Category: National Politics

What has the Trudeau Government Done? An Update

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.

International Affairs:

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.

Domestic Affairs:

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 notes that the economy continued to grow at a decent rate (1.4%, 3.0%, and 1.8%) in the first three years of the Liberal government, and that the unemployment rate is the lowest in forty years. This is credited in part to immigration. Canada brought in between 221,000 and 280,000 immigrants annually between 2000 and 2014. In the last full year of the Harper government, Canada accepted 260,000 people. In October 2016 the Economic Advisory Council recommended that the federal government aim to increase immigration to 450,000 new residents annually. For economic growth and to counteract current demographic trends increasing the proportion of seniors per working people, the focus should be on economic immigrants and international students. The Trudeau government brought in 296,346 immigrants in 2016, 286,480 in 2017, and 321,065 in 2018. From 2010 to 2017, Canada’s population grew at a higher rate than any other G7 country. (p. 86)


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.



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A Solution to the Wilson-Raybould Affair

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.


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My Two-Hatter Take on Wilson-Raybould, Trudeau, and SNC-Lavalin

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.


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When is the Trudeau Government going to get rid of Mandatory Minimum Sentences?

I hate to pile on the Liberals when they are down, but a recent editorial in the Globe and Mail and a series of articles by justice writer Sean Fine have raised the outstanding issue of what the government is doing to cut the number of mandatory minimum sentences which are now clogging Canada’s criminal courts.

Historically, Canada had a very few mandatory minimums in the Criminal Code, primarily for serous offences upon which everyone would agree. By 2006, there were 40. By 2016, the number rose to 80 plus another 26 related to drugs under the Controlled Drugs and Substances Act.

Stephen Harper’s “tough on crime” agenda more than doubled the number of mandatory minimums, primarily to satisfy his political base. The Tories pursued this minimum sentence mania as a direct attack on the traditional discretion of judges to impose sentence in the criminal justice system. Historically, judges exercised their discretion based on the facts of the individual case and according to established principles of sentencing in the common law and in section 718 and related provisions of the Criminal Code. All criminal justice professionals, police, corrections and rehabilitative experts agreed that this traditional judicial discretion best serves the interests of victims, offenders, the criminal courts, and public safety. In the face of this expert advice, the Harperites did the opposite.

What has happened post-Harper is a trend which was widely predicted and should be addressed as quickly as possible. For lack of action by Parliament on the issue, Sean Fine reports that judges across the country and at all levels have been left to deal with the situation on an ad hoc basis, as best they can. The Supreme Court of Canada in 2015 struck down the three-year minimum for illegal gun possession in R. v. Nur, and a year later the one-year minimum for a second drug trafficking offence in R. v. Lloyd. They found that the statutory minimums were so excessive in the circumstances that they violated the offender’s 12 Charter rights against “cruel and unusual punishment.” Subsequently courts at all levels, including various Courts of Appeal who define the precedents applicable in their provinces, have made similar findings in cases before them.

The most recent is that of the B.C. Court of Appeal which struck down a six-month minimum jail sentence, and instead imposed a nine-month house arrest, for an Indigenous man who offered his niece $100 in exchange for a sex act. In that case, the Court emphasized its statutory and common law duty to consider the consequences of the sentence on Indigenous people. Now the Attorney General of B.C. is appealing the case to the Supreme Court of Canada arguing that the minimum jail sentence is necessary to protect Indigenous victims.

This case-by-case litigation in courts across the country is costly, counter-productive, and a colossal waste of time and money. A patchwork of contradictory decisions apply different penalties to different people in different provinces and territories. Crown attorneys for the provinces and the federal government waste thousands of dollars defending minimum sentences which did not before exist. Courts are clogged with cases which cannot be resolved because the constraints imposed by the minimum sentences impede plea negotiation. The existing uncertainty encourages unnecessary litigation at great expense to the public and taxpayers alike.

Rationalizing the minimum sentence regime in Canada’s Criminal Code and the Controlled Drugs and Substances Act is a no-brainer. The Prime Minister and his Minister of Justice would be wise to make it a priority.

There are many problems facing Canada’s criminal justice system: delay in the courts, the lack of juries representative of the people, a Criminal Code which reads like the Income Tax Act. All can not be addressed at once

The government has developed new procedures for appointing Supreme Court and Superior Court judges. It has filled many judicial vacancies. Money has been allocated to promote the training of police officers who investigate sexual assault cases so that the rate of cases determined to be “unfounded” declines. This is part of a move to promote “best practices” in Canada’s criminal courts.

If “best practices” is the name of the game, Parliament must deal with the excess of mandatory minimum sentences as soon as possible. The next election will come all too quickly. I would hate to see this promise relegated to the list of the “undone.”



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Trudeau’s India Trip and the Convicted Attempt Murderer

The Liberal Government fraternizing in India this week with a high-profile Indo-Canadian convicted years ago of attempt murder has stirred up a hornet’s nest. Rightly so. It is shocking that Jaspal Atwal, a businessman from Surrey, B.C. who was once an extremist for Sikh separatism who was convicted of attempt murder, appears in a photograph taken in Mumbai with Sophie Grégoire Trudeau and Infrastructure Minister Amarjeet Sohi. Worse still, Atwal was invited to an official dinner at the Canadian High Commissioner’s Residence in Delhi, and then, when the story broke, un-invited. Appropriately so.

I agree with the domestic and international press that both were serious diplomatic gaffes which the Trudeau government should have avoided. Canada, of all countries, should not be seen, or perceived to be seen, as supporting separatist aspirations anywhere abroad. 

Smelling fresh blood, The National Post ran several background stories Friday and Saturday on Jaspal Atwal. Christie Blatchford and John Ivison provide alarming details of his early membership in the International Sikh Youth Federation, which Canada banned as a terrorist group in 2003. The federation’s objective was separatism for Khalistan which John Ivison says is “the would-be Sikh homeland in the Indian state of Punjab.”

Atwal has a very serious record of criminal activity in Canada, promoting separatism in his homeland. In 1985, Atwal was charged with a vicious near-fatal attack on prominent B.C. politician Ujjal Dosanjh, who publicly opposed Khalistan separatism. Although Atwal was later acquitted in court, Dosanjh remains convinced that Atwal was his attacker.

In 1987, a B.C. court convicted Atwal and three others of attempting to assassinate a visiting Indian state cabinet minister who was attending a family wedding on Vancouver Island. Atwal was sentenced to twenty years in jail, a sentence upheld by the B.C. Court of Appeal in 1990. He actually served five years in prison before he was paroled. All this was in the context of the extreme Sikh terrorism, which included the worst mass murder in Canadian history, the 1985 Air India Flight 182 bombing which killed 329 people over Ireland. Sikh terrorists based in British Columbia planted the bomb which took down the airplane.

