy.  A late campaign attempt by the Conservatives to exploit so-called wedge issues intended to scare us into voting for them.

The problem, however, is this.  If we reward them now for their intolerance, we can expect more of it.

There are important issues in this election campaign.  The parties differ markedly on some, and not on others.  We can choose among different approaches to economic growth, environment protection, refugee policy, parliamentary reform.  It may be hard to see the differences sometimes through the noise of partisan rancour.  But it’s an election, not a tea party.

All except for this. The notion that what this country needs now is a politics that punishes cultural and religious difference, that classifies us into different categories of citizens, is profoundly wrong.  It is, in fact, un-Canadian.  We must reject it.

Thursday, 24 September 2015

I gave away my record albums today

Well, they’re gone now and I am left wondering if that was the right thing to do.  It didn’t take much.  I finally asked the right question of the internet, and found a phone number.  The lovely Miss Janee made the call, they were happy to be of service and today they came to the house and took them all away.

My record albums.

I decided I needed a very clean, very surgical incision.  So I didn’t even bother to count them exactly.  200.  250.  300.  Maybe more, if you include the 45s, like my copy of Tom Northcott’s 'Sunny Goodge Street', autographed by the artist.  And the Rolling Stones' 'Dandelion'. And Neil Young’s 'Sugar Mountain'.  And weirder and still weirder, Kenny O'Dell’s 'Springfield Plane'.  Who the heck was Kenny O'Dell?  All I remember is that line, Springfield plane is going to carry me back to my baby’

For a brief moment on Sunday afternoon, as the rain fell, and we cleared stuff out of the attic, I thought I would open the boxes and take a look.  I thought I knew what I would find. The soundtrack of my youth, of course. Sgt. Pepper's Lonely Hearts Club Band. Bookends. After the Goldrush. Sweet Baby James.  For Everyman. Bringing It All Back Home. Records every note of which is laid down in the basic wiring of my brain. I was twelve or thirteen or twenty three, and I had vast caverns of mindspace waiting to be filled with music.

She’s got everything she needs she’s an artist she don’t look back.  

Sailing heartships through broken harbours, out on the waves in the night. 

Sunny skies sleeps in the morning. 

When I think back on all the crap I learned in high school.

Ribbon of darkness over me.

I always think that everyone of my generation knows all these tunes and words and am surprised when they don’t.

But anyway I had to stop looking because what I quickly discovered was not what I remembered but what I had forgotten. David Essig. Whoa boy could he play.  Early Leo Kottke. Bruce Cockburn’s In the Falling Dark, and the hours I spent learning to play 'Festival of Friends' in the winter of 1976-77.  David Lindley’s El Rayo-X, an absolutely spectacular record whose tracks jumped out of the speakers like wild animals.  Keith Jarrett’s Staircase: I was never sure if it was the music or the album cover photographs. The Pousette Dart Band - I saw them play once in Harvard Square I think. Donovan’s A Gift from a Flower to a Garden. Well, I had not forgotten that; it’s just that seeing it in my hands again sent me somewhere quite else.

Running my fingers through my past I had to stop. I decided that I could not do this one at a time.  Or I would not do it at all.  These boxes have sat in the attic, the records inside them unplayed, for years now, and, thinking rationally, I am not going to take a trip back into vinyl time and rediscover the justifiably neglected tracks on the early Byrds‘ albums, or the strange moody indulgences of Emerson Lake and Palmer.

Time just to get rid of it all, and take my chances with the digital music archivists of the internet.  So today, while I was at work, the folks came and took the boxes away.  No fuss no muss - one more step along the road to a clutterfree world.

But right now I am thinking of those hours - days, really, weeks, even years, maybe - I spent listening to all those records and wondering whether I have just given away something I might someday wish I hadn’t forgotten to remember. Or something like that. I don’t want them back. I just don’t quite want them gone, either.

Like the poet said, Time it was and what a time it was, it was.

Wednesday, 9 September 2015

A year after Tsilhqot'in it's time to move from analysis to action

The BC Business Council invited me to speak at a networking event they hosted in Vancouver last night on the eve of the annual BC Cabinet and First Nations Leaders' Gathering.  It was a privilege to have an opportunity to speak to a room of Cabinet ministers and their deputies, First Nations and business leaders and to reflect on how to make greater progress in turning the promise of economic and social reconciliation into reality in the aftermath of the Supreme Court of Canada's 2014 landmark decision in Tsilhqot'in.
Here is the text of my remarks, more or less as delivered.

