Author: Alan

Day Fifty-Six: Election Day

I think there was a mistake made by someone when the election date was picked. We were given too much time to think and too much time to talk. And what did we talk about over Christmas and New Years? The season of giving to the good and to the needy passed in semi-silence politically speaking but the polls show it was then that the fates of the candidates changed. We all have our thoughts but I think it was less about the news and more about the lull. Perhaps to create revisionist comforting unhistory in the mind. Perhaps to be angry…or likely just angrier than usual. Perhaps to be open to change.

Today we vote. Only today. I like to vote and I would vote more often if given half a chance. My vote will not elect a Member of Parliament. It never has. It will express my view, however, and that is more important. I feel badly for those who vote to pick a winner but not whose view aligns with those who will take their seats.

Update: Interesting to note that SES polling results for Sunday, the final day of SES polling in their last 3 day rolling poll [Warning PDF!] announced last night at 7:45 pm before the deadline (therefore not infringing s.328 to repeat by me here), shows a weird shift away from the Tories:

All voters

Tories – 33.2%
Liberals – 30.4%
NDP – 22.2%
Bloc – 9.4%
Green – 4.8%

Likely voters

Tories – 32.7%
Liberals – 31.0%
NDP – 23.3%
Bloc – 9.0%
Green – 4.0%

If there turns out to be a weekend collapse of Tory support, has SES seen it? If there is not, who was SES calling? All very slim information to be sure but as a NDP voter one has to grasp at straws.

Upperdate: I just noticed the best report from a all-candidates meeting over at Chris Taylor’s blog. Check out the scoring methodology.

Day Fifty-Five: Election Blogging On Monday

Interesting to note discussion of the wording of section 329 of the Canada Elections Act:

Prohibition — premature transmission of results

329. No person shall transmit the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district.

Pretty clear that blogging is transmission but is reporting popular vote at a national level? That is not the vote in an electoral district but it is a aggregation of votes and votes are only cast in electoral districts. This handy dandy timeline explains the back story and here is the May 2005 ruling from the BC Court of Appeal on the constitutionality of the transmission ban in s. 329. Here is the nub:

[59] In my opinion, when the s. 329 publication ban is seen as having the same purpose or objective as the staggered voting hours, that is, to eliminate the information imbalance that can result from disclosure of results before all of the polls have closed, the respondent’s argument concerning the lack of evidence to support the ban falls away.

[60] One of the contextual factors referred to in Harper was the apprehension of harm in relation to the electoral process. While the Lortie Commission Report stated that the availability of election results in Newfoundland and the Maritimes before the close of the polls in western Canada was not of “great concern”, assuming staggered voting hours were in place, it was clearly open to Parliament to decide what measures to adopt in meeting public concerns about the information imbalance. Parliament chose to implement the solution of staggered voting hours but also chose to maintain the publication ban on election results. Public perception of electoral fairness is obviously critical in a democracy. Given the extent of the public concern the Commission had identified about voter information imbalance, Parliament’s choice to leave the ban in place appears to me to be unremarkable.

[61] In determining that the Attorney General had failed to demonstrate by the evidence adduced that the objective of the s. 329 ban was pressing and substantial, it appears to me that the appeal judge overlooked the findings of the Lortie Commission about the very large percentage of Canadians who had expressed concern about information imbalance coupled with perceptions of electoral unfairness. In my opinion, this was not a case in which scientific proof of harm was required to justify the limitation on freedom of expression. What was required, and what the trial judge had before him, was evidence from which it could be inferred that there was a reasoned apprehension of harm to the legitimacy of the electoral regime if the publication ban, aimed at preventing information imbalance, was not continued.

[62] I note as well that McLachlin C.J.C., for herself and Major J, dissenting on the third party spending issue in Harper, agreed that the promotion of electoral fairness was a pressing and substantial objective. Her observations respecting the characterization of electoral fairness as a pressing and substantial concern are instructive in the present context (at para. 26):

Common sense dictates that promoting electoral fairness is a pressing and substantial objective in our liberal democracy, even in the absence of evidence that past elections have been unfair; see Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876, at para. 38. A theoretical objective asserted as pressing and substantial is sufficient for purposes of the s. 1 justification analysis; see Thomson Newspapers, supra, at para. 38; Harvey, supra, at para. 38; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 191; McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 281; Edmonton Journal [Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326], at pp. 1343-45.

