Tag Archives: Supreme Court

Roundup: The wrong way to rein in the Senate

Posted on by

Sometimes you read clueless columns, and sometimes the columns are so utterly clueless that you have to wonder how they ever got past an editor in the first place. The Globe and Mail featured one such yesterday morning from Campbell Clark, who asserted that it’s now Justin Trudeau’s fault that Mike Duffy is claiming expenses because cabinet ultimately has control over expenditures.

I. Can’t. Even.

The complete and rank civic illiteracy coming from a columnist in a national newspaper is galling, and looks a hell of a lot like he’s just making stuff up as he goes along. And no, I’m not chalking this up to a mid-August phoned-in column, because this isn’t the first time that he’s made this suggestion before, and it needs to stop. And it’s such an elementary part of civic literacy that Clark is apparently unable to grasp, which is that it’s the job of the legislature to hold the executive in check and not the other way around. In fact, it’s the job of the House of Commons to grant supply to the government for its operation and not the other way around. The Senate most especially exists to serve as a check on an executive that has a majority in the House of Commons. Neither the House of Commons nor the Senate are a government department – they don’t report to the Cabinet, nor does Cabinet control their expenditures because fundamentally they have institutional independence. Can you just imagine what would happen if Cabinet did control their purse strings? It would be nothing but a constant string of threats to cut of MPs’ or senators’ salaries or office budgets if they didn’t fall into line. That’s not how the system works, and Clark’s suggestion makes as much sense as giving cabinet the authority to go after judges’ salaries if they strike down that government’s laws. Add to that, Clark’s suggestion that the government should start clamping down on how much Senators can spend is so ludicrously boneheaded that it boggles the mind. You see, if MPs go after senators’ expenses, then senators will turn around and go after MPs’ expenses, and veto any budget until their independence is no longer being threatened. And why? For cheap optics? The Senate has a job to do, and democracy costs money. If Clark thinks that things work differently under our constitutional arrangement, then he is sadly mistaken, and he needs a remedial course in basic civics post haste because what he’s written is wholly and completely irresponsible. So no, it’s not Justin Trudeau’s government’s problem that Mike Duffy is claiming housing allowances, it’s Duffy’s problem (as we established yesterday). For anyone to claim otherwise doesn’t know or understand how our system operates.

Continue reading →

Roundup: Send in the narcissistic clowns

Posted on by

It happened on Thursday, but I’m still fuming about it. Power & Politics interviewed a couple of would-be Senate candidates based solely on what I’m guessing is the sheer power of their narcissism, and not once was the actual Senate itself brought up for discussion. It was pretty much inevitable that this would happen – the moment the government announced that they would allow their advisory committee to allow self-applicants into the process, you were guaranteed to find a bunch of people who felt that somehow they had the right stuff to be a senator, and lo and behold, these people have been making themselves known, like the one guy from PEI who is going around and door knocking to get people to sign a petition about how swell he would be as a senator, never mind that a) it’s not how this works, and b) if he’s so keen about knocking on doors, maybe he should seek a party nomination to run to be an MP. Just maybe. Or the woman in Nova Scotia who thinks that just because she’s championed a couple of petitions to twin highways that she has the right stuff to be in the Senate. Never mind that neither of them have any particular policy expertise that they want to bring to the job. Never mind that both of these clowns are way too young to even be contemplating a position that is generally seen as a way that allows people who have excelled in their fields to contribute to public service as their careers are winding down. They feel that because they’re honest and have integrity (and really, who doesn’t think that they do), that makes them good material for the Senate. Okay, then.

What burns me the most, however, is the way that the media treats the narcissistic clowns and uses this as some kind of human interest story rather than to demonstrate that the Senate is actually pretty serious business. Not once were these wannabes asked what they think the Senate actually does, and how exactly they plan to contribute to a chamber that is full of subject-matter experts. None of them were asked if they know how the legislative process works, though they seemed to think that they had ample time for on-the-job training (and to a certain extent yes, that may be the case, but generally you would have some kind of other expertise going into this rather than you think you’ve got a good character). And by treating the Senate seriously in that you’re not asking people who think they should populate it about the chamber itself, it betrays the fact that We The Media seem to have learned nothing about it despite all the stories about it over the past two or three years, from the ClusterDuff fiasco to the solid debates that were had over the assisted dying bill. And that’s really sad, because you would have hoped that we would have learned something about how interesting and vital a place it is in our democratic process, but no, we remain fixated on spending scandals (for whose coverage and pearl-clutching was hugely out or proportion to what had actually taken place for most senators), and not on the actual work of the chamber, and we are all poorer for it.

