Tag Archives: Supreme Court

Roundup: Don’t take conventions to court

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A group of East Coast lawyers has decided to launch a court challenge about the possibility that the government might appoint a new Supreme Court justice that is not from Atlantic Canada, and my head is already hitting the desk because while you can conceivably argue that the regional composition of the court may very well be a constitutional convention, by that very same argument, a constitutional convention is non-justiciable, so you can’t actually take it to court.

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So, to recap, until an appointment is actually made, the whole quixotic venture is premature. Constitutional conventions are politically enforceable but not legally, in part because we don’t actually want people to constantly take the government to court when they lose at politics (which already happens too much – and it’s almost as bad as writing to the Queen when you lose at politics). There was a court case not too long ago when Democracy Watch took the government to court because Stephen Harper went to the Governor General to call an early election despite the (useless) fixed-election date legislation having been enacted, and the courts dismissed it because prerogative powers are constitutional conventions (and while unwritten, are nevertheless still part of our constitutional framework).

And don’t get me wrong – I do think there is a very good case that the regional composition is a constitutional convention because it reflects the federalist principle that is necessary to give its decisions the political legitimacy necessary to be the arbiter of jurisdictional disputes in this country, and that is a pretty big consideration. But the courts are probably not the best place to solve this issue. Having the Atlantic premiers write the Justice Minister to warn her about breaching the convention is probably a better course of action, as would having backbench Liberal MPs from the region expressing their displeasure (though, for all we know, they may already be doing so behind closed doors in the caucus room). And a public campaign that lays out this argument (as opposed to just one centred around it being unfair or about maligning the political correctness of trying to find a new justice that better reflects certain diversity characteristics) wouldn’t hurt either. But this group of lawyers should know better than to try and make a non-justiciable issue justiciable.

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QP: Back in the saddle

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Everyone’s back, and raring to go, and how I’ve missed them all! Well, okay, not everyone’s back — the PM and several of his ministers are off at the UN General Assembly (where Canada’s Back™), but these things happen.

Rona Ambrose led off, mini-lectern on desk, decrying tax increases along with a potential carbon tax and CPP increases. Bill Morneau stood up to lament the challenges facing Canadians, and noted the reduction in middle-class taxes and the Canadian Child Benefit. Ambrose gave the doom statistics, and Morneau reminded her that investments and not austerity were geared toward future growth. Ambrose changed tactics and sounded the alarm about a peacekeeping mission in sun-Saharan Africa. Harjit Sajjan reminded her that it was dangerous, and that was why he was doing the necessary homework beforehand. Ambrose worried that troops were being used as pawns on a political chessboard in a bid for a UN seat. Sajjan reminded her that it was not just about troops, but a whole-of-government approach to peace operations and stability. Ambrose switched to French to demand a debate and vote on a deployment. Sajjan said they welcomed a healthy debate, but did not commit to a vote (as is proper). Thomas Mulcair was up next, decrying the “cuts” (read: changed escalator) to health transfers. Jane Philpott said she was talking with the provinces, but didn’t commit to restoring the old escalator. Mulcair asked again in English, got the same answer, and then Mulcair demanded that the government vote in favour of nuclear disarmament at the UN this week. Sajjan said that the best way was a pragmatic step-by-step approach. Mulcair demanded GHG reduction targets, and Catherine McKenna said that they were being transparent in their approach.

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Roundup: Precious conformity

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Conservative MP Garnett Genuis penned an analysis piece for Policy Options that tried to explain why MPs vote in lockstep, and it’s just so precious you can barely stand it. Genuis dismisses the talk of heavy-handed PMO and whips offices, and after some lengthy discussion, concludes that it’s the human nature of conformity that’s at play. His mode of analysis was the voting record on C-14, the highly contentious medical assistance in dying bill.

It’s not that Genuis doesn’t have some good – if somewhat infuriating points – in the piece, talking about how MPs are so busy with their constituency work that they just don’t have the time to sit down and study the legislation that they were elected to be considering. That one nearly made me blow a gasket, considering that constituency work isn’t actually part of an MP’s job description and its growing importance has come at the expense of their actual jobs of holding government to account. That Genuis uses it as an excuse for having MPs let the “experts” in their leaders’ offices tell them how to vote is utterly galling. I can see why they would use this excuse, but that doesn’t mean that it’s a good one or one that we should let them get away with (but then again, almost nobody knows what an MP’s actual job description is, least of all the MPs themselves, and yes, that is a Very Big Problem. His better points, however, included that sometimes it’s good for local nominations to see that an MP will be willing to break ranks from time to time, but it’s a mixed bag when they also need to be seen to have a united front with the party. It is a tension that he doesn’t delve deeply enough into.

