Apparently, the New York Times has cancelled April Fool’s Day. On whose authority? Did Trump order that? Governor Cuomo? It’s probably an illegal order. April Fool’s Day has never been a statutory holiday. It’s part of our freedom of expression as a culture. Since when can a newspaper dictate the cultural expression of the masses? Or Trump for that matter? What are they afraid of? Hackers taking over the world? I guess they could, but we desperately need a little levity. And, besides, I have never heard of such an order in Canada. We live in Canada.
But now we know that the COVID-19 Pandemic of 2020 (hopefully not extending into 2021) is not a joke. We are in it for a long haul. Who would have guessed that we would find ourselves in a period of cataclysmic historical change? I wonder if people felt this way at the beginning of World War One? Or on the fall of the stock market in 1929?? Or the start of World War Two? Maybe 9/11 is the closest in my generation. When we emerge from this pandemic, the world will not be the same. In an instant we will have pivoted to modernity.
“In these hard times,” to use my son Ben’s favourite phrase, we need to look for the bright spots. Already they are apparent.
In Canada at least, the tedious war between partisan interests, premiers and the federal government, and groups mobilized to pursue their own agendas, has ended. We are all in this together. We need each other. Our lives depend on good leadership and the cooperation of every citizen. This common experience will change our political culture and create a new climate of collaboration. We may be less wealthy, but we are already more cooperative and more nimble than we have been in decades.
Our Parliamentary system is working well. The government proposed to give itself the broadest possible powers necessary to fight an unprecedented epidemic. The Opposition challenged their draft legislation as over-reach. After hours of negotiation, but in historically fast time, all parties agreed to a compromise which appears to have given the government the powers it needed for a much shorter period. That Quebec was instrumental in proposing the compromise is a good thing for confederation. For all the last-minute drama, the parties did agree to an expedited process to approve the legislation in the House. And did you notice how quickly the Senate convened to approve the legislation? A refreshing reassurance that the Senate can move with expedition when necessary.
We are lucky to live in Canada. Our politicians of all stripes are rising to the challenge. Our civil service and public servants are professional and not gutted. We have a strong banking system and banks which owe a debt to the society which has sustained them. We have a public health care system and a social welfare infrastructure which provides the basis for speedy responses. We have the CBC which, for all its faults, is professional and brings the country together. We have business, cultural and community sectors which are innovative, energetic and willing to do what they can for the common good. For all our political and cultural diversity, we share common values and a sense of community.
We now know that we are living through a revolution. B.C. Provincial Health Officer Dr. Bonnie Henry noted that, in this age of modern technology, physical distancing need not mean social distancing. In World War One, young men and women left their families to fight abroad. Only the occasional letter or parcel arrived between family back home and the troops and medical personnel overseas. People lived in a state of dreaded anticipation. By World War Two, the telephone was commonplace at home, but less so across the water. Today, communications around the world are instantaneous over a proliferation of devices and apps. People (particularly those in the wealthy industrialized world of which we are a part) can see each other, conduct business, share common experiences of every possible kind, even write a book collaboratively with a host of experts located all around the continent.
Compare the spectacle of partisanship and dysfunction south of the border. Their response has been a horror show, and will lead to horrific results. Trump and the anti-science Republicans around him are doomed. What we are seeing is a massive human experiment, a comparison between how a pandemic should be fought versus how it is being fought in the USA. Canada’s going to come out looking good in this.
So while we do our part as troops in this environmental war, we are living through a total transformation of our society. It is our technological revolution. We are hurtling towards modernity in all sectors of our society and our lives. Governments are working collaboratively across the country (when did that happen last?) and with business and labour (both nationally and locally). Our public health care system will never be the same again. E-education is coming on a massive scale, whether we like it or not. Even the musty old legal system has stopped. When it gets going again, the old practices and culture that impeded reform will be swept away. Truckers and grocery staff are now recognized as essential workers. All sectors of the economy are joining in a communal effort.
Millions of people in lock-down and mandatory isolation are a captive audience who must find something to do to fill their time. In modern times, we are used to going out and about, shopping in the malls, using the gyms and the parks, visiting our friends and relatives in public spaces, restaurants, bars, discos. We are not used to being cooped up. How we deal with being housebound will be a major test. We need to find ways to divert ourselves in close quarters and in the physical presence of only our immediate family. It’s time to read the classics, take up an old or a new hobby, learn to play the piano, take up cooking, declutter the house. In the weeks ahead, we will talk about what people are doing, how they are doing it, and what resources are available to assist.
To survive, we are also going to need to learn about modern technology. Have you heard about Zoom? Two weeks ago, I knew nothing about it. Now I hear stock shares in Zoom are skyrocketing, and that it will sweep the world. Last Saturday, I was at my first Zoom gathering with my family. It was a hoot. I am meeting my close girlfriends for a Zoom date this coming Friday. Our next post will feature a Guest Blogger who will tell us how to set up Zoom and how to use it.
Did you pick up on the fact that Canada led the world in ensuring that the 2020 Olympics will be postponed until 2021? We had a great Winter Olympics in 2010. We know what hosting an Olympics entails. Good work to the Canadian Olympic Committee and the athletes who led that effort.
And did you notice that the Supreme Court of Canada has agreed to hear the appeal from the City of Toronto against Doug Ford’s arbitrary cut to the size of the Toronto City Council in the midst of the last municipal election? Maybe we will get some much-needed clarification of the modern law relating to the powers of municipal governments, and the standards of fairness that apply to the municipal context. This is going to be very useful.
It’s time to make lemonade out of lemons, everyone.
In the heat of an election campaign, after months of the SNC-Lavalin affair, it is easy to forget what the Liberal government has actually done in the past four years. I wrote two earlier posts on the subject which list what they did until December 2016. See those posts here and here.
As my contribution to the current election campaign, it is appropriate to review what the Liberals have done since 2016. What follows is not comprehensive, and benefits from my reading Aaron Wherry’s Promise And Peril: Justin Trudeau in Power (2019 HarperCollins), which I highly recommend.
From mid-January 2017 until late September 2018, the government was preoccupied with renegotiating the NAFTA agreement with the United States and Mexico. At first President Trump said that the relationship with Canada only needed “some tweaking.” By late April 2017, he was talking about “triggering a withdrawal.” Over the course of the negotiations, the US wanted to rebalance the trading relationship in favour of the US, impose a “rule of origin” which would require at least 50% of all auto parts to be produced in the USA, reduce the cap on autos exported from Canada to the US, do away with the Canadian supply management system which “unfairly” hurt American dairy farmers, include a sunset clause that would cause the agreement to expire after a certain time, and do away with the dispute resolution process.
In January 2017, Chrystia Freeland was made foreign affairs minister with responsibility for Canada-US Trade, including the negotiations about NAFTA. Born in rural Alberta of Ukrainian origin, now living in Toronto, she is an accomplished journalist who speaks five languages and has written extensively about income inequality. In June 2018, she was named Diplomat of the Year by Foreign Policy magazine.
In these negotiations, the government wanted the Americans to understand that Canada is “the signal largest market for US exports in all the world,” and that “at least a portion of their prosperity depended on (the existing) good trading relationship with Canada.” To do so, they decided that the best strategy was a united front at home. Cabinet ministers were assigned to chat up their counterparts in the Trump administration, the Congress, and in the states most dependent on Canadian trade (e.g.: Indiana, Wisconsin, Michigan, Ohio, Pennsylvania, Kentucky, Iowa, New York, Texas, California, and Florida). Freeland put together a bipartisan Advisory Council that included two former ministers of Stephen Harper’s cabinet (Rona Ambrose and James Moore), an advisor to NDP leader Jack Layton, the national chief of the Assembly of First Nations, and the president of the Canadian Labour Congress. Brian Mulroney offered to help, as did Jerry Dias, president of Unifor, the largest private-sector union in Canada. All spoke with whoever would meet with them in the United States.
The bipartisan lobbying proved successful. A Canadian suggestion that some percentage of each vehicle (ultimately 40-45%) should be made by workers earning at least $16 an hour, which favoured both Canadian and American workers, was adopted. The cap on cars that could be imported to the US from Canada was set at a level well beyond that ever attained by Canada previously. American dairy producers were given access to 3.59% of the Canadian market, slightly more than the 3.25% granted to the countries of the Trans-Pacific Partnership. The existing cultural exemption for Canada’s use of foreign ownership rules and target subsidies to protect domestic broadcast, news, and culture was maintained. Chapter 19, which allows for independent arbitration of any “unfair tariff,” was retained. The sunset suggestion was dropped.
