Friday, 13 March 2015



The thing about 21st century totalitarianism is that it seems so nice at first appearance.  Like Codes of Conduct.   Shouldn’t codes of conduct be welcome.  Isn’t it a social good to encourage people to be polite to one another?

Codes of conduct have been notoriously imposed on many U.S. campuses.  But free speech limiting, democracy restricting codes are not limited to universities.   For example they are being widely adapted by municipal governments in Canada.  This is particularly true in Ontario, which in many ways is Canada’s  leader in “soft authoritarianism”. Codes of conduct have been popping up here and there all over the province.  Missisauga, is a sprawling suburban town outside of Toronto which was famous for its (now retired) 93 year old mayor, Hazel McCallion.  It also has a very extensive Code of Conduct governing its elected Council.  It is appropriately divided into rules - yes, a list of rules just like the Councillors would have been subjected to forty years earlier in high school.

Rule No. 10 of the its Code of Conduct reads “members of Council will accurately communicate the decisions of Mississauga City Council, even if they disagree with the majority decision of Council, and by doing so affirm the respect for and integrity in the decision-making processes of Council.”  It is difficult to imagine a more blatant way to chill opposition to Council decisions.  A critical Councillor will invariably be tagged with not accurately “communicating the decisions”.  Why should a Councillor be forced to affirm respect for and integrity of the decision-making process of Council when he or she disagree with that process and the decisions resulting from the process.  

The commentary attached to Rule No. 10 makes it even worse.  It says  “A Member should refrain from making disparaging comments about other members of Council or about councils, processes and decisions.  In other words, a Councillor cannot criticize Council decisions.  Missisauga does not tolerate opposition.  Goodbye democracy, Mississauga.

Rule No. 11 of the Missisauga Code keeps up the assault on political opposition when it says that Members “shall encourage public respect for the city and its bylaws”.  Why? -  if a Councillor disagrees with the bylaws and does not respect the type of decision-making being made in the City? This Rule goes beyond telling a Councillor that he or she should not encourage citizens to violate a bylaw.  In compelling a Councillor to be a cheerleader for a bylaw with which he or she disagrees, it is totally inappropriate in a democratic society.

Rule No. 11 also says “Members shall conduct themselves with decorum at all times.”  Imposing such a requirement on a Councillor also has no basis in a democratic society.  A Council is a political body and an elected member in a democratic society has every right to “rant and rave” at political meetings in the community and sometimes even to abandon “decorum” at a Council meeting or elsewhere.  

Rule No. 13 reads, “Members shall be respectful of the role of staff to advise based on political neutrality and objectivity and without undue influence from any individual Member or faction of the Council.”  This rule effectively shields municipal management from criticism from Councillors.  It is also, of course, ridiculous to claim that staff advice is based on “political neutrality and objectivity”. The import of such a statement is that staff advice is pure and above reproach.  A Councillor is essentially disallowed from stating that staff advice is anything other than politically neutral or objective.  Subrule 13(4) includes the further chilling provision “all members shall show respect for the professional capacities of the staff of the City.”  In other words, don’t disagree with what we say because we are the professionals and you councillors are the know-nothing amateurs. 

The Town Council in Carleton Place employs a cop to ensure that councillors do not get out of hand. The deputy mayor, Ed Sonnenburg, was reprimanded for a series of e-mails that used “offensive” language in a message to a resident and others that criticized the town’s chief administrative officer, Paul Knowles.  The town’s integrity commissioner, Robert Swayze, a lawyer in Caledon, Ont who at the time was the integrity commissioner for nine different Ontario municipalities, suspended Sonnenburg’s pay for four weeks which was a penalty amounting to about $1,700.  Swayze cited a couple of examples of unacceptable behaviors: the Councillor sent e-mails about changes in a development plan discussed at meeting he apparently missed, only to learn the news from a ratepayer: The e-mail: “But then again, council has been proven over and over again to be powerless” ... and “For Paul (the CAO) once again a ratepayer is providing information to a councillor.” Or another e-mail about a capital project in town: “Who decided to build what on whose authority --- or is it just the CAO using his discretion again?” Council, it turned out, had approved the very work.

The Carleton Place Code of Conduct contains the following: “Members of council....shall treat every person including other Members of Council, corporate employees...and the public, with dignity, understanding and respect for the right to equality and the right to an environment that is safe and free from harassment and discrimination.” The writer of an article in the Ottawa Citizen concerning the Councillor’s problems made the following comment: “On the one hand, especially among elected officials, is scrutiny and criticism of each other not just part of having a healthy democracy? It’s not kindergarten. Look at that band of partisan banshees up on Parliament Hill. One wonders, too, whether these limits on free expression would even stand up in court.  It is troubling, too, that the integrity commissioner has been delegated to decide what is and isn’t contrary to council’s code of conduct, which is written in that “everybody play nice” kind of language.”

It is troubling that an unelected official can exercise this kind of authority over an elected councillor. Councillor Sonnenburg was essentially reduced to a civil servant by a non-elected “Integrity Commissioner”.  It doesn’t matter if the councillor’s comments were accurate or inaccurate - it is incompatible with democracy that he can be punished for making these kinds of comments.

Port Hope (Ontario, of course) exemplifies everything that is perversely undemocratic about municipal codes of conduct.  Under the heading “What are the Responsibilities of Council Members?”  one finds this statement “Political Activity - Members of Council are to be allowed as great a measure of political rights as can be reconciled with the need to ensure the fact and appearance of impartiality, in the performance of their duties with the Municipality as Members of Council. The point at which any appropriate balance can be struck in any particular case depends primarily on the nature and level of the Council Member's responsibilities.”  This statement basically says that the political freedom of a councillor is something that we will try to allow but don’t count on it.  The drafter of this document suffers from democracy impairment - an elected councillor is a politician and as such it is his or her role to express their opinions and to represent the views of their constituents.  He or she is not “allowed” political rights.  Political rights are fundamental to being a democratically elected representative. 

Even more outrageous is Port Hope’s provision on Public Comment: “In accordance with the Municipality's Communications Policy, By-law Number 115/2007 every member of Council shall display the reserve inherent in his/her position with the Municipality when publicly expressing his/her personal opinions on matters of political controversy or on existing or proposed municipal policy or administration. This policy is not intended to restrict the legitimate public comment of spokespersons of Council, nor the public comment of Council Members on matters of essentially a personal interest related to his/her position as a Council Member with the Municipality of Port Hope.”

A councillor is not required to display any “reserve” when it comes to publicly expressing his/her personal opinions on matters of political controversy or an existing or proposed municipal policy or administration.  To quote from a letter written by the B.C. Civil Liberties Association when the City of Victoria was considering a similar conduct provision “Political debate, by its very nature, can involve heated discussions on matters of great contention.  It can involve polemics and diatribes.  This may, again by its nature, result in people being offended.  It may involve people having their motives questioned and that is, as we would expect in any truly open and democratic process.  The accountability of Councillors for their conduct in these regards is to electors.”  

Michael Vonn of the B.C.C.L.A. made a particularly valid point about codes of conduct that prohibit councillors from openly criticizing staff.  She said "The downside if you have a code of conduct that includes the requirement that you respect or consider the self-esteem of staff and colleagues, you really are in an area of chilling appropriate political speech.  Obviously in the context of debate, people are going to disagree. You have to allow for that disagreement without the chill of having somebody being brought up on a conduct matter."

What we see with codes of conduct is the downgrading of municipal councils to the role of an advisory board to the unelected bureaucrats. Is it the level of democracy closest to the people or it is it the level of bureaucracy with the closest control over the people?  One has to think the latter is more accurate.

Monday, 9 March 2015


Online registries are flourishing in the U.S.  Politicians just can not resist them.  Identify a bad set of behaviors and then legislate an online registry naming the miscreants that have engaged in that kind of behavior.


The movement to create online registries - like compulsory reporting laws - were initially motivated by crimes against children.  Sex registries in the U.S. began in California in 1947 but were not used in a major way until 1994 with passage of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act - which required states to form a database of offenders convicted of sexually violent offenses or offenses against children. In 1996 following the abduction and murder of seven-year-old Megan Kankain New Jersey, the law  (Megan’s Law) was amended to require law enforcement to make registration data public. 

Like compulsory reporting laws on-line registries have not remained confined to horrendous sex crimes against children.  While they were originally intended to name the worst of the worst,  sex offender registries have gradually broadened to include any type of sexual offence.  For example offenses listed on Pennsylvania’s sex offender registry include “aggravated indecent assault,” “unlawful contact or communication with a minor” and “sexual assault.”  New York’s list is even broader including patronizing a prostitute. 

