The debate over how much external oversight the Senate should be subject to is heating up again, as the Government Leader in the Senate err, "government representative," Senator Peter Harder, is going on tour across the country to insist that the proposed audit and oversight committee of the Senate contain external members.  Conservative Senator David Wells, who chaired the sub-committee that recommended a senators-only audit committee, is pushing back and saying that Harder is ignoring crucial parts of the proposals.  But what if they're both right?

The debate over the creation of an audit committee predates the massive audit of the Senate conducted by the Auditor General, and one of his recommendations was the creation of an oversight body, but the AG was fixated on the fact that it be external to the Senate.  There are problems with this, however, because the Senate is a parliamentary body and not a department of the public service, and as such, it needs to be self-governing.  Imposing external controls is a diminution of self-government no matter how you slice it, because it says that our political actors are not able to govern themselves and if you agree with that notion, then we may as well turn over control back to the Queen, because as much as said political actors may disappoint us, we have mechanisms to hold them to account (and yes, that extends to the Senate as well, though they may be less obvious).

Having heard this argument before, Harder came armed with counterpoints in his latest Policy Options oeuvre, insisting that external oversight won't necessarily diminish parliamentary sovereignty, and that inclusion of an external component on the oversight committee is not precluded by Parliament's self-governing status.

"Far from undermining this privilege, the inclusion of external members would constitute an appropriate and welcome exercise of the Senate's privileges," writes Harder.  "In the end, the Senate as a chamber would remain supreme, and the arrangements could be undone if that is its will."

He's not entirely wrong here, so long as he sticks to the notion that an oversight body include external components  and I stress that word, because it's what sets aside some of the more reasonable propositions for what the AOC could look like from the Auditor General's vision.

I will remark that this appears to be Harder softening his position, which used to be that he wanted the AG's vision implemented, end of discussion.  Part of what allowed him to be so strident, in my estimation, was the fact that he did not live through the AG's audit, nor did he understand just how problematic it actually was, where he and his audit team substituted their personal judgment over what was and was not a legitimate expense no matter how much documentation a senator may have had to back up their claims.  A lot of that personal judgment was both capricious and arbitrary, but in the aftermath, many senators simply repaid the demanded amount to make the situation go away rather than keep their names in the papers.

Later appeals processes involving former Supreme Court of Canada Justice Ian Binnie showed that many of the AG's conclusions were not reasonable, and later still, a legal analysis of the findings in order to demand collection from senators who refused to pay showed that the AG applied standards to his review that were far and above what a court of law would deem reasonable.  This is important context to keep in mind when discussing whether a wholly external body would be appropriate for the Senate, given that this exercise was so flawed.

When the Senate did study the issue and recommend the creation of the AOC, the sub-committee who made the recommendations also recommended that the five-member body be comprised wholly of senators, but to Senator Wells' point in rebuttal to Harder, they also recommended the inclusion of both internal and external auditors be made permanent advisors to the committee, and that the AOC should review all Senate expenditures, rather than just individual senators' expenses, and that it should conduct blind, random audits of those individual expenses.

Wells also made the point that Harder is trying to make it look like senators are marking their own homework, like the Auditor General somewhat erroneously did and Harder did frame his Policy Options piece with polling data on the Chamber's "credibility deficit" with the public.  But Harder is both right and wrong here.  I do think that there needs to be some external component on the committee even if there are external auditors permanently attached to it in an advisory capacity in order to enhance the credibility of the exercise.  By the same token, you can't become too beholden to the notion that this will somehow restore the legitimacy of the Senate in the eyes of the public, because I'm not sure that's remotely possible given the generations of myth-making and narrative-pushing that the Senate has been subjected to.

To that end, I still believe that the reasonable compromise remains patterning the AOC on the House of Lords' audit committee where the five-person body contains two external members.  It has the benefit of both having the external component that will make the exercise a more legitimate one in the eyes of the public, while still maintaining the body as one under the control of the Senate in its self-governing capacity.  That should satisfy both sides of the debate, provided that they can tone down their stridency.  We also need to keep in mind the actual magnitude of the Senate's expense "scandal," which was largely overblown outside of the Duffy and Wallin examples that brought it to such national attention, for which the Senate did recoup the misappropriated expenses through their internal processes once they were brought to light.  There were no moat cleanings being expensed, and we should stop trying to pretend otherwise.  There is a sensible approach to the creation of the AOC, and hopefully the Rules committee will see that in its deliberations.

