Author Archives: Dale

About Dale

Journalist in the Canadian Parliamentary Press Gallery

Roundup: Challenging an unconstitutional law

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The saga of Steven Fletcher in Manitoba continues to fascinate and enrage me. The now-former member of the province’s PC caucus, and one-time federal Conservative cabinet minister, has not only run up against a very problematic expulsion from caucus because he dared to have differing opinions (which I wrote about in my column), but now it appears that Fletcher is planning to challenge the province’s law that bans floor-crossing. Not that he wants to cross the floor, but the fact that the law is on the books.

In case it’s not clear, the very notion of a legislated ban on floor-crossing should be unconstitutional. Apparently, Manitoba’s not the only province to have this either – New Brunswick has a law on the books that requires floor-crossers to reimburse their former party for election expenses, which is also legally dubious. The history of these laws is also circumspect at best – in Manitoba, it was allegedly cashing in on the anger around David Emerson crossing the floor to become a federal Conservative cabinet minister in 2006, while in New Brunswick, it was the angry response to a husband-and-wife MLA couple crossed from the provincial Conservatives to the Liberals. The Manitoba case has the added factor that it was an NDP government at the time, and the NDP are particularly hostile to floor-crossers, which one suspects has to do with the fact that they are a party that is big on solidarity and being in constant lock-step, and they aren’t very tolerant of their members stepping out of line. They’re also much more wrapped up in their party identity, which is part of why these laws are such a problem.

The thing with our electoral system is that it gives individual agency to MPs. They are elected as individuals, to fill a single seat in the House of Commons in a separate election. That’s why a general election is 338 separate elections federally, or however many seats are in that province’s legislature during their elections. MPs are not elected a party vote which then gets allocated to that seat, and this is important. Because we elect MPs as individuals, regardless of whatever party colours they may be wearing, it empowers them to make their own decisions in Parliament (or their provincial legislature), and that includes the ability to cross the floor when their conscience is so moved. It’s not a bug in our system – it’s a feature because it means that the individual is more powerful than the party. The NDP doesn’t like this line of thinking at either level of government, and apparently the provincial Liberals in Manitoba are also under the misguided notion that it’s “unconstitutional” (which it most certainly is not). I’m glad that Fletcher is planning to challenge the law, because it is an affront to Westminster democracy. And when it does get struck down, I hope it serves as a warning to other provinces, or the federal NDP in their perpetual quest to enact such laws.

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Roundup: The Khadr settlement

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News that Omar Khadr’s lawyers have reached a settlement with the government for some $10 million over his mistreatment and violation of his rights set off a firestorm, particularly among Conservatives, who took to the Twitter Machine to perform some outrage and to virtue signal, ignoring all of the relevant facts about the case, like the fact that he was a child soldier, that he was tortured, subjected to an illegal court process, confessed under duress to a made-up offence and pled guilty under similar duress, and the fact that thrice the Supreme Court of Canada found that we violated his Charter rights. (The government, incidentally, will only confirm that there is a judicial process underway, nor have any Liberal MPs joined in the online fray). And before you ask, no, this isn’t just something to be worn by the Harper government, but goes back to the Chrétien and Martin governments.

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And it cannot be understated, no matter what Khadr is accused of having done (and there is much disputed evidence that he could have thrown that grenade), the reason he would be getting compensation is because Canada violated his rights. And while Andrew MacDougall may explore the partisan point-scoring on Khadr, we cannot escape the simple fact that, as Stephanie Carvin drives home, that we are now paying the financial price for violating his rights for no tangible benefit. I would add that this financial penalty should also serve as a deterrent to future governments who think that they can get away with violating a Canadian’s rights and there not be any consequences. Amidst this, that a party that purports to be concerned with “law and order” to have trouble grasping with the basics of the rule of law, and coming up with a myriad of disingenuous justifications for ignoring said rule of law, is troubling. Oh, and the widow of the soldier that Khadr is alleged to have killed, and the other he is alleged to have blinded, are applying to the Canadian courts to claim his settlement (but I would be curious to see, if it makes it to trial, if their claims would hold up in court considering that they are based on charges and evidence that would not have stood up to Canadian law).

