Tuesday, July 26, 2016

Beyond Strategy: The Moral Case To Stop Trump

I've never cared much for the phrase “strategic voting”. It suggests a dichotomy that doesn't really exist. There are times when voting for the candidate closest to your views who can win is a principled decision. And there are times when withholding your vote from the leading candidate and giving it to a long shot is perfectly good strategy. 

My friend in Alberta who was a lifelong Liberal, but voted for the NDP in their last provincial election was strategic, in that the Notley surge meant that in his riding the NDP could win. But it was also principled, in that he believed that ending one-party rule would lead to better, more accountable governance in the long-term.

By the same token, I met Green voters in the provincial election in ridings where they had no hope who had thought strategically of the need to build a party long-term that was unequivocally against development in a number of areas. The fact that I didn't agree with them didn't change the fact that, long-term, the money and credibility that came with votes would help their party long-term and was also a strategic choice. 

Today, many US progressives are wrestling with this kind of choice, as the “Bernie-or-Bust” wing of the Sanders movement is resisting calls from their peers and their own candidate to support Hillary Clinton to stop Donald Trump.



I'm not going to engage in any Sarah Silverman-like cries of “ridiculous” here. There are genuine frustrations among Democrats, like this one…



But I'm prepared to grant that not every Democrat difference is as trivial as the taste of colas, and not every Republican will be as awful as self-immolation. As I've argued before, the power to withhold your vote is important. If parties just want to win elections, the Democrats could nominate Jeb Bush, because if all Dems supported him, he'd surely steal enough GOP votes from Trump to win. But in the long-term, we'd all be signing up for a long line of conservative presidents and rewarding Republicans for moving to the crazy right. So the power to say “no” to your own party is meaningful. 

Me, I'd be in the middle of the Democratic fight. Bernie Sanders’ campaign was beautiful to watch, and built a movement I didn't know America had in her. I do believe that it will be necessary to halt the movement of jobs and capital with impunity, to ensure fair taxation, and have a social safety net and public services that provide a more equal society than we have now. (I even believe that Trump’s destructive campaign is partly the result of thirty years of business leaders being willing to create a lost underclass of voters, but that's another thing).

Yet, while it isn't trendy to say it, I respect and like Hillary Clinton. I see the flaws.  She is a plodding campaigner and sometimes is too quick to see politics as the art of the possible without testing the limits of what can be done (like on gay marriage).  I also think that she has been the victim of 25 years of Republican scandals that throw endless excrement without ever really coming out with proof or a coherent accusation of wrongdoing. (Quick, tell me exactly what they are accusing Hillary of in Benghazi, without falling into a word salad of labels). In a world of tweeted policy and empty celebrity, I have some patience for policy wonks with five point plans. They matter. And those who knock her compromises in the 1990s are often ignorant of the realities of what it took to end the Reagan/Bush era with the whiter, more conservative electorate that existed then. 

I would say this about so-called strategic voting….it’s fine to withhold your vote if you believe (a) the difference between the leading candidates is not as important as (b) the future benefit of withholding your vote, through either building another option or influencing an existing one. I also suggest looking at this unromantically – a candidate who will reluctantly do what you want often produces the same result as someone who passionately does what you want.

There are big differences between Bernie and Hillary. She would pursue a more hawkish foreign policy, which has sometimes gone wrong (Libya, Iraq). She is less skeptical of free trade. She is more concerned with deficits and has more connections to Wall Street that may influence her. (Bernie has practically no oligarchs with him that he could lose). 

There are similarities, too. Both will protect Obamacare. Both will retain President Obama’s protections for undocumented immigrants and their kids. Both will appoint Supreme Court judges who will defend personal liberty, choice, affirmative action, and don't see unlimited money in politics as a right. 

This is no small thing – both are basically decent on issues of race, religion and inclusion. Compared to Trump, they are saintly. 

Which leads me to discuss the alternative. I sometimes hear debates over whether Nader voters “cost” Al Gore the election. To which I would say this –it is legitimate to withhold your vote from the leading candidates. It isn't legitimate to deny that your choice has consequences as much as voting for one of them does. 

Al Gore lost Florida by 537 votes. Ralph Nader got over 90,000. It is true that not every Nader vote would have gone to Gore as a second choice. It is true, by studies and Nader’s own admissions, that 60% would have (many would have not voted or voted for Bush). But even allocating those votes 60-40 flips Florida and, thus, the election.   


Some people argue that voting for Nader over Gore doesn't mean you own the result because (a) Gore could have been a better campaigner (b) Gore could have won his home state and carried the day (c) Gore also got screwed over by a flawed ballot design in Broward County. 

These arguments are actually ridiculous. First, just because other things could change the result doesn't absolve us from our own actions when, but for those actions, the result would be avoided. If I drive drunk and hit you with my car, it doesn't absolve me of fault to argue that you forgot your lunch at home and thus arrived at the crosswalk later instead of missing me altogether. Maybe Al Gore could have done other things better and changed other factors….but he also could have won with all those flaws had voters who preferred him to Bush chose him over Nader. If we buy those dumb arguments Nader voters use, then it would also follow that Bush voters in Florida aren't responsible for Bush, because if Gore had won Tennessee their votes wouldn't have mattered either. 

Bottom line – I will defend your right to withhold your vote from the Democrat if you sincerely believe that the benefits outweigh the risks of those missing votes electing the Republican. I won't defend your right to deny that votes have consequences, because that's what comes with getting to vote like a grownup. You're allowed to argue that the benefits of punishing Hillary are worth the statistical risk of President Trump. You aren't allowed to deny that you alter the statistical risk.  You have to calculate that too. That's not fear-mongering…it’s simply part of the burden of voting. 

