Roundup: Duffy’s privilege problems

At long last, the Senate has responded to Senator Mike Duffy’s lawsuit against it, and is asking the Ontario courts to remove it from the suit because of parliamentary privilege. This was to be expected, and I’m surprised it took this long, but here we are. Duffy’s lawyer says that he’ll fight it, of course, but he’s going to have an uphill battle because this is very much a live issue.

For a refresher as to why this matters as an issue of privilege is because it’s about the ability of the Senate to discipline one of its own members. This is especially important because the Senate is a self-governing body of Parliament, and because it’s appointed with institutional independence and security of tenure in order to ensure that there is that independence. In other words, the Senate has to be able to police its own because there’s no one else who can while still giving it the ability to be self-governing (as we explored in great detail over the Auditor General’s desire to have an external audit body oversee the chamber’s activities). And indeed, UOttawa law professor Carissima Mathen agrees that it would be odd for the Senate not to have the power to suspend its own members, and raises questions about whether it’s appropriate for the judiciary to interfere in this kind of parliamentary activity. (It’s really not).

The even bigger complicating factor in this, of course, is that NDP court case trying to fight the House of Commons’ Board of Internal Economy decision around their satellite offices. The Federal Court ruled there that it’s not a case of privilege (which is being appealed), and Duffy’s former lawyer, Donald Bayne, said that this is a precedent in their favour while on Power & Politics yesterday. And he might have a point, except that the Commons’ internal economy board is a separate legislative creature, whereas the Senate’s internal economy committee is a committee of parliament and not a legislative creation. This is a Very Big Difference (and one which does complicate the NDP case, to the point that MPs may have actually waived their own ability to claim privilege when they structured their Board in such a fashion – something that we should probably retroactively smack a few MPs upside the head for). I don’t expect that Duffy will win this particular round, meaning that his lawsuit will be restricted to the RCMP for negligent investigation, but even that’s a tough hill to climb in and of itself. He may not have much luck with this lawsuit in the long run.

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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: Oprah and the rot of populist politics

As a rule, I don’t really comment on American politics, but this issue of Americans clamouring for Oprah Winfrey to run for president in 2020 has been getting a lot of press lately. Colby Cosh runs through why it was probably a trial balloon that fortunately deflated, while Rachel Giese worries that the dismissal of the possibility amounts to more racism and sexism rather than dealing with some of Oprah’s ability to connect with people. And she does have that – I used to darkly muse that Oprah could almost certainly run for president and win because back when I worked in book stores during my undergrad years, and every time Oprah mentioned a book, we would be inundated with calls and demands for said tome. Early on we weren’t given advance notice, and it was a gong show, and after she alerted publishers beforehand and we were sent ample shipments of said volumes in time for the show to air, it was more manageable chaos, but it never failed to surprise me with how much she had an ability to influence the viewing public’s shopping choices, and made me wonder how far that power could be extended.

But the fascination with celebrities running for office is not new or novel, and is part of a sign of the deeper rot of populism within our political discourse. The distrust of the political class and career politicians has long been sown by populists, and Canada is no exception. Conservative MP Michelle Rempel penned her own op-ed to talk about this urge for celebrities to be political saviours, and outlined her own particular list of what it takes to make good political leaders (including a few subtle digs at Justin Trudeau in there, naturally), but while she talks about the disconnect that people have between their ability to examine government as its role in our lives has expanded exponentially over the past seventy years, she misses one key point – that Canadians aren’t taught how to engage with the system.

Because we aren’t taught anything other than the fact that you mark a ballot every three or four years, we don’t know how to nominate candidates that speak to our values or that better reflect the diversity in our communities. We don’t understand how the role of joining parties creates a relationship with the caucus because the party creates an interlocutor role between those who are serving in Parliament or in government and those on the ground. We aren’t taught how the act of joining parties entitles us to take part in policy discussions that shape where we want the party and the country to go. All of those are huge ways of engaging in our system of government, but we’re largely not taught them in school, which fuels the disconnect that people feel, which drives people to populists, whoever they may be. Because celebrities are comforting, familiar figures, people will flock to their siren calls, oblivious to the danger of smashing against the rocks they perch upon. It’s why we need proper civics education, so that we can combat the ignorance that fuels the willingness to entertain this celebrity nonsense.