Continue reading →

Roundup: Gowns for influence

Posted on by

The celebrity status of Sophie Grégoire Trudeau gained some internal clarity within government circles as new ethics rules were published with regards to her as it pertains to gifts and loans of the clothes and jewellery she wears. As a woman with a certain profile, Grégoire Trudeau has done the politic thing to do and showcase Canadian designers, because we all know that she would immediately be subject to criticism if she didn’t. And when a person of a certain profile makes that kind of decision about showcasing designers, she tends to be presented with dresses, outfits, and jewellery to showcase at different high-profile events – often for loan, but occasionally as a gift as thanks for the exposure she gives those designers, so it makes sense that there are some rules around it, as an extension of the fact that her husband is a public office holder. I get it.

What I do not get is this notion that somehow accepting the loan or rental of a gown, outfit or piece of jewellery is going to somehow corrupt the ethics of the government of the day and put them in some kind of impossible conflict of interest. And yet, here we are, once again quoting Duff Conacher, head of the Parliamentary Thought Police, giving credence to this kind of lunacy:

“In terms of personal ethics she shouldn’t be accepting these gifts. She should decide, and she will likely decide, to wear Canadian designers quite a bit to showcase them as others have … [but she should] not be tainted with even the appearance that’s she’s up for sale and happy to receive free gifts when she can afford to buy her own clothes and jewelry.”

Are. You. Serious? Aside from the fact that such a shopping habit would quickly become very expensive and become the subject of all manner of other gossip pieces (and let’s face it – the PM’s salary isn’t that generous, no matter what you may think), fashion is an industry that is not static. It’s very difficult to buy a few pieces and then just recycle them endlessly while you’re in the public eye and being seen to promote designers. That invites its own kind of damning criticism. But how, pray tell, is she “up for sale?” What influence does she wield that this is some kind of ethical dilemma for the operation of the government? She’s promoting the industry, and she is circumscribed from accepting items over $1000 (which are surrendered to the Crown collection unless she chooses to purchase them), and gifts over $200 are disclosed, which is fine. But “up for sale”? Seriously? Do you think they’re seriously going to ask her husband to send along subsidy cheques? Then again, this is from the mind of someone so paranoid that he thinks that $1500 can buy influence in government, and that capping donations at $100 will somehow fix the system rather than drive financing to less reputable channels (as it did in Quebec, which is the model he curiously admires). The disclosure rules are sensible. Let’s leave it at that.

Continue reading →

Roundup: Not a grown-up party

Posted on by

There is an interesting piece in yesterday’s Hill Times about the policy process of the Green Party as it struggles to grow from an activist movement into a serious political party. Despite the heavy reliance on commentary from the one non-party voice in particular, there are some interesting lessons therein about ways in which their current process is causing problems with resolutions around things like the BDS movement, which put it at odds with the leader. If you recall during the last election, it came to light that some of their platform policies around things like divorce laws were MRA propaganda, forcing them to do quick disavowals to go along with the shrugs of “hey, we’re a very open party” and “grassroots democracy!” And don’t get me wrong – grassroots engagement is a good and necessary thing in politics, but there does need to be framework around it that ensures that grown-ups are in charge and that really problematic contributions can be weeded out rather than thrown into the “open-chalkboard” approach that sets too low of a threshold for some of the more odious policy ideas to make it through without a really proper vetting. (Conversely, there needs to be enough power at the grassroots level so it’s not just the leader’s office deciding policy without any accountability for doing so, which the Liberals seem to be moving toward). What’s more concerning is that the attempts to move to some form of a proportional representation system that would allow for these more fringe views to gain seats without the party having matured into a credible political force that can deal with its crazies. Believe it or not, there is such a thing as being too open and too “grassroots” in politics, and it’s part of what is causing the implosion of the Republicans in the States, where the lack of controls in favour of more “direct democracy” primaries – alongside with this narrative that government is corrupt or illegitimate – has caused it to become completely unhinged. Some of these same messages are being echoed by the kinds of people within the Green Party, coded in language around the current electoral or party systems. It does become concerning, and it’s why these kinds of too-open endeavours start to make me nervous.

