Thursday, May 26, 2016

OK, So About That CBC Story....

Jacques Poitras of the CBC was rightly aggrieved that I had not read his full story before a critiqued his setup Tweets.  He was doing a story on the allegations that Ministers Horsman and Arsenault had made unsubstantiated allegations against members of the judiciary and, in so doing, breached judicial independence and abused their offices.  When he tweeted links to his research that day, he cited cases of ministers resigning over privacy breaches.  I noted, perhaps too sarcastically, that this would be like assessing the fairness of drunk driving by examining the fate of shoplifters.

Jacques felt that I should have waited to see the whole story before commenting.  And, it was premature.  I'm currently overseas, running a few hours ahead of New Brunswick time, and those dark skies blinded me to the possibility that there might be more to come. So I acknowledged that I hadn't thought of that, and should have, on Twitter as he cited his displeasure with my quick whistle. 

I did not delete my tweets because I still felt it was a worthy question –“why are you looking at those?—even if I shouldn't have offered it as a final critique. If my daughter came in the study and said, “I'm doing a report on mammals.  How much does an iguana weigh?”, I might well ask why she thinks that's relevant. If she tells me to settle down and wait for the report, well…fair enough. But I'm still allowed to wonder why, pending final review. 

Of course, the story came out today. http://www.cbc.ca/beta/news/canada/new-brunswick/horsman-minister-resign-1.3599867  And I still think the research into privacy breaches was irrelevant. But now I know better where I disagree with the story. 

1. The question is over-broad. Asking “When do ministers resign?” is a bit like asking, “When do people go to jail?”, or “When are players suspended?”, or “When are there consequences?”.  It’s a quick way to allow a question to get muddied by distractions and non-sequiturs, which appears to be exactly the government’s strategy here. As I noted yesterday, if someone accuses you of stealing company money, it is not really relevant to yell “well, Tommy didn't get fired for talking back to the boss!”.  Maybe not, but at some point you need to address whether or not you stole the money. 

After all, if you really want to explore reasons why ministers have resigned, the report could have added extra-marital affairs, leaving briefing documents around, letting your department sign off on tainted tuna, expensing really pricey orange juice, treasonous behaviour, visiting a strip club, wrongly telling people eggs were tainted, and in a different era, being gay. If you wanted a list of things some opposition member, some time, demanded a resignation over, we could be here all day. None of those are things these two ministers are accused of doing, so the consequences for them seems of dubious relevance.

2. Because the question is over-broad, the reporter is led into an area of false relativism.  The CBC report leaves the reader with an unsettling conclusion –that really, the reasons ministers resign are hard to isolate and people can never agree on them.  “Who can say?”, we are invited to ask, as Homer Simpson might cite our crazy world with its new-fanged technologies.

Except…ministers resigning over judicial interference is not controversial at all.

There are genuinely grey areas in the area of ministerial conduct. This is true. But because some areas are grey doesn't mean they all are. It is a grey area when a baseball player should be suspended for a hard slide. But if I covered the Alex Rodriguez steroid trial and cited the debate over Jose Bautista’s hard slide, and concluded by saying “Well, when we suspend is a grey area!”, there is an obvious problem.

Looking at the list of reasons ministers have resigned, we can see lots of grey areas. But that doesn't mean they are all grey areas. When a minister should resign over expenses is a grey area. When the principle of ministerial accountability should kick in is a grey area when it comes to leaks of information, because departments have grown so big and complex. (It is not a grey area that a minister should resign when they personally release information. When a staffer does it, that is a grey area.)

But they aren't all grey areas.  It is quite clear that treasonous behaviour is grounds for resignation.  iT is just as clear, in 2016, that being gay certainly is NOT.  To know these areas are settled, you'd have to look specifically at those areas without importing less-settled questions to the study. 

The trouble with asking over-broad questions is we can start to engage in moral nihilism, deciding that nothing is settled so everything is permitted. But some things are known, even if not everything is known.  We can debate if it's bad etiquette to text during during a wedding reception, but I do know it's bad to text during your own wedding vows. We can debate if marijuana use should be a crime, but I do know that beating people up is. It is a very grey legal area as to how far the state can go in ensuring informed consent to end your life, but it is not unsettled that the right now exists at law.  You can always find disagreement if you draw the parameters of the debate broadly enough, but that can obscure important lines. 

It seems to be a better question to ask “Given that judicial interference consistently is grounds for resignation, is there agreement that Horsman and Arsenault’s actions amount to judicial interference?”. I would be very interested in hearing lawyers and former judges on that point. That would also lead to debate over some relevant questions the piece raises, such as the fact that the Justice Minister claims judges initiated the conversations in his case, and a few it misses, like the levelling of unsubstantiated accusations against the judiciary.

To sum up, I don't say any of this because I think a journalist has bad intentions or has anything less than a solid career. I follow this journalist on Twitter and have appreciated their work many times.  Just as Jacques can question the wisdom of politicians’ decisions on his podcast without ignoring their many good deeds and qualities, I do the same here. Journalists often help us know what questions we should think about, and so their choices in phrasing even implicit questions are worth public debate. I also note that I noted and corrected my error in calling his setup tweets a “story”.  Some acknowledgement from Don Arsenault that, yes, he shouldn't have suggested that there is an improper plan to move Madame Justice Blais to Moncton without proof was kind of a bad thing would likely give this story fewer legs than the petulance currently on display. 

In this case, I do think my scepticism was justified (if premature).  Reading the piece, I was reminded of George Carlin’s famous admonition, “I hate it when people say ‘ya never know’. Cause sometimes, ya know.”

Tuesday, May 24, 2016

THE MEETING AND THE DAMAGE DONE

Bill 21, the Gallant government’s bill to limit the ability of the Court of Queen’s Bench to manage the placement of judges, is a brief piece of legislation that raises a number of questions.

Those questions are, specifically, “What the hell?”, “Why?”, and “We need this because….?”

To those exclamations of bafflement, we may now add a fourth, courtesy of two cabinet ministers Stephen Horseman and Don Arsenault.  That question is “What were they thinking?”

