Tag Archives: Appointments

Roundup: Competing leaks

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And now we’re into competing leaks. In the Globe and Mail, we got another leak from a “mysterious” source that posited that Jody Wilson-Raybould was trying to elevate Justice Glenn Joyal to the Supreme Court of Canada because she apparently felt the LGBT community wouldn’t be receptive to presumptive heir Justice Richard Wagner (now the Chief Justice) for what I assume was a trumped up reading of his not inviting LGBT groups to present at the Supreme Court in the Trinity Western case (which is pretty absurd), and because she wanted Joyal’s successor at the Court of Queen’s Bench to be a Métis judge. In other words, it was trying to burnish Wilson-Raybould’s progressive credentials in light of the prior leaks attempting to make her look more of a social conservative (as though one didn’t need to look too hard at her record to see signs of it). Because hey, why not keep up leaks that damage the perceptions around Supreme Court of Canada appointments? Way to go, team! (And before anyone gets too self-righteous, don’t forget that in 2014, Stephen Harper leaked the six names he was considering when he named Justice Marc Nadon to the bench, and putting words in the mouths of the MPs who served on the “selection” committee at the time, knowing full well that they couldn’t respond).

And then come the denials. Wilson-Raybould and PMO each denied that they were the source of any of the leaks, and Wilson-Raybould (who submitted her additional materials to the justice committee on Tuesday afternoon) said there should be an investigation into who was leaking these Supreme Court deliberations. Lisa Raitt tried to insist that it should be the Federal Judicial Affairs Commissioner who should investigate, and he quickly wrote back with a giant nope, citing that he has no mandate to do any such investigations. Which leaves us with who for an investigation? The RCMP? Yet another demand for a public inquiry? Our very own Goolding Inquiry? Won’t that be fun?

And with all of this going on, in swoops Neil Macdonald to remind us that everyone in the media gets “used” by leakers all the time, and hey, the preponderance of leaks is a sign that journalists are doing their jobs because they are competing to do the best job. There is certainly a mercenary aspect to it all, not to mention some status-seeking, but I’m not sure he’s entirely wrong.

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Roundup: Clashes made apparent

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I think we’re reaching that point in the SNC-Lavalin/Wilson-Raybould Affair that we get breathless about non sequiturs that don’t actually add to the piece, while pundits circle the same point fruitlessly. To wit, the Globe and Mail released a story last night that cited that Jody Wilson-Raybould was trying to “depoliticise” judicial appointments and was butting against the PMO along the way. But reading the piece, I’m having a hard time finding where the scandal is here. Reforming the judicial appointment process was an early priority of Wilson-Raybould’s, and sure, plenty of people I spoke to at the time said that it was necessary, but it wasn’t handled well, took way too long to get up and running, and more to the point, it took Wilson-Raybould over eight months to appoint the judicial affairs advisor to run this system, while vacancies mounted. The Globe article spoke to said advisor, whom Wilson-Raybould wanted to be “apolitical” and sure, that’s fine, as with not looking to consider a potential judicial appointment’s political history as a factor – also fairly expected in this day and age where their political donation history is the first thing opposition research digs up when the appointment is announced. But the story starts to fall apart when they describe the “clashes” that Wilson-Raybould started having with PMO over the amount of information she was giving them when recommending candidates. Remember that these appointments are Governor-in-Council, meaning that the Governor General names them on the advice of the Prime Minister and Cabinet, meaning that Cabinet is politically responsible for them. If information is being withheld from them that could affect their own vetting process once the recommendation has been made, that should be a problem because they are being held to account for the decisions that get made in their name – not the Justice Minister alone. So yeah, it wouldn’t be a surprise if PMO got rankled by this kind of behaviour from Wilson-Raybould, and I’m not sure that this puts her in the kind of best light that the Globe seems to think. In fact, as is pointed out below, it adds to the reasons as to why she was shuffled in the first place.

https://twitter.com/adamgoldenberg/status/1099116598382669824

In other related news, here is a deeper exploration of the apparent conflict between Wilson-Raybould and Carolyn Bennett over the Indigenous rights framework legislation that has been derailed, and Michael Wernick’s comments on it during his committee testimony. It also sounds like the top staffers in the PMO had conversations with Wilson-Raybould’s chief of staff over the SNC-Lavalin file, but they insist they were perfectly appropriate.

