Tag Archives: The Senate

Roundup: Senate constituency office?

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Independent Senator Dan Christmas has opted to open a “constituency” office in his local Mi’kmaw community in Nova Scotia in a bid to be more accessible. Which is all well and good, but the CBC piece that reported on this is atrocious. Embarrassingly so.

The article refers to Christmas as a “member of the Canadian government” which he explicitly is not. Being a member of government means being part of Cabinet, which Christmas certainly is not. In fact, as a senator, his job is to hold government to account. That’s not talked about in here at all. I’m also not sure what he hopes to use the office for, because senators traditionally don’t do the kinds of constituency work that MPs do, such as acting in an ombudsman-like capacity for constituents having trouble dealing with the civil service (particularly with immigration files, which is a huge problem). And it’s not like he’s the first senator to do so – I recall Senator Mike Duffy making a big deal about doing the same thing in PEI (which I can’t recall if he ever got around to actually doing, or if it was simply a stated intention that some of the usual pundits went around congratulating him for), and Senator Bob Runciman had a constituency office as well. Regardless, the article doesn’t really give much of a sense of his plans for the office – just that he wants to be visible in his community and that he wants to be a kind of “ambassador” to Ottawa from the Mi’kmaw, which again, not really an apt analogy because he doesn’t represent that government in any capacity. I am forced to wonder if this is a result of a lack of understanding of his role because, as an Independent senator, he lacks much in the way of proper mentoring from established senators, but again, I remain mystified, and we’ll see how long this lasts before he realises he could better spend his office budget doing things that are of more utility.

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Roundup: Cluelessly disparaging parliamentary privilege

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Sometimes you read an op-ed so clueless that it burns. This piece by lawyer and part-time law professor Daniel Tsai about the Mike Duffy lawsuit is one of those pieces. Tsai argues that the lawsuit is an opportunity for the courts to make changes to the Senate that, according to him, will make it “more accountable.” As his evidence, he cites statements from Government Leader in the Senate – err, “government representative” Senator Peter Harder darkly musing that some senators may want to protect their friends, and Senator Marilou McPhedran’s quest to root out harassment in the Senate as “proof” that the problem is the Senate’s parliamentary privilege. But he also cites former Senator Don Meredith as a case of harassment without also acknowledging that it was because the Senate has parliamentary privilege that they’re able to discipline their own, and that they had recommended expulsion for his breaching the Senate’s ethical code, and that forced his hand to resign. This is a feature, not a bug.

The whole piece demonstrates that, lawyer or not, Tsai doesn’t understand what privilege is, the importance of Parliament’s need to be self-governing (if it’s not, we might as well just turn power back over to the Queen), or the fact that the institutional independence of the Senate (which allows it to hold the government to account) requires it to have a robust set of privileges that can police its own members rather than subject the institution to threats of lawsuits from its various members when they’ve feeling sore by the fact that they’ve been disciplined. Weakening privilege won’t make the Senate more accountable – it will make it vulnerable to vexatious litigation, and along the way, weaken the House of Commons’ own parliamentary privileges as well (because the privileges of the Senate and the Commons are inextricably linked).

None of this is to suggest that the Senate is perfect – it’s not, and there have been bad apples that generally have been made to resign when the going gets tough. Tsai completely ignores the constitutional role of the Senate and the way in which it’s constructed with a defined purpose in mind in order to engage in some populist pandering to the myths that surround the institution. His “solution” about a judicially-imposed limitation on the privileges that are embedded in the constitution (seriously?!) would make things worse, not better.

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Roundup: Performing partisanship

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Andrew Potter put out a very interesting post yesterday about self-help for partisans, given the tone of the rhetoric right now, and it came at a particularly apropos moment given how unreadable my Twitter reply column has become since the publication of my fact-check piece for Maclean’s. And no, it’s not just Conservatives who are sore that their team has been caught out, it’s also an equal number of their opponents who are utterly obnoxious in using the piece to prove something about the Conservatives.

