Tagged: Graham Steele
The continuing education of Christine McCulloch, among others
Early last month, Contrarian revealed that Nova Scotia’s Chief Electoral Officer had deliberately made her latest report of political donations harder to use by publishing them in an image-based PDF format whose text could neither be searched nor copied and pasted into another document.
With help from hacker-readers, Contrarian republished the data in the searchable, text-grab-friendly format McCulloch used for previous years’ reports.
I’m not done with this topic. Several generous readers have converted the open PDF file we published into an Excel database file, thus enabling much broader use of the interesting political data it contains.
I will post that Excel CSV file soon, along with a challenge to encourage innovative projects that might help Nova Scotia officials, and even McCulloch herself, grasp the democratic potential they could unleash by giving citizens fuller access to data their taxes paid to gather.
McCulloch contended that crippling the campaign disclosure report was necessary “to protect contributors from ‘data-mining.’”
Dan O'Connor hated PDFs
It turns out the Appeal Court of Nova Scotia has already adjudicated this issue in a case called O’Connor v. Nova Scotia, in which the court upheld a citizen’s right to obtain data in its original format (a Microsoft Access database file in this case).
The O’Connor in question is one Dan O’Connor, then chief of staff to a series of NDP leaders, now chief of staff to Premier Darrell Dexter. His lawyer was Graham Steele, now Minister of Finance.
The format issue was one of several considered by the courts. The trial judge had, at O’Connor’s request, ordered release of the documents in the original Access database format, instead of the flat, McCulloch-style PDF offered by the province. The Appeal Court upheld the order for release in Access database format, but went out of its way to avoid making this requirement a precedent. Mr. Justice Jamie Saunders, wrote the unanimous decision [my emphasis]:
[119] The [province] complains that by, in effect, ordering the government to provide the information to Mr. O’Connor in the Access format, the chambers judge exceeded his jurisdiction and set a dangerous precedent.
[120] Technically the [province] is right. There is no authority in the FOIPOP Act enabling the judge to do what he purported to do when he said:
…it only makes sense to provide all the relevant information in Access format, and I so order.
[121] However, it is hard to fault the chambers judge’s directions. The Access format had already been prepared by government. In other words it was “on the shelf” and immediately available to the respondent at no additional effort, expense, or inconvenience to the government. In those circumstances, it seems to me to be perfectly reasonable for the chambers judge to have given the direction he did. This ought not to be taken as establishing an unwarranted or unnecessary precedent. As the chambers judge himself recognized in the very next line of his judgment:
By doing so I am not saying that all FOIPOP Act applicants shall have their choice of formats. This aspect of my ruling is specific to the facts of this case.
A former Freedom of Information and Protection of Privacy Act administrator offers the following thought:
Governments do worry, legitimately, about releasing information that can be turned into solicitation lists.* With today’s technology, it is a snap to convert any list that combines names and addresses and/or telephone numbers into a mailing list or a phone list.
Section 20(3)(i) of the FOIPOP Act says that the release of personal information is presumed to be an unreasonable invasion of privacy (and hence prohibited) where “the personal information consists of the third party’s name together with the third party’s address or telephone number and is to be used for mailing lists or solicitations by telephone or other means.”
This is a very curious provision, because it is the only section in the FOIPOP Act, of which I am aware, that prohibits disclosure based on the applicant’s intended use. For all other purposes, the applicant’s intended use is irrelevant.
Section 20(3)(i) poses a real conundrum for government. How is government to judge what the applicant’s purpose is? What if the applicant doesn’t tell the truth? What if the applicant changes its mind? What if the original applicant doesn’t want it for a mailing list, but passes it on to someone else who does?
In the end, what the government tends to do is ask “Could this be used for a mailing list?” And if the answer is “yes,” they tend not to release it.
Graham Steele hated PDFs
Contrarian doesn’t know what’s in the mind of provincial officials, but this has the ring of truth. In effect, the possibility that personal data could be converted to solicitation lists is trumping other considerations. That outcome was clearly not the legislative intent, which applied the exemption only to cases where the data is to be used for solicitation, etc.
