Reflections on Trump’s Inauguration: Why Character and Judgment Matter in Politics

Trump is a shameless liar, a divisive bully, a misogynist, a thin-skinned narcissist, and an ignoramus. Does it matter? Why should we care about the character and judgment of those we elect to public office?

To answer this question, I start with a line of argument that suggests character and judgment are less important than good institutions, and that good institutions can compensate for poor character. I then want to consider some of the problems with this viewpoint. I argue that good institutions are not enough. Good institutions can foster good character and judgment, and vice versa; but bad character and judgment can undermine good institutions and corrupt democracy.

Whatever we may think of Trump and, in particular, whatever doubts we may entertain about his judgment or temperament, he will operate within a rule-of-law-based system, with a powerful set of checks and balances designed to limit the damage that he can do to the democratic system. Should he seek to violate the constitution or act arbitrarily, he will confront not only the courts but also constraints within the executive branch that have been established to ensure procedural or administrative justice is done. Republicans control the Congress, and this means he will have an ally there, but the new President does not control the Republicans in Congress. They will be a weak mechanism of accountability, since the GOP has increasingly become an anti-system party, but there are a few responsible Republicans in Congress, and the Democrats will also use their influence to uphold democratic oversight. Moreover, the US democratic system as a whole provides many veto points for the public, the media, and powerful private interests to prevent government from act in ways that might threaten basic liberties. In short, the US Constitution will constrain what Trump can do, and the basic realities of the political process are likely to prevent him from doing any real, lasting damage to US democracy.

There may be flaws in this line of argument, but let’s accept that a Trump presidency doesn’t necessarily spell the end of the republic. What does this argument, nonetheless, leave out? It leaves out all the damage that can be done to institutions when the politicians who operate within them fail to respect the underlying principles and values they embody. Institutions may or may not be robust enough to survive this, but even if they do, the vitality of democracy depends on the way in which good institutions foster practices that in return reinforce those institutions rather than corrupt them. This basic point can be made in at least four different ways.

First, the separation of powers is not a strong bulwark against despotism unless properly understood. In the United States, the separation of powers tends to be understood in terms of checks and balances, which is a feature of presidentialism. To use Madison’s immortal phrase, “ambition must be made to counteract ambition.” If we have learned anything from the current era of hyperpresidentialism it is that this formula is problematic. It is actually very hard for courts and legislatures to stop over-weening presidents from acting in ways that violate constitutional norms. The original meaning of the separation of powers, which can be traced back to Aristotle and forward through Montesquieu to contemporary theories of deliberative democracy, holds that the separation of powers is about the importance of office holders performing specific functions.

A separation of powers system requires that legislators bring laws into effect, judges interpret and apply laws with respect to particular cases, and the executive implements decisions necessary for the day-to-day functioning of the constitutional order in a manner consistent with the rule of law. In other words, it is essential that office holders understand the competence and jurisdiction associated with their roles and learn to perform them well.

This is where Trump represents a problem. At no point since his entry into politics has he indicated any interest whatsoever in adapting to his new public roles. From the moment he descended by escalator in the gilded Trump Tower to announce his candidacy, to when he failed to pivot from candidate seeking the support of his party to presidential aspirant, to his failure to moderate his behavior when he became president-election, Trump has proven impervious to the need to adapt as he shifts from private to public roles. He gives no indication that he intends to comport himself in government any differently. Yet if he continues to criticize judges, excoriate the media, and bully legislators, he will do damage to the separation of powers properly understood.

Second, we can say that Trump’s victory is already a symptom of a deeper malaise in the US body politic. Trump’s message resonated with what Arlie Hochschild, in her remarkable book, Strangers in Their Own Land, calls the “deep story” – a story she heard again and again among the people who support the Tea Party in the American south. Hochschild spent years talking with tea party supporters, trying to make sense of their worldview. They seemed to hate the federal government without acknowledging the benefits they received from it, and to resist regulation that could improve their lives. As a result, they voted for Republicans who were often responsible for perpetuating their plight. To explain their political attitudes she developed a powerful metaphor.

Imagine, Hochschild writes, you are in a line of people on a pilgrimage, trying to climb a hill, over the summit of which lies the American dream. At the back of the line are people of colour, the poor, the elderly, the uneducated. The line moves slowly, and even begins to reverse; then you see people “cutting into the line ahead of you.” They are not following the rules, but they are getting a leg up—special preferences, benefits, and sympathy. Not only that, they are also getting the support of the government. The government is supposed to be like an umpire monitoring the line, ensuring it is orderly, but rather than making sure everyone stays in line, it is actually helping those who are cutting in front of you. You feel betrayed and angry.

Given this frame, or “deep story,” the appeal of Trump is readily understandable. In promising to “make America great again,” he appeals to the way things were before the principle of equal opportunity was betrayed. He promises to take the line-jumpers to task, and to restore the status quo ante. His electoral success reflects the depths of disenchantment among those who feel left behind. For them, Trump’s many vices are more than balanced by his ability to craft a message that resonates with their deep story.

One of the great paradoxes of Trump is that he breaks all the established codes of appropriate communication—he Tweets whatever is on his mind, at any time of day or night; he berates reporters and criticizes comedians and rates actors; he holds grudges against people who criticize him, especially in the media; indeed, he treats the media as a whole as part of a rigged system.  And yet at the same time he is an extraordinarily effective communicator with his base. This is, of course, the essence of demagoguery. It is the mark of the politician who is wily but unwise.

Third, Trump’s path to power exposes weaknesses in the democratic system, including the nomination process, the electoral system, the party system, and party organizations. The failure of these institutions to prevent the rise an outsider – a leader without prior experience in elective office at any level of government – is a remarkable indictment of the political system as a whole. There are evidently breaches in the various filters that have been put in place to ensure that elected officials are socialized by the political process. Politicians are expected to understand the working of government. Before a candidate can occupy the highest office in the land he or she should have a record of successful administration in lower offices of government. Hillary Clinton, one of the most qualified candidates ever to run for the presidency, lost against someone who had no record of public service. None of the political filters designed to promote excellence in public service were sufficient to prevent the rise of a candidate who promised, in effect, to tear the system down. It was precisely Trump’s evident contempt for the rule of law that resonated with many voters, which places him in a position to potentially undermine institutions with impunity. It sets up a tension between the democratic legitimacy of a leader with a mandate and the legitimacy conferred by the institutions themselves. Such tensions, familiar to those who work on precarious democracies, are unusual among established democracies.

Fourth, the argument that institutions will constrain the excesses of a leader is weakened by the fact that the United States is a super-power. Not only does the president have his finger on the nuclear buttons, he controls the most powerful military machine in human history. By questioning international norms and institutions like the European Union, NATO, NAFTA, Trump makes it clear that he does not intend to play by the rules of international diplomacy or statescraft. It is in those spheres in which the president has the greatest discretionary power that the importance of character and judgment are most apparent. Trump’s worst mistakes are likely to be in those areas of decision-making that largely affect people outside the United States, especially in theatres in which the constraints on the exercise of US power are weakest.

