THE TROUBLE WITH THE CHARTER
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VICTORIA -- If nothing else, Bud Smith is candid. During a recent charter conference at the University of British Columbia, the new attorney general addressed an audience of what he called "the finest legal minds in North America" and gave them an earful. The target of his criticism was the judiciary and its ever- increasing power under the provisions of the Canadian Charter of Rights and Freedoms.
To the layman, Smith made a good case against the legal myopia and arrogance that has crept into our judicial system with the charter. His critique could not have been lost on the audience which was studded with judges and lawyers.
What bothers Smith, and should bother us all, is the gradual erosion of legislative prerogative by the courts. With the arrival of the charter, appointed judges gained the right to overturn decisions made by elected parliaments.
"Just a few years ago, matters of social and economic policy were regarded as the exclusive domain of legislators. The will of the people as expressed through elections, provided the basis for major social and economic policy decisions," Smith said. "Political give and take resolved conflicting views. The resulting decisions, laws, regulations and policies were compromises, that great Canadian art form," he said.
That's changed. Now, if judges feel that someone's rights under the charter have been infringed, they can wipe out any decision, any law, any regulation or policy that led to the infringement. The result of this, Smith says, is that Canadians are no longer able to determine their social and economic future by virtue of their free vote. There's a great deal of merit to that argument. Take Smith's example of the recent controversy over doctors' billing numbers.
Earlier this year, the B.C. Court of Appeal decided that the provincial government did not have the right to restrict the issuance of billing numbers, necessary for doctors to practice in this province. The effect of the decision was that any doctor who meets the professional criteria can now practice in British Columbia.
On the surface, that would appear to be a good thing. It certainly seems fair, which, I suppose, is why the court decided in the doctors' favor in the first place. But there are other considerations which the court did not have to deal with.
Before the court's decision, there were 6,000 doctors in B.C., all paid through the Medical Services Plan which is, of course, financed by us, the taxpayers. Since the judgement was handed down, that number has increased to 7,000 doctors. Smith estimates that each additional doctor costs the taxpayers $250,000 a year. That figure includes hospital services and prescription drugs.
When the government decided to restrict billing numbers, it believed that there were enough doctors in B.C. When the court struck down the restrictive law, it only looked at whether or notthe decision reflected the spirit of the charter.
Smith argued that the billing number issue had been debated at length in every constituency prior to the 1986 election. In other words, the matter had been an election issue, and since the voters returned the government to power, they had endorsed its position on billing numbers.
Therefore, Smith said, the court had gone against the will of the people when it eliminated billing number restrictions. It's not a bad argument, but it does have some flaws. It is in the interest of the public to have some protection against bad government decisions. If Canada had its present charter in the 1940s, there would not have been second-class citizens in this country. The Japanese would not have been put into containment camps; the Chinese would have had the right to vote.
Still, to a nation which has been governed since birth by common law, the Charter of Rights and Freedoms can be somewhat troublesome. The difference, in simple terms, is this: whereas before our basic rights consisted of everything not specifically excluded, our basic rights are now specified under the charter.
Anything not specified by the charter, such as property rights, can be considered a little shaky.
The Americans are used to living under a charter. They have defined their basic rights ever since they brought in the constitution. But Americans are also used to intensively debating any constitutional controversy. We not only tend to meekly accept court decisions, we accept the worst judicial appointment without a word of protest.
Smith predicts that will change. As the courts assume more and more power, Canadians, he says, will want to examine the people exercising that power. Twenty years down the road, judicial appointees will be grilled and occasionally rejected, just as in the United States.
"Welcome to the world of politics," he told the judges at the conference.
THE PLAGUE ON BOTH THEIR HOUSES
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VICTORIA -- For years, commercial interests have had the upper hand in the ongoing battle with environmental groups, but lately it appeared that the fortunes of war are changing. Business, frankly, has been having a lousy time of it.
First the forest industry lost South Moresby in the Queen Charlottes. Instead of yielding its bounty to the chain saws, the island was declared a national park reserve. Former forest minister Jack Kempf still can't get over that one.
Then the provincial government decided to declare Vancouver Island's Strathcona Park off limits to future commercial exploitation, That blow to the soft underbelly of the mining industry got B.C. Mining Association president Tom Waterland so mad, he's still writing indignant letters to newspapers far and wide.
Now it looks as if the environmentalists have scored a victory against B.C. Forest Products in the fight over the Stein Valley, west of Lytton. Hold your breath, though. It isn't over yet.
Until recently, the question was simply whether the profits to be realized from logging the mid-Stein Valley outweigh the environmental costs. But a few weeks ago, the anti-logging lobby introduced a new factor into that equation. They claimed that logging the mid-Stein was not only environmentally unsound, but economically unfeasible.
