bob tarantino

BT Review: Empire

Empire, by Orson Scott Card (2006) (Publisher: Tom Doherty/TOR)

Maybe there's a great novel out there which chronicles a new American civil war fought not on lines of North and South, but Left and Right.  This book isn't that novel.  Spoilers below.

"a tension that lies at the heart of modern democratic governance"

It's been a busy seven or so days, having spent a good chunk of last week in Ottawa attending a conference, and then this morning moderating a panel discussion about the CRTC's 2004 decision on whether to allow Canadian cable companies to carry al Jazeera.  All of which left little time for blogging.  Oddly enough, however, it left plenty of time for commenting on other people's blogs.  The comments revolve around the release last week of the Supreme Court of Canada's decision in Charkaoui et al.  I weighed in on the discussions over at Andrew's place and Dawg's place.  My bottom line?  I think the Court's decision is fair, considered and correct - and I think media coverage of the decision, particularly the Toronto Star's inexplicable Saturday edition which trumpeted the ruling as if it were the Second Coming, has been puerile and startlingly willing to disseminate flatly incorrect information.  The decision did not accomplish nearly so much as some of the coverage implied, nor was it as stunning a rebuke of the government position as some commentary seemed to wish.  TheCourt.ca, as is to be expected, has a great round-up post collecting informed commentary from a variety of sources, and anyone who is interested in the matter is strongly encouraged to peruse the links provided there.

"Problem is, it's mostly nonsense"

Innummeracy Innumeracy [spelling is a pretty good idea too - ed.].  It's a bad thing, I tells ya.  Especially when employed in the service of political rhetoric.  Try this on for size, courtesy of Michael Coren (hat tip - Shaidle):

A few examples: Those much-despised 1950s were, we are told, oppressive, confining and prudish. Yet since then the teenage suicide in North America has increased by 5,000%, which is a figure so extraordinary that some of you probably think it a misprint. No, five times one thousand. The allegedly dark days of half-a-century ago seldom saw young Canadians and Americans try to, and often succeed, in killing themselves. Not now. [emphasis added]

Um... no. 

On it's face, that statistic should have either stopped Michael Coren or his editor in their respective tracks - a 5,000% increase in teen suicide rates would have meant that if the rate in 1955 was 1 per 100,000, then the rate in 2005 was 50 per 100,000.  According to the US American Center for Disease Control, "From 1952 through 1992, the incidence of suicide among adolescents and young adults nearly tripled" - which would be an increase of, say, somewhat less than 300%.  Information on Canadian youth suicide rates is a bit harder to come by, but this StatsCan report from 2002 (start on page 22 of the .pdf), certainly reveals no increase of the magnitude which Coren is asserting.  This Child & Family Canada page asserts a four-fold increase for male teen suicide rates between 1960 and 1991.  This article (from the Harvard Institute of Economic Research) asserts a tripling in suicide rates for teens over the last fifty years.

I don't think the 5,000% number is a "misprint", I think it's a fabrication.  Why were neither Coren nor his editor willing or able to fact-check his rather startling conclusion?

a 'very dangerous game'

Would it kill certain media outlets in this country to, I don't know, accurately report the news every once in a while?

Take this Maclean's piece.  Please.  For context purposes, note that, according to the byline currently at the top of the report, it was filed on February 15, 2007 at 12:28pm EST.

The Harper government may be staring down the barrel of an unprecedented Constitutional battle if it goes ahead with its refusal to respect an opposition bill calling on Canada to respect its Kyoto engagements.

The Harper government has never, not once, even insinuated that it will not abide by Bill C-288.  In fact, if you click through to the link with which Maclean's highlights "refusal", (see here), the first sentence of the Yahoo! report is "Prime Minister Stephen Harper says he'll respect the Kyoto climate-change legislation forced through by the opposition".  So, as evidence of assertion X, Maclean's is citing a report which states not-X.  [The entire media scramble over the purported "refusal" of the government to abide by Bill C-288 was started by this Toronto Star piece, which, as I explained here, is another example of horrendous reporting, since even though it repeatedly quotes a Liberal MP as saying that the Tories are on the verge of a coup d'etat, it provides no evidence whatsoever that the Tories are preparing to ignore the bill, and in fact is forced to admit that the Tories "did not explicitly say they would ignore the law").]