A robust democracy requires good institutions, but good institutions are not enough. They need to be sustained by democratic practices that demand wisdom and virtue from both politicians and voters. The rise of a leader who lacks good character and judgment represents a fundamental threat to democracy. The threat is not necessarily that the institutions will collapse, but that they will lose their meaning and legitimacy. There is every reason to fear that the American dream, once a unifying vision, has been replaced by deep divisions over the destiny and purpose of the republic. Trump will exacerbate rather than heal those divisions. For those who wish to preserve the republic, the challenge will be not just to resist Trump, but to challenge him with a more generous and democratic vision of the American dream.

Aristotle’s Principle of the Mean

Aristotle says “It is by refraining from pleasures that we become temperate, and it is when we have become temperate that we are most able to abstain from pleasures. Similarly with courage; it is by habituating ourselves to make light of alarming situations and to face them that we become brave, and it is when we have become brave that we shall be most able to face an alarming situation” (1104b). When we are placed in an alarming situation we feel panic and confusion, partly because we don’t know what is going on; we may react badly, focusing on the wrong things. But if we prepare for dangerous situations, and start with risks we understand and have prepared for, we learn to overcome our fears and we let our training take over. Once we have done this with small risks, we can confront larger risks. By becoming brave, we learn to face greater danger. This is a kind of iterative, self-reinforcing process.

At each iteration we may error on the side of becoming over-confident or over-apprehensive. If we are over-confident, we become reckless and may harm ourselves or others; if over-apprehensive, we will not master our fears. Moreover, not all experience is good – some experience may teach us bad habits. That is why we need wise mentors who can point us toward the right balance, which will allow us to progress toward our goal or aim. And this will vary from one person to another. Aristotle emphasizes that the mean is in relation to us, not to the thing we are doing. A good mentor or teacher will know what the individual student needs to learn.

But then Aristotle throws a curve ball (1107a). Virtue is a mean with respect to two vices (excess and deficiency), but “in respect to what is right and best, it is an extreme.” Thus, there can be no mean or excess or deficiency in courage because “the mean is in a sense an extreme” (1107a25). Courage is a virtue that does not require moderation, just as adultery (his other example) is a vice which cannot be accepted even in moderation. What great courage demands in a particular situation, however, will be the mean between recklessness and apprehensiveness. To say courage is an extreme doesn’t mean an endorsement of extreme courage or recklessness. Rather, courage will mean different things to different people at different times and places, but getting it exactly right is always desirable and that requires action guided by the right principles as well as the insight to know what to do in a particular situation.

With the right orientation we can achieve virtue by following the principle of the mean. Using “evidence of visible facts to throw light on those that are invisible” (1104a15), Aristotle says excessive of insufficient exercise are harmful, and the same is true for eating and drinking. It is not just that different people need different amounts of exercise and food. Someone who drinks and eats only for pleasure will not find the mean, but someone who eats and drinks to be healthy will. Contrary to the view that the principle of the mean is useless or vacuous, Aristotle is saying not only that there are right and wrong ways to do things, but that we will only find the mean if we are oriented to the good. But this does seem to beg the question: why would we be oriented toward the good?

Aristotle attaches considerable importance to goods intrinsic to activities. I think this has to do with activities that enable us to function well—i.e. excellence. “Any kind of excellence renders that of which it is an excellence good, and makes it perform its function well” (1106a15). Think about riding a bicycle. It is a purposive activity not only in the sense of going from one place to another (an external aim), but it is intrinsically important not to fall off in the process! In other words, there are purposive actions that are performed as part of the activity—the pedalling, the balancing, the moment-to-moment judgments of speed and direction—so that were one to stop, the activity would come to an end. One could stop trying to get from place to place and still be biking, but one cannot stop pedalling and continue to bike. And the activity here requires finding various means: for example, you can’t go too fast or too slow, you can’t tilt too far in one direction or another, and you need a mix of automatic and conscious effort. Learning to ride a bike is not done by first acquiring technical skill and then putting it into practice. It is through the practice that we acquire the skill.

The mean is intrinsic to the structure of the activity. This seems borne out by the idea that failure is “possible in many ways,” but success “in only one” (1106b30), i.e. that which is the best. The “best” means, presumably, the best of which we are capable. Phronesis arises through activity, specifically the development of one’s potential. Aristotle starts Book II with the observation faculties are endowed as potentialities and are only later actualized, but virtue we learn by doing. It is as if he is saying that when we try to be virtuous we realize we’ve already doing it, or that the aspiration to do something well comes from the practice of already doing it. The minute I try to make a work of art, I am already trying to do it well. Rawls calls this the Aristotelian principle: “other things equal, human behings enjoy the exercise of their realized capabilities (their innate or trained abilities), and this enjoyment increases the more the capacity is realized, or the greater its complexity” (Theory of Justice, p. 426).

Between Rules and Practice: Why We Need Practical Wisdom in Life, Work, and Politics

The following talk was presented at the Peter Wall Institute for Advanced Studies. You can watch the talk on Youtube.


The ancient Green philosopher Aristotle believed that every activity or practice aims at some good—some state of affairs one has reason to want (or should want). The teacher encourages learning; the nurse brings the sick back to health; the legislator makes laws.

Good practitioners tend to have what Aristotle called virtues or “excellences.” These are qualities of character that enable the practitioner to bring about these goods. They include things like: courage, patience good judgment, the ability to deliberate, discernment or understanding, and empathy.

Aristotle believed that practitioners with such character traits are more likely to know what is the right thing to do in a given situation, to do it at the right time, in the right way, and for the right reasons. This is what Aristotle called practical wisdom, or phronesis.

Nowadays, talk of virtue or character seems quaintly old fashioned. We think it is enough to follow rules and incentives. Aristotle would have argued that rules and incentives are important, but often they’re not enough.

We need organizations that encourage practitioners to make wise decisions. Only wise practitioners can attain the purposes intrinsic to our institutions.

I’m going to give you some examples of wise practitioners. But first let me give you an example of what happens when organizations discourage practically wise decisions.

On July 5, 2013, an mile-long train carrying over 70 tanker cars, many full of crude oil, was parked at the top of a hill slopping toward the town of Lac-Megantic, 10 km away.

The engineer secured the train with 7 hand breaks but did not turn off the independent airbrakes to check whether the handbrakes alone were sufficient to hold this train in place.

The engineer had worked the train hard to get up the hill and he noticed that the main engine was spewing dark and oily smoke.

After talking with the rail traffic controller, it was agreed to call it a night — the morning crew would fix the troubled engine.

Shortly afterward the engine caught fire. A call to 9-1-1 brought firefighters to the scene. Following protocol, and with the agreement of the track forman, firefighters turned off the train’s engine to kill the fire, not realizing that this would take the pressure out of the airbrakes.

Again, the train was left unattended.  As the pressure in the airbreaks dropped, the train started to roll.  By the time it hit the town of Lac-Megantic it was going 100 km/hr. 6 million litres of crude oil were spilled into the town, and caught fire almost immediately.

The derailment and explosion incinerated the downtown core, killing 47 people. The city looked like it had been hit by a bomb.

How could this happen?

Screen Shot 2016-05-15 at 6.08.42 PMImagine that we are all-knowing and judicious observers. We look down on Lac-Megantic as if from above.

We can see that nobody grasped the fact that this train, parked on a hill, was like a missile pointed at the heart of the town.