Let's recap recent events, which have done nothing to enhance the already-shaky reputation of the Gallant government for being able to pick its hindquarters out of a police lineup surrounded by holes in the ground. 

Near the start of the legislative session, the government introduced Bill 21.  The Bill proposed an end to the power of the Chief Justice of the Court of Queen’s Bench to move judges to new judicial districts and require them to establish residence within 50km of their domain. From now on, should the Bill pass, a judge could only be moved if the Minister of Justice and the judge themselves agree. 

The problem arose when the Chief Justice of the Court, Mr. Justice David Smith, stated that he had not been consulted on the Bill and that he considered it an affront to the principle of judicial independence. The government had consulted with the acting Chief Justice in his absence, but the Chief Justice’s reaction was clearly negative.

The curious part of this chapter is the complete and utter inability to articulate why the Bill was needed.  The Chief Justice articulated his concerns with the Bill so that, whether one agrees or not, one can know why he has arrived at his position.  For the government’s part, it appears that Bill 21 somehow made it through drafting, cabinet, committee and three readings without anyone caring about it, a kind of Immaculate Legislation.  The Justice Minister allowed that he could not think of a single example of where he would use these new powers to override the Chief Judge, and no one from the government seemed eager to provide a statement of why the Bill was needed. 

When governments are determined to have a Bill pass over serious opposition, but won't say why, people get suspicious. It is like having your teenage son ask repeatedly if you'll be out of town any weekend soon, but when asked why he cares says “Oh, no reason.”  It gets people on alert. So the Bill was already under a spotlight when the Legislature reconvened for a rare event which old people will someday fondly recall as “legislative sittings, before that young Gallant took over.”

As the Bill was being debated, the government decided that Energy Minister Don Arsenault should speak. This was a curious choice. Not only is his portfolio miles away from the matter at hand, but Don is not known as a politician with a deep appreciation for the subtleties of legislation. 

However, Don Arsenault began to address the historical tradition of judicial independence.  Asking him to do this is like hiring Tinsel, the Balloon Animal Clown, for your kid’s party and then asking him to juggle meat cleavers. He's not had much practice, and there is significant downside. 

Mr. Arsenault launched into what can only be described as a screed. He read a list of the 13 transfers of judges’ locations that have happened on Chief Justice Smith’s watch, predictably said this harmed the North to the benefit of Moncton.  He seemed particularly to focus on judges appointed by Conservative governments (which I hasten to add, is not the same as “Conservative judges”). The Minister then added a truly bizarre twist, claiming that Madame Justice Marie-Claude Blais may wish to move from Moncton, and that this would likely be arranged “between friends” as the other 13 moves had been. 

Where friends meet, some say.  OK, Don Arsenault says.

If there was any proof of any of this, it remained within the fevered mind of the Minister. A lawyer representing Chief Justice Smith soon pointed out that this seemed to be a lot of defamation without proof. He also corrected the record on a few fronts, including the fact that the Minister claimed that the Acting Chief Justice had approved of the changes when she actually had warned they might be unconstitutional. 

Two days later, in Question Period, the Justice Minister added another bizarre chapter to the saga. Asked about the Bill, he noted that the government was finally "including judges” and that a number of judges had called him with their support for the bill, out of fear of being involuntarily moved. 

Later, as questions began circulating about the propriety of speaking with judges, the Minister called at least one reporter to say that he had “been unclear” when he claimed that judges had called him, and that no judges had ever called him. Some unnamed judges  had, however, approached him at unnamed social  functions to express their delight at Bill 21.

And this is where the sage ends for now, with Ministers tying themselves in knots to pass an absolutely essential bill that will avoid an unspecified harm and be used in situations that it's sponsor cannot imagine. 

The Facts On Judicial Moves

The CBC’s Jacques Poitras helpfully reported on the 27 instances in a quarter century where judges have moved judicial districts. Breaking these down may help separate fact from spin. 

To understand this, know that there are eight judicial districts in New Brunswick, as fixed by regulation (which means cabinet could change this without legislative approval). To be a judicial district is to be assured, by legislation, that at least one judge must be assigned there and by law establish a residence within 50 kilometres of the court in that city or town. The 24 full-time judges of the Court of Queen’s Bench are right now broken down between the 8 judicial districts as follows: six judges sit in Moncton and Saint John, four sit in Fredericton, two each in Miramichi, Bathurst and Edmundston, and one each in Woodstock and Campbellton. 

When there is a vacancy due to a departing judge, the federal government may appoint a judge. The appointment will generally specify a judicial district.  

If we look at the 27 judicial moves we could think of a region “gaining” or “losing” a judge, in one sense. If you wanted to do that analysis, for instance, in the case where Mr. Justice Bruce Noble was moved from Saint John to Fredericton, you could say that Fredericton “gained” a judge and Saint John “lost” one. 

If you did that analysis, you would find that almost every judicial district had gained and lost a judge at some point. The largest net “gainers” would be Moncton (+6) and Fredericton (+4). However, contrary to the government’s expressed concern for Northern New Brunswick, the outflow is not from the Campbellton, Bathurst or Edmundston centres. The largest net “losers” are actually Woodstock (-4) and Miramichi (-3). In fact, the most common moves are Woodstock to Fredericton and Miramichi to Moncton. 

You will also notice that I put “gain” and “lose” in quotation marks. This is because almost none of these moves (I can't find one for sure, but I can't trace every move) actually alter the number of judges in a district. The Judicature Act already protects smaller districts because they must have a judge.  So if a judge moves from Campbellton to fill a vacancy in Edmundston, the result is that now the new judge will be appointed in Campbellton. 

Of the changes that have occurred since I joined the bar in 1998, of 50% appear to be “repatriation” moves, where a judge is returned to the place where they lived prior to appointment. For example, the fact that Mssrs. Justice Noble and Morrison moved to Fredericton seems to simply be a case where they were appointed by the federal government to a place where they did not live, and they moved back to Fredericton once a vacancy appeared there. Far from any great conspiracy, it seems to be usually quite simple. When vacancies arise, there may be judges that are high on the list of the federal government. To get them into the judiciary, they will often be appointed wherever there is a vacancy, serve in that new center, and then ask to go back to their original home when there is a vacancy. 

