Because it’s never over, the saga of Mike Duffy’s illegitimate expenses are back in the news as Senate Administration is demanding that he repay some $16,955 in expenses claimed improperly that were paid for using his third-party contract with Gerald Donohue. And, wouldn’t you know it, Duffy’s lawyer is raising a huge fuss saying that the judge in the trial already declared that these were okay – something senators dispute, saying that just because they were not deemed criminal it doesn’t mean that they were okay, particularly when these expenses were not allowable and that the third-party contract was used to go around the approval process. (Duffy’s lawyer, incidentally, is also hinting that they will demand back pay for the suspension, to the tune of $155,000). But this is where the particular nature of the Senate comes into play, which is that it’s a self-governing body that is protected by parliamentary privilege, and it needs to be in order to safeguard our democratic system. In governing its own affairs, it is allowed to enforce its own rules (which, it bears reminding, do and did exist no matter what Bayne tried to argue in trial). And it is also empowered to enforce its own discipline, which is what the suspensions were related to – not a determination of criminality or a reflection of it, but rather that Duffy (and Wallin and Brazeau) had brought disrepute onto the Chamber and an example needed to be made. Is it fair? Possibly not, but this is also politics. Bayne raised the straw man argument that the 29 other senators whose expenses were flagged by the Auditor General weren’t suspended, which is a ridiculous argument considering that a) Duffy was not part of that process at all; and b) they ensured that there was a resolution process that ended in repayment one way or the other, so nobody was seen to be escaping justice. I don’t think Bayne will find much truck in the courts if he wants to press the issue around Duffy’s suspension or the fact that they are demanding repayment for expenses that clearly were not allowed, but it seems that we may be subjected to more drama around this, possibly for years if they take the matter as far as the Supreme Court of Canada.
Tag Archives: Public Service
Roundup: The quest for a less arbitrary majority
The electoral reform committee met for the first time yesterday and got all of its housekeeping details out of the way – “electing” Francis Scarpaleggia as the chair (though it was unopposed) and naming Scott Reid and Nathan Cullen as the deputies, allocating clerks and resources, and starting to figure out when the meetings will begin, hearing from the outgoing Chief Electoral Officer to start with. But with all of this going on, it bears reminding what we are doing with this whole “reform” endeavour in the first place, much of which has to do with the complaints that parties that don’t get a majority of the votes wield a majority of the power. Joseph Heath writes a great piece debunking this kind of thinking that everyone should read, because it is a reminder that trying to find a “true majority” becomes a futile quest – there is enough arbitrariness in any system that there can never be an actual majority, but it is simply more naked under First-Past-the-Post. Changing the system just moves the goalposts in different ways – indeed, proportional systems just removes the possibilities of majority government with the horse-trading of coalitions, which brings yet more arbitrariness into the system. So good luck, committee members, with your stated goals for the system you wish to choose when they are built upon foundations of sand.
This is why we should call it "electoral change", not "electoral reform". There's no objectively better direction to make changes.
— Stephen Gordon (@stephenfgordon) June 21, 2016
Meanwhile, as our friends in the media write yet more stories about what the committee will be looking at, can I please offer the reminder about doing some actual research when it comes to systems like ranked ballots. Consistently our media colleagues have repeated the grossly distorted line that ranked ballots somehow “increase the disparities of first-past-the-post.” We’ve seen this over and over again, especially as the NDP and their Broadbent Institute brethren have picked it up as a talking point. No.
Ranked ballots are supposed to discourage tactical voting, but you wouldn’t know it based on how it’s been described in Canadian media.
— Dale Smith (@journo_dale) June 21, 2016
This supposed fact comes from a single analysis done by CBC’s Eric Grenier using a single poll done around the time of the election regarding second choices. That’s it. It doesn’t detail how the system actually works and what it is designed to do, which is to eliminate tactical voting, and yet we’ve never heard that description used once. Oh, wait – I used it in a sidebar I researched for the Ottawa Citizen. But that’s it. It would be nice if other journalists writing about this file could actually go and do a bit of research on their own rather than repeating the talking points provided to them by partisans, because we might get a better understanding of what is actually up for debate.
