Tag Archives: Euthanasia

Roundup: Everyone’s an expert

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More amendments to C-14 in the Senate, and the very real threat from senators that they would rather veto a bad law (such as the bill as originally drafted) than let it pass and have to head back to the courts, is prompting everyone to consider themselves an expert on the Senate and how to reform it. After days of clutched pearls by pundits and the odd bit of praise (such as Martin Patriquin’s grudging admission that the Senate is a necessary evil), we’re also starting to get some pretty bizarre pieces out there, like one from iPolitics, where they got a mining company CEO to weigh in on reforming the chamber.

No, seriously.

Apparently, according to this “expert,” Trudeau has gotten it all wrong by creating a situation with “no enforceable rule,” and apparently we’ve never had a situation in the past 149 years where bills bounced back-and-forth between the chambers. Err, except that there have never been real levers by which a Prime Minister could control the chamber, only sentiment on the part of senators in his or her caucus, and we’ve had plenty of situations where bills went back-and-forth, including to having conferences between chambers (a situation which is unwieldy in the current configuration of the Senate). And while Trudeau has made mistakes, he is not to blame for the Senate’s actual constitutional powers, which are currently being demonstrated.

But wait – there’s more!™

Our CEO “expert” says that the solution is not Triple E (thankfully), but rather to reduce senators’ term limits to 12 years, to give provinces a veto on their nominees to represent them, and to ensure that a nomination panel ensures that “a new Senate is younger, more representative and better qualified for the work by credentials and life experience.”

Term limits are a solution in search of a problem because they reduce institutional independence. The problem, identified in the Ontario factum to the Supreme Court reference, is that a senator nearing their term limit can start to curry favour with the government in hopes of a post-Senatorial appointment to a tribunal or diplomatic posting. By ensuring that their end date is age 75, it scuppers those plans and keeps Senators from sucking up. Provincial vetoes? Well, senators are not there to represent provincial governments. They are not even technically representing provinces, but rather regions, and their representation tends to be for minority communities, be they linguistic, ethnic or even religious, which was the express purpose for why the Senate was built in the way that it was. And demands for a younger Senate clash with the desire to get accomplished Canadians to serve in its ranks toward the end of their careers so that they can draw on their decades of experience, and if you look at some of the qualifications of our current senators, they are on the whole a very accomplished group indeed (some exceptions apply).

So rather than get some CEO to bloviate without any actual institutional knowledge or awareness, perhaps we should all brush up on our civic literacy and learn about the chamber as it currently exists before start weighing in on how to fix something that is not actually fundamentally broken.

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Roundup: Squeamish MPs and the problems they cause

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So many pearls got clutched yesterday on a couple of topics that, while unrelated, actually have a lot more in common than one may think. The Supreme Court ruled yesterday that the legal definition of bestiality must include penetration (with only Justice Abella dissenting) based on its common law definitions going back years. It was a case that involved the sexual abuse of teen girls, but if you judged by the headlines and the reactions on social media, it was a number of bizarre over-readings of what the ruling was, as though they ruled it legal rather than saying that there is a hole in the law because MPs didn’t properly update it when they had a chance. And this is where this starts to overlap with what else is happening.

As you may have guessed, the pearl-clutching amongst the pundit class carries on over the Senate amending bill C-14 (I swear that Michael Den Tandt has clutched his pearls so tightly that he’s cut off the flow of oxygen to his brain) and the “suddenly assertive” Senate (it’s actually not, but rather it has a couple of genuinely problematic bills before it), and while I won’t repeat yesterday’s civics lesson, let me say that the Supreme Court decision around bestiality is exactly the kind of object lesson that the assisted dying legislation could easily become.

