Saturday, February 28, 2015
Burning question
What exactly do we expect CSIS to do with a possible data dump of every piece of information held by every federal government agency when at last notice, it was struggling to find the capacity to check e-mails for malware?
Saturday Morning Links
Assorted content for your weekend reading.
- Bryce Covert weighs in on the IMF's latest study showing a connection between stronger trade unions and greater income equality:
- But sadly, we're seeing little on that front in the places which can most afford it. On that front, CBC reports on the massive and growing problems of poverty and inequality in Toronto, while Sara Mojtehedzadeh surveys some much-needed solutions. And David Ottewell and Owen Bennett discuss the clear connection between cuts to housing programs, and rapidly increasing homelessness in the UK.
- Eric Reguly comments on the effect of monetary policy in exacerbating inequality - but while Reguly is right to note that we'd be far better off fighting recessions through helicopter drops than quantitative easing, it's the lack of the former which puts central banks in the position of having to use the tools at their disposal. And Andrew MacLeod looks at the kid-glove treatment of mortgage insurance providers in B.C. as just another example of the financial sector receiving a perpetual get-out-of-consequences-free card.
- Ben White reports on Elizabeth Warren's important challenge to the TPP and other corporate power agreements.
- And finally, Mark Hooghe, Sofie Marien, and Jennifer Oser argue that we shouldn't take hashtag activism and other online communications tools as a substitute for direct representation in decision-making, particularly since they may only perpetuate existing disparities in reach and power.
- Bryce Covert weighs in on the IMF's latest study showing a connection between stronger trade unions and greater income equality:
While it can be hard to say for sure whether the decline in unionization is a direct cause of growing income inequality, they found that it is a “key contributor” to steep increases in income at the top, which holds true even after they controlled for other factors such as shifts in political power, labor market trends like the growing power of Wall Street and deindustrialization, and top marginal tax rates.- And Enda Curran and Simon Kennedy highlight how even governments which face little democratic opposition are responding somewhat to the public's demand to reduce inequality.
The authors also found that reductions in country’s minimum wages have increased inequality “considerably.”
Why would lower unionization rates have such an impact? The authors explain it in two different ways. Lower union density reduces workers’ bargaining power, which means corporate managers and shareholders stand to see higher returns if workers don’t have the power to ask for a bigger share. A lack of bargaining power may also mean that workers have less influence on corporate decisions, which could led to policies that better benefit top earners like higher executive pay. Unions also play a political role and can push parties to pass policies that would better redistribute income, but if they are weakened they don’t have the same influence.
- But sadly, we're seeing little on that front in the places which can most afford it. On that front, CBC reports on the massive and growing problems of poverty and inequality in Toronto, while Sara Mojtehedzadeh surveys some much-needed solutions. And David Ottewell and Owen Bennett discuss the clear connection between cuts to housing programs, and rapidly increasing homelessness in the UK.
- Eric Reguly comments on the effect of monetary policy in exacerbating inequality - but while Reguly is right to note that we'd be far better off fighting recessions through helicopter drops than quantitative easing, it's the lack of the former which puts central banks in the position of having to use the tools at their disposal. And Andrew MacLeod looks at the kid-glove treatment of mortgage insurance providers in B.C. as just another example of the financial sector receiving a perpetual get-out-of-consequences-free card.
- Ben White reports on Elizabeth Warren's important challenge to the TPP and other corporate power agreements.
- And finally, Mark Hooghe, Sofie Marien, and Jennifer Oser argue that we shouldn't take hashtag activism and other online communications tools as a substitute for direct representation in decision-making, particularly since they may only perpetuate existing disparities in reach and power.
Friday, February 27, 2015
Friday Morning Links
Assorted content to end your week.
- Frank Graves writes that we're seeing the end of progress for all but the wealthiest few - and that we all stand to lose out if we come to believe that progress for the rest of us is impossible:
- Of course, the most prominent current example of that is their terror bill. On that front, the Ottawa Citizen rightly questions the Cons' rush to impose massive new powers with as little study as possible. Louise Elliott reports on how C-51 ignores the Supreme Court's past decisions about security certificates, while upwards of 100 professors in law and related disciplines have released a letter calling for the bill to be amended or scrapped. And both Don Martin and Michael Harris call out the Cons for their selective definition of a threat (at least before universal surveillance powers are put in place).
- Finally, Health Poverty Action examines the global cost of the war on drugs. Anna Mehler Paperny discusses the social and economic consequences of a lack of accessible child care. And the Guardian reminds us that ignoring homelessness doesn't make its human costs disappear.
- Frank Graves writes that we're seeing the end of progress for all but the wealthiest few - and that we all stand to lose out if we come to believe that progress for the rest of us is impossible:
There is a virtual consensus that a growing and optimistic middle class is a precondition for societal health and economic prosperity. This consensus position reflects the historical record of when nations succeed. Yet if this consensus is correct, we note with alarm that almost nobody thinks that these conditions are in place in Canada. To the contrary, the consensus view is that the middle class is shrinking and pessimistic.- Meanwhile, Spiegel interviews Naomi Klein about the choice between ever-increasing resource consumption and a sustainable planet:
...
There are important barometers of confidence and we have tested these the same way in repeated measures for twenty years or so; the trajectories are clear and revealing. Never in our tracking has Canada had such a gloomy outlook on the economic future. Never in our tracking has the sense of progress from the past been so meager.
