On Reading "The National Inquiry Report on Missing and Murdered Indigenous Women and Girls"

The National Inquiry Report on Missing and Murdered Indigenous Women and Girls and Two-Spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex, and asexual people

Reactions to Reclaiming Power and Place, the title of the National Inquiry Report, have ranged from angry sarcasm to pious platitudes.  I thought there would be lots of room in the middle ground for a reasoned, dispassionate if sympathetic reading.  I had heard numerous declarations that all Canadians should read and educate themselves from this report.  I, therefore, gave myself the task of reading the 1200-page report, the 300-page Quebec supplement, and the 50-page executive summary.





When I was done, my immediate reaction tended toward angry sarcasm.  I had to remind myself of the experience of working on a large research project (though nothing in the order of magnitude of the National Inquiry) where the end result was a hodgepodge which failed to satisfy anyone's vision of what the project was meant to accomplish.

How are the victims served by this report?

It is a bit of a fib (an "exaggeration" if you will) to say I "read" the entire report.  I looked at every page until I understood its general content, stopping to read further when an entry struck me as directly relevant to the fates of missing and murdered Indigenous women and girls.  With the exception of the testimony of grieving relatives, I was in awe of how infrequently I could see a direct connection between the content of the report and what happened to victimized Indigenous women.  The burning question for me was "How does this report benefit the cohort of Indigenous women who have been and will be victimized?"

Who will read this report?

Despite Prime Minister Trudeau's claim that "this report will not sit on a shelf, gathering dust," my impression was that the report was designed to be ignored.*  Who, other than someone like me (a retired nerd with a PhD who blogs as a hobby), is ever going to read this 1550-page report. On page 199 of Volume 1b, the inquiry calls "on all Canadians to:  [ . . . ] Develop knowledge and read the Final Report."  How seriously can we take the "call to justice" to "read the Final Report" when that "call" appears after we have read 920 pages of the Report we are being called to read?

The purpose of the National Inquiry?

The only part of the Report which attempts to provide comprehensive data on what happened to the victimized women and how the criminal justice system dealt with their cases is Annex 1 of Volume 1b, the "Forensic Document Review Project," which runs from pages 233 to 276--that is, the last 43 pages of the 1550-page report.  In this section of the Report we learn:

Over the course of its review, the FDRP identified the following significant issues: 

1. There is no reliable estimate of the numbers of missing and murdered Indigenous women, girls, and 2SLGBTQQIA persons in Canada.
2. The two Royal Canadian Mounted Police (RCMP) reports dated 2014 and 2015 on missing and murdered Indigenous women and girls identify narrow and incomplete causes of homicides of Indigenous women and girls in Canada.
3. The often-cited statistic that Indigenous men are responsible for 70% of murders of Indigenous women and girls is not factually based.
4. Virtually no information was found with respect to either the numbers or causes of missing and murdered Métis and Inuit women and girls and Indigenous 2SLGBTQQIA persons. 

Unfortunately, for me and, I suspect, for most Canadians, the reason for the Inquiry's existence was to find answers to these issues, and obviously these questions remain unanswered.  Instead of a dedicated pursuit of answers to these questions, the Inquiry concluded:

The truths shared in these National Inquiry hearings tell the story – or, more accurately, thousands of stories – of acts of genocide against First Nations, Inuit and Métis women, girls, and 2SLGBTQQIA people.

"Cultural genocide" versus genocide

I think it is reasonable to ask how the inquiry can claim, on one hand, that there is little to no accurate, factual information about what happened to these women and, on the other hand, to conclude that these women were victims of "acts of genocide"?  The obvious answer is that the genocide conclusion has little or nothing to do with the findings of the Inquiry but was simply a foregone conclusion based on the already known 150-year history of the relationship between the government of Canada and its Indigenous peoples.

The 2015 report of the Truth and Reconciliation Committee concluded that

For over a century, the central goals of Canada’s Indigenous policy were to eliminate Indigenous governments; ignore Indigenous rights; terminate the Treaties; and, through a process of assimilation, cause Indigenous peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide.”

Doubtlessly, the National Inquiry was compelled to move beyond this "cultural genocide" accusation in order to avoid the criticism of its harshest critics that its work would be redundant.  There had already been some 40 reports on Canada's Indigenous peoples and certainly the Harper Conservative government had argued that a 41st report would not reach any significantly new conclusions.

Additionally, "cultural genocide" has been debated in and ultimately not recognized by the United Nations. The Inquiry's Chief Commissioner, Marion Buller confirmed, in an interview on Power and Politics, that the claim of genocide was a strategy to compel various levels of government to take emergency measures and supply funding for the Inquiry's recommended projects. So far, the Inquiry's 231 recommendations, most of which require additional government funding, together with the accusation of a Canadian genocide against Indigenous women, seem most likely to engender a populist backlash against government support of First Nations rather than effective leverage.  The sympathy of the Canadian population for missing and murdered Indigenous women has, arguably,  been squandered.

Enfranchisement and assimilation deemed genocide

In his monograph, Indigenous Nationals, Canadian Citizens, Thomas Courchene describes "competing models in play in terms of approaching the relationship of Indigenous peoples to the Canadian state."  According to Courchene, "The first of these models is [. . .]  'enfranchisement,' namely converting Indians to regular Canadians, [ . . .] . At the other end of the spectrum is [. . .] an Indigenous-to-Crown relationship that can be characterized as 'institutionalized parallelism,' e.g., separate parliaments and Indigenous delivery of provincial-type services. Neither of these is acceptable; the first because it is now constitutionally impossible, and the second because, among other reasons, it would be prohibitively expensive."

Seemingly the National Inquiry has decided to label the first model as "genocide" and advocate for the second: greater independence and autonomy for First Nations, together with additional government funding and accommodation from non-native Canadians. The Inquiry's extensive recommendations seem, at first glance, highly impractical--certainly there is no discussion of potential costs.  More striking for me, is that the Report offers little evidence or even theoretical argument that the expenditures they are recommending would specifically and effectively redress the victimization of Indigenous women and girls.

Assumptions of cause and effect

The underlying assumption of Reclaiming Power and Place is that if the problems of poverty, education, health care, culture and identity within native communities, and the lack of understanding of police, health-care providers, social workers and institutions outside native communities were corrected, the fates of the Indigenous victims could have been and can be avoided.  These counterfactual claims may, in fact, be valid, but one would hope that the commissioners would offer something more than an underlying, unquestioned general assumption.  Personally, I remain unconvinced that "culture and identity" (pages 327 to 338 of Vol. 1a)  or the promotion of Indigenous arts and crafts (pages 53 to 74 of Vol. 1b) will address the problems of young women who have been sexually abused and murdered both inside and out of their Indigenous communities.  I remain deeply skeptical that the return of "lost traditions" is a solution for young Indigenous women facing alienation, anomie and abuse in their home communities. (See Be Yourself!  Is This Really Good Advice?)

Gynocentrism:  Pros and cons

I understand the commissioners' perspective that global, large-scale solutions are necessary even though the Inquiry's purpose was understood to be (at least in the popular imagination) the very precise and concrete question of what happened to more than a thousand (if not thousands of) missing and murdered Indigenous women and girls.  However, rather than a global approach, the commissioners very deliberately opted for a gynocentric focus, making the inquiry dominantly about women's pursuit of answers to problems being encountered by women, and solutions, including governance, to be found in the empowerment of women.  This approach seems laudatory, except that an obvious source, if not the source, of the problems being faced by Indigenous women is Indigenous men.

Although the Inquiry dismissed the claim "that Indigenous men are responsible for 70% of murders of Indigenous women and girls" as "not factually based," the Report offered no contradictory evidence.  In Annex 1 of Reclaiming Power and Place it is noted that in 100% of the 26 solved homicides of  Indigenous women from 2013-14 "the offender was known to the victim."

The Inquiry's response is:

In our view, the RCMP’s reliance on such a small number of cases creates an unreliable basis upon which to focus policy. A focus on spousal violence, on the basis of flawed statistics, has resulted in an erroneously narrow focus on Indigenous men as the perpetrators of violence against Indigenous women and girls, and neglects other significant patterns in relation to missing and murdered Indigenous women and girls in Canada.

