Tag Archives: The Senate

Roundup: Duffy’s poor arguments

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Day two of Duffy’s bid to sue the Senate, and his lawyer came up with some…novel arguments. And it sounds like the judge wasn’t buying many of them. For example, they tried to argue that because PMO was exerting influence on the Senate’s leadership that it should nullify privilege. That’s…creative, and utterly ridiculous. When he tried to argue that the suspension should be invalid because it was done for political purposes, the judge wondered aloud if that meant she would have to call every member of the Internal Economy Committee to testify as to their motives – and no, that wasn’t going to happen she quickly decided. They also tried to argue that because the suspension wasn’t related to legislation that privilege doesn’t apply. But that’s also ridiculous because the ability to discipline its members is among the privileges outlined in Section 18 of the Constitution Act, 1867. So good luck with that.  Oh, and the “indefinite suspension” argument is also void because it wasn’t indefinite – it was until the end of the parliamentary session, and there was a fixed election date, so it would expire at that point regardless. (Also, the Senate’s privileges allow it to expel a member, so arguing that indefinite suspension is tantamount to expulsion is also not a solid argument).

The final argument was a plea to put the Charter ahead of privilege, which would go against previous Supreme Court of Canada rulings that stated just the opposite – that the Charter doesn’t trump privilege, because that would open up a floodgate to litigation against the parliamentary process. There’s a thing called stare decisis, the doctrine of precedent that binds our common law system, and while there are rare cases where it can be challenges, this isn’t one of them. It’s actually quite audacious that his lawyer would make the case, and I’m not seeing any particular argument about how the judge should invalidate a Supreme Court of Canada ruling. So yeah. Good luck to this case, because I really don’t see it going anywhere fast.

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Roundup: Fighting to preserve parliamentary privilege

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Senator Mike Duffy’s court challenge started yesterday, and the Senate as a whole fought back to have the Chamber excluded from his lawsuit under the rubric of parliamentary privilege. The Senate’s privileges include the ability to discipline its members – and this needs to be reiterated firmly, because as a self-governing body with institutional independence, that’s the only way that senators can be disciplined outside of a criminal process. This is also why there is a differentiation when it comes to the judge asking the hypothetical about the Speaker shooting someone – privilege does not necessarily cover criminality.

Part of what Duffy’s lawyers are trying to argue was that the Senate’s punishment of his suspension without pay should be subject to judicial review because he was acquitted of all charges by the Ontario Superior Court. The problem is that he was found to have broken several of the Senate’s rules, regardless of what the court found, and the Senate is empowered to deal with those breaches as they see fit – not to mention, it was also about making sure that discipline was seen to be done, which was important for a body that was facing scandal and public outrage. This doesn’t mean that they went about it in the best way, however – the pressure (especially coming from PMO, which the Senate leadership at the time capitulated to) wanted to have these suspensions out of the way immediately, and so Duffy’s interventions were cut short, and Senator Pamela Wallin never got her chance to defend herself at all because of the haste. Due process was not necessarily followed, and yes, that’s a problem. However, that is not a problem that can be sorted by means of judicial review, because that would undermine the Senate’s ability to be self-governing (just like the Senate subjecting itself to external financial control like the Auditor General wants would undermine its privileges and ability to be self-governing).

It can’t be understated how damaging it will be if we let the courts start interfering in the operations of Parliament, in either the Commons or the Senate. The constant injunctions to legislation, the threats of lawsuits, the massive breach of the doctrine of separation of powers – it’s not something that we should mess with. Duffy may feel he was treated unfairly – and maybe he was to an extent – but it’s no reason to start pulling bricks out of the wall when it comes to privilege. And if the judge has any sense, she’ll respect that separation and take the Senate out of the lawsuit.

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Roundup: A diminishing work ethic?

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The Senate rose for the summer yesterday after the morning’s royal assent ceremony, which I find to be extremely curious given that they were scheduled to sit for another week and had a whole new batch of bills sent to them when the House rose on Wednesday. You would think that they would want to get started on them, and possibly even pass a few more of them before rising for the summer, but apparently not, and that does trouble me a little bit. We saw this happen at Christmas, and we’re seeing it again now, where the tradition that the Senate sits at least an extra week to get through the raft of bills sent to them by the Commons is being abrogated by Senate leadership that seems less interested in demonstrating that they’re doing the work that needs to be done when MPs take off.

