IS IT ALL JUST A GAME? Tom Flangan's Harper's Team

May 12, 2008, Books in Canada


Harper’s Team
Behind the Scenes in the Conservative Rise to Power
by Tom Flanagan
McGill-Queen’s University Press
326 pages, $   hardback
ISBN: 978-0-7735-3298-4

Until the merger of the Canadian Alliance and the Progressive Conservative Party at the end of 2003, Stephen Harper was, to all appearances, a straightforward conviction conservative, a somewhat wonkish neo-con with a touch of social conservatism. Tom Flanagan was much the same, though his social conservatism was fainter.

Harper had written the Reform Party’s policy manual, the Blue Book, before Flanagan became that party’s director of policy, strategy and communications in May 1991. They have worked together, more often on than off, ever since, as Harper pursued his course to 24 Sussex Drive. Harper's Team is largely an account of four campaigns in which Flanagan worked for Harper: the Canadian Alliance leadership in 2002, the Conservative Party leadership in 2004, and the general elections of June 2004 and January 2006. The team is a score or more behind the scenes workers who are, and will mostly remain, unknown to all but the keenest politics fans, most notable Ken Boessenkool, the young economist turned lobbyist who played a key role in policy and strategy in all four campaigns.

Flanagan has been a professor of political science at the University of Calgary since 1968, one of the many Americans hired by Canadian universities during the great university boom of the sixties. Outside his political role he is best know as a critic of conventional and official thinking on native rights and the role of Louis Riel in Canada’s history. But it is one of the claims of political science to understand what makes people vote the way they do, the same claim made by political strategists who work for politicians. Never active in politics before he went to work for the Reform Party, Flanagan came late to what is often a young man’s game. Some start in their teens. But he took to it with an enthusiasm that is evident throughout Harper's Team. It is a lively, sometimes dramatic, account of campaigning from the nuts and bolts of hiring buses, designing posters and renting office space to the crafting and communication of policy and responding to opponents’ attacks and the inevitable ‘events’. Flanagan is naively excited by the use of computers and the web for campaigning. If his dreams were fulfilled there would be no escaping it.

Harper’s Reform Party Blue Book was a thoroughly conservative document. Flanagan had a reputation as a conservative in an uniquely conservative political science department. He says he was attracted to the Reform Party by the Blue Book. As recounted in Waiting for the Wave, his 1995 book on Preston Manning and the Reform Party, Flanagan split with Manning - he was actually fired - because Manning was preparing to move beyond conservatism, hiring the former Liberal strategist Rick Anderson, and soft-pedalling Reform’s conservative message. In Flanagan’s image, Manning caught the wave of Western alienation and anxiety about the deficit and taxes but had no commitment to conservatism as he waited for the next wave that he hoped would carry him to 24 Sussex Drive. Manning, the most devious of politicians, has always been happy to let those who want him to be a conservative think that he is, but, outside of his domestic life, he has never been a conservative. In the founding of the Canadian Alliance, while enthusiasts hoped to unite the right, Manning promoted a United Alternative, embracing even weary New Democrats.

Stephen Harper had solidified his reputation as a conservative as Reform’s most articulate policy voice in the Commons before resigning in 1997 to lead the “More freedom through less government” National Citizens Coalition. What could be more conservative than that? He was on the sidelines as the Canadian Alliance was formed at cross-purposes between a united right and a united alternative. When Stockwell Day had to step down Harper campaigned for the leadership as the True Reformer: True Conservative, sceptical of his rivals’ keenness to treat with the Progressive Conservatives. When he engineered the merger of the Alliance and the PCs the name Conservative Party of Canada, while comforting old Tories, seemed to confirm that the new party would be the real thing.

The media eagerly promoted an image of Harper and Flanagan as neo-cons with a mission. A high point was Marci McDonald's paranoid “The Man behind Stephen Harper” in the October 2004 The Walrus. The Liberals gleefully depicted Harper as frighteningly conservative and dismissed any sign of moderation or pragmatism as evidence of a hidden agenda. Harper's Team shows what Harper in office confirms, that he and his team are no more frightening or conservative than Joe Clark.

Flanagan occasionally piously affirms conservative principles but he makes it plain that his concern and Harper’s was always simply to win campaigns. In this context policy is not a basis for governing but an election tool like a leader’s tour or an advertising campaign. Whether a platform plank is good government on conservative or any principles is not even a consideration. Its only importance is its effectiveness in moving voters, the most shameless example the GST cuts, the most embarrassing the promise not to tax income trusts.

By Flanagan’s account elections are won and lost, lost in 2004, won in 2006, by all the elements of the campaign, of which policy is only a part, pitched against the other parties’ campaigns. This is the proud conviction of political insiders, the multi-partisan confraternity of political activists, government relations consultants, pollsters and political staffers, endorsed by the many journalists who are their frequent interlocutors. But the results in 2004 and 2006 can be explained without a thought for the campaigns. The immensely prestigious Paul Martin was expected to sweep the country when he became Prime Minister. The Adscam revelations kept him to a minority but voters were uneasy about the little known Stephen Harper. In 2006 Martin had shown himself to be a feckless Prime Minister, the Gomery Commission had displayed all the rot in the Liberal Party and Stephen Harper had come to be known as an ordinary politician, not exciting but not frightening, worth a try. The shift in Quebec, not the result of a beefed up Conservative campaign in that province but of the historically familiar shift to a rising Conservative party, the pointlessness of the Bloc, and the shabby disarray of the Liberals, was enough to give Harper his minority government rather than a virtual tie with the Liberals.

Fans of the game of politics will enjoy Harper's Team. Canadians still anxious about a hidden agenda should read it to set their minds at rest. But it is disturbing in a different way. It illustrates how the political game, campaigning, has come to overwhelm politics, whose end is government.

Flanagan says that “Campaigning is an audition for government.” He claims that organising and directing campaign workers, raising money and spending it well are a test of the skills needed in government. The same could be said of running a stamp club, planning a wedding or commanding an army. It is an absurd analogy, which shows that the specificity of government, the substance of politics, is lost in the political game.

Harper has governed as if he were running a political campaign. Beyond the five priorities coming out of the election campaign, in making appointments, bringing forward legislation, responding to events, his government has been hesitant, inactive, inept. Everything is, and is seen to be, calculated to win a majority, but the surest way to a majority, governing well, eludes them because of the dominance of political players in politics.

