Tag Archives: Responsible Government

Roundup: Not fussed about Payette’s pension

Posted on by

For the past week, in the wake of Julie Payette’s resignation, we have seen the various cheap outrage stories and QP attacks circling around. How dare she get her generous pension if she voluntarily resigned under a cloud of scandal? Why should Canadians have to pay for this? (Usually followed by the usual republican nonsense that falsely equates how much Canada’s contribution to the monarchy is and which grossly underestimates how much more an elected head of state would cost compared to the system we have in place now).

While Parliament could theoretically alter the laws that guarantee Payette her pension, trying to do so retroactively would invite a lawsuit that the government would be hard-pressed to win. Not to mention, the fact that she walked away without causing a constitutional crisis is probably worth the pension (because seriously, that could have been very ugly and messy). As for the additional annuity that former GGs are afforded to support any duties related to their time as GG that carry on afterward, be it speeches or answering letters, I’m less fussed about that because I think it’s healthy that we have people who are interested in keeping up civic duties once their term is over (especially as we don’t have ready-enough access to members of the royal family for that kind of thing), but would welcome additional transparency and reporting around that. It does, however, help make the somewhat ageist case that we shouldn’t appoint GGs that are too young because what do they then follow it up with after holding the second highest office in the country? (See: Michaëlle Jean’s time as head of the Francophonie). We also have to remember that things like a GG’s pension are made generous enough because it’s part of institutional independence – we don’t want a prime minister to threaten that pension if they aren’t going to get their way. It’s actually the same logic behind why you want a monarchy to be rich – so that they have independent wealth and that can’t be used as leverage by a government. Of course, Canadians have been conditioned to revel in hairshirt parsimony after the Reform Party years and media that delights in the response they get from cheap outrage stories, so we’re going to keep getting them, no matter how inappropriate and damaging to our institutions that they actually are.

Meanwhile, Erin O’Toole has been making the rounds claiming that Justin Trudeau would be in a “conflict of interest” if he chose the next GG on his own, and I just cannot with this completely illiterate nonsense. There would be no conflict because the GG acts on the advice of the prime minister – he or she is not going to say no if Trudeau decides to call an election, because there are no grounds for them to do so. The only time they have any kind of discretion around this is if the incumbent demands another election right after he or she ostensibly lost one, and if there is a viable alternative, the GG has every right to ask the incumbent to see if they can maintain confidence, and if not, another party can be invited to form government. There is this perception that the vice-regal has a truckload of discretion in these matters, and they simply don’t. More to the point, having the opposition sign-off on a new GG would then allow Trudeau to launder the prerogative and accountability for the decision to advise the Queen on that person, which we do not want. That’s not how Responsible Government works. Yes, there is merit to restoring the vice-regal appointments committee (but it’s too late for Payette’s replacement, because that process should have started months ago), but even then, the PM still has the final say from the names put to him on the short-list, as well he should. O’Toole is trying to sow confusion, and is giving further disinformation as to how our system works, which is very bad because it’s that kind of thing that undermines democratic norms. Knock it off!

Continue reading →

Roundup: A question of political accountability

Posted on by

An issue that I am getting tired of writing commenting on over, and over again, is this story about the supposed political vetting of judicial candidates. The reporters on the story fail to mention the crucial constitutional details underpinning the story, Erin O’Toole lies about what the justice minister has said in response to the constant allegations, and now the president of the Canadian Bar Association is writing to the government to express his concerns that this whole thing threatens public faith in the judiciary. And here I go again.

For the eleventieth time, let me reiterate that the prime minister is politically accountable for judicial appointments under our system of Responsible Government. That means that if another bad one gets through the selection process, he has to wear it politically if things come to light – kind of like what happened around now-former Justice Robin Camp (who you may remembered wondered why a sexual assault complainant didn’t keep her knees together). This is one of the reasons why once the candidates have made it through the initial non-partisan vetting process, that they are subjected to a political screen – to ensure that nobody is aware of any particular skeletons in these potential judges’ pasts that could come around to bite them in the future. Some of the confusion here is because one of the ways in which the government has been doing this vetting has been through their voter identification database, which has been interpreted as seeing if they are donors or had lawn signs – which is a false reading of what these databases do, which is to build voter profiles, and they consume vast amounts of data to do so (which is also why there are concerns that they are not subject to federal privacy laws). But this is being deliberately framed as looking for partisan manipulation. (This is not to suggest the motives of these reporters is partisan – only that they are looking to embarrass the government, and it wouldn’t matter which party is in charge).

