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	<title>Brent Rathgeber</title>
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	<link>http://brentrathgeber.ca</link>
	<description>Member of Parliament for Edmonton -St. Albert</description>
	<lastBuildDate>Tue, 15 May 2012 16:12:14 +0000</lastBuildDate>
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		<title>The Politics of Division</title>
		<link>http://brentrathgeber.ca/the-politics-of-division/</link>
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		<pubDate>Tue, 15 May 2012 16:12:14 +0000</pubDate>
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		<description><![CDATA[I am frequently disturbed by what I hear on CBC.  But the disturbing comments made on “The House” on Saturday, May 5, 2012, were not uttered by host, Evan Soloman; they were spoken by newly minted Leader of the Her &#8230; <a href="http://brentrathgeber.ca/the-politics-of-division/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>I am frequently disturbed by what I hear on CBC.  But the disturbing comments made on “The House” on Saturday, May 5, 2012, were not uttered by host, Evan Soloman; they were spoken by newly minted Leader of the Her Majesty’s Loyal Opposition, Thomas ( I mean Tom) Mulcair.</p>
<p>Mr. Mulcair apparently believes that the malaise in the Central Canadian Manufacturing Economy is singularly caused by the booming energy economies of Western Canada.  He goes so far as to refer to this as “Dutch Disease” and believes that increased demand for the resources of Alberta and Saskatchewan has led to an artificially high value for our loonie, which negatively affects the value-added manufacturing industries of Central Canada.</p>
<p>Not only is this economically dubious, it is politically reckless.  Without a doubt, the strength of the western economy contributes to the strength of the Canadian dollar.  However, the value of our dollar is measured against the American Greenback and the comparative weakness of the American Economy is a larger contributing factor affecting the value of our currency.  Furthermore, the manufacturing States that border Central Canada have seen similar economic decline and loss of manufacturing jobs even though they cannot blame such decline on energy wealth elsewhere.</p>
<p>Worse, Mulcair’s characterization is unbecoming of a National Political Leader.  When he opines that the strength of one region’s resource sector is a disease adversely affecting another, he is deliberately pitting region against region.  Ironically, it was the strength of the Western Canadian Resource Economy that largely insulated Canada from most of the world-wide recession of 2008.</p>
<p>I could mention that the equalization payments that allow Mulcair’s home province of Quebec to offer the lowest tuition fees and child care rates in the country are fueled almost entirely from energy producing provinces.  But that would be pitting region against region; something I have cautioned Mr.  Mulcair not to do.</p>
<p>I am dumbfounded that a man who wants to be Prime Minister would re-raise the hyperbolic and divisive philosophy behind the most divisive economic and energy policy of my lifetime: the National Energy Program.  The NEP unavoidably, if not intentionally, pitted the West against the rest of Canada and tested the fabric of national unity.  Western separatism, fueled by economic survival and perceived assault, was in many ways a bigger threat to our country than Quebec Nationalism, based on language and culture.</p>
<p>No serious leader wants to relive the divisive debates of the 1980’s, all based on flawed economics.  The strength of the western resource economy benefits not only the west but all of Canada.  Mr. Mulcair’s attempt to solidify a political base in Quebec and increase one in Ontario is short sighted.  The political calculus of pitting one region against another is a “zero-sum” game benefiting no one.  Although we expect such parochialism from the Premier of Ontario, such divisiveness is beneath anyone who aspires to lead the entire country.</p>
<p>Brent</p>
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		<title>THE GOVERNMENT GIVETH BUT CAN IT TAKETH AWAY??</title>
		<link>http://brentrathgeber.ca/the-government-giveth-but-can-it-taketh-away/</link>
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		<pubDate>Wed, 09 May 2012 19:16:51 +0000</pubDate>
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		<description><![CDATA[I found the results of this past weekend’s electoral results in a variety of European contests distressing, although not entirely surprising.  In Greek Parliamentary Elections, moderate parties of the left and the right, who had help broker a fiscal bailout &#8230; <a href="http://brentrathgeber.ca/the-government-giveth-but-can-it-taketh-away/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>I found the results of this past weekend’s electoral results in a variety of European contests distressing, although not entirely surprising.  In Greek Parliamentary Elections, moderate parties of the left and the right, who had help broker a fiscal bailout package, were rejected in favour of more extremists.  In France, President Sarkozy, who was German Chancellor Angela Merkel’s strongest austerity ally, was defeated in favour of a Socialist replacement.  Meanwhile, municipal elections in Great Britain and state elections in Germany produced similar results.</p>
<p>What on the surface appears to be a rebuke of austerity in reality is an indictment of the entire European Welfare State.   Western Europe prides itself on a democratic tradition that, in fact, originated in Greece.  Yet in the post war ¾ century, obtaining and maintaining political office has meant a bidding war between politicians resulting in reduced work weeks, increased benefits, earlier retirements and reduced productivity.  In short, cradle to grave socialism has led to economic malaise and unsustainable levels of debt.</p>
