Tag Archives: Chief Electoral Officer

Roundup: No, fixed election dates don’t give the GG unconstitutional powers

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The “debate,” if you can call it such, over Jagmeet Singh’s decision to undermine Her Excellency Mary Simon by publicly writing her and telling her to refuse the advice of the prime minister who commands the confidence of the Chamber just got more ridiculous, as Andrew Coyne decided to weigh in yesterday (and no, I’m not going to link because hate clicks are still clicks). Coyne contends that the fixed election date law empowers the GG to turn down such a request, and “proves” it by quoting testimony from former justice minister Rob Nicholson at the Senate committee.

No. Just…no.

The logic in Coyne’s argument can’t hold because the Governor General’s role in accepting the advice of the prime minister who enjoys the confidence of the Chamber is the very basis of our constitutional framework under Responsible Government. The only discretion she might have over dissolution is when a request is made shortly after an election – that’s it. Nothing a simple statute, like the fixed election date law, can change a constitutional element, and there is jurisprudence to back this up, particularly the doomed attempts at trying to get the courts to uphold the fixed election date legislation, which they dismissed (including the Supreme Court of Canada). Fixed election date legislation is an empty shell – a bit of theatre and attempt to Americanise our system, and is antithetical to how Westminster systems operate – it shouldn’t be on our books as a result. There is no way that it could empower the GG to do away with constitutional norms to refuse dissolution, and if she did refuse, the prime minister would be obligated to resign, and we’d be in an election regardless. It’s ridiculous and wrong to suggest otherwise.

https://twitter.com/EmmMacfarlane/status/1422914814494584833

https://twitter.com/EmmMacfarlane/status/1422925735472271369

What is even more ironic about this whole situation is that Jagmeet Singh and Coyne himself will often rail that the “undemocratic Senate” shouldn’t be allowed to exercise their constitutional powers to veto legislation, and yet they are demanded that an appointed Governor General exercise powers that she doesn’t actually have under the constitution. It’s bizarre, and it’s a lot of bullshit masquerading as principle.

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Roundup: The Languages Commissioner goes rogue

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We appear to have another Independent Officer of Parliament who has decided to go rogue, as the Commissioner of Official Languages, Raymond Théberge, has announced that he plans to investigate the nomination process that selected Mary Simon as Governor General, given her lack of French. There are, of course, a whole host of problems with this, starting with the fact that the GG is not a federal bureaucrat and is not included in the Official Languages Act. Her office in Rideau Hall is certainly subject to the Act, and there is no question it will operate bilingually, but Simon herself is not. Furthermore, she is appointed by the Queen on the advice of the prime minister, and the advice that he gets from his appointments committee (as problematic as the current structure may be) is non-binding.

Théberge, in that case, has decided that he’ll investigate the Privy Council Office for their role in supporting said committee and providing advice, which…is a stretch. A very, very big stretch. The whole sham investigation is already outside of his mandate, and more to the point, it is hugely colonial at that, and certainly not exactly befitting the stated goals of decolonization and reconciliation. (There is, of course, the matter of this government’s apparent hypocrisy in how it treated the appointment of Simon and how it treats the appointment of Supreme Court of Canada justices, but that is also not exactly something that Théberge could investigate).

Meanwhile, Philippe Lagassé enumerates these points, explains the role of convention versus legislation in these kinds of appointments, and most especially points to the fact that Théberge might want to better familiarize himself with the Constitution, given that the appointment didn’t violate any Act of Parliament. What a gong show.

https://twitter.com/EmmMacfarlane/status/1417267990790279174

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Roundup: Another paralyzing motion

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In the wake of Wednesday’s confidence vote, Erin O’Toole was strutting around saying that his party was going to focus on “issues” instead of “playing politics” – as though the stunt of the so-called “anti-corruption committee” was anything other than playing politics, or the fact that he has to continually lie about non-issues in order to make people angry than focusing on some of the actual issues that this government is getting wrong. And to that end, O’Toole and Michelle Rempel Garner spent yesterday on another Supply Day motion, this time geared toward ordering the health committee to conducting a wide-ranging study on the federal government’s response to the pandemic. Rempel Garner insisted that this was “non-partisan” and free of the hyperbole of the previous motion (and the government is not treating this as a confidence motion), but I still have issues with it (and I do not agree with Kady that this is “100% shenanigan-free).

