Sometimes the Government Cannot Defend Itself

On January 31, 2013, Fiona Johnstone won her discrimination case against the federal government at the Federal Court (Canada v. Johnstone). Many legal experts expect that the government will not appeal the decision even though it has the potential to adversely affect every employer in Canada. In this case, the government has failed to fully defend its own interests and has thereby failed to protect the interests of other affected Canadians.

Johnstone complained to the Canadian Human Rights Commission in 2004 because she was unable to maintain full-time employment status due to her rotating shift schedule and ensuing difficultly securing childcare. Without full-time employment status, she was ineligible for workplace benefits. The Canadian Human Rights Tribunal (Tribunal) found that due to this ineligibility, Johnstone was the victim of an employment policy that discriminated against her on the basis of family status—i.e. having children requiring childcare.

The Federal Court affirmed the Tribunal’s decision that Johnstone’s childcare schedule should have been accommodated by her government employer, the Canadian Border Service Agency (CBSA). Effectively, the decision means that Johnstone has a right to benefits and a job that fits the time constraints of her personal life. It also demonstrates that both Johnstone and the court expect others—in this case, Johnstone’s employer and fellow employees—to shoulder some of the burden of Johnstone’s life-choices.

Robyn Benson, head of the Public Service Alliance of Canada, called this ruling “a huge win for Canadian workers with family obligations”, and that “it is now clear that employers must carefully consider each and every family status accommodation request and accommodate [those requests] short of undue hardship”.

It is unsurprising that organized labour would gleefully endorse this ruling—it greatly expands employer obligations to employees. But if Benson’s assessment proves accurate, employing young workers (particularly women) with family obligations will become more complicated and costly. This is why this decision will ultimately backfire and not have the desired effect of preventing future discrimination because instead of protecting the interests of young workers with family obligations, this ruling encourages employers to find subversive and clandestine means to ignore the job applications and advancement requests of otherwise qualified young workers since hiring and promoting those workers is now associated with greater risk and higher costs.

What has been the government’s response? In cases like this, the government cannot be trusted to fully defend its own interests in court because it has an insufficient incentive to put up a good fight. Moreover, lacking sufficient incentive, the government may mount a less than rigorous defence because the financial burdens associated with an unfavourable court decision are ultimately borne by the taxpayers.

In defending its interests against Johnstone’s human rights complaint, the government advanced three arguments. First, that the term “family status”, as used in the Canadian Human Rights Act, should not be construed to include childcare obligations. Second, that Johnstone had not satisfied the prima facie test for discrimination. And third, that the tribunal lacked the authority to order the remedies it awarded to Johnstone. These arguments—although interesting to lawyers—do not truly strike at the heart of the matter, especially from a private employer’s perspective.

The government did not argue that Johnstone has no legal right to receive workplace benefits, that human rights legislation should not be used to force others to bear some of the costs of Johnstone’s personal life, that Johnstone was requesting preferential treatment, or that a victory for Johnstone would be a setback for employees with childcare obligations. Although each of these runs contrary to existing and established precedent, private employers had an interest in these arguments being advanced in court.

Of the arguments the government did advance, none addressed whether human rights legislation can or should provide the basis for a positive rights claim, or, in other words, whether the legislation could be used to force a defendant to expend his own resources to provide some good or service to the claimant. No where did the government argue that human rights legislation should not be used as a means of transferring the costs of an individual’s chosen lifestyle to other members of society—in this case, from Johnstone to her employer, her fellow CBSA employees, and ultimately, taxpayers.

A private employer would have defended himself vigorously against Johnstone’s complaint because that employer would directly bear the financial burden of losing the case. The court’s decision means that every employee with childcare obligations in circumstances similar to Johnstone’s must receive accommodation from employers short of undue hardship. This greatly complicates an employer’s task of generating an employee work shift schedule, as a particular segment of employees have effectively been given trump cards permitting them to avoid working undesirable shifts. Even more, this decision not only restricts employer freedom, it also has a negative impact upon employees who do not have childcare obligations since it is these employees who will be scheduled to work the undesirable shifts.

But the government does not bear its own financial burdens the way that a private employer does. A ruling, regardless of the result, would have no direct impact upon the financial bottom-line at the CBSA since it is operated by the government and funded by taxpayers. Further, since it is the government’s legislation that enabled Johnstone to make a complaint, government lawyers were unable to argue that the law is unconstitutional, poor policy, or that it produces absurd results. In other words, not only did the government lack incentive to defend itself fully, it may have had an interest in advancing an incomplete defence to preserve its own legislation.