<p>Is it any wonder that voters who bought into decades of electoral promises that increased the role of government in their lives would reject attempts to contract the role of the state??  There is no doubt that the austerity measures imposed by the former Greek Government were severe, as were the ones proposed elsewhere.  However, dire consequences require severe remedies.  And make no mistake the economic and fiscal reality of many western European countries were either dire or if left uncorrected, would become so.</p>
<p>So now what??  The Greek electorate can reject legislators who promote austerity but they cannot eliminate their unserviceable debt.  The French electorate can turf its President who promotes austerity but they cannot force bankers, who demand austerity, to continue to lend money to insolvent states.</p>
<p>Nobody wants to lose their “entitlements”.   If your father received a pension at age 52, why would you want to work longer??  If the state has been providing free daycare, who would want to start paying for that service??  But the issue is not one of choice but one of necessity.  Several European countries are bankrupt and others will be without severe fiscal correction.  If a family is illiquid, they must take corrective measures no matter how unpleasant.  If a company is bankrupt or insolvent, they will either comply with demands of creditors or have a trustee wind down their operations and distribute their assets.  These matters are never pleasant or painless; they are however from time to time necessary.</p>
<p>The medicine, although bitter, is always preferable to the malady.  But even in Canada, where our debt to GDP Ratio is a fraction of those in Europe, mild austerity is met with protest.  Quebec  Students are rioting to protest comparatively modest tuition increases and Opposition MPs continue to oppose changes to the Old Age Security System (notwithstanding they will not take effect for 10 years)!</p>
<p>But the reality is the public will almost always be opposed to and protest cuts to programs, benefits and services to which it has become accustomed.  As it is politically difficult to remove entitlements once provided, governments must be extremely prudent and cautious when considering those programs in the first place.</p>
<p>Brent</p>
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		<title>April 30: A Rite of Spring</title>
		<link>http://brentrathgeber.ca/april-30-a-rite-of-spring/</link>
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		<pubDate>Tue, 01 May 2012 20:38:11 +0000</pubDate>
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		<description><![CDATA[April 30 was the day that most Canadians filed their income tax returns and it is the deadline for Canadians who owe taxes to Canada Revenue Agency (CRA) to do so.  Therefore, I suppose filing an income tax return is &#8230; <a href="http://brentrathgeber.ca/april-30-a-rite-of-spring/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>April 30 was the day that most Canadians filed their income tax returns and it is the deadline for Canadians who owe taxes to Canada Revenue Agency (CRA) to do so.  Therefore, I suppose filing an income tax return is not so much a rite of spring as it is an obligation of spring.</p>
<p>Regardless, it is an important process.  Given the sophisticated and relatively inexpensive software that is available to assist in the process, for most uncomplicated returns, the process is quick and easy.  In fact, I suspect it would be technically possible for CRA, hypothetically, after receiving your Employer T-4 and your Charitable Receipts, to complete your return and issue a refund or an amount owing.  For self-employed Canadians or sophisticated investors that may not be practicable; regardless I believe it is important that all Canadians prepare and submit their own return.</p>
<p>The reason: to remind the taxpayer as to how much he or she actually pays in federal and provincial taxes.</p>
<p>Notwithstanding that the current Federal Government has cut taxes more than 120 times since taking power and that a typical family spends $3000 less in taxes than it did in 2006, taxes are still a problem for too many Canadians.  According to the Frasier Institute, the average Canadian family earning $93,831 will pay combined taxes (to all three levels of government) of $39,960 or 42.6%.</p>
<p>In fact, Tax Freedom Day, the day the average Canadian Taxpayer stops working for the state and starts working for himself and his family in 2011 was June 6th.</p>
<p>Filing a tax return is a not so subtle reminder of the taxpayer’s obligations to the federal and provincial governments.  In Alberta, it has been suggested that Alberta Health should periodically issue a “Statement of Benefits Paid” to show Albertans how much the health care system actually pays on behalf of that individual.  Under either scenario the beneficiary or taxpayer will almost invariably be surprised by the amount of benefits or obligation, as the case may be.</p>
<p>There is often a real disconnect between the government and the citizens it represents.  I suspect most individuals really do not fully appreciate where the money actually comes from for healthcare or any other service or program government provides.  A fallacy frequently exists that government has resources of its own, when the economic reality is that government has no such resources and does not create wealth; it merely redistributes the wealth it collects from taxpayers.</p>
