Tag Archives: MIke Duffy

Roundup: Cluelessly disparaging parliamentary privilege

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Sometimes you read an op-ed so clueless that it burns. This piece by lawyer and part-time law professor Daniel Tsai about the Mike Duffy lawsuit is one of those pieces. Tsai argues that the lawsuit is an opportunity for the courts to make changes to the Senate that, according to him, will make it “more accountable.” As his evidence, he cites statements from Government Leader in the Senate – err, “government representative” Senator Peter Harder darkly musing that some senators may want to protect their friends, and Senator Marilou McPhedran’s quest to root out harassment in the Senate as “proof” that the problem is the Senate’s parliamentary privilege. But he also cites former Senator Don Meredith as a case of harassment without also acknowledging that it was because the Senate has parliamentary privilege that they’re able to discipline their own, and that they had recommended expulsion for his breaching the Senate’s ethical code, and that forced his hand to resign. This is a feature, not a bug.

The whole piece demonstrates that, lawyer or not, Tsai doesn’t understand what privilege is, the importance of Parliament’s need to be self-governing (if it’s not, we might as well just turn power back over to the Queen), or the fact that the institutional independence of the Senate (which allows it to hold the government to account) requires it to have a robust set of privileges that can police its own members rather than subject the institution to threats of lawsuits from its various members when they’ve feeling sore by the fact that they’ve been disciplined. Weakening privilege won’t make the Senate more accountable – it will make it vulnerable to vexatious litigation, and along the way, weaken the House of Commons’ own parliamentary privileges as well (because the privileges of the Senate and the Commons are inextricably linked).

None of this is to suggest that the Senate is perfect – it’s not, and there have been bad apples that generally have been made to resign when the going gets tough. Tsai completely ignores the constitutional role of the Senate and the way in which it’s constructed with a defined purpose in mind in order to engage in some populist pandering to the myths that surround the institution. His “solution” about a judicially-imposed limitation on the privileges that are embedded in the constitution (seriously?!) would make things worse, not better.

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Roundup: Duffy’s poor arguments

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Day two of Duffy’s bid to sue the Senate, and his lawyer came up with some…novel arguments. And it sounds like the judge wasn’t buying many of them. For example, they tried to argue that because PMO was exerting influence on the Senate’s leadership that it should nullify privilege. That’s…creative, and utterly ridiculous. When he tried to argue that the suspension should be invalid because it was done for political purposes, the judge wondered aloud if that meant she would have to call every member of the Internal Economy Committee to testify as to their motives – and no, that wasn’t going to happen she quickly decided. They also tried to argue that because the suspension wasn’t related to legislation that privilege doesn’t apply. But that’s also ridiculous because the ability to discipline its members is among the privileges outlined in Section 18 of the Constitution Act, 1867. So good luck with that.  Oh, and the “indefinite suspension” argument is also void because it wasn’t indefinite – it was until the end of the parliamentary session, and there was a fixed election date, so it would expire at that point regardless. (Also, the Senate’s privileges allow it to expel a member, so arguing that indefinite suspension is tantamount to expulsion is also not a solid argument).

The final argument was a plea to put the Charter ahead of privilege, which would go against previous Supreme Court of Canada rulings that stated just the opposite – that the Charter doesn’t trump privilege, because that would open up a floodgate to litigation against the parliamentary process. There’s a thing called stare decisis, the doctrine of precedent that binds our common law system, and while there are rare cases where it can be challenges, this isn’t one of them. It’s actually quite audacious that his lawyer would make the case, and I’m not seeing any particular argument about how the judge should invalidate a Supreme Court of Canada ruling. So yeah. Good luck to this case, because I really don’t see it going anywhere fast.

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Roundup: Fighting to preserve parliamentary privilege

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Senator Mike Duffy’s court challenge started yesterday, and the Senate as a whole fought back to have the Chamber excluded from his lawsuit under the rubric of parliamentary privilege. The Senate’s privileges include the ability to discipline its members – and this needs to be reiterated firmly, because as a self-governing body with institutional independence, that’s the only way that senators can be disciplined outside of a criminal process. This is also why there is a differentiation when it comes to the judge asking the hypothetical about the Speaker shooting someone – privilege does not necessarily cover criminality.

