Jeremy Kinsman
Foreground: Russia has invaded Ukraine, all of it, as naked an aggression as the world has seen since 1939.
The US has for weeks been predicting Russia intended to invade. This unilateral aggression of choice has prompted almost universal condemnation, and severe sanctions against Russia.
Putin seems confident Russia can withstand economic sanctions because of its low debt and very ample reserves ($620 billion), the strong price of oil and gas, his presumption China will substitute its economic support (not certain), and proven Russian resilience. But Russia’s certain international isolation as a pariah state will be very uncomfortable. Domestic political support for war and its consequences are low. Vladimir Putin’s justification on grounds of Russian grievances, past and present, will possibly play much less well than the dictator in his bubble believes.
How did it come to this, a flagrant violation of international law, thorough disruption of international behavioural norms, and of European peace that have governed affairs for three quarters of a century? What do we need to understand about Russia? Where to begin?
Background.“Tout comprendre, c’est tout pardonner” (To understand all is to forgive all). This classic French aphorism, lifted by both Tolstoy in War and Peace and Evelyn Waugh in Brideshead Revisited, is a romantic notion. Understanding what makes others tick, especially adversaries, is vital. But in diplomacy, forgiveness is irrelevant. Diplomacy seeks livable, workable, outcomes from clashes of interests, values, and even memory, requiring give and take.
Sadly, for this, diplomacy has succumbed to sheer force, for now.
Understanding where the antagonist, Russia, is coming from is buried in traumas of its murderous 20th century history. Putin cherishes distant 10th century ties, when Vladimir the Great adopted Christianity for the Kievan Rus, foretelling the spread of Eastern Orthodoxy into greater Russia. He implies this suggests Ukraine/Russian issues are “family” matters. But Tolstoy also reminded us each unhappy family is unhappy in its own way (and some can break up violently).
Start instead with the Bolshevik Revolution in 1917, which enveloped everybody across the Russian Empire in shared traumatic unhappiness from violent Soviet police-state Communism.
PTSD, Post-Traumatic Stress Disorder, can affect whole societies. Soviet trauma was suppressed by the immediate need to resist Hitler’s murderous invasion and by pride in postwar industrial and scientific accomplishments. But Stalinist persecution of Ukrainian kulaks (wealthy farmers), state-created starvation, gulags, and mass purges left cumulative psychological scarring.
Mikhail Gorbachev’s transformative programs of glasnost (openness) and perestroika (reconstruction) in the mid-1980s, to undo the police state and to open up society and the economy, were seen in the US as acceptance of dysfunctional inability to compete in the arms race and the international economy.
The USSR economy could have staggered on several more years. Gorbachev’s principal motive was a moral judgment that transformation of Soviet society needed prior relief of the legacy of state crime. In advocating for openness and truth, he isolated Eastern European puppet regimes, enabling mass dissent that exploded in November, 1989, with the breach of the Berlin Wall. The tumble of Communist regimes eviscerated the Warsaw Pact of meaning. At the Open Skies meeting in Ottawa in January, 1990, West Germany and East Germany, (GDR), agreed with the Second World War’s occupying powers, the USSR, the US, France and the UK (“two plus four”) to negotiate Germany’s reunification. It was the beginning of the end of the Cold War.
at the post-Gulf War G7 London Summit, Gorbachev’s guest appearance on the veranda of Lancaster House drew officials lunching in the garden below spontaneously to their feet to applaud the man most of them credited with ending the Cold War.
NATO ministers next met June 7th, 1990, under Margaret Thatcher’s chairmanship at Turnberry Golf Course in Scotland (now owned by Donald Trump). German Foreign Minister Hans-Dietrich Genscher agreed to propose a “Message from Turnberry” to “seize the historic opportunities resulting from the profound changes .... to help build a new peaceful order in Europe.” German Political Director Dieter Kastrup asked his Canadian counterpart, me, to shape the English. Together, with External Affairs Minister Joe Clark’s encouragement, we crafted NATO’s short message, “to extend to the Soviet Union and to all other European countries the hand of friendship and cooperation.” Headlines the next morning signaled the actual end of the Cold War. The euphoria wouldn’t last
Germany’s reunification needed prior withdrawal of 400,000 Soviet troops. Chancellor Helmut Kohl offered Moscow massive financial compensation. At a Bush-Gorbachev summit in early September 1990 in Helsinki, Secretary of State James Baker (presented as “my lawyer,” by George H.W. Bush) assured Gorbachev that as USSR forces pulled out of East Germany, NATO forces would not move “one inch” to the East. Baker says he meant “into East Germany.” Gorbachev regrets his that his acquiescence implies he had accepted NATO expansion.
Having myself asked both Baker and Gorbachev in their retirements, I concluded the question was lost in translation at the buoyantly cordial Helsinki summit where, as Baker told NATO the next day, Gorbachev endorsed a UN-sponsored international force to reverse Saddam Hussein’s invasion of Kuwait a month earlier. Discussion intensified over Europe’s security architecture in light of momentous changes.Some leaders – Germany’s Genscher, Czech leader Václav Havel – questioned the need for both NATO and the Warsaw Pact.
