Wednesday, March 25, 2015

My Guess: Progressive Tax Regime Coming to Alberta

The Premier had a televised address today, and there were some things he said, and some things he did not.  A few things were clear:

First, the public service can expect that the next contract negotiation is going to be brutal, as in start filling the strike coffers now, because you're going to need them.

Second, over the next 5 years he wants to move to spending only half of unpredictable energy revenues on operational expenses, spending the other half on debt repayment, emergency funds, and the heritage trust fund, with the heritage trust fund eventually getting all of the other half.

That's a step in the right direction, but I don't know how budgeting to spend 50% of X is any more predictable than budgeting to spend 100% of X.  It sounds like a promise to only make half as many mistakes in future, or make the same number of mistakes, but have them be half as big.

Third, he's introducing changes to the revenue side of things to increase and stabilize revenues.  At the very least, health care premiums are back, because it's a tax that people don't seem to mind.  Sales taxes are out of the question, but all that he committed to otherwise is that Alberta will maintain the lowest tax environment in the country.  There is a lot of room to go up from where we are and have that stay true.  He has previously said the business taxes are not going to increase.  He also said that they were going to ease the burden on working families.

So if he wants to increase revenues, stabilize revenues, and ease the burden on working families, what can he do that he has not said he won't do?

My guess is that Alberta is going to have more than one tax bracket again.  A progressive tax system where the basic exemption is increased.

So if he wants to reduce our dependence on energy revenues and move to income tax, how much income tax are we talking about?

Well, between 2004 and 2013, Alberta had an average take from energy revenues of about $10 billion.  Getting rid of half of that revenue is a self-imposed hole of $5 billion.

Public Interest Alberta has suggested that tax brackets of 10%, 13% and 15% would result in increased revenue of approximately $1 B.  If he fills only $1B of the gap with income tax, a $4B reduction in spending would be about a 9% reduction in expenditures.

Huh... a 9% reduction across the board... where have I heard that number before... Oh, yeah.

Friday, March 20, 2015

U of C Law School Takes Huge Leap Forward

The U of C Law School is making considerable changes to their curriculum.

Not everything in this announcement impresses me that much.  Performance Based Learning is, it seems to me, a change from marking people on exams to marking people on written assignments.  That is better, where the written assignments are designed to mimic the sort of writing assignments that lawyers will have in the real world, but a great deal of what lawyers do has nothing to do with writing.

Context Based Learning, in which the theoretical concepts are taught in the context of a hypothetical real world problem to which they apply, and in which the students research and teach one another aspects of the law applicable to that problem, would be a bigger change.  But it is also a change that requires a significant increase in the resources put toward teaching and facilitation, and those resources could only come at the expensee of resources dedicated to "research," or more accurately for a law school, scholarship.

But here's what the school is getting right.
Optional courses in Legal Practice will be offered. These will include courses such as Law and Technology, Entrepreneurship, Leadership, and Diversity and the Legal Profession.
This is excellent.  It's unfortunate there is not a course on practice management.  The diversity course will undoubtedly focus too much on the problems and not enough on the different styles of practice available that might be solutions.  But this is a major step toward turning out professionals, rather than turning out people who are qualified only to work as low-level associates.

Thursday, March 19, 2015

How Laurie Blakeman is Breaking the Law

No, not THAT kind of breaking the law.  The other kind, where you do something that the law doesn't know how to deal with, and so the law just stops  working.  Like dividing by zero on a calculator.  She "broke" it.

Here's the thing: in an effort to take a first step toward uniting the progressive vote in Alberta, Ms. Blakeman has announced that she will be running as the candidate for three parties in her riding: The Alberta Party, the Green Party, and her own Liberal Party.

Getting on the Ballot

The suggestion is that she will appear on the ballot under only one of these names.  But why not all three?

The short answer is this: the law wasn't built for this.  And it also wasn't built to prohibit it, so far as I can see.  It just never saw it coming.

There are lots of places in the electoral law in Alberta uses the singular were Ms. Blakeman would need the plural.  As in "the" registered party officially endorsing her.  There is no explicit requirement that a candidate represent only one party, though.  So the Chief Electoral Officer's general powers to vary the forms and procedures as circumstances require could be used to allow Ms. Blakeman to supply three endorsement forms from three different parties, and have all three listed next to her name on the ballot.

