On cannabis legalisation day, as all the media was focused on line-ups at pot shops, the work of Parliament carried on. Andrew Scheer led off, curiously raising the court case of Vice Admiral Mark Norman and the refusal to turn over secret documents to his defence team. Justin Trudeau said that this was before the courts, and would comment no further. Scheer tried again in English, and Trudeau reiterated his response. Scheer demanded the documents be released, not a comment, and Trudeau repeated his responses, and they went yet again, and again. Guy Caron was up next, and wanted criminal records for pot possession to be expunged rather than pardoned, and Trudeau gave a speech about how prohibition didn’t work and why legalisation and regulation was a better path — but he didn’t answer the question. Caron switched to French to ask the same again, and this time, Trudeau said their plan was for rapid pardons. Matthew Dubé picked up on the same demand for expungements, and Trudeau spelled out that these were different than the LGBT expungements because those laws were an instrument of discrimination. Dubé returned in English by saying the war on drugs is racist, and Trudeau said they recognised that fact, but insisted that the pardons would be free and fast.
Tag Archives: First Nations
Roundup: Protecting parliament from court interference
The decision in Mikisew Cree First Nation v. Canada (Governor General in Council) at the Supreme Court of Canada yesterday has been described in some cases as relieving the government of the Duty to Consult Indigenous communities when preparing legislation, but I think some of that misses the very real issue of the separation of powers and parliamentary privilege – particularly when the news channels would immediately trot out Indigenous lawyers to say that this was an infringement on the Duty to Consult, and that it was a “missed opportunity” to get legislation right, and so on. (And lo and behold, here’s Pam Palmater to argue just that, and I find her analysis flawed). In fact, the CBC piece on the decision buried the aspect about separation of powers at the very bottom of the piece, despite the fact that it’s at the heart of the ruling.
To recap, the separation of powers is the doctrine that the executive, legislative, and judicial branches have different roles and you shouldn’t have them meddling in one another’s business, which is exactly what the case was proposing to do – to allow the courts to weigh in on legislation before it’s been passed, or in this case, even been drafted. That’s a huge overreach by the courts, and a giant infringement on parliamentary supremacy. Why that’s especially important is because we’re seeing a growing movement of people who try turning to the courts when they lose at politics, which is very bad for democracy. (In fact, it appears that the Mikisew are engaging in a bit of that very thing here, objecting to the changes to the changes to environmental assessment legislation). If the Mikisew had their way, it would allow for the courts to weigh in on the legislative process at all points, which not only makes legislation impossible, but it means that parliament can no longer govern its own affairs, which is a very bad thing. Of course, there were many differences of opinion between the justices as to how this all shakes out, but they all agreed that the courts have no role in interference in the legislative process, and I don’t think that was highlighted nearly enough.
https://twitter.com/cmathen/status/1050384273394622464
https://twitter.com/PhilippeLagasse/status/1050384955954483200
https://twitter.com/PhilippeLagasse/status/1050386530752032768
https://twitter.com/PhilippeLagasse/status/1050389501523050496
https://twitter.com/PhilippeLagasse/status/1050390172947296257
https://twitter.com/PhilippeLagasse/status/1050393327521038336
https://twitter.com/EmmMacfarlane/status/1050397264298950657
This being said, they did affirm that the Duty to Consult is still necessary – just that it didn’t need to be mandatory before drafting legislation. Smart governments who take the Duty seriously would do so in the planning stages of legislation, and there are opportunities to engage in consultation during the legislative process, particularly at committees, when amendments can be proposed that would assist with accommodation. Emmett Macfarlane also suspects that we could see the Senate take a more active role in ensuring proper consultation as it weighs in on bills as well, which could be an interesting evolution in the Senate’s activities as we move forward with its “new” characteristics.
https://twitter.com/EmmMacfarlane/status/1050391764069019649
https://twitter.com/EmmMacfarlane/status/1050392582931369984
https://twitter.com/EmmMacfarlane/status/1050393088823185408
Meanwhile, Philippe Lagassé digs into Justice Brown’s reasoning around the Crown’s distinct capacities. Here is a thread from Emmett Macfarlane on his thoughts on the decision. And here’s University of Ottawa law school vice dean Carissima Mathen to explain the decision.
