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: Harder’s shrouded call for time allocation

Government Leader in the Senate – err, “government representative” Senator Peter Harder is back at it again, reviving his terrible idea of a Senate business committee, and putting out a piece about how great it would be. Just imagine, he says – ensuring that there are fewer gaps between interventions on bills will mean that Canadians can follow the debate more easily! It will safeguard substantive debate! The unspoken issue here is that it won’t let someone, probably the Official Opposition in the Senate, to delay debates.

In other words, Harder not only wants a committee to time allocate all government bills in the Senate, he wants to delegate the authority to do this time allocation to a particular clique who will do the dirty work for him (because as we’ve seen time and again, he’s loathe to do the actual negotiation of debate timetables with the other caucus groups as it is). This should, of course, be concerning to everyone because the Senate doesn’t debate bills like the House of Commons does, nor should it. The way the rules are currently structured maximise the rights of individual senators to speak to any bill or motion before the Senate, and it gives them an opportunity to carefully draft responses to the matter that were just given before them, rather than, as the Commons does, simply have them draft generic speeches that will then be read into the record (unless you’ve got someone adept enough to speak extemporaneously for their allotted time, which happens not at all in the Commons, and very rarely in the Senate). There is no actual demonstrated need for this – there isn’t any kind of crisis of bills not passing the Senate, and the few bills that are being deliberately delayed are either private members’ bills (which Senate rules don’t allow for time allocation), or it’s because the newer senators haven’t learned the procedural tactics that are letting the Conservative senators take as many adjournments on debate as they can. It’s a temporary problem that Harder is misdiagnosing and is looking to wield a sledgehammer to fix, completely unnecessarily.

As I’ve argued before, any gamesmanship that the Conservatives are playing is leaving the Senate vulnerable to arguments like Harder is making to need these kinds of time allocation measures – and they should be aware that they’re making Harder’s arguments for him. But it’s an unnecessary proposal that Harder is making, and one that not only misunderstands how things work in the Senate, but it will have consequences and it will diminish, rather than enhance, the debate. But we have a rich tradition of tinkering with the rules and making things worse off as a result that Harder is playing right into.

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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.

https://twitter.com/andrew_leach/status/953109841144250368

https://twitter.com/andrew_leach/status/953111531994034176

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https://twitter.com/andrew_leach/status/953113671860813824

https://twitter.com/andrew_leach/status/953123399286452224

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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: Lagging CBSA oversight

A report commissioned by PCO advises for the creation of a new oversight body for both the CBSA and the RCMP, given the amount of overlap between the two bodies when it comes to law enforcement. Currently, CBSA has no civilian oversight, though its national security functions are just now getting some oversight under the National Security and Intelligence Committee of Parliamentarians, and those functions would likely fall under the creation of the new intelligence commissioner created in Bill C-59 – but those don’t deal with the day-to-day interactions at the borders, or with some of their other functions, like immigration detention.

What the Canadian Press story doesn’t mention is that there is right now a Senate bill sitting on the Order Paper, which passed the Senate unanimously, to create a CBSA Inspector General. In fact, it passed in October 2016, and has been sitting there ever since, as no MP has bothered to sign up to sponsor it (which is unusual in the extreme). More unusual is the fact that Ralph Goodale had previously signed up to sponsor the version of the bill that was being debated in the previous parliament, but now that he’s public safety minister, he’s become much more gun-shy, saying that they need to do more consultation and will come out with their own bill. But almost a year-and-a-half later, it’s still sitting there, when it could be amended by the government to make whatever technical fixes they deem necessary and swiftly passed. (I last wrote about this for the Law Times a year ago).

Of course, if they wanted to go that route, the government would need to give the bill a Royal Recommendation and put in implementation language into the bill – something that it currently lacks to get around the requirement that it can’t spend money. In other words, it’s a framework but nothing more at this point. But if the government were serious about oversight for CBSA, they could do something to ensure that it happens expeditiously. But that commitment to oversight seems to be a bit more academic at this point, given that they haven’t moved on this in all this time. And that should be mentioned in these more recent stories, but haven’t been.

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Roundup: Will American tax changes affect us?

With the excitement building over that coming US tax cut legislation (if one can call it that), we have already started seeing reaction here in Canada about how we should react, and while there has been some predictable demands that we start cutting our own corporate taxes yet again, others have called for a more pragmatic approach. In the Financial Post, Jack Mintz foretold doom for our economy in the face of these changes. With that in mind, Kevin Milligan tweeted out some thoughts:

It also hasn’t gone unnoticed that these changes will create all manner of new loopholes around personal incorporation to avoid paying income taxes – kind of like Canada has been cracking down on this past year. Imagine that.

