Tag Archives: CSE

Roundup: Privilege case at the SCC

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There is an interesting case being heard at the Supreme Court of Canada today, which goes to the heart of how laws are made in this country. An Alberta First Nation, the Mikisew Cree, applied to the Federal Court for judicial review of the 2012 Conservative budget implementation bill after its changes to environmental legislation didn’t consult them, per Section 35 of the Constitution. The problem? You can’t have the courts interfere with the legislative process. That goes to the heart of parliamentary privilege and the separation of powers.

The Federal Court allowed a partial application, citing that they should have been given an opportunity to make submissions, but this was overturned by the Federal Court of Appeal, which (correctly, in my view) cited that the Federal Court Act had no jurisdiction over the legislative process, and that it offended parliamentary privilege and the separation of powers, and there was an additional issue that this omnibus bill was of general application and did not apply specifically to this First Nation. The Supreme Court of Canada now gets to hear the issue and decide whether or not this should be the case in the face of the constitutional duty to consult.

While I’m sympathetic to the need to consult on these issues, particularly on issues that will affect their lands and ability to have engage with the processes that are created out of the regulator bodies that are engaged by the legislation once it is enacted, I do have a problem with the demands that any outside group be included in the drafting process. And while the current government has made a great deal of effort doing consultations before they draft bills (and there is no shortage of grousing as to how it slows down the process), there are usually plenty of opportunities to intervene once the bill is tabled and reaches committee hearings in both the Commons and the Senate. This is how parliament is supposed to work. Trying to short-circuit this has an effect on things like cabinet secrecy, and more likely, could grind the legislative process to a halt if you were dealing with a group that wanted to be obstinate. But also, it bears reiterating that parliamentary privilege and the separation of powers are not things to be trifled with, because it undermines the ability of parliament to do its work. While I’m confident that the Supreme Court will do the right thing, I do worry that this case has made it this far and could be victim of novel thinking that could do lasting harm to our institutions.

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Roundup: Oprah and the rot of populist politics

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As a rule, I don’t really comment on American politics, but this issue of Americans clamouring for Oprah Winfrey to run for president in 2020 has been getting a lot of press lately. Colby Cosh runs through why it was probably a trial balloon that fortunately deflated, while Rachel Giese worries that the dismissal of the possibility amounts to more racism and sexism rather than dealing with some of Oprah’s ability to connect with people. And she does have that – I used to darkly muse that Oprah could almost certainly run for president and win because back when I worked in book stores during my undergrad years, and every time Oprah mentioned a book, we would be inundated with calls and demands for said tome. Early on we weren’t given advance notice, and it was a gong show, and after she alerted publishers beforehand and we were sent ample shipments of said volumes in time for the show to air, it was more manageable chaos, but it never failed to surprise me with how much she had an ability to influence the viewing public’s shopping choices, and made me wonder how far that power could be extended.

But the fascination with celebrities running for office is not new or novel, and is part of a sign of the deeper rot of populism within our political discourse. The distrust of the political class and career politicians has long been sown by populists, and Canada is no exception. Conservative MP Michelle Rempel penned her own op-ed to talk about this urge for celebrities to be political saviours, and outlined her own particular list of what it takes to make good political leaders (including a few subtle digs at Justin Trudeau in there, naturally), but while she talks about the disconnect that people have between their ability to examine government as its role in our lives has expanded exponentially over the past seventy years, she misses one key point – that Canadians aren’t taught how to engage with the system.

Because we aren’t taught anything other than the fact that you mark a ballot every three or four years, we don’t know how to nominate candidates that speak to our values or that better reflect the diversity in our communities. We don’t understand how the role of joining parties creates a relationship with the caucus because the party creates an interlocutor role between those who are serving in Parliament or in government and those on the ground. We aren’t taught how the act of joining parties entitles us to take part in policy discussions that shape where we want the party and the country to go. All of those are huge ways of engaging in our system of government, but we’re largely not taught them in school, which fuels the disconnect that people feel, which drives people to populists, whoever they may be. Because celebrities are comforting, familiar figures, people will flock to their siren calls, oblivious to the danger of smashing against the rocks they perch upon. It’s why we need proper civics education, so that we can combat the ignorance that fuels the willingness to entertain this celebrity nonsense.

