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HOW TO AVOID SEXUAL HARASSMENT AT THIS YEAR’S OFFICE PARTY

It seems that everyday, another celebrity from the entertainment or political world sees their career come crashing down as a result of inappropriate sexual conduct, generally in a workplace environment and frequently involving a co-worker or a subordinate.

We are also in the season of the holiday office party. No office or work situation is more fraught with danger than an open bar and workers in the festive spirit.

Although damages and settlement awards involving workplace harassment claims will never compete in terms of either size or volume with those involving litigious Americans, Canadian employers need to be cautious. The #MeToo movement is shining attention on the important topic and the inevitable result is that the boundaries of workplace sexual harassment are expanding.

Our Supreme Court has defined workplace sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment”.

Virtually any form of behaviour (actions or words) could meet that definition if they are unwelcome and sexualized.

Further, there must be a connection to the workplace. If a small group of employees go to a bar after work, that connection is probably not met. However, a company business trip or conference and a visit to a pub would most likely qualify, as would activities on the company sponsored softball team.  There is little doubt that the office Christmas party is a work-related event, even if attendance is optional.

Employers have an obligation to ensure a workplace, broadly defined, is free from harassment, sexual or otherwise. Historically, Human Rights Tribunals and Arbitrators required a pattern or series of incidents to qualify as harassment.  This too has been modified and now a single serious act, with lasting consequences, will qualify.

In Canada, the federal government has recently introduced legislation for federally regulated employers (banks, communications and transportation) which will force employers to formally investigate and document all complaints of workplace sexual harassment. If the do not, they can be named. Companies will need to avoid the negative publicity associated with not taking these matters seriously.

Most sexual harassment claims in Canada are adjudicated before human rights commissions or arbitrators in the unionized workplace. Damage awards so far have been small.  But with heightened sensitivity and awareness, it is clear that even the allegation of improper conduct can end a career or cause irreparable damage to an employer.  The court of public opinion is often more damaging to a reputation than a court of law.  This explains why employers will terminate an employee on the basis of an allegation.  Acting otherwise (or not acting) would be a public relations disaster for the company.

This is causing prudent employers to rewrite their human resource manuals, including zero tolerance policies and sometimes even banning consensual workplace relationships.

So with that background, here are some suggestions to reduce employer exposure to sexual harassment claims as a result of bad behaviour at the holiday office party:

  • Don’t overserve alcohol to your guests. Consider replacing the open bar with a cash bar and give each guest 2 drink tickets. Even a “toonie” bar deters overconsumption.
  • Don’t hang mistletoe. Outdated, silly, traditions must be modified or eliminated.
  • Do have party monitors and / or camcorders watching for inappropriate behaviour. Even a non-functioning camera will serve as a deterrent to bad behaviour.
  • Have the event on a weeknight; people will generally stay longer and drink more on a Friday after work or Saturday evening.
  • Serve more food; guests need something to do. Better an extra chicken wing than an extra cocktail.
  • Ask bartenders, servers and even some sober employees to keep an eye on things and events and bring potential problems and issues to the manager in charge of the event.
  • Consider moving the event off site. But this can go either way; some people are more “relaxed” at an offsite party and might let their guard down more than normal. Alternatively, having the event at an elegant or upscale establishment makes boorish behaviour less likely.
  • Patrol areas adjacent to the party—hallways, corridors, elevators and secluded areas.
  • Be vigilant in watching for guests who appear to be in an uncomfortable situation or conversation. If a person appears to be visibly uncomfortable, intervene by joining the conversation or invite one of the participants away (“Jim needs to speak with you for a minute”).
  • You can even encourage small groups of employees to develop a buddy system and a “safe signal” (such as constantly rubbing an ear or eyebrow) that alerts the other members of their group that someone is in an uncomfortable situation from which they cannot extricate themselves.
  • Make sure you have a general harassment policy and protocol in place and make sure that any party complaints are investigated, documented and dealt with consistently as any other work-related harassment complaints.

 

Although inappropriate sexual behaviour is on a continuum from criminal sexual assault to unwanted sexual attention, anything on that continuum can cause problems in the workplace. For the last twenty years, employers have had to take precautions to ensure their guests get home safely after an office party to avoid host liability if one of their guests is involved in a serious motor vehicle accident.

In 2017, employers are going to need to take comparable precautions to ensure the workplace, including the office holiday party, is a harassment free environment. Proactive measures will reduce the likelihood of an incident and also mitigate employer responsibility if there is one.  Most importantly, it will help insure that ALL of your employees and invited guests have a safe and enjoyable time.

JURISIDICTION OVER THE REGULATION OF CANNABIS (Federal, Provincial and Municipal)

A number pf Stakeholders, including municipal planners, have asked me to review Bill 26: “An Act to Control and Regulate Cannabis”, in preparation of the legal possession and consumption of regulated cannabis beginning July 1, 2018.

The following brief analysis will be of interest both to municipalities, who will be tasked with policing, business licencing and zoning regulation for vendors and also to those who might wish to apply to be legal vendors.

All three levels of government will be involved in the regulation of cannabis.

In addition to decriminalizing, possession of less than 30 grams of cannabis, the federal government will regulate production, quality control, tracking seed to sale, continued regulation of medical cannabis and setting the minimum age for consumption (at 18).

The provinces are in charge of wholesale and retail distribution, retail delivery mode (private, public or hybrid), workplace safety and joint responsibility with the feds for highway traffic safety and impaired driving.

Municipal responsibilities will vary by province, but will include zoning, business licencing, municipal workplace safety, policing, especially re: consumption in public places and impaired driving. The municipalities will either be involved directly or in collaboration with the province regarding rules for retail locations and areas where cannabis may be consumed in public.

Bill 26 “An Act to Control and Regulate Cannabis” was tabled on November 16, 2017. However, most of the salient details had been disclosed in an Alberta Justice Working Paper, following an extensive public consultation process.

Bill 26 amends the “Gaming and Liquor Act” and if fact renames it the “Gaming Liquor and Cannabis Act”. Interestingly, it does not rename the Alberta Gaming and Liquor Commission (AGLC). The AGLC, which has regulated private distribution and retailing of alcohol in Alberta since 199 3 will be given comparable authority for oversight, compliance and retail licensing and enforcement of violations.  The legislation also enables online sales (not through private delivery) and creates restrictions on youth possession and public consumption.