<p>The federal government and every province except Saskatchewan are currently running deficits.  So notwithstanding that the average Canadian works more than 5/12 of the year for the respective levels of government, those level of governments’ insatiable desire to spend, means that 10/11 governments are not living within their means.</p>
<p>Certainly the federal government is dedicated to fiscal discipline and a return to balanced budgets by 2014.  Remembering that the government is merely the custodian of the monies it receives from corporate and individual taxpayers, there is no more effective way to get taxpayers to buy into the need for fiscal discipline than to remind them that they will ultimately be the beneficiaries of reduced government spending.</p>
<p>So look at Lines 260 and 435 of your recently completed Income Tax Return.  Thereafter, I am sure you will agree that your tax obligations are too great and the state should reduce its spending so that you may reduce those obligations.</p>
<p>Brent</p>
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		<title>Free Speech but Political Liability</title>
		<link>http://brentrathgeber.ca/free-speech-but-political-liability/</link>
		<comments>http://brentrathgeber.ca/free-speech-but-political-liability/#comments</comments>
		<pubDate>Wed, 25 Apr 2012 21:01:49 +0000</pubDate>
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		<description><![CDATA[Monday was the Provincial Election in Alberta; Tuesday the Justice Committee of the House of Commons began its detailed examination of Bill C-304 (Freedom of Speech), which would abolish section 13 of the Human Rights Code (the so-called Hate Speech &#8230; <a href="http://brentrathgeber.ca/free-speech-but-political-liability/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>Monday was the Provincial Election in Alberta; Tuesday the Justice Committee of the House of Commons began its detailed examination of Bill C-304 (Freedom of Speech), which would abolish section 13 of the <em>Human Rights Code</em> (the so-called Hate Speech provisions).  On the surface the events may seem to be disparate.  However, upon closer examination, they are inextricably linked.</p>
<p>I cannot explain the Alberta Election.  I cannot explain how every pollster and pundit was incorrect in their prognostications.  I cannot explain how there was a 10% vote shift in the dying days of the campaign.  I have no doubt, however, that the so called ‘bozo eruptions’ by a couple of Wildrose Candidates, was the largest contributing factor.</p>
<p>This brings me to PMB C-304, sponsored by the MP for Westlock-St. Paul, and seconded by me.  I support freedom of speech within all reasonable limits.  I defend politically incorrect and even offensive speech.  I believe it is absolutely necessary for society to have fulsome debates on controversial matters.  Without a doubt, something as once controversial as same-sex marriage would have been unthinkable and certainly unspeakable 50 years ago.  Minority viewpoints, if allowed to be advocated and debated, may become mainstream ideas and might ultimately be accepted by society.  But if censored, minority opinions will remain so and societal advancement will be stymied.</p>
<p>So I support Rev. Hunsperger&#8217;s right to make homophobic predictions regarding lakes of fire, although I vehemently disagree with those predictions.  Similarly, I support Pastor Leech’s right to believe in white electoral advantage, although I certainly do not believe that I am similarly advantaged.  They are after all only opinions.  As such, they can neither be proven correct nor incorrect and are constitutionally protected.</p>
<p>This is very different from true hate speech, which requires more than politically incorrect opinions.  To be hateful, the speech must advocate actual harm to either the person or the property of an identifiable group.  This type of speech, which attempts to incite actual harm to persons or groups, is sanctioned by s. 319 of the <em>Criminal Code</em>.  I support these <em>Criminal Code</em> prohibitions against truly hateful speech.</p>
<p>The difference is the difference between unnecessarily shouting “FIRE” in an empty theatre versus a crowded theatre.  The former is a matter of freedom of speech; the latter will imperil public safety and the resultant victims are what constitute a reasonable limit on freedom of speech.</p>
<p>But speech that is merely politically incorrect or even offensive does not need to be sanctioned by the <em>Criminal Code</em> or a Human Rights Tribunal.  These matters are self-regulating.  If on the internet, somebody blogs or tweets offensive thoughts, beliefs or opinions, fellow bloggers or tweeters will immediately dispute and dispel the odious comments and expose the bigot or homophobe.  Alternatively, censoring the individual through a Human Rights Tribunal Hearing will turn the individual into a martyr and guarantee him a larger audience than he would otherwise have or deserve.</p>
<p>Similarly, when candidates for political office utter comments that are politically incorrect and even offensive, they need not be censored (at least not by the state).  Again these matters are self-regulating, as the voting public will determine the appropriateness of the individual to hold public office.</p>
<p>Brent</p>
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		<title>Some Final Thoughts on the 30th Anniversary of the Canadian Charter of Rights and Freedoms</title>
		<link>http://brentrathgeber.ca/some-final-thoughts-on-the-30th-anniversary-of-the-canadian-charter-of-rights-and-freedoms/</link>
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		<pubDate>Fri, 20 Apr 2012 19:36:42 +0000</pubDate>
