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It is unquestioned law that Parliament cannot bind its successors by providing in an act that it cannot be amended or repealed. But it has been suggested that Parliament can provide that an act can only be amended or repealed after following a specific procedure, in a particular "manner and form."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.

IS IT ALL JUST A GAME? Tom Flangan's Harper's Team

May 12, 2008, Books in Canada


Harper’s Team
Behind the Scenes in the Conservative Rise to Power
by Tom Flanagan
McGill-Queen’s University Press
326 pages, $   hardback
ISBN: 978-0-7735-3298-4

Until the merger of the Canadian Alliance and the Progressive Conservative Party at the end of 2003, Stephen Harper was, to all appearances, a straightforward conviction conservative, a somewhat wonkish neo-con with a touch of social conservatism. Tom Flanagan was much the same, though his social conservatism was fainter.

Harper had written the Reform Party’s policy manual, the Blue Book, before Flanagan became that party’s director of policy, strategy and communications in May 1991. They have worked together, more often on than off, ever since, as Harper pursued his course to 24 Sussex Drive. Harper's Team is largely an account of four campaigns in which Flanagan worked for Harper: the Canadian Alliance leadership in 2002, the Conservative Party leadership in 2004, and the general elections of June 2004 and January 2006. The team is a score or more behind the scenes workers who are, and will mostly remain, unknown to all but the keenest politics fans, most notable Ken Boessenkool, the young economist turned lobbyist who played a key role in policy and strategy in all four campaigns.

Flanagan has been a professor of political science at the University of Calgary since 1968, one of the many Americans hired by Canadian universities during the great university boom of the sixties. Outside his political role he is best know as a critic of conventional and official thinking on native rights and the role of Louis Riel in Canada’s history. But it is one of the claims of political science to understand what makes people vote the way they do, the same claim made by political strategists who work for politicians. Never active in politics before he went to work for the Reform Party, Flanagan came late to what is often a young man’s game. Some start in their teens. But he took to it with an enthusiasm that is evident throughout Harper's Team. It is a lively, sometimes dramatic, account of campaigning from the nuts and bolts of hiring buses, designing posters and renting office space to the crafting and communication of policy and responding to opponents’ attacks and the inevitable ‘events’. Flanagan is naively excited by the use of computers and the web for campaigning. If his dreams were fulfilled there would be no escaping it.

Harper’s Reform Party Blue Book was a thoroughly conservative document. Flanagan had a reputation as a conservative in an uniquely conservative political science department. He says he was attracted to the Reform Party by the Blue Book. As recounted in Waiting for the Wave, his 1995 book on Preston Manning and the Reform Party, Flanagan split with Manning - he was actually fired - because Manning was preparing to move beyond conservatism, hiring the former Liberal strategist Rick Anderson, and soft-pedalling Reform’s conservative message. In Flanagan’s image, Manning caught the wave of Western alienation and anxiety about the deficit and taxes but had no commitment to conservatism as he waited for the next wave that he hoped would carry him to 24 Sussex Drive. Manning, the most devious of politicians, has always been happy to let those who want him to be a conservative think that he is, but, outside of his domestic life, he has never been a conservative. In the founding of the Canadian Alliance, while enthusiasts hoped to unite the right, Manning promoted a United Alternative, embracing even weary New Democrats.

Stephen Harper had solidified his reputation as a conservative as Reform’s most articulate policy voice in the Commons before resigning in 1997 to lead the “More freedom through less government” National Citizens Coalition. What could be more conservative than that? He was on the sidelines as the Canadian Alliance was formed at cross-purposes between a united right and a united alternative. When Stockwell Day had to step down Harper campaigned for the leadership as the True Reformer: True Conservative, sceptical of his rivals’ keenness to treat with the Progressive Conservatives. When he engineered the merger of the Alliance and the PCs the name Conservative Party of Canada, while comforting old Tories, seemed to confirm that the new party would be the real thing.

The media eagerly promoted an image of Harper and Flanagan as neo-cons with a mission. A high point was Marci McDonald's paranoid “The Man behind Stephen Harper” in the October 2004 The Walrus. The Liberals gleefully depicted Harper as frighteningly conservative and dismissed any sign of moderation or pragmatism as evidence of a hidden agenda. Harper's Team shows what Harper in office confirms, that he and his team are no more frightening or conservative than Joe Clark.

