Over the past couple of weeks, with the great feigned outrage over the defence minister Harjit Sajjan's exaggeration regarding his role with Operation Medusa in Afghanistan, we have seen a number of troubling trends coming from the opposition ranks, and most especially from the Conservatives.  Apparently, our constitutional norms count for nothing when it comes to this performance, and this fact should be chilling to all Canadians.

When this story first erupted, the Conservatives were quick to pick up on it, eager to drape themselves in the mantle of defender of the Canadian Forces, and they immediately started using language about the incident that had a corrosive effect on some of the constitutional lines of civil-military relations.  They co-opted the term "stolen valour" to try and portray Sajjan's exaggeration as some kind of grotesque perversion of the actions of a soldier in glory-seeking, but if you look up the term, it refers to someone being a military imposter, which is a Criminal Code offence.  Sajjan is not a military imposter.

More troubling was the way in which the Conservatives nursed this notion that it was affecting the morale of the men and women in uniform and a number of them did go to the media anonymously to grouse about it.  The problem with trying to cash in on a few aggrieved voices from within the ranks and claiming that the military had lost confidence in the minister is that it very deliberately blurred those civil-military delineations.  The military does not get to decide if they have confidence in a political minister that's the prerogative of the prime minister who appoints him.  We have civilian control over the military in this country, which is a pretty important thing that the Conservatives would willingly try to nurse ideas that the military should have some say in who guides them, for the sake of a few sound bites, is a dangerous overreach, because it is essentially endorsing coup-talk.  Why anyone thought this was a good idea to score some points is utterly galling.

But it didn't end there.  After a week of getting insufficient traction from the government on demands for Sajjan's resignation, the Conservatives decided to use their Supply Day on Monday to put forward a motion of non-confidence in the minister something which is completely unconstitutional.

Under our Westminster system, the House of Commons decides whether the government as a whole has their confidence they do not decide on the confidence in individual ministers.  That again falls to the prime minister, and the government (meaning Cabinet) stands or falls as a whole.  That's why we have things like Cabinet solidarity in our system it's an important consideration that cannot be readily understated, and to try and go around it for the sake of scoring a few cheap political points is a pretty big deal.

Oh, but it's just "symbolic" and "non-binding," they argue.  But no the term "non-confidence" has actual meaning and weight under our system.  Trying to be cute with the term in the text of a motion is a big deal, particularly when doing so is blatantly unconstitutional.  If they wanted to express non-confidence in the government because they have proven that they can't handle an important file like Defence, and that they have no confidence in the Prime Minister's ability to choose competent cabinet ministers or what have you, then fine that's a perfectly legitimate motion that can be debated.  But this monstrosity on Monday that they trotted out was just that a grotesque perversion of what they should be doing as the Official Opposition.

At the same time, the Liberal government has dropped the ball on this whole affair.  I'm not talking about Sajjan's lack of explanation for why he embellished his role frankly, I really don't think it matters.  What does matter is that he apologised and took personal responsibility rather than blaming underlings, which is a rare act of political courage in this day and age.  This aside, that the government and Sajjan himself have refused to call out the opposition on either their dangerous blurring of civil-military relations, or on the unconstitutionality of the Supply Day motion is a problem.

The government's tactic instead?  Tease the release of the Defence Policy Review with accusations that the previous government underfunded the military to dangerous levels by constantly shifting dollars around when it comes to botched procurement projects, or to create a paper surplus in time for the election.  It was an attempt to both go on the offensive as well as to stick to their message discipline about how they plan to do great things for restoring our military capabilities…eventually.

Think about this for a minute our constitutional norms are now under attack, and they chose to respond not by pointing that out, but by trying to get their own message track out.  Is our very system of government not worth defending?

At the same time, the Speaker didn't rule the unconstitutional motion out of order as he should have.  The Liberals should have raised that before it came to the floor of the Commons, and if not at the floor, then rising on a point of order as their very first action when it did come to the floor.  But they didn't.  Instead of Sajjan responding to the Conservative motion by simply saying "Mister Speaker, the motion before this Chamber is unconstitutional" and either sitting down at that point, or reading the Conservatives to filth for not respecting the norms of Responsible Government, he reiterated his tease of the Defence Policy Review.  It was completely and utterly irresponsible.

If neither the government or Her Majesty's Loyal Opposition can be bothered to defend our constitutional norms, then what is the point of our parliament anyway?  Has it become so debased that it is now just a chamber for delivering talking points for media consumption rather than to discuss important matters of state, or to do the actual job of holding the government to account (which this Sajjan nonsense is most certainly not)?  It's time that we have a serious look at where we are headed, and I fear that the conclusion will be nowhere good.