This week, the Federal Court ruled against University of Ottawa student David Rodriguez in his quest to force Elections Canada to put a "none of the above" option on the ballot.  Justice John Norris was unconvinced by the arguments put forward by Rodriguez, and has concluded that Rodriguez's freedom of expression is not in fact being violated by the lack of his desired option on the ballot, and the decision lays out some pretty convincing language as to why this is the case.

Part of the decision revolves around the legal test around what is known as a motion for summary judgment whether this is a matter that requires a full-blown trial or not, and because there was no evidence in dispute, this was a matter that the court was able to dispatch through such a motion.  The rest of the matter dealt with whether or not there was a positive obligation on the part of the government to provide Rodriguez with the option on the ballot in order to fulfil his Charter rights of freedom of expression.  Again, Justice Norris found that indeed, there is no such obligation on the part of the government, and that's why Rodriguez's case falls apart completely.

Justice Norris lays out the problems with Rodriguez's argument in paragraph 41 of the decision:

To the extent that Mr. Rodriguez is prevented from communicating the message he wishes on the platform established by the [Canada Elections Act], this is because the platform is intended to serve a completely different purpose than the one he seeks to use it for.  The CEA establishes a method for determining who will sit in the House of Commons by holding elections and determining who the victorious candidates are.  Not designing that platform so that it can also be used for an unrelated purpose i.e. to express "officially" one's rejection of all the available candidates is not a restriction on expression that can be challenged by a negative right claim.

Norris went on to say that the situation would be different if the Act required Rodriguez to fill out a ballot in a particular way that didn't allow him to reject all of the available candidates, or if it imposed some kind of penalty for those who didn't fill out their ballots according to the rules.  In the absence of such rules, there isn't a government action that would be the kind of "negative rights" that Rodriguez was trying to claim.

Norris added that Rodriguez' claim that the government's "failure" to provide him with the option of providing the particular means of expression to reject all of the candidates as part of the process could only be understood to be a positive rights claim.  As stated in paragraph 43:

His argument depends on the premise that the government is under a positive obligation to act in a certain way to facilitate the expressive activity in which he wishes to engage.  In other words, for his argument to succeed, the government must be obliged to permit a platform designed for one purpose to be used for a completely different purpose as well.

Norris added that Rodriguez's only complaint was that the government had not designed the voting process in a way that permits him to express a particular opinion by a particular means.

I have never been convinced by the notion of either a "none of the above" option or an option to officially decline one's ballot, as it allowed in Alberta, Ontario, and Manitoba, because it goes against the notion about what an election is all about.  There is a certain amount of childish entitlement that comes with the notion that all candidates must be good ones particularly if one has not participated in any of the political processes that leads to the nomination of those candidates on the ballot.  It's also unrealistic to assume that there can always be good choices in a contest like an election, because real life means that sometimes one needs to decide between two or more bad choices and we can certainly think of elections where that has been the case.

Rodriguez's other mistake in logic, of course, is that a large enough "none of the above" result in an election will cause some kind of crisis of conscience within the political parties and that they will see the light, and suddenly decide that they will present much better candidates for the public, or that their platforms will become all the more enlightened for people to choose from.  Real life doesn't work that way, and it's a jejune notion to think that parties could somehow be embarrassed into shaping up particularly given that they have been undermining their own best interests not to mention the way our system is supposed to operate in the ways in which they have centralized power in leaders' offices using the justification of the supposed "democratic mandate" of leadership elections.  They have created this crisis of faith because cynicism suits their agenda the fewer people involved at the grassroots level, the more they are able to run things from their leaders' offices.

This is why providing a "none of the above" option is ultimately self-defeating.  It gives people the smug satisfaction that they're sending a message, or sticking it to the system, when they're simply abdicating their responsibilities to engage with the system and the parties at the grassroots level.  The only way to combat this is to get involved.  That means that more people need to get involved at the riding level, getting involved with policy debates and nomination races, and agitating against the party leadership in order to take back control when the party leader's office extends too much control, and that won't be easy.  It will also mean doing what feels counterintuitive and relinquishing power over leadership contests so that caucus regains it, thus putting the leader's power back in check.  That is the only way we can hope to restore sanity to our democracy.  A "none of the above" option on the ballot won't.