Tag Archives: Supreme Court

Roundup: Targeting the journalists

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It has become increasingly clear that the Conservatives plan to wage war against the media as part of their election strategy, which you’d think is funny because We The Media aren’t running in the election. The problem is that this isn’t actually about the media, but rather about undermining the foundations of the institution and the trust that people place in it. Why? Because in the wake of the growing success of populist leaders and movements, they’ve decided to abandon all shame and simply straight-up lie. Most of the media won’t call them lies, because they tend to aim for both-sides-ism “balance” that tends to look like “one side says this, the other side says that, you decide” in its construction, and Scheer and company have decided to exploit that for all it’s worth. And if you do call them on those lies, well, you’re the one who is suspect, whose motives are driven by partisanship, or because you’re looking for some kind of government job, (or my favourite, that I’m allegedly performing sexual favours for the PM).

What I find particularly rich are the Conservatives operatives behind this campaign of harassment is how they insist that they don’t rise to Trumpian levels, but you could have fooled me. They may not say “fake news,” but they intimate it at every opportunity. And if you call them out on a lie (which doesn’t happen often), then they go on the attack. It’s happened to me on numerous occasions (and usually the attacks are themselves wrapped in more lies and distortions), but then again, I’ve also decided to call a lie a lie and not couch it in both-sides-ism. As much as they insist they’re just “pointing out specific inaccuracies” or “countering criticisms,” that’s another lie, and we all have the receipts to prove it.

In the meantime, they’ll content themselves with this sense of martyrdom, that they’re just so hard done byfrom the media, that the coverage of the Liberals is “glowing” while we do nothing but attack the Conservatives (have you actually read any reporting?) and that apparently the pundits are all taking the Liberals’ sides (seriously?) and that justifies their need to “go for the jugular.” But when you’re accustomed to blaming others to assuage your hurt feelings, you think that your attacks righteous, and that’s where we are. So yeah, this is going to get worse, it’s going to get Trumpian, and they’re going to keep insisting that they would never demonise the profession, but don’t believe them. It’s in their interests to undermine journalism, and they lack any shame in doing so.

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Roundup: Kenney and Scheer vow to repeat mistakes

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There was a conference in Calgary yesterday called “Energy Relaunch,” during which both Jason Kenney and Andrew Scheer laid out plans for how they propose to get the province’s oil and gas industry “back on track” if they were to form government. The problem is that they seemed to have learned absolutely no lessons from the past few years about where the problems and bottlenecks in the process lie, and what to do about them. Their solutions tended to be to use bigger bulldozers and to gut more legislation, and Kenney more specifically included funding the legal challenges of resource-friendly First Nations communities and targeting “foreign-funded” organisations that opposed development (because it’s all one big conspiracy by the Tides Foundation, and however else makes a convenient scapegoat). But if anyone has paid any attention to the court decisions over the past number of years, especially over Northern Gateway and Trans Mountain, the theme that emerges is that they have been slapped down because successive governments have attempted to cut corners and weasel out of their obligations rather than doing the hard work of proper assessments and consultation with Indigenous communities that would get them the approval they were looking for. The current Liberal government seems to get this fact and is proceeding accordingly when it comes to Trans Mountain, while Scheer and Kenney wail and gnash their teeth about how they didn’t appeal the decision to the Supreme Court of Canada (without articulating what the error in law was), or somehow legislating away the problems (never mind that retroactive legislation will lead to more litigation, and you can’t legislate away your Section 35 duty to consult obligations).

Kenney also promised that if made premier, he would launch a “war room” to counter any critics of the oil sands in real time. The problem is that hasn’t worked to day, and won’t work going forward, but Kenney refuses to grasp that reality.

Energy economist Andrew Leach was also presenting at the event, and has some thoughts as to what he heard as well:

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Roundup: Getting the TPP to the finish line

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The bill to enact the Trans Pacific Partnership has passed the House of Commons and arrived in the Senate, and the race is on for its swift passage, as there is a desire for Canada to be among one of the first six countries to ratify the deal (currently three others have ratified). In the Commons, the NDP were the prime opponents to the deal, but they’re not a force in the Senate. The Conservatives in the Senate are just as keen on its swift passage as their Commons counterparts were – and they tried on more than one occasion to pass the bill at all stages without debate (because hey, who needs to do the job of scrutinising bills and holding government to account?)

