Tag Archives: Supreme Court

Roundup: A new Chief Justice

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The justice minister announced yesterday morning that the prime minister would be naming Justice Richard Wagner as the new Chief Justice of the Supreme Court of Canada, thus both respecting the tradition of alternating between a Common Law and a Civil Law judge as the Chief, as well as picking an accomplished jurist who has 15 years left on the bench, ensuring that there is a long enough period of stability on the Court. Wagner is well respected in the Quebec courts, where he hailed from, and it is noted that he doesn’t really fit into the left-right divide – something that is not only indicative of our Canadian system, but is one of those things that people point to when they note how a Liberal PM can elevate a judge chosen by his Conservative predecessor.

A trip to the Maclean’s archives finds this piece by Paul Wells on the day that Wagner was named to the Supreme Court was also the day that Justin Trudeau threw his hat into the ring for Liberal leadership, and that both men had famous fathers in political circles. Tasha Kheiriddin notes the choice of Wagner is a safe one.

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It’s also worth noting that Wagner also becomes Deputy Governor General with his elevation to Chief Justice, and he can grant royal assent to bills in the event that the GG herself is ill or absent; he opens Parliament before a Speaker is elected; and he will head the committee in charge of nominating people to the Order of Canada. The practice since 1939 also used to be that the Chief Justice would close a session of Parliament instead of the Governor General following some particular manoeuvring by Mackenzie King while the GG was out of town, until the government stopped with prorogation ceremonies. (If you ask me, they should restore the ceremonies, but with the GG doing them).

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Roundup: A couple of reality checks

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As we head into the final week of the Commons’ sitting for 2017, there have been a couple of recurring themes in the past few weeks that could each use some good dose of Stephanie Carvin. The first issue remains that of returning foreign fighters, and the way in which the Conservatives keep repeating in Question Period that the Liberal strategy is apparently “poetry and podcasts,” which a) nobody has seriously suggested, and b) deliberately confuses preventative deradicalization programmes with those geared toward rehabilitating those who have returned from foreign warzones who may not have been active combatants (most of whom are dead by this point).

And then there is the Prime Minister’s trip to China, where a free trade deal wasn’t secured, which Carvin is an acknowledged China sceptic about from a national security standpoint, particularly because China doesn’t like to play fair, and will use tactics that include imprisonment and de facto hostage-taking in order to try and get their way in trade disputes.

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Let’s hope that the opposition has a chance to listen to some of what Carvin has to say before they ask some more…dubious questions this week.

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Roundup: Space to socialize

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Amidst the growing buzz of MPs’ bad behaviour, whether it’s ejections from the House of Commons during QP, or the allegations of inappropriate comments at events as with James Bezan and Sherry Romanado, Kady O’Malley says that the presence of cameras hasn’t been a guarantor of good behaviour. And that’s fair enough. So what does she propose? Not to do away with the cameras, particularly in the Chamber itself, but rather creating the conditions by which MPs can spend more time together outside of the strictly partisan work situations.

More to the point, O’Malley suggests that MPs start sharing meal breaks, whether it’s in the cafeteria, or has been proposed earlier this session with a common space behind the Commons chamber where they can eat together rather than having the usual food services delivered to their respective lobbies on either side of the Chamber. It’s not a novel idea, given the fact that it was shared meals used to be a feature of how our parliament operated. Evening sittings happened three nights a week, and at the appointed hour, they would suspend debate, head upstairs to the Parliamentary Restaurant for a couple of hours and there was cross-pollination of socializing between the different parties. And lo and behold, when evening sittings were abolished in the name of being “family friendly,” collegiality between MPs took a hit.

The problem with simply creating a space behind the Commons for MPs to have that meal together is that it’s pretty much restricted to those who are stuck with House Duty, so the numbers at any given time would be pretty small, and I’m not sure that it’s enough to get a big the requisite sea change happening. Maybe the answer is to bring back evening sittings – it’s not like there’s a lack of legislation that could use the added time – but even there, part of what kept MPs at the parliamentary restaurant is that there was a dearth of other options in the area, which isn’t the case any longer. So while I don’t dispute that more opportunities for MPs to socialize is a good and necessary thing, I’m not sure that the conditions to make this a broader issue are really there any longer.

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Roundup: Embattled ministers sticking it out

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With three cabinet ministers currently “embattled” (to various degrees), Aaron Wherry wondered about the drop-off in actual ministerial resignations, and found the comparison to the days of Brian Mulroney, who was far quicker to accept resignations than is customary these days. Mulroney came to regret this, mind you, but it can’t be denied that the demands for resignations have never left us, and in fact are pretty rote performance by this point. That the Conservatives made their demand for Bill Morneau’s resignation without any real damning evidence as to why it’s necessary has made it seem as unserious as it actually is, making it harder for them in the future to make a legitimate demand.

