Dogs on the beach and the vexing question of rules

I began this blog a little more than a year ago with a photograph I had taken of a sign warning visitors not to get too close to the cliffs of Moher on the west coast of Ireland. 

I then asked some questions about rules and authority.  I said:  

Does the fact that so many folks are blithely disobeying the sign say something about our general attitude towards rules and authority?  We are so surrounded by commands and dictates and warnings and advice and cautionary words.  Coffee cups tell us the startling news that the beverage we are about to enjoy may actually be hot.  If you look at the signs in some of the city parks in Vancouver the list of prohibitions is so long that you sometimes wonder whether there is really anything permitted at all?  And so are we just tuning it all out?  ...

A year later, I thought it would be fun to post a photograph of another sign.  This picture was taken in at a city park in Sydney, Australia in late November.

Unlike the sign at the cliffs of Moher, this sign has not been defaced.  I am not going to suggest that this bespeaks some profound difference between the Irish and Australians.  After all, many Australians are descended from Irish immigrants.  Some of whom were sent to Australia, well, involuntarily!  And having spent three weeks there I can tell you that Australia is a country that loves to warn people about all of its many dangers.  No, I just like the fact that this sign actually welcomes people to the Sydney Botanical Garden and encourages people to do the things they typically want to do in a park: walk on the grass, smell the roses, eat picnics, and relax.  There are prohibitions, of course, but they are placed at the bottom of the sign, where they belong.

That’s where I think most rules belong.  At the end of our consideration of rights and responsibilities, a sort of last resort, if you will, rather than a first recourse.

I suppose this attitude makes me something of a libertarian.  But not so much because of my belief in our freedom, as because of my view about the importance of our responsibilities.  Because I think that when we choose to regulate something by a rule, we change the way we look at it.  Instead of responding primarily to the issue that caused us to think about making a rule, we think instead about the rule itself. 

To take the best example (and I know I have said this before, but it bears repeating), the question we usually ask ourselves when driving is not whether we are driving safely, but whether we are driving at or under the speed limit.  Our primary consideration is the rule, not safety.  We have in a very real, deliberate, but largely unconscious way, delegated that question of safety to someone else - the person who set the speed limit.  And in fact, for most drivers, the issue is really what speed we can get away with driving without getting a ticket.  So it’s not about safety at all, it’s just about getting caught breaking a rule. 

The whole reason for speed limits, of course, is safety.  But to a considerable extent the effect of legislating speed limits is to replace our moral responsibility to drive in a manner that does not create an unacceptable risk of harm to others with a quite different concern about rule compliance.

That’s what rules do.

On the island where my family has had a summer cottage for over half a century, we are part of a community of families that shares the use of a small beach.  The beach is so small that on summer afternoons, especially if the tide is coming in, there is not enough room for everyone.  In particular, there is not enough room for large dogs and small children at the same time.

Everyone in our little community agrees.  Most everyone also agrees that the best way to keep the beach safe for little kids is for the dogs to stay home.  There are lots of hours in the day - early in the morning, or late in the evening - when the beach is not busy, and dogs are welcome.  But just for a few hours in the middle of the afternoon, it’s safer if the dogs are kept away.

Even though everyone agrees with all of this, sometimes dogs are brought to the beach on weekend afternoons.

So the question is: what should we do about this?

There’s a pretty good chance that your answer to this question is: make a rule prohibiting dogs on the beach on weekend afternoons.

We haven’t done this yet.  In fact our little community has very few rules.  We have guidelines and expectations, but not that many actual rules.  We know that once we start making rules to regulate our behaviour, people will start disagreeing with each about what the rule says and how it ought to be applied.  And we will need to create sanctions and penalties and a process for enforcement, and a rule enforcement committee, and then we will have to decide how to choose the members of the rule enforcement committee.  And so on.  When what we really want is to keep our beach safe for little children.  And all we really need is the fortitude and the diligence to remind the person who has brought his dog to the beach that we all agreed it was not safe for dogs to come to the beach on busy afternoons.

Clearly what works for a small community where everyone knows each other doesn’t necessarily work in a large city where we are mostly strangers to each other.  I’m not for a moment saying we don’t need rules.  But sometimes I think we need to remind ourselves that law-making is not a panacea, and often is a poor, second-order substitute for individual or collective moral responsibility.  We could do worse than to spend less time making and enforcing rules, and more time just working out how actually to get along with each other.  Rules if necessary, yes, but not necessarily rules.

Sydney's amazing opera house

Just when I thought I had Australia all figured out, we took a tour of the Sydney Opera House and saw this.

It may be the only place in the whole country where men are actually directed away from the bar.

But then, perhaps that's what happens when Australian men attend the opera?

Seriously, I love the Sydney Opera House.  When construction started, the engineers had not actually figured out whether the building could be built as designed.

And when finally completed, the price was 1400 per cent of budget.  That's right.  It wasn't just twenty or thirty per cent over budget.  It cost 14 times more to build it than was originally estimated.

And yet it is one of the world's few truly iconic buildings.  Up close, it is simply breathtaking.  Audacious and yet utterly graceful.  As startlingly modern today as it was when construction finished almost forty years ago.  When its soaring, ambitious, and yet completely simple lines literally reshaped  our conception of an entire country.  And its price is just a footnote.

