In case you wanted to know why the government has chosen the slogan “Strong Proud Free” on their new ad campaigns that blur the partisan line, well, good luck, You see, they’ve been declared a cabinet confidence, which means that they’ll be sealed for twenty years. Ladies and gentlemen, the most open and transparent government in the history of ever! It’s one of those cases where one hopes that The Canadian Press will file a complaint with the Information Commissioner, because then there’s a chance that she’ll be able to actually examine the file (eventually – she’s a bit overloaded and has little operating budget left) to test whether it really should be a cabinet confidence, and if not, she can work what powers she does possess to get it released (though that is likely to mean going to court given the current sad state of Access to Information legislation). Elsewhere, a court case involving misconduct of the RCMP protection detail of the Prime Minister is looking to get the records in question sealed, apparently using clauses from terrorism trials, to keep information about the PM’s family private. While there is likely some reason to keep certain details private, and We The Media are generally reluctant to drag a politician’s family though the mud, RCMP misconduct is serious business and probably shouldn’t be kept behind closed doors for the very reasons why there have been problems in the Force for so long. Sunlight, generally, is the best disinfectant. But it’s not all bad news for Access to Information – a Federal Court judge ruled that government departments can’t charge fees for requested electronic documents, as they have been trying to do, as that undermines the very point of the Access laws in the first place, which are supposed to cost no more than $5, and it’s not like you’re photocopying or printing these documents – they’re already electronic. In all, however, it points to the genuine need to modernise the system, and this government just voted down a chance to do just that when they killed Justin Trudeau’s private member’s bill on doing just that.
Author Archives: Dale
Roundup: Justin Trudeau and the division of powers
From the sounds of it, Justin Trudeau is apparently setting back the cause of federalism in Canada, as he is getting blamed for an increasing number of provincial woes. It’s been happening for a few weeks with some federal Conservatives like Parm Gill, who are agitating against the provincial Liberals’ new sex ed curriculum, but because Gill and others just refer to the programme as the Liberals’ – not specifying that it’s Kathleen Wynne’s government in Ontario – the implication is that they’re one and the same as Gill shills for federal votes on a provincial issue (that is being torqued by provincial Progressive Conservatives and others, one might add). Moving out east, Trudeau is being blamed for complicity in the provincial Liberals in Nova Scotia proposing to reform film and television tax credits in their provincial budget – apparently Trudeau not saying anything about that change, and a number of other provincial budgetary items, makes him complicit in the whole affair. (During his visit to Halifax yesterday, Trudeau did say he was supportive of arts and culture, but reminded them that he’s a Quebec MP and respects provincial jurisdictions). Yesterday took the cake, as the federal NDP put out a press release blasting Trudeau because the provincial Liberals in PEI remain, well, a little backward on the whole issue of funding abortions in that province. This isn’t the first time that the federal NDP have been trying to ride the provincial parties for their benefit, as they keep hauling out this study that shows that provincial NDP governments have better fiscal records than provincial Liberal or Conservative parties in order to somehow prove they’d be great economic managers – never mind that the various provincial parties are largely divorced from the federal ones (with a couple of minor exceptions in a couple of provinces) and that in many cases the only thing they share is a name, though the NDP like to claim that they’re all one party, federally and provincially. It also means that if you stretch that logic, that Thomas Mulcair is responsible for raising the HST in Manitoba, that province’s appalling state of child welfare cases, and the myriad of problems that the provincial NDP in Nova Scotia left behind when they were defeated (prompting the provincial Liberals to table the budget they just did). It’s actually pretty alarming that people don’t seem to understand the division of powers between the provinces and the federal government – particularly when it’s political parties fuelling this nonsense, and they really need to stop.