[63] Two of the other important contextual factors that need to be considered in this case are the nature of the expression the s. 329 ban limits and the period of time during which the ban operates. I agree with the appeal judge’s description of the type of expression being limited by the ban as falling “at the margins of political speech”. The ban in issue here is directed at information about election results and is intended to operate for only a brief period. The nature of the expression to which the ban applies and the brief time period in which the ban operates does not limit participation in political debate.

[64] It is convenient to note here that the respondent submitted that the ban in s. 329 is now obsolete because the advent of such things as satellite and cable television and the Internet makes enforcement difficult, if not impossible. He referred to some passages in the Lortie Commission Report to support his argument. In my view, difficulty in enforcement of the publication ban is irrelevant to the constitutional question. Many criminal and quasi-criminal offences are difficult to enforce but that does not mean that Parliament ought not to make them offences. The fact that the ban may be violated does not logically lead to the conclusion that the information imbalance between voters the ban seeks to remedy is not pressing and substantial. I would not accede to the argument that the relative ease by which the ban may be violated demands its constitutional demise.

Mind your step tomorrow.

Day Fifty-Two: Activitist Judges

There is nothing more embarassing about human existence that the principle “if you say enough, it it will be true”. No greater example of this exists than the phrase “activist judges” which has been successfully shoved into the parlance by axe-grinders. Sadly, though not unexpectedly, the current poll leader in the Federal election has trotted out this sham:

Stephen Harper says some judges appointed by the federal Liberals are activists working to promote their own social agendas, statements that drew heavily from his tenure in the old Reform and Canadian Alliance parties. The assertions by the Conservative Leader, whose party leads the public opinion polls, mark one of the few times during a tightly scripted election campaign that he has strayed far from the centre of the political highway.

A thinking person’s first response to this ought to be somewhat similar to hearing that our Foreign-Minister-in-Waiting, Stocky, will have difficulty dealing with visits to Kenya giving their obviously heretical and slanderous position on the meaning of the Rift Valley’s contents.

How is it that claims of a secret agenda of the right is a farce but the secret agenda of judges is lapped up by the willing and the weak? How is it that one part of the constitutional structure can so misrepresent another part of it and not be labelled as disloyal to the core by traditionalists (not to mention the sentient) as finger-pointery folk offer up freely for anyone who suggests, say, that Arctic paratrooper capability as a defence against sub-ice-cap submarines might not be the best use of military resources? It is clear from all objective considerations that, by body count at least but more so the right to hit the brakes, the responsible authors of constitutional change brought on by the Charter of Rights and Freedoms were the mainly conservative premiers who signed up for it and did so rightly as it expresses the complex nature of Canadian democracy and details it more and more as it is unfolds through each ruling. The courts, in doing so, play the role demanded of it with honour and intelligence (but without political pressure though as humans) through the combination of the facts of its historical constitutional existence and the task asked of it by the legislators.

“Activist judge” is just another way of saying “person who disagrees with me”. Shammery and wilful blindness from the same folk who would restructure the Senate to actually give it power and distribute that power unequally to the low population zones of the nation. Another step by a political minority seeking to remake the nation and impose it on the rest of us. You have to at least admire their gall.

Bored Election Blogging

Would it surprise you to find out that if I really thought about it, all this daily election blogging I am doing is getting to be dull. I have done a daily post over at the CBC roundtable and maybe half as many again here. That is something like 75 posts on one topic. It is getting dull out there.

Why is it dull? Because I have become aware of what is really happening. It is sort of like watching a movie in a cinema. People all reacting in a group emotional event together, having a moment of shared swing syndrome. Sooner or later you realize this at the movies and it suddenly feels like a sort of techno-evangelical church praising Lord Pictures-on-the-wall.

This is not like me. Usually my gut reaction to “where two or three are gathered” is an urge to be elsewhere. Something happens to people when there are few ideas and lots of expectations and an election is the worst example for a couple of reasons. First, it is not about the details or what will really happening. As soon as the platforms were all finally released last week, they dropped off the radar. Second, it is too much like a bunch of branding consultants talking. If there is one thing worse than listening to a branding consultant talk about what your brand should be, it is a group of branding consultants talk about branding theory. And as branding is making something without certain characteristics appear to be something with those characteristics…well, you get the point.

