July–August 2008

Contents Related Letters

Re: “Does Independence Matter?,” by Lorne Sossin

Lorne Sossin’s essay on independence of quasi-judicial bodies is thoughtful, insightful and timely (“Does Independence Matter?July/August 2008). However, this is but a part of a larger change in government.

One can also look at the narrowing of the sources of advice to government, the increasing centralization of government, the increasing importance of ideology and the increasing use of the courts to settle political differences. Much of this is the trend in Westminster parliamentary democracies.

In all Westminster governments there is an increasing centralization of authority. This is partly a response to the increasing complexity of public policy problems, more leader-to-leader problem solving, the ceding of sovereignty to supranational bodies and the compression of the news cycle. This has been going on since at least the Trudeau years when the Prime Minister’s Office was first acrynomized as PMO. It continued through Mulroney. But it was the Chrétien focus on control that prompted Donald Savoie to write Governing from the Centre. It has now been taken to the next level.

What we observe in Canada and the Republican United States is the doctrinal focus on less government, rather than better government. David Frum’s Comeback suggests that doctrinal governments of the right based on dogma fail to focus on a positive role for the state in solving problems for real people, preferring to stress getting government out of the way rather than using their power to address policy. Unfortunately, this is consistent with reducing the independence of regulatory bodies.

And using the courts to settle political differences (as in the Cadman affair) reduces the legitimacy of Parliament as a venue for political conciliation.

However, the development that I believe holds the most potential for damage is the undervaluing of the role of the public service in providing non-partisan, professional, courageous advice. Again, while this may look like a new development, it is just the next step in a continuing trend. We risk the decline of both the public service capacity and the demand by the political class for its advice. The current clerk of the Privy Council, Kevin Lynch, is determined to revitalize the capacity of the service. However, governments have found party, ideology, special interests, nongovernmental organizations and think tanks as increasingly viable sources of advice. The problem is that governments tend to find the advisors who think like them. The outsourcing of policy advice to blue ribbon panels, excellent as their members may be, is also a harbinger of a lesser role for the public service.

Government interference in quasi-judicial regulatory bodies is not new. It is not desirable. Sossin rightly points to Parliament as the place to resolve these differences. I am afraid that the roles of the institutions of Parliament, the public service and quasi-judicial bodies are succumbing to the increasing complexity of governing, globalization and ideology. Would that it were only so simple as having more tools than just hammers.

Mel Cappe
Ottawa, Ontario

Lorne Sossin, why not take the hammer out of the Harper government’s hands? In your well-argued essay, you liken the Harper government’s assault on Elections Canada, the Military Police Complaints Commission and Linda Keen, the demoted president and CEO of the Canadian Nuclear Safety Commission, to hammer blows against valued independent institutions. Certainly, when your only tool is a hammer, “every problem looks like a nail.” The government’s hammer in its purge of Keen was minister for natural resources Gary Lunn, who supervises Atomic Energy of Canada Limited. Nuclear-concerned citizens have long disputed the merit of entrusting this minister with simultaneous supervision of the CNSC, which regulates AECL and other nuclear industry operators. Omar Alghabra, the Liberal critic for natural resources, and his NDP counterpart, Catherine Bell, both oppose this combination of roles for the minister, and would separate them and thus remove this ministerial weapon from the government’s arsenal.

I am uncertain if you could find a similar direct and available remedy for the Elections Canada and MPCC injustices, but nuclear safety would be the worthiest victim to spare.

Stephen Salaff
Toronto, Ontario

Re: “Are We Being Helpful?,” by Erna Paris

I have enormous respect for Erna Paris and thank her for her review of my recent book, No Easy Fix: Global Responses to Internal Wars and Crimes against Humanity (“Are We Being Helpful?July/August 2008). However, I discover that we have different understandings of the history of international action on human rights violations in post–World War II history and on what I was discussing in this book.

On history: Cambodia’s internal war occurred during, not after, the Cold War. That matters because the American war against Vietnam included massive bombing of Cambodia, turning a peasantry into an army for the Khmer Rouge. Hutu and Tutsi are not tribes and most ethnologists argue they are not even different ethnic groups — that is explicitly dealt with in the book. The Nuremberg trials did not save “civilization” by ensuring that “even the powerful leaders must be held accountable for their acts.” In fact, these trials were victors’ justice and none of the victors was ever prosecuted for war crimes, although they surely perpetrated their share of them. It is simply not true that because of Srebrenica the United Nations “remembered the judicial precedent of the Nuremberg trials.” The Security Council discovered it had seriously erred. None of the decision makers at the UN or NATO was obliged to account for the terrible errors of the UN “safe areas,” such as Srebrenica, where in fact the UN had no capacity to protect anyone. On another note, I can’t figure out why Paris accuses me to using the term “canard” in respect of state sovereignty: I can’t find the term anywhere, nor would it reflect my views.

