Tag Archives: The Senate

Roundup: Amendments are not some power grab

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After hours of debate, the Senate passed the first amendment to the assisted dying legislation to remove the definition “reasonably foreseeable death” and replace it with the language from the Supreme Court’s decision in Carter, and immediately the pundit class erupted in cries of horror and outrage that how dare an unelected body dare to touch the precious words of the elected House of Commons, and that this newly emboldened Senate was dangerously overstepping its bounds going forward.

Oh. Please.

It’s like any hint of context went out the window when it comes to this particular bill, and the fact that you have a Supreme Court of Canada decision that it’s supposed to be in answer to (not that parliament needed to draft a law, mind you). There are serious concerns about the constitutionality of this bill. MPs in the Commons believed it, you have a lower court judge in Alberta that believed so when crafting a judgment around an assisted death request and how the state of this legislation wouldn’t conform to the Supreme Court decision, and now Senators are doing their constitutional duty of weighing the constitutionality of a piece of legislation, and quite rightly, they find it wanting. This is why the Senate exists, and what the “sober” part of “sober second thought” means – that freed from the constraints of having to worry about what voters will think, they can take a more clear-headed look at these controversial bills. And if you get hung up on the “unelected” part, apparently the policy and legislative roles taken not only by the Supreme Court or the various administrative tribunals that exist in this country also should keep you awake at night. (Also, their democratic legitimacy comes from being appointed by a government who has the confidence of the chamber, but you know, it’s not like Responsible Government is anything other than a minor detail).

https://twitter.com/emmmacfarlane/status/740737440231641088

https://twitter.com/emmmacfarlane/status/740743223396683776

So what happens next? Once the remainder of the amendments are decided upon one way or the other, the report gets sent back to the Commons, which they will then debate and amend at their pleasure – you know, like democratically elected legislators are supposed to do. The Justice Minister doesn’t sound keen on these amendments “without more safeguards,” but I also take this with a grain of salt because I do believe the government is setting up this narrative of reluctance so that they can show that they have been “forced” to accept what the Supreme Court has laid out by a Senate that could veto the bill if they find it unconstitutional. Because remember, MPs who have electoral considerations don’t like to be seen to take bold steps with difficult decisions when it’s easier to hide behind another body who can take the blame for them. And it’s not like MPs aren’t used to giving abdicating all manner of their roles to other unelected bodies (the courts, Officers of Parliament, and the Senate), this just being one more in a long line of examples. It’s one more reason why I find this concern trolling by the pundit class all the more difficult to swallow. If MPs were actually serious about their jobs, then it wouldn’t be incumbent upon the Senate to be the grown-ups of parliament, and yet here we are.

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Roundup: Further conversations on constitutional conventions

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In response to my blog post yesterday on the our unwritten portions of our constitution being just as important as the written parts, I had a lot of response over the Twitter Machine, many trying to argue that parties were not an integral part of the system, but historian Christopher Moore took the time out to chastise me for the use of the term “constitutional conventions” when it comes to Responsible Government. But the problem is that Moore is actually wrong in what he tried to argue. To wit:

Smith should look at Section 54 of the Constitution Act, 1982, which sets out in plain language that only the cabinet can make and propose the raising and spending of money. That is what defines the role of the cabinet of ministers. It budgets; it plans the getting and spending.  But then there is Section 53, which bluntly states that only the House of Commons can give approval to the cabinet’s proposals for getting and spending.

A few problems with this. First of all, he’s citing the Constitution Act, 1867 and not 1982, and looking at Section 54, there is no mention of cabinet at all:

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.

