Weekend of Politics

Stephen Harper was wandering around the market like a hobo, Al Gore won the academy award I predicted he would win and I saw the best political movie I have ever seen.

The Queen, starring academy award winning actress Helen Mirren, was a snapshot of the life of the Royals during a particularly rough period of time. The movie is centered around the sudden death of Diana Spencer, but it is really about the public role of very private public people. It makes sense, read it again.

There are those who rise to the occasion and give mediocre tributes to their father on national television. There are also those who just let the protocol officers handle them, forsaking their private grief for the public's. There are others who say "No," we will not be told how to mourn.

The irony of course is that the tale told in the movie is that politics and popularity polls drive the outcome of all public events. The Queen, despite her adamant stand that her family, and particularly her grandchildren be left to grieve on their own, eventually succombed to the advice given to her with those most in touch with the people.

I can't imagine losing someone close to me, but I really can't imagine having to do it under media scrutiny. The British Press are notoriously bad at life invasions, and at demanding answers to questions that really are totally irrelevant except for their constant demands for the answers. I believe now more than ever that what happened to Diana was a direct result of their prying eyes.

Now, I wouldn't describe myself as a monarchist. Hell, I wouldn't describe myself as anything short of a "congressionalist." The perspective taken in this film has helped me to understand a little bit about the very difficult life that the H.R.H. set lives and that as a society, despite the fact that some of us reject their role in our lives, we should be very thankful for the sacrifices they have made.

"Mr. Blair, I would like to point out that while I am your only Queen, that you are my tenth Prime Minister, with the first being Sir Winston Churchill, who sat in the very seat you currently occupy."

Wow. How emasculating would that be?

The Privilege of Parliment

I have a very thick textbook on my desk that very intimately describes the subtle nuances of Parliamentary Privilege.

The simple rule is that a member of the House of Commons is not allowed to be tried for a crime or sued in a court of law for any statement that he or she makes while engaging in debate in the House of Commons or in its proceedings.

The reason for the rule is simple: Parliamentarians must be able to speak their mind freely to ensure that the best policies are attained through the Parliamentary process and at no time should a Parliamentarian feel that they should hold their tongue during the search for that truth.

The privilege was never intended to set them above the law- it was intented to give them certain exemptions from the law so that they could execute their duties.

Maybe in 1860. Now we have a Parliament of animals.

What almost happened yesterday in the House of Commons made me ashamed to be a Canadian. Our Prime Minister, in a response to a totally unrelated question, got up on his feet and was prepared to read into Hansard "the fact" that the family members of a Liberal MP may be called as witnesses to an inquiry, and were the reason why the Liberals had changed their view on the Anti-Terrorism Act. It was in a newspaper, so it must have been relevant.

It was a premeditated, disgusting, racist, intentional and deliberate attempt to smear the reputation of the family of a political opponent to score points. In my opinion, the PM has never looked less Prime-Ministerial - worse than any other PM I can remember.

It reminded me of the allegations of corruption made by several Canadian Alliance MPs against former Prime Minister Jean Chretien (L - COME BACK). With no evidence of impropriety, they made serious allegations against him personally. None, however, had the stones to say it outside of the House of Commons- even when Jean-baby begged them to. He begged them to not be cowards hiding behind Parliamentary tradition and repeat their statements in the hallway. There were no takers.

And yes, I am aware the family can sue the news paper that reported the story. That is not the point.

The point is that I can call you a murderer in the House of Commons and absolutely no harm can befall me other than the finger wagging of the Speaker on a (ironically named) point of personal privilege. Even if I retract the statement, you can't get the guts back into the baby after it has already be cut open.

In other words, the letter of the rule is being used to defend actions that are not specifically contemplated by the purpose of the rule: Direct political smears against one another.

I think that Members of Parliament should have to be accountable for the things they say in both the political and civil arenas. Wow, what a bold standard for the people who are supposedly our leaders.

Wait Time, Guaranteed!!!

I am sorry I haven't posted in a while, it was because I was waiting in line to see my doctor. I learned the proper use of the word "ambulatory." Because I was ambulatory, I wasn't a priority.

