My Thoughts on the Aboriginal Title SCC Decision: Part 2

The National Post today (Wednesday July 2) printed my op ed on the impact of the recent SCC decision on Aboriginal title.  They haven’t posted a copy on the website yet and I’m not sure they will (the Canada Day holiday has played some havoc with the publishing schedule!).

So, just in case they don’t publish it online at some point, below is the raw, un-copyedited version of the op ed.  I hope my much more legally-informed and inclined colleagues (I’m looking at you guys, Macfarlane and Baker!) will tell me whether I’m right or wrong?
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Headline: A recipe for Indigenous Paralysis?

Of all of the dispute resolution mechanisms available to Indigenous peoples and the Crown in Canada, the judicial system is probably the worst of the lot.  Rarely do judicial decisions create harmony and compromise between two parties.  Instead, they frequently produce winners and losers and all of the negative feelings that come with being labeled as such.

Canadian judges have long been aware of this fact, which partly explains why it took them so long to clarify the exact nature of Aboriginal title in this country.  Previous to this decision, Canadian courts had urged Aboriginal and non-Aboriginal leaders to negotiate their disputes rather than litigate them.  This recent decision, however, dramatically changes this long-standing message from the bench, with potentially dire and unintended consequences.

One of the key mechanisms for addressing the Aboriginal land question in Canada has been the treaty process.  Although far from perfect, Aboriginal groups have been working with the Crown to negotiate comprehensive land claims agreements to facilitate economic development and empower their communities to exercise their autonomy within the broad legal framework of Canada.  Remember that the Supreme Court had previously refused to clearly spell out the nature of Aboriginal title, and so it made sense for Aboriginal groups to negotiate with the Crown.

This new decision, however, radically changes the incentives facing Indigenous people.  Now, we are likely to see Indigenous groups across Canada abandon negotiations in favour of simply asserting their title and sovereignty to all their lands.  Why bother negotiating a modern treaty, which involves giving up Aboriginal title in exchange for a mixed bag of ownership rights to a much smaller portion of Aboriginal lands, when you can exercise something akin to fee simple ownership over all of your traditional lands right away and without the time and expense of negotiating a treaty?

If Aboriginal groups choose this path, then the Crown will have to decide how to react.  Will it radically reform the treaty process to bring Aboriginal groups back to the table? Or will it seek confrontation by pushing the “compelling and substantial public purpose” angle to push development forward despite Aboriginal opposition?  Given the track record of this federal government, I think the latter strategy is more likely and Canadians should brace themselves for years of protests and confrontations.

A second unintended consequence of this decision, and one that I think is just as important as the others, is that it potentially empowers individual Indigenous citizens to hold not only the government of Canada accountable for its actions, but their Aboriginal leaders as well.  Aboriginal title now means something akin to fee simple rights, and which is collectively held by the Aboriginal community.  This also means, among other things, that Aboriginal groups may also face potentially powerful restrictions on how they can use their lands now and in the future.  According to the Supreme Court, lands held under Aboriginal title cannot be used in such a way as to threaten their future use by future generations.

What this means in practice is that even if an Aboriginal government grants its consent to a major economic development project, an individual band member could successfully sue to prevent that development from occurring on the basis that the project threatened the future use of the community’s lands.

It is also possible that band members might use this new definition of Aboriginal title to thwart other land use projects besides resource extraction, such as building casinos and even housing subdivisions. A band member might successfully argue that building a multimillion dollar casino will prevent future band members from using that particular plot of land for traditional cultural practices, like hunting and fishing.

There’s no question that this decision is a “game changer.” What’s unclear is exactly how the game has been changed and for whom.

Christopher Alcantara is an associate professor of political science at Wilfrid Laurier University. His latest book, Negotiating the Deal: Comprehensive Land Claims Agreements in Canada, was published last year by University of Toronto Press and was a finalist for this year’s Donald Smiley Prize.

 

What does history teach us about politics?

Published June 23, 2014, in the Waterloo Region Record.

The deep thinkers who serve the various political parties in Ottawa have been scratching their heads over the same question: what does the election of Kathleen Wynne’s majority Liberal government in Ontario imply for the federal election, scheduled for Oct. 19, 2015?