In any case, it’s not even clear the FOIPOP Act applies to McCulloch. She reports not to government but to the legislature. It’s not clear her office fits the definition of a public body under the FOIPOP act.
What would be helpful here is a much deeper understanding on the part of provincial officials as to the commonweal-affirming potential of the open-data movement that is sweeping progressive jurisdictions throughout the world, producing a new universe of citizen-empowering, economy-building tools. With its substantial cohort of tech workers, Nova Scotia ought to be at the forefront of this movement.
Contrarian is hatching plans to use our restored and enhanced version of McCulloch’s artificially crippled data as an illustrative example. Stay tuned.
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* I say this worry is vastly overblown. Conversion to solicitation lists happens less often than fear-mongers suppose. The risk of harm is almost always low. The potential benefits of open data are great.
Ei incumbit probatio qui dicit, non qui negat
I don’t know which is more disturbing: The NDP Government’s success in persuading a Supreme Court justice to impose a $5,725 fine on a man found innocent of the crime with which he had been charged; or Finance Minister Graham Steele’s crowing about this ‘victory” in a news release.
Acting Justice Minister Graham Steele [not exactly as illustrated
In our system, a not-guilty verdict is supposed to be tantamount to a finding of innocence. Instead, taking cues from the Queen of Hearts (“First the verdict; then the trial!”), Nova Scotia now imposes criminal sanctions without regard for criminal trials.
To circumvent the presumption of innocence in Reynolds’s case, the justice system allowed police to launch a second trial, one that masqueraded as a civil proceeding. The pretence liberated cops and prosecutors from the strict standard of presumed innocence. It enabled them to punish Reynolds, effectively finding him guilty, not beyond a reasonable doubt, but despite one.
The courts, to their shame, let them get away with it.
Like Justice Minister Ross Landry, for whom he was acting yesterday, Steele couched his government’s end-run around the presumption of innocence in bland platitudes, describing the abuse as “a tool” that “government and police are collaborative using” to deter crime. You can call horse turds road apples, but it won’t make them smell any sweeter.
The presumption of innocence is a defining characteristic of a free and democratic society. It is enshrined in the Universal Declaration of Human Rights, in the Canadian Charter of Rights and Freedoms, and the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe.
Free societies insist on this principle for the simple reason that most people are not criminals. The Latin maxim quoted in the headline above is sometimes more fully rendered as Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit – “The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.”
The presumption of innocence means the state bears the entire burden of proof, and the defendant none. An accused person need not testify or call witnesses, and his failure to do so cannot be taken as evidence of guilt. Neither jury nor judge can draw any inference from the fact a defendant has been charged with a crime. The case must be decided solely on evidence presented at trial.
Does all this make it hard for police to put away bad guys? You betcha, and for good reason: you really don’t want to live in a country where police find it easy to throw citizens in prison.
Apologists for the Civil Forfeiture Act try to brush these misgivings aside on the flimsy pretext that it concerns civil not criminal matters. Steele’s news release puts the lie to that fig leaf in the first sentence, which describes the act as, “legislation that helps make sure that crime doesn’t pay” [my emphasis]. To which Steele himself adds, “The success of this case sends a message that crime will not pay in Nova Scotia” [my emphasis]. It’s all about crime, and nothing but crime.
By pretending seizures under Nova Scotia Civil Forfeiture are civil in nature, when everyone can see they are criminal, the government and the court have turned criminal safeguards upside down. They have enabled cops to punish suspects whose guilt they cannot prove. This is a clear abuse of democratic principles we fought wars over, and it brings the justice system into disrepute. Not to mention Graham Steele, Ross Landry, and the NDP Government.
Presumption of innocence: a primer for Nova Scotia’s NDP
Back on the last day of June, CBC Radio’s Information Morning program put Justice Minister Ross Landry on the hot seat for the Dexter Government’s embrace of the Civil Forfeiture Act, a right-wing scheme to short-circuit the presumption of innocence. More accurately, the program’s listers put him on the hot seat.
