Leonard Cohen. And me, I suppose.

So long Marianne; it’s time that we began, to laugh and cry and cry and laugh about it all again.


Tonight we think of Leonard Cohen.

I still have the songbook I purchased in the music store in West Point Grey where I took my first guitar lessons all those years ago: The Songs of Leonard Cohen.  With a picture of Cohen’s Greek visa - if that’s what it was - on the back cover. I wanted to learn how to play Suzanne, because everyone else could.  (It sounded so simple, though it wasn't.) Instead, I learned Bird on a Wire and So Long, Marianne. But really hardly ever played them. There was something impenetrably, ineffably unreachable in his unique juxtaposition of the sacred and the profane.  And I could never shake this feeling that they weren’t really songs; they were more like poetry barely set to music.  He was, I think, simply too adult for my 14 or 15 year old self.  It was far easier to set sail on the more approachable, or at least tuneful seas - flying machines and broken heartships - of Gordon Lightfoot, James Taylor and Neil Young.

Oddly enough, I returned to Leonard Cohen a few years later through a side door: Jennifer Warnes’ completely perfect record, Famous Blue Raincoat.  That punching drumbeat in First We Take Manhattan cracks across your mind like some kind of weapon.  Her duet with the man himself on Joan of Arc is a wild tour into the unknowable, unresolvable mystery of mysteries. Song of Bernadette, which I played so often the grooves wore out on the vinyl and still today can bring me close to tears: ‘so many hearts I find, broke like yours and mine, torn by what we’ve done and can’t undo’ - well, isn’t that life in a dozen words?  And anyway, I was just old enough by then to be entranced by the idea of a Jewish poet from Montreal who couldn’t leave all these Christian icons alone. Jennifer Warnes helped me see the music that completed the poetry.

And then again, a long interruption, until the album The Future, and its Closing Time, which I played and played and played again, not just because it really is hell to pay when the fiddler stops, but by then I guess I was maybe old enough to start thinking about closing time.  But young enough still to think that the answer was simply to party on, and hope the fiddler would never stop.

If you will forgive me a moment of excess, I think I can say that the first twenty thousand times I heard Hallelujah - including as k d laing sang it at the 2010 Olympics opening ceremony (we were there for rehearsal night) it meant something to me, but eventually all good things - even really, really good songs, wear out their welcome. Not Cohen’s fault, I know, but there it is. It’s a curious song.  I’ve always thought it’s a lot like Bruce Springsteen’s Born in the USA: there’s something superficially compelling about it that allows you to disregard the true darkness that lies within it.  Sometimes I hear people sing it and I say to myself, are you actually listening to what he’s saying?

Pico Iyer’s writings about Leonard Cohen’s life with Buddhists brought the man into focus in ways that could only cause you to rethink your own way of living, or at least it did that for me, and I give them both credit for doing that.

Leonard Cohen is a special treasure to Canadians, of course.  A Montrealer who made it big in the larger world and never completely let go of his roots.  Someone whose muse also never quite let go, and drove him to create, to mystify and enlighten and even entertain us into his 80’s; well, that’s a powerful inspiration in his own right.  He’s thought of as an icon of the 60’s, one of the greats of a long ago era who managed to reinvent himself into relevance again and again for six decades.  I think his work will last.  Context always matters; the time and place in which creation happens is always at least relevant.  But the art that truly endures can stand outside its time and place.  That is a right reserved to very few creators.  Leonard Cohen is surely one of them, an immortal.  Few people prepare so publicly for their own demise, but I always thought that he was preparing us for his departure as much as he was preparing himself. He’s gone now, but the words and the songs will live on.

The morning after the morning after, and it's not getting better

A day later, and the future still seems pretty dark to me.

Yesterday morning, Hillary Clinton conceded defeat with grace and dignity, and a resolute commitment to the inevitability of social progress, confirming our belief that these have always been her qualities.  President Obama began the process of transition. He invited the President-elect to the White House as soon as today.  And in a quite remarkable attempt to re-contextualize 18 months of bitter, impassioned and angry campaign rhetoric, he quaintly described US presidential elections as "intramural scrimmages".

Well, we're all getting along now, I guess.  At least no one it seems, is any longer describing the US voting system as rigged.

