Tag Archives: Constitution

Roundup: Justice Abella’s farewell to the Court

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Yesterday was a bit of a sad day at the Supreme Court of Canada, as Justice Rosalie Ahella, the senior puisne justice on the court and the longest serving judge in Canada, heard her last case before her mandatory retirement date on July 1st. She will have another six months to finish writing up any judgments that she sat on before the retirement date.

As her final speech, she spoke of being born a refugee, her parents Holocaust survivors, and they moved to Canada, in order to give their children a better life. Abella went to law school, was the youngest judge appointed to the provincial bench at age 29, and went on to have a very influential career chairing commissions and a royal commission, before she was appointed to the Supreme Court – the first Jewish woman appointed, and the first refugee – where she has been for 17 years. And it was a lovely speech. (You can see the video here).

It’ll be interesting to see who the government chooses as her replacement. Because it’s an Ontario seat, there will be an increased focus on finding a more diverse candidate, given that we have yet to have a person of colour on the Supreme Court, and there is more likelihood to find one who can also meet the bilingualism requirement that this government has deemed so important.

Victoria Day

As a reminder, Victoria Day is the official birthday of the Queen of Canada, so be sure to raise a glass in her honour (gin and Dubonnet being Her Majesty’s favoured tipple).

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Roundup: From ombudsman to officer?

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The current military ombudsman is trying to pitch the notion that the government doesn’t need to create a new independent body to investigate complaints about sexual misconduct – rather, he is pitching that his office can do it, if only parliament would loosen his shackles and let him report to them directly rather than to the reporting to the minister of defence. I am dubious, and a little alarmed.

For starters, I am not certain that he is actually the best-placed person to field those complaints, rather than a centre that specializes in it, that is properly trauma-informed and so on. There is a reason why the Deschamps Report called for an independent body to do this kind of work, and I’m not sure that the military ombudsman is independent enough (especially as many of those who fill the role have military backgrounds, and are just as likely to be inured to the highly sexualized culture in the Forces that is part of what needs to be changed). It also detracts from other work that the ombudsman should be doing around other aspects of military life than just this particular aspect of it.

The bigger part I am reticent about, however, is because the very last thing we need is yet another unaccountable Officer of Parliament, as we already have far too many, and some of them are problems. Look no further than the Parliamentary Budget Officer, who is turning himself into a media darling and who is going far beyond his legislative mandate, but because he is accountable to no one – and because he is being encouraged to keep going beyond his mandate by the media – he is really pushing the boundaries of what is acceptable. As for a military ombudsman, you don’t have to go too far in history to see others who held the role who were also becoming problematic – one of whom was also becoming a media darling, and who got increasingly erratic as time went on (especially once he was no longer in the job). It’s not the kind of person who should be in a role that has no accountability, and if it’s happened once, it’s likely to happen again, particularly in the current environment. I’m not unconvinced that the current reporting mechanism of the ombudsman’s office isn’t a problem, but there needs to be another solution than creating another Officer of Parliament.

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Roundup: Poilievre wants to lie to you about inflation

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StatsCan released the April inflation figures yesterday morning, and for the unprepared, they look bad – a 3.4 percent increase year-over-year, when the Bank of Canada’s inflation target is around two percent. This may look alarming, but there is a very simple explanation for why it looks high, and it’s something they call the base effect – meaning, when you compare it to last year’s figures, you need to put those figures in context. In this case, when you look at the April 2020 figures, we were actually suffering deflation in the early throes of the pandemic, when the first real lockdown started, and everyone was being sent home. We’ve had a fair degree of economic recovery since then, and inflation is really still running a little below target, but that gets obscured by the base effect, and that will likely carry on for another couple of months.

