The October Crisis of Justin Trudeau

Referring to the coups by which Napoleon Bonaparte in 1799 made himself First Consul and later Emperor of the French and his nephew Louis Napoleon Bonaparte in 1851 made himself Emperor of the French, Karl Marx, in The Eighteenth Brumaire of Louis Bonaparte, remarked that history repeats itself: '…the first time as tragedy, the second as farce.' We might say the same of Pierre Trudeau’s invocation of The War Measures Act during the October Crisis of 1970 and Justin Trudeau’s invocation of The Emergency Measures Act last month.

Understanding and judgement of Pierre Trudeau’s action on 1970 are weak and differ radically between those in Quebec who experienced it and remember it and those in the English Canada who merely observed it and have largely forgotten it. But it was serious action in a serious crisis.

Justin Trudeau’s invocation of The Emergency Measures Act was an artefact of his amateur actor’s politics. There was no crisis and the emergency measures were an act.

When they set out the truckers’ convoy was a protest against a vaccine mandate for border crossing. This mandate was obviously pointless and part of Justin Trudeau’s use of vaccine mandates as a ‘wedge issue.’ Unvaccinated truckers had been crossing the border for a year when there were no vaccines, and many months after when they were given no priority for vaccination. But as the States would now require them to be vaccinated their protest was futile. As was pointed out even by those who had some sympathy for them. Most truckers would have no truck with the protest.

By the time they had arrived in Ottawa they had become proxies for everyone who was fed up with the mass of restrictions we have lived under for almost two years. The reporting is sketchy, but plainly many of those protesting in Ottawa were not actually truckers.

Responding to the truckers protest with his usual stock of hateful libels, ‘antisemitic, Islamophobic, anti-Black racist, homophobic, and transphobic,’ Justin Trudeau then hyped the protest to something like the ‘apprehended insurrection’ that was the ground of his father’s invocation of The War Measures Act, and never happened, though in 1970 many sensible people were panicked into imagining it.

This was Justin’s Big Lie. The truckers' biggest crime, the blocking of the Ambassador Bridge, was cleared up before he invoked Emergency Measures. Otherwise they, and their many fellow travelers, were guilty only of great mischief. But having adopted the Big Lie, Justin had to act as if it were true. The Emergency Measures followed necessarily.

Throughout the pandemic any questioning of the massive restrictions under which we have struggled to live has been vigorously suppressed. As must happen when free questioning is suppressed, many people lacked any understanding of what was being done and lost trust in authorities. Among these were the truckers, and their many sympathizers.

Most protests are inarticulate, disruptive and attractive to troublemakers. The truckers convoy was quite ordinary in this respect. What was extraordinary about it was the widespread sympathy it evoked, but more, led by Justin Trudeau’s instinct to demonize it from political motives, its general condemnation by elites who have been indulgent, or even supportive, of more malign protests.

Also extraordinary was the unanimity, running from the centre to the left, by way of the greens, of support for the Emergency Measures. People who had routinely denounced quite ordinary measures of Stephen Harper’s government, or even Liberal governments, as dictatorial, stepped forward to voice their support for the suspension of our rights and a witch hunt after supporters of the truckers. We only missed Stephen Lewis stepping forward to add his endorsement. The Conservatives’ opposition to the Emergency Measures, and qualified understanding towards the protesters, was condemned as the right uniting in extremism.

The cancellation of the Emergency Measures nine days after they had been invoked was not ‘job done.’ The farce had finished. The freezing of a few bank accounts were the only measures taken. In accordance with the legislation, the reviews will be long in coming.

But the consequences of the farce may be serious. The casualness with which the Act was invoked, the widespread, ready support, in the absence of any good grounds, the keenness with which the persecution of sympathizers with the convoy was projected, the vilification of the opposition, showed a country incapable of serious thought, quick to condemn, not ready to argue.

Meanwhile another tragedy was about to be enacted in Ukraine. There were some, who should have known better, who insinuated that the truckers were a Putin inspired distraction.

With the Emergency Measures ended their supporters pronounced those who had dared to oppose them ‘silly,’ with ladles of Putinesque disinformation to make their case. What was truly silly was the invocation of the Emergency Measures and their approval by an elite herd.

The world is always a serious place. If we try to make a farce of it there will be consequences. History may repeat itself, first as farce, then as tragedy.

The Inhumanity of the Official Doctors: Crushing our lives to save lives

The Official Doctors say they are just trying to save lives. The resulting economic devastation is not their concern. In politics and the media the issue is framed as lives versus money. Money always loses.

The real issue is lives and living. The Official Doctors’ prescription is to crush our lives. They show no interest in what they have done to our lives. They are inhumane.

We are social beings and ‘social distancing’ goes to the heart of our being and tries to stop it.

When restaurants and bars are closed any dismay is treated as frivolous. But that massive industry exists because restaurants and bars are so often where we get together. It is an easy target for lockdown, but we are not supposed just to move our social life into our homes. We are supposed to end it.

At full lockdown our condition is not far different from house arrest, a punishment. For many it is solitary confinement, widely considered a cruel and unusual punishment.

The whole texture of our lives, how we engage with people, meet new people, keep up with old acquaintance, work with people, build our lives, learn, address our common affairs, has been shredded.

Millions have died alone, their family and friends barred from comforting them and making their farewells. Grieving is suppressed along with the virus.

Laughing and singing are condemned. We have been drilled to steer clear of our fellows as if they might be rabid foxes.

We can Zoom and Skype and have FaceTime. Did the Official Doctors actually think “Gee. We can lock everyone down but they can get together virtually so that will be OK.”? Would they have acted differently if it were twenty-five years ago and the Web was in its infancy?

Those of us who have found some consolation in Zoom and the rest also know that it is not real life. As ersatz life it makes us long for the real thing.

For the Official Doctors we are so many lab specimens to be kept alive for observation and testing.

In politics, business and all organisations decisions are best made when people can thrash them out around a table. That is no longer possible. In the midst of a world crisis the quality of decision making has been degraded.

The suffering that has been imposed on us is ignored by the media. Covering it would be bad for morale. And each of us keeps quiet about our misery. We do not want to seem weak, or whiners. Asked how we are, we take it as a question of physical health and say we are well, as overwhelmingly we are despite the pandemic.

The massive suffering caused by the lockdown is only recognised indirectly as “mental health.” The mental health industry has been promoting itself vigorously for years and if the Official Doctors have depressed us all their mental health colleagues are keen to claim that they can help. But depression caused by the lockdown is not a mental health issue. It is a perfectly healthy reaction to having our lives crushed.

The evidence of our silent suffering is in ourselves and some we are in touch with, who, whatever their position on the pandemic and what must be done about it, share their feelings.

The impact of the lockdown is as various as our lives were before it hit. Those hardest hit, most isolated, are never heard from. Many are still working much as they did and carrying on only slightly constrained domestic lives.

Invidiously those in government and the media who tell us what is going on and what we are to do are the least affected by the lockdown. Like the Official Doctors they are having the time of their lives.

The death toll from COVID is impressive. What impression are we to take from it. COVID is serious. Yes. It is a once in a lifetime pandemic and disaster whose consequences were bound to be terrible.

Crushing our lives has not saved us. No one knows have many lives have been saved. Or how many deaths have simply been postponed from May to December. Everything that has been done to us in the name of saving lives has terrorised us to the point where most have a vastly exaggerated idea of the risks of the virus and the Official Doctors want it that way.

This is my model for Canada:

About thirty six million have lost on average two months of living.

That’s 6,000,000 years of living.

The worst case model said 300,000 would die. Say they would have lost five years of living. 1,500,000 years of living lost.
 

6,000,000/1,500,000 = Four times more living lost to the lockdown than might have been to the virus without it.

As vaccines are deployed we may be nearing the end of the crushing of our lives. Will we learn from the experience. Who will write the history? The victors? Will the Official Doctors claim victory?

There will be other virus. A frequent theme has been that we should have acted more swiftly and more severely. Anyone who remembers early March must know how foolish that claim is. But will that be taken as the lesson learned? Shall we lock down at the first word of every new virus?

Never again.

What's a Tory to do? The challenge of using a vote you don't think you should have.

I have four months to decide what to do with my vote for the next leader of the Conservative Party.

There are fourteen candidates to choose from at last count. Half of them I’d never heard of before they entered the race and I started getting emails from them. I won’t name them for fear of giving them undeserved publicity.

Those I had heard of, who held office when Stephen Harper was Prime Minister, would perhaps do, but their respective efforts to persuade me that she or he would be best, and sometimes that another would be poor, have not enlightened me.

You can see their calculated posturing, trying to distinguish themselves with new ideas, which Conservatives shouldn’t have, or claiming that they will return the Party to its old principles, which none should claim ownership of.

A consequence of the ridiculous year and a half campaign is that the best the Conservatives have to offer are spending their time mouthing evasive platitudes and fatuous hyperboles, checking themselves from speaking frankly for fear of losing votes, trying to distinguish themselves from each other across the country when they should be mounting a coherent opposition in Ottawa.

And preening themselves, claiming a special empathy with the voters, unique talents from their experience, and generally displaying a corrupting immodesty.

Several candidates seem to be staunch social conservatives, with whom I sympathise. But the idea that they can advance their cause by leading the Conservative Party without persuading the voters generally to see things as they do is stupid. And stupidity is a moral failing. And how staunch their social conservatism would prove when the next election loomed we cannot know. Stephen Harper was supposed to be a frightening social conservative and only lifted a finger to wag it at Tories concerned about abortion or gay marriage.

Then there is Kevin O’Leary. I never saw him in any of the hundreds of hours I spent in Conservative meetings or campaigns. All he brings to the contest is celebrity. Worse, celebrity bought with our tax dollars on the CBC. His only conservatism is the caricature conservatism of the brash entrepreneur. He may not be Donald Trump, as he insists, but the parallels are strong and his is noisome enough.

As with Trump in the States, the media have fallen for him. Before he announced he was running he had received more coverage than any of the other candidates and now that he is coverage has spiked. His impertinence in running shows him unfit.

Count me ‘Never O’Leary.’ If I can figure out a way to stop him I’ll use my vote that way.

But I don’t have a vote so much as a chance to express my preferences. On May 27 party members are to fill in a preferential ballot listing their preference from 1 to perhaps 13. I have written elsewhere on the irrationality of preferential voting. But the risk is that the ultimate winner may be the one who was many peoples’ sixth choice because they knew nothing against her or had heard of him. Without knowing how my fellow Conservatives may vote down to their sixth preference at least I can’t know how to deploy my preferences to assure O’Leary won’t win.