I further accept the words of Sanders and his key campaign people that the emails stolen from the DNC show a clear bias toward Clinton but show no fraudulent actions that change the fact that slightly more voters chose Hillary Clinton (although Bernie’s campaign was far better). 

All this is to say that I understand the differences are important and worth pushing. In the end, I still tend to believe the moral and strategic choice is to vote for Hillary Clinton.  I have three reasons. 

1. If there was a more mainstream Republican, like McCain or Romney, I could entertain objections more easily. Trump is genuinely dangerous – in his willingness to apply religious tests to government programs, to make Muslims register with their government, in his vague promises to restore law and order by any means necessary, in his clear promises to place American in a police siege to round up illegal immigrants, in the casual cruelty with which he treats people who disagree with him, in his praise of dictators even when given examples of murderous behaviour, in his debt to Russian financiers and praise of Putin, and in his unstable temperament and the strange, narcissistic speeches he gives rambling through snarling at his enemies and lauding his own glory. No sensible person can equate Hillary or Bernie (or even Mitt Romney) to Trump. 

2. There are minimal upsides to pursuing Bernie’s platform with a President Trump.  I can see how organizing in midterm elections and taking direct action can push Clinton to sign progressive bills if they are passed. If you can see how anything gets easier with a Trump presidency and three Trump appointees on the Supreme Court, you see something I don't. 

3. Hillary stops the repeal of ObamaCare health benefits and the mass deportation of 11 million people. Many Bernie or Busters are too privileged too be affected by this (I would be too), but I do believe that there is a strong moral case that compassion requires us to weigh the pain caused to millions of less fortunate people by those two Trump actions alone against any benefit to be gained by withholding votes from Hillary (especially when you can threaten to challenge her in the 2020 primaries from the left). 

So that's my case for voting Hillary. It may be strategic, but it is also based on values and the moral imperatives before the electorate. Like most votes, it is strategic and moral.

Monday, July 25, 2016

Hillary's goals, 100 hours from now.


Events have overtaken this a bit, of course. The theft and leaking of DNC emails has created some real tension about how Bernie Sanders’ team will act. I'm going to leave that mostly alone, because (a) it goes without saying that Team Clinton needs to bring the party together and (b) it's too early to say how this will play out. Let's see how the Monday night schedule –fortuitously built around people the Sandernistas either love (Warren, Bernie) or respect (the First Lady). It's also unclear how much the Russian angle will play out here – Trump’s fawning love for Putin and financial debts to Russian financiers are getting picked up by the media and this may yet be a thing. 

But going into the convention, there are three goals that will be key for Hillary Clinton. And believe it or not, they don't involve tearing Donald Trump a new one. 

1. Tell your candidate’s story. I was at the 1992 DNC convention.  Bill Clinton came in to that week third behind Ross Perot and George H.W. Bush. When he and Al Gore left New York, he was ten points up and Perot was gone. A lot was due to the brilliant job people did telling his story –growing up in a poor, single-family home in Hope, Arkansas and becoming a Rhodes Scholar and governor. It was wrapped up in a great biographical video that ended with Bill intoning “I still believe in a place called Hope.”  Hillary is now more familiar than Bill was in 92, but she isn't beyond reintroducing. She is a guarded person who has been vilified by Republicans for years, and does not easily speak emotionally. Many younger Sanders people didn't know the days when she was the left-wing, progressive bogeyman the neocons hated, and her work on human rights, anti-war causes and children’s law will be news to them. More importantly, they need to show what makes Hillary Clinton tick.

2. Make substance matter. One critique I have on the Clinton campaign is that they are still acting like the Center can be defined by what it isn't –not Trump, not radical change –than what it actually is. By the end of the week, there needs to be some clear things that President Clinton is for, not just things they won't let President Trump do. This is doubly important because Trump is a know-nothing on policy. It has surprised me that they haven't made him respond and react to policy debates (where he can't match Clinton) instead of value challenges (where he has some cunning and strength she lacks). There are lots of ideas more compelling than a wall….but the fact I can't name what her signature policy is suggests a problem for the “substance” candidate. 

3. Pick your narrative on Trump. One reason why Trump has had some Loki-like qualities this campaign is because he makes so many crazy statements. Many candidates screw up once, and then let the media chew on that topic for a week before something more interesting comes along. Trump throws crazy into the conversation like chum in the water, and often no one thing sticks. Having 16 opponents in the GOP primary kept there from being one devastating critique. Trump is good (not as good as the media thinks, but good) in picking one tiny flaw in his opponents and sticking to it, while goading his opponents into attacking him through a laundry list of weirdness. Clinton needs to choose from the pu-pu platter of crazy and pick a narrative on Trump. We will know by the speakers’ list if they have managed it. In essence, they need to decide if Trump is dangerous because things aren't so bad and he is unstable, or if things are bad but Clinton’s stability is the right antidote. Getting caught between the two may be fatal. 

Again, there are still unknowns here. But the basic goals remain the same. Trump’s bounce this week is not worrisome because he can't be reined in – ask Presidents Mondale, Dukakis, Kerry and Romney what the value is of getting a lead before the incumbent party replies – but he is hitting numbers that show that the universe of people willing to consider him is high enough to win. He set a narrative –the world is falling apart, and he is change and Clinton is the same old insider politics. This is the best chance the Democrats will have to fix a narrative of the campaign that draws a distinction that favours their candidate. 

Saturday, June 4, 2016

Still The Greatest

Muhammad Ali was always an aging fighter to me.  I was born in 1970, so I missed the early fights, where his speed and talent announced itself with a flourish in the heavyweight division. I missed a lot of the politics as well; Vietnam, the name change, and the social statement made by an African-American champion who replaced the quiet dignity of past trailblazers with a pride, wit and bravado that demanded respect.