But with that having been said, I’m going to say that there’s something that Wherry has left out in his analysis, which is the way in which Cabinets are constructed is a different calculation now than it was in Mulroney’s day, and that matters. Back then, the dominant concern was federal construction, so while you had to ensure that you had enough ministers from certain regions, and some token diversity in terms of religious or cultural background, with a woman or two in the mix, it was easier to swap out white men for one another when it came to accepting resignations and replacing them. That’s not really the case right now. Trudeau’s pledge for a gender-balanced cabinet that is also regionally representative as well as diverse in terms of race and ethnicity means that there are far fewer options for replacing ministers when it comes time to either accepting resignations, or swapping them out for fresh blood. What that ends up doing is creating an incentive for a prime minister to stick by an “embattled” minister (though I’m not sure just how serious any of the allegations against any of the current ministers really is – the attacks against Morneau are largely baseless, while Lebouthillier has done her due diligence with regard to the AG’s report and has technically been correct in what she’s said regarding the disability tax credit; Hehr, meanwhile, has been chagrinned but I’m not sure there is a cardinal sin here in the grand scheme of things). Sure, there will be a few tough days in the media, but eventually, when there turns out to be nothing to what is being said, the storm passes. It passed with Harjit Sajjan and Maryam Monsef (who was given a promotion for sticking with the flaming bag of dog excrement that was the electoral reform file), and I’m pretty sure it’ll pass for the current three. Until Parliament itself is more diverse than it is now, the demands for a representative Cabinet means that there are fewer options available for a Prime Minister to accept a resignation. What it does mean, however, is that they need to get a bit better around communications and managing the issues that do come up, but also seems to be a recurring theme with this government.

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Roundup: A revealing confession

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When I saw the initial tweet, I can’t tell you how hard my eyes rolled, precisely because this sort of shtick is David Akin’s specialty – asking non-sequitur questions at inappropriate moments to try and generate a different headline, oftentimes to manufacture outrage (and oftentimes to the detriment of other reporters who had serious questions to ask when questions were limited). And some of the reactions to said tweet were pretty great too.

https://twitter.com/davidakin/status/937918915987906560

But reading Trudeau’s response, it was a bit of a warning klaxon for me, because of how this has been quietly playing out over the course of the past couple of years in the ways that Trudeau and his government has been trying to “reform” the way that business happens in the House of Commons – you know, to “modernize” the way that it functions.

…As we look at electoral structures, which is one of the questions that was specifically asked, we’ve had a certain level of discussions around electoral and democratic reform in Canada that leave me looking to the mother of all parliaments. Obviously, the U.K. does a significantly better job than us in programming legislation and getting that through the House. I think there is issue to admire on that. On the other hand, we were glad to adopt the prime minister’s question period model from the U.K. I think there’s lots to draw on when you look at our democratic structures from the mother of all parliaments.

The two key takeaways there are programming legislation, and prime minister’s questions. This isn’t the first time that programming motions have come up – back in the spring, the opposition filibustered the government over a proposal to include programming motions as part of Bardish Chagger’s “discussion paper” on suggested changes to procedure, and it seems that Trudeau hasn’t given up on the notion. I know that some people like programming motions because it helps create more orderly debates, and helps to move legislation though the chamber a lot more swiftly. But that’s partially why I’m not a huge fan of it, because creates the default assumption that the Commons is there to process legislation instead of holding government to account. Granted, we’ve gotten a bit dysfunctional in our parliament because opposition parties (and the NDP in particular) have an inability to let debate collapse in a reasonable timeframe which brings up the need for time allocation, and programming motions are just that – time allocation for all stages of a debate as it gets tabled. We should be trying to get parliament back to a better state of debate rather than resorting to programming, because that will help snuff out what little life remains in our parliament – it will make the speeches that much more rote and pro forma rather than having a miniscule chance for actual debate. As for PMQs, Trudeau’s grand experiment with it here has not proven to be that illuminating, and has instead created a perverse incentive for the Conservatives to instead bombard him with the same question eleventy times than to use it productively, and even when backbenchers do ask varied questions, they get mere platitude responses rather than substantive ones. It’s not like the UK’s, and so I find Trudeau’s response to Akin far more dubious as a result.

