Tag Archives: Supreme Court

Roundup: Chalk up another moral victory

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The NDP did what they are very good at yesterday, which is to get a non-binding motion passed in the House of Commons, and declare a moral victory in spite of the fact that it does little more than make a statement. In this case, it was their Supply Day motion on calling on the government to drop their litigation on both the Canadian Human Rights Tribunal decision around First Nations children taken into foster care, while the second is round survivors of the St. Anne’s residential school. The Cabinet abstained from the vote, while most Liberal backbenchers voted for it – agreeing in principle to parts of the motion, and making a statement, but not binding the government to do anything. And while the NDP pats themselves on the back and says that they are “forcing” the government to drop the litigation, it does no such thing. It was merely the House of Commons voicing an opinion.

Part of the problem is that there is very little ability for people to discuss what the litigation is actually about in a meaningful way. According to Singh and company, this is about “taking First Nations kids to court,” which isn’t it. As a lawyer, Singh very well knows that there are complex issues that governments are obligated to sort out, especially if there is a bad precedent that it can set. In the case of the Tribunal decision, the government says they will pay compensation – and they are negotiating with two other class action lawsuits on similar matters to do just that – but the Tribunal ordered individual remedies for a systemic claim, which it should not be able to do, if the logic holds from previous Supreme Court of Canada jurisprudence that said that they could not offer systemic remedies for individual claims. The government, however, mumbles about the jurisdiction of the Tribunal rather than explaining this, and it means they look like the bad guys. With the St. Anne’s case, I’m less familiar but the government’s line has been that they are seeking clarity on some five percent of survivors who have not yet been compensated, and in some of those cases could be getting more compensation for some of those five percent – because complex issues can require complex litigation to solve.

Unfortunately, that’s not what most journalists will sort out. Instead, we get the usual both-sidesing of this, where you get the advocates insisting the government is being “incomprehensible,” and the government gives some pat talking points, and they leave it at that. It’s why, for the Tribunal litigation, I went and talked to law professors and got some outside perspective on what the issues actually are, and why they matter for a government to bother litigating them. We’re being failed because most journalists are too incurious to sort the issues out, and that’s a problem. Legal stories are complex, but they deserve some attention paid to them so that we’re not left with the misleading narratives that are now being allowed to circulate unchallenged. Media needs to do better.

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Roundup: Liberals being weasels about “open nominations” – again

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Remember back before the 2015 election when Justin Trudeau declared that the Liberals would be a party of open nominations? And then how he weaselled out on that after the election in order to protect nominations when they had a majority? And even after that, decided to trigger their “electoral urgency” rules in advance of the 2019 election, even though they knew the timing of it years in advance and could have actually let those nominations happen? Well, they are being weasels again, and just triggered the “electoral urgency” rules once more.

Of course, because there are only three narratives to choose from in most media outlets, this was seen as “more proof” that there’s going to be an election this fall, especially when combined with the fact that MPs agreed to hold a take note debate session on the 15th that will allow MPs who have opted not to run again to give a farewell speech. It’s all proof! Erm, except that this is a hung parliament that will have reached the two-year mark in the fall, making an election far more likely, so it’s a convenient time to hold such a session, given that it certainly wouldn’t happen after a confidence vote to bring down the government. I remain unconvinced that the Liberals are planning to dissolve parliament by the end of summer on a flimsy excuse, but then again, I generally don’t subscribe to the Three Narratives.

This being said, this weaselly behaviour around nominations is unsurprising given the trends in this country, and where the party has been headed. They did it in 2019, and at the end of last year, they did away with open nominations for the two by-elections and simply appointed candidates outright, never mind that there was interest from others in each riding and they could have held competitive races, yes, including in a virtual situation. We’ve seen all parties behave in ways that are undermining the democratic process by gaming nominations – Samara Canada wrote a report on it. (Samara was also credulous about the NDP’s claims about open nominations in 2011, in spite of all of the evidence of paper candidates who never even visited the ridings, never mind having run in an open contest, but that’s neither here nor there). The point is that this kind of behaviour is toxic to the long-term health of our system of government, and it needs to be countered and pushed back against. Unfortunately, because the media is hung up on the “early election” narrative at any opportunity, they never actually hold the parties to account for their undemocratic behaviour, and we’ve allowed it to get to this point. This is a very bad thing, and we should be pushing back and demanding proper, open nominations from all parties, no matter how inconvenient it may be in a hung parliament.