In the fall of 2018, 59% of Canadians told polls that the Trudeau government had achieved “as much as possible” in the NAFTA negotiations. There was a general consensus in the media and among the non-partisan Advisory Committee that the Liberal government did the best job possible and should be commended both for what was accomplished and the manner in which it was done. Aaron Wherry, at p. 162, concluded that, “In conspicuously expending great effort in and around the United States, the Trudeau government at least insulated itself against any charge that it should have done more to swing the negotiations in Canada’s favour. That effort also showed a government that was otherwise not always on display: comprehensive, nimble, proactive and well communicated.”
In March 2018, President Trump announced tariffs of 25% on steel and 10% on aluminum imported into the United States “as a matter of national security” but exempted Canada and Mexico “pending the completion of NAFTA negotiations.” Two months later, he changed his mind and imposed similar tariffs on Canadian steel and aluminum, even as the NAFTA negotiations continued. Both Freeland and Trudeau denounced the tariffs. Although recognizing that tariffs only increased prices for consumers, the Canadian government had no choice but to respond in kind. Canadian tariffs imposed on a host of American products covered $16.6 billion in American exports. They were targeted at areas considered politically important, and were coordinated with similar tariffs imposed by Mexico and Europe. In Freeland’s words, this was “the strongest trade action Canada has taken in the postwar era.” By the fall of 2018, the Trudeau government also allocated $2.4 billion in support for Canadian steel and aluminum producers affected by the US tariffs.
Polls in 2018 indicated that 73% of Canadians were “extremely” or “very concerned” about “Donald Trump.” As of the fall of 2018, the American tariffs on steel and aluminum still remained in place and the new USMCA agreement was not yet ratified by the American Congress. Recognizing that the existing NAFTA agreement is still good for Canada, the Canadian government has taken the position that it will not ratify the new agreement until it is ratified by the US Congress. If the Congress delays or refuses to ratify it, NAFTA remains in place. In May 2019, the United States agreed to drop the steel and aluminum tariffs against Canada.
As for peacekeeping, the Liberal government finally sent a helicopter squadron to provide support for UN peacekeepers in Mali. Other Canadian forces were deployed in training missions in Latvia, Ukraine, Iraq, and the Middle East.
Wherry suggests that the “mantra of the Trudeau era… the middle class and those working hard to join it… [is] a statement of empathy and aspiration.” The Liberals focused on it initially and now all parties are doing the same. Under the Liberal government, federal income tax for those earning $200,000 or more increased from 29 to 33% while the rate for those earning between $45,000 and $90,000 dropped from 22% to 20.5%.
Of primary importance to the Liberal government was its reformed federal supports for families with children. The Canada Child Benefit transfers $23 billion to Canadian families on a progressive basis. A family with less than $30,000 income receives the maximum amount of $6,400 per child under the age of six. Families with higher earnings get smaller cheques; families earning $200,000 or more get nothing. In mid-July 2019, the Canada Child Benefit was indexed to inflation. Statistics Canada reported in February 2019 that the overall poverty rate in Canada declined to 9.5% in 2017 and that, as compared to 2015, 278,000 fewer children were living in poverty, in part due to the Canada Child Benefit payments. As Wherry indicates, this is “the most significant increase (of children out of poverty) ever accomplished by any government in Canada.” In the summer of 2017, the governor of the Bank of Canada also credited the Canada Child Benefit with being “highly stimulative” for the economy.
The Liberal government also put new funding into the Guaranteed Income Supplement and the Canada Workers Benefit, both of which were made automatic for eligible individuals who file a tax return. Student grants were increased for low and middle-income families. Money was also allocated for training for workers. New pay equity legislation has been enacted for employees under federal jurisdiction. The government also agreed with the provinces to spend $7.5 billion over eleven years on early learning and childcare.
The Trudeau government eliminated the Public Transit Tax Credit, the Children’s Fitness Tax Credit, the Children’s Arts Tax Credit and the Textbook Tax Credit. “Such micro-targeted… tax breaks were a hallmark of the Harper era, even as economists derided (them) as inefficient policies that generally rewarded people for behaviour that would have happened anyway.” (p. 83)
When the Conservatives left office in 2015, federal tax revenues as a share of GDP stood at 11.5%, a historic low and well below the pre-Harper average of 13.3%. Under Trudeau, tax revenues were set to settle at 12.4%, “exactly halfway between two different ideas of how much a federal government should properly need.” (p. 84)
Reflecting its priorities in spending, the Liberal government ran deficits of $17.8 billion in 2016-17, $14.9 billion in 2018-2019, and $19.8 billion in 2019-2020. It is argued that showing deficits in a period of economic growth is not a bad thing, and that the declining ratio of debt-to-GDP is an indication that federal finances are ultimately sustainable. In the mid-90s, the federal debt-to-GDP ratio reached 67%. Statistics Canada data as of March 2019 indicates that Canada’s overall debt-to-GDP ratio is now about 34%. To put this into context, it is interesting to note that, according to the US Bureau of Public Debt, April 17, 2019, the debt-to-GDP ratio in the United States in 2015 was 104.7% and in 2017 was 105.4%.
Wherry reports that efforts to move infrastructure funding have been slow. The Parliamentary Budget Office found that only $7.2 billion moved in the first two years of the Trudeau regime, half of what was projected. The impact on real GDP was only 0.1%. In the spring of 2019, the Trudeau government moved to fast-track $2.2 billion directly to municipalities to get around the several conservative provincial governments that were moving too slowly to match the federal funds. (p. 85)
The Liberal government passed legislation more slowly than did the Tories, but their new legislative process included wide consultation beforehand and extensive review by the newly independent Senate after. Between the fall of 2015 and the spring of 2019, the Senate amended seventeen government bills, sending them back to the House for review. This compared to only one bill sent back to the Tories in the last four years of their government.
The Liberal government has faced continuing controversy on the pipelines as the political and legal scene has changed. Trudeau killed the Northern Gateway pipeline that was to go to Kitimat and banned large tankers from transporting crude oil along the north coast of BC. With the election of Donald Trump, TransCanada abandoned its Energy East proposal, which would have carried oil to Quebec and New Brunswick, in the expectation that their Keystone XL pipeline in the United States would be approved. That left only the Kinder Morgan proposal to twin its existing pipeline from Edmonton to Burnaby on the BC coast which would triple the capacity of the line.
In November 2016, the Liberal government approved the Kinder Morgan proposal in exchange for Premier Rachel Notley’s reducing Alberta’s carbon emissions. Their intention was to mesh two ostensibly competing objectives: impose pricing on pollution to fight climate change in the long run, and build a pipeline to “create responsible and sustainable ways to get (Canadian) resources to market” in the short run. (p. 185). This delicate balance was undoubtedly difficult, guaranteed to concern environmentalists as much as it dissatisfied Albertans.
To win support of the BC government, the Trudeau government agreed to spend over $1.5 billion to improve marine safety and local spill responses and to protect the killer whale population. But, emerging from the May 2017 B.C. election, the NDP formed a government with the support of the Greens based on an agreement to oppose the Trans Mountain project. A year later, Kinder Morgan wanted to pull out of the pipeline project, and, to keep it going, the Liberal government bought the pipeline for $4.5 billion minus the capital gains.
In August 2018, the Federal Court of Appeal ruled that the National Energy Board had wrongly declined to consider the increase in tanker traffic related to the project and also that the Trudeau government’s consultations with the Indigenous were insufficient. In response to the court decision, the government ordered the National Energy Board to complete a review of marine impacts within twenty-two weeks, and appointed former Supreme Court Justice Frank Iacobucci to oversee new consultations with those Indigenous groups still opposed to the pipeline. The National Energy Board ultimately concluded that notwithstanding potential damage to the environment, twinning the pipeline was in the national interest and, in June 2019, the federal government again approved the Trans Mountain expansion project. The government committed that everything it earns from the pipeline will be invested in clean energy projects. Work is now underway on the pipeline, although legal appeals over the project continue.
In the fall of 2018, the Liberal government passed the Greenhouse Gas Pollution Pricing Act (GHGPPA) which required all provinces to place a minimum price of $20 per ton on GHG emissions by January 1, 2019. Provinces have the flexibility to create their own solutions to deal with GHG emissions in their jurisdiction. If they do so, the federal government will not intervene. If they fail to do so, the federal government will impose a price on pollution and provide an annual rebate to families living within their jurisdiction. Although economists agree that putting a price on carbon is the most efficient way to combat carbon emissions, the newly-elected Jason Kenny government in Alberta, the Doug Ford government in Ontario, other conservative provincial governments, and the federal Tories are fighting what they call “the carbon tax” both on the hustings and in the courts.
