Tag Archives: Supreme Court

Roundup: Another useless voting marathon

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Unless a miracle happens and someone buckles, MPs will still be voting when this post goes live, because the Conservatives decided to demand another marathon vote session on the Estimates in order to prove a point. The point was that they want the government to table a document prepared by the public service about carbon pricing, which allegedly shows the fiscal impact – but it was redacted when released. The Conservatives see this as the smoking gun they need to “prove” that the federal carbon price backstop is a cash grab. Err, except the federal government isn’t keeping the revenues, and the provinces have until this fall to announce how they will be recycling the revenues, whether through tax cuts or whatnot, and lo, the government last month tabled a report that basically showed the efficacy of carbon pricing and that they’re waiting for the provinces to announce what their systems will be.

The Conservatives decided that their pressure tactic would be another round of line-by-line Estimates – because that worked so well the last time when they tried to force a meeting on the Atwal Affair™, only to buckle before votes could go into the weekend, and then they blamed the government for creating their own discomfort. Kind of like blaming someone else for when you hit yourself in the face on purpose to get attention. “You made me do this!” they cried. No, they didn’t, and worse, it was not only tactically incompetent (the votes had nothing to do with the demand then, and it doesn’t this time either), but by overplaying their hand, they voted against line items in the Estimates for things like funding veterans pensions or public services, all of which went into attack lines. And this time, because the government scheduled the vote for 10:30 PM, the fact that the Conservatives forced the 200 votes rather than the single vote means that Liberal MPs can complain that the Conservatives were keeping them from attending Eid celebrations in their ridings at dawn (some of them going so far as to cry Islamophobia). It’s a reach, and both sides are self-righteous about this, but come on.

As for the Conservatives’ demand, well, it’s a lot of disingenuous nonsense because the costs will be determined by how the revenues are recycled, which the federal government has no control over. Poilievre has been trying the semantic arguments that because it’s a federally-imposed tax that they need to know what the impact will be, focusing only on the cost before revenues are recycled, which is again, disingenuous and the precursor to misinformation. And if they were so concerned, they can do the analysis themselves – as Andrew Leach points out. But they don’t want to do that – this is all cheap theatre, performative outrage that the government is “covering up” information that they’re characterising as something it’s not. But as truth and context have become strangers in this parliament, none of this is unexpected.

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Roundup: More Bernier fallout

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Because we can’t stop talking about the Maxime Bernier “ouster,” if it can really be called that since it was more a demotion than anything, but it still got all of the tongues wagging, and all of the reporters cornering every Conservative they could find. And most of those Conservatives downplayed the whole thing, Erin O’Toole going so far as to say that hey, there are other shadow cabinet changes coming so no big deal. The underlying message was that Bernier “broke his word” about the book chapter, which is a semantic game, but given some of the various dynamics in play, it’s hard not to try and find additional drama into the whole affair.

https://twitter.com/InklessPW/status/1006872600994123777

https://twitter.com/acoyne/status/1007085698803949568

That Rob Silver tweet may be even closer to home than most people want to admit. I have to say that there have been some pretty spectacular expectations heaped on Bernier, particularly because he speaks to a certain slice of the party, but perhaps in a more superficial way than they want to believe. After all, many of the Ayn Rand-readers are desperate to attach themselves to someone in the party who represents them (never mind that this isn’t a party of libertarians or even economic conservatives, but right-flavoured populists), so he was someone that they could pin those hopes to, ignoring a lot of what he actually said and did. His lack of judgment when he was foreign affairs minister under the Harper government was stunning, both in his intemperate comments in Afghanistan, or with the security of documents with his then-girlfriend. During the leadership campaign, he would sign off on social media campaigns that dogwhistling to MRAs before claiming he didn’t know about the connotations of “red pills” and so on (and knowing who was running that campaign, they couldn’t not know what it meant). And his constant self-promotion in opposition to Scheer post-leadership is another sign of poor judgment. And really, we shouldn’t discount this particular bit of reasoning.

