Gaming it out - Macleans.ca
 

Gaming it out


 

Susan Delacourt wonders if the detainee document question currently being contemplated by the Speaker won’t ultimately end up with the Supreme Court.

[REDACTED] I wonder—without, mind you, having yet consulted anyone who knows about such things—whether the Supreme Court, in a scenario like the one I referred to a couple of weeks ago, might then pass it on to the Governor General. And then I wonder who the Governor General will be by then. And then I wonder whether we’d all be comfortable with Wayne Gretzky making that decision. [REDACTED]

After thinking about what I wrote here for a bit—Parliament refers the matter to the Supreme Court, Supreme Court refers it to the Governor General, that Governor General is Wayne Gretzky, the whole matter is settled in a shootout—I’m less convinced of my own fanciful theorizing. Apologies. I’ve referred the matter to a more learned mind.

In the meantime, you can review the Supreme Court’s decision in New Brunswick Broadcasting Co. v. Nova Scotia. Neil Morrison has already noted the irony as it applies to this particular predicament.


 

Gaming it out

  1. I seem to recall the idea was that the matter couldn't be appealed and would rest with the speaker alone, but I cannot recall the source of the idea.

  2. Once the Speaker makes a ruling, the House can move a contempt motion. Once the House finds a government in contempt, I'm not sure how that's not then automatically a vote of no-confidence.

      • I'm not sure how a contempt motion against one or more members of the Cabinet is not automatically a vote of no-confidence in the Cabinet and, therefore, the entire government. I mean, I'm not sure how a government can keep governing if one or more of its Cabinet members are being openly humiliated in the House.

  3. I tend to disagree.. I'm not certain about its benevolence.

      • Just read your blog, it is official, I am a fan!!!

  4. The supreme court will not accept such a question. From the online texts from the House of Commons itself, questions of privilege, by their very nature, belong to the House. If the opposition allowed such a maneuver, it would require a weakness so manifest that they would likely have already backpedalled to such a degree that the referral would be moot.

  5. Yeah, and I *wonder* if I remembered to put on underwear this morning.

    • Semper ubi sub "ubi".

  6. Wow that's a crazy circle there Aaron. I sure hope our fate parliamentary system isn't left in the hands of (any) GG so newly appointed.

    • Your point is well taken but seeing as we've only had two major incidents in the past 70 years or so and they've been far out of the ordinary course of business, it doesn't seem like time on the job really matters. YOu can probably live a lifetime building the appropriate knowledge, but actual time holding the title wouldn't mean that much.

  7. Isn't the only automatic non-confidence vote a supply bill?

    • That is 100% the Prime Minister's call.
      The govt can designate the killing of the gun registry a confidence vote, is PMSH so desires.

      Remember when the House voted no confidence in his govt, and Martin declared it NOT a vote of confidence….

      • No, I don't actually remember that. Can you point out where in Hansard this vote took place?

  8. Why is everyone looking for a way to let the Speaker off the hook? What's he (and hsi retinue of clerks and legal advisors) for if he can't rule on a fundamental issue about the nature of parliament? Time to step up or step down.

  9. We don't live in a "separation of powers" system like the US, and I've always had the sense that in Canada, Parliamentary supremacy ultimately supersedes that of the Supreme Court. Am I off base?

  10. Scary thought.

    Well the GG has refused to do her job twice now, so it wouldn't surprise me if the Speaker did as well. Our country seems to be in wimp mode lately.

    I'm amazed this is even a question though.. 'Parliament reigns supreme' has been settled for centuries.

    • So, if the GG does not rule according to your standard of reasoning, she is wrong? Emily, Emily, where to begin trying to expain thing to you, specially this "thing" we call reasoning.

      • Thank you, FVerhoeven. I don't think she get's it. No offense Emily, but this is your point of view and is just not fair to accuse the GG of not doing her job, she did, you just don't happen to agree with it!

  11. What was her job, and what would have been the Constitutional reasons for refusing either request for prorogation?

  12. Aaron, what on earth are you talking about? There is no precedent for the Supreme Court ever punting anything to the governor general, and the article you link makes no mention of the Supreme Court.