I was actually polled a couple of weeks ago, in a poll that offered only 8 choices and I chose 9, ‘Don’t know.’ But we really have no idea how the candidates are doing. So I could randomly pick several ‘anyone but O’Learys’ and find that had I put X 5th and Y 6th instead of the other way round I could have helped stop O’Leary.

All of which is to make the point that I shouldn’t have a vote at all. The Conservative MPs in Ottawa should choose their leader. They know the candidates. It is they the leader will lead. They will win or lose in 2019 on the choice.

Liberals may be pleased by the choice Liberal ‘supporters’ made in choosing Justin Trudeau in 2013. But very many Republicans are dismayed at the choice of Donald Trump as their candidate for President by a shambolic process and even Conservatives in Britain are dismayed at the choice and confirmation of Jeremy Corbyn as leader of their Labour Party by ‘grassroots’ there.

In Britain Conservative party members disastrously chose Ian Duncan Smith to lead their party in 2001. Two years later Conservative MPs were able to oust him. It took three months to choose him but he was replaced in a matter of days.

But whomever Conservatives choose on May 27 we’ll likely be stuck with. Even had the provisions of Michael Chong’s much touted ‘Reform Act’ saying MPs can trigger a review of their party’s leader been adopted by the Conservative caucus at the opening of Parliament, and I doubt and cannot find that it was, the prospect of having to spend a year finding a new leader would make the new leader’s position impregnable.

And so Justin Trudeau’s position may be impregnable. Because the MPs we elect can’t choose the man or woman most likely to defeat him.

Andrew Coyne descends to caricature in attacking opponents of Electoral Reform

Andrew Coyne alleges that opponents of proportional representation, among whom he kindly singles me out, ‘describe life under proportional representation in terms that bear no resemblance to any actual example of it,….’ He writes that the claim of supporters of what PR’s advocates sneeringly call ‘First Past the Post’ voting, the way we vote now, that it ‘produces stable majority governments, broad national parties, and contestable politics, owing to the unrivalled ease with which the public can “throw the bums out.” is a caricature.’

It is Coyne who offers a caricature, of the arguments of the supporters of FPTP. We do not say that PR never produces stable majority governments or broad national parties or that under PR bums are never thrown out. We say that PR makes all that very difficult and it seldom happens.

Coyne has evidently bulled up on European elections under PR to contest my report that ‘In the fifty years after 1945 in 103 elections in Belgium, Germany, Italy, Japan, the Netherlands, Sweden and Switzerland the major governing party was only thrown from office six times.’ He doesn’t deny that is true. He winkles out a handful of suspect counterexamples.

His first example is Norway where he says that the citizens have thrown the bums out nine times since 1945. He neglects to mention, perhaps didn’t check, that six of those times it was not the citizens at elections but a realignment of parties in the Storting that changed the government.

Examples can be multiplied. Spain after Franco presents a poignant example. For much of that time Spain had majority governments because of the ascendancy of the conservative and socialist parties and wrinkles in its PR that allowed the socialists to win 52 per cent of the seats in the Cortes with 44 per cent of the vote in 1986. But the December 2015 election produced a fractured Cortes. After six months of negotiations another election was called. Another fractured Cortes. For almost 260 now days Spain has been under a ‘caretaker’ government.

Perhaps it doesn’t much matter. Several European countries have been for quite some considerable length of time under caretaker or ‘technocrat’ governments. But I assume that the premise of the discussion is that governments matter and that it matters that the voters should decide who governs them.

Coyne concedes that there have been only four ‘changes of power’ in Germany. But again neglects to mention that only once in the 67 year history of the German Federal Republic have the governing parties been replaced as a result of an election. In 1998 the Christian Democrat/Free Democrat coalition was replaced by a Social Democrat/Green coalition. The other changes were when grand coalitions of the Christian Democrats and Social Democrats were formed, rejecting the apparent choice voters were offered at the election, or broken up, leaving half the bums in power, and when the Free Democrats, a small party, shifted their support and exercised the disproportionate power PR gives small parties.

Coyne accuses us of amnesia for forgetting that nine of the last twenty elections in Canada have produced minority governments. My memory actually goes back farther to Canada’s first minority government from 1921 to 1925, which went swimmingly as the second party, the Progressives, refused to form the opposition and Mackenzie King governed without difficulty. And we all remember the Pearson minority governments, which, whatever you think of them, were highly productive, and stable. Pearson called an election in 1965 in an unsuccessful attempt to get a majority. And our minority governments are responsible. We know whom to blame if they go badly and whom to credit if they go well. Coalitions under PR cannot be held responsible. They don’t stand for election. A bunch of parties stand for election and how they may coalesce after the election is a great unknown.

It is an odd thing for a proponent of PR to complain of minority governments. As most often no party has a majority under PR and a coalition the voters never got to vote on is formed.

But Coyne’s quarrel with minority government in Canada is that parties have an incentive to precipitate an election that they might win. He writes of what he calls ‘the high degree of leverage characteristic of FPTP.’ By which he means the leverage the voters have. Their ability to decide who governs. ‘Under PR, by contrast, there is no such leverage, and no such incentive.’ You bet. Voters can shuffle about between parties but it makes little difference. So parties are left to shuffle about amongst themselves without elections.

Deciding between electoral systems requires looking into the principles on which they are based and the details of how they work. I have done that in the paper to which Coyne refers. Only FPTP makes sense and allows voters to decide who will represent them and who will govern them. All the alternatives are misconceived efforts to do better than best. The common problems that opponents of electoral reform fairly point out result directly from the misconceptions of electoral reform. Some times countries manage despite PR. And, yes, some times countries get in a muddle with FPTP. But with FPTP countries can get out of their muddles, while with PR countries can become permanently stuck.

Electoral reform gets very technical. The media have so far spared you the details. You can skip all of it if you prefer and stick up for the way we vote now. Which brought you the Trudeau government, of which, by the latest polls, two thirds of you approve. Despite, not because of, its commitment to preventing you from deciding whether to keep it or throw it out in future elections.

Justin obliges the Supreme Court appointments squawkers without thinking

Pierre Trudeau appointed ten justices to the Supreme Court of Canada and made two of them Chief Justice.

He did it the old fashioned way. There was no ‘process’ and no ‘transparency.’ He just announced a name. But there was 100% accountability. If you didn’t like the appointments, you knew whom to blame.

His son says this won’t do. He writes in The Globe and Mail, which apparently serves him as his official journal, that ‘the process used to appoint Supreme Court justices is opaque, outdated, and in need of an overhaul.’

What has happened to make Pierre Trudeau’s way of appointing judges ‘outdated’ and so on?

In the last three decades an incoherent crescendo of squawking from law professors and politics professors and politicians who affect to be high minded and media pundits has demanded that what they insist on calling a ‘secret process’ when, as with all other practices for filling positions except elections, it is simply confidential, must be changed. To what end and how they do not agree. But the ever obliging, never thinking, Justin Trudeau has decided to give them everything they want.

A paradox of the squawk is the general agreement that the justices we have as result of the ‘outdated’ process are about the best justices there ever were anywhere, led by Chief Justice Beverley McLachlin, whom Trudeau quotes.

A seven strong Independent Advisory Board will come up with a short list of names to fill the vacancy created by the retirement of Thomas Cromwell. The Board is instructed in bureaucratic flannel to find saintly geniuses, of whom there are none in Canada, and set out in the same bureaucratic flannel how it determined that its choices qualify. They report to the Prime Minister and how much of their reasoning will be made public is unclear. Though The Globe can be relied on to winkle out any ‘secrets.’

The process is based on applications. Anyone who would apply to be a justice of the Supreme Court of Canada would show disqualifying conceit and ambition. ‘Woe unto them that are wise in their own eyes, and prudent in their own sight!’ Isaiah 5:21

But the Board is to ‘actively seek out qualified candidates and encourage them to apply.’ Whether that means that they are to send out a circular to everyone legally qualified, which, oddly, includes me, though I haven’t practiced law for fifteen years and am not a member of the Law Society, is unclear. If it means that they are to solicit applications from distinguished judges and eminent counsel, it means those will not be asked whether they are willing to serve, but whether they are willing to demean themselves but pitching their qualifications to the Board.

The Board is made up of the usual suspect ‘non-partisan’ worthies. We had not heard of the Right Honourable Kim Campbell for many years, but one can see the non-partisan optics. Some, like Jeff Hirsch, President of the Federation of Law Societies of Canada, are practically ex-officio. Others, like Susan Ursel, winner of the Canadian Bar Association’s Sexual Orientation and Gender Identity Conference Hero Award in 2011, are ideological operators.

But those who agree to serve on the Board as accredited worthies show themselves unfit to advise on who should be our next Supreme Court justice. They have accepted ‘power without responsibility.’

Justin can’t give quite everything some of the squawkers want. John Robson and opposition MPs complain that Parliament won’t get to vote on the appointment. But, as they should know, the power of appointment under the Constitution lies with the the Governor General, who will act on the advice of the Prime Minister. As the Prime Minister’s father was effectively the ‘seal of the framers,’ the Constitution can’t be changed.

MPs will hear from Campbell and the Minister of Justice how what is, wrongly, being called the ‘nominee’ was chosen and quiz her or him under the tutelage of a law professor. Will they be told how unsuccessful applicants fell short of the ideal? That should do wonders for the administration of justice.

Trudeau writes ‘The appointment of a Supreme Court justice is one of the most important decisions a prime minister makes. It is time we made that decision together.’ But we are not, as we should not be, going to make the decision together. Trudeau is farming out the decision, not to make it accountable, but to make himself unaccountable for any dud they may come up with. As with so much of modern rational administration and politics it doesn’t matter what the result is so long as you follow the correct ‘process.’

The best prospects for the Court will be put off by the process. Those who submit to it will be tainted by it. It will lower the quality of the judges who serve on the Supreme Court of Canada, while for a time enhancing their corrupting prestige.

David Cameron, the referendum and the decay of democracy

David Cameron’s hasty departure from 10 Downing Street was marked by a merry last Prime Minister’s Questions and Cameron humming a cheery little tune. There was talk of his ‘legacy,’ besides the Brexit mess that was the reason for his departure.

At the same time there was commentary on the theme that referendums, which seem to many perfect democracy, are undemocratic. Just giving the voters what they want won’t do. Politicians must ‘deliberate and come to an informed decision’ and stand or fall on it.

The Brexit referendum was a logical step in Cameron’s political career, and it is that career that those interested in the workings of democracy should be reflecting on rather than the merits of referendums, which pundits have no objection to when the voters do as they are told.

