Water submetering: a regulatory overview

National Multi Housing Council (NMHC)

January 1/1997
Eileen Lee

Prior to undertaking a submetering project, multifamily property owners should review applicable state regulations which could result in their taking on additional compliance responsibilities and liabilities.

Overview:

Under the “Safe Drinking Water Act” (SDWA; P.L. 104-182), as originally enacted in 1974, any business which sells water or bills separately for water it provides, falls under the definition of a public water system (PWS) or consecutive water system or supplier, regardless of whether it does so for profit, and is subject to the Act.

Currently, EPA gives states flexibility in the determination of whether or not a state considers apartment communities to be consecutive water systems. In some states, property owners who submeter water and pass the cost of the water on to their residents may be construed as “selling” water and thus are considered as “water suppliers” subject to regulation under SDWA. Prior to undertaking a submetering project, multifamily property owners should review applicable state regulations which could result in their taking on additional compliance responsibilities and liabilities.

In March 1997, NMHC/NAA met with the U.S. Environmental Protection Agency (EPA) to discuss the apparent contradictions between EPA’s policy statement on submetering/allocation provided to the House Commerce Committee during the 1996 SDWA reauthorization hearings and actions initiated by several states under the authority delegated to them by the EPA under the SDWA.

One year later, EPA’s Office of Water issued a memorandum to its 10 regional offices, directing that this information be shared with the states within each region. The memorandum states “(I)f an apartment building or similar residential community that submeters wants to avoid PWS classification, it would either need to remove the complex’s master meter and allow the local water utility to bill residents directly or include water usage as part of the monthly rent or fees.” The memorandum goes on to say that “an apartment complex that submeters and is considered a PWS . . . may be afforded certain monitoring modifications if it is considered a “consecutive” water system. . . . States have the flexibility to modify the monitoring requirements to the extent that the interconnection of the systems justifies treating them as a single system. . . . Because we support the practice of submetering to encourage water conservation and to provide an equitable method of distributing costs, we believe that it is appropriate for States to use this flexibility consistent with their assessment of the need for these “consecutive” systems to conduct additional monitoring to protect the public health of their customers.”

Submetering as a tool to encourage water conservation was not envisioned at the time of the passage of the original SDWA. In light of this, the state of Florida has defined the term “sale” so that a property owner who submeters the water distributed on his property and subsequently receives payment for this service is not considered to have “sold” water. This regulatory definition is a useful model for other states considering revising regulations to facilitate the adoption of water submetering by property owners.

In some areas, water submetering is actually mandatory in new construction. Several states have required that multifamily property owners who submeter water be treated as a utility and comply with additional regulatory and financial demands.

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What would happen if we let gated communities thrive?

Ronald Maheu and James Lemon
The Next City
December 23, 1996
Ronald Maheu

We’d return to our roots. For generations, cities great and small have used gates to identify specific neighborhoods and to establish a sense of place. To pick Toronto examples, three older gated areas — Palmerston Avenue, Fairview Boulevard and Wychwood Park — are city jewels that command high real estate values.

We’d let residents, not bureaucrats, shape their neighborhoods. Different strokes for different folks. Gated communities cater to those individuals who prefer security to diversity, providing residents with housing that, through covenants and other restrictions, is more consistent, without ugly additions, unsightly fencing, “naturalized” gardens or houses painted in unconventional colors. Gated communities also provide residents with a sense of security and well-being, in that their homes are being looked after while they are away. The village aspect of these developments generates a strong sense of community with residents whose common bonds make them more likely to interact with one another. Critics call gated communities a disquieting sign of our changing times that we should somehow discourage. Many municipalities, however, stay out of the business of social engineering, allowing the residents to decide on their preferred form of housing.

Nothing mean-spirited or defensive about them. Gated communities have raised the spectre of armed camps of suburban residents barricading themselves against the onslaught of the city. The truth of the matter is much more mundane: generally a group of “empty nesters” who share similar attributes and attitudes with their neighbors, comforted by the fact that they have a community mini-golf facility within walking distance, and that all the houses are painted beige.

Stable real estate values promote stable communities. With our aging population increasingly cherishing values like peace of mind, the developers of these gated communities will find little difficulty finding buyers. Since the consistency of style makes the community’s future more predictable, property values tend to be maintained.

James Lemon

Society would be less egalitarian. Gated, often walled, and even guarded communities supposedly offer a greater sense of security and, hence, serenity. More likely, they appeal to a yearning for higher status in the midst of what has been a relatively egalitarian society. America has always been more competitive, more dangerous, more exclusive, more status driven than Canada. Why follow the American way?

Our social fabric would be frayed. Gated communities spring from a 20th-century American trend to fragment urban areas into small municipalities, all with the intent to exclude the unwanted. Apparently, municipal fragmentation has been inadequate, leading to gated communities. In Canada we had it right — municipalities are inclusive, not exclusive. These kinds of neighborhoods undercut the municipal and, hence, the social fabric.

Family life would suffer. Not only do they tear society, they are internally prone to self-destruct. In Harper’s (November 1992), David Guterson described a gated and guarded community on the margins of Las Vegas, the quintessential city of our age. There he found that, despite corporate smoothness and sweet talk, tensions mounted within the community and within families. When a bunch of fearful, even paranoid people act out in this way, social relations implode. Like ancient Rome, decay from within was more destructive than outside enemy attacks.

Our economy would suffer. Gated communities are a sign of the times. In the past, during periods of excessive speculation followed by depression, a similar intense preoccupation with status and exclusion flourished. The late 19th century, the Gilded Age of conspicuous consumption, promoted the survival of the fittest — social Darwinism. From the extravagant 1920s to the meanness of the Great Depression, a similar tendency played out. In the last 20 years, we’ve moved away from a more cooperative way of living, which had stronger economic growth, to competitive madness followed by yet another economic weakening.

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Planners from hell – New Jersey chokes on auto emissions regulations

The Next City
December 21, 1996

TO MEET THE NATIONAL 1990 CLEAN AIR ACT, New Jersey’s legislature has passed an auto emissions law that is not only inefficient and costly, but also could lead to the state seizure of vehicles from privately owned driveways.

To become registered, a New Jersey vehicle must pass a yearly Enhanced Inspection and Maintenance chassis dynamometer test — a statewide examination that charges motorists an annual $45.5 million to put their cars on a treadmill and measure their emissions. If an owner fails to make necessary repairs (typically costing $100 to $700), the state will not renew the vehicle’s registration. Since parking an unregistered vehicle in a driveway, even if it is privately owned, is illegal in most New Jersey counties, the state police can ticket, impound and ultimately confiscate any car that does not pass the emissions test, all without compensation. And under New Jersey law, the offending owner could even spend time in jail.

Critics of the New Jersey regulation worry that poor people, without the cash to fix up their cars, wouldn’t be able to keep them in their own driveway until they save up for the repair bill. They also complain that the emissions law virtually criminalizes collecting older cars. Although it exempts cars over 25 years old that are “a restricted issue make or model [manufactured] in sufficiently limited quantity . . . [or one] that is generally recognized” as such, the law lets Division of Motor Vehicles bureaucrats define what is a classic car. Vintage Mustangs and Camaros, which were produced in the unrestricted millions, may be ineligible for exemption and liable to confiscation and scrappage.

Quite apart from the daunting possibility of having their cars confiscated, residents of numerous jurisdictions throughout the United States requiring emissions tests also face the hassle and waste involved in inspecting every single car’s emissions. A team of atmospheric researchers who tested 60,000 cars in California in the summer of 1991 found that programs like New Jersey’s that treat all vehicles alike are costly compared to ones that target gross offenders. The scientists found that only seven per cent of vehicles produced 50 per cent of the on-road carbon monoxide emissions while 10 per cent of the vehicles accounted for 50 per cent of the hydrocarbon emissions. In their study, the cleanest 30,000 vehicles contributed less than 10 per cent of the carbon monoxide and hydrocarbons. The scientists also found that a vehicle’s age is not a good predictor of the level of emissions because emissions vary more within a model year (due to tampering or poor maintenance) than among the averages of various model years. The most efficient and cost-effective way of reducing vehicle exhaust, they concluded, is through a program, such as on-road remote sensing, which identifies the few cars that are creating the most emissions.

New Jersey knows about the more cost-effective remote sensing devices — it has even experimented with their use. But its Department of Environmental Protection insists they are no substitute for testing every vehicle.

Amy Buskirk

Toronto wants to make its downtown safe for multinationals

AFTER DECADES OF HELTER-SKELTER development policies that helped transform downtown Yonge Street, one of Canada’s most valuable commercial areas, into a low-rent strip complete with sex shops, fast-food joints and dollar stores, Toronto’s planners and politicians have come up with a new set of policies designed to clean up the street and make it suitable for chichi establishments and American superstores alike. Yonge Street in the downtown core seems poised for a revival, and city hall doesn’t want its undesirable retailers to ruin it.

Deeming sidewalk displays unseemly on that particular stretch of street — a lively pedestrian area of mostly downscale establishments — the city designated it a “community improvement area” and outlawed the merchants’ zealous use of the sidewalks outside their stores, knowing it would undermine their business prospects. But another plan — the Commercial Facade Improvement Grant/Loan Program — may do as much to put struggling businesses out of their misery by financing their more profitable competitors. Under this plan, the city can provide up to $50,000 to some of the better-off merchants in the area to help them give their buildings a face-lift.

Sam the Record Man, a chain of music and video stores, will pocket some of the city’s cash to refurbish the twin neon discs at its flagship Yonge Street store, long a Toronto landmark, while the Superior Restaurant, a swanky new eatery praised for being a badly needed break from Yonge Street’s tackiness, received help in completing its renovation.

But to those determined to rid the area of run-down retailers, the beauty behind the city’s façade plan is in shutting out the neediest merchants: unless a retailer can match the city’s contribution, it is doomed to remain dowdy while its spruced-up rivals steal its business. So as Sam the Record Man and Superior Restaurant prosper, small record stores and restaurants caught in the district’s recession may bite the dust and be replaced by retailers — particularly prestigious foreign showcases that the city has been wooing, such as Planet Hollywood and Universal Studios — that will do the city proud.

In case undesirable merchants somehow manage to hang on despite the nudges designed to send them over the edge, the city has acquired another weapon for its arsenal: the power of expropriation. In courting large U.S. retailers, the city has been promising them locations now occupied by others. Because Yonge Street properties have less frontage — often just 20 feet —than U.S.-style retailing requires, the city has decided to seize the lands of any property owners who don’t cooperate with the foreigners’ plans.

“That’s the problem with Yonge Street. The land ownership is so fragmented,” city councillor Kyle Rae told the Globe and Mail after returning from Los Angeles with dreams of creating a Santa Monica Boulevard North. “The new kind of development is impossible here. The fragmentation of tenure is so severe, we have to intervene.”