In November 1990, a grandiose Europe-North American Paris summit described as the Cold War peace conference launched Gorbachev’s concept of a European common home, from “Vancouver to Vladivostok.” It created the Organization for Security and Cooperation in Europe (OSCE). In June, 1991, at the post-Gulf War G7 London Summit, Gorbachev’s guest appearance on the veranda of Lancaster House drew officials lunching in the garden below spontaneously to their feet to applaud the man most of them credited with ending the Cold War.
But the summer’s confidence waned as unprecedented transformation challenges arose. In Warsaw, Budapest and Prague, newly empowered political dissidents with scant experience of running anything, much less governments, found that opposition to prior Communist regimes didn’t extend to unity on what to do next. These Western European societies shut in by the Iron Curtain, yearning to re-join Europe, now grasped that satisfying entry requirements of the European Community would be a long and hard road. Havel reversed his inclination to dissolve both alliances, seeing that NATO’s brand offered precious Western identity credentials.
Russian attention was inward. Gorbachev had undertaken emancipation from state Communism without a lucid “Plan B” to transform the economy. No one knew how, least of all Western advisers whose “shock therapy” had triggered economic and social free-fall. An August coup by bitter Communist throwbacks failed, but Gorbachev’s popularity tanked. Rival reformist president of the Russian Republic Boris Yeltsin failed to push him out, so Yeltsin broke up the USSR.
That decision was made December 8th, 1991, at a Belarussian hunting lodge by Yeltsin and Leonid Kravchuk, party boss of Ukraine. On December 20, at the inaugural meeting of the North Atlantic Cooperation Council – the 16 NATO and nine members of the Warsaw Pact – at which I was present in Brussels, the Soviet ambassador, called repeatedly to the phone from Moscow, relayed his instruction to remove the USSR’s nameplate from the table. We adjourned, believing that NATO’s intrinsic vocation as an alliance organized in hostile opposition to Moscow was over. (It would return.)
Putin manufactured this crisis to protect that line with an unobtainable formal agreement NATO will not expand, though he knows that in reality Ukraine is not joining NATO. He wishes to reclaim for Russia great power influence, and greater Russia/NATO security parity.
For 20 years, NATO explored a wider role (summarized in the post-Cold War catchphrase “out of area or out of business”), undertaking airstrikes in 1999 to end Slobodan Milosevic’s ethnic cleansing siege of Kosovo. After the attacks of 9/11, Canada moved that NATO for the first time activate Article 5 of its Charter to intervene collectively in response to an attack on an alliance member, launching its long and painful engagement in Afghanistan. In 2011, NATO bombed Moammar Ghaddaffi’s army in Libya as it advanced on Benghazi.
Meanwhile, the USSR’s 290 million citizens broke into 15 separate countries, surprisingly peacefully. Twenty million ethnic Russians opted to stay in non-Russian new republics. Concern for Russian minorities in Ukraine, Kazakhstan, the Baltics, Moldova, and Georgia would preoccupy Moscow for years. To fill the national identity space vacated by Communism, leaders of new republics often drew from established hostility to the USSR, which they easily conflated with the Russian Republic. Russians, who had decisively pushed breaking up the USSR and who had suffered more from the Communist oppression than anyone, resented it.
But they remained engulfed by institutional collapse at home. The Russian Navy’s commander told me when I was serving as Canadian Ambassador to Moscow that he was an out-placement manager. We saw rotting hulks of nuclear-powered ships in Vladivostok. Yeltsin begged for material western assistance. US President Bill Clinton understood the potential costs of letting “ol’ Boris” down but couldn’t move Congress to do much to support Russia. By 1998, amid chaos and corruption, Russian democratic reformers fell decisively out of favour. Meanwhile, in 1999 NATO admitted new members, Czechoslovakia, Hungary and Poland.
The post-Yeltsin battle began. His family turned to Vladimir Putin, reputedly a reliable go-to apparatchik who quietly got things done. He replaced Yeltsin on Jan 1, 2000. His first official foreign visitor was NATO’s Secretary general, George Robertson. Putin successfully redressed economic disarray and stabilized politics to public acclaim, telling Russians that what they needed was not another revolution, but a “Great Russia.”
But his growing subtraction from recently-gained democratic space increased opposition from professional and middle classes, chafing at their imposed “political infancy.” Putin played the popular nationalist card, exploiting what former UK Foreign Minister David Miliband describes as a legacy of Russian humiliation at being treated as the Cold War’s “losers,” to earn applause for standing up to the West. Western dismissal of Russian positions that NATO’s expansion up to Russia’s borders violates 1990s understandings as “outlandish” fuelled the resentment.
Putin wanted Ukraine to fail. A successful democratic Ukraine could be mortally contagious to his corrupt autocracy. He is a cynical and highly competitive man who sees democracy idealists as hypocritical, phony US stooges.
Still, most Russians were sufficiently objective to understand that Czechoslovaks, Hungarians, and Poles deserved to re-join interrupted European legacies. Most conceded, too, that the shameful 1940 annexation of the Baltic states into the USSR via a deal with Nazi Germany deserved remedy. The entry of Romania, Bulgaria Slovenia, Slovakia, etc., was sullenly digested.
But it was always clear that NATO’s inclusion of Ukraine or Georgia would cross a red line. Putin manufactured this crisis to protect that line with an unobtainable formal agreement NATO will not expand, though he knows that in reality Ukraine is not joining NATO. He wishes to reclaim for Russia great power influence, and greater Russia/NATO security parity. He believes the “Minsk accords” that meant to stabilize conflict with the rebels of Donetsk and Lugansk and award more autonomy to the Russian-speaking Donbas are hopelessly stalled. He chose aggression against Ukraine for daring to exist.
