Tag Archives: Supreme Court

Roundup: An exit and a streamlining

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In case you hadn’t heard, there are two national political policy conventions happening this weekend, both at the same time, so Kady O’Malley came up with a viewer’s guide to both events. Last night we heard from Stephen Harper in a pretty canned speech that was mostly the same talking points that were in his retrospective video, and he wants the party to look forward. The rest of the Conservative convention is to be dedicated to reinvigorating the party as opposed to giving it a complete overhaul, so say its attendees, but there is a push to get a better organization in place to engage youth in the country – something the party has not been good at doing, officially eschewing a youth wing – and the “draft Rona Ambrose” movement continues to try to get enough support to modify the party’s constitution to allow her to run (never mind that she’s stated repeatedly that she’s not interested in the job).

As for the Liberals, it’s not just a victory lap for them as they went from third place and from talks of their time being over and needing to merge with the NDP to forming a majority government. No, they’ve got a very serious debate on their hands as it relates to whether they adopt a new “streamlined” constitution or now, and by “streamlined,” it means more than just the actual streamlining of having 18 different constitutions, but it centralizes all of the power into the leader’s office and eliminates pretty much every accountability mechanism that exists in the party for the sake of becoming a party of Big Data. So while some streamlining is no doubt necessary, I’m not sure that this is the way that the party should be run. There is also a movement to have an emergency resolution debated to pressure the government into amending C-14 to make it more Carter decision compliant, but it appears that the party has quashed it.

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Roundup: The elbowing

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I can scarcely express just how stupid things got yesterday because everyone needed to rush to score points. But here we are. Starting back at the beginning, the government decided to put a motion on the Notice Paper that was basically the nuclear option of time allocation measures – essentially suspending all avenues by which the opposition could propose dilatory motions until the Commons rises for the summer, so that they can get C-14 and a few other timely pieces of legislation passed. And the opposition freaked out.

Nobody is quite sure why the Liberals resorted to such tactics, but my working theory is that the closed-door House Leaders’ meetings have degenerated to being unworkable (not an unlikely theory considering that my sources told me in the previous parliament that Peter Julian was impossible to work with), and Monday’s surprise vote after the NDP lied about the motions they were moving that day broke the trust of the Liberals, who had been attempting to work amiably with them. It’s also possible that putting this motion on the Notice Paper was as the nuclear option – the threat to hold over their heads in order to try and force them to come to the table with reasonable requests for timelines on debates. Dominic LeBlanc went so far as to suggest that rather than constraining debate, they were trying to allow for more under this motion, not that the opposition believed him. Temperatures got raised, and QP was one of the most heated of the current session.

After QP and the Komagata Maru apology, the procedural games started up again, including a privilege motion from Julian about how terribly draconian these tactics were. Fast forward a couple of hours to the time allocation vote on C-14, and the NDP apparently decided to play the childish tactic of physically blocking the Conservative whip from being able to walk down the aisle. The NDP claimed they were just “milling about,” but people milling about don’t all stand facing the same direction, and both Elizabeth May and Andrew Leslie have confirmed that there were shenanigans being played. And it would seem that Justin Trudeau had lost his patience by this point, possibly because Christy Clark was waiting in his office for a meeting he was already late for, and he still had a Komagata Maru apology reception to speak at, also late for. And so he did something completely boneheaded – he got up, went to the NDP blockade, and reached through to grab the Conservative whip and pull him through (which he apparently didn’t appreciate either), and in the course of that, accidentally elbowed Ruth Ellen Brosseau. Moments later, he went back to apologise to her as she fled the chamber – apparently flustered and unable to cope – when Thomas Mulcair began screaming at Trudeau and jabbing in his direction, when suddenly MPs from both sides of the aisle went to pull them apart before things got physical. It was all over in seconds, and Trudeau apologised for his actions.