Cameron was the almost perfect type of the modern politician for whom politics is all about winning elections and government is just stuff you have to do if you win them, always with an eye to winning the next.

He was chosen leader of the Conservative Party in 2005, aged just 39 and only four years an MP, as the man who could win elections, which his three predecessors evidently could not.

Everything he did could be fully explained as calculated to win and retain votes. He passed his first test in winning the 2010 election, though many might have thought he failed in not winning a majority against Labour, tired after thirteen years in office and led by the far from popular Gordon Brown. But for Cameron the need to form a coalition with the Liberal Democrats may have been no disappointment. It protected him from Conservatives who wanted a conservative government. And, at the LibDems’ insistence, Parliament was rigged by fixed election date legislation to assure that the coalition would survive and he could enjoy being Prime Minister for five years with happy LibDem ministers.

For forty years the Conservative Party was torn by divisions between those who thought the European Union and its predecessors were good and the inevitable future and those who were sceptical and opposed to the ever increasing power of the European Commission in Brussels. Cameron and his predecessors managed to stifle the Eurosceptics, always a minority of Conservative MPs, though not of Conservative Party members and voters. But the effective silencing of Conservative Eurosceptics discouraged conservative voters and led to the rise of UKIP, which, under the lively leadership of Nigel Farage, saw its popular vote rise to 12.6% in the 2015 election.

For Cameron, Brexit was simply an issue of votes. Most, though by no means all, of UKIP’s voters would have been Conservative voters in earlier elections. Purely to staunch the loss of Conservative votes to UKIP, Cameron promised in 2013 that there would be a referendum on the EU if the Conservatives won the 2015 election. To the Eurosceptics in his base Cameron said ‘If the voters want Brexit, they can have it.’ assuming that in the face of the establishment consensus that the EU was a good thing the voters would vote to Remain. And also, it is speculated, assuming that he wouldn’t win a majority and the LibDems, perfervidly pro-EU, would prevent him from keeping his promise.

But UKIP took a serious number of votes from the Labour Party under its feeble leader Ed Miliband and the LibDems’ vote collapsed to less than UKIP’s and Cameron won an unexpected majority and felt bound to go ahead with the referendum.

Had Cameron been interested in government rather than votes, he could have seen that the EU is less than perfect and applied himself to reforming it, thus placating Conservative Eurosceptics and undermining UKIP. It was a project in which he would have found many allies amongst other EU members. But Cameron, like most politicians now, didn’t think about government. He took his thinking from the consensus of bien pensants whose horror at Brexit has been reflected in the media around the world. For them, those opposed to Brussels, were, as a Conservative Party chairman was reported to have said, “Swivel-eyed loons.”

Cameron wasn’t against Brexit because he thought the EU was good. He was against Brexit because he thought he couldn’t win an election on a Eurosceptic platform. On that assessment he assumed that Remain would win.

Because he had never thought about what may be good and what may be bad about the EU his campaign for Remain was a mindless fear campaign, saying practically that Britain couldn’t leave the EU, and possibly backfiring.

It might seem that the modern politician, shopping for votes, is the triumph of democracy. And that asking the voters what to do in a referendum shows them at their best. But the only way for democracy to work is for politicians to think about government and stand for what they think and win because they have thought well and persuaded people to agree with them. When politicians don’t think about government but only about votes, democracy decays.

That’s what’s happening now. The referendum was only a symptom.

Tony Blair as he appeared in 2004 - The Cool Son Thatcher Never Had

Philip Stephens' Tony Blair is expressly addressed to Americans. He wants to answer their question: "Who was this British Prime Minister who was ready to risk his own political career to go to war alongside President George W. Bush?".

Canadian readers are probably more aware of British politics than Stephens' intended readers. We understand parliamentary government. It is disconcerting to find that New Democrats refers to Bill Clinton and his supporters. Nonetheless Stephens' book, more extended magazine profile than full biography, is a good brief account of Tony Blair's life and career to date.

Blair's rise to the leadership of the Labour Party seems both effortless and unaccountable. From a middle class family, his father a Tory, at Oxford he showed little interest in politics giving his spare time to lame efforts at playing the guitar and goofy ventures in managing bands. After Oxford Blair found a place in the law chambers of Derry Irvine, until recently Blair's Lord Chancellor. Irvine did a lot of work for unions and was well connected with Labour Party barons. Blair joined the Labour Party. It must have seemed the right thing to do. But Stephens reports no signs that Blair had any deep political convictions or even burning ambition.

Young Blair's most noted step was to be confirmed as an Anglican in 1975.  His "Christian faith" is made much of by Stephens but it remains vague and seems to come down to a conviction that he is called to "do what is right". Stephens says he is not writing hagiography but he is highly sympathetic to Blair. He admits that Blair can sound preachy and sanctimonious but he takes Blair's relentless assurances that he sincerely believes he is doing what is right at face value.

In 1983, like an 18th century lord handing out a rotten borough, Irvine arranged for Blair to run in a Labour safe seat. At Westminster Blair spoke for various left-wing positions that he would jettison in the 1990's but his chief interest was in making Labour electable. Much work in taming left-wing factions and reducing union domination of the party was done by Blair's predecessors as leader while Blair became an opposition star in a party of union hacks and loony leftists.

When Labour leader John Smith died suddenly in early 1994 Blair and Gordon Brown, a dour but bright Scot who serves as Blair's Chancellor of the Exchequer, were the contenders to succeed him. At a fabled dinner at the Granita restaurant in trendy Islington, Brown agreed not to run for the leadership. Whether, as has been widely reported, Blair agreed to step aside for Brown after two elections, Stephens does not say.

Blair persuaded his party to drop its pious commitment to "common ownership of the means of production, distribution and exchange". He was able to reassure middle Britain that he was in Paul Johnson's phrase, "the son Margaret Thatcher never had" while persuading the young that "Cool Britannia" was coming.

In power Blair left Thatcher's legacy untouched. Image and spin was the big change from the Major years. The domestic innovations of Blair's first four years were constitutional changes made either from political necessity in the case of Scottish devolution or to be " cool" in the removal of most hereditary peers from the House of Lords without thinking what should follow and the incorporation into British law of the European Convention on Human Rights, which threatens Britain with Charter like rule by judges.

Stephens' main concern for his American readers is Blair's role as a world leader. Blair's first important foray into international affairs was Kosovo. Kosovo was pretty much a fiasco but Blair's resolute conviction that NATO was doing what was right perhaps helped to keep it from being a complete fiasco.

Over Iraq Blair had been a hawk even in the Clinton years. Stephen's account of Blair's dealings with the factions in the Bush administration, Cheney and Rumsfeld seeing the British as a tiresome distraction, Powell and Rice working closely with them, Bush making the final calls, is the best meat in the book.

In domestic politics Blair's stand on Iraq was not as courageous as some think. The revolt in Labour ranks was never a threat with Tory support assured. When the fighting started and after victory came the war became a political asset.

The Kelly affair bizarrely threatened to deplete this asset. Six years of media management and spin caught up with Blair. Like the boy who cried "Wolf!" he was suspected of faking it when his conviction was probably at its strongest.

The Hutton Report's clearing of Blair removes any immediate political danger but public trust in him has been permanently damaged. Unlike Stephens' American audience, for whom Blair is a new friend, the British public may be tiring of Blair's relentless effort to persuade them that he is their friend.

In domestic politics Blair presents a curious parallel with Brian Mulroney. First interested only in winning elections and afraid to do much, he has now decided on a few right things to do and is prepared to take big risks to do them. Labour has poured money into public services but the public remains dissatisfied. Blair now plans to make changes in how public services are organised and funded. His plan to raise university tuition fees was the first big test of the new Blair. He barely passed it. It is as a national leader and not a world leader that history will judge Tony Blair and it will be what he can do in Britain in the next few years that will form the basis of that judgment.

This appeared in The National Post on February 28, 2004.

How letting party grassroots choose party leaders has left Britain leaderless in a crisis

The announced departure of David Cameron as Prime Minister of the United Kingdom and leader of its Conservative Party, in October, is a brutal illustration of the damage that the modern fashion for parties outside Parliament, by whatever involved process, choosing parliamentary leaders has done to parliamentary government.

Cameron is right to go. His campaign for Britain to remain in the European Union was based largely on the argument that Britain can’t leave the EU. It is now the principal task of the Prime Minister of the UK to take Britain out of the EU. He’s not the man to do it.

But the reason he must go is the reason why he should go now, not in four months.

The reason he won’t go now is that in common with many parliamentary democracies, with Canada leading the way, Britain has handed over the the role of choosing who should lead the parties’ members in Parliament to party members outside Parliament.

It wasn’t always so. Churchill became Prime Minister in May 1940 because King George VI was persuaded he was the man most MPs wanted. He only officially became leader of the Conservative Party some time later.

When Sir Anthony Eden resigned in 1957 and Harold Macmillan in 1963 the Queen was persuaded by Conservative elders that Macmillan and Sir Alec Douglas-Home respectively had the support of most MPs and appointed them Prime Minister.

When Sir Alec was defeated in the 1964 election and resigned as leader he set up a procedure for Conservative MPs to choose a leader, to save the Queen from the embarrassment of having to figure it out herself. By this procedure Ted Heath was chosen leader in 1965 and then, famously, Margaret Thatcher in 1975. And, perhaps even more famously, Thatcher was replaced in 1990 by John Major, by a vote of MPs.

After Major’s defeat by Tony Blair in the 1997 the Conservatives went through three leaders chosen by various procedures. One of them Ian Duncan-Smith, a Brexit champion, was the first chosen by a procedure involving party members. It took three months. Previously it had been a matter of days. He lasted only two years and never even got to lead his party in an election. Finally in 2005 a mish mash party procedure chose David Cameron as the bright boy who knew how to win.

Cameron had already announced he would step down before the next election, scheduled for 2020. He never said he’d step down if Britain voted to leave the EU, as that risked making the referendum about him rather than Brexit. But as he proved in the referendum to be not a winner but a loser he had to go.

Pandering to vague concepts of grass roots democracy while the Conservative grass roots have shrunk from a peak membership of near three million in the fifties to around 150,000 now the Conservatives will choose their new leader by letting MPs choose two candidates and the fluid membership choose between them. The process should take three months. Hence Cameron’s long goodbye.

In the meantime, during perhaps Britain’s greatest crisis since the war, it will be effectively leaderless, all to assure that the dwindling grass roots should have their say while the MPs voters elected cool their heals in waiting.

It is hard to imagine a similar situation arising in Canada, but a year ago few in Britain imagined its situation now. As we have allowed that not MPs but some months to year long party shenanigans should choose party leaders and even Prime Minsters or Premiers we have ceded the power of the MPs we elect to choose party leaders and who will govern us and must wait on party proceedings to know who are leaders may be.