Wait, so the NDP are attacking Trudeau over the PEI Liberals? They know there are jurisdiction issues, right? pic.twitter.com/p3CGtIKYx0
— Dale Smith (@journo_dale) April 15, 2015
Roundup: Legalism and homework monitors
Another day, another dissection of the rules of the Senate, this time with the revelation that nobody in Senate administration ensured that work got done when they paid out contractors that senators drew up. The defence maintained the legalistic hammering, to the point that lawyer Donald Bayne omitted one key phrase from the guidelines for Senators expenses: “Likewise, individual Senators must be conscious of the requirement to expend public monies prudently.” And really, that’s what’s at the heart of this trial – even if the rules themselves were loose, it doesn’t mean that it’s permission to go well beyond their intended use and purpose. It makes me wonder who should be checking in on the work of senators when they contract out services – should it be Senate Administration checking that speeches were written, and that research was conducted? Do they become the babysitters and homework monitors of the Senate? It’s a hard question to ask because you can only infantilise them so far before you start getting into problems. It’s even more problematic when senators’ policy work can take a wide variety of forms. This isn’t to say that there shouldn’t be some form of oversight to ensure that there isn’t abuse, but we need to keep in mind that these aren’t civil servants or functionaries. They’re parliamentarians, with all of the attendant privileges that comes with that, and that means something. It’s also one of the reasons why pundits opining that this is really a “trial about the Senate” bothers me, and that these “entitled” senators have “free reign to spend public money,” which is obviously not true. Questions were raised, particularly about Wallin but also Duffy, and things were coming to light, though it there may have been the intent to take care of it more quietly. None of it excuses what Duffy did, and the fact that he appears to have deliberately misled Senate Administration with the contracts he drew up, as he certainly appears to have done with his various and sundry claims. Is it the Senate’s fault, or do we blame them to absolve him of the personal responsibility? That should be kept top of mind as the pundit class makes their pronouncements. The Senate didn’t make Duffy do anything – he made all of his choices himself. Meanwhile, the daily behind-the-scenes look notes Duffy’s exit strategy, and here’s a profile of the courtroom sketch artist.
Roundup: Dodgy contracts and sophomoric pranks
The start of week two in the big trail, and Crown apparently regained some ground –getting the Senate’s HR clerk to note all of the things Duffy either tried to charge for and was rebuffed, or did end up charging for by means of the apparent clearing house that his former camera man started on his behalf, and all kinds of non-Senate related things were paid for that way, be it photo framing or personal training. No doubt Duffy’s lawyer will try to argue that in the absence of enough rules or controls, it should be treated as acceptable, but perhaps I’m getting pessimistic. Here is Nicholas Köhler’s piece of the kinds of nostalgia that the trial is evoking. Meanwhile, the NDP have been trying to have their juvenile fun at the expense of the Senate over the course of the trial to date. Last week it was small boxes with pieces of Camembert and crackers, and this week it was handing out their “Senate hall of shame” hockey cards, with the new addition of Senator Nancy Ruth – because apparently making a deadpan joke is a scandal. But hey, whatever distracts them from having to justify their own expenses scandals with those improper mailings and satellite offices, right? Imagine what they could accomplish if they put their energy to productive use rather than the sophomoric pranks and snarky press releases that they seem to be so heavily invested in as they chase the impossible dream of Senate abolition (which, I remind you, will never, ever happen ever).
Roundup: An incredulous picture by the defence
As we head back to the Duffy courtroom for week two, there are a couple of pieces of note. David Reevely is incredulous at the picture being painted by Duffy’s lawyer – that somehow, a man who has been desperate to be on Parliament Hill and who has haunted it since the early 1970s was somehow naïve about the way that the place worked and was such a “rookie” that he had trouble following its intricacies. In other words, yeah right. James Cudmore, meanwhile, looks at the Duffy Diaries and sees in them Duffy’s personal desire to be a player, and those diaries break down some of his façade for the public. The desire to be a player is not news – it’s long been a fact of life on the Hill that Duffy coveted a seat in the Senate and the romantic (and utterly false) notion of the “taskless thanks,” and a former PEI senator used to say that Duffy would check his pulse every time he shook his hand, and Duffy certainly let several prime ministers know that he wanted the job, and finally Stephen Harper took him up on it in his mass of panic appointments in late 2008 during the coalition crisis, despite all of the warning signs (including Duffy’s prior conviction in Tax Court of trying to fiddle with his expenses on television). Duffy had previously said that the only question Harper had asked him was his commitment to Senate reform – such a long ago notion now that we have the Supreme Court reference that lays out the path for such a notion – but it’s clear from Duffy’s actions that it wasn’t really the case. He wanted to be a player, remember, and so he took up the torch for Harper. There are plenty of other Senators, even Conservative ones, who don’t do any fundraising for the party, but Duffy was fully aboard with it, his partisanship ratcheted up as he attacked opposition MPs, premiers of other political stripes, and put on dog-and-pony shows about the Economic Action Plan™, which led to that now infamously signed photo. Does this sound like someone who was a poor naïve legislator who was trying to fumble his way through the flexible rules of the Senate? I’m not sure that’s the picture that the broader context paints, but one has to wonder how much any of this will be the fodder of the Crown. It’s still early days in the trial, but one should be wary of the portrait the defence is painting of Duffy and the institution itself.
