Roundup: Privilege case at the SCC

There is an interesting case being heard at the Supreme Court of Canada today, which goes to the heart of how laws are made in this country. An Alberta First Nation, the Mikisew Cree, applied to the Federal Court for judicial review of the 2012 Conservative budget implementation bill after its changes to environmental legislation didn’t consult them, per Section 35 of the Constitution. The problem? You can’t have the courts interfere with the legislative process. That goes to the heart of parliamentary privilege and the separation of powers.

The Federal Court allowed a partial application, citing that they should have been given an opportunity to make submissions, but this was overturned by the Federal Court of Appeal, which (correctly, in my view) cited that the Federal Court Act had no jurisdiction over the legislative process, and that it offended parliamentary privilege and the separation of powers, and there was an additional issue that this omnibus bill was of general application and did not apply specifically to this First Nation. The Supreme Court of Canada now gets to hear the issue and decide whether or not this should be the case in the face of the constitutional duty to consult.

While I’m sympathetic to the need to consult on these issues, particularly on issues that will affect their lands and ability to have engage with the processes that are created out of the regulator bodies that are engaged by the legislation once it is enacted, I do have a problem with the demands that any outside group be included in the drafting process. And while the current government has made a great deal of effort doing consultations before they draft bills (and there is no shortage of grousing as to how it slows down the process), there are usually plenty of opportunities to intervene once the bill is tabled and reaches committee hearings in both the Commons and the Senate. This is how parliament is supposed to work. Trying to short-circuit this has an effect on things like cabinet secrecy, and more likely, could grind the legislative process to a halt if you were dealing with a group that wanted to be obstinate. But also, it bears reiterating that parliamentary privilege and the separation of powers are not things to be trifled with, because it undermines the ability of parliament to do its work. While I’m confident that the Supreme Court will do the right thing, I do worry that this case has made it this far and could be victim of novel thinking that could do lasting harm to our institutions.

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Roundup: Turning down the committee

It was pretty much as expected. The Commons ethics committee met yesterday and the opposition MPs assembled pleaded with the Liberal majority on the committee to think of the children – err, I mean, think about the meaning of holding the government to account when it came to the demand to call for the PM to appear to answer questions about the Ethics Commissioner’s findings regarding his vacation to the Aga Khan’s island. I will grant that the Liberals could have insisted that they go in camera for this, but didn’t. Rather, they simply said that, having read the report, and taking into account that the PM had apologised, answered questions in the media, and would be answering questions in QP on this topic, that it was enough. And so the motion was defeated 6-3, which surprised no one.

From the arguments presented, there is a little more that we could dig into. For example, Nathan Cullen said he wanted the PM’s suggestions on how to improve the rules – but if he cared about those, he would have taken the many suggestions that Mary Dawson has been making over the past decade and implemented those, but he, nor his party, nor any parliamentarian, has been keen to do that. And his worrying that the PM is ultimately accountable to parliament is true, but that ultimately means that if Cullen is so concerned, he can move a motion of non-confidence in the PM on the NDP’s next Supply Day and try to convince the Liberal ranks of the merits of his argument. As for the Conservatives, they seemed far more interested in seeing some grovelling the PM, and demanding that he repay the full cost of the trip (which would include the Challenger and security costs), never mind that during the Harper era, his “reimbursement” for his own private trips was supposed to be at economy fares, but nobody could find fares as low as the ones he was repaying (and there were several incidents of party stalwarts getting subsidized airfare improperly). And that whole incident nearly six years ago when they wanted Harper to appear to answer questions on the ClusterDuff Affair? Well, that was then and this is now, and Trudeau promised to be more open and transparent. (Err, remember when Stephen Harper rode into office on the white horse of accountability and transparency? Yeah, me neither).

And while opposition staffers chirp at my on the Twitter Machine about how it’s the role of MPs to hold the government to account – true – and that a committee setting is less theatrical than QP – not true – I will reiterate that the point of this exercise is not actually about accountability, but rather about gathering media clips under the protection of parliamentary privilege. If you think there would be sober questions asked, and that this would be a serious exercise in accountability, then you’re sorely mistaken. It remains a political calculus, and Trudeau has determined that it’s not worth it to spend an hour having the most torqued accusations hurled at him in the hopes that something sticks, and hoping for that “gold” clip that they can share around social media. If we’re going to lament the lack of accountability, then everyone needs to take a share of responsibility there – not just the PM.