For starters, many of the items enumerated by the order are the kinds of things that the Conservatives have been engaging in a campaign of revisionist history around, so I absolutely do not consider their intentions to be pure and honourable regarding them, and I suspect there will be many a fishing expedition based on this order, particularly to satisfy the conspiracy theorizing that the Conservatives have engaged in around the role of China and the WHO. The motion also orders a massive production of documents going back to January 2018 in some cases – something that the government has warned would be physically impossible in the time allotted (because we need to remember that nobody is working from their offices, and access to many of their files is limited to non-existent because nobody can get to their offices for “health and safety” reasons). I don’t think that Patty Hajdu was being too hyperbolic herself when she said that this kind of order would grind the department to a halt. As Kady mentioned in her tweet, the protocol of ordering ministers to appear is bad and setting a terrible precedent, and I’m increasingly uncomfortable with orders that the Law Clerk handle redactions on a very limited basis, meaning that there is no room for Cabinet confidences under the order, and the fact that he may not necessarily have the right knowledge to know about national security exemptions, or commercial sensitivity as Anita Anand pointed out yesterday around some of the negotiations for contracts, whether it’s PPE or vaccines, and publicly releasing that information could undermine ongoing negotiations with other suppliers.

The vote on this won’t be until Monday, and it looks like the other opposition parties are lined up in favour of supporting it, as they have with most other Supply Day motions (that weren’t declared confidence). I do worry that these kinds of motions are going to start becoming commonplace, and that very bad precedents are being set for the future.

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Roundup: An escalation of props

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The moment that “remote sittings” began, which morphed into “hybrid” sittings, MPs began with the stunts. First it was signs in their backgrounds – which were ruled out of order as props, then it was dress code violations, and during the first “hybrid vote,” we saw MPs have their kids and dogs in the frame, and one of them was conspicuously driving while he voted. None of this is good for the practice of parliamentary democracy (and no, I don’t care what people say about how great it is they had their kids with them). And of course, one MP decided to take it to the next step.

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How this particular stunt wasn’t declared a de facto prop I’m not sure, but you can expect that this sort of thing is only going to escalate the longer it goes on unless the Speaker puts his foot down right now and stamps it out. And to be honest, when I’ve been cautioning against the problems that normalising “hybrid” sitting was going to bring, I didn’t think to include that MPs would start pulling stunts in the name of being “first” or “historic,” as they keep patting themselves on the back for these days, and yet they found new ways to surprise me. This is not a good thing. And because the Speaker didn’t say anything yesterday, I can only imagine how many more locales we’ll start seeing in the coming days, ever-escalating until someone comes to their senses and declares this to be the same as using props. Because honestly – this is going to be a very bad precedent.

Rideau Hall

In an unusual move, Governor General Julie Payette has contracted the services of former Supreme Court of Canada justice Michel Bastarache to be a “constitutional advisor” in the ongoing saga of the investigations of her office for harassment and bullying issues. It’s very odd and problematic, and here is professor Philippe Lagassé to provide some added context:

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Roundup: Unserious knee-jerk suggestions

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As expected, some of the sillier suggestions for avoiding future SNC-Lavalin-type Affairs have started cropping up, and yesterday, Policy Options hosted one from the head of the Canadian Taxpayers Federation. His suggestions? Splitting the role of Attorney General and Justice Minister, and to ban omnibus bills.

