Thursday, 19 April 2018

Supreme Frustration - The Beer Case

As someone who enjoys an interesting beer, I was avidly following the recent Beer case (Comeau) in front of the Supreme Court. This case    had the potential to fundamentally overhaul century old laws that prevent the free flow of beer between provincial borders. It is rare that I ever go on a trip where I don’t explore the locally available brews, and while we have a very good beer scene in NB, I’m always happy to get my hands on come-from-away beers.

Today, the Supreme Court decision was rendered, and they sided with the Crown. As a beer fan, I hate the decision, and as a lawyer, I think it is a very poor decision – for several reasons. It appears to be missing the point as far as liquor travelling across provincial boards is concerned. Maybe it was because a Supreme Court case rarely hears new evidence; it is generally there to correct law, not facts. Maybe it is because Mr. Comeau’s legal team characterized section 121 of the Constitution (that goods produced in a province should be ‘admitted freely’ between provinces) as requiring that there be absolutely no inter-provincial import restrictions (much broader than beer/alcohol).   I think with some additional facts before the court, and a slightly different characterization of the point of law in issue, the result may have been different.

In the decision, the Court characterized a finding for Mr. Comeau as one which would essentially eliminate all barriers to any goods crossing provincial borders. However, the case was actually about an NB law that limited cross border importation of alcohol and not about everything that could cross a provincial border.   I am not sure why the case was characterized in that fashion, however I can make an assumption.

Mr. Comeau’s case was funded by the Canadian Constitution Foundation, which had an interest in this case being about “all the marbles” when it comes to inter-provincial trade The reality of this case is that it had little to do with Mr. Comeau other than he was the one charged with an offence that could be used to create a constitutional case. The Canadian Constitution Foundation – (full disclosure: I don’t know much about this Foundation although their Mission is to protect the Constitutional freedoms of Canadians – as they define it - through education, communication and litigation)  – would have had their own reasons for taking this case forward, and it likely would not have been related to Mr. Comeau’s $300 fine.  

There are a few reasons why I believe this was a poor tactic. Arguing that a finding for Mr. Comeau’s side would mean that the Provinces have no ability to control the import of any goods produced in any other Province is a sure-fire way to complicate things immensely. There are lots of products you may wish to limit. For example, there may be fertilizers or sprays that work in one Province’s ecosystem and not another’s. Nova Scotia has restrictions on honey bees, for what I believe are ecological reasons. To take it one step further, just because I produce beer in one province, it doesn’t mean I should be able to bring it into another province if it is unfit for human consumption. These types of restrictions would be, and should be, related to public or environmental health and safety, which is not really a ‘free trade’ issue.  I would have no problem with those sorts of restrictions being in place, and I expect most others would find such restrictions reasonable.

Some quotes from the case  demonstrate an immense misunderstanding on behalf of the Court:

“New Brunswick’s ability to exercise oversight over liquor supplies in the province would be undermined if non-Corporation liquor could flow freely across borders and out of the garages of bootleggers and home brewers.”  
Until recently, one of New Brunswick’s up-and-coming breweries was a ‘home brewer’. There are many very talented home brewers; why should the Court pick on them as somehow not being worthy of selling beer? It comes back to safety and if you are worried about the safety of a drink, that is a Department of Health and Safety issue, and not an importation issue - home brewers that sell should be subject to the same health inspections that any other consumable producer should be subject to. If the producer has been inspected by their provincial health and safety inspector, who cares if they produce in their home?

Additionally, in the Comeau case, there are areas of the NB legislative scheme that I would have liked to have seen expanded. While the SCC ultimately found that “though the Crown conceded that New Brunswick generates revenue from its legislative scheme, this is not the primary purpose of the scheme, but an offshoot of it or that the Province’s ‘tariff’ element was secondary to its ‘legislative scheme’.  I understand that there are beneficial regulatory aspects to our liquor control laws. You want to have properly trained and licensed wait staff for those consuming alcohol.  You want laws to protect against drunk driving, underage drinking, and public intoxication. You want to make sure that alcohol is safe for human consumption. These are all decisions that are made in relation to public health and safety.

In the end, what we are talking about is the ability to bring an allotted amount of alcohol from one province into another. It doesn’t matter what liquor it is (ie, if it is from somebody’s garage), the Province doesn’t have any programs related to inspecting liquor brought into the Province for safety; you can just bring the amount you are allotted to bring into the Province back home and drink it like you would any other liquor. Also, the Province places no restrictions on the amount of liquor you buy from them. They don’t ‘cut you off’ if they think you drink too much (you may get cut off if you are drunk at the time, but other than that, you can generally buy as much as you want/can afford). I don’t understand what regulatory goal they are achieving if it is possible to   buy 10 cases of Moosehead in NB, but buying 10 cases of the same beer in Quebec and  bringing it back to NB is an offence. To me, the specific restriction in question seems a lot more based on who gets paid, and is not really about safety.

I would have liked to have seen the Liquor Commission employees on the stand during Mr. Comeau’s original trial, to have been asked exactly how the inter-provincial trade restrictions fits into an overall ‘regulatory scheme’  - how does this restriction promote safety? What does the province do to inspect alcohol that the province sells? Does it have a lab that performs chemical testing on every product to ensure safety? What does this restriction aid, other than the generation of revenue? Why is extra-provincial alcohol so ‘risky’?

I think that the case was mischaracterized. It should not have been about there being 'no impediments, direct or incidental, on trade across provincial borders’ – it should have been about ‘what does this restriction actually do, other than generate revenue for the province?’

Monday, 25 April 2016

The Boring Abortion Debate

I cannot stand reading people debate abortion rights. I generally don’t get too worked up about what somebody’s views are, but I usually have a hard time accepting how they express and argue their views.

Now in some cases people have intelligent things to say, but the vast majority of the debate is dumbed down to two sides spouting simplistic catch phrases at each other such as ‘It’s a woman’s right to choose’ or ‘your mother chose to keep you’.

The debate is much more nuanced than ‘pro-choice’ and ‘pro-life’. Yet often people debate as if there are two homogeneous groups, one on one side and one on the other.

There is a spectrum of views. On one extreme end, you have people who want to outlaw contraceptives; every ‘encounter’ that has the potential of producing offspring should not be interfered with. Then you have people who believe that choosing to abort an unborn child in any situation is wrong (and want to prevent you from doing it too). Then, you have others that believe that aborting an unborn child is wrong, but don’t want to interfere with your choice to do so. After that you have a range of people who believe that in various circumstances it is okay to abort an unborn child, and you have people who believe that a woman should have the right to abort their unborn child regardless of the reason. For example I have met many people who consider themselves pro-choice, yet get a bit queasy with the idea that a person may abort their unborn child based on its gender, i.e., because it is female. So if you stand for abortions only being allowed in certain circumstances, how much probing of the woman do you do to ensure she is choosing the 'right' reason? Take her at her word, or is more investigation required? If so, how much of an investigation?

