The October Crisis of Justin Trudeau

Referring to the coups by which Napoleon Bonaparte in 1799 made himself First Consul and later Emperor of the French and his nephew Louis Napoleon Bonaparte in 1851 made himself Emperor of the French, Karl Marx, in The Eighteenth Brumaire of Louis Bonaparte, remarked that history repeats itself: '…the first time as tragedy, the second as farce.' We might say the same of Pierre Trudeau’s invocation of The War Measures Act during the October Crisis of 1970 and Justin Trudeau’s invocation of The Emergency Measures Act last month.

Understanding and judgement of Pierre Trudeau’s action on 1970 are weak and differ radically between those in Quebec who experienced it and remember it and those in the English Canada who merely observed it and have largely forgotten it. But it was serious action in a serious crisis.

Justin Trudeau’s invocation of The Emergency Measures Act was an artefact of his amateur actor’s politics. There was no crisis and the emergency measures were an act.

When they set out the truckers’ convoy was a protest against a vaccine mandate for border crossing. This mandate was obviously pointless and part of Justin Trudeau’s use of vaccine mandates as a ‘wedge issue.’ Unvaccinated truckers had been crossing the border for a year when there were no vaccines, and many months after when they were given no priority for vaccination. But as the States would now require them to be vaccinated their protest was futile. As was pointed out even by those who had some sympathy for them. Most truckers would have no truck with the protest.

By the time they had arrived in Ottawa they had become proxies for everyone who was fed up with the mass of restrictions we have lived under for almost two years. The reporting is sketchy, but plainly many of those protesting in Ottawa were not actually truckers.

Responding to the truckers protest with his usual stock of hateful libels, ‘antisemitic, Islamophobic, anti-Black racist, homophobic, and transphobic,’ Justin Trudeau then hyped the protest to something like the ‘apprehended insurrection’ that was the ground of his father’s invocation of The War Measures Act, and never happened, though in 1970 many sensible people were panicked into imagining it.

This was Justin’s Big Lie. The truckers' biggest crime, the blocking of the Ambassador Bridge, was cleared up before he invoked Emergency Measures. Otherwise they, and their many fellow travelers, were guilty only of great mischief. But having adopted the Big Lie, Justin had to act as if it were true. The Emergency Measures followed necessarily.

Throughout the pandemic any questioning of the massive restrictions under which we have struggled to live has been vigorously suppressed. As must happen when free questioning is suppressed, many people lacked any understanding of what was being done and lost trust in authorities. Among these were the truckers, and their many sympathizers.

Most protests are inarticulate, disruptive and attractive to troublemakers. The truckers convoy was quite ordinary in this respect. What was extraordinary about it was the widespread sympathy it evoked, but more, led by Justin Trudeau’s instinct to demonize it from political motives, its general condemnation by elites who have been indulgent, or even supportive, of more malign protests.

Also extraordinary was the unanimity, running from the centre to the left, by way of the greens, of support for the Emergency Measures. People who had routinely denounced quite ordinary measures of Stephen Harper’s government, or even Liberal governments, as dictatorial, stepped forward to voice their support for the suspension of our rights and a witch hunt after supporters of the truckers. We only missed Stephen Lewis stepping forward to add his endorsement. The Conservatives’ opposition to the Emergency Measures, and qualified understanding towards the protesters, was condemned as the right uniting in extremism.

The cancellation of the Emergency Measures nine days after they had been invoked was not ‘job done.’ The farce had finished. The freezing of a few bank accounts were the only measures taken. In accordance with the legislation, the reviews will be long in coming.

But the consequences of the farce may be serious. The casualness with which the Act was invoked, the widespread, ready support, in the absence of any good grounds, the keenness with which the persecution of sympathizers with the convoy was projected, the vilification of the opposition, showed a country incapable of serious thought, quick to condemn, not ready to argue.

Meanwhile another tragedy was about to be enacted in Ukraine. There were some, who should have known better, who insinuated that the truckers were a Putin inspired distraction.

With the Emergency Measures ended their supporters pronounced those who had dared to oppose them ‘silly,’ with ladles of Putinesque disinformation to make their case. What was truly silly was the invocation of the Emergency Measures and their approval by an elite herd.

The world is always a serious place. If we try to make a farce of it there will be consequences. History may repeat itself, first as farce, then as tragedy.

What's a Tory to do? The challenge of using a vote you don't think you should have.

I have four months to decide what to do with my vote for the next leader of the Conservative Party.

There are fourteen candidates to choose from at last count. Half of them I’d never heard of before they entered the race and I started getting emails from them. I won’t name them for fear of giving them undeserved publicity.

Those I had heard of, who held office when Stephen Harper was Prime Minister, would perhaps do, but their respective efforts to persuade me that she or he would be best, and sometimes that another would be poor, have not enlightened me.

You can see their calculated posturing, trying to distinguish themselves with new ideas, which Conservatives shouldn’t have, or claiming that they will return the Party to its old principles, which none should claim ownership of.

A consequence of the ridiculous year and a half campaign is that the best the Conservatives have to offer are spending their time mouthing evasive platitudes and fatuous hyperboles, checking themselves from speaking frankly for fear of losing votes, trying to distinguish themselves from each other across the country when they should be mounting a coherent opposition in Ottawa.

And preening themselves, claiming a special empathy with the voters, unique talents from their experience, and generally displaying a corrupting immodesty.

Several candidates seem to be staunch social conservatives, with whom I sympathise. But the idea that they can advance their cause by leading the Conservative Party without persuading the voters generally to see things as they do is stupid. And stupidity is a moral failing. And how staunch their social conservatism would prove when the next election loomed we cannot know. Stephen Harper was supposed to be a frightening social conservative and only lifted a finger to wag it at Tories concerned about abortion or gay marriage.

Then there is Kevin O’Leary. I never saw him in any of the hundreds of hours I spent in Conservative meetings or campaigns. All he brings to the contest is celebrity. Worse, celebrity bought with our tax dollars on the CBC. His only conservatism is the caricature conservatism of the brash entrepreneur. He may not be Donald Trump, as he insists, but the parallels are strong and his is noisome enough.

As with Trump in the States, the media have fallen for him. Before he announced he was running he had received more coverage than any of the other candidates and now that he is coverage has spiked. His impertinence in running shows him unfit.

Count me ‘Never O’Leary.’ If I can figure out a way to stop him I’ll use my vote that way.

But I don’t have a vote so much as a chance to express my preferences. On May 27 party members are to fill in a preferential ballot listing their preference from 1 to perhaps 13. I have written elsewhere on the irrationality of preferential voting. But the risk is that the ultimate winner may be the one who was many peoples’ sixth choice because they knew nothing against her or had heard of him. Without knowing how my fellow Conservatives may vote down to their sixth preference at least I can’t know how to deploy my preferences to assure O’Leary won’t win.

I was actually polled a couple of weeks ago, in a poll that offered only 8 choices and I chose 9, ‘Don’t know.’ But we really have no idea how the candidates are doing. So I could randomly pick several ‘anyone but O’Learys’ and find that had I put X 5th and Y 6th instead of the other way round I could have helped stop O’Leary.

All of which is to make the point that I shouldn’t have a vote at all. The Conservative MPs in Ottawa should choose their leader. They know the candidates. It is they the leader will lead. They will win or lose in 2019 on the choice.

