On April 11, 2011, Ontario Superior Court Justice D.J. Taliano issued his decision in the case of R. v. Mernagh. Justice Taliano declared that the sections of Canada’s Controlled Drugs and Substances Act prohibiting possession (section 4) or cultivation (section 7) are unconstitutional, hence non-existent in law, with respect to cannabis. He stayed (i.e., cancelled) the cultivation charge against Mernagh, whom he found to be a patient benefiting from the use of cannabis as medicine. For reasons that I will explain below, it would appear cannabis prohibition will soon be history in Canada.

Before getting into tomorrow’s history, let’s look at a bit of current history. In 2000, in the case of R. v. Parker, Ontario’s Court of Appeal concluded that the government had no power to make a law prohibiting patients from accessing, cultivating, or possessing the cannabis they use as medicine. Until that decision, the law had made no distinction between patients and non-patients. The Court of Appeal in that case gave the government one year to change the law so as to make cannabis prohibitions apply only to non-patients. In response, the government introduced the Marihuana Medical Access Regulations (“MMARs“); regulations purportedly designed to ensure that patients, but nobody else, could access, cultivate, and possess cannabis.

The MMARs essentially require patients to get a physician to sign a declaration to the effect that the person is a patient who should be using cannabis to treat his medical condition. As a result, the regulations put into the hands of physicians the power to identify which patients will or will not get exempted from Canada’s cannabis prohibition laws.

In R. v. Mernagh, Mernagh argued that physicians have widely refused to accept the role of cannabis “gatekeeper”, with the effect that patients lack the exemptions they need to obtain cannabis legally. Justice Taliano agreed. He found as a fact that the overwhelming majority of physicians were refusing to sign the MMAR’s cannabis declarations for their patients. As evidence, Justice Taliano detailed the experiences of over 20 patients from across Canada who have run up against a medical profession unwilling to sign the paperwork necessary for the patients to obtain exemptions from prosecution under the Controlled Drugs and Substances Act. He detailed numerous reports from physician organizations stating that member physicians should not provide patients with legal access to cannabis. The only evidence available concerning the percentage of physicians participating in the government’s exemption program for patients came from 2001 data showing “only .012% of all of the doctors practising in Canada that year signed a declaration for a patient”.

Having found as a fact that the MMARs are failing to provide patients with the legal exemptions they need from Canada’s cannabis prohibition laws, Justice Taliano concluded:

Accordingly, the MMAR must be struck in their entirety. In the result, there is no legislative scheme in place to provide an exemption from the prohibitions contained in sections 4 and 7 of the CDSA. This brings us back to the situation faced by the court in Parker, in which case, those sections would also have to be declared of no force and effect as required by the court in Parker.

Justice Taliano suspended the effect of his decision until July 11, 2011, so that Canada’s Parliament and government would have three months to try and come up with another set of laws to give patients better access to cannabis. However, Canada is in the midst of a federal election, and Parliament is not expected to be sitting again before July 11, 2011. It is rather unlikely that any attempt to change the law will be made prior to July 11, 2011.

Given that situation, it should not be all that surprising that the Crown has decided to appeal Justice Taliano’s decision to Ontario’s Court of Appeal. The effect of commencing the appeal is that, until Ontario’s Court of Appeal renders its decision, it is as though Justice Taliano’s decision had not been rendered at all. Until the Court of Appeal renders its decision, patients like Mernagh, who cannot find a physician to sign their declarations, can and probably will be charged with possession or cultivation of cannabis under sections 4 and 7 of the Controlled Drugs and Substances Act.

That said, it would appear that the Crown’s appeal has little chance of success. An appeal is not a re-trial of a case. The law limits the powers of an appeal court. Specifically, there are rules about whether or not an appeal court can overrule a trial judge’s decision.

One set of appeal rules applies to “findings of fact”, and another set of rules applies to “findings of law”. “Findings of fact” are the conclusions the judge makes about the facts of reality. For example: “the physicians of Canada have massively boycotted the MMAR and their overwhelming refusal to participate in the medicinal marihuana program completely undermines the effectiveness of the program” is a finding of fact made by Justice Taliano in the Mernagh case. So is this: “…under the current legislative scheme, legal access to medicinal marihuana is practically unattainable for those [patients] who desperately need it”. Facts are proven with other facts, called “evidence”. The following passage includes two pieces of evidence that doctors are refusing to assist patients to obtain a licence to cultivate and possess cannabis for medicinal purposes:

[A patient who was a witness in the R. v. Mernagh case] has asked two neurologists to support her marihuana use by signing the Health Canada declaration. Both have refused. One of these doctors told her he did not sign for anyone; the other held her hands over her ears and sang “la, la, la, la, I can’t hear you” as a response to her request.

In the case of Housen v. Nikolaisen [2002] 2 S.C.R. 235, the Supreme Court of Canada stated that:

The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen.

That means that if a given finding of fact by the trial judge cannot be plainly seen to be erroneous, the appeal court cannot interfere with that finding of fact.

In R. v. Mernagh, the facts and evidence were clearly on Mernagh’s side. The crown tendered no evidence concerning the percentage of physicians that will agree or that routinely refuse to sign declarations. In the absence of evidence to the contrary, it is simply ridiculous to expect that an appeal court could “plainly see” Justice Taliano’s key finding of fact – that the MMARs fail to provide patients with access legal access to cannabis – to be erroneous.