The Trudeau government dealt with housing in two ways. For potential home buyers, it introduced between 2016 and 2018 the mortgage stress test which set stricter standards that federally-regulated lenders are to apply to borrowers seeking mortgages. The object is to ensure that buyers could still afford to carry their mortgages in the event that interest rates were to rise. In 2019 the Liberals also announced a $55 billion, ten-year National Housing Strategy led by the National Mortgage and Housing Corporation for renters. After several decades of little market attention to rental housing, the object is to create up to 125,000 affordable housing units and refurbish more than 300,000 public housing units.
With respect to the Indigenous community, the Trudeau government has taken initial steps to implement the recommendations of the Truth and Reconciliation Commission. Long-term water advisories have been lifted in 87 First Nation communities as of August 2019. The government has also committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which includes provisions that protect Indigenous peoples from harmful and unwanted encroachment on their lands and resources without their free, prior, and informed consent. Putting that commitment into practice has been more difficult, leading to criticism of how these standards were not applied to the Trans Mountain project and to their support of the Muskrat Falls project in Labrador. In the spring of 2019, they enacted legislation providing support to Indigenous peoples trying to protect their languages, and also returning jurisdiction for child welfare services to First Nations communities.
It strikes me that the Trudeau government has done a great deal since it in came into office, notwithstanding drastically changing conditions both abroad and at home. The election of Donald Trump threatened the most important relationship Canada has with any other country. The Trudeau government has negotiated that to their credit. The cooperation which characterized federal-provincial relations in the first couple years of the Trudeau mandate has disappeared. Whose fault is that? Promoting change is not easy, takes time, and the results can be insufficient and even messy. I’m satisfied, however, that activism at the federal level on the various issues promoted by the Trudeau government is preferable to none at all. It will be up to Canadians to decide.
Further to my post on Thursday, see the excellent article by Adam Dodek, Dean of the Common Law section of the University of Ottawa Faculty of Law. The Globe and Mail published the article entitled “The impossible position: Canada’s attorney-general cannot be our justice minister” on February 22, 2019.
Dean Dodek provides the history of the existing two-hatted position, the background necessary to understand the context of the current “crisis,” and the need for Canada to adopt a new governmental structure like that in the United Kingdom. What he has to say accords with my own thoughts on this matter
In my view, at this stage in the ongoing saga, the Liberals could achieve the “solution” they need, both practically and politically, if they took advantage of the “new kind of politics” Jody Wilson-Raybould has brought to them, embraced her within the Liberal caucus where she properly belongs pending re-admission to Cabinet, and separated the Department of Justice and the Attorney-General, as both Wilson-Raybould and Dodek have recommended.
That would be a beneficial outcome of this very messy affair. It would cut through the ever-expanding witness list before the Justice Committee which, while fascinating for the inside dope it offers on how government works, is a colossal waste of time and money and cannot lead to a definitive finding, one way or the other. It would also undercut the partisan harping that the Opposition parties would undoubtedly like to continue until Election Day.
Once that initiative were taken, focus could shift to the ongoing court proceedings, and to the reports of the Justice Committee and the Ethics Commissioner when they are released. There could also be a calm discussion of the pros and cons of Deferred Prosecution Agreements in general, and of whether SNC-Lavalin should qualify for such an Agreement at some stage. Anything to reduce the inter-regional bad-mouthing, stereotypical name-calling, and credibility-bashing we’ve seen in recent weeks.
Such a reform would be a positive show of leadership on Trudeau’s part, and reverse the precipitous drop in his popularity caused by this affair. I, for one, don’t want the next federal election run by the Opposition on an “anti-Trudeau” campaign in the same vein as the “anti-Wynne” blitz which destroyed the Liberals in Ontario. There, the Tories ran a dubious leader with little political experience, no interest in policy, and offering no platform (except that offered by the social conservatives). Still, they won a majority government and defeated one of the most intelligent and policy-wise politicians ever seen in Canada. Trudeau may not be a Kathleen Wynne but his Cabinet has been replete with intelligent and talented politicians, such as Jody Wilson-Raybould, Chrystia Freeland and Jane Philpott. The country does not need a repeat of the Ontario experience at the federal level.
Former federal Minister of Justice and Attorney-General, Jody Wilson-Raybould, testified for nearly four hours before the Parliamentary Justice Committee yesterday. Her testimony was riveting, thoughtful, precise, backed up by notes, her credibility impeccable, and her presence a paragon of integrity. Dramatic, yes? But “devastating to the Liberals,” no.
She related several instances over the five-month period between September 2018 and January 2019 when Prime Minister Trudeau, senior members of the PMO, and the civil service put what she described as “inappropriate pressure” on her and her staff, apparently in an effort to have her “change her mind” about supporting the Director of Public Prosecutions in her criminal charges against SNC-Lavalin for bribery in Libya, and her refusal to offer them a DPA (“deferrred prosecution agreement”) to settle the matter. In her view, their actions amounted to “a consistent and sustained effort to politically interfere” with JWR’s role as an independent Attorney-General.
JWR admitted that what happened did not rise to the level of criminal activity but, in her view, “it was inappropriate” and, but for her refusal to change her mind, could have amounted to a derogation from “the rule of law” in Canada. She went on to testify that she thought her removal from her Cabinet position as Minister of Justice and her role as Attorney-General was due directly to the stand she had taken on SNC-Lavalin.
If you have not seen her testimony, do not rely on press reports. Watch it yourself on the internet.
The opposition is having a field day. Leader of the Opposition, Andrew Scheer, called for the PM to resign and for the RCMP to start a criminal investigation. NDP leader, Jagmeet Singh, insisted on a full-fledged Judicial Commission of Inquiry. The Justice Committee wants the PM to extend the government’s waiver of cabinet confidence and solicitor-client privilege so that JWR can return and testify about what happened between her and the PM after she was demoted to Minister of Veteran Affairs. The Committee and the media agree that everyone who had contact with JWR and her staff must testify before the Committee and the Ethics Commissioner so that “Canadians can know the facts.”
In his press conference after JWR’s testimony, Prime Minister Trudeau forcefully denied that he and his staff did anything wrong. He totally rejected JWR’s characterization of what occurred. He agreed that his government was concerned about the consequences of the ongoing SNC-Lavalin prosecution on “jobs,” and on innocent employees, creditors and investors of the company. But he insisted that the decision about the criminal prosecution was for the Attorney General to make, and that, at no time, did anyone ever direct her otherwise. While respecting the role of the Attorney General and the primacy of “the rule of law,” he acknowledged, as JWR said, that his government wanted “a solution” to the SNC-Lavalin problem.
We’ve had three weeks of political turmoil in Ottawa and unprecedented testimony about how government works from the inside. Despite the drama, no one in the Justice Committee, nor in the national media commenting on the event later, picked up on the primary lesson evident from all that has occurred.
At the end of her testimony, former Attorney General Jody Wilson Raybould suggested that the dual role of Minister of Justice and Attorney General which exists in Canada should be divided, as it is in Britain. There, the Minister of Justice sits as a member of Cabinet, concerned with policy development and political considerations. The Attorney General is an independent office, does not sit in Cabinet, and is shielded from political influence by the separate structure created by the express division of responsibilities for policy development and for prosecutions. She suggested that such a structure would be useful for the Canadian government to consider. I totally agree.
In my view, this entire episode boils down to different views on the role of Canada’s two-hatted Minister of Justice/Attorney General. The dual role requires different approaches and different actions. Inherent in the dual role is the potential for conflict. Positing both positions in the person of a single individual may well place her into an impossible conflict, as it apparently did with Judy Wilson-Raybould.
Everyone knew that the AG supported her DPP, and there is no evidence that anyone asked her to countermand her DPP and/or take over the prosecution (although in law she had the power to do that). When, in October, SNC-Lavalin received formal notice of the DPP’s decision not to offer them a DPA, the company immediately started a legal action challenging that decision. That legal action was the first such action on the new law and was pending at all relevant times. The focus of this litigation was on three key questions: could the courts review the exercise of her discretion? if so, what criteria did she use? And did she apply the criteria correctly? All are important questions on how the legislation is to work in the future.
That the matter was before the courts was useful for the government. As I have argued previously, this Liberal government doesn’t like to be labelled “soft on crime” and prefers to have the courts do their dirty work for them.
