Tag Archives: Ethics Commissioner

Roundup: Self-isolating MPs

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Yesterday evening, Seamus O’Regan tweeted that after a persistent head cold, he went to his doctor and was self-isolating until he got the results of the COVID-19 test that he got. Around the same time, former Conservative Cabinet minister (and sexting blackmail victim) Tony Clement was on Power & Politics saying that it may be time to think about taking Parliament “digital,” and holding debates and votes remotely for the duration. Yeah, that’s a big nope.

I get that being a politician is a tactile business, and there are concerns that the House of Commons is essentially one big cruise ship, however Parliament needs to happen face-to-face. It’s inconceivable that it could be done remotely because so many of the needed conversations happen off-camera and on the sidelines. That can’t be replicated by everyone working remotely. Should they take additional precautions? Sure – additional hand-washing, practicing social distancing when they take meetings, and so on, but that’s not exactly a big hardship. And it’s not like there aren’t a number of constituency weeks coming up for MPs to hunker down if they need to, and even though it may be a hung parliament, there are more than enough provisions for members from different parties to “pair” absences so that there are no accidental losses of confidence in the meantime (because as much as the Conservatives claim they want an early election, this is largely bravado as their party organization is in chaos and they are in no shape for it, not to mention that neither the Bloc nor the NDP want one either, and they have the votes that count).

The bigger danger, however is contagion – not of the virus, but of the notion that MPs can “work remotely,” which many have been pushing for in the ongoing effort to make Parliament more “family friendly.” But that way lies madness – MPs won’t bother to leave their constituencies, believing they can do more good there (even though constituency work is actually not part of their job description), and without those sideline conversations, it will polarize the environment even more than it already is. Recall how collegiality was shattered after evening sittings were ended and MPs no longer ate dinner together – this would make it that much worse, if they no longer have to look one another in the eye or cross paths. This nonsense needs to be quashed here and now. You can’t Skype Parliament.

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Roundup: Protests and impossible demands

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The protests in support of the hereditary chiefs who are against the BC Coastal GasLink pipeline continue to disrupt the rail corridors in central Canada, though that may soon come to an end as the OPP has stated that the situation has become “dire” and threatened enforcement of court injunctions soon enough. Rail service has been cancelled for both freight and passengers, which is going to cause some economic disruption, especially as other sympathetic protesters have been attempting to blockade ports on both coasts. The federal government maintains that they are very concerned about what is happening, but state that these remain areas of provincial jurisdiction, and that’s something that we can’t simply handwave away.

And this is something that should be remarked upon a little more – the demands that the federal government get involved with the Coastal GasLink situation are essentially saying that the government should ignore the constitution, or that when a group feels aggrieved by the provincial government that they can then turn around and demand that the federal government do something, like asking your mother for permission after your father says no. Meanwhile, some of the protesters – like those staging a “sit-in” in the Department of Justice building, are making novel demands of the minister that are outside of his powers, and which don’t respond to how government operates in Canada – particularly given that the RCMP operates at arm’s length and doesn’t take orders from the justice minister or any Cabinet minister. In this case, they are enforcing a court order, which again, the government can’t simply step in and make disappear. We have a rule of law. And yes, the situation is complicated by the fact that there aren’t treaties in this area of BC, which means there is uncertainty as to the rights and title question (which have been under negotiation for years, if not decades), but the justice minister can’t wave a magic wand. Real life doesn’t work like that, and for this group to declare that if he doesn’t wave a magic wand by today that “reconciliation is dead,” well, it’s more than a little precious.

Meanwhile, these protests are giving rise to other voices who want to exploit the situation, like Conservative leadership hopeful who says that if he was prime minister, he would do something about it. He won’t say what – but by gum he’d do something! Jason Kenney, meanwhile, is trying to build the case that this is somehow a “dress rehearsal” for future pipeline protests, and calling these actions “ecocolonial” (whatever that means). Meanwhile, his environment minister is slagging the First Nation chief who has raised concerns about Teck Frontier and the lack of engagement by the provincial government, saying that it’s just about money and the government has to worry about taxpayers. Of course, unless Kenney and company don’t tone it down, things are bound to get worse because of the underlying complexity, so perhaps people need to take a deep breath.

