Should Hamilton's Integrity Commissioner Also Provide Legal Advice to Council?

The latest in the never-ending controversy surrounding Hamilton's LRT project centres around a legal opinion sought & received by Council from lawyer George Rust-D'Eye. Council and/or the City apparently asked Mr. Rust-D'Eye for an opinion regarding a possible motion to hold a referendum on the LRT project. Council presumably wanted to know if such a motion were permissible, and if so what legal effect such a referendum might have. Exactly what Council asked, and what opinion was given, is unknown, as Council has kept this information confidential pursuant to solicitor client privilege. (This suggests that Council and/or the City is the client, otherwise they could not assert the privilege.)

Mr. Rust-D'Eye is a recognized expert on municipal law in Ontario. He maintains a successful private practice in Toronto. He is also Hamilton's Integrity Commissioner and Lobbyist Registrar.

As pointed out by Howard Elliott in an editorial in today's Hamilton Spectator, Mr. Rust-D'Eye was not acting in his role as Integrity Commissioner when he provided this opinion. Rather, he was hired and paid by Hamilton Council as a lawyer to research a point of law and provide an opinion. He's a private lawyer, and this was a business transaction. Mr. Rust-D'Eye reaps a personal financial benefit from being hired to do legal work for Council, and he presumably hopes that he will be hired for more such work in the future. Therein lies the difficulty.

Under Hamilton's Integrity Commissioner By-Law, the Integrity Commissioner has the power to conduct an inquiry into the actions of City Councillors, and determine whether or not there has been an infraction of the City's "Code of Conduct or other procedures, rules or policies governing the member’s ethical behaviour". The By-Law gives the Integrity Commissioner the power to decide whether a complaint is "frivolous and vexatious", and if he decides it is, the complainant's $100 fee will not be refunded. If the Integrity Commissioner finds that there has been a breach of the rules by a Councillor, he has the power to impose a penalty - a reprimand and/or a suspension of the Councillor's pay for up to 90 days.

In other municipalities, penalties are imposed by Council, upon the recommendation of the Integrity Commissioner (see, for example, subsection 160(5) of the City of Toronto Act). In Hamilton, however, the power to impose penalties has been delegated to the Integrity Commissioner (subsection 20(1) of the By-Law). This is an important distinction, as it places the Integrity Commissioner in a quasi-judicial role. The Integrity Commissioner has the power to investigate, compel evidence,  make decisions and impose penalties.

Given the quasi-judicial role of the Integrity Commissioner, it is, in my view, problematic that he accepts business from Council beyond his role as Integrity Commissioner. Having a separate business relationship with Council when he is also charged with impartially reviewing their conduct creates a possible conflict of interest or perception of bias.

By way of analogy: Say you had a dispute with your car dealership. You and the dealer agree to put your dispute before an independent third party to decide who is right. The dealer suggests that the dealership's lawyer act as the third party. Would you agree to that? Or would you fear that you might not be treated fairly given the lawyer's business relationship with the dealership?

Or imagine that a bar in a small town is frequently charged with serving alcohol to people underage. Because it is a small town, they always end up before the same judge. One day, the bar owners approach that judge and offer to pay her to do some legal work for them. Should the judge do it? Or should she decline, on the grounds that entering into a business arrangement with someone who is frequently in her court would undermine the perception of her impartiality?

Have Mr. Rust-D'Eye's dual roles as Integrity Commissioner & private lawyer for Council in fact affected the integrity of his work in either role? I don't know, and I do not have any evidence that it has. But the fact that the question can be raised, given the potential conflict of interest which arises, suggests to me that it would be better if the City did not have any outside business relationship with its Integrity Commissioner.

Hackerspace Autonomous Model Sailboat Racing

TL;DR Do you want to race autonomous model sailboats against other hackerspaces?

As you may have heard, think|haus has had a bumpy road lately. Membership has dropped, the space is underused and in need of general cleanup/fixup, etc. We were on the verge of closing, but have decided to give one last shot at revitalizing the space. One of the things people have suggested/requested was to have some group projects to help rebuild a sense of community. To that end, I'd like to seek feedback/expressions of interest from the various hackerspaces in Ontario for the following idea:

WHAT:

An autonomous model sailboat race. In September, think|haus would sponsor a race on Hamilton Harbour. Each hackerspace would enter a boat. If your space is extremely enthusiastic, maybe enter more than one. The rules would be simple: boats no more than 2m in length, must be powered by the wind only. 3 buoys would be placed in the Harbour setting out a triangular course. Teams would be provided the GPS co-ordinates of the 3 buoys. Boats must make it around the course without any remote control - telemetry & video links would be permitted, but no control links. Attacking other boats would not be permitted (though that may be an idea for another side competition - robot wars, boat edition).

think|haus would provide a chase boat to go out & retrieve any model sailboat that got into trouble. We'd also host a BBQ party afterwards.

