Tag Archives: Supreme Court

Roundup: Parliament versus itself

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Not unexpectedly, the Speaker of the House of Commons has declared that he’s going to fight “tooth and nail” for Parliament’s right to demand whatever documents they want – as well he should. But this is a very complex issue that becomes parliament fighting against itself, because of the obligations in places like the Canada Evidence Actthat triggered the process that the Attorney General had to undertake around those Public Health Agency documents related to the National Microbiology Lab firings.

With that in mind, here is some context as to what the Canada Evidence Act demands, and why this is not Justin Trudeau personally defying the will of parliament, but the government following its own laws.

For a further breakdown of the legal balancing act involved, and what the court process for this will look like, read through this thread (which was a little too long to simply post, but a couple of highlights are below).

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Roundup: The Ombudsman demands independence

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The military ombudsman put out a position paper yesterday that called for his office to be made fully independent, and he criticized the minister’s office and the Department of National Defence for trying to interfere in investigations and ignoring recommendations for change. In particular, he cited that turning a blind eye to his office’s recommendations advances political interest or has to do with self-preservation or career advancements within the defence community.

Readers may know that I have issues with the demands for yet more officers of parliament. The proliferation of these officers has become acute in the last decade, and while there is a need for an independent ombudsman for the military, I also have not been blind to some of the previous holders of that office, and some were very much unsuited for an office that has no accountability. I’m not sure what kind of a structure the ombudsman’s office should need to be, but again, making him unaccountable and completely insulated opens the role up to the kinds of abuses of authority we’re seeing with the last officer of parliament that was created (being the Parliamentary Budget Officer, who has become completely unmoored from his legislative mandate). Anyone who doesn’t share this concern obviously isn’t paying attention (and I can guarantee you that the media is not paying attention, because they like it when these unaccountable officers try to turn themselves into media darlings, as the PBO is doing right now).

When asked about this, Justin Trudeau said that he would put it to Justice Louise Arbour as part of her comprehensive review, so that the ombudsman’s office can be part of the solution to reforming the military, but I fear that she may recommend the officer of parliament route. Part of the problem right now is that the minister isn’t responsive, but I think the solution needs to be that the minister needs to go rather than the ombudsman needing additional powers. Would that we actually hold ministers accountable for their failures, but this government doesn’t seem to be too keen on that.

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Roundup: Priority but not a priority

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There are officially three sitting days left for the House of Commons before they rise for the summer, and lo, the bill to reform mandatory minimum penalties is nowhere to be seen, in spite of the government saying it’s a priority. In fact, it’s still at second reading stage, meaning there’s no chance they’ll get it through at this point, in spite of their professed need to do this as a way of combatting systemic racism in the justice system. Nor has there been any debate on the bill to make some of the modernisation plans forced upon the courts by the pandemic to be more permanent (some of it very needed, other aspects a little less so).

The government, meanwhile, is introducing another bill today on a new disability support credit, after they tabled their bill to make changes to the Official Languages Act last week, and you can read this as either promises for an election platform, or a sign that they have plans they want to get to work on in the fall. This being said, it’s been deeply weird to have a sitting of Parliament go by without their being a metric tonne of justice-related legislation in the process, churning its way through both Chambers (and I was remarking in a forthcoming column that the fact that the Senate’s Legal and Constitutional Affairs committee isn’t already overloaded is virtually unheard of).

The procedural shenanigans that have dominated this sitting have been more acute than I’ve seen in all of my years on the Hill, and it’s meant a lot fewer bills making it over the goal line than we’ve seen in a very long time. The fact that you have private members’ bills outpacing government legislation is also virtually unprecedented. This whole session has been nothing but procedural warfare, and it’s only bolstered the narrative of the need for an election. I’m still not convinced anyone actually wants one (other than bored pundits), but the narrative is there if the government wants to grab it, and doesn’t look too nakedly opportunistic in doing so (which is probably easier said than done).

