Monthly Archives: July 2017

Roundup: Closing three loopholes

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As expected, Bill Morneau announced three new measures to crack down on tax avoidance by means of self-incorporation by high earners, many of them doctors and lawyers. While the government goes on a 75-day consultation period (to ensure that there are no unintended consequences) in order that the changes can be legislated in the autumn budget implementation bill, here’s economist Kevin Milligan explaining the problem and changes in detail here, plus his Twitter posts on the topic:

https://twitter.com/kevinmilligan/status/887347823657668608

https://twitter.com/kevinmilligan/status/887348810225143809

https://twitter.com/kevinmilligan/status/887349319413649409

https://twitter.com/kevinmilligan/status/887349919882690560

https://twitter.com/kevinmilligan/status/887350619886895104

https://twitter.com/kevinmilligan/status/887351395929661440

https://twitter.com/kevinmilligan/status/887352251777335296

https://twitter.com/kevinmilligan/status/887353356250992640

https://twitter.com/kevinmilligan/status/887354118846652416

https://twitter.com/kevinmilligan/status/887355324197330944

https://twitter.com/kevinmilligan/status/887356115033260032

https://twitter.com/kevinmilligan/status/887356608518291456

Morneau acknowledged that the changes may personally disadvantage him (though two of the three categories didn’t apply to him) – making it clear that he didn’t look into his own situation to ensure that he was being fair and not self-interested in making them.

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Roundup: Divisions of Power at the Council

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With the Council of the Federation meeting today in Edmonton, they had a pre-meeting yesterday with some Indigenous leaders – others having opted not to join because they objected to it being “segregated” from broader Council meeting. While I can certainly see their point that they want to be full partners at the table, I have to wonder if this isn’t problematic considering some of the issues that the Council has to deal with – NAFTA renegotiations, inter-provincial trade, marijuana regulations – things that don’t really concern First Nations but that premiers need to hammer out. Two groups did meet – the Congress of Aboriginal Peoples (which generally deals with off-reserve and urban Indigenous Canadians) and the Native Women’s Association of Canada, citing successful talks, while the Assembly of First Nations, Inuit Tapiriit Kanatami, and Métis National Council stayed out of it.

While I’m sympathetic to these Indigenous groups’ desire to have full-fledged meetings with premiers, I’m not sure that the Council is the best place to do it, because they’re not an order of government so much as they’re sovereign organisations that have treaty relationships. While some of their concerns overlap, they don’t have the same constitutional division of powers as the provinces, so a meeting to work on those areas of governance can quickly be sidelined when meetings stay on the topics where areas do overlap with Indigenous groups, like health or child welfare, while issues like interprovincial trade or harmonizing regulations would get left at the sidelines as they’re not areas in which Indigenous governments have any particular constitutional stake. And yes, we need more formalized meetings between Indigenous leaders and premiers, I’m not sure that simply adding them to the Council achieves that, whereas having separate meetings – as was supposed to happen yesterday – would seem to be the ideal forum where they can focus on issues that concern them. Of course, I could be entirely wrong on this and missing something important, but right now, I’m struggling to see how the division of powers aligns in a meaningful way.

Oh, and BC won’t be at the Council table as NDP leader John Horgan is being sworn in as premier today, even though he could have scheduled that date earlier so that he could attend (seeing as this meeting has been planned for months).

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Roundup: The fount of Canadian honours

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A particular thread that I forgot to talk about last week was about the new GG, and one of the important things that the office does, which is to be the conduit by which the country’s honours system works. It’s a pretty important function of the office which has been encroached upon my MPs and in particular the Prime Minister in recent years, and yes, that is a problem.