Roundup: Yet more dubious suggestions hosted by the GRO
Over on the Government Representative Office website, Government Leader in the Senate – err, “government representative” Senator Peter Harder has been hosting suggestions from former senators of late on how to “reform” the Senate. Because of course he has. And not all of the suggestions are particularly helpful, or good for the Senate in the long run. The latest example is from Senator Pierre De Bané, who was a senator for thirty years and an MP before that. De Bané seems to think that what the Senate needs more than anything is the independent oversight body that the Auditor General wants instituted before voluntarily neutering its powers by passing a motion to only use a suspensive veto. Because hey, if it’s good enough for the UK…
I’ve written numerous times that the notion of an independent oversight body risks the senate’s status as a self-governing parliamentary body. I would be okay with an audit committee that includes outside members but is still made up with a majority of senators in order to ensure that it remains in Senate control because it’s important that our parliamentary bodies retain self-governing status. Otherwise we might as well turn power back over to the Queen, because we obviously have no business governing ourselves. I’m also forever baffled by the notion that we should neuter the Senate’s ability to exercise hard power and defeat a bad government bill when necessary. It’s part of their necessary duties to hold government to account, and before you say that it’s good enough for the House of Lords, the Canadian Senate is a vastly different body than the Lords, with a very different history, and the Senate was never the primary legislative body as the Lords was for centuries. These are differences that can’t be papered over.
De Bané’s other suggestion is that the Senate start creating a series of special committees tailored to senators’ special interests to…do advocacy work, apparently. I’m not opposed to senators undertaking an advocacy role on issues that are of particular interest to them, I am less keen on the proliferation of special committees because I worry that it will draw the focus away from the actual legislative responsibilities of senators – especially in an environment with independent senators who are beholden to nobody and who aren’t able to be corralled into getting work done. We’re already having problems getting bills passed in a timely manner because the leadership within the Senate refuses to do things like negotiate with one another – now imagine that these senators are otherwise engaged with busywork of their own interest rather than with the boring work of scrutinising legislation or holding government to account. I do fear that creating an environment where personalized committees can proliferate will have a detrimental effect on the Senate overall, and I’m a bit surprised that a former senator doesn’t see this possibility.
Roundup: Not appealing, just consulting
First thing yesterday morning, the federal government announced that they were proceeding with restarting consultations with First Nations affected by the Trans Mountain Expansion pipeline, and that they had tasked former Supreme Court of Canada justice Franc Iacobucci to oversee the process. Iacobucci has done a great deal of work around the Duty to Consult in recent years, as this report that he wrote with law firm Torys LLP demonstrates, along with work he’s done with Ontario over the underrepresentation of Indigenous people on juries in the province. Indigenous groups in the region have responded with some optimism, but are also warning that these consultations can’t come with a predetermined outcome if they’re to be meaningful (which may be too far to go given that the government has stated that this project will go ahead). Some of those Indigenous communities are also looking at the fact that this process could allow them to talk more amongst themselves.
https://twitter.com/coreyshefman/status/1047512242109997056
https://twitter.com/coreyshefman/status/1047512244303663104
https://twitter.com/coreyshefman/status/1047512246660808704
https://twitter.com/coreyshefman/status/1047512248716087297
Meanwhile, Rachel Notley and Jason Kenney (among others) are bellyaching that the government has opted not to appeal the Federal Court of Appeal decision to the Supreme Court of Canada, and yet not one of them has articulated what the error in law they are looking to contest would actually be, which is kind of a big deal if they think the Court will hear it. It’s also not clear that an appeal would get them any clarity anytime soon, given that the Court usually gives about six months between granting leave and hearing the case in order to provide time for submissions, and then a decision could take another six months at least – possibly more if it’s a contentious issue, like this one is.
This is really important for those imagining there is a legislative 'answer' to duty to consult. It's a legal interpretation of the constitutional duties of the Crown, so the gov't can't legislate the equivalent of yelling "not it!" on the duty. https://t.co/MWkZJSjWAN
— Andrew Leach (@andrew_leach) October 3, 2018
QP: Ambulance chasing politics
Following a morning of announcements including that of a renewed consultation with Indigenous communities on the Trans Mountain Expansion, all of the leaders were present for this week’s exercise of Porto-PMQs. Andrew Scheer led off, mini-lectern on desk, and wouldn’t you know it, Scheer led off on the latest outrage around Tori Stafford’s killer, and the coming vote the Conservatives are forcing on it. Justin Trudeau took a script to say that she was still in a medium security facility, and that the Act doesn’t allow the minister to intervene, but they have undertaken a review of the system. Scheer switched to dairy concession in the new NAFTA deal, and Trudeau took up another script to say that they have promised compensation to producers, and that this was just like ten TPP deal the Conservatives organised and celebrated. Scheer said that the TPP was done in exchange for other concessions unlike this deal. Trudeau dropped his script this time to praise the deal, and especially a list of Conservative luminaries. Scheer shot back that Trudeau needed all the help they could get, then railed about prescription drug costs raising because of IP provisions in NAFTA. Trudeau noted that the Conservatives never did anything about drug prices when they were in charge, and Scheer tried one last time to worry about steel and aluminium tariffs, and Trudeau took up a script again to read from Stephen Harper’s memo urging capitulation. Guy Caron then stood up for the NDP, and he railed about the Liberals apparently rewriting history around the elimination of Chapter 11 in the old NAFTA. Trudeau praised its elimination, and when Caron tried again in English, insisting that they were misleading the House over it. The Speaker admonished Caron for the insinuation, and he refused to apologised on the first time, but gave a grudging apology on the second time, to which Trudeau reiterate that they were pleased with Chapter 11’s elimination. Romeo Saganash then got up to accuse the government of not properly consulting with Indigenous groups, and Trudeau stated that they recognised there is a right process that they would follow. Saganash switched to French to insist that there is a right for those groups to say no, and Trudeau reiterated that there are different communities who want and don’t want projects, and they would do their best to ensure their concerns are heard.