Putin wanted Ukraine to fail. A successful democratic Ukraine could be mortally contagious to his corrupt autocracy. He is a cynical and highly competitive man who sees democracy idealists as hypocritical, phony US stooges. He prefers believing that a Ukraine subordinate to Putin retain operational features just like Russia’s, where corrupt oligarchs call the shots.
His choice of invading Ukraine, inviting death and destruction, and real costs to his own country, raise issues of the Russian leader’s grasp of reality and certainly of morality.
Does he represent Russian opinion? The surprise 2014 annexation of Russian-speaking Crimea was popular in Russia but almost destroyed relations with the West. By contrast, military incursion and occupation in Ukraine would find little public support (only 17 percent according to a Levada poll wish the two countries to re-unite). It would isolate Russia for years, whatever Putin’s closer but still wary autocratic fraternity with Xi Jinping.
NATO had been ready to address Russian security concerns — on intermediate nuclear weapons, military infrastructure placement, and the bigger picture, before Russia invaded its neighbour. Now, there will be no Summits for Putin with world leaders, probably ever again.
Relations will now enter a nuclear winter of mutual opposition between Putin and the US, the West and even democracy.
We are dealing with the aftermath of momentous events three decades ago. We lazily believed then we were living the “end of history”, heralding universal coalescence around a Western democratic and market-based model. We couldn’t know it would almost crash in the financial collapse of 2008 or that an increasingly autocratic Putin would radicalize his hostile behaviour, which in its sociopathic impulses reminds us of the inter-generational effects of PTSD on a vulnerable person, such as Putin.
His distortion of truth and lethal threat to lives for the sake of a demonic dream of repossessing a dispossessed past have, as Masha Gessen writes today in the New Yorker, made it impossible for decent people in Moscow and Kiev. “to live and to breathe.” It must be ghastly for them.
Life may now become ghastly for many more Russians who shrugged their shoulders at Putin’s absurd excesses while enjoying new wealth and travel, now about to be curtailed. He is their disgrace, their madman – no other way to put it.
Nonetheless, we need to understand the past and present to meet author F. Scott Fitzgerald’s functional test of a first-rate intelligence — when things seem hopeless, to determine to make them otherwise.
This article first appeared in Policy Magazine.
Brian Northgrave
Canadians - aboriginals and non-aboriginals - agree that what matters most is a better future for First Nations youth. There is also wide agreement that there should be reconciliation over a difficult past as we look to the future. Reconciliation calls for trying to understand that past.
Our reading club has tackled that challenge several times, reading and discussing books, following the media, listening to different views. The most inclusive document is, of course, the Truth and Reconciliation Commission Report, that impressive 3,500 page document that took years to complete and benefited from the work of its twenty five researchers.
That Report included, as an annex, a document entitled “Indian Residential Schools – Research Study of the Child Care Programs Nine Residential Schools in Saskatchewan”. In 1966, the Government of Saskatchewan wanted to know how the provinces nine residential schools in the province were doing. The Province selected a consultant, the consultant prepared questionnaires, and hired people to go and talk to students, to school directors, teachers and child care workers that were at the schools, and to former students that had attended them. Of all the time I spent seeking to understand the Indian Residential School system, the most useful couple of hours were those I spent on reading the Saskatchewan report.
A link to The Saskatchewan report is here
Jeremy Kinsman
Friends and foes look with varying degrees of baffled concern or schadenfreude at what is going on in and with America, asking themselves and each other what the uncertainties mean going forward, including for international cooperation on crucial global issues.
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Jeremy Kinsman
September 25, 2021
The suddenness with which the thousand-day drama of Meng and the Two Michaels concluded was truly a surprise. There were no leaks, no prim granting of anonymity by the Globe and Mail to spinners and speculators. Most astonishing was that the status of these negotiations was kept secret even from the media in leak-addicted Washington and New York, where the legal proceedings against Huawei executive Meng Wanzhou were located.
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Tom Macdonald
We have all witnessed China’s recent misbehaviour and its refusal to play nice in the global sandbox. The Chinese “wolf warrior” diplomats are howling. Chinese authorities seem impervious to Western criticism of their human rights abuses. The chokehold on Hong Kong is being tightened. Chinese fighter jets are buzzing Taiwan and artificial islands being built in the South China Sea. China’s economic tentacles are spreading globally through supply chain networks, strategic investments, massive loans to developing countries, and the Belt and Road initative. Billions are being poured into China’s military machine (albeit less than 40% of what the US spends annually). Where will this all end?
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Robin Higham
The Scene: It is Monday morning and John Canuck (JC) is riding to his downtown Toronto office on the “GO” commuter train. Coffee at his side, he is catching up on his unread weekend newspapers. The train and John haven’t gone far before a new passenger appears and takes the bench opposite, facing John. The stranger is perhaps identifiable as a new Canadian because he speaks, in a manner that vaguely suggests that Canadian English is not his first language. Just as he begins to open his briefcase to do some last-minute paperwork…
JC: Help yourself to my newspapers. They are from the weekend, but yesterday’s news is as good as today’s…they are, as usual, about the failure of health care, the failure of the education system and the failure of our search for the Great Canadian Identity. This weekend the main item was the Identity thing.