Part of what Duffy’s lawyers are trying to argue was that the Senate’s punishment of his suspension without pay should be subject to judicial review because he was acquitted of all charges by the Ontario Superior Court. The problem is that he was found to have broken several of the Senate’s rules, regardless of what the court found, and the Senate is empowered to deal with those breaches as they see fit – not to mention, it was also about making sure that discipline was seen to be done, which was important for a body that was facing scandal and public outrage. This doesn’t mean that they went about it in the best way, however – the pressure (especially coming from PMO, which the Senate leadership at the time capitulated to) wanted to have these suspensions out of the way immediately, and so Duffy’s interventions were cut short, and Senator Pamela Wallin never got her chance to defend herself at all because of the haste. Due process was not necessarily followed, and yes, that’s a problem. However, that is not a problem that can be sorted by means of judicial review, because that would undermine the Senate’s ability to be self-governing (just like the Senate subjecting itself to external financial control like the Auditor General wants would undermine its privileges and ability to be self-governing).

It can’t be understated how damaging it will be if we let the courts start interfering in the operations of Parliament, in either the Commons or the Senate. The constant injunctions to legislation, the threats of lawsuits, the massive breach of the doctrine of separation of powers – it’s not something that we should mess with. Duffy may feel he was treated unfairly – and maybe he was to an extent – but it’s no reason to start pulling bricks out of the wall when it comes to privilege. And if the judge has any sense, she’ll respect that separation and take the Senate out of the lawsuit.

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Roundup: Duffy’s privilege problems

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At long last, the Senate has responded to Senator Mike Duffy’s lawsuit against it, and is asking the Ontario courts to remove it from the suit because of parliamentary privilege. This was to be expected, and I’m surprised it took this long, but here we are. Duffy’s lawyer says that he’ll fight it, of course, but he’s going to have an uphill battle because this is very much a live issue.

For a refresher as to why this matters as an issue of privilege is because it’s about the ability of the Senate to discipline one of its own members. This is especially important because the Senate is a self-governing body of Parliament, and because it’s appointed with institutional independence and security of tenure in order to ensure that there is that independence. In other words, the Senate has to be able to police its own because there’s no one else who can while still giving it the ability to be self-governing (as we explored in great detail over the Auditor General’s desire to have an external audit body oversee the chamber’s activities). And indeed, UOttawa law professor Carissima Mathen agrees that it would be odd for the Senate not to have the power to suspend its own members, and raises questions about whether it’s appropriate for the judiciary to interfere in this kind of parliamentary activity. (It’s really not).

The even bigger complicating factor in this, of course, is that NDP court case trying to fight the House of Commons’ Board of Internal Economy decision around their satellite offices. The Federal Court ruled there that it’s not a case of privilege (which is being appealed), and Duffy’s former lawyer, Donald Bayne, said that this is a precedent in their favour while on Power & Politics yesterday. And he might have a point, except that the Commons’ internal economy board is a separate legislative creature, whereas the Senate’s internal economy committee is a committee of parliament and not a legislative creation. This is a Very Big Difference (and one which does complicate the NDP case, to the point that MPs may have actually waived their own ability to claim privilege when they structured their Board in such a fashion – something that we should probably retroactively smack a few MPs upside the head for). I don’t expect that Duffy will win this particular round, meaning that his lawsuit will be restricted to the RCMP for negligent investigation, but even that’s a tough hill to climb in and of itself. He may not have much luck with this lawsuit in the long run.

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Roundup: Mary Dawson delivers a spanking

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Outgoing Conflict of Interest and Ethics Commissioner Mary Dawson released her report on the Prime Minister’s vacation to the Bahamas and the Aga Khan’s private island there last Christmas, and she determined that he had indeed broken four sections of the code. Reaction was swift – Trudeau quickly called a press conference to apologise and try and to take full responsibility, but stumbled in some of his responses. And soon after, both Andrew Scheer and Jagmeet Singh called their own press conferences to condemn Trudeau and to rail about how out of touch he is, and so on.

First things first: The Canadian Press has five items of note from the report, and John Geddes offers three items of his own. Hay is being made – particularly from certain opposition politicians – that Trudeau is the first PM to have been found guilty of breaking these conflict of interest laws, but it’s worth bearing in mind that this current conflict of interest regime is only a decade old, and it’s not a lot of time for which there to be much to compare to. Aaron Wherry parses the report here, while Paul Wells offers his own bigger-picture look as to why this all matters.

This all having been said, I’m trying to digest the substance of the report, and some of it does rankle with me a bit, in particular the way in which Dawson parses how a friendship with someone like the Aga Khan should unfold, given the position that he holds. I also wonder if better context should have been applied to just what his Foundation’s dealings with the Canadian government are, because actual private interests aren’t being advanced here – nobody profits from this. A lot of what the Foundation does with Canadian aid money is do things like provide school books to Syrian refugees in camps in the Middle East, where they have the networks to deliver them. This isn’t nearly the same thing as accepting gifts from businessmen whose private interests and personal profits may rely on decisions made by the Canadian government, and I wonder if it’s helpful to treat those as being on an equal playing field. (Then again, maybe it is. I’m not an expert in this).

