On the Justice System, Presumption of Innocence & the Me Too Movement

Me Too Movement

The Me Too movement (or #MeToo movement), with many local and international alternatives, is a movement against sexual harassment and sexual assault.[1][2][3] #MeToo spread virally in October 2017 as a hashtag used on social media in an attempt to demonstrate the widespread prevalence of sexual assault and harassment, especially in the workplace.[4][5][6] It followed soon after the sexual misconduct allegations against Harvey Weinstein.[7][8] Tarana Burke, an American social activist and community organizer, began using the phrase "Me Too" as early as 2006, and the phrase was later popularized by American actress Alyssa Milano, on Twitter in 2017. Milano and Michael Baker encouraged victims of sexual harassment to tweet about it and "give people a sense of the magnitude of the problem".[9][10] This was met with success that included but was not limited to high-profile posts from several American celebrities, including Gwyneth Paltrow,[11] Ashley Judd,[12] Jennifer Lawrence,[13] and Uma Thurman.[14]

Source: Me Too movement - Wikipedia

MeToo on Twitter

Believe Women

"Believe women" is an American political slogan arising out of the Me Too movement.[1] It refers to the perceived necessity of accepting women's allegations of sexual harassment or sexual assault at face value. Sady Doyle, writing for Elle, argues that the phrase means "don’t assume women as a gender are especially deceptive or vindictive, and recognize that false allegations are less common than real ones."[1]

The slogan has been criticised for encouraging a presumption of guilt. Michelle Malkin, writing for The Daily Signal, suggests that it is a form of virtue signalling.[3]

Source: Believe women - Wikipedia

BelieveWomen on Twitter

While much of this movement has focused on the entertainment industry it is for all women and particularly those exploited by men in positions of authority over them. While it goes beyond criminal activity and extends to inappropriate and socially unacceptable behaviour much of it is focused on how the justice women treats women who are victims of sexual assault and exploitation.

The Big Five Principles of Our Justice System

So we will start by looking at what I see as the big five principles of our Justice System.

 

Blackstone's Ratio

In criminal law, Blackstone's ratio (also known as the Blackstone ratio or Blackstone's formulation) is the idea that:

It is better that ten guilty persons escape than that one innocent suffer.[1]

As expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s.

Other commentators have echoed the principle; Benjamin Franklin stated it as, "it is better 100 guilty Persons should escape than that one innocent Person should suffer".[4]

Source: Blackstone's ratio - Wikipedia

Presumption of Innocence

The presumption of innocence is the principle that one is considered innocent unless proven guilty. It was traditionally expressed by the Latin maxim ei incumbit probatio qui dicit, non qui negat (“the burden of proof is on the one who declares, not on one who denies”).

In many states, presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN's Universal Declaration of Human Rights, Article 11. Under the presumption of innocence, the legal burden of proof is thus on the prosecution.

Source: Presumption of innocence - Wikipedia

The principle, now protected by section 11(d) of the Charter, that everyone accused of a crime is presumed to be innocent until the Crown has proven the accused’s guilt beyond a reasonable doubt to the satisfaction of a judge or jury.

Source: Presumption of innocence - Irwin Law

Beyond Reasonable Doubt

Reasonable doubt is a term used in jurisdiction of common law countries. Evidence that is beyond reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems.[1]

Generally, prosecutors bear the burden of proof and are required to prove their version of events to this standard. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no "reasonable doubt" in the mind of a "reasonable person" that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a reasonable person's belief regarding whether or not the defendant is guilty.

Source: Reasonable doubt - Wikipedia

The evidence here must be so complete and convincing that any reasonable doubts as to the guilt of the accused are erased from the minds of the judge or jury.

The evidence here must be so complete and convincing that any reasonable doubts as to the guilt of the accused are erased from the minds of the judge or jury. This is the rigorous standard of proof that the Crown prosecutor is required to meet for each element of the offence in a criminal case.

Source: Beyond a reasonable doubt - Irwin Law

Jury Trials

A jury trial, or trial by jury, is a lawful proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.

Jury trials are used in a significant share of serious criminal cases in almost all common law lawful systems (Singapore, for example, is an exception), and juries or lay judges have been incorporated into the legal systems of many civil law countries for criminal cases.

Source: Jury trial - Wikipedia

Adversarial Justice System

The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly.[1][2][3] It is in contrast to the inquisitorial system used in some civil law systems (i.e. those deriving from Roman law or the Napoleonic code) where a judge investigates the case.

The adversarial system is the two-sided structure under which criminal trial courts operate that puts the prosecution against the defense.

Source: Adversarial system - Wikipedia

The Question of Consent and Credibility

The Law of Consent in Sexual Assault

Canada has a broad definition of sexual assault. It includes all unwanted sexual activity, such as unwanted sexual grabbing, kissing, and fondling as well as rape.