Flanagan analyses the voters as given and fixed interests and identities that must be won over by special appeals and policies. The commonweal to be governed well disappears. There is no suggestion that public understanding could be moved by promoting conservative or any other principles. A Canada that elected a Conservative government would not be a whit more conservative than it had been before.

Flanagan may be an academic conservative. He mentions a kind of conversion experience on reading Friedrich Hayek at the ripe old age of 35. There is no mention of the demonised Leo Strauss. Yet his conservatism seems academic in the pejorative sense. His former student Ian Brodie, now Harper’s chief of staff, must also have left his academic conservatism behind.

In 1998 Flanagan wrote with Harper “The purpose of the conservative movement is to change public opinion and public policy.” In 2001 he wrote “Conservatives and libertarians who see politics as a means of effecting change in public policy are more likely to achieve their goals by supporting parties with a consistent free-market outlook than by submerging themselves in “big tent” parties that may sometime win elections but have no clear agenda...” Yet his work in the 2004 and 2006 elections and his prescriptions at the end of Harper’s Team aim precisely at a big tent party offering only scraps to conservatives and libertarians. Scraps that the liberal media exaggerate, as they did the recent banning of tax credits for “offensive” films.

More than the political game’s deflection of politics from government it is simply not well played. The wise guys who play politics are gifted with inexhaustible self-esteem but, because they mistake their strategy and campaigning for the substance rather than just the show of politics they fail at their own game. They become overexcited as Flanagan admits, most dangerously in the attempt to defeat the Martin government in May 2005. Chuck Cadman may have saved Harper from a second defeat. Flanagan refers to his visit with Doug Finley to Cadman the afternoon before the vote. They saw him for fifteen minutes: “...he was visibly tired, and I could see that he wasn’t up to negotiating a return to caucus.”

Over 100 years the Liberal Party abandoned all its principles to win power , becoming experts at the game. Look at them now. Harper’s Conservatives have learned from the Liberals. But they risk the same fate, not after 100 years but early in this century. For conservatives whose hopes were raised in the 90’s it is a depressing prospect.

All the skills of the team that won the 2006 election have now been deployed for over two years to the end of winning a majority, but faced with an historically feeble opposition there is no reason to think the Conservatives would do any better now than they did then. There is no reason to think a Harper majority government would be much different from his minority. It would likely devote itself to winning another majority at the factitiously fixed date. A majority might loosen for a while the election ready discipline Harper has imposed and reveal what character and thinking survives in the Conservative Party. But when campaigning overwhelms politics it all becomes about winning, exciting for the players and the fans but no good for the voters. As in any game there is only one agendum, winning. If voters would not give them a majority in 2006 for fear of a hidden agenda, they will not now because they cannot see what would be the point.

GUILTY PLEASURES The Group of Seven, Canadian Identity and Contemporary Art

March 3, 2008, Books in Canada

Beyond Wildernes
The Group of Seven, Canadian Identity and Contemporary Art
John O’Brian and Peter White editors
McGill-Queen’s University Press
392 pages, $49.95 paper
ISBN 978-0-7735-3244-1

The compilers of this slick tome seem deeply upset by the success of the magnificent Group of Seven exhibition organised to mark the 75th anniversary of the Group’s first exhibition in 1996 and the equally magnificent Tom Thomson exhibition of 2002. The former was apparently “seriously misleading and deeply insensitive”. They are particularly upset that the exhibitions were accompanied by lovely big books with many more nice pictures than this one.

The Group of Seven, Tom Thomson and similar Canadian landscape painters you see did not just paint pretty pictures. They were emptying the North of its native people and claiming it for capitalist exploitation. Indeed the theory is that all landscape painting is just a claim for new rights to own land following on the decline of feudalism.

Critical theories have been multiplying in the academy since the 1960s but they do not seem to have put a dent on public appreciation of Thomson and the rest. Even more scandalously the market for their works has never been stronger. Beyond Wilderness vainly tries to correct this situation.

After the compilers’ introductions, which give their message loud and clear, the book is a jumble of short pieces, a few specially commissioned, and a few included to show what the post-modern crusaders are up against.

Much of it serves as a sampler of current academic writing in what pleases to call itself cultural studies. The important thing is not to make an argument, still less to lay out facts, but to invoke a theory and apply it to any old thing, in the instance Canadian landscape painting. You pick up the lingo: “privileged forms in a pervasive discourse of social management”; “landscape as a category not only symbolizes but enacts colonialist desire.” You throw in the odd “imbrication”, invoke Michel Foucault and Fredric Jameson. When invoking authorities big names are not necessary and indeed are best used sparingly. When expounding a theory it is enough that anyone has published a similar theory. For people who stopped thinking years ago a reference to a theory takes the place of thinking. That it is all drivel, right back to Foucault, hardly matters.

There are also accounts of or, to the extent possible with what is to some extent conceptual art, illustrations of, what the compilers believe is corrective art for our times. Michael Snow’s La Région Centrale, which he modestly proposed as “a gigantic landscape film equal in terms of film to the great landscape paintings of Cézanne, Poussin, Corot, Monet, Matisse and in Canada the Group of Seven” is reverently described. It “has been hailed as a ‘masterpiece’” by Paul Virilio, the noted dromologist, no less. Three hours of edited footage from a camera installed somewhere north of Sept-Îles it has scandalously failed to catch on with the benighted art loving public. Iain and Ingrid Baxter’s humourless jokes as N. E. Thing Company “poked gentle fun at existing boundaries in order to improve the quality of life for themselves and others while inadvertently leaving a partial social document of their hybrid and polymorphic milieu.” These and Greg Curnoe’s literally hateful anti-American “Amendments to a Continental Refusal” have dated as much as platform shoes and disco. The Group of Seven, while obviously old, have not dated any more than Ruisdael. That’s what’s so annoying.

All these and the other newer, more correct, artists featured in Beyond Wilderness have received official patronage as Tom Thomson and the Group did. The 1993 Michael Snow Project of the Art Gallery of Ontario was as unmissable as the Group of Seven show three years later. Snow’s sometime wife Joyce Wieland got the full treatment from the National Gallery in 1971 and from the Art Gallery of Ontario in 1987. But they have not taken with the public.

