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: Harper unhappy with NAFTA talks

Stephen Harper has apparently written an angry memo to his clients about the governmetn’s handling of the NAFTA negotiations, accusing them of bungling them by not evaluating American demands seriously (err, you have seen how many of their demands are literal impossibilities, right?) and of ignoring a softwood deal (which officials say was never on the table), and of aligning themselves too much with Mexico when they were the targets of America’s ire. Canadian officials are none too pleased, and consider it a gift to the Trump administration.

Alex Panetta, the Canadian Press reporter who broke the story, has more commentary below.

Paul Wells offered a few thoughts of his own on the news.

Incidentally, the PM has also vocally disagreed with former Conservative minister James Moore’s assertion that trade talks with China are hurting our talks with the Americans.

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Roundup: Is there meaning to staff changes?

The Hill Times had an interesting piece out yesterday about staffing changes into and out of the PMO, and what it says about the culture of central control in the Trudeau-led government. While some of the commentary from former Conservative staffers about the marked similarities could be seen as trouble-making (and indeed, I’m not sure that we are quite at the level of central control that was exerted under the Harper years), I do think there is a kernel of truth in there which may simply be a reflection of politics in the 21st century, which is heavy on message discipline in order to deal with the pressures of a media apparatus that was not as strident as it was during the days of cabinet government of yore. Add to that, the increasingly horizontal power structures mean that the mere act of governing is not the same as it was during those days, so the ways in which the practice of government has evolved should be a consideration.

Nevertheless, the movement of this staff is quite likely indicative of more than just the usual cross-pollination that takes place over the course of a government, and the concerns about rookie ministers needing more hand-holding are probably not unfounded, and there have definitely been some stories of certain ministers having chronic staffing problems that can’t be dismissed out of hand. Nor can former staffers’ concerns about movement being based on connections over ability be shrugged off either, though one has to wonder if it was ever always thus, and it just manifests itself in slightly different ways today than in the past. In all, while I disbelieve the notion that the Trudeau PMO is just the Harper PMO redux, I will agree that there are probably a few more similarities than either would like to admit to openly.

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Roundup: Economic update choices

The fall economic update was released yesterday, and while the rapid pace of economic growth has meant more revenues and a smaller deficit, it also means that the government isn’t going to put too much more effort into getting back to balance anytime soon, keeping the focus on reducing the debt-to-GDP ratio instead (which is going down faster). Instead, finance minister Bill Morneau insisted that they would be “doubling down” on investing in the middle class, mostly by indexing the Canada Child Benefit to inflation earlier than planned, as well as enhancing the Working Income Tax Benefit (and I will note that this part of his speech seemed to be one where Morneau acknowledged that singletons existed and needed a hand up too). There was some additional programme spending in there as well (for more, the National Post outlines eight things in the update).

https://twitter.com/LindsayTedds/status/922923497008984065

While the economy is growing at an enviable pace, it could put the government and the Bank of Canada in a bind as the need to start withdrawing stimulus measures comes to the forefront, and deciding whether fiscal or monetary policy should make the first move. There is also a marked shift between last year’s update and this year’s in that the focus is moving away from longer-term goals to short-term ones (and that could be political reality setting in). Critics accuse the government of using the update to try and change the channel on the recent headlines around Bill Morneau’s assets and disclosures, while Andrew Coyne gives his signature scathing look at the choices of the deficits, and around the rapid growth in government spending.

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Roundup: The fount of Canadian honours

A particular thread that I forgot to talk about last week was about the new GG, and one of the important things that the office does, which is to be the conduit by which the country’s honours system works. It’s a pretty important function of the office which has been encroached upon my MPs and in particular the Prime Minister in recent years, and yes, that is a problem.

The Queen is the fount of honours in Canada, but politicians have been trying to get in on the game. Stephen Harper created a “teaching award,” and Trudeau has been talking about creating some kind of medal on his own as well, while there have been partisan spats about the Thérèse Casgraine award, or the John Diefenbaker award, and whichever party in power “forgetting” to award it, and on it goes. But part of leaving those kinds of decisions up to Rideau Hall is that it keeps the awards from taking on a partisan taint. With the Prime Minister’s Awards for Teaching Excellence, there was a lot of difficulty getting nominees under Harper because many people didn’t want to be associated with him, which is a fair point – the award should be politics-neutral, but associating it with the head of government as opposed to the Queen means not only that there’s a whiff of partisanship, but that the PM would use the awards as a bit of reflected glory. That’s generally something we try to avoid in our system, which is also why we ensure that it’s not the prime minister’s face on postage stamps or first in line in our embassies, but rather the Queen. It’s why the civil service swears their oaths to the Crown and not the government of the day as well – because we keep them above the partisanship of the day, and it keeps them from developing cults of personality (as much as is possible, but the age of celebrity politics is certainly challenging this notion). Suffice to say, we should be aware that the duties of honours rests with the Crown and with the GG for a reason, and we should frown on more attempts by politicians to horn in on them.

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Roundup: A Northern SCC justice?

The government announced yesterday that they have begun the process for searching for the next Supreme Court of Canada justice, which it should be noted is almost record-breaking in how fast they got this particular process started, as normally it takes them six months to a year to get a process even started, by which time the vacancy has happened and terms need to be extended (which isn’t possible in this case). And while this is notable in and of itself, there was something else notable – that they are explicitly looking for a justice from either the West or the North.