Sexual activity is only legal when both parties consent. Consent is defined in Canada’s Criminal Code in s. 273.1(1), as the voluntary agreement to engage in the sexual activity in question. The law focuses on what the person was actually thinking and feeling at the time of the sexual activity. Sexual touching is only lawful if the person affirmatively communicated their consent, whether through words or conduct. Silence or passivity does not equal consent.

Source: The Law of Consent in Sexual Assault - LEAF

Further information:

Brochure: Respect Sexual Consent - Royal Canadian Mounted Police

No Means No: Understanding Consent to Sexual Activity (Public Legal Education and Information Service of New Brunswick)

Let us start by rephrasing Benjamin Franklin's version of the Blackstone ratio with a more specific reference.

"it is better 100 rapists should escape than that one innocent man should suffer"

It does not sound quite so enlightened when made more specific. But that is close to reality due to the difficulty obtaining convictions in sexual assault cases. These are cases where there are often no witnesses except the victim and the accused and while there might be forensic evidence this can only prove whether a sexual act took place but not the key factor in guilt which is whether or not there is consent. So we are left with a “he said she said” scenario.

And in the “he said she said” scenario the truth become a matter of credibility and in our society one's credibility has been tied to one's social status – the ”he's a respected member of the community, he couldn't be lying” factor. Not to mention the reluctance to even report assaults committed by people in positions of power over others because of potential repercussions and the fact one won't be believed anyway. With the Me Too Movement we have seen that particularly in the entertainment industry.

But it is even more insidious (and evil) in regards to the exploitation and sexual assault of children. We have seen numerous cases of what can only be called sex assault rings comprised of so-called respectable members of the community targeting vulnerable at risk children with perceived low credibility simply because these “respected” people knew they could get away with it. And they did for too many years just because of the credibility attached to their social status.

The social standing and supposed moral credibility of religious leaders left them immune from suspicion for years and even when their institutions (one in particular) were made aware of numerous instances of assaults they was swept under the rug because protecting the reputation of the institution was more important than justice or protection for the victims.

So how do we deal with assessing credibility in sexual assault cases where it is a case of believing the victim or the accused.

Should we abandon the concept of proof beyond a reasonable doubt and adopt the preponderance of evidence/balance of probabilities concept used in civil cases.

Preponderance of the evidence

Preponderance of the evidence, also known as balance of probabilities, is the standard required in most civil cases and in family court determinations solely involving money, such as child support under the Child Support Standards Act. It is also the burden of proof of which the defendant must prove affirmative defenses or mitigating circumstances in civil or criminal court. In civil court, aggravating circumstances also only have to be proven by a preponderance of the evidence, as opposed to beyond reasonable doubt (as they do in criminal court).

The standard is met if the proposition is more likely to be true than not true. The standard is satisfied if there is greater than fifty percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[12] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.[13]

Source: Burden of proof - Preponderance of the evidence (law) - Wikipedia

Balance of Probabilities

A standard of proof satisfying a judge or jury that the facts at issue probably occurred as alleged. Sometimes referred to as a preponderance of the evidence or a 51 percent likelihood of occurrence.

Source: Balance of probabilities - Irwin Law

I would suggest we do not want to abandon the principle of proving guilt beyond a reasonable doubt and create a potential new problem of increased unwarranted convictions.

Rather I would suggest instead that judges instructions to juries make it clear that the standard for believing accusers and witnesses is not certainty, which is impossible to have, but rather reasonable belief in the credibility of the witness. In the words of the Me Too Movement judges must give jurors the right to Believe The Women if they reasonably believe them to be credible. The ultimate safeguard being that all 12 jurors must concur for a conviction to occur.

Broader Problems with the Justice System

There are are broader problems with our Justice System than how it deals with sexual offences.

The fist thing we should note is that we did not choose our Justice System. There was no process of examination of options or analysis undertaken . We simply inherited it, like our system of constitutional monarchy and parliamentary government, from the British. That is not necessarily a bad thing.

But our adversarial Justice System does have its problems.

It has been described as a matter of story telling with whoever tells the best story being the winner. In modern day story telling, which is done most often through TV and movies, the best story telling often involves who employs the best actors and the most effective special effects. In the case of the Justice System we are talking about the most expensive lawyers, investigators, and expert witnesses. No matter what the facts are the quality of the legal defence can be the biggest factor in a court's decision.

As well, all the facts are not necessarily available to the court for various legal reasons. If the state uses illegal means to gather evidence it is not available to the court. This is done to ensure the game is played fairly. This is, of course, a difficult matter and peoples' legal and constitutional rights are hardly “technicalities”. But would it not be better to punish those involved in illegal activity separately rather than having courts make decisions without all the facts.

Money can be the biggest factor in the outcome of a case. If you are poor, depending on legal aid or public defenders, you are at a disadvantage against the resources of the state. On the other hand if you are extremely wealthy your legal resources are much greater than those of the state.

There are other options than the adversarial system.