As a result in 2013, there were nearly 750,000 registered sex offenders in the U.S., including individuals convicted of non-violent crimes such as consensual sex between teenagers, prostitution and public nudity, as well as those who committed their only offenses decades ago. Children as young as 13 have been placed on a registry.

Jill Levenson, an associate professor of psychology at Lynn University in Florida, questions the effectiveness of sex offender registries.  She references Department of Justice figures that conclude that only 13 percent of new sex crimes are committed by known sex offenders, and that such crimes are at least six times more likely to be committed by other types of offenders who do not appear on any sex offender registry.  She notes that studies, that have examined the effect of registry and notification laws for sex offenders on recidivism, “do not show a decrease in repeat sex offenses that can be attributed to sex offender registry or notification.”


There are now a host of registries listing non-sexual offenders.  In fact an organized effort to establish a new registry seems to always succeed.  Typically the New York State Senate voted 57 to 4 on Tuesday for a violent offenders registry.  In Illinois, the murderer’s registry bill passed the House in April by a 97-to-1 vote.   Representative Monique Davis, the lone member of the Illinois House to oppose the law, said that although she favored the state’s sex offender registry, “I just don’t think that a murderer registry is of much value to anyone except those getting paid to set it up.”  She noted that the recidivism rate for murder was very low to begin with and that the state, facing a deficit of more than $4 billion, could not afford the cost of another registry. In fact murderers have among the lowest rates of recidivism. Only about 1.2 percent of convicted murderers go on to commit another murder within three years of their release; roughly 35 percent commit other types of crimes within the same time period.

Activist groups across the U.S. are successfully promoting registries for drunk drivers even though as Maine State Representative Gary Plummer, a Republican, stated they are “prohibitively expensive.”   He said “I haven’t even gotten to the point of considering is it fair to put people on this type of registry, when we don’t have the resources” to do it, he said of the drunken driver bill, adding that he had also opposed proposals for arsonist and animal abuser registries as too costly.


With all these stories about bad tenants, Ontario PC MPP Ernie Hardeman has called on the Ministry of Municipal Affairs and Housing to look into creating a registry where bad tenants (and bad landlords) could be listed and seen by the public.  Hardeman said “there must be a way that once you have a record that record becomes public.” And BC landlords now the importance of tenant screening. And even Alberta landlords are making sure they rent to great tenants and avoid the pro bad tenants.


In fact registries are no longer being restricted to crimes against humans.  Suffolk County, on the eastern half of Long Island, has created the nation's first animal abuse registry, requiring people convicted of cruelty to animals to register or face jail time and fines.  The online list is open to the public, so that pet owners or the merely curious can find out whether someone living near them is on it - on the theory that some animal abusers have been known to steal their neighbors' pets.

"We know there is a very strong correlation between animal abuse and domestic violence," said Suffolk County legislator Jon Cooper, the bill's sponsor.  Repeating was essentially is an urban legend he said  "Almost every serial killer starts out by torturing animals, so in a strange sense we could end up protecting the lives of people."

Cathy Mulnard, a founder and co-director of Second Chance Rescue, a Suffolk animal shelter, said about animal abusers "They don't mean to be bad to the animal, but they get overwhelmed and don't know how to ask for help. They may be innocent abusers," She called the legislation "a godsend for the animals."  She added "We take care of our animals and love our animals the way you do your children," she said. "We need to protect every animal that's out there because they don't make the decisions in their life; human beings do."

Suffolk County is also notorious for having imposed such onerous restrictions on sex offenders exceeding those required by New York State law that it was faced with a situation where 40 sex offenders ended up living in two cramped trailers located in isolated locations.

Animal Abuse Registries exemplifies the whole problem with laws created by people with good intentions.  As SCOTT H. GREENFIELD, says on his Simple Justice blog “Animal abuse is wrong, therefore anything that causes misery to animal abusers is good.  And this is how bad law happens.” He observes that animal registries (like other registries) essentially gets the bad guy twice “You mean they were already sentenced for their crime?  You mean they served their sentence, paid their dues, and only afterward do they get this dumped on them, on top of everything else?”  Another erosion of the rule against double jeopardy.


Every time there is publicity about some repugnant act - idling a car in a parking lot, smoking in the vicinity of children, throwing a plastic bottle into a culvert, saying something hateful about a religious belief, some legislator somewhere in the U.S. will be trying to create another registry.  So the country will invariably end up with a significant portion of the population on a bad person registry.   Eventually the various registries will be combined into one BIG REGISTRY. 

In fact, in British Columbia, Canada that has happened.   B.C.’s Court Services Online provides public access to court records including the Provincial Court ticket records and Provincial Court criminal records. Most of the records displayed on this site are traffic offences or criminal code offences. Some offences are even municipal bylaw offences or offences under provincial or federal Acts, such as the Fisheries Act.   B.C’s Online Registry, like other registries, is accessed by all the information systems that are being utilized by government and policing institutions in Canada and the U.S. so invariably a person trying to travel to the U.S. will be stopped from entering the country because of catching a fish that was too small or failing to license the cat.

Friday, 6 March 2015


How do contemporary authoritarians differ from authoritarians of yesteryear.  In most of the developed world today’s authoritarians are a gentler bunch.   They don’t (usually) want to use a secret police force to beat up, execute or jail the miscreants that violate the rules. On the other hand there are a lot of areas of a person’s life that were untouched by old authoritarians but into which the new authoritarians are more than willing to intrude.  For example, food.  They want to regulate what you eat.  Food may well be the next big expansion area of illegality.

The authoritarians almost invariably use health to justify their initiatives.  At the forefront of health concerns is obesity.  Fighting obesity is now up there with fighting drugs.  The war on obesity has not yet been officially declared but the anti-obesity forces are marching to the front lines.  Those famous U.S. SWAT teams may soon be breaking down the doors of the obese and emptying the refrigerators!

For the time being the measures being proposed to fight obesity are usually financial like special punitive taxes on disfavored foods such as a one percent excise tax on so-called junk food.  Special excise taxes are also being proposed on the sale of soft drinks or soft drink syrup and on bottled, ready-to-drink tea or coffee, sports drinks, spring or mineral water, and flavoured milk products.  It is called “taxing fat”.  American food warriors are advocating prohibiting the use of food stamps for the “incorrect foods” which is to be expected, since we all know that the poor are the fattest of them all. It is an historical constant that so much authoritarianism originates from an upper middle class disapproving of the behaviour of the poor.

Some Food Fascists advocate subsidizing veggies and organics.  Other Food Fascists simply want to ban a wide range of foods of which they disapprove.  There is a long list of proposed bans ranging from large sodas to anything that is a product of biotechnology.  

There are lots of food fascists who would like to ban the eating of meat.  They claim that meat and dairy industries take up 38% of the world's land use and account for 70% of global freshwater consumption or, in other words, the planet is to small and crowded to permit unrestricted consumption of meat. We could supposedly feed 10 billion of people if we would go on a vegan diet planetary-wide.  Meat is also accused (unsupported by carefully controlled tests) of causing all sorts of diseases including arthritis, cancer, diabetes, obesity, excessive cholesterol/ high blood pressure and cardiovascular diseases.  So meat will be banned because it is for your own good.

Children as usual are a favorite target of the authoritarians (who seem to be particularly numerous in the education system) who want to re-engineer school lunches to the point of inedibility.   At Little Village Academy on Chicago's West Side, students are not even allowed to pack lunches from home. Unless they have a medical excuse, they must eat the food served in the cafeteria.  Principal Elsa Carmona said her intention is to protect students from their own unhealthful food choices.  "Nutrition wise, it is better for the children to eat at the school," Carmona said. "It's about the nutrition and the excellent quality food that they are able to serve (in the lunchroom). It's milk versus a Coke. But with allergies and any medical issue, of course, we would make an exception".

Parents of students at Holy Name of Jesus Catholic School in Hamilton, Ontario, are being asked to avoid putting dairy, eggs and fish into their kids’ lunches because of one student’s severe allergies. Clamoring PC food fascists can intimidate your favorite restaurant into removing your favorite dish from its menu.

How far will they go.  Will doctors be required to report people who have poor diet habits?  Do they report parents who allow their children to eat too many sugary foods.  Doctors in Ontario already have compulsory reporting obligations under eighteen different statutes.  Why not add another one.

Standing just behind the people who want to ban a wide list of allegedly unhealthy foods is another group of Food Fascists.  These are people from health departments and agencies - they see e coli lurking in any food product that has not been properly incinerated.  They have a habit of targeting food production and sale where there have been few reported incidences, e.g. Chinese barbecued meats.