    I agree with you that the GG is and should be more than a figurehead but the example you made up above is just crazy talk.

    • Exactly. The idea is ludicrous. GGs lay cornerstones and tour Central Africa, not make decisions (except vy rarely). Nor should they.

    • Of course is crazy talk, William Shatner is the right choice haven't you voted on Facebook yet? You know, Facebook that networking website is all the rage right now, you should try it! : D

  13. Sounds to me like someone's had their nose in an advance copy of the Speaker's ruling.

    • I have a feeling he is going to go with Government too!!

  14. We've been thruough this before, and you are well aware of the answers.

  15. From my understanding, the motion is not one of contempt against the government in general, it's contempt specifically against Peter MacKay, Rob Nicholson, and Lawrence Cannon.

    A contempt motion certainly could be perceived as "no confidence" in these individuals; to what extent that should mean "no confidence" in the government in general is probably open to interpretation.

    • Precisely.

  16. Don't keep us in suspense. Did you or didn't you?

    • No. *Please* leave us in suspense.

  17. Good question. Here is an excerpt from their own book:
    "A complaint on a matter of privilege must satisfy two conditions before it can be accorded precedence over the Orders of the Day. First, the Speaker must be convinced that a prima facie case of breach of privilege has been made and, second, the matter must be raised at the earliest opportunity. If the Speaker feels that these two conditions have been met, the Speaker informs the House that, in his or her opinion, this matter is entitled to take precedence over the notices of motions and Orders of the Day standing on the Order Paper. The Speaker's ruling does not extend to deciding whether a breach of privilege has in fact been committed. This is a matter which can only be decided by the House itself."

    All he appears to be asked to do is to say if it looks like the issue involves the privileges of the House, not to make a final judgement.

    • Precisely.

      And by "decided by the House itself" what it means is it goes to committee and then either dies or a motion comes forward from committee to be voted on the by the House.

  18. If you Google parliamentary supremacy I think it says you only have that specific system if you don't have a court or other body that can override your laws. We certainly have that here. The SC can declare a law unconstitutional for violating jurisdiction or the Charter, for example. It's a technical distinction for that specific phrase. However, our House of Commons is arguably supreme over the Government in that we have responsible government.

  19. No, please remind us!

  20. The SCoC has a mandate to do exactly that, settle disputes about privilege, and it has done so in the past, just not on this question.
    Our Constitution gave the courts exactly that power.

    • Try as I might, I can't find the supreme court in our constitution,much less its jurisdiction.

      From the links Aaron supplied and the House of Commons site, I think the courts accepted a modified role when asked and that the privileges are assessed on a limited basis. However, I would appreciate learning otherwise if you have any links to share.

  21. The GG has all the powers of the queen, being the queen's representative in Canada. She is 'standing in' for the Queen, legally. She can refuse to dissove Parliament under the reserve powers of the Lascelles Principles.

  22. That last thing never happened.

  23. When did the House vote no confidence and Martin ignored it, wilson.

    Please enlighten us because no one else seems to be aware of this unprecedented, and previously unknown, moment in Parliamentary history.

  24. Could both you and Be_rad provide any link to support your assertions, please.

    Wilson never does, so I'm hoping you can Be_rad.

    • Happily. Fromhttp://www2.parl.gc.ca/procedure-book-livre/Document.aspx?sbdid=ABBC077A-6DD8-4FBE-A29A-3F73554E63AA&sbpid=E5B86AEE-7D83-4E60-9584-85B89B32ADFA&Language=E&Mode=1 we learn that "Since parliamentary privileges are rooted in the Constitution, courts may determine the existence and scope of a claimed privilege. However, recognizing that a finding of the existence of a privilege provides immunity from judicial oversight, the courts may not look at the exercise of any privilege or at any matter that falls within privilege."

      So wilson as usual is partially right. Courts apparently can determine if a privilege exists. But if it does, it seems it has to back way off. The question then is if the House of Commons is allowed to hold the Government to account for disobeying its orders. I guess in my mind that seems like a no brainer.

      • You gotta love Wilson!!