Stranger: Thanks, and I would love to have a look at your papers. In fact, the identity discussions are of particular interest to me. I am a newcomer in Canada, and I need all the help I can get just fitting in. It’s not easy to know what you have to do in order to belong. It’s as though just asking, causes embarrassment…as though “identity clarification” was a main item of your list of politically incorrect subjects. Right up there with “how much do you “weigh”?
JC: Well, you don’t surprise me, Newcomer. Canadians have always had a hard time describing themselves in conventional “national identity” or “cultural identity” terms. And you are right, the subject does get us looking down at our shoes a lot…some Canadians think it is a national disgrace to be so vague about who we are as a people. If you really want a description, you may have to write one yourself…make your own list of who you think we are…or, who you would like us to be if you are going to be one of us.
Stranger: Do it myself? Great idea, and so Canadian too! Maybe you could help me. May we talk about it? Do you mind if I keep track? (The stranger reaches in his briefcase for his laptop.)
JC: Sure, why not? But don’t forget…either by accident or by design, we have pretty well disconnected the notion of Canadian citizenship from the notion of Canadian culture or Canadian cultural identity. Since we went “officially multicultural” in the 1970’s, the conventional “cultural specificity” tradition of most nation-states, does not apply here anymore...except perhaps in terms of a few ill-defined national values and citizen responsibilities. So don’t even try to draft a conventional Canadian cultural-identity manifesto. Instead let’s see if together we can make up a catalogue of “Some Characteristics of Canadians. But I warn you, that won’t be easy.
Stranger: Well, I’m not sure it’s going to be that difficult. In case you haven’t noticed, you have already proposed the first item for my list. Let me call it something like “It’s un-Canadian to define Canadians” or, even better, “Defining ourselves is un-Canadian”. From my brief experience here, whenever someone proposes how Canadians should speak or worship or cook or dance or whatever…others get all fidgety I think it’s because if you reach agreement on claims like that, you risk excluding a Canadian friend or a neighbour who speaks or worships or dances differently. My impression is that you can dance just about any way you want in Canada…isn’t that the whole point of being Canadian? Let’s start with that one. “Defining ourselves is un-Canadian”.
JC: You know, that’s not bad! And it fits a national preference for definition by negation. We are much better at saying what, or who, we are not, than we are at saying what, or who, we are.
But here is another negative declaration for your list. Can we agree that we are Not Assertive as a people? I think so…I think I think so…we wouldn’t want a clear “Yes” or “No” here…it might offend someone, some Canadian who is assertive for example. Get the point?
Stranger: I do indeed. You remind me of an experience I had with a Canadian before I came to settle here. I was once interviewed by an uncharacteristically assertive Canadian journalist who was monitoring an international conference that I was attending. The delegates were negotiating the text of their final report. The Canadians and delegates from a few other countries were clearly uncomfortable with some overly categoric language drafted by another group. In her impatience for results…I think she wanted to go home…the journalist labelled her compatriots “as assertive as jelly babies” Maybe she was right, but she didn’t stay around long enough to see the results of their unassertive corridor work. The compromise text that eventually emerged kept the opposing forces at the negotiating table and let the participants get on with the project at hand. The result was one of your legendary win-win outcomes. I was impressed.
JC: That’s a nice example of the “not assertive” characteristic at work. It responds to the criticism of those arm-chair negotiators who contend that “not assertive” reflects low self-esteem…a lack of confidence in our own judgement. I like to see the other side of that coin. For me, being “not assertive” means that we give ourselves more space to listen to other points of view, to consider and to reconsider, even to reach agreement. And we can do that without the loss of face that so often blocks compromise at the same negotiating table.
Stranger: Good, then we have agreement for the second item on our list. I am really comfortable with this one because it incorporates, if only implicitly, another Canadian characteristic which also travels with a negative stigma…here in Canada at least. I am thinking of Canadian style “civility” and the apparent fear of some Canadians that it signals “gullibility” and it is therefore a disadvantageous national characteristic. I happen to disagree that civility is a liability, but I am still not sure that it merits a place on our list just yet since it may be implicit in other items on our list to come. Let’s stick with “Not Assertive” as your characteristic number two.
JC: Suits me. It’s your turn, Newcomer. “Not Assertive” was mine.
Stranger: No problem. How about the word “Abeyance”? I like that word and I have always been intrigued by how Canadians tend to be willing to deal with problems, to manage them, rather than to insist on resolving them…keeping things in abeyance. To return yet again to things that you are not, this is hardly a characteristic that one would assign to the Americans or the French, for example. The Iraq war or headscarves come to mind. When others insist on fixing a problem, your response tends to go more in the direction of “let’s talk about it”. In Canada “The dialogue is the solution.”, to paraphrase Marshall McLuhan. Perhaps one could claim that “talking about it”, abeyance, is why you still have Quebec in the confederation.
JC: Very observant of you. “Abeyance” it is then…number three. If it’s my turn now, I will employ some characteristic Canadian irony and propose the phrase that a clever sports journalist came up with once to describe the mediocre results by Canadians in the Olympic Games. He spoke of our “Passion for Bronze”
Stranger: Ooh, that stings!
