Tag Archives: Supreme Court

Roundup: A hopeless court case

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It’s one of the most predictable performative dances in Canadian politics, which is that when you lose at politics, you try to drag it to the courts to fight your battles for you. In this, case, a UBC professor (and local Fair Vote Canada) president wants to launch a Charter challenge around electoral reform. And in order to do that, he’s talking about getting pledges of around $360,000 in order to get through the legal process.

The problem? This is an issue that has already been litigated and lost. The Supreme Court of Canada refused to hear the appeal of the case that arose out of Quebec, which means it’s considered settled. The current electoral system is legal, it is constitutional, and while you get the odd prof here and there who tries to make an argument to the contrary, it’s settled law. And unlike some of the reversals we’ve seen the courts make over prostitution or assisted dying, there has been no great groundswell change in society that would justify the court in re-litigating the matter. In other words, he’s trying to raise money from people who are desperate to find a lifeline now that their political solution is gone that this is basically a scheme for lawyers to take their money.

This tendency to try and use the courts to overturn political decisions is a growing one, but it’s the same mentality as people who write to the Queen when they lose at politics. Have we had cases where governments have passed bad legislation and the courts have overturned it? Certainly. But political decisions are not bad legislation, and it’s not up to the courts to force governments to adopt what some people consider to be more favourable outcomes. It’s called democracy, and we have elections to hold governments to account for their political decisions. It’s also why I’m extremely leery of people calling for a cabinet manual, because it means that more groups will start trying to litigate prerogative decisions, and that’s not a good thing. It’s time these PR proponents let it go and try to fight it again at the next election. Oh, but then it might become clear that this really isn’t an issue that people care all that much about. Shame, that.

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Roundup: Brace for blanket coverage

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Today is the big day, and it’ll be wall-to-wall coverage of Justin Trudeau’s big meeting with Donald Trump, and we won’t be able to talk about anything else I’m sure. So here we go. At Trudeau’s meeting with Donald Trump he will apparently be seeking assurances on pre-clearance issues, while they will also be having a working lunch where the topic will be women executives. No, really. And the tone now is apparently going to be business instead of “love-in” (though I’m not sure anybody has had a love-in with Trump).

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The Conservatives are “pausing their hostility” with Trudeau in advance of the meeting, apparently showing solidarity in advance of it (though you wouldn’t have known it from QP last week). Here we have some advice from a former Canadian ambassador to Washington, while Anne Kingston wonders which version of Trudeau will be at the meeting. Marc Garneau, who chairs the Canada-US cabinet committee, says that today’s visit won’t focus on our countries’ differences. And Tristin Hopper offers some slightly tongue-in-cheek advice for the meeting.

And then there’s the historical context. Here’s a look at how previous PMs have dealt with unpopular presidents, and the lessons taken from Trump’s meetings with Theresa May and Shinzo Abe. Maclean’s has a photo reminder of meetings going back to the seventies.

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Roundup: The business of selling seats

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Kevin O’Leary went on television on the weekend, because of course he did, and then said a bunch of nonsense. Because of course he did. This time, it was to whine about how it’s not fair that rich people can’t fund their own campaigns, and to say that he thinks that the Senate should be a profit centre rather than a cost, and charging people $100K to $200K per year for the privilege of sitting there. No, seriously. He has said he thinks it’s fine to sell seats in a house of Parliament, and nobody challenged him on that point of the fact that it’s grossly unconstitutional. (Only a later update of the story added quotes from Emmett Macfarlane that appeared to be what he tweeted on the subject).

Not only that, but you immediately had a bunch of chuckleheads showing up on the Twitter Machine going “a plain reading of the constitution would say this is allowed” without any hint that they are being ironic. Before Leonid Sirota beat me to the punch, I was going to remind everyone that the idea of selling Senate seats came up during the Supreme Court of Canada hearing on the Senate reference, where Justice Cromwell cornered the government’s lawyers on the question of “consultative elections” and how they wouldn’t require a change in the constitution. “If consultative elections are allowed, then why not a consultative auction?” asked Justice Cromwell, and well, the government lawyer had to basically swallow that one. (To remind you, they ruled that consultative elections are not allowed without a change to the constitution).

I would also add that for as much as we’ve (rightfully) lambasted O’Leary on this ludicrous idea, the NDP and others have been floating around a similar idea in the past about defunding the Senate and making it a volunteer position – you know, so that just like O’Leary’s plan, it becomes available to only the super-rich who have the time and resources to devote to doing the work. Because that’s exactly the kinds of people we want to fill those seats. Not to mention, if O’Leary thinks that Senate seats should be up for sale, why not any other federally appointed position – judges, heads of tribunals, Commissioner of the RCMP? All profit generators instead of a drain on the taxpayer, right? Yeah, no.