AT THE SAME TIME THAT THE PLANNERS promote the area as a California clone, they have become intent on protecting the district’s historic façades and distinctive character. Ironically, the planners weren’t prodded into action by conservation authorities or historical boards, but by the Eaton Centre, the city’s best known urban mall, which, to make room for itself two decades ago, demolished several historic city blocks in the heart of what’s become the improvement area. The Eaton Centre’s new-found concern for the area’s architecture — and the merchants tending it —led it to locate a consulting group, and to ask the city to share the cost of a study that would “demonstrate to the various property owners . . . the potential face-lifts that could be achieved.” The city then signed onto the project. And through this process, the Eaton Centre was able to help set architectural standards for the area.

The consulting firm hired for the task, CORE Architects, decided to “introduce order to the presently overpowering hodgepodge of signage” by prescribing in great detail what merchants should and should not be permitted to do. “Backlit fluorescent acrylic box signs of any type or vinyl awning signage” are out, it determined, while “sign fascia [that terminates] at least 0.45 metres below the underside of windows on any floor above retail level” are in. Some merchants, CORE felt, had exercised poor judgement in the color they chose for their buildings and signs. The Great Canadian Leather Company is but one of the shops that seemed to have it all wrong. CORE suggested that its large-scale façade sign be removed in favor of a small “copper sign band terminating at demising columns with combination stamped out and stainless steel pin mounted copy with indirect lighting from above.” Spandrel windows with stained wood surrounds would be nice, too, CORE felt, also recommending that the store should build up its wood header and sill with a new application of exterior stucco finish. Identifying a detail in which merchants had been remiss, CORE advised them to carefully consider the color that they choose for their signs.

In the middle of the community improvement area — itself all of five blocks long — lies tiny Dundas Square. For the merchants south of Dundas Square, like Great Canadian Leather, the consultants determined that the community’s improvement required “sign reduction.” North of Dundas Square, the community’s improvement, according to CORE, required bigger and better signs, to “encourage the existing trend of large visually interesting signs similar to Pizza Pizza, Sam the Record Man and Future Shop.” Had it been located two blocks south, Pizza Pizza’s gargantuan sign, with its one-story high telephone number, would have been a mistake. As it is, the consultants praise Pizza Pizza for forming part of the city’s urban fabric.

But big signs are out everywhere for the planners where historical buildings are concerned. CORE’s guidelines prohibit covering up any interesting historical details, hamstringing merchants with sign rules that will limit their ability to compete with merchants in non-historical buildings. The result: merchants required to conform to CORE-type regulations will avoid historical buildings, making them less valuable retail space, leading them to fetch lower rents. The area’s historical buildings will then become likelier to fall into disrepair and be expropriated down the road by a future city council with a new generation of development policies, perhaps designed to protect the area’s then-unique California character.

Lawrence Solomon

Plumbing rules prime the pump for American toilet makers

WATER CONSERVATION REGULATIONS that require toilets in new homes to use no more than 1.6 gallons per flush have helped Americans recognize what they’ve been missing until now: diversity in toilet bowls.

Flush with success, toilet makers like Eljer now boast 50 styles in prices ranging from $105 to $1,100 and up.

Saving water need not be costly, but often is. Extra pressure can compensate for the water the bowl needs to do its dirty work, although some consumers complain of noise. So commode companies often rely more on gravity to do the job, manufacturing taller, narrower tanks. Consumers will be relieved to know that low-profile models — using rim jets to spray waste away — are also available.

Low-flow toilets can seem to take forever to get the job done. For a quick yet quiet flush, Kohler Co. suggests a $950 model that uses a 0.2 horsepower electric motor.

The new world of toilets is a boon to industry and upscale buyers, but represents a costly course of action in protecting society’s water supplies in areas where they’re scarce. Where water and sewage services have been priced high to reflect shortages, consumers had voluntarily switched to low-volume systems. And where water is cheap and plentiful, consumers now pay the price of complying with needless regulation.

Lawrence Solomon

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Discussion Group, Our benign dictatorship

Stephen Harper and Tom Flanagan
The Next City
December 21, 1996

Discussion

Canadians will be going to the polls this year, with the Liberals seemingly headed for a second majority government. Most political pundits credit the use of clever strategies by the Liberals, saying they’ve moved to the right to rob Reform of the deficit issue while keeping their image as guardians of medicare and defenders of the social safety net.

Whether the Liberal strategy succeeds in the next federal election will be revealed soon enough. But those who view a second Liberal majority as a momentary opportunistic success, or as the tit for the tat of two consecutive Mulroney governments, profoundly misunderstand history. The Liberals and the Conservatives don’t alternate in their control of the Canadian Parliament. For a hundred years since 1896, Liberal government has been the rule, their opposition habitually weak, and alternative governments short-lived.

Although we like to think of ourselves as living in a mature democracy, we live, instead, in something little better than a benign dictatorship, not under a strict one-party rule, but under a one-party-plus system beset by the factionalism, regionalism and cronyism that accompany any such system. Our parliamentary government creates a concentrated power structure out of step with other aspects of society. For Canadian democracy to mature, Canadian citizens must face these facts, as citizens in other countries have, and update our political structures to reflect the diverse political aspirations of our diverse communities.

Winds of Change

CONSERVATIVES TRIED AN UPDATE. IN MAY 1996, the Winds of Change conference organized by columnists David Frum and Ezra Levant took place in Calgary. It assembled an array of conservative activists, journalists, politicians and opinion leaders from across the country, many of whom are now creating a more permanent organization of conservative thinkers. But in its prime objective — to bring Reform and the federal Progressive Conservatives together — it had no impact whatsoever.

With the Bloc Québécois attracting former PC voters in Quebec, and the PCs and the Reform party elsewhere dividing the conservative vote, the Liberal party appears headed for a long period of hegemony in Ottawa. It commands the support of over half of Canadian voters in public opinion surveys, while four opposition parties scrap over the rest.

Outside Parliament, however, Canadian conservatism is at its strongest level in many years. The oldest conservative institutions — the National Citizens’ Coalition, the Fraser Institute, Alberta Report and its sister magazines — have been joined by new research institutes, mass organizations and publishing houses. The Donner Canadian Foundation, with real money to spend, has accelerated the growth of a conservative intellectual network.

In the media, conservative columnists are multiplying “like zebra mussels,” as Toronto Star columnist Richard Gwyn put it. Conrad Black has recently assumed control of the Southam chain of newspapers, including most of Canada’s large metropolitan dailies. Those papers, monolithically liberal and feminist under previous management, are quickly becoming more pluralistic, with a strong representation of conservative voices.

Public policy reflects the growing conservatism of public opinion. Canada is not the same country it was 10 years ago. Almost everyone in public life now takes balanced budgets, tax reduction, free trade, privatization of public enterprise and targeting of social welfare programs for granted, while critics on the left bemoan their loss of influence.

Not very long ago, the age of political conservatism also seemed to have dawned in Canada. In 1984, the Progressive Conservative party, led by Brian Mulroney, won over disparate groups, winning the election overwhelmingly — 50 per cent of the popular vote and 75 per cent of the seats in the House of Commons. Mulroney also won a reduced, but still solid, majority in 1988. His breakthrough among Quebec’s francophone voters, which had eluded the Progressive Conservative party for most of this century, underlay these victories. It took 58 of 75 Quebec seats in 1984 and 63 in 1988, compared with only one in 1980.

But the grand coalition fell apart as quickly as it was formed. Across a wide range of issues, Mulroney disillusioned his voters. In the West, the Reform party attracted the allegiance of conservative voters, once the most loyal of PC supporters. In Quebec, the new Bloc Québécois captured the majority of the francophone vote. In the 1993 federal election, Reform won 52 seats, the Bloc 54 and the PCs only 2. The huge disparity in seats stemmed from the first-past-the-post electoral system; the PCs got 16 per cent of the popular vote, as compared with 14 per cent for the Bloc and 19 per cent for Reform.

The Mulroney coalition had shattered into its three constituent parts: a populist and strongly conservative element, most numerous in Alberta and British Columbia but also present in Saskatchewan and Manitoba as well as rural and suburban Ontario; a francophone nationalist element in Quebec; and a centrist, Tory element scattered across the country, particularly in high-income urban areas and in some parts of Atlantic Canada. The differences among these elements are illustrated nearby.

REFORM SUPPORTER, IN ADDITION TO BEING THE CONSERVATIVE on economic and social matters, have a populist mistrust of government and view Quebec’s demands negatively. Bloc supporters are all over the map on social and economic issues. Like Reformers, they mistrust government, but their devotion to Quebec really sets them apart. PC voters more resemble the Liberals than Reform on social and cultural issues; in fact, they are often to the left of the Liberals. However, they are closer to Reform on economic and fiscal issues.

Little has changed since 1993. In a poll last September, Reform dipped to 12 per cent while the Progressive Conservatives rose to their post-election high of 17 per cent, but even that improvement (since wiped out) would have implied no great recovery. Because their votes are geographically scattered, PCs could get 17 per cent of the national vote and elect only a handful of MPs, perhaps none at all. At these levels of popular support, Reform would also fare poorly; but because its support is concentrated in Alberta and British Columbia, Reform would elect enough members to remain a recognized party in the House of Commons. Meanwhile, Bloc Québécois support among francophone voters continues at more or less the same level. It could lose a few contests to the Liberals in the next election but will probably hold onto the majority of Quebec seats. The three fragments of the Mulroney coalition will stay in the game for the foreseeable future. Reform has enough of a territorial base to elect members. The Bloc will thrive as long as the issue of separation polarizes Quebec politics. And the Progressive Conservatives have enough money, activists and covert support from provincial Conservative parties to ensure that they will not quickly fade away.

Forestalling a second Liberal century

CANADA MAY WELL REMAIN SOMETHING NEAR A BENIGN DICTATORSHIP. In 1995, one of us (Harper) warned that Canada might enter a one-party-plus phase, with the Liberals the only broadly based party, and the other parties representing more narrow regional, ethnic or ideological constituencies. Beneath the textbook label of having a two-party-plus system of government (the Liberals and the PCs, plus the NDP), Canada has long been moving away from democracy.

A two-party alignment of Conservatives and Liberals emerged quickly after Confederation in 1867 but began to break up in the watershed election of 1911. In that year, the Quebec journalist Henri Bourassa mobilized a new francophone voting bloc — autonomists who supported Robert Borden’s Conservative government, but only conditionally. Borden lost the francophone vote entirely in the wartime election of 1917, yet still won handsomely by forming an alliance — the Union government — with the many Liberals who supported wartime conscription. That alliance proved temporary, and in 1921 many of those Liberals, who, unlike the Conservatives, advocated free trade with the United States, went on to found the short-lived Progressive party. Ever since 1921, Canada has had a multiparty system. Parties have come and gone, but not these five components to the system:

A Liberal party with a national coalition capable of governing. At times in the 1970s and 1980s the Liberals were virtually shut out of the West, as they are today in francophone Quebec, but they have usually maintained appreciable strength in all parts of the country. In winning 14 of 22 elections since 1921, they have never been out of office for more than nine years.