Let me first thank the BC Business Council for its leadership in convening this important gathering. What the business community is signaling here is its recognition both of the importance of reconciliation, and the role that business must play in turning the promise of reconciliation into reality.

This is an important gathering, you know.

Just imagine, for a moment, what might get done here, starting tonight, and over the next few days.

Meaningful progress in creating tangible opportunities for economic and social development, founded on mutual recognition and respect. 

You are here because you are leaders, because you sought out leadership and because your communities chose you as leaders.  So make this an occasion for leadership. Not for standing still, not for looking for short cuts to nowhere, not for dressing up the status quo as something new, but an occasion for stepping outside your comfort zone, for exploring new ideas, for taking risks. For courage.

I know this is much easier to say than do. I’ve been in politics. I’ve attended a hundred meetings where my main objective was just to sit tight and wait until it was all over.

I’ve also experienced how hard it is to lead change. But really, that is why you are here. To lead change. To make history.

So where are we at?

14 months after the Supreme Court’s decision in Tsilhqot’in, there’s been no shortage of discussion and analysis. People have tried to make sense of what the decision means, and there have been calls for action.

14 months on, we continue to push out more agreements – and that is a good thing – but overall, it’s hard to say we have found a clear path forward.     

Let me offer some observations intended to help get past reflection and into real progress.


First, let’s leave the lawyers at the door. They’re nice people, really, (after all, I am one) but we will not establish reconciliation by relying on legal opinions about legal rights.

For a long time, now, courts have helped level the playing field as between non-indigenous and indigenous rights, but courts cannot put rights into action.  Even those who cannot see the moral force of the argument for respect of indigenous rights must surely agree that litigating the ownership of every hectare of British Columbia will not build a prosperous society. There has to be a better way to do this.

Last summer, in the aftermath of the Tsilhqot’in decision, First Nations sent a letter to government proposing four principles.  The principles were intended to inform new forms of relationships, negotiations, and agreements with the Crown. The principles were simply that: principles. You could say they were aspirational in their reach.  But they were intended as a start for a new conversation.

Ten months later, Government’s letter of response carefully parses the principles as though they were a legal contract, rather than a potential foundation for a political discussion. With respect, a dialogue that entrenches old positions, rather than empower fresh thinking, simply won’t help. This is not the time to draw lines in the sand.  It’s a time for problem solving, not problem defining.

I’m not suggesting we should pretend there are no differences. Of course there are differences. But let’s all of us spend less time trying to win arguments, and more time looking for mutually beneficial opportunities.

To put this in another frame, for a long time this discourse has been characterized by positional statements and demands. And for much of our province’s history it was, perhaps, too tall an order for any party to shift that.

But certainly now is the time for change.  It’s time for an interest-based approach that promotes collaboration – which again sounds easier than it really is, but it is an approach that definitely holds more promise than the alternatives.  What we need to focus on is how to deliberately, systematically, and programmatically, create economic and social opportunity for everyone.  Opportunity for the First Nations communities on whose territories land and resource development takes place, and opportunities for everyone else who deserves a share of the prosperity we can create if we work together.


How should we frame our engagement?

First, I do not suggest we can or should overreach - we’re simply not going to get to comprehensive reconciliation with one bold leap. 

It may not be possible to design, let alone implement, an over-arching framework which is both meaningful and comprehensive enough to encompass all of the province’s many First Nations.  It may not even be desirable to try, given the diversity of experience and perspective that lives within our province. 

There has to be room for nuance and flexibility. We can get to reconciliation in many ways, and as leaders you all have a critical role to play in shaping those pathways. A policy which looks for wins – call it “strategic opportunism” - is entirely respectable, not least because achieving some success somewhere helps build confidence that other successes are possible. We need to acknowledge the successes that have already been achieved in this way. 

At the same time, looking for wins should not be confused with “squeaky wheels always get grease.” We need a proactive, rather than reactive approach.  It’s not about waiting for opportunity, it’s about looking for it. It can’t be just about putting out fires. We have some wonderful firefighters in the room – from all parties – and we can all hope that as leaders, these skilled individuals are given the opportunity to look for opportunities, rather than simply respond to problems.