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Roundup: A sledgehammer solution

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Talk about the sexual assault training for judges bill has continued, and the Conservatives have continued to float the idea that it should be expanded to include Parole Board officers. The problem there, of course, is that the bill deals with amendments to the Judges Act, which has bugger all to do with the Parole Board, and this too-cute-by-half tactic of the Conservatives betrays how boneheaded their tactics are.

Meanwhile, Gib van Ert, former Executive Legal Officer to the Chief Justice of the Supreme Court of Canada (who heads the Canadian Judicial Council), has some thoughts on the bill and why it’s very problematic.

Some scholars have shrugged and say “Big deal if it means they get more training,” but the original legislation was far more insidious in that the reporting requirements were a threat do the administrative independence of the court as well. But I’ve spoken to former judges who say this is unnecessary. Another one responded to van Ert. Part of the problem is that there have been high profile cases where the judge has been very wrong on sexual assault law, and that tends to be overturned at the appellate level – but much of the time, the most infamous cases have been provincial court judges, which this doesn’t deal with.

So why are they doing this? Optics. MPs want to look like they’re doing something about the problems or perceived problems, and they’re taking the sledgehammer approach because it looks effective, even when it may not actually be. But that is so much of politics these days, which we need to start breaking out of.

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Roundup: Foreign aid announcement a house of lies

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On what was supposed to have been the date of the Munk debate, Andrew Scheer was in Toronto to have a big press conference about his foreign policy plans, which were conveniently leaked to the Globe and Mail Monday night so that they could dominate the news cycle first thing in the morning – much to the ire of everyone on the campaign bus who pay for the privilege of being there. Scheer’s big headline was his plan to slash foreign aid spending – a blatant pander to the nativist sentiment that falsely has people claiming we should take care of our own before sending “so much money” abroad. After a lengthy diatribe that distorted, misconstrued and outright lied about the Liberal record on foreign policy, Scheer then laid out his four priorities – the slashing of legal aid (allegedly to focus on children in war-torn and poor countries while using more of the money to spend on their other domestic programmes); strengthening our alliances with our “traditional allies” (I’m guessing that means the UK, Australia, and New Zealand) and sending more military aid to Ukraine; targeting regimes like Iran with Magnitsky legislation; and “depoliticizing” military procurement. (Oh, and securing a UN Security Council seat isn’t going to be a priority for him either). But as it turns out, Scheer’s figures about what we are spending on foreign aid right now was one giant lie (and more context in this thread), and one notable example where Scheer couldn’t get a handle on his facts was that money that was sent to Italy was for relief after an earthquake there. His whole part about “depoliticizing” military procurement was just a wholly fictional accounting of the Mark Norman affair and the procurement at the heart of that situation (which was initially a highly political sole-source contract that was designed to save Steven Blaney’s seat). And to top it off, it was clear from this press conference that Scheer has an adolescent’s understanding of foreign aid – and foreign policy in general. But it should be alarming to everyone that someone who is running on “trust” went to the microphones and lied his way through an entire press conference on a policy platform that is in itself a house of lies. This election is getting worse with every passing day.

In Richmond Hill, Justin Trudeau met with some suburban mayors in the GTA to talk about gun control, but just reiterated their existing platform promises around banning assault rifles and finding a way to let cities further restrict handguns (even though these very same mayors all wanted a national handgun ban – so, own-goal there, Liberals).

Jagmeet Singh, meanwhile, remained in Vancouver to talk childcare some more, and this time pledged to let new parents retain full benefits if they take less time for parental leave than is usually allotted.

It’s the TVA debate tonight, so expect a quiet day on the campaign trail in advace of that.