 

Bill 26 Highlights:

-Maintains the federal minimum age for purchase and use at 18;

-Establishes provincial (non-Criminal) offences for possession by persons under 18, of five grams or less of cannabis;

-AGLC mandated to oversee distribution, compliance and enforcement of the retail cannabis system, including regulatory guidelines and licence requirements for private cannabis retailers;

-Bans co-location of cannabis sales with alcohol, pharmaceuticals and/or tobacco

-Province will operate online distribution and sales;

-Establishes restrictions re: public spaces where cannabis can be legally smoke or vaped;

-Establishes authority to augment federal regulations on advertising, labelling and promotion of cannabis and cannabis products.

 

It is anticipated that the distribution and retail systems will operate similarly to how AGLC fulfills it mandate regarding the distribution and retailing of alcohol in Alberta. This should promote a level playing field between large corporate and small craft producers.

Similarly to liquor regulation, AGLC will set terms and conditions on licenses, will inspect                                                                         licensees and address violations.

The ban on co-selling alcohol, tobacco and pharmaceuticals is interesting. It is unclear what level of barrier will be required, if the operations need only be physically separated or if there must be an actual distance in addition to the physical barrier between the selling of the products.

Also, it is clear that although Bill 26 prohibits co-sales of cannabis with certain specified products (alcohol, tobacco and pharmaceuticals), it is unclear what if anything besides cannabis can be sold at that location.

90.09 The AGLC will not issue a cannabis licence unless:

“(a) the business under which the activities authorized by the licence will be carried out is separate from any other business of the applicant, and

(b) the activities authorized by the licence will be carried out in a location where no alcohol, tobacco, pharmaceuticals or other things are sold except cannabis unless the other things sold are cannabis accessories or prescribed things”

 

This is interesting drafting. It initially appeared unnecessary to specify alcohol, tobacco and pharmaceuticals, when the more general “other things are sold” is also prohibited.

Regarding “Cannabis accessory”, reference is made to the federal act. Bill C-45 states in the definition section:

 

Cannabis accessory means:

  1. a thing, including rolling papers or wraps, holders, pipes, water pipes, bongs and vaporizers, that is represented to be used in the consumption of cannabis or a thing that is represented to be used in the production of cannabis; or
  2. a thing that is deemed under subsection (3) to be represented to be used in the consumption or production of cannabis.

(3) For the purposes of the definition “cannabis accessory” a thing that is commonly used in the consumption or production of cannabis is deemed to be represented to be used in the consumption or production of cannabis if the thing is sold at the same point of sale as cannabis

 

This so called “deeming cannabis accessory” is especially broad.

It would appear obvious that the word “Including” in (a) means that the list the follows is not meant to be exhaustive.

But the deeming provision is ambiguous. It appears to attempt to be two-part test to qualify as a deemed accessory:

–commonly used in the consumption or production

–the thing is sold at the same point of sale as cannabis

 

But due to the awkward wording in (3) is “deemed to be represented”, it appears something could be “represented” to be an accessory whether it is commonly used or not.

It would appear that ANYTHING that is sold at the same point of sale as cannabis Is deemed to be represented to be used in the consumption or production.  However, that is both counterintuitive and self fulfilling, that an item can be deemed an accessory simply de facto by it being sold at the same point of sale as cannabis.

The more logical interpretation is that an item must be both commonly used in consumption or production and represented to be so used by being sold at the same point of sale. But this definition would lead to the also self-fulfilling conclusion that if something was not sold at the same point of sale, it cannot be deemed to be represented to be an accessory and therefore by definition could not be deemed an accessory to be sold contemporaneously with cannabis in Alberta.

What appears to be more clear, however, is that in Alberta whatever is an “other thing” or cannabis accessory, it cannot be alcohol, tobacco or pharmaceuticals. It is clear from 90.09 (1) (b) that “other things” are distinct from alcohol, tobacco and pharmaceuticals.

 

I expect some creativity as merchants attempt to satisfy what is a cannabis accessory so that it might sell said accessory in conjunction with cannabis.

 

The province will establish rules regarding hours of operation and location, distance from schools and community centers, the training of staff and controlling the initial growth in the number of retail outlets.

By regulation, the province will regulate the day and hours when cannabis may be sold and regs will be passed:

“authorizing a municipality to pass bylaws in respect of “the hours of sale and use of cannabis on the licenced premises and the areas of the licenced premises where the sale of cannabis may occur”.

This refers to specified classes of licenced premises where sale and consumption may occur (cafes and lounges). That licensing will not immediately be available but presumably will be one day and the legislation specifically authorizes it.

Finally, the Act, prohibits a municipal development authority from issuing a development permit if the proposed development does not comply with the regulations respecting the location of the premises and the distance from other premises.

But it will be the province, through regulation, that determines design requirements and minimum distances between the licenced premises and other licenced premises and also schools, community centers and liquor stores.

The bulk of policing will fall on the municipalities.

Adults will be able to posses up to 30 grams of cannabis

Consumption of cannabis will be allowed in homes and public places that allow smoking but not in cars, hospital property, school property or a child care facility. Cannabis may not be consumed at a retail seller’s licenced location.

When transporting in a vehicle, cannabis must be secured in closed packaging and be kept not within the reach of either the driver or other occupants of the vehicle. There will be zero tolerance for drivers under the age of majority; but those who possess 5 grams or less will receive a non criminal provincial ticket.

Municipalities may create additional restrictions on public consumption using their existing authority re: regulating smoking in public places.

The federal government has proposed strict rules regarding advertising and labelling of cannabis. This largely mirrors current tobacco advertising regulation, which precludes anything that might make it appealing to minors and advertising must contain warnings and accurate product information. Advertising will be restricted to locations where minors are prohibited and there will be limits (by not yet announced regulations) on displays and instore promotion.

Full details on licensing and establishing a cannabis retail operation will become available in January 2018. But the framework legislation makes it clear that anyone who works at a retail outlet will have to be at least 18 years of age and will have received AGLC training to educate customers on the potency of products and the risks associated with cannabis use.   Workers will also have to verify the age of any purchaser and make them show ID if they appear to be under the age of 25.

The AGLC will provide all oversight and regulation regarding the distribution and sale of cannabis. I will have more to say about the requirements to become a retailer or cannabis agent in a subsequent paper.