There is a powerfully important need for frameworks, objectives and principles that avoid the risks inherent in a continuous proliferation of isolated one-off arrangements.  Real progress is not rooted in expedience.  With a bit more design work, there’s no reason we can’t establish a stronger foundation of shared, understandable, acceptable, achievable expectations, based on mutual respect and recognition, not denial and mistrust.

And then there is this vexing question: how do we ensure that everyone benefits? If the distribution of success is too lopsided, then it will breed its own failure.  I’m not discounting the reality that forests, mines, gas wells and other resources are not evenly distributed across the province. I am also not suggesting that all First Nations need or want to benefit in exactly the same way – that approach ignores the reality of so many diverse perspectives, interests and priorities. But it’s critical that we design our policies to address the reality of uneven wealth distribution.  This will be particularly challenging if negotiation becomes – as I hope it does not - an exercise in the valuation of asserted rights and title. 

There is a need for greater transparency. Not only because our respective communities need to know what is going on, if we are to hope that they will support this work.  But also because a growing public record of best practices, will help demonstrate what kinds of arrangements are more likely to succeed than others.  Again, I am not suggesting that what is needed is strait-jacket uniformity imposed through the back door.  I’m just saying, keep the confidentiality clauses to a minimum, let’s talk about what’s going on, and let’s keep track. 

I’m not trying to make this sound harder than it needs to be.  But for all the successes that have been achieved through many agreements and arrangements that have been entered into, there’s a need to do much more to give full effect to the promise of Tsilhqot’in.

This work is not, at its heart, positional jousting to reduce costs and minimize the distributional effects of rights and title.  We cannot allow this to be a zero sum game of benefit re-redistribution. It has to be about creating competitive advantage, of creating incremental value. The question is can we really lead?  Are we ready to lead in ways that are more enduring for our communities, shareholders and families?

To be fair, we are in an era where it often seems there is not a great deal of public appetite for bold political leadership – in any of our respective communities.  But rather than be defeated by cynicism, let’s choose to be inspired by the profound importance of the work that lies before us.

I do believe great things can happen if we are willing to recognize and affirm the mutual legitimacy of our aspirations, and if we are able collectively to see aboriginal people and their unique rights not as threats, not as the “other”, but as part of the larger “us.” To recognize that justice for First Nations is justice for all of us.  


In closing, you are here given an opportunity to direct the course of history.  I’m not afraid to put it in such terms.  There is no issue that so taints the history of our country as the long legacy of our failure to respect the rights, hopes and aspirations of Canada’s First Nations.  This week’s meetings take place against the backdrop of this history. One way or another you will be remembered for what you do here. I say, choose to succeed.    

By coming together here as leaders, it’s your turn, your time, to take hold of the paddles that sit in the great canoe which holds our collective hopes and dreams.  You can, if you want, keep your paddles dry, and let the river take you where the river will. The river will always take you somewhere.  Onto the rocks maybe, or stalled forever in some backwater.  Or you can decide to sit up straight, put your back into it, and paddle. You’ll get wet, maybe blisters, too.  It’s going to be harder to find and hold the course than you would like.  But paddling together - sensing the surge as the boat moves forward - it’s an amazing feeling. It’s really the reason we’re here, after all. So try it. Paddle.

Tuesday, 8 September 2015

We should nurture the principle of open courts

Here is a commentary I wrote in response to a BC Provincial Court consultation paper on open courts.  It appeared in the Globe and Mail on September 8, 2015.