A Conservative or Progressive Conservative party claiming a national base, but in fact coming to power only in exceptional circumstances and then governing only for short periods of time. The Conservatives won in 1930 in the depths of the Depression but were thrown out after one term. Over two decades later, in 1957, John Diefenbaker brought them back to power for just six years. Again, they were out of office for over two decades (ignoring Joe Clark’s 10-month minority government of 1979). And we have already seen what happened to them after Mulroney’s nine years.

A social democratic party claiming to be national but with real strength only in Western Canada and Ontario. This element became visible as early as the mid-1920s, when a group of left-wing MPs emerged amid the wreckage of the disintegrating Progressive party. These MPs went on to help found the Co-operative Commonwealth Federation in 1932. The CCF regrouped in 1961 as the New Democratic Party. At the federal level, the NDP is currently in eclipse, with only nine seats, but it continues to govern Saskatchewan and British Columbia, forms the official opposition in Manitoba, and won the 1996 election in Yukon. Social democrats will continue to influence Canadian politics.

A right-wing populist party based in Western Canada. Social Credit, the first modern example, entered the House of Commons in 1935. Despite a long history of ups and downs, it continued to elect western members through 1965. Provincial Social Credit parties governed Alberta until 1971 and British Columbia until 1992. The Reform party inherits the conservative populist tradition. Its first and so far only leader is Preston Manning, himself a federal Socred candidate in 1965 and the son of Ernest Manning, the long-serving Social Credit premier of Alberta.

A francophone nationalist party in Quebec, such as the Bloc Populaire in 1945, the Union des Electeurs in 1949, the Ralliement Créditiste in 1962 through 1979, and the Bloc Québécois in 1993. Plus nationalist parties that ran for office at the provincial level — Maurice Duplessis’s Union Nationale, which replaced the Conservatives and dominated provincial politics from the 1930s until 1960; the Parti Québécois, which has governed off and on since 1976; and, most recently, Mario Dumont’s Action Démocratique. Interestingly, these nationalist parties have spanned almost the entire ideological spectrum, from socialist left to monetary-reform right.

In the last 50 years, the only Progressive Conservative majority governments were John Diefenbaker’s in 1958 and Brian Mulroney’s in 1984 and 1988. Diefenbaker, always a populist maverick within his own party, brought in western support that the Conservatives had lacked, completely shutting out Social Credit in the West. Even more importantly, Maurice Duplessis, taking revenge on federal Liberals who had intervened to deprive him of a provincial victory in 1939, set his Union Nationale machine to work for PC candidates in Quebec on Diefenbaker’s behalf. He delivered 50 seats, seats the PCs could not hold after Duplessis died. Diefenbaker was reduced in 1962 to a minority government dependent on a revived Social Credit party with seats both in Quebec and the West, and his government fell when his own followers split over nuclear weapons and Social Credit withdrew its support. Diefenbaker’s chaotic, populist management style proved incapable of keeping his diverse electoral coalition together.

Brian Mulroney swept to victory in 1984 by allying with Quebec separatists. He recruited numerous well-known nationalists such as Lucien Bouchard and Marcel Masse to his cause, and received the support of many workers from the Parti Québécois machine. PQ premier René Lévesque announced that he was taking the “beau risque” of dealing with federalism in the person of Brian Mulroney, whom he found much more pleasing than Pierre Trudeau. Mulroney’s downfall resulted from losing support both in Quebec and in the West. The Progressive Conservative party became a barrel tapped at both ends. Previous PC voters flooded in the West to Reform and in Quebec to the Bloc.

Essentially, the same story has been replayed since 1917. For the Progressive Conservative party to come to power, the PCs’ leader has had to attract support from western populists and Quebec nationalists in addition to core Tory support in Ontario and the Maritime provinces, and the public has had to be desperate to remove the Liberals. Such a “throw them out” coalition can win an election but can’t really govern, because its elements have different aspirations, which have been ignored, rather than brokered. Western populists, at least those of the right, want a smaller, more parsimonious government that treats all provinces equally. Quebec nationalists demand a federal government that offers Quebec special treatment by transferring to Quebec both revenue and powers. And eastern Tories generally want a traditional and centralist approach to government.

It might be possible to keep this coalition together in the more loosely structured American system, which has a minimal requirement for party unity. For example, segregationist southern whites and integrationist northern blacks once simultaneously supported the Democrats, although that strange alliance fell apart after southern blacks got the vote and confronted southern whites directly. But Canada’s parliamentary constitution requires disciplined parties able to vote as a bloc in the House of Commons. Diverse coalitions face grave strain, because one element usually sets the party line, alienating the others. In the Progressive Conservative party, the predominant element has been centrist and eastern, anglophone and Tory, leaving western populists and Quebec nationalists feeling that the party does not represent their views or interests.

Imposing a first-past-the-post voting system upon a society with deep ethnolinguistic and regional cleavages inevitably fragments Canadian conservatism. Different political cultures — between Quebec and the rest of Canada, and between the West and the East — have repeatedly shattered the regimented coalitions necessary for political combat in the House of Commons. On the other side of the political spectrum, our system has similarly fragmented social democrats, who have never been able to put together a national electoral coalition. Starting from their Western base, social democrats have acquired genuine support in parts of Ontario, but not in the Maritime provinces or in Quebec. Quebec’s social democratic impulse has repeatedly been detoured into the support of nationalist movements, most recently the Parti Québécois and the Bloc Québécois.

In this configuration, the Liberal party should be understood not as a centre-left party, like the American Democrats or British Labour, alternating in office with a centre-right alternative. Rather, it is a true centre party, comparable to the Christian Democrats in Italy, the Liberal Democrats in Japan, and Congress in India, standing for nothing very definite but prevailing against a splintered opposition. It avoids definite ideological commitments and brings together people simply interested in exercising power and dispensing patronage. The left-leaning period under the leadership of Pierre Trudeau was an historical aberration, its interventionist innovations now energetically being rolled back.

Parties are pulling us apart

ALL OF CANADA’S OPPOSITION PARTIES ARE ON SINGLE-HANDED CRUSADES to drive the Liberals from office and form a majority government. (In the case of the Bloc Québécois the goal involves altering the national boundaries.) The logic of this quest requires each party to distinguish itself from the others as well as from the government, further entrenching a fragmented party system. The liberal elements of the PCs and the populist elements of Reform both seem determined to take this risk in an emerging war of attrition between them. At its August convention in Winnipeg, the PCs positioned themselves definitely in the centre, even to the left of the Liberals on some issues. The PC leader, Jean Charest, completely ignored Reform, refusing even to utter the word in response to journalists’ questions, hoping that Reform voters will drift back to the Progressive Conservatives as the PCs rise in the polls and again become the only viable alternative to the Liberals.

This Red Tory line of reasoning is fragile. If Reform has done anything, it has taught conservative voters that they do not have to be content with Toryism, that they can have their own party, that such a party can elect MPs and that it can influence the political agenda in Ottawa. The current Liberal government is more conservative on most issues than the previous Progressive Conservative government. Whatever the Liberals do seems moderate because Reform urges them to go further and faster. Conservative voters are getting better results as outsiders influencing a Liberal government than they did as an inside influence within a Progressive Conservative government.

In effect, the Reform party in the 1990s is playing the role of the NDP in the 1960s and 1970s, when it set an economic and social agenda for the Liberals to enact. Although Reform officialdom decries the “NDP of the right” label, it is the effectiveness of principled opposition, not the pretension of wannabe government, that holds many voters to the party. In all likelihood, enough Reform voters will stay with their party precisely to let it continue to exercise this influence and, at a minimum, to elect MPs from Alberta and British Columbia. By running candidates in Ontario, Reform will also hobble Progressive Conservatives’ efforts to elect anyone there.

On the other hand, the Reform party is unlikely to drive the PCs out of business. After the 1993 election, Preston Manning shunned conservative ideology to pursue his concept of a trans-ideological populist movement. Instead of consolidating the conventional right, he purged terms like “conservative” from the party’s official vocabulary. Ironically, his concept’s vagueness has had the perverse effect of allowing the party’s most right-wing elements to define its image in the public eye. Despite some by-election advances, Reform has so far acquired only shallow support east of Ontario, where its 1993 beachhead is also suspect. Reform seems confined to its western base.

An unknown factor in this equation is the Reform leader himself. Preston Manning has always maintained that if Reform doesn’t quickly come to power, it will quickly fade away. This may be an accurate commentary on populist parties, or it could be an excuse for creating a temporary personal vehicle rather than a permanent organization. However, even if Reform collapsed in chaos some successor movement would likely emerge, given the historical roots of western populism. With many conservative interest groups and mass movements now flourishing, there is no shortage of potential leaders to make another foray into the broad right of federal party politics.

If Reform and the Progressive Conservatives continue their war of attrition, they could keep each other in check for a long period of time without ever delivering a coup de grâce, segmenting the right into two parties with different ideologies and demographic bases. In that scenario, the Liberals will continue to govern, even if an NDP resurgence were to cut into its majority.

Ideologically, the present Liberal party has pitched an exceedingly broad tent. On one side, it holds those who on specific social or economic issues are as right-wing as any Reformer, and on the other, it holds those with egalitarian and interventionist views who would vote NDP if social democrats had any chance of coming to power. When Brian Mulroney was in office, the Liberals in opposition sounded like a centre-left party; but once they got in control, they continued his key policies of the GST, low inflation, free trade and privatization, and in fact moved much farther and faster than Mulroney’s government ever did on deficit reduction and downsizing the civil service. “Campaign from the left, govern from the right,” still works as a Liberal formula.

At the same time, national unity has been shrinking the Liberal tent. Francophone nationalists in Quebec, many of whom voted Liberal when Pierre Trudeau was the leader, have transferred their allegiance to the Bloc Québécois, leaving Liberals with Quebec’s anglophones and older francophones worried about the costs and trauma of attaining sovereignty. In all likelihood, the Liberals have permanently lost the francophone vote that they controlled for almost a century. If so, they will find it difficult to continue winning a majority of Commons seats, even if they remain the largest single party.

Courting the three sisters

ALONG THE TRANS-CANADA HIGHWAY FROM CALGARY TO BANFF lies a prominent mountain called The Three Sisters. Legend has it that an Indian chief placed each of his three daughters on a separate peak to keep them away from unworthy suitors. The strategy succeeded so well that the three daughters died up there. Canadian conservatism is also a family of three sisters fated to perish in isolation unless they descend from their mountain tops and embrace more realistic expectations.

In more prosaic language, the central question for Canadian conservatives is this: Can Canada ever have a version of the Thatcher-Reagan phenomenon — a broadly based, centre-right party committed to a moderate but definite and consistent conservative philosophy, and able to govern? The prospect for reuniting the three sisters is bleak at the moment. The Bloc Québécois, though it attracts many conservatively minded voters, is a nationalist movement, not a conservative party. The conservatism of the Progressive Conservative party simmers on some back burner as its current leadership advertises itself as a B Team for the governing Liberals. And the Reform party seems content to confine itself to the populist tradition.

A merger between Reform and the PCs, though still discussed, seems to us out of the question. Too many careers would be at stake. Political parties almost never merge in the true sense of the term, and the gap between today’s opposition factions is simply too great.