Inquisitorial system

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used primarily in countries with civil legal systems as opposed to common law systems. Countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. The distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider inquisitorial misleading, and prefer the word nonadversarial.[1] The function is often vested in the office of the public procurator, as in China, Japan, Germany, and Scotland.

Source: Inquisitorial system - Wikipedia

The main criticism of such system is that you have one institution, the court, acting as prosecutor, defence, judge and jury. It is a system that would require a huge degree of confidence in the impartiality of the state for it to have credibility with the public.

My own sense is that we would be better off reforming our current system and I would start by looking at sentencing.

Sentencing

The first thing we need to look at are minimum sentences. Zero tolerance and minimum sentences are both concepts based on the idea that circumstances do not matter and no one can be trusted to exercise discretion.

Background on Minimum Sentences

Cleaning up the mandatory minimums mess (Policy Options)

Mandatory-minimum sentencing rules unravelling into patchwork (The Globe and Mail)

Federal government urged to rein in mandatory minimum sentences (The Toronto Star)

Sentencing Based on Accountability, Restitution and Rehabilitation

When it comes to sentencing, one thing the adversarial nature of our Justice System does is create an inclination for sentencing based on punishment and revenge rather than accountability, restitution and rehabilitation.

But there is a sentencing model that does just that, Restorative Justice, using processes such as Sentencing Circles to bring offenders, victims and communities together.

Restorative Justice

Restorative justice is an approach to justice in which the response to a crime is to organize a mediation between the victim and the offender, and sometimes with representatives of a wider community as well. The goal is to negotiate for a resolution to the satisfaction of all participants. This may include a restitution to be given from the offender to the victim, or to take steps to prevent the offender from causing future harm.

A restorative justice program aims to get offenders to take responsibility for their actions, to understand the harm they have caused, to give them an opportunity to redeem themselves and to discourage them from causing further harm. For victims, its goal is to give them an active role in the process.[1] Restorative justice is founded on an alternative theory to the traditional methods of justice, which often focus on retribution. However, restorative justice programs can complement traditional methods.

Academic assessment of restorative justice is positive. Most studies suggest it makes offenders less likely to reoffend. A 2007 study also found that it had the highest rate of victim satisfaction and offender accountability of any method of justice.[2] Its use has seen worldwide growth since the 1990s.[3] Restorative justice inspired and is part of the wider study of restorative practices.

Source: Restorative justice - Wikipedia

Restorative justice

An approach to justice issues that focuses on reconciliation and repair of harm as opposed to conventional retributive approaches. In R. v. Gladue, [1999] 1 S.C.R. 688, Cory and Iacobucci JJ. wrote: “In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime” (at 726).

Source: Restorative justice - Irwin Law

Sentencing circles

Sentencing circles (sometimes called peacemaking circles) use traditional circle ritual and structure to involve all interested parties. Sentencing circles typically employ a procedure that includes: (1) application by the offender; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle; and (5) follow-up circles to monitor progress.

Restorative justice - Sentencing circles - Wikipedia

Circle sentencing

A method of sentencing sometimes used with Aboriginal offenders (and occasionally with other offenders). Typically, the judge, lawyers, police, offender and parents, victim, and other community members and professionals sit in a circle. Everyone has an opportunity to express their feelings about the offence and offender, and their views about an appropriate sentence. If a consensus emerges about an appropriate sentence, the judge will usually impose this sentence, though the judge is not obliged to do so. A body of jurisprudence deals with the appropriateness of circle sentencing for adults, and section 41 of the YCJA recognizes the judicially convened “conference,” which includes the possibility of circle sentencing.

Source: Circle sentencing - Irwin Law

Postscript

Outside of the Justice System we can believe as we choose, no “beyond a reasonable doubt” is required for individuals to use their own judgment as to their own beliefs about individuals' guilt.

As well, individuals, employers, organizations, etc. are completely entitled to hold people to higher standards than whether they committed a crime or not. In fact they should. Criminal responsibility is a pretty low standard, especially for people in positions of public trust or control over others lives, whether it be in the workplace or elsewhere.

On Democracy

What a better way to restart The Fifth Column than by a treatise on how to make our democracy actually democratic. Hopefully this will be the first posting in a newly regenerated Fifth Column.

I write this at a time when there are so many examples of democracy failing us from the “republic” to the south to our own provincial government in Ontario. Much of the emphasis has been on our First Past The Post (aka Single Member Plurality) electoral system but the problem goes much deeper than that.

Democracy Defined

But what is “democracy”. Wikipedia actually has a pretty decent definition here:

Democracy - Wikipedia

Democracy (Greek: δημοκρατία dēmokratía, literally "rule by people"), in modern usage, has three senses—all for a system of government where the citizens exercise power by voting. In a direct democracy, the citizens as a whole form a governing body and vote directly on each issue. In a representative democracy the citizens elect representatives from among themselves. These representatives meet to form a governing body, such as a legislature. In a constitutional democracy the powers of the majority are exercised within the framework of a representative democracy, but the constitution limits the majority and protects the minority, usually through the enjoyment by all of certain individual rights, e.g. freedom of speech, or freedom of association.

