Friday, 28 December 2012

The Chief and the Prime Minister: Competing Conceptualizations of Sovereignty and the Canadian State


**Disclaimer** This post deals with an incredibly sensitive issue and, as is often the case, there is the potential for misunderstanding or, more often, blind misinterpretation. My intention here is not necessarily to take sides but to understand each of the sides in turn. There is more involved than simply the personalities of leaders. Rather there are fundamental differences between two conceptions of the Canadian state and the relationship between governments. This post merely attempts to elucidate these historic positions as a way to explain the reluctance of the Prime Minister to meet with Chief Theresa Spence and of the Chief to meet with the Minister of Aboriginal Affairs.These are differences which are fundamental yet, I think, entirely overlooked by both sides and the media.



There is much hyperbole explaining the reasons why Prime Minister Stephen Harper has – continuously – refused to meet with Chief Theresa Spence. The facile response has been to hurl invective or to make broad accusations of racism. This is entirely unhelpful. Certainly the Prime Minister operates within a political system resting on a foundation of colonialism and racism. These structures cannot simply be torn down. Moreover, there are more fundamental and practical reasons. Not everything can be reduced to racism. Indeed, it is not a sufficient factor. There is more going on here.

Thursday, 27 December 2012

"Democracy or Harper" or: why are you still listening to that page?


In a culture where Malcolm Gladwell is a bestselling author, the bar for whom or what captivates our attention is set considerably low. A host of figures are lifted up as authorities quite inexplicably. Their status provides a soapbox from which these individuals speak and a ready-made audience willing to hang on every word. They suddenly have access to a range of media outlets from print to television. Their musings are transmitted via blog and disseminated via Twitter. Status gives weight to the message.

Thursday, 13 December 2012

Peter MacKay and the Slow, Agonizing Death of Responsible Government



At the core of the Canadian system of Parliament government is said to be the basic principle of responsible government wherein the political executive is held to account for its conduct before a popularly elected legislative assembly. The Canadian experiment with responsible government emerged largely out of a desire to seize control of the public purse by taking discretionary spending decisions out of the hands of the appointed governor – then responsible to the Imperial Parliament at Westminster – and placing them more broadly within the democratic control of the colony’s assembly. In short, while the concept has since morphed and expanded to encompass a broader conceptualization of accountability, it remains at its core a system primarily concerned with ensuring accountability over spending. Funds for the executive and its programs are issued from Parliament and it is here that a ministry must account for itself.

Friday, 2 November 2012

Poppy Politics: Remembrance, Inc. & Quebec

Another Remembrance Day dust-up has emerged in what has become an almost annual event unto itself. Quebec Premier Pauline Marois raised the ire of several groups - including some veterans - but particularly anglophones and the Royal Canadian Legion. Marois's crime is, in essence, copyright infringement. She adapted the poppy to include the Fleur-de-lis at its centre.

Mariois's crime, of course, is magnified by the fact that she is - as critics and the media so dutifully remind us whenever the opportunity arises - a sovereigntist. As such she is automatically making a political statement, using the sacrifice of Canadian veterans - my phrasing is deliberate - to advance her own machinations for a sovereign Quebec.

Saturday, 20 October 2012

Constitutional Realities & Denominational Rights

While I am firmly on the record as opposing the continuation of special denominational rights for Ontario's Catholics, I am deeply troubled by some of the arguments being made by those attempting to overturn the status quo via the courts. I applaud Reva Landau and the Canadian Civil Liberties Association (CCLA) for bringing attention to the issue, the forum is entirely inappropriate.

Again, I agree with the crux of the argument put forward against perpetuating these so-called rights. These are, however, purely moral arguments for equality. They are not legal or constitutional arguments.

Prorogation, Convention and Democratic Legitimacy

On TVO's The Agenda, constitutional scholar Peter Russell makes the case that the recent prorogation of the Ontario legislature by out-going premier Dalton McGuinty was illegitimate and that the manner in which he terminated the current session of parliament violated basic practices and conventions around the use of what is, when used correctly, a legitimate tool of parliamentary governance. Russell criticizes the move on the grounds that it violates basic principles of Canada's constitution, namely responsible government.

Wednesday, 17 October 2012

Prorogation & the Problem of Civic Illiteracy


In media and partisan circles, the greatest reaction to Ontario premier Dalton McGuinty's decision to step down has been over his decision to prorogue the legislature his way out the door. Indeed, prorogation itself has become a four-letter word, something to be reviled as inherently unjust, sneaky and, above all, anti-democratic. This is no doubt the product of the 2008 prorogation crisis in Ottawa. The current issue, however, has also raised once again the reality that ordinary Ontarians and, more troubling, our supposed professional pundit class have little grasp of the basic concepts of governance in this country.

Saturday, 22 September 2012

Are the Conservatives 'Warriors for Gay Rights'? Hardly!




If this writer responded to every idiotic article and statement passing through the pages of the National Post he would be unlikely to leave the confines of his desk. Nevertheless, there are moments when an article appears that is so earth-shatteringly naive and idiotic that it deserve a response. In today's paper, columnist Tristin Hopper raises the question "have the Harper Tories become unlikely warriorsfor gay rights?" He then proceeds to outline a litany of areas in which the Harper Conservatives have been advancing the cause of gay rights across the globe.

On the surface is does seem like the party has done a rather sudden about face on the issue. Its stance of queer issues has seemed to soften. This reflects a few factors. First, the reality is that the tide of public opinion has turned sharply against the social conservative membership of the party. By and large Canadians – by a healthy and steadily growing majority - support the gains made by the LGBT community. There is less outright hostility en masse to equality of treatment, whether it is for social benefits or the rights to marry. Moreover, this is broadly the view of the median voter, a segment of the population that was indispensable to the party’s victory in 2011.

Wednesday, 5 September 2012

Factually Inept: Media, the Quebec Election and the Distortion of Politics


It will likely strike many as odd to state that no Canadian, from 1867 to the present, has ever voted to elect a first minister, be it a provincial premier or a federal prime minister. The statement, it seems, flies in the face of popular wisdom. Indeed, we have elections and our political executive is headed by an individual called a premier or prime minister. How then is it possible to state that Canadians have never voted for such a position? Given the way our political system is presented by this country's political and media elite, it is no wonder that such a seemingly suspicious claim would raise vocal objections.

Monday, 3 September 2012

Constitutional Change and the Extinguishing of Denominational 'Rights'



So many contemporary debates end up mired in the past. Indeed, the present and past seem so often to meld, ignoring present realities and distorting the realities of the past. The ongoing debate in Ontario over the future of the the separate Catholic system is case in point. For many non-Catholics, a separate taxpayer-funded religiously based system of education is an affront on multiple levels. It is a clear violation of principles of fairness and equality. To many Catholics the issue is one exercising a centuries-old right under the Constitution.

Thursday, 21 June 2012

CONspiracy Theorists: Politics, Patronage and Partisanship

Mel Gibson in Conspiracy Theory (1997)
There are some people - let's call them non-Conservatives - who look at everything the government of Stephen Harper does with suspicion and, not surprisingly, see conspiracy around every bend. There is much in this current government to dislike. It is authoritarian, smug, secretive, dishonest, corrupt (to degrees) and, in many regards, undemocratic. Acknowledgement of this fact, however, often leads many casual observers down a spiral of idiocy.

It is one thing to condemn a government. It is quite another to condemn entire institutions as faulty or, worse yet, corrupt, simply because of the behaviour of one government. A government is not a reflection of an institution. Governments are transient. Their actions and policies can be reversed. Conversely, institutions are more permanent, yet not unalterable, but require a substantial degree of time to manipulate and change by a single regime. Stephen Harper, even with an majority, will be unable to fundamentally change our institutions. His impact, even if it is is detrimental, is reversible. The Parliament of today, after all, cannot bind future Parliaments.