I agree with Paris that I did not discuss Kosovo. I chose instead to discuss in seven lengthy chapters Cambodia, Rwanda, Bosnia and Serbia, chapters she has chosen to ignore. On Kosovo, mentioned in only a couple of pages, I’m flabbergasted that she claims I took an “old left” view of the situation — on the contrary, I mentioned in a single paragraph an argument by a neo-Marxist journalist, and made it clear that I did not take sides on that one because, without having done the research, I could not do so. Furthermore, the claim that my book is rooted in Marx and Durkheim dictums is simply not founded. Nowhere have I quoted or even considered their contributions to a literature that, frankly, is so far away from what either of them thought in the 19th century that I cannot understand how Paris arrives at this conclusion! What I did was consider the difficulties of international justice premised on the ideas of individual responsibility — with which I am in general agreement — and the obvious fact that many of the events that occur in genocide, war crimes and crimes against humanity are committed by groups: armies, gangs and ethnic groups where individual responsibility is subordinated to a kind of group think. Far from prioritizing the collective over the individual, I went to some lengths to discuss the agonizing issue of individual responsibility where groupthink conditions pertain. On western justice, I argued that if we are serious about the Responsibility to Protect proposition then we must establish institutional capacity to undertake intervention, something we now lack. I praised the court system but pointed out — I’m hardly alone in this — that for all its other achievements, it has not shown a capacity to bring about reconciliation.

I do admire Paris and her work. I am, however, deeply puzzled by the unsubstantiated claims, the failure to discuss the larger part of the book and the fact that so much of the review is about her own version of history rather than a fair consideration of divergent views actually contained, and supported by evidence, in this book.

Patricia Marchak
Vancouver, British Columbia

I believe Professor Marchak doth protest too much. I liked many aspects of her book, especially her emphasis on the need for better cultural understanding during the planning of western interventions and her long-overdue account of the special plight of women in post-conflict situations. As for her list of presumed slights, I’ll leave it to the readers of No Easy Fix to decide for themselves, except to note that the word “canard” with regard to the argument of national sovereignty appears on page 63, and that several of her comments distort my meaning by narrowing the scope. For example, I would have thought my general observation that African countries were organized along tribal lines for millennia was a truism, not a trigger for a rebuttal about the presumed ethnicities of Hutus and Tutsis. Second, her argument that in creating international criminal courts the UN was not remembering the Nuremberg precedent, but merely responding to its failure at Srebrenica, misses the larger point about context and legal history, which was one of my general criticisms of the book. Finally, it is not a criticism to note that a work may be situated in an important intellectual tradition. The seminal influence of Marx and the great French sociologist Emil Durkheim, both of whom challenged entrenched attitudes to social structures, appeared evident to me in the reading, whether or not overtly stated by the author.

On a more substantive point, Marchak does discuss the issue of responsibility for international crimes thoroughly, but her statement that she does not prioritize the collective over the individual is not reflected in her book. This is not a criticism of her opinions or interpretations. My point is that starting with such theoretical premises seems problematic in a study set up to examine western-based interventions that are defined according to the opposite theoretical assumption: the primacy of individual responsibility. This observation was triggered by the argument of the book, not by my personal views.

Erna Paris
Toronto, Ontario

Re: “Fatal Attraction,” by Wade Rowland

Touche! Wade Rowland.

The mission of public broadcasters like Canadian Broadcasting Corporation, or university-based “community radio” like CKLN FM or CIUT in Toronto, includes careful consideration of “program content and quality.” These university-like values are not defined by “serving the advertisers,” because “what an advertiser wants in programs is something that will promote the sale of its product.”

You add that a public broadcaster “ratings blockbuster” is doubtless an indication that the broadcaster “is providing the programming that Canadians want.”

Would it be a fool’s errand for me to suggest, Professor Rowland, that statutory and other public broadcasters seek realistically to combine superb, university-like content with blockbuster impact?

Such seemingly paradoxical programming could be achieved if proactive broadcast executives address the conundrum you clowned in your introduction:

What are “the differences between cap and trade and a carbon tax?”

