By now, you have heard variations of the story that the Liberal government is checking to see whether or not potential judges had donated to the party before they decide to appoint them to the bench.  In Question Period on a daily basis come new accusations that the government only appoints its friends to the bench, and that they have rejected applications because those lawyers have ties to Conservatives or separatists.  We hear over and over again about the use of the partisan database Liberalist, whose apparent only function is to track donations and whether or not people ordered lawn signs during an election.  All of this is of course false, brought about by irresponsible journalism that fails to understand some of the fundamental aspects of Responsible Government, and it has now spiralled into a full-blown moral panic.

The selection of judges has been under some particular partisan back-and-forth over the years, where the Conservatives started tinkering with the Judicial Appointment Committees to ensure that they included police representation, under the rubric that they wanted to ensure that no judges would be appointed that weren't sufficiently tough on crime though one was left to wonder what that had to do with judges who were appointed to specialized courts like family law courts in parts of Ontario, or the Federal Court or Tax Court, who don't deal with criminal law matters.  When the Liberals formed government, they made their own changes to these JACs, to ensure a broader range of views, along with a more transparent application process.

To be clear there are still problems with the way in which the Liberals have approached judicial appointments, some of which I have reported on.  For a government that is trying to ensure greater diversity on the bench, they have failed to recognize that simply asking more people to apply isn't cutting it, and that the hard-wired notions that people have about the judiciary that it is overwhelmingly straight, white and male means that people who don't fit into that particular box are far less likely to apply.  There are more than enough studies out there that prove that women and minorities who don't see themselves in the role won't apply, and even when they are invited to, they need to be asked repeatedly until they do.  Hell, the Liberal Party's own recruitment strategy for candidates recognizes this fact and they've put into place a process whereby they will ask qualified women and minorities to run repeatedly until they say yes.  The fact that they didn't think to do the same for judicial appointments is mind-boggling.

The irresponsible reporting around the supposed "political vetting" of these judicial candidates both confuses what the application process is, and the underlying reason why PMO vets the short-lists.  For starters, those who apply for the bench are evaluated by the JACs in a process that is completely arm's length from government, and only those who are deemed "recommended" and "highly recommended" are forwarded to the Minister.  From there, the minister has to look at what each court needs in terms of subject-matter expertise needs which are forwarded by the Chief Justice of each court with vacancies.  From there, the minister puts forward those candidates who fit the bill to the PMO, who then do their own vetting, which is the part that is being misconstrued, oftentimes deliberately.

Under our system of Responsible Government, the prime minister is politically accountable for all Governor-in-Council appointments, which includes judges.  That means that he or she has an obligation to do the due diligence of ensuring that there is nothing in the background of this candidate that won't become a political embarrassment, because Parliament can theoretically withdraw confidence from a government if they feel that appointments have been made irresponsibly.  To that end, these names are subject both to scrutiny by political machinery, but also consultation by MPs, because they tend to be connected to their communities, and may have heard things that won't have been picked up by the JACs when checking professional references.  It is out of an abundance of caution, which is not a bad thing.  The party does check their Liberalist database as well, but it's a mistake to think that this only contains information on past party donations or lawn signs.  Parties have been building these databases with vast amounts of data to build profiles of voters, which is why they are so concerning to Privacy Commissioners.  These profiles may have something flagged about these candidates, which the prime minister may need to know about before he puts his own reputation on the line to name them to the bench.

None of this has actually been explained by the various media sources who have taken this non-story and run with it.  Relying on leaks, most of which seem to be targeted toward embarrassing a few key staffers (possibly because of their involvement in the drama surrounding Jody Wilson-Raybould), these stories have been deliberately framed in a way that gives the impression that MPs have more sway over who gets to be chosen for the bench than the justice minister, or that certain lawyers were named to the bench solely because they have been party donors, or in one particular case, donated to the minister's nomination race before he was even elected.  And based on this context-free reporting that misrepresents how Responsible Government works, we now have the likes of Democracy Watch trying to go to court to overturn the whole system in the name of "judicial independence" (using a different definition than the Supreme Court of Canada does).

Everyone says they want a more independent process, but it's pretty much as independent as we can get under the constraints of Responsible Government without turning it into a complete technocracy run solely by the legal community.  And for all of the pearl-clutching over these deliberately torqued stories, nobody wants to say that these judges are only going to ever side with the Liberal government, and nobody is actually suggesting that we ban lawyers from making political donations because they might one day apply to be a judge.  This is just a deliberately crafted attempt at creating a scandal where none exists, and it has been stoked so much that we are now in a full-blown moral panic.  Add to that, this government's inability to explain the process has just made it worse, while they prefer to pat themselves on the back and tell us how "proud" they are for their "transparent, merit-based process."  They are hurting themselves and the judiciary in the process, because waiting for it to just blow over is only going to create more collateral damage.

