Tuesday, 29 April 2014

What the Court's Reference Re Senate Reform Really Says About Trudeau's Appointments Scheme

While the Senate may be a headache for the government, the Governor General may provide the solution to the third party's perceived appointments problem. Unfortunately, everyone seems to have written off Justin Trudeau's proposed -- albeit vague -- appointments scheme. Writing about the Supreme Court of Canada’s Senate reference, Globe and Mail columnist Lawrence Martin argues that: 
The Trudeau plan, should he come to power, would see him appoint a special non-partisan panel to forward nominations for the Senate. That creates problems on its own. How do you find a credible non-partisan panel? 
The Supreme Court decision adds more woes. As NDP Leader Thomas Mulcair’s office has pointed out, clauses 64 and 65 of the court’s decision appear to require that any new consultative process for Senate selection obtain provincial agreement and constitutional change. If such is the case, Mr. Trudeau has a Stephen Harper-like dilemma – only worse, because he’s already committed to his reform.
There seems to be a broad consensus in the media, and particularly in Parliament, that the Trudeau plan is entirely unworkable and, as Martin claims, the Court’s decision makes it even more improbable. The contrary is actually true. If anything, the Court’s ruling has cleared the way for Trudeau by clearly showing what will not be permissible – elections – and, in doing so, has left the realm of possibility considerably open. I argue that Trudeau’s critics are deliberately misreading the ruling. The Court’s ruling is much more nuanced and leaves the executive with considerable leeway. Finally, contrary to both the NDP and the Conservatives, there is a viable model that can be readily adapted and, surprising, it is a model established by the Conservatives and subsequently demonstrated to work quite well.

Friday, 25 April 2014

The Spectre of Mega-constitutional Change

The ink on the Supreme Court of Canada's judgement in the Senate Reference (available here) has barely dried and yet the prognostications that the effort to reform the Senate is dead seem to be legion. As the CBC's Terry Milewski tweeted: "SCOC on Senate reform: forget it. Abolition? Double forget it". That sentiment appears to be common.

The Court has not dealt a blow to reform; rather, it is has dealt a blow to a particular approach to reform. It has, yet again, reaffirmed the federal nature of the country, acknowledged (again) that the provinces are not merely glorified municipalities and subservient to the central government, and, importantly, reminded the Harper government that the Constitution is much more than a few words committed to paper.

Saturday, 12 April 2014

The Life and Legacy of Saint Jim

Few individuals are afforded a public eulogy. Rarer still, as Jim Flaherty was, to be afforded two very obsequious public eulogies in such a short span of time. The first, just three weeks ago, recapped a career in politics spanning two decades. The coverage of Flaherty's retirement from his Finance post -- his political eulogy -- was met with platitudes from pundits and politicians. The coverage of his tragic passing -- his personal eulogy -- was met with much the same. Indeed, the rhetoric has been almost identical, but this is to be expected. How to separate the politics from the man when the two were so deeply entwined?

Thursday, 10 April 2014

The Belated Vindication of Marc Mayrand

At the height of the furor over the robo-call scandal a few years ago, I used this blog [In Defence of Elections Canada] as an outlet to defend Elections Canada's conduct of that investigation and, in particular, the conduct of Marc Mayrand, the Chief Electoral Officer. At that time I was taken aback by some of the arguments being made in the pres and, in particular, by those nominally deemed progressives attacking Mr. Mayrand. 

Monday, 24 March 2014

The Spectacularly Fraudulent Pretense of Fair Elections Act

Pierre Poilievre has left no stone unturned in his search for false pretense to justify his entirely unnecessary and deeply undemocratic Fair Elections Act. Apart from the minister himself and his party’s loyal coterie, there is no support for this legislation. Indeed, the response has been nothing short of damning. Canada, once a world leader in forward thinking election law – from the establishment of Elections Canada in 1920 (the first agency of its kind) to subsequent changes to party financing (including the establishment of the Commissioner of Canada Elections in 1974) – has, in what is surely an unprecedented turn for this country, been roundly condemned not only by its own leading intellectuals but by a raft of international observers worried about what the changes portent for Canadian democracy.