However, the Inquiry has also adopted a very narrow focus.  The Report only gives a little more than a single page to "some men, who are also former perpetrators, [who] came forward to share their story"  (Vol.1b page 37).  The Inquiry decried negative stereotypes of Indigenous peoples and, clearly, did not want the Report to provide fodder for those stereotypes.  However, truth and transparency cannot be achieved if there is an unwillingness to incisively investigate specific cases.  Much of the Report is about grieving and "healing," compassionate objectives we should all support but, at the same time, we have to acknowledge that the purpose of an inquiry is to inquire rather than console.  Numerous testimonies within the Report are impressionistic accounts of dealings with police and health services.  The failure of police to pursue missing-persons cases, the arresting or threatening of the victims in domestic-abuse complaints, the kidnapping and rape of Indigenous women by police officers are all cases which should be thoroughly and objectively investigated and exposed.  The failure of hospitals to provide death certificates to the families of victims is an egregious failure and should be investigated and reported upon in detail.  However, in these instances, the Inquiry apparently took as its role the support and consoling of the victims and their families, rather than the investigation of the details of each case.  The Inquiry rightly criticized the negative stereotyping of Indigenous peoples but, at the same time, has promulgated negative stereotypes of every police office, teacher, health-care worker,  and social worker who has ever dealt with Indigenous individuals--not to mention branding every Canadian family that has fostered or adopted an Indigenous child as perpetrators of genocide.

Theories of causality

Criminology provides numerous theories and empirical data linking crime, poverty and race.  The Inquiry seems to have taken the general tenor of these theories of causation as a priori fact without much review of the available literature and without specifying a particular theory they were adhering to.  Obviously, there could be no empirical study of causes, if the Inquiry had decided at the outset not to investigate Indigenous perpetrators and, by extension, not to investigate perpetrators period.  It is worth noting that the Inquiry's theory of causation is unique.  Genocide is criminal but, beyond that, it is the underlying theory and conclusion of the Inquiry that genocide caused the crimes without being the crime.  In other words, the Report does not provide a single example of the murderer of an Indigenous woman being motivated by genocide but, nonetheless, concludes that the murders were precipitated by genocide.

Untold stories

Is it heartlessness, a total lack of compassion, to be critical of a Report which was such an outpouring of tragedy and emotion?  I return to my overarching question:  "Will this Report benefit young Indigenous women?"  It is disheartening to read in the Statistics Canada  Report on Homicide that in 2017, when the National Inquiry was at the peak of its activities,  38 Aboriginal women were victims of homicide, an increase of 32% compared to 2016. In 2017, 118 Indigenous males were victims of homicide.  According to the Statistics Canada Report,  18% of Indigenous homicides were considered to be gang related.  Indigenous women were 6 times more likely to be the victims of homicide than non-indigenous women, and Indigenous persons were 12 times more likely to be the accused in a homicide investigation than non-indigenous persons.  In terms of missing-persons reports, according to Statistics Canada, "[t]he proportion of victims reported as being missing prior to the incident being identified as a homicide was similar whether the victim was Aboriginal or non-Aboriginal (9% and 7%, respectively)."  The National Inquiry's concern for the fragility and healing of witnesses, together with the narrow focus and self-fulfilling prophesy of genocide, left many potential avenues of investigation and consideration untouched.

Alternative solutions

Claims of Indigenous perpetrators and criminality in Indigenous communities in no way contradict the indictments of the National Inquiry Report that we must all stand behind and support Indigenous persons and communities as they deal with cycles of violence and incomprehension.   Unfortunately, claims of a Canadian genocide put the question of perpetrators, intentions and motives foremost in Canadian minds. The challenge, which has been recognized since the 1970s  (as opposed to assimilation as the only option in 19th-century thinking), is how to offer Indigenous communities and individuals both independence and support at the same time.  A first step, as Courchene suggests in Indigenous Nationals, Canadian Citizens, is to recognize how the Canadian state systematically undermines the economic development of Indigenous communities.  As Courchene points out, "Canadians tend to lay the blame for the dire straits of most of the reserves at the feet of the Indians"; however, as a matter of "federal policy," Indigenous people do not have property rights over the reservation land where they live.  Consequently, "banks are most reticent in providing loans for capital investment or for mortgages because the Indian Act legally restricts banks from seizing and selling the asset in the event of default."  The possibilities of economic development without venture capital are negligible to nil; hence the endless cycle of government subsidies which always fall short of ending poverty.  Courchene comments:

It is incomprehensible that Canada and Canadians have allowed this federal instrument of mass impoverishment to reign so long over the hundreds of Canada’s First Nations reserves.  (Italics in the original)

Recognizing that smaller reserves have neither the population nor the resources to be financially viable, Courchene proposes a Commonwealth of Sovereign Indigenous Nations, modeled on the existing "Federation of Sovereign Indigenous Nation [ . . .] the representative body of the seventy-four First Nations in Saskatchewan."   An Indigenous commonwealth could be provincial or inter-provincial or, ideally, pan-Canadian, and it would give united Indigenous peoples the possibility of economic development.  If poverty and discrimination and lack of independence are the underlying causes of criminality and the deaths of Indigenous women and girls, then here is a large-scale, revolutionary approach worth considering.

Footnote

*Courchene's comment, in Indigenous Nationals, Canadian Citizens, on the 1991-1996 Royal Commission of Aboriginal Peoples paralleled my thoughts on no-one reading Reclaiming Power and Place:

Entitled People to People, Nation to Nation, RCAP consisted of five volumes, 440 recommendations (over a thousand if one includes sub-recommendations), 80,000 pages of hearings and 250 commissioned research papers.  Intriguingly, because it was so encyclopedic, not only did it defy summarizing, but it also ensured that no core message could emerge.

Consequently, the prevailing view was that the Chrétien government "more or less ignored the RCAP."

Courchene, Thomas J.. Indigenous Nationals, Canadian Citizens (Queen's Policy Studies Series) (p. 6-7). MQUP. Kindle Edition. 

What Is Irony?

What is irony?

Irony is the interruption or disruption of an established or expected discourse.  (This definition might not seem immediately helpful, but bear with me.)   Let's begin with a simple example of verbal irony.  You and a friend are looking out the window on a cold and rainy day.  Your friend says, "Beautiful weather."   Your friend is being ironic.  In the context, the "expected discourse" is "what terrible weather!"  You assume that what your friend "really" means is that the weather is terrible because that is what you would expect him to say.  In fact, some people claim that "saying the opposite of what you mean" is a definition of verbal irony.  However, it is rare that the intended meaning of an ironic statement is exactly the opposite of what is said.  Irony is almost always ambiguous (see Do No Harm:  Avoid Irony).

Verbal, situational and dramatic irony

There are three different kinds of irony:  verbal irony, situational irony and dramatic irony.  Irony resists definition because these three types of irony seem totally different from and unrelated to each other.  Verbal irony is saying one thing but meaning something completely different (nearly the opposite) of what is said. (As in the example above.) Situational irony is when what happens seems surprisingly, strikingly different from what you expect to happen.  (Example:  A ballerina, famous for her balance and grace, trips and falls while crossing the street.)  Dramatic irony is when we in the audience know something that the characters in a play or film don't. (Example:  John's best friend Peter is hiding in the bedroom closet.  We, the audience, know Peter is there and has been sleeping with John's wife.  In this dramatic or comic situation, John's telling his wife how much he admires his good friend Peter is dramatic irony.)  What each of these three different types of irony share is that they are the interruption or disruption of an established or expected discourse.

                                              

What is a discourse?

A statement, a speech, an announcement, a text, a paragraph can all be synonyms for "a discourse."  When we talk about "discourse" what we are referring to are all the ways in which sentences or utterances or images are connected together.  Analyzing the discourse of a paragraph, we could be looking at something as simple as the words used to connect one sentence to the next--words like "however," "although," "furthermore," "therefore" and "consequently" which connect one sentence to another and tell us the relationship between two sentences.  In the discourse analysis of a speech or a television commercial or a literary work, we might consider the themes, motifs, tone, style, patterns of repetition, the use of specific words or images; in short, all the elements that hold the parts together.