Liberals may be pleased by the choice Liberal ‘supporters’ made in choosing Justin Trudeau in 2013. But very many Republicans are dismayed at the choice of Donald Trump as their candidate for President by a shambolic process and even Conservatives in Britain are dismayed at the choice and confirmation of Jeremy Corbyn as leader of their Labour Party by ‘grassroots’ there.

In Britain Conservative party members disastrously chose Ian Duncan Smith to lead their party in 2001. Two years later Conservative MPs were able to oust him. It took three months to choose him but he was replaced in a matter of days.

But whomever Conservatives choose on May 27 we’ll likely be stuck with. Even had the provisions of Michael Chong’s much touted ‘Reform Act’ saying MPs can trigger a review of their party’s leader been adopted by the Conservative caucus at the opening of Parliament, and I doubt and cannot find that it was, the prospect of having to spend a year finding a new leader would make the new leader’s position impregnable.

And so Justin Trudeau’s position may be impregnable. Because the MPs we elect can’t choose the man or woman most likely to defeat him.

Justin obliges the Supreme Court appointments squawkers without thinking

Pierre Trudeau appointed ten justices to the Supreme Court of Canada and made two of them Chief Justice.

He did it the old fashioned way. There was no ‘process’ and no ‘transparency.’ He just announced a name. But there was 100% accountability. If you didn’t like the appointments, you knew whom to blame.

His son says this won’t do. He writes in The Globe and Mail, which apparently serves him as his official journal, that ‘the process used to appoint Supreme Court justices is opaque, outdated, and in need of an overhaul.’

What has happened to make Pierre Trudeau’s way of appointing judges ‘outdated’ and so on?

In the last three decades an incoherent crescendo of squawking from law professors and politics professors and politicians who affect to be high minded and media pundits has demanded that what they insist on calling a ‘secret process’ when, as with all other practices for filling positions except elections, it is simply confidential, must be changed. To what end and how they do not agree. But the ever obliging, never thinking, Justin Trudeau has decided to give them everything they want.

A paradox of the squawk is the general agreement that the justices we have as result of the ‘outdated’ process are about the best justices there ever were anywhere, led by Chief Justice Beverley McLachlin, whom Trudeau quotes.

A seven strong Independent Advisory Board will come up with a short list of names to fill the vacancy created by the retirement of Thomas Cromwell. The Board is instructed in bureaucratic flannel to find saintly geniuses, of whom there are none in Canada, and set out in the same bureaucratic flannel how it determined that its choices qualify. They report to the Prime Minister and how much of their reasoning will be made public is unclear. Though The Globe can be relied on to winkle out any ‘secrets.’

The process is based on applications. Anyone who would apply to be a justice of the Supreme Court of Canada would show disqualifying conceit and ambition. ‘Woe unto them that are wise in their own eyes, and prudent in their own sight!’ Isaiah 5:21

But the Board is to ‘actively seek out qualified candidates and encourage them to apply.’ Whether that means that they are to send out a circular to everyone legally qualified, which, oddly, includes me, though I haven’t practiced law for fifteen years and am not a member of the Law Society, is unclear. If it means that they are to solicit applications from distinguished judges and eminent counsel, it means those will not be asked whether they are willing to serve, but whether they are willing to demean themselves but pitching their qualifications to the Board.

The Board is made up of the usual suspect ‘non-partisan’ worthies. We had not heard of the Right Honourable Kim Campbell for many years, but one can see the non-partisan optics. Some, like Jeff Hirsch, President of the Federation of Law Societies of Canada, are practically ex-officio. Others, like Susan Ursel, winner of the Canadian Bar Association’s Sexual Orientation and Gender Identity Conference Hero Award in 2011, are ideological operators.

But those who agree to serve on the Board as accredited worthies show themselves unfit to advise on who should be our next Supreme Court justice. They have accepted ‘power without responsibility.’

Justin can’t give quite everything some of the squawkers want. John Robson and opposition MPs complain that Parliament won’t get to vote on the appointment. But, as they should know, the power of appointment under the Constitution lies with the the Governor General, who will act on the advice of the Prime Minister. As the Prime Minister’s father was effectively the ‘seal of the framers,’ the Constitution can’t be changed.

MPs will hear from Campbell and the Minister of Justice how what is, wrongly, being called the ‘nominee’ was chosen and quiz her or him under the tutelage of a law professor. Will they be told how unsuccessful applicants fell short of the ideal? That should do wonders for the administration of justice.

Trudeau writes ‘The appointment of a Supreme Court justice is one of the most important decisions a prime minister makes. It is time we made that decision together.’ But we are not, as we should not be, going to make the decision together. Trudeau is farming out the decision, not to make it accountable, but to make himself unaccountable for any dud they may come up with. As with so much of modern rational administration and politics it doesn’t matter what the result is so long as you follow the correct ‘process.’

The best prospects for the Court will be put off by the process. Those who submit to it will be tainted by it. It will lower the quality of the judges who serve on the Supreme Court of Canada, while for a time enhancing their corrupting prestige.

While the Conservatives go through grotesque American style proceedings to choose a leader Canada is a one party state

For the first and perhaps most critical year and half of its time in power the Liberal government will face no opposition. Such is the consequence of the complacently accepted proceedings by which our political parties choose to choose their leaders. And sideline the MPs we elect and whom leaders lead.

The nominal Official Opposition, the Conservative Party, will choose a new leader on May 27, 2017. Members of the party in good standing at March 28, 2017 will vote.

A spending limit of $5,000,000 for leadership candidates implies that Conservatives will for the next fourteen months be putting their money towards puffing their candidates and dissing their rivals rather than calling the Liberals to account and building a war chest for the next election.

It also implies that the new leader may be someone who might have to spend millions to make him or herself known to party supporters and rustle up new members who may not even be party supporters. Is the best new leader not one of a handful of already well known Conservative MPs? Might anyone become leader, a Trump, or a Corbyn?

The attention of the media and Conservatives and politics fans will be on the leadership race. We may not be treated to the sordid spectacle the Republicans have presented in the States, but the candidates will be preening themselves and claiming to have new ideas, which conservatives are not supposed to have, and set a new direction for the party.

What new direction does the party need? Doesn’t it stand for fiscal responsibility, low taxes, government lite, a foreign policy based on Canada’s historic national interests? ‘Direction’ is nothing more than tactics, what to emphasise, whom to pitch to, image, all of which depend on the political conjuncture, which will be one thing in May 2017 and another thing at the next election.

Rona Ambrose was quickly chosen by Conservative MPs and Senators as Interim Leader and well received. But the understanding is that by accepting the interim leadership she has barred herself from becoming leader. Perhaps she would be the best to lead the Tories in the next election. But she mustn’t. The better she performs as interim leader the more poignant the position becomes.

As a ‘caretaker’ leader, Ambrose must cut a wan figure and not upstage the new leader when she or he is chosen. Freed of the reportedly tyrannical leadership of Stephen Harper and surveillance by the PMO Conservative MPs seems perfectly disciplined in marking time until they get their marching orders from the new leader.

In the meantime the party must be a ‘generic’ opposition, scoring points where it can.