Wednesday, 20 June 2012

Time for Liberals to Forget Jean Chrétien


In an interesting, although not unproblematic commentary, former Liberal leader Michael Ignatieff lays out a rudimentary vision of a reinvigorated party. The key to success is to reach out to younger generations of Canadians in ways it and the other major parties haven't. This, of course, represents a daunting challenge in an age where young people are often disengaged with party and electoral politics, favouring instead participation in broader social movements if indeed they choose to participate at all. It's an idea with potential, but remains far from fleshed out.

Ignatieff's piece can also be read is a subtle broadside against the entrenched party establishment, both within the Parliamentary and pure party wings of the Liberals. Of course, it doesn't name names or directly call out individuals within that leadership. It should.

Tuesday, 19 June 2012

The Democratic Bypass


Recently there have been a spate of troubling suggestions by a number of groups - left, right and centre - advocating for a complete bypass of proper democratic mechanisms in order to achieve certain policy goals. What has spurred these moves has been the rejection of these groups and their desired outcomes by duly appointed representatives in each of their various constituencies. This trend is alarming as it signals, at least in part, that individuals and organisations no longer regard elected assemblies as being repositories of legal or moral authority. If an outcome flies in the face of one's expectations, the defeat is seen as inconvenient but not final. It amounts to a collective bypassing of the democratic process. In essence, these groups are attempting to go over the heads of the people.

Of course, not all attempts at circumventing assemblies are illegitimate. Their are times when there are just grounds for seeking remedy. Governments that overstep their bounds and violate constitutional principles or rights laid out in the Charter should be brought to account by courts. Such instances, however, remain exceptional and should not be used to override basic pieces of legislation or public policy. To do so cheapens rights and abuses a remedy that is already subject to much criticism. Additionally, public pressure may be brought by protest to focus attention on abuses, but ultimately, regardless of the outcry, the elected assembly remains the final arbiter of public policy, unless an abuse can be proven in court.

Toronto's boisterous mayor, Rob Ford, has publicly (and woefully) stated that decisions of Toronto's city council - the amalgamation of its peoples' collective political will - is 'irrelevant' and should be ignored by the province and its arms-length transit agency, Metrolinx. As is often the case, however, Ford contradicted his own claim, demanding that the province respect the will of council and allow the sale of surplus TCHC houses. Ford's contradictory claims can easily be attributed to his bravado and the brashness of his approach. As foolish as his claim to irrelevance was, there were few, apart from his supporters and right-wingers, who truly took his statement as fact. 

Two recent instances have been more troubling. In both, groups marginalized to various degrees by the government of the day have attempted to vent their frustration to a higher order. Toronto Cycle - formerly Toronto Bike Union - has sought to remedy what it sees as the inadequacy of  policy made in Toronto regarding cycling infrastructure by taking its complaint to the province of Ontario. The complaint stems from the rejection of biking as a legitimate means of transit by the Mayor - indeed, Ford sees bikes as mere leisure - and the removal of existing bike lanes on Jarvis Street and alterations on other thoroughfares. The policy may be wrongheaded, based on anecdotal evidence and may do little to enhance the roads for drivers as claimed, yet however ill-thought the policy itself, the legitimate means to fight it or have it overturned is at council.

Certainly these advocates are correct: municipalities are creatures of the provinces. This is a constitutional fact. However, what is clear from the spirit of the text and subsequent practice is that it was never intended for the provinces to directly administer cities from the centre. Ontario, through a host of legislation and the establishment of numerous agencies, boards, and commissions (the Ontario Municipal Board for instance), essentially allows local administrations to govern local affairs. Indeed, it establishes in legislation the principle of local democracy by mandating the establishment of council and an executive. Moreover, it includes means of challenging the decisions of council through the aforementioned agencies, boards and commissions. In short, appealing to Cabinet to challenge policy runs counter to democratic practice and attempts to imprint onto the province a role as direct administrator it never intended for itself. Constitutionally Ontario has the power to intervene in any aspect of a city's affairs, this does not, however, mean that doing so is justified.

Another group dissatisfied with recent public policy is the Ontario Medical Association (OMA). In an attempt to bring the deficit somewhat closer to balance, Ontario's premier, Dalton McGuinty, enacted a series of cuts to  to fee rates for the province's doctors. In fairness, it did in a less than consultative manner. Nevertheless, it remains wholly within the purview of the province to legislate in this way. Predictably, the OMA immediately launched a 'Charter challenge', claiming that doctors' rights had been violated due to the dearth of consultation. As with bike advocates, this attempt to go over the head of the peoples' elected representatives is wrongheaded. There is no Charter right to consultation in the formation and implementation of public policy.  The move shows incredible disrespect for the democratic process.


The two examples are merely formal manifestations of this phenomena as instigated by two highly organized lobby groups. Ironically, individuals and groups advocating for democracy have consistently advocated an approach which is antithetical to democratic practice. Take for example interim Liberal leader Bob Rae, who in November called on the Governor General of Canada to withhold royal assent to the Conservative bill that ultimately killed the Wheat Board. Apparently, in order to strengthen the democratic process and uphold the law, it was necessary to ask an unelected figurehead with no precedent to resort to an act that would have no legitimacy to override the collective will of the Canada in the form of the elected House of Commons and abort a bill desired by an executive with the confidence of the house. Indeed, a Quebec woman became something of a folk hero by writing the Queen to request that she fire her Prime Minister. One wonders what is more troubling: the utter lack of understanding of the functioning of this country's institutions or the widespread support for a course of action so contrary to practice and democratic principles.


At its core democracy is about making decisions. It begins with an electorate choosing those who will govern on their behalf. Choices must also be made in the realm of public policy. By the very nature of this enterprise, no legislative agenda will please everyone. There will be, to put it bluntly, winners and losers. Popularly elected bodies, be it local council or the provincial legislature, have institutional, democratic and moral legitimacy to make decisions. When groups - be it cycling advocates or doctors - find themselves facing the blunt end of policy decisions, the rhetoric shifts from democratic to technocratic. The democratic avenues having been foreclosed, the battle is fought on the value of the policy, whether a policy is 'good' or 'bad'. Cyclists are essentially arguing that the policy is bad policy and should thus be overturned. The OMA is making a similar case, but taking its battle in another direction. Both forget that these are normative decisions.  

There are no neutral statistics, no political facts waiting unblemished to be picked up and converted into 'good' public policy. All require mediation and all are subjected to normative frames of reference. The Left should be particularly careful when advocating for policy on such technocratic grounds given that the Right can and is making the same arguments in Europe. One need look only to Italy - where an installed technocrat is implementing policy on such grounds - to see the danger. At some point groups need to respect the will of elected representatives, and thus the electorate, whether they agree or not. This does not mean ceasing to agitate or rallying civil society. This can be done without negating electoral democracy.

These attempts at a democratic bypass are symptoms of a larger malaise, but they are also product a mistaken conceptualization of what democracy itself means. At the risk of invoking 'the silent majority' - the tired, largely fictitious multitude used, often effectively, by the Right - minorities, albeit vocal ones, must resist the urge to imprint their own views onto the public by using their own enthusiasm and extrapolating from that the larger public sentiment. Moreover, there needs be a balance between two extremes, between those who see the ballot box as the sole measure of democracy and those that see civil society movements (of varying popularity and membership) as the singular expression of democracy. The reality is that both are required for a healthy democracy. One side cannot sustain a democracy by negating one to bolster the other. To borrow a tired analogy, they are two sides of the same coin. Civil society should not be marginalized, yet it has a reciprocal obligation to respect democratic outcomes unless there is a constitutional question at stake. Faith in our institutions - from city councils to provincial legislatures - cannot be restored by undermining their authority or legitimacy in the name of democracy. That way lies ruin. 