The short, easy answer is, “probably not much.” The election is 16 months away. One week can be an eternity in politics; to travel 16 months into the political future requires a time machine rather than a calendar. Anything can happen in 16 months, and almost certainly will.

Who would have predicted 16 months before the June 1968 election that Lester Pearson would resign as Liberal leader and prime minister, that he would be succeeded by a new recruit, Pierre Trudeau, and that a strange phenomenon, dubbed Trudeaumania, would propel the Liberals to a majority government? Who would have predicted 16 months before the stunning October 1993 election that Canada would gain its first female PM and lose her almost immediately as the majority Progressive Conservative government disintegrated, retaining only two seats in the whole country as a separatist party became the official opposition, just a pair of seats ahead of a new protest party, Reform, which replaced the Tories as the voice of the West?
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Who would have predicted 16 months before the May 2011 election that an “orange wave” would sweep Jack Layton’s NDP into the position of official opposition, reduce the Liberals to third place and, in the process, hand Stephen Harper and his Conservatives a majority government? And, finally, who would have predicted 16 months ago, when Justin Trudeau was elected leader of the Liberals, that he would lead them to the top of the opinion polls and keep them there for 14 unbroken months, right up to the present?

If history teaches us nothing else about politics, it is that the only safe response when contemplating events many months in the future is: “I don’t know.” But political thinkers and practitioners, such as pollsters and pundits, hate those three little words. Have you ever heard Stephen Harper admit, “I don’t know?” I thought not. Doubt has no place when it comes to political forecasting.

That said, we all look for threads or clues to reveal the future. Some analysts probing the Ontario election results have noted the tendency of voters in the province to play a balancing game. When the Liberals are in power in Ottawa, they like to balance the scale with Conservatives at Queen’s Park. And vice versa. This balance-of-power theory suggests Wynne’s victory bodes well for Harper’s Tories, especially in the Greater Toronto Area, while it bodes ill for Trudeau’s Liberals.

Other analysts see in the Ontario vote a rejection of Tim Hudak’s right-wing agenda and an embrace of Wynne’s centre-left approach. If that sentiment carries over to the federal election, it would to play to Trudeau’s advantage and to Harper’s disadvantage in the province where national elections tend to be won and lost.

Having already admitted I don’t know, permit me to offer a couple of observations. First, there is growing arrogance in Harper’s Ottawa — a my-way-or-the-highway attitude — that I don’t think sits well with the sort of Ontarians who voted for Kathleen Wynne. Second, Wynne didn’t win just because she positioned her Liberals as the only choice on the progressive side of the ledger. I think she won because she projected an air of authenticity that neither of her opponents could rival. Hudak seemed driven by narrow political expediency, while Andrea Horwath, the NDP leader, tried to transition from social democracy to conservative populism. Neither worked.

By comparison, Wynne came across as the real goods. When she talked about equity, she did so with conviction and passion. She was believable. Voters are pretty good when it come to spotting the unbelievable. At least, they are in Ontario.

Will this have any bearing on the 2015 federal election? Perhaps not. Sixteen months is more than an eternity in political time.

Cristopher Cochrane in the Globe and Mail: Ontario takes pride that gay premier’s win taken in stride

Published June 13, 2014, in the Globe and Mail.

Associate Christopher Cochrane was quoted in an article on the Globe and Mail which discusses the Ontario’s first elected openly gay premier, Kathleen Wynne. Full article available here.

Anna Esselment in the Record: 1,650 local voters declined ballots on June 12

Published June 20, 2014, in the Waterloo Region Record.

Associate Anna Esselment was interviewed in an article that discusses the extremely high number of voters who declined their ballots during the 2014 Ontario election. Full article is available here.

Anna Esselment in the Record: Voter turnout goes up in Ontario election

Published June 13, 2014, in the Waterloo Region Record.

Associate Anna Esselment is interviewed in an article that discusses the rise in voter turnout in Ontario for the 2014 general election. She suggests that this rise is nothing to cheer about. Full article can be found here.

Ontario election highlights challenges now facing pollsters

Published June 19, 2014, in the Waterloo Region Record.

Given the praise ringing out about the supposedly wonderful campaign run by the Liberals that resulted in last week’s Ontario election results, it might surprise some to note that the improvement in the popular vote for the victorious Liberals was no greater than for the also-ran New Democrats.