The Saudi arms deal was a Conservative achievement. Now they are in opposition they question it. Most of the Liberal platform consisted of pledges to undo things the Conservative government had done. The Conservatives in opposition pick and choose what to make an issue of: stand up for financial transparency and secret ballots for unions and CF-18s bombing ISIS, keep quiet on the long form census and door to door mail delivery.

Those who can remember more than a few months ago may remember the rapturous reception of Michael Chong’s Reform Bill, supposedly empowering MPs to unseat their leader. It was to restore democracy to Parliament Hill. But even had Chong’s bill been passed as he originally presented it, a leader invested by the votes of party members and irreplaceable without a year long contest would have been impregnable.

The new leader of the Conservative Party will not lead me, a member of the party as I have already disclosed. He or she will lead the MPs in the Commons. They should choose who will lead them, rather than patiently wait until the amorphous membership presents them with a leader.

The Opposition is supposed to be an alternative government. What should we do if the Liberals only had a minority, or a small majority subject to erosion by by-elections and defections? If the government fell, there would be no alternative government ready to take over or to fight an election.

Justin Trudeau is Prime Minister because a majority of MPs support him in that role. He has no term, despite many media references to Prime Ministers’ and Premiers’ terms. It’s not going to happen, but it at least should be possible that MPs might think differently and want to support someone else as Prime Minister. That the Liberal Party might split. But at least until May 2017 the Conservative Party is not an alternative government. Nor an opposition. We have for now a one party state. With a complementary personality cult.

Airhead Justin is entitled to no more respect than he earns

Matt Gurney thinks we should treat Prime Minister Justin Trudeau courteously, ‘with the respect [his] office deserves.’ Happily, our institutions require no such inhibition on free and vigorous political speech.

‘Prime minister’ is a job description. Historically it wasn’t even official. Britain’s Sir Robert Walpole, the first ‘prime minister,’ was officially First Lord of the Treasury, but as the man who presided over meetings of ministers and dealt directly with the King, he came to be called the ‘prime minister.’

Over time references to the Prime Minister have crept into legislation and regulations in Canada. But there is no reference to the office in the Constitution.

The Prime Minister is the most powerful politician in Canada. But as such he is entitled to no more respect than he has earned, and people will naturally differ on that.

Parliament, the Courts, the Crown, are institutions we should respect as fundamental elements of our country. The Queen, the Governor General, and judges deserve our respect because of their positions. Whatever we may think of them as individuals. There is ceremony and protocol to embody that respect. While there are procedures in place to assure that the Prime Minister can do his work, there is no ceremony and protocol prescribed for him.

The quasi-inauguration Justin Trudeau laid on for himself in November, only extending the practice of his recent predecessors and many premiers, confuses this aspect of our political institutions and culture.

As does an insistence that he should be referred to respectfully as the Prime Minister rather than Justin, Boy Trudeau, the airhead or whatever takes your fancy.

Trudeau is recently returned from his visit to Washington where he was treated to a guard of honour, a 19 gun salute and a ‘state dinner.’ Foreign leaders may want to lay on ceremony for prime ministers to butter them up or just for the fun of it. Stephen Harper treated Benjamin Netanyahu more like the President of Israel than its Prime Minister on his visit to Ottawa in March 2012. But we should not allow this to confuse us.

Trudeau, like Netanyahu, is a ‘head of government,’ not a ‘head of state.’ Countries differ in their handling of the two roles, one with power and work to do and answerable for it, the other representing the whole country to itself and the world. In most countries they are separate roles with a monarch or president with a limited role in government and a prime minister, whatever the title from Chancellor in Germany to Taoiseach in Ireland, with power and responsibility and work to do. In the United States, France, Russia and Latin America the roles are combined. Even in the present envenomed state of American politics some of Barack Obama’s harshest critics grant him some respect as POTUS. The combination of the roles leads both to politicians exploiting their role as head of state for political advantage and loss of respect for the state when they go bad.

We should understand and relish that we have got it right in separating the roles in Canada and not let Justin Trudeau’s celebrity and partisan hoopla confuse us.

There is much to be said for a civil tongue in politics, as in all of life. But there is no reason why we should be more civil about Justin Trudeau because he happens to be the Prime Minister than about anyone else. Are we asked to be polite about Rona Ambrose because she is the Leader of Her Majesty’s Loyal Opposition. Or Tom Mulcair because he once was?

When Trudeau goes abroad on our tab, he is not there to ‘represent’ Canada with a pretty face and a pleasant manner. He has work to do, or he should be back at his desk in Ottawa. We should hope that he does the work well, but should be watching him critically to see whether he does. We should not be distracted by ceremony and photo ops.

People think it’s clever and daring to be rude about the Queen. They shouldn’t, but no one seems to object and there is enough silly gush to balance their rudeness, though ‘Two wrongs don’t make a right.’ If people want to be rude about Trudeau, it’s their right. They may be cleverly rude or stupidly rude, but it’s all part of free speech trying to come to grips with the character and work of the most powerful politician in the country so that MPs in Parliament and voters at the next election can judge him.

INJURY ADDED TO INJURY RESIGNING FROM THE CABINET TO RUN FOR PREMIER

Five Ontario cabinet ministers have now resigned in order to run to succeed Dalton McGuinty as Leader of the Ontario Liberal Party and Premier of Ontario. They have done this in obedience to an edict of McGuinty's unknown to law and the conventions of parliamentary government and the rules of the Ontario Liberal Party.

It was not always thus. In 1968 seven sitting cabinet ministers ran to succeed Lester Pearson as Leader of the Liberal Party of Canada and Prime Minister and none of them resigned.

The folly seems to have begun in Alberta in 2006 when Ralph Klein decreed ministers wanting to succeed him would have to step down almost six months before the leadership vote.

Ministers resigned in 2009 in Manitoba to run to succeed Gary Doer and in 2011 in British Columbia to succeed Gordon Campbell and in Alberta to succeed Ed Stelmach. As Interim Leader of the New Democratic Party of Canada Nicole Turmel decreed that candidates for the leadership would have to step down as committee chairs and opposition critics. On obscure grounds Thomas Mulcair was allowed to remain Deputy Leader.

But before all that ministers routinely ran for their party's leadership without resigning.

Why should ministers have to resign to run to lead their party?

Is it because they would be too busy running to carry out their responsibilities? If so, why has this only recently been noticed? And why then shouldn't the whole government resign prior to an election?

And why, the Parliament of Ontario having been shut down so that the Liberals can choose a new leader, should injury be added to injury and the cabinet be stripped of those who are presumably its strongest ministers as well. With the prorogation, ministers already have a lighter load, not having to answer for their ministries to Parliament.

If ministers running for the leadership may be a bit distracted by their campaigning might they not be better able to handle their portfolios than temps who will very likely be shuffled away once the new leader is chosen, just as they have mastered their new portfolios?

The argument that leadership candidates will be too busy to remain in cabinet makes no sense. If a candidate believes that, he or she can step down. But that would be based on an assessment of what he or she was going to do in the way of campaigning. Kathleen Wynne might have decided it would be enough to say 'I'm Kathleen Wynne. You know me.' and keep working at her minister's desk.