But while the matter proceeded before the courts, the Liberal government wanted its constituents to know that they had not forgotten the matter; hence the search “for a solution.” JWR admits that all the officials and staffers who pressured her were looking “for a solution.” What kind of “solution”? Since she said her refusal to interfere with the ongoing litigation was clear as early as mid-September, what kind of “solution” were the PM’s politicos after? I interpret this to mean alternative legislative or regulatory means which could mitigate the damage on SNC-Lavalin in the event of a conviction. An amendment to the mandatory ten-year ban on no-government contracts in the event of a conviction is one possible option; another may be providing a discretion as to what length of ban would apply.
As Minister of Justice, JWR was responsible for policy development related to the Criminal Code. In that role, “jobs” and the interests of “employees, investors, and creditors” would be legitimate and major concerns, and the PM, other officials, and staffers could well want JWR to use the resources available in the Department of Justice to formulate a proposed alternative solution. These were matters that could have been dealt with in the original legislation. For some reason unknown to us, that did not occur and now the government was faced with correcting the lacuna.
Apparently, JWR, wearing her Attorney-General hat, felt uncomfortable with discussion and actions that properly fell to her in her role as Minister of Justice. That she raised the need to separate the two roles before the Justice Committee indicates the dilemma and helps explain the context of what has occurred. For all the shouting from the opposition and the black ink in the media, the Liberals have learned a valuable lesson. I am confident that they have the wisdom and the experience to go forward with the structural solution that stares them in the face and could well resolve the problem.
Dear Mr. Crawley, Publisher and CEO of the Globe and Mail
Thank you for your “Dear Reader” letter in today’s Globe and Mail (Saturday, December 9, 2017).
I appreciate your explaining the extraordinary circumstances which afflicted your première edition of the new GM. You and your staff must have been horribly disappointed. That the edition which so attracted my ire was a “one of” is good to know. I am also interested to learn of the efforts made to improve the journalistic standards of the GM, and the design goals you seek to achieve.
Two caveats. I would have more impressed if you had not printed your “Dear Reader” piece in such a light type face. I found it very hard to read. Is your relationship with your readers at this very important time of your transition not as important as the key news stories you choose to report using darker type?
You indicated that you have “bumped up the size of the type in your sports scores and stock listings.” I find your choices for immediate action very telling. Am I wrong to assume, in the reality of our contemporary world, that sports scores and stock listings are still of interest primarily to men? And that Bay Street is your most important lobbyist?
It’s not the justified lines that matter. For my demographic, it’s the fainter typeface. Implicit in your choice of a lighter or darker type is your assumption about what is important and what is not. When I have to strain to read what you publish, my reaction is that you consider that particular item less important to your readers. Your assumptions may not coincide with mine.
I look forward to continuing my “feedback, interest and support” in the future. Just don’t make it so difficult that I don’t enjoy it. At my age, if it’s not fun, I don’t do it. As Robyn Doolittle’s front-page story on “The Unfounded Effect” is in a darker type, I should have no problem reading and analyzing that for a future post.
The Effervescent Bubble
For several days they led us on. They promised a “new Globe and Mail,” presumably with new content, format and style that would befit Canada’s national newspaper. When they began to put out the promos, I was intrigued. Other news media are whining the blues. What was the Globe and Mail going to do to meet the current “crisis in journalism” and keep us reading from coast to coast?
When the first of “the new” publication arrived last week, I was horrified. What have they done? Who do they think they are publishing for? I am 73 years old, read three newspapers every day, and consider myself relatively well-informed about Canadian politics and public life. Most of the young people I know no longer read newspapers in hard copy. If they read any newspaper at all, it’s on the internet.
We pre-baby boomers, and baby boomers, too, are accustomed to our old habits, welcome the arrival of the newspaper on our doorstep (or outside our hotel room) each morning, and enjoy the luxury of being able to read it through with our coffee, at leisure. We may not represent the far distant future but, for the moment, and perhaps because of inertia, we may well be the primary demographic which continues to have all-week newspaper subscriptions in hard copy.
Now I can’t even read the Globe and Mail. Literally, I can’t read it. And I am not the only one. My husband and several friends have had the same reaction.
In the interests of what I assume is saving money, they have made the newspaper smaller in size, and apparently changed the font and/or lightened the type. The smaller size I can live with; it’s easier to fold into my purse or briefcase to take on public transit. The new font and/or typeface, however, is positively illegible. It gives me a headache to look at it, and more of a headache to read.
In an age when everyone (and I mean most everyone, including us old duffers) is using mobile devices and iPads with multiple fonts and expandable print capacities, it is positively counter-intuitive that a major newspaper seeking to expand its readership would go to print with what can only be considered a “reader-adverse” font and/or typeface. Who chose it? Someone under 60, I bet.
Since I started writing my blog, I mine the Globe and Mail, National Post and the Toronto Star (when in Toronto), and the Vancouver Sun (when in Vancouver) for potential topics of interest for a post. It takes up time, but I try to go through each newspaper daily. Each has its strengths and weaknesses. And apart from different perspectives, I like to pick up on quirky articles which alert me to something that I knew nothing about before.
In the past, I always went to the Globe and Mail first. Why? Because it’s “the national newspaper,” because I know people who write for it, and, although I do not always agree with its editorial perspective, at least I can expect competent coverage of major issues.
Now, it is too painful to read. As of last week, I now start with the National Post, or the Toronto Star, skim their coverage, and then pick up the Globe. But it’s so difficult to read beyond the headlines that I tend not to read it in detail. I make no comment on the new organization and content of the “new Globe and Mail” because the new font and/or typeface have deterred me from reading it further.
It has occurred to me that perhaps the powers that be at the Globe and Mail really do want to drive us all onto the internet. Make your hard copy inaccessible and subscribers will give up.
When the eleventh hour of the eleventh day of the eleventh month finally reached the west coast this morning, Marine Drive was closed and a huge crowd of folk was assembled in front of the arch in Memorial Park. It is located across the street from the West Vancouver Memorial Library which opened on November 11th, 1950, as a living war memorial to promote literacy and equal access to education for all. The annual Remembrance Day ceremony is organized by the local branch of the Canadian Legion, but it is fitting that Jenny Benedict, the Director of Library Services, was the “Master of Ceremonies.”
Just before eleven, the West Vancouver Youth Band played and the crowd clapped as an honour guard of flag-bearers led into formation a parade of veterans, alarmingly few remaining it seems, and ranks of local cadets, first responders, scouts, guides and cubs. Then, as four Harvard training aircraft flew overhead, there was the Last Post, two minutes of silence, the Lament and the Rouse. It is always stirring when so many people of all ages, children and dogs among them, stand in perfect silence to mark the ritual of remembrance. Whenever I hear the familiar words of In Flanders Fields, recited as they were today by two students, I think of the thousands at home and abroad who serve in our military and related services. Out of sight, they are not out of mind. Never more so than on November 11th.
At the end of the ceremony, the local Legion, the West Vancouver Lawn Bowling Club, and the Friends of the Library invited everyone to Open Houses. I went to the Library where the Book of Remembrance was on display, as were examples of the Research to Remember Project which accumulated documentation relating to all local participants in the two World Wars. With coffee and cookies at hand, the Dundarave Players led everyone in a sing-along of First World War songs. We sang the repertoire: The White Cliffs of Dover, It’s Long Way to Tipperary, Lili Marlene, Pack Up Your Troubles, There’s a Long Long Trail, A Nightingale Sang in Berkeley Square, and on and on. It was spirited, sentimental, and great fun. It occurred to me that the days of such sing-songs are likely numbered. Even without the words on the overheads, the crowd in the library knew the words and the tunes; few young people and new Canadians will know them now, or in the future.
To end the day, I attended “One Last Song,” the 25th Annual Remembrance Day concert of the seventy-voice Chor Leoni Men’s Choir. Directed by Erick Lichte and accompanied by pianist Ken Cormier, they sang a rich collection of music, one piece after another, interspersed only with poetry readings from Siegfried Sassoon, Rudyard Kipling, and others. From the Scottish traditional “Will you go to Flanders?” and “Un Canadian errant,” through Alberta Celtic song-writer Lizzy Hoyt’s “Vimy Ridge,” adapted for choir and accompanied by a guitar, to a première performance of a new tune to “In Flanders Fields.” Then, Mendelssohn’s “Beati Mortui,” Kenneth Jennings’ music to the Dylan Thomas text “And Death Shall Have No Dominion,” Siegfried Sassoon’s text “Armistice: 1918 (Everyone Sang).” The concert concluded with the Last Post, two minutes of silence, and the entire congregation joining in the singing of “Kontakion,” with text from the Eastern Orthodox Memorial Liturgy. There was not an empty seat in the large West Vancouver United Church where the concert took place and few left unmoved by what we had heard. Such music seems so very right on Remembrance Day.