QP: A moment for Orlando
Things got off today with a few statements of condolence and shock around the attack on a gay nightclub in Orlando over the weekend, and a moment of silence in the House of Commons. Neither Rona Ambrose nor Justin Trudeau were present today, Trudeau meeting with the chief and youth delegates from Attawapiskat.
MP Randy Boissonnault reads a statement about #Orlando, clad in a rainbow tie. #QP
— Dale Smith (@journo_dale) June 13, 2016
Now Mulcair reads a statement on #Orlando. #QP
— Dale Smith (@journo_dale) June 13, 2016
Shannon Stubbs reads the statement for the Conservatives. Blames "radical domestic terrorism," doesn't say "homophobia." #Orlando #QP
— Dale Smith (@journo_dale) June 13, 2016
.@Rob_Oliphant up now, speaks about the violation of that safe space with violence and homophobia, notes Muslim community now at risk. #QP
— Dale Smith (@journo_dale) June 13, 2016
Denis Lebel led off by asking about the terror attack in Orlando and the execution of hostage Robert Hall in the Philippines. Ralph Goodale responded with condolences and assurances that there were no threats to Canadians. Lebel then demanded an electoral reform referendum, to which Maryam Monsef called on all parliamentarians to help the committee do their work. Lebel pivoted again, and asked about a carbon tax. Jonathan Wilkinson assured him that they were focused on growing the economy in an environmentally sustainable way. Andrew Scheer took a crack at that question in English, terming a carbon price an “Ottawa knows best” approach, and Wilkinson gave the same answer. Scheer then accused the Liberals of charging admission for an electoral reform town hall, and Monsef said that they all members were supposed to follow the rules around these town halls. Thomas Mulcair was up next, and raised their opposition day motion topic of marijuana decriminalisation for simple possession. Jody Wilson-Raybould noted that they can’t just decriminalise without ensuring that children could not access it. Mulcair gave it another go in English, got the same same answer, and then he pivoted to take on the scourge of bank fees. François-Philippe Champagne reminded him that the government doesn’t regulate the day-to-day operations of banks. Mulcair asked again in French, and got much the same answer.
"Tens of millions" of Canadians are being slapped with criminal records for simple possession, says Mulcair. #QP
— Dale Smith (@journo_dale) June 13, 2016
Mulcair says "tens of thousands" in English. "Millions" may have been a bad translation. #QP
— Dale Smith (@journo_dale) June 13, 2016
Roundup: Save your prayers
As reaction to the Orlando shooting started to roll in, the rote phrase of “thoughts and prayers” was pretty much stock on most public officials’ tweets and posts, including in Canada. The Governor of Florida went so far as to say that now was a time for prayer. And yes, reaction to these kinds of events is now rote and ritualised, and it gets worse with every time that it happens.
https://twitter.com/scott_gilmore/status/742066737995231232
In this particular incidence, however, people calling for prayer are precisely the wrong thing to say. Why? This was a crime directed at the LGBT community (in this instance, particularly gay men), and it should not bear reminding that this is a community that has to deal with spiritual violence directed toward them on a consistent basis. What exactly do you think that calling for prayer for a community that is constantly told that they’re going to hell means to them? Do you think it somehow comforts them to know that the same god who is wielded against them is supposed to be looking after them? Really? As well, the fact that the word “homophobia” is absent from most of the leaders’ statements is a problem in my opinion.