This is not a bad thing. For one, it allows new judges to start in smaller centres and then go to the larger districts as they gain experience. Most (though assuredly not all) complex litigation will be filed there, if only because that's where larger businesses and governments exist. As well, lawyers are even more concentrated than the general public in larger centres. That's not to say that good lawyers come from big cities, only that many good small town lawyers still prefer to go where the potential clients are. And the lawyers who like to do the work that often (though not always) predicts an interest in becoming a judge often wind up in government, at universities, or at big firms that allow complete specialization are even more disproportionately in the big cities. 

Again, that's not to say there aren't excellent lawyers and potential judges in small centres. There are. They are just disproportionately clustered in big centres, and if all lawyers are equally good, the place with five times as many lawyers will have five times as many lawyers who would want to become judges. 

So, to conclude, changes never really result in a region losing a judge. They may see a more experienced judge go to a bigger centre to either return home or expand their professional challenge, and a new judge gets appointed to fill the old vacancy. It's hard to see the public harm in that. 

Judicial Independence

You may reasonably ask why everyone is so big on judicial independence. Put simply, it is a hallmark of a functioning democracy. To keep disputes from being settled by force, systems need a way of settling them that is credible, so that even when we lose we accept the process. People who come before judges need to believe that they will have their cases heard on the merits. Part of that is how the judge comports themselves – judges avoid comments or interference in politics so that we do not perceive that they may be judging based upon ideological or partisan interests. As an example, look at the recent school closure cases. The judges took great pains to explain that their decision had nothing to do with whether the government made the right policy choice, only if the rules were followed. That is how it works.

The other part of this is that politicians need to do their job and stay the hell out of situations where they can be perceived as influencing judges.

When I was Justice Minister and Attorney-General, I often got calls from people asking me to step in, to see that charges were brought against someone, or that a custody hearing went their way, or some bad decision be set right. It didn't always make me popular, but my job was to make it clear that I could not do this. While it may be tempting to think of an all-powerful minister who sets things right, this can destroy the system long-term.  If you get charged with a crime or lose custody of your child because the complainant lives in the A-G’s riding or threatened to go to the media, that will destroy faith in the system. So I would explain their rights, offer any advice I could on getting legal help, and even tell them how to complain to the Judicial Council of they felt a judge was unfair. 

In other words, ministers have to take care not to give the appearance of trying to influence judges. This includes using their ability to get media – you cannot give the appearance that you will open a judge up to public attack or ridicule if their actions displease you. 

The Dangers With Don’s Words

While Minister Horseman has made the more easily-understood breach, Minister Arsenault’s intentional trashing of the Chief Justice raises more serious issues.

For starters, the Minister abused his parliamentary immunity in the extreme.  I see nothing in his statements that looks like even an attempt to offer proof for what are serious allegations that the Chief Judge has improperly managed the judicial system based upon improper considerations, “among friends”.  He has made allegations that are demonstrably untrue on the facts regarding judicial transfers. And he has impugned Madame Justice Blais by suggesting based on no proof at all that she is angling for a move and conspiring with the Chief Justice, which could undermine faith in her ability to adjudicate disputes in Saint John. 

If the Minister has proof of this, he has the duty to raise the matter with the Judicial Council, a neutral body that can hear complaints where actual proof and argument can be made. If he is too cowardly to take his words there to be evaluated, he must withdraw them fully.

If he will not do this, it is a tacit admission that he has tried to intimidate the Court.  He sent a message that if a judge displeases him, he will use his legislative immunity and public profile to launch attacks on that judge. For judges who may hear cases involving the government, knowing a minister may do this with impunity could be perceived as having a chilling effect on the courts. I don't expect Don Arsenault to learn this at this point in a political career that has largely been built upon not knowing things that might make him a less-willing attack dog. But Brian Gallant and Serge Rousselle have professional duties to change his actions, if not his mind. He has embarrassed them, or at least they should be embarrassed. 

If there are politicians named Donald who don't make up accusations, please come forward.

Minister Arsenault has also failed in his fiduciary duty to the government he is part of, because he may have singlehandedly given courts a reason to overturn his government’s law.  Minister Horseman may not be able to articulate a motivation for Bill 21, but Minister Arsenault did.  However, the one he articulated is not a proper one. By raising Madame Justice Blais’s name, he suggested that the point of the Bill for him is to make sure that a former political foe cannot move if she wants to. He didn't articulate why the would be a public interest in this, either, it seems simply to be based on personal and political animosity. This is, of course, a completely improper reason for a bill, and legislative immunity does not mean that it cannot be introduced as evidence in a court challenge. 

If the Premier is too weak to fire this Minister, both for undermining the justice system and blowing up his own government’s legislative agenda, then he is not really in charge of government. 

The Curious Case of Minister Horseman

Everyone gets the obvious problem with Minister Horseman’s comments. It was false. You don't need me to explain that saying you got more than one supportive call from judges is a lie if you actually got zero calls from judges. You also can apply your own test to his later claim that he was simply “unclear”.  To be unclear means that your words can bear more than one interpretation.  I do not know of another meaning for what the Minister said. 



In the Parliamentary tradition, members are given immunity from being sued for libel, but this isn't a free pass. The price is that they have a high duty to not deliberately mislead the House. The reason rules don't allow a member to accuse another of lying in debate is because it is a serious breach of a member’s responsibilities, and can must be raised and reviewed by a Committee on Privileges for discipline. (The reason you can't just say it in debate is the same reason Arsenault can't just accuse the Chief Judge of misconduct in debate – in both cases, if you're not ready to raise a formal complaint and prove it, don't throw the accusation around).

It would be hard for Speaker Collins to rule against an Opposition privilege motion that the Minister misled the House. 

But we all know a lie.  What may be less obvious is the breach of duty that Minister Horseman committed as Justice Minister. 