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Roundup: Romanado’s version

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A little over 24 hours after the allegations between Liberal MP Sherry Romanado and Conservative MP James Bezan ricocheted around the Hill, CTV got an exclusive interview with Romanado, and it’s eye-opening in how the accounts differ, particularly around the apology itself. In particular, Romanado disputes that Bezan had made attempts to apologize earlier – something she would have welcomed – and noted that she was blindsided by his public apology in the Commons on Monday morning considering that she was in her office when it happened, and only later made her statement to try to correct what she felt was wrong information.

The biggest takeaway from the interview (which I would encourage you to watch, despite the fact that it’s 20 minutes long) is the fact that in her estimation, Bezan broke the confidentiality of the mediation process by putting out his statement on Monday afternoon – something she respected up until that point, which is partially why she had been blindsided. She also notes that while others are accusing her of making a partisan issue out of it, she had plenty of opportunity to do so beforehand while she respected the confidentiality of the grievance process, and her “reward” for this affair is to be inundated with trolls over social media who have been replete with lewd suggestions about threesomes. As well, other MPs have come to her to recount their own experiences that they won’t come forward with.

There were a few other points of note in the interview – that what people will say was a bad joke felt to her like she was being undermined in front of stakeholders and treated like a sexual object, which made her job as parliamentary secretary harder to do. As well, she has been asked directly by young women who want to get involved in politics if they will be sexually harassed on the Hill, and she has told them unfortunately yes. There need to be conversations about what goes on and how to prevent it, but as this experience shows, it certainly appears that Bezan may have been engaging in some damage control that further sought to undermine Romanado, which is sadly the kind of cynical manoeuvres that happen here far too often.

Meanwhile, Susan Delacourt calls out those who would use sexual harassment allegations for political purposes, going back to the initial incident of those two Liberal MPs booted from caucus, while Robyn Urback argues that a bad joke is not really the same as the same kinds of allegations of sexual harassment that other women are coming forward about.

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Roundup: Feeding the fear industry

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The Conservatives’ final Supply Day motion of the year, and they chose to use it to both demand that the government bring any returning ISIS fighters to Canada to justice, while simultaneously condemning them for the Omar Khadr settlement – you know, the issue that they were going to hammer the government hard on back in September which didn’t materialize.

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As you can expect, the arguments were not terribly illuminating, and lacking in any particular nuance that the topic should merit, but that’s not exactly surprising. Still, some of the lines were particularly baffling in their ham-fistedness.

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Amidst this, the CBC published a piece about Canada’s refusal to engage in extrajudicial killings of our own foreign fighters out of the country, asking lawyers whether Canadian law actually prevents it, which not unreasonably has been accused of creating a debate out of nothing.

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And this is really the key point. Treating issues like this one in a ham-fisted manner, whether it’s with a Supply Day motion designed to fail, or a debate created out of nothingness, is playing into the fear industry that we really should be trying to avoid. This is not the kind of nuanced debate that we should be having, which hurts everyone in the long run.

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Roundup: The abuse of “appearance”

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Breaking! Ethics Commissioner wants to talk to Bill Morneau about that share sale! To which I immediately yawn and say, “Yeah, and?” Because we are beyond the point where any of these stories are actually advancing the story in a substantive manner, and we’re well past innuendo, and are now onto a full-on pile-on in the attempts to make something, anything, stick.

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This attempt to try and create some issue around insider trading has been nothing short of ludicrous because none of the facts bear the slightest scrutiny, nor does any of their internal logic hold-up in the face of the other allegations. If he was really interested in “insider trading” (which isn’t actually possible from his position), why wouldn’t he wait to sell those shares until he tabled Bill C-27 and Morneau Shepell’s share prices spiked (temporarily)? But really, none of it makes adds up, and Andrew Coyne constructed a pretty good takedown of the allegation here. And Mary Dawson saying she’ll give Morneau a call sounds pretty pro forma here, given that this is in response to yet another of Nathan Cullen’s demands that she look into his dealings in the vague hope of her finding something, anything, that Cullen can use to any tactical advantage. But as both the opposition and some of the more mediocre journalists in the Gallery continue to carry on this campaign, it has the very definite potential to backfire – especially as Morneau is taking the gloves off now that his father is being dragged into the fray. As Terrence Corcoran points out, the Conservatives are the ones who are now acting unethically, not Morneau (and I’m sure you could add a couple of aforementioned journalists to this list, because their reporting on this has been anything but responsible).

But when this short thread from Howard Anglin was pointed out last night, it became clear to me where the real problem lies.

