Roundup: A northern populism

Every time I see someone writing about Canadian populist movements and the dismissive concerns that it could never happen here, I always shake my head because it does happen. To an extent, we are living through it right now. The Canadian Press has been doing some surveys to try and discover what the “northern populism” might look like, and while it’s not quite the same as the forces that brought Donald Trump into power, it nevertheless exists here.

Part of the difference we see is that in Canada, those populist forces are less white than they are in the States or in Europe, but the focus remains the same, which are the perceived ills of the liberal (big or small L, take your pick) “elites.” It’s not a secret that the way that Conservatives like Jason Kenney targeted ethno-cultural minority communities was by focusing on socially conservative issues, whether it was their reticence to embrace same-sex marriage, or things like marijuana, those were cues that helped them tap into those communities the ways that other populist movements haven’t, who are too busy dog-whistling to appeal to the more blatant racists. And while there are those undercurrents in Canadian populist movements, for which things like immigration remains a bugaboo, Canadian conservatives have managed to tap into a particular vein of “it’s not our immigrant community that’s the problem, it’s those other immigrants that are,” and that set up a kind of justification that “hey, we can’t be racists because these immigrants don’t approve of that immigration policy,” never mind that yes, immigrants can be intolerant of other racial or ethno-cultural minority groups that aren’t their own.

But populism is not a spent force in Canada. We saw how it operated with Rob Ford, and it’s alive and well in Alberta as they try to harness it into an anti-NDP political party. To an extent, the federal Conservatives and NDP have largely abandoned their own ideological underpinnings to be right or left-flavoured populists, and yes, there is a great deal of populist rhetoric underpinning the Liberal electoral platform, with appeals to this nebulous middle class that has no data to back up their claims (like stagnant wages for one spectacular example). Was Justin Trudeau able to harness it more effectively than his opponents? Yes. Does that mean that the scourge of populism that gave the Americans the Trumpocalypse is absent here? Not at all. That the composition is slightly different is an academic difference, but not reassuring in the least.

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Roundup: Clarity is not an appeal

With another court case involving First Nations children, you’d expect there to be a bunch of hue and cry, and there certainly has been, but I wonder how much of it is actually misplaced. In this case, the government is seeking clarity from the court on a couple of aspects of the Canadian Human Rights Tribunal decision on applying Jordan’s Principle, which is not an appeal. I’ve seen all manner of people, from reporters to advocates on Twitter railing that the government is appealing the decision. Asking for clarity is not an appeal.

If you actually read the story, they have legitimate concerns about the restrictions around case conferencing and on timelines in the decision, both of which seem to be pretty fair concerns to have given that both ministers are medical doctors and have expertise in what these issues mean. And I fail to see how getting clarity is trying to find a loophole to get out of the decision – it doesn’t track with either the promises, the investments made, or the fact that the whole file is more complex than many of the advocates would let on. You can’t simply pour money into a system that doesn’t have the capacity to absorb it and distribute it effectively, and you can’t just wave a magic wand into a jurisdictional minefield like this particular decision addresses and expect that everything will always have the best outcome by sheer force of willpower, especially when there are areas that are unclear to players involved.

The fact that I’ve been a justice reporter for the past couple of years means that I’ve been exposed to a lot of the sensitivities involved in complex cases, and this certainly qualifies, despite what certain advocates and opposition MPs would have one believe. Outrage that the government is going to court isn’t necessarily warranted, and most of the time, it’s been pretty disingenuous, whether it’s on this case, or in assessing the damages in the Sixties Scoop class action, where again advocates, opposition MPs, and even reporters characterized it as an appeal when it wasn’t an appeal – it was the next stage in a process where they needed to determine damages on a case-by-case basis rather than simply mailing out cheques. Not every time the government goes to court is nefarious, and people need to calm down because there is a lot of crying wolf going on that’s helping nobody, most especially the people who these decisions are supposed to benefit.

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Roundup: One bill passed, one deferred

After very little drama, the budget implementation bill passed the Senate, their tempers cooled overnight. Not that it was ever going to be a real constitutional crisis – blame some garden variety torque for that one, but this wasn’t a meek climb down. The Senate did launch one final jab at the Commons, reminding them that while they are passing the budget bill this time, they nevertheless have the authority to amend or veto budget bills if they so choose – a pointed rebuke to the provocative boilerplate language of the Commons’ rejection of their amendments.

This having been said, what the Senate didn’t do was pass Bill S-3, which aims to remove certain types of discrimination from the Indian Act. The Senate amended the bill to remove all of the discrimination, while the Commons nixed said amendments, and the Senate was more willing to dig their heels in this one. By deferring debate and votes on this until September, it puts the government into a particular legal bind because they were under a court deadline of July 3rd to pass this bill in order to comply with a court order. This didn’t happen, and one suspects that it’s because the senators at the centre of this want to put more pressure on the government to accept their amendments and remove that discrimination.

