Tag Archives: Constitution

Roundup: Stop saying disallowance

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As the drama over Doug Ford using the Notwithstanding Clause to ram through his petty vengeance on Toronto City Hall drags on, we saw new levels of stupid demands yesterday, as Toronto City Council voted on a motion yesterday to request the federal government use its constitutional disallowance powers on the bill and kill it. But that’s never going to happen. Likewise with people writing the Lieutenant Governor to demand that she not sign the bill. That’s never going to happen. As this piece explains, disallowance is a dead letter because it would create a constitutional crisis over federalism, just like a Lieutenant Governor disallowing a bill from a government that has the confidence of the legislature would also be a constitutional crisis. And Trudeau has stated repeatedly that he’s not going to get involved – sure, his Toronto MPs can write a letter to Queen’s Park to express their concern, but this isn’t his fight, and he knows full well that getting involved would create a shitstorm the likes we haven’t seen in this country in decades. So no, Ontario – you get to lay in the bed you made.

More concerning, however, is the fact that Power & Politics brought on a bunch of former premiers who all gave Ford a pass on using the Notwithstanding Clause, and each of them going after the courts in one way or another – Christy Clark in particular making it sound like she would rather a government run roughshod over the rights of minorities rather than let courts protect them at the expense of project approvals (thinking specifically of Trans Mountain). And most alarming was the fact that there was no pushback against any of this, which you’d think would be important to have. Apparently not.

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Meanwhile, Supriya Dwivedi writes a stunning takedown of Ford’s many hypocrisies on this issue, and the fact that there is far too much silence over his attack on the fundamental democratic notion of judicial review. As well, the former Executive Legal Officer of the Supreme Court of Canada has some interesting analysis about how Ford’s move could violate international law.

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Roundup: Offering justifications for the indefensible

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The attempts by conservatives, both provincial and federal, to justify the use of the Notwithstanding Clause is in full swing, and it’s a bit fascinating to watch the intellectual contortions that they will go through in order to justify a) the abuse of process for Bill 5 in the first place, b) the need to ram it through during the middle of the election itself in order to interfere, and c) why they need to go to the mat and use the nuclear option in order to help Ford enact petty revenge. One of Ford’s MPPs wrote up her legal analysis, which is more than Ford or his attorney general have bothered to do, but it still didn’t explain the need for haste when an appeal of the lower court decision would have been the proper way to go about disputing its reasoning. Ford’s MPPs would go on TV and throw around the word “elites” as though that justifies the nuclear option, which, again, doesn’t actually constitute a proper reason for employing said nuclear option. Andrew Scheer, meanwhile, is falling back on the technicality that Ford’s using the Clause is “within the law” because municipalities are under provincial jurisdiction, which is beside the point – the point being that Ford is violating the norms of our democratic system for his own personal ends, and not calling out that violation of norms is troubling.

Even more troubling was that during yesterday’s raucous Question Period in Queen’s Park, Ford stated that we don’t need the Charter because people elected him – all of which just continues his particular inability to discern between popular rule and democracy. Popular rule is justifying breaking rules and norms because you got elected – democracy is those rules and norms that keeps power in check. That he can’t grasp the difference should be alarming.

The LeBlanc Report

The Conflict of Interest and Ethics Commissioner issued his report yesterday on whether Dominic LeBlanc violated ethics rules regarding the awarding of the Arctic surf clam fishery to a company that was headed (on an interim basis) by his wife’s cousin – the context is that he’s one of sixty first cousins, and his relationship with LeBlanc is at best described as an acquaintance. Reading through the report, it hinges upon the Commissioner reading the definition of family much more expansively than it is interpreted elsewhere in the very same regime, which is how LeBlanc interpreted it. LeBlanc took responsibility, vowed to do better in the future, but that hasn’t stopped the opposition from taking the usual route of wailing and gnashing of teeth to decry just how unethical this government is.

In the demonstrable instances, however, the ethics violations have been pretty small ball (i.e. Bill Morneau not properly reporting the ownership structure of the French villa he disclosed), or legitimate differences of opinion on relationships (whether the Aga Khan was a family friend in Trudeau’s case, or the closeness of the relationship between LeBlanc and his wife’s cousin in this case). These are not instances of influence being peddled, people being unjustly enriched (and I know people will quibble about the Bell Island vacation, but the Aga Khan is not some tycoon looking to increase his corporate holdings by way of government connections), so perhaps a bit of perspective is warranted. Should Trudeau and LeBlanc have cleared things with the Commissioner beforehand? Absolutely. But this performative outrage we’re seeing will only get you so far, and railing that there have been no consequences beyond naming-and-shaming means little considering that it was the Conservatives and NDP who designed this ethics regime back in 2006, and they could have designed a more robust system them – or at any point that it’s come up for statutory review – and they haven’t.