There are other examples of when the government cannot mount a rigorous or complete defence. On April 26, 2010, five applicants sued the Canadian and Ontario governments for failing to develop an effective housing strategy to deal with “inadequate and high-priced housing” (Tanudjaja v. Canada). The applicants are advancing a positive rights claim asking the courts to force taxpayers to fund their lifestyles. The Attorneys General of Canada and Ontario have filed motions to dismiss the application. And like the Johnstone case, should this application proceed, both government defendants will be incapable of mounting a complete defence.

For example, one argument unavailable to the governments’ lawyers is that the governments’ own policies and regulations are the primary cause of inadequate and high-priced housing. Economists Edward L. Glaeser, Joseph Gyourko, and Raven E. Saks answer the question posed by the title of their own paper, “Why Have Housing Prices Gone Up?”, with,

“…the evidence points toward a man-made scarcity of housing in the sense that the housing supply has been constrained by government regulation as opposed to fundamental geographic limitations.”

And as long-time Governor of the Reserve Bank of New Zealand, Donald Brash said in his introduction to the 2008 Demographia survey,

“…the affordability of housing is overwhelmingly a function of just one thing, the extent to which governments place artificial restrictions on the supply of residential land.”

Although this may be a controversial proposition in the discipline of urban planning, notice that no government that already places “artificial restrictions” on residential land supply could defend itself by advancing Brash’s argument in court. To do so would be to undermine its own interventionist programs. Instead, in the Tanudjaja application, the Federal and Ontario governments will be forced to justify their levels of interference in the housing market rather than address what Brash thinks is the root of the problem.

Of course, this will suit the five applicants’ positive rights claim well. As long as the arguments before the court concern only the adequacy of the governments’ housing policies and not whether governments should interfere in the housing market, the debate will not address the fundamental problem—that “artificial restrictions” drive-up housing costs. The prevailing assumption shared by all parties to the Tanudjaja application will be that government interference in the housing market is justified and perhaps necessary. No one will suggest that the court undergo a thorough examination of how government intervention creates housing shortages and high prices, despite that it would be in the interests of taxpayers to do so.

The Johnstone and Tanudjaja cases are excellent examples of litigation where the government has an insufficient incentive to defend itself rigorously and completely. In both cases, the government is defending itself against a positive rights claim. In every positive rights claim advanced in court, the claimant is asking that his or her actions be indemnified by the defendant. When such a claim is made against a private defendant, that defendant has a significant interest in defending himself since he will bear the costs of losing. But this is not true for governments.

Governments do not bear the financial burdens associated with an adverse court decision in the same way that a private defendant does. When a positive rights claim is successful against a government defendant, the costs associated with that unfavourable ruling are dispersed across a broader segment of society and ultimately borne by taxpayers (for another example, see Moore v. BC). In essence, the government merely functions as a conduit passing on to others any new burdens it receives.

There are two obvious problems resulting from this. 

First, when the government is defending itself from a positive rights claim, taxpayers have an interest in the outcome because ultimately they will have to bear the cost of an unfavourable decision. If the government—for whatever reason—fails to fully and completely defend itself, taxpayer interests have not been duly represented before the court. 

And second, since every court decision has a precedential value, as similar adverse decisions accumulate over time, the body of case law will become more and more skewed in favour of a claimant advancing a positive rights claim.

This piece was first published by the C2C Journal April 23, 2013.

Canadians should be free to speak without fear

Last Wednesday, the Supreme Court of Canada ruled that governments are permitted to violate the right of Canadians to speak freely about issues of public importance in order to stamp out any expression they consider hateful. (SK v. Whatcott)

In 2001 and 2002, William Whatcott, a self-proclaimed anti-gay, anti-muslim, anti-you-fill-in-the-blank activist, distributed offensive flyers in Regina and Saskatoon. The Saskatchewan Human Rights Tribunal ruled that the flyers contravened the province's hate speech prohibition.

On appeal, the Saskatchewan Court of Queen's Bench upheld the tribunal's decision, while the provincial Court of Appeal overturned it. The Supreme Court of Canada heard the appeal in October 2011.