Does Food Fascism have any scientific justification.  A study from the University of North Carolina showed that today's fatter kids are not eating more than 20 years ago, they're just exercising less.  Another study involving 400,000 people has shown that eating lots of fruit and vegetables makes little difference to your risk of getting cancer. This contradicts the received opinion of nutritionists who have for years bombarded us with bossy propaganda telling us we must eat five fruit and vegetables every day.

Another study involving 400,000 people has shown that eating lots of fruit and vegetables makes little difference to a person’s risk of getting cancer.  So much for nutritionists dictating that we must eat five fruit and vegetables every day.

Consequently food scares are being constantly being revised.  New ones added.  Old ones dropped. At the same time food fad come and go.  We have those radical vegetarians who wish to ban the consumption of meat.  We have the paleo diet people who oppose eating any food that was a product of the agricultural revolution - which incidentally was so bad for Homo Sapiens that it resulted in a huge increase in our population.

Unfortunately Food Fascism will be pushed along by well intentioned politicians backed by a well intentioned public.  The latest evidence is a poll commissioned by the do-gooders at the Public Health Agency of Canada claiming that a “majority of Canadians” support a ban on the marketing of candy, pop, chips and other essential fun foods of childhood as well as near-majority support for new taxes on treats.

Friday, 6 February 2015


The censorship of commentary does not necessarily start with overt repression. A social and political milieu can convince people not to express unwelcome words or notions ab initio. State repression is unnecessary if people can be coerced to repress themselves.  

Speech intolerance is enveloping our culture.  The most egregious form of this non-legislated censorship is found on American university campuses where elaborate speech codes have become almost universal.  The new censorship, however, is not limited to universities.  Public personalities must carefully parse their speech to avoid saying or writing anything that offends an ever developing code of correctness.  Even a celebrity like Madonna was forced to apologize for alleged racism after re-posting fan art of famous people’s faces such as Martin Luther King, Nelson Mandela and Bob Marley tied up in rope in order to look like the cover of her forthcoming album Rebel Heart.

A staunch conservative like former University of Calgary political scientist Mr. Flanagan was spectacularly exposed to the new censorship.  He learnt that is not permissible to say anything that downplays or questions any aspect of the protection of children.  Mr. Flanagan had in a previous university talk endeavored to distinguish between crimes that involve the abuse of actual children and those that involve "just pictures." In response to a question about people who are jailed just for viewing child pornography on the internet, he said "I certainly have no sympathy for child molesters," but then added, "It is a real issue of personal liberty to what extent we put people in jail for doing something in which they do not harm another person."

Now there is an obvious response to this statement; namely, that pictures of child pornography usually require a child being subjected to pornographic acts.  Mr. Flanagan’s comments, however, were not met with a reasoned response.  He had made the mistake of uttering a a verboten opinion.  By the end of the day, his employer of 45 years, the University of Calgary, had disassociated itself from him and the CBC had fired him as a commentator. Subsequently he would be disinvited from speaking engagements across North America. 

Mr. Flanagan’s friends on the Right were first and foremost in denouncing him.  Mr. Flanagan had worked hard to help build Danielle. Smith's Wildrose party into a credible political force in 2008.  But now, Danielle Smith was declaring  "There is no language strong enough to condemn Dr. Flanagan's comments," She said the party would no longer have anything to do with him.  The federal Conservatives followed suit.  The Prime Minister's communications director, Andrew McDougall said in a tweet "Tom Flanagan's comments on child pornography are repugnant, ignorant, and appalling”.

President Kathleen McCartney, the president of Smith College in Northampton, Massachusetts, learnt how remarkably easy it is to cross the line separating permissible and non-permissible speech.  She was forced to profusely apologize simply for sending an e-mail to students that had the subject line, “All Lives Matter.”  She quickly sent a second email expressing regret that she was unaware the phrase “All Lives Matter” was being used on social media as a counterargument to the “BlackLivesMatter” movement.  One student wrote  “It minimizes the anti-blackness of this the current situation; yes, all lives matter, but not all lives are being targeted for police brutality,”

Kathleen McCartney had previously “crossed the line” because there is a long list of words you can't say at Smith College - or apparently reproduce in the student paper.  She had said “We’re just wild and crazy, aren’t we.  The comment was re-written in a transcript in the student newspaper to read “[Smith President]: We're just wild and [ableist slur], aren't we?”

Smith alumna Wendy Kaminer, a feminist lawyer and civil-liberties advocate, spoke on a panel discussion on free speech and hate speech at the College in September, 2013 and asked the audience what word came to mind when she said "the n-word." When they said it out loud, she repeated it and said "nothing horrible happened."  Kaminer was accused in the Huffington Post of committing "an explicit act of racial violence," President McCartney - who moderated the panel - had obviously learnt her lesson - she even apologized for those who felt "unsafe" listening to Kaminer.

Trigger warnings are customary in some feminist and other spaces. They are designed to prevent people who have an extremely strong and damaging emotional response (for example, post-traumatic flashbacks or urges to harm themselves) to certain subjects from encountering them unaware. Having these responses is called "being triggered".

A blog with the title “Kyriarchy & Privilege 101” gives a list of triggering words ot types of words which includes swearing, talk of drug use (legal, illegal or psychiatric), descriptions/pictures of medical procedures (even if they don't contain blood or gore), any time slurs are used (this includes words like "stupid" or "dumb"), death or dying, spiders, insects, snakes, vomit, pregnancy/childbirth, blood, serious injury and best of all “slimy things”.  Perhaps the blog was being satirical - it is getting increasingly hard to distinguish between when some of these people are being satirical or “correct” to an absurd degree.  Perhaps satirical, perhaps extremist - it does give a flavour of the trigger word mentality.

The trigger warning idiocy is inevitably leading to even broader speech code rules at American universities.  Oberlin College, for example, recommends that its faculty "remove triggering material when it does not contribute directly to the course learning goals". When material is simply too important to take out entirely, the college recommends trigger warnings. Things Falling Apart is a novel about the great harms of colonialism, At Oberlin College “Things Fall Apart” now carries the warning that it “may trigger readers who have experienced racism, colonialism, and religious persecution, violence, suicide, and more” even though “it is a great and important book”.

Trigger warnings have inevitably become a way to short-circuit uncomfortable, unpopular or offensive arguments.  It is a new way to try to control speech.

The Oxford University Press, which bills itself as the largest university press in the world, provided another startling example of declaring certain words verboten.  It has told its authors not to mention pigs or sausages, or anything else which could be perceived as pork in their books in order to avoid offending Muslims and Jews. 

A few years back in an effort to eliminate potential "unpleasant emotions" among students, the New York Department of Education placed a ban on mentioning 50 or so common words including “birthdays, dinosaurs,slavery,Halloween, evolution and dancing" in city-issued tests.  After considerable ridicule New York’s educators (?) rescinded the ban.

So we can see two different developments.  Firstly, specific topics have become off limits.  At the same time more and more words are being removed from permissible communication.  This adds up to a chilling effect on freedom of speech generally.  In order to avoid running afoul of these inhibitors” politicians or media commentators will studiously avoid meaningful debate.  It is all part and parcel of a frightened, cowed society.

Tuesday, 16 December 2014


The Scottish National Party (SNP) are leaders in establishing the contemporary Nanny State.  Their triumphant piece of legislation is the Children and Young People (Scotland) Bill, under which every child from birth will be given a "named person", charged with keeping an eye on that child's interests until he or she reaches adulthood (age of 18).  A specific government worker will be assigned to every child at birth. These “named persons” will be charged with safeguarding each child’s welfare and with representing the state to the family.  Lets repeat that - every child in Scotland, not just children who are subject to abuse or neglect, gets a state minder.

The Children and Young People Bill was introduced to Parliament on 17 April 2013, passed unanimously by the Scottish Parliament on 19 February 2013, and received Royal Assent on 27 March 2014, making the Bill an Act of the Scottish Parliament.  The legislation is intended to be fully implemented by 2016.  It is a World First - there has not been a scheme providing for universal state surveillance of youth since the Nazis made the Hitler Youth compulsory for all German children in 1939.  The guardians will be chosen from among existing teachers and healthcare professionals and will be people who may already exist in a child's life but they are being given extra powers which make them in effect an overseer of parents and parenting.

The scheme has been trialed in the Highlands since 2010.   A council spokeswoman says 7,927 children have been given a “child’s plan” by a head teacher or health visitor.  Before the trial began, there were just 64 children on the child protection at-risk register in the whole Highland council area, now every child is supervised AS IF at-risk.

