Tag Archives: Supreme Court

Roundup: Feelings over civics

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Over the course of the weekend, I’ve been giving a great deal of thought to the Supreme Court of Canada’s decision in Frank v. Canada (Attorney General), 2019 SCC 1 – the decision about expat voting rights – and I still can’t bring myself to conclude that they the majority got it right. I’ve read over the decision and found myself greatly annoyed by the fact that majority simply shrugged off the very real issue of constituencies and local elections, and that in his concurring reasons, Justice Rowe mentioned them but shrugged them off. And while people will criticise the reasoning and analysis employed by the dissent from Justices Coté and Brown, they at least did pay particular and necessary attention to the issue of constituencies as it relates to our system – and the rationale for the five-year limit (in that it is the constitutional maximum length of a single parliament). And I can’t let this go, because five of seven justices of the Supreme Court failed to properly understand the importance of constituency-based democracy (and I think the Attorney General’s office also bears a particular amount of responsibility for not making the case adequately either).

To reiterate – we vote for local representatives. We don’t vote for parties, or party leaders, no matter what we may have in mind when we go into the ballot box – we mark the X for the local candidate, end of story. For an expat, it’s not the connection to Canada that should be at issue – it’s the connection to the riding, because that’s how we allocate our votes. The dissenting judges got that, but the majority and virtually all of the commentary I’ve seen on the matter ignored it, despite it being the first principle of our electoral system. The Attorney General focused on the “social contract,” which the majority decision hewed to, and there was a lot of talk about feelings and “progressive enfranchisement,” but feelings are not how we allocate votes in this country. Ridings are, and as warm and fuzzy as you feel about Canada, it’s the riding that ultimately matters. I feel like we’re rewarding civic illiteracy on a grand scale with this decision.

To that end, here’s Leonid Sirota offering his analysis of the decision, and University of Ottawa law professor Mike Pal’s thoughts in this thread. And here’s Emmett Macfarlane to pick apart the decision further (though we will disagree on the outcome).

https://twitter.com/EmmMacfarlane/status/1083740974008815617

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Roundup: Poking at polarization

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The new issue of Maclean’s is focused on political polarisation in Canada, with whole suite of stories and op-eds about the issue, starting with what is perceived to be the problems with the “left” (although this piece is more about the Liberals than the “left”) and the “right” in Canada, though I’m not sure how much relevance those particular classifications have any longer, as they’ve been so bastardised with a focus on populism that is either left or right flavoured (and lo, Anne Kingston makes that point here). And with polling showing that one in four hate their political opponents, and Trudeau especially, they made a point of trying to explore the divide.

Delving in further on the right, Andrew MacDougall looks at the Conservatives’ use of snark and shitposts to try and throw red meat to a base that stayed home in the last election, while Jen Gerson tries to equate the attempts made by Conservatives to tap into the current populist uptick as trying to tap a relief well to prevent a worse explosion – but they are playing a risky game that could infect their politics for a generation. On the other side, Andray Domise points to the “woke Olympics” and shifting social rules that alienate newcomers on the left, while Terry Glavin looks to the yellow vest protests in France (as opposed to Canada) as a sign that populism on the left is becoming indistinguishable from populism on the right.

But amidst this talk of polarisation, Paul Wells offers the piece that is probably most necessary – a reality-check as to the history of polarisation in this county, and how it’s always been there, in very blatant ways, and how we seem to be a country that is constantly battling amnesia as we clutch our pearls about losing our innocence. Not to say that some things haven’t changed, but it’s not like we’re wilting flowers being exposed to some new terrible new vitriol. (It’s like in Question Period, it’s the most behaved MPs have been in decades, possibly ever, and we’re still wringing our hands over it). That said, I think this was a good and timely package from Maclean’s, seeing as we’re entering into an election year and the nonsense on all sides is going to ratchet up to eleven really fast. Being clear-headed about where our politics are going is always a good thing.

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Roundup: Duffy v privilege

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As expected, the Ontario Superior Court dismissed Senator Mike Duffy’s attempt to sue the Senate for their disciplining him because the Senate is protected by parliamentary privilege. Privilege is what allows the Senate to be self-governing and as a body that is focused on holding government to account, it has complete institutional independence for very good reason – so that they can speak truth to power without fear of dismissal or reprisal. So imagine the utter gall of Duffy’s response to this ruling.