Direct Democracy

Let us first dismiss the idea of a direct democracy, not just because it can too easily become the tyranny of the majority but because modern government is too complex for us to all have the expertise and knowledge required to govern our societies while maintaining our normal lives. That is to say governing has become a full time job if one wants to make rational informed decisions. Thus we have invented representative democracy where we chose from among ourselves those we trust to have the wisdom to make judgments in our best interests, usually those are people that share our philosophical approach to society. I fear, in this day and age direct democracy, such as a system of online voting on individual issues (similar to the “initiatives” used a great deal in the aforementioned republic to the south), would turn voting into shopping where the best marketing campaign wins.

Representative Democracy

Choosing representatives that are accountable to us and represent the views of all of the voters, not just the majority, to meet and debate and make laws is what distinguishes democracy from electing a dictator every four years, which is what the present state of our democracy appears to be moving towards.

Public Participation

So we have our first big problem. Democracy requires the participation of all the people to work. Just looking at voting statistics, never mind greater participation in the political process such as choosing candidates and influencing political parties policies. We have barely over a majority of citizens participating. Adding the fact that the wealthy and privileged have a greater participation rate, not to mention greater political influence, than the poor and vulnerable in our society and we can see that our democracy is not truly representative.

So how do we increase the participation of the public in the political process. We have to look first at what is suppressing it, and to that I see a conspiracy of sorts, not a conspiracy of secret meetings and plots but a conspiracy of shared interests on behalf of the ruling class that control our media that influences public opinion. There is a concerted effort to turn government and politicians into an evil them and taxes into our money that they take from us. There is a concerted effort to distance the people from their government and turn it into the enemy. Ironically that allows the “ruling classes” to take control of it and make that claim come true while discouraging the general population from becoming engaged and involved in evil politics.

Government is the People

The truth is quite simple. Government is how the people as a whole make collective decisions for the common good and taxes are how we spend our money collectively for the common good. It is your government and your money. Don't let them convince you there is something evil about it. It is your right and your responsibility to participate.

First Past The Post (aka Single Member Plurality) Electoral System

The other big factor discouraging public participation is that many feel that with our First Past The Post (aka Single Member Plurality) electoral system their votes do not count, that they do not help determine the composition of the legislature if they do not vote for the winning candidate, or they feel forced to vote strategically against the candidate (or party) they least favour rather than for the candidate (or party) they prefer.

Political Parties

So let us talk about political parties. Political parties have become the way that we elect our representatives, at least at the federal and provincial level. There have been exceptions of independent MPs or MPPs, but in most of those cases they have been individuals who were elected as a member of a party and then left it.

Political parties allow individuals with similar ideas to come together to select candidates to seek election on policies agreed to by the party members. They also allow elected members with similar ideas and policies to caucus and work together in the legislature. And not of least importance they finance election campaigns so candidates do not have to be wealthy in order to run for office.

Political parties are what makes modern democracy work but in many ways they are it's biggest problem.

Back in my day, when I was politically active, political parties were run by party activists, the ones who attended meetings, canvassed during elections, called voters and put up signs. These were the people that voted for the parties policies, chose the candidates and elected the leaders.

Nowadays political parties have decided that it is expedient to use nomination meetings and leadership votes as a way to recruit new members. Whoever can recruit the most new members tends to win nomination votes and leadership candidates that can sign up the most new members tend to win leadership contests. It is no longer long term members choosing party candidates and leaders but new members that tend to make the difference when it comes to these decisions. And during election campaigns the policy is not taken from the party policy book but dictated by the leader.

The Loss of Responsible Government and the Cult of the Leader

We are supposed to be a Westminster style Parliamentary government with responsible government. Our Prime Ministers and Cabinets are supposed to be responsible to and accountable to the elected legislatures and can only hold power when they retain the confidence of the elected MPs (or MPPs) and they must answer to them with in the legislature, through such means (but not exclusively) as a daily question period.

However the power of not only individual MPs but also of Cabinet has been decreasing ever since Prime Minister Pierre Trudeau called MPs nobodies off of Parliament Hill and started centralizing power in the Prime Minister's Office. This practice was extended by Prime Minister Stephen Harper and taken to new heights by Ontario Premier Doug Ford, whose caucus and Cabinet seems extremely reluctant to put any form of common sense restraint on his exercise of power.

So we have an Ontario Premier who is only in power because of the votes of new members signed up by the anti-abortion/anti-sex ed lobby to support their pet candidate who transferred her support to Ford which tipped the balance of support to him. He did not originally have the support of the majority of the Tory caucus or a majority of long term Ontario PC members. Yet now he seems to rule by decree with neither his cabinet nor caucus willing to exercise their constitutional role of actually governing.

