Roundup: One bill passed, one deferred

After very little drama, the budget implementation bill passed the Senate, their tempers cooled overnight. Not that it was ever going to be a real constitutional crisis – blame some garden variety torque for that one, but this wasn’t a meek climb down. The Senate did launch one final jab at the Commons, reminding them that while they are passing the budget bill this time, they nevertheless have the authority to amend or veto budget bills if they so choose – a pointed rebuke to the provocative boilerplate language of the Commons’ rejection of their amendments.

This having been said, what the Senate didn’t do was pass Bill S-3, which aims to remove certain types of discrimination from the Indian Act. The Senate amended the bill to remove all of the discrimination, while the Commons nixed said amendments, and the Senate was more willing to dig their heels in this one. By deferring debate and votes on this until September, it puts the government into a particular legal bind because they were under a court deadline of July 3rd to pass this bill in order to comply with a court order. This didn’t happen, and one suspects that it’s because the senators at the centre of this want to put more pressure on the government to accept their amendments and remove that discrimination.

Meanwhile, Dylan Robertson got a copy of the court decision that refused to extend the timeline for the government.

We shall see what the government’s next move is. I suspect it will be another court extension, but whether the summer to think over the amendments in light of the judge’s ruling may prompt a change of heart. Maybe. Time will tell.

Continue reading

Roundup: Provocative boilerplate

The House of Commons has risen for the summer, but how long it stays risen could be the big question as the Senate has two bills on its plate that they could send back to the Commons. The first of those is the budget implementation bill, after the Commons rejected their amendment. What inflamed tensions however was the boilerplate language that it was rejected for infringing on the rights and privileges of the Commons.

The fact that this is boilerplate eluded many Senators (and yours truly), given that it seemed to be yet another provocation given some of the underlying tensions in the current dispute. Yes, the language comes from Section 80(1) of the Standing Orders, but given that the Senate is trying to assert its independence and authority, the words seemed particularly targeted in this instance, especially as the Prime Minister rather dubiously claimed that the Senate has no ability to amend or reject budget bills when their only actual limitation is that they can’t initiate them.

Having received this rejection, the Senate decided to leave it overnight to think it over, and with luck, tempers will cool and they’ll get the better sense that this is boilerplate straight from the appendix of Beauchesne’s Parliamentary Rules and Forms, 5th edition, that that it likely wasn’t meant as a slight or a provocation. (Probably. But given how ham-fisted and tone-deaf the House Leader has a tendency of being, this isn’t a guarantee). It’s possible that cooler heads will prevail and they will defer rather than letting it ping-pong.

The more contentious bill may in fact be Bill S-3, which amends the Indian Act to remove gender-based discrimination, but the Commons rejected the Senate amendments that would eliminate other forms of discrimination. This particular bill may wind up being more problematic because it’s not a money bill and there is a bigger point of principle about discrimination and rights which a lot of senators get very exercised about (rightfully), and Indigenous senators in this case are particularly sensitive to. There have been suggestions that some are proposing a conference between the chambers to resolve the potential impasse, but we are not there yet.

Part of the calculation is that because the Commons has risen, a game of chicken is now being declared, where they are essentially daring senators not to recall them to deal with these amendments, and like Peter Harder has been doing, there will be all kinds of voices going on about the expense of such a recall. I think it’s overblown, but it wouldn’t be the first time that the Commons has used such a tactic to try and force the Senate’s hand into backing down on passing bills at the end of the sitting.

Continue reading

Roundup: Amendment and attempted intimidation

As the spring sitting of Parliament draws to a close, and the Commons is getting tired and cranky as MPs are restlessly looking to get back to their ridings, all eyes are on the Senate to see if they’ll pass the budget bill unamended so that MPs can leave, or if they’ll be forced to stick around to deal with delays. It looks like the latter is going to happen after the Senate voted to adopt changes made at the committee that would remove the automatic escalator on beer and wine taxes. (There is some debate around this – while on the one hand there is the argument that increases won’t be scrutinized in future years by Parliament, there is also a reminder that the indexation fight was settled years ago).

So while this means that the Commons wasn’t able to rise last night, and may have to stick around until Thursday, depending on whether or not they pass it at Third Reading tonight, and how fast it takes the Commons to turn around a vote on accepting or rejecting (almost certainly the latter) the amendment.

But that’s not the only curious part of this tale. Apparently when the vote was about to happen, all manner of Liberal MPs and ministers arrived in the Senate to watch the vote happen – but not in the gallery. No, they were instead on the floor of the Senate, behind the bar at the entrance.

While this attempt at intimidation is quite unseemly in and of itself, I’ve also been hearing complaints that Senator Peter Harder, the Leader of the Government in the Senate – err, “government representative,” is admonishing senators not to amend bills this late in the game because recalling the House of Commons to pass or reject those amendments “is expensive.”