Roundup: The end of acting honourably
At the end of the first week of the Duffy trial, the Crown regained some of the ground that it was appearing to lose – it wasn’t just that the rules were loose, or that there was no definition around residency, but there was an expectation that senators behave honourably, and thanks to the actions of the likes of Duffy, Wallin, and others, that expectation is now being buried under new legalistic guidelines. There was also pushback to the notion that because the Prime Minister appointed Duffy a Senator from PEI, his residency was assumed to be genuine – there are limits, and as I’ve discussed on this blog previously, not only did the PMO not ensure that their ducks were in a row on that front before Duffy was appointed (as previous governments who took appointments seriously and didn’t make them in a panic had done), but they almost practically encouraged the alleged abuses of Duffy and Wallin in particular by that very act of not ensuring residence upon appointment. Duffy himself kept trying to get reassurance as to the residency issue – as his own diaries show – but apparently only enough to ensure that he didn’t need to make the effort of actually ensuring that he was properly moved to the Island as his principle residence. What should be addressed – but isn’t in the trial because it is beyond the ambit – is the fact that when the Queen or GG makes the appointment on the basis of the PM’s advice, it is assume that the advice is sound because of Responsible Government. In the case of Duffy, we can be reasonably assured that the advice was likely not sound – that Duffy was not qualified to be a senator from PEI, or Wallin a Senator from Saskatchewan. What that also means is that under Responsible Government, we get to hold that government to account, and there is an election coming up. Perhaps we need to remind people of that fact. Maclean’s also has commissioned comic strips of the week’s events, while Scott Reid gives us his take on the Duffy Diaries, and the defence to date.
Roundup: The hardest working appointment
Day three was much like day two in the Duffy trial – more trying to assert that there were no residency rules in the Senate, so as to absolve Duffy of having broken them under the letter of the law. Things later moved onto partisan activities, and the big feature everyone was talking about was the autographed photo of Harper and Duffy together, where Harper wrote that Duffy was his hardest-working and best appointment. Well, if he was hardest working, it was for party activities and not Senate business, as Duffy had a pretty lax attendance record for the two committees he sat on – a mere 55 percent, while a fellow PEI senator had 100 percent. So there’s that. It speaks to a willingness on Duffy’s part to do the Prime Minister’s bidding at the detriment of his own constitutional obligations as a senator, unlike other fundraisers that Harper appointed, such as Irving Gerstein, who chair committees and take those duties fairly seriously. And if Duffy couldn’t say “No, I have work to do,” when asked to do yet another party fundraisers, well, that reflects badly on him, doesn’t it? Rather unexpectedly, Patrick Brazeau and his lawyer showed up to watch, apparently taking notes on the proceedings, likely for the benefit of their own upcoming trial. Elsewhere, here’s a look at some of the other findings in the Duffy Diaries, including some backroom machinations in the caucus, some of the other observations of the day, and Nicholas Köhler’s write-up.
Roundup: The self-evidence of residency requirements
The Duffy trial took on a couple of different avenues yesterday – the courtroom drama itself, and journalists off-site poring over the reams of evidentiary data, most especially his calendar pages which held a trove of normally secret caucus information, and some like The Canadian Press, even started to match up expenses to diary dates. If nothing else, the trial is providing that glimpse into the caucus room that we are generally shut out of. As for the courtroom itself, where the star witness was the former Senate law clerk, and the fairly existential question of just what the requirements for a senator’s residency are was the topic of discussion. Duffy’s appears to be a prima facia case of not really being eligible to sit as a senator from PEI – particularly because Duffy himself could not keep up his own end of that bargain. But the point his lawyer was trying to make is that there are no real rules around those requirements, or what “primary” and “secondary” residences are. The problem with Duffy’s defence, yet again, is that these rules should have been self-evident. If you’re appointed to represent a certain region, you maintain your main residence in that region and you have the documentation to prove it, and your residence in Ottawa should reflect the nature of it being secondary, and for work purposes. That there were no rules spelled out in any foundational constitutional documents are a reflection that this was self-evident. (Granted, it also reflects that Parliament only sat a few months of the year then as well, but that’s not really the point). The point is that in the absence of rules, is there a licence to abuse them? Or should there be the presumption that if one has been appointed to the Senate of Canada, that they should have enough intelligence and good character to understand what it means to represent a region and maintain your primary residence there – after all, they will be reviewing legislation from this point hence. One has to wonder if the court can even answer this kind of a question, but in the absence of that kind of power, it should remind us yet again that there is one person responsible for appointing someone who can’t figure out this most basic of questions, and that person is Stephen Harper. Nicholas Köhler looks at how the defence is portraying Duffy as a naïf in light of these lax rules. And of course, the Ottawa Citizen has your behind the scenes look at the day’s events.
