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.
The Conservatives’ final Supply Day motion of the year, and they chose to use it to both demand that the government bring any returning ISIS fighters to Canada to justice, while simultaneously condemning them for the Omar Khadr settlement – you know, the issue that they were going to hammer the government hard on back in September which didn’t materialize.
Very exciting because here is the Khadr motion the Conservatives at first promised for September. https://t.co/c4OhfJn38O
As you can expect, the arguments were not terribly illuminating, and lacking in any particular nuance that the topic should merit, but that’s not exactly surprising. Still, some of the lines were particularly baffling in their ham-fistedness.
Regardless of the timeframe, it's a pretty extraordinary argument.
Amidst this, the CBC published a piece about Canada’s refusal to engage in extrajudicial killings of our own foreign fighters out of the country, asking lawyers whether Canadian law actually prevents it, which not unreasonably has been accused of creating a debate out of nothing.
Not distinction I would make. Does not reflect actual standard in the laws of armed conflict, which turns on whether someone has become targetable by directly participating in hostilities (DPH). It’s not the list that matters, its the “in what circumstances are they killed” /1
Bottom line: we can have all the lists we want, but combatants can only kill other combatants in law of armed conflict. And so list or no list, would be war crime to target someone not directly participating in hostilities. /3
Like, is The Purge next? We don't have the U.S-pioneered definition and rule-of-law around "unlawful enemy combatant." (Nor should we. Nor is anyone really proposing this.) We can't just go around offing our citizens, will-nilly.
And this is really the key point. Treating issues like this one in a ham-fisted manner, whether it’s with a Supply Day motion designed to fail, or a debate created out of nothingness, is playing into the fear industry that we really should be trying to avoid. This is not the kind of nuanced debate that we should be having, which hurts everyone in the long run.
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.
A tip: Many many things have changed since the 1990s. If you're pushing the same fiscal policy advice in 2017 as 1994 you're doing it wrong.
As stated for their upcoming Supply Day motion (currently scheduled for Monday, the Conservatives have drafted a resolution that would see the House of Commons express non-confidence in Minister Sajjan and Minister Sajjan alone. It’s the kind of thing that makes me want to bash my head into a wall before my head explodes because it’s so very boneheaded from start to finish.
First of all, you should read this post by James Bowden, who takes apart the motion to and shows that it is unconstitutional. What is more interesting is the fact that the NDP tried this tactic before when Rona Ambrose was minister of the environment, and the Speaker ruled it out of order then, just as Speaker Regan should this time. Why? Because one of the fundamental tenets of Responsible Government is that of Cabinet solidarity. Cabinet lives and dies as a single body – there is no dispensation given to ministers we like, or to simply cull the prime minister from the rest of them in these kinds of votes. It’s an important feature of why the system works the way it does, and trying to cherry pick it for the sake of political tactics makes one a bit queasy because this is our very system of government that we’re talking about and they should bloody well know better.
Look, I get that they’re trying to exploit what they see as low-hanging fruit with Sajjan, but along the way, they’ve been dangerously blurring the lines of civil-military relations by asserting that the troops want him gone (do they aside from a few cranks? Never mind that it’s not these soldiers’ call), and by referencing Sajjan’s actions in military terms rather than political ones. Trying to use the term “stolen valour” is also offensive, not only because it’s generally reserved for someone who dons a uniform or medals without having been in combat (which is not the case with Sajjan), but because they’re co-opting it from the military for political benefit. But now they’re trying to go against the fundamentals of Responsible Government to score what they hope will be a cheap win.
That Her Majesty’s Loyal Opposition is trying to burn the system to the ground to score a couple of points is a very serious problem, and one indicative of a party that is more focused on populist spin than they are in being principled. It’s a disturbing pattern, and one that they should knock off before they go too far down this garden path.
If there’s one thing that we’re talking about right now that’s not the interminable Standing Orders debate, it’s Senator Lynn Beyak, of the “well intentioned residential schools” remarks, which came shortly after her incomprehensible remarks about trans people while saying that good gays don’t like to cause waves. And after being removed from the Senate’s Aboriginal Peoples committee, she put out a press release that didn’t really help her cause.