Every Health Board in Scotland must appoint a “named person” to every child at birth - the named person will be a health worker until the child reaches the age of five.  After the age of 5 the responsibility will then pass to councils until the child reaches 18, with teachers expected to be asked to take on the role. 

A Health Board is responsible for keeping records, not only on every child but on their parents too, who will be assessed against the new National Risk Framework. This can be used by “any practitioner in any circumstances where agencies are exploring a child’s needs”. Section 23 of the bill, “Communication in relation to movement of children and young people” requires that if any family in Scotland moves home, their local health board/authority current “named person” must pass on all the information held on each adult and child to the “named person” in the area to which the child moves.  A head start perhaps on a dossier which will be built up over a person’s lifetime. 

The new legislation significantly reduces the threshold for state intervention in a child’s parenting. The previous test was that a child must be at “serious risk of harm”; now the test is merely the risk of not meeting state dictated ‘wellbeing’ outcomes. These well-being outcomes are set out in a “National Risk Framework to Support the Assessment of Children and Young People.   What comes through very clearly in this document is that parents must be compliant.  They had better not shown any resistance to the opinions and actions of the intervening professional.    What is required (if parents do not want to “lose” their children) is “An admission by a parent of the problem and a willingness to co-operate with a treatment and intervention programme ...”  A resistance related risk Indicator for a parent includes merely having “a different perception of the problems/risks.”  In Nazi Germany children could be taken away from their parents if they did not provide a "politically reliable" home; in modern Scotland a child will be taken away if the parent fails to provide the kind of idealized, middle-class parenting that young social workers were taught in university. 

PART 5 of Scotland’s totalitarian legislation is headed CHILD’S PLAN.  Yes the State has a PLAN for each child that a Named Person thinks has a well-being need.  The Named Person will rarely be called out for making a wrong assessment since “A child has a wellbeing need if the child’s wellbeing is being, or is at risk of being, adversely affected by any matter.”  When Big Mother has identified a well-being need the child is made the subject of a “targeted intervention”.  At that point the state will decide whether the targeted boy or girl requires a CHILD’S PLAN.   The responsible authority is required only as “reasonably practicable to ascertain and have regard to the views of the child, and the child’s parents.”   Scotland’s very own Balder von Shirach, Children's Minister Aileen Campbell, very magnanimously declared "we recognise that parents ALSO have a role" in raising their children.  A subsidiary one, of course.

The scheme fundamentally replaces parents with state officials.  For example under new guidance issued to Scotland’s schools teachers whose under age pupils admit having sex are instructed to inform the SNP’s planned network of “state guardians” instead of parents. The Scottish Government document advises teachers they should contact the youngster’s “named person” if a pupil tells them about sexual behaviour that raises a “child protection concern”. Any other information that raises the possibility the pupil’s welfare is at risk must also be passed to the named person, according to the advice.  It makes no mention of telling mothers or fathers.

Perhaps the order of the initials for Scotland’s ruling party got mixed up.  Rather than SNP it should be NSP as in National Socialist Party or Nazi.

Saturday, 29 November 2014


What is big data?  Wikipedia defines big data as an all-encompassing term for any collection of data sets so large and complex that it becomes difficult to process them using traditional data processing applications.   Big data is the machine-based collection and analysis of astronomical quantities of information.  Vast quantities of data are analyzed to uncover hidden patterns, unknown correlations, market trends, customer preferences and other useful business information.  Algorithms are used to search for statistical correlations between one kind of behavior and another.  The data is typically derived from the internet and includes web server logs and Internet clickstream data, social media content and social network activity reports, text from customer emails and survey responses, mobile-phone call detail records and machine data.

Essentially, big data is all about following and then analyzing our digital footprints on the internet and elsewhere.  Every aspect of our life including location records via mobile phones, purchases via credit cards and interests via web-surfing behavior has been recorded and potentially shared by some entity somewhere. All of this data is then analyzed to provide fundamental insights into both our personal and collective behavior.   The unpleasant reality is that these insights can be surprisingly revealing.

Just how powerfully intrusive is big data.  A recent study published in the journal Science found that just four bits of information mined from a shopper's credit card could be used to uniquely identify ninety per cent of individuals.  The credit card information was made up of ordinary, every day expenditures such as where the individual bought coffee or purchased a new sweater or pair of shoes.

Credit cards use was just as reliable at identifying someone as mobile phone records.  An individual could be re-identified with "just a few more additional data points” even if some of the specifics were removed from credit card data, such as the general area where a purchase was made instead of the specific shop or if the time range was expanded to one day to 15.  Interestingly women were more identifiable from metadata than men.  Similarly people with higher incomes were also easier to identify.

Data brokers collect consumer information and then sell it to other companies. They are not hindered by "do not track" option which are available on many browsers, since it is not legally binding.  Giant data-collection firms sort details of online and offline purchases to help categorize people as runners or hikers, spenders or savers, conservatives or liberals, main streamers or counter-culturalists and so on.

A bank will use the data to assess a mortgage applicants credit worthiness.  Big data’s supposed predictive qualities go far beyond the traditional elements which determine whether a person has good credit i.e. the person has paid all of his or her loans and debts in a timely fashion.  For example, a person’s contacts on Facebook or Twitter or LinkedIn can be used to assess his or her "character and capacity" when it comes to loans.  This might be done by “analyzing” friends. Are they rich? Are they poor.  If a number of associations with losers are detected by algorithms, a person can be labeled a poor credit risk and disqualified from a loan.  The individual may very well never find out about the true cause of the loan rejection - the “”lender will likely avoid being up front about the reason.  

It has been suggested that even the repayment history of the other customers of stores where a person shops can result in a negative "behavioral scoring".  Although this method of credit rating (guilt-by-association) is something that is totally beyond an individual’s control, lenders will use it because it provides a reliable statistical inference.   The consequences, however, for the individual will likely be horrendous.

Insurers are particularly excited by big data.  It is costly to use blood, urine and other physical tests to assess a person’s health.   Big data, however, may be able to reveal as much about a person as a lab analysis of bodily fluids.  The individual leaves an information trail that show such lifestyle factors as exercise habits and fast-food diets which can be used to estimate risk for illnesses such as high blood pressure and depression.  Similarly the individual might reveal concern about injuries and illnesses from websites that are visited.

The contemporary notion of privacy is based on two premises; namely, 1) individual choice in the sense that there is informed consent to disclosure and 2) on anonymization or that data is decoupled from an identified individual.  With big data, however, the information is used and reused in a manner separate from purpose for which it was originally provided.  Similarly even if the information is devoid of identifying data, the relationships between the individual pieces will identify the individual.

A person can avoid creating bad data by simply by cutting himself or herself off from the internet. We can’t help that suspect that “no data” will have the same negative consequence as having no credit cards and no mortgages.   

The negative impact of big data is not limited to a form of economic blackballing.  Edward Snowden revealed that the National Security Security Agency in the U.S. has full access to internet information and all the analytic tools of big data.  Combine this access to an individual’s digital footprint (which, of course, is mostly gratuitously created by the individual) with all the information that government already has on individuals through income tax and social program records, financial disclosure requirements, travel records and the like and you have the blueprint for surveillance at a level never previously approached even in highly totalitarian societies.  

Assurances are given that these super powers of surveillance will only be used to counter terrorism or the drug trade or other nefarious activities ... but once a “power” is there does it ever really remain benign for very long.  There will be an inevitable expansion in the ways that super surveillance is used to “regulate” the entire population.

Friday, 21 November 2014


We are moving step by step to a world where the national governments in the U.K., Australia, the U.S. and Canada will have a dossier on each of its citizens.  It will be quickly and readily accessible to a number of government officials, security agencies and police.  The information in the dossier will be extensive - it will include detailed financial information, information on tax and GST filings, information on travel history, information on property ownership and information on political tendencies.

This article looks at the development of the information web in Canada - there are similar legislative trends in the U.S., Australia and the U.K. The information web is not yet perfected but it is quickly getting bigger and better.  Most of the legislative framework is in place.  Components of the dossier system in Canada include the following:

Border Crossing Information

On December 13, 2012 Canada signed a Treaty with the United States of America (U.S.) to enable systematic immigration information sharing between the two countries on border crossings.  The Treaty creates a legally binding instrument under international law to govern systematic information sharing.  Two separate implementing arrangements are currently contemplated under the Treaty. The first covers systematic biographic information sharing to be implemented in 2014, and the second will cover systematic biometric information sharing to be implemented in 2015.