Not all that long ago, if you wanted to know what was happening in the courts you had two options: Rely on the media, or go to the courthouse and see for yourself. Nowadays, a great deal of court information is kept electronically and with little effort could be made readily available online to everyone.
How much of this information should be accessible is a question being asked in a consultation paper recently issued by B.C.’s Provincial Court. We should seize this opportunity to expand access to information, not further limit it.
As the discussion paper helpfully points out, the task is to strike the right balance among a number of important principles: The public’s right to transparency in the administration of justice, individual privacy rights, fairness and the presumption of innocence.
On the one hand, courts exercise tremendous power – most obviously, of course, in criminal cases, where judges can impose sanctions and penalties all the way up to life imprisonment. But all court cases are about the exercise of state power, even if it is only to obtain an order requiring the payment of a debt. As the Supreme Court of Canada recently said, the transparency that flows from public access to the courts “ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law.”
On the other hand, widespread publication of court information has obvious implications for personal privacy. Publicizing the details of a trial, even when the result is an acquittal, can sometimes cause as much stigma and shame as a conviction. Our innocence may be presumed, but it’s hard to remember that when we watch crime stories on the nightly news.
Over the past several years, government and the courts have done a great deal of work to digitize court information. Recording this information electronically has undoubtedly improved court administration. But along the way policy decisions have been made about public access to this information. The result is that public online access is refused to such information as convictions for which a pardon has been granted, absolute and conditional discharges (after some time has elapsed), stays, withdrawals, and acquittals or dismissal of charges.
The principle underlying these restrictions is the idea that someone who has not actually been convicted of a criminal offence has a right to privacy that is more important than the principle of open courts. I take a different view.
Finding the right balance for competing principles is rarely easy, but that balancing exercise is often the moment when we have a chance to see the difference between what we really value and what we simply say we value.
There are legitimate circumstances where publication of court information should be restricted. Examples include where public disclosure would seriously undermine the integrity of law enforcement or expose witnesses to the risk of serious harm. This is not just about protecting privacy, it’s something different and equally, if not more, important.
But fundamentally, we should nurture, not further erode, the principle of open courts.
When the state prosecutes someone for an offence it is essential to democratic accountability that this fact be public. We should know about it whether the person is convicted or acquitted, the charge is stayed or withdrawn, or there is a pardon, a peace bond, or whatever. All of it. We will not be able to ask the right questions about the exercise of power unless we know how and when it is being exercised.
The fact that information technology allows court information to be disseminated more widely is a good thing, not a bad thing. Understandably, a person who is acquitted of a crime wants the whole world to forget that he or she was ever charged, but truth doesn’t work that way. It is appalling that innocent people can be dragged through the hell of wrongful prosecution or imprisonment, but the right response is not to organize official records to close the door of public access to what happened, but rather to open those doors as wide as we possibly can. The truth may sometimes hurt, but we won’t learn how to prevent wrongs from occurring if we deny ourselves the opportunity to know what has happened.
It was easy to say that open courts are indispensable in free societies when the reality is that much of what the courts did was, as an Alberta judge once said, protected by the “practical obscurity created by the physical inconvenience of attending at each courthouse to examine the criminal dockets.” Now technology offers the opportunity to overcome that inconvenience and test our commitment to the principle of open courts. We should embrace that opportunity. The exercise of state power must be subject to public scrutiny. That’s our best protection against its misuse.

Thursday, 3 September 2015

Two residential school desks dare us to respond more powerfully than a report

Here is a piece the Globe and Mail published on July 15 - my response to the powerful exhibition of Sonny Assu's work at the Equinox Gallery in Vancouver.

Installation View - Day School

At the centre of Sonny Assu’s recent exhibition at Vancouver’s Equinox Gallery were two school desks. School desks remind us of childhood, but these desks were different – and not just because of the way they had been altered by the artist. There was nothing nostalgic about them.

One, of 1930 vintage, was called Leila’s Desk. A box of Lifebuoy soap sat on the desktop, a reminder that on her first day of school a classmate called Mr. Assu’s grandmother a “dirty Indian.” The other, of 1990 vintage, was called Inherent and revealed the word “chug” on the underside, a piece of invective thrown at the artist by one of his classmates.

The exhibition was called Day School, a direct reference to Indian residential schools. Mr. Assu is from the We Wai Kai Nation, whose home is Cape Mudge on Vancouver Island. The desks were stark, tangible reminders that the residential school experience is not just something to read about in a report. It was, for years, the everyday reality for thousands of children in our country.

The exhibition coincided – unintentionally – with the release of the report of the Truth and Reconciliation Commission during the first week of June. The mandate of the commission, established as part of the comprehensive settlement of residential school legal claims, was to document the stories of survivors, their families and communities, research and write the history of the residential school system and make recommendations. The commission took six years and spent $60-million to do its work. Along the way it gathered 6,200 statements.

In its report, released June 2, the commission made 94 recommendations, or “Calls to Action.” They are almost entirely directed at governments and other public institutions. This is hardly surprising: Indian residential schools were supported and funded as instruments of public policy, and the legacy of the harm done by governments is the responsibility of governments.