To add another layer to the debate, some people not only agree with some level of access to abortions, they also want the taxpayer to pay for it. If the taxpayer is to pay for abortions, does the taxpayer pay for all, or only ones performed for certain reasons? If the taxpayer pays for abortions, do we make doctors who have moral objections perform abortions, or only those who morally accept abortions? I see a lot of people blending a lot of these issues into one; I think they are separate (but related) issues. There are even people who call for mandatory abortions in some cases. Suffice to say there are lots of shades to this debate, and it is unlikely that two people on the ‘same side’ would see eye to eye on every issue.

In addition to all those views, there are different reasons a person may hold their view. On the pro-life side, it is often for religious reasons, but not necessarily.  Saying something like ‘Your belief in a 2,000 year old book shouldn’t interfere with a woman’s right to choose’ to a pro-lifer may not have anything to do with why the person is a pro-lifer. Even if their view is based on Christian teachings, that argument still likely misses the point; the pro-lifer likely believes an unborn child has a right to live, and that right is more compelling than the mother’s right to make decisions about her body. Referencing the ‘2,000 year old book’ seems to be more of an attempt to ridicule the pro-lifer than it is to actually grapple with their position - just go ahead and say that Biblical arguments don't influence you. Besides, an argument based on something being bad just because it is old is as worthless as an argument that says something is good because it is new - it is 2016 after all.

A pro-lifer may have their views because they don’t like the idea of women who they see as having loose morals having access to a ‘get out of jail free card’; or they may be a pro-lifer because they truly think that the unborn child is a life worth protecting, and that the unborn child’s right to life trumps a woman’s right to choose. 

Likewise, a person who is pro-choice may have different reasons for being so than other pro-choicers. One person may view it as an important woman's health issue, and another person may see it as a social benefit to allow people to prevent unwanted children from being born. If you are going to debate a person, you should find out why they hold their opinion, and not assume they have a standard set of uniform views which are shared by every member of their ‘camp’.

Some people may have views that are so ill-informed that they completely lack any sort of reasonability. I often see those people getting attacked on-line. If you want to attack them, go ahead, but do so knowing that the only thing you are likely accomplishing is making yourself look good among your like minded friends, you aren’t actually advancing the debate. I try to live by the motto ‘you can’t argue crazy’ and leave that sort of person alone. Take for example former US House of Representatives member Todd Akin who claimed ‘if it’s a legitimate rape, the female body has ways to try to shut the whole thing down’. Even to my non-scientifically trained mind, that sounds crazy. You can’t debate somebody who holds crazy ideas like that, because they are not capable of listening. The fact that somebody like that can get into a place of influence and power is scary, but the problem behind why a person who is so ignorant can climb to a position of power runs a whole lot deeper than social media posts are able to fix. Go ahead and denounce a person like that, but don't worry about engaging them in debate.  

Each side can also be sloppy when forming their arguments. I was in Fredericton a few years ago during a pro-life rally. The pro-life group plastered posters and banners down the main street containing images of aborted foetuses. Now I can understand using those sorts of images as a way to ensure the debate doesn’t remain solely in the abstract realm of the balancing of rights; when talking about a woman’s right to choose it can be easy to lose sight of the medical realities of the procedure. As an arguing tactic, I don’t find the use of images as offensive if they are used for that reason. In the case of the Fredericton rally, however, it seemed that the images were only used for their shock value – and there were no other points being made from what I could see. If your only argument is shock, you don’t have an argument.

Another poor argument many pro-lifers use is reliance on Biblical references. If you are debating with somebody who views the Bible as having authority, then go ahead and reference it. If, however, you are debating somebody who doesn’t view the Bible as an authority, it is kind of pointless to reference it – the other person will not be persuaded by what it says. You are going to have to rely on other tactics to effectively argue.

One of the more recent catch phrases adopted by pro-choicers is a person (usually male) saying “I don’t have the right to tell a woman what to do with her body” as if that blanket statement is a fully-formed self-contained argument. It sounds nice, and makes the person come across as being very modern and anti-patriarchy and all, but when that stand-alone statement itself is analyzed it appears, at least to me, as kind of nonsense. Firstly, as individuals we don’t have the right to tell anybody – male or female – what to do with their bodies. The government, however, does have that right, and I doubt we would want it any other way. There are lots of restrictions regarding what we can do with our bodies – drinking and driving, fighting, taking illegal drugs, etc. So as a society we generally do accept that some restrictions should be put on what we can do with our bodies, it is now just a matter of figuring out where to draw the line.

One significant restriction that is placed on women is that their right to choose is taken away once the baby is born. They can either take care of the baby, or give it up for adoption. They do not have the right to simply choose to neglect the baby or dispose of it once it is born. There is a point where the baby’s right to life trumps the mother’s right to choose what she wants to do. The law may even have something to say about a mother (and father) who believe they are properly caring for their child if they fail to meet certain basic and generally accepted standards (i.e., the Alberta couple who had a child who died of meningitis).  Nobody seems to be debating the value of the laws which call for parents to care for their children, so again, I would suggest that not many people actually support a woman’s (or man’s, for that matter) absolute right to choose whatever they want in every situation. I know this is close to the slippery slope argument (i.e., an unborn child's rights vs. a born child's rights), but it is clear that the vast majority of people agree a woman's right to choose comes with some restrictions. I know I may be taking the 'woman's right to choose' out of its intended context, and taking it too literally, but I think it is important that people think critically about the words they are choosing, acknowledge the grey areas, and not just parrot things they've heard. 

I think the argument is better worded when stated as ‘I don’t have the right to tell a woman what to do with her reproductive system’, because it is less general and more focused on the relevant aspect of the abortion debate. And the person saying may very well believe it, but again, there can be extreme cases where some pro-choicers wouldn’t support a woman’s absolute right to choose. Some people, for example, may not like the idea of a woman having the right to choose what she does with her reproductive system if she decides to drink, smoke, take drugs, and have unprotected sex with multiple partners while pregnant with a child she intends to bring to full term. If that is something you have an issue with and think that the government should intervene in such situation, you can’t really say you support a woman having the absolute right to choose what she does with her reproductive system. Maybe you don’t have an issue with a woman doing whatever she wants while pregnant, and if so, then you can properly use that argument. I think, however, that most people who use that argument would like see some limits on choice in extreme cases (i.e., an abortion of an otherwise healthy foetus after 8.5 months). It’s problematic to use absolute terms if you aren’t ready to apply your position in extreme situations.

Many people who debate this issue do it in a thoughtful manner that addresses the nuances. Most, however, are happy to get up on their soap box and simply bray ill-conceived (pardon the pun) arguments or catch phrases at each other. There is no effort made to truly debate the issue or to persuade somebody who has a different view point. It is all about who is loudest and who can make the other look stupid. I would much rather read a thoughtful piece by somebody who had a differing view from me than nonsense spouted off by somebody who has the same view.  