        • I read more of the text Ifound. Here's a corker:"The Speaker's role ought to be explained, and it is that the issue put before the Speaker is not a finding of fact, it is simply whether on first impression the issue that is before the House warrants priority consideration over all other matters, all other orders of the day that are before the House"

          From the sounds of it, the Speaker's decision isn't even a substantive one. It just helps the House of Commons decide if the question has enough merit according to the rules to be considered seriously. It seems to be a very low test and very much to be a part of how the House of Commons runs itself. How the House of Commons runs itself is one of its key privileges, according to what you read here -http://www2.parl.gc.ca/procedure-book-livre/Document.aspx?sbdid=ABBC077A-6DD8-4FBE-A29A-3F73554E63AA&sbpid=00578540-4AC4-4004-BBD5-4F1110B9DD73&Language=E&Mode=1

  25. I think WDM was responding to the assertion that the GG refused to do her job.

    Your response confirms that she "can" refuse, i.e. she has the discretion. In proroguing or not, she also has that discretion. Like the undemocratic decision to prorogue Parliament 3 times in 3 years or not, she is not "not doing her job" just because she agreed with Harper.

  26. "In May, Parliament passed a motion asking one of its committees to express a lack of confidence in the government. The Liberals dismissed this as a procedural matter, causing some to accuse them of governing unlawfully by ignoring parliamentary tradition. The Conservatives and Bloc interpreted it as a vote of no confidence, and they combined their votes to shut down the House of Commons early for two days in a row. The Speaker of the House of Commons later ruled in favour of the Liberal stance."

    http://en.wikipedia.org/wiki/Paul_Martin#2005_bud

  27. Technically, the House never voted on a no-confidence motion. But if memory serves, Harper did move a no-confidence amendment to a Committee Report Concurrence Motion. He did it to pressure Martin to call an election, which Martin then refused to recognize, etc etc etc

  28. The conservatives and bloc interpreted it incorrectly as affirmed by the speaker at the time, End of story!

  29. Since he asked for the progrogue twice because he was in political trouble, and had lost the confidence of the House, the answer should have been 'no'.

    It is her job to protect democracy and our country from political whims and games.

    We need a GG, not a rubber stamp.

    And when Harper has gotten to the point of just phoning it in, the GG has indeed become a rubber stamp.

  30. Precisely.

    The House did not, as wilson suggest, vote no confidence.

    A committee passed a report in which a no confidence measure was added.

    Never in the history of any Parliament anywhere has a committee vote been construed as a confidence motion.

    The Conservatives were playing procedural games now and we should have considered that a foreshadowing of worse to come.

  31. That may be the case morally, but as I understand it, in law, the motions are separate. One would certainly pave the way for the other, though…

  32. On that we partially agree.

    Harper has shown contempt for pretty much every Canadian institution: Parliament, the GG, Parliamentary Committees, civil servants, independent oversight bodies, courts and judges (calling them all Liberal stooges), our senate and senators, law enforcement officers, military.

    But a GG decision to go against the advice of the PM is a confidence measure so it would, by constitutional convention, have required an election.

  33. He never lost the confidence of the House in any tangible sense.

  34. No, it would have required her to find someone else who commanded the confidence of the House.

    An election wasn't necessary.

    That's the whole point of what the Queen is preparing for now in the event of a hung parliament in the UK.

  35. The entire country was aware he had lost the confidence of the House when the Coalition came into being.

    But any excuse will do to avoid following the rules I suppose.

    • In order to lose confidence of the House, you have to lose a confidence vote. No matter how big a slam dunk it may be ahead of time, the confidence of the House is not lost, until a vote prescribing just that happens on the floor of the House.

    • Emily, I propose you do some further studying regarding democracy. The coalition, as proposed, could only have been with the inclusion of the BQ. Without the BQ's signature on the coaltion agreement, there could not have been a coalition possible. I reiterate: without the BQ" signature, a coaltion agreement COULD NOT have been possible.

      I, and the majority of Canadians, were extremely happy that Harper would not let a separatist party rule over our collective government. BTW, it is not Harper who mistakenly holds the BQ to be a separatist party, the BQ proclaims this at every opportunity. Please, don't think you have the workings of a democracy figured out by denying the simplest of facts.

