Shocking developments

Laura Pratt
The Next City Laura Pratt
September 21, 1998

 

THROUGH THE USUAL GAMBLING NOISE, CAROLYN MCCLOUD HEARD THE SOUNDS of a commotion. An old hand at betting establishments, McCloud knew that fights frequently broke out, so she barely looked up from her slot machine. But when her friend stood on a stool for a better view and said, “Carol, that’s no fight. There’s someone down,” McCloud guessed that her husband was in trouble. She jumped out of her seat and ran, weaving around gaming tables and pushing through a sea of gawkers. Billie McCloud, who had had an artificial aortic valve installed after the last of his three triple bypasses, lay on the floor staring straight up, his eyes fixed and his skin grey blue. She saw a man breathe into Mr. McCloud’s mouth, saw his chest rise and fall. Someone said, “Get her out of here, he’s gone,” and then Mrs. McCloud fainted. When she came to, both she and her husband were at the Hôtel-Dieu Grace Hospital in Windsor, Ontario. Mr. McCloud was hooked to a respirator and still a little blue, but he was alive. The employees at Casino Windsor had brought this 64-year-old retired autoworker, visiting from “just across the river” in Michigan, back from death three times with their new semi-automatic cardiac defibrillator. If he had been tugging at the slot machines of almost any other North American casino on that day in April 1996, Mr. McCloud — who doesn’t recall whether he was winning that night — would be dead right now. “There’s all kinds of luck in the world,” Mrs. McCloud says. “Not just money.”

The definitive textbook, Fighting Heart Disease and Stroke: Advanced Cardiac Life Support, calls early defibrillation a cardiac arrest victim’s most important link in the chain of survival and recommends that automatic external defibrillators be widely available for appropriately trained people. In other words, nurses, paramedics, and fire fighters — as well as anyone else with defibrillator training — should have access to those electric shock paddles the doctors on ER get such a charge out of. It’s a risky idea. But, says Ross McLeod, a Toronto sociologist turned businessman, ignoring this idea is riskier still to the Billie McCloud’s across the country.

From an east-end office lined with books such as Martin’s Annual Criminal Code and The Logic of Social Systems, along with a party-size box of Milk-Bones for his huge rottweiler, he discusses his plan to transform the staff of his security firm, Intelligarde International, into “Medigardes.” “We take our mandate quite broadly,” he says. “We’re in the protection business, and this is part of protection.” McLeod believes the apartment complexes, office towers, and shopping centres his company protects will welcome the value added of having on-site defibrillators and trained personnel for an extra two dollars an hour. “The winner will be the public,” he says. “If the guard in your lobby can either be trained in cardiac defibrillation or not, which would you choose?”

Once people accept the prospect of a security guard delivering a shock to a fallen executive on an office building’s 22nd floor, McLeod would like to extend defibrillation training to everyone — flight attendants, long-distance bus drivers, transit employees, lifeguards, and teachers. “Eventually, cardiac defibrillators will be as common as fire extinguishers, and boy scouts will be trained in how to use them.”

Last spring, McLeod consulted Dr. Kenneth Melvin, staff cardiologist at the Sunnybrook & Women’s College Health Sciences Centre, about the legalities and technicalities of his plan. Dr. Melvin believes that once operators are well trained and appropriately certified, McLeod may have “something very big to offer people.”

MEDICAL PROFESSIONALS HAIL THE CARDIAC DEFIBRILLATOR AS ONE OF THE 20th century’s most important lifesaving inventions: The powerful shock it delivers to the heart muscle is the only consistent way to re-establish a pulse in victims of cardiac ventricular fibrillation, a severe heart attack that leads to cardiac arrest. Most Canadian ambulances carry automatic external defibrillators (AEDs), but relatively few fire trucks do. Yet many are realizing the benefits of training fire fighters, who are often sent in dire medical emergencies. While ambulances take 6 minutes in Toronto and 8.5 minutes in Vancouver to respond to a 911 call, those cities’ fire fighters take only about 3.5 minutes. Extenuating factors such as vehicle trouble and lost drivers can lengthen the wait: Because of heavy traffic, an ambulance took 20 minutes to reach René Lévesque, who died in 1987 from a heart attack at home.

Although heart disease’s morbidity and mortality rates have declined in the past 20 years, it remains the leading cause of death, giving heart attack victims a grim survival rate. A heart that goes into ventricular fibrillation can lead to brain damage after 4 minutes. When the heart goes into ventricular fibrillation, there is only a 10-minute window in which it is treatable. And for each passing minute, the chance of survival declines by up to 10 per cent.

When Hamilton, Ontario, outfitted its fire department with cardiac defibrillators in 1989, that city’s cardiac arrest survival rate jumped by 50 per cent — from 12 to 19 per cent. Dr. Rick Verbeek, the medical director for the Toronto ambulance and fire services’ semi-automatic defibrillation program, says, “There’s no doubt in my mind that, if I had a heart attack in the street, and I could be assured that I was going to get safe defibrillation, I would want it as soon as possible. With public access defibrillation, you would definitely have people walking the streets tomorrow who wouldn’t have been.”

Because cardiac defibrillation does carry some risk, the medical colleges’ protocol requires that operators be approved by a physician, serving as a particular geographic territory’s medical director. Canada’s colleges of physicians and surgeons tacitly support doctors training nurses, fire fighters, and paramedics to use cardiac defibrillation, without expressly naming these personnel categories, so that conceivably a physician could legitimately certify civilians as well. A spokesperson from the College of Physicians and Surgeons of Ontario said that civilian cardiac defibrillation is “not a big deal” to them, but refused to offer an official opinion.

As for finding doctors willing to put their licences on the line to train a gaggle of Medigardes, most physicians don’t anticipate a problem. “A lot of us in the medical community right now would embrace this,” says Dr. Michael Murray, president of the Canadian Association of Emergency Physicians and a doctor at the Royal Victoria Hospital in Barrie, Ontario. And with no limit to the number of operators a doctor can approve, a large security company could theoretically operate under the auspices of just one physician. Besides, it could mean a few more dollars to spend at the golf shop: “Many physicians augment their income by doing private things such as insurance and legal work,” points out Dr. Melvin. “This could become one of those avenues.”

JUST OUTSIDE AN UNSIGHTLY, SCORCHED BUILDING — the Etobicoke Training and Development Centre — seven Toronto fire fighters are training to become cardiac defibrillation instructors. With “Vanessa” tattooed on one of his massive forearms and “Annette” on the other, one fire fighter kneels beside a rubber dummy and applies adhesive defibrillation pads to its chest. The Heartstart machine’s disembodied voice instructs him to “Check pulse,” to “Stand clear,” and, occasionally, bursts into an alarmed imperative to “Check patient! Check patient!”

Although a buzz has surrounded civilian cardiac defibrillation for several years, defibrillators’ complicated technology made its realization impossible until recently. In the early days, defibrillators were too cumbersome for public use and had a readout that only a cardiologist could interpret. According to Dr. Graham Nichol, a University of Ottawa general internist and clinical epidemiologist who’s studied public access defibrillation for four years, “people have always thought it was too complicated. But they’re increasingly recognizing that this is actually a simple task.” Indeed, certification on a cardiac defibrillator requires only a three-hour course. “In my opinion,” says Dr. Verbeek, “someone from the public could learn to use this as easily as they could learn CPR.”

But even the movement’s loudest proponents do offer a word of caution. “You could,” says Dr. Melvin, “make a bad situation infinitely worse” by applying defibrillators to people who have simply fainted or blacked out because of an insulin reaction or a drug overdose. “It’s not so much knowing how to use the machine,” says Dr. Verbeek. “The much more difficult thing is knowing when to use it.” Bystanders can also unwittingly touch the patient receiving a shock, get thrown across the room and, occasionally, lose their own heart rhythms in the process. Although safeguards should ensure that the machines will fire only on patients in shockable rhythms, “nothing,” intones Dr. Nichol, “is perfect.”

A FEW EARLY MODELS OF CIVILIAN CARDIAC DEFIBRILLATION ARE ALREADY operating across the continent, including Casino Windsor’s setup, which Dr. David Paterson started in May 1996. Calgary’s City Hall has a new defibrillator and a handful of people trained to use it, and the Indianapolis Colts carry a defibrillator wherever they go. In March 1996, Skyservice, a licensed Canadian international air carrier, became the first North American airline to adopt an on-board defibrillation service. Qantas, Virgin Atlantic, and Air Zimbabwe have followed suit, and, last summer, American Airlines joined them by adding defibrillators to 40 per cent of its fleet — 262 planes — and training 2,300 crew members in their use.

Since one AED unit costs about $4,000, and training fees add to the bill, cost has slowed their adoption. “If the health ministries would have to pay to put one in every phone booth — because there’s talk of them being that common — that could be quite a burden,” says Dr. Ian Stiell, an associate professor at the University of Ottawa’s emergency medicine division. McLeod plans to pass on the devices’ cost, in small doses, to property managers. Besides, points out this 52-year-old Montreal native, “people who lie on their office floor waiting for a paramedic to defibrillate them suffer major organ damage and, if they survive, soak up a tremendous amount of resources in intensive care and rehabilitation. The government must ultimately be interested in a program that would reduce the morbidity, particularly if that program is going to be funded by the private sector.” He also predicts that defibrillator prices could plummet to $500 as demand increases.

FIVE YEARS AGO, MCLEOD, A FORMER ACADEMIC WHO MIGHT seem out of place in the blue-collar world of security, told his Medigardes idea to a few buddies in the security business, talked to a couple of medical professionals, and came away convinced it could be done. About two years later, he put a paramedic from Metro Toronto Ambulance on his payroll and worked with him, 25 hours a week for a full year, developing a training course. Next, McLeod gathered information about the equipment and contacted Metro Toronto Ambulance, who agreed to alert Intelligarde International security staff of medical emergencies in the buildings they guard, an arrangement that could slash response times. Then, he applied to Ontario’s Ministry of Health for a small grant to run a pilot project. “The ministry said, basically, ‘Go away,'” McLeod says. And his insurance company added insult to injury by declining to insure his venture. Since then, he’s had a breakthrough: Hewlett Packard, the manufacturer of McLeod’s defibrillators, has agreed to indemnify all its users. Although McLeod continues to lobby his local insurers, he can now proceed without their blessing.

In the meantime, McLeod trained eight officers. “It would just be nonsensical not to do it. Think if your dad was lying out there on the sidewalk and a security guard could save him, but, just because he couldn’t get insurance, he wouldn’t do it. I feel the weight of history on my side. What we’re advocating is new here but not elsewhere. We’re just bringing news of success in distant kingdoms home.”

Last September, another man, a 70-year-old Californian visiting relatives in the area, went into cardiac fibrillation in front of a slot machine at Casino Windsor. The nurses and security guards arrived at the scene in a heartbeat. When the fully revived victim reached the hospital, doctors told him that he wouldn’t have survived without the prompt defibrillation. “I can imagine they’re a lot of money and that it’s a scary idea to equip regular people with these things,” says Carolyn McCloud. “But if they save even one life, they’re worth it.”

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Planners from hell Britain’s rock ‘n’ dole

The Next City
September 21, 1998

 

Pop stars in Britain carry a lot of clout. Just ask Tony Blair.

While campaigning for office, Blair surrounded himself with such luminaries as the rockers from Oasis, Pulp, and Blur. As a result, his Labour Party looked young and vital, and the phrase “Cool Britannia” began popping up everywhere.