Friday, 15 June 2012

Opposition, Omnibus & the Hyperbole of Democracy

As with any show of political theatre - which at its core was what was on display in Ottawa over the past few days - some performances tend toward excess in form and prose. While some MPs are to be commended, particularly those from the 'minor' parties, the rhetoric eschewing from the Official Opposition once again illustrated a profound misunderstanding of the very system of government of which it wishes to assume the reins of power. One would assume that a prerequisite for governance - beyond, of course, an electoral mandate - is an understanding of the institutions and conventions which underpin that system. The conceptualization of Canadian Parliamentary politics as espoused by the NDP is fundamentally and irrevocably at odds with the working and historical reality of Westminster institutions.

Most strikingly, the Loyal Opposition seems intent on implanting onto that role something which is entirely antithetical to it. Chiefly, it seems intent on conceptualization opposition as if its role is legislative and governmental. Contrary to the rhetoric and some intimations, the 'Official Opposition' is not a part of the government. The government - that is, the political executive - is comprised of members of Parliament chosen by the Crown as representatives by virtue of commanding the confidence of the House. It is the government that presents a legislative agenda to the elected assembly for its approval.

Yes, the Opposition has ample opportunity to participate in the legislative process, most directly through committee amendments or private member's bills. It is, however, important to make an important distinction here. It is not by virtue of being the Opposition that this is possible, rather it is by virtue of each individual as elected representatives - Parliamentarians - and not by party standing. What is often lost in the din of party politics - coupled with a severe public misunderstanding of how Parliaments form - is that the Commons is made of up of individuals and not parties. It is the collective will of individuals - although often bound by party loyalty (or discipline) - that results in the formation of this collective.

The role of the opposition is primarily to do just that: to oppose. It exists to hold the government to account for the actions it undertakes, including its legislative agenda. It does this primarily through Question Period - although the utility of that exchange is now entirely doubtful - and committee work, but also by engaging with the Canadian people, often through soundbites delivered by the media. Yet the current Opposition seems intent on inflating and conflating the role beyond its current limits. One need only look to the use of backdrops and signage in the wake of the ascension of of the New Democrats to that role - role, not office - largely to enhance its own standing. It is intent on creating an office that existed only loosely before.

Part of this inflation of the role has been buttressed by the conflation of the Opposition with a legislative role. As successive leaders beginning with Jack Layton and continuing with Thomas Mulcair have spuriously claimed, the role is not simply one of opposing, but of proposing. As Mulcair articulated recently, "We're there of course as the Official Opposition, sometimes to call the government to account, to oppose, but more and more you're going to hear us propose". The claim is that Canadians want Parliament to work together and, as such, that this somehow obligates the government not only to entertain ideas from opposition parties, but also to incorporate them into the agenda.

This is a phenomena that I've coined the 'Laytonian Fallacy' and it is entirely at odds with basic operating principles of Westminster Parliamentary politics. The fallacy assumes that the desire of many Canadians for Parliament to 'work together' elevates the opposition's role - without constitutional (written or conventional), legal or institutional justification or legitimacy - and, strangely, somehow supersedes electoral results! It is a troubling theory - especially for a party with 'democratic' in its name - to willingly disregard the sole mechanism for choosing the composition of our Parliament (and thus the government) for some strange cooperative principle which is entirely absent and, it must be reiterated, antithetical to the system of governance itself. Canadian government is, by nature of its history and institutions, adversarial. [It is also worth noting that the claim that this must be the only legitimate course of action because '60% of the country voted against Harper' strains logic given that a greater number (70%) voted against the Official Opposition).]

The basic working principles of Canadian democracy are quite simple. A government must command the confidence of the House. This means that a simple majority of individual MPs must side with the government on any given matter of confidence. The basic working principle of Canadian government does not entertain the notion that all parties must contribute to the legislative process. Parties have little in the way of official standing beyond what is granted to individual members - places on committee, opportunities to ask questions - by their party's standing in the House. The majority principle is quite clear. To insist on some inflated degree of consensus - a mythical supermajority - is foreign and should be dismissed. Canadians may desire 'greater cooperation', but this cannot and should not mean that elected representatives ignore the rules of the game.

Turning briefly to recent events, much has been made of the 'anti-democratic' nature of the budget omnibus bill. This is, to a substantial degree, little more than hyperbole. Two points need to be addressed. First, the notion that the bill represented a 'Trojan Horse' is not only an inapt allusion, but a partisan delusion. Something can only be considered a Trojan Horse when the contents are unknown and have an effect running contrary to what was expected. Had the budget bill been filled with Conservative soldiers ready to slaughter an unsuspected opposition, then and only then could it be considered a Trojan horse. Additionally, had the Conservatives been trying to hide these elements, it runs contrary to common sense that they would, whilst concealing them, tout them openly as having benefits for 'jobs and prosperity'. In this sense, the omnibus was more or a Pythonian Wooden Rabbit than a Trojan Horse.

Indeed, the real motivation for the omnibus, in my estimation, is far more deleterious and portends much worse than a simple attempt to sneak changes through. The omnibus was chosen, not because it was a convenient mechanism for obfuscation but rather because it provided a convenient means to avoid altogether the proper oversight mechanisms of Parliament. In essence, the omnibus was not an attempt to deceive but rather a heavy handed ramrod aimed at bypassing scrutiny. By attaching a host of clauses to the budget bill the government was, simply put, able to considerably reduce the amount of time any item would have spent before Parliament. It is indicative of a government averse to oversight and accountability.

The claim that the sheer volume (400 or so pages) of the omnibus makes it likely that clauses could slip through unnoticed also fails to hold water. The collective breadth of the legislative agenda would still amount to some 400 pages (perhaps more) if the omnibus had been broken down into smaller pieces. The same volume would have to have been perused by MPs regardless. 400 pages in twenty 20 page chunks is still 400 pages. Splitting the bill into smaller sections may have increased the amount of specific attention each item received and delayed passage by a few months, but the net effect would be roughly the same.

Second, the notion that an omnibus is somehow an affront to democracy is an unhelpful feat of hyperbole.
While distasteful and, as indicated above, obviously designed to avoid sustained scrutiny, the bill was, in essence, procedurally sound. Again, it is helpful to remember that Parliament sets its own rules and, in this case, these are rules that have long been in effect and could have been changed by previous Parliaments. Indeed, it is a difficult stretch to claim that an act lacks democratic legitimacy when it has the confidence of the House. It is the job of the government to propose, while it is the job of the opposition to oppose. The Commons demonstrated that it was prepared to hold the government to account - even if it was met with legislative failure. It is again important to remember that Parliament is made up of individuals and it is the collective will of these individuals that shape political outcomes. Ratcheting up the hyperbole merely serves to undermine the legitimacy of the very institutions many have set out to save. Parliament cannot be salvaged by disregarding what is intrinsic to it. Between elections, governments propose and oppositions oppose. Success for the opposition is not and should not be measured by its ability to ground the government's agenda to a halt - indeed such obstructionism would be undemocratic - but rather by its ability to shine a light on process. By this measure - the proper measure of our parliamentary and democratic heritage - the opposition, Official and not, admirably fulfilled its proper, democratic role.

Tuesday, 24 April 2012

Quebec, Canada and the Scottish Question


The English language Canadian press is in a tizzy over comments former Liberal leader Michael Ignatieff made to BBC Scotland in a recent interview. Many are outraged by the statements - which Ignatieff via press release has decried as being taken out of context - as essentially giving comfort to the sovereigntist cause. No doubt the Parti Québécois will be delighted with the statements as proof of the inevitability of an independent Quebec. This would hardly be surprising as the PQ - and indeed it's federal cousin the BQ - will contort any statement to conform to their plans.