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Roundup: Cyberwarfare oversight concerns

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The University of Toronto’s CitizenLab issued a report on Bill C-59, and the powers that it gives the Communications Security Establishment to engage in offensive cyberwarfare operations, rather than just sticking to being on the defensive. According to their report, these kinds of activities wouldn’t require any kind of judicial oversight – just the sign-off from the ministers of foreign affairs and national defence – and will have little other oversight other than the National Security and Intelligence Committee of Parliamentarians. And as Stephanie Carvin explains below, that’s actually not a bad thing, because offensive capabilities are not the same as intelligence gathering – one of CSE’s other activities.

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And this is pretty much the point – a Crown prerogative doesn’t require the same kinds of oversight, and does not necessarily bind the activities to being Charter compliant because it’s not directed at Canadians, thus is not concerned with their particular rights and freedoms. And as Carvin points out, these kinds of operations have their own particular oversight mechanisms, which are simply different than the once that CitizenLab identifies. It’s perfectly fine to wonder if CSE is really the agency to be doing this kind of work, but that also means asking who else would be doing it, and if the answer is to build new capabilities within the Canadian Forces, is that the best use of scarce resources? Perhaps, perhaps not. It’s certainly a topic worthy of debate, but “no judicial oversight” is not right argument to be making in this case.

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Roundup: Unifying the prohibitions across departments

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The federal government has issued new guidelines for foreign intelligence likely obtained through torture, so that it now covers the Canadian Forces, the Canadian Security Establishment, and Global Affairs Canada. This means that they are prohibited from using such information, except if it’s going to save lives either from an imminent terrorist attack or protecting Canadian troops on an overseas mission. This appears to harmonize direction handed down earlier to the RCMP, CSIS, and CBSA, so that all national security agencies (which are now under the same parliamentary oversight regime and will soon be under an independent arm’s length national security oversight regime) will have the same rules and restrictions. For some, it’s reassuring that the government is taking the issue seriously, but for others, the caveat isn’t good enough, and they need to issue a full prohibition, no caveats, no exceptions, full stop. Stephanie Carvin has more reaction to the announcement here:

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QP: No one is above the law

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With the PM off in PEI to deliver a speech and then off to Newfoundland to do a bit of by-election campaigning, Andrew Scheer opted not to show up either. That meant that it was up to Lisa Raitt to lead off, raising the new headlines around Stephen Bronfman, and demanded to know what assurances the PM had received from him. In response, Diane Lebouthillier gave her usual assurances that they are investigating tax evasion and charges were upcoming. When Raitt demanded to know if Bronfman was under investigation — as though the minister could actually answer that — and Lebouthillier reminded her that the previous government, of which Raitt was a member, cut investigations. Raitt then disingenuously suggested that the PM interfered in an investigation — wholly falsely — and Lebouthillier reiterated her assurances. Gérard Deltell got up to repeat the questions in French, to which Lebouthillier reminded him that she can’t comment on any investigation under the law and that they knew that. After another round of the same, Guy Caron got up to also carry on the Bronfman questions, and Lebouthillier dutifully repeated her points about investigations. Caron repeated in English, and Lebouthillier sharply noted that no one was above the law, and nobody was interfering with any investigation. Matthew Dubé was up next to ask about SS7 vulnerabilities with Canadian mobile phones, to which Ralph Goodale said that this was a CSE responsibility, that they work with telecom companies, and if they needed more of a push, they would get it. Dubé demanded legislative updates to protect Canadians’ privacy, and Goodale assured him that a cyber-review was underway and at least three initiatives would be tabled in the coming weeks.

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Roundup: Uncritical about the playwright’s lament

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Toronto playwright Michael Healy apparently took to the Twitter Machine to plead with the government to ditch their talking points and talk like human beings. Aaron Wherry in turn wrote this up as wondering why politicians don’t talk like they’re on the West Wing, but didn’t actually look at the reasons why message control has taken hold – never mind that nobody actually talks like they’re in an Aaron Sorkin production (because honestly, the sanctimony alone…) But in all honesty, it would have been a useful exercise to see why some of this has become entrenched.

For one, part of the problem is the format of Question Period in the Commons, where the strict 35-second clock makes reasonable answers all-but impossible in most cases. I’ve had staffers tell me that they have to prepare scripts, not because their ministers don’t know the subject matter, but because they need to keep it within those 35 seconds and that’s the easiest way. I can’t say that I’m necessarily sold on that – or too sympathetic – but I can see why the temptation is there.