Let’s face it – MPs don’t like to deal with tough issues. When the abortion laws they tried to pass post-Morgentaler decision was defeated, they didn’t make a second attempt. When they passed “temporary” prostitution laws in the 1980s to deal with a specific public nuisance issue, they didn’t return to the issue as promised to deal with it until the Supreme Court struck them down in the Bedford decision. We saw yesterday morning with the bestiality case that where MPs should have dealt with the issue when they changed other laws around the issue in the 1980s, they didn’t until the Supreme Court had to render a decision that pointed out the loophole and a sexual offender had two charges against him dropped rather than the court make up a new law holus bolus. And now there’s doctor-assisted dying. The Court had very good reasons when they made the Carter decision to insist on a timeline, which MPs have been balking about because they don’t want to deal with it. When the Prime Minister defends the conservative nature of C-14 with the excuse that it’s the “first step” of a longer conversation, I don’t actually trust that there will be a second step because MPs are too squeamish to deal with tough problems. And that’s exactly why I think the Senate is right to rip the band-aid off right now and force the government to actually deal with the whole issue as the Supreme Court laid it out. And yes, the government is going to grumble and say they don’t want to accept the amendments, but I also think that it’s part of the narrative of reluctance, where they can then hide behind the Senate as having “forced” them to accept the changes, so that they have political cover when interest groups confront them during the next election. But we’ve seen this problem of MPs not wanting to do their jobs time and again and the problems that it eventually causes. And if it means that the Senate has to be the grown-ups and make them deal with it this time, so be it.

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QP: Genocide and refugees

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Despite it being Thursday, there were no major leaders in the Commons today, which is a disappointing slide back to the poor attendance record of the previous parliament. Denis Lebel led off, referencing their opposition motion on calling ISIS a genocide and demanded support for it. Pam Goldsmith-Jones responded with the government line that the declaration is not a political one but a legal one, and it needed to have the endorsement of the International Criminal Code. Lebel moved onto the possible sole-sourcing of Super Hornets, for which Harjit Sajjan reminded him that the Conservatives were about to sole-source the F-35 fighters, while he had not yet made a determination. Lebel demanded a transparent process, and Sajjan reiterated that no decision was made. Andrew Scheer accused the government of playing politics with military equipment, and Sajjan snapped back that he has been in combat. Scheer then returned to the declaration of ISIS as a genocide, and Goldsmith-Jones repeated her previous answer. Peter Julian led off for the NDP, calling out the government on C-14’s constitutionality, and Jody Wilson-Raybould insisted that they came to the right balance. Julian and Ruth Ellen Brosseau said that the Senate was making the amendments that they had proposed, and to Julian, Wilson-Raybould repeated her answer while Jane Philpott responded to Brosseau that she hoped the Senate would pass it. Brosseau repeated her question in French, and Philpott reiterated that she hoped the bill would pass expeditiously.

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Roundup: Amendments are not some power grab

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After hours of debate, the Senate passed the first amendment to the assisted dying legislation to remove the definition “reasonably foreseeable death” and replace it with the language from the Supreme Court’s decision in Carter, and immediately the pundit class erupted in cries of horror and outrage that how dare an unelected body dare to touch the precious words of the elected House of Commons, and that this newly emboldened Senate was dangerously overstepping its bounds going forward.

Oh. Please.

It’s like any hint of context went out the window when it comes to this particular bill, and the fact that you have a Supreme Court of Canada decision that it’s supposed to be in answer to (not that parliament needed to draft a law, mind you). There are serious concerns about the constitutionality of this bill. MPs in the Commons believed it, you have a lower court judge in Alberta that believed so when crafting a judgment around an assisted death request and how the state of this legislation wouldn’t conform to the Supreme Court decision, and now Senators are doing their constitutional duty of weighing the constitutionality of a piece of legislation, and quite rightly, they find it wanting. This is why the Senate exists, and what the “sober” part of “sober second thought” means – that freed from the constraints of having to worry about what voters will think, they can take a more clear-headed look at these controversial bills. And if you get hung up on the “unelected” part, apparently the policy and legislative roles taken not only by the Supreme Court or the various administrative tribunals that exist in this country also should keep you awake at night. (Also, their democratic legitimacy comes from being appointed by a government who has the confidence of the chamber, but you know, it’s not like Responsible Government is anything other than a minor detail).