As is consistent in our constitution, there is no mention of a PM, or cabinet, because they are part of Responsible Government, which as I pointed out yesterday are part of the unwritten conventions that we inherited from the UK. As is consistent with the rest of the written constitution, only the Governor General is mentioned. And here’s the kicker: the unwritten constitutional convention is that under Responsible Government, the Crown – by way of the GG – acts on the advice of ministers, and for that to happen, ministers must hold the confidence of the Chamber. Ministers via the convention do all executive government in the Queen’s name. It’s not written because it’s a convention, per the preamble, as a constitution being similar in principle to that of the UK. Moore’s contention that it’s not a convention and that it’s embedded in the text does not hold. So while I’m happy to be corrected when I get it wrong (and it happens), this is not one of those times. Also, if you’re going to quote the constitution at me, then quote the constitution. And as for those people on the Twitter Machine insisting that Responsible Government can function without parties, well, it’s possible in a theoretical world with vampires and unicorns, but it will never happen in real life, so trying to disprove it to make a point is pretty much moot. The practice of parties developed for a reason. Maintaining confidence without them is a fool’s errand.

With many thanks to Philippe Lagassé for talking this issue through with me.

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Senate QP: Third time’s the charm

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Twice before, the Senate has invited Small Business and Tourism Minister Bardish Chagger to attend Senate Question Period, and in each of those attempts, scheduling on either side scotched the attempt. This time it finally happened, even as votes in the Commons went a bit overtime.

Senator Carignan led off, as he often does, and asked a fairly standard question about the small business tax rate. Charger, used to this question, gave her standard reply about how the government was looking to put more money into people’s pockets, and how that would benefit the revenues of these small businesses.

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Roundup: Monarchial stability

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In an interview with CTV’s Question Period about his upcoming trip to the Queen’s official 90th birthday celebrations in London, His Excellency the Governor General credited the monarchy with holding Canada together, and noted that constitutional monarchies are among the most stable of all forms of government – and he’s right. Predictably, however, the republicans among us got right offended, saying that Canadians deserve some of the credit, and it was simplistic, patronising and wrong to say that Canada would “disintegrate without a London-based, hereditary Head of State.” The problem with this line of reasoning is that it ignores some of the counterfactuals, and what we see in countries where heads of state are elected and who are largely partisan in nature. The stability of those countries is indeed an issue in many cases, and social progress is generally further behind than most constitutional monarchies, which have a demonstrated tendency not to be as conservative or reactionary as one might think given the importance of maintaining those traditions. But the most important reason why constitutional monarchies like Canada’s tend to be more uniting is that they don’t rely on a partisan head of state to be the uniting figure around which all of the pomp and circumstances happens, and you don’t have people going “he’s not my president” and so on. It’s not the partisan head of state’s face on postage stamps and in embassies, or who receives military salutes. Ours is a system designed to keep leaders from developing cults of personality and keeps their ambitions in check because they do not hold power – they merely exercise it on behalf of the one who does (that being the monarch). It’s also why it’s concerning that our prime ministers in this country have been getting presidential envy, and why this “First Lady” business around Sophie Grégoire Trudeau is a problem because it goes against our particular constitutional monarchical order. Having someone be above the political fray has benefitted our society and our culture, and it can’t be easily dismissed as being simple or patronising. Systems help to shape societies, and our system has shaped ours for the better. We can’t simply ignore it out of some childish sense of spite about how and why that system works the way it does.

His Excellency also noted that Trudeau’s children help bring Rideau Hall “alive,” and he reminded us that his own children used to play with Pierre Trudeau’s children when they were the same age, living in Montreal nearby one another.