What has really gotten me, however, are the number of partisans whom I’ve worked with, who have been sources for pieces I’ve written that have savaged the Liberal government, who are taking to Twitter to accuse me of bias. And I had to step back from my reactions to realise something that Potter articulated in his piece:

And maybe that’s the big problem — that everyone has stopped arguing with their opponents, and has decided to simply perform for their supporters.

And this is it exactly – they’re not engaging critically with what I wrote or acknowledging that I have a record of being just as critical on the government on very substantial issues (as opposed to cheap outrage and the usual hairshirt parsimony that means nothing). They have to take to social media to denounce me in order to perform their partisanship. And I get it. But it’s really, really disappointing.

But as Potter also points out, this is also reflecting itself in how Parliament is operating these days – MPs aren’t debating with one another. They’re performing for their base, and we can see that in the way that we went from debate to reading speeches into the void, and from QP that engaged on issues to one that is now solely focused on generating outrage clips for social media. Parliament is ceasing to be about debate or ideas, or about governance or accountability – it’s about performing for your base so that you can win a few more votes. And that’s not only sad, but it’s terrifying for what it means for the future. And that’s why I think we need to have a rethink of where rules changes have gotten us, and start reshaping those rules that will force MPs to re-engage with Parliament in the way it’s intended to run, rather than allowing it to further degrade into this puppet show we’re careening toward.

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Roundup: Duffy’s poor arguments

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Day two of Duffy’s bid to sue the Senate, and his lawyer came up with some…novel arguments. And it sounds like the judge wasn’t buying many of them. For example, they tried to argue that because PMO was exerting influence on the Senate’s leadership that it should nullify privilege. That’s…creative, and utterly ridiculous. When he tried to argue that the suspension should be invalid because it was done for political purposes, the judge wondered aloud if that meant she would have to call every member of the Internal Economy Committee to testify as to their motives – and no, that wasn’t going to happen she quickly decided. They also tried to argue that because the suspension wasn’t related to legislation that privilege doesn’t apply. But that’s also ridiculous because the ability to discipline its members is among the privileges outlined in Section 18 of the Constitution Act, 1867. So good luck with that.  Oh, and the “indefinite suspension” argument is also void because it wasn’t indefinite – it was until the end of the parliamentary session, and there was a fixed election date, so it would expire at that point regardless. (Also, the Senate’s privileges allow it to expel a member, so arguing that indefinite suspension is tantamount to expulsion is also not a solid argument).

The final argument was a plea to put the Charter ahead of privilege, which would go against previous Supreme Court of Canada rulings that stated just the opposite – that the Charter doesn’t trump privilege, because that would open up a floodgate to litigation against the parliamentary process. There’s a thing called stare decisis, the doctrine of precedent that binds our common law system, and while there are rare cases where it can be challenges, this isn’t one of them. It’s actually quite audacious that his lawyer would make the case, and I’m not seeing any particular argument about how the judge should invalidate a Supreme Court of Canada ruling. So yeah. Good luck to this case, because I really don’t see it going anywhere fast.

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Roundup: Fighting to preserve parliamentary privilege

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Senator Mike Duffy’s court challenge started yesterday, and the Senate as a whole fought back to have the Chamber excluded from his lawsuit under the rubric of parliamentary privilege. The Senate’s privileges include the ability to discipline its members – and this needs to be reiterated firmly, because as a self-governing body with institutional independence, that’s the only way that senators can be disciplined outside of a criminal process. This is also why there is a differentiation when it comes to the judge asking the hypothetical about the Speaker shooting someone – privilege does not necessarily cover criminality.

Part of what Duffy’s lawyers are trying to argue was that the Senate’s punishment of his suspension without pay should be subject to judicial review because he was acquitted of all charges by the Ontario Superior Court. The problem is that he was found to have broken several of the Senate’s rules, regardless of what the court found, and the Senate is empowered to deal with those breaches as they see fit – not to mention, it was also about making sure that discipline was seen to be done, which was important for a body that was facing scandal and public outrage. This doesn’t mean that they went about it in the best way, however – the pressure (especially coming from PMO, which the Senate leadership at the time capitulated to) wanted to have these suspensions out of the way immediately, and so Duffy’s interventions were cut short, and Senator Pamela Wallin never got her chance to defend herself at all because of the haste. Due process was not necessarily followed, and yes, that’s a problem. However, that is not a problem that can be sorted by means of judicial review, because that would undermine the Senate’s ability to be self-governing (just like the Senate subjecting itself to external financial control like the Auditor General wants would undermine its privileges and ability to be self-governing).