Both gained a bare one per cent compared to their 2011 performance. On the other hand, Tim Hudak’s Progressive Conservatives declined by four per cent. These seemingly modest changes in support levels account for the seat shifts that cost the Conservatives nine members, and transformed the legislature into a majority for Kathleen Wynne.

It is natural for winning parties to make various self-serving claims in interpreting their triumph about how it was a mandate for this or that. However, there shouldn’t be any misunderstanding that this election was more Hudak’s loss than a victory for Wynne.

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Barry Kay on Global News: Breaking down the election results

Published June 13, 2014, in the Global News

Dr. Barry Kay meets with Global News on the Morning Show to discuss the results from the 2014 Ontario Election. The Liberal majority came as a surprise to most but Dr. Kay was prepared for a surprise as the polls were so scattered. The full video can be found here.

Good candidates do make a difference

Published June 16, 2014, in the Waterloo Region Record.

How much difference do local candidates make in the outcome of an election?

If you ask the High Strategists who direct federal and provincial campaigns from Ottawa or Queen’s Park, the answer would be: not all that much difference. They tend to rank the most important factors as the party brand, the leader, the platform, the strength of their organization on the ground, and the amount of money they have to spend. Local candidates — good, bad or indifferent — tend to place near the bottom of the list.

They used to say that a little yellow dog could be elected in Saskatchewan if it were a Conservative or in Quebec if a Liberal. An exaggeration? Of course. But to the minds of many High Strategists, the candidate is worth only about 5 per cent of the vote or, perhaps, 10 per cent in exceptional situations.
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Well, I wonder. I have long felt that good candidates make a huge difference, especially in byelections, but in general elections as well. To prove my case, let’s look at three area races in last week’s Ontario election.

Kitchener-Waterloo. Catherine Fife became the MPP for K-W in a September 2012 byelection. A New Democrat in alien territory (the riding had been held by Conservative Elizabeth Witmer for the previous 22 years and the Liberals were assumed to be the only viable alternative to the Tories), Fife realized from the moment she won that she would face an uphill battle to hold the seat. Not knowing when the general election might happen, she just kept running.

Fife is one of those politicians who actually listens to people. She used her personal political skills and 21 months of hard work to put a lock on the riding. Although it was not a happy election for the NDP, Fife bucked the Liberal trend to win by 4,000 votes. She will be hard to dislodge.

Cambridge. This was a stunner. The Liberals hadn’t elected a provincial member in Cambridge (or Waterloo South, as it was then) since 1943, the year when Conservative George Drew became premier of Ontario (for trivia buffs, it was also the year that Oklahoma! opened on Broadway and Lassie Come Home took the movie box office by storm). Seventy-one years! It was that long ago.

Yet Liberal Kathryn McGarry, a nurse who had run and lost on two previous occasions, proved conclusively that hard work and perseverance pay off. She won on her third try, defeating first-term Tory MPP Rob Leone, a political-science professor. McGarry and her people outhustled Leone’s. Like Fife, she listened to voters’ concerns, including their uneasiness about Leone’s leader, Tim Hudak. She won handily, by 3,000 votes.

Kitchener Centre was the third area riding to which I paid particular attendance. It was widely advertised as a provincial bellwether because of its reliable tendency to elect a candidate from the party that won the election. It did so again in 2011, returning John Milloy, a member of Dalton McGuinty’s Liberal cabinet, although by a mere 323 votes as the party was reduced to a minority government.

This time, Kitchener Centre was an open seat, Milloy having announced his retirement from politics. With its party running ahead in the polls, the Progressive Conservatives were confident they could take the riding along with the province. But the voters of Kitchener proved to be a more accurate barometer than the pollsters.

The Liberals nominated a local television personality, Daiene Vernile, from CTV in Kitchener. Media celebrities often flop as political candidates (voters don’t take them as seriously as they take themselves), but in Vernile’s case, profile, personal popularity and strenuous campaigning enabled the Liberals to widen their margin from 323 measly votes to nearly 7,000.

The point of all this is that good candidates are essential. They can win in difficult elections, even when the polls are sour — and even when seven decades of electoral frustration tells them not to bother.