That certainly seems possible, and if the Chief Electoral Officer refused to do so, I could see that as being an unconstitutional violation of the Section 3 democratic participation rights of the people in the various parties who support Ms. Blakeman's candidacy on their behalf, or potentially her rights to represent whomever she wants.

Election Finance

The ballot is relatively straightforward.  Where things get really complicated is election financing.

The first thing to know is that outside of election periods, you can donate to constituency associations, not candidates, and inside of election periods, you can donate to candidates but not constituency associations.  During elections, there is nothing prohibiting constituency associations from transferring funds to their candidate. So donations to constituency associations and campaigns can all end up in the hands of the candidate at election time. (I'm leaving out the donations to political parties, because the limits are so high, and there is no 1-1 relationship between parties and candidates, so figuring out where the money goes is more complicated.  The same principle applies, however.)

The limit for donations to constituency associations is $1000 per constituency association per year, but not more than $5000 to constituency associations of the same party.

The limit for donations to candidates is $2000 per candidate, but not more than $10,000 to the candidates of any one party.
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So if we assume, as the legislation has clearly done, that one candidate will be the candidate for only one party, then the amount of money that candidate can get from a single donor is the $2000 donation during the campaign to their campaign, and the $1000 per year donated to the constituency association.

If we accept the idea that a registered candidate can be the candidate for multiple parties, then they could still only receive the $2000 donation to their registered campaign, but they would be able to obtain the $1000 per year donation to all of the constituency associations.  So one person could, in one election year, provide to Ms. Blakeman $2000 more than they would otherwise be entitled to if  she were running for only one party.

However, the donor is also injured.  Because if they donate $1000 to Ms. Blakeman, their campaign donation limits for all candidates of the Green, Liberal, and Alberta parties is reduced by that amount.

Whereas in the past they could donate up to $5000 per party, up to a limit of $15,000 for three parties, by donating $1000 to Ms. Blakeman their limit goes down to $13,000, because it would be treated as a $1000 donation to the candidate of three parties.

Meanwhile, in the Real World...

Ms. Blakeman, if she is reading this, is undoubtedly laughing hysterically at the idea that she has multiple wealthy donors sitting around looking for strategies by which they can donate her several more thousands of dollars every year.

That's not the point.  The point is that there is nothing in the law that explicitly forbids a person from running for more than one party.  Nor should there be.  But the law doesn't really know what to do with that.

Also, political parties in their constitutions usually have requirements about candidates being members.  Most of the constitutions I'm aware of usually also have requirements about being a member of only one party at a time, though it's not hard to believe that restriction may not exist in the Liberal, Alberta, and Green parties at this time.  I'm curious how on-side this whole idea is with the internal party structures.

Monday, March 09, 2015

Law Students: Is Going Solo a Good Idea?

Susan Cartier Liebel is the CEO of Solo Practice University, and was interviewed recently on The Gen Why Lawyer podcast on the topic of whether going solo is a good idea for new lawyers.

The situation in the United States, where Susan works, is worse than here in Canada.  Law Schools are struggling.  Law school graduates are having a brutal time trying to get jobs in the legal industry.

But Alberta, where I live and work, still loses half of its new lawyers from private practice in approximately 8 years. Faster for women. Just this week, I heard from a friend of mine struggling to find the kind of job she wants.

The advice that Susan offers for the United States context is very applicable here.  And it's not complicated, but neither is it a quick fix.  She says being a solo practitioner means learning how to run a business from the ground up, being able to wear every single hat, and "becoming your own profit centre." And she says that you should be learning how to do it essentially as soon as you start law school.

It's not just about young lawyers having jobs.  It's also about people having lawyers, and the legal profession having people in it who don't want the lifestyle that big law firms offer their associates.

So if you are a law student or a junior lawyer, or you are considering leaving the private practice of law, do yourself a favour and listen to what Susan has to say about it.  Because she is right.

The answer, by the way,  is "Yes, going solo is a good idea. It's not easy, you need to start now, you are going to have challenges.  But once you make it work, you will never ever want to go back."