While we can expect a bit more scrutiny in the Senate, I have to wonder where any delays will come from. When it comes to the Independents, one of their own are sponsoring the bill, so he will likely lead a push within that caucus in the way of organising briefings and trying to muster votes, so it would largely be an issue of whether any of them want some particular extended study on issues in the bill. The Senate Liberals tend to be free-traders, but they will want to insist on some scrutiny, as is their forte – they can often be counted on to do some of the heavy lifting that MPs are unwilling to do. So while I don’t expect them to hold up the bill, I would expect them to do their due diligence, which means it won’t sail right through, though I wouldn’t expect it to take long.

So where would I expect any delays to happen with this bill? With the Leader of the Government in the Senate’s office, given his reluctance to do any negotiation of timelines for bill passage. If there’s to be any delays, I personally would expect them to come from bottlenecks of other bills that are languishing because they can’t manage to get them passed at a reasonable pace because nobody wants to do the actual negotiation of timelines. Delays will come from incompetence, rather than malice. We’ll have to see how severe it will be, but that seems to be the state of things in the Senate these days.

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Roundup: A “grand coalition” is a terrible idea

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Over in New Brunswick, where there has been no movement on whether or not there will be a new government, we are being treated to such views as the suggestion that there should be a “grand coalition” between the Liberals and Progressive Conservatives in the province to…rise above partisan interests? Erm, well, leaving aside the fact that there is a lot of bad blood between the leaders and it’s never going to happen, I find the suggestion in and of itself utterly offensive. Why? Because our system depends on there being an opposition to hold the government to account. That’s the whole point of parliament after all – to hold government to account, and while backbenchers are supposed to play that role as well as the opposition, in practice it often doesn’t work that well because the incentives are rarely there when there are Cabinet posts to distribute and the fact that we’ve bastardized our leadership system so as to neuter caucus’ ability to hold their leaders to account. Such a “grand coalition” would mean that the province has an opposition comprised of two three-member parties, which would have to fight over who gets to be the Official Opposition, and would have a hard time doing the job of holding a massive coalition government to account.

Now, I will add that New Brunswick and its peculiar political culture once returned a legislature that was 100 percent Liberal and had zero opposition members, and they managed to make it work. Sort of. But it’s not a situation that anyone should want to repeat, because it’s a Very Bad Thing for democracy and the practice of Responsible Government. Opposition plays an important role, and I know that people don’t like it because the adversarial nature can become both theatrical (witness Question Period), but if members don’t take that theatricality to heart, it can become embittering – especially if there are few avenues for cross-partisan bonding. I don’t know enough about how that part of the political culture works in New Brunswick, but the diminishing avenues for such bonding in Ottawa has created a less collegial parliament than it used to be in years past, and that’s a problem.

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Meanwhile, the lieutenant governor is straying dangerously out of her lane in issuing statements warning the parties to come to a solution because she doesn’t think the province wants a new election, and that means also finding a Speaker. This shouldn’t be public, and I get that some people want transparency, but she shouldn’t be doing this – especially because it gives people the idea that she can boss around the premier, which she can’t actually do unless we want to undo 170 years of Responsible Government in this country. It’s especially bad if the parties are trying to play the LG and trying to force her hand in some way – which is the kind of gutless manoeuvre that we should expect from Canadian politicians who don’t like to be seen to be making unpopular decisions and will try to foist the blame onto someone else. This whole situation is distasteful, and everyone needs to grow up and behave like adults.

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Roundup: Shifting the blame upstream

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Have you seen that Internet meme going around about 100 corporations being responsible for 71 percent of the world’s GHG emissions? Congratulations, you’re fooling yourself as to what this really means! There’s an interesting piece in the National Postright now that breaks down what that study actually shows, and it’s not what you may think. The problem with the report that shows this statistic is that it shifts the blame for the emissions upstream to producers rather than downstream to consumers – so Exxon is being blamed for emissions from cars, when it’s consumers who are driving demand for their gasoline by, well, driving. And when you sort out upstream and downstream emissions, it turns out that those 100 corporations are really only responsible for about seven percent of those emissions – the rest are really the responsibility of consumers.

Why is this important? Because by presenting the problem as being driven by those 100 companies, it gives the impression that they can be dealt with as corporate bad apples who can be regulated into reducing that tremendous chunk of emissions. More importantly, it tells consumers that they’re not the ones responsible, it’s the fault of evil corporations – never mind that they’re responding to consumer demand. And this takes us back to the conversation around carbon pricing. When hucksters like Jason Kenney and Andrew Scheer insist that they can meaningfully reduce carbon emissions without carbon taxes (note: Kenney’s carbon tax plans only target large emitters that pay into a “technology fund”), it once again leaves consumers off the hook, which defeats the purpose.