The Supreme Court of Canada's decision is a devastating blow to free speech and the rights of every individual Canadian. In principle, this decision means that the government can silence your speech on issues of public importance if that speech is deemed hateful. It doesn't matter if what you said was true, that it caused no one any harm, or that you never intended to say anything discriminatory - you can still be dragged into court and lose for committing a victimless crime.

In its 1990 Taylor decision, the Supreme Court of Canada reached a similar conclusion - with one salient difference. In Taylor, Justice Beverley McLachlin (as she was then) wrote a strong and clear-headed dissent. She canvassed many of the problems with hate speech prohibitions.

Hatred is an ambiguous and emotionally charged term, capable of a wide range of meanings among different people. Incapable of precise definition, it inevitably functions as a proxy for the personal and political views of the judiciary. Further, a successful hate speech prosecution requires no proof of actual harm or intent to discriminate, and truth is no defence. These are serious, irremediable flaws.

Fast-forward to 2013. Unlike Taylor, the Whatcott decision is unanimous and monolithic - there is no dissent. The Supreme Court of Canada has closed ranks and will no longer broach alternatives. This means that McLachlin's Taylor dissent has effectively been redacted, leaving us with muddled confusion.

The problems canvassed in Taylor are not resolved in Whatcott - all we get is the Supreme Court of Canada's undivided assertion that no problems exist. Does that imply that there never was a problem? What has happened in the intervening 23 years to change McLachlin's mind?

It wasn't always this way. The Supreme Court of Canada once recognized that the freedom to express unpopular and even offensive ideas is of foundational importance to a free and democratic society.

In 1986, Justice William McIntyre said,

[Freedom of expression] is one of the fundamental concepts that have formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

In other words, the continued existence and thriving of our free society is dependent upon the right of each individual to freely express his or her ideas without fear of reprisal.

There's one simple and ironic fact that cannot be overlooked in all of this.

If Whatcott is on a hate campaign, Saskatchewan's hate speech prohibition has provided him with a powerful means to disseminate his views. Each judicial decision has reproduced and circulated his materials. Had no complaint been made about Whatcott's flyers in 2001 and 2002, they would have faded into obscurity and this marginalized, bigoted, fundamentalist would not have received national media coverage.

At this stage, it's entirely likely that Whatcott will be elevated to the status of folk hero by those who share his prejudices. Instead of facing a legal prosecution, lending credence to the appearance of martyrdom, Whatcott should have been ignored or debated. It's best not to silence bigots - let them speak, freely. As the old proverb says, even a fool who keeps silent is considered wise.

The Supreme Court of Canada has shown itself unwilling to uphold the right of Canadians to express their views without worry of a state prosecution. The best answer to this problem has always been legislative. Canada's hate speech laws were enacted by governments and can be repealed at any time by those same governments. It's time to hold our politicians' feet to the proverbial fire for the good of all Canadians.

This piece was originally published in the Calgary Herald on March 4, 2013

Dean Steacy was wrong: Freedom of Speech is a Fundamental Canadian Value

The right to freedom of expression in Canada was not created by the Charter. Canadians enjoyed a right to free speech and freedom of expression prior to 1982.

Before she became Chief Justice, Justice McLachlin said in Keegstra that “freedom of speech is a fundamental Canadian value”, and 

Freedom of speech and the press had acquired quasi-constitutional status well before the adoption of the Charter in 1982. 

She further said that, 

The enactment of s.2(b) of the Charter represented both a continuity of [this] tradition, and a new flourishing of the importance of freedom of expression in Canadian society. 

Quoting from A. W. MacKay, "Freedom of Expression: Is It All Just Talk?" (1989), 68 Can. Bar Rev. 713, Justice McLachlin went on to affirm that, 

Freedom of expression was not invented by the Charter of Rights and Freedoms... 

Justice McIntyre shared Justice McLachlin’s view. In the Supreme Court of Canada Dolphin Delivery decision of 1986, Justice McIntyre indicated the fundamental importance of freedom of expression for our democratic institutions. 

Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

Now that you know all this, doesn't it make you wonder what Dean Steacy (the lead Canadian Human Rights Commission investigator in the Marc Lemire case) meant when he said,

Freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept.

Actually, Mr. Steacy, freedom of speech is a fundamental Canadian value that the Supreme Court of the land has ruled responsible for the maintenance and protection of Canadian society.