Back to the Maclean's piece.

"... The debate about whether Canada will comply with Kyoto is now over," Stewart Elgie, a law professor at the University of Ottawa, told the Canwest News Service. "Parliament has answered yes. The only question now is how we will do it."

No idea how Stewart Elgie is, but he may want to familiarize himself with how laws are passed in this country.  Canada's Parliament is a bi-cameral institution, meaning that it consists of two houses: the Commons and the Senate.  In order for a bill to become law, it must be passed in identical form by both houses, and then assented to by the Governor-General.  Thus far, of those three steps, only one has occurred: Bill C-288 has been passed by the House of Commons.  "Parliament" has not, in any meaningful sense, "spoken".  At best, the Commons have "spoken".  Whether Bill C-288 will ever become law, or the ultimate form of that law, is still an open question. [Of course, there is an alternative argument (one that is actually correct) that by ratifying the Kyoto Protocol in 2002, Canada's Parliament "answered yes" back then to the question of whether to comply with it, but that isn't what Elgie, or the reporters who are conveying his words, are getting at.]

Back to Maclean's.

But the Conservatives have hinted they’re considering ignoring the law outright and facing either the political or legal consequences that would no doubt follow.

They've "hinted" at this?  When?  Where?  Provide a quote, please.

"It's really a toothless tiger,” Environment Minister John Baird said. “All it does is talk about more plans and more studies … we need real action."

That's your quote?  Is nobody over there able to draw a distinction between saying "this bill sucks" and "if and when this bill becomes law we're not going to obey it"?  Seriously?

The Liberals, for their part, have said Harper’s refusal amounts to nothing less than the usurping of legislative powers by the government - a "coup d'état", as they've termed it.

Once again, where is this purported "refusal"?

"The prime minister can't act like an emperor and decide he'll respect one law but not another one he doesn't like," Liberal MP Pablo Rodriguez, who introduced the bill adopted Wednesday, said. "He can't do that. This is a democracy. Democracy has expressed itself."

You don't say.  Didn't a single reporter think to say to Pablo Rodriguez, "excuse me, sir, but could you please point to an example of when the Prime Minister said he wouldn't respect this law?"  Did a single reporter think to themselves, "hey, what are the odds of this bill being passed by the Senate, at which point "democracy will have spoken"?"  People (not least among them members of the professional commentariat) often bemoan the supposedly disgraceful levels of political discourse in this country.  They should feel free to take a look at themselves first.

Neighbourhood Watch

James Bow marks five years of blogging.  Nice!

"sympathetic to this government"

Canada's worst newspaper once again evidences why it so richly deserves the sobriquet with this piece of hack journalism about recent federal appointments to the Judicial Advisory Committees.  Unfortunately, the idiocy appears to have spread, prompting not only a CP follow-up, which is screeching its way around the Toronto Star, but an oddly timorous report from Macleans.ca and even regrets from Andrew Coyne.  The smear continues for a second day with this piece, which mostly regurgitates the same misplaced insinuations and is, again, inexplicably placed on the front page (well, "inexplicable" if one assumes that news coverage is meant to be unbiased).

Once you wade through the lousy reporting, here's the bottom line: the government is using the slots reserved for partisan political appointments for... wait for it... partisan political appointments.  Sort of.  In some cases.  Kinda.  Perhaps 16 out of 33 times.

Whither Kyoto?

Over at Staples' place there's an interesting debate occurring in the comments to this post, which turns on the question posed by this Toronto Star piece, namely: what are the options of the Conservative government if Bill C-288 becomes law?