We can see that everyone was trying to do their job, but they were operating inside separate boxes.  One of those boxes was, of course, the company. If we look inside, we discover that it did not have a good safety culture and its CEO was only interested in profits. The company didn’t provide good safety training. It used cheap substandard parts in repairs which caused the train to catch fire. It cut corners, literally: it routed trains with dangerous cargo through populated areas. It parked trains on main lines not on sidings. It used cars that were easily punctured.

If we widen our lens, we discover that the number of government inspectors was drastically reduced in the years leading up to the disaster, even as the number of trains carrying oil dramatically increased.

As all-knowing spectators we can see that the disaster could have been avoided by wise decisions.

–       Suppose the engineer testing hand breaks w/o airbreaks

–       Suppose the train had been parked on a siding

–       Suppose the CEO had promoted a culture of safety in  his company

–       Suppose inspectors had noticed the many problems with company’s practices and had enforced safety regulations

Those would have been wise decisions. How can we create organizations that induce wisdom among its members? The answer, not surprisingly, often comes from practitioners themselves.


We need organizations that encourage practitioners to make wise decisions. Only wise practitioners can attain the purposes intrinsic to our institutions.

I am going to give you a couple of examples of practically wise professionals. I am going to show you how in each case they encountered a morally-significant problem. They pursued the aims of their activity. Sometimes they ran up against the culture of the organization of which they were a part. And when that happenedLiz Evans, they created new institutions to encourage better practice.

The first example is Liz Evans. She was a psychiatric nurse working in a Vancouver hospital dealing mental health emergencies. Before doing her daily rounds she’d sit at a table with doctors, other nurses, occupational health specialists, and orderlies. She’d talk to about getting to know her patients—how she listened to them, talked to them, and tried to understand their problems.
Her colleagues would look at her like she was wasting their time.

Evans found that hospitals are great for dealing with acute emergencies, but they put people in boxes. They take them in a moment of time, and treat their symptoms. She found it was hard for hard for practitioners to take off their physiological lens and see that they were dealing with people who had stories, who were dealing with sadness and pain. Many of the patients in her ward were homeless and poor. The hospital staff would treat their symptoms and discharge them without dealing with the underlying problems. Often they’d be back in a month or so, or worse they’d not be back which might mean they had perished in the streets.

So Evans left the hospital. She joined an NGO that was trying to provide a safe space for the homeless and poor in the DTES. Around this time about 400 people were dying of overdoses every year in BC, mostly in the DTES. That’s more than one person every day. HIV infection was the highest in North America – and comparable to SubSaharan Africa.

So, working with other nurses, nuns, academics, drug users, mothers of drug users, church leaders, and lawyers, Evans helped turn that safe space for vulnerable people into a supervised injection site that would provide clean needles, prevent overdoses and the spread of infection, and detox for those who were wanted it. It is called InSite.

To run an organization like this demands a special set of skills. The ability to know when to leave someone alone. To listen to what people say they need, rather than offer what you think they need. Putting them at the centre of attention, not yourself.

InSite has reduced HIV infection and overdoses, extended life expectancy, and saved lives. It has won the support of mayors, councilors, parliamentarians. The police regularly refer people to InSite. And it has survived a supreme court challenge.

None of this would have happened had people like Liz Evans and many others not seen the human side of the train wreck that was happening in the DTES. She had (and has) the qualities of character—empathy, the ability to listen, the courage, and the motivation—that comes from the belief that health care is about preventing harm and finding ways to help people and communities to flourish.

The capacity for wisdom may be inherent in human nature, but it has to be cultivated. Wise practitioners are interested in how you cultivate good practice.


Practical wisdom involves knowing the right thing to do in a given situation, doing it at the right time, in the right way, and for the right reasons. Politics may be the activity in which we need practical wisdom the most – and where it can be hardest to achieve.

When Preston Manning was elected as leader of the official opposition he saw many problems with how Canada’s democracy was working.  Parliamentarians had few free votes, backbenchers had little power, committees were not working well. Question period was a circus.

His initial goal was to try and change the institutions. He proposed senate reform. He tried to reduce partisPreston Manninganship in the House of Commons. For example, he would give ministers questions in advance of question period so that they could prepare thoughtful and informed answers. It didn’t last for long. Most MPs prefered the posturing and pettiness that would get them on the 6 o’clock news.

So, when he left Parliament, Manning decided to try another solution: to strengthen the “values, knowledge, skills, ethical foundations” of the people in politics. What better way than a school for politicians.

After all, if you want to be a doctor, lawyer, teacher, firefighter, a train engineer, nurse, a soldier, or entrepreneur, there are schools for all those things. Why not for politics? Politicians manage the biggest budgets and run the largest organizations in our society. They are responsible for the laws and regulations that govern every aspect of our lives.

So Manning approached UBC to propose a school for politicians. For the past 3 years we’ve been running a Summer Institute for Future Legislators. The goal is to focus on what it means to be a legislator. To educate politicians so they have the knowledge, discernment, judgment, courage, capacity for deliberation, and other capabilities or virtues necessary to make good laws and wise policies.

We are already seeing some success. Last year one of our participants, Heather Sweet was elected to the Alberta Legislature. She said she was glad to participate in the program, and learn about legislation, representation, constituency service: “exposure to inspiring practitioners,” she said, “is helpful to anyone interested in serving in elected office whether at the local, provincial or federal levels.”

Good laws and regulations are important, but they are not enough. We also need wise practitioners.

We need practitioners with the skill and knowledge to interpret and apply laws and regulations.  And most importantly, we need wise practitioners—like Liz Evans, Preston Manning—to help us design organizations that encourage the people who work in them to become wise practitioners.

I began this series with the tragedy at Lac-Megantic because it is a metaphor for the runaway problems we face in our complex and inter-connected world. Runaway climate change. Runaway epidemics. Runaway violence. Runaway inequality. In the face of these challenges we need practical wisdom like never before.

I have given you examples of wise practitioners – people who have confronted morally-significant problem and have been able to grasp the full meaning of those problems.

They have the character traits and virtues necessary to be good practitioners. They illustrate through their example how good practice involves more than rule-following or responding to incentives. They illustrate how a wise practitioner will often refuse to accept the narrow definition of a problem imposed by an organization—a bureaucracy or party—particularly, when that gets in the way of the aims of an activity.

Sometimes we need to step outside the “boxes inside boxes inside boxes” that the organizations we work in create. Wise practitioners are often at the forefront of efforts to change the institutions in which we work to enable the kinds of practices that truly lead to the public good.

We need practical wisdom in all aspects of our lives—our friendships, our families, our work places, our leisure activities, and in our politics. Happily, practical wisdom is something that comes naturally to us, and is an intrinsic part of what it means to be alive. As Aristotle understood, the pursuit of the good is the very essence of what it means to live a fully human life and to flourish in the communities in which we live.

After the Paris Attacks: Canada’s Role in the Fight Against ISIS

Comments to be presented at: “After the Paris Attacks: What Must we Learn?”
Liu Institute for Global Issues – Multipurpose Room. December 1 at 12:30 PM 

There are few certainties to guide our response to the threat of ISIS, but one thing seems clear: we do not have a strategy. As one US military commander put it last fall, “We do not understand ISIS, and until we do, we are not going to defeat it.”