https://twitter.com/pmlagasse/status/885683651928887296

https://twitter.com/pmlagasse/status/885684376922488832

https://twitter.com/pmlagasse/status/885684989228134405

https://twitter.com/pmlagasse/status/885686006023950336

The Queen is the fount of honours in Canada, but politicians have been trying to get in on the game. Stephen Harper created a “teaching award,” and Trudeau has been talking about creating some kind of medal on his own as well, while there have been partisan spats about the Thérèse Casgraine award, or the John Diefenbaker award, and whichever party in power “forgetting” to award it, and on it goes. But part of leaving those kinds of decisions up to Rideau Hall is that it keeps the awards from taking on a partisan taint. With the Prime Minister’s Awards for Teaching Excellence, there was a lot of difficulty getting nominees under Harper because many people didn’t want to be associated with him, which is a fair point – the award should be politics-neutral, but associating it with the head of government as opposed to the Queen means not only that there’s a whiff of partisanship, but that the PM would use the awards as a bit of reflected glory. That’s generally something we try to avoid in our system, which is also why we ensure that it’s not the prime minister’s face on postage stamps or first in line in our embassies, but rather the Queen. It’s why the civil service swears their oaths to the Crown and not the government of the day as well – because we keep them above the partisanship of the day, and it keeps them from developing cults of personality (as much as is possible, but the age of celebrity politics is certainly challenging this notion). Suffice to say, we should be aware that the duties of honours rests with the Crown and with the GG for a reason, and we should frown on more attempts by politicians to horn in on them.

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Roundup: A Northern SCC justice?

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The government announced yesterday that they have begun the process for searching for the next Supreme Court of Canada justice, which it should be noted is almost record-breaking in how fast they got this particular process started, as normally it takes them six months to a year to get a process even started, by which time the vacancy has happened and terms need to be extended (which isn’t possible in this case). And while this is notable in and of itself, there was something else notable – that they are explicitly looking for a justice from either the West or the North.

Why this is important is because it seems to demonstrate that they learned their lesson from the previous SCC appointment process, when they toyed with finding a justice who was not from Atlantic Canada despite it being a traditionally Atlantic Canadian seat that was vacant, and there was some pretty big uproar which they tried to pooh-pooh with talking points about how some of those federalist notions were perhaps a bit archaic and they were trying to find a bilingual justice (which was difficult for that region, even more so if they were trying to find someone Indigenous or a person of colour). That will be less of a problem in the West, but the fact that they also mentioned the North is a bit curious.

As it stands, some territorial cases, particularly at the appeal level, are heard in courts in provinces like BC or sometimes Ontario, because there simply aren’t enough judges and infrastructure in place to do the job up North. And while it’s not necessary that one be a judge to get a Supreme Court nomination (they must be a member of the bar, but can come from private practice or even a law school), it is a bit peculiar that they have expanded their search in such a way. It is the first time that such a consideration has been made, which is no doubt part of this government’s constant attempts to pat themselves on the back, and their language about the “custom of regional representation” still sounds a bit like they’re making it out to be less of an important deal than it is, which is a problem because the principles of federalism are a pretty big deal given how this country works. I would say that it also raises the possibility of raising hackles in the West because it could open them up to accusations that they’re depriving the West of representation on the Court (the West typically has two seats, one of which is currently held by Justice Brown from Alberta, so no, Alberta has no room to raise a fuss), but one could imagine that BC would very well make an issue of it if they felt like it. Granted, if they do find someone from the North, it could provide some greater perspective on the Court – or it could simply be yet another reason for back-patting. We’ll find out in a few months’ time when the decision is made. (And for the record, the plan is to name the new Chief Justice after the vacancy is filled).

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Roundup: A lack of scrutiny

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While again noting that I don’t often write about provincial matters, sometimes they can be a microcosm or a vanguard of broader themes happening in different legislatures across the country, including the federal parliament, and this item out of Queen’s Park raises alarm bells because it is a telling sign. The province’s Financial Accountability Office – the provincial equivalent of the Parliamentary Budget Officer – tabled his annual report that essentially states that there’s not enough scrutiny happening within the legislature. And yes, that’s a very big problem.

While I am a bit surprised that his office is being underutilized, the fact that backbenchers aren’t doing the work of scrutinizing the actions of Cabinet – particularly on budget matters – is not unique to the province. Here in Ottawa, we see too many instances of MPs passing the Estimates with the barest of glances, and when ministers appear before committee to discuss them, they are generally bombarded with questions about issues of the day rather than what’s in the Estimates. That most of the scrutiny of the Estimates now happens in the Senate is Ottawa’s saving grace – something that provinces like Ontario can’t claim.