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Roundup: The problem with pulling out of NSICOP

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The demand for documents related to the firing of two scientists from the National Microbiology Lab reached a boiling point yesterday, as the House of Commons voted to summon the president of the Public Health Agency of Canada to the bar in the Commons to face censure – and turn over the document – while Erin O’Toole also declared that he was pulling the Conservative members from NSICOP, alleging that there is some kind of cover-up happening.

For weeks, O’Toole and Michael Chong in particular, have been trying to paint a story that these two scientists caused a national security breach at the Lab, and that there have been a string of resignations over it. There’s no actual evidence for any of this – all signs point to the firing as being over a breach of intellectual property protocols, which was coupled with the fact that there used to be a permissive culture in the Lab where scientists (especially those deemed “favourites,” and one of the two fired scientists was indeed a favourite), did whatever they wanted and staff were instructed to make it happen – but that management changes started to end that culture, and it’s currently a fairly toxic workplace. (Check out my interview with the reporter who’s been on this story for two years here). The government has insisted they can’t turn over documents because of privacy laws, and the vague notions about national security because the two were marched out by federal RCMP, without any elaboration, and this opacity just made it easier to build up conspiracy theories – especially when they could tie them into the Wuhan lab in China, were samples of other viruses were sent to.

O’Toole withdrawing from NSICOP, a mere day after new members were appointed to the committee, damages the national security oversight in this country overall. Yes, there are legitimate criticisms about how NSICOP is structured – especially when it bumps up against the realities of a hung parliament – but it could also have been used to build trust between national security agencies and MPs, so that when it came up for review in five years, they may have been able to move toward a more UK-like model where it became a parliamentary committee. (More history in this thread). Some national security experts, like Stephanie Carvin, have argued that it should have been where initial determinations about those documents could be made, especially because they could be read in context – you can’t just read national security documents cold and make sense of them. But there is an additional, cultural problem for opposition MPs in this country (of all stripes) is that they prefer to remain ignorant in order to grandstand, and that’s exactly what O’Toole did yesterday – grandstand at the expense of the trust with national security agencies, and the cause of oversight of national security by parliamentarians. Short-term partisan considerations once again take the fore. What a way to run a democracy.

https://twitter.com/StephanieCarvin/status/1405508435521806338

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Roundup: C-10 keeps stumbling

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If there is any bill in recent history that is an object lesson in fucking around and finding out, it’s bill C-10, on amending the Broadcasting Act. Indeed, after the government, with Bloc support, moved time allocation while the bill was in committee, the five hours allotted to finish clause-by-clause consideration was apparently not enough, as it seems yet more MPs on the committee wanted to waste time fighting about things this bill doesn’t actually do. And lo, amendments that were passed after the five hours were up were deemed null and void by the Speaker, so once again, MPs found out.

This doesn’t mean that those amendments are necessarily gone for good – they can certainly be moved at report stage, where the bill is currently, though that may require extending the time allocation that was imposed on the current stage in order to be able to move and vote on said motions – and that leaves yet more opportunity for dilatory actions such as slow-voting and another point-of-order-palooza around remote voting. Barring that, the government can move them in the Senate, though that will be very uncomfortable as it will probably mean having to recall the Commons in a couple of weeks to pass the amended bill, which will be a gong show all around. Or, with any luck, it will be stuck on the Order Paper over the summer, and possibly smothered if the election call that the pundit class is so hell-bent on getting happens. Nevertheless – there is plenty of blame to go around for this state of affairs, not the least of which belongs to the minister for his singular failure to offer coherent communications around this bill at every opportunity, and most especially at committee.

I would add, however, that I have no patience for this notion that the bill saw “no real debate,” as certain individuals are claiming. It got more debate than most budget implementation bills – more than any bill I can remember in recent memory. Granted, we have no guarantee of the quality of debate, and considering that this bill has been the subject of a campaign of conspiracy theories (Internet Czar, anyone?), straw men, red herrings, and outright lies, while substantive and existential problems with the bill have largely gone unremarked upon, I can see a critique that the months of debate were short on substance. That said, I’m not sure how even more debate would have helped, other than to prolong the agony.