On the former, it’s clear that he didn’t actually read the McLellan report beyond the headlines, because he would have seen – as Paul Wells pointed out so ably in his own piece – that the guidelines that McLellan puts forward in the report would have prevented this whole sordid affair before it got off the ground. (Side note: It may not have prevented Jody Wilson-Raybould from being shuffled, given the lack of competence she had demonstrated in the role overall, and Scott Brison was going to retire regardless, so that likely would have happened, but the fallout may not have gone quite the same way). There is no reason given in the Policy Options piece for rejecting McLellan’s advice – just that the whole Affair has damaged the public confidence. So that gets a failing grade.

As for the suggestion to ban omnibus bills, he doesn’t quite grasp the magnitude of the suggestion. He claims, not incorrectly, that they exist for the sake of efficiency, but that efficiency is largely because there are many pieces of legislation every year, where if you introduced individual bills for each component – such as around technical changes in a budget implementation bill – Parliament would grind to a halt. There is a time and a place for omnibus bills – the difference is when they are being used abusively. The Conservatives stuffing changes to the Canadian Environmental Assessment Act into a budget implementation bill? That’s abusive. The Deferred Prosecution Agreement provisions being put into the budget bill? It’s borderline, but it wasn’t hidden or snuck through – it was in plain sight, the committees in both Houses each saw it and dealt with them (albeit less effectively on the Commons side), and the Commons has new rules to deal with splitting up votes on omnibus bills. Ironically, if the DPA legislation had been put forward as a separate bill, it likely would have languished until swallowed up by an omnibus justice bill, as happened to several other criminal justice reform bills over the course of the last parliament (speaking of Wilson-Raybould’s ability to manage her own bills). But the suggestion to simply ban all omnibus bills is unserious and jejune, and a perfect example of the kind of knee-jerk suggestions we’re going to see plenty of in the days ahead.

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Roundup: The caucus question

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The question of the future of Jody Wilson-Raybould and Jane Philpott in the Liberal caucus is a very live question as sentiment seems to be turning against them – though one imagines that Wilson-Raybould’s ouster is probably of bigger concern to most Liberals given the revelation of the tape she made of her conversation with Michael Wernick. Apparently, the various caucus chairs have been meeting, and pushing for an emergency caucus meeting before the regularly scheduled Wednesday meeting to try and resolve the issue before then. Some of them want a declaration from the pair that they support the leader before they will consider letting them stay – and Wilson-Raybould would not give that when scrummed after QP yesterday, saying she believes in the party and what it stands for, but would not give any assurances about the leader. (She also scoffed at the idea of resigning, insisting that she was doing the best job she could). Of course, the fact that she made the secret recording means that she has broken the trust of colleagues, even though she has made the excuse that Wernick was neither a member of caucus, nor her client. (I would add that it doesn’t explain her conduct during that call, which contained a number of irregularities, leading questions and directed conversation in search of quotes). There are questions still about Philpott, and where she will position herself since the release of the tape, and some Liberals have suggested that perhaps she was “used” by Wilson-Raybould. (And one has to wonder if the tape would change her own notions about her support for Wilson-Raybould).

I have to say that I’m struggling on the question of whether or not Wilson-Raybould should remain in caucus, because while I believe there is room for dissent, and even for MPs who don’t support the leader – because it’s a gods damned political party and not a personality cult – I also find that the tape causes me a great deal of concern for the reasons articulated above, as do the opacity of her motivations for behaving in the way she has, particularly around the tactical use of silence on something that you would think she’s be pulling the fire alarm over if it was what she is hinting. Too many things don’t add up, which is both distressing and exhausting for someone trying to understand what is going on. I get that there are Liberals with battle scars who don’t want a replay of the Chrétien-Martin years (or the Dion-Ignatieff wars, or even Turner-Trudeau Senior if you want to go that far back), and there is the worry that Wilson-Raybould’s presence in caucus will be a potential source of internecine warfare that Liberals apparently excel at, or that Trudeau should be putting some metaphorical heads on spikes to reassert his dominance, or any of that, but again, this is a political party, not a personality cult. This is not and should not be Trudeau’s party, but there is a live question about the damage she has done to the party and its chances in the election given the way that this has rolled out, and members of caucus will need to consider that. It’s not an easy task, and they should think carefully, because expelling those two could create bigger narrative problems for them in the longer term. But it’s also not up to me to decide (and I’m not one of those journalists who enforces caucus loyalty), so I await to see what everyone in the caucus room decides.

