Category: Law

Posts about law-making, the courts, and legal concepts in general

Adrian Harewood on Black History Month

As part of Black History Month, I attended a speech by Adrian Harewood, a journalist with the CBC. One of the things he spoke about was the importance of interrogating received versions of history – going back and uncovering the more complex story that has usually been streamlined into a simpler narrative. He gave the example of Viola Desmond, from Nova Scotia, who has arrested and tried for sitting in the portion of a movie theatre in New Glasgow designated for white people in 1946. People like to think such segregation was something that happened in the southern United States, but it seems it was something that happened in Nova Scotia too. He also talked about the two teenaged black women who did exactly what Rosa Parks later did in Montgomery, Alabama but who were deemed unappealing test cases by the black community, given that they seemed radical and unsavoury, in comparison with Rosa Parks herself.

There are a number of lessons to draw from all of this. It reinforces the important point that history serves a purpose, and that dominant narratives can be highlighted while more awkward counter-narratives are suppressed. For instance, the second world war is often presented as a response to the Holocaust, whereas the historical evidence for that claim is weak. Indeed, Canada refused to accept at least some Jewish refugees during WWII. Similarly, while people are quick to point out the war crimes committed by the Axis powers, they are much more hesitant to consider whether the indiscriminate bombing of German civilians was a war crime. Similarly, embarrassments like the 1967 Klippert decision of the Supreme Court of Canada are not much mentioned.

We should not allow ourselves to get too comfortable with official histories that only tell the stories that flatter us. It is only be recognizing the grave errors in our own histories that we can really appreciate our own potential for error. When we recognize that people who we admire were dead wrong about critical moral issues in the past, we also open our own minds to the possibility that we are passively accommodating – or even facilitating – grave injustice today.

Born this way

I don’t really understand why people make such a big fuss over the question of whether homosexuality is something that people are ‘born with’ or whether it is something they choose. I acknowledge that it is a factual question that is interesting to answer, but I don’t see why it is morally significant.

There’s nothing wrong with being gay if it is an inherent part of your biology, and there is nothing wrong with being gay if it is a conscious choice or unconscious response to your experiences and societal context. What makes any kind of sexual activity ethical is the meaningful consent of the participants, not the characteristics those participants have. Similarly, when it comes to the roles couples play within society (including as upbringers of children), I don’t see why sexual orientation has any relevance that justifies different treatment, either socially or under the law.

Opposition to homosexuality seems to be pure prejudice, plain and simple – often religiously motivated. Perhaps that explains something about why people are obsessed with the nature/choice distinction. If you are personally deeply opposed to homosexuality, see others doing it, and believe that it is a choice, you might feel personally bothered or insulted by the choice you think they are making.

Of course, even if you happen to be the parent, priest, or legislator of the person in question, the way they choose to live their romantic and sexual life is really not something you have any legitimate claim to controlling. Other people like things that you don’t. Get over it.

Oversight over institutions of armed power

On Yes, Prime Minister, a character describing a situation in which a document was leaked discusses the difference between what you do when you really want to find the source of a leak and what you do when it is all just for show. When it is for show, he says, you conduct a leak inquiry. If it is for a serious investigation, you call in ‘Special Branch’.

Reading through the Wikipedia entry on ‘Special Branch’ gave me a bit of pause. It seems like the term is used to refer to two different types of sub-organizations, within broader security structures like national police forces and armies.

Outward intelligence gathering

One sort of Special Branch is the macho Jack Bauer sort that wears flak jackets and drops in on terrorists from helicopters. They are also the ones with the machines for listening to private phone calls and reading private emails, back doors into supposedly confidential databases, and other such legally dubious trickery.

Having some kind of organization of this sort is important – especially for keeping genuinely dangerous things like biological and nuclear weapons away from terrorists. At the same time, giving such an organization an increasingly broad mandate just increases the risk that the organization itself will become abusive, or that the intelligence it collects will be used for inappropriate purposes.

