Lessons of Attiwapiskat crisis: Duty to consult with first nations is sacrosanct

It has been over a generation since Canada has been witness to relations with its first nations which truly are at a tipping point, as Assembly of First Nations Chief Shawn Atleo aptly observed. While this crisis was spurred by the decision of Attiwapiskat chief Teresa Spence to begin her hunger strike a month ago in protest to Federal omnibus legislation, her actions served as a catalyst to a message the Conservative government chose to conveniently ignore; when making decisions that directly impact our first nations, the duty to consult is not optional, but a non-negotiable imperative.

The constitutional authority for the duty to consult can be found in the relatively recent Supreme Court of Canada case, Haida v. British Columbia (Minister of Forests). Chief Justice Beverley McLachlin set out a three part test indicating when this constitutional requirement is discharged:

(1) the Crown’s real or constructive knowledge of a potential aboriginal claim or right;

(2) contemplated Crown conduct; and

(3) the potential that the contemplated conduct may adversely affect an aboriginal claim or right.

 

Of significance is McLachlin’s insistence that the impugned government action does not need to have an “immediate” impact on land and resources. The mere “potential for adverse impact suffices”, she wrote. “The duty to consult extends to ‘strategic, higher level decisions’ that may have an impact on aboriginal claims and rights.”

http://www.lawyersweekly.ca/index.php?section=article&articleid=1291

 

The catalysts for this crisis were bills C-38 and C-45, and its “proposed changes to the Fisheries Act and the Navigable Waters Protection Act”. First Nations leaders expressed grave concerns that the proposed changes in the legislation would have a detrimental impact on their use and sustenance of their land.

 

According to Chief Steve Courtoreille of the Mikisew Cree, “We depend on … our livelihood, our way of life … out in the land. They’re [the government] supposed to protect our land, waters, air. Now it’s giving industry open season to our territory.” http://www.cbc.ca/news/politics/story/2013/01/07/pol-two-bands-duty-to-consult-court-challenge.html

The Chief added that his band was not consulted at all about these proposed changes which, as Haida reiterates, had a direct, if not adverse effect on an aboriginal right or claim.  He also suggests that this federal neglect of this duty to consult was the trigger for the “Idle No More” movement, one that has most recently gained considerable political momentum. http://www.cbc.ca/news/politics/story/2013/01/07/pol-two-bands-duty-to-consult-court-challenge.html

To be fair, some of these changes, most notably reflected in Bill C-45, can be considered an attempt to bolster the economic well-being of first nations, by expediting the burdensome process for leasing land pursuant to the Indian Act. Tom Flanagan remarks that procedures to designate land have been extremely cumbersome, mired in complex voting procedures that would often add considerable cost and months to the land designation process.

Bill C-45 was an attempt to respond to these concerns by making two key changes to streamline the process. The first was to replace “approval by order-in-council by approval of the Minister of Aboriginal Affairs”, and the second to streamline what would constitute a majority, “the same way chiefs of first nations are elected.  http://m.theglobeandmail.com/commentary/bill-c-45-simply-makes-it-easier-for-first-nations-to-lease-land/article6780103/?service=mobile

Where Flanagan errs, and likely draws the ire of the Idle No More movement, is in his dismissal of this constitutionally enshrined duty to consult. “Consultation has become a shibboleth of our time. It is, indeed, an essential part of democracy, but it can also become a constraint on freedom.” He adds, “prolonged consultation may give some people a veto to prevent other people from exercising their own rights.” http://m.theglobeandmail.com/commentary/bill-c-45-simply-makes-it-easier-for-first-nations-to-lease-land/article6780103/?service=mobile

While the proposed legislation is perhaps more efficient in enabling first nations to designate lands and reap economic benefits, to suggest that such vital decisions can be made without their input perpetuates old paternalistic modes at the core of the flawed Indian Act. It also continues the ongoing cycle of mistrust in relations between the federal government and first nations leadership. It understandably upsets first nations people to be told, even assuming the intentions are benevolent, that a federal government can make decisions for peoples to whom it owes a fiduciary obligation, without their input.

Flanagan’s well reasoned arguments do at least provide a rationale for the legislation, and a reminder to all that the status quo is mired in bureaucratic procedures likely inhibiting economic opportunities for many first nations in Canada.

But it is convenient to forget that the claim first nations have to the land predates colonialism, and our laws enshrine an obligation for the federal government to consult in validating continuous, constitutionally protected, indigenous land claims.

