Roundup: Procedural shenanigans beget the new anthem

There has been some drama in the Senate over the past couple of days as the procedural shenanigans to bring the national anthem bill to a final vote culminated in a motion to call the vote, and eventually that happened. The bill has passed, and the new national anthem will be law once the Governor General gives it royal assent. But the procedural moves have the Conservatives in a high dudgeon, somewhat legitimately.

My understanding of events was that the main motion to call the vote has been on the Order Paper for months, and was finally called Tuesday night. This was a debatable motion, and likely would have sparked a few weeks of adjournments and debate, but ultimately would have delayed the vote for only that long. But a second, also legitimate procedural move was used by another Independent senator immediately following, and Speaker apparently didn’t hear Senator Don Plett’s desire to debate it. What I’ve been able to gather is that this was likely a mistake given lines of sight, but were compounded by tactical errors on the Conservatives’ part in demanding to debate the first motion and not the second (or something to that effect). Points order were debated last night, but they had agreed to end the sitting at 4 PM in order to have the votes at 5:30, and when they didn’t get unanimous consent to extend the sitting, debate collapsed and when 5:30 rolled around, the Conservatives boycotted the vote in protest. According to those I’ve consulted, the moves were all legitimate but messy, and have the danger of setting up bad precedent for not allowing debate on this kind of motion.

The Conservatives in the Senate, meanwhile, are caterwauling that their democratic rights have been taken away, and there is talk about conspiracy between Mélanie Joly’s staff, and other threads that are hard to track when they’re throwing them against the wall like spaghetti. And while I share the concerns about bad precedent, I can’t say that I have too much sympathy because they’ve used (and one could argue abused) procedure for over a year to keep the bill at Third Reading, with the intent to ultimately delay it until it died on the Order Paper. They insist that they offered the chance to amend it to the more grammatically correct “thou dost in us command” rather than the clunky “in all of us command,” but I find it a bit disingenuous, because it was simply another delay tactic. And I’ve argued before that this continued tendency to use procedural tactics to delay bills is going to end up biting them in the ass, especially because it plays into Senator Peter Harder’s hands in his quest to overhaul the chamber in order to strip it of its Westminster character. The Conservatives are overplaying their hand, and it’s going to make it very difficult to drum up enough legitimate concern to stop Harder when crunch time comes, and they should be very aware of that fact.

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QP: Bardish Chagger, ad nauseam

While the prime minister was off to Winnipeg, the desks in the Chamber were full, MPs ready for another scintillating round of accountability. Or talking points at the very least. Andrew Scheer led off, mini-lectern on desk, and today decided to use the moving expenses of senior PMO staff as his cudgel to demand the PM repay his expenses for that infamous vacation. Bardish Chagger reminded him that the PM accepted the report, took responsibility, and made changes going forward. Scheer switched to English to try again, getting breathy in his punctuation, and Chagger reiterated her response. Scheer insisted that an apology is no good without an attempt to make amends — apparently financially — but got the same response. Lisa Raitt was up next to assert that there were no recommendations in the report, just facts and an assertion of guilt, before she too demanded repayment. Chagger reiterated her points, including stating that he accepted recommendations. Raitt tried a second time more forcefully, and Chagger spelled out that the recommendations came from the former Commissioner at committee. Ruth Ellen Brosseau led for the NDP, demanding to know what the government was doing to get more women elected. Karina Gould said that they were doing more recruit more women, and wanted to ensure that they could thrive once elected. Brosseau tried again in French, got the same answer, and Karine Trudel and Shiela Malcolmson demanded pay equity legislation in both French and English. Scott Brison said they were working with the public sector unions and other unions on the topic, and that they remained committed to a proactive pay equity system.