No Separation of Church and State in Canada

The National Post reported on December 19, 2012 that a disgruntled Saskatoon resident is about to launch a human rights complaint against the city of Saskatoon for placing the words “Merry Christmas” on its buses.

The media coverage surrounding this issue has made me realize that many Canadians are confused about whether the Charter guarantees the separation of church and state. It does not. Further, our constitution lacks a clear equivalent to the most famous of such constitutional protections—the American establishment clause.

The establishment clause is a phrase in the 1st Amendment of the U.S. Bill of Rights that says "Congress shall make no law respecting an establishment of religion". Canada has no equivalent constitutional protection.

Although the linked National Post article above focuses on the up-coming human rights complaint, on the Charles Adler show on the afternoon of December 18, 2012, Mr. Solo implied that Canada has constitutional protection regarding the separation of church and state.

If I had to guess, I would say that Mr. Solo, and other Canadians like him, are confused because they have watched US legal dramas on TV and assume that, like the U.S., Canada has a similar separation of church and state. We do not. Consider this plain and simple fact: the Queen remains the Head of State in Canada even though she is the Supreme Governor of the Church of England.

On the other hand, section 2 of the Charter does guarantee "freedom of religion", and the courts have interpreted this to include a right to be free from religion.

But this right to be free from religion is subtly, yet significantly, different from a separation of church and state. Freedom of religion under the Charter means that Canadians are free to practice their religions in a non-harmful fashion (e.g. the Multani case), while freedom from religion means that Canadians cannot be forced to adopt a religious practice (e.g. the Big M Drug Mart case).

Bylaws Made in Secret, Good Government, and Economic Freedom

Last July 16, Calgary city council voted to enact a bylaw to ban the distribution and sale of shark fins in Calgary.

Ald. Brian Pincott brought the bylaw to council supported by a petition containing thousands of signatures. Ald. John Mar admonished Calgary’s Chinese-Canadians saying they may need to give up some of their traditions, such as shark fin soup. Coverage by some media outlets juxtaposed images of Chinese restaurants and mutilated sharks. As a result, few people outside of Calgary’s Chinese community have questioned the good intentions behind council’s decision. But more of us should.

Council justifies the proposed bylaw on two grounds. First, sharks are “apex predators” that accumulate toxins such as mercury in their bodies. Shark fins therefore contain dangerous levels of mercury. Second, some 70 million sharks are allegedly caught each year, stripped of their fins, and thrown back helpless into the ocean to die a painful death. So shark fins are therefore cruel and unethical.

These two justifications may seem innocuous, initially. Although Alberta’s Municipal Government Act is silent regarding sharks, it does give municipalities the authority to pass laws for human safety, health, and welfare.

So is the proposed bylaw about protecting humans from toxins like mercury? If sharks are contaminated with mercury, why would council ban only the fins and not the entire shark? Why is the practice of finning sharks and not fishing sharks the focus of the bylaw? Also, what about tuna? Tuna is an ocean dwelling apex predator that accumulates mercury, and it’s more regularly consumed by Calgarians than shark fins. If human health is truly council’s concern, the bylaw would be about the regulation or banning of mercury in foods, not just shark fins.

The human health justification appears to be a contrivance designed to divert attention from the fact that council has no authority to enact legislation protecting sharks.

Toronto had a similar ban until November 2012 when a judge ruled the bylaw was outside of Toronto’s authority. Even though Calgary is a different city, in a different province, and functioning under different legislation, the legal principles relied upon by the Ontario judge would similarly strike down Calgary’s proposed bylaw. Like Toronto’s, Calgary’s ban is simply not about protecting human health — it’s about the preservation of a marine animal over which council has no jurisdiction.

Of course, Calgary’s city council could not have known in July about the legal status of municipal shark fin bans before the judge struck down Toronto’s bylaw in November — or could they?

On July 16, hidden behind closed doors, council was given legal advice regarding the proposed bylaw. That advice is currently unavailable because council directed that it remain confidential under the Freedom of Information and Protection of Privacy Act. That seems odd.

Upon exiting their private meeting, council resolved to ask the provincial and federal governments to enact shark fin bans. Why? Perhaps the city’s legal department told council that the proposed ban is outside the city’s authority. If that’s the case, council knew their ban was potentially illegal prior to Toronto’s bylaw being stuck down.

