Tag Archives: Supreme Court

Roundup: A notice of appeal before a pause

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It’s not wholly unexpected that the federal government filed the notice of appeal on the Federal Court decision around the Canadian Human Rights Tribunal order around First Nations children. No sooner did all of the television news rush to get Cindy Blackstock on camera when another notice went out by the government – that they had reached an agreement to pause said litigation while they sit down with stakeholders in this court case, as well as with two other related class-action lawsuits, and hammer out a deal by December 1st.

There are a few thought around this. The first is that this should have been expected because the real crux of the issue if the Tribunal’s order rather than the compensation itself. The government has committed to spending the money – and there are billions of dollars at stake – but any tribunal that exceeds its statutory authority is something that any government, no matter the stripe, will want to challenge because they don’t want to set a precedent where the Tribunal continues to exceed its authority, and in this case, turns itself into some kind of roving commission of inquiry. (I wrote all about this issue previously here). The notice of appeal spells this out pretty clearly, and while one judge at the Federal Court may have disagreed, he’s certainly not the court of last instance (and frankly, I would rather hear from some of the judges on the Federal Court of Appeal when it comes to matters of administrative law – as with this Tribunal – than I would this particular judge). And while a number of self-righteous reporters demanded to know why the government couldn’t just pay the amount and sort out the issues later, I’m pretty sure that litigation doesn’t work that way.

My other thought is that it looks a lot like the notice of appeal was more out of a need for the government to keep their options open as the negotiations continue, particularly given that it was filed as late as it was, followed immediately by the press conference to explain what was taking place. Frankly I don’t buy the “they filed it at 4:30 on a Friday to bury it” because it wasn’t exactly buried when it dominated the politics shows and is the top story on every news site in the country. That’s not burying something, especially when they have a captive audience. This being said, I’m still don’t think that this government has communicated the issues very effectively (particularly the issue around the Tribunal exceeding its authority), and that’s compounded by the fact that the media writ-large has shown itself to be fairly incapable of writing a legal story with any nuance or complexity, and rely on both-sidesing it with a clear bias toward taking Blackstock’s word as the authority, and by conflating a number of different issues and completely blurring the timeline of the different orders from the Tribunal. This isn’t a black-and-white issue of taking kids to court – but you wouldn’t know it if you only paid attention to what gets reported.

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Roundup: Clear and concise, to counteract Poilievre

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Earlier this week, to accompany the release of their Monetary Policy Report, the Bank of Canada released a sixty-second clip over social media to explain their assessment of the state of the Canadian economy in plain language. And it was great.

This kind of communication is essential, especially now, for the Bank because of the level of noise and misinformation that is being promulgated, particularly by certain members of Parliament who have made it their mission to politicise the work of the Bank, as they spout facile talking points about the current state of inflation that have zero bearing on the actual causes. And if it’s not Pierre Poilievre, my reply column is full of chuckleheads who think they know better, and inflation truthers (which are the gods damned worst). So yes, this kind of clear, simple-to-digest communication is especially needed by the Bank, much like the Cases in Brief have become an essential form of communication from the Supreme Court of Canada. This is a great initiative from the Bank, and hopefully we’ll see more like it in the future.

On a related note, former Bank of Canada governor David Dodge says that the current governor is on the right track with the economic recovery and where inflation is going, so if you needed an additional vote of confidence that they know what they’re doing, there you have it.

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Roundup: Rejections without significance

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Because it’s a story that refuses to die, we now know that both the Bloc and the NDP have rejected the four main votes in the (garbage) Reform Act, and now we await the Liberals, who will in turn doubtlessly reject it as well whenever they finally have their first official caucus meeting, and of course, we have political scientists trying to derive meaning from these refusals, as they have tried with the Conservatives agreeing to the four votes.

The simple truth, however, are that these votes really don’t matter because the legislation is garbage. The power to elect caucus chairs doesn’t require its adoption, as we’ve seen, and the power over the expulsion of caucus members is largely illusory anyway because it tends to depend on what the leader says either way. I would be hugely surprised if the caucus and the leader ever parted ways on whether or not to boot someone out of the club, as that would create a schism and be a sign that the leader was on the way out. As well, the power of the caucus to pressure a leader to resign is actually better off without the Reform Act because what the Act winds up doing is protecting the leader by setting a high threshold and requiring a public declaration to trigger a vote, which can invite retribution. It has been far more effective to push a leader out with one or two public declarations by brave members that signal the writing on the wall rather than demanding a twenty percent threshold.