Churchill used to like to observe when he met with Roosevelt and Stalin that he was the only one who could be replaced in a day, as he had become Prime Minister in a matter of days. Had present practices applied in 1940 it would have taken three months to be rid of Chamberlain and Britain might never have had its ‘finest hour.’

When in the ordinary round of politics leaders step down after an electoral defeat, or retire or drop dead, it all seems to work, though it produces dictatorial leaders, of which many rightly complain, but when leadership is most needed it can leave parties and governments leaderless.

There is nothing undemocratic about letting MPs choose their leaders. We elect them and their biggest responsibility is supporting a government or an alternative government in an opposition party. For that they are answerable to the voters.

There is little democratic in allowing a small amorphous subset of voters to intervene and choose leaders. To whom are they answerable?

The Labour Party’s Jeremy Corbyn was chosen by about 400,000 Labour ‘supporters,’ less than 1% of the electorate, to lead MPs most of whom can’t stand him. The party is falling apart.

So Britain is not just without a leader. I doesn’t even have an opposition. And Parliament at Westminster will for the next few months have less say on how Britain is governed than the sham European Parliament at Strasbourg.

The unreality and reality of the BREXIT vote

Until polls a few days ago began to roil the markets the referendum on whether Britain should leave the European Union had an air of unreality about it.

Everyone understood that David Cameron’s promise to hold a referendum on BREXIT was a ploy to smother divisions in the Conservative party between Eurosceptics, who don’t like the EU, and Conservatives who either think the EU is wonderful or just something post-imperial Britain must live with. Cameron and smart people expected Britain would sensibly vote to remain and the Eurosceptics would be put in their place. Somewhere round Coventry.

Cameron undertook to negotiate a deal with the EU to placate his Eurosceptic wing, but, as the prospect of a BREXIT was not taken seriously and Cameron had no serious ideas about what would make the EU less objectionable to Eurosceptics, all he got was a vague letter from the former Polish Prime Minister Donald Tusk who fancies himself as the President of Europe.

In Britain and abroad the referendum has seemed to be about the economy and immigration. For the Leaves the fact that around 500 million Europeans are free to come and live in Britain with practically all the privileges of those who were born there is upsetting. Add to which, Germany’s admission of upwards of a million migrants opens the prospect that anyone any country in the EU chooses to welcome may before long turn up in Neasden.

For bien pensants in Britain and the rest of the world this makes Leave supporters bigots and the issue is immediately settled.

The Remain campaign has argued that BREXIT would be a disaster for the British economy. They seem to be saying that Britain simply can’t leave the EU. Which raises the question why the voters are being asked whether they’d like to. Ask a stupid question and you may get a stupid answer they might have thought.

The question is not whether Britain should leave Europe, as it is often put. Europe is a geopolitical fact. The question is whether Britain should leave a particular institution, the EU.

Undoubtedly Britain’s leaving the EU would be a great disruption and how it would work out is uncertain. Markets hate uncertainty and that is enough to explain their recent behaviour. But it does not settle the question of whether Britain would be worse off, better off, or much the same economically outside the EU. That all depends.

The case that Britain would be worse off assumes that on leaving the EU it would be cut off from much of its trade with the rest of the EU. But that assumes that the EU without Britain would follow Bonaparte, the Kaiser and Hitler in trying to put Britain down by cutting her off from trade with Europe. Hardly an assumption that does much credit to the EU.

The idea that the world’s fifth largest economy could not survive on its own is rather a stretch particularly as, on its own, it would be both forced and able to adapt to the world economy in ways that its membership in the EU inhibits.

The uncertainty of BREXIT is compounded by the fact that in the event of a Leave victory it would be Cameron, who seems to believe it is impossible, who would have to negotiate BREXIT. Were he De Gaulle he’d have put his job on the line. But that would have led many who want to be rid of him to vote Leave just to be rid of him. As it is, the referendum has led to acrimony amongst Conservatives that may hasten the departure he plans before the scheduled election in 2020, hoping to cash in as fabulously as Tony Blair has.

But neither the economy nor immigration is the real issue. The real issue is whether 28 countries and 500 million people should be governed by an unaccountable bureaucracy headquartered in Brussels.

We in Canada with our provinces and Ottawa and some sense of who does what and a regular choice in elections of who they should be cannot imagine how the EU works. Most Europeans haven’t a clue. Their national governments apparently continue to function and elections take place and for most of the history of the EU and its predecessors back to the Common Market prosperity with freedom and peace has been general. How far this is because of the EU and how far a coincidence has never been carefully considered. For much of this century the prosperity has been challenged and freedom compromised as Brussels has in some countries effectively chosen who should govern, or at least how those in office should govern, whatever voters may have wanted.

For European elites this if fine. Able bureaucrats and politicians ejected from office in their own countries beaver away beyond the interfering scrutiny of national media, and voters are distracted with increasingly meaningless national politics, while Brussels sees that all is for the best. But increasingly, and not just in Britain, Europeans are thinking that they are not getting what they want, whatever may be best, and BREXIT, if it happens, or even comes close, may give a shock to the whole European project.

Many outside Britain, from Barack Obama to the Pope and Justin Trudeau and most commentators, have said Britain should remain in the EU. They would be more circumspect in saying whether Scotland should leave the United Kingdom or Quebec leave Canada. They should ask themselves how they would like to be governed as the EU largely governs Europe.

That’s the real question voters in Britain are faced with on June 23.

While the Conservatives go through grotesque American style proceedings to choose a leader Canada is a one party state

For the first and perhaps most critical year and half of its time in power the Liberal government will face no opposition. Such is the consequence of the complacently accepted proceedings by which our political parties choose to choose their leaders. And sideline the MPs we elect and whom leaders lead.

The nominal Official Opposition, the Conservative Party, will choose a new leader on May 27, 2017. Members of the party in good standing at March 28, 2017 will vote.

A spending limit of $5,000,000 for leadership candidates implies that Conservatives will for the next fourteen months be putting their money towards puffing their candidates and dissing their rivals rather than calling the Liberals to account and building a war chest for the next election.

It also implies that the new leader may be someone who might have to spend millions to make him or herself known to party supporters and rustle up new members who may not even be party supporters. Is the best new leader not one of a handful of already well known Conservative MPs? Might anyone become leader, a Trump, or a Corbyn?

The attention of the media and Conservatives and politics fans will be on the leadership race. We may not be treated to the sordid spectacle the Republicans have presented in the States, but the candidates will be preening themselves and claiming to have new ideas, which conservatives are not supposed to have, and set a new direction for the party.

What new direction does the party need? Doesn’t it stand for fiscal responsibility, low taxes, government lite, a foreign policy based on Canada’s historic national interests? ‘Direction’ is nothing more than tactics, what to emphasise, whom to pitch to, image, all of which depend on the political conjuncture, which will be one thing in May 2017 and another thing at the next election.

Rona Ambrose was quickly chosen by Conservative MPs and Senators as Interim Leader and well received. But the understanding is that by accepting the interim leadership she has barred herself from becoming leader. Perhaps she would be the best to lead the Tories in the next election. But she mustn’t. The better she performs as interim leader the more poignant the position becomes.

As a ‘caretaker’ leader, Ambrose must cut a wan figure and not upstage the new leader when she or he is chosen. Freed of the reportedly tyrannical leadership of Stephen Harper and surveillance by the PMO Conservative MPs seems perfectly disciplined in marking time until they get their marching orders from the new leader.

In the meantime the party must be a ‘generic’ opposition, scoring points where it can.

The Saudi arms deal was a Conservative achievement. Now they are in opposition they question it. Most of the Liberal platform consisted of pledges to undo things the Conservative government had done. The Conservatives in opposition pick and choose what to make an issue of: stand up for financial transparency and secret ballots for unions and CF-18s bombing ISIS, keep quiet on the long form census and door to door mail delivery.

Those who can remember more than a few months ago may remember the rapturous reception of Michael Chong’s Reform Bill, supposedly empowering MPs to unseat their leader. It was to restore democracy to Parliament Hill. But even had Chong’s bill been passed as he originally presented it, a leader invested by the votes of party members and irreplaceable without a year long contest would have been impregnable.

The new leader of the Conservative Party will not lead me, a member of the party as I have already disclosed. He or she will lead the MPs in the Commons. They should choose who will lead them, rather than patiently wait until the amorphous membership presents them with a leader.

The Opposition is supposed to be an alternative government. What should we do if the Liberals only had a minority, or a small majority subject to erosion by by-elections and defections? If the government fell, there would be no alternative government ready to take over or to fight an election.

Justin Trudeau is Prime Minister because a majority of MPs support him in that role. He has no term, despite many media references to Prime Ministers’ and Premiers’ terms. It’s not going to happen, but it at least should be possible that MPs might think differently and want to support someone else as Prime Minister. That the Liberal Party might split. But at least until May 2017 the Conservative Party is not an alternative government. Nor an opposition. We have for now a one party state. With a complementary personality cult.

Airhead Justin is entitled to no more respect than he earns

Matt Gurney thinks we should treat Prime Minister Justin Trudeau courteously, ‘with the respect [his] office deserves.’ Happily, our institutions require no such inhibition on free and vigorous political speech.

‘Prime minister’ is a job description. Historically it wasn’t even official. Britain’s Sir Robert Walpole, the first ‘prime minister,’ was officially First Lord of the Treasury, but as the man who presided over meetings of ministers and dealt directly with the King, he came to be called the ‘prime minister.’

Over time references to the Prime Minister have crept into legislation and regulations in Canada. But there is no reference to the office in the Constitution.

The Prime Minister is the most powerful politician in Canada. But as such he is entitled to no more respect than he has earned, and people will naturally differ on that.

Parliament, the Courts, the Crown, are institutions we should respect as fundamental elements of our country. The Queen, the Governor General, and judges deserve our respect because of their positions. Whatever we may think of them as individuals. There is ceremony and protocol to embody that respect. While there are procedures in place to assure that the Prime Minister can do his work, there is no ceremony and protocol prescribed for him.

The quasi-inauguration Justin Trudeau laid on for himself in November, only extending the practice of his recent predecessors and many premiers, confuses this aspect of our political institutions and culture.

As does an insistence that he should be referred to respectfully as the Prime Minister rather than Justin, Boy Trudeau, the airhead or whatever takes your fancy.

