Reviews/Critiques d’ouvrages Power without Law: The Supreme Court of
Canada, the Marshall Decisions, and
the Failure of Judicial Activism
by Alex M. Cameron. Montreal and Kingston:
McGill-Queen’s University Press, 2009.
Alex M. Cameron wrote Power without Law to correct what he views as the Supreme Court of Canada’s
(SCC) fundamental mistake of recognizing the legitimacy of aboriginal treaty rights in R v. Marshall
(1999). According to Cameron, the court erred in just
about every way possible: it misconstrued history,
used faulty interpretive methods, overextended its
authority, and violated basic judicial and constitutional principles. The result, Cameron contends, was
a judicial rewriting of history in support of treaty
rights that, in his view, do not exist. The political
and social implications were grave. ­Cameron contends that the Marshall decision fractured the peace
of communities (leading to, among other things,
rioting), placed the environment at risk, subverted
democracy, and ultimately wasted millions of dollars
in taxpayers’ money while destroying long-standing
regulatory regimes. On a broader level, Power without Law is an intervention into debates surrounding
judicial review, its proper sphere, and its justifiable
limits. Cameron concludes that the courts should not
involve themselves in policy matters, leaving these
to sovereign legislatures guided by long-established
constitutional principles. The recognition of treaty
rights in the Maritimes is, in his view, a case in point.
Power without Law is written in a tone of respect
and in a spirit of reasoned dialogue. I appreciate
its commitment to nuanced, principled, and careful consideration of important public issues and
will address this text in the same spirit. I make this
point because one should not mistake Cameron for a
right-wing anti-Native ideologue, but from my perspective as an historian, I find that his arguments are
deeply flawed as both scholarship and policy. There
are several different orders of mistakes to note.
First, the author argues that the SCC erred
in R v. Marshall because it ignored or invented
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history. Yet, the author’s own analytic methods
fracture the basic rules of historical investigation.
For instance, he does not appear to have done any
archival research. His references to primary documents are taken entirely from court proceedings and
so he assesses the documentary evidence outside
its archival context. Said differently, he appears
to mine individual archival sources selected by
someone else for what they can say in support of
his interpretation, instead of drawing conclusions
from the totality of primary sources. The author
appears unaware of key secondary sources on his
subject. He makes no effort to set his narrative in
the context of early colonial Maritime history or
the development of the northeastern frontier, but
instead focuses on the history of British constitutional principles (and, again, appears unaware of
key sources). Cameron sustains his interpretation,
at one point, using post hoc reasoning; he makes
no effort to understand the meaning of language
in its context, but instead appears to assume that
what words mean today is exactly what they meant
in the eighteenth century, the most unfortunate of
which is his assumption that the word “submission”
meant “surrender.” Combined, these mistakes lead
the author to an interpretation of Maritime history
that is, frankly, unrecognizable to anyone who has
studied Maritime history.
Second, other conclusions the author draws are
based on the same flawed interpretive methods.
For example, he concludes that there were no
conflicts between Native and non-Native communities in Maritime Canada before the Marshall
Decision. Yet, no references and no evidence sustain this contention. If he were to ask members of
Native communities exactly how peaceful their pre-­
Marshall lives were, what would be their response?
We do not know because Cameron did not ask. He
simply assumed all was well and then assumed that
an assessment he made on the basis of no evidence
was true. In another instance, Cameron confuses
technology with culture and in still another comes
very close to arguing that authentic Native culture
is incompatible with modernity. What is interesting
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130 Reviews/Critiques d’ouvrages
is that all of these flawed interpretations seem to
involve a failure to investigate the lives and culture
of First Peoples.
Third, Power without Law is laden with contradictions. For example, while decrying “judicial
activism,” the author lauds American judicial review
precisely for its activism. In another instance he
argues appellant courts should not revise findings
of fact made by trial courts and then faults the
SCC for not doing precisely what he contends it
should not do. In one further instance, he argues
that the 1760–61 treaties were surrenders binding
the Mi’kmaq to British law; in another he argues
that not all “tribes” signed the treaty and so not all
were bound by it.