Part of the problem is that our civic literacy has so degraded that most MPs or their provincial counterparts (MPPs, MLAs, MNAs – style them how you will) don’t understand that their actual constitutionally mandated job is to hold the government to account by means of controlling the public purse. That, by definition, means scrutinizing budgets, the Estimates, and the Public Accounts. That MPs and their provincial counterparts don’t want to do that job – or at the very least are ignorant that it’s their responsibility – has meant the creation of more Officers of Parliament like the PBO, and the FAO in Ontario, to do that homework for them, and that’s a huge problem for the health of our democracy. But so long as MPs and their counterparts opt to stick their heads in the sand and play American lawmaker, spending all of their time and energy on private members’ business (when they’re not cheerleading for their particular leader), then our system suffers for it as governments aren’t held to account properly.

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Roundup: An astronaut for GG?

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Despite some MPs are agitating for the next Governor General to be Indigenous, it looks like it’s going to be Julie Payette, former astronaut. Payette is a woman and francophone, which fulfils the Anglophone/Francophone alternation that has been the pattern since we started naming our own Governors General, and the government’s desire to have more women in top spots. That she’s not Indigenous will be criticised by some, but I suspect that it may actually avoid other headaches because I do wonder if an Indigenous GG may not find themselves in an inherent conflict of interest given the relationship with the Crown that Indigenous people have which is as sovereign people in a treaty relationship, and being the Queen’s representative has the possibility of being far more complicated once you dig into it. As well, there would likely be pressure on an Indigenous GG from other Indigenous communities to exert influence on the government, given that the understanding of Responsible Government and heeding the advice of the government of the day isn’t all that well understood, and would lead to a lot of disappointment. Meanwhile, here’s Philippe Lagassé on some other aspects of the GG that are worth thinking about.

https://twitter.com/pmlagasse/status/885286674468614146

https://twitter.com/pmlagasse/status/885289432747782144

https://twitter.com/pmlagasse/status/885290949588508672

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https://twitter.com/pmlagasse/status/885297826862960640

While Paul Wells has a great piece about the message being sent with Payette’s appointment, Lagassé also makes a good point about how her appointment is being framed.

https://twitter.com/pmlagasse/status/885307090935451649

And this comment from Denise Donlon seems to sum up a lot of the sentiment I’ve seen:

https://twitter.com/donlon/status/885257880286486528

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Roundup: The Speaker’s clock

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The CBC has a video segment released today talking to Commons Speaker Geoff Regan about the countdown clock in the Commons when it comes to things like Question Period, and how he enforces the 35-second rule for questions and answers.

While it’s a nice video explanation, and demonstrates that Regan will allow a few seconds’ grace when necessary, it does go to demonstrate part of what isn’t functioning with the way we’re doing things like Question Period – or even regular debate, for that matter. By enforcing strict clocks, we’ve incentivised a culture of filling that space rather than it being an upper limit. Even in QP, where it’s a simple yes-of-no question, the temptation to fill all 35 seconds with canned talking points usually wins out (though the three-word yes-or-no Mr. Speaker replies do occasionally happen and make my day). Also, the 35 second clock encourages ministers to read replies in order to ensure that they stay within the limit rather than going over – and that tends to lead to a greater reliance on talking points than substantive answers.

As I’ve written about several times, I think this video is a demonstration as to why we need to loosen the clock. I’ve also witnessed in Senate QP where there is no defined clock, where you can get far more substantive questions and answers (though the Senate Speaker does need to reign them in a bit – some senators will speechify during a question, and sometimes the visiting minister will ramble). But loosening the clock and empowering the Speaker to better manage that time – along with a ban on scripts – will go a long way to improving the flow of debate in the Commons, rather than the farce that we have today.

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Roundup: Caretakers and emergencies

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The situation in BC, where there is an emergency situation of wildfires and evacuations in the midst of a change of government, can be pretty instructive as to how our system of government works. Right now, as with during an election period, the machinery of government goes into “caretaker” mode, and because Christy Clark remains the premier until the moment John Horgan is sworn in, she is able to respond to the situation as she is doing now.

https://twitter.com/pmlagasse/status/884468259185209344

This is why, after Clark’s visit to the lieutenant governor, the statement from the LG was that she “will accept her resignation,” not that Clark has resigned on the spot.

