Tag Archives: First Nations

Roundup: A Northern SCC justice?

Posted on by

The government announced yesterday that they have begun the process for searching for the next Supreme Court of Canada justice, which it should be noted is almost record-breaking in how fast they got this particular process started, as normally it takes them six months to a year to get a process even started, by which time the vacancy has happened and terms need to be extended (which isn’t possible in this case). And while this is notable in and of itself, there was something else notable – that they are explicitly looking for a justice from either the West or the North.

Why this is important is because it seems to demonstrate that they learned their lesson from the previous SCC appointment process, when they toyed with finding a justice who was not from Atlantic Canada despite it being a traditionally Atlantic Canadian seat that was vacant, and there was some pretty big uproar which they tried to pooh-pooh with talking points about how some of those federalist notions were perhaps a bit archaic and they were trying to find a bilingual justice (which was difficult for that region, even more so if they were trying to find someone Indigenous or a person of colour). That will be less of a problem in the West, but the fact that they also mentioned the North is a bit curious.

As it stands, some territorial cases, particularly at the appeal level, are heard in courts in provinces like BC or sometimes Ontario, because there simply aren’t enough judges and infrastructure in place to do the job up North. And while it’s not necessary that one be a judge to get a Supreme Court nomination (they must be a member of the bar, but can come from private practice or even a law school), it is a bit peculiar that they have expanded their search in such a way. It is the first time that such a consideration has been made, which is no doubt part of this government’s constant attempts to pat themselves on the back, and their language about the “custom of regional representation” still sounds a bit like they’re making it out to be less of an important deal than it is, which is a problem because the principles of federalism are a pretty big deal given how this country works. I would say that it also raises the possibility of raising hackles in the West because it could open them up to accusations that they’re depriving the West of representation on the Court (the West typically has two seats, one of which is currently held by Justice Brown from Alberta, so no, Alberta has no room to raise a fuss), but one could imagine that BC would very well make an issue of it if they felt like it. Granted, if they do find someone from the North, it could provide some greater perspective on the Court – or it could simply be yet another reason for back-patting. We’ll find out in a few months’ time when the decision is made. (And for the record, the plan is to name the new Chief Justice after the vacancy is filled).

Continue reading →

Roundup: A lack of scrutiny

Posted on by

While again noting that I don’t often write about provincial matters, sometimes they can be a microcosm or a vanguard of broader themes happening in different legislatures across the country, including the federal parliament, and this item out of Queen’s Park raises alarm bells because it is a telling sign. The province’s Financial Accountability Office – the provincial equivalent of the Parliamentary Budget Officer – tabled his annual report that essentially states that there’s not enough scrutiny happening within the legislature. And yes, that’s a very big problem.

While I am a bit surprised that his office is being underutilized, the fact that backbenchers aren’t doing the work of scrutinizing the actions of Cabinet – particularly on budget matters – is not unique to the province. Here in Ottawa, we see too many instances of MPs passing the Estimates with the barest of glances, and when ministers appear before committee to discuss them, they are generally bombarded with questions about issues of the day rather than what’s in the Estimates. That most of the scrutiny of the Estimates now happens in the Senate is Ottawa’s saving grace – something that provinces like Ontario can’t claim.

Part of the problem is that our civic literacy has so degraded that most MPs or their provincial counterparts (MPPs, MLAs, MNAs – style them how you will) don’t understand that their actual constitutionally mandated job is to hold the government to account by means of controlling the public purse. That, by definition, means scrutinizing budgets, the Estimates, and the Public Accounts. That MPs and their provincial counterparts don’t want to do that job – or at the very least are ignorant that it’s their responsibility – has meant the creation of more Officers of Parliament like the PBO, and the FAO in Ontario, to do that homework for them, and that’s a huge problem for the health of our democracy. But so long as MPs and their counterparts opt to stick their heads in the sand and play American lawmaker, spending all of their time and energy on private members’ business (when they’re not cheerleading for their particular leader), then our system suffers for it as governments aren’t held to account properly.

Continue reading →

Roundup: An astronaut for GG?

Posted on by

Despite some MPs are agitating for the next Governor General to be Indigenous, it looks like it’s going to be Julie Payette, former astronaut. Payette is a woman and francophone, which fulfils the Anglophone/Francophone alternation that has been the pattern since we started naming our own Governors General, and the government’s desire to have more women in top spots. That she’s not Indigenous will be criticised by some, but I suspect that it may actually avoid other headaches because I do wonder if an Indigenous GG may not find themselves in an inherent conflict of interest given the relationship with the Crown that Indigenous people have which is as sovereign people in a treaty relationship, and being the Queen’s representative has the possibility of being far more complicated once you dig into it. As well, there would likely be pressure on an Indigenous GG from other Indigenous communities to exert influence on the government, given that the understanding of Responsible Government and heeding the advice of the government of the day isn’t all that well understood, and would lead to a lot of disappointment. Meanwhile, here’s Philippe Lagassé on some other aspects of the GG that are worth thinking about.