“The Charter of Rights applies to all Canadians, but the Court decision states that because of the centuries old concept of Parliamentary Privilege, the Charter doesn’t apply to Senators.” Oh dear me. No. You see, the only reason that Duffy still has a job in the Senate is because of parliamentary privilege. If he didn’t have the privilege afforded to him, he couldn’t have made the myriad of accusations about Stephen Harper and his operatives in the Senate Chamber on the eve of his suspension – not without fear of reprisal, particularly a lawsuit. That the Senate is self-governing and has institutional independence saved him from being summarily dismissed by the prime minister of the day when Duffy caused him a great deal of embarrassment. While I don’t dispute that Duffy was subjected to a flawed process that denied him the benefit of due process due to political expediency because, the fact that he received a suspension without pay that was eventually lifted, allowing him to resume his duties with full pay and serving enough time for his pension to kick in, means that he has pretty much escaped consequence for actions that he very likely would have been fired for in any other circumstance. That he then accuses the concept of privilege as stripping him of his Charter rights, when it has in fact protected him in every conceivable way, is utterly boggling.

Meanwhile, it seems clear that between this bit of self-pitying and the decision to pose with Senators Brazeau and Wallin while Brazeau tweeted that they “survived the unjustifiable bs [sic]” (since deleted), that there seems to be an insufficient amount of self-reflection at play, and that perhaps the three should continue to keep their heads down and not draw attention to themselves, because the public has not forgotten them.

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Roundup: Starting the Big Move

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Yesterday was the final day that Centre Block was officially in operation. As of today, the big move starts happening, starting with the House of Commons chamber, and will be followed by the other major offices, like the Speaker, the prime minister and leader of the opposition, with the heritage furniture that will continue to be in use. And once that’s done and the building is empty, they can start to open up walls and ceilings to figure out the state of the building, and determine what needs to be done in terms of renovations and restorations, and from that point determine a price tag and timeline. At present, everything is just a guess, so we’ll have to stay tuned. (Here’s a photo gallery of the current House of Commons and Senate, and the new Commons).

The Senate, however, is a different story. Recent testing of the new chamber brought to light the fact that there are acoustic problems related to sound leakage that were first identified two years ago, and despite assurances from Public Works, it wasn’t addressed. That means they have to install new sound baffles which will delay the move by several weeks, which means that there will be even fewer weeks for the Senate to address its full Order Paper in the New Year. Committees can still meet in the meantime, but it seems the Conservatives have decided to engage in some gamesmanship over Bill C-69, which has the Independent senators are complaining about stall tactics.

Meanwhile, here is a lengthy thread looking at the new Senate building, and six facts about the building, its history, and the new renovations.

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Roundup: Energy, pipelines and C-69

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With the big climate conference about to get underway, and the current oil price crisis in Alberta – along with the demands by the Conservatives to withdraw Bill C-69, there’s a lot of interesting things going on if we wanted to actually talk policy and not just hurling insults and blaming Justin Trudeau for everything wrong in this world. So with that in mind, here’s Andrew Leach with a fascinating thread on the oil sands, pipelines, climate commitments, and Bill C-69.

By now means is Bill C-69 a perfect bill either, and I’ve spoken to lawyers on both the environmental and proponent sides about their concerns, and they can all point to some of the same concerns, but I also think that the Conservatives’ characterization of it as a “no more pipelines” bill is beyond hyperbolic. If it works as it’s supposed to, the ability to better scope assessments will likely mean more timely actions and targeted consultations thanks to the early engagement that the bill mandates. But trying to cast this bill as a millstone around the country’s economy is ridiculous on the face of it, and withdrawing it won’t miraculously make the oil price differential disappear, or GM to reopen the Oshawa plant, as has been intimated. But far be it for us to expect honest debate on these issues these days.