In further analysis on the whole brouhaha, John Ivison keeps his ear to the ground in the caucus and wonders if Bernier’s ouster from shadow cabinet may force a rift in the party given how close the leadership vote was. Chantal Hébert notes that it was probably a matter of time before things with Bernier came to a head (as she suggests he’s not too well-liked among his Quebec colleagues) and that the by-election timing made it something Scheer couldn’t ignore. Andrew MacDougall sees this as a failing by Scheer to manage his caucus, not properly communicating with Bernier when necessary, and keeping him outside of the fold at a time when he should have drawn him in to get his cooperation on the issue at a time when it’s under attack by the likes of Trump. Andrew Coyne similarly sees this as a failing by Scheer, but for the fact that he has bought into the line that caucus must sing from a single song sheet, particularly on an indefensible policy like Supply Management. Colby Cosh sees not only political games from Bernier, but explicit quid pro quo from Scheer for his dairy supporters who (allegedly) put him over the top in the race (though I’m not sure we have any actual proof of this), and that those dairy lobbyists have successfully leveraged intra-party dynamics to their advantage.

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Roundup: Undead electoral reform concerns

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With BC’s electoral reform referendum on the horizon, and vague promises around it from the Ontario NDP as the election draws to a close, we’re apparently talking proportional representation again. Sigh. Over the weekend, Jean Chrétien made the particular case in his idiosyncratic way that the reason why it’s a bad system, and the core of his argument is that it doesn’t force people to engage with voters. Door knocking to win a riding? Democratic. Being a party wonk who gets in because they’re on a list? Not very democratic. It’s a way of looking at the practical inputs and outputs of the system that most people gloss over when they whinge about the popular vote (which, I will remind you, is a logical fallacy because general elections are not one single event, but 338 separate but simultaneous events) and how “unfair” it seems when viewed through this skewed lens.

As for this referendum in BC, it’s a bit of a dog’s breakfast with its two-stage vote – the first vote as to whether to keep First-Past-the-Post or to adopt a system of proportional representation; the second stage being to choose between three systems – mixed-member proportional with some regional weighting, dual-member proportional, and a hybridized system where urban ridings would have single-transferable-votes, and rural ones would have some kind of proportional system akin to MMP. But there are problems with all three choices – the regional weighting associated with their version of MMP exists nowhere in the world so we don’t know the outcomes; the dual-member proportional is a theoretical system dreamed up by some University of Alberta system that exists nowhere in the world and we really have no idea if or how it would actually work; and the split urban-rural system would never pass constitutional muster. If BC’s attorney general thinks that the Supreme Court would allow different voting systems based on where you lived, I suspect that he’s dreaming, and it would have to be one hell of an excuse to try and save this with Section 1 of the Charter (being that it’s a reasonable curtailing of your rights and freedoms in a free and democratic society). So, good luck with that.

Meanwhile, Andrew Coyne is no fan of the two-stage referendum and would rather simply prefer a single ballot where status-quo was an option like they did in PEI. Where Coyne goes wrong is when he said this as successful in PEI – it really wasn’t. They had to go some five ballots before a PR system squeaked through by the narrowest of margins with unusually low voter turnout for a province that typically takes voting very seriously. Colby Cosh, meanwhile, quite properly lambastes the whole affair as being completely gamed, because aside from the way in which they’re dubiously counting the second ballot if one system doesn’t get a majority from the start, there are still too many unknowns in the three proposals, including whether the proportional lists would be open or closed – a very huge consideration in how PR systems work, and which goes to the heart of holding governments to account in these systems. In other words, this BC referendum is shaping up to be a boondoggle from the start, which is not good for our democracy in the slightest.