Commentators are well into the post-mortem analysis.  For many, of course, that will have to include an examination of the question: what went wrong with their confident prediction that Americans would reject Trump?  (Of course, in one sense, they did: Clinton won the popular vote.)

There will be lots of explanations.  Here’s one that needs considering.  I won’t remember the numbers perfectly, but they went something like this: compared with 2012, the Republican vote decreased by a bit less than a million (in round numbers, 61 million to 60 million); but the Democratic vote declined by as much as 6 million (66 to 60).  Overall, a lower turnout.  But perhaps what really happened is simply that Republicans voted Republican, while millions of Democrats abandoned their party and candidate.  (These would probably be the blue collar workers who once formed the backbone of the New Deal Democratic coalition and who are now the bedrock of Republican support in the Rust Belt states where the election was won and lost.)

The other narrative that has returned to the media discourse as an explanation of Tuesday’s outcome is the argument that what really happened is that voters decided, as they do from time to time, to vote for change rather than continuity.  In crudely simple terms, it’s like this: “we’ve given those bastards a pretty good run at it; now it’s time to elect a different set of bastards.”  (The argument is pursued by Gail Collins in her op-ed in today’s New York Times.)

This idea was once very elegantly explained by the American philosopher Robert Nozick in his book, The Examined Life.  He called it the "zigzag" of politics.  He wrote,

“The electorate I see as being in the following situation: Goals and programs have been pursued for some time by the party in power, and the electorate comes to think that’s far enough, perhaps even too far.  It’s now time to right the balance, to include other goals that have been, recently at least, neglected or given too low a priority, and it’s time to cut back on some of the newly instituted programs, to reform or curtail them.”

It’s a philosopher’s argument (I don’t think he even names a political party throughout the whole of his discussion).  It implies, plausibly, that voters are rarely as entrenched in their adherence to the positions and views of parties and candidates as are the parties (and their ideologues).  It argues for a balance over time that ensures that different interests, priorities, and aspirations eventually all have their chance.  It underestimates the role that personality - as opposed to policy - plays in election outcomes.  But it is not a bad way of explaining one of the best features of healthy democracies, which is that long term one-party rule is the exception, rather than the norm.

So maybe what happened is that Americans - or at least some of them - were simply voting this week for change.

Fine. I can comprehend that analysis.  I might even agree with it.  But it doesn’t help.
Americans may have voted for change. But what they got was Donald Trump.  And that’s where the fear starts to rise again in the pit of my stomach.

A Sunday summer day in Howe Sound

Sunday afternoon, the first weekend in June.  It’s a glorious day, more like summer than spring. We are paddling kayaks in Howe Sound, surrounded by ocean, mountains and islands, and counting seals and eagles.

We are not alone.  In the waters around us others are enjoying the beautiful blue sky day.  There are motor boats filled with families fishing, picnicking and water-skiing.  Off in the distance other boaters are travelling to and from their cottages.  Water scooters zoom noisily back and forth. From the mainland across from us, we hear the roar of traffic on the Sea to Sky highway – folks coming home from a weekend of hiking or mountain biking at Whistler, and motorcycle riders making the long day’s circle trip up the Duffy Lake Road.  High overhead, seaplanes filled with sightseers circle around the scenery.

It’s a busy day in Howe Sound.  Everyone’s finding their soul space, doing the things that give them pleasure, and enrich their lives.  It’s at the heart of why we love this province, and why we live here in coastal BC.  And it is all completely and utterly dependent upon fossil fuels.  

Without carbon products, the only sounds in Howe Sound would be waves lapping on rocky shores and the beat of seagull wings.

Strung out along the mountainside just across from where we are paddling is the community of Lions Bay.  It was once home to a few waterfront cottages.  Now it’s a community of over 1300 people.  Made possible by, and utterly dependent upon, our car culture.  As a place to live, it fails every walkability score ever devised.  Yes, there’s a community school, but it stops at grade 3.  There’s a village hall.  There’s a small general store that serves great cinnamon buns, and a real estate office, and a marina, but that’s about it.  Everyone who lives in Lions Bay does their shopping somewhere else, a bus ride or, far more likely, a car drive away.  They would all be helpless without carbon fuels.