The real impetus behind the requirement that ministers resign to run for the leadership is the notion that it is somehow unfair that a leadership candidate should already be a minister. As is often the case when people say something is unfair, there is nothing unfair about it. The ex-ministers running for the leadership have won themselves prominent places. Whatever those of us who are not Liberals might think of them, for Liberals that is a fair advantage. In the ordinary course whoever will lead the Ontario Liberal Party should have made it to cabinet. It would be a harsh commentary on the Liberals if no one in the cabinet was deemed worthy to lead them.

As it is, the only other candidates are former ministers who had stepped aside for a while. They have the earned advantage of their prominent pasts and the unearned advantage of not being associated with any recent troubles.

This foolishness is a new injury to our politics arising from the treatment of party leadership on the model of American political candidacies. The new Leader of the Liberals will lead the Liberal members at Queen's Park, and as Premier will be responsible to the Legislative Assembly. But the Liberal Party members will chose the Leader and the notion arises that a cabinet minister should have no advantage over the next person who goes through the turnstiles at the Walmer entrance to the Spadina Subway Station. Everyone should have to prove themselves in a campaign, as if no one knew anything of them before.

If running for the leadership is really too onerous to combine with sitting in cabinet, it can only be because candidates are expected to mount a U. S. style, full time campaign. To reach out to the Liberal grassroots, who should already know them, and recruit temporary Liberals to pack the delegate selection meetings. No good can come of that.

There are many advantages in politics of which the most elementary, as the operatives will tell you, is name recognition. Perhaps Justin Trudeau should have to change his name to James Sinclair in order to run for the Leadership of the Liberal Party of Canada.

I cannot find that anyone has ever commented in our media on this curious and  foolish practice. The resignations of five senior Ontario cabinet ministers passed without comment. Apart from their being reported as each candidacy was announced, they have not been noticed and commented on. The closest thing to a comment is in the 9th paragraph of this column by Rex Murphy.

LESSON IN THE LAW The Canadian Wheat Board and the Courts

December 31, 2011,  Online

The government's legislation to end the Wheat Board monopoly sparked a confusion of litigation.

First the Wheat Board applied to court to have the very introduction of the legislation declared a breach of a provision of the Wheat Board Act requiring a vote of farmers before changes to the monopoly. Then Board directors who opposed going to court in the face of legal advice that it would be pointless sued the other directors for wasting the Board's funds. Finally, having won the declaration despite that advice, the directors who sought it are applying to have the legislation, which has now been passed, declared invalid though it was key to their success that they expressly denied that they were challenging its validity.

Confused? You have every right to be. This is what happens when the courts are used as a substitute for democratic politics.

In granting a declaration that Agriculture Minister Gerry Ritz had broken the law in introducing the legislation Federal Court Judge Douglas Campbell laid into the Minister with gusto in reasons released on December 7. The Board had applied for a declaration that Ritz's conduct in introducing a bill to end the Board's monopoly in wheat and other grains was an "affront to the rule of law." Campbell had "no hesitation in granting" the request. He admitted that the judgment would have no effect but practically said he wanted to teach the Minister a lesson. In what?

At issue was Section 47.1 of the Canadian Wheat Board Act, which required the Minister to consult with the Board and call a vote of producers before introducing a bill to add or remove grains subject to the Board's monopoly. The government argued plausibly that the section applied only to adding or removing specific grains and not to the government's plan to end the monopoly altogether. Campbell would have none of that and held that 47.1 was what law professors have called "manner and form" legislation.

It is unquestioned law that Parliament cannot bind its successors by providing in an act that it cannot be amended or repealed. But it has been suggested that Parliament can provide that an act can only be amended or repealed after following a specific procedure, in a particular "manner and form." A handful of odd Commonwealth cases are cited in support of this suggestion. There are a number of acts in Canada that provide for a "manner and form." The Ontario Taxpayer Protection Act, requiring a referendum on new taxes, is a notable example. But it is questionable that they would be effective if laws were passed in defiance of them.

Campbell based his decision on a snippet of Professor Peter Hogg's Constitutional Law of Canada.

Would the Parliament or a Legislature be bound by self-imposed
rules as to the "manner and form" in which statutes were to be
enacted? The answer, in my view, is yes.

Peter Hogg has been called a "constitutional guru" by Canada's national newspapers. Readers may be familiar with him as the man who instructs M.P.s on how they should question judges before they ascend to the Supreme Court of Canada. He was my estates and trusts professor. If you want to know about the rule against perpetuities or the rule in Howe v. Dartmouth, Hogg is your man. But they are law because of decided cases and statutes and not because the professor says they are.

Hogg's opinion is simply a statement that he thinks "manner and form" legislation should be effective. It is no authority for its being so. Your opinion is a authoritative as his, guru or not.

Hogg is not specific about what "manner and form" legislation should be effective. A provision that an M.P. introducing a bill to amend or repeal an act must first cut out his liver and eat it would amount to a provision against repeal and surely be ineffective. A provision that amendments to the Criminal Code must only be introduced on a Tuesday would not be worth thinking about.

The fundamental legal and democratic principal is that one Parliament, one majority, should not be allowed to fetter, in any way, the right of future Parliaments to make law as they, and the voters, see fit. How would the Opposition like it if the Harper government provided in all its bills that their repeal or amendment be subject to the advice and consent of carefully defined constituencies sure to object?

Before Campbell the Wheat Board said that it did not question the validity of Bill C-18. The Liberals upped the ante by asking the Governor General to withhold Royal Assent until an appeal was decided, despite the fact that the validity of the legislation was not in issue. Both the Board and the Liberals have used the Federal Court to make political propaganda.

Bob Rae even appeared at the news conference announcing the challenge to the validity of the legislation citing Campbell's decision, which expressly does not touch on the validity of the legislation. Rae is a lawyer and should know better.

Whatever the courts finally say about the legislation, the Wheat Board monopoly is at an end. But the legal and political waters have been muddied. Political argument has been confused by strained legal arguments. And the law has been used as a tool of political propaganda. Something Mr. Justice Campbell was too ready to lend himself to.

Jason Kenny and others have been berated for criticizing the courts, the Federal Court particularly. But if any time the government loses an argument in court ministers are to be pilloried as scofflaws the government will either shy away from making arguments that might be successful, as its argument over the Wheat Board may still be, or they will have to reply in kind.

GOVERNMENT BY PRESS RELEASE The Supreme Court of Canada Selection Panel

October 14, 2011, online

On August 5 the Minister of Justice, Rob Nicholson, announced the members of a“Supreme Court Selection Panel to fill the vacancies at the Supreme Court of Canada” resulting from the retirements of the Justices Ian Binnie and Louise Charron. The panel reportedly finished its work early this month, though no further announcement was made.

The Supreme Court of Canada Act provides that the judges of the Court shall be appointed by the Governor General, in practice on the advice of the Prime Minister. The Selection Panel had no legal foundation. It was a group of Members of Parliament, but it was not a committee of the House of Commons. No statute or regulation required or authorised the Minister of Justice to establish it. It was the creation of a press release.

The release said the panel would review a list of candidates “created”by the Minister of Justice “in consultation with the Prime Minister, the Chief Justice of Canada, the Chief Justice of Ontario, the Attorney General of Ontario and other prominent legal organizations,…” with input from the public. From this list the panel was to“provide” an unranked list of six from which the Prime Minister and the Minister of Justice will choose two. That they will be appointed by the Governor General is not mentioned.