Not well enough, apparently, as he did it again later when Brosseau reappeared in the chamber, but it doesn’t seem to matter because opposition MPs were now in point-scoring mode. Niki Ashton immediately got to her feet to decry that Trudeau had violated the “safe space” of the Chamber and NDP MPs started likening the incident to domestic violence, bullying and physical intimidation, and Julian talked about how his aunt was beaten to death. No, seriously. The Conservatives soon after began piling on, smelling blood in the water, and it devolved from there. Outside the chamber, Scheer and Julian took to the microphones to ramp up the spin, Julian deciding to drop the hints that there were “rumours” to the fact that Trudeau has some kind of history of violence, because there were points to be scored. And the faux outrage dominated the Twitter Machine as “fearful” MPs registered their shock and horror at what they’d witnessed. And it was just so stupid that I can’t even. Suffice to say, this looks like it’s going to boil down into privilege hearings in the Procedure and House Affairs committee, and we’re going to be subjected to weeks of un-clever “sunny ways” references, and suggestions that Trudeau is apparently unfit for office. It’s a good thing that next week is a constituency week, but I fear for what the final stretch of sitting weeks is going to be like if tempers are this frayed this early. I suspect it’s going to get really ugly from here.

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Roundup: Who to blame for short timelines

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Our friend Kady O’Malley penned a column over the weekend about how anyone upset about the tight timeline of the assisted dying legislation should be upset at the fixed election date instead of the Supreme Court for imposing the deadline. And she’s right, but I’m not particularly enthused about her suggestion that the election date be moved to earlier in the year instead of October, as that date pretty much wipes out the fall sitting of Parliament. I mean, that is a valid point, but if you were to ask me, the real suggestion would be to simply eliminate the fixed election date as we already have a constitutional requirement that elections be held every five years, whereas the fixed date is a particular bit of Americanisation that is supposed to provide stability but just winds up making the whole system worse off, from turning Question Period into an unrelenting series of election ads, to simply changing the government’s calculations on policy to suit that date rather than supposedly helping the opposition by giving them more predictability when it comes to election timing. It didn’t, incidentally, stop the speculation of early election calls since pretty much every media outlet continued to ask whether there would be an early call (as is permissible, since the legislation can’t actually bind the powers of the Governor General), so it’s not like it changed that conversation any. That all being said, I would like to note that while many people quite rightly point out that there was no obligation on the Supreme Court to give the government that year (plus the extra four months) to come up with a bill, but could rather have struck down that prohibition immediately and we would have had few ill-effects, I will point out that without a deadline, MPs would simply keep putting off the legislation under the constant plaintive wails that it’s “deeply personal” and “a difficult subject.” Our MPs, in the event you haven’t noticed, are a lot that really are pretty lacking when it comes to moral courage to deal with difficult things. Instead, they wait for people to bring it to the courts in order to be “forced” to deal with it, and if you look at the pattern from the last decade or so, their response is to half-ass some rushed legislation in response, decry the courts for forcing them into such a compromise position, and leave it for it all to be challenged in court once again. That we have a new government doesn’t seem to have changed the pattern too much, with overly cautious legislation that doesn’t appear to meet the test laid out by the Supreme Court in the Carter decision, while MPs fall all over themselves to declare that it’s a “deeply personal” issue while wailing plaintively that there are no provisions for more palliative care in a bill that is about changing Criminal Code prohibitions. So rather than blaming the fixed election date (which is a valid position), I choose instead to blame our rather spineless crop of MPs, who have mostly chosen to complain about the lot they’ve been given rather than rise to the occasion.