After the next federal election, Canadian conservatives may begin to encourage limited cooperation between Reform and the PCs, leading to a system of sister parties. Outside the United States and the United Kingdom, such alliances are actually the norm in the democratic world, three examples being the Christian Democratic Union (CDU) and the Christian Social Union (CSU) in Germany, the Liberal-National coalition in Australia and various centre-right alliances in France.

But this enumeration raises the question of the electoral system. Each of these countries uses something other than first-past-the-post voting. Australia has a preferential ballot for the House of Representatives, allowing Liberal and National candidates to run in the same constituency without hopelessly dividing the right-wing vote: Voters can rank their choices to ensure that the winner receives 50 per cent of the vote. Germany has a mixed-member-proportional voting system that delivers a highly proportional result. The CSU operates only in Bavaria, while the CDU does not go into that province; but even if the two parties were to compete head-to-head, the electoral system would protect the existence of both. France has a two-stage run-off system that allows the Gaullists and the traditional centre-right parties to test their strength on the first ballot and make alliances for the second ballot.

First-past-the-post voting encourages parties to engage in a war of attrition. Yet there is an exception to its Darwinian voting logic — territorial concentration — which has allowed smaller parties to survive in Canada despite the electoral system. In effect, territorial concentration has produced several regional two-party systems instead of a national two-party system. Both the Reform party and the Bloc Québécois, or even the PCs, could go on for decades without ever becoming national parties; and through their survival as regional parties they could prevent the emergence of a national conservative party.

Reform and the PCs could cooperate if their supporters, seeing that the war of attrition does not work under Canada’s particular conditions, push their leaders against the logic of the electoral system. The two parties could begin by agreeing to advocate electoral reform through the run off, preferential ballot, or mixed-member-proportional system, which would be in the interest of both parties. They might further agree on a territorial split at the national level, with Reform running in the West and the PCs in the East, or Reform in rural areas and the PCs in the cities. Or they might base candidacies on standing in opinion polls or success in the previous election. Or, as briefly discussed at the Winds of Change conference, they might hold joint nomination meetings, allocating candidacies riding by riding, depending on the strength of local party organizations. The parties might also agree to common platform items and limited cooperation in Parliament. No doubt other models of cooperation could be designed; the machinery is not a problem if the will to cooperate exists.

A Reform-PC alliance might get 30 per cent of the vote — too little to win an election, but enough to make the alliance the official opposition, with far more seats than the Bloc Québécois or the NDP. It would become the obvious alternative to the Liberals. Indeed, forming at least a minority government might not be that far away. With the Bloc Québécois controlling a majority of seats in Quebec and keeping them out of play, a party can form a government with meagre support in that province, as the Liberals did in 1993 with only 19 of 75 Quebec seats. If the Bloc maintains its strength, a swing of less than 10 percentage points from the Liberals to a Reform-PC alliance would make the latter the government. Because of the organizational weakness of the right, many voters who voted for Brian Mulroney’s PCs in 1984 and 1988 now support the Liberals. Some of them might well switch if they saw an effective coalition on the right.

In the longer term, however, and assuming that Quebec remains in Canada, the alliance would find it hard to form a stable government without some Quebec support. Although Quebec has lost importance — in the next election, its share of Commons seats will fall below 25 per cent for the first time in Canadian history — it nevertheless remains second only to Ontario and much larger than any other province.

If Quebec stays in Confederation, the Bloc will either disintegrate or become an autonomist party, participating in federal politics as a representative of Quebec’s specific interests. Philosophically, it is logical for liberals to offer Quebec money and privileged treatment, while conservatives find it easier to offer autonomy and enhanced jurisdiction. On that basis, a strategic alliance of Quebec nationalists with conservatives outside Quebec might become possible, and it might be enough to sustain a government.

None of this will be easy or even likely. But experience shows that a monolithic conservative party is unworkable; so conservatives who are unhappy with a one-party-plus system featuring the Liberals as the perpetual governing party may have little choice but to construct an alliance, at least of the two anglophone sisters, and perhaps ultimately including a third sister. An alliance would face many difficulties, to be sure, but it would also have two great advantages. It would reflect the regional and cultural character of Canadian society, and it would give that character an institutional expression. Also, it would allow leaders of the regional parties to defend necessary compromises as precisely that — necessary compromises. In a single national party, compromises have to be defended as party policy, which tends to drive dissenters out of the fold.

If cooperation is ever to work, the fragments of Canadian conservatism must recognize that each represents an authentic aspect of a larger conservative philosophy. Reformers will have to realize that there is something genuinely conservative in the Tory penchant for compromise and incrementalism. Tories will have to admit that compromise, to be honorable, must be guided by underlying principles, and that Reformers are not extremists for openly advocating smaller government, free markets, traditional values and equality before the law. And both will have to recognize that Quebec nationalism, while not in itself a conservative movement, appeals to the kinds of voters who in other provinces support conservative parties. The Bloc Québécois is strongest in rural Quebec, among voters who would not be out of place in Red Deer, except that they speak French rather than English. They are nationalist for much the same reason that Albertans are populist — they care about their local identity and the culture that nourishes it, and they see the federal government as a threat to their way of life.

It may be that the third sister can never be brought back in. In the last century, Quebec nationalists, content with provincial autonomy and cultural preservation, could participate in Sir John A. Macdonald’s Liberal-Conservative Party — a single party in name but a coalition in substance, always with a strong “Quebec lieutenant.” But now that Quebec nationalists have discovered sovereignty, they may never again see merit in a conservative coalition.

Should that become the case, both conservatism and Canada become the losers, for interventionism is losing its ability to hold the country together. There is little money to bribe Quebec, and voters in the rest of the country are turning against special privilege for Quebec (or anyone else). Bereft of carrots, the Liberal government is resorting to ever heavier sticks against separatism. In our view, only a conservative vision that takes government back to its proper role, and thereby concedes to Quebec the space required for its own civil society, can hold the country together for the long term.

Whatever happens, Canada will need some kind of effective political formation on the right. Given the repeated failures of our national conservative parties, conservatives should ponder a coalition of the right. Even if all three sisters can never be brought together, a working alliance of the two anglophone sisters would be worth having for its own sake.

Foundations for a mature democracy

THE STRESSES AND STRAINS OF THE CANADIAN STATE HAVE LED TO MANY proposals for structural and constitutional change. Yet, to be accepted, structural changes must benefit a very large segment of the political community. Most recent proposals are too obviously the particular aspirations of certain regions, specific ideologies or individual political leaders and their parties to ever gain wide acceptance.

Although we, as conservatives, are concerned in the first instance about creating an effective conservative coalition, we believe that our line of thought has broader significance for Canadian politics. No one who cares seriously about ideas, whether conservative, liberal or socialist, should be happy with the thought of prolonged one-party government by the Liberals. Countries governed for a long period by a centre party drift into cronyism, corruption, cynicism and a period of chaos, as has happened recently in Italy, Japan and India.

Each case has its own peculiarities, but the pattern is broadly similar. A governing party enjoying an indefinite lease on power encourages its supporting interests to become closely interwoven with the state. This may entail not only corruption on a grand scale, as in India and Italy, but also policies that bankrupt the public treasury (Italian pensions, Japanese pump-priming in the 1990s) and hamper the economy through favoritism (Indian export and import licences) and protection of producers at the expense of consumers (Japan). Of course, these things can happen in any democratic system, but they are virtually inevitable if one-party rule continues for a long period of time. Absence of effective competition is just as bad in politics as it is in economics.

Political chaos ensues when the other parties eventually band against the centre party, which itself dissolves into personal and ideological factionalism. The resulting political anarchy, in which no governing party can deal effectively with pressing national problems, has been bad enough for Italy, Japan and India. It could be literally fatal for Canada, because of the depths of its regional fissures.

Reform of the electoral system is one of the old chestnuts of Canadian politics. The Progressives advocated the alternative ballot and enacted it provincially in Alberta and Manitoba. The NDP has long had a theoretical commitment to proportional representation, though it failed to follow through when in power at the provincial level. Pierre Trudeau spoke favorably of proportional representation, without acting on it in practice.

But it is seldom in the short-term interest of the party in power to carry out electoral reform; by definition, the system worked admirably for those now in power and changing the system might benefit the opponents next time. However, the incentive would change if an explicit coalition of conservative sister parties advocated electoral reform as part of a common platform. The partners would then have to carry through as part of their commitment to each other, and at least some of the partners would also want to, knowing their own futures would become more secure in the process. The NDP should also support electoral reform, allowing even a minority conservative government to pass the necessary legislation. The Liberals might also support it if weakness in francophone Quebec prevented them from winning a majority of seats in the House of Commons.

Electoral reform would help build a conservative coalition, but it might also turn the Liberal party into an explicit federation. Federal Liberals are weak today among francophone voters in Quebec, and they are often at loggerheads with the provincial Liberals. If Quebec Liberals could do so without committing political suicide, they might prefer to have a party of their own cooperating with the national Liberal party, like the arrangement between the CSU in Bavaria and the CDU elsewhere in Germany.

We are conservatives, and it is not our place to speculate at length about what the left could or should do. Yet voters on the left are as much entitled as voters on the right to effective elected representation. Electoral reform might well revive the left. It could, for example, lead to cooperation between the NDP and the left-leaning wing of the Liberals, perhaps producing a national social democratic vehicle with a genuine chance of governing, or at least participating in a coalition cabinet.

Of course, none of this can be foretold in detail; political change always produces unexpected and surprising consequences. But we believe there is good reason to think seriously along these lines. In today’s democratic societies, organizations share power. Corporations, churches, universities, hospitals, even public sector bureaucracies make decisions through consultation, committees and consensus-building techniques. Only in politics do we still entrust power to a single faction expected to prevail every time over the opposition by sheer force of numbers. Even more anachronistically, we persist in structuring the governing team like a military regiment under a single commander with almost total power to appoint, discipline and expel subordinates.

Among major democracies, only Great Britain so ruthlessly concentrates power. In the United States, President Clinton cannot govern without making concessions to the Republicans in Congress. In Germany, Chancellor Kohl needs to keep the support not only of the CSU but of the Free Democrats. In France, the presidency and the national assembly are often controlled by different party coalitions. In most of the rest of Europe, proportional representation ensures that coalition governments routinely form cabinets. In Australia, the Liberal prime minister needs the National Party for a majority in the House of Representatives and, often, the support of additional parties to get legislation through the Senate. In New Zealand, which used to have a Canadian-style system of concentrated power, the voters rebelled against alternating Labour party and National party dictatorships: electoral reform now ensures coalition cabinets.

Many of Canada’s problems stem from a winner-take-all style of politics that allows governments in Ottawa to impose measures abhorred by large areas of the country. The political system still reverberates from shock waves from Pierre Trudeau’s imposition of the National Energy Program upon the West and the Charter of Rights and Freedoms upon Quebec. Modernizing Canadian politics would not only be good for conservatism, it might be the key to Canada’s survival as a nation.