But when the government proposed a series of measures unpopular with Britain’s youth — such as making wannabe pop stars leave welfare and get a job — a pop star backlash ignited. Blair and his government suffered a string of verbal attacks from the very people he had so carefully courted, including Jarvis Cocker, lead singer of Pulp, and Alan McGee, owner of Oasis’s label Creation Records.

Cocker, who survived for eight years on welfare before hitting it big, publicly denounced the new government. And McGee, a member of the Music Industry Forum, which advises the government on culture issues, said, “If we want the benefits that music brings — the money, the cultural diversity, the respect from overseas — we have to allow the musicians to eat.”

In the face of this criticism, Blair — once a band member himself — reversed the welfare decision and created a new plan, popularly dubbed “rock ‘n’ dole,” that will allow struggling musicians to collect welfare while receiving education and training. Under the plan, tomorrow’s stars can enrol in a structured full-time education and training option or, alternatively, an “open learning” option, under which the government will require them “to keep a detailed diary of the work they are doing, such as rehearsing, practising, or songwriting.”

While some call the whole idea a licence to loaf, Blair insists that only “qualified” struggling musicians will be permitted to take part.

Rondi Adamson

Inflating hate crime

EVERY YEAR, USUALLY IN THE SPRINGTIME, the Toronto Police Intelligence squad releases what has come to be known as its annual “hate crime” report. Unbeknownst to the public, however, the statistics in these reports have serious problems, including being wrong by a factor of over a hundred. In February for example, the Globe and Mail wrote: “A total of 187 hate crimes were reported in Toronto last year, a seven per cent increase.” In reality, no one has been tried for a hate crime in Toronto in over 10 years. According to the Canadian Centre for Justice Statistics, the entire country has had but four hate crimes in the past 25 years, an incidence so low as to be statistically insignificant. How did we get from statistical insignificance to 187 hate crimes in a single city in one year?

The answer lies in the police’s invention of a criminal offence. For the record, the Parliament of Canada — not your local police department — decides what constitutes a crime in this country. According to the Toronto Police Services Board, an official watchdog agency, these statistics do not represent hate crimes at all but far more common offences, such as assault, that, under the Criminal Code’s Section 718.2, allows a judge to impose an increased penalty if hatred motivated an offence. Despite their apparent similarity, a hate crime and a hate-motivated crime bear no legal relation to each other. The former is an extremely serious criminal offence with constitutional implications involving rights to free expression, while the latter is a mere sentencing provision for other crimes.

Curiously enough, all the groups that originally asked the Toronto police to begin recording potential hate-motivated crimes — including the former Metropolitan Toronto’s Anti-Racism Access and Equity Committee and the former City of Toronto’s Mayor’s Committee on Community and Race Relations — share a common political goal. They are working to repeal a Criminal Code provision requiring the Attorney General’s permission to lay hate crime charges. This provision, designed to prevent vexatious or frivolous charges, prevents anyone from using the Criminal Code to silence political opponents. To justify their demands, these antiracism groups point to the massive increase in the number of reported “hate crimes,” an increase that just happens to coincide with the very year (1993) that Toronto police began keeping records at their urging.

The groups characterize their request as nothing more than “tightening up” the existing hate crime law. But should they succeed, they would be able to initiate their own hate crime proceedings, effectively converting police “hate crime” units into a form of “speech police” who ferret out and silence incorrect political opinion. Editorial cartoonists, radio talk show hosts, religious leaders, and theatre producers would all find themselves facing the threat of arrest.

K. Alan Fenton

Chinese baby boom

CHINESE COUPLES WHO WANT A BOOMING FAMILY WITH MORE THAN ONE CHILD — just one more than one, mind you — can now break out the cradle a second time.

China’s one-child-per-couple policy has given way to a new two-child policy, which allows many of the 50 million people born under the old procreation rule to have two children. (People with siblings cannot take advantage of the new regulation.) The Chinese government created the one-child policy 20 years ago to curb what seemed like out-of-control population growth.

Even before that policy, fertility in China had abruptly decreased. But that decrease has created another demographic nightmare — a rapidly aging population, a concern anywhere, but an even greater one in a low-income country like China. Experts predict one in four Chinese will be elderly in 2020, with an acute problem especially in cities, where birthrates seldom rise above one child per mother. Work forces are already shrinking as huge numbers of people retire. In Shanghai, for example, 17 per cent of the population is over 60 years old. Su Songxing, a population expert at Shanghai’s Academy of Social Sciences, warns that “the cities have a major welfare crisis,” adding that, in some places, “the conditions for allowing parents to have more than one child are clearly in place.”

Rather than increasing the population, others propose that the Chinese government promote migration from rural to urban areas. China has hundreds of millions of surplus farm workers who could easily rectify any urban labor shortage. Enter China’s visceral regional bias, which pits city people against country folk.

Shanghai’s mayor, Xu Kuangdi, complains that the Chinese government is undermining the “quality” of the Chinese people, as Shanghai’s numbers decline while the peasants’ ranks increase. He has lots of company, says Gu Baochang, a population-policy researcher at Beijing’s Demographics Information Institute, who notes that many senior bureaucrats have raised the “quality” issue and that cities reject migration as a solution to population problems. “They want their own people to reproduce more.”

Officials at the State Family Planning Commission acknowledge that pressure from cities has created a more lenient attitude toward two-child families, at least for only children who want to marry one another. But this new leniency applies, they say, only to cities that have a proven one-child policy history. And Chinese officials vociferously deny that concerns about the quality of China’s population have promoted the changes.

“It is not our policy that city people are better than farmers,” says Wang Guoqiang, a commission spokesman, who points out that, after all, “the Communist revolution began in the countryside.”

Rondi Adamson

Too much cooperation

WHAT DOES A RURAL ELECTRIFICATION ADMINISTRATION DO when there’s no more rural electrification to administer? Anything it wants. President Franklin D. Roosevelt’s New Dealers founded the REA back in 1935, using it to lend money to co-ops in the U.S. countryside. The idea was to bring power to the 89 per cent of rural America that lacked electricity. But it didn’t take long for mission creep to set in.

The agency’s first new step came in 1949, when it revised its raison d’être to include the improvement of farmers’ phone service. In the ’80s, it crept into another form of telecommunication, spending millions so that rural folks could watch satellite TV. Around the same time, REA started working with local chambers of commerce and similar groups to promote rural economic development. It also launched the Associate Member Program, financing electric co-ops’ forays into other fields, from wastewater treatment to medical care.

These days, it dabbles in almost everything: Propane, computer equipment, air conditioning — you name it, the REA’s been there. Except it isn’t called the REA any more: The authorities have rechristened it the Rural Utilities Service, a nice, vague name for an agency in perpetual search of a mission. Testifying before Congress in 1997, RUS administrator Wally Beyer described his employer as “the federal government’s point agency for rural infrastructure assistance.” Which, of course, can mean almost anything.

These days, virtually all of rural America is electrified. Telephone service is also near universal, rising from about 38 per cent of farms in 1949 to over 95 per cent today. “In a rational world,” antitax activist James Dale Davidson wrote of the old REA, “the government would declare victory and begin closing shop. In the decidedly irrational world of Washington, however, the program lives on.”

Davidson is absolutely right. Yet in an important way, he’s also wrong. The former REA is not behaving irrationally. No one expects a business that succeeds in its original mission to “declare victory and begin closing shop.” IBM did not shut its doors when the word processor overtook the typewriter. A business adapts; it introduces new products; it moves into new markets; it struggles to survive. Government agencies do the same — they just do it with public money.

So the RUS has moved into areas that no one would claim the market has underserved. When the U.S. government’s low-interest loans allow co-ops to outcompete local businesses by selling, say, propane at cut-rate prices, the agency isn’t advancing rural economic development; it’s crippling it.

Jesse Walker

The overtime gendarmes

WORKAHOLICS PLANNING A MOVE TO FRANCE HAD BETTER THINK TWICE. As part of a program to bring the work week down from 39 hours to 35, without pay cuts, by the year 2000, France’s job inspectors have been raiding corporations and shaking up employees who dare to stay late at their desks.

The socialist government hopes that this policy, passed in May of this year, will help reduce France’s 12 per cent unemployment rate — the idea being that the shortened work week will spread scarce jobs around. Labor minister Martine Aubry, who created the plan, has a “profound belief” that it will create hundreds of thousands of jobs.

Earlier this year, at a subsidiary of the Alcatel firm, which was working to complete a major contract on time, executives were astonished to find job inspectors in their midst, taking names and demanding to know why employees were working past 7 p.m. At another firm, a subsidiary of the defence firm Thomson-CSF, about 1,500 employees face fines of up to $80,000 each, as well as potential jail time, in the wake of an “after hours” raid.

Over 400 employment and solidarity ministry inspectors carry out the raids — often following tips from labor unions. The inspectors cannot be accused of slacking off on the job: In the course of their official duties, they have gone so far as photographing car licence plates in company parking lots and monitoring personal computers to make sure that employees aren’t taking work home.

“Several thousand” violations have been reported at four or five companies, according to a ministry spokeswoman. “They are test cases, really,” she adds.

Rondi Adamson

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Discussion group on Celestial city

Alisa Smith
The Next City
September 21, 1998

Discussion

THE BIG DIPPER. THAT’S MY CELESTIAL HIGHLIGHT ON A CLOUDLESS NIGHT when I stand on my residential street at the edge of downtown Victoria. Just a few pinpricks of the major constellations populate my sky. Last year, when I went with friends to suburban Mount Tolmie to view comet Hale-Bopp — supposedly one of this century’s greatest astronomical spectacles — I could see only a dull smudge instead of the promised trailing fireball. I did not then realize that my nighttime sky is so dull because our cities are getting brighter year by year and, in the process, becoming sterile and charmless.

We unthinkingly pay for thousands of new city streetlights and the electricity to run them. The International Dark-Sky Association, a group of astronomers fighting light pollution, estimates that the United States spends $1 billion each year on inefficient, misdirected light. Such wanton wastefulness should alarm citizens across the political spectrum, from those lobbying for funds to expand the social safety net to those seeking to cut the deficit.

When I think of night in the city, I think most of the false stars close to me — the glaring streetlights and highrise offices lit up 24 hours a day — or of the sickly orange dome formed as city lights reflect off the clouds. Even here — on Canada’s western edge, where the sun finally sets into the ocean’s black void — the night is anemic. The glow of Seattle, of the American logging town Port Angeles, and of Vancouver and the ski runs in the mountains above: These sights symbolize the modern night, not the constellations the ancient Greeks outlined as Sagittarius, the archer, or Gemini, the twins.

Everyone loves stargazing on a balmy night in the countryside, yet most people ignore the sky above. The suburbs sprawl, and the streetlights sprout up like weeds. The car lot closes, but its lights stay on. A neighbor spotlights his oak tree, and those next door lose their view of the stars.

Unlike most of us, astronomers think always of the night sky. They have sensed the growing light pollution problem for decades. “At Mount Wilson, in the hills above Los Angeles, they did fundamental work on cosmology — the flashy stuff you read about in the newspaper, like the expansion of the universe,” says Dr. David Crawford, the International Dark-Sky Association’s founder. “There’s no faint [star] work done there at all now.” Now, serious funding heads only to observatories in Hawaii and Chile, where the darkness remains profound.

In the early 1980s, the Illuminating Engineering Society of North America estimated that, by the year 2000, stars would no longer be visible from the largest North American cities, and we may just fulfil this dire prediction. In the countryside, stargazers can see 2,500 stars; in the suburbs, 250; in large cities, a paltry 25. No one recalls New York City’s starry sky but rather the Empire State Building’s illuminated form.