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Roundup: Self-inflicted leadership wounds

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There was a fairly damning piece out about the state of the NDP yesterday, as they began their caucus retreat in Surrey, BC, and how the party basically put itself on hold for two years after they turfed Thomas Mulcair but left him in place for two years while they engaged in an overly long leadership process, only to let their fundraising collapse and their outreach stagnate. I do have vague recollections about how they were totally going to use the two-year!leadership contest to totally re-energise the party, and it would totally bring in all kinds of new fundraising and members, and so on. Turns out, none of that happened, Mulcair being left in place slowly poisoned the well, and at the end, they wound up with a leader without a seat, and who has been largely absent both from Ottawa and the national stage (leaving another defeated leadership candidate in his place in Ottawa). I’m hoping that the entire Canadian political scene takes this as an object lesson that the way we’re running leadership contests is very bad, and that we need to get back to the sensible and accountable caucus selection (and removal) of leaders. The pessimist in me, however, sees this very likely reality that they won’t take the lesson, and we’ll continue stumbling along.

Also in NDP news is the damage control about the Erin Weir debacle, and they’re getting out activists and pet columnists to come to their defence and to insist that Weir is the worst person imaginable, ignoring that he took to the media to defend himself after a campaign of leaks started against him as part of the Mean Girling around him, and they’ve offered nothing to substantiate that he is a harasser in any meaningful sense of the word. Jagmeet Singh even proclaimed that he wouldn’t be intimidated by “elites” from the party’s own grassroots – their own current and former MPs and MPPs in Saskatchewan – into changing his mind. It’s actuall a bit stunning.

Notwithstanding

Because this is still Very Big News, there is talk coming out of PC circles in Ontario that Doug Ford is willing to use the nuclear option to show that he’s tough against the courts where Trudeau isn’t, and then uses the false notion that the Notwithstanding Clause could have been used on the Trans Mountain ruling – which it couldn’t, because the Clause only applies to certain sections of the Charter, for which Section 35 is not a part of. But since when to facts matter when you’re pursuing a private grievance in a big, public way? Worse was the fact that people were trying to get Ford to bring up the fact that Justice Belobaba refused to freeze Omar Khadr’s $10 million settlement and turn it over to the widow of his putative victim. Justin Trudeau, meanwhile, continues to say that this is a political issue for Ontarians to deal with, not for him to swoop in and do something about, and he’s right.

Meanwhile, here’s Paul Wells snarkily congratulating Ford’s government for embracing the extremism it too Stephen Harper a decade to find and for making the Notwithstanding Clause easier for any other government to use in a fit of their own pique. Law professor Vanessa MacDonnell thinks that Ford should clearly articulate why he is invoking the Notwithstanding Clause, while Susan Delacourt wonders why Trudeau left it up to Brian Mulroney to forcefully denounce the invocation.

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Roundup: Notwithstanding Ford

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It was a crazy day in the state of constitutional law yesterday, as an Ontario judge struck down Doug Ford’s bill to reduce the size of Toronto city council on some rather dubious grounds, and Doug Ford responded by insisting that he would invoke the Notwithstanding Clause to ensure it passed anyway, no matter that the issue by which he’s going to use the seldom-used provision on is of dubious merit, and has all of the appearances of enacting a political grudge (while all of the “reasonable” members of his Cabinet who were supposed to keep his worst impulses in check cheer him on). It’s a full-blown tire fire.

For starters, here’s a bit of context about just what the Notwithstanding Clause actually is, and some history of its use. But what is perhaps more alarming are the number of voices who are calling on the federal government to invoke the defunct constitutional provisions around disallowance as a way of thwarting Ford – and some of that has been fuelled by Toronto mayor John Tory meeting with prime minister Justin Trudeau last night. I can pretty much guarantee you that Trudeau, however, won’t touch the disallowance powers with a bargepole, because a) the powers are defunct for a reason (in that the issues that disallowance was used on are better dealt with through the courts), and b) it would stir up such a shitstorm of epic proportions that it would be difficult to contain the political damage, and I’m not sure that Trudeau is willing to expend that much political capital for something that is really not his political ambit, and he’s likely to win most of Toronto’s seats again regardless. But if you also look at the message that Trudeau’s minister of intergovernmental affairs, Dominic LeBlanc sent out, the not unsubtle language in there is that this is a fight for the political arena, and Ontario voters will have to deal with the mess that they created, which is pretty much how it should be. It’s not going to be easy if we’re having these kinds of issues three months in, but people shouldn’t expect another order of government to swoop in and save them. That’s not how democracy works.