It’s Canada Day tomorrow and time to get into the mood.
How better to do so than to join in song? The music video, “Mon cher Canada/This is My Canada,” launched earlier this month has circulated via email and on social media. Acadian singer-songwriter Jeanette Arsenault wrote the stirring song 25 years ago. New Brunswick songwriter Don Coleman produced this new rendition with the help of a bevy of well-known Canadian music talent including David Clayton Thomas (formerly of Blood, Sweat and Tears), Liberty Silver, The Good Brothers, and Acadian vocalist Wilfred LeBouthillier. I particularly liked the multicultural and highly energetic Young Singers group led by Anna Lynn Murphy and the interjections of twelve-year-old Indigenous dancer, Malakai Daybutch. Apart from the music, splendid photographs from all over the country evoke the beauty of our nation. My only disappointment was that the images did not portray any of the rich diversity and energy of our major cities. Maybe there is only so much that you can do with a limited budget raised from 400 donors in a GoFundMe campaign. As for “Mon cher Canada” becoming our second national song? I applaud the initiative and am happy to have it better known across the country. Take a listen for yourself, here.
The column below, written by former managing editor of the Globe and Mail Geoffrey Stevens, and published in the Waterloo Region Record on June 26, 2017, will evoke rich memories for boomers and pre-boomers. Newcomers to the country and those under 50 may appreciate a bit of history to fill in the context for what we celebrate today. In 1967, we had no idea what would happen within three years and where that would lead. We all went to Montreal for Expo 67, fell in love with Quebec and les Québécois, and then were more than happy to buy into official bilingualism and biculturalism. No one would ever have anticipated the existential threat of the country breaking up which arose with the Second Quebec Referendum in October 1995, nor the constitutional wrangling that continued thereafter. In my view, those years of turmoil were part of the adolescence of our country as it struggled to forge the unique identity that we now take for granted. Quebec has moved on, Canada has moved on, and today the challenge is to reconcile with our Indigenous people and integrate our latest multicultural newcomers. We are now a mature nation with so much to celebrate and to offer the rest of the world. In difficult times when the world is changing before our eyes, may we in Canada feel yet again the optimism and enthusiasm that prevailed in 1967. Canadians are blessed beyond belief. May our certainty of that give us what we need to pursue the future with energy, perseverance and grace.
“Remembering the best birthday bash ever – Canada Day 1967
“The sesquicentennial celebrations marking Canada’s 150 years as a nation on Saturday will feature the biggest birthday bash on Parliament Hill since the centennial in 1967. It will be a great party – and, with a budget of $2.5 million, it should be.
“But no matter how splendid the weather, how spectacular the entertainment, how dramatic the air show, or how eloquent the speeches, this year’s event will not hold a candle to the bash 50 years ago.
Fifty years? Can it be?
“Although I have tried to con my children into believing that I, like the late Jack Benny, am a mere 39 years old, I must confess I was there on Parliament Hill on that day, July 1, 1967, 50 years ago, covering the event for the Globe and Mail.
“The Queen was there. So was the new governor general, Roland Michener, and the soon-to-retire prime minister, Lester Pearson. Although I don’t remember a word any of them said that day, I do remember the Queen cutting the gigantic birthday cake, which rose to a height of 30 feet (the metric system not having come to Canada yet). I remember the bright new Canadian flag fluttering atop the Peace Tower and the centennial flame burning brightly in front of the Centre Block.
“But mostly I remember the crowd, both for its size – there had to be at least 100,000 people from every corner of Canada on the Hill that day – and for its excitement. There was a powerful sense that they were taking part in a historic moment in the life of their country.
“Historians would say later that 1967 was a watershed year, the year Canada emerged as a modern nation, the year we shed the vestiges of a colonial past and realized we had become a grownup independent country.
“It was an emotional year – the year Bobby Gimby’s “CA-NA-DA” became our unofficial anthem, the year that Expo brought the world to our shores, and the year our prime minister sent the president of France, Charles de Gaulle, packing, telling him he was not welcome in Canada after he shouted the separatist slogan, “Vive le Québec libre,” from a balcony at Montreal City Hall.
“Trouble in Quebec was on the horizon in 1967. Terrorist bombings had begun the year before and five bombs went off on New Year`s Day, 1967. Before the year was over, René Lévesque, a charismatic former journalist, would leave the Quebec Liberals to form his own sovereignist party. Within three years, the Front de libération du Québec would kidnap British Trade Commissioner James Cross and murder Quebec’s Labour Minister Pierre Laporte, and the War Measures Act would be invoked in Quebec. Three years after that, Lévesque and his separatist Parti Québécois would be elected in Quebec.
“The year 1967 was also the year when the Toronto Maple Leafs won the Stanley Cup. It would be the last Stanley for the Leafs for 50 years, and counting, although the crowd on Parliament Hill on that July 1 had no way of foreseeing this dismal fact.
“The mood that day 50 years ago was one of optimism and enthusiasm. There was a sense that anything was possible, that a new era was dawning. In terms of political leadership, it was true. Two months after the bash on the Hill, the Progressive Conservatives dumped their leader and former prime minister, John Diefenbaker, and replaced him with Robert Stanfield, the premier of Nova Scotia. Nine months after that, Pearson was gone and in his place the Liberals chose Pierre Trudeau, a swinging bachelor who made lady voters swoon and their significant others fume.
“He immediately called an election and swept to victory in June 1968. The “Trudeaumania election,” as it became known, was the most exciting election I ever covered. Yes I was there, on the planes and press buses, and one day I’ll tell my grandchildren all about it, even though I am still only 39.”
***** This column is reprinted here with the kind permission of Mr. Stevens.
Federal Minister of Justice Wilson-Raybould is meeting with her provincial counterparts next week to discuss delay in the criminal courts. I am a fully retired judge of the Ontario Court of Justice, appointed in the wake of a similar Supreme Court induced crisis on the same issue over twenty-five years ago (in the case of R. v. Askov). During my twenty-year career on the bench, I spent most of my volunteer time as a judge on the issue of delay. And still the problem remains. I have three systemic suggestions to throw into the discussion.
1. Download more “hybrid” criminal offences from the Superior Court to the provincial courts. During the 1990s, the federal government amended the Criminal Code to increase the maximum sentence possible for summary conviction on “hybrid” offences. These are offences where the crown has a choice to proceed by the more complex indictable route or by the simpler summary conviction procedure. Before, the highest sentence on summary conviction was six months in custody. When the amendment “supersized” the cap on sentence for these hybrid offences to a potential eighteen months in custody, crown attorneys assessed the facts of particular cases in light of the higher penalty and, if appropriate, often elected to go ahead by a summary trial in the provincial court. That meant that trials were held more quickly, and the accused had no right to a preliminary hearing. The result was that thousands of cases were downloaded from the Superior Court to the provincial courts, even high-profile criminal trials like those of Jian Ghomeshi and Mike Duffy. That downloading was successful. If the maximum sentence for summary conviction “hybrid” offences were raised again so that it could incorporate more aggravating facts, I suspect that many more cases would proceed in the lower courts.
2. Divert simple drinking and driving cases to an administrative enforcement procedure such as British Columbia implemented in 2010, which was upheld, with some changes, by the Supreme Court of Canada in 2015. When I sat in the Ontario Court of Justice in Brampton, post-Askov, drinking and driving offences made up 45% of our caseload. Even today, drinking and driving cases are the most hotly litigated of charges, and take months to process through the criminal courts. In British Columbia, the Automatic Roadside Prohibition (ARP) scheme provides that drivers who register a “fail” on a roadside breath test can have their licenses suspended immediately for up to 90 days, those who register a “warn” can have shorter suspensions of between three and 30 days, their cars can be impounded, a fine and mandatory remedial education imposed. Apparently, deaths caused by drinking and driving in B.C. have decreased since the administrative enforcement scheme was put in place, and criminal prosecutions of simple drinking and driving charges are down by about 85%. Where there are aggravating factors, a high roadside breath test reading, a prior record of administrative suspensions or criminal convictions, driving while disqualified, or any injury to persons or property, the criminal process should be invoked and sanctions increased. Apparently even MADD Canada is in favour of the B.C. model and has been lobbying the Ontario government to implement it. Now that driving while impaired by marijuana is being added to the Code, a rethink on how enforcement is to be made effective without swamping the criminal courts is imperative.