In the 2005-6 election, the Conservatives promised to deliver on five priorities. The only one which was really important in my view was the wait time guarantee. I don't use health care all that much, but I look at it the same way I look at the fire hall - I don't ever want to have to use it, but when I need it, I want it to work quickly. Suffice it to say that it did not.

So, here is what I propose - I think that when the next federal election happens, ballot boxes should be placed in the emergency rooms of Canada's hospitals. You show up, speak to the nurse, and wait for your turn. I bet after waiting six hours in the middle of the night, not so many people would be voting Tory.

But, this must be Dalton's fault. Ontario is in charge of health care. Maybe, but Dalton didn't promise to cut my wait time and have it grow exponentially under his watch. The best part of constitutional wrangling is watching people pull the pin, toss the grenade, and then go and jump on it to claim responsibility for a file. Stephen promised, and hasn't delivered.

But what have the tories actually delivered on? Well, they cleaned up government - apparently. Even if that is true, I am the type who likes his government predictable and corruptible with relatively small sums of money. Yeah, they cut the GST. Whoopee - more money we can't invest in reducing wait times. Yeah, they ensured we are in a clusterfuck of a conflict for another three years. More patients to pad those wait times.

They claim they are making Canada's streets safer - by making things that are already illegal illegaller. Street Racing, driving under the influence of drugs, or (perish the thought) street racing under the influence of drugs. You might be making it illegaller, but when those idiots crash into a tree, they will have to wait in line at the hospital before they stand trial.

In 'Stand up for Canada' the now-government clearly established its priorities. I am not so naive as to think that a platform becomes policy. I am so naive as to think that I know why health care should remain the only priority. Want to bribe Quebec? Build ten new hospitals that aren't riddled with C-difficile.

But yesterday, the House of Commons was more like a Italian Soccer game. And over what? The Prime Minister thought it would be a good idea to read the news paper to people of Canada. This is what passes for debate in this country. For the first time since Mr. Dion took over, I agreed with every yell, smear, cry, heckle that I heard- a racially driven smear attack against an MP and his family. It is a good thing Ujjal Dosanjh was in the hospital (he had a heart attack last week) because he probably would have had a stroke had he been in the House. As you may know, Mr. Dosanjh was beaten within an inch of his life for opposing Sikh extremists in a very polite and democratic fashion. There are some things you just don't get to say, parliamentary privilege notwithstanding.

Yeah, he is standing up for Canada all right.

The Road to Kyoto...

Is paved with good Intentions - and it runs alongside another much more travelled road.

Liberal MP Pablo Rodriguez (L - Montreal's Answer to Evita) introduced a private members bill that calls on the government to honour its Kyoto commitments. It will be passed this evening with all three opposition parties supporting it. The Government will inevitably vote against it. Trust me when I say the Liberal Senate isn't going to hold it up very long.

C-288, an Act to Doom the Canadian Economy

Section 7(1) is the most troubling part. There are a lot of ways that a country could meet this requirement, but the only viable option for Canada are the clean development mechanisms found within the accord. That is code for "Pay Russia five billion a year for six years" based on 2006 carbon market prices of 15$ a tonne. Mr. Rodriguez has admitted as much at committee. A thirty billion dollar piece of legislation that has no actual environmental benefit whatsoever because the 'credits' could only be purchased as a result of a now defunct industry from the Soviet era. Glasnost, indeed.

Suffice it to say that I don't think a lot of thought went into this bill. I am sure Pablo doesn't have a problem with it, but when I have asked him very simple questions about Kyoto, I am fairly sure he has never read the Accord or has a rudimentary understanding of Canada's GHG mix. Just like most Canadians.

For the record, Ontario's manufacturing sector has already met its Kyoto targets based on the 1990 baseline. Very few people know or understand this. OPG, however, can't say the same thing. Despite economic growth, emissions in Ontario from the Manufacturing sector have gone down.