What’s disturbing about this scenario is far more than shark finning. If city council was told that banning shark fins may be outside of their authority, and yet continued efforts to enact the ban while keeping that unfavourable legal advice hidden, what else are they capable of? And even if council was not initially aware that the ban may be outside their authority, they became aware after Toronto’s bylaw was struck down.

This should trouble every Calgarian, not just the Chinese community. Don’t be misled — this ban is about far more than shark fins. Calgarians should consider whether they can trust a council that keeps secrets while seeking to enact legislation it knows may exceed its authority.

The real issues are good government and the freedom to earn an honest living. A Calgary restaurant owner assured me that she purchases shark products not from China but only from Spain — a country that regulates its shark industry to prevent overfishing and cruelty. Throughout the EU, the whole shark is harvested. The media’s gory portrayal of floundering mutilated animals is simply inaccurate in her case. She is serving an ethical and sustainable food product to her customers. It would be unjust if council’s overly broad ban stripped this facet of her livelihood away.

This piece was originally published by the Calgary Herald on February 6, 2013 and Troy Media on February 7, 2013.

Economic Freedom helps Consumers

Ontario Progressive Conservative leader Tim Hudak’s plan to privatize retail liquor sales in Ontario—ending the near total monopolies of the LCBO and The Beer Store—is an ambitious step towards prioritizing consumer and retailer interests. And even if his plan relinquishes only part of the Ontario government’s control over liquor, it will result in greater economic freedom.

On this issue, Ontario could learn a lesson from Alberta. In 1993, Alberta privatized the retail portion of liquor distribution within the province. By all accounts, it has been successful. Since then, liquor sales have increased, resulting in higher government revenues while consumers enjoy greater product selection and lower prices. This has been the direct result of a more competitive and freer market—i.e. greater economic freedom. And there is no evidence that crime or alcohol related offences have increased as a result. 

Saskatchewan and Manitoba are both currently experimenting with the same idea. And who can blame them? What province doesn’t want to increase its revenues and cut costs all without causing any of the social ills that modern-day prohibitionists expect?

But, as Gerry Nichols points out in his Toronto Star article on Dec 4, it will be difficult for Hudak to relinquish government control over liquor sales because “well-funded special interest groups have a keen desire to keep the monopoly alive.” 


VESTED INTERESTS: Unions

Nichols’s point is borne out in Saskatchewan. On its website, the Saskatchewan Government Employees’ Union issued a press release decrying the opening of two private liquor stores in the province. SGEU president, Bob Bymoen says, "Alcohol is not just another consumer product. It is a drug that can and does cause serious problems for families and communities. Because of that, Saskatchewan citizens should have a say in how alcohol is sold in this province."

Chanting the same mantra, Manitoba’s government employees’ union opposes liquor sale privatization because it is dangerous. An MGEU press release says, "Alcohol is an intoxicant and it can be extremely harmful if misused or abused. The fact is that regulating alcohol sales is the responsible choice for Manitoba families and communities.”

As expected, these union outcries are shrill, at odds with the interests of the consuming public and small retailers, unsubstantiated by the empirical evidence collected over 20 years in Alberta, and contrary to economic freedom. But each does substantiate Nichols’s claim—the Ontario Public Service Employees’ Union (OPSEU) will likely oppose Hudak’s plan.

VESTED INTERESTS: Labatts, Molson, and Sleeman

But it’s not only the OPSEU that will resist a freer market and greater competition. Hudak will also have to stand up to Labatts, Molson, and Sleeman.

The LCBO is government owned and operated, but The Beer Store is a private organization owned by three major breweries: Labatt Brewing Company Ltd., Molson Coors Brewing Company Ltd., and Sleeman Brewery Ltd. Even though The Beer Store is meant to be a non-profit, the owner breweries are able to restrict competition to the detriment of both the non-owner breweries and the consuming public.

There are two obvious means by which The Beer Store can restrict competition: through fees and product placement.

Non-owner breweries are charged two fees to have their products sold in The Beer Store. The first is a listing fee of $2,650.14, plus $212.02 per retail location where the product will be available. And the second is a handling fee between $3.65 and $4.15 for every case of 24 beers. As ludicrous as it seems, under the current system, non-owner breweries must pay substantial fees to their competitors if they want their product to be available at Ontario’s biggest retail outlet for beer.

The Beer Store can also restrict competition by giving product placement priority to the owner-breweries’ products. And because of the Ontario government’s control over the liquor market, these other producers do not have the option to open their own retail outlets to compete with The Beer Store and its owner breweries.

