Monday, December 17, 2012

Crosswalk Safety: Better Enforcement

Given some of my posts on the need for improved crosswalk safety, I was concerned to hear the recent statement by the Halifax Regional police that, despite a spate of recent crosswalk fatalities and injuries, they do not plan to increase enforcement of crosswalk violations, but will focus instead on educating the public.  It was even more concerned by the statement by Toronto police that the answer to crosswalk accidents is for pedestrians to wear lighter clothes.  This was recently echoed by one Chronicle Herald columnist.

Public education must go hand in hand with enforcement. In order to be effective, laws must be both well understood and well enforced.  The two are mutually reinforcing.  Enforcement without education is unfair, because people cannot reasonably be expected to follow laws they are not aware of or do not understand.   And education without enforcement is somewhat toothless: some people will ignore laws unless they are held to account for breaking them.

I've had more than one person suggest to me that crosswalk safety is merely a matter of common sense and personal responsibility.  Pedestrians know they are at risk, and so they should take every precaution, including wearing lighter clothes.  That certainly seems to be the view of some people within the police department.

I agree that common sense should prevail, and that all users of the road should act with a regard for their safety and that of others.  Pedestrians should look both ways before crossing the road, and should make sure drivers see them and have time to stop.  The fact you had the right of way will matter very little if you are seriously hurt or even killed.

Similarly, drivers need to be exercise caution when approaching all intersections, and be on the lookout for pedestrians waiting to cross as well as those already in the crosswalk.  It is sometimes difficult for pedestrians to tell whether drivers have seen them and intend to stop, so it helps if drivers make eye contact with pedestrians and make clear they have seen them.

A little courtesy doesn't hurt either.  As a pedestrian, I always try and acknowledge drivers that do stop with a friendly wave.

So I agree that Crosswalk safety starts with personal responsibility.  However, as recent events demonstrate, when people are breaking the law and endangering public safety, it doesn't end with personal responsibility.  All the common sense in the world won't save you from other people's lack thereof.  That is why we have laws. 

To that point, I was recently out for a walk with my one year old son, pushing him in his stroller.  We came to a marked crosswalk across a two-lane street near our house.  I looked both ways, and there was no traffic coming in either direction, so we started across the crosswalk.  We were almost halfway across, about to enter the far lane, when a car came speeding around the nearest corner, headed towards us on the far side of the road.  I could see the driver was not going to stop, so I did.  She flew past us about a foot away without even a glance in our direction.  We had been well into the crosswalk when she turned the corner, so I don't know if she simply didn't see us (I'm a big guy, and the weather was good) or if she simply didn't care.  I'm not sure which is more frightening.  I was a little shaken up and didn't get the woman's plates to report her.  I should have.

Had we been a foot further into the road, she would have hit my son in his stroller.  And although I'd exercised common sense and personal responsibility, that would not have mattered had by son been run over.

Where other people fail to exercise common sense and personal responsibility, we need laws to hold them accountable.  But laws only work if they are enforced.

Yet it seems that in Halifax and elsewhere, crosswalk laws are rarely enforced unless someone gets hurt or killed.  It is apparently uncommon for police to ticket either pedestrians or drivers for crosswalk violations unless someone gets hit. And the police seem to have little appetite for an actual enforcement campaign.

Of course, laws can't be enforced unless the police know they are being broken.  I'd encourage users of the road to report crosswalk violations when they see them.  I've certainly heard stories of the police citing people for crosswalk violations based on citizen reports.

Reporting more incidents will also give police more accurate info on just how serious the crosswalk safety problem is.  To that end, I am glad to hear that Halifax police may be getting a traffic accident mapping tool that enables them to identify hot spots.  Of course, the tool will only be truly effective if they then take out their ticket pads and target those hot spots with targeted enforcement campaigns.

At the end of the day, while education is important, better enforcement can serve an educational function as well, a high profile campaign of enforcement can itself be a very effective form of education, reminding both motorists and pedestrians of their responsibilities to themselves and to each other.

