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: Concern trolling the NAFTA talks

Amidst all of the other drama around the Trumpocalypse, talk of NAFTA renegotiations have been ramping up again with the next round of talks in Montreal taking place in a couple of weeks. So far, people seem to be backing away from the ramparts and are sounding out extensions to the talks rather than trying to complete them as soon as possible, given the political deadlines of the Mexican federal election this summer and American mid-term elections this fall. Chrystia Freeland herself went out to say that this was good, that artificial deadlines weren’t necessary, and so far, so good. Cabinet ministers were also back on the charm circuit down in the States, and Conservative leader Andrew Scheer is leading his own delegation next week – but not before he took to the Mississauga Board of Trade to blast the government’s handling of the whole thing. According to Scheer’s obvious concern trolling, Trudeau “doesn’t seem to have a plan” (which you would have to be completely blind and inattentive to believe, considering that Trudeau’s plan has been pretty bloody obvious), and we’ve seen plenty of examples in Question Period where the Conservatives insist that the government is fumbling the deal with all of the “unserious” talk of gender and Indigenous chapters. And while I get that Scheer and the Conservatives are supposed to hold government to account, this falls into the same category as their other efforts that rely on disingenuous statements and mendacious framing of issues in order to try and score cheap points. Scheer has also been disingenuous about the state of the lapsed softwood lumber agreement in the waning Obama years, and has tried to frame what happened with the TPP signing as more fumbling from Trudeau when in fact things were communicated to the Japanese, and the Australian media torqued the story to suit their own domestic purposes. And if you’re wondering what the NDP is up to, well, they’re still demanding that everything be out in the open, because that’s totally how you want to negotiate these things.

As for the government’s charm offensive, it seems to be meeting more with apathy with the Americans than anything, as NAFTA talks are apparently not on their radar while they focus on those tax cuts that Trump promised. That may be why the government decided to play hardball with the WTO challenge against the rash of protectionist measures in the States, such as softwood duties or the Bombardier C-Series tariffs, and Freeland has been musing recently about “creative thinking” to drive the talks forward, so we’ll see what next steps are. But you can’t say that the government doesn’t have a plan. This issue has consumed them for the past year, and they very obviously are doing something about it, which makes Scheer’s assertions all the more ridiculous.

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Roundup: Mary Dawson delivers a spanking

Outgoing Conflict of Interest and Ethics Commissioner Mary Dawson released her report on the Prime Minister’s vacation to the Bahamas and the Aga Khan’s private island there last Christmas, and she determined that he had indeed broken four sections of the code. Reaction was swift – Trudeau quickly called a press conference to apologise and try and to take full responsibility, but stumbled in some of his responses. And soon after, both Andrew Scheer and Jagmeet Singh called their own press conferences to condemn Trudeau and to rail about how out of touch he is, and so on.

First things first: The Canadian Press has five items of note from the report, and John Geddes offers three items of his own. Hay is being made – particularly from certain opposition politicians – that Trudeau is the first PM to have been found guilty of breaking these conflict of interest laws, but it’s worth bearing in mind that this current conflict of interest regime is only a decade old, and it’s not a lot of time for which there to be much to compare to. Aaron Wherry parses the report here, while Paul Wells offers his own bigger-picture look as to why this all matters.

This all having been said, I’m trying to digest the substance of the report, and some of it does rankle with me a bit, in particular the way in which Dawson parses how a friendship with someone like the Aga Khan should unfold, given the position that he holds. I also wonder if better context should have been applied to just what his Foundation’s dealings with the Canadian government are, because actual private interests aren’t being advanced here – nobody profits from this. A lot of what the Foundation does with Canadian aid money is do things like provide school books to Syrian refugees in camps in the Middle East, where they have the networks to deliver them. This isn’t nearly the same thing as accepting gifts from businessmen whose private interests and personal profits may rely on decisions made by the Canadian government, and I wonder if it’s helpful to treat those as being on an equal playing field. (Then again, maybe it is. I’m not an expert in this).