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The problem here is not Bill Morneau – it’s Justin Trudeau, and the high-minded language he put into the mandate letters about being seen to be conduct the affairs without the appearance of conflict. What that turned out to be was an invitation for abuse. Because of the word “appearance,” all that anyone – opposition MP or mediocre journalist trying to make a big score – has to do is line up unrelated or conflated facts in a completely disingenuous manner and say “See! It looks like a conflict! This goes against the mandate letter!” Never mind that none of the allegations, whether it’s the cash-for-access (which wasn’t really cash for access) caterwauling months ago, or this Morneau nonsense now, bear up under the slightest bit of scrutiny – they are simply counting on it being the appearance of a conflict, and crying foul. We’re no longer dealing with issues of substance, but rather, the manufacture of optics in deliberately dishonest ways, because Justin Trudeau gave them an open invitation to. This is the state of our democratic discourse at the end of 2017. We should be embarrassed.

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Roundup: Demands for MP parental leave

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Some MPs are looking for changes to the Parliament of Canada Act in order to better accommodate parental leaves, given that they have no provision for them, and MPs start getting salaries clawed back if they miss more than 21 sitting days. (Mind you, records of those absences aren’t made public, so we have no way of checking). And while I’m sympathetic to the notion that there is no parental leave, I find myself sighing because there is this constant need by MPs and the press to describe Parliament as a “workplace,” and try and ham-fistedly force a number of hackneyed comparisons to justify it.

No. Parliament is not a “workplace.” And MPs most certainly are not employees.

I understand that it’s a job that’s not the friendliest for new parents. And I get that there is this desire to get younger voices into parliament, and there is a need to facilitate them, which is great. But I get very, very nervous every time MPs start talking about how they want to start changing things to make the place more “family friendly,” because every time they’ve done that to date, they’ve made things worse. Eliminating evening sittings to be more “family friendly” had a devastating effect on collegiality because MPs no longer ate together three nights a week. Now they’re looking to avoid coming to Ottawa altogether, instead appearing by videoconference instead, and no doubt they’ll demand to be able to vote remotely as well. And that is a bridge too far.

When you get elected, it’s to do the job in Ottawa. Work in the riding is secondary to your role as an MP, and that role is to hold government to account. Meeting constituents, while good small-p politics, is a secondary consideration to your duties. And the added danger in appearing remotely is not only a further breakdown in what remains of collegiality, it’s that the lack of facetime with other MPs and with witnesses who appear at committees means that there is no ability to forge connections or have off-script conversations, which are the lifeblood of politics. You need to show up to do the job. Your job is to be in Ottawa to vote and be seen voting, and to attend debate and committees. You knew that when you ran for office, and you knew that when you decided to have a child while in office. Trying to do this job remotely means that soon every MP will start to demand it, until the Commons is reduced to a small cadre of people there to fulfil quorum while everyone else attends to the “very important business” in their ridings.

The other point is that these MPs are not lacking in resources when it comes to finding childcare solutions – they are very well compensated, and can afford options that most Canadians can’t. That does matter in the equation, and why my sympathy has its limits.

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Roundup: A new justice named

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Justice Sheilah L. Martin of the Courts of Appeal for Alberta, Northwest Territories and Nunavut, has been nominated as the next Supreme Court of Canada justice, slated to replace outgoing Chief Justice Beverley McLachlin. Martin, who was born and educated in Quebec and is fluently bilingual and knowledgeable in both common law and Quebec’s civil code, and has been on the bench in the North as well as the west. She was once dean of a law school and has not only contributed to legal scholarship, but has also weighed in on some significant cases in her time on the bench, with pretty well-considered judgments. She is not, however, Indigenous, like many had been hoping. (For more on Martin, here is the link to her application questionnaire, and also follow the embedded Tonda McCharles tweet thread).

The issue of demanding bilingual judges is going to be an impediment for Indigenous candidates, for whom it creates an additional barrier, and when NDP leader Jagmeet Singh dared to suggest that perhaps they create an exception to that would-be rule for Indigenous nominees, he was forced by the rest of his party to walk back from that statement in favour of some platitudes about helping would-be Indigenous candidates with official language capacity instead. Note that NDP MP Romeo Saganash has come out against party policy to say that this demand for official-language bilingual judges hurts the cause of more Indigenous justices on the bench, but apparently that perspective is being silenced.

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While some Indigenous lawyers are upset by the choice of a non-Indigenous jurist, I think we do need to recognize that the feeder pools with provincial Superior courts and the Courts of Appeal still have large diversity problems, which is why this government went about reforming the process to appoint those judges (and partially why it’s taking so long to fill those vacancies). When the trickle-down starts to happen there, it will mean a bigger pool of diverse candidates available in the future that may not be there right now. Of course, we won’t know the demographics of who applied to this round, so that does matter as well (and we won’t know for another month), so we may get more answers at that point.

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