Wednesday, December 12, 2012

Urban Development: Does Halifax need to Grow Up?

It has become painfully obvious to many if not most observers that Halifax has a sprawl problem.  The Halifax Regional Municipality covers an area almost the size of Prince Edward Island, and the city seem to be spreading out rapidly to fill those borders.  The Halifax Regional Municipality has been experiencing significant population growth in its suburbs, while population in the downtown cores of Halifax and Dartmouth continues to stagnate.

The sheer size of the HRM makes our population density unusually low, at 71 persons per square kilometer.  However, even when we look at urban areas of HRM alone, the density is 1106.4 people per square kilometre, which is still significantly lower than comparable cities like Kitchener-Waterloo, London (Ontario) and Regina, slightly less than Victoria, and far below densities of comparable great worldwide.  If Halifax aspires to be a great city, then we need to start thinking like a great city, and growing in a more focused, sustainable way.

HRM's Regional Plan, which is supposed to set the framework for sustainable growth in the HRM for the next 25 years, adopted a target that 25% of population growth should take place in the urban core (essentially Halifax, Dartmouth and Bedford) while 50% should take place in the suburbs, and 25% in rural areas.  While some would argue that set the bar too low for urban growth, in the first five years of the plan we fell short of even that modest goal, with only 16% of population growth taking place in the urban core, while 56% took place in the suburbs and 28% in rural areas.  In other words, the city is expanding into the surrounding countryside at a rate that is not meeting even a modest target for sustainable growth.  This makes Halifax a textbook example of sprawl.

What is sprawl and why is it undesirable?

Sprawl has been described as a "land use pattern of single-use zones, typically made up of subdivisions, office parks, shopping centres’ strung together by arterials and highways."  While it is sometimes referred to as "suburban sprawl", the problem is not suburbs themselves, but rather the separation of residential, commercial and retail areas into large, isolated, single-use zones which can only be reached by driving, rather than compact mixed-use walkable neighbourhoods. It is typically characterized by lower population density.

Sprawl is problematic from a number of different standpoints, notably its financial and economic costs, its health and environmental impacts and its social dimensions.

In terms of financial costs, sprawl requires a municipality to provide services to the same number of taxpayers over a larger area.  This requires not only more infrastructure (more pipes, more roads, etc.) but increases soft costs as well: police officers, garbage haulers, and buses, all have to cover a larger area, resulting in increased costs to the taxpayer.

This has a very real impact on the municipal budget.  A recent study commissioned by the HRM shows that changing the urban growth target from 25% to 50% of the population increase would save the municipality  $1.7 billion over the next 20 years. 

In other words, to continue to service sprawl, the HRM will either have to charge higher taxes, or decrease service levels just to break even.  Sprawl imposes such high costs, that observers have linked it with municipal bankruptcies in the US and elsewhere.  It has been further linked to higher housing costs and even as a partial cause of the foreclosure crisis in the US.

Sprawl also imposes economic costs.  For example, because of it's dependence on single-occupant vehicles, sprawl is also associated with gridlock, which costs the Canadian economy $10 billion a year.

Spawl is also associated with a number of environmental and health problems.  An ever expanding city can result in loss of wildlife habitat and greenspace, which is essential for both environmental and human health.  It contributes to depletion and degradation of water sources.  The focus on single occupant vehicles increases reliance on fossil fuels and greenhouse gas emissions.  And it increases air pollution and sedentary lifestyles, leading to rising health problems and costs.

Finally, sprawl is associated with certain social problems, including loss of community, income inequality, and diminished social services.  Sprawl has been accused of lacking "quality of place" and creating social disconnection.

What is density and why is it desirable?

Our HRM Alliance defines density as "the number of people per area".  Statistics Canada defines an "urban density" as 400 people per square kilometer. Spacing Magazine identifies some of the benefits of density as follows: "Residential density[...] is one of the most important characteristics of urban areas. High densities create vibrant streets, support main street commercial areas, and encourage walking, biking and transit use."