I am more concerned by the fact that someone is leaking to the press, and the French press especially seems to be targeted about revelations concerning a particular staffer, which suggests to me some internecine fighting within the Liberal ranks that they are willing to do damage to themselves in order to hurt this staffer in particular. But why worry about motive or the fact that you are being played when you have a potentially embarrassing headline?

Continue reading →

Roundup: Budget cuts and accountability for advice

Posted on by

There was an interesting piece in the Globe and Mail yesterday where a couple of former top doctors enumerated some of the problems at the Public Health Agency of Canada that have been festering for years in spite of repeated warnings, which started creeping in with the budget cuts that started in 2011, and which were compounded with the loss of scientific capacity to the point where the president who just resigned had no scientific background at all. Which isn’t to say that you necessarily need someone with a science background in an administrative position like that (as opposed to the Chief Public Health Officer, which is a different kettle of fish entirely), but it points to some of the ways in which the civil service in this country has been losing capacity for a while. Suffice to say, it would appear to point to the fact that the current government wasn’t paying enough attention to what was going on at PHAC, though to be fair, there has been a fair bit on their plates, as they were dealing with medically assisted dying, legalised cannabis, and completely restructuring First Nations and Inuit healthcare delivery, which were all health-related files. The fact that emergency stockpiles weren’t being properly managed has come up repeatedly, but this does start with the cuts made under the Harper government.

Meanwhile in Queen’s Park (where premier Doug Ford made cuts to public health before the pandemic began), there is a piece in the Star that starts to ascertain just who is as the premier’s “health command table,” and ascertains that it’s Ford pulling all the strings and making all of the decisions. Which is as it should be – any “command table” should be merely advisory, because in our system of government, Cabinet makes the decisions, and Cabinet gets to wear them. I worry that trying to expose who is at this table will try to blame them for the advice they’re giving to Ford, rather than Ford making decisions on that advice – particularly when we’ve seen him ignore advice on things like school re-openings. There is a debate to be had about the transparency around the advice being given, so that we can ascertain whether or not Ford is actually following it, which I get, but I also wonder if there isn’t also a need for that table to be a place of frank discussion without it all coming out in the press – like why we have Cabinet confidentiality. And it’s a fair debate to be had, but again, let me reiterate that this is 100 percent on Ford, no matter what advice he may or may not be getting. That’s how Responsible Government works, and we need to quit finding ways to give Ford a pass, or an out on his shite decision-making.

Continue reading →

Roundup: Flashbacks about prorogation

Posted on by

It was a day of flashbacks to 2008, as Boris Johnson asked the Queen to prorogue the Parliament in Westminster, and social media had erupted with cries of “coups,” “dictatorships,” and wannabe constitutional scholars ignoring nearly two centuries of Responsible Government as they tried to implicate the Queen in granting Johnson’s request. Of course, there are some fundamental differences between now and the 2008 prorogation, such as the fact that there will still be a “washing up period” of a few days, as is traditional with UK prorogations, and time where the opposition can still try to move some kind of motion to try and stop a no-deal Brexit, though I’m not sure what mechanism they would use. A private member’s motion would be non-binding (and would carry only the symbolic weight of the Chamber), while a private members’ bill would try to impose some kind of negative obligation on the government – even if it could be sped through in those final days – and if there is no no-deal option on the table, it would then impose the necessity to have some kind of deal, which the Commons has already rejected. There is also the option of moving a non-confidence motion in those remaining days, which could topple Johnson’s government, ostensibly. The prorogation is also for a couple of weeks, and will return Parliament by October 14th, which still leaves it time to do something about Brexit before the October 31stdeadline. Johnson’s move may be dubious – and a dick move – but it could have been much worse. It’s not a coup. It’s not demolishing democracy. And it’s not eliminating parliament as an obstacle to Johnson – in fact, it may have only made it worse, as the move signals his desperation.