Meanwhile, Dylan Robertson got a copy of the court decision that refused to extend the timeline for the government.

We shall see what the government’s next move is. I suspect it will be another court extension, but whether the summer to think over the amendments in light of the judge’s ruling may prompt a change of heart. Maybe. Time will tell.

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Roundup: Provocative boilerplate

The House of Commons has risen for the summer, but how long it stays risen could be the big question as the Senate has two bills on its plate that they could send back to the Commons. The first of those is the budget implementation bill, after the Commons rejected their amendment. What inflamed tensions however was the boilerplate language that it was rejected for infringing on the rights and privileges of the Commons.

The fact that this is boilerplate eluded many Senators (and yours truly), given that it seemed to be yet another provocation given some of the underlying tensions in the current dispute. Yes, the language comes from Section 80(1) of the Standing Orders, but given that the Senate is trying to assert its independence and authority, the words seemed particularly targeted in this instance, especially as the Prime Minister rather dubiously claimed that the Senate has no ability to amend or reject budget bills when their only actual limitation is that they can’t initiate them.

Having received this rejection, the Senate decided to leave it overnight to think it over, and with luck, tempers will cool and they’ll get the better sense that this is boilerplate straight from the appendix of Beauchesne’s Parliamentary Rules and Forms, 5th edition, that that it likely wasn’t meant as a slight or a provocation. (Probably. But given how ham-fisted and tone-deaf the House Leader has a tendency of being, this isn’t a guarantee). It’s possible that cooler heads will prevail and they will defer rather than letting it ping-pong.

The more contentious bill may in fact be Bill S-3, which amends the Indian Act to remove gender-based discrimination, but the Commons rejected the Senate amendments that would eliminate other forms of discrimination. This particular bill may wind up being more problematic because it’s not a money bill and there is a bigger point of principle about discrimination and rights which a lot of senators get very exercised about (rightfully), and Indigenous senators in this case are particularly sensitive to. There have been suggestions that some are proposing a conference between the chambers to resolve the potential impasse, but we are not there yet.

Part of the calculation is that because the Commons has risen, a game of chicken is now being declared, where they are essentially daring senators not to recall them to deal with these amendments, and like Peter Harder has been doing, there will be all kinds of voices going on about the expense of such a recall. I think it’s overblown, but it wouldn’t be the first time that the Commons has used such a tactic to try and force the Senate’s hand into backing down on passing bills at the end of the sitting.

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Roundup: Amendment and attempted intimidation

As the spring sitting of Parliament draws to a close, and the Commons is getting tired and cranky as MPs are restlessly looking to get back to their ridings, all eyes are on the Senate to see if they’ll pass the budget bill unamended so that MPs can leave, or if they’ll be forced to stick around to deal with delays. It looks like the latter is going to happen after the Senate voted to adopt changes made at the committee that would remove the automatic escalator on beer and wine taxes. (There is some debate around this – while on the one hand there is the argument that increases won’t be scrutinized in future years by Parliament, there is also a reminder that the indexation fight was settled years ago).

So while this means that the Commons wasn’t able to rise last night, and may have to stick around until Thursday, depending on whether or not they pass it at Third Reading tonight, and how fast it takes the Commons to turn around a vote on accepting or rejecting (almost certainly the latter) the amendment.

But that’s not the only curious part of this tale. Apparently when the vote was about to happen, all manner of Liberal MPs and ministers arrived in the Senate to watch the vote happen – but not in the gallery. No, they were instead on the floor of the Senate, behind the bar at the entrance.

While this attempt at intimidation is quite unseemly in and of itself, I’ve also been hearing complaints that Senator Peter Harder, the Leader of the Government in the Senate – err, “government representative,” is admonishing senators not to amend bills this late in the game because recalling the House of Commons to pass or reject those amendments “is expensive.”

I. Can’t. Even.

Telling Senators not to do their constitutional duties of reviewing and amending legislation because it might inconvenience a few MPs is gob-smacking in and of itself, but couching it in dollar terms is beyond the pale. Apparently, we can only have parliamentary democracy if it’s done on the cheap. Why have oversight or hold the government to account if it’s going to cost any additional dollars? I guess we might as well pack it all in and roll over for the government – costs too much otherwise. Sweet Rhea mother of Zeus…

Update: It seems there were some Conservatives there as well.

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Roundup: Demanding ATIP perfection may be the enemy of the good

I find myself torn about the government announcement on new legislation to amend the Access to Information Act because on the whole, they made most of the changes that they promised to, but they failed to uphold one promise, which was to make the Act apply to the PMO and minister’s offices. And yes, We The Media let them know how displeased we were about it.

