Tag Archives: Supreme Court

Roundup: Feeding the fear industry

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

https://twitter.com/inklesspw/status/937735816637534208

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

https://twitter.com/aaronwherry/status/937736388732125185

https://twitter.com/aaronwherry/status/937737513908744192

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

https://twitter.com/cforcese/status/937745443894714379

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https://twitter.com/cforcese/status/937746584481161217

https://twitter.com/emmmacfarlane/status/937748142119731200

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

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Roundup: The abuse of “appearance”

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Breaking! Ethics Commissioner wants to talk to Bill Morneau about that share sale! To which I immediately yawn and say, “Yeah, and?” Because we are beyond the point where any of these stories are actually advancing the story in a substantive manner, and we’re well past innuendo, and are now onto a full-on pile-on in the attempts to make something, anything, stick.

https://twitter.com/aradwanski/status/936327645331181568

This attempt to try and create some issue around insider trading has been nothing short of ludicrous because none of the facts bear the slightest scrutiny, nor does any of their internal logic hold-up in the face of the other allegations. If he was really interested in “insider trading” (which isn’t actually possible from his position), why wouldn’t he wait to sell those shares until he tabled Bill C-27 and Morneau Shepell’s share prices spiked (temporarily)? But really, none of it makes adds up, and Andrew Coyne constructed a pretty good takedown of the allegation here. And Mary Dawson saying she’ll give Morneau a call sounds pretty pro forma here, given that this is in response to yet another of Nathan Cullen’s demands that she look into his dealings in the vague hope of her finding something, anything, that Cullen can use to any tactical advantage. But as both the opposition and some of the more mediocre journalists in the Gallery continue to carry on this campaign, it has the very definite potential to backfire – especially as Morneau is taking the gloves off now that his father is being dragged into the fray. As Terrence Corcoran points out, the Conservatives are the ones who are now acting unethically, not Morneau (and I’m sure you could add a couple of aforementioned journalists to this list, because their reporting on this has been anything but responsible).

But when this short thread from Howard Anglin was pointed out last night, it became clear to me where the real problem lies.

https://twitter.com/howardanglin/status/936811642389594112

https://twitter.com/howardanglin/status/936813835972894720

The problem here is not Bill Morneau – it’s Justin Trudeau, and the high-minded language he put into the mandate letters about being seen to be conduct the affairs without the appearance of conflict. What that turned out to be was an invitation for abuse. Because of the word “appearance,” all that anyone – opposition MP or mediocre journalist trying to make a big score – has to do is line up unrelated or conflated facts in a completely disingenuous manner and say “See! It looks like a conflict! This goes against the mandate letter!” Never mind that none of the allegations, whether it’s the cash-for-access (which wasn’t really cash for access) caterwauling months ago, or this Morneau nonsense now, bear up under the slightest bit of scrutiny – they are simply counting on it being the appearance of a conflict, and crying foul. We’re no longer dealing with issues of substance, but rather, the manufacture of optics in deliberately dishonest ways, because Justin Trudeau gave them an open invitation to. This is the state of our democratic discourse at the end of 2017. We should be embarrassed.

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Roundup: Demands for MP parental leave

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Some MPs are looking for changes to the Parliament of Canada Act in order to better accommodate parental leaves, given that they have no provision for them, and MPs start getting salaries clawed back if they miss more than 21 sitting days. (Mind you, records of those absences aren’t made public, so we have no way of checking). And while I’m sympathetic to the notion that there is no parental leave, I find myself sighing because there is this constant need by MPs and the press to describe Parliament as a “workplace,” and try and ham-fistedly force a number of hackneyed comparisons to justify it.

No. Parliament is not a “workplace.” And MPs most certainly are not employees.