One opinion I see expressed from time to time, with which I agree, is that too much time and effort is spent on this issue (and here I am becoming part of the problem by blogging about it). I think part of the problem is that the issue is too easy to debate – it often appears like a two sided issue, involves a high degree of morality and emotion, and somebody can wade into the debate without having a great deal of knowledge or experience. It’s a debate where everybody gets to play, regardless of their skill level; which is likely the root of the reason that I find the abortion debate painfully boring. 

Tuesday, 22 December 2015

Polar Dipping - A Tradition to Consider

When I was in grade 6 I first heard of the Polar Bear Club. It was described to me by a school teacher as being a bunch of crazy people who run or jump into the water in winter. At that age, I think I was glad to be aware of the information, however, not interested in investigating any further and certainly not intending on ever being a part of such nonsense.

Quite a few years later, I moved out to the Red Head area of Saint John, New Brunswick. In retrospect, I recall a number of New Year’s days when we would be headed out to an annual family get-together and would leave the house around 12:20 just to be greeted by a seemingly endless stream of cars zipping past the end of our street, leaving Red Head. For years, I envisioned some wild New Year’s Eve party that must have occurred somewhere deeper in Red Head, where at the end of the night (or beginning of the morning, whatever way you want to look at it) everybody just found a couch or an area on the floor and crashed. I imagined that they were some fairly gracious hosts, but that around 12:00 the next day, the guests would have overstayed their welcome, and the hosts would begin booting the guests out, hence the stream of cars.

With the advent of FaceBook, I eventually realized this mythical NYE party was not the cause of the steady stream of cars. It was, in fact, the Polar Bear Club, which I had learned was full of crazy people so long ago in grade 6. Now, these crazy people were showing up on my news feed, and I realized that many of them were actually my friends. The Polar Bear Club (or at least this particular one, there are many) meets once a year at Mispec Beach at 12:00 pm on January 1st. The cars I saw in previous years were all of the people leaving, after the Polar Bear Dip is over (approx. 12:00:21 pm on January 1st).   

After seeing these pictures show up once a year for two or three years, I finally decided to find out what all these folks saw in such an objectively ridiculous endeavor. I convinced some friends to participate with me, and my parents to come as observers. I brought blankets, towels, a change of clothes, and goggles. Luckily my parents were able to hold all my gear for me; leaving it on the wet cold beach didn’t seem like a good idea.

There was a group of at least 300 people at the beach, with probably about ½ participating. I was amazed at all of the people I knew, and the range of the ages of the participants (from 15 to 75). If nothing else, Mispec beach on January 1st is a great place to see friends and family. (To see a drone's eye view of 2015's dip, check this out - )

Once I stripped down into my trunks, I realized that oddly enough only the soles of my feet were cold. Before I could focus on that too much, somebody started a countdown, and before I knew it the counter had reached ‘1’ and I was caught up in the mob running for the ocean. The first year was an anomaly as it was above 0 degrees. It actually felt much warmer when I got out of the water. I walked passed a few Polar Dip veterans who were proudly announcing ‘if this was your first Dip, it isn’t a real one’. I guess for some, running into the water on January 1st isn’t sufficient to make it ‘real’, it must also be sub-zero.
The 1st year crew

The next year, Sara had agreed to run in with me, and we knew my parents weren’t going to be there to hold our gear. We had to start planning a new strategy to ensure we could change into dry clothes quickly; I didn’t think we could rely on two warm January 1sts in a row. We came up with a plan to have our clothes packed in milk crates.

Every year since (this year will be number 6 for me while Sara is sitting it out as we feel it may set us off on the wrong foot with the nursing staff if I brought her into the hospital with hypothermic-induced labour) we have honed our process.

Which brings me to the practical part of this blog. If you are interested in doing the Polar Dip, which in addition to being quite the social event, exhilarating, and most importantly, a complete hang-over cure, you may want some tips in planning a successful dip:
The height in Polar Dipping fashion. 

·         Pack the night before. Nobody wakes up on January 1st willing to go to this thing if they haven’t already packed;
·         We got rid of the milk crate idea in favour of a tarp. The tarp can hold more, and you can stand on it while you are getting dressed, which is much better than standing on the sandy beach. The only issue with the tarp is that you need something to help hold it down as the beach is normally windy. Once a lot of clothes have been put on it, it is no big deal, but before that, friends standing on each corner sort of works;
·         Related to the tarp, it may be good to show up early to get a good spot on the beach. Early for this event is like 11:40;
·         I still bring the goggles and towels, but the blankets are not necessary;
·         I come with my trunks on, PJs, a hoodie, hat, mittens, and thick house coat. Not the most fashionable, but all very warm and fast to get on and off. And yes, I do take the trunks off before I put my PJs back on. I figure most people are more worried about their own situation than to spend time looking at the effect the cold has had on me;
·         We bring flip-flops for the period of time we are just waiting for the dip to start as the beach can be painfully cold on your feet;
·         We bring plastic bags to put our feet into before we put them in our boots. It makes it easier to get your boots on, it is warmer, and we don’t have to worry about sand getting into our boots; and
·         You will want a place to warm up afterwards. The heater in your car is usually good for the drive home, but after that you may want to get into a hot bath, sit in front of the fire, or get to a hot tub.
This is all very normal now. Completely normal and expected and standard. The guy on the left is known to acquire 160 proof shine, which helps with the normal-ness of everything. 

We have also developed a bit of an annual tradition around the Polar Dip which adds to the event. Our tradition is to meet friends at 10:00 at Kay’s for breakfast (the Park Plaza restaurant). The staff now remembers us each year we come. We then head out to the dip early, as it is sort of fun to get there when the beach is empty, and watch it fill up. Also, parking becomes an issue if you aren’t there a bit early.

After the insanity of the dip, we rush to my hot tub and down a bottle of wine, or rum, or beer, or a mixture thereof. It’s a bizarre little tradition, but I think that those in the merry band of participants (Sara, Alex Pesold, Carolyn Prebble, myself, and Karey Ann Daley as a ‘non-dip’ participant) have quite a bit of fun.
It's all worth it?

I’ve met a lot of people who have no interest in doing the Polar Dip, but I think that everybody who I know that does it and loves it were, at least at some point in their lives, also somebody that had no interest in trying it.

Finally, another way to look at it is that if you run into the ocean on January 1st, it can only be up hill for the rest of the year. 

Saturday, 9 May 2015

Do Not Pass Go, Do Not Collect $200.