On a related note, O’Leary said that if he does win the leadership, he wouldn’t be in any rush to run in a by-election but would spend time crossing the country to gather support. Because this is what happens when you don’t insist that the leadership be from caucus. It elevates the position above what it should be, and diminishes the role of caucus and the value of a seat in parliament. Leadership races should be by caucus selection, not membership vote. We’ve bastardized our system enough, and we need to reign it in.

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Roundup: Housakos vs Harder

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It took a couple of weeks, but I will say that I was encouraged to read that Senator Leo Housakos was in the press pushing back against Senator Peter Harder’s comments that the Senate hasn’t been implementing changes to its processes as recommended by the Auditor General. As chair of the Internal Economy committee, Housakos has corrected the record to point out that yes, a lot of changes have happened (and in fact were happening since long before the now infamous audit happened), and also hit back at the issue of an audit committee. Harder it seems has bought into the AG’s wrong-headed notion that an external audit body be formed, which I will reiterate is absolutely an affront to parliamentary democracy. The Senate is a parliamentary body, and parliament is self-governing. It needs to be, full stop. Making senators answerable to an outside body puts a stake in the ability to be self-governing, and pretty much says that we don’t deserve to be a self-governing country anymore, and should just hand all of the power back to the Queen. That Harder can’t see that is blind and a little bit gobsmacking. While the Senate does plan to announce an audit body soon, it will be of mixed composition, and if they’ve paid attention to Senator McCoy’s proposal to mirror the House of Lords’ body – basically three senators and two outside experts – then we’ll be fine. But make no mistake – such a body must be majority senators and be chaired by a Senator. Otherwise let’s just start the process of shuttering parliament, and no, I’m not even being dramatic about it.

While we’re on the topic of the Senate, I just wanted to give a tip of my hat to now-retired Senator Nancy Ruth (who was on Power & Politics yesterday at 1:49:00 on this link). Nancy Ruth (that’s one name, like Cher or Madonna) was one of my early entry points into political journalism, when I came to the Hill writing for GLBT publications like the now-defunct Outlooks and Capital Xtra. As the only openly lesbian parliamentarian, and the only openly LGBT member of the Conservative caucus who wasn’t media shy, she was my point of contact into that caucus and that particular political sphere. The relationship I built there gave me my first by-line for The Canadian Press, and I eventually moved into more mainstream outlets. She was an absolute joy to cover, and I will miss her terribly.

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Roundup: Cullen’s silver-tongued swindle

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It should not surprise me, but Nathan Cullen’s capacity for deceptive stunts continues to both amaze and gall me at the same time. Previously it was conning Maryam Monsef into his “proportional” electoral reform committee composition (which was not proportional, but a racket that was designed to merely look more “fair” but was in fact a calculated gambit to give the opposition a disproportionate say in the process), for which we got a report that was a steaming pile of hot garbage. With Karina Gould now in the portfolio again, Cullen now proposes that they “co-draft” an electoral reform bill.

No, seriously.

I cannot stress how bad of an idea this is for both of their sakes. For Gould, this is Cullen trying to swindle her like he did Monsef. He played her – and the public – in trying to push proportional representation and ended up recommending (along with Elizabeth May’s whole-hearted endorsement) one of the absolute worst possible electoral systems possible. And now he’s trying to ensure that she puts it into legislation for his party’s benefit. This has nothing to do with bills being drafted secretly “backrooms” (otherwise known as the Department of Justice under the cone of Cabinet confidence) or with the spirit of bipartisanship. This is about Cullen trying to manipulate the process.

If that weren’t bad enough, what is especially galling is that he’s undermining his own role as an opposition critic in the process. He is not a minister of the Crown. His role, therefore, is not to govern, but to hold those to account who do (–William Ewart Gladstone). This is an important job because parliament depends upon accountability. That’s the whole purpose behind having a parliament – to hold government to account. And it would be great if our opposition critics would actually take that job seriously rather than pretend they were ministers with their faux-bipartisanship and private members’ bills that cross the line when it comes to acceptable bounds of setting policy. It would be great if MPs actually did their jobs. Perhaps most troublesome in all of this is that Cullen is his party’s democratic reform critic. If he can’t grasp this most basic fundamental point of Responsible Government, then can we actually trust him on attempting to find a different voting system? I’m pretty sure the answer to that is no.

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Roundup: No health deal with the provinces

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So that was that. The federal government came to the table yesterday with some more money for health transfers plus another $11.5 billion over ten years for targeted priorities, and the provinces balked, so there’s no deal and the federal government is sticking to the existing 3 percent or GDP growth (whichever is higher) escalator. But really, the whole thing was a bit of a charade to begin with.

Andrew Coyne pretty much savaged the whole affair over the Twitter Machine all day, and he’s certainly not wrong about any of it.