Mentions terrorism, not homophobia. https://t.co/4w87TXWkwh
— Dale Smith (@journo_dale) June 12, 2016
“Domestic terror attack targeting the LGBTQ2 community” but doesn’t say homophobia. https://t.co/LliZuufmWW
— Dale Smith (@journo_dale) June 12, 2016
While it’s all well and good to call it domestic terrorism – which it undoubtedly is – the problem with that narrative, particularly with an ostensibly Muslim shooter (that he may have declared allegiance to ISIS being entirely irrelevant) is that it diminishes the act perpetrated against the targeted community. Both Trudeau and Ambrose are supportive of the LGBT community, of that there is no doubt, but for them not to call out homophobia point blank is disappointing, particularly because words matter, and when the word they choose is “terrorism,” it sets up for a specific response, and in today’s climate, that response gears toward Islamophobia instead. Across the Twitter Machine, people insisted that it was Islam who planted the seeds of homophobia in the shooter, which is rich considering how much the Christian right-wing in America uses blatant homophobia (and more recently transphobia) for political ends. But suddenly these same American politicians care about the lives of 50 people gunned down in a gay nightclub (without ever having to say the words “gay” or “homophobia,” natch). Fortunately, things are a little better on this side of the border.
.@keithjs Screenshot of Rempel’s FB message: pic.twitter.com/1t0kPEBgSu
— Dale Smith (@journo_dale) June 12, 2016
Needs to be shared: I am an openly gay MP elected by the largest Muslim community in Canada #cdnpoli #orlando #DVW pic.twitter.com/tYD32elc1V
— Rob Oliphant (@Rob_Oliphant) June 12, 2016
I would like to see more statements like Rempel’s, where homophobia is called out, and there are no calls for prayer; and likewise with Oliphant’s, who reminds people that Muslims are not automatically homophobes or hate-mongers. Words matter. We should ensure that they are used wisely.
Roundup: Everyone’s an expert
More amendments to C-14 in the Senate, and the very real threat from senators that they would rather veto a bad law (such as the bill as originally drafted) than let it pass and have to head back to the courts, is prompting everyone to consider themselves an expert on the Senate and how to reform it. After days of clutched pearls by pundits and the odd bit of praise (such as Martin Patriquin’s grudging admission that the Senate is a necessary evil), we’re also starting to get some pretty bizarre pieces out there, like one from iPolitics, where they got a mining company CEO to weigh in on reforming the chamber.
No, seriously.
Apparently, according to this “expert,” Trudeau has gotten it all wrong by creating a situation with “no enforceable rule,” and apparently we’ve never had a situation in the past 149 years where bills bounced back-and-forth between the chambers. Err, except that there have never been real levers by which a Prime Minister could control the chamber, only sentiment on the part of senators in his or her caucus, and we’ve had plenty of situations where bills went back-and-forth, including to having conferences between chambers (a situation which is unwieldy in the current configuration of the Senate). And while Trudeau has made mistakes, he is not to blame for the Senate’s actual constitutional powers, which are currently being demonstrated.
But wait – there’s more!™
Our CEO “expert” says that the solution is not Triple E (thankfully), but rather to reduce senators’ term limits to 12 years, to give provinces a veto on their nominees to represent them, and to ensure that a nomination panel ensures that “a new Senate is younger, more representative and better qualified for the work by credentials and life experience.”
Term limits are a solution in search of a problem because they reduce institutional independence. The problem, identified in the Ontario factum to the Supreme Court reference, is that a senator nearing their term limit can start to curry favour with the government in hopes of a post-Senatorial appointment to a tribunal or diplomatic posting. By ensuring that their end date is age 75, it scuppers those plans and keeps Senators from sucking up. Provincial vetoes? Well, senators are not there to represent provincial governments. They are not even technically representing provinces, but rather regions, and their representation tends to be for minority communities, be they linguistic, ethnic or even religious, which was the express purpose for why the Senate was built in the way that it was. And demands for a younger Senate clash with the desire to get accomplished Canadians to serve in its ranks toward the end of their careers so that they can draw on their decades of experience, and if you look at some of the qualifications of our current senators, they are on the whole a very accomplished group indeed (some exceptions apply).
So rather than get some CEO to bloviate without any actual institutional knowledge or awareness, perhaps we should all brush up on our civic literacy and learn about the chamber as it currently exists before start weighing in on how to fix something that is not actually fundamentally broken.