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Roundup: Some of the misconceptions around C-10

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The other day, I made a somewhat snarky comment over Twitter in response to an op-ed in The Line, because people are still making stuff up about Bill C-10. Like, out of whole cloth, complete fiction, because they do not grasp the basic mechanics of regulation in this country.

So, with this in mind, here are a few reminders. Start by re-reading my piece in National Magazine about the bill. Individual content uploaders are not being regulated – only the platforms themselves. The CRTC is not going to takedown YouTube content, and it’s not going to regulate news. If it regulates Facebook, it’s not regulating the algorithm of timelines – it’s only regulating if Facebook is acting like a broadcaster of scripted content, or when they livestream baseball games (which they have done). The reason why YouTube as a platform, for example, is being targeted is because it is the largest music streaming platform in the world, and this is why they want to bring it into the ambit of CanCon regulations, governing both discoverability (so that the algorithm shows more Canadian artists in suggested playlists), and contributing financially to the system that helps provide grants and royalties for Canadian artists. People keep mentioning Instagram and TikTok, but they’re not really broadcasting platforms.

So how does the CRTC determine what counts as CanCon? Well, they have a formula that assigns points to it, and 6/10 or 8/10 points gets particular CanCon status. These are all determined by regulations under the Broadcasting Act. Remember that legislation is the framework and policy direction – the nitty-gritty rules get determined by regulation, and it follows a process of development that involves stakeholder engagement and consultation, and is done at the bureaucratic level. It’s not Cabinet pulling rules out of their asses, nor should it be. You don’t want Cabinet to be putting its thumb on the scale, which is why there is an arm’s length regulatory body, being the CRTC. And it’s not just the cabal of commissioners who are making these regulations either, in spite of what certain people are claiming.

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This brings me to my next point – the very notion that the CRTC is going to police the whole of social media is completely crackers on the face of it. They barely have enough resources to do their existing job (and if you listen to some of the reasoning around this week’s telecom decision, they seem to think they can’t handle doing the work of wholesale internet prices). If you think they’re going to somehow hire an army of bureaucrats to police your tweets, you should be certifiable.

Now, this isn’t to say that C-10 is without problems, because they are there. For one, the Broadcasting Act may be the wrong vehicle for this, as it was about regulating the limited bandwidth for TV and radio. It will be on platforms to adjust their algorithms to make CanCon more discoverable, which is going to be the high-level work, but there are particular concerns around meeting the objectives under the Act, which involve things like “safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,” and whether these platforms will moderate content to try and fit those objectives, and that moderation will likely involve the use of AI, which is where we have particular concerns. And those are legitimate concerns, but they have nothing to do with the Orwellian picture being painted of moderated tweets, and newsfeeds being monkeyed with, or “takedown notices.” The level of complete hysteria around this bill, rooted in a complete ignorance of how regulatory bodies work – and a great deal of partisan disinformation – is making the debate around this bill utterly loony (at least in English Canada). Yes, it’s complicated, but don’t fall for easy narratives.

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Roundup: Bloc motion denied by Wilson-Raybould

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The Bloc tried very hard yesterday to push a motion in the House of Commons that would essentially declare that the Commons agreed with Quebec’s Bill 96, thus trying to politically disarm any of the objections to the plans to unilaterally amend the constitution to insert clauses on Quebec being a “nation” and that its only language was French. They were thwarted by Jody Wilson-Raybould, who was the only one to deny them unanimous consent – as well she should, because everyone is trying to be too-clever-by-half on this whole thing, and that’s bound to wind up in tears at some point down the road.

Paul Wells explained some of this earlier in the week in his lengthy column on Trudeau’s quest for Quebec votes, and essentially Trudeau was saying that sure, Quebec could move this unilateral move to the constitution if it didn’t impact on other rights, which is the real trick – the whole point of Bill 96 is to weaken the rights of anglophones in the province, up to and including taking away their constitutional guarantee to be able to hear a trial in English. Jagmeet Singh similarly tried the same tactic in saying that the proposed constitutional changes are “symbolic,” and won’t impact anyone outside of Quebec (never mind that they will impact anglophones in the province). Everyone seems to think they’re clever and that there will be no long-term repercussions from this, because they all want to get on François Legault’s good side before the next election, whenever that happens, because he’s still wildly popular in the province (almost disconcertingly so). This is hardly a serious way to run a country.