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Roundup: Predictable drama, unpredictable overreach

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The outcome of yesterday’s “emergency” meeting of the Commons ethics committee was not unexpected – that the Liberal majority on the committee declined to pursue the matter, and it would go no further, while the Conservatives and NDP wailed and gnashed their teeth to the assembled media outside of the room, ensuring that their media luminaries like Lisa Raitt and Pierre Poilievre were there for the cameras instead of their regular committee members. Also predictable was Elizabeth May’s moral preening that she wanted this to be “non-partisan,” which was never going to happen. It was not unexpected that “maverick” Liberal Nathaniel Erskine- Smith would stand apart and vote to hear from the Commissioner – albeit for different reasons than the Conservatives wanted, which for Erskine-Smith was to get answers as to his thinking because Erskine-Smith is in the camp that the Commissioner got the law wrong (and he’s a lawyer, so he’s perhaps better equipped for this kind of statutory interpretation than some other critics).

https://twitter.com/EmmMacfarlane/status/1164239833235111936

But there was one completely bonkers event that happened that should be alarming for everyone involved, which was when Lisa Raitt moved a motion to have the committee summon journalist Aaron Wherry in order to get his notes and interviews with Trudeau for his newly released book, because Raitt claims that Trudeau breached Cabinet confidence in how he detailed his meetings with Jody Wilson-Raybould. First of all, the notion that he can breach Cabinet confidence is absurd because he’s the prime minister – he can pretty much determine what he wants to keep confidential; and secondly, summoning a journalist to testify at committee is a very, very bad and stupid thing, and it’s utterly mind-boggling that Raitt didn’t see this. It’s even more egregious that Peter Kent, former journalist (and now profligate conspiracy theory monger) voted in favour of Raitt’s motion. Fortunately, the NDP had enough sense to distance themselves from this huge overreach, but it’s galling that she would even propose it in the first place. (Also ridiculous is this notion that there is some kind of criminal obstruction of justice at play, but that’s also the narrative that they’re putting forward as they performatively demand that the RCMP investigate – because calling on the RCMP to investigate your political rivals isn’t totally a banana republic move). Politics and playing to the cameras can make MPs do dumb things, but this was alarming in how far they were willing to take this to score points.

https://twitter.com/EmmMacfarlane/status/1164261091591053313

Meanwhile, Chantal Hébert reads the polls to see that the Commissioner’s report hasn’t really hurt the Liberals, meaning that pursuing this has diminishing returns for the Conservatives, and she parses what that could mean in the weeks ahead.

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Roundup: Unserious knee-jerk suggestions

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As expected, some of the sillier suggestions for avoiding future SNC-Lavalin-type Affairs have started cropping up, and yesterday, Policy Options hosted one from the head of the Canadian Taxpayers Federation. His suggestions? Splitting the role of Attorney General and Justice Minister, and to ban omnibus bills.

On the former, it’s clear that he didn’t actually read the McLellan report beyond the headlines, because he would have seen – as Paul Wells pointed out so ably in his own piece – that the guidelines that McLellan puts forward in the report would have prevented this whole sordid affair before it got off the ground. (Side note: It may not have prevented Jody Wilson-Raybould from being shuffled, given the lack of competence she had demonstrated in the role overall, and Scott Brison was going to retire regardless, so that likely would have happened, but the fallout may not have gone quite the same way). There is no reason given in the Policy Options piece for rejecting McLellan’s advice – just that the whole Affair has damaged the public confidence. So that gets a failing grade.

As for the suggestion to ban omnibus bills, he doesn’t quite grasp the magnitude of the suggestion. He claims, not incorrectly, that they exist for the sake of efficiency, but that efficiency is largely because there are many pieces of legislation every year, where if you introduced individual bills for each component – such as around technical changes in a budget implementation bill – Parliament would grind to a halt. There is a time and a place for omnibus bills – the difference is when they are being used abusively. The Conservatives stuffing changes to the Canadian Environmental Assessment Act into a budget implementation bill? That’s abusive. The Deferred Prosecution Agreement provisions being put into the budget bill? It’s borderline, but it wasn’t hidden or snuck through – it was in plain sight, the committees in both Houses each saw it and dealt with them (albeit less effectively on the Commons side), and the Commons has new rules to deal with splitting up votes on omnibus bills. Ironically, if the DPA legislation had been put forward as a separate bill, it likely would have languished until swallowed up by an omnibus justice bill, as happened to several other criminal justice reform bills over the course of the last parliament (speaking of Wilson-Raybould’s ability to manage her own bills). But the suggestion to simply ban all omnibus bills is unserious and jejune, and a perfect example of the kind of knee-jerk suggestions we’re going to see plenty of in the days ahead.