Sometimes boldness wins.

Justice reform: imagining a world without nails

Most justice reform is incremental.  Take even a report as thoughtful and ambitious as Geoff Cowper’s recent BC Justice Reform Initiative report. Most of its many excellent recommendations propose relatively minor adjustments to existing institutions and processes; if the whole report was implemented (and I hope it is), the result would be very significant, but not, I respectfully submit, transformational.  Our legal institutions would be somewhat repaired, perhaps, but most certainly not re-invented.  And of course the lawyers and judges – the folks who in large measure created the problems – would still be in charge.

Some think that incremental reform goes far enough.  I do not.  I think that sooner or later the legal system will have to reinvent itself profoundly, or else re-invention will be imposed on it.  

I hold this view not just because of long experience watching how tenaciously the status quo is defended, even as public confidence in the justice system and law work continues to erode, but also because I have seen how much re-invention is underway in other parts of our lives.  

Gillian Hadfield, a professor of both law and economics at the University of Southern California, is much better at articulating these ideas than I am.  Professor Hadfield is one of a small but growing chorus of academic voices discussing and in some cases calling for the de-regulation of the legal profession, an idea that would be regarded as profoundly heretical here in British Columbia.  In a recent article in the Stanford Law Review entitled “Legal Barriers to Innovation: The Growing Economic Cost of Professional Control over Corporate Legal Markets.”  (60 Stan. L. Rev. 1689 2007-2008) Professor Hadfield analyzes the extent to which the self-regulation of the legal profession stifles innovation in the delivery of legal services in the business sphere.  I like the way she puts things:

 “Innovators have long been imagined as disaffected or isolated iconoclasts tinkering away in the garage, on the periphery of the markets that their inventions might transform.  Where are the “garage guys” in law?”

In her view they are blocked by professional regulation that ensures that only those who have gone through “extensive induction into the conventional practice of law may participate in legal markets.”  

And then she finds another wonderful way to make the point:

"This regulatory structure is akin to requiring that anyone with a “mission to make the world’s information universally accessible and useful” complete a degree in library science and maintain standing in the professional association of librarians before embarking on the mission."

This of course is the mission of Google.  Her point is that Google’s founders, Larry Page and Sergey Brin, did not need to go to librarian school to reinvent access to information.  And that’s my point.  What Page and Brin want to do is make information accessible.  They’ve found a way to do that which completely bypasses the traditional structures of libraries and librarians, and instead puts a whole world of information directly and literally into our hands. 

That’s the kind of thinking that is needed for law and justice.  Discarding the self-orienting perspective of those who can only see the legal system from their traditional vantage point inside it.  Remembering that our real objectives are, say, access to legal products and outcomes without requiring that we pay someone who has eight years of post-secondary education.   To take Professor Hadfield’s analogy, it’s not the librarian we should care about, it’s the information.

Why is it more likely that transforming innovation will come from outside the world of lawyers and judges? Well, Professor Hadfield has one more beautiful little insight:

"The cliché often applied to the legal profession is the notion that “when all you have is a hammer, everything looks like a nail.”  But this captures only a part of why the homogeneity of those who can supply legal products and services has results in such stagnation in the nature of legal products and services.   Apparently when everyone has a hammer, nobody can even imagine a world without nails."

There's a lot of hurt caused in the name of free speech

I

Our reputations are both incalculably precious and yet exquisitely fragile.  A lifetime’s reputation for integrity, honesty, and fair dealing can be crushed to nothing in a moment.  All the more so, of course, in the Internet age.  The schoolyard plea that “sticks and stones may break my bones, but names will never hurt me” is just bravado.  All personal attacks hurt.  Public attacks do more than hurt, they cause harm.  It’s hard to hold your head high when the world around you is full of nasty gossip about you. 

The law has long respected this reality by providing the victims of false attacks with recourse in the form of the tort of defamation.  However, the law also protects our right to vigorous debate when we are speaking about important public issues.  Freedom of expression and debate are said to be the “very life blood of our freedom and free institutions.”

It is a truism that the idea of free speech only becomes interesting when someone says something we disagree with.  We all know the famous statement (usually attributed to Voltaire) “I do not agree with what you say, but I will defend to the death your right to say it,” but it’s easier to say this than to live it.  How many of us are truly willing to suffer the blows of a vicious, unwarranted verbal attack and yet defend the speaker’s right to attack us?

I have been thinking about this issue, and not just because bullying is back in the news this week.  Three of my friends have recently announced their candidacy for federal and provincial public office.  They are all fine people: Murray Rankin, the NDP candidate in the upcoming Victoria federal by-election, is one of Canada’s leading environmental lawyers and a recognized expert on information and privacy law.  Suzanne Anton and Andrew Wilkinson, both candidates for the BC Liberal nomination in Vancouver Quilchena, already have fine records of public service in municipal and provincial government.   Each of them would be a credit to elected office.  And yet it is only a matter of time before the most hurtful things will be said about them. 