I. Can’t. Even.

Telling Senators not to do their constitutional duties of reviewing and amending legislation because it might inconvenience a few MPs is gob-smacking in and of itself, but couching it in dollar terms is beyond the pale. Apparently, we can only have parliamentary democracy if it’s done on the cheap. Why have oversight or hold the government to account if it’s going to cost any additional dollars? I guess we might as well pack it all in and roll over for the government – costs too much otherwise. Sweet Rhea mother of Zeus…

Update: It seems there were some Conservatives there as well.

Continue reading

Roundup: Demanding ATIP perfection may be the enemy of the good

I find myself torn about the government announcement on new legislation to amend the Access to Information Act because on the whole, they made most of the changes that they promised to, but they failed to uphold one promise, which was to make the Act apply to the PMO and minister’s offices. And yes, We The Media let them know how displeased we were about it.

Part of the problem here is that like so many of their other election promises, it may have been a stupid one – kind of like their promise around electoral reform. Why? Because it was always going to be problematic to promise access to cabinet documents, and there’s a very good reason for that, because much of that information should remain private because it will otherwise damage the ability for there to be unfettered advice to ministers or between cabinet colleagues, and they need to have space to make these kinds of deliberations, otherwise the whole machinery of government starts to fall apart.

Like Philippe Lagassé says, the better discussion would have been to have specific proposals as to what falls under cabinet confidence. Currently the Information Commissioner has some determination around that, and with the changes in this bill, the onus will be reversed – the government will need to convince her (and if that fails, the courts) that information should remain secret, as opposed to her having to take the government to court to get that access. That’s significant.

There is a lot of good in these changes, but I fear that it will be lost amidst the grumbling that it didn’t go far enough. And let’s face it – sometimes We The Media are our own worst enemies when we use Access requests for cheap outrage stories rather than meaningful accountability, and then wonder why the government suddenly clamps down and turns to message control, and worst of all, nobody wants to talk about that problem. That may wind up making things worse for everyone in the end.

Continue reading

Roundup: A swiftly-moving “stalled” bill

An odd narrative has been developing over the past few days about the budget implementation bill being “stuck” in the Senate, and that senators there are “holding it up” as the sitting days in the Commons tick down. And I’m really not sure where this impression comes from because the bill has only been there since Tuesday.

Quite literally, the bill was passed in the Commons on Monday, read in at First Reading in the Senate on Tuesday, passed Second Reading on Wednesday, and had the minister appear at committee on Thursday, and it was later that day that the motion to split the bill was voted on. (The Senate didn’t sit on Friday, for the record). If anyone can please explain how this is “holding it up” or “stuck,” I’m frightfully curious as to how exactly it works.

Justin Trudeau, meanwhile, went on The West Block yesterday and reiterated his praise for the Senate’s work and saying that he expected that this particular attempt to “alter” the budget bill is just “growing pains.” Err, except by altering, they are simply trying to split one section out so that it gets further study, so that the rest of the budgetary elements can get passed, while the section that does need further study gets it. That’s not exactly a major alteration, and they’re not looking to kill that section of it either – just ensure that it’s going to work like it’s supposed to. But then Trudeau insisted that it’s a well-established practice that the Senate always defer to the Commons on money bills.

The hell it is. Constitutionally, the Senate can’t initiate money bills, but that doesn’t mean they simply defer on all of them. Hell, the very first bill they passed in the current parliament were the Supplementary Estimates (which is a money bill), and lo, they had to send it back to the Commons because they forgot to attach a crucial financial schedule to it. Should they have deferred to that flaw? Yes, the Commons is the confidence chamber, and the chamber of “democratic legitimacy,” but Trudeau is conflating a number of different things here, and it’s a bit disappointing because he should know better.

And I will remind everyone that this current Senate, no matter how many bills it sending back with amendments, is still nowhere near as “activist” as the Senate was in the Mulroney days, where they forced him to an election over the free trade agreement and to use the constitutional emergency powers to appoint an additional eight senators in order for him to get the GST passed. The current iteration of the chamber, while they are sending more bills back with amendments, will inevitably defer. That the government is accepting many of those amendments shows that perhaps *gasp!* it was flawed legislation to begin with (not that the Harper government using its illegitimate whip over their senators to pass bills made them any better, because their court record shows they weren’t).

But if we could have fewer terribly media headlines putting forward a patently false narrative about what’s going on in the Senate right now, that would be grand.

