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.

Grace in America

As I watched Obama's extraordinary speech yesterday, I was struck with a sense of sadness. Sadness at the senseless violence that once again was the form of expression chosen by an alienated soul, yes, but also a larger sadness. A sadness for what could have been. Obama was elected on a platform of hope and change. He embraced big ideas, and sought positive change for all. He cares about breaking cycles of poverty, and about creating a better life for everyone.

Yet all that hope, and all that change, were blocked at every turn by entrenched interests in Congress, fueled by money and engineered by lobbyists. A hatred of the President, racism barely below the surface, fed a childish tantrum that reflexively opposed everything the President suggested, everything he stood for.

Everyone is saying what a great week this has been for the President. But it's only a great week in the context of what has come before. Yes, the Affordable Care Act survived yet another court challenge. But the very fact that this watered down version of universal health care is the subject of so much opposition is troubling. Saving it is a small victory - introducing truly universal, single payer healthcare would have been worth celebrating. But in today's America, small victories are all that's on offer. Yes, same sex marriage is now legal across the country, but it is far from universally accepted. The vitriol in the Court's dissenting opinions, and from many of the Republican leaders, is baffling. This is an issue that will have no effect on their lives, yet could have profound, positive effects on the lives of others. Their strident opposition to something that costs them nothing can be born of only judgmental hate.

The President's speech was heartfelt. To me, there was a tone of desperation, of resignation, of exhaustion. It was the speech of a man who, free of the burden of re-election aspirations, could speak honestly. A man who has come to realize that despite all his efforts, most of what he wanted to achieve would be left undone. Like many eulogies given following a senseless death, Obama was searching for meaning, for a shred of goodness that might be gleaned from the pain. It was clear, though, that this searching transcended the Pastor's death. His earlier insistence that things had improved was no doubt true. That he felt he had to say it said so much more.

When the President spoke of grace, he intended to celebrate the extraordinary grace shown by the people of Charleston in dealing with the targeted attack on their community. But in doing so, he, perhaps inadvertently, highlighted the absence of grace in so much of modern day America. Few would use "grace" to describe the daily machinations in Washington. Few would use "grace" to describe the goals of the NRA, the defenders of the Confederate flag, the angry selfishness of the Tea Party. Grace, like much of Obama's presidency, represents what can be, what should be, but what still seems out of reach.

When the history of this era is written, will it be seen as a presidency ahead of its time, yet the start of a transformation towards an America that truly represents its ideals of "life, liberty and justice for all"? Or will it be seen as a last grasp at decency, before the moral and economic decay of a once great society accelerated so quickly it became irretrievable?

Sadly, for me, yesterday seemed to be a funeral not only for Reverend Pinckney, but for the hope and the promise Obama once symbolized.

An Open Letter to My Conservative MP

I continue to receive fundraising calls & emails from the Conservative Party. I wanted to write to you to make it clear why I will not donate to the party.

Over the past several years, the policies of the Conservative Party have become increasingly harsh. There seems to be no compassion left in the party. There's a willingness to simply toss aside, or worse condemn, people who live in poverty, or people who have made mistakes. A "with us or against us" mentality has taken hold, with no room for compromise or forgiveness, and no interest in understanding the lives of those who do not fit into the mould of what the party appears to consider "real Canadians".

Instead of promoting policies that could benefit all segments of society, this government has promoted a culture of fear. Unprecedented surveillance of Canadians is now routine, and through Bills C-24 and C-51, this government has extended even more extraordinary powers to law enforcement & intelligence agencies, to be exercised largely in secret and without adequate oversight. This is in response to an exaggerated threat of "terrorism" (a word that seems to have a very flexible, result-driven definition). These laws, in my view, cannot survive a Charter challenge. The government has been unwilling to even listen to the reasonable concerns of the Canadian Bar Association, the Canadian Civil Liberties Association, several Privacy Commissioners, as well as many other respected organizations and individuals. The Commons Committee hearings were a sham, and showed contempt for anyone who did not fully support the Bills.

I am old enough to remember the USSR, and the stories of people being spied on by the government, being arrested without charge and detained without recourse. We in the west were appalled at their tactics, and felt quite smug about our freedoms. It is deeply disturbing to me that our government no longer views such surveillance and detention as intrusive and excessive, and seems to be following in the Soviet footsteps.

This is not my Canada. It is not the Canada I grew up in, and it is not the Canada I want to live in. It is not the Canada I want to hand over to my children.

Instead of donating to the Conservative Party, I will be offering my money, my support, and my help to organizations who are fighting to reverse these trends, and to restore the compassionate Canada I believe the majority of Canadians want and deserve.

Yours truly,

David Harvey

Burlington, Ontario

While Patients Needlessly Die, Ontario Won't Account For $132 Million Earmarked For Hepatitis C Treatment

People in Ontario are dying from Hepatitis C because they can't afford the drugs that can cure the disease. The provincial government won't cover the cost, and has not accounted for $132 million it received from the Federal Government earmarked for Hepatitis C treatment.

On November 4, 2014, Brenda Peever from Ottawa died from complications of Hepatitis C contracted from a blood transfusion she received in 1979. Mrs. Peever was eligible for a new drug that has a 90% cure rate, but she could not afford the $55,000 cost. The province would not fund the treatment. Her story can be found here:

http://www.ctvnews.ca/health/ottawa-family-blames-red-tape-for-death-of-hep-c-patient-1.2096531

Now word that a man in Windsor is facing the same issue:

http://blogs.windsorstar.com/news/drug-cure-for-hep-c-comes-with-95000-price-for-windsor-man

This should not be happening. In 2002, the Ontario government signed an agreement with the Federal government which transferred to Ontario $132 million to provide health care to people who were infected with hepatitis C through tainted blood received before 1986. The funds were provided over 10 years. The final payment of approximately $21 million was scheduled for this fiscal year (2014/15). 

