Karen Selick Sounds Off

Tuesday, November 06, 2012

Bad Law + Bad Jurisprudence = Horrendous Consequences

Percy Schmeiser in canola field

A colleague and I at the CCF sometimes like to kick around the question, “Which are the top 10 worst decisions of the Supreme Court of Canada?”

One case that we always nominate is Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34, where the Supreme Court held by a five-to-four majority that farmer Percy Schmeiser had infringed the patent of Monsanto after his canola field was accidentally contaminated with Monsanto’s patented, genetically modified (GMO) seed. The GMO seed was probably carried to Schmeiser’s field from neighbouring farms via the wind or insects, but however it arrived, it was without his knowledge or consent. Yet the decision held, essentially, that Monsanto owned his canola crop and he didn’t.

While the SCC took the sting out of the decision by holding that Schmeiser owed no damages to Monsanto, its decision on nevertheless set the stage for many problems down the road.

A new documentary “Percy Schmeiser: David v. Monsanto” by German filmmaker Bertram Verhaag is available for viewing free until November 10 at this website. Percy Schmeiser narrates the history of his court battle and explains the serious negative implications of this poorly reasoned court decision. I recommend this excellent film.

Although I believe that the court decided wrongly in Monsanto’s favour, I nevertheless find it disturbing when I hear people describe Monsanto as “evil” and then proceed to tar all corporations—and all businesses, for that matter—with the same brush. In my view, any evil that Monsanto or other corporations may do stems directly from destructive laws and conditions set in place by the state. It is the state that grants coercive monopolies through patent law. Without the power of the state, Monsanto could not exercise any significant control over farmers. It is the state, not businesses or corporations, that should be blamed.

Of course, the morality of intellectual property law is hotly debated among libertarians and conservatives. I expect that some readers of this blog are ardent supporters of patent law. However, for those with an open mind or a great deal of curiosity, here are some links where you can read the moral and practical arguments against state-enforced intellectual property rights:

· Against Intellectual Monopoly, by Michele Boldrin and David K. Levine (you can download the whole book for free)

· Against Intellectual Property, by Stephan Kinsella (2001 article from Journal of Libertarian Studies)

· Contra Copyright, Again, by Wendy McElroy

Thursday, October 13, 2011

Sticks & stones...and tribunals & money

Towards the end of the SCC's hearing on the Whatcott case (October 12, 2011), someone said words to this effect: "Contrary to what your mother told you about sticks and stones, words can and do hurt people."

This is a misunderstanding of what parents were actually trying to achieve when they used that old cliché. They knew thei

r kids were feeling hurt after being called nasty names. That's why they pulled out the cliché in the first place. But what they were really trying to tell their kids is, "Don't dwell on it. Don't let someone else's ignorance control your life. It's within your power to direct your thoughts. You can choose to ruminate over that insult and make yourself miserable, or you can choose to dismiss it and go merrily on with your life."

One of the worst problems with so-called "human rights codes" is that they promote exactly the opposite behaviour from what parents were trying to promote with the "sticks and stones" platitude.

Human rights codes encourage people to dwell on insults, to nurture grievances against belligerent ignoramuses, and--even worse--to claim a reward for feeling insulted. Yes, there's a pot of gold at the end of the human rights complaint. Someone was awarded $17,500 for feeling insulted by William Whatcott.

Hey, for that kind of money, it pays to feel insulted, doesn't it?

Nobody raised this point before the Supreme Court, but it's becoming obvious to me that Canadians are much more likely these days to brood over and obsess about minor affronts that they once would have dismissed. Human rights codes, like most other legislation, are producing unintended consequences. They are promoting the very loss of self-esteem they were supposed to prevent.

(cross-posted to The Justice Report, CCF's blog)

Monday, September 19, 2011

Why Not Focus on Remedies Instead of Prohibitions?

I'm thinking about all the resources spent on prosecuting people for selling raw milk and wondering, "What would happen if those resources were spent instead researching the benefits of bentonite clay and activated charcoal on individuals suffering from food poisoning, then educating the public about these remedies?"

The same question applies to all the resources spent preventing people from smoking. Wouldn't the money be better spent figuring out what protective effects fruits and vegetables seem to have for certain smoking populations, and then applying that knowledge to reducing harm?

Something else that needs more research is the question of how all the dead bacteria left floating in pasteurized milk might affect people. When they are killed, don't those bacteria release toxins? Aren't those toxins left in the milk?

Tuesday, August 16, 2011

Privatize the CBC? They can't even do a proper cost-benefit analysis

The Globe and Mail commented today that the CBC published a consultant's report showing that the broadcaster "has a $3.7 billion economic impact every year, while a privatized version without the parliamentary grant would produce only $1.1 billion in economic activity."

Can't these guys even do a proper cost/benefit analysis?

The CBC subsidies, if applied elsewhere or even given back to taxpayers, might well generate economic activity far in excess of the $2.6 billion that the CBC would apparently cease to generate. Until we know how large that alternative benefit might be, it's not possible to say that subsidizing the CBC is a good use of taxpayers' money.

The subsidies, incidentally, are $1.1 billion. Here's the consultant's report.

Economist Fréderic Bastiat wrote about the "broken window" fallacy in his essay "What Is Seen and What Is Not Seen" 160 years ago. The CBC and its consultants apparently still haven't heard of it.