It can’t be understated how damaging it will be if we let the courts start interfering in the operations of Parliament, in either the Commons or the Senate. The constant injunctions to legislation, the threats of lawsuits, the massive breach of the doctrine of separation of powers – it’s not something that we should mess with. Duffy may feel he was treated unfairly – and maybe he was to an extent – but it’s no reason to start pulling bricks out of the wall when it comes to privilege. And if the judge has any sense, she’ll respect that separation and take the Senate out of the lawsuit.

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Roundup: A diminishing work ethic?

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The Senate rose for the summer yesterday after the morning’s royal assent ceremony, which I find to be extremely curious given that they were scheduled to sit for another week and had a whole new batch of bills sent to them when the House rose on Wednesday. You would think that they would want to get started on them, and possibly even pass a few more of them before rising for the summer, but apparently not, and that does trouble me a little bit. We saw this happen at Christmas, and we’re seeing it again now, where the tradition that the Senate sits at least an extra week to get through the raft of bills sent to them by the Commons is being abrogated by Senate leadership that seems less interested in demonstrating that they’re doing the work that needs to be done when MPs take off.

Speaking of Senate leadership, our good friend, the Leader of the Government in the Senate – err, “government representative” sent out a press release yesterday that pat himself on the back for all of the changes to make the Senate more independent, which he equated with making better laws. Why? Well, 13 out of 51 bills in the current session of this parliament were successfully amended by the Senate, so that must mean it’s working! Well, maybe, but it ignores the context that the current prime minister is more willing to entertain some amendments, unlike the previous one. That gives room for the Senate to propose them, but the vast majority of the amendments that do get accepted tend to be technical rather than substantive ones. Not that it doesn’t happen – the government has backed down on a couple of occasions and accepted major amendments (like with the RCMP unionisation bill, which had a Supreme Court of Canada ruling to back up the amendments), but for the most part, the government has resisted substantive amendments to its legislation, so much that you have their new appointees like Senator Pratte openly questioning why the government bothered with creating its “independent Senate” if they’re not going to listen to what it has to say. Not that I’m suggesting that the government should accept every Senate amendment, but there are recent examples where they probably should have, such as with the impaired driving bill that passed this week. There was overwhelming evidence to show that this was almost certainly unconstitutional and would create havoc within the justice system, but the government refused to listen, and senators backed down and let the government reject their amendments rather than insist upon them in the face of such overwhelming testimony. If Harder were really concerned that the Senate was improving legislation, he might not have insisted that once the government rejected those amendments that the Senate back down rather than stand up for some constitutional principles, but he didn’t. Make of that what you will.

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Roundup: Judging Question Period the Toronto Star way

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The Toronto Star released a package of stories yesterday on Question Period, and because this is the way we do journalism these days, it was full of data analysis that looks shiny, and hey, they got some investigative reporters to count questions and responses. Absent from that? A hell of a lot of context. So while you got some backbenchers who don’t participate to gripe about it being scripted (which it is), and some counting up of the talking points (without any context as to why these developed), or a surface-level look at the political theatre of it all (again, absent a lot of context or history, or bigger-picture look at the ways in which the messaging has changed and how it is currently being used to gather social media clips). It’s inch-deep stuff that, for someone who covers QP every single day, is mighty disappointing. (Additional point – most of the writers of these pieces have not attended QP, which is a problem because watching it from your desk in Toronto is not the same thing as being there in person. At all).