The casual informality by which it is reported that the highest legal offices in the land are to be filled is weird. But it is the inevitable result of the perennial squawk that something must be done about the “process” by which Supreme Court judges are chosen, even from those who are perfectly content with the appointments made in the decades since the squawking started.

It is unlikely that there are more than six willing and likely candidates for the two Ontario vacancies on the court, so the Selection Panel may have no influence on who gets appointed. But they must have been given more than six names or they would have known they were being taken for fools and there is a risk that they may have eliminated one or more of the best prospects. If not this time, then another time, if this absurd process is entrenched.

Who are they anyway? Five M. P.s put up by their parties, four of them lawyers, one a former Minister of Justice who was involved in earlier attempts the placate the squawkers, and one, the chair, a financial planner. Tory M. P., Brent Rathgeber, chuffed at his selection to select, blogged that he was “spending the last part of my summer reading judgments and published articles written by the prospective nominees.…it has been quite some time since I have read law so intensely but I am certainly finding this project, although time consuming, extraordinarily interesting.”

They were not elected to choose judges and should the result be less than satisfactory they won’t be held responsible. Before the waters were muddied by the squawkers, we knew who was responsible. Now Harper can say he reformed the “process” and is not responsible for the result.

Agitators about the process crudely see seats on the Supreme Court as plums  handed out by the Prime Minister and sought by the unworthily ambitious. A seat on the Court is public service and the best prospects will see it as a duty they would not seek but would accept if called upon. The press release’s talk of candidates makes it sound more like an election with candidates pushing themselves forward.

It begins to look like the Giller Prize, the long list reduced to a short list by the Selection Panel and the Prime Minister and the Minister of Justice choosing the winners.

Binnie and Charron announced their retirements in May. In the months that have passed perhaps a dozen judges and eminent counsel have had the prospect of moving to Ottawa and the pluses and minuses of a seat on the Supreme Court dangled before them. The best of them could fairly be fed up with waiting. Binnie was appointed on January 8, 1998, little more than six weeks after the untimely death of John Sopinka, whom he replaced. The “process”now looks like taking six months with the court short handed for several weeks.

None of this need matter to Stephen Harper. He is playing to the squawkers. There never was a prospect that he could shape the Supreme Court to serve or protect a conservative agenda. Canada does not afford the judicial tendencies an American president can turn to when making appointments to the courts. We’ll get two competent judges who will pass through the charade of a hearing before a House of Commons committee and then be forgotten beyond the legal chapter of the chattering classes. But we might have done better if Harper had just announced appointments in June.

ELIZABETH MAY'S CONFIDENCE Review rejected by The Literary Review of Canada

September 1, 2009,  Rejected by The Literary Review of Canada

LOSING CONFIDENCE:
Power, Politics, and the Crisis in Canadian Democracy
Elizabeth May
McClelland & Stewart
280 pages, paperback
ISBN 9780771057601

Elizabeth May's seventh book is a ramble through stories that have caught her eye in the media, her observations from the gallery of the House of Commons, and reminiscences of her time as assistant to Mulroney environment minister Tom McMillan, and her encounters with politicians since her earliest days as an environmental activist. All of this is supposed to be linked to her obliquely punning title, which evokes the common claim that people have lost confidence in politics.

Claimed loss of confidence, or faith, is a kind of feedback argument. The premised loss of faith is invoked to add urgency to whatever political criticisms you want to make, particularly of the working of political institutions, and those criticisms are used to support the claimed loss of faith. What surveys done recently, 30 years ago, 60 years ago and 90 years ago establish the loss of faith? There has plainly been a loss of party attachment. Lifelong Liberals or Conservatives are few now, but, when there were many, people had confidence in their lot and none in the other lot. There is no ground for saying they had more confidence in politicians or politics generally. Decline in voter turnout, a favorite theme, may mean any number of things. It may as well mean that many are prepared to trust anyone who might win an election as none.

May fails to build an argument on her several criticisms of our current politics, which, whatever their individual merits, are too superficially presented to be compelling. She is regularly inconsistent

May is severely and fairly critical of Stephen Harper's iron control of his government, his caucus and his party and ruthless political play. She does not allow that minority government, to which she is not surprisingly partial, adding a third cheer to Peter Russell's two, has fostered a continual election ready discipline. Moreover Harper's wicked ways, while plausibly linked to the substantial if not entirely relevant literature on concentration of power in the Prime Minister's office, bring their own remedy. They don't work. He was denied a majority and has imposed no agenda hidden or otherwise.

House of Commons committees have indeed "descended into farce" since 2006. But while the Conservatives have handled them badly, the root of the problem was the attempt of the opposition parties, in a kind of dry run for the Dion coalition, to use the committees to report bills that the government could not allow the House to pass, that the opposition could not have forced through without bringing down the government and bringing on an election, which they were not prepared to do. Conservative committee filibusters were a response to opposition attempts to advance sham legislation not intended to pass but to embarrass the government. The opposition parties did not conduct themselves so during Pearson's minority government, but that predates May's Canadian political memory.

A chapter entitled "Police State?" goes over some of the scandalous failings of the RCMP, but it does not help that there is a faint air of paranoia in her claim that the RCMP acts to keep politicians off its back by their investigations of them and the publicity given those investigations. B. C. Premier Glen Clark's difficulties are instanced but the chief count in her indictment is the force's investigation of the leak of the Martin government's decision not to tax income trusts. May contends, as others have, that the announcement of the investigation, including the statement that there was no evidence connecting Finance Minister Ralph Goodale with any wrongdoing, coming halfway through the 2006 election campaign, when the Liberals held on to a slim lead, turned the election against them and was intended to do so. Paranoids do have enemies and there may be something to her contention, at least as to motive, if not effect. But she is too easily satisfied and does not persuade.

With the pundits, the players and the government relations industry of which she is highly suspicious May, is fond of turning points, the events that shifted the polls. While many people make a good living purporting to identify these, the reality is that much of what shows up in polls during an election is simply the ruminating voters slowly focussing their minds on a decision weeks and then days off. Put simply, the opposition brought Martin's government down because they thought he was vulnerable and he tried to stave off defeat because he thought so too. No one was reckoning on Commissioner Zaccardelli turning the tide. Oddly, May's discussion of the RCMP omits its long investigation of Brian Mulroney over Airbus and says nothing of Harper's appointment of a Commissioner from outside the force, William Elliott, fifteen months before she began her book.

Complaining of the "Americanization of our Election Process", May attacks attack ads and politics by polling. In doing so she accepts that they are effective: "the use of databases detailing voter intentions and inclinations has become a science." She states baldly that a single Conservative ad, the one showing the Dion voter  as rolling dice, "all on its own persuaded 11 per cent of Canadians not to vote."  She is, of course, a great admirer of Stéphane Dion and perhaps this explains why she joins with the Conservative wise guys and Dion himself in thinking that the attacks ads against Dion put paid to his leadership. But Dion's problem, and the Liberals', as they knew by early 2007, was that he was not a leader. In pointing this out the attack ads had little effect and perhaps gained him some sympathy. Here again, the remedy for attack ads and "scientific" polling is that they will not work. May does not propose that they be banned.