Atwal’s assertion that he has been rehabilitated from his youthful lawlessness is belied by his recent criminal record. In 2010, while working as a car salesman, Atwal was convicted of an elaborate automobile fraud against the B.C. Insurance Corporation. Two years later, his appeal against that conviction was denied. Under the current rule for pardons (ten years) imposed by the Harper government, he may not yet be eligible for a “pardon.”

In the face of his criminal record, his close ties with the Liberal party are cause for concern. Maura Forrest in The Post catalogued Atwal’s relationship with both the provincial and federal party. He was an executive member of a federal Liberal riding association in Surrey from at least 2011. He was invited to watch the budget speech in the B.C. legislature in 2012. He attended many fundraisers for the Liberals. He has been photographed with Michael Ignatieff, Justin Trudeau, Public Services Minister Carla Qualtrough, and Brampton Liberal MP Sonia Sidhu. B.C. Liberal MP Randeep Sarai admitted that he facilitated Atwal’s request to attend the High Commissioner’s event, actions which Trudeau has now said he will investigate further. Apparently, Atwal had been on a list of extremists banned from entry into India. Yet here he was, admitted to India and intimately interacting with the Canadian delegation.

How embarrassing for Trudeau, the government and our country. It is almost as chilling as the picture of the Queen in the company of Colonel Russell Williams, a photo taken before Williams later pleaded guilty to multiple counts of first degree murder. At least, Williams’ crimes were not yet known; the Liberals have no such excuse about Atwal’s history.

The incident raises all sorts of very serious questions. Why was Atwal not vetted by officials at Global Affairs, ISIS, CSIS, or other Canadian intelligence and security? How is it that India lifted the ban against his admission to the country? How is it that the Liberals have been so close to him in recent years?

Maybe this will be a lesson for all Canada’s political parties. They cozy up to anyone for political purposes at their peril. If sexual misconduct is a no-no, surely an existing criminal record and a history of extremism and fraud should also raise a red flag. The pursuit of votes must not come by compromising Canadian values nor, more importantly, safety and security.

This incident is also a useful reminder to all Canadians, and particularly to newcomers to the country who may not know the details of our history, that violent extremism in Canada did not start with the Islamofacist jihadists we fear today.

When I was growing up in British Columbia in the 1950s, the radical Sons of Freedom Doukhobors, a religious sect from Russia who settled in the B.C. interior, bombed electricity power lines in the province and their women demonstrated in public places in the nude, against compulsory public education among other things. The B.C. government responded by arresting the bombers and rounding up their children to make them attend school. I don’t know if they had residential schools for Doukhobor kids; the topic would be worth some research.

During the 1960s, the Quiet Revolution in Quebec prompted the growth of the FLQ (Front de libération du Québec), a Marxist, paramilitary separatist group which used violence to promote its aims. In 1969, the FLQ bombed the Montreal Stock Exchange causing massive destruction and seriously injuring 27 people. The group set off a further series of bombs over the summer which culminated in their bombing the home of Montreal mayor Jean Drapeau. In October 1970, they kidnapped Quebec Deputy Leader and Minister of Labour, Pierre Laporte, whose body was later found in the trunk of his car. This began the October Crisis, when Prime Minister Trudeau the elder invoked the War Measures Act, to the horror of civil libertarians across the country.

When I was a judge sitting in Scarborough from 1995-1999, Tamil gangs, who brought their civil war from back home with them when they immigrated to Canada, plagued the community. Rival gangs were before the courts on many charges. I remember the day when one gang leader, charged with many crimes of violence, attended court with a can of gasoline under his arm. He apparently intended to immolate himself in the court room. When he was stopped by the strict airport-like security set up at the courthouse door, he threw the can of gasoline across the corridor, causing the building to be evacuated. He later received nine months in custody for charges arising out of that incident. This violence ended only after vigorous prosecutions and the intense involvement of the law-abiding Tamil community.

If Sikh separatist extremism is on the rise (who knew?), then it behooves all of us to make sure that we are not seen to be soft on violent extremism, either at home or elsewhere in the world. All politicians should take note.



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Compensation and an Apology to Omar Khadr

I’ve been asked to comment on the current Omar Khadr controversy. I wrote about the Omar Khadr case in an earlier post which will give the essential background. (It can be found here.) Apparently over 70% of Canadians oppose the federal government’s compensation payment of $10.5 million to Khadr, yet over 40% do not know whether he was fairly treated or not. If they don’t know, how can they have an opinion on the wisdom, or not, of the compensation? The Trudeau government paid to Khadr the same amount the Conservative government under Stephen Harper in 2007 paid to Maher Arar, who had been tortured in Syria after being sent there by the United States on the basis of false information from Canada. I agree with the Globe and Mail that compensation in both cases was the right thing. In my view, with respect to Omar Khadr at least, the government got off lightly.

In 2010, the Supreme Court of Canada reviewed the actions of the Canadian government towards Khadr at Guantanamo Bay and found that the Canadian government had clearly breached his rights under Canadian law, the Charter, and various international treaties. The breaches were multiple, grievous, with continuing effects at the time of the Supreme Court decision and into the future. He was a Canadian citizen, born in Toronto, 15 years of age when in July 2002 he was found very seriously wounded and the only survivor of a firefight that destroyed an al-Qaeda compound during the war in Afghanistan. Under Canadian law, he was a young person at the time, yet he was incarcerated indefinitely, refused repatriation back to his native country (unlike British and Australians similarly situated), denied access to counsel, tortured and interrogated repeatedly, including by Canadian intelligence agents and diplomats who shared the fruits of those interviews with US authorities. The videotapes of those interviews by Canadian officials were before the Supreme Court of Canada. Although he later pleaded guilty to having thrown a grenade which killed an American military medic and wounded another soldier, his guilty plea was extorted from him after he had been imprisoned for eight years, tortured and offered a resolution as the only way to escape indefinite incarceration without trial in Guantanamo Bay. In Canadian law, his “confession” would not be admissible and, according to reports, there is little other evidence by which he could be found guilty of the offences alleged against him. When he finally was returned to Canada in 2012, he served further time in a maximum security federal penitentiary until he was moved to a provincial facility and, finally, in 2015, freed on bail.

The Supreme Court of Canada found that multiple breaches of Khadr’s rights violated “the most basic Canadian standards about the treatment of detained youth suspects.” There is no need for any further court action to establish those facts. Those are the facts which call for compensation and an apology. People who insist that the Liberal government has settled this case prematurely apparently do not appreciate that the issue has already been decided by the highest court in the country. Both the Liberal government in power at the time of the interrogations and the Conservatives who resisted later efforts to assert his rights and repatriate him back to Canada were responsible. In the circumstances, settlement is the prudent course of action.