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Roundup: Legislative hostages

Every few months this story comes around again – that the government misses have a senate that acted more like a rubber stamp than the active revising body that they are. And the government – and Trudeau in particular – will say oh no, we believe in an independent senate, and we want them to do their jobs, unless of course that means amending budget bills, in which case they invent reasons why the Senate isn’t supposed to amend them, because they’re money bills (not true – the Senate is only barred from initiating money bills, not from amending them), and so on. And lo, we have yet another example this past weekend, but this time over the transport bill that is currently in the Senate. But because this is an omnibus bill with several parts to it (which isn’t to say that it’s an illegitimate omnibus bill – these are all aspects dealing with transportation issues), and because the government wouldn’t let it be pulled apart, the easier stuff couldn’t get passed first while they dug into the more challenging parts. But, c’est la vie.

What does bother me, however is this particular snideness that comes from some of the commentariat class over these kinds of issues.

The three senators in this case were Senators Carignan, Mercer, and Lankin. Two of the three, Carignan and Lankin, had previously served in elected office. They’re no more or less unknown than the vast majority of MPs, and “unaccountable” is one of those slippery terms in this case because they exist to hold government to account. They’re also just as much parliamentarians as MPs are, for the record, not simple appointees. Gilmore also has this bizarre notion that the business of accountability – which is the whole point of parliament – is somehow “holding hostage” the work of the elected officials. Last I checked, the point of parliament wasn’t to be a clearing house for the agenda of the government of the day, but rather, to keep it in check. That’s what they’re doing, just as much as judges – you know, also unknown, unaccountable appointees – do.

The one partial point I will grant is the “self-righteous” aspect, because some senators absolutely are. But then again, so are a hell of a lot of MPs. The recent changes to the selection process for senators may have amped up some of that self-righteousness for a few of them, but to date, nobody has actually held any legislation hostage, and the government has backed down when they knew they were in the wrong about it. So really, the process is working the way it’s supposed to, and that’s a good thing.

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Roundup: The existential threat to parliament nobody notices

After stories about how some MPs – both Conservative and Liberal – used the Canada Summer Jobs programme to funnel those job grants to anti-abortion and anti-gay organisations, the government has made a few tweaks to the programme so that any organisation that is looking for grants needs to sign an affirmation that they will agree to comply with Charter values, as well as its underlying values including
“reproductive rights, and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation, or gender identity or expression.” And while that’s all well and good, they didn’t fix the glaring problem with this system – the fact that it’s MPs who are signing off on these grants.

No. Seriously, no.

This is antithetical to the whole point of Parliament. Parliament is about holding the government (meaning Cabinet) to account, and part of that is by controlling the public purse. MPs don’t give out money – they ensure that the government can only spend it wisely. By Service Canada sending lists of groups recommended to receive funding, and then having the MPs validate and recommending more or fewer jobs through the group, or whether to fund them at all, it goes beyond accountability and into disbursing funds which is not the role of an MP. At all.

And what really burns me is that nobody sees this. We have become so civically illiterate that a practice that is a direct existential challenge to a thousand years of parliamentary history doesn’t merit a single shrug. No, instead, it’s become part of this expectation that MPs should be “bringing home the bacon” to their ridings. It’s why MPs shouldn’t be making funding announcements for the government – that’s the role of Cabinet ministers (and I will allow parliamentary secretaries under protest because it’s hard for cabinet to be everywhere), but that’s it. Having MPs make announcements “on behalf of” ministers is a betrayal of the role that MPs play with respect to ministers, which is to hold them to account, even if they’re in the same party. This is cabinet co-opting MPs, and in the case of these job grants, laundering their accountability so that nobody can actually be held to account for when funding goes to groups that are contrary to the values of the government of the day. But nobody cares – not even the journalist who wrote the story about the changes.