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A couple of other thoughts – It is fair to ask why Trudeau and his team, who can be so focused on optics at times, were so blind to this one. But given that they’ve scored more than a few own-goals this last year with bad communications plans, that’s becoming clear that they’re not the masters at this that they sometimes appear to be. As for the lack of penalties in the Conflict of Interest legislation, we have to bear in mind that these are political actors that we are discussing, and merely naming and shaming them does have political consequences. If we got into games of demanding financial penalties or that public office holders be jailed for breaches, we change the political calculus of this ethics regime, and it would become an even bigger gong show than it is now, not to mention that it would make cooperation even less likely if they think there’s a jail sentence attached. And finally, there is a lot of smug sanctimony going around, but some caution had best be exercised, particularly by members of the opposition, when it comes to how the Aga Khan is portrayed in this. The Ismaili community already has their backs up over how he has been characterised to date, and those opposition parties could find themselves alienating an important voting bloc if they’re not careful.

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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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Roundup: A shuffle and a split

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So, there was that relatively small cabinet shuffle yesterday, some of which was telegraphed in advance, some of which became the subject of wild speculation as Trudeau seemingly threw in a couple of red herrings for the pundits to go wildly chasing to no end (LeBlanc and Wilson-Raybould especially). In the end, the new faces are Seamus O’Regan at Veterans Affairs and Ginette Petitpas Taylor to Health, while Carla Qualtrough moves to Public Services and Procurement, Kent Hehr takes over sport and disabilities, and in the biggest move, Jane Philpott moves over to a split Indigenous Affairs portfolio, so that Carolyn Bennett now becomes minister of Crown-Indigenous Relations, and Philpott becomes minister of Indigenous Services. While it’s hard to say that Hehr’s move is anything but a demotion, O’Regan’s move is being noted both for his close friendship with Justin Trudeau, as well as his move from rehab to the cabinet table, for what it’s worth. Also of note is the fact that new mandate letters will be forthcoming in the next few weeks, while there was a bit of panic when the old ones were re-issued with new names for the time being.

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The real news is the fact that Bennett and Philpott’s joint mandate will be to ultimately dismantle Indigenous and Northern Affairs and to create two separate departments that will move the files toward greater self-governance and be a less paternalistic structure for Indigenous communities to deal with – especially since the current structure does not currently suit the North well for Inuit communities, or Métis. Complaints about the creaky bureaucracy hampering the Indigenous file are constant, and structural reform like this is probably the next logical step in moving those particular files forward, but there are already detractors moaning that this will just mean double the bureaucracy and double the obfuscation. Maybe. I’m also dismayed by commentary from the likes of Hayden King who dismiss what the government has done to date as being symbolism and process. Why that bugs me is because process is important. Democracy is process. Changing the fundamental ways in which things happen – i.e. process – is important can’t just be shrugged off because it doesn’t turn into an instant fix. These kinds of issues are systemic and stubborn, and sometimes changing process to get the wheels turning is actual progress, even if it takes a while to see the results. None of this happens overnight – indeed, dismantling INAC won’t either, and step one is yet another consultation process on what the end goals are going to look like so that they can make the split with those in mind. And no doubt, we’ll hear yet more naysayers, but these are changes that will take time to happen.

AFN National Chief Perry Bellegarde is happy with the change as a next step to dismantling the Indian Act. Susan Delacourt sees Trudeau keeping his friends close in this shuffle, while Chantal Hébert notes that the Canada-US files remain untouched in the shuffle, which points to how Trudeau is targeted isolated problems while looking to stay the course with the NAFTA talks. Paul Wells looks at Jane Philpott as this government’s go-to fixer, while Aaron Wherry notes the two doctors now in charge of the Indigenous portfolios and what that may mean.

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Roundup: That fictional “crippling tax hike”

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This particular exchange dominated my Twitter Machine feed over the weekend. And lo, it’s some of the same tired, disingenuous rhetoric that over this same issue we’ve been talking about for weeks, because apparently, that’s how we roll.

Of course, the point is to be disingenuous and raise a panic so that they can fundraise and data mine over it with this petition that Rempel is pushing, which is a model of political engagement that we really, really need to stop doing in this country, but unfortunately, we’re in the “If it works…” line of thinking, never mind the broader consequences.

Erin O’Toole decided he wanted to get in on the action to complain that these changes would affect “competitiveness.”