SPIEGEL: So you're saying that a new era of consumption and energy use began precisely at the moment when sustainability and restraint would have been more appropriate?- Naturally, the Cons are going out of their way to make sure nobody's able to talk about either growth or sustainability. On that front, Kristie Smith reports on the Cons' refusal to allow our elected representatives to assess their woeful economic record. And Carol Linnitt talks to Donald Gutstein about their determination to silence anybody trying to make the case to save our planet.
Klein: Exactly. And it was at precisely this moment that we were also being told that there was no longer any such thing as social responsibility and collective action, that we should leave everything to the market. We privatized our railways and the energy grid, the WTO and the IMF locked in an unregulated capitalism. Unfortunately, this led to an explosion in emissions.
...
SPIEGEL: Let's go back to our first question: Why have people been unable to stop this development?
Klein: We have systematically given away the tools. Regulations of any kind are now scorned. Governments no longer create tough rules that limit oil companies and other corporations. This crisis fell into our laps in a disastrous way at the worst possible moment. Now we're out of time. Where we are right now is a do-or-die moment. If we don't act as a species, our future is in peril. We need to cut emissions radically.
...
SPIEGEL: You're saying that all the small steps -- green technologies and CO2 taxation and the eco-behavior of individuals -- are meaningless?
Klein: No. We should all do what we can, of course. But we can't delude ourselves that it's enough. What I'm saying is that the small steps will remain too small if they don't become a mass movement. We need an economic and political transformation, one based on stronger communities, sustainable jobs, greater regulation and a departure from this obsession with growth. That's the good news. We have a real opportunity to solve many problems at once.
SPIEGEL: You don't appear to be counting on the collective reason of politicians and entrepreneurs.
Klein: Because the system can't think. The system rewards short-term gain, meaning quick profits. Take Michael Bloomberg, for example ...
SPIEGEL: … the businessman and former New York City mayor …
Klein: … who understood the depths of the climate crisis as a politician. As a businessman, however, he chooses to invest in a fund that specializes in oil and gas assets. If a person like Bloomberg cannot resist the temptation, then you can assume that the system's self-preservation capacity isn't that great.
- Of course, the most prominent current example of that is their terror bill. On that front, the Ottawa Citizen rightly questions the Cons' rush to impose massive new powers with as little study as possible. Louise Elliott reports on how C-51 ignores the Supreme Court's past decisions about security certificates, while upwards of 100 professors in law and related disciplines have released a letter calling for the bill to be amended or scrapped. And both Don Martin and Michael Harris call out the Cons for their selective definition of a threat (at least before universal surveillance powers are put in place).
- Finally, Health Poverty Action examines the global cost of the war on drugs. Anna Mehler Paperny discusses the social and economic consequences of a lack of accessible child care. And the Guardian reminds us that ignoring homelessness doesn't make its human costs disappear.
Thursday, February 26, 2015
Thursday Morning Links
This and that for your Thursday reading.
- Jacob Hacker and Paul Pierson link inequality and climate change as massive problems which are generated by political choices (and thus amenable to correction through the political system):
- Michal Rozworski notes that while Canada's wage picture isn't quite as bad as the U.S.' over the past two decades, it's most certainly nothing to celebrate - particularly since any gains were tied up almost entirely in since-deflated oil prices.
- Finally, Haroon Siddiqui laments the Cons' wilful stupidity in dealing with the Middle East. And Paul Adams calls out the tantrum-based foreign policy which includes pulling funding from friendly service providers for having the nerve to question John Baird.
- Jacob Hacker and Paul Pierson link inequality and climate change as massive problems which are generated by political choices (and thus amenable to correction through the political system):
Rising inequality is no more natural than global warming. And just as with global warming, our biggest fear should be that it becomes increasingly self-reinforcing — not because of some “natural” economic process, but because economic power begets political power, which can be used to further increase economic advantage. Look around, and the evidence that this is a real threat abounds. To cite just one example of many, the Koch brothers network, led by businessmen who are committed libertarians opposed to any effort to reduce inequality, are planning to spend almost $1 billion in next year’s election.- Frances Woolley writes that tax-free savings accounts - and particular the expanded version which the Cons are planning to push soon - represent both a deliberate choice to exacerbate inequality, and one of the most devastating attacks yet on Canada's federal revenue system:
In other words, read beneath the headline of Leonhardt’s article and you have an argument for greater alarm about the toxic relationship between rising inequality and the dysfunction of the federal government — a message exactly opposite of the one that the inequality deniers want to hear.
RRSPs leave a legacy of tax revenue to future governments. Increasing TFSA contribution limits does just the opposite – it creates an investment vehicle that is ripe for abuse, whether by generating super-normal returns, or by sheltering income in a TFSA while claiming government benefits. At the same time, it deprives future governments of the opportunity to tax investment income.- But then, individual savings likely aren't the best means of ensuring retirement security in any event, as David MacDonald finds that a retirement system based on mutual funds diverts massive amounts of savings toward financial sector compared to the alternative of effective pension plans.
...
There’s a saying in policy circles: “the costs are the benefits.” For some, the revenue foregone by expanding TFSAs is a cost. For others, it’s a benefit. Prime Minister Stephen Harper is on the record as believing in small government. One sure-fire way to shrink governments is to deprive them of revenue. Doubling the TFSA limit will do that. Not now, and not in a year from now. But in 10, 20, or 30 years’ time, the doubling of the TFSA limit will gradually erode the ability of Canadian governments to raise revenue, redistribute income, and pay for public services.
- Michal Rozworski notes that while Canada's wage picture isn't quite as bad as the U.S.' over the past two decades, it's most certainly nothing to celebrate - particularly since any gains were tied up almost entirely in since-deflated oil prices.
