The Churchill Falls curse

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This is basically all Newfoundland and Labrador got out of the deal.

Today the Supreme Court of Canada made it clear: Newfoundland and Labrador is stuck with one of the one-sided business deals in history for the foreseeable future.

The Supreme Court of Canada will not force Hydro-Québec to renegotiate a 65-year contract to buy low-cost electricity from the Churchill Falls power station in Labrador.

The decision means Quebec’s power utility will continue to reap enormous profits from the Churchill Falls deal. But it’s a blow for Newfoundland and Labrador, which has seen a small fraction of the benefits from the project.

The price of electricity dramatically increased after the agreement was signed in 1969 but Hydro-Québec has refused to alter the terms of the contract to account for the changed market.

The Churchill Falls Corporation took the utility to court in 2010 to force a renegotiation, arguing that Quebec’s Civil Code meant that both parties had to treat each other in “good faith.”

In the decision released Friday, the Supreme Court upheld two lower court decisions in favor of Hydro-Québec, with seven justices in agreement and only one, Justice Malcolm Rowe, a Newfoundland native, dissenting.

The court said Hydro-Québec had no legal obligation to renegotiate the deal.

“The duty of good faith does not negate a party’s right to rely on the words of the contract unless insistence on the right constitutes unreasonable conduct in the circumstances.”

The court rejected Churchill Falls Corporation’s claim that the original contract was akin to a joint venture, with both sides sharing the risks and rewards. And the court found there was nothing implicit in the contract to suggest it would be renegotiated if the market changed.

The deal finally expires in 2041.  With Newfoundland’s luck, they’ll probably have perfected cold fusion or something by then.

Barrie McKenna explains what the Churchill Falls fiasco means to Newfoundland and Labrador, and how the provincial government tried to avoid repeating that big mistake by making another big mistake:

The obvious lesson in the latest failed lawsuit is that Newfoundlanders should move on. This should be the end of the story.

Unfortunately, the Supreme Court ruling hasn’t erased deep financial and psychological scars. Newfoundland unknowingly blundered once by agreeing to the 1969 contract. And it doubled down a generation later by blindly forging ahead on its own with the high-risk Muskrat Falls megaproject on the Lower Churchill River, which is slated to begin producing hydroelectric power in 2020.

For former Newfoundland premier Danny Williams, developing Muskrat Falls was never just about generating hydro power. It was about sticking it to Quebec, and righting the perceived wrongs of the Churchill Falls contract. Never again, he vowed, would Newfoundlanders let themselves be exploited by Quebec. So instead of selling the power from Muskrat Falls to the most obvious customer – Quebec – the province opted to go it alone, with all the inherent risks. It will repatriate the power to Newfoundland and finance a circuitous underwater transmission line to Nova Scotia.

The unfortunate consequence of this energy hubris is that instead of being cheated by its neighbour, Newfoundlanders are fleecing themselves. Delays and cost overruns on the $12.7-billion megaproject will cause residential hydro rates to more than double across Newfoundland by 2022 and could eventually bankrupt the tiny province. A provincial inquiry, charged with uncovering what went wrong and whom to blame, is slated to release its final report late next year.

[…]

As the Supreme Court pointed out in its decision, the contract was specifically structured “to have Hydro-Québec assume a risk that CFLCo did not want to assume.” The low fixed price and the long term were Hydro-Québec’s compensation for taking on that risk, the court concluded.

The court did point out that the province stands to get back full rights to Churchill Falls and its cheap power in 2041, reaping the windfall gains in the decades beyond.

That won’t help Newfoundland in the short-term. The province is caught in an economic, fiscal and demographic trap. The federal Parliamentary Budget Officer has warned that the small and slow-growing province must either slash spending or dramatically raise taxes to avoid a debt trap, and bankruptcy.

What next for TWU law school?

Considering how Canadian courts have become more protective of gay rights in recent years, I’m really not surprised by this decision:

Societies governing the legal profession have the right to deny accreditation to a proposed law school at a Christian university in British Columbia, the Supreme Court of Canada has ruled.

In a pair of keenly anticipated decisions Friday, the high court said law societies in Ontario and British Columbia were entitled to ensure equal access to the bar, support diversity and prevent harm to lesbian, gay, bisexual, transgender and queer students.

The cases pitted two significant societal values — freedom of religion and promotion of equality — against one another.

Trinity Western University, a private post-secondary institution in Langley, B.C., was founded on evangelical Christian principles and requires students to adhere to a covenant allowing sexual intimacy only between a married man and woman.

