Senate reform made possible—and useful

The Senate expense scandal, and the government’s malodorous handling of it, has given new life to shopworn nostrums for reforming or eliminating Canada’s maligned upper chamber. All have flaws ranging from severe to fatal.

Eliminating the Senate would eliminate sober second thought, that useful brake on the unfettered power of a majority government in the “dictatorship between elections” that is Canadian democracy.

Electing the Senate would imbue the upper chamber with legitimacy, empowering it to act much as the U.S. Senate acts, with all the attendant complications for passing legislation.

Creating an Equal Senate, with the same number of members from every province, cannot achieve the level of provincial agreement required to amend the Constitution.

Into this hopeless policy morass comes my friend Bill Turpin, bearing a novel proposal that seems (a) capable of implementation, and (b) respectful of the valuable sober-second-thought function. Here’s Bill:

Among other things, the Senate is supposed to be a brake when the Commons is acting precipitously. The more it is politicized, the less effective and legitimate it becomes.

Desiderantes meliorem patriam They desire a better country
Desiderantes meliorem patriam
They desire a better country

The GG appoints senators on the recommendation of the prime minister. The office of prime minister exists solely by convention. Therefore, the current Senate appointments are made by convention.

Convention can be changed. All it would need is a well-intentioned PM.

A new convention could be for the PM to appoint senators from a list submitted by the Companions of the Order of Canada. This would be less arbitrary than the status quo, and it would eliminate partisanship from the Senate. Alternatively, the CC [as the Companions are designated] could make their recommendations directly to the GG.

Electing Senators is a bad idea. Currently, the Senate can delay House bills, but not kill them. An elected Senate could make a strong argument for that power, creating the potential for the gridlock we see in the US.

The CC could also appoint the GG directly, for that matter.

OK, let’s hear it. What’s wrong with this scheme?

(By way of background, Companions hold the highest rank in the Order of Canada. Membership is limited to 165 plus a small number of honorary members. Companions are appointed by the GG on recommendation of an Advisory Council consisting of the Chief Justice of Canada, the Clerk of the Queen’s Privy Council, the Deputy Minister of Canadian Heritage, the Chair of the Canada Council for the Arts, the President of the Royal Society of Canada, the Chair of the Association of Universities and Colleges of Canada, and five members of the Order of Canada who sit on the council for a three-year period. This is about as insulated from day-to-day politics as such a body can be.)

A canny editor explains why journalists must name defendants

In an email cri de coeur last week, musician Robert Speirs lambasted Halifax TV newscasters for publishing the names of five men allegedly lured into motel meetings with a police officer they believed to be a a 16-year-old girl.

Bill Turpin, former editor of the late lamented Halifax Daily News, makes the case for printing names of people accused of crimes, even bogus crimes concocted to entrap them.

I understand Mr. Speirs’ distress over the plight of the men identified as the accused in the on-line child luring case last week and his sense that the media are persecuting them. But publicity is ultimately to their benefit.

Donald Marshall Jr., David Milgaard, Guy Paul Morin, Thomas Sophonow, and Steven Truscott are among a dozen or so well known cases of wrongful murder convictions in Canada. None of these injustices would have been corrected if names had been suppressed. People don’t empathize with convicts they know only as John Doe. They do not ask hard questions on their behalf.

Anonymous-Sex-defendantsIn Canada, child sexual exploitation (except for marketing purposes) is a heinous crime that does indeed provoke the rush to judgment that worries Mr. Spears. But if you’re wrongly charged with this crime, your reputation is lost whether or not your case proceeds anonymously. The best you can hope for is acquittal, which suddenly makes the courts your best friend.

But, like the police, the courts are staffed by people who make mistakes. At that point, your best friend is a public that holds the justice system to high standards. The public, however, cannot do this without knowing who has been accused. Some theoretical examples:

A colleague you’ve thought for years to be a fine person fails to return to work after a leave of absence because — you’ve just learned — she’s been jailed for shoplifting. You’d like to know if justice was served, but you didn’t follow the case because you didn’t know the nameless defendant you read about was someone you cared about.

Was it the justice minister’s son who was acquitted of drunk driving even though he clocked in a 0.16? You might hear rumours, but you’ll never know for sure.