I can remember the first time I was accused of being a Nazi.  It was in my constituency office.  It was whispered in my ear.  I will never forget it.   I lost track of the number of times that the impact of the spending reductions we made during my term as a Cabinet Minister was compared to the Holocaust.

All in the name of free speech.

II

A recent decision of the BC Supreme Court provides a powerful illustration of how vulnerable we are to public criticism, no matter how vicious, and how little there is that the law will do to stop it.  The case is called Mainstream Canada v. Staniford, 2012 BCSC 1433. The key issue in the case is the defence of fair comment in defamation cases.   The application of that defence in this case shows just how far the law will go to allow us to say hurtful things about each other. 

The plaintiff in the case was Mainstream Canada, one of three companies that dominate salmon farming in B.C.  The defendant Don Staniford has for many years campaigned against salmon farming around the world.  The trial judge described him as an “activist, author and environmental campaigner” who is “extremely proud” of the work he has done to attack the salmon farming industry. 

Mr. Staniford’s attacks are virulent, to say the least.  In January 2011 he issued a press release in Vancouver, launching a campaign under the slogan “Salmon Farming Kills.”  The gist of his attack was that farmed salmon causes cancer, akin to smoking, and that the salmon farming industry is as odious and dishonest as the tobacco industry.  Mainstream sued for defamation.

Mr. Staniford responded by blogposting personal insults about opposing witnesses during the trial.

The judge summarized her extensive analysis of Mr. Staniford’s statements in the following passage (at para. 198):

… Mr. Staniford does not in fact do anything to conceal the spite, ill-will and contempt he holds for industrial aquaculture and salmon farming in general, and Mainstream … in particular. I think the evidence is overwhelming in this regard. Mr. Staniford’s Internet postings are filled with insulting and demeaning comments and cruel caricatures. He ignores and disdainfully dismisses peer-reviewed science (…) when the conclusions conflict with his own views. The language in his publications – including the mock cigarette packages in particular – is extreme, inflammatory, sensationalized, extravagant and violent. The word “kills” is everywhere.

The judge held that Mainstream had established the requirements for defamation.  That is: (1) Mr. Staniford’s words would, in the language of the law, “tend to lower Mainstream’s reputation in the eyes of a reasonable person”; (2) they referred in fact to Mainstream; and (3) they were communicated to others.

These are all the elements of the tort of defamation, a species of civil wrong that is intended to protect our reputations from falsehoods spoken by others.

There are two familiar defences in defamation cases.  One is justification.  A defendant can “justify” his statements by proving that they were in fact true.  It’s okay to shout out in a public square that someone is a horse thief if he is.  Mr. Staniford did not offer this defence.  That is, he did not seek to prove that farmed salmon actually kills people.

Instead Mr. Staniford relied upon the defence of fair comment.

In essence the defence of fair comment is intended to allow us to express strong, critical opinions even if the words used would otherwise be defamatory, provided that we are speaking about a matter of public interest.  Justice Binnie of the Supreme Court of Canada in a 2008 case called WIC Radio Ltd. v. Simpson, 2008 SCC 40, said (at para. 1) that the defence of fair comment “helps hold the balance in the law of defamation between two fundamental values, namely the respect for individuals and protection of their reputation from unjustified harm on the one hand, and on the other hand, the freedom of expression and debate that is said to be the “very life blood of our freedom and free institutions”.

The elements of the fair comment defence (as modified in the WIC case) are the following: 

1. The comment must be on a matter of public interest;
2. The comment must be based on fact;
3. The comment, though it can include inferences of fact, must be recognizable as comment;
4. The comment must satisfy the following objective test: could any man honestly express that opinion on the proved facts?
5. Lastly, even if these requirements are satisfied, the defence is not available if the defendant was “actuated by express malice.”

The application of these requirements in practice is often difficult.  For example, lawyers are readily able to argue that although their client said that Mr. X was a horse thief, what he really meant was “In my opinion, anyone capable of doing such things as Mr. X has done is no better than a horse thief.”

This is more or less what happened in the Staniford case.  Although Mr. Staniford’s statements are very clear and, in form, very factual – he says without qualification that salmon farming kills people - the judge accepted that Mr. Staniford’s statements were expressions of opinion.

Here is how the trial judge expressed the submission of Mr. Staniford’s lawyer on this issue:

“if Mr. Staniford was an honest man expressing his genuine opinion on a subject of public interest then, no matter that his words conveyed derogatory imputations, no matter that his opinion was wrong or exaggerated or prejudiced and no matter that it was badly expressed so that people read all sorts of innuendo into it, nevertheless he has a good defence of fair comment.”

The judge agreed.  She held that all of the elements of the defence were established: the safety of fish farming is a matter of public interest; Mr. Staniford’s opinions were based on some facts (although the supposed “facts” are wholly discredited – there is no scientific evidence that eating a farmed fish is harmful to your health); that the comments, although stated in a form which appears to be factual, were just comments, and, in respect of the last element (at para. 184), that “Mr. Staniford (at least) believes what he says.”