JC: Well, it did at first, but then I got to thinking about it. Always the optimist, I decided that there is some merit here. For me “passion for bronze” suggests that Canadians are prepared to go for gold only to a certain point. Beyond that that point, other values or objectives kick in, values that we are not willing to compromise just to stay in the running for gold. No knee-capping the other figure-skater, if you know what I mean. And no gold by hormone supplements, please. We’re Canadians.
Stranger: You know, I think we can list that one, although I am not sure that we don’t get our fair share of Olympic gold. And what about our top ranking on the UN Human Development Index? Not only did we win gold for years running but our Prime Minister at the time never seemed to stop reminding us of it.
JC: That’s true, but it makes my point exactly. When the UN awarded us top scores on the Human Development Index, it was never really accepted by many Canadians, especially the mainstream media. They claimed that we can’t possibly be entitled to first-place, to gold, because of our relative ranking on the international prosperity file…other systems were generating more GNP per capita than ours. “The measurements must be false, this is fools’ gold, we want bronze!” they said. What so many of us didn’t understand was that, precisely because our governments had succeeded better than others at balancing priorities, we got gold for overall performance. We may not have the world’s best health care or education or national defence or environmental controls, but our gold, or near-gold, ranking was due to relative success at incorporating a broad spectrum of values into many of our public policy priorities. Result…a Canadian human development environment that is hard to match any place else.
Over to you, my friend, and by the way it’s interesting to note that you are talking about “us” now, rather than “you Canadians”. Welcome home!
Stranger: Thanks, I guess that’s true. I hadn’t realised it. But in a way you took me there. You’ll see what I mean…I was about to propose characteristic number five as something along the lines of “In Canada all voices are legitimate.” That you are having this discussion with me, a perfect stranger and an obvious newcomer, makes my argument on this point. You have accepted me as a legitimate interlocuter in a discussion which in many other countries, especially those with a clear idea of their national cultural identity, would be much more difficult. I often feel like I have been allowed into the mainstream too easily, without complying to the usual precondition of cultural assimilation. Citizenship or landed immigrant status is all you need to be integrated. That is a difficult trick for any society that seeks to welcome newcomers and to capitalize on their presence in the community.
JC: It is difficult and if we are justified to put it on our list now, it is only because Canadians have been making progress on this point in recent years. Accepting legitimacy of minority voices means re-jigging one key popular notion of democracy. I am of course talking about the “majority rules” rule. In many so-called emerging democracies, “majority rules” is interpreted to mean that minorities have little or no legitimate voice… Over time, and with the arrival of so many minorities in Canada, we have finally begun to accept a qualification to the rule-by-majority tradition. We are starting to understand that while the preferences of minority groups may not always prevail in public policy discussions, peaceful co-existence dictates that the system has to ensure that their views are listened to. We know that we must take them into account and accommodate them as much as possible. Official language rights for minority groups were perhaps the issue that first brought this message home to us. But we have gone beyond that now and in our public policy debates, we expect to hear why something matters to minority groups be they a linguistic minority, religious, ethnic, sexual orientation, or other. As long as we live up to it, your “All voices are legitimate”, point number five, hits the nail on the head as a key characteristic that makes it possible to govern the diversity of this country. Thanks for pointing it out to me…for helping me better understand us.
Stranger: Well, thank you for listening to it. I suppose we are reaping the benefits of more than one perspective on the discussion. Can you keep the pace? Characteristic number six is yours to identify.
JC: Easy, its “Bricolage”
Stranger: Sorry?
JC: Bricolage…in my view this is a key Canadian characteristic. It’s a French language word of course. I don’t know of an English language equivalent for “bricolage” unless we stretch it out to something like “the capacity to cobble together as you go along” …hardly satisfactory but you’ll get what I mean.
Stranger: I’m not sure I do. Keep talking.
JC: Bricolage! It’s more than just tinkering. It’s our tendency, our preference even, to muddle through, to take small incremental steps to manage problems or even to develop policies.
Those who always see the glass as half empty, see bricolage as a dangerous absence of political left or political right ideology, …a characteristic to be avoided in many countries where citizens are more politically oriented as left- or right- leaning, and often, by the way, more engaged voters. I view bricolage as our preference for pragmatism. It can be, for example, when the political left turns right, or the right turns left…at any given moment…just to get the job done. Bricolage is another of those Canadian characteristics that befuddle those who seek to follow and interpret our society and our politics. Bricolage is one more reason why we have so much difficulty explaining ourselves to others. By the time an explanation has been worked out, we have moved on and the proposed model is no longer valid.
Stranger: Like moving the goalposts. Alright, I’ll put it down. It’s a bit flakey so I have a feeling we must be coming to the end of our list. However, I do like your reflection on the challenge of explaining ourselves to others. I have always felt that “explaining ourselves to others” is the best way of explaining ourselves to ourselves. That was the starting point for this whole discussion if you recall. We set out to explain ourselves to others. Drafting this list of Canadian characteristics is a good example. If you allow me though, I would like to propose just one more: Choice Maximisation.
JC: I can hear you coming.