Friday, 21 March 2014

Parliament Should Follow the Court's Lead and Assert Its Independence

The aborted appointment of Marc Nadon reaches much deeper than a single failed judicial appointment. Instead it speaks to the worst tendencies in the current government and deep-rooted institutional failures. It is a government that sees the constitution – whether the written text or long established convention – as something to be disregarded when it becomes politically inconvenient. It is a government that fundamentally rejects the federal nature of Canada and, as a consequence, is a government that viscerally rejects the multilateralism and dialogue that such an arrangement necessitates. 

Thursday, 6 February 2014

Senate Red Herrings and the Path Not Taken

While much of the reaction to Justin Trudeau’s first salvo in an attempt to make the Senate a partisan-free zone has been balanced -- excluding, of course, the other political parties (seemingly validating the problems associated rabid partisanship) – there have been a few extreme criticisms that suggest removing parties from the Senate constitutes a massive problem in and of itself, particularly for accountability. These break down into roughly three broad themes.

Wednesday, 5 February 2014

The Complicated Accountability of the 'New' Commissioner of Canada Elections

Justice Minister Peter MacKay signals how
much more accountability the Fair Elections Act will bring
The recently tabled Fair Elections Act contains a number of provisions which will, in theory, strengthen the Canada Elections Act but these changes are likely little more than a heavy spoon of sugar designed to sweeten the fatal dose of poison it just administered to Elections Canada. That Act will fundamentally restructure that organization, effectively marginalizing it and, with it, Parliament's oversight of Canadian elections. By relocating the office of the Commissioner of Canada Elections to -- inexplicably -- the office of the Director of Public Prosecutions, the Conservatives are simultaneously weakening the existing chain of accountability and potentially weakening prosecutions. More problematic, the relocation brings the new incarnation of the office uncomfortably close to the political executive. The independence of the new office, despite the trappings of a fixed term and a secure mandate, is somewhat precarious.

Union Station, Confederation and the Legacy of John A.

"Arriving at MacDonald, MacDonald Station …. Please stand clear of the doors"
As the bicentennial of John A. MacDonald’s birth approaches, and with it Canada’s sesquicentennial, the jockeying is on between politicians and civic leaders attempting to demonstrate which among them has the greatest love for Canada's inaugural Prime Minister. By 2015 we could well wake to find that next to every public building and thoroughfare has been converted into the the Sir John A. MacDonald [Fill-in-the-blank]. 

Tuesday, 4 February 2014

Fair Elections and the Commissioner of Canada Elections - A New Collar and a Shorter Leash

Reading the first draft of the Fair Elections Act is a maddening experience. If the aim of the Act is to ensure the proper conduct of elections or enhance accountability and transparency, it is difficult to see how this piece of legislation will accomplish it. In fact, the bill is likely to to have the opposite effect because it effectively marginalizes Parliament and brings the conduct of elections close to the centre of government. Indeed, the provisions of the bill relating to Elections Canada run counter to the purpose of the Canada Elections Act (previously the Dominion Elections Act) for nearly a century by allowing the executive in through the backdoor.

The Fair Elections Act and the Future of Elections Canada (and Canada’s Elections)

As a general rule, if you want to understand the impact of the Conservative government’s legislation, simply look to the short title of the bill in question and assume the opposite of what the title implies. It is doublespeak codified in law, giving rise to bills that purport to free grain farmers while empowering large conglomerates or ‘economic action plans’ that are as sedate as rocks. The so-called Fair Elections Act will likely join its namesake – the Fair Representation Act – as legislation running counter to what it so boldly purports.

Sunday, 2 February 2014

Partisanship, the Senate and the Lessons of the Civil Service Commission

There is much to be commended in Justin Trudeau’s sudden and unexpected decision to eject the entire cohort of Liberal Senators from the parliamentary caucus. Surprisingly the pundit class have been somewhat overwhelmingly positive in affirming the move – even cranks like Conrad Black approve – while the predictable chorus of partisans on the Hill have derided the move as a ploy and smoke screen. The response from the Conservative and New Democrat benches does much to confirm the relevance of the move demonstrating just how thoroughly partisanship is choking parliamentary politics.