Roundup: The problem with Duffy’s defence
Day one of the Duffy trial, and we saw two things – the Crown laying out a case, including a bunch of evidence that was made available to the media, that showed a pattern of abuse by Duffy when it came to the claiming of expenses, such that he was claiming per diems on the day his appointment was announced, never mind that he wasn’t even sworn in yet, and that he was using one contract to a friend as a slush fund for things the Senate wouldn’t pay out. The crux is common sense – no reasonable person would make these kinds of claims. The defence, meanwhile, is arguing that the rules were so loose that it’s not Duffy’s fault, and everyone else in the Senate is doing it. I have a problem with that because no, everyone else is not doing it, and it breaches the good faith that Duffy should have been exercising from his office. Much of it stems to the very fact that Duffy should never have been appointed as a senator for PEI, but when Stephen Harper made that decision, Duffy didn’t live up to his end of the implicit deal. In conversations that I have had with those who used to work in the Liberal Senate Leader’s office back in the day when they formed government, if they were to appoint someone who didn’t currently live in the province that they were to represent, they ensured that they had their ducks in a row beforehand. This meant that the person was told they were being considered for an appointment – and if they told anyone, that wouldn’t happen – but in the interim they had to ensure that they had the driver’s licence, health card, election registration, licence plates, the works – taken care of beforehand. In Duffy’s case, it would likely have meant selling his home in Kanata and ensuring he had one in PEI that he could access year-round rather than a summer cottage, while maintaining either an apartment or a small condo near the Hill as his secondary residence. It’s really a no-brainer, but Duffy apparently wasn’t able to comprehend that and allegedly looked for as many loopholes as he could to maximise what he could claim. Every other senator I have ever spoken to, including some very long-time ones, is aghast at that kind of behaviour, and they do their utmost to minimise what they claim. I am also dubious about this “conspiracy” to “force” Duffy to repay claims that he may have been able to make legitimately – but remember that there were always political considerations at play, and even if some of those claims were legal, they would not have been politically sound and Duffy should have known this from the start. His cries of victimhood ring hollow, but he looks to be set on trying to win the trial on pure technicalities. Nicholas Köhler has his observations here, while the Ottawa Citizen’s Gargoyle shows some of the behind the scenes moments from the day.
Roundup: The trial begins
The day has finally arrived, and the Mike Duffy trial can begin – and let me say, if you were sick of hearing about it before it began, well, the wall-to-wall coverage is going to be insufferable, especially over the next two weeks until the Commons resumes its sitting, and we’ll get a budget. And you’ll forgive me if I’m not one of the people who is expecting this to be a litany of fireworks and bombshells that will damage the PMO. If anything, I would presume that the judge would take a dim view of any attempt to make this a trial of Stephen Harper’s government rather than of Duffy’s culpability in his own affairs. After all, he signed off on all of those expenses, and he bears responsibility for everything, up to and including accepting that cheque from Nigel Wright. The rest – trying to pry open the inner workings of the PMO, as much as Duffy’s lawyer may try to bring this up to portray Duffy as the victim or a pawn in these machinations, I doubt will hold much water. In fact, even the most recent “shocking” revelation has nothing to do with the PMO, but rather with Duffy’s own hand in things. So no, I really don’t think this is going to be cause for Harper to sweat or lay awake at night – one doubts that Duffy has too much dirt left that can damage him at this point. (Incidentally, the Maclean’s Duffy trial page is pretty sweet, particularly the Scott Feschuk humour pieces.)
ICYMI, back in September I profiled Duffy's lawyer, Donald Bayne, for @CanLawMag. http://t.co/5vbbFs4cTn
— Dale Smith (@journo_dale) April 7, 2015