For context, here’s a look at how SNC-Lavalin didn’t get everything they were looking for in the deferred prosecution agreement legislation, particularly because it requires admission of liability. (SNC-Lavalin, incidentally, says they’re tired of being a “pucks in a political hockey game” and will defend themselves in court). This thread by lawyer Adam Goldenberg puts nuance around the idea that the legislation forbids economic considerations from being a factor in whether or not to grant a DPA – particularly given that it’s the whole point of DPAs in the first place. University of Ottawa law school dean Adam Dodek explains why the practice of combining the minister of justice and attorney general is an impossible task for a single person to properly take on.

In punditry, there was a flurry of thinkpieces decrying the tone of Michael Wernick’s testimony, from Colby Cosh, David Akin, David Moscrop, and Stephen Maher – none of which I found convincing, but what the hell. On the other side, Christie Blatchford thought Wernick was fantastic, for what it’s worth. Chantal Hébert, meanwhile, tries to take a step back to evaluate if the Liberals will be able to put any of this behind them anytime soon.

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QP: Chagger has some new talking points

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Following an explosive morning at the justice committee, QP got underway without any of the major leaders in attendance. That left Lisa Raitt to lead off, asking if the prime minister asked David Lametti to leave the room when Wilson-Raybould addressed Cabinet on Tuesday. Lametti first accused Raitt of cherry-picking the testimony, and said that since Clerk of the Pricy Council, Michael Wernick, released him from Cabinet confidence he recused himself of his own volition. Raitt asked why Trudeau met with Wilson-Raybould after the Director of Public Prosecutions made a decision on SNC-Lavalin, to which Bardish Chagger read that it was confirmed verbally and in writing that Wilson-Raybould was not being directed on the file. Raitt went through the timeline, and accused Wernick of pressuring Wilson-Raybould, to which Chagger read out about Raitt’s own meetings with SNC-Lavalin. Alain Rayes took over and re-asked in French why Trudeau had the meeting with Wilson-Raybould, and Chagger read that they need to respect the independence of committees. Rayes tried again, and Chagger read out Wernick’s assurances that the kinds of discussions that Trudeau and Wilson-Raybould had were perfectly appropriate. Alexandre Boulerice led off for the NDP, and he demanded that Wilson-Raybould be allowed to speak, and Lametti assured him that the issue was complex but they too wanted to ensure she could speak. Boulerice asked if Trudeau’s meeting with Wilson-Raybould was to change her mind, and Chagger stood up to remind him that the NDP leader also met with SNC-Lavalin, and that the government respects the legal system. Nathan Cullen stood up to repeat the allegations in the Globe and Mail that Wilson-Raybould told Cabinet she was pressured, to which Chagger reminded him that committees are independent and should do their job. Cullen railed about the government not caring about employees and pensioners, to which Chagger praised the Ethics Commissioner and the government’s record.

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QP: Concern trolling about the media

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While the PM was off to Calgary to sell his fiscal update, Andrew Scheer was absent yet again. Alain Rayes led off, proclaiming that the government was racking up “record” deficits (not sure that’s correct), and demanded a plan for a balanced budget. Bill Morneau insisted that they did have a plan for growth and investment, and that the level of debt was the best in the G7. Rayes tried a second time, and got the same answer. Pierre Poilievre got up next, and said that the Morneau was trying to rewrite history from his deficit promises. Morneau got up and said that Poilievre was repeating buzz-words from first-year economic textbooks, while his government was getting results with growth. Poilievre then concern trolled that the government was buying off the press, to which Morneau said that journalism was vital democracy and they were trying to help the sector in a manner that was independent. Poilievre stated that the government thinks that journalists should shower then with praise, to which Morneau replied that it was insulting to think that journalists could be bought off. Guy Caron was up next for the NDP, decrying the tablet of back to work legislation for Canada Post, to which Morneau said that they tried to get a deal but the economy was starting to suffer. Caron railed that this was a gift not only to Canada Post but also EBay and Amazon, and Morneau responded with some pabulum about supporting small businesses. Karine Trudel and Irene Mathyssen further denounced the move on back-to-work legalisation, to which Patty Hajdu listed the ways they tried to get to a deal, and that the legislation may still give room for bargaining while getting the workers back to work.