Letters

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      Toronto, responds: January 22, 1997

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      Oakville, Ontario, responds: January 24, 1997

, Calgary

      , responds: January 27, 1997 , Publisher/Editor,

From The Right

      , Toronto, responds: February 1, 1997

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      President, Peterborough Riding, Reform Party, responds: February 2, 1997

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      Edmonton, responds: February 5, 1997

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      Québec City, responds: February 17, 1997

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      Montreal, responds: April 4, 1997

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      Peterborough, Ontario, responds: April 25, 1997

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      Director, Canadians for Proportional Representation, Winnipeg, responds: April 30, 1997

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      Belleville, Ontario, responds: May 2, 1997 , Montreal, responds: May 29, 1997

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      Montreal, responds: June 6, 1997

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    Muirkirk, Ontario, responds: November 1, 1997

Mendelson Joe, Toronto, responds: January 22, 1997

To refer to Jean Chrétien’s tenure as prime minister as a “benign dictatorship” may be true if one were to compare Chrétien to Idi Amin, but, in the context of democracy (at least democracy as we know it here in Spoiled Bratland), Mr. Chrétien is neither a dictator (He simply won his position by default after his competition imploded) nor is he benign.

Jean Chrétien has effectively become a Brian Mulroney-surrogate albeit Chrétien is more canny or less transparent in his methodical cakewalk to carry the Conservative agenda under the Liberal flag.

Pimping nuclear reactors in China is no benign act, especially in view of how China enslaves its citizenry.

Dismantling the CBC further than his mentor Mulroney is no benign act because the CBC, for better or worse, is all that reminds Canadians of who they were and who they are. Fortunately, there are regional television stations like TVO in Ontario to remind us we’re not New Yorkers.

Lying to voters on any number of promises, the most obvious being the commitment to kill the GST, is a boldfaced betrayal. Betrayal is no benign act.


Phillip Blancher, Oakville, Ontario, responds: January 24, 1997

Congratulations on a very excellent article. I especially like the sidebar on the different types of parliamentary systems. It is very informative and shows some great options for the future of Canada.

I would like to thank you both for at least raising a few eyebrows about the unnoticed “dictatorship.”


Tori Fahey, Calgary, responds: January 27, 1997

I am a first-year University of Calgary student and have just finished reading “Our benign dictatorship.” In the last election, I volunteered my services to Stephen Harper’s campaign. Even in Grade 10 I supported his views. I continued to support both Harper and Reform until just over a year ago. My interest was not re-sparked until reading in the paper that Harper had resigned. I strongly support this move, and from what I have read in the article and in the paper, in addition to watching Harper’s interview last night on CBC, strongly support some of his views on what is important in politics for the future.


Michael Taube, Publisher/Editor, From The Right, Toronto, responds: February 1, 1997

Congratulations are in order to both Stephen Harper and Tom Flanagan for their fine article.

One of the great difficulties facing the political right in Canada today is a split in allegiance. Many authors have written and talked about it, including myself. The consequence of the PC-Reform split is a more powerful and more dominant Liberal Party in the federal arena. As if the Liberals haven’t been enough of a problem already!

The benefits of a system with proportional representation for the political right in Canada are immense. The creation of an alliance would be a strong challenge to the one-party dominance we see in this country. In time, the Liberals would fall out of favor (I hope!) with the electorate, and a right-wing alliance could take shape.

However, alliances have a way of falling apart from time to time. In Italy, political coalitions often drop like flies because of various scandals. In Germany, both the Christian Democrats and Social Democrats have worked hard to gain the support of one party — the Free Democrats. Without the FDP, who have been part of left-wing and right-wing coalitions in Germany over the years, an alliance is very hard to create.

I guess this is why I am still partial to the majoritarian system of voting procedures. Yet, as time moves along, I am beginning to slightly sway away from those beliefs. The Harper-Flanagan proposal of list seats as per the mixed-member-proportional system makes a great deal of sense. Perhaps it is time to look at new options.

Here’s to bringing down our benign dictatorship! Canada deserves nothing less.


Rex Welbourn, President, Peterborough Riding, Reform Party, responds: February 2, 1997

Your analysis, while adequately taking into account some political and broadly cultural matters, does not do justice to economic and demographic trends that may in the next few decades result in the following: a dramatic drop in Quebec’s importance; a slight drop in the importance of the Atlantic provinces; a slight increase in Ontario’s importance and a dramatic increase in the importance of the West.

In the past, (with a few exceptions such as the Diefenbaker years), political power in Canada depended primarily on Ontario and Quebec. In the future, it will be based on Ontario and the West. It would be foolish for conservatives to give up on first-past-the-post voting at the very moment in Canadian history when we would gain the most benefit from it.


Harold Jansen, Edmonton, responds: February 5, 1997

“Our benign dictatorship” really kick started a debate. I’ve seen more on the electoral system in the media in the last month than I have in years.

One thing that interests me is how your argument and the arguments of others who have displayed an interest in electoral reform (i.e., Lisa Young’s piece for the Canadian Advisory Council on the Status of Women) are arguing on the basis of more balanced diversity of opinion in the House of Commons. The last time there was a flurry of interest in electoral reform (1979-80), the emphasis was on more balanced regional representation. If you compare the kinds of arguments Flanagan and Harper make in their article with some of Irvine’s arguments, the contrast is very interesting.


Brad Sweet, Québec City, responds: February 17, 1997

Harper and Flanagan expose themselves as children who, unable to win at a game, decide to change the rules in order to ensure a victory. If, as they say, the conservative element in Canada is split on a national level, perhaps they should make more of an effort to cooperate. If these divergent groups cannot cooperate and form a united front on their own, then who would vote for them? Since they cannot agree among themselves, they want to change the way we elect our representatives to ensure they get elected.

The Liberal party shouldn’t be blamed for the failings of the conservatives. The policies of each of the neo-conservative parties would never lend them to becoming a party with the same staying power as the Liberals. The intolerance of the Reform Party, the nationalism of the Bloc and the Mulroneyism of the Conservatives leave little choice to the average Canadian. Harper and Flanagan and the neo-conservatives have no one to blame but themselves.


Marc Williams, Montreal, responds: April 4, 1997

Regarding the excellent article by Stephen Harper and Tom Flanagan about electoral reform (“Our Benign Dictatorship,” The NEXT CITY, Winter 1996/97), it should be noted that the first-past-the-post voting system easily can create profound distortions in election results in a large country and in a federal state like Canada. For example, in the 1980 federal election, the Liberal Party won the election with almost every seat in Quebec and almost no seats in Western Canada.

For federal elections, the House of Commons should have, for example, 20 per cent of the seats elected by regional proportional representation with seats awarded to defeated candidates with the best results. Another alternative would be to have a House of Commons composed of about 300 members elected by proportional representation in about 150 electoral constituencies with two members per constituency plus about 20 compensatory seats.

Meanwhile, the first-past-the-post voting system works only when there are two candidates on a ballot; with more than two candidates on a ballot, electors should be permitted, as soon as the coming federal election, to indicate a second choice on the ballot. Electoral reform is needed in order that every vote counts.


William Stewart, Peterborough, Ontario, responds: April 25, 1997

A thought: How can we possibly bring enough pressure to bear on the government to initiate such electoral reforms, when we conservatives are too divided to be a credible threat to their majority, let alone bring them down? As wonderful as such changes may be, they have even less chance of coming about than “distinct society” status for Quebec or Senate reform! And could we honestly agree on exactly which type of electoral system we’d like to replace the current one? Not if we can’t unite to defeat the Grits. And if/when that happens, why would we want to change the system once it finally worked for us? Even Reform, which seemed to be in favor of more proportional representation prior to 1993, found that it was no longer a priority after the election (and no wonder, since the status quo had worked in their favor and against the Tories). Call me a cynic, but it would seem to me that electoral reform is a complete non-starter — it’ll never be. Happy Election Day!


Chris Paul Billows, Director, Canadians for Proportional Representation, Winnipeg, responds: April 30, 1997

On behalf of Canadians for Proportional Representation, I wish to express my appreciation for your well-written article concerning electoral reform.

Though I do not subscribe to your partisan biases (Conservative/Reform), I totally agree that electoral reform will help make our country work better for people of all political stripes. Ideally, I would like to see a coalition of all democratically-minded Canadians, regardless of their partisan affiliation, working together to bring electoral and democratic reform to Canada.


Gregory Mawson, Belleville, Ontario, responds: May 2, 1997

The problem with proportional representation is the same problem with minority “governments” in that there is not enough strength in the house or legislature to get bills passed. Even when coalitions develop, when was the last time there was EVER a coalition on the right? The only one I can seriously think of was the PC-Liberal one in British Columbia in the ’40s, designed to keep the CCF out of power and that functioned so poorly that BCers were forced to turn to Social Credit in desperation! Not a prospect I relish myself.

If you want greater “democracy,” then I suppose that PR is a good idea, but as rightists we have to remember that the first-past-the-post system works better for us than any PR system would, despite the fact that the Grits have Ottawa in their grasp. There is not enough rightist popular support in Canada to elect a viable conservative government by PR, and there is only occasionally enough to elect one by our current system.

By the way, I’m a Tory myself, and despite the fact that under a PR system my party would have had forty-some seats in the 35th Parliament, the idea of PR still fills me with distaste. When the Tories get less seats than popular vote again this time around, I’ll feel the same way. Just a thought. Don’t forget to vote!


Marc Williams, Montreal, responds: May 29, 1997

Instead of gender parity in elections (re: Nunavut territory), should we have a full proportional representation voting system for municipal, territorial, provincial, and federal elections with two seats per district or riding and with the possibility for a political party to elect the two members of a district or a riding if it obtains 50 per cent-plus-one of the vote in the district or the riding?


Marc Williams, Montreal, responds: June 6, 1997

As much as possible, every vote should count in a federal election in a large country and in a federal state like Canada.

Meanwhile, if we, now, have a very divided House of Commons, it is because of the present voting system, and it is clear that we need electoral reform with, for example, between 15 and 20 per cent of the seats in the House of Commons elected by regional proportional representation with seats awarded to defeated candidates with the best results.


Dennis Smith, Muirkirk, Ontario, responds: November 1, 1997

I just talked to Ann-Marie Legot at the Privacy Commissioner of Canada’s office. Do you know that you have no legal right to privacy in Canada as a private citizen, but your federal politician does? It’s true. The previous Privacy Commissioner recommended that the legislature pass legislation ensuring that no one would ever be denied goods or services or employment (should have added a bank account, line of credit, or a loan) in Canada because of a refusal to give a Social Insurance Number. And, now, our Supreme Court says (October 9) that it is okay to gag us. What is next? I’d like to leave Canada, but they will make me a political prisoner by holding all of my capital here.

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Discussion Group, Order in the courtroom

Karen Selick
The Next City
December 21, 1996
Discussion

AS I SIT DOWN TO START WRITING THIS ARTICLE, I am about three weeks away from a custody trial. No, it’s not my child I’ll be fighting over. I am a lawyer, and I’ll be handling this for a client.

It has taken us a long time to get this close to trial. Although Ontario law makes special provision for custody cases to be heard within six months, in my experience meeting the deadline is the exception, rather than the rule. This client’s legal ordeal began 16 months ago.