https://twitter.com/emmmacfarlane/status/740737440231641088

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So what happens next? Once the remainder of the amendments are decided upon one way or the other, the report gets sent back to the Commons, which they will then debate and amend at their pleasure – you know, like democratically elected legislators are supposed to do. The Justice Minister doesn’t sound keen on these amendments “without more safeguards,” but I also take this with a grain of salt because I do believe the government is setting up this narrative of reluctance so that they can show that they have been “forced” to accept what the Supreme Court has laid out by a Senate that could veto the bill if they find it unconstitutional. Because remember, MPs who have electoral considerations don’t like to be seen to take bold steps with difficult decisions when it’s easier to hide behind another body who can take the blame for them. And it’s not like MPs aren’t used to giving abdicating all manner of their roles to other unelected bodies (the courts, Officers of Parliament, and the Senate), this just being one more in a long line of examples. It’s one more reason why I find this concern trolling by the pundit class all the more difficult to swallow. If MPs were actually serious about their jobs, then it wouldn’t be incumbent upon the Senate to be the grown-ups of parliament, and yet here we are.

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Roundup: Further conversations on constitutional conventions

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In response to my blog post yesterday on the our unwritten portions of our constitution being just as important as the written parts, I had a lot of response over the Twitter Machine, many trying to argue that parties were not an integral part of the system, but historian Christopher Moore took the time out to chastise me for the use of the term “constitutional conventions” when it comes to Responsible Government. But the problem is that Moore is actually wrong in what he tried to argue. To wit:

Smith should look at Section 54 of the Constitution Act, 1982, which sets out in plain language that only the cabinet can make and propose the raising and spending of money. That is what defines the role of the cabinet of ministers. It budgets; it plans the getting and spending.  But then there is Section 53, which bluntly states that only the House of Commons can give approval to the cabinet’s proposals for getting and spending.

A few problems with this. First of all, he’s citing the Constitution Act, 1867 and not 1982, and looking at Section 54, there is no mention of cabinet at all:

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.

As is consistent in our constitution, there is no mention of a PM, or cabinet, because they are part of Responsible Government, which as I pointed out yesterday are part of the unwritten conventions that we inherited from the UK. As is consistent with the rest of the written constitution, only the Governor General is mentioned. And here’s the kicker: the unwritten constitutional convention is that under Responsible Government, the Crown – by way of the GG – acts on the advice of ministers, and for that to happen, ministers must hold the confidence of the Chamber. Ministers via the convention do all executive government in the Queen’s name. It’s not written because it’s a convention, per the preamble, as a constitution being similar in principle to that of the UK. Moore’s contention that it’s not a convention and that it’s embedded in the text does not hold. So while I’m happy to be corrected when I get it wrong (and it happens), this is not one of those times. Also, if you’re going to quote the constitution at me, then quote the constitution. And as for those people on the Twitter Machine insisting that Responsible Government can function without parties, well, it’s possible in a theoretical world with vampires and unicorns, but it will never happen in real life, so trying to disprove it to make a point is pretty much moot. The practice of parties developed for a reason. Maintaining confidence without them is a fool’s errand.

With many thanks to Philippe Lagassé for talking this issue through with me.

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QP: In other news…

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It was very nearly a full house for QP, including all of the leaders. Rona Ambrose led off, mini-lectern on neighbouring desk, once again demanding an electoral reform referendum. Trudeau said that he did trust Canadians to discuss complex and nuanced issues, which was why he wanted an open consultative process. Ambrose switched to French to lament the current government’s understanding of the military and his choice in the Super Hornets. Trudeau in turn lamented the sorry state of the Forces left by his predecessors and their botched procurements. Ambrose asked again in English, and got the same answer. Denis Lebel was up next, decrying the lack of progress on a new softwood lumber agreement. Trudeau responded that the previous government neglected the file, focusing fruitlessly on pipelines that went nowhere. Lebel disputed Trudeau’s characterisation, but Trudeau insisted they immediately sought to restore positive relations with the Americans to better deal with these irritants. Thomas Mulcair was up for the NDP, and listed off the opposition to C-14, and Trudeau called the bill an “important step” but that it struck a balance with the protection of the vulnerable. Mulcair insisted it was as false choice, and accused the government of behaving exactly like their predecessors. Trudeau begged to differ, noting the Conservatives ignored the issue, and he praised the work to date. Mulcair demanded that the government at least take amendments from the Senate, and Trudeau said that he looked forward to what the “newly independent and less partisan” Senate would bring forward. Mulcair accused the bill of going against the Charter, and Trudeau reiterate the balance being struck.

