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: 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: 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: Oprah and the rot of populist politics

As a rule, I don’t really comment on American politics, but this issue of Americans clamouring for Oprah Winfrey to run for president in 2020 has been getting a lot of press lately. Colby Cosh runs through why it was probably a trial balloon that fortunately deflated, while Rachel Giese worries that the dismissal of the possibility amounts to more racism and sexism rather than dealing with some of Oprah’s ability to connect with people. And she does have that – I used to darkly muse that Oprah could almost certainly run for president and win because back when I worked in book stores during my undergrad years, and every time Oprah mentioned a book, we would be inundated with calls and demands for said tome. Early on we weren’t given advance notice, and it was a gong show, and after she alerted publishers beforehand and we were sent ample shipments of said volumes in time for the show to air, it was more manageable chaos, but it never failed to surprise me with how much she had an ability to influence the viewing public’s shopping choices, and made me wonder how far that power could be extended.

But the fascination with celebrities running for office is not new or novel, and is part of a sign of the deeper rot of populism within our political discourse. The distrust of the political class and career politicians has long been sown by populists, and Canada is no exception. Conservative MP Michelle Rempel penned her own op-ed to talk about this urge for celebrities to be political saviours, and outlined her own particular list of what it takes to make good political leaders (including a few subtle digs at Justin Trudeau in there, naturally), but while she talks about the disconnect that people have between their ability to examine government as its role in our lives has expanded exponentially over the past seventy years, she misses one key point – that Canadians aren’t taught how to engage with the system.

Because we aren’t taught anything other than the fact that you mark a ballot every three or four years, we don’t know how to nominate candidates that speak to our values or that better reflect the diversity in our communities. We don’t understand how the role of joining parties creates a relationship with the caucus because the party creates an interlocutor role between those who are serving in Parliament or in government and those on the ground. We aren’t taught how the act of joining parties entitles us to take part in policy discussions that shape where we want the party and the country to go. All of those are huge ways of engaging in our system of government, but we’re largely not taught them in school, which fuels the disconnect that people feel, which drives people to populists, whoever they may be. Because celebrities are comforting, familiar figures, people will flock to their siren calls, oblivious to the danger of smashing against the rocks they perch upon. It’s why we need proper civics education, so that we can combat the ignorance that fuels the willingness to entertain this celebrity nonsense.

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Roundup: No knockout punch from Dawson

As expected, former Ethics Commissioner Mary Dawson’s appearance at the Commons ethics committee yesterday was a show for the cameras. Throughout the hearing, opposition MPs kept trying to get Dawson to insist that it was a big deal that Prime Minister Justin Trudeau violated conflict of interest rules, and she kept rebuffing them, not giving them the clip that they were looking for. Because really, ever since former Auditor General Sheila Fraser remarked that the Liberals “broke every rule in the book” when it came to the Sponsorship Scandal, reporters and partisans have been trying desperately for another officer of parliament to give them a similar line (kind of like how everyone keeps looking for a “knockout punch” in a leadership debate that won’t ever come). Dawson also wouldn’t play ball when it came to the Conservatives trying to insist that the PM repay all of the costs of the vacation, and in fact seemed to defend some of them, so too bad for that attempted clip.

That’s not to say that there wasn’t some value in the exercise. For example, while the PM and Dawson will dispute the extent of Trudeau’s friendship with the Aga Khan for the purposes of the Act, had she agreed that they were close personal friends, Trudeau would have been found to have contravened the Act in another fashion when he sat in on two meetings related to the Aga Khan Foundation (even though she didn’t find that he unduly influenced those meetings based on his relationship). Nevertheless, the “friends” exception in the legislation was cause for some level of debate and indeed consternation among MPs, but it’s something that Dawson thinks they might as well just get rid of in the statute.