Of course, the more we talk about Beyak in the media and demand that Something Must Be Done about her, the more it’s going to embolden her and her supporters. The fact that she’s starting to martyr herself on the cause of “opposing political correctness” is gaining her fans, including Maxime Bernier, whom she is supporting in the leadership. Bernier says he doesn’t agree with her statement about residential schools, but he’s all aboard her “political correctness” martyrdom. Oh, and it’s causing some of the other Conservative senators to close ranks around her, because that’s what starts to happen when someone on their team is being harassed (and before you say anything, my reading of Senator Ogilvie’s “parasites” comment was more dark humour in the face of this situation than anything, and reporters taking to the Twitter Machine to tattle and whinge makes We The Media look all the worse).
But seriously, Beyak is not an important figure. She’s marginal at best within her own party, and her comments have marginalized her position further. But the more that people continue to howl about her, or post e-petitions demanding that the government remove her (which is unconstitutional, by the way), the more she turns herself into a martyr on this faux-free speech platform that is attracting all manner of right-wing trolls, the more she will feel completely shameless about her words. We’ve shone the spotlight, but sometimes we also need to know when to let it go and let obscurity reclaim her.
How did this Beyak thing turn into a free speech issue? Was she arrested? Jailed? Fined?
A group of East Coast lawyers has decided to launch a court challenge about the possibility that the government might appoint a new Supreme Court justice that is not from Atlantic Canada, and my head is already hitting the desk because while you can conceivably argue that the regional composition of the court may very well be a constitutional convention, by that very same argument, a constitutional convention is non-justiciable, so you can’t actually take it to court.
I realize recent jurisprudence on amendment clouds this issue (indeed, I edited a book on it) but COME ON. 2/2
So, to recap, until an appointment is actually made, the whole quixotic venture is premature. Constitutional conventions are politically enforceable but not legally, in part because we don’t actually want people to constantly take the government to court when they lose at politics (which already happens too much – and it’s almost as bad as writing to the Queen when you lose at politics). There was a court case not too long ago when Democracy Watch took the government to court because Stephen Harper went to the Governor General to call an early election despite the (useless) fixed-election date legislation having been enacted, and the courts dismissed it because prerogative powers are constitutional conventions (and while unwritten, are nevertheless still part of our constitutional framework).
And don’t get me wrong – I do think there is a very good case that the regional composition is a constitutional convention because it reflects the federalist principle that is necessary to give its decisions the political legitimacy necessary to be the arbiter of jurisdictional disputes in this country, and that is a pretty big consideration. But the courts are probably not the best place to solve this issue. Having the Atlantic premiers write the Justice Minister to warn her about breaching the convention is probably a better course of action, as would having backbench Liberal MPs from the region expressing their displeasure (though, for all we know, they may already be doing so behind closed doors in the caucus room). And a public campaign that lays out this argument (as opposed to just one centred around it being unfair or about maligning the political correctness of trying to find a new justice that better reflects certain diversity characteristics) wouldn’t hurt either. But this group of lawyers should know better than to try and make a non-justiciable issue justiciable.
There was an interesting read over on Policy Options yesterday that all MPs should be paying attention to: a reminder that they should watch what they say in when speaking about bills, because the courts (and most especially the Supreme Court of Canada) are checking Hansard. When it comes to challenging laws, particularly Charter challenges, the issue of legislative intent is often raised, and the courts are forced to determine what it was the government intended to do when they passed these laws, and that can matter as to whether those laws will survive a Charter challenge. And if MPs – and most importantly ministers – give speeches full of bafflegab and meaningless talking points, it muddies the record that the courts rely on. The example here was the bill eliminating time-served sentencing credits, by which the court examined Rob Nicholson’s statements and tested them against the results of the law and found that no, eliminating the sentencing credits didn’t enhance public safety or confidence in the justice system. I would also add that it’s yet another reason why Senate committees have particular value, particularly when it comes to contentious bills that perhaps shouldn’t pass but do anyway under protest. Because their findings are on the record, when those laws inevitably wind up in the courts, those same objections can be read and taken into consideration. So yes, your speeches and work in parliament does matter, probably more than you think. Just be sure to use your words wisely, because they will come back to haunt you.