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Roundup: Constitutional conventions are constitutional

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There was another example of the shocking level of civic illiteracy in our elected officials yesterday as Green Party leader Elizabeth May again trotted out the canard that political parties aren’t in the constitution. She was making a perfectly good point of privilege around the way that independent MPs and those from not officially recognised parties are being adversely affected by rules changes that are being carried forward from the last parliament, and that’s fine, but she’s shockingly wrong about the constitutional status of parties. Why? Because while political parties are not literally in the Constitution Acts of 1867 or 1982, they are part of the grounding framework of our system of Responsible Government, which is in and of itself a constitutional convention – part of our unwritten constitutional inheritance from the United Kingdom. It shouldn’t need reminding but apparently it does because apparently nobody learns civics any longer, but constitutional conventions are constitutional. In fact, they are just as enforceable as elements of the written constitution. And lo and behold, the preamble to the 1867 Act is:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom

This is exactly where our Responsible Government framework lies. The UK has an unwritten constitution, and its constitutional conventions have stood the test of time, and this is precisely why May and others who follow her logic are dead wrong. Parties are at the heart of Responsible Government because it’s how a government gains and maintains confidence. The system simply cannot hold with hundreds of “loose fish” all vying for attention and reward. (If you try to bring up the party-less territorial governments, smack yourself upside the head because you simply cannot scale up a consensus model from 19 members in NWT or 22 in Nunavut to 338 in Ottawa. It is a complete impossibility). Does that mean that we don’t currently have problems with the powers accumulated by party leaders? No, we absolutely do, but that’s also because we tinkered with the system of selecting those leaders, presidentializing them with massive membership votes rather than caucus selection that keeps them accountable in the Responsible Government tradition. But parties are absolutely essential to the functioning of our parliamentary system, and the fact the written portions of our constitution are silent on that fact is indicative of absolutely nothing. If one relies solely on the written portions and not the constitutional conventions, they are wholly ignorant of our system of government, and need to be called out as such.

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QP: Memories of Dion positions past

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After the revelries of the weekend, most everyone was present, except Thomas Mulcair. As he so colourfully put it at the Gallery Dinner, he really doesn’t care anymore. Rona Ambrose led off, and immediately laid into the referendum question. Justin Trudeau reminded her that the majority of Canadians voted for parties that wanted change, and that he looked forward to the strong voices that would be heard on the committee. Ambrose raised the issue that Stéphane Dion said in 2012 that a referendum would be necessary on electoral reform, and Trudeau said that they needed committee consultation on such a complex question. Asking again in English, Trudeau gave a more impassioned defence of a robust consultative process. Alain Reyes made the demand for a referendum again in French, and got much the same response. Marjolaine Boutin-Sweet led off for the NDP and raised the Liberal Senate leader who did not agree with C-14, and would the government listen to him. Trudeau pointed out that there was no greater endorsement of their reforms to the Senate than the NDP endorsing senators’ work, and then basically admitted that the bill would come back to the Commons with amendments. On a follow-up in French, Trudeau again said that they would look forward to amendments. Murray Rankin took over, raising more objections to the bill, and Trudeau kept saying that they consulted widely and looked forward to the bill coming back.

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Roundup: Monarchial stability