The recommendations are ambitious. The commission calls on government to rewrite the citizenship oath to include a reference to aboriginal treaties, require law schools to make courses in First Nations law mandatory, eliminate the over-representation of aboriginal people in our jails, issue a Royal Proclamation and Covenant of Reconciliation and much, much more.

Once the commission’s report was released, it did not take long for the focus to shift to government. Would governments accept the report? Promise to implement its recommendations? And, of course, why isn’t government acting?

I thought about this as I stood in the quiet art gallery and looked at the two school desks.

Of course, we should worry that this file may already be making its way into the “too hard” pile on the desks of government officials. All too often, commission reports gather dust rather than inspire action.

But I worry, too, that the focus on the institutional recommendations, and the government response to them, may miss the main point.

In an odd way, it’s easy to ask government to solve this problem for us. It allows us to blame the government when government fails to act. But more invidiously, it allows us as individuals to wash our hands of the problem and off our personal responsibility to government or some other public institution – in this case, our responsibility as citizens and humans to understand the truth of the residential school experience and to work through what reconciliation means, not just for someone else, but for ourselves.

The legacy of the residential school system is complex. It’s not a history in which all of the hats are black or white, and we should not be afraid to acknowledge that.

But it is beyond doubt – and this is the power of all those thousands of statements – that for too many of our fellow citizens, childhood was a story of hardship, fear and neglect when it should have been one of love, care and nurturing. This is not just a policy question for government. It is a story about human lives, each as worthy of honour, dignity and respect as our own.

Public institutions have work do to, but we will not come to terms as a country with the legacy of Indian residential schools until we do so as individuals. We have to find a way to stare straight at this reality rather than turn away from it.

Mr. Assu’s school desks are small. Small like the innocent young boys and girls who sat at them. They silently dare us to respond – more powerfully, perhaps, than the report of any commission.

Why is the City of Vancouver regulating an illegal activity?

It occurs to me that I should post on this (somewhat neglected) blog a couple of other pieces I have written over the past few months which I have had the good fortune of seeing published elsewhere.  So in that spirit, here is a piece the Globe and Mail published on June 14, 2015, as the City of Vancouver was deciding whether or not to regulate potshops.  In the months since they passed their bylaw it's become even more apparent that the main problem here is a federal government (now of course in an election campaign) that simply turns away from the obvious need to take a completely new, health-protection based approach to marijuana.  But in the absence of a sane federal legislative regime, and given the proliferation of marijuana dispensaries, I still think the City made the right decision when it decided to impose its own regulations. Some of the details in the City's bylaw may be debatable, but this article dealt with the basic question of principle posed at the end of its first paragraph.

As the City of Vancouver consults with the public on its proposal to license marijuana retailers, I expect many people are not asking themselves about the details – for example, should pot shops be allowed at transit malls – but about the bigger question: What is the city doing regulating an illegal activity?

Yes, storefront marijuana sales are still against the law. Marijuana can be distributed legally for medical purposes, but several conditions must be met. Among them, the patient needs a doctor’s prescription, and the purchase must be from one of a very small number of producers licensed by Health Canada.

If these and other conditions are not satisfied, then possession and sale of cannabis is a criminal offence, and possession of as few as six marijuana plants carries the risk of prosecution and up to 14 years in prison.

Or not. Because in Vancouver, the police have made it clear they will not enforce medical marijuana laws against store operators except when there are other public order considerations.

The result is a proliferation of medical marijuana stores. Almost 100 of them in Vancouver, and the number is growing.

The law is in a state of flux. More precisely, the courts have been issuing decisions that overturn parts of the federal regulatory framework. Just last week, the Supreme Court of Canada ruled there was no rational basis for the Health Canada regulation that permits medical marijuana to be sold for smoking, but not for eating.

But please do not blame the courts for this confusion. Blame, rather, a federal government whose approach to this issue is driven by politics, not evidence or policy.

Some may still believe the best response to the reality that is marijuana in our society is to criminalize it, but it is a shrinking minority. A large and growing consensus of Canadians understands that cannabis prohibition has failed. It has not reduced use, and it has instead encouraged the spread of organized crime gangs whose members fight over market share.