Caron getting admonished for saying Trudeau is willfully misleading the House. #QP
— Dale Smith (@journo_dale) October 3, 2018
Roundup: All about the New NAFTA
So, now that we have some more information about just what is in this renewed NAFTA agreement (no, I’m not going to call it by Trump’s preferred new title because it’s ridiculous), we can get some better analysis of what was agreed to. Here’s a good overview, along with some more analysis on the issues of BC wines, online shopping, intellectual property, Indigenous issues (though not the whole chapter they hoped for, and the gender chapter was also absent), and an oil and gas bottleneck issue whose resolution could now save our industry as much as $60 million. There is, naturally, compensation for those Supply Management-sector farmers who’ve had more access into the market granted (though that access is pretty gradual and will likely be implemented in a fairly protectionist manner, if CETA is anything to go by). There is, however, some particular consternation over a clause that gives the US some leverage over any trade we may do with a “non-market” country (read: China), though that could wind up being not a big deal after all and just some enhanced information sharing; and there is also the creation of a macro-economic committee that could mean the Bank of Canada may have to do more consultation with the US Federal Reserve on monetary policy (though I have yet to find more details about this change). But those steel and aluminium tariffs that Trump imposed for “national security” reasons remain, as they were always unrelated to NAFTA, and their removal will remain an ongoing process.
With the news of the deal also comes the behind-the-scenes tales of how it all went down, and we have three different versions, from Maclean’s John Geddes, the National Post’s Tom Blackwell, and CBC’s Katie Simpson.
https://twitter.com/InklessPW/status/1046750795461357568
Meanwhile, Andrew Coyne posits that the damage in this agreement is slight but there was no hope for a broader trade agreement given that there were protectionists on both sides of the table. Likewise, Kevin Carmichael notes that the deal limited the potential harm that was looming, but didn’t really break any new ground. Andrew MacDougall says that the deal gives Trump the win he needed before the midterms, while it will also make it hard for Andrew Scheer to stick anything on Trudeau around the deal. Chantal Hébert agrees that if Trudeau loses the next election that it won’t be because of this trade deal. Paul Wells, meanwhile, takes note of how the Conservatives are playing this, trying to lead observers by the hand to show them that Trudeau “failed” in these talks, while glossing over all of the actual context around why these negotiations happened in the first place.
QP: Medium-security condos
Nearly a full day after Donald Trump’s rambling press conference in which he made threats to NAFTA, and both Justin Trudeau and Andrew Scheer were present to face off. Scheer led off in French, and asked why Trudeau didn’t ask for a meeting with Trump in New York. Trudeau took up a script and stated that they were looking for a good deal and not any deal. Schemer switched to English to ask for assurances that there would be no new tariffs next week. Trudeau, still with a script, reiterated that they were looking for a good deal and that the Conservatives would sign any deal put in front of them. Scheer switched topics, and returned to the issue of Tori Stafford’s killer, and Scheer reminded him that she was moved from maximum to medium security under the Conservatives in 2014, and that the Conservatives themselves said that they don’t have the power to affect the security classification of prisoners. Scheer insisted that Stafford’s killer was being moved from behind razor wire and bars to a “condo,” and that the Act gives the government the power to Act. Trudeau accused Scheer of playing word games of his own, and when Scheer tried again, Trudeau reminded him that she remains in medium security. Guy Caron was up next for the NDP, and worried about Energy East being revived, and Trudeau reminded him that the company withdrew their proposal because of market conditions. Caron switched to English to worry about CSIS spying on environmtal activists, and Trudeau reached for a script to say that they respect the right to protest but that the complaints about CSIS were looked into by SIRC and dismissed. Romeo Saganash wanted the entire Cabinet to meet with Indigenous knowledge keepers to understand the meaning of free prior and informed consent, and Trudeau said that they were working forward reconciliation and meeting with First Nations who both supported and opposed projects. Saganash asked again in French, and Trudeau reminded him that not all Indigenous communities oppose projects.
