Law Times

Law Times • June 19, 2017 Page 7 www.lawtimesnews.com Following the money BY PHILIP GIRARD F or both historians and lawyers, the maxim about "following the money" should be top of mind. Yet, while historians have exhaustive- ly explored the political narrative of the 1860s, few have looked closely at the role of British capital in promoting Confed- eration. Andrew Smith does so in British Businessmen and Canadian Confed- eration, providing an unfamiliar per- spective on familiar events. He notes that when colonial leaders raised the issue of union with London in 1858, it met with a frosty reception in the metropole. Yet, by July 1862, the Secretary of State for the Colonies, the Duke of Newcastle, was himself circulating a memo to Canadian and Maritimes political leaders encour- aging them to think about confederating in a larger union. What happened? The British North American colonies had an almost unlimited appetite for out- side capital, as significant investments in infrastructure were needed to exploit the region's natural resources. Some $100 million in British capital f lowed into the Province of Canada in the 1850s alone — close to $3 billion in today's money. Can- ada was a popular place to invest because it was believed that British provinces did not repudiate their debts. This contrasted with several U.S. states that had defaulted on their debts in the 1840s (although the City of Hamilton did default on a munici- pal bond in 1861). A good chunk of British investment was tied up in the troubled Grand Trunk Railway, which, unfortunately, did little to showcase the glories of Can- adian capitalism. Both Can- adians and British investors believed that building an intercolonial railway linking Halifax with Quebec would improve the position of the Grand Trunk and the British North American economy in general. In January 1862, the British North American As- sociation was formed in Lon- don with the avowed purpose of seeking imperial support for both the intercoloni- al railway and the union of the British North American colonies. BNAA members believed that the cre- ation of a Dominion level of government would provide better security for invest- ors than the individual colonies could. Its members represented some of the top banks and financial interests in London, and they lobbied hard all around the United Kingdom. Cities and chambers of commerce in turn bombarded the British government with memorials supporting both the new railway and colonial union, until it, too, began to see the two issues as fused. Hence, Newcastle's enthusiastic memo in 1862. While the shape of the BNA Act was largely determined by Canadian actors, the fact that important financial inter- ests in London were behind it made it an imperial priority. That sup- port also smoothed its passage through the Parliament at Westminster, complete with a constitutional obligation (s. 145) on the government of Canada to start building the Intercolonial within six months. In companion legis- lation, Westminster passed the Canada Railway Loan Act, by which the imperial govern- ment guaranteed the interest on a £3-million loan to the Canadian government to help build the Intercolonial. Had British cap- ital not supported this package, matters might well have turned out differently. Now, let's fast-forward a few decades for another example of following the money. Many trustees of small funds needed secure investments to carry out their duties in the 19th century. The legis- lative response in 1859 in Britain was the "Trustee List" of permitted investments, such as U.K. government bonds and bank stocks. Trustees who invested in these could not be found negligent. For many years, colonial governments lobbied to get their own bond issues included in this list, believing it would allow them to borrow on more favourable terms, but the British Treasury would not hear of it. Then along came the Boer War in 1899. The dominions duly sent troops to South Africa on request, and in return for their loyalty, the imperial government arranged for the passage of the Colonial Stock Act, 1900. Colonial government "stock" [the British word for bonds] would be included in the Trustee List, but on conditions. Canada had to agree that any Colonial legislation that appeared to adversely affect the interests of the stock- holder "would properly be disallowed [by the Imperial Government]." It could then use this power to oblige a colonial gov- ernment to sequester monies to ensure that the bondholders would be paid. In 1903, for example, Britain obliged British Columbia to make payments to a sinking fund regarding three-per-cent bonds ma- turing in 1941. In 1931, this was costing the province $100,000 a year. This power of disallowance survived the Statute of Westminster and was not formally abol- ished until 1977. Although never formally invoked, it exercised a restraining force on Canadian government budgets for many years, as shown in Shirley Tillot- son's forthcoming book Give and Take: The Citizen-Taxpayer and the Rise of Canadian Democracy. So, when you follow the money, Con- federation and Canada itself look like one big mortgage insurance scheme for Brit- ish investors. Happy Canada Day! LT uPhilip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca. Press freedom matters to lawyers BY LISA TAYLOR U .S. political journalists and the public they serve are, by any measure, in uncharted waters. Even prior to his election, Presi- dent Donald Trump began destabilizing, disregarding and dismantling well-established norms of press freedom. In remarkably short order, a country that for so long was in large measure defined by its First Amendment witnessed a groundswell of "fake news" allegations from a president