Trudeau is recently returned from his visit to Washington where he was treated to a guard of honour, a 19 gun salute and a ‘state dinner.’ Foreign leaders may want to lay on ceremony for prime ministers to butter them up or just for the fun of it. Stephen Harper treated Benjamin Netanyahu more like the President of Israel than its Prime Minister on his visit to Ottawa in March 2012. But we should not allow this to confuse us.

Trudeau, like Netanyahu, is a ‘head of government,’ not a ‘head of state.’ Countries differ in their handling of the two roles, one with power and work to do and answerable for it, the other representing the whole country to itself and the world. In most countries they are separate roles with a monarch or president with a limited role in government and a prime minister, whatever the title from Chancellor in Germany to Taoiseach in Ireland, with power and responsibility and work to do. In the United States, France, Russia and Latin America the roles are combined. Even in the present envenomed state of American politics some of Barack Obama’s harshest critics grant him some respect as POTUS. The combination of the roles leads both to politicians exploiting their role as head of state for political advantage and loss of respect for the state when they go bad.

We should understand and relish that we have got it right in separating the roles in Canada and not let Justin Trudeau’s celebrity and partisan hoopla confuse us.

There is much to be said for a civil tongue in politics, as in all of life. But there is no reason why we should be more civil about Justin Trudeau because he happens to be the Prime Minister than about anyone else. Are we asked to be polite about Rona Ambrose because she is the Leader of Her Majesty’s Loyal Opposition. Or Tom Mulcair because he once was?

When Trudeau goes abroad on our tab, he is not there to ‘represent’ Canada with a pretty face and a pleasant manner. He has work to do, or he should be back at his desk in Ottawa. We should hope that he does the work well, but should be watching him critically to see whether he does. We should not be distracted by ceremony and photo ops.

People think it’s clever and daring to be rude about the Queen. They shouldn’t, but no one seems to object and there is enough silly gush to balance their rudeness, though ‘Two wrongs don’t make a right.’ If people want to be rude about Trudeau, it’s their right. They may be cleverly rude or stupidly rude, but it’s all part of free speech trying to come to grips with the character and work of the most powerful politician in the country so that MPs in Parliament and voters at the next election can judge him.

Global Affairs Canada takes on the Work of the World

When Jean Chrétien became Prime Minister in 1993 he changed the name of the Department of External Affairs, as it had been known since it was founded in 1909, to the Department of Foreign Affairs.

It had been called External Affairs for 84 years on the thinking that Britain, or Australia and other parts of what became the Commonwealth, were not foreign countries, as the United States or Paraguay were. The distinction is maintained in Britain to this day in the name of the Foreign and Commonwealth Office. Canada was part of a family of countries and only those outside the family were foreign.

Chrétien would have none of that. To assert Canada’s independence Britain, and Australia, must be foreign countries.

Now Justin Trudeau has rebranded Foreign Affairs as Global Affairs.

The rebranding hasn’t been much noticed. And the department, whose full name was Foreign Affairs, Trade and Development, still covers those three things and has a minister for each. Stéphane Dion is not the Minister for Global Affairs but the Minister for Foreign Affairs.

The implications of the rebranding are obscure but disturbing.

‘Global Affairs’ has until now been a questionable university subject, and perhaps a field for think tanks. Its most famous use in Canada has been at the Munk School of Global Affairs at the University of Toronto. Students there may aspire to serve Canada as diplomats, but for many a career at the UN or some other ‘global’ organisation may be more attractive. An understanding of Canada, which is essential for anyone who might serve Canada either at home or abroad, is secondary.

Transferred from the academy to government, ‘Global Affairs’ implies that the department is no longer concerned with Canada and its relations with other countries but with the Globe, of which Canada is only a rather small part. While Chrétien’s name change sought to assert Canada’s independence and identity, Trudeau’s rebranding implies almost the opposite. The people who work at Global Affairs are not there to serve Canada, but the Globe. In the phrase of the O. D. Skelton, Undersecretary of State for External Affairs from 1925 to 1941, they should occupy themselves with the ‘work of the world.’

Mackenzie King, who hand picked Skelton for his job, relied on him, but served as his own Secretary of State for External Affairs and kept a tight leash on the department, despite Skelton’s lobbying for expansion, and more missions abroad. After the Second World War, as External Affairs grew by leaps and bounds, King became concerned that it would busy itself with matters beyond Canada’s needs and interests. But soon he was gone and External Affairs did just that.

The people we pay at Global Affairs are there to serve us. And the politicians we have sent to Ottawa are there to tell them what to do and are accountable for what they do. But the message of Trudeau and Dion to our diplomats has been that they are ‘unmuzzled’ and are to ‘engage.’ Engage in what? What are our interests? What is our foreign policy? Does the government have one or are they leaving that to the public servants in Global Affairs?

What are the interests of our diplomats? Are they in the service of Canada or the Globe, or themselves?

The unseemly cheers with which Trudeau was greeted by public servants when he dropped in at Global Affairs two days after he was sworn in may have been partly just an expression of late onset Trudeaumania. But it may also have been glee at the prospect that they would now be free to occupy themselves with the exciting work of the world without having to answer to the people who pay them and whom they are there to serve.

Trudeau spent much of his first weeks in office on summitry, and most exciting it must have been for him. Such summitry seems unavoidable, though it is mostly a distracting waste of time. Particularly at Paris it may have seemed that he was part of the government of the Globe.

But there is, happily, no government of the Globe. There are no Global Affairs. There is, for us, only Canada, with its Foreign Affairs. Our public servants should understand that and do the work of Canada without being seduced by the conceit of the ‘work of the world.’

Our commander in chief Justin issues his orders

Justin Trudeau’s ‘mandate letters’ to the newly sworn in cabinet ministers have been generally well received. In the letters he tells the ministers to be good and to get to work on fulfilling the Liberals’ campaign pledges.

I confess I do not recall hearing of mandate letters before Trudeau’s were released on November 13. Apparently they have been used before in Ottawa and several provinces. It was news that they were being published, as Kathleen Wynne had published her mandate letters to Ontario ministers on September 24, 2014 and Jim Prentice published his to Alberta ministers shortly before. Publishing the letters seems now to be the practice. What unpublished mandate letters were in earlier years sent to ministers in Ottawa and the provincial capitals and what they said is unclear.

They have, in part, the look of a management school exercise. Mission statements and business plans and other forms of putting good intentions on paper are big in management schools. If you can put together the paper that would get you straight As in management school, you may be thought to have done well whatever actually happens in the organisation you are supposed to be running.

Trudeau’s letters are also political propaganda, something that might not get an A in a management school:

“We have promised Canadians a government that will bring real change – in both what we do and how we do it. Canadians sent a clear message in this election, and our platform offered a new, ambitious plan for a strong and growing middle class.”

But what is most striking, and should be disturbing, about the mandate letters is the presumption of Justin Trudeau issuing orders to cabinet ministers. The letters have been described in the press as his ‘marching orders.’ Their tone is grossly condescending: ‘I will expect you….’

The Prime Minister has no legal or constitutional authority to issue orders to cabinet ministers. The old idea was that a prime minister was simply a primus inter pares, a first among equals. Departmental ministers have legal authority to make regulations and take other actions, but the Prime Minister has very little legal authority himself. All he can do is advise the Governor General to do things, which, so long as he, and the ministers who serve with him, have the confidence of the House of Commons, the Governor General will do.

But the principle of cabinet government is collective responsibility. Ministers are not supposed to do things because the Prime Minister tells them to but because they have confidence in each other and see things the same way and have had a chance to talk things over in cabinet and come to a consensus. If the Prime Minister tells a minister she should do something she doesn’t think best, she may decide not to make an issue of it, if she can see how to make a case for it, or she should resign. She can’t say, either now, or in her memoirs, ‘I thought it was a bad idea, but the Prime Minister ordered me to do it.’

Of course ministers on taking office will require extensive briefing on what their responsibilities and powers are and what issues they may have to address and what procedures they should follow. The civil service will have seen to that. But ministers do not require orders from the Prime Minister to get on with their work. If Trudeau had any doubts whether any of them were up to the job, he should not have advised the Governor General to appoint them.

All this may seem rather pedantic and abstruse. But it is actually central to the much canvassed issue of the overweening power of party leaders and the Prime Minister in our politics. In assuming a presidential prerogative to issue orders to what he must consider ‘his’ ministers, Trudeau assumes supreme authority. For all his talk of ‘real change,’ less than ten days after he was sworn in he was acting on the theory that Canada is an elective dictatorship.

The publication of Trudeau’s mandate letters has been hailed as an exercise in ‘open government.’ If we are to take it that Ministers of the Crown have been outed as the Prime Minister’s minions, perhaps that it is a good thing. But if, as seems to be happening, it celebrates the Prime Minister’s supreme authority, it is not.

Whatever letters Stephen Harper wrote to cabinet ministers, they were not subject to the indignity of having their subordination publicised.

Who, we might ask, has sent Justin Trudeau a mandate letter telling him how he should conduct himself?

Justin's Inauguration

We are generally encouraged to be wary of American culture and its potential to overwhelm our own and lead us from living our own way.

It is one of the arguments for subsidising our culture and for the CBC that they may assure that we carry on as we are and not as Americans do.

But when it comes down to it, we can't seem to escape aping the Americans.

Justin Trudeau's public celebration of his swearing in on November 4 demonstrated this painfully. It had the air of a presidential inauguration.

It follows a practice that has grown up over many decades in Ottawa and the provincial capitals. Rachel Notley’s carnavelesque swearing in as Premier of Alberta in May was a new high point.

The inauguration of a President of the United States became a big public ceremony early on. Thomas Jefferson was criticised for walking to his first inauguration in 1801.

But the American President is the head of state of the United States of America. His is a very different office from that of Canada's Prime Minister. Rightly or wrongly, a President of the United States is granted some respect and even loyalty as their First Citizen and Commander in Chief. Even in the present bitter politics of the United States Barack Obama’s harshest critics show him a kind of deference because of his office.

Our Prime Minister is simply our most important public servant, who has work to do. We owe him no deference or loyalty.

He must go through certain formalities to get his authority. Those formalities involve some ceremony.

People expect ceremony to be public, but it needn’t and shouldn’t always be. The purpose of the formalities was to vest Trudeau, and the ministers, with their authority, and, most importantly, to impress upon them their responsibilities.

This cannot happen if the formalities are turned into an official public celebration. Many Canadians, myself included of course, see nothing to celebrate in Trudeau becoming Prime Minister. Quite the contrary. We accept it as our lot, and hope for the best, but we should not have to see the prestige of the state invoked to rub our discomfiture in our faces.

Liberals could and did celebrate their victory on election night. We have nothing to celebrate as Justin Trudeau becomes Prime Minister. We have only to see that he gets to work and watch him closely as he does.