Canada and the United States under the so-called bilateral “Entry/Exit Initiative,” are already collecting and exchanging the entry data at all land border ports of entry of third-country nationals, permanent residents, visitors, foreign students and those who are here on work permits.  The personal information collected includes a traveler’s name, date of birth, nationality, sex, document type, document number, work location code/port of entry code, date and time of entry, and the country where the travel document was issued. The scope of the program is being extended to all people traveling through land border crossings, including Canadian and American citizens.  Canadian and American authorities will automatically be notified of every border crossing by a citizen, immigrant or visitor almost instantaneously under the vastly expanded border control system.  The system will track the movements of Canadian and American citizens with "near real-time" exchange of information between government agencies.   Ultimately, in the program’s final phase, Canada will develop a system to establish exit records similar to those in the United States, where airlines are required to submit passenger info on outbound international flights.

The program will pass the tracking information on to other federal departments in Canada and the United States.  The Canada Border Services Agency has confirmed the new practice and said data would be passed on only in accordance with stringent rules. CBSA spokesperson Esme Bailey would not say if this new program would be used as an enforcement tool for purposes other than border security, however, she said “access to the information will be limited to designated users with an operational requirement for the information on a “need-to-know” basis. But the revelation is raising questions about privacy, how the information will be used and whether the federal government plans to use this data to crack down on immigration, citizenship, health and tax cheats. 

The United States will be allowed to share information about Canadians with other countries under a sweeping border deal.  The U.S. will not be required to explicitly tell Canada about its plan to pass along the personal details.

Immigration policy analyst Richard Kurland said “With this system, it is a blank cheque to the Big Brother. Where you go and when you go becomes government property.”  Kurland noted that the data collected can be used as an enforcement tool of immigrant residency and citizenship laws for newcomers, as well as in the application of health care and taxation rules for Canadian citizens by counting their days spent in Canada.


The Strengthening Canadian Citizenship Act, known as Bill C-24, which was enacted in July, 2014, contains provisions which gives Ottawa broad new powers to disclose information. It is not yet known to whom such information will be disclosed as he Act gives the government power to pass a set of regulations which will set out the details to whom and under what circumstances such information will be disclosed.   

In fact regulations may be passed under the Act to  provide for the collection, retention, use, disclosure and disposal of information for the purposes of the Act.  Regulations may also provide for the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs.   International Affairs includes the implementation of an agreement or arrangement entered into under section 5 of the Department of Citizenship and Immigration Act or in other words an agreement for information sharing with a foreign government.  Additionally regulations may be passed to provide for the disclosure of information to verify the citizenship status or identity of any person for the purposes of administering any federal or provincial law or law of another country.  Finally regulations may provide for the disclosure of information for the purposes of cooperation within the Government of Canada and between the Government of Canada and the government of a province.  To summarize, information may be shared with other federal departments, with provincial departments and with foreign governments.  There is no guarantee that this information will be narrowly restricted to relevant immigration issues.  Given that other provisions of the Act require prospective citizens to make broad disclosure of their personal affairs, the government dossiers on New Canadians will have some extra heft. 

Income Tax Enforcement

Section 241 of the Canadian Income Tax Act seemingly requires the CRA to keep taxpayer information confidential but this traditional privacy notion has been largely amended out of existence.  There is a long list of exceptions to Section 241.  Information can be disclosed to Canadian government officials when it can reasonably be regarded as necessary for the purposes of the administration or enforcement of the Income Tax Act, the Canada Pension Plan, or the Employment Insurance Act. It can be disclosed to provincial governments for purposes of the administration of the workers' compensation program, for the use in the management or administration of a program relating to earning supplementation or income support or for use in the management or administration by that government of a program relating to payments under subsection 164(1.8) of the Act. 

The Minister may, where the taxpayer is, or is about to become, liable to make any payment to the federal government or to a province, apply the amount of the refund or repayment to that other liability and notify the taxpayer of that action.  Refunds can also be redirected for a child maintenance payment made pursuant to provincial law. 

There are a host of other exceptions.  Information can be passed to a government official for the purposes of formulation or evaluation of fiscal policy; to a police officer or a Canada Customs officer for the purpose of investigating whether an offence has been committed under the Criminal Code and to “appropriate persons” if the information relates to the imminent danger of death or physical injury to any individual.  The Income Tax Act also provides that taxpayer information may be disclosed to the Canadian Security Intelligence Service, the Royal Canadian Mounted Police or the Financial Transactions and Reports Analysis Centre of Canada where the information may be used by these organizations to assist with ongoing investigations related to national security.  This disclosure provision was introduced as part of the recent package of “terrorism-related” legislation.

Section 79 of the Family Orders and Agreements Enforcement Assistance Act provides access to so-called  information banks maintained by various federal government departments, and where there is an information agreement, provincial departments notwithstanding any provision in any other Act of Parliament that prohibits or restricts the release of information.

The Canada Revenue Agency (CRA) can enter into written collaborative arrangements, such as Information Sharing Agreements (Agreements), with federal, provincial and territorial departments.  For example the Agreement with the British Columbia Vital Statistics Agency (BCVSA) has been in effect since July 28, 2009.  The CRA can give information to other countries with which Canada has a tax treaty that authorizes the exchange of information.  These include a Tax Information Exchange Agreement ("TIEA“) or a listed international agreement, which includes the Organization for Economic Co-operation and Development ("OECD") Agreement.

Foreign Account Tax Compliance Act

The Foreign Account Tax Compliance Act requires Canadian financial institutions to supply comprehensive financial information to the Canada Revenue Agency which then turns it over to the Internal Revenue Service in the U.S.  The agreement provides that if an account holder is a “U.S. person” (such as U.S. residents and/or U.S. citizens (including U.S. citizens who are residents or citizens of Canada), the financial institution will be required to collect and report information on the account to the CRA in respect of that account holder. The information that will be collected and shared with the IRS will include information about the account holder including his or her name, address, the individual's U.S. taxpayer identification number and certain financial information pertaining to the account.  This information will be transmitted by the CRA to the IRS under the existing provisions of the Canada-U.S. tax treaty relating to exchange of information.

The Operations Centre Information Portal

The Canadian Safety and Security Program (CSSP), led by Defence Research and Development Canada's Centre for Security Science and the Government Operations Centre (GOC), have developed the OCIP which is a system that enhances the GOCs ability to share data immediately across federal operations centres.  It gathers information on all types of events affecting Canadians at home and abroad ranging from a local fire department responding to a forest fire, to special security arrangements for visits from international dignitaries.  The portal was created with the express purpose of organizing incoming information and readily sharing what's relevant with many operations centres at the click of a mouse.   It gives users the ability to share documents quickly, track ongoing events, and issue notices about incidents of interest. It also has a number of collaborative custom-built features such as a chat tool, a Request for Information tracker, and an incident management log to categorize incoming alerts.  Recently, an `automatic messaging' feature was added which allows alerts to be sent to offline operations centres users when a request for information is posted.

Initially only a few key federal departments had access to this so-called tool but it now employed by 21 federal departments and agencies, with more likely to join in 2015.  Federal agencies using the portal are currently looking at how it could be used in their regional offices.  The use of common data standards in OCIP will allow for continued growth in the future.  

The Internet

One of the documents retrieved by U.S. whistle blower Edward Snowden showed that Canada's electronic spy agency uses information from the free internet service at a major Canadian airport to track the wireless devices of thousands of ordinary airline passengers for days after they left the terminal.  This is probably illegal since the spy agency is supposed to be collecting primarily foreign intelligence by intercepting overseas phone and internet traffic, and is prohibited by law from targeting Canadians or anyone in Canada without a judicial warrant.  Security experts who have been apprised of the document point out the airline passengers in a Canadian airport were clearly in Canada.  CSEC justified its actions by claimiing that it is "mandated to collect foreign signals intelligence to protect Canada and Canadians and that in order to fulfill that foreign intelligence role for the country, it is legally authorized to collect and analyze metadata.

The kind of metadata being collected is more than just "phone book" information.  It reveals a trove of information including, for example, the location and telephone numbers of all calls a person makes and receives.  Knowledge of subscriber information, such as phone numbers and IP addresses, can provide a starting point to compile a picture of an individual's online activities, including online services for which an individual has registered, personal interests based on websites visited; and organizational affiliations.  It can also provide a sense of where the individual has been physically (e.g., mapping IP addresses to hotel locations, as in the Petraeus case). 

This information can be sensitive in nature in that it can be used to determine a person's leanings, with whom they associate, and where they travel, among other things.  What's more, each of these pieces of information can be used to uncover further information about an individual. 