Let me simply note two of the most obvious unresolved dilemmas facing the United States and its allies. A military defeat of ISIS would benefit Bashar al-Assad’s regime in Syria. So, assuming the US were to have an effective strategy against ISIS, that would still leave unresolved the matter of how to rebuild Syria. Gwynne Dyer has written a book called “Don’t Panic” in which he concludes that to stop ISIS we have to back the Assad regime. Perhaps Dyer has failed to take his own advice, but his point does underscore the dilemma.

Another dilemma arises from the proposed solution of containment. Containment was a strategy used against the Soviets during the Cold War. The USSR was a state. ISIS is emerging as a prototypical state. It taxes and seeks to monopolize coercion within a territory, and asserts its right to rule—as a Caliphate—based on religious legitimacy. It has a rudimentary bureaucracy with standard operating procedures; a flag; it trades oil and antiquities outside its borders; and it produces slick if sickening propaganda. ISIS controls the territory and population of a small country. It operates like a protection racket (to use Charles Tilly’s term) or “stationary bandit” (Mancur Olson). Containing ISIS, if it means allowing it to hold its territory, would signal the end of Iraq and Syria as we know them.

On the other hand, defeating ISIS militarily would involve massive destruction and loss of life, but it would not end the problem of terrorism (indeed, it could very well intensify it). It is important to recall that the rise of ISIS is directly linked to the invasion of Iraq. The De-Baathification of the Iraqi government and disbanding of the Iraqi army provided many of the recruits and top leadership of ISIS.

So, what should Canada do? I think the Liberal government has, so far, got the balance about right. Our primary mission should be humanitarian. We should offer diplomatic good offices where possible. To be relevant we must be engaged in the military effort without a direct combat role.

Why not a direct combat role? Because we didn’t break it, so we don’t own it. Before the invasion of Iraq, Colin Powell advised Bush that “if you break it, you own it.” The US invasion broke it, and by leaving in 2011, President Obama allowed Iraq to slide into sectarian violence. Like it or not, the US owns this problem.

Prime Minister Harper would almost certainly have sent Canadian troops to participate in the invasion of Iraq in 2003, had he been prime minister then, and his policies while in office were aimed at reversing the Canadian aversion to involvement in international conflict. Yet he never made a compelling case for Canada’s role in bombing ISIS. His arguments were partisan, and motivated by a desire to change Canada’s role in the world in ways that did not enjoy broad support.

Moreover, the last election was a decisive moment for Canadian foreign and domestic policy. It would be impossible to separate the Harper government’s bombing of ISIS from its reluctance to admit refugees, its proposed barbarian practices snitch line, and its use of the niqab as a wedge issue. This is why Trudeau has insisted that admitting more refugees is about nation-building. It is an attempt to consolidate a commitment to multiculturalism. In this sense, under the Trudeau government, domestic sentiment and international policy have been, for now, re-aligned.

Democratic Reform: From Campaign Promise to Policy Change

The 2015 election ended a majority Conservative government that practiced disciplined message control in its communications, centralized decision-making, and a strategic approach to legislation and policymaking. Ordinary members of parliament found themselves under the control of party leaders, with little room for independent action. Moreover, the public impression was that Prime Minister Stephen Harper chose to govern single-mindedly on behalf of his electoral base, which represented slightly under 40% of the electorate. This alienated a large number of voters, for whom change in government became the top issue in the 2015 election.

Liberal Party leader Justin Trudeau promised a different style of leadership. More than the other leaders (except Elizabeth May, leader of the Green Party), Trudeau and his party accepted and responded to complaints about the dysfunction of the democratic system. Specifically, they promised no omnibus bills or prorogation; less centralized decision-making in the PMO; more free votes; more openness in parliament; more accountability in Question Period; a more effective Speaker of the House; election of committee chairs by secret ballot; more independence for the Parliamentary Budget Officer; a ban on government ads; more transparency in Supreme Court and other appointments; parliamentary oversight of CSIS, Canada’s spy agency; repeal of parts of Fair Elections Act; senate reform; and electoral reform.

Many of the changes outlined in the Liberal Party platform could be implemented unilaterally and without difficult negotiations. But caution is in order on the subject of political reform. Opposition parties tend to talk enthusiastically about democratic reform while in opposition, yet rarely deliver once in government. There is one democratic reform, in particular, in which perverse incentives may kick in—electoral reform.

The Liberal Party directly benefited from the first-past-the-post (FPTP) system. The 42nd parliament offers another example of what Peter H. Russell (2008: 5-6) calls a “false majority” government. Liberal candidates won less than 40% of the vote, yet they captured 54% of the seats. If seats were allocated in proportion to votes, the Liberals would have won something like 135 seats rather than 184. Other major parties would have seen increases, most notably the New Democratic Party (NDP) which would have garnered between 65-70 rather than 44 seats, and the Greens which would have secured approximately 13 seats instead of just May’s. A minority government or coalition would have been inevitable.

The Liberals also indirectly benefited from the FPTP system. The collapse of the NDP was partly an effect of the electoral system. Voters who wanted to remove Prime Minister Harper were prepared to rally behind the most promising agent of change. In the course of the campaign, as it became clear that the Liberal Party had the best shot at unseating the Conservatives, a bandwagon began to form behind the Trudeau Liberals.

Having benefitted from the status quo, will the Liberal Party deliver on the promise of electoral reform? A majority in parliament gives the Liberals the means to effect change, but paradoxically may diminish their motivation. That said, immediately after the election Trudeau re-committed himself to an all-party committee to review the electoral system. Making cross-­partisan use of committees is consistent with the larger goal of making parliament work more effectively. A challenge for such a committee, however, will be to reach agreement among parties that are likely to advocate reforms that benefit their own party’s narrower interests.

One solution would be to remove deliberation over the electoral system from the partisan arena. A citizens’ assembly, like the one created in British Columbia in 2004-05, could generate a reform proposal that would not be motivated by partisan gain. A referendum on such a proposal (with a 50% plus one threshold to prevent a minority from thwarting the will of the majority) could help ensure that the result of its deliberations could not simply be ignored. In the end, of course, any proposal would have to be approved by parliament and enjoy broad support in public opinion.

On balance, the result of the 2015 was positive for Canadian democracy. It brought an end to the term of a Prime Minister who often clashed with Canada’s democratic institutions and conventions, and elevated to high office a new leader committed to an ambitious agenda of democratic renewal. How far the Trudeau government will persist in this agenda is impossible to know in advance. Given the incentives and interests that confront any party as it moves from opposition to government, there are grounds for caution as well as optimism.


Russell, Peter H. Two Cheers for Minority Government: The Evolution of Canadian Parliamentary Democracy. Toronto: Edmond Montgomery Publications Ltd., 2008.