WHY:

Well, I like sailing, and it's my idea, so there's that. But also, the project has roles for the electronics types, the software types, and the mechanical types who would have to all work together on a common fun project. It would likely involve laser cutting, 3D printing, woodworking, sewing, microcontroller programming, and maybe vacuum forming, fiberglass work, etc. so there would be lots of opportunity to get everyone involved regardless of skill level. It can be as simple or as complicated as you want - stick a dowel with sail made from a plastic bag  in a big hunk of foam, or meticulously model a rigid wing carbon fiber hydrofoiling catamaran - it depends on what your team wants to do.

The main reason why, though, is to have fun working on a project together over the summer, learn new things, and have a good day outdoors followed by food & beverage. Maybe this could be SoonCon 2016?

So: interested? Ideas? Suggestions? Please let me know what you think.

Dave Harvey

think|haus

PS. I've tried to hit most of the southern Ontario hackerspaces that I know of & have contact info for, but if there's anyone else or another list you can think of, please feel free to forward this info.

Federal Government Betrays Tainted Blood Victims

This is appalling.

In 1999, the Federal government provided compensation to people who were infected with hepatitis C through the blood system, but, despite vigorous opposition, initially restricted it to those infected between 1986 and 1990. After years of litigation & lobbying, during which time many people suffered & died, in 2007 compensation was finally extended to those infected before 1986 and after 1990 as well. Separate funds were set up for the two groups.

At the time the funds were set up, we were required to estimate the number of people in each group, and how sick they were, in order to determine the amount of money required for each of the funds. Those estimates turned out to be not quite accurate, and as a result the fund established for the 86-90 group has a surplus of about $240 million, and the fund for the pre-86/post-90 group ran out of money a few years ago, and would need about $60 million to pay out valid claims that could not be paid after the fund ran out.

On Monday, the Federal government is going to court to ask that the $240 million surplus in the 86-90 fund be paid back to the government. They refuse, however, to use any of that money to top up the empty pre-86/post-90 fund. People deserving compensation will go without, and the Federal government will pocket $240 million. Shameful, greedy & wrong

For more info, see the Globe and Mail story here.

Let's Put Scalpers Out Of Business

Ticketmaster managed to piss off everybody this morning with the pre-sale for The Tragically Hip tour. Tickets were on scalper sites before the sale even started, including StubHub.

I logged on right at 10am, and was told there were no tickets available. I decided to keep trying. After about 20 minutes & a dozen tries with "no tickets available", I was about to give up. I decided to try one more time, and I got centre floor, 9th row. Something is clearly wrong with the system. Why weren't these seats available the first 12 times I tried?

So it got me thinking: there's a breakdown in the market for tickets. From an economics standpoint, the existence of scalpers suggests that bands are underpricing their shows. If someone is willing to pay $500 for a $90 ticket, why shouldn't the band get that extra $410 instead of some scalper? The scalpers are making a profit but contributing nothing, and from all appearances are cheating the system to do so. 

So, here's my solution: instead of regular ticket sales, hold a type of auction. For example: divide the venue into 3 sections - good, better, best. There could be a minimum price for each section. Have a sign in page where you say how many tickets you want, and the maximum you'd be willing to pay for tickets in each section. The sign in page would be available for a week. At the end of the week, the system would review all requests, and allocate tickets according to the bids. If a band wanted to ensure that a certain number of tickets were available at a certain price to ensure people could afford to go, those could be set aside and allocated by lottery. The entire bid & allocation process could be open & transparent, so people could see how many tickets there are, what the bids were, and how tickets were allocated. This could be done in real time (which might lead to gaming the system) or could be available after allocation for accountability. 

This system would eliminate most of the issues with the current "mad dash" system, and ensure that more money goes to the artists instead of the scalpers. 

Thoughts?

Some thoughts about how we failed, and what we can learn, from the Ghomeshi trial

For me, the outcome of the Ghomeshi case was disappointing, but not unexpected. In my view, the justice system, in its broadest sense, failed. In analyzing what went wrong, we must look far beyond the courtroom. There were, to be sure, inconsistencies in the testimony of the witnesses. Some may have been errors, others likely deliberate shading of the truth. Details were omitted. In those circumstances, it is understandable that the judge found he could not rely on their evidence alone to find guilt beyond a reasonable doubt. Since there was no other evidence, an acquittal was appropriate.