Municipal police forces will be tasked with all compliance unrelated to the distribution and retailing including legal possession (up to 30 grams), places where cannabis can be legally consumed, legal growing (up to 4 plants) for personal use and drug impaired driving. I will tackle that complicated topic in a subsequent post.

The policing costs will be considerable on municipalities. The federal and provincial governments have not yet finalized a revenue sharing formula between them regarding taxation of cannabis. It is unlikely that municipalities will get a piece of that lucrative pie.

Municipalities can likely cover the costs associated with zoning and business licensing through the establishment of a cannabis business licence fee. But as with municipal finance generally, the municipalities limited sources of revenue will create challenges budgetting the resources needed to provide policing service following the legalization of cannabis.

Municipalities might need to consider imposing a Business Tax pursuant to Part 10, Division 3 of the “Municipal Government Act” on licensees in order to attempt to recoup some of the costs the municipalities will incur as a result of its expanded responsibilities once cannabis becomes legal in Canada.

 

 

 

 

 

 

WHEN TO TALK AND WHEN TO KEEP QUIET

I neither like, nor generally watch, award shows. I like to scan a list of winners and make an effort to see the films or watch an episode of the show and then decide for myself. As a non-fan of the over the top, glitz, format, I am not sure how I feel about award recipients using an acceptance speech as a political soapbox. I suppose if I were a fan of the format, I would disapprove of political speeches, mindful that the broadcasts are already too long and preferring the gala focus on the more important matters of designer gowns and accessories.

I do have an opinion, however, on celebrities who attempt to use their status to confuse their fans regarding some supposed authority to speak intelligibly on controversial matters. Climate change is real but the ecological systems in play in the oil sands near Fort McMurray are complicated. So when Jane Fonda does a guided flyover (guided by Green Peace) and then describes how the experience effected her to her bones, she does herself, and in fact her brand, a disservice. When challenged by a citizen journalist regarding first nation participation in the projects, she was a deer in the headlights and had to be rescued by a handler. Her subsequent press conference in Edmonton had to be “rescheduled” because of her plane, which is powered by fairy dust, was late arriving in Edmonton.

I also have strong feelings about public office holders and those who soon will be, from entering the fray. When Donald Trump took to twitter to describe Meryl Streep as one of the most overrated actresses in Hollywood and a “Hillary flunky”, he demonstrated the disposition of a petulant child not of a grounded statesman. Moreover, his participation kept the story in the news for another day (several days if you consider this column)!

On this point, Alberta Opposition Leader and Fort McMurray MLA, Brian Jean, gets a conditional passing grade. Although, Jean defended the energy industry and his home town, while pointing out Ms. Fonda’s lack of authority to speak on Northern Alberta ecosystems, he did not attack her acting ability. Had he, it would have been tantamount to the error that she and Trump committed—expressing an opinion on a matter for which you are not an expert. He came close, however. By releasing on social media, a photo of a smog covered Los Angeles beside a photo of a sunny day in Fort McMurray, he undercut his own argument. One need not critique another town to defend your own.

Meanwhile, the three-ring circus surrounding President Elect Donald Trump continues to perform in Washington. Amid controversial and challenging confirmation hearings on Capital Hill, more leaked security documents suggest that Russia or Russian hackers or somebody associated with Russia has in its possession compromising and embarrassing “stuff” on the President Elect. Seriously?

About a month before America voted, a video surfaced where the then Apprentice star expressly defended his ability to sexually grope women. A video which would have invariably caused any leader of any Canadian political party to dump their candidate (remember the guy who peed in the cup or numerous other candidate indiscretions?) didn’t matter; he won the Electoral College anyway. I cannot even imagine anymore what qualifies as “salacious” or what the (non)consequence might be.

Yesterday morning, the President Elect held his first press availability in close to six months. I say availability rather than briefing or conference because the latter terms imply some purpose or at least structure. In a rambling, unscripted 10-minute opening, Trump’s mind wandered from many unequivocal statements such as he being the “greatest jobs producer that God ever made”, to the auto industry, to the need to fix the pharmaceutical industry and the “very great bands” that will play at the Inauguration.

As with all of his unscripted ramblings, it was replete with odd qualifiers and quantifiers. My cabinet nominees are “very, very qualified”, we will be “tremendous at creating jobs” or “ISIS is number 1 tricky”.

The questions he took centered almost entirely on security, security leaks and Russia. Trump finally acknowledged that it was Russia that was responsible for hacking into DNC computers; but then blamed the Democratic Party for inadequate cyber security.

Apparently, last night via twitter, Trump compared the United States Security Establishment and media co-conspirators to Nazi Germany over leaked and then published documents. He took no questions from CNN Reporters, who he accused of publishing “fake news”.

The Nazi Germany analogy is always the Hail Mary of a debater’s empty arsenal. There are few, if any, modern day atrocities that compare to the Holocaust. Yet a man, who in ten days will occupy the Oval Office, goes there, when a mild rebuke would suffice (assuming that his accusations are even true).

But that is what America and the rest of the world must now contend with. An incoming president without nuance or internal filters. Prone to hyperbole and exaggeration, sparse with facts and actual data, thin skinned, yet with “very, very, tremendous” bravado.

Sadly, Donald Trump shares the policy detail and acumen of Jane Fonda but not the speaking eloquence of Meryl Streep.

THE PROVINCE IS STILL STANDING

It is a New Year and I now reside in a province that is subject to a carbon tax. Yes, on January 1, Alberta’s Socialist Lite Government implemented a 4.49 cent tax per litre of gasoline, 5.35 cents on diesel, 3.08 cents on propane and $1.011 per gigajoule of natural gas.

The reason for the disparate product levies is that the rate is based on the amount of carbon released by the product when combusted, not on the volume of the product itself. There is no levy on electricity, which strikes me as odd because we still have coal fired power generation in this province, although it is being phased out.

Since I won’t get a natural gas bill until the end of January, the only immediate effect on me will be at the pumps. Gasoline prices in the Edmonton market are always erratic. Regular Unleaded traded between $0.89 and $0.95 most of the fall, then inexplicably bumped up to $1.08 right before Christmas. I was away over the holidays; when I returned on January 2, it was $1.10. Tuesday, I saw some stations at $1.06. Today, everybody appears to be at $1.03.