I agree with the Globe and Mail that a civilized justice system does not torture people, even people who are fighting for the other side in a military conflict. “A legal justice system, one operating under the rule of law, does not coerce confessions with violence or threats,” does not single young people out for mistreatment, does not deny habeas corpus or access to a lawyer. The case is about “the rule of law” and the duty of the Canadian government to adhere to the rule of law in its interactions with all its citizens, including those abroad. We are all beneficiaries of the rule of law, never more so than when we find ourselves or our family or friends the focus of unproven allegations or alone, abroad, in trouble. The Canadian military fought for the rule of law in two World Wars, in Afghanistan and in various peacekeeping missions which continue today. Preserving the rule of law sometimes takes lives and sometimes takes treasure.

And I also agree with Colby Cash, writing in the National Post on July 6th:

“The intractable problem with Omar Khadr is simply his existence. The politicians who seem to crave (more of) his blood are… trying to punish the behaviour of his father, and to retroactively abnegate the slack application of dual-citizenship principles that allowed Khadr Sr. to become Canadian while leading a double life as an international terrorist. No one who has read Sophocles or the Old Testament can fail to recognize the mentality at work here. Omar Khadr is the manifestation of a curse upon the state. His personal activity and his ethical culpability are not really the point… It is the Khadr-frenzy crowd… who seem to own magic glasses that can see through time and penetrate the fog of war. They state confidently, as a fact, that Khadr was personally caught using violence against Canadian allies. This proposition seems untried by any forensic method we would expect to receive the benefit of, ourselves… Maybe you believe, to a moral certainty, that he threw the grenade… maybe you believe that Khadr deserves to be treated as if he had been a responsible, independent adult at the time. That is a fair amount of compounded confidence. But even granted all of that, don’t the legal traditions of Canada and the United States, whose courts have both condemned the regime under which he was tried and held, still require him to be given some credit for time served in an extra-national torture shop? Indeed, wouldn’t a non-legal idea of common justice require it? I am not a Christian, so I won’t invoke mercy. That concept does not seem necessary to the argument. But I do notice that no one seems very interested in adding it.”


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My Australian cousin writes on electoral reform and the Australian system

My cousin LARRY, today’s Guest Blogger, was born in Canada where he lived for about 50 years. On retirement in 1990, he and his wife left Canada on a 10-year sailing voyage to Mexico, several South Pacific Island countries, New Zealand and Australia, with the goal of sailing past the Sydney Opera House. After 10 years of fun and adventure, they sold their 37-foot yacht to an Aussie couple. He is now an Aussie citizen and lives in winterless Australia.

Here’s Larry…

I have lived here in wonderful Australia for 16+ years. During that time, I have done some research into the Australian electoral system. The complication of the whole process boggles the mind and they keep tweaking the rules. So confusing is it, that in the lead-up to the last federal election in 2016, the Federal Electoral Commission even published wrong information regarding the rules of voting, causing much confusion at the polls which caused ballots to be ruled informal (not counted) when they shouldn’t have been. There is a rule that once a ballot has been ruled as informal, it cannot be changed to formal for any reason, so these ballots were never counted.

Australia has elections every 3 years for the Lower House and ½ the senate, (Senators are elected to 6 year terms). However, if the government of the day calls for a double dissolution, all seats become vacant including all senate seats. This is what happened in 2016 so ½ the elected senators only got 3 year terms.

Australia has compulsory, preferential, manually counted voting. It may sound like a good idea to force every citizen to vote but in my opinion, it isn’t

Preferential voting here means each person on the ballot must have a number beside it in the order of your preference or your ballot is ruled informal and discarded. The Political Parties will get together and make deals for preferences before the elections. The various parties will publish “how to vote” cards which are passed out to voters at the polls, to try to influence the voter to vote their preferences to benefit them, as per pre-election deals made with the other parties. Many people just grab the card from the party they support and vote like sheep as per instructed on the card. Others get boggled with all the ‘how to vote cards’ thrust at them as they line up to vote. We call the walk from the footpath to the voting room entrance, ‘walking the gauntlet’ and do not accept any cards.

No one needs ANY ID to vote! Many cases came to light after the election, where on Election Day; people were told their name was already crossed off so they couldn’t vote again, when in fact they hadn’t voted at all. Obviously someone else voted and used their name. Anyone could visit different voting locations and give any name out of the phone book if they desired and some reportedly do just that. The far Left Labor Party has the reputation of telling their members to “vote early and vote often”. True or not – depends on who you talk to. This needs changing immediately, in my opinion.

People, who think seriously about their vote, will vote intelligently, and would have voted even if they weren’t forced to. However the people who don’t care and normally wouldn’t vote if not threatened by a big fine, don’t want to be there, and are angry they have to stand in a queue for hours to vote. Many of these people will just number their ballots 1, 2, 3, etc. from the top down to get the process over as soon as possible. It is such a problem that before printing the ballots, the names of the people contesting the seat are drawn out of a hat, to set the order their names will be placed on the ballot paper. Usually, the name at the top gets so many 1’s and has a very good chance of being elected. The poor guy at the bottom of the list is disadvantaged and rarely gets elected. The result is decided by voters who could care less! It is not a good system and why I prefer the ‘first past the post’ system.

The Senate – A senator is a member of the Australian Senate, elected to represent a state or territory. There are 76 senators, 12 from each state and two each from the Australian Capital Territory and the Northern Territory.
Our Queensland senate ballot had 122 candidates listed alphabetically by Party, running for the 12 seats available. I made a computer print-out, listing them in the order I wanted to vote for them, which took several hours to research and put together at home. It took about 20 minutes to fill out the 4 page ballot, putting a number from 1 to 122 beside each name. Very few people would have taken the trouble to do this and many just put a number beside the 2 or 3 people they are familiar with and put any sequential number randomly after all the other names. Not good – bogus outcome! The results of the Senate vote in 2016 took over 2 weeks to compile and publish the final list of elected.

Assuming that Canada is about the same as Australia, I would guess that no more than 35% of the population actually give a damn about who their government is. In Canada, the 65% don’t vote, here they do vote and badly skew the results. Forced voting is not good. Preferential voting is not good. Be careful what you wish for!

I find it interesting that Trudeau would be tinkering with the electoral process. Usually when any ‘politician in power’ starts tinkering with the electoral processes, they are trying to tweak the system to their party’s advantage for future elections. I personally would be very leery of someone who wanted to do this.

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What Has the Trudeau Government Done, July-December 2016?

My single most popular post last year was my listing on July 5th of the Trudeau government’s accomplishments, to date. Six months later, it is useful to take up the catalogue again, with a little help from my stash of newspaper clippings, my increasingly informative e-news sources, and related webpages. Here is another list: what the government has done in the second half of its first year in office. I apologize in advance that this is more wordy than the previous one. Skip the details, if you like. Or print the post as a hard copy.