Meanwhile, Emmett Macfarlane walks through what’s constitutionally dubious about the court ruling, while Andrew Coyne invokes some high dudgeon about use of the Notwithstanding Clause and Ford’s thuggish populist tactics. Chris Selley reminds us that so much of this episode is because Ford is all about chaos, and he brings more of it with these tactics. Susan Delacourt, rather chillingly, wonders which will be the next premier to decide that the Charter is inconvenient for their populist proposals. And University of Ottawa vice-dean of law Carissima Mathen both writes about why Ford’s comments are so offensive to our system of laws and governance, plus offers some more context about the Notwithstanding Clause in this video segment that you should watch.

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Roundup: A trifecta of constitutional buffoonery

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Yesterday was not a good day for the constitutional order in this country, as the Ontario government launched a constitutional challenge of the federal carbon price backstop legislation, arguing that it’s “unfair” and “unconstitutional” – which it absolutely isn’t, but this is about throwing a public temper tantrum in the name of populist outrage – but as David Reevely also points out, it’s about dragging this out in the courts, both Ontario courts and the Supreme Court of Canada well past the next election. Ontario’s two ministers insisted that they had legal opinions that said they had a solid case, but that’s almost certainly false, but I guess we’ll have to wait and see what kind of novel argument they came up with that the courts will laugh out.

As if this big of constitutional buffoonery weren’t enough, NDP leader Jagmeet Singh also came out with a demand that the federal government immediately give cities the ability to ban handguns – which is constitutionally a non-starter, since cities are the creatures of provincial legislation, and criminal powers are federal. Delegating federal criminal powers to the municipalities is similarly a non-starter. (Singh is also a lawyer and should know this).

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But to cap off the trifecta of constitutional idiocy comes courtesy of the Toronto Star, who asked Ontario Attorney General Caroline Mulroney if she was prepared to use the notwithstanding clause to opt out of the federal carbon tax – which is not something that the notwithstanding clause could actually deal with. Compounding this was that Mulroney’s answer was that they were going to examine all legal options, which made it sound like she was considering it, rather than simply saying “that wouldn’t apply here” and possibly adding “you moron” because it was not only a bad question, it was an irresponsible question and one that was either designed to make Mulroney look stupid (which she kind of did with the answer she gave) or to demonstrate that the reporter in question had no idea what they were talking about. So well done, Star. Slow clap for making all of us look bad in the process.

https://twitter.com/coreyshefman/status/1025022811579006976

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Roundup: Constituent consultation

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In another instance of MPs breaking ranks, Conservative MP Scott Reid bucked the party by opting to vote to send the marijuana legalization bill to committee on second reading. Reid notes that he has favoured legalization since 2000, and it also didn’t escape anyone’s notice that his riding is home to a major medical marijuana factory which is also looking to scale up for the recreational market.

Of course, Reid is putting this with conditions, which is that he wants amendments to the bill at committee, which includes raising the legal age to 21 (because that will totally help kill the black market), and allowing communities to maintain their own prohibitions (again, good luck with the black market). More interestingly is the fact that Reid is promising a “constituency referendum” on whether or not he should vote for the bill at third reading.

It’s this referendum that I have questions about, but Reid points out in his statement that he has done this thrice before, so I’m not sure by what method he did (phone poll? Online voting?) and it’s more indicative of the Reform Party era where this sort of thing was promised a lot, and then rapidly fell into disuse because it’s not easy to organize, especially on a consistent basis with the volume of legislation that can pass through the Commons in any given session. Nevertheless, it’s novel and likely riddled with problems, and I’m not sure I would want to see MPs doing it on a regular basis because part of why we elect them in the way we do is for their judgment in a representative democracy. But…it’s novel.

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Roundup: Backloading the spending with good reason

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Yesterday was the big day, and the Defence Policy Review was released, which by all accounts was a fairly comprehensive look at what the vision of the Forces should be for the next twenty years, complete with an extra $62 billion in defence spending over those two decades, plus more cyber warfare and drones, more ships, and more fighters along the way. The hitch? That most of that spending won’t start rolling out until after the next election, which could be a problem. The other hitch? That the way these things works means that it couldn’t actually start rolling out until then anyway owing to the way that these things work, and yes, the Liberals meticulously costed their plans with five different accounting firms looking over the numbers and ensuring that both cash and accrual accounting methodologies were included. (One defence analyst did note that this funding means that existing commitments that were made but not funded are actually being accounted for and funded under this new model). These accounting considerations are worth noting, and economist Kevin Milligan explains:

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Meanwhile, John Geddes casts a critical eye at the promises for future spending, while former Navy commander Ken Hansen offers his insider’s perspective on the document and its contents. Stephen Saideman takes a higher-level perspective including looking at whether the consultation process leading up to the report was followed (and it seems to be the case).