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Senate QP: Bland assurances from Morneau (part eleventy)

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Things got underway a few minutes early, as finance minister Bill Morneau arrived in the Senate for what promised to be a day full of pointed questions and pabulum answers – Morneau’s particular specialty. Senator Larry Smith led off, asking about the $9.5 billion budgeted in the fiscal update for “non-announced measures,” and Morneau responded with bland assurances about getting the right balance in the budget. Smith noted that he didn’t actually answer the question and that they needed to hold government to account, to which Morneau said quite right, but again didn’t answer, and offered more pabulum talking points about dealing with challenges while still trending the deficit downward.

Senator Batters was up next, and brought up the PM’s comments on social impacts of male construction workers to rural areas, citing that she only sees benefits. Morneau first cited that they look at employment on projects, and then noted gender-based lens for impacts, but didn’t elaborate on the construction worker issue.

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Roundup: Grewal gives some answers

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Just when the drip-drip-drip of new information and the grasping of straws around the Raj Grewal drama was reaching its expiration date, it all blew up anew last night on two fronts. One was the report that the RCMP had been asked to investigate a Brampton infrastructure project where questions are being raised about a land deal and that information had been passed along to both Grewal and Navdeep Bains (and in QP yesterday, Bardish Chagger called the reports false and warned that if allegations were repeated out of the House, they would be met by Bains’ lawyer); the other was that Grewal released an eleven-minute video, releasing it both to the Globe and Mail and to his Facebook page.

In the video, Grewal methodically went through not only his gambling habits, but also the loans (all of which were done by “transparently” cheque and since repaid), and then went through all of the allegations around property ownership, loans, his wife’s finances, the aforementioned Brampton infrastructure project, and even the questions he was asking in the finance committee study on money laundering and terrorist financing. A lot of the information puts to rest speculation and shows how grasping at disparate information and forming a sinister narrative can be when there are fairly simple explanations – explanations that Grewal probably should have been making over the past week as this was coming out, and answering media questions when they called (though one probably has a bit of sympathy for the feeling overwhelmed by it all). What is news out of this, however, is that Grewal said that while he’s leaving the Liberal caucus and taking a leave of absence for his treatment, his announced intention to resign may have been premature, and he’s going to be considering it over the next few weeks – but would have a definitive answer before the House resumes in January. (So maybe Jagmeet Singh made the right call after all in not immediately jumping back to Brampton in anticipation of that seat opening up). I’m not sure this will stop the hyterial questions – particularly the risible notion that he was some kind of national security threat – but it does seem like a lot more questions are now answered than not.

Meanwhile, further to yesterday’s discussion about why MPs shouldn’t be subject to the same kinds of background checks as ministers, here is some more discussion about why it’s a Very Bad Idea.

https://twitter.com/PhilippeLagasse/status/1068485192149389312

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Roundup: Endorsing the Brexitshambles

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In case you haven’t been paying attention, Britain is currently in a state of utter omnishambles as they try to deal with Brexit. A potential deal that was reached resulted in Cabinet resignations, and some very real threats not only to Theresa May remaining as PM, but possibly toppling the government as a whole. It’s lunacy over there right now. Back here in Canada, Andrew Scheer has decided that this was the right time to reiterate his support for Brexit. Because “sovereignty.”

While Scheer can bang on about how much control the UK gave up to the EU, and repeating falsehoods like the canard about the EU having regulations around the curvature of bananas, he both ignores that the EU has created a peace that has been unknown in Europe for centuries, and the fact that much of the Brexit campaign was fuelled by straight-up xenophobia. It’s this latter aspect that is particularly relevant because it’s part of a pattern we’re seeing with Conservatives, as John Geddes pointed out a couple of months ago – that they have this inability to orient themselves in a plausible way with the current nationalist populist trends in conservatism globally. Add to that, there is this naïve notion that they can somehow play with just enough extremism without it going into outright xenophobia or racism (and we’re especially seeing this playout with Maxime Bernier who blows the xenophobia tuba and then acts bewildered that white nationalists start showing up in his new party). But you can’t play with “just enough” extremism, because you can’t actually contain it. And when you wink about things enough times, you can’t act shocked and surprised when your adherents spell out what you were saying – like that post from a riding association Facebook account that posted Harjit Sajjan’s photo with the tagline “this is what happens when you have a Cabinet based on affirmative action.” They’ve only stated repeatedly that ministers in the Liberal cabinet are only there to fill quotas (whereas everyone in the Conservative Cabinet was there “on merit,”) but the moment someone puts Sajjan’s face next to that, well no, that’s totally not what they meant at all. Sure, Jan. And that’s why you can’t actually claim that Brexit is all about “sovereignty,” because it absolutely wasn’t. You can’t divorce the inflated sovereignty concern trolling from the xenophobia – it’s the same mentality as trying to assert that you can use “just enough” extremism for your political ends, but not go all the way.