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Roundup: Sexts and extortion

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Conservative MP Tony Clement has resigned from Conservative shadow cabinet and his parliamentary duties (but not from caucus) after he was victim to an attempted extortion after sharing “sexually explicit images and video” with someone.

https://twitter.com/StephanieCarvin/status/1059976854415659008

https://twitter.com/StephanieCarvin/status/1059982799095050240

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Some observations:

  • Clement is part of the National Security and Intelligence Committee of Parliamentarians, which is of the highest security classification. Being a target for blackmail on that is a Very Big Deal, and can’t be excused by those who don’t want to be involved in any kind of shaming for sexting. Clement apparently notified PCO about this a few days ago, so this is serious in how it affects his role with NSICOP, and now they will need to find a new member to fill that vacancy.
  • This is likely to get bigger. Already a number of women are coming forward over social media about his creepy behaviour on Instagram and this kind of thing has apparently happened before (sans extortion attempt).
  • The Conservatives can stop being so smug about the fact that they haven’t had to boot anyone from caucus for being sexually inappropriate. Clement is still in caucus for the moment, but we’ll see how this grows in the next few days.
  • Clement says that he’ll be “seeking treatment,” which is the really gross part here, because it employs the language of trying to medicalise sexual harassment or inappropriate behaviour. And when you try to medicalise it, you try to diminish personal responsibility – as this Tracey Ullman sketch so amply demonstrates.

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Roundup: Protecting parliament from court interference

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The decision in Mikisew Cree First Nation v. Canada (Governor General in Council) at the Supreme Court of Canada yesterday has been described in some cases as relieving the government of the Duty to Consult Indigenous communities when preparing legislation, but I think some of that misses the very real issue of the separation of powers and parliamentary privilege – particularly when the news channels would immediately trot out Indigenous lawyers to say that this was an infringement on the Duty to Consult, and that it was a “missed opportunity” to get legislation right, and so on. (And lo and behold, here’s Pam Palmater to argue just that, and I find her analysis flawed). In fact, the CBC piece on the decision buried the aspect about separation of powers at the very bottom of the piece, despite the fact that it’s at the heart of the ruling.

To recap, the separation of powers is the doctrine that the executive, legislative, and judicial branches have different roles and you shouldn’t have them meddling in one another’s business, which is exactly what the case was proposing to do – to allow the courts to weigh in on legislation before it’s been passed, or in this case, even been drafted. That’s a huge overreach by the courts, and a giant infringement on parliamentary supremacy. Why that’s especially important is because we’re seeing a growing movement of people who try turning to the courts when they lose at politics, which is very bad for democracy. (In fact, it appears that the Mikisew are engaging in a bit of that very thing here, objecting to the changes to the changes to environmental assessment legislation). If the Mikisew had their way, it would allow for the courts to weigh in on the legislative process at all points, which not only makes legislation impossible, but it means that parliament can no longer govern its own affairs, which is a very bad thing. Of course, there were many differences of opinion between the justices as to how this all shakes out, but they all agreed that the courts have no role in interference in the legislative process, and I don’t think that was highlighted nearly enough.

https://twitter.com/cmathen/status/1050384273394622464

https://twitter.com/PhilippeLagasse/status/1050384955954483200

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This being said, they did affirm that the Duty to Consult is still necessary – just that it didn’t need to be mandatory before drafting legislation. Smart governments who take the Duty seriously would do so in the planning stages of legislation, and there are opportunities to engage in consultation during the legislative process, particularly at committees, when amendments can be proposed that would assist with accommodation. Emmett Macfarlane also suspects that we could see the Senate take a more active role in ensuring proper consultation as it weighs in on bills as well, which could be an interesting evolution in the Senate’s activities as we move forward with its “new” characteristics.

https://twitter.com/EmmMacfarlane/status/1050391764069019649

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Meanwhile, Philippe Lagassé digs into Justice Brown’s reasoning around the Crown’s distinct capacities. Here is a thread from Emmett Macfarlane on his thoughts on the decision. And here’s University of Ottawa law school vice dean Carissima Mathen to explain the decision.

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Roundup: Keeping up with vacancies

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Of all the places where the current government seems to have lapsed in their basic competencies, the most obvious tends to be their appointments process, and most especially when it comes to making judicial appointments. I’ll grant you that it’s more difficult than it can seem, especially when you are not only balancing the need for new judges with specific skillsets and linguistic capabilities (because you do need a certain number of minority-language speaking judges in every province), before you get to the issues of diversity, and the laudable goals of getting more women and visible minorities on the bench. What has made it more difficult is a process that relies on application rather than nomination, and this continues to be an ongoing saga. And while the courts have been adapting in the post-Jordandecision landscape by ensuring that criminal trials are getting precedence, it means that civil trials are falling to the wayside, and that has its own set of problems.

