Roundup: Jury selection in the crosshairs

The fallout from the Gerald Stanley trial continued in Ottawa yesterday, where the family of Colten Boushie met with ministers Carolyn Bennett and Jane Philpott about their frustrations with the justice system, and in particular the focus seemed to be on jury selection, and in particular the use of peremptory challenges in order to screen out any potential juror that looks Indigenous. In Question Period, justice minister Jody Wilson-Raybould said that this was under consideration as part of their broader criminal justice review, but this is a project that seems to be travelling at a glacial pace (as so many things do in this government), and we have no idea when any report or formal recommendations by the government will actually be released in advance of legislative fixes. Boushie’s family are due to meet with Wilson-Raybould, Ralph Goodale and the prime minister at some point today, but I’m not holding my breath for any timelines on action on these issues. Oh, and in case you were wondering, the premier of Saskatchewan says that he’s open to discussions about more Indigenous representation on juries, but it doesn’t sound very concrete.

The attention that the Stanley verdict has given to the problems around Indigenous representation on juries have reminded us that this is a long-standing problem that has been on the radar for many years, such as with the report by former Supreme Court of Canada Justice Frank Iacobucci written for Ontario about the issue, complete with a number of recommendations. (That report spawned the Debwewin Committee, whose report is more than a year-and-a-half overdue by this point). The National Post last week had a look at the issues of stacked juries and biased media in cases like Stanley’s, and noted that there is a current study underway by an Ontario Superior Court justice looking into representation on juries with an eye to training judges in the future. Meanwhile, Senator Murray Sinclair says he will advocate for concrete changes such as limiting peremptory challenges, and provincial jury selection processes.

In terms of commentary, Colby Cosh tries to take a more dispassionate look at the jury system and wonders what we risk if we try to overturn it because we don’t like one decision out of hundreds. In a piece from 2016 that was reposted in light of recent events, Jonathan Kay wrote about his experience in a jury pool where, in a case involving a domestic homicide, the defence used their peremptory challenges to assemble an all-male, mostly visible minority jury.

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Roundup: Principle over circumstance

After a weekend of yet more wailing and gnashing of teeth about the Omar Khadr settlement, and despite detailed explanations from the ministers of justice and public safety, and Justin Trudeau reminding everyone that this is not about the individual circumstances of Khadr himself but rather the price of successive governments who have ignored the Charter of Rights and Freedoms, we’re still seeing a number of disingenuous talking points and facile legal analysis from players who know better. Here is some of the better commentary from the weekend.

A number of people over social media have insisted that treatment of Khadr, including the “frequent flier” sleep deprivation technique used to “soften him up” before CSIS agents arrived to question him, or the fact that he was strung up for hours to the point of urinating himself (and then used as a human mop to wipe it up) or being threatened with gang rape didn’t constitute torture.

There was some particularly petulant legal analysis from former Conservative cabinet ministers that got pushback.

And of course, the broader principle remains.

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Roundup: The difficulty with tracking spending

The Parliamentary Budget Officer’s latest analysis shows that it’s difficult to track budgetary spending commitments because they don’t often line up with the Supplementary Estimates. And yes, this is a problem. The solution is something that the government has already committed to, which is to reform the Estimates process. Right now, it is out of sync with the budget, where the Estimates need to be out before the beginning of the new fiscal year, but there is no set time for the budget to be released, meaning that the allocation of budget dollars happens before Parliament sees the budget. Later allocations to match the budget are supposed to then show up in the Supplementary Estimates, but as the PBO shows in his analysis, that’s hard to track. And even harder to track is whether those Estimates wound up being spent properly because the accounting systems used between the Estimates and the Public Accounts at the end of the fiscal year no longer match up, so tracking those dollars is also near-impossible. This has been an ongoing problem for decades, and the Liberals were elected on a promise to fix this problem. They have started to, but in recent months, the Treasury Board president, Scott Brison, says he has encountered resistance from the civil service when it comes to how they time things, and he’s trying to fix it. So that’s the hope, anyway.

What I hope comes from this exercise, however, is increased pressure on Brison and the government to carry on with reforming the Estimates cycle so that it better matches the budget cycle, and that the Estimates match the Public Accounts at the end of the year so that money can actually be tracked. What I hope doesn’t happen is for this to turn into calls to turn over yet more power and authority for scrutinizing the estimates to the PBO because that’s the whole raison d’etre of MPs, and they should be demanding that it be in a format that they can use and understand.

And while we’re on the subject of the PBO, here’s Kevin Milligan on the proposed amendments to the new PBO legislation, and why he still has concerns (as I do) about creating a massively powerful Officer of Parliament with no oversight or accountability.