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		<description><![CDATA[The Charter affects the everyday lives of, for the most part, law-abiding citizens. This brings me to an important issue that will likely get determined depending on who wins next Monday’s Alberta Election.  The last Alberta Legislature passed, but did &#8230; <a href="http://brentrathgeber.ca/some-final-thoughts-on-the-30th-anniversary-of-the-canadian-charter-of-rights-and-freedoms/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>The <em>Charter</em> affects the everyday lives of, for the most part, law-abiding citizens. This brings me to an important issue that will likely get determined depending on who wins next Monday’s Alberta Election.  The last Alberta Legislature passed, but did not Proclaim, a Law allowing police officers to seize the vehicles of operators who have alcohol in their system in excess of 5 mg/ 100 mL of blood (0.05).  The proposed law has many many detractors, myself included, and almost certainly will be challenged on constitutional grounds, if proclaimed, on the rights against unreasonable search or seizure (S.8 ) and also the right to be presumed innocent until proven guilty (11(d)).</p>
<p>However, if the Province of Alberta can convince a Court that the scourge of impaired driving (at 0.05) is so detrimental to society, it might be able to argue that its law is salvageable under Section 1 of the <em>Charter</em> (the limitation provisions) which states that the <em>Charter</em> “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”</p>
<p>Having studied this matter fairly extensively on the Federal Justice Committee, I must predict that the suggestion that seizing private property, before trial, at 0.05, is a reasonable limit, is going to be a very difficult argument to make.</p>
<p>A recent and controversial case involving “Judicial Activism” is the <em>Insite Decision</em> regarding so-called safe injection sites or “shooting galleries” for drug addicts.  Perhaps in a new height in Judicial Activism, the Supreme Court actually weighed the positive benefits of harm reduction, reduced transmission of deadly communicable diseases and overdose intervention versus the Federal Government’s responsibility in enforcing the <em>Controlled Drugs and Substances Act.</em></p>
<p>The Supreme Court stated that although governments make policy, once those policies are translated into law, those laws are subject to <em>Charter</em> scrutiny.  The Court went on to conclude that the Minister of Health’s refusal to grant an exemption to Insite was “arbitrary and grossly disproportionate in its effect and hence not in accordance with the principles of fundamental justice”.  The Court then ordered the Minister of Health to grant Insite an exemption.  I am troubled by this decision more for its process than for its result.  The Court concluded that “the effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics”.</p>
<p>Surely it ought to be Parliament that weighs the benefits of harm reduction offered by safe injection sites versus the benefits of controlling illegal substances.  Both are valid policy objectives; but it is the role of government to rank and choose between competing policy priorities.  I suggest that it is the role of the Parliament, not the Court, to prioritize when competing policy objectives are in conflict.</p>
<p>In my view this is a dangerous trend in Judicial Activism when the Courts usurp the Parliament’s role in prioritizing policy objectives.</p>
<p>Another recent controversial decision from the Ontario Court of Appeal struck down the Criminalization of Common Bawdy Houses.  The Ontario Court reasoned that streetwalkers are at much greater risk than Bawdy House Sex Trade Workers, who are entitled to “Security of the Person”.</p>
<p>As we have seen, the<em> Charter </em>has fundamentally altered the relationship between the State and the Individual.  It has clearly stated and specified certain rights that the individual has that can only be infringed by the State subject to reasonable limits.  It has further altered the relationship between Parliament and the Provincial Legislatures and the Courts.</p>
<p>Although Parliament retains the not-withstanding clause over certain<em> Charter</em> provisions, the political liability associated with using it has guaranteed the clause’s infrequent use.  Accordingly, the concept of Parliamentary Supremacy has been compromised when Judicial oversight allows the Courts to not only strike down unconstitutional laws, but more recently actually rewrite them.  Although I regard this as a troubling development, Parliaments and Provincial Legislatures surrendered that function when they drafted and passed the <em>Charter of Rights and Freedoms</em> in the first place. Regardless, I continue to believe in the philosophy that inspires the Charter: protecting individual Canadians from the overzealous actions of the State</p>
<p>As John Diefenbaker famously said in 1960 when he introduced his then Bill of Rights “I am a Canadian, free to speak without fear, free to worship in my own way, free to stand for what I think right, free to oppose what I believe wrong, or free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.&#8221;</p>
<p>Brent</p>
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		<title>Is the philosophy of John Locke reflected in The Charter?</title>
		<link>http://brentrathgeber.ca/is-the-philosophy-of-john-locke-reflected-in-the-charter/</link>
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		<pubDate>Thu, 19 Apr 2012 21:12:46 +0000</pubDate>