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Meanwhile, while all of this outrage is being performed, remember that these same conservatives who insist that he was fully capable of having the mens rea to commit war crimes (which there are no legal basis for) who also insist that fifteen-year-olds can’t consent to sex, or that they need parental consent to attend gay-straight alliance clubs at their schools. Because there’s so much logical consistency there.

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Roundup: Rural nomination angst

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In yesterday’s Hill Times, a few would-be Liberal candidates in rural ridings are talking about how they want nominations to start sooner than later, citing the challenges of rural life when it comes to door-knocking – owing to the difficulties of travel in the winter, the best time for them to meet constituents is in the summer and autumn. Hence, they want the nomination process to be over before summer 2018, so that they have a long lead-time to do the campaigning in large rural ridings – something that is less of an issue in urban ridings.

As far as suggestions go, it’s not a terrible one. I think that parties should have a fairly long lead-up with a nominated candidate, particularly in unheld ridings, so that they can do the work of grassroots engagement and get people involved in the process. This also being said, in a riding that has an incumbent, you also don’t want to run the nomination too early because an open nomination is also a way to hold that incumbent to account by their grassroots members, so if you hold the nomination too early, you don’t get as much of their tenure to judge them by. I know that some Liberals are agitating to have their nominations protected, while Conservatives have a threshold system in place to protect their nominations (which I am less keen on because it can short-circuit accountability), but I also know that the Liberals haven’t made up their minds how they’re dealing with nominations for 2019, which boggles the mind. Of course, this is part of the fallout of their wholesale party constitution rewrite (which, I will remind you, centralised even more power in the leader’s office at the expense of the grassroots), so we’ll see how they decide to deal with this, and how much lip-service they pay to the grassroots while still keeping their newly acquired centralized power. Suffice to say, nominations remain the most important part of our democratic process, so watching a party flail about it is never a good thing.

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Roundup: Charles and Camilla in Iqaluit

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Prince Charles and Camilla, Duchess of Cornwall, arrived in Canada, starting their tour in Iqaluit to talk about revitalising the Inuit language – project he has taken great interest in, and last year invited some Inuit delegates to Wales to hear about how they had success in revitalising the Welsh language there. While Charles’ official role in Canada is somewhat ambiguous now that we have a dubious succession law on the books (thanks to the previous government), he is nevertheless the heir to the Crown. The tour moves to Trenton and Prince Edward County in Ontario today, and Ottawa for Canada Day on Saturday.

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Roundup: PBO’s platform peril

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Now that the budget implementation bill has passed, the Parliamentary Budget Officer is in the midst of transforming into yet another unaccountable Officer of Parliament that will have a broad mandate and few checks on his actions, given that the government backed down on their attempts to limit the scope of his work. What they didn’t limit was the giving the PBO the mandate to cost election promises by other parties, despite his objections to doing so, and so now his office is being forced to figure out just how they’ll do it. The legislation does make it clear that he’s only to cost individual promises, not their whole campaign, but it’s going to be an enormous amount of work that will be used even more as a cudgel than his work already is, and we can expect an election period being filled with taunts of “See, the PBO says that your plans will cost more than you say and he’s independent,” with the unspoken “Nya, nya!” in there. Oh boy. Anyway, Jennifer Robson has a few more thoughts on the issue.

The bit about a common baseline is possibly important, given that economist Stephen Gordon has been trying to match Liberal election promises to the current budget framework and has found the task to be nigh impossible.

Enforcing common costing baselines may sound like a good idea, but it does make me nervous about campaigns devolving into accounting exercises at the expense of other considerations, including accountability, and that we’ll have repeats of 2008, when we had clear platform commitments shrugged off by reporters going “it’s just so complicated” when a) it wasn’t, and b) it reinforces this “math is hard” narrative that does nobody any favours. But maybe that’s just me.