And amending the Act was part of the discussion as well, both with regard to closing loopholes, and the discussion on penalties. Regarding loopholes, Dawson said that she needed to interpret that Morneau was within his rights to indirectly hold his shares in holding companies because she had previously recommended that said loophole be closed (and, shockingly, MPs ignored the suggestion). If she suddenly interpreted the legislation differently, that would have been a problem, hence her need to apply the law in a consistent manner. Regarding penalties, Dawson said that she feels that naming and shaming political figures is punishment enough, which didn’t sit well with MPs who wanted a sliding scale of penalties to demonstrate the severity of the offence. (Andrew Coyne also advocates “meaningful penalties” but won’t say what qualifies). The problem with this, of course, is that it turns any violation into a political circus as MPs fall all over themselves to demand the stiffest possible penalties for their opponents in order to score points, ignoring that the whole exercise is one designed for political consequences, which Trudeau has and continues to face. The other aspect is that greater penalties also create the conception that these are criminal sanctions, which the opposition has already been exploiting with language about how Trudeau “broke federal laws” to give the impression that he has committed a criminal offence (which he has not). Changing the rules to encourage this kind of demagoguery doesn’t help our ethics system in the slightest, and would probably do far more harm than good in the interest of scoring a couple of cheap points.

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Roundup: Turning down the committee

It was pretty much as expected. The Commons ethics committee met yesterday and the opposition MPs assembled pleaded with the Liberal majority on the committee to think of the children – err, I mean, think about the meaning of holding the government to account when it came to the demand to call for the PM to appear to answer questions about the Ethics Commissioner’s findings regarding his vacation to the Aga Khan’s island. I will grant that the Liberals could have insisted that they go in camera for this, but didn’t. Rather, they simply said that, having read the report, and taking into account that the PM had apologised, answered questions in the media, and would be answering questions in QP on this topic, that it was enough. And so the motion was defeated 6-3, which surprised no one.

From the arguments presented, there is a little more that we could dig into. For example, Nathan Cullen said he wanted the PM’s suggestions on how to improve the rules – but if he cared about those, he would have taken the many suggestions that Mary Dawson has been making over the past decade and implemented those, but he, nor his party, nor any parliamentarian, has been keen to do that. And his worrying that the PM is ultimately accountable to parliament is true, but that ultimately means that if Cullen is so concerned, he can move a motion of non-confidence in the PM on the NDP’s next Supply Day and try to convince the Liberal ranks of the merits of his argument. As for the Conservatives, they seemed far more interested in seeing some grovelling the PM, and demanding that he repay the full cost of the trip (which would include the Challenger and security costs), never mind that during the Harper era, his “reimbursement” for his own private trips was supposed to be at economy fares, but nobody could find fares as low as the ones he was repaying (and there were several incidents of party stalwarts getting subsidized airfare improperly). And that whole incident nearly six years ago when they wanted Harper to appear to answer questions on the ClusterDuff Affair? Well, that was then and this is now, and Trudeau promised to be more open and transparent. (Err, remember when Stephen Harper rode into office on the white horse of accountability and transparency? Yeah, me neither).

And while opposition staffers chirp at my on the Twitter Machine about how it’s the role of MPs to hold the government to account – true – and that a committee setting is less theatrical than QP – not true – I will reiterate that the point of this exercise is not actually about accountability, but rather about gathering media clips under the protection of parliamentary privilege. If you think there would be sober questions asked, and that this would be a serious exercise in accountability, then you’re sorely mistaken. It remains a political calculus, and Trudeau has determined that it’s not worth it to spend an hour having the most torqued accusations hurled at him in the hopes that something sticks, and hoping for that “gold” clip that they can share around social media. If we’re going to lament the lack of accountability, then everyone needs to take a share of responsibility there – not just the PM.

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Roundup: Ethics committee theatre incoming

We can look forward to a heap of bad political theatre next week as the Commons’ ethics committee plans to sit on Tuesday and Wednesday in order to demand that the PM appear before them to answer questions in regards to the Ethics Commissioner’s report into his Xmas vacation with the Aga Khan, and to hear from the now-former Commissioner on the report the following day. And you can expect that it’s going to be nothing short of howls of sanctimonious indignation. Oh, and there may be legitimate procedural roadblocks to their plans given that the report hasn’t been presented to the Commons yet, according to a former Commons procedural clerk.

Regarding the demands that Trudeau appear, it would be highly unlikely that the Liberals on the committee will let that go ahead (and they have the votes to block it if necessary). And if the Conservatives cry foul, they can turn around and point to the fact that they blocked an attempt by the committee in the last Parliament to have Stephen Harper appear before them to answer questions related to the ClusterDuff Affair, and fair is fair, besides which, Trudeau has answered in Question Period and the media on this issue. And really, why would a PM expose himself to an hour of MPs trying to play Matlock, asking questions that are all traps designed to get him to incriminate himself, and then baying at the moon when he refuses to answer. It would be worse than the performances we see in Question Period these days (which are generally terrible), and we’d get the same quality of answers from Trudeau, which will be some fairly pat and trite lines unless they trip him up (which is the whole point).