A couple of other thoughts – It is fair to ask why Trudeau and his team, who can be so focused on optics at times, were so blind to this one. But given that they’ve scored more than a few own-goals this last year with bad communications plans, that’s becoming clear that they’re not the masters at this that they sometimes appear to be. As for the lack of penalties in the Conflict of Interest legislation, we have to bear in mind that these are political actors that we are discussing, and merely naming and shaming them does have political consequences. If we got into games of demanding financial penalties or that public office holders be jailed for breaches, we change the political calculus of this ethics regime, and it would become an even bigger gong show than it is now, not to mention that it would make cooperation even less likely if they think there’s a jail sentence attached. And finally, there is a lot of smug sanctimony going around, but some caution had best be exercised, particularly by members of the opposition, when it comes to how the Aga Khan is portrayed in this. The Ismaili community already has their backs up over how he has been characterised to date, and those opposition parties could find themselves alienating an important voting bloc if they’re not careful.

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Roundup: Cyberwarfare oversight concerns

The University of Toronto’s CitizenLab issued a report on Bill C-59, and the powers that it gives the Communications Security Establishment to engage in offensive cyberwarfare operations, rather than just sticking to being on the defensive. According to their report, these kinds of activities wouldn’t require any kind of judicial oversight – just the sign-off from the ministers of foreign affairs and national defence – and will have little other oversight other than the National Security and Intelligence Committee of Parliamentarians. And as Stephanie Carvin explains below, that’s actually not a bad thing, because offensive capabilities are not the same as intelligence gathering – one of CSE’s other activities.

And this is pretty much the point – a Crown prerogative doesn’t require the same kinds of oversight, and does not necessarily bind the activities to being Charter compliant because it’s not directed at Canadians, thus is not concerned with their particular rights and freedoms. And as Carvin points out, these kinds of operations have their own particular oversight mechanisms, which are simply different than the once that CitizenLab identifies. It’s perfectly fine to wonder if CSE is really the agency to be doing this kind of work, but that also means asking who else would be doing it, and if the answer is to build new capabilities within the Canadian Forces, is that the best use of scarce resources? Perhaps, perhaps not. It’s certainly a topic worthy of debate, but “no judicial oversight” is not right argument to be making in this case.

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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: Site C reluctance and costs

The BC government announced yesterday that they were going to reluctantly go ahead with the Site C dam project, which disappointed a great many people, not the least of which was the provincial NDP government’s Green Party allies (but not, apparently, to the point of withdrawing confidence, because they still have to get their self-interested electoral reform referendum up and running, and they certainly don’t want to jeopardise that). Oh, and true to form, it’ll cost even more than originally anticipated. Because of course it will. And while I can’t speak to some of the issues with some of the First Nations in the area, some of those cost issues were explored, particularly in this analysis, I also found the arguments of Blair King, who deals with contaminated sites for a living, to be particularly instructive on the issue, both in terms of the costs of remediating the work already done on the site, as well as the fact that other alternatives are simply not going to replace what the dam can do, particularly in the issues of night use for electric vehicles and the seasonal disparity of solar generation with usage – and certainly not for the same costs.

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QP: Concern trolling about the Commissioner