May devotes more than a dozen pages to the story of her successful effort to be included in the leaders debates. Despite her professed attachment to parliamentary government and complaint of too much power for party leaders, she knows where her interests lie and is keen on these grotesque proceedings, which are the acme of the Americanisation of our elections. She comes near, with Andrew Coyne and Tom Axworthy, to advocating legislation for them, with perhaps regulations covering camera angles and make-up and what then? We shall not be allowed to vote unless we can prove we have watched the debates? I am proud to say I have never watched a leaders debate except at a barbecue in 2004 when I was diverted by divers partisans jeering at their party's leader.

There is a chapter advocating proportional representation. There are several books making the case for proportional representation in Canada, well organised lobbies advocating it and no shortage of people talking it up in the media. May adds nothing to this. She has somehow got it into her head that first past the post was invented in the 11th century and thinks that is pretty damning. One might counter more truly and as tellingly that proportional representation is a Victorian invention. After the trouncing of MMP in the Ontario referendum of October 2007 and STV in B. C. last May the Green Party will have to face up to the fact that for the foreseeable future it will have to make its way with first past the post.

She criticises the media saying it treats elections as a game, worrying about concentration of ownership and finding all her critics unfair and out to get her, though most coverage of her as she became a national figure has been rather flattering. And she leans heavily on media contacts and journalists whose views she finds sympathetic, particularly Don Martin of the suspect National Post. What seems to disturb her is not that her interests and ideas are not reflected in the media but that others are. Happily she proposes no remedy.

The final chapter praises coalition government. The Greens have a long way to go before they will have enough seats to coalesce with anyone. Evidently May would like to see a coalition with the Liberals. She protests that she never advocated strategic voting, but the deal with Dion not to run candidates against each other, her loathing for Harper and the appearance that she was as much distressed by Dion's defeat as the Green Party's failure to win a seat make it understandable that many, including Greens, understood strategic voting to be indicated. If the end of the Green Party is to be in a Liberal/Green coalition., at least some Greens will do as well to vote Liberal as vote Green. And they must ask themselves whether the final end of action on climate change and all environmental issues might not best be achieved by the party folding and its supporters investing their passion and understanding in the Liberal Party. Where that would leave Elizabeth May need not concern them.

This review was rejected by The Literary Review of Canada as "mean-spirited". In fact I pulled my punches. Were Elizabeth May not a minor celebrity with a ready made following in the Green Party faithful such a spilling out of whatever was on her mind would not have been published. Had it come from the leader of a major party it would have been scoffed at. As it is, it was hailed by Lawrence Martin, particularly for its attack on the concentration of ownership in the media, which Martin, writing for CTVGlobemedia, alleged "very few are prepared to talk about". The Globe also gave it an enthusiastic review from environmental journalist Nicholas Ross.

I restrained myself from remarking, amongst other things, on May's tendency to name dropping, from Bill Clinton, a friend  for nearly forty years, and Al Gore, of course, to scores of M. P.s, of various stripes, and other lesser figures. Whatever the issue, we never get far away from what May was up to,  though most of us had never heard of her until three years ago.

HARPER'S GAME AND THE QUEEN'S GOVERNMENT

December 7, 2008,  Online

So. She did the wrong thing. Weak and stupid she had not, three years after she had accepted it, learned her job.

Oh, to have been a fly on the wall for her two hour meeting with Harper!

She did not wait long to see him and she did not wait after seeing him to give her decision.

When did she bull up on her duties? On the plane back from Prague? Over breakfast? Or did she leave it to Harper to instruct her?

Neither she nor those who may have briefed her can be suspected of any partiality to Harper. Perhaps those who briefed her stopped short of saying what she should do. But, knowing what the question was, how could she be briefed without the obvious conclusion being pointed out: that she could not take the advice of a Prime Minister to prorogue Parliament precisely because he knew, as she must have known, that he lacked the confidence of the House, that if she did not prorogue Parliament he would be defeated?

Charles II prorogued Parliament several times when he did not like what it was up to. His father ruled for many years without Parliament and lost his head. The Merry Monarch found it safer to have a Parliament in being but not in session. Jean and Harper have carried us back over three hundred years to the time before men had figured out how to make responsible government work.

The first polls suggest Harper is winning his game. If an election had been held on Friday, he would have won his majority. Majorities approve the prorogation, condemn the coalition, oppose Dion becoming Prime Minister, want an election, which we are not having because even Harper must think that after a defeat on Monday Jean would rightly have refused a dissolution and called on Dion to form his government.

But the polls are ambiguous and may prove more volatile than the stock market. And should Jean install a pollster at Rideau Hall and act on polls? Are the polls a vindication of Harper's request and her decision? They may show that he can get away with it. They do not show that he was right.

How could the decision be defended? She was bound to follow the Prime Minister's advice, at least until he had actually lost a confidence vote in the Commons? This would be to mistake her position as one governed by rules to be found in textbooks, expounded by experts, conventions, precedent, rather than the practical logic of our institutions and her position in them. There is only one rule: The Queen's Government must be carried on by a government with the confidence of the Commons. Conventions or precedents have no meaning or authority except as they show how that rule may have been followed in particular circumstances. Her wrong decision cannot create a precedent except in the sense that, if Harper wins his game, future Prime Ministers, and Premiers, may think that they could get away with the same gambit, in circumstances when those pleased with the consequences in this case would be discomfited.

If there were a rule that the Governor General must always follow the advice of a Prime Minister until he loses a confidence vote, Paul Martin could properly have asked Jean to prorogue Parliament in November 2005, winning himself a couple of months to buy off the NDP again, to lure a couple of M. P.'s across the floor, to check the death notices for opposition M. P.s. Polls showed Canadians did not want an election.

But Jean's decision seems more to be approved because people don't like the Coalition and because of a general sense that politicians are playing games while the country faces an economic crisis. The reader should know that I am a Tory and abominate the Coalition and all its elements. Despite my condemnation of Harper, I shall, as always, vote Tory in the next election, whenever it is. If the prorogation derails the Coalition and even gets Harper his majority, I shall be so far pleased.

But we cannot look to the Governor General to decide who would be the best government for Canada. It seems very unlikely that Jean would actually prefer Harper to Dion as Prime Minister. Her leanings seem to be all the other way. And she has never been shy of separatists. Unless the controversy at the time of her appointment has made her so and she was afraid it would be revived if she allowed a Bloc supported government to take over next week.

Those who defend Jean's decision on the basis of what they believe will be the substantive result must be saying that the Governor General has the right and the duty to decide who would best govern the country, even if we must suspect that Jean was not exercising her judgment and was simply afraid to say no to Harper, that she made what was, for those who approve it, the right decision for the wrong reason.

If your reason for believing Jean was right is that you don't like the Coalition you must believe she would have been right to make the decision for that reason, because she did not like the Coalition. And that she would have been right to say no to Harper if she preferred the Coalition. If she would have been right to decide on the basis of her preference of government why should she not campaign for her choice in an election, as before responsible government was achieved in Canada, Governor General Sir Charles Metcalfe did in 1844, successfully?

Or perhaps you would defend the decision as the Governor General applying the will of the people. And we are back to the polls. Except that the polls, though taken before, were not released until after her decision. And majorities said that the opposition parties "have every democratic right to form a coalition government" if Harper is defeated in the Commons and that Harper can't be trusted to lead the Government.