It is impossible to read this judgement without concluding that what the law calls the defence of fair comment should really be called the defence of unfair comment.  The judge in this case concluded that Mr. Staniford was a closed minded, deeply prejudiced and “unreliable reporter of facts” who would “say almost anything to further his own agenda.”  He “believes his own press, even when contradicted by other, contemporaneous documents.”  (para. 188)  He “cruelly and publicly mocks people who have a different point of view,” and aims to “ridicule and humiliate people who do not agree with his views.”  In the judge’s view, the evidence was “overwhelming” that Mr. Staniford does nothing to “conceal the spite, ill-will and contempt he holds for industrial aquaculture and salmon farming in general.”  In short, nothing about his attack on farmed salmon is in any sense fair. 

There is, however, one more element to the defence of fair comment. The defendant cannot rely upon that defence if it can be shown that he was “actuated by express malice.”

On this point, the judgement is very interesting.  The judge has no hesitation in finding that the publications in issue were actuated by Mr. Staniford’s express malice towards Mainstream.  But, she goes on to say, that this was not Mr. Staniford’s dominant purpose.  His main goal, in her view, is to end industrial aquaculture.  Accordingly, she holds, he is entitled to rely upon the defence.

We will see what the Court of Appeal makes of this conclusion.  In the first place, the way the test is usually expressed does not require that malice be a dominant purpose.  Arguably, any finding of malice ought to deprive a defendant of the benefit of the fair comment defence, simply because the point of the defence is to permit debate on matters of public interest, not to licence personal attacks.  Secondly, it is hard to see how any plaintiff in circumstances similar to Mainstream could ever prove a case of defamation in any situation where the attacks in question relate both to a public issue as well as personal reputation. 

But apart from the question whether there is a good appeal here, I am interested in what this body of law says about our values as a society.

III

Reflect again on Mr. Staniford’s statements, and ask yourself what it would be like to be an employee of Mainstream and its parent company, carrying on lawful businesses, companies which the trial judge said, “model the behavior of a responsible corporate citizen”.  Mr. Staniford launches a highly public campaign. Its message, shouted from the rooftops, is that the product you make kills people.  You are personally demeaned and ridiculed for appearing as a witness in court on behalf of your employer.   What you learn is this: in our democracy, free speech is more valued than decency, fairness, self-respect, self-restraint, intellectual integrity, or responsibility.  And when it comes to public debate, the law rewards the most outrageous and hurtful among us.  It’s a harsh lesson, I think.  

For Ismailis, legal justice is non-adversarial

In a recent blog posting (July 16) I argued that there are many kinds of legal disputes where courts ought to be seen as a “valued, but last forum.”  This is not, in my view, just because courts are complex, slow, expensive and inefficient institutions, but because some legal disputes are better resolved by other means.

My view is that it is past time for us to refer to these other pathways to legal justice as “alternate” dispute resolution; rather, they need to be seen as belonging, with the courts, in the mainstream.  I say this not to undermine the courts as fundamental institutions, but rather to enlarge and enrich our conception of legal justice to embrace a broader set of processes and institutions.

Such processes and institutions already exist.  Arbitration is the preferred dispute resolution mechanism for almost all transnational commercial litigation. ( It is interesting that while judges are quick to remind us of the importance of adjudicative independence in our justice system, litigants in commercial disputes would prefer to choose and pay their own adjudicators, and yet  arbitration is nothing if not a form of rent-a-judge, to put it crudely.)  Mediation is increasingly preferred for relationship-based disputes, where there is an issue that needs to be resolved, but the parties will have to continue to work or live with each afterwards.  Other examples could be given.

In this regard, I was recently provided with a copy of a remarkable witness statement filed in a proceeding in the Supreme Court of the United Kingdom.  The witness is Noordin Nanji, of Vancouver.  He makes the statement on behalf of His Highness Prince Aga Khan Shia Imami Ismaili International Conciliation and Arbitration Board (“ICAB”), of which he is Chairman.  The statement explains that ICAB is “part of a global institutional framework that provides a dispute resolution system for members of the Shia Imami Ismaili Muslim community”, usually referred to as the “Ismailis”, on a national and international level.

The ICAB System seeks to encourage the amicable resolution of conflict through impartial mediation, conciliation and arbitration on a voluntary basis, i.e. the parties must be willing to seek an amicable resolution of their dispute.  While the dispute resolution process followed by the CAB System respects the religious principles and values of the community, it is always within the confines of the applicable local law.

Here follow some extracts from the witness statement to illustrate the focus on non-adversarial dispute resolution.  I do not offer these because I think our legal system should adopt Ismaili dispute resolution processes, but simply to illustrate that the adversarial system is not universally regarded as the best way to solve legal disputes.

3.2          The 1986 [Ismaili] Constitution established a dispute resolution system whereby Conciliation and Arbitration Boards would operate at both the national and international level. The system operates in 17 jurisdictions around the world. In some countries, notably India and Kenya, the decisions of such Boards, particularly in matrimonial and personal law matters, though reviewable by the courts, are recognised by the law.

3.7          The primary objective of the CAB System is to assist Ismailis to resolve disputes in an equitable, speedy, confidential, cost effective, amicable and constructive manner and in an environment that is culturally sensitive.  Processes are designed to operate in an equitable manner. Moreover, the Boards, whether arbitrating or mediating, are required to operate in accordance with applicable local laws. In arbitrating any dispute, a panel appointed by one of the Boards will apply the national laws applicable to the relevant dispute, not any "religious" law.