If the crown’s appeal is to succeed, the crown will have to show that one or more of Justice Taliano’s “findings of law” were such that the court has authority to interfere with his findings. The test for changing findings of law was explained by the Supreme Court of Canada as follows:

The standard of review on pure questions of law is one of correctness, and an appellate court is thus free to replace the opinion of the trial judge with its own.

In other words, if Justice Taliano misunderstood, misrepresented, or misapplied the law, then the appeal court is free to apply the correct law to Justice Taliano’s findings of fact. If, after applying the law correctly, the appeal court comes to a different conclusion (using Justice Taliano’s findings of fact), then it can change the outcome of the case. For example, it could find Mernagh guilty of cultivation, or could find the government’s enforcement of possession and cultivation laws to be consistent with Canada’s constitution.

It is doubtful that Justice Taliano erred with respect to the law. Having well detailed the fact that the MMARs fail, in practice, to provide patients with legal access to cannabis, we are indeed in the situation that the Court of Appeal already has said, in R. v. Parker, not to be constitutionally viable.

It is even more doubtful that the government/Parliament will be able to create regulations or statutory amendments that remedy the situation. The central problem is that the courts have said the power of the government with respect to non-patients differs from its power with respect to patients. Non-patients can be fined or imprisoned for possessing or cultivating cannabis, but – according to the courts – the constitution gives the government no authority to make or enforce such a law against patients who use cannabis as medicine. In order for a patient vs. non-patient distinction to be enforceable, there must be a credible way to identify who is a patient using cannabis as medicine, and who is not. Nobody except a physician is qualified to make such an identification, yet physicians are refusing to make the identifications.

There are both legal and practical barriers to creating a legal framework that would encourage physicians to change their minds and to identify who is and who is not a patient. With respect to legal barriers, physicians rightly fear being sued by patients who might eventually claim that they never should have been prescribed cannabis. A law could be passed to deny patients the right to sue physicians for prescribing cannabis, but there are at least two major problems with introducing such a law. First, there may well be cases in which a physician’s prescription of cannabis amounts to malpractice; in which prescribing cannabis to a given person led to a forseeable, avoidable loss for which a patient should be able to sue for compensation; in which a law against suing the physican would be unjust in some circumstances. Second, a law prohibiting a patient from suing a physican for prescribing cannabis is a law that arguably falls under the exclusive jurisdiction of the Provincial Legislatures: the federal government arguably has no constitutional authority to make a law that prevents patients from suing their physicians over the negligent prescription of cannabis. In other words, even were giving physicians immunity a way to fix the constitutional problem, the federal government lacks the power to create the fix.

The practical barriers include the fact that potential lawsuits are not the only thing causing physicians to boycott the signing of cannabis declarations under the MMARs. As Justice Taliano explained, “…doctor[s] are obligated by the ethics of their profession not to do anything to harm their patient, and therefore cannot knowingly approve the use of a product whose benefits and risks have not been verified by clinical studies.” Even were doctors immune from cannabis-related lawsuits, it is likely that they would continue to boycott signing the cannabis declarations because they apparently believe, in the circumstances, that prescribing cannabis to patients is unethical, given what they believe to be inadequate research into the effects of smoking cannabis.

It appears unlikely that any appeal or any change in the law will have the effect of giving patients legal access to cannabis so long as non-patients are prohibited from possessing, cultivating, or buying/selling it. If it is unconstitutional to require patients to prove themselves patients in circumstances where such proof is unobtainable, then proof of patienthood cannot be a pre-condition for legal possession or cultivation. And, if proof of patienthood is not a pre-condition for legal possession or cultivation, everyone – in practice – can possess and cultivate without being able to prove themselves to be patients. In other words, so long as Canada’s physicians remain committed to shrugging-off any attempt to burden them with the role of distinguishing patients from non-patients, the government will not be able to create a law that prohibits non-patients from possessing or cultivating cannabis. So long as Atlas Shrugs, he – and all of the rest of us – will be free to toke.

Proponents of the collectivist status quo do not like a recent decision that appears to have been made by the Prime Minister of Canada. As a result, some of them are now telling us that this can mean only one thing: the PM is a tyrant, democracy is under attack, and Canada is being turned into a totalitarian state. Given the gravity of their remarks, the reader will be forgiven if he is baffled upon discovering that the decision in question was the decision to eliminate penalties for choosing not to complete the long form of the 2011 census. Given the form and content of a column by Ottawa University law professor Errol Mendes in today’s Ottawa Citizen newspaper, we are apparently meant to conclude that an elected officials’ failure to follow, or to release to the public, the advice of an unelected public servant is tantamount both to an assault on democracy and to a drift into totalitarianism. Such a conclusion is utter nonsense and, when written by a law professor, for public consumption, it is worse than nonsense.

Before getting on with the substance of Mendes’ column, let me set the context by quoting from Episode 6 of the brilliant BBC educational comedy, “Yes Minister”; an episode titled “The Right to Know”. In this first scene, the equivalent of a Canadian deputy minister, by the name of Humphrey, is upset and is speaking with the relatively new and naive Minister’s secretary, Bernard (who is, like Humphrey, a part of the public service).