De Soto Vs. Piketty

Thomas Piketty’s Capital in the Twenty-First Century comes under fire from Hernando de Soto in his “The poor against Piketty.” De Soto is the author of The Mystery of Capital. Having devoted his life to extolling the virtues capital, he is not happy with Piketty’s argument that capitalism produces unsustainable inequality. According to De Soto, Piketty’s “political” thesis is “clearly wrong.” This he knows because of field research he has done on Arab revolutions. Right here, red flags should go up for the reader. If there is one thing that has been a constant in De Soto’s career it is his remarkably ability to say things that are absolutely of a piece with neoliberal economic orthodoxy while appearing to derive his findings from empirical research. His work on the informal economy in Peru, on indigenous peoples, and now on Arab revolutions always arrive at the same conclusions. These conclusions are presented as the findings of a Third World researcher, un-blinkered by Eurocentric categories. They just happen to align perfectly with the thinking of the World Bank and Chicago School economics.

So the main point De Soto wants to make is that the poor in countries like Egypt and Tunisia are really bustling entrepreneurs who have substantial capital (mainly land and real estate) even though these assets are not part of official accounts because they are in the informal sector. De Soto claims that Egyptian “workers” (scare quotes in original) own $360 billion in assets. This fact was discovered by his team of 120 Egyptian researchers working at the request of the Egyptian Minister of the Treasury. With his flair for the dramatic, De Soto (or his researchers) interviewed half of 37 self-immolators who (like Mohamed Bouazizi) burned themselves in protest against the expropriation of their capital, thereby sparking the Arab “revolutions.” For De Soto these revolutions are Industrial Revolutions—i.e. processes driven by entrepreneurs who are struggling for capital. In other words, violence is not caused by capitalism but by the oppressive deadweight of the state which does not allow informal capitalists to thrive. Thus, as expected, De Soto’s findings are exactly the same as in all his previous researches: capital is the solution not the problem, workers are actually entrepreneurs, development is held back by the inability of people to build and protect their capital.

De Soto seems utterly blind to the fact that there is a big difference between a small entrepreneur (read: worker) and a large entrepreneur (read: corporations) and that one of the most important differences is their relationship to the state. In many countries, both in the “West” and in the “Third World”, corporations (both national and increasingly multinational) have substantial structural power over states. A nice example from De Soto’s Peru is provided by UBC doctoral student Zarai Toledo, who recently visited Tambogrande, in the north of Peru just outside Piura. In 2002 Tambogrande held a popular consultation (referendum) on whether to accept a proposal by the Canadian Manhattan Minerals Corporation to start a gold mine in the area. The result was an overwhelming 98 percent “No.” The Peruvian government, after years of resistance, decided to cancel the project (leading to an unsuccessful lawsuit by Manhattan). Since then, 70 referenda on extractive projects have been held, involving 700,000 people from Guatemala to Argentina.

But the interesting thing about Toledo’s analysis is that she looks at what has happened in Tambogrande since the referendum. It turns out that Tambogrande is doing very poorly by comparison with the rest of the region. Half the children are anemic, water is scarce, dengue has spread, and young people are leaving in search of work. Predictably, De Soto argues that the rejection of formal mining has led to informal mining, which shows that people everywhere want to be entrepreneurs as long as they benefit directly. In fact, there is not a lot of informal mining in Tambogrande—most of it is happening elsewhere in the region (Suyo, Sapillica, Lomas and Paimas). Toledo shows that the real problem facing Tambogrande is neglect by the state. Since the Manhattan project was rejected, local authorities have been unable to extract resources from the central government, which has no interest in promoting the local economies that are not associated with extraction. Tambogrande remains heavily dependent on agriculture, which remains the backbone of the economy. Informal mining attracts migrant workers in certain periods when demand for agricultural labor is low. Just as in the past, when state policy focused on import substitution industrialization and neglected agriculture, today agriculture is neglected by a state that is single-mindedly interested in promoting extraction.

Capitalism generates inequality both directly (pace Piketty) and indirectly (through the structural power of capital over the state). De Soto’s utopia of competitive markets in which everyone is an entrepreneur and everyone can get ahead is just that. A neoliberal utopia.

Reflections on Joseph Heath’s “The Forever Campaign”

The best thing in the paper today is Joseph Heath’s “The Forever Campaign.” Heath makes the case that competition, left unchecked, can undermine everything from sports to politics. It is a great argument, and I like the analogy with sport. As football gets more and more competitive, the risks of playing the game outweigh the benefits. “Left unchecked, competition will escalate over time to the point where it becomes all-consuming. Unless carefully controlled, it may begin to undermine itself, to defeat its own purpose.” Or rather, purposes, because a game always has many purposes, including having fun, entertaining people, testing abilities, creating community and esprit de corps. Playing as if all that mattered was winning undermines the activity. And so it is with politics.

Heath points out that elections are competitions: “The basic rule is simple: if you want to run the show, you have to go out and get more votes than your opponents.” But when winning election becomes the only goal of politicians the activity of politics is undermined or corrupted. After all, democracy is not just about elections, it is also about governing. Yet we cannot govern democratically when every aspect of politics becomes about winning election. Hence the “forever campaign.” Harper thinks nothing of calling an 11-week election campaign. After all, he never stops campaigning. And Heath is right: the risk to democracy is not a breakdown and authoritarian rule. The risk is that the value of competition—viz. the alternation in power and the accountability and good government this encourages—is eroded when it is not “carefully managed” to ensure this result.

In the name of competition the US Supreme Court has knocked down all the rules carefully put in place to limit the role of money in politics. The result is the obscenity we currently observe in US campaigns. And we’re not too far behind. More and more, parties are becoming PR vehicles for candidates and candidates are devoting more and more of their time to fundraising. Happily, we have a system of public support for campaigns, but I fear that the expense of the federal election this year will test public patience with this system. But if we abandon it, we will win up with private money controlling everything.

Among the problems Heath sees with competition are its wasteful and self-defeating quality. Like an arms race, competition ratchets up the pressure, leaving everyone worse off. More competition does not create more winners, just more expense. Moreover, and this is critical, the activity of politics is undermined. More time is spend fundraising, the airwaves are saturated with attack ads, and politics becomes an activity dominated by consultants, pollsters, PR experts, and career politicians. Not surprisingly, the public feels left out. Worse still, governance suffers. Heath notes that Harper has turned governing into campaigning: bundling potentially unpopular legislation into omnibus bills to avoid debate and then pandering to their base with laws calculated to shore up public support. And, I would add, often accompanied by fundraising appeals.

I would add to Heath’s excellent analysis that part of the problem is how we think about democracy itself. “We often forget,” he says, “democracy is a staged competition designed to achieve a narrow purpose, which is to produce good government.” Democracy is more than elections, about that we all agree. But it is also more than competition. Deliberative democrats have long argued that democracy is also a system that forces those in power to defend their actions with reasons, and to do so in public in the face of criticism. There is a dimension of elections that is highly cooperative. It provides an opportunity—indeed it compels us—to see the issues of the day from a range of perspectives. The goal is not just to find a majority opinion, but also to allow us to arrive a collective judgments through a process in which everyone is answerable to criticism in the public sphere. This process can be degraded, as when candidates focus on one another’s appearance (“nice hair” mocks a Conservative ad aimed at Trudeau, which is hardly an informative statement). But in the debate on Thursday we saw a pretty high level discussion of the current government’s economic, environmental, and foreign policy record.