Finally, as policy, Power without Law makes no
sense. The author claims to support reconciliation
between First Peoples and Canadians yet urges the
state to reject the very process that could promote
reconciliation. In his discussion of the fallout from
the Marshall Decision, for instance, he fails to note
that violence occurred because of non-Native and
state resistance to legitimate court-sanctioned, historically supported treaty rights. The key argument
here seems to be that the state should continue this
course of action. How does this promote reconciliation? Cameron’s response is that fishing policy
should be changed to give First Peoples access to
natural resources without treaty rights. This argument demonstrates only that the author has not
understood why treaty rights are so important to
First Peoples: they provide the basis for a form of
self-government that ensures dialogue and cooperation by protecting First Peoples from unilateral
action on the part of the Canadian or a provincial
state. Without such a protection, reconciliation is
an illusion because First Peoples will always be
dependent on a non-Native state that holds the
“trump” card.
Power without Law highlights the problems of
one-sided scholarship. My own sense of current
work on the rights of Original Peoples, their historical interaction with the colonial and then Canadian
and provincial states, and current court decisions is
that precisely the opposite is needed. I am not convinced that further “briefs” for the defense or crown
can productively advance either our understanding
of the past or the policy options that confront Canada
today. Instead, what is needed is thorough historical
research and careful consideration of the social
values and aspirations regarding what will be Canada’s necessarily ongoing relationship with Original
Peoples. Such research and such a consideration
cannot neglect the historiographic traditions of
Original Peoples or their political theory, but must
promote a vibrant interchange between different
perspectives on the same issue.
If this were to be accomplished, what would
happen? I could be wrong, but my guess is that we
might find that there is less that divides Canada from
Original Peoples than it would first appear. Despite
ongoing and emotional conflicts, my guess is that a
productive interchange could begin to address divisions and promote solutions that will in the longer
run make both Original Peoples and Canadians
happy. I also suspect that there is a great deal less
to fear from treaty rights and self-government than
some Canadians intimate. The next step in our scholarship, it seems to me, is to break from our existing
models that carry the divisions of recent court cases
forward and build new—and accurate—perspectives
that encompass the diverse realities of Canada’s
past, present, and future.
Andrew Nurse, Centre for Canadian Studies, Mount
Allison University
Canadian Public Policy – Analyse de politiques, vol. xxxvi, no. 1 2010
Reviews/Critiques d’ouvrages Regulating Flexibility: The Political Economy
of Employment Standards
by Mark P. Thomas. Montreal and Kingston:
McGill-Queen’s University Press, 2009.
Employment standards have been part of the Canadian labour market for well over a century. In
Regulating Flexibility, Mark Thomas constructs a
case study of legislated standards in Ontario, tracing
the long-run evolution of employment regulations
and their ability to contribute to workplace conditions.
The analysis begins with a political economy
framework of the dynamics of employment standards. Much of the focus is on employer-oriented
flexibility—the extent to which legislated standards
allow for workers to be employed under conditions
of interest mainly to the firm. Flexibility is an outcome that depends on the orientation of government
policy-makers, and on the relative influence of
employers and organized labour. Women and ethnic
minorities are identified as suffering disproportionate exposure to flexibility, as these groups are more
likely to be employed in sectors that feature rapid
turnover, weaker regulation, and greater informal
employment.
The core chapters of the book trace the evolution
of employment standards in Ontario from the 1880s
to 2004. As in other industrialized regions, standards
initially targeted women and children in industry.
These early interventions, Thomas argues, reflect
the inherently gendered process through which
employment regulations have been established. A
general 48-hour work week was introduced in 1944,
and the post-war years saw a continued focus on
wage and work-time legislation targeted toward both
male and female workers. Thomas argues, however,
that standards have remained overly friendly toward
the interest of capital, allowing “pockets of exploitation” to persist. These pockets have expanded since
the 1970s, with a rise in precarious employment and
increasing polarization in work time. Legislation
131
passed between 1995 and 2000 is presented as an
explicit attempt to roll back standards introduced
beginning in the 1940s.
Thomas concludes with a set of proposed reforms
to existing policy. One recommendation is to redesign standards in recognition of the prevalence
of non-standard employment relationships. In part,
this would involve extending regulations to workers
currently defined as self-employed, and introducing regulation into the informal sector through
provisions for joint liability for outsourced work.