Denser cities avoid many of the problems created by sprawl, as detailed above. Municipalities are able to keep costs (and taxes) down by providing services over a smaller area.  More walkable cities avoid many of the costs of gridlock, and reduce air pollution and greenhouse gases.  Wild spaces and water can be preserved, providing habitat for wildlife, as well as recreational opportunities for people.  Finally, denser cities often provide tighter, more closely knit communities and neighbourhoods.  This has led some observers to link density with increased innovation.

Why is sprawl becoming a hot-button issue in Halifax?

Addressing the issue of sprawl has created strange political bedfellows.  42 groups as diverse as the Downtown Halifax Business Commission, the Ecology Action Centre, Fusion Halifax, the Heart and Stroke Foundation, the Halifax Trails Association, and the YWCA have banded together as the Our HRM Alliance, dedicated to making the HRM a more livable and sustainable place.  In particular, the group has been working through the Regional Plan five year review process to try and strengthen the regional plan to more comprehensively address sprawl through seven solutions, including green belting.  They believe that implementation of these solutions will address the problem of sprawl, and help Halifax grow more densely and sustainably.  Groups like the Alliance have been doing a great deal to raise the profile of sprawl as a topic for public discussion.

The issue of sprawl came to a head recently when regional council rejected the application for the 48 story Skye Halifax development.  If built, the two towers would both have stood 150 metres (492 feet) high, making them the by far the tallest buildings in Atlantic Canada.  Council rejected the development on the advice of staff and the design review committee, who found that it did not meet the development rules set out in the HRM by Design rules for downtown development.

Many opponents of council's decision to nix the proposed building suggested that allowing Skye to proceed would have been one way of addressing sprawl.  Many questioned the HRM by Design rules, and suggested Halifax needs to "grow up" and build taller buildings.  Despite this, many vocal opponents of sprawl, and proponents of downtown development, such as the Downtown Halifax Business Commission, supported council's decision. So while many agree on the need to densify and combat sprawl, there is a lack of agreement on whether skyscrapers are part of the solution.

Won't taller buildings help?

While it would seem obvious that building taller buildings is one way to increase density and address sprawl, real-world experience suggests that is not necessarily the case.

On the one hand, New York City, which has 5,818 high-rise buildings, of which 92 are over 600 feet, is quite a dense city by North American standards, with 10,518.60 persons/square kilometer  By contrast Paris, which has only 14 buildings over 492 feet (of which only 8 are over 600 feet).  Paris has used height restrictions to confined high-rise development to specific areas of the city: in most of Central Paris, there are few buildings over six stories high, with the notable except of the Eiffel Tower.  Yet, Paris, with 21,196 persons per square kilometer is around twice as dense as New York.

Houston, which has far fewer development restrictions than most large cities, has 360 high-rises, and 31 skyscrapers over 492 feet.  Yet despite having more tall buildings than Paris, Houston has a major problem with sprawl, with only 1,505 persons per square kilometer.  Similarly, Calgary has few development restrictions and has 14 buildings over 492 feet.  Yet Calgary as a City has a lower density than Houston, at 1,329 person/square kilometer.  It's urban density is not much higher, at 1,554.8 persons per square kilometer.  Calgary is having serious problems meeting the costs of servicing an ever expanding area.  The problem is so serious, that Mayor Nenshi and the fire department have said the City is having difficulty maintaining municipal fire services to meet national standards.

Closer to home, Halifax's North End is one of the densest neighbourhoods in Atlantic Canada, with a density of 5,888 people/square kilometer, despite having very few tall buildings at all.  Another one of Halifax's densest neighbourhoods is Schmidtville, one of its oldest, and most historic.  Schmidtville is a compact, mixed use neighbourhood

So density is not merely a function of height, and there are ways to achieve density without building skyscrapers.  Some experts have suggested that mid-rise development, and not towers, are the key to densification.   Toronto has achieved significant population growth in its urban core in the last several years, due in part to significant mid-rise development, although this has not been without controversy in some neighbourhoods. However, the question becomes how high we go, and what other considerations we want to balance height against.  Is the sky the limit, or is there an optimal height for achieving density?