Speaking of Senate leadership, our good friend, the Leader of the Government in the Senate – err, “government representative” sent out a press release yesterday that pat himself on the back for all of the changes to make the Senate more independent, which he equated with making better laws. Why? Well, 13 out of 51 bills in the current session of this parliament were successfully amended by the Senate, so that must mean it’s working! Well, maybe, but it ignores the context that the current prime minister is more willing to entertain some amendments, unlike the previous one. That gives room for the Senate to propose them, but the vast majority of the amendments that do get accepted tend to be technical rather than substantive ones. Not that it doesn’t happen – the government has backed down on a couple of occasions and accepted major amendments (like with the RCMP unionisation bill, which had a Supreme Court of Canada ruling to back up the amendments), but for the most part, the government has resisted substantive amendments to its legislation, so much that you have their new appointees like Senator Pratte openly questioning why the government bothered with creating its “independent Senate” if they’re not going to listen to what it has to say. Not that I’m suggesting that the government should accept every Senate amendment, but there are recent examples where they probably should have, such as with the impaired driving bill that passed this week. There was overwhelming evidence to show that this was almost certainly unconstitutional and would create havoc within the justice system, but the government refused to listen, and senators backed down and let the government reject their amendments rather than insist upon them in the face of such overwhelming testimony. If Harder were really concerned that the Senate was improving legislation, he might not have insisted that once the government rejected those amendments that the Senate back down rather than stand up for some constitutional principles, but he didn’t. Make of that what you will.

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Roundup: Judging Question Period the Toronto Star way

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The Toronto Star released a package of stories yesterday on Question Period, and because this is the way we do journalism these days, it was full of data analysis that looks shiny, and hey, they got some investigative reporters to count questions and responses. Absent from that? A hell of a lot of context. So while you got some backbenchers who don’t participate to gripe about it being scripted (which it is), and some counting up of the talking points (without any context as to why these developed), or a surface-level look at the political theatre of it all (again, absent a lot of context or history, or bigger-picture look at the ways in which the messaging has changed and how it is currently being used to gather social media clips). It’s inch-deep stuff that, for someone who covers QP every single day, is mighty disappointing. (Additional point – most of the writers of these pieces have not attended QP, which is a problem because watching it from your desk in Toronto is not the same thing as being there in person. At all).

What is the most disappointing of all, however, is their “Question Period fact check” piece, which takes a sampling of questions and answers, and assesses the veracity of the questions being posited and the responses. Why it’s a problem is because they fell into the problem of how questions are framed – surface truths that are stripped of context to say something that it doesn’t. An example is when the Conservatives railed that the PBO said that carbon taxes would take $10 billion out of the economy. Which isn’t actually what he said – he said that it would take $10 billion out of the economy if the revenues weren’t recycled through tax cuts or other measures but were just given directly back to taxpayers. That’s a whopping difference in the message, because using only the $10 billion figure is a disingenuous attack line. And what did the “fact checkers” rate it? “True!” even though it wasn’t actually. And the piece was full of problematic fact-checks like that, which makes it infuriating for someone who actually pays attention to what is being said and how. So while everyone pats themselves on the back for the piece, I’m really unimpressed with the package as a whole.

Equalisation reform

Saskatchewan Premier Scott Moe released his plan to reform equalisation yesterday and it’s…not equalisation. It’s like he doesn’t get the concept at all. Which at this point should not surprise anyone, because it’s been so badly reported on for decades and has been the tool of demagogues to bash Quebec rather than understanding how the system actually works – paid for by federal income tax out of general revenues to a province that doesn’t have the fiscal capacity to offer comparable services. It’s not one province writing a cheque to another one. For provinces that pay into it more than they get out, it’s because they have high incomes, thus they pay more income tax. It’s not that mysterious (and yet most reporters simply write “it’s complicated” and leave it at that). And Quebec has structural issues related to their fiscal capacity (and yes, their tax rates are already high relative to other provinces) but the per capita equalization they receive is actually low, not that the shock-and-awe figure of the total amount isn’t constantly being weaponized.

https://twitter.com/acoyne/status/1009498701151158272

And what does Moe suggest? Basically taking money from Quebec’s share and giving it to all provinces whether they need it or not. It’s bullshit that fortunately a number of economists called out – not that it’ll matter, because the audience that Moe is speaking to dismisses what economists have to say. Sigh.