The act lets cops seize property from suspects as long as they can convince a court the assets probably came from criminal activity. No proof needed. Just probability. As a standard of justice, it’s more Queen of Hearts (“First the verdict; then the trial”) than Justice Blackstone (“Better ten guilty persons escape than that one innocent suffer”).
Callers to the CBC understand the principle, even if the NDP Justice Minister does not.
Caller One: “Is it too difficult for our highly trained police service to obtain a conviction? Maybe it is. It would certainly explain why they’ve had to find an easier way to go, but it doesn’t explain why we are letting them do it.”
Caller Two: “This is 1984 guys coming at us here. This is Orwellian beyond a reasonable doubt. Due process. That’s why they fought the bloody wars. Isn’t that why we’re fighting the bloody wars today? This is outrageous.”
Caller Three: “With no due process and no actual determination of guilt, innocent people fall between the cracks. It is an unconscionable travesty of justice that gives police unprecedented powers and will lead to abuses as has been evident in other jurisdictions.”
Caller Four: “It surprises me that we are willing to stand by and watch such corners being cut in our justice system. We should all remember: We could all be next if this type of procedure continues.” Under restrained questioning from host Steve Sutherland, Landry responded with the sort of vapid talking points that are becoming a hallmark of the Dexter administration.
The act is another tool for police to go over criminal assets and go after assets that are the proceeds of unlawful activity.
Well sure it’s another tool — one democratic societies have eschewed for generations. The whole interview is worth a listen:
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My question is this: What on earth has happened to Nova Scotia’s NDP? Why wasn’t this malevolent piece of legislation rescinded at the first sitting after their election? Where are Maureen MacDonald, Howard Epstein, Graham Steele? How can they sit quietly while their government tramples on the very principles that brought them into politics?
The strange case of the NDP vs. the AG – ctd.
Graham Steele and I had a further email exchange. I suggested he had not answered the question at the heart of my original query:
Why didn’t you (or, if you wish, why didn’t [Cabinet Clerk Greg] Keefe) simply waive solicitor client privilege in these cases?
Canny Mandarins
I added:
A second question that I didn’t ask, but which still hovers over this: Is this a sign that the NDP government, with its very small cabinet, is falling prey to a classic malady of new governments, especially new governments whose ministers have no experience in government: that of being unduly led by the canny Mandarins?
Steele replies:
The answer is that the issue on this specific audit was supposed to be resolved by the broader discussions on revisions to the Auditor General Act. At the time the AG wrote to the Premier in October, everyone expected amendments to be introduced in the spring sitting.
The answer to the second question is “no.” That’s not a fair characterization of what went on here. I think people want to see some dark conspiracy on this issue. The reality is, as usual, much duller. A process to revise the Auditor General Act was underway, and this was one of the issues on the table; the process took longer than expected; the government was busy with other priorities. We’ll deal with the issue in the fall. Within six months, it will be a non-issue.
The strange case of the NDP vs. the AG
At first blush, Auditor General Jacques Lapointe’s refusal to issue an audit opinion on the province’s two largest business loan funds looks like another in the lengthening string of Dexter Government screw-ups. This is the NDP, for heaven’s sake, perennial champions of openness and accountability, withholding 281 documents and redacting a further 32 on grounds of cabinet confidentiality and solicitor-client privilege, thereby thwarting independent scrutiny of the corporate welfare trough they once scorned.
Solicitor-client privilege protects communications between a lawyer and a client from being disclosed without the permission of the client. It binds the lawyer, not the client. In the case at point, government is the client; it has an unfettered right to waive confidentiality. Contrarian asked Finance Minister Graham Steele why it didn’t simply do so.
Steele replied by email: “The key issue is how to allow the auditor general to have access to documents, without thereby opening to disclosure documents which are legitimately confidential…
“This issue, which is known as ‘limited waiver,’ is enshrined in statute in other provinces like Ontario,” Steele wrote. “We have no such provision in our Auditor General Act. Our view is that it is necessary to have a legislative framework in place before privileged documents are handed over to the Auditor General. The auditor general apparently believes the existing legislative framework is sufficient. With respect, we disagree, and we are backed up by the court case and the practice in other provinces.”