- Finally, Haroon Siddiqui laments the Cons' wilful stupidity in dealing with the Middle East. And Paul Adams calls out the tantrum-based foreign policy which includes pulling funding from friendly service providers for having the nerve to question John Baird.
New column day
Here, condensing this post on the risks of allowing CSIS to self-assess the scope of Canadians' Charter rights under C-51.
For further reading...
- Again, the go-to source for analysis of C-51 is Craig Forcese and Kent Roach's site here.
- Clayton Ruby and Nader Hasan's analysis is here.
- John Mueller and Mark Stewart duly reject the attempt to invent some existential terrorist threat.
- Dale Smith muses about the Cons' rush to ram C-51 through without analysis here. PressProgress challenges the conventional wisdom as to the supposed popularity of the bill here. And the Star appeals for a thorough study of the bill before it gets pushed through Parliament.
- Jorge Barrera reports on the bill's impact on First Nations here, while Peter O'Neil notes that indigenous activists are already being singled out for extreme state interference. And Geoffrey York highlights how security services around the world spend far more time tracking and interfering with peaceful domestic dissent than anything which could be plausibly considered "terrorism".
- Finally, for more on the warped standard being applied to evaluate the constitutionality of federal legislation, see again Simon Fodden's post here, along with Justin Ling's story here.
For further reading...
- Again, the go-to source for analysis of C-51 is Craig Forcese and Kent Roach's site here.
- Clayton Ruby and Nader Hasan's analysis is here.
- John Mueller and Mark Stewart duly reject the attempt to invent some existential terrorist threat.
- Dale Smith muses about the Cons' rush to ram C-51 through without analysis here. PressProgress challenges the conventional wisdom as to the supposed popularity of the bill here. And the Star appeals for a thorough study of the bill before it gets pushed through Parliament.
- Jorge Barrera reports on the bill's impact on First Nations here, while Peter O'Neil notes that indigenous activists are already being singled out for extreme state interference. And Geoffrey York highlights how security services around the world spend far more time tracking and interfering with peaceful domestic dissent than anything which could be plausibly considered "terrorism".
- Finally, for more on the warped standard being applied to evaluate the constitutionality of federal legislation, see again Simon Fodden's post here, along with Justin Ling's story here.
Wednesday, February 25, 2015
Wednesday Morning Links
Miscellaneous material for your mid-week reading.
- Lee-Anne Goodman reports on studies from both the Parliamentary Budget Officer (PDF) and the Broadbent Institute (PDF) showing that enlarged tax-free savings accounts stand to blow a massive hole in the federal budget while exacerbating inequality. And PressProgress documents and refutes the pitiful response from the right.
- But then, I suppose we shouldn't expect the Cons' actions on TFSA to differ from their usual mismanagement. And Scott Clark and Peter DeVries write that the Cons' tax baubles in general have accomplished nothing useful, while Ricarda Acuna notes that Alberta (as the exemplar of the Cons' low-tax, high-inequality philosophy) is paying a heavy price for a PC government's refusal to collect appropriate revenue or preserve the value of public assets.
- Tim Dickinson writes that Stephen Harper's bluster about "superpower" status has officially fizzled out. And Karl Nerenberg outlines the main themes of the Cons' stay in power - and how they reflect a fundamental clash between Harper's whims and Canadian values.
- Bryce Covert reports on the billions of dollars siphoned out of middle-class retirement funds every year by the U.S.' financial services industry, while also pointing the difficulties in reining in such a lucrative rent-seeking operation. And Bill Black exposes how HSBC's CEO used tax evasion techniques to hide his own pay from his peers (h/t to Cory Doctorow).
- Finally, Tim Harper highlights the irony in the Cons' reliance on the courts to be the sole arbiters as to the validity of CSIS actions up to and including targeted killings when the same government doesn't believe judges are qualified to deliver criminal sentences. And Justin Ling reports on the NDP's efforts to make sure C-51 isn't rammed through Parliament without serious scrutiny, while Kady O'Malley notes that the Cons' plan is to avoid letting experts be heard.
- Lee-Anne Goodman reports on studies from both the Parliamentary Budget Officer (PDF) and the Broadbent Institute (PDF) showing that enlarged tax-free savings accounts stand to blow a massive hole in the federal budget while exacerbating inequality. And PressProgress documents and refutes the pitiful response from the right.
- But then, I suppose we shouldn't expect the Cons' actions on TFSA to differ from their usual mismanagement. And Scott Clark and Peter DeVries write that the Cons' tax baubles in general have accomplished nothing useful, while Ricarda Acuna notes that Alberta (as the exemplar of the Cons' low-tax, high-inequality philosophy) is paying a heavy price for a PC government's refusal to collect appropriate revenue or preserve the value of public assets.
- Tim Dickinson writes that Stephen Harper's bluster about "superpower" status has officially fizzled out. And Karl Nerenberg outlines the main themes of the Cons' stay in power - and how they reflect a fundamental clash between Harper's whims and Canadian values.
- Bryce Covert reports on the billions of dollars siphoned out of middle-class retirement funds every year by the U.S.' financial services industry, while also pointing the difficulties in reining in such a lucrative rent-seeking operation. And Bill Black exposes how HSBC's CEO used tax evasion techniques to hide his own pay from his peers (h/t to Cory Doctorow).