Thomson and the Group are condemned as notoriously dead white males and Anglo-Saxon Protestants to boot. Three of them were actually born in Britain! On the basis of Lawren Harris’ reference to “the great North and its living whiteness” Scott Watson condemns them all as racists. The post-modernists detect a puritanical strain in their work, which is odd coming from people so puritanical themselves. They do not actually adjure us not to enjoy the Group’s paintings but their theoretical sensors are ever alert to the post-modern equivalents of sin, privileging, colonialism, Othering. They are the precisians of art. The moral tone is undermined by sneering, “Thomson and his cronies”, and cheap shots. John O’Brian reports the perfectly meaningless fact that A. Y. Jackson’s “Terre Sauvage” was painted in a studio above a bank branch.

The book takes a naively accepting line on multi-culturalism. In 1971 PET decreed multi-culturalism, and it was good. Questions of what exactly it means and what is good and what may be bad about it, which exercise academic colleagues of many of the contributors, are never addressed. The important thing is that the old painters were “white bread” and out they must go.

There is a strain of Marxisant paranoia in the book. Elite patrons and arts bureaucrats seem to conspire to foist the Group of Seven on the masses to sustain their colonialist capitalist ascendancy. Or am I guilty of a kind of intentionalist fallacy, thinking that people must mean what they do or do what they mean. It is conceded that “many members of the Group [might not] be altogether sympathetic to the ideological edifice that has been erected in their name.” But that will not get them off the hook. And the banker and Maecenas Sir Edmund Walker may have meant well in promoting Canadian art but he was an agent of capitalism and colonialism all the same.

Oddly, the only straightforward art appreciation in the book comes from Barry Lord’s silly Maoist The History of Painting in Canada: Toward a People’s Art. The compilers are rather condescending to Lord, whose old hat Marxism has been left behind by Marxisant post-moderns. Lord allowed that the Group represented a national bourgeoisie, progressive in its time, before it was overcome by the compradors of capitalist imperialism. He can therefore write unaffectedly that in J. E. H. Macdonald “Leaves in the Brook” “The rich colour and rapid movement are conveyed to us with all the freshness of the original autumn scene.”

Many of the pieces in Beyond Wilderness have been severely edited. The late Robert Stacey’s deeply informed and argued “The Myth - and Truth - of the True North” is cut off less than a third of the way through when his defence of the Group has barely started. Perhaps other contributions would be more insightful and persuasive if given in full. Most don’t get beyond striking a pose.

For their purposes the compilers and most of the contributors exaggerate the importance of the empty wilderness in Canadian art. You would not guess from their book that Lawren Harris painted many townscapes, which, dare I say, sell very well. The auction record for a Group of Seven painting is held by Harris’ “Pine Tree and Red House, Winter, City Painting II” at $2,875,000. It does have a tree and snow in it.

The callow prejudice that passes for insight in Beyond Wilderness is typified by the compilers bald statement that “The concept of northern development has decidedly negative connotations today...”. That would be leaving aside the fact that there would be no paper to print their book on without northern development and much less wealth to tax to keep them and their contributors and the new artists they promote.

Benedict Anderson, the New Left Marxist and leading critical theorist of nationalism attended a symposium that was part of the “OH! Canada Project” staged by the Art Gallery of Ontario as a defensive gesture at the time of the 1996 Group of Seven exhibition. Much thanks they got for it. An excerpt from Anderson’s paper is included in Beyond Wilderness. If the compilers and contributors are uncritically accepting of multi-culturalism they are completely at sea about nationalism. They want to reject Old Canada nationalism but the whole structure of support for the arts and academic study of Canada rests on a national ambition for Canada, the belief that a nation must have its art and self-understanding to the end that we can imagine our national community.

No doubt there is something to be written about the reasons for and the limitations of the Canadian attachment to the rough sublime of the North. As the compilers and contributors allow, the appeal of the paintings partly expresses and reflects Canadians’ consciousness of Canada’s vastness and complex relations to it. When it comes to the paintings they must be looked at closely to see their complexity and with respect for the achievement of Thomson and the Group and their contemporaries that won them their place ahead of their predecessors and still at the peak of Canada’s art. Marxisant reductions and processing by theory blind them to what the great public happily sees.

The Stupid Court of Canada - Health Services and Support v. B.C.

The Charter guarantees a right to collective bargaining. Who knew? The phrase does not occur in the Charter. The Supreme Court of Canada faced the issue several times from 1987 and could not find it. As the Court says "the Supreme Court's jurisprudence consistently and explicitly stated that the ability to bargain collectively was not a Charter-protected activity." The Court had to overrule four of its earlier decisions in proclaiming, unanimously, in Health Services that collective bargaining is included in the freedom of association guaranteed under paragraph 2(d) of the Charter.

The Court shows scant respect for its predecessors in the last 20 years in concluding that their reasons for not finding a right to collective bargaining in the Charter "do not withstand principled scrutiny and should be rejected." It accused them of adopting a "a decontextualized approach to defining the scope of freedom of association". "Contextual" has in recent years become the Court's favorite word, an abracadabra that transforms it into a Humpty Dumpty court where everything means what it chooses it to mean.

Formerly when courts have departed from precedents they have striven, however disingenuously, to distinguish the precedents they will not follow or have claimed that the world had changed making old law inapplicable in new circumstances. This Court will not play such games. The old court is simply condemned.

Whoever may be right about the particular issue, the readiness of the Court to overrule itself presents constitutional law in a slow flux. The Court in the next 20s may show no more respect for the McLachlin court than it shows for the Dickson court. There is an implication that constitutional law is a progressive science with new discoveries regularly made. But chiefly the Court's reasons show conceit. It thinks it has got smarter. In fact it is getting stupider.

Several pages of the Court's typically prolix, pompous, inconsequent and vague reasons are devoted to a history of collective bargaining. Workers banding together to deal with employers were initially held to be combinations in restraint of trade at common law and faced reactionary legislation as the industrial revolution took off in the years following the French Revolution. This law was gradually repealed and by the 1870s trade unions had received legislative protection.

The Court's lengthy history comes down to the facts that collective bargaining has been around for a long time and is considered to be a very good thing. From this they leap to the conclusion that it is a fundamental right. The only relevance of the history is the exact opposite of what the Court makes of it. When the Charter was being drafted in 1981 collective bargaining was a very well known institution considered by many to be a right. If the Charter was meant to guarantee it, it would have said so, in two words. But the Court has long since abandoned any pretence that is is trying to find the meaning of the Charter. It prefers itself as the source of meaning. It gives meaning to the Charter.