In the Hill Times piece, the Act’s author, Michael Chong, pats himself on the back for codifying these sorts of caucus decisions, but codifying them is part of the problem. Our Westminster system tends to work best under conventions that aren’t codified because it affords them flexibility and the ability to adapt, whereas codification is inflexible, leads to testing of the system and the pursuit of loopholes and getting around what has been codified. It’s the same with setting that threshold to push out a leader – it winds up insulating the leader more than empowering the caucus, and we’ve seen leaders resign with far less pressure than what this codified system affords, not to mention that by Chong codifying that party leaders must be selected by membership vote in the actual Parliament of Canada Act as a result of this garbage legislation, he has made it even harder for parties to return to the proper system of caucus selection and removal of leaders as we need to return to. Chong has screwed Parliament for a generation, and it would be great if the talking heads would stop encouraging him.

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Roundup: The $3.5 million witch hunt finds no witches

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In Alberta, the Committee on Un-Albertan Activities – err, Allan Inquiry – released its final report, a year late and millions of dollars over-budget, and it concluded that there was no illegality or nefarious activity with regard to environmental groups who may have received some funding from international donors when it comes to opposing the oil sands and other oil and gas activities. Dollars that went toward campaigns against the energy sector were fairly minor, and had little-to-no impact on projects not moving forward (because market forces did the job just fine, thank you very much). In other words, the province spent $3.5 million on this joke of an inquiry, and tried to claim it was money well spent, because the government is nothing more than a total clown show.

And then there were the lies – the minister insisted that the inquiry was never about finding illegality (untrue – there are receipts), and Jason Kenney outright lying about what the numbers in the report stated, because he needs to try and spin it in the worst possible light to both justify the exercise, and to continue trying to point the populists he stoked in a direction other than his.

https://twitter.com/charlesrusnell/status/1451353269708603397

https://twitter.com/charlesrusnell/status/1451353273781293094

Meanwhile, prime minister Justin Trudeau is pouring cold water on Kenney’s referendum rhetoric, reminding him that a provincial referendum is not an amending formula for the constitution – seven provinces representing fifty percent of the population is. More to the point, Kenney sat around the Cabinet table when the current equalisation formula was last amended, so he can’t claim it’s unfair as he’s the one who helped put it into place. Because seriously – claiming it’s unfair because Albertans pay the same federal taxes as everyone else is just political bullshit masquerading as a grievance, even though it’s a grievance that has largely been created for the sole purpose of driving populist anger.

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Roundup: The House of Commons’ vaccine mandate

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The expected happened in a way that was a little unexpected – and perhaps a bit improper. The Board of Internal Economy apparently met (possibly virtually), and decided that as of November 22nd, there is a vaccine mandate for the parliamentary precinct, and that includes MPs, staffers, and contractors. It’s a bit of a cute way of imposing a vaccine mandate on MPs themselves, but it may not fly regarding the Chamber itself because of parliamentary privilege.

Mind you, a privilege argument won’t last long. While the decision to go the route of BoIE seems to be a bit of a dare – and Yves-François Blanchet seems to indicate that he’s of the opinion that this is a legitimate use of its powers (I wouldn’t be so sure), this could easily be challenged in the Chamber, but even if the Speaker determines that there is a prima facie case of privileges being infringed, the rest of the House can vote instead to dismiss it rather than send it to committee, or even if they do send it to committee, vote it down afterward. And they likely will, because all of the parties except for the Conservatives are in favour of the vaccine mandate, so it’ll pass one way or the other. Now the government can head off any challenge by introducing a motion in the Chamber on the first or second day to declare that MPs need to be fully vaccinated in order to be in the Chamber, and they can then vote it through and it’ll be fully legit, so if they’re smart, they’ll ensure that happens once there is a Speaker in place. (This will also likely happen in the Senate, but they are still in discussion in that Chamber, but one can likely assume a similar vaccine mandate will be in place with their own precinct areas and Chamber in a similar manner).

This leaves the question of hybrid sittings. The Conservatives and Bloc have been in favour of ending them, while the NDP have supported keeping it going. The Liberals haven’t officially said, but they have been pushing for this since before the pandemic, so you can bet that they’ll be fine with some form of hybrid ability going forward, which shouldn’t be allowed – the human cost of hybrid sittings when it comes to the toll it takes on the interpreters is frankly immoral to continue with. That will nevertheless by an ongoing conversation between the parties before any order to resume said sittings goes ahead in the first few days of the new parliament – but a rule should also be made that unvaccinated MPs shouldn’t be allowed to simply join by hybrid sitting instead. Parliament, whether in the Commons or the Senate, is an in-person job, and it’s an essential function of this country. The hybrid measures should only ever have been temporary and for the duration of that pandemic emergency, and now that we have vaccines, there is no longer a need for them.