In the United Kingdom, much of whose political culture we are supposed to have inherited, they still do things as they should be done. The Prime Minister is sworn in by the Queen in private. Ministers are sworn in as the ministry is put together.

They do it all in a few days. While we take weeks to change governments. It has become what the Americans call a ‘transition.’

Trudeau’s inauguration fuels misconceptions about how our government works. The next election is scheduled for October 21, 2019. The likelihood of anything upsetting the schedule or the Liberal government being overthrown before the next election is extremely remote. But legally and constitutionally it is, and must be, a possibility, and we should understand that.

Trudeau has not won a prize he gets to keep until the next tournament in four years time. He has no term. His party won a majority of the seats in the House of Commons. So long as it holds together and Liberal MPs give him their support he will remain Prime Minister.

But what if everything turns sour and a long string of by-election defeats erodes that majority? What if the party splits? Impossible you say. And practically speaking you may be right. But one of the things that makes it impossible, is just that we think it is. Because we no longer understand that it is and should be possible.

And the seemingly impregnable position that Trudeau celebrated on Wednesday is part of the domineering way of our leaders that was held against Stephen Harper and the Liberal platform promised to change.

One wonders what sort of inauguration Trudeau would have planned had he only been leading a shaky minority government. Perhaps much the same. For it serves the purpose of impressing on us that we are stuck with him.

The use of government advertising to publicise the late Conservative government’s programmes was made an issue in the election and Trudeau has promised he won’t do the same. We shall see. But the use of an official ceremony to celebrate himself and his government is an equally objectionable abuse of a government function for party purposes.

We are so used to watching American inaugurations that we expect them here and no one even remarks the impropriety.

Those who are interested will decide. Let them

That as many as 40% of eligible voters may not vote in this election upsets Andrew Coyne and is a favorite theme of those who like to worry about the state of our democracy.

Coyne inclines to agree with ‘research’ he has seen indicating that people don’t vote because ‘they think the parties are all the same, or because all politicians are liars, or because they don't think their vote will change anything.’

I don’t go so far as Coyne’s straw man who thinks low turnout is ‘actually a sign of the ruddy health of our democracy.’ But I do think that ‘research’ that purports to explain why people don’t vote is shaky. Survey subjects are put on the spot, asked to excuse their imputed failure in civic responsibility, and come up with excuses. Most of what they say is encouraged by Coyne himself. He thinks the parties are pretty much the same and politicians say a lot that is untrue. Whether our votes will change anything? I’ll come to that in a moment.

Most of the people I know are interested in politics and likely to vote. Sadly, they will mostly vote wrong, but I try to set them right. The one person I know who I am sure will not vote is bright and curious and interested in big things like the environment and wars and our diverse identities but doesn’t give much thought to taxes and trade and the economy and daycare and I’m not going to try, impertinently and boringly, to change that.

I'm not going to tell anyone to vote. I've already written that conservatives should vote Conservative and socialists vote NDP. The rest of you will do what you think best. If you’re reading this column, you’re likely to vote. Of those who aren’t interested in politics, I think none the less. Unlike the totalitarian democrats I would not force them to interest themselves in matters that don’t interest them, to choose where they are indifferent. I would have them represented truthfully, as not interested, rather than dragooned to the polls to choose frivolously or randomly or spoil their ballots or vote as the bien pensants tell them to.

Coyne’s remedies for low turnout, apart from forcing us to vote, which he kindly doesn’t press as it is, he says, ‘a concept requiring more space to explain than I have.’ - What can he mean? - confirm the confusion underlying the turnout fret.

‘Tone down the vitriol.’ He thinks attack ads discourage people from voting. Attack ads are not designed to get people to stay home. They are addressed to those who will likely vote and designed to steer voters from one choice to another.

And what about toning down the unction? While politicians are dissing their opponents they are just as much trumpeting their compassion and concern to help us all, at least that vast majority who think we are ‘middle class,’ and seem to be running for sainthood as much as public office. The real problem is the hype. But that is a matter of our political culture, to which, as Coyne will admit, the media contribute as much as politicians.

Whatever politicians say that is dishonest they do to get votes. Not to put people off politics.

‘Punish political lies.’ Coyne doesn’t take the space to explain how this would work, but the only way it could would be by involving the courts and thus taking politics out of the hands of the voters. It is for the voters to punish political lies. Too often they don’t. Perhaps because they know in their hearts that they were complicit in the lies. That they voted for what they wanted to hear and would have shunned anyone who spoke the unvarnished truth.

Finally, ‘fix the electoral system.’ By which Coyne means, adopt some scheme of proportional representation by which voting would no longer be a means by which the voters can make decisions and become a opinion sample to be exploited by parties beyond the control of the voters.

There is no evidence that proportional representation encourages turnout. Many countries with PR have higher turnouts, but this can be explained by many things. Most have their elections on Sundays.

What commonly results from PR is that elections don’t ‘change anything.’ The same parties are in power for decades or, as often in Germany, the the main parties that fought the election form a ‘grand coalition’ and what appeared to be a choice of who should govern becomes a matter of both must govern.

I have written at length on the folly of ‘electoral reform’ and there really isn’t space to explain it here. But in a nutshell it is the idea that where there are more than two choices and none may get a majority there is some way of getting a majority by preferential voting or proportionality. There isn’t. It’s mathematically impossible, as Nobel Prize winner Kenneth Arrow explained, and the consequences of trying are elections that don’t ‘change anything’ and disproportionate power for minorities.

But on October 19 upwards of 60% of Canadians, however distracted by the noise of politicians and the media, will make a decision. Unfortunately, Andrew Coyne and the opposition parties want it to be the last time they will.

The Supreme Court of Canada makes up the law

Most Supreme Court of Canada judgments that make the news involve the Charter or the Constitution. But the Court’s judgment in Bhasin, cheerfully reported some months ago, had nothing to do with the Charter or the Constitution. It was an apparently mundane common law contract case, of no interest to anyone but the parties. Even for the parties the result must matter surprisingly little. The $87,000 in damages the Court awarded Bhasin will leave him little better off, after bearing some of the costs and the stress of 11 years of litigation, than if he had not bothered to sue. The defendant is a fair sized business for which some embarrassment may be more important than the damages and large costs is must pay.

The importance of the case is the Supreme Court of Canada ‘making law,’ something courts reportedly do, though how or why is little understood. The Court was very forward in proclaiming that new law was needed and that it would make it. The provincial legislatures are responsible for contract law under the Constitution and have passed many acts altering the common law. But why bother the legislatures when the courts stand ready to pass laws in their stead?

THE CASE

The issue in Bhasin was either quite simple, as the Alberta Court of Appeal saw it in dismissing his case in 11 pages, or wonderfully rich and obscure as the trial judge and the Supreme Court of Canada made it in 90 and 50 pages respectively.

Bhasin had a contract with Can-Am to market Can-Am’s RESPs in Alberta as an ‘enrollment director.’ He was making quite a success of it. Bhasin’s contract was not exclusive and one Hrynew had an identical contract and wanted to merge with or take over Bhasin’s business. Can-Am got on well with Hrynew, and when the Alberta Securities Commission had questions about Can-Am’s operations, it chose Hrynew to deal with the questions. Bhasin objected to Hrynew peering into his business, though there was nothing in his contract or the general law to sustain his objection. In the course of dealing with Bhasin about these matters Can-Am said some things that were not true or misleading and was less than frank with him. There was no evidence that Bhasin conducted himself differently because of that.

Bhasin’s contract was for three years, to renew automatically unless either party gave six months notice that it would not renew it. Can-Am gave Bhasin the six months notice. Bhasin had to close his business and sued.

The Court of Appeal saw it, as it might have appeared to a competent solicitor asked to review the contract, as an open and shut case. Can-Am had invoked the non-renewal term of the contract and that was an end of the matter.

The trial judge had seen it differently. In a three week trial every twist and turn of the dealings of Bhasin, Can-Am and Hrynew with each other and Bhasin’s hopes for his business had been gone into. She found that Can-Am had not dealt with Bhasin in ‘good faith’ and awarded him almost $400,000 in damages on the basis that Bhasin would have made about that if Can-Am had let his contract run until his planned retirement at age 65. As the Court of Appeal pointed out, the effect was to make a three year contract as much as a 40 to 50 year contract for a young enrollment director.

THE SUPREME COURT’S NEW LAW

The Supreme Court of Canada’s new law says that parties to a contract have a ‘duty to perform their contractual obligations honestly.’ Who could object to that? But what does it mean? One might have thought that it would mean that parties must observe the terms of the contract. If I contract with you to deliver two dozen apples on Wednesday it won’t do to deliver two dozen oranges or deliver two dozen apples on Tuesday or Thursday. And if I contract with you to clean my eaves for three years renewable subject to six months notice you must expect that I may give you notice if I think someone else would do a better job or simply don’t like the cut of your jib.

The trial judge had said the parties to a contract must act in ‘good faith,’ referring to specific requirements of good faith in specific types of contract in common law and legislation. The Supreme Court of Canada said ‘good faith’ is an ‘organising principle,’ but its new law is, as I set out above, a requirement of honest performance.

Bhasin’s lawyers argued at the trial that Can-Am had to have a ‘good reason’ not to renew his contract, which doesn’t get us very far. The trial judge neither accepted nor rejected this argument, but held that Can-Am had acted in bad faith in not renewing his contract because he refused to merge with Hrynew. This presumably was a ‘bad reason.’ But why? Can-Am presumably thought their business would do better if Hrynew and Bhasin merged and, finally, if Bhasin went and Hrynew picked up the pieces. It was surely not for the courts to second guess Can-Am’s business judgment.

The trial judge also held that the purpose of the contract was was to ‘allow Bhasin to establish and operate an agency selling Can-AmFC products.’ Well of course that was one of its purposes, but its main purpose was to set the terms on which Bhasin could sell Can-Am’s products, what he could sell, where, following which procedures, for what compensation and for how long. The trial judge implies that that must have been forever, despite the precise wording in the contract on which Can-Am relied. Was it good faith on Bhasin’s part to insist that he be kept on?

The Supreme Court of Canada refers to academic writings on ‘good faith’ expressing dissatisfaction with the requirement of good faith in specific types of contract without a general requirement of good faith. Why should there be a requirement of good faith in employment contracts, insurance contracts and franchise agreements and not in all? The answer is that in these specific types of contract, rightly or wrongly, the courts or the legislatures felt the need and gave it a meaning in the specific context.

Most of the ‘authorities’ cited by the Court were writings of law professors, some by one of Bhasin’s counsel. The Court could not base its decision on old cases or statutes. If the ‘new duty’ it proclaimed could be found in old cases it would not be new.