5.2          Once a dispute arises, it is the practice of the Boards first to attempt to resolve any dispute by way of mediation or conciliation rather than arbitration, even in cases where the parties have referred to arbitration only in their agreement. Rules of Conciliation have been adopted formally by the Boards for disputes resolved by way of conciliation.

5.5          The experience of the Boards is that more than 99% of disputes referred to the Boards are dealt with by way of mediation or conciliation. It is only a handful of cases that are dealt with by way of arbitration.

5.6            It is strongly felt  within  the community  that  one  of  the  reasons for  this  high incidence of mediation and conciliation is the fact that the parties, and indeed the members  of   the   community,  have  confidence  that   their  rights   will  not   be compromised and  that  a  fair  and  equitable  resolution  of  their  dispute  will  be achieved through mediation or conciliation by the Boards.

6.6            Muslim ethics, custom and practice strongly encourage the amicable settlement of disputes that may arise in the community between believers. It is recommended that, when a conflict arises between members in the community, attempts should be made to find a peaceful solution either through mediation or impartial conciliation or arbitration between willing parties. Voluntary and impartial conciliation and arbitration for the amicable resolution of disputes is a deeply embedded practice in the Ismaili community going back 14 centuries ... It is from that long tradition that the present CAB System has emerged.

6.8          In essence,  it  is  believed  in the  Ismaili community, as in  the  broader  Muslim community, that when a problem occurs between brothers, the people around should intervene to solve it, and they should pursue all means in order to make peace between them. That brothers in religion should be willing to forgive each other and to reconcile their disagreements is testified to in a large number of Prophetic traditions, both the Sunni and the Shia, as  well as in the traditions of  the Shia Imams. For instance, Imam Ali, the first Shia Imam, has said:

"Do not separate yourself from  your brother unless you have exhausted every approach in trying to put things right with him. ...  Do not be harsh with your brother out of suspicion, and do not separate from him without first having tried to reason with him... Seek reconciliation with your brother, even if he throws dust at you." (The Sayings and Wisdom of Hazrat Ali, published in England, 1994)

6.12        In sum, therefore, the broader Muslim tradition, and specifically the Shia Ismaili Muslim tradition, defines and fosters an ethos for amicable dispute resolution that, unlike the "secular" litigation culture, is non-adversarial. The notion of the winner and the vanquished, where the winner may take all, is completely alien to the teachings of the Ismaili Imams.

Justice for sale? Market values and the law

In the concluding passages of his reasons for judgment in Vilardell v.Dunham, the court hearing fees case, BC Supreme Court Justice McEwan calls in aid the American political philosopher Michael Sandel to argue that:

“the Court cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace…Some  things cannot be for sale.”

 I confess I have not yet read Professor Sandel’s latest book (What Money Can’t Buy, the Moral Limits of Markets) though I have read the article in the April 2012 issue of The Atlantic which distills the book, and contains this wonderful passage:

“The great missing debate in contemporary politics is about the role and reach of markets. Do we want a market economy, or a market society? What role should markets play in public life and personal relations? How can we decide which goods should be bought and sold, and which should be governed by nonmarket values? Where should money’s writ not run?”

I particularly like that sentence “where should money’s writ not run?”  It’s an invitation to explore an aspect of our legal system that I think needs more discussion.

Here are three examples of harm:

-          An arm broken in a car crash caused by a driver’s negligence

-          A reputation injured by the false statements of another

-          An employment terminated maliciously.

What do all three of these harms have in common?  Two things.  First, they are not, in themselves, economic harms.  Second, courts have monetized them. 

The pain and suffering of a broken arm is just that – debilitating, disabling hurt.  The loss of respect and self-esteem that follows an unjustified attack on someone’s reputation injures our dignity and sense of self-worth – it’s just harder to hold your head high when folks are publishing lies about you.  And while the loss of employment income is obviously about money, the affront that occurs when someone is fired not simply without cause, but in a manner that is intended to belittle and scorn can be deeply and enduringly stressful and traumatic.

None of this is about money, though.  It’s about other precious components of our quality of life.

But these harms have all been recognized by the courts as a basis for claiming money damages, when they are caused by a breach of legal rights.   Damages for negligence, damages for defamation, and aggravated and exemplary damages for wrongful dismissal.

I have chosen these examples deliberately because they all come from what lawyers call the common law – that is, the law made by judges.  The right to compensation for physical pain and suffering or injury to reputation, and the right to additional aggravated or exemplary damages in certain cases were not established by legislatures, or governments. They were created by courts. 

I agree with Michael Sandel when we calls us to broaden the terms of our public discourse and grapple more explicitly with competing notions of the good life. I also agree with Justice McEwan that some things cannot (or ought not to) be for sale.  But let’s be careful when we dress the courts and the law in that high-minded notion.  Because one thing the courts have done for hundreds of years is to apply and extend the values of the marketplace into the law.