I understand that it’s a job that’s not the friendliest for new parents. And I get that there is this desire to get younger voices into parliament, and there is a need to facilitate them, which is great. But I get very, very nervous every time MPs start talking about how they want to start changing things to make the place more “family friendly,” because every time they’ve done that to date, they’ve made things worse. Eliminating evening sittings to be more “family friendly” had a devastating effect on collegiality because MPs no longer ate together three nights a week. Now they’re looking to avoid coming to Ottawa altogether, instead appearing by videoconference instead, and no doubt they’ll demand to be able to vote remotely as well. And that is a bridge too far.

When you get elected, it’s to do the job in Ottawa. Work in the riding is secondary to your role as an MP, and that role is to hold government to account. Meeting constituents, while good small-p politics, is a secondary consideration to your duties. And the added danger in appearing remotely is not only a further breakdown in what remains of collegiality, it’s that the lack of facetime with other MPs and with witnesses who appear at committees means that there is no ability to forge connections or have off-script conversations, which are the lifeblood of politics. You need to show up to do the job. Your job is to be in Ottawa to vote and be seen voting, and to attend debate and committees. You knew that when you ran for office, and you knew that when you decided to have a child while in office. Trying to do this job remotely means that soon every MP will start to demand it, until the Commons is reduced to a small cadre of people there to fulfil quorum while everyone else attends to the “very important business” in their ridings.

The other point is that these MPs are not lacking in resources when it comes to finding childcare solutions – they are very well compensated, and can afford options that most Canadians can’t. That does matter in the equation, and why my sympathy has its limits.

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Roundup: A new justice named

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Justice Sheilah L. Martin of the Courts of Appeal for Alberta, Northwest Territories and Nunavut, has been nominated as the next Supreme Court of Canada justice, slated to replace outgoing Chief Justice Beverley McLachlin. Martin, who was born and educated in Quebec and is fluently bilingual and knowledgeable in both common law and Quebec’s civil code, and has been on the bench in the North as well as the west. She was once dean of a law school and has not only contributed to legal scholarship, but has also weighed in on some significant cases in her time on the bench, with pretty well-considered judgments. She is not, however, Indigenous, like many had been hoping. (For more on Martin, here is the link to her application questionnaire, and also follow the embedded Tonda McCharles tweet thread).

The issue of demanding bilingual judges is going to be an impediment for Indigenous candidates, for whom it creates an additional barrier, and when NDP leader Jagmeet Singh dared to suggest that perhaps they create an exception to that would-be rule for Indigenous nominees, he was forced by the rest of his party to walk back from that statement in favour of some platitudes about helping would-be Indigenous candidates with official language capacity instead. Note that NDP MP Romeo Saganash has come out against party policy to say that this demand for official-language bilingual judges hurts the cause of more Indigenous justices on the bench, but apparently that perspective is being silenced.

https://twitter.com/EmmMacfarlane/status/935967327962697728

https://twitter.com/EmmMacfarlane/status/935968214022086656

While some Indigenous lawyers are upset by the choice of a non-Indigenous jurist, I think we do need to recognize that the feeder pools with provincial Superior courts and the Courts of Appeal still have large diversity problems, which is why this government went about reforming the process to appoint those judges (and partially why it’s taking so long to fill those vacancies). When the trickle-down starts to happen there, it will mean a bigger pool of diverse candidates available in the future that may not be there right now. Of course, we won’t know the demographics of who applied to this round, so that does matter as well (and we won’t know for another month), so we may get more answers at that point.

https://twitter.com/cmathen/status/935924061779062785

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Roundup: An historic apology

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As promised, Justin Trudeau delivered a long-awaited apology for those LGBT Canadians who had been persecuted and hounded out of jobs in the civil service, military and police forces as a result of government policies, and to go along with this apology will be some compensation. (The speech and video are posted here). As well, a bill was tabled that will expunge the records of anyone caught up in these processes, but as Ralph Goodale explained on Power Play, the bill requires an application as opposed to the government doing a blanket action, and won’t cover some of the other charges such as being a found-in during a bathhouse raid. That could set up for an interesting future legal challenge, for the record.

So who does this apology affect? Some examples heard yesterday include Diane Doiron, who spoke to Chatelaine about her experiences, or former sailor Simon Thwaites, who was on Power Play.