NO LAW DICTATES A CITY’S OR TOWN’S LIGHTING LEVELS — city bureaucrats simply adopt the Illuminating Engineering Society’s standards, as a matter of course. Moreover, they often exceed these standards by up to 10 times: their motivation most often a visceral fear of the dark, compounded by simplistic politics that ricochet from one panacea to the next.

The Illuminating Engineering Society first set street lighting standards in the 1920s, and they’ve been getting brighter ever since. Despite this, litigious citizens blame supposedly ill-lit roads for causing accidents in hopes of recovering some money. “You get a lot of ‘jailhouse’ lawyers taking a lightmeter reading to make a case, though often incorrectly,” says John Mickel, chair of the Illuminating Engineering Society’s roadway lighting committee. Our cities are getting brighter because people believe that light will keep them safe from auto collisions, crime, and mishaps of all descriptions, but, given experts’ reports, we’d do better to adorn our doors with garlic, a cheaper talisman against the night.

“Improving streetlights sometimes reduces crime and the fear of crime and sometimes increases it,” says Jason Ditton, a law professor at the University of Sheffield, a director of the Scottish Centre of Criminology, and an expert in the relationship between lighting and crime. “When lighting reduces crime and the fear of crime, the effect falls off after a while. The same is pretty much true for every ‘magic bullet’ solution to the complex problems of crime and the fear of crime.”

After Wandsworth, a London borough, added 3,500 new lights in 1991, British researchers carefully analyzed crimes reported to the police and found absolutely no change. In 1993, Ditton released a study of a Glasgow low-income housing project that had increased lighting, enhanced security features, trimmed bushes, and added new paths in an effort to combat crime. He scrupulously assessed people’s feelings of safety and found that, overall, they felt less safe than before. Evidently, all the hype about safety precautions convinced residents they were living in a dangerous neighborhood.

“If it were so easy to reduce crime with lighting, then we should have made considerable headway by now,” points out the International Dark-Sky Association’s Crawford. In fact, he notes that “if you plot people’s fear of crime or crime rates over the last decade, you see that lighting has increased at a similar rate.”

Most crimes are crimes of opportunity, depending on a lack of potential witnesses. Some crimes, such as burglary, actually occur most frequently in the day. Overlighting may even facilitate crime; a neighbor annoyed by a bright security light shining in his window may close the blinds and no longer have a view over his neighbors’ yards. There goes their best security feature.

As crime festers in North America’s ailing urban cores, politicians, to get themselves re-elected, scramble to find the elusive magic bullet. For instance, when the public blamed Detroit’s mayor for increased crime rates, he trumpeted plans to light up the inner city to reclaim the streets. People who study crime know that answers do not come so easily. Even adherents of lighting for safety are half-hearted, admitting that lighting acts more to soothe people’s fears than to reduce crime.

Constable Mike Yeager, a Victoria police officer trained in environmental design and crime prevention, cautiously recommends adding lights at well-chosen locations, such as the rear of an apartment building that faces another. However, he adds that unless lighting is carefully shielded and directed downward, it becomes an irritant. “Who wants to live in bright lights all the time?” Yeager asks. “You’re not going to get any sleep on the ground floor with floodlights shining in your window.” This more thoughtful attitude to anticrime lighting echoes astronomers’ recommendation to focus light where needed and away from the sky.

In Victoria, consistently sensationalized crime reporting has thoroughly convinced citizens that the downtown core teems with dangerous legions of undesirables, especially at night. Though businesses install bright spotlights in their doorways, people still see the bogeyman around every dark corner and stay home after dark.

In reality, for the average citizen, Victoria is extremely safe. Police here grit their teeth and say so whenever they have the opportunity. Typically, about six murders occur per year in this city of over 250,000. Of last year’s 1,700 assault reports, two-thirds involved fights outside bars between 11 p.m. and 3 a.m. “Most bars are well lit,” says Yeager. “It’s two drunk people who have lost all sense. Lighting won’t help that.”

A large treed area such as Victoria’s Beacon Hill Park might not be as safe as downtown — not because of darkness, but for the lack of people. “The basic level of lighting is adequate. It’s a park, not a parking lot,” says Yeager. When it comes to preventing crime, “the short answer is: The more people there are around, the better.” For example, Dallas Road Beach is even darker than Beacon Hill Park, but safer. Popular with what Yeager prosaically calls nighttime “user groups” — partiers, lovers, hippies, the homeless, druggies — Dallas Road Beach has an extremely low “random assault rate.” Its darkness is more divine than deadly, offering that increasingly rare and perfect serenity, tailor-made for gazing at the stars or into a loved one’s eyes.

Carolyn Whitzman, coordinator of Toronto’s Task Force on Community Safety, enthusiastically advocates using lights to ease people’s safety concerns, but even she has her reservations. “There was one study from England that seemed to prove there was a positive impact [from increased lighting],” she says wryly.

“Sometimes, lighting can add to the problem. For instance, there was Belt Line Park, a linear park in North Toronto on an abandoned railway line that crosses intersections and cuts through ravines. A few years ago someone suggested that all the entrances be lit. However, that would deceive people into thinking that it’s a park that’s used at night when it’s not.” If city planners remove fears that arise from a valid survival instinct, people may expose themselves to needless risks.

Even though she encourages safety audits, which frequently result in calls for brighter lighting, Whitzman readily acknowledges that it can go too far. “Why should the light shine upward? Why does lighting focus on streets, where the cars have headlights, and not on sidewalks where the pedestrians are? Why should office buildings be lit up like Christmas trees?” she asks with surprising passion. “It can get too bright, too sterile — then it’s not an inviting atmosphere.”

IN OUR QUEST FOR BRIGHTER CITIES, WE FAIL TO CONTEMPLATE OUR ACTIONS’ far-ranging effects on other species. In Japan, researchers noticed that fireflies had all but disappeared in many areas where city lighting interfered with insect navigation, communication, and reproduction. On the beaches of Boca Raton, Florida, researchers discovered that loggerhead turtles that hatched in dark areas were instinctively drawn to the seaward horizon’s faint glow, to the water and to safety. But when condominium lights shone on the beach, the young turtles moved toward the buildings, making them easy snacks for predators.

In Vancouver, formerly nocturnal coyotes, first noticed in the city in the 1980s, now roam the streets by day. “You can hardly see the stars at night. Has it changed their behavior?” ponders Kristine Webber, known as the Coyote Lady because of her recent high-profile master’s study. She intended to study people’s interactions with their new neighbors, but quickly realized the coyotes themselves were acting strangely in their new surroundings. “They become desensitized to light and people,” Webber says, wary of the problems that may develop from coyote-human interactions in the city’s busy daytime environment — from the suburbs to the gritty downtown Eastside.

Across Canada, we mark the seasons by the mass migrations of birds whose complex homing systems, relying on the stars, the moon, magnetic fields, and deep-frequency sounds, guide them from the Arctic to Mexico. In a rain or fog that obscures the stars, artificial lights act as false and fatal beacons. Most dramatically, during a 1981 storm near Kingston, Ontario, 10,000 birds died after hitting the Lennox generating station’s floodlit chimneys.

To raise awareness and combat the deadly siren song of Toronto’s brightly lit office towers, Michael Mesure founded the Fatal Light Awareness Program (FLAP) in 1993. He remembers his epiphany vividly. “It was May 16, 1990. A fog had rolled in. It was the only time I’d seen it like this. There were hundreds, or even thousands, of dead birds everywhere. It was horrible,” he says with a shudder. For the last three years, he has worked full time with only sporadic pay to collect the dead and nurture the injured, starting at 4 a.m. in the financial district. Typically, Mesure and 30 volunteers retrieve 2,000 to 3,000 birds per year of an estimated 10,000 that die colliding with lit office towers.

“We also encourage managers to reduce lighting without spending money,” he says. “Quite honestly, millions of dollars can be saved.” As well as light shutoffs, FLAP suggests installing motion detector lights, which pay for themselves in two years, in seldom used boardrooms.

Getting action from the behemoth corporations that own Toronto’s largest buildings seemed impossible, but one major tower did halve its night lighting. “That’s a big step. That’s thousands of windows and rooms. They might get others on board,” Mesure says. FLAP also scored a major success with the CN Tower, which abandoned the spotlight illumination that killed many birds.

Initially, building managers were skeptical that overlighting created problems, since scavengers or FLAP volunteers removed most of the dead birds by morning. Now, FLAP brings along a travelling gallery of stuffed birds — 50 of the most commonly found species, including warblers, sparrows, ovenbirds, and thrushes. They’ve encountered 126 species in all, some on the endangered list, as well as four species of bats, monarch butterflies, praying mantises, and dragonflies.

Mesure notes that light pollution is more than visual. Carbon dioxide emissions from coal-burning electrical plants and the disposal of the fluorescent tubes’ toxic mercury threaten both bird and human environments. Pessimistic about the chances of enacting a strong anti-light-pollution bylaw, he says, “We’ve kind of dabbled in it. But good luck in a city the size of Toronto.”

I REMEMBER VIVIDLY ONE NIGHT WHEN I WAS 11 YEARS OLD, sitting around a camp fire with relatives in northern Alberta, gazing at the multitudes of stars and at the Northern Lights’ serpentine beauty. Staring up at the sky so long, I noticed some stars that were moving and far too high to be airplanes. Given my limited experience, I concluded that they were UFOs. Now I know they were satellites, their light never before visible to me from Edmonton where I then lived.

Big city kids have even stranger encounters their first time under a rural sky. In an Internet magazine, Marc Spiegler writes of a friend from Detroit who, as an eight-year-old, went camping for the first time. Late at night, she stepped out of the tent and started screaming, convinced that the clutter of stars were hurtling down at her.

In populated areas, air pollution intensifies sky glow, contributing to the skyscape’s deterioration. Airborne particles both reflect and absorb city light. For those lucky few in remote rural areas, the air pollution’s absorbing quality contains the sky glow over offending cities, paradoxically improving visibility. Nevertheless, satellite maps of North America at night show that dense clusters of lights cover the U.S. eastern seaboard and most of southern Ontario and Quebec. These regions’ seemingly rural locales face serious light pollution threats.

“I live in the country, halfway between Belleville and Napanee. City lights wreck about half my sky,” says Bill Broderick, head of the Royal Astronomical Society of Canada’s light pollution committee. “The ordinary person likes to see the skies too. I’ve had people say to me, ‘I can’t see the Little Dipper anymore’ and ‘Do we still have Northern Lights?'”

Increasing numbers of people will wonder what happened to the Little Dipper. In 1979, when an observatory went up at Mont Mégantic, Quebec, light pollution compromised 25 per cent of the skyscape for astronomical observations; today, it ruins 50 per cent, and researchers repeat this story at observatories across North America, many built before the Second World War in formerly remote locations.

Experts now discuss the need to send telescopes into space, but, for the moment, institutions are pursuing more earthly, though still costly, measures. The University of Toronto opened an observatory in the remote Andes, so researchers could study stars now nearly invisible from its original Richmond Hill, Ontario, observatory. When the university built the observatory in 1935, Richmond Hill was a sleepy farm community north of Toronto. Today, high rises loom taller than the observatory, and an ever-diminishing buffer zone separates its 105,000 people from the metropolis.