But so much of his thinking is flawed, in part because he relies on the data of votes on a single contentious bill rather than a broader sample, which would produce a more thoughtful discussion, and also because he ignores the other incentives for why MPs will vote in lock-step. For some parties, like the NDP, the need for solidarity in all things means a much more conformist voting pattern in all things, and there is an internal culture of bullying to keep MPs in line so as not to be unseemly with dissent. With government backbenchers, there is the hope that toeing the line enough will earn you a post in cabinet or as a parliamentary secretary, because the ratio of cabinet-to-backbench seats is still too low in Canada to encourage a culture of more independent backbenchers in safer seats willing to do their job of holding government to account. There is also the pressure – which We The Media shamefully perpetuate – that you don’t want to be seen as breaking ranks lest it reflect poorly on the leader (though this seems to be a bit less so under Trudeau who has been vocal about encouraging more free votes). There is no discussion about the blackmail of a leader that can withhold their signature from an MP’s nomination papers during the next election (or whatever the mechanism is post-Reform Act, because there is no actual clarity in law there any longer). So yes, while there is a human tendency to conformity, it is informed by a whole lot of other factors that Genuis ignores, and that taints his analysis to a pretty fatal degree.

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Roundup: No, the LG can’t threaten the premier

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Sometimes you see a terrible column, and sometimes there’s such a piece of hot garbage that you need to don a hazmat suit just to approach it and get hosed off afterward like you just came out of a leaking nuclear reactor. The Toronto Sun’s Christina Blizzard delivered one of those yesterday.

That’s right – this columnist thinks that the lieutenant governor should threaten Kathleen Wynne to shape up or she’ll dismiss her, because 167 years of Responsible Government was just a failed experiment. One lesbian first minister in this province and we’ve decided that it was too much – time to hand power back to the queen and be done with it.

You see! Voters can’t be trusted! Obviously we’d be better off under absolute monarchy again because they won’t let such terrible governments to let themselves get elected and then implement the agendas that they were elected on. It’s like the fanboys in the First Order who remember the good old days of the Galactic Empire and preferred it to the messy democracy of the New Republic.

It’s called confidence. Whichever leader in the legislature or Parliament that can command the confidence of the chamber gets to advise the LG/GG/queen on how to exercise the powers of state. Not a difficult concept.

It is utterly galling that a columnist can be so utterly ignorant of basic civics that this is the kind of utter bilge that they spew onto newsprint. We do have a problem with basic civic literacy in this country, and when you have columnists like this spreading complete nonsense out of some sense of partisanship, it gives a warped impression to people who read this and makes them believe that it’s actually normal and expected that the GG or the LG can boss around a government that you don’t like. No. Absolutely not.

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So let me reiterate that Blizzard’s column is utter hot garbage. If the Sun had any shame, they’d pull it and apologise profusely for putting it out there, and Blizzard would be sent to a remedial civics course, but I doubt that’s going to happen because she’s just passionate about how bad Wynne is, or some bullshit excuse like that. So in the meantime, I’ll just leave this here:

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Roundup: Quality over quantity

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Every time I see a piece that presents the shockingly low numbers of women in politics in our country, I tense up a little. Not because the numbers are terrible – because let’s face it, they are – but because almost always, these tend to be quantitative lists trying to talk about a qualitative problem. Lo and behold, we have yet another of these in the Ottawa Citizen this morning, but there are a few figures in there that need to be unpacked a little more.

The one that really bothers me and deserves to be contextualized is the one percent change between number of women in this parliament and the previous one, and this is where the quantitative/qualitative aspect really comes into play. First of all, the House of Commons is larger in the current parliament by 30 MPs. This means that a one percent gain in a larger Commons means more women on an absolute numbers basis, and that matters. The other, more important fact, however, is the quality of the female MPs we elected this time around. In 2011, let’s face it – much of the increase came from the number of NDP MPs who were accidentally elected following the “Orange Wave” – candidates who hadn’t been properly nominated, had never been to their ridings, never campaigned in them, and were just names on a list that the party put there in order to ensure that they could max out their spending limits. When a wave of sentimentality overcame the Quebec electorate, they got elected. Much was made of the number of young women that were elected, but qualitatively, most of them were underwhelming MPs, whose only real skillset was in reading the scripts that were put in front of them and throwing tantrums in the media when they needed some attention. Most of them, fortunately, didn’t get elected again. That said, for the 2015 election, the Liberals put into place a system to seek out and encourage more women to seek the nomination and to support them in winning it. Qualitatively, you got better MPs who were not just names on lists, who proved they could fight and win both a nomination race and an election by doing the work of door-knocking and being engaged, and more of them wound up in the Commons. It’s a qualitative improvement that can grow further in the next election.

