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: Privilege case at the SCC

There is an interesting case being heard at the Supreme Court of Canada today, which goes to the heart of how laws are made in this country. An Alberta First Nation, the Mikisew Cree, applied to the Federal Court for judicial review of the 2012 Conservative budget implementation bill after its changes to environmental legislation didn’t consult them, per Section 35 of the Constitution. The problem? You can’t have the courts interfere with the legislative process. That goes to the heart of parliamentary privilege and the separation of powers.

The Federal Court allowed a partial application, citing that they should have been given an opportunity to make submissions, but this was overturned by the Federal Court of Appeal, which (correctly, in my view) cited that the Federal Court Act had no jurisdiction over the legislative process, and that it offended parliamentary privilege and the separation of powers, and there was an additional issue that this omnibus bill was of general application and did not apply specifically to this First Nation. The Supreme Court of Canada now gets to hear the issue and decide whether or not this should be the case in the face of the constitutional duty to consult.

While I’m sympathetic to the need to consult on these issues, particularly on issues that will affect their lands and ability to have engage with the processes that are created out of the regulator bodies that are engaged by the legislation once it is enacted, I do have a problem with the demands that any outside group be included in the drafting process. And while the current government has made a great deal of effort doing consultations before they draft bills (and there is no shortage of grousing as to how it slows down the process), there are usually plenty of opportunities to intervene once the bill is tabled and reaches committee hearings in both the Commons and the Senate. This is how parliament is supposed to work. Trying to short-circuit this has an effect on things like cabinet secrecy, and more likely, could grind the legislative process to a halt if you were dealing with a group that wanted to be obstinate. But also, it bears reiterating that parliamentary privilege and the separation of powers are not things to be trifled with, because it undermines the ability of parliament to do its work. While I’m confident that the Supreme Court will do the right thing, I do worry that this case has made it this far and could be victim of novel thinking that could do lasting harm to our institutions.

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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: Unifying the prohibitions across departments

The federal government has issued new guidelines for foreign intelligence likely obtained through torture, so that it now covers the Canadian Forces, the Canadian Security Establishment, and Global Affairs Canada. This means that they are prohibited from using such information, except if it’s going to save lives either from an imminent terrorist attack or protecting Canadian troops on an overseas mission. This appears to harmonize direction handed down earlier to the RCMP, CSIS, and CBSA, so that all national security agencies (which are now under the same parliamentary oversight regime and will soon be under an independent arm’s length national security oversight regime) will have the same rules and restrictions. For some, it’s reassuring that the government is taking the issue seriously, but for others, the caveat isn’t good enough, and they need to issue a full prohibition, no caveats, no exceptions, full stop. Stephanie Carvin has more reaction to the announcement here:

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Roundup: The Order Paper is not a race

The House of Commons has risen for the season, but still has a number of bills on the Order Paper slowly working their way through the process. And as usually happens at this time of year, there are the big comparisons about how many bills this government has passed as compared to the Conservatives by this point. But those kinds of raw numbers analyses are invariable always flawed because legislation is never a numbers game, but is qualitative, as is the parliamentary context in which this legislating happens.

Part of the difference is in the set-up. Harper had five years of minority governments to get legislation in the wings that he couldn’t pass then, but could push through with a majority. He went from having a Senate that he didn’t control and was hostile to his agenda to one where he had made enough appointments (who were all under the impression that they could be whipped by the PMO) that it made the passage of those bills much swifter. And they also made liberal use of time allocation measures to ensure that bills passed expeditiously. Trudeau has not had those advantages, most especially when it comes to the composition of the Senate, especially since his moves to make it more independent means that bills take far longer than they used to, and are much more likely to be amended – which Trudeau is open to where Harper was not – further slowing down that process, particularly when those amendments are difficult for the government to swallow, meaning that they have taken months to either agree to them or to come up with a sufficient response to see them voted down. And then there are the weeks that were lost when the opposition filibustered the agenda in order to express their displeasure with the initial composition of the electoral reform committee, the first attempt to speed through legislation, and the government’s proposal paper to “modernize” the operations of the Commons. All of those disruptions set back legislation a great deal.