https://twitter.com/pmlagasse/status/885286674468614146

https://twitter.com/pmlagasse/status/885289432747782144

https://twitter.com/pmlagasse/status/885290949588508672

https://twitter.com/pmlagasse/status/885291808942690305

https://twitter.com/pmlagasse/status/885292570997399554

https://twitter.com/pmlagasse/status/885294316247277569

https://twitter.com/pmlagasse/status/885295661742215168

https://twitter.com/pmlagasse/status/885296355324952576

https://twitter.com/pmlagasse/status/885297826862960640

While Paul Wells has a great piece about the message being sent with Payette’s appointment, Lagassé also makes a good point about how her appointment is being framed.

https://twitter.com/pmlagasse/status/885307090935451649

And this comment from Denise Donlon seems to sum up a lot of the sentiment I’ve seen:

https://twitter.com/donlon/status/885257880286486528

Continue reading →

Roundup: The Speaker’s clock

Posted on by

The CBC has a video segment released today talking to Commons Speaker Geoff Regan about the countdown clock in the Commons when it comes to things like Question Period, and how he enforces the 35-second rule for questions and answers.

While it’s a nice video explanation, and demonstrates that Regan will allow a few seconds’ grace when necessary, it does go to demonstrate part of what isn’t functioning with the way we’re doing things like Question Period – or even regular debate, for that matter. By enforcing strict clocks, we’ve incentivised a culture of filling that space rather than it being an upper limit. Even in QP, where it’s a simple yes-of-no question, the temptation to fill all 35 seconds with canned talking points usually wins out (though the three-word yes-or-no Mr. Speaker replies do occasionally happen and make my day). Also, the 35 second clock encourages ministers to read replies in order to ensure that they stay within the limit rather than going over – and that tends to lead to a greater reliance on talking points than substantive answers.

As I’ve written about several times, I think this video is a demonstration as to why we need to loosen the clock. I’ve also witnessed in Senate QP where there is no defined clock, where you can get far more substantive questions and answers (though the Senate Speaker does need to reign them in a bit – some senators will speechify during a question, and sometimes the visiting minister will ramble). But loosening the clock and empowering the Speaker to better manage that time – along with a ban on scripts – will go a long way to improving the flow of debate in the Commons, rather than the farce that we have today.

Continue reading →

Roundup: Lighting a fire under the minister

Posted on by

It’s been a year since the Supreme Court of Canada decision in Jordan, which set upper limits for trial delays, and so The Canadian Press had a couple of good pieces on it today, both looking at the fallout in terms of what needs to change in the justice system, as well as looking at the numbers of cases that have applied or been granted a stay of proceedings owing to delays that have been deemed unreasonable. I will note that while justice minister Jody Wilson-Raybould says that the decision “lit a fire” under her, she’s been agonizingly slow in responding.

I write a lot for the Law Times, and I talk to a lot of players in the legal community, and there has been a sense of mystification as to what all of the delays are. The fact that it took her a year to start the process of reforming how judges are appointed was baffling, and that slowed down the process for making said appointments – especially as some of the committees advising on appointments still aren’t up and running, six months later. While more appointments are finally being made, it’s taken a long time and it’ll take even longer for those judges to be fully prepared and worked into the system.

There is the legislation that has been coming out in drips and drabs. For example, they made a big deal about a bill that would finally equalise the age of consent for gay sex, but then abandoned said bill to roll those provisions into a larger bill on doing away with “zombie laws” that have been struck down but remain on the books. How much time and energy was spent on that abandoned bill? We keep hearing about the big promised justice reforms promise – looking at the Criminal Code, sentencing, bail, the works, but we’re nearly two years in, and there’s still no sign of them. Yes, they’re big files, but this is nearly the halfway point in the mandate, and big, complicated files like that are going to take time to get through Parliament – especially in the more independent Senate where they will face pushback from law-and-order Conservatives who are looking to hold onto the “reforms” of the previous government.

And then there are the whispers about Wilson-Raybould’s office. There is a constant churn of staff, but not before great delays when it comes to actually filling positions, like the judicial affairs advisor – a pretty key role that took months and months to fill. And if these kinds of necessary staffing decisions are taking forever, what does that mean for the managerial skills of the minister? There are whispers in the legal community, and they’re not too flattering. So when Wilson-Raybould says that Jordan lit a fire under her, one shudders to think about the pace of progress had it not.

Continue reading →

Roundup: Challenging an unconstitutional law

Posted on by

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

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

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

Continue reading →

Roundup: The Khadr settlement

Posted on by

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

https://twitter.com/aaronwherry/status/882238708904337408

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

https://twitter.com/EmmMacfarlane/status/882304117607215104

https://twitter.com/EmmMacfarlane/status/882304426932932608

https://twitter.com/aradwanski/status/882311305104850946

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

Continue reading →

Roundup: Charles and Camilla in Iqaluit

Posted on by

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

Continue reading →

Roundup: Trudeau’s missing electoral reform link

Posted on by

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

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

https://twitter.com/emmmacfarlane/status/879745237308059648

https://twitter.com/emmmacfarlane/status/879754505297985536

https://twitter.com/EmmMacfarlane/status/879754815626252288

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

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

Continue reading →

Roundup: Clarity is not an appeal

Posted on by

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

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

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

Continue reading →