If democracy is about producing good government, it must enable us to construct notions of the good in the process. Is the exploitation of the tar sands a good? Is bombing ISIS a good? Is child care a good? The democratic process is about both the collaborative search for answers to such questions, and the competitive struggle to decide which answer should guide policy and law.

Scenarios for a Hung Parliament in October

The Globe and Mail has published a piece by John Ibbitson on what a hung parliament in Canada might look like given the recent polls showing a three-way race in the federal election this fall. Mr. Ibbitson presented a group of academics with five scenarios to discuss.  My own responses are presented at length at the end.

John Ibbitson

Five ways a hung Parliament could swing in October

Imagine this: A cold grey dawn greets the country on the morning of Oct. 20. After counts that go late into the night, it is clear that the general election of the day before has produced a hung Parliament, with no party able to command a majority of seats in the House of Commons. It turns out that the three-way race among the Conservatives, New Democrats and Liberals that emerged in late May, five months before the election, continued right up to voting day.

So what happens next?

Canadians have plenty of experience with minority governments, including two led by Stephen Harper and one by his predecessor, Paul Martin. But in 2008, the opposition parties tried unsuccessfully to create a coalition in order to unseat the Conservatives. After 10 years of Conservative government, voters opposed to Stephen Harper will be pushing the other parties to do whatever it takes to ensure he is no longer prime minister. And a genuine three-way race? We’ve never had anything like that before.

But who would replace Mr. Harper: Justin Trudeau or Thomas Mulcair? Would there be a conventional minority, or a coalition in which both parties are represented in cabinet? And would the two leaders agree to co-operate, even if the Conservatives win the most seats? The possibilities are endless.

We crafted five election-day scenarios, and consulted political scientists from across Canada on what they felt would be the most likely outcome.

Seats in House of Commons: 338

Number needed for majority: 170

What if the Conservatives have the most seats?

(Andrew Vaughan/The Canadian Press)


In the past, such an outcome would produce a Conservative minority government, which would govern on a bill-by-bill basis with the support of at least one other major party. Since the Second World War, John Diefenbaker, Lester Pearson, Pierre Trudeau, Joe Clark, Paul Martin and Mr. Harper have all led minority governments.

But as Cristine de Clercy of Western University points out, “the government of the day forms on the floor of the Commons, rather than being ‘selected’ by voters.” Given the deep animosity that many non-Conservative voters feel toward Mr. Harper, Associate Professor de Clercy predicts, “absolutely the Liberals would try to govern with the minority support of the NDP.”

She does not believe the two parties would unite in a coalition government as the U.K.’s Conservatives and Liberals Democrats did in 2010. (The result was a majority Conservative government in the May election, with the Lib Dems virtually eliminated from the House.)

Richard Johnston, of the University of British Columbia, believes that to make a Liberal minority government “look like anything other than a naked power grab they would have to have an agreement” with the NDP on a set of policies and priorities. Bob Rae, then leader of the Ontario NDP, reached such an accord with David Peterson’s second-place Liberals in 1985. The accord provided two years of stable Liberal minority government.

While there might be no formal coalition, Prof. Johnston believes Mr. Mulcair would only grant confidence to a Liberal government led by Mr. Trudeau in exchange for a series of commitments, such as enacting the NDP’s proposed national $15-a-day daycare plan.

Allen Mills of the University of Winnipeg says that, if the Conservatives won the most seats, Mr. Harper would tell Governor-General David Johnston that he intended to form a government and that he would meet the House. If the Liberals and NDP combined to defeat the government on its Speech from the Throne, then “the Governor-General would have an obligation to see if the Liberals and NDP would form a formal or informal coalition,” he says.

The University of Alberta’s Julián Castro-Rea, however, observes that Mr. Harper has a proven record of asserting iron control over his caucus, and of co-opting opposition parties on a vote-by-vote basis. “The Conservatives will never let the Liberals or the NDP form an alternative government, and for that matter these parties would not even try,” Associate Professor Castro-Rea says. Both opposition parties would instead conclude that bringing down a Conservative minority government before it has chance to govern would render them deeply unpopular.


Maxwell Cameron at UBC believes that a second-place finish for the NDP could be good news for the Conservatives. “The Liberals would face a dilemma,” he says. “It would be one thing to bring down the government in a motion of non-confidence in order to form a minority government, and another to do it so the NDP could form government or to govern in coalition with the Liberals.”

The words “Prime Minister Thomas Mulcair” could be fatal to Mr. Trudeau’s leadership of the Liberals, and to the party itself. Under the circumstances, Prof. Cameron believes that the Liberals might prefer to prop up the Conservatives for 18 to 24 months, before bringing down the government and forcing an election at a time of the Liberals’ choosing.

For Associate Professor DeClercy, however, “I fully expect the NDP would aim to govern with minority Liberal support.” The imperative among progressives to end Mr. Harper’s reign as prime minister would, she believes, trump all other considerations.


For Daniel Weinstock of McGill University, three variables determine the outcome of a hung Parliament: How far ahead the leading party is; how close the second and third parties are to each other in terms of seats; and how close the second and third parties are to each other ideologically.

Prof. Weinstock believes that constitutional convention requires the Governor-General to ask any party with a large plurality of seats to form a government. However, “I don’t think that the G-G would be bound in the same way if the three parties are very close to one another, both in numbers of seats and in share of the popular vote,” he maintains.

This is crucial. When Stéphane Dion and Jack Layton tried to oust the Conservatives with the support of the Bloc Québécois in 2008, the proposed coalition was deeply unpopular with voters, who couldn’t believe that Mr. Dion was about to become prime minister even though he’d been thumped in the election. The 1985 Liberal/NDP accord in Ontario, by contrast, was popular in part because the Liberals had come very close to winning more seats than the Conservatives. It appears that, in the minds of voters at least, the closer the second-place party is to the first-place party, the more legitimate it becomes as an alternative government.

If the result is close on Oct. 19, and the opposition parties combined to defeat the Conservative government on its Throne Speech, then “there would be even more of an obligation on the Governor-General to entertain a coalition government” under the leadership of whichever party had the second-highest number of seats, Prof. Mills believes.

Not everyone agrees. “Stephen Harper’s vicious attacks in the fall of 2008 targeting the proposed Liberal-NDP coalition, supported by the Bloc Québécois, gave coalitions a bad press, and a whiff of illegitimacy and violation of democratic standards,” maintains Associate Professor Castro-Rea. “The parties, and arguably the public, are not used to shared governments; they prefer the winner-takes-all approach. So whatever the results of the next federal election are, I would exclude the possibility of a formal coalition of any kind.”

In any case, he believes that the Conservatives would form a government no matter how narrow their plurality, by dividing and conquering the opposition.

What if the Liberals have the most seats?

(Geoff Robins for The Globe and Mail)


“Liberal minority government,” predicts Jennifer Smith, professor emeritus at Dalhousie University in Halifax. If the Liberals win more seats than the Conservatives, they are certain to form a government, if only because, as Prof. Weinstock puts it, “it seems unlikely that the Conservatives and the NDP would be able to collaborate to either unseat the government or to participate in a coalition.”

This is why, for Prof. Weinstock, the ideologically compatability of the opposition parties, or the lack of it, is so important.