This government mandated arrangement results in higher prices and a more limited selection for Ontarians while it inhibits the development of a retail industry that would be more responsive to market demands.

TAKE 'EM DOWN!

Hudak will need to take on both the OPSEU and the private owners of The Beer Store if he wants to give Ontarians the benefits of an Alberta-styled liquor retail industry. In the end, consumers, small producers, and small retailers will thank him because it will be a boon for economic freedom.

This piece was published by Troy Media on December 9, 2012

Put Students First by Permitting Competition in Education

Imagine a world where General Motors has to ask Ford’s permission to bring a new car to market. In such a scenario, GM spends its own resources in research and development, gauging consumer demand, and implementing new procedures for efficient manufacturing. GM’s competitor, Ford, does nothing.

Now imagine that Ford has the legal authority to hijack any of GM’s ideas and claim them for itself. Everyone knows there is something unfair about this. If this arrangement does not drive GM out of business, it will negatively impact upon consumer choice. There are few surer ways to stifle innovation and market-responsiveness.

But this is precisely what Alberta’s new Education Act does. The act continues to require that an application for a new charter school must be first presented to the local school board. The school board has two options if it thinks the charter proposal has merit: it can reject it—only to see students exit its own schools—or it can mimic (i.e. hijack) the application by starting an “alternative program”. Either way, the school board gets first dibs. This is a clear conflict of interests.

This problem is not hypothetical—it has happened at least once already. The All Boys Program in Calgary is based upon an application originally made for a charter school. The Calgary Board of Education (CBE) hijacked the proposal and claimed for itself the effort invested in the application. Adding insult to injury, the CBE implemented the proposal minus some key innovations—such as merit-based pay for teachers. This half-hearted implementation has reportedly undermined some of the program’s effectiveness.

University of British Columbia Dean of Education, Lynn Bosetti, says “local school boards have no incentive to support charter schools”, and that school boards—like the CBE—perceive charter schools as “undesirable competition”. Could this be true? Undesirable competition? Shouldn’t Alberta’s public school system prioritize student needs? Fostering market-based fair competition between charter and government schools would be an excellent vehicle to prioritize student needs. Instead, the act undermines competition to the detriment of student interests.

This anti-competitive arrangement is contrary to entire impetus behind the charter school movement.

In 1994, the Government of Alberta passed legislation creating charter schools by permitting non-profit organizations to operate public schools to increase school choice and parental involvement while adopting innovative instructional methods to improve educational outcomes. Charter schools are supposed to be the testing grounds for the delivery of public education. The problem is that the charter schools have become too successful.

Today, charters continue to operate tuition-free publicly funded schools that, along with private schools, consistently out-rank the majority of government public schools on the Fraser Institute’s annual School Report Card. True to their mandate, the charters have innovated. There are charters tailored to meet specific student needs, including one for English is a second language students, one for at-risk youth, and others that emphasize fine arts, music, and science. The students in these programs flourish.

If enrolment is an indication of meeting market demand, then charter schools are wildly successful. One Calgary charter has its enrolment capped by the government at just under 3,000 students and is annually filled to capacity while approximately 7,000 students wait to get in. For your child to attend this charter, you must apply nearly as soon as he or she is born.

But the strength and value of charter schools is not solely how they have innovated and produced superior results compared to government schools. Another significant success is in empowering parents. When parents have a choice of where to send their child to school, the decision becomes a matter of careful consideration. This creates a new relationship between the parent and the school freely chosen—one that’s markedly different than the complacency and compromise that characterizes having no choice but the local government school. As Sheldon Richman points out in his 1994 book “Separating School and State”, the single most important factor in a child’s educational success is an active, supportive family. By offering parents a choice of school outside of the government’s offerings, charter schools help to accomplish that.

Competition is always better than monopoly for consumers, and the delivery of educational services is no different than any other industry. The legislature has done Alberta’s students and parents a great disservice in the Education Act. By making charter schools beholden to school boards with vested interests, the government is sending a clear message: student needs and educational outcomes are not the government’s primary objectives.

This piece was originally published by Troy Media on December 3, 2012

The (Potentially) Unlimited Price of Outcomes

On Nov. 9, 2012, the Supreme Court of Canada (SCC) unanimously rejected equality of opportunity in favour of equality of outcome by finding that Jeffrey Moore was discriminated against when his North Vancouver school district failed to accommodate his learning disability.