An outspoken blogger stops posting for “personal reasons” after writing a couple of items critical of the way child sexual exploitation charges are being handled. Is it because he’s tired of writing or because he’s been accused of attempting to access child porn, even though he simply Googled the phrase “kiddie porn” for research purposes? You’ll never know.

When you don’t know who is accused, you can’t judge the judges or the police. You can’t even tell if the media are making up their crime stories.

This is not a theoretical argument. Just for example, during the 1970s and ’80s, thousands of Argentines judged to be enemies of the state by public-spirited cops simply disappeared from the face of the earth. Many were flown out over the Atlantic and dumped alive.

Faced with a choice, I’d prefer to have my good named dragged before the courts and, yes, the media.

Bill Turpin was managing editor, and later editor-in-chief of the Halifax Daily News during its heyday in the 1990s.

On addressing cabinet ministers – feedback

Bill Turpin, one of the few Nova Scotians who has both edited a daily newspaper editor and worked as a civil servant, disagrees with my criticism of Evan Solomon for addressing cabinet ministers as “Minister.”

The use of “Minister” by bureaucrats is not deferential. It’s good form used for good reason. The term is a reminder to both parties that they are engaged in a special relationship. It reminds the Minister that she is not merely a politician, but also someone whose job is to direct the civil service in the best interests of the people. It reminds bureaucrats their jobs are to provide their best advice on how the elected government can achieve its policy objectives, whether or not it suits the minister politically, and whether or not it suits the civil service. It’s known as speaking truth to power. The principle is highly valued by good civil servants, but it can be hard to live up to. The use of a seemingly archaic form in addressing elected officials makes it easier by establishing the right context before the conversation begins. Being on first-name basis with a minister is great for a bureaucrat’s ego, but that’s all.

For similar reasons, I cringe when I hear journalists addressing cabinet ministers by their first names. Reporters know they should keep a distance between themselves and the people they are covering. This is especially true in a legislature, where they report on the same cast of characters every day and where, in the long run, chummy relations work to the detriment of good reporting. So, a little formality is useful in this situation, too.

Evan Solomon’s got it right.

I have no problem with civil servants addressing cabinet ministers as ‘Minister.” Bill explains the basis for the convention well, and when I do work for a ministry, i adopt the habit myself. But journalists are a different matter. They do not work for ministers, and they should not don the mannerisms of those who do. It sounds obsequious, and obsequiousness is just as dangerous as chumminess. “Mr. Fast” and “Mr. MacKay” convey the appropriate level of formality and distance, without the odor of grovelling.

Oops! – II (updated)

Contrarian reader Dave Atkinson writes:

Both you and Bill Turpin used the word “fulsomely” to describe an apology. I assume you both know what you’re doing.

How droll. Bill and I probably knew once, but we, or at least I, forgot. William Safire rises from the dead to remind us. (As a bonus, he throws in “noisome” and “enormity.”)

[Update] Bill T. didn’t forget after all:

Sheesh! I’ve been lectured by Harry Flemming on the use of fulsome, so I chose it with care to describe The Coast’s apology, and did so because of its ambiguity. It’s nice that Dave Atkinson picked up on it, but I think Parker was too quick with the strikethrough.

As for me, I chose it carelessly, and I’m with Safire on this: Claiming that “fulsome” can also mean “full-bodied” (or whatever), because people use it when they mean to say “full-bodied,” strikes me as descriptivist lexicography run amok.

The Coast caves – feedback

Two readers see The Coast’s failure to lift a finger in defense of its reader-posters not as an unwelcome blow to free expression but as an overdue comeuppance for the well-known excesses of anonymous Internet posting.

Bill Turpin writes:

The Coast’s greatest failure to its readers was in allowing anonymous posts in the first place. It’s The Coast, not Samizdat, and this is Canada, not the former Soviet Union. You’re free to write what you want in this country, subject to defamation laws which, while imperfect, are not odious. There is no need to hide behind an alias. But when you do, you don’t have to think about what you’re saying, you don’t have to ask yourself where your “facts” originate, you don’t have to consider the reputation of the people you’re writing about, and you don’t have to worry about whether you’ve succeeded in communicating something. The resulting discussion rarely rises above eight-year-olds debating whether girls should be allowed in their tree-house. It’s a poor excuse for what Parker calls “free expression.” By publishing anonymous posts, online media have squandered an opportunity to enhance public discourse and chosen to debase it instead.