While some may dismiss the rash of apologies from the Trudeau government as “virtue signalling” or being soft, history shows that official apologies tend to come more from conservative sources than liberal ones. Aaron Wherry, meanwhile, notes that while the Conservatives did participate in yesterday’s apology, they have been making a lot of political hay of late trying to show themselves in opposition to those who would “denigrate” the history of Canada, or who constantly find fault with it rather than praising it uncritically. And yes, it is an interesting little dichotomy.

Those who say that the apology doesn’t go far enough, pointing to the ongoing blood donation ban facing gay men who have had sex in the past year (note: this is a change from the previous lifetime ban) still hasn’t been lifted as promised, the government did put in research dollars to ensure that the proper scientific evidence is there to lift it permanently. While critics say that this remains discriminatory, I remind you that previous governments had to pay dearly for the tainted blood scandals of the past, which is doubtlessly why the current government wants to ensure that all of their bases are covered and untouchable legally in the event that any future lawsuits from this change in policy ensue.

Regarding those Conservative absences during the apology:

During the apology speeches in the Commons, I and several others noted that there were a number of conspicuous Conservative absences – some 15-plus vacant desks, all clustered in the centre of their ranks, which looked pretty obvious from above (and this matters when you’ve got the galleries full of people who have come to hear the apology). I remarked on this over Twitter, and it created a firestorm, especially when I highlighted the vacant area on the seating chart. Some of these absences are legitimate – some MPs were away on committee business, and I got flack from some of them for that afterward, feeling that it was a cheap shot, and if that’s the case, then I do apologize. It wasn’t intended to be, but it was pointing out that the giant hole in their ranks was conspicuous, especially as this was not the case during QP, which immediately preceded said apology. I will also note that none of the Conservative staffers who monitor my Twitter feed (and I know that they do, because they constantly chirp at me by claiming I’m too partisan in my QP-tweeting), offered up a correction or explanation until hours later, which I would have gladly retweeted if provided one. They did not. I can only work with what I can see in front of me at the time, and if some of those MPs who were there during QP went to fill the camera shots on the front benches, that’s still a poor excuse for leaving a giant hole in the middle of their ranks that the full galleries can plainly see.

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Roundup: Uncritical about the playwright’s lament

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Toronto playwright Michael Healy apparently took to the Twitter Machine to plead with the government to ditch their talking points and talk like human beings. Aaron Wherry in turn wrote this up as wondering why politicians don’t talk like they’re on the West Wing, but didn’t actually look at the reasons why message control has taken hold – never mind that nobody actually talks like they’re in an Aaron Sorkin production (because honestly, the sanctimony alone…) But in all honesty, it would have been a useful exercise to see why some of this has become entrenched.

For one, part of the problem is the format of Question Period in the Commons, where the strict 35-second clock makes reasonable answers all-but impossible in most cases. I’ve had staffers tell me that they have to prepare scripts, not because their ministers don’t know the subject matter, but because they need to keep it within those 35 seconds and that’s the easiest way. I can’t say that I’m necessarily sold on that – or too sympathetic – but I can see why the temptation is there.

Part of the problem is the way in which branding has taken hold of politics to such a degree that there is a perceived need to drill slogans into people’s brains – things like “Strong, Stable Conservative Majority™,” or “The Middle Class and Those Looking to Join It™.” One of my pet peeves is “The Environment and The Economy Go Together™” because I know that the minister who keeps saying that is capable of answering questions in a reasonable manner and could do so if she stopped delivering that line, but that’s the message that she wants to drive home. Even though we get it.