I feel the way an impresario must feel as he organizes a grand theatrical event. I’ve been interviewing potential witnesses, trying to decide who will be the best person for each role, preparing my own script of questions and rehearsing with the witnesses I’ve selected. Their performance will change the life of a little boy, and we get only one chance to do it right.

But I face a problem that no impresario faces: I still don’t know for sure when the show will go on. The theatre can’t be booked for me; no program can be printed. Instead, our case is on a long list, sandwiched in between a nuisance action and some other couple’s divorce. The case at the top of the list will start on Monday morning three weeks from now, but I can only guess at when ours will be reached. It might move up the list if some of the cases ahead of it settle, but it might also be delayed if those cases take longer than estimated. If that happens, we might not be reached during this trial sitting at all. Instead, we’d have to wait until another sitting about two months later.

So here I am, trying to coordinate the schedules of half a dozen people, including one psychologist and two business people, some of them nervous, first-time performers — and I can’t even tell them for sure what month they’ll be needed, let alone what day or what hour. If we get postponed for more than a couple of weeks, I’ll have to interview these witnesses all over again to ensure their evidence will be fresh in their minds. That would be a lot of money down the drain for my client.

There’s another uncertainty, too. Two judges will be sitting that week. The courthouse has given me their names, but I don’t know which one will be assigned to my case. I’ve appeared before both of them before. Their personalities are very different, and I will present my client’s case differently depending on which of them I get. Too bad I can’t find out in advance so that I could focus my preparations more specifically and save my client some fees.

But it might not make much difference. The courthouse has a poor record for predicting which judges will attend. Often, duties are swapped at the last minute with judges from distant towns, and someone totally unexpected shows up. Sometimes I even suspect there’s a policy of giving lawyers deliberate misinformation about who the judge will be. Judge shopping — the tactic of postponing a trial when assigned to an undesirable judge — is definitely frowned upon in our court system. Maybe court administrators are trying to protect the popular judges from being overworked and ensure that the unpopular ones do their fair share. Or maybe it’s official policy not to admit that there are good judges and bad ones.

But lawyers know judges differ enormously. Some judges are consistent in their reasoning from one case to the next; others are like loose cannons on deck in a stormy sea. Some are pleasant and polite to deal with; others are grouchy and rude. Some are hardworking and conscientious; others start court late, knock off early and fall asleep during trials. In this case, I already know that merely because my client is the child’s father, he faces an uphill battle. Both of the judges whose names I’ve been given have clearly stated their bias, in pronouncements made both inside and outside the courtroom, for giving custody of young children to their mothers. I’ve heard other judges in our district say the same thing. I’ve already warned my client of this.

It must be hard for him to keep his spirits up. He is getting a first-hand look at everything that’s wrong with Canada’s court system: backlogs, biased judges and an almost complete disregard for the convenience and satisfaction of those who are forced to use the court system. “If I ran my business this way,” he tells me, “I wouldn’t have any customers.”

“Oh, yes you would,” I respond, “if you gave away your product for free. In fact, you’d have a backlog — just as our courts do.”

An economic problem, not a legal one

UNFORTUNATELY, THIS CLIENT IS NOT THE ONLY PERSON WHO HAS NEVER thought about the connection between the price people pay to use our justice system and its quality and availability. He can be forgiven, however; this is his first involvement with the courts. Others who are involved every day of their lives — lawyers, judges and court administrators — haven’t made the connection either.

It’s not that the problems aren’t well known. The newspapers have been full of reports over the last few years about criminal charges being dropped due to courtroom backlogs and litigants in civil cases waiting years before their cases get heard. The Ontario Attorney General’s office announced last year that 38 of its 61 court districts have such serious backlogs that accused persons might go free without ever coming to trial. A recent task force of the Canadian Bar Association reported that in some Ontario cities, civil cases sit as long as 25 months before coming to trial.

The problem of undesirable judges has also become a focus of public concern, as one faux pas after another has been reported by the press. There was Mr. Justice Jean Bienvenue who said Jews didn’t suffer in the concentration camps and women can sink to depths of vileness unattainable by men. There was the judge who reduced a child molester’s sentence because he had penetrated his victim anally rather than vaginally, thereby sparing her virginity. There was the judge who skipped court one day because he was upset about work being done on his car and he wanted to wait at the garage.

There’s been no shortage of ideas from the full-time players in the justice system about how to fix the problems. Typically, suggestions include hiring more judges, paying them higher salaries, sending them on more training courses, building more courtrooms, buying more computers . . . well, you get the idea. Most of the recommendations involve spending even more public money than we’re already spending. In times of budget cuts, ideas like these are non-starters. Besides, they are somewhat suspect — they tend to come from those who have the most to gain from their implementation.

To members of the legal community, these problems may seem novel, but to members of another discipline — economists — they’re simply a concrete example of a most familiar problem: how to allocate scarce resources among competing uses. All the legal expertise in the world can’t solve the problem because it isn’t a legal problem, it’s an economic one. Fortunately, there are economists working on it.

One is Bruce Benson, distinguished research professor in the Department of Economics at Florida State University. He is the author of a book entitled The Enterprise of Law and numerous other articles on this subject. Professor Benson points out that our courts are an instance of what economists call “the tragedy of the commons.”

This phrase comes from the title of a now famous 1968 article in Science magazine. Biologist Garrett Hardin pointed out that where pasture land is open to all nearby farmers free of charge, every farmer has an incentive to keep adding extra animals to his herd, since he can increase his revenues at no cost to himself. Each additional animal pastured in the common field brings closer the day when the field will become exhausted by overgrazing, but that distant cost is not borne exclusively by the individual; rather, it is borne by the group of farmers collectively. In deciding how many animals to pasture, every farmer’s own self-interest will impel him to increase his herd, even though the sum of all such individual decisions will spell tragedy for the field, and ultimately for the group.

This pattern of overexploiting a free or common resource is responsible for such diverse fiascoes as the near extinction of the North American buffalo, the deterioration of public parks and the depletion of fish stocks in the oceans.

There are several ways of allocating scarce resources among competing uses. One method is to sell them for whatever the market will bear. Another divides the resource equally among all claimants at some price less than the market would bear; for example, by way of ration cards. A third method gives the resource to all comers, theoretically for free, but makes them wait in line for it. It is this method that we use in our courts.

Note that the “free” aspect of queuing is true in only a limited sense. Even though litigants pay a negligible amount in cash to the government for use of the courts, there are still costs involved in waiting — some monetary and others not. In medical malpractice suits, for instance, pain and suffering can go unrelieved for years or be aggravated by the ordeal of waiting and the lack of funds for remedial care. Sometimes the patient dies before the trial occurs. In child custody cases, both parents and children experience extreme stress, as everyone’s life is put on hold. Sometimes the delay itself induces a judge to make permanent a less-than-optimal interim arrangement, for fear that change would be more disruptive than maintaining a flawed status quo. In commercial cases, defendants may go bankrupt before judgment is rendered against them, thereby depriving the plaintiff of any practical remedy. In every kind of case, witnesses may move away or even die, increasing the eventual cost of conducting the trial or preventing justice from ever being done.

Free courts as a tragedy of the commons

THE TRAGEDY OF THE COMMONS AFFECTS OUR JUSTICE SYSTEM IN SEVERAL ways. In civil litigation, free courts encourage some plaintiffs to bring actions who would otherwise be dissuaded by the expense of paying for the services of a judge. The resulting backlog helps those whose cases are relatively weak. Sometimes a defendant will choose to pay off a plaintiff (“settle out of court”) simply to avoid the ordeal of waiting and the expense of interlocutory procedures. This phenomenon itself encourages more people to sue. A vicious circle develops.

The commons problem is held in check to some extent by the fact that litigation has other expenses attached to it — primarily, the fees paid to lawyers. But even there, political trends over the past decade or more have been toward subsidizing or eliminating legal costs in circumstances that some mandarin, somewhere, has deemed worthy. Complaints under human rights legislation, for example, cost nothing to the complainant to prosecute. The legal services are provided free of charge by human rights commissions. Not surprisingly, there have been enormous backlogs of human rights cases. Similarly, constitutional challenges have been subsidized either directly by the federal government’s Court Challenges Program or indirectly by the intervention of tax-funded groups such as the Women’s Legal Education and Action Fund. Predictably, constitutional cases have burgeoned. Would-be litigants with low incomes have become eligible for free or subsidized legal services through provincial legal aid plans. Not coincidentally, the number of people demanding assistance has skyrocketed, and many provincial plans have experienced funding crises. The combined effect of free legal services and free courtroom services is at least one component of the litigation explosion.

Many Canadian courts serve as both civil and criminal courts, with judges assigned interchangeably to both types of cases. When civil litigation is encouraged by below-market pricing, the extra demand for courtrooms and judges inevitably starts to create backlogs in the criminal justice system too.

One might expect the number of criminal trials — unlike the number of civil trials — to be independent of the fact that courts don’t charge for their services. After all, criminal defendants don’t pay for their trials even if they’re found guilty, so an individual’s decision to participate in crime should not be affected by the possibility of having to pay for his own judge. However, it is not the criminals whose demand for court services should be considered here — it is the rest of the population.

Economist David Friedman points out, in his book The Machinery of Freedom, that a country’s citizens hold varying opinions about what actions should constitute crimes. Some people want laws prohibiting others from engaging in “victimless crimes” — activities such as drug use, gambling, pornography, prostitution and, not that long ago, homosexual practices. But, says Friedman, “People who want to control other people’s lives are rarely eager to pay for the privilege.” Under our criminal justice system, they don’t have to. By supporting laws banning their pet peeves, the puritans in our society can shift the cost of their preferences to the whole of society. In other words, the commons system of criminal law enforcement creates an artificially high demand for more laws prohibiting more things.

Consider, for example, Bill C-47, the proposed Human Reproductive and Genetic Technologies Act given first reading in the House of Commons in June 1996. It will make illegal such transactions as surrogate mothering contracts and the sale of sperm for artificial insemination, even though the individuals involved may be fully informed, willing participants. Most Canadians have little interest in preventing these activities and even less in seeing their tax money spent to prosecute transgressors, especially if it will mean diverting scarce courtroom resources away from the prosecution of murderers, thieves and rapists. But a small group that feels strongly about this subject has campaigned for legislation that everyone else will pay for — just like the farmer who decides to pasture another animal on the common field.

In the United States, Benson says, “an estimated 30 to 50 per cent of the criminal justice system’s resources are employed against people who have not harmed persons or property.”

Our system of supplying free judicial services affects not only the availability of court services, but also the quality. Once hired, judges are very difficult to discipline. Only Parliament can remove a federally appointed judge from the bench. The recent recommendation of the Judicial Council that Justice Jean Bienvenue be removed from office was a first in Canadian history. Lawyers are reluctant to complain about a judge who is biased, rude, lazy, inefficient or unintelligent for fear of reprisals the next time they have to appear before that judge. A system that makes us all beggars when it comes to eking out some court time also says we can’t be choosers about which judge we get.