In the parliamentary system, Chief Justices speak for the Court on administrative matters and he and the Minister may rightly discuss those matters. Ministers should not be engaging in discussions with judges otherwise. To discuss the Bill with judges other than the Chief is to engage in interference with the operation of the Court. To speak of its merits could be seen as improperly engaging judges on a matter that might be the subject of litigation.  The U.K. a ministerial guide makes this clear.





A number of Canadian ministers, and others in the Commonwealth, have resigned due to phone calls with judges on improper matters. Jean Charest, David Collennette, John Duncan, John Munro, Irish Minister Bobby Malloy – all resigned to be honourable after making a mistake and calling judges.

If the Minister thinks that changing the talk from a call to a conversation changes that, he is wrong. After all, it isn't the phone that mattered in those cases, it is the improper conversation. If someone was discussing a bribe, for instance, it doesn't matter if it is by phone, in person, over Skype or by passed notes.  It is the substance that is wrong. The same is true here. The Minister should have ended those conversations, not cited them. 

Further, it is hard to believe a judge would start that conversation, because legally-trained people know better. The Minister has not only accused judges of starting potentially-improper conversations, by refusing to provide details he has impugned all 24 judges. 

The Minister needs to provide details of these alleged encounters promptly. And if he indulged those calls, he should step down at least briefly. If he lied about them, he should step down for quite some time. 

A Question of Honour

These rules can sometimes seem harsh, when a generally well-meaning person like Stephen Horseman is involved. But ministerial resignations for serious breaches are a tradition because they recognize that a minister’s ambition cannot be more important than the integrity of the system.  Duties to protect private information, respect judicial independence, keep budget details secret to protect investors – when these are breached a minister steps down even if they didn't mean any harm.  As Bernard LeBlanc said when he resigned after a staffer used his personal account to send private information, it is a question of honour to show respect for the system.

It is tempting, in a partisan atmosphere, to try to dodge consequences. But governments are not supposed to care only about the game, but about the integrity of democracy. They are guardians of something bigger than themselves. 

The Premier has watched his members applaud colleagues for what are attacks on the judicial system. It is not clear he understands or opposes this, because he has dodged the issue thus far. Yet if he does not act, or if he tries to shuffle the two men to new cabinet jobs without consequence, he will be telling us volumes about his character. Even in the heat of politics, democracy depends upon respect for certain lines that should not be crossed.

History has a way of outlasting ephemeral power, and this premier is young enough that he will live to read early drafts of history’s judgement of his charge. If he stays silent, this episode will someday be a prominent exhibit in the story of a premier too callow and too weak to defend the rule of law he took an oath to uphold. His name will likely be a cautionary tale of one leader who forgot the warnings of Alexander Pope for those who try to ignore ethical lines.

Fools! who from hence into the notion fall 
That vice or virtue there is none at all.
Is there no black or white? Ask your own heart, and nothing is so plain
’Tis to mistake them, costs the time and pain.

The Curious Need To Make Ruth Ellen A Victim

I've long since lost any illusions about our ability to view every political issue through a partisan lens. Partisans will praise their side for principled and worthy stands when in Opposition, and then view the exact same behaviour as pointless obstructionism once their side is in government. It happens. I'm pretty sure it happens to me too, though I try to be aware of this. 

The minor fracas in Parliament seemed to have reached a conclusion that all but the shrillest partisans could live with. The Prime Minister accepted the collective wisdom of parliamentary experts and journalists that, in a moment of frustration, he had crossed a line that should not be crossed. In losing patience with the Opposition and pushing through a crowd of chatty MPs to drag the Tory Whip to his seat, he had behaved in a way that prime ministers historically have not. 

Mark Twain once remarked that intelligence is the ability to entertain two conflicting thoughts at the same time. Intelligent people could conclude that the Prime Minister was right to apologize and to show good faith by retracting rule changes that would limit debate. Those same people could also believe that, once that apology was issued, that the Opposition parties would have been well-served to show their sincere interest in the right to debate and examine bills by actually debating and examining bills and moving on from the whole kerfuffle.

One person who seemed truly innocent in all this was the MP for Berthier-Maskinong√©, Ruth Ellen Brosseau. She was the MP who the Prime Minister, as he reached through the crowd, elbowed in the chest. She said it hurt quite a bit, and between the pain and the gravity and chaos of the moment, she needed a few minutes and missed a vote. He, in turn, said he was sorry and especially regretted not watching out for her. 

That would be a fine place to leave it. But then idiots got involved. 

Some Liberals tried to go back and justify what Mr. Trudeau agreed was not justifiable, elevating the little coffee clutch of chatty MPs in the aisle as some kind of blockade or obstruction that threatened democracy itself. As veteran Maclean’s columnist Paul Wells noted, if you don't think MPs chat in the aisles in a break, you clearly have never been in Parliament. (Or, I can assure you, in the New Brunswick Legislature). Or you can believe eminent parliamentary historian Michael Bliss, who confirmed that chatting in an aisle in a break, or even slow voting, is very ordinary and physical dragging MPs through them is not. Or believe Gord Brown, the Tory MP who has confirmed that he wasn’t at risk of missing a vote or in need of prime ministerial rescuing. Bottom line – if that was a blockade, I get blockaded at the farmer’s market samosa booth every weekend. 

And some NDP and Conservative MPs seemed way too glad to finally have an opening to slam Mr. Trudeau, who has had one hell of a political honeymoon.  The Conservative motion speaking about “molestation” of Ms. Brosseau was clearly over-egging the pudding. More justifiably upsetting to many Canadians was the tendency of some MPs to slip into the language of condemning violence against women, speaking of “safe spaces” and likening Ms. Brosseau’s plight to the struggle of women facing violence to be heard. One NDP MP suggested getting “victim impact statements”, which understandably caused a collective “oh, for Pete’s sake” among level-headed observers. And word of Tom Mulcair raising Ms. Brosseau’s gender in yelling at Mr.Trudeau seemed a bridge too far – while the Prime Minister had copped to a carelessness that could have led to hitting someone, his carelessness had no basis in gender or even intent. 

