Tag Archives: Supreme Court

Roundup: Not the cures for what ails the Commons

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The latest round of Barish Chagger versus the opposition House Leaders started up yet again yesterday, and while my thoughts will be out in my next Loonie Politics column (up later today), I figured I’d take the opportunity to respond to Andrew Coyne’s musings about this latest round.

To wit, of his seven proposed reforms, Coyne only gets about three of them right – re-empowering the Speaker with regard to doing things like splitting out omnibus bills, restoring the various party caucuses’ ability to choose their leaders rather than the party memberships, and to ban scripts from the House of Commons (while ripping out the desks and implementing benches instead, Westminster-style), and letting the cameras get wide shots and reactions while they’re at it – something I too would agree with.

But then Coyne starts veering off into problematic territory. Turning over control of prorogation to the House of Commons is a Very Bad Idea because it fundamentally undermines the point of prorogation, which is that it allows the government to control its own agenda. It’s not up to the Commons to decide when the government needs to come up with a new list of priorities, and giving them the power to determine when they can hit the reset button throws that relationship out of balance – not to mention the lack of logic in requiring a supermajority to prorogue when they can declare non-confidence with a simple majority. Likewise, limiting the use of confidence undermines the whole bloody system and is utterly boneheaded.

Halving the size of cabinet? While the current Ministry has far less fat than previous ones, I think this has more to do with Coyne’s personal bugaboos about Cabinet construction in Canada than it does the problem with not having enough backbenchers in this country that diminished hope for a cabinet post allows for greater independence. Insisting that ministers answer questions put to them rather than fobbing them off to a junior? It’s less of an issue now than it used to be, but while we could theoretically empower the Speaker to insist, I worry that this becomes open to abuse (not to mention the fact that their refusal to answer is fodder for We The Media in holding them to account).

Of course, Coyne caps it off with his biggest eye-roller of all – that proportional representation will be the cure for all of our parliamentary ills. It won’t be of course, and will simply create a host of new problems (the extent of which depends greatly on just how the proportional system is constructed), but we’ve had experience with minority parliaments before. It didn’t make MPs more cooperative – it simply entrenched positions even harder, which a state of permanent minority or coalition government is all the more likely to do. So while Coyne is on the right path on a few ideas, his problematic or outright dangerous ideas outweigh the good.

Kady O’Malley, meanwhile, goes through a point-by-point deconstruction of the complaints that Michelle Rempel made over Twitter on Sunday night with regard to what she felt the imposition of a weekly Prime Ministers Questions would do, particularly around the media cycle, and while I’m no real fan of imposing a PMQ here (precisely because the rest of our debating culture is so bastardized that it would just make these problems even worse), O’Malley makes some particularly good points about why the opposition shouldn’t be overplaying their hands on this one.

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Roundup: Copping to privilege is not excusing it

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Earlier in the week, Justin Trudeau was asked by VICE about the problem of people getting criminal records for pot possession when decriminalization is around the corner, and he related a story about how his late brother was once charged with possession and their father, with his influence and connections, was able to make those charges go away. And then the opposition went crazy with it.

Of course, Raitt is missing the point in that it wasn’t that Trudeau is endorsing one set of rules for the elites and one for everyone else. (Raitt, of course, is trying to use the “Trudeau is an elite and I’m just a Regular Girl™” line as her campaign platform, which is getting pretty tired). He’s acknowledging that the current system ensures that kind of outcome, which is why he’s looking to change it.

https://twitter.com/emmmacfarlane/status/856989464832376832

Thomas Mulcair, of course, couldn’t wait to rail about the “abject hypocrisy” of it all, and to repeat his demands that the government immediately put through decriminalization until legalization is sorted, as though this was something that the PM could just snap his fingers and do.

But no, that’s not how this works. Mulcair has been in politics to know this, which makes his concern trolling all the more disingenuous.