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In an interview with CTV’s Question Period about his upcoming trip to the Queen’s official 90th birthday celebrations in London, His Excellency the Governor General credited the monarchy with holding Canada together, and noted that constitutional monarchies are among the most stable of all forms of government – and he’s right. Predictably, however, the republicans among us got right offended, saying that Canadians deserve some of the credit, and it was simplistic, patronising and wrong to say that Canada would “disintegrate without a London-based, hereditary Head of State.” The problem with this line of reasoning is that it ignores some of the counterfactuals, and what we see in countries where heads of state are elected and who are largely partisan in nature. The stability of those countries is indeed an issue in many cases, and social progress is generally further behind than most constitutional monarchies, which have a demonstrated tendency not to be as conservative or reactionary as one might think given the importance of maintaining those traditions. But the most important reason why constitutional monarchies like Canada’s tend to be more uniting is that they don’t rely on a partisan head of state to be the uniting figure around which all of the pomp and circumstances happens, and you don’t have people going “he’s not my president” and so on. It’s not the partisan head of state’s face on postage stamps and in embassies, or who receives military salutes. Ours is a system designed to keep leaders from developing cults of personality and keeps their ambitions in check because they do not hold power – they merely exercise it on behalf of the one who does (that being the monarch). It’s also why it’s concerning that our prime ministers in this country have been getting presidential envy, and why this “First Lady” business around Sophie Grégoire Trudeau is a problem because it goes against our particular constitutional monarchical order. Having someone be above the political fray has benefitted our society and our culture, and it can’t be easily dismissed as being simple or patronising. Systems help to shape societies, and our system has shaped ours for the better. We can’t simply ignore it out of some childish sense of spite about how and why that system works the way it does.

His Excellency also noted that Trudeau’s children help bring Rideau Hall “alive,” and he reminded us that his own children used to play with Pierre Trudeau’s children when they were the same age, living in Montreal nearby one another.

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Roundup: Adjourning until Tuesday is not a problem

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Expect a weekend full of concern trolling about the Senate not having passed C-14 before Monday’s Supreme Court-imposed deadline, and people shaking their head or clutching their pearls that the Senate chamber is not sitting on Monday. I fully expect a pundit or three to wonder aloud why the Senate isn’t sitting Monday, and demands that senators do their jobs like they’re paid to do. And if you hear anyone say something boneheaded like that, smack them upside the head and remind them that the bill is at committee, which will be sitting Monday and Tuesday, and there’s no point in the full Senate sitting on Monday to pass the bill when it’s at committee, and no, they’re not going to rush that process any more than they already are. Meanwhile, if there’s anyone to blame for it not passing on time, it’s the House of Commons, and the Liberals playing stupid games with the debate schedule and not bringing forward the bill for debate so that votes could happen more expeditiously (and yes, their attempts to control that debate calendar with tactics like Motion 6 failed spectacularly before our eyes, but that doesn’t explain why they didn’t bring the bill forward on subsequent days either). If people think that the Senate should just rubber-stamp a bill like this one without any actual debate or scrutiny, well, they need to take a remedial civics course because that’s not why the Senate exists. And yes, this is exactly the kind of situation for why we have the Senate, where a bill that is constitutionally dubious is going to get a more thorough hearing than it did in the Commons, and we are likely to see some more substantive debate on its merits and particularities so that even if it does pass in its dubious state, there is a parliamentary record that the courts can then use in their deliberations when the matter inevitably comes before them.

Add to that, this is a case where we are likely to see amendments that will head back to the House of Commons, which put the whole timetable into question. Part of what is going to be at issue is where the votes will lie in the Senate for which amendments – the ones from the more socially conservative who want greater restrictions, or those who want to see at minimum the “reasonably foreseeable death” criteria struck out in favour of the language in the Carter decision. I suspect the latter will have the more votes and we will see those amendments head to the Commons, where we will see if the government decides to dig in its heels or not given that it’s a criticism that has fairly broad support in the Commons about the bill. It also gives the government a bit more political cover in that the Senate is “forcing” them to adopt those measures – particularly that the Senate is much more independent and the Liberals have given up any levers therein to try and bully through bills – so they can insulate themselves from criticism that they have gone too far. I have a sneaking suspicion that it’s why the ministers keep insisting that they are open to amendments when they rejected them all in the Commons – because putting the blame on the Senate is the next best thing to putting the blame on the courts. If they do decide to dig in their heels and we reach an impasse between the chambers, there is always the possibility of a conference between them, which Kady O’Malley has dug up the procedural details for here:

If you missed the second reading debates in the Senate, they’re available here, and they are absolutely substantive and far beyond anything we heard in the House of Commons, and dealt with the real substance of the bill rather than the usual “This is deeply personal/what about palliative care?/conscience rights, conscience rights, conscience rights” narrative that we heard ad nauseum.

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