One point must be made here.  Exactly NONE of those statements came out of the mouth of Mr. Brown or Ms. Brosseau. Mr. Brown said simply that he needed no help and hadn't appreciated the Prime Minister pulling him where he was quite capable of getting on his own. Ms. Brosseau said that she got elbowed in the chest and it hurt, and the whole thing overwhelmed her long enough that she missed one vote. 

So, intelligent people can likely entertain certain conflicting thoughts here. They can think the Prime Minister acted like a bit of a jerk and did well to apologize, yet does not deserve any attribution of intent or sexism in his careless elbowing of Ms. Brosseau. And we can also think of cases where we can think of someone meaning us no harm and having no ill intent, but managing to hurt us anyway. (Fellow actors who do dance numbers with me have been elbowed and will be elbowed again). 

There are certain things that intelligent, decent people do not think to do. They would not be motivated to start reviewing the tape like the Zapruder film in an obsessive effort to reach a diagnosis as to whether Ms. Brosseau actually felt pain or not. They would not begin speculating that she likely tried to provoke Mr. Trudeau to elbow her in the chest. They CERTAINLY would not swarm Ms. Brosseau’s Facebook and Twitter feeds to call her things like “a waste of skin”, “hysterical bitch”, “lying twat” and “drama queen”, urging her to resign for the crime of having suggested that catching a stray elbow from the Prime Minister might have been less than an honour. 

There are a number of reasons this is silly.

First, let's all have some humility about watching a silent video filmed at a distance. I don't know how much that contact hurt. Neither do you. Neither does any prize dipstick on Twitter claiming to have conducted an analysis of facial expression and nerve endings by video. If a doctor tried to reach a conclusion on pain threshold based on that silent video alone, that doctor wouldn't even get to take the witness stand in court. 

I do know that this is a young single mother who supported her child by working in a campus bar.  I've been in campus bars, and even that campus bar. Getting jostled isn't new to her, and if she was prone to make it up, we would know it. It all appears to be a quick and spontaneous set of events to me. If you can grant that the Prime Minister acted without calculation or intent in causing the contact, you really have no good reason not to extend the same presumption to the recipient.

Second, it is ugly in the extreme when people on social media start saying she shouldn't have been in the aisle, or ask why she didn't move away.  She was also blocked in by MPs and desks around her (because they were all hating). And even if she was slowing down a vote to show her disagreement (as Mr. Trudeau did to Mr. Harper in the day), that isn't asking for an elbow. 

Third, some people seem to have lost all self-awareness in their need to attack her. Ms. Brosseau’s last two Facebook posts were regarding a festival in her riding and some issue advocacy with MP Guy Caron. Neither mentioned the elbow. And at last look, 644 people had left posts asking why she was milking the incident.  I find it hard to believe that many people are dumb enough, or wilfully blind enough, not so see that if a woman posts on an unrelated topic and you respond by screaming that she needs to move on from getting hit -- you're the one who can't move on. 

But what is bothering me most, as a citizen and a guy about to turn a daughter loose on this world, is how unequal and unnecessary all this vitriol and plain old meanness has become. If other MP’s, even of the same party, have said dumb things that are unfair to the Prime Minister, the normal course of reply is to contact and refute the MPs who actually said those things. All Ruth-Ellen Brosseau did was say that an elbow to the chest hurts, and an elbow from the Prime Minister that gets everyone yelling is especially rattling. 

In fact, Mr. Brown has received NONE of the same vitriol or attacks, despite the fact that his party brought the molestation motion and he also said he didn't appreciate the Prime Minister pulling him.  Ditto Peter Van Loan, the middle aged man who moved a motion describing what the Prime Minister did as physical “molestation”.  Even when John Oliver mentioned this weird word choice, no trolls set upon him the way they did on Ms. Brosseau.  Even Speaker Geoff Regan described it as “manhandling” MPs.  No man has faced the online hate or the depth of name calling that Ms. Brosseau has, which raises an ugly question about why some people seem so angry at a woman saying she got hurt and it shouldn't have happened. 

This is especially true because it is completely and utterly unnecessary to attack her to defend Mr.Trudeau from the more ridiculous attacks. He's already apologized for being careless,  and asked us to believe he is sincere, so it does him no good to argue that he has nothing to be sincere about. As for the over-the-top suggestions about violence against women, the argument that completely exonerates him is that the contact was accidental and gender blind. Given that this is true even if Ms. Brosseau is honest in saying she felt pain, what is the pathological obsession with making her a liar?  Can we not like the Prime Minister and support him without flying into a rage at the suggestion that his elbows are pointy and can hurts a collision?

This is no partisan screed, because no elected Liberal has attacked Ms. Brosseau in this over-the-top way. Some, like Minister Catherine McKenna, have even called the haters out, and good for her. But what is happening makes me sadder. A lot of our fellow citizens seem so genuinely resentful of a woman saying she got hurt and didn't like it that they will repeatedly watch a video and lie about what they can glean from it.  They will attack that woman with nasty names and threaten to take her job from her.  They will attack her for the comments and actions of others, but leave those people alone. And they are quite willing to send her a message that, once a woman complains about being hurt, that incident will brand her and define her even when she tries to move on to other topics that engage her in her job or as a citizen. In short, there is something that seems to drive some of us to attack and destroy a woman who complains about a man’s conduct, even if she doesn't really complain very much. We have an unhealthy and pathological need for Ruth-Ellen Brosseau to be a liar, even if that doesn't change what Mr, Trudeau did, and even if it inspires us to name-calling and attacking. 

What Justin Trudeau accidentally did to Ruth-Ellen Brosseau was an accident and bears no relevance to violence against women. What some of our fellow citizens are doing to Ruth Ellen Brosseau afterwards is ugly, intentional and tells us a hell of a lot about why women who are victims of real domestic violence don't come forward. 

For the love of God, people, stop.