Bill C-13

Frank Addario, a Toronto-based lawyer, notes that digital data surveillance gives the state virtually unfettered access to eavesdrop or read every single personal communication with no mechanism for accountability.  He suggests that the government has done nothing to rein in police techniques to obtain digital information from third party carriers like cell phone and social media providers. “By not recognizing the pressure that state snoops put on these regulated carriers, the government has delivered us into a post-privacy world.”

The Supreme Court of Canada in the Spencer case tried to put the brakes on the police coercing third party carriers to hand over digital information. Addario questions whether the courts are an adequate “substitute for legislative control of surveillance techniques to restrain overenthusiastic intelligence collectors”.  It is unlikely that such legislative control is forthcoming. Rather than trying to restrain overenthusiastic intelligence collection the Harper government has made repeated attempts to legalize it.  Their latest effort is BILL C-13 which has now passed through the House of Commons and is on to the Senate.  Bill C-13, if passed, will give police easier access to the metadata that internet service providers and phone companies keep on every call and email by their customers.  It will make it easier for police to get preservation or production orders by lowering the threshold from a "reasonable grounds to believe" a crime has happened or could happen to "reasonable grounds to suspect."  Most significantly, the bill will give immunity to any companies that turn over to police the information they hold.  Although these companies might not be compelled to hand over the information, past experience shows that they usually accede to police pressure especially if it has no negative legal consequences.

Privacy Laws

Provincial governments are increasingly exempting themselves from the operation of privacy laws. In 2011 the B.C. government amended the Freedom of Information and Privacy Act to increase the ability of government ministries to share citizens' information amongst themselves and centralize that data electronically.  The legislation, among other changes, lets ministries share information when government programs involve more than one department, permits use of so-called data linking to combine existing databases, such as for research and allows for the creation of a super ID combining driver's licences and health-care cards.


Government, provincial and federal, are erecting a vast information structure exemplified by the Operations Centre information Portal.  This is BIG DATA IN FULL FLIGHT. There are still technological weaknesses in the structure but it highly likely that there will soon be a time when certain government officials, spy agencies and the police will be able to bring forth a detailed dossier on each and every Canadian citizen by inputting a name, a social security number and an address.  This dossier will not only give a detailed description of a person’s life history, it will have point in time accuracy.  Our governments assure us that they have instituted internal reviews and controls to prevent misuse of this information but history tells us that internal bureaucratic run controls are useless.  Governments also tell us that the information web will only be used for good purposes - catching terrorists, drug dealers, child pornographers, cyber bullies, criminals generally.  We should note, however, that federal and provincial governments have been busy creating new crimes, new offenses.  All sorts of social misbehavior are being criminalized or semi-criminalized.  Punishments for provincial offences are constantly being made more severe. In a society where almost everyone is a criminal or potential criminal almost everyone is a government surveillance target. 

Friday, 24 October 2014


An Ontario Department of Labour pamphlet asks “What is Workplace Harassment?”  It begins to answer this question by referencing the definition of workplace harassment in Ontario’s Occupational Health and Safety Act.  Workplace harassment means "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome."  According to the Ontario Department of Labour  “Some of the types of harassment that workers could experience in the workplace include sexual harassment, teasing, intimidating or offensive jokes or innuendos, display or circulation of offensive pictures or materials, unwelcome, offensive, or intimidating phone calls, or bullying. Leering, unwelcome gifts or attention, offensive gestures, or spreading rumours could also be considered harassment.  It says “This definition of workplace harassment is broad enough to include harassment prohibited under the Ontario Human Rights Code, as well as "psychological harassment" or "personal harassment."

This is a typically very broad definition of harassment now found in like statutes.  In New Brunswick personal harassment means “any objectionable or offensive behaviour that is known or ought reasonably to be known to be unwelcome. It includes objectionable conduct, comment or display made on either a one-time or continuous basis that demeans, belittles, or causes personal humiliation or embarrassment”.  The test in Ontario and New Brunswick is essentially a subjective test since the determining factor is whether the conduct is “unwelcome” to the so-called victim.  This contrasts to the U.S. where at least federally workplace harassment must be severe or pervasive enough to create a "hostile or abusive work environment" for the plaintiff and for a reasonable person. 

How far reaching is workplace harassment in Ontario?  Consider this example.  A fellow worker, who is an avowed atheist, is reading The God Delusion by Richard Dawkins.  She brings the book with her to lunch and is “confronted” by the victim who makes it very clear that because of his own fundamentalist Christian beliefs he finds the “display” of this book as unwelcome and offensive.  But our harrasser doesn’t care.  The victim can read his bible at lunch if he so chooses and she will read Dawkins so she continues to bring the book to the staff lunch room.  Under the definition she is engaging in harassment because HE finds the display of the book offensive and SHE KNOWS that it is unwelcome.  In New Brunswick a single so-called objectionable comment or display (like the cover of the God Delusion) if it is unwelcome and is embarrassing (to a complainant), constitutes workplace harassment. 

Even an unwelcome gift can constitute harassment.  Jill brings back female figurines from her Cuban vacation and gives one to each of her five co-workers.  One of the co-workers is offended by the voluptuousness of the figurine.  Once again we have workplace harassment.

Teasing is included in workplace harassment.  So are any jokes that the sensitive individual might find offensive.  If a person wants to avoid problems at his workplace, he or she should be suitably dour - keeping comments to a minimum avoiding saying anything beyond vague pleasantries.

Leering is workplace harassment.  What is leering?  Does it mean looking at someone for too long a period of time or is it the nature of the look?   A leer is defined in the dictionary as looking “at someone in an evil or unpleasantly sexual way”.  How do we know that there is an evil or unpleasantly sexual thought behind a look.  Given the overall tenure of workplace harassment law in Ontario it is the victims’s perception which is determinative - if the victim “feels” that there is something sexual or evil in a the perpetrator’s look, then that must be the case.  So how do you avoid being accused by the sensitive individual of leering?  Keep you head down.  Avoid eye contact.

Of a similar vein is the notion of offensive gestures.  Is rolling your eyes an offensive gesture?  It may well be very offensive to an easily threatened individual.  It is readily apparent that the all encompassing and very subjective definition of harassment is creating a new tyrant - the sensitive individual who is quick to see offense in the conduct of her fellow workers and bosses.

Workplace harassment is not limited to one worker “harassing” another worker or a boss “harassing” a worker.   We are told in the Ontario Department of labour pamphlet that  “Workplace harassment, like workplace violence, can arise from a variety of sources, such as other workers, supervisors, customers, clients, patients, students, intimate partners, or family members.”

It is similar in British Columbia where the definition of bullying and harassment in British Columbia includes any inappropriate conduct or comment by a ‘person’ towards a worker that the ‘person’ knew or reasonably ought to have known would cause that worker to be humiliated or intimidated.  A ‘person’ includes any individual, whether or not they are a workplace party. This means that a ‘person’ could be a workplace party such as an employer, supervisor, or co-worker, or a non workplace party such as a member of the public, a client, or anyone with whom a worker has contact at the workplace. 

In other words workplace harassment extends to a customer in a coffee shop who makes an “inappropriate comment” to a waiter; i.e. “You dumbass, you served me the wrong drink” said in a voice loud enough for other diners to hear thus causing the waiter to (quite reasonably) be humiliated. The struggling to survive restaurant owner will be liable.

The penalties under the Ontario Act are not minimal.  Every person who contravenes or fails to comply with “a provision of this Act” is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both.  If the culprit is Ma & Pa Corner Grocery Store Ltd. (and owners are made liable for the sins of employees) the maximum fine that may be imposed upon the corporation is $500,000.00. Bankrupted because the delivery boy told a bad joke. 

It is not surprising that waiting rooms in hospitals, government offices and other institutions are now littered with intimidating signs warning customers, patients and users of public services - in effect - not to complain too much.

Employers are made responsible for preventing so-called workplace harassment.   Because they can be blamed and usually will be blamed for worker on worker harassment (and the resultant liability), they must when considering potentially harassing conduct be as conservative as possible.  They must tell their workers not to say or do anything that can be remotely interpreted as unwelcome to anyone near or at work.  In particular they must forbid any mention of anything relating to sex.  They must  by necessity create a nervous, rule bound, joyless, sterile, unfree workplace.  Examples from the U.S. (even with its more objective criteria) illustrate this.  At the University of Nebraska at Lincoln, a harassment complaint was filed against a graduate student who had on his desk a 5" x 7" photograph of his wife in a bikini.  The employer ordered that the photo be removed.    At Penn State a professor complained that a print of Goya's Naked Maja hanging in a classroom constituted sexual harassment and accordingly the school administration removed the painting. 