- Finally, Tim Harper highlights the irony in the Cons' reliance on the courts to be the sole arbiters as to the validity of CSIS actions up to and including targeted killings when the same government doesn't believe judges are qualified to deliver criminal sentences. And Justin Ling reports on the NDP's efforts to make sure C-51 isn't rammed through Parliament without serious scrutiny, while Kady O'Malley notes that the Cons' plan is to avoid letting experts be heard.
Tuesday, February 24, 2015
Tuesday Morning Links
This and that for your Tuesday reading.
- Nora Loreto rightly challenges the instinct to respond to tragedy with blame in the name of "responsibility", rather than compassion in the interest of making matters better:
- Tom Sandborn reports on a few cases of employers being held to account for workplace deaths. But Lydia DePillis notes that in other areas, employers are severely restricting workers' ability to chart their own futures by attaching non-compete conditions to a wide range of jobs.
- Carol Linnitt highlights some good scientific advice from our federal civil service that's managed to find its way into the public eye, as officials have thoroughly rejected Kinder Morgan's failure to account for the impact of oil tankers on whales. And in a similar vein, Paola Loriggio reports on the Transportation Safety Board's observation that the Cons have done nowhere near enough to ensure rail safety after the Lac-Megantic disaster.
- Finally, Michael Harris discusses how Stephen Harper is playing Canadians for suckers in trying to scare us into keeping him in power. And Kent Roach comments on the need for an adult conversation about security, in stark contrast to the Cons' fearmongering talking points.
- Nora Loreto rightly challenges the instinct to respond to tragedy with blame in the name of "responsibility", rather than compassion in the interest of making matters better:
Blame is the projection of grief, sadness or fear. It is the projection of our own inadequacies; of our own feelings of, "oh god, that could be my kid" wrapped up in "thank god I'm a better parent than that." It pretends that all things are equal, that all family situations are equal and all children are essentially the same.- Paul Krugman eviscerates the myth that decades of declining wages as a share of income are the result of skill mismatches and education issues rather than a choice to concentrate wealth in the hands of the few:
But it’s malicious. Blame, when targeted towards individuals, shifts the focus to their perceived personal failings. It starts from a place that believes that some parents just don’t love their children as much as others.
When applied to the proper structures, the process of applying blame changes entirely. Why are Indigenous children on reserve ten times more likely to die in a fire? Is it because a single First Nation stopped paying for fire services (because those fire services weren't being delivered)? Or is it because Canada still refuses to fund First Nations communities properly leaving local leadership to be in a perpetual state of balance, ready to collapse at any moment?
And how could household debt ballooning, good jobs disappearing and social services evaporating not have an effect on the already precarious lives of many parents?
Personal blame is a function of neoliberalism. Neoliberalism tells individuals that there is no such thing as community and that you are wholly responsible for your own decisions. It ignores broader social forces, like what happens when parents can’t make ends meet and are forced to work longer just to get by. It erases the fact that we are not equal and society demands minimal effort from some and maximum effort from others.
It also tells us that there is no one left to help you: not the state, not your neighbours. It places enormous strain on grandparents, aunts and uncles or close friends and other family. It erases the thousands of people who are ready to help regardless of the circumstances.
(W)hile the education/inequality story may once have seemed plausible, it hasn’t tracked reality for a long time. “The wages of the highest-skilled and highest-paid individuals have continued to increase steadily,” the Hamilton Project says. Actually, the inflation-adjusted earnings of highly educated Americans have gone nowhere since the late 1990s.- Meanwhile, as Krugman notes, the solutions to inequality are far from complicated (even if we know they won't be implemented without a fight from a privileged few who consider themselves above the rest of us). On that front, Scott Santens looks at new evidence that cash transfers to the people who need it most produce massive social and economic gains. Lawrence Mishel writes that wage increases can have much the same effect. And Justin Worland reports on polling showing massive U.S. support for a more progressive tax system.
So what is really going on? Corporate profits have soared as a share of national income, but there is no sign of a rise in the rate of return on investment. How is that possible? Well, it’s what you would expect if rising profits reflect monopoly power rather than returns to capital.As for wages and salaries, never mind college degrees — all the big gains are going to a tiny group of individuals holding strategic positions in corporate suites or astride the crossroads of finance. Rising inequality isn’t about who has the knowledge; it’s about who has the power.Now, there’s a lot we could do to redress this inequality of power. We could levy higher taxes on corporations and the wealthy, and invest the proceeds in programs that help working families. We could raise the minimum wage and make it easier for workers to organize. It’s not hard to imagine a truly serious effort to make America less unequal.But given the determination of one major party to move policy in exactly the opposite direction, advocating such an effort makes you sound partisan. Hence the desire to see the whole thing as an education problem instead. But we should recognize that popular evasion for what it is: a deeply unserious fantasy.
- Tom Sandborn reports on a few cases of employers being held to account for workplace deaths. But Lydia DePillis notes that in other areas, employers are severely restricting workers' ability to chart their own futures by attaching non-compete conditions to a wide range of jobs.
- Carol Linnitt highlights some good scientific advice from our federal civil service that's managed to find its way into the public eye, as officials have thoroughly rejected Kinder Morgan's failure to account for the impact of oil tankers on whales. And in a similar vein, Paola Loriggio reports on the Transportation Safety Board's observation that the Cons have done nowhere near enough to ensure rail safety after the Lac-Megantic disaster.
- Finally, Michael Harris discusses how Stephen Harper is playing Canadians for suckers in trying to scare us into keeping him in power. And Kent Roach comments on the need for an adult conversation about security, in stark contrast to the Cons' fearmongering talking points.