Monday, 16 April 2012

Harper, Quebec and the Constitution at Thirty

A Commonwealth is said to be instituted when a multitude of men do agree, and covenant, every one with every one, that to whatsoever man, or assembly of men, shall be given by the major part the right to present the person of them all, that is to say, to be their representative; every one, as well he that voted for it as he that voted against it, shall authorize all the actions and judgements of that man, or assembly of men, in the same manner as if they were his own, to the end to live peaceably amongst themselves, and be protected against other men Hobbes, Leviathan                                                                                                                 
While the initial burst of pettiness surrounding the general reluctance of the Conservative government to celebrate the thirtieth anniversary of the patriation of the Constitution, and by extension the Charter, is not surprising, statements made by the prime minister are particularly troubling. Harper seemed to evoke the ghost of former Quebec premier René Lévesque in his cited reasons for downplaying the event, particularly the discord surrounding Quebec's 'missing signature' on the document. While they seem slight, Harper is doing two very problematic things at once. First, he is unwisely reopening old separatist wounds at a time when support for sovereignty is on the wane. Second, Harper undermines the legitimacy of the Constitution itself and, by extension, the groundwork of this country's governance.

A few points need to be addressed here. First, the notion that Quebec's signature on the document somehow undermines the process is without grounds. It was entirely within the purview of the imperial parliament (Westminster) to amend the existing British North America Act. Indeed, while undesirable, unilateral action on the part of the central government would have been acceptable. In the Supreme Court's Patriation Reference, the court noted three important points. First, the court noted that a constitutional convention had taken affect whereby the central government should not act unilaterally but was expected to consult with the provinces. Second, and directly tempering the first point, the court found that unanimous consent was not required. Third, while the convention had developed, Ottawa was not legally bound and, as such, was free to seek terms for patriation. Ottawa fulfilled its duty to consult with the provinces, reaching a deal with all but Quebec. The process, constitutionally and legally speaking, was sound. Moreover, it could reasonably be argued that under the terms agreed to under the existing constitution, Quebec was bound the process.

That Quebec's signature is missing from the document is the product of personality - in the form of René Lévesque - and parochial provincial politics. It is likely nothing short of some form of sovereignty association  - a form of union violating the initial terms of the compact - would have sufficed. In the face of unreasonable demands to play to the ideological and political machination of the home audiences, Lévesque was unwavering. Quebec's demands would have fundamentally altered the terms of Confederation and, as such, entirely negated the point of such a union. More importantly, however, is the fact that, in subsequent actions, Quebec has tacitly endorsed the provisions of the Constitution Act, 1982 by making use of its terms and, more explicitly, by amending the document itself. Quebec cannot claim the document lacks its signature when that province has affixed its seal on more than one occasion. This, it would seem, gives consent to be governed by the document. Indeed, from a strictly Hobbesian vantage point, the initial agreement to form a polity could not be invalidated by Quebec alone, nor was renewed consent required.

After thirty years, the absence of Quebec's formal signature on the document should not be seen as a  barrier. While unfortunate, however, it does undermine the legitimacy of the document. Moreover, given that the public democratically rejected mega-constitutional reform in favour of the status quo, the decision of the Canadian people as a whole should take precedence. Beyond this, if the federal government was serious about bringing Quebec unquestionably into the constitutional firmament, it has the means to do so. As Cameron and Krikorian argue, the use of a bilateral amendment between Ottawa and Quebec City could provide one potential avenue. 

Harper's unfortunate comments combine an unending animus against Liberal Canada with a will to do whatever it takes, regardless of the dangers, to bury his enemies. His disdain for the Charter and the values it represents - equality and language rights in particular - are no secret. The widespread popularity of the Charter coupled with the fact of its authors makes it a difficult pill for Harper to swallow, particularly as the document - and the courts as its arbiters - are likely to slow  his agenda in the coming years. As a result, he has chosen to try and ignore it.

The decision to ignore the broader patriation, however, it problematic and entirely hypocritical, especially as the government is prepared to spend millions celebrating the War of 1812 and Queen Elizabeth's diamond jubilee. While the war is important - although vastly overplayed in significance as it was fought by British citizens, citizens who would not think of themselves as Canadians for over another century - it pales in comparison to the historic significance of 1982. This anniversary marks Canada's final steps toward becoming a fully sovereign and independent nation after decades of constitutional wrangling. It is this event - and particularly the entrenched Charter of Rights and Freedoms - which inform Canada's notion of itself, far more than a distant colonial war fought for king and empire.

That Harper would focus on a marginal event instead of the formative constitutional event binding the country speaks volumes to his pathology. (Freedom of thought and conscience guarantees the right to be petty.) Sadly and event that could be used to further unite Canadians is being squandered because of the ideological dictates of the government which see partisan divisions as more important than respect for governing institutions. Indeed, if the constitution doesn't warrant respect and administration - whatever its flaws may be - what does? While patriation at the time was met with indifference, it's centrality to the country is beyond question, even if there are those who would deny this fact. 1982 solidified Canada's independence and brought with it a greater, more secure set of freedoms for Canada. Try as hard as he might, Harper can't entirely ignore this reality. 

The Charter Legacy or: Why the Right Hates Freedom

Judging by the hyperbolic idiocy of the right wing media (and right wing trolls posting in the blogosphere), the Charter of Rights and Freedoms - entrenched in the patriated Constitution Act, 1982 - was the biggest mistake in Canadian history. Full stop. The Toronto Sun claims audaciously that the "Impact of the Charter polarizes us still". Certainly aspects of the Charter are polarizing, but his likely has less to do with the document itself than the effects of judicial review and unpopular Supreme Court decisions. On the issue of the Charter itself, however, there is no ambiguity.

Indeed, a poll conducted to ascertain public reaction on the twentieth anniversary of the Charter found overwhelming support. Only 4.5% of respondents considered Trudeau's bill of rights in the negative. Far from being 'polarizing', that Charter became intimately linked with Canadian identity. The eminent scholar of Canadian politics Alan Cairns has gone so far to label this phenomenon "Charter Canadians", identifying as the bearers of rights. For Cairns, the Charter represents a "citizens' constitution", fundamentally enhancing the notion of Canadian citizenship.

The British North America Act was a constitution of governments. It set out the relationship between institutions and levels of government, regulating the relationship between the central government and the provinces. As such, it mediated solely the rights via federalism, making little to no mention of the rights of individual citizens apart from a few collective rights (religious education, for instance). The introduction of the Charter fundamentally altered this calculus. From 1982, the relationship between government and citizens was codified and enshrined constitutionally. It recognized that, not only are Canadians entitled to certain rights, but that the state had reciprocal duties to individual citizens. Moreover, it expanded rights beyond basic political and legal rights to include social rights.

The Conservative government has done much to downplay the importance and centrality of the Charter of Rights and Freedoms to the Canadian polity. Harper has gone to great lengths to extol Diefenbaker's 1960 Canadian Bill of Rights. Indeed, this document is an important milestone - the first bill of rights in the Westminster world - yet it was limited by its lack of scope and purview. The bill was statutory only. It lacked constitutional status to set it above all other laws. Secondly, being a statute of the federal Parliament, it applied only to those institutions and areas over which the central government had control. Moreover, the Canadian Bill of Rights had little effect on the relationship between the government and citizens and essentially codified existing practice. It enumerated existing rights and failed to expand them. Secondly, the bill was part of a myopic view of Diefenbaker's 'One Canada' vision of the country which ignored fundamental differences between regions and individuals and, in essence, ignored the French fact in favour of a more white, British version of Canada. While recognition is due, Dief's bill had limited impact on the nature of Canadian citizenship or the behaviour of the judiciary.

While Harper is correct in one sense to laud this accomplishment, it is clear that he is doing so for less than forthright reasons. Indeed, given Harper's pathological aversion to any of the accomplishments of the Liberal Party - and especially Trudeau - his lack of interest is understandable. This is, however, a superficial explanation. The Conservative opposition of the Charter is much more deeply engrained and ideological. First, it runs counter to the narrative of Canadian identity propagated by the current government. Rather than emphasizes points of commonality around social rights and entitlements, Harper has actively sought to fix Canadian identity on a more militant footing, hence the focus on the War of 1812 - an imperial war fought not by Canadians but by staunchly British subjects and won, largely, by Native allies of the Crown - or the modern wars of Europe. Indeed, it ignores other nineteenth century developments in a collective Canadian identity - the rebellion of 1837 and the fight for responsible government - or the growth of social citizenship in the mid-twentieth century centred around social entitlements. 