Flanagan occasionally piously affirms conservative principles but he makes it plain that his concern and Harper’s was always simply to win campaigns. In this context policy is not a basis for governing but an election tool like a leader’s tour or an advertising campaign. Whether a platform plank is good government on conservative or any principles is not even a consideration. Its only importance is its effectiveness in moving voters, the most shameless example the GST cuts, the most embarrassing the promise not to tax income trusts.

By Flanagan’s account elections are won and lost, lost in 2004, won in 2006, by all the elements of the campaign, of which policy is only a part, pitched against the other parties’ campaigns. This is the proud conviction of political insiders, the multi-partisan confraternity of political activists, government relations consultants, pollsters and political staffers, endorsed by the many journalists who are their frequent interlocutors. But the results in 2004 and 2006 can be explained without a thought for the campaigns. The immensely prestigious Paul Martin was expected to sweep the country when he became Prime Minister. The Adscam revelations kept him to a minority but voters were uneasy about the little known Stephen Harper. In 2006 Martin had shown himself to be a feckless Prime Minister, the Gomery Commission had displayed all the rot in the Liberal Party and Stephen Harper had come to be known as an ordinary politician, not exciting but not frightening, worth a try. The shift in Quebec, not the result of a beefed up Conservative campaign in that province but of the historically familiar shift to a rising Conservative party, the pointlessness of the Bloc, and the shabby disarray of the Liberals, was enough to give Harper his minority government rather than a virtual tie with the Liberals.

Fans of the game of politics will enjoy Harper's Team. Canadians still anxious about a hidden agenda should read it to set their minds at rest. But it is disturbing in a different way. It illustrates how the political game, campaigning, has come to overwhelm politics, whose end is government.

Flanagan says that “Campaigning is an audition for government.” He claims that organising and directing campaign workers, raising money and spending it well are a test of the skills needed in government. The same could be said of running a stamp club, planning a wedding or commanding an army. It is an absurd analogy, which shows that the specificity of government, the substance of politics, is lost in the political game.

Harper has governed as if he were running a political campaign. Beyond the five priorities coming out of the election campaign, in making appointments, bringing forward legislation, responding to events, his government has been hesitant, inactive, inept. Everything is, and is seen to be, calculated to win a majority, but the surest way to a majority, governing well, eludes them because of the dominance of political players in politics.

Flanagan analyses the voters as given and fixed interests and identities that must be won over by special appeals and policies. The commonweal to be governed well disappears. There is no suggestion that public understanding could be moved by promoting conservative or any other principles. A Canada that elected a Conservative government would not be a whit more conservative than it had been before.

Flanagan may be an academic conservative. He mentions a kind of conversion experience on reading Friedrich Hayek at the ripe old age of 35. There is no mention of the demonised Leo Strauss. Yet his conservatism seems academic in the pejorative sense. His former student Ian Brodie, now Harper’s chief of staff, must also have left his academic conservatism behind.

In 1998 Flanagan wrote with Harper “The purpose of the conservative movement is to change public opinion and public policy.” In 2001 he wrote “Conservatives and libertarians who see politics as a means of effecting change in public policy are more likely to achieve their goals by supporting parties with a consistent free-market outlook than by submerging themselves in “big tent” parties that may sometime win elections but have no clear agenda...” Yet his work in the 2004 and 2006 elections and his prescriptions at the end of Harper’s Team aim precisely at a big tent party offering only scraps to conservatives and libertarians. Scraps that the liberal media exaggerate, as they did the recent banning of tax credits for “offensive” films.

More than the political game’s deflection of politics from government it is simply not well played. The wise guys who play politics are gifted with inexhaustible self-esteem but, because they mistake their strategy and campaigning for the substance rather than just the show of politics they fail at their own game. They become overexcited as Flanagan admits, most dangerously in the attempt to defeat the Martin government in May 2005. Chuck Cadman may have saved Harper from a second defeat. Flanagan refers to his visit with Doug Finley to Cadman the afternoon before the vote. They saw him for fifteen minutes: “...he was visibly tired, and I could see that he wasn’t up to negotiating a return to caucus.”