Stranger: Good! But let me explain it to you anyways…it will help me understand what I mean. Choice Maximisation is another national characteristic which is too often dismissed by Canadians themselves. Yet again, many consider it as a weakness, as fence sitting, as an inability to make up our mind, as a way to avoid making any choices at all. But we Canadians need our space, don’t we? We are only comfortable when our options are wide open. Since I have been in Canada, I have seen that choice maximisation characteristic at work on many occasions. It is most noticeable in your interminable culture-policy discussions, cultural trade policy in particular. I think it has to do with Canadians’ simultaneous passion for, and fear of, globalization, of identity homogenisation through the universal (read “USA”) entertainment culture. Many nation-states share this fear of course. But in spite of that méfiance (distrust plus fear) Canadians want access to the full range of market-driven entertainment products of the international cultural industries. We want USA entertainment in particular. But maybe we’re a bit greedy. We want everything. We even want access to Canadian content in our choices of TV programming, cinema, magazines, books and recoded music. Canadians want those choices even when the dictates of the marketplace would exclude home-grown where demand may be inadequate to support competitive production. Free traders at home and abroad, denounce that as protectionism, as anathema to constructive globalisation. Canada’s cultural warriors see Canadian Content (CanCon) as indispensable to the sustainability of the special character of their country…as undefinable as that may be. It's when policy options are presented as mutually exclusive, that we get skittish. Choice maximisation is about not painting ourselves in a corner. Choice maximisation may not always lead to the most efficient marketplace, but it is supportive of our insistence on a diversity of perspectives… “All voices are legitimate” remember?
JC: Of course, and I agree that Choice Maximisation belongs on our list. But that list is beginning to look a little long, don’t you think? You’ve been taking note, can you read back our points? I think there are seven.
Stranger: Yes, there are seven. First: Defining ourselves is un-Canadian. Second: we are “Not Assertive”. Third: “We prefer to keep things in Abeyance”. Fourth: our “Passion for Bronze”. Fifth: in Canada “All voices are legitimate”. Sixth: Problem-solving and policymaking by “Bricolage”. Seventh: “Choice Maximisation”, don’t fence us in.
JC: Not bad “un-stranger” What do you think? Are they marketable?
Stranger: Well, I’m not sure they are. After this discussion, I am starting to understand you, us, better. I have a feeling that our list would provoke the Passion for Bronze response. I think many Canadians would consider our characteristics profile much too up-beat, too self-congratulatory. They would come up with all kinds of arguments and anecdotes to prove us wrong.
JC: Yup, you’re probably right. Maybe we should entitle it “Some Characteristics of Some Canadians, Some of the Time…Under Certain Circumstances”
Stranger: That sounds just a little clumsy, don’t you think? I wonder if instead we could pre-empt the risk of rejection by adding an eighth qualifying characteristic.
JC: Perhaps. How about this? Characteristic number eight: Canadians sometimes knowingly, or unknowingly, sin against all seven of the above. What are Canadians, after all, if their institutions do not act un-Canadian on occasion? If getting caught acting out-of-character, exposes our transgressions and jerks us back to some kind of improved character compliance, then our list would be doing its job!
Stranger: Wonderful! It sounds like a hockey coach: “The best defence is a good offence.” Number eight it is then, “Regretful Transgressions Recognition” In any case, we know by experience that whenever we betray the un-written code that we just wrote, there will always be a whistle-blower not far away, to remind us that it is un-Canadian to…
JC: Whoa! Careful my friend! Remember point number one about not defining ourselves? Don’t ever finish that sentence. You’ll really get us in trouble.
Stranger: Yeah, I guess you’re right. Thanks for doing this with me. Here’s our stop in any case. Are you finished with those weekend newspapers?
Robin Higham 2/3/04
(With ideas from, various newcomers and friends including Ian Angus, Alan Cairns, Walther Lichem, Edgard Pisani, Gilles Paquet)
Jeremy Kinsman
In the wake of the remarkable bilateral between US President Joe Biden and Russian President Vladimir Putin in Geneva on June 16th, hereby some background for context.
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Pierre Beemans
Our reading group chose this most interesting and challenging topic for discussion this month. Interesting because of its prominence and relevance in our world today, and challenging because of its abstract and obscure theory and its specialized vocabulary and epistemology.
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Gavin Murphy
Alice Mount
Marianne Chow
By Gavin Murphy
(with the collaboration of Marianne Chow and Alice Mount)
EXECUTIVE SUMMARY
Following a formal investigation by the Canadian Competition Bureau, FlightHub (an aviation e-commerce platform) and two of its directors were fined $5.8 million after registration of a consent agreement with the Competition Tribunal in February 2021. The case confirms a no tolerance policy for deceptive online marketing practices with particular reference to drip pricing.
INTRODUCTION
Canada’s Competition Bureau (‘Bureau’), which assists the Commissioner of Competition (‘Commissioner’) in the administration and enforcement of the Competition Act (‘Act’),[1] announced on 24 February 2021[2] that the Commissioner had clipped the wings of Montreal-based FlightHub Group Inc. (‘FlightHub’)[3]. FlightHub, which operates FlightHub.com and JustFly.com, had a $5.8 million administrative monetary penalty levied against it and two directors[4] for drip pricing. [5] The Commissioner determined that Flighthub mislead consumers about prices and services, making millions of dollars in revenue from hidden fees and posting false online reviews.[6] As well as a $5 million sanction against FlightHub, both directors agreed to penalties of $400,000 each after the ‘online travel agency charged customers hidden fees, authored positive customer reviews to promote its services, and made numerous false or misleading claims about its prices and other flight-booking services’.[7](FlightHub was declared insolvent and granted creditor protection by the Quebec Superior Court in May 2020, thereby fundamentally altering its ability to pay the penalties.[8])
BACKSTORY
The Bureau initiated a formal investigation into FlightHub’s marketing practices in November 2018 after receiving countless complaints concerning the marketing practices of FlightHub.com and JustFly.com. Complaints referred to the application of hidden fees for services such as seat selection and flight cancellation and rebooking, resulting in additional charges and higher prices.[9] In February 2019 the Bureau executed search warrants at FlightHub’s headquarters and seized relevant documents to assist in its investigation.