[…]

In each case, the Supreme Court ruled 7-2 in favour of the respective law society.

A majority found that the decisions to deny accreditation were reasonable because they appropriately balanced the interference to freedom of religion with the public-interest objectives of the law societies.

In the decision concerning Ontario, five Supreme Court justices said the province’s law society interfered only with the university’s ability to operate a law school governed by the mandatory covenant.

“This limitation is of minor significance because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and attending a Christian law school is preferred, not necessary, for prospective TWU law students.”

The ruling doesn’t say law societies must deny accreditation to TWU, so for now its graduates could still practice in the six provinces where law societies have approved it.  Another option could be for the school to amend its covenant to say students pledge to abstain from premarital sex, full stop, without bringing a “man and woman” into it.

Considering the implications for Trinity Westerns’ other programs, including education and nursing, the school will likely have to concede defeat and make some changes, or shut itself down entirely.  I think a Christian institution could provide a useful counterweight to Canada’s other, decidedly left-leaning law schools, so I hope they do what they can to keep operating and provide an alternative – which anyone can attend.

When good rulings happen to bad people

The Alberta couple who let their going son die a horrible death from meningitis have had their convictions overturned by the Supreme Court of Canada:

The Supreme Court of Canada overturned the 2016 conviction on Tuesday after about one hour of arguments from the Crown and counsel for David Stephan and his wife, Collet, found guilty of failing to provide the necessaries of life to 19-month-old Ezekiel.

The Stephans’ defence told Canada’s highest court that contrary evidence from medical experts led the trial judge to issue a misleading charge and did not “give the jury the tools that they needed to decide this case properly.”

She claimed the testimony of an emergency room nurse — who examined Ezekiel at the family home the day before his death — was not given weight and fully explained by the judge when charging the jury.

But the Crown says the same nurse testified at trial Ezekiel could be suffering from “something internal.” The Crown said the comment should have been a “red alert” for the parents.

He was taken to hospital in Cardston but later died after being transported to the Alberta Children’s Hospital in Calgary.

“The jury needed to understand the fact that not just the decision was wrong, but that it was wrong such that it was criminal,” the defence said.

Even if you don’t have young children, it’s almost impossible not to feel white-hot rage at a couple who not only decided to treat that poor boy with garlic and horseradish, but have since tried to cash in on the alternative-health-expo circuit.

But that doesn’t make the Supreme Court’s decision incorrect. If we are going to hold someone criminally responsible for causing the death of their own child, we have to be sure the jury properly understood the complex evidence and the legal principles at stake.

Besides, this doesn’t get the Stephans off the hook completely. Another trial is likely – and, in theory, could result in tougher sentences than what they got the first time around.

The Carter ruling is correct, though I don’t agree with it

The Supreme Court of Canada struck down the Criminal Code provisions making assisted suicide illegal:

In a charter precedent that will go down in the history books as Carter vs. Canada, the court unanimously struck down the ban on providing a doctor-assisted death to mentally competent but suffering and “irremediable” patients.

The emphatic, unanimous ruling prompted tears of joy and frustration on both sides of the debate, reverberated through provincial health ministries and doctor’s offices across Canada, and left skittish federal parliamentarians groping for time to digest the implications.

“The prohibition on physician-assisted dying infringes on the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice,” the nine justices flatly asserted.

The judgment — left unsigned to reflect the unanimous institutional weight of the court — gives Parliament a year to draft new legislation that recognizes the right of clearly consenting adults who are enduring intolerable physical or mental suffering to seek medical help in ending their lives.

It does not limit physician-assisted death to those suffering a terminal illness.

And to put an exclamation mark on the ruling, the court awarded special costs against the government of Canada for the entire five-year course of the litigation, less 10 per cent to be paid by the government of British Columbia.

The court suspended its judgment for 12 months, during which the current law continues to apply, placing enormous pressure on Parliament to act in what is an election year.

(An aside: remember when Stephen Harphitler was going to pack the Supreme Court with Conservative loyalists who would rubber-stamp everything he did?  Didn’t quite work out that way, did it?)

I’m torn on the issue of assisted suicide.  I fundamentally believe a person should have the right to do what he wants with his body, and if you’re suffering from an incurable, terminal medical condition, I can understand why you’d want to end the misery on your own terms.

I also firmly believe that this starts the proverbial slippery slope toward extending this “right” to people who are not competent to make the decision to end their lives, young children, and that we will ultimately see people given the right to make end-of-life decisions for disabled people in their care.    (Indeed, supporters of Robert Latimer have been arguing for this ever since he took the life of his severely disabled daughter in 1993.)