https://twitter.com/PhilippeLagasse/status/1166695661108105216

https://twitter.com/PhilippeLagasse/status/1166717156140244992

https://twitter.com/PhilippeLagasse/status/1166680410392289280

https://twitter.com/PhilippeLagasse/status/1166683151588057089

All of this being said, we need to also remember that some of the received wisdom of the 2008 prorogation crisis needs to be challenged. For example, people keep insisting that Michaëlle Jean was wrong to grant Harper the prorogation (ignoring that if she refused the advice of her prime minister, he would have been obligated to resign, which would have created a whole other constitutional crisis), that an opposition coalition would have been able to take over. The problem is that said coalition was never really viable, and pretty much everyone knew it. And this was proven correct by the fact that it did not survive the prorogation period. Had it done so, had they banded together and moved a motion of non-confidence, then formed a coalition, then sure, it would have proven that it was viable, and it would have reinforced that the system was working (as it did in when Sir John A Macdonald did not survive a prorogation to avoid a confidence vote around the Pacific Scandal). But the coalition fell apart, proving that Jean was right to simply grant the prorogation – making Harper stew about it for a few hours – and doing her job in acting on the advice of a first minister. But you’re going to hear a rehash of the coalition fanfic of the day, and we need to remember that it was only that – fiction.

Meanwhile, Susan Delacourt offers her thoughts on the prorogation, the disconnect between parliaments and the outside world, and the idle speculation about whether Stephen Harper’s 2008 prorogation may have inspired Johnson.

Continue reading →

Roundup: Nepotism versus Responsible Government

Posted on by

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

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

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

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

Continue reading →

Roundup: A trio of justice issues

Posted on by

There were three major law-related stories in the news yesterday, starting with the announcement that Supreme Court of Canada Justice Clement Gascon has opted to retire early, citing “personal and family reasons.” This was quickly followed by Justin Trudeau announcing that a replacement process would be launched, and would again be headed by Kim Campbell, while the Conservatives followed a few hours later with a demand that this process not go ahead until the leak from the previous process was investigated (though the Privacy Commissioner is already on that case). The thing to remember of course is that there is something of a deadline here, being the election, and it’s more than possible that the Conservatives want this delayed so that they have the possibility of naming the next judge if they should happen to form government in October. For what it’s worth.

The second story was that of the carbon tax reference at the Ontario Court of Appeal, which was live-streamed for the first time in its history. The province’s argument apparently is that if the federal government is allowed to impose a carbon tax, that they’ll start intruding into other areas of provincial jurisdiction, which is…dubious. And it sounds like the judges weren’t having much of that line of reasoning either.

https://twitter.com/cmathen/status/1117808109802663938

https://twitter.com/EmmMacfarlane/status/1117809485395816451

https://twitter.com/EmmMacfarlane/status/1117811576940060673

The third law story of the day was the revelation that the directive around civil litigation involving Indigenous people that Jody Wilson-Raybould instituted as one of her last acts as justice minister has been fiercely contested within the department because it many cases, it amounts to litigating badly and not actually getting the courts to resolve the legal questions that are at issue, which they argue doesn’t actually help reconciliation because you’re not dealing with underlying issues that require resolution. The piece also noted the frequent and direct political interference that Wilson-Raybould exerted on civil litigation (which she can do as Attorney General, unlike the arm’s length nature of criminal prosecutions), sometimes undermining the arguments that Crown attorneys were trying to advance in the middle of cases. It’s fascinating reading and yet more insight into what was going on with Wilson-Raybould in the lead up to her being shuffled.