Evidence is growing of the health effects of marijuana use, evidence of the risk of harm its use presents in some circumstances, particularly to the young. And there is considerable evidence of the benefits it offers in other circumstances, particularly to chronic-pain sufferers.

Unfortunately, federal cabinet ministers choose to call for prosecution, rather than commit themselves to do the desperately needed work of developing a regulatory framework informed by good health science.

When the law as written fails, as it clearly has here, when it lacks all moral authority, and creates more harm than benefit, rational policy makers should change the law.

What is needed is a clean slate, where all levels of government work together to plan a post-prohibition regime, where the focus is on developing effective public-health regulation, with clear and sensible rules, and funding from taxation to support research and education.

In an election year, no one should expect a change in policy on the part of the federal government. But that does not do much to help the City of Vancouver as it watches the number of pot shops grow every day.

Some wonder why the police are not prosecuting. Attempts to enforce laws that do not command public respect are more apt to bring the administration of justice into disrepute. On this issue, Vancouver’s police department is reading public sentiment correctly.

As a lawyer, I am troubled by the idea that the city would choose to regulate an activity – the retail sale of marijuana – that is unlawful. The city’s job, one might think, should be to enforce federal law, no matter how wrong it appears, rather than legislate to undermine it. It is always unsettling when our politicians appear to be at cross-purposes.

But the better course is for Vancouver to do something, rather than stand by and allow a regulatory vacuum to grow.

It is the business of city governments to enact by-laws to protect our safety, create livable neighbourhoods, limit hours and locations of business, and restrict unhealthy activities such as public smoking.

There is a need for good city-made rules to regulate pot shops, too. Not for the purpose of thumbing our noses at an out-of-touch federal government or usurping its authority, but for the simpler, yet profoundly important purpose of doing the best we can to protect the public until Ottawa comes to its senses.

Lobbyists are being punished for all the wrong, insignificant reasons.

The Globe and Mail today published this piece of mine on the Lobbyist Registration Act - they wrote the headline, which pretty well sums it up.

As British Columbia’s attorney-general, I introduced the province’s first lobbying legislation in 2001. Its basic objective was transparency – to shine a light on the interactions between government and lobbyists. Underlying the bill was the idea that while lobbying is a perfectly legitimate fact of political life, the public has a right to know who is trying to influence the government.

It’s one thing to express a public-policy objective and another to make it work. We’ve now had more than a decade of experience with the Lobbyists Registration Act and its administration. In short, the objective remains sound, but it is increasingly being undermined by a misdirected focus on trivial violations of filing requirements.

The original framework was deliberately simple: Establish a registry; require those who are paid to lobby government to register; appoint an official, called a registrar, with the power to verify the information provided; make the register accessible to the public.

The idea was to give the public a window into how the government works, not to impose a highly technical, onerous regime – to regulate lobbying, not lobbyists.

This was the spirit and intent of the law. In hindsight, that objective may have been naive. But not, perhaps, in the way that one would expect.

The act’s original framework was implemented. There is a register, it is publicly available and there is widespread compliance. There are certainly instances where significant lapses occur, but they are isolated and rare, not systemic or pervasive.

However, the temptation of creating an elaborate bureaucracy of rule enforcement proved irresistible to later governments, and so in 2009 the act was amended to introduce a full-scale regulatory regime, with powers of investigation, hearings, sanctions, penalties and more.

For a time, the registrar focused on educating to improve compliance, rather than punishing the miscreants. Alas, this has now changed, with the result that the registrar now regularly imposes penalties for infractions in the thousands of dollars. What kinds of infractions? Late filings; incorrect dates in filings; incorrect descriptions of the details of the lobbying activities; registering too soon.

Most of these errors are the moral equivalent of returning an overdue library book. It’s a bad thing, but it’s not that bad.

This insistence on enforcing clerical compliance may have reached a new high point this month when the registrar published a decision in which the original issue was a late filing of a registration in circumstances where no actual lobbying ever occurred. What makes the case look like a textbook example of regulatory overkill is the fact that this was a formal reconsideration of the findings of a previous investigation, which itself flowed from a previous investigation report, which flowed from an earlier reconsideration. That’s a lot of legal process for a filing error.