Steele cited a December, 2000, Nova Scotia Supreme Court decision, Nova Scotia v. Royal & Sun Alliance, in which the province sued two insurance companies seeking to recover damages paid to abuse victims in residential schools. While carrying out a review of the compensation program, the auditor general of the day was given access to various documents over which the province later tried to claim cabinet or solicitor-client privilege. Partly on grounds of that prior disclosure to the AG, the chambers judge agreed to give the companies access to some but not all of the documents.
In a statement to the media Wednesday, Steele said the province wants “to put the same framework [as Ontario], or a similar one, into our legislation, and then the documents will be turned over to the auditor general.” AllNovaScotia.com quotes Lapointe as complaining he suggested doing exactly that, but was stonewalled by government lawyers.
“[W]ith the benefit of hindsight,” Steele wrote to Contrarian, “It is obvious that we should have identified the issue of limited waiver as an issue that needed to be expedited, and we should have dealt with it in advance of the rest of the revisions.” Yup.
Steele made two other points in his email:
Something that was missed by the reporters was that the audit was supposed to cover March 2008 to September 2009 – in other words, 15 months of the last government, and only 3 months of ours. The idea that we are “covering up,” when most of the audit would have covered the previous government, is … well, far-fetched.
Our Cabinet has never made a decision to deny access. The matter never came before us because in the normal course we would have dealt with the matter when a legislative proposal was ready. In denying access, the Clerk of the Executive Council was simply following through on long-standing and well-established practice.
The second point is at best a distinction without a difference, at worst specious. Through most of the new government’s tenure, Robert Fowler was Clerk of the Executive Council. I worked for Fowler for two years, when he was CEO of the Sydney Tar Ponds Agency and I was its director of communications. We remain friends, and while we didn’t always agree, I can attest that Fowler was punctilious in his observance of elected ministers’ prerogatives. He may well have advised government to withhold the documents, but it is inconceivable he would have directed departments to do so without clearing the matter with the premier or deputy premier. I’m confident the same is true of his successor, Greg Keefe.
The whole embarrassing saga further erodes the new government’s political capital and moral authority. It suggests that, as with many new governments, especially those with no experience governing, senior civil servants are running the show. If this is indeed a problem, it is partly a result of a too-small cabinet, spread too thin.
One final note: Lapointe comes off as a bit of a show-boat in this exchange. He appears to enjoy his increasingly frequent sashays through the media spotlight. A civil servant who has experienced one of his audits complains that his MO is abrasive rather than constructive. That’s consistent with the impression he left here.
NDP dissembling – reader feedback
Contrarian reader Cliff White, who perches somewhere to the left of our new blue NDP government, responds to our complaints about the Dexter/Steele spin on their foregone fiscal promises:
Enough with the self righteousness already. Of course they have to take responsibility for, and be brought to task for, their broken promises and misleading statements. On the other hand, dismissing them offhand and branding them all as liars, as some readers have, is not helpful.
Lets face it: they didn’t get into this predicament on their own. There are, for instance, the unelected workers and volunteers who craft strategies and policy statements they think will sell during the campaign. And there is the public, many of whom later become the complainers, who do not want politicians to tell the truth. They want, and vote for, those who tell them what they want to hear. Take a look around and see how many elected politicians you can find who make a habit of pointing out unpopular truths. It does hurt though to see a government you hoped would set a higher standard, fall into the same old patterns.
Deficits, lies, and audio tape
CBC Cape Breton’s Information Morning host Steve Sutherland did a deft job Tuesday Morning holding Finance Minister Graham Steele’s feet to the fire on the NDP’s no-deficit, no-tax-hikes, no-program-cuts campaign pledge.
Steele had a well-rehearsed answer, including a far-fetched analogy about a family doctor whose honest diagnosis gets overruled by four specialists, but Sutherland was politely persistent. He pressed Steele twice more to explain the glib falsehoods at the core of the NDP’s spring election platform.