The problem, of course, is that you have media outlets that won’t properly contextualise this, looking at how much year-over-year prices like gasoline have spiked – which again, ignores that a year ago, gasoline prices dropped to an eleven-year low because demand cratered as a result of the pandemic. It’s a better headline to talk about “price surges” rather than explaining that base effect. And to be fair, some prices have gone up for a variety of factors, while others haven’t – it’s why the consumer price index looks at a basket of goods and provides an average, where some prices rise and some fall, and they provide additional measures that will strip out some of the volatile indicators to see how the more stable ones are faring. And more to the point, the Bank of Canada knows what they’re doing, and if they see runaway inflation starting, they will tamp it down with the tools available to them, such as interest rates.

But more than just media outlets, we have the Conservatives and Pierre Poilievre in particular who are determined to light their hair on fire and lie about the inflation figure in order to denounce the government (blaming it on deficit spending) or by saying that the Bank of Canada is in cahoots with them (when they are independent of government and kept at arm’s length). And lo, Poilievre even produced a video that railed about the price of lumber to make his point – err, except the price of lumber isn’t increasing because of the monetary supply or deficit spending. It’s rising because there is a housing boom, particularly south of the border, and lumber exports can’t keep up with demand, hence the price increases. That’s basic economics, which you think that the party that bills itself as “good economic managers” and the “party of the free market” would understand, but apparently not. And more to the point, we can be assured that Poilievre will neither a) read a gods damned report from Statistics Canada beyond the headline to understand what’s going on; or b) tell the truth when he can whip up hysteria for the sake of scoring points. And because they will quote statistics in a way that strips it of its context, they will lie to the public, and the media will do very little about it – at most, both-sidesing the comment rather than calling out the simple falsehoods.

Meanwhile, Poilievre’s antics were perfect to turn themselves into memes. It’s probably just as well.

https://twitter.com/maxfawcett/status/1395103214681300992

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Roundup: Not taking constitutional amendments seriously

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During his press conference yesterday, prime minister Justin Trudeau said that according to his legal advice, Quebec can unilaterally modify part of the federal Constitution that applies specifically to them – which is either untrue, or appeasement to the Legault government, because every party is trying to suck up to Legault and his overwhelming popularity.

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A plain reading of Section 43 of the Constitution states that where language rights are involved, the federal Parliament needs to have a say in the constitutional amendment, and it’s very much invoked in these proposals from Quebec. That Trudeau – or apparently the lawyers in the Justice Department – can’t see this is a problem, and raises some real questions as to the quality of advice the government is receiving from the department. (Hell, even other Liberal MPs are questioning it).

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But what were people riled up over instead of an egregious violation of our constitutional norms? A photo of Trudeau at a laptop which was clearly an HP machine, with the logo covered over with an Apple sticker. The scandal!

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Roundup: The big endorsement

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All three leaders were in Quebec yesterday, being one of the most important battleground provinces when it comes to getting out the vote. Justin Trudeau started off his day in Montreal to again make the pitch that voters need a progressive government and not a progressive opposition, and saying that this was the “dirtiest” campaign ever because of things like disinformation. From there, he made several stops on the way to Sherbrooke. The big news in the afternoon, however, was a tweet from Barack Obama, giving an endorsement for Trudeau’s re-election, citing the need for a progressive voice on the world stage (and taking some of the wind out of the sails of the Conservative claim that Trudeau has been some kind of “embarrassment” on the world stage).

https://twitter.com/b_momani/status/1184550642225991685

Andrew Scheer started his day in Saint-Jérôme, Quebec, then headed to Essex, where he promised higher penalties for ethics violations (possibly flirting with constitutional challenges of what constitutes an administrative monetary penalty versus a criminal sanction), and headed into Ontario, eventually making it to Hamilton, where he was in the riding of the Liberal incumbent who was at her mother’s funeral that day – to which Scheer insisted it was okay because he made a charitable donation. (We also found out that he switched the location he planned to make the stop, and the pub owner of the first location was brassed off because he spent $700 preparing food for the stop and putting more workers on staff).