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Roundup: Manning and the Populists

It’s the Manning Centre conference here in Ottawa, which is the “conservative Woodstock,” as they say, and is pretty much were all of the small-c conservatives come to network, only this year, in the midst of the Trumpocalypse happening south of the border, the flavour of this year’s conference has changed, with much more pandering to the fringe elements, catering to overblown fears of Islamic terrorism and the kinds of populist demagoguery that are suddenly in vogue. Oh, and all fourteen Conservative leadership candidates are also there, and hey, they had a little debate, which allowed them a bit more freedom to actually debate in small groups, but most of it was still their canned talking points, so take it for what it’s worth.

As for conference programming, here’s Kady O’Malley’s recap of the first half including Preston Manning’s speech, and her assessment that fears of a Trumpist takeover appear to be more overblown, as many of the demagogic panels have had less than spectacular attendance. John Geddes recaps the moments of the leadership debate that had the biggest sparks. Geddes also has a conversation with Manning about populism and how it’s shaping debates right now.

Andrew Coyne warns Conservatives at the Manning Conference about the siren song of populist demagoguery. Chris Selley looks at that demagoguery up close in the panel on the “Islamist extremist menace” at the Conference, calling it bonkers. John Ivison looks at the dynamic Kevin O’Leary is bringing to the Conference and the race, and the outsized role he is starting to play, building an “Anyone but O’Leary” vibe. Paul Wells notes the changes in the Conference’s tenor over the years as a result of the political culture of followership, eager to imitate the perceived leaders of their pack.

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Roundup: Estimates still a mess

The Main Estimates were released yesterday in advance of the budget, and if you don’t know why this is a bad thing that keeps happening, then you need a better understanding of why this is such a big deal in our parliamentary system. The Estimates are the way in which parliament authorizes the government to spend money, and they should be there for MPs to scrutinize before the money goes out the door. The problem is that we’ve divorced the estimates from the budget cycle, which means that they are now documents that reflect the status quo of the previous year rather than any new measures, and we have to wait for the Supplementary Estimates to be tabled later in the year. With the Main Estimates reduced to a formality, it’s reduced any study of the Supplementary Estimates to a kind of shrug and quick vote to pass, leaving the Senate to do any actual scrutiny, which is a problem. Why? It’s the job of MPs to hold government to account by controlling the public purse – hence the Estimates – and if they can’t do that, they can’t do their jobs. To make this worse, successive governments have allowed the accounting of the Estimates to become virtually unreadable, and when the Public Accounts are released a year later – which shows how that money was spent – they’re reported in a different accounting system, so you can’t really track if money was properly spent or not. It’s an abomination to how parliament is supposed to work (and yes, this is one of those things I talk about in The Unbroken Machine).

To their credit, the Liberals have vowed to fix this, and Scott Brison seems to be at least showing a bit of contrition and frustration that fixing this is taking so long. Part of this is bureaucratic, with departments not speeding up their processes. Part of this is political, where the Commons hasn’t amended the Standing Orders to allow the Estimates to be tabled by May 1st instead of March 1st so that it can follow the budget. But seriously – this is actually the most important job of MPs, and they have shown a complete disregard for this for years now. Their most fundamental duty is to control the public purse and the Estimates are the heart of that process, and they can’t be arsed to take them seriously. Watching them speed through Estimates votes without proper scrutiny happens more often than not, and we saw last year a case where they voted through a flawed version of the bill that the Senate caught and had to send back. It’s a disgrace, and while I applaud Brison for trying to make changes, the fact that the rest of the Commons can’t get on board is utterly shameful.

Meanwhile, Bloomberg has a good look at the country’s fiscal picture in the lead up to the budget, while Paul Wells gets more hints about the budget, which looks to be a lot more wait-and-see given the unfolding Trumpocalypse south of the border.

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Roundup: A hopeless court case

It’s one of the most predictable performative dances in Canadian politics, which is that when you lose at politics, you try to drag it to the courts to fight your battles for you. In this, case, a UBC professor (and local Fair Vote Canada) president wants to launch a Charter challenge around electoral reform. And in order to do that, he’s talking about getting pledges of around $360,000 in order to get through the legal process.

The problem? This is an issue that has already been litigated and lost. The Supreme Court of Canada refused to hear the appeal of the case that arose out of Quebec, which means it’s considered settled. The current electoral system is legal, it is constitutional, and while you get the odd prof here and there who tries to make an argument to the contrary, it’s settled law. And unlike some of the reversals we’ve seen the courts make over prostitution or assisted dying, there has been no great groundswell change in society that would justify the court in re-litigating the matter. In other words, he’s trying to raise money from people who are desperate to find a lifeline now that their political solution is gone that this is basically a scheme for lawyers to take their money.