1. The government developed a transparent, predictable process for appointing Justices for the Supreme Court of Canada, and defined criteria for qualities of the judges they wanted. The criteria included “functional bilingualism” in both Canada’s official languages, and sensitivity to the diversity of Canada’s population. Although the Prime Minister retained the right to make the appointment, an independent Advisory Committee chaired by former Prime Minister Kim Campbell was struck to vet applications and make recommendations. The competition was opened to any lawyer in Canada who applied for the position. The existence of a pool of candidates who self-identify as potential Supremes is very useful. Future candidates are on notice about the qualifications expected for the job and the government will be able to make future appointments more expeditiously

2. In the face of widespread pressure to retain the customary regional allocation of Supreme Court judges, the government appointed Canada’s first Supreme Court of Canada justice from Newfoundland. Mr. Justice Malcolm Rowe is a white male from a rural fishing family who is more than “functionally bilingual” in French and who has a personal track record demonstrating his appreciation of Canada’s diversity. His appointment has been widely applauded.

3. On October 20th, the government appointed 25 new s.96 justices across the country. One to the Tax Court, three to the Superior Court of B.C., two to the Alberta Court of Appeal, five to the Alberta Court of Queen’s Bench, three to the Manitoba Queen’s Bench, three to the Superior Court of Nova Scotia, one to the Ontario Court of Appeal, five to the Ontario Superior Court and one to the Quebec Court of Appeal. These appointments do not expand the complement, nor even fill all existing vacancies, but they are a start. Biographical information about all new appointments is available on the Department of Justice website.

4. On November 23rd, they appointed 22 Deputy Judges for the Superior Courts of Yukon, the Northwest Territories and Nunavut. These part-time positions were appointed from existing jurists across the country.

5. The government defined a new transparent procedure for future s. 96 judicial appointments. Each province will have an Advisory Committee to solicit and vet applications. Committees will consist of representatives from the provincial Attorneys General, the major legal professional bodies, and three lay representatives. Anyone interested in serving as a lay member of these committees had to submit an application by mid-November. Clarifying the process and broadening the base of input into judicial recommendations will encourage the diversity that a responsible judiciary requires.

6. The process of building a new independent Senate was initiated. The government established an Independent Advisory Board for Senate Appointments consisting of a chair, two federal members and fourteen members representing the provinces. The role of the Advisory Board is to receive applications and provide recommendations on Senate appointments to the Prime Minister. The board is to advertise vacancies as they occur, and apply public, merit-based criteria “in order to identify Canadians who will make significant contribution to the work of Parliament.” On October 27th, the government announced nine individuals named to the Senate under the new procedure to fill vacancies in B.C., Manitoba, New Brunswick, Nova Scotia and Prince Edward Island. Their biographies are on the webpage of the Advisory Board.

7. The Terms of Reference of the Advisory Board require a report to the Prime Minister within three months of submitting names for appointments. On December 21st, the Advisory Board published its report on the first cycle of their permanent process from July to November 2016. The report indicates that 2,757 applications were received, 308 from B.C., 145 from Manitoba, 127 from New Brunswick, 174 from Nova Scotia, 1169 from Ontario, 768 from Quebec, and 66 from Prince Edward Island, 39.9 % female, 60.1% male, 67.9% English, 31.3% French, 21.08% unknown, self-identified diversity of 3.74% LGBTQ, 19.59% ethnic/cultural group, 13.57% Indigenous, 24.99% visible minority, and 9.03% people with disabilities. All of this information is also found on the website of the Board.

8. Canadians can now apply online “until 23:59 Eastern Time on January 25, 2017” for six Senate vacancies expected in 2017 in New Brunswick, Nova Scotia and Ontario. The assessment criteria, forms and templates, frequently asked questions, and guidance on how to create a profile and submit an application are all on the website of the Advisory Board, as above.

9. The initiatives above are described in great detail on government websites which are user-friendly and readily accessible. These are a welcome contrast to the opaque government websites under the previous regime, notable for their singular lack of accessible information. 

10. The government concluded and ratified the Canada Europe Free Trade Agreement. Minister of International Trade Chrystia Freeland is generally credited with having acquitted herself well in the last-minute negotiations.

11. In September, Prime Minister Trudeau and Minister of the Environment and Climate Change Catherine McKenna both met with officials in China to encourage more bilateral trade, address climate change initiatives, and deal with more specific issues between them. Canada renewed its commitment to support of the CCICED (an international advisory body established in 1992 to provide China’s State Council with research-based policy recommendations on environment and development issues). During Prime Minister Trudeau’s official visit to China (August 30 – September 6, 2016), the two countries agreed to address climate change through the Paris Agreement, and signed a statement of cooperation between Parks Canada and the National Development and Reform Commission of China regarding establishment, conservation, and management of protected areas.

12. In October, the government announced a pan-Canadian approach to pricing carbon pollution. Provinces and territories will have flexibility in deciding whether to implement the policy by a direct price on carbon pollution or by adopting a cap-and-trade system. Although the provinces will choose the specific nature of their own climate change policies, the federal government has set a national “floor price” on carbon that all provinces must levy by 2018. The price is to be $10 per tonne of carbon dioxide emissions in 2018, rising by $10 each year to $50 a tonne by 2022. The federal policy provides that all proceeds from carbon pricing will return to the provinces implementing the policy. See CBC news coverage of this initiative. 

13. In October, they announced plans for a “Canada Infrastructure and Development Bank” to be promoted with large international institutional investors in a conference featuring Trudeau and Moreau in November. See my previous post, “Private Money for Public Infrastructure?” 

14. In late November, the government approved twinning of the Kinder Morgan Trans Mountain pipeline from Edmonton to Burnaby. If constructed, the number of tankers carrying diluted bitumen travelling through Vancouver harbour, the Salish Sea and Juan de Fuca Strait will increase from approximately five to 34 a month. The project is almost universally opposed by local municipal governments, environmentalists and Indigenous groups. Trudeau said the government expects Kinder Morgan to “meet and exceed” the 157 conditions imposed by the National Energy Board in April. Earlier in the month, the federal government announced a $1.5 billion ocean protection plan to improve responses to tanker and fuel spills in coastal oceans.

15. The same day, Trudeau announced that the government is approving the new Enbridge Line 3 renewal to transport oil from a terminal near Hardisty, Alberta to Gretna, Manitoba, near the Canada-US border. There, it will continue through northern Minnesota to refineries in the USA. A 1,659-kilometre project worth $7.5 billion dollars, the renewal will double the volume of oil carried by the existing pipeline, funnelling nearly three million barrels a day of Alberta oil to the United States. The National Energy Board approved that project in April with 89 conditions affecting the Canadian section. The project will need further permit approvals from the state of Minnesota where there is considerable opposition to running a pipeline through environments important for their water supply.