The same is true for all of us who live or play in Howe Sound and its islands.  There’s Bowen Island, increasingly populated by folks who commute daily by ferry and water taxi to Vancouver.  There’s Gambier and Keats and Anvil Islands, with cottages and boat docks lining their shores.  It’s motor cars and motor boats that make it all possible.  And the chain saws that clear our views, and the generators that operate our water pumps, and the ferries and the water taxis that deliver us to our destinations.  And yes, of course, even the plastic kayaks in which we are paddling.

There’s a breath-taking gap between the promise we have made to reduce our carbon output and the reality of our lives.  

I feel this all the more acutely because I know that some of those boating or driving around on this lovely Sunday afternoon will spend their Sunday evening writing letters to the editor insisting that we keep the LNG vessels and oil tankers away from our precious waters.  LIke them, I believe that Howe Sound is a special place, and I am glad it is cleaner today than it was a generation or two ago.  I certainly don’t want to turn back that clock.  But I also don’t want to live in denial - to pretend - or even simply just ignore - the reality that without carbon none of us could live or play in these waters. 

But what about the orcas?  Yes, there are the orcas that, for the first time in my life, are swimming in Howe Sound.  Those orcas.  They are beautiful, majestic creatures.  I always know when there’s a sighting. That's because I can see the train of motor boats following behind and surrounding them. 

The problem, I think, is not that we aren’t superficially sincere in wanting a better, cleaner, sustainable environment.  It’s that we assume that all that heavy lifting is going to be done by someone else, somewhere else, some other day, while we continue to live and enjoy our carbon-dependent lives to their fullest.  As if, somehow, we will have done our part for the environment if we insist that the pipelines and tankers go somewhere else.  But please make sure I can still afford the gas I need for my boat or car!

Canada has signed on for ambitious carbon reduction targets.  As the Canada West Foundation recently pointed out, the amount of the reduction required by the year 2030 is equivalent to the elimination of all GHG emissions from Ontario, Atlantic Canada, Manitoba and the Territories. Completely shutting down the oil sands would only get us partway there.  The reductions in carbon activity required to achieve this target are nothing short of transformational.  Are we actually ready for that change?  As I look around at the busy waters of Howe Sound on this lovely day I don’t think we have even begun to turn our minds to the magnitude of the task.

Other Americas

I began my Sunday morning as a good citizen of the world, by deciding to catch up on the week in US presidential election.  Pretty soon, I was back in the slough of despond.  The thing is, there is an America that is not the grotesque caricature that is dominating its politics just now.  At times like this I just need to make a special effort to remind myself of it.  

So I jammed the earbuds in and went for a walk on the windy beach.  Richard Shindell began singing Wisteria: “The vine of my memory is blooming along those eaves.”  Soon enough, I felt a bit better.

***

It is a cold October night and my friend Sam Morse and I are camped on Tumbledown Mountain in Maine, which is not so much a mountain as a long ridge of ancient granite that looms over the miles of forests and farms of northern New England.  We have a campfire going, and we are working our way with some deliberateness through a bottle of Jack Daniels, solving the last few remaining puzzles in the mystery that is the universe.  It’s a dark starlit night. Just when I am starting to think it is time to crawl into the sleeping bag, a car pulls up, filled with teenage boys.  They ask if they are on the right road to Mexico.  I start to laugh.  Sam, who knows the backroads of Maine, asks, “Where are you boys from?”  They reply, “Paris”. I laugh again. Sam looks at me as though I am the completest idiot ever to set foot on earth.  He turns back to the boys in the car and says, “I’m afraid you’ve overshot Mexico.”  And then he proceeds to tell them how to get back to the right road.  It turns out there’s more than one way to get to Mexico from Paris, in Maine.  In that other America.

***

It is a summer afternoon in the early 1990s, and we are sitting in Fenway Park, in Boston, in a row of seats halfway up the stands behind home plate.  The Blue Jays are playing the Red Sox.  It’s a sunny, muggy day. We catch bags of peanuts from the vendor and make a mess of shells at our feet.  We watch as pitchers and batters duel, fielders make spectacular catches, and there is a collective intake of breath with every long ball that arcs towards the Green Monster.  We feel like we are sitting in the nave of a cathedral built to honour the soul of a nation. On the row beside us sit two men who have probably been watching Red Sox games at Fenway Park for over half a century.  They see an opportunity for education.  And so for the whole of that long, deliciously slow August afternoon, they generously regale us with stories of their team, its players and managers, its successes and heartbreaks.  They fill our heads with statistics of unsurpassing obscurity, which they disagree about vigorously. They tell us what to watch for with every batter, and call every pitch before it is thrown. All is said with what can only be described as wise-cracking reverence, as though there could be nothing more important in this world than to know every fact about the life and career of Carl Yastrzemski, the greatest Red Sox player of them all.