I find it very rich that the Liberals have been criticizing C-30 by noting that everything found in it could be effected under the strong regulatory authority found in CEPA, when this bill which they are now rallying around is completely unnecessary because all of the regulatory authority the government needs to enact this bill is found in, you guessed it, CEPA.

There are two separate public policy issues to consider:
1) Is it provident for legislation like this to gain Royal Assent when the Governor in Council which it binds doesn't support it; and

2) Is it provident for legislators to pass legislation that Canada can't hope to enforce through available domestic programs?

I think the answer to both questions, in our current system of government, is no.

In the case of the latter, the Government's own Directive on Regulating would preclude the regulations required under this bill from being constructed by virtue of the fact that they would fail the cost benefit anaylisis required by the program. This hasn't exactly stopped the government before, like when it declared CO2 as CEPA Toxic. You know, the stuff we exhale?

The bottom line is that this bill is a political move, and as we all know, good politics makes for bad policy. This is horrible policy because it was crafted without a plan. Luckily, like most other bills, the devil remains in the details. And those details will come out by way of Governor in Council regulations. While they are forced to enact regulations under the act, it doesn't have to be a good one, or one that accomplishes anything.

As it relates to the former, I think Mr. Rodriguez has unwittingly contributed to the discourse on something that I have believed for a long time - that the executive and the legislature can be divorced from one another, and that party control of one level of government can effectively act as a check on the other. While I don't love his method- he has proposed a bill, as a Parliamentarian, that would tie the hands of the executive, and force it to develop, implement and pay for a plan that would force Canada to meet its Kyoto targets - haphazardly random as they are. By definition, that is the constitutional separation of powers.

In so doing, he forces the government to respond to legislation- legislation which it usually has complete control over when it controls the legislature- and be administrators of a policy directive. TODAY, our political culture doesn't really allow for this and in many ways we are seing signs of resistance. That will make for a very difficult road for any future PMB process that is passed through a minority Parliament - particularly when that PMB proposes something that the government is vehemently against.

In the future, however, there may in fact be an actual discourse between the government and the legislature on bills of this type. This time around, very little constructive engagement occured as the Liberals used the Minister's appearance to speak to the merits of this bill to ask her retarded questions with political motives. They looked very clever on TV. This happens less frequently in the United States, but admittedly, it still happens. After 220 years, oversight is taken seriously.

The sham in Canada is that people believe that there is some discourse between the legislature and the executive. Bollocks. This problem is particularly pronounced under Secretary Harpov, but the PM has been too powerful for as long as I have been alive.

Round two of the discourse will be within 60 days of the Act comming into force when the Minister (whomever that may be) will announce their plan to meet the Kyoto targets. Round one had little substantive discourse at all.

Corporate Finance, 101

Last week I promised a rant to prove that I am not a socialist.

Let me state from the outset that I understand that a significant portion of the consolidated revenue fund (CRF) is obtained from the collection of corporate taxes.

As a precondition of my position, please note that I believe that corporate investment is the solution to many of Canada's problems, most notably environmental degradation and widespread poverty. Canada should do everything in its power to encourage responsible investment in Canada where it can have a say on how that money is invested. 40 Billion here is better than 40 billion in China where laws don't matter that much.

Corporations are often seen as the scapegoat to the country's problems. It is just so easy to blame the corporations for the pollution, for the layoffs, for the toxics in our blood...well, YOU own them. YOU buy their products. YOUR pension plan screams bloody murder when profits go down by an eighth of a point. Corporations aren't the problem. YOU ARE FOR INVESTING IN THEM!

Yes, there are bad corporations. There are also bad people. They are not all the same. The ones that are bad, should pay for it - just like murderers go to jail.

That said, I am steadfast in my conviction that corporations should pay no taxes whatsoever: Not a dime. I can hum and haw about what kind of corporations shouldn't pay taxes, but ultimately, companies that have more capital will create more wealth. If they create more wealth, we can tax it later. Corporations are the golden goose because they create jobs - and income taxes remain the primary source for the CRF. Keep a company liquid longer, and more people will have work. Period. If they decide to pay it out to their shareholders instead of re-investing it into their company, we tax the shareholder directly.