Disrupting the discourse of a eulogy

Imagine that Felix is delivering the eulogy at the funeral of his best friend George.  In the middle of expressions of admiration and his sadness at the loss of his friend,  Felix inserts "and George was a terrible golfer." This interruption of the tone and theme and formal register of the eulogy would be understood as irony.  What exactly does "and George was a terrible golfer" mean in this context?  It doesn't mean that Felix has decided to criticize George's golf at this moment.  Nor does it mean the opposite, that "George was an excellent golfer."  Exactly what an ironic statement means is always ambiguous.  Why did Felix say it?  We can imagine lots of good reasons for Felix's decision to interrupt his own discourse.  Irony--among men--often signals a bond of mutual understanding and communication.  (You can tell that two men are old and good friends by the way they freely insult each other.)   Felix may have wanted to lighten the tone.  The aside and comic relief are typical instances of irony.  Perhaps Felix knew that too much sadness, even at a funeral, wasn't George's style and this interruption would hold back the pathos. The irony might even make people laugh; even at funerals, it is sometimes good to laugh.

Can a situation be a discourse?

Anything can be called "a text."  (See Structuralism, semiotics and readings of the everyday world.)  Since anything--your life, my life, what happened at lunch today--can be considered and "read" as a "text," it can be analyzed as discourse.  So:  today at lunch you decided to abandon your habit of eating junk food and opted for the "healthful salad" instead . . . and consequently got food poising.  That is ironic.  The expected discourse of your narrative (the story of your lunch) and your decision was that you were going to be healthier, but the opposite (or near opposite) happened--you got sick.

Even dramatic irony interrupts a discourse

The basis of dramatic irony is that we know something that a character doesn't.  The literary critic Northrop Frye describes any literary work where the reader felt superior to the characters as being in the "ironic mode."  In my example above, we can see that John's, the cuckold's, discourse is interrupted and disrupted by our knowledge of the fact that Peter is hiding in the closet.

Where's the irony?

A constant problem in defining irony is identifying where exactly the irony is?  Is irony in the intentions of the speaker?  Is irony a matter of interpretation? Both are possible, but as Linda Hutcheon has argued, ultimately, irony just happens (Irony's Edge).  It happens in life, in situations, in stories and books, in performances.  Sometimes it is intended; sometimes it isn't.  Sometimes it is interpreted, sometimes it isn't.  Like the sound of that infamous lonely tree falling in the desert, irony exists when it is perceived.

Irony as a trope or figure of speech

A potential problem with what I've been saying here is that every trope or figure of speech is a disruption of literal discourse.  When Mary announces that "John is a pig," she is speaking metaphorically--even if she is unaware of the fact.  Her statement is a trope, a turning away from, the literal meaning of her words.  She is not saying that John is a four-legged source of pork chops.

As Paul de Mann has claimed, "Irony is the trope of tropes" ("The Concept of Irony," Aesthetic Ideology). Viewed in the other direction, every figure of speech is a shift, a disruption or interruption, moving the discourse from a literal meaning to a figurative meaning. Each of these figurative shifts is minor or subtle or micro or partial or local in relation to the macro shift of irony.  Consider the possibility that when Mary says "John is a pig," she is being both metaphoric and ironic.  The metaphoric level of her words is minor; in fact, would go unnoticed.  However, if she is being ironic--let's imagine that everyone knows that John is obsessively neat and clean--then the shift of meaning is of another magnitude.

Irony as "random"

I find it instructive that when millennials encounter a delightful example of irony, they often describe it, gleefully, as "random."  It is an intuitive observation that irony disturbs a pattern or sense of order by introducing a non sequitur; that is, something disconnected, that doesn't fit and might, in the extreme, seem completely "random."

The origins of "irony"

The word "irony" is derived from a stock character in Greek comedy known as the eiron--the superficially "dumb guy" who turns out to be quite clever.  The eiron is a dissembler who hides his intelligence beneath a facade of ignorance and humility.   There is no verb in English for "being ironic" but, if we wanted to imagine a good possibility, it would be a combination of "dissemble" (meaning to disguise or the opposite of "resemble') and "disassemble" (meaning to take apart--in this case, the expected discourse).  

Paul de Mann suggests that, as a rhetorical feature, irony is basically parabasis; that is, a shift of register in a discourse.  (De Mann's observation is the inspiration for my definition of irony.) The typical example of parabasis is an aside, but the etymological root is the chorus in Greek theatre which would interrupt the actors' speeches with their own comments.

Keeping it simple

If all this seems too much to hold onto, a simple definition of irony would be "The near opposite of what is expected happening or being said." By the way, in this post, I have included the image of an "Irony" wine bottle.  Other than the name the image doesn't have much to do with the post:   I was being ironic.

Also, I've seen Al Morrisette's daughter being criticized because the lyrics of her song "Ironic" aren't ironic.

Actually, the song is about situational irony, and I assume her critics were expecting verbal irony.  How ironic!

Alanis Morrissette - "Ironic"

 

 

The Pronoun Wars

Pronouns and antecedents

When I first heard about "the pronoun wars," I assumed the debate was about the old problem of the correct pronoun to use when "everyone" was the antecedent.  This is the related question that I put on the mid-term exam for the course on Applied Grammar I was teaching in 1994.

You have been asked to edit an official government document.  You have to decide what to do about the following sentence: 

"In the future every university student will be required to pay 51% of the cost of their education." 

If you decide to change the sentence (or not to change it), you will have to explain your decision to three people:  Mr. Boyle,  who is a strict grammarian; Ms. Doyle, who is a proud feminist, and Mrs. Murphy, who likes to see problems solved in a practical, common-sense fashion.Explain the problem with the sentence, and give your decision and justifications.  

Traditional grammar versus feminism

The traditional grammarian would insist that the antecedent "every student" was singular, and the pronoun which followed must be the singular "his."  The feminist would not accept that all university students should be identified with the masculine "his." Ultimately I was directing students to the "professional writer's" solution, which was to restructure the sentence to eliminate the problem and impasse. However, unbeknownst to me, in the same year, psycho-linguist Steven Pinker published The Language Instinct in which he argued "that everyone and they ["their" in my example] are not an 'antecedent' and a 'pronoun' referring to the same person in the world, which would force them to agree in number.  They are a 'quantifier' and a 'bound variable'."

Singular they

Consequently, Pinker concludes:  "There is no reason that the vernacular decision to borrow they, their, them for the task is any worse than the prescriptivists' recommendation of he, him, his.  Indeed, they has the advantage of embracing both sexes and feeling right in a wide variety of sentences."  The problem I was teaching my students to correct simply did not exist in terms of linguistics, but it did perhaps persist as a sociological problem at the time.  These days Pinker's solution seems to have gained consensus, and what is known as the "singular they" has certainly become commonplace.

Pronouns in the new millennia

However, my imagining of the "pronoun wars" came nowhere near the complexity and sensitivity of the conflict as it has recently played out online and in the media.  In my 1990s reflections, the proper pronoun to use when referring to "transgender" or  "non-binary" or "non-conforming" individuals never crossed my mind.

It is impossible to research this question without encountering the name Jordan Peterson, the University of Toronto professor of psychology, who has parlayed his fifteen minutes of infamy for refusing to follow the University's transgender pronoun policy into a career as a viral presence on the internet and in the media.  My millennial counselor (my guru on all things post-2000) has strongly advised me against reading Peterson as a waste of my time.  Of course, that injunction has made me all the more curious.

Jordan Peterson:  victim or villain?

The obvious question:  why wouldn't Professor Peterson address his students in their preferred pronouns?   Isn't it just a matter of politeness to address people the way they want to be addressed?  Isn't that what we do with titles, names, nicknames, preferred middle names, etc?  The supreme irony in Peterson's interviews is that, despite the difficult lives (lives Peterson is making more difficult) of people who suffer the dysphoria of feeling or appearing that their genders have been misaligned, he manages to make himself appear the victim.

Peterson frequently refers to two letters he received from the University of Toronto which he manages to make sound quite dire.  Here are the letters in question:

https://thevarsity.ca/2016/10/24/u-of-t-letter-asks-jordan-peterson-to-respect-pronouns-stop-making-statements/

The gist of the letters is "you have been making some people uncomfortable, please stop." However, Peterson is quite right to point out that they invoked "the law." The second letter states, "The law in Ontario, specifically the Ontario Human Rights Code, protects against discrimination based on gender expression and gender identity."  This overkill invocation was an invitation to Peterson to escalate his opposition.