The Ali I knew was an athlete who was deeply human. Ali was unique, but this struggle was universal. There is something deeply compelling about watching how a person deals with that moment in life where they are defined not by the talents God has given, but by the things time has stolen. 

I was lucky to have a father to watch those fights with who loved boxing for the strategy and the lessons more so than the violence. We watched a physically diminished Ali teach us.  We sawthe strategy and impulse control it took to let the dangerous George Foreman punch himself out. We saw the value of sheer will as he outlasted Joe Frazier. We saw cunning, too, the way he used the energy of the crowd to demoralize and wear down a younger Leon Spinks, and the way he summoned up the magic footwork of old to take the angles away from a hard-punching Earnie Shavers. 

If he stayed too long, well, he gave us lessons there too about the dark side of passion and pride, how even our greatest strengths carry in them the potential to lead us wrong. In his later years, he got to see the world change. The issues of race and war where he had been the most polarizing of icons now we're settled in his favour, and he became a symbol of accepted truths.  If he was reduced by Parkinson's to the quiet dignity he once so powerfully refused, certainly he now had that luxury. The Greatest had earned his silence. Today, The Greatest has earned his rest. 


Thursday, May 26, 2016

OK, So About That CBC Story....

Jacques Poitras of the CBC was rightly aggrieved that I had not read his full story before a critiqued his setup Tweets.  He was doing a story on the allegations that Ministers Horsman and Arsenault had made unsubstantiated allegations against members of the judiciary and, in so doing, breached judicial independence and abused their offices.  When he tweeted links to his research that day, he cited cases of ministers resigning over privacy breaches.  I noted, perhaps too sarcastically, that this would be like assessing the fairness of drunk driving by examining the fate of shoplifters.

Jacques felt that I should have waited to see the whole story before commenting.  And, it was premature.  I'm currently overseas, running a few hours ahead of New Brunswick time, and those dark skies blinded me to the possibility that there might be more to come. So I acknowledged that I hadn't thought of that, and should have, on Twitter as he cited his displeasure with my quick whistle. 

I did not delete my tweets because I still felt it was a worthy question –“why are you looking at those?—even if I shouldn't have offered it as a final critique. If my daughter came in the study and said, “I'm doing a report on mammals.  How much does an iguana weigh?”, I might well ask why she thinks that's relevant. If she tells me to settle down and wait for the report, well…fair enough. But I'm still allowed to wonder why, pending final review. 

Of course, the story came out today. http://www.cbc.ca/beta/news/canada/new-brunswick/horsman-minister-resign-1.3599867  And I still think the research into privacy breaches was irrelevant. But now I know better where I disagree with the story. 

1. The question is over-broad. Asking “When do ministers resign?” is a bit like asking, “When do people go to jail?”, or “When are players suspended?”, or “When are there consequences?”.  It’s a quick way to allow a question to get muddied by distractions and non-sequiturs, which appears to be exactly the government’s strategy here. As I noted yesterday, if someone accuses you of stealing company money, it is not really relevant to yell “well, Tommy didn't get fired for talking back to the boss!”.  Maybe not, but at some point you need to address whether or not you stole the money. 

After all, if you really want to explore reasons why ministers have resigned, the report could have added extra-marital affairs, leaving briefing documents around, letting your department sign off on tainted tuna, expensing really pricey orange juice, treasonous behaviour, visiting a strip club, wrongly telling people eggs were tainted, and in a different era, being gay. If you wanted a list of things some opposition member, some time, demanded a resignation over, we could be here all day. None of those are things these two ministers are accused of doing, so the consequences for them seems of dubious relevance.

2. Because the question is over-broad, the reporter is led into an area of false relativism.  The CBC report leaves the reader with an unsettling conclusion –that really, the reasons ministers resign are hard to isolate and people can never agree on them.  “Who can say?”, we are invited to ask, as Homer Simpson might cite our crazy world with its new-fanged technologies.

Except…ministers resigning over judicial interference is not controversial at all.

There are genuinely grey areas in the area of ministerial conduct. This is true. But because some areas are grey doesn't mean they all are. It is a grey area when a baseball player should be suspended for a hard slide. But if I covered the Alex Rodriguez steroid trial and cited the debate over Jose Bautista’s hard slide, and concluded by saying “Well, when we suspend is a grey area!”, there is an obvious problem.

Looking at the list of reasons ministers have resigned, we can see lots of grey areas. But that doesn't mean they are all grey areas. When a minister should resign over expenses is a grey area. When the principle of ministerial accountability should kick in is a grey area when it comes to leaks of information, because departments have grown so big and complex. (It is not a grey area that a minister should resign when they personally release information. When a staffer does it, that is a grey area.)

But they aren't all grey areas.  It is quite clear that treasonous behaviour is grounds for resignation.  iT is just as clear, in 2016, that being gay certainly is NOT.  To know these areas are settled, you'd have to look specifically at those areas without importing less-settled questions to the study. 

The trouble with asking over-broad questions is we can start to engage in moral nihilism, deciding that nothing is settled so everything is permitted. But some things are known, even if not everything is known.  We can debate if it's bad etiquette to text during during a wedding reception, but I do know it's bad to text during your own wedding vows. We can debate if marijuana use should be a crime, but I do know that beating people up is. It is a very grey legal area as to how far the state can go in ensuring informed consent to end your life, but it is not unsettled that the right now exists at law.  You can always find disagreement if you draw the parameters of the debate broadly enough, but that can obscure important lines. 

