September 2016 - Loonie Politics

It's almost embarrassing, watching someone bereft of self-awareness blunder their way back into the public eye. So it is with Chris Alexander, the once-promising former-minister who wants to try his hand at leading the Conservative Party.

Alexander is expected to join the race because he feels the current group of candidates was "uninspiring," according to a BuzzFeed report last week. Which is a fun bit of irony, coming from a man so lacking in inspiration.

It didn't have to be this way. Alexander came on the scene in 2011 a shining star of the Conservative caucus. He had already done a term as ambassador to Afghanistan, and had a long trail of awards and plaudits following him into the Commons.

Unfortunately for Alexander, it was upon entering our hallowed chamber of democratic debate all that hope and promise whittled away each time he opened his mouth. It turned out that upon gaining elected office, Alexander was more than happy to play the role of partisan robot, with a demeanour surprisingly similar to Paul Calandra.

Combative, snippy, and more than a little condescending, Alexander's most famous moments were not ones high-minded oratory, but partisan blunders a marginally skilled politician could have easily avoided.

Take, for example, the time where he tried to claim that only under Liberal governments did Canada have racist immigration laws. This wasn't in the vicinity of the truth. As Paul Wells pointed out, Canada imposed a head tax on Chinese immigrants during the government of the patron saint of Canadian conservativism, Sir John A Macdonald.

Then there's this disastrous interview on CBC's Power and Politics where he inexplicably claimed the media had not covered the Syrian refugee crisis up until that point. It of course had been covering if for months, years even. Saying something so easily disprovable â€” lying, if you will â€” is not something a smart, skilled politician does.

This is especially true when you're the immigration minister and the reason you're on television is because the photograph of a refugee child, Alan Kurdi, sprawled dead on a beach, is on front pages around the world. A child whose family, it would be revealed very soon, had sent a letter to your office asking to help bring the family to Canada.

So, Alexander paused his campaign to head back to Ottawa and do some ministering, and some more television.

He appeared on CTV's Power Play to talk about the government's efforts to bring some of the millions of refugees flooding out of Syria.

But he kept falling back on the official resettlement figures of those brought to countries directly from UN-sanctioned refugee camps in the region. He said Canada was leading the world in resettlement. Which was technically true in a very narrow sense, but not a reflection of reality. Try telling Greece that Canada is the most generous country giving homes to refugees, when thousands of them are showing up their shores, unauthorized but nevertheless there, every week.

A brief glimmer of his promise was on display, too. He talks with some passion about getting into public service to try and affect real change in the lives of people. He tells host Don Martin about how he and his wife reacted to the photo of Kurdi and how it broke their hearts. They'd lived in the region. She'd visited Syria. And he showed a hint of real empathy.

But inevitably he'd circle back to shoehorn in a variety of talking points, shifting a real human moment into yet another exercise of robotic sloganeering.

Ah, but the worst was yet to come. Alexander played a leading role in the nadir of the Conservative campaign. Alongside Kellie Leitch, another leadership hopeful, he pitched a hotline for people to report instances of "barbaric cultural practices" to the RCMP. It was unusual for all kinds of reasons, not least of which that dog whistles aren't usually accompanied by a 1-800 number.

Whatever its intent, the tip line cemented the view that the Tories were ginning up public fear of The Other, and Alexander was its chief pitchman.

Now, some of the blame for Alexander's lacklustre public persona can no doubt be blamed on rigid demands of sitting in Stephen Harper's caucus. But you can only feel so bad for a company man. At a certain point, just doing your job isn't an excuse. If you've really got a spine, you should use it now and then to stand up for something.

So yes, Alexander is right, the list of candidates vying for the Tory leadership is underwhelming. But his four years in government make it clear he's not the one to fix that.

Photo Credit: CBC News

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.

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A Public Policy Forum report on how to navigate a newly independent Senate by former senators Hugh Segal and Michael Kirby was released to a bit of fanfare late last week, with its key feature being the idea that the Senate be reorganized from party lines, to the regional lines by which its seats are allocated. While there was certainly some good intention behind the report, most of the suggestions are solutions in search of problems.

Much of what was contained in the report was first raised in the Senate by Liberal-turned-independent Senator Pierrette Ringuette in March 2014, and some of them were part of the modernization discussions led by Senators Green and Massicotte last year. Many of the ideas were around things like electing the Senate Speaker and reforming Question Period, but this notion about breaking up the parties and organizing on a regional basis has captured a few imaginations in a fairly bewildering way. The current antipathy toward partisan affiliation in the Senate is a problem that is making people turn to unrealistic suggestions, having diagnosed the wrong problem.

Partisanship per se has never been the problem in the Senate. Where problems have arisen, particularly in recent years, has been when the Senate was used by the PMO for its own ends rather than the purpose for what the Senate was intended. Stephen Harper's disdain for the institution meant that he largely left it alone for the first couple of years of his government (despite bullying the Liberal majority in the chamber on occasion), but it was after Harper's panic appointment of 19 new senators in the wake of the 2008 prorogation crisis where things went off the rails. One fifth of the new chamber came in being told that they were being whipped, and the majority of the Conservative senators who predated them acquiesced and went along with it.

