Last week, Canada’s Supreme Court struck down Bill 104, a Quebec law that clarified the status of immigrants and non-English speaking children who attend early grade English language schools. There was understandable disappointment and anger from Quebec politicians.  The unanimous Supreme Court ruling called Bill 104 “excessive”, saying it unjustifiably infringed on minority language rights under the Canadian Charter of Rights and Freedom.  In fact the decision itself infringes on the legitimate role of government.  The government’s policy was perfectly consistent with the Constitution, which guarantees children from English speaking families or who have attended English speaking schools the right to go to English speaking publicly financed schools throughout their schooling.

Bill 104 was passed in to 2002 close a loophole that some non-English educated families had been using to get their very young children into an English language school and thus “earn” the right to attend publicly funded English language schools.  The right belongs to the English speaking minority in Quebec, and not to those who attend private English schools set up to provide non-English speaking children their first year of school solely in order to qualify them for publicly funded English language schooling for the remainder of their education.

Before Bill 104 was passed in 2002, students not eligible for English language schooling  were enrolling in these private English language elementary schools for up to a year solely to  become eligible to transfer to a publicly funded English language school.   Once the child qualified for a public English language school, the same qualification was transferred to his or her siblings.  Private schools were set up solely for the purpose of getting this kind of bogus qualification.

This was never intended or contemplated when the provisions of the constitution were passed.  And logically enough the Supreme Court agreed that the ability to make such a transfer can be interfered in these circumstances.   Such an interference is a legitimate and justifiable infringement of the right to attend English schools, since these schools there simply to create a loophole.  Preventing the exploitation of this loophole, the court agreed, is sufficiently important and legitimate to justify the government’s infringement of a generally guaranteed right.

It stated in its decision: “When schools are established primarily to bring about the transfer of ineligible students to the publicly funded English‑language system, and the instruction they give in fact serves that end, it cannot be said that the resulting educational pathway is genuine.  A short period of attendance at a minority language school is not indicative of a genuine commitment and cannot on its own be enough for a child’s parent to obtain the status of a rights holder under the Canadian Charter.”

However, according to the court, the Quebec Government failed to calibrate the policy in the correct way.  The judges said that rather than setting an administrative rule, “it is necessary to review the situation of each institution (school), as well as the nature of its clientele and the conduct of individual clients”.

This is ridiculous.  It should not be up the courts to decide how much bureaucracy is needed to make a legitimate policy workable.  It should be up to the legislature of the province to decide policy details of this sort. If  the government judges that generally applicable rules are preferable, as opposed to a case by case review of each school and student, that should be its choice.  The courts should leave these matters to legitimate policy makers who know something about the running of schools.  If they do not, they are guilty as charged, of taking on the role of administrative policy makers and thus of judicial activism.

There have been many nonsense complaints about judicial activism since 1982.  When the courts direct legislators to correct laws inconsistent with the 1982 constitution, they are doing their job.  In this case the court has taken on a different role – it has substituted its policy for the legitimate policy of the legislature and the government.  This kind of interference just adds to unnecessary tension and conflict.   The law will have to be re-written, with lots of political turmoil in Quebec, for nothing but trivial reasons. Nobody will be happy.  Please justices, exercise a little restraint.  Let governments do their job, and you do yours.

The B.C. government just announced that it has decided to build a $458-million retractable roof on top of the 24 year old BC Place stadium after the close of the 2010 Winter Games.  The government boasts that the roof will be the largest cable-supported, fully retractable fabric roof in the world.  The costs will be met fully by the government through a loan to the perennial loss generating BC Pavilion Corp., the government company that runs the stadium for the provincial government.

Just a few days before the government confirmed that Translink on the other hand will receive no assistance to make investments in an expanded transit system in the lower mainland.  Any money that Translink needs will have to come from higher fares and property taxes. BC Transportation minister Kevin Falcon said earlier this year TransLink 
already has all the tools it needs to raise the money it requires.  Translink CEO Tom Prendergast says that in that case TransLink won’t be able to run more buses, buy needed new Sky Train cars, increase road funding or add new rapid transit lines.   $458 million would buy a lot of buses and Sky Train cars.  Worse yet, over the past month the government has announced well over $400 million in cuts to womens’ shelters, arts programs, environment programs, education, home care, rehab centres, and a host of other important services.  Infrastructure projects outside the greater Vancouver area are being ignored, including a new bridge in Victoria that even the federal government has funded with 1/3 of the cost.

But the most expensive roof in the history of a sports facility that is home to 10 or less CFL football games and a still to be proved soccer team goes to the front of the line. In Montreal the Allouettes play in a open air college stadium.  The fans love it.  Vancouver never has the snow and freezing temperatures that other CFL teams endure in the fall.  But a few thousand fans must be coddled under a roof that can be rolled back when the sun shines.  Why do we need a roof at all?  If the current one is so bad, take it off – let us enjoy the fresh air like every other large field sports fan in Canada does in except in Toronto.  And do you know the story about the Toronto retractable roof?  It was a boon- doggle too monstrous to contemplate.

David Podmore, chair of the BC Pavilion Corp., the Crown company that runs the stadium for the provincial government in commenting to CBC News said that the project will be completed by the summer of 2011, in time for that year’s Grey Cup.  One hopes that is not a justification.

Podmore it turns out was a good friend and business partner of Jack Poole.  CBC News reported on October 23 that: “His (Poole) longtime friend and business partner David Podmore, the current CEO of Concert Properties, reacted with sadness Friday morning to the passing of Poole”.  Is there some connection here? Poole was the inspiration for the multi-billion dollar taxpayer funded projects now associated with the Olympics. It seems Podmore shares Poole’s love for spending taxpayer’s money on huge construction projects.