Continue reading

Roundup: Trudeau laying in the Senate bed he made

There is a renewed round of wailing and gnashing of teeth about the Senate feeling it oats and flexing its muscles, and yesterday it was the Prime Minister doing it. Apparently deliberating and amending bills is fine unless it’s a budget bill, in which case it’s a no go. The problem with that is that of course is that a) there is no constitutional basis for that position, and b) if the whole point of Parliament is to hold the government to account by means of controlling supply (meaning the public purse), then telling one of the chambers that it actually can’t do that is pretty much an existential betrayal. So there’s that.

But part of this is not so much about the actual issue of splitting out the Infrastructure Bank from the budget bill – which Senator Pratte, who is leading this charge, actually supports. Part of the problem is the principle that the Senate isn’t about to let the Commons push it around and tell them what they can and can’t do – that’s not the Commons’ job either. As Kady O’Malley delves into here, the principle has driven the vote (as has the Conservatives doing their level best to oppose, full stop). But some very good points were raised about the principle of money bills in the Senate, and while they can’t initiate them, that’s their only restriction, and they want to defend that principle so that there’s no precent of them backing down on that, and that’s actually important in a parliamentary context.

As for this problem of Trudeau now ruing the independent Senate that he created, well, he gets to lie in the bed that he made. That said, even as much as certain commenters are clutching their pearls about how terrible it is that the Senate is doing their constitutional duties of amending legislation and sending it back, it’s their job. They haven’t substituted their judgment for those of MPs and killed any government bills outright and have pretty much always backed down when the Commons has rejected any of their amendments, and that matters. But it’s also not the most activist that the Senate has ever been, and someone may want to look to the Eighties for when they were really flexing their muscles, enough so that Mulroney had to use the emergency constitutional powers to add an extra eight senators to the Chamber in order to pass the GST – which was a money bill. So perhaps those pearl-clutchers should actually grab a bit of perspective and go lie down on their fainting couch for a while.

On the subject of the Senate, it’s being blamed for why the government hasn’t passed as many bills in its first 18 months as the Harper government had. Apart from the fact that the analysis doesn’t actually look at the kinds of bills that were passed (because that matters), the reason why things tend to be slow in the Senate is because the Government Leader – err, “representative” – Senator Peter Harder isn’t doing his job and negotiating with the other caucuses and groups to have an agenda and move things through. That’s a pretty big deal that nobody wants to talk about.

Continue reading

Roundup: The disingenuous framing of a committee report

As you may have heard, the Heritage Committee released their long-awaited study on suggested ways to help the local media landscape in Canada. And I’m not here to talk about that, however, but rather how the narrative got completely spun into “Netflix tax!” or “Internet tax!” which wasn’t exactly what they were proposing either. Still, it became a convenient cudgel by which to try and bash the government with.

And that’s the bigger problem with this whole affair – that a committee report is being used to paint the government when it’s backbenchers who are on the committee. That separation between government (meaning Cabinet) and a committee of the legislature is important, and conflating the two is being wilfully disingenuous and makes the problem of not understanding how our parliament works even worse.

Paul and Aaron both have some very valid points. When the opposition frames it as “Netflix tax!” it’s sadly how most media will report it as well, and I didn’t see a lot of corrections going on about what the report actually said, and that’s a problem. But Aaron also has the point about how the media loves to jump on differences of opinion in parties, but when the parties themselves frame the issue, the media often gets swept up in those narratives.

Remember when there were those Conservative backbenchers trying to float some backdoor abortion legislation or motions that the government distanced themselves from but the NDP screamed bloody murder about hidden agendas and so on? This is not far from the same thing. And they know they’re being disingenuous, but they’re doing it anyway, no matter how much they’re actually damaging the perceptions of the institution.

That said, I could be really mean and point out that it may be hard for the Conservatives to tell the difference between backbenchers on a committee and the government seeing as during their decade in office, they essentially turned the committees into branch plants of the ministers’ offices with parliamentary secretaries ringleading the show and completely destroying their independence…but maybe I won’t.

Continue reading

Roundup: A wake-up call on court complacency

The Senate’s legal and constitutional affairs committee released their report on judicial delays yesterday, and while I haven’t made it through the whole report yet, I will say that the highlights are pretty eye-opening.

While you may think that the issue of judicial vacancies is top of mind, it’s actually the culture of complacency that has infected the court system, with inefficient processes, poor case management, an unwillingness by some judges to take their peers to task for granting repeated adjournments, and the list goes on. Yes, judicial vacancies are in there, and this government has excelled in delays for all manner of appointments (witness the backlog of nominations for Officers of Parliament, for example). It’s part of what the Supreme Court of Canada was hoping to get at with the Jordan decision (and may refine that somewhat more with the upcoming decision on Friday), but it’s clear that a lot of processes need to change.