But more importantly the only will of the people the Governor General can properly take cognisance of is the duly elected House of Commons. All governments will be unpopular at times. It is not the Governor General's job to second guess the House and choose a government that might be more popular in the country than it's standing in the Commons from the last election might indicate.

Perhaps you think the prorogation is just a sensible brief delay, a time out for heads to cool. But are heads cooling? Will they? The campaigns and the demonstrations have begun. No doubt our minds will be on other things for much of the next seven weeks, Christmas, New Year's, Obama's inauguration, but so far as national politics interests us there will only be more dissension, anger, confusion and dismay. And by January 26 Parliament will not have got through any business since it adjourned quietly last June.

The Queen's Government is not being carried on.

POSTSCRIPT

Since writing the above I have read news reports recounting what happened at Rideau Hall on Thursday morning.

Apparently Jean never saw Harper alone. Kevin Lynch, the Clerk of the Privy Council and head of the Civil Service, and the Governor General's secretary, Sheila-Marie Cook, were present, except when Cook stepped out to consult law professor, Companion of the Order of Canada, and, in the words of The National Post, constitutional guru, Peter Hogg.

Lynch's responsibilities, qualifications and interests in the question are unclear. Unless it was to advise on the formalities in the event of Jean's decision one way or another. Or, to brief on the work of the Government, taking the Governor General into the substance of politics where she should not go.

Cook is a long-serving bureaucrat whose only relevant experience is in protocol, which was not in issue.

Hogg's involvement, and in the background that of politics professor Peter Russell, who has apparently met Jean several times since her appointment, reflects the dangerous misconception that the issue was a matter for experts. Pleasant and instructive as chats with the distinguished professors emeriti might be, they would lead us astray if they suggested that there were rules based on precedent or congealed in conventions, on which they were experts, that a Governor General must follow, rather than institutions that can and must be made to work, if they are understood.

Hogg 's 1200 page Constitutional Law of Canada deals with the subject in a few pages that attempt to expound conventions that govern what the Governor General must do in one circumstance or another. But this shows a profound misunderstanding, that what matters is conventions and the opinions of law professors, rather than the logic of our institutions, which will show what must be done even in circumstances we have never seen or thought of, such as those that arose last week.

Anonymous "constitutional scholars" are quoted by The Globe and Mail as saying that it would have been beyond Jean's powers "to enforce any qualifications to a prorogation order". And they were wrong. If, per impossibile, she was right to prorogue parliament, she would have been right to stipulate for an early summons of a new session. She did not have to, as Harper wanted a new session called for January 26 anyway.

The Globe says the proclamation proroguing parliament did not set a date for its resumption. But it does: Prorogation Proclamation
So much for the experts.

A WEEK IS A LONG TIME IN POLITICS - The 2008 projected coalition and prorogation

December 3, 2008,  Online

EVENTS, DEAR BOY

Minority parliaments always involve a game of chicken. Will government and opposition smash into each other in a confidence vote, likely ending a Parliament and leading to an election, or will the government veer off, dropping an unpalatable measure, or the opposition back off, abstaining, as the Liberals did several times in the last Parliament.
 As I have argued in "IS IT ALL JUST A GAME" Stephen Harper, like most politicians, has reduced politics to a game and at the opening of this Parliament he will have felt he was perfectly positioned to the run the Liberals off the road. How could they risk an election after such a poor showing in the last election and with a new leader to be picked in May? Despite musings about "uniting the left" and Harper's own dalliance with the Bloc in the 2004 minority Parliament, a coalition of the opposition seemed unthinkable. In the fatal phrase of Joe Clark, he could "govern as if he had a majority."
 Uninterested in government, Harper had Flaherty present an unexciting economic statement, perhaps unexceptionable despite the affected outrage of the opposition. The real move in the political game was the proposal to abolish the $1.95 per vote subsidy to political parties. There's something to be said for it. I'd scrap all election finance laws, subsidies, limits, tax credits, the lot. But that is not the point. The point is that the opposition parties rely on the subsidy, the Bloc particularly, while the Conservatives are flush with money from mass fundraising. There may have been polls indicating a large majority oppose giving tax money to political parties. In the game of politics such polls are much relied on but they do not show what people will think of an issue when it actually arises in a particular context. To get at that you need to think through the value of a measure for the public good, its effects on different interests and whether they may seem fair.
 It is characteristic of the shallow, the game is all, approach of Harper's team that money seems so important. They suppose their healthy cash flow is key to their success and squeezing the finances of the opposition parties will weaken them in the next election. They suppose they defeated Dion because they had the money to run ads mocking him back in 2007. Dion was defeated because he was Dion. The ads added little to the political impact of that fact. Though Dion likes to think he was a victim of attack ads.
 So Harper's talent for the game of chicken has been shown up, as will all talents when set up against competitors equally keen on the game.
 

THE GOVERNOR GENERAL

"Experts" have weighed in on what the Governor General could or should do. The role of the Governor General is not a matter for experts. All that is needed to understand the role of the Governor General is a general understanding of our government, what should be general knowledge, at least for those of us who pay much attention to politics. That such general knowledge is often lacking in those playing roles in Ottawa and commenting on it partly explains why we are heading into such a mess. If such an old hand as Mike Duffy has to consult "experts" as to what the Governor General might do, she might fly to the moon.
 The Governor General's role is to see that the Queen's government is carried on. To do that she must find a government that can get its necessary business through the House of Commons. That is what is meant by confidence. A non-confidence motion amounts to a general statement that the House will not pass government business. The defeat of a particular measure, a tax bill for instance, demonstrates that the House has no confidence in the government.Usually the Governor General doesn't have to look to find a government. A party has won a majority in a general election. Or, as with Joe Clark in 1979 and Stephen Harper in 2006, the party with the most seats in the Commons is the obvious choice. Until a week ago it seemed obvious that Stephen Harper could carry on a government. Now it is obvious he can't. So the Governor General must look to see if there is another possible government, and obviously there is. It is not her job to judge whether it will be a good government or even how long it will last, a while is long enough.What if, after a defeat in the Commons, Harper asks Jean to dissolve Parliament and call an election? The Governor General is obliged to follow the advice of a government with the confidence of the Commons. When Joe Clark's government was defeated in 1979 and Paul Martin's in 2005, there was no alternative government possible with the existing House and the opposition parties wanted an election. Schreyer and Clarkson followed the advice of the Prime Ministers but they did so because without an election there could be no government with the confidence of the House. It  was not the advice but the circumstances that compelled them to call an election. Having lost the confidence of the House the Prime Ministers' advice was no longer compelling.