Humphrey: Would you say that the Minister’s starting to run the department?

Bernard: Oh, well, yes indeed. Actually, things are going pretty well, actually.

Humphrey: No, Bernard. When a minister actually starts to run his department, things are not ‘going pretty well actually’. They’re going pretty badly.

Bernard: But actually…I mean, in fact, isn’t it the minister’s job to run the department?

Humphrey: No, Bernard, it’s our job. Or, to be more precise, it is my job, for which I’ve had 25 years experience and training. Don’t you realize what would happen if we allowed the Minster to run the department?

Bernard: No. What?

Humphrey: Well, in the first place, there would be chaos, naturally, and in the second – which is much more serious – there wold be innovations!

Bernard: Oh.

Humphrey: Changes, Bernard!

Bernhard: Ah.

Humphrey: Public debate! Outside scrutiny!!

Bernard: Gosh.

Humphrey: Is that what you want?!

Bernard: Good heavens, no! I mean, but what should he do then?

Humphrey: Bernard, a minister has three functions. First, as an advocate: making the department’s actions seem plausible to Parliament and the public. He is our public relations man. Second, he is our man in Westminster, steering our legislation through Parliament. And, third, he is our bread winner. He has to fight, in cabinet, for the money we need to run our department. But he is not here to review departmental procedures with principals and assistant secretaries…

Humphrey later confronts the Minister, Jim Hacker:

Humphrey: You are not here to run this department.

Hacker: I beg your pardon?

Humphrey:You are not here to run this department.

Hacker: I think I am. The people think I am too!

Humphrey: With respect Minister, you are…they are wrong.

Hacker: And who does run this department?

Humphrey: I do.

Hacker: Oh. I see. And what am I supposed to do?

Humphrey: We’ve been through all this before. Make policy, get legislation enacted and, above all, secure the department’s budget in cabinet.

Hacker: I sometimes think the budget is all you really care about.

Humphrey: Well it is rather important minister. If nobody cared about the budget, we might end up with a department so small that a minister could run it.

Hacker: Humphrey, are we about to have a fundamental disagreement about the nature of democracy?

Humphrey: Nooo, Minister. Merely a demarcation dispute.

Democracy and demarcation. Two worthwhile debates that – as the cordial manner of Humphrey and Hacker demonstrates – need not devolve into hypocritical, partisan, frothing at the mouth. Need not, but nonetheless sometimes do.

In his guest column today, Mendes writes:

The proper role of the federal public service is to provide fearless advice to the government on policies that are critical to the future of all Canadians. The government has the right to decide whether to accept that advice or reject it and then to expect the federal public service to loyally implement the government’s policy decisions if they are lawful.

That part is correct. Government makes the final decision about what policies will be adopted, and the public service then has the obligation to implement it. However, Mendes then drifts into the following:

What the government can’t do, if it does not want to torture Canadian democracy, is to force public servants to develop and promote policies they do not accept as in the interests of Canadians, and then pretend the public service is fully supportive of the ideologically driven policies.

That’s false. If a public servant does not “accept” a government policy, he is not doing his assigned job. It does not matter whether or not he, because of his own ideology (all policies are, by their very nature, ideological), thinks the “interests of Canadians” would be better served with a different policy. If he decides he wants to keep his job – which implies a decision to carry out the duties of that job – the very fact that he has made the decision to do the job necessarily implies that he is, in his official capacity, “fully supportive of the ideologically driven policies” of the government. And, if he is so supportive, the government does not “pretend” by saying that the public servant “is fully supportive”.

If the public servant decides that he does not want to be “fully supportive of the ideologically driven policies” of the government” then his own interests are in conflict with those of the elected government. In a democracy, if the government’s decision is final, that conflict of interest implies he must resign from the post. I can only suspect that that is exactly why Munir Sheikh felt it necessary for him to resign from the post of Chief Statistician.

Mendes writes:

This is not the first time the government has sought to undermine the critical task of the public service to provide fearless advice.

There is no allegation, and no evidence, that anyone prevented Munir Sheikh, or anyone else at Statistics Canada, from carrying out the “critical task of…[providing] fearless advice”. We do not yet even know what communications Sheikh made to his Minister, much less whether or not the advice was followed (and, much much less, whether or not the advice credibly can be called “fearless”). And, even if the advice was not followed, that does not mean that someone prevented Sheikh from providing the advice. Mendes’ is a straw man argument, in this respect, and smacks of partisanship.

Mendes continues:

It is primarily in totalitarian regimes that there is little use for an independent public service, or judicial or quasi-judicial bodies that seek to promote the public interest regardless of politics.

Listing public servants within the executive branch along side quasi-judicial servants falsely implies that deputy ministers and chief statisticians are akin to, and have the same independence required by, judges. Such is not the case. Quite unlike chief statisticians, judges don’t provide advice: they lay down law. Unlike chief statisticians, judges do not take orders from ministers of the executive branch.