Another problem is that judges are paid an annual salary. With incomes that are not tied to performance in any way, they have little incentive to provide efficient or high quality service. If they make bad decisions and are overruled on appeal, no consequences befall them. If their dockets become backlogged, they are not required to work overtime. There is nothing except their own integrity to keep them hard at work. Even the saintliest individual will be inclined to slow down when nothing motivates him to do otherwise and he observes his less saintly brethren working at a more leisurely pace for the same salary.

More public funding won’t shorten the queue

“THE RULE OF LAW IS NOT A FREE GOOD,” WRITES CANADA’S CHIEF JUSTICE Antonio Lamer in the Canadian Judicial Council’s annual report. This sentence gives me a brief moment of encouragement. Perhaps a light is dawning in the upper echelons of our justice system. Eagerly I read on. “It requires the expenditure of public resources, the amount of which must be adequate to maintain the quality of justice and public confidence in the system of justice.”

Darn. He hasn’t caught on. Yes, we all know justice isn’t free. Money is required to pay for judges, court staff, buildings, paper and so on. But why do we let businesses and individuals who use the system treat it as if it were free? Why assume that public resources are required to maintain the quality of justice?

Not everyone who has a gripe with someone else is on the court’s waiting list. Some people, looking at the backlog, decide that their dispute is just not important enough to pursue; the harm of being involved in protracted litigation outweighs the benefit they might finally achieve. They decide to suffer in silence. Others look at the backlog and decide their dispute is far too important to wait. They’ll lose more by delaying than by paying privately for dispute resolution services. They arrange for arbitration or mediation.

Increasing the public funding of our courts won’t make the backlog disappear. What it will do is change the results of the cost-benefit analysis for some potential litigants. Some of the people who previously opted out because of the delays will be encouraged to get back into line when they perceive a shorter wait. Soon the line will be as long as it was before. This is inevitably the result when the queuing method of resource allocation is selected over the market method.

Would the last litigant out please turn off the courtroom lights?

AS THE PRESSURE ON THE COURTS MOUNTS, FRUSTRATED USERS of the system have started taking matters into their own hands. An ad hoc privatization of the justice system has begun. Litigants have been dropping out of the public court system and turning to procedures such as mediation and arbitration. ADR (alternative dispute resolution) has become a popular buzzword in the legal community. Lawyers, psychologists and others from many different walks of life have been flocking to courses on ADR — some to learn how to represent clients at such proceedings, others to learn how to conduct the proceedings themselves. The Law Society of Upper Canada recently adopted a change to its Rules of Professional Conduct, making it mandatory for Ontario lawyers to consider the appropriateness of ADR in every case and to inform clients of ADR options.

In Toronto, several companies offer dispute resolution services in open competition with the public courts. One has adopted a name that offers a bold challenge to the status quo: The Private Court Inc. Litigants can purchase adjudication services in many different forms: settlement conferences, mini-trials or binding arbitration. The companies contract with retired judges and respected senior lawyers to preside over the proceedings.

The private courts offer many advantages over public courts. The first is simply the ability to choose one company versus another. The mere existence of competition gives companies an incentive to offer those services that best suit the customers’ needs. Some disputants may choose to streamline the process in order to save money. Others may want a more detailed inquiry. Some may want an informal atmosphere; others may prefer rigid rules.

Having chosen a company, customers then get their choice of adjudicator. The adjudicators are paid an hourly rate, so they have to ensure a demand for their services in order to make a success at this business. Biased, lazy or rude adjudicators will quickly be rooted out as they fail to attract customers. The legal community is a small world in which gossip about an adjudicator’s conduct can travel quickly. And lawyers can now complain about an adjudicator’s bad performance without fear; the lawyer can choose never to appear before that adjudicator again.

Forget about booked-up courtrooms. The private court will conduct its business on your own premises if you wish. Forget about lingering anxiously on a waiting list. The only time constraint is finding a day convenient to all the participants.

Worried about privacy? Unlike the public courts, the files of private adjudicators aren’t available for curious strangers to paw through. Spectators won’t be sitting at the back of the courtroom as your dirty laundry is aired.

Even after paying for the services of the judge, private adjudication may turn out to be less expensive. With a time, date and location booked exclusively for your case, little of your lawyer’s time will be wasted. By contrast, litigants in the public courts are often amazed at how many billable hours their lawyers spend hanging around the court house, simply waiting for the case to be reached on the docket, or for the judge, seated in his chambers, to get off the telephone.

A two-tiered legal system — a step in the right direction

IF CURRENT TRENDS CONTINUE, WE CAN EXPECT TO SEE A RIFT DEVELOP in the justice system. The nature of the public courts’ caseload will change. Criminal cases will, of course, remain in the public system, since no one will be willing to pay to have them adjudicated elsewhere, but more and more civil cases will move into the private court system. The civil cases left behind will be those whose litigants don’t consider important enough to pay for adjudication, or who feel they can’t afford to pay.

This development has its critics. Lawyer Clayton Ruby, for instance, writes: “We have created in law what we abhor in medicine: a two-tiered legal system.” While the majority of the population may agree with Ruby that two-tiered medicine is abhorrent, two important differences make the comparison inappropriate. First, consumers of medical care are all individual human beings, unlike the consumers of civil court services. Some litigants are giant corporations. Why should Mr. and Mrs. Joe Average pay to provide free court services for two enormous multinational companies who can’t agree on the interpretation of a commercial contract? For litigants like this, the cost of dispute resolution is a cost of doing business. It should come out of their profits, just as wages, utilities and other business expenses do.

Second, if we compare the need for medical services with the need for judicial services, the former is far less likely to arise because of the person’s own actions. Diseases often strike through no fault of one’s own. Some people simply have the bad fortune to be afflicted with a genetic condition or a disease for which there is no behavioral cause. Civil litigation much more frequently arises because of the litigant’s unwise actions.

In the field of family law, for example, some couples split up, divide their assets and make custody arrangements for their children without ever seeing a lawyer or a judge. The separation may be painful, but they swallow their hurt and deal with each other in a mature way to resolve their differences inexpensively. Other couples fight it out for years, using courtrooms as the battlefield on which they can vent every petty grievance that ever occurred during their married lives. Why should couples in the former group have to pay for the judicial services consumed by couples in the latter group?

THOSE WHO BELIEVE PRIVATE COURTS ARE AN UNDESIRABLE DEVELOPMENT face a dilemma: What do they propose to do about them? Outlaw them? Forbid people from settling their disputes quickly and privately? Force everyone to use the already overcrowded and problem-ridden public court system? The proposition is so patently unpalatable that no one has yet dared utter it.

No, the most popular alternative they advocate is an increase to the funding of the public courts. But an examination of the recent history of court funding does not show that the courts have been systematically starved of funds. On the contrary, a study done by the Fraser Institute shows that from 1973-74 to 1993-94, expenditures on court and justice personnel and related courtroom costs have increased at the average rate of 5.2 per cent per year, after adjusting for inflation. This is more than twice the rate of increase in law firm revenues, and several times the increase in per capita GDP.

Ironically, it may well be that pouring money into the public court system is the very thing that has caused the problems. The tragedy of the commons teaches us that the more common property is available for use free of charge, the more people will try to make use of those resources.

For those who like compromise

IF SUPPORTERS OF THE PUBLIC COURT SYSTEM DON’T WANT TO SEE their cherished institution left in the dust by the private courts, there are several policies they should consider.

The first would be to reallocate judicial time and courtroom availability toward those cases most likely to leave the system in the absence of improvements. This means, of course, toward civil cases. The corollary is that fewer resources would be available to devote to criminal cases. Decisions will have to be made about what crimes are important to prosecute. Priority will have to be given to crimes that injure others: murder, assault, rape, theft and the like. Victimless crimes — acts that are entirely consensual but have been decreed criminal because they offend somebody’s sensibilities — will have to be legalized.

The second measure would be to take a page out of the books of the private courts and offer litigants more control over the choice of adjudicator. There is no reason to insist that judicial services can be provided only by people who make it their full-time occupation. There is also no reason judges have to be paid a fixed annual salary. Instead, courts could make a panel of judges available for litigants to choose from. Some members of the panel might be individuals who do nothing else but provide adjudication services. Others might be lawyers in private practice who wish to offer part-time judicial services as an extension of their legal careers. Every member of the panel could be required to take preparatory courses and to pass examinations, to ensure (insofar as this is ever possible) a uniform standard of knowledge and competence among panel members. They would then be paid an hourly rate by the government for the time they actually spent judging cases.

When the need for a judge arises, litigants would select a judge from the panel. Many different mechanisms could be adopted to ensure that the selection process itself did not become a stalemate. For example, if no agreement could be reached on a single candidate, each side could nominate its top choice and the two nominees themselves would decide upon a third person who would serve as the judge. Or perhaps each side would rank the entire panel in descending order of preference, and the job would be given to whichever candidate got the best combined score.

My own experience leads me to believe that litigants would usually have no difficulty deciding on a mutually satisfactory choice of judge with the help of their lawyers. Some members of the judicial panel would quickly develop a reputation for wisdom, impartiality, courtesy and efficiency, which others would lack. The best choices would soon be obvious. It is common even now for litigants who are in bitter opposition to each other to agree on the choice of an arbitrator, mediator or appraiser.

This suggestion is a variation of what is usually called “contracting out,” but with a twist. Most proposals for contracting out involve turning over a former government service lock, stock and barrel to a single private company. In other words, a private monopoly is substituted for a public monopoly, with the only opportunity for competitive cost cutting or improvements in service arising every four or five years when the contract comes up for renewal.

The system of on-call judges offers the advantage of continuous competition among the service providers within a publicly funded system. Those already on the panel will have to maintain high standards in order to keep busy. Newly qualified judges will always be waiting in the wings for a chance to demonstrate their talents.

A system of pricing is the third innovation that public courts will have to adopt if they wish to become efficient players in the administration of justice. Civil litigants should pay the actual cost of the court services they consume. Like private firms, the public courts could tailor their fees to the services provided. A less experienced or less popular judge might be charged out at a lower rate, while a judge with particular expertise in an uncommon area of law might command a higher rate. In civil cases, the loser of the lawsuit could be ordered to pay the court costs, just as the loser can currently be ordered to pay the winner’s lawyer’s fees.

In criminal cases too, it could become a standard part of sentencing to require all individuals convicted of a crime to pay for the costs of their trials. Doing so would make prosecution of white collar crimes profitable for the criminal courts, addressing another common complaint about the criminal justice system.

The simple requirement to impose fees might go a long way toward making public court administrators focus more critically on exactly how they are spending their money. If the amount they had to charge in order to break even turned out to be greater than the fees being charged by private adjudication services, it would be obvious that there still would be fat to be trimmed from their operations. We would then have to ask, too, whether it’s necessary to have government providing this service at all, or whether it could be handled entirely by private enterprise.

It is easy to predict that there will be resistance to implementing these suggestions. There are many people with vested interests in the status quo — for example, today’s salaried judges and court staff. But whether they like it or not, change is inevitable. In fact, it’s already here. The best and brightest from the old system will adapt and continue to excel in their new environment. The stodgy and inflexible will tarry as long as they can in a deteriorating system and eventually pass into history. And that’s as it should be.