Poole was a well know Liberal, having even organized a team to make a run for the Liberal leadership a few years ago.  Poole, a developer, was the reported inspiration for the Campbell government’s addiction to big, costly and unjustifiable mega construction projects financed by taxpayers.  Does his influence in part explain this next spending folly? 

This government is proving to be the absolute worst manager of government finances this province has ever known.  No cost/benefit analyses, no matter how they are done, can justify their huge construction projects built with borrowed taxpayer money.  Their planned deficits exceed by a wide amount the totals of all other governments together in BC’s history.  And yet now this kind of money is thrown at a ridiculous undertaking that no ordinary taxpayers have ever said they want. 

And consider this.  A contract for the new retractable roof has been signed with PCL Constructors Canada Inc.  PCL built the Convention Centre that went $500 million over budget – the largest over expenditure in BC history on a single government project.  The government picked up the cheque for the whole of it, no questions asked.   Now PCL gets another project that has a starting price tag of $400 million, just like the convention centre.  How PCL got the contract has not been explained.  Nothing has been said about whether its record in controlling costs and bring projects in under budget was considered.  One can only conclude that the other bidders (if there were any) must have been a pretty disreputable lot.

Does anyone else feel that this is all a little too close for comfort?  Does anyone else feel that something more than public need may drive this government’s obsession with throwing money around as if it is free for the asking?   Does anyone else feel that this government has got its priorities wrong?  Does anyone else wonder at the arrogance of a government trumpeting this in the face of a crushing deficit and just after announcing cuts to the bone in needed services.

Steven Levitt, author of the widely read Freakonomics, has been widely attacked this week for suggesting in a new book that governments, individuals and businesses face the wrong incentives needed to get them to reduce carbon emissions, and that it is hard if not impossible to find a way to overcome this fact.  He has written in response that he has been widely misunderstood, and that the rumors of his global-warming denial are greatly exaggerated. He says: “[W]e (he and his co-author) believe that rising global temperatures are a man-made phenomenon and that global warming is an important issue to solve. Where we differ from the critics is in our view of the most effective solutions to this problem. Meaningfully reducing global carbon emissions has proven to be difficult, if not impossible. This isn’t likely to change, for the reasons we discussed”.  Thus he suggests an engineering solution, rather than systems of penalties and incentives, which involves pumping sulfur dioxide into the atmosphere from 8 miles up.

His reasons are quite simple, namely that any solutions that require individuals, businesses and governments to reduce carbon emissions depend at a minimum upon them believing that they can count on others to do the same.  Such solutions require that each must respond collectively with measures that themselves inherently reward cheating by others, thus generating corrosive distrust.

All such solutions require rules to encourage actors to behave differently than they now do.   Incentives that in the absence of action reward emitting carbon (because it is cheaper to emit the carbon than stopping) have to be changed if we are depend on changed behavior.  Ones that penalize emissions (because it is more costly to emit carbon than stopping it) are needed.  But the creation of these involves an inherent and awkward truth – namely that most see the most advantageous situation for ourselves as one where we individually escape rules that others have to follow. This contributes to the rational belief, based on self observation, and honestly held, that others are like us and thus cannot be trusted to seriously enforce any rules adopted.  This in turn acts to discourage each from cooperating in the making of such rules, for the simple reason that each does not believe that others will actually follow any rules made.  Each acts on the assumption that none of the others intend to obey any new rules.  This kind of tendency “trickles up” in the sense that individuals believe that individuals and businesses will not seriously alter behavior unless rules are made and enforced by government, both believe that governments won’t unless they are made by all governments, and governments won’t make rules unless all governments make and enforce the same rules.  But governments do not trust each other (why would they; look at Canada’s behavior on Kyoto, for instance?). Thus all can agree that global warming is serious and man-made, that something must be done, but meanwhile hold back on action because they can’t trust the others.  That being the case, they all are discouraged from acting themselves to have rules – after all, that would be costly for them but nothing is going to improve unless all act together.  It is a classic vicious circle of mistrust and resulting paralysis.

Optimists hope that cooperative action can create a virtuous circle of action where each follows the leaders who are determined to act.  Levitt rejects this.  He argues there is just no incentive to follow such leaders, since each will always get maximum advantage by letting others act virtuously while taking the lower cost route of taking no action oneself while benefiting from the virtue of others.  He believes that fundamentally countries are self interested, which is the root of the whole problem, and nothing can change that.

He may be right.  We all hope not.  Many people think that there is a way around the problem, based on contract theory of government.  As long as every country, or at least every one large enough to matter, knows it will suffer global warming harm unless an international contract or treaty is reached, and each understands that it must set up a super national enforcement agency that can impose costly penalties, then the conditions for cooperative action through a climate change treaty can be developed.  That is the current theory.  But no one knows for sure this is true.  Kyoto does not provide a basis for hope.  So far, the possibility of something better at Copenhagen in December is not looking good.

We will find out soon enough whether Levitt is right.  If nothing happens at Copenhagen it may well be because there is not enough trust among countries that others will follow new rules and that too many will selfishly believe that they can escape the need to follow rules that apply to others with the result that none will agree to anything meaningful.  If so Levitt’s argument that self interest drives action in the wrong direction will receive support.  Rather than respond with outrage, we should all pay very careful attention to what Levitt has to say.  Because if he is right, we have a very big problem that we should all think about.