We recently went to the states and bought 12 bottles of beer that cannot be purchased in New Brunswick.  We made the purchases knowing we would likely have to pay something at the border where we had not stayed in the US for at least 48 hours. We figured it would be an annoying amount, but manageable.
It turned out to be essentially 100% of the purchase price. After the HST, another tax on the number of ounces, and a further 84% ‘New Brunswick Liquor Corp. ("ANBL") mark-up’, we basically had to buy our beer again, just for the privilege of bringing it home.
I expected to pay the HST, and some ‘bonus’ tax for it being liquor, but I was not expecting two taxes, one being 84% - my fault – I know, I should have researched it. It was my stupidity for not looking into the situation beforehand to find out that the government was going to gouge my eyeballs out for trying to bring something home that isn’t available in New Brunswick (because they do not/will not bring it in).
I was clearly mad, but couldn’t do anything about it. It is a law, and not a price that is subject to negotiation or reason. The logic that I was advised is that ‘the ANBL typically marks up its products 84%, and it didn’t make its 84% margin on the beer I bought in Maine, so it is now. ‘
I immediately had a few issues with this logic: (1) I first thought ‘ANBL did nothing to generate this sale, why should it get a mark-up?’ – which I quickly realized was wrong – ANBL did help generate the sale in the US; by not having a good enough selection at home, I went elsewhere to purchase beer. Either way, I don’ t think ANBL earned this money;  (2) I bought the beer at a speciality shop; I did not pay anything close to wholesale prices. The 84% applies regardless of the mark-up that already exists on the purchase. If the 84% is to approximate ANBL’s mark up, they are double dipping if they charge the 84% on the retail price- I’m paying a mark-up on the mark-up.
When I thought about it just a bit more deeply, I realized the subtext – ANBL sells liquor in NB. You don’t get to bring in non-ANBL liquor without paying for it (unless you are out of the country for at least 48 hours, which I’ll get back to). It has a monopoly on liquor, and gets very jealous if you live here and go outside to purchase from somebody else - to the point that it will extract the money from you at the border. Now, I understand that one of the reasons that you pay at the border is to make buying non-local less attractive – it helps the local business person to ensure their local customers will not purchase from foreign vendors.  But ANBL has a special position. If I buy a video game in the states, I may have to pay HST on it when I get back to NB, but I don’t have to pay an 84% tax on it, which would then get distributed among the video game vendors in NB, to compensate them for their ‘lost sales’. But for liquor – they are treating it as if I stole a sale from ANBL, and they are going to make sure I don’t get away with it.
The ANBL enjoys this special position because they have a government endorsed/imposed monopoly. It is interesting how we have legislation to prevent monopolies, but when the government wants to engage in it, it is ok. We call that the Royal Prerogative.
This brings me to the ‘48 hours’ rule. When I was given the bill for having the ‘honour’ of keeping my goods as I crossed the border, my jaw went slack. We were advised that we could spend another 43 hours in the states and we wouldn’t have to pay anything to bring our beer home. Well, at least, we wouldn’t have to pay anything at the border. If we had another 43 hours to burn, and had no commitments Sunday and didn’t have to deal with work on Monday, we may have been able to swing another 43 hours. But that would also have caused us to get a hotel for 2 nights in the states, buy meals in the states, buy entertainment in the states, and likely spend more on shopping in the states (including more beer).  ALL MONEY THAT WOULD BE SPENT OUTSIDE OF CANADA. So much for shopping local, right?
For a government that lauds entrepreneurship and innovation, they are certainly behind when it comes to this industry. Craft beer and cider are big business. We have the potential to realize a tourist draw if the government was able to actually get into the 20th century and recognize that craft beer generates big discretionary spending from those who don’t want to buy a case of 30 watered down suds. But, I digress.
What the heck is this policy all about? I know it is older than I am, but it seems just another fairly arbitrary way for the government to make a cash grab that doesn’t seem to have a whole lot of thought behind it.
We all know that ANBL is losing sales. A Nova Scotia Liquor Commission employee actually joked with me and said “ANBL is the only Canadian Liquor Commission that doesn’t know how to make money” (as an aside, the border guard told us “Even NB criminals don’t know how to make money”). Instead of putting more of a stranglehold on the industry, how about making it an industry friendly environment; one in which people aren’t so much FORCED to deal with you, but instead WANT to deal with you. How about them putting their money where their mouth is and helping the craft brew industry flourish in this province?
In NB, we are no strangers to frustrating fiscal policies. This is merely another one that I want to add to the pile. If there was a logical, understandable, overarching taxation policy that took into account the many ways the government has its hands in our pockets, we may be willing to go along with it. As it is, the government seems to be content to cannibalize its own citizen’s resources while not establishing to us that our tax dollars are being spent efficiently.
At least we are getting a bunch of new highways.

Monday, 13 October 2014

The Controversial Christian Law School

Trinity Western University is in the middle of a growing controversy, and has been for a number of months. Trinity is a private Christian liberal arts university that was established in 1962, offering degrees in various disciplines, including business, arts, education, nursing, and sciences. While Trinity identifies as a Christian institution, it is governed independently from any church or other religious organization.

The issue that is generating so much attention is two-fold. One issue is that it now wishes to offer degrees in Law, and the other issue is its ‘Community Covenant Agreement’, which (among other things) requires that faculty and students refrain from having sex outside of a heterosexual marriage.

There are a number of aspects of this issue that interest me since I first heard about it almost two years ago. Given the emotionally charged and sensitive nature of this topic, and the nature of on-line debates in general (which I want to do a separate blog post on sometime in the future, as I believe that on-line debates are rife with problems, including frequent intentional mischaracterization of another person’s argument, cherry picking points out of context, glib 2 line responses that are designed to inflame more than debate, etc.) Where I think Trinity Law students should be allowed to practice law in New Brunswick, is important to briefly state my own personal view on Trinity:

Trinity is not a university that I would consider attending. I wanted to go to a university that had as its primary objective teaching students the discipline in which they are enrolled. Trinity seems to have a dual purpose; to teach university courses and to teach its view of Christianity. I think it would make sense to go there if one wished to take a theology course from them (and you were ok with signing their Community Covenant Agreement), but for any other course I think it makes more sense to go to a university that has learning the course material as its primary focus. Secondly, I wouldn’t like to be subject to what I see as an invasive, controlling, discriminatory, big-brother-like set of standards. But that’s me. If somebody else wants to go Trinity, I might not understand why, but I don’t take it as a reason to exclude them from participating in certain aspects of society.

What interests me most about the Trinity controversy is the reaction it is getting from various provincial law societies, and given my location, the Law Society of New Brunswick (LSNB) in particular. On June 27, 2014, the Law Society of New Brunswick’s Council passed a motion to accredit Trinity’s proposed law program. Such approval was based on a review of the proposed curriculum, and the conclusion that such curriculum met with the required standards for accreditation. The approval caused a backlash among many New Brunswick lawyers, resulting in a special meeting of the members of the LSNB being held on September 13, 2014, in which a non-binding resolution was passed (173-30) to reverse the decision made by the LSNB Council. Whether or not the LSNB will ratify the members’ resolution is still up in the air.