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Roundup: Clarity on “partisan” ads

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That report that climate change advocacy could be considered “partisan” during the writ period had a lot of people talking yesterday – but the problem is that it seems to have been a bit overblown, which I’m chalking up to Environmental Defence overplaying the advice from Elections Canada, and The Canadian Press reporter not getting enough context around that advice. In any case, Elections Canada was playing some damage control, specifying that it had to do with paid advertising and not advocacy writ-large, while various party leaders took shots at the absurdity of it all. And to walk through some of it, here’s Jennifer Robson to allay some of your fears.

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Roundup: The inevitable committee bat-signal

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And now, the hangover from Wednesday’s Ethics Commissioner’s report, starting with the inevitable demand from the opposition parties that the Commons Ethics Committee reconvene for an emergency meeting to hear from the Commissioner, plus a list of witnesses, to fully explore the whole thing in front of the cameras yet again. And while a meeting has been called for next Wednesday, it will inevitably be that the Liberals on the committee (or rather, those from nearby ridings who have come to the meeting to fill the seats) will say that with the report, we’ve heard everything we need to and Canadians can make a decision in October, and deny permission for the meeting, which will then be followed by the other parties bemoaning the cover-up and secrecy, and then we’ll move onto campaigning. As you do.

Elsewhere, we heard from Jody Wilson-Raybould who said that the revelations about how deeply SNC-Lavalin was working with the department of finance was a surprise to her. Jane Philpott said she felt sad by the whole affair, and troubled by the attempts to discredit Wilson-Raybould in the prime minister’s submissions to the Commissioner, and she thinks an apology is warranted. Trudeau, however, is steadfastly not doing so. Mario Dion thinks that his office needs the power to levy sanctions for breaches like this one, as there currently aren’t any. SNC-Lavalin will be carrying on with their Federal Court of Appeal bid to get judicial review for the Director of Public Prosecution’s decision not go discuss a DPA with them.

Another emerging theme from this whole sordid affair is the issue of the post-retirement careers of Supreme Court of Canada justices, several of whom became embroiled in the affair. Amid calls for new rules around what constitutes proper activities for these retired justices, there does seem to be a recognition by the current Chief Justice and the Canadian Judicial Council that there may be an issue, and they are having these discussions.

Meanwhile, Chris Selley notes that the Commissioner’s report seems to impugn the way that governments do business, especially when they make a big deal about investing in a company and showing up with a giant novelty cheque (though we’ve seen a lot fewer of those under this government than the previous one) – and he thinks it’s about time. Law professor Errol Mendes details how Dion has made a serious misinterpretation of his enabling legislation and jurisdiction in the creation of this report, which should be concerning (and We The Media need to be far less deferential to Officers of Parliament because they are not always right).

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Roundup: Competence, communication, and the Commissioner

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Yesterday was political theatre in the extreme, as the Ethics Commissioner, Mario Dion, released his report into the Double-Hyphen Affair. His conclusions were damning for Trudeau (but suspect – more on that a little later), and there was some genuinely troubling revelations in there, such as the fact that it seems that it was lobbyists from SNC-Lavalin who were the ones who suggested putting the Deferred Prosecution Agreement legislation in the budget, and seemed to be attempting to stage-manage the whole thing – right up to dreaming up elaborate schemes to try and bring former Supreme Court of Canada Chief Justice Beverley McLachlin into the fold, only for her to tell them that she’d wait to hear from Jody Wilson-Raybould. (Reminder: DPAs are not an invention of SNC-Lavalin, but have been a tool in other countries for over a decade, and Canada was a laggard in adopting them, and even then, we didn’t do a very good job of it, and yes, there is a lengthy paper trail of the consultations undertaken by the government on this. Also, they’re not a get out of jail free card – they do involve penalties, but would enable the innocent employees and shareholders of a company to not suffer for the actions of a few). As troubling as this is, my biggest takeaway is the absolute crisis of competence within this government – officials in different ministers’ offices who didn’t communicate with one another, which was compounded by Wilson-Raybould not offering any explanations for her decisions so that they could be communicated to either SNC-Lavalin or even the other departments. Recall that the infamous Wernick call that Wilson-Raybould was prefaced by Wernick that he was looking for an explanation, and ended when Wilson-Raybould said that she turned over a report to PMO weeks previously, to which Wernick responded “That’s news to me.” If Wilson-Raybould was being continuously bombarded from all sides, it’s because there was a lack of clear communications from all sides. Was that improper interference? Well, that’s a bit of a judgment call, though Dion argued that it was. You can take that for what you will.