The Effect of the First Past The Post (aka Single Member Plurality) Electoral System and The Power of Party Leaders

But this, of course is only an extreme case. The more routine situation is for a party to gain a majority of 60% of the seats of the legislature with 40% of the total votes. It needs to be noted these are votes cast for individual members in different constituencies. However most voters are voting for the party, if not the leader, rather than the individual MP or MPP.

This leads to one party with 100% of the power and with that 100% of the power more likely than not to be exercised by the leader, Prime Minister or Premier.

It is not only the sense of fealty that individual MPs (or MPPs) feel to the leader that gives him power but party leaders' powers start with a veto over who can be nominated as a candidate and extend to allotment of question period time and committee memberships and critics roles, and paid positions as Cabinet Ministers and Parliamentary Secretaries for Prime Ministers and Premiers, not to mention caucus membership. No wonder few MPs or MPPs go against the leader.

Electoral Reform, Mixed Member Proportional (MPP) and the Power of Parties and Leaders.

There is a way to eliminate the absolute power of parties elected with a minority of votes and

the absolute power of their leaders while electing a legislature that reflects the will of the voters. It is called Mixed Member Proportional or MMP.

Wikipedia actually has a pretty decent definition here:

Mixed-member proportional representation - Wikipedia

Mixed-member proportional (MMP) representation is a mixed electoral system in which voters get two votes: one to decide the representative for their single-seat constituency, and one for a political party. Seats in the legislature are filled firstly by the successful constituency candidates, and secondly, by party candidates based on the percentage of nationwide or region-wide votes that each party received.

Canada is not a two-party state. We have a wider variety of political views than that and a reasonable number of political parties expressing them. The main effect of a proportional representation system is that the make-up of the legislature actually reflects views of the voters and no party gains a majority of the seats with a minority of votes and and no leader has absolute power. The government must actually be responsible and accountable to the legislature. Critics say this is inefficient and a bad thing. But if efficiency was our goal for government we would not be looking at a democracy at all.

The fact that a government must be responsible to legislators from other parties means its own caucus members will expect the party and leader to be responsible to them also. Indeed there is not one governing party but a governing legislature as it should be in a democracy. Practice meets theory.

How would this work in practice. Federally I would propose a Parliament of 300 members elected as they are now from individual constituencies using the Single Member Plurality (SMP) system and 100 members allocated proportionally so the make-up of the legislature reflects the voters party vote preferences. Each voter would have a vote for an MP representing their constituency and a vote indicating their party preference.

The proportional representatives would come from party lists known to voters ahead of time. To ensure greater democratic representation voters could be given the option to rate the names on their party's list preferentially and that would be used to select the priority in which the proportional members are selected from the lists.

Both constituency candidates and party list candidates must be chosen by a democratic process and not just selected by the party leader, nor should the leader have an undemocratic veto over the candidates chosen by this democratic process.

To those concerned about the increased size of the House of Commons and greater number of politicians I would also eliminate the Senate so that overall their would be fewer federal politicians than there are now.

Fringe Parties and Proportional Representation

One of the criticisms of proportional representation is that it empowers fringe parties, either of the frivolous kind or more dangerously those espousing bigotry and hate, providing them with a voice in the House of Commons (or provincial legislatures).

The Canadian Charter of Rights and Freedoms provides that its provisions are not absolute

1.The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 

 

The same principle can be applied to the electoral system and the concept of proportional representation. We can build provisions into the system to prevent the empowerment of frivolous or hateful fringe parties. The most likely provision being a requirement that parties receive at least 5% of the popular vote before they receive representation under the proportional representation portion of Mixed Member Proportional (MMP).

Parliamentary Reforms

If we want to make party leaders, and Prime Ministers and Premiers, accountable to Parliament and the Legislature we have to decrease the powers party leaders have over individual MPs and MPPs. We can start with eliminating their control over question period access and committee appointments by making them based on seniority (but still distributed by party according to percentage of members that would now be based on popular vote) and having that administered by the Clerks at the Table. Party critics appointments should be determined by a democratic process within caucus, not simply by the leader.

Also only a vote of caucus should be able to expel members from a party caucus, not the dictatorial power of a party leader.

And most importantly party leaders (including Prime Ministers and Premiers) should not be determined in a dubious process by a small number of newly recruited party members but chosen by the people's elected representatives, the members of their Parliamentary or Legislative caucus and be accountable to them. With this process the Parliamentary and government leaders are not determined till after the election by the people's chosen representatives. This puts more emphasis on the people we actually vote for, no longer leaving them as a second thought as we vote according to party leaders. While this will perhaps require a great deal of political will it puts the representative and responsible back in our democratic system.

And of course Prime Ministers and Premiers (and their Cabinets) must also retain the confidence of a majority of members of The House of Commons or provincial legislature.

The House of Commons (and legislatures) should also establish a review of all parliamentary rules aimed at ensuring the role of the democratically elected members are strengthened and enhanced.