Oddly enough, I’m not saying this just to hint at a latent hypocrisy in the reasoning of Justice McEwan, although his complaint about the government “selling justice” by imposing court fees is a bit hard to take, given what courts do everyday in putting a dollar figure on anguish.  I actually think it would be interesting to challenge the notion that money is the best – or even an appropriate - form of solace for the harms I have described.  Courts themselves acknowledge that money does not fully repair the hurt of non-economic harms.  But damages for these harms are awarded because… well, just because a poor substitute is better than nothing.

Of course, lawyers have a direct interest in ensuring that this practice continues, because their fees are paid from damage awards.  But although I admit I have never exhaustively researched the point, I have never seen any empirical research into how and in what way money for these kinds of harms actually makes anyone or anything any better.  This is a heretical notion to be sure, in particular given (for example)  the enormity of the on-going project of compensating Indian residential school survivors for their continuing pain and dislocation.  Psychological and economic research tells us that, above a certain threshold, more money does not buy happiness. Perhaps pain and suffering should not be for sale?  What if we were to start thinking more seriously about other forms of redress for non-economic harms?  Where should money’s writ not run?

A heritage conservation facade

Oxford Properties, my law firm’s landlord, is building a shiny new 35-story office tower on Hastings Street in a narrow slice of property between two well-known Vancouver buildings - also owned by Oxford - the Marine Building and the Guinness Tower. 

The new building is being built on the site of the old University Club, which, when I was growing up in Vancouver, was one of three men’s clubs on a two-block stretch of Hastings at Burrard, (the other two being the Vancouver Club and Terminal City Club, both still alive and well).  The University Club building has not been used as a club for a long time, and for the half dozen years I have worked in the Guinness Tower, its principal contribution to the look and feel of West Hastings has been its west-side wall of ivy, shiny green in spring and summer, and gloriously red in the autumn, and the gloomy, abandoned aura that emanated from the mostly empty, disused building, 

The old building - including the ivy wall - is gone now, all but its facade, currently suspended by massive steel buttresses while construction proceeds on the site: a thin wall of bricks and mortar held up like the artificial backdrop of a movie set.  It looks as though it is patiently, if somewhat forlornly, waiting for the new building to arise, so that it can be glued on afterwards as a sort of architectural post-it note.

The new building - not-so creatively named 1021 West Hastings - will introduce a tall spire of glass and steel into the space between the Marine Building and Guinness Tower, and in doing so it will surely alter our perspective of both of these landmarks.  Of the two, the Marine Building is the more famous; it is often considered Canada’s finest example of Art Deco architecture, abundant in detail and tracery; I often detour through its lobby for the sheer pleasure of its decoration.

The Guinness Building is less immediately striking, but that, for me, is part of what makes it interesting.  Because, nearly half a century after its construction, it still looks completely modern.  Its clean external lines draw the eye up into the sky, and that green-blue glass that has since become the pervasive symbol of Vancouver’s condo tower architecture creates wonderful effects of light, especially when the sun shines on it.  The  magnificent lobby wall mural, “The Fathomless Richness of the Seabed”, by Jordi Bonet, gives depth and resonance to the blue and green themes.  The plazas and gardens on the east and west sides of the building are not only fine places to sit, eat lunch, and talk with a friend - they also enhance the building by giving it more space in which to work architecturally.

How much of that will change when there is a 35-story tower in between the two smaller, older buildings is tough to say.  The view from my own office window on the southeast corner of the 21st floor will definitely be different.  Instead of a clear shot of the Marine Building and a glimpse of harbour and mountain, I will be looking directly into someone’s office, or apartment living room.  

At ground level, the drawings suggest that there will be a spacious, airy lobby, and I’m sure there will be.  But then there is that facade.

Precious little of Vancouver’s architectural heritage - such as it ever was - survives.  Vancouverites don’t just accept change in our urban landscape, we enthusiastically seek it out.  But we are also just a little bit worried about erasing all visible evidence of the city that was, and so we try to reconcile the reality that rising land values make it difficult to justify - at least in economic terms - the few remaining old buildings by preserving bits and pieces of them.   Sometimes it works; sometimes it doesn’t.  

In the case of the old University Club it must have been challenging to demolish the rest of the building while keeping the thin skin of the front wall in place.  And the effort of design and construction required to keep it intact during construction and then incorporate it into the new building must surely have added hundreds of thousands, if not millions of dollars, to the developer’s costs, offset in whole or in part by the various incentives the City provides to encourage heritage preservation.

Was it worth it?

There are some buildings where the incorporation of the old into the new is functional, visually interesting, and respectful.  The Bank of Canada building in Ottawa, the Maison Alcan complex in Montreal, and the Sinclair Centre in downtown Vancouver are good examples.

Not, in my view, 1021 West Hastings.  There it seems to me that the preservation of the University Club facade will look and feel like an afterthought, one part of something completely divorced from its former whole and thereby trivialized.  As for me, if the whole building was not valuable enough to protect, then I would rather have seen what an architect could have done with the space without being literally and metaphorically tied down by the weight of this wall of old bricks.  I strongly believe we should honour and, within reason, preserve our past.  But that’s not, I am sorry to say, what is happening at 1021 West Hastings.