In our democracy, a public servant in the executive branch is not “independent” of the elected officials comprising the government. Responsibility for all policies and implementations of a Ministry falls squarely on the lap of the Minister, who is an elected official. The assignment of responsibility to an elected official ensures that the voter has a way of controlling government to some extent; a way of punishing or rewarding government for making the policies its public servants implement. The public servant who advises the Minister is, for the most part, not accountable to the public. He/she advises but must obey the Minister if the electorate is to retain the power to reward or punish the government, and thereby to ensure that the country remains democratic.

Nor is it the role of the public service to “promote the public interest regardless of politics”, in the sense that Mendes seems to mean it. To understand what Mendes envisions should be involved in such promotion, consider his complaint that:

In addition, the Prime Minister’s Office vets almost all external communication, resulting in Canadians not being able to test the fearless advice offered by public servants against the destructive ideologies of perhaps Canada’s most ideologically driven government.

Mendes is suggesting that the public service has, or should have, a role akin to Her Majesty’s Loyal Opposition: holding the government to account for its policies. That is certainly not the case. If a public servant reporting to a Minister has policy ideas that run contrary to those of the government, he tells the Minister, not the public. The public servant does not have the right or responsibility, while in office, of holding a press conference and telling the public that he thinks the government ought to be adopting his policy proposal. To the contrary, both before and after he leaves office, he has an obligation not to communicate confidential information to the general public and other third parties.

Her Majesty’s Loyal Opposition is elected not by coincidence, but by design. In a democracy, just as the electorate has the power to reward or punish MPs who form or support the government, it also has the power to reward or punish opposition MPs over their criticism of, or opposition to, the government’s policies. When an opposition party criticizes, opposes, or blocks a government bill that is supported by a plurality of voters, the electorate – in a democracy – must have the power to punish the opposition; to take away from the opposition some or all of its power to criticize and oppose government policy. In other words: the electorate must have the power to reward the government with more seats (possibly, with a majority) when and if it believes that naysayers are standing in the way of good policy. If, as Mendes suggests, the public service were to have the role of publicly opposing government policy by promoting policies contrary to the a government’s popular policy decisions, the electorate would have no way of punishing the public servant for standing in the way of what it believes to be good government policy.

Maybe it’s just me, but with over-the-top claims that Sheikh’s advice to the minister was “fearless”, and that the current government is “perhaps Canada’s most ideologically driven government”, Mendes’ column appears to be little more than the result of a partisan fit over frustration that his own ideology differs from that of the government. In other words, he appears frustrated with the fact that his own ideology differs from that of millions of voters who elected MPs forming the current government. It is therefore not surprising that the essence of his objection is that an unelected public service should have the role of disclosing and thereby promoting its own policy proposals to the public; of thereby opposing government whenever the government adopts policies contrary to those promoted by the public service. This implies that there should be a class of opponents of government policy who are funded by taxpayers who are denied any means of rewarding (with more power) or punishing (by the removal of power) said opponents. In other words, it implies that public servants should not serve the public, but lead it. Far from being a defence of freedom and democracy, Mendes’ stated views about the public service are, in my view, both pro-tyrannical and anti-democratic.

I am an employment lawyer, not a tax lawyer. Prior to being called to the bar, I studied the allocation of taxation powers under Canada’s constitution, and concluded that the federal government does not have constitutional authority to impose an income tax if the revenues from the tax are at least in part for provincial purposes (i.e., for things falling under exclusively provincial legislative jurisdiction, like health care and education). I also concluded that there is no chance that any court would declare the federal government to lack the constitutional authority to impose the federal income tax.

I’ve also explained to people, numerous times, that I do not provide legal advice in respect of taxation. Those interested in knowing more I refer to a tax lawyer, such as David Sherman of Thornhill (at least, that’s where he was at one time).

For reasons I’ll not get into here, I have little reason to doubt that some of the calls or letters I receive are essentially from undercover tax cops hoping that I’ll advise them not to file or not to pay their taxes…advice I never give. I share that with you only so that you will understand the tone of my response to Mr. X, further below.

Mr. X writes:

Hi Paul. thank you for your site (www.ownlife.com/tax/) with so much information. Just as I was about to not file an income tax return next year, I came across your site and learned quite a bit. I was also contemplating filing as per http://www.detaxcanada.org/

However, at this point, there is still a lot of time, but one thing I know, that income tax in this country is nothing but a very sophisticated scam. I also noticed that you somewhat agree with that. My question for you is: How do you get around paying income tax, legally? I’m just so sick of this game that consists of ruining people’s lives – forcing us to make every decision based upon income tax. We live in constant fear of non-compliance that I’m so close to actually leaving the country, thus not being a resident of canada.

[...]

Thanks in advance,

Mr. X

I replied as follows:

Dear Mr. X:

I would recommend against failing to file. I do not “get around paying tax”. I file, I disclose fully, and I pay dearly.

Believing that the government is not complying with the law is very different from believing that one has a chance of doing anything about it in our courts. The folks posing as our government have the guns, they have the jails, and far far too many people (many of whom vote for the politicians who give us these tax laws) are quite happy to have them take money from those who earn it, and spend it on those who do not (i.e., to have the government seize your earnings, and spend it on those who probably would never survive if left to their own devices).