To salvage something of their domestic skygazing operation, observatory staff pleaded for light control bylaws, winning shielding requirements and an 11 p.m. light-dimming curfew. Even so, the bylaws cover only new developments and exempt detached homes. In another small victory, starting in 1989, Richmond Hill switched from mercury vapor to high-pressure sodium streetlights, which interfere less with astronomical research and save 30 per cent in energy bills, paying for themselves in two to five years. However, Richmond Hill has yet to see any overall savings — sprawl continues to add 500 to 1,000 new streetlights per year.

British Columbia’s Dominion Observatory, a facility used by over 100 scientists from universities across Canada each year, faces a similar light pollution threat. Built in 1918 in Saanich, then a rural hinterland, the tentacles of Victoria’s sprawling growth squeezed ever tighter, noticeably compromising observations by the 1970s. In the 1980s, accelerating nearby development prompted staff to lobby for light control bylaws.

Saanich now uses only high-pressure sodium lights and requires light shielding for a five-kilometre radius around the observatory. Strong as these bylaws are, however, Saanich continues to grow, and even sensible lighting adds to the ambient glow that obscures the stars. “With the Saanich bylaws and new equipment, we have been able to keep even. But we’re beginning to lose the battle,” says Jim Hesser, Dominion Observatory’s director. “Only on the best cloudless nights can we make observations that were possible easily 10 years ago.”

Today, Richmond Hill and Saanich have the most stringent lighting regulations in Canada, but, clearly, communities need to do more to save their vanishing skyscape. Citizens need to question why politicians overlight their cities when it makes no dent in crime rates, harms the environment, obscures the stars, and wastes money.

CITY LIGHTS SHOULD EMULATE STAGE SPOTLIGHTS, WHICH ILLUMINATE very particular areas. Directing lights at the street would let a lower-wattage bulb achieve the same brightness, at a reduced cost. The worst star-obscuring offender is light shining horizontally or even upward, as with the globe-style streetlight that cities often use to suggest old-fashioned character. The even more common “cobra-head” streetlights — designed in the 1960s for U.S. interstate freeways — have covered heads but low-hanging bulbs whose sideways glare hazardously decrease visibility.

The International Dark-Sky Association recommends that cities install shielded lights in new developments. Cities can also retrofit old fixtures with shields; Saanich did this for a one-time cost of $20 to $65 for each unit. There are problems besides streetlights, which cause approximately one-third of light pollution. Advertising and sports venue illumination account for another third, leading experts to recommend directing spotlights downward and limiting the star-obscuring halide lights found in stadiums, playing fields, and car dealerships. Private lighting accounts for the final third of light pollution — astronomers shudder at the rising popularity of decorative lawn spotlights.

In the late 1980s, both BC Hydro and Ontario Hydro encouraged cities to switch from old, inefficient lights such as mercury vapor to more efficient high-pressure sodium lights. Unfortunately for city stargazers, while educating municipalities about energy efficiency, the utilities failed to consider the equally important issue of light pollution and to encourage its customers to purchase shields for the new lights.

Recently, BC Hydro finished converting 95 per cent of its roadway lighting to high-pressure sodium, along with 99 per cent of the streetlamps that it owns and that municipalities rent. In addition, two years ago, municipalities converted 90 per cent of the streetlights they own independently. This change saves 60 gigawatt-hours, or approximately $3 million to $4 million each year.

In Steetsmart, a similar program that ended in 1993, Ontario Hydro subsidized 25 per cent of the municipalities’ one-time cost in switching to high-pressure sodium. Eighty per cent of Ontario municipalities participated, shaving off approximately 45 per cent, or $14 million, of the province’s annual street lighting bill. “The cheapest megawatt is the megawatt saved — because it reduces the need to build new [power] generators,” says John Earl, a spokesperson for Ontario Hydro.

One could also argue that the cheapest light is the light never installed, or never turned on. Simply put, if the public would accept turning off 25 per cent of city lights, it would see a 25 per cent cut in its electricity bill, saving millions of dollars, and views of the sky, across Canada.

UNTIL RECENTLY, TORONTO WAS THE ONLY REMAINING major North American city fully illuminated by antiquated incandescent lights; in the early 1990s, Toronto scrapped the energy-guzzling system. But instead of making narrow spectrum, shielded, or reduced lighting a priority, then councillor Howard Levine went off on another tangent. Bowing to his pressure, the city replaced over 40,000 fixtures with metal halide lights at a cost of $17 million. Any change would have been costly, and proponents quickly point out that the lights would pay for themselves in five years. But it wasn’t the dollar figure that infuriated opponents, rather, the seemingly innocent issue of the light’s color had them fuming.

“From our point of view, this light is ‘dirty,'” explains Dominion Observatory’s Hesser. Metal halide’s full-spectrum light contaminates astronomers’ high-resolution work. “If all municipalities’ lights changed to that, it would be a disaster.”

Levine, who considers metal halide’s white, full-spectrum light visually pleasing, dismisses concerns, saying, “The astronomers will have to devise some kind of filtering device. It’s two million people versus a handful of astronomers.” He says representatives from other towns constantly tour Toronto at night when contemplating switching to metal halide. “We have some of the most beautiful and efficient lights in North America.” Levine also claims that Toronto’s old-fashioned “acorn” fixture addresses the issue of upward-shining light, and he criticizes other cities’ unthinking use of the standard cobra-head streetlight and orange-toned sodium lights. “Vancouver went wild, they blitzed the city. It looks like hell,” he says.

As little as they like metal halide, astronomers suggest a compromise, such as using carefully shielded metal halide lights only in downtown main streets and other busy pedestrian areas. In residential areas, people are sleeping, not window-shopping. Despite metal halide’s attractive light, most Torontonians hardly noticed the switch; Levine says only three or four people called city hall asking what had happened.

When asked if metal halide lights obscure the stars, he answers, “You haven’t been able to see the stars from Toronto for decades. It’s overlit. But if people want safe streets, well-lit streets, you can’t expect to see a million stars.”

IN THE U.S., MANY COMMUNITIES ARE STILL TAKING THE FIRST BABY STEPS to convert away from mercury vapor. However, those now switching better understand the need for, and efficiency of, cutoff fixtures, which focus light downward. Anticipating significant savings, the private utility Blackstone Valley Electric is converting to high-pressure sodium cutoff lights in Woonsocket, Rhode Island. Over a five-year period from 1997 to 2001, the city will change its 3,258 lights for $51 each, or a total $166,158. The new lights cut yearly kilowatt-hours by 35 per cent, which the utility will pass on to the city in a 4 per cent rate reduction. In Massachusetts, the legislature is debating a bill requiring all new state-funded streetlights to have cutoff fixtures.

On the other side of the continent, San Diego has been experimenting with new lighting methods for over a decade. In 1984, the city passed stringent bylaws to save the skies over the important observatories on nearby Palomar Mountain and Mount Laguna. Councillors decreed low-pressure sodium — which less obstructs star observations and beats high-pressure sodium’s energy efficiency — for all city lights north of Interstate 8.

Unfortunately, in more recent years, anticrime rhetoric has prevailed. In 1993, San Diego councillor John Hartley led an 18-month fight to return to brighter lighting as a crime cure-all, despite scientific evidence contradicting his position. “Science is not supposed to hold us hostage and take us back to the Dark Ages,” he proclaimed. “Bright lights are what people want.”

Despite the science, few rushed to the defence of low-pressure sodium lights. “If you’ve seen these lights — everyone calls them bug lights. They have a brownish, dim color. People hate them,” says David Di Pierro, an associate traffic engineer with the city. However, he scoffs at the notion that other types of lights will help in higher crime areas, saying that a neighborhood’s character, not its lighting, affects crime rates.

Although the low-pressure sodium lights repelled many San Diegans, they do approve of the cutoff fixtures. Originally intended to shield the sky for the observatory, the city frequently installs them by request. “We have a lot of people calling in with light shining in their bedrooms, and they want cutoffs,” Di Pierro says. What’s good for the stars can be good for public relations.

Despite some positive changes in Canada and the U.S., light pollution is increasing throughout North America. “Sky glow is an inevitable result of population growth,” says BC Hydro’s Hughes. “Any light that shines down will reflect up.” Yet judicious light planning can alleviate the grim scenario of inevitability. Tucson, Arizona — a major astronomical research centre and the International Dark-Sky Association’s home town — is actually darker than it was 15 years ago, despite population growth. Because the city uses glare-reducing cutoff fixtures and a mix of low- and high-pressure sodium bulbs and strictly controls public and private lighting, Tucson’s 800,000 people can still see the Milky Way.

Years of careful education nudged the private sector into compliance, despite western Americans’ reputation for balking at the reins of publicly mandated restrictions. “We have had zero per cent opposition,” says IDA’s Crawford. “Businesses and lighting people are strong allies. We save money and have a more attractive city.”

GRADUALLY, PEOPLE CONCERNED WITH LIGHT POLLUTION ARE MAKING tenuous connections. Now that Crawford has retired as a Kitt Peaks Observatory astronomer, he plans to tout Tucson’s success to other North American cities. In Britain, the Council for the Protection of Rural England has joined astronomers to fight against light pollution in the small towns and hamlets whose car lot floodlights threaten the pastoral serenity. The British Astronomical Association runs the Sky Glow Project, involving regular folks in monitoring light pollution. Recently, the Royal Astronomical Society of Canada started the Canadian Campaign for Dark Skies, hoping to involve naturalists and conservationists. FLAP is already working with the International Dark-Sky Association and with a group of amateur Toronto astronomers. In British Columbia, the Metchosin Community Association — a group fighting to keep the small town’s rural character safe from Victoria’s sprawl — is lobbying the town council for anti-light-pollution bylaws.

These activists are waging a war of science and beauty against the fear of the dark that lurks in the animal part of our brains. If we take a deep breath, we’d remember that the darkness feeds our souls.

Walt Whitman, that incomparable bard of nature’s grandeur, was moved by the darkest nights. In “Night on the Prairies” he wrote: “I walk by myself — I stand and look at the stars, which I think / now I never realized before. / Now I absorb immortality and peace, / I admire death and test propositions.”

Sadly, we listen more often to the inner cop than to the inner poet. As long as we’ve had cities and crime, people have sought to control public space and keep the bogeyman at bay. Back in the 1870s, Paris went on an urban park building spree, but the governing elite — seeking safe, genteel strolls and a counterpoint to the city’s moral and physical decay — worried about the citoyens‘ pesky nighttime behavior. In 19th-century Paris, the elite assuaged their fear of the lower classes by fencing public parks and locking them at night. It is no longer acceptable to lock the parks, so, instead, we harshly illuminate them and our city streets, hoping to allay our fear of one another. For an imagined security, we obscure our starry nights with light.

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Letters

, councillor, City of North Vancouver, responds: November 16, 1998

, Montreal, responds: November 29, 1998

  1. Darrell Mussatto
  2. Roger Jones

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Darrell Mussatto, councillor, City of North Vancouver, responds: November 16, 1998

I very much enjoyed reading your article in The NEXT CITY. As a municipal councillor with the City of North Vancouver I certainly understand how easy and desirable it is to use quick fixes, which almost always end up being wrong, to address very complex problems. The idea that increased lighting will always reduce crime and make cities more livable is a good example.

We as a municipality are about to conduct a safety audit of our city, and I surely hope we do not fall into the trap of simply providing more street and building lighting only to increase safety. Making the streets safer for all is a complicated problem requiring a wide range of social, health, and economic solutions over a long period of time.