      Or Emily, could it be that you do not believe that the BQ is a separatist party when they so loudly tell us themselves? Tell us what you believe…..

  36. All right. So I thought about it for an hour and reread Brian Slattery's essay and I started to doubt my back-of-the-napkin theorizing. And so I've redacted it. So there.

    Please don't though let that stop anyone from doing their own back-of-the-napkin theorizing. We must pass the idle time until the Speaker's ruling somehow.

    • Unless you're Peter Mackay, whose problem done enough back of the napkin theorizing to last a lifetime.

  37. We must pass the idle time until the Speaker's ruling somehow.

    Agreed. Perhaps we could spend some time looking at the Liberals' hidden agenda to screw the west, based on the paid advice they get from the CBC's pollster, Frank Graves.

    Or we might wonder whether a supposedly non-partisan, taxpayer-funded news organization ought to be referring to the Conservative lead in the polls as "stubborn".

    Or whether they should even be using taxpayer money to hire a pollster that councils the Liberal Party to screw the "cranky old white men in Alberta".

    Discuss amongst yourselves.

    • John, your point about his connections to both the CBC and the LPC aside, I would hardly say based off Martin's article that the Liberals are being advised to "screw" the west. They've been advised to stop worrying so much about losing support in the west if they decide to pursue a left-of-centre agenda. To say that the Liberals now have some sort of "hidden agenda" to "screw" the west is a stretch, at best. It's like trying to say the Conservatives have some sort of hidden agenda to screw the east.

      • "It's like trying to say the Conservatives have some sort of hidden agenda to screw the east. "

        Well, eh, yeah, THAT has been the LPC slogan for the past decade, and it has worked so well that now they will heap on top of it that outside of central Canada, everyone's a nutcase.

        Why worry about Conservative attack adds, if the subtle underhanded brainwashing of the Liberals works so much better? You see, you don't see it as negative attacking and so it won't count. Lawrence Martin is very aware of how it all works. He just loves to pile it on and on. He no longer even tries to make reasonable arguments within his opinion pieces. It's all or nothing for him too now. Waddayou think Chretien has done for Lawrence Martin's reputation? Gotta uphold one's reputation, not?

  38. Discuss amongst yourselves

    I read this as "disgust among yourselves."

    After all, why discuss things that come from a pollster's mouth when they have no statistical foundation in their assertion?

    • Yeah, right, pollsters having no statistical foundation in their assertion, except, of course, that all kind of unfoundational poll results appear in the news ad nauseum, and except, of course, that many blind followers will hold them for unfettered truth speaking.

      If the public at large wouldn't be so gullible, I wouldn't worry so much about what men such as Graves have to say for themselves. But the public at large is very gullible and men like Frank Graves KNOW it. That's the point!

      • See, there are pollsters out there who don't try to speak outside that which has statistical foundation. I'd like to hear from them more often.

        I'd also like to see journalists who have all this raw data land in their laps learn to analyze it well. Editorializing and declaring causality where there is none is foolish, and bound to result in having to backtrack and be perpetually on the defensive.

  39. And again, I will ask the napkin narrators:

    How can an MP like Dennis Lee proclaim that Parliamentarty power must reign surpreme when he himself picks and chooses when such power should be exercised?

    On the one hand Derek Lee wants Parliament to have full say on the detainee issue, and on the other hand Derek Lee stands in wings of the House when a vote regarding foreign aid to women is being called for. MP's like Derek Lee are completely off base then they suggest that Parliament is supreme if they themselves do not uphold such belief.

    Come on, media, ask Derek Lee the easy questions: Does he belief that Parliament is really supreme, and if he answers yes, then ask hiim why he choose to stand in the hallway when a vote was being called for……..ask him, and let's hear what all this talk of democracy is about.

    • The answer is Lee believes Parliament reigns supreme and that he was a chickensh*t for not showing up for that particular vote. Not mutually exclusive.

  40. Of course it is mutually exclusive!

    Or, are you trying to convince me that the pick and choose selection can be made by men such as Derek Lee, but not by men such as Stephen Harper?

    You mean to convince me that the game of democracy comes with rules for some of the players but not for others?