There are a number of arguments against approving Trinity as an accredited law school, and without an attempt to do a disservice to such arguments by summarizing them briefly, they generally relate to the concern that students that go to a discriminatory school could undermine constitutional rights, particularly if such students go on to hold positions of power. There is also an argument that a school that holds such values cannot properly teach law students the values/ethics/constitutional law that are required in a lawyer. There is a third argument to the effect that 'how can a law school teach that people are equal regardless of their sexual orientation if they don't let faculty or students have sex outside of a heterosexual marriage?' (As a lawyer I would frequently deal with laws I didn't agree with - a lawyer doesn't need to 'agree' with a law to be able to operate within the law - I would be surprised if there were many Canadian lawyers out there who agree with every aspect of Canadian federal and provincial law).

I think that many arguments on either side of the debate are poorly formed. They are designed to appeal to the emptions of the pro-Trinity or anti-Trinity groups, without really grappling with the underlying issue, which is ‘How does the Constitution apply to this issue?’ You are free to have (and should have) a personal view on this subject, but arguing from just your personal view does not form a good basis for a legal debate.

I think it is best to start with the section of the Charter of Rights and Freedoms that is generally used in such arguments:

 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

I note that ‘sexual orientation’ is not protection that is included in the text of this section of the Charter, but rather it was deemed to be implicitly included in 15(1) via a 1995 decision of the Supreme Court of Canada. In layman’s terms this means that, while it is not explicitly stated in our constitution, the protections provided by section 15(1) have been extended by case law to include sexual orientation since 1995. This isn’t to cast doubt on the pedigree of sexual orientation as a protected right, but as a technical point, I always roll my eyes when somebody starts talking about how it’s illegal to discriminate based  sexual orientation, because ‘it’s in the Constitution’. Those protections do not exist in the text of the Charter, but rather have been deemed to have been included through case law. From a legal perspective, it doesn’t make any difference, but it often clues me into a person’s awareness of the subject matter.  As an aside, protection from sexual orientation based discrimination is included in many provincial Human Rights Codes, but given the difficulty in making a Constitutional Amendment, it is not yet included in the text of the Charter.

Based on the Charter, as modified by case law, I don’t think there is much of an argument that Trinity is discriminating. Trinity is ok with sex in a heterosexual marriage, but if you want to have sex in a homosexual marriage, you can’t be a member of their faculty or a student.  These are fairly straight forward facts that lead one to conclude Trinity is discriminating. Also, don’t forget that Trinity is discriminating based on religion too – one must subscribe to various Christian beliefs to go to Trinity – they don’t let in Muslims, Hindus, Buddhists, Mormons, or certain other Christians (to name a few). They also wouldn’t let in Atheists or Agnostics, but I don’t know if you could call that discrimination based on religion; maybe discrimination based on a lack thereof.  Either way, that’s a pile of discrimination right there, and likely prevents a lot more people from participating in Trinity than their sexual morality code. Their sexual morality code doesn’t even strictly forbid homosexuals, it just forbids them to have sex while attending or being employed. While that may be a cute distinction (and is not intended to inflame, rather to illustrate a point), I think it is interesting that nobody is up in arms over the religious based discrimination, which arguably excludes more people, and is an outright prohibition, where Trinity’s sexual orientation based discrimination only applies to sexually active homosexuals (and heterosexuals who aren’t married).

Anyway, the law doesn’t stop there - n

 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

15 (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

As an easy example, these sections allow me to discriminate on the basis of mental or physical disability if I refuse to hire a person with untreatable narcolepsy to operate a cab. Refusing to hire somebody to operate a cab based on such disability would be discriminatory, but I feel fairly certain that I could ‘demonstrably justify’ my discrimination in that case.  Arguments based on this section can become very nuanced and technical when the case isn’t so clear, but suffice to say that the protection from discrimination is not absolute.

Take some other examples – all female gyms are discriminatory. They discriminate based on sex, and I am prevented from becoming a member or be employed by one in a role where I would be on the gym floor. Notwithstanding the discrimination, all female gyms are allowed. The drinking age, age of majority, age when you can drive, age when you can consent to sex, age when you can apply for OAS – these all discriminate based on age, but I think the vast majority of people accept these instances of discrimination as positive things. Sometimes it makes sense to discriminate.  

Another thing one should consider when debating how the Charter would apply to a situation is Section 2:

 Everyone has the following fundamental freedoms:
  (a) freedom of conscience and religion;
   (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
 (d) freedom of association.

In the case of Trinity, it is a private school that is founded on certain religious principles. One of these principles is their sexual morality code, which presumably they consider to be a critical component of their religion. If they say that their discrimination based on sexual orientation is fundamental to the operation of their religion-based university, then there are two protected grounds that are in conflict with one another – freedom to practice your religion and to associate with others of your religion, and the protection that you can’t refuse to employ somebody based on their sexual orientation. It is up to the courts to determine an appropriate balance between these two rights, based on the text of the Charter, and the Supreme Court of Canada’s interpretations of the Charter. One does not automatically trump the other; each right is ‘equal’ under the law.

This comes to one of my major problems with the members of the NBLS voting on accreditation. Firstly, it is the Supreme Court of Canada that is the ‘guardian of the Constitution’ and ultimately responsible for its interpretation. This is not the job of lawyers or law societies to conclude what is constitutional or what isn’t before the Supreme Court of Canada so determines. By a law society saying ‘we are in the right to discriminate against Trinity students’, they are usurping the role of the Supreme Court.

Now, as a matter of procedure, for the Supreme Court to decide something they have to have the issue before them. They are not in the business of proactively commenting on legal issues without the matter getting to them through the proper channels.  By not approving Trinity as an accredited law school, the law societies are inviting lawsuits (which in some provinces are already underway). If this vote is a method to get this matter before the Supreme Court, than that’s fine – but at least publically acknowledge that that’s the purpose.

The other issue I have with a vote is that the very nature of a vote is that majority rules. Just look at section 15(1) - race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (and now sexual orientation). Does this speak to you of ‘majority rules’? Or does it speak to you of ‘protection from the majority’? I don’t think that the Charter is an appropriate venue for arguments based on ‘this is what the majority would like to see happen’. Just because 173 of 203 New Brunswick lawyers don’t want to see Trinity accredited does not make the vote the correct answer.

One commentator that I read had a very interesting take on this aspect. She argued that the more people that vote against Trinity, the stronger argument they have under 15(2) of the Charter (above), as in they are a disadvantaged group that deserves special protection.

If people can show that they are now being disadvantaged because of their religion, they can establish an otherwise discriminatory program or activity to ameliorate such disadvantage. The more people that pile on against, the more disadvantaged Trinity and their students appear.

Another issue I have is the fear that students from Trinity will not have the constitutional, values, or ethics training that would be required of a lawyer. The Charter of Rights and Freedoms was created in 1982. Protection against discrimination based on sexual orientation became part of that law in 1995. That means that anybody that graduated law school before 1982 did not learn about the Charter in law school. Anybody who graduated law school before 1995 did not learn in law school that sexual orientation was a protected grounds. Is there a concern that these people aren’t fit to practice law? If this is such a paramount issue, I would suggest a failure to learn the fundamentals of these laws is more of a concern than what side of the fence you sit on in your personal life. In addition, is not as if traditional law schools are guaranteed to graduate people who are non-sexist, non-racist, and non-homophobic.