Their claim is based on an independent consultant's report. The report, prepared by Blais McNeill Inc. of Ste. Foy, Quebec, says logging the mid-Stein will at best be marginally profitable, but only if lumber prices are high.
The report, commissioned by the Nl'akapxm Nation Development Corporation, also says that logging and milling jobs will be lost in Lytton, Lillooet and Boston Bar, whether or not the Stein is logged.
The report goes as far as to suggest that the industry's determination to log the valley may be fuelled by motives other than profitability.
One factor, the report says, "could be the industry's wish to establish precedence of timber harvesting rights over native Indian land ownership claims, or alternatively, the possibility of losing timber quota as a result of not harvesting."
While the industry has painted a picture of economic gloom and doom for the towns in the area if the Stein isn't logged, the consultants say the effects would be minimal.
According to B.C. Forest Products, 200 to 300 jobs are riding on the Stein operations. The consultants put the figure at 28 direct jobs and 31 indirect jobs. They estimate the economic loss at about $2 million a year.
Such disparate figures would suggest that someone is lying or to put it more charitably, not doing his home work. So far, however, neither the consultants nor the industry are backing down from their positions.
Patrick Armstrong, spokesman for the industry, sticks with the figure of 300 jobs lost if the Stein isn't logged. He has suggested that the consultants did exactly what those who hired them expected of them ©© come to the conclusion that logging the Stein isn't worth the effort.
Whom do you believe? I'm under no illusions that both sides will go to any length to win this battle. That includes, if not fudging figures, presenting the best-possible scenario for their case. Perhaps they're both stretching the truth to win the general public over to their cause.
And that makes things rather difficult for the rational observer who has no stake in either camp. He is bound to be more confused than ever. I know I am.
I started out supporting the environmentalists. It was a comfortable position, easily defended from an emotional point of view. Then I visited the area and found myself gradually pulled into the other camp.
Most residents I talked to supported the plan to log the Stein. It was, after all, their livelihood, not mine or that of David Suzuki that was on the line. Now, I'm once again uncertain.
One thing has become clear. There is no way any more a layman can be sure that his own conclusions are the right ones. The issue is so loaded with propaganda, emotional distortion and outright liesthat one is tempted to wish the plague on both their houses. The only thing left is to wait for the government to make the decision for us. Unfortunately, there's no assurance either that the government will make the right decision.
At this point, I predict the government will come down on the side of the industry, not because it is convinced that it's the right decision, but because it has to throw the industry a bone after having taken away two.
CONCERN FOR CRIME VICTIMS AT LONG LAST
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VICTORIA -- Picture yourself as a victim of crime, having to testify in court. For many people it can be an extremely intimidating, even terrifying experience.
The closest most people come to a court room is watching a crime show on television, but no matter how realistic the show, it isn't the real thing. The only ones who are able to maintain their cool in court are usually the criminals. They've got the experience. The victims are scared stiff.
Imagine a 70-year-old woman in the witness stand looking at the person accused of having hit her over the head and snatched her purse.
"Do you recognize the person who assaulted you? Can you point him out?" That simple act alone will bring back all the trauma associated with the crime. It gets worse when defence counsel for the accused starts in on her.
Enter the provincial Victim-Witnesses Services Program, designed to take some of the intimidation and unfamiliarity out of the justice system.
The program is already working in 30 communities across British Columbia. Smithers and Kelowna were added only last week. Linda Light of the solicitor general's Police Services Branch says that eventually, close to 50 communities will have the program in place.
The program is police-based. That is, the local police are responsible for its overall implementation, but the day-to-day affairs of the program are administered by a co-ordinator, hired from outside police ranks. The co-ordinator in each of the communities is the only one paid by the program. He or she is in charge of hiring and training volunteers.
The main purpose of the program is to prepare victims of crime for whatever awaits them as the case proceeds through the justice system. Instead of having to appear in court ill-prepared and at the mercy of defence lawyers, whose job is to defend their clients, not protect the victim, they can now take advantage of the many services provided by the Victim-Witness Services Program. Here are some of the services provided. Victims of crime will be briefed regularly on the progress of the investigation. They will receive emotional support. They will get assistance in filling out forms such as applications for criminal injury compensation.
Child care will be provided for victims during any interviews they may have to attend. The program will also provide transportation to court appearances and, if necessary, send someone along for support. Witnesses are made familiar with the court system and given tours of the court before they have to testify.
Victims are also counselled on how to protect themselves against further victimization. If the crime was of a spousal assault or sexual nature, they will be referred to the appropriate agencies. Light says the program was long overdue. Somehow, she says, we took it for granted that the justice system left no stone unturned to be fair to the accused, while forgetting about the victim. Staff Sergeant Dennis McKay of the Smithers RCMP voices similar sentiments. He says he expects the Victim-Witness Assistance Program to solve a lot of problems that have been ignored until now.