As a prime minister, Stephen Harper has often shown himself to be competent, attuned to the nuance of policy. But his grave error as a leader is an unflinching Machiavellian instinct where the ends almost always justify the means, and efficiency considerations trump due process. This is reflected in his top-down management style, an unprecedented use of time allocation to limit parliamentary debate, and his unrelenting preference for omnibus legislation to quell legitimate debate at the core of democracy.

Astute and prescient, Harper understood that he would have to bend, given Idle No More gaining political traction, and Chief Teresa Spence’s  unwavering insistence on a meeting with the government as a key demand of her hunger strike. The prime minister came to the inescapable conclusion that if he did not and employ a more consultative approach in addressing first nations grievances, the situation could escalate to violence. Though his recent about face is an encouraging sign, the situation remains volatile with social unrest palpable.

More cynically, the prime minister likely realized that his key economic priorities for resource development and extraction in a turbulent global economy run through the lands of our first nations. If the Haida decision is not at the core of his recent conversion to a more consultative style, the practical realities that his economic agenda and personal legacy risk being tarnished by hubris of his own design.

Politics aside, the challenges being met by first nations today are multifaceted, without a single cause or culprit. In Harper’s decision to employ a consultative approach as reflected in Haida, let us hope that we can genuinely heal the festering wounds in relations with our first nations, sowing the seeds for a genuine renaissance in which we all reap the benefits.  

Jeremy Richler has completed an MA in Political Science and an LL.B. He is a sole practicing lawyer in Toronto, and a member in good standing with the Law Society of Upper Canada.

 

Mayor Rob Ford mocks the rule of law as he denies the straw that broke his very own back

Though Rob Ford has always attracted his share of detractors, and has likely expanded its ranks given his ongoing boorish conduct, there is a very simple reason necessitating his immediate departure from office; he broke the law, and shows a callous disregard for the rule of law.

It was Rob Ford’s decision to participate in a vote against the resolution requiring him to reimburse the funds, and not his initial conduct of inappropriately soliciting $3150 worth of funds for his charity, that was the legal issue at stake here. The allegations made by the applicant, which were ultimately vindicated in the verdict, were that Mayor Ford had a pecuniary interest in the matter, thereby infringing s.5(1) of the Municipal Conflict of Interest Act. [MCIA] (http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m50_e.htm)

As a consequence of the verdict, Rob Ford was ordered by Superior Court Justice Charles Hackland to vacate his seat and office of the mayor within 14 days, and not to seek office again until 2014.

Certain pundits suggest, not without some justification, that the conflict of interest legislation herein is overbroad, and that the stiff penalty of recusal from office is unjust when the misdeed for which Mayor Rob Ford is charged pales in comparison with some of the more serious allegations other Canadian mayors are now confronting.

In spite of this, all elected officials have a fiduciary obligation to represent the interests of their constituents above their own. One’s own pecuniary interest can never intersect with this sacrosanct responsibility, and a conflict of interest clearly arises when the line is crossed.

It is section 5(1) of the MCIA which establishes the criteria for pecuniary conflict of interest in Ontario municipalities. It states that where a member has “any pecuniary interest, direct or indirect,” in any council matter under consideration, the member shall not:  

(a)                 disclose…the interest and general nature thereof

(b)                 take part in the discussion of, or vote on any question in respect of the matter

(c)                 attempt in any way whether before, during or after the meeting to influence the voting on any such question  http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m50_e.htm

Section 10(1) stipulates that any member found in contravention of the MCIA must be removed from office, and have their seat declared vacant, for a period of not to exceed seven years. In barring Mayor Rob Ford from seeking office again until 2014, a harsh punishment was delivered, but the maximum penalty was not handed out.

Regrettably for Mayor Ford, the facts in this case are clear. He did have a pecuniary interest in his football charity, and Ford clearly violated s.5(1)(b) of the MCIA when he voted on the matter at stake, and contravened 5(1)(c) in attempting to influence the vote.

The only plausible defence for Mr. Ford would be to nullify his expulsion would be through “inadvertence or by reason of an error in judgment.” http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m50_e.htm

Justice Hackland acknowledges that Ford’s behavior was “far from the most serious breach of s.5(1) of the MCIA,” but that “removal from office is mandatory unless the respondent’s contravention of the MCIA was committed through inadvertence or by reason of an error in judgment.” The burden of proof rests with the respondent. http://www.thestar.com/news/gta/cityhallpolitics/article/1293227–rob-ford-out-text-of-judge-s-decision

Justice Hackland dismissed Mayor Rob Ford’s defence, arguing that “inadvertence involves oversight, inattention, or carelessness, whereas the mayor’s participation was a “deliberate choice.” This is revealed by the fact that he received the council agenda a week in advance, and “planned his comments, which were designed to clear the air.” http://www.thestar.com/news/gta/cityhallpolitics/article/1293227–rob-ford-out-text-of-judge-s-decision

