Reference Cases Are Not The Problem

Over at iPolitics, James Matkin and Clive Cocking are busy moaning about how the Supreme Court "kills innovative legislation" in the form of "reference cases".

The basic thesis of their argument is that we need to take away from the Supreme Court of Canada the ability to hear "reference cases".  A reference case is fundamentally a hypothetical case - a "what if we wrote legislation like this" test.  For most Canadians, the most recent "Reference Case" was Harper's "Senate Reform" gambit, which got smacked around for violating various aspects of the division of powers in the Constitution.

Matkin and Cocking complain that these reference cases effectively drag the Supreme Court into the political discourse where it has no business being.

I respectfully disagree with their analysis of the situation.  The problem is not reference cases at all, but rather the manner in which the current government has approached the matter.

Since 1875 the federal government has dumped an astounding 75 reference cases into the lap of the court. Many of them have involved the thorniest of political issues, such as Quebec secession or Senate reform.

Quite frankly, if in 139 years, we have put 75 cases before the Supreme Court of Canada, that's not exactly a huge amount.  Thats one every couple of years, roughly, and for the most part, those have been legitimate cases of the government's lawmakers asking very real questions about the legitimacy of a given legislative approach to a problem under this country's Constitution.

On the whole, it has been quite useful when one examines it as a tool to help lawmakers (who are seldom experienced members of the judiciary) to consider the implications of legislation they are considering, or for that matter the more subtle aspects of constitutional law (as the 1998 Quebec Secession reference addressed).  Given the speed with which the court system moves as a whole, there is much to be said in favour of a reference case being heard - not the least of which is to serve as a baseline for guidance as to how a court would look upon a particular issue in the future.  While these are definitely theoretical moments, it takes years (and millions of dollars) to litigate an issue to the Supreme Court to have it overturned on charter or constitutional grounds.   When it is something which could have been avoided by simply asking the obvious questions up front, it saves all involved an enormous amount of grief (and money).

Citing Harper's Senate reference as an example, Matkin and Cocking seem to believe that Harper should have just legislated as he wished and then have the whole mess before the Supreme Court.  One doesn't have to be a Constitutional scholar to realize that Harper's entire approach to the Senate violated multiple articles of Canada's Constitution.  Since Harper has shown repeatedly that he has no interest in writing laws which respect Canada's constitution, one could arguably say that the reference case saved Canada millions in litigating the matter.

Harper has tried to use this to claim that Senate reform is "impossible".  Of course, what Harper is really saying is that he is unwilling to engage with the provinces to make the amendments needed to achieve his vision of a reformed Senate in Canada.  Since 2006, Harper has not once met with all the provincial Premiers.

Justice Frankfurter of the U.S. Supreme Court rightly described such advisory opinions as “ghosts that slay”, particularly innovative legislation. Our Parliament has repeatedly used this legal device to dodge its duty to act on tough issues. One of the most craven examples was the federal government’s 2011 decision to let legislation creating a national securities regulator die stillborn in the face of a negative Supreme Court reference opinion – when three sections of the constitution give Parliament adequate trade and commerce powers to enact such legislation.

Oh ... it kills "innovative legislation"?  No more than writing that legislation and having it struck down as a result of subsequent litigation.  Again, the example that the authors cite is another case where Harper and his government would have to engage with the provinces directly in order to develop an acceptable model.  Harper refuses to engage with anyone outside his inner circle in the PMO, and he is incapable of developing any kind of meaningful compromise.

The problem is not reference cases, nor is it the politicization of the Supreme Court that they argue arises from such cases.  The problem is a government which has no respect for the Constitution of Canada and a Prime Minister who is unwilling to actually engage with the provinces.  Harper is the problem, not the reference cases.

Religious Beliefs Are Not Ethics

In the wake of the recent uproar over a doctor in Calgary refusing to prescribe hormonal birth control, and the SCotUS decision in Burwell v Hobby Lobby, it seems that there is more than a little bit of a misunderstanding about the distinction between a religious belief and ethical conduct.