Because the Senate has operated as this kind of duopoly of one party being in power, the other waiting to be in power next, it meant that the decisions they took tended to be more self-serving, particularly because what the current party in power did, the one that would be in power again in the future would also be able to do. This started to change a few years ago when new, tougher rules started coming in after increased scrutiny and disclosures, but with the number of unaligned senators soon to outpace the size of either partisan caucus, the duopoly is about to be broken.

Breaking that power structure is at the core of the Segal-Kirby report, but what replaces it is where the contention lies. While introducing a third quasi-caucus of independents who select their own representation when it comes to committee selection and representation on the Internal Economy Committee is largely what the Independent Working Group does appear to be pushing for, Segal and Kirby suggest that what should happen instead is that the Senate be broken into four regional caucuses (Newfoundland's region being lumped in with the Maritimes while the three territories would each choose a region to affiliate themselves with) "for administrative purposes" and that there be some kind of council of elders from each regional caucus that would choose among themselves how committee assignments are doled out and so on.

The problem with this proposal is not only the kind of insularity that it breeds, but that it actively works against the way that federalist institutions in this country have been run for 149 years. Whether it's within party caucuses, Cabinet, the Supreme Court of Canada or other national bodies, the fact that there are representatives from each region helps provide national perspective from within rather than without. While the intent of regional caucuses may simply be for administrative purposes, with issue-specific groupings proposed on an ad-hoc basis, it nevertheless has a balkanizing air that has the very real potential of becoming the overriding consideration for the Senate as a whole, with the very real possibility of starting to pit regions against each other over petty differences. It wasn't the intent of the Founding Fathers to operate a country in this way, despite what Segal and Kirby surmise in the way the Senate was devised, and doesn't address the actual problems that led to the current crisis of confidence in the chamber.

Most of the other suggestions, while well-intentioned, are also problematic. Electing the Senate Speaker would require a constitutional change as unlike the Commons Speaker, the Senate Speaker is the titular head of Parliament and has very real diplomatic and protocol responsibilities that would require him or her to have the confidence of the government of the day. Reforming Question Period to ask questions of committee chairs or of scheduling matters would deprive senators of their ability to hold the government to account by way of the Government Leader in the Senate (though they do like the recent addition of having a ministerial QP appearance, which has been a beneficial addition). The suggestion that voluntarily limiting the Senate's absolute veto power to one of a six-month suspensive veto deprives an institution built as a check on the powers of a prime minister with a majority of the seats in the Commons of a crucial tool (and just because Westminster did this a century ago has little bearing on the context of the Canadian situation given that the Lords and the Canadian Senate are vastly different institutions). The suggestion of dropping the minimum age for appointment from 30 makes no sense considering that appointments are until age 75 (with good reason). If anything, the argument should be for raising the minimum age so as to keep the temptation for making too-young appointments at bay.

The report has sparked some discussion, particularly amongst the current crop of independent senators, as the Senate Modernization Committee's report is coming due. Nevertheless, the kneejerk nature of most of the proposals, going against history and the constitution, is concerning, and needs serious reflection.

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There are few things in politics that bother me more than foolish wedge politics standing in the way of meaningful progress.

This week, the House of Commons votes at second reading on Bill C246, The Modernising Animal Protections Act, proposed by east-end Toronto MP Nathaniel Erskine-Smith. It's a simple and sensible bill, but some Conservative MPs see the chance to make a political issue to rile up their base.

Erskine-Smith's bill proposes to make essentially three changes to Canadian law on animal protections. First, the bill proposes to finally ban shark finning, something various Canadian cities have done already. Secondly, the bill proposes to ban the sale of dog and cat fur, something any pet owner would be surprised to know isn't already banned. And, thirdly, Erskine-Smith's bill seeks to ensure animals are protected from harm by their owners' negiligence.

This is common-sense type stuff, the sort of longstanding issues that simple, sensible reforms can tackle. Erskine-Smith points out that animals would remain a person's property, but obviously not in the same sense as a chair. You can dispose of a chair on a campfire. No Canadian would say the same of the family dog.

But rather than debating the merits of the bill at committee, some Conservative MPs are seeking to stir up trouble. With little more than "slippery slope" rhetorical fallacies, some Conservatives are attempting to say that protections for animals from negligence could lead to crackdowns on hunting, angling and farming. This is utter nonsense, but is symptomatic of the kind of mindless politicking we see too often.

It's easy to see why some Conservative MPs see the chance to spin a yarn to their hunting, farming and fishing constituents. Most Canadians don't pay attention to politics in general, much less to private members' bills. But tell a micro-targeted population â€” such as a hunting club or farming associations â€” that a vegan, Toronto MP wants to extend protections to animals and maybe it might just someday lead to infringing on hunting or farming, so please help out by donating $50 to fight back, and you've got yourself a potentially powerful fundraising campaign.

The Conservatives are masters of this simplistic exploitation of the low-information voter. Indeed, their fundraising apparatus is based on this "Liberals are doing something you won't believe so donate now" approach. Often, facts are irrelevant or are glossed over in the interests of the broader narrative. Lest people think I'm unfairly picking on the Conservatives, I will readily stipulate that Liberals and NDPers do it too, in their own way.