This is why suggestions about changing our electoral system to incorporate lists in order to get more women and minorities into the Commons frustrates me, because there is an implicit message that women and visible minority candidates can’t fight and win elections on an equal basis. I think that’s wrong, and targets the wrong problem because it ignores the complexities and realities of our nomination system and ways that it needs to be improved – such as how the Liberals started doing – and how that changes the game on the ground. The problems in our system when it comes to getting women elected are cultural, not mechanical. Simply changing the electoral system to artificially inflate the numbers of women won’t solve the underlying problems, but merely mask them. We should remember that every time these quantitative lists are released.

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Roundup: Revisionist history mythologizing

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The electoral reform committee was back yesterday and the “star” witness was former NDP leader Ed Broadbent, currently heading the institute that bears his name. If you’ve been out of the loop, Broadbent is an unabashed supporter of Proportional Representation, and figures that Mixed-Member Proportional is the cat’s pyjamas, and proceeded to regale the committee with any number of ludicrous statements about both the current system and the purported wonders of MMP, and then delivered this particular gem: that MMP would have spared the west the National Energy Programme in the 1980s.

I. Can’t. Even.

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The amount of mythologizing around the NEP in this country borders on psychosis. There was a time not so long ago that people also caterwauled that a Triple-E senate would also have prevented the NEP, with no actual proof that would be the case if you actually stopped to think about what would be involved in creating such an institution (particularly the imposition of party discipline because if you think you would be electing 105 independent senators, you’re even more delusional than the premise of the question belies). Most of these mythologies around the NEP forget that there was a history involved with global energy crises, broad support in the rest of the country, and that it was a global recession that happened around the same time that was largely responsible for the economic collapse that ensued as opposed to the NEP itself, but the two became conflated in the minds of most people. It didn’t happen in a vacuum or because Pierre Elliot Trudeau simply rubbed his hands and tried to come up with a diabolical plan to screw the West. For Broadbent to suddenly claim that a PR system would have ensured more regional voices at the table and common sense would have prevailed is simply revisionist history combined with the kind of unicorn logic that his preferred voting system would have been responsible only for the good things in history and never the bad. It’s egregious bullshit and needs to be called out as such.

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Roundup: The AG’s disastrous advice

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The Senate’s internal economy committee is signalling that they are looking into setting up an independent audit committee, and my alarm bells are going off so hard right now because if they follow the path that the Auditor General wants them to go down, then they are risking serious damage to our entire parliamentary system. And no, I’m not even exaggerating a little bit. You see, Michael Ferguson wants to ensure that if there are any senators on this independent committee, that they are in the minority and not in a position to chair it, because that would mean they’re still writing their own rules. And the answer to that is of course they’re writing their own rules. They’re Parliament. Parliament is self-governing. In fact, it’s not only ignorant but dangerous to insist that we subject our parliamentarians to some kind of external authority because that blows parliamentary privilege out of the water. If you don’t think that Parliament should be self-governing, then let’s just hand power back to the Queen and say “thank you very much, your Majesty, but after 168 years, we’ve decided that Responsible Government just isn’t for us.” So no, let’s not do that, thanks. And it’s not to say that there shouldn’t be an audit committee, and Senator Elaine McCoy has suggested one patterned on the one used in the House of Lords, which would be five members – three senators, plus an auditor and someone like a retired judge to adjudicate disputes, but the Senate still maintains control because Parliament is self-governing. It allows outsiders into the process to ensure that there is greater independence and which the senators on the committee would ignore at their peril, but the Senate must still control the process. Anything less is an affront to our democracy and to Responsible Government, and I cannot stress this point enough. Ferguson is completely wrong on this one, and senators and the media need to wake up to this fact before we really do something to damage our parliamentary institutions irreparably (worse than we’re already doing).