To that end, Milligan offered a few more thoughts about the experience around implementing these kinds of changes.

Meanwhile, my Loonie Politics column looks at whether the process used by that American tax bill could happen in Canada. Short answer: no.

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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: Another run refused

Over the weekend, the NDP made a big deal out of the fact that new leader Jagmeet Singh was “going home” to Windsor, a city where he grew up. But immediately upon arriving, he told reporters that no, he had no plans to run for a seat in the area. Never mind that he a) doesn’t have a seat currently, b) has a connection to Windsor, and he says he wants to run in a riding that he has a connection to, and c) he has three seats in the region which are relatively safe for the party, all of which are conducive to his actually doing the time-honoured thing in our system of getting one of those three MPs to temporarily step aside and let him run for a seat there in their stead for the next couple of years. And it’s not like the party won’t be able to come up with some kind of job for the displaced MP for those two years – they have found work for other displaced MPs, and hell, they could even put him or her to work in the local riding office to keep that connection going, and top up their salary from party coffers rather than pay Singh from them outright for the next two years. But no.

Meanwhile, Guy Caron is in the House of Commons four days a week, and apparently is taking a bigger hand in running the staff in the leader’s office in Ottawa (given that Singh can barely be arsed to be in Ottawa even once a week), which leads me to wonder what exactly Singh’s role as party leader actually is. Furthermore, how is he able to actually wield any authority, either with the caucus or with the staff in the leader’s office, if he’s never there? And if I’m Charlie Angus or Niki Ashton, who did better than Caron in the leadership and who are now back to their old critic roles with nothing more to show for it, I’m probably getting pretty sore that Caron, who came in last, is now the de facto leader. If I’m an NDP supporter, I’m also probably pretty concerned that Singh has immediately sidelined himself into the role of a figurehead who has no institutional role, wields almost no authority, and is merely there to tour the country, give a couple of speeches and have a few photo ops.

Nothing about this situation is acceptable in a parliamentary democracy, and absolutely no part of this is acceptable when it comes to defending Parliament itself. By insisting that parliament is irrelevant, Singh is doing fundamental damage to the institution in the eyes of Canadians, and that should raise the red flags of everyone. How can you lead a party that wants to win more seats in an institution when you personally can’t even be bothered to do so? It’s perverse, and people in his party need to start demanding that either he respects our system of government and gets a seat immediately, or maybe it’s time to find a leader who can.

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Roundup: A new justice named

Justice Sheilah L. Martin of the Courts of Appeal for Alberta, Northwest Territories and Nunavut, has been nominated as the next Supreme Court of Canada justice, slated to replace outgoing Chief Justice Beverley McLachlin. Martin, who was born and educated in Quebec and is fluently bilingual and knowledgeable in both common law and Quebec’s civil code, and has been on the bench in the North as well as the west. She was once dean of a law school and has not only contributed to legal scholarship, but has also weighed in on some significant cases in her time on the bench, with pretty well-considered judgments. She is not, however, Indigenous, like many had been hoping. (For more on Martin, here is the link to her application questionnaire, and also follow the embedded Tonda McCharles tweet thread).

The issue of demanding bilingual judges is going to be an impediment for Indigenous candidates, for whom it creates an additional barrier, and when NDP leader Jagmeet Singh dared to suggest that perhaps they create an exception to that would-be rule for Indigenous nominees, he was forced by the rest of his party to walk back from that statement in favour of some platitudes about helping would-be Indigenous candidates with official language capacity instead. Note that NDP MP Romeo Saganash has come out against party policy to say that this demand for official-language bilingual judges hurts the cause of more Indigenous justices on the bench, but apparently that perspective is being silenced.

While some Indigenous lawyers are upset by the choice of a non-Indigenous jurist, I think we do need to recognize that the feeder pools with provincial Superior courts and the Courts of Appeal still have large diversity problems, which is why this government went about reforming the process to appoint those judges (and partially why it’s taking so long to fill those vacancies). When the trickle-down starts to happen there, it will mean a bigger pool of diverse candidates available in the future that may not be there right now. Of course, we won’t know the demographics of who applied to this round, so that does matter as well (and we won’t know for another month), so we may get more answers at that point.

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