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Roundup: A rare apology

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A trio of Justin Trudeau-related items in the news today, which makes me want to look at them together. The first incident of note was actually last in chronological order, but to me it seemed most significant, which is the fact that during Question Period yesterday, Trudeau stood up and apologised for having told reporters on Wednesday that opposition party obstruction was to blame for why a committee on electoral reform was not yet up and running, and pledged that he was still serious about the topic. I’m not sure that we ever saw Stephen Harper apologise, nor would we ever see it because that was a man who was not only determined to always be seen to be right, but he also had a particularly obstinate streak that made him dig his heels in rather than be proven to be wrong. Most often this was around the inappropriate behaviours of cabinet ministers, and rather than have them step down over wrongdoing, Harper would keep them in position well past the time that the heat was on them, and only shuffle them once the attention was elsewhere so it didn’t look like he was capitulating to demands of the reporters. Trudeau on the other hand owned up to what he had said, apologised, promised to do better, and even applauded when the MP who called him out made a slightly clever dig about it in his follow-up question. It was a show of humility and accountability that we are unused to seeing here. The second incident of note was after his speech on Fort McMurray at the start of the day, during Statements by Ministers (a practice in Routine Proceedings that the Conservatives had virtually allowed to fall into complete disuse). Rona Ambrose rose to give remarks in reply, and got emotional during it, and once she finished speaking, Trudeau was quick to cross the aisle to give her a quick hug – again, something that cold fish Harper was loathe to do, and only once gave awkward hugs around speeches related to either an MP’s passing or the attack on Parliament Hill (I forget which and tried to find a reference but couldn’t – forgive me). Trudeau remains a master of the humanizing gesture that helps to civilise politics in a way that we have become unused to after a decade of angry sound and fury. The third item of note had to do with a point of order raised after QP, when Blake Richards accused Trudeau of sticking his tongue out during a question raised by Diane Watts about P3 projects. Nobody but Richards seems to have witnessed this, but we do know that Trudeau does occasionally possess an irreverent side. Did he stick his tongue out? Maybe. Is it the end of the world if he did? Hardly, and in the theatrics of QP, it’s a bit tiresome but does raise the spectre of the “fuddle duddle” incident, if only less profane.

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Roundup: Duffy’s long road back

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We heard confirmation yesterday from Duffy’s lawyer that he does indeed plan to return to the Senate despite some serious health concerns, not that he’ll find many friends there, which could make things more awkward than they’ll already be. In talking with one senator yesterday, I heard largely that he had few friends there to begin with, and because he spent his time fundraising for the party instead of doing actual Senate work, he never really got to know or ingratiate himself with his actual Senate colleagues, so it’s not like he’ll have a long list of people looking to welcome him back with open arms. And, because it’s unlikely the party will welcome him back, Duffy may continue to find himself on the outside. His lawyer also suggested that perhaps he should be paid back for the time in which he was suspended without pay, but you will find that argument will quickly go down in flames as senators will remind you that their internal discipline process is separate from the criminal trial, and his suspension without pay was internal discipline. And we’ll get a bunch of pundits lazily declaring that the Senate is still lax in its rules and processes, which it isn’t (and I would argue really wasn’t when Duffy was taking advantage of it), and oh look – Scott Reid did just that. Kady O’Malley admits her surprise in the ruling, while Andrew Coyne takes umbrage with “not criminal” as a standard that seems to be emerging. The Winnipeg Free Press editorial board notes how the new, better appointments could help to restore the Senate’s credibility, while CBC looks at what effect the Duffy verdict could have with future prosecutions of other senators’ questionable conduct.

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Roundup: Supreme Court hand-holding