Moderate Ontarians favoured Grits

Published June 14, 2014, in the Waterloo Region Record.

The voters of Ontario sent two clear messages on Thursday.

The first message, addressed to all political leaders and their parties: Ontarians are fed up with arguments about the errors and scandals of previous years and regimes. Forget those stupid gas plants. The people told the politicians they want to move on; they want them to address the challenges of the future, not the sins of the past.

Liberal Leader Kathleen Wynne got the message; her opponents did not, which is one reason why she is still premier and they are not.
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The second message: when all is said and done, Ontario remains a province of moderates. Ontarians prefer the safety of the middle of the road to the risks of the extreme right or left. Most people like their province pretty much the way it is. They may wish it was better run and able to create more opportunities for themselves and their children, but they don’t want it to be changed radically.

Wynne and NDP leader Andrea Horwath heard that message, but Progressive Conservative Leader Tim Hudak did not. He may be tone deaf. For some reason, he believed the conservative economic ideas he had solicited from U.S. Republicans and tea party sages would play in Ontario. They didn’t. His Millions Jobs Plan and proposal for deep corporate tax cuts cost him dearly.

Hudak’s party was a few points ahead of the Liberals in the polls in early May when he made the mistake of handing Wynne an issue with which to defeat him. As I wrote in a column on May 12, his PC predecessor, John Tory, had made the same mistake in the 2007 election with his promise of public funding for religious schools. This time, it was Hudak’s proposal to eliminate 100,000 jobs in the Ontario public sector.

It doomed his campaign. He was never able to explain — no one could — how cutting 100,000 jobs in the public sector would contribute to the creation of one million jobs in the private sector. It was “voodoo economics,” Ontario-style.

Hudak made it worse by presenting his cuts as the elimination of “positions,” glossing over the fact that positions are occupied by real people. Voters saw through that abstraction. They knew the 100,000 would include the breadwinner who lived next door, their kids’ teachers, emergency workers, inspectors who keep their water supplies and highways safe, or the single mom who depends on her part-time job in a government office. Unable to relate (and obsessed with reducing spending), the Tories seemed indifferent to the real needs of people.

Hudak announced his resignation Thursday night. He had no realistic alternative. He leaves, his departure unlamented even by his followers. Like John Tory seven years earlier, the election was his to lose — and he lost it with unpalatable policies and strategic errors. Andrea Horwath remains as NDP leader, pro tempore; after suffering two election defeats, the chances of a third chance are slim.

Just about all of the pollsters and pundits got it wrong on Thursday. The pollsters thought the outcome would be closer than it was: 39 per cent for the Liberals; 31 per cent for the Tories and 24 per cent for the NDP. But the Liberals were able to parlay their 39 per cent into a solid majority of 59 seats in the 107-seat Legislature.

Although it can be argued that Hudak lost the election, it can equally be said that Wynne won it. She understood the mood of the electorate; she offered policies that had broad appeal, and she relentlessly exploited the weaknesses of her opponents.

It was revealing that, as a CBC commentator noted on election night, her sexual orientation never became an issue.

The first and only openly gay government leader in Canada has just been handed a four-year mandate to run the largest province. There’s lots of room for everyone in the middle of the road.

Barry Kay on Global News: Four more years: Ontario awakes to a Wynne-led Liberal majority

Published June 13, 2014, in the Global News

Dr. Barry Kay is mentioned in an article on Global News discussing the results from the 2014 Ontario Election which saw Kathleen Wynne come out on top with a majority Liberal government. Full article available here

Barry Kay on CBC News: Why Tim Hudak isn’t walking away with the Ontario election

Published June 11, 2014, in the CBC News.

LISPOP associate Barry Kay was interviewed in an article discussing how the Progressive Conservative party had a great chance to win the 2014 general election but did not capitalize. Full article available here.

Naheed Nenshi at Congress and CPSA

A couple of weeks ago, I was really excited to see in the program a panel featuring Alan Broadbent, Benjamin Barber, Christopher Hume, Andy Sancton, and Calgary Mayor Naheed Nenshi.  Their task was to talk about Dr. Barber’s new book, and his idea for a super, world-mayoral parliament, to “rule the world.” I was curious to hear Barber speak, but was more interested in Mayor Nenshi. I’ve heard so many great things about Mayor Nenshi and so I came to the panel primarily to hear what he had to say about the role of cities in Canada.
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Well … I can’t remember the last time I actually booed a speaker (probably never!), but I came pretty close to booing loudly at this panel (I do admit to booing silently under my breath!).