Thursday, May 19, 2016

POLITICAL ETHICS AS RORSCHACH TEST

My take on the Trudeau thing...because I've been involved in parties on "the left",  I have more FB friends who favour "progressive" politicians. And I'm seeing a number of them try to defend or minimize what happened (which, taking what is uncontested from the news, is that he was frustrated with the opposition being slow to vote, pushed through a group of MPs to pull the Conservative Whip through a crowd until that MP told him to get his hands off him, and in doing so accidentally elbowed Ruth Ellen Brosseau, who left the Chamber as a result). 

So, I'm gonna ask....how did you react to the video below when it happened?  


went back and checked...there was NO accusation that this collision was anything but accidental contact on Ford's part, but it was a politician becoming careless by acting to a heated political situation in a break.  If anything, Trudeau's breach is a bit more egregious, because he admits he went there to make physical contact with at least the Tory Whip.

One of the things that worries me in politics these days is that we are losing firm lines of behaviour of what we should never do. And part of the problem is we let our own side away with stuff that used to be beyond the line. I see friends who decried Harper the autocrat giving Gallant a pass on shutting down Legislative debate and ducking media.  Friends who call Kathleen Wynn a liar will excuse absolutely bizarre conspiracy peddling by Donald Trump.  And don't get me started on the "everybody does it" stuff -- it's often a lazy way of saying that, because every politician makes mistakes, we can stop decrying truly undemocratic behaviour. 

You want to say this isn't the only basis on which to judge Trudeau? Fine...I actually agree. That his apology closes the issue? Fair enough. But don't spin it or excuse it, please. Opposition MPs slowing down an inevitable closure vote in protest has generally been in the bounds of discourse (open to criticism, sure, but not beyond the pale). Losing your temper and putting hands on people is not. That line matters. And if you're giving one guy a pass because he's on your team....you're part of the problem.

UPDATE: After the Prime Minister offered a true apology (not an "if I offended anyone" apology) that rose above the spin his more hyper partisan supporters are trying to sell, I offered the following (unsolicited and likely unwelcome) advice to the opposition:

In keeping with my earlier post about holding the party you support to the same standards of behaviour as the others....

Now that the PM has apologized in a clear, unreserved and decent fashion AND withdrawn the motion to limit debate in the Commons, the Opposition would do well to show that it will use its right to debate constructively. This would involve withdrawing the motion to keep debating Trudeau's mistake, debating the assisted suicide bill with substance and seriousness, and avoiding any description of the fracas with a tone and language that sounds like you actually witnessed a colleague being devoured in a zombie apocalypse.

Avoiding these steps for another 24 hrs may cause Canadians to revise who has the moral high ground here.

Wednesday, April 20, 2016

NEW BRUNSWICK, I'VE SOLVED YOUR PROBLEMS

Today, I am pleased to announce a disruptive innovation designed to enhance our client service experience, refocus our holistic approach upon mission-critical priorities, and resist the outdated modalities founded upon silo thinking.

The attitudinal shift inherent in our priority groups (founded upon a creative, collaborative, non-hierarchical, and  vertically-integrated community of thought leaders) flows in an ethics-centred, paradigm-shifting, results-oriented manner from our strategic review of promising practices, social licences, and deep-dive stakeholder engagements. 

We are not just reinventing, rebranding, repositioning, revisioning and returning to cornerstone values. We are outside the box, on the runway, and poised on the bleeding edge of organizational culture shifts. We have put our institutional blinders through a gender lens through a singular focus on crowdsourcing.  Our deliverables are now shareable, and we are delivering takeaways across multiple platforms.  We are inputting our outsourcing, overstating our understandings, at the on ramp of offshoring, and bringing cold fusion to hot markets (with the warmth so central to our competitive brand advantage).

By consciously uncoupling from singular exceptionalism, our new passionate, nimble, buzzword-compliant, future-oriented priority units will leverage our capacity to see beyond the low-hanging fruit, and challenge ourselves to benchmark new opportunities in emerging markets where aspirational startups can break barriers and conquer new frontiers. 

Of course this will only happen if New Brunswickers are, like us, fully engaged in this singular moment to seize the initiative and win the future. We can provide transformational leadership, but only if citizens are prepared to push the envelope and join us in a new normal of differentiated instruction, multiple intelligences, higher-order thinking, embedded synergies and digital literacy, but as we unpack our mission, we believe that you are. 

By focusing on our shared, universal desires for wellness, innovation, security, sustainability, opportunity and excellence, we can create a win-win future with our holistic new approach. 

Also, we bought a shipyard. Think of it as an exit strategy with upside. 


Tuesday, April 19, 2016

FOLLOW-UP FROM THE TUITION DEBATE

Two folks who read the previous blog post, Matthew Hayes and Nathan Hanscom, took issue with the limits in one of the assumptions I made around the 3000 or so students who already got the maximum bursary and thus, had free tuition already. 

My working assumption was (and is) that people who get a small federal bursary, then borrow $11,000, and then still have enough need for the $4,000 bursary very likely do so because they need the money that year to afford to pay bills and go to school.  While they may appreciate the non-repay ability down the road, the driving factor is that they need the cash. Therefore, the fact that the new bursary comes before the loan won't matter to them, because it's the same total award. 

Nathan and Matthew make the point that now students at least have the option of taking the bursary money and then not even asking for a loan. You don't have to borrow money to fill out a form and get your tuition bursary. Matt further makes the point that this may keep students from working two jobs and cutting corners on learning.  We share the experience of teaching at STU and we both agree that would be a good thing.

I admit that I am unconvinced. In my time (admittedly ten years ago) as an administrator at STU who handled student emergency assistance and financial advising, my experience was that most students who work and borrow do so because of financial need at the time. There were a few who worked only to reduce their reliance on student loans, but most students borrowed and worked because even after paying tuition they had to pay rent, food, transportation and yes, some of the small joys of socializing and going to movies. The debt that accumulated was worrying to them and reducing it would make them happy, but the behaviour was driven by short-term need. 

