Tag Archives: Privilege

Roundup: Cluelessly disparaging parliamentary privilege

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Sometimes you read an op-ed so clueless that it burns. This piece by lawyer and part-time law professor Daniel Tsai about the Mike Duffy lawsuit is one of those pieces. Tsai argues that the lawsuit is an opportunity for the courts to make changes to the Senate that, according to him, will make it “more accountable.” As his evidence, he cites statements from Government Leader in the Senate – err, “government representative” Senator Peter Harder darkly musing that some senators may want to protect their friends, and Senator Marilou McPhedran’s quest to root out harassment in the Senate as “proof” that the problem is the Senate’s parliamentary privilege. But he also cites former Senator Don Meredith as a case of harassment without also acknowledging that it was because the Senate has parliamentary privilege that they’re able to discipline their own, and that they had recommended expulsion for his breaching the Senate’s ethical code, and that forced his hand to resign. This is a feature, not a bug.

The whole piece demonstrates that, lawyer or not, Tsai doesn’t understand what privilege is, the importance of Parliament’s need to be self-governing (if it’s not, we might as well just turn power back over to the Queen), or the fact that the institutional independence of the Senate (which allows it to hold the government to account) requires it to have a robust set of privileges that can police its own members rather than subject the institution to threats of lawsuits from its various members when they’ve feeling sore by the fact that they’ve been disciplined. Weakening privilege won’t make the Senate more accountable – it will make it vulnerable to vexatious litigation, and along the way, weaken the House of Commons’ own parliamentary privileges as well (because the privileges of the Senate and the Commons are inextricably linked).

None of this is to suggest that the Senate is perfect – it’s not, and there have been bad apples that generally have been made to resign when the going gets tough. Tsai completely ignores the constitutional role of the Senate and the way in which it’s constructed with a defined purpose in mind in order to engage in some populist pandering to the myths that surround the institution. His “solution” about a judicially-imposed limitation on the privileges that are embedded in the constitution (seriously?!) would make things worse, not better.

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Roundup: Duffy’s poor arguments

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Day two of Duffy’s bid to sue the Senate, and his lawyer came up with some…novel arguments. And it sounds like the judge wasn’t buying many of them. For example, they tried to argue that because PMO was exerting influence on the Senate’s leadership that it should nullify privilege. That’s…creative, and utterly ridiculous. When he tried to argue that the suspension should be invalid because it was done for political purposes, the judge wondered aloud if that meant she would have to call every member of the Internal Economy Committee to testify as to their motives – and no, that wasn’t going to happen she quickly decided. They also tried to argue that because the suspension wasn’t related to legislation that privilege doesn’t apply. But that’s also ridiculous because the ability to discipline its members is among the privileges outlined in Section 18 of the Constitution Act, 1867. So good luck with that.  Oh, and the “indefinite suspension” argument is also void because it wasn’t indefinite – it was until the end of the parliamentary session, and there was a fixed election date, so it would expire at that point regardless. (Also, the Senate’s privileges allow it to expel a member, so arguing that indefinite suspension is tantamount to expulsion is also not a solid argument).

The final argument was a plea to put the Charter ahead of privilege, which would go against previous Supreme Court of Canada rulings that stated just the opposite – that the Charter doesn’t trump privilege, because that would open up a floodgate to litigation against the parliamentary process. There’s a thing called stare decisis, the doctrine of precedent that binds our common law system, and while there are rare cases where it can be challenges, this isn’t one of them. It’s actually quite audacious that his lawyer would make the case, and I’m not seeing any particular argument about how the judge should invalidate a Supreme Court of Canada ruling. So yeah. Good luck to this case, because I really don’t see it going anywhere fast.