The co-ordinator for the Smithers area, he says, has already been hired and is about to attend a two-day workshop preparing her for her duties. Because the population of Smithers isn't big enough for the program, the towns of Hazelton and Houston have been included. "The victims have always been the forgotten people. Nobody has been looking out for them. Hopefully, this program will change that," McKay says.
As a reporter, I know how right McKay is when he says nobody has been caring a hoot about the victims of crime. Having covered more trials than I care to remember, I have often felt sorry for the naivete of crime victims having to testify.
By the time they were put through the wringer of cross examination, some of them were close to a nervous breakdown. Many lost their respect for the justice system because they felt harassed. It was no way to treat innocent victims in court.
With the help of the new program, victims of crime may have a chance to stand up to overbearing defence lawyers without feeling intimidated. They may even make it through a trial without being convinced that "the law is a ass."
Because most of the work will be done by volunteers, the cost of the program is not excessive. In Smithers, the government grant to get the program rolling was $14,875, in Kelowna $10,200. All of which proves that it's not how much money the government spends, but what the money is spent on. In the final analysis, the whole damn Coquihalla Highway counts for less than one people-oriented program such as this. Too bad politicians don't always seem to know that.
IT'S BAD EVEN WHEN THE WHOLE TRUTH IS OUT
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VICTORIA -- Time to set the record straight. Yes, the provincial government lowered welfare rates for "employable" social assistance recipients by $50 a month, but that's only half the story.
The other half is that the government, rightly or wrongly, brought in those changes for a reason. It wants employable welfare recipients to work rather than be dependent on public assistance. While taking $50 away from welfare clients may be considered a punitive measure, it was accompanied by a number of other, more positive measures the public is largely unaware of. For instance, the ceiling for income welfare recipients may earn without having anything deducted from their basic allowance was raised.
For instance, welfare recipients undergoing training or looking for work may claim a transportation allowance. Single parents who find work can claim a work transportation allowance of up to $90 a month for one year, after getting off social assistance.
For instance, single parents who leave income assistance and find employment are eligible for additional day care assistance, up to $150 a month above the regular day care allowance. For instance, employable welfare recipients can receive counselling and training in finding employment.
Full medical and dental coverage at no cost is available to single parents on income assistance, whether they are classified as employable or unemployable. All other employable income assistance recipients will get emergency dental and medical coverage when required.
Social Services Minister Claude Richmond says the media have totally misrepresented the latest changes in the welfare system. The cuts, he says, were given very prominent news coverage, while the other changes went virtually unmentioned.
Can't argue with him on that score. Inadvertently or otherwise, the media did, indeed, go to great length, describing the cuts and interviewing people who are affected by them. Needless to say they were upset. Who wouldn't be if someone took $50 out of their pockets, no matter what the reason.
But in fairness, the other changes should also have been publicized. If the public at large chooses to be angered by their politicians, it should at least have all the facts on which to base its disenchantment with the government. That wasn't the case here. Now to the issue at hand. Taking $50 out of the pockets of many welfare recipients is no way to treat people. I also don't buy the warped logic that the changes will encourage welfare recipients to look for work.
Trying to get people on welfare to look for work is a commendable goal. Nobody likes to get ripped off, and some people are ripping off the welfare system. Richmond says he knows of a 34©year©old man in Kelowna, a single parent with two children, aged four and eight, who is quite determined to stay on welfare.
"He is perfectly healthy, has several skills and hasn't worked for two years. In fact, he is not looking for work and isn't even registered with Canada Manpower," he says.
Of course, that guy should be out working instead of collecting welfare. He makes a good case for the government coming down hard on welfare recipients. The trouble is that a lot of innocent people suffer because some people are ripping off the system. Most people on welfare would rather work. Unfortunately, jobs are scarce, and taking $50 away from welfare recipients won't make them any more plentiful.
The government should not be faulted for trying to break the "welfare cycle" that sets in after receiving public assistance for a long period.
Advising people how to look for work is a good idea. So is the offer of helping them with transportation and day care costs. But pulling $50 out of their pockets won't achieve anything other than reinforce the government's reputation for being heartless. Government figures put the number of people affected by the cuts at 20,000. That means the government will save $12 million a year, but the NDP and various anti-poverty groups say they suspect that a lot more than 20,000 people are involved.
Richmond points out that the cost of the programs to help welfare recipients find their way back into the job market is $27 million, but most of the programs are not just for the people the government has robbed of $50. They would be in place anyway. All of which means the government deserved the bad publicity it got on the welfare changes, even though the media failed to tell the whole story.
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