Second, the staunchly neoliberal Harper views the expanded notion of rights beyond a few political (voting, standing for office) and legal (due process) rights to be anathema. They are an overreach of the state. Indeed, given the his legislative agenda, the expanse of political and legal rights included in the Charter itself are likely more generous than Harper would allow (since due-process hasn't been something particularly high on his agenda).

Third, one of the larger problems with the Charter goes beyond the provision of the rights. What the document has done is more profound. It has fundamentally altered the power balance in Canadian society by bringing those groups previously on the margins of society into the process, particularly by way of the courts. This has been one of the most longstanding complaints of the Charter: the so-called judicialization of politics. Right-wing critics like Morton and Knopff - authors of the awful yet influential The Charter of Rights and the Court Party - label those groups attempting to achieve public policy goals through the courts as 'special interests' intent on subverting the legitimate democratic process by utilizing the courts. This duo has host of acolytes, such as Ian Brodie - Friends of the Court - essentially replicating this stale, unthinking argument. Even more nuanced scholars, such as Janet Ajzenstat, decry the usurping of power away from Parliament by the courts and away from democratic institutions.

These scholars all miss the point entirely. What they ignore is the glaring fact that these groups were denied entry into the very 'legitimate democratic process' through which Charter critics claim they should be engaging. This includes a host of marginalized groups: women, Gays and Lesbians, Aboriginals and racialized groups. The courts offered a way, not to undemocratically direct public policy, but to claim rights as citizens that had been denied to them prior to 1982. Critics also ignore another glaring fact: the direct abdication by Parliament by its own accord. One need to look only at the abortion debate or marriage equality as examples. In both cases the courts were handed a loaded political question that the legislature was unprepared to tackle for want of courage. Indeed, Liberal and Conservative prime ministers - Martin and Harper - have both deferred to the courts in order to avoid opening contentious issues which could have hurt them politically. Finally, critics ignore the fact that - in both the pre- and post-Charter eras - dominant groups have regularly used the courts as a means to solidify and consolidate their power. The use of courts as a tool to affect public policy is nothing new. What is new is that the Charter provided a way for marginalized groups to use those same processes to claim the political, legal and social rights to which they are entitled as Canadians.

Finally, much of the criticism - particularly from lay persons commenting viciously about the Charter - has seized on official bilingualism. These critiques are as unthinking as they are racist. First, they speak to engrained intolerance of francophone Canadians. The language used has been vitriolic and hurtful. Second, they are entirely ignorant of the history of the country and the role of Quebec. Indeed, they ignore that it was the people of Quebec who first called themselves 'les Canadiens' and not the English. These complains attempt to deny the reality of francophone Canada, attempting to impose onto Canadian identity something that is linguistically and culturally English in origin and fact. It also ignores the attempt - albeit a failure as far as Quebec is concerned - by Trudeau to reinforce a pan-Canadian identity and to make Quebecers welcome in their own country. The Charter reflects the reality of Canada, one that does not simply replicate the notion of the country outside of Quebec. It acknowledges the central role of Quebec in Confederation. Anglophone Canadian critiques ignore the reciprocal nature of language guarantees in the Charter.

Those voices that are critical of the Charter carelessly take for granted that the rights that exist today were protected by the 1960 bill of rights or generally before 1982. They ignore the expanded legal protections, for instance, the enshrining of due process. They ignore the entrenchment of mobility rights, guaranteeing the right of any Canadian the right to work anywhere in the country, to move to seek new opportunities and the right to services - especially health care - regardless of where in Canada they happen to reside. They ignore the protection of fundamental rights: religion, conscience, assembly, association and freedom of the press, rights that were often precarious prior to 1982. 

The Charter, like all political documents, is imperfect. It represents the the good intentions and limitations of its drafters. It is incomplete - it consciously omitted rights based on sexual orientation and identity - and potentially limited - the notwithstanding clause, while rarely invoked, nevertheless constitutes a limit on rights as does the open-ended disclaimer of section 1. Yet it remains the most expansive bill or rights in the Westminster world and one of the most emulated globally. While it failed to convince French Canadians, it has nevertheless, as Kenneth McRoberts notes: "become for many English Canadians a central feature of their sense of a Canadian political identity" (1997: 185). Far from being 'polarizing', the Charter has been an unambiguously positive development. Beyond simply affirming rights and privileges, it has become the bedrock of Canadian citizenship and identity. Canadians, unlike their federal government, recognize this fact.

Further Reading:

Alan C. Cairns. Charter Versus Federalism: The Dilemmas of Constitutional Reform.
Kenneth McRoberts. Misconceiving Canada: The Struggle for National Unity.
Peter H. Russell. Constitutional Odyssey: Can Canadians Become a Sovereign People?

Friday, 13 April 2012

The Charter and the Idiocy of "Conscience Rights"

While I normally ignore Alberta politics, one issue in particular - the notion of 'conscience rights' - has emerged as an election theme with broader implication. This, combined with the upcoming thirtieth anniversary of the constitutional patriation, and thus the entrenchment of a bill of rights in the form of the Charter of Rights and Freedoms, makes for an interesting debate over the limits of various rights, particularly when they compete. Not surprisingly, the federal government - whose leader is averse to the Charter on a number of grounds - has decided not to mark this momentous occasion with anything more than a press release. Never mind that this document is somewhat of an anomaly in the Westminster parliamentary world and, indeed, one of the fundamental identifying features of the country. Indeed, Alan Cairns refers to "Charter Canadians", expressing the magnitude of the attachment between this document and Canadian identity. 

The reluctance of the federal government to acknowledge this is a product of a pathological reticence on two grounds. First, a refusal accept any remnants - even one as fixed and permanent as the Charter - of Liberal Canada. The fact that Harper chose to extol the virtues of Diefenbaker's 1960 bill or rights rather than Trudeau's charter speak volumes to this. The Charter is a product of the enemy and thus something to be ignored if it cannot be eliminated. Second, there is a qualitative dimension to this. For Harper and his ilk, the Charter is something to be hated because of its very nature. Unlike Dief's document, which was merely statutory and federal, the Charter is entrenched and largely unalterable. As such, it is difficult to get around. More importantly, the scope of the two is much different. While the bill of rights referred mostly to political and legal rights, the Charter is much more sweeping, including a host of equality provisions. It actively tries to ameliorate disparities based on a host of enumerated grounds - particularly sex - and thus fundamentally alters power balances. This is the reason why right-wing Charter critics - Morton and Knopff, Ian Brodie and the like - have attacked so vociferously the notion of judicial review. What they lament is not the process but the outcomes. Their arguments are largely hypocritical and off-base.

As the thirtieth anniversary of the Charter approaches, the right wing media has already begun to unleash a torrent of anti-Charter rhetoric. For instance, Brian Lilley writes an unthinking tirade accusing progressives of 'bending the Charter'. This is essentially what Lilley and those on the right are doing themselves. Contorting the document to suit their own political ends. Indeed, it is a very selection reading. Lilley triumphantly asserts that, since freedom of religion is listed first in the Charter, it must take precedence. He writes: "In fact, it is the first fundamental freedom that the government is supposed to protect".  It is certainly true that these are listed first, but this does not mean that subsequent rights become secondary when questions of 'conscience and religion' come into play. Certainly democratic rights, listed after fundamental freedoms, are no less central. This is a strange argument to make, that ordering in the document makes that much of a difference. Indeed, legal rights are listed after mobility rights, so by Lilley logic these rights take a backseat.