Andrew Coyne argues that the Court did not seriously consider the implications of its ruling:

…on what grounds could any limit be placed on this right? Once we have embraced the idea of suicide, not as a tragedy we should seek to prevent, but a right we are obliged to uphold; once the taking of life has been converted from a crime into a service — “physician-assisted death” — to be performed at public expense; once we have crossed these sorts of philosophical and legal divides, how is it to be imagined that we could stop there?

The Court airily dismisses concerns that euthanasia will be expanded or abused, as it has been in those few jurisdictions where it has been legalized, as “anecdotal.” Very well. Perhaps the Court is right, that the “medico-legal culture” of Belgium, where assisted suicide is now provided to children and prisoners on demand, is different than Canada’s.

But it is not in the administration of the law that I fear we will see the “slippery slope” at work so much as it is in its interpretation. Perhaps the Court’s confidence that “safeguards” can be devised that will prevent the spread of euthanasia beyond the competently adult and the clearly consenting is well placed. But there can be no safeguard against the Court’s own future decisions.

Some day, someone is going to bring a case before the Court arguing that children with an incurable disease and in “intolerable” pain should also have the right to assisted suicide, perhaps with their parents’ consent. Is the Court really going to condemn them to endure years of excruciating pain until they are of age? Likewise, is it really prepared to leave the mentally incompetent to suffer unbearably, when with the signature of a legal guardian they could be released? Or if personal autonomy is all, why should a “grievous and irremediable medical condition” be required? Isn’t it enough that you want to be dead, but need someone to help?

So, I’m worried about what the Carter decision means.  And yet, paradoxically, I think the Court dealt with the slippery slope argument appropriately.

In deciding whether a law is unconstitutional, a Canadian court must then turn its attention to whether the infringement of a Charter right can be justified “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” as stated in section 1 of the Charter of Rights and Freedoms.

In layman’s terms, it must be established that the offending law has an important, pressing societal objective, and that it carries out this objective by infringing upon the Charter rights as minimally as possible.

The Court notes, correctly, that “slippery slope” arguments are speculative by nature:

[118]                      Canada also argues that the permissive regulatory regime accepted by the trial judge “accepts too much risk”, and that its effectiveness is “speculative” (R.F., at para. 154).  In effect, Canada argues that a blanket prohibition should be upheld unless the appellants can demonstrate that an alternative approach eliminates all risk.  This effectively reverses the onus under s. 1 , requiring the claimant whose rights are infringed to prove less invasive ways of achieving the prohibition’s object.  The burden of establishing minimal impairment is on the government.

[119]                      The trial judge found that Canada had not discharged this burden.  The evidence, she concluded, did not support the contention that a blanket prohibition was necessary in order to substantially meet the government’s objectives.  We agree.  A theoretical or speculative fear cannot justify an absolute prohibition.  As Deschamps J. stated in Chaoulli, at para. 68, the claimant “d[oes] not have the burden of disproving every fear or every threat”, nor can the government meet its burden simply by asserting an adverse impact on the public.  Justification under s. 1  is a process of demonstration, not intuition or automatic deference to the government’s assertion of risk (RJR-MacDonald, at para. 128).

[120]                      Finally, it is argued that without an absolute prohibition on assisted dying, Canada will descend the slippery slope into euthanasia and condoned murder.  Anecdotal examples of controversial cases abroad were cited in support of this argument, only to be countered by anecdotal examples of systems that work well.  The resolution of the issue before us falls to be resolved not by competing anecdotes, but by the evidence.  The trial judge, after an exhaustive review of the evidence, rejected the argument that adoption of a regulatory regime would initiate a descent down a slippery slope into homicide.  We should not lightly assume that the regulatory regime will function defectively, nor should we assume that other criminal sanctions against the taking of lives will prove impotent against abuse.

In practice, I do not believe assisted suicide will be limited to those who care competent to request it.  But I concede that this is speculative, and that our courts may very well rule that this is something the disabled and the young should be protected from, not a right that should be extended to them whether we really know they want to exercise it.

“Slippery slope” arguments are considered logical fallacies, and court decisions should not be based on logical fallacies.  I think my fears about assisted suicide may be borne out, but they aren’t inevitable.  And if they aren’t inevitable, the Charter right is not minimally infringed upon.

I know this seems pretty confusing, but it’s a morally complex issue (dominated, like most morally complex social issues, by the loudest and most extreme voices on each side).  To summarize, by head agrees with the Carter ruling, though my heart is worried about it.