There has to be some kind of meaningful, outside, civilian scrutiny of such organizations. If they are allowed to sit up at the top of the chain deciding who can trust who, we cannot allow them to be a secretive band of unknown people. It may render them less effective as an intelligence organization, to be subject to civilian oversight, but it is ultimately important for the security of society that this be so.

Quite possibly, governments shouldn’t have any organizations that they are not prepared to appear before a fairly elected legislature (in secret, perhaps) and answer detailed questions about.

Internal oversight

The other sort of Special Branch answers the question: Quis custodiet ipsos custodes? They are a response to the reality that organizations like armies and police forces attract bullies – people who are themselves attracted to power. At times, such people will abuse that power. That danger is increased enormously when the people are put within structures that will protect them, regardless of what they do. If the police force protects officers who use excessive force, their violent tendencies are likely to get worse.

Having a Special Branch to check for this kind of corruption in the rest of the service makes a lot of sense, and is an important check on police power. After all, a bad police officer is a scary thing. They are armed with weapons and power, and the judge will almost always take their word for how a situation went (unless there are photos or a video).

Changing balance

On Yes, Prime Minister, I think they were talking about the internal sort of Special Branch, looking for wrongdoing within powerful organizations. These days, I fear the outward-looking type of Special Branch has grown more powerful by comparison, partly by capitalizing on the fear people have of terrorism (despite the tiny chance of being a victim).

When people are fearful of non-governmental forces, they can easily err and make the government overly mighty. People also need to maintain in their minds the corresponding fear of abuse by government itself. The government is so powerful that it can do considerable harm by accident, and its control over information is such that we may never really know what accidents or abuse have taken place.

Terrorists can kill some innocent civilians – maybe a lot if they get hold of something dangerous. But the police can create a police state. They can seize the government with one of their own by force, if the other institutions of the state become weak enough. We need independent people watching over them more than we need them to be looking into the local radical cell.

Ontario and offshore wind

Yesterday was an insane day – guest lecture, work, then a commercial photo project – so I have fallen behind on blog updates. Apologies.

That said, how crazy is it that the government of Ontario has called for a moratorium on offshore wind farms? This is a province with a government that is relatively serious about climate change. It is also a province that has not yet phased out coal, despite the many serious risks associated with it, and which is pondering new nuclear plants, despite all the special risks they involve. Writing in The Globe and Mail, Jatin Nathwani implausibly suggested that offshore wind farms raise ‘red flags’. A savvier letter to the editor declared that: “If offshore wind farms are enough to raise red flags about the environment, then fossil fuels should be raising flags that are redder than red.”

Wind farms would seem like the least of their worries, and actually a contribution to solving their troubles. Of course, NIMBY forces are strong, and politicians are thinking about elections.

P.S. Also in the news, yet more reason to worry about methane and permafrost: Melting permafrost to emit carbon equal to half all industrial emissions: study.

Prosecuting high-level Western war criminals

Writing in the Ottawa Citizen, Dan Gardner argues convincingly that the admission of former President Bush that he ordered people tortured makes him a war criminal who can be prosecuted as such:

Do laws apply to the United States and its president as they do to other nations and men? On the weekend, Swiss officials were very nearly forced to answer that explosive question. Depending on George W. Bush’s travel schedule, Canadian officials could be put on the spot next.

In his memoirs, published late last year, and in subsequent interviews, Bush explicitly said he ordered officials to subject terrorism suspects to waterboarding and other torture techniques. The fact that he had done so wasn’t much of a surprise. There was already heaps of evidence implicating the Bush administration, up to and including the president. What was shocking was that Bush admitted it. He even seemed to boast about it. “Damn right,” he said when Matt Lauer asked whether he had ordered waterboarding.

Gardner goes on to recognize that Bush is unlikely to actually be charged by any state, given how much doing so would probably harm that state’s bilateral relationship with the United States.

Under the terms of the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT), an official doesn’t need to engage in torture directly to be in contravention. The torture needs to happen at “the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.