After a week away, Justin Trudeau was back in the Commons after a week away, and Andrew Scheer was also back, as the final sitting days of 2017 ticked down. Scheer led off, mini-lectern on desk, and he raised the current investigations by the Ethics Commissioner, and concern trolled that they wouldn’t be completed before her term was up. Trudeau noted that he had recused himself from any discussions around the Commissioner, but he was confident that the House Leader would do a good job. Scheer, breathily racing through his script, worried that MPs would not be consulted or have a chance to vet the new appointee, but Trudeau reiterated that he had confidence in the House Leader. Scheer moved onto the backlog of veterans awaiting disability benefits, to which Trudeau noted that while the previous government closed veterans officers, they were reopened under the current government along with new investments. Scheer insisted that this was solely the problem of the current government, to which Trudeau said that veterans had abandoned hope of getting help under the previous government while they were coming forward now that the current government was reaching out and reinvesting. Scheer tried to then wedge this into a “mean-spiritedness” onto the disability tax credits, and Trudeau assured him that they were looking at the issue carefully to ensure that Canadians were getting the benefits they deserved. Guy Caron was up next for the NDP, and he too returned to the issue of the backlog of veterans benefits, and Trudeau reiterated that these were applications by those who had previously given up hope. Irene Mathyssen and demanded to know if the new veterans disability plan would be released before the House rises, and Trudeau offered assurances that they were taking the issue seriously. Caron turned to demand a Netflix tax and defend the press, and Trudeau insisted that they would not raise taxes on Canadians. Pierre Nantel was up next to demand the same Netflix tax in French, and Trudeau assured him that no Quebec demanded that he raise their taxes.

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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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QP: Lebouthillier has had enough of your accusations

With Justin Trudeau on his way back from China, and Andrew Scheer again absent, it was left up to Lisa Raitt to once again carry the day. Raitt led off, concerned about tax changes affecting small businesses, and demanded specifics. Dominic LeBlanc reminded her that they were cutting small business taxes, and details on income sprinkling would come before January 1st. Raitt then mocked the government for spending on advertising, to which Scott Brison got up to remind her that when she was in government, they spent a lot more on advertising, while the current government changed the rules to ensure that it wouldn’t be partisan. Raitt raised the concerns of small business owners in New Brunswick communities she visited, and LeBlanc, himself from the province, noted that the member of that riding had already made those concerns known and the government was listening. Alain Rayes was up next to offer the concern trolling on small business taxes in French, and LeBlanc assured him that they listened to concerns before they are implemented. Rayes tried again, and LeBlanc assured him the details would be known shortly. Guy Caron was up next for the NDP, and railed about the American decision to declare Jerusalem the capital of Israel, and wanted louder condemnation from the Canadian government. Mélanie Joly assured him that they were allies of Israel and that the status of Jerusalem could only be determined in larger negotiations. Hélène Laverdière tried again in English, and got the same answer from Joly in English. Caron was back up, and referred to the Auditor General’s report on the CRA and wondered when they would be accountable to Canadians. Diane Lebouthillier listed off the measures that were being undertaken to correct the situation, and Caron tried again in English, and Lebouthillier repeated her response.

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QP: Return of the tax changes

While the prime minister remained in China, Andrew Scheer was finally back in the Commons for QP for the first time this week. After a moment of silence for the anniversary of the École Polytechnique massacre, Scheer led off, mini-lectern on desk, and he read a statement about violence against women. In response, Maryam Monsef rose to give her own statement about the importance of the day and the remembrance of the victims. Scheer then turned to the “attack on small business” by new rules not being fully outlined until the budget. Dominic LeBlanc, who this morning revealed that he was diagnosed with chronic lymphocytic leukaemia, reminded him that small business taxes was being reduced and the new rules around private corporations were not about small businesses. Scheer trotted out the torqued 73 percent tax rate line (only applicable to those private corporations making over 100,000 under certain conditions in Ontario), and LeBlanc called him out for using a phoney example. Alain Rayes took over in French, offering the same concerns, and LeBlanc assured him that they listened to small business owners and they were acting on their concerns. Rayes tried again, but LeBlanc launched into a praise for small business tax cuts. Guy Caron was up next for the NDP, worrying that not taxing internet giants was hurting Canadian content creators — specifically community newspapers. Mélanie Joly said that they would work with stakeholders to strengthen local journalism. Caron tried again in English, and Joly listed investments made today and promised to help with transition to digital. Tracey Ramsey was up next, demanding transparency on the list of priorities with trade with China. Marie-Claude Bibeau, curiously, rose to read a statement on the importance of trade, but done under Canadian values. Ruth Ellen Brosseau asked the very same question again in French, and got much the same answer.

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