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Roundup: Silence from Trudeau on child removals

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While all attention is glued to the horror show south of the border when it comes to child removals from migrant families, there is a lot of commentary around the conspicuous silence by this government, and from Trudeau in particular. While he said that he’s not going to “play politics” around this, some of his ministers have made comments to the effect that this policy is “simply unacceptable,” but Trudeau is largely mum. If anything, the government has taken a particularly defensive tone by talking about how much work they’ve done to reform immigration detention in this country, and to not separate children from their parents and only detain when necessary (and the record has improved, but it had some particularly dark spots in recent years, from suicides in detention to people being housed in provincial jails when there were no other immigration detention facilities available). There is an assumption that this is because he’s trying to “play nice” with Trump, but I’m not convinced about that.

If anything about the particular problem we’ve had with irregular border crossers over the past two years has shown, it’s that there is a narrative about how Trudeau’s #WelcomeToCanada tweet created the crisis. I’m not convinced that it did, but that’s the narrative. Given this crisis at the American borders, with migrants coming in from conflict zones in Central America, and with global refugee numbers at an all-time high, you can bet that Trudeau is doing his level best to be circumspect in all of his statements, not because of Trump, but rather to avoid another surge of migrants headed for our borders, and into a system that is already swamped (in no small part because they’ve been unable to make timely appointments to the IRB, and because it’s still under-resourced). Now, if Trudeau made sweeping condemnations about what’s happening in the US, that could be seen as another open invitation, which would stress our system even further. Add to that the calls from the NDP and others to suspend the Safe Third Country Agreement – a move that would immediately cause a massive rush for our ports of entry to claim asylum, again, swamping our already stressed system, beyond the diplomatic escalation that removing the “safe” designation from the US would cause. And the Trump administration may be fine with it, and do all it can to push more of their migrants to our borders and say “good riddance.” Regardless, I see Trudeau’s silence as an abundance of caution and trying not to create a larger border crisis than the one he’s currently dealing with, no matter the fact that what’s happening in the States is unconscionable.

https://twitter.com/StephanieCarvin/status/1009287591957581824

Meanwhile, as if to highlight Canada’s own record, there was testimony before the Senate Aboriginal People’s Committee about how child removals within Indigenous communities continues to erode them, given that currently child welfare workers are more likely to separate children from their families than get proper assistance for those families in crisis, and that the numbers today are akin to another residential schools system. So, yeah. We don’t have a clean record, and I’m sure this would quickly be thrown in the government’s face if they said anything.

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Roundup: Covering up non-existent data

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With the Conservatives still railing about the supposed Carbon Tax Cover-Up™ (yes, Pierre Poilievre is still trying to make fetch happen), their allies are trying to get in on the action. Jason Kenney tried, and Andrew Leach took him to task for it – and it’s some pretty crucial context because pretty much everything he and the Conservatives are saying is utter bunk. But they’ve set up the narrative that this document they’re demanding is some kind of smoking gun, because they’re building the narrative that this is all some cash grab by a government dire to pay for its spending (never mind that the revenues are going back to the province from which it was collected and not federal coffers, but the truth has never mattered here).

Later in the day, Lisa Raitt tweeted about how one gas station in her riding lowered its prices and there were line-ups around the block! People are struggling! Carbon taxes will devastate families! Again, Leach took her to task, especially the point that this is the whole point about carbon taxes – to change behaviours through price signals. You know, something a free market conservative should espouse (but Raitt is not a free market conservative, but a right-flavoured populist, and said as much during her leadership campaign).

Meanwhile, Andrew Coyne points out the fact that what the Conservatives are demanding is a mix of publicly available data combined with provincial implementation and offsets that nobody has yet, so the government can’t actually provide the data (as some of us have been saying for weeks now), while adding that there is more than a little hypocrisy for a party that keeps demanding disclosure but won’t offer any of their own when it comes to their own supposed plan. But hey, this is about politics and coming up with a scary number that won’t have any proper context or that makes assumptions that no behaviours will change, which misses the point. But, as I’ve said time and again, this isn’t about the truth. This is about the Conservatives building a scary straw man to go to war against, because that’s how they think they’ll win in 2019. And maybe it’ll work. Time will tell.