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Roundup: Adjourning until Tuesday is not a problem

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Expect a weekend full of concern trolling about the Senate not having passed C-14 before Monday’s Supreme Court-imposed deadline, and people shaking their head or clutching their pearls that the Senate chamber is not sitting on Monday. I fully expect a pundit or three to wonder aloud why the Senate isn’t sitting Monday, and demands that senators do their jobs like they’re paid to do. And if you hear anyone say something boneheaded like that, smack them upside the head and remind them that the bill is at committee, which will be sitting Monday and Tuesday, and there’s no point in the full Senate sitting on Monday to pass the bill when it’s at committee, and no, they’re not going to rush that process any more than they already are. Meanwhile, if there’s anyone to blame for it not passing on time, it’s the House of Commons, and the Liberals playing stupid games with the debate schedule and not bringing forward the bill for debate so that votes could happen more expeditiously (and yes, their attempts to control that debate calendar with tactics like Motion 6 failed spectacularly before our eyes, but that doesn’t explain why they didn’t bring the bill forward on subsequent days either). If people think that the Senate should just rubber-stamp a bill like this one without any actual debate or scrutiny, well, they need to take a remedial civics course because that’s not why the Senate exists. And yes, this is exactly the kind of situation for why we have the Senate, where a bill that is constitutionally dubious is going to get a more thorough hearing than it did in the Commons, and we are likely to see some more substantive debate on its merits and particularities so that even if it does pass in its dubious state, there is a parliamentary record that the courts can then use in their deliberations when the matter inevitably comes before them.

Add to that, this is a case where we are likely to see amendments that will head back to the House of Commons, which put the whole timetable into question. Part of what is going to be at issue is where the votes will lie in the Senate for which amendments – the ones from the more socially conservative who want greater restrictions, or those who want to see at minimum the “reasonably foreseeable death” criteria struck out in favour of the language in the Carter decision. I suspect the latter will have the more votes and we will see those amendments head to the Commons, where we will see if the government decides to dig in its heels or not given that it’s a criticism that has fairly broad support in the Commons about the bill. It also gives the government a bit more political cover in that the Senate is “forcing” them to adopt those measures – particularly that the Senate is much more independent and the Liberals have given up any levers therein to try and bully through bills – so they can insulate themselves from criticism that they have gone too far. I have a sneaking suspicion that it’s why the ministers keep insisting that they are open to amendments when they rejected them all in the Commons – because putting the blame on the Senate is the next best thing to putting the blame on the courts. If they do decide to dig in their heels and we reach an impasse between the chambers, there is always the possibility of a conference between them, which Kady O’Malley has dug up the procedural details for here:

If you missed the second reading debates in the Senate, they’re available here, and they are absolutely substantive and far beyond anything we heard in the House of Commons, and dealt with the real substance of the bill rather than the usual “This is deeply personal/what about palliative care?/conscience rights, conscience rights, conscience rights” narrative that we heard ad nauseum.

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Roundup: Another day talking in circles

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We’re in for yet another round of wailing and gnashing of teeth on the subject of the electoral reform process, and this time it’s from the NDP who are moving a supply day motion to try and get the proposed parliamentary committee to reflect their particular gamed composition rather than a composition that reflects the House of Commons – which, I will remind you, was elected entirely fairly and correctly under how our system is supposed to operate, where we elect individual seats in separate and simultaneous elections. Demands that the committee should reflect the popular vote ignore the facts that a) the popular vote is a logical fallacy that does not actually exist since there were 338 separate elections and not just one, and b) the composition that the NDP are demanding is not actually proportional to the “popular vote,” as they are giving the Bloc and the Green Party an oversized share of the seats and votes. And rather than just thirty minutes of this endless repetition as we might hear in QP, no, it will be the whole day in the Commons, minus one hour for private members’ business. And we’ll be subjected to the sanctimonious speeches of the NDP (of which they will read the same speech in English and French ad nauseum, only changing the riding names mentioned), followed by baying from the Conservatives that what we really need is a referendum, and the odd interjection from Elizabeth May that she deserves a vote on the committee and that no, we don’t need a referendum because it’s not a constitutional issue (except that certain kinds of electoral reform are actually constitutional issues, albeit likely with the simplest amending formula). And then there are the Liberals, where we’ll get some of the usual saccharine from Maryam Monsef, some sharper rebukes from Mark Holland, and the odd backbencher repeating the talking points about Canadians demanding a change to the system. There won’t be any substantive issues discussed, and while I will be the first to say that yes, process is important, so long as each side tries to game the process to fit their own purposes, we’ll just keep talking in circles and go nowhere. Which, really, is where this discussion should go and we should instead invest in a programme of civic literacy instead so that people can actually learn how the system works. But in the absence of that, I’m ready to declare that we should nuke the whole thing from orbit.