The Senate's Standing Committee on Ethics and Conflict of Interest for Senators has completed its deliberation, and the verdict is unequivocal that Senator Don Meredith be expelled from the Senate, and his seat declared vacant.  The move would be unprecedented if it happens in Canadian history we have never before had to expel a senator, though we've come close on a couple of different occasions.  In any previous instance, the senator in question had enough of a modicum of shame left in them to resign rather than face the indignity of expulsion (and to no doubt preserve their pension while they were at it), but thus far, we have yet to see a sufficient level of contrition or indeed shame from Meredith.  When he and his lawyer finish digesting the committee's report, along with the Senate Law Clerk's legal opinion on the validity of the order, he may feel differently, and the precedent will remain stillborn.  We shall see.

The make-up of the committee should be an indication of the seriousness by which the Senate takes these matters of the five members, three are former judges, one is a lawyer who helped to draft the 1982 Constitution, and the final a former premier of the Northwest Territories who also has a legal background (though he recused himself for the consideration of this report to prevent the appearance of a conflict or partiality, and thus it was considered by only four senators).  Regardless, the fact that you have a group of this calibre not only study the Ethics Officer's report, but who also took into consideration the Senate Law Clerk's opinion with regard to the constitutionality of an expulsion order is also significant and shouldn't be overlooked.

The other thing that bears mentioning is that while the pundit class bemoaned the length of time this process took, it cannot be understated just how important it was that they adhered to due process in the most rigorous fashion possible.  One of the biggest problems with the suspension of senators Duffy, Wallin and Brazeau was that it was done in haste on the orders of the PMO in order to get then-Prime Minister Stephen Harper off the media hot seat, and could have caused the Senate a lot of problems if any of those three decided to pursue their cases in any particular way not to mention, it meant that they had a certain amount of sympathy from within the Chamber because their peers became disgusted with the way they were treated and the lack of the adherence to the laws of natural justice, rather than just remain angry about the allegations of misspending and breach of trust that got those senators into hot water in the first place.

In the time since the committee's report was tabled, we have seen a number of legal opinions that dispute the Law Clerk's considered opinion with regard to the constitutionality of an expulsion order, and they are coming from some pretty credible voices, including the former House of Commons Law Clerk.  According to some, because ethics considerations aren't included in the enumerated reasons within the Constitution for removing a Senator reasons which include bankruptcy or conviction of serious criminality that the reasons cited by the Committee and the Clerk are invalid.  The Clerk's opinion is that there are places where those enumerated lists aren't exhaustive, but more importantly, that this order falls within the realm of parliamentary privilege, which includes the precedents of MPs having been expelled from the House of Commons in both Canada and the UK.

While I'm not a lawyer by any means, my tendency would be to go with the privilege argument because of the broader consequence that has with regard to the nature of our institutions.  Parliament is self-governing, and as a parliamentary chamber, it's important that the Senate have the necessary tools to do just that govern itself, which includes policing the behaviour of its own members.  Parliamentary privileges are the means by which they can govern themselves without the interference of the courts, and this is precisely why they need to have that latitude that a strict adherence to enumerated sections of the Constitution don't allow.

The fact that there is a very high bar to remove senators is an important constitutional consideration, because these are people entrusted with the power to push back against a sitting prime minister with a majority mandate.  They need to have sufficient institutional independence to be able to do that without fear of being fired for speaking truth to power.  That high bar shouldn't mean that it gives licence for senators to abuse their positions so long as they remain within the enumerated constitutional lines either, and that's why the ability for them to have the tools to police themselves is so important.

The committee also recognized that they have to be held to a higher standard than simply not having committed serious criminality.  One section of their report stands out:

Because senators are appointed, and not elected, the public imposes on the Senate and senators a considerable degree of responsibility and faith that senators will do the right thing.  The public needs to be able to believe that senators will protect the interests not only of the many regions of the country, but that all senators will also protect the weak, the voiceless and the vulnerable from the personal and parochial interests of the powerful.  While the public would undoubtedly be willing to accept that senators are only human, they would still expect senators to be the best persons that senators could be.  It is a remarkably challenging undertaking that senators must be willing to accept.  To fail to uphold this undertaking is to damage that faith and trust.

If they are to have the public trust trust that has been damaged after years of poor conduct from a handful of their members (thanks in no small part to the negligent appointment process of the last Prime Minister, who regarded the Chamber with a certain degree of contempt), they need to have that ability to ensure that they can hold themselves to account, not unlike how judges hold themselves to account by means of the Canadian Judicial Council.