In today's Calgary Herald, we have lawyer and right-wing activist John Carpay spouting off on the issue of the doctor.

Apparently Prentice believes that a doctor should simply do and provide whatever the patient wants done and provided, regardless of the doctor’s education, training, experience, conscience, and professional judgment. 

This raises some interesting questions. If a doctor, based on her experience and research, believes that liberation therapy (dilating and opening blocked neck veins) is not a good option for patients suffering from multiple sclerosis, must she provide that therapy simply because the patient demands it?

Let me point out first that professional ethics and practice guidelines are seldom "black-and-white", especially in matters where we are not necessarily talking about life-and-death, and to be sure, a prescription for birth control pills is hardly in that latter category.

However, there is an enormous difference between prescribing a birth control pill (with well known and quantified effects), and an experimental therapy that up until recently had no clarity around the degree of effectiveness of the treatment.  I would expect a doctor to provide enough information that a patient could make an informed decision in either case.

What about a doctor who is convinced that anti-cholesterol pills do more harm than good? What if a doctor refuses to prescribe birth control pills because she believes, apart from any religious teaching, that they compromise women’s health? Should this physician disregard her own research, analysis and conclusions and prescribe what she considers to be a dangerous product?

Like a lot of things, the question at that point becomes "where's your evidence?".  Medicine has moved beyond the era of "doctor knows best", and has been moving towards an informed consent model for a number of years.  Blanket refusals to provide this or that treatment without explanation speak more of condescension, and fragile belief systems, not rationally arrived at conclusions.

A free and democratic society allows consumers and providers to accept or decline each other’s business, without state coercion. In a free society, the government does not force doctors, lawyers, butchers and other people to do things that they do not wish to do.

A doctor is not in the same class of occupation as a butcher.  A doctor is dealing with people's lives.  Their duties supersede "personal beliefs" much of the time.  The doctor's blanket refusal ignores the potential risks to the patient.  For example, is it ethical for her to refuse to prescribe birth control pills to a woman who has been advised by a physician to avoid becoming pregnant because of the risk to her health?  (Yes, it does happen - it happened to my own Mother)

Oh wait ... women aren't supposed to _enjoy_ sex.  It's supposed to come with some kind of punishment (aka "consequences").

To put medical services into the same arena as buying a slab of meat at the butcher is a bit of a fallacy that ignores the more subtle complexities of the picture.  It's not like we have a surplus of doctors in Alberta.  In fact, we have a serious shortage even in urban areas, and heaven help you if you live in a small town and lack a car.  Further, a doctor's chosen profession reaches beyond the "free market", and the kinds of expertise involved are such that there is no guarantee of there being an alternative available - especially in small towns.

The issue that I have with this particular situation is not with the doctor herself, but rather with the "escape hatch" clause in the ethical guidelines that are involved.  I have no problem with the idea that someone may have strong beliefs in one respect or another.  That does not give them a free pass to decide that they are going to impose a blanket refusal on everyone based on those beliefs.

If there was real evidence that she had concerns about, that would be one thing, but based on a number of bits and pieces that we have seen in the media, her objections appear to be largely moral rather than evidence based and objective.

Quite frankly, I do not go to my doctor for "moral lessons", nor do I expect that my doctor is going to demand that I live by their moral code.  I expect my doctor to be informed, and to be able participate in helping me achieve an informed decision about whatever treatment I am seeking.  Individually, this doctor has essentially issued a blanket refusal which precludes her making an informed decision about any patient's situation.

On a higher level, I am not accusing the doctor of violating the ethical guidelines of her profession.  However, I am questioning if the "conscience clause" and its application here.  It seems to me that the clause itself is overly broad and untestable.  This has the unfortunate consequence of making it difficult for people to access health care - especially gender and sexual minorities, but even women - because at the outset the doctors are able to invoke this escape hatch without any evaluation of the patient, their situation or whether reasonable alternatives exist.

While I can appreciate that there are circumstances where a doctor will find themselves in a place which is in conflict with whatever moral beliefs they may follow, I think that the escape hatch in the practice ethics needs to be tightened up considerably.  At present it is overly broad at the detriment of the patient.