Photo Credit: Gowlings

As the calls for the federal government to enact some kind of emergency powers in order to control the pandemic continue to mount in the face of provincial inaction, I am force to wonder how many people have actually thought through what they are actually demanding.  Even if prime minister Justin Trudeau and his Cabinet were to invoke the Emergencies Act over the objection of the provinces (and Parliament didn't object and vote it down within seven days), or used the reserve constitutional powers of the Peace, Order and Good Government (POGG) clause, what then?  What are we asking them to do that isn't being done right now?  Let's think about this.

The first and most obvious consequence of any kind of invocation of federal powers (assuming that it is actually justified  I'm not sure that it meets the definition that the emergency must be "of such proportions or nature as to exceed the capacity or authority of a province to deal with it") is just what exactly we want the federal government to do with them.  Remember that they don't have either the expertise or the manpower to micromanage the delivery of healthcare across all of the provinces.  With the pandemic, a major problem is that provinces didn't invest in expanding capacity for testing or compact tracing back in the spring, when it would have made a difference because it takes time to build that capacity and can't be done overnight.  The federal government has already offered use of its labs and contact tracing abilities for provinces upon request, so I'm not sure what else can be gained here.

What about harmonizing guidelines across the country?  Green Party leader Annamie Paul has been pushing for a national task force to do just that, so what "red," "yellow" and "green" zones means are unified across the country.  And that sounds fine and good, but again, you don't need emergency powers for this you can simply sit down with health officials across the country and devise such a system by negotiation.  But if there was a move to do this by emergency powers, would you a) really trust a federal government that can't communicate its way out of a wet paper bag to provide clearer guidelines than the mess that exists already; or b) be able to deal with premiers who are messaging against these guidelines as they focus more on the needs of restaurants, bars, casinos, and other businesses?  I'm sure that this would actually embolden premiers to encourage more people to go out to restaurants and bars, because they're trying to stick it to the "dictatorial" federal government.

We've had suggestions by the likes of law professor Amir Attaran to use the POGG powers and the Department of Health Act to have the health minister made a national declaration around mandatory masking and closing whatever indoor spaces are deemed major spreaders, like restaurants or bars, but this does little about the actual issues on the ground, such as capacity for testing and contact tracing, and it gives no particular thought as to enforcement, which local health orders do.  (I also find Attaran's reasoning around the "shared jurisdiction" of health to be a bit cute because healthcare delivery is a provincial responsibility and the federal role is largely about ensuring equitable access across the country).  We also have the bigger problem where public health officials are saying that private residences are where the majority of transmission is occurring these days, so I'm not sure how a federal order closing bars and restaurants will actually be helpful in dealing with such a situation.

When it comes to enforcing a federal order like this, what levers exactly should they be using?  I think one would be hard-pressed to contemplate using these same POGG powers for the federal health minister to commandeer local police and bylaw officers, and we certainly don't have the manpower to send the RCMP out federally to enforce these orders, nor do we want to contemplate using the military for police action.  That way lies a police state.  And when we start seeing more anti-mask rallies around the country, exacerbated by the conspiracy theories that this is the first step in the federal government trying to impose a "communist regime," things could start getting ugly.

There is also the very real problem of what exactly the premiers will do if the federal government goes ahead and starts using these emergency powers without their express consent.  Remember that they are not a subordinate level of government the constitution divides powers between them, it does not delegate them.  Do we want to be dealing with a constitutional crisis on top of the pandemic?  Aside from the emergency court challenges to the invocation of these powers without consent, would we face the prospect of premiers issuing contradictory orders to their own officials and enforcement agencies?  Would they step back entirely and wait for the federal government to botch their attempts to micro-manage the crisis without adequate capacity to do so?  There is no shortage of ways in which premiers particularly those who were already hostile to Trudeau before the pandemic began would do everything they could to sabotage this kind of a move by the federal government.  Nobody would win, and it wouldn't stop the deaths that are already happening because premiers didn't get their acts together back in the spring when they should have.

Much of the demand for the federal government to invoke these emergency powers is rooted in the political syllogism something must be done; this is something; therefore, we must do this.  But as much as we might derive some kind of psychological satisfaction for Trudeau doing this, the logic doesn't actually follow when you think it through, and he would be assuming a lot more political risk than would be wise for very little gain.  The real course of action for Canadians is to put the pressure on their premiers to step up and do their jobs, because that's the only way we will get through this pandemic.