Meanwhile, here’s Thomas Mulcair, a veteran of the linguistic wars in Quebec, explaining why Bill 96 is really a sneak attack on the linguistic rights that he spent his career fighting for, and it’s well worth your time to read, because it has some additional context on what the current provincial government has been up to leading up to this point.

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Roundup: Taking a “pause” when it comes to China

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In what appears to have been done by email over the long weekend, Alberta’s provincial government has asked its universities to pause any relationships with China, and wants a report on current activities, citing theft of intellectual property. And it’s a real problem, but this may not have been the best way to deal with it. With that in mind here is Stephanie Carvin with more:

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Roundup: Justice Abella’s farewell to the Court

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Yesterday was a bit of a sad day at the Supreme Court of Canada, as Justice Rosalie Ahella, the senior puisne justice on the court and the longest serving judge in Canada, heard her last case before her mandatory retirement date on July 1st. She will have another six months to finish writing up any judgments that she sat on before the retirement date.

As her final speech, she spoke of being born a refugee, her parents Holocaust survivors, and they moved to Canada, in order to give their children a better life. Abella went to law school, was the youngest judge appointed to the provincial bench at age 29, and went on to have a very influential career chairing commissions and a royal commission, before she was appointed to the Supreme Court – the first Jewish woman appointed, and the first refugee – where she has been for 17 years. And it was a lovely speech. (You can see the video here).

It’ll be interesting to see who the government chooses as her replacement. Because it’s an Ontario seat, there will be an increased focus on finding a more diverse candidate, given that we have yet to have a person of colour on the Supreme Court, and there is more likelihood to find one who can also meet the bilingualism requirement that this government has deemed so important.

Victoria Day

As a reminder, Victoria Day is the official birthday of the Queen of Canada, so be sure to raise a glass in her honour (gin and Dubonnet being Her Majesty’s favoured tipple).

https://twitter.com/Canadian_Crown/status/1395810388319539200

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Roundup: Playing chicken with the variants

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It’s been such a long and dispiriting week, as many of us in this country live under the rule of murderclown premiers who simply refuse to do their jobs when it comes to this pandemic, and keep trying to blame the federal government for their failures, or to at least distract from their inaction. We’re going through that especially in Ontario right now, where Ford and his ministers keep up this song and dance about the borders, without once recognising their own culpability in the spread of variants.

Dwivedi is absolutely right about the role of the media in this, constantly framing this as “squabbling” or “finger-pointing,” and not “there is clear jurisdictional authority for the province and they refuse to exercise it,” which means that these premiers (and Doug Ford most especially) get to escape being held to account. This is why I object so strenuously whenever I hear another journalist or TV host say “nobody cares about jurisdiction in a pandemic.” Sorry, but that’s not how real life works. There’s a division of powers in the constitution that doesn’t care about your feelings.

Meanwhile, Andrew Leach has a few observations about the situation in Alberta that are just as trenchant as the ones in Ontario.

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Roundup: A worrying bureaucratic bottleneck

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A lot has been written about this budget, and much of it falls under the usual narratives of Canadian media, such as wedging it into the box of election speculation (despite the fact that no party is suicidal enough to want an election in the middle of the third wave), of that it’s apparently still 1995 and will always be 1995, and that we are forever on the precipice of a debt crisis (we’re really not). And while there is certainly a bit of the latter in this piece, it nevertheless lays out some perfectly legitimate concerns that bureaucratic bottlenecks will imperil many of the plans laid out in this year’s budget, because there really is only so much capacity in the federal governmental machinery. As well, it noted that without clear priorities among the hundreds of items, it risks the very salient point that when everything is a priority, then nothing is.