Thomas also endorses increasing the minimum
wage, reducing work time, and providing greater
supplementary benefits and time reductions for
family and emergency-related leaves.
Regulating Flexibility is at its best in the three
chapters that document the evolution of standards
from 1880 to today. These provide detailed evidence
on the evolution of standards from the Factories
Act onward. The wealth of material drawn from
the Archives of Ontario offers insight into the
decision-making process that cannot be gleaned
from statistical reports and other readily available
material. Many of the legislative changes documented provide a useful starting point for detailed
case studies by future students and scholars. Even if
one does not share Thomas’s interpretation of these
developments, these chapters offer an important
contribution to scholarship on the history of public
policy in Canada.
Some of the arguments made about flexibility
would be more convincing if more carefully matched
to evidence from the labour market. The rhetoric of
flexibility in the 1990s is strikingly pro-business in
tone, but no evidence is provided to demonstrate that
the resulting legislation actually led to increased
work time. The polarization of work time presented
as evidence in favour of weak and failing standards
likely has much to do with changes in technology
and human capital formation that have raised worker
productivity and reduced the disamenities many
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132 Reviews/Critiques d’ouvrages
face in employment. These changes may motivate
workers in non-production employment to choose
a longer work week, and women to enter the labour
market on a part-time basis. Increasing heterogeneity in the nature of work clearly poses a challenge
for potential regulators, but it is unclear that the
identified changes in employment patterns have
made those employed at either pole worse off. I also
have trouble with the conclusion that “processes of
neoliberal labour market restructuring have intensified racialized labour market inequalities” (p. 25).
That recent immigrants and minorities often have
low status in employment is clear, but this may
have more to do with changes in the composition
of Canadian immigration, and how minorities fare
in education.
While many will agree that standards should
evolve to reflect changing realities at the bottom of
the labour market, the policy proposals presented
here would have benefited from more rigorous
analysis. More pay for less work comes with the
potential for large unintended consequences for the
nature of employment and production. Extending
regulation and inspection into unregulated sectors
is an expensive proposition, and raises a political
economy question that does not appear to have been
considered: Would the median voter choose to pay
for a more intensive regulatory regime? I suspect
that the answer is “no”; but a creative solution to
generate widespread compliance at relatively low
cost may well exist. There is an audience for this
book who is sympathetic to the plight of marginal
workers, but who will be skeptical of policy proposals that are not fully fleshed out. Further critical
reflection on these ideas would help persuade this
constituency.
C hris M inns , Department of Economic History,
London School of Economics
Canadian Public Policy – Analyse de politiques, vol. xxxvi, no. 1 2010
Reviews/Critiques d’ouvrages The Spirit Level: Why More Equal Societies
Almost Always Do Better
by Richard Wilkinson and Kate Pickett. London:
Penguin Books, 2009.
The Spirit Level: Why More Equal Societies Almost
Always Do Better is a landmark reference on the
health of populations. This new book by Richard
Wilkinson and Kate Pickett catalogues the accumulated research on income inequality.
The premise of The Spirit Level is that well-being
is patterned on something other than individual
wealth. Rather, physical and social health is spread
among particular groups according to a recurring
pattern—that of income inequality. Where there
are bigger differences in the distribution of wealth,
undesirable health and social outcomes are more
prevalent. Wilkinson and Pickett characterize
income inequality in two ways. In analyses comparing “rich countries,” income inequality is the
ratio between the average household income of the
richest 20 percent and that of the poorest 20 percent;
in the comparisons of US states, income inequality
is measured using the Gini coefficient. The authors
illustrate their argument regarding the importance
of income inequality using ten different indicators
of health and social well-being. According to this
model, addressing a common determinant addresses
the roots of multiple forms of disadvantage; by reducing income inequality, a society can reduce the
incidence and prevalence of various social problems.
In the book, the US and the UK are the most
common examples as they are among the most unequal of unequal societies. Albeit to a lesser extent
than in these other countries, income inequality is
a growing concern in Canada; recent research has
shown that income inequality in Canada increased
between 1990 and 2000 (Picot and Myles 2005, 9).
The implication is that income inequality is affecting
individual and community well-being—the spirit
level—in our society too.