Monday, February 23, 2015
On constitutional questions
Most of the analysis surrounding the Cons' terror bill so far has assumed that CSIS' powers will be interpreted based on a plain reading of the legislation. Under this reading of C-51, any action which could violate the Charter or other Canadian law would only be authorized by a warrant, meaning that deprivations of rights and freedoms would be subject to judicial oversight (however flawed the process itself may be). In contrast, CSIS' authority to act unilaterally would be limited to intrusions on property or other matters which don't affect Charter rights or legal entitlements.
But that assumption may grant the benefit of the doubt where none is warranted. And before C-51 is rammed through Parliament, we should take a close look at what might be authorized if the federal government chooses to interpret the standard of constitutionality and legality of CSIS' actions using exactly the same standard it actually applies to its own laws.
Thanks to Edgar Schmidt's whistleblowing, we already know what test past federal governments (Lib and Con alike) have applied in assessing the constitutionality of legislation. Legislation is generally subject to all three of the below standards (via Slaw):
By way of comparison, here's the provision of C-51 which determines whether CSIS is required to seek a warrant to carry out a particular action:
As a further reason for concern, all of the rights and freedoms set out in the Charter are subject to section 1:
If that interpretation were applied, the warrant provisions of C-51 would effectively become superfluous except in cases where CSIS wanted authorization to breach the terms of the proposed section 12.2 dealing with wilful killings, obstruction of justice and violations of sexual integrity.
To put the above into perspective, let's consider a couple of familiar examples.
The Charter provides "everyone" with the right not to be deprived of life, liberty or security except in accordance with fundamental justice (section 7), the right not to be arbitrarily detained or imprisoned (section 9), and the right not to be subjected to cruel or unusual treatment or punishment (section 12). And those rights have been subject to enough analysis in past case law for us to be relatively sure that a black site detention program or torture program would represent violations of Charter rights (among other standards and obligations).
But the combination of the government's historical interpretation of Charter compliance, the wording of C-51 and the effect of section 1 of the Charter might point toward a radically different test. Applying those factors, I wouldn't want to bet against some Canadian equivalent of John Yoo twisting enough words to opine that black sites or torture could be found to be constitutional under some circumstances. And that analysis in turn could be taken under C-51 as a green light for CSIS to go ahead with them.
What's worse, there would be no ready means for anybody to test CSIS' interpretation.
Unlike in the case of non-compliant legislation, there would be no public record of what's been done to allow for a challenge in court.
While anybody actually having their constitutional rights infringed would want to be able to pursue legal action, that possibility might only be seen as reason to hold detainees incommunicado. In this respect, keep in mind that the non-warrant provisions of C-51 are subject to no time limits whatsoever, meaning that locking people away indefinitely rather than allowing them to argue for their rights would be an available option.
And we can safely figure that whatever "general description" CSIS provides of its own activity (the only reporting required for the non-warrant process) would gloss over any obvious abuses.
As a result, one of the most important questions to be asked about C-51 may revolve around the Cons' intentions in defining when the non-warrant provisions will apply. In principle, a relatively simple set of amendments could provide for a stronger version of individual rights to be taken into account, confirm that a warrant is required if there's any risk at all that an action might breach those rights, and require enough reporting to test whether that obligation is being met.
But if the Cons aren't willing to both accept those amendments and admit to having been wholly wrong in their constitutional analysis in the past, then there's real risk that C-51 could facilitate gross human rights abuses.
But that assumption may grant the benefit of the doubt where none is warranted. And before C-51 is rammed through Parliament, we should take a close look at what might be authorized if the federal government chooses to interpret the standard of constitutionality and legality of CSIS' actions using exactly the same standard it actually applies to its own laws.
Thanks to Edgar Schmidt's whistleblowing, we already know what test past federal governments (Lib and Con alike) have applied in assessing the constitutionality of legislation. Legislation is generally subject to all three of the below standards (via Slaw):
- s.3 of the Canadian Bill of Rights, SC 1960, c 44:
. . . the Minister of Justice shall . . . examine every regulation . . . and every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons
- s.3(2), (3) of the Statutory Instruments Act, RSC 1985, c S-22, which require an examination of regulations to ensure they’re not ultra vires and:
[do] not trespass unduly on existing rights and freedoms and [are] not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights
- s.3 of the Canadian Charter of Rights and Freedoms Examination Regulations, SOR/85-781 (pursuant to the Department of Justice Act, RSC 1985, c J-2):
the Minister shall . . . (a) examine the Bill in order to determine whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms . . .
Since about 1993, with the knowledge and approval of the Deputy Minister, an interpretation of the statutory examination provisions has been adopted in the Department to the effect that what they require is the formation of an opinion as to whether any provision of the legislative text being examined is manifestIy or certainly inconsistent with the Bill of Rights or the Charter and, in the case of proposed regulations, whether any provision is manifestly or certainly not authorized by the Act under which the regulation is to be made.In other words, faced with multiple laws requiring an evaluation as to whether legislation is in fact compliant with the Charter, Lib and Con governments alike have instead limited themselves to asking whether the legislation is at most arguably compliant, having as little as a 5% chance of being found valid. And if the latter standard is met, Parliament and the public have been told that laws are in fact constitutional - at least, until courts predictably apply the proper standard which the government has chosen to overlook.
By way of comparison, here's the provision of C-51 which determines whether CSIS is required to seek a warrant to carry out a particular action:
(3) The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1.If anything, C-51 may be more slanted toward allowing Charter violations than the provisions which have been so blithely ignored in assessing past legislation. The no-warrant provisions can be read to allow CSIS to do whatever it wants in the absence of a warrant unless it is certain that the action will be contrary to the Charter or to other law.