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QP: A furious rewrite of the scripts

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With the news that Madeleine Meilleur had withdrawn her name from consideration for Language Commissioner just before QP, you could almost hear the furious rewriting of question scripts. In fact, I saw pages deliver new scripts to MPs just before everything got underway. Andrew Scheer led off, raising her withdrawal, and wanted an assurance that future appointments would have cross-party support. Justin Trudeau responded with praise for his new open and transparent process. Scheer shifted topics to the risk profile of the Infrastructure Bank, and Trudeau praised the commitment to $180 billion in new Infrastructure that the Bank would leverage private sector dollars to help with. Scheer repeated the question in French, insinuating that this was about Liberal millionaire friends, and Trudeau reiterated his points on the need for the Bank. Scheer then moved to the issue of a public sex offender registry, and Trudeau insisted that they took the protection of families seriously, and it was up to police to advise the public. Scheer demanded that Trudeau reject the advice of bureaucrats to not make a registry public, but Trudeau stuck to his points. Thomas Mulcair was up next, noting the presence of a Hiroshima survivor and demanded the government join nuclear disarmament talks in New York. Trudeau said that they were taking meaningful steps which included rallying states for the support of a fissile material cut-off treaty and getting tangible results. Mulcair pressed, and Trudeau noted that the treaty Mulcair demanded we sign onto didn’t include nuclear states, so it was somewhat useless. Mulcair moved onto criminal records for simple possession while marijuana legalisation in the pipeline, and Trudeau returned to his well-worn talking points about decriminalisation not protecting children or taking profits away from the black market. Mulcair asked again, louder, and Trudeau held firm.

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QP: At last, the exchange of quips

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On a rainy Tuesday in Ottawa, it was all hands on deck in the Commons, with all leaders present for a change. Andrew Scheer led off, noting the anniversary of D-Day, and turned it into a question on fighting ISIS. Trudeau noted the contributions that Canada was making to the fight. Scheer tried mocking Trudeau’s television interview responses about positive spaces in this fight, and Trudeau quipped back that Scheer must not be too busy as opposition leader if he was all caught up on his daytime TV. Scheer batted back that it was the only place he could find Trudeau over the past week, and then railed about new taxes on beer and wine. Trudeau responded that they cut taxes to the middle class. Scheer insisted that wasn’t true, and listed a number of penny ante issues like making Uber pay HST and carbon taxes (which are largely provincial), and Trudeau noted the difference in vision that his government offered. Scheer then veered into a question about the public sex offender registry, and Trudeau called Scheer out for politicising the wrong issues, and said that trying to insinuate the Liberals didn’t care about children and families was shameful. Up next was Thomas Mulcair, who brought up the Madeleine Meilleur nomination and stated that she confirmed in the Senate that she discussed the position with Gerald Butts and Katie Telford — which isn’t what she said. Trudeau reminded him of the open nomination process, and when Mulcair tried to insist that one f them were lying, Trudeau didn’t budge from his points. Mulcair then railed about Trudeau slamming the door on Quebec’s face on their request to discuss the constitution, and Trudeau said that he had other priorities. Mulcair gave it a second go, insisting this was a snub at Quebec alone, and Trudeau reminded him that he says the same thing in English and in French and had no interest in getting into a constitutional quagmire.

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Roundup: BC Speaker drama, part III

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While the drama over the coming BC Legislature Speaker election draws closer, and we are faced with more stories of not only the likelihood of a partisan NDP Speaker, but also one who will take off the robes to vote as an MP in committee (which is unconscionable, frankly), we see yet more boneheaded suggestions being thrown into the mix, none more so than our friends at Democracy Watch who want to turn this into an opportunity to turn the Speaker into an independent appointment, like an Officer of Parliament.

Hell. No.

This all having been said, the Speaker is the servant of the House, and to do that, he or she must be a member of it. There’s a reason why when a Speaker is elected, they are “dragged” to the Chair, because Speakers in the 1300s sometimes faced death when Parliament displeased the King. That’s not an inconsequential part of the reason why we have a Parliament in the manner that we do, and it’s important that we keep that in mind as we practice our democracy.

We also need to call out that for a group that purports to be focused on democracy, Democracy Watch is a body that seeks to limit actual democratic accountability with the imposition of innumerable independent Officers of Parliament who are appointed and unaccountable, and which seeks to codify conventions in order that they can be made justiciable with a goal of ensuring that political decisions wind up in the courts rather than at the ballot box. Theirs is not a vision of democracy, but of technocracy, and that’s not something we should aspire to, no matter what you think of our politicians.

Meanwhile, Jason Markusoff thinks that the Liberals should suck it up and put forward one of their own as Speaker for the sake of the institution (and he draws some of the lessons of New Brunswick from 2003-2006), while David Moscrop says the potential to damage the institution is too great, and it’s preferable to have another election to resolve the situation (which I’m sympathetic to). As well, Rob Shaw charts a course for redemption for Christy Clark amidst this chaos.

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