Roundup: Sensation over nuance

The big headline over CBC yesterday was that five of the six most recent federal judicial appointments in the province of New Brunswick all had some kind of ties to Dominic LeBlanc – never mind how tenuous those ties were. This of course led a bunch of Conservative apologists to compare this with the Dean French/Doug Ford situation in Ontario, which is absurd given that judicial appointments have a more rigorous merit-based system around them (more rigorous than it was under the Conservative era), and many of the French/Ford appointments had to do with whether someone was connected to French by family or lacrosse, many with no obvious competences in the roles they were appointed to. The Conservatives also declared that this was somehow related to both Loblaws winning a competition around fridge refits (no, seriously), and that this was reminiscent of the Arctic surf clam contract that LeBlanc was involved in wherein the definition of “family” used by the Ethics Commissioner differed from that in other statutes. (Not mentioned was the time when the Conservatives appointed most of Peter MacKay’s wedding party to the bench in Nova Scotia).

Reading deeper into this story, I found that some of the connections that were being highlighted were a bit dubious. The most dubious was the fact that one of the judges named was not actually someone that was recently named, but rather promoted to the Chief Justice of province’s Court of Appeal by Trudeau, though she was originally a Conservative donor and had been first named to the Bench by Harper. The fact that she bought a property from LeBlanc next to his summer cottage was deemed to be curious in this. Likewise the fact that two of them were part of a group that paid off LeBlanc’s leadership campaign debts a decade ago (each would have donated a few hundred dollars) is a pretty dubious link between them. The only one that might raise eyebrows is the fact that one of the five is married to LeBlanc’s brother-in-law…but even then, at what point do we start disqualifying someone whose relation is by marriage twice-removed?

The other bit of nuance that we can’t forget here is that New Brunswick is a very small province with a very small population, and legal circles in a province like that would be very tight – especially when you consider that the provincial political culture is far more nepotistic than the federal culture is. While the CBC piece cites a paper that says that people with political connections get judicial appointments at a rate double that in other parts of the country, but one has to remember that it can be harder to avoid, which is why fighting nepotism in those places can be much harder. And this is the point where people will bring up the fact that Jody Wilson-Raybould objected to the fact that names that were short-listed needed to be sent to PMO for vetting by the Liberals’ database, but again, it needs to be stressed that they need to go through all sources to check for red flags because the prime minister is politically accountable for those appointments. It’s called Responsible Government. Does that mean that these five appointments didn’t have some influence from LeBlanc tapping the justice minister and saying he wanted them appointed? Anything is possible, but it’s unlikely given the vetting process and the fact that most of these connections are tenuous at best. But it’s also regrettable that this kind of journalism strives for sensationalism and an attempt at being gotcha than it is with nuance.

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Roundup: The menace of ignorant premiers

Occasionally a politician will say something so blindingly wrong and stupid that it makes me incandescent with rage, and yesterday the honour went to PEI’s new premier, Dennis King, who believes that because he’s in a hung parliament that he’s “not the government,” but that “we’re all the government.”

And then my head exploded.

King is the premier, which means he’s the government. And for him to try and abrogate his responsibilities in the face of questions from the opposition is a sickening lack of civic literacy and frankly spine. Trying to shame the opposition into “collaborative government” is frankly trying to avoid accountability. After all, when everyone is accountable, then no one is accountable, and that’s not how our system works. He’s the premier. He is responsible to the legislature for the decisions that the government makes, and while he’s trying to launder them through the opposition in the name of “collaboration,” that’s not how the system works. It doesn’t matter if it’s a hung parliament – that only means that he needs to work harder to secure the support of the opposition, not that they are in government with him. And yes, I’m enraged by this because he and everybody else should know better.

Alberta extremism

On another topic, this story out of Edmonton about extremist billboards calling for civil war against the rest of Canada, and promoting conspiracy theorism and outright lies about Justin Trudeau is extremely concerning because this is how illiberal populism happens. And Jason Kenney has a direct hand of responsibility in this, both by selling lies about the province’s situation and about what Trudeau is and is not doing, and by selling them snake oil in a bid to keep them angry because that’s how he gets votes. But as the anger won’t dissipate now that he’s in charge, he’s forced to try and keep the anger going in one way or another and hope that it doesn’t blow up in his face – hence why he’s inventing new grievances by things like his sham Senate “elections” – because unless he keeps trying to point that anger to new enemies, it will turn on him. I really don’t think he appreciates the monster he’s created, and these billboards are a warning sign that needs to be heeded.