Why this is important is because it seems to demonstrate that they learned their lesson from the previous SCC appointment process, when they toyed with finding a justice who was not from Atlantic Canada despite it being a traditionally Atlantic Canadian seat that was vacant, and there was some pretty big uproar which they tried to pooh-pooh with talking points about how some of those federalist notions were perhaps a bit archaic and they were trying to find a bilingual justice (which was difficult for that region, even more so if they were trying to find someone Indigenous or a person of colour). That will be less of a problem in the West, but the fact that they also mentioned the North is a bit curious.

As it stands, some territorial cases, particularly at the appeal level, are heard in courts in provinces like BC or sometimes Ontario, because there simply aren’t enough judges and infrastructure in place to do the job up North. And while it’s not necessary that one be a judge to get a Supreme Court nomination (they must be a member of the bar, but can come from private practice or even a law school), it is a bit peculiar that they have expanded their search in such a way. It is the first time that such a consideration has been made, which is no doubt part of this government’s constant attempts to pat themselves on the back, and their language about the “custom of regional representation” still sounds a bit like they’re making it out to be less of an important deal than it is, which is a problem because the principles of federalism are a pretty big deal given how this country works. I would say that it also raises the possibility of raising hackles in the West because it could open them up to accusations that they’re depriving the West of representation on the Court (the West typically has two seats, one of which is currently held by Justice Brown from Alberta, so no, Alberta has no room to raise a fuss), but one could imagine that BC would very well make an issue of it if they felt like it. Granted, if they do find someone from the North, it could provide some greater perspective on the Court – or it could simply be yet another reason for back-patting. We’ll find out in a few months’ time when the decision is made. (And for the record, the plan is to name the new Chief Justice after the vacancy is filled).

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Roundup: A lack of scrutiny

While again noting that I don’t often write about provincial matters, sometimes they can be a microcosm or a vanguard of broader themes happening in different legislatures across the country, including the federal parliament, and this item out of Queen’s Park raises alarm bells because it is a telling sign. The province’s Financial Accountability Office – the provincial equivalent of the Parliamentary Budget Officer – tabled his annual report that essentially states that there’s not enough scrutiny happening within the legislature. And yes, that’s a very big problem.

While I am a bit surprised that his office is being underutilized, the fact that backbenchers aren’t doing the work of scrutinizing the actions of Cabinet – particularly on budget matters – is not unique to the province. Here in Ottawa, we see too many instances of MPs passing the Estimates with the barest of glances, and when ministers appear before committee to discuss them, they are generally bombarded with questions about issues of the day rather than what’s in the Estimates. That most of the scrutiny of the Estimates now happens in the Senate is Ottawa’s saving grace – something that provinces like Ontario can’t claim.

Part of the problem is that our civic literacy has so degraded that most MPs or their provincial counterparts (MPPs, MLAs, MNAs – style them how you will) don’t understand that their actual constitutionally mandated job is to hold the government to account by means of controlling the public purse. That, by definition, means scrutinizing budgets, the Estimates, and the Public Accounts. That MPs and their provincial counterparts don’t want to do that job – or at the very least are ignorant that it’s their responsibility – has meant the creation of more Officers of Parliament like the PBO, and the FAO in Ontario, to do that homework for them, and that’s a huge problem for the health of our democracy. But so long as MPs and their counterparts opt to stick their heads in the sand and play American lawmaker, spending all of their time and energy on private members’ business (when they’re not cheerleading for their particular leader), then our system suffers for it as governments aren’t held to account properly.

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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: 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: Changing the face of the bench

The Globe and Mail has an interesting read about the way in which the current government is making a concerted effort to appoint more women to the bench as it (slowly) makes its judicial appointments. While the numbers of women appointed are disproportionate to the numbers that have applied, that seems less concerning to me because it has been shown that fewer women will apply to positions like these because they tend to downplay their own qualifications (just as with trying to get more women to run for public office). I also think that the justice minister has a point when she says that part of the reason for so few appointments being made from visible minorities is in part because there are too few applying, and too few in the justice system as a whole. I also look to something that Senator Jaffer said to me in a piece I wrote for the Law Times about the judicial appointments issue, which is that for many of the appointment committees, they don’t tend to look beyond their own boxes when they make recommendations, so we see fewer women and visible minorities being put forward, and that proactive approaches have been shown to be needed in the past. This government seems to be willing to go some of the distance in bridging that gap, but as always, more work needs to be done, and yes, it’s taking far too long in most of the cases.

What does bother me is the notion that by appointing women and minorities is that this is simply about quotas, and it’s the exact same things we’ve been hearing in the past couple of weeks with regards to people making their evaluations of the federal cabinet, and the quiet clucking of tongues when they go “rookie, diversity hire, not very competent.” Never mind that in many cases, much of the judging is harsh, unfair to the person or the situation they were put into, or deliberately misconstrued to present a worse picture than what actually happened (such as with Maryam Monsef). Never mind the fact that if none of these people are given a chance as rookies, they won’t actually get experience. And yes, some of them are performing poorly (and even more curiously, the ones who I think actually are having problems are the ones who are never the ones being written about). But hearing the constant quota refrain is getting tiresome to read about.

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