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(Anthony Jenkins/The Globe and Mail)
(Anthony Jenkins/The Globe and Mail)

Margaret Somerville

How to choose flood victims? Add to ...

How ethical is the Manitoba government's decision to deliberately breach the dike at Hoop and Holler Bend holding back the Assiniboine River?

As Premier Greg Selinger explained, the goal of this deliberate breach is to pre-empt "catastrophic and uncontrollable" flooding further downstream, which would put about 850 homes at serious risk. The breach is diverting water across farmland adjacent to the Assiniboine, southeast of Portage la Prairie, to the Elm River. This puts about 150 homes at risk and harms the farmlands it floods.

One ethical analysis that's been put forward is the utilitarian one - namely, that ethics requires us to do the greatest good for the greatest number of people. As the nature of the harm involved in either breaching or not breaching the dike is the same at first glance - flooding of homes and farmland - this seems to indicate that intentionally breaching the dike is ethically justified, as that involves a lesser amount of harm overall to fewer people.

But are the two incidents of flooding directly comparable ethically? The natural flooding is an "act of God," a force of Nature, while the deliberate flooding results from human agency. Those involved in that agency - the government decision-makers and all of us as a society, because it is a governmental decision - are morally, and possibly legally, responsible for harm caused in the latter situation in ways that we're not in the former, because we're complicit in inflicting the harm that results from our intentional act.

When we have to balance allowing harms to one group against intentionally inflicting harms on another, and, as here, doing the latter is not an inherently wrongful act, we must ethically justify inflicting those harms.

To test whether we have such a justification, we often start from a principle that requires us to choose the least invasive, least restrictive alternative reasonably available and likely to be successful in achieving a justified goal. This is a general formulation of a doctrine of necessity, which we find in both ethics and law.

For the defence of necessity to be available to justify deliberately inflicting harm, the person relying on it must not have caused the situation that requires the harm inflicting intervention; the harm avoided must clearly outweigh the harm inflicted; and there must be no reasonable way to avoid the greater harm other than by inflicting the lesser harm.

So let's look at the decision making about the dike at Hoop and Holler: People were warned of the intended intervention in advance and, it seems, their objections and concerns largely listened to. Their informed consent to the plan was not sought or given, but it was not required. This was not an intervention primarily at the individual level, but at the societal one, involving the exercise of administrative discretion. Such decisions are not governed by the same ethical or legal principles as those relating just to private individuals. In short, the ethics at the different levels are not necessarily the same and the law differs, too. For instance, governments are not legally liable, even for negligence, in relation to their discretionary or policy decisions.

To avoid as much harm as reasonably possible, the government worked to protect the affected people and property before breaching the dike, including by putting flood barriers around the 150 homes. Carrying out the decision was delayed several times to make sure it could not be avoided and to give people as much time as possible to prepare. All these facts indicate that the deliberate breach of the dike would seem to be ethically and legally justified under a doctrine of necessity.

But the doctrine of necessity requires further ethical and legal analysis, at a second stage, in relation to compensation.

If breaching the dike were held to be absolutely privileged - that is, in these circumstances necessity is a complete defence to legal liability - there is no legal requirement to compensate for the harm inflicted. For example, harm inflicted in engaging in armed conflict usually comes within this rubric. If, however, necessity is characterized as only a partial defence, while the act causing the harm is legally justified, there will be a duty to compensate for that harm. Courts look to justice to decide which applies and I believe it would be the latter. In ethics, the duty to compensate is likely to be broader than that in law.

It's reassuring, therefore, to learn that Mr. Selinger has told the 150 residents affected by the deliberate breach that they will be fully compensated to the extent that is possible with monetary compensation. Justice requires no less.

And, finally, we need to consider the Charter of Rights and Freedoms. Breaching the dike is a governmental action, which means it must comply with Charter requirements. That means it must not infringe on citizens' rights to "life, liberty and security of the person," except to the extent that any infringement is "in accordance with the principles of fundamental justice" (Section 7) or, if not in such accord, can be justified under Section 1 as a "reasonable limit prescribed by law [such]as can be demonstrably justified in a free and democratic society." In my opinion, a court would rule that this decision does not breach the Charter - in other words, that it is constitutionally sound.

Margaret Somerville is founding director of the Centre for Medicine, Ethics and Law at McGill University.

Editor's Note: The government of Manitoba breached the dike at Hoop and Holler Bend, not the Canadian Forces, as stated in the original newspaper version of this article and an earlier online version. This online version has been corrected.

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