Meanwhile, the Conservatives decided that their next pressure tactic would be for Pierre Poilievre to “filibuster” the budget debate – err, except it’s not really a filibuster because it can only take place during the time allotted for government orders, and the Standing Orders limit the budget debate to a maximum of four days, those days being at the government’s choosing. So essentially, Poilievre is holding himself hostage, and by him taking up all of the speaking time over those four allotted days, he’s essentially ensuring that nobody else has to prepare a speech of their own, so all of the MPs on House duty can simply spend their time doing paperwork at their desks while he carries on. So…I’m not sure what exactly the Conservatives are hoping to accomplish. It’s another ill-conceived move by a caucus who mistakes tactics for strategy.

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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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Roundup: Performative anxiety over the pipeline bill

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There’s a bit of performative wailing and gnashing of teeth emanating from the Senate, as the nonsense bill from Conservative-turned-Independent Senator Doug Black about declaring the Trans Mountain pipeline in the national interest passed earlier this week, and they have no indication whether it will be passed by the Commons in short order. After all, there are only some eight days until Kinder Morgan’s “deadline” comes to pass, and under the politician’s syllogism, something must be done and this is something, therefore we must do this. Never mind that as a bill, it’s constitutional nonsense because the preamble invokes Section 92(10)(c) of the Constitution Act 1867, and the project is already federal jurisdiction because it crosses a provincial boundary; invoking the section would imply that it is provincial jurisdiction (it’s not), or that it would perversely declare a federal issue to be provincial for the sake of declaring it federal again (which sets up a really terrible precedent for the future). The bigger problem is that it’s a Senate public bill, which means that when it gets to the Commons, it needs a sponsor (not a difficult get for Black in this case), and then it goes into the queue of private members’ business. It could be weeks before that refreshes and it earns a slot for debate, which will be well past the artificial deadline from Kinder Morgan. This despite the fact that the bill should be defeated because it’s constitutional nonsense. And the Conservative senators who are currently complaining that they have no indication if the government will pass the bill immediately know better – there isn’t a mechanism for them to do so, barring a motion to pass it at all stages once it’s on the Order Paper. Which it’s not. But hey, facts have never stopped anyone from making a big show of something like this before, so why start now?

In other pipeline news, no other company has publicly declared that they are willing to take over the Trans Mountain pipeline if Kinder Morgan backs out (but I’m not sure why they would say so at this point, because I’m sure it would drive up the price if they sounded eager). Jagmeet Singh has firmly put himself in BC’s camp on the issue, earning the rebuke of Rachel Notley – and the fact that he hasn’t bothered to even call her has Notley questioning his maturity. That western premiers meeting that Notley sent her deputy premier to instead happened, and said deputy didn’t sign onto the final communiqué because it wouldn’t show support for Trans Mountain, while BC premier John Horgan talks out of both sides of his mouth, demanding that the expansion be halted while demanding the existing pipeline continue to carry fuel for BC, and insisting that the two are very separate issues.

Meanwhile, as Alberta turns into a single-issue province, I continue to be amazed at the hyperbole being expressed on this issue. One pipeline advocate yesterday referred to BC as a “rogue state.” Guys. Seriously? The most BC has done is hold a press conference and file a court reference that they are likely to lose. This drama queen routine is getting a little embarrassing.