Thursday, January 08, 2015

PS v Ontario, 2014 ONCA 900 - Changes coming to Civil Mental Health Law?

Citation
PS v Ontario, 2014 ONCA 900

Background

P.S. is a 56-year-old male, who lost his hearing before developing language skills. He is of average intelligence, but had a traumatic childhood, and in the 1990s was convicted of the sexual assault of a minor. At the expiry of his sentence he was civilly committed to a maximum-security mental health facility as a paedophile likely to cause harm to others, and he remained in that facility for 17 years.

His doctors agreed that a maximum security facility was both unnecessary given his risk, and also unhelpful to his treatment.

Patients who are civilly committed are subjected to periodic reviews of their status before panels which have the authority to discharge them if they no longer meet the legal tests for civil commitment.  In Ontario, the panel is referred to as a "Consent and Capacity Board."  Under the Mental Health Act, RSO 1990, c M7 the CCB has the authority to cancel certification, and to transfer patients to other facilities.  It has no other powers.

The Application

P.S. challenged the constitutionality of his detention on a large number of grounds.  The two grounds addressed by the Court were whether his rights to due process under section 7 of the Charter had been violated, and whether he had been discriminated against in contravention of section 15 of the Charter by virtue of not having received appropriate interpretation services to allow him to receive appropriate treatment.

The Court's Findings

The Ontario Court of Appeal held that P.S.'s constitutional rights had been violated by the failure of the institution to provide adequate interpretation services for him to receive treatment.  The Court also held that the legislative scheme itself was unconstitutional and violated the section 7 rights of "long term" patients (those held in psychiatric facilities longer than 6 months).  As a remedy, the Court severed the section of the MHA that allows patients who have been certified for 6 months to have their certification renewed, effectively making it impossible to hold a person in the civil system for more than 6 months.  The Court stayed this remedy for one year to give the Government of Ontario the opportunity to rewrite the legislation to provide greater procedural protections for long term participants in the mental health system.

Analysis

The Ontario Court of Appeal hung its hat on the idea that the Supreme Court of Canada jurisprudence that has evolved surrounding the treatment of criminally accused who are deemed unfit to stand trial or not criminally responsible by reason of mental disorder should be applied in the civil context also.  That analogy has not consistently been adopted by the courts in the past, but the Ontario Court of Appeal argued that the risk to the liberty interests of a person who is held potentially indefinitely in psychiatric care is sufficiently analogous to that of the criminally accused that this jurisprudence should apply.  Given the very limited authority of the CCB, the Court found that legislation did not adequately protect the interests of long term patients, and was unconstitutional.

Implications

As a person who works in both the civil and criminal mental health areas, albeit in Alberta, I have to express some satisfaction that the Ontario Court of Appeal has suggested that patients held in psychiatry facilities should not have fewer protections for their liberties by virtue of not having been accused of crimes.

It remains to be seen whether Ontario will challenge the decision to the Supreme Court of Canada. But if the case is confirmed at the Supreme Court, or is upheld as persuasive authority in other provinces, it can be expected to result in considerable changes to the mental health review legislation in many provinces. Civil review tribunals can expect to receive additional powers, giving civilly committed individuals more control over their care.  Perhaps more significantly, however, the increased procedural fairness requirements on these tribunals will likely result in increased cost and complexity.  This will in turn require more in order to ensure that these patients, who are generally disadvantaged in terms of being able to represent themselves in legal proceedings, are afforded every opportunity to assert their rights.

Mental health legislation is typically the only legislation in Canada that allows a person to be held against their will, indefinitely, without any guarantee of appearing before a judge of a Court of Law.  The inordinate amount of power given to psychiatric hospitals under this legislation, and the risks to individual liberties arising from the exercise of that power, justify doing more than is done now to protect the liberty interests of involuntary psychiatric patients.  Whether provinces get the balance right is likely to be a subject of additional litigation, much of which will be based on the Ontario Court of Appeal's willingness in PS v Ontario to extend the analogy between the criminal and civil mental health systems.  That analogy will also likely be the foundation of a number of other civil challenges to the procedural fairness of mental health tribunals across the country.