Would the Liberals seek to form a coalition with the NDP, in order to ensure four years of stable government? Mr. Trudeau has ruled that out, and in any case, most of those polled agreed that the NDP would be reluctant to enter such a coalition. “Coalitions are stinko in Canada,” says Prof. Smith. There hasn’t been one since the Unionist government of Conservatives and breakaway Liberals under Robert Borden in 1917, she points out, and “the recent coalition attempt in 2008 wound up being subject to ridicule.” Not only did the British Liberal Democrats suffer badly after their coalition with the Conservatives, but Bob Rae’s NDP suffered after its two-year accord with the Liberals, returning as a weakened opposition facing Mr. Peterson’s majority Liberal government.

But, as mentioned in the first scenario, the NDP might require a Liberal government to enact certain NDP priorities in exchange for any vote of confidence.

What if the NDP have the most seats?

(Chris Wattie/Reuters)


This is a scenario few had considered until very recently. But with Rachel Notley’s win in Alberta, with the NDP trending upward in the polls, and with voters in those polls identifying Mr. Mulcair as a leader they like and trust, an NDP plurality is now increasingly possible.

In which case, what would Justin Trudeau do? He would be under great pressure to support an NDP minority government, or perhaps even to discuss the possibility of coalition, in order to keep the Conservatives from power. But as we have previously observed, if the federal NDP forms a government, the Liberals’ very existence could be at stake.

Prof. Cameron believes that “the most natural outcome would be an NDP minority government. The Liberals would avoid entering into a coalition because minor coalition partners tend not to fare well in subsequent elections. They can position themselves to ensure the NDP governs ‘responsibly’ and wait for the right moment to go back to the voters.”

Prof. Smith agrees. “The Liberal versus NDP rivalry is too intense at this point to make for promising coalition talks. Plus, the NDP would have the wind at its back. Why squander momentum to form a coalition government, itself not a Canadian tradition?

Associate Professor Castro-Rea speculates that “perhaps the NDP leader would be forced to include one or two Liberals in the Cabinet. If the deal fails, the NDP will try to govern as a minority, but the experiment will not last long.” Voters could be back at the polls within a year.

Prof. Weinstock believes that in such a situation Mr. Harper would certainly step down, and then “the joker is whether he is replaced by a leader more – rather than less – ideologically attuned to the Liberals.” A moderate Conservative leader could co-operate with the Liberals in bringing down an NDP government. But facing a Stephen Harper 2.0, the Liberals would have little choice but to prop up the NDP.

Prof. Mills wonders whether the Liberals might back the Conservatives in any case, rather than see the NDP take power. “Justin might be so pissed off with Tom that he will support Steve!”

As we said, the possibilities are endless.

Graphics by Trish McAlaster/The Globe and Mail


See my complete response to Mr. Ibbitson:


The first point to make about the legitimacy of a Liberal government is an obvious one, but not well understood by many voters.  In a parliamentary system, governments are formed by the party that commands the confidence of the House; elections are not necessarily won by the party with the most votes. The Conservatives would be likely to insist that the Liberals and the NDP are stealing the election and it is undemocratic to form a government without the largest party. Such claims are specious, but likely to prove persuasive to some voters. If the Liberals decide to form a minority government, it will be critical to avoid the mistakes that led to prorogation in 2009: they must call a vote of non-confidence at the first opportunity.

Trudeau has indicated that he will not enter a coalition with the NDP (“I’m unequivocally opposed to any sort of coalition”), so the likely outcome would be a minority government. The Liberals with NDP support would have to persuade voters that they are capable of representing a broader and more stable majority in government than the Conservatives could offer. The NDP would certainly prefer a Liberal minority over a Conservative one, and so would likely play along.

The difference between SCENARIO ONE and TWO is that there is especially strong “anyone but Harper” sentiment within the NDP, so there is little doubt that the NDP would seek Liberal support (either supply and confidence or a coalition) to bring down the Conservatives.  Mulcair has expressed willingness to entertain a coalition. The Liberals, however, face a dilemma. It would be one thing to bring down the government in a motion of non-confidence in order to form a minority government, and another to do it so the NDP could form government or to govern in coalition with the NDP. The experience of the LibDems in the UK is a cautionary tale for minor coalition players. The advantage of coalition over minority is mainly sharing in the perks of power; the risk is sharing responsibility for political mistakes.

The Liberals could decide they are neither ready to form government under these circumstances nor prepared to accept the blame for creating the first NDP federal government. Suppose Harper steps down and a new interim leader is chosen. Under these circumstances, the Liberals might decide to give stability to a Conservative government for 12 to 18 months and then go back to the electorate at a time of their choosing.

Militating against Liberal support for a continuation of Conservative government, however, is both the unhappy experience of 2006-2011 that Richard Johnston mentions, and the fact that the Conservatives are unattractive dance partners.  To a degree unseen previously in Canada, the Conservatives have governed with an exclusive concern for their base. As a result, parliament has become an increasingly dysfunctional institution. Between omnibus bills, repeated use of closure, stifling of committees, the refusal to accept amendments to bills, and constant attacks on the other parties, the Conservatives have made themselves toxic beyond their base.

SCENARIO THREE. A narrower lead takes the sting out of the argument that it is undemocratic for the “losers” to bring down the “winner.” It also makes it more plausible that Harper would resign (though the experience of 2009 could persuade him to wait and see if a Liberal-NDP agreement sticks).

SCENARIO FOUR. There would be an expectation that the Liberals would be invited to form government, without the (specious) legitimacy issues arising in the above scenarios. Again, Trudeau has said he would not form a coalition and I think he would hold to that in this scenario. Ironically, the “anyone but Harper” sentiment in the NDP would make them likely to support the Liberals, which weakens their leverage in terms of demanding perks and policies in return for support. That said, they might seek agreement on some core policy issues (e.g. electoral reform).

SCENARIO FIVE.  Here, again, I think the most natural outcome would be an NDP minority government. The Liberals would avoid entering into a coalition because minor coalition partners tend not to fare well in subsequent elections. They can position themselves to ensure the NDP governs responsibly and wait for the right moment to go back to the voters.

— Max Cameron

Do we need a school for politicians?

If you want to be a doctor, lawyer, teacher, nurse, firefighter, entrepreneur, soldier, accountant, or engineer there are schools that provide the knowledge and skills necessary to serve in these professions. But if you want to go into politics, no practical training is necessary. None is available.

This is puzzling. Why do we turn over the management of the biggest and most complex enterprises in our society—municipal, provincial, and federal governments—to amateurs?

Candidates increasingly refer to elections as “job interviews.” But a study by Samara found that few politicians could offer a coherent description for the work they do.

We think it is time for politicians to raise their game. This year, UBC’s Centre for the Study of Democratic Institutions will run its third annual Summer Institute for Future Legislators. It is a program that draws on the expertise of wise former leaders to provide aspiring politicos with the knowledge and skills they need to be better practitioners. We call it “boot camp for politicians.”

Our political wannabes learn about parliamentary practices and procedures, lawmaking and representation, relationships and ethics. They have the chance to hone their skills through role playing and simulations. The highlight is a model parliament session conducted in the BC legislature. Having practiced the art of the legislator, they have personal knowledge of the job they seek.