Because you know, facts are hard. And hey, Kevin Milligan went through and modelled the impact that those tax changes will actually have, and shockingly, it’s not what the Conservatives are trying to insist will happen. Imagine that.

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Milligan left it with this helpful reminder that questioning is a good thing, but also reminded us that he too can bring the shade.

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Roundup: Mike Duffy, white knight

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Oh, Senator Mike Duffy. For his suffering, he has decided to launch a $7.8 million lawsuit against the RCMP, the Government of Canada, and the Senate itself. It’s not just about the two years of suspension without pay, or the reimbursement or legal fees, or indeed about the further clawbacks of his salary that the Senate undertook for his abuse of expense claims, or about the lost income from speaking fees that he could have claimed had he not been dragged through the process. No, Duffy is so concerned about the lack of Charter rights for those who work on the Hill that he’s willing to take on this multi-million-dollar lawsuit for the principle of the matter.

Such a hero.

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Now, I will be the first to admit that yes, the way in which Duffy’s suspension handled was hugely problematic, and that his rights to due process were trampled on because of political expediency, it cannot be argued that the Senate was illegitimate in the way it acted because as a self-governing parliamentary body, the Senate not only has the ability to police its own, it is in fact the only body that can police its members because of parliamentary privilege and institutional independence.

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While Duffy’s lawyer was effusive in his characterisation of Duffy’s acquittal, I’m not sure that it completely passes the smell test – Duffy was found not to have met the criminal test for fraud and breach of trust, but you cannot say that no rules were broken. The Senate has pointed to numerous examples where this was the case and fined him appropriately, and while he claims that the rules were too loose and vague, that is certainly not the case with all of his rejected claims. And it will raise questions if this suit goes ahead because the judge’s ruling was indeed problematic (and I know for a fact that there are other judges on that same bench who were not keen on it), and without an appeal being raised, that could raise more questions with this trial – if it goes to trial.

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Of course, we can’t deny that perhaps Duffy is looking for a settlement of a couple of million dollars, but I’m not sure that of the parties involved, the Senate would bite and go for it. They are still pretty sore about the whole thing and are keen to continue to prove that they are taking a hard line to those who abuse it. I would wager that they are more likely to fight this to the bitter end on principle, come what may.

Meanwhile, Susan Delacourt sees an odd parallel between Duffy and Omar Khadr in that their rights were violated (which is a bit of a stretch, legally speaking), while Christie Blatchford suggests that perhaps Duffy is indeed owed something because his rights to due process were robbed.

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Roundup: Stop berating members for doing their jobs

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It’s not often that I write about provincial matters, and especially not from Manitoba, but this one I felt like I should make a remark because of the way in which the story is framed, which infuriates me to no end. The headline is “Stephen Fletcher criticizes his own government’s bill in Manitoba.” Fletcher, a former Conservative MP and one-time cabinet minister, is currently an MLA in the province, and a backbencher in the governing caucus.

Because I know that the vast majority of Canadians didn’t get a quality civics education, let me spell it out – it’s a backbencher’s job to hold the government to account. Yes, even if they’re from the same party. And in this case, Fletcher had concerns about a bill and has been asking questions about it at committee meetings late into the night. In other words, he’s doing his job. We should be encouraging this.

But what does the local Canadian Press reporter ask the premier? Whether Fletcher should be removed from caucus.

Great Cyllenian Hermes, luck-bringing messenger of the deathless gods, give me strength before my head explodes.

We The Media keep insisting that we want more independent elected officials, and we constantly fetishise things like free votes, and the moment an MP or MLA starts asking tough questions of their own party or steps out of line, we freak out and start wondering if the leader is losing control of their party, or in this case, whether they need to be kicked out of the party. In this particular case, the article goes on to say that this is the first crack in party unity. Are you kidding me?

When we elect members under the First-Past-the-Post system, we are imbuing them with individual agency. That’s why we elect them to single seats and not giving votes to parties to apportion those seats out to their MPs. We privilege the independence of MPs and empower them to do their jobs. Whether or not they choose to do so is the bigger part of the battle, because of the pressures of looking like a team player, but We The Media make it worse because we pull bullshit like this all the time. Our insistence on these ridiculous narratives and demands that our elected members all act in lockstep constantly while at the same time demanding independence is doing the system in. It’s driving the need for message control which is poisoning our democracy, because our own journalists have a tendency to be too ignorant of how the system is supposed to work.

Let MPs and MLAs do their actual work of holding governments to account, and stop causing trouble. Seriously. You’re actively hurting democracy with this kind of bullshit.

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