Tag Archives: Brad Trost

Roundup: A wake-up call on court complacency

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The Senate’s legal and constitutional affairs committee released their report on judicial delays yesterday, and while I haven’t made it through the whole report yet, I will say that the highlights are pretty eye-opening.

While you may think that the issue of judicial vacancies is top of mind, it’s actually the culture of complacency that has infected the court system, with inefficient processes, poor case management, an unwillingness by some judges to take their peers to task for granting repeated adjournments, and the list goes on. Yes, judicial vacancies are in there, and this government has excelled in delays for all manner of appointments (witness the backlog of nominations for Officers of Parliament, for example). It’s part of what the Supreme Court of Canada was hoping to get at with the Jordan decision (and may refine that somewhat more with the upcoming decision on Friday), but it’s clear that a lot of processes need to change.

I know there has been some work done, and I’ve written a bit about things like the move to do more summary judgments in some cases rather than going to full trial, and it can work. I just wrote a story last week where it did, and the biggest delay in the case was getting an actual hearing date. But some of the bigger problems remain structural, with things like inadequate mental health services that wind up processing these people through the courts rather than getting them proper treatment, or not having culturally appropriate services for Indigenous offenders which would do more to address their concerns and keep them from recidivism rather than keeping them cycling through the system (or out of jail entirely). Things like legal aid funding are also important to the smooth operation of the system, but one has to wonder if it’s not just giving the court system more resources, but also better drafting laws so that we deal with crime in a better way rather than just trying to look tough on the issues.

Anyway, what I’ve read so far looks good and resonates with what I’ve heard in my own justice reporting, so maybe, just maybe, this government can take some of the recommendations seriously and not just thank them, promise to consult further, and put it on a shelf.

(Incidentally, Christie Blatchford, who covers a lot of trials, is full of praise for the report).

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Roundup: The looming retirement of the Chief Justice

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Chief Justice Beverley McLachlin announced yesterday that she would be retiring on December 15th, a few months in advance of her mandatory retirement date, in order to give the government enough time to find a suitable replacement. Why that date is significant is because it will be at the end of the Court’s fall sitting, letting her use the next six months that she is able to clear off the files from her desk and work on any outstanding judgments rather than depart mid-sitting and the organizational chaos that would follow.

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The next steps are now an important consideration. The government will not only have to name a new Chief Justice, but a new judge from Western Canada (and likely BC given that’s where McLachlin was appointed from). And in order to keep gender balance on the court it will likely have to be a woman, and in accordance with this government’s push for diversity, it will likely be a person of colour, if not someone Indigenous (and let us not forget that said person must also be fluently bilingual, which is another self-imposed criteria that this government has made for itself). This may be easier to find in BC than it was in Atlantic Canada, mind you. And for Chief Justice? My money is on Justice Richard Wagner, whom I know many close the court have already tapped as being the successor if they had their druthers.

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Of course, we’ll see if this government can get an appointment process back up and running within the six months. Experience has shown us that they seem to have difficulty with that, especially as there are still some sixty or so federally appointed judicial vacancies still remaining around the country, and a few of the Judicial Advisory Committees charged with finding candidates for said vacancies still not fully appointed either, which is a problem. Of course, they may be able to largely reconstitute the committee that oversaw the nomination of Justice Rowe, with Kim Campbell again in charge of the process, but I guess we’ll see how long that takes.

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For more reaction, here’s Emmett Macfarlane on As It Happens and in the Ottawa Citizen, and Carissima Mathen on Power Play.

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Roundup: Tracking the dissenters

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The CBC’s Éric Grenier has posted an analysis of free votes in the Commons in the current parliament, determining which party’s MPs dissent the most often. Part of this kind of analysis bothers me in part because it’s quantitative rather than qualitative, in part with how it was carried out. Rather than actually going through each vote to see a) what kind of vote it was, and b) the substance of the vote, he relied on the measure of how the cabinet voted to determine if it was a whipped vote or not, which is a poor measure, seeing as this would capture all manner of procedural votes (albeit, there haven’t been nearly as many in the current parliament as there were in the previous one). I’m not sure that there are any particular surprises in here in that the Liberals have been given a freer hand with their free votes, which was largely the case with the Conservatives in the previous parliament as well – having a majority usually lets a give their backbenchers a little added room to blow off a bit of steam when necessary. It’s also not unexpected in the fact that the Liberals are a party that doesn’t have a core ideology that they feel compelled to adhere to in the way that most Conservatives and the NDP most certainly do. It also shouldn’t be too much of a surprise that leadership candidates in the Conservatives are breaking ranks more often, given that they’re trying to put their own stamp on the party, so this is their latitude to start doing that. And as for the top “dissenting” voters, the top two are Liberals Nathaniel Erskine-Smith and Robert-Falcon Ouellette, who have a history of being a bit…naïve, if I may be blunt, in some of the positions they’ve taken to date. Erskine-Smith, if you recall, recently got pulled from a committee because his attempts to do more consensus-building wound up getting him manipulated by Tony Clement into voting against his own party’s interests when it came to amendments to a government bill, and Ouellette is often seen saying…not terribly thought-out things in the media. So, does it surprise me that they’re the two who voted against their party the most? No, not really. But Grenier doesn’t have any kind of context around this numbers, and that’s all he does – post numbers because he’s the numbers guy, which can be interesting in reporting, but it also only tells a fraction of the actual story, which is why stories like these do rub me the wrong way.