By that standard, there are probably a lot of war criminals around. It’s not clear whether President Obama has stopped all American-initiated interrogation techniques that constitute torture. Similarly, given what is known about the Afghan security services, it is quite possible that officials from states including Canada have violated international law by handing over prisoners to people who were likely to torture them (potentially violating Part II of the Third Geneva Convention).

In a related story, British journalist George Monbiot has helped to establish a bounty for those who attempt to arrest former British Prime Minister Tony Blair for committing war crimes.

The CRTC and UBB

Regarding all the furor about usage based billing, I don’t think that basic concept is really so objectionable. Someone who uses 100 times more bandwidth than someone else should probably pay more for it.

What I object to is the rate at which the big telecommunication companies are being allowed to charge for bandwidth: $1.90 a gigabyte (GB), above a low limit. Movies, especially, are rather large. One ordinary definition movie from iTunes is about 1.5 GB – 2.0 GB. High definition movies are even more. The cost of actual providing the bandwidth is much lower, and letting the big firms charge such a high amount risks choking off promising new uses for the internet, such as increased videoconferencing. My relatively modest internet use in December (67 GB, well below my previous 200 GB cap) would have resulted in an added charge of nearly $80 to my monthly bill.

It would be fine to have an internet pricing regime that included some variability, it’s just important that it be set up in a way that allows upstart firms to challenge monopoly providers, lowering costs for consumers and improving service. Letting the big companies squeeze their competitors to death with hefty overuse fees doesn’t serve the best interests of Canadians.

[Update: 11:24pm] Michael Geist has a good piece about all of this: Fixing Canada’s Uncompetitive Internet.

Outliers: The Story of Success

One thing that sets apart the writing of Malcolm Gladwell is the ease with which it is devoured. His books always provide the reader with the sense that they are taking in important new information, and doing so unusually quickly and easily. In Outliers: The Story of Success, Gladwell argues convincingly the the level of success people achieve has an enormous amount to do with the conditions in which they lived. How your parents raise you is important, as is the cultural legacy you inherit. Even arbitrary-seeming things like when in the year you were born can have a demonstrable effect, particularly in sports.

This book has been analyzed to death in the popular press, so there isn’t much point in me recapping it. Talking about highly successful people like Michael Jordan and Bill Gates, Gladwell argues that:

[They] appear at first blush to lie outside ordinary experience. But they don’t. They are products of history and community, of opportunity and legacy. Their success is not exceptional or mysterious. It is grounded in a web of advantages and inheritances, some deserved, some not, some earned, some just plain lucky – but all critical to making them who they are. The outlier, in the end, is not an outlier at all.

In the course of his examination, Gladwell reaches practical conclusions for both individuals and societies. As an individual, if you wish to prosper you must practice an exceptional amount – effort put in can be the most important factor. For society at large:

To build a better world we need to replace the patchwork of lucky breaks and arbitrary advantages that today determine success – the fortunate birth dates and accidents of history – with a society that provides opportunities for all.

He provides some concrete examples of how that could be done: for instance, by delaying the streaming of young children by talent, by providing summer school for low-income children, by encouraging children to assert themselves around and question adults, and so on.

I only have a few quibbles with the book. Sometimes, Gladwell uses vague language. What does it mean to say that $X were ‘involved’ in mergers and acquisitions during the 1980s? Occasionally, he speculates beyond what the evidence he includes can justify. I also think Gladwell is wrong to say that a Boeing 747 contains “212,000 kilograms of steel”. Aluminum is a lot more likely.

Gladwell’s book is engaging, using techniques that many academics would shun as showmanship. For instance, Gladwell sometimes makes a bold promise early in a chapter, saying he will prove an unlikely-seeming statement to be true (“it is possible to… predict the family background, age, and origin of [New York City’s] most powerful attorneys, without knowing a single additional fact about them”), or adds a bit of theatre (“in this chapter, we’re going to conduct [an aircraft] crash investigation”). Partly through such techniques, the book gets across some interesting examples and arguments quickly. It is particularly interesting to see him explain situations in which things that seem like disadvantages – like anti-Semitism in New York law firms – turn out to be highly advantageous to the people who you would expect to be disadvantaged (because they ended up going into areas of law shunned by the established firms, which became important and profitable).