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		<description><![CDATA[John Locke, the classical liberal philosopher believed the State exists to protect man’s unalienable rights, namely: life, liberty and property.  According to Locke, rights not granted by the State cannot be violated by the State. Philosophically, I similarly believe in &#8230; <a href="http://brentrathgeber.ca/is-the-philosophy-of-john-locke-reflected-in-the-charter/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>John Locke, the classical liberal philosopher believed the State exists to protect man’s unalienable rights, namely: life, liberty and property.  According to Locke, rights not granted by the State cannot be violated by the State.</p>
<p>Philosophically, I similarly believe in fundamental rights and freedoms.  I have a strong strain of libertarianism in my DNA and firmly believe that unless and until my actions begin to affect other individuals, I should be free to do whatever I want.  If I am on my own property, I should have the liberty to swing and flail my arms and fists as wildly as I choose.  However, my liberty can infringe neither upon your liberty nor your security. As John Locke further famously said, “my right to swing my fist ends where your nose begins.”</p>
<p>I want to employ a “Lockean” approach to comment on what is becoming an interesting issue in the current Alberta Election Campaign and that is this whole issue of “conscience rights”.  Section 2 of the <em>Charter </em>(fundamental freedoms) guarantees freedom of conscience and religion and also freedom of thought, believe, opinion and expression.</p>
<p>It is settled in Canada that homosexuals have the right to marry.  It is less settled that women have a right to control their own bodies and therefore have an abortion; although ever since the <em>Morgentaler</em> decision, which struck down Canada’s abortion law, in the absence of such a law, that right would appear to be unfettered.  But an interesting argument exists regarding the conscience, thought, opinion and religious beliefs of those who might be called upon to perform somebody else’s established right.</p>
<p>The Premier, interestingly enough a Human Rights Lawyer, is quite concerned about the Wildrose’s musing about “conscience rights”.  The Premier believes that some doctors could refuse to perform abortions if it goes against their personal moral code or that a civil marriage commissioner could refuse to perform a civil ceremony regarding same-sex couples.  I admit to being perplexed by her fear because <em>Charter</em> rights are supposed to protect individuals and their rights from government and its seemingly unlimited power. Yet the Premier seems to believe that the government’s role should include being able to force someone to act against their own conscience and their most deeply held opinions and religious beliefs in order to guarantee someone else’s rights.</p>
<p>This is where the rubber hits the road with respect to <em>Charter</em> Right enforcement. Which should take priority: one’s positive right to be married as a homosexual, or one’s negative right against state intervention regarding laws that infringe on one’s freedom of conscience and religion?</p>
<p>For me the resolution is quite simple. Remember Locke who said that “my right to swing my fist ends where your nose begins”?  Requiring a homophobic marriage commissioner to perform a gay marriage most certainly is a violation of his freedom of conscience and probably freedom of religion.  However, allowing him not to perform the ceremony, certainly does not infringe a gay couple’s right to be married.  They simply have to find another marriage commissioner.</p>
<p>This appears to be a reasonable accommodation when conflicting rights of conflicting individuals come into play.  Unfortunately, I believe that some politicians believe that certain rights take precedence over others.  However, that is firstly inconsistent with current judicial interpretation of the <em>Charter</em> and worse appears to be expressing a certain bias in favour of one’s own view of conflicting rights and thereafter imposing them on society.</p>
<p>It will certainly be interesting to see how an increasingly Judicial Activist Court deals with the issue of conscience rights versus equality rights and/or security of the person rights, should it ever be called upon to make that determination.</p>
<p>Tomorrow: Some final thoughts on the <em>Charter</em>.</p>
<p>Brent</p>
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		<title>Part II The Charter and Judicial Activism</title>
		<link>http://brentrathgeber.ca/part-ii-the-charter-and-judicial-activism/</link>
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		<pubDate>Wed, 18 Apr 2012 20:30:06 +0000</pubDate>
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		<description><![CDATA[There has been much criticism of the courts over the last 30 years for how they have dealt with the Legal Rights contained in Section 7 and the Equality Right Provisions contained in Section 15 of The Charter. In fact, &#8230; <a href="http://brentrathgeber.ca/part-ii-the-charter-and-judicial-activism/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>There has been much criticism of the courts over the last 30 years for how they have dealt with the Legal Rights contained in Section 7 and the Equality Right Provisions contained in Section 15 of <em>The</em> <em>Charter</em>.</p>
<p>In fact, how the Courts have dealt with the rights against unreasonable search and seizure and the right against arbitrary detention or imprisonment, have come under intense scrutiny.  Conceptually, these are very important rights. As a law-abiding private citizen, I certainly do not want agents of the state (i.e. the police) showing up on my property and demanding entrance without cause and certainly my right to be secure against unreasonable search or seizure protects against this.</p>
