All Commentary
Friday, January 1, 1999

Let’s Pierce the Government Veil

Why Shouldn't Politicians Pay for Their Blunders?

Karen Selick is an attorney in Ontario, Canada, and a columnist for Canadian Lawyer. Copyright © 1998 by Karen Selick.

Ontario, Canada—Although multiple births are becoming almost commonplace in the 1990s, quintuplets were considered a miracle in 1934 when the Dionne sisters were born in a small northern Ontario town. Their father, a poor farmer with five other children in the family to feed, soon discovered that his five baby girls might bring in some extra income during those tough Depression times. He accepted an invitation to exhibit the girls at the World’s Fair. Hastily, the province of Ontario stepped in and made the quintuplets wards of the province, ostensibly to protect them. They were taken away from their parents and deposited in a hospital-compound that was soon transformed into a virtual theme park called “Quintland.”

Quintland became a tourist attraction, drawing millions of curious visitors who were permitted to gaze through one-way glass at the five little girls during three daily “showings” over nine-and-a-half years. The quints themselves earned unknown amounts through endorsements. A trust fund was set up for them. When they turned 21, it contained $800,000, which was paid out to them over the next 20 years.

In early 1998, at the age of 63, the three surviving quintuplets, now virtually destitute, alleged that their trust fund should have contained a lot more than the $800,000 they had received. They claimed that the trust had been mismanaged and that money had been pilfered. They demanded compensation from the province of Ontario.

The province denied any legal responsibility, but nevertheless offered to pay them a pension of $2,000 per month each for the rest of their lives. At a press conference, they rejected this offer with the words, “We want justice, not charity.” One couldn’t help admiring the spirit with which those words were uttered.

However, a few weeks later, the sisters accepted the province’s offer of a $4 million lump sum, without seeming to realize that what they got was precisely what they wanted to avoid—charity, not justice. Or maybe something worse.

Justice would have consisted in identifying the individuals responsible for misappropriating their trust money and making those people pay compensation, either out of their ill-gotten gains or their other resources. Instead, the money will come out of the pockets of Ontario taxpayers.

Whose Responsibility?

Many of those now being asked to foot the bill hadn’t even been born back in the days when the quints were being put on display or when their trust funds were being dissipated. Others were mere children themselves, too young to vote the government out of office even if they had been aware of the misdeeds taking place. Still others were residents of other provinces or foreign countries and did not immigrate to Ontario until later. Among those who resided in Ontario at the time, many had voted against the government then in power. Others, who may have voted for that government initially, would never have sanctioned such actions if it had been in their power to stop them later.

Add up all these segments of the taxpaying population and you will undoubtedly find that the overwhelming majority of the people who will now have to bear the burden of this compensation claim are innocent of even the tiniest share of blame for the offenses. Forcing them to pay will not be righting a wrong. It will just be shifting the wrong from one group of victims to another. But the new victims, the taxpayers, will be so numerous that the injury to each will be diffuse and easy to ignore.

The number of people claiming compensation for government misdeeds in recent years is astonishing. A search through the Canadian Press database reveals literally dozens of unrelated claims. Clearly, many Canadians have suffered physical, emotional, and financial injury at the hands of the state.

If they all receive compensation out of tax money, we’ll witness the ludicrous spectacle of victims compensating other victims. Japanese Canadians who suffered internment and expropriation during World War II will be paying compensation to recipients of HIV- and hepatitis-tainted blood, who in turn will compensate David Milgaard for the years he spent in prison after his erroneous murder conviction. Milgaard will pay sexual assault victims at government reform schools, who will pay the victims of Alberta’s eugenics laws (sterilized against their will on the mere suspicion of mental inferiority), who will reimburse the Chinese immigrants of the 1920s for the racist head-tax imposed on them, and so on ad infinitum. The same chain of injustice can be found of course in the United States.

Collective Blame

This absurdity has its roots in the acceptance of collective responsibility for misdeeds that were conceived and implemented, as all human action is, by specific individuals. The government is not “us.” It is rather a tiny subset of individuals chosen from among us. These people are expected to know right from wrong. Their job is to enact and implement a system of laws that protects the rights of citizens. If they choose instead to exercise the coercive powers of government to violate the rights of citizens, it is they, not innocent bystanders, who should be held accountable—first, for not doing their jobs properly and second, for the harm they’ve caused.

We’ve had it backwards for centuries. We’ve allowed successive bands of so-called statesmen to occupy our legislatures, inflict or at least preside over one injustice after another, and then walk away free of all responsibility for the damage they’ve done. Meanwhile, they bask in praise for having served society, pension checks swelling their bank balances. The worst that ever happens to them, no matter how badly they’ve harmed their country or their countrymen, is that they don’t get re-elected.

It’s about time we rethought this. Corporate law has been allowing us to “pierce the corporate veil” for years in order to hold corporate directors responsible for company actions. Why not pierce the government veil? Why not trace the financial liability for genuine government wrongdoing back to the individuals who actually formed the government at the time of the transgression?

If making politicians pay for their blunders would discourage people from seeking public office, or from doing much while in office, so much the better. This might be the shock treatment they need to make them realize they are there primarily as guardians of our liberty, not meddlers in our lives.

The easier we make it for people to collect compensation by taking it out of the common pot so that the new victims won’t notice, the more such claims we will encourage. The more we discourage individual responsibility among our elected representatives and their employees by shifting the cost of their malfeasance to the taxpayers, the more such violations of rights we can expect to occur.

  • Karen Selick is the Litigation Director for the Canadian Constitution Foundation. She got her law degree at the University of Toronto in 1976, and was in private practice as a lawyer until 2009.