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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: 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: Morneau cleared – mostly

On her way out the door, now-former Ethics Commissioner Mary Dawson released a statement saying that there was no ethics issue or conflicts of interest with Bill Morneau’s share sales, which blows the hysterical arguments about “insider trading” out of the water. As well they should be – these claims were never serious to begin with, and were part of the attempt to throw everything at the wall in the hopes that something, anything, would stick. This of course leaves the “investigation” into Morneau introducing Bill C-27 on pension reform while he still indirectly held those Morneau Shepell shares, and the opposition are still waving their hands around this and trying to insist that this is some kind of Major Ethical Issue, never mind that the allegations themselves depend on a fundamental misunderstanding with how ministers sponsor bills, and ignoring the fact that clearing bills with the Ethics Commissioner before they are tabled would be a violation of cabinet confidence and parliamentary privilege. But hey, we’ve already established that we don’t need plausibility or facts to get in the way of laying allegations – it’s simply about trying to build a “narrative” by whatever means necessary.

Meanwhile in Maclean’s, Paul Wells has a lengthy interview with Morneau about how his last six months have gone, and it’s a good read. The major takeaway in all of this is that Morneau and the cabinet got complacent after a string of successes, where they managed to get some pretty big wins despite initial grumbles from provinces around things CPP reform or healthcare premiums. The fact that they shopped those planned changes to private corporation tax rules several times and got no pushback meant that they let their guards down, and then with a combination of misrepresentation around what those changes were, and reporting that didn’t question those narratives, Morneau wound up blindsided, which was compounded by his dislike of being scrappy enough to respond to allegations and mistruths forcefully. One hopes that he’ll have learned his political lessons and that he’ll start stepping up a little sooner – and communicating better – but time will tell.

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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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Roundup: Will American tax changes affect us?

With the excitement building over that coming US tax cut legislation (if one can call it that), we have already started seeing reaction here in Canada about how we should react, and while there has been some predictable demands that we start cutting our own corporate taxes yet again, others have called for a more pragmatic approach. In the Financial Post, Jack Mintz foretold doom for our economy in the face of these changes. With that in mind, Kevin Milligan tweeted out some thoughts:

It also hasn’t gone unnoticed that these changes will create all manner of new loopholes around personal incorporation to avoid paying income taxes – kind of like Canada has been cracking down on this past year. Imagine that.

To that end, Milligan offered a few more thoughts about the experience around implementing these kinds of changes.

Meanwhile, my Loonie Politics column looks at whether the process used by that American tax bill could happen in Canada. Short answer: no.

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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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QP: One last go at the PM

On what promises to be the final sitting day of 2017, all of the leaders were present, and duelling Christmas poems by Mark Strahl and Rodger Cuzner, things got underway. While some of Strahl’s lines raised eyebrows (particularly the line about Scheer’s virility), Cuzner’s annual poem didn’t disappoint.

Andrew Scheer led off, railing about the “devastating” small business tax changes. Justin Trudeau reminded him that small business taxes were being lowered, and restricting income sprinkling was about ensuring that people couldn’t take advantage of loopholes. Scheer insisted that the changes spelled doom, and Trudeau responded that the opposition had become so partisan that they treated a small business tax cut as a bad thing. Scheer listed off the supposed ways in which the government has apparently attacked taxpayers, but Trudeau insisted that they were doing everything to grow the middle class, and noted how many jobs had been created. Scheer pivoted mid-retort to decry Trudeau’s “erratic behaviour” on the trade file, to which Trudeau reminded him that they weren’t going to sign any deal, but only wanted good deals for Canada. Scheer was concerned that Trudeau was endangering the NAFTA talks, to which Trudeau reminded him that capitulation was not a trade strategy. Guy Caron was up next to bay about the nomination process for the new Ethics Commissioner, and Trudeau noted that they started engaging the opposition for criteria of this process last June, and if they didn’t have confidence, they should say so. Caron insisted that their dispute was with the process not the candidate, and that they couldn’t trust a process where the committee was dominated by cabinet staff. Trudeau responded with a defence of that process, with a slightly disappointed tone. Alexandre Boulerice was up next, and he railed that the Commissioner wouldn’t promise to carry on current investigations and insinuated that the government was trying to sweep everything under the rug. Trudeau insisted that the process was merit-based, and when Nathan Cullen got up to list the alleged ethical violations of the government, Trudeau responded with disappointment that the opposition was relying solely on personal attacks.

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