Thanks again for writing an article that challenges some of our current beliefs and causes us think a little more about the problems we face.

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Roger Jones, Montreal, responds: November 29, 1998

Thank you for an excellent article. I agree entirely that light pollution spoils our cities. When the recent comet was visible from earth, my wife and I tried to view it from our parking lot but could only see a faint smudge. We then drove 20 miles west of the city, then away from the “orange lit” highway to get a better look. We could see a bit more of it but were still surrounded by an orange haze at horizon level. Very sad — so much waste of capital and energy, too.

I am also saddened that our politicians always look for simplistic solutions to what ails us, like adding more street lights, “tougher” gun control, lower speed limits, and so on — in the main, all mindless, knee-jerk reactions. They seem to pay very little attention to logical causality,

i. e., how likely is it that what they plan to do would clearly fix what they, or the voters, don’t like. Also, they have little regard for the cost. Indeed, in some cases, like gun control (Bill C-68) politicians actively suppress evidence against the “causality” they wish to promote and underestimate the cost by large multiples on purpose.

We used to own a country place in the Eastern Townships of Montreal, 82 miles out of town. You could look up on a cloudless night and see the Milky Way with stars like hard, bright white points burning out of the sky. We even saw the aurora once or twice. Now, for us, seeing the stars is a rare experience.

By the way, my company manages a town house condominium (a “mini-city” in itself.) We still get requests for “more lighting” of walkways, “turn lights on earlier,” “keep them on later” (for the morning newspaper man, no less!), and put more lights in the parking lots — even though we live in the middle of a city and the light spillover onto the condo’s land is often enough for walking. To address this, we are planning to use motion detectors on some lights, to replace inefficient lamp timers (they spend more time wrongly set than correctly set, by definition!) with photocell on/off switches, and to use minimum wattage spot lighting with low light spill for new installations. Thus, we are trying to be good citizens and not add to the problem.

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Discussion group on – Robed dictators

Rory Leishman
The Next City
September 21, 1998

 

Legislators for life

A coup from the courtroom has usurped our democracy

Discussion

ON MARCH 6, 1857, THE UNITED STATES SUPREME COURT dropped a political bombshell on the American people in the form of the Dred Scott decision. In this infamous judgment, Chief Justice Roger Taney declared that blacks, slave or free, were not then, and never had been, citizens of the United States. To support this shameful conclusion, the court held that the ringing affirmation in the Declaration of Independence that “all men are created equal” was not intended to apply to blacks because they were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”

In this same judgment, the Supreme Court struck down a statute of the U.S. Congress — the historic Missouri Compromise of 1820 — that banned the extension of slavery into the United States’ territories. In the court’s opinion, the law violated the rights of slave owners under the United States Constitution’s Fifth Amendment, which declares that “no person shall be . . . deprived of life, liberty or property, without due process of law.” By presuming to quash a political compromise on this basis, Chief Justice Taney and six of his Supreme Court colleagues inflamed tensions over slavery and helped precipitate the United States Civil War.

People who think non-elected judges should act as politicians by dictating public policy when interpreting the Constitution might keep the disastrous Dred Scott decision in mind. Those who expect judge-politicians to be more progressive than democratically elected legislators should also recall how the 1930s United States Supreme Court tried to sabotage President Franklin Roosevelt’s New Deal by striking down the National Industrial Recovery Act, the Railroad Retirement Act, and the Agricultural Adjustment Act. In response, an outraged Roosevelt announced plans to pack the Supreme Court with liberal judges. Just weeks later, the nine Supreme Court members conjured up a pro-New Deal decision that has been aptly derided as “the switch in time that saved nine.” Thereafter, the judges avoided further confrontations with the Roosevelt administration by respecting the division of powers between the legislative and judicial branches of government, as originally intended by the authors of the United States Constitution.

Canadian constitutional scholars used to view the excesses of American judge-politicians with smug condescension, noting that Canadian courts would never second guess the wisdom of a statute that had been duly enacted into law by elected representatives of the Canadian people. Unfortunately, scholars can no longer make such statements. Since the Charter of Rights and Freedoms was incorporated into our Constitution in 1982, the Supreme Court of Canada has routinely struck down laws enacted by Parliament or a provincial legislature on grounds of policy, amended statutory laws from the bench, ignored the law altogether, and told legislators what laws to enact.

In the past, such high-handed judicial encroachments by non-elected Canadian judges were unthinkable. Today, the inconceivable has become routine.

Striking down laws on grounds of policy

IN THE 1976 CASE MORGENTALER V. THE QUEEN, DR. HENRY MORGENTALER’S lawyers tried to persuade the Supreme Court of Canada to abolish the Criminal Code’s abortion law provisions on the grounds that they violated a woman’s right to individual liberty as guaranteed by Section 1 of the 1960 Canadian Bill of Rights. Chief Justice Bora Laskin, a noted legal scholar and author of a standard textbook, Canadian Constitutional Law, rejected the argument out of hand, declaring “how foreign to our constitutional traditions, to our constitutional law and to our conceptions of judicial review was any interference by a Court with the substantive content of legislation.”

Seven years later, Morgentaler was charged again with violating the Criminal Code’s abortion restrictions. The matter reached the Supreme Court of Canada in R. v. Morgentaler (1988). This time, the counsel for Morgentaler contended that the abortion law encroached upon a woman’s right to individual liberty as guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms. In an about-face, a majority of judges on the court considered the substantive content of the abortion law, decided that it was ill advised, and, on this basis, struck it down.

Madam Justice Bertha Wilson found the law too sweeping, in part because it purported to protect the lives of the unborn throughout a pregnancy. “It would be my view,” she wrote, “that the value to be placed on the fetus as potential life is directly related to the stage of its development during gestation.” She then considered the stage in a pregnancy at which the state might justifiably intervene to protect the life of an unborn child: “It seems to me that it might fall somewhere in the second trimester.”

Professors Rainer Knopff and F. L. Morton of the University of Calgary, two of Canada’s foremost constitutional experts, aptly comment in their book, Charter Politics: “Justice Wilson is admirably frank in admitting that this is only ‘my view,’ which raises the troublesome issue of why ‘her view’ should be preferred to the collective view of Parliament.”

In a dissenting opinion, Mr. Justice William McIntyre raised this same point. He did not challenge Judge Wilson’s views on the evolving value of life in the womb. He did not express any opinion on the morality of abortion. Instead, he argued that the courts should not pass judgment on an abortion law in interpreting the Charter. He insisted: “The solution to this question in this country must be left to Parliament. It is for Parliament to pronounce on, and to direct, social policy. This is not because Parliament can claim all wisdom and knowledge but simply because Parliament is elected for that purpose in a free democracy and, in addition, has the facilities — the exposure to public opinion and information — as well as the political power to make effect its decisions.”

While many pro-choice activists applaud the 1988 Morgentaler ruling, they ought to reflect on the prospect of conservatives one day regaining ascendancy on the Supreme Court and defying Parliament by banning all abortions. Under these circumstances, many of today’s shortsighted Supreme Court supporters would likely insist, and rightly so, that crucial public policy questions should be resolved by elected representatives of the people, not by judge-politicians.

Amending laws from the bench

WHILE THE COURTS HAVE ALWAYS ADAPTED THE LAW AND THE CONSTITUTION to changing social and economic circumstances, the overriding aim of Canadian judges prior to the Charter was to uphold the law’s essential purposes and principles in accordance with judicial precedents and the legislative branch’s original intentions. Certainly, no judge would have dreamed of amending the plain text of a law as enacted by Parliament.

Then came the Federal Court of Appeal’s 1990 Schachter decision, concerning the Unemployment Insurance Act’s benefits for adoptive and natural parents. The law allowed either parent of a newly adopted child to claim benefits while staying at home, but in the case of natural parents, only the mother could receive benefits. This difference did not sit well with a natural father who complained that the law unfairly discriminated against natural parents, contrary to the Charter’s equality rights provisions. Before the Charter, the courts would have invited the complainant to take his grievance to his elected representatives, who alone could change the law. But in Schachter, the court ruled that the law unfairly discriminated against natural parents, and as a remedy, it unilaterally amended the Unemployment Insurance Act to offer parental benefits to both mothers and fathers in the case of natural, as well as adoptive, parents. In reviewing this case, the Supreme Court of Canada set an astonishing precedent by asserting that the Charter has empowered the courts to read new provisions into a statute law if, in the court’s opinion, the change is necessary to make the law conform to the Charter.

Since Schachter, the courts have handed down a number of similar rulings, changing the text of both laws and lawfully authorized government regulations. In one of the most far-reaching cases, Eldridge v. British Columbia (1997), the Supreme Court of Canada gave the government of British Columbia six months to change the province’s Hospital Insurance Act regulations to provide free sign language interpretation for the deaf at all provincial hospitals. In the Supreme Court’s judgment, the B.C. government’s failure to provide this translation service in publicly funded hospitals violated the deaf’s equality rights, as guaranteed in the Charter, to an extent that is not reasonably justifiable in a free and democratic society. Although both the British Columbia Supreme Court and the British Columbia Court of Appeal had come to the opposite conclusion, the Solons of the Supreme Court of Canada dictated the priority of sign language interpretation over other medicare needs, despite lengthy waiting lists for hip replacement surgery, magnetic resonance imaging tests, and other important medical procedures. The potential cost of the Eldridge decision is enormous since it implies that every Canadian hospital must provide translation services not just for the deaf but for other patients who do not speak the hospital’s main language. In a pointed commentary on this judgment, the Centre for Renewal in Public Policy asks, “Is it the place of the Supreme Court of Canada to be overturning policy decisions of an elected legislature in matters such as the allocation of funds in an overburdened health care system?”

Ignoring the law

THE CASE OF ROBERT LATIMER, THE SASKATCHEWAN MAN WHO KILLED HIS severely handicapped daughter, provides a particularly flagrant example of judge-politicians setting aside the law. In sentencing Latimer for second degree murder, Mr. Justice G. E. Noble of the Saskatchewan Court of Queen’s Bench decided that the Criminal Code’s mandatory minimum penalty of 10 years would violate the Charter guarantee against cruel and unusual punishment. Instead, he found Latimer guilty of “compassionate homicide” — a crime unknown to the Criminal Code — and sentenced him to one year in prison, plus 12 months of house arrest.

While many Canadians applauded the verdict, others were horrified. Lost in this debate are the alarming implications of Judge Noble’s flouting of the law. Can the rights of any citizen be secure in a democracy that allows a judge to set aside the Criminal Code in favor of whatever penalty he considers appropriate?

Dictating laws to Parliament

WITH R. V. FEENEY (1997), THE SUPREME COURT OF CANADA TOOK judicial legislation to new extremes. In this case, convicted murderer Michael Feeney had brutally bludgeoned an 85-year-old man to death in Likely, British Columbia. Within hours of the crime, a police officer tracked Feeney down to a house trailer, called out, “police,” entered the dwelling, found Feeney in bed, and arrested him while he was still dressed in a T-shirt splattered with the victim’s blood. When the case came to trial, a jury found Feeney guilty of second degree murder. The British Columbia Court of Appeal unanimously concurred in the verdict; but on further appeal, the Supreme Court of Canada overturned Feeney’s conviction by a five-to-four ruling. In a judgment written by the late Mr. Justice John Sopinka, the court threw out Feeney’s conviction because police entered his residence without a warrant. This was a novel doctrine in Canadian jurisprudence. It conflicts with a common law rule, going back hundreds of years, that lets police forcibly enter private premises without a warrant in making an arrest, provided an officer has reasonable grounds to believe that the suspect has committed an indictable offence. Scarcely 10 years before the Feeney ruling, the Supreme Court of Canada had upheld this common law rule in R. v. Landry (1986).