Scheer claims that Tori Stafford’s killer is being moved “to a condo.” #QP
— Dale Smith (@journo_dale) September 27, 2018
QP: Playing politics with a child murderer
While the PM was fresh off the plane from New York to attend QP, just in time for his photo-PMQ exercise. Andrew Scheer led off, reading some condemnation about a child murderer being transferred from a federal prison to an Aboriginal healing lodge. Trudeau said that they have asked officials to review the decision. Scheer repeated the question in English, demanding action and not a review, and Trudeau read the same response in English. Scheer demanded that the PM reverse the decision, and this time, Trudeau read a response from Steven Blaney when he was minister in 2013 about the government not controlling the security classification. Scheer insisted that the government had tools to use to reverse the decision, to which Trudeau said that she was always classified as medium security, and they were ensuring that people do their jobs. Scheer laid on the fears that parents have about this kind of killer, and Trudeau said he would let Canadians make the determination as to who is politicising the situation, and that the prisoner in question remained in a medium security facility. Ruth Ellen Brosseau led off for the NDP, pointing to outstanding gender inequities in the Indian Act. Trudeau responded that they had taken great steps, but still had work to do. Rachel Blaney repeated the question in English, and this time Trudeau read a statement saying that the numbers in the media were inflated and incorrect, but they were still working to reform the Indian Act. Niki Ashton demanded housing for First Nations, and Trudeau said that they were moving forward to correct the situation with $8.6 billion in investments, and that their forthcoming National Housing Strategy has an Indigenous component. Marjolaine Boutin-Sweet repeated the question in French, and Trudeau reiterated the same response.
Senate QP: Jody Wilson-Raybould is still so proud
After the day’s repetitive QP in the Other Place, the justice minister, Jody Wilson-Raybould headed down the hall for Senate Question Period. Senator Larry Smith was up first, asking about the decision-making process to approve only one THC testing device, which many police forces are opting not to buy. Wilson-Raybould replied that they had expertise from the Canadian Society of Forensic Scientists, and that while it was the first device approved, it was not the only tool that law enforcement officers have, which was why they invested in field training for drug detection. Smith asked if there were other devices on the way, and Wilson-Raybould offered the backgrounder on the one approved device and said that she was open to approving others as they are tested.
QP: Not going to talk about this case
As the PM was again at the UN, Andrew Scheer did decide to show up today, and he led off QP with the question on the convicted murderer getting veterans benefits, which was the subject of their Supply Day motion. He apparently didn’t get the news that the department had already withdrawn benefits in cases of incarcerated family members, likely meaning that this case was included. Seamus O’Regan said that he heard back from his officials, and he as directing them to ensure that any treatment for the family members of veterans was related to the veteran’s service, and that extenuating circumstances like this one would be reviewed by senior officials. Scheer changed topics, and demanded the government provide a guarantee on building the Trans Mountain expansion pipeline, to which Amarjeet Sohi said that the plan Scheer laid out yesterday disregarded the courts and the consultations with Indigenous communities. Scheer demanded enabling legislation, but Sohi talked down the Conservative record. Gérard Deltell got up next to demand a date for construction in French, to which Sohi said they were going to move forward in the right way. Deltell demanded legislation, and Sohi said that the previous government cut corners, which was why they didn’t get pipelines built to the “global market.” Guy Caron was up next for the NDP, and he railed about the plans for the Trans Mountain expansion, and Sohi said that they announced the marine protection plan and would annonce the rest shortly. Caron insisted that the government wanted to do away with consultations with Indigenous communities, and Sohi insisted that they were determined to get it right. Romeo Saganash accused the government of wilfully ignoring the rights of Indigenous peoples, and after an admonishion for his unparliamentary language, Sohi insisted that they would move forward in the right way. Rachel Blaney demanded the project be cancelled, but Sohi shrugged and said that they value the fact that there are diverse views on the project.
.@AndrewScheer might have missed this before #QP — but @CBCNS has this development: Veterans Affairs rescinds benefits to jailed relatives of veterans in wake of Garnier casehttps://t.co/xOW8MtlukX #cdnpoli
— J.P. Tasker (@JPTasker) September 25, 2018
Saganash: “Why doesn’t he just tell the truth and admit that he doesn’t give a fuck about Indigenous rights.”
The Speaker admonished him, and Saganash retracted the word. #QP— Dale Smith (@journo_dale) September 25, 2018