That was not me in the funny hat at the Chelsea Flower Show last week

It is difficult to know where to start.  The wall of daffodils braving the 27 degree late May heat surprise?  The pitchers full of undrinkable Pimms?  Or the fact that somehow, someone, almost certainly a committee, decided to limit attendance over five days to 157,000, exactly?

Or maybe it’s just the guy with the hat. 

But really, the place we started our visit to the Chelsea Flower Show in London last week turned out to be just down the street, in an amazing garden on Royal Hospital Road called the Chelsea Physic Garden.  It’s only been there since 1673.  One of the wonderful things about Britain is that just about everywhere there is something really amazing, there’s something else just as amazing about two blocks away.  In this case, it’s a four-acre botanical garden that has been home base for over three centuries to some of the world’s leading botanists.  Today it contains and, thanks to all kinds of helpful little signs, also explains, some 5000 different plants. 

Its location was chosen because, sitting right beside the Thames, there is a warmer microclimate that allows non-native plants to survive.  As a result, you have a chance to admire flowering plants from Crete, Madeira and the Canary Islands, including an impressive 8 foot tall plant that apparently comes from the top of the volcano in Tenerife, a place I thought was mainly famous for cheap rum.

For someone like me, whose personal self-improvement project is to remember the proper botanical name of one new plant every year, (I am now up to twelve, I think, but don’t ask me to remember them all at the same time, or I will Crocosmia Lucifer you) the prospect of learning the names of even a fraction of 5000 different plants feels like the work of several lifetimes.  But the great thing about visiting a garden with an actual gardener is that every time you round another bend you hear, “Oh look, a magnifica minorus japonica!” (Don’t look it up; I just made it up.) How on earth does she remember all these things?

For our little visit the gardener’s highlight was the brand new section entitled Edible and Useful Plants.  If it weren’t actually the case that all the plants identified in this area are in fact either edible or useful or both, you’d be forgiven for thinking you had dropped into a Monty Python skit.  And now, ladies and gentlemen, it is time to visit the Edible and Useful Plant garden.  Step this way, please. 

For me, of course, the highlight was tea and a treat.  An essential part of every British garden tour.

And then down the road and into the mob scene.

No one could possibly not enjoy the Chelsea Flower Show.  If you don’t like the flowers, which are overwhelmingly stunning, or the gadgets – who knew there were so many different versions of trowels? - there’s some glorious people-watching.  Fetching summer dresses – okay, I’m just looking. The most impossible combinations of green glen plaid sports jackets and insanely pink striped bankers’ shirts.  Expensive up-to-the-minute-haircuts; some hair that looks like it’s never been cut.  High heels in the mud.  Every accent imaginable.

A huge tent called the Great Pavilion, housing what feels like acres of flowers and plants in glorious profusion.  Some 80,000 orchids used in the Thailand display. Outside, cars covered in astro turf, and plastic flowers, and little country cottages installed just for the week of the show, and a strange display that looks like a concentration camp guardhouse honouring 60 years of the Korean DMZ.  This year, everywhere you turned there was something in honour of the Queen’s Jubilee, including a display that consisted of pictures of Her Majesty’s visits to the Show stretching back sixty years.  It’s all there, really.  A stall that sells high priced vintage gardening books.  A tree-shaded forest glen filled with different models of garden cottages. Paper flowers hanging from trees.  Pink champagne on ice.  A bandstand. And every conceivable garden ornament and sculpture you could never imagine putting in your own backyard, but isn’t amazing the things people seem to like?

And of course tea, and cakes.  And yes, since you asked, I did add one more flower to the list.  It’s the Chelsea Flower Show Plant of the Year 2012, Foxglove Digitalis Illumination Pink.  As the English would say, brilliant.

Housing the homeless, and a word about compassion

1. 

Earlier this week I attended a groundbreaking for a new supportive housing development in downtown Vancouver.  The new project, which is being built on Burrard Street across from St. Paul’s Hospital, will provide 141 new housing units, 30 of which will be committed to youth under the age of 25, as well as support services for individuals who are homeless or at risk of homelessness.  

The project will be operated by The Kettle Friendship Society, which will provide tenants with access to group and individual support, training on household management and meal preparation, and skills training in money management and community living.  The building will also be the home of Directions Youth Services Centre, run by Family Services of Greater Vancouver, which will also provide support services to youth.

This is a much needed facility and will provide much needed housing and support.

It’s a tribute to a remarkable, continuing partnership of the provincial government (which has provided capital construction and operating dollars), the City of Vancouver (which has provided land), and the StreetoHome Foundation, which, step by step, is breaking the cycle of homelessness in Vancouver.  

StreetoHome has committed over $26 million through this partnership to help build 950 new permanent, supportive homes on eight sites in Vancouver.  Housing for people on the street, or at risk of becoming homeless.  Dollars raised from business and community leaders to help us do more than manage homelessness, and instead, solve it.

This particular project is also supported by Canadian Western Bank and CIBC.  Yup.  Bankers, the ultimate 1 percenters, also helping make a difference in our community.