In 1994, the cash-strapped school district de-funded an expensive and highly specialized program for dyslexic children in an effort to save money. Beginning two years later, the parents of nine-year-old Jeffrey chose to pay approximately $100,000 over nine years for a private education that included the same program previously available in the public system. Jeffrey's father then complained to the B.C. Human Rights Tribunal that his son's right to be free from discrimination entitles his family to be reimbursed for the cost of the private school.Justice Abella wrote the SCC's decision. In her reasons, she found that the program was the "means" by which Jeffrey could gain "access to the general education services available to all British Columbia's students." She also concluded that without public funding for the program, Jeffrey was incapable of achieving the same level of academic competency as other students in B.C.

This decision has the potential to burden B.C. taxpayers with an unlimited financial liability to fund special education programs. The SCC decided that B.C. students are guaranteed equality of outcome because the government has, as Justice Abella says, a "duty to ensure that no student is excluded from the benefit of the education system," and that "adequate special education, therefore, is not a dispensable luxury."

If you believe in equality of opportunity, you will agree that the B.C, government did not discriminate against Jeffrey. At all times, he had access to exactly the same educational services available to every other public school student in his region of B.C. Apparently, this does not matter since the SCC decided that the B.C. government has a duty to ensure that Jeffrey - and students like him - achieve the same academic outcomes as other students in B.C. But it's impossible for the B.C. government to ensure the equal educational outcomes of all B.C. students. It is only within the government's power to provide each student with an equal opportunity to achieve his or her academic potential.

Going forward, it's not clear from the decision whether the cost of delivering special education programs can be considered by school districts experiencing financial difficulties - even when those financial difficulties result in yearly deficits and budget cuts. As a result, this SCC decision has the potential to burden B.C. taxpayers with a nearly unlimited financial liability aimed at producing equal academic outcomes because this "duty to ensure no student is excluded" must ultimately be funded by their taxes.

Let's take a step back. The B.C. government never intended to bind itself through the Human Rights Code to provide highly specialized educational programs for disabled children without regard to cost. In particular, the provision that Jeffrey relied upon was not enacted by the legislature to be used in this fashion. Section 8 of the Human Rights Code is meant to prohibit restaurant-owners, shop-owners, and the like, from discriminating in the delivery of their services. For example, no taxi driver in B.C. may place a sign in his cab saying "no Hispanics."

This same provision is being constantly abused. In 2011, it was used by the B.C. Human Rights Tribunal to silence the free expression of comedian Guy Earle. In 2012, the tribunal used it to restrict the free expression of religious belief by bed-and-breakfast owners Les and Susan Molnar. In both of these instances, this provision was used to violate a fundamental freedom guaranteed by the Charter. The Jeffrey Moore decision represents a new stage in the continuing evolution of section 8 - the SCC has created the right to receive a highly specialized public education without regard to cost.

Jeffrey, now in his 20s, has experienced a lot of success - he is a journeyman plumber. In an April 21, 2009, interview with Katie Mercer in The Province, Jeffrey said that his chosen career "pays quite well and you can really get into it, and right off the bat. You're not paying off a student loan," and that, "it's a pretty quick way to start making money for someone who wants to have a useful skill and a good income." Perhaps it's Jeffrey, not the hard-working B.C. taxpayers, who should pay his father back.

Originally published in the Vancouver Sun, November 17, 2012

Confusing Compulsion for Freedom

The Toronto Sun reported yesterday that one of the reasons the Quebec student protests were so well-organized last spring is because the protesters were receiving financial help from unions across the country.

Canadian unions are well-known to give financial support to political causes—almost exclusively to those on the left side of the political spectrum. Many provinces in Canada, including Ontario, Manitoba, Saskatchewan, and British Columbia, have enacted legislation that forces even non-union members to pay union dues. And regardless of the wishes of the individuals forced to financially support them, unions are permitted to spend the money they collect to advance political causes that those same unwilling supporters oppose.

This issue was before the Supreme Court of Canada in the 1991 Lavigne v. Ontario Public Service Employees Union case. This case examined whether the Charter right to freedom of association prohibits the government from compelling individuals into associations against their will.

Lavigne was a teacher at a community college. His employment contract incorporated the so-called Rand Formula, which forced him to pay union fees regardless of whether he was a union member. The union then used Lavigne’s money to support the NDP and other political causes that he deeply opposed.