A bit of background.  Bill C-288 (the current draft of which can be found here) is a federal private member's bill introduced by Liberal MP Pablo Rodriguez.  The Bill, which carries the title "An Act to ensure Canada meets its global climate change obligations under the Kyoto Protocol", has passed second reading in the Commons and gone through committee, and is scheduled for third reading on February 14, 2007.  Assuming it passes third reading (which is likely, since each of the Liberals, the NDP and the Bloc support it), it will then go to the Senate, where its prospects remain uncertain (since the upper chamber is dominated by Liberal appointees, it would likely pass, but it's an open question how long it will be before the bill goes to a vote).

Before going further, I'll indulge in some political analysis.  I'll take the time to note that Bill C-288 is a startlingly cynical bill, coming as it is from a member of a party that did approximately nothing to implement the Kyoto Protocol.  As a result of the lack of efforts under successive Liberal governments, Canada was in violation of its obligations pursuant to Article 3, Paragraph 2 of the Kyoto Protocol (the full English text of the Protocol can be found here) - Art. 3, Para. 2 obliged each signatory to "by 2005, have made demonstrable progress in achieving its commitments under this Protocol".  As shown by this Sierra Club report from December 2004, the Liberal governments had made little to no progress.  I will also note that this is the kind of legislation which, if played correctly by the Conservatives, could be parlayed into a majority government.  The commercials practically write themselves: somber music plays as images of dreary, empty offices and shops flicker by, forlorn owners hungrily eyeing the vacant streets for customers; wide-angle shots of endless highways devoid of vehicles but populated by huge lines of shuffling pedestrians, prohibited from using their cars to get anywhere; fast-cut shots of masked and armed government agents storming factories as they nationalize polluting industries... and then the ominous voice-over: "the Liberals and NDP want to shut down more than 30% of the Canadian economy in order to meet the Kyoto targets, targets which no other country is close to meeting."  Close-up on a shivering, sad-eyed child, buried in blankets in a desperate attempt to stay warm after it has become illegal to heat your home.  "Choose your Canada - Vote Conservative".  I'm not saying it's accurate, but I'm sure it would be tempting for Tory strategists.  A six-week campaign of commercials like that, and Stephen Harper would be rolling into the Saddledome to celebrate his majority victory, heralded by Stephane Dion's yipping dog "Kyoto" and riding a bucking Mark Holland, while using Holland's eyebrows as reins.

Whatever.  What has prompted the debate is the intimation from the Star article that the government would not abide by Bill C-288 if it became law (even assuming it passes third reading in the Commons, it still would need to be passed by the Senate and then receive royal assent from the Governor-General before "becoming law").  It's a bit of spin by the Star, prompting Rodriguez to quail about a "coup d'etat" - if you read the article, though, even the Star is forced to admit that the Tories "did not explicitly say they would ignore the law", it's just taht some MPs have just called it "useless" and predicted that "their government’s fate was not bound to it", which is more of a political prediction than a proposal.  That didn't stop the Star from breathlessly repeating the "coup d'etat" line and calling up some law professors to get their reactions ("they'd be breaking the law"!).

But what does Bill C-288, as presently drafted (and it could still be revised by the Senate), actually require the government to do?  The answer ranges from "not an awful lot" to "it's not quite clear".

Sections 5(1) and 7 are really the heart of the bill.  Section 5(1) requires the Minister of the Environment to table a "Climate Change Plan" within 60 days of the bill becoming law, which is to include a "description of the measures to be taken to ensure that Canada meets its obligations under Article 3, Paragraph 1 of the Kyoto Protocol".  Article 3, Paragraph 1 of the Kyoto Protocol is the one which provides that signatories must reduce "their overall emissions of [greenhouse] gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012".

Section 7 is the more bizarre section, so it warrants quotation:

(1) Within 180 days after this Act comes into force, the Governor in Council shall ensure that Canada fully meets its obligations under Article 3, paragraph 1, of the Kyoto Protocol by making, amending or repealing the necessary regulations under this or any other Act.