As a further reason for concern, all of the rights and freedoms set out in the Charter are subject to section 1:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.By pointing to the Charter definition of rights, Bill C-51 then allows CSIS to consider the potential application of section 1 in determining whether a violation arises. That means it could approve of an action based solely on speculation that it could be justified under what's known as the Oakes test, even if the action plainly violates a Charter right or freedom on its face.
If that interpretation were applied, the warrant provisions of C-51 would effectively become superfluous except in cases where CSIS wanted authorization to breach the terms of the proposed section 12.2 dealing with wilful killings, obstruction of justice and violations of sexual integrity.
To put the above into perspective, let's consider a couple of familiar examples.
The Charter provides "everyone" with the right not to be deprived of life, liberty or security except in accordance with fundamental justice (section 7), the right not to be arbitrarily detained or imprisoned (section 9), and the right not to be subjected to cruel or unusual treatment or punishment (section 12). And those rights have been subject to enough analysis in past case law for us to be relatively sure that a black site detention program or torture program would represent violations of Charter rights (among other standards and obligations).
But the combination of the government's historical interpretation of Charter compliance, the wording of C-51 and the effect of section 1 of the Charter might point toward a radically different test. Applying those factors, I wouldn't want to bet against some Canadian equivalent of John Yoo twisting enough words to opine that black sites or torture could be found to be constitutional under some circumstances. And that analysis in turn could be taken under C-51 as a green light for CSIS to go ahead with them.
What's worse, there would be no ready means for anybody to test CSIS' interpretation.
Unlike in the case of non-compliant legislation, there would be no public record of what's been done to allow for a challenge in court.
While anybody actually having their constitutional rights infringed would want to be able to pursue legal action, that possibility might only be seen as reason to hold detainees incommunicado. In this respect, keep in mind that the non-warrant provisions of C-51 are subject to no time limits whatsoever, meaning that locking people away indefinitely rather than allowing them to argue for their rights would be an available option.
And we can safely figure that whatever "general description" CSIS provides of its own activity (the only reporting required for the non-warrant process) would gloss over any obvious abuses.
As a result, one of the most important questions to be asked about C-51 may revolve around the Cons' intentions in defining when the non-warrant provisions will apply. In principle, a relatively simple set of amendments could provide for a stronger version of individual rights to be taken into account, confirm that a warrant is required if there's any risk at all that an action might breach those rights, and require enough reporting to test whether that obligation is being met.
But if the Cons aren't willing to both accept those amendments and admit to having been wholly wrong in their constitutional analysis in the past, then there's real risk that C-51 could facilitate gross human rights abuses.
Monday Morning Links
Miscellaneous material to start your week.
- Sara Mojtehedzadeh reports on the work done by the Broadbent Institute and Mariana Mazzucato to highlight the importance of publicly-funded innovation:
- Joyce Nelson discusses how the latest set of ever-more-extreme trade agreements results in a corporate coup d'etat. And Brent Patterson highlights how those agreement threaten Canada's universal public health care system.
- Finally, Chris Hall reminds us that CSIS has been sorely lacking for oversight even before the massive expansion of its powers planned under the Cons' terror bill. Wes Regan warns that C-51 likely represents a dangerous game of bait and switch. And Thomas Walkom notes that politics aside, C-51 is utterly unjustified in principle.
- Sara Mojtehedzadeh reports on the work done by the Broadbent Institute and Mariana Mazzucato to highlight the importance of publicly-funded innovation:
- Steven Greenhouse reports on the damage done to service-sector workers by "flexible" employment arrangements which result in employers being to insist on harmful schedules. And BJ Sikeirski writes that the Cons are attacking pensions across the federal Crown sector with no regard for contracts or employees.According to a 2014 report by the International Monetary Fund, Canadian companies have been accumulating “dead money” at a faster rate than any other G7 country, rather than reinvesting profit into things like human capital or research capacity — suggesting that the rewards of innovative success are being captured by an increasingly narrow sliver of society, even when public money may well have been an early catalyst for achievement.But in taking a more active stake in innovative missions, the Institute suggests, the Canadian government could help better spread the benefits of success, by doing things like taking equity positions in companies it helps start, making loans contingent on local hiring, or asking for grants to be repaid when firms are successful.“Government is always, in a sense, picking winners. It’s picking races,” says Sas. “And so the conversation we need to have is around making sure the public sees returns on those bets.”
- Joyce Nelson discusses how the latest set of ever-more-extreme trade agreements results in a corporate coup d'etat. And Brent Patterson highlights how those agreement threaten Canada's universal public health care system.
- Finally, Chris Hall reminds us that CSIS has been sorely lacking for oversight even before the massive expansion of its powers planned under the Cons' terror bill. Wes Regan warns that C-51 likely represents a dangerous game of bait and switch. And Thomas Walkom notes that politics aside, C-51 is utterly unjustified in principle.
Sunday, February 22, 2015
On proper fixes
Since this headline seems to be getting far more attention than the actual accompanying interview (if mostly from people with a strong vested interest in distorting the NDP's position), let's take a moment to discuss what we'd expect a responsible party to do upon taking power - and what we can tell from a party's actions while in opposition.
The NDP has rightly taken the position that C-51 deserves to be defeated. And it's thus making a strong push to challenge the bill both in premise and in its details - in stark contrast to the Libs, who have pledged their unconditional support despite the fact they recognize serious flaws.