Ultimately, one can only hope that the Liberal government, rather than cowing to this Conservative slippery slope simplicity, will vote for Erskine-Smith's reasonable bill. If some Conservatives can succeed in scaring the Liberals off of doing the right thing with such a puerile argument, our democracy is weaker than we like to think.
The bill in question is one worth defending, and it is in the defence of principles that we can correct such mischaracterisations and push back on the attempt to dumb down our national discourse. Canadian politics is, fortunately, not yet as polarised as American politics, where conservatives are willing to vote for a bigoted, misogynistic, philandering, wannabe despot simply because they cannot countenance voting for a Democrat.

Indeed, the last federal election campaign in Canada was one of Justin Trudeau putting his unique political talents towards persuading Canadians certain sacred cows are worth slaying (apologies for that metaphor in the context of a discussion of animal protection, but I couldn't resist the idiom).

Just because some Conservative MPs can spin yarns about a bill does not mean the government should fear supporting the bill. If anything, this bill represents a chance to sayâ€”to urban and rural Canadians alikeâ€”we will ensure fair, prudent protections for animals in this country, and those Conservative MPs who would trivialise this debate are unworthy of the type of discourse we expect in our democracy.

The Liberal government should get behind Erskine-Smith's bill C246. It's the right thing to do, and it would show that our politics can still allow for a full legislative debate despite political efforts to dumb it down to the hundred-word fundraising pitch.

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On the last day of the Blacklock's v AGC trial in the middle of plaintiff's counsel Yavar Hameed's closing arguments, Judge Barnes intervened: "When I read the terms and conditions I was confused."

Justice then pointed out that Blacklock's Reporter's web page on copyright states that a subscriber can use the copy for "personal or non-commercial use." He then posed the question why Sandra Marsden, President of the Canadian Sugar Institute, shouldn't have had the right under its terms and conditions to share a couple of Blacklock's articles pertaining to Finance Canada with Patrick Halley, an employee at the department, as it could fall under "non-commercial use", thus waiving Blacklock's claim to copyright. If Judge Barnes comes to this conclusion in his ruling it would void the claim that the copy Halley distributed was infringed.

Hameed rebutted that it wasn't for a non-commercial use and Patrick Halley didn't just read it, but also distributed to several other employees within the department. He stressed that Blacklock's wasn't misusing its copyright and that their "material has a value [and] it has been shared."

Hameed focused primarily on the use of Halley, and argued that "distribution as part of the use" was an unfair dealing with the news site's material.

Plaintiff's counsel questioned the validity that it was "research" purposes that all of the defendants were using the articles for. He also claimed that the onus to prove that all of the dealings were fair lies on the defendant to prove.

At the end of his closing argument Hameed discussed that the plaintiff was seeking the cost of a bulk subscription to Blacklock's for all of Finance at $17,816.71.

At one point during Hameed's arguing of costs, Judge Barnes suggested that the amount may be "inflated" and "large". Judge Barnes suggested the cost may be much lower, since it wasn't department-wide distribution, meaning it was only worth six single subscriptions in the evaluation of several hundred dollars.

Judge Barnes briefly touched on paywalls and how Blacklock's strict paywall cuts off all outside access to it's content and the right to read. "The paywall is a de facto barrier. If someone wants to get the article there isn't anywhere else to go. If you really want to get it you have to pay. It is a real barrier in that sense."

Hameed also referenced former cases to argue that Finance's use of Blacklock's content was unfair because the defendants did nothing to limit the circulation of the articles.

"Each user was doing research. That is an onus for the defendant to show. Maybe it did go downstream," said Hameed.

"So every time you are sent an article you have to find out if it is copyright protected?" said Judge Barnes. "Millions of times a day copyright material is probably shared in this country."

Judge Barnes also suggested that "some discreet distribution" could be considered fair dealing and posed the question â€” should a news service that misquoted the state have the right to protect the material in question?

Hameed continually returned to the question of Finance not taking precautions to limit distribution of the two articles: "Was their leakage? Was it nailed down?"

Throughout Hameed's closing Judge Barnes was adamant on how he was going to determine his ruling: "I'm going to be the one that makes the decision on whether this was fair dealing. That's where the rubber hits the road, isn't it?"

At the end of Hameed's closing argument Judge Barnes commented on the media attention the case has received: "I don't think this case is as profound as you and others made it out to be."

Alex Kaufman's close was much shorter. He tried to display how Blacklock's misused copyright and tried to induce the government into circulating its content.

"It's not to deter infringement. Their actions are to distribute and then punish afterwards," Kaufman said. "They are expecting it and encouraging it."

Judge Barnes explained that it would be difficult to determine the defendant's claim of "copyright troll" without looking at the nine other cases filed by Blacklock's against other departments.

But Judge Barnes did admit he saw Kaufman's argument. "There is a pattern of this behaviour. Deliberate mistakes to provoke someone into wanting to see it."

Judge Barnes also said that the relatively small amount sought by Blacklock's runs counter to the claim that they are trying to make a profit.

Kaufman explained he had spent a lot of time "scratching his head" on it himself, and figured out that if Blacklock's wins it's one case and the other departments settle the news site could be awarded $600,000.