(2) At all times after the period referred to in subsection (1), the Governor in Council shall ensure that Canada fully meets its obligations under Article 3, paragraph 1, of the Kyoto Protocol by making, amending or repealing the necessary regulations under this or any other Act.

On its face, the section doesn't actually make much sense: how can the Governor in Council (i.e., the federal Cabinet) ensure that Canada "fully meets its obligations under Article 3, paragraph 1, of the Kyoto Protocol" within 180 days, when Article 3, Paragraph 1 of the Kyoto Protocol doesn't require or measure results until 2012?  Is the country supposed to cut its emissions by hundreds of megatonnes in the space of six months?  How?

Setting aside any quibbles about the wording, though, let's say the Star's torqued description of the Tory reaction is accurate, and they simply refuse to do anything - they don't table a "Climate Change Report" or table one which is prima facie nonsensical (e.g., it consists of three words: "Go F**k Yourselves"), and explicitly say they won't do anything to abide by Section 7.  Can anyone do anything about that?

I'm not sure of the answer, but on first blush I don't think there's much that anyone could do.  The Star quotes University of Ottawa professor Stewart Elgie as saying "someone could take them to court and get a court order", but I'm not sure that's the case - I'm not sure what that court order could possibly say.  "Breach of statute" is not a cause of action under Canadian law (see the Supreme Court of Canada decision in The Queen (Can.) v Saskatchewan Wheat Pool).  If someone wanted to sue, they would have to argue that they had suffered damages arising from the negligence of the Cabinet (i.e., a tort claim) - but even on my limited knowledge of tort law, that seems like it would be a fantastically hard case to make.  What about a claim that the failure to abide by the act is a violation of someone's Charter rights?  The Operation Dismantle case (text of the Supreme Court decision is available here) would seem to be authority against the viability of such a claim.  Okay, sez you, but what about a "court order", pace Elgie, that instructs the Cabinet to abide by the law?  No dice: Section 22(1) of the federal Crown Liability and Proceedings Act provides that "a court shall not, as against the Crown, grant an injunction or make an order for specific performance" - in other words, a court can't force the government to do something or refrain from doing something (hat tip to "Alan", Staples' comments, who I assume is the ex-Occam).  Query whether someone can sue "Cabinet" or individual ministers as distinct from the Crown.

Of course, this is almost entirely speculation on my part since it is well outside my area of practice, but it's an interesting question: when can you force the government to abide by its own laws?  Absent any measurable damages or a violation of the Charter, I'm not sure you can.  Anyone out there have any other ideas on the matter?

The Night the Blogfather Came to Town

"Did you hear that?"

"No."

"That sound.  You don't hear that sound?"

"... No.  What the hell are you talking about?"

"I could have sworn I heard a sound."

"Pretty sure you didn't."

"... Nope, there was definitely a sound."

"You sure you're not just losing your mind?"

"Pretty sure.  You know what it sounds like?"

"... Are you waiting for me to give you an answer?"

"Yes.  Well, not anymore.  Anyways.  It sounds like, like... like a blogstravaganza."

"What the hell is a 'blogstravaganza'?"

"A gathering of bloggers.  And blog readers.  And their various accompanists."

"What are blog 'accompanists'?"

"Boyfriends, wives, girlfriends, husbands, buddies, enemies... you know, pretty much anyone who wants to show up."

"Ah.  Who the hell came up with 'blogstravaganza'?  That's a stupid name."

"Bob Tarantino."

"Who the f**k is Bob Tarantino?"

-----------------------------------------------

Saturday, February 17th, 2007 on the second floor of The Fiddler's Green, located at 27 Wellesley Street East in downtown Toronto, just east of Yonge and across from the Wellesley subway station.  Join us as Damian Penny makes his annual pilgrimage to the centre of the universe - everyone is welcome.  No cover and nothing is provided (other than good conversation and the occasional prospect of a brawl) - pay your own damn way, deadbeat!  See y'all there.