Today there is an alternative government in waiting and only Harper wants an election, out of sheer desperation. In his letter to Adrienne Clarkson of September 2004 suggesting that she consider the possibility of an alternative government should Paul Martin's be defeated, Harper confirmed the correct position and can't retreat from it now.
 It is reported that Harper may ask Jean to prorogue Parliament. This could get a little technical but it is enough to know that Parliament sits in sessions and to prorogue Parliament is to end a session, to put it on call, as it were, to the next session. Parliament has been routinely prorogued about a hundred times since Confederation to manage the flow of government business. But, if Harper advises Jean to prorogue Parliament, he will do it before a no confidence vote precisely because it is obvious that he will lose that vote if it is held and by asking Jean to prorogue Parliament he will confirm that the basis on which she must generally act as advised, that the government has the confidence of the House, is lacking.
 So what the Governor General should do is perfectly obvious. Only partisan panic could drive Harper's team to deny any of it and talk, quite seriously apparently, of proroguing Parliament.Even if Jean did prorogue Parliament how would it help Harper? The desperate hope would be that the coalition would crack. In how long? The uproar would likely solidify the coalition while government business was held up and civil unrest developed.
 One satisfying irony of the last week has been the general consensus that Jean could rightly refuse Harper a dissolution, as Byng did King in 1926. The effect of King's subsequent campaign of lies seems finally to have worn off.
 We may hope that Jean does the right thing. It should not be difficult. But when she was appointed she said she did not know what the job was. Presumably she knew she would hand out medals and travel about being gracious. It is precisely her job now that she was ignorant of. Can she have learned? Having spent several years presenting television programmes on public affairs she did not know how the government of her country worked or what would be her role in it. Paul Martin's appointment of someone ignorant of her role was scandalous and so was her acceptance of it. I have argued that understanding the role of the Governor General is not difficult. But it is not something that can simply be learned from a book. It requires an interest in and feel for our institutions that Jean evidently lacked on her appointment and may not have acquired since. That would effectively leave decisions in the hands of her staff, faceless, self-important bureaucrats. This is not as it should be. We are reminded what a vicious dope Paul Martin is.
 A cacophony of "experts", journalists, and interested politicians has muddied the waters in which Jean must navigate. Speculation on the technical possibilities has flourished to the extent that the preposterous prospect of a "race to the palace" in which Harper would try to get the Queen to dismiss Jean before she could take a decision against his advice has been raised.
 It is perhaps best that Jean has been abroad and missed much of the babble, though she says she has been following the situation. It is symptomatic of what has been done to reduce the office that Jean's "state visits" to Central European countries were ignored by the media even as the crisis developed. She was reported to be "travelling" in Europe until the moment when she was tracked down and it was announced she was returning to Canada.
 

PARLIAMENTARY DEMOCRACY

Harper's team has been arguing that the coalition is trying to reverse the result of the election, that the Conservatives won and the Liberals lost. This is another example of politics as a game. The Conservatives won more seats, got more points, but they did not get a majority and, if the opposition parties can get together to form a majority, they are perfectly entitled to.  It is a fair point that no one voted for an Liberal/NDP coalition. But no one voted for a Conservative majority, which Harper seems to think he should be able to act as if he had.

The coalition backed by the Bloc is not trying to overturn the result of the election but to make the best of it in their interests according to their lights. It may be dreadful.  But it is democracy. Any of the 62.4% of voters who did not vote Tory have only themselves to blame if they do not like the result. These are the people you voted for, even including the Greens.

It is perhaps salutary that in this mess we are reminded that we elect Members of Parliament who are free, despite their whingeing, to do as they think best.

The Supreme Court of Canada keeping us guessing - R. v. Bryan

Bryan reminds us that it is never wise to think we know what the Supreme Court will do. The lengthy 5/4 decision with two sets of reasons for the majority will keep us guessing.

Paul Bryan must have thought it would be pretty safe on the night of the November 27, 2000 general election to post results from the 32 ridings in Atlantic Canada on a website before the polls had closed in the rest of Canada. He announced he was going to do it and ignored a letter from Elections Canada warning him not to. It was forbidden by Section 329 of the Canada Elections Act, but two years before in Thomson the Supreme Court had struck down Section 322.1 of that Act, which banned publication of polls in the last three days before an election. Surely the Court would strike down Section 329, particularly as the judges in Thomson who would have kept the ban on publishing polls were concerned that the polls might be inaccurate while Bryan was posting accurate, if partial, results.

As the Court reads the Charter Bryan's freedom of expression under Section 2(b) had obviously been breached so the Court had to decide whether Section 329 was a reasonable limit under Section 1. From the earliest cases the Court has read the Charter's rights and freedoms abstractly and strictly, readily finding breaches. If the Court understood the rights and freedoms concretely in their historic legal meaning its power would be less. "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication" protected under Subsection 2(b) of the Charter are threatened when governments try to control what people think and to hold power by censorship and persecution. Whatever its merits, Section 329 was not that kind of measure. By reading the protected rights and freedoms abstractly and strictly the Court brings the reasonable limits of Section 1 into play and sets itself free to do what it likes.

The majority writes of deferring to Parliament and all the reasons employ the Oakes jargon of "rational connection" "proportionality" etc. with which the judges pretend to be engaged in subtle legal analysis when they are deciding whether they like a piece of legislation or not. But there is no mistaking that the judges are doing nothing different from what a politician, a journalist or a drunk in a bar would be doing in saying whether we should get results from the East while polls are still open or not. Real deference to Parliament would be the Court upholding legislation it did not like. That it does not do.

The Court's other ruse for concealing its political activity is to say that it relies on evidence of social and political facts. In the best of cases such evidence falls short of what the natural sciences can provide, making it easy for the Court to take it or leave it as it pleases. In Bryan there was an embarrassing dearth of evidence on the effect of results being released before the polls close. The Court had to resort to "logic and reason". This amounted to little more than the notion of "informational equality". The phrase describes the objective of the legislation: all voters should have the same information when they vote; none should know how others voted before voting themselves. Giving a concept a name, even a nice and imposing sounding one like "informational equality", does not make it a value. The Court accepted that it was a value.

The government's expert witness, a political science professor, testified that "informational equality" is "a central assumption of electoral democracy". This would have surprised voters before the days of the secret ballot. We may accept that secrecy of voting is now "a central assumption of electoral democracy" but the secret ballot was not adopted to prevent voters from knowing how their fellows had voted.

The other factor that weighed with the Court was a poll from 2005 that found 70% of those questioned "thought people should not be able to know election results from other provinces before their polls close". The Court would not say "If 70% of the people want the law they can have it." Whatever the talk of deferring to Parliament the Court has never talked of deferring to the people. It claims to be a bulwark against a tyranny of the majority. The Court took the poll as evidence of a subjective anxiety that would undermine confidence in democracy whether reasonable or not. It was not that publishing results before the polls close is unfair but that many people think it is unfair that mattered and justified the law. Concerned about the reliability of polls in Thomson the Court took the 70% at face value not considering whether a different wording of the question or a different context would yield a different result.

Resentment of results reported while polls were still open has been sustained because the West saw elections decided before they had finished voting. Staggered voting hours now mean practically that only results from Atlantic Canada are available before polls are closed everywhere. The minority would have struck down Section 329 on the ground that withholding the results from the 32 Atlantic ridings was not important enough to justify the breach of freedom of expression they found.

If Westerners have objected to hearing results from the East before they have finished voting it was not so much hearing as the results themselves they did not like. With a great majority of seats in Ontario and Quebec and those provinces tending to vote in blocs the West was powerless and saw it. More seats in the West and more open contests in Ontario and Quebec would relieve the West and late voters might even want to know the state of play before voting.

The Court held that it was important that Western voters should vote in ignorance of what Atlantic voters might be doing even though, after Thomson, eve of voting polls as indicative as partial official counts are now a constitutional right. Who can blame Bryan for thinking he was safe? We can predict elections but not Supreme Court decisions.