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Roundup: Accidental passage

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The spring sitting of Parliament is almost at its end, and it’s a bit of a race to see what is left to be passed – other than the cannabis bill, of course. It’s looking increasingly unlikely that the elections bill will clear the Commons, let alone even begin study in the Senate before they rise, and it’s just one of several agenda items that this government is having a hard time pushing through – not that the opposition has made any of this easy for them (not that it’s their job to), particularly as several sitting days have been lost to procedural shenanigans including the vote-a-thon tantrum last week. But down the hall in the Senate, there were a few quirky things that happened last week, in which both the budget implementation bill and the impaired driving bill got passed prematurely, entirely by accident.

As I understand it, according to my Senate sources, the intent was that the Conservatives had meant to ask for leave to deal with the report from the national finance committee on C-74, and then start third reading at the same time, but the Senator moving the motion got confused and inadvertently requested the vote for third reading happen immediately, and because everyone thought they were dealing with the report, they agreed. Oops. Several senators had been looking for amendments to C-74 at third reading – in one case, around trying to get propane and natural gas as legislated exemptions as farm fuels to the carbon tax backstop legislation included in the bill, but that didn’t happen. (Senator Robert Black later used the procedural manoeuvre of speaking in reply to the Speech from the Throne to get his concerns about C-74 on the record).

Likewise, with C-46, the impaired driving bill, the general disorganization in the Chamber had it passed on division (a particular kind of voice vote) rather than a standing vote, but that’s a bill that I suspect we’ll see pushback from in the Senate if the government insists on the clause on random alcohol screening, given the overwhelming weight of expert testimony against the provision, so any back-and-forth between the chambers will be around that, and you can guarantee that we’ll see the threats that making the Commons sit longer than Friday will cost so many thousands of dollars to Canadians, and wouldn’t that be just terrible, and we’ll all roll our eyes because the inherent cynicism that MPs shouldn’t sit longer to debate necessary legislation is a little bit offensive when you think about it for half a second. So will MPs be going home for the summer by Friday? I guess we’ll see who digs their heels in.

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Roundup: Cynical procedural gamesmanship

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Thursday night’s tantrum vote-a-thon ended mid-morning on Friday, long before it was supposed to have run its course, and no, the government didn’t capitulate and turn over that report that the Conservatives have been portraying as some kind of smoking gun for months now. No, after hours of high-minded exhortations that this, on the anniversary of the signing of the Magna Carta, was about no taxation without information, or that this was some kind of cover-up by the government intent on raising the cost of living for everyone, they decided to pull the plug as soon as the clock struck ten. Why? Because at that point, it would be too late to start Friday sitting hours in the Commons, and thus cancelling the day’s planned debates around the cannabis bill (where they would have finalized debate on the Senate amendments and send it back to the Upper Chamber). It is probably one of the most cynical procedural stunts that I have seen in all of my time on the Hill, dressed up as bringing attention to the so-called “carbon tax cover-up,” which is itself a cynical disinformation campaign.

Worst of all was the hours of sanctimonious social media warfare that was sustained throughout it, whether it was the Conservatives dressing this up as some righteous fight over the refusal to release the information (which, let’s be clear, was apparently a projection based on the campaign platform that would mean nothing given that the carbon pricing plans will be implemented by provinces, and where the revenues will be recycled by those provinces and is largely irrelevant to the discussion), or the Liberals crying that the Conservatives were keeping them away from Eid celebrations in their ridings (so much so that Omar Alghabra accused the Conservatives of Islamophobia, and then the real wailing and gnashing of teeth started). It was so much self-righteous bullshit, and it made everyone look bad.

The Trinity Western decision

Yesterday the Supreme Court of Canada ruled that the law societies of BC and Ontario could decide not to accredit the graduates of evangelical Trinity Western University’s proposed law school on the grounds that the mandatory covenant that students are expected to sign infringes on the rights of LGBT students, particularly because it mandates that any sexual activity they engage in must only be within the confines of a heterosexual marriage. Of course, it’s more technical than that, because it boils down to standards of reasonableness with the decision that the Law Societies as accrediting bodies can engage in, and I can’t pretend to understand the nuances of it all – but the very smart legal minds that I follow had some trouble wrapping their minds around it all as well, because the balancing of rights is a difficult issue. Some of the legal minds I follow felt this was one of the worst decisions in years, but I’m not sure how much of that is ideological either. It’s also worth noting that this was the last decision that former Chief Justice Beverley McLachlin participated in.