It seems to be a better question to ask “Given that judicial interference consistently is grounds for resignation, is there agreement that Horsman and Arsenault’s actions amount to judicial interference?”. I would be very interested in hearing lawyers and former judges on that point. That would also lead to debate over some relevant questions the piece raises, such as the fact that the Justice Minister claims judges initiated the conversations in his case, and a few it misses, like the levelling of unsubstantiated accusations against the judiciary.

To sum up, I don't say any of this because I think a journalist has bad intentions or has anything less than a solid career. I follow this journalist on Twitter and have appreciated their work many times.  Just as Jacques can question the wisdom of politicians’ decisions on his podcast without ignoring their many good deeds and qualities, I do the same here. Journalists often help us know what questions we should think about, and so their choices in phrasing even implicit questions are worth public debate. I also note that I noted and corrected my error in calling his setup tweets a “story”.  Some acknowledgement from Don Arsenault that, yes, he shouldn't have suggested that there is an improper plan to move Madame Justice Blais to Moncton without proof was kind of a bad thing would likely give this story fewer legs than the petulance currently on display. 

In this case, I do think my scepticism was justified (if premature).  Reading the piece, I was reminded of George Carlin’s famous admonition, “I hate it when people say ‘ya never know’. Cause sometimes, ya know.”

Tuesday, May 24, 2016

THE MEETING AND THE DAMAGE DONE

Bill 21, the Gallant government’s bill to limit the ability of the Court of Queen’s Bench to manage the placement of judges, is a brief piece of legislation that raises a number of questions.

Those questions are, specifically, “What the hell?”, “Why?”, and “We need this because….?”

To those exclamations of bafflement, we may now add a fourth, courtesy of two cabinet ministers Stephen Horseman and Don Arsenault.  That question is “What were they thinking?”

Let's recap recent events, which have done nothing to enhance the already-shaky reputation of the Gallant government for being able to pick its hindquarters out of a police lineup surrounded by holes in the ground. 

Near the start of the legislative session, the government introduced Bill 21.  The Bill proposed an end to the power of the Chief Justice of the Court of Queen’s Bench to move judges to new judicial districts and require them to establish residence within 50km of their domain. From now on, should the Bill pass, a judge could only be moved if the Minister of Justice and the judge themselves agree. 

The problem arose when the Chief Justice of the Court, Mr. Justice David Smith, stated that he had not been consulted on the Bill and that he considered it an affront to the principle of judicial independence. The government had consulted with the acting Chief Justice in his absence, but the Chief Justice’s reaction was clearly negative.

The curious part of this chapter is the complete and utter inability to articulate why the Bill was needed.  The Chief Justice articulated his concerns with the Bill so that, whether one agrees or not, one can know why he has arrived at his position.  For the government’s part, it appears that Bill 21 somehow made it through drafting, cabinet, committee and three readings without anyone caring about it, a kind of Immaculate Legislation.  The Justice Minister allowed that he could not think of a single example of where he would use these new powers to override the Chief Judge, and no one from the government seemed eager to provide a statement of why the Bill was needed. 

When governments are determined to have a Bill pass over serious opposition, but won't say why, people get suspicious. It is like having your teenage son ask repeatedly if you'll be out of town any weekend soon, but when asked why he cares says “Oh, no reason.”  It gets people on alert. So the Bill was already under a spotlight when the Legislature reconvened for a rare event which old people will someday fondly recall as “legislative sittings, before that young Gallant took over.”

As the Bill was being debated, the government decided that Energy Minister Don Arsenault should speak. This was a curious choice. Not only is his portfolio miles away from the matter at hand, but Don is not known as a politician with a deep appreciation for the subtleties of legislation. 

However, Don Arsenault began to address the historical tradition of judicial independence.  Asking him to do this is like hiring Tinsel, the Balloon Animal Clown, for your kid’s party and then asking him to juggle meat cleavers. He's not had much practice, and there is significant downside. 

Mr. Arsenault launched into what can only be described as a screed. He read a list of the 13 transfers of judges’ locations that have happened on Chief Justice Smith’s watch, predictably said this harmed the North to the benefit of Moncton.  He seemed particularly to focus on judges appointed by Conservative governments (which I hasten to add, is not the same as “Conservative judges”). The Minister then added a truly bizarre twist, claiming that Madame Justice Marie-Claude Blais may wish to move from Moncton, and that this would likely be arranged “between friends” as the other 13 moves had been. 

Where friends meet, some say.  OK, Don Arsenault says.

If there was any proof of any of this, it remained within the fevered mind of the Minister. A lawyer representing Chief Justice Smith soon pointed out that this seemed to be a lot of defamation without proof. He also corrected the record on a few fronts, including the fact that the Minister claimed that the Acting Chief Justice had approved of the changes when she actually had warned they might be unconstitutional. 

Two days later, in Question Period, the Justice Minister added another bizarre chapter to the saga. Asked about the Bill, he noted that the government was finally "including judges” and that a number of judges had called him with their support for the bill, out of fear of being involuntarily moved. 

Later, as questions began circulating about the propriety of speaking with judges, the Minister called at least one reporter to say that he had “been unclear” when he claimed that judges had called him, and that no judges had ever called him. Some unnamed judges  had, however, approached him at unnamed social  functions to express their delight at Bill 21.

And this is where the sage ends for now, with Ministers tying themselves in knots to pass an absolutely essential bill that will avoid an unspecified harm and be used in situations that it's sponsor cannot imagine. 

The Facts On Judicial Moves

The CBC’s Jacques Poitras helpfully reported on the 27 instances in a quarter century where judges have moved judicial districts. Breaking these down may help separate fact from spin. 