Roundup: Amendments are not some power grab
After hours of debate, the Senate passed the first amendment to the assisted dying legislation to remove the definition “reasonably foreseeable death” and replace it with the language from the Supreme Court’s decision in Carter, and immediately the pundit class erupted in cries of horror and outrage that how dare an unelected body dare to touch the precious words of the elected House of Commons, and that this newly emboldened Senate was dangerously overstepping its bounds going forward.
Oh. Please.
It’s like any hint of context went out the window when it comes to this particular bill, and the fact that you have a Supreme Court of Canada decision that it’s supposed to be in answer to (not that parliament needed to draft a law, mind you). There are serious concerns about the constitutionality of this bill. MPs in the Commons believed it, you have a lower court judge in Alberta that believed so when crafting a judgment around an assisted death request and how the state of this legislation wouldn’t conform to the Supreme Court decision, and now Senators are doing their constitutional duty of weighing the constitutionality of a piece of legislation, and quite rightly, they find it wanting. This is why the Senate exists, and what the “sober” part of “sober second thought” means – that freed from the constraints of having to worry about what voters will think, they can take a more clear-headed look at these controversial bills. And if you get hung up on the “unelected” part, apparently the policy and legislative roles taken not only by the Supreme Court or the various administrative tribunals that exist in this country also should keep you awake at night. (Also, their democratic legitimacy comes from being appointed by a government who has the confidence of the chamber, but you know, it’s not like Responsible Government is anything other than a minor detail).
https://twitter.com/emmmacfarlane/status/740737440231641088
https://twitter.com/emmmacfarlane/status/740743223396683776
So what happens next? Once the remainder of the amendments are decided upon one way or the other, the report gets sent back to the Commons, which they will then debate and amend at their pleasure – you know, like democratically elected legislators are supposed to do. The Justice Minister doesn’t sound keen on these amendments “without more safeguards,” but I also take this with a grain of salt because I do believe the government is setting up this narrative of reluctance so that they can show that they have been “forced” to accept what the Supreme Court has laid out by a Senate that could veto the bill if they find it unconstitutional. Because remember, MPs who have electoral considerations don’t like to be seen to take bold steps with difficult decisions when it’s easier to hide behind another body who can take the blame for them. And it’s not like MPs aren’t used to giving abdicating all manner of their roles to other unelected bodies (the courts, Officers of Parliament, and the Senate), this just being one more in a long line of examples. It’s one more reason why I find this concern trolling by the pundit class all the more difficult to swallow. If MPs were actually serious about their jobs, then it wouldn’t be incumbent upon the Senate to be the grown-ups of parliament, and yet here we are.
Roundup: Further conversations on constitutional conventions
In response to my blog post yesterday on the our unwritten portions of our constitution being just as important as the written parts, I had a lot of response over the Twitter Machine, many trying to argue that parties were not an integral part of the system, but historian Christopher Moore took the time out to chastise me for the use of the term “constitutional conventions” when it comes to Responsible Government. But the problem is that Moore is actually wrong in what he tried to argue. To wit:
Smith should look at Section 54 of the Constitution Act, 1982, which sets out in plain language that only the cabinet can make and propose the raising and spending of money. That is what defines the role of the cabinet of ministers. It budgets; it plans the getting and spending. But then there is Section 53, which bluntly states that only the House of Commons can give approval to the cabinet’s proposals for getting and spending.
A few problems with this. First of all, he’s citing the Constitution Act, 1867 and not 1982, and looking at Section 54, there is no mention of cabinet at all:
It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.