Enforcing precise compliance with registration requirements is particularly aggravating because the online registration system is inflexible, and remarkably insensitive to the often quite unstructured practical reality of lobbying. You might start by planning to speak directly to a minister, and then decide on second thought that you should begin by raising the matter with the deputy minister, and then what actually occurs is that you see the minister’s political assistant at a social event and decide to start the discussion right then.

That is how the actual world of lobbying works. It evolves as it proceeds. But every minor change of plan requires a new filing, and every filing mistake is a potential occasion for an investigation and a fine.

There are larger issues at play here. The evolution of the administration of this act is a good example of what often happens when a policy objective is legislated. The focus changes from achieving the policy objective to the technical business of rule compliance.

For example, speed limits are enacted because driving too fast is unsafe. But once speed limits are enacted, it is not so important whether you are driving unsafely. What matters more is whether you are driving 51 kilometres an hour in a 50-km/h zone.

Of course, when rules are broken, there is an expectation of some consequence. Even library fines are supposed to be paid. But law enforcement always includes an element of discretion, and excessive rule enforcement for its own sake may undermine, rather than reinforce, the public-policy objective of the law. In this case, too much of the wrong kind of punishment may serve to drive lobbying underground, which is exactly the opposite of the law’s intent.

The irony – the failure of foresight, if you will – is that in introducing the first Lobbyists Registration Act all those years ago, my concern was that the act might fail because lobbyists would somehow find a way to ignore it. Instead, they are now being punished for their errors in trying to comply with it.

It’s time for the registrar of lobbyists to lighten up.

Wednesday, 4 February 2015

My other life. One of them, anyway.

Well, this may be a bit of a distraction, but if you visit the website I identify below, you will see three pictures taken by "Geoff and Janet P" which the very fine folks at Randonnee Tours took a shine to, and I'm kind of blushing with modesty, but then you know, well, I took those photographs, and awww, shucks, it's cool they like them, and hey, I'm not always ranting, you know.


Tuesday, 3 February 2015

The right to strike and the Charter "at work".

 Eric Adams offers a cogent defence of the Supreme Court of Canada’s right to strike decision in today’s Globe and Mail (February 3, 2015).
His essential point is that in this case the Court was simply “putting the Charter to work”, interpreting its fundamental freedoms in a way that is not “frozen to past definitions or limited by literalism.”
Well, I am quite firmly in the camp of those who believe that the Charter must be a living document, and that its interpretation by the courts can and ought to evolve over time.
But that does not relieve us from the task of asking whether this particular decision is justified.
In the first place, there is a difference between a decision which puts a new gloss on old words in order to make the Charter’s guarantees work in novel and unanticipated circumstances, and a decision where the Court simply overrules itself.  In the former case, the Court seeks to extract the essential principles and values that underlie the written words of the Constitution and find a way to give them life and relevance in a changing world.  In the latter case, where the Court is, in essence, disagreeing with itself, something more significant is happening.  The Saskatchewan Federation of Labour case falls into the second category, not the first. 
Are there circumstances where the Court is justified in overruling itself? What about situations where the social, political, or moral context of an issue has radically changed?  Take, for example, the profound changes in attitudes towards same sex relationships that have occurred in the past half century.  In such circumstances, it seems to me that it is legitimate for the Court, faced with a prior decision that reflects a now plainly discarded set of societal values, to say that the constitution must keep pace with the changes in the world in which it must operate, and may legitimately overrule its prior decision.
But that is not this case.  Remember that the Charter came into effect in 1982.  By 1982, every jurisdiction in Canada had enacted comprehensive labour law regimes regulating collective bargaining and the right to strike.  The right to strike had been expressly recognized in Article 8 of the United Nations International Covenant on Economic, Social and Cultural Rights, enacted in 1966. The right to strike was hardly nascent or imperfectly understood when the Charter was drafted. As Eric Adams himself notes, “Strikes – the ability of workers to collectively withdraw their labour in order to achieve workplace goals – have always been an essential feature and central purpose of associations of labour, even if the law has not always recognized the fact.”
And yet the Charter (unlike the constitutions of dozens of countries) does not say anything about a right to strike.
And for the first 25 years of the Charter’s existence, the Court on several occasions carefully and thoughtfully ruled that the “freedom of association” expressed in section 2(d) could not be “interpreted” to provide constitutional protection for collective bargaining.  The Court had to overrule itself in order to create a free-standing constitutional right to strike.
Had something in society changed?  Was it was plain that the social, political or moral conditions which earlier supported the Court’s previous rulings had changed?  No. Not even close.
The majority of the Court unintentionally admits as much in this critically important passage from its reasons:
The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. As Otto Kahn-Freund and Bob Hepple recognized:

"The power to withdraw their labour is for the workers what for management is its power to shut down production, to switch it to different purposes, to transfer it to different places. A legal system which suppresses that freedom to strike puts the workers at the mercy of their employers. This — in all its simplicity — is the essence of the matter."
(Laws Against Strikes (1972), at p. 8)

The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.