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I was all set to write about the Liberals invoking time allocation on the Air Canada bill, when I saw this story and it pissed me right off: Thomas Mulcair thinks that the assisted dying bill needs to be referred to the Supreme Court to ensure that it meets the tests set out in the Carter decision. And it set me off, because this is completely ridiculous. The bill hasn’t even been debated yet, and already they want to demand that the Supreme Court start weighing in? Are you serious? Oh, but of course it’s serious – it’s part of this ongoing pattern of a lack of moral courage that MPs are oh so good at demonstrating, where they don’t want to be seen to have to make any tough decisions, so they fob it off onto the courts to do it for them. And here, before he’s even spoken to the bill in the Commons, he wants the court to do the heavy lifting for him. And it’s an endemic pattern. Usually, it involves the officers of parliament, for whom MPs have so successfully fobbed off all of their work that those officers are de facto the official opposition these days, holding the government to account and doing the heavy lifting because MPs won’t. Oh sure, they’re happy to make snide remarks and to manufacture a bunch of fake outrage in QP, but they won’t scrutinise estimates anymore, and barely scrutinise bills. Hell, their very first bill in this parliament got sent to the Senate in an incomplete form because they couldn’t be bothered to actually check it, but rather passed it at all stages in 20 minutes. And now they want the Supreme Court to do even more of that homework for them. And just like with other homework, where MPs use officers of parliament as their partisan shields (witness the number of questions in QP predicated with “The PBO says…”), Mulcair is looking to use the Supreme Court to do just that for this bill. Before it’s even had a minute of debate. Rather than just stand up and say “In my analysis, this bill doesn’t meet the Carter decision,” no, he needs to hide behind the Supreme Court so that it doesn’t look like the criticism is coming from him. That MPs do this is ridiculous and infantile. You’re elected to do a job – so actually grow up and do it.

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Roundup: Checking Hansard

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There was an interesting read over on Policy Options yesterday that all MPs should be paying attention to: a reminder that they should watch what they say in when speaking about bills, because the courts (and most especially the Supreme Court of Canada) are checking Hansard. When it comes to challenging laws, particularly Charter challenges, the issue of legislative intent is often raised, and the courts are forced to determine what it was the government intended to do when they passed these laws, and that can matter as to whether those laws will survive a Charter challenge. And if MPs – and most importantly ministers – give speeches full of bafflegab and meaningless talking points, it muddies the record that the courts rely on. The example here was the bill eliminating time-served sentencing credits, by which the court examined Rob Nicholson’s statements and tested them against the results of the law and found that no, eliminating the sentencing credits didn’t enhance public safety or confidence in the justice system. I would also add that it’s yet another reason why Senate committees have particular value, particularly when it comes to contentious bills that perhaps shouldn’t pass but do anyway under protest. Because their findings are on the record, when those laws inevitably wind up in the courts, those same objections can be read and taken into consideration. So yes, your speeches and work in parliament does matter, probably more than you think. Just be sure to use your words wisely, because they will come back to haunt you.

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Roundup: Monsef’s problematic principles

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I was set to delve into the eight principles that Maryam Monsef laid out as part of what she plans to work on the electoral reform proposals around, when it turned out that Peter Loewen went ahead and tracked which of the three most likely voting systems corresponded to each principle. Suffice to say, not one system fit with each, which gives rise to the notion that Monsef will have to treat some principles more than others. Now, the NDP were outraged in QP yesterday that proportionality was not on this list of principles, though one could argue that the first principle, that votes are translated into election results without significant distortions, could be an endorsement of proportionality, except of course that it’s a perception problem based on a logical fallacy, which makes its inclusion as a principle to be a problem. I also have a problem with the inclusion of the third principle of using the system to increase diversity. That’s not a problem of the electoral system so much as it’s a problem of how parties seek out and nominate candidates. Most parties are getting better at this, but we should beware that including this principle would give rise to list systems, which in turn give rise to unaccountable token MPs in a two-tiered system. Monsef’s eighth principle, that the system needs to build consensus, is also problematic. Why? Because our system is built to hold people to account, and consensus makes this problematic. If everyone is accountable, then no one is accountable. Of course, I would remind everyone that there’s nothing actually wrong with our system as it is – what’s wrong is our crisis of civic literacy, which means that people don’t understand how the system works, leading them to assume that it’s broken – particularly if they succumb to sore loser tendencies and complain about things like “wasted votes.” If I may be so bold, Monsef is probably better off tinkering with the existing system to encourage greater participation (as we saw examples of in the last election, such as campus polling stations) and education rather than this attempt to rethink the system which will please no one and ensure that everything is worse off than it is now. We don’t have to break the system even further. We can stop this train before it goes off that cliff.