The unluckiest man in Quebec

I feel awful for this poor guy, but if the convenience store clerk was telling the truth – that he warned him that his second ticket was for the following week’s draw – I think the courts have ruled correctly on this matter:

The Supreme Court of Canada has dismissed a Quebec man’s claim to a $27 million jackpot because his lottery ticket was printed seven seconds after the cut-off time.

On Thursday, Canada’s top court said it would not hear Joel Ifergan’s lottery case. The SCC dismissed his request for an appeal with costs.

Ifergan purchased two lottery tickets for the May 23, 2008 Super 7 draw at 8:59 p.m., one minute ahead of the weekly draw deadline. His first ticket printed with the May 23 draw date on it, but his second one came out seven seconds after 9:00, with the May 30 draw date printed at the top.

That second ticket had all the winning numbers for the May 23 jackpot, but Loto-Quebec rejected the claim because the ticket said May 30.

Ifergan says he’s entitled to half of the $27 million awarded in the May 23 draw because his tickets were purchased ahead of the deadline, regardless of whether they were printed after it. He blames Loto-Quebec’s 10-second processing delay for denying him his share of the jackpot, which was awarded to another winner.

[…]

Convenience store owner Mehernosh Iranpur says he sold Ifergan the tickets, and Ifergan knew the second ticket was for the next draw.

“I asked him, ‘It’s for next week. Do you want it or not?’” Iranpur said. “He says, ‘No, I’ll keep it.’”

Then again, for many lottery winners, the jackpot turns out to be more of a curse than a blessing.   Maybe Mr. Ifergan is luckier than he thinks.

The story of a little prick

The country’s highest court has ruled that if your partner consents to sexual intercourse with protection, and then you tamper with the condom in some way, you are guilty of sexual assault:

The Supreme Court of Canada has dismissed an appeal by a Nova Scotia man who was convicted of sexual assault for poking holes in his girlfriend’s condoms.

The case involved Craig Jaret Hutchinson, who was sentenced to 18 months in jail in December 2011, after he admitted damaging his former girlfriend’s condoms in an attempt to impregnate her so that she would not end their relationship.

While the Supreme Court’s decision to dismiss the appeal was unanimous, the seven justices were divided into two camps in their reasons for the decision.

The majority ruled that Hutchinson’s decision to sabotage the condom exposed his girlfriend to an increased risk of pregnancy and constituted fraud.

“We conclude that there was no consent in this case by reason of fraud,” the judges wrote in their decision.

The three other judges wrote that the question in the case was not whether the girlfriend’s consent was “vitiated,” or invalidated, by fraud, but whether the girlfriend had consented to “how” the sex had taken place.

[…]

The court was also clear that merely deceiving a sexual a partner — for example, by lying about one’s marital status – would not be enough to warrant a sex assault conviction.

The justices writing for majority noted that their decision recognizes that not every deception “that induces consent” should be criminalized.

“To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation” in this and similar cases, they wrote.

Full decision here.  The ruling makes sense to me – in this case, while the woman consented to sex, she clearly had not consented to it being carried out in such a potentially harmful manner.  (She became pregnant, chose to terminate the pregnancy and then wound up with a uterine infection.)

The question is, if this were the other way around – if the female partner somehow tampered with the condom, in the hopes of surreptitiously getting pregnant – is there any reason why she wouldn’t be guilty of sexual assault?  What if she said she was unable to have children, or lied about being on birth control?  What if the male partner lied about being sterile?  It will be interesting to see how this case is applied.

Another reason not to drink and drive

It’s dangerous, you could get jail time, and it could cost you your vehicle, too:

The Supreme Court of Canada has overturned a lower court ruling and allowed the Crown to seize a vehicle belonging to a repeat drunk driver.

In a 7-0 decision today, the justices ruled that the judge in the Quebec case was wrong to deny the forfeiture order.

The case involved Alphide Manning, who was arrested near Baie-Comeau in April 2010. He subsequently pleaded guilty to two counts of impaired driving and was sentenced to 12 months on one charge and five months on the other.

The Crown also moved to seize the truck Manning was driving when he was arrested.

Manning argued that the loss of the $1,000 vehicle, his sole asset, would be overly harsh.

[…]

The justices said Manning’s record had to be considered.

“The trial judge erroneously emphasized Mr. Manning’s personal circumstances and failed to give appropriate weight … to Mr. Manning’s criminal record, including five convictions on alcohol-related driving offences and three for breaches of probation orders or undertakings.”

The ruling comes as the Quebec government is looking to crack down on drunk driving by making vehicle seizures routine.