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So both Bill Morneau and Jane Philpott say that they’re willing to work on ways to help the provinces, but Morneau went into it basically saying they’re in the middle of writing the budget, so now is the time. They said no, so that may be it. Well, except that New Brunswick is saying they’re open to a bilateral deal, because with their stagnant population growth, the current escalator is a lot of money for them. Will this shame other provinces into signing on, or at least enough that the rest will start looking foolish for rejecting it out of their ritualized Busting of the Gaskets? I guess the next couple of weeks will tell. Incidentally, Justin Trudeau seems to be having difficulty in remembering just what was promised on funding during the election, for what it’s worth.

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Roundup: Giving the PMO too much credit

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Over the past day-and-a-half, everyone and their dog has had an opinion about just what Maryam Monsef was thinking when she stood up in Question Period and said that the electoral reform committee hadn’t done their job in bringing forward a recommendation and then tried to use the Gallagher Index equation as a way of ridiculing their work. And when she stood up in QP to apologise yesterday no less than five times, the opinions got more and more “sure” that everyone knew just what was going on.

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And while I am always happy for a Thick of It reference where I can get it, I’ve seen a lot of tweets over the day that have basically posited that Monsef is this vacuous cipher for the PMO, and that she’s just reading the lines assigned to her, and it bothers me. Why? Because Monsef isn’t vacuous. Quite the opposite in fact, and while she may stick to her lines in QP and have all the sweetness of saccharine, she’s very deliberate in the way she responds (as she articulated to John Geddes here). So yes, she prepared for Thursday’s QP and had some lines prepared, including the one about the Gallagher Index, but she also knew that she was going to be bombarded with a bunch of ridiculous questions from the opposition parties who overread the conclusions of the report. Did she go too far? Yes, absolutely, and I think she recognised that. But she’s also been handed a really shit file to manage, and she’s got a tonne of work to do in stick-handling it.

Essentially, the Liberals made a foolish promise that they probably knew they couldn’t keep, but they also managed the expectations around it somewhat with promises for consultation that gives them an out. It was also just one item in a comprehensive reform package, most of the rest of which is well on the way of being implemented, but they went and oversold this one item and now they need to figure out how to break it without looking like they’re breaking it for self-interested reasons. And no, I don’t think they want to break it just because the current system worked out for them – rather, they realised that the alternatives are not actually better for our system in general. Part of how they can hope to break it is to show that the other parties are unreasonable and no consensus can be reached, and to a great extent, the electoral reform committee report demonstrated that, but Monsef went and overshot and her own party members got hit with friendly fire as a result. And now they need to keep up the charade a while longer, but this is something that they need to smother, but they can’t look like that’s their plan, and Monsef has a hell of a job trying to manage that.

Oh, and for everyone who asserts that this is just the PMO pulling the strings instead of the minister, I’m less convinced. I’ve had conversations with people who’ve worked in Queen’s Park who now work here, and their assessment is that this actually is government by cabinet – the centre is not stickhandling everything, and I’m not convinced that Monsef, as junior as she may be, is just a puppet like so many Harper ministers were. The evidence just isn’t there for me.

Meanwhile, Colby Cosh offers some more context for that whole Gallagher Index nonsense, while Paul Wells manages to better interpret Monsef’s reaction and the real reason why the committee failed, which has to do with the referendum question. Andrew Coyne mystifyingly tries to equate the issue with free trade, while again insisting that Monsef is just a cipher for the PM.

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Roundup: Gallagher and the electoral reform garbage fire

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Yesterday’s release of the electoral reform committee report was a giant headache for all sorts of reasons – the way in which the majority report was cute in their recommendations, the Gallagher Index nonsense, Monsef’s being cute in reply to the ways in which both the Conservatives and NDP were over-reading their own report, and the repeated demands that the Prime Minister respect his ill-considered promise that 2015 would be the last election under First-Past-the-Post. It was an utterly exasperating day.

While are all aware that I am team status quo because the system is not broken and any problems are not the result of the electoral system, I will offer a few observations. Number one is that the Gallagher Index is one of those devices favoured by poli sci undergrads, electoral reform nerds, and sore losers to “prove” that their preferred system is “mathematically” better than others, but it’s predicated on a couple of false notions – that in evaluating the current system that it’s a single event when it’s actually 338 separate events; and that the translation of votes to seats in this as-close-to-perfect proportion is actually desirable when it is in fact distorting the meaning of the vote itself. When we vote under our system, we are making a simple decision on who fills an individual seat, and because there are more than two candidates (and we don’t use run-off elections), it tends to rely on a plurality result rather than a simple majority. When you start demanding proportionality, you distort the meaning of that simple decision, and yes, that is actually a problem. That the report wanted a system with an Index of 5 or less, that’s not actually a simple choice of one or two systems. (If you want an explanation of the math, read this thread). Simulations of the Index under the Canadian system can itself be distortionary because of the regional nature of our elections, which why some use a “composite” Index that can produce different results from a strictly national Index figure when you try to correct for those.