One of the problems the courts deal with often in Charter cases is weighing competing rights. This is a delicate operation and a thin line, particularly as cowardly legislatures refuse to broach contentious issues, leaving the courts in the precarious position of weighing public policy options. They are acutely aware of this problematic aspect of the law. What critics on the right, in touted the supremacy of Section 2(a), ignore is the reciprocal claims of others to these very same rights. In claiming section 2 for themselves, the right is attempting to deny this to others. Moreover, they mistakenly assume that religious thought is the paramount right (ignore that religion itself follows conscience in general). They cannot explain how their rights trump the claims of others and, indeed, why others should be relegated to silence. 

More troubling, however, is there complete and utter ignorance of other Charter provisions. Most notable here is the omission of section 1, which states that all rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Instead, proponents cherry pick their favourite sections and read into them a more absolutist (and American) conceptualization of rights as immutable and absolutely inviolable. They ignore the sections of the Charter they disdain - particularly the equality provisions in section 15 - and latch on to those they approve of. More troublesomely, they attempt to deny rights to others by erecting an artificial hierarchy of rights which does not exist. In Canada rights are balanced, not ranked.

Beyond this, critics also misunderstand the purpose of the Charter. The document sets out the relationship between the government and its citizens, proscribing the limits of what is justifiable intrusion for the state. Importantly, however, the Charter was intended also to be a bulwark protecting minorities against the excesses of majority rule. The notion was that rights could be maintained regardless of majority opinion on the matter. As such, the Charter has been largely used to expand rights rather than limit them. This is an aspect that critics do not understand.

On the one hand, critics like Lilley extol their own rights to be treated justly by the state. On the other, however, they deny this to others. In the case of so-called 'conscience rights', they ignore the state's reciprocal responsibities under section 15 to treat all citizens equitably. 
15(1) Every individual is equal before and under the law and has the rights to equal protection and equal benefit without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical ability
In the provision of public goods, including marriage licenses, the state has a duty to treat all citizens equally. As such, public employees those same duties. To allow some individuals to neglect their duty based upon some so-called religious belief goes beyond the pale of reasonable accommodation.

Demands for accommodation based on 'conscience rights' is little more than a wrong-headed to sanction and justify homophobia. Indeed, homophobia remains the last publicly defensible forms of bigotry that is tolerated by society. It stretches credulity to cite religion as an excuse to justify inequitable treatment by the state. A simple thought experiment illustrates this. Take for instance an individual who refuses to execute her job fully by issuing a marriage license to a same-sex couple on that grounds that it runs contra to her beliefs as a Catholic. Now, replace that gay couple with any number of pairings: an interracial couple, individuals from another faith or two handicapped Canadians. Refusing to discharge one's duties on these grounds would be met with ridicule and would not be accommodated. When it comes to the rights of gay and lesbians, playing the religion card is still accepted by many as an excuse to recognize the rights of others. 

Take another scenario. Part of the logic of 'conscience rights' is that the public sphere should conform itself to suit the "section 2" rights of religious individuals (notice, they're predominantly Christians). This is part of the logic also of the argument against marriage equality: that the existence of someone contrary to one's beliefs in someway impedes the exercise of those rights. So, in the case of marriage equality, a lesbian couple's nuptials is an active detriment inhibiting the religious rights of a Catholic family. It's an asinine argument, yet it has a great deal of weight with many. Now take the argument to its extreme. Nothing runs contrary to the beliefs of Catholics like Islam. Following the anti-gay rationale, the state should ban the practice of Islam because it runs contrary to the teachings of the Vatican. Indeed, the Protestant church (those heretics!) would need to be silenced as well. Majority rule means the dominant religion in Canada - Catholicism - takes precedence. Again, the argument is asinine in every context except in relation to homosexuality. Something about homophobic bigotry has a strange effect on rational thought.

Claims to 'conscience rights' are little more than a demand that an individual's homophobia be recognized and respected by others and the state. It colonizes the public sphere in the name of religion and attempts to force sexuality back into the closet, into the private realm. Somehow there is a right to religious expression in public, yet when it comes to the expression of sexuality in public - itself an exercise of freedom of conscience that, by Lilley logic, supersedes religious freedom - section 2 need not apply. The whole argument demonstrates a profound ignorance about how the Charter operates or it's larger goals. Right wing (largely religious) arguments attempt to maximize their own claims to rights while denying them to others. They see their own rights as inalienable and immutable, yet the same claims by others as subject review. Moreover, they ignore the overriding imperative of the Charter to protect minority rights - of language, religion, gender and (thanks to the courts) sexuality - instead assuming that majority rule dictates the provision of rights. The religious right certainly has a claim to freedom of conscience and religion, of thought, belief, opinion and expression. What they don't have is a right to force their view of the world on the state or on others. Section 2, after all, comes after Section 1. 

Thursday, 29 March 2012

Centsless: Canada's 2012 Budget

Needless to say there is much in the Jim Flaherty's 2012 budget that should outrage Canadians. A cursory glance raises some problematic prospects for groups already marginalized by the Conservative regime. Obvious targets include seniors waiting longer to retire and the young Canadians who will pay for those benefits without the security of knowing they too will have those same benefits. There are other perennial losers, like the working poor and women. Some measures may have significant long-term ramifications. The relaxing of the environmental regulatory system could have implications for First Nations communities. What will become of the Crown's duty to consult when project approvals are expedited? Given the tone of the budget provisions here, it is likely an already tenuous process could further erode. No doubt though this will be frame as a positive step by the government and for those eager to acquire rights to Aboriginal lands. Yet it the realities of Neoliberal market dictates for these communities could bring far greater dangers than benefits.

Much of the budget could be regarded as death by a thousand cuts. Indeed the media narrative - and most mainstream press agencies are guilty of this - downplayed the cuts made by the government. Given what the Conservatives could have done, we are told, this is a fairly moderate budget. That will be cold comfort to those non-enumerated groups who as a result of budget cuts outside the central bureaucracy will find their jobs under the axe in the weeks and months ahead. The government may not have radically amputated any governmental limbs, but the wounds still have the potential to bleed out. Again, the effects of this budget will not be entirely immediate. It will be a slow, creeping process. The lobster's in the pot and the water is slowly boiling.

Apart from the soothing words from Canada's pundit class that this budget was mild, the central focus seems to be on the elimination of the penny. While this is certainly wise policy - pennies are useless and cost a small fortune to keep in circulation - the change highlights the ideological underpinnings of this government and it's total lack of deference to commonsense or honesty. Penny jars across the country are no doubt full to the brim, the result of a senseless and politically calculating policy (successfully) designed to win the 2006 election. For the average consumer - say, the Tim Hortons Canadian - the policy meant little in the way of benefit apart from (literally) an few extra pennies every cup of coffee. The impact on the treasure was profound, contributing to a structural deficit prior to the onset of the global recession in 2008. The abolition of the  penny has served its purpose, ceasing the initial media spotlight and deflecting attention from some of the more nuanced aspects of the budget.

The budget also represents a not so subtle attack on democracy in this country. First, some measures against charitable organizations and non-profits are likely meant to silence any organization that dissents from the government line. Second, and more fundamentally, the budget also takes aim at Canada's democratic guardians, notably Elections Canada. That organization ill see its budget slashed by about 7%, seriously affecting its ability to fulfill its mandate. As I noted in my previous post, this potentially undermines the independence of Elections Canada, reducing the amount of investigative work it can do. The timing is also suspicious, coming at a time when the agency is actively undertaking investigations which could implicate the government in widespread electoral fraud. It is particularly troubling given that Elections Canada - and, indeed, other Officers of Parliament like the Auditor General - represent a tiny fraction of government expenditures and deliver substantial value for money. Moreover, their role as watchdog is invaluable. These cuts simply exacerbate the growing crisis of Canadian democracy, undercutting Parliaments ability to hold the executive to account. Indeed, these seemingly insignificant cuts nevertheless cut to the heart of our democratic institutions. A Parliament without access to the resources it needs, either internal or external, is one a decreased ability to provide a check on power that has only eroded further since 2006.