Once he became aware of this, Lavigne applied to get his money back so that it could not be used to further causes he considered unjust. His application was unsuccessful so he appealed all the way to the Supreme Court of Canada. The court’s decision was truly baffling.

Of the seven judges who heard the appeal, only three correctly held that freedom of association includes both a right to associate and a right to not associate. These three judges recognized that it’s just a matter of plain logic. If you are free to associate, you must also be free not to associate. That’s precisely what “free” means.

The remaining judges held that compulsory associations do not violate the Charter and that freedom of association “should not be expanded to protect the right not to associate.” Expanded? This implies that freedom from association is something other than a corollary of freedom of association. This view is incorrect. And it’s illogical.

In the end, the court had to bend the rules of good-reasoning to protect the Rand Formula. The word “freedom” necessarily implies choice. At a bare minimum, it must mean that individuals are free to choose to associate and free to choose not to associate. Yet the Lavigne decision protects the government’s constitutional authority to force individuals into involuntary associations. This is to confuse freedom with compulsion.

The real injustice in Quebec is not that tuition rates have been raised by a fraction. It’s that unions are supporting the protesting students using money involuntarily collected from unwilling Canadians.

Canada Should Repeal Its Blasphemy Law

It's time for Canada to repeal its prohibition on blasphemous libel.

Section 296 of the Criminal Code of Canada makes it an indictable offence to publish blasphemous libel.  Upon conviction, an accused is liable for up to two years of imprisonment.  Section 296 permits an accused the defence of “good faith” provided that “decent language” is used. 

296. (1) Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) It is a question of fact whether or not any matter that is published is a blasphemous libel.

(3) No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.

It’s probably a safe bet that most Canadians do not know what the term “blasphemy” means, let alone that blasphemous libel is a criminal offence.  According to the Merriam-Webster online dictionary, to blaspheme means to insult or show contempt or a lack of reverence for God or other things sacred.

Originally, blasphemous libel was specifically tied to publishing materials that brought the Christian religion into disrepute—presumably excluding other religions.  The courts held the prohibition to include any profane words vilifying God, Jesus Christ, the Holy Ghost, the Bible, or Christianity if it was done with the intent to shock or insult believers, or mislead the ignorant and unwary.

Arguably, the most recent decision on section 296 generalized the prohibition so that it may now be possible to blaspheme other religions as well.  But this has not been tested in court because the prohibition has fallen into disuse.

The first time I read this prohibition in the Criminal Code during law school, I found it surprising that Canada has any sort of law prohibiting blasphemy.  First, blasphemy is everywhere.  It is not difficult to find all sorts of published material that break this law—movies, music, books, magazines, video games, visual art, etc.  And second, any sort of prohibition on blasphemy strikes me as an unacceptable restriction on freedom of expression and one more potential foothold for tyranny.  Notice that the way that the prohibition is worded inevitably makes it function as a proxy for the personal and political views of the judiciary.  Perhaps "foothold for tyranny" is an understatement?

Fortunately, there have not been any blasphemous libel prosecutions in Canada since the 1930’s.  It is likely that section 296 is effectively dead even though it remains in the Criminal Code.

But being effectively dead is not truly dead.  The UK has had a similar prohibition with much the same story as Canada’s—it languished unused for a significant period of time.  Yet in the 1979 case of Whitehouse v. Lemon, Mary Whitehouse resurrected the UK’s blasphemous libel prohibition in a successful private prosecution.  The accused was convicted but did not have to serve the prison term.  By the way, the UK repealed its blasphemy law in 2008.

Aside from the important point that effectively dead laws are not guaranteed dead, there are other reasons to repeal section 296. 

First, the continued existence of a prohibition on blasphemy places Canada in an awkward and hypocritical position when it criticizes other countries of religious intolerance.  Remember the famous admonition to take the mote out of your own eye first?

And second, there is no certainty that the Charter’s guarantee of freedom of expression will offer any protection to an individual accused of blasphemous libel.  That’s an unanswered question that has never been tested in court.  Sadly, there are cases that refer to section 296 as a potentially justifiable violation of freedom of expression.  Also, there is no shortage of cases where the courts have deferred to the government and upheld restrictions on speech.  Trials are inherently uncertain and court decisions can often yield surprising results.

It’s probably best to repeal section 296 rather than assume that it will never be used in the future.