Well intentioned governments are creating social environments where people are in constant fear of offending a colleague, where workers and bosses are constantly walking on eggshells, where the rights of overly sensitive individuals override the rights of everyone else, where casual, relaxed humour is outlawed ...   This is the new unfreedom of the 21st century. 

Monday, 22 September 2014


Future historians may very well label this the Era of Fear. Our fears are multi-dimensional. We are afraid of terrorists. We are afraid of crazies shooting up people in malls. We are especially afraid of young people.

Fear is a driver for people in authority. Government offices are in a permanent state of lock down with multiple guard points keeping out the dangerous public. Schools are increasingly taking on the appearance of a prison.

Into this comes "risk assessment". School administrators - an especially paranoic set of bureaucrats - have taken up risk assessment with a vengeance. Consider the Threat Assessment Protocol of the Langley School District, a suburb of Vancouver, British Columbia, Canada. Part of it reads "3. Worrisome Behaviours. Worrisome behaviours are those that cause concern for members of the school system and which may indicate that a student is moving toward a greater risk of violent behaviour. This would include instances where a student may be engaging in behaviours such as drawing pictures, writing stories in class, or making vague statements that do not, of themselves, constitute "uttering threats" as defined by law but are causing concern for some members of the school community because of their violent content. The majority of threat-related behaviour, from Kindergarten to Grade 12, falls into this category. All worrisome behaviours will be communicated to the school principal."

You know what results from this kind of protocol. A five year old draws a picture of a gun and all hell breaks loose. In fact that has happened a number of times in paranoic school districts in North America. The parents of an eight year old boy at Scottsdale Country Day School were called to a meeting last week. The principal told them that their child was a danger to other children and threatened to expel him over three drawings which depict a soldier, a ninja and a Star Wars character. Each was carrying a weapon and all were ideas the boy had for his Halloween costume. The principal apparently was "acting" in accordance with Scottsdale County Day School policy which makes the drawings of weapons grounds for expulsion. Elsewhere a drawing of a gun by a four-year-old resulted in the arrest of her father when he came to pick her up from school. The father was detained by police and strip-searched and his children were questioned by social services. The gun depicted was a plastic toy that belonged to his kids. There have been numerous other such incidents.

If not expelled, thousands of students will be identified as "worrisome" and will be made subject to a formal assessment. The formal assessment will become part of the student’s file. It will follow them through their entire time in the education system and into the career world. 

Formal assessments are a form of policing. In fact, in many cases fear stricken principals will pass the formal assessments onto the police. The police in turn are increasingly maintaining (and passing on) material above and beyond criminal convictions.

The next big movement in risk assessment will be the utilization of Big Data. Governments in the U.K., the U.S. and Canada have pretty much unlimited access to people’s internet usage. Big Data identifies persons who are constantly doing internet searches on topics of violence or other controversial topics. It will be a valuable tool for government to identify political outliers left and right such as environmentalists, anarchists, survivalists and socialists. In particular it will identify people who are seen as having "disruptive" attitudes.

Disruptive behaviour is another categorization favoured by the Grand Nannies that now seem so omnipresent in the administrations of North American universities. Texas Woman's University provides a procedure for the referral, evaluation, and appropriate disposition of students displaying so-called disruptive behaviour. There is the typically broad definition namely "Disruptive behaviours are overt actions, omissions to act, or verbal or written statements that would not be consistent with the actions or statements of a reasonable, prudent person under similar circumstances." The University further explains "Disruptive behaviour typically refers to directly observable behaviour. But, it may also include a student’s behaviour by electronic means (e.g. e-mail, social networking sights, postings to electronic classrooms, etc.) as well." The Associate Vice President for Student Life must be notified by faculty, staff, or students of any instance where a student demonstrates disruptive behaviour. The next step is to have the Orwellian named Behavioural Assessment Team (BAT) spring into action - the consequence to the student may be the university’s favorite big stick - expulsion.

The University of Minnesota Duluth claims in a direction to faculty and staff that "Disruptive, disrespectful, and even violent student behaviour has become a national trend at universities." That is surprising only if one does not consider what the University’s baby sitters describe as "disruptive behaviour". The directive states that "Students are responsible for conducting themselves in a manner that is respectful of the instructor and other students in the classroom, is civil in language, tone and behaviour, and is receptive to ideas and other points of view." In other words do not disagree too vigorously with your professor and other students. Avoid any sarcasm, hyperbole, irony, overt criticism, etc. If you don’t, your professor is instructed that "it is essential that you take appropriate and immediate steps to curtail this behaviour" So students beware - do not express any strong views and modify your comments so that they fit in with the consensus opinions of your fellow students and professor. As per the old Japanese saying "`the nail that sticks out gets hammered down". 


Tuesday, 16 September 2014


In an earlier article I described how citizen spies are increasingly being used by the state to report on the possible wrongdoings of their neighbors. There is another type of spy which is increasingly being used by authorities in the U.S., Canada the UK and Australia. These spies are usually professionals like medical doctors and nurses and they are compelled to report certain types of wrongdoing.

Historically a person in the Anglo jurisdictions did not commit an offence by not reporting a crime. The exception was misprision of felony which was an offence under the common law of England and was classified as a misdemeanour. It consisted of failing to report knowledge of a felony to the appropriate authorities. It has been abolished in England and Wales, in Northern Ireland, in the Republic of Ireland, and in New South Wales. 

The United States still has "misprision of felony" as a federal offence. It provides that "whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both". This offence, however, requires active concealment of a known felony rather than merely failing to report it.
Like many legal rights, the right not to report an offence has been eroded since the 1980's. Compulsory reporting is now part of the law in a hodgepodge of ways and in a hodgepodge of jurisdictions, state, provincial and national. Compulsory reporting like all these things started out with the most laudable of intentions. The first area of concern was bringing child abuse to the attention of social workers and police. As usual the U.S. was the source of the movement to expose child abuse. Legislation was passed in most of the American states requiring various persons to report child abuse.
Forty-eight American States have legislation designating professions whose members are mandated by law to report child maltreatment. Individuals designated as mandatory reporters typically have frequent contact with children. Compulsory reporting was initially limited to professionals who have frequent conduct with children such as social workers, teachers, principals, and other school personnel and physicians, nurses, and other health-care workers. The list of mandated ‘child abuse’ reporters, however, has gradually expanded. Seven States and the District of Columbia even include animal control or humane officers. Court-appointed special advocates are mandatory reporters in ten States; clergy are mandatory reporters in 27 States and Guam. Eighteen States have made it all really simple; any person who suspects child abuse or neglect is required to report regardless of profession. Upon conviction in Florida a mandated reporter who fails to report can face jail terms ranging from 30 days to 5 years, fines ranging from $300 to $10,000, or both jail terms and fines. 

New Hampshire’s law makes the following long list of people mandatory reporters: "any physician, surgeon, county medical examiner, psychiatrist, resident, intern, dentist, osteopath, optometrist, chiropractor, psychologist, therapist, registered nurse, hospital personnel (engaged in admission, examination, care and treatment of persons), Christian Science practitioner, teacher, school official, school nurse, school counselor, social worker, day care worker, any other child or foster care worker, law enforcement official, priest, minister, or rabbi". It then adds "or any other person having reason to suspect that a child has been abused or neglected".
The General Medical Council in the U,K, advise all doctors seeing adults to always be suspicious of child abuse and neglect even if they may never have met the children of those adults. Mr Dickson of the General Medical Council said: "It is important that doctors treating adults are child protection aware. Their responsibility extends to patients they may not have seen. Doctors need to be aware of the environment and individuals who may increase the risk of harm." All doctors have a responsibility to be aware of child protection issues and should report concerns even if they simply have a 'hunch or feel uneasy', says Sir Peter Rubin, chairman of the GMC.

Compulsory reporting is not, however, confined to child abuse. In North Carolina every citizen has a legal duty to report cases where there is suspected child abuse and/or neglect by a parent, guardian, custodian or caretaker; they are also required to report abuse, neglect or exploitation of a disabled or elder adult by their caretaker. Physicians and hospitals in North Carolina must report to law enforcement certain kinds of wounds, injuries or illnesses. School principals must report immediately to law enforcement when he or she has personal or actual knowledge that an act has occurred on school property involving certain offenses. Photo processors or computer technicians are also mandated to report, if within the scope of their employment, they come across images of a minor (or one who reasonably appears to be a minor) engaging in sexual activity.
Seniors are a rapidly expanding object of compulsory reporting. S. 7(1) of Alberta’s Protection for Persons in Care Act requires every person who has reasonable ground to believe there is or has been abuse involving an adult who receives care or support services from a hospital or lives in a care facility" to report abuse to a complaints officer, the police, or other authorized person, body or committee authorized to investigate abuse. In Manitoba the Protection for Persons in Care Act (s. 3(1)) requires every person with a reasonable belief that an adult resident, in-patient or person receiving respite care in a health facility is, or is likely to be, abused to promptly report the belief to Protection of Persons in Care Office at Manitoba Health. It is therefore mandatory for all health professionals to report abuse covered by this act.