If you wanted a measure that could be implemented right away, then the provinces could opt not to pursue charges for simple possession (which I think is pretty much what is going on in most cases), because they’re the ones who have jurisdiction for the administration of justice and who can set their own prosecutorial guidelines. They could instruct their Crown prosecutors not to pursue simple possession charges – but that’s the provinces’ call, not the PM’s – again, making Mulcair’s calls disingenuous. Decriminalization also doesn’t serve the stated purpose of legalization, which is to regulate sale to keep it out of the hands of children and to combat the black market. But I’m sure we’ll be hearing about this for the next few days, unless the Trumpocalypse and the brewing trade war consumes the news cycle today.

Update: I am informed by lawyers that I’m on the wrong track, that the federal prosecution service deals with drug offences and that simple possession charges are still common among minorities and marginalized groups. So mea culpa on that one.

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Roundup: May’s problematic proposals

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Green Party leader Elizabeth May decided to weigh in on the Standing Orders debate yesterday with a proposal paper of her own, considering Government House Leader Bardish Chagger’s proposal to have been an earnest trial balloon that has now blown up in her face and in need of moving on. May’s didn’t object to some of Chagger’s proposals, but came up with a few of her own, some of which are of dubious merit.

To start off with, however, May lards her paper up with a bunch of constitutional canards, such as the fact that political parties don’t appear in the constitution. If you hear the sound of my head banging on the desk, it’s because May is privileging the written Constitution Act as opposed to the unwritten constitutional conventions which are just as valid and just as important to our system of government, and are in fact foundational because that’s how our system of Responsible Government is expressed, and parties are foundational to that system. Just because they don’t appear in writing doesn’t mean they’re absent from our constitutional framework – they are fundamental to it, and May (and the scholars she cites) are simply obtuse to not recognise that fact. May then insists that the Westminster system has been distorted by parties gaining power and with presidential leaders, but rather than actually diagnosing where the problem is – the bastardized way in which we conduct leadership contests – she instead retreats to her usual hobbyhorse of the electoral system, which would not in fact solve any of the problems she identifies.

But if you make it past her civically illiterate pap, she digs into the suggestions with the most notable one being that she wants more concentrated sittings – five-and-a-half days a week for three to four weeks at a stretch, then three to four weeks back in the riding, insisting that this is also better from an emission standpoint since MPs would be travelling less. But where her logic here falls apart is saying that given this would stress families more that making it more attractive for families to relocate to Ottawa might be a consideration – but unless the families go back-and-forth on the three-to-four week rotations, being even more disruptive to children’s schools – then there is simply falls apart on the face of it. She also proposes that staffers be given compensatory time off instead of overtime, which seems far more unfair to these staffers considering that the work doesn’t stop when MPs are back in their ridings, and you’re forcing people (many of them younger) to work even more than they already do with less time off as a bit cruel.

May also proposes that a UK-style Fixed-term Parliaments Act be adopted, which officially makes her wilfully blind to the problems that it’s causing to Westminster’s operations, and the fact that it reduces the ability to hold a government to account because it requires a two-thirds vote to call an early election beyond a non-confidence vote with a simple majority. I get that she wants this to force parties to come to different coalition arrangements, but when accountability suffers, that’s a huge problem. But as with most of her suggestions for “improvement,” May is more concerned with her own partisan intransigence than she is with actual Westminster democracy, which is why I find her entire paper to be of dubious merit.

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Roundup: A different debate

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This weekend we finally saw our first NDP leadership debate, which was actually more watchable than pretty much any Conservative debate we’ve had so far, so that’s something. Having only four candidates on stage instead of fourteen makes a difference, as does having everyone already in caucus rather than coming in from the outside, and no one so far seems to be running against their own caucus, so that’s also something. As with any NDP debate, however, it was less “debate” and more statements by which they could vehemently agree with and then say “I agree, and let me take that further and say…”

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The only real cleavage that there was over the course of the event was over the role of the resource economy and if there could be a case made for pipelines, and a couple of the candidates were more strident than others. Otherwise, there was a lot of the usual key words and phrases that signal their audience, like the “neoliberal agenda,” the growing one percent (err, except they’re not growing in Canada, and have in fact been shrinking), “unfair trade deals,” and renegotiating NAFTA. If one wasn’t careful, it could be mistaken for a Trump rally.