THE COMMON LAW HAS BEEN APTLY DESCRIBED AS JUDGE-MADE LAW. Unlike statute laws that have always been subject to dramatic change by the legislative branch, common law rules have gradually evolved through thousands of judicial precedents. In the Supreme Court’s 1997 Winnipeg Child and Family Services decision, Madam Justice Beverly McLachlin explained: “As a general rule, judicial change is confined to incremental change based largely on the mechanism of extending an existing principle to new circumstances; courts will not extend the common law where the revision is major and its ramifications complex.”

What, though, did the Supreme Court do in Feeney? It did not just extend the common law: It changed the law altogether. Specifically, Judge Sopinka held that regardless of what the common law provides, the police had violated Feeney’s right to privacy as guaranteed by the Charter of Rights and Freedoms by entering his trailer without a warrant. On this basis, Judge Sopinka not only quashed Feeney’s conviction but also forbade the Crown from presenting the bloody T-shirt and other incriminating evidence that police had found in the trailer.

In a stinging dissent, Madam Justice Claire L’Heureux-Dubé argued that the police officer had done nothing illegal in entering the trailer and arresting Feeney. She insisted that, quite to the contrary, the arresting officer had acted reasonably, responsibly, and in accordance with the common law’s time-tested principles. She also pointed out that excluding the evidence from the trailer could let Feeney off scot-free. But not even this dreadful prospect moved the Supreme Court majority. Judge Sopinka replied: “If the exclusion of this evidence is likely to result in an acquittal of the accused . . . then the Crown is deprived of a conviction based on illegally obtained evidence. Any price to society occasioned by the loss of such a conviction is fully justified in a free and democratic society which is governed by the rule of law.”

With this statement, Judge Sopinka stood truth on its head. Far from affirming the rule of law, he abandoned it. Instead of upholding the common law, he and the Supreme Court imposed their own peculiar ideas of what the law should require. To compound the effrontery, the court gave Parliament just six months to either enact a new arrest warrant law or see the courts release thousands of other criminals on grounds that they, too, had been arrested contrary to the Supreme Court’s newly minted legal requirements.

Senator Anne Cools, a Liberal appointed to the Senate by former prime minister Pierre Trudeau, bristles at such judicial blackmail. During a debate on federal legislation introduced at Judge Sopinka’s bidding, she rebuked him for usurping “the singular and exclusive jurisdiction of the Parliament of Canada.” She told the Senate “that Mr. Justice Sopinka has reviewed Parliament’s wish to pass or not pass a statute, and has made an order that effects a command to Parliament to enact a statute by his deadline as ordered; that Justice Sopinka could come to this Chamber to give royal assent to this same Bill C-16, is an exercise of power unknown to Canada’s constitutional monarchy and, more important, unknown to Canadian parliamentary history and practice.”

LIKE DELIQUENT CHILDREN CRYING, “THE DEVIL MADE US DO IT,” judge-politicians claim that the Charter of Rights and Freedoms has forced them into dictating public policy. Thus, in an extraordinary aside in Vriend v. Alberta (1998), the case that added a sexual orientation provision to Alberta’s human rights legislation, Mr. Justice Frank Iacobucci stated: “It seems that hardly a day goes by without some comment or criticism to the effect that, under the Charter, courts are wrongfully usurping the role of the legislatures. I believe this allegation misunderstands what took place and what was intended when our country adopted the Charter in 1981-82. When the Charter was introduced, Canada went, in the words of former Chief Justice Brian Dickson, from a system of parliamentary supremacy to constitutional supremacy. Simply put, each Canadian was given individual rights and freedoms which no government or legislature could take away. However, as rights and freedoms are not absolute, governments and legislatures could justify the qualification or infringement of these constitutional rights under [Section 1 of the Charter].”

Chief Justice Dickson’s allegation that the Charter makes Parliament subservient to the Constitution is plainly wrong. Parliament has always been subject to the Constitution. Throughout our history, the courts have struck down federal legislation that properly belonged within the provinces’ jurisdictions, and vice versa. The difference today is the disposition of judge-politicians to invoke the Constitution in imposing their policy preferences from the bench. Neither the text nor the history of the Charter justifies this judge-made revolution to the Canadian constitutional order.

All legal authorities acknowledge that human rights and freedoms are not absolute. As Judge Iacobucci noted in his Vriend decision, Section 1 subjects the Charter’s rights and freedoms “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Who, in a democracy, should set those reasonable limits — non-elected judges? Restrained, law-upholding jurists, such as former Supreme Court Judge McIntyre, think not. They insist that only under the most extraordinary circumstances should the courts presume to second-guess legislatures in establishing priorities among the Charter’s often conflicting rights and freedoms. Moreover, contrary to the self-serving claims of judge-politicians, Robert Hawkins and Robert Martin, law professors at the University of Western Ontario, insist that legislators had no intention of relinquishing parliamentary powers to the courts: “The Charter was a typically Canadian compromise, a deal struck after a very politicized negotiation in which it was decided that rights would be protected by the Constitution, but in such a way as to respect, to the greatest degree possible, the supremacy of Parliament. There was to be judicial review, but a fair reading of the historical record shows that it was intended to be careful and restrained judicial review.”

REGARDLESS OF WHAT LEGISLATORS INTENDED IN ENACTING THE CHARTER, the Supreme Court of Canada has renounced judicial restraint and now routinely usurps the constitutional authority of the legislative branch of government. In the process, the Supreme Court undermines freedom and the rule of law. In The Road to Serfdom, a classic study of democracy and dictatorship, Friedrich Hayek noted that “Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.” No one can be free in a state ruled by a dictator who flouts the rule of law, even if that dictator masquerades as a judge.

Policy-making judge-politicians have no regard for rules fixed and announced beforehand; instead, they lurch from one inconsistent ruling to another. When judges hand down decisions based on their own convictions of what justice requires in a particular case — regardless of the common law, judicial precedents, and the legislative branch’s intentions in enacting ordinary laws, human rights codes, and even the Charter of Rights and Freedoms — chaos inevitably rules in the courts. At a conference of leading Canadian lawyers convened last April by York University’s Osgoode Hall Law School to mark the Charter’s 16th anniversary, Robert Hubbard, a senior counsel for the federal Department of Justice, lamented, “Every time I go to the Supreme Court of Canada, I haven’t a clue what will happen. The only trend I have seen is no trend. Flipping a coin is not a bad way to proceed: At least you have a 50-per-cent chance of winning.”

Other conference participants were no less scornful. Osgoode Hall law professor Jamie Cameron was baffled by the Supreme Court’s quiet deference to Parliament on some questions of law, while stampeding into other areas not even under consideration before it. “There is a lack of any principle to explain patterns of activism or deference in the past year,” he said, “I can’t make heads nor tails of them from one case to another.”

Thanks to the arbitrary will of Supreme Court judges, the law in Canada is no longer permanent, fixed, and knowable. The law is no longer changeable exclusively by Parliament or a provincial legislature. In essence, the rule of law no longer applies in Canada.

Bloopers from the bench

JUDGES, HOWEVER INTELLIGENT AND WELL EDUCATED THEY MIGHT BE, are not omniscient. Neither are they infallible. On the contrary, judge-politicians who tackle difficult political issues from the bench fumble badly. In Watkins v. Olafson (1989), the Supreme Court’s Judge McLachlin acknowledged: “There are sound reasons supporting . . . judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. . . . Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.”

Despite this fine restatement of the classic arguments for judicial restraint, the Supreme Court of Canada recklessly plunged into a radical reform of the law in R. v. Askov (1990). In this case, it dismissed charges against an accused who had waited 23 months from the time he was committed to trial in Ontario to his actual trail date. In the Supreme Court’s judgment, 23 months constituted an inordinate delay that violated his right “to be tried within a reasonable time,” as guaranteed in Section 11b of the Charter of Rights and Freedoms. Prior to the Charter, the courts would have let the legislative branch of government determine the maximum reasonable time. In the Askov case, the Supreme Court decreed that regardless of the circumstances, a delay “in the range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable.”

The unintended consequences of this sweeping decision have been calamitous. University of Calgary’s Knopff and Morton report: “In Ontario, 43,640 charges were stayed, dismissed, or withdrawn on the basis of Askov by mid-1991. These included at least one charge of manslaughter, 817 ‘extreme assault’ offences (e.g., assault with a weapon, assault on a police officer, or assault causing bodily harm), 290 sexual assault charges, 402 lesser sex offences, and 11,623 charges of impaired driving.”

In August 1991, at an Advanced Legal Studies conference in Cambridge, England, Mr. Justice Peter Cory, the author of the Askov decision, confessed that he was “shocked” by its aftermath. He blamed Crown counsel for failing to tell the Supreme Court how many people the ruling might affect. That’s a lame excuse. Judge Cory should have remembered Judge McLachlin’s words: Crown attorneys have neither the necessary expertise nor the responsibility to advise judges on the implications of the court’s rulings on complex public policy questions.

When members of Parliament or a provincial legislature consider legislation, they can consult at length with experts within the public service; they can commission studies by outside authorities and gather the views of ordinary citizens in extensive public hearings; they can debate the proposed legislation with other elected representatives of the people; they can hammer out a compromise bill that bears little resemblance to the original legislative proposal; and if despite all these precautions the end result proves wanting, they can amend or repeal the statute. Typically, the courts have none of these advantages. More often than not, when judge-politicians legislate on a major policy issue, they act in the dark. They can set arbitrary time limits between committals and trials in a case like Askov in utter ignorance of the mayhem unleashed as a consequence.

THE GREATEST DANGER POSED BY JUDGES MEDDLING IN LEGISLATIVE BUSINESS may be the loss of public confidence in the integrity of the courts. In the past, judges protected the courts’ reputation for political independence and impartiality by rigorously eschewing partisan politics and scrupulously upholding the law. In Democratic Government and Politics, J. A. Corry and J.

E. Hodgetts explained: “A law that is always changing is uncertain and defeats its own purpose. Moreover, if it is admitted that the judges can change the law, people lose confidence in it and in them. Accordingly, judges are sworn to apply the law as they find it. For the best of reasons, and with complete honesty and considerable truth, the judge insists that he does not make law but only interprets it.”

This passage, written in the late 1940s, accurately describes judges’ attitudes prior to the Charter. Today, most judges no longer even pretend to interpret the law as they find it. In a candid interview with a newspaper reporter, Judge Sopinka maintained: “I think it took a little while for it to sink in that when the court is dealing with Charter cases, they’re not dealing with the law as we used to deal with it. Now, when the court is asked to strike down a statute, it is often dealing with the types of decisions that were made previously by elected representatives.”

With judges openly admitting that they change the law, rather than just interpret it, how long will it take for Canadians to lose confidence in the law and in judges and to view judges with the same contempt reserved for virtually every other kind of politician? How long can respect for democracy and the rule of law last in Canada, once most people lose confidence in the courts’ political independence and impartiality? The answers will soon come if the folly of the judge-politicians on the Supreme Court of Canada continues.