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Roundup: Justifying a belligerent tone

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Two days after the American tariff announcements, and I found myself still struck by the tone that the federal Conservatives have adopted with this, squarely blaming Trudeau rather than the uncertainty engine known as Trump, and engaging in the same kind of disingenuous narrative-building to justify their stance. In particular, they have been trying to claim that when Trudeau made his tour of steel and aluminium plants earlier in the year, that it was a “victory tour,” which is vastly different from how I remember it. Back then, it was about reassurance and the prime minister wanting to tell them that he had their backs and given that the government was ready for these tariffs to happen and had a package of retaliatory measures ready to go, it means that they didn’t take the reprieve for granted – entirely negating the premise of the Conservatives’ attack lines. Not that facts matter. They are also insistent that the Trudeau government has allowed itself to get “distracted” by the feel-good chapters around labour and gender in NAFTA negotiations, which again, is novel if you pay the slightest amount of attention to what’s been going on. But this isn’t about truth – this is about building their narrative that Trudeau is a dilettante who is incompetent and that the Conservatives are the real grown-ups in the room (despite evidence to the contrary). And because people have let Scheer and company lie with impunity on all sorts of files for months now, they feel emboldened to take this course of action, despite how gauche or out of step with other conservative voices in the country it may be, because they see this as their long-term game plan. And we’ll see if any of those voices call them out on it.

As for the impact of the tariffs, it turns out that they could have a far less detrimental impact on Canada’s aluminium industry because it exports more product to the US than we do steel, and America’s own smelters are older and less efficient than Canadian ones, meaning that these tariffs won’t do anything to help support the US industry, and American producers say that they could do more harm than good. Steel, of course, is a different story. The whole tariff issue, meanwhile, could mean that the lock that the American arms industry has on our military procurement may be at an end, and that our Forces may start looking to Europe for equipment instead – something that may actually be more affordable, but the tendency had been to buy from American producers under the guise of “interoperability” with American forces. As for the American companies facing retaliatory tariffs, well, they’re still learning about them, but most don’t seem too concerned. At least not yet. And many Republicans and businesses are lashing out at Trump for the move – including anchors at Fox Business.

In further reaction, Andrew Coyne believes that the sheer size of the US economy means that our retaliation will come to nothing, and even if we coordinate with other countries, we’re unlikely to change Trump’s mind, so better to work to contain the US presidency. Susan Ariel Aaronson suspects that the tariffs will weaken America’s national security interests rather than strengthen them, as Trump has used as the excuse to enact them, while Andrew MacDougall thinks that Trump’s move may benefit Doug Ford, who pledges to lower taxes and cut red tape that may appeal to people who think this can help keep Ontario’s economy competitive.

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Roundup: The first salvo of a trade war

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It looks like we’ll officially be in a trade war with the United States, thanks to the decision of the American government to slap steel and aluminium tariffs on us as a direct consequence of NAFTA not being renegotiated (under the guise of “national security” concerns), and the Canadian government has opted to retaliate. And we also learned that a NAFTA deal was on the table, but because we refused the five-year sunset clause (as well we should have because it would present too much uncertainty to industry), the Americans walked away from the deal. So that’s a pretty big deal.

The tariffs could have pretty big knock-on effects on our economy, and it won’t really help the American steel industry, which is already operating pretty much at capacity, so much of Trump’s justification evaporates. And Canada’s retaliatory measures, calculated to be dollar-for-dollar on the US-imposed tariffs may sound like an odd list that includes things like yogurt, candy, pizzas and pens, it’s all carefully calculated to target the industries of swing states and key American legislators as they start heading toward mid-term elections. The objective of course is to put pressure on them, who should in turn put pressure on Trump. In theory. We’ll see.

Meanwhile, Aaron Wherry looks at how Trump is ignoring the basics of statecraft and getting away with it with impunity. Paul Wells suspects it’s time to start snubbing Trump rather than appearing eager to get a deal accomplished, since that’s what he’s more focuse don in the first place. Stephen Saideman says that Canada needs to retaliate somehow, lest it feed Trump’s perception that “maximal pressure” works in negotiations.

https://twitter.com/dgardner/status/1002189314107703297

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Roundup: An unnecessary proposal to cover for abdicated responsibility

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When Parliament resumes next week, and the final push of legislation before the summer break starts, I can pretty much guarantee that there will be some gnashing and wailing of teeth in the Senate about the crush of bills headed their way, and the fact that there isn’t a plan to manage it. And from Government Leader in the Senate – err, “government representative,” Senator Peter Harder, we’ll get a reminder that he’s proposed a business committee to do said managing of the Order Paper. And lo, in Policy Options yesterday, we got an endorsement of the notion of a business committee from a former political science professor, Paul G. Thomas, which read a lot like it was could have been commissioned by Harder’s office.