And part of the problem is the way that We The Media treat frankness – we punish them for it. Witness what happened two weeks ago when Carla Qualtrough went on CTV’s Question Period, and Evan Solomon picked the $1 billion figure for a possible Phoenix price tag out of thin air, and when Qualtrough said, frankly, that she didn’t know but she couldn’t rule it out, suddenly CTV ran with the “billion dollar” headline, and absolutely everyone else followed suit. It’s now stuck to the Phoenix issue in most headlines, never mind that it wasn’t what she actually said, but her moment of frankness is now being treated as some confession that we will tar the issue with. We The Media have been repeating the mendacious and disingenuous framing devices around the interminable Morneau Shepell questions uncritically – and in some cases, fuelling them in a complete absence of fact of context *cough*Globe and Mail*cough* and anything that the ministers say becomes a trap.

So why, then, would any minister want to be frank in their answers, if we’re just going to punish them for it? Unfortunately, we don’t seem to have the self-awareness to process this – that we are part of the problem that drives this issue to turn all government messages into pabulum. We do this to ourselves. Let’s think about that.

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Roundup: Phoenix transactions and rules culls

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Public services minister Carla Qualtrough sent a letter to public servants apologizing for continued Phoenix pay problems as the number of backlogged transactions reaches 520,000. But that’s what I think needs to be highlighted here – these are transactions, not public servants being affected, which we don’t have a clear number on. Part of why there are so many backlogged transactions – and likely to be growing for the short term – is because the new collective agreements came into force, which add new complications to the ongoing transactions, so while those get sorted, the backlog may continue to loom large. Apparently, there was also a recent chance in how these were being addressed, so we’ll see how much of an effect that has on the outstanding transaction total.

Meanwhile, public service union PIPSC is calling on the government to cull the number of convoluted pay rules that are currently clogging the system, but this is one of those issues where I’m not sure that they may be a wee bit disingenuous. PIPSC maintains that it’s all Treasury Board’s fault that there are so many rules, because they’re the ones who ensure there are all of the exceptions around overtime or acting status, and so on, and that they should be the ones to do the cull. But as Kathryn May points out, there is a reluctance to do this, even by means of special negotiations, because the unions are very touchy about any particular changes that they might see as rolling back any employee’s rights or benefits. And if you don’t think the reluctance is real, if memory serves, the last public service strike happened when the government wanted to phase out some old classifications with few employees in them, and the unions balked. (I also seem to recall that the deal they ended up getting was possibly worse off to save these obsolete classifications, which soured many of the public servants that I knew on the whole thing). So yeah, there are problems with the vast number of pay rules in place, and that has certainly had a detrimental effect on the whole Phoenix pay system, but I think that if the unions aren’t engaging in any self-reflection over this, then that may be adding to the problems.

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Roundup: Blame Dawson or the system?

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As the Bill Morneau imbroglio starts to fade behind the outrage du jour, being the Paradise Papers, Andrew Coyne decided to take another crack at the issue, this time taking a swing at Conflict of Interest and Ethics Commissioner Mary Dawson and her handling – or mishandling – of the whole affair from the beginning. The problem of course is that Coyne’s piece relies heavily on commentary from local civically illiterate crank and guaranteed quote machine Duff Conacher, for whom everything is evil and wrong, and why he hasn’t yet been labelled a vexatious litigant by the courts is beyond me. Regardless, it cannot be denied that yes, Dawson herself is a problem, but not the only problem.

A few days ago, Andrew Potter wrote a piece in the Globe and Mail about the whole sordid history of why we have the Commissioner position in the first place, and why it has always been a problem. And he’s right in pointing out that the point of this position has been politicized from the beginning, but as with so many of our watchdog or “Independent Officer of Parliament” positions these days, they exist as much to deflect problems onto as they do to act as the instrument by which the opposition can use as both a cudgel to launch their attacks, and a shield to hide behind if there is any counter-fire.

And to that end, we can’t simply blame Dawson herself – as much as she is and always has been part of the problem. Much of that lies on MPs themselves, who created the regime, wrote rules that don’t include ethics guidelines, and when presented with the litany of problems with the legislation, shrug and make minor tweaks without addressing the big stuff. And it happens constantly, so when imagined scandals happen, they can scream and rail that just following the rules isn’t good enough, but that the alleged transgressor must have known better and should have exceeded them. Never mind that it’s a nonsense frame to put around issues, but these are also the same rules that those MPs put into place. Saying that the rules they created for themselves aren’t good enough is galling, and one has to constantly ask why they didn’t create rules that were good enough in the first place if they knew that there were problems – and yes, they did know, because Dawson herself identified them. It’s childish politics, and just manages to make a farce out of their feigned outrage (not surprisingly).

