Tag Archives: Marijuana

Roundup: Protecting parliament from court interference

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The decision in Mikisew Cree First Nation v. Canada (Governor General in Council) at the Supreme Court of Canada yesterday has been described in some cases as relieving the government of the Duty to Consult Indigenous communities when preparing legislation, but I think some of that misses the very real issue of the separation of powers and parliamentary privilege – particularly when the news channels would immediately trot out Indigenous lawyers to say that this was an infringement on the Duty to Consult, and that it was a “missed opportunity” to get legislation right, and so on. (And lo and behold, here’s Pam Palmater to argue just that, and I find her analysis flawed). In fact, the CBC piece on the decision buried the aspect about separation of powers at the very bottom of the piece, despite the fact that it’s at the heart of the ruling.

To recap, the separation of powers is the doctrine that the executive, legislative, and judicial branches have different roles and you shouldn’t have them meddling in one another’s business, which is exactly what the case was proposing to do – to allow the courts to weigh in on legislation before it’s been passed, or in this case, even been drafted. That’s a huge overreach by the courts, and a giant infringement on parliamentary supremacy. Why that’s especially important is because we’re seeing a growing movement of people who try turning to the courts when they lose at politics, which is very bad for democracy. (In fact, it appears that the Mikisew are engaging in a bit of that very thing here, objecting to the changes to the changes to environmental assessment legislation). If the Mikisew had their way, it would allow for the courts to weigh in on the legislative process at all points, which not only makes legislation impossible, but it means that parliament can no longer govern its own affairs, which is a very bad thing. Of course, there were many differences of opinion between the justices as to how this all shakes out, but they all agreed that the courts have no role in interference in the legislative process, and I don’t think that was highlighted nearly enough.

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This being said, they did affirm that the Duty to Consult is still necessary – just that it didn’t need to be mandatory before drafting legislation. Smart governments who take the Duty seriously would do so in the planning stages of legislation, and there are opportunities to engage in consultation during the legislative process, particularly at committees, when amendments can be proposed that would assist with accommodation. Emmett Macfarlane also suspects that we could see the Senate take a more active role in ensuring proper consultation as it weighs in on bills as well, which could be an interesting evolution in the Senate’s activities as we move forward with its “new” characteristics.

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Meanwhile, Philippe Lagassé digs into Justice Brown’s reasoning around the Crown’s distinct capacities. Here is a thread from Emmett Macfarlane on his thoughts on the decision. And here’s University of Ottawa law school vice dean Carissima Mathen to explain the decision.

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Roundup: Yet more dubious suggestions hosted by the GRO

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Over on the Government Representative Office website, Government Leader in the Senate – err, “government representative” Senator Peter Harder has been hosting suggestions from former senators of late on how to “reform” the Senate. Because of course he has. And not all of the suggestions are particularly helpful, or good for the Senate in the long run. The latest example is from Senator Pierre De Bané, who was a senator for thirty years and an MP before that. De Bané seems to think that what the Senate needs more than anything is the independent oversight body that the Auditor General wants instituted before voluntarily neutering its powers by passing a motion to only use a suspensive veto. Because hey, if it’s good enough for the UK…

I’ve written numerous times that the notion of an independent oversight body risks the senate’s status as a self-governing parliamentary body. I would be okay with an audit committee that includes outside members but is still made up with a majority of senators in order to ensure that it remains in Senate control because it’s important that our parliamentary bodies retain self-governing status. Otherwise we might as well turn power back over to the Queen, because we obviously have no business governing ourselves. I’m also forever baffled by the notion that we should neuter the Senate’s ability to exercise hard power and defeat a bad government bill when necessary. It’s part of their necessary duties to hold government to account, and before you say that it’s good enough for the House of Lords, the Canadian Senate is a vastly different body than the Lords, with a very different history, and the Senate was never the primary legislative body as the Lords was for centuries. These are differences that can’t be papered over.

De Bané’s other suggestion is that the Senate start creating a series of special committees tailored to senators’ special interests to…do advocacy work, apparently. I’m not opposed to senators undertaking an advocacy role on issues that are of particular interest to them, I am less keen on the proliferation of special committees because I worry that it will draw the focus away from the actual legislative responsibilities of senators – especially in an environment with independent senators who are beholden to nobody and who aren’t able to be corralled into getting work done. We’re already having problems getting bills passed in a timely manner because the leadership within the Senate refuses to do things like negotiate with one another – now imagine that these senators are otherwise engaged with busywork of their own interest rather than with the boring work of scrutinising legislation or holding government to account. I do fear that creating an environment where personalized committees can proliferate will have a detrimental effect on the Senate overall, and I’m a bit surprised that a former senator doesn’t see this possibility.