There is no question that if Halifax is to increase density and combat sprawl, taller buildings will be part of the mix.  However, the experience of other cities suggests that skyscrapers are not necessarily a panacea: the solution will have to be more comprehensive.  Many cities have been able to develop densely without many tall buildings, and in some cases with significant restrictions on height.  Many cities that have allowed tall buildings still have a major problem with sprawl.  Many mid-rise buildings may make a greater contribution than a few high-rises.

Generally speaking, it is the cities that place the least rules around development (like Calgary and Houston) that have the biggest problems with sprawl, while cities with clear, considered development guidelines (like Paris) tend to develop more densely.  Great cities aren't just grown; they are planned.  Whether Halifax becomes the great city it has the potential to be will depend how well our regional plan, downtown plan, and development rules address issues like height and density.

(This post is the first in a series, and is cross-posted with Spacing Atlantic.  In future posts on development in Halifax, I will look at: the rules governing development in Downtown Halifax; the rules around suburban and rural development in Halifax; business and industrial parks like Bayers Lake and Burnside; commercial taxation; and other related topics)

Friday, December 7, 2012

Who Owns the Stanley Cup?

With the news that NHL lockout negotiations have broken down, there is an increasing chance the Stanley Cup finals won't take place this year, leaving hockey fans wondering how they will get their hockey fix.  It has also left some fans wondering why it is that the NHL controls the Stanley Cup at all.  If they aren't going to award the trophy, shouldn't someone else be able to play for the "Dominion Hockey Challenge Cup"?  Why does the NHL get to decide who plays for the hockey's holy grail anyway?  Or as one article put it "If the NHL won't use it, can Canada have the Stanley Cup back?".

While one commentator has referred to the legal status of the Stanley Cup as "unknowable" that is not entirely accurate.  There are some uncertainties around the legal status of the Cup.  However, it seems fairly clear that while the NHL holds trademarks over the name and image of the Stanley Cup, it doesn't actually own the Cup.  The Stanley Cup is held in trust.  A trust is a legal relationship in which one person (the donor or grantor) gives a piece of property to another person (the trustee) to hold that property for the use and benefit of a third person (the beneficiary) or for some charitable purpose. 

In the case of the Stanley Cup, it was gift from Lord Stanley of Preston, then Governor General of Canada in 1892, to be awarded to the top amateur hockey team in Canada.  Lord Stanley appointed two trustees of the Cup, and laid down some fairly general preliminary regulations governing how it was to be used and awarded, which gave broad discretion to the trustees.  The Cup was intended to be a challenge cup, and in the early years, the champion of any senior hockey league could challenge for it.

Around 1908, with the introduction of the Allan Cup for amateurs, the Stanley Cup became the trophy for the top professional hockey team in the country.  The Stanley Cup final became a competition between the Pacific Coast Hockey Association and the National Hockey Association (precursor of the NHL), and later the Western Canada Hockey League as well.  These leagues grew to include American teams, and in 1917 the Seattle Metropolitans were the first American team to win the Stanley Cup.  The PCHA and WCHL later merged to form the Western Hockey League.  In 1924-25 the WHL's Victoria Cougars became the last non-NHL team to win the Stanley Cup.  When the WHL folded in 1926, the NHL was left as the sole league playing for the Cup.

In 1947, the Trustees of the Stanley Cup reached a deal with the NHL that gave the league exclusive control over the Cup, sole discretion over how to determine the winner, and the ability to reject challenges from other leagues.  Although it does provide that if the league ceases to be the top professional league in the world, or that if the league dissolves or terminates, the Cup shall revert to the control of the trustees.  The current trustees are both former NHL Vice Presidents.

Many people have since questioned the validity of this agreement, and for good reason.  Trustees are required to honour the intentions of the donor of the trust.  Intentions can sometimes be difficult to interpret, and in this case, the few regulations that Lord Stanley did lay down in writing give fairly broad discretion to the trustees.  However, it seems fairly obvious that Lord Stanley intended the Cup to be a challenge tropphy, and not to become the exclusive property of one league.  There's a strong argument that it was simply not open to the trustees to enter into such a deal with the NHL, and the agreement is invalid.