I also think the arguments to the effect that graduates of Trinity will be homophobic commit a number of gross logical fallacies. Put it another way, it is a wild stereotype to assume that every student that graduates from Trinity will be homophobic. You have to take each person as you find them, going to Trinity doesn’t make you a homophobe, and not going to Trinity doesn’t ensure you won’t be a homophobe. Maybe people do go to Trinity because they are homophobic. Maybe they go there because their parents wanted them to. Maybe they go because they got a scholarship. Maybe the go because it is close to home. Maybe they don’t care if they have to sign the ‘Community Covenant Agreement’. Maybe they didn’t get any other acceptance letters. I am not so bold as to conclude that just because somebody signs a document that says they aren’t going to have sex outside of a heterosexual marriage that they are a homophobe. It likely makes them somebody who is heterosexual and wants to save themselves for marriage, homosexual but celibate, asexual, or maybe just somebody who wants to go to university and will sign anything to get in. 

If the problem is with Trinity, then go after Trinity, don’t say ‘we don’t like what you stand for Trinity, so we are going to take it out on your students and not let them practice law in our Province’. By not allowing Trinity students to practice law, we are (a) attributing a certain set of values to a group of individuals with knowing little else about them as individuals other than that they all signed the same document and (b) launching a collateral attack on the real issue – that Trinity operates in a way that a number of people find distasteful.

I’m very much a live and let live sort of person. My personal view is that if you want to go to Trinity, fine. I don’t understand it, but fine. If you want to go to Trinity and treat homosexuals as second class citizens, that’s not fine. If you don’t want to sign the ‘Community Covenant Agreement’, then don’t go to Trinity. There are lots of other options for higher education than going to a private Christian school.

Still on my personal views – I don’t think you can force somebody to adhere to your way of thinking. Preventing Trinity students from practicing law in New Brunswick isn’t likely to get Trinity to recant its ways and change its policies. If anything it will galvanize them and make them more positional. I think people change when they understand there is a better way. Let them join in, let them see how the rest of the legal community operates; let them have the chance to re-evaluate their own views.

If it is the wish of the legal community to denounce Trinity for operating in a way many find distasteful, then denounce away. I think that their policy makes them a bit of a joke – is Trinity truly a place of higher learning, or is it a glorified Bible School? But if there is an attack to be made, attack the proper entity – the school. If a law student graduates from a degree that meets the standards set by the law society, don’t deny the student the ability to practice law as a collateral attack against Trinity.  

I have read a number of commentators that say things such as ‘I’m sick and tired of seeing religious groups hiding behind their freedom of religion protections’. Don’t forget that the very law that provides freedom of religion is the one that protects people from the aforementioned grounds of discrimination. You can’t cherry pick the Constitution – and I would suggest it is dangerous to cherry pick the Constitution – you don’t want to set a precedence where it is ok to ignore portions of the Constitution; it is either all important or none of it is. Just because a person doesn’t like the religious protections provided under the Charter, it doesn’t make them less real, less worthy, or less important to other people.
Another thing I read from time to time is that Trinity, and schools like it, are‘clearly’ acting against the Constitution. If it was clear, I suggest that they wouldn’t be doing it, because the authorities would have stepped in and stopped it already. When somebody says this is a clear issue, they are being disingenuous. It isn’t clear until there is a Supreme Court decision on the matter (and given some decisions, maybe not even then!).

This is an emotional issue that cannot be decided emotionally. And while you are free to have a view on what you would like to see happen, this issue involves a balancing of Constitutional rights – something that is very nuanced, delicate, complicated, and powerful.

Saturday, 9 August 2014

10,000 Liters - A letter to Alcool New Brunswick Liquor

My wife and I have become craft beer fans over the last two or three years. A hobby of ours is to go to different jurisdictions and try the selection that is not available in New Brunswick. One element of our travels that we really enjoy is taking brewery tours. Each brewery has its own unique process, the staff are always enthusiastic, and there are usually samples available of products that are not widely available.

The location of interesting breweries almost always forms part of our vacation planning, and we have met a number of other people who are similar in that regard. Given the level of interest I have witnessed in places like Nova Scotia, Maine, and BC, I believe that a thriving craft beer industry in the Province will create both jobs and will create interest in NB from a tourism perspective.

During our travels, we have noticed that for some reason New Brunswick seems to lag behind in the number of craft brewers when compared to Maine and Nova Scotia. Having had occasion to assist clients in obtaining liquor licenses in my previous career, I assumed that the lack of NB producers was related to the red-tape rigmarole, and was not due to a lack of entrepreneurial spirit.

After having the opportunity to discuss this with a number of NB craft brewers and winemakers, it appears that my assumption is fairly accurate, at least from their perspective. A common complaint is that the NB liquor laws are very archaic and have been updated in a patchwork series of amendments; there has not been a wholesale modernization of the legislation in decades.

Notwithstanding the foregoing, I was quite surprised and happy to see the number of NB craft producers represented at this year’s Brewers Bash held in Fredericton. Based on the previous number of 7 craft producers I had read about a few months earlier, it was great to see that this number was already up to at least 10. I thought that maybe the regulatory system had been changed to help promote new business.

Then I started hearing about a new rule which would require new producers to sell 10,000 liters of product through NB liquor stores before they can sell from their own location. The first few people who told me about this law were fairly confused. They thought that where the products they are selling are already being taxed under NB liquor laws, and that their products had to be listed with ANBL, that they were in effect selling through ANBL as it was. It is now clear that this is not the case, and that the 10,000 liters must be physically sold through ANBL stores. Current producers, however, are grandfathered.

I had hoped to be able to read the text of this new rule before writing this letter, but I have not been able to find it. I have talked with several producers, and they advised that I will not likely be able to find it. If it is available, I would like to know where to find it (and would stand corrected), but as it is I find it troubling that it is not easily obtainable. People should be easily able to find the rules to which they will be subject. Notwithstanding, I have discussed this rule with enough people 'in the know', and read enough articles on it, I think I can speak to it with some level of confidence that I understand the subject matter. 

There are a few problems I have with this requirement. Firstly, it appears to be completely arbitrary. How was 10,000 liters chosen? Why not 6,000, or 11,500, or 8,432? Also, how was the date upon which this new rule would come into force chosen? Was there an industry consultation performed or market analysis conducted that indicated the ideal date upon which to impose this new requirement on future producers? Are some brewers who are about to come ‘on-line’ exempted? If so are such exemptions given based on defined criteria or are they just to placate those producers who would have otherwise had the rug pulled from under them? My concern is that this new rule was not created or imposed in a rational way.