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Roundup: C-10 shenanigans have poisoned the well of our parliament

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Because things around Bill C-10 couldn’t get any more ridiculous, we now have news stories about Michael Geist getting the vapours about how amendments are being rushed through committee in a “secretive” manner, as though he’s never witnessed a clause-by-clause debate before. And to an extent, what has happened with that committee is the result of a complete breakdown of how it should be operating, forcing the government to impose time allocation on the process – a rare manoeuvre at the committee stage – because it has become so toxic. And with the whips intervening, this turned into essentially a forced meeting that the chair himself objected to, but again, this whole process has become so toxic because of partisan gamesmanship.

First things first ­– Geist’s vapours are more or less melodramatic, because there are still several other opportunities to see what amendments have been agreed to – the final committee report, which goes to Report Stage debate in the Chamber, where the full Commons can vote to accept or reject those amendments. And then there is third reading. If anything, particularly egregious is in there, it can still be caught and amended, and while rare at those stages, it is possible. And then there is the entire Senate process, where they can hear from yet more witnesses in their own committees on the amended version of the bill, and given that this particular iteration of the Senate is far more activist and interventionist, we can bet that there will be more impetus for amendments there (which could force an awkward contest of wills around those amendments given that they’d have to go back to a Commons that has risen for the summer, and at a time when nobody in this city can shut up about election speculation). Nevertheless, the point stands that there are several avenues yet for more amendments to this bill than what happened at the Commons committee.

The bigger point here, however, is that the reason this process became so toxic was because the Conservatives took a fundamentally – nay, existentially – flawed bill, and decided that instead of engaging its actual flaws, they would invent a whole litany of straw men and red herrings, and try to get the country up in arms over fictional provisions that they pulled out of their asses and held them up as effigies to be burned in protest. It’s a bad bill – it never should have placed under the Broadcasting Act because that statute deals with the assumption of the limited bandwidth of TV and radio, and trying to apply it to the internet is largely unworkable. This is a legitimate criticism that should have been debated, but instead, we got this fabrication of an Internet Czar who is going to be vetting your tweets and Facebook posts, and dark visions of Orwellian censorship at the hands of the CRTC, which is not even remotely plausible. But they went full-tilt with this insanity, and just completely poisoned the well of parliament along the way.

The government is not blameless here either – the minister’s communication around the bill has been nothing short of a disaster in English Canada, and his stumbles have been extremely damaging, but he’s been given a long leash because this is playing well in Quebec (where discoverability is a huge vote-getter because they do have difficulty finding Quebec and Canadian content in French – pointing to how the debate on this bill has been hugely built on what I’m going to dub “Anglophone privilege.”) We could have had a constructive debate around this bill. But we didn’t. A mountain of lies was countered by communications incompetence, and after six weeks of absolute shenanigans at committee, the government had enough and brought the hammer down. None of this needed to happen, but apparently we don’t have enough grown-ups in our parliament, and that’s just a sad, sad state of affairs.

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Roundup: Chalk up another moral victory

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The NDP did what they are very good at yesterday, which is to get a non-binding motion passed in the House of Commons, and declare a moral victory in spite of the fact that it does little more than make a statement. In this case, it was their Supply Day motion on calling on the government to drop their litigation on both the Canadian Human Rights Tribunal decision around First Nations children taken into foster care, while the second is round survivors of the St. Anne’s residential school. The Cabinet abstained from the vote, while most Liberal backbenchers voted for it – agreeing in principle to parts of the motion, and making a statement, but not binding the government to do anything. And while the NDP pats themselves on the back and says that they are “forcing” the government to drop the litigation, it does no such thing. It was merely the House of Commons voicing an opinion.