16. At the same time, Trudeau announced that the federal government would not approve Enbridge’s Northern Gateway pipeline from Alberta’s oil sands to Kitimat in northern B.C for export via the northern coast of B.C. He also announced that the government will introduce a new law in 2017 to impose a moratorium on crude oil tankers along B.C.’s North Coast.

17. Opponents of this pipelines policy vow continued opposition to the government’s decision so that they may never be built. Environmentalists are also concerned that pipelines for fossil fuels undercut Canada’s commitment to climate change. Trudeau replied that the pipelines were in the national interest, support the Canadian economy and help the Alberta economy to access foreign markets. He also insisted that transporting oil by train (the current practice) is more hazardous to the environment and public safety than use of pipelines.

18. In December, Trudeau met with heads of the Assembly of First Nations, the Inuit Tapiriit Kanatami and the Manitoba Métis Federation. The Prime Minister committed to an annual meeting with the heads of the organizations, “to develop shared priorities and to monitor progress” on implementation of the recommendations of the Truth and Reconciliation Commission on residential schools. In addition, similar meetings with key cabinet ministers will take place at least twice a year. Indigenous leaders were pleased with, at least “a strategy and plan moving forward.” Senator Murray Sinclair, former head of the TRC, was pleased with the announcement. See Gloria Galloway’s article from the December 16, 2016 Globe and Mail.

19. In December, Canada contracted with Polaris Industries ($28 million) to deliver 78 of its Ultra Light Combat Vehicles (DAGOR), described as “dune buggies on steroids,” to Canada’s Special Operations Forces Command. The first 52 vehicles were purchased immediately for delivery in 2017, the remaining 26 will be delivered in early 2018. The vehicle will add a weapons turret for off-road operations and will be transported by a variety of military aircraft, including helicopters. The contract includes technical and logistics support for two years through Black’s Corners Motorsports (BCM), in Carleton Place, Ottawa. See David Pugliese’s recent article in the Ottawa Citizen.

20. In December, Science Minister Kirsty Duncan announced a ban on asbestos and asbestos-containing products by 2018. Canada’s last asbestos mines closed in 2011, but Canada has been slow to meet international anti-asbestos standards. The government announced that it will draft a new regulation under the Canadian Environmental Protection Act to ban “manufacture, use, import and export” of asbestos-containing products including building materials and brake pads. It will also introduce new federal workplace health and safety rules to “drastically” limit the risk of on-the-job asbestos exposure, expand the current list of asbestos-containing buildings owned or leased by the Canadian government, and work with the provinces to include a prohibition on use of asbestos in building codes, affecting new construction and renovations. Read Tavia Grant’s Globe and Mail article, where she reports that advocates have termed the ban “a win for public health,” but long overdue. Note that “under its proposed regulation, the mining and processing of asbestos tailings and residue in Quebec” will be excluded from the ban.

21. In December, the government received the Report of the Task Force on Cannabis Legalization and Regulation chaired by Anne McLellan. Even Chris Selley in the National Post (“The clock starts now for pot legalization retitled for web-posting) said it “is the picture of bold common sense: set a minimum age of 18 for purchase, leaves to the provinces to determine retail models preferably keeping weed separate from alcohol, enforce labelling standards for higher strains and potency, allow people to grow a few plants at home, get busy studying the implications for impaired driving.” To meet the problem of higher potency marijuana, there will be a higher tax on higher potency. As Selley noted, “this file remains an opportunity for the Liberals to expend some capital doing the right thing, coherently and backed by evidence, for the right reasons—freeing up justice system resources, liberating people from ridiculous and counter-productive threat of criminal sanction, putting gangsters out of business.” Anne McLellan indicated that the consultations of her Committee were comprehensive and intensive, open to hearing all interests. The age group 18-24 is the age cohort most using cannabis, which they now obtain from the illegal market. The CMA had recommended 25 years of age (after the developing brain is intact) as the minimum legal age. The government compromised, 18 or 19 years of age, like alcohol, as determined by the provinces, in the expectation that young people of that age can make an informed decision after considering the risks.

23. In December, Minister of Innovation, Science and Economic Development Navdeep Bains announced further details of a program called “Connect to Innovate,” a five-year program to invest $500 million in expanded broadband internet access in 300 remote and rural communities. Companies seeking funding under the initiative have until March 13, 2017 to make their applications.

24. The government prepared plans to respond to the election of Donald Trump as president of the United States. They publicly adopted an international stance in favour of trade, immigration and diversity. Paul Wells, in the Toronto Star December 16th, noted that Trudeau told reporters from the Guardian, Britain’s leading centre-left newspaper: “If we can show—as we are working very hard to demonstrate—that you can have engaged global perspectives and growth that works for everyone, then that diffuses a lot of the uncertainty, the anger, the populism that is surfacing in different parts of the world.” Pie in the sky? Or a real new role for Canada? It’s too early to tell, but at least the Trudeau government has staked out the Canadian alternative.

25. Patrick Gossage for CBC News on December 30th suggested that “the celebrity status of Trudeau and Sophie Grégoire-Trudeau in the United States” will be to their advantage in dealing with president-elect Trump. They are very popular there and, just as Reagan got along with Pierre Elliott Trudeau, Trump will likely get along with Justin. He also noted that their shared support of the Keystone XL pipeline in the USA will be “a gift” for Canada, and that Trump’s nominee for secretary of state, Exxon CEO Rex Tillerson, “knows Canada well, and Exxon has large holdings in Canadian oil retail, exploration and development.”

25. In December, Health Minister Jane Philpott and Public Safety Minister Ralph Goodale introduced Bill C-37, a new law and regulations amending the Controlled Drugs and Substances Act, the Customs Act and the Proceeds of Crime and Terrorist Financing Act. These changes will make it easier for safe injection sites to open and make it harder to smuggle fentanyl into the country. Empirical data based on the Vancouver Insite clinic shows that such facilities save lives, allow addicts to access appropriate services, and do not have any negative impact on criminality. The new law repeals entirely the 26 criteria the previous government had passed which made it next to impossible for additional sites across the country to adopt the elements of the Vancouver model. The new strategy also puts drug policy back under the Health ministry and away from the Department of Justice.