I don’t remember everything that Nenshi said, and luckily, Andy Sancton and others (e.g. Zack Taylor) hammered away at some of the ridiculous things that he said.

I do remember a couple of things:

1) The mayor talked about how partisanship can frequently undermine the ability of city council to make good decisions. He believes in a world where citizens and councillors should avoid partisanship, political theory, ideologies, and just find a way “to agree.” He assumes that decisions about land use planning, economic development, and infrastructure are simply technical issues that can be solved purely by rational planning and thought.  I agree that there are certain issues that can be addressed in this way, but even decisions about garbage removal can have normative or ideological implications. How often should garbage be picked up, for instance? In Guelph, green bins are picked up each week, and garbage and recycling bins alternative every week (e.g. garbage one week; recycling next).  In other jurisdictions, all three are picked up every week, while in some places, there is no recycling or green bins.  These decisions aren’t just “technical” ones but frequently also turn on fundamental views about human behaviour in urban settings.  Indeed, I would argue that almost all political, public policy, and public administration issues turn on or are organized around different groups of ideas, or ideologies. To pretend otherwise is to automatically privilege whichever set of ideas are dominant within the leadership and decision-making structures at the time.

As well, partisanship can actually serve a useful function, even in municipal elections. As I’ve talked about before, partisanship provides important information shortcuts for voters, who then have a better idea about for whom to vote at election time.  Partisanship can make reaching an agreement harder, but it also can lead to stronger (or at least clearer) lines of accountability, and the creation of experienced and known alternatives for democratic alternation.

2) Relatedly, Mayor Nenshi talked about how post-partisanship (which I think he means the absence of ideological positions and rhetoric?) is better because it can generate better and more efficient solutions.  As an example, he talked about how a developer of a large skyscraper came to him and just like that (snap!), Nenshi was able to clear the way for the developer to build the skyscraper.  This story clearly illustrates that municipal issues don’t turn solely on technical standards, but are informed about coherent ideas on the role of economic and private forces in urban settings.

3) Nenshi also talked about how cities produce more revenue than they receive from the federal and provincial governments.  As such, he argued that cities needed to get that revenue back (it wasn’t clear how much; not all, but certainly a substantial sum).  As Andy Sancton and others pointed out, however, the feds and provinces provide all sorts of benefits to cities and other parts of the province, including redistributive ones for rural areas that don’t produce enough income yet are valuable for other, non-economic reasons.  More importantly, if we follow Nenshi’s arguments, then shouldn’t Fort McMurray receive all of the benefits from the oil sands?

4) Finally, I may have turned against Nenshi early on in his talk because of a series of comments that he made about political scientists.  In Jonathan Haidt’s vernacular, Nenshi’s initial comments may have pushed the elephant away from him right from the beginning! Nenshi began his talk by telling the audience that he originally was a business professor and that he and his colleagues used to make fun of political scientists.  Fine, no harm there.

Then he told the story about how political scientists frequently criticize him yet should have no right to do so because they wrote their dissertations on “gender and politics in the Victorian era” (his example).  Maybe someone should tell him that a PhD doesn’t just mean we have a research specialization, but that we also have a certain set of theoretical and methodological (and analytical) skills that allow us to understand and make sense of a variety of phenomenon, including those outside of our PhD dissertation.

Finally, he called into question whether political scientists produce any research at all that is relevant to cities.  He told a (hypothetical?) anecdote about how if we ask 10 people on the street whether they are left or right on the political spectrum, nine would say they don’t know, and one would be a political scientist running around trying to find anyone who would listen.

In all fairness, Nenshi was just doing his thing, which is to say he was giving his talk as a politician, rather than an academic or public intellectual, even though the setting was Congress. As further evidence that this was probably the case, he talked about how he frequently “bangs the gavel” at city council and throws out ideas to his councillors for free debate, without EVER building support behind the scenes.  Even though I have no empirical evidence to refute his claim, I still find it hard to believe that he never engages in any coalition building, ever.