Changes to family contribution rules would allow more access to the bursaries that are still on the back end and help these students. I'm just unconvinced until I see it that the student who needed to max out their loan won't still need to do to pay eight months of living expenses. 

But time will tell, and Matthew and Nathan brought a scenario to my attention that is worth more consideration than I originally gave it. I hope lots of students who can afford to take the bursary and no more do so. And I love the feedback and hearing angles I may have missed...that is the fun part of writing these analyses so keep it up.

Monday, April 18, 2016

TABBED FOR FREE TUITION : CUTTING THROUGH THE NOISE

So, after a few hours of shared celebration, the government’s new tuition proposal has become controversial. You know the basics by now.  The government announced it would be providing free tuition for those whose family income is $60,000 or less. Then, as news came out more slowly of other programs cut to pay for it, a debate arose over whether or not it was worth it.

There's nothing I enjoy than a good policy argument. And, like Sheldon Cooper says, I'd like to do the math. So I reviewed the government’s plan and found the real numbers – and a few surprises.  To help the debate over the good and the bad, let me share some numbers with you.

All the education, just one calorie of debt? Let's do the math on the TAB.

One important thing to note is that this is a little more complicated than the government simply paying tuition for everyone whose income is under $60,000. The tell is this – the government estimated that 7,200 New Brunswick students would get the Tuition Access Bursary, or “TAB”.. Since the median tuition fee is just under $6,000, that would be a $42Million program. Yet the government costing is $25million for the program.  So, what explains the difference?

There are two wrinkles here.

1. To provide “free” tuition, the government will first claw back the federal bursary for low and middle income students.  Because they fund only the difference, it is not quite a full tuition bursary. 
2. Hundreds of low income New Brunswickers already had “free tuition” by the definition of the program, and so there is no new money spent on them.

Free Tuition – A Little Surprise

Just so we are clear, we already had free tuition for low-income New Brunswickers.  Many other provinces do to, if we use the definition in this program. 

Of course, tuition is not free in New Brunswick for anyone. Students pay their tuition fees as always. What the government defines as free tuition is that students now receive a non-repayable grant (or bursary, if you like) which is worth what they have to pay in tuition.

Calling this free tuition is not a problem, in my book.  It isn't free tuition the way Bernie Sanders means it, where PSE is like the K-12 system, where we all enrol without user fees and pay for it through taxes. But if Brian Gallant told me to go buy a car and he'd send me a cheque for the cost, and I didn't have to pay him back, I'd let him claim he gave me a free car. 

However, if what we mean by free tuition is government grants equal or greater to tuition, we had that. 

Here's why. 

Each year many students qualify for maximum student aid. The government operates student aid this way. They figure out how much money you need to pay tuition and live during the school year they figure out how much money you should have between your earnings and the money you should get from family. Then they give you the difference. They first give you loans -- $350 per week of study, or $12,600 for a 36 week programme. If after you've borrowed the maximum, you still have need, there's a New Brunswick Bursary of $130 per week, or another $4,680 that you don't have to pay back. 

There's also a federal bursary if you are low or middle income by their standards (which is based on the size of your family, but generally the cutoff is between $40,000 and $85,000 of pretax income. If you are in that group, there will be between $1,000 and $2,500 of bursary from the federal government as well. 

That's how it worked before the New Brunswick government made their announcement. Did you catch why we already have free tuition?

As you can see, if you maxed out your student aid because you had high need and little money, you already get $6,700 of bursaries.  Unless you go to Mount Allison, tuition fees at colleges and universities are less than that. So low-income students already had bursaries equal to their tuition fees. That's what we are now calling free tuition, so we need to note that it existed already.

The number of students who already had free tuition is not inconsiderable. Studies show 18% of New Brunswick’s roughly 13,800 student aid recipients maxed out their bursary and still had some unmet need, so that means 2,760 students. Of the remainder, a number of others still got bursaries, and if this larger group averages $687 of bursary, that likely means the lowest-income among them got most or all of their bursary. Therefore, in a typical year, about 3,000 New Brunswickers were already getting free tuition. 

That is important, because of the cuts to other programs are meant to target resources to the lowest-income New Brunswickers, there is a logical contradiction here. The lowest income borrowers share equally in the cuts, and so if they didn't gain anything the only change is a negative one. 

For the highest-need (and presumably lowest income) students, they gained nothing with government’s announcement.  After all, the fact that the Tuition Access Bursary (as they are calling it) is targeted at low-income New Brunswickers means little, because the people receiving full bursaries were by definition low income. For them, their bursary got a new name. They may even lose a bit, because the tax credits that got cut to pay for it were universal, and at the very low end, it's unclear if the Tuition Access Bursary has replaced their slightly-more-lucrative New Brunswick Bursaries. As well (and this is important), the New Brunswick government is not giving them a bursary for the amount of tuition, but for the difference between the federal bursaries and tuition.  So, the New Brunswick government does claw back your federal bursary in order to pay for your “free” tuition. 

(This group will include a few more “partial” winners, because a slightly smaller cohort would have received some bursary award to meet their need, but less than the full amount.  Because the new Tuition Access Bursary appears to be all-or-nothing, in that it covers you to your tuition fee if you're covered, they will get a smaller boost. Judging by the costing, this doesn't greatly alter the framework of this analysis, but I should note their presence).

In fact, we've had even more far-reaching free tuition programs before. The Millenium Bursaries and Timely Completion Grants of the Graham government, given tuition fees at the time, were also free tuition grants by the Gallant government’s definition. And yes, Tories can argue that the cancelled Tuition Tax Credits were free tuition programming as well.  If you maxed out your bursary while in school and claimed all your tax credits after, you would have had more money from government than you paid in tuition. They don't keep numbers on how often those two things overlap, so we can't tell how many people got free tuition, but some likely exist. 

By the new definition, meet the first premier to deliver free tuition. Surprised me too.

So, to summarize, for 3,000 low-income New Brunswickers, this is a new name on the same help—and tuition was already free. 

So, What Changed?

That isn't to say that nothing happened last week.  Some students will definitely benefit from what government did. The government estimates that 7,200 students will benefit from the new Tuition Access Bursary. That's likely true, and here's who they are. 