26. The government made numerous changes in Canada’s taxation laws, which I will leave aside for the moment, as they are undoubtedly complex and I would need to defer to my son who is the tax specialist in the family. I do note, however, that my favourite children’s toy shop and bookstore is advertising the new “Teacher and Early Childhood Educator School Supply Tax Benefit.” This tax change will provide a cash benefit of up to $150 for purchases of supplies and materials up to $1000 made by all certified teachers and educators for their classes. I am normally opposed to tax “expenditures” of this kind but, if they must exist, providing some compensation for teachers is a good thing. Apparently, “the list of allowable school supplies will draw on best practices in Prince Edward Island, which has already implemented a provincial school supply tax benefit.” There are many ways to craft cooperative federalism. Imitating best practices from other jurisdictions is one of them. According to the promotional material, this tax benefit “will apply for the 2016 tax year and subsequent taxation years, and will generate $60 million annually in tax savings for teachers and early childhood educators across the country.”

27. In August, Defence Minister Harjit Sajjan and a team of Ministers announced that the federal government would spend $450 million over three years on a peace and stabilization fund that will be used for renewal of Canadian participation in United Nations Peacekeeping Operations. The allocation will extend to 150 police officers, an increase to $47 million in the RCMP stabilization fund, and up to 600 Canadian troops, the provision of air transport, medical, engineering and training components. During the fall, consultations continued with the United Nations and NATO allies about where deployment(s) would occur. The countries reviewed by the Defence Minister include Mali, the Congo and the Central African Republic. In January, Global Affairs, the newly renamed Department of Foreign Affairs, has scheduled a day-long strategy session with government officials and experts to give flesh to this policy. Expect details of how the new deployment will be “branded” and where it will occur. See the article by Mike Blanchfield in National Observer.

28. In November, Defence Minister Harjit Sajjan announced that the government would purchase 18 Boeing Super Hornet fighter jets, in addition to holding a competition down the road for replacement of the C-18 fleet. The Super Hornet is considered to be a cheaper alternative to the F-35 stealth fighter jets selected by the Conservative government. Both types of jets are used by Canada’s allies. There is concern, however, that punting the decision about the F-35s down the road amounts to a “final decision” on the issue for the foreseeable future.

I don’t know about you, but I consider this list a pretty full agenda. Not bad at all for the second six months in office.

Understandably, there is disagreement over the specifics of particular policies. Partisans on all sides have strong positions. Whether for or against, I think that the government has done a great deal. Theirs may be a middle position, even a conservative position, but at least they have taken a position on many issues and are prepared to go forward. To say, as does Paul Wells in the Toronto Star in his December 16th article, “Global darling Trudeau fails to deliver at home,” that the Liberal government has done nothing is incorrect. “False news,” even.

“Failures” to date:

  1. The Special Committee of MPs studying Electoral Reform recommended that the government hold a referendum that pits the current First Past the Post system against a system of proportional representation, but apparently did not recommend a particular method of proportional representation. Notwithstanding this result, the Liberal members of the committee do not agree that a referendum should be held and the NDP and Green members issued a joint supplementary report which also questions the need for a referendum. Minister of Democratic Reform Maryam Monsef rebuked the committee for failing to recommend a specific type of proportional representation system. Among other things, she said they had “shirked their responsibility.” It is not surprising that she was later forced to apologize for her remarks. I have not read the reports, but clearly the government looks bad on this issue. They benefit from the FPTP system and have little incentive, except fulfilling an election promise, to change it. I agree that previous referenda about electoral reform have all failed. In my view, they failed because more resources were spent on the consultation process than on educating the public about the nature of the alternative proposal. When the electorate is confused and comes out in low numbers, any referendum is useless. If a referendum were desired, it strikes me that ours should follow the Irish model. There, they have high voter turnout and have made significant constitutional changes. See my previous posts entitled “Lessons from the Irish Referendum for Canada” and “Revelling in the Results of the Irish Referendum.” If nothing else, maybe the Liberal government could pass legislation making it mandatory that people vote. That would be an excellent “electoral reform” to implement before the next election. Who would disagree with that? There are precedents in other parts of the world.

2. In late December, Finance Minister Bill Morneau began negotiations with the provinces and Territories about the new federal Canada Health Transfer (CHT). The current federal contribution of 6% is scheduled to end next year. He offered to raise the minimum annual increase the government had previously offered from 3% to 3.5%, add an extra $8 billion over ten years for home care and mental health, as well as $544 million over five years for prescription drug and “innovation” initiatives. Talks broke down and that offer is now off the table. Most provinces rejected the offer because provincial demands for the base CHT were considerably higher, and because the extra funds came with federal strings attached. Later in the week, Newfoundland and Labrador, New Brunswick and Nova Scotia broke ranks with the rest of the provinces and entered into bilateral agreements with the federal government. They accepted the federal offer of 3% plus the add-ons, with the proviso that should other provinces receive a higher base transfer, they too would get the higher rate. Moreau had said before the meeting that if no deal could be reached, federal support would revert to an annual increase in health transfers of 3%, or nominal economic growth, and provide $3 billion for home care. This federal “take it or leave it” approach angered most provinces and, in my view, is a bluff. Expect further negotiations in January. I’m betting that all provinces will be on board eventually, and that some arrangement will be made so that “strings attached” will accommodate “the special nature of Quebec.”

3. The primary concern of the opposition parties and the media seems to be “access in exchange for political funding.” Trudeau may not be living up to his lofty standards, and certainly not the standards imposed by Ontario Premier Kathleen Wynne. But, as Tom Flanagan argued in the Globe and Mail on December 16th, what they are doing is no different from the same thing done by other parties. As Flanagan warns, and Andrew Coyne took up in the National Post this morning, if critics are not careful, the Liberals may well restore government financial subsidies to political parties based on the vote, first implemented by Prime Minister Chrétien and later terminated with relish by Harper. The Tories would hate that, although the NDP, Green Party, and Liberals would be delighted. Wouldn’t that be an interesting twist?

In my view, that the opposition (and the conservative media) is obsessed with this issue, in the face of all the other things the government has done August to December, speaks to their weakness. Preoccupied as they are with choosing new leaders, the Trudeau government can get on with its agenda.

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Private Money for Public Infrastructure?

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.

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6Degrees Citizen Space 2016: Report #1

The world is a circle, smaller than we think, and we are all related, probably more closely than six degrees of separation. That is the premise behind a new initiative I attended last week: the first gathering of 6DegreesTO Citizen Space. Sponsored by the Institute for Canadian Citizenship, under co-chairs former Governor-General Adrienne Clarkson and John Ralston Saul, the focus was on migration, refugees and the issues of inclusion, exodus and prosperity.