Another problem I have with this requirement is that it appears to be anti-business. Craft beer producers generally start as hobby producers, and slowly build up their capacity until they have enough production to sell commercially. Requiring that craft brewers sell a certain amount through ANBL before they can even sell from their own location results in a significant increase to their costs of doing business. Either they will have to arrange for bottling/canning of their products, or sell through ANBL’s upcoming growler program to earn the right to sell directly to their customers. 

Neither of these requirements is that attractive for a start-up company. They represent an increased barrier of entry into an industry that is already fairly capital-intensive. Further, part of the entire craft beer experience is going to the brewer’s location. I cannot imagine that a new craft producer would be able to sell as much through a government owned store than through their own storefront. It adds complications, when what you need to spur on new business is to remove complications. If this policy is good for small business, as it claims to be, producers would already be voluntarily selling through ANBL stores; they would not be opposing it.

This new rule has all the trappings of a simple cash grab. While I have been very happy with NB Liquor in its increasing willingness to bring in new products, and the friendly and knowledgeable front-line staff, I believe the administration of ANBL is relying on its ability to regulate to increase revenue.

If ANBL is able to increase its revenue through increased regulation, it is simply an expropriation of profits. It is a method of 'revenue generation' that lacks the imagination of a person who has an entrepreneurial spirit, but is rather the product of an entity that relies on using the rule of law to justify its own existence.

Most are aware that governments generate revenues from the taxation of vice (i.e. gambling, smoking, and alcohol); and then ironically spend a lot of money on programs to mitigate the damages of such vice, but that is a whole other topic. Taxing and controlling alcohol is one thing, and an important part of ANBL’s mandate. Placing barriers to entry and making arbitrary rules for new industry participants should not be ANBL’s business. 

Finally, I think that there should have some level of trepidation to even suggest this new rule, let alone implement it. There seems to be something wrong with a state imposed requirement that forces producers to sell their products to a state run organization. It is a rule that has shades of very left leaning government, nationalization of property and such. Now if you are into that sort of thing, great, but maybe it isn't appropriate given that New Brunswick people elected a conservative government. 

Sunday, 26 January 2014

I'm Not Going to Lie to You

I have had a lot of friends talk to me about lying lately. The discussion usually seems to take the structure that lies are bad and the truth is good. For them, it seems to be a fairly cut and dry issue, where even ‘white’ lies are considered an evil.

Not that I intend to extol the virtue of lies, but I don’t see it as such the black and white issue some others appear to see it as. Let me explain.

When trying to find a definition of the term ‘lie’, I found that there are some significant inconstancies in how a lie is defined. Some definitions are that it is to deliberately say something that is not true. Some definitions indicate it is to say something incorrect that the speaker may or may not think is true. Other definitions include a requirement that the speaker intends to deceive.   

If the definition of a lie is simply that it is an untrue statement, then lying cannot always be bad. If I say ‘I watched movies all weekend’, I have likely lied. I may have watched a lot of movies over the weekend, but it is doubtful that my entire weekend was spent watching movies. In this case I would be relying on our common understanding of the English language, and expect that the listener would interpret my statement to mean that I watched a lot of movies, not that I am trying to somehow convince them that I didn’t move my eyes away from a screen playing movies for the entire weekend.

This same concept applies for statements like ‘I’m so hungry I could eat a horse’ ‘I was so embarrassed I almost died’ and ‘that person is full of shit’.

Sometimes inaccurate statements are used for humour. In the case of dry humour, the speaker usually won’t even let on they are kidding. In these cases, the speaker is saying something that is incorrect, with the expectation that nobody will take it seriously, but rather find it funny.  Grade 4 was the hardest 7 years of my life. (disclaimer – I do not think that is very funny, but I’ve heard it used in the context of a joke and it reflects my point).

Other inaccurate statements are not quite as innocent as the ones above. A little further along the spectrum of lying involves lies while telling stories. Exaggeration can often play a part in storytelling. Exaggeration may be used innocently enough, i.e., trying to make a story more interesting.  
Sometimes the person exaggerating isn’t even aware that they are exaggerating. Studies in psychology have determined that the more a person recounts a story, their memory becomes more the recounting of the story than the actual facts. As well, Dan Ariely, PHD in Psychology and Economics, as well as New York Time’s best-selling author, has done numerous studies which demonstrate that a significantly large percent of the population can rationalize cheating by a small amount (the ‘fudge factor’) as not being morally culpable. It is actually very few people who feel entitled lie or cheat on a large degree. However, his research indicates that having a self-interest in something can fundamentally change a person’s views and interpretations and creates ingrained and subconscious biases, which can impact our behaviour without us even realizing it. While none of that makes exaggerating 'right', it does indicate that many people engage in it without much thought to moral considerations, or are even aware of it.

Exaggeration can also be used maliciously, such as in the case where it is intended to make somebody look bad. Not all exaggeration is bad, though. For example, Toastmasters occasionally has a ‘Tall Tales’ contest where the whole point is to make up a crazy story. The interesting thing here is that the person telling the story is exaggerating in much the same way (if not more so) than they would if telling a story outside of such a contest, but it is the expectation of the audience that, at least in my mind, changes the moral considerations of exaggerating.  

You can even ask a question that is a lie. ‘Wasn’t that party fantastic?’ could be a very misleading question if I hated the party but asked the question enthusiastically as opposed to with a sarcastic tone. A question that is both leading and misleading at the same time – how wonderful! And a question that can take on a different meaning depending on the tone I use. The line between truth and untruth can become exceedingly fine.

I have told stories before where I have lied just to avoid getting into what I consider to be needless detail. I seem to get interrupted a lot when I’m speaking  (maybe it happens to everybody, but I feel I get more than my fair share of interruptions) therefore if I do have a chance to say something, I will generally try to say it as quickly as possible. In cases where I can see a way to avoid getting bogged down in giving a pile of backstory by mincing the facts or glossing over some events to make my point, I will. It isn’t intended to manipulate a person’s understanding of the story, it is intended to avoid taking up too much time. I have been ‘caught’ doing this before and end up turning a 1 minute point into a 7 minute boring story, just to regain the person’s ‘lost trust’.  

Then there are cases where I may lie because I don’t think the person I am talking to has a right to know the truth. Let’s say that I had to leave work early because I had a doctor’s appointment to go over the results of a biopsy of a tumor removed from my lung. There is a good chance that a nosey co-worker may ask “Where are you going?” I could easily say “I have an out of office appointment” – which isn’t a lie, it is just vague. If they were totally ignorant to the unwritten rules of social interaction and pressed me for details however (we all know these sorts of people), I would have no problems with telling them a lie to avoid telling them I am following up on a potential cancer scare. In these sorts of situations just saying ‘it is none of your business’ usually isn’t sufficient as it invites speculation. I do not have a problem with telling a lie to protect a secret from somebody who doesn’t have a right to know the secret.