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Roundup: Trudeau’s missing electoral reform link

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Apparently, we’re going to prosecute the demise of electoral reform yet again, after Justin Trudeau was asked about it in his end-of-sitting press conference yesterday. Trudeau, to his credit, was a bit more frank and earnest than he has been on this in the past, and laid out how he had always been in favour of ranked ballots because they eliminate the need for strategic voting, and the opposition was so solidly in their own camps – the NDP for Proportional Representation and the Conservatives for status quo with the added kicker of demanding a referendum – that Trudeau ended up pulling the plug, because he sees PR as bad for the country (he’s not wrong) and referendums even more problematic (again, their track records globally right now are not good).

Of course, everyone freaked out about this answer, and starting howling and frothing at the mouth about how much he’d betrayed them with this promise. Of course, per his promise he did draw up a committee and consult, but he pulled the plug before changing the system.

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Part of the problem – aside from the fact that it was a stupid promise to begin with – was that the Liberals on the electoral reform committee didn’t make the case for ranked ballots, nor did they call any witnesses to put forward that position, and apparently disinvited the ones who had already been invited. Having listened to the eager faces on the committee, I’m not entirely convinced that this was simply a cynical ploy the whole time, but I do think a great deal of naïveté was at play, where they were trying to be open-minded – something none of the other parties could say, as they did their utmost to stack the process from the beginning, both with the torqued composition of the committee itself, to the selection of witnesses, to the so-called “consensus” in the report (which was hot garbage, let me reiterate).

The fact that the Liberals played coy about their Trudeau’s preference was certainly a problem. Maybe it’s because they were trying to avoid the myth going around that ranked ballots were “First-past-the-post on steroids,” a characterization based on the analysis of a single poll of second-choice votes of the 2015 election, which was neither authoritative, nor did it take into account the fact that it didn’t produce such a result in Australia, and yet this notion hovered in Canadian media for months. So the handling of this whole affair continues to mystify, but for the love of all the gods on Olympus, can we just bury it already?

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Roundup: Trying to measure independence

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As Senators have made their way back home for the summer, we’re having another round of them poking each other, like kids in the backseat of the car on a long trip, over just who are the “real independents” in the Senate. It’s getting a bit tiresome, especially with the Conservatives insisting that they’re the only ones because they vote against the government more often. The problem is that it’s a fairly flawed metric because they’re the Official Opposition and are supposed to vote against the government on a consistent basis. That doesn’t make them independent – it makes them the opposition.

The big problem with the metric about voting as a measure of independence ignores the broader procedural issues. If the government could really command the votes of its new independent appointees, then bills would be making it through the Senate a lot faster, and they’re not. The logistics of getting legislation through the chamber when you don’t have a whip who is organizing votes is one of the measures by which you can tell that these senators are more independent than the Conservatives in the Senate give them credit for. While the Conservatives, Senate Liberals and Independent Senators Group are getting better at organizing themselves in trying to come up with plans around who will be debating what bills when, the fact that the Government Leader in the Senate – err, “government representative,” Senator Peter Harder, refuses to negotiate with those groups to prioritize some bills over others, has been part of the reason why some bills went off the rails and took forever to pass. If he did negotiate, or could command votes to ensure that bills could be pushed through when needed, I would buy the argument that these senators aren’t really independent. The fact that there is this lack of coherence in moving legislation is one of the markers in the column of greater independence. This is also where the argument about the need for an Official Opposition kicks in.

While the dichotomy of strict Government/Opposition in the Senate has been upended with the new group of Independents, ending the duopoly of power dynamics that contributed to some of the institutional malaise around the rules, I will maintain that an Official Opposition remains important because it’s important to have some focus and coherence when it comes to holding the government to account. Simply relying on loose fish to offer piecemeal opinion on individual pieces of legislation or issues risks diluting the effectiveness of opposition, and it also means that there is less ideological scrutiny of a government’s agenda, which is also important. Partisanship is not necessarily a bad thing, and the Senate has traditionally been a less partisan place because there was no need for electioneering within its ranks. Trying to make it non-partisan will not make it better, but will make it less effective at what it does.