<p>However, this same right has been used successfully to exclude evidence when police do not have the proper grounds or search warrant to, for example, make a drug bust.  If a motor vehicle was routinely stopped for a traffic violation and the officer, for whatever reason, asked the driver to open up his trunk and found a bag of cocaine, in all likelihood the finding of cocaine would be deemed inadmissible in a Court of Law, because in this hypothetical the officer had neither a warrant nor reasonable grounds to search the trunk.</p>
<p><em>The Charter</em> specifically provides in Section 24 (2) “Where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms, the evidence shall be excluded.”</p>
<p>So we have an interesting dichotomy here. The same right, that keeps the cops out of my house without grounds to enter, also allows a drug dealer to escape conviction because of the breech of a <em>Charter</em> Right.  Certainly the majority of society supports a <em>Charter</em> protection that disallows state agents from entering private residences without cause, but gets frustrated when drug dealers walk away from their charges on technicalities such as in the situation that I just described.</p>
<p>However, we must be measured in our criticism of these decisions, remembering that it is the same freedom that protects you from unreasonable search by the state police on your own private premises that protects the criminal from the unwarranted search of his property such as the trunk of his motor vehicle.</p>
<p>Judicial Review does not end with evidentiary exclusions in criminal law matters.  On occasion, the Courts have struck down entire Statutes when they believed that there was a serious <em>Charter</em> violation that could not be saved by the reasonable limits rule in Section 1.  This was done in <em>R. v. Morgentaler [1988]</em>, which struck down Canada’s abortion law and very controversially in <em>Vriend v. Alberta [1998],</em> in which the Supreme Court of Canada, found that Alberta’s exclusion of homosexuals from protection against discrimination violated Section 15 of the Charter (equality rights).  In the latter case, the Court actually read that protection into the Law.  This was new and controversial territory for the Supreme Court, which previously had struck down laws which they found to be unconstitutional; but <em>Vriend</em> represents a new era of Judicial activism when the Court actually “read into a statute words that were not present.” Specifically, the Court stated that the <em>Alberta Human Rights Codes</em> ought to have protection against sexual discrimination as a prohibited ground of discrimination.</p>
<p>Although I agree with that assessment, I believe that is a decision for the Legislature to make. As I mentioned, previously the Courts would only strike down words that they found constitutionally offensive, as opposed to this new era of Judicial activism, where the Court actually wrote words into Statutes that presently were not there.</p>
<p>Judicial deference would imply that courts defer to legislatures to make law and only strike down laws deemed to be constitutionally offensive.  Judicial Activism, as seen in <em>Vriend</em>, has Courts actually re-writing laws.  As Judges are not politically accountable to the public, I find this notion troubling.  However, as the <em>Charter</em> provides in the Remedy Section (24) that a Court may, following a breach, tailor a remedy it “considers appropriate and just in the circumstances”, it would appear the <em>Charter</em> expressly allows Courts to do just that.</p>
<p>Tomorrow: Is the philosopher John Locke (defender of liberty) reflected in the <em>Charter</em>?</p>
<p>Brent</p>
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		<title>Happy Birthday Charter</title>
		<link>http://brentrathgeber.ca/happy-birthday-charter/</link>
		<comments>http://brentrathgeber.ca/happy-birthday-charter/#comments</comments>
		<pubDate>Tue, 17 Apr 2012 16:56:29 +0000</pubDate>
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		<description><![CDATA[This is the first in a four-part Blog, dedicated to the 30th Anniversary of the Canadian Charter of Rights and Freedoms. On April 17, 1982, I was 17 years old and completing high school in Melville, Saskatchewan.  Barely mindful that &#8230; <a href="http://brentrathgeber.ca/happy-birthday-charter/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>This is the first in a four-part Blog, dedicated to the 30<sup>th</sup> Anniversary of the <em>Canadian Charter of Rights and Freedoms</em>.</p>
<p>On April 17, 1982, I was 17 years old and completing high school in Melville, Saskatchewan.  Barely mindful that in a city almost 5000 KM away, which would one day become my second home, a signing ceremony on Parliament Hill would fundamentally change both of my yet-to-be-defined future career paths (Law and Politics).</p>
<p>The event, of course, was the 1982 patriation of the Canadian Constitution, when Queen Elizabeth II signed into law the <em>Constitution Act</em>, which gave Canada its own Constitution complete with a <em>Charter of Rights and Freedoms.  </em></p>
<p>A mere five months later I was studying, among other things, Political Science at the University of Saskatchewan and it is then and there that I became aware of the impact the Charter would have on the everyday lives of Canadians.</p>
