Tag Archives: Privilege

Roundup: Trying to blame the WHO

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Andrew Scheer was again out first yesterday morning to repeat his call for in-person sittings in the House of Commons (which Elizabeth May somehow claims is mere partisanship, which I don not grasp), before Scheer went off on tangents about the WHO, because apparently he thinks that following Trumpian logic is a winning plan. (The Conservatives on the Commons health committee have also been aggressively trying to “get answers” on misinformation from China laundered through the WHO).

Prime minister Justin Trudeau was up next for his daily presser, wherein he laid out plans to expand the CERB to those who make less than $1000 and seasonal workers, as well as those whose EI has run out, and promised wage top-ups for those essential workers who make less than $2500/month, but still no news on help for students and commercial rent (which one assumes is in partnership with the provinces). He also noted the assistance that the Canadian Forces as providing in Nunavut and in Northern Quebec. During the Q&A, Trudeau refused to get involved in the WHO debate, for what it’s worth.

Meanwhile, the issue of long-term care in Ontario was getting much more scrutiny, and it turns out that out of 626 facilities in the province, a mere nine got an inspection last year. Nine. Because the province moved to a “risk-based” system, which apparently means that there is only an investigation after a complaint is filed. So that’s totally fine, and one more sign about the complete mismanagement of the Ford government (that people seem to be forgetting when they praise Ford “stepping up” to the current pandemic challenge).

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Roundup: Pandemics and aid packages

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It was a day yesterday, where COVID-19 was declared a pandemic, Justin Trudeau announced a $1 billion aid package to deal with the outbreak, Donald Trump announced travel restrictions from European countries, and the NBA suspended their season (if you care about such things). More and more events are being postponed or cancelled, and the markets have entered Bear Market territory.

(Note: Maclean’s has an updated COVID-19 Q&A here).

As for that $1 billion package the government announced, one of the missing pieces are measures for workers who can’t access EI or sick leave when they are forced to self-isolate, which the government says they’re working on. As for Parliament, it does indeed have a pandemic plan, but it’s still early when it comes to deciding what portions of it need to be activated, and that can include suspending the Chamber’s sittings, but that would require some kind of negotiation with the other parties as to when to pull that trigger, and its duration.

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Meanwhile, Supriya Dwivedi worries that we aren’t warning people enough of the risk coming from the US, given how much of a gong show their healthcare system is. Susan Delacourt takes particular note of Trudeau’s language in asking Canadians to play their part to “flatten the curve” of the spread of the virus. Colby Cosh delves into some of the failure of the US’ centralized Centres for Disease Control in the early stage of the COVID-19 transmission. Heather Scoffield says that adequacy of Trudeau’s $1 billion COVID-19 package won’t last given the state of the economy.

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Roundup: Duffy v privilege

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As expected, the Ontario Superior Court dismissed Senator Mike Duffy’s attempt to sue the Senate for their disciplining him because the Senate is protected by parliamentary privilege. Privilege is what allows the Senate to be self-governing and as a body that is focused on holding government to account, it has complete institutional independence for very good reason – so that they can speak truth to power without fear of dismissal or reprisal. So imagine the utter gall of Duffy’s response to this ruling.

“The Charter of Rights applies to all Canadians, but the Court decision states that because of the centuries old concept of Parliamentary Privilege, the Charter doesn’t apply to Senators.” Oh dear me. No. You see, the only reason that Duffy still has a job in the Senate is because of parliamentary privilege. If he didn’t have the privilege afforded to him, he couldn’t have made the myriad of accusations about Stephen Harper and his operatives in the Senate Chamber on the eve of his suspension – not without fear of reprisal, particularly a lawsuit. That the Senate is self-governing and has institutional independence saved him from being summarily dismissed by the prime minister of the day when Duffy caused him a great deal of embarrassment. While I don’t dispute that Duffy was subjected to a flawed process that denied him the benefit of due process due to political expediency because, the fact that he received a suspension without pay that was eventually lifted, allowing him to resume his duties with full pay and serving enough time for his pension to kick in, means that he has pretty much escaped consequence for actions that he very likely would have been fired for in any other circumstance. That he then accuses the concept of privilege as stripping him of his Charter rights, when it has in fact protected him in every conceivable way, is utterly boggling.

Meanwhile, it seems clear that between this bit of self-pitying and the decision to pose with Senators Brazeau and Wallin while Brazeau tweeted that they “survived the unjustifiable bs [sic]” (since deleted), that there seems to be an insufficient amount of self-reflection at play, and that perhaps the three should continue to keep their heads down and not draw attention to themselves, because the public has not forgotten them.