Contrary to the pundit class in the country - a class increasingly failing in its own sacred trust to hold governments to account and speak truth to power - this is not a budget that is in anyway moderate. Indeed, while the talking heads praise the government's efforts to balance the budget, it remains to be seen how a budget balanced on the backs of the poor and marginalized in this country can been considered balanced in a wider sense. What is most disappointing is that there is the wealth available in this country to balance the fiscal books and do so while maintaining social programs. Contrary to what it claims and the excuses it makes, the Conservative government has made a conscious decision to implement a budget of massive wealth redistribution. In this case, the wealth flows to those who already posses it. This is a budget designed to dull and distract, to work incrementally. Canada's and its democracy seem set to bleed out slowly over the coming  years.


*Yes, I am aware the pennies in the jar are of the American persuasion.

Officers of Parliament: A Primer

Chief Electoral Officer Marc Mayrand
To most Canadians the term 'Officer of Parliament' (alternatively: Agent of Parliament, Parliamentary Watchdog) likely means very little. Yet given recent high profile scandals, chiefly the recent 'robocall' scandal and, prior to that, the Sponsorship Scandal, many will be familiar with the the personalities, if not the office or general institutional arrangements behind them. Indeed, most Canadians are likely able to name former Auditor General Sheila Fraser, arguably one of the more famous individuals to hold that office. Judging from the public reaction to the robocall scandal, however, it seems that Officers of Parliament are grossly misunderstood and, sadly, being disparaged without caused.

First, a brief historical and institutional overview is required. Broadly speaking, Officers of Parliament, as their name implies, are bodies responsible to Parliament as a whole. They are entirely independent of the executive branch. While the Auditor General has often been the most visible - the office and its work have the broadest possible purview since it deals with government spending - the role of the Chief Electoral Officer has come to the fore. These are two of the oldest officers. The Office of the Auditor General traces its roots to pre-Confederation, but its modern incarnation began to take shape after the 1920s and since then its mandate has changed substantially. The Chief Electoral Officer was the second officer to be created as head of Elections Canada in 1920. Trudeau added a third - the languages commissioner - in 1970 to oversee the implementation of official bilingualism in the federal government. Additional officers were added in the 1980s, but they were substantially modified with the implementation of the Federal Accountability Act in 2006 which instituted the current incarnations of the Privacy, Information, Conflict of Interest/Ethics, Lobbying and Public Sector Integrity commissioners. One may also include the Parliamentary Budget Officer, although its reporting function differs substantially. The function of each obviously varies with their individual mandates - as laid out in statute - as do their effectiveness.

Undue criticism has been hurled at the Chief Electoral Officer for the perception of ineffectiveness in dealing with the robocall scandal. Unfortunately this criticism has degenerated into baseless accusations of political or partisan collusion, that somehow Officers of Parliament are beholden to the party that appointed them. This is patently untrue and inherently problematic as it suggests that many of the institutions most central to Canadian democratic governance, from its elections to its bureaucracy and judiciary are somehow tainted. Populist angst over the scandal has undermined public patience in existing institutions and, as a result, the perceived lack of effectiveness or action taken by each has resulted in these baseless slanders. There are many institutional and practical reasons, however, why Officers of Parliament are not even remotely partisan agents beholden to those who appoint them.

First, they are appointed by Parliament as a whole with cross-party input. Moreover, unlike Senate appointments, qualifications - often laid down in statute - must be met. (In the case of the recent Auditor General appointment it does seem some of these qualifications - the ability to speak French for instance - can easily be overlooked). As such, partisan appointments are eschewed in favour of qualified individuals who are vetted and scrutinized. Indeed, the record of action of past agents immediately counters the claim that they are partisan or politically motivated. Sheila Fraser - appointed under a Liberal majority government - was a constant thorn in the government's side, as is the Parliamentary Budget Officer (indeed, he openly contradicts the executive). The smaller agents have also not shied away from taking on the government as has recently been demonstrated. The question that emerges is not one of impartiality, but effectiveness. This is another matter entirely.

Secondly, officers have by statute a significant degree of independence along a number of important axes. First, they have security of tenure, the length of which varies. For instance, the tenure of an Auditor General is ten years while a Chief Electoral Officer serves until retirement. The corresponding side of tenure - removal - is also strenuous. It requires a joint resolution of Parliament - House and Senate - to remove officers. Any attempt to remove an officer for partisan or political purposes is likely to be met with resistance. Indeed, Ontario Premier McGuinty discovered that even considering not renewing a popular yet outspoken Ombudsman's tenure was ill perceived by the media, opposition and, importantly, the public. In addition to tenure and removal, each officer - and the agencies they run, whether it is Elections Canada or the Auditor General - has significant funds at their disposal to hire staff and conduct their operations fully. Indeed, Elections Canada has substantial powers to spend money under the Canada Elections Act. Moreover, officers have significant powers of investigation and reporting. What is lacking, however, is a mechanism of enforcement. Officers rely on public pressure - they use the media to their advantage - to influence the agenda and force Parliament's hand. In the end, it is Parliament that must act to take recommendations into account. Unfortunately in many cases Parliament simply votes to receive reports rather than put them into effect.

As Dawson (1922) notes, the creation of conditions required to propagate independence are twofold: "The first, which is confined to the methods of obtaining the official; the second, which includes the means that determine his independence after his accession to office" (12-13). Officers of Parliament meet both of these important sets of criteria. Officers are highly professional individuals experience and skills required to supplement Parliament's oversight capacity. They are not partisan lackeys or bagmen. Additionally they are secure in their tenure which facilitates independence and have the resources required to undertake their tasks.

There is a great deal of confusion in the public - and, perhaps among politicians - exactly what officers do and what their limits are. Each confront the limits of their respective empowering statutes, although some - like the Auditor General - have been adept at expanding their mandate and consolidating their fiefdoms. The confusion has been particularly palpable in relation to the Chief Electoral Officer. Indeed, her the limits of the statute are evident. Unfortunately, public misunderstanding has imbued powers upon Elections Canada which are not within its purview, chief among them the ability to invalidate elections. It cannot be reiterated enough that Elections Canada lacks both the statutory power and authority to invalidate elections. As has been repeated endlessly, that power rests with the courts alone. Moreover, it is not the place of Elections Canada to suggest or make that case for invalidating an election. Again, the case must be made by citizens before a judge. The powers of Elections Canada are prescribed and finite. First, it oversees the conduct and facilitates elections. Secondly, it has investigative and legal powers - similar to attorney generals - to enforce the elections act. This is actually a fairly unique and broad provision. These functions, like any public legal function, require evidence to prove beyond a reasonable doubt that a crime has been committed. The same stringent legal standards apply as with any other aspect of Canada's criminal code.

As previous posts have indicated, I have made the case for allowing Elections Canada the time to fulfill its mandate in accordance with the rule of law and principles of fundamental justice. Complex investigations of electoral fraud, like any other crime, require the careful gathering and parsing of evidence in order to build a case. Populist sentiment has already reached its verdict, one that sees a conspiracy reaching to the highest echelons of power in the federal executive. They require no evidence beyond gut feelings and unsubstantiated evidence. Thankfully Elections Canada words within a more clearly defined set of standards and legal principles. Certainly the process may seem slow, but no more than any criminal investigation of this size - hundreds of complaints, across 308 ridings and a massive country - or, for that matter, the time frame of a Royal Commission. I repeat again my call to let Elections Canada complete its investigation.

The role of Officers of Parliament is an important one, albeit one that is not fully defined or, in particular, understood by the public at large. Repairing our damaged democratic institutions will not come from further tearing down the entire structure of governance. The response has been to denigrate the courts and officers, labelling them as biased and politically motivated. This is both unhelpful and entirely incorrect. Officers of Parliament are resolutely independent. Moreover, they jealously guard this independence as it is the hallmark of their legitimacy. Without it their work is undermined and of little value. As Dawson noted almost a century ago: The real democracy demands a subtle combination of election and appointment, of non-expert minds and expert minds, of control and trust, of responsibility and independence" (27). Officers represent the appointed expert side of the equation. To be effective they also require the public's trust and confidence.