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Roundup: A northern populism

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Every time I see someone writing about Canadian populist movements and the dismissive concerns that it could never happen here, I always shake my head because it does happen. To an extent, we are living through it right now. The Canadian Press has been doing some surveys to try and discover what the “northern populism” might look like, and while it’s not quite the same as the forces that brought Donald Trump into power, it nevertheless exists here.

Part of the difference we see is that in Canada, those populist forces are less white than they are in the States or in Europe, but the focus remains the same, which are the perceived ills of the liberal (big or small L, take your pick) “elites.” It’s not a secret that the way that Conservatives like Jason Kenney targeted ethno-cultural minority communities was by focusing on socially conservative issues, whether it was their reticence to embrace same-sex marriage, or things like marijuana, those were cues that helped them tap into those communities the ways that other populist movements haven’t, who are too busy dog-whistling to appeal to the more blatant racists. And while there are those undercurrents in Canadian populist movements, for which things like immigration remains a bugaboo, Canadian conservatives have managed to tap into a particular vein of “it’s not our immigrant community that’s the problem, it’s those other immigrants that are,” and that set up a kind of justification that “hey, we can’t be racists because these immigrants don’t approve of that immigration policy,” never mind that yes, immigrants can be intolerant of other racial or ethno-cultural minority groups that aren’t their own.

But populism is not a spent force in Canada. We saw how it operated with Rob Ford, and it’s alive and well in Alberta as they try to harness it into an anti-NDP political party. To an extent, the federal Conservatives and NDP have largely abandoned their own ideological underpinnings to be right or left-flavoured populists, and yes, there is a great deal of populist rhetoric underpinning the Liberal electoral platform, with appeals to this nebulous middle class that has no data to back up their claims (like stagnant wages for one spectacular example). Was Justin Trudeau able to harness it more effectively than his opponents? Yes. Does that mean that the scourge of populism that gave the Americans the Trumpocalypse is absent here? Not at all. That the composition is slightly different is an academic difference, but not reassuring in the least.

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Roundup: Clarity is not an appeal

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With another court case involving First Nations children, you’d expect there to be a bunch of hue and cry, and there certainly has been, but I wonder how much of it is actually misplaced. In this case, the government is seeking clarity from the court on a couple of aspects of the Canadian Human Rights Tribunal decision on applying Jordan’s Principle, which is not an appeal. I’ve seen all manner of people, from reporters to advocates on Twitter railing that the government is appealing the decision. Asking for clarity is not an appeal.

If you actually read the story, they have legitimate concerns about the restrictions around case conferencing and on timelines in the decision, both of which seem to be pretty fair concerns to have given that both ministers are medical doctors and have expertise in what these issues mean. And I fail to see how getting clarity is trying to find a loophole to get out of the decision – it doesn’t track with either the promises, the investments made, or the fact that the whole file is more complex than many of the advocates would let on. You can’t simply pour money into a system that doesn’t have the capacity to absorb it and distribute it effectively, and you can’t just wave a magic wand into a jurisdictional minefield like this particular decision addresses and expect that everything will always have the best outcome by sheer force of willpower, especially when there are areas that are unclear to players involved.

The fact that I’ve been a justice reporter for the past couple of years means that I’ve been exposed to a lot of the sensitivities involved in complex cases, and this certainly qualifies, despite what certain advocates and opposition MPs would have one believe. Outrage that the government is going to court isn’t necessarily warranted, and most of the time, it’s been pretty disingenuous, whether it’s on this case, or in assessing the damages in the Sixties Scoop class action, where again advocates, opposition MPs, and even reporters characterized it as an appeal when it wasn’t an appeal – it was the next stage in a process where they needed to determine damages on a case-by-case basis rather than simply mailing out cheques. Not every time the government goes to court is nefarious, and people need to calm down because there is a lot of crying wolf going on that’s helping nobody, most especially the people who these decisions are supposed to benefit.

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Roundup: One bill passed, one deferred

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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.

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