Kaufman then continued painting the narrative of Blacklock's setting up the government for litigation.

Kaufman pointed out that all of the access to information requests to departments that had Blacklock's accounts happened roughly nine months after registration with the news.

Judge Barnes agreed that "it's a very aggressive business model."

Kaufman also continued to hammer on the journalistic integrity of Tom Korski, editor of Blacklock's with 35 years' experience. "He waits nine months because he knows that something will turn up," Kaufman asserted.

"Spin is one thing, but falsity is entirely another."

Kaufman finished his close by referencing a precedent-setting Supreme Court decision that ruled that fair dealing should outweigh one's copyright. He then passed it off to his colleague to argue that "The amount of damages should be none at all." The defendants are also asking that plaintiffs' cover costs.

Judge Barnes then closed the hearing and stated that it was an interesting case. He also told both counsels that he wouldn't promise a time for when he would come to his ruling, but that he would try to speed things along. The ruling might take several months.

Written by Graeme C. Gordon

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A common complaint of conservatives and other members of the citizenry is that the government treats them like children. But if they behave like children, is that the government's fault?

Kathleen Wynne's one-time hydro rate rebate, dangled in front of Ontarians before she sticks them with another increase down the road, reminds me of nothing so much as a frustrated mother jingling her car keys in front of a baby's face to keep them from crying.

Whatever was ailing the poor newborn is quickly forgotten. Tears disappear and are replaced by a laugh and smile.

Similarly the beleaguered mother is compelled to try something- anything- to keep her baby from crying. The child wants something, but cannot tell her what it is. So the mother is forced to resort to distractions.

The newborn has an excuse. The mother has an excuse. Those of us old enough to vote in Ontario, and those parties for whom votes are cast, do not.

We are not children. But we maintain a childlike dependence on the government. Conservatives may rail against its excesses and failings, but by and large they have accepted that it calls the shots. Only the government, and the political establishment behind it, can legitimize an idea or decide that it is time to deal with a problem.

Those opposed to Ontario's sex ed curriculum, for example, have accepted that in order to get what they want, the Ontario PC Party must take the correct position namely, their position. Similarly, those who are for the sex ed curriculum require the party to take their position. That's the ultimate goal of, and the sole reason for, their activism.

We know this because the party's previous flip flops on this and many other issues don't appear to matter. Each time the party moves back in the right direction, they are forgiven. At the time of this writing those who are for the curriculum are cheering Patrick Brown's op-ed in the Toronto Sun wherein he openly dares his detractors to brand him a flip-flopper. Who knows where we, and they, and Patrick Brown, will be a week from now?

What is lost in the shuffle here is that the party and the government should be irrelevant. If there is in fact a critical mass of supporters or detractors on this or any issue, then the way forward for the government or for the opposition should be as clear as crystal. There should be none of this fruitless casting about trying to identify the right balance to strike or the right message to send.

A government should be able to come down on one side more or less, and the opposition on the opposite side more or less, without the issue being muddied. If a third option becomes necessary then that option could and should be taken up by a third party, and if no third party exists one should be created and should be able to stand on its own. Then we can have an adult debate on the subject. That's how democracy is supposed to work.

Yet instead parties and governments and leadership candidates are taking whoever knows how many positions on however many issues. They must, because determining what Canadians really want is like placing a bet at the roulette table.

A poll says 75% of Canadians support screening immigrants for anti-Canadian values. Who are these people? Where were they during the last federal election when the Harper government bet the farm on Canadians standing up for Canadian values and against face-coverings for public servants?

Even so, trying their luck, a CPC leadership candidate nails their campaign firmly to this claim. The issue dominates the news cycle for a week or two. This is what passes for "momentum" while the larger issue of what Canadian values actually are, or if there should be any, remains unsettled.

Then the Prime Minister's advisors expense the public purse for a move from Toronto to Ottawa and we have another pointless debate about the minutiae of what constitutes an acceptable price tag for a move of that size, to that home, for that distance and for that quality of person, etc. etc.

And so the bewildered citizenry and the governments they elected continue their dance, failing to communicate as cynicism and apathy breed.

Written by Josh Lieblein

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Day three of the trial began with the start of the defendant's cross-examination of Holly Doan, publisher of Blacklock's Reporter.

Alex Kaufman, counsel for the Attorney General, questioned Doan on the updates on the terms and conditions of her news site, the differences between single and corporate subscription rates as well as the varying rates for different types of institutions. When Kaufman pointed out that Doan had given the CBC a subscription at a lower rate than government departments, Doan explained that she did it at "a reduced rate" because of the benefit of the possibility of the CBC picking up stories broken by the news start-up. Kaufman also referenced Doan's testimony from yesterday about the internet spreading content "in the wind" when he explained to Doan that a university gives access to anyone using its computer library access to Blacklock's content.