The groundbreaking ceremony, attended by Ministers Rich Coleman and Mary McNeil, as well as Mayor Gregor Robertson, was on Wednesday of this week.

I was honoured to have the opportunity to represent the StreetoHome Foundation at the ceremony.  It’s taken lots of work by lots of dedicated and selfless people over the past several years to move from a place where homelessness seemed like an utterly intractable problem to a place where real progress is being made.  The Burrard Street project is another important milestone on the journey.

2.

I was a bit disappointed the next morning not to see any media coverage of the groundbreaking ceremony.  All told, the Burrard project represents a nearly $40 million investment in land, capital and operating dollars, and when it is up and running it will make a significant difference in the quality of life and prospects for some of our most vulenerable and disadvantaged citizens.  It is, I think, a good news story, and we could all use a bit more good news.

I was actually on the verge of writing a blog post to complain that the event had gone unreported, when a story finally appeared on The Province’s website late yesterday afternoon.  It’s a good story, by Andy Ivens.  Thank you Andy!

But then I read to the end of the story and into the online comments sections, and boy oh boy oh boy, did my good mood disappear in a hurry.  Here is some of what I found:

They should build this homeless shelter in Fort St John where there are JOBs but no homes.

------

Next, let's build a tunnel across the street into St. Paul's Hospital so we can cram their beds full of these fine upstanding citizens and make it less accessible for those of us that actually pay our taxes! Funny that these projects don't happen near VGH!

------

Re: joeforte
You took the words out of my mouth. This is exactly what mayor moonbeam promised. Makes me sick!!!!

------

Can I live on Burrard for free too? I get squat as a single working female. Maybe I should just not work and start popping out random kids and get a free place to live.

----- 

I want a free place to live; I want three square meals a day too!! I guess I gotta become a useless, degenerate, homeless to get these things.. maybe I'll get some of my tax dollars back.. homelessness is a choice. let them live with their choices.

-------

People voted for Vision Vancouver and Mayor Gregor Robertson. Their Vision is bike lanes and luxury condos for the homeless paid by YOUR tax dollar. I didn't vote for Vision, but if you did, well, you get what you voted for.

-------

The media has done the public a great disservice by coming up with the all inclusive and sexy for them term 'homeless'. With that one word they lump a dozen issues into one and only make any real solutions even more impossible. Druggies and punks aren't homeless they're just free loaders. Why should we give them anything except for a bust ticket out of town? Vancouver needs to stop being so accommodating - building this on prime real estate? At this cost? Just doesn't make sense.

This is it.

This is the most ignorant thing the prov has ever done.

An entire highrise given over to the drug infested criminally insane meth heads?..downtown in the most expensive real estate on Earth? This building will become the biggest crackhouse on the planet. It won't be supervised....trust me!

You think this will get the homeless off the streets??? Not a f*cking chance. Every single resident will still lie on the sidewalks begging for money smoking meth.
Except this time...they have a luxurious free condo to go back to...to smoke more crack. All on top of free food.

Thanks Canada

-----

Why is this being built on Burrard Street in downtown Vancouver? The most expensive city on the planet and we're building a homeless shelter. How about building it somewhere a heck of a lot cheaper and shipping them there? Pay to retrain the lot of them and make them go to work and pay taxes. This is the dumbest idea yet.

I work my a$-s off in order to be able to afford a condo, in ABBOTSFORD!! And yet if I lived in a cardboard box downtown, I'd get a home here, paid for me! Excuse me??

Most of the time, I ignore this stuff.  I assume comments like these are written by people who had a bad day, drank a few too many rye-and-gingers, and decided to take out their frustration with the world on their keyboard.  

In other words, I hope that these are the views of the very few, not the many.  I hope that most people really do understand that homelessness is not a lifestyle choice, or the beach party that never ended, but is rather a hellhole which lies below the bottom rung of the ladder of life, where the most intractably marginalized members of our community are lost, struggling, and, too often, too far from hope or help to know how to find their way back.

Projects like Burrard Street, offering safe, stable and secure housing, services and supports, are the way back for at least some of those folks.  

It’s tragic to think that there are people in our community who don’t understand this.

3.

There’s an email in my inbox from the Greater Vancouver Compassion Network.  I received it as one of the many folks who filled the auditorium at Gladstone Secondary on March 22 for two inspiring lectures by Karen Armstrong, one on the topic “What is Religion”, the other on her work in developing and promoting what is called the Charter for Compassion.  

The Charter for Compassion is a document which urges the all peoples to embrace the core value of compassion in their public and private lives.  Its text (you can find it on www.charterforcompassion.org) includes this passage:

It is also necessary in both public and private life to refrain consistently and empathically from inflicting pain. To act or speak violently out of spite, chauvinism, or self-interest, to impoverish, exploit or deny basic rights to anybody, and to incite hatred by denigrating others—even our enemies—is a denial of our common humanity.

Words to inspire, hard as they are to live by.

The GVCN (www. gvcn.ca) encourages all to adopt the Charter as individuals, and it hopes that someday Vancouver will become a compassionate city.  

The Burrard Street project is strong evidence that this is not just simply wishful thinking.  But those online comments still send a bit of a shiver down my spine.