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Roundup: M-103’s ongoing morass

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Some of the nonsense around M-103 and the Conservatives’ competing supply day motion that “all lives matters” the Islamophobia debate, continues to churn, with the Peel Regional Police announcing that they have added patrols and additional protection to MP Iqra Khalid following the revelation of the level of threats and harassment that she’s received over tabling the motion – basically proving her own point about the problem of Islamophobia that needs to be addressed before we have a repeat of the Quebec City shooting. But adding to the morass is when one of her Liberal colleagues, Chandra Arya, said that what happened with the Quebec City shooting was a “direct result” of the kind of dog whistle politics that the Conservatives and the Parti Québécois have been engaging in, with talks of niqab bans and barbaric cultural practices tip lines. That, obviously, has yet more people up in arms over the whole debate – a debate which prompted a “protest” outside of a Toronto mosque yesterday where people demonstrated that they were totally concerned about the vague language of “Islamophobia” and were really concerned with free speech rights, as they held up signs calling for Muslims to be banned from Canada – once again, proving the whole point of M-103.

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Susan Delacourt contrasts the Conservatives’ two faces, cooperative on trade, but feeding demagoguery when it suits their needs. Paul Wells notes the Liberals’ ability to force Conservatives to deal with dilemmas like the one of M-103. Adam Radwanski chronicles the party’s collapsing big tent in the face of the rise in populist demagoguery. Andrew MacDougall warns the Conservatives about the dangers of peddling cynicism instead of building trust. Andrew Coyne writes about the importance of free speech and the problems with government-sponsored chills on it – which M-103 is not, by the way.

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Roundup: Let’s not efface Langevin

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A group of Indigenous MPs, along with the national chief of the Assembly of First Nations, are calling on the government to rename the Langevin Block – the building that houses the PMO – because it is named after one of the architects of residential schools. And while I understand and respect their feelings on the matter, I would like to add that I think this would be a mistake. Why? Because the average Canadian doesn’t know who Hector-Louis Langevin was, and what his role in residential schools was (let alone that he was a Father of Confederation), so to further efface his name is actually a disservice to the spirit of reconciliation, which they say that this is a part of. What I would suggest instead are additions to the plaque explaining the building and the name, and for signage inside the building, to remind the denizens about the consequences of actions that may be have been well-intentioned at the time. And we have no reason to think that Langevin himself was especially malevolent, but was merely a product of his time. There was all manner of racist policies by the government because that was how they understood the world to be. It’s also a question of who’s next after Langevin? Sir John A Macdonald? I think that we would all be better off to confront Langevin’s legacy and to spell it out to people that what a party does in government can echo for generations and be completely devastating. It would be a reminder for all time that deeds and misdeeds have consequences. And the PMO being confronted with that on a daily basis would seem to me to do more for reconciliation than simply effacing the name and giving it something trite like the “Reconciliation Building” (as Calgary renamed their Langevin Bridge). Let’s teach history – not bury it, which removing the name would be.

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Roundup: A small government climbdown

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Sometimes it’s not just that the Senate is everyone’s convenient punching bag in federal politics – it’s also what they like to dangle before the media to show that they’re serious about some issue or another. Early on in the parliament, it was Conservatives who were supposedly going to flex their muscles to defeat all kinds of government bills in the Senate, which never happened, and now we’re getting threats from the new independent cohort. This time, it’s Bill C-29, the government’s budget implementation act, and a provision therein that has Quebec all hot and bothered because it would affect their consumer protection legislation as it relates to the banks.

The government has maintained that because this is a federally-regulated sector that they have jurisdiction. Quebec disputes this, says that they have a Supreme Court of Canada decision to back up their position, and premier Couillard has been asking the government to remove this section from the bill, and impressing upon Senators to do something if the government won’t. New Quebec Senator André Pratte has apparently been making the rounds to do just that, while Government Leader in the Senate – err, “government representative” – Senator Peter Harder has responded with the usual plaintive wail that the Senate should respect the will of the House of Commons, never mind how much he was praising up and down the work they did on amending the assisted dying legislation just a few months ago.