Continue reading →

Roundup: Rebutting the reformers’ complaints

Posted on by

If it were possible for someone to write a column that was basically one long subtweet, then I’m pretty sure that it’s what Andrew Coyne did with his column on electoral reform, with me as his unspoken target – particularly as he parroted several of my arguments (that no one else seems to be making) without actually getting their substance correct. So here we go.

When proportional representation advocates complain that the allocation of seats among the parties in the legislature does not resemble their relative shares of the votes cast — with the especially unhappy effect of allowing a minority of the voters to rule over the majority — first past the post’s defenders reply: why should it? Members were elected in 338 separate riding elections, not in a single nationwide vote.

Yes, and that’s pointed out for a number of reasons – that the vote share figure that reformers cite as evidence is not actually real (hence its use as evidence is meaningless), and the fact that each MP is elected to a single seat in a separate election has a particular meaning that gives them individual agency rather than making them a thrall of a particular party. This is an important consideration in the electoral system because it gives a clear line for how MPs are empowered, which is what we keep insisting we want. It also demonstrates that if the complaint is that MPs aren’t empowered, it’s because it’s their own choice or ignorance – not the electoral system that is at fault.

When reformers point out the imbalance this creates between voters — in a given election it typically takes many more votes to elect a member from one party than another — first-past-the-posters look positively mystified: everyone gets one ballot. And when the former observe that under first past the post the votes cast for anyone but the leading candidate in a riding are “wasted,” in the sense that they do not contribute to electing anyone, the latter lose all patience. How could any of the votes have been wasted, they ask, if all were counted? The candidate who was elected may not have been everyone’s choice, but he still represents everyone.

Here Coyne adopts the same specious math that the Broadbent Institute was pushing over Twitter yesterday, which ignores how ridings actually work, and that elections are 338 separate events, and mashes the figures together and divides by 338, pretending that it’s a number with meaning when it’s not – just like the popular vote. It’s pretty much like bringing a unicorn to a logic exam. As well, he doesn’t make a compelling argument about why votes are “wasted” because it ignores the broader political ecosystem. It has little to do with the fact that the MP who won the seat represents everyone, but that the vote itself is but one small piece of political engagement. Casting a vote is not the end-all-be-all of political engagement. Rather, the system is built for people to be joining parties and engaging at a grassroots level to develop policy and for riding associations to act as interlocutors between the local community and the caucus, even when they don’t have a local MP in that party. As well, the percentage by which the MP won the seat is a figure that matters. If it’s by a slim margin, then those votes against are certainly not “wasted” – they have a meaning in the message that it sends to the MP about where his or her support lies. That matters.

To reformers’ complaints about how the system works, in other words, the answer commonly offered is: that’s how the system works. It is as if that were not just the system we have now, but the only system there is. And of course if you assume that then yes, reformers’ objections become literally incomprehensible. They might as well object to the weather. If only one member can be elected per riding, then obviously it’s silly to talk about wasted votes, or to complain that voters who supported another candidate are not represented. That’s life. Suck it up. The resulting parliament was not proportional? That’s not how our system works.

No, that’s not why one has to point out that it’s how the system works – one needs to point that out because you need to understand how the system works before you go about changing it, which usually means breaking things and making them worse. It has been proven that every time we tinker with our system, we make it worse, which leads us to want to tinker with it more, breaking it even further. Why? Because people don’t understand how the system works, so they assume that it’s broken, particularly if they get emotional that it doesn’t do what they think it should. This is the whole premise of my book – that we need to stop and understand how and why things work the way they do before we go about messing with the system some more because history has shown repeatedly that tinkering makes it worse. Ignorance is literally killing our democracy, and no matter how well intentioned its reformers tend to be, they almost always make it worse.