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Roundup: Begrudging a day off

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There was a good piece in Policy Options yesterday from Jennifer Ditchburn which talked about the problem of “vacation shaming” politicians, in light of Justin Trudeau making his first public statements about the Aaron Driver case almost a week after it happened, as part of Trudeau’s Atlantic Canada tour. There is a problem with expecting the PM to be on call for cameras at a moment’s notice, as the Conservatives certainly seem to be demanding, decrying his absence when bad economic numbers came down a few weeks ago, or when the Driver incident happened. But relevant, competent ministers stood up when those things happened, and it’s not like the Prime Minister could have said or done anything that would have added to the situation other than to be the face of it, when he’s made it clear that his is a government by cabinet, and that means that the responsible ministers get to be the ones that get in front of the cameras when things in their bailiwick happen, and guess what – they did.

Ditchburn also makes the very apt points that for everyone who says that they want better work-life balance, especially for MPs, demanding that they be every present fro the media goes counter to that desire, particularly when we badmouth them for being open about taking a day or a week off. The wailing and gnashing of teeth over the day off he took during the visit to Japan was outsized and ridiculous, and we’re seeing much the same thing here, compounded with the beating of breasts over the international coverage that people catching a glimpse of said PM with his shirt off. It’s excessive and it’s only fouling the well. Politics is close to being a 24/7 job as it is, and that can be a problem for all sorts of reasons (high divorce rate among politicians being a chief one), and it becomes just one more outlet for cheap outrage when we demand that our politicians now must forgo vacations, as well as forgo the bulk of their salary, pensions and benefits, and expenditures, as so many clueless wannabe pundits will declare over social media. Let’s grow up about our expectations and not begrudge them a vacation or a day off. We’re better than that.

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Roundup: Petty, unhelpful suggestions

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The fact that Mike Duffy’s expenses have reignited an old and frankly tiring debate on whether Senators should be able to claim for their legitimate work expenses, or whether it’s this particular shameless senator whose expenses, however legitimate, are forever tainted. We can look and see competing editorials from the likes of Robyn Urback, who is justifiably dubious about the whole thing given the history and cloud that remains around Duffy’s primary residence, and Kady O’Malley, who notes that Duffy’s current expense claims are entirely legit so we should stop begrudging them (while not forgiving past transgressions either). But of all the commentary that I’ve seen in the past week, the least helpful comes from within the Senate itself.

When asked about the whole Duffy ordeal, the Conservative Senate leader, Claude Carignan mused about how the Senate’s rules may still need to be updated, which I’m not quite sure how much more stringent they need to be at this point considering how much they’ve come in the past two years (and for years before that), and it sounds a lot like he’s trying to play along with the attempts at cheap public outrage over the whole thing, while simultaneously ignoring the fact that Duffy’s residency issue remains a problem from the manner in which Stephen Harper appointed him, and a Harper loyalist, Carignan is almost certainly loathe to criticise that decision. But it got worse. Carignan then basically dumped the problem into the lap of Senator Peter Harder, the “government representative” as though he were somehow able to do something about it. As Carignan, a former Government Leader himself should know, it’s not up to the Government Leader to shepherd rules changes considering that Senate Rules are the domain of the appropriately named Senate Rules committee, and that expenses are the domain of the Internal Economy Committee, and last I checked, Harder is not a member of either committee, nor does he have a caucus that has senators who sit on those committees. In other words, he has no senators that he can use to exert any kind of influence over in order to make those changes. With these facts in mind, I’m not sure why Carignan would suggest that rules changes need to be spearheaded by Harder except that it’s more petty politicking, trying to undermine his (already shaky) legitimacy, while looking to absolve himself of any responsibility event though Carignan controls the largest caucus in the Chamber. If we need to have a discussion about how the residency rules need to continue to evolve, then great, let’s do that. But to try and play this particular game about it is really beneath Carignan’s position and he should know better.

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Roundup: Peace bonds and terror suspects

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Everyone seems to want to talk about how the Aaron Driver terrorism incident went down and how it relates to the government’s plans to amend the old C-51 into something that better balances Charter rights, so here is some preliminary analysis from the expert, Craig Forcese, and more analysis that he did with Kent Roach for the Globe and the Post. And yes, the Liberals have reiterated that they plan to amend the legislation, while the NDP continue to demand its repeal (which may be difficult given how it interacts with pre-existing legislation). Meanwhile, here’s an interview with Driver’s father and a professor who studies radicalization – who noted that the isolation of the peace bond may have made that radicalization worse – and a reminder about the realities of terrorism like this in Canada versus Europe.

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