Why is this important? Because the Crown must always have someone to advise them, especially in circumstances like this. Add to that, we have a professional, non-partisan civil service means that they are already in place, and don’t need to have a massive new appointment spree to fill the upper layers like they do in the US. That means that they can respond to these kinds of situations, and while the caretaker government gives the orders, the incoming government’s transition team is being briefed so that they can handoff the files when they form government. It’s an elegant system that we’re lucky to have.

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Roundup: Principle over circumstance

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After a weekend of yet more wailing and gnashing of teeth about the Omar Khadr settlement, and despite detailed explanations from the ministers of justice and public safety, and Justin Trudeau reminding everyone that this is not about the individual circumstances of Khadr himself but rather the price of successive governments who have ignored the Charter of Rights and Freedoms, we’re still seeing a number of disingenuous talking points and facile legal analysis from players who know better. Here is some of the better commentary from the weekend.

https://twitter.com/aaronwherry/status/883736382602194944

https://twitter.com/aradwanski/status/884024742826696704

https://twitter.com/cforcese/status/884031425862828032

https://twitter.com/stephaniecarvin/status/884031824783126528

A number of people over social media have insisted that treatment of Khadr, including the “frequent flier” sleep deprivation technique used to “soften him up” before CSIS agents arrived to question him, or the fact that he was strung up for hours to the point of urinating himself (and then used as a human mop to wipe it up) or being threatened with gang rape didn’t constitute torture.

https://twitter.com/cforcese/status/884047890003505152

https://twitter.com/cforcese/status/884051777850617856

https://twitter.com/cforcese/status/884052141417037825

There was some particularly petulant legal analysis from former Conservative cabinet ministers that got pushback.

https://twitter.com/StephanieCarvin/status/884078867006320640

https://twitter.com/AaronWherry/status/884091668940677120

https://twitter.com/StephanieCarvin/status/884214974809296898

https://twitter.com/InklessPW/status/883432269976940544

And of course, the broader principle remains.

https://twitter.com/stephaniecarvin/status/884029627546599424

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Roundup: Virtue signalling over Khadr

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It’s official – Omar Khadr got his apology and settlement, but the terms of which are confidential (as is par for the course in most settlement offers), and now the Conservatives are really steaming mad. For his part, Khadr says that he hopes the apology and settlement will restore a bit of his reputation and help people take a second look at his case to see that there was more going on, but also notes that he is not really profiting from his past. While the ministers where quite neutral in their tone, when the parliamentary secretary accompanying them translated in French, he took the partisan shots that the government didn’t, which was odd. Later in the evening, the government put out further clarifications, no doubt bombarded with accusations of bad faith.

https://twitter.com/inklesspw/status/883357354187685889

https://twitter.com/cochranecbc/status/883477490399928321

Later in the afternoon, Andrew Scheer took to the microphones to offer a take so utterly disingenuous that it borders on gob-smacking. Essentially, he argued that a) they should have spared no expense in fighting Khadr’s suit, and b) that the remedy for the Supreme Court of Canada decisions around Khadr was his repatriation, which is a complete and utter fabrication. And there’s a part of me that would have like to see them argue that case before the Supreme Court, if only to watch the justices there flay them before laughing them out of the room.

https://twitter.com/aaronwherry/status/883381110285225985

https://twitter.com/aaronwherry/status/883385583233531906

https://twitter.com/AaronWherry/status/883385763634831360

https://twitter.com/aaronwherry/status/883410380277645312

And then the rest of the weighing in, including Stephen Harper, who wanted to pin the blame on the current government, while Conservatives continued to virtue signal that no expense should be spared to give the appearance of fighting terrorists, never mind that this decision is about Khadr’s Charter rights being violated. For a law-and-order party to decide they want to cherry pick which Charter rights don’t apply to people they consider icky, well, that’s a pretty big problem right there.

https://twitter.com/emmmacfarlane/status/883467740325052416

https://twitter.com/EmmMacfarlane/status/883468432578097152

Here are some further legal opinions on the settlement, while Craig Forcese offers a reminder of some of the legal points at play, including where successive governments screwed up and made this settlement necessary where they could have repatriated him earlier and put him on trial here, an opportunity now lost. There is also a reminder that the government didn’t disclose the details of earlier settlements with former terror suspects who were cleared of wrongdoing. Terry Glavin has little patience for how this was handled on all sides, while Susan Delcarourt sees signs that people are still open to being convinced about Khadr.

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