At any rate, it’s worth debating. Some might argue that single-member ridings give constituents a clearer sense of who to take their problems to, and who to hold to account. Others might reply that, with several members competing to represent them, constituents might get better service: if one didn’t answer your letter, another might.

From here, Coyne goes off about how maybe multi-member ridings would be better, possibly sprinkled in with single-member ones where they would be too large (hello, all of rural and remote Canada), which immediately brings up questions about how that could possibly be considered a more fair system. And while he touches ever so briefly on accountability, he gets the premise wrong – an MP’s job is not to “service” one’s constituents. It’s about holding the government to account. This, however, is lost on the reformers, whose fetishisation with fantastical notions about “representation” overshadow all other aspects of how the system works in its broader ecosystem. Yes, representation is a part of it, but it is not the totality, and yet that is what all of their reforms are geared toward with no regard for the bigger whole.

So no, it’s not about whether other systems are possible – it’s about not making things worse because you don’t understand how things work now. That’s a very different thing entirely.

Continue reading →

Roundup: More awful electoral reform questions

Posted on by

Another day, another meeting of the electoral reform committee, which produced yet more kinds of awful. Marc Mayrand, the outgoing Chief Electoral Officer, gave a few facts to MPs, like the fact that a referendum (if the enabling legislation were changed) would cost about $300 million to run, or the fact that Elections Canada could be ready in time for a 2019 election under a new system, provided that everything was settled by May of next year. (Note: This may be overly optimistic considering the constitutional questions raised by some kinds of voting systems). But some of the worst moments were around questions raised to both Mayrand and his predecessor, Jean-Pierre Kingsley, about things like online voting.

No. No, no, no, no, no. The problem with online voting has zero to do with encryption technology and everything to do with the secrecy of the ballot, and anyone who confuses the two needs a smack upside the head. The secrecy of the ballot is ensuring that nobody sees who you are voting for, so that you can’t be rewarded or punished for it, you know, like in the era of “rum bottle politics.” And you can’t ensure the secrecy of the ballot with online voting. “But what about mail-in ballots?” you ask. Well, the proportion of those is so small that it’s a compromise that we have to make. Online voting is not comparable.

https://twitter.com/inklesspw/status/751122720520282113

This particular intervention is complete nonsense. Does David Christopherson not take the phone calls of his constituents unless they can prove that they voted NDP? Does he not present their petitions in Parliament? Oh, so he does? Then they don’t “get nothing,” and it’s fundamentally wrong for anyone to suggest otherwise, and proof that they don’t know what it means to be an MP.

And then there’s this specious and utterly wrong nonsense, because it’s fundamentally dishonest. Do you know how many voters it took to elect Elizabeth May? 37,000 votes. We have ridings, where people decide who gets to sit in each seat. We don’t apportion seats based on the number of votes they receive, and to try and present it as such in order to prove some point is basically lying. And yes, this is the kinds of discourse that this process is bringing out, so well done everyone.

And then there are the editorials and op-eds. Christina Spencer is not at all impressed with how this committee has gotten started (and I can’t say that I blame her – it’s been pretty awful). Kelly McParland thinks the Liberals are counting on apathy in order to get their preferred electoral system through (hence their reluctance for a referendum), while Michael Den Tandt thinks the insistence of “focus grouping” their electoral reform consultations is really a shell game of “trust us” while they push ranked ballots through. Colin Horgan suggests that the “electoral reform toolkit” is an attempt at making the conversation appear to be more grassroots.