3. Give the Chief Justice of the provincial courts direct access to the Court of Appeal by enacting a power to “state a case.” Prior to the mid-1990s, Ontario judges had statutory authority to put a factual case to the Court of Appeal for an expedited decision on a legal issue. That power was taken away, a change which in my view has proven dysfunctional. New laws come first to lower trial court judges who have a duty to apply them to the fact situations before them. Sometimes those fact situations are clear and uncontested. The only issue is whether the fact situation involves a breach of the Charter, or some narrow legal issue which needs a definitive resolution by the highest court authority, as speedily as possible.
I had such a case in 2000. It was a simple police stop on the street, a conversation between two officers and a young man, a delay while the police did a computer check on his identity, and then an arrest on unrelated charges. When the charges came before me for trial, both counsel agreed on the facts and the only issue was whether or not the stop amounted to “a detention” which had Charter consequences. As a lower court decision, my written judgment, although published in the national criminal reports and argued repeatedly, had no value as a precedent within the hierarchical structure of our court system. But my case crystallized the issue as a systemic matter. With no power to state a case for an expedited definitive decision from the Ontario Court of Appeal, the issue of what constitutes a detention on the street churned around the lower courts until finally, nine years later, the Supreme Court of Canada decided the issue. Nine years is a long time. Too long.
That case had to do with detention on the streets. There were other issues: whether a new drinking and driving law had retrospective application to cases currently before the courts? whether the crown had a Charter duty to disclose repair records of Intoxilyzer machines? Both technical legal issues which, in my view, caused what I can only consider constipation in the lower courts. The enema of an expedited Court of Appeal decision was needed.
The existing criminal appellate process in Canada proceeds in a non-systemic, random manner, totally dependent on whether the crown or a defendant has any interest in an appeal. For many pragmatic reasons, neither may want to appeal a particular case, and the issue churns on, wasting endless hours of redundant argument in the lower trial courts. This ad hoc, leisurely and languid appeal process contributes considerably to delay in the courts. If speedy justice is in the public interest, then the Chief Justice of the provincial court has a systemic interest in cutting through the verbiage and getting some authoritative direction on these types of issues on an expedited basis. For this reason, the Chief Justice should be able to “state a case” for a definitive decision from the Court of Appeal. The faster the provincial Courts of Appeal deal with the issues, the faster they will reach the Supreme Court of Canada if necessary, and the faster the lower courts will know how to deal with the trials before them. What’s the downside?
Recently the CIBC converted their branch at the corner of Grace and College into a new “Banking Centre.” They did away with all the tellers, leaving only an ATM, a bevy of laptop computers scattered among comfortable chairs, and a couple of “advisors” who, apparently, are to educate the locals on computer banking, resolve any issues that arise, and presumably discuss mortgages and other banking services financially helpful to the institution. For decades, this had been my local bank, always handy walking home from the West End Y, and I was devastated.
Truth be told, I only used the branch tellers to get the rolls of loonies and toonies I need for city parking. I’ve never trusted using a credit card for street parking fees. I’ve always worried that after parking the car the kiosk would reject my card or, worse still, would steal the data on the card in some potential scam.
ATMs do not dispense coins. The closest alternative full-service CIBC branch is at Dundas and Ossington. When I went there one morning at opening time, I put my remaining 50 cents into a parking kiosk for the one available parking spot in the area. Anticipating a quick in and out, I found myself in a long line up with no teller. Apparently she was in the washroom. When she finally appeared, she had to deal with a line up of at least ten customers waiting impatiently for her return. More than ten minutes later, she was still dealing with the first in line. Other bank employees aware of the situation chose to ignore it. I made some complaints which, in retrospect, I should have resisted. Soon I had no choice but to abandon my place in the line and rescue my car from any potential early morning green hornet. It was only later that I remembered that the all-pervasive security cameras would have recorded me as an irate customer. Although I am generally known as a patient person, “customer service” like this at our coddled national banks brings out the worst in me.
That very morning, a friend told me about Toronto’s new Green P Parking App. After a couple of false starts during my early experiments with the system, I now fully appreciate the wonder of this new Parking App.
This is how it works. You download the app to your smart phone, enter your email and vehicle licence number to secure your registration, and then look for a parking kiosk on the street or in a Green P parking lot which has a four-digit number prominently displayed on the white decal on the side. The first time you use the system, you will be asked for your credit card information and for a deposit of $20.00. Presumably, when that $20.00 is exhausted, you would authorize another. In the meantime, once you have found a parking spot, you enter the identification number for the nearby kiosk and indicate the vehicle you are parking (or the license number of a second vehicle), and choose the amount of time you want. The app confirms the location and time, deducts the payment, and, if you like, sends a receipt to your email address. Apparently, the paper receipts we used to place on the dashboard are obsolete. Green hornets looking for malingerers will check your licence plate digitally to confirm timely payment.
As an added feature, the app counts down the time, alerts you when time is running out, and gives the option of extending the time digitally from wherever you might be. On a recent shopping trip, I extended twice, for 75 cents each time, from the store where I was happily browsing. I eventually returned to my car secure in the knowledge that there would be no yellow ticket on my windshield. Updated receipts arrived by email.
When I went for dinner one night last week, I found a spot on College Street right beside the restaurant at precisely 6:31 p.m. I pulled out the app expecting to pay until at least 9:00 p.m. But no. The app told me that no parking fee was payable at that hour, and that I should check the signs to be sure. I checked the sign and it was true. Parking was payable 8:00 a.m. to 3:30 p.m., prohibited 3:30 to 6:30 p.m., and then presumably parking was free. Pretty slick, I’d say. The app also allows you to type in an address and find the nearest Green P site, renew monthly permits, and pay courtesy charges, although I haven’t yet tested these features.
Best of all from my perspective, I am now liberated from any further need for live contact with any branch of my bank. Maybe forever.
Sean Fine, the Justice writer for the Globe and Mail, is getting more and more space. Rightfully so. Apart from high-profile criminal cases or civil law suits which titillate the public imagination, intelligent writing on the legal system and how courts actually work is lamentably lacking in Canadian media. Sean Fine has been the outstanding exception. He is generally topical, reliable, and comprehensive. Following Sean Fine in the Globe in print, on their website often the day before, or on Twitter, is a good way to keep abreast of legal issues, particularly on the national scene. His recent writing illustrates the point.
Introducing the Judges of the Supreme Court of Canada
His “Canada’s bench strength: Meet the judges, new and old, of the Supreme Court” published earlier this month is a novel introduction to the Supremes. His readily digested summary of each Supreme Court Justice describes their age, family and legal background, education, who appointed them, their role on the court, a couple of their leading decisions, and their personal characteristics. It’s a good thumbnail sketch of the most important jurists in Canada whose decisions affect us all.
Profile of Justice Malcolm Rowe
On Saturday, Sean Fine wrote a very informative profile of Supreme Court of Canada nominee Malcolm Rowe, entitled “Rowe driven to succeed.” Rowe’s parents were from fishing villages, and then moved to St. John’s to better educate their children. They endowed him with a vigorous work ethic and a rigorous intellect. Apparently, whatever he has pursued as a professional and as a sportsman, adept at kayaking, skiing and sailing, he has done with focused determination to do well. He has worked to perfect his French and has more than surpassed the basic requirement for functional bilingualism. His knowledge of his province, his people and the country is deep, sensitive and genuine.
Hearings on his Nomination
The new SCC-appointment process requires two hearings before the Prime Minister confirms the nomination. The first is for the government and the Chair of the Advisory Committee to explain to the Parliamentary Justice Committee how the process worked and why Justice Rowe was nominated. The second is for the nominee to “meet” Parliament and answer questions about his or her legal experience and philosophy.
On Tuesday, in his article “Ottawa stands by nationwide Supreme Court process,“ Fine describes the first hearing. Advisory Committee Chair Kim Campbell reported that 31 candidates applied for the vacancy, slightly less than half were women, the committee interviewed ten, some were not functionally bilingual (a criterion imposed by the new procedure). Justice Minister Wilson-Raybould defended the government’s decision to conduct a nationwide search even though the vacancy came from the Maritimes. She indicated “the process requires some candidates on the shortlist to be from Atlantic Canada.” The aim of the government, she said, was to create a court which “reflects the faces and voices of Canada” and “the values of Canadians today.”
Fine’s report focuses on the controversy which arose after the new appointment process was made public in August. What is the nature of the diversity the court should reflect? The geographic diversity reflected by the tradition of having one judge from the Maritimes? Or the ethnic, racial and gender diversity which would include indigenous people and multicultural contemporary Canada? The Commons voted 270-0 “urging the government to respect the ‘custom’ of regional representation, and a lawyers’ group filed a court challenge to any attempt to go outside the region.”