With the release of Dion’s report came the release of Anne McLellan’s own report into the structure of the Minister of Justice and Attorney General’s office, which ultimately concluded that the roles didn’t need to be separated, but that clearer guidelines needed to be established – including better communication from the Attorney General on decisions that were of interest to the government.

(Meanwhile, here are some primers on the Shawcross Doctrine, who Mario Dion is, and a timeline of events).

As for reactions, Andrew Scheer was predictable in saying that this was “unforgiveable,” decried that this was the first prime minister in history to have been found to have broken ethics laws (laws that only applied to two prime ministers, so that history is pretty short), and that he wants the RCMP to investigate…something. We’re not quite sure what. Unsurprisingly, Wilson-Raybould issued a statement shortly after the release of the report, saying that she has been completely vindicated. Trudeau himself said that he doesn’t agree with all of the conclusions – particularly that you can never debate an issue with the Attorney General – but said he accepted the report and took responsibility, and that they would learn from it – and lo, they have the McLellan Report to draw more of those lessons from as well.

What virtually nobody actually made any mention of, save a handful of lawyers, was the fact that the Commissioner’s findings resulted from a very large overreading of that section of the Conflict of Interest Act – so much so that it was hard to see how his understanding of “private interest” fit in with the definition of a conflict of interest. In fact, in the report, Dion stated that the initial complaint was under Section 7 of the Act, and while found that was not violated, he then decided on his own volition to see if Section 9 wasn’t a better fit, and then showcased how he jumped through a number of hoops to arrive at that conclusion. He also complained that he wasn’t given access to documents that fell under Cabinet Confidence, and argued that his mandate made that access “implicit” rather than explicit, which should be a warning sign of an Officer of Parliament that is trying to claim more powers than Parliament originally allocated to him. That should be concerning – as is the fact that everyone credulously cherry-picked the damning paragraphs from the report rather than looking at it in context, and the fact that the basis for those conclusions are actually problematic. This doesn’t mean that wrongdoing didn’t occur – just that the report itself was arrived at by a great deal of overreach, which should colour the conclusions, but nobody in the media did any of that critical thinking.

In hot takes, Chantal Hébert was first out of the gate, to wonder if this would be a fatal wound for Trudeau given how scathing the report was. Robert Hiltz castigates Trudeau’s inability to apologise because that would mean that the government was acting in SNC-Lavalin’s interests and conflating it with that of the country. John Geddes wonders why SNC-Lavalin never took Wilson-Raybould up on her offer to pass along their public interest arguments to the Director of Public Prosecutions (and the answer is fairly unsurprising). Andrew Coyne says the problem is not any conflict of interest, but the possibility of an abuse of power. Paul Wells notes the report is another reminder to Trudeau that his is a job where he makes decisions that have consequences, which he may not seem to grasp.

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Roundup: These aren’t the bots you’re looking for

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The discussion of misinformation, “junk news,” and bots have been going around a lot, as have the notions of what journalists can and should be doing to fact-check these things. To that end, here’s a thread for thought from Justin Ling about how this can be working against us in the longer term:

And national security expert Stephanie Carvin adds a few thoughts of her own, to contextualize the problem:

https://twitter.com/StephanieCarvin/status/1161424183185854464

https://twitter.com/StephanieCarvin/status/1161424186214158336

https://twitter.com/StephanieCarvin/status/1161424188500058112

https://twitter.com/StephanieCarvin/status/1161424197408702465

Chris Selley. meanwhile, respectfully suggests that if the government is so worried about online misinformation, that they stop pushing it themselves with their own particular bits of spin and torque that plant the same kind of false notions and expectations in people’s minds – and he’s absolutely correct.

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