The participants came from across Canada and around the world, a gathering of exceptionally experienced people who are working with the issues in many ways. Three mayors talked about how cities are dealing with inclusion: Naheed Nenshi of Calgary, Madeleine Redfern of Iqaluit, and Rabin Baldewsingh of The Hague… three different perspectives in three different contexts. Mexican political scientist and journalist, Denise Dresser, who has three million followers on her Twitter account, is a high-profile activist in a country which is our NAFTA partner but which we know little about. Author Pico Iyer, an acclaimed travel writer and the author of a recent biography on the Dalai Lama, spoke from the perspective of a perpetual outsider. Senator Ratna Omidvar, founding Executive Director of the Global Diversity Exchange at Ryerson; Eliza Reid, Canadian-born First Lady of Iceland; Doug Saunders, columnist for the Globe and Mail; Kweku Mandela, grandson of Nelson Mandela; Yusuf Muftuoglu, former advisor to past Turkish president Abdullah Gül; James Orbinski from Doctors Without Borders; Ahmed Shihab-Eldin, correspondent for Al Jazeera and frequent commentator on CNN, NBC and BBC… and the list goes on.

Journalists, academics, community organizers, front-line service providers, business leaders, government workers, media types, immigrants who have adapted, and refugees now adapting, to new lives in Canada… all brought to the table particularly well-informed perspectives on migration and diversity. The world has more displaced persons now than since World War II and this reality is projected to continue.

How to respond? What should governments be doing? Businesses? Community groups? Individual citizens? What does Canada bring to the table? Why is Canada considered a world leader in this area? How can we live up to our reputation?

What do migrants bring in return? Increased levels of entrepreneurship. New innovation. Openings to the broader world. Energy and a passionate commitment to success for themselves and others. The 6Degrees Fellows Program generated two substantial reports released at the session. The first: on “New Canadian Entrepreneurs: An Underappreciated Contribution to Canadian Prosperity?” by Bessma Momani and sponsored by the Waterloo-based Centre for International Governance Innovation. The second: “Open for Business: Immigrant/New Canadian Entrepreneurs in Canada” by Ricardo Cohn and Eric Adebayo, with the support of Vancity. Both are available from the Institute for Canadian Citizenship.

The event was held in the exceptionally beautiful Centre for Learning at the Art Gallery of Ontario. This facility is flooded with natural light, has break-out rooms with walls of glass, a large mingling area for meals and mixing, and an auditorium at the foot of a glass staircase which can be used “in the round.” To facilitate discussion, “as if at a dinner table,” all the many participants in the event sat in a circle around a raised centre stage. Some of the experts, called “framers,” sat on the stage; others, called “intervenors,” sat in the first row of the circle. The format was less a panel discussion than a conversation between all of them, with questions, comments and observations from the rest of the participants on the floor. It was a remarkably fruitful format which provided ample scope for the exchange of a range of experience.

One theme was the importance of the language we use to describe events. The truth is that particular language shapes perceptions, that perceptions shape actions and non-actions, and that what happens is often a direct response to how the events are described. The question is: does better language result in better thinking? In an age when the media is no longer limited to professional journalists, when everyone has access on the internet to all the information the world has to offer, and when social media and blogging give a voice to anyone who chooses to use it, how do we encourage an engagement with the issues? A good question. Over the next months, I will return to what I learned at 6Degrees several times. I hope you will find these reports of interest.

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Why Only One Bank NOTE-able Canadian Woman?

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.

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The New Supreme Court of Canada Appointment Process

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.

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You Be The Judge: Of Mike Duffy’s Residency and Housing Claims

To qualify as a Senator for PEI, Mike Duffy had to own property in the province and be “resident in the Province for which he is appointed.” This was a constitutional requirement for the job. Not a resident? No appointment.

As a Senator representing PEI, he received $80,000. over four years in per diem housing claims for costs incurred while in the National Capital Region (NCR) performing his duties as a Senator.

Since “resident” was not defined in the Constitutional Act, nor in any Senate Rules, and was defined differently in different statutes for different purposes, the question became: what does “resident” mean for the purpose of a Senate appointment?

Mike Duffy had owned and lived in a house in Kanata-Ottawa (part of the NCR) since the 1970s. Born and raised in Prince Edward Island, he had bought a cottage in Cavendish, PEI in 1998. He and his wife spent several months every year living in the cottage, typically from the end of April until the end of October. It was not winterized and, in times of major snowfalls, was inaccessible. The plan was to renovate the cottage so that, when he retired, he and his wife could reside there full-time.

Mike Duffy was alert to questions about his residency. He met with the Prime Minister twice in December 2008 before accepting the appointment. He testified that he asked Prime Minister Harper to appoint him as a senator for one of the vacant seats in Ontario. Harper insisted that the only appointment on offer was as a Senator from PEI.

When Duffy asked him about the disputed “residency” issue, Harper advised him “that accepting the appointment as a PEI Senator simply ‘accelerated’ or ‘speeded up’ making the PEI residence the permanent and primary residence. The Prime Minister advised Duffy that, upon appointment as a Senator from PEI, the effect would be “this is now your primary residence. This is… where you live and this is what you represent, the area you represent in the Senate of Canada.” “Upon his appointment, his PEI residence would become the permanent one just as Mr. Duffy and his wife had intended for a decade.” (paras 137-138 Judgment)

The advice of the Prime Minister was reinforced by that of Senate Law Clerk, Mark Audcent, who also said that, as of his appointment, Duffy’s address in PEI became “of prime constitutional importance” going forward. (paras 139, 142, 190-192 Judgment) When the legality of his appointment was questioned in a newspaper article on December 24th, Duffy contacted Kory Teneycke of the PMO about the article and was advised that his PEI residence fully satisfied the constitutional residence requirement. (para 145 Judgment)

On January 6, 2009, he met with Senate Leader and member of the Harper Cabinet, Marjorie LeBreton, and was assured by her that the PEI residence fully qualified, that there was no minimum time requirement to be spent in the residence, and that the newspaper article was “politics” and should be ignored. That same day, he received a written memo from the Senate Leader and her constitutional advisor, Mr. McCreery confirming that his PEI residence qualified him as a PEI resident “… even if he had lived in Ottawa 99% of the time.” (para 146 Judgment)

On January 7, 2009, Senator-to-be Duffy approached Senator Tkachuk, the vice-chair and senior Tory on the Senate Internal Economy Committee and regarded as the ‘guru’ on Senate rules and procedures. He explained about the newspaper article, his owning a residence in PEI and another in Ottawa, and questioned whether he should claim the housing allowance for the NCR property. Senator Tkachuk informed him, without hesitation that, as Senator from PEI, he had the expenses of two houses (property taxes, insurance, hydro) and that he should most definitely claim the NCR housing allowance as a PEI Senator, exactly as other PEI Senators did… that the claims were entirely within the Senate rules, and appropriate… that he must claim per diems, as failure to do so would only raise questions. This advice was consistent with Senator Tkachuk’s reported public comments on December 3, 2012 that “Duffy’s expenses are entirely within the rules;” “many Senators who own houses in Ottawa make similar claims for housing expenses,” and then after staying in Ottawa “all winter long… they go home for the summer.” “Your primary residence is what you say your primary residence is.” (paras 151,152 Judgment)

