Challenging the Public/Private Divide

Abstract

These fine books on aspects of law and criminality support platitude that crime does not pay -- except for lawyers, criminologists and insurance companies. Canadian criminals put in more time in jail per dollar stolen in other countries, although these statistics predate conviction of Alan Eagleson. Another statistic, even less likely to stir patriotic pride, is that Canadian youth, as Bernard Schissel points out, have highest per capita rate of incarceration of any country in world.If crime rates in Canada have dropped off in recent years, corresponding to diminishing ratio of youth in Canadian population, we still have a lot more lawyers. Prior to Charter of Rights and Freedoms, Canadians had less than half as many lawyers per capita as Americans but now we approach two-thirds of American ratio (Law and Markets 77-81) creating the danger of supply-driven and socially harmful increases in litigation (85). Virtually, all of contributors to Law and Markets bemoan Canada's increasing litigiousness; none defend very quality that brought one of Canada's most honoured citizens to jail. The Fraser Institute has brought together an interesting volume that seems to bear message of Adam Egoyan's movie The Sweet Hereafter; namely, that lawyers as ambulance-chasers are bad news. Law and Markets is concerned not with corporate criminality but with prospect that enterprising lawyers, instigating class action suits on contingency fees, will be able to dupe civil juries, and cut into profit margins. Indeed, Richard Hazelton, CEO of Dow Corning which filed for bankruptcy because of silicone breast implant suit, tells a cautionary tale for Canadian businesspeople.Contributors point out that jurors lack competence to assess scientific and technical evidence about toxic emissions, risks to health, relationship of causality and legal accountability; prejudices about dioxin spills may skew assessment of personal injury caused by spillage. The one exception to anti-litigation view of 17 contributors to Law and Markets is Mark Mattson, an environmental litigator, who argues convincingly that Canadian Environmental Protection Act needs radical revision or abolition. Mattson argues that federal government should either enforce environmental standards or leave private litigators like himself to engage in civil ligation against environmental polluters. Mattson recommends that public interest groups and their lawyers split fine levied on offending corporations or municipalities (135). While Mattson may conform to Fraser Institute's policy on deregulation -- It is government intervention that stands in way of a public right to protect community resources (136) -- his proposals would encourage litigation, diminish shareholder profits and raise citizens' taxes. If aim of Canadian economic regulation is, as Konrad von Finckenstein puts it, regulation, we are led to conclude that deregulation and user-friendly regulation are not same thing. If conflicting interests of Richard Hazelton and Mark Mattson reveal current contradictions of capitalism, we might also note that provinces geographically and ideologically closest to Fraser Institute (British Columbia and Alberta) are most litigious, while New Brunswick are Newfoundland are least litigious (158-9).An exciting challenge for Fraser Institute would be to take on human rights legislation that emerged after Second World War, arising from a combination of anti-Nazi principle, Keynesian welfarism and acceptance of wartime control of goods and services in public interest. Since human rights codes abridge several common law rights, of property and contract, specifically right of business to discriminate in favour of preferred employees, buyers, tenants and customers, Institute's views on James Walker's compelling account of role of human rights legislation in limiting racism in Canadian marketplace would be illuminating. …

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