Nobody understands gasoline pricing. It is an unfathomable combination of imperfect competition imposed upon the price of crude, refining capacity, inventory and futures speculation. However, I do know this much: a refinery on the Gulf Coast can go off line and the result will be more than a 4.49 cent spike at the pumps in Edmonton. Which is to say, do not expect seismic shifts in consumer choices over a 4.5 cent carbon tax. Mass hysteria maybe; but little change in consumption habits.

Social Media and Talk Radio are replete with doomsday predictions and photos of politicians filling their tanks or adjusting their thermostats accompanied by some choice words for Premier Notley.

Nobody likes taxes; but everybody likes government services. And this carbon tax, similar to almost every other source of government revenue is just that—a source of government revenue. The NDP Carbon Tax makes no claim of revenue neutrality; so, at the very least, it can be said to be honest.

It is a tax, plain and simple. Much of the cry and moaning surrounding it centers on two arguments: Alberta is in a deep recession and Albertans do not accept sales taxes. The latter is pure mythology. Alberta has a bevy of hidden sales taxes on cigarettes, liquor and even a hotel room tax dedicated to tourism marketing.

The former complaint is slightly more compelling. Like any tax increase, Albertans’ current ability to pay it is reduced. If your business is down (most are) or you have lost your job (>65,000 of us have) you have no, or at least limited, ability to pay more.

But the Government knows this and the spinning has begun. Environment Minister Shannon Phillips was dispatched to a Media Availability Session on January 2 (a notional holiday since the New Year fell on a Sunday). She urged Albertans to look past higher pump prices and focus on the upcoming “benefits”. Top of the list was the Prime Minister’s conditional approval of two much need pipeline projects.

Next was the soon to be launched three new energy efficiency programs including free installation and rebates for homeowners. Indeed, the Government has a long list of project and priorities it needs to pay for. Funds will be made available for farms, businesses, non-profits and universities and hospitals to address heating, cooling and lighting. The Minister went on to boast that carbon tax revenue will be used to fund green infrastructure projects, invest in renewables, and lower the small business tax.

And don’t forget the rebate cheques! They will start flowing this month to low and middle income Albertans to help offset the pain of the carbon tax. Phillips concluded: “It’s day two of the carbon levy and the province is still standing”.

Indeed it is. In fact, other than the opposition dissing and counter political spin, not much has changed. Nor is it likely to. It was -24 C Tuesday; predictably my wife cranked the thermostat up. Cars were in que at gas pumps. This weekend, if it warms up, I will go snowmobiling. I doubt if a 4.49 cent tax will deter my fellow revellers. If it stays cold, I will stay inside with the thermostat still cranked.

And that is the rub here. If the government believes this carbon levy is going to change our consumption habits, it is sadly mistaken. Alberta is cold in the winter and is sparsely populated. When it gets cold, we need natural gas. We might be able to reduce consumption marginally by installing an energy efficient furnace, but we are still going to consume.

And gasoline—I have spent $1.50 per liter in 2008 and $0.59 per liter in 2015. I have never not gone somewhere I wanted to, or gone somewhere I didn’t need to, based on the price of gasoline.

If the government really wanted me to consume less, the levy would be $1.00 per liter or more; that might cause me to rethink driving to the office or at least carpooling.

Similar to the taxation of alcohol and cigarettes, the government is less interested in your health than it is in your money. If it wanted to curb consumption it would make the taxes prohibitive not merely painful.

On this point, I agree with the Environmental Lobby—a moderate tax of less than 5 cents per liter is going to do nothing to address climate change. It is simply a government doing what all governments do—raise revenue, so that it can spend on its priorities and pet projects. And if the government changes, the only thing that might change is the sources of revenue and the specific pet projects.

A YEAR IN THE LIFE OF A RECOVERING POLITICIAN

Exactly one year ago last week, my political career came to screeching halt when I lost my bid for re-election to the House of Commons with less than 20% of the vote.

I knew getting re-elected as an Independent would be a challenge; I was, however, bitterly disappointed with my third-place finish.

Returning to private life after a political career has some unique, but many common, qualities with any other loss of employment. Getting fired hurts; it is a huge blow to the ego and creates the realty that you must now figure out what the next phase of your life might look at.

Any politician who tells you after an electoral loss that “it was all for the best” is either being deceptive or more likely is trying to convince him or herself. Politicians are generally super competitive and a career in politics requires a certain amount of self confidence. Being rejected by the electorate deals that security a tremendous blow and you have to adjust.

I guess the first thing I noticed is how local “players” interacted with me. A sitting MP is used to having his calls put through to other elected officials and local business leaders and having e-mails returned in a timely manner. That all changes. As do public events. Where formerly, constituents would walk across a crowded room just to get a word with the MP and millennials asked for selfies. Suddenly, you are a wallflower. Many people don’t know what to say to a defeated politician; safer to just look away. And if everyone who claims to have voted for me actually did, I’d still be in Ottawa!

Twelve months later, uncomfortably and fake empathy have been replaced with: Are you running again perhaps in next year’s municipal election? Given my suspicion of partisan politics, perhaps the lure of local issues would force me out of retirement. Unlikely; I have won three elections and lost two. I have no intention of gambling my winning record away.

Undoubtedly, the biggest transition for defeated office holders under 55 is vocational transition. I know a handful of defeated PC MLAs from eighteen months ago who are still not working. Those expecting plentiful job offers are soon disappointed. We learn the tough lesson that the skills learned as a Parliamentarian—how to clap on demand and vote as instructed– are not readily transferable to the private sector. Some eventually hang out shingles as consultants—consulting on a variety of topics from international trade to communication strategies. Former cabinet ministers with impressive rolodexes will find work. Some may become lobbyists; although restrictions on lobbying for former “office holders” adds additional challenges to gainful employment post politics.

Unfortunately for me, there is little demand for ‘how to improve democracy’ consultants; fortunately for me, I had my legal training to fall back on. Except similar to colleagues who are engineers or IT Specialists, getting back into a profession after an extended absence presents challenges. Skills quickly become antiquated.

In my case, the Law Society of Alberta mandates that practitioners, who have been out of the profession for over four years, must satisfy the Education and Credentials Committee that they have entry level competence. That wasn’t so much the problem as that the Committee is made up of Benchers (volunteer governors) and they only meet a few times a year; the process took over three months before I got my licence back.