Continue reading →

Roundup: A few notes on the state of the Brexit drama

Posted on by

Given the state of the drama in Westminster right now, I thought I’d make a couple of points about why we’re here now. It’s pretty unprecedented for a government to lose a vote – badly – on a major foreign policy plank without automatically losing confidence, and yet, thanks to the Fixed Term Parliaments Act, that’s exactly the case. And because Theresa May squeaked out a confidence vote, that leaves her in something of a precarious situation about not really having a mandate to continue on the path she was on, while not being able to take anything to the people in a general election, as might ordinarily be the case under our share Westminster system. The FTPA has made Parliament untenable, and enables bad actors to game the system, which would ordinarily have been avoided by the sheer fact that they would have been keen to avoid shenanigans that the Queen would need to be involved in.

https://twitter.com/PhilippeLagasse/status/1085530081768857600

https://twitter.com/PhilippeLagasse/status/1085531738971897858

https://twitter.com/PhilippeLagasse/status/1085270260498886656

It seems to me that if the Westminster parliament were functioning normally, then May could have taken the question of proceeding with Brexit to the people in an election, given that she lost the vote of confidence. Of course that would necessitate Labour to come up with a coherent position (and perhaps a more coherent leader, which their current bastardised leadership selection process also gave them). That would have given the winning government a popular mandate to overtake the referendum if need be, but again, that’s now off the table because of the way the FTPA has distorted the Westminster system. With the practice of Responsible Government being blunted by this statute, it’s clear that it must go.

Meanwhile, Chantal Hébert looks at the Brexit omnishambles and compares it to the plans for Quebec sovereignty back in the day, and how this seems to be dampening any sovereigntist sentiment in the province even further (while getting in a few jabs about Andrew Scheer’s Brexit boosterism along the way). Andrew Coyne likewise looks to the Brexit drama as an object lesson in how seccession from any union is far from painless.

Continue reading →

Roundup: A diminishing vision of a regulator

Posted on by

The Supreme Court of Canada returned their reference decision on the constitutionality of the proposed national securities regulator yesterday, and it was a unanimous green light – because this is a voluntary system, it’s constitutional. You may recall that a previous attempt to create such a national regulator to be imposed by the federal government was found to be unconstitutional, and lo, it didn’t happen. When the previous Conservative government constructed this new voluntary model, Quebec appealed to the SCC, and as we can see, didn’t win the day. And even with this decision, Quebec still says they’re still going to stick with their provincial regulator, thank you very much, and that’s that.

There are a few things to think about in this decision, and in the system as it’s being designed. One of them is that part of the mechanism that makes it acceptable to the Supreme Court is that the regulatory authority is being delegated to a council of ministers, but that may come with more challenges. Because the wait for this decision essentially stalled the work of the new regulatory body, it remains to be seen as to how long it will take to get the new system up and running.

While Andrew Coyne makes the point that this system really makes no sense because it’s not able to deal with the issue of systemic risk, it may be worse than that. I wrote about this proposal for Law Times back in the spring, and even proponents of the national regulator had started to sour on the concept because the proposed system as it was being built essentially let provinces maintain their own particular carve-outs, which increases the complexity and reduces the uniformity of the system across the country. Even more alarming, according to one lawyer I spoke with, is the fact that this sets up a system that is unaccountable, that makes up and enforces its own rules and is self-funding, which seems to go against most good governance norms. So we’ll see where this goes, but the final result certainly looks to be far less than what was initially promised.

Continue reading →

Roundup: A “grand coalition” is a terrible idea

Posted on by

Over in New Brunswick, where there has been no movement on whether or not there will be a new government, we are being treated to such views as the suggestion that there should be a “grand coalition” between the Liberals and Progressive Conservatives in the province to…rise above partisan interests? Erm, well, leaving aside the fact that there is a lot of bad blood between the leaders and it’s never going to happen, I find the suggestion in and of itself utterly offensive. Why? Because our system depends on there being an opposition to hold the government to account. That’s the whole point of parliament after all – to hold government to account, and while backbenchers are supposed to play that role as well as the opposition, in practice it often doesn’t work that well because the incentives are rarely there when there are Cabinet posts to distribute and the fact that we’ve bastardized our leadership system so as to neuter caucus’ ability to hold their leaders to account. Such a “grand coalition” would mean that the province has an opposition comprised of two three-member parties, which would have to fight over who gets to be the Official Opposition, and would have a hard time doing the job of holding a massive coalition government to account.