The People v. The Supreme Court of Canada

IN THE OPINION OF MOST JUDGES, MOST LAW PROFESSORS, AND MOST LAWYERS, it’s fine for the courts to supplant Parliament’s lawmaking authority. Lord Acton’s dictum — “Power tends to corrupt and absolute power corrupts absolutely” — applies no less to members of the legal profession than to others. If jurists can seize supreme power under color of upholding human rights, those in their sphere of influence will encourage a courtroom coup, while deluding themselves into thinking that their aggrandizement serves the public interest.

Of course, not all lawyers have succumbed to the temptations of unbridled power. Some of the most eloquent protests against judge-politicians have come from leading lawyers such as Iain Benson of the Centre for Renewal in Public Policy; perspicacious law professors such as the University of Western Ontario’s Robert Hawkins, Ian Hunter, and Robert Martin; and eminent jurists such as former Supreme Court Judge McIntyre and Mr. Justice John McClung of the Alberta Court of Appeal. Nonetheless, for the principles of freedom under law to be revived in Canada, it’s evident that the country’s leading politicians will have to take the initiative. What can they do?

Former Supreme Court Mr. Justice Gerard La Forest, echoing former Chief Justice Lyman Duff some 50 years ago, suggests that Parliament evaluate Supreme Court nominees. The Reform party and the Bloc Québécois endorse the idea; the New Democratic Party calls for a more open process for selecting Supreme Court judges; and the Progressive Conservative Party wants parliamentary review of Supreme Court chief justice nominees. Of all the parties in the House of Commons, only the Liberals oppose any form of parliamentary interrogation of Supreme Court nominees. While this stance by the ruling party seems cynical, it is right to resist political inquisitions of judicial nominees. Ratification hearings in the United States Senate show that candidates for judicial posts adeptly conceal their controversial political views. Even if Parliament could ascertain their opinions, judges change their minds on issues of judicial philosophy and public policy. Subjecting judicial nominees to parliamentary hearings would do more harm than good by further embroiling the judiciary in partisan political controversy.

Abolishing the Charter of Rights and Freedoms would effectively curb the tendency of judge-politicians to seize legislative authority. The Charter is an alien and unnecessary United States-style innovation that is incompatible with our traditions of parliamentary democracy. Canada has always had one of the world’s best records for upholding civil liberties. Even a prominent Charter supporter like Professor Peter Hogg of Osgoode Hall concedes that respect for human rights “has very little to do with the contents of Canada’s (or any other country’s) constitutional law. It is to be found in the democratic character of Canada’s political institutions, supported by long traditions of free elections, opposition parties and a free press. Democracy is without doubt the most important safeguard of civil liberties.”

But revoking the Charter won’t happen any time soon — to do so would require a constitutional amendment approved by the House of Commons and at least two-thirds of the provinces having at least 50 per cent of the provinces’ total population. Garnering such widespread support for any constitutional amendment is practically impossible.

Fortunately, there is another, easier means of remedying many of the Charter’s worst effects: invoking the notwithstanding clause. In his reasons for judgment in Vriend, Judge Iacobucci reminded critics of judicial lawmaking that “Section 33 [of the Charter], the notwithstanding clause, establishes that the final word in our constitutional structure is in fact left to the legislature and not the courts.” Specifically, Section 33 enables a legislature to trump many sections of the Charter by creating a statute that can withstand Charter rules for up to five years.

Shortly after the Charter came into effect in April 1982, René Lévesque’s Parti Québécois government adopted legislation that added a notwithstanding clause to every provincial statute then in force in Quebec. The Quebec Liberal government that came to power in 1985 allowed this blanket use of the notwithstanding clause to lapse after the maximum five-year period in 1987 but invoked Section 33 for five specific pieces of provincial legislation. In all but one instance, the action was non-controversial. The exception was the use of the notwithstanding clause to prevent the Supreme Court of Canada from overturning Bill C-78, a law banning English from outdoor commercial signs in Quebec. While most French-speaking Quebeckers endorsed this policy, many English-speaking Canadians bitterly resented it.

The Saskatchewan Legislature also used Section 33 once in a back-to-work law, which proved unnecessary when the Supreme Court of Canada subsequently approved a nearly identical law. In no other case has any other province or the federal Parliament ever invoked Section 33 to shield legislation from judicial interference.

However, as the Supreme Court of Canada becomes ever more embroiled in political controversy, the pressure on legislators of all political stripes to employ Section 33 will intensify. Last fall, the B.C. Court of Appeal touched off an uproar in the province by setting free a teacher, Ian Cocker, who had been convicted of abusing three girls. Following the Askov case, the court held that Cocker’s conviction, which followed a 17-month wait for trial, could not stand. With some 40,000 criminal cases clogging B.C. courts, the NDP Attorney General Ujjal Dosanjh fears that charges against numerous other sex offenders might have to be dropped because of the impossibility of trying all the suspects within the Supreme Court’s arbitrary deadline. In an address in February to a conference on violence against women, he demanded federal legislation under the notwithstanding clause to let the courts deal with sexual and violence offences. Dosanjh said judges ought to realize “we don’t live in an ideal world, where we have resources coming out of our ears to throw at these things.”

In March, Alberta’s Conservative Justice Minister John Havelock announced that the Ralph Klein government would invoke the notwithstanding clause to prevent the courts from awarding more than a legislated maximum of $150,000 to each of the 700 people who had been made infertile under provincial sterilization policies between 1928 and 1972. Invoking the notwithstanding clause for this purpose was a blunder, so profoundly unpopular that Klein and Havelock quickly reversed themselves. Just three weeks later, the Supreme Court handed down its Vriend decision, and in April, Klein decided against invoking the notwithstanding clause here, too. He explained: “We agreed not to use the notwithstanding clause as it pertains to the narrow scope of this decision. All the Supreme Court decision has done is give people the right to go to the human rights commission with complaints on the grounds of sexual orientation.”

Meanwhile, Klein set up a cabinet committee to prevent the Vriend decision from leading to gay marriages, spousal benefits for homosexual couples, or a homosexual curriculum in sex education courses in schools. If, as seems likely, the courts rule otherwise on any of these points, the pressure on Klein to use the notwithstanding clause to shield the Alberta Human Rights Code from judicial amendment will intensify.

On the federal level, Reform Party MP Jason Kenney has denounced the Vriend decision as “an unprecedented attack on democracy and on our constitutional order in what can only be described as an exercise of raw judicial power. In the name of the Charter of Rights and Freedoms, the court ruled that Albertans do not have the right or freedom to govern themselves.” Kenney reminded the House of Commons that, in reaction to the U.S. Supreme Court’s Dred Scott decision, Abraham Lincoln declared: “If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . , the people will have ceased to be their own rulers.” To revive democracy in Alberta, Kenney asked the Klein government to hold a provincial referendum on whether the government should invoke the notwithstanding clause to override the Vriend decision.

Using the notwithstanding clause to reign in Supreme Court judges has its limitations. The clause cannot reverse some of the most disastrous Charter rulings, such as Delgamuukw v. British Columbia. In this 1997 case, the Supreme Court set aside the common law rules on property rights in favor of a vague new court-imposed concept of aboriginal title based on an aboriginal group’s historic use of the land. Because of this decision, no one understands the extent of aboriginal entitlement to property rights, particularly in British Columbia. Barring a Supreme Court reversal of Delgamuukw, it could take years of litigation to sort out the confusion caused by this disruptive ruling. Reform Party leader Preston Manning charged that “The decision has created a potential taxpayer liability of literally tens of billions of dollars. These impacts alone are big enough to literally cripple the British Columbia economy.”

Manning is not alone in his dismay. The Delgamuukw decision has provoked widespread alarm in British Columbia. Mel Smith, a former constitutional adviser to four B.C. governments, has denounced this judgment “as one of the most audacious acts of judicial engineering in our history.” Even B.C. Aboriginal Affairs Minister Dale Lovick concedes that uncertainty over aboriginal title to resource properties will make investors nervous. It’s obvious, he says, that “they’re not going to put money in some place where they think, well, one year later we’re going to be in court and have a lawsuit. So, I’m prepared to acknowledge that there is inevitably going to be some cost built in. I think, however, it is not nearly as large as some people would suggest.”

Perhaps Lovick is right, but maybe he is wrong. Suppose economic developments actually bear out Smith’s assertion that Delgamuukw has plunged B.C. into “a state of crisis unlike anything it has faced in its 127 years within the Canadian Confederation.”

What could the legislature of British Columbia or the Parliament of Canada do to eliminate the uncertainty over property rights in B.C.? Precious little, because the Delgamuukw decision is based on the Charter’s aboriginal rights provisions, which are not subject to the notwithstanding clause. Short of enacting a constitutional amendment, neither Parliament nor the

B. C. Legislature can change or revoke the new law. Once again, Canadians are stuck with the potentially devastating economic and social consequences of the Supreme Court’s audacious encroachment on legislative authority.

To reclaim our democracy, legislatures should reassert their supremacy as lawmakers by doing the next best thing to abolishing the Charter — invoking the notwithstanding clause whenever they can. Wherever there is any doubt about popular support for the use of the notwithstanding clause, legislatures should seek mandates from voters in referenda. While this procedure would be cumbersome and expensive, it need not be used often — after two or three humiliating reversals in the ultimate court of appeal — the people speaking in a referendum — even our robed dictators on the Supreme Court would get the message, discouraging more reckless decisions like Delgamuukw.

No one can deny that legislatures have violated minority rights in the past and are bound to make similar mistakes in the future. Surrendering the state’s supreme power to non-elected judges will only make matters worse. The worldwide historical record proves that popular democracy best safeguards against gross violations of human rights and fundamental freedoms by either arrogant judges or abusive politicians. Lincoln was surely right to ask, “Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world?”

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Letters

, MP, Calgary-Nose Hill, responds: November 18, 1998 , Scarborough, Ontario, responds: November 20, 1998 , Kitchener, Ontario, responds: December 7, 1998 , Wasaga Beach, Ontario, responds: December 9, 1998

  1. Diane Ablonczy
  2. Liam Mitchell
  3. Paul Bobier
  4. Tim Morgan

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Diane Ablonczy, MP, Calgary-Nose Hill, responds: November 18, 1998

I commend you on your excellent article. Not only have you illustrated the issue well, but your examination of the democratic implications and possible remedies provides a good basis for understanding and addressing the ills flowing from judicial activism.

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Liam Mitchell, Scarborough, Ontario, responds: November 20, 1998

Mr. Leishman argues that judicial review of the executive and legislative branches of government turns members of the Supreme Court into dictators. I strongly disagree.

Laws cannot be viewed in absolute terms. Frequently, situations arise that were not foreseen by those who wrote the laws. Therefore, exceptions must be made. To facilitate this need, we appoint men and women to look beyond the letter of the law and at the intentions which lie behind them. It is for this reason judges exist. Therefore, for Mr. Leishman to criticize judges for doing just this is to suggest the abolition of the profession.

At the apex of the Canadian legal system is the Constitution. Being the supreme law of our nation, all other acts that come forth must conform to its principles. Like most things, such sentiment is ineffective unless enforced. Therefore judges serve to enforce the Constitution, something that even our beloved politicians in Ottawa are not above ignoring. It is for that reason that judges must have the power to review legislation. It is not the court itself that takes priority, but the Constitution, which the court is only a mere tool of.

Mr. Leishman also presented a poor assortment of court cases to support his argument. First, to begin with a ruling by the United States Supreme Court in 1857 does little to explain the circumstances in Canada in the late 1990s. Second, Mr. Leishman completely misrepresented the Schachter decision of 1990. The Supreme Court did not assert “that the Charter has empowered the courts to read new provisions into a statute law.” Instead, it fixed a long-standing wrong within a piece of legislation as its constitutional powers allow it to.