The Alberta economy is deeply recessed and building up a legal practice from the ground up has proved challenging. Fewer houses are being bought and sold and there is little corporate activity; there is no shortage of litigation disputes, only a shortage of clients with the resources to advance them. It will take some time before I have income replacement for the $160,000+ salary enjoyed by a Member of Parliament. I have used my downtime constructively; I have taken courses to become a Practising Mediator and am working towards qualifications to become an Arbitrator.

There are some definite positives, however. I certainly don’t miss the four plus hour flights preceded by airport security twice per week. I certainly enjoy spending more time at home and with my wife; she says she feels the same way. I enjoy my privacy and watching sports on weekends rather than the endless ribbon cuttings, community fundraising dinners and other demands on one’s time.

The best part of the job is the people; the worst part of the job is the people (different people). I miss the debates. Not the contrived theater that occurs on the floor of the House of Commons, but the private discussions in backrooms, committee rooms and watering holes, often with members of different political parties and persuasions.

I don’t miss the partisan wrangling and games. I do miss the ability to contribute to a public policy debate.

It took me close to nine months to wean myself from my addiction to Canadian political news. I read newspapers selectively now and don’t feel discombobulated or that I missed something if I miss “At Issue” on Thursday nights or “the House” on Saturday mornings. Certainly, writing once a week for ipolitics allows me to at least partially satisfy my need to contribute to political discourse.

The transition from elected office to private life is both challenging and full of opportunity. When you are no longer a ‘somebody’ that people want to be seen with, you learn who your true friends are. You reconnect with those friends and family. You learn your true worth as an individual and remember what truly matters over at this website. You regain your privacy and control over your schedule. You humbly accept your fate and your promotion from public servant to sovereign citizen.

ELECTION OR REALITY SHOW?

After concluding Sunday’s pre-debate prognostication, ABC host George Stephanopoulos invited viewers to “tighten your chinstraps” as the second Presidential Debate was about to begin.

What an odd way to introduce an important event to help Americans select a leader for a dignified public office. The Super Bowl: sure; UFC Fight Night: absolutely. But tighten your chinstraps for a Presidential debate?

Except there is nothing dignified about the contest to select the 45th American President. I suppose, appropriately, given who one of the contestants is, this election combines all of the worst ingredients of a bad Reality TV show: drama, conflict, scandal, shock and awe. In reality television, the focus is always on entertaining, as opposed to, educating the viewer.

What really surprised me when the 2005 Billy Bush “locker-room” audio surfaced and now multiple women revealing past episodes of assault, is how little it actually surprises me.

Sadly, I, and I suspect we, have become so accustomed to Trump’s obnoxious behaviour, present and past, that it is becoming more challenging to be shocked or even surprised anymore. We have become insular to Donald Trump in much the same way a terrible realty tv show of the 2000s “Fear Factor, eventually lost its shock value. I thought contestants getting into a small tent filled with bees was shocking until someone had to eat live bugs. Eventually nothing shocked anymore.

And so it is with the current presidential campaign. Knowing the audience was likely more interested in vulgar audio recordings and deleted e-mails than in economic and foreign policy, the first 30 minutes of Sunday’s “debate” was dedicated entirely to character questions. Trump’s response to his misogyny was he only used words, Bill Clinton actually acted and Hillary was an enabler. Trump threatened to throw Clinton in jail and insinuated that she was the devil (he said Bernie Sanders had made a pact with the devil).

Clinton shares some responsibility here. Not only did she try to goad her opponent, she then invoked the wisdom of “my friend Michelle Obama”. When they go low, stay high, the First Lady advised during her speech at the Democratic National Convention. It would have been a better tribute had Secretary Clinton not immediately before and after invoking Obama’s name, enumerate a near complete list of Donald Trump’s many, many, episodes of bad behaviour including the audio tape, the battle with the parents of a fallen Muslim soldier, an Indiana Judge whose parents were born in Mexico and the former Beauty Pageant victor he called “Miss Piggy”.

As reality show entertainment, it ranked up there with shows like “Fear Factor”. You don’t want to watch but you can’t seem to change the channel.

Trump immediately tried to divert attention. When asked about whether he was a good role model for American youth, he talked about ISIS and how he was going knock them out. When Anderson Cooper tried to keep him on point, he became belligerent and complained about the Secretary not being asked by Cooper about the e-mails and that she could respond to his comments but he could not to hers. At one point, he protested that the two moderators and Secretary Clinton made the debate three against one.

It is clear that Trump is completely outside of his comfort zone in any situation where he does not have complete control of the situation and all of the players. In his corporate endeavours and on shows like “the Apprentice”, he and he alone can make decisions and set rules. Surrounded by sycophants and yes persons is how he likes to roll.

Which begs the question as to why he even wants to be president. Has he not read the Constitution? Has he never heard of the formal division of powers, which means he must work with, rather than lord over, the US Congress? Does he not know that the United Nations operates on a majority basis and the USA only gets one vote?

Eventually, Sunday’s debate turned to some actual policy questions.

Trump wants to repeal “Obamacare”; Clinton wants to fine tune the “Affordable Health Act”. It wasn’t the Yale Debate Association, but at least they were discussing something that actually affects the voters.

On this point, I actually agree with Trump. Whether or not he verbally sexually assaulted women or insulted a Muslim War Hero or for that matter if Secretary Clinton surreptitiously deleted thousands of State Department e-mails, has no effect on an unemployed auto worker, a person without health insurance or voters concerned about the deficit, ISIS or climate change.

Character is an important quality to become president but so are policies and ideas. So for the sake of argument, can’t all concede that neither has the moral fibre to lead and then move on to substantive issues that affect peoples’ lives? Certainly Trump, and likely Clinton, would not pass the vetting process to run for any Canadian political party that vets candidates. There are no dedicated points for integrity in this election.

But that is all anybody is talking about. For as long as I could stomach the post debate deliberations, the CNN talking heads, all ten of them, were talking exclusively about the first thirty minutes of the debate, the audio, the subsequent apology, the deleted e-mails blah, blah, blah.

