Roundup: An unconstitutional motion

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.

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Roundup: Making a martyr of herself

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.

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Roundup: Don’t take conventions to court

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.

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.

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Roundup: Checking Hansard

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.

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Roundup: Making adjustments on the fly

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.

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Roundup: Looking to avoid mistakes

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.

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Roundup: A troubling allegation

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.

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Roundup: The other ruthless dictator

NDP-turned-Green MP Bruce Hyer is warning that Thomas Mulcair will be as dictatorial of a Prime Minister as Stephen Harper if elected. To which I would reply “quite possibly.” While some of Hyer’s criticisms are that Mulcair will say anything to get elected, that’s fairly standard practice across a host of different parties and even leaders – and don’t think the Greens are much better, if you looked at how Kevin Milligan eviscerated their election platform’s costing over the weekend. But Hyer does have a point in that Mulcair’s NDP has been a very tightly controlled ship. Iron-fisted in many respects, but it does go back to the 2011 election, when Jack Layton was still in charge. The moment the election was over and they had accidentally won that wave of Quebec seats, with all of those paper candidates, the party went into communications lockdown and messaging became even more tightly controlled than that of the Conservatives. The NDP went so far as to centralise their communications media relations – something even the Conservatives hadn’t done, with their famous control from the centre. This carried on through the leadership and was adopted by Mulcair when he became leader, so it’s not just him that’s doing it – it’s the party’s entire apparatus. And it’s not like the NDP was this bastion of free voting even when Layton was in charge – MPs were routinely punished for stepping out of line with their votes, be it with QP slots taken away, or what have you. Solidarity was enforced, much as it continues to be under Mulcair. While I find José Nunez-Melo’s sour grapes at his nomination not being protected to be a bit rich, it does bear reminding that there is a darker side to the NDP that they don’t like to show or talk about, but it is there if you pay attention, even if Hyer is trying to pin it on Mulcair personally.

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Roundup: Breaking the debates

The Conservatives have decided that they’re going to opt out of the major broadcasters when it comes to election debates this fall, and will instead entertain the option of independents who don’t have the same kind of widespread broadcast capabilities, by accepting the invitations of Maclean’s/Rogers, and TVA in French. In a way, it’s more of this attempt to portray themselves as poor, put upon underdogs that the “big media elites” are trying to control – as though being in power for the past ten years doesn’t make them elites. There has been this particular undercurrent in pre-election conversation that they want plenty of debates because apparently it’ll be how they can trip up Justin Trudeau (ignoring both the fact that he cleaned up in his party leadership debates, and the fact that the more debates, the more chance that any gaffes will be minimised). It’s also a curious strategy that they would forgo the broadest audience that the major broadcasters’ consortium could provide – and a bit tone deaf as to the reality of the media landscape that they think that it’s just a matter of some university hosting an event and everyone brings their cameras. What it does is twofold – firstly, it’s a power game by the Conservatives to unilaterally pull out of the consortium negotiation process and throw everyone into disarray, and secondly, it’s an attempt to control those debates by creating a proliferation of independent offers that they can then cherry pick when it comes to things like format and hosting choices. It has also been pointed out how hypocritical their position is considering that they very rarely allow their candidates to even attend local debates, so for them to be concern trolling over the state of the leaders’ debates is a bit rich. Suffice to say, it’s throwing a lot of added confusion out there and is setting up a power play that will further break our system more than it already is.

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Roundup: Foolishly demanding Supreme Court intervention

In an attempt to continue to stall having to repay their satellite office expenses, the NDP have taken the incredulous move of demanding that the government refer the matter to the Supreme Court, so that they can decide whether the matter is even justiciable before the NDP’s challenge at the Federal Court goes ahead. Oh, and they’re not going to pay a cent back until they have final say from the courts, and given the pace at which these things happen, it sounds an awful lot like they’re trying to keep putting this off until we’re into the writ period, if not later. More to the point, this is completely crazy and irresponsible because it’s a self-inflected blow to parliamentary sovereignty. Parliament decides its own rules because it’s the body that decides upon the creation of laws in this country, and it has privileges to ensure that it can do so without interference from either the Crown or its agents. What’s worse is how the NDP worded their press release – that they want the Supreme Court “to intervene,” amidst their whinging that this is because the Conservatives and Liberals re being mean to them for partisan reasons – never mind that it was the Clerk who discovered that they broke the rules. The fact that they are wording this in such a way makes it sound like they want the Supreme Court to be the babysitters of Parliament – which is not their job – and furthermore sounds about one step away from them calling on the Queen to intervene for them because they’re not getting their way. It’s political desperation, and it’s a terrible road to start travelling down, to voluntarily start stripping parliament of its privileges because they refuse to own up to their own poor judgement.

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