Thursday, July 28, 2011

The "right to water" is a phony right

In today's Globe and Mail, Maude Barlow argues that the federal government is now obligated, under United Nations treaties, to recognize a "right to water" throughout the country. More specifically, she wants the feds to install safe drinking water and sanitation systems on the numerous aboriginal reserves that don't have them.

But if such systems can be built, then they can be purchased. There is nothing to stop the people on those reserves from constructing such systems for themselves, or paying others to build systems for them if they personally lack the knowledge or skills. That's what everyone else in Canada has to do. Barlow is simply demanding that aboriginals be permitted to use other people's capital instead of their own. But why should they have this privilege?

I live in an Ontario village with about 250 homes. My household's drinking water comes from a well, and we have installed our own filtration system to ensure its purity. Our waste water goes into a septic system that the earlier owners of this home paid to install. Thousands, if not millions, of other Canadians have similar water and sewage arrangements, all paid for out of their own pockets.

The so-called "right to water" that Barlow subscribes to cannot be a genuine right. Certainly, everyone does have the right to stand out in the rain on their own property and collect the water as it falls, since it falls for free from the heavens and doesn't require anyone else's labour. But the situation changes when you start demanding that purified drinking water be piped directly into your home. That requires someone's time and effort. If you don't put in the time and effort yourself, someone else will have to do it. And if you're claiming the right to other people's time and effort without paying for it, this is tantamount to claiming a right to enslave them.

Like other "positive rights" the so-called right to water violates the genuine rights of individuals to life and liberty. It's a phony right.

Monday, July 04, 2011

What if Canada treated education the way we do health care?

Many Canadians have a firm conviction that health care must be a publicly-owned monopoly--i.e., that allowing individuals to purchase private care in competition with the public system would spell the end of the public health care system.

But we allow parallel systems of public and private education. All taxpayers are forced to pay for the public system, but we don't coerce all education consumers into accepting only the public system. People are free to educate their kids at private schools if they aren't happy with the public schools, so long as they are willing to pay extra.

Canada's treatment of health care is premised upon the notion that health care is indispensable, crucial, important, etc., etc. But surely education is also indispensable, crucial and important, isn't it? Yet the existence of private schools has not undermined support for the public school system, as medicare advocates claim would happen in the medicine market.

Thursday, June 09, 2011

Marx or Hayek for the Supreme Court? A Rebuttal

In his article “Yes, we must pay attention to judges’ values” (Globe & Mail, June 8, 2011) Professor Allan Hutchinson of Osgoode Hall Law School opines that when it comes to filling the two upcoming vacancies on the Supreme Court of Canada, “It would be folly to select an out-and-out ideologue, especially if they otherwise lacked (or even had) all the qualities of meritorious judges. Karl Marx and Friedrich Hayek would make for less than ideal judges.”

Well, at least Hutchinson is half right. Karl Marx would indeed have made a lousy judge, but not because he was an ideologue. It’s because his ideology stinks. It’s patently inimical to human flourishing. Wherever it has been put into practice, it has resulted in the widespread impoverishment of the population and the deaths of many innocent victims at the hands of totalitarian despots. All of these results are predictable and inevitable consequences of socialism. Marx’s failure to recognize this—or perhaps to give a damn—seems to show a certain lack of judgement on his part. I’d never want to entrust him with making any decisions that could affect people’s lives.

Friedrich Hayek, on the other hand, espoused a free-market ideology which has been the unceasing engine of human prosperity and well-being despite the worst efforts of socialists to rein it in. Hayek was both an economic and social liberal (in the original meaning of the word—i.e. he espoused liberty). He wrote elegant, masterful works called The Constitution of Liberty and Law, Liberty and Legislation which every Supreme Court justice would do well to read. He won a Nobel Prize for economics. He would have made an extraordinarily good judge.

How can anyone seriously compare Karl Marx and Friedrich Hayek in the same breath? Hutchinson’s error comes from failing to recognize the lack of parallelism between the two ideologies, which he posits as the extreme positions on a continuous left-right spectrum. Marxism and classical liberalism are not two sides of the same coin--not at all.

In a Hayekian state, anyone who voluntarily wanted to opt out of capitalism and live as a Marxist would be at liberty to do so. Quasi-intellectuals like Marx could form communes and collectives to their hearts’ content. They could agree to whatever motivation-sapping form of wealth redistribution, and whatever stifling regulations, they could concoct. No-one would stop them. The only rule that Hayekian ideology would impose would be a prohibition against coercing someone into joining a commune against his will, or coercing them into remaining after the period they had contracted for had expired.

There’s no parallel under Marxism. A Marxist state (or even a moderate socialist state like Canada is today) does not allow dissidents to opt out of socialism and live as capitalists. On the contrary, dissenters are coerced through taxation into supporting the system they may despise. They still have to pay for the public schools even if they educate their kids at private schools or at home. And dissenters can’t opt out of the voluminous regulations imposed by socialism, even if they are willing to assume all the risks involved in exercising their own judgment. They can’t buy unpasteurized milk even if they observe that their health is better with it.

There’s nothing wrong with ideological judges, so long as their ideology is rational and beneficial. If Stephen Harper could find a modern-day Friedrich Hayek to appoint to the SCC bench, it would be a sensational blessing to the country.

(This blog does not necessarily represent the opinion of my employer, the Canadian Constitution Foundation.)