Roundup: Judicial review and missing nuance

There was a development regarding a First Nations court challenge, which I’ll discuss in a moment, but first up, the campaign news. Jagmeet Singh was in Saskatoon to essentially re-announce his plans to “immediately” implement dental care – again, omitting that it’s provincial jurisdiction and he has no way of forcing provinces to do the heavy lifting – before he headed to Thunder Bay.

Justin Trudeau didn’t announce anything but met with voters at a restaurant in Quebec City, followed by a media availability where he assured everyone that his views have evolved from when, in 2011, he said he was personally against abortion but was pro-choice. He says he’s now totally pro-choice because his previous stance didn’t really make any sense – something he probably felt he needed to make clear when it was remarked that his position and Scheer’s were very similar in personally opposing abortion. Later on, he was at a tree planting with a candidate in Saint-Anaclet, Quebec, where he addressed the lawsuit issue (and again, more on that in a moment).

Andrew Scheer was in Etobicoke, where he re-announced the party’s platform as regards gun control and gangs – and much like his foreign aid announcement, this one was also based on a series of lies about bail and sentencing. More to the point, Scheer pledged more mandatory minimum sentences – which the courts keep striking down – and pledging to fight for them in court tooth and nail, so he wants to spend millions of taxpayer dollars to fight for unconstitutional laws for the sake of symbolism, apparently. But this was overshowed by yet more questions about his dual-citizenship, including his need to file US taxes, and being registered for “selective service,” meaning the draft.

But back to the court challenge, which was news that the government had applied to the Federal Court for judicial review of the Canadian Human Rights Tribunal decision that would award compensation to every First Nations child who had been apprehended by child and family services. Immediately there was a hue and cry, and plenty of outrage (some of it performative), and a lot of hot takes from journalists who failed to understand the nuances in legal stories. And while I’m not a lawyer, I have been on the law beat for several years now, and I can say that oftentimes, these kinds of appeals are made on technical grounds because in the law, precise wording matters, particularly when one is concerned about the precedents it sets. Both Seamus O’Regan and Trudeau did address this in the media saying that they agree that the government failed these children and that they are owed compensation, but they need time to determine how to do it right, but they can’t do that during a writ period (which is appropriate, given the Caretaker convention, especially as this is worth billions of dollars). Ah, but these clever reporters said, the documents say that they are opposed to the compensation award. Now, I haven’t had a chance to read the application because it’s not online, but the CBC describes it thusly:

The application says Canada acknowledges the finding of systematic discrimination and does not oppose the general principle of compensating First Nations individuals affected by a discriminatory funding model — but it argues awarding compensation to individuals in this claim is inconsistent with the nature of the complaint, the evidence, past jurisprudence and the Canadian Human Rights Act.

Now, there are clues in here as to what the government is arguing, primarily that the Tribunal exceeded its authority to make this kind of compensation order based on the kind of human rights complaint that was brought before it, including exceeding their statutory authority. So that’s not a small thing if that’s the case. And it’s a hell of a lot of nuance in the story that deserves to be explained. Any government is going to be concerned if a Tribunal exceeds its authority to make these kinds of orders, because that will impact future cases with future governments – no matter that they feel this case is deserving of compensation. But this very important detail has been completely glossed over in the search for outrage takes, which means that the reporting is doing a disservice to all parties involved.

Other election stories:

  • A Liberal candidate in Cape Breton is apologising for sexist and racists comments on social media from 2012 and 2013.
  • Jason Kenney is now on the campaign trail for the Conservatives, starting in Ottawa yesterday and heading to the GTA over the weekend.
  • The Conservatives have dumped one of their candidates in Burnaby over deeply homophobic comments (but they knew about them before now).
  • The CBC’s fact-checkers evaluate Singh’s claims that the New NAFTA will drive up pharmaceutical prices.
  • The National Post checks in on the NDP’s attempt to hold their seats in BC’s lower mainland while the Liberals look to encroach.
  • The Green Party is hoping to make gains in New Brunswick.

Good reads:

  • Here’s a look at the role that class plays in elections – particularly Canadian ones – where the mantra is always about the Middle Class™.
  • Here’s a recounting of the Supreme Court of Canada’s trip to Winnipeg to hear a pair of cases there, and engage with the community there.
  • CBC’s investigative unit shows the story of voter kiosks being fraudulently used in the UCP leadership – featuring Tim Uppal, who is running against Amarjeet Sohi.
  • Aaron Wherry notes that Scheer’s constant evasiveness around abortion, same-sex marriage, and now his dual citizenship, clash with his need to define himself.
  • Andrew Coyne posits that one can’t lead a country while holding the citizenship – and the accompanying obligations – of another.
  • Chantal Hébert looks at the ground battle in BC, which is going to be crucial for either the Liberals or Conservatives, and where the NDP/Green battles matter most.
  • Kevin Carmichael laments the political focus on first-time homebuyers (with solutions that only make things worse), rather than on problems like productivity.
  • Colby Cosh is bemused by the fact that tales of cannabis-related doom – dooooooooom! – continue after an uneventful year of legalisation.
  • My weekend column wonders if there isn’t a structural reason why this election – more than others – is so aimless.

Odds and ends:

For the CBA’s National Magazine, I preview the hearing at the Supreme Court next week over the federal genetic privacy legislation.

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2 thoughts on “Roundup: Judicial review and missing nuance

  1. I don’t like fixed election dates, since they take a lot of the fun out of politics. But I don’t think this election is “listless”. Not that I’ve been enjoying it. I do think the media has a share in that perception, though, and maybe that is partly due to the scrambling for clicks. And maybe many journalists just don’t generally have the depth of knowledge that allows them to accurately report on things like the decision to file for a judicial review of the compensation decision.

    Some of the voices that are loudest — and mainstream — pose downright fictional, or at least arguable, scenarios.(Such as Don Martin suggesting Andrew Scheer had the election in the bag until recently. That’s news to me.) The shallow understanding of climate policy demonstrated by many columnists, damning the Liberals as similar to the Conservatives, is just irresponsible.

    This is a very important election. And while I agree that the Liberals don’t communicate very well, I don’t see why journalists should seize that ball and run away with it into tangents and distractions. Especially when more in-depth reports could be hiding behind paywalls (though maybe not). I think it’s pretty shabby for writers like Paul Wells, for instance, to complain about how meaningless and dark it all is. It’s like the line in Cold Mountain about, they make the clouds that rain on us, and then say, hey, it’s raining.

  2. I’m not sure that fixed election dates have anything to do with what I agree is a thoroughly disheartening election campaign.

    Rather, I suspect we are at the culmination of the many ills that affect our democratic system, onto which has been layered the powerful Internet mobs which essentially dictate who can be a candidate and what the topics of conversation can be.

    Is there any doubt, for instance, that if the blackface culprit had been any one other than Mr. Trudeau, he would have been bounced in a thrice as a candidate for the supposed sin of “racism”.

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