Meanwhile, Conacher managed to get a whole piece out of the Star by complaining that the government is wrong in saying there aren’t enough qualified candidates for the Ethics and Lobbying Commissioner positions because he applied for the Lobbying Commissioner position and hasn’t been chosen. Err, that may be a reflection on you, Duff, and this exercise in your ego may be part of the reason why you’re not chosen.

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Roundup: One is less than five

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As the whole Bill Morneau issue continues to run on outrage fumes, Conflict of Interest and Ethics Commissioner Mary Dawson’s office has been unhelpful in the least when it comes to trying to put this issue to bed. Two days ago her office said that “fewer than five” ministers held assets indirectly, and when this came up in QP on Wednesday, Trudeau confirmed what certain journalists had noted from the public disclosures – that it was Morneau and Jody Wilson-Raybould, who had since divested those shares. End of story. But no, then Dawson’s office responded to reports in the Globe and Mail that they were somehow “at odds” with the PM over just how many ministers were in such a situation (The Globe? Sensationalize something? Unbelievable!), and that one – Monreau – qualified as “less than five.” And that set the Twitter Machine ablaze, and turned QP in the gong show that it was of demanding to know which five ministers it was, despite the fact that this had already been answered on numerous occasions.

https://twitter.com/robert_hiltz/status/926118857814704129

https://twitter.com/robert_hiltz/status/926121460640468992

Yes, the Conflict of Interest and Ethics legislation is a mess that MPs refuse on a continual basis to do anything about when the issues are pointed out. Yes, Mary Dawson herself has largely been seen as unhelpful because she has had a tendency to read her mandate so narrowly that issues brought before her are deemed out of her purview. But as I’ve stated before, it’s rapidly turning into a job that nobody else wants, and given the very narrow criteria for a new one, it’s no wonder that the government is having a hard time filling the post, and we may be stuck with Dawson forever as a result.

 

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Roundup: Share sales and the sputtering outrage cycle

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As the full-blown moral panic into what financial assets cabinet ministers own continues, we see the news that Bill Morneau has indeed sold off his shares in Morneau Shepell, for what it’s worth. Not that it will stop any of the chatter at this point – the outrage cycle continues to exhaust itself, and until some new outrage crops up, we’ll continue hearing about this as it sputters and runs on fumes.

And hey, why not find out what every other cabinet minister owns? The Star did, and I’m not really sure how edifying this whole exercise was in the end. Never mind that once again we’re reaching the point of absurdity with all of this. Are there problems with the ethics and conflict of interest legislation? Probably. Were loopholes identified previously? Yup. Did MPs do anything about it then? Nope. Do they really have an interest in closing any of them now? Probably not (and no, the NDP motion that the government voted down was not indicative of anything because it also contained a bunch of other stuff, as these things so often do, that was designed to embarrass Morneau and the government had they voted for it. Because in politics, we can’t have nice things). And once you add in all of the tall poppy nonsense, we’re left with the same tiresome moralizing that we’re always left with when it comes to “perceived” conflicts that aren’t actually there but which were invented out of whole cloth with the convenient lining up of “facts” that don’t pass the bullshit filter. And then we complain that nobody wants to get involved in politics.

https://twitter.com/cfhorgan/status/925393091086786560

Meanwhile, the Liberals are pointing out that Andrew Scheer has assets in Real Estate Limited Partnerships that are really only for the wealthy. Predictably, the Conservatives cite that he’s worth only a fraction of Morneau, and then cries of hypocrisy flew from both sides, and the outrage cycle continues to chug along.

https://twitter.com/cfhorgan/status/925377206351564800

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