UPDATE: 8pm.  Don't know why I keep forgetting to mention that.  People will start showing up at 8pm.

BT Review: Terror and Liberalism

Terror and Liberalism, by Paul Berman (2003) (Publisher: WW Norton)

I finished this book a couple of weeks ago and I've been trying to figure out how I feel about it ever since - which is a good sign, I think: any book that poses questions which actively stay with you past the turning of the last page has something going for it.  I also have to confess a certain fondness for the book which arises from personal nostalgia: reading Berman reminded me of nothing so much as readings from my time as a philosophy undergraduate.  The book attempts to be an intellectual history of a totalitarian strain in Islamist theology (derived from the writings of Sayyid Qutb), and an argument for why and how liberals (in the American political sense of the term, i.e., let's call them "left-of-centre") should be opposed to said strain.  Since many only seem capable of reading books like this through the prism of Iraq, in the final chapter Berman expresses at least a skepticism, shading into opposition, with regards to that war - which is somewhat odd, since I could have sworn he was at least mildly in favour on liberal interventionist grounds.  But my tone in the first part of the preceding sentence should betray the fact that I think the book is best appreciated without reference to Iraq whatsoever.

"Can Photographers Be Plagiarists?"

Slate has an interesting "slideshow" which explores the convergence of copyright, plagiarism, postmodern sensibility and the art of photography.  It's worth a read for anyone interested in how the vagaries of intellectual property law actually play out in the real world (e.g., it's all very nice to have a copyright interest in a work, but if you don't have the money to bring a claim, you're out of luck (or, in the case of at least one artist mentioned in the slideshow, you get kicked off of eBay after your work has (re)/(mis)appropriated)).

"common sense has prevailed"

A useful object lesson today for those who regard judicial decisions as holy writ: the Ontario Court of Appeal, in an unusual five-panel unanimous decision, overruled its own horrendously flawed Household Realty v Liu decision from 2005, a decision which had basically facilitated title fraud, forcing numerous Ontarians through the no doubt enjoyable prospect of losing their homes.  My earlier post about Susan Lawrence's court battle can be found here.  Everyone who owns real property should take a second to whisper a silent thanks to Lawrence for having the fortitude to undergo the stressful process of not only having her house stolen out from under her, but then fighting through both a trial and an appeal (and racking up likely tens of thousands in legal fees), in order to end up at what should have been the obvious result from first instance: that an innocent homeowner should not face the burden of fraud.  If anyone should, it should be the government which vouches for the land titles system.

"It can't be"

Whatever else you want to say about climate change, let's agree that the debate over it is resulting in acres of ink being spilled (please note I avoided the obligatory "hot air" reference).  Some of that ink is thoughtful, some of it isn't.  Some of it makes no damn sense whatsoever.  Take Richard Gwyn's column yesterday, which I think contains my favourite piece of muddled prose so far this year.  Poor Gwyn is hamstrung by his need to write honestly (whatever else I may think of him, I concur he is usually genuine in his attempt to put to paper his good faith convictions), and the need of his audience to hear what they want.  Herewith:

Contrarily, if responses of this kind aren't needed, then global warming can't be the kind of apocalyptic problem that it is being presented to us as.

It is apocalyptic, most certainly potentially. Our responses so far, though, have been timid, conventional, banal, and self-deceiving. [emphasis added]

Six words, and it would take a book to unpack them.  The sentence begins with an assertion ("[global warming] is apocalyptic") which he manages to disprove not less than three words later.  Global warming is positively "apocalyptic", except that it is only "potentially" apocalyptic.  Certainly.  I think.  Poor guy sets up his own straw man and then manages to get bogged down in the hay as he attempts to lance through it.

Everyone Submit Your Law School Applications *Right Now*

One of the most enjoyable blogs I've come across recently is abovethelaw.com, which bills itself as a "legal tabloid".  If you don't have a taste for the imbroglios, indiscretions and otherwise enticing behaviour of US lawyers and law firms, it might not be for you.  For most everyone, though, this post should prove an eye-opener. 