Lots of developments in the Senate, so let’s get to it, shall we? Kady O’Malley looks into the ways that the Senate is going through the process of reshaping itself to fit the new reality that they find themselves in, and so far they’ve been doing it in a fair-minded way, tempering some the partisan excesses of the previous parliament while they start adjusting their rules around things like Question Period in the new scheme they’ve developed. I’m still a little hesitant, considering that they’re losing some of the pacing and ability to make exchanges that made Senate QP such a refreshing change from Commons QP, but we’ll see once they start working out the kinks. Meanwhile, the Senate is trying to adapt its Conflict of Interest committee to a reality where there are no “government” senators, and more debate about how to include the growing number of independent senators into that structure. We’ll see how the debate unfolds in the next week, but this is something they are cognisant about needing to tackle, just as they are with how to better accommodate independent MPs with committee selection as a whole. Also, the Senate Speaker has ruled that the lack of a Leader of the Government in the Senate does not constitute a prima facia breach of privilege, convinced by the argument that the lack of a government leader doesn’t affect the Senate’s core ability to review and amend legislation, and that the primary role of the chamber isn’t to hold government to account. I would probably argue that it may not be the primary role, but it is a role nevertheless, but perhaps I’m not qualified enough to say whether that still constitutes an actual breach of privilege, as opposed to just making the whole exercise damned inconvenient and leading to a great number of unintended consequences as they venture into this brave new world of unencumbered independence. At this stage, however, things are all still up in the air, and nothing has really crashed down yet, but it’s a bit yet. By the time that Parliament rises for the summer, we’ll see if all of those broken eggs wound up making a cake, or if we just wind up with a mess.
The defence minister’s slow rollout of the new plans going forward in the Iraq mission to combat ISIS has been providing the government an opening in which to be attacked by both sides, but when Harjit Sajjan hits back against the government, there have been a few cries by the Conservatives that are a wee bit defensive. When Sajjan suggests that there were failures, the Conservatives wonder aloud if that means the girls who are going to school, or the humanitarian work that’s been done over the years. Sajjan, who was on the ground in Afghanistan for three tours, and has mused openly about looking to avoid the same kinds of mistakes, has plenty of ammunition to choose from. Read any book about the mission, and you’ll find countless examples of problems of poor management, poor communication, and as Sajjan has noted, unintended consequences of actions we’ve taken that helped our enemies in the longer term, particularly with recruitment. That he wants to take the time to get a new mission on the ground in Iraq right is hardly surprising in this context, but everyone demands answers. Meanwhile, Canada’s in the bottom third of allies in NATO for defence spending, which shouldn’t surprise anyone, though it has noted that capability and spending levels are not necessarily the same thing, and that countries who meet spending targets are generally useless.
There’s a rather disquieting story in the Huffington Post that quotes a couple of unnamed former Senate staffers, who point the finger at Senate Speaker Leo Housakos as the source of the leaks of the Auditor General’s report into senators’ expenses. And to be clear, in the past couple of weeks, I’ve heard similar tales being floated by someone else on the inside who witnessed it happen, and later witnessed Housakos deny it to other Senators. And indeed, Housakos was in the big chair when he found a prima facia breach of privilege when Senator Céline Hervieux-Payette raised the issue in the chamber, and with that finding, it went to the Senate’s rules committee to study the matter; that study was suspended when Parliament was dissolved, but it could be revived once the committee is reconstituted. That breach of privilege is a pretty big deal, and the fact that more than one person is now coming forward to say something is telling. This going public is also going to put pressure on Prime Minister Trudeau with regards to what he’s going to do with the question of appointing a new Senate Speaker. To be clear, this is a Prime Ministerial appointment because, unlike the Commons Speaker, the Senate Speaker is higher on the Order of Precedence as he or she fills a variety of additional diplomatic and protocol functions that the Commons Speaker does not, and is considered a representative of the Crown. If the current representative is not deemed to be trustworthy, and has indeed violated the privilege of Senators for his own ends, then it seems difficult to see how he can be trusted to stay in the post, and it may light a fire under Trudeau to do something about it, while the rest of the Senate remains in the dark about how they’re going to organise themselves as Trudeau drags his feet.