As part of his Quebec tour, Jagmeet Singh was in Hudson, Quebec, the birthplace of Jack Layton, to make his pitch of trying to claim Layton’s legacy. Throughout the day, he started making more untenable promises, like reopening an emergency room in Winnipeg – something that is explicitly provincial jurisdiction, while hand-waving about “levers” he can use, which he actually has none – particularly not in the Canada Health Act. But hey, he wants people to “dream big,” and never mind the Constitution or the clear division of powers therein.

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Roundup: Not appealing, just consulting

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First thing yesterday morning, the federal government announced that they were proceeding with restarting consultations with First Nations affected by the Trans Mountain Expansion pipeline, and that they had tasked former Supreme Court of Canada justice Franc Iacobucci to oversee the process. Iacobucci has done a great deal of work around the Duty to Consult in recent years, as this report that he wrote with law firm Torys LLP demonstrates, along with work he’s done with Ontario over the underrepresentation of Indigenous people on juries in the province. Indigenous groups in the region have responded with some optimism, but are also warning that these consultations can’t come with a predetermined outcome if they’re to be meaningful (which may be too far to go given that the government has stated that this project will go ahead). Some of those Indigenous communities are also looking at the fact that this process could allow them to talk more amongst themselves.

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Meanwhile, Rachel Notley and Jason Kenney (among others) are bellyaching that the government has opted not to appeal the Federal Court of Appeal decision to the Supreme Court of Canada, and yet not one of them has articulated what the error in law they are looking to contest would actually be, which is kind of a big deal if they think the Court will hear it. It’s also not clear that an appeal would get them any clarity anytime soon, given that the Court usually gives about six months between granting leave and hearing the case in order to provide time for submissions, and then a decision could take another six months at least – possibly more if it’s a contentious issue, like this one is.

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Senate QP: Jody Wilson-Raybould is still so proud

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After the day’s repetitive QP in the Other Place, the justice minister, Jody Wilson-Raybould headed down the hall for Senate Question Period. Senator Larry Smith was up first, asking about the decision-making process to approve only one THC testing device, which many police forces are opting not to buy. Wilson-Raybould replied that they had expertise from the Canadian Society of Forensic Scientists, and that while it was the first device approved, it was not the only tool that law enforcement officers have, which was why they invested in field training for drug detection. Smith asked if there were other devices on the way, and Wilson-Raybould offered the backgrounder on the one approved device and said that she was open to approving others as they are tested.

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Roundup: The people’s vanity project

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Yesterday, Maxime Bernier confirmed his party will be called the “People’s Party of Canada,” just like so many communist parties in the world. Oops. And like those other “People’s Parties,” he won’t hold a contested leadership race, and he’ll get the final say on policies, so that’s off to a great start. Even better was the fact that his logo is simply a repurposing of an old Reform Party logo, and the policy page is a word-for-word copy of the Libertarian Party’s policy (which people also insist was a copy of Bernier’s leadership race policies), so that’s a great start. And during his press conference, he already started with the policy musings that apparently originated from the Internet’s darker recesses. So there’s that.

And aside from the trite attempt to use gay rights as a cover for bashing Muslims, Bernier has a glimmer of awareness that he’s going to be branded with the xenophobes he’s riling up, and he insists that anti-Semites and xenophobes will be kicked out of the party, while at the same time as he’s still using not-even-thinly-veiled xenophobia to try and create a wedge between his nascent party and the Liberals. But while he hopes to make immigration and refugees (and yes, there is a difference) between them as a wedge, he’s already getting warnings that he’s going to have to be very careful to keep the racists out (not to mention the alt-right, the MRAs, and whichever other dog-whistles he happens to be blasting at the time).

Meanwhile, John Geddes deciphers Bernier’s messaging and what he’s offering based on it, while Andrew Coyne reminds all of those who insist this will simply split the Conservative vote that yes, there is actually room in the Canadian political spectrum for such a “worthy experiment,” assuming that Bernier were capable enough to pull it off (and Coyne, like the rest of us, has his doubts). And Paul Wells delivers an epic takedown of Bernier’s potential voters.

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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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