Every few years the large US firms go through a salary war, whereby one of the big New York City-based firms (the city being the location of firms which are generally the largest, most profitable and most prestigious in the country) takes the plunge and increases the salaries of first year lawyers (i.e., those who have just graduated from law school).  The salaries of those higher up in the hierarchy are then ratcheted up so as not to get any noses out of joint.  One firm having made the first move, this inevitably results in a domino effect, such that, in order to maintain their competitive standing in a bid to continue to attract the best and brightest (or at least the most masochistic) graduates, all the other big NYC firms raise their salaries.  This then results in a trickle-down effect through the second- and third-tier markets (e.g., Chicago, Boston, Washington, LA, Atlanta, etc.), who need to up their own salaries in order not to be blown out of the water by the larger markets above them. 

The post I linked to provides a handy guide to current base salaries for lawyers in big NYC-based firms (note: "base" means it does not include year-end bonuses).  Hint: it starts with "160" and ends with "000".  A list of LSAT prep courses can be found here.

"died several hours later from massive head injuries"

Another winning moment in Canadian criminal sentencing:

Two men sentenced to life in prison for kicking Burlington student Mathew Daly to death each had their parole eligibility set today at 13 years and 12 years, respectively.  Another man who was also convicted in the brutal slaying will be set free later today.  This means Sam Nop, 24, and Fadil (Neil) Mujku, 23, who were both convicted of second-degree murder in the brutal beating death of the Burlington college student, could be out of prison in six or seven years and Stephen Papadopoulos, 26, because of a two-for-one credit for time served, will be set free later today.

Excellent work.  This likely requires a bit of explanation:

Because Canadian law provides for the 2-for-1 credit, Nop — who's spent five years and nearly four months in jail — can apply for parole on Oct. 10, 2014, while Mujku can seek to be released a year earlier.  Because of the 2-for-1 credit, it means the 26-year-old Papadopoulos has served an equivalent of nearly an 11-year sentence. As a result, Justice Dawson sentenced him to one more day in jail and three-years probation, meaning he will be released this afternoon.

It doesn't, actually.  It's entirely at the judge's discretion as to how much "credit" to give convicted criminals (see paras. 44-46 of the Supreme Court of Canada decision in R v Wurst).  The "two-for-one" credit rule is a judicial creation, and entirely perpetuated by the judiciary - because it is an entirely malleable standard, which can be varied by a judge in his or her discretion.  It's worth remembering that, as described by the Supreme Court, the sole purpose of the super-credit is to account for the "harshness of the [pre-trial] detention due to the absence of [educational, vocational and rehabilitation] programs".  In short, beat someone to death and you get your sentence cut in half because you didn't, I don't know, get a chance to bake cookies or play in a vegetable garden.

"extremely invasive"

Teresa Scassa offers some thoughts, and numerous questions, on the nexus of privacy laws and "citizen journalism" (hat tip: Geist).  If you're recording something (say, images of people skating in Nathan Phillips Square in downtown Toronto, or something perhaps more newsworthy, like a car accident or building evacuation) with your cellphone or handheld camera and post it on the web, are you violating any privacy rights?  Should the answer be different if, instead of posting the footage to your own website or YouTube, you send it to a local news channel and they broadcast it?  If the answer is different, why should it be so?  It's an issue which often comes up in the context of filming documentaries, and we remain, unfortunately, without any clear answers.

The Deep Funk 02.01.07

You've just released an album which will go on to sell more than ten million copies and you've become one of the biggest rock stars of late-90s rip n' read boom America.  What do you do for an encore?  Sample a Metallica song, gather up a bunch of rednecks, muscle cars, explosions, fur coats, porn stars and your "midget" sidekick Joe C., and let loose with some of the flyest boasts a white guy from Detroit ever did see.