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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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Roundup: A new NAFTA

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Apparently, we have a NAFTA deal. Or “USMCA,” as Trump wants to call it, because that’s so much better. After a weekend of negotiations and a 10 PM emergency Cabinet meeting last night, everything was The “senior sources” are saying that dairy access will be around what was negotiated for the original TPP (or maybe a little more) along with eliminating the “Class 7” pricing, but we managed to keep the cultural exemptions and dispute resolution mechanisms, so that’s something. What we apparently didn’t get were any new guarantees around those steel and aluminium tariffs, so that’s less of a good thing. More details are due to be announced this morning, for what it’s worth.

And now for the Conservative shitposts to begin, and Michelle Rempel has offered us a taste of what’s to come. Because remember, they’re the “grown-ups” in the room.

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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: Her Excellency’s many issues

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The floodgates have opened, and stories about the difficult first year that Her Excellency Julie Payette has been having as Governor General have been fast and furious. From concerns that she’s still living at Rideau Gate rather than Rideau Hall despite there being renovated living quarters now available, to concerns about her not telling her security detail where she’s at, the concerns on the ground that she’s breaking convention by not visiting every province in her first year, were all warm-ups for this wide-ranging piece in the National Post that compiles a lot of the things we’ve been hearing unofficially in Ottawa, about what a struggle the year has been. While some of it is growing pains, and some of it are potentially unfair comparisons to having previously appointed Governors General who were superhuman in their ability to take on a volume of work (and in the case of someone like Adrienne Clarkson, write all of her own speeches for 500+ engagements in a year), I was particularly disturbed by the fact that the Liberal Research Bureau was doing the background checks and vetting for the appointment when Trudeau should have kept the Vice-Regal Appointments Committee in operation (and the only reason anyone can think as to why he disbanded it was that it was Harper’s creation and it was simply an act of pettiness). The fact that they didn’t properly prepare her for the role is also a big red flag as to the seriousness with which they undertook the process and the decision. I hope that these are just growing pains and that they’ll sort themselves out, but given how badly this government has managed its appointment processes so far, it really leaves one questioning some of the competence of the senior ranks of this government.

If there’s a silver lining to all of this, I would say that I hope it means that it might encourage some of these charities and organisations that the GG used to be the patron of might look instead to members of the royal family. This could very well be a golden opportunity to start re-forging some links with our monarchy, and getting more royals on our shores to have a lot more face-time and remining both royals and Canadians that we have bonds that need to be strengthened, lest they atrophy. It’s also a particularly good time given the addition of Megan, Duchess of Sussex, to the family, and the fact that she spent that much time in Toronto gives her that connection already, and we should be capitalising on it (not to mention the fact that Camilla, Duchess of Cornwall, has Canadian ancestors including a pre-Confederation Prime Ministers, and we should be milking that connection for all it’s worth too).

Meanwhile, here’s a look at Payette finally getting to Humbolt, Saskatchewan, six months later, and the fact that she’s been reluctant to visit other sites of tragedies, like Fredericton after the recent shootings there.

Special note: If you’re concerned about the tornado that hit this area, they were to the west of Ottawa, and across the river in Gatineau, and nowhere near the Parliamentary precinct. I wasn’t affected, and my power didn’t go out (hence why you’re getting this morning’s roundup).

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QP: Not misleading, just misinformed

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On a cooler and less humid day in the nation’s capital, things proceeded apace in the House of Commons, and there was far less drama to start off the day. Andrew Scheer led off, mini lectern on desk, demanding to know why the counter-tariffs the government collected haven’t been funnelled directly to business that have been affected by the US tariffs. Justin Trudeau responded that the government was supporting affected industries, but also things like innovation. Scheer then started on his “failure” talking points with regards to the Trans Mountain pipeline, to which Trudeau shot back about the ten years of failure from the previous government, particularly around respecting First Nations. Scheer switched to English to ask again, and Trudeau insisted that growing the economy and respecting both the environment and Indigenous communities went hand in hand. Scheer railed about pipelines line Energy East not getting built, and Trudeau stepped up his rhetoric about not respecting First Nations. Scheer then spun a bunch of nonsense about carbon taxes, and Trudeau didn’t correct Scheer’s mischaracterisation, but responded with some platitudes about paying for pollution. Guy Caron was up next to lead for the NDP, and concern trolled about the effect on Supply Management with TPP, to which Trudeau insisted they were keeping the system intact. After another round of the same, Tracey Ramsey repeated the questions in English, and got much the same response from Trudeau, who added that they got better a better deal than the Conservatives did. On another round of the same, Trudeau insisted that the NDP didn’t want any trade deals, and the Conservatives would sign anything, but he would only sign a good deal, and that included NAFTA.