To wit: One of the reasons why I object to the creation of a business committee is because it will create a powerful clique that will determine the legislative agenda of the chamber in a manner that has the very real possibility of trampling on the rights of individual senators in the name of expediency. Currently the rules allow for any senator to speak to any item on the Order Paper on any day – something Thomas notes has the potential to delay business, but under most circumstances, this can be managed through negotiation, and if abused, a vote can be used to clear that obstruction. But what Thomas’ glowing endorsement of the notion of a committee ignores is the fact that sometimes, it can take time for a senator who sees a problem with legislation to rally other senators to the cause. We have seen examples of that in the current parliament, with bills like S-3, which wound up getting majority support from senators to fix the flaws in the bill, or even with the amendments to the omnibus transportation bill last week, where Senator Griffin’s speech convinced enough senators that there was a real problem that the amendment was meant to correct. Having a business committee strictly lay out timelines will stifle the ability for the Senate to do its work when sometimes it needs time to do the work properly.

One of the reason why this kind of committee should be unnecessary is because the Senate has operated for 151 years on the basis of the caucuses negotiating the timelines they need at daily “scroll meetings,” but it requires actual negotiation for it to happen, and since Harder took on the role of Government Leader, he has eschewed his responsibilities to do so, believing that any horse-trading is partisan. Several of the new Independent senators follow a similar mindset, which is a problem. And while Thomas acts as Harder’s apologist in trying to downplay the criticism that a business committee will simply allow Harder to stage manage the legislative process – and it is a possibility that he could, but only in a situation where there are no party caucuses any longer, and that the Senate is 105 loose fish that he could co-opt as needed – my more immediate concern is that he would use the committee to avoid his actual responsibilities of negotiation and shepherding the government’s agenda, more so than he already has. We already don’t know what he’s doing with this $1.5 million budget and expansive staff, so if he is able to fob off even more responsibility onto this clique, what else does that leave him to do with his budget and staff? It’s a question we still don’t have any answers to, and yet another reason why the creation of such a committee is likely to lead to more problems than it does solutions that aren’t actually necessary if he did his job.

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Roundup: The problem with coalition speculation

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We’re only a few days into the Ontario election campaign, and we’re already hearing far too much of the c-word for my liking. And by c-word, I mean “coalition” (though I have no doubt that the other c-word is being uttered by trolls over social media). And it’s so utterly frustrating because most of the time, the talk isn’t accompanied by any particular understanding of how Westminster governments work so you get a ham-fisted attempt to force coalition talks into the early days of a campaign, during which the polls could easily swing (and have in the past). And yet here we are.

Paul Wells did a great service by calling out this kind of talk in Maclean’syesterday, reminding everyone – and especially We The Media – that this kind of talk, especially on the back of torqued headlines, doesn’t really help anyone. Why? Because, aside from the fact that it’s just pure speculation, and that it distracts from actual issues at play, it also forces leaders to start ruling out hypotheticals that aren’t in play but one day might be. He also makes the salient point that post-election, things are not on a level playing field – the incumbent government is still the government, regardless of how many seats they won, and it sets up interesting scenarios if the seat counts are close, as what happened in BC last year. And time and again, media commentators seem to utterly forget that fact, which becomes extremely frustrating as they give authoritative commentary about things that are in contradiction to the realities of how the Westminster system operates.