Having been so advised, Senator Duffy signed his “Primary Residence Declaration” honestly, sincerely and reasonably believing that it was within the rules and consistent with the advice he had received from all the authoritative sources. The Declaration contains the following words: I, the Honourable… member of the Senate for the province of… declare that my primary residence is more than 100 kilometres from Parliament Hill and that I therefore incur additional living expenses while I am in the National Capital Region to carry out my parliamentary functions… the address of my primary residence in the province or territory that I represent is the following… . (paras 147-148 Judgment)

Over the next four years, Senator Duffy and his wife spent $98,292.49 to upgrade and renovate the PEI residence, including winterizing the home, and dealing with foundation and access issues. He did not sell the Kanata house because he would have needed to rent alternative accommodation or to pay for a hotel while in the city. As suggested by Mr. Bayne, “his reasonable decision to retain the Kanata residence as his ‘NCR’ residence does not detract from the fact that the PEI address was now, from his appointment… his primary residence in the Province he represented… .” (para 154 Judgment)

The Crown called none of the people Senator Duffy consulted (Prime Minister Harper, Ray Novak who was present, Kory Teneycke, Senator LeBreton, her constitutional advisor Mr. McCreery, or Senator Tkachuk) to try to refute any of Senator Duffy’s evidence.

A later “travel policy” adopted by the Senate, commencing in April 2013 and applicable in the 2013-2014 fiscal year, required that “primary residence declarations” were to be accompanied with additional criteria of primary residence, the production of a driver’s licence, health card and proof of location of filing one’s income tax return. “As Mr. Bayne submits, the ex post facto addition/imposition of these… indicators of primary residence is cogent, explicit evidence that they were not previously required.” (para 208 Judgment)

Justice Vaillancourt found Senator Duffy not guilty of fraud and breach of trust relating to his residency and housing claims.

If you had been on a jury hearing these charges, what would you have found? If you had been offered a Senate seat in Mike Duffy’s circumstances, would you have accepted the position? If you were told your “primary residence” post-appointment was in PEI, would you have claimed the same NCR housing expenses as did other Senators representing PEI? 

For Prime Minister Harper’s response, see the comments of his lawyer Robert Staley in “This was not Harper vs. Duffy” in this morning’s National Post.

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The Heart of the Mike Duffy Judgment

So, Mike Duffy was acquitted on all 31 charges. The CBC has posted a link to the full text of Justice Vaillancourt’s decision. On my legal blog, Re-View from the Bench, I have posted a link to the CanLII decision on the official Ontario Court of Justice website. I have also prepared an unofficial Index to Justice Vaillancourt’s decision which may help you access what most interests you. This is a lengthy, complex decision that merits close attention.

At the end of the trial, Justice Vaillancourt asked for written submissions from counsel. Many judges do the same thing when the evidence has been heard in a chopped-up trial over many months. This trial started on April 7th last year, and concluded for judgment on February 23rd this year, a total of 60 days of sittings over 11 months.

Justice Vaillancourt’s 308-page, single-spaced judgment, released last Thursday, sets out in detail the evidence and arguments of counsel, both generally and with respect to each set of charges. He found it convenient to summarize what he heard and read, using counsel’s submissions at length. His response to those submissions, interspersed throughout the text and found in his introduction and conclusions, is concise and to the point. That we have available to us all the evidence that the Court considered, and the arguments put forth by counsel, allows us to understand why he made the findings he did. That is the purpose of the duty on judges to give reasons for their decisions.

There are several keys to this decision. The first is Justice Vaillancourt’s finding that Senator Duffy was “an overall credible witness.” (para 69) The second is his finding that, with respect to his residency and housing claims, “Senator Duffy honestly and reasonably believed and relied on the advice he received regarding his appointment and he acted upon it” (para 214). There was no definition of the meaning of “primary residence” in the Senate Administration Rules at the time, and what Duffy did was common practice among the senators. That being the case, there was no proof that these claims were fraudulent or in breach of his trust as a Senator.

This is the essential background for the part of the decision which has most galvanized public attention: the judge’s findings about the three charges of bribery, fraud on the government, and breach of trust relating to Senator Duffy’s accepting $90,172.24 originating from Prime Minister Harper’s Chief of Staff, Nigel Wright. Beginning at paragraph 889, you can read all the details of the evidence heard and the submissions made on these charges. It is a fascinating exposé, blow-by-blow, of what actually happened two years ago when “the Duffy scandal” first broke and the PMO went into crisis mode to contain it.

The Crown theory was that Senator Duffy committed the offences because his complaint that he didn’t have the money to pay the disputed residency and housing claims was essentially a request for payment of those claims, and because he accepted the money. The Defence theory was that the PMO knew they were asking (“basically forcing”) him to pay money he probably didn’t owe, but that they needed him to buy into the “mistake and repay strategy” to calm the political storm created by “the Duffy problem” that wouldn’t go away.

Justice Vaillancourt agreed with Mr. Bayne for the defence. He was satisfied from all the evidence (including the emails, the evidence of the crown witnesses, and of Senator Duffy) that the PMO concocted a “mistake and repay scenario” for their own political purposes. When Senator Duffy resisted and wanted to put his position before the independent Senate audit going on at the time, they used “a two-pronged approach” (the first, threats and intimidation; the second, an appeal to “do the right thing”) to force him into line. Vaillancourt found that Duffy’s taking the money was not a true acceptance, was not done voluntarily, and conferred on him no real benefit. 

It is highly unusual for a judge to use the flamboyant language used by Justice Vaillancourt to describe “the inner workings of the PMO: “ruthless efficiency;” “The political, covert, relentless unfolding of events… mind boggling and shocking;” “The precision and planning would make any military commander proud;” “in the context of a democratic society, the plotting… unacceptable;” “ordering senior members of the Senate around as if they were mere pawns on a chessboard;” and his implicit finding that “Senator Duffy was just another piece on the chessboard when it came to Mr. Wright’s $90,172.24 cheque.” The great bulk of the decision is couched in the heavy, sedate language of lawyers. His Honour is writing for the litigants and for the public at large. He cannot be criticized if he used language that would break up the monotony of a detailed decision and help the public understand, and really appreciate in a visceral way, what he found and why. 

I am planning a series of posts on the Mike Duffy decision. The topics will include: the issues with respect to Mike Duffy’s residency and housing claims, Mike Duffy’s travel expenses, Mike Duffy’s personal service expenses, the distinction between criminal and administrative review, and Mike Duffy’s trial as political theatre. This has been a fascinating episode in Canadian political and legal history. Stay tuned.

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