Scandal drives ratings. Sadly, the campaign to elect the US President has degenerated into a glorified reality television show. Trump knows this is entertainment and that is the only reason is he is still even remotely competitive. But as Americans immunize to the shock factor, Donald Trump’s polling numbers are in steep decline. In reality TV, contestants aren’t “voted off the island” or “fired” because they are inferior contestants, they are terminated because the audience has lost interest in them.

If you are really likable or especially if you are despised, the audience will keep tuning in; once you become normalized, the audience will grow bored with you generic plavix.

I understand ratings for the second debate were significantly lower than for the first. Hopefully, this is a sign that with less than four weeks to go, voters are less interested in being entertained and more interested in getting informed.

CAN UNITY COME FROM DISUNITY?

The Calgary Stampede is one of our nation’s biggest parties. It is time for fun, libations and dusting off your Stetson. It is also a time for intense politicking. Barbecues and Stampede Pancake Breakfasts provide an excellent backdrop for speeches, hand shaking and informal one on one conversations.

Premier Notley had a pancake breakfast as did Jason Kenney. Stephen Harper’s Riding Association’s Annual BBQ is a “must attend” event for conservatives and attracts about 700 pretend cowboys and cowgirls.

I don’t imagine Brain Jean was feeling all that festive at Calgary’s Heritage Park last Saturday night. Patrons were expecting the former Prime Minister to announce he was resigning as a Member of Parliament. He did not. What he did instead was enthusiastically and unequivocally endorse Jason Kenney for the Leadership of the PC Party of Alberta.

When Stephen Harper was in charge, having Conservative MPs wade into provincial politics was extremely frowned upon. When the Harperites were in charge, PMO staffers frequently reminded caucus members that as government, “we” must deal with whoever is in the provincial government—government to government.

But with the PCs out of power in Alberta and the CPC out of office nationally, that pretence seems to have changed. Either that, or the MP from Calgary Heritage behaves differently than were his expectations for his caucus.

Not to be outdone, the Interim Leader of the Party, Rona Ambrose, similarly endorsed their federal caucus colleague. Harper encouraged all CPC Members in Alberta to join Kenney’s campaign to lead the PC Party into oblivion.

This is a strange dynamic. I suspect that never before has a candidate promised to destroy the party he hopes to lead. Under Alberta’s Elections law, formal merger of parties or of party assets is not allowed. So, Kenney’s plan is to create a new political entity, which by default means he intends to destroy that which he wants to lead. At least he cannot be accused of having a hidden agenda.

Ralph Klein, a pragmatist, used to say you have to get in front of the parade. Kenney is attempting to swim upstream. In Red Deer in May, the Progressive Conservative delegates voted overwhelmingly in favour of a motion that they continue as “one united Progressive Conservative Party”. Two months ago, the delegates were uninterested in a merger and certainly were opposed to winding itself down.

I worked under two political leaders. Ralph Klein and Stephen Harper certainly had different management styles. Harper was less interested in getting in front of the parade than he was in directing the parade, the route and the speed of progression.

It would appear Kenney is doing the same thing. He knows better than the 1000+ Red Deer delegates. The PC Brand has suffered damage. Therefore, he will create something new once it is out of the way. Many progressives such as MLA Sandra Jensen and former MLAs Thomas Lukaszuk and Dave Quest are openly questioning the congruence of Kenney’s vision with the platform of the PC Party.

But not only are the PCs questioning, many Wildrose supporters were stunned that Harper would endorse someone to lead the PCs and then a united alternative.

What about Brain Jean? The guy that saved the Rosies from imminent extinction following the ill-fated merger, disguised as a floor crossing, in late 2014. That is now three and counting former federal caucus colleagues explicitly endorsing someone else as the next premier of Alberta.

Stephen Harper’s name still carries a lot of weight in Alberta and no doubt the endorsement was very much appreciated. But the former PMs popularity grows as you move right on the political spectrum. Accordingly, the endorsement has ruffled a few feathers among some of Harper’s strongest loyalists, who happen also to be supporters of the Wildrose. Jean supporters, on social media, believe at the very least the former PM could have thrown Brian Jean a bone.

So in the past week, Kenney has antagonized several PC players and many supporters and Harper has offended Brain Jean and his loyalists. If unifying is the art of making a single unit, what we are seeing playout in Alberta is the makings of a nuclear explosion.

There will be many “Kenney PCs”, many recently drafted, who see a united right as the necessary end justified by Machiavellian means.

There will be a strong backlash from the progressives, who will fight to keep “their” party.

There are Jean loyalists, including much of his caucus.

And there are Jean detractors, including some of the Wildrose Ridings Presidents, who are supporting a Resolution calling for an annual leadership review.

The calculation might be as simple as having groups 1 and 4 combine, depose Brian Jean and maroon all of the progressives and Red Tories back to the mushy middle. But the end result of that is a tent too small to contend for, or win back, government and an entity looking remarkably similar to the Wildrose, albeit with a different leader.

I DO NOT UNDERSTAND US GUN CULTURE

The Second Amendment to the United States Constitution reads:

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed”.

The amendment, adopted in 1791, is the oft cited reason that there is such a dearth of gun control laws in the United States.

In the aftermath of the Orlando Massacre that saw forty-nine innocent victims massacred, I simply cannot understand gun culture in the USA. I understand why farmers might need a long gun to keep the foxes away from the chicken house; I do not understand why any civilian requires a semi-automatic weapon. (Incidentally, the AR 15 used in the Orlando Attack is legal in Canada on shooting ranges). I know people, seemingly intelligent people, that believe that an armed society is a safe society—that the solution to mass murder is more, not fewer, guns. If only the victims had been armed, they would have been better able to protect themselves; that gun free zones create undefended and therefore vulnerable targets.

The theory is somewhat analogous to the Mutual Assured Destruction Deterrent Theory during the height of the cold war. — That if both the USA and the USSR each maintained a sufficient nuclear arsenal to blow up not only the other, but the entire planet, neither would have any incentive to start the insanity.

Trusting world leaders to employ restraint is problematic enough, considering the presumptive Republican Nominee for the White House. But seriously, you are going to arm students, church goers and movie attendees??

Or what about the Pulse Nightclub in Orlando? It has been many years since I have been to a nightclub—but I remember that invariably disputes occur over spilled drinks and who is dancing with who. Add alcohol to the mix and…..No, I prefer fewer, preferably no, weapons to more, as a precondition to my safety go to the website.