My reading of the process in August did not pick up on any specific requirement that the shortlist include nominees from the region with the vacancy. It was clear, however, that the government intended the process to be evaluated and that it could well be changed. I suspect that the political furor since August has caused the Justice Minister to insert “the regional factor” on the fly. That’s not a bad thing.
In the result, it seems that Justice Rowe is, as the Minister said, “… an incredible jurist of the highest quality and the best candidate.” As for the nationwide process, I think it a very intelligent approach which will allow the feds to find future Supremes from across the country, and enable future candidates to perfect their language skills. Creating an open-ended pool will make future choices more expeditious.
Yesterday, Fine’s article “Justice Rowe put to the test in nomination hearing“ describes the first-ever nomination hearing conducted under the new process. The hearing was held before 14 MPs and Senators, each given five minutes to ask questions of Justice Rowe, and 150 students at the University of Ottawa. A brilliant format. Efficient, respectful and, by including an audience of students, mindful of the future. (As an aside, I wonder if Trudeau as the Minister of Youth suggested the venue and the audience?) Sean Fine reports that Justice Rowe “staked out a liberal position on Charter issues, impressed a Quebec separatist with his spoken French and displayed his greatest passion on questions related to indigenous peoples and the law.” Justice Rowe may well be a white male, but he apparently exemplifies all that the government is looking for in a new Supreme.
On the Globe and Mail website, you will also find Sean Fine’s tweets of what Justice Rowe was asked, what he said, and Fine’s impressions of the hearing as it occurred. If you have a Twitter account, check out his tweets from the hearing of the Minister of Justice and Advisory Chair Kim Campbell the day before. A Twitter feed is effectively a live blog. Fine’s Twitter username is @SeanFineGlobe.
Where was the CBC on this? The only television coverage appears to have been provided by CPAC LIVE ONLINE at 11:15amET/8:15amPT, as part of its coverage of Parliamentary Committees. Who knew? If you search in the CPAC Digital Archives, you can find videos of both hearings. When the hearing for the next new Supreme occurs (in 2018, when Chief Justice Beverley McLachlin will retire), any chance we can have full CBC live television coverage with appropriate notice to all who are interested?
Parliament has no veto over the choice but, pursuant to the process, the Parliamentary Committee that questioned him will meet today to endorse his appointment, and he is expected to be sworn in next Monday.
Did you see the very interesting Insight piece by Paul Wells last Sunday in the Toronto Star? Entitled “Chasing Trillions to Build Billions in Infrastructure,” it described the efforts now underway by the Trudeau government to use private funds to help the Liberals fulfill their massive infrastructure promises.
Apparently, Finance Minister Bill Morneau and his Advisory Council on Economic Growth, appointed in March, are devising plans to encourage private pension plans and other large institutional investors to invest their billions of dollars for infrastructure projects. The Advisory Council includes Michael Sabia, former federal civil servant and current head of Quebec’s $250-billion pension fund, the Caisse de dépôt et placement du Québec, and Mark Wiseman, former head of the Canada Pension Plan Investment Board and now senior executive at BlackRock, the world’s largest asset manager. His company controls assets of $5 trillion.
These large institutional investors are frustrated by how their funds are languishing with historically low, or even negative, returns. To pay their pensioners and give their investors a better return on their funds, they need secure investments that will guarantee a reliable return which reflects actual, if reduced, global growth rates. The government needs funds to finance its infrastructure plans. In this communality of interest, there may be the means to achieve significant future action.
As Michael Sabia describes the proposal. there would be “an infrastructure bank funded in part by government capital.” Its mandate would be to design big infrastructure projects, or a “pipeline of projects,” to attract institutional investors from Canada and abroad. The object is to create a “multiplication impact” so that “every dollar of federal commitment triggers, say, four or five dollars from people like us.” The bank would require the authority and expertise “to structure and negotiate transactions in a highly expert way,” and the ability “to audit our national needs for infrastructure and… develop a national infrastructure plan.”
Already, a prototype “proof-of-concept” is underway. In 2015, the Quebec government changed the law to enable Sabia’s Caisse to create a subsidiary, CDPQ Infra, “to foster effective execution of major infrastructure projects.” In April 2016, CDPQ Infra announced plans for a $5.3 billion automated light-rail transit system with 24 stations on 67 kilometres of track west and south of Montreal and into the downtown core. As Wells says, “it would be the biggest transit project in Quebec in half a century.” The plan is for CDPQ Infra to put up $3 billion, and the federal and provincial governments to split the balance of $2.5 billion. This “mixed funding model” is to be matched with an “aggressive plan to generate profits through rider fares, paid parking and second-order private investment like commercial development at transit hubs.” The plan is to market this model worldwide to attract institutional investors and apply it to a range of infrastructure needs from transit to housing to electrical distribution, as Finance Minister Bill Morneau says, “to anything that we can find a way to appropriately create an opportunity for institutional investors.”
Wells reports that Justin Trudeau met BlackRock CEO Larry Fink at Davos, Switzerland, last January, and that on November 14th, BlackRock will host a day-long conference in Toronto where major international investors can consider the concept. Trudeau, Morneau, and Infrastructure Minister Amarjeet Sohi will speak at that event. In the meantime, a team of senior civil servants working under Serge Dupont, seconded temporarily to become deputy-clerk of the Privy Council (Canada’s second highest ranking civil servant), has been working on the issue with Trudeau’s senior policy analyst Michael McNair and other staff in the PM’s office. Apparently, the new public agency is tentatively called the “Canada Infrastructure and Investment Bank.”
Watch for further developments. This could prove very interesting. If you missed Paul Wells’ very informative analysis, you’ll find it on the Toronto Star’s website. It’s well worth the read.
Prime Minister Trudeau announced yesterday that the Honourable Malcolm Rowe is his nominee for the existing vacancy on the Supreme Court of Canada. He’s not a woman, nor indigenous, but he is from Newfoundland and Labrador, the first Supreme Court of Canada appointment from that province. His nomination maintains Atlantic Canada’s representation on the country’s highest court, a demand from Parliament, and the bar which has risen since the new guidelines for appointments were announced in early August.
The Honourable Malcolm Rowe is 63 years of age and a veteran judge from Newfoundland and Labrador. A member of the provincial Law Society since 1978, he was appointed to the Trial Division of the provincial Supreme Court in 1999, and then to the Court of Appeal of Newfoundland and Labrador in 2001. He is bilingual in French to the extent required by the new guidelines and appears to bring to the court a remarkable breadth of legal and public law experience.
Among other things, he was a foreign service officer with External Affairs for four years, in private practice with Gowling & Henderson in Ottawa for twelve years, and Clerk of the Executive Council and Secretary to Cabinet of the Newfoundland Government, effectively head of the public service, for three years. He was a key player in several big issues affecting the province: fisheries agreements and maritime border disputes between France and Newfoundland during the 1980s, international conventions to define and enforce international law against overfishing on the high seas from 1986-1995, and a 1997 constitutional amendment doing away with denominational schools in favour of a public school system.
While on the bench, he volunteered for a full month each year for 14 years with Action Canada, a program funded by Heritage Canada and private donors to train up to 20 young Canadian “Fellows” annually in leadership skills and to expand their knowledge of the country. As a member of the Selection Committee, an advisor on the operation of government, law and public policy, and as a mentor to Fellows, he has come to know much about the particular perspectives of people from different geographic areas and social backgrounds. His responses describing his experience with Action Canada, his upbringing in Newfoundland, and his living elsewhere for 20 years are an eloquent testimony to his appreciation of the country he appears to know well. The son of parents from small fishing villages who obtained his legal education at Osgoode Hall Law School in Toronto, he is not from a disadvantaged group. It would seem, however, that he is predisposed to fulfill the government’s objective of securing a jurist who understands the diversity of the country and the different interests of its citizens.
To learn more about the nominee, check out his answers to the questionnaire he had to complete upon applying for the position. Those parts of the questionnaire which the new procedure requires be made public are on the webpage of the Office of the Commissioner for Federal Judicial Affairs Canada. The material includes his synopses of the decisions and written materials he considers the most significant of his career, including leading cases on the law of sentencing in criminal law. Even more interesting is what his responses show about his own understanding of the role of judges in different contexts and at different levels of our judicial system. His philosophy as a judge appears to reflect the activism of his career and the need for the law and legal institutions to evolve in response to changing conditions.