What is the most disappointing of all, however, is their “Question Period fact check” piece, which takes a sampling of questions and answers, and assesses the veracity of the questions being posited and the responses. Why it’s a problem is because they fell into the problem of how questions are framed – surface truths that are stripped of context to say something that it doesn’t. An example is when the Conservatives railed that the PBO said that carbon taxes would take $10 billion out of the economy. Which isn’t actually what he said – he said that it would take $10 billion out of the economy if the revenues weren’t recycled through tax cuts or other measures but were just given directly back to taxpayers. That’s a whopping difference in the message, because using only the $10 billion figure is a disingenuous attack line. And what did the “fact checkers” rate it? “True!” even though it wasn’t actually. And the piece was full of problematic fact-checks like that, which makes it infuriating for someone who actually pays attention to what is being said and how. So while everyone pats themselves on the back for the piece, I’m really unimpressed with the package as a whole.

Equalisation reform

Saskatchewan Premier Scott Moe released his plan to reform equalisation yesterday and it’s…not equalisation. It’s like he doesn’t get the concept at all. Which at this point should not surprise anyone, because it’s been so badly reported on for decades and has been the tool of demagogues to bash Quebec rather than understanding how the system actually works – paid for by federal income tax out of general revenues to a province that doesn’t have the fiscal capacity to offer comparable services. It’s not one province writing a cheque to another one. For provinces that pay into it more than they get out, it’s because they have high incomes, thus they pay more income tax. It’s not that mysterious (and yet most reporters simply write “it’s complicated” and leave it at that). And Quebec has structural issues related to their fiscal capacity (and yes, their tax rates are already high relative to other provinces) but the per capita equalization they receive is actually low, not that the shock-and-awe figure of the total amount isn’t constantly being weaponized.

https://twitter.com/acoyne/status/1009498701151158272

And what does Moe suggest? Basically taking money from Quebec’s share and giving it to all provinces whether they need it or not. It’s bullshit that fortunately a number of economists called out – not that it’ll matter, because the audience that Moe is speaking to dismisses what economists have to say. Sigh.

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Roundup: Silence from Trudeau on child removals

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While all attention is glued to the horror show south of the border when it comes to child removals from migrant families, there is a lot of commentary around the conspicuous silence by this government, and from Trudeau in particular. While he said that he’s not going to “play politics” around this, some of his ministers have made comments to the effect that this policy is “simply unacceptable,” but Trudeau is largely mum. If anything, the government has taken a particularly defensive tone by talking about how much work they’ve done to reform immigration detention in this country, and to not separate children from their parents and only detain when necessary (and the record has improved, but it had some particularly dark spots in recent years, from suicides in detention to people being housed in provincial jails when there were no other immigration detention facilities available). There is an assumption that this is because he’s trying to “play nice” with Trump, but I’m not convinced about that.

If anything about the particular problem we’ve had with irregular border crossers over the past two years has shown, it’s that there is a narrative about how Trudeau’s #WelcomeToCanada tweet created the crisis. I’m not convinced that it did, but that’s the narrative. Given this crisis at the American borders, with migrants coming in from conflict zones in Central America, and with global refugee numbers at an all-time high, you can bet that Trudeau is doing his level best to be circumspect in all of his statements, not because of Trump, but rather to avoid another surge of migrants headed for our borders, and into a system that is already swamped (in no small part because they’ve been unable to make timely appointments to the IRB, and because it’s still under-resourced). Now, if Trudeau made sweeping condemnations about what’s happening in the US, that could be seen as another open invitation, which would stress our system even further. Add to that the calls from the NDP and others to suspend the Safe Third Country Agreement – a move that would immediately cause a massive rush for our ports of entry to claim asylum, again, swamping our already stressed system, beyond the diplomatic escalation that removing the “safe” designation from the US would cause. And the Trump administration may be fine with it, and do all it can to push more of their migrants to our borders and say “good riddance.” Regardless, I see Trudeau’s silence as an abundance of caution and trying not to create a larger border crisis than the one he’s currently dealing with, no matter the fact that what’s happening in the States is unconscionable.

https://twitter.com/StephanieCarvin/status/1009287591957581824

Meanwhile, as if to highlight Canada’s own record, there was testimony before the Senate Aboriginal People’s Committee about how child removals within Indigenous communities continues to erode them, given that currently child welfare workers are more likely to separate children from their families than get proper assistance for those families in crisis, and that the numbers today are akin to another residential schools system. So, yeah. We don’t have a clean record, and I’m sure this would quickly be thrown in the government’s face if they said anything.