The Agreement states:

"WHEREAS there are health care services for Hepatitis C that are not fully insured by publicly financed health care systems in Canada;"

"The parties agree that their shared policy objective is to ensure that persons infected with Hepatitis C through the blood system prior to January 1, 1986 and after July 1, 1990 have reasonable access to therapeutic health care services indicated for the treatment/cure of Hepatitis C."

"The parties agree that the federal transfers will be used for health care services indicated for the treatment of Hepatitis C infection, and medical conditions directly related to it, such as current and emerging antiviral drug therapies, other relevant drug therapies, immunization and nursing care."

The agreement also required the Ontario government to issue reports to the public every 5 years on how the money was being spent. The government issued a report in 2007. Although a report was due under the agreement in 2012, it does not appear that any such report was issued. 

The 2007 report, which also attaches a copy of the agreement, can be found at:

http://www.health.gov.on.ca/en/common/ministry/publications/reports/hepc_agreement/hepc_agreement_20070207.pdf

It is unacceptable that a person in this province died because there was no funding for a drug that could have cured her, when the province has received millions of dollars from the federal government specifically earmarked for such treatments. The Ontario government has not accounted for those funds, despite a written agreement requiring such reports.

I raised the issue of the transfers, and the missing report, directly with then Health Minister Matthews in February 2014, but never received any followup.

Where is the money? Why is Ontario 3 years late in accounting for how it has been spent? Why won't the government spend that money on drugs that can cure the disease?

I'm Convinced the Ontario Liberals Broke Ontario's Campaign Finance Laws

I'm convinced the Ontario Liberals broke Ontario's campaign finance laws, but Elections Ontario won't do anything about it.

You're limited by law as to how much you can give an Ontario political party in a year. However, you can give as much as you want to that party's leadership candidates. When the Liberals held their leadership campaign in 2013, one of the party's rules was that all candidates had to give 25% of all funds they raised to the party. The annual donation limit for contributions to a party at the time was $7500. But if you gave $7500 to the party, plus $10,000 to a candidate, 25% of your donation to the candidate went to the party. So your donation to the party was $7500 + (25% of $10,000=$2500) = $10,000. You clearly donated more than the $7500 limit to the party that year.

In law, there's only 2 ways to look at this: either the candidate was acting as a fundraising agent for the party, in which case the individual donated more than the legal limit, or the money became the property of the candidate upon donation, and therefore the candidate donated more than the legal limit to the party. Either way, it is a violation of the Ontario Election Finance Act to accept a donation from anyone that is in excess of the legal limits.

I wrote to Elections Ontario about this issue. At first, they wrote back saying they didn't understand the concern I was raising, so I wrote back and explained it again. They then wrote back and said there was nothing in the Elections Act that prohibited a leadership candidate from transferring funds to the party, so they didn't think there was any violation of the Act. I thought they were still missing the point, so in May, 2013 I wrote the following to try to make it crystal clear. I never heard back from them.

Section 28 of the Election Finances Act reads:

"28. No political party, constituency association or candidate registered under this Act and no person on its or his or her behalf shall knowingly accept any contributions in excess of the limits imposed by this Act."

Given the 25% transfer rule applied by the Ontario Liberal Party to its leadership contestants, in my view the leadership contestants were accepting contributions on behalf of the Ontario Liberal Party.Accordingly, the leadership contestants would be in violation of section 28 if they accepted any contribution which would result in a transfer to the party of an amount exceeding the contributor's annual limit as set out in the act. For example, if a leadership contestant accepts a contribution of $40,000, he or she would know that $10,000 was collected on behalf of the party, and that that amount is in excess of the limits set out in section 18. Accordingly, accepting the donation of $40,000 would be a violation of section 28.

Further, your position that transfers from leadership contestants to parties is not prohibited by the Act depends on determining that such transfers are not contributions. However, it is section 27 that sets out what transfers are not contributions. That section does not include transfers from leadership contestants to parties. It reads:

"27. A registered party and any of its constituency associations or official candidates registered under this Act may transfer or accept funds, goods and services to or from each other and all such funds,goods, other than goods held in inventory for any candidate for use during a campaign period, and services accepted by such political party, constituency association or candidate shall be considered notto be contributions or campaign expenses for the purposes of this Act but shall be recorded as to source and any funds accepted shall be deposited in the appropriate depository on record with the Chief Electoral Officer."

Since section 27 does not list leadership candidates, it must be assumed that transfers from leadership candidates to parties are contributions, and therefore are subject to the limits in section 18,and prohibition in section 28.

If your position were correct, that leadership candidates were permitted to transfer funds because there is nothing in the act that prohibits it, section 27 of the act would not be necessary.
The only provisions in the Act which directly authorizes monies to be paid over from leadership candidates to parties is subsection 42(5).This applies only to surplus following a leadership contest. Where 25%of monies collected are specifically for the purpose of transfer to the party, they cannot be considered surplus.

Please directly address these 2 issues, which in summary are:

1. Were the leadership contestants collecting money on behalf of the party, due to the application of the 25% rule?

2. What provisions of the Act state that transfers of funds from leadership contestants to parties are not contributions, and therefore exempt from the limits in section 18?