If only someone had written a book about this kind of thing…

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Roundup: Unifying the prohibitions across departments

The federal government has issued new guidelines for foreign intelligence likely obtained through torture, so that it now covers the Canadian Forces, the Canadian Security Establishment, and Global Affairs Canada. This means that they are prohibited from using such information, except if it’s going to save lives either from an imminent terrorist attack or protecting Canadian troops on an overseas mission. This appears to harmonize direction handed down earlier to the RCMP, CSIS, and CBSA, so that all national security agencies (which are now under the same parliamentary oversight regime and will soon be under an independent arm’s length national security oversight regime) will have the same rules and restrictions. For some, it’s reassuring that the government is taking the issue seriously, but for others, the caveat isn’t good enough, and they need to issue a full prohibition, no caveats, no exceptions, full stop. Stephanie Carvin has more reaction to the announcement here:

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Roundup: Space to socialize

Amidst the growing buzz of MPs’ bad behaviour, whether it’s ejections from the House of Commons during QP, or the allegations of inappropriate comments at events as with James Bezan and Sherry Romanado, Kady O’Malley says that the presence of cameras hasn’t been a guarantor of good behaviour. And that’s fair enough. So what does she propose? Not to do away with the cameras, particularly in the Chamber itself, but rather creating the conditions by which MPs can spend more time together outside of the strictly partisan work situations.

More to the point, O’Malley suggests that MPs start sharing meal breaks, whether it’s in the cafeteria, or has been proposed earlier this session with a common space behind the Commons chamber where they can eat together rather than having the usual food services delivered to their respective lobbies on either side of the Chamber. It’s not a novel idea, given the fact that it was shared meals used to be a feature of how our parliament operated. Evening sittings happened three nights a week, and at the appointed hour, they would suspend debate, head upstairs to the Parliamentary Restaurant for a couple of hours and there was cross-pollination of socializing between the different parties. And lo and behold, when evening sittings were abolished in the name of being “family friendly,” collegiality between MPs took a hit.

The problem with simply creating a space behind the Commons for MPs to have that meal together is that it’s pretty much restricted to those who are stuck with House Duty, so the numbers at any given time would be pretty small, and I’m not sure that it’s enough to get a big the requisite sea change happening. Maybe the answer is to bring back evening sittings – it’s not like there’s a lack of legislation that could use the added time – but even there, part of what kept MPs at the parliamentary restaurant is that there was a dearth of other options in the area, which isn’t the case any longer. So while I don’t dispute that more opportunities for MPs to socialize is a good and necessary thing, I’m not sure that the conditions to make this a broader issue are really there any longer.

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Roundup: Embattled ministers sticking it out

With three cabinet ministers currently “embattled” (to various degrees), Aaron Wherry wondered about the drop-off in actual ministerial resignations, and found the comparison to the days of Brian Mulroney, who was far quicker to accept resignations than is customary these days. Mulroney came to regret this, mind you, but it can’t be denied that the demands for resignations have never left us, and in fact are pretty rote performance by this point. That the Conservatives made their demand for Bill Morneau’s resignation without any real damning evidence as to why it’s necessary has made it seem as unserious as it actually is, making it harder for them in the future to make a legitimate demand.

But with that having been said, I’m going to say that there’s something that Wherry has left out in his analysis, which is the way in which Cabinets are constructed is a different calculation now than it was in Mulroney’s day, and that matters. Back then, the dominant concern was federal construction, so while you had to ensure that you had enough ministers from certain regions, and some token diversity in terms of religious or cultural background, with a woman or two in the mix, it was easier to swap out white men for one another when it came to accepting resignations and replacing them. That’s not really the case right now. Trudeau’s pledge for a gender-balanced cabinet that is also regionally representative as well as diverse in terms of race and ethnicity means that there are far fewer options for replacing ministers when it comes time to either accepting resignations, or swapping them out for fresh blood. What that ends up doing is creating an incentive for a prime minister to stick by an “embattled” minister (though I’m not sure just how serious any of the allegations against any of the current ministers really is – the attacks against Morneau are largely baseless, while Lebouthillier has done her due diligence with regard to the AG’s report and has technically been correct in what she’s said regarding the disability tax credit; Hehr, meanwhile, has been chagrinned but I’m not sure there is a cardinal sin here in the grand scheme of things). Sure, there will be a few tough days in the media, but eventually, when there turns out to be nothing to what is being said, the storm passes. It passed with Harjit Sajjan and Maryam Monsef (who was given a promotion for sticking with the flaming bag of dog excrement that was the electoral reform file), and I’m pretty sure it’ll pass for the current three. Until Parliament itself is more diverse than it is now, the demands for a representative Cabinet means that there are fewer options available for a Prime Minister to accept a resignation. What it does mean, however, is that they need to get a bit better around communications and managing the issues that do come up, but also seems to be a recurring theme with this government.