Letters

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      Vineland, Ontario, responds: January 21, 1997

,

      Ottawa, responds: January 26, 1997

, Olds

      , Alberta, responds: February 17, 1997

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    Burlington, Ontario, responds: March 11, 1997

Dr. Derek C. Askey, Vineland, Ontario, responds: January 21, 1997

Well, you got the judges’ robes right in your cartoons accompanying “Order in the courtroom,” but the gavels are WRONG. What gives here? More Americanization of Canada? Six cartoons of gavels, seven counting the cartoon in the table of contents, but only two scales of justice? And as if this wasn’t insult enough, another gavel pops up on page 18, this one in the left hand of, presumably, a British Judge of the High Court, in full periwig. In Canada, gavels are used only by auctioneers and chairpersons of committees, never by judges in courts of law.


G. Allan Taylor, MD, Ottawa, responds: January 26, 1997

I agreed with most of the points in your very thought-provoking article on the problems in our courts. I respectfully suggest however, that you may have strayed from the normally logical and informed line of thought, which I have become accustomed to as a reader of your articles, in your comments on the two-tiered legal system. I refer to your statement that the individual’s need for medical services, compared to legal services, is far less likely to arise because of his own actions.

I submit that, contrary to your assertion, most of the costs incurred in our so-called health care system are the consequence of voluntary acts of a self-inflicted nature. I base my opinion on 35 years experience in the practice of medicine both here in Ontario and the U.K. Take by way of example the huge toll of injury on our highways due primarily, but not exclusively, to alcohol abuse and the various diseases caused by cigarette smoking and substance abuse. I could name many others but these examples alone serve to place your statement in serious question.

Your very cogent and clear arguments for a two-tiered legal system are therefore the identical ones which make it imperative that we proceed in the same direction in medicine, Clayton Ruby notwithstanding!


Norbert M. Salamon, Olds, Alberta, responds: February 17, 1997

Introduction:

The monogram describes a minor and two major facets of the problems of courts in and for Canada. First, the author alludes to the overwhelming importance of the profession. Second, she describes certain shortcomings in the judiciary; and finally, she proffers some solutions to the problem of procedure within the system.

Discussion:

Without any ill feeling (which would be undeserved) towards Ms. Selick, I must take exception to her proposed notions on court processes, on judges, and on costs.

Part I: Unjustifiable egoism in the profession

In the opening Ms. Selick compares herself to a major conductor of affairs (“impresario”), which to my way of analysis describes the self-defined, self-importance of the legal profession (a.k.a. professional ego-centrism).

The legal profession has a logically unfounded rosy picture of itself. Its authority and its importance, from the Chief Justice of Canada to the lowest ranking bit player:
• a lawyer is an “impresario”(by self-definition)
• a judge has “constitutional powers” (notwithstanding epistemological contradiction: contingent v. essential nature/being)
•The Chief Justice (with his cohort at SCC) indicated that a judge (in regard to the Homolka tape case) has a constitutional right regarding evidence suppression. How could that be? In Canada all courts and judges are contingent creatures of legislatures and parliament. Neither a court nor a judge (as opposed to the U.S.) is a constitutional entity. Only constitutional entities have constitutional rights (or responsibilities/authorities).

Part II: Judges

Regarding judges, their behavior, their judgments’ lack of precedent based consistency, lack of logical/epistemological consistency, etc., Ms. Selick is rather quiet as to proffered solutions. Her desire for further education of judges seems to be a desire for political correctness, rather than logical or epistemological consistency. Ms. Selick does not point to the responsibility of the profession to charge judges for ill behavior at the Judiciary Council of Canada, nor does Ms. Selick propose a demand for punishment of judges by the Judiciary Council.

Part III: Court process

With respect to the process of court cases Ms. Selick suggests (as lately proposed/enacted by Ontario) a different venue as a deus ex machina. The question arises: What is her justification for such an optimistic prognosis?

l. The process:

The proffered civil dispute resolution service will have its own party defined rules – disposing on the present Rules of Civil Procedure. She indicates that the parties (we know she means the parties’ lawyers) will settle on the rules. What is the difference between the “new” and the “old” procedure?
• The “old” court system: Lawyers, benchers, law review commissions, and judges (also all lawyers) through attorney generals (a lawyer) write the rules – not for the benefit of the parties, not for the benefit of speedy conclusion for the disputes; but to ensure that members of the profession have large incomes. It is certain that in Canada, except for small claims court, 90 per cent or more of the population would not be able to make sense of the rules – another case of over-regulation by the state to ensure a minority’s distinct advantage.

• The proposed “new” system: Rules by lawyers.
Conclusion: The foxes are in charge of the chicken coop. No change!

2. Civil cases involving Constitutional provisions:

Ms. Selick has also conveniently glossed over any civil case which involves Constitutional provisions. The SCC and other courts have defined (for their own powers’ benefit what constitutes a court of competent jurisdiction. Dispute resolving services (privatized or Crown funded) are not competent to hear such cases.

3. The costs:

The lawyers would still charge the same, but the clients’ costs would go up, as they would be double billed for civil cases – the more than 50 per cent marginal tax-rate paid by taxpayers for the justice system and other services, of course, does not behoove the attorney generals of Canada to provide efficient court systems – in Ms. Selick’s view.

Moreover, it is possible that judges will decide that the proposed process is only a preliminary to “real court cases,” thereby just creating another step in bureaucratic mismanagement of the citizen’s interest.

Conclusion:

The article is right as far as pointing out shortcomings within the so-called justice system of Canada. The article is prejudiced in favor of lawyers, judges and their bureaucratic empires when discussing any reform of any shortcoming. There is no assurance that the proposed dispute resolution service would be faster, would be cheaper or would be more effective. Without a basic rewriting of rules, and of Court/Judges Acts there is no hope that the justice system would improve.

My proposals:

My proffered solution to non-criminal court procedure (as criminal procedure is under the authority of the Parliament of Canada)

1. All rules are written by non-lawyer citizens (chosen by lot?????) in the two official languages which must be comprehensible for at least 80 per cent of population (from age 16 on, excluding senility)

• The plea “no cause of action” is deleted from the rules (especially when against the Crowns)

• Judges are forbidden to change the rules.

• Truth (not scene construction – as in the O.J. Simpson trial) is the basis of a rational justice system.

2. Major fines for lawyers or other client representatives for not admitting to facts in dispute (e.g. the lawyer would end up paying – without offsetting billing to client – for any costs (including that of the Crown) due to negligence (or omission) in admitting to facts.

3. Any “knowledge of science” referred to in dispute must be unfalsifiable (a la Sir Carl Popper) – as the U.S. Supreme Court has lately demanded.

• would get rid of all “bogus” disputes (and bogus “experts,” e.g. breast implant, e.g. controversy over when a person is a person (from conception to death as defined by the Second Law of Thermodynamics and the DNA molecule).

4. All implied or actual contracts with citizens must meet the comprehensibility requirement of the rules in point 1 above.

5. Responsibility for one’s actions is a main notion within the system.

• e.g. the attorney general is responsible for consistency with constitutional provisions, if he attested that the statue, regulation, etc. (laws in general) are consistent with the Constitution, then he personally (not the Crown) is responsible for the court costs – running at approximately $6,000 per hour for federal judge presided courts in Canada (counting four hours of sitting time per day).

• e.g. the offending police officers, the Crown prosecutor of the recent Latimer SCC case should bear the costs of the last trial fiasco, as they knowingly aided and abetted in corrupting the court process. Such would be applicable to civil cases, too.

• A smoker is responsible for smoking, for it has been known for 200 to 300 years that smoking is unhealthy, not the tobacco companies.

6. Any laws which directly affect civil cases – be they personal (Divorce Act) or impersonal (Insurance Act) must meet the requisite of point 1 above.

It is probable that the above proposal would be called simplistic, especially by the profession, however, the proposed rules would certainly speed up the process – and cut costs.

Thank you for your time and consideration of the above.


Frank Gue, Burlington, Ontario, responds: March 11, 1997

Permit me to expand on your key point that the backlogs are not a legal, but an economic problem. As a factory production management specialist (with a hard-cover book out on the subject), I’ve recognized this for years as a straightforward production proposition, which is about as economic a problem as you can get, dealing with returns on investment, economic incentives, alternative uses of resources, and so on.

You will know, of course, that technology transfer is one of the most potent of improvement tools. I can offer some technology to help you.

1. Work in process (read: court backlogs) equals production rate times cycle time. “Rate” is cases cleared per period, while cycle time is from the opening to the closing of the court docket. Return on investment depends on turnover of assets, which is an algebraic restatement of the above “cycle time.” Successful firms keep cycle times low. Cycle times consist of as much as 99 per cent or more idle time — completely wasted slack time during which nothing whatever adds value. On behalf of Taxpayers Coalition I have just been through a conflict of interest case which illustrates this starkly. The case consumed eight months and forty thousand dollars, then was dealt with in about nine minutes of court time. In factories, ROI improvement is in large part a determined search for, and elimination of, slack or idle time. Schedule uncoordination, inattention to timing, suboptimization for local convenience, lack of consideration for other departments, and lack of overall firm objectives are among the main problems and should sound familiar to you; I could change a few words in parts of your article and any production planner in any factory would understand exactly what you are saying. Lesson: Find and remove the slack time . . . in either factories or courts.

2. The Backlog Syndrome causes human beings to want what we factory people call “the security blanket” — lots of work on hand. This enables us to mess up the sequence of production, inconvenience everyone for miles around, miss ship dates, waste labor moving unwanted stuff out of the way — I could go on for pages. You would recognize every word of it. Lesson: Plan the work to be done just in time, then work the plan.

3. The law of supply and demand (page 5 of your Economics 101 notes) fails to deal with an important special case. If a desirable service is thought to be “free” (health care, court services), the demand for it will tend toward infinity. We see this happening all around us and wonder why things like health care are out of cost control. Lesson: Introduce a visible, appreciable price into use of any system such as health or courts. No news to you; you say as much in your article.

4. Here’s one that is covered by Einstein’s remark of long ago, “Any sound principle, correctly stated, appears obvious.” The Economist once pointed out one of these obvious (except that I didn’t think of it, darn it) principles: The suppliers of a good or service must not be the ones to determine how much of the good or service shall be provided, and at what cost. Now think about public education. . . .

5. In any large organization there is a performance bell curve (page 46 of your statistics text). From five to 20 per cent of your personnel are incompetent or burned out or both. Five per cent for capable, hotly competitive private industries; 20 per cent or more for moribund, tenured, non-competitive monopolies or public enterprises (Public school teachers? University professors? Judges?) Lesson: Have a continuous program of performance evaluation and an objective of eliminating the bottom x per cent of personnel every year, where x is anything from five upward.

Hope this integrates a few ideas from another field of knowledge into whatever thought experiments you’re working with. Your interest in the efficiency and effectiveness of the Canadian court system is most welcome and doesn’t come a moment too soon.

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