During the 2004-2005 hockey lockout, a recreational team called the Wednesday Nighters decided to challenge for the Cup, and took the trustees to court to challenge the validity of the agreement.  The case dragged on and ultimately settled in 2006, by which time the lockout was over.  The settlement agreement provided that the trustees could award the Cup to a non-NHL team in the event that the NHL failed to hold a Stanley Cup competition that season.  However, when the 2012 lockout commenced, the Trustees made clear that even if the NHL doesn't have a season this year, they will not entertain any challenges from non-NHL teams. 

The Trustees are on shaky legal ground here.  Again, their actions don't seem consistent with the original intentions and purposes of the trust, and the agreement with the league is of questionable legal validity.

There is some question as to whether this is a purpose trusts, or a trust for persons.  If it is a trust for persons, it is always open to the beneficiaries of a trust to take the trustees to court and enforce the terms of the trust.  While it is not entirely clear in this case who the beneficiaries of the trust are, there is a fairly strong argument that the beneficiaries are the Canadian people themselves.  If that is the case, then literally any Canadian could go to court to enforce the Stanley Cup trust, and try to force the trustees to award the trophy.

Obviously, the NHL would fight this tooth and nail.  The Stanley Cup is their most valuable asset and they would not give it up without a fight.  Anybody seeking to challenge the league's control of the Cup would doubtless be met by an army of lawyers, and would probably get bogged down in endless procedural wrangling and appeals.  The case likely wouldn't be decided until long after the current lockout is over.

However, given the fact that the NHL is now potentially facing it's second lost season in just 8 years, fans might want to ask themselves whether the NHL is really the best custodian of the Cup, or whether it is time for hockey fans to take control of the cup back, and return it to the use for which Lord Stanley originally intended it: a challenge cup for the best teams in the Dominion of Canada.

Tuesday, December 4, 2012

Democracy Gets Thrown under the Omnibus Again

One of the latest controversies to hit Parliament Hill is the Harper Government's use of so-called omnibus legislation.  The latest incarnation is Bill C-45, a budget omnibus bill that is a sequel to Bill C-38, the omnibus bill the Conservatives passed in the Spring after delivering their budget.

Bill C-45 is 457 pages long and will amend a number of pieces of legislation.   As with Bill C-38, the opposition has objected to both the size and the scope of the bill.  One major paper has called it "an affront to democracy".  Some other news outlets have been more or less silent, or have simply referred to it as "sparking profound changes".

Finance Minister Jim Flaherty has suggested there are "no surprises" in Bill C-45, that the opposition simply failed to read the budget over the summer, and that Parliamentarians should now do the job they are paid to do and dutifully pass the legislation.  NDP critic Nathan Cullen has stated that doing their job is exactly what the opposition wants to do.  Who has the right of it?

The Legislative Process

In order to understand the controversy, it is important to understand a little bit about the legislative process, and the passage of omnibus and budget bills.

To become law, legislation must first be introduced to either the Senate or the House of Commons as a bill. Once it has been read in the house twice, it is referred to committee for detailed study.  The nature of the bill determines which committee it is referred to.  A budget bill is typically referred to the Finance Committee, while a bill dealing with, for example, Aboriginal Peoples, would go to the standing committee on Aboriginal Affairs.  After detailed study, a committee refers the bill back to the House, often with proposed amendments. 

Committees are where much of the real work of Parliament is done.  They review legislation in more detail, hear from experts on the topic, and interest groups representing those who will be primarily affected by legislation.  Based on this input, they are able to recommend often vital changes to the proposed legislation.

Omnibus Bills and Budget Bills

Omnibus Bills themselves are nothing new.  New laws often have to make changes to a number of related pieces of legislation, and omnibus bills such as the Criminal Law Amendment Act of 1968-69 made major changes to the criminal law in Canada by amending several pieces of legislation.  The important thing is that it was all on a related topic.