From the history argument it follows that all good things provided or legislated for by governments for a number of years are rights. Once they become rights the Court takes them within its supreme authority. Any changes to what governments do affect rights and must be approved by the Court. If what governments provide fails to meet the Court's exacting standards they will be ordered to shape up.

As it has done before, the Court places great reliance on international conventions signed by Canada. Negotiated in pleasant foreign climes by irresponsible public servants with the public quite unaware what they are supposedly being committed to, drawn in broad, grand language but often descending to detail, notoriously entered into and even promoted by regimes flagrantly breaching them, such conventions are an unsavoury and suspect source of law. The implication that the meaning of the Charter can be affected by conventions entered into before or after it was adopted, with the public unaware, and subject to change is odd. And there are enough of them and they say so much that the Court could support whatever it might want to do with reference to one or another of them.

The Court may say that it is just using the conventions as an aid to interpretation, not applying them. If the conventions count collective bargaining as a freedom of association, then it must be there in 2(d) of the Charter. As the Court says rather clumsily the conventions "extend protection to the functioning of trade unions in a manner suggesting that a right to collective bargaining is part of freedom of association." As with the argument from history, the argument from international conventions works best the other way round. The fact that collective bargaining was spelled out in the conventions raises the question why it was not spelled out in the Charter. To which the answer is, that it was not intended.

The Court's final argument is its grandest, vaguest and most ambitious. Stating, reasonably enough, that "Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy are among the values that underly the Charter", the Court reasons that because "The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy [and equality] of workers" it must be in the Charter whether it is spelled out or not. The Court will find whatever it thinks enhances "Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy" in the Charter whether the drafters put it there or not.

The Court's strongest argument might seem to be that acting Minister of Justice Robert Kaplan told a Joint Senate and House of Commons Committee on January 22, 1981 that there was no need for a specific reference "to freedom to organize and bargain collectively" because it was covered already by freedom of association. But the Court has never felt bound by assurances given before the Charter was passed as to what it might mean. Jean Chrétien's specific assurance to the same committee that it would not affect the law on abortion counted for nothing in Morgantaler. In the claims made about the Charter support could be found for any interpretation.

As the Court allows in its review of the history, collective bargaining in the public sector is relatively new, coming into its own in the 60s. Now it is where the action is for unions. It raises grave issues, nowhere graver than in health care, that set it apart from the centuries old engagement between capital and labour. The end of the legislation found by the Court to infringe the right to collective bargaining was the restructuring of health care in British Columbia, including contracting out of services. The Court allow that this was, in its Oakes jargon, a "pressing and substantial" objective. Public sector unions, as much concerned with job security, classifications, contracting out, transfers and assignments as with wages and salaries, powerfully constrain the freedom of governments to decide what services they will provide and how and where. In the private sector unions are constrained by the same market forces that constrain their employers. They must be ready to adapt or they will drive their employers into bankruptcy. In the public sector there is no such constraint. Governments can only achieve it by legislation. The Court is oblivious to this. Caught between the unions and the Court public services risk becoming ossified.

At the beginning of its reasons the Court refers in passing to the speed with which the impugned legislation was passed and the absence of what it calls "meaningful consultation" with the affected unions. In considering at the conclusion of its reasons whether the infringement of the right it had just invented could be justified under Section 1 of the Charter, the Court states soundly "Legislators are not bound to consult with affected parties before passing legislation." and immediately effectively retracts the statement by saying "it may be useful to consider, in the course of the s. 1 justification analysis, whether the government…engaged consultation with the affected parties". Having seized for itself the power to review all future labour legislation to determine whether it meets what standards it fancies in years to come, the Court further takes on the supervision of all politics to determine whether there has been "meaningful consultation" wherever it sees rights affected, which is to say practically anywhere.

Unions were naturally cheered by the Court's decision. It would not be an unworthy suspicion to think that the Court, always eager for friends while exposing itself to well founded criticism, was reaching out to them in its decision. But unions would be wrong to count on the Court in all their battles with governments. As each piece of legislation affecting collective bargaining is brought before the courts, they will judge for themselves whether they like it or not and will often let it stand, if there has been enough "meaningful consultation" before the government tells the unions to take a hike.

What the Court understands by collective bargaining, though it talks about it at length, remains obscure. In Dunmore, which paved the way for Health Services, the Court held that agricultural workers had a right to form unions while expressly stopping short of finding a right to collective bargaining though it might follow from forming a union. In Health Services it stops short of finding a right to strike. The health workers affected by the impugned legislation in many cases were not permitted to strike but could go to arbitration. The next step will be to find a right to strike but allow its curtailment when the Court sees fit. The next time a government tries to stop a transit strike commuters will have to wait for the Court to say whether back to work legislation passes the Oakes test before service is resumed.

All the Court's arguments point to the conclusion that all good things are rights. Why should this be so? Of course, once they are rights the come into the Court's power. But can we have no confidence that our democratic institutions will not provide good things without the Court's supervision and direction? It was obvious that the Charter would give the Court large new powers. But the Charter was based on the assumption that there were specific rights and freedoms, listed in it, that should set limits to the powers of governments. It was not intended to make the Court a supergovernment. That would be stupid.

In the first years after 1982 the Court stumbled about trying to make sense of its new powers. But the majorities showed understanding that they were limited by the language of the Charter and by its competence as an institution. In the 90s the Court grew progressively stupider, its judgments ever more far reaching and obscure.

At every opportunity for fifteen years or more the Court has striven to find a right in the Charter that would extend its free supervision of government action under Section 1. Once it finds a right it will tell governments what they must not or must do. A natural pursuit of power the trend is also profoundly stupid. The Court because of its institutional nature and procedures, as much as from the human frailty of its nine members and its irresponsibility, is incapable of governing the country. Yet still it tries.

The Supreme Court of Canada keeping us guessing - R. v. Bryan

Bryan reminds us that it is never wise to think we know what the Supreme Court will do. The lengthy 5/4 decision with two sets of reasons for the majority will keep us guessing.