How Harper Wastes Your Tax Dollars

Harper likes to style his government as a "firm, steady hand on the tiller", especially on matters of the economy.

But the man is so blinded by his hatred for our country's laws and the foundational principles of the Canadian Constitution and The Charter of Rights And Freedoms that he simply writes legislation that is based solely on his ideology.

The net result:  unjust laws that are in fact illegal under Canada's Constitution, and millions of dollars spent trying to sustain those laws before the courts of the land.

June 2014: Supreme Court upholds privacy rights
April 2014: Feds can't go it alone on Senate reform
April 2014: Judges have discretion on sentencing
March 2014: Medical marijuana users win injunction
March 2014: Early parole abolition repealed
March 2014: Marc Nadon rejected by Supreme Court
December 2013: Court strikes down prostitution laws
November 2013: No mandatory minimums for guns
September 2011: Supervised injection clinic remains open

... and those are just the cases the court has ruled on.  There is more before the court, and more challenges yet to come based on legislation that this government has rammed through.  Including the "Fair Elections Act", "The Strengthening Canadian Citizenship Act", and the "Protection of Communities and Exploited Persons Act" for starters.  

There's more, including a "cyberbullying bill" that is really just a trojan horse for widespread surveillance without warrant, and a litany of evilness that has been rammed through as part of "budget omnibus bills" which should never have been given the time of day.

Fiscal prudence?  Hah!  

This is government by ideology.  Harper views the Constitution of this country as an impediment, not as a framework.  

The Real Error The Hobby Lobby Decision Exposes

I've been spending a bit of time going through the Burwell v Hobby Lobby decision lately.  I'm no expert on US Constitutional law, but it seems to me that the fundamental principle underlying the ruling is the somewhat dubious notion in US law that extends the rights guaranteed to citizens to corporations.

First of all, the logic under which the law extended those rights to corporations contains a fundamental error:  namely that a corporation is not able to exercise certain rights in any meaningful sense.

Consider the following:  A corporation is a legal construct.  It is not a person, and it cannot exercise autonomy from the persons who operate it.

When was the last time you saw a corporation walking down the street, or having a coffee with a friend in a café?  The fact is you haven't seen it - ever.  It doesn't happen.  Yes, a corporation exists, and has a certain reality associated with it.  However, we should never make the mistake of assuming that it is anything other than a legal fiction.

The error was made ages ago when the US passed a piece of legislation which effectively defined a corporation as equivalent to a person for all intents and purposes, a definition which was referenced explicitly in the RFRA act that seems so central to the Hobby Lobby decision.  Since then we have seen a series of cases where corporations have asserted that they must have access to human and civil rights under the law.

Hobby Lobby is just another incremental expansion of those rights, and it is perhaps the most concerning yet.  Few would disagree that there is a reasonable right for a corporation to have access to free speech, or fair trials under the law.  This decision now extends to the corporation the adoption and exercise of rights related to religious freedom.

Consider for a moment the grand irony of such a proposition.  In what universe can we imagine a legal fiction being able to adopt or practice any particular human faith?  You will never see that corporation sitting in a church, or otherwise engaging in worship.  The very idea that a corporation can be said to be "religious" in any way is ludicrous.

Granting a corporation the right to exercise the "proxy right" to reflect the religious beliefs of its ownership is also problematic.  First, the understanding of religious beliefs is highly variable.  Second, the expression of those beliefs is highly individual.  Third, the concept of a "religious belief" has no objective and reasonable test that can be used to establish its validity.  A religious belief is whatever the person who claims it says it is.

While we might commonly think of these rights in the context of a Judeo-Christian understanding of what a "religious belief" is, one has only to look at the breadth and depth of human spiritual/religious thought over the centuries and millennia to realize that there are many "beliefs" which could be asserted that are arguably repugnant.

As has been demonstrated time and again by the decisions of corporate management and boards, at their most fundamental, corporations are inherently sociopathic.  They exist to make their owners money first and foremost.  That means we get decisions such as those we see where health insurance providers do everything in their power to deny treatment; or decisions like those around the Ford Pinto's fuel filler get made.

These are not the decisions of individuals.  They are the collective decisions of committees of people - people who are at the end of the day held accountable to the financial performance of the corporation.  For the management of any corporation to sit there and pontificate about how this or that practice is "immoral" and insist that the corporation must reflect those "moral" beliefs, when ultimately no corporation exists for any purpose other than making its owners money.  

It is my opinion that while there are legitimate rights for corporate entities, those rights must be described separately and apart from the individual rights held by citizens.  Further, those rights must be held as subservient to the individual rights of a country's citizens.

The Hobby Lobby decision allows a corporation's asserted rights to supersede those of the citizens who work for the corporation.  This is an error not of the application of law, but of the creation of law itself.  It is unfortunate that the SCotUS did not acknowledge this in its decision or on its blog.

Bishop Henry ... It's Been A While

For those who don't live in Calgary in the fair province of Alberta, you may not have heard the uproar over a doctor refusing to prescribe birth control pills to patients.  Unsurprisingly, a lot of people are upset by this.  

Equally unsurprising is Bishop Fred Henry's contribution to the discussion, published as a "Letter to the Editor" in today's Calgary Herald.

Re: "Doctors' ability to say no must be limited," Naomi Lakritz, Opinion, July 2. Physicians will sometimes prescribe the pill to treat problems like heavy menstrual bleeding, painful periods, pre-menstrual syndrome, endometriosis or severe acne. In these cases, the pill is used not as a contraceptive, but as a therapy for a medical condition. 

This can be morally permissible under the principle of double effect, which allows for the treatment of a serious medical problem (good effect) while tolerating its unintended consequences, when other less harmful treatments are not available. In this case, the unintended consequences would be the impeding of fertility and the pill's potential health risks and side-effects (evil effect). 

Some medical professionals insist that the pill, taken purely to avoid pregnancy, is "health care." It is not health care, but a lifestyle decision. This lifestyle decision is frequently made in the midst of a cultural backdrop that sanctions the misguided view that "health" means we have the right to practise consensual indiscriminate sex without consequences. 

The pill, when chosen strictly for these contraceptive purposes, fails the test of being health care because it does not heal or restore any broken system. It breaks a smoothly working system - the reproductive system - by disrupting the delicate balance of hormonal cycles regulating a woman's reproductive wellbeing and fecundity. 

When taken for lifestyle purposes, the pill is quite the opposite of health care - being detrimental to women's health - in light of its frequent side-effects of weight gain, headaches and depression, as well as its heightened and well-documented risk of thrombotic stroke, heart attack and breast cancer. 

We need more information from the professionals as to how the pill works. Does it prevent fertilization or is it an abortifacient? Or both? 

Bishop Fred Henry 

Calgary
Fred Henry is bishop of the Roman Catholic Diocese of Calgary.

It comes as no surprise that the local Catholic Bishop would be objecting to the idea of contraception.  Last I checked, the official position of the Catholic Church was still that contraception is unacceptable - including condoms.  So, no big surprises there.

However, I take considerable exception to several aspects of the Bishop's arguments.

First, he claims that the contraceptive action of the pill is an "evil effect".  For those who choose to believe what the Bishop preaches, that's just fine.  Go ahead and believe that there is an "evil" associated with the pill.  The issue is not that the medication has effects on the body - that is both well documented and well understood.  To call them "evil" is something of a reach ... but we'll come back to this in a moment or two.

He then moves on to the old saw about how sex must have consequences.  Again, if you bought into the old guilt trip routine that the Catholic Church has been teaching about sex for the last several centuries, that's one thing.  On the other hand, some people actually like sex for its own sake.  I'm certain the Bishop will find this terribly appalling - we aren't supposed to actually enjoy it.  Especially not women.