Now, I will add that New Brunswick and its peculiar political culture once returned a legislature that was 100 percent Liberal and had zero opposition members, and they managed to make it work. Sort of. But it’s not a situation that anyone should want to repeat, because it’s a Very Bad Thing for democracy and the practice of Responsible Government. Opposition plays an important role, and I know that people don’t like it because the adversarial nature can become both theatrical (witness Question Period), but if members don’t take that theatricality to heart, it can become embittering – especially if there are few avenues for cross-partisan bonding. I don’t know enough about how that part of the political culture works in New Brunswick, but the diminishing avenues for such bonding in Ottawa has created a less collegial parliament than it used to be in years past, and that’s a problem.

https://twitter.com/SkinnerLyle/status/1052295726477312000

Meanwhile, the lieutenant governor is straying dangerously out of her lane in issuing statements warning the parties to come to a solution because she doesn’t think the province wants a new election, and that means also finding a Speaker. This shouldn’t be public, and I get that some people want transparency, but she shouldn’t be doing this – especially because it gives people the idea that she can boss around the premier, which she can’t actually do unless we want to undo 170 years of Responsible Government in this country. It’s especially bad if the parties are trying to play the LG and trying to force her hand in some way – which is the kind of gutless manoeuvre that we should expect from Canadian politicians who don’t like to be seen to be making unpopular decisions and will try to foist the blame onto someone else. This whole situation is distasteful, and everyone needs to grow up and behave like adults.

https://twitter.com/PhilippeLagasse/status/1052316915140423680

https://twitter.com/PhilippeLagasse/status/1052317982884425729

https://twitter.com/SkinnerLyle/status/1052335901366476800

Continue reading →

Roundup: Hung legislatures vs basic civics

Posted on by

New Brunswick had an election on Monday night, and it resulted in a 22-21-3-3 hung legislature, and wouldn’t you just know it, there’s been some really awful reporting about it, because apparently people who report on politics in this country can’t be arsed to learn the basics of how Responsible Government works. Hence, we got reporters saying that people “don’t know who the premier is” – which is wrong, because it remains Brian Gallant as he hasn’t resigned – or that he would “get first crack to try and form a government” – he already has a government, but rather he will try to test the confidence of the Chamber – or another heinous offender was framing his meeting with the lieutenant governor as getting “permission” to test confidence, which is again wrong because the LG doesn’t grant permission. I’m also not crazy about framing the election as “inefficient votes” for the provincial Liberals because that implies that the popular vote is a real thing, when it’s a logical fallacy – it was not one election, but rather 49 separate elections that happened at the same time. This is basic civics, and yet our media is failing Canadians, so well done everyone.

https://twitter.com/PhilippeLagasse/status/1044537682427170817

https://twitter.com/PhilippeLagasse/status/1044539629687328768

What makes this particular election result interesting is the fact that there are two “third-parties,” each with three seats – the Green Party, and an anti-bilingualism populist party – that will have to prop up either the incumbent Liberals or the PCs, who won one more seat (so far as we know – there are several recounts now underway). That means that the election of a Speaker will be crucial, and word has it that the government is making offers to PC winners to try and get one of them to take up the post. Of course, one particular quirk of New Brunswick is that, well, their Speakers tend to be fairly partisan. So that could make things doubly interesting for the way things will play out in the weeks and months to come.

https://twitter.com/SkinnerLyle/status/1044762695554269184

Meanwhile, Paul Wells accurately describes the dynamics of the post-election period and how the LG will discharge her role, which is not to give permission. Susan Delacourt tries to tease out the effect of populism on this election, but along the way grossly mischaracterises the LG as having “waded into” the results and giving Gallant “the right” to stay on as premier, when that’s not how it works, and it’s disappointing that these myths keep getting traction.

Continue reading →