Paul Bryan must have thought it would be pretty safe on the night of the November 27, 2000 general election to post results from the 32 ridings in Atlantic Canada on a website before the polls had closed in the rest of Canada. He announced he was going to do it and ignored a letter from Elections Canada warning him not to. It was forbidden by Section 329 of the Canada Elections Act, but two years before in Thomson the Supreme Court had struck down Section 322.1 of that Act, which banned publication of polls in the last three days before an election. Surely the Court would strike down Section 329, particularly as the judges in Thomson who would have kept the ban on publishing polls were concerned that the polls might be inaccurate while Bryan was posting accurate, if partial, results.

As the Court reads the Charter Bryan's freedom of expression under Section 2(b) had obviously been breached so the Court had to decide whether Section 329 was a reasonable limit under Section 1. From the earliest cases the Court has read the Charter's rights and freedoms abstractly and strictly, readily finding breaches. If the Court understood the rights and freedoms concretely in their historic legal meaning its power would be less. "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication" protected under Subsection 2(b) of the Charter are threatened when governments try to control what people think and to hold power by censorship and persecution. Whatever its merits, Section 329 was not that kind of measure. By reading the protected rights and freedoms abstractly and strictly the Court brings the reasonable limits of Section 1 into play and sets itself free to do what it likes.

The majority writes of deferring to Parliament and all the reasons employ the Oakes jargon of "rational connection" "proportionality" etc. with which the judges pretend to be engaged in subtle legal analysis when they are deciding whether they like a piece of legislation or not. But there is no mistaking that the judges are doing nothing different from what a politician, a journalist or a drunk in a bar would be doing in saying whether we should get results from the East while polls are still open or not. Real deference to Parliament would be the Court upholding legislation it did not like. That it does not do.

The Court's other ruse for concealing its political activity is to say that it relies on evidence of social and political facts. In the best of cases such evidence falls short of what the natural sciences can provide, making it easy for the Court to take it or leave it as it pleases. In Bryan there was an embarrassing dearth of evidence on the effect of results being released before the polls close. The Court had to resort to "logic and reason". This amounted to little more than the notion of "informational equality". The phrase describes the objective of the legislation: all voters should have the same information when they vote; none should know how others voted before voting themselves. Giving a concept a name, even a nice and imposing sounding one like "informational equality", does not make it a value. The Court accepted that it was a value.

The government's expert witness, a political science professor, testified that "informational equality" is "a central assumption of electoral democracy". This would have surprised voters before the days of the secret ballot. We may accept that secrecy of voting is now "a central assumption of electoral democracy" but the secret ballot was not adopted to prevent voters from knowing how their fellows had voted.

The other factor that weighed with the Court was a poll from 2005 that found 70% of those questioned "thought people should not be able to know election results from other provinces before their polls close". The Court would not say "If 70% of the people want the law they can have it." Whatever the talk of deferring to Parliament the Court has never talked of deferring to the people. It claims to be a bulwark against a tyranny of the majority. The Court took the poll as evidence of a subjective anxiety that would undermine confidence in democracy whether reasonable or not. It was not that publishing results before the polls close is unfair but that many people think it is unfair that mattered and justified the law. Concerned about the reliability of polls in Thomson the Court took the 70% at face value not considering whether a different wording of the question or a different context would yield a different result.

Resentment of results reported while polls were still open has been sustained because the West saw elections decided before they had finished voting. Staggered voting hours now mean practically that only results from Atlantic Canada are available before polls are closed everywhere. The minority would have struck down Section 329 on the ground that withholding the results from the 32 Atlantic ridings was not important enough to justify the breach of freedom of expression they found.

If Westerners have objected to hearing results from the East before they have finished voting it was not so much hearing as the results themselves they did not like. With a great majority of seats in Ontario and Quebec and those provinces tending to vote in blocs the West was powerless and saw it. More seats in the West and more open contests in Ontario and Quebec would relieve the West and late voters might even want to know the state of play before voting.

The Court held that it was important that Western voters should vote in ignorance of what Atlantic voters might be doing even though, after Thomson, eve of voting polls as indicative as partial official counts are now a constitutional right. Who can blame Bryan for thinking he was safe? We can predict elections but not Supreme Court decisions.

The Supreme Court of Canada goes back to Blackstone? - Canada (Attorney General) v. Hislop

In Hislop same sex couples won a predictable, limited victory against a government whose opposition was a feint. But Hislop et al. made broader claims whose defeat, sensible in itself, required the Supreme Court to consider what it is doing with the Charter. Getting into deep water the Court became lost and divided.

When the Court decided in M. v. H. in 1999 that same sex couples must be treated the same as opposite sex couples Parliament and the Legislatures undertook massive legislation to make their laws comply with their understanding of the Court's decision. Parliament passed the roughly 50,000 word Modernization of Benefits and Obligations Act in 2000. A couple of sections of this act dealing with Canada Pension Plan survivor benefits were in issue in Hislop.

The legislation provided that survivor benefits should not be paid to survivors of same sex "spouses" who died before January 1, 1998 and that no payments should be made to such survivors for months before July 2000, the month the new legislation took effect. The reasons for these cut offs were not made clear before the courts or when the legislation was before Parliament. An official told M. P. Svend Robinson in the committee hearings that policy decisions would be made about possibly affected claimants. It seems that the government had only a vague idea of what the cost of same sex survivor benefits would be and decided on an arbitrary cut off to be safe against a deluge of claims from the past. Future claims could be tracked and budgeted for.

The government made the bizarre argument before the Supreme Court that the cut offs did not discriminate between same sex and opposite sex couples, contrary to M. v. H., but only between different sets of same sex couples. This was too cute even to amuse in law school. The sections under attack expressly revived for the purposes of the cut offs the old definition of "spouse" and maintained the discrimination the courts had condemned, up to January 1, 1998 and July 2000 respectively.

The government's attempt to justify the cut offs under Section 1 of the Charter was not serious. By now it is clear that the Canada Pension Plan does not face a deluge of claims from the past. In any event payments have never been allowed for more that twelve months before the receipt of an application. And many survivors of same sex couples who might have made claims are now dead.

Hislop et al. argued that survivor benefits should be paid to those who might have claimed them if the law had been what the Court in M. v. H. in effect said it should have been from April 17, 1985, the date the equality provisions of the Charter took effect. The trial judge had accepted their argument and suspended for same sex claimants the provisions of the Canada Pension Plan that require claims by estates to be made within twelve months of death and limit payments in arrears to twelve months before receipt of an application. The Ontario Court of Appeal overturned that part of the trial judge's decision and the Supreme Court agreed with it. The Supreme Court's rejection of Hislop's cross-appeal rested on one narrowly technical ground and the gravest issues of jurisprudence.