Next on the stand was Sandra Marsden, President of the Canadian Sugar Institute. Kaufman focused on asking the witness about her correspondences with Tom Korski, editor of Blacklock's, and Patrick Halley, Senior Chief at Tariff and Trade Policy. There were a couple parts of her testimony that stood out. During Kaufman's examination, Sandra repeatedly testified that "raw sugar imports" had "no change in price" or "no sugar tax." The semantics of whether or not a tariff is a tax became a point of contention because the two Blacklock's articles circulated within Finance mentioned there being a sugar "tax". AG counsel is trying to put forth the argument that Blacklock's articles were "misleading" or "inaccurate" and that Finance simply obtained a copy for "internal research purposes" to check the copy's contents, which would likely fall under fair dealing.

Plaintiffs' counsel Yavar Hameed's cross-examination seemed to be effective at undermining the claim that a tariff is not synonymous with tax. He examined how Marsden was concerned about managing her relationship with the government and that she never contacted Blacklock's to follow-up on her problems with the article. The cross-examination also showed that in an email to Finance Marsden admitted most of the facts were accurate.

After Marsden, Halley took the stand. Kaufman questioned Halley about the tariffs again and Halley reiterated Marsden's words, that the tariff is not considered a tax in the industry.

A few times throughout the proceedings on Wednesday, Judge Barnes intervened and reminded counsel that the case involves an argument of fair dealing. It appears that the case will largely be decided on whether or not it was fair dealing for one of the defendants to receive copyrighted material as a third party and then distribute to several others within Finance.

Thursday, Halley will finish giving his testimony and then the Finance employee who communicated with Doan about Blacklock's subscription quotes, Stephanie Rubec, Deputy Director of Communications Policy and Strategy for Finance Canada, will be called to the stand. The case's ruling may lie largely on the testimony given on Thursday by these two employees of Finance Canada.

Written by Graeme C. Gordon

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The fourth day of proceedings began with Patrick Halley, Senior Chief at Tariff and Trade Policy at Finance Canada, being cross-examined by the plaintiffs' counsel, Yavar Hameed. During questioning Hameed focused on the "close relationship" in dealing with tariffs on raw sugar that Halley had with Sandra Marsden, President of the Canadian Sugar Institute, and why she would send him Blacklock's articles.

After the Blacklock's articles on the possible tariff increases on raw sugar under the new TPP trade agreement were averted, the usual "twice or three times a year on average" that Halley and Marsden communicated increased to "high frequency" during the "issue" of the articles.

Despite this, there is no evidence proving that Marsden was solicited by Finance to send the Blacklock's articles to them. Hameed also questioned the witness about the "unhappiness" Marsden felt about the article. "She was concerned about the terminology."

Another interesting part of Hameed's cross-examination of Halley was when he asked the witness about sending the web link to Blacklock's "about page" to staff members. Halley said he didn't attempt to access the article and wasn't aware of Blacklock's terms and conditions when he visited the site.

"Looking at the article wasn't a concern to you?" said Hameed.

"No," replied Halley. "I didn't understand why the article said no comment."

When Hameed tried to press further about Halley's "surprise" about the article saying Finance had no comment, Judge Barnes intervened: "We're not trying to reinvent history," he told Hameed. He then said it was already established Korski, editor of Blacklock's, "on the record the department gave a substantive comment and Mr. Korski reported no comment." Judge Barnes later added, "We know what he did. I have to decide if that was reasonable."

Judge Barnes also commented on Halley's actions: "I have to decide under the fair dealing provisions of the act if his actions were acceptable."

Hameed questioned the witness about his reasoning for circulating, and Halley said his "primary concern" for distributing to others in the department was the use of the words "sugar tax" and "error". Another interesting point raised by Hameed that may have relevancy in fair dealing is that Halley took no effort to limit his distribution, though the evidence shows that the circulation was limited to only several staff within the department. Halley also didn't contact Korski to make a correction.

Following Halley there were two witnesses â€” one from Canadian Museum of History and the other from Canadian Mortgage and Housing Corporation â€” who both gave testimony of their poor experiences with Blacklock's. One of the witnesses said she felt "sort of duped into creating this situation." She also said Koski "didn't seem to be accepting the answers that I was giving him" and that he wrote negative articles that were "misleading" and "misrepresenting" of facts.

Stephanie Rubec, deputy director of communications policy and strategy for Finance and a former journalist, was the last witness for the defence. In her testimony she stressed the importance of "fair and accuracy in your reportingâ€¦ If there are two sides to a story you give both sides."

Alex Kaufman, counsel for the Attorney General, asked Rubec when she first became aware of Blacklock's. Rubec said shortly after it was created she saw posters that were meant to draw your attention.

Rubec then testified about some of her previous experiences answering questions from Korski for Blacklock's articles on Finance.

Rubec explained that Blacklock's had a "track record of lying about their dealings with us" and made "Finance look like bumbling idiots" with "torqueing and salacious" stories.

Hameeds cross-examination of Rubec didn't have too much significant testimony, except for Rubec's admission that she inquired about bulk subscriptions with Blacklock's a month prior to Halley circulating. Kaufman, however, says that the fair dealing question will be placed on Halley's actions, the Finance employee who circulated the two articles.

Rubec also said she was frustrated with Korski's reporting on finance when questioned by Hameed.

"He's not going to change his article regardless. I didn't see the point after the back and forth from the day before," said Rubec.

She also pointed out that in all of her years in media she had "never experienced a reporter receiving comment and then putting no comment."