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Roundup: Fighting to preserve parliamentary privilege

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Senator Mike Duffy’s court challenge started yesterday, and the Senate as a whole fought back to have the Chamber excluded from his lawsuit under the rubric of parliamentary privilege. The Senate’s privileges include the ability to discipline its members – and this needs to be reiterated firmly, because as a self-governing body with institutional independence, that’s the only way that senators can be disciplined outside of a criminal process. This is also why there is a differentiation when it comes to the judge asking the hypothetical about the Speaker shooting someone – privilege does not necessarily cover criminality.

Part of what Duffy’s lawyers are trying to argue was that the Senate’s punishment of his suspension without pay should be subject to judicial review because he was acquitted of all charges by the Ontario Superior Court. The problem is that he was found to have broken several of the Senate’s rules, regardless of what the court found, and the Senate is empowered to deal with those breaches as they see fit – not to mention, it was also about making sure that discipline was seen to be done, which was important for a body that was facing scandal and public outrage. This doesn’t mean that they went about it in the best way, however – the pressure (especially coming from PMO, which the Senate leadership at the time capitulated to) wanted to have these suspensions out of the way immediately, and so Duffy’s interventions were cut short, and Senator Pamela Wallin never got her chance to defend herself at all because of the haste. Due process was not necessarily followed, and yes, that’s a problem. However, that is not a problem that can be sorted by means of judicial review, because that would undermine the Senate’s ability to be self-governing (just like the Senate subjecting itself to external financial control like the Auditor General wants would undermine its privileges and ability to be self-governing).

It can’t be understated how damaging it will be if we let the courts start interfering in the operations of Parliament, in either the Commons or the Senate. The constant injunctions to legislation, the threats of lawsuits, the massive breach of the doctrine of separation of powers – it’s not something that we should mess with. Duffy may feel he was treated unfairly – and maybe he was to an extent – but it’s no reason to start pulling bricks out of the wall when it comes to privilege. And if the judge has any sense, she’ll respect that separation and take the Senate out of the lawsuit.

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Roundup: Duffy’s privilege problems

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At long last, the Senate has responded to Senator Mike Duffy’s lawsuit against it, and is asking the Ontario courts to remove it from the suit because of parliamentary privilege. This was to be expected, and I’m surprised it took this long, but here we are. Duffy’s lawyer says that he’ll fight it, of course, but he’s going to have an uphill battle because this is very much a live issue.

For a refresher as to why this matters as an issue of privilege is because it’s about the ability of the Senate to discipline one of its own members. This is especially important because the Senate is a self-governing body of Parliament, and because it’s appointed with institutional independence and security of tenure in order to ensure that there is that independence. In other words, the Senate has to be able to police its own because there’s no one else who can while still giving it the ability to be self-governing (as we explored in great detail over the Auditor General’s desire to have an external audit body oversee the chamber’s activities). And indeed, UOttawa law professor Carissima Mathen agrees that it would be odd for the Senate not to have the power to suspend its own members, and raises questions about whether it’s appropriate for the judiciary to interfere in this kind of parliamentary activity. (It’s really not).

The even bigger complicating factor in this, of course, is that NDP court case trying to fight the House of Commons’ Board of Internal Economy decision around their satellite offices. The Federal Court ruled there that it’s not a case of privilege (which is being appealed), and Duffy’s former lawyer, Donald Bayne, said that this is a precedent in their favour while on Power & Politics yesterday. And he might have a point, except that the Commons’ internal economy board is a separate legislative creature, whereas the Senate’s internal economy committee is a committee of parliament and not a legislative creation. This is a Very Big Difference (and one which does complicate the NDP case, to the point that MPs may have actually waived their own ability to claim privilege when they structured their Board in such a fashion – something that we should probably retroactively smack a few MPs upside the head for). I don’t expect that Duffy will win this particular round, meaning that his lawsuit will be restricted to the RCMP for negligent investigation, but even that’s a tough hill to climb in and of itself. He may not have much luck with this lawsuit in the long run.