Here is how: Arrange, schedule and strategically publicize a broadcast debate or serious discussion between two nationally and internationally recognized Canadian experts on carbon control: Elizabeth May, Green Party of Canada Leader and candidate for Central Nova in the impending federal parliamentary election, and Stephane Dion, Leader of the official Liberal opposition to the Stephen Harper minority Conservative Government of Canada.

Both May and Dion can individually make sparks fly with their pithy, passionate and learned commentary on how carbon capture and sequestration can help solve Canada’s global warming problem. The interaction and dynamic between these two environmental collaborators would undoubtedly raise the roof on broadcast ratings.

The debate moderator could remove from their pocket at a decisive moment in the discussion or debate a cue card with the punchline: “Mr Dion, why are you not running a candidate against Elizabeth May in Central Nova?”

Stephen Salaff
Toronto, Ontario

This essay was brought to our attention by your publicist; while it makes for an interesting read, we must disagree with both its premise and its conclusion. We’re certainly not “a dysfunctional hybrid” on a “fool’s mission.” First, we have never suggested that audience size is the only criterion we use in making decisions about television programming. In fact, we consider a number of factors; the public-service value the programming represents, its cost, its potential for revenue generation and the degree to which it will appeal to a particular audience. CBC’s television service has always been a publicly-subsidized commercial operation existing within a competitive broadcasting environment. Our mandate is to inform, educate and entertain Canadians. We do this with a broad range of programming which includes news and current affairs, documentaries, comedy, drama and sports, all of which are regularly recognized, here and interntionally, as among the best in broadcasting. And uniquely, we offer overwhelmingly Canadian content, especially in prime time when most Canadians are watching television. We make no apologies for producing programs that are relevant and appealing to Canadians. You can’t be a public broadcaster without having a public. We would also suggest that there is no inherent or necessary contradiction in programming being both popular and of high quality and that “popular” programming has always had a place in our schedule (and for that matter, the BBC and other public broadcasters).

Jeff Keay
CBC, Head of Media Relations, English Services
Toronto, Ontario

Re: “Friction over Fan Fiction,” by Grace Westcott

I am a fan writer who has been writing general and slash fan fiction for several years. I read Ms. Westcott’s essay with great interest. The biggest draw of writing fan fiction, for me, is to examine and expand on the source canon. The canon is necessarily limited by pages (for book fandoms) or time (for movies or television fandoms), simply because the authors cannot explore all facets of their creations. The rest, therefore, is open to the reader’s or viewer’s interpretation. It is in these unexplored areas where I play with the characters. Other fan writers have their own reasons for writing; for me, this is my pastime and my outlet for creativity.

I appreciate her even-handed approach in stating the concerns of both sides. However, I do want to comment on a few points raised in her essay. I don’t presume to represent any opinion but my own as a fan writer. First, she writes, “What is needed is an online code of respect that recognizes and addresses authors’ rights and legitimate concerns.” The online fan fiction community is diverse and only loosely connected across multiple fandoms. However, it operates under universal and unwritten rules of conduct regarding fan fiction. From what I’ve seen, the vast majority of fan writers willingly abide by these codes because they know it is in their own best interest. For the few who do not, the community itself metes out punishment swiftly and harshly, thereby effectively policing their own. By far, the biggest infraction is attempting to profit from fan fiction, and that is simply not acceptable in the community.

I do agree that an open dialogue with authors is needed, so they know fans are aware of and respect their concerns. For example, if authors do not want fan fiction based on their work, the community will try to comply with their wishes. I use disclaimers to respect their right as owners of their creations. I need their tolerance, if not their blessing, for me to continue writing fan fiction; I write out of love for the authors’ creations, and the wish to celebrate them with fellow fans.

Finally, I am intrigued by her conclusion: “… its shadowy status – largely tolerated, but legally vulnerable – leaves it just where it ought to be, in a healthy state of tension between fans and authors.” The fan fiction culture developed in this gray area and has existed there for many years. From what I’ve seen, most fan writers have been content, if slightly uneasy, to remain in this shadow. Unfortunately, because of the recent media spotlight on fan fiction, and because of commercial, for-profit sites like FanLib which host fan fiction, I believe it is only a matter of time before fan fiction is tested under copyright law. When, not if, this happens, I hope the Organization for Transformative Works will be a strong advocate for the fan fiction community.

TD Laing

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