Consumers drive demand, which drive emissions. If you target consumer behaviour by putting a price on the emissions they’re causing, you’re working to change demand, whether it’s through better fuel economy, insulation in housing, or making different choices about what it is they’re consuming and how carbon intensive their consumption is, you’re dealing with the problem where it starts. Carbon taxes are a transparent way for consumers to see what it is they’re using, and allows them to make choices. When you target companies instead, you’re simply passing along the costs to them in the form of higher prices in a non-transparent way, and in a costlier way because regulation is a far less cost-effective way of driving emissions reductions. So indeed, rather than trying to ensure that consumers aren’t being hit by the costs of carbon pricing, you’re actually ensuring that they’re hit even more (particularly because the costs of doing nothing will be even greater still). You can’t pretend that this problem can’t be solved without a focus on consumers, and that starts with recognizing that consumers are the problem, not corporations.

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Roundup: Not a Nordic friendship group

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The ouster of a UCP candidate in Alberta over his posing with members of the Soldiers of Odin, and then excusing it by saying that they’re polite, continues to reverberate as the provincial NDP are looking to make hay of it, and premier Rachel Notley pointing out (entirely correctly) that you can’t keep blowing into dog whistles and then looking surprised when these people show up. And even the other two candidates who posed and then disavowed knowledge of who they are isn’t entirely credible because these people showed up in badges and vests, looking not unlike motorcycle gang members, and that should have clued them in that maybe photos were a bad idea. And as a friend of mine pointed out, you can bet that if a group of drag queens showed up and wanted to pose with them, someone would have put a stop to that right away. And so here we are.

While casting the UCP as bigots is familiar political territory to tread, it’s not like there isn’t enough history to show that they need to be careful with their associations, and in showcasing the dangers of too much free speech in the political arena. Recall that it was the “lake of fire” comments from Wildrose candidates that sunk that party’s chances in a previous election, and when then-leader Danielle Smith didn’t come out to denounce the comments, it cost her and the party. And while the UCP’s spokesperson came out to give the denunciation, Kenney himself has been silent on this, which will risk his looking like either tacit endorsement or that he’s not taking white nationalism seriously enough. And while people say that nobody could accuse Kenney of such a thing, given his history of being the Minister of “Curry in a Hurry” and attending every buffet by an ethnocultural minority back when Stephen Harper gave him the citizenship portfolio, what that ignores is the fact that Kenney also played very cynical games with those newcomer communities, putting them against each other (particularly immigrant communities against refugee claimants), and focusing on those communities where he felt he could exploit their social conservatism for his benefit. That did get noticed in some of those communities, and it’s in part why the supposed shift in immigrant votes didn’t actually happen outside of a pervasive media myth that wasn’t born out in fact.

The point has been made that if we don’t want to ensure that all politicians and candidates are in bubbles that this sort of thing will keep happening – particularly if groups like these show up and events and pose with politicians in an attempt to legitimate themselves, and as Paul Wells pointed out on Power & Politics (at 46:20 on the video), there is a whole cottage industry of Conservatives who search for photos of questionable people who have posed with Trudeau and company doing the very same thing (recall Jaspal Atwal doing the very same thing, leading to the overwrought denunciations of the India trip). This is true, and it shows that there is fallibility in any kind of “vetting” of people who pose with photos – and the fact that “vetting” these things is less of an organized thing than people, including in the media, seem to think. But this being said, when the group looking to pose with you seeks legitimation, it’s incumbent on the politicians to denounce what they stand for, and if it keeps happening (like what is going on here) that the leader should say something – but it also should give pause to reflect on what it is they’re saying that is attracting these sorts. Just saying “we don’t agree with xenophobes” while playing the xenophobia tuba, like Maxime Bernier, can’t cut it either. We’re not fools, and shouldn’t be treated as though we are when things like this happen, and keep happening.

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Roundup: Protecting parliament from court interference

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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.

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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.

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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.

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Roundup: Yet more dubious suggestions hosted by the GRO

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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.

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Roundup: Populist myths and the lies they tell themselves

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The Nobel prize has been awarded to economists working on issues of climate change, who point to the need for carbon pricing to get markets to come to a consensus about finding solutions, and what do we get in Canada? Doug Ford going on tour to see Scott Moe and Jason Kenney to decry carbon taxation, and to lie to people about the efficacy of carbon taxes. They work, despite what Ford, Kenney, Scheer, et al. say, and we have the data to prove this.