The only solution is the election of enough Members of Parliament who actually care about individual freedom, and who actually respect the constitution. Until then, fines, jail, and other injustices await those who fail to do what our elected officials force us to do at the point of a gun: confess the sin of having created wealth upon which every individual’s survival and happiness depends, and pay the required fine (i.e., taxes) for having committed that sin.

Judges are federally appointed, and none of them can reasonably be expected to conclude that the federal government has no authority to impose an income tax the revenues from which are ultimately spent on provincial purposes. Write, speak out, get politically active, and – so long as they’re taking money from you at gun point – comply.

If you want to swap yearly punishment for a yearly bonus, the answer’s easy: choose evil. Stop working, assume the role of a child, stand with others holding signs that – in effect – say “gimme gimme gimme”, and start voting for a living, like they do.

With greatest sympathies,

Paul McKeever

Mr. Reynolds would be correct (at least in the Canadian province of Ontario) were his letter written in the midst of the summer of 2003. In May of 2003, an Ontario court concluded that although the federal government of Canada in 2000 had been given a year to repair an unconstitutional marijuana prohibition law, it had failed to do so, such that possession of a small amount of marijuana was not prohibited by any law of Canada. Given the decision, the “Prince of Pot”, Marc Emery (who co-founded Freedom Party of Ontario in 1984) commenced a cross-Canada “Summer of Legalization Tour“, during which he smoked pot in or near police stations across Canada to demonstrate and spread knowledge about the absense of marijuana prohibition in Canada.* And, during the summer of 2003, I was the guest of UPN Detroit’s television program “Street Beat” to discuss the non-prohibition of marijuana (and gay marriage) in a short debate segment entitled “Canada: Friend or Foe?”.

Mr. Reynolds’ assertions about marijuana can be found written by numerous people on numerous web sites. However, the constitutional argument put forth by Mr. Reynolds ceased to hold water following the summer of 2003.

Therefore, on the NP blog, I replied as follows:

Hate to spoil the party, but Mr. Reynolds ceased to be correct on October 7, 2003. On that date, in the case of Hitzig v. Canada, the Ontario Court of Appeal remedied the offending provisions of the prohibitive legislation, thereby rendering it constitutional again. Ontario’s summer of possession was a short-lived summer of justice.

Here’s the key passage, followed by a link to the full decision:

“In R. v. Parker, supra, this court declared the prohibition invalid as of July 31, 2001 if by that date the Government had not enacted a constitutionally sound medical exemption. Our decision in this case confirms that it did not do so. Hence the marihuana prohibition in s. 4 has been of no force or effect since July 31, 2001. Since the July 8, 2003 regulation did not address the eligibility deficiency, that alone could not have cured the problem. However, our order has the result of constitutionalizing the medical exemption created by the Government. As a result, the marihuana prohibition in s. 4 is no longer inconsistent with the provisions of the Constitution. Although Parliament may subsequently choose to change it, that prohibition is now no longer invalid, but is of full force and effect.” (para. 170)

Full text of the decision: www.ontariocourts.on.ca/decisions/2003/october/hitzigC39532.htm

Note: I must add that, in lamenting the loss of the freedom gained in 2003, I am not, by implication, glorifying escapism (nor, for that matter, do I think that the government ought to be passing laws about who can be married, or that discriminate on the basis of marital status, per se). There can be no rational argument that it is ethically right or virtuous intentionally to escape the facts of reality. To the extent that someone is using any substance to help their brain to do so, it is a vice, not a virtue, so to use such a substance (which is not to imply that the substance, itself, is somehow intrinsically bad or good). However, it is not a function of a government to force people to act virtuously or to pursue rational values. It is, rather, the function of a government to ensure that no person’s immoral choices violate any other person’s control over their own life, liberty or property. Accordingly, marijuana prohibition is not a function of government. I leave it to you, dear reader, to determine of what sort of organization it is a function.

Footnote: Dismissing electoral politics as a fruitful pursuit, Marc parted from his involvement with Freedom Party of Ontario in 1992, and lived, for a time, in India. He returned to Canada shortly thereafter. Motivated by a belief that freedom is most effectively sought by picking a single issue that gets to the root of issues relating to freedom (e.g., control over what goes into ones own body), Marc chose to focus on marijuana prohibition laws. He established the BC Marijuana Party in the Canadian province of British Columbia, and set up a business selling marijuana seeds online. He openly reported the source of his earnings in his tax returns, and the government of Canada was happy to receive a large chunk of the proceeds of his marijuana seed sales as income taxes. Largely because of his openly political approach, the the US DEA set up offices in Canada and, eventually, persuaded Canadian police to arrest Marc for online seed sales (although he had been charged in Canada a few times, he had never been given anything more than a fine in respect of his seed sales). As a result of his arrest in respect of seed sales to US buyers, the US government is seeking the extradition of Marc to the USA, where he could face life imprisonment. It was reported, earlier this year, that the US government was willing to settle the matter for a penalty that involved five years imprisonment, mostly in Canadian prisons. At last report, the Canadian government was unwilling to agree to those terms, and was willing to approve Marc’s extradition.

1. The federal government overtaxes Canadians, so that it has more money than it needs to pay for services that it is authorized, by the constitution, to provide.
2. The federal government takes the extra revenue, and contributes it to provincial coffers in an effort to ensure that each province has the same amount of money for its various socialist programs (notably, health care, welfare, and education).