These proposed electoral and Parliamentary reforms are designed to ensure that we have a truly representative democracy and not simply a process to elect a dictator every four years.

Municipal Elections and Preferential (aka Ranked Ballot) Voting

Some may have noticed that I have not yet written about preferential or ranked ballot voting where voters list their choices in order of preference, 1st, 2nd, 3rd choice etc. The main advantage of such a system is that it prevents the election of the candidate disliked by the most voters from being elected, as often happens with the First Past The Post system. But it depends on voters second and third choices to elect the winner and can, and likely will, result in an even greater discrepancy between the number of MPs or MPPs elected per party and the popular vote (according to first choices) received by each party.

This of course is why it was Justin Trudeau's choice for electoral reform. Liberals see themselves as a centrist party and everybody's second choice. They believe preferential voting would likely ensure them easy victory in every election and even more dominance in the House of Commons and power for their leader. When it became clear that federal electoral reform was not likely to take that form they quickly abandoned their promise of a new electoral system for the next election.

But there is a place for preferential voting, and that is where parties are not involved, as in most municipal elections in this country.

Without parties competing municipal elections tend to be about the popularity of the incumbent. The other thing about municipal politics is that a large part of the job of a councillor is considered to be about participating in community events and being out and about in the community meeting constituents. In other words, incumbents are paid to campaign for the next election as part of their job.

Defeating an incumbent is very difficult. Even when most voters want to throw out the incumbent their votes are usually divided among several candidates. Preferential ballots allow in effect, holding simultaneous run-off elections until one challenger is left competing against the incumbent thus somewhat levelling the playing field where incumbents have so many advantages.

So I would certainly endorse preferential or ranked ballot voting for municipal elections.

Unable to “View in Google Earth” GPS tracks opened in Garmin BaseCamp or Mapsource – Solution

When I first installed Garmin MapSource (and later BaseCamp) I could open GPS tracks (gpx files) in it and select “View in Google Earth” and Google Earth would open and I would be able to see the tracks in Goggle Earth.

Like many of you, as my recent online research discovered, a while back I became unable to do that but instead I saw a message saying I had to have Google Earth installed (which I did). At that time the solution was as simple as opening Google Earth before attempting to “View in Google Earth” from within MapSource.

However more recently that stopped working and even after re-installing Goggle Earth I could not view the tracks I had open in MapSource (or BaseCamp) in Google Earth.

That is when I went looking online for solutions. The first solutions I found involved editing the Windows registry which I am very leery of attempting so I passed on that solution.

The solution I used involved uninstalling Google Earth and installing an older previous version of Google Earth which I found at http://www.oldversion.com/. The version I installed was version 7.0.2.8415 from http://www.oldversion.com/windows/google-earth-7-0-2-8415.

This returned the original functionality of being able to open GPS tracks in it and select “View in Google Earth” and Google Earth would open and I would be able to see the tracks in Goggle Earth.

This did mean that I did not have all the benefits of the newest version of Google Earth but that was solved by also installing the latest version of Google Earth Pro now available free from https://www.google.com/earth/download/gep/agree.html.

After saving the tracks in the older version of Google Earth I simply opened the latest version of Google Earth Pro and the tracks were there to view and edit or manipulate as I wished.

I should point out that through this troubleshooting process I uninstalled and re-installed Google Earth several times and never lost the GPS tracks I had saved in Google Earth and they were all available in the installed older version of Google Earth and the newly installed version of Google Earth Pro.

I hope this solution is helpful to others who have experienced the same problem as I did.

UPDATE 2017-04-18

Today the new Google Chrome only web-based version of Google Earth (version 9) was released.

On the basis of a preliminary examination I have discovered the following.

It does not appear to have the gpx file import (via MapSource or BaseCamp) nor the track editing capability that version 7 of Google Earth or Google Earth Pro does.

You can, however, get your tracks from Google Earth 7 into the new version by exporting them to your computer as kml files and then importing them into Google Earth version 9.

It appears I will still need to use the computer version of Google Earth (version 7) to create Google Earth view maps, though I may experiment with importing the tracks into the new version to see if there are any advantages to viewing them from it.

Backroad Mapbooks Ontario GPS Map Version 5 Now Available With My Greenbelt Trail Maps Included

Backroad Mapbooks now has Version 5 of their Ontario GPS Map available. Actually it has been available since the fall but I only checked for updates at the start of the Spring biking season.

I am very impressed with the Backroad Mapbooks product, as I state in my review on my “Richard's GPS Trail Maps” website.

Version 5 includes all of the Greenbelt Trail Maps on my ”Richard's GPS Trail Maps” web site. Indeed it includes all my trail maps on the site except for the Stittsville “Jackson Trails” Trail System, which I expect to be included with the next update. I provide them with the tracks for all of my maps and soon will be adding a map of the “Scissons Road Quadrant of the Old Quarry Trail System to the website.