I know there has been some work done, and I’ve written a bit about things like the move to do more summary judgments in some cases rather than going to full trial, and it can work. I just wrote a story last week where it did, and the biggest delay in the case was getting an actual hearing date. But some of the bigger problems remain structural, with things like inadequate mental health services that wind up processing these people through the courts rather than getting them proper treatment, or not having culturally appropriate services for Indigenous offenders which would do more to address their concerns and keep them from recidivism rather than keeping them cycling through the system (or out of jail entirely). Things like legal aid funding are also important to the smooth operation of the system, but one has to wonder if it’s not just giving the court system more resources, but also better drafting laws so that we deal with crime in a better way rather than just trying to look tough on the issues.

Anyway, what I’ve read so far looks good and resonates with what I’ve heard in my own justice reporting, so maybe, just maybe, this government can take some of the recommendations seriously and not just thank them, promise to consult further, and put it on a shelf.

(Incidentally, Christie Blatchford, who covers a lot of trials, is full of praise for the report).

Continue reading

Roundup: The looming retirement of the Chief Justice

Chief Justice Beverley McLachlin announced yesterday that she would be retiring on December 15th, a few months in advance of her mandatory retirement date, in order to give the government enough time to find a suitable replacement. Why that date is significant is because it will be at the end of the Court’s fall sitting, letting her use the next six months that she is able to clear off the files from her desk and work on any outstanding judgments rather than depart mid-sitting and the organizational chaos that would follow.

The next steps are now an important consideration. The government will not only have to name a new Chief Justice, but a new judge from Western Canada (and likely BC given that’s where McLachlin was appointed from). And in order to keep gender balance on the court it will likely have to be a woman, and in accordance with this government’s push for diversity, it will likely be a person of colour, if not someone Indigenous (and let us not forget that said person must also be fluently bilingual, which is another self-imposed criteria that this government has made for itself). This may be easier to find in BC than it was in Atlantic Canada, mind you. And for Chief Justice? My money is on Justice Richard Wagner, whom I know many close the court have already tapped as being the successor if they had their druthers.

Of course, we’ll see if this government can get an appointment process back up and running within the six months. Experience has shown us that they seem to have difficulty with that, especially as there are still some sixty or so federally appointed judicial vacancies still remaining around the country, and a few of the Judicial Advisory Committees charged with finding candidates for said vacancies still not fully appointed either, which is a problem. Of course, they may be able to largely reconstitute the committee that oversaw the nomination of Justice Rowe, with Kim Campbell again in charge of the process, but I guess we’ll see how long that takes.

For more reaction, here’s Emmett Macfarlane on As It Happens and in the Ottawa Citizen, and Carissima Mathen on Power Play.

Continue reading

Roundup: NDP catch the Corbynite smugness

It was a bit odd, yesterday, watching NDP MP Erin Weir stand up before Question Period to offer congratulations to UK Labour leader Jeremy Corbyn on his “success” during this week’s election, considering that Corbyn lost. Weir considered it an inspiration to their own leadership candidates, each of whom also offered variations thereof over social media. (Andrew Scheer, for the record, also tweeted encouragement to Theresa May for “strong stable leadership” – a veritable echo of Stephen Harper’s 2011 campaign slogan – only to see May’s fortunes crumble).

Of course, this NDP praise of Corbyn ignores the context in which he “won” (by which we mean lost) this week, and that was that Labour’s share of the vote and seat count went up in spite of Corbyn’s leadership and not because of it. Why? Because he’s been an absolute disaster as a party leader, and an even bigger disaster as opposition leader, and in many instances couldn’t even be bothered to do his job in trying to hold the government to account on matters of supply – an appalling dereliction of duty. And this is without getting into Corbyn’s record of being a terrorist sympathizer, someone who took money from Iran’s propaganda networks and whose activist base has a disturbing tendency to anti-Semitism.

Nevertheless, this “success” of Corbyn’s (and by “success” we mean he lost), Twitter was full of mystifying smugness from hard left-wing types, insisting that it meant that Bernie Sanders would have won the general election (never mind that he couldn’t even win the primaries). Yes, the fact that Corbyn managed to motivate the youth vote is something that will need study in the weeks to come, I’m not sure that we can discount the fact that there is a certain naïveté with the youth response to his manifesto promises that was full of holes, and there was a youth response to Sanders as well, which some have attributed to the “authenticity” of his being a political survivor. Can this translate into a mass movement? I have my doubts.

The smugness around his “win” (which, was in fact a loss) however, is a bit reminiscent of the NDP in 2011 when they “won” Official Opposition, and were similarly smug beyond all comprehension about it (so much so that they were going out of their way to break traditions and conventions around things like office spaces in the Centre Block to rub the Liberals’ noses in it). That we’re seeing more of this smugness around a loss make a return is yet another curiosity that I’m not sure I will ever understand.

This all having been said, here’s Colby Cosh talking about what lessons the UK election may have for Canada, including the desire to export brand-Corbyn globally.

Continue reading