But law professors, resentful of their light duties in training would be lawyers, spend their well paid spare time musing on what the law should be. Standing apart from the practical world and accountable to no one, they must find fault with the law as it is, what they are supposed to know and teach, and subject it to theoretical correction. Some times, with little experience of the practice of law, they become judges. Their favoured students become clerks to judges all the way up to the Supreme Court of Canada. They mix with judges at select conferences. They review judges’ reasons as they do their students’ essays. The media unthinkingly turn to them for ‘expert’ commentary. The public think when they are telling us what they fancy the law should be that they are telling us what it is.

When courts make law, they do not set it out as legislatures would in a statute, with sections and subsections and definitions. You have to find it in their reasons for judgment. When courts are properly making law, settling an unsettled point, it is usually easy enough to do. But when they are enunciating a broad principle, as the Court does in Bhasin, it opens up endless speculation as to what the law may be or how it will apply in any specific case.

‘Hard cases make bad law’ is an oft quoted old saying. It means that in cases where sympathy may be on one side but the law on the other, courts may be tempted to change the law to suit their sympathy in the case but in doing so damage the law. It is plain that the trial judge and the Supreme Court of Canada did not like the defendants and felt sympathy for Bhasin. Whether this was fair we can’t really know, because the case was not actually about whether Can-Am was nasty and Bhasin nice and the trial might still be going on if it had been. The Court of Appeal evinced no sympathy for any of the parties and simply applied the law as it was.

The Supreme Court of Canada proclaimed its duty to ‘develop the common law to keep in step with the “dynamic and evolving fabric of our society…”’ What exactly has happened to society to demand the new law the Court has proclaimed? Was honest performance of contracts not such a good idea fifty or a hundred years ago? Or is it simply that people were so much more honest then that no legal requirement of honesty was required?

WHAT DOES IT MEAN?

The trial judge found that Can-Am had not acted in good faith in two respects:
261 … First, Can-AmFC breached the 1998 Agreement when it required Bhasin to submit to an audit by Hrynew, and when it required Bhasin to provide Hrynew with access to his business records for this purpose. Second, Can-AmFC breached the 1998 Agreement when it exercised the non-renewal provision in bad faith. Specifically, Can-AmFC used the non-renewal clause because of Bhasin’s failure to submit to an audit by Hrynew, and used the non-renewal clause to force Bhasin into a position where he had to either merge agencies with Hrynew or leave the organization. Can-AmFC acted dishonestly toward Bhasin in exercising the nonrenewal clause. This conduct amounts to a breach of the implied term of good faith by Can-AmFC.

Can-Am ‘breached the 1998 agreement’ in requiring Bhasin to submit to an audit. What provision did it breach? She doesn’t say because it did not breach any provision of the agreement. It only breached the ‘good faith’ provision that she was inventing in 2011. And what specifically that provision meant she doesn’t say except that it didn’t permit Can-Am to require Bhasin to submit to an audit by Hrynew.

And how exactly did Can-Am act dishonestly in invoking a non-renewal provision in the contract that before Bhasin’s case it was entitled to invoke at its absolute discretion?

While one can understand why Bhasin wouldn’t like a competitor whom he obviously didn’t like examining his records and would be upset at having his contract not renewed, there was no evidence that the one would have done him any harm or that the other would not have been as upsetting had it happened, as it might well have, without the long and unpleasant course of dealings between Can-Am and Bhasin that forms the basis of the trial judge’s finding of bad faith.

The trial judge’s basically concludes that Can-Am had decided to rid itself of Bhasin some time before it gave him notice of non-renewal and kept that from him.
256 … The evidence establishes that Can-AmFC decided to restructure by merging the agencies of Hrynew and Bhasin earlier than June 2000. It was certainly open to Can-AmFC in good faith to restructure its organization in Alberta.…It was also open to Can-AmFC to adopt a business strategy that did not include Bhasin’s agency. Can-AmFC certainly was not obligated under the 1998 Agreement to continue the contractual relationship forever.

257 However, Can-AmFC was obligated under the 1998 Agreement to exercise the non-renewal clause in a way that respected Bhasin’s interests to a standard of good faith - this means honestly, reasonably and fairly. This does not mean that Can-AmFC could not use the non-renewal clause to end the contractual relationship with Bhasin. A strategic decision to restructure could be a reasonable use of the non-renewal clause. Can-AmFC was obligated, however, to go about exercising the non-renewal clause and implement the restructuring in a way that respected Bhasin’s interests.…

258 Can-AmFC acted dishonestly with Bhasin throughout the events in question. Can-AmFC did not explain to Bhasin that Can-AmFC was intending to nor that it had already proposed the new structure to the ASC. Can-AmFC did not communicate to Bhasin that the decision was already made and final. Can-AmFC did not communicate with Bhasin that it was working closely with Hrynew to bring about a new corporate structure with Hrynew being the main agency in Alberta. Had Can-AmFC done so, Bhasin could have governed himself accordingly so as to retain the value in his agency throughout the process. Bhasin did not realize he was being pushed out until it was too late.

What ‘good faith’ amounts to in the instance according to the trial judge then is that a party to a contract automatically renewable subject to non-renewal on specific notice, must keep the other party apprised of its thinking on renewal and give notice of non-renewal as soon as it decides not to renew, whatever the specified notice period may be in the contract. There are obvious reasons why reasonable and honest people might not want to do that. They are stuck with the guy for however long the contract says and they’d rather he worked in hopes than knew he was for the chop and slacked off and started looking elsewhere. The whole point of such a contract as Bhasin had was to give the parties a three year’s commitment and an agreed, and reasonable, notice period if they wanted to end the relationship.

The Supreme Court of Canada referred with approval to an American case
[87]…United Roasters, Inc. v. Colgate-Palmolive Co., 649 F.2d 985 (4th Cir. 1981). The terminating party had decided in advance of the required notice period that it was going to terminate the contract. The court held that no disclosure of this intention was required other than what was stipulated in the notice requirement. The court stated:
. . . there is very little to be said in favor of a rule of law that good faith requires one possessing a right of termination to inform the other party promptly of any decision to exercise the right. A tenant under a month-to-month lease may decide in January to vacate the premises at the end of September. It is hardly to be suggested that good faith requires the tenant to inform the landlord of his decision soon after January. Though the landlord may have found earlier notice convenient, formal exercise of the right of termination in August will do. [pp. 989-90]
United Roasters makes it clear that there is no unilateral duty to disclose information relevant to termination. But the situation is quite different, as I see it, when it comes to actively misleading or deceiving the other contracting party in relation to performance of the contract.

So according to the Supreme Court of Canada you don’t have to tell someone as soon as you have decided to terminate a contract, but you mustn’t string him along, let him think everything’s OK when you really plan to terminate. Despite the trial judge’s finding, one may question whether Can-Am did actually decide to terminate Bhasin about a year before it gave notice. If that’s what the case turns on, and it may appear it does, there are two problems. When you actually decide to do something is a tricky psychological question. Some would argue you don’t actually decide to do anything until you actually do it. And at the time of the trial no one could have known that that tricky question was what the case turned on.

What does ‘Bhasin could have governed himself accordingly so as to retain the value in his agency throughout the process. Bhasin did not realize he was being pushed out until it was too late.’ mean? ‘Too late’ for what? Too late to slack off and start laying the groundwork for some other business? The trial judge is a bit vague about the terms of the contract but says they ‘suggest’ that Bhasin should ‘devote all necessary time and effort to’ selling Can-Am’s products. Had Can-Am been perfectly frank and honest with Bhasin but not renewed on the basis of a ‘strategic decision,’ in the trial judge’s phrase, how would his position have been different?

This may seem simply a question of damages. But any lawsuit is fundamentally a question of whether a wrong has caused damages. The ‘good faith’ rule cannot mean that any time a party to a contract says something untrue to another party there has been a breach of the contract and some damages must be found to vindicate the good faith obligations of the contract. If I am planning to give notice of non-renewal to you for our eaves cleaning contract but say ‘Thanks. That was a great job.’ thinking it was lousy, am I stuck with you indefinitely? The law has never made every lie actionable, else the courts would be backed up to doomsday. It is only when there has been reliance and injury and damages that the law concerns itself with untruths.

‘Can-AmFC certainly was not obligated under the 1998 Agreement to continue the contractual relationship forever.’ the trial judge says. For how long then? It couldn’t terminate the contract in November 2001 because, according to the trial judge, its decision to do so then wasn’t in ‘good faith.’ Her assessment of damages implied that it should have kept him until his retirement in 2010. But what if it had decided to let the contract run for another three years from 2001 and laid off the requirement of an audit by Hrynew and terminated the contract at the next three year anniversary in 2004. ‘ It was…open to Can-AmFC to adopt a business strategy that did not include Bhasin’s agency.’ the trial judge says. Well?

The Supreme Court of Canada says Bhasin ‘was misled and lost the value of his business as result.’ While there was evidence Bhasin was misled, there is none that he lost the value of his business as a result.

Two provisions of Bhasin’s contract would have, in the absence of the Court’s ‘new duty,’ confirmed the Court of Appeal’s straightforward reasoning. One provided that the contract could be terminated early for misconduct or other cause. That implied the Can-Am did not have to have any ‘cause’ for not renewing his contract on six months notice. Another provision allowed Bhasin to sell, transfer or merge his agency subject to Can-Am’s consent, which was not be be withheld ‘unreasonably.’ That implied that Can-Am did not have to show that its decision not to renew Bhasin’s contract was reasonable. These are standard steps in interpreting and applying the provisions of a contract. Swept aside by the new law.

THE SUPREME COURT ON A ROLL

The Supreme Court of Canada’s reasons dispense with precise analysis and seem both apologetic and arrogant. On and on they go without clarifying but insisting on both the Court’s modesty and its wisdom. It’s a new deal but no big deal.
[29] …recognition of a general duty of good faith would constitute an incremental advance in the law, given the numerous specific situations that already give rise to a duty of good faith.

[62] I conclude from this review that enunciating a general organizing principle of good faith and recognizing a duty to perform contracts honestly will help bring certainty and coherence to this area of the law in a way that is consistent with reasonable commercial expectations

[63] The first step is to recognize that there is an organizing principle of good faith that underlies and manifests itself in various more specific doctrines governing contractual performance. That organizing principle is simply that parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily.