But the pressure from the Senate may have already come to good effect. In Question Period of Friday, the finance minister’s parliamentary secretary, François-Philippe Champagne, announced a particular government climbdown on the issue:

We are going to continue working with consumer groups, stakeholders, and the provinces and territories to develop regulations and enforce the law. We are going to delay the implementation of some provisions of division 5 of the bill so that the Standing Senate Committee on Banking, Trade and Commerce can examine this important issue more closely.

In light of this development, should the Andrew Coynes of the world really be wailing and gnashing their teeth about the Senate supposedly overstepping their authority, or not respecting the will of the Commons? Or should we acknowledge that they heard the concerns that the government steamrolled over with their majority and forced the government to acknowledge that hey, maybe there is a problem that we should fix? Because I’m getting awfully tired of constantly hearing about how the Senate is somehow becoming this de facto ruling body of appointees, when it’s anything but. It’s doing the job that it was intended to do, which is sober second thought – particularly when there is a government with a majority, and with more independent senators in the chamber, they’re not taking orders from PMO to push things through. This is their job. This is what they’re supposed to do. Can we please tone down the histrionics about it?

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Roundup: Trying to help with attendance

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The Conservatives have become very preoccupied with Justin Trudeau’s attendance in Question Period of late, which is one of those particular political cudgels that annoys me on a couple of different levels. On the one hand, I’m annoyed at the PM for not taking it more seriously and showing up in order to be held to account, as our system of government demands; on the other hand, I get annoyed when the opposition plays cheap politics with this because they are just as guilty, with their own leaders having fairly poor attendance records to match. It’s especially precious that the Conservatives are so concerned about Trudeau’s attendance as Stephen Harper’s was abysmal, and by 2014, you were lucky if he might show up once a week. Might.

Huffington Post crunched the numbers and found that Trudeau has missed 58 percent of QPs within his first year, while Stephen Harper missed 46 percent in his first year. Mind you, that was his first year, and that thrice-weekly attendance fell off pretty quickly. Trudeau has had a fairly punishing international schedule, which is part of his job – but we’re seeing a number of instances, especially lately, where he is in town and not attending, or that he counter-programmes another event to take place at the same time as QP, which again annoys me because it shows that he’s not taking the responsibility of being held to account seriously. Sure, it’s great that you want to show kids that that coding is a good life lesson, but there are other hours in the day where that might be more appropriate, and not when you should be answering questions for your government’s actions.

But the petty politics that the opposition are playing around this are frustrating. Offering to move Question Period to 4:15 in the afternoon – or any other time to “help” the PM make it – is lunacy considering how disruptive it leaves the rhythms of operation on the Hill, with committee schedules where witnesses have flown in across the country, with the media’s ability to keep the production cycle of news shows. I’m not saying that this is a big deal, but I’m not sure that this is the way to address the problem of non-attendance, particularly when other leaders can hardly deign to make their own appearance most days.

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Roundup: The scourge of billionaires

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If you thought that the temptation to blame elites for everything was simply the crass tactics of Kellie Leitch – herself among the most elite of elites – then you’d be wrong. Yesterday Rona Ambrose decided to take a page from the very same playbook and rail in a speech open to media about how the Liberals were elites who were *gasp!* meeting with billionaires to talk about investment opportunities in Canada. OH NOES! The horror of it all! And not just billionaires – billionaires from Beijing and Dubai! Because it never hurts to get a bit of a protectionist/xenophobic twist to your moral panic. But then again, the Conservatives never could decide if they actually wanted to attract or shut down foreign investment, as they left rules deliberately vague so that they could indulge their protectionist, populist impulses when it suited their needs politically.

Part of what’s galling is the real lack of self-awareness that Ambrose is displaying in this kind of speech. While she’s trying to take a populist tack, her examples are all poor ones to prove her case about those darn elites being against ordinary working folks. Leaving aside that as MPs, they are the elites, the examples of things like cancelling the children’s fitness tax credit don’t even fit their rhetoric. Why? Because the Liberal not only replaced those myriad of tax credits with a broad-based income tax cut, but also with far more generous and untaxed child benefit payments, while those tax credits were non-refundable, meaning that they were generally inaccessible to low-income Canadians who needed them, but rather were far more beneficial to higher-income families who had the money to spend on the sports or arts or whatever to get the full benefit of said credits. In other words, trying to make a “regular families” argument in the “us versus the elites” narrative doesn’t stand up to logic or reality. The fact that they are willing to start indulging in this kind of rhetoric should be alarming, because the last thing we want to do is start trading in the politics of resentment like we’ve seen in the States. Only madness lies that way.