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Roundup: An affidavit in error?

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Another interesting twist has emerged in the saga of the satellite offices, and the quixotic quest to have the Board of Internal Economy decision challenged in Federal Court. While the NDP crowed that the court accepting their “expert opinion” affidavit, it seems that the legal opinion given to the Board is that this is a Very Bad Thing that needs to be challenged, because allegedly this sets up some kind of terrible precedent. As well, because the acceptance of the affidavit was by a court official and not a judge – meaning probably a prothonotary – this is also somehow significant and material to the challenge. I’m certainly not an expert in civil procedure, and welcome the comments of those who are, but my own particular reading of this is that this is apparently something that should have been laughed out of court right off the start, rather than allowing a judge to actually get the affidavit, read it through, and then telling the NDP to go and drop on their collective heads in a scathing judgment because there is such a thing as parliamentary privilege and it’s an important concept that parliamentarians govern their own affairs. Which of course may explain why the NDP were so giddy as to alert the media that their affidavit was not laughed out of the room in the first place, even though I will remind you that having an affidavit accepted is a far cry from actual victory. Mind you, I do think that this is an issue of parliamentary privilege (for which I explained the reasons here), so perhaps the Commons’ legal advice is worth noting that it means that the affidavit should have been refused after all. But like I said, I’m not an expert in civil procedure, so I await responses from those in the know.

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Senate QP: Grilling the revenue minister

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After a couple of aborted attempts to hear from the minister for small business that never got off the ground, the Senate heard instead today from the minister for national revenue, Diane Lebouthillier. Senator Claude Carignan led off, asking about the “amnesty” granted to KPMG for setting up tax havens. Lebouthillier insisted that the CRA does not use the term amnesty, and that they are are working against tax evasion and tax avoidance. Carignan wondered if the “special offer” could apply to other firms who could ask for the same arrangement for their own clients. Lebouthillier noted the billions recovered last year and noted the study done into the operations of KPMG and that the CRA operated within its rules.

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Roundup: A stake through the grassroots

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Congratulations Liberals, you have once again made things awful for the proper functioning on Canadian democracy, as you so often do. In fact, most of our democratic ills in this country can be traced directly back to Liberal “innovations,” like delegated leadership conventions, which removed caucus accountability of the party leader, to the “supporter class” of leadership selection – removing any and all accountability the leader had – and now you’ve decided to eliminate party memberships to further erode what accountability was left in the party system so that all of the remaining power can be centralised in the leader’s office and Big Data can be used to justify any and all policy decisions rather than allowing them to come from the grassroots. Well done! Oh, but no need to worry – Justin Trudeau totally promised that this wasn’t about centralizing power and taking it away from the grassroots (just the regional power brokers, natch), so no need to worry! Absent from that assurance was anything about accountability, which isn’t surprising given the way the history of these attempts to “democratize” things happen in this country. I’m not saying that the party didn’t need to update its various constitutions into a single body. That’s fine. But memberships are actually an important thing for the role of a political party in our democratic system. And while I get that the “supporter” category during the leadership was instrumental in populating the database that they’re so very proud of for their new digital future, it doesn’t erase the role that grassroots members play. While the Liberals are trying to “deconstruct” what a political party is and turn it into a “movement,” it can’t escape that political parties are not just “private clubs,” as the rhetoric around the new constitution has been trying to paint them as (and indeed, rhetoric used going back to the introduction of the “supporter” category during the leadership). And beyond just offering organizational structure within Parliament (which is in itself a Very Big Deal), parties have an interlocutory role to play between the parliamentary caucus and the public at large. It’s why people are supposed to be joining parties – to provide bottom-up ideas and policies, to nominate candidates, and in return, the riding associations act as interfaces to bring local concerns to caucus if there is no local representative. But we’re not taught about the importance of joining riding associations in school, and when the grassroots has weak structures and little power, then it only empowers the apparatchiks in Ottawa at the centre of the party. I fail to see how Trudeau’s new “movement” is going to empower the grassroots when riding associations will be hollowed out in favour of “streamlining” policy proposals via Big Data. The social and community aspects of riding associations are gone because there is no longer anything there for them to do, other than organise nominations every few years. And not only does it weaken the grassroots, it further diminishes the power of MPs (as Peter Lowen writes here) because that power gets centralized in the leader’s office – just as the power of MPs started being eroded when we took away their ability to select and remove leaders. But because we’re not being taught civic literacy, we’re not learning these lessons, and power continues to be centralized. Trudeau has consolidated a great deal of power now, owing to his popularity, and he is accountable to nobody, and the party structures that would place any kind of check on that power are now gone. I don’t see this as a great day for the Liberal party, but one that harkens worse things to come for our country’s political system as a whole.