The closing arguments in the case of Blacklock's Reporter v AGC will take place Friday at 10 a.m. at 90 Sparks Street in Ottawa.

Written by Graeme C. Gordon

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Before proceedings continued in the morning on Tuesday, Justice Barnes explained some parts of what he thinks both counsels should include in their final submissions, including the following: "This is a matter of contract, possibly entering contractual limitations, and the extent to which contractual limitations include a subscriber, or agreed to by a subscriber â€¦ to what extent do they apply to third party receivers of the information. We're not strictly speaking contractual bound."

Alex Kaufman, the legal counsel for the defendants, cross-examined Tom Korski, Blacklock's Reporter's editor, for over half of the day's proceedings. During Kaufman's examination of Korski, he questioned the accuracy of some of his previous stories as well as the two articles involved in this case. At one point Justice Barnes intervened to clarify why Korski had stated in an article that the department had not commented. He did not seem impressed with Korski's answers.

"Even in this circumstance, where you knew the department had commented, you leftâ€”it seems to me Mr. Korski that that was not a correct statement. You said that the department did not comment. In fact the correct way to report on that seems to me to have said â€” given the editorial dilemma you commented on yesterday, you had a dilemma as to how to work in the comments â€” the correct way to deal with that would be to say nothing at all about what the department had commented, do you not agree with that? Do you not see the logic of that? Your answer misrepresented what you knew," said Justice Barnes.

Kaufman also went over previous Blacklock's subscription rates to put into question the plaintiffs' amount of their claim of $17,816.71 in damages and questioned Korski further on the terms and conditions of his news site.

Korski, during Kaufman's cross-examination, defended his claim of damages.

"It's a matter of public record the government of Canada spends 22 or so million dollars a year on electronic media monitoring. These are public documents they've been tabled in the House of Commons â€¦ Certainly the information is available to the employees of each department. No one spends more on electronic media monitoring than federal departmentsâ€¦ If we receive an individual subscription by a person who is a communication officer of a federal department that is part of an institution that spends 20 million a year on electronic media monitoring, I think a reasonable person â€” and we did â€” that they would be the last ones to be confounded by licencing agreements, media monitoring terms â€¦ to distribution of copy."

Kaufman responded: "Mr. Korski, there is a difference between paying millions of dollars for The Globe and Mail and paying a lesser amount for a startupâ€¦"

"Other startups receive five-figure amounts," answered Korski.

Near the end of Korski's testimony, in response to a question from his counsel, Yavar Hameed, explained the significance of the case as seen by him.

"Are concern is, your honour, if we're wrong in law then it can't just be an exemption for our little mom and pop company. Then, not only is our paywall model fatally flawed but we don't understand why the government would pay any licencing agreement to anyone if they could invoke fair dealing for the reason it states. So, it strikes us that the payments â€¦ they made with publishers they contract with are effectively subsidies. And that raises a lot of questions. And as a lifelong reporter, it raises some concerns. If some publishers get subsidies and other publishers can have their paywall material distributed under fair dealing, that sounds like de facto regulation," said Korski.

At another point during Korski's testimony, Judge Barnes intervened and asked, "Have you ever accepted someone's explanation for â€¦circulation as excusable in the fair dealing provisions?"

"No, you know what we do? People ask us to unlock stories and we do. â€¦ But they ask our permission," was part of Korski's response.

After Korski's testimony was over, Holly Doan, publisher of Blacklock's, took the stand.

During her examination by her legal counsel she explained how her company displays its product to prospective subscribers by showing the headline and cutline of Blacklock's articles.

"So my idea when this was designed was that this is a little bit like the newspaper in the newspaper box, where you see the headline, and you see a cutline, which we call above the fold, but you can't see what's underneath unless you buy it."

This testimony will likely be used by Hameed in disputing the defendants' claim that the plaintiffs send "teaser" emails to induce government departments to access the copy.

During Doan's testimony she also explained the difficulties of protecting copyright in the digital age where consumers expect content to be free.

"A generation of publishers has given away product, so a generation of Canadians [were] trained that everything's free, so when you put something free out there â€” instead of what we hoped, attracting interest in our product in order for people to purchase it â€” the opposite happened. People then said well that old stuff was free, todays should be too, because they've been trained that its free in the Ottawa Citizen or it's free in The Globe and Mail (most of it). Once something is on the internet it is in the wind. We don't know how far it can go or how widely it can be shared," she said.

She also explained why Blacklock's resorted to litigation and her fears if they aren't successful in their claim.

"When someone takes your intellectual property I've learned that the only place you have to go is the copyright act. You can't call anybody. So litigation â€” to me â€” is about if the department of Finance is allowed to write the manaul on how to get around the paywall and distribute material, then that's the greenlight for everybody. This is our government, and if our government can do that that's a message to all our subscribersâ€¦ If they're right in law our company is finished. In the last month I've had two inquiries from groups that wanted me to speak about the future of journalism and paywalls. â€¦ I told them I couldn't, because this litigation represents the meaning of the paywall for media, online providers. So if there is no hope for my company then I would tell any journalism student not to bother with an online website. The Copyright Act â€” I've learned â€” is the only friend you have, so at the end of a 34 year career that's the impact on journalism and more directly the impact on media," said Doan, holding back tears.