A corporation is a legal person. A person who is controlled by hundreds, thousands, if not millions of other people. Sometimes they are controlled by one person. Special tax rules apply to a corporation depending on its size, but ultimately, the rule is that a corporation has revenue, expenses, losses and profits - and it pays taxes on those in a similar way that we do.

Except, nobody owns me. If I was to give all of my after tax income away to my parents who "owned" me, should they have to pay taxes on it again? Nope, and they don't- it would be considered a windfall or a gift.

Shareholders pay taxes on their income. For example, I am a lawyer who writes restaurant reviews and from time to time buys and sells secured shares in Canadian companies. When I get a dividend check from a company, I pay taxes on that income - because the purpose for that investment was to make money. My parents didn't make me to make money- it was apparently to make me in their image...or something.

Right now, at tax time, the corporation gets dinged, I get dinged, and then (if the stock goes up in value) I get dinged again when I sell the shares (at a separate and special rate, might I add.) Remembering that I already paid taxes on the money I use to buy the shares, right?

Not the best way to attract investment in Canada. Not the best way to manage revenue either.

There are books written on how corporations avoid taxes, but they all say the same thing - corporations hold their assets in the way which is most effective and mitigating, reducing, delaying or prolonging taxation. They don't avoid anything.

If corporations didn't pay taxes, they would be in an excellent position to make even more money for their shareholders. They would do so by re-investing that untaxed capital and as a result, their SHARE value will go up. What I buy for $4 today will be worth $8 in two years, and so on...as the company acquires assets, ideas, employees and a market - they will continue to reinvest that capital and build wealth. When it ultimately gets paid to me through dividends or when I sell my share- I have the entirety of the tax burden. I entered into the company to make money, I absorb the tax consequences, and I alone am responsible. When I leave the company, I pay the taxes.

In the meantime, the corporate bottom line will remain in great shape. Having saved 22% or more a year, the company can continue to acquire, invest, invent and grow. Employing more Canadians (who will pay income taxes) and who will buy more sprockets. The market feeds itself.

The immediate effect on the CRF (consolidated revenue fund) will be momentary as the corporate taxes are replaced over time with income taxes and capital gains taxes. This plan of mine is not a tax cutting scheme at all. It is a tax deferral scheme- in that no taxes are incurred until the owners get paid. By taxing it at time T1, by the time the income gets to the share holder at T2, the value is lower, and as a result, the income tax or capital gains tax is lower. The net effect is zero, but for the interest which accrues between T1 and T2.

It is also my choice as an investor to use those gains (or losses) as my own assets. If I want to hold the investment in the company forever, that is my choice, and the government doesn't have the right to encroach on my income until it actually makes ME money. That is the principle of taxation lost on revenue seekers in government.

Then, someone in Europe will go "Holy Cow! We can invest in Canada and pay no taxes, take advantage of free health care and one of the most educated workforces in the world which is on the doorstep of our largest market?"

The caveat, of course, is that the capital can't leave the country. If they try to repatriate it somewhere else, the whole model falls apart. The condition is that companies can only benefit from this tax holiday if they are Canadian owned and publicly traded. Companies already have subsidiaries in Canada now to take advantage of all kinds of programs, this isn't that much of a stretch considering the benefit. in 2007, most companies don't really care who their shareholders are, either.

Corporate taxes represent many things. For starters, they represent a revenue source for accountants and lawyers across the country who openly take advantage of the complexity at the peril of their corporate clients, and subsequently, their shareholders. The relatively high rate of corporate income taxation is sympton of a a bigger problem- a loophole driven system which has four principles which are routinely twisted beyond recognition:

1) Income is the difference between revenue and expenses;

2) Allowable expenses are categorized, not listed;

3) Corproations are a mechanism to increase revenue; and

4) The Act is to be interpretted narrowly.

If the income tax act was limited to twelve sections on eight pages, over 10,000 employees at the CRA and Finance and 18,000 part time employees at tax time would have to find new work.

Shocking how they routinely advise Ministers against simplification.

Happy 100 Posts!!!