    I understand why the MSM won't ask these simpe questions of Mr.Lee. They (MSM) themselves cannot explain the difference, and therefore better to keep it under wraps.

    I, for one, am tired of these practices where one is not let off the hook (Harper) by someone else's getting let off the hook.

    Is this so difficult to grasp for people?

    • Did the house pass a motion requiring all MPs present to vote?
      No?
      Then voting is not a requirement of the house. Thus, if an individual chooses not to vote, they are not violating or even weakening the supremacy of Parliament.

      Now, they are certainly weakening their own voice in Parliament, and voting may well be something that we require of our representatives, and perhaps his constituents will punish him for that when the time comes. But that's a different matter, and not mutually exclusive at all.

      It's really not so difficult to grasp for people who haven't let their ideology blind them to reality.

      • Thwin, you state:"Did the house pass a motion requiring all MPs present to vote?
        No?
        Then voting is not a requirement of the house. Thus, if an individual chooses not to vote, they are not violating or even weakening the supremacy of Parliament. "
        ————————————————————–

        And so, am I correct in assuming (and please correct me if I'm wrong in my assumption) that you find the picking and choosing of when to vote on particular business in the House, to be at MP's discretion?
        Because if that's what you assume, the House would in fact not be supreme but the elected members of the House doing the picking and choosing, would be surpreme.

        And that is my point exactly. Why would Derek Lee's rule of picking and choosing be valid if he himself accuses the PM (and perhaps others) of not being able to do the picking and choosing in turn? They are all members of parliament, after all.

        So, what, according to you, is supreme: the House or the members occupying the House?

        • Your problem is that you're defining the will of the House as the will of all the MPs. But it's not. The will of the House is the expression of the majority of votes of the MPs present.

          The will of the House is supreme. Whether individual members are part of that will or not is irrelevant — they are bound by the decisions made there. If they choose not to put their voice into that decision, that in no manner makes them "supreme" to the House, it makes them stupid, and hopefully their constituents will punish them for that.

          The difference between the two is that the PM is not able to pick and choose to do something *against* the will of the House. In this case, that will has been expressed as a requirement to provide the unredacted document. Derek Lee not voting is not against the will of the house. The government not providing unredacted documents is against the will of the House.

          • Ok, so you say the House is supreme by the will of the majority, yet, you also say "Whether individual members are part of that will or not is irrelevant — they are bound by the decisions made there."

            I truly cannot follow your way of reasoning. Either the members have a say or they don't. And if they do have a say then should they be allowed to pick and choose when to have a say? And if they are allowed to pick and choose, should all members then be allowed to pick and choose or just a few of them? Or just some of the time?

            Now, not releasing the full detainee tranfer files is, of course, a decision by the government (an executive decision as opposed to a legislative body's decision), and so the main dispute is between the supremety of the House versus the executive power within democratic workings.

  41. Hell, this country we call Canada didn't even have the guts to keep decisions regarding SSM within the House. IT too was referred to the SCC rather than dealing with it within the House.

    So what exactly is Susan Delacourt lamenting about?

    Traditions? Ask the Liberals how they feel about traditions……

    • Agreed, it was cowardly to refer the SSM bill to the Supreme Court first in order to get cover for passing it, but your ignoring that in the end that's exactly what happened– a bill recognizing SSMs was passed. By MPs. In the House of Commons.

      • But the point is, of course, the House DID NOT have the gusto to do the legislating first, before the SCC had it;s suggestions presented. Remember, there never was a ruling from the SCC regarding SSM, just opinion.

        The point is, of course, that when the Liberal party must stand so high on it's horses to find Parliament to reign supreme, then why be so terribly inconsistent about it.

        It's not Harper who is the inconsistent one. History points in his opinion's direction were he to fight it all the way to the SCC.

  42. Wherry, I think Iacobucci has already spoken to this in a previous life as a supreme court justice:

    In summary, it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional. The courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege.
    http://www.cbc.ca/politics/insidepolitics/2010/03

    • sea_n_mountain, I went to the site but couldn't seem to find the quote you're referring to. The site comes up "Sorry, we can't find the page you requested. " Any suggestions. I would like to read it or watch it, whichever.