There were a number of students who have family incomes below $60,000 but did not get a bursary. For them, after summer jobs and family contributions, their financial needs could be met by that $350/week of loans they could borrow, and under the old rules, you don't get a New Brunswick bursary until you max out your loans. 

The new Tuition Access Bursary goes on the front end, and since this group wasn't qualifying for maximum aid before, we can assume many will be getting the smaller middle-class federal bursary.  They still have to contribute their modest federal bursary, but if their family income is under $60,000 , they probably get about $5,000  in bursary that used to be a loan, and that will make you happy. (If you go to Mount A, that's over $6,000 in bursary. If you're the person who eats only crab legs and prime rib on the buffet because you want to make the house pay, consider Sackville).

One reason I suspect this is the cohort the government has in mind is that if the program helps 7200 students, there were 3,000 who already got the same help, so there's no new money there. Giving 4,200  students bursary help of roughly $5,000  gets you to a number pretty close to the $20-25million government says they'll spend. 

So, there are your winners in last weeks announcement. If you want numbers, roughly 4,200 of New Brunswick’s 29,000 students have a new bursary of between $4,500 and $5,500. That's about 16% of students. 

But this premier brought in free tuition too.  They have that in common. 


Who Loses?

It has to be said that the net result of moving all this money around is that government is spending less to support students than was the case under the Alward government. In their first budget, the cancellation of the Tuition Tax Credit cut $22 million from student debt reduction. And the cancellation of the Education and Tuition Tax Credits takes another $11 million away. Government has alternately said each program was cut to fund more targeted assistance. Assuming this is it, they didn't return all the money. 

To quantify, each student (including low income students) lost about $560 with the loss of the federal Tuition and Education Non-Refundable Tax Credits. The slightly less-valuable provincial version is likely about a $400 hit to each student. That's 30,000 small losses.

The Tuition Tax Credit was worth up to $2,000 per year, but only students who stayed in New Brunswick benefitted. How many was that?  The Canada Student Loan annual report generally shows about 11,000 students still in student loan repayment in New Brunswick. Extrapolating that time period to tax credit eligibility (about half of the student loan repayers would be in that window, and about half of graduates have loans to repay) would land you pretty close to government’s estimated cost of $22million to offer the credit, or 11,000 people losing out on $2,000.

So, let's sum up who is up and who is down. 

About 11% of students, the very lowest income, get the same bursary they had before but lose a tax credit. They may or may not have also lost the value of their federal bursary, depending on the answer to this question -- has the New Brunswick Bursary been rolled into the TAB, or does it still exist after student has been awarded the TAB and a full student loan?

Another 16% of students lose a small tax credit and gain a bursary 10 times larger, which is a definite win, and a significant number of students. 

The other 73% of students lose a $400 tax credit and get no new help.

Of the 84% of students who don't get new help from this announcement, about 60% of them will lose a tax credit after graduation worth $2,000 per year. 

Is It Worth It?

Cynics will say that the government has rebranded an existing bursary as “free tuition” and added a few new recipients to help the bigger cuts slide by.  And, I'm sure, this public relations advantage was discussed. 

However, the new program isn't just a triumph of political branding. Studies have shown lower income students tend to be more affected by risk and uncertainty when deciding whether or not to go to school. The old programmes were less certain and, as the New Brunswick Student Alliance correctly notes, often only offered rewards in a longer window than when students are actually deciding to attend school. Making a simple pitch –if you're income is this, you get this help—has a positive public policy component to it that can't be dismissed just because it is somewhat helpful to the political messaging too. 


STU's scholarship guarantee is now widely imitated. Because certainty matters in PSE.

On the flip side, the sum total is to favour new students over recent graduates. The Tuition Tax Credit was a retention tool to help keep young families in New Brunswick even if our wages are lower. High debt loads push people out of the province.  If the graduates of 2020 leave on large numbers, we may have punished young workers who chose to stay in order to train a new crop of grads who will work elsewhere. The best-case scenario is that students who study here to get the new bursary have roots here that help -- it is too soon to tell. 

The government also needs to provide more concrete answers about its new Education and New Economy Fund, which is the fund that provides funding for the new TAB. This is unusual, because instead of building the money into the budget of the Department that administers student aid, the funding is coming from this new Fund which only has three years of funding commitments. Because the cuts to other programs were permanent, this is a curious decision which is hard to evaluate because basic questions of the ENE Fund governance are still unanswered. At the very least, students embarking on a four year degree should be told if the funding is only guaranteed for three.

The loss of the tax credit does impact mid-career and part-time students who try to upgrade their skills. Whether the financial impact is enough to matter, or whether it is mitigated by new programmes, is still unknown. 

In the end, government asked 41,000 New Brunswickers to take a cut of between $400 and $2,400, so that 4,200 New Brunswickers can get a new $5,000 bursary. Where they used to get a $5,000 loan.  The debate will now go on over whether that trade off is fair, and if it will improve access. 

But I will bet if they phrased it that way, it wouldn't have gotten as much traction as suggesting it is a new “free tuition” program. Now, with the right numbers behind the labels, let the debate proceed. 

Author's Edit: My friend Alex Usher of Higher Education Associates, weighed in yesterday with a number of points of agreement but one challenge to my use of "lowest income" to describe those who were already maxing out their bursaries and thus, already getting "free tuition". He notes that while being very low income is one way to have far fewer resources than needs and thus get a maximum award, these students are (in his considerable research) more likely to live at home and thus have lower assessed need. He suggests that these students may be "independent students"...those who meet the definition of having been out of high school for four years and thus free from parental contribution requirements. 

Now, this speaks to the identity of that group and not the fact that "free tuition" was a reality for them. And it then raises the question of whether a 22 year old with a low income but from a better off family should be called "low income" (since they still may have more in common with groups who traditionally have high participation rates). It doesn't change the points here of the size of groups who benefit or don't. But it is an important dimension to debating the policy outcome, and with thanks to Alex I note it here.