“The fact is that we were acting on the best information we had at the time,” Steele said. “The fact is that now we are in government, we have access to more information, better information, and that’s the basis on which we have to move forward.”
This explanation doesn’t hold water. Everyone knew last spring that the province was facing a huge budget shortfall, but Dexter and Steele promised to cure it without running a deficit, without raising taxes, and without cutting programs. They didn’t need better information to know this was impossible; The promise was untenable on its face. To claim now that it was offered in good faith is an untruth as shamefaced as the original promise. It diminishes both men, and the offices they hold.
The sad part of this is that the road map offered by the advisory panel is a good one, but it is overshadowed by the cloud of deceit that now follows the men who must carry it out.
Colin May said earlier that political promises are for fools. On Twitter, Carman Pirie of Halifax reacted to news of political untruths with cynical resignation. “It’s what they know how to do,” he tweeted. “Like getting mad at a dog for barking.”
Attitudes like this are poisonous to the body politic. Twenty years ago, Contrarian would have delighted to catch a premier and a finance minister in an obvious lie. Today, it just feels disheartening—especially from these two, especially when it seems to come so effortlessly.
Are promises for fools?
Contrarian reader Colin May writes :
Do you know anyone who believed the three promises made by DD and his colleagues ? Did you believe they would be able to keep the ERs open ? Everyone in the health business knew it was BS.
Voters just wanted rid of Rodney, they cared less about reality. The less said about the media the better.
Looks like Premier McNeil in four years, about the only bright light in the Canadian Liberal firmament.
Stan Jones adds:
While I tend to agree with the recommendations in the report, I wonder if it isn’t true that Dexter and Steele knew pretty much what the report would say the day they appointed the experts.
The views of all four of them are surely well-known (and if Dexter and Steele didn’t know them, why did they appoint them?) and nothing in the report surprises me, given what each has said in the past.
What new information?
This morning, Contrarian observed that Darrell Dexter had to have known he could not keep the three main promises of his June campaign: no deficit, no tax increases, and no program cuts.
Sure enough, the premier jettisoned all three promises at a news conference this morning, and lamely tried to ascribe his about face to new information:
But there are economic realities that we are faced with today that we did not know six* months ago.
and:
We have information now that no one had six months ago.
Do tell. What new information is that?
The Economic Advisory Panel report offers little that wasn’t known long before the May election call. The very first sentence of the Finance Department’s March, 2009, fiscal overview said, “the 2009-2010 budget will require some very difficult decisions [because] costs continue to rise while revenues remain flat.”
A chart from that review clearly shows the falling revenue:
From the same overview, here’s a chart showing rising expenses:
The plunge in offshore revenues was known as far back as the 2007 fiscal overview, which warned at page 11:
In recent years government has seen revenues increase in a number of areas, most notably in categories related to the production of offshore natural gas. However, some of these upward trend lines are flattening out or even declining.
The 2009 Renewed Energy Strategy, released in January, was equally candid about the pending drop in natural gas revenues at page eight:
Production of natural gas, a cleaner fuel than coal, has made a major contribution to our economy. Revenues from the Sable Offshore Energy Project account for nearly one-tenth of the provincial budget this year and a significant share of our GDP. However, production from Sable has peaked (or will peak soon), and royalties from that project will decline. Deep Panuke is the only other Nova Scotia offshore project moving into production, and its total gas and royalties are expected to be much smaller than Sable. If we are to retain the revenues, jobs, and business opportunities we’ve enjoyed from Sable, we need to attract new, large-scale offshore developments.
The Premier is famous in NDP circles as a numbers geek who pores over polling data. His then-Finance Critic / now-Finance Minister is a voracious reader of and commenter on government financial documents. It is not credible that any of this “new information” was new to them.
It may be new to voters who relied on Dexter’s and Steele’s campaign rhetoric for their understanding of what to expect in the way of deficits, tax hikes, and program cuts.
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* Five months, but who’s counting.