Yes, the source relied upon for this statement is a book written in 1972. 
I agree with Eric Adams when he says, “Balancing rights and freedoms against broader public goals in a democratic society is never easy, but that is the role the Constitution has assigned governments in legislating and the judiciary in supervising that legislation against constitutional standards.”  But that only works when there are constitutional standards.  There are no standards here.  All that has really changed here is the composition of the Court.  Different judges, with different opinions.  This is not the Charter “at work”. It’s something quite disappointingly different.  

Friday, 30 January 2015

The rule of law and the Supreme Court's decision on the right to strike -

Today’s Supreme Court of Canada decision in the Saskatchewan Federation of Labour case is remarkable on many levels.

Both the majority and minority judgements deserve to be read: 2015 SCC 4.

In brief, the Court has, for the first time in history, constitutionalized the right to strike.

There is lots that needs to be said about this decision.  In this note, I want only to make an observation about its implications for the rule of law.  In particular, the idea, which lies at the heart of our system of government, that our constitution is intended to be the expression of enduring values, not simply a mirror for the ever-changing to-and-fro of political debates. And, equally importantly, the idea that the democratic legitimacy of judicial power requires that court decisions promote stability, certainty and predictability. 

For twenty years, the Supreme Court of Canada consistently held that the Charter protection for “freedom of association” did not extend to collective bargaining.  Legislatures could enact labour relations statutes recognizing the right of workers to organize and bargain collectively, and could create, protect and regulate the right to strike, but these were policy choices made by legislatures, not the implementation of constitutional imperatives.

All that changed in the Health Services case, in 2007, in which the Supreme Court expressly overruled three previous decisions.  Not ancient, dusty precedents, lodged deep in the forgotten recesses of old libraries, but three decisions, carefully and thoughtfully reasoned, less than twenty years old.

What the Supreme Court decided in Health Services was that, contrary to its three previous decisions, the constitutional protection for freedom of association does imply a right of collective bargaining.  In particular, it “requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation”

This is an enforceable protection.  If the employer does not “meet and bargain in good faith,” employees have recourse to the courts, who can order the parties to continue bargaining. That’s an enormously powerful remedy.  It completely changes the dynamic of collective bargaining in the public sector.  When governments know that public sector unions can take them to court to challenge their collective bargaining proposals, offers, strategies and processes, it’s a big deal.  Everything that the BC government has done in its recent negotiations with teachers, to give just one example, has been conditioned and influenced by the spectre of litigation.

What about the right to strike?  Well, in a 2011 decision called Fraser, the Supreme Court refined its 2007 ruling, and made it clear that the constitution, “does not require the parties to conclude an agreement or accept any particular terms and does not guarantee a legislated dispute resolution mechanism in the case of an impasse.” 

Okay, so the new law is that the constitution protects the right to bargain, but does not protect the right to any “legislated dispute resolution mechanism.” In short, no right to strike. 

Well, that was then (as in, 2011) and this is now.  Four years later, the Supreme Court of Canada has changed its mind again.  As the dissenting minority points out in their reasons, what the court has done here is create “a stand-alone constitutional right to strike.”

So, last week, if, relying upon Heath Services and Fraser, you advised your client that while there was clearly a constitutional requirement to bargain collectively in good faith the law was clear that there was no constitutional right to strike, you were wrong.  When you told your client that the Court had obviously charted a new course on freedom of association, but that we could count on a measure of stability, certainty and predictability in this area of constitutional law for the time being, you were wrong.  When you observed that the Court had stared right at the argument that the Constitution should protect a right to strike and said no, you were wrong. 

Imagine trying to govern when you have no idea, week in or week out, what the courts will allow you to do.

That’s not the rule of law, it’s whipsaw whimsy.