Part of the problem is the way in which branding has taken hold of politics to such a degree that there is a perceived need to drill slogans into people’s brains – things like “Strong, Stable Conservative Majority™,” or “The Middle Class and Those Looking to Join It™.” One of my pet peeves is “The Environment and The Economy Go Together™” because I know that the minister who keeps saying that is capable of answering questions in a reasonable manner and could do so if she stopped delivering that line, but that’s the message that she wants to drive home. Even though we get it.

And part of the problem is the way that We The Media treat frankness – we punish them for it. Witness what happened two weeks ago when Carla Qualtrough went on CTV’s Question Period, and Evan Solomon picked the $1 billion figure for a possible Phoenix price tag out of thin air, and when Qualtrough said, frankly, that she didn’t know but she couldn’t rule it out, suddenly CTV ran with the “billion dollar” headline, and absolutely everyone else followed suit. It’s now stuck to the Phoenix issue in most headlines, never mind that it wasn’t what she actually said, but her moment of frankness is now being treated as some confession that we will tar the issue with. We The Media have been repeating the mendacious and disingenuous framing devices around the interminable Morneau Shepell questions uncritically – and in some cases, fuelling them in a complete absence of fact of context *cough*Globe and Mail*cough* and anything that the ministers say becomes a trap.

So why, then, would any minister want to be frank in their answers, if we’re just going to punish them for it? Unfortunately, we don’t seem to have the self-awareness to process this – that we are part of the problem that drives this issue to turn all government messages into pabulum. We do this to ourselves. Let’s think about that.

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Roundup: Abandoning a fiscal anchor

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In yesterday’s National Post, economist Stephen Gordon cast a critical eye on the fall economic update and the government’s excuse for running deficits, and the decision to abandon the fiscal anchor of balanced budgets in favour of a declining debt-to-GDP ratio. And rather than worrying about the non-existent debt-bomb, Gordon is mostly looking for answers why the policy shifted post-election. Fair enough. (He also does the math on how much more a government can spend by shifting the fiscal anchors like the government did here).

Enter fellow economist Kevin Milligan, who digs through and finds an answer. Enjoy.

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Roundup: Morneau’s pabulum problem

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Oh, Bill Morneau. After weeks of rough treatment, and the last week most especially, it’s no wonder that he was getting a bit testy when the questions kept coming up yesterday. That he snapped at a journalist just got our backs up because how very dare he, and so on. But it’s hard not to see how this is almost entirely a mess of his own making. Not just the fact that he didn’t divest his shares earlier, which make of that what you will – he was still within the law. I find myself ambivalent to the sanctimonious cries that he needs to appear to be whiter-than-white because that’s a Sisyphean task for which there will never be satisfaction short of being reduced to sackcloth and ashes, especially compounded by the oh-so-Canadian reflex of treating him like a tall poppy who must be brought down to size. The Conservative line that he’s a rich guy who can’t understand the woes of the working guy is certainly suffused with that narrative, but that’s also populism for you.

For me, the bigger problem is that so much of this is about the fact that it all goes back to this government’s particular communications problem of responding to everything with a spoonful of pabulum rather than taking their criticisms head-on. When the Conservatives launched into outright falsehoods about the proposed tax changes, Morneau didn’t fight back – he mouthed the same platitudes and shovelled more pabulum in our faces, and the myths metastasised until he was playing defensive when there was no reason for him to. That the CRA bungled their release of the folio on employee discounts just fed into this same problem, and again, the government couldn’t communicate their way out of a wet paper bag there either, sticking to the pabulum lines of not taxing the middle class rather than actually explaining that no, these are very specific circumstances that won’t actually capture retail workers. And given the current questions around his holdings, there are certainly better ways that he could have communicated decisions that were made (including why a blind trust would not have made sense, for example), or why the various conspiracy theories about how legislation or tax changes he’s proposing are apparently for the benefit of his company are patently absurd (because hey, attacking the messenger is always the sign that you’re on the winning side of the argument). But nope. Pabulum. And you would hope that maybe, just maybe, the government will learn that this is not the way to go about communicating, but I doubt it. They’ll probably hold tight and weather this manufactured outrage for another week or so until something else distracts the opposition, and the outrage cycle will start up again over something else, for which the government’s solution will be yet more pabulum. It’s tiresome from all sides. But this is what politics has devolved into.

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Meanwhile, Andrew Coyne castigates Morneau for his poor judgment, while Colby Cosh thinks of him fondly as a great quasi-Albertan for using a numbered company registered in that province, paying taxes there and giving back to the province’s economy.