The format and fewer candidates did allow for a number of non-policy related questions, but some of them were a bit…suspicious, if I can use the word, like they were designed to ensure that they were reinforcing in-group credentials vouching. Maybe it’s just me, but it felt a bit creepy in places.

Meanwhile, I would encourage you to read the very trenchant observations from John Geddes, who nailed pretty much what each of the four candidates are running on out of the gate.

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Roundup: Dealing with problematic senators

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While the focus one on one senator’s words regarding residential schools yesterday, a bombshell dropped late in the day with the Senate Ethics Officer’s report into allegations that Senator Don Meredith had an inappropriate sexual relationship with a 16-year-old girl, and that will no doubt fill the airwaves tomorrow. But while everyone is baying for blood, let me offer a few bits of context.

First, with Senator Beyak and her remarkably clueless statements about residential schools, no, the government cannot ask for her resignation as the NDP are demanding they do. The Senate has institutional independence in order to act as a check on government, so they are powerless. As for the demands that the Conservatives kick her out of caucus, that might do more harm than good because at least within a caucus, she can be managed and hopefully do less harm, and perhaps guided into some education on the subject rather than simply cutting her loose and empowering her to keep making this an issue. And while I think her statement is odious, I also don’t think she meant malice by it, but rather that she is utterly clueless by virtue of framing the issue entirely through her Christianity, and that’s a world view that she’s entitled to hold, no matter what we may think of it. (And seriously, don’t make her a martyr for her religious beliefs). So while I get that there are a lot of people who want to perform outrage and demand her head, I think everyone needs to calm down a little and think through what they’re demanding.

As for Meredith, the report now goes to the Senate ethics committee, but given that the Senate isn’t sitting for the next two weeks, we’ll have to be patient. There are already demands that he be removed, but without a criminal conviction, that’s very difficult to do, and the police opted not to charge him for this (possibly because the complainant stopped cooperating with the police, but I’m not 100 percent sure on that fact, so take it with a grain of salt). With the Ethics Officer’s report, however, one could hope that the police could reopen their investigation. That said, removing a sitting senator without a criminal conviction is almost impossible. There is the possibility that the Senate could vote unanimously to declare his seat vacant, but it’ll be a high bar for other senators to reach that point, because they’re going to want to ensure that he gets due process (which Senators Duffy, Wallin and Brazeau were not necessarily given at the time of their expulsion). But one can be sure that the Senate will want to take their time and deliberate on this one, so while it’s possible that we’ll see a suspension motion when they return, it could be a while before they decide on how to deal with him on a longer-term or permanent basis.

And barring that, maybe the Senate needs to consider a policy of phasing out certain senators…

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Roundup: Tracking the dissenters

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The CBC’s Éric Grenier has posted an analysis of free votes in the Commons in the current parliament, determining which party’s MPs dissent the most often. Part of this kind of analysis bothers me in part because it’s quantitative rather than qualitative, in part with how it was carried out. Rather than actually going through each vote to see a) what kind of vote it was, and b) the substance of the vote, he relied on the measure of how the cabinet voted to determine if it was a whipped vote or not, which is a poor measure, seeing as this would capture all manner of procedural votes (albeit, there haven’t been nearly as many in the current parliament as there were in the previous one). I’m not sure that there are any particular surprises in here in that the Liberals have been given a freer hand with their free votes, which was largely the case with the Conservatives in the previous parliament as well – having a majority usually lets a give their backbenchers a little added room to blow off a bit of steam when necessary. It’s also not unexpected in the fact that the Liberals are a party that doesn’t have a core ideology that they feel compelled to adhere to in the way that most Conservatives and the NDP most certainly do. It also shouldn’t be too much of a surprise that leadership candidates in the Conservatives are breaking ranks more often, given that they’re trying to put their own stamp on the party, so this is their latitude to start doing that. And as for the top “dissenting” voters, the top two are Liberals Nathaniel Erskine-Smith and Robert-Falcon Ouellette, who have a history of being a bit…naïve, if I may be blunt, in some of the positions they’ve taken to date. Erskine-Smith, if you recall, recently got pulled from a committee because his attempts to do more consensus-building wound up getting him manipulated by Tony Clement into voting against his own party’s interests when it came to amendments to a government bill, and Ouellette is often seen saying…not terribly thought-out things in the media. So, does it surprise me that they’re the two who voted against their party the most? No, not really. But Grenier doesn’t have any kind of context around this numbers, and that’s all he does – post numbers because he’s the numbers guy, which can be interesting in reporting, but it also only tells a fraction of the actual story, which is why stories like these do rub me the wrong way.