Even more appalling is that Mayor Rob Ford himself testified in court, back in September, that he had never read the MCIA itself, inadvertently confessing his own indifference to the law, if not outright incompetence. http://www.cbc.ca/news/canada/toronto/story/2012/11/25/toronto-ford-conflict-case-decision-release.html

The most striking line in the judgment is that “outright ignorance of the law will not suffice, nor will wilful blindness as to one’s obligations.” http://www.thestar.com/news/gta/cityhallpolitics/article/1293227–rob-ford-out-text-of-judge-s-decision

Justice Hackland does recognize that the MCIA is perhaps overly harsh in terms of punitive provisions, and does recommend “lesser sanctions” such as suspension of a member for 120 days when the infractions are less serious. http://www.thestar.com/news/gta/cityhallpolitics/article/1293227–rob-ford-out-text-of-judge-s-decision

In making these admissions, he acknowledges that the MCIA in its current form is less than perfect, and correctly proposes modifications to it.

Sadly, Mayor Ford not only rejects the judgment, but cynically makes a mockery of our legal institutions, and the very rule of law itself. Mayor Ford charges, “this comes down to left-wing politics. The left wing wants me out of here and they’ll do anything in their power to.” He then chides, “I’m going to fight tooth and nail to hold on to my job. If they do for some reason get me out I’ll be running again whenever the next election is, if there’s a by-election. My name will be the first one on the ballot.” http://www.cbc.ca/news/canada/toronto/story/2012/11/25/toronto-ford-conflict-case-decision-release.html

Nothing could be further from the truth. This is not a left-wing conspiracy, but Mayor Ford’s own intransigence and inability to admit that he broke the MCIA. Not only does Ford not show an ounce of contrition, but he denigrates the impartiality of our judiciary when making his baseless accusation of “left wing politics” with reference to the present verdict. He does this simply because Justice Hackland did not rubber stamp his haughty sense of entitlement, nor validate his vapid pleas for attention as the perennial, populist outsider.

Clayton Ruby, lawyer for the applicant, was prescient in his remarks following the verdict. “It is tragic that the elected mayor of a great city should bring himself to this: Rob Ford did this to Rob Ford, and “when you break the rules there’s a price to pay. It’s important for the courts to assert that nobody is above the law, Rob Ford included.” http://www.therecord.com/news/canada/article/843110–toronto-mayor-rob-ford-ordered-out-of-office-over-conflict-of-interest-case

Regrettably, not even the humbling experience of being removed from office could persuade Rob Ford that he was not above the law. Though he has every right to an appeal, the best thing for Mayor Ford now would be to immediately recuse himself from office, so that the great city of Toronto can transcend this ridiculous turmoil, and once again valiantly confront its most pressing challenges.  

Jeremy Richler has completed an MA in Political Science and an LL.B. He is a member in good standing with the Law Society of Upper Canada. 

Liberal leadership contenders boldly confront the party’s uphill climb

The Liberals mired in third place, and their future still uncertain, definitely have their work cut out for them. Cynics charge that the Liberals are in a perfunctory race that will coronate its front-runner, Justin Trudeau, and that the genuine reform needed to reinvigorate this moribund party will not take place.

These prognostications might be premature this time around, and at a pivotal moment in their party’s history, the Liberals might finally be learning from past catastrophic errors.

The Liberals have bled support in the past from a tendency to be overly reliant on a strategy of fence sitting, tilting to the right or left of the political spectrum depending on the direction of the currents. This approach reaped benefits when the right was divided and left, virtually non-existent, but has floundered in the face of a united Conservative party, and a resurgent New Democratic Party on the left. With a more focused opposition, the Liberals can no longer hedge their bets in perpetuity. 

But neither can the Liberals afford to become a radical, third party, bold in vision, but out of lockstep with public opinion. Andrew Coyne has long rightly argued that the Liberals have to abandon their timid approach, and inject ideas and vision to recalibrate and reinvigorate their brand.

But his prescriptions are overreaching. He advises the party faithful, “harden up the brand, persuade even 20% of the electorate that you are their party through and through, and you can build towards the day when you might contend for power once again.” (Andrew Coyne, “The Liberals’ only chance of survival is as a forceful, effective third party.” National Post, November 19, 2012, www.nationalpost.com )

Coyne neglects that all political parties must reach out to a diverse electorate, many of whom likely never voted for them before. The paradox is that an obsession with power and a cