And Goodwill to all Mankind

December 24, 2017

As a very young lawyer I had the opportunity to act as junior prosecutor  in a jury trial involving a crime which had occurred in the aftermath of a drunken party on a local first Nations Reserve. I was given the task of leading the evidence of a number of peripheral witnesses, all of whom had attended the bash and had observed the actions of the accused during the evening. All of these witnesses were First Nations.

The presiding judge was Mr. Justice Thomas Burger, who had spent much time in First Nations communities. at the first recess counsel were called into the judge’s chambers and I was gently upbraided by the judge, who drew my attention to the fact that I had been addressing the native witnesses by their first name, whereas white witnesses were being addressed by their title and surname. Although the lapse was completely unconscious I was hugely embarrassed to be called out on my patronizing behavior, and chastened, resolved to guard against such bias in the future. I would, in future, treat all participants in the trial process with the respect they deserve, regardless of race. It is a resolution which I hope I have kept over the years.

I was reminded of Mr. justice Burger’s admonitions recently when I chanced upon an article by Lauren Murrow in the August 2017 edition of Wired magazine  reporting on the research of Dr. Jennifer Eberhard, a social psychologist at Stanford University, who uses data obtained from police body cam footage to recognize patterns of racial disparity when traffic cops interact with members of the public.

Police Body cam transcripts  can now be scanned  and analyzed using newly developed software, for both subtle and not-so-subtle differences in the way police interact with blacks or whites. Dr. Eberhardt’s conclusion is that police are more likely to use abrupt and less respectful language when dealing with African Americans  than with whites. White drivers were more likely to be addressed as “Sir”, for example, and more formal vocabulary employed. When dealing with black drivers often more colloquial language was used,coupled with a more words of command.

The team at Stanford University has built a computer model which can predict the race of a driver interacting with the traffic cop with 68% accuracy based only on the nuances found in the police officers speech.

Machine learning and transcript analysis software have offered another demonstration of what most of us sense intuitively already; that subtle racism exists in our society and can often be manifested, even unconsciously, by those  of us who believe ourselves to be free of prejudice.

Something to think about during this season of ‘goodwill towards all mankind’ and with the season of resolutions just over the horizon.

What will your resolution be?

 

 

 

What’s so great about December 11th?

December 11, 2017

Whew, I almost forgot an important birthday today. Facebook, which regularly reminds me of all sorts of anniversaries of people I scarcely know, dropped the ball completely, but thankfully, my Google calendar saved the day, highlighting Monday, December 11 as the 86th birthday of the Statute of Westminster. (the 1931 version, not the ones of the same name from 1275 and 1285 )

Unless you are a constitutional law nerd you could be forgiven for wondering why this birthday is important. Well, the Statute of Westminster  is in fact one of the pillars of the Canadian Constitution, as important as the British North America Act or the  Constitution Act of 1982. By rights, we should probably be celebrating Canada Day today, rather than the 1st of July, since December 11th 1931 was the day  that Canada truly became a sovereign, independent nation, ending the paramountcy of acts of the British parliament over our affairs. We can be thankful for the wisdom of  the Fathers of Confederation for realizing that a July long weekend makes much more sense  for a family BBQ, but still, we should honour the day more than we do.

Of special interest to the legal profession, The Statute gave Canada the option of abolishing the use of the Judicial Committee of the Privy Council as the country’s court of last appeal, but as with most things in the profession, change came at a glacial pace, and it wasn’t until 1949 that we actually got around to it.

A fun factoid for all my fellow closet monarchists – the Statute of Westminster played merry hell with the laws governing succession to the British Throne, which, in July  of 2013 had constitutional scholars holding their breath, lest the future Queen of England not be the future Monarch  of Canada . The crisis was averted when the Duchess of Cambridge produced a male heir in the person of  Prince George of Cambridge, but it was a close call.

OK, so constitutional scholars don’t get out much, and tend to light their hair on fire over fine points of statutory interpretation that put the rest of us to sleep, so let me give you the Cole’s Notes version:

Section 2(2) of the statute gives Canada the sole right to amend the laws of royal succession, as they apply to Canada, meaning that any subsequent changes made to the  laws of royal succession of Great Britain would no longer apply to us.

Then, in 2013 the game was afoot  as the British Parliament started messing around  with those laws of royal succession  by enacting  the Succession to the Crown Act, which stipulates that the crown no longer goes to the first-born male heir, but simply to the first born, regardless of gender. In doing so, they  gave the appropriate tip of the hat  to the Statute of Westminster, by declaring that the law expressly exempted Canada.

The immediate result was that, while the UK had adopted the modern doctrine of absolute primogeniture, the law in Canada remained that the monarch of Canada was to be selected  using the old-fashioned  male preference primogeniture. To enact a change in the Canadian law would have required the unanimous consent of the Provinces, so the Canadian  government wimped out and  passed  the Throne Bill 2013 –  literally a one liner that simply said  Canada assented to the UK Succession to the Crown Act.

Experts  agree pretty universally that our legislation was completely ineffective, since it purported to assent to an Act which expressly exempted Canada . So, had the  order of birth of Prince George  and Princes Charlotte been reversed, Charlotte would have become Queen of England , while  George became  King of Canada. No wonder the academics were holding their breaths waiting for Kate to deliver !

Now, you have to admit, any legislation with the ability  to create such havoc deserves to be properly recognized on its birthday, so maybe we should give consideration to making Statute of Westminster Day a national holiday – the  weather is lousy for barbecuing, but maybe we could combine the holiday with Black Friday and really have a party !

 

 

 

 

IMPAIRED CANOEING NOW ILLEGAL ? SAY IT AIN’T SO!

October 15, 2017

A very long time ago when the earth was  young I successfully defended a chap charged with impaired driving. The defence rested  upon the rather unique vehicle he was driving at the time of his arrest- a railway hand cart.

My client had acquired the  handcart at an auction, and tested it out (without permission) on a section of  the E&N railway track, finding that it still worked like a top. A few pumps on the handles and he was sailing down the track.

To celebrate, he invited a couple of buddies on board and they pumped the contraption down to the Red Lion Inn, a pub conveniently  located adjacent to the railway tracks, where they proceeded to get drunk as lords, and, on the return trip, attracted the attention of the Victoria constabulary.

The acquittal  was achieved because of the particular wording of the impaired driving sections of the Criminal Code. The offence, you see,  can only be committed by driving a motorized vehicle, and a hand -pumped  railway cart  simply doesn’t fit the definition!

Those same provisions of the Criminal Code apply to impaired boating, but, oddly,  until now, contain no definition of what constitutes a “vessel”, leaving it an open question whether you can legally paddle your canoe or kayak while ( to use a nautical reference ) you are three sheets to the wind. In the result, and depending upon where you live, some tipsy canoeists end up being charged, while others aren’t.

So, in the Spring of 2017, along came Bill C-46, legislation amending and modernizing the Criminal Code, including a re-vamp of the impaired driving provisions. The term “vehicle” was scrapped, in favour of the term “conveyance”, which the Minister (no doubt still smarting from my long ago hand cart win) sneakily defined as including railway equipment of all sorts.

The definition continued however, to specifically exempt  “a vessel propelled exclusively by muscular power”. To the great relief of a few of my paddling buddies, it appeared that tipsy canoeing and kayaking were to become legal.

In fairness, I suspect what the drafters of the legislation had in mind was exempting those who paddle inner tubes and  air mattresses, or inflatable party rafts a few feet off the beach with beer in hand, but definitions are tricky.

Before the champagne corks could even be popped down at the paddling club, the Stalwarts at the Canadian Safe Boating Council had a word in the Minister’s ear, and an amendment was swiftly proposed, and unanimously passed, tanking the exemption, and leaving us again without a definition   of “vessel”

This, unfortunately  puts us right back in the grey area that existed before. If it floats, you might  get tagged for drunk boating- something you may want to think about the next time you are lounging around on a pool noodle with a cold one in hand.

 

 

TAX CHEATS? THEM’S FIGHTING WORDS!

October 13, 2017

When  I found myself on the CRA firing line recently because I , like countless other  professionals and small business owners have used a private corporation as a method of  reducing taxes and splitting income, I was angry.

I pay a lot of taxes, dammit, and  I don’t cheat. I do however believe that it is every citizens right, indeed duty, to organize their affairs so as to pay the least amount of tax, and when I do so using long established,  mainstream tax minimization strategies such as incorporation, I don’t expect to have the rug pulled out from under me.

At the end of the day however, at least I’m a Big Boy- I’m a professional, and know how to navigate through the tax system, ( and the court system too, if it ever came to that) and I have access to professional tax and accounting advice. At the end of the day, I’ll be all right. What really makes my blood boil though is that CRA, has now shifted  their attention away from  the likes of me, who are barking back, to target the truly defenseless – the minimum wage earners at the bottom of  the heap.

CRA has indicated this week that it now intends to extract tax on employee “perks’- the discounts that every private sector worker seems to receive as a result of their employment. So, the free, or discounted meal a waitress receives, or the employee discount offered to retail staff, the free lift tickets given to resort employees and so forth, will now all be taxed.

Trust CRA to pick on the little guy. Its pretty disgusting.  Those perks are an important component of the overall compensation package for those who earn the least. Now, being a graduate of the Charles Dickens School of Business Management , employee perks were never a big deal in my firm (although we did offer free parking in the mall parking lot for those who could afford cars on their meagre wages) but perks are otherwise pervasive throughout private industry. Dental hygienists always have the whitest smiles, and  hairdressers sport the latest hairdos, just as loggers never want for fire wood, and personal trainers work out for free.

How does CRA intend to handle  the free coffee in the lunch room, or the beer fridge? Some employers offer on-site day care, or fitness facilities, so will those employees  be taxed if  they break a sweat?

Then too, what of those whose perks come not from their own employers, but from others? The concierge who gets a back-hander for referring hotel guests to a particular restaurant, or the ski instructor who gets to buy deeply discounted, top of the line gear, on the assumption that clients will then rush out to buy the gear they see their instructors using, or the realtor who gets a discount on their house deal from a lawyer they refer work too?  How does CRA intend to track and tax all the myriad ways in which the wheels of commerce are greased? Do I now have to report that bottle of scotch  from a grateful client, (and do those  free Canucks tickets have any value – honestly ?)

The whole issue of  the taxation of employee perks is a Pandora’s box that is best left firmly closed ( Unless , of course Mr Trudeau want’s the cost  of his tropical vacation with the Aga Khan added to his T-4 slip as a tavable benefit )

Funnily enough, since it is the Liberal government which has unleashed this attack on the poor  it was a Liberal Cabinet minister who has explained  it best- remember David Dingwall’s famous quote

“I’m entitled to my entitlements ?”

 

 

 

 

 

WHITHER PUERTO RICO ?

October 3, 2017

As we were reminded recently by President Trump, Puerto Rico is an island , as in “it is entirely surrounded by water.” NEWS FLASH, Mr President, it is also entirely surrounded, or, more aptly, ensnared, by American law.

Even the most mundane of laws can have a huge effect upon the very fabric of society. Something as prosaic as land title law can affect poverty rates in third world countries, and, something as subtle as a country’s regulations surrounding contingency fee litigation can impact a country’s health and safety regime. Dangle the right incentive in front of lawyers and just watch them go to town, ferreting out dangerous practices, and gleefully suing the corrupt and the negligent.

One such impactful law is the U.S. Merchant Marine Act of 1920, also known as the Jones Act. Venerable legislation dealing with seamen’s rights, and the regulation of maritime commerce within the US. Seemingly innocuous, it nevertheless has historically had a huge societal impact upon the island of Puerto Rico, and presently presents a major obstacle to the rebuilding of the island in the dreadful wake of hurricane Maria

Puerto Rico, as Trump instructs us, is an island, but it is also an American colony, and as such is considered a part of the US for purposes of the Jones Act, and unfortunately bears the full brunt of the cabotage provisions of the Act. Cabotage refers to the transportation of goods by water within a country, and the Jones Act requires that all goods carried by water between ports within the US must be carried by US flagged ships. Not only that, but those ships must be US owned and built, and crewed by Americans.

Accordingly, the only way a foreign flagged ship can deliver cargo to Puerto Rico, ( including emergency relief supplies, or supplies needed to rebuild) is by paying ruinously high customs fees. Instead, foreign cargo invariably enters the US through Florida, where it is off-loaded and re-loaded into American vessels before delivery to the island colony. , which imports pretty well everything. This inflates the price of everything, from food to automobiles. Some estimate that the cost of the Jones Act to the Puerto Rican economy over the past three decades approaches $30 billion. It is a huge handicap for the poorest part of the US.

Long before the arrival of Maria, the artificially high cost of living, courtesy of the Jones Act, coupled with a sluggish economy, where the government is the single largest employer, had lead to an exodus from the island. Over 400,000 residents have migrated to the mainland, causing a significant erosion of the tax base, and leaving the colony unable to service its massive $72 billion debt. Individual Puerto Ricans would each need to chip in about $1,400 (or 9% of their average per capita income) just to meet this year’s interest payments, which is a whopping $5 billion.

As the first of Puerto Rico’s bond payments go delinquent, a major financial crisis looms within the US, since much of the massive debt is held by US pension funds. Puerto Rico’s default quickly translates into the pension funds default, with a predictable ripple effect.

All laws cause ripples of one sort or another I guess, its just that some are larger than others.
President Trump has, grudgingly, ordered a short term suspension of the Jones Act, in ordeR to get relief supplies flowing, but the relief is  only temporary, and the damage had already been done, long before  Hurricane Maria blew ashore.

VOTE EARLY, VOTE OFTEN!

September 29, 2017

The first item on my “To Do”list tomorrow morning is to trudge down to the local polling station to do my civic duty. One of our municipal councillors got lucky in the May  provincial election, and got himself elected to the provincial legislature, necessitating a by-election.

It happens, and at least we got three years service out of our councillor before he jumped ship.

Methinks however, it happens too often.  Consider that former Premier Christi Clark, announcing that she was “done with public life”, has resigned, not only as leader of the liberals, but as MLA for Kelowna West, before serving a single day in the post. Consider too that the first politician  to join the rush to replace her was none other than Dianne Watts, the sitting MP for South Surrey -White Rock, who is vacating her federal seat to run.

While there are many reasons why a sitting politician may honourably resign,  in my opinion, naked political ambition is not one of them. Electors have a legitimate expectation that those they elect to public office will, barring the unforeseen, diligently serve out their term.

Constituents go unrepresented while an elected seat is vacant, so my heart goes out to anyone  in Kelowna West  or South Surrey – White rock with a beef  with government  bureaucracy that needs  the intervention of the local MP or MLA.

Politicians won their seats initially, by defeating a number of other well qualified individuals, both at the nomination  stage, as well as in the election proper, most of whom I would venture to suggest, would have done an equally satisfactory job, and might have actually served out  their entire term, without succumbing to the urge to chase  after other political office

By- elections are expensive, and disruptive. There should be a penalty imposed upon any politician who causes one, without proper cause. My Saturday “To Do” list is long enough already !

JUST SAYIN’

September 25, 2017

Now, I know that things aren’t always what they seem. Lord knows how many times I’ve read a press account of a case I was involved in, and been convinced that the article was describing a different case entirely.

So, when I come across something that doesn’t, at first glance, make sense, I try to suspend judgment: maybe I don’t have all the facts or fully appreciate all the nuances of the situation.

So it was last weekend when I encountered our tax dollars freely being spent by Parks Canada.

The recipient of  Ottawa’s largess? none other than a BI-LINGUAL, SOLAR POWERED, WHEELCHAIR- ACCESSIBLE, SELF-COMPOSTING  OUTHOUSE– located on a small island accessible ONLY by kayak.

Although shaking my head, I’m trying hard to suspend judgment – There must be a sensible, cost -effective reason for the building of such an edifice – mustn’t there ?