To understand this, know that there are eight judicial districts in New Brunswick, as fixed by regulation (which means cabinet could change this without legislative approval). To be a judicial district is to be assured, by legislation, that at least one judge must be assigned there and by law establish a residence within 50 kilometres of the court in that city or town. The 24 full-time judges of the Court of Queen’s Bench are right now broken down between the 8 judicial districts as follows: six judges sit in Moncton and Saint John, four sit in Fredericton, two each in Miramichi, Bathurst and Edmundston, and one each in Woodstock and Campbellton. 

When there is a vacancy due to a departing judge, the federal government may appoint a judge. The appointment will generally specify a judicial district.  

If we look at the 27 judicial moves we could think of a region “gaining” or “losing” a judge, in one sense. If you wanted to do that analysis, for instance, in the case where Mr. Justice Bruce Noble was moved from Saint John to Fredericton, you could say that Fredericton “gained” a judge and Saint John “lost” one. 

If you did that analysis, you would find that almost every judicial district had gained and lost a judge at some point. The largest net “gainers” would be Moncton (+6) and Fredericton (+4). However, contrary to the government’s expressed concern for Northern New Brunswick, the outflow is not from the Campbellton, Bathurst or Edmundston centres. The largest net “losers” are actually Woodstock (-4) and Miramichi (-3). In fact, the most common moves are Woodstock to Fredericton and Miramichi to Moncton. 

You will also notice that I put “gain” and “lose” in quotation marks. This is because almost none of these moves (I can't find one for sure, but I can't trace every move) actually alter the number of judges in a district. The Judicature Act already protects smaller districts because they must have a judge.  So if a judge moves from Campbellton to fill a vacancy in Edmundston, the result is that now the new judge will be appointed in Campbellton. 

Of the changes that have occurred since I joined the bar in 1998, of 50% appear to be “repatriation” moves, where a judge is returned to the place where they lived prior to appointment. For example, the fact that Mssrs. Justice Noble and Morrison moved to Fredericton seems to simply be a case where they were appointed by the federal government to a place where they did not live, and they moved back to Fredericton once a vacancy appeared there. Far from any great conspiracy, it seems to be usually quite simple. When vacancies arise, there may be judges that are high on the list of the federal government. To get them into the judiciary, they will often be appointed wherever there is a vacancy, serve in that new center, and then ask to go back to their original home when there is a vacancy. 

This is not a bad thing. For one, it allows new judges to start in smaller centres and then go to the larger districts as they gain experience. Most (though assuredly not all) complex litigation will be filed there, if only because that's where larger businesses and governments exist. As well, lawyers are even more concentrated than the general public in larger centres. That's not to say that good lawyers come from big cities, only that many good small town lawyers still prefer to go where the potential clients are. And the lawyers who like to do the work that often (though not always) predicts an interest in becoming a judge often wind up in government, at universities, or at big firms that allow complete specialization are even more disproportionately in the big cities. 

Again, that's not to say there aren't excellent lawyers and potential judges in small centres. There are. They are just disproportionately clustered in big centres, and if all lawyers are equally good, the place with five times as many lawyers will have five times as many lawyers who would want to become judges. 

So, to conclude, changes never really result in a region losing a judge. They may see a more experienced judge go to a bigger centre to either return home or expand their professional challenge, and a new judge gets appointed to fill the old vacancy. It's hard to see the public harm in that. 

Judicial Independence

You may reasonably ask why everyone is so big on judicial independence. Put simply, it is a hallmark of a functioning democracy. To keep disputes from being settled by force, systems need a way of settling them that is credible, so that even when we lose we accept the process. People who come before judges need to believe that they will have their cases heard on the merits. Part of that is how the judge comports themselves – judges avoid comments or interference in politics so that we do not perceive that they may be judging based upon ideological or partisan interests. As an example, look at the recent school closure cases. The judges took great pains to explain that their decision had nothing to do with whether the government made the right policy choice, only if the rules were followed. That is how it works.

The other part of this is that politicians need to do their job and stay the hell out of situations where they can be perceived as influencing judges.

When I was Justice Minister and Attorney-General, I often got calls from people asking me to step in, to see that charges were brought against someone, or that a custody hearing went their way, or some bad decision be set right. It didn't always make me popular, but my job was to make it clear that I could not do this. While it may be tempting to think of an all-powerful minister who sets things right, this can destroy the system long-term.  If you get charged with a crime or lose custody of your child because the complainant lives in the A-G’s riding or threatened to go to the media, that will destroy faith in the system. So I would explain their rights, offer any advice I could on getting legal help, and even tell them how to complain to the Judicial Council of they felt a judge was unfair. 

In other words, ministers have to take care not to give the appearance of trying to influence judges. This includes using their ability to get media – you cannot give the appearance that you will open a judge up to public attack or ridicule if their actions displease you. 

The Dangers With Don’s Words

While Minister Horseman has made the more easily-understood breach, Minister Arsenault’s intentional trashing of the Chief Justice raises more serious issues.

For starters, the Minister abused his parliamentary immunity in the extreme.  I see nothing in his statements that looks like even an attempt to offer proof for what are serious allegations that the Chief Judge has improperly managed the judicial system based upon improper considerations, “among friends”.  He has made allegations that are demonstrably untrue on the facts regarding judicial transfers. And he has impugned Madame Justice Blais by suggesting based on no proof at all that she is angling for a move and conspiring with the Chief Justice, which could undermine faith in her ability to adjudicate disputes in Saint John. 

If the Minister has proof of this, he has the duty to raise the matter with the Judicial Council, a neutral body that can hear complaints where actual proof and argument can be made. If he is too cowardly to take his words there to be evaluated, he must withdraw them fully.