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Roundup: Feeding the fear industry

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The Conservatives’ final Supply Day motion of the year, and they chose to use it to both demand that the government bring any returning ISIS fighters to Canada to justice, while simultaneously condemning them for the Omar Khadr settlement – you know, the issue that they were going to hammer the government hard on back in September which didn’t materialize.

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As you can expect, the arguments were not terribly illuminating, and lacking in any particular nuance that the topic should merit, but that’s not exactly surprising. Still, some of the lines were particularly baffling in their ham-fistedness.

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Amidst this, the CBC published a piece about Canada’s refusal to engage in extrajudicial killings of our own foreign fighters out of the country, asking lawyers whether Canadian law actually prevents it, which not unreasonably has been accused of creating a debate out of nothing.

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And this is really the key point. Treating issues like this one in a ham-fisted manner, whether it’s with a Supply Day motion designed to fail, or a debate created out of nothingness, is playing into the fear industry that we really should be trying to avoid. This is not the kind of nuanced debate that we should be having, which hurts everyone in the long run.

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Roundup: Not headed for a debt bomb

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In light of the fall economic update, and the myriad of concerns about the level of the deficit and lack of a plan to get to balance in the near term, economist Kevin Milligan took us all to school over Twitter yesterday. The main message – that it’s not 1995, and we can’t keep talking about the deficit as though it were.

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Later on, Milligan took exception to the notion that the government has backtracked on their tax reform promises and made the situation worse. Not so, he tells us.

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So there you have it. Armchair punditry on deficits or tax changes (even from some economists) doesn’t necessarily stack up.

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Roundup: An unconstitutional motion

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As stated for their upcoming Supply Day motion (currently scheduled for Monday, the Conservatives have drafted a resolution that would see the House of Commons express non-confidence in Minister Sajjan and Minister Sajjan alone. It’s the kind of thing that makes me want to bash my head into a wall before my head explodes because it’s so very boneheaded from start to finish.

First of all, you should read this post by James Bowden, who takes apart the motion to and shows that it is unconstitutional. What is more interesting is the fact that the NDP tried this tactic before when Rona Ambrose was minister of the environment, and the Speaker ruled it out of order then, just as Speaker Regan should this time. Why? Because one of the fundamental tenets of Responsible Government is that of Cabinet solidarity. Cabinet lives and dies as a single body – there is no dispensation given to ministers we like, or to simply cull the prime minister from the rest of them in these kinds of votes. It’s an important feature of why the system works the way it does, and trying to cherry pick it for the sake of political tactics makes one a bit queasy because this is our very system of government that we’re talking about and they should bloody well know better.

Look, I get that they’re trying to exploit what they see as low-hanging fruit with Sajjan, but along the way, they’ve been dangerously blurring the lines of civil-military relations by asserting that the troops want him gone (do they aside from a few cranks? Never mind that it’s not these soldiers’ call), and by referencing Sajjan’s actions in military terms rather than political ones. Trying to use the term “stolen valour” is also offensive, not only because it’s generally reserved for someone who dons a uniform or medals without having been in combat (which is not the case with Sajjan), but because they’re co-opting it from the military for political benefit. But now they’re trying to go against the fundamentals of Responsible Government to score what they hope will be a cheap win.

That Her Majesty’s Loyal Opposition is trying to burn the system to the ground to score a couple of points is a very serious problem, and one indicative of a party that is more focused on populist spin than they are in being principled. It’s  a disturbing pattern, and one that they should knock off before they go too far down this garden path.

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Roundup: Making a martyr of herself

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If there’s one thing that we’re talking about right now that’s not the interminable Standing Orders debate, it’s Senator Lynn Beyak, of the “well intentioned residential schools” remarks, which came shortly after her incomprehensible remarks about trans people while saying that good gays don’t like to cause waves. And after being removed from the Senate’s Aboriginal Peoples committee, she put out a press release that didn’t really help her cause.