I am quite certain that 225 years ago, James Madison did not envision AK-47s when he drafted the Second Amendment. Much debate involves the original intent of the amendment. The drafters were mindful of previous attempts of the English to disarm the colonists. Published papers suggest the purpose was to allow a state militia to arm itself against a federal army. Even federalists, such as Madison, recognized the personal “right” to bear arms as an important check against tyranny (internal or external). Only 9 of 13 states immediately ratified the Second Amendment.

The preface to the amendment, “A well regulated militia” supports the contention that it applies only to state rights or collective rights to arm a militia. Alternatively, and much more recently, it has been proposed that the first clause might express the overall intent of the amendment, but the substance is in the second part and the “right of the people” confers to an individual the right to bear arms.

Different Circuit Courts have interpreted the Second Amendment differently. But the matter appears to have been decided conclusively by the US Supreme Court in its 2008 Judgement in “District of Columbia v Heller”. Under consideration was DC’s total ban on handguns.

Justice Antonin Scalia wrote the majority judgement and held that the Second Amendment did indeed protect an individual’s right to possess a firearm and to use that arm for traditionally lawful purposes such as self-defense within the home.

However, he held that like most rights, “the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose”. Accordingly, concealed weapon bans have been upheld as have “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

In the end, SCOTUS held the total handgun ban violated the Second Amendment. But the court placed important limits on Second Amendment rights. There is no high court decision before or after affirming a constitutional right to possess assault rifles.

In fact, in 1994, President Bill Clinton signed into law the Federal Assault Weapons Ban, which prohibited the manufacture for civilian use certain semi-automatic firearms it defined as assault weapons and certain large capacity ammunition magazines. The Bill included a 10-year Sunset provision and the ban expired September 13, 2004.

The Bill was championed by Democratic Senator, Dianne Feinstein. It met opposition in the House of Representatives and the Sunset Clause was offered as a compromise.

The ban was never challenged under the Second Amendment; empirical studies are inconclusive regarding what effect, if any, it had on gun crime because rifles in general and assault rifles in particular, are used statistically infrequently in total gun crimes. The Brady Center to Prevent Gun Violence, however, found that in 1990-1994, 4.82% of gun crimes used assault weapons. When the ban was in place, that number was reduced to 1.61%.

Senator Feinstein attempted to reintroduce the ban several times. After the Sandy Hook School shooting in Newton, Connecticut, Senator Feinstein introduced S. 150, in January 2013. The legislation was similar to the 1994 assault weapons ban but without the 10-year expiration clause. Notwithstanding fierce opposition from Texas Republicans and the NRA, the Bill made it out of the Senate Judiciary Committee. But S. 150 was defeated on the floor of the Senate by a vote of 40-60.

Every time a mass shooting occurs, an increasingly dejected Barrack Obama appears on national television to plead for some meaningful gun control. But as President, he is the Chief Executive and can only enforce a law if Congress passes on. The National Rifle Association is such a powerful and well-funded lobby that many congressmen fear losing an election or primary, to a NRA funded challenger, if they support gun control.

President Obama closed last Sunday’s Press Conference with the query: “I guess we have to decide as a society if we want these types of weapons”. I know I don’t.

WITHOUT A LAW ON ASSISTING DYING—NOW WHAT?

Section 241 (b) of the Criminal Code provides:

Every one who aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

As of midnight Monday that provision in the Criminal law is no longer in effect.

Parliament had until Monday to craft a law allowing physician assisted death in limited and specified circumstances; Parliament missed that deadline.

There is considerable debate concerning what might happen now that there is no replacement legislation. The Government believes that a legal vacuum or void exists. Others believe the “Carter Parameters” will govern. The disagreement among experts and confusion confirms that Parliament must get a new law passed.

What is clear is that currently there are no general Criminal Code prohibitions regarding assisted suicide—-it is unlikely that in the absence of any law, a physician could be prosecuted for assisting in another’s death (under any circumstances). The Supreme Court has invalidated section 241(b)

But it is unclear whether criminal liability would attach to a lay person or naturopath who assisted another to take his or her life. The Supreme Court attempted to limit the unconstitutionality to enable physician assisted death under specified circumstances. But section 241 (b) does not apply only to physicians; it sanctions any one who assists in a suicide. I suspect the old law still applies to everyone, who is not a medical professional; but again there is uncertainty. The mechanics of striking down a law based on the subclasses of “Every One” are awkward. This gray area will be especially difficult regarding providers of alternative medicine.

Some experts believe that only if a patient meets the so called “Carter Test”, would it be legal for a physician to assist. The mechanics of how this would work are also unclear. Until Monday, the Superior Courts in each province have been entertaining on a case by case basis, constitutional exemptions to section 241 (b). But after June 6, Section 241 no longer exists. How do you exempt someone from non-existing provisions?

The ability to apply for a constitutional exemption was not part of the original 12 month stay of the decision; it only became part of the fourth month extension. Accordingly, now that the stay has expired, the section 241(b) prohibition has ended and so too it would appear the right, or for that matter the need, to apply for an exemption.

Respectfully, the Supreme Court itself has muddied the waters. In the “Carter” decision, the Court originally stated this was not a proper case for constitutional exemptions, preferring to invalidate sections 241 (b) and 14 of the Criminal Code. Now that the clock has run out on passing replacement legislation, there will indeed be a legal vacuum.

The Court further muddied the waters by Paragraph 127 of the Judgement. It appears the Court invalidated the sections only for: competent adults, clearly consenting, having a grievous and irremediable condition, causing intolerable suffering. And then this: “The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician assisted dying may be sought”.

That sounds more like an exemption for the specific litigants than a general declaration of constitutional invalidity. But what is clear is that the Court was only considering the specific facts of Gloria Taylor. As such, there are no “Carter Parameters or Test”; Kay Carter’s children joined the legal fight on behalf of Ms. Taylor but the Court’s decision is fact specific to Ms. Taylor. The Court said specifically that it was improper for it to “usurp Parliament’s role in drafting a constitutional law”. The Supreme Court found that the existing law violated Ms. Taylor’s constitutional rights; it was deliberately not providing “Parameters” to guide different factual situations.

The Supreme Court also conceded that: “Complex regulatory regimes are better created by Parliament than by the courts”. (125) The Carter Test or Carter Parameters are legal fictions.