The Court held that the Charter only guarantees equality to individuals and that as estates are not individuals they cannot make claims relying on the Charter's equality guarantee, even though an estate may be less than it would have been because the deceased individual was discriminated against by unconstitutional law before death. If this seems unsatisfactorily technical the Court's decision of the deep issue of constitutional jurisprudence leads to the same result.

It is an old doctrine of jurisprudence, for which the Court found a classic statement in Blackstone, the 18th century commentator on the common law, that courts find law, they do not make it. They may find it in an act of Parliament, perhaps recently passed, and no one suggests that what they find there was the law before it was enacted by Parliament. Indeed it is a general principle of jurisprudence that legislation should not have retroactive effect. It is unjust that what people did in the past should be subject to law that did not exist then. When cases are decided on common law Blackstone's doctrine holds that what the courts decide was always the law even if people did not know it until the courts decided the cases. On this doctrine parties cannot claim that the rights arising from their actions are determined by law that did not exist when they took them. Blackstone's simple classic doctrine is as out of fashion as the wig her wore. Law professors promote the idea that judges can and should make up the law in accordance with progressive thought in law schools while cloaking their legislative activity in mystifications lest people wonder why unelected people should be making laws.

The Charter fits awkwardly into the distinction between legislation and common law. The Charter is legislation enacted by Parliament at Westminster and subject to amendment by the elaborate procedures that came with patriation. But it is peculiarly vague and broadly worded legislation. If you bother to check you can find in the Income Tax Act the exact consequences of any getting and spending you may do. But governments in legislating can only guess whether they are complying with the Charter.

Section 15 of the Charter was suspended for three years to allow Parliament and the Legislatures time to amend their statutes to bring them into compliance with its equality guarantee. Teams of government lawyers were set to work guessing what the courts would make of it and a mass of legislation was passed to comply with it. Some of their guesses must have been wrong and changes made that the courts would not have required if asked. But no one thought to provide same sex benefits. If asked in 1985 the courts would not have required them.

The majority of the Court in Hislop held that Blackstone's doctrine cannot always apply in Charter decisions and that "when a court is developing new law [emphasis added] within the broad confines of the Constitution, it may be appropriate to limit the retroactive effect of its judgment." It laid emphasis on Egan, in which the narrowly divided Court in 1995 found the Charter did not require that "spousal allowances" under the Old Age Security Act be paid to same sex partners. Frankly admitting that the Court had made new law it held that the retroactive remedy the trial judge had devised would be applying new law to the past.

Mr. Justice Bastarache in a forceful dissent accused his colleagues of asserting "in essence, that the Constitution actually changed between 1985 and 1999, and that the claimants, unlike other Canadians, were not entitled to its protection in 1985." Rejecting Blackstone's theory of common law and insisting that it is made by judges and not found, Bastarache yet insisted that "Judges do not "make" the Constitution every time they interpret its provisions....Charter rights are not created every time that a court ...[he quotes the majority] 'gives content to broad, but previously undefined rights, principles or norms'."

Sharply kicking the legs out from under the bench on which the majority sat, by some kind of levitation Bastarache still sat with them on it and agreed with the result, refusing a remedy by which Hislop et al. could receive what he adamantly maintained was due to them by Charter right since April 17, 1985. He claims for the Court an unexplained authority to do as it sees fit in giving retroactive effect to its judgments. He could as reasonably claim authority to do so prospectively.

The majority found a logical ground for refusing retroactive relief in holding that the Court had made new law in M. v. H. but could give no logical account of when it would be "operating inside or outside the Blackstonian paradigm", i. e. applying existing law or make new law. Bastarache insisted logically that the Court could only be applying existing law found in the Charter but could give no logical ground for refusing retroactive relief.

The conundrum would be resolved if the Court adopted a restrained, modest, conservative approach to the Charter, finding in it only rights that are plainly there, and gave precise succinct reasons making clear what is not clear in the Charter. Then we should all know where we stand under the Charter and the Court would not have to operate "outside the Blackstonian paradigm". The Court's freedom and power would be circumscribed. But from the start the Court used the Charter to make new law and gave such prolix, obscure and incoherent reasons that it is a sure thing that in the years to come it will find rights we do not know and even deny rights we think we have.

INSIDER REPORT Eddie Goldenberg's The Way it Works

March 1, 2007, Books in Canada

The Way it Works: Inside Ottawa
Eddie Goldenberg
A Douglas Gibson Book McClelland & Stewart Ltd.
402 pages, $36.99 cloth
ISBN 0-7710-3352-4


Eddie Goldenberg worked almost continuously for Jean Chrétien in government and politics from 1974 until Chrétien’s retirement in December 2003. The son of the superbly well connected Senator Carl Goldenberg, Eddie got a summer job working for Chrétien in 1972 through John Rae, Chrétien’s executive assistant from 1967-1971 and his perennial campaign manager. At Chrétien’s right hand as a cabinet minister and Leader of the Opposition, Goldenberg became “Senior Policy Adviser” to Prime Minister Chrétien. At cabinet meetings, meetings with premiers and foreign leaders, wherever the action was, Eddie, as he is careful to point out, and the many photographs in the book show, was almost always there. Often he represented Chrétien. He wrote speeches for him. To the public he was unknown.

Despite his title, Goldenberg had no head for the real work of government. Chrétien had the well known genius Chaviva Hosek as Director of Policy. A self-confessed “political junkie”, Goldenberg was a political strategist and fixer, seeing that Chrétien got what he wanted. He was the boss’s grinning consigliere. His idea of government is simply spending. His proudest personal achievement in government was engineering the flow of billions to universities and research in the last Chrétien years.

The Way it Works partly lives up to its title, giving an account of how cabinets are formed, what goes on at cabinet meetings - boring presentations, ministers catching up with their paperwork, leaving the table to get coffee - how decisions are made. Goldenberg thinks it all works pretty well. The book is also a defence and celebration of the Chrétien government. In this the implication of the title is that critics do not understand how it works, how it has to work.