This is, of course, complete nonsense.  Human beings have used sex as a means of pleasure, social bonding and goodness knows what else for far longer than the Catholic Church has existed.  For at least that long, men have been trying to regulate women's sexuality ... unsuccessfully for the most part.  I for one don't exactly think terribly highly of a bunch of supposedly celibate males trying to dictate how we should experience sex.

Accordingly, because it is "a lifestyle choice", Bishop Henry figures that the Pill isn't "medical care". Is the pill "medical care"?  That's a matter of perspective.  In some countries, it's an over-the-counter medication - walk in and ask for it and off you go.  In Canada, we still require a doctor's prescription. I suppose from the perspective of monitoring the patient for possible side effects and consequences, a visit to a doctor for a prescription isn't a bad idea.  In claiming that it is a "lifestyle choice" and therefore not "care", the Bishop is overlooking the obligation of the physician to ensure that the patient is in fact not experiencing serious side effects from the medication.

Perhaps most annoying about the Bishop's argument is his attempt to muddy the waters further by questioning whether the pill is "contraceptive" or "abortifacient".  This latter claim is relatively recent, and has been used to argue that certain medications are in fact essentially "chemical abortions" and therefore should be suppressed as violently as abortion itself.  It is part of the wedge politics approach to regulating women's sexuality.

Frankly, I don't think it matters which way (or both) that the Pill works.  The decision isn't the Bishop's to make, nor is it the Church's.  Women have a right to administer their bodies as they see fit, and manage their lives as they see fit.  (and that may just include enjoying sex now and then too)

As the old joke goes:  If the Bishop no playa da game, he no make da rules

Emotionally Loaded

Okay, Paul Bernardo is a sociopath.  This should not come as a big surprise to anyone who followed the investigation and trial that eventually put him in prison.

That he has managed to convince a woman that he is a "good man" comes as little or no surprise.  Sociopaths are often experts at manipulating and twisting things to their advantage.  Bernardo has spent the last 20 years in a high security prison.  One might imagine that he has relatively little to do, and no doubt all the time in the world to put into manipulating those people who present any kind of opportunity to mess with them.  

Frankly, if you engage with someone like Paul Bernardo, whether it is for research or personal reasons, caution is essential.  For a man like him, manipulating people and playing with their emotions is sport.  He thinks it is fun.  No more than that.

When the Sun chose to make the alleged engagement between Bernardo and an Ontario woman their front page story, they really just played into Bernardo's ego, and his notoriety.  However, like Bernardo, who has spent months or longer manipulating this woman to make her believe that they are in love with each other, the Sun spends its story and headline space trying to manipulate its readers.

In this case, the Sun has chosen to use the Bernardo story to try and pry open the capital punishment debate in Canada.

Someone like Paul Bernardo, or in the past Clifford Olson, regularly gets trotted out by the proponents of capital punishment as reasons why we should have such a punishment on the books. 

These are purely emotional arguments.  People like these are horrifying.  What they did to others is appalling, and their apparent lack of remorse is horrifying to anyone with a sense of empathy.  Of course they provoke strong, visceral reactions when brought forward of examples of the most heinous of criminals.

However, the discussion around "dangerous criminals" is nowhere near as clear and well defined as we might wish to suppose.  

Many have argued that Vincent Li should be held to the same standard and executed.  That said, it was quite clearly established that Li was suffering from a psychotic episode when he killed Tim McLean.  That doesn't make what happened any less horrible, but it raises the question of criminal responsibility.  Mental illness is a serious issue, and not one that you can simply sweep away with the rubric that he committed a heinous act.  Yes he did commit the act, but given that we know his brain wasn't working normally (hallucinating etc.), can we hold the person who emerges from a psychotic episode responsible for what happened during that episode?

Then there is the ever present spectre of applying the death penalty in a situation where the accused is factually innocent, or there are significant questions about the degree of their culpability for reasons ranging from circumstances to mental capacity.  The United States has numerous cases like this. 

The Sun is being manipulative and dishonest with its "poll" and the associated article.  They aren't trying to create a reasoned debate.  Instead, like a sociopath who enjoys pushing people's buttons until there is a reaction, they are trying to get an emotional response from Canadians on a subject that requires careful consideration and thoughtful analysis.