If he will not do this, it is a tacit admission that he has tried to intimidate the Court.  He sent a message that if a judge displeases him, he will use his legislative immunity and public profile to launch attacks on that judge. For judges who may hear cases involving the government, knowing a minister may do this with impunity could be perceived as having a chilling effect on the courts. I don't expect Don Arsenault to learn this at this point in a political career that has largely been built upon not knowing things that might make him a less-willing attack dog. But Brian Gallant and Serge Rousselle have professional duties to change his actions, if not his mind. He has embarrassed them, or at least they should be embarrassed. 

If there are politicians named Donald who don't make up accusations, please come forward.

Minister Arsenault has also failed in his fiduciary duty to the government he is part of, because he may have singlehandedly given courts a reason to overturn his government’s law.  Minister Horseman may not be able to articulate a motivation for Bill 21, but Minister Arsenault did.  However, the one he articulated is not a proper one. By raising Madame Justice Blais’s name, he suggested that the point of the Bill for him is to make sure that a former political foe cannot move if she wants to. He didn't articulate why the would be a public interest in this, either, it seems simply to be based on personal and political animosity. This is, of course, a completely improper reason for a bill, and legislative immunity does not mean that it cannot be introduced as evidence in a court challenge. 

If the Premier is too weak to fire this Minister, both for undermining the justice system and blowing up his own government’s legislative agenda, then he is not really in charge of government. 

The Curious Case of Minister Horseman

Everyone gets the obvious problem with Minister Horseman’s comments. It was false. You don't need me to explain that saying you got more than one supportive call from judges is a lie if you actually got zero calls from judges. You also can apply your own test to his later claim that he was simply “unclear”.  To be unclear means that your words can bear more than one interpretation.  I do not know of another meaning for what the Minister said. 



In the Parliamentary tradition, members are given immunity from being sued for libel, but this isn't a free pass. The price is that they have a high duty to not deliberately mislead the House. The reason rules don't allow a member to accuse another of lying in debate is because it is a serious breach of a member’s responsibilities, and can must be raised and reviewed by a Committee on Privileges for discipline. (The reason you can't just say it in debate is the same reason Arsenault can't just accuse the Chief Judge of misconduct in debate – in both cases, if you're not ready to raise a formal complaint and prove it, don't throw the accusation around).

It would be hard for Speaker Collins to rule against an Opposition privilege motion that the Minister misled the House. 

But we all know a lie.  What may be less obvious is the breach of duty that Minister Horseman committed as Justice Minister. 

In the parliamentary system, Chief Justices speak for the Court on administrative matters and he and the Minister may rightly discuss those matters. Ministers should not be engaging in discussions with judges otherwise. To discuss the Bill with judges other than the Chief is to engage in interference with the operation of the Court. To speak of its merits could be seen as improperly engaging judges on a matter that might be the subject of litigation.  The U.K. a ministerial guide makes this clear.





A number of Canadian ministers, and others in the Commonwealth, have resigned due to phone calls with judges on improper matters. Jean Charest, David Collennette, John Duncan, John Munro, Irish Minister Bobby Malloy – all resigned to be honourable after making a mistake and calling judges.

If the Minister thinks that changing the talk from a call to a conversation changes that, he is wrong. After all, it isn't the phone that mattered in those cases, it is the improper conversation. If someone was discussing a bribe, for instance, it doesn't matter if it is by phone, in person, over Skype or by passed notes.  It is the substance that is wrong. The same is true here. The Minister should have ended those conversations, not cited them. 

Further, it is hard to believe a judge would start that conversation, because legally-trained people know better. The Minister has not only accused judges of starting potentially-improper conversations, by refusing to provide details he has impugned all 24 judges. 

The Minister needs to provide details of these alleged encounters promptly. And if he indulged those calls, he should step down at least briefly. If he lied about them, he should step down for quite some time. 

A Question of Honour

These rules can sometimes seem harsh, when a generally well-meaning person like Stephen Horseman is involved. But ministerial resignations for serious breaches are a tradition because they recognize that a minister’s ambition cannot be more important than the integrity of the system.  Duties to protect private information, respect judicial independence, keep budget details secret to protect investors – when these are breached a minister steps down even if they didn't mean any harm.  As Bernard LeBlanc said when he resigned after a staffer used his personal account to send private information, it is a question of honour to show respect for the system.

It is tempting, in a partisan atmosphere, to try to dodge consequences. But governments are not supposed to care only about the game, but about the integrity of democracy. They are guardians of something bigger than themselves. 

The Premier has watched his members applaud colleagues for what are attacks on the judicial system. It is not clear he understands or opposes this, because he has dodged the issue thus far. Yet if he does not act, or if he tries to shuffle the two men to new cabinet jobs without consequence, he will be telling us volumes about his character. Even in the heat of politics, democracy depends upon respect for certain lines that should not be crossed.

History has a way of outlasting ephemeral power, and this premier is young enough that he will live to read early drafts of history’s judgement of his charge. If he stays silent, this episode will someday be a prominent exhibit in the story of a premier too callow and too weak to defend the rule of law he took an oath to uphold. His name will likely be a cautionary tale of one leader who forgot the warnings of Alexander Pope for those who try to ignore ethical lines.

Fools! who from hence into the notion fall 
That vice or virtue there is none at all.
Is there no black or white? Ask your own heart, and nothing is so plain
’Tis to mistake them, costs the time and pain.

The Curious Need To Make Ruth Ellen A Victim

I've long since lost any illusions about our ability to view every political issue through a partisan lens. Partisans will praise their side for principled and worthy stands when in Opposition, and then view the exact same behaviour as pointless obstructionism once their side is in government. It happens. I'm pretty sure it happens to me too, though I try to be aware of this. 