*Update* The 2012 Federal budget has slashed the budget for Elections Canada, a severe attack on the independence of the institution

Suggested Reading:

R. MacGregor Dawson (1922). The Principle of Official Independence: With Particular Reference to the Political History of Canada

Wednesday, 14 March 2012

This is What "Democracy" Looks Like?


While disparate in origin, two separate movements are coalescing into similar shapes in this country. In Toronto, dissatisfaction with a highly unpopular mayor, particularly in progressive, circles has results in numerous attempts - many procedural, technical or legal, many outside of council chambers - may soon come to a head as a legal challenge to remove Rob Ford from office will be considered by a judge. At the federal level, populist outrage at at the so-called 'roboscandal' continues to build - again, largely in progressive circles - demanding, most vocally, an immediate Royal Commission or the overturning of the results of the 41st general election. Both are masked in a populist and deeply democratic rhetoric. The reality, however, is that these movements teeter dangerously close to a profoundly anti-democratic precipice. This, of course, sounds entirely counter-intuitive. It is anything but.

Tuesday, 13 March 2012

You Say You Want a Royal Commission?

The fallout from the 'robo-dialing' scandal has brought with it certain demands, some of which are beyond the pale both in terms of feasibility and desirability. First, many protesters have demanded that the entire forty-first federal election be overturned. This is highly unlikely for a few reasons. To begin with, it would require judges overturning 307 (Toronto-Danforth by that time already having had a by-election) individual riding results and necessitating the calling of simultaneous by-elections. The power to null and void an entire election outright is not a power the judiciary possesses and therefore this improbable confluence of events is the only way. The other improbable scenario is the Governor General unilaterally dissolving Parliament. For a number of reasons, this will not happen. Yes, it is technically within his powers, but there are a number of constitutional and practical reasons for doing so. The execution of crown powers occurs usually on advice of the Queen's advisers, in this case the Prime Minister and Cabinet. Additionally, asking the GG to decide such a matter unduly politicizes the office, something with serious ramifications. In short, without the voluntary calling of an election  by the Prime Minister - who still holds the confidence of the House, the cardinal rule of political formation in Canada - Parliament is not going to be dissolved as a whole.

The second of these vocal demands has been the calling of a commission of inquiry, either a Royal Commission or a public inquiry without the luxury of fancy titles. This, it seems, is a somewhat more reasonable demand. From a more populist perspective this makes sense. The public demand to know exactly what transpired and the depth - or heights - to which it extends. Certainly the argument that the people have a right to know is entirely sound. The question remains, however: is this step the appropriate one, particularly at this stage in the game?

The distinction between a Royal Commission and a public (or commission) of inquiry. Is a slight one in terms of powers and ability. Both may call witnesses and compel evidence, possessing a wide array of functions and  jurisdiction. A Royal Commission maintains a heightened sense of importance or urgency. Indeed, it carries with it Her Majesty's royal seal. Yet on a basic level, there is a clear reason not to call a royal commission, even if it is for the sake of semantics. Royal Commissions are tasked with investigating weighty matters which are national in scope - although they may also be called by provinces and thus address urgent provincial matters - and have important bearing on the country as a whole. They tend, with few exceptions, to deal with questions of governance which require greater attention and expert investigation. As such, the most famous commissions have dealt with, among other things the relationship between provinces and territories, Canada's place within the North American continent, the national character and the question of Quebec and the future of Aboriginal Canada. Royal Commissions report to the political executive which is tasked with forging a strategy in response. In many cases, however, little action may be taken, as was the case with the report pertaining to Aboriginal Peoples in 1996. 

Tuesday, 6 March 2012

Moving Beyond 'Apartheid'

I'll be honest. I hate Israeli Apartheid Week (IAW). Not because I disagree with the core message of its proponents but because it brings out the worst imaginable in a so-called public discourse. Indeed, to consider the week a an exercise in discourse is farcical. It's simply a week of two sides talking past one another. Nothing is affirmed and nothing changes. Worse still it is utterly predictable and boring.

Sunday, 4 March 2012

Why the Governor General Won't Save Us


The current Robocall scandal represents a clear challenge to Canada's democracy. It threatens to undermine both the legitimacy of the previous election and the very institutions of governance, particularly Parliament. These are dangerous developments. Irate Canadians have taken to the streets in protest. This is surely a practical and vocal way of communicating dissatisfaction with the government. These protests are, in general, healthy expressions of outrage, yet some of the rhetoric and demands accompany them are unhelpful and troublesomely contradictory.

Friday, 2 March 2012

In Defence of Elections Canada

Patience is a virtue often tossed callously aside by angry mobs. Pitchforks and flaming torches replace commonsense and respect for due process when political events seem to spiral out of control. Anger is the appropriate response in the wake of serious allegations of electoral fraud centring on 'robo-calls' in the previous federal election. Canadians should justifiably demand accountability and a persecution of those involved. Sadly, as has been the pattern since taking office, this is a government loathe to take accountability for its own actions, regardless of the scale. In its place are spin, obfuscation and lies, and, should anyone actually be held to account, it will be a rogue staffer outside the corridors of power tossed under the all too familiar bus.

Sunday, 26 February 2012

Federal Spending Power and the Drummond Report

There are several ways to read the Drummond Report  - the Commission on the Reform of Ontario's Public Services -as is no doubt the case with any report. Most obviously, there is a provincial lens and, even then, there are markedly different interpretations. Undoubtedly, Ontario's fiscal house is no longer in good order. A combination of recessionary deflation coupled with increased commitments in public expenses have created a nearly untenable position of declining reviews and growing commitments to social programs. Beyond there immediate variable of global economic turbulence there are a host of structural problems which plague Ontario's economy. Drummond's report, however, exist partially in a vacuum and treats government spending as a free floating phenomenon. It's typical of economists, isolating what interest them and cutting out the external world. Sadly, the approach does not translate well to public policy and the report has been met with a predictable chorus of agreement and rejection.

Thursday, 23 February 2012

The Canadian Senate: A Measure of Performance Legitimacy?

Discussion of the Senate often vacillates between equally untenable alternatives: outright abolition and wholesale reinvention. The former position - chiefly promulgated by the New Democrats - is grotesquely unaware of both this country's history and its institutions. The latter - most vocally asserted by the Conservatives - seeks to accidentally reinvent Parliament's upper house by introducing a modicum of democratic legitimacy. While stasis is  equally undesirable, the status quo is preferable to unthinking change solely for the sake of change. Yes, the Senate lacks democratic legitimacy, but simplistic solutions to rectify this will do more harm than good.

Monday, 20 February 2012

C-30 & the Tragic Farce of Canadian Parliamentary Politics

The maelstrom arising from the tabling of the Conservative government's bill C-30 - misleadingly short-titled the "Protecting Children from Internet Predators Act" - has by this point become centred around the minister who proposed it, Vic Toews, and his public battle with an anonymous Twitter account. Sadly this sideshow has subsumed important questions about the dire consequences of certain provisions of the bill itself, much of which Toews - the very minister who sponsored the bill - now claims he was unaware of.

This single piece of legislation raises a host of serious questions extending far beyond the contents of the bill itself, many of which cut to the core of our system of parliamentary system. It is astounding that so-called stalwart defenders of our governmental heritage, such as Andrew Coyne, defend the lack of knowledge on the part of ministers. The problem is that this overlooks entirely a central feature of responsible government: ministerial responsibility. How is it possible for a minister to be responsible for the content and functioning of legislation so central to his own purview when the contents and scope are unknown to him? The simple answer is that he cannot.