Instead of fearing judicial dictators, Canadians should take solace in the knowledge that they have a judiciary that will defend their constitutional rights. Furthermore, it is the heart of any democracy that the constitution takes precedence over the whims of politicians, thus ensuring protection from tyranny.

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Paul Bobier, Kitchener, Ontario, responds: December 7, 1998

This article is a nostalgic promotion of parliaments and provincial legislatures as defenders of personal rights and freedoms. For the most part, however, those days never existed for Canadians. It was the Canadian Charter of Rights and Freedoms that gave individuals the right to challenge government laws in the courts, and forced all levels of government to “charter-proof” their policies. Perhaps Mr. Leishman has never had to challenge provincial or federal legislation that failed to address individual rights and freedoms. Unfortunately, many others have had to do so.

Those who believe court rulings on the charter are “undemocratic” overestimate the legislative branch of government’s democratic character. Consider, for example, the many issues individual voters care about, and how few of them become election issues. In an era where party leaders and their advisors have the most influence on party platforms, and media images influence voter decisions, the public’s ability to set an election’s agenda is limited. In tough economic times, it becomes easier for politicians to gain popularity by “blaming scapegoats” for social problems, instead of advocating fairness or individual freedoms.

Canada’s judges, especially those appointed to supreme courts, have knowledge and education superior to politicians, and they don’t appeal to voter resentment against others, in order to keep their positions. The result is a country more civilized than if politicians ruled without legal restraints. Individuals shouldn’t take the charter’s constitutional protections for granted. Mr. Leishman stated that Canada’s Supreme Court has usurped the constitutional authority of legislative government since our constitution was adopted in 1982. What would be any political party’s upcoming election prospects if its leader promised to remove the Charter of Rights and Freedoms from our constitution? The public would vote against such a policy.

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Tim Morgan, Wasaga Beach, Ontario, responds: December 9, 1998

I just read your excellent article on the Supreme Court. I wish every elected official in Canada could and would read it. We indeed live in an oligarchy of nine. More and more, people do not mobilize public support for justice and good. Instead, they appear as humble supplicants before the “chiefs” of the 30 million Canadian clan. They perform a few expensive and arcane rituals, appeal to their generosity and self pride, then hope for the best. Each “justice” makes a decision and then has their multi-million dollar staff try to find as many good reasons for it as they can. It’s bizarre that this is our form of government as we enter the third millennium.

Posted in Political reforms, Regulation | Leave a comment

Book reviews – No enemies to the left

The Next City
The Next City
September 21, 1998

Reflections of a Siamese Twin: Canada at the End of the Twentieth Century by John Ralston Saul (Viking, 1997. 546 pages) $36.99

THE ORIGINAL SIAMESE TWINS OF JOHN RALSTON SAUL’S TITLE ARE Louis-Hyppolyte Lafontaine and Robert Baldwin, whose binding handshake in 1842 signified, in Baldwin’s words, a “union of hearts and free born men.” The French and English they represented and Canada’s native people formed a complex triangle that survives today. But complexity calls for balance, and here Saul sees a growing rift between the mythology of Canada as an incomplete experiment subject to change through evolution and the reality of Canada as “corporatist, interest based, antidemocratic, determinist, and thus passive.” He says we’ve been dominated by countries — Britain and France — that “incarnate the complete experiment.”

Britain, a completed experiment? The British tradition that Canada adhered to until 1982 is rooted in the citizens’ inherent freedom and responsibility, a sovereign Parliament, and an evolutionary common law that keeps pace with the times. The French tradition, by contrast, is state directed — the citizens’ rights are defined, conferred, and may be withdrawn by the state. As Alain Peyrefitte wrote in The Trouble with France: “We leave it to the state to care for our happiness — and reproach it for not making us happy enough. We beg from it what we are unwilling to obtain for ourselves — and snarl at it for not giving it to us, or not giving us enough of it, or fast enough.” That was published in 1981, a fair description of public life in Canada today.

Saul makes much of victimization, with corporatism being his victimizer. He finds “it difficult to imagine how democracy can prosper, so long as corporations maintain their artificial status as persons.” In the past decade, our elites have “embraced the rise of corporatism,” he says, resulting in “a false conformity to a false universal reality.” But Saul fails to recognize that corporatism does not stand alone. Industry must join two other powerful forces — labor unions and the state — for an economy to suffer monopolistic effects.

Saul fails to distinguish between the government that serves as referee between our conflicting interests and the state that spoils the game by inserting itself as player. He doesn’t explain that so long as the original division of powers prevailed in Canada, fiscal rectitude prevailed also. Provinces borrowed on their sole credit; the federal government’s ability to borrow on the public credit of Canada was constrained by the need to preserve fiscal integrity.

That prudent habit was overthrown by events in Lester Pearson’s government. Private sector unions struck successfully for wage parity with U.S. workers; civil servants, who were given the right to strike, blackmailed governments for wage parity with the private sector, and the resulting leapfrogging destroyed the wage gap that had compensated for Canada’s inherently lower productivity. In the same period, Ottawa imposed a British-style national health scheme on the provinces by offering to share the cost fifty-fifty. Through this device, the constitutional restriction on provincial governments to borrowing on their sole credit was circumvented by Ottawa’s borrowing for them on the public credit of Canada. This set the course for insolvency.

In 1969, the last year of a balanced federal budget, the federal debt was about $20 billion. In 1984, when Pierre Trudeau resigned rather than face the electorate, the deficit had ballooned to $38 billion — 54 per cent of that year’s revenue — and the debt to $200 billion. By 1991, although the succeeding Brian Mulroney governments cut program spending from an annual average growth of 13.8 per cent to 3.7 per cent, an average prime rate of 10.5 per cent had compounded Trudeau’s debt to $400 billion. Not long ago, when the Canadian Institute of Actuaries studied unfunded liabilities of our health and social programs, it found a $1.2-trillion deficit, half of it due to “free” health care.

No doubt these figures would have made dull reading when set against Saul’s excursions into the works of poets and dramatists — as he says, Canada’s principal creative decisions were not driven by economics — but their absence makes the book unconvincing. Saul puts proper store upon moderation and rightly applauds Canadians’ antipathy toward state violence, but when he confronts “our public financial crisis,” moderation deserts him. He calls the efforts by Ontario and Alberta Premiers Mike Harris and Ralph Klein to restore fiscal health “gross slashing.” They, together with Quebec Finance Minister Bernard Landry, are “buffoons.”

Saul deplores “the traditional anti-intellectualism of managerial circles” together with the leadership roles given to “business managers who tend to have a narrow view of their own self-interest and no view at all of the public good.” It escapes him that every business manager or proprietor perpetually struggles to remain solvent. Of course this is selfish, as is seeking protection from all perils and dangers of the night. Insolvency of a person or a firm is a tragic event; of a nation, it is a disaster.

The public good. Anti-intellectualism. Here is the nub of Saul’s take on, and hostility to, corporatism. That intellectuals tend to share a certain view of the public good is a matter of record. For them, the public good consists in how they think the public should be governed. In his book Intellectuals, historian Paul Johnson noted that Mussolini, Hitler, and Stalin had legions of intellectual admirers, “as did such post-war men of violence as Castro, Nasser and Mao Tse-tung,” and that a dozen people picked at random on the street were “at least as likely to offer sensible views on moral and political matters as a cross-section of the intelligentsia.”

Pierre Trudeau, whom Saul praises for reviving “the intellectual, even literary and creative nature of the early Canadian leadership” and for his “intellectually direct public manner,” draws no criticism for changing Canada’s system of government to the Quebec model of legislated rights and entitlements, a model that is federalism’s political opposite and that incorporates his Charter of Rights and Freedoms in the supreme law of Canada. Any law inconsistent with the Charter’s provisions is of no force or effect.

Trudeau called his stratagem “almost a putsch, a coup de force” (Robert Stanfield called it a coup d’état) and boasted afterward that “On the whole the Constitution Act largely enshrined the values I had been advocating since I wrote my first article in Cité libre in 1950.” That was just two years after he left the London School of Economics and personal tutorship by “the most stimulating and powerful influence” he had encountered, namely that of Professor Harold Laski, who wrote: “There cannot, in a word, be democracy unless there is socialism.” Canada’s incomplete experiment is no longer subject to change through evolution; it is to be riveted forever in the values that Trudeau committed to memory in 1950.

With all due respect to Saul, the nation’s wealth springs from the creative efforts of individual Canadians; government’s duty is to ensure that they receive the results of their efforts, after taking a just proportion for its own activity. The left’s idea that government can manage the economy and equalize outcomes through the redistribution of incomes is the prime contributor to Canada’s fiscal disarray. In his book The Ethics of Redistribution, Bertrand de Jouvenel wrote that “redistribution is in effect far less a redistribution of free income from the richer to the poorer than a redistribution of power from the individual to the State.”

Canada’s 30-year conversion into an elitist, paternalistic state is now incorporated in Trudeau’s Charter. Although Saul cites Vaclav Havel’s distress at his inability in 1993 to stop the “nationalists and neo-conservatives” from dividing Czechs and Slovaks, he fails to mention another of Havel’s remarks: “What we have to fear is the emergence of an authoritarian government. . . . A great many people would like to have, at one and the same time, freedom and all the material security given to them by a paternalistic state. The two objectives are completely incompatible.”

The deadening effect of the state’s intrusions in the private lives of the citizens leads it to intrude again. Governments borrow, and debt grows. To pay the cost of borrowing, and to pay the cost of increased material benefits, governments seek more revenues. Taxes rise, and the cycle continues until insolvency threatens, forcing governments to economize. Then comes suffering for society’s most vulnerable, those on the lowest rungs of the income ladder or on welfare. Many of them have been lured into dependence upon the state’s subsidies and have lost the will to work, the will to assume responsibility for their own welfare.

Last year, Ottawa paid $45 billion — 32 per cent of revenue — for interest on the federal debt; add the interest on provincial debt, and about 40 cents of every tax dollar goes to interest. What good accrues to the public when two-fifths of the taxes brings nothing in return? Saul does not ask that question. His cry at the end of the book is for “a constant rebalancing act . . . centred on the redistribution of both money and services.”

Response to Kenneth McDonald’s review

Peter Ryan, Halifax, responds: November 8, 1998

I wish to agree with your review of John Ralston Saul’s Reflections of a Siamese Twin: Canada at the End of the Twentieth Century. Unlike you, I did not have the time nor the incentive to complete reading the book. I had heard enough comments from Saul during his book tour to tackle his work. However, the more I read, the more disturbed I became. Initially it was his language, notably his use of national when describing the federal government. The mind-set required for national is for the most part at odds with the concept of a federation, a position I thought he was espousing.

Subsequently, his inability to escape late-nineteenth, early-twentieth-century economic views, hobbles his vision of how Canada can strengthen itself and its influence in the coming century. Comments that our immigration policies are gradually inching toward rich immigrants are inflammatory, as the 1998 plan calls for this segment to be only 10 per cent of the total.

Finally, when Saul said on page 133, that Canada is essentially a poor country, presumably with other poor nations such as Japan, Britain, Italy, maybe Singapore, Holland, and Sweden, I knew he had crossed the line where definitions are changed to support arguments.

I am troubled by a number of commentators, suggesting that Saul is one of Canada’s leading thinkers, for I witnessed more rigor in his polemics than in his scholarship.

Your review was appreciated.

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