This view of mine does come with a problem. How do you come to a good determination of who has a right to know the secret and who doesn’t? In the case of cancer scare, there is a good argument to be made that your spouse has a right to know (and if the answer is that the spouse doesn’t have a right to know, maybe you need to consider if your relationship is working). If the scare has inspired you to consider buying life insurance, the life insurance company has a right to know. You could, though, easily make an argument that nobody else has a right to know, but it is all very case specific.

I have been ‘caught’ in these sorts of lies before, and have simply said to the person that I lied because I don’t think they have a right to know certain areas of my life. They are then in a position to decide if they still want to associate with me given that there are certain things I don’t want to tell them, but that is up to them; they at least know the truth of where they stand. Generally in these situations, there is an implied aspect of the relationship that would indicate full disclosure isn’t on the table (i.e., that we aren’t in a close relationship). In the case where you want to keep certain things private from another person, and they have a good reason to expect your relationship is such that thinks won’t be kept private, it is not sufficient to wait until you are caught in a lie to tell them you don’t think they have a right to know. In those situations, it is more appropriate to tell them, even in a general way, that there are things you are holding back – if they aren’t willing to accept that, then the relationship won’t work or you will have to open up more.

White lies are interesting beasts. I view a white lie as an untruth that is said with the intent to make the listener feel better. White lies can be used very maliciously. If you see a problem with the way a co-worker is doing their work, but you constantly tell them they are doing a great job, the ‘white lie’ is preventing them from improving. Other times, there may not be as much at stake, and you are simply saying the white lie to avoid an awkward conversation. ‘Do you like my hat?’ – you may think the hat looks silly, but you know it is a matter of personal preference and just because you don’t like it doesn’t mean that other people won’t. You may respond with some non-committal positive sounding answer just to avoid getting into a conversation about the pros and cons of the hat – and the stakes involved are that the person who asked the question may end up walking around wearing a hat that you find unflattering.  Those aren’t big enough stakes for me to get worked up over giving somebody a false impression of my subjective thoughts on their wardrobe – especially considering that I don’t think I am very good at determining what looks good or bad clothing wise.  

If, however, I was a wedding photographer and I thought that somebody’s hat was going to detract from a photo, I may tell them there is an issue with the hat. Here the stakes are different. I am being paid to take good photos of a wedding, my pay and reputation are banking on it – if somebody opens the door and asks me about what they are wearing, I am in a position where my opinion is potentially very relevant.

Memory can also play a major role in the subject of lies. I can tell you something that is wrong, but, based on my faulty memory, I told you what I thought is true. That isn’t a lie, but somebody may think it is if they don’t believe that your memory is inaccurate. Or you could say something based on a memory that you know has faded. If you don’t qualify your statement with the fact that your memory is hazy, that may be a lie; you aren’t sure yourself of the truth of what you are saying. Or you may have no knowledge of something at all, but make a statement on what you think could be the truth. In that case the lie is that you are passing something you aren’t sure about off as if you know.  

Then there are the outright classic lies. People suspect that you have done something wrong and you simply deny it or make up a story to cover your tracks. Or you make up a story to put yourself in an underserved positive light, or another person in a bad light. I don’t see much grey area with these sorts of lies. If it is these sorts of lies we are talking about, I don’t mind taking a black and white view.

All of the above examples involve something that is said. A whole other world of lies opens up when you start considering what isn’t said - lies by omission.

Lies by omission are much more nuanced. When does my failure to tell you something become a lie? I certainly am not expected to tell people everything. Most people don’t want to know everything. For one thing, it would take up too much time. For me to give somebody ‘full disclosure’ in the absolute meaning of the word, I would have to tell them absolutely everything I could think of – that may take a while. Also, there are some things people just don’t like to hear. I went to the bathroom and my bowel movement was a lot messier than I anticipated so I took a shower to make sure I totally cleaned my anal region, is, for example, something that people may not want to hear. If I don’t tell people it, it is an omission, but it isn’t likely to be viewed as a lie by omission.      

If I don’t have a problem with alcohol and I go to a bar with some coworkers and have a beer, it may not be a lie of omission if I don’t tell my wife; it was simply an event that happened with no real significance. Take the example though where I am married and I am an alcoholic who has been sober for 10 years. My relationship with my wife was bad for the first few years of the marriage when I was drinking, but it has been relatively good for the past 10 years. I go to the bar for a drink – it is likely a lie by omission if I don’t tell my spouse. I know she has an expectation that I am going to remain sober, and me going to a bar for a drink is likely going to be something that concerns her. If I just hide behind the excuse ‘she didn’t ask me if I went to the bar, so I didn’t tell her’, I am making a mockery of our entire system of interaction.  We generally know what things are important to the people in our life. If the onus was on the other person to ask the right questions, every day we would be met with a checklist of questions we would have to answer ‘Did you steal from your employer today?’, ‘Did you cheat on your wife today?’, ‘Did you take crack today?’ etc.

Another lie of omission can occur when you have told the truth. I watched a stupid movie last night (Bonfire of the Vanities) – near the end of the movie there was a court scene. The accused had illegally obtained a recording that contained a conversation that would indicate he was innocent – but, because it was illegally obtained it wasn’t appropriate to include it in evidence. Regardless of the legalities he played the tape during the trial, and the judge asked the accused if it was a tape that he recorded himself (which would have made it admissible evidence). The accused told the judge that it was a recording that he made on his own tape – which set him free. What he had done was played the illegal tape and recorded it on his own second tape. So yes, what he said was strictly true, but the way the question was framed and answered allowed him to avoid dealing with a very material consideration. A lot of people are very adept at using the truth in highly misleading ways.

I know I haven't covered all of the types of lies out there (such as lying to oneself - which is really out of the scope of this blog), but I have covered the major ones that I can recall encountering. How I view it is that a lie and an untruth are different things. There are several factors that make a lie a lie. It can either be an untruth or an omission. There needs to be an intent on the part of the person speaking to deceive (or not speaking in the case of an omission). That intent requires that the ‘liar’ have a good knowledge of how what they say (or omit to say) will be interpreted by their audience. Then, for a lie to be morally problematic, there also needs to be some form of relationship wherein the audience deserves to know the truth.

Generally, any person, regardless of your connection to them, rightly expects to hear the truth. Just because I don’t really know somebody doesn’t mean I shouldn’t strive to be truthful with them. For me it is when a genuine secret is at risk of being compromised to a person that doesn’t have a right to know that I don’t see a problem with misdirection. And a genuine secret, in my books, doesn’t include a lie that is intended to protect you from the consequences of your actions (‘I didn’t rob that store!’), but rather ‘I have bona-fide personal and non-malicious reasons to keep certain things out of the view of the public’. Too look at it from another angle, not every question asked by every person is one that deserves an answer. In some cases one can easily infer an answer from silence or a refusal to answer.
As I wrote this I realized that lying is even more complicated than I originally thought. There are a lot of elements to it, and a lot of angles you have to look at to really judge one. Sometimes it is even hard to determine if an untruth is even a lie. I think it is safe to say that generally they are a bad thing, but I don't think it is appropriate to say they are always bad.