Oh, one might say (and Althia Raj did on Power & Politics last night), if they want to show that this is really a new era of accountability and transparency, they it might be in their best interests to go ahead and have him go before the committee, to which I remind people what happened when Thomas Mulcair appeared before a committee to answer questions related to the satellite offices issue. Mulcair blustered, obfuscated, and then proffered a fiction that Conservatives did it too (they didn’t – the “evidence” was a riding office and a party office in the same mini-mall but several doors down from one another, but hey, they were on the same sign by the parking lot), and as he did so, all of his partisans flooded social media praising that “this is what accountability looks like.” I’m not really sure that this is the kind of thing we want to revisit.

As for Dawson’s appearance, it’s “as an individual” since she will be officially retired by then, and we can imagine that it will be much the same – each side fishing for a media clip that fits their established narrative, which they will then flood social media with – assuming that she can answer, given the procedural issue identified. And we can imagine how many questions about Bill Morneau will be asked, followed by the Liberals asking how many investigations she conducted on Conservative ministers, and on and on it will go. It won’t be a constructive use of anyone’s time, but why does that matter when you’ve got cheap political theatre to perform?

Speaking of Dawson, here’s her exit interview with the Globe and Mail in which she defends how much time she took to write that report, confirms that she didn’t discuss Bill C-27 with Morneau (never mind that doing so would violate cabinet confidence and cabinet secrecy – funny how the Globe continually ignores that fact), and defends the advice she gave to Morneau about a blind trust (“You know what the hell’s in there. That’s a defect on a blind trust”).

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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: Mary Dawson delivers a spanking

Outgoing Conflict of Interest and Ethics Commissioner Mary Dawson released her report on the Prime Minister’s vacation to the Bahamas and the Aga Khan’s private island there last Christmas, and she determined that he had indeed broken four sections of the code. Reaction was swift – Trudeau quickly called a press conference to apologise and try and to take full responsibility, but stumbled in some of his responses. And soon after, both Andrew Scheer and Jagmeet Singh called their own press conferences to condemn Trudeau and to rail about how out of touch he is, and so on.

First things first: The Canadian Press has five items of note from the report, and John Geddes offers three items of his own. Hay is being made – particularly from certain opposition politicians – that Trudeau is the first PM to have been found guilty of breaking these conflict of interest laws, but it’s worth bearing in mind that this current conflict of interest regime is only a decade old, and it’s not a lot of time for which there to be much to compare to. Aaron Wherry parses the report here, while Paul Wells offers his own bigger-picture look as to why this all matters.

This all having been said, I’m trying to digest the substance of the report, and some of it does rankle with me a bit, in particular the way in which Dawson parses how a friendship with someone like the Aga Khan should unfold, given the position that he holds. I also wonder if better context should have been applied to just what his Foundation’s dealings with the Canadian government are, because actual private interests aren’t being advanced here – nobody profits from this. A lot of what the Foundation does with Canadian aid money is do things like provide school books to Syrian refugees in camps in the Middle East, where they have the networks to deliver them. This isn’t nearly the same thing as accepting gifts from businessmen whose private interests and personal profits may rely on decisions made by the Canadian government, and I wonder if it’s helpful to treat those as being on an equal playing field. (Then again, maybe it is. I’m not an expert in this).

A couple of other thoughts – It is fair to ask why Trudeau and his team, who can be so focused on optics at times, were so blind to this one. But given that they’ve scored more than a few own-goals this last year with bad communications plans, that’s becoming clear that they’re not the masters at this that they sometimes appear to be. As for the lack of penalties in the Conflict of Interest legislation, we have to bear in mind that these are political actors that we are discussing, and merely naming and shaming them does have political consequences. If we got into games of demanding financial penalties or that public office holders be jailed for breaches, we change the political calculus of this ethics regime, and it would become an even bigger gong show than it is now, not to mention that it would make cooperation even less likely if they think there’s a jail sentence attached. And finally, there is a lot of smug sanctimony going around, but some caution had best be exercised, particularly by members of the opposition, when it comes to how the Aga Khan is portrayed in this. The Ismaili community already has their backs up over how he has been characterised to date, and those opposition parties could find themselves alienating an important voting bloc if they’re not careful.

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