https://twitter.com/AaronWherry/status/996229744285794304

Now, I sort of appreciate what Wherry is saying there, but the problem is that unless and until our media commentators bother to learn how the system operates, we will continue to trade in misinformation, that gets torqued for the sake of headlines, and it will exacerbate the situation and make it worse. Remember the prorogation crisis of 2008 that was precipitated by a potential coalition government willing to step in if they defeated the Harper government on a vote of non-confidence? And how the government’s talking heads were giving all kinds of nonsense answers about it being “anti-democratic,” or that they were going to “go over the head of the Governor General” and incite civil unrest if she let Stéphane Dion and Jack Layton form government? Don Newman was the only journalist who challenged these statements to their faces at the time, and, well, Don’s retired from the news business, and the rest of the pundit class hasn’t learned much since then, unfortunately, so I really am not confident that there would be pushback to wrong notions that will get promulgated if a coalition does become a reality in Ontario post-election. But as Wells pointed out, this kind of pointless speculation is the kind of empty calories and time-wasting that is irresistible to the media landscape. Meanwhile, I’ll be right here, head exploding.

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Roundup: Morale over policy

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It’s the Liberal Party’s big policy convention in Halifax this weekend, and it’s already consumed with the pre-election narrative, never mind that said election is a year-and-a-half away. And while it’s supposed to be about policy, and developing the ideas that are intended to shape the next election platform, it’s really more about morale, and finding inspiration to go out and do the door-knocking (as Sophie Grégoire Trudeau’s keynote spoke about). It’s about reminding the party that they need to keep up a united front and “have the Prime Minister’s back,” and totally not worry that they won’t be able to keep all of their seats in Atlantic Canada or the West. No ma’am.

When it comes to the policy resolutions, they are very much of the left-wing/progressive side of the party. Almost entirely so, in fact, some of them exactly the same kinds of demands that the NDP have made, making me wonder what’s left in their big tent for the more fiscally conservative, “blue Liberal” members to grasp onto. The most talked about resolution so far is that around decriminalising small amounts of all drugs so that they can be treated as a public health issue instead of a criminal one, as has been done successfully in Portugal. In contrast to the health minister, Jody Wilson-Raybould says she’s open to decriminalising, and reforming prostitution laws (which is another resolution). In an interview with Power & Politics, however, Petitpas Taylor refused to say one way or the other how the government would consider a successful vote by the convention on the issue, deferring instead to keeping an open mind.

But while everyone is going to talk policy on a superficial level this weekend, I have to raise the point that the party has so centralized their operations and policy machinery that this is only superficially a grassroots movement, and instead is an exercise in confirming the policies that the leader’s office is floating. Because the Liberals have so disempowered their grassroots when they changed the party constitution at their previous convention, there is little hold for the grassroots any longer. This is a problem with how our system is supposed to work, and is a direct result of the ways in which we have so utterly presidentialized party leadership contests so that they are now repositories of vast power that can’t be challenged, and everything is being reworked to be top-down instead of bottom-up. While this is all being done under the rubric of being modern, and nimble, it’s corrosive to how politics is supposed to work in this country, and we’ll see how long it takes for party members – err, “registered Liberals” to figure out that they’re being played and they start to demand their rightful power back.

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Roundup: Beer still imprisoned

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The Supreme Court of Canada delivered their ruling in the Comeaucase yesterday, which deals with the subject of interprovincial trade barriers – in particular, those around alcohol. While this case has been widely championed as “free the beer,” what we got came down to an exploration on the nature of federalism in this country – and many observers were keenly unimpressed as they chose to uphold those particular barriers.

https://twitter.com/InklessPW/status/986964159530057728

First of all, read this Q&A with University of Ottawa vice-dean of law Carissima Mathen about the decision, so that you get some sense of how the constitution operates here, and why the Court is loathe to interfere in something of this magnitude. It’s not just alcohol sales that could be affected – its knock-on effects include supply management schemes (which the Conservatives have yet to reconcile with their “free the beer!” sloganeering), public health prohibitions, environmental regulations, and so on. And more technically, the case that led up to this decision was a lower court judge making an interpretation of settled law that they felt wasn’t robust enough to justify overturning that jurisprudence – not enough had changed – and they upbraided said judge in the ruling. This is also something that can’t be taken trivially in the decision.