This tendency to try and use the courts to overturn political decisions is a growing one, but it’s the same mentality as people who write to the Queen when they lose at politics. Have we had cases where governments have passed bad legislation and the courts have overturned it? Certainly. But political decisions are not bad legislation, and it’s not up to the courts to force governments to adopt what some people consider to be more favourable outcomes. It’s called democracy, and we have elections to hold governments to account for their political decisions. It’s also why I’m extremely leery of people calling for a cabinet manual, because it means that more groups will start trying to litigate prerogative decisions, and that’s not a good thing. It’s time these PR proponents let it go and try to fight it again at the next election. Oh, but then it might become clear that this really isn’t an issue that people care all that much about. Shame, that.

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Roundup: The ricochet into Canada

I had idly wondered how long the Trump victory in the United States would take to start showing ricochets in Canada, and apparently it was minutes, as in the middle of the night, Kellie Leitch’s campaign was already putting out fundraising emails drawing comparisons, particularly around their mutual bashing of “elites.” Because Leitch, you see, apparently isn’t an elite, never mind the fact that she’s a paediatric orthopaedic surgeon in Muskoka, a university professor, and former cabinet minister whose was the protégé of the finance minister. No sir, nothing elite about that, because she had to compete with the “biggest old boys’ club” out there, being surgeons, so there. Um, okay. (Incidentally, Leitch previously didn’t want to be compared to Trump, which she kept vacillating over during last night’s leadership debate). And that elite-bashing was quickly picked up by bother other leadership candidates, and others in the party like Tony Clement (who apparently also doesn’t think he’s an elite, despite all evidence to the contrary).

Michael Chong, however, rejected Leitch’s move as being antithetical to the “big tent” Conservative movement that the party is trying to become. Chris Alexander also sounded a cautious note, for what it’s worth, but Lisa Raitt’s tone is less decisive.

Michelle Rempel, however, seems cognisant enough about the trap of demagoguery when it comes to dealing with difficult issues and cautions against importing that ethos to Canada. Rempel also relayed some of her experiences of what she saw during her recent visit to the States, and the alarming levels of discontent among the populace.

Meanwhile, here’s Justin Trudeau’s statement on working together with a Trump presidency. Thomas Mulcair, on the other hand, wants Trudeau to call out Trump. And over in the UK, Jeremy Corbyn is taking on that message of public anger about the “governing elite” and trying to make hay of it, so no, this kind of rhetoric is not endemic to the right.

In terms of fallout, we hear from prominent Canadian women like Kim Campbell, Elizabeth May and Michelle Rempel. Shannon Proudfoot writes about how brutally appropriate the end of the campaign ended up being. Bob Fife notes how the Trudeau PMO has had to scramble to adjust to this new reality. Robyn Urback looks at how the Democrats bungled the election, while the Guardian features a column about how liberals helped Trump’s victory. Anne Kingston writes about Trump winning his war against the media. Paul Wells writes about next steps for Trudeau, while Chantal Hébert wonders how much of Trudeau’s agenda is affected by this change, particularly in areas like climate change, or foreign policy (per John Geddes). Both Paul McLeod and Susan Delacourt saw similarities in the way Trump and Trudeau ran their campaigns. Here’s a look at how pundits and pollsters got things wrong, and Andrew Coyne writes a particularly poignant piece about how Trump’s ability to throw out the rules has vindicated some of the worst elements and impulses, and worries what this signals going forward.

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Roundup: The fiscal update’s hidden gem

The fall fiscal update was delivered yesterday – in the House of Commons, it must be noted – and not unsurprisingly there are deeper deficits projected while the government pledges funds to kickstart an infrastructure bank in the hopes of attracting foreign investment. Oh, and “no path back to balance” is the phrase you’re going to hear an awful lot in the coming weeks. Probably ad nauseum. Oh, and “privatization,” as the NDP now consider the infrastructure banks (because hey, we might have to start paying for the roads and bridges that this bank might fund and we couldn’t have that). That having been said, the debt-to-GDP ratio will be the government’s saving grace when it comes to the size of the deficit, as it should remain relatively stable, while still coming in at the lowest in the G7 by a significant margin. So there’s that.

This all having been said, there were other elements in the update that bear mentioning, and which should not be overlooked, which are some of the changes to the way that Parliament operates. They’re going to make the Parliamentary Budget Officer a full Officer of Parliament (which I have mixed feelings about because this solidifies his status as an unaccountable officer for MPs to fob their homework off onto while hiding behind his analyses as “objective proof” of their partisan accusation), they’re adding new independence to Statistics Canada, and they’re going to open up the Board of Internal Economy. But more important than any of that is they’re going to do something about the Estimates cycle.