So did the Trudeau government blink? Preliminary news reports are that the Conservatives and NDP are taking credit for the government’s decision to appoint a Maritimer after a much ballyhooed nation-wide search. Whatever the motivation, the new procedure has set an important precedent. A pool of potential future nominees have now self-identified across the country. Professionals interested in a future appointment now know the criteria that will be applied and, like Malcolm Rowe, can take the steps necessary to make sure that they have the language skill required. Under the new procedure, prospective appointees must put their credentials, and their philosophical perspective, in writing for all the public to see. I have no doubt that anyone reading the materials submitted by Honourable Rowe will be satisfied that he brings significant stature and analytical maturity to his new role. I suspect that his nomination will be a popular decision, and that he will be well-received in his upcoming appearance before Parliament. With his background, work ethic and sense of humour, he will be a welcome addition to the Supreme Court bench.
This spring, the Bank of Canada and the Trudeau government announced that the face of a woman other than the queen will be appear for the first time on a Bank of Canada bank note. Apparently a new series of bank notes is being released in 2018, and one of that series will feature the face of a woman.
The Bank launched a public consultation process to select “an iconic Canadian woman.” From March 8th to April 15th, over 26,000 names were suggested. On April 4th, an Advisory Council of seven diverse Canadians was appointed. The Council includes two historians, a sociologist, a university president, a youth activist, a young writer, and a champion 100-metre hurdler who has “earned more international medals and titles than any other female track and field athlete in Canadian history.” It’s a very impressive group whose biographical information you can read on the internet. Two experts were also appointed to advise on consultation strategies.
The first consultation generated 461 names of women who met the qualifying criteria: Canadian by birth or naturalization, “outstanding leadership, achievement or distinction” in any field benefitting the people of Canada, and deceased for at least 25 years. These names went to the Advisory Council to develop a “long list.”
See “A Bank NOTE-able Canadian woman” and find out how many names you recognize on this first list. I am chagrined to report that, despite my multiple university degrees, lengthy professional career, and lifelong feminism, I only recognized 33 of the names. And of even these, only most vaguely. Test yourself. How many names do you know from the list? Can you say anything specific about even those you recognize? If you are anything like me, our collective knowledge about the contributions of women over Canada’s history is abysmal.
The Advisory Council identified a “long list” of twelve nominees for the potential “NOTE-able woman.” They applied four criteria: the woman should have broken or overcome barriers, be inspirational, have made a significant change, and left a lasting legacy. They also considered three operating principles: the woman should “resonate with Canadians, reflect the diversity of Canada, and her achievements must be seen in the context of the time they lived.”
So who actually made the long list? The women chosen were: Pitseolak Ashoona, Thérèse Casgrain, Emily Carr, Viola Desmond, Lotta Hitschmanova, Pauline Johnson (Tekahionwake), Elsie MacGill, Nellie McClung, Lucy Maud Montgomery, Fanny (Bobbie) Rosenfeld, Gabrielle Roy, and Idola Saint-Jean. Check out their basic biographical details on the above website. Be warned: the details are basic.
According to an Angus Reid survey in early May, 27% of 1,517 Canadian members on an online forum favoured Nellie McClung as their number one choice. Thérèse Casgrain, Elsie MacGill, Lucy Maud Montgomery, Emily Carr and Viola Desmond were in the top six.
I knew little of the above when I read by chance this summer Nellie McClung’s The Stream Runs Fast: My Own Story (1945 reissued in 2007 by Thomas Allen). McClung is a wonderful writer whose life as an author, prairie reformer, suffragette, legislator, and representative of Canada on the international scene, is much more significant than her participation in the Persons Case. If her life is typical, all the top nominees from this very elaborate “recognition of women” process warrant a place on a bank note.
Reading her autobiography makes it clear to me that choosing one Bank NOTE-able Canadian Woman is the worst kind of tokenism. The bank notes in question are projected for 2018. Why are not all the top nominees included on the next set of bank notes? As this very elaborate process has indicated, there is no shortage of qualified women. Do we not have five bank notes? Of course we do. We have a $5, $10, $20, $50, $100, and even higher bills.
If Canadian women deserve recognition on one bank note, they deserve recognition on a whole series of bank notes. What other subject in the new series could be more important than recognizing the forgotten contributions of diverse women in Canadian history? The Bank of Canada Museum website describes all our Canadian bank note series. There is a bank note series on “Canadian landscapes,” “Canadian scenes,” “Canadian birds,” “Canadian journeys,” a “Commemorative” series on firsts, and a “Bilingual” series. Given this track record, why not an entire series on “iconic Canadian women?” If the Advisory Council is to achieve its operating principles, there can be no other choice. It is, after all, 2016.
Last week, Prime Minister Trudeau announced a new process for appointing justices to the Supreme Court of Canada. It will be used to choose a successor for Mr. Justice Cromwell, who retires on September 1st.
The Prime Minister was, and remains, responsible for these appointments. Previously, SCC appointments emerged from a shadowy process which was opaque, undefined, prone to rumours, and in the closet. The goal of the new process is to be open, transparent, accountable, and non-partisan.
The key elements of the new process are that:
1) any lawyer or judge who self-identifies as meeting the criteria may apply
2) an independent, non-partisan Advisory Board will vet applications and develop a non-binding short list of three to five nominees
3) the answers provided to parts of the application questionnaire could become public, and
4) within a month of the appointment of the new Judge, the Advisory Board will file a formal report, including statistics on the number of applicants and recommendations to improve the process.
The remaining steps are not new. The Minister of Justice will vet the nominees with Chief Justice McLachlin, provincial and territorial Attorneys General, relevant cabinet ministers, and opposition justice critics. After that consultation, the Prime Minister will choose a nominee. The nominee will appear before the relevant House and Senate committees for a joint Question and Answer session which, unlike before, will occur before the appointment is formally made.
Objections raised to the new procedure merit comment.
1) The end to geographic representation? In the past, new judges were generally appointed to make sure three were from Quebec, three from Ontario, and one from each of the Maritimes, the prairies, and B.C. That has now changed. Apart from the constitutional need for three Supremes from Quebec (because of the unique nature of Quebec civil law), it seems that future competitions for non-Quebec positions will be nation-wide. This is perhaps justified because the issues coming before the Supreme Court today are less federal-provincial inter-jurisdictional disputes than may have been the case in the past, and relate more to the Charter and other codified laws which have application across the country.
2) The Trudeau government has introduced two new criteria: a) that applicants be “functionally bilingual” and b) that they “represent the diverse nature of the country.” “Functionally bilingual” has been defined as the ability to understand written materials and oral argument without needing direct translation and, “ideally,” the ability to converse with counsel in the language they are using for argument. This is a lower level of bilingualism than “fluency,” and likely reflects the nature of the job where apparently one-third of appeals are conducted in French. In a country officially bilingual, it seems appropriate.
3) “Diversity” extends to gender, sexual orientation, minority representation, and the disabled, and is a widely accepted aspiration for our contemporary Canadian legal system. “Diversity” may well be a more useful criterion for a “representative” Supreme Court today than geography. Inviting any qualified candidate to apply will open up a pool of candidates who may be working below the radar and who, in the past, would never have been sufficiently well-connected to be considered. The Qualifications and Assessment Criteria are all laid out on the internet, including seven defining professional skills and experience, six relating to personal qualities, and three to “the institutional needs of the court.” This is an assurance that only the highest quality candidates will be nominated. The statistics to be made public will tell us the size of the current pool of candidates which will be very interesting, indeed.
4) The lack of MPs in the short-list process? The opposition justice critics will be included in the second stage vetting process, and MPs and senators may question the proposed nominee before final appointment. The new independent Advisory Board is an element of the appointment process adopted for the Ontario Court of Justice in 1989/1990. That Judicial Appointments Advisory Committee has no partisan input at the short-list stage, has been very successful in diversifying that bench, and is applauded worldwide by those interested in the issue. Professor Peter Russell, an expert on courts and judicial appointments, was the first chair of that Committee. He was quoted last week as saying that MPs “don’t have a lot to bring to the table” at that stage. For assessing the qualities required of a judge, he feels it is better to have direct input from the profession and the community.
The first Advisory Board is reassuring. Four members represent the Canadian Judicial Council, the Canadian Bar Association, the Federation of Canadian Law Societies, and the Canadian Council of Law Deans. These are best placed to assess the professional skills of the applicants. Three are “prominent Canadians” chosen by the Minister of Justice. Former Prime Minister Kim Campbell, the chair, ensures the non-partisan nature of the Board. Two others bring a distinctive community perspective, one a professional engineer experienced with community services in Montreal, the other the former Premier of the Northwest Territories and President of the Dene Nation.
I am confident that whoever emerges from this process will be a superb appointment to the Supreme Court. That the Advisory Board can recommend improvements in the process, if any, shows that it is not written in stone and could be modified in the future if necessary. I think the new process an exciting initiative which, in the long run, should achieve its objectives.