There is a sad irony in this case: we've made some progress in sexual assault cases. It is no longer proper to question a complainant about what she was wearing, or about her sexual history. We've written into law protections for complainants against the former practice of digging into medical files, psychiatric records, and former relationships. These practices were based on so-called "rape myths": the prejudicial assumptions that a woman's character, sexual history, etc could tell us whether the alleged assault was likely to have occurred. Or, more bluntly, whether she is lying about being assaulted, or was asking for it, or is somehow to blame because of her manner of dress, choice of place or companions. In the Ghomeshi case, however, all of these myths became a part of the unspoken narrative. They could be introduced only because the witnesses had given inconsistent statements to the media, the police, and the court. So many things that would have been inadmissible became admissible, ostensibly for the limited purpose of attacking the witnesses' credibility. But once those rape myth bells have been rung, they can't be unrung. The evidence is in, and any conscious or unconscious bias a judge or jury might have is put into play. Thus the irony: evidence that would not have been admitted, because it's abusive and not probative, became admissible because the complainants did not disclose it, because they feared abuse and did not think it was probative.

I lay some of the blame at the feet of the Crown. To me, it appeared that the witnesses had not been properly prepared for the trial. They did not seem to know what to expect. They should have been told that every interaction they ever had with Ghomeshi could be relevant, that the defense would likely have every email ever sent, every photo, every letter. They should have been provided with those things, been asked to review them, to refresh their memories, so that they could think about the entire context before the high pressure situation of a cross-examination.

At the heart of the broader failure, though, lies this question: why did the witnesses not tell the whole truth? What prejudices do we have as a society that makes a person fear telling the whole truth about abuse within a relationship? Why did they feel that they couldn't tell some parts of the story? Partly to avoid embarrassment. Partly because they worried that those details would make it less likely that they'd be believed about the assaults. But it is unfair to say that those are failings of the women alone. They are failings in all of us. It is the preconceived notions of those of us who have never been in that situation that creates the fear of embarrassment, and the fear of not being believed. If we want justice to work in cases of sexual assault, we must work as a society towards creating an atmosphere where the victims will feel supported, not embarrassed. Where they'll be met with understanding, not derision, when they explain that even after the assault, they went back to their abuser, that they didn't immediately go to the police, or that they wrote friendly, even flirty emails or letters to their abuser after the assaults. Only when we are prepared to listen without judgment, will they be prepared to tell the truth, the whole truth, and nothing but the truth.

The Small World of the Ghomeshi Legal Saga

With the first Ghomeshi trial wrapping up today, I got to thinking what a small world the legal profession can be. Though I'm not involved in any way with the cases against Ghomeshi, at one time or another I've crossed paths with almost every lawyer involved.

I graduated from Osgoode Hall Law School in 1989. My graduating class included Marie Henein, Ghomeshi's criminal defence lawyer, and Janice Rubin, the lawyer hired by the CBC to investigate Ghomeshi's behaviour while at the CBC, and the CBC's response to it. As Marie, Janet and I were preparing for our final exams & looking forward to graduation, across campus Jean Ghomeshi (he went by Jean back then) was gearing up his campaign to become President of the York University student government, the CYFS. He won, and served as President the year after we graduated.

My graduating class

Marie & I both had much longer hair back then

Hired by the CBC to investigate the Ghomeshi sexual harassment & abuse allegations

In the late 1990's, I joined the litigation department at a large Toronto law firm. Most days I would go out to lunch with a number of my partners there, including Neil Rabinovitch. Long after Neil & I had gone off to separate firms, Neil represented Ghomeshi during his dealings with the CBC. Neil also launched Ghomeshi's short-lived $55 million lawsuit against the CBC. That lawsuit never went anywhere, and was dropped with Ghomeshi agreeing to pay $18,000 in legal costs to the CBC.

Around 2003, I joined a smaller litigation firm. We hired a bright young lawyer, Peter Henein (Marie's younger brother). Peter had gone to law school after a brief stint as a stand up comedian. Peter is now a partner at Cassels Brock in Toronto. Peter is sometimes assisted by an associate at the firm, Christopher Horkins, the son of Justice William Horkins, who is presiding over the Ghomeshi trial.

I've since retired from practice. But even sitting here at home, I can usually connect to the legal news in Canada with much less than 6 degrees of separation. Canada is the 2nd largest country in the world by land mass, but in certain professions, like law, it can really seem to be a small town.