Continue reading →

Roundup: Duffy expenses redux

Posted on by

Because it’s never over, the saga of Mike Duffy’s illegitimate expenses are back in the news as Senate Administration is demanding that he repay some $16,955 in expenses claimed improperly that were paid for using his third-party contract with Gerald Donohue. And, wouldn’t you know it, Duffy’s lawyer is raising a huge fuss saying that the judge in the trial already declared that these were okay – something senators dispute, saying that just because they were not deemed criminal it doesn’t mean that they were okay, particularly when these expenses were not allowable and that the third-party contract was used to go around the approval process. (Duffy’s lawyer, incidentally, is also hinting that they will demand back pay for the suspension, to the tune of $155,000). But this is where the particular nature of the Senate comes into play, which is that it’s a self-governing body that is protected by parliamentary privilege, and it needs to be in order to safeguard our democratic system. In governing its own affairs, it is allowed to enforce its own rules (which, it bears reminding, do and did exist no matter what Bayne tried to argue in trial). And it is also empowered to enforce its own discipline, which is what the suspensions were related to – not a determination of criminality or a reflection of it, but rather that Duffy (and Wallin and Brazeau) had brought disrepute onto the Chamber and an example needed to be made. Is it fair? Possibly not, but this is also politics. Bayne raised the straw man argument that the 29 other senators whose expenses were flagged by the Auditor General weren’t suspended, which is a ridiculous argument considering that a) Duffy was not part of that process at all; and b) they ensured that there was a resolution process that ended in repayment one way or the other, so nobody was seen to be escaping justice. I don’t think Bayne will find much truck in the courts if he wants to press the issue around Duffy’s suspension or the fact that they are demanding repayment for expenses that clearly were not allowed, but it seems that we may be subjected to more drama around this, possibly for years if they take the matter as far as the Supreme Court of Canada.

Continue reading →

Roundup: Bills left unpassed

Posted on by

While the House of Commons may have risen for the summer on Friday, they did so with an unusual number of bills waiting to pass third reading, not to mention the fact that Bill C-7 on RCMP unionization is heading back to them after the Senate amends it (and those amendments have passed at the committee stage and are awaiting third reading vote). What is most unusual to me is the fact that C-7 was another bill that was in response to a Supreme Court decision that also was granted an extension, and still managed to miss its deadline and remains un-passed. Now, the government is prepared to allow it go un-passed through the summer, despite the fact that while it was under consideration on the Commons side, they insisted they couldn’t make substantive amendments to the bill because of the deadline. That deadline has passed, and they are willing to now let it go through the summer, the sense of urgency suddenly evaporated? How? It makes no sense. And looking at the other bills that they haven’t passed yet, there are two that are both awaiting Third Reading and could have passed if they’d sat for an extra couple of days: C-2 on their vaunted income tax changes, and C-4 on undoing the Conservatives’ changes to labour rights. Why they’re letting these languish through the summer – particularly C-4, which keeps some pretty onerous regulations for labour unions on the books – is frankly mystifying.

I will say that the mood in the Commons was strangely exhausted by the time Friday rolled around, when they hadn’t even been doing late-night sittings up to this point in order to get things passed an off to the Senate (often with the expectation to get those bills passed as well before rising themselves). In fact, normally by this time, MPs are outright feral, and the tone in the Commons could generally be compared to jeering, hooting baboons. Mind you, we had The Elbowing and that associated drama a few weeks ago, and as someone remarked to me the other day (and if I could remember who you were when I had this conversation, I would credit you), they basically peaked too soon this year. And that very well could be. It still makes no sense that they would leave these two bills on the Order Paper waiting for final debate, or not waiting for C-7 to come back from the Senate. But then again, there have been a lot of questionable choices made this spring, so perhaps we should chalk it up to more of that.

Continue reading →

Roundup: Parliament’s ongoing abdication

Posted on by

After a day of impassioned and indeed blistering speeches, Bill C-14 has passed the Senate without its key amendment that would remove the “foreseeable death” restriction, and has received Royal Assent, making it law, but it wasn’t done without more damage done to our parliamentary system. No, I’m not one of those pearl-clutchers who saw the Senate doing its job in standing up against unconstitutional legislation as being some kind of anathema or affront to the democratically elected Commons – indeed, anyone who listened to Senator Serge Joyal’s speech yesterday about all of the times that the elected majority in the Commons used their powers to strip away people’s rights should see that’s why simply hand-waving about “democracy” can’t be an argument that holds water – but rather, it was the burden that is being placed on the Supreme Court of Canada and those who must challenge this legislation that is the affront. The prevailing sentiment in the chamber became “this is going to be challenged, and we did as much as we can so now it’s up to the Supreme Court,” when no, the Senate could have dug in their heels and used the powers available to them under the constitution and threaten to defeat the bill outright because of the grave doubts about its constitutionality if the government didn’t back down. Joyal tried to move an amendment that would restore the previous amendment with a proviso that it be suspended for up to two years until the Supreme Court could weigh in on its constitutionality, which was a compromise that I remain uncomfortable with because I don’t like the fact that we are increasingly demanding that the Supreme Court weigh in on bills as though legislating were a game of “Mother May I?” I was almost convinced, however, by the fact that doing it this way would be at the government’s expense rather than at the expense of a family with a suffering member who would need to begin the legal challenge process all over again – something that some senators deemed to be an immoral action. It bothers me a great deal that this is becoming the new normal in our politics – that we are increasingly becoming dependent upon the courts to deal with matters of evolving public policy because MPs – and indeed senators – lack the testicular/ovarian fortitude to actually deal with tough issues.