It’s interesting to see that The Coast promptly and fulsomely apologized for the comments at issue, which all but eliminates its own legal liability. This sends an additional message to anonymous commentators, i.e., not only is your anonymity illusory, but when you choose anonymity, you’re solely responsible for what you write. For this, The Coast deserves our gratitude.

Defamation suits are expensive for all concerned, even thought most don’t make it to court. This creates an unfair advantage for those who can afford them and it would be nice to see the law changed to level the playing field. Meanwhile, though, it would be wonderfully ironic if a defamation suit finally managed to let the sun shine on the subterranean world of online “commentary”

Dana Phillip Doiron agrees:

I don’t believe that individuals or groups should be allowed to use anonymous posting to slander someone with impunity.  The “comment” facility is akin to letters from the editor or op ed commentary in a printed news medium and, the “name withheld” feature encourages comment from sources (employees, relatives, neighbours, etc.) who would not participate were their name published.  It isn’t a license to slander.  It is the policy of most media to accept commentary as long as they have the contact information of the source.  Readers should have the level of confidence in the information that goes with the possibility of identification and accountability in court and the subject of commentary should have that recourse.

I share Bill and Dana’s distaste for the un-moderated, anonymous newspaper comment sections; they are havens for ignorant bile. That’s why comments on Contrarian are closely moderated (though sometimes anonymous). But the legal and ethical issues around anonymous Internet posting are more complicated than Bill and Dana let on, and you don’t have to be a fan of anonymous posts to believe The Coast shirked its responsibilities here.

The Coast has long encouraged anonymous posting, in the newspaper and on line. (True, as co-founder, editor, and part-owner Kyle Shaw argued in an email to me, the paper does require online posters to create a profile that includes a working email address, but this profile may have scant connection to their real life identities.)

If The Coast “deserves our gratitude” for having chilled anonymous expression, it certainly chose a sneaky route to that end. Having lured their readers down the garden path of anonymity, the paper owed them an ethical obligation to at least ensure that the judge in the case had the benefit of hearing both sides of the anonymity debate.

When an Ottawa judge ordered a conservative website to cough up identifying information about eight “John Does” who had posted allegedly defamatory comments on the site, the website appealed, and was joined by the Canadian Civil Liberties Association and the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic.

Both argued that a court should issue such an order only after a plaintiff has demonstrated a prima facie case for defamation, not merely leveled an accusation. Even then, the groups argued, a court should order disclosure only after determining, on the merits, that the public interest in disclosure outweighs concern for freedom of expression and privacy. As the Ottawa Citizen’s Don Butler reported:

In its factum, the CCLA argues anonymous expression on the Internet “fosters a veritable ‘marketplace of ideas’ online.

“Anonymity reduces the possibility of identification and fear of reprisal and encourages individuals to engage in legitimate, even unpopular, expression,” the civil liberties group says.

“It permits participation in public debate by those who would otherwise remain silent out of fear of persecution, loss of status or ostracism.”

Unlike Madame Justice Heather Robertson, who rushed to judgment having heard only one side of the argument, a three-judge panel of the Ontario Sessional Court has reserved its decision.

Although the lawyer for the two Halifax fire officials who sought disclosure said the identities were needed so they could commence a libel action, I am skeptical. It seems at least possible that the real purpose is one of command and control: to unmask any Halifax firefighters among the anonymous posters and take disciplinary action against them. If so, the application was an abuse of court processes. One consequence of The Coast’s failure to contest the application is that this possibility was never considered or tested by the court.

The issue before Justice Robertson might better have been, “Should accusations of racism against public figures, however intemperate, be a firing offense? And if so, how can minority employees combat what they genuinely believe to be racism in a public organization?”

This smells like a classic SLAPP suit—a strategic lawsuit against public participation—with taxpayers footing the bill, and The Coast acquiescing. It makes the paper’s left-wing editorial stance look more like a marketing ploy than anything borne of conviction.

I want to stress again that I have no knowledge of, or opinions about, the inner workings of the Halifax Fire Department; I have not read the comments at issue in this application; I have no opinion about their merits, about the merits of the Halifax Fire Service, or about its officials.