Photo Credit: CBC News

A very curious phenomenon has been happening with this particular government, that I can't say that I've seen before a regular stream of abandoned bills littering the Order Paper, sometimes abandoned because the measures were folded into larger bills, but in other cases, because a flaw was identified in the bill, and rather than simply moving an amendment through the usual process, the whole bill gets abandoned and a new one drafted to replace it.  The very first bill of the current session was such a case, and with the new business aid package in Bill C-9, which is about to hit the Senate, the government has decided to push it through with an identified flaw and to pass a separate bill to fix it afterward.  None of this makes any sense.

To a certain extent, there seems to be a sense that for the past few months, this has to do with the rush with which bills are being rammed through Parliament because of the pandemic.  The government has repeatedly abused process to ensure that bills are passed as swiftly as possible, which has meant very little public scrutiny.  For much of the pandemic, they would float draft bills past the opposition and get input and make any necessary changes before officially tabling it in the Commons, and then passing it swiftly at all stages, though they may deign to subject the bill to a couple of hours of speechifying as opposed to actual debate or legislative scrutiny.  One of those bills was abandoned after agreement couldn't be reached on aspects of it, which was the early attempt at new disability benefits.  Those benefits were greatly improved upon in later legislation, but advocates point out how long the measures ended up taking before those benefits flowed (though one should also remember that this was another example of the federal government needing to kludge together an imperfect solution with the limited levers available to them because this is largely an area of provincial jurisdiction).

We also need to point out that there seems to be a real problem with sloppily drafted bills, some of which can be attributed to the haste inherent in the pandemic.  One of the emergency bills that was passed, for example, contained sunset clauses in two different parts of the bill, but each were written in completely different manners, and it looked very much like two different drafters each submitted parts of the bill that were then mashed together and nobody went through to ensure any consistency in drafting language throughout and that does seem to be a problem.  Mind you, the fact that there were so many Senate amendments passed to bills in the previous parliament, there have been a lot of questions asked about why the process seems to have been less robust for this government's legislation than previous ones (though we cannot ignore that part of this is because this government actually did accept amendments whereas the previous one was not willing to in most cases, and flawed bills passed that needed amendments in future bills as well).

With Bill C-9, and the commercial rent subsidy contained therein, it was only after the bill had passed the House of Commons that it was flagged that there was a flaw therein that businesses needed to have paid the rent before they could be reimbursed, which didn't help businesses who are having liquidity issues and who don't have the money to pay it in order to get it refunded.  Of course, when Erin O'Toole started tweeting about this and demanding changes, it was a bit of a self-own because you would think that the official opposition would have actually studied the bill and flagged issues in it especially as this was a bill that was actually going through something that resembled a proper legislative process rather than being rammed through in one fell swoop as with previous emergency bills.  Mind you, Pierre Poilievre, the finance critic, spent Chrystia Freeland's Committee of the Whole appearance to needle her about the deficit and debt, as well as the Bank of Canada's operations which are independent from government rather than the bill itself, so that shouldn't be too surprising.  None of the other opposition parties were any better, using their questions to go after their particular pet grievances rather than studying the gods damned legislation, like it's their gods damned job to do.

Which brings us to where we are now.  A problem has been identified after the bill passed third reading and has been sent to the Senate.  Because Parliament is not sitting this week, the Senate opted to do a sort of "pre-study" of the bill even though an actual pre-study would be done before the bill passed the Commons so that amendments could be forwarded to the Commons committee and implemented then.  Regardless, it should be simple enough for the Senate to deal with an amendment, particularly if the government forwards it by way of the Government Leader or whichever senator is sponsoring the bill.  But no.

"We have an interim solution to ensure that rent payable is an eligible expense from day one," Freeland told senators at the Senate's national finance committee.  "After C-9 is passed…we will publish and swiftly introduce legislation to formalize rent payable as an eligible expense.  Given that this is our clear and publicly stated intention, we are confident that the Canada Revenue Agency will consider rent payable as an eligible expense from the moment the new rent program is launched there will be no delay."

It's nonsense, and this doesn't make it go any faster than the Senate passing the bill as amended, and sending it back to the Commons for approval, which can be done in an afternoon, just before Royal Assent.  I am starting to wonder about the quality of procedural advice that this government is receiving, and whether they have simply started to make it up as they go along.  If that's the case, then we are in serious trouble as a country who is supposed to have a grown-up parliament, especially if the opposition can't be bothered do their jobs either.

Photo Credit: CBC News