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Roundup: Unleashing the two-year markers

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With it being the two-year mark since the 2015 election, we’re going to start seeing a wave of thinkpieces and columns over the next few days (I suspect there will be a glut of weekend columns of dubious quality on the topic), but Paul Wells got things off to a good start yesterday with his piece on the matter. And he makes some pretty good points about how the complaints that this government hasn’t done anything are off the mark, because I do believe there are a number of things that we forget with our short attention spans, but there are also things that we don’t see obvious signs of, where the government has reformed a lot of the processes by which things get done – and this is a particularly big issue when it comes to trying to move the various Indigenous files forward. While it looks like there has been halting progress, people ignore that many of the problems are capacity-related, so if the government is moving to address those fundamental issues, it leads to better outcomes later than simply throwing money at problems only to make them worse in the long run – which happens all too often.

But Wells also acknowledges the bad, and just like with any government, there’s a lot of that too – the appointments process is a notable example, and Wells points to the bottleneck in the PMO, which goes along with the glut of rookie ministers (unavoidable with so few experienced MPs in caucus), and the problem with messaging. As I wrote about earlier this week, there is a real problem with the way this government shovels pabulum at everyone, but I’m not sure it’s any worse than under the previous government, when you were treated to non sequiturs rather than vague answers that resembled the topics you were asking about. And it’s this inability to have forthright communications that created much of this tax mess as well (but I will also lay some blame on bad and lazy reporting that was too quick to lean on opposition talking points as examples of accountability rather than reaching out to experts and then using that to push back against the tidal wave of misinformation that came out). And most especially the fact that this government was unwilling to actually fight back against the misinformation is why this mess of their own making has been compounded even more so.

“But it’s hard to be entirely saddened by Trudeau’s current discomfort, which if nothing else might shake his team out of the towering sanctimony that characterizes too much of its action and rhetoric,” Wells writes, and I fully agree. In fact, it’s the moments in the past couple of weeks where Trudeau and his ministers have dropped their pabulum-like talking points and been punchier and more authentic in their fighting back against their attackers that I’ve seen a spike in public responses to my own reporting of those instances. Hopefully they’re seeing that too, and it’ll prompt them to take more risks and to stop being so gods damned scripted. But this is also politics in 2017, and we’ve killed off spontaneity or the ability to debate, so I fear that my hopes for honest communications are doomed.

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Roundup: Shadow ministers vs critics

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Conservative leader Andrew Scheer is set to release his full critic list today, not only to be dubbed as a shadow cabinet, but with plans to style the critics as “shadow ministers.” Now, this is normally the kinds of British/Westminster nomenclature that makes me feel all warm and fuzzy inside, which is why I suspect that a fanboy like Scheer is doing it, but I would raise a particular note of caution – that unless Scheer plans to actually have his “shadow minsters” act in the way that Westminster shadow ministers actually operate, then it’s going to quickly come across as a twee affectation.

So what kinds of differences would matter between a British shadow minister and a Canadian critic? For one, it’s a far more institutionalised role, where a shadow minister plays the function of someone who is able to fill the cabinet role immediately if the government were to fall, rather than the kinds of placeholders that we’ve come to expect in Canadian critic roles. Shadow ministers, in my observation, tend to be in place for a fairly long time and develop expertise in the portfolio, and they have more structured time to visit the departments and get briefings from civil servants, which doesn’t seem to be the way that Canadian critics operate (who do get some briefings, but in my estimation, are not to the same level). Of course, one of the reasons why is that cabinet construction in the UK doesn’t have to deal with the same regional considerations that Canada does, so it’s far easier to have someone who was in a shadow cabinet position slide into cabinet, whereas in Canada, the federalist calculations may not work out.

Another key difference is that UK shadow ministers are not members of select committees, whereas in Canada, critics are leads for their party on standing committees. Why this is different is because in the UK, it not only lets the shadow minister spend more time with their portfolio, but it gives the committee members more independence because they don’t have the lead on the file shepherding them. Just by numbers alone, I’m guessing that this isn’t going to happen here (another advantage to the UK’s House of Commons having 650 members instead of 338). One could also remark that the current Conservative Party in Canada hasn’t demonstrated a great deal of willingness to give committees a great deal of independence (especially seeing as they turned them into branch plants of the ministers’ offices during the Harper years), but who knows? Maybe Scheer is more serious about it. But unless he wants to reform the way his critics operate, then I’m less sold on billing them as “shadow ministers.”

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