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Roundup: Not pushing back on referendum disinfo

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Because this is occasionally a media criticism blog, I’m going to call out Power & Politics once again for completely dropping the ball, this time on the bullshit “referendum” happing in Alberta. They hosted Bill Bewick, who heads a group in favour of the referendum, and gave him a pretty uncritical interview, with only the barest hints of pushback. Because both-sidesing.

Host David Common pushed back on a mere couple of points – that the referendum won’t actually do anything because it doesn’t obligate the federal government to negotiate anything; and the fact that without equalisation, PEI would need a 30 percent HST to make up the same funding. He even went so far as to egg on Bewick about how much equalisation Ontario pays, as if it was relevant, because no province actually pays equalisation, which is a pretty big thing that Bewick and his bullshit ever got called on. Equalisation is simply federal taxes that come off everyone’s paycheque – that a fraction of those funds get redistributed to some provinces who need help in offering comparable levels of service when they don’t have adequate fiscal capacity. And the key thing to remember is that Alberta may pay more federal taxes because they have the highest salaries in the country – by far – even during the pandemic. Crying that the province has a deficit has nothing to do with equalisation and everything to do with the fact that the provincial government refuses to raise their own revenues by means of a modest sales tax like other provinces have, and the fact that they chose to rely on resource revenues instead. Their deficit is a choice.

I am forced to wonder whether Bewick didn’t get any pushback because the host and/or the producers simply don’t have a clue about the truth, or because they feel bound by the need to both-sides everything and plan to have someone credible on to refute the points in a separate interview later today – because heaven forbid that the host actually push back lest he or she be called out as being biased or partisan. But calling bullshit and pointing out fact shouldn’t be considered bias or partisanship – it should be simple fact-checking, which they can’t seem to be arsed to do at the best of times, let alone in a referendum that is fuelled by misinformation and disinformation coming from official sources trying to make a political wedge out of this. In a case like this, it’s especially incumbent upon the media to play their role in pushing back against a government that is lying to its citizens, but this timidity to do so is a very real problem for our media.

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Roundup: Counting down to Kenney’s referendum

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Alberta is a little over two weeks away from Jason Kenney’s bullshit “referendum” on equalisation, which won’t actually accomplish anything, but will send his rhetoric into overdrive. (This is also when he will be holding his equally bullshit “Senate nomination election,” which is also blatantly unconstitutional, but that is a rant for another day, and I’ve filed numerous columns on the topic already). This referendum will do nothing about equalisation – it won’t do anything about amending the constitution, and if he thinks he’ll bring the federal government to the table to renegotiate the terms of equalisation, Justin Trudeau will once again remind Kenney that he was sitting at the Cabinet table when Stephen Harper and Jim Flaherty imposed the current formula. It’s a waste of time and money, all in the service of Kenney trying to continue to drum up anger at Ottawa as a way to distract the province from his own record of failure.

Meanwhile, here is Andrew Leach with a few thoughts:

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Roundup: Kenney announces his next big distraction

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By now you’ve heard that Jason Kenney has announced the referendum questions that Alberta will be voting on in October as part of Kenney’s mass distraction plans. It’s unheard of to have multiple referendum questions – in this case, daylight savings and removing equalisation from the Constitution – on top of an unconstitutional sideshow of Senate “nominee elections,” and yet Kenney is putting these all together with the upcoming municipal elections. This has the bonus for Kenney of muddying the waters of those elections, where more progressive candidates tend to do better, particularly in the cities, and he gets to claim that he saves money by holding them at the same time, but this is a lie. Municipal elections are run by the municipalities themselves, while these referenda and bogus “nominee elections” are held by Elections Alberta, and just because they happen at the same time and can co-locate spaces doesn’t change the fact that it going to cost more.

The thing is, the referendum on equalization won’t actually do anything because even if they sent a message to the rest of Canada and brought everyone to the table to negotiate, the only thing that’s in the Constitution is the principle of equalization – the formula itself is federal legislation, because the programme is paid out of federal general revenues. But Kenney is content to keep lying to the public and pretending that Alberta signs a cheque every year that Quebec cashes and pays for its child care system with (which it doesn’t – they pay for that out of their own taxes, and they reap the direct economic benefits from it as well). As well, the myth that Quebec killed Energy East is being invoked (Quebec had nothing to do with it – the proponent couldn’t fill both Energy East and Keystone XL with their contracts, so Energy East was abandoned as Keystone XL looked like the more likely to reach completion – not to mention that it wouldn’t have actually served the Eastern Canadian market), which is again about stoking a faux sense of grievance. The fact that Kenney is stoking this anti-Quebec sentiment because he thinks it’ll win him points (and hopefully distract the angry mob that is gathering outside his own door) is not lost on Quebeckers when it comes to Kenney’s good friend, Erin O’Toole, looking for votes in the federal election.