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QP: Didn’t request any redactions

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Both Justin Trudeau and Andrew Scheer were present for a change, and Scheer led off by concern trolling Trudeau’s comments about the negative impacts on rural and remote communities when large numbers of construction workers come in, and demanded gender-based analyses of the cancellation of Northern Gateway and importing oil from Saudi Arabia. Trudeau responded with a list of projects the government approved before adding that some projects can have different impacts. Scheer railed about the jobs lost when Northern Gateway didn’t go ahead, to which Trudeau reminded him of the record unemployment but stated that they were looking to help Alberta to do well. Scheer demanded Northern Gateway be reinstated, to which Trudeau read quotes from the Federal Court of Appeal decision on why it wasn’t approved. Scheer demanded again that Northern Gateway be reinstated, and Trudeau called them out for bluster that wouldn’t help Alberta, reminding them that even if the project was acceptable, it would be years before it would get resources to markets. Scheer then changed gears and put on his tinfoil hat about the UN global compact on migration, to which Trudeau accused him of quoting Rebel Media, and praised Canada’s diversity. Guy Caron was up next, and railed about the redactions in the NSICOP report, to which Trudeau told him that neither he nor his office was involved in the redaction, but they took the advice of security officials. Caron then tried to wedge in the Raj Grewal investigation as an excuse for redaction, and Trudeau repeated his answer. Charlie Angus tried again in English and Trudeau called out his sanctimony before repeating the answer. Nathan Cullen then gave a torqued concern that Raj Grewal’s parliamentary privilege protected him from investigation — which isn’t true — and Trudeau raised Dean Del Mastro as an example of an MP under investigation whose privilege didn’t shield him.

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Roundup: The inaugural NSICOP report

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The National Security and Intelligence Committee of Parliamentarians tabled their redacted report on the prime minister’s India trip yesterday, and, well, there were a number of redactions. But what wasn’t redacted did paint a picture of an RCMP that bungled security arrangements, and that didn’t have good lines of communication with the prime minister’s security detail, and where they left a voicemail for someone who was on vacation, while someone else in Ottawa decided to not bother trying to reach out until the following day because it was the end of their shift. So yeah, there were a “few issues” that the RCMP fell down on. And because of the redactions (done by security agencies and not PMO, for reasons related to national security or because revelations could be injurious to our international relations), we don’t have any idea if the former national security advisor’s warnings about “rogue elements” of the Indian government were involved was true or not.

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The CBC, meanwhile, got documents under Access to Information to show what kind of gong show was touched off with the communications side of things as the government tried to manage the fallout of the revelations of Atwal’s appearance on the trip (and in many senses, it wasn’t until the prime minister gave a very self-deprecating speech on the trip at the Press Gallery Dinner that the narratives started to die down). Because remember, this is a government that can’t communicate their way out of a wet paper bag.

In order to get some national security expert reaction, here’s Stephanie Carvin and Craig Forcese:

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It should also be pointed out that the opposition parties are trying to make some hay over the redactions, and are intimating that they’re the product of PMO for partisan reasons. It’s not supposed to work that way, but hey, why deal in facts when you can proffer conspiracy theories, or in Andrew Scheer’s case, shitposts on Twitter?

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Roundup: Proposing a debate commissioner

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Yesterday the government unveiled their plan to establish an election debate commissioner, who would set about coordinating leaders’ debates during the next election, along with proposed around which party leaders could participate – rules that would give Elizabeth May an in, but could exclude Maxime Bernier unless he gets an awful lot of candidates in place, and his polling numbers start to rise. The proposed Commissioner is to be former Governor General, His Excellency the Rt. Hon. David Johnston, who is a choice that nobody is going to want to dispute.

Of course, that hasn’t eliminating the grumbling and complaints. The NDP are complaining that they weren’t consulted before Johnston was nominated (not that they’re complaining it’s him), and the Conservatives are calling this a giant affront to democracy and add this onto their pile of complaints that Justin Trudeau is trying to rig the election in his favour. (Not sure how this does that, and it seems pretty cheeky to make these claims when their own unilateral changes to election rules in the previous parliament were panned by pretty much everyone). And Elizabeth May is overjoyed because the proposed rules would include her. Of course, Johnston still needs to be approved by Parliament, and he will appear before the Procedure and House Affairs Committee, but all of this having been said and done, there remain questions as to why this is all necessary. Gould went around saying that this was because Harper didn’t want to do debates in 2015, except that he did debates – he simply didn’t want to do the same “consortium” debates that are usually done and decided by the TV broadcasters, and he most certainly didn’t want to have anything to do with the CBC. The key point they seem to be making is that the 2015 formats saw far fewer viewers than the consortium debates typically attract, for what it’s worth. Is this a reason to implement a new system, that neither compels leaders to participate or broadcasters to air? Maybe, and people will point to the debate commission in the United States.

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To that end, here’s Chris Selley asking some of those very questions, looking at some of the problematic behaviour from broadcasters in response to the changed formats from the 2015 debates, and offering some suggestions as to how this all could be avoided.

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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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