Part of the problem here is that like so many of their other election promises, it may have been a stupid one – kind of like their promise around electoral reform. Why? Because it was always going to be problematic to promise access to cabinet documents, and there’s a very good reason for that, because much of that information should remain private because it will otherwise damage the ability for there to be unfettered advice to ministers or between cabinet colleagues, and they need to have space to make these kinds of deliberations, otherwise the whole machinery of government starts to fall apart.

Like Philippe Lagassé says, the better discussion would have been to have specific proposals as to what falls under cabinet confidence. Currently the Information Commissioner has some determination around that, and with the changes in this bill, the onus will be reversed – the government will need to convince her (and if that fails, the courts) that information should remain secret, as opposed to her having to take the government to court to get that access. That’s significant.

There is a lot of good in these changes, but I fear that it will be lost amidst the grumbling that it didn’t go far enough. And let’s face it – sometimes We The Media are our own worst enemies when we use Access requests for cheap outrage stories rather than meaningful accountability, and then wonder why the government suddenly clamps down and turns to message control, and worst of all, nobody wants to talk about that problem. That may wind up making things worse for everyone in the end.

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Roundup: A swiftly-moving “stalled” bill

An odd narrative has been developing over the past few days about the budget implementation bill being “stuck” in the Senate, and that senators there are “holding it up” as the sitting days in the Commons tick down. And I’m really not sure where this impression comes from because the bill has only been there since Tuesday.

Quite literally, the bill was passed in the Commons on Monday, read in at First Reading in the Senate on Tuesday, passed Second Reading on Wednesday, and had the minister appear at committee on Thursday, and it was later that day that the motion to split the bill was voted on. (The Senate didn’t sit on Friday, for the record). If anyone can please explain how this is “holding it up” or “stuck,” I’m frightfully curious as to how exactly it works.

Justin Trudeau, meanwhile, went on The West Block yesterday and reiterated his praise for the Senate’s work and saying that he expected that this particular attempt to “alter” the budget bill is just “growing pains.” Err, except by altering, they are simply trying to split one section out so that it gets further study, so that the rest of the budgetary elements can get passed, while the section that does need further study gets it. That’s not exactly a major alteration, and they’re not looking to kill that section of it either – just ensure that it’s going to work like it’s supposed to. But then Trudeau insisted that it’s a well-established practice that the Senate always defer to the Commons on money bills.

The hell it is. Constitutionally, the Senate can’t initiate money bills, but that doesn’t mean they simply defer on all of them. Hell, the very first bill they passed in the current parliament were the Supplementary Estimates (which is a money bill), and lo, they had to send it back to the Commons because they forgot to attach a crucial financial schedule to it. Should they have deferred to that flaw? Yes, the Commons is the confidence chamber, and the chamber of “democratic legitimacy,” but Trudeau is conflating a number of different things here, and it’s a bit disappointing because he should know better.

And I will remind everyone that this current Senate, no matter how many bills it sending back with amendments, is still nowhere near as “activist” as the Senate was in the Mulroney days, where they forced him to an election over the free trade agreement and to use the constitutional emergency powers to appoint an additional eight senators in order for him to get the GST passed. The current iteration of the chamber, while they are sending more bills back with amendments, will inevitably defer. That the government is accepting many of those amendments shows that perhaps *gasp!* it was flawed legislation to begin with (not that the Harper government using its illegitimate whip over their senators to pass bills made them any better, because their court record shows they weren’t).

But if we could have fewer terribly media headlines putting forward a patently false narrative about what’s going on in the Senate right now, that would be grand.

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Roundup: Trudeau laying in the Senate bed he made

There is a renewed round of wailing and gnashing of teeth about the Senate feeling it oats and flexing its muscles, and yesterday it was the Prime Minister doing it. Apparently deliberating and amending bills is fine unless it’s a budget bill, in which case it’s a no go. The problem with that is that of course is that a) there is no constitutional basis for that position, and b) if the whole point of Parliament is to hold the government to account by means of controlling supply (meaning the public purse), then telling one of the chambers that it actually can’t do that is pretty much an existential betrayal. So there’s that.

But part of this is not so much about the actual issue of splitting out the Infrastructure Bank from the budget bill – which Senator Pratte, who is leading this charge, actually supports. Part of the problem is the principle that the Senate isn’t about to let the Commons push it around and tell them what they can and can’t do – that’s not the Commons’ job either. As Kady O’Malley delves into here, the principle has driven the vote (as has the Conservatives doing their level best to oppose, full stop). But some very good points were raised about the principle of money bills in the Senate, and while they can’t initiate them, that’s their only restriction, and they want to defend that principle so that there’s no precent of them backing down on that, and that’s actually important in a parliamentary context.