133
Because of the breadth of the topic and the diverse nature of the intended audience, the authors
have necessarily abridged the research. The result
is an accessible reader on what is known about income inequality. This accessibility is necessary for
the stated goal of The Spirit Level. Wilkinson and
Pickett have assumed the task of raising awareness
about this body of evidence. They are convinced
that raising awareness is a key stage in a process of
change—that the evidence exists to be shared, and
that informed actors are empowered actors.
In describing their purpose, Wilkinson and Pickett engage the discourse of political action; they
name the political nature of their goal and, in so
doing, reinforce the strength of their contribution.
In the face of all the evidence about problems that
reduce quality of life, the narrative reflects a spirited
can-do, even must-do, attitude toward reducing
inequality: “Far from being inevitable and unstoppable, the sense of deterioration in social wellbeing
and the quality of social relations in society is
reversible. Understanding the effects of inequality
means that we suddenly have a policy handle on the
wellbeing of whole societies” (p. 33).
Yet, without disparaging either the inspiring tone
or the important connection to official policy action,
the references to action are ambiguous and somewhat
superficial. Based on the accumulated evidence,
income inequality is, indeed, a focus for policy at
multiple levels and by myriad actors. To “suddenly”
have a “handle” on this issue, however, would require
substantial additional information about successful
interventions. And while it is useful to know that the
level of trust is low where inequality is high, perhaps
the more actionable analysis would be to examine
where the level of trust is high and then ask why and
how. Admittedly, these details are beyond the scope of
an overview text like The Spirit Level.
In the preface to their text, Wilkinson and Pickett
propose Evidence-Based Politics as an alternate
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134 Reviews/Critiques d’ouvrages
title. “At this stage,” they explain, “creating the
political will to make society more equal is more
important than pinning our colours to a particular
set of policies to reduce inequality. Political will
is dependent on the development of a vision of a
better society which is both achievable and inspiring” (p. 264). The idea is that people will respond
to the evidence with political action—be it partisan
“Political” action or a civic “political” movement.
Undoubtedly, political will is necessary to begin a
process of change. Capacity and will to act are not
uncomplicated, however. The authors acknowledge
the challenge of vested interest; health promotion
involves changing attitudes toward, and access to,
wealth and power. Does their text present sufficient
evidence to convince people with power that their
control of power must be changed? Sometimes
significant change results from striking a chord
with a particularly responsive politician. However,
multiple contextual factors play into that success—
timeliness, ideology, other actors, presentation.
The focus of The Spirit Level is on presenting
available evidence about the impacts of income
inequality. This analysis is contextualized with
broader issues of environmental and economic
sustainability. Although the emphasis is not on
particular interventions to reduce that inequality, the
authors name a number of ways governments can
and do intervene to promote equality. A later chapter devotes considerable ink to discussing “more
fundamental changes” (p. 264) to social structures,
namely, employee ownership.
This discussion is a clear assertion about systems of production that shape social life into a
profit-oriented exercise. Employee ownership,
when accompanied with participative management
strategies, proposes to redistribute both income
and a sense of control, with potential benefits for
production and employee well-being. The authors suggest that shifting the system of ownership
and hierarchy will “address the concentrations of
power at the heart of the economic life” (p. 248),
thus addressing the inequality at the root of our
myriad problems. While the authors’ treatment of
this specific solution is uneven, the discussion of
employee ownership illustrates how the somewhat
disparate-seeming health and social outcomes can,
in fact, be associated with and addressed through a
single, albeit complex, intervention.
Wilkinson and Pickett present a convincing case
that income inequality is related to a number of
health and social outcomes. The Spirit Level is clear
on the implications of the evidence and the goal of
enabling political action. Dealing with the persistent
and problematic presence of inequality is a common
vision through which societies can build their spirit
level. In one volume, Wilkinson and Pickett have
both issued and responded to a challenge to raise
the level. Will we?
Reference
Picot, G. and J. Myles. 2005. Income Inequality and Low
Income in Canada: An International Perspective.
Statistics Canada Cat. No. 11F0019MIE – No. 240.
Ottawa: Industry Canada.
Emily Maddocks, Canadian Population Health Initiative, Canadian Institute for Health Information
Canadian Public Policy – Analyse de politiques, vol. xxxvi, no. 1 2010