This having been said, Trudeau seems to remain enamoured with UK-style programming motions, which he may try to introduce again in the future (possibly leading to yet more filibustering), because it’s a tool that will help him get his agenda through faster. So it’s not like he’s unaware that he’s not setting any records, but at the same time, parliament isn’t supposed to be about clearing the Order Paper as fast as possible. Making these kinds of facile comparisons gives rise to that impression, however, which we should discourage.

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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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Roundup: A couple of reality checks

As we head into the final week of the Commons’ sitting for 2017, there have been a couple of recurring themes in the past few weeks that could each use some good dose of Stephanie Carvin. The first issue remains that of returning foreign fighters, and the way in which the Conservatives keep repeating in Question Period that the Liberal strategy is apparently “poetry and podcasts,” which a) nobody has seriously suggested, and b) deliberately confuses preventative deradicalization programmes with those geared toward rehabilitating those who have returned from foreign warzones who may not have been active combatants (most of whom are dead by this point).

And then there is the Prime Minister’s trip to China, where a free trade deal wasn’t secured, which Carvin is an acknowledged China sceptic about from a national security standpoint, particularly because China doesn’t like to play fair, and will use tactics that include imprisonment and de facto hostage-taking in order to try and get their way in trade disputes.

Let’s hope that the opposition has a chance to listen to some of what Carvin has to say before they ask some more…dubious questions this week.

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Roundup: Space to socialize

Amidst the growing buzz of MPs’ bad behaviour, whether it’s ejections from the House of Commons during QP, or the allegations of inappropriate comments at events as with James Bezan and Sherry Romanado, Kady O’Malley says that the presence of cameras hasn’t been a guarantor of good behaviour. And that’s fair enough. So what does she propose? Not to do away with the cameras, particularly in the Chamber itself, but rather creating the conditions by which MPs can spend more time together outside of the strictly partisan work situations.

More to the point, O’Malley suggests that MPs start sharing meal breaks, whether it’s in the cafeteria, or has been proposed earlier this session with a common space behind the Commons chamber where they can eat together rather than having the usual food services delivered to their respective lobbies on either side of the Chamber. It’s not a novel idea, given the fact that it was shared meals used to be a feature of how our parliament operated. Evening sittings happened three nights a week, and at the appointed hour, they would suspend debate, head upstairs to the Parliamentary Restaurant for a couple of hours and there was cross-pollination of socializing between the different parties. And lo and behold, when evening sittings were abolished in the name of being “family friendly,” collegiality between MPs took a hit.

The problem with simply creating a space behind the Commons for MPs to have that meal together is that it’s pretty much restricted to those who are stuck with House Duty, so the numbers at any given time would be pretty small, and I’m not sure that it’s enough to get a big the requisite sea change happening. Maybe the answer is to bring back evening sittings – it’s not like there’s a lack of legislation that could use the added time – but even there, part of what kept MPs at the parliamentary restaurant is that there was a dearth of other options in the area, which isn’t the case any longer. So while I don’t dispute that more opportunities for MPs to socialize is a good and necessary thing, I’m not sure that the conditions to make this a broader issue are really there any longer.

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Roundup: Embattled ministers sticking it out

With three cabinet ministers currently “embattled” (to various degrees), Aaron Wherry wondered about the drop-off in actual ministerial resignations, and found the comparison to the days of Brian Mulroney, who was far quicker to accept resignations than is customary these days. Mulroney came to regret this, mind you, but it can’t be denied that the demands for resignations have never left us, and in fact are pretty rote performance by this point. That the Conservatives made their demand for Bill Morneau’s resignation without any real damning evidence as to why it’s necessary has made it seem as unserious as it actually is, making it harder for them in the future to make a legitimate demand.