Some past participants have decided that the political life is not for them. It is better to realize this before entering politics. Others have seen how hard politics is and have become even more enthusiastic about the challenge.

Is it elitist to train people for politics? On the contrary, our goal is to admit anyone who is interested, regardless of their background or qualifications. The only criteria for admission is that applicants must have a desire for public service in elective office.

Our main challenge is how to teach people to be good politicians. It is true that politics is learned on the job. As a practical skill, it requires trial and error. Since there are harsh penalties for making mistakes in public life—just ask Mike Duffy or Pamela Wallin—it may be wise to hone the practice of politics in an environment in which experimentation is possible.

When aspiring politicians are given a context for learning experientially, among peers, and with inspiring mentors drawn from across the partisan spectrum, they can explore different styles and approaches.

They can replicate existing practices—falling back on party discipline, reading from talking points, and refusing to answer questions—or they can explore ways of working across partisan lines, building coalitions, and fostering meaningful dialogue.

They can change the rules to enable more free votes. They can run question period differently. They can experiment with the confidence convention. In short, they have a chance to think about what parliament was designed to do, and to imagine how it might work in the future.

We want our practitioners to imagine models of what democracy could be, not copy what it is. Better politicians means a better democracy. If we want to change politics, we have to change the practice. And to change the practice, we have to improve the practitioners.

Bill C-51 Weakens the Rule of Law

The following remarks were delivered in a panel discussion on Anti-Terror Bill,  C-51, organized by the Institute for the Humanities, Simon Fraser University on 3/24/2015.

Video of the entire event is available here.

Bill C-51 threatens the foundation of our legal system. It weakens the rule of law and the separation of powers which underpins our democracy. It will make our political institutions not only less democratic, and less robust as guarantors of our rights and freedoms, but also weaker—less capable of responding the threats we face and less capable of mobilizing collective action toward desired ends.

Our political system is based on the rule of law. That means nobody is above the law, the actions of all must comply with the law, and no person should be the judge of his or her own cause. Whenever the rules are made, implemented, and enforced by the same person or group of people, we find ourselves in a situation that is the very definition of tyranny.

800 years ago the tyrant King John was forced to sign the Magna Carta, which affirmed “No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, expect by the lawful judgment of his equals or by the law of the land.”

Bill C-51 amends the Canadian Security Intelligence Act to allow CSIS to respond to threats to “the security of Canada” by means of measures that contravene rights and freedoms guaranteed in the Canadian Charter of Rights and Freedoms. It also allows them to break Canadian law. That is, this is a law that explicitly authorizes law-breaking and violations of the Charter by our intelligence service.

What would the barons at Runnymede have thought of the idea of a judge-issued warrant to “enter any place or open or obtain access to any thing,” “remove or make copies or record any information, record or document,” or “install, maintain or remove any thing”? Such sweeping powers were precisely their target.

Such abrogation of the law or the constitution are to be given a fig leaf of legality, which only makes matters more obnoxious. Law-breaking is to be authorized by a warrant from a judge. Except that a judge may not authorize specific illegal activities that are explicitly exempted: CSIS shall not cause death or bodily harm, obstruct or pervert the course of justice, or “violate the sexual integrity of an individual.” What is wrong with this?

We cannot put a judge in a position of saying “the law says you must do X, but notwithstanding that you have my permission to do Y.” Permission on what basis? When a judge issues a warrant it is to guarantee—that is the origin of the word warrant—guarantee the legality of the actions of the police. It is not to find exceptions. It is not to exercise discretion with respect to what is the law. As Paul Ricoeur puts is: “The most fundamental limitation juridical argumentation meets has to do with the fact that the judge is not a legislator, that he applies the law, that is, that he incorporates into his arguments the law in effect.” It is the job of the judge, strictly, to say what is the law—neither more nor less. The very idea that a judge might counsel an illegal act is inimical to our rule of law tradition. It strikes at the very heart of our system of justice.

These provisions undermine the principle of the hierarchy of laws. This principle requires that when a higher law conflicts with a lower law, the higher law shall prevail. Constitutional guarantees cannot be trumped by statutory law; statutory laws cannot be abrogated by municipal ordinances; municipal ordinances cannot be negated by contracts between individuals.

Bill C-51 uses statutory law to interpret which guarantees contained in the Charter of Rights and Freedoms can or cannot be abrogated by a judge. It essentially creates two classes of constitutional guarantees—those which can be abrogated by a judge and those which cannot, and it does so in legislation that ranks below the constitution. Who gave the parliament of Canada the right to reinterpret our constitution and to decide that there are two tiers of guarantees?

To reinterpret the Charter through ordinary legislation makes nonsense of our entire legal system and our constitution. It makes nonsense of the separation of powers.

As Roach & Forcese have said: “For the first time, judges are being asked to bless in advance a violation of our Charter rights, in a secret hearing, not subject to appeal, and with only the government side represented.” The Canadian Bar Association says C-51 “brings the entire Charter into risk, and is unprecedented.” The BC Civil Liberties Association claims: “The role of the court in our constitutional system is to ensure that both the executive and the legislature act in accordance with the law. To ask the court to authorize constitutional violations is simply offensive to the rule of law…”

The separation of powers requires that legislatures legislate, judges judge, and executives execute policy. There is a purpose to organizing the powers of the state in this manner. It is because no law, no matter how carefully written, is unambiguous or free from multiple interpretations.

Take a term like “terrorism.” What does it mean? We could argue all night about the intrinsic meaning of the word, but the reality is that law demands that we take general rules and apply them to particular cases.

To get the best results, you don’t write sweeping legislation and then leave it up to administrative agencies to decide how to best implement the law. You need to build in checks and balances, not to hinder the functioning of government as a whole, but to guarantee its consistency by ensuring that actions by government officials are deliberate, implemented effectively, and enforced impartially.

And the best way to accomplish this is by creating branches of government that are specialized in distinctive activities and that work together to generate authoritative interpretations that guide collective action in accordance with the public interest.

The sad truth is that our parliament has been emasculated to such a degree that it is no longer a meaningful deliberative body. We have omnibus bills that are so complex and comprehensive that their effects can hardly be understood by the MPs who pass them. These bills are rushed through committees that no longer do meaningful work, passed without amendments, following closure to cut off debate.

Among the weaknesses of our parliamentary system is the lack of parliamentary oversight of the intelligence service. Such oversight is absolutely necessary to ensure that the implementation and enforcement of the law is compatible with the rule of law and the public interest.

Many people will object to Bill C-51 because they fear it will excessively enhance state power at the expense of the citizen. That is a real danger. My objection, however, is to the way that this Bill weakens our political institutions.

It will do this not only by making them vulnerable to the abuse of power and to the loss of legitimacy that this will entail.

It will also do so by making it harder to mobilize the resources in our society that enable effective collective action in response to threats. It will create confusion over what intelligence agencies can and cannot do, what constitutes legitimate dissent, the role of the courts, and deliberative quality of our legislative institutions.

Elements of Bill C-51, if passed, must be disobeyed. By whom? By our courts. I expect that this legislation will set up a major conflict between the executive and judicial branches of government. The courts must strike down this legislation as inimical to the Charter.

Canada cannot and should not mark the 800th anniversary of the Magna Carta by tossing key principles from it in the dust bin.