The NDP/Green “supplemental report,” aside from being nigh-unreadable for all of its collection of demonstrably false talking points, recommends either an MMP system or this “Rural-Urban Proportional,” but in order to get their Index scores below 5, it means a large number of new seats particularly for MMP, while the RUP concept in and of itself is unlikely to be considered constitutional – using two separate electoral systems depending on your geography is unlikely to pass the Supreme Court of Canada smell test, but this is a decision they wanted to put on the government without that particular context. It’s all well and good to wave your hands and say you want a more proportional system, but designing one that works for Canada’s particular geography and constitutional framework is not as easy as it sounds, nor does it actually respect what you’re actually voting for. And so long as the loudest voices on this file are mired in sore loserism who figure that it’s the system that’s keeping them down and not the fact that they simply don’t have policies and candidates that can appeal more broadly, we’re going to continue to be mired in debates based on a load of utter nonsense. But hey, the government needs to make it look like they’re going to keep trying to tackle this file for another few months before they give up rather than just smothering this Rosemary’s Baby in its crib right now like they should, and just take their lumps for a foolhardy promise.

And if you won’t take my word for any of this, here’s Kady O’Malley evaluating the report, what happened today, and the trap that the NDP and Greens may be setting for themselves. Meanwhile, The Canadian Press’ Baloney Meter™ asserts that Trudeau’s election promise was “full of baloney,” while it can credibly be pointed to the fact that they acknowledged the need for consultations which gave wiggle room.

https://twitter.com/emmmacfarlane/status/804333379751739392

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Roundup: Pushing back against Leitch

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In the wake of Wednesday’s Conservative leadership “debate” – and I use the term loosely because there was no actual debate, just presentations sans Power Point – the wedge that Kellie Leitch has been nursing in her campaign became all the more stark. While Michael Chong may have been first out of the gate with his condemnation, Deepak Obhrai has used it to crank his campaign up a notch yesterday, with both an appeal for support in order to oppose Leitch specifically, and also told tales about messages he’s received from Leitch supporters telling him to leave the country.

At one point during the presentations on Wednesday, Leitch held up a book Points of Entry from sociologist Victor Satzewich to justify her screening proposals. The problem? That Satzewich’s conclusions in the book were the opposite of hers, that the system was working, that demanding more face-to-face interviews for all visa applications would make the system grind to a halt, and that while he went into the research sceptical, his research convinced him that things were better than he had initially surmised. So that’s kind of embarrassing for Leitch (or would be if she had any demonstrated capacity for shame, which I’m not convinced is the case).

Meanwhile Leitch, whose other Trumpian note has been to rail against “elites” – as though she were not the epitome of one – has been holding fundraisers in Toronto with Bay Street lawyers for $500 a pop. You know, more of those elites which she’s totally not one of. Also, if she’s so convinced that she’s going to be Prime Minister by 2019, isn’t this some kind of ethical conflict for her to be holding these kinds of cash-for-access fundraisers?

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Roundup: Seriously, stop calling it cash-for-access

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Apparently we’re still on this bizarre witch hunt against Liberal Party fundraisers, because I’m guessing we have little else to obsess over right now. Best of all, we’re now inventing conspiracy theories, like how the head of drug company Apotex is apparently fundraising because his company is both lobbying the government (as a drug company does) and because they’re involved in a lawsuit, and no said company head isn’t the company’s lobbyist, but yet these connections are being drawn by both media and echoed by the opposition, and I shake my head wondering people in their right mind think this is some kind of a scandal or breach of ethics. You really think the federal government is going to throw a lawsuit because they got a $1500 donation? Really? Honestly?

That media – and in particular the Globe and Mail continues to characterise this as “cash for access” is bizarre. Sure, your “average family” isn’t going to pay $3000 to meet a minister, but why would they? I mean, seriously? What would be the point? And it’s not like they don’t do other events either, and we’ve previously established that this is a government that loves its consultations, so it’s not like you couldn’t have your say. It’s inventing a problem that doesn’t actually exist. Do you think ministers shouldn’t attend fundraisers at all? Do you think that they can be bought for $1500? How about $500? $100? And they’re not hiding these fundraisers either. VICE asked for the list, and lo and behold, it was provided. But here’s the most bizarre part of all – mere months ago, the Globe declared that the federal system was the best in the country and urged provinces to all adopt it (while in the midst of their zeal against the much more dubious practices that were taking place in Ontario where ministers were soliciting donations from the stakeholders lobbying them, which is not what is happening at the federal level).

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Meanwhile, the president of the Liberal Party wrote a response to the Globe, but they wouldn’t publish it, so it’s on their website. Howard Anglin expands on his criticism of the reporting on fundraisers, and defends our system as being clean on the whole, and seriously, this is getting tiresome.

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