The minor fracas in Parliament seemed to have reached a conclusion that all but the shrillest partisans could live with. The Prime Minister accepted the collective wisdom of parliamentary experts and journalists that, in a moment of frustration, he had crossed a line that should not be crossed. In losing patience with the Opposition and pushing through a crowd of chatty MPs to drag the Tory Whip to his seat, he had behaved in a way that prime ministers historically have not. 

Mark Twain once remarked that intelligence is the ability to entertain two conflicting thoughts at the same time. Intelligent people could conclude that the Prime Minister was right to apologize and to show good faith by retracting rule changes that would limit debate. Those same people could also believe that, once that apology was issued, that the Opposition parties would have been well-served to show their sincere interest in the right to debate and examine bills by actually debating and examining bills and moving on from the whole kerfuffle.

One person who seemed truly innocent in all this was the MP for Berthier-Maskinong√©, Ruth Ellen Brosseau. She was the MP who the Prime Minister, as he reached through the crowd, elbowed in the chest. She said it hurt quite a bit, and between the pain and the gravity and chaos of the moment, she needed a few minutes and missed a vote. He, in turn, said he was sorry and especially regretted not watching out for her. 

That would be a fine place to leave it. But then idiots got involved. 

Some Liberals tried to go back and justify what Mr. Trudeau agreed was not justifiable, elevating the little coffee clutch of chatty MPs in the aisle as some kind of blockade or obstruction that threatened democracy itself. As veteran Maclean’s columnist Paul Wells noted, if you don't think MPs chat in the aisles in a break, you clearly have never been in Parliament. (Or, I can assure you, in the New Brunswick Legislature). Or you can believe eminent parliamentary historian Michael Bliss, who confirmed that chatting in an aisle in a break, or even slow voting, is very ordinary and physical dragging MPs through them is not. Or believe Gord Brown, the Tory MP who has confirmed that he wasn’t at risk of missing a vote or in need of prime ministerial rescuing. Bottom line – if that was a blockade, I get blockaded at the farmer’s market samosa booth every weekend. 

And some NDP and Conservative MPs seemed way too glad to finally have an opening to slam Mr. Trudeau, who has had one hell of a political honeymoon.  The Conservative motion speaking about “molestation” of Ms. Brosseau was clearly over-egging the pudding. More justifiably upsetting to many Canadians was the tendency of some MPs to slip into the language of condemning violence against women, speaking of “safe spaces” and likening Ms. Brosseau’s plight to the struggle of women facing violence to be heard. One NDP MP suggested getting “victim impact statements”, which understandably caused a collective “oh, for Pete’s sake” among level-headed observers. And word of Tom Mulcair raising Ms. Brosseau’s gender in yelling at Mr.Trudeau seemed a bridge too far – while the Prime Minister had copped to a carelessness that could have led to hitting someone, his carelessness had no basis in gender or even intent. 

One point must be made here.  Exactly NONE of those statements came out of the mouth of Mr. Brown or Ms. Brosseau. Mr. Brown said simply that he needed no help and hadn't appreciated the Prime Minister pulling him where he was quite capable of getting on his own. Ms. Brosseau said that she got elbowed in the chest and it hurt, and the whole thing overwhelmed her long enough that she missed one vote. 

So, intelligent people can likely entertain certain conflicting thoughts here. They can think the Prime Minister acted like a bit of a jerk and did well to apologize, yet does not deserve any attribution of intent or sexism in his careless elbowing of Ms. Brosseau. And we can also think of cases where we can think of someone meaning us no harm and having no ill intent, but managing to hurt us anyway. (Fellow actors who do dance numbers with me have been elbowed and will be elbowed again). 

There are certain things that intelligent, decent people do not think to do. They would not be motivated to start reviewing the tape like the Zapruder film in an obsessive effort to reach a diagnosis as to whether Ms. Brosseau actually felt pain or not. They would not begin speculating that she likely tried to provoke Mr. Trudeau to elbow her in the chest. They CERTAINLY would not swarm Ms. Brosseau’s Facebook and Twitter feeds to call her things like “a waste of skin”, “hysterical bitch”, “lying twat” and “drama queen”, urging her to resign for the crime of having suggested that catching a stray elbow from the Prime Minister might have been less than an honour. 

There are a number of reasons this is silly.

First, let's all have some humility about watching a silent video filmed at a distance. I don't know how much that contact hurt. Neither do you. Neither does any prize dipstick on Twitter claiming to have conducted an analysis of facial expression and nerve endings by video. If a doctor tried to reach a conclusion on pain threshold based on that silent video alone, that doctor wouldn't even get to take the witness stand in court. 

I do know that this is a young single mother who supported her child by working in a campus bar.  I've been in campus bars, and even that campus bar. Getting jostled isn't new to her, and if she was prone to make it up, we would know it. It all appears to be a quick and spontaneous set of events to me. If you can grant that the Prime Minister acted without calculation or intent in causing the contact, you really have no good reason not to extend the same presumption to the recipient.

Second, it is ugly in the extreme when people on social media start saying she shouldn't have been in the aisle, or ask why she didn't move away.  She was also blocked in by MPs and desks around her (because they were all hating). And even if she was slowing down a vote to show her disagreement (as Mr. Trudeau did to Mr. Harper in the day), that isn't asking for an elbow. 

Third, some people seem to have lost all self-awareness in their need to attack her. Ms. Brosseau’s last two Facebook posts were regarding a festival in her riding and some issue advocacy with MP Guy Caron. Neither mentioned the elbow. And at last look, 644 people had left posts asking why she was milking the incident.  I find it hard to believe that many people are dumb enough, or wilfully blind enough, not so see that if a woman posts on an unrelated topic and you respond by screaming that she needs to move on from getting hit -- you're the one who can't move on. 