Over 100 years the Liberal Party abandoned all its principles to win power , becoming experts at the game. Look at them now. Harper’s Conservatives have learned from the Liberals. But they risk the same fate, not after 100 years but early in this century. For conservatives whose hopes were raised in the 90’s it is a depressing prospect.

All the skills of the team that won the 2006 election have now been deployed for over two years to the end of winning a majority, but faced with an historically feeble opposition there is no reason to think the Conservatives would do any better now than they did then. There is no reason to think a Harper majority government would be much different from his minority. It would likely devote itself to winning another majority at the factitiously fixed date. A majority might loosen for a while the election ready discipline Harper has imposed and reveal what character and thinking survives in the Conservative Party. But when campaigning overwhelms politics it all becomes about winning, exciting for the players and the fans but no good for the voters. As in any game there is only one agendum, winning. If voters would not give them a majority in 2006 for fear of a hidden agenda, they will not now because they cannot see what would be the point.

GUILTY PLEASURES The Group of Seven, Canadian Identity and Contemporary Art

March 3, 2008, Books in Canada

Beyond Wildernes
The Group of Seven, Canadian Identity and Contemporary Art
John O’Brian and Peter White editors
McGill-Queen’s University Press
392 pages, $49.95 paper
ISBN 978-0-7735-3244-1

The compilers of this slick tome seem deeply upset by the success of the magnificent Group of Seven exhibition organised to mark the 75th anniversary of the Group’s first exhibition in 1996 and the equally magnificent Tom Thomson exhibition of 2002. The former was apparently “seriously misleading and deeply insensitive”. They are particularly upset that the exhibitions were accompanied by lovely big books with many more nice pictures than this one.

The Group of Seven, Tom Thomson and similar Canadian landscape painters you see did not just paint pretty pictures. They were emptying the North of its native people and claiming it for capitalist exploitation. Indeed the theory is that all landscape painting is just a claim for new rights to own land following on the decline of feudalism.

Critical theories have been multiplying in the academy since the 1960s but they do not seem to have put a dent on public appreciation of Thomson and the rest. Even more scandalously the market for their works has never been stronger. Beyond Wilderness vainly tries to correct this situation.

After the compilers’ introductions, which give their message loud and clear, the book is a jumble of short pieces, a few specially commissioned, and a few included to show what the post-modern crusaders are up against.

Much of it serves as a sampler of current academic writing in what pleases to call itself cultural studies. The important thing is not to make an argument, still less to lay out facts, but to invoke a theory and apply it to any old thing, in the instance Canadian landscape painting. You pick up the lingo: “privileged forms in a pervasive discourse of social management”; “landscape as a category not only symbolizes but enacts colonialist desire.” You throw in the odd “imbrication”, invoke Michel Foucault and Fredric Jameson. When invoking authorities big names are not necessary and indeed are best used sparingly. When expounding a theory it is enough that anyone has published a similar theory. For people who stopped thinking years ago a reference to a theory takes the place of thinking. That it is all drivel, right back to Foucault, hardly matters.

There are also accounts of or, to the extent possible with what is to some extent conceptual art, illustrations of, what the compilers believe is corrective art for our times. Michael Snow’s La Région Centrale, which he modestly proposed as “a gigantic landscape film equal in terms of film to the great landscape paintings of Cézanne, Poussin, Corot, Monet, Matisse and in Canada the Group of Seven” is reverently described. It “has been hailed as a ‘masterpiece’” by Paul Virilio, the noted dromologist, no less. Three hours of edited footage from a camera installed somewhere north of Sept-Îles it has scandalously failed to catch on with the benighted art loving public. Iain and Ingrid Baxter’s humourless jokes as N. E. Thing Company “poked gentle fun at existing boundaries in order to improve the quality of life for themselves and others while inadvertently leaving a partial social document of their hybrid and polymorphic milieu.” These and Greg Curnoe’s literally hateful anti-American “Amendments to a Continental Refusal” have dated as much as platform shoes and disco. The Group of Seven, while obviously old, have not dated any more than Ruisdael. That’s what’s so annoying.

All these and the other newer, more correct, artists featured in Beyond Wilderness have received official patronage as Tom Thomson and the Group did. The 1993 Michael Snow Project of the Art Gallery of Ontario was as unmissable as the Group of Seven show three years later. Snow’s sometime wife Joyce Wieland got the full treatment from the National Gallery in 1971 and from the Art Gallery of Ontario in 1987. But they have not taken with the public.