So I guess it’s my fault for not setting my expectations accordingly for this talk.  Still, it was pretty disappointing.

 

 

Barry Kay on CBC News: Will Kitchener Centre voters again echo province-wide results?

Published June 10, 2014, in the CBC News.

Dr. Barry Kay dicusses how the Kitchener Centre riding and its its predecessor riding (Kitchener) have supported the winning party province-wide in every federal and provincial election for the last 30 years. Full article can be found here.

LISPOP on Global News: Polls suggest tight race with just days left in campaign

Published June 9, 2014, in the Global News.

LISPOP’s latest seat projection was mentioned in an article by James Armstong which suggests the Liberals could pick up 48 seats, the Progressive Conservatives 41 and the NDP 18. Full article available here.

Will fear trump loathing on election day?

Published June 9, 2014, in the Waterloo Region Record.

“In a very real sense, a vote for Andrea Horwath is a vote for Tim Hudak” — Ontario Premier Kathleen Wynne, writing in the Toronto Star, June 8.

There, in a nutshell, is the issue that will, in my view, determine the outcome as the ugly Ontario election campaign — a wretched excuse for a democratic exercise — lurches to a finish this week. Someone will win on Thursday, although it can be argued that no one deserves to win.

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For the Liberals, who seem to have a bit of wind in their sails in the closing days, the key to success is fear — fear of what would happen to Ontario if Progressive Conservative Leader Hudak (the man with “The Plan”) comes to power. For Wynne, this fear is a tool to make sure her Liberal supporters turn out to vote. And the same fear is a weapon to persuade wavering New Democrats to jump to the Liberals or, failing that, to stay home on Thursday lest they split the anti-Hudak vote.

Wynne did not mince words as she addressed voters in her Toronto Star commentary: “Like you, I am convinced that if Tim Hudak is given the slightest opportunity, he will destroy and dismantle so much of what you and I care about in this province.”

Strong stuff that, but this has been an election scarred by negative emotions — loathing of the Liberal legacy of scandals pitted against fear of the Hudak alternative. From this vantage point, it seems that fear may trump loathing.

I think Hudak made two mistakes. He played the scandal card too hard and too long without managing to convince very many Ontarians that Kathleen Wynne was culpable for the scandals that occurred on Dalton McGuinty’s watch. People wearied of all the scandal talk. Second, Hudak bet his political future on his “million-jobs plan” — an economic plan that experts panned and that Hudak himself was never able to explain to anyone’s satisfaction. All that the average voter could see was that Hudak planned to fire 100,000 public-sector employees, reduce some essential services, cut taxes on corporations and somehow pay off the deficit. It made no economic or political sense.

The NDP’s Andrea Horwath also made two mistakes. Having joined forces with Hudak to defeat the Liberal budget, she did not have an exit strategy to disengage her party from the Tories once the campaign began; she found herself playing second fiddle to Hudak’s attacks on Liberal scandals. Second, and more important, she lost her political bearings. By moving to the right (traditionally barren ground for socialist parties), she allowed Wynne to take over the entire left and centre-left of the spectrum.

The pollsters and pundits remain confused. Most pundits, though not all, declared Hudak the winner of last week’s leaders’ debate. He and Horwath kept Wynne on the defensive throughout the 90-minute encounter. Hudak stayed on message and he performed better than most pundits had expected him to. But he did not come across as being as likable as the besieged Wynne or even the aggressive Horwath, who lived up to her “Steeltown Scrapper” nickname.

It wasn’t much of a debate, and it failed to address such important issues as health care. In the end, I thought Hudak lost. He played well to his base, but he did not broaden it. He failed to dispel the perception that he can hardly wait to start slashing and burning at Queen’s Park. Kathleen Wynne comes across as a more sympathetic political leader, and that’s worth something at the polls.

The opinion polls are still unclear. There seems, however, to be some movement — although not a stampede, to be sure — toward the Liberals. Seat projections suggest another Liberal minority with a majority government, perhaps, being within the realm of possibility. If enough voters agree that a vote for Horwath is the same as a vote for Hudak, Kathleen Wynne will have a very pleasant Thursday evening.