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Roundup: Harder’s budget request

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Peter Harder is asking the Senate for a budget of $800,000 to hire nine people to assist in his “government representative duties.” While I’m not opposed to the dollar figure, I’m a bit curious about why nine staff, but let’s back up first to the precedent that is guiding this whole exercise, being Stephen Harper’s fit of pique when Marjory LeBreton resigned as Government Leader in the Senate. By that point, Harper was being badgered and hectored daily about the ClusterDuff incident, as well as Pamela Wallin and Patrick Brazeau, and he decided that his next Government Leader, Claude Carignan, was not going to be put into cabinet so as to give the appearance of distance. Of course, it was only the appearance, as Carignan was a minister in every respect but name, including being sworn into the Privy Council (necessary to get the briefing books to answer on behalf of the government in Senate QP). But because he wasn’t a minister, he couldn’t get funding from PCO for staff and needed activities, so Carignan went to the Senate and asked for a bigger budget, and he got it, hiring a staff of 14. With Trudeau now being fairly cute with the way he is handling the “government representative” file – Harder being sworn into Privy Council and able to attend cabinet meetings – the government decided that with the Carignan precedent, Harder can simply ask the Senate for the budget he needs. Now, he is getting some pushback about getting a budget without attendant responsibilities, such as answering in QP. They referred the decision to a subcommittee (that still hasn’t been filled), but I do wonder why nine. I can understand an admin staff, a policy person or two, a comms person, but without a caucus to manage, what exactly is so labour intensive about “shepherding the government’s agenda”? That’s a bit of time management, introducing the odd debate on government legislation, but what else would he be required to do? So perhaps we’ll get some answers, but it does seem a bit odd to me.

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Roundup: The Senate Advisory Board reports

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In keeping with the commitment to openness and transparency, the Independent Advisory Board for Senate Appointments released their report yesterday (PDF) on the interim process by which the first seven of the new independent Senate appointments were chosen. It’s an interesting read – they had a list of nearly 300 names to consider after consultations and nominations, from which they whittled it down to 25 names – five per vacancy that they were expected to fill, from which Justin Trudeau ended up selecting seven names rather than just five. The cost of the whole process was about $170,000, which seems to be pretty bare bones if you ask me. There were observations on the process included in the report, primarily that the process was pretty rushed, which meant that most of the information they had on candidates were all based on self-declaration, and that they didn’t conduct interviews with their short-list candidates in this process – they merely identified them, and one presumes that PMO was then responsible for the final vetting – something that might change as the process goes forward and the panel has more time and resources going forward as they look to fill the remaining vacancies over the next year or so, and any future vacancies as they come up. Also, the report listed the nearly 400 groups that the Board reached out to in order to get suggestions, and had demographic data on gender, linguistic profile, and Aboriginal and visible minority status. It also noted that failed candidates got a letter thanking them for participation, and the report noted that they are free to apply again under the future process. The chair of the Board has dismissed any concerns over the issue of André Pratte and his property hiccough, given that it will be resolved before he is appointed, and it’s a perfectly reasonable position to take. I will also note that this report answers most of the questions that Scott Reid has been howling about in QP over the past couple of months with regard to process and the secrecy of the system. Yes, there is an expectation of confidentiality for those who did not get appointed, as with any Governor-in-Council appointment, and from the language of the report, the PM did indeed choose the names from those on the short lists. Thus far, it looks like this new system is working as expected, and it provides the necessary suggestions for how to improve the process even further. Of course, we need to see how these new senators will perform, particularly in the capacity as independents in a system where the rules are still weighted to party caucuses (though that is slowly changing), but so far Trudeau’s reform plans are bearing fruit. We just need time to evaluate them going forward before we can declare it a success or not.

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