The unfortunate result of time expiring is that there are currently no general prohibitions against assisted suicide but also no regulations regarding assisted death protecting physicians or any other medical practitioners. Although the result might be assisted suicide on demand, I suspect the result will be just the opposite—that physicians will be less likely, not more, to participate given the absence of a regulatory framework.

The respective provincial Colleges that govern physicians, to their credit, have been busy developing guidelines and regulations to assist and guide their respective members. This of course will lead to a patchwork of non conforming and inconsistent standards, specific to each province.

Worse, nurses and pharmacists, who would be able to participate and assist physicians under Bill C-14 do not enjoy comparable guidance from their respective governing bodies.
Bill C-14 is an imperfect attempt to fill a legislative void. It would essentially reinstate section 241(b) of the Code but then exempt certain medical professionals provided that the patient meets certain legislated criteria.

Some experts believe C-14 is constitutionally suspect; that may be so. But at least it only exempts specified medical professionals from assisting in a suicide. And it provides a critical mechanism to safeguard vulnerable patients.

All of that is at risk now that we have no general law against assisted suicide. The government should not have allowed the clock to run out. If Parliament could not make the June 6 deadline, it should have attempted to get a further extension from the Supreme Court or even temporarily repass the law invoking the Notwithstanding Clause of the Constitution, until it could get a compliant law passed.

Anything to pre-empt the legal void we now find ourselves in.

Certainly there will be legal minds more learned than mine that will disagree with my analysis. That debate creates uncertainty and confusion, which underscores the need for an immediate legislative solution plavix generic. We need a law!

WHIPPED VOTES, TIME ALLOCATION, C-14 AND COUNTERINTUITIVITY

It must be difficult for Conservative Members of Parliament to vote “nay” on Liberal Government Motions of Time Allocation, with a straight face.

Time Allocation, which limits further debate on a bill to a specified number of days or hours was imposed twice recently—May 4 on C-14 re: Physician Assisted Dying and then again on May 10 on the Budget Implementation Bill.

It would be difficult, certainly for veteran Conservative Members to argue that democracy was suddenly under attack or that the majority was stifling the Opposition’s right to speak to a measure, when in government those same CPC Members used their majority over 100 times to limit debate. Time Allocation became a routine process; rarely, if ever, in the later stages of the 41st Parliament was debate allowed to extinguish naturally.

Similarly, the Liberal veterans, who felt so hard done by and compromised by the former government’s high handed tactics, now seem all too eager to bring in Closure’s only slightly less intrusive cousin to expedite votes now that is they who are tabling the bills.

The ramifications and importance of the two recent time allocation motions are very different and significant. C-15, the Budget Implementation Act, is a confidence motion and therefore invariably a whipped vote on all sides of the House. The Trudeau Government promised to be more respectful of democracy and allow more free votes. However, traditional confidence measures are exempted from the pledge to liberate caucus members from voting with the government.

One can question the legitimacy and value of continuing debate on any vote that is going to be whipped by all parties. The debate is largely meaningless. The parties, days ago, have immovably staked out their positions. Nobody could possibly be persuaded by any arguments advanced in the continuation of debate. All members will simply vote as instructed by their whips and House Leaders.

I am not condoning time allocation, only cynically explaining the general value of debate in the contrived theater known as our National Parliament.

C-14, the Government’s response to the Supreme Court decision on assisted dying, is another matter entirely. Ironically, another exemption to the Liberal pledge to make whipped votes the exception and not the norm was matters of shared values protected by the Charter of Rights and Freedoms, Arguably, since the prohibitions on assisted death were struck down as a violation of the Charter, the Government could have imposed a whipped vote on the legislation it drafted in response.

However, on such an emotional matter, so deeply ensconced in ethical and personal values and beliefs, most pundits, including myself, argued that a free vote was mandated. And so the Liberal House Leader modified his original position; all parties may and did vote freely at second reading on C-14.

I find time allocation on free votes especially troubling. It is a rare opportunity that a backbench MP is forced to think for himself; generally, they will just vote as instructed. But a free vote requires deliberation and information. It is not only possible but I would suggest probable that one or more thoughtful MPs, who diligently followed the debate and all sides of a complicated issue would be persuaded by one or more of the cogent positions put forward by the many thoughtful speakers, who presented very different positions regarding this complicated matter.

On the other hand, the clock is ticking. There are rare times when matters of public safety or disruption of essential services actually require an expedited vote. C-14 is comparable; if no legislation is passed by June 5, a legal vacuity will exist and there will be neither requirements for, nor prohibitions against, an assisted death. A month is not a long time to get a bill through three readings plus committee hearings in each of the two houses of Parliament. Time is of the essence. When all of the free votes were counted, all but one Liberal and one NDP Member voted in favour; the vast majority of CPC Members voted: “nay”.

Reading some to their speeches, it is clear that many Conservatives have what can be called technical or procedural concerns. Some are concerned that conscience rights of physicians, who object to participating, is not properly protected. Others argue that the process should have to be signed off by a Judge and that nurse practitioners should not be included in the two medical professionals required to approve.

However, the vote at Second Reading is a vote on the bill in principle. If one supports the general intent of legislation that is reflected by a positive vote, then allowing technical amendments to improve the mechanics of the bill. There are no doubt supporters of the bill, who support C-14 in principle, but will then introduce amendments extending the bill’s reach. Advanced directives and inclusion for those not facing a certain and immediate demise are likely amendments by those who generally support the bill but believe it should go farther.

Accordingly, the CPC members who voted against C-14 at Second Reading likely did so based on philosophical, not merely technical grounds (or at least some combination of philosophical and technical opposition). These votes are counter-intuitive. One can oppose euthanasia on moral grounds and/or C-14 because in your view it does not provide adequate protections for the vulnerable.

However, if the vote on C-14 were to fail, there would be NO law against assisted suicide and NO safeguards to protect the vulnerable. Certainly to those opposed, limited scope and protection is preferred to the legal vacuity that will exits on June 6 if no law is passed.

C-14 is not amending the sections of the Criminal Code prohibiting assisted dying; those sections have already been struck down. C-14 is an attempt to provide some parameters and at least some safeguards to a controversial procedure that will become completely legal in less than a month if C-14 fails. Defeating C-14 will not bring those former prohibitions back.