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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: The abuse of “appearance”

Breaking! Ethics Commissioner wants to talk to Bill Morneau about that share sale! To which I immediately yawn and say, “Yeah, and?” Because we are beyond the point where any of these stories are actually advancing the story in a substantive manner, and we’re well past innuendo, and are now onto a full-on pile-on in the attempts to make something, anything, stick.

This attempt to try and create some issue around insider trading has been nothing short of ludicrous because none of the facts bear the slightest scrutiny, nor does any of their internal logic hold-up in the face of the other allegations. If he was really interested in “insider trading” (which isn’t actually possible from his position), why wouldn’t he wait to sell those shares until he tabled Bill C-27 and Morneau Shepell’s share prices spiked (temporarily)? But really, none of it makes adds up, and Andrew Coyne constructed a pretty good takedown of the allegation here. And Mary Dawson saying she’ll give Morneau a call sounds pretty pro forma here, given that this is in response to yet another of Nathan Cullen’s demands that she look into his dealings in the vague hope of her finding something, anything, that Cullen can use to any tactical advantage. But as both the opposition and some of the more mediocre journalists in the Gallery continue to carry on this campaign, it has the very definite potential to backfire – especially as Morneau is taking the gloves off now that his father is being dragged into the fray. As Terrence Corcoran points out, the Conservatives are the ones who are now acting unethically, not Morneau (and I’m sure you could add a couple of aforementioned journalists to this list, because their reporting on this has been anything but responsible).

But when this short thread from Howard Anglin was pointed out last night, it became clear to me where the real problem lies.

The problem here is not Bill Morneau – it’s Justin Trudeau, and the high-minded language he put into the mandate letters about being seen to be conduct the affairs without the appearance of conflict. What that turned out to be was an invitation for abuse. Because of the word “appearance,” all that anyone – opposition MP or mediocre journalist trying to make a big score – has to do is line up unrelated or conflated facts in a completely disingenuous manner and say “See! It looks like a conflict! This goes against the mandate letter!” Never mind that none of the allegations, whether it’s the cash-for-access (which wasn’t really cash for access) caterwauling months ago, or this Morneau nonsense now, bear up under the slightest bit of scrutiny – they are simply counting on it being the appearance of a conflict, and crying foul. We’re no longer dealing with issues of substance, but rather, the manufacture of optics in deliberately dishonest ways, because Justin Trudeau gave them an open invitation to. This is the state of our democratic discourse at the end of 2017. We should be embarrassed.

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QP: All sound and fury

Caucus day, and all of the leaders were present, and just a few minutes before things got underway, Andrew Scheer went to the microphones in the Foyer to demand Bill Morneau’s resignation. So there’s that. Scheer led off, mini-lectern on desk, and he read some condemnation about Bill Morneau’s numeracy and economic prowess. Justin Trudeau offered a correction in return — lowered taxes, economic growth, more money for the vulnerable, and so on. Scheer switched to English to repeat the accusations, wondering why Morneau was still in cabinet, while Trudeau reminded him that the point of Prime Minister’s Questions was supposed to be about backbenchers asking the PM questions. Scheer the went into the disingenuous questions about the supposed ethical lapses, including the insinuation of insider trading, and Morneau got up to say that everything has been reported in the press, and if the opposition wants to make any clear accusations, they should do so in the House, and in the Foyer. Scheer tried twice more, and Morneau reiterated his counter demand. Guy Caron was up next, repeating the same insinuations and wondering why the PM wasn’t demanding a clear answer. Trudeau said that Caron obviously wasn’t listening, as he just answered. Caron tried again in English, with an added dollop of sanctimony, and Trudeau assured him that everyone was answering questions and then praised their economic growth record. Alexandre Boulerice listed all of the supposed ethical lapses, only louder and angrier, and Trudeau invited them to make their clear allegations outside of the Chamber. Nathan Cullen said that they had repeated the questions outside, and repeated the allegations, and Trudeau mocked the response with some added jabs at how badly they lost in the last election.

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Roundup: Mid-term check-in

Over in Maclean’s, John Geddes put together a deep dive into the current government’s midterm woes, and it’s well worth the read – and it’s a pretty long read too. But once you’re done (seriously, this post isn’t going anywhere), I would want to push back on some of the things that he highlights.