The need to keep parliament self-governing cannot be understated with respect to keeping our system of Responsible Government intact, and it is under threat.  A clear and present danger to that is the Auditor General's insistence that the Senate be subject to the oversight of an outside body a suggestion that offends the very notion of parliament being self-governing.  It's the same with the NDP's demands that a whole new bureaucracy be created to oversee the House of Commons in lieu of the Board of Internal Economy.  It matters that our parliamentarians govern their own affairs, lest we simply decide that Responsible Government was a failed experiment and turn affairs back over to the Queen.  It's in this same vein that it matters that the Senate be able to exercise its ability to govern itself, and expel one of its own who has abused his position.

Upon her return to the House of Commons after the Easter break, Government House Leader Bardish Chagger signalled her willingness to back down on some of the most egregious of her proposed changes to the Standing Orders in particular, the ideas around using scheduling motions to get legislation passed, but over the course of this, signalled that more time allocation was likely necessary.  She also signalled that they were moving ahead with certain other proposals those enumerated in the party's election platform and the howls of the opposition parties began anew.

"They're changing the rules for ever and ever," complained Conservative House Leader Candice Bergen to reporters in the Foyer after Chagger made her own statement, and this was the first time that day that my head exploded.  It would do so again several times over the subsequent hours, and my patience for this particular clown show has long since reached its end.

Every side in this dispute is wrong.  Bardish Chagger's ham-fisted insistence that these changes are necessary to "modernize" the House of Commons and its practices are unfounded and she is looking to create a number of problems where they don't exist currently.  As with a number of the promises they made during the last election when it comes to democratic reform, these are a number problems designed to appeal to those tired of Conservative abuses that only serve to make things worse if realized rather than better.  The opposition, meanwhile, is misfiring blindly, scoring a number of own-goals with their childish behaviour, apocalyptic rhetoric, and outright hypocrisy in the way they characterize the current government's behaviour when compared to that of the Conservatives, not to mention the fact that they have yet to walk their own talk when it comes to doing things like showing up on Fridays, or having their leaders there for QP even four days a week, let alone five.

Part of the problem is that there are no reasonable actors in this dispute.  The government is rushing blindly ahead because of this foolish promise, and they have this particularly demented notion that the solution to the problems that do exist in our parliament are to simply create more rules.  The Conservatives, having spent the better part of a decade abusing those very rules have no credibility in opposing the changes that Chagger proposes on the backs of those very abuses, and so they rely on torqued talking points and gross mischaracterizations to try and sell their message.  The NDP, meanwhile, alternate between unctuous sanctimony as the party that has never been in power, and being the worst offenders when it comes to the kinds of ceaseless empty speechifying that now dominates what passes for debate in the Commons.

Another big part of the problem with Chagger's approach with the creation of yet more rules is that there is a real danger when it comes to codifying conventions in our parliament.  We've seen this show play out before, especially with the issue of speechifying.  It used to be that there was no time limit to speeches, and when that got abused, they put a limit of forty minutes to speeches.  Instead of using that as an upper limit, MPs started feeling the need to fill that time, and when the limit was changed to twenty minutes, with a further ten minutes for questions and answers, the impulse to fill that time with prepared speeches ossified.

That's not to say that some of what Chagger proposes is entirely without merit empowering the Speaker to break up omnibus bills is not a bad thing.  If they can get the Speaker to sanction members during Question Period, and to loosen that time clock, it wouldn't be such a bad thing either, and there's no reason why these changes couldn't be done with the cooperation of the other parties.  Reforming the Estimates process as the government has planned to do is a long overdue change that needs to happen, but it shouldn't be done in the Hulk-like manner that Chagger is going about this.

But one of the complaints of the opposition parties, that changing the Standing Orders to ensure that the prime minister answers all questions during one QP every week, is where the problems will start, in that it will have the perverse incentive to encourage the current or future PM to only do the bare minimum of showing up just that one day a week.  Currently there are no rules about the PM's attendance or obligations in QP, which is the way it should be.  As with speaking times, this will create an expectation rather than solve a problem, which is part of the problem with creating new rules to combat past abuses.  You can't mandate honourable behavior with a rulebook, and creating new rules will just give future governments an incentive to find new ways to circumvent them, continuing the vicious cycle.

One of Chagger's other problematic talking points is that these changes are about holding future governments to account, which is mind-blowingly problematic because that's not her job.  Her job is to manage the day-to-day flow of legislation in this parliament, and she's not doing a very good job of it right now, allowing this particular debate to derail that.  Not to mention, any changes she makes in this parliament, a future parliament can undo or change again to suit their own whims.  She may as well try fighting the wind.

