Wednesday, January 16, 2008

Guestblogging by KellF

My good friend Kelly got into it with a National Post "writer"...displaying the usual eloquence via rage that is usually my stock in trade. It's such a spot-on comment that I am reproducing it here, for posterity.

The article:

The comment:

This is the first article I've read by Karen Selick, and I have to say I was surprised and dismayed to discover at the bottom of the article that she is a lawyer. I felt this way because of the absurd language in which Ms. Selick has couched her argument, nay, diatribe.

Ms. Selick, have you read the actual judgment, or just a headline, before you went on your neoliberalist rant? As there is so much to respond to, I'll try to make this as orderly as possible.

Use of Terms in Article

1)  Using words such as 'victimization' to characterize airlines and passengers  who bear the extra costs for disabled persons is, to make an understatement, grossly inappropriate. The term 'victim' carries with it notions of an imbalance of power which causes harm to the less powerful of the parties amounting in some wrong-doing. It also (inappropriately here) congers up images of recipients of physical abuse. Common law, equitable doctrines and statutes arise throughout our legal history to mitigate the power imbalances in order to protect the less powerful. This history has culminated into such important documents as the Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Code. The individuals and entities which are negatively impacted by the re-distributive effects of these legal instruments are NOT victims. They have been given an opportunity to present their case, have been heard, and the values Canadians have enshrined in our legal instruments and common law has determined that the airlines are to bear the cost at issue. Due process combined with Canadian values does not amount to victimization.

Use of Analogies in the Article

1) Comparing the re-distributive effects of the above mentioned instruments to a thug steeling (even if for good reasons) is likewise comparing the Government of Canada to a thug. Taxation of wealth, through GST, Income Tax, capital gains tax and the like are means of providing services and redistributing wealth. It is a pillar of the Canadian ethos to provide for those who are in need. This value exists, and manifests, within  a democratic society, which is certainly not  tantamount to two thugs steeling, but to a system which theoretically provides a voice and agency for those in our society to make change and hold accountable decision-makers. If this system is unsatisfactory to you Ms. Selick, then I put it to you to critique our political system rather than the values it upholds in our legal traditions.

Legal Argument

1) Ms. Selick suggests that the legal entitlements to disabled-persons is to consume like everyone else. The actual legal entitlement is something quite different. Rather, "persons with disabilities have the same rights as others to full participation in all aspects of society and equal access to transportation is critical to the ability of persons with disabilities to exercise that right. Persons with disabilities have the same needs to travel as others - for example, for business, for pleasure, and for medical reasons - and should have the same travel options that are provided to others, such as those respecting mode of transportation, departure times, cost, quality of service and the ability to travel with friends, family or colleagues". It might be worth reminding Ms. Selick that the plaintiff in this case is dependent on a disability pension, which means her ability to save is in some measure determined by the government. To argue that she should simply save longer, or to argue that other working people may not have the opportunity to fly, is disingenuous given that she does not have the opportunity to 'work harder' or whatever it is that the neoliberalist agenda suggests that those in poverty ought to do to un-mire themselves from their own situation. If those who require disability pensions are not able to afford air travel because their salary does not allow them to save enough to pay for a necessary companion, then the government is choosing to disallow, wholesale, a segment of the population from those rights enshrined in our legal instruments.

The Result

While I disagree with the principles that you have outlined in your argument, and I agree in principle with the result of the CTA decision, I might suggest that the cost would be more squarely redistributed to the government itself rather than the private carriers. The issue is not whether the aircrafts themselves are wheelchair accessible (as in the recent VIA precedent), and so the duty to accommodate may arguably have been fulfilled. The right to full access and enjoyment by disabled-persons, in cases such as these, might better be born by the government as it would be distributed to the tax-paying population generally, and the access to such services would be administered in a reviewable way by an agency of the government. This cost is properly born by taxpayers as the provision of such opportunities is consonant with the values upheld in our fundamental ideas of human rights.

The "response":


Second, to kellf: 

I assume that by "congers" you mean "conjures" and that by "steeling" you mean "stealing". 

The rest of your comments are more  severely flawed, but would take longer to answer.  I'll get around to answering all of them, sooner or later, in my National Post column, which appears approximately every two weeks, but not on any fixed day.

That will allow my arguments to reach more people than the number who will bother reading all the way down to the end of this comment site. 

However, I've already dealt with arguments like your many times in the columns I wrote for Canadian Lawyer magazine from 1990 to 2006.  They're all posted on my website: 

Happy reading!

The response to the "response":

I applaud your use of 'Appeal to Ridicule' argument fallacy. Yes, my spelling was incorrect for two words - something which happened in my haste to post to your column. Hopefully you'll be able to see past the errors (although somehow I doubt you did - stating something is erroneous and not backing it up is another fallacy you've attempted to use: "Appeal to Authority"), and in this post be able to read through the exact words used to detect the sarcasm in the first sentence. Best of luck.


Oh, PS, I think you meant 'yours' in your last post.

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