YAY. 100 Posts. Woohoo.

So, I think the next time the PM brings up the fact that Mr. Dion has a dog named Kyoto, this should be the response.

"Your Minister of the Environment's cat is named Thatcher. I believe in the Environment, your government believes in a neo-conservative ideologoy. I wouldn't be surprised if you named your cats Harris and Klein."

Zing.

Stand-Up Committee on C-30

GONG!

The voting composition of the special committee studying bill C-30 is five tories, four liberals, two BQs and Nathan Cullen (NDP - Smartest guy in the room, make room for four horses) of the NDP. Their job is to review and rewrite the Government's Clean Air Act. One party wants to take an eraser to it. One party wants to take a pen to it. One party wants to add the word "provincial" to it, and the last one wants to leave it alone.

There are rumours that the Government has made a deal with the NDP to get some key amendments on the bill including hard caps on LFEs, a commitment to Kyoto numbers and fixed regulatory authority. Liberals say they don't need to amend CEPA to do any of this, and they are correct- the proposed changes have questionable constitutional implications. Not a sexy argument for the remarkably underinformed public, but what is correct is totally irrelevant at this point.

Let me tell you why that CAN'T work without the support of at least one other party.

5 tories + 1 NDP = six

4 Liberals + 2 Bloq = six

Chairs of Standing Committees can only break ties in favour of a) the status quo - in this case the bill as introduced to the committee or b) extending debate. The first amendment to the act proposed at clause by clause from any party will result in a stalemate.

The problem with breaking the deadlock is that the NDP is steadfast in its opposition to provincial equivalency agreements found in the amending act. In simple terms, provincial equivalency is the federal government's way of saying "we set the target, and if you get there without us, our regulations don't apply in your province." For obvious reasons, the BQ favours of this approach. The NDP believes in 'one standard to regulate them all.' I could staunchly defend both positions from different industry perspectives.

The Liberals do not want to see this act passed. Period.

If ideology was the test, some individual amendments proposed by the NDP would pass with the support of the BQ (like the aforementioned hard caps). Since this is Parliament, and logic no longer applies, there may be objections to any amendment proposed by the enemy. Alternatively, the very high level of debate we have seen thus far (Tastes great, less emitting) may continue and NO amendments will be accepted. Then Mr. Dion gets to have his election on Kyoto.

So, what does that actually mean? The Committee has committed to clause by clause review of the bill for the week of the 19th of March (the day before the budget). The NDP will prop up the government for a while, and once the budget is passed, the numbers in the so-called "alliance" will quickly change to 7-5 and the committee's work will be quickly completed.

And Jack will be out in the cold again. Brrrrr.

BTW- I have flipped back and forth on the Al Gore for President in 2008 for four months. Inside information from fundraisers is "No way," but with Mr. Gore expected to announce the "S.O.S. Earth" concert series tomorrow in London, I am swinging back to yes. He gets more free press coverage right now than I have ever seen, and he doesn't have to declare until December to stay on the New Hampshire ballot. His buzz remains strong. And, by the way, when you have already run for president and gotten 50 million votes, your infrastructure is already in place.

The difference between Gore and every other democratic candidate is that he a) actually has a reason to run for President (everyone else seems to be saying - I am the best person to be the steward) b) has no Iraq baggage and c) draws from the strengths of every other candidate the second he declares - starting with Hillary's money- her biggest and most important advantage. More on Hillary-08 another day, but for now - Al Gore remains the most potent political force on the planet on this issue.

Even Rusty (C- Paris 07) is quoting him for Christ's sake.

Astro-NAUGHT

So let me get this straight -

There is a female astronaut who was arrested because of a plot to murder a second female astronaut because of a love triangle involving a third astronaut.

I'm sorry, the story here isn't the plot, it is the fact that there is a guy living the dream of all guys and has two women fighting over him.

Not only did he have a threesome, but he did it IN SPACE.

Wow.

Canadian Banks and the need for change

There are very few things that Mr. Layton (NDP - Moustache Ride) and I agree on- his most recent assault on Canada's banks are one.