He says his aim is to explain that cynicism about politics and government is misplaced. He has some explaining to do. The Liberals came to office on the basis that the GST was the work of the devil, NAFTA a bad deal, military helicopters unaffordable, the deficit no big problem that should crimp spending. They knew all this was untrue. At least they could have figured it out. Goldenberg describes David Dodge, then deputy finance minister, explaining to Hosek and himself the financial crisis Canada faced. Dodge said nothing that had not been in the newspapers for years.

Goldenberg confirms Chrétien’s big picture, chairman of the board approach to government, which got him compared to St. Laurent in the early years. He makes light of people who would not speak their mind to Chrétien or who took things Eddie said in casual conversation as commands from the Prime Minister. But if Chrétien was content to leave ministers to get on with their work he was nonetheless determined to have his way in what interested him. If what that was was not clear people were all the keener to do what they guessed was his will. Chrétien’s reputation as a tough boss was not a delusion of weak and inexperienced politicians under him, or a function of his office. Chrétien was a pure power politician. He enjoyed power and being able to help his friends and hurt his enemies. There was work that had to be done. He could not run the country into the ground and enjoy himself. But he could not enjoy himself if he was not securely in charge.

Chrétien’s one challenge was Paul Martin. Goldenberg paints an unpleasant picture of Martin, though of course the Goldenbergs had known the Martins since the 1930’s. There will be other accounts of Chrétien and Martin. What is unaccountable is that Chrétien should have decided to stay on for a third election in 2000 and hang on for three years after that simply to thwart Martin, as Goldenberg affirms. The failure of the Martin government makes it no more creditable. Chrétien would not give up power except by his own free will. Any other possible successor showing signs of restlessness would have provoked Chrétien. Indeed Allan Rock did.

A highlight of the book is Goldenberg’s account of Canada’s decision on the war with Iraq. He claims Canada’s position was always clear and consistent. How then can there have been such drama as he claims on March 17, 2003 when Britain asked what Canada’s position would be and Chrétien announced to the House of Commons that Canada would not participate?

Goldenberg expresses resentment at what he calls the ultimatum and that it came from Britain. It was not an ultimatum. The coalition was about to go to war and needed to know, Canada having sent mixed signals, whether Canada would be with them. Britain was as much in it as the United States, though necessarily on a smaller scale. Perhaps they felt the inquiry coming from Britain would avoid the anti-American paranoia in evidence.

Now that Iraq is a hellish mess the consensus is that the war was wrong and Canada smart to stand aside. At the time many Canadians thought Canada should join in. Opinion in English Canada was roughly evenly divided. Chrétien could have led either way. Support for the war went way beyond business groups trying to curry favour with the U. S., the only support Goldenberg acknowledges. He rightly minimizes the impact of political difference or closeness on trade relations, driven largely by U. S. domestic politics.

Goldenberg calls it a brave decision but what was Chrétien braving? The U. S. was keen to have support but threatened nothing and did nothing as it was refused. He risked no votes over it. The political risk was all on the other side.

There was some drama on March 17, 2003 because Canada’s position was anything but clear and consistent. Shortly before, three Toronto papers headlined three interpretations: we would go only with the UN; we would go whatever the UN said; we would not go in any circumstances. In the confused debate it seemed that some would have had us send forces to defend Saddam against a putatively illegal invasion. If UN authorisation was the issue we still had to decide whether an invasion was justified. If yes, we should have been pressing the Security Council to approve it. If no, we should have been pressing the Council to say so. Our UN ambassador Paul Heinbecker, a latter day Loring Christie with anti-Americanism replacing Christie’s anglophobia, scurried about promoting a resolution for more time for weapons inspections coupled with explicit authorisation for an invasion, a transparent attempt to thwart Anglo-American plans stymied by French opposition to an invasion in any event.

As Goldenberg maintains that Canada’s position was always what Chrétien stated on March 17, he can give no account of the development of the policy. He describes Heinbecker, Claude Laverdure, Chrétien’s foreign policy adviser, and himself considering the British inquiry for a minute and advising Chrétien to say no. A serious country weighing up its interests and principles does not appear. The Ministers of Defence and Foreign Affairs barely appear in the story.

In Goldenberg’s insider account the context disappears: Francie Ducros’ “What a moron?”, Carolyn Parrish’s “Damned Americans....I hate those bastards!”. Canada’s prevarication and the anti-Americanism it nourished resulted in Canada’s decision seeming a condemnation of the invasion, a position many in Canada were pleased to adopt. It is this rather than the decision itself that may have had an impact on relations with the US and events in Iraq. Those massacring scores of innocents every week in Baghdad were encouraged by it.

There is real drama in the story of the 1995 Quebec Referendum, set in the context of a kind of Whig history of national unity with all well after the recruitment of Professor Dion, the Supreme Court Reference and the Clarity Act. Time will tell whether Chrétien has not secured Joe Clark a place in history for his description of the Clarity Act as a “blueprint for separation”.

Goldenberg complains that media accounts of government are “incredibly superficial”. The Way it Works reads like a long newspaper feature.

The Supreme Court of Canada leaves us in a quandary - Charkaoui v. Canada

The issues the Supreme Court had to decide in Charkaoui and the two appeals heard with it were pretty simple.

Is it just that foreigners living in Canada can be arrested without being given the full reasons for their arrest? Should they have to wait months or more before they can ask a judge to release them? If the answer to either of these questions is no, can the breach of the foreigners' rights be justified for security reasons? The issues have been widely canvassed in the media and no consensus has emerged. The Supreme Court reached a perfect consensus unanimously saying: No. No. No. But it did not keep it simple

Adil Charkaoui, a permanent resident, what used to be called a landed immigrant, and Hassan Almrei and Mohamed Harkat, refugees, had been arrested, in 2003, 2001 and 2002 respectively, under provisions of the Immigration and Refugee Protection Act that allow the Minister of Immigration or the Minister of Public Safety to issue a certificate declaring someone not a citizen of Canada "inadmissible". The certificate must be reviewed by a judge but the judge may determine that the certificate is reasonable on the basis of information or evidence heard in the absence of its subject or his lawyer, if persuaded by the minister that its disclosure would injure national security or anyone's safety.

The certificate has the immediate effect of an arrest warrant and after it is passed by a judge becomes an order for removal of the subject from the country. A review of the detention of a permanent resident must be commenced within 48 hours of an arrest. Others such as the refugees Harkat and Almrei must wait 120 days before they can apply to have their detention reviewed.

