Roundup: Pipeline demands versus environmental legislation

The pipeline drama between Alberta and BC continues to carry on at a dull roar, with yet more demands by the Conservatives that Trudeau return home to deal with the situation, and Jason Kenney demanding that the federal government take BC’s government to court, Trudeau reiterated from a press conference in San Francisco that yes, they will ensure that the Trans Mountain pipeline will get built, and reminded Kenney et al. that you can’t take BC to court over a press release. They’ve just stated intentions and haven’t done anything yet. Take a deep breath.

Amidst all of this, the federal government unveiled their new environmental assessment legislation yesterday, and pointed to it when answering questions on the pipeline battle. The new bill undoes much of the changes made during the previous Conservative government, but also places new streamlined processes with legislated timelines and a plan to replace the Canadian Environmental Assessment Agency with the Impact Assessment Agency of Canada, and the National Energy Board with the Canadian Energy Regulator. The Conservatives don’t like it because it undoes the changes they made, and the NDP don’t like it because they say it leaves too much uncertainty, but one suspects that the fact that neither other party likes it suits the Liberals just fine.

As for the pipeline battle, Jason Markusoff looks at what needs to happen for Alberta and BC to stand down from their respective positions, while John Geddes notes how little wiggle room that Trudeau has given himself.

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Roundup: Improperly claiming a state function

News came out of the PMO first thing yesterday morning that the PM was planning a “state visit” to India, with stops in Agra, Amritsar, Ahmedabad, Mumbai, and New Delhi in mid-February. And congratulations if the terminology there made you look askance.

Apparently nobody but Paul Wells clocked them on this fact, and it’s not really surprising, but it’s tremendously disappointing. Why? Because Trudeau and his PMO should know better, especially after we lived through the first few years of the Harper era where he was deliberately blurring the lines between his functions as head of government and the ceremonial trappings of head of state, as Harper got inappropriate salutes from honour guards on Canada Day, or he put himself on the parade podium during Remembrance Day ceremonies (at least, until members of the Royal Family showed up on those events and put him in his place, protocol-wise). You would think that, in the interests of not following Harper’s example, that they would want to actually use proper protocol. But apparently not.

This shouldn’t be that hard, but I’m torn as to whether we chalk this up to simple incompetence, or whether this is part of the trend that has been grumbled about where Trudeau seems more interested in the ceremonial trappings and the appearance that he would rather be Governor General than prime minister. I’m generally a fan of the theory that one shouldn’t attribute to malice what simple incompetence will explain, but come on. That said, the amount of protocol slippage in recent years is reaching epidemic proportions, with state funerals being granted to those who did not merit them, and the fact that this government hasn’t replaced the Canadian Secretary to the Queen following his retirement, meaning that our point of contact with Buckingham Palace is in the hands of bureaucrats in the department of Canadian Heritage of dubious motives and ability (and everything I’ve heard is that they tend to be small-r republicans, hostile to our constitutional monarchy). This is a disturbing trend, and we should call it out before it gets worse.

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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: Draft climate legislation revealed

The government unveiled their draft legislation for carbon pricing mechanisms, largely as the backstop for those provinces whose governments are toeing the agreed-upon line, and it includes both pricing incentives for those who can get 30 percent below the national standards, as well as the ability for the federal government to directly reimburse individuals for their carbon payments rather than just returning it all to provincial coffers and letting the provincial government figure it out.

Energy economists Andrew Leach and Trevor Tombe dig into the announcements a bit more.

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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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QP: One last go at the PM

On what promises to be the final sitting day of 2017, all of the leaders were present, and duelling Christmas poems by Mark Strahl and Rodger Cuzner, things got underway. While some of Strahl’s lines raised eyebrows (particularly the line about Scheer’s virility), Cuzner’s annual poem didn’t disappoint.

Andrew Scheer led off, railing about the “devastating” small business tax changes. Justin Trudeau reminded him that small business taxes were being lowered, and restricting income sprinkling was about ensuring that people couldn’t take advantage of loopholes. Scheer insisted that the changes spelled doom, and Trudeau responded that the opposition had become so partisan that they treated a small business tax cut as a bad thing. Scheer listed off the supposed ways in which the government has apparently attacked taxpayers, but Trudeau insisted that they were doing everything to grow the middle class, and noted how many jobs had been created. Scheer pivoted mid-retort to decry Trudeau’s “erratic behaviour” on the trade file, to which Trudeau reminded him that they weren’t going to sign any deal, but only wanted good deals for Canada. Scheer was concerned that Trudeau was endangering the NAFTA talks, to which Trudeau reminded him that capitulation was not a trade strategy. Guy Caron was up next to bay about the nomination process for the new Ethics Commissioner, and Trudeau noted that they started engaging the opposition for criteria of this process last June, and if they didn’t have confidence, they should say so. Caron insisted that their dispute was with the process not the candidate, and that they couldn’t trust a process where the committee was dominated by cabinet staff. Trudeau responded with a defence of that process, with a slightly disappointed tone. Alexandre Boulerice was up next, and he railed that the Commissioner wouldn’t promise to carry on current investigations and insinuated that the government was trying to sweep everything under the rug. Trudeau insisted that the process was merit-based, and when Nathan Cullen got up to list the alleged ethical violations of the government, Trudeau responded with disappointment that the opposition was relying solely on personal attacks.

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Roundup: A new Chief Justice

The justice minister announced yesterday morning that the prime minister would be naming Justice Richard Wagner as the new Chief Justice of the Supreme Court of Canada, thus both respecting the tradition of alternating between a Common Law and a Civil Law judge as the Chief, as well as picking an accomplished jurist who has 15 years left on the bench, ensuring that there is a long enough period of stability on the Court. Wagner is well respected in the Quebec courts, where he hailed from, and it is noted that he doesn’t really fit into the left-right divide – something that is not only indicative of our Canadian system, but is one of those things that people point to when they note how a Liberal PM can elevate a judge chosen by his Conservative predecessor.

A trip to the Maclean’s archives finds this piece by Paul Wells on the day that Wagner was named to the Supreme Court was also the day that Justin Trudeau threw his hat into the ring for Liberal leadership, and that both men had famous fathers in political circles. Tasha Kheiriddin notes the choice of Wagner is a safe one.

It’s also worth noting that Wagner also becomes Deputy Governor General with his elevation to Chief Justice, and he can grant royal assent to bills in the event that the GG herself is ill or absent; he opens Parliament before a Speaker is elected; and he will head the committee in charge of nominating people to the Order of Canada. The practice since 1939 also used to be that the Chief Justice would close a session of Parliament instead of the Governor General following some particular manoeuvring by Mackenzie King while the GG was out of town, until the government stopped with prorogation ceremonies. (If you ask me, they should restore the ceremonies, but with the GG doing them).

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