The Ford/Kenney rally was apparently quite something, a demonstration of partisanship over politics, and a demonstration about what how this all relates to our recent discussions over populism, with the carbon tax as a wedge issue. But while this is being put against this notion that Stephen Harper is trying to put forward in his new book about how “conservative populism” is somehow trying to weed out the worst instincts of populists, but that can’t actually be true if the dog-whistling still goes on. In her piece about the Ford/Kenney rally, Jen Gerson relayed the anecdote about people attending the rally being asked to cover up their MAGA hats with oil sands stickers – but the MAGA hats are still there, even if they’re being literally papered over. Kenney and Ford still play semantic games around the same terminology that the xenophobes use (such as the use of “illegals”), and it’s still a dog-whistle. And it can’t be any surprise that because of all the dog-whistling that the Soldiers of Odin have started posing with UCP candidates in Alberta while wearing their badges and vests. You can’t simply say “Oh, it’s unacceptable these people show up to our events” when you keep inviting them with the dog-whistle language. (There’s a lesson in here for Maxime Bernier as well).

Meanwhile, John Geddes went through that excerpt of Harper’s book and deconstructed his arguments and his analysis about populism, and his nonsense construction of “Somewheres” and “Anywheres.” Aside from the fact that it’s deeply ironic that Stephen Harper, strong friend of Israel, is using the same “rootles cosmopolitan” argument used in Soviet propaganda to vilify Jews, it’s just trading on baseless mythology and trying to build an argument around it that doesn’t actually hold any water. But it also goes back to what Ford, Kenney and others are pandering to – they’re denying that problems exist, and then undermining the institutions that can help solve them. Such as with the looming climate crisis. We need a wake-up call.

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Roundup: Counting on LNG

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The federal and BC provincial governments made a big ballyhoo yesterday about the fact that a consortium of companies have come together to make a $40 billion investment in Liquified Natural Gas (LNG) in BC, and it’s a project that not only did Indigenous consultation correctly, but got buy-in from the communities. It’s seen as a study in contrasts for other pipeline projects – but it’s also worth noting that natural gas isn’t bitumen, and you’ve got vastly different environmental consequences to a spill or breach. It’s also a major energy project at a time when the dominant narrative is that we apparently can’t get anything built in this country, or that investment is fleeing (not actually true), and that what we need to do is to end carbon pricing (despite the fact that energy companies have been calling for it), gutting environmental legislation (never mind that the regime Harper put into place created far more problems than it solved), and that Indigenous consultation is just a fleeting goalpost that keeps shifting. This project seems to prove otherwise – even if BC promised breaks on provincial and carbon taxes to sweeten the deal (though one could say that it shows there’s enough flexibility in the system as opposed to the whole system being hopelessly broken). Suffice to say, it makes the Conservatives’ talking points far less tenable (not that the truth has really mattered to them).

One of the more interesting questions in all of this is how it will affect emissions – not only locally, but globally, and that’s really the big question. While the local emissions would be high enough that it appears that BC would likely need to virtually decarbonise their economy otherwise, there is the potential that this LNG would be a major help in reducing emissions in Asian economies that are reliant on coal-fired generation – but that’s only if the LNG displaces coal and not other renewables instead. In all likelihood, LNG would be used alongside renewables as a backup or stopgap, but it may be some time before we see if that’s really what happens. Suffice to say, it has the potential to have a major impact on global emissions, if applied in the right way.

More New NAFTA fallout:

  • Justin Trudeau says that despite that notification clause in the new NAFTA, Canada will still pursue a deeper trading relationship with China.
  • Kim Campbell says it’s a bit cheeky for the Conservatives to suggest that they could have gotten a better deal given the American leadership.
  • In Vancouver, Bill Morneau praised the new NAFTA, but also said that dairy and steel sectors still need help. So, there’s that.
  • The new NAFTA includes a specific clause to insist that Canadians not be able to watch the American broadcast of the Super Bowl. No, seriously.
  • Here’s a deeper dive into the Supply Management issue as it relates to the new NAFTA, including the fears of hormone-laced milk coming in from the US.
  • Here’s a look at the government’s efforts at trade diversification, given that NAFTA is more or less renegotiated.
  • Here’s a look at next steps when it comes to ratification of the new NAFTA.

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