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Roundup: Nepotism versus Responsible Government

As the nepotism scandal in Ontario picks up steam, with revelations that there were appointments made to lacrosse players and an MPP’s father, and more demands that there be a more independent review of the appointments that have been made, I think it’s time for a bit of a civics and history lesson about patronage appointments. In many ways, patronage appointments are how we wound up with Responsible Government in the colonies that became Canada in the first place – the local assemblies wanted control over who was being appointed to these positions rather than them going to people from the UK who would then come over to carry them out, and eventually we won that right as part of Responsible Government. It was also understood at the time that it was fine if the party in power put their friends into patronage positions because when fortunes turned and their rivals formed government, they would be able to do the same with their friends. That particular view we have, fortunately, evolved from.

Regardless of this evolution, the core fact remains – that under Responsible Government, it is the first minister and Cabinet who makes these decisions as they are the ones who advise the Governor General/lieutenant governor to make said appointment. It also means that they are accountable to the legislature for that advice, which is where the current nepotism scandal now hangs. There are going to be all kinds of Doug Ford apologists who say that this was all Dean French, that Ford didn’t know what was going on – even though he signed off on it. And that’s the thing. It doesn’t matter if this was French hoodwinking Ford because Ford is the one who advises the LG about the appointments, and Ford is responsible to the legislature for making those appointments (and for hiring French, when you think about it). And if his party gets too embarrassed by this particular scandal, well, there could be a loss of confidence in the offing (likely from within party ranks than the legislature, but stranger things have happened).

https://twitter.com/MikePMoffatt/status/1143639086231633920

On that note of accountability, we should also point out that with the appointment of yet more ministers and “parliamentary assistants,” there are a mere 27 MPPs left in the back benches who don’t have a role, which means that they will see themselves as one screw-up away from a promotion (and this is more salient in the provinces, where regional balances are less of an outright concern, and this government in particular seems less interested in other diversity balances). That does erode the exercise of accountability by backbenchers. So does, incidentally, a chief of staff who would berate MPs for not clapping long enough, but maybe they’ll grow a backbone now that French is gone. Maybe.

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Roundup: Principle over circumstance

After a weekend of yet more wailing and gnashing of teeth about the Omar Khadr settlement, and despite detailed explanations from the ministers of justice and public safety, and Justin Trudeau reminding everyone that this is not about the individual circumstances of Khadr himself but rather the price of successive governments who have ignored the Charter of Rights and Freedoms, we’re still seeing a number of disingenuous talking points and facile legal analysis from players who know better. Here is some of the better commentary from the weekend.

https://twitter.com/aaronwherry/status/883736382602194944

https://twitter.com/aradwanski/status/884024742826696704

https://twitter.com/cforcese/status/884031425862828032

https://twitter.com/stephaniecarvin/status/884031824783126528

A number of people over social media have insisted that treatment of Khadr, including the “frequent flier” sleep deprivation technique used to “soften him up” before CSIS agents arrived to question him, or the fact that he was strung up for hours to the point of urinating himself (and then used as a human mop to wipe it up) or being threatened with gang rape didn’t constitute torture.

https://twitter.com/cforcese/status/884047890003505152

https://twitter.com/cforcese/status/884051777850617856

https://twitter.com/cforcese/status/884052141417037825

There was some particularly petulant legal analysis from former Conservative cabinet ministers that got pushback.

https://twitter.com/StephanieCarvin/status/884078867006320640

https://twitter.com/AaronWherry/status/884091668940677120

https://twitter.com/StephanieCarvin/status/884214974809296898

https://twitter.com/InklessPW/status/883432269976940544

And of course, the broader principle remains.

https://twitter.com/stephaniecarvin/status/884029627546599424

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Roundup: Virtue signalling over Khadr

It’s official – Omar Khadr got his apology and settlement, but the terms of which are confidential (as is par for the course in most settlement offers), and now the Conservatives are really steaming mad. For his part, Khadr says that he hopes the apology and settlement will restore a bit of his reputation and help people take a second look at his case to see that there was more going on, but also notes that he is not really profiting from his past. While the ministers where quite neutral in their tone, when the parliamentary secretary accompanying them translated in French, he took the partisan shots that the government didn’t, which was odd. Later in the evening, the government put out further clarifications, no doubt bombarded with accusations of bad faith.