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Roundup: A hopeless court case

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It’s one of the most predictable performative dances in Canadian politics, which is that when you lose at politics, you try to drag it to the courts to fight your battles for you. In this, case, a UBC professor (and local Fair Vote Canada) president wants to launch a Charter challenge around electoral reform. And in order to do that, he’s talking about getting pledges of around $360,000 in order to get through the legal process.

The problem? This is an issue that has already been litigated and lost. The Supreme Court of Canada refused to hear the appeal of the case that arose out of Quebec, which means it’s considered settled. The current electoral system is legal, it is constitutional, and while you get the odd prof here and there who tries to make an argument to the contrary, it’s settled law. And unlike some of the reversals we’ve seen the courts make over prostitution or assisted dying, there has been no great groundswell change in society that would justify the court in re-litigating the matter. In other words, he’s trying to raise money from people who are desperate to find a lifeline now that their political solution is gone that this is basically a scheme for lawyers to take their money.

This tendency to try and use the courts to overturn political decisions is a growing one, but it’s the same mentality as people who write to the Queen when they lose at politics. Have we had cases where governments have passed bad legislation and the courts have overturned it? Certainly. But political decisions are not bad legislation, and it’s not up to the courts to force governments to adopt what some people consider to be more favourable outcomes. It’s called democracy, and we have elections to hold governments to account for their political decisions. It’s also why I’m extremely leery of people calling for a cabinet manual, because it means that more groups will start trying to litigate prerogative decisions, and that’s not a good thing. It’s time these PR proponents let it go and try to fight it again at the next election. Oh, but then it might become clear that this really isn’t an issue that people care all that much about. Shame, that.

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Roundup: Brace for blanket coverage

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Today is the big day, and it’ll be wall-to-wall coverage of Justin Trudeau’s big meeting with Donald Trump, and we won’t be able to talk about anything else I’m sure. So here we go. At Trudeau’s meeting with Donald Trump he will apparently be seeking assurances on pre-clearance issues, while they will also be having a working lunch where the topic will be women executives. No, really. And the tone now is apparently going to be business instead of “love-in” (though I’m not sure anybody has had a love-in with Trump).

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The Conservatives are “pausing their hostility” with Trudeau in advance of the meeting, apparently showing solidarity in advance of it (though you wouldn’t have known it from QP last week). Here we have some advice from a former Canadian ambassador to Washington, while Anne Kingston wonders which version of Trudeau will be at the meeting. Marc Garneau, who chairs the Canada-US cabinet committee, says that today’s visit won’t focus on our countries’ differences. And Tristin Hopper offers some slightly tongue-in-cheek advice for the meeting.

And then there’s the historical context. Here’s a look at how previous PMs have dealt with unpopular presidents, and the lessons taken from Trump’s meetings with Theresa May and Shinzo Abe. Maclean’s has a photo reminder of meetings going back to the seventies.