who has referred to journalists as "re- ally disgusting" individuals who are, the president as- sures his faithful, "the enemy of the people." As Trump's efforts to thwart the very essence of the First Amendment — selectively blocking journal- ists from media briefings, refusing to answer difficult questions and employing staff who come up with "al- ternative facts" — become the new normal, U.S. media lawyers and journalism ethicists have reacted with predictable (and entirely reasonable) alarm about the president's subversion of the practices that are, at least in theory, protected by the First Amendment. These issues may seem removed from Canada. But they aren't. Given our responsibility to uphold the Charter of Rights and its associated values, Canadian lawyers should respect and defend press freedom — now more than ever, given what is unfolding in the U.S. A few short years ago, the collective gaze of many of those leading media ethicists was trained on Canada — or, more specifically, Toronto — as another mercu- rial and combative politician engaged in similar skir- mishes with Canadian journalists. The dominant view of those U.S. experts? While Mayor Rob Ford's efforts to manipulate and freeze out the media might be toler- ated in Canada, such maneuvering simply wouldn't f ly in the U.S. Obviously, the First Amendment remains intact, but its heft now seems more apparent than real. As a lawyer and media ethicist, I'd like to smile smugly and make a glib remark about the short-sightedness of those U.S. experts, but I can't, because there's far too much at stake. The bottom line is this: Even in a (rela- tively) stable democracy, press freedom and access to information is perpetually vulnerable and, sometimes, ephemeral. The victories are often partial, and progress isn't necessarily linear. While the current reality for most Canadian jour- nalists appears to be far removed from the animus experienced by an increasing number of their U.S. counterparts, the overall state of press freedom in Can- ada is coloured by myriad challenges to freedom of expression and access to information. Reporters With- out Borders, an international non-governmental or- ganization affiliated with the United Nations, recently revealed that Canada's commitment to press freedom continues to atrophy — it placed Canada 22 nd in the world on its press freedom index, down from eighth in 2015. "Several members of the press have been under po- lice surveillance in Quebec in an attempt to uncover internal leaks," the index's section on Canada explains. "A VICE News reporter is currently fighting a court order compelling him to hand over communications with his source to the Royal Canadian Mounted Police, while another journalist for The Independent is facing up to 10 years in prison for his coverage of protests against a hydroelectric project in Labrador." While not directly related to journalists' freedom of expression, a troubling trend in criminalizing activ- ities that might reasonably be seen as falling within the ambit of s. 2(b) of the Charter has come to light in my research. In recent years, there has been a resurgence in the charge of criminal defamatory libel, a Criminal Code provision that, as far back as 1984, was deemed an unreasonable prohibition on speech by the Law Re- form Commission of Canada. While the increase in defamatory libel prosecutions has been marked, these cases have largely been ignored, perhaps because, un- like other jurisdictions in which defamatory libel still exists, journalists are rarely the target of prosecutions. In 2016, the Committee to Protect Journalists re- ported that criminal libel laws in the Americas are used primarily to intimidate and "limit the debate on issues of national interest." That appears to be a common theme in Canadian cases — the use of the law is a move that amplifies the power imbalance between the individual citizen and the state; as such, it is the process, i.e., the act of inves- tigating and charging, that is the punishment. In this regard, even where charges are ultimately dropped, the individual dissenter has already paid a price, in part because of the powers police possess once engaged in a "criminal" investigation. For example, in a recent B.C. case, armed police searched a home and seized two computers, an iPad and an iPhone from the family of a man who was being investigated for allegedly defam- ing an RCMP officer. That investigation did not result in charges. The fact that all of this is unfolding at a time when we are witnessing unprecedented attacks on journalism in the U.S. should give us further pause, just as it should serve as a poignant reminder that even seemingly en- trenched rights can be swiftly obliterated. When that happens, citizens — not just journalists — are robbed of a cornerstone of democracy, as April Ryan observed on a recent edition of the CNN news program Reliable Sources. Ryan, an author and award-winning White House correspondent for American Urban Radio Networks, told the program's audience, "When you talk about the freedom of the press, it's not just about us, it's more about you." It is about you — or, more accurately, about all of us. For this reason alone, it is an important time to be crit- ically interrogating the rationale for, and nature and scope of, press freedom in Canada. LT uProfessor Lisa Taylor is a faculty member at Ryerson University's School of Journalism and the author of The Unfulfilled Promise of Press Freedom in Canada (University of Toronto Press, 2017). She is a former CBC journalist, a former practising lawyer and a member of the bar in Ontario and Nova Scotia. u SPEAKER'S CORNER COMMENT That's History Philip Girard

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