Although the plaintiffs have been bringing up electronic media monitoring (a standard practice by the federal government in which they buy subscriptions to media outlets to track stories being presented to the public) Justice Barnes made it clear he doesn't see it having relevancy to this case.

"We seem to be straying awfully far afield with a lot of this evidence. I mean I understand media monitoring and all these subscriptions and so on, and I probably wouldn't have much difficulty of what had happened in this case. â€¦ What happened here was not a media monitoring exercise. As I understand it, what happened here is a discreet article that got into the hands of an individual at the department of Finance and then sent it out â€” an article dealing with the department of finance â€” and there was an exchange with the department of Finance on the issue, and it went out to a discreet number of individuals. That's not a media monitoring situation. So how media monitoring situation has anything to do with this case â€” I have to say â€” it escapes me, because that is a very different case. If someone takes a piece of copyrighted material and sends it out to 800 people who really have no interest in seeing it other than it might be interesting, it might be entertaining, you know that very well may be a breach of copyright. It would be much harder to make the case of fair use in that situation perhaps, depending how the material was accessed. This is a very different, much more limited situation. I really don't understand the relevanceâ€¦ We've had evidence that the government spends $20 million a year on the subscriptions, take that as a given. The government watches the news very intently," said Justice Barnes.

He also reminded counsel for both parties that they have been straying from the relevancy of this specific case in their arguments, and his concern of completing the trial in the tight five-day alotted time.

"I'll make the point that we're two days in here and there's been an awful lot of talk about practices of the labours, policies, and approaches. It may or may not have had anything to do with what happened in this case. Let's focus on what happened here, with respect to the distribution that happened here and why that distribution occurred as it did â€” what the motivations were, how the information was obtained â€” because when you opened up this case we all seemed to agree on is that this is context sensitive. Fair dealing, which is going to play a very central role in this caseâ€¦ turns on all sorts of issues specific to what happened hereâ€¦ We spent a lot of time already, I'm a bit concerned, we have a five day trial, if we continue to belabour points that are not specific to this case we're never going to finish by Friday. I say that to both of you because you have both gone pretty far afieldâ€¦ Let's come back to what this case is about," said Justice Barnes.

Doan will be cross-examined tomorrow by Kaufman. Patrick Halley, Senior Chief of Trade and Tariff Policy at Finance, and Sandra Marsden, the President of the Canadian Sugar Institute, are set to take the stand Wednesday.

Written by Graeme C. Gordon

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The ongoing debate over whether Canada should have a referendum on electoral reform seems to be at an impasse. In the interests of throwing a new option out there, let me suggest this: the Liberal government was elected on a mandate to reform the election system. The government was not, however, elected on a mandate to reform the system to a particular type of alternative. The obvious solution, then, is to have a referendum, not between the status quo and an alternative, but between alternatives themselves.

It's hard not to feel sorry for Democratic Reform Minister Maryam Monsef. The almost preternaturally positive rookie minister has the unenviable task of ad-libbing filler as the government explores its eventual position on electoral reform.

On the one hand, she's absolutely right: consultations should happen, and it would be both wrong and unfair to rush to judgement on which type of electoral reform should emerge.

Yet, the Conservative opposition makes a strong point when they say the government was not elected on a mandate to impose a particular type of electoral reform on Canadians without a referendum. Whether in British Columbia or Britain, New Zealand or Ontario, changes to the electoral system have been put to a plebiscite. It's almost a precedent.

Conservative critic Scott Reid MP rightly notes, "Neither the Liberal platform, nor any utterance from the party since, has indicated exactly what would replace the current electoral systemâ€¦in the absence of naming any specific alternative, voters have not, in fact, had the opportunity to choose one over others".

But implicit in his argument is the concession that the government was elected on a mandate to reform the electoral system. Prime Minister Justin Trudeau could not have been more clear in the spring of 2014: "This will be the last election run by first past the post", he pledged.

In other words, the question the Liberal government has to face is not whether we have electoral reform, but what type of electoral reform.

A referendum is perhaps an unrivalled persuasion and educational opportunity to have a fulsome and robust public debate. This is critical: the government should not seek to merely change our electoral system; the government should aim to prepare Canadians to use the new system and understand it. A referendum, coupled with citizens' assemblies and other tools, can also be about civic literacy, as much as a general election can be an educational tool to share the winning party's plans with the public.

Former Ontario Liberal cabinet minister Dr Marie Bountrogianni told Maclean's something similar in the spring, suggesting, "I think there would have to be an education process of some sort, and then a vote".

I get that the government does not want to be distracted from their broader agenda by electoral reform. But, first of all, they basically already have been. Even more so, something this seminal and transformative should be done publicly, clearly and boldly. Justin Trudeau has already shown he has unique political persuasion talents and the ability to win. He should do so again in favour of his preferred electoral reform.

Furthermore, it is not like Canada has a referendum obsession; the last national referendum occurred when I was two years old. As Professor Emmett Macfarlane argues, "I think electoral reform is considerably more fundamental than ordinary policy decisions, at least in a constitutional sense, but probably also in a 'this should be decided by the most democratic means possible' sense".