https://twitter.com/aaronwherry/status/736672242864656385

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Roundup: The problem with sponsoring bills

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News that the “Government Representative” in the Senate, Senator Peter Harder, has been asking unaligned senators to sponsor government bills as they arrive from the Commons has me feeling a bit uneasy, and I’m trying to figure out why. This meant a trip through the Senate Procedure in Practice, and I find my concerns only slightly mollified. I will admit that the government’s plan to move a government bill in the Senate – Bill S-2, which deals with motor vehicle recalls – also has me uneasy because while it is being sponsored under Harder’s name, the fact that Harder is not a cabinet minister remains a troubling procedural issue. Government bills should be introduced by cabinet ministers, whether that minister is the Leader of the Government in the Senate or another minister in the Senate (which happens on occasion), and Harder, while sworn into the Privy Council, is not a minister. That the Conservatives did this with Claude Carignan was not a particularly good precedent to create or follow, since Carignan was essentially a minister without being in cabinet for the only reason that Stephen Harper was having a fit of pique over the ClusterDuff Affair, Carignan also having been sworn into Privy Council and being given access to PCO resources to do his job. But while Carignan was at least a part of the government’s caucus, Peter Harder explicitly is not, which is why this decision to have him sponsor government legislation is troubling. I remain of the view that as much as Harder is trying to present himself as non-partisan and independent, you cannot be independent while also representing the government because it is an inherent conflict of interest. That he is being asked to perform the functions of a cabinet minister while still proclaiming himself to be independent is risible. It is a problem that Justin Trudeau’s particular…naivety around his Senate reform project cannot simply gloss over without eroding the fundamental tenets of our Westminster system. That he wants a more independent Senate is not a bad thing, and the appointment of a critical mass of unaligned senators is a laudable goal, but you cannot expect someone who is not a minister to do the functions of a minister and still call themselves independent. As for Harder asking unaligned senators to sponsor bills, it’s not quite as outré as having Harder sponsor government bills that are initiated in the Senate, but I am still uncomfortable as this is typically something done by a member of the government’s party, given that the sponsor’s job is to defend the bill and advocate for its passage. While I don’t buy that every new appointed unaligned senator is really a crypto-Liberal, as many a Conservative senators would have you believe, the fact that Harder is the one doing the asking is still uncomfortable. It would perhaps be better if he were to call for volunteers to sponsor bills on their way from the Commons and then perform a coordinating role rather than an assigning one, if only for the sake of optics. Harder calling up unaligned senators and asking them to act as sponsors looks too much like he is playing caucus management, and if he continues to insist that it’s not the way that the chamber is operating, then perhaps he needs to be more conscious of the optics of the way he is operating.

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