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https://twitter.com/cochranecbc/status/883477490399928321

Later in the afternoon, Andrew Scheer took to the microphones to offer a take so utterly disingenuous that it borders on gob-smacking. Essentially, he argued that a) they should have spared no expense in fighting Khadr’s suit, and b) that the remedy for the Supreme Court of Canada decisions around Khadr was his repatriation, which is a complete and utter fabrication. And there’s a part of me that would have like to see them argue that case before the Supreme Court, if only to watch the justices there flay them before laughing them out of the room.

https://twitter.com/aaronwherry/status/883381110285225985

https://twitter.com/aaronwherry/status/883385583233531906

https://twitter.com/AaronWherry/status/883385763634831360

https://twitter.com/aaronwherry/status/883410380277645312

And then the rest of the weighing in, including Stephen Harper, who wanted to pin the blame on the current government, while Conservatives continued to virtue signal that no expense should be spared to give the appearance of fighting terrorists, never mind that this decision is about Khadr’s Charter rights being violated. For a law-and-order party to decide they want to cherry pick which Charter rights don’t apply to people they consider icky, well, that’s a pretty big problem right there.

https://twitter.com/emmmacfarlane/status/883467740325052416

https://twitter.com/EmmMacfarlane/status/883468432578097152

Here are some further legal opinions on the settlement, while Craig Forcese offers a reminder of some of the legal points at play, including where successive governments screwed up and made this settlement necessary where they could have repatriated him earlier and put him on trial here, an opportunity now lost. There is also a reminder that the government didn’t disclose the details of earlier settlements with former terror suspects who were cleared of wrongdoing. Terry Glavin has little patience for how this was handled on all sides, while Susan Delcarourt sees signs that people are still open to being convinced about Khadr.

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Roundup: Lighting a fire under the minister

It’s been a year since the Supreme Court of Canada decision in Jordan, which set upper limits for trial delays, and so The Canadian Press had a couple of good pieces on it today, both looking at the fallout in terms of what needs to change in the justice system, as well as looking at the numbers of cases that have applied or been granted a stay of proceedings owing to delays that have been deemed unreasonable. I will note that while justice minister Jody Wilson-Raybould says that the decision “lit a fire” under her, she’s been agonizingly slow in responding.

I write a lot for the Law Times, and I talk to a lot of players in the legal community, and there has been a sense of mystification as to what all of the delays are. The fact that it took her a year to start the process of reforming how judges are appointed was baffling, and that slowed down the process for making said appointments – especially as some of the committees advising on appointments still aren’t up and running, six months later. While more appointments are finally being made, it’s taken a long time and it’ll take even longer for those judges to be fully prepared and worked into the system.

There is the legislation that has been coming out in drips and drabs. For example, they made a big deal about a bill that would finally equalise the age of consent for gay sex, but then abandoned said bill to roll those provisions into a larger bill on doing away with “zombie laws” that have been struck down but remain on the books. How much time and energy was spent on that abandoned bill? We keep hearing about the big promised justice reforms promise – looking at the Criminal Code, sentencing, bail, the works, but we’re nearly two years in, and there’s still no sign of them. Yes, they’re big files, but this is nearly the halfway point in the mandate, and big, complicated files like that are going to take time to get through Parliament – especially in the more independent Senate where they will face pushback from law-and-order Conservatives who are looking to hold onto the “reforms” of the previous government.

And then there are the whispers about Wilson-Raybould’s office. There is a constant churn of staff, but not before great delays when it comes to actually filling positions, like the judicial affairs advisor – a pretty key role that took months and months to fill. And if these kinds of necessary staffing decisions are taking forever, what does that mean for the managerial skills of the minister? There are whispers in the legal community, and they’re not too flattering. So when Wilson-Raybould says that Jordan lit a fire under her, one shudders to think about the pace of progress had it not.

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Roundup: Rural nomination angst

In yesterday’s Hill Times, a few would-be Liberal candidates in rural ridings are talking about how they want nominations to start sooner than later, citing the challenges of rural life when it comes to door-knocking – owing to the difficulties of travel in the winter, the best time for them to meet constituents is in the summer and autumn. Hence, they want the nomination process to be over before summer 2018, so that they have a long lead-time to do the campaigning in large rural ridings – something that is less of an issue in urban ridings.