The deeper problems of the rotted debating culture in our parliament won't be solved with yet more rules.  In fact, undoing previous rule changes will do more to reverse the damage than simply trying to one-up each other in who can make a more "modern" parliament.  Restoring our proper Westminster traditions, which includes actual debate without prepared speeches, and returning power to the Speaker to police it, is the only way that we can hope to fix what ails our parliament.  But none of the parties in this fight are making that point, and if Chagger continues to bully her proposals through, we'll be far worse off than before.

In the wake of the Mike Duffy verdict, and all 31 charges against him being dismissed, we have seen the pundit class call for all manner of "fixes" to the way in which the Senate spends public money, and none more egregious than the calls that the Prime Minister somehow step in and start policing the place by holding onto their purse strings, or failing that, that MPs be allowed to supervise it.  Or the calls to replace the Board of Internal Economy in the Commons and the Internal Economy Committee of the Senate as each are "too partisan" in nature.

In other words, we are being told that parliamentarians cannot police themselves.  Well, that and that these pundits don't understand how our system of government works, either of which is a pretty serious problem, which we should probably start with.  For starters, the chambers are independent of one another.  The Commons cannot tell the Senate what to do, just as the Senate can't tell the Commons what to do, and that includes how they set their budgets.  In fact, the Senate was designed with institutional independence precisely so that they could not be intimidated by the Commons or the prime minister of the day.  It's a crucial check on the power of the prime minister, which is why suggestions that the Prime Minister is somehow obligated to put a check on the Senate by controlling their budget is preposterous.

The very last thing we need is to empower a Prime Minister to intimidate the Senate by controlling its budget, no matter how much of a whiff of scandal there is around the Duffy issue.  It's the same reason why it's a big problem when politicians try to meddle with the pay and pensions of judges or the Governor General because there is a conceivable future circumstance where the government would try to use that power to intimidate the other institutions who are there to provide a check on it.  Institutional independence is an important principle that needs to be upheld and respected, and for the pundits of this country to not grasp that concept is a problem, no matter how much distaste there is around Duffy and his compatriots.

The notion that if not the PM but rather that MPs should somehow oversee Senate expenses is just as much of a problem.  The operation of the chambers should be kept separate for that very same reason of institutional independence, and the last thing that we need is for a bunch of MPs trying to score points by monkeying around with the Senate's budget particularly at a time when they want to look tough.  The Senate has a job to do, and believe it or not, MPs don't understand what that job is most of the time.  If MPs had their druthers, they would prefer that the Senate rubber-stamp their bills with no fuss, if they should exist at all.  But that's not why the Senate exists, and MPs do resent it when the Senate doesn't fall into line and sign off on bills, particularly when there has been monkey business around those bills in the Commons (witness the single sports betting bill in the last parliament).  And if MPs want a veto on the Senate's budget, they should beware because the Senate will exercise their own veto on the Commons budget, leading to a war of mutual annihilation between the chambers.  No good can come of that.

And then there's the notion that parliamentarians should no longer look after their own expenses through their Internal Economy mechanisms.  And this one sticks in my craw a little more than ignoring the fact of institutional independence, because this one is about the nature of our democracy itself.  And it's just that this is a democracy and not a technocracy, and therefore it is incumbent upon us to trust that our parliamentarians have the ability to police themselves.  It's not that we need to give them blind trust no, we need to absolutely be vigilant that they are spending the dollars wisely, but that comes through openness and transparency, and not by creating a new bureaucracy for those parliamentarians to report to.  This is the same reason why the Auditor General's proposal that the Senate create an audit committee that they don't control is a problem because it removes their agency when it comes to parliamentary supremacy.  If we remove the agency of our parliamentarians, then we might as well just hand power back to the Queen, because the end result is all the same.

Despite what went on with Duffy and the other Senators found to have made questionable expense claims, there have been changes, even if the majority of the pundits in this country don't think so.  There are new clarifications around things like what constitutes a primary residence, there are new processes for justifying travel claims or contracts, and in the wake of former Supreme Court Justice Ian Binnie's report, even more clarification around how Senators are able to submit claims when they spend additional time after a business trip to stay with family.  All of these changes have happened, and the avenues for future misspending are closing.  But this doesn't mean that Senators should be submitting themselves to a higher authority.

In order to maintain their independence, Senators' obligation is to the Chamber itself, which can discipline its members as it sees fit hence the suspensions without pay of those senators who brought the place into disrepute.  The Senate itself is accountable to the public, and yes, they do respond to public opinion.  It's why they've spent the last number of years trying to rehabilitate their image, and to reach out to demonstrate the work that they do.  Institutional independence exists for a reason, and blowing up the system for the misdeeds of a couple of bad apples is not a solution anyone should look to.

Photo Credit: Senator Doug Black