<p>The <em>Charter of Rights and Freedoms</em> was the brain-child of then Prime Minister Pierre Elliot Trudeau. It sought to preserve Constitutional protection to basic fundamental rights and freedoms enjoyed by all Canadians.  Conceptually, few Canadians were in opposition; however, several provinces expressed concern of the anticipated expanded role of the Courts.  It wasn’t until a so-called “Kitchen Cabinet Compromise” between Canada and the Attorney Generals of Ontario and Saskatchewan, which included a limitation clause in Section 1 and a controversial “Not-withstanding Clause” in Section 33, that the <em>Charter of Rights and Freedoms</em> became a reality.</p>
<p>The <em>Charter</em> purported to replace the 1960 Canadian Bill of Rights which statutorily defined basic rights and freedoms for all Canadians. But there is a huge and fundamental difference.  The <em>Canadian Bill of Rights</em>, also known as the Diefenbaker Bill of Rights, was simply a Federal Statute.  Like any other Federal Statute, it could be amended by a simple Act of Parliament and it had no effect, or jurisdiction, over any executive or legislative action of any province or municipality.  The <em>Charter </em>was different; as part of the now patriated Canadian Constitution, all laws, not only of the Federal Parliament, but of each and every province, would have to conform to the Charter or risk being struck down as being unconstitutional.</p>
<p>Critics of course were worried that this would lead to an expanded role for the Courts in terms of Judicial Review and ultimately an Americanization of both our Legal and Political Systems.  Certainly, Americans have prided themselves on constitutionally protecting many unalienable rights by enshrining them as amendments to the U.S. Constitution.</p>
<p>Theoretically and notionally, the Canadian Charter of Rights and Freedoms attempts to enshrine and protect constitutional protection largely for ‘negative’ as opposed to ‘positive rights’.  A negative right is a protection against the State doing something.  The fundamental freedoms contained in Section 2: freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press, are all negative rights. Accordingly, any law of any Parliament or Legislature which infringes upon any of those fundamental freedoms is prima facie unconstitutional.  Similarly, the important legal rights contained in Section 7, including the right to life, liberty and security of the person and the right to be secure against unreasonable search or seizure (Section 8 ) would all be considered as negative rights.</p>
<p>This is very different than the attempt at creating ‘positive rights’, which mandate that the State do something, such as Section 15 which states and I quote “15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” The equality rights contained in Section 15 have been used successfully on occasion to actually expand the role of government and force government to do something it may not have otherwise been inclined to do.</p>
<p>Tomorrow, we will see how Section 15 litigation has led to Judicial Activism.</p>
<p>Brent</p>
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		<title>What I really said about the Health Care Transfer</title>
		<link>http://brentrathgeber.ca/what-i-really-said-about-the-health-care-transfer/</link>
		<comments>http://brentrathgeber.ca/what-i-really-said-about-the-health-care-transfer/#comments</comments>
		<pubDate>Tue, 10 Apr 2012 21:05:45 +0000</pubDate>
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		<description><![CDATA[On April 7, 2012 the St. Albert “Gazette” published a defamatory and sensationalized byline, “Local MP wants health transfer axed.”  In the nine paragraphs that follow, rookie reporter Megan Sarrazin could not have had a poorer understanding of a speech &#8230; <a href="http://brentrathgeber.ca/what-i-really-said-about-the-health-care-transfer/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>On April 7, 2012 the St. Albert “Gazette” published a defamatory and sensationalized byline, “Local MP wants health transfer axed.”  In the nine paragraphs that follow, rookie reporter Megan Sarrazin could not have had a poorer understanding of a speech that I delivered at the St. Albert Rotary on March 30, 2012, which she attended.</p>
<p>So the following is the actual words (verbatim) of what I shared with Rotarians regarding the Health Care Transfer:</p>
<blockquote><p><em>Finally, I want to talk briefly about the Canada Health Care Transfer.  As you all know, health care is the largest budget item in every provincial budget in Canada and continues to outpace growth and many economists worry about its long term sustainability.  Although health care is a provincial responsibility, the magnitude of resources required plus some adherence to national standards, mandates significant federal involvement.  Late last year the Minister of Finance, Jim Flaherty announced that the accelerator in the Health Care Transfer which is 6% for the next five years will increase thereafter by GDP nominal growth or 3% whichever is greater.  </em></p>
<p><em>Although criticized by many provinces (Alberta was in fact not one of the critical provinces) future growth will be sustainable as it will be tied to the growth in the Canadian economy.  </em></p>
<p><em>As $26B is currently transferred from the Federal Government to the respective provinces for health care, <strong>theoretically </strong>the feds could balance the budget simply by getting out of the health care transfer business.</em></p>
<p><em>While I am not advocating leaving the provinces entirely to their own devices with respect to health care and the Canada Social Transfer, one must seriously question the efficiency of parallel bureaucratic structures administering the same programs.  There is after all only one taxpayer.</em></p>