Will I learn to blog again after all this is done? I worry about that more and more. I wonder what will fill the hours when I can’t jerk my knee to the last poll or the last gaffe.

Ontario: Rogers’ Red Coat Pale Ale, Glenora, Prince Edward Co.

roger1aNew to the LCBO in a 650 ml bomb.

The graphics are very nice and honour a Loyalist unit from the era of the American Revolution that operated in northern New York and the Canadian St. Lawrence river valley.

Sadly, I cannot recommend this beer. It is sharp and cidery. Again, I can only hope this is off.

Baby Bok Choi

When the world that is Canada comes out of its fixation with the election and has yet to slump back towards the TV screen for the Winter Olympics, there may be a moment to consider something new including new things to eat. In winter there are chinese greens to consider.

Bok Choi is that thing that looks like celery at the bottom and romaine lettuce at the top. Last night we had it simply done. Quarter them length-wise. Heat the pan moderately hot. Olive oil and a drop of sesame oil and bash in the bok, moving and flipping until the tops are wilted and the thicker base warmed through. Light in taste and texture, they pile well upon a steak.

This has been a public service announcement.

Day Forty-Five: The Bill Of Rights

A couple of conservative bloggers got me thinking. This in tiself has me a bit worried but we are all working towards that grand CPC/NDP coalition…right? Right?

  • The Liberal Party has voiced opposition to the entrenchment of property rights in The Charter of Rights and Freedoms, Canada’s primary constitutional document defining the limits of how far any part of the state can intrude on the rights of individuals – relying, oddly, in part of a heretofore unknown creature, the prominent blogger.
  • The Liberal party has run the Federal government for the last 13 or so years and for the best part of the preceding decades of Canadian existence and should have a sense of the powers which were entrusted to it.
  • on 10 August 1960 The Bill of Rights received Royal Assent. It contains the following provision:

    1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

    (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

  • The next section of The Bill of Rights has a very interesting provision:

    2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared…

    This section means that the laws of the Federal Goverment need to comply with The Bill of Rights. In this sense, like a piece of human rights legislation or an Interpretation Act, The Bill or Rights is quasi-constitutional. Not quite as over-riding as the Constitution but one that demands compliance within its sphere of influence. We learn that in section 5(2) which defines “law of Canada” as follows:

    The expression “law of Canada” in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada.

    A somewhat broad definition limited only as follows in 5(3):

    The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the Parliament of Canada.

  • Although rather ineffective as an instrument of societal change and even though it was overshadowed The Charter of Rights and Freedoms came in twenty-one years later, The Bill of Rights continues to apply in law for certain purposes. While the Supreme Court of Canada held in the Anderson case in 2003 that The Bill of Rights could not provide protection for certain injured and ill veterans and their families against legislated expropriation without hearing, it did confirm section 1(a) continues to exist:

    …The Bill of Rights guarantees notice and some opportunity to contest a governmental deprivation of property rights only in the context of an adjudication of that person’s rights and obligations before a court or tribunal.

    So not everything but something. The court stated that where no adjudicative procedure is necessary for the non-discretionary application of a law, the provision provides no benefit and the court illustrates this with the example that a taxpayer could not claim procedural protections against a change in income tax rates that adversely affected him.

What I think this all means is that where a Federal law sets out a process for deprivation of properly it must be due process and provide certain procedural rights such as fairness. Where, however, the act in question is not delegated but imposed directy by the Parliament itself there is no benefit of The Bill of Rights because of that pesky word “enacted” highlighted in bold above. The protections of the Charter get into the “enactment” of a statute and that is the difference. Hence the practical uselessness of The Bill of Rights as a tool against the legislated fiat such as in Anderson.

So when the Liberals say that placing property rights in the Constitution “would dismantle Canada’s social safety net” it might be fair to say that it would do so if there was some anticipatible consequence in a Court ruling supporting a previously unentrenched property right lurking there in The Bill of Rights. All The Bill of Rights can do is ensure the Federal Government must uphold property rights in its delegated processes. In other cases, the Federal Government and the provinces would need to agree to put property rights in the Charter at risk of unacceptable outcomes. But in that case, there is alway section 33 of the Charter and the notwithstanding clause. Right?