That doesn't mean the NDP shouldn't work to try to reduce the damage as the bill is dealt with in Parliament - including by offering amendments along the way.
But we know that the Cons will be able to force the bill through, particularly since the Libs won't actually be opposing it even if the Cons refuse amendments to try to improve it. So what then should the NDP should do upon taking power?
One option would be to treat C-51 with the same single-word level of analysis we know so well from the U.S. Republicans. And it's certainly tempting to treat the worst of Stephen Harper's choices as deserving nothing more than a declaration of "repeal!".
In the meantime, though, it's entirely likely that some national security practices will have changed based on the passage of C-51. And pulling the rug out from under those practices without assessing the consequences would be just as irresponsible as the Cons' habit of forcing through changes without proper thought.
Meanwhile, we'll also have new information in the meantime about how CSIS has actually used its new powers, and what steps might be most appropriate to rein them in. And it makes no sense to demand that any party close its eyes to that information.
Finally, let's note that the parties' actions now should send a strong signal as to their intentions upon forming government. The Libs' position is that they're more accepting of C-51 than concerned with it, and if they made any amendments at all after the fact we'd expect relatively little change. Conversely, the NDP sees C-51 as doing more harm than good such as to justify voting it down now - offering ample reason to believe it would be highly skeptical of Harper's changes in deciding what amendments are required later.
In sum, there's no immediate damage to current security operations in opposing the creation of new powers, where there could be in eliminating them after they exist. And while we should hold Tom Mulcair to the standard of deleting any parts of C-51 (and any other security legislation) which aren't justified as soon as can be done without disrupting our security services, that doesn't mean a "scrap it all immediately!" position is in anybody's interest.
The NDP has rightly taken the position that C-51 deserves to be defeated. And it's thus making a strong push to challenge the bill both in premise and in its details - in stark contrast to the Libs, who have pledged their unconditional support despite the fact they recognize serious flaws.
That doesn't mean the NDP shouldn't work to try to reduce the damage as the bill is dealt with in Parliament - including by offering amendments along the way.
But we know that the Cons will be able to force the bill through, particularly since the Libs won't actually be opposing it even if the Cons refuse amendments to try to improve it. So what then should the NDP should do upon taking power?
One option would be to treat C-51 with the same single-word level of analysis we know so well from the U.S. Republicans. And it's certainly tempting to treat the worst of Stephen Harper's choices as deserving nothing more than a declaration of "repeal!".
In the meantime, though, it's entirely likely that some national security practices will have changed based on the passage of C-51. And pulling the rug out from under those practices without assessing the consequences would be just as irresponsible as the Cons' habit of forcing through changes without proper thought.
Meanwhile, we'll also have new information in the meantime about how CSIS has actually used its new powers, and what steps might be most appropriate to rein them in. And it makes no sense to demand that any party close its eyes to that information.
Finally, let's note that the parties' actions now should send a strong signal as to their intentions upon forming government. The Libs' position is that they're more accepting of C-51 than concerned with it, and if they made any amendments at all after the fact we'd expect relatively little change. Conversely, the NDP sees C-51 as doing more harm than good such as to justify voting it down now - offering ample reason to believe it would be highly skeptical of Harper's changes in deciding what amendments are required later.
In sum, there's no immediate damage to current security operations in opposing the creation of new powers, where there could be in eliminating them after they exist. And while we should hold Tom Mulcair to the standard of deleting any parts of C-51 (and any other security legislation) which aren't justified as soon as can be done without disrupting our security services, that doesn't mean a "scrap it all immediately!" position is in anybody's interest.
On extended intrusions
There's been plenty of discussion as to the similarities between the Cons' terror bill and Pierre Trudeau's 1970 invocation of the War Measures Act. And it's certainly worth reminding ourselves that even in the face of an identifiable security concern, the impulse to attack civil rights tends to prove wrong upon reflection.
But there's a key difference between the C-51 debate and Trudeau's invocation of the War Measures Act - and it's one which makes the present-day Cons and Libs look even worse than their predecessors.
Keep in mind that the War Measures Act was aimed at providing extreme but temporary powers in the face of an apprehended threat. Those powers still exist under a statute which replaced the War Measures Act, which provides barely-fettered authority under a few key conditions: the government is required to publicly declare a state of emergency, its declaration is temporary unless extended, and its decision is subject to the will of Parliament.
In contrast, the key parts of the security apparatus set up under C-51 lack some or all of those protections.
C-51's warrant process provides for the actions which require judicial approval to be time-limited in theory. But just as the granting of a warrant takes place away from the public eye and without opposition, so too does the extension of a warrant.
What's worse, the no-warrant provisions of C-51 operate any time CSIS decides for itself - without any debate or notice - that a "particular activity" should be limited. Once that standard is met, CSIS is authorized to take whatever actions it sees as reasonable, with no limit on the time or scope of any intrusion into the lives of Canadians other than CSIS' own evaluation.
And there's no process for anybody to challenge or review CSIS' secret actions - which again can be carried out indefinitely - except to the extent SIRC is up to the task.
In retrospect, history has proven Tommy Douglas right in arguing that the 1970 application of the War Measures Act resulted in the Trudeau government using a sledgehammer to crack a single peanut. But by that standard, the Cons' C-51 is based on implementing the vision of a sledgehammer being used to smash a pile of peanuts forever.
[Edit: fixed wording.]
But there's a key difference between the C-51 debate and Trudeau's invocation of the War Measures Act - and it's one which makes the present-day Cons and Libs look even worse than their predecessors.