Under this program, people who get skinned are called residents of the “Have” provinces. People who get stuff they didn’t pay for are called residents of the “Have Not” provinces.

In the past, provinces with essentially dead, heavily subsidized, or limping economies – i.e., the “Have Not” provinces – included such provinces as Newfoundland and Labrador (where the fishing industry – which was the backbone of that province’s economy for the longest time – was essentially closed down). However, with the rising price of oil and with various oil discoveries, formerly limping or dead economies have resumed producing things of value. As a result, they have become, or are quickly becoming “Have” provinces.

Meanwhile, the long-standing “Have” province of Ontario is on the verge of becoming a “Have Not” province. Ontario’s wealth production has been largely industrial, banking, and logging. The re-imposition of electricity price controls (after a short-lived, under-defended attempt to end retail price controls) killed any prospects for new investment in power generation in the province. With land development continuing, power demand increasing, and old power-generation facilities wearing out, electricity demand has often exceeded supply (leading the government to ration consumption by means of intentional brown-outs and rotating black-outs). Electricity prices have climbed too high for many logging and industrial companies, which have closed down. With Ontario’s “Employment Standards” legislation, high levels of taxation, etc. making it impossible to justify hiring Ontario labour to build widgets or answer telephones, companies that used to hire Ontarians now hire people in China and India at a fraction of the cost and hassle.

And so, as every socialist is want to do, Ontario’s Premier McGuinty is blaming Ontario’s anticipated economic crisis, at least in part, on the equalization program. For the wrong reasons, he (reportedly) is advocating a good thing: eliminating it.

Now, one must keep in mind that equalization is a program brought in by federal politicians and bureaucrats who strongly believed in a centrally-planned economy. And, as with virtually every economic swindle passed off by Canadian socialists as being part of the “fabric” of Canada, a myth was developed that equalization is “constitutionally entrenched”. Indeed, there were politicians who wanted equalization to be explicitly authorized by the Constitution Act, 1982, but that didn’t happen. Instead, the result was section 36, which expressed a “commitment” to equalization, but which also explicitly stated that section 36 did not confer any authority with regard to equalization.

Life, however, imitates art. Today, the broad majority of journalists falsely think that the equalization power is “constitutionally entrenched”; that the constitution requires the federal government to overtax everyone and redistribute the loot. All it took was for a few loose-lipped liars to falsely suggest that equalization powers are “entrenched in the constitution”. Leftist journalists, eager to help in the effort to turn wishes into realities, propagated the myth in article after column after article. Today, journalists just write “constitutionally entrenched” as though it were a metaphysical given. They never bother to actually speak to a constitutional law professor.

Still, I held out hope that, with this issue once again coming to the fore, Canada’s least offensive newspaper would get it right. I should have known better. There it was, today, in an editorial (published only online, so far) titled “The Post editorial board on equalization: Canada’s albatross“:

While there are practical obstacles to getting rid of equalization — it’s entrenched in the Constitution, for one thing — the arguments that have-not provinces need the money to provide comparable levels of service at comparable levels of provincial taxation have all but evaporated.

(emphasis added)

Sigh.

At least the National Post allows its readers to respond online…which I did, as follows:

It is widely believed, among journalists, that the equalization program is “constitutionally entrenched”. That belief, however, is a falsehood.

Subsection 36(2) of the Constitution Act, 1982 is the source of the falsehood. It states that “Parliament and the government of Canada are committed to the principle of making equalization payments…”. However, that statement is qualified by the opening sentence of subsection 36(1): “Without altering the legislative authority of Parliament or of the provincial legislatures…”.

As any competent constitutional lawyer or law professor could tell you (it might make coverage more credible if the National Post bothered to interview at least one…I’d recommend Professor Andrew Petter, who is Dean of the University of Victoria Law School): Section 36 does not change the law-making powers: it does not confer any authority, and it does not take any away. And, as it turns out: the power to make equalization payments is not conferred anywhere in the constitution.

Paul McKeever’s “The Myth of the Fiscal Gap”

The only authorized transfer of federal funds to provincial coffers is set out in the Constitution Act, 1907. That remains a valid part of our constitution. However, the amounts currently doled out as “equalization” are far in excess of the amounts authorized by the Constitution Act, 1907.

That is why learned advocates of equalization pin its constitutionality not to section 36 of the Constitution Act, 1982, but to the equally mythical “federal spending power”…the very power that Pierre Elliott Trudeau denied existed, which Professor Petter denies exists, which the Reform Party denied existed, and which the Conservatives (before they formed the government) essentially vowed not to use.

Bottom line: please do not help the advocates of central planning to propagate the myth that equalization is constitutionally mandated. It isn’t. And, to the contrary, there is every good argument that it is no more authorized by the constitution than is a Toronto military paid for with Toronto municipal revenues.

Paul McKeever
Lawyer, Leader of Freedom Party

I’m worried what those law students will be trying to do once they pass the bar. Sounds like they want to criminalize people’s feelings and anything that may stir the pot in a direction they don’t like. Thought police anyone?

I replied:

Law is a description of the circumstances under which the government may deprive you of liberty or property. It can be consistent with the facts of reality (including the nature of man), or it can be contrary to the facts of reality.