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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: Mandate letter madness

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Yesterday was the big day that the mandate letters for the new cabinet minister were finally released, and the Cabinet committees got a bit shake-up. You can get an overview of the letters here, and some deeper analysis on what’s being asked of Jim Carr in international trade, Dominic LeBlanc in intergovernmental affairs, and Jonathan Wilkinson in fisheries. Reading through the letters, however, I found that almost all of the new letters – either with established ministries or with the new ones that they are establishing – were all giving them specific direction on which other ministers they should be working with to achieve specific goals. Very few of them were goals that they were to pursue on their own, which I find to be very curious from a governance perspective.

The big question mark remains around Bill Blair and just what he’s supposed to do as Minister of Looking Tough on Stuff – err, “border security and organized crime reduction.” We got no insight as to whether he has any actual operational control over a department or an agency like CBSA. Rather, his list of goals included looking at a ban on handguns and assault rifles as part of the existing Bill C-71, and that as part of his duties in relation to the border, he should have discussions with the Americans about the Safe Third Country agreement, but it was all rather vague. (There was also some talk about opioid smuggling as part of his border security duties, for what it’s worth). Nevertheless, it was another one of those letters that was focused on which other ministers he’s supposed to be working with as opposed to providing oversight of a ministry, which I find weird and a bit unsettling as to what this means for how the machinery of government works under Trudeau.

Meanwhile, the number of Cabinet committees was reduced, and some of the files that certain of these committees were overseeing got shuffled around. We’ll see how this affects governance, but it’s all a peek into the sausage-making of governance (which, it bears reminding, that the Ford government in Ontario refuses to give any insight into as he refuses to release his own ministers’ mandate letters).

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Roundup: NAFTA theatrics

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Yesterday was big for NAFTA news, as the Americans and Mexicans resolved their bilateral differences, particularly around autos, and made progress on getting concessions on the American demands for a sunset clause. But, true to form, US President Donald Trump started spouting a bunch of nonsense about how Canada was on the sidelines, and if we didn’t accept a deal by Friday, he’d slap tariffs on our autos, and so on. The problem there – that he has no congressional authority to conclude a bilateral agreement without us (and indeed, outgoing Mexican president Enrique Peña Nieto kept saying that they were waiting for Canada to rejoin negotiations), so it’s a lot of bluster. Nevertheless, Chrystia Freeland cut short her diplomatic trip to Europe and is headed for Washington today, and trilateral talks will resume, and there’s likely to be a heavy focus on dairy as Trump has become fixated on it. This all having been said, have the Conservatives been pleased by the progress made? Funny you should ask.

First of all, the language in both is that it includes Trudeau’s name and the word “failure,” which is their narrative-building exercise (and Hamish Marshall can give them a cookie for sticking to it). But more importantly, as Kevin Carmichael notes, the Conservatives have been backing the government’s strategy to date on this. Of course, Andrew Scheer made a big deal during his big speech on Friday to insist that the Conservatives were going to be the adults in the room on foreign policy (which is risible considering the bulk of their record), but it also defies the reality of the situation. Even John Baird called bullshit on this line of reasoning – there was no reason for Canada to be part of those particular discussions, and this hasn’t really put us in a weakened position, and for all of the Conservatives’ sniggering about the labour chapter that Freeland has been advocating, wages were a big part of this deal that was struck with Mexico. (It’s also adorable that Erin O’Toole tries to make out that the Liberal strategy is all about domestic political posturing, which is exactly what he’s engaging in with his press release).

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In the meantime, industry players in Canada are looking for more details, while Philippe Couillard is vowing not to accept any compromises that will affect Supply Management, so that could be fun while the Quebec election rolls along.

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