Keep in mind that the War Measures Act was aimed at providing extreme but temporary powers in the face of an apprehended threat. Those powers still exist under a statute which replaced the War Measures Act, which provides barely-fettered authority under a few key conditions: the government is required to publicly declare a state of emergency, its declaration is temporary unless extended, and its decision is subject to the will of Parliament.
In contrast, the key parts of the security apparatus set up under C-51 lack some or all of those protections.
C-51's warrant process provides for the actions which require judicial approval to be time-limited in theory. But just as the granting of a warrant takes place away from the public eye and without opposition, so too does the extension of a warrant.
What's worse, the no-warrant provisions of C-51 operate any time CSIS decides for itself - without any debate or notice - that a "particular activity" should be limited. Once that standard is met, CSIS is authorized to take whatever actions it sees as reasonable, with no limit on the time or scope of any intrusion into the lives of Canadians other than CSIS' own evaluation.
And there's no process for anybody to challenge or review CSIS' secret actions - which again can be carried out indefinitely - except to the extent SIRC is up to the task.
In retrospect, history has proven Tommy Douglas right in arguing that the 1970 application of the War Measures Act resulted in the Trudeau government using a sledgehammer to crack a single peanut. But by that standard, the Cons' C-51 is based on implementing the vision of a sledgehammer being used to smash a pile of peanuts forever.
[Edit: fixed wording.]
Sunday Morning Links
Miscellaneous material for your Sunday reading.
- Al Engler argues that it's long past time to start raising taxes on the wealthy to make sure that Canada can fund the level of social development we deserve.
- Kevin Drum writes that we shouldn't be satisfied with a temporary dip in inequality caused by the 2008 recession when longer-term trends suggest matters will get worse. And Lynn Parramore interviews Lance Taylor about the demand-side implications of exacerbated inequality:
- Paul Krugman notes that no matter how obviously counterproductive the ideology of further enriching the already-wealthy proves in practice, Republican presidential contenders - and indeed far too many other politicians - see themselves as obliged to keep pitching it. And Brent Patterson writes about the Cons' similar plan to go all-in on a failing economic strategy, handing a massive tax break to gas exporters even as we see the consequences of relying unduly on volatile commodities.
- Finally, Andrew Mitrovica reminds us that Stephen Harper's fearmongering about fabricated threats can't hide his own personal cowardice. And Haroon Siddiqui warns us of the dangers of stigmatizing and profiling large swaths of people for political purposes, while Stephen Lautens notes that the Cons' attempt to stoke public anger over the mere act of wearing a niqab can't be explained any other way.
- Al Engler argues that it's long past time to start raising taxes on the wealthy to make sure that Canada can fund the level of social development we deserve.
- Kevin Drum writes that we shouldn't be satisfied with a temporary dip in inequality caused by the 2008 recession when longer-term trends suggest matters will get worse. And Lynn Parramore interviews Lance Taylor about the demand-side implications of exacerbated inequality:
LP: Thomas Piketty’s work on inequality has generated enormous interest. How does your analysis of how the rich grow richer differ from his?- Meanwhile, Elise Gould points out that U.S. wages are stagnating or declining for all kinds of workers, confirming that it's futile to pretend that education or retraining will address the growing wealth gap. And Anna Mehler Paperny discusses the difficulties facing precarious workers in Canada.
LT: To judge from his writing, Piketty is well aware that social relations and power strongly influence income inequality. But there are problems with the way he thinks economies work in the long run. He’s using the standard supply-driven growth model, assuming that there is always full employment and investment is determined by saving.
But there’s another way of looking at growth, with less than full employment and investment driving demand. From this view, economies grow when people spend their money on goods and services.
Luigi Pasinetti, a Cambridge economist, has looked at the economy in terms of two classes – “capitalists” who collect profits on the capital they own and “workers” who get the rest of income. Extending his work shows that when the wage share falls over time, workers will not only have less wealth, but economic growth will slow because people don’t have as much money to buy goods and services. In other words, wage repression (and excess capital gains, too) create stagnation in the long run. You can think of the top one percent as Pasinetti’s capitalists and the middle class as his workers. (Poor households don’t figure into the story of wealth because they don’t have any, although they do have an impact on the economy when they spend money on goods and services).
Our preliminary simulations show that the top one percent’s share of wealth might stabilize in the range of fifty percent (half the total pie), and the growth rate might settle down at less than two percent per year, which would be a less vibrant economy than we’re used to. One bit of good news for middle class families is that in the long run, they do retain the power to save from wages, which to an extent protects their wealth. Piketty does not take this linkage into account. But overall, a falling wage share will hurt the entire economy and hold back everyone, even, eventually, those at the top.
- Paul Krugman notes that no matter how obviously counterproductive the ideology of further enriching the already-wealthy proves in practice, Republican presidential contenders - and indeed far too many other politicians - see themselves as obliged to keep pitching it. And Brent Patterson writes about the Cons' similar plan to go all-in on a failing economic strategy, handing a massive tax break to gas exporters even as we see the consequences of relying unduly on volatile commodities.
- Finally, Andrew Mitrovica reminds us that Stephen Harper's fearmongering about fabricated threats can't hide his own personal cowardice. And Haroon Siddiqui warns us of the dangers of stigmatizing and profiling large swaths of people for political purposes, while Stephen Lautens notes that the Cons' attempt to stoke public anger over the mere act of wearing a niqab can't be explained any other way.
Subscribe to:
Posts (Atom)