To tell your child that a given religious belief is contrary to the facts of reality, or that it foretells a physical threat to ones liberty or property, may very well offend those who hold the belief, but it may very well save the life of ones child. All of the good feelings in the world won’t allow someone to survive. All of the ignorance in the world will certainly decrease the likelihood of ones survival/happiness.

Freedom requires that a government’s ethical standard be the life of a man qua man. That requires government always to be consistent with the facts of reality.

To call upon the government to seize control of a person’s liberty or property on the ground of emotion is to call upon the government to abandon human life as its ethical standard. It is to lobby for death.

The only thing worse than not defending freedom is defending it so poorly that ones audience is left thinking maybe freedom is not defensible. Consider Ezra Levant, who is currently responding to a human rights complaint for his allegedly “offensive” publication of the famous Mohammed cartoons.

Ezra condemns our human rights commissions’ procedural and evidentiary standards for not being court-like. He thereby implies that censorship would be acceptable did our commissions have court-like standards.

Ezra says censorship is wrong for this reason: we have (he submits) a long history of laws that disallow it. In other words: our laws (allegedly) against censorship are just because they are old. Yet the argument that “old law is just law” implies that we should still have laws that facilitate slavery in Canada, that give only propertied men the vote, and that make it illegal to open your store on Sunday.

Ezra condemns the addition of speech to the original list of things regulated by human rights commissions. He thereby implies that he has no objection to human rights laws concerning employment and housing. Our human rights laws typically cannot prevent someone from denying a person a job or an apartment so long as the reason for the denial is not known to be one prohibited by human rights legislation. Thus, in effect, Ezra’s position is this: nobody should prevent Ezra from saying that a another man’s religious beliefs are dangerous but, if Ezra utters such an opinion, he should lose the freedom to deny that man a job or an apartment. In short: shut up, or put up. That is clearly a self-defeating defence of “free speech”.

To be rational and effective, the advocacy of freedom must be founded upon the material facts of reality.

A human being must obtain values (such as food and shelter) if he is to survive. To obtain values, a man must choose to engage in rational (hence productive) thought. His mind must maintain control of his actions so that his rational decisions will result in the production of values. His mind must remain in control of the values he produces if he is to use them for his own survival and happiness. That control – the control of ones own actions and property – is freedom.

If a man does not think rationally (i.e., if he is irrational), he can live only by obtaining values from someone who does think rationally. If others do not give the irrational man values for free, he can obtain values from others only without their consent; only by interfering with their control of their own actions or property; only by enslaving or expropriating them; only by denying others their freedom.

No amount of rational thought can preserve a man’s life if he lacks freedom. For that reason, the violation of a rational man’s freedom is a threat to his life. Because the irrational man depends upon the rational man’s production of values, the irrational man’s violation of the rational man’s freedom is also a threat to the irrational man’s life. Thus, the life of an irrational man is a murder-suicide in progress. Were a whole society of men consistently to attempt live as irrational men do, the result would be (and, historically, has been) mass death.

It is physically impossible to make another man think rationally, or to prevent him from having racist, sexist, or other irrational beliefs. However, one can make life possible for a rational man by preventing irrational men from violating his freedom. Thus, in a society that values life rather than death, a government’s role is not to compel individuals to think rationally but to defend every individual’s freedom.

When government performs that role well, life and happiness are possible to a rational man because his mind maintains control of the production and use of his values. In contrast, when government increasingly passes and enforces laws to violate freedom, government becomes an ally of irrationality and an enemy of life; it gradually ceases to be a government.

Ezra’s human rights complainant considers Ezra’s silence to be a value. Ezra will not consent to provide the complainant with that value. Were the complainant to obtain that value by physically gagging Ezra, the government would rightly use force against the complainant to restore Ezra’s freedom because life requires freedom. For the government to obtain that value for the complainant by means of force is wrong because life requires freedom.

Ezra’s legal case is, he says, his stepping-stone to the making of a political case. If, in the political realm, he drops his ineffectual legal arguments for freedom, and demands freedom on the ground that it is an indispensable requirement of his life, he will become an asset to the advocacy of freedom, rather than a liability to it.

Gap-osis has become an all too common and embarrassing syndrome. A government in one jurisdiction allows its expenditures to exceed its revenues, then blames its deficit on “under-funding” by a senior level of government. The asking government claims there is a “gap” between the total tax paid by people who live within its jurisdiction and the amount ultimately spent there. Asserting that it is the “engine that drives” the economy, the asking government demands its “fair share” of tax revenues.

Canada’s gap-osis poster boy has most certainly become Ontario Premier Dalton McGuinty who — with the politically correct approval of the province’s Progressive Conservative and NDP parties — has been demanding a share of federal tax revenues to make up for a $23-billion “gap.”

However, gap-osis is also running amok at the municipal level in Toronto. City councillors, welfare advocates, the Toronto Board of Trade: None are able (i.e., willing) to escape a politically advantageous gap-osis affliction. In addition to more autonomy for Toronto council, they have all been demanding provincial cash to close a gap between the provincial taxes paid by “Torontonians” (by which they mean everyone living in or around the City of Toronto) and the provincial funds spent in Toronto (by which they mean only the city).