Pronouns for every gender identity?

Peterson typically makes the valid point that the pronoun shifts being proposed by LGBT Resource Centres seem impracticable and awkward.

HE/SHE	HIM/HER	HIS/HER	HIS/HERS	HIMSELF/HERSELF
zie	zim	zir	zis	zieself
sie	sie	hir	hirs	hirself
ey	em	eir	eirs	eirself
ve	ver	vis	vers	verself
tey	ter	tem	ters	terself
e	em	eir	eirs	emself

I am honestly confused by this table from the LGBT Resource Centre. Peterson claims that "in New York there are 31 protected gender identity categories."  I wondered if this was true, and if the number of new genders explained this plethora of pronouns.  There are over 100 pronouns in the English language.  By my count, around 40 of them might be affected by gender (presuming you need new versions of "they" and "you"). The idea of introducing 124 new pronouns into the English language is fantastical--exactly the point the project's detractors take delight in emphasizing.  Is this what advocates want or are asking for?  Do transgender individuals even care about pronouns?

Who's side are you on?

When I watched the TV Ontario episode of The Agenda with Steve Paikin on "Genders, Rights and Freedom of Speech" (which has itself become a source of controversy), I was surprised that the only transgender individual on the forum panel, Theryn Meyer, sided with Jordan Peterson in opposition to the University's pronoun policy (and the Human Rights legislation in both Ontario and Canada intended to prohibit discrimination against transgender individuals).

The Argument against "gender expression"

The intent of the recent changes to the Ontario Human Rights Code seems clear enough--and similar legislation is being proposed at the federal level and in various countries.  "Race, age, sex, and sexual orientation" seem evident categories, but I noted with interest that "The Code does not define creed" even though it is listed as a category to be protected from potential discrimination.  The newly added category of "gender identity and gender expression" is extremely vague and fluid.  It has been suggested (not entirely facetiously) that the legislation would open the door (literally) to the cisgender male using the women's locker room on the grounds that he is "expressing his female gender."

"Gender identity" and "gender expression" remain undefined

"Expression" and "identity" are problematic concepts (see "Be Yourself": Is This Really Good Advice? and "Be Yourself": Part II).  Apparently, the framers of the Code, decided to pass on the problem of definition to "the courts and tribunals," as they have done with "Creed."  Anywhere this subject is discussed, it is noted that "gender" is cultural and "sex" is biological (although some postmodern deconstructionists like to challenge the latter claim--see Deconstruction and "Ways of Talking).  "Gender" could be listed as a proscribed ground of discrimination without any reference to "expression" or "identity."

Is a new law necessary?

Just as sexual discrimination covers both men and women (even though the original impetus was discrimination against women), gender discrimination would cover every possibility from hyper masculinity to extreme femininity and every mix, variation and crossing in between--without necessarily making any reference to sex or identity or expression.  However, while this change might solve legal and discrimination issues, it does not address the question of pronouns.

Do we really need new pronouns?

Do we really need gender neutral pronouns?  Maybe.  In writing I find myself using "s/he" and "his/her" fairly frequently, or sometimes using "her" when the tradition is to use "he"--when talking about God, for example.  However, are transgender persons being served by the pronoun debate?  It seems the public sphere is being dominated by "experts" on the extreme fringes of the issue with little voice being given to the .6 percent of the population who might be personally affected.

Practical matters

I struggle to imagine myself asking someone "What pronouns do you use?"--as is recommended by LGBT Centres and legislators.  Would anyone, including a transgender person, be pleased with or even understand this question? In a personal interaction, it is highly unlikely that I would use a gendered pronoun with someone:  "you" is gender neutral, and we do not address people in the third person in English; i.e., "he/she," when we are speaking to them.

Gender binary is arbitrary (but so is language in general)

As I have commented elsewhere, the gender binary (he/she) is arbitrary and certainly isn't a necessity in the English language (see Falling in Love is Unprofessional).  Third person singular is the only gendered pronoun in English; therefore two pronouns "he/she," which expand morphological to his/her, him/her, herself/himself--a total of eight possibilities.  Not an enormous stumbling block for Anglophones, but French and other Romance languages add gender to every noun and adjective.  Is anyone seriously considering that some of the worlds most widely spoken languages are going to completely restructure themselves to become gender neutral in order to accommodate transgender individuals?

What really matters to the people most affected?

When I ask myself what is the pronoun debate really about, I come away with the conclusion that we are witnessing a variety of agendas--political agendas, academic and professional agendas, self-aggrandizing agendas--but relatively little focus on what might really matter to transgender people.  When Jordan Peterson claimed to fear that he might be accused of "hate speech" if he failed to use the correct pronouns, I thought this counterfactual claim to be farfetched.  Unfortunately his opponent in the debate, Nicolas Matt, a lecturer in Transgender Studies at the University of Toronto, was all too eager to confirm that refusing to use the required pronouns "was hate speech."

Are the pronoun wars helping or hurting LGBT individuals?

As I researched online to confirm Peterson's claim that New York had instituted "31 protected gender categories" what I immediately discovered in print and on Youtube were individuals gleefully mocking the notion of 31 different genders.  Since the point of the legislation is to protect the transgender non-conforming individuals from mockery and intimidation, I couldn't help but recognize that the legislation was providing the opportunity for widespread public mockery and intimidation.  I fault Jordan Peterson for using his authority as a professor and a psychologist, as well as a writer and intellectual, to give license to the willful ignorance of yahoos and trolls.  At the same time, LGBT communities have a lot of work to do to clarify and, I dare say, simplify their positions.  The legislated Orwellian threat of prison sentences for faulty pronouns is the wrong way to go and has encouraged a backlash against exactly the people the legislation was intended to support.

As I researched the claim of "31 protected gender categories," I eventually came across this New York City publication:

https://www1.nyc.gov/assets/cchr/downloads/pdf/publications/GenderID_Card2015.pdf

The "31 gender categories" are, in fact, an ostensive definition to explain "gender identity" and "gender expression" rather than new categories of gender.  The legislation will doubtlessly be difficult to implement, but perhaps we should all begin by attempting to understand it.

Facebook's 51 Genders

9,000 SNC-Lavalin Jobs Versus 250,000 Canadians Who Make Their Income from Canola

Canola matters!

Watching CPAC the other day I was taken aback to read the caption that 250,000 Canadians, including 43,000  farmers, make their incomes from the sale of canola.  (See https://www.canolacouncil.org/markets-stats/industry-overview/ for more.) 40% of Canada's canola is sold to China.  China is currently blocking all imports of Canadian canola on the grounds that it contains contaminants.  (Remember when George W. Bush blocked the importation of Canadian beef for two years? I actually know some Canadian beef producers who went bankrupt as a result.)

An exercise in futility

In Canada, the common presumption is that the Chinese blockade is retaliation for the fact that we continue to hold Sabrina Meng Wanzhou, the Huawei CFO, under house arrest pending extradition.  This Chinese retaliation is outrageous, unfair, unjust; therefore, it's time for all of us Canadians to get together and scream and howl and whine and throw tantrums at one another.  Feel better?  I don't.

The obvious, legal, just solution:  release Meng Wanzhou

The solution is obvious, legal, just and appropriate: release Meng Wanzhou.  ( See A Dozen Reasons the Minister of Justice Should Release Sabrina Meng Wanzhou.)  Rather than doing what is obvious and justified our politicians have painted themselves (and us) into a corner with the false and hypocritical claims that in Canada extradition is a "non-political, judicial affair" and Canada is following "the rule of law." No matter how obviously false and how many ways these claims can be disproven, they continue to be repeated.  (Please consult the Canadian Extradition Act.)