Indeed the Backroom Mapbooks GPS map is the easiest way to use my maps on a Garmin GPS as they are already on the background map and do not have to be loaded. However if you do not have a Garmin GPS, or the Backroad mapbooks GPS map you can download the tracks from my “Richard's GPS Trail Maps” website.

Unlike Garmin, which is primarily a technology company, that purchases it's maps from third parties, likely at the lowest price possible, Backroad Mapbooks is a mapping company that had it start with the goal of mapping all the backroads of Canada and has now extended that goal to include trail systems

The Old Stone House - To Be Saved or Destroyed

There is an old stone house in what was once a rural area and now is within the Emerald Meadows portion of Bridlewood in Kanata. A few weeks ago I biked by it and noticed that, while still standing, it was surrounded by construction and all the doors and windows were missing looking like no attempt to preserve it was being made. I was expecting it to be bulldozed any day but it still stands with construction going on all around it making me wonder if it is going to be destroyed or preserved.

  Update 2014-11-26 - What It Looks Like Now

Started Enjoying Our New Community Mail Box Last Week

I know as a progressive I am supposed to oppose the transition to community mailboxes (CMBs) for all urban and suburban residents but logic prevents me from doing so. Indeed this only seems to have become an issue when it was announced that downtown urban areas would join suburban areas in the use of CMBs.

Our New Community Mailbox

Perhaps I see this differently because I live in a community (Bridlewood in Kanata/Ottawa) where 90% of households have always had community mailboxes (CMBs). It was a year or two after we moved here in 1979 that all new households had CMBs so we were somewhat of an anomaly having door to door delivery and I always thought that didn't make sense. There was no difference in neighbourhoods other than the dates our houses were built.

As Canada Post states:

Ten million Canadian households – or about two thirds of all households in Canada – already receive their mail at a centralized point away from their front door, such as at a community mailbox, a mail panel in an apartment building or condominium, a rural post office, or a curbside rural mailbox. Of these ten million households, four million receive their mail at a community mailbox. Over the next five years, the conversion to community mailboxes will impact about five million Canadian households – or about one third of all households in Canada – that still receive door-to-door delivery.

I do not recall any great protests when CMBs were introduced in the suburbs and all of the problems we hear about regarding CMBs do not seem to exist. There are senior citizens living in these neighbourhood with CMBs, and houses with wheelchair ramps and the residents choose to live here despite the CMBs and seem to be able to cope.

I find it somewhat insulting to suggest that senior citizens cannot walk a block or two to a CMB. I am just approaching Old Age Pension age and I do over 5 km hikes in the forest with a woman in her mid 80s. We are perfectly capable of walking to our mailboxes.

As for people with mobility issues, mail delivery is the least of their problems compared to grocery shopping, doctors appointments, etc. Much more comprehensive solutions and services are required for them, rather than making postal service inefficient for everyone.

Those that live in neighbourhoods already served by CMBs have already found solutions. And while Canada Post has also offered help in such cases, I expect most people would forego the bureaucratic process required by Canada Post and simply ask a neighbour to pick up their mail.

The fact is there are real issues regarding postal service. With the Internet and email people are simply not using the postal service the way they did before. There is considerably more junk mail being delivered than first class mail although there is a potential for more parcel deliveries.

Having letter carriers walking the street bypassing most houses or simply delivering junk mail is simply not efficient. There have been suggestions of reducing deliveries to three days a week but when we are receiving something important we want it as soon as possible. The alternative of using CMBs has already been proven to work for about 30 years.

The other new factor is the increase in online shopping and the resultant increase in parcel deliveries, Prior to being transitioned to a CMB parcel deliveries either meant the parcel was left on our front step as an invitation to theft or we had to go to a postal outlet the next day to pick it up. Now small and medium size parcels are left in a locked CMB compartment and we only have to make a trip to pick up very large parcels. And all mail is now in a locked compartment rather than an unlocked mailbox on our house like the vast majority of people in our neighbourhood.

However Canada Post could certainly have been more forthcoming and transparent in how they went about this. I recall the announcement a few years previous that all mail carriers would be using vehicles for their deliveries. That did not make sense unless they knew what was coming. They obviously did but did not want to tell anyone their plans. That is when they should have started letting the public and their workers know the direction they were moving.

Jobs are important but inefficiency is not a sustainable way of maintaining jobs in the long term. However, rather than the wishy-washy Canada Post response of we don't expect any individuals to lose their jobs they should have provided a job guarantee for all existing letter carriers. Attrition, retirement and increased parcel deliveries should easily allow that.

They should also make a firm commitment that all new parcel delivery services will be provided by unionized Canada Post employees under the terms of their collective agreements.

Our New Community Mailbox Seen From End of Our Driveway

But there is something worth fighting over, and I wish there was a bigger battle over this with more public support, and that is the privatization of retail postal services and the transfer of the responsibility for our mail from decently paid full time unionized employees hired and vetted by Canada Post to part time minimum wage retail clerks. That is a battle I can get behind.