***

There’s a room in Washington D.C. in an art gallery called the Phillips Collection which holds four paintings by Mark Rothko.  We were there last December. Its mid-20th century construction marked the first time an entire room had been created specifically for Rothko’s work.  It’s not a large room; and it is dominated by the paintings, abstract expressionist works that are fields and bands of colour.  When you enter the room, you are literally immersed in Rothko’s vision.  It’s deceptively simple: colours and shapes on four canvases; purely abstract.  But if you take a slow breath, and let it wash over you, you start to realize that the paintings are somehow humming; as though they are alive. And then you realize that you are not just looking at something, you are feeling it. You’re buzzing, elevated by an emotion that’s almost impossible to explain.  It’s glorious to be in the presence of such achievement. 

***

There is a book by the American photographer Robert Adams called Prayers in an American Church.  It’s a small book, a collection of a dozen or so photographs, accompanied by meditative words from diverse sources.  The church in the title is not a building; it’s the natural world, whose beauty is honoured in the photographs.  Not the grandeur of mountains and canyons, but the simpler beauty of sun-dappled tree branches and leaves, and the peace of quiet places.  Robert Adams’ images are austere.  He captures the intersection of humans and the landscape of western America. It might be a treeless suburban housing tract on the outskirts of Denver.  Or a scarred clearcut hillside in Oregon. Or a woman pushing a shopping cart in a grocery store.  Or the line of the prairie horizon broken by a single tree.  Or a lonely road. He is determined to find beauty in all these places, and, against the odds, he does. 

***

When I want to think of that other America, I think of Dar Williams, whose early songs were, for a time, the soundtrack of our life as a family.  When I Was a Boy was a kind of anthem for our belief as parents that our children could grow up on their own terms, unconstrained by the limiting stereotypes of mass consumer culture.  The Christians and the Pagans is a generous and funny hymn to the possibility that we can get along, despite our differences, as long as we can find a way to eat together.  The Babysitter’s Here is a short story about love, growing up, and everything else, sung in about four perfect minutes.  She still makes amazing music. 

*** 

One summer a decade ago, we rented a car in Las Vegas and began a road trip by heading towards southern Utah and its breathtakingly beautiful red sandstone natural monuments. On our first night we stopped in a town called Springdale, which is on the doorstep of the majesty of Zion National Park.  We try to be respectful travellers.  We had read that Mormon traditions were strong in southern Utah.  We were prepared, then, for a few days of righteous, stoic, alcohol-free travel. But on our first night, we sat down at the table of our restaurant and read a menu that suggested we might like a glass of Polygamy Porter.  Why?  Because, as they said, “you can’t have just one.” It’s hard not to love a country that can make fun of itself.  And while I am at it, I think, too, of Las Vegas, all of it, because, as I said, it’s hard not to love a country that can make fun of itself.

***

When I think of America, I think of Aaron Copland, and that moment early in the first movement of Appalachian Spring when the orchestra comes alive and I always jump from my seat. And Bob Dylan, because, well, because everything.  Even if “it’s not dark yet, but it’s getting there.” And Edward Hopper’s paintings.  And Emily Dickinson: "Because I could not stop for death, he kindly stopped for me.”

And I think of lightbulbs, Linus Pauling, the Hardy Boys, Huckleberry Finn, Rosa Parks, New York’s Museum of Modern Art, ice skating at Rockefeller Center, Walter Cronkite, e e cummings, Rebecca Solnit, and that moment when, after screaming in terror all the way down the Matterhorn at Disneyland, our daughter turned to us and breathlessly said, “Can we do that again?” 

And my favourite sentence in the English language. “So we beat on, boats against the current, born back ceaselessly into the past.”