In comparison to the consequences of Canada's arrest of Meng, the SNC-Lavalin scandal is minor--unless you are a politician

Despite the serious consequences for individual Canadians of the breakdown of our diplomatic and trade relations with China, Canadian politicians and the media remain relentlessly focused on the SNC-Lavalin soap opera.  It might seem a stretch to imagine that 250,000 Canadians are about to lose 40% of their income (or 100,000 Canadians are about to lose 100% of their income), but even if the numbers are inflated, they are the tip of the iceberg of consequences about to come our way.  By comparison, the loss of 9000 SNC-Lavalin jobs is the lesser disaster, but even this claim has been debunked.  The company has signed undertakings, agreements and leases requiring that it remain in Canada for years to come.  The only real consequence of the SNC-Lavalin scandal is that, come October, in the game of musical chairs that we call Canadian democracy, some politicians will lose their seats and others will get seats.  The ramifications for individual Canadians will be minuscule. In contrast, Canadian bungling of the Meng extradition request has (according to most commentators) led to the imprisonment of two Canadians, the death sentence of a third, and, potentially, massive job and financial losses for Canadians in both the short and long term.  An additional consequence is that, in the eyes of the world, Canada will appear, not just plain stupid, but ready and eager to kowtow to American dictates no matter how spurious and counter-to-Canadian interests the requests.  (See Why Does Everyone Care So Much about the Meng Issue?)

The US Grand Jury indictment is an invitation to release Meng

The US attorneys have unsealed the Grand Jury indictment of Meng Wanzhou and made it available online.  You can see the complete document here:

https://www.justice.gov/opa/press-release/file/1125021/download

Rather than showing Meng's potential guilt, the indictment seems almost like an invitation to Canadian officials to dismiss the extradition request.  If you read the document carefully, you will discover how weak, insubstantial, unprecedented and lacking in evidence the accusations are.  It is pretty dry reading, so let me parse out a few key passages and observations.

Guilt by association

The indictment conflates four defendants.  This conflation has the rhetorical effect of making Meng guilty by association. Let me unpack the obvious point here, because it really matters, even though it's surprising that it needs to be said:  being the citizen of a country accused of spying or corruption does not make you a spy or a criminal.  Being the employee, even the CFO, of a company that is accused of a crime does not make you a criminal.  Being the daughter of a man accused of a crime does not make you a criminal.  Despite the obviousness of this logic, the indictment attempts to make Meng Wanzhou guilty of a crime, simply by associating her with Huawei, with her father, the founder of Huawei, and with Skycom, a German company doing business in Iran.  However, since the Canadian concern is only with the accusations against Meng, it should be a simple matter to separate her, as an individual, from the co-accused--all of them companies--she is being associated with.

Meng is the only individual ever charged for doing business in Iran

To reiterate, Meng Wanzhou is the only individual to be accused in the indictment, the other defendants are companies.  In fact, Meng is the only individual ever to be accused of a crime in this type of case even though there is a long list of companies and financial institutions which have been convicted of the crime she is accused of indirectly committing--moving money in Iran.

Here is a short, selected list of the companies which have already been convicted in the USA of financial dealings with Iran:

J.P. Morgan Chase:  the company paid a fine of $5.3 million

Deutsche Bank was caught making transactions in Iran worth $10.86 billion and was fined $258 million.

Societe Generale, the French bank, undertook $15.5 billion in transactions with Iran and was fined $1.3 billion

Hewlett-Packard sold hundreds of millions of dollars worth of products to Iran  I haven't found evidence of any punishment having been enforced against HP.

Standard Charter Bank was convicted of doing 100s of billions of dollars of business with Iran and was fined $1.5 billion.

ING, Barclays, Credit Suisse, ABN Amro Bank, and the Australian and New Zealand Banking Group have all been convicted of contravening American sanctions and paid fines.

Canadian Extradition is political and the decision is up to David Lametti

In all of these cases not a single individual was convicted or even charged with a crime.  The  Minister of Justice, David Lametti, is tasked, according to the Extradition Act, with considering "all the relevant circumstances" and determining if the extradition request is "unfair" or would impose a penalty of less than two years imprisonment on the individual accused, or is based on politics, ethnicity or nationality.  How can the Minister look at this list of precedents and conclude that the extradition request is fair, that it is not political, not based on Meng's nationality or ethnicity, and will likely result in Meng serving more than two years in an American prison--as required by the Act?  Should reason prevail, the Minister according to the law can dismiss the extradition request "at any time,"  yet, I have seen no evidence that the possibility is even being considered or, based on the firing of Canada's ambassador to China, is even allowed to be considered.

What is the evidence that Meng committed a crime?

If Canadian law (the Extradition Act) does not convince you that Meng should be released, consider the evidence against her as spelt out in the indictment.

"Between approximately February 2008 and April 2009, MENG served on the SKYCOM Board of Directors."

She was on the board of Skycom for approximately a year.  None of the members of the board of any companies doing business with Iran which I have listed above has ever been charged with a crime.  The USA has an extradition treaty with Germany, but no other member of the Skycom board, past or present, has been accused of a crime.

The only evidence of a potential crime is a PowerPoint presentation and some "talking points" from 2014 which she had deleted from her laptop (and presumably the FBI or CIA or NSA of DoJ were able to recover--while they manage to make deleting an old file seem very suspicious).  I have read through those "talking points" which are in English, but I have to assume English is not the language in which she wrote them, and I can't see any way in which they are relevant.  I invite you to consider them and (if you can) please explain to me how they are evidence of a crime.

As for the PowerPoint presentation, which has been under discussion since the day Meng was arrested (and as her lawyer immediately pointed out, she did not prepare herself):

"During the meeting, which took place on or about August 22, 2013, MENG spoke in Chinese, relying in part on a PowerPoint presentation written in Chinese. Upon request by the Financial Institution 1 Executive, MENG arranged for an English-language version of the PowerPoint presentation to be delivered to Financial Institution 1 on or about September 3, 2013. 

19. In relevant part, the PowerPoint presentation included numerous misrepresentations regarding HUAWEI's ownership and control of SKYCOM and HUAWEI's compliance with applicable U.S. law, [. . . .]"

This very thin thread is, apparently, the only evidence that Meng, as an individual, committed a crime.  It is not pure pedantry to point out that "Chinese" is not a language, any more than Indian, African, Canadian or Brazilian are languages.  Presumably, she spoke in Mandarin to the executive of "Financial Institution 1" (as it is identified in the indictment) and the executive in question also spoke Mandarin.  We know from earlier published reports that "Financial Institution 1" is, in fact, HSBC (the Hong Kong Shanghai Banking Corporation).  Anyone who understands translation would also understand that a translated document should never stand as absolute evidence unless it can be carefully compared to the original text.  It seems safe to assume that the Grand Jury could not read Mandarin.

The victims of Meng's crimes

Despite the seriousness of the issues, it is hard to read the expression "Victim Financial Institutions" in the indictment without a sour chuckle.  These "victims" are exactly the financial institutions which have been making billions in profits from sidestepping US sanctions against Iran and other countries (some of which I have just listed above).

As the New York Times pointed out

"In 2017 [ . . .] HSBC provided the prosecutors with Ms. Meng’s 2013 PowerPoint presentation. HSBC said this week that it was cooperating with the government and was not under investigation itself."

The same article details that prior to the Meng investigation

"federal prosecutors had accused it [HSBC] of willfully failing to stop money laundering by customers, including in countries like Iran. To settle that investigation, HSBC had paid a $1.9 billion fine, entered into a deferred prosecution agreement and agreed to have a court-supervised monitor installed inside the bank."

HSBC and the US Attorney make SNC-Lavalin and the Liberals look like lily-white, innocent lambs 

(Yes, HSBC got one of those precious "deferred prosecution agreements" that SNC-Lavalin has been begging Canadian prosecutors and politicians for.)  The point here is that HSBC has huge financial incentives for putting the blame for their most recent financial transactions in Iran onto Meng Wanzhou.   The US Attorney for the Eastern District of New York, Richard Donoghue, the former Chief Litigator for CA Technologies, a Huawei competitor, who led the prosecution team in the Grand Jury hearing and issued the original warrant for Meng's arrest in Canada, also appears to have a vested interest in allowing HSBC to escape prosecution and making Meng responsible for HSBC doing business in Iran.

In a democratic country that prizes free speech, why has there been no discussion of the merits of Meng's defence?

Since December 1, 2018, when Meng was first arrested (actually since three days before, when Prime Minister Justin Trudeau was informed of the pending arrest) the Canadian Minister of Justice (Jody Wilson-Raybould at the time, now David Lametti) has had the right and the obligation according to Canadian law (the Extradition Act) to "at any time" refuse the arrest and deny the extradition.  Despite the absurdity of the conflicts-of-interest situation, despite the law, despite the weakness of the case against Meng, no-one (with the exception of the now-fired John McCallum) has dared to say a word about the merits of Meng's defence in the public domain.