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Roundup: The business of selling seats

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Kevin O’Leary went on television on the weekend, because of course he did, and then said a bunch of nonsense. Because of course he did. This time, it was to whine about how it’s not fair that rich people can’t fund their own campaigns, and to say that he thinks that the Senate should be a profit centre rather than a cost, and charging people $100K to $200K per year for the privilege of sitting there. No, seriously. He has said he thinks it’s fine to sell seats in a house of Parliament, and nobody challenged him on that point of the fact that it’s grossly unconstitutional. (Only a later update of the story added quotes from Emmett Macfarlane that appeared to be what he tweeted on the subject).

Not only that, but you immediately had a bunch of chuckleheads showing up on the Twitter Machine going “a plain reading of the constitution would say this is allowed” without any hint that they are being ironic. Before Leonid Sirota beat me to the punch, I was going to remind everyone that the idea of selling Senate seats came up during the Supreme Court of Canada hearing on the Senate reference, where Justice Cromwell cornered the government’s lawyers on the question of “consultative elections” and how they wouldn’t require a change in the constitution. “If consultative elections are allowed, then why not a consultative auction?” asked Justice Cromwell, and well, the government lawyer had to basically swallow that one. (To remind you, they ruled that consultative elections are not allowed without a change to the constitution).

I would also add that for as much as we’ve (rightfully) lambasted O’Leary on this ludicrous idea, the NDP and others have been floating around a similar idea in the past about defunding the Senate and making it a volunteer position – you know, so that just like O’Leary’s plan, it becomes available to only the super-rich who have the time and resources to devote to doing the work. Because that’s exactly the kinds of people we want to fill those seats. Not to mention, if O’Leary thinks that Senate seats should be up for sale, why not any other federally appointed position – judges, heads of tribunals, Commissioner of the RCMP? All profit generators instead of a drain on the taxpayer, right? Yeah, no.

On a related note, O’Leary said that if he does win the leadership, he wouldn’t be in any rush to run in a by-election but would spend time crossing the country to gather support. Because this is what happens when you don’t insist that the leadership be from caucus. It elevates the position above what it should be, and diminishes the role of caucus and the value of a seat in parliament. Leadership races should be by caucus selection, not membership vote. We’ve bastardized our system enough, and we need to reign it in.

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Roundup: Housakos vs Harder

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It took a couple of weeks, but I will say that I was encouraged to read that Senator Leo Housakos was in the press pushing back against Senator Peter Harder’s comments that the Senate hasn’t been implementing changes to its processes as recommended by the Auditor General. As chair of the Internal Economy committee, Housakos has corrected the record to point out that yes, a lot of changes have happened (and in fact were happening since long before the now infamous audit happened), and also hit back at the issue of an audit committee. Harder it seems has bought into the AG’s wrong-headed notion that an external audit body be formed, which I will reiterate is absolutely an affront to parliamentary democracy. The Senate is a parliamentary body, and parliament is self-governing. It needs to be, full stop. Making senators answerable to an outside body puts a stake in the ability to be self-governing, and pretty much says that we don’t deserve to be a self-governing country anymore, and should just hand all of the power back to the Queen. That Harder can’t see that is blind and a little bit gobsmacking. While the Senate does plan to announce an audit body soon, it will be of mixed composition, and if they’ve paid attention to Senator McCoy’s proposal to mirror the House of Lords’ body – basically three senators and two outside experts – then we’ll be fine. But make no mistake – such a body must be majority senators and be chaired by a Senator. Otherwise let’s just start the process of shuttering parliament, and no, I’m not even being dramatic about it.

While we’re on the topic of the Senate, I just wanted to give a tip of my hat to now-retired Senator Nancy Ruth (who was on Power & Politics yesterday at 1:49:00 on this link). Nancy Ruth (that’s one name, like Cher or Madonna) was one of my early entry points into political journalism, when I came to the Hill writing for GLBT publications like the now-defunct Outlooks and Capital Xtra. As the only openly lesbian parliamentarian, and the only openly LGBT member of the Conservative caucus who wasn’t media shy, she was my point of contact into that caucus and that particular political sphere. The relationship I built there gave me my first by-line for The Canadian Press, and I eventually moved into more mainstream outlets. She was an absolute joy to cover, and I will miss her terribly.

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