In October 2019 the Commissioner entered into a temporary consent agreement with FlightHub to prohibit it from using false or misleading representations on FlightHub.com and JustFly.com while the investigation continued. This was the first ever use of a temporary consent agreement under the Act during an ongoing investigation.[10] The temporary consent agreement is designed to avoid litigation but has the same legal effect as an interim injunction.
The Bureau claims the ‘settlement [final consent agreement], which resolves all of the Bureau’s concerns, is designed to ensure that all prices, fees and terms associated with FlightHub’s services are clearly disclosed to consumers’.[11]
More specifically, the temporary consent agreement is replaced with a final consent agreement[12] registered with the Competition Tribunal (‘Tribunal’).[13] Once registered, the consent agreement has the same force and effect as an order of the Tribunal.
Final consent agreement
After a remarkably long series of ‘whereas’ clauses, the consent agreement provides an overarching clause at Part II[14] paragraph 1 that FlightHub and the two named directors (‘the Respondents’) will comply with Part VII.I of the Act. Paragraph 3(a) gets to specifics and says that the Respondents:
- shall not make, or permit to be made, any representation to the public that conveys the materially false or misleading general impression that consumers can select a seat or seat-type, or indicate that they do not wish to select a seat or seat type, without paying an Additional Fee;
- shall not make, or permit to be made, any representation to the public that conveys the materially false or misleading general impression that consumers can obtain cancellation and/or rebooking rights without paying an Additional Fee;
iii. shall not make, or permit to be made, any representation to the public that conveys the materially false or misleading general impression that consumers are not paying certain Additional Fees by concealing them and bundling them with other non-optional fees;
- shall disclose any Additional Fees and their amounts in such a way that a consumer will see the fee prior to selecting any Flight-Related Services; and
- shall prominently disclose all Additional Fees individually in a purchase summary in a manner that is separate from non-optional fees, before consumers are invited to confirm their order. For greater certainty, consumers should not need to take some additional step, such as hovering or clicking, to see the Additional Fees.[15]
The consent agreement further says that the Respondents shall not make a representation to the public that conveys the general impression that a consumer can obtain a reservation at the price represented, taxes and fees included, if a consumer is then subsequently charged additional fees. As well, the Respondents shall not state:
- Consumers can reserve their seats or that their seats will be secured by FlightHub where that is not the case;
- The cancellation and/or rebooking rights offered by FlightHub provide consumers with cancellation and/or rebooking rights that are for a longer time period or have fewer restrictions than is actually the case;
iii. Flight exchanges are credits, or that a flight exchange has greater value, greater choice, or fewer restrictions or costs than is actually the case; and
- Consumers can cancel a Flight and subsequently apply the value of that Flight against future purchases of Flights on the Websites, when in fact the applicable value is subsequently reduced.[16]
The Respondents shall also refrain from making any representation to the public that conveys the misleading general impression that reviews on third-party websites are posted by independent and impartial consumers, removing any and all reviews posted by or on their behalf. Additionally, within 90 days of the registration of the consent agreement, FlightHub shall establish and maintain a corporate compliance program to promote compliance with the Act in general, as well as Part VII.1 of the Act and the terms of the consent agreement in particular. Finally, the consent agreement binds the Respondents for a term of 10 years following registration.
The FlightHub settlement sends an emphatic message that drip pricing will not be tolerated in the Canadian economy. Furthermore, company directors are also at risk should they engage in this behaviour as the Commissioner took the unusual step in this case to have them penalised. Drip pricing is a relatively recent phenomenon of online retailers and inherently misleading and anticompetitive. But given FlightHub’s uncertain corporate status, this settlement may be merely a pyrrhic victory for the Commissioner.[17] Time will tell.[18]
The final word goes to the Commissioner. He said:
We have pursued this case relentlessly to ensure that Canadians would be protected against any further deceptive marketing by FlightHub and its directors. Cracking down on deceptive marketing in the online marketplace is one of the Bureau’s top priorities, and we’ll continue to do everything in our power to stop it.[19]
[1] Competition Act, RSC 1985, c. C-34, as amended.
[2] Competition Bureau, “Investigation of FlightHub ends with $5.8M in total penalties for company and directors,” 24 February 2021, available at: https://www.canada.ca/en/competition-bureau/news/2021/02/investigation-of-flighthub-ends-with-58m-in-total-penalties-for-company-and-directors.html [accessed 26 March 2021].