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Roundup: Abandoning a fiscal anchor

In yesterday’s National Post, economist Stephen Gordon cast a critical eye on the fall economic update and the government’s excuse for running deficits, and the decision to abandon the fiscal anchor of balanced budgets in favour of a declining debt-to-GDP ratio. And rather than worrying about the non-existent debt-bomb, Gordon is mostly looking for answers why the policy shifted post-election. Fair enough. (He also does the math on how much more a government can spend by shifting the fiscal anchors like the government did here).

Enter fellow economist Kevin Milligan, who digs through and finds an answer. Enjoy.

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Roundup: The looming retirement of the Chief Justice

Chief Justice Beverley McLachlin announced yesterday that she would be retiring on December 15th, a few months in advance of her mandatory retirement date, in order to give the government enough time to find a suitable replacement. Why that date is significant is because it will be at the end of the Court’s fall sitting, letting her use the next six months that she is able to clear off the files from her desk and work on any outstanding judgments rather than depart mid-sitting and the organizational chaos that would follow.

The next steps are now an important consideration. The government will not only have to name a new Chief Justice, but a new judge from Western Canada (and likely BC given that’s where McLachlin was appointed from). And in order to keep gender balance on the court it will likely have to be a woman, and in accordance with this government’s push for diversity, it will likely be a person of colour, if not someone Indigenous (and let us not forget that said person must also be fluently bilingual, which is another self-imposed criteria that this government has made for itself). This may be easier to find in BC than it was in Atlantic Canada, mind you. And for Chief Justice? My money is on Justice Richard Wagner, whom I know many close the court have already tapped as being the successor if they had their druthers.

Of course, we’ll see if this government can get an appointment process back up and running within the six months. Experience has shown us that they seem to have difficulty with that, especially as there are still some sixty or so federally appointed judicial vacancies still remaining around the country, and a few of the Judicial Advisory Committees charged with finding candidates for said vacancies still not fully appointed either, which is a problem. Of course, they may be able to largely reconstitute the committee that oversaw the nomination of Justice Rowe, with Kim Campbell again in charge of the process, but I guess we’ll see how long that takes.

For more reaction, here’s Emmett Macfarlane on As It Happens and in the Ottawa Citizen, and Carissima Mathen on Power Play.

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Roundup: Paris Accord disappointment

The inevitable happened yesterday, where Donald Trump announced that he would pull the United States out of the Paris Accords – a process that could take up to four years – with the intention of immediately trying to renegotiate re-entry on more favourable terms. Why that makes no sense is because the Accords were flexible enough that each country was supposed to set their own targets, so there was no actual need for him to pull out other than to look tough, but what can you do with a chaos generator like that? Justin Trudeau was one of the leaders who immediately contacted Trump to express his disappointment, while Catherine McKenna said that Canada was moving ahead regardless, and would be hosting a ministerial summit with China and the EU in September regarding next steps with emissions reductions.

We are no doubt going to hear some grousing from the Conservatives over the next few days about this, with renewed caterwauling about scrapping the federal carbon tax (which is actual a national carbon price, and any tax would only apply to a province that doesn’t have a price of their own that meets the target – namely Saskatchewan at this point), and concern trolling about how this makes us uncompetitive. The problem, of course, is that industry is all moving in the direction of favouring carbon pricing because it allows for stability and predictability, and it’s also a market-based mechanism to drive innovation – something that sector-by-sector regulations don’t do. And indeed, the business community in the States, including some major oil companies, are reacting negatively to Trump’s decision, and the heads of several companies are resigning from Trump’s business council in protest. And it shouldn’t be understated that the potential for a clean tech is real with price incentives that carbon pricing provides.

Meanwhile, French president Emmanuel Macron issued a statement in English, aimed to the Americans, inviting those scientists to France to continue their climate work there instead, which is a bold move.

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