Gladwell’s message is simultaneously empowering and disempowering. By revealing some apparently important underlying dynamics, he may help readers decide how to focus their energies. At the same time, he points out how a lot of the characteristics our lives will have emerge predictably from pre-set characteristics which we cannot alter or control. Indeed, by influencing our thinking about the sources of success, Gladwell affects the inputs that go into our reasoning about ethics. In particular, if people achieve high levels of financial success largely because of arbitrary factors outside their control (or fail financially for the same reasons), the argument for income redistribution looks a lot stronger.

[Update: 7 February 2011] I reviewed another of Gladwell’s books previously: The Tipping Point: How Little Things Can Make a Big Difference.

Who harvests America’s food?

Anyone who is concerned with food security in the United States should be concerned about immigration policy as well:

The government estimates that more than 80% of America’s crop workers are Hispanic (mostly Mexican), and more than half are illegal aliens. But Rob Williams, the director of the Migrant Farmworker Justice Project (which represents farmworkers in court), considers those numbers grossly misleading because they rely on self-reporting. He estimates that more than 90% of farmworkers are sin papeles (without papers)[.]

Much of the abuse suffered by these workers apparently relates directly to immigration law, since the constant threat of deportation strips workers of any ability to demand better work conditions.

Citizens arrest

There are good reasons why we restrict powers like arrest to trained agents of the government. While there are certainly many problems with the conduct of police and oversight over them, at least they have training and experience and there are mechanisms in place to evaluate their actions. By contrast, empowering every shopkeeper and random citizen to physically detain people who they think are criminals seems dangerous and unnecessary. In a few cases, it may be the least bad option available, but I think the onus should be on the person performing the arrest to justify it later.

In the grand scheme of things, shoplifting seems a lot less significant than physically detaining somebody against their will. Saying that as soon as somebody steals from you, you have the right to effectively kidnap them seems liable to create harm and abuse. Kidnapping is rightly considered a more serious offense than shoplifting, and I don’t think the fact that someone committed a crime before being thus apprehended has all that much legal or moral significance. It smacks of the sort of crude revenge-based legal systems where people get their hands lopped off (or get thrown into the terrible conditions of prison, but that is another discussion).

That’s why I think it is wrongheaded when people argue that David Chen – the Toronto shopkeeper who physically detained a shoplifter – should never have been criminally charged. When you opt to take the law into your own hands, you are effectively claiming that the situation is so important and so urgent that you should take over from the actual authorities. It seems to me that such cases are rare and involve things like real risks of injury or death – not the danger of losing a few dollars worth of merchandise.

If you feel that you need to usurp the powers of the police, it just seems sensible to expect that you may need to justify that choice in a court of law. They may well find that you behaved reasonably. But the fact that there will be some after-the-fact oversight could in itself act as a minor deterrent to abuses of power.

Bell, usage based billing, and TekSavvy

It seems the Canadian Radio-television and Telecommunications Commission (CRTC) has let the dominant internet service provider (ISP) Bell largely ruin the smaller ISP Teksavvy:

From March 1 on, users of the up to 5 Mbps packages in Ontario can expect a usage cap of 25GB (60GB in Quebec), substantially down from the 200GB or unlimited deals TekSavvy was able to offer before the CRTC’s decision to impose usage based billing…

We encourage you to monitor your usage carefully, as the CRTC has imposed a very high overage rate, above your new monthly limit, of $1.90 per gigabyte ($2.35 per gigabyte in Quebec).

Forcing big companies like Bell to lease capacity to companies like Teksavvy seems very smart, as it helps prevent dominant monopolies from forming. Unfortunately, such arrangements don’t have much meaning if you also allow the big company to force their own policies on the smaller companies that are leasing from them.

Consider the case of a customer using 100 GB a month – half of Teksavvy’s previous low cap. Before, they would have paid $44.30 with tax. Under the new rules, they would pay that plus another $142.50 in additional data usage fees.