[3] According to its website, “FlightHub is Canada's fastest growing online travel company. With a dedicated team with over 20 years experience of serving Canada's travel needs offline, we decided to take our expertise to the web and develop amazing software to improve every aspect of the travel process. We are a well skilled team of software engineers and travel specialists that work tirelessly to make FlightHub one of the best sites to plan, book, and manage your travel plans”, available at: https://www.flighthub.com/about-us [accessed 26 March 2021].
[4] “Penalizing FlightHub’s directors is a noteworthy move on the Bureau’s part. Although fines against individuals are typical when enforcing the Competition Act’s criminal provisions, obtaining them in respect of civil misrepresentation cases has not been the norm in recent years. While FlightHub’s particularly precarious financial situation might have also contributed to the decision to go after individual directors – FlightHub was granted creditor protection last year, and as such, the monetary penalties here will likely get lumped into a long line of unsecured creditor claims – the individual penalties serve as a reminder to directors of their obligation to ensure their companies abide by the Competition Act”, Competition/Antitrust & Foreign Investment Group, “FlightHub and its Directors caught in the Competition Bureau’s wave of “drip pricing” enforcement: agree to $5.8M in penalties,” 25 February 2021, mccarthy tetrault, available at: https://www.mccarthy.ca/en/insights/articles/flighthub-and-its-directors-caught-competition-bureaus-wave-drip-pricing-enforcement-agree-58m-penalties [accessed 26 March 2021].
[5] Drip pricing is an online retail technique whereby the initial price advertised at the beginning of the purchase process is followed by additional fees, taxes or charges which are incrementally applied or "dripped".
[6]The Act’s deceptive marketing practices provisions forbid businesses from making false or misleading representations to the public about products or services. See Part VII.1 of the Act, available at: https://laws.justice.gc.ca/eng/acts/C-34/page-17.html#h-89169 [accessed 26 March 2021].
[7] “Even though this case has no precedential value since it was not a disputed matter, it still serves as a reminder that the Competition Bureau remains focused on conduct it believes to be deceptive, including drip pricing. It is also significant that the focus here is online advertising and the travel industry, where many consumer protection organizations internationally have focused particularly due to [the] COVID-19 pandemic,” William Wu, Éric Vallières, Joshua Krane and James B. Musgrove, “Competition Bureau Grounds FlightHub’s Misleading Advertising,” Competition Law Bulletin, 3 March 2021, mcmillan; available at: https://mcmillan.ca/insights/competition-bureau-grounds-flighthubs-misleading-advertising/ [accessed 26 March 2021].
[8] But see Part III, paragraph 13 of the consent agreement. For further details on the insolvency process also see “CCAA Records
Flighthub Group Inc., Flighthub Service Inc., SSFP Corp., Justfly Inc., Justfly Corp. and 11644670 Canada Inc”, 12 May 2020, available at https://www.ic.gc.ca/eic/site/bsf-osb.nsf/eng/br04300.html [accessed 26 March 2021].
[9] Consumer complaints about FlightHub’s marketing practices are also common in the USA. See in this regard, Gavin Murphy, “The Canadian Competition Bureau takes steps against misleading representations in online sales of airline tickets (FlightHub)”, e-competitions, 28 October 2019, available at: https://www.concurrences.com/en/bulletin/news-issues/october-2019/the-canadian-competition-bureau-takes-steps-against-misleading-representations [accessed 26 March 2021].
[10] Ibid.
[11] Competition Bureau, “Investigation of FlightHub ends with $5.8M in total penalties for company and directors”, at fn 2.
[12] THE COMMISSIONER OF COMPETITION and FLIGHTHUB GROUP INC. / GROUPE FLIGHTHUB INC., MATTHEW KEEZER and NICHOLAS HART, Competition Tribunal, File number CT-2019-003, available at: https://decisions.ct-tc.gc.ca/ct-tc/cdo/en/item/493395/index.do [accessed 26 March 2021].
[13] According to its website, “The Competition Tribunal has jurisdiction to hear and dispose of all applications made under parts VII.1 and VIII of the Competition Act and any related matters. It also hears references filed pursuant to section 124.2 of the Competition Act.” For further details see https://www.ct-tc.gc.ca/en/home.html [accessed 26 March 2021].
[14] This section of the consent agreement is titled “COMPLIANCE WITH THE DECEPTIVE MARKETING PRACTICES PROVISIONS OF THE ACT”.
[15] THE COMMISSIONER OF COMPETITION and FLIGHTHUB GROUP INC. / GROUPE FLIGHTHUB INC., MATTHEW KEEZER and NICHOLAS HART, at fn 12.
[16] Ibid at Part II, paragraph 5(a).
[17]“In reaching today’s settlement, the Bureau took into account that FlightHub is insolvent and was granted creditor protection by the Quebec Superior Court in May 2020. The associated penalties will be treated as unsecured claims in any plan of arrangement to be filed by FlightHub under the Companies’ Creditors Arrangement Act (CCAA). All other terms of the settlement are binding on FlightHub and the two directors for a period of 10 years, regardless of the outcome of the CCAA proceedings.” Competition Bureau, “Investigation of FlightHub ends with $5.8M in total penalties for company and directors”, at fn 2.
[18] Any successor company would also be bound by the terms and conditions of the consent agreement. See Part IV “CCAA Process” of the consent agreement.
[19] Competition Bureau, “Investigation of FlightHub ends with $5.8M in total penalties for company and directors”, at fn 2.
Jeremy Kinsman
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