First things first- Interac fees are ridiculous. I think we should amend section 8 of the Currency Act to ensure that individuals who elect to not use hard currency are not discouraged from using a secure procedure for the transfer of capital. The banks (not Interac) nail the stores with a fee, who in turn pass that cost along to customer with a mark-up. They shouldn't be allowed to. They call it "infrastructure" when it really just cuts down on the number of people they need to count money. Stores can elect to not offer the service if they so choose.

I have believed for a long time that the institutions granted their charter under the Bank Act have had far too much coddling from the Federal Government. They have a legislated oligopoly and have made hundreds of billions of dollars since their initial charters were granted. They were granted those charters under a series of conditions, including "acting in the public interest." I believe that they have been failing in this area for as long as I have had my own bank account.

On the one hand, they whine that they need to be bigger to compete internationally. On the other hand, they complain that the cost of setting up their infrastructure for electronic banking is prohibitively expensive. On yet a third hand, they want to be able to sell insurance out of their branches, thus ensuring that they need to add another level of very costly infrastructure.

Why don't we let them print money- it would be easier and faster? Except, we already do. As very few people in Canada know, chartered financial institutions are allowed to lend out more than their holdings. Yes, you heard me correctly. Mel Hurtig has been lamenting this for years and he is right.

I concede that the financial services sector is one of, if not the most, regulated sectors of the economy. I will also concede that the costs associated with physical branches are going up. I will also concede that the banks make a billion dollars a year in profits. That is AFTER their re-investment of capital into their own infrastructure - the cost of which is what they use to justify the service fees they charge you. The cost of which is an ASSET for them.

The banking business model is supposed to be predicated on providing a secure and reliable third party mechanism for holding capital and secured lending that is trusted by the public. They are allowed to lend beyond their holdings because your average mortgage is going to collect 2.5 times its average value over its life.

Banks are supposed to make money on the capital that they lend - on favourable terms for secured property (mortgages) and on risk based terms for less secure investments (start up capital, seed money). The thing is - the greater their holdings, the more money they can lend out. So, they should want you to keep your money in their institutions, right?

And yet, they try to nickel and dime you at every chance they get. A service fee here, a monthly fee there - if I was to make a physical deposit at my branch, it would cost me $1.50. I am too smart for that, so I make sure that I don't get dinged with service fees. Unfortunately, the people who get nailed the most are the poor (not maintaining a minimum balance) and the elderly (who like to go into the branch and talk to a real person).

So, what would I do? Well, if I was Finance Minister, I would write a letter to the Presidents of the major banks and say "You have two years to stop gouging customers. If you don't, I will act to make sure that you do." There are three perfectly plausible threats that I could lord over the heads of the banks:

1) I would grant more charters, and let people who want in on the greatest racket in the world to become banks and benefit from the massive federal government protection that the current banks have; or

2) I would allow foreign competition; or (and I love this one)

3) I would threaten the creation of the "Bank of Canada." A bank that would ensure every citizen in Canada could have an no cost account. An account against which no other financial institution could levy a service fee under threat of sanction. This bank would have no service fees, monthly fees, or interac fees and it would be allowed to lend out its holdings under the same terms as any other bank to a) Canadian citizens and b) any corporation defined by the Income Tax Act as a "Canadian-controlled private corporation." The key difference between this bank and the others is a) there is no limit on its holdings and b) it wouldn't be designed to make money - it would be designed to break even.

Otherwise, all the same rules for secured lending would apply. Except consumers would have a new option to consider. PetroCanada made shitloads of money.

Very. Tough. To. Compete. With.

Ultimately, my conclusion is this - You are already a heavily regulated industry and yet the public confidence in you in very low. You make record profits for the people who can actually afford your shares but you don't provide a public service in the true sense of the word "public." You have had the chance to provide this service, with the protection of the government, for 100 years and over time your business model has changed. It is now geared at cost recovery for services rather than understanding that your expenses are not to be passed onto the ordinary consumer. They are to be passed onto the lendees - the people who want to borrow your money and can accept the terms you have for lending it.