https://twitter.com/cmathen/status/986988440163143681

https://twitter.com/kylekirkup/status/986968367205634048

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And then there are the critics. University of Alberta law professor Malcolm Lavoie says the decision privileges some parts of the Constitution over the other, while John Ibbitson looks at what the knock-on effects could be and wonders if the result wasn’t for the best. Emmett Macfarlane is not sold on that, and feels that the Court feels too bound by old JCPC decisions that undermined the text of the constitution when they should instead be upholding it – that the intent of the Founding Fathers was indeed a centralized economic union. Some commentators think that the decision could legitimize Alberta’s bill to limit oil exports to BC, but frankly I think that analysis is beyond absurd. I do have to say that I have a degree of sympathy for the Court in not looking to overturn the entire federal order, because there would be monumental blowback. But it’s not like they said that it couldn’t be done – what it needs is the political will for the legislatures to come to an agreement on this, and there is a new internal free trade framework that is coming into place where there’s a better forum for having these discussions than we’ve had in 150 years of confederation. And I think that perhaps those who felt that the Court needed to do the work of the legislatures on this issue were doing so a bit inappropriately because we keep insisting that the Court do the hard work that the legislatures won’t, and perhaps this is another wake-up call that we need to do the actual work of making tough decisions in this country on our own.

https://twitter.com/AaronWherry/status/986991062584582144

https://twitter.com/EmmMacfarlane/status/986975038652821506

https://twitter.com/EmmMacfarlane/status/986976381794861061

https://twitter.com/PhilippeLagasse/status/986968227556179968

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Roundup: Let’s not punt it to the Supreme Court

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As the Trans Mountain pipeline expansion drama continues to chug along, we saw that Bill Morneau had a meeting with Rachel Notley and while nothing specific was announced, it was stated that something is on the way in fairly short order. Add to that, Jim Carr was doing the media rounds saying that the pipeline will get built, and it’s a question of how, which is an important clue. And then came Jagmeet Singh, who decided that his contribution to this is to insist that this all get referred to the Supreme Court of Canada in a joint federal/provincial/First Nations reference. Because showing political leadership apparently means fobbing off the tough questions to the Supreme Court. He also suffers from the delusion that the Court could act swiftly on this, ignoring that it would take six months to even pull a reference together (seriously – the Court wouldn’t hear it until the fall at the earliest). And then his environment critic went on Power & Politicsand said that even if the Supreme Court ruled in favour of the federal government and that the project could go ahead, they’d still oppose it because obviously it would be a wrong decision. Yeah. Okay.

https://twitter.com/InklessPW/status/984117292945498117

https://twitter.com/EmmMacfarlane/status/984120318544396288

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As Carissima Mathen explains in this segment of The House, the Supreme Court doesn’t like to be used for political purposes, reference questions are generally of general application, and even referring the question of jurisdiction to them would imply that there is doubt that the federal government has it, which settled case law clearly demonstrates that they do. (Likewise, going Jason Kenney’s route and invoking Section 92(10)(c) implies that there is doubt that these pipelines are federal jurisdiction when we know that they are, hence why it’s not only a redundant course of action, but it creates damaging precedent). And that’s why Morneau was pretty explicit when he shot down Singh’s proposal yesterday – they know they have jurisdiction, so it would make no sense to refer it to the SCC. On a related note, the BC NDP have changed their rhetoric around using every tool in the toolbox to oppose the pipeline and are now pledging to use all tools to protect their coastline and environment, likely because they got a legal opinion that said that they have no jurisdiction.

Meanwhile, Jennifer Ditchburn notes that Indigenous protests against the pipeline aren’t a side plot – and she’s right, but it’s also separate from the jurisdiction issue, and should be treated as separate. (I also suspect that the government will argue that approval was given before they legislated implementation of UNDRIP, and that they did additional consultation and created the Indigenous-lead monitoring committee, so that should satisfy Section 35). Chantal Hébert sees few options that the federal government could use that would still maintain provincial peace. David Moscrop wants everyone to cool their jets because this isn’t actually a crisis, but rather how democracy and federalism actually work. Jen Gerson looks at how this failure would be the signal of a bigger market failure in Canada, and open us up to creating an institutionalized culture of kickbacks and corruption when it comes to major projects.

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