But as economist Trevor Tombe keeps saying, Alberta doesn’t need equalization in the same way that Bill Gates doesn’t need social assistance – Alberta is still making way more money than any other province, even with their harder times economically. The province’s deficit is not a result of equalization or money supposedly being siphoned east (again, equalization comes out of federal taxes) – it’s a result of a province that refuses to implement sales taxes or other stable revenue generation, and expecting everyone else to subsidize that choice (while also cutting corporate taxes under the illusion that it would create jobs, but didn’t). This is just Kenney handwaving and shouting “look over there!” because he knows he’s in trouble, and he needs to keep everyone focused on a different enemy. He shouldn’t be rewarded by people falling for it.

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Roundup: Exit McKenna

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It’s now official – Catherine McKenna is bowing out of federal politics, citing that she wants to spend more time with her kids while she can (the oldest is off to university next year), but insisting that she still wants to do her part to fight climate change in other arenas. This was immediately met with questions about whether this is a signal that it can’t get done in government, which she flat-out denied, but we should remember that the federal government is limited in what it can do, because it only has so many policy levers at its disposal (which we should all realise after living through those limitations in this pandemic).

https://twitter.com/AaronWherry/status/1409621322649440256

McKenna, who also stated flat-out that she’s not going to run for mayor, dismissed the attacks against her as “noise,” and that they weren’t successful because she did the work of getting the carbon price in place, and made more tangible progress on the environment file than we’ve had since the Mulroney era. But we can’t forget that the abuse was real, it was horrific, and she needed police protection because the threats were so bad. This should be one of those moments of reflection about where we are as a society that these kinds of misogynistic are able to keep happening with little to no recourse for the victims, and few consequences if any for the perpetrators. McKenna did note that she does still want to work with social media companies to address this, but we’ll see if anything actually happens.

https://twitter.com/cathmckenna/status/1409522139380785157

Of course, this has entirely been overshadowed by the spectre of Mark Carney entering the political arena, which he categorically should not, because even if he’s been out of the Bank of Canada for seven or eight years, it still has the possibility to taint the institution by association, and him declaring himself to be sympathetic to the Liberal cause is not helping either – especially given that Pierre Poilievre is currently attacking the institutional independence of the Bank by positing that they are somehow in cahoots with the government, and that they are simply “printing money” to finance the government’s deficits which will drive up inflation – entirely ridiculous notions given that quantitative easing is not actually “printing money” and that their whole mandate is to control inflation at around two percent, which they have been very good at. Nevertheless, people are believing Poilievre’s bullshit (especially as other media won’t actually call it out as such), and this will only get worse if Carney actually enters the political arena. And because the media and the pundit class have decided that they like this narrative of Carney being some kind of heir apparent and saviour, they are trying to make it happen, damn the consequences. It’s not a good look, and yet here we are.

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Roundup: An end to hybrid sittings?

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Now that the Commons has risen for the summer, the parties are starting to evaluate the hell that is hybrid sittings, and lo, they are largely in favour of returning to regular, in-person sittings once again. Praise the gods on Olympus! They recognise that it’s harder to hold government to account when you can’t see the minister in front of you, and that you can’t build comradery with your fellow MPs, and that there is a sense of futility debating video screens. (And in an interview a week ago, outgoing MP Wayne Easter also noted that it’s harder for MPs within a caucus to form groups to push back against the leadership if they can’t be in the room together).

I’m going to temper that praise a little bit, because they’re already talking about exceptions, whether it’s for MPs with illnesses, or those with small children, and this is where it starts. When they return in the fall, or in the next parliament, whichever comes first, you can bet that the Liberals in particular are going to keep pushing for a number of exceptions so that the hybrid format never really goes away, and therein lies the danger – that the longer it’s able to carry on, future cohorts become more used to these sittings than the ones who are used to in-person sittings, the easier it will be for future populists to start abusing the system to stay out of Ottawa as a point of pride. It won’t happen overnight, but once you open the door a little bit, it will get used and abused.

There was one area where I could be persuaded, which was around committee meetings during weeks when the Chamber isn’t sitting – particularly emergency meetings. Often times, those involve flying into Ottawa for a single hour-long meeting, then flying home, which is a huge waste of time and resources (not to mention the carbon footprint). So I could be persuaded – but the flipside of that is that it removes an element of deterrence for not calling these emergency meetings, which are often done for the sake of a political performance. It’s something to consider in the longer term, but again, now that Pandora’s box is opened and the evil is out in the world, we should try to limit the damage as much as possible.

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