Of course, the more we talk about Beyak in the media and demand that Something Must Be Done about her, the more it’s going to embolden her and her supporters. The fact that she’s starting to martyr herself on the cause of “opposing political correctness” is gaining her fans, including Maxime Bernier, whom she is supporting in the leadership. Bernier says he doesn’t agree with her statement about residential schools, but he’s all aboard her “political correctness” martyrdom. Oh, and it’s causing some of the other Conservative senators to close ranks around her, because that’s what starts to happen when someone on their team is being harassed (and before you say anything, my reading of Senator Ogilvie’s “parasites” comment was more dark humour in the face of this situation than anything, and reporters taking to the Twitter Machine to tattle and whinge makes We The Media look all the worse).

But seriously, Beyak is not an important figure. She’s marginal at best within her own party, and her comments have marginalized her position further. But the more that people continue to howl about her, or post e-petitions demanding that the government remove her (which is unconstitutional, by the way), the more she turns herself into a martyr on this faux-free speech platform that is attracting all manner of right-wing trolls, the more she will feel completely shameless about her words. We’ve shone the spotlight, but sometimes we also need to know when to let it go and let obscurity reclaim her.

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Roundup: Don’t take conventions to court

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A group of East Coast lawyers has decided to launch a court challenge about the possibility that the government might appoint a new Supreme Court justice that is not from Atlantic Canada, and my head is already hitting the desk because while you can conceivably argue that the regional composition of the court may very well be a constitutional convention, by that very same argument, a constitutional convention is non-justiciable, so you can’t actually take it to court.

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So, to recap, until an appointment is actually made, the whole quixotic venture is premature. Constitutional conventions are politically enforceable but not legally, in part because we don’t actually want people to constantly take the government to court when they lose at politics (which already happens too much – and it’s almost as bad as writing to the Queen when you lose at politics). There was a court case not too long ago when Democracy Watch took the government to court because Stephen Harper went to the Governor General to call an early election despite the (useless) fixed-election date legislation having been enacted, and the courts dismissed it because prerogative powers are constitutional conventions (and while unwritten, are nevertheless still part of our constitutional framework).

And don’t get me wrong – I do think there is a very good case that the regional composition is a constitutional convention because it reflects the federalist principle that is necessary to give its decisions the political legitimacy necessary to be the arbiter of jurisdictional disputes in this country, and that is a pretty big consideration. But the courts are probably not the best place to solve this issue. Having the Atlantic premiers write the Justice Minister to warn her about breaching the convention is probably a better course of action, as would having backbench Liberal MPs from the region expressing their displeasure (though, for all we know, they may already be doing so behind closed doors in the caucus room). And a public campaign that lays out this argument (as opposed to just one centred around it being unfair or about maligning the political correctness of trying to find a new justice that better reflects certain diversity characteristics) wouldn’t hurt either. But this group of lawyers should know better than to try and make a non-justiciable issue justiciable.

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Roundup: Checking Hansard

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There was an interesting read over on Policy Options yesterday that all MPs should be paying attention to: a reminder that they should watch what they say in when speaking about bills, because the courts (and most especially the Supreme Court of Canada) are checking Hansard. When it comes to challenging laws, particularly Charter challenges, the issue of legislative intent is often raised, and the courts are forced to determine what it was the government intended to do when they passed these laws, and that can matter as to whether those laws will survive a Charter challenge. And if MPs – and most importantly ministers – give speeches full of bafflegab and meaningless talking points, it muddies the record that the courts rely on. The example here was the bill eliminating time-served sentencing credits, by which the court examined Rob Nicholson’s statements and tested them against the results of the law and found that no, eliminating the sentencing credits didn’t enhance public safety or confidence in the justice system. I would also add that it’s yet another reason why Senate committees have particular value, particularly when it comes to contentious bills that perhaps shouldn’t pass but do anyway under protest. Because their findings are on the record, when those laws inevitably wind up in the courts, those same objections can be read and taken into consideration. So yes, your speeches and work in parliament does matter, probably more than you think. Just be sure to use your words wisely, because they will come back to haunt you.

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