Dear SCotUS: You Blew It

When you ruled that Hobby Lobby could implement its ownership's personal religious beliefs as policy imposed upon the company's employees, you really opened up the door to a world of abuse.

Hobby Lobby is a privately held corporation.  As are the majority of companies in both Canada and the United States.  Hobby Lobby is unusual in being a large operation with several thousand employees, where most corporations are quite small - a handful of employees at most.

However, I don't care what a corporation's owners "believe".  Frankly, I don't give a damn whether they believe that a condom is an abortifacient form of birth control or if the moon is made of green cheese.  They can believe the world if flat for all I care.

They still have no right whatsoever to stick their nose into my life outside of work.  PERIOD. This isn't just a matter of birth control.  It's a matter of privacy.  By permitting Hobby Lobby's ownership to pick and choose what forms of birth control the company health insurance plan will cover, your ruling allows the company ownership to impose its beliefs on the employees without any recognition of, or respect for, the individual lives that may be affected.  Frankly, I see no difference between Hobby Lobby's position on this and a refusal to provide insurance coverage for lung cancer treatment to a smoker on the basis that I believe that the smoker is making an immoral choice.

In ruling that Hobby Lobby can choose to make such limitations in the coverage of its health care, the SCotUS has provided a wedge that the right wing incrementalists will no doubt attempt to leverage.  We already know that their long term strategy is to incrementally erode rights a step at a time.

The religious right has been trying to dismantle Roe v. Wade for decades now.  You just handed them the tools to chip away further at the rights that Roe v. Wade so clearly set out in terms of women's reproductive health.

We have seen the religious classes argue against access to any kinds of contraception on the basis of their particular worldview.  In fact, in the last decade or so, they have expanded their scope from not just attacking abortion, but going after contraception as well.  Your ruling just handed them wording broad enough that we will no doubt see women's reproductive health pushed off the table in a great many workplaces - on the basis of the "beliefs" of the owners of the company.

How this will play out in cases like the Koch brothers where the company is "publicly traded", but controlling interest is held by the Koch brothers remains to be seen.  Could the Koch Brothers ram through a resolution at the annual general meeting to restrict access to birth control and have it stand?  The Hobby Lobby ruling is ambiguous in this respect.  It talks about the "probabilities", but it doesn't specifically rule out the Hobby Lobby ruling applying in such a situation.  I fully expect to see a series of proxy fights starting in various corporations as religious right groups try to flex their muscles on the AGM floor.

America's LGBT people are also justifiably wary of the Hobby Lobby ruling.  Religious objections have long been at the core of resistance to LGBT equality rights, and underly much of the systemic and explicit discrimination that LGBT people face daily - whether that is when ordering a meal in a restaurant, or trying to land a job.  Quite frankly, although the Hobby Lobby ruling appears to try and exclude such activities from the scope of the ruling, I guarantee you that someone is going to try it.  Religious objections have already been cited by a bakery which wanted to deny service to a gay couple, and I see no reason why this aspect of the Hobby Lobby ruling won't be challenged along these lines.

Let me be incredibly clear.  A corporation is not a person.  It cannot, and should never have been granted "rights" in the same sense that individual citizens hold them.  An individual citizen is possessed of a conscience, of beliefs and above all of individual autonomy.  No corporation can be said to have any of those attributes.  A corporation is a legal fiction designed for the express purpose of making money.  (Has anybody seen Hobby Lobby attending a church?  No, of course not.  Its owners can be seen in court, but one cannot say that the company attends a church)

Yes, a corporation does need certain rights legally supported.  However, those rights must be separate from, and subordinate to the rights of the individuals who participate in that corporation either as owners or as employees.  A corporation is a business intended to perform one function:  make money.  The corporation has a right to reasonable freedoms with respect to the execution of that fundamental goal.

However, those rights must be subjugated to the rights of individual citizens.  A corporation's actions absolutely should never be permitted to interfere with the private lives of citizens in any respect.