Astute readers may recall that a couple of weeks ago, Paul Wells noted the very same thing coming out of the Liberals’ big virtual policy convention, where it was one big exercise in everyone agreeing to everything and nobody articulating any kinds of priorities for the items under discussion (and agreed to). This should raise alarm bells, because it signals that a government won’t be able to control its own agenda. To wit:

I never cease to be amazed by the weightlessness of Trudeau Liberalism. After a year that has often seemed to come quite literally from Hell, when every parent, worker, small business, youth and elderly Canadian had to make grinding choices several times a week, I’m not sure it’s entirely encouraging to behold a government for which every need is imperative, no cost exists, and no choice among priorities is ever necessary. There is, somewhere in it, the jarring sound of unchecked privilege.

I think he’s got a very good point, and it demonstrates that five years later, there are still moments where this government betrays a lack of seriousness to what it’s trying to do. There are files, particularly in justice, where they have managed to drag their feet for so long that courts have to push them. It’s worrying, especially because there are very important measures in that budget that will have a big impact on future economic growth and prosperity, but if they can’t ensure these particular measures get prioritized and through the bureaucratic process, then it will have a very big impact on this and the next generation of Canadians who have been stymied economically.

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Roundup: Sending in the wrong minister

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The shenanigans at committees on all sides are severely testing my patience, as things continue to spiral toward a potential contempt of Parliament charge, never mind that what’s being demanded is exceeding what is generally acceptable parliamentary norms.

The demands that staffers appear at committee are clearly outrageous and in violation of the sacrosanct notion of ministerial responsibility, but the Liberals are nevertheless pushing the bounds of what is acceptable in and of itself. Instead of sending staffers, they were offered the chance to send the prime minister instead – a bit of a long shot, but sending the Government House Leader was clearly testing the committee’s bounds. For them to then send the Minister for Middle Class™ Prosperity® on a second appearance is definitely pushing buttons, and they should know better. If you’re going to invoke the principle of ministerial responsibility, then gods damned well respect it and put the actual minister forward, and for PMO staff, then the prime minister is the responsible minister. Sending Mona Fortier is a deliberate slap in the face.

At the same time, I am also particularly at the end of my rope with the constant demand for unredacted documents, and the insistence that the House of Commons’ Law Clerk be the one to do any redactions. His office is already buried under the literal millions of documents that the Health Committee demanded, and now the Foreign Affairs committee also wants a piece of him and his time to do even more redactions when the non-partisan civil service is normally the body that does this work. This is generally beyond the scope of what the Law Clerk should be doing, and he’s already stressed his resources and staff to do work they shouldn’t be doing, and yet more MPs keep making even more demands. That’s not how this works, and not how this should work, and yet they keep hand-waving about “cover-up!” as though that’s some kind of talisman. I’m not sure what the solution here is other than telling MPs from all sides to grow up, but that’s where we are.

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Roundup: Cheering on an attack on institutional independence

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Yesterday, Senator Claude Carignan tabled a bill that seeks to strip Julie Payette of her pension, and would strip any former Governor General of a pension if they don’t serve at least five years (never mind that nine of our 29 past Governors General did not serve at least five years). It’s an attack on the institutional independence of an office that can serve as a check on government, and needs to be called out as such.

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But just how was it discussed on Power & Politics last night? Over several segments, each of them with different pundits, the common consensus that this was great populist politics to go after an unpopular figure like Payette, and digging into the issue of their other benefits – because nothing sells in Canadian media like cheap outrage and hairshirt parsimony. The most we got to the cautionary tale was to beware unintended consequences, and that a future GG may have to invent a medical reason for a resignation (which the bill states that Cabinet would have to approve, which is entirely bonkers). Not one person – not one – raised the issue of institutional independence, and why it’s a Very Bad Thing to open the door to governments being able to threaten their financial well-being as a way to hold power over them, most especially when the beneficiaries of this independence (not only the GG, but also senators and Supreme Court justices) provide a check on the power of government. This is the level of discourse in this country? Seriously? And even more to the point, the host of the show kept steering the topic to this kind of populist, vindictiveness rather than the actual consequences of making an action like this. It is absolutely boggling, but it gives you a sense as to why things have degenerated as they have. This bill represents an existential threat to our parliamentary system, and it’s being played for petty drama and populist cheap shots.

We need better pundits in this country, and better politics shows. This is horrifying.

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