Charkaoui has been on conditional release since last year and Harkat since 2005. Almrei is still locked up.

The Court first considered Section 7 of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

It was not difficult to decide that the appellants had been deprived of their liberty. They had been locked up. That was enough to be getting on with. But Chief Justice McLachlin writing for the whole Court made heavy going of Section 7 by also considering the vague, catch all phrase "security of the person". Being called a terrorist may not be nice if you are innocent and the risk of return to the somewhat Hobbesian lands whence Charkaoui and the others came may be worse but the first is curable and the second hypothetical. The unnecessary disquisition on "security of the person" signals the Court's readiness to entertain strained and imaginative arguments in other cases.
Under Section 7 of the Charter you can be locked up "in accordance with the principles of fundamental justice". The court considered whether national security could affect the requirements of "fundamental justice". But not for long. The court has generally shown itself keen to find breaches of the Charter. Once it has done that it can consider whether the breach is a "reasonable limit" under Section 1, looking to whatever it pleases as "evidence" and drawing a "reasonable limit" wherever it sees fit.

Having decided that security concerns could not excuse the procedures under the Immigration and Refugee Protection Act, McLachlin then blathered on about "fundamental justice" for twenty pages, worrying for seven pages whether the reviewing judges can be perceived as independent and impartial before roundly concluding that they can, yanking in a completely irrelevant comment on the Arar affair and allowing that, after all, "societal concerns [including national security] formed part of the relevant context for determining the scope of the applicable principles of fundamental justice", before finally reaching the predictable conclusion that there was a breach of Section 7.

Consideration then of whether the breach could be justified came down to a decision that the breach was not a "minimal impairment" of Section 7 rights, that the government could do better, by providing for a special counsel who would have security clearance and see all the evidence but not disclose it to the detainee or take instructions from him. Such counsel used to be used by Canada's Security Intelligence Review Committee and are used in the United Kingdom in some immigration appeals. Perhaps they will be helpful. But it is not something that follows necessarily from the language of the Charter.

What follows necessarily from the language of the Charter is that the Court is free to second guess Parliament and impose its will on it. That is what law professors with solemn facetiousness call a "dialogue between the Court and Parliament". It is no fun having a power if you do not use it and use it the Supreme Court of Canada will.

The court briskly considered Section 9 and subsection 10(c) of the Charter:

9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

holding that security was a "rational foundation" for detention but that the ban on a review of the detention for foreign nationals such as Harkat and Almrei breached Section 9 and subsection 10(c) together. They like Charkaoui must have continuing opportunities for review of their detention and any conditions of release.

Finally the court considered Section 12 of the Charter:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.

which the court eyes as a blanket authority to let the Court decide how to make the punishment fit the crime. After ten pages of hemming and hahing the court decided that Almrei's indefinite detention was not "cruel and unusual treatment" while saying:

...this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter...

just to keep us on our toes.

Reactions to the decision were far too excited. The judgment will not change much. Almrei will remain in detention indefinitely. Charkaoui and Harkat will remain on conditional release indefinitely. Security certificates can still be issued and foreigners can still be arrested without knowing the grounds for their arrest. Parliament will try to amend the Immigration and Refugee Protection Act to satisfy the Court. There will be more litigation and controversy. Whatever Parliament does will be challenged and it will be years before we know whether the Court is satisfied or whether it may change its mind in one direction or another.

The excited reaction was fuelled by the Court's pompous language and elaborate treatment of simple issues. McLachlin's reasons are full of invocations of liberty, justice, equality and so on that contribute nothing to the decision but signal the solemnity, importance and almost sacredness of the Court. Issues are dealt with briefly or at length with no rhyme or reason and whether or not they are necessary to deciding the appeals. Whether issues are dealt with at length or briefly, whether they are necessary to the decision or not, the reasons are studiously vague and qualified. Context, used thirty-six times, is all. The purpose of reasons for judgment is to clarify the law. If the Court were doing its work properly its reasons would bring clarity to the vague language of the Charter so that governments and people would know what to make of it. But that would limit the Court's freedom to do as it pleases.

The Immigration and Refugee Protection Act was passed in 2001 when we had already had almost 20 years experience with the Charter. The drafters and Parliament must have supposed that it would withstand Charter challenges. Several Federal Court judges dismissed Charter challenges. But it should have surprised no one that the Supreme Court, unanimously, had at the Immigration and Refugee Protection Act. The Charter licences it to do what it likes. We cannot know what it may like until we ask it. And its power would atrophy if not used. So it was predictable that the Court would do something, but predictable also that it would do nothing radical. The judges are not a bunch of radicals, whatever Stephen Harper may think. They are just nine fairly ordinary lawyers enjoying extraordinary eminence and power.

Most laws are effective because people know them and follow them. Occasionally the courts are drawn in to enforce them on the recalcitrant or sort out confusions but, while the authority of the courts is fundamental to the authority of the law, the courts remain largely in the background. The Charter is different. Its effect and reach result precisely from our not knowing what the courts may make of it, the readiness of people to find whatever they like in it, and the readiness of the Supreme Court to give it to them.

There is unusually little in the reasons on the facts and the proceedings that brought the appeals before the Court. For a full understanding of the appeals it is necessary to refer to some of the 46 reported Federal Court decisions running to about a thousand pages of reasons that the three appellants have generated.

The Court heard 15 intervenors; Amnesty International, Canadian Arab Federation etc., etc.. The practice of welcoming intervenors presents the Court as a public forum where all have their say. It is a false picture. In the end only the Court has its say and the intervenors did not represent all opinions but basically lined up with the appellants. The most impertinent intervenor was "University of Toronto, Faculty of Law — International Human Rights Clinic and Human Rights Watch", a clique of specially unctuous law professors, condescending to offer their learning to the Court knowing that they had already infested it with their annointed students serving as judges' clerks.

The underlying problem in all these cases is that the purpose of the impugned provisions of the Immigration and Refugee Protection Act is simply to get dangerous people out of the country but Charkaoui, Almrei and Harkat can all argue that they risk torture if sent back where they came from. The Minister can issue an opinion that the danger to the security of Canada justifies removal to a country where there is a risk of torture but in the case of Almrei such opinions have repeatedly been quashed by the Federal Court. We are left in a quandary. The Supreme Court has no better idea how to get out of it than the government does.