Why does this matter? Because MPs are supposed to hold the government to account by controlling the public purse, but over succeeding decades, the ways in which they do that – the Estimates and supply cycle – have become so corrupted that they no longer follow the budget cycle, their accounting methods no longer match the Public Accounts so that they can’t track spending, and in many cases, MPs just vote on the Estimates in a series of votes with zero scrutiny (leaving that job up to the Senate – naturally). So if this government is promising to put the Estimates and Budget cycle back in sync, and to clean up the discrepancies between the Estimates and the Public Accounts, that is a Very Big Deal. It means that it will let MPs do their jobs like they’re supposed to do. (We’ll see if any of them do, especially with an empowered PBO for them to fob that homework off onto, but this will certainly help him too). It’s restoring some of the proper functioning of our parliamentary democracy, and we shouldn’t ignore it.

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Roundup: The expanded deficit

The big news yesterday was of course Bill Morneau’s fiscal update, in which he said that the deficit was slated to rise to $18.4 billion – and then everyone freaked out. But if you take a breath, you’ll see that in there is about $6 billion of wiggle room (or “fudge” as Andrew Coyne called it) when they adjusted down the growth projections of private sector economists – which have been particularly optimistic. As well, much of the current-year deficit is driven by lower revenues rather than new spending, despite what the Conservatives say, which is why the Liberals thought it clever to remark in QP yesterday in response to questions about the deficit that the Conservatives and NDP would be cutting all over the place in order to keep a balanced budget (to which Lisa Raitt, on the evening politics shows, rather indignantly replied “You don’t know that.”)

As part of the changed fiscal picture, the “savings” the previous government booked for changing public service sick leave is now back in books (not that it would have actually achieved savings in the first place). Stephen Gordon wonders if spending to spur growth is the right policy when this period of low growth may not actually be temporary, but rather might be the new normal. Kevin Milligan on the other hand notes that because it’s so cheap to borrow right now that going into deficit won’t really cost as much in the future, as we are not in the same situation as we were 25 years ago. Maclean’s charts the worsening fiscal situation. Kevin Page has questions about the “holes” in the fiscal update. Morneau also hired Dominic Barton as a growth consultant, which likely means a focus on Asia.

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Roundup: The needed reforms to the Estimates

Democratic reforms remain the topic of discussion on the Hill, following Dominc LeBlanc’s appearance at the Procedure and House Affairs committee on Thursday, and some of what he’s talking about is necessary – most importantly, reform to the Estimates process. The Liberals had promised during the election that they would reform the process so that the Estimates were a) readable, and b) resembled the Public Accounts, so that the latter could be used to check over the former. There is probably no greater reform that needs to happen than this, because it’s the job of MPs to hold government to account by means of controlling the public purse. The Estimates are how they plan to spend the money, and the Public Accounts are the accounting of how it was spent. When both are reported using different accounting methods, and with the Estimates currently being largely unreadable to the layperson, it makes that accountability nigh impossible to do. It’s no wonder that the process has largely devolved to voting them through at all stages with no actual discussion or scrutiny (as they did in December, only for the Senate to catch their mistakes when they ballsed it up in their haste). It’s also why MPs have been consistently fobbing off that homework to the Parliamentary Budget Officer, the Auditor General, and increasingly the Senate, while ministerial visits to committee to discuss the Estimates for their departments are spent answering questions on issues of the day rather than the Estimates they were there to talk about. Add to that, there’s the “deemed” rule, whereby Estimates are deemed to be agreed to and passed after a certain date, so MPs couldn’t even hold them up if they wanted to. It’s so entirely broken, which is why the Liberal promise to fix this system is so damned important. Of course, with the good comes the bad – talk of eliminating Friday sittings, possibly with longer days on Tuesdays and Wednesdays to compensate (but what about the “family friendly” elimination of evening sittings so that MPs can have dinner with their families?), and assurances that they wouldn’t actually be getting Fridays off, but working in their constituencies. The problem there is that constituency work is not actually part of an MP’s job – the ombudsman role they play on behalf of their constituents’ interactions with the civil service has grown over the years until it’s metastasised into this beast now where there are stories that the immigration department won’t touch files until they are forwarded by the MP’s office (so far down the slippery slope to corruption it’s alarming), and MPs continue to spend their resources doing this work rather than their actual jobs of scrutinizing the Estimates or legislation. In other words, eliminating Friday sittings makes this problem worse, not better. LeBlanc also did agree that a proposal to ban applause in the Commons may be something else worth considering to help improve decorum, and I would agree that even more than the constant sanctimonious tut-tutting about heckling, applause and scripts are the bigger problems that should be tackled if we want to be serious about making changes to the way our MPs do business.

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