Meng's bail conditions compared to Bernie Madoff's

Despite the urgency of the situation and the potentially dire consequences of the Meng extradition,  Canadians remain mired in media coverage of the endless he-said-she-said melodrama of SNC-Lavalin.  The comment I hear most frequently from Canadians about the Meng extradition is "Oh look, she gets to stay in her Vancouver mansion!"  Just for the record, the Meng bail conditions, a 10-million-dollar bond and house arrest, are exactly the same bail conditions which US courts imposed on Bernie Madoff, the Wall Street titan who ran a 64-billion-dollar Ponzi scheme defrauding pension funds, charitable foundations and thousands of individuals.

Why Does Everyone Care So Much about This Huawei Issue?

The Huawei case matters to Canadians

I don’t know about “everyone,” but I can tell you why I, as a Canadian, “care so much about the Huawei issue.” In theory Canada and the USA are independent countries and trading partners. However, for most of my adult life, I have been aware of the argument that in practice the relationship is more like a colony and the empire which controls that colony. In this kind of colony-empire relationship the colony can benefit from the relationship and pursue its own interests, but when the interests of the colony and the interests of the empire are in conflict, the colony must always give priority to the interests of the empire. No case in my life time has more acutely demonstrated Canada acting against its own interests in order to serve the interests of the USA than the arrest and extradition of the Huawei CFO.

Diversifying our trading partners versus "the China clause"

As an independent country it is in Canada’s obvious interest to diversify its trading partners, to establish trading relations with other countries and most importantly with China, the second largest and fastest growing economy on the planet. It is in Canada’s interest to adopt Huawei’s 5G technology, and to benefit from the jobs and research that Huawei Canada has to offer. The Americans have made their opposition to Canada-China trade relations clear by insisting on what is known as “the China clause” in the recent US-Canada-Mexico trade agreement.

https://www.cbc.ca/news/opinion/...

Arresting Meng blocks Canada's trade with China:  who benefits?

Requiring Canada to arrest Meng (she could have been arrested in numerous other countries) had strategic value for US interests: by causing a rift between China and Canada. Thus the Americans doubly insured that trade negotiations between the two countries would be halted. However, it is not American behaviour which disturbs me and makes me “care so much about the Huawei case.” The behaviour of Canadian politicians and the Canadian media is what I find incredibly frustrating and disturbing—and makes me care about the Huawei case more than ever.

Are Canadians really honest, law abiding and open-minded?

Canadians tend to think of themselves as honest, law abiding, and open-minded. We admire politicians and media journalists who tell us repeatedly that we are honest, law-abiding and open-minded. As long as we keep hearing this message, we have no reason to question ourselves. We can focus our attention and outrage on “other people” who are not as honest as we are. However, in the Huawei case, our politicians have not been honest, the media has simply repeated the lies and mistakes of our politicians, and two thirds of Canadians have believed what they have been told. We have not followed the law, the Canadian Extradition Act, in the Meng extradition case. We have remained closed-minded, refusing—in the public domain—to even consider that the Meng extradition is not in keeping with Canadian law. The Canadian ambassador to China was fired by the Prime Minister, Justin Trudeau, just for saying that Meng had a strong case—which experts agreed was obvious. The new Justice Minister, David Lametti (the former Justice Minister Jody Wilson-Raybould was demoted in the middle of Meng case) has decided to proceed with the Meng extradition. What chance was there that he would decide against extradition when his boss, the Prime Minister, had fired the ambassador, just for saying that not extraditing Meng was a possible outcome? Despite this obvious political interference and the new Justice Minister saying publicly that extradition is “political,” you will still hear politicians, journalists and people in general in Canada insisting that the Meng extradition is a “non-political, judicial” affair.

Why are Canadians operating against their own best interests?

Why are Canadians behaving this way? This is where the case gets so sad and I find myself caring so much. The only reason I can see (other than a total lack of awareness) that our politicians, our media and people in general would behave this way is that they have automatically adopted the attitude of the victim, of the colony, and are convinced that if we don’t do what we think the USA wants, we will be severely punished. How pathetic! We had ample reason to reject the initial warrant: the US Attorney, Richard Donoghue, who issued the warrant, was in a conflict of interest. We had ample reason to deny extradition: it was obviously political, based on Meng’s nationality and ethnicity, and there was no precedent for arresting an executive in this type of case. The Americans (in general) would have accepted our legal arguments and might even have respected our independence, but instead we reverted to cowering acquiescence and the self-delusion that we Canadians are honest, law-abiding and open-minded.

A Comparison of Scandals: SNC-Lavalin Versus the Extradition of the Huawei CFO

The collapse of the Liberal Government

Months away from an election, with the resignations of Jody Wilson-Raybould (Veterans Affairs Minister), Gerry Butts (Prime Minister's Chief of Staff), and now Jane Philpott (President of Treasury Board), the Liberal Government is collapsing under the weight of the SNC-Lavalin scandal.  Is the Government being brought down by the "right" scandal?

Remediation legislation tailor-made for SNC-Lavalin

In September, 2018, the Liberal Government passed the "Remediations Agreement" legislation, tailor-made to allow SNC-Lavalin to escape prosecution for bribing public officials in Libya.  Although the legislation was an amendment to the Criminal Code, it was passed as a part of a Budget Implementation Act (Bill C-17).  No doubt to the surprise and consternation of the Liberal Government, the Public Prosecutors Office decided to proceed with the criminal prosecution of SNC-Lavalin rather than negotiate a "remediation agreement" as permitted by the newly-passed legislation.

The origin of the scandal

In most chronologies the scandal began when Jody Wilson-Raybould had a meeting September 17, 2018, with the Prime Minister and the Clerk of the Privy Council, Michael Wernick, and they raised the economic and political implications of the Public Prosecutor's decision to proceed with criminal charges against SNC Lavalin.  However, as law professors Jennifer Quaid and Emilie Taman point out an op-ed in the Financial Post, "Ottawa officials keep pushing myths about 'remediation agreements' amid the SNC-Lavalin scandal," the mess began with the original bill which was rushed through as a budget bill without sufficient consultation, reflection  or scrutiny.

"National economic interest" cannot be considered

Quad and Taman confirm that "In the specific context of prosecutions under the Corruption of Foreign Public Officials Act (under which SNC is charged), the national economic interest is explicitly excluded as a relevant factor."  In addition, they explain that "The prohibition against taking it [national economic interest] into account is taken from the OECD Convention on Corruption and is designed to prevent countries from favouring local businesses in the enforcement of corruption offences. We would be at odds with our major trading partners if we did not abide by this rule." (The Organisation for Economic Co-operation and Development is made up of 36 member countries including Canada, the USA, the UK, etc.)

Paying bribes on foreign and on Canadian government contracts

I remain convinced that the Canadian extradition of the Huawei CFO is a more significant scandal.  However, Radio Canada's Enquete episode on SNC-Lavalin has caused me to waiver in my conviction that SNC-Lavalin's crimes are water under the bridge. (There is an intended pun here.) As the episode outlines, SNC-Lavalin established a pattern of paying brides in Libya and Tunisia, then continued the practice in Canada paying bribes, most notably to Dr. Arthur Porter, Director General and CEO of the McGill University Health Center, and Michel Fournier, the Director of the Federal Bridge Corporations responsible for construction on the Jacques Cartiers and Champlain bridges in Montreal.

SNC-Lavalin crimes and punishments

Fourrnier, who had extensive and close ties to the Liberal Party and was appointed to the Federal Bridge Corporation by the Liberal Government, was convicted of accepting 2.3 million dollars in bribes from SNC-Lavalin and sentenced to five and half years in prison--the longest prison sentence yet imposed.  However, Fournier is now out of prison having served less than a year of his sentence.  Arthur Porter and Yanai Elbaz were charged with receiving 22 million in bribes from SNC-Lavalin.  Elbaz pleaded guilty and was sentenced to 39 months; Porter died in Panama before he could be brought to trial.  The former CEO of SNC-Lavalin, Pierre Duhaime, pleaded guilty to  "helping a public servant commit breach of trust" and was sentenced to 20 months of house arrest. Riadh Ben Aissa, an SNC-Lavalin Executive responsible for construction, pleaded guilty to forgery and money laundering in Switzerland and has been sentenced to 51 months.