As for this problem of Trudeau now ruing the independent Senate that he created, well, he gets to lie in the bed that he made. That said, even as much as certain commenters are clutching their pearls about how terrible it is that the Senate is doing their constitutional duties of amending legislation and sending it back, it’s their job. They haven’t substituted their judgment for those of MPs and killed any government bills outright and have pretty much always backed down when the Commons has rejected any of their amendments, and that matters. But it’s also not the most activist that the Senate has ever been, and someone may want to look to the Eighties for when they were really flexing their muscles, enough so that Mulroney had to use the emergency constitutional powers to add an extra eight senators to the Chamber in order to pass the GST – which was a money bill. So perhaps those pearl-clutchers should actually grab a bit of perspective and go lie down on their fainting couch for a while.

On the subject of the Senate, it’s being blamed for why the government hasn’t passed as many bills in its first 18 months as the Harper government had. Apart from the fact that the analysis doesn’t actually look at the kinds of bills that were passed (because that matters), the reason why things tend to be slow in the Senate is because the Government Leader – err, “representative” – Senator Peter Harder isn’t doing his job and negotiating with the other caucuses and groups to have an agenda and move things through. That’s a pretty big deal that nobody wants to talk about.

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Roundup: The disingenuous framing of a committee report

As you may have heard, the Heritage Committee released their long-awaited study on suggested ways to help the local media landscape in Canada. And I’m not here to talk about that, however, but rather how the narrative got completely spun into “Netflix tax!” or “Internet tax!” which wasn’t exactly what they were proposing either. Still, it became a convenient cudgel by which to try and bash the government with.

And that’s the bigger problem with this whole affair – that a committee report is being used to paint the government when it’s backbenchers who are on the committee. That separation between government (meaning Cabinet) and a committee of the legislature is important, and conflating the two is being wilfully disingenuous and makes the problem of not understanding how our parliament works even worse.

Paul and Aaron both have some very valid points. When the opposition frames it as “Netflix tax!” it’s sadly how most media will report it as well, and I didn’t see a lot of corrections going on about what the report actually said, and that’s a problem. But Aaron also has the point about how the media loves to jump on differences of opinion in parties, but when the parties themselves frame the issue, the media often gets swept up in those narratives.

Remember when there were those Conservative backbenchers trying to float some backdoor abortion legislation or motions that the government distanced themselves from but the NDP screamed bloody murder about hidden agendas and so on? This is not far from the same thing. And they know they’re being disingenuous, but they’re doing it anyway, no matter how much they’re actually damaging the perceptions of the institution.

That said, I could be really mean and point out that it may be hard for the Conservatives to tell the difference between backbenchers on a committee and the government seeing as during their decade in office, they essentially turned the committees into branch plants of the ministers’ offices with parliamentary secretaries ringleading the show and completely destroying their independence…but maybe I won’t.

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Roundup: A wake-up call on court complacency

The Senate’s legal and constitutional affairs committee released their report on judicial delays yesterday, and while I haven’t made it through the whole report yet, I will say that the highlights are pretty eye-opening.

While you may think that the issue of judicial vacancies is top of mind, it’s actually the culture of complacency that has infected the court system, with inefficient processes, poor case management, an unwillingness by some judges to take their peers to task for granting repeated adjournments, and the list goes on. Yes, judicial vacancies are in there, and this government has excelled in delays for all manner of appointments (witness the backlog of nominations for Officers of Parliament, for example). It’s part of what the Supreme Court of Canada was hoping to get at with the Jordan decision (and may refine that somewhat more with the upcoming decision on Friday), but it’s clear that a lot of processes need to change.

I know there has been some work done, and I’ve written a bit about things like the move to do more summary judgments in some cases rather than going to full trial, and it can work. I just wrote a story last week where it did, and the biggest delay in the case was getting an actual hearing date. But some of the bigger problems remain structural, with things like inadequate mental health services that wind up processing these people through the courts rather than getting them proper treatment, or not having culturally appropriate services for Indigenous offenders which would do more to address their concerns and keep them from recidivism rather than keeping them cycling through the system (or out of jail entirely). Things like legal aid funding are also important to the smooth operation of the system, but one has to wonder if it’s not just giving the court system more resources, but also better drafting laws so that we deal with crime in a better way rather than just trying to look tough on the issues.

Anyway, what I’ve read so far looks good and resonates with what I’ve heard in my own justice reporting, so maybe, just maybe, this government can take some of the recommendations seriously and not just thank them, promise to consult further, and put it on a shelf.

(Incidentally, Christie Blatchford, who covers a lot of trials, is full of praise for the report).

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