What is more, the city’s demands are actually more justifiable than the province’s when one considers the narrowness of the city’s tax base and the breadth of the province’s.

As a result, with the province too strapped to continue shelling out provincial revenues to municipalities that are spending more than they take in, McGuinty has been put in an embarrassing situation: He cannot very well argue that diverting provincial revenues to municipalities is wrong while arguing that diverting federal revenues to Ontario is right.

McGuinty’s problem has unmistakably influenced the province’s newly introduced Bill 53, which facilitates governance and financing reforms for the City of Toronto. The bill is purportedly the result of consultations and research, commenced in 2004, to ensure a fiscally sustainable and accountable governance of the province’s largest city. Yet it has long been obvious that the most effective way to make a government spend in a responsible, sustainable and accountable way is to ensure that it pays for those expenditures with its own revenues, and raises those revenues responsibly, sustainably and accountably.

Since the election of 2003, my party has proposed a set of municipal finance reforms that acknowledge the effectiveness of that approach. Specifically, we propose that municipal property taxes be eliminated and replaced, in each municipality, with a consumption tax. In particular, we propose that each municipality be permitted to impose, within its boundaries, a municipal premium collected as part of the Provincial Income Tax (PST). Municipal taxes, hence municipal spending, would be kept low by market forces. Each municipality would determine its own premium with knowledge that, if the premium is raised too high, customers and businesses will be encouraged to do their shopping and selling out of town.

Similar proposals have more recently found their way into recommendations by non-partisan entities, such as the Toronto Board of Trade. Yet, despite the broad appeal of these proposed reforms, the McGuinty government has decided to proceed with legislation that aims to resolve its own political dilemma by exposing taxpayers to the possibility of even more irresponsible, unsustainable and unaccountable taxing and spending by the government of Toronto.

By titling Bill 53 the Stronger City of Toronto for a Stronger Ontario Act, 2005, McGuinty has made a transparent attempt to bolster his bid for federal cash. He is suggesting that he walks his Ottawa talk about a “stronger province of Ontario for a stronger Canada.” However, the bill does little to improve the lot of taxpayers. It does not remedy municipal reliance on property taxes, which are both economically unsound and unjust. It does not impose any checks or balances on excessive municipal taxation or imprudent municipal spending.

Rather, the bill functions primarily to reduce the likelihood of further demands by Toronto for provincial revenue. Once Bill 53 is passed, any Toronto demands for provincial revenues can be met with a response from McGuinty that the city does not need provincial funds. He will argue that, unlike other municipalities, Toronto now wields some of the province’s taxing power, such that the city now has a broad enough tax base to satisfy its own budgetary needs.

Given that McGuinty wants federal cash even though the province’s taxation powers are already quite broad, it will be a hypocritical response. However, that response may function to quiet the city’s council. With Toronto quieted, McGuinty will be able to continue playing the gap card with Ottawa without Toronto calling him on his hypocrisy.

Paul McKeever is the leader of the
Freedom Party of Ontario.
www.freedomparty.on.ca

“Do the current program and other federal transfer mechanisms need reform, accountability and an accurate means of measuring their impact on all provinces? Absolutely. Should the rich provinces get back all the dollars their taxpayers send to Ottawa, thereby eliminating the so-called fiscal imbalance? Absolutely not, because that would reduce federalism to nothing more than a financial balance sheet and effectively turn the central government into a non-profit collection agency for the wealthier provinces.”

To my knowledge, Ontario has not proposed that it receive “all” of the money its taxpaying residents pay to the federal government. Ontarians and their government recognize that, as Canadians, they must contribute to exclusively federal matters like the military, for example. However, Ontario is indeed losing under the current equalization scheme, and it is losing unjustly.

In a free and democratic country, a government may spend only what the country’s constitution gives it authority to spend. Canada’s constitution gives the federal government only the authority to pay out the amounts set out in the Constitution Act, 1907, which is still in force and binding. The Constitution does not give the federal government authority to redistribute wealth via the current federal equalization payments. If the federal government wants to engage in such spending, it should be seeking a constitutional amendment.

Because the federal equalization payments are unconstitutional, Premier McGuinty is wrong to ask for federal money . However, Ontario would be in the right to demand an end to equalization payments, and a corresponding reduction in federal taxation. This it could rightly do in the name of freedom and the rule of law.

Uxbridge, Ont. — Re Is Premier In Vanguard Of A New Politics? (May 17):

To avoid the political cost of spending cuts or tax increases, Ontario Premier Dalton McGuinty pleads for a $5.7-billion contribution of federal revenue to Ontario’s purse.

Such a contribution would violate Canada’s constitution; aggravate secessionist sentiments; blur the lines of political and fiscal accountability; leave Ontario’s spending crisis unaddressed; and spawn harmful copycat efforts throughout all levels of government in all provinces.

Murray Campbell opines that Ontario’s NDP and Progressive Conservative MPPs would “have to be mad” not to endorse Mr. McGuinty’s strategy. If true, the Premier had better beg for an additional, massive federal investment in psychiatric hospitals for those of us who advocate fiscal responsibility, accountability, and respect for the rule of law.

Paul McKeever, Leader, Freedom Party of Ontario