As is consistent in our constitution, there is no mention of a PM, or cabinet, because they are part of Responsible Government, which as I pointed out yesterday are part of the unwritten conventions that we inherited from the UK. As is consistent with the rest of the written constitution, only the Governor General is mentioned. And here’s the kicker: the unwritten constitutional convention is that under Responsible Government, the Crown – by way of the GG – acts on the advice of ministers, and for that to happen, ministers must hold the confidence of the Chamber. Ministers via the convention do all executive government in the Queen’s name. It’s not written because it’s a convention, per the preamble, as a constitution being similar in principle to that of the UK. Moore’s contention that it’s not a convention and that it’s embedded in the text does not hold. So while I’m happy to be corrected when I get it wrong (and it happens), this is not one of those times. Also, if you’re going to quote the constitution at me, then quote the constitution. And as for those people on the Twitter Machine insisting that Responsible Government can function without parties, well, it’s possible in a theoretical world with vampires and unicorns, but it will never happen in real life, so trying to disprove it to make a point is pretty much moot. The practice of parties developed for a reason. Maintaining confidence without them is a fool’s errand.
With many thanks to Philippe Lagassé for talking this issue through with me.
Roundup: Responsible, not rogue
A Liberal MP has broken ranks on a government bill! Oh noes! Let us now treat this as some kind of crisis of leadership! Okay, so the CBC piece about the event is only slightly more measured than that, but their Twitter headline certainly wasn’t.
Just doing his job, Liberal MP goes rogue https://t.co/VQMoYN8C9i #cdnpoli #hw
— CBC Politics (@CBCPolitics) April 28, 2016
One of the most enduring problems with Canadian political reporting is the constant conundrum of demanding that MPs exercise more independence, but immediately treating any instances of MPs breaking party ranks as some kind of crisis of leadership, where obviously the grip has been lost and soon it will be all over for the leader. (In some cases, the party itself treats it as some kind of betrayal of solidarity *cough*NDP*cough* and punishes its MPs internally with things like removing QP spots for weeks or removing members from committees or travel junkets). Ditto with senators, or at least until Trudeau kicked his senators out of national caucus – “is the leader losing control of his senators?” was not an uncommon headline either (though not one that is generally screamed as loudly, and one might also add that not enough ink was spilled on the split in caucus over Bill C-377 – the “union transparency” bill – the first time around when they voted to gut it, and Marjory LeBreton stepped down as Government Leader a couple of weeks later after seriously mishandling the whole thing inside her caucus). And yes, Trudeau did promise more free votes, but this is one of those common promises that tends to wind up with MPs voting in lock-step anyway because they all really support their party or they all just happen to all think in lock-step. I am also reminded that when Michael Ignatieff tried to encourage his caucus to vote more freely on private members’ bills by not rarely voting for them personally – so that they wouldn’t look to him as to how to vote – he was punished for it by Jack Layton lying about those missed votes as poor attendance during the election (though Ignatieff should have responded with the policy and shut him down, but didn’t, and lost the election quite badly as a result). Suffice to say, when MPs don’t vote in lockstep, we shouldn’t use terms like “goes rogue,” because it gives entirely the wrong connotation about what has taken place. We want more responsible and independent-minded MPs, so let’s not make it harder for them to do so. And let’s leave the word “rogue” to this for the time being:
Roundup: Party accountability sacrificed for Big Data
Justin Trudeau is encouraging his party to adopt a new constitutional structure, and I am completely aghast at the way in which he proposes to essentially blow up the way parties work in this country for under the banner of “modernization.” And even worse, that he denigrates the existing system as being somehow elitist if people hold party memberships. No, seriously. Paying $10 to get buy-in to the party membership is “elitist.” My head is exploding right now. As with the way the Liberals blew up their leadership selection process to absolutely obliterate any trace of accountability, they are moving to the exact same thing with their party policy process, and shifting to a Big Data approach that eliminates any incentive for the meaningful participation in the process that our system is built around. And let’s not kid ourselves either – for their last leadership race, the Liberals destroyed the line of accountability to the leader in order to populate their database. Now they want to put that process on steroids in the name of making the party – err, sorry, “movement” – wide-open. Anyone can participate! So long as they can collect all kinds of data on you in order to target and craft messages and fundraising appeals rather than have you be an engaged citizen. Remember that there is far more to the political process in this country