Meanwhile, Andrew Coyne remains boggled by Scheer’s continued endorsement of Brexit, and wonders if he’s trying to appropriate some of its populist nationalism (the aforementioned “just enough” extremism).

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Roundup: A diminishing vision of a regulator

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The Supreme Court of Canada returned their reference decision on the constitutionality of the proposed national securities regulator yesterday, and it was a unanimous green light – because this is a voluntary system, it’s constitutional. You may recall that a previous attempt to create such a national regulator to be imposed by the federal government was found to be unconstitutional, and lo, it didn’t happen. When the previous Conservative government constructed this new voluntary model, Quebec appealed to the SCC, and as we can see, didn’t win the day. And even with this decision, Quebec still says they’re still going to stick with their provincial regulator, thank you very much, and that’s that.

There are a few things to think about in this decision, and in the system as it’s being designed. One of them is that part of the mechanism that makes it acceptable to the Supreme Court is that the regulatory authority is being delegated to a council of ministers, but that may come with more challenges. Because the wait for this decision essentially stalled the work of the new regulatory body, it remains to be seen as to how long it will take to get the new system up and running.

While Andrew Coyne makes the point that this system really makes no sense because it’s not able to deal with the issue of systemic risk, it may be worse than that. I wrote about this proposal for Law Times back in the spring, and even proponents of the national regulator had started to sour on the concept because the proposed system as it was being built essentially let provinces maintain their own particular carve-outs, which increases the complexity and reduces the uniformity of the system across the country. Even more alarming, according to one lawyer I spoke with, is the fact that this sets up a system that is unaccountable, that makes up and enforces its own rules and is self-funding, which seems to go against most good governance norms. So we’ll see where this goes, but the final result certainly looks to be far less than what was initially promised.

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Roundup: Di Iorio’s bizarre tales

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The tale of absent MP Nicola Di Iorio got even more bizarre yesterday as he started talking to the media, but remained secretive about what he’s been up to since he stopped showing up to Parliament. Di Iorio claims that when he announced his intention to resign in April, there was an outpouring of support from the riding that had him reconsider. Fair enough. He then disputed the reporting that an issue had arisen because he wanted to hand-pick his successor rather than run an open nomination…and then basically confirmed it by saying he wants a hand in picking the successor in the riding and not wanting it to be an open nomination, casting aspersions on the nomination process and claiming the nomination is the election (because it’s a pretty safe seat). So, points for that own-goal.

But wait – it gets even more bizarre. Di Iorio claims that he is on a special assignment from the prime minister that has work that keeps him busy in the riding – too busy to be in Ottawa. And he won’t say what that work is, other than it has something to do with “road safety.” And to add to that, PMO confirmed that he “agreed to continue his work to ensure a smooth transition in his riding and to work on specific files that are in line with his work experience and expertise,” and that he’s expected to announce his decision regarding his future in the coming days. I’m…unconvinced by this. In my ten years covering the Hill, I have never seen any MP disappear for months on a “special assignment” that is so demanding that they can’t show up in Ottawa. I’ve seen plenty of sick leaves, and one or two stress leaves, but never a “special assignment” that has them ignoring their actual duties in Ottawa, where they should be. And why the PMO is being vague about this as well is all the more odd, and smacks of trying to save some kind of face for the situation that Di Iorio has caused. I’m not convinced that any of this is legitimate, so we’ll see what he has to say in the “coming days.”

Meanwhile, here’s Katie Simpson talking about her interview with Di Iorio yesterday.

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