[69] The approach of recognizing an overarching organizing principle but accepting the existing law as the primary guide to future development is appropriate in the development of the doctrine of good faith. Good faith may be invoked in widely varying contexts and this calls for a highly context-specific understanding of what honesty and reasonableness in performance require so as to give appropriate consideration to the legitimate interests of both contracting parties. For example, the general organizing principle of good faith would likely have different implications in the context of a long-term contract of mutual cooperation than it would in a more transactional exchange:

[80] Recognizing a duty of honesty in contract performance poses no risk to commercial certainty in the law of contract. A reasonable commercial person would expect, at least, that the other party to a contract would not be dishonest about his or her performance. The duty is also clear and easy to apply. Moreover, one commentator points out that given the uncertainty that has prevailed in this area, cautious solicitors have long advised clients to take account of the requirements of good faith…

[89] for wholesale adoption of a more expansive duty of good faith in contrast to the modest, incremental change that I propose:…

[90] It is not necessary in this case to define in general terms the limits of the implications of the organizing principle of good faith. [Oh, yes it is!] This is because it is unclear to me how any broader duty would assist Mr. Bhasin here. After all, the contract was subject to non-renewal. It is a considerable stretch, as I see it, to turn even a broadly conceived duty of good faith exercise of the non-renewal provision into what is, in effect, a contract of indefinite duration. This in my view is the principal difficulty in the trial judge’s reasoning because, in the result, her decision turned a three year contract that was subject to an express provision relating to non-renewal into a contract of roughly nine years’ duration. As the Court of Appeal pointed out, in my view correctly, “[t]he parties did not intend or presume a perpetual contract, as they contracted that either party could unilaterally cause it to expire on any third anniversary”: para. 32. Even if there were a breach of a broader duty of good faith by forcing the merger, Can-Am’s contractual liability would still have to be measured by reference to the least onerous means of performance, which in this case would have meant simply not renewing the contract. Since no damages flow from this breach, it is unnecessary to decide whether reliance on a discretionary power to achieve a purpose extraneous to the contract and which undermined one of its key objectives might call for further development under the organizing principle of good faith contractual performance.

The Court’s assessment of damages is simply incomprehensible. It held, based on the the trial judge’s rambling discussion of damages, that the value of Bhasin’s business at the time his agreement expired was $87,000. What the trial judge actually said was
[419] Given all of these considerations, I find that the value for Bhasin’s agency based on a
trailing 12 month period would be $87,000.00 at the point that he turned 65.
She was thinking of what Bhasin might have sold his business for, as a still going concern, when he turned 65.
The Supreme Court says
[110] It is clear from the findings of the trial judge and from the record that the value of the business around the time of non-renewal was $87,000.

One would have thought that it was nil. It no longer existed. Any office equipment, good will from his employees and contacts and knowledge of the field he and they had, he still had and could and did employ in a new business. But Can-Am had argued that if there had to be damages $87,000 was right, that being the lowest figure under discussion, and the Supreme Court of Canada accepted its position.

The Court agreed with the Court of Appeal in rejecting the implication that the contract was for life, and in awarding Bhasin only $87,000 in damages implicitly accepted that Bhasin had no right to expect his contract to last for any considerable length of time. But it remains unfathomable what the damages from a ‘bad faith’ non-renewal were as compared to what Bhasin would have lost had his contract not been renewed in good faith.

Had Bhasin been an employee suing for wrongful dismissal, itself a dodgy cause of action invented by Victorian judges, the Court would have decided on a notice period and awarded damages, perhaps about $87,000, accordingly.

It very much appears that the Court, having exercised itself so much to make new law, could not bring itself to say that there were no damages.

WHY IT’S BAD

Those who have got this far must forgive me for taking more words than the Court of Appeal to make my points. But the trial judge’s and the Supreme Court of Canada’s reasons, which have at times the air of political speeches, defy simple analysis.

Making new law as the Supreme Court of Canada has done it is wrong because it is ex post facto law. The most competent solicitor would have advised Can-Am that it was within its rights to give notice of non-renewal. The Supreme Court of Canada says ‘one commentator points out that given the uncertainty that has prevailed in this area, cautious solicitors have long advised clients to take account of the requirements of good faith….’ I haven’t access to the 1985 lecture by ‘one commentator,’ my old tax professor Warren Grover, who one day over forty years ago remarked that being a law professor was ‘part time work for full time pay,’ but I can’t believe that he could have foreseen thirty years ago what the Supreme Court of Canada has made of good faith.

And remember that the finding of ‘bad faith’ or ‘dishonesty’ in Bhasin was based on a three week trial. So we are to think that a solicitor cannot advise a client based on a written contract but must be briefed on facts that might take three weeks to canvass at a trial.

In any event, is the Supreme Court of Canada being quite honest? If the putative ‘cautious solicitor’ would have advised Can-Am against giving notice of non-renewal after being briefed on all the circumstances, the law must have been what the Supreme Court of Canada now says it is back in 2001. Then the Supreme Court of Canada hasn’t made new law. The Court pretends it hasn’t. I has just found the law. In its head. But it says
[1]…Finding that there is a duty to perform contracts honestly will make the law more certain, more just and more in tune with reasonable commercial expectations.
‘will make the law…’

If it is not new law, just something the Court found, but the dopes on the Court of Appeal couldn’t find, that’s alright then. The Supreme Court of Canada isn’t making new law. It’s just finding something that had been mislaid. They have a bigger and better organised library.

But the Court repeatedly says it is setting out a ‘new duty,’ asking itself ‘Should there be a new duty?’ The ‘new duty’ is new law, law that did not exist when Can-Am gave notice of non-renewal in 2001, but was imposed by the Court in 2014. The Court, in its own words, has a duty to ‘develop the common law.’ As the Court can only deal with cases where the facts are years behind, it can only ‘develop the common law’ ex post facto.

How can the ‘cautious solicitor’ know what the law is if the Alberta Court of Appeal doesn’t know? Alternatively, the cautious solicitor should always advise ‘Only the Supreme Court of Canada knows what the law is. You’ll have to ask them.’ Which makes the hundreds of dollars an hour you are paying your solicitor wasted money. And you cannot submit a reference to the Court. Only the government can. All you can do is act blindly and spend years and hundreds of thousands from first instance, to court of appeal, to the Supreme Court of Canada hoping for the best, if you are challenged.

When courts properly ‘make law’ they do so when there is no law, when there are conflicting cases or circumstance arise to which the existing law doesn’t fit. In those circumstances the cautious solicitor can advise that the law is unclear and the courts may have to make it clear.

The Supreme Court of Canada repeatedly claims that its ‘finding’ is ‘incremental,’ trying to a assure us of its modesty and caution. But in proclaiming the ‘organising principle’ of ‘good faith’ while ‘finding’ an allegedly simple duty of honest performance the Court literally invites new lawsuits that will lead to new increments, new applications of the ‘organising principle’ and offer the prospect of a law in flux as it keeps up with the ‘dynamic and evolving fabric of our society.’ That is, the negation of law.

For law is settled rules. Its value is letting us know where we stand. In the limiting case, which side of the road to drive on, though it doesn’t matter which, so long as there is a rule. Times change and the rules may best change. Sweden went from driving on the left to driving on the right in 1967 as traffic between Sweden and its neighbours became common. But we need to know what the law is before we act, which is why legislation is the business of legislatures and public debate and comes into effect on a specified date and not retroactively.

The new Chief Justice of Ontario made conventional remarks on his swearing in about the ‘cost, complexity and time it takes to complete legal proceedings.’ We are not going to get lawyers working for even what plumbers charge. But the complexity and time legal proceedings involve is very much a product of the decay of the law that the Supreme Court of Canada is promoting. If law is to be a matter of ‘organising principles’ and ‘increments’ and the exploration of everyone’s ‘good faith’ in three week trials, its ‘cost, complexity and time…to complete’ are only going to become greater.

TECHNICALITIES SHMECTICALITIES

An apparently technical but suggestive issue discussed at all three levels was the pleadings. Pleadings are documents in which the parties set out their case, a statement of claim and a statement of defence. You plead facts, not the evidence by which you hope to prove the facts. You don’t plead law, or make a legal argument. You don’t have to give your cause of action a name. But if your facts don’t form the basis of an action known to the law your case can be dismissed. If I issue a statement of claim saying you wore a hideous tie to my dinner party and claiming damages, you don’t have to prove that your tie was decent. You can move to have my action dismissed on the pleadings and will succeed. Pleadings save everyone the trouble and expense of frivolous actions and also serve to let the parties know what the case is about, what evidence they may have to marshal and what legal arguments they may have to prepare.

The trial judge and the Supreme Court of Canada held that Bhasin had plead enough to raise the issue of good faith, or honesty, whatever, which given the vagueness of the concepts could be said of almost any pleading. And they said that Can-Am was not prejudiced by the unpredictable course of the trial because basically the whole relationship between Bhasin and Can-Am was put into play in the Statement of Claim. This may be true. Can-Am made no motion to attack the pleadings.

The Court of Appeal said
[19] Carefully checking the statement of claim confirms one complaint by Mr. Hrynew. He
complains that the issues on which the Reasons for Judgment were based were never pleaded. The trial Reasons correctly stated that causes of action need not be pleaded, only facts (paras 24-25). However, the majority of the facts upon which the Reasons based those conclusions were not pled either. An allegation that the respondent Mr. Bhasin was “wrongfully terminated” is a conclusion, not a fact. The Reasons found for the respondent Mr. Bhasin on the basis of bad faith and dishonesty toward him. But old R 115 and new R 13.6(3) require a party to plead the matter to be relied on where there is illegality, fraud, malice or ill will, or wilful default.
[20] Therefore, all the evidence was heard before Canadian American had a clear idea of the case against it. No one asked to amend the pleadings. Canadian American objected to raising some of the issues because they had not been pleaded (Reasons, para 21). Evidence closed before anyone argued the topics on which the Reasons proceeded.

The point of pleadings is to see whether there is any case for trial assuming the facts and then to focus the preparation for trail and the trial on those facts. But courts are increasingly reluctant to dispose of cases on the pleadings and to hold parties strictly to the pleadings at trial. Thus the “cost, complexity and time it takes to complete legal proceedings” are increased.

Bhasin’s case should have been dismissed before trial. He and the other parties would have been happier had it been, and we should all be better off.

WHO CARES?

There are many critics of the Supreme Court of Canada’s Charter or Constitution decisions, though most people suppose it knows what it is doing as they are told it does by law professors in the media. But there are few who will criticise the Court for its work in a case like Bhasin. For law firms it is good for business. They can report it to their clients to show that they are keeping up with the law and how much they are needed. Longer lawsuits and more meetings with clients unsure of their rights and duties will help the bottom line. Law professors, of course, are simply chuffed to see their influence.