But what is bothering me most, as a citizen and a guy about to turn a daughter loose on this world, is how unequal and unnecessary all this vitriol and plain old meanness has become. If other MP’s, even of the same party, have said dumb things that are unfair to the Prime Minister, the normal course of reply is to contact and refute the MPs who actually said those things. All Ruth-Ellen Brosseau did was say that an elbow to the chest hurts, and an elbow from the Prime Minister that gets everyone yelling is especially rattling. 

In fact, Mr. Brown has received NONE of the same vitriol or attacks, despite the fact that his party brought the molestation motion and he also said he didn't appreciate the Prime Minister pulling him.  Ditto Peter Van Loan, the middle aged man who moved a motion describing what the Prime Minister did as physical “molestation”.  Even when John Oliver mentioned this weird word choice, no trolls set upon him the way they did on Ms. Brosseau.  Even Speaker Geoff Regan described it as “manhandling” MPs.  No man has faced the online hate or the depth of name calling that Ms. Brosseau has, which raises an ugly question about why some people seem so angry at a woman saying she got hurt and it shouldn't have happened. 

This is especially true because it is completely and utterly unnecessary to attack her to defend Mr.Trudeau from the more ridiculous attacks. He's already apologized for being careless,  and asked us to believe he is sincere, so it does him no good to argue that he has nothing to be sincere about. As for the over-the-top suggestions about violence against women, the argument that completely exonerates him is that the contact was accidental and gender blind. Given that this is true even if Ms. Brosseau is honest in saying she felt pain, what is the pathological obsession with making her a liar?  Can we not like the Prime Minister and support him without flying into a rage at the suggestion that his elbows are pointy and can hurts a collision?

This is no partisan screed, because no elected Liberal has attacked Ms. Brosseau in this over-the-top way. Some, like Minister Catherine McKenna, have even called the haters out, and good for her. But what is happening makes me sadder. A lot of our fellow citizens seem so genuinely resentful of a woman saying she got hurt and didn't like it that they will repeatedly watch a video and lie about what they can glean from it.  They will attack that woman with nasty names and threaten to take her job from her.  They will attack her for the comments and actions of others, but leave those people alone. And they are quite willing to send her a message that, once a woman complains about being hurt, that incident will brand her and define her even when she tries to move on to other topics that engage her in her job or as a citizen. In short, there is something that seems to drive some of us to attack and destroy a woman who complains about a man’s conduct, even if she doesn't really complain very much. We have an unhealthy and pathological need for Ruth-Ellen Brosseau to be a liar, even if that doesn't change what Mr, Trudeau did, and even if it inspires us to name-calling and attacking. 

What Justin Trudeau accidentally did to Ruth-Ellen Brosseau was an accident and bears no relevance to violence against women. What some of our fellow citizens are doing to Ruth Ellen Brosseau afterwards is ugly, intentional and tells us a hell of a lot about why women who are victims of real domestic violence don't come forward. 

For the love of God, people, stop.

Thursday, May 19, 2016

POLITICAL ETHICS AS RORSCHACH TEST

My take on the Trudeau thing...because I've been involved in parties on "the left",  I have more FB friends who favour "progressive" politicians. And I'm seeing a number of them try to defend or minimize what happened (which, taking what is uncontested from the news, is that he was frustrated with the opposition being slow to vote, pushed through a group of MPs to pull the Conservative Whip through a crowd until that MP told him to get his hands off him, and in doing so accidentally elbowed Ruth Ellen Brosseau, who left the Chamber as a result). 

So, I'm gonna ask....how did you react to the video below when it happened?  


went back and checked...there was NO accusation that this collision was anything but accidental contact on Ford's part, but it was a politician becoming careless by acting to a heated political situation in a break.  If anything, Trudeau's breach is a bit more egregious, because he admits he went there to make physical contact with at least the Tory Whip.

One of the things that worries me in politics these days is that we are losing firm lines of behaviour of what we should never do. And part of the problem is we let our own side away with stuff that used to be beyond the line. I see friends who decried Harper the autocrat giving Gallant a pass on shutting down Legislative debate and ducking media.  Friends who call Kathleen Wynn a liar will excuse absolutely bizarre conspiracy peddling by Donald Trump.  And don't get me started on the "everybody does it" stuff -- it's often a lazy way of saying that, because every politician makes mistakes, we can stop decrying truly undemocratic behaviour. 

You want to say this isn't the only basis on which to judge Trudeau? Fine...I actually agree. That his apology closes the issue? Fair enough. But don't spin it or excuse it, please. Opposition MPs slowing down an inevitable closure vote in protest has generally been in the bounds of discourse (open to criticism, sure, but not beyond the pale). Losing your temper and putting hands on people is not. That line matters. And if you're giving one guy a pass because he's on your team....you're part of the problem.

UPDATE: After the Prime Minister offered a true apology (not an "if I offended anyone" apology) that rose above the spin his more hyper partisan supporters are trying to sell, I offered the following (unsolicited and likely unwelcome) advice to the opposition:

In keeping with my earlier post about holding the party you support to the same standards of behaviour as the others....

Now that the PM has apologized in a clear, unreserved and decent fashion AND withdrawn the motion to limit debate in the Commons, the Opposition would do well to show that it will use its right to debate constructively. This would involve withdrawing the motion to keep debating Trudeau's mistake, debating the assisted suicide bill with substance and seriousness, and avoiding any description of the fracas with a tone and language that sounds like you actually witnessed a colleague being devoured in a zombie apocalypse.

Avoiding these steps for another 24 hrs may cause Canadians to revise who has the moral high ground here.