It's believed that the Prime Minister is loathe to call a referendum given the poor success rate in other jurisdictions. Electoral reform has been on the ballot in various provinces and other countries, and often failed to gain the support necessary.

Yet, where electoral reform referenda have failed, it was almost always a choice between the status quo and a reform option.

In our context today, that is an unnecessary debate. Trudeau was clearly elected with a mandate to change the electoral system. But, his platform and pronouncements did not specify which type of system. Still, he was quite clear that change was going to happen under his leadership.

So, put the type of change to the Canadian people. Run a ballot between the two reform options that emerge from public consultations. In other words, given Canadians a short list and let us pick between the two options. Let us choose between, for instance, ranked ballots and proportional representation, with a vigorous educational campaign preceding the vote.

And for Monsef, who all must agree means well, the freedom to finally come out and pitch a clear plan would come as a relief. It would also let her do the right thing by ensuring a democratic mandate for democratic reform.

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As democratic institutions minister Maryam Monsef goes around the country on her "town hall" tour of electoral reform discussions, a pattern has emerged in that she is more interested in talking about reform "principles" than she is about actual voting systems themselves. This has sparked the ire of reform proponents who attend these functions, obviously keen to try and proselytize about their chosen electoral model, but it does make one wonder if Monsef wants to focus on principles and values, then what is her endgame?

When this whole exercise began, Monsef laid out eight principles that she wanted people to think about in the discussion, and those eight got whittled down to five that were eventually published in her department's guidebook on hosting a discussion on electoral reform. Amidst a cursory overview of different systems on offer, and helpful hints about how to host discussions that include tips like bringing snacks and getting people to sit in a circle or to break out into smaller groups for some conversations, those five principles are listed as being:

Restoring the effectiveness and legitimacy of voting by reducing distortions;
Encouraging greater engagement including by underrepresented groups;
Supporting accessibility and inclusiveness and avoiding undue complexity;
Safeguarding the integrity of the voting process; and
Preserving the accountability of local representation.

On top of the principles, the guide asks people to discuss how they could strengthen effectiveness or legitimacy of governments; if the reforms could foster "civility, cohesion and openness" in politics; whether they will enhance the sense that people can contribute to and influence politics; how they can ensure that Canadians trust election results; and if any reforms affect MPs' accountability to citizens.

All of these are sufficiently vague so as not to overtly favour any one system in particular, but it should be noted that no one system will actually meet all of them either. In fact, part of the problem, not only with the principles as laid out but also the discussion questions around them, is that they foster some of the civically illiterate notions that are currently plaguing people's understanding of our political and electoral systems, which is part of the existential problem around this whole electoral reform exercise in the first place.

To wit, the concern that there are "distortions" in how elections are decided that affect the "legitimacy" of a government are fabrications arising from the wrong-headed notion that general elections are a single event, when they are in fact 338 separate but simultaneous events. It treats the popular vote figure as though it were real and not a logical fallacy that arises from that wrong-headed notion, and cites the supposed "distortion" between the percentage of a vote that a party received versus the number of seats they won as a credible problem for the legitimacy of a government rather than a problem with the fundamental basic civics education in this country something that Monsef and her office should be spending more time on actually promoting rather than playing into myths and falsehoods.

The principles and the questions around them also treats the voting system itself as the problem around inclusion by underrepresented groups or with civility, and lends credence to some of the myths perpetuated by proportional representation advocates in particular. There is a certain amount of magical thinking that goes into these particular myths when the solutions tend to mean hard work on the parts of party volunteers and members to removing barriers to access at the ground level, particularly in things like nomination contests. Some of this is also reflective of issues that Elections Canada needs to do in order to better get the vote out among some of these communities, whether that means better communications tools in more than just the two official languages, or in voter outreach and education for new Canadians. As for civility and openness, there is this pernicious belief by reform advocates that different systems will force parties to cooperate more and we'll have a more harmonious Parliament as a result none of which is actually born out in the experiences of other countries, or even in our own during periods of minority governments.

Monsef's town halls also include questions on online voting and mandatory voting, but the fact that she has "safeguarding the integrity" of the system as an important principle should rule out online voting right out of the gate. There are no systems that can properly assure both security and integrity because without a paper trail, we can never be sure if the results are accurate or have been tampered with, not to mention that online voting undoes more than a century of work in ensuring that there is a secret ballot.

So just what is Monsef's goal in stubbornly keeping the focus on these values and principles rather than the mechanics of any proposed electoral systems? There are a few reasons, not the least of which is that it gives her the widest latitude of discretion without making any firm commitments to any one voting system as the discussions play out. Nothing in there will tie her hands when it comes to making a decision on which system that the government will prefer as their best option, whether that's ranked ballots or some form or mixed-member proportional representation. It also gives her the appearance of listening to people's perceived grievances with the system as it exists, even playing into them, but there is a danger to feeding those grievances, particularly when they are grounded in ignorance.

If there is a silver lining in this insistence on sticking to values and principles, it's that when the committee process comes back in a deadlock which it almost certainly will it does provide Monsef with an escape hatch where she can point to all of the ways in which the current system, as properly understood, fulfils those same principles. That would be the best of all possible outcomes, but I won't hold my breath.