There has never been an SNC-Lavalin trial

The culprits have been caught and convicted; why pursue further investigations and another trial?  As the investigative journalists of Enquete point out, a number of people have been convicted of receiving bribes from SNC-Lavalin, but no-one from Lavalin has ever been convicted (or charged) with paying a bribe.  Where did the money come from?  And where has it gone?  There has never been an SNC-Lavalin trial.  All the felons have negotiated their convictions and sentences, which implies that all the the details, strategies and mechanisms of their crimes remain undisclosed.

Remediation requires that the company comes clean

In this context we can better understand the Public Prosecutor's determination to go to trial.  As Quaid and Taman point out, the protection of employees and stockholders "is not sufficient to justify a RA. There is a good reason for this: In order for RAs to work, they have to focus on promoting compliance, which presupposes that the company is willing and able to admit it acted badly and to change its ways."

How can the prosecutors confirm compliance if they remain in the dark about how the company's illegal activities have operated in the past?  As the investigators of Enquete underlined, remediation agreements can easily become "corruption tax" [my translation]:  companies pay bribes or commit fraud and when they get caught, under remediation, they pay a fine, which they can easily afford, and this process becomes business as usual.

Is the scandal political, ethical or criminal?

How big a scandal is the Liberal Government's attempt to pressure the Ministry of Justice into arranging a remediation agreement for SNC-Lavalin?  The political fallout is now obvious.  We can easily imagine the scandal costing the Liberals the upcoming election.  The Liberals would be more than happy to contain the scandal as an "ethical violation" and accept a slap on the wrist from the Ethics Commissioner.  Were the Liberal Government's actions criminal?

The Relationship between the Attorney General and the Director of Public Prosecutions is governed by precise and measured legislation.  The purpose of the Public Prosecutor's Office is to ensure the "independence of the prosecution decision-making function from inappropriate political control, direction and influence."  On the other hand, the act also gives the Attorney General the power to "issue directives in respect of specific prosecutions" and even "to intervene in proceedings or to assume conduct of prosecutions."  Jody Wilson-Raybould had the power to intervene in the SNC-Lavalin case.  Her intervention, in itself, would have been "extraordinary" (a first, in fact, as pointed out in the Justice Committee hearings) but it would not have been criminal.  However, had she intervened, the reasons being suggested for her intervention would have made her actions illegal and criminal.

If she had intervened for economic reasons she would have been acting in contradiction to the law governing Remediation Agreements which clearly states that "national economic interests" cannot be considered.  If she intervened for political reasons, to save votes in Quebec, she would have been contravening the act which established the Public Prosecutors Office.  In other words, if she had succumbed to the pressure, she and the Liberal Government would have been guilty of criminal acts--contraventions of both the Remediations Agreements act and Public Prosecutions act.  The Liberal Government should be grateful for her stalwart defense of the law and preventing them from committing criminal acts.

How Gerry Butts avoided answering Justice Committee questions

Listening to Gerry Butts before the Justice Committee, I was struck by how he invoked "not wanting to caste aspersions," "not going to answer hypotheticals," and "not being a lawyer" with such frequency that his two and a half hours of testimony resulted in very little substance.  His rebuttal of Wilson-Raybould's detailed testimony was largely about character; in the vein of "I'm a good person, so I wouldn't say or do that;"  "they are good people, so trust me, they wouldn't say that"--which he used to dodge every single question about whether a Wilson-Raybould claim was true or false.

"National economic interests":  finally the question gets asked!

As I predicted in my previous post, his reiterated and often emotional justification for the government actions (meaning the pressure they put on Wilson-Raybould, but didn't really put on her) was 9,000 jobs--exactly the argument which the Public Prosecutor was not allowed to consider according to the Remediations Agreement law.  Surprisingly no-one on the Justice Committee raised the problem of this contradiction, even though Conservative MP Michel Rempel raised exactly this point in the House of Commons.  Does this absence of Conservative comment in the Justice Committee mean that a Conservative Government might be planning to offer SNC-Lavalin a Remediation Agreement if elected in six months?

Only Erin Weir, the Saskatchewan MP from the  Co-operative Commonwealth Federation (CCF), asked a question which came close to exposing the contradiction between Butt's liberal mantra of 9000 jobs and the letter of the Remediations Agreement law.  Unfortunately, Weir misidentified the law as a DPA (deferred prosecution agreement) and was himself misidentified by CBC as an NDP MP.  Gerald Butts was able to sidestep the question.

It took another two and a half hours in the afternoon of the committee hearings before Charlie Angus of the NDP and Elizabeth May,  Leader of the Green Party, raised the question, one after the other, of the provision within the Remediation Agreement legislation that "national economic interests" were not to be considered.  (I am delighted to report that within two hours of the hearings the National Post picked up on exactly the argument I would make.)  In response, Michael Wernick showed that he was very familiar with the expression "national economic interest,"  mumbling that "if you consult a lawyer they might have a different interpretation" then offered that the "public interest" of 9000 jobs was somehow different from "national economic interest."  The second time the question was asked, Wernick brusquely replied that this paragraph was "cut-and-paste from OECD regulations," conceding how haphazardly the Canadian legislation was put together, that he himself wasn't certain how the law should be  interpreted even though he was adamant the "9000 Canadian jobs argument" was acceptable, and since we just copied it into our Criminal Code, it really doesn't count, right?

Fallout from the Meng extradition?

In the meantime, while Canada and Canadians spent the day focused on the arrangement of the deck chairs, little attention has been paid to the fact that the ship may be sinking.  Meng spent 17 minutes in court today and her next hearing is set for May 7.  Mission accomplished for corporate America with collusion from the Canadian government.  Huawei's CFO and top global sales person remains under house arrest,  while exactly what she (as an individual) is accused of and what the evidence against her is remains under cover of darkness.  China refused a 5-million-dollar shipment of canola from Canada and "Canada’s economy practically grinds to a halt — and nobody saw it coming." Canadian exports to China were valued at $21.5 billion last year but that trade is shrinking fast.  Two Canadians are in prison and a third awaits execution.  No expression of sympathy or outrage from Canadian politicians will have any effect on their fates.

Laws that permit Government intervention and those that don't:  We got it backwards!

In the meantime the Liberal Government has clearly attempted to interfere in a judicial process which Canadian law clearly prevents them from interfering with--the prosecution of SNC-Lavalin.  And in the legal case (the Meng extradition) where the law clearly spells out that political (Minister of Justice) action is not just accepted but expected and required, the government seems paralyzed.  Listening to Robert Fife, Globe and Mail Bureau Chief, describing the new Minister of Justice, David Lametti, as "becoming a joke," and "every time they let him out he says something stupid" fills me with trepidation.  This "joke" is tasked with determining the outcome of the Meng extradition and our future relations with China.

Addendum

SNC-Lavalin VP convicted in Montreal, Dec. 15, 2019

Comparing "Remediation Agreements" and the Canadian Extradition Act, or Did the Liberal Obsession with SNC-Lavalin Prevent Jody Wilson-Raybould from Dealing with the Meng Extradition?

Asking you to compare the amendments to the Criminal Code entitled "Remediation Agreements" with the Canadian Extradition Act is probably way too nerdy a request.  Nonetheless, if you are as nerdily inclined as I am, and you have given up on getting any factual information through the Canadian media, as I have, you now have links to both documents online.

The first thing you will notice if you browse these documents (okay, I'm guessing you won't) is that the "Remediation Agreements" legislation, even though it is an amendment to the Criminal Code was passed as part a Budget Implementation Act (Bill C-17) under the purview of the Department of Finance.  In her explosive testimony to the Justice Committee yesterday, Jody Wilson-Raybould was goaded a number of times into saying she didn't like Remediation Agreements.  She wisely and judiciously declined to comment, but we can imagine she accepted but was not thrilled by this legislation which was clearly designed by the Liberal Government to get SNC-Lavalin off the hook.  Listening to her testifying yesterday, it became apparent to me that rewriting the criminal code to accommodate one particularly powerful company was not how Jody Wilson-Raybould thought the law should operate.