Budget Bills also typically contain amendments to several pieces of legislation, such as the Income Tax Act and other statutes, in order to carry out the provisions of the budget.  These changes are usually primarily administrative, and relate directly to budget implementation.

Problems with Omnibus Budget Bills

Where Omnibus bills become problematic is when they try to amend large amounts of unrelated legislation, because they avoid allot of the oversight, legislative scrutiny and democratic debate that is necessary to ensure legislation is well thought out and well drafted.  For example, Bill C-38 last Spring contained major amendments to the Fisheries Act, and completely revamped the Canadian Environmental Assessment Act.  Normally, these types of changes would be reviewed by the standing committee on Fisheries and Oceans and Environment and Sustainability respectively.  However, because they were tacked on to a budget bill, they were reviewed by the Finance committee only, which has neither the time nor the expertise to properly review these major legislative changes.

Similarly Bill C-45 contains major amendments to several pieces of legislation, including important protections in the Navigable Waters Protection Act.  Some of these were never mentioned in the budget.  This time, the Conservatives backed down slightly and agreed to allow 10 House of Commons committees to review the omnibus bill..  However, some of these committees were only able to meet for a day.  Further, the government stated they would only be willing to entertain amendments to the bill if they were not "contrary to government policy".  Of over 1,700 amendments proposed by the opposition in committee, the government voted down every single one, meaning in reality they were opposed to any amendments at all. 
Without the power to recommend specific amendments to the bill, the committee power of review is rendered fairly toothless.

Another problem is the sheer size of the Bills.  Both Bill C-38 and Bill C-45 were over 400 pages, yet the government quickly moved for closure on debate, meaning major changes were made to several different Canadian laws with very little debate in the House of Commons at all.  Debate on Bill C-38 lasted 22 hours, much of which was spent defeating proposed amendments.  Debate on Bill C-45 lasted just over 6 hours.  This is simply not enough time for meaningful debate on legislation of this scope.

Finally, votes on budget bills are considered a confidence vote: if the government loses the vote, it is a motion of non-confidence and the government falls.  Backbenchers in the Conservative caucus, who normally have some freedom to vote against government bills if they don't agree with them, generally feel they have to vote for the budget.  So a backbencher who has serious trouble with, say, some of the changes to the Fisheries ACt, nonetheless has to vote for it because its a budget bill.

The end result of this is that some of our vital democratic safeguards in the legislative process are being short-circuited.

The Use and Abuse of Omnibus Bills

The Liberal governments of Jean Chretien and Paul Martin were notorious for using omnibus legislation, although they were hardly the first.  Stephen Harper, as opposition leader, validly objected to the Liberals use of omnibus legislation calling it undemocratic and "a contradiction to the conventions and practices of the House.” However, as a Prime Minister, Stephen Harper has taken the use of omnibus legislation to a whole new level, as Bill C-38 and Bill C-45 demonstrate.

The government has concocted the argument that all of the Omnibus Budget amendments are related to the "Jobs" and "Growth" and therefore budget measures that need to be passed expeditiously.  That is, quite frankly, an insult to the intelligence of the Canadian public.  Of course most legislative changes are related to the Economy, in the same loose sense as most of them are related to "Democracy".  What matters at the end of the day is whether legislation is getting scrutinized in a way that ensures it is fair, democratic, and effective.  In the case of the recent omnibus budget bills, it isn't.

Obviously, there is a need to balance democratic process with legislative efficiency.  However, this government is nowhere near to striking the right balance.  So while Minister Flaherty claims that MP's are simply "not doing their job" by "not reading" his budget, in reality, his government is going out of their way to ensure Parliament can't do its job properly. Like my earlier post on prorogation, omnibus bills are yet another example of a way in which Canadian governments are undermining the role of Parliament, and with it, our whole system of Parliamentary democracy.  Regardless of whether they support this government and its policies or not, that is something all Canadians should be concerned about.