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QP: Elections, Hamas, and subsidies

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On a pleasant Wednesday afternoon in the nation’s capital, the benches were full in the Commons as MPs gathered for what was not only Question Period, but the practice of proto-Prime Ministers Questions, something that has never quite worked out in practice. Andrew Scheer led off, concerned about the electoral reform bill, and the fact that it would allow for American-funded groups to campaign and that the government could make announcements on taxpayer’s funds. Trudeau reminded him that most of those changes were recommendations from Elections Canada, and the previous government tried to ruin our electoral system. Scheer then asked why the government didn’t choose their first candidate for Chief Electoral Officer, to which Trudeau took up a script to read about how great the chosen candidate is. Scheer then changed topics to demand that Trudeau walk back on his statement about the shootings in Gaza and blame Hamas, to which Trudeau said that he spoke to Prime Minister Netanyahu about the incident and the fact that a Canadian civilian doctor was shot by an Israeli sniper, and that demanded an investigation. Scheer took exception to this, insisting that Israel goes out of its way to protect civilians, and Trudeau chastised Scheer for politicising the Israeli question. Scheer railed that Trudeau was not condemning Hamas and that they were the ones who politicised the situation, and Trudeau responded by regaling him with Conservative protesters picketing the home of a Toronto Jewish leader who openly supported the Liberal party in the last election. Guy Caron was up next for the NDP, demanding an end to fossil fuel subsidies, and Trudeau took up a script to say that they were working on their plan to phase out emissions and that Trans Mountain was part of that plan. Caron demanded to know the ceiling for the “subsidy” to Kinder Morgan, and Trudeau responded off the cuff that they have strengthened measures to ensure that Kinder Morgan got their approval and that it sends a signal that projects could get built. Jenny Kwan took over in English to reiterate the same questions, and Trudeau took up his script to reminder that the G7 plan was by 2025. Kwan railed that the government had no intention to phase out the subsidies, and Trudeau reiterate their commitment to growing the economy while lowering emissions. 

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Roundup: Not the constitutional crisis you were looking for

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After much drama and back-and-forth between the two chambers, the Senate passed the omnibus transport bill yesterday after the Commons rejected their amendments a second time. Once again, we did not get the constitutional crisis that we were promised, and we’ll get a whole new round of back-patting that the Senate did its job, because at least a few of the amendments were accepted (even though the larger problem remains that many of the ones that were rejected saw no debate, nor were reasons for rejecting them provided other than the government “respectfully disagrees,” which is not a reason).

Amidst this, the Conservative Senate leader, Senator Larry Smith, penned a response in Policy Optionsto Government Leader in the Senate – err, “government representative” Senator Peter Harder’s previous op-ed about the apparent use of a Salisbury Convention in the Canadian Senate (which was false). The problem there, however, is that Smith didn’t really rebut anything about the Salisbury Convention or lack thereof. Rather, he went on about how the prime minister is trying to walk back on his promise of a more independent Senate by means of their rejection of the bulk of the amendments to the transport bill, and the apparent orchestration through Harder of a policy of trying to tell senators how to vote (as in, pass bills even though we say that we don’t want you to be a rubber stamp). And while I sympathise with many of his points, I’m not convinced by his overarching thesis.

Despite the fact that many a Conservative senator keeps trying to promulgate a series of conspiracy theories, from the fact that the new Independent senators are all just crypto-Liberals that are being whipped to vote a certain way, that they are trying to “destroy the opposition” in the Senate, or in this case, that the PM is trying to undermine his own pledge for independence via Harder’s patently unhelpful suggestions. But part of the problem is that on the face of it, none of these really stack up. While we can’t deny that many of the new senators have government sympathies, I wouldn’t consider them partisans in the same sense. The issues of their block-voting has more to do with their anxieties about accidentally voting down government legislation than it is about their being whipped to vote a certain way. And frankly, the biggest reason why I sincerely doubt that Trudeau is conspiring with Harder is the fact that there has been so little competence being demonstrated by Harder and his office when it comes to management of the agenda in the Senate that it seems more than implausible that there is any kind of coordination happening, particularly since I know that there are people in Trudeau’s and Bardish Chagger’s offices who know how the Senate works, and we’re not seeing their input. And the longer that the Conservatives keep pushing these woeful conspiracies, the more they undercut their own position on maintain a level of status quo in the Senate that is probably beneficial in the longer term. But they never seem to learn this lesson, and it may cost them, and the institution, as a result.

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