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Roundup: Unseen consequences and consolidating power

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In discussions around the Senate modernization report earlier this week came the question of fallout from Justin Trudeau’s decision to kick his senators out of national caucus, and how that spurred part of the reform discussion within the upper chamber (the interminable Duffy-and-company related expense issues being another of those triggers). While Paul Wells notes some of those consequences and how the decision was a good foretelling of Justin Trudeau’s management style, comments made by Senator Serge Joyal also caught my attention, particularly around the unintended consequences of the banishment.

One of the things about having senators in national caucus is that they have the benefit of being the institutional memory of parliament, because they’re there over the course of several parliaments and aren’t prone to a lot of turnover like the House of Commons is. That means they’re not always finding their feet like MPs are, or concerned about their own re-election, like MPs are, and they’ve also been there and done that with a lot of proposals that keep coming around. Kicking senators out of caucus is to forgo a lot of that knowledge and experience which is bad enough, but Joyal pointed to another problem, which is that it points to even greater centralisation of power by the leader’s office because there are no longer senators in the room to tell newbie MPs when they are or aren’t bound to follow leaders’ orders. And that’s actually a pretty salient point considering the context of Trudeau and the his own power consolidation.

By being chosen in the manner that he was – by “supporters” as opposed to caucus or even party membership, Trudeau is accountable to nobody, his selection base being so diffuse and nebulous that it could not be replicated. That allows him to argue that he has the “democratic legitimacy” to do what he wants, and demands that caucus fall into line as a result. One of his earliest actions was to kick out senators, while ostensibly about making the upper chamber “more independent,” which in a sense it will, but it also removes those voices from his caucus that can speak up about any way in which he may be inappropriately using his powers as leader. Add to that the way in which he and his team managed to push through changes to the party’s constitution that centralises policy-making into his office (under the rubric of being “more responsive” and “more modern”) and eliminated any regional power bases that could challenge his supremacy as leader, well, the picture starts getting all the more clear, that he has consolidated a very great amount of power at the expense of his party’s grassroots and caucus, more than any other party leader has in this country thus far, and that should be concerning to anyone who respects the particular accountability mechanisms inherent in the Westminster system. Joyal is right to make this point, but one suspects that few people are willing to listen, chalking his concerns up to the wounded feelings of being turfed. They’re not, and we should be paying attention to this consolidation of power.

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Roundup: The new Senate hurdles

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Just how MPs should deal with an increasingly independent – and assertive – Senate is the question posed by former MP Bryon Wilfert and his firm partner Paul Hillier, and it’s a question that I’m really not sure that Justin Trudeau adequate considered when he embarked on this path to modernization. While they note that no longer having senators in caucus limits the closed-door opportunity to hear and debate government proposals, I will state that they overplay the concern about the ability to whip those votes. There has never been any formal power to whip senators’ votes, but they relied primarily on sentimentality or affiliation, and sometimes senators went along, and sometimes they very much didn’t. That’s one of the reasons why there remains a bit of a taint around the post-2008 Harper appointees, because most of them came in being told that they could be whipped, and they behaved as though they could – up until fracture points around the contentious bill C-377, and then they rebelled against their Senate leadership (and it’s not a coincidence that Marjory LeBreton resigned as Government Leader shortly thereafter). They also point to the very real problem that with so many new MPs, and with the Liberal senators no longer in caucus, the personal relationships between parliamentarians that would normally exist no longer do, and that does start to exacerbate the problem of driving legislation through the Senate.

Where I see their proposed solution as being problematic is the suggestion that committee chairs be the new agents to set the legislative pace and of trying to build consensus. Why I think this is a problem is that the point of committees is to hold the government to account, which is why ministers are so frequently called to appear before them. If the chair is acting as the agent of the government, rather than of the committee itself, it creates something of a conflict in their roles. As well, many of the committee chairs are from the Conservatives (not that the Senate Liberals are the same party as the government, but there is an assumption of greater sympathy despite the fact that the relationship has been pretty testy to date). Trying to co-opt those chairs into being government agents to drive consensus would seem to be antithetical to the purposes of having an opposition, and its accountability functions. It also puts those chairs in the awkward position of having stakeholder groups trying to court them in order to get their support in rounding up senators to support the bills – groups that would also want to come before committee to plead their cases when the bills get to said committees, which again presents a bit of a conflict. If anything, I do think this highlights the value of having caucuses for organisational purposes, and arranging these meetings – and yes, the Independent Senators Group could possibly host these same kinds of stakeholder discussions without trying to come to an internal consensus, allowing their members to make their own minds up (and to date, they have operated on a rule that anyone trying to get support does so outside of their meeting room). It will continue to take getting used to, but it will continue to take some serious thought about what roles we’re asking people to take on within the chamber in order to get bills passed.

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