Part of the problem is that there is very little ability for people to discuss what the litigation is actually about in a meaningful way. According to Singh and company, this is about “taking First Nations kids to court,” which isn’t it. As a lawyer, Singh very well knows that there are complex issues that governments are obligated to sort out, especially if there is a bad precedent that it can set. In the case of the Tribunal decision, the government says they will pay compensation – and they are negotiating with two other class action lawsuits on similar matters to do just that – but the Tribunal ordered individual remedies for a systemic claim, which it should not be able to do, if the logic holds from previous Supreme Court of Canada jurisprudence that said that they could not offer systemic remedies for individual claims. The government, however, mumbles about the jurisdiction of the Tribunal rather than explaining this, and it means they look like the bad guys. With the St. Anne’s case, I’m less familiar but the government’s line has been that they are seeking clarity on some five percent of survivors who have not yet been compensated, and in some of those cases could be getting more compensation for some of those five percent – because complex issues can require complex litigation to solve.

Unfortunately, that’s not what most journalists will sort out. Instead, we get the usual both-sidesing of this, where you get the advocates insisting the government is being “incomprehensible,” and the government gives some pat talking points, and they leave it at that. It’s why, for the Tribunal litigation, I went and talked to law professors and got some outside perspective on what the issues actually are, and why they matter for a government to bother litigating them. We’re being failed because most journalists are too incurious to sort the issues out, and that’s a problem. Legal stories are complex, but they deserve some attention paid to them so that we’re not left with the misleading narratives that are now being allowed to circulate unchallenged. Media needs to do better.

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Roundup: Liberals being weasels about “open nominations” – again

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Remember back before the 2015 election when Justin Trudeau declared that the Liberals would be a party of open nominations? And then how he weaselled out on that after the election in order to protect nominations when they had a majority? And even after that, decided to trigger their “electoral urgency” rules in advance of the 2019 election, even though they knew the timing of it years in advance and could have actually let those nominations happen? Well, they are being weasels again, and just triggered the “electoral urgency” rules once more.

Of course, because there are only three narratives to choose from in most media outlets, this was seen as “more proof” that there’s going to be an election this fall, especially when combined with the fact that MPs agreed to hold a take note debate session on the 15th that will allow MPs who have opted not to run again to give a farewell speech. It’s all proof! Erm, except that this is a hung parliament that will have reached the two-year mark in the fall, making an election far more likely, so it’s a convenient time to hold such a session, given that it certainly wouldn’t happen after a confidence vote to bring down the government. I remain unconvinced that the Liberals are planning to dissolve parliament by the end of summer on a flimsy excuse, but then again, I generally don’t subscribe to the Three Narratives.

This being said, this weaselly behaviour around nominations is unsurprising given the trends in this country, and where the party has been headed. They did it in 2019, and at the end of last year, they did away with open nominations for the two by-elections and simply appointed candidates outright, never mind that there was interest from others in each riding and they could have held competitive races, yes, including in a virtual situation. We’ve seen all parties behave in ways that are undermining the democratic process by gaming nominations – Samara Canada wrote a report on it. (Samara was also credulous about the NDP’s claims about open nominations in 2011, in spite of all of the evidence of paper candidates who never even visited the ridings, never mind having run in an open contest, but that’s neither here nor there). The point is that this kind of behaviour is toxic to the long-term health of our system of government, and it needs to be countered and pushed back against. Unfortunately, because the media is hung up on the “early election” narrative at any opportunity, they never actually hold the parties to account for their undemocratic behaviour, and we’ve allowed it to get to this point. This is a very bad thing, and we should be pushing back and demanding proper, open nominations from all parties, no matter how inconvenient it may be in a hung parliament.

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Roundup: Some of the misconceptions around C-10

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The other day, I made a somewhat snarky comment over Twitter in response to an op-ed in The Line, because people are still making stuff up about Bill C-10. Like, out of whole cloth, complete fiction, because they do not grasp the basic mechanics of regulation in this country.

So, with this in mind, here are a few reminders. Start by re-reading my piece in National Magazine about the bill. Individual content uploaders are not being regulated – only the platforms themselves. The CRTC is not going to takedown YouTube content, and it’s not going to regulate news. If it regulates Facebook, it’s not regulating the algorithm of timelines – it’s only regulating if Facebook is acting like a broadcaster of scripted content, or when they livestream baseball games (which they have done). The reason why YouTube as a platform, for example, is being targeted is because it is the largest music streaming platform in the world, and this is why they want to bring it into the ambit of CanCon regulations, governing both discoverability (so that the algorithm shows more Canadian artists in suggested playlists), and contributing financially to the system that helps provide grants and royalties for Canadian artists. People keep mentioning Instagram and TikTok, but they’re not really broadcasting platforms.