Ontario’s Long-Term Care Homes Act applies to abuse and neglect of the residents of senior’s facilities. The Act (s. 24(1)) imposes a duty on the general population to report abuse and risk of abuse. Any person must report to the Director (who has been appointed by the Minister of Health) the following; improper or incompetent treatment or care resulting in harm or risk of harm, abuse of a resident by anyone, neglect by the licensee or staff that has resulted in harm or a risk of harm to the resident, unlawful conduct that has resulted in harm or a risk of harm to a resident and misuse or misappropriation of a resident's money. Abuse includes verbal abuse which in turn means "any form of verbal communication of a threatening or intimidating nature or any form of verbal communication of a belittling or degrading nature which diminishes a resident’s sense of well-being, dignity or self-worth".
Nova Scotia has taken it all one step further. It has made all of its citizens mandatory reporters of ALL adult abuse and neglect. Section 5(1) of Nova Scotia’s Adult Protection Act (s. 5(1)) requires every person to report abuse and neglect of vulnerable adults. The law states: "Every person who has information, whether or not it is confidential or privileged, indicating that an adult is in need of protection shall report that information to the Minister of Community Services. "Adult in need of protection" means an adult who, in the premises where he resides, (i) is a victim of physical abuse, sexual abuse, mental cruelty or a combination thereof, is incapable of protecting himself therefrom by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his protection therefrom, or (ii) is not receiving adequate care and attention, is incapable of caring adequately for himself by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his adequate care and attention" Individuals who fail to report the information are guilty of an offence and may be fined up to $1,000 or imprisoned for up to one year, or both (ss. 16(1) and 17). The wise, law abiding citizen wishing to avoid a one year jail sentence should be sending daily reports about his neighbors to the Minister of Community Services since they could be victims of mental cruelty (the citizen hears the neighbor’s wife delivering a nasty insult to him) or refuses or delays in making provisions for his protection therefrom (the husband does not report this mental cruelty to authorities) or refuses or delays to make adequate provision for his adequate care and attention (the neighbor is giving himself lung cancer by smoking or heading towards diabetes by over eating).

There is a also panoply of elder abuse legislation and mandatory reporting requirements in the U.S. Under Connecticut law elder abuse includes, but is not limited to, the willful infliction of physical pain, injury or mental anguish, or the willful deprivation by a caretaker of services which are necessary to maintain physical and mental health. Elder abuse also includes neglect, exploitation, and/or abandonment of an elderly (ages 60+) person. The list of mandated reporters is very similar to that for child abuse and neglect including licensed physicians and surgeons and licensed or unlicensed residents and interns, registered and licensed practical nurses, nursing home administrators, nurse’s aides, orderlies, and anyone else paid for providing care in a nursing home, patient advocates, medical examiners, dentists, osteopaths, optometrists, chiropractors, and podiatrists, psychologists and social workers, clergy, police officers, pharmacists and physical therapists. Maryland requires financial institutions to report suspected financial abuse of an elder adult.
Bullying is another new and expanding area of mandatory reporting. The Alberta Education Act was revised in 2012 to requires students to "refrain from, report and not tolerate bullying or bullying behaviour directed toward others in the school, whether or not it occurs within the school building, during the school day or by electronic means," In other words students are required to report all alleged bullying by other students whenever and where ever it occurs. Bullying as is usual is defined very broadly to include "demeaning behaviour by an individual where the behaviour is intended to cause harm, fear or distress to one or more other individuals in the school community, including psychological harm or harm to an individual’s reputation."

The Alberta law is particularly notable because it requires students to report cyberbullying if they witness it, with penalties including suspension and expulsion possible for those who do not. It has been pointed out that the Alberta legislation is asking kids to do more than the law requires of Canadian citizens when they witness a crime on the street. The observer (of crime) is not asked to step in and stop it; if anything, police discourage it and recommend that they be called instead. While there might be a civic duty to report crime, there is no legal threat if a person doesn’t do so (subject to being an accessory).  
There are numerous "compulsory reporting provisions in the U.S., the U.K. and Canada related to funding of organizations deemed to be "terrorist". A typical provision is a requirement under the Canadian Criminal Code for anyone in Canada and any Canadian outside Canada to disclose to the Royal Canadian Mounted Police and the Canadian Security Intelligence Service the existence of property in their possession or control that they know is owned or controlled by or on behalf of a terrorist or a terrorist group. In the U.K. a mandatory duty has been applied since 2002 on professionals who suspect that money or assets are the proceeds of any crime. The purpose was to combat the phenomenon of ‘money laundering’. Since 2000 a mandatory duty has applied to all citizens to report on the preparations and activities of terrorists. Mandatory reporting is required if a person merely believes or suspects that another person has committed an offence under any of sections 15 to 18, and bases his belief or suspicion on information which comes to his attention in the course of a trade, profession, business or employment.

The Proceeds of Crime Act 2002 has increased the scope of mandatory reporting. It has introduced duties to pass on information about criminal proceeds with the result that professionals may have to report the criminal activities of their clients or third parties. Unlike existing duties to report, the obligations in the Proceeds of Crime Act apply to all criminal offences and therefore represent a significant change in the approach of English criminal law towards mandatory reporting.
Terrorism on the road is also a mandatory reporting requirement in the U.K. According to sections 70 and 172 of its Road Traffic Act 1988, a driver or a vehicle owner may commit an offence by not reporting an accident or road traffic offence.

Physicians have a long list of mandatory reporting duties. In Ontario there are eighteen different categories of compulsory reporting that extend far beyond child abuse situations. For example the Highway Traffic Act of Ontario requires that physicians report every individual 16 years of age or over attending upon the physician for medical services, who, in the opinion of the physician is suffering from a condition that may make it dangerous to operate a motor vehicle. Reports must be sent to the Registrar of Motor Vehicles, and include the name and address of the individual, as well as the medical condition that affects their ability to drive.
Ontario physicians involved in the care of mentally ill patients who are following community treatment plans, have specific reporting duties under the Mental Health Act, and its regulations. These obligations include providing the police with information pertinent to the community treatment plan. Where a physician issues an order for examination, the physician must ensure that the police have complete and up-to-date contact information of the physician responsible for completing the examination (including name, address and telephone number), and are informed immediately if the patient attends the examination or if the order is revoked for any other reason before it expires.

Every Ontario facility that treats a person for a gunshot wound must disclose to local police services the following: the fact that a person is being treated for a gunshot wound, the person's name, if known, and the name and location of the facility. Ontario’s legislation (which was copying U.S. initiatives) was quickly followed by the Canadian provinces of Saskatchewan, Manitoba, Qu├ębec and Nova Scotia.
Ontario physicians are required to tattletale on their patients and fellow doctors if they suspect cheating on the medicare system. When, in the course of professional duties, a physician has reason to believe that a person (either another physician or an individual) or entity has paid or conferred a benefit, or charged or accepted payment of a benefit in exchange for improved access to an insured health service, the physician must report the matter to the General Manager of the Ontario Health Insurance Plan. Under the Health Insurance Act, physicians are required to report instances of health card fraud.

Nova Scotia has a similar long list of mandatory reporting requirements imposed upon its doctors. They go one better with The Personal Health Information Act imposes a duty to report on physicians where there has been a privacy breach. An individual who has custody or control of personal health information about a patient (such as a physician) must notify the patient as soon as possible if the custodian believes that the information is stolen, lost or subject to unauthorized access, use, disclosure, copying or modification; and as a result, there is potential for harm or embarrassment to the individual. Creates a kind of damned if you do, damned if you don’t situation.
Mandatory reporting just keeps getting bigger and bigger. There is a problem; let’s pass a law to compel someone to report it. If a doctor already has to deal with 18 different mandatory reporting situations, one more won’t make much difference. So what if the doctor’s major stress point with a patient is no longer diagnosing an illness and developing a successful treatment program but rather is figuring out whether there is a mandatory reporting requirement. The patient on the other hand has to wonder if it is a relationship with a medical caregiver or a deputized cop.

One well meaning law by one well meaning law we are creating a society where everybody is a spy on everybody else. Totalitarian regimes in other times and other places have created spy-on-spy systems in one big swoop; we are doing it with a "thousand cuts".