<p><em><strong>Theoretically</strong>, if Canada were to get out of the Health Care Transfer business, it would provide tax points to the provinces to make up the shortfall.  Essentially, the federal government would reduce your federal taxes payable, thereby allowing the province to increase its taxes to the level required to replace the federal – provincial Health Care Transfer.  </em></p>
<p><em>The savings would be created by reducing the hundreds of civil servants employed by both Canada and all of the provinces whose job is to collect, then transfer, then receive and finally spend the earmarked health care dollars.  </em></p>
<p><em>This idea would have no effect on the taxpayer and is an idea that needs to be addressed and costed, but one which will receive significant push-back, especially from the public sector unions.</em></p></blockquote>
<p>Wanting to start a theoretical discussion on giving the provinces the tax room necessary to fund health care, absent a bunch of bureaucratic paper shuffling, couldn’t be more different than wanting the health care transfer “axed” or “leaving the provinces to finance the health care system on their own”.</p>
<p>This represents a new low, even by St. Albert “Gazette” standards, in accurate and objective reporting.</p>
<p>Brent</p>
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		<title>F-35 Procurement vs. Ministerial Accountability</title>
		<link>http://brentrathgeber.ca/f-35-procurement-vs-ministerial-accountability/</link>
		<comments>http://brentrathgeber.ca/f-35-procurement-vs-ministerial-accountability/#comments</comments>
		<pubDate>Thu, 05 Apr 2012 21:42:48 +0000</pubDate>
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		<description><![CDATA[As I watched Bob Rae’s admittedly thoughtful question of Privilege tabled earlier today in the House of Commons alleging Ministerial impropriety regarding the F-35 Fighter Jet (non) procurement, I was reminded of the British sitcom/mocumentary “Yes Minister”.   In it, a &#8230; <a href="http://brentrathgeber.ca/f-35-procurement-vs-ministerial-accountability/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>As I watched Bob Rae’s admittedly thoughtful question of Privilege tabled earlier today in the House of Commons alleging Ministerial impropriety regarding the F-35 Fighter Jet (non) procurement, I was reminded of the British sitcom/mocumentary “Yes Minister”.   In it, a rather hapless politician is routinely “managed” by his more intelligent Deputy Minister.  Although a clever British satirical sitcom, “Yes Minister” parodies the reality that the bureaucracy has the expertise and experience that few politicians will ever achieve in any given subject matter.</p>
<p>Mr. Rae’s Privilege Question boils down to whether Ministers of the Crown misled Parliament regarding the estimated project cost of $25B for the F-35’s, when Parliament was provided with a $14.7B figure in the weeks before the last election.</p>
<p>This is where Parliamentary Principle and Ministerial Accountability collide head on with reality.  According to the former, Ministers are responsible to the House of Commons for the operations of their respective departments.   Something as significant as a $10B underestimate in Canada’s then largest military procurement would theoretically call for a Minister’s resignation.   However, given the highly technical and unique market regarding military procurement, is it realistic to expect politicians to have the requisite technical expertise regarding said purchase??</p>
<p>Firstly, military procurement is a market unique unto itself.  In a normal competitive market there are multiple suppliers and many purchasers.  Secondly, a perfect market requires perfect information regarding price and quality.  But when it comes to stealth fighters, there are only a few manufactures and even fewer purchasers (NATO allies).  Moreover, the requirements are so technical that perfect market information is impracticable. Accordingly, this is not a normal operating market and therefore the suggestion of a truly competitive process is largely irrelevant.</p>
<p>Regardless, if you are going to sole-source a procurement of this magnitude, extra care must be deployed to ensure transparency and value for taxpayer money.  However, in this case it appears DND Officials decided in advance which plane they desired.  Thereafter, according to the Auditor General, the procurement was almost accomplished without proper documentation, without accurate data and costing and outside the boundaries of normal procurement rules.</p>
<p>The other odd peculiarity of military procurement is that it is also used, given its economic relevance, for non-military purposes such as industrial benefits, regional development and job creation.  As these decisions, similarly, rest solely with the Executive (Cabinet), it heightens the need for Parliament to assure value for taxpayer money.</p>
<p>Thankfully, little public money has actually been spent on this file; that is if you consider $200M little public money!!  It is, however, less than 1% of $25B (whewwww!!)</p>
<p>Parliament came into existence 900 years ago to assure the Crown spent public monies wisely.  Parliament’s prerogative is to hold Ministers to account.  In turn, Responsible Government mandates that Ministers are responsible to Parliament for their respective departments.  Mr. Rae’s Point of Privilege raises a pivotal question for our Parliamentary Democracy.  Is Parliament entitled to accurate information to hold the Government to account and assure the public purse is spent wisely?  Or can a bureaucracy with superior technical expertise “manage” Ministers and in turn Parliament with impunity??</p>
<p>Brent</p>
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