So how does the CRTC determine what counts as CanCon? Well, they have a formula that assigns points to it, and 6/10 or 8/10 points gets particular CanCon status. These are all determined by regulations under the Broadcasting Act. Remember that legislation is the framework and policy direction – the nitty-gritty rules get determined by regulation, and it follows a process of development that involves stakeholder engagement and consultation, and is done at the bureaucratic level. It’s not Cabinet pulling rules out of their asses, nor should it be. You don’t want Cabinet to be putting its thumb on the scale, which is why there is an arm’s length regulatory body, being the CRTC. And it’s not just the cabal of commissioners who are making these regulations either, in spite of what certain people are claiming.

https://twitter.com/G_Gallant/status/1395427604107300867

This brings me to my next point – the very notion that the CRTC is going to police the whole of social media is completely crackers on the face of it. They barely have enough resources to do their existing job (and if you listen to some of the reasoning around this week’s telecom decision, they seem to think they can’t handle doing the work of wholesale internet prices). If you think they’re going to somehow hire an army of bureaucrats to police your tweets, you should be certifiable.

Now, this isn’t to say that C-10 is without problems, because they are there. For one, the Broadcasting Act may be the wrong vehicle for this, as it was about regulating the limited bandwidth for TV and radio. It will be on platforms to adjust their algorithms to make CanCon more discoverable, which is going to be the high-level work, but there are particular concerns around meeting the objectives under the Act, which involve things like “safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,” and whether these platforms will moderate content to try and fit those objectives, and that moderation will likely involve the use of AI, which is where we have particular concerns. And those are legitimate concerns, but they have nothing to do with the Orwellian picture being painted of moderated tweets, and newsfeeds being monkeyed with, or “takedown notices.” The level of complete hysteria around this bill, rooted in a complete ignorance of how regulatory bodies work – and a great deal of partisan disinformation – is making the debate around this bill utterly loony (at least in English Canada). Yes, it’s complicated, but don’t fall for easy narratives.

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Roundup: Bloc motion denied by Wilson-Raybould

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The Bloc tried very hard yesterday to push a motion in the House of Commons that would essentially declare that the Commons agreed with Quebec’s Bill 96, thus trying to politically disarm any of the objections to the plans to unilaterally amend the constitution to insert clauses on Quebec being a “nation” and that its only language was French. They were thwarted by Jody Wilson-Raybould, who was the only one to deny them unanimous consent – as well she should, because everyone is trying to be too-clever-by-half on this whole thing, and that’s bound to wind up in tears at some point down the road.

Paul Wells explained some of this earlier in the week in his lengthy column on Trudeau’s quest for Quebec votes, and essentially Trudeau was saying that sure, Quebec could move this unilateral move to the constitution if it didn’t impact on other rights, which is the real trick – the whole point of Bill 96 is to weaken the rights of anglophones in the province, up to and including taking away their constitutional guarantee to be able to hear a trial in English. Jagmeet Singh similarly tried the same tactic in saying that the proposed constitutional changes are “symbolic,” and won’t impact anyone outside of Quebec (never mind that they will impact anglophones in the province). Everyone seems to think they’re clever and that there will be no long-term repercussions from this, because they all want to get on François Legault’s good side before the next election, whenever that happens, because he’s still wildly popular in the province (almost disconcertingly so). This is hardly a serious way to run a country.

Meanwhile, here’s Thomas Mulcair, a veteran of the linguistic wars in Quebec, explaining why Bill 96 is really a sneak attack on the linguistic rights that he spent his career fighting for, and it’s well worth your time to read, because it has some additional context on what the current provincial government has been up to leading up to this point.

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