In reaction, here are three legal reactions to the decision, while Chris Selley worries about what it means for religious freedom, and Colby Cosh looks at what the decision means for the Supreme Court, paying particular attention to Justice Rowe’s concurring decision on the meaning of freedom of religion.

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Roundup: Another useless voting marathon

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Unless a miracle happens and someone buckles, MPs will still be voting when this post goes live, because the Conservatives decided to demand another marathon vote session on the Estimates in order to prove a point. The point was that they want the government to table a document prepared by the public service about carbon pricing, which allegedly shows the fiscal impact – but it was redacted when released. The Conservatives see this as the smoking gun they need to “prove” that the federal carbon price backstop is a cash grab. Err, except the federal government isn’t keeping the revenues, and the provinces have until this fall to announce how they will be recycling the revenues, whether through tax cuts or whatnot, and lo, the government last month tabled a report that basically showed the efficacy of carbon pricing and that they’re waiting for the provinces to announce what their systems will be.

The Conservatives decided that their pressure tactic would be another round of line-by-line Estimates – because that worked so well the last time when they tried to force a meeting on the Atwal Affair™, only to buckle before votes could go into the weekend, and then they blamed the government for creating their own discomfort. Kind of like blaming someone else for when you hit yourself in the face on purpose to get attention. “You made me do this!” they cried. No, they didn’t, and worse, it was not only tactically incompetent (the votes had nothing to do with the demand then, and it doesn’t this time either), but by overplaying their hand, they voted against line items in the Estimates for things like funding veterans pensions or public services, all of which went into attack lines. And this time, because the government scheduled the vote for 10:30 PM, the fact that the Conservatives forced the 200 votes rather than the single vote means that Liberal MPs can complain that the Conservatives were keeping them from attending Eid celebrations in their ridings at dawn (some of them going so far as to cry Islamophobia). It’s a reach, and both sides are self-righteous about this, but come on.

As for the Conservatives’ demand, well, it’s a lot of disingenuous nonsense because the costs will be determined by how the revenues are recycled, which the federal government has no control over. Poilievre has been trying the semantic arguments that because it’s a federally-imposed tax that they need to know what the impact will be, focusing only on the cost before revenues are recycled, which is again, disingenuous and the precursor to misinformation. And if they were so concerned, they can do the analysis themselves – as Andrew Leach points out. But they don’t want to do that – this is all cheap theatre, performative outrage that the government is “covering up” information that they’re characterising as something it’s not. But as truth and context have become strangers in this parliament, none of this is unexpected.

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Roundup: Bernier booted from shadow cabinet

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The surprising news last night was that Andrew Scheer had finally had enough and removed Maxime Bernier from his shadow cabinet, reassigning his critic portfolio to Matt Jeneroux. The ostensible reason that Bernier was booted? That he uploaded that chapter from his cancelled book in which he decries the tyranny of Supply Management. Never mind that the chapter was already floated to the Globe and Mail and was published weeks ago, which led to the outcry that had Bernier pull the book until his political retirement. Scheer said that this constituted Bernier breaking his word to caucus on the book, never mind that it was already in the public domain.

A more plausible explanation? That Scheer was getting a lot of heat about Bernier’s views about Supply Management in the face of Trump’s tweets about dairy tariffs that are part of the system, where the government could point to Bernier being on Scheer’s front bench as proof that the Liberals cared more about Supply Management than the Conservatives did. In fact, the swipes about this got increasingly nasty in QP the last few days, to the point that Luc Berthold got right indignant about it when it was thrown in his face yesterday. Add to that, there’s a by-election coming up in a rural Quebec riding, where this is one of those issues that they care a lot about, and Scheer (who is campaigning there later this week with the former Bloc leader who has renounced separatism and taken out a Conservative membership card) wanted to prove that he’s listening to Quebeckers on Supply Management – even though Bernier himself is a Quebecker. (Note: This is also why the Conservatives rarely ask Supply Management questions in English during QP – this is all about pandering for Quebec votes).

I do think that this is further proof that there is little room in the current Conservative party for actual free-market conservatives, and that they are working hard to cravenly embrace right-flavoured populism that is divorced from the values that they claim to espouse (as I wrote a year ago when Scheer first won the leadership). My only question now is whether Bernier will be banished to the nosebleeds along with fellow disgraced caucus member Kellie Leitch.

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