The Star delves into this problem, with a particular focus on Toronto-area vacancies, where they are chronically behind the number of judges they should have, and where the number that just got appointed will be offset by retirements within weeks. (As an aside, there is a push to get the complement of judges in the GTA increased further, because the total number has been deemed to be insufficient by the local bar). And what is perhaps most disconcerting here is that the minister keeps insisting that there needs to be broader culture change in the court system, not just more judges (when seriously, they’re looking for a full complement to start). I’m not sure that anyone disputes that culture change needs to happen, but the appointments are a pretty low bar that a government should be able to meet. And yet.

This having been said, there is some talk now that we may see more frequent appointments being made as cabinet starts meeting more regularly as Parliament resumes, given that Cabinet needs to approve these names for appointment. So maybe that will happen. But given the pace at which these things have happened, you’ll forgive my skepticism.

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Roundup: Negotiating in good faith

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After another day of drama, there is no NAFTA deal, and talks have been suspended until Wednesday. And what drama there was, when off-the-record comments that Donald Trump made in an interview with Bloomberg were leaked to the Toronto Star, who published them, which showed Trump bragging that he wasn’t negotiating with Canada in good faith, and later in the day, he confirmed the remarks over Twitter with the note “at least Canada knows where I stand.” (Speculation now stands in that he deliberately leaked the comments). The revelation of the comments no doubt put a strain on the talks, but Chrystia Freeland later noted that she was negotiating with Robert Lighthizer, not Trump, and he was negotiating in good faith. So a little wedge in there, in any case. But in the end, Freeland insisted that we are close to a deal, so we’ll see once the long weekend is over and tempers cool a little.

https://twitter.com/InklessPW/status/1035582322668498944

Meanwhile, here’s a look at the issue of Chapter 19 – arbitration – that the Americans want scrapped even though it’s been as useful to them as it has been for us, so it’s a demand that makes no sense. Also, here are other things to look for when a deal is concluded, and what areas that we have made concessions on and what it means.

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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: Sore loserism and entrails

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If you had any money riding on who would be the first to whine that Thursday’s election result was a signal that we need electoral reform, and if you chose Elizabeth May, well, collect your winnings. I spent much of Friday responding to this nonsense, but I will reiterate a couple of points – that if you blame the system because your party did not do better, you’re already missing the point. We’ve seen it happen time and again that when a party has a message that resonates, it’s the non-voters who come out, not the committed party base, and we had increased turnout on Thursday night which meant that people were motivated to throw the bums out. Similarly with Trudeau in 2015 – a significant uptick in voter turnout because they had something that they wanted to vote for/throw the bums out. This matters, and whinging that the system isn’t fair is missing the point entirely. The system works. It needs to be allowed to function the way it was intended. What doesn’t help is using a false number like the popular vote in order to make it look like the system is unfair in order to justify your disappointment is the epitome or sore loserism.

https://twitter.com/MikePMoffatt/status/1005214910966452224

In terms of reading Thursday night’s entrails, here’s Paul Wells taking a detailed look at the three campaigns and how each succeeded and failed in their own ways. CBC has a look at how Ford’s use of simple and vague messaging made him look sensible to an angry population. Robert Hiltz looks at the ways in which the Liberals defeated themselves by their craven attempts to hold onto power. Nevertheless, Wynne’s surprise concession days before the election may actually have saved the seats the Liberals did win, according to exit polling done, so that particular strategic calculation may have actually paid off.

Jen Gerson wonders if Doug Ford’s win isn’t akin to a Monkey’s Paw curse – getting what you wish for at a terrible price. Andrew MacDougall wonders what Ford’s win means for modern conservatism given that Ford isn’t really a small-c conservative, nor were his outlandish promises. Similarly, Chris Selley looks at the phenomenon of Ford Nation, the Harper Conservatives that surround him, and the way that Andrew Scheer has suddenly attached himself to the cause. Andrew Coyne (once you get past the griping about the electoral system) warns politicians and pundits not to overread Thursday’s results (hey federal Conservatives and your crowing in QP on Friday – this especially means you), and further wonders if Ford will pull a “cupboard is bare” routine to keep carbon pricing to use the revenues. Jason Kirby mocks up what Ford’s first speech might look like, by referencing earlier speeches about bare cupboards.

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