Happy Earth Day, British Columbia

The Globe and Mail published this piece online tonight.  I've read some of the comments, which, really, no one should do, who wants to maintain any faith in humanity.  But the hilarious thing is that no one (so far) seems to have read what I've actually written. They've read the headline and that's about it.  Maybe I shouldn't be surprised?  Anyway, here we go.  



Happy Earth Day. Earth Day can be a day to honour the precious gift that is our planet. Often, however, it is also an occasion to lament, or at least feel guilty about, the way we use it.

There’s reason enough to lament. But I would suggest there is another perspective, that there is also, sometimes, a reason to celebrate. In British Columbia today, we actually have an enviable environmental record to celebrate on Earth Day.

A recent report by Corporate Knights confirmed that no jurisdiction in Canada protects more land than British Columbia. There are 1,029 protected areas managed provincially. As of last June, over 15 per cent of British Columbia’s land base, or nearly 14.3 million hectares, was dedicated to protected area status. That’s 2.2 hectares per resident. It’s a remarkable achievement.

And the story gets better. Earlier this year, after years of conflict and negotiation, the Great Bear Rainforest on the central coast was fully and properly protected.

The agreement now in place permanently protects 85 per cent of the old-growth forested area in this enormous and remote part of British Columbia from industrial logging, while allowing restricted logging on the balance. That’s over 5.4 million hectares of additional protection, an area nearly the size of Nova Scotia.

For once, I don’t have to go out on a limb to agree with the Greenpeace spokesman who stated: “From conflict to collaboration, we now celebrate the protection of areas of cultural and ecological importance while ensuring economic opportunities for the communities exist long into the future.”

This achievement is especially important because our forestry, energy and mining resources will continue to drive the growth and stability of our economy.

The reality for our province – and for Canada – is that our prosperity is founded on resource development. That’s not to say we should not diversify our economy; we have done so and should continue to do so. But it’s resource development that built our province, and responsible, sustainable resource development will be a cornerstone of our economy for generations to come.

That makes it all the more important to find the right balance between land development and land protection.

That’s why for the past couple of years, I’ve been involved with a group in Vancouver that is sparking an informed conversation about these issues. Resource Works, a non-profit society with representation from all sectors and corners of the province, works to raise awareness of the importance of our resource economy to our standard of living in British Columbia.

Too often in this province, we hear a discourse that presumes we can somehow maintain our quality of life by leaping immediately to some postresource economy. It won’t happen. And it shouldn’t happen. For as long as we continue to drive cars, take buses or ride bicycles; use smartphones, tablets or computers; expect our streets to be safely lit at night; boil water for coffee or tea; expect our homes to be warm in winter; build and live in houses; catch fish; eat fruits and vegetables in winter – in short, for as long as we continue to do everything that is indispensable to our quality of life, we will make demands on the planet. It’s simply not credible to pretend or suggest otherwise.

Somehow, we need to hold two thoughts in our minds at the same time: the need for access to sufficient resources to sustain our quality of life and ensuring that we respect the planet. Neither side holds a monopoly on truth in this debate. There is no point or purpose in trying to out-shriek each other. The task, again, is to find the balance.

But I’m not suggesting it’s easy. I am suggesting it is fundamentally important that we embrace both sides of the question, and find a path forward that can both recall our duty to protect the planet and yet also find a way to continue to sustain ourselves from its amazing bounty.

Count all of the protected areas, wrap your mind around the millions of hectares of British Columbia that have been put outside the reach of resource development – the forests, mountain ranges, rivers, lakes, estuaries and marshlands that have been been protected. It’s been the labour of a generation to reach a point where our record of land protection is second to none. It’s Earth Day. Let’s celebrate that achievement.

And then ask the question: Is that enough?

We are travelling in Laos.  Admiring the glorious Buddhist temples of its capital city Vientiane.  In the back of my mind is this nagging question of how Canada should respond to the events in the Middle East, Syria and ISIS in particular.  There’s a call for greater bellicosity.  Commentators and opposition politicians say we need to increase our military engagement.  It’s not quite wanting to make the desert glow, but lots of “why can’t the Prime Minister sound at least a little angry?”