What Are Cyclists Lives Worth

While I cannot answer that question I can tell you what our society and its governments have decided cyclists lives are not worth.

Cyclists lives are not worth the cost of installing truck side guards on all large trucks.

Cyclists lives are not worth the cost of developing and installing better mirror or camera monitoring systems for large trucks and all motor vehicles.

Cyclists lives are not worth the cost of designing and building roads that do not place cyclists in the path of other vehicles such as big trucks and then directs those vehicles into the cyclists.

Cyclists lives are not worth the cost of infrastructure that separates cyclists from motor vehicle traffic where appropriate such as on the most dangerous routes.

Cyclists lives are not worth the political will to require drivers, especially truck drivers, to have a legal responsibility to be able to see where their vehicle is going (and who they may be driving into and running over) before they go there.

And most importantly cyclists lives are not worth the elimination of the get out of jail free card that drivers that kill cyclists get for simply saying they didn't see the cyclist.

So what are are cyclists lives worth.

Note: this post does not refer to any specific incident.

Much Ado About Religious Accommodation

Much is being made of a decision by Canada Border Services Agency (CBSA) managers at Toronto's Pearson airport to allow a small group of Hindu priests to avoid screening by female border guards to comply with their religious beliefs.

Apparently some female CBSA officers feel that they were discriminated against by this decision. I could understand an outrage if female officers were only allowed to deal with female visitors but this was a small exemption made for a special case. Why all the fuss about this when so many more significant examples of religious discrimination are entrenched in our laws and practices in the name of freedom of religion.

For example an employer being allowed to designate higher profile positions for males only and more subservient positions for women only. This is a clear violation of all Canadian employment legislation and the Canadian Charter of Rights and Freedoms but still allowed in the name of freedom of religion.

What about persons delegated by the state the right to perform legal marriage ceremonies being allowed to discriminate in terms of who they will marry on the basis of their personal religious beliefs.

And much more serious, medical practitioners, such as doctors and pharmacists, being allowed to refuse to provide medical treatment or services on the basis of their personal religious beliefs.

Perhaps one of the most outrageous examples of discriminatory religious accommodation, a clear violation of the Canadian Charter of Rights and Freedoms, but constitutionally allowed, is the public funding of religious-based schools for one religious group only (and not even the largest group at that) - a huge government subsidy to one religious group that all political parties are afraid to deal with because of the risk of losing that groups votes.

If we are to be outraged by inappropriate religious accommodation let us be outraged by matters of substance, not by attempts to accommodate a small groups religious preference that has little impact on others' rights.

Postscript

This post sees the return of the Fifth Column after an interregnum, not caused by a lack of ideas but simply a lack of motivation to make the effort to write them down. Hopefully my posts will be more regular from now on.

Why Does Canada Participate in the Olympics Anyway

I took this screenshot (CBC website) of the standings yesterday showing Germany in first place with 8 medals, Canada second with 10 medals and Norway in third place with 12 medals.

Yes, that's right, because only being the very best in the world (well best at that particular place at that particular time) counts, the rest are all losers, so it seems.

Why do we rate the Olympics that way. The way we rate Olympic success should relate to what we want to accomplish, and the way we rate Olympics can have far reaching effects on how we fund sports and recreation in this country. We have already seen, at least in the past, funding shifted from less popular sports to sports that we have a better chance of winning Olympic medals in.

But what if we measured Olympic success by a points system that included all top ten finishes (tenth best in the world is pretty damn good by most peoples standards) with 10 points for first and one point for tenth.

We would get a much better picture of the depth and breadth of our elite athletes than just counting those in the top three. It would even give us a better measure of how we are progressing towards more medals in the future. And we could start doing it now retroactively using the records of past Olympics.

But is that even the point. Is it really justified to spend all this money on a “pissing contest” to prove we (well actually our elite athletes) are better than the rest of the world. What public policy goal does that serve.

We can only justify spending all this money on the Olympics if it serves some public benefit beyond giving Canadian another excuse to spend more time watching TV (while waving the flag) for two weeks every two years.

We can only justify spending this money if it benefits Canadians beyond the elite athletes that participate. We have to be able to show that the funding benefits a broad range of Canadians by funding sports and recreation for more than just elite athletes and by actually encouraging more Canadians to get involved in sports and recreation. That way we will see results in fitter and healthier Canadians with more balanced lifestyles and even reduced health care costs.

We won't know that if we measure the wrong things. Ultimately what we want to be able to measure is whether Olympic programs increase the participation of Canadians in sport and recreation ultimately leading to more balanced lifestyles and improving their fitness and health.

Knowing that we had the greatest percentage of citizens participating in sports and recreational activities would make me a lot more prouder than knowing that a small group of elite Canadian athletes were the best in the world. Now that is a goal to strive for.

He Was Supposed to Live Forever - And He Will

You can read more about Pete Seeger on the Pete Seeger Appreciation Page website.