But with that having been said, I’m going to say that there’s something that Wherry has left out in his analysis, which is the way in which Cabinets are constructed is a different calculation now than it was in Mulroney’s day, and that matters. Back then, the dominant concern was federal construction, so while you had to ensure that you had enough ministers from certain regions, and some token diversity in terms of religious or cultural background, with a woman or two in the mix, it was easier to swap out white men for one another when it came to accepting resignations and replacing them. That’s not really the case right now. Trudeau’s pledge for a gender-balanced cabinet that is also regionally representative as well as diverse in terms of race and ethnicity means that there are far fewer options for replacing ministers when it comes time to either accepting resignations, or swapping them out for fresh blood. What that ends up doing is creating an incentive for a prime minister to stick by an “embattled” minister (though I’m not sure just how serious any of the allegations against any of the current ministers really is – the attacks against Morneau are largely baseless, while Lebouthillier has done her due diligence with regard to the AG’s report and has technically been correct in what she’s said regarding the disability tax credit; Hehr, meanwhile, has been chagrinned but I’m not sure there is a cardinal sin here in the grand scheme of things). Sure, there will be a few tough days in the media, but eventually, when there turns out to be nothing to what is being said, the storm passes. It passed with Harjit Sajjan and Maryam Monsef (who was given a promotion for sticking with the flaming bag of dog excrement that was the electoral reform file), and I’m pretty sure it’ll pass for the current three. Until Parliament itself is more diverse than it is now, the demands for a representative Cabinet means that there are fewer options available for a Prime Minister to accept a resignation. What it does mean, however, is that they need to get a bit better around communications and managing the issues that do come up, but also seems to be a recurring theme with this government.

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Roundup: A revealing confession

When I saw the initial tweet, I can’t tell you how hard my eyes rolled, precisely because this sort of shtick is David Akin’s specialty – asking non-sequitur questions at inappropriate moments to try and generate a different headline, oftentimes to manufacture outrage (and oftentimes to the detriment of other reporters who had serious questions to ask when questions were limited). And some of the reactions to said tweet were pretty great too.

But reading Trudeau’s response, it was a bit of a warning klaxon for me, because of how this has been quietly playing out over the course of the past couple of years in the ways that Trudeau and his government has been trying to “reform” the way that business happens in the House of Commons – you know, to “modernize” the way that it functions.

…As we look at electoral structures, which is one of the questions that was specifically asked, we’ve had a certain level of discussions around electoral and democratic reform in Canada that leave me looking to the mother of all parliaments. Obviously, the U.K. does a significantly better job than us in programming legislation and getting that through the House. I think there is issue to admire on that. On the other hand, we were glad to adopt the prime minister’s question period model from the U.K. I think there’s lots to draw on when you look at our democratic structures from the mother of all parliaments.

The two key takeaways there are programming legislation, and prime minister’s questions. This isn’t the first time that programming motions have come up – back in the spring, the opposition filibustered the government over a proposal to include programming motions as part of Bardish Chagger’s “discussion paper” on suggested changes to procedure, and it seems that Trudeau hasn’t given up on the notion. I know that some people like programming motions because it helps create more orderly debates, and helps to move legislation though the chamber a lot more swiftly. But that’s partially why I’m not a huge fan of it, because creates the default assumption that the Commons is there to process legislation instead of holding government to account. Granted, we’ve gotten a bit dysfunctional in our parliament because opposition parties (and the NDP in particular) have an inability to let debate collapse in a reasonable timeframe which brings up the need for time allocation, and programming motions are just that – time allocation for all stages of a debate as it gets tabled. We should be trying to get parliament back to a better state of debate rather than resorting to programming, because that will help snuff out what little life remains in our parliament – it will make the speeches that much more rote and pro forma rather than having a miniscule chance for actual debate. As for PMQs, Trudeau’s grand experiment with it here has not proven to be that illuminating, and has instead created a perverse incentive for the Conservatives to instead bombard him with the same question eleventy times than to use it productively, and even when backbenchers do ask varied questions, they get mere platitude responses rather than substantive ones. It’s not like the UK’s, and so I find Trudeau’s response to Akin far more dubious as a result.

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