To that end, I’m also extremely disappointed that you had senators who said that they did their job in warning the government about the fact that the bill was unconstitutional, and that the government will have to answer to the people for it. Except it’s not the Senate’s job to “warn” – it’s their job to protect minorities and the constitution, which they did not end up doing today. And “answering to the people” is precisely why the government has been so forcefully timid in what they were going to allow under this bill. “This is just the first step,” they kept insisting, but to be perfectly frank, I don’t believe them. The bill mandates that they must have a report within two years on things like advanced directives, mature minors and the mentally ill, but if you think they’re going to do something that report other than refusing to touch it with a bargepole, well, you’re a far more optimistic person than I. No, what happened today was a further abdication by parliamentarians in both chambers of doing their jobs, and forcing more of it onto the courts (and at the cost of the individuals who will be forced to bring the challenges). It’s disgraceful.

Continue reading →

Roundup: Squeamish MPs and the problems they cause

Posted on by

So many pearls got clutched yesterday on a couple of topics that, while unrelated, actually have a lot more in common than one may think. The Supreme Court ruled yesterday that the legal definition of bestiality must include penetration (with only Justice Abella dissenting) based on its common law definitions going back years. It was a case that involved the sexual abuse of teen girls, but if you judged by the headlines and the reactions on social media, it was a number of bizarre over-readings of what the ruling was, as though they ruled it legal rather than saying that there is a hole in the law because MPs didn’t properly update it when they had a chance. And this is where this starts to overlap with what else is happening.

As you may have guessed, the pearl-clutching amongst the pundit class carries on over the Senate amending bill C-14 (I swear that Michael Den Tandt has clutched his pearls so tightly that he’s cut off the flow of oxygen to his brain) and the “suddenly assertive” Senate (it’s actually not, but rather it has a couple of genuinely problematic bills before it), and while I won’t repeat yesterday’s civics lesson, let me say that the Supreme Court decision around bestiality is exactly the kind of object lesson that the assisted dying legislation could easily become.

Let’s face it – MPs don’t like to deal with tough issues. When the abortion laws they tried to pass post-Morgentaler decision was defeated, they didn’t make a second attempt. When they passed “temporary” prostitution laws in the 1980s to deal with a specific public nuisance issue, they didn’t return to the issue as promised to deal with it until the Supreme Court struck them down in the Bedford decision. We saw yesterday morning with the bestiality case that where MPs should have dealt with the issue when they changed other laws around the issue in the 1980s, they didn’t until the Supreme Court had to render a decision that pointed out the loophole and a sexual offender had two charges against him dropped rather than the court make up a new law holus bolus. And now there’s doctor-assisted dying. The Court had very good reasons when they made the Carter decision to insist on a timeline, which MPs have been balking about because they don’t want to deal with it. When the Prime Minister defends the conservative nature of C-14 with the excuse that it’s the “first step” of a longer conversation, I don’t actually trust that there will be a second step because MPs are too squeamish to deal with tough problems. And that’s exactly why I think the Senate is right to rip the band-aid off right now and force the government to actually deal with the whole issue as the Supreme Court laid it out. And yes, the government is going to grumble and say they don’t want to accept the amendments, but I also think that it’s part of the narrative of reluctance, where they can then hide behind the Senate as having “forced” them to accept the changes, so that they have political cover when interest groups confront them during the next election. But we’ve seen this problem of MPs not wanting to do their jobs time and again and the problems that it eventually causes. And if it means that the Senate has to be the grown-ups and make them deal with it this time, so be it.

Continue reading →