For starters, I think that there is something to be said for a government that is willing to walk back on bad promises, and they made a few. Most notably is electoral reform, and the fact that they could actually take the step of smothering it the cradle is actually something that they should be congratulated for. We dodged a bullet with that one, and I wish that my fellow journalists would get that through their heads. Likewise, Bardish Chagger taking back her plans to “modernise” the way that the House of Commons operates is similarly another dodged bullet – most of her plans were terrible and would make things worse, not better. Casting them as failures does a disservice to the fact that they backed down from bad promises. When it comes to Bill Morneau and his troubles, I think it also bears mentioning that the vast majority of the attacks against his tax proposals (and his own personal ethics situation) are largely unfounded, based on disingenuous framing or outright lies designed to try and wound him. The attacks have largely not been about the policies themselves (even though there were actual problems that should have been asked about more), and I think that bears some mention.

I also think that Geddes doesn’t pay enough attention to some of the backroom process changes that the government has been spearheading, particularly on the Indigenous files – many of the problems mentioned need to have capacity issues addressed before funding is increased because we have seen numerous examples of places where money was shovelled out without that capacity-building being done, and it made situations worse. Is it frustrating that some of this is going slowly? Yes. But some of the ground-up work of reforming how the whole system works, and ensuring that once more money flows that it can be spent effectively is something that we should be talking more about, because process matters. We simply don’t like to talk about it because we labour under this belief that nobody reads process stories, so we ignore them, which is why I think some of the calls about “failures” are premature or outright wrong – things are changing that we can’t immediately see. That doesn’t mean that changes aren’t happening.

Finally, there is a list of major legislation coming down the pipe, and I think it bears reminding that the focus on consultation before making some of these changes is as much about inoculating the government against criticism that was levelled against their predecessors as it was about trying to get some of this complex legislation right. Do they get it right all the time? No. There is a demonstrated record of barrelling ahead on things with good intentions and not properly thinking through the consequences *cough*Access to Information*cough* and when it blows up in their faces, they’re not really sure how to respond because they think that their good intentions count for something. I’m not sure that simply focusing on the perceived inexperience of ministers helps when it comes to trying to meaningfully discuss these issues, but here we are.

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Roundup: One is less than five

As the whole Bill Morneau issue continues to run on outrage fumes, Conflict of Interest and Ethics Commissioner Mary Dawson’s office has been unhelpful in the least when it comes to trying to put this issue to bed. Two days ago her office said that “fewer than five” ministers held assets indirectly, and when this came up in QP on Wednesday, Trudeau confirmed what certain journalists had noted from the public disclosures – that it was Morneau and Jody Wilson-Raybould, who had since divested those shares. End of story. But no, then Dawson’s office responded to reports in the Globe and Mail that they were somehow “at odds” with the PM over just how many ministers were in such a situation (The Globe? Sensationalize something? Unbelievable!), and that one – Monreau – qualified as “less than five.” And that set the Twitter Machine ablaze, and turned QP in the gong show that it was of demanding to know which five ministers it was, despite the fact that this had already been answered on numerous occasions.

Yes, the Conflict of Interest and Ethics legislation is a mess that MPs refuse on a continual basis to do anything about when the issues are pointed out. Yes, Mary Dawson herself has largely been seen as unhelpful because she has had a tendency to read her mandate so narrowly that issues brought before her are deemed out of her purview. But as I’ve stated before, it’s rapidly turning into a job that nobody else wants, and given the very narrow criteria for a new one, it’s no wonder that the government is having a hard time filling the post, and we may be stuck with Dawson forever as a result.

 

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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: Not headed for a debt bomb

In light of the fall economic update, and the myriad of concerns about the level of the deficit and lack of a plan to get to balance in the near term, economist Kevin Milligan took us all to school over Twitter yesterday. The main message – that it’s not 1995, and we can’t keep talking about the deficit as though it were.

Later on, Milligan took exception to the notion that the government has backtracked on their tax reform promises and made the situation worse. Not so, he tells us.

So there you have it. Armchair punditry on deficits or tax changes (even from some economists) doesn’t necessarily stack up.

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