Thomson and the Group are condemned as notoriously dead white males and Anglo-Saxon Protestants to boot. Three of them were actually born in Britain! On the basis of Lawren Harris’ reference to “the great North and its living whiteness” Scott Watson condemns them all as racists. The post-modernists detect a puritanical strain in their work, which is odd coming from people so puritanical themselves. They do not actually adjure us not to enjoy the Group’s paintings but their theoretical sensors are ever alert to the post-modern equivalents of sin, privileging, colonialism, Othering. They are the precisians of art. The moral tone is undermined by sneering, “Thomson and his cronies”, and cheap shots. John O’Brian reports the perfectly meaningless fact that A. Y. Jackson’s “Terre Sauvage” was painted in a studio above a bank branch.

The book takes a naively accepting line on multi-culturalism. In 1971 PET decreed multi-culturalism, and it was good. Questions of what exactly it means and what is good and what may be bad about it, which exercise academic colleagues of many of the contributors, are never addressed. The important thing is that the old painters were “white bread” and out they must go.

There is a strain of Marxisant paranoia in the book. Elite patrons and arts bureaucrats seem to conspire to foist the Group of Seven on the masses to sustain their colonialist capitalist ascendancy. Or am I guilty of a kind of intentionalist fallacy, thinking that people must mean what they do or do what they mean. It is conceded that “many members of the Group [might not] be altogether sympathetic to the ideological edifice that has been erected in their name.” But that will not get them off the hook. And the banker and Maecenas Sir Edmund Walker may have meant well in promoting Canadian art but he was an agent of capitalism and colonialism all the same.

Oddly, the only straightforward art appreciation in the book comes from Barry Lord’s silly Maoist The History of Painting in Canada: Toward a People’s Art. The compilers are rather condescending to Lord, whose old hat Marxism has been left behind by Marxisant post-moderns. Lord allowed that the Group represented a national bourgeoisie, progressive in its time, before it was overcome by the compradors of capitalist imperialism. He can therefore write unaffectedly that in J. E. H. Macdonald “Leaves in the Brook” “The rich colour and rapid movement are conveyed to us with all the freshness of the original autumn scene.”

Many of the pieces in Beyond Wilderness have been severely edited. The late Robert Stacey’s deeply informed and argued “The Myth - and Truth - of the True North” is cut off less than a third of the way through when his defence of the Group has barely started. Perhaps other contributions would be more insightful and persuasive if given in full. Most don’t get beyond striking a pose.

For their purposes the compilers and most of the contributors exaggerate the importance of the empty wilderness in Canadian art. You would not guess from their book that Lawren Harris painted many townscapes, which, dare I say, sell very well. The auction record for a Group of Seven painting is held by Harris’ “Pine Tree and Red House, Winter, City Painting II” at $2,875,000. It does have a tree and snow in it.

The callow prejudice that passes for insight in Beyond Wilderness is typified by the compilers bald statement that “The concept of northern development has decidedly negative connotations today...”. That would be leaving aside the fact that there would be no paper to print their book on without northern development and much less wealth to tax to keep them and their contributors and the new artists they promote.

Benedict Anderson, the New Left Marxist and leading critical theorist of nationalism attended a symposium that was part of the “OH! Canada Project” staged by the Art Gallery of Ontario as a defensive gesture at the time of the 1996 Group of Seven exhibition. Much thanks they got for it. An excerpt from Anderson’s paper is included in Beyond Wilderness. If the compilers and contributors are uncritically accepting of multi-culturalism they are completely at sea about nationalism. They want to reject Old Canada nationalism but the whole structure of support for the arts and academic study of Canada rests on a national ambition for Canada, the belief that a nation must have its art and self-understanding to the end that we can imagine our national community.

No doubt there is something to be written about the reasons for and the limitations of the Canadian attachment to the rough sublime of the North. As the compilers and contributors allow, the appeal of the paintings partly expresses and reflects Canadians’ consciousness of Canada’s vastness and complex relations to it. When it comes to the paintings they must be looked at closely to see their complexity and with respect for the achievement of Thomson and the Group and their contemporaries that won them their place ahead of their predecessors and still at the peak of Canada’s art. Marxisant reductions and processing by theory blind them to what the great public happily sees.