Well, anger may be a great way of letting off steam, but it’s not always the best emotion for rational analysis.  There’s a recurring moment in the movie Bridge of Spies, when the Tom Hanks character asks his Soviet spy client (played brilliantly by Mark Rylance) a question intended to provoke a strong emotion, and the spy always replies, “would it do any good?”  That’s a great question, a question which we should especially ask about whether Canada needs to get more engaged - I was going to say ensnared - in the literal and metaphorical minefield that is the Middle East.  Would it do any good?

All wars come about because older men and women decide to kill younger men and women. Their own citizens. Some of those killed are soldiers, and others are innocent civilians. The Leader says to his people, “Please give me your sons and daughters so I may slaughter them on battlefields, and break your hearts when they never return from the faraway place I need to send them.”  The question arises, “Why, O Leader?”  The answer is often an appeal to a higher ideal.  In many countries of course, the answer is sometimes “because our borders are threatened.”  Not so in Canada, not for the past two hundred years.

Sometimes the answer is, “We need to do this to make the world safe from something bad.”  Perhaps it is justifiable to put Canadians in harm’s way if the result of the loss of lives is that some greater evil has been avoided.  As I get older, however, experience teaches me to be increasingly skeptical of that argument.  The world was told Iraq needed to be invaded to make the world safe from weapons of mass destruction.  Except there weren’t any such weapons.  And the result of the invasion of Iraq is that the world is actually less safe. Much less safe. The world was told that Afghanistan needed to be invaded to make the world safe from the harm being caused by its leaders. Well, the world is always being told that about Afghanistan, and whether it is ever true, the fact is that the lost of precious Canadian lives in Afghanistan has had no enduring positive impact on domestic safety and security in that country, and Afghanistan continues to be a source of international instability.  And we are told we need to increase our military engagement in Syria.  We are told this, mostly, by people who are much better at starting wars than finishing them.  Forgive me if, this time more than ever, I am skeptical of the war-mongers. I have grandchildren.

Why am I ranting on like this?  Yesterday we visited the National Museum of Laos.  The plaster is cracked, there's dust in the corners, and some of the exhibits are a bit timeworn, but the story of the country's passage is compelling nonetheless.  It's a story told from the singular perspective of the Democratic People's Republic, with the special tone that one-party states tend to adopt when praising their accomplishments.  I took a (bad) photograph of this map.  Every dot is a bomb drop.

Between 1964 and 1973, as part of a secret operation conducted during the Vietnam War, the US military dropped dropped 260 million cluster bombs – about 2.5 million tons of munitions – on Laos over the course of 580,000 bombing missions.

As our tour guide said a couple of days ago, “Well there were about three million people in Laos then, so you could say the US dropped about a ton of bombs for every man, woman and child of Laos.”

Did it do any good? Did all those bombs make Laos a free country, with liberal democratic institutions, respect for private property rights and the rule of law?

No. About a year after the bombing stopped, Laos became a communist state.

Some historians argue that the final triumph of the communists in Lao was a direct result of the US bombing campaign.  That is, not only did this massive, relentless campaign of utter destruction singularly fail to achieve its stated purpose, it actually produced the opposite effect.  Laos was bombed (in part) to protect the US war effort in Vietnam.  Well, so how did that turn out?  The US left Vietnam in failure and disgrace, and soon thereafter, North and South Vietnam became one undivided communist state, the very thing that the US intervened to prevent a generation earlier.

All conflicts have their own histories.  But before we put our children in harm’s way, isn’t it right to ask the question whether it will do any good?  The answer is so rarely yes.  It is often said that those who cannot remember the past are condemned to repeat it.  But we do not have to.  It is also said that the definition of insanity is to do the same thing over and over again and expect different results.  I have heard no one begin to offer a coherent explanation of the kind of multi-generational commitment that would be needed to build a measure of security and stability in the Middle East, and frankly, the region’s leaders are themselves quite conflicted on the question whether they would ever want such a thing, given that a certain amount and kind of conflict and instability seems to suit their interests.

For a generation, in the aftermath of the Second World War, Canada tried to make a reputation for itself as a peace maker, not a war maker.  Many look back on that era as a high point of our contribution to world affairs.  Others think we should just buy more fighter planes.  I say, just this once, let's reach for something higher.

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.

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.

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.

1

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.

2

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.

3

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.  

4

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.

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.

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.

























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.

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.  

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.