than just showing up to vote every few years, despite what you may think. The process actually involves people getting involved with the party, buying memberships, attending meetings, talking about and developing policy positions that then get voted on and forwarded to policy conventions, where they are then discussed by delegates from across the country and voted on, and once adopted, form the basis of the party platform. That is real people engaging in the process. Granted, this has been made much more problematic the more we increasingly presidentialise our party leadership systems in this country – again, spearheaded by the Liberals in 1919 with delegated conventions, and culminating in the way that Trudeau was elected in 2013, so that leaders amassed so much power that they began dictating what the election platform was going to be, policy resolutions be damned. And to whom is that leader accountable? It used to be caucus when they selected a leader, then it was to the party members, who were a somewhat nebulous group but they still existed and could hold reviews. But now? When anyone can vote for the leader, he or she is accountable to nobody, with an increasing amount of power under the rubric of a “democratic mandate.” By blowing up the policy process, where does that leave the membership? Or can we even call them that anymore since they no longer have buy-in to the party? If the process becomes technology driven – as this Big Data approach suggests – then what happens to riding associations, to volunteers, to the people who engage in the process from the grassroots? Do we simply adopt a slactivist approach that the leader’s office drives? Rather than encourage more people to join the party, to get involved, to do the hard work that won them the election – how do you think all of those doors got knocked on? – this starts to take that human element out of it in favour of a charismatic leader’s direction. It’s not that the system wasn’t working as it stands – it was. The problem goes back to civic literacy. We’re not taught in schools that the fundamental part of engaging in the political process is to join a party. Parties haven’t exactly been great at reaching out to teach people this either, because their membership drives focus on nomination races or leadership contests rather than hey, here’s a way for you to get involved in how this country runs. And wide-open approaches haven’t worked for the Green Party, with their wiki-style policy platform (which, remember, got somewhat hijacked by Men’s Rights Advocates and was exposed as such during the election), so why are the Liberals getting on board? To populate their database. It’s cynical, and it’s destructive to the way that our Westminster system works. But hey, it’s modern, so let’s climb aboard without thinking about it!
Meanwhile, this story has just made my head explode. https://t.co/hcAKj0VVLU pic.twitter.com/c6sku2I21B
— Dale Smith (@journo_dale) April 3, 2016
Roundup: Slight mandate confusion
The effort to turn the delay in André Pratte’s formal Senate appointment while he finalizes the purchase of property in the right Quebec senatorial district into some kind of controversy continues to be weak sauce, but it did expose a bit of a schism between what the advisory board believes their job to be – finding names to be recommended, leaving the PMO to do the final vetting – and the PMO’s communication around their expectations – that the board should only recommend qualified persons (which, let’s be honest, is a little bit of buck-passing). I’ve seen what purports to be the application form, and it did have the seven vacant districts listed, but that doesn’t mean that Pratte filled that form out as a self-applicant, but may have been approached, which could be why the issue of property was not entirely sorted before he was recommended. Regardless, it remains a bit of a damp squib in terms of a controversy or conspiracy, as Conservative MP Scott Reid would have us believe. Does this mean that there will likely be more vetting the next time around? Probably. Is this a fatal blow to the process? Hardly. Growing pains at the very least, which is why they had the interim process that generated these seven names first, so that they could work the bugs out of the system. That said, I will repeat Emmett Macfarlane’s note that the bigger problem with this process is people applying. That way is almost certainly the way that madness lies, as every egomaniac and self-professed “top minds” in their field will apply (and I know of at least one person who is wholly unqualified but believes himself to be who is trying to get support for a self-nominated Senate application). This should be a process where people are identified and nominated by others in recognition for a lifetime of good work, not a means of ego-stroking and self-congratulation without having to go through the rabble of the electoral process. It defeats the whole point of the Senate as being a place where people who would not otherwise seek office can be given an opportunity to contribute. If you are seeking a Senate appointment, your motives should be immediately considered suspect, and should almost certainly be disqualifying. After all, did we learn nothing from Mike Duffy’s decades-long campaign to get himself appointed? Let’s not do that again.
https://twitter.com/emmmacfarlane/status/713744433011953666
https://twitter.com/emmmacfarlane/status/713746943277735936