Those services represent the COST for being allowed to lend money securely under the protections afforded under the Bank Act. That is not a COST you can pass on to ordinary Canadians. It is the "public" part of the service your charters contemplate.

Will this drive up interest rates? Maybe, but that will be a short term problem because:

a) The banks are still supposed to be competing with each other and they are still pegged to the national rate;

b) The banks want to lend out as much as possible to maintain profitability;

c) The ordinary consumer will have access to an institution that can lend them the money. As a result, only large corporations and risky investments would have to turn to the banks unless the banks could compete with the new federal bank; and

d) The people who need the money the most can use other government programs to absorb and account for the additional interest payments. For example, the ability to write off interest that is incurred to run a business.

If you think I am a socialist, don't worry- I am not. Next week I will discuss how Corporations shouldn't pay any taxes at all. None.

WPPI can work!!!

Photoshop is as good as a cartoonists' pen...

The SCC has screwed it up again...

ZOMBIES CAN'T TESTIFY

Warning: this post has nothing to do with politics, zombies or anything all that interesting to anyone who doesn't have a copy of Sopinka on Evidence on their bookshelf.

There has been a hole in the common law for some time. It is the difference between discoverable evidence, admissible evidence and compellable evidence. This case makes this the hole bigger, not smaller.

The law of hearsay evidence in Canada is guided by two key principles found in the Starr test. Hearsay evidence is admissible under an exception to the hearsay rules if:

a) it is relevant; and
b) it is reliable.

In a five plus one v. three decision this morning, the Supreme Court of Canada has decided that evidence obtained under post-hypnosis is no longer admissible as evidence in a court of law.

This is a bad decision for policy reasons, but it is also a violation of fundamental justice. That is because evidence flows both ways: to help convict a defendant and to help exonerate him. In the case at bar, it was evidence that helped lead to the conviction of a defendant - along with a mountain of other evidence. Now he is getting a new trial with this piece of evidence excluded.

What this decision effectively does is prevent an accused from using a statement obtained by the police under hypnosis (a fairly common tool for finding and clarifying evidence) that exonerates them as a prior inconsistent statement (a standard hearsay exception) if the witness in question is called as a witness for the prosecution. Plain and simple: unconstitutional - an accused should be allowed to adduce any and all evidence that directly clashes with evidence adduced by the Crown. Let the 'trier of fact' assign weight to the evidence - but ultimately, the discretion to consider it should rest on its probative value, not scientific uncertainty.

Of course, the Court screwed that up too. They say that this type of evidence is, holis-bolis, unreliable. I call bullshit. If for no other reason than I have seen people be hypnotized and then give a completely different account of a series of facts - and these are people who have nothing to gain by providing their evidence. People are people- and sometimes they just get stuff wrong.

The minority view is the correct one, and that hypnotically obtained evidence, like all evidence, should be examined and probed on a case by case basis to assure that the best evidence is admitted. If it is found to lack probative value, the other side will discredit it in cross-examination.

This is not a call for all witnesses to be hypnotized before taking the stand - far from it - because every person reacts differently to the procedure. This is a call for Parliament to examine the ramifications of this decision and understand that not all evidence is the same - and that the test for hearsay ought to be applied to all evidence.

Evidence should be admitted if it has probative value as to its relevancy and it is reliable as delivered. The hearsay exceptions are for pieces of evidence which can't be cross-examined. You can test the reliability of any individual piece of hypnotically obtained evidence without making the trial about how hypnosis is fraught with moral, ethical and evidential problems.

Or you can just call the person who put the person under the trance. If it is a vampire, then you can exclude the evidence. PHDs and upstanding professionals shouldn't be treated like vampires.

A clear statement from a witness that "Mr. X did it" has to be supported by some other evidence to lead to a conviction. A statement, obtained under hypnosis, that says "Mr. X was wearing a green shirt" when other evidence suggests that the murderer wasn't wearing a shirt allows for an accused to bring about a reasonable doubt as to the veracity of the witnesses account.

Hell, even a statement that says "Mr. X didn't do it" has value - as a prior inconsistent statement.