It is an understatement that we will hear ad infinitum in the days ahead that there was a failure of communication between the Prime Minister's Office and the Ministry of Justice, but the ultimate take-away is that Justin Trudeau was out of his depth dealing with the SNC-Lavalin case and out of his depth dealing with Jody Wilson-Raybould.   The fact that so many of his underlings and a civil servant like Michael Wernick took it upon themselves to pressure the Ministry of Justice tells me they felt Trudeau couldn't do what needed to be done and he, in turn, naively thought if the pressure was applied by his minions, he could maintain what President John Kennedy once infamously called "plausible deniability."

The absurdity of the situation is that it appears that no-one in the PMO actually read the Remediations Agreement act which they had passed.   If you compare the Extradition Act and Remediations Agreement legislation, you will notice that the Minister of Justice and Attorney General (they are one person) is mentioned repeatedly (more than 100 times) in the Extradition Act.  The Minister is called upon to act and guided as how to act in extradition cases.  In contrast, the Remediations Agreement regime mentions the Attorney General exactly twice:

The "remediation agreement" requires the AG's consent.  The process can only proceed if "the Attorney General has consented to the negotiation of the agreement."  Once the agreement is in place, profits from the company's crimes are "to be disposed of as the Attorney General directs."

The law is framed in such a way as to assume that everyone will go along with a remediation agreement.  No consideration was given to the idea that a prosecutor might refuse to use the Remediation Agreement legislation.  There is no provision in the legislation for the AG to recommend, advise, council or in any way interfere with the prosecutor's decision if the prosecutor chose a criminal trail over remediation.  The PMO, the Finance Minister and the Clerk of the Privy Council weren't just asking Jody Wilson-Raybould to use the influence of her office, they were asking her to break the laws which they themselves had written.

While the "powers that be" seemed to have forgotten that they gave Jody Wilson-Raybould no power over remediation agreements (other than to approve them), they did continue to hound her to do what she had no power to do: impose a remediation agreement.  No doubt as a crumb of respect, since the legislation apparently came from Finance and not Justice, the legislation twice mentions the Minister of Justice, giving her the power to make "recommendations" on future changes to the legislation.

At yesterdays's hearing, the NDP Member of the Justice Committee, Nathan Cullen, spoke of "the incredible hypocrisy" of the Trudeau Liberals talking of "judicial independence from political influence in the Huawei CFO extradition case" at the same time they were actively interfering in the SNC-Lavalin criminal case.  Cullen's point is well taken, but it is also important to understand the difference in the two legislations.  Unlike the Remediation Agreement legislation, the Extradition Act  specifically gives the Minister of Justice the power to act and gives multiple grounds on which she must act (see A Dozen Reasons to Release Meng).

Listening to Jody Wilson-Raybould's testimony yesterday, and realizing for the first time that she is an astute lawyer with an impressive command of the facts and the law, I was more surprised than ever that she had not dealt with the Meng extradition case.  Could the chaos of the SNC-Lavalin case have undermined what needed to be done when Richard Donoghue, the US Attorney, requested Meng's arrest?  Was Jody Wilson-Raybould left out of the loop when Justin Trudeau was informed three days in advance of the Meng arrest because Trudeau was already gun shy from having pressured Wilson-Raybould over SNC-Lavalin?  Was Wilson-Raybould hamstrung from dealing with the Meng extradition because she was on her way out as Minister of Justice?  Six weeks after the Meng arrest and two weeks before the Americans presented the indictment against Huawei Wilson-Raybould was demoted out of Justice.

Last night's and today's press conferences make it clear that Prime Minister Justin Trudeau's new mantra is "jobs, jobs, jobs" to excuse political interference in the SNC-Lavalin case.  However, our trade relations with China and the future of Huawei in Canada will also affect "jobs, jobs, jobs," not to mention technological advancement in Canada and the fact that two Canadians remain in a Chinese prison and a third is facing the death penalty.  The law, the Canadian Extradition Act, allowed him to solve the problem in concert with the Minister of Justice, but it appears that his mind was elsewhere.

Despite all the brouhaha, all the smoke, we should ask the question at the centre of the Liberal Government-SNC-Lavalin scandal.  Why didn't the prosecutor use the Remediation Agreement legislation with SNC-Lavalin?  In light of everything that has been said and is being said about the case, this paragraph from the Remediation Agreement legislation took my breath away.

Factors not to consider
(3) Despite paragraph (2)‍(i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved. 

The Corruption of Foreign Public Officials Act is Canadian legislation which says that it is a crime in Canada if a company paid bribes to public officials in another country.  This is exactly what SNC-Lavalin is accused of doing:  paying bribes in Libya from 2001 to 2012.    The law specifically instructs the prosecutor that she must not consider "national economic interest" in deciding whether or not to offer SNC-Lavalin a Remediation Agreement.  Obviously this is what the prosecutor has done.  She has followed the law and not taken into consideration the effects on the national economy--job losses, decline in stock prices and the risk of SNC-Lavalin moving their head office--in making her decision.  Ironically, or maybe it is just plain absurdity, the PMO and Department of Finance were pressuring the Minister of Justice to, in turn, pressure the prosecutor, to make a deal with SNC-Lavalin, using exactly the argument--"national economic interest"--which they specified in the legislation they themselves drafted should not be considered.

Absurdity will be piled upon absurdity in the days ahead, as the Liberals will have to argue that a remediation deal with SNC-Lavalin was in "the national economic interest"--exactly what they said should not be considered when they drafted the legislation in the first place.  Will any paid, professional journalist in Canada have a look at the Remediation Agreement legislation and point out this contradiction?   Hmmmm  . . . . probably not.

Addendum

A good friend just (3 March 2019) brought to my attention an article in the Globe and Mail (21 February 2019) by Robert Fife and Steven Chase ("Wilson-Raybould told cabinet SNC-Lavalin pressure was inappropriate") in which they note that "Under Canada’s new deferred-prosecution agreement law, prosecutors are not allowed to consider national economic interests when deciding whether to settle with a company."  I must humbly acknowledge that this is exactly the legal fact that I was trying to goad the mainstream media into promulgating.

The article also mentions that "Mr. Trudeau has acknowledged he raised concerns about the economic impact that a conviction could have on SNC-Lavalin when he met privately with the then-justice minister and attorney-general on Sept. 17 [ . . . .]" and additionally, "time and time again in Question Period he said anything he did was in the service of sustaining jobs in Canada."  Much as I congratulate Fife and Chase for mentioning the law in this article; rhetorically speaking, they did very little to highlight and draw attention to the fact that what the Liberal Prime Minister has admitted doing and done publicly in the House of Commons was in direct contradiction to the legislation on Remediation Agreements which the Liberal Government framed, drafted and passed into law.

Addendum 2

More comeuppance for me in my strident claims that the mainstream media was not informing Canadians of the law regarding Remediation Agreements.  I just (4 March 2019) read a really excellent answer to an SNC-Lavalin question on Quora which included a link to this article in the Financial Post (28 February 2019) by Jennifer Quaid and Emilie Taman entitled "Ottawa officials keep pushing myths about 'remediation agreements' amid the SNC-Lavalin scandal."  The authors note that:  

In the specific context of prosecutions under the Corruption of Foreign Public Officials Act (under which SNC is charged), the national economic interest is explicitly excluded as a relevant factor.
Remediation agreements may often turn out to be in the national economic interest, but the decision as to whether to negotiate them cannot be driven by that consideration.

Quaid and Taman go on to explain why the legislation is such a mess and may indirectly explain why the Prime Minister doesn't seem to know the details of the legislation his government passed.

Addendum 3

Correction:  In this post I claimed that Jody Wilson-Raybould had "no power" to impose a Remediation Agreement.  My claim was an exaggeration.  The new Remediation Agreement legislation did not specify that she could interfere in the case.  However, the Act governing the Relationship between the Attorney General and the Director of Public Prosecutions did give Jody Wilson-Raybould the power to interfere in a Public Prosecution but this power has never been used and if ever it is used a written justification must be published and made public.  For more, see: A Comparison of Scandals: SNC-Lavalin Versus the Extradition of the Huawei CFO