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Roundup: Covering up non-existent data

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With the Conservatives still railing about the supposed Carbon Tax Cover-Up™ (yes, Pierre Poilievre is still trying to make fetch happen), their allies are trying to get in on the action. Jason Kenney tried, and Andrew Leach took him to task for it – and it’s some pretty crucial context because pretty much everything he and the Conservatives are saying is utter bunk. But they’ve set up the narrative that this document they’re demanding is some kind of smoking gun, because they’re building the narrative that this is all some cash grab by a government dire to pay for its spending (never mind that the revenues are going back to the province from which it was collected and not federal coffers, but the truth has never mattered here).

Later in the day, Lisa Raitt tweeted about how one gas station in her riding lowered its prices and there were line-ups around the block! People are struggling! Carbon taxes will devastate families! Again, Leach took her to task, especially the point that this is the whole point about carbon taxes – to change behaviours through price signals. You know, something a free market conservative should espouse (but Raitt is not a free market conservative, but a right-flavoured populist, and said as much during her leadership campaign).

Meanwhile, Andrew Coyne points out the fact that what the Conservatives are demanding is a mix of publicly available data combined with provincial implementation and offsets that nobody has yet, so the government can’t actually provide the data (as some of us have been saying for weeks now), while adding that there is more than a little hypocrisy for a party that keeps demanding disclosure but won’t offer any of their own when it comes to their own supposed plan. But hey, this is about politics and coming up with a scary number that won’t have any proper context or that makes assumptions that no behaviours will change, which misses the point. But, as I’ve said time and again, this isn’t about the truth. This is about the Conservatives building a scary straw man to go to war against, because that’s how they think they’ll win in 2019. And maybe it’ll work. Time will tell.

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Roundup: Accidental passage

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The spring sitting of Parliament is almost at its end, and it’s a bit of a race to see what is left to be passed – other than the cannabis bill, of course. It’s looking increasingly unlikely that the elections bill will clear the Commons, let alone even begin study in the Senate before they rise, and it’s just one of several agenda items that this government is having a hard time pushing through – not that the opposition has made any of this easy for them (not that it’s their job to), particularly as several sitting days have been lost to procedural shenanigans including the vote-a-thon tantrum last week. But down the hall in the Senate, there were a few quirky things that happened last week, in which both the budget implementation bill and the impaired driving bill got passed prematurely, entirely by accident.

As I understand it, according to my Senate sources, the intent was that the Conservatives had meant to ask for leave to deal with the report from the national finance committee on C-74, and then start third reading at the same time, but the Senator moving the motion got confused and inadvertently requested the vote for third reading happen immediately, and because everyone thought they were dealing with the report, they agreed. Oops. Several senators had been looking for amendments to C-74 at third reading – in one case, around trying to get propane and natural gas as legislated exemptions as farm fuels to the carbon tax backstop legislation included in the bill, but that didn’t happen. (Senator Robert Black later used the procedural manoeuvre of speaking in reply to the Speech from the Throne to get his concerns about C-74 on the record).

Likewise, with C-46, the impaired driving bill, the general disorganization in the Chamber had it passed on division (a particular kind of voice vote) rather than a standing vote, but that’s a bill that I suspect we’ll see pushback from in the Senate if the government insists on the clause on random alcohol screening, given the overwhelming weight of expert testimony against the provision, so any back-and-forth between the chambers will be around that, and you can guarantee that we’ll see the threats that making the Commons sit longer than Friday will cost so many thousands of dollars to Canadians, and wouldn’t that be just terrible, and we’ll all roll our eyes because the inherent cynicism that MPs shouldn’t sit longer to debate necessary legislation is a little bit offensive when you think about it for half a second. So will MPs be going home for the summer by Friday? I guess we’ll see who digs their heels in.

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