As far as suggestions go, it’s not a terrible one. I think that parties should have a fairly long lead-up with a nominated candidate, particularly in unheld ridings, so that they can do the work of grassroots engagement and get people involved in the process. This also being said, in a riding that has an incumbent, you also don’t want to run the nomination too early because an open nomination is also a way to hold that incumbent to account by their grassroots members, so if you hold the nomination too early, you don’t get as much of their tenure to judge them by. I know that some Liberals are agitating to have their nominations protected, while Conservatives have a threshold system in place to protect their nominations (which I am less keen on because it can short-circuit accountability), but I also know that the Liberals haven’t made up their minds how they’re dealing with nominations for 2019, which boggles the mind. Of course, this is part of the fallout of their wholesale party constitution rewrite (which, I will remind you, centralised even more power in the leader’s office at the expense of the grassroots), so we’ll see how they decide to deal with this, and how much lip-service they pay to the grassroots while still keeping their newly acquired centralized power. Suffice to say, nominations remain the most important part of our democratic process, so watching a party flail about it is never a good thing.

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Roundup: The looming retirement of the Chief Justice

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

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https://twitter.com/EmmMacfarlane/status/874344925613219845

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

https://twitter.com/EmmMacfarlane/status/874346587820089344

https://twitter.com/EmmMacfarlane/status/874346899305836544

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

https://twitter.com/inklesspw/status/874350151728599040

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

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QP: Carbon taxes and foreign takeovers

On a sweltering day in Ottawa, things carried on as usual in the House of Commons. Andrew Scheer led off, railing about carbon taxes killing the manufacturing sector, never mind that in his Ontario example, it was a provincial carbon price. Justin Trudeau hit back with jibes that it was good to see that most of the aconservaties believed in the Paris Accords and that carbon pricing was good for the market. Scheer groused that they would meet the targets without a carbon price, before moving onto the Norsat sale and lack of a comprehensive security screening. Trudeau reminded him that they took the advice of national security agencies. Scheer took a second kick, needling that Trudeau admired Chinese dictatorship too much to care about national security, and Trudeau lashed back that partisan jibes like that were unworthy of this place. Denis Lebel was up next, demanding a non-partisan process to appoint parliamentary watchdogs, and Trudeau noted their new appointments and rattled off some of the diversity of the new reports. Lebel tried again in English, and got the same answer. Thomas Mulcair was up next, asking if the Der Spiegel article was true that the government was backing away from climate goals at the G20. Trudeau insisted that they have been climate leaders and pointed to examples. Mulcair pressed, and Trudeau was unequivocal that he did not say what was in the article. Mulcair then turned to the issue of court cases involving First Nations children and dialled up the sanctimony to 11, and Trudeau noted the memorandum of understanding he signed with the AFN this morning about moving forward on steps. Mulcair demanded that the NDP bill on UNDRIP be adopted, but Trudeau insisted they were moving forward in consultation (never mind that said bill is almost certainly of dubious constitutionality).

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Roundup: Party fault lines

With social conservatives trying to stake out turf, along with Kellie Leitch’s “Canadian values” testing, Michael Chong’s Red Toryism and Maxime Bernier’s Freedom!-crying Libertarian-ish-ism, the question has been posed as to whether the Conservative leadership is opening up old schisms in the party. And the answer I would surmise is that probably, and it’s almost inevitable that it would. The party is a fairly big tent with some big divisions that got patched over by Stephen Harper in his quest to take down the Liberal party, and at the time, he was able to get enough disaffected factions together to do just that and keep them together while they achieved power, because power is its own reward. But now that they’re no longer in power, with Harper no longer at the helm, and the conditions that predicated his leadership have moved on, it’s not surprising in the slightest that these factions are now getting restive and trying to find different leadership camps to rally around. It’s not uncommon, and I have to wonder if there is anyone with enough personality and charisma to keep the factions together, given that there seems to be little appetite for another Harper (not that one could really be found among the current crop of leadership candidates). One could add that it should be a warning to Jason Kenney that the same conditions that allowed for the Conservative unification federally may not exist in Alberta given the history and challenges of the separate parties there. I would also note that given the diversity of views to be found in that big tent, this is likely not a discussion that we would be having if Canada were to adopt a Proportional Representation voting system. There, each faction would be more likely to splinter off into its own party in the hopes of forming an external coalition with more leverage for trying to achieve their goals rather than the internal coalitions that exist in big-tent brokerage parties currently, which moderate the excesses of the various factions in the hopes of achieving government. It’s one of those reasons why we need to be sceptical of those poll analyses that would show how the election might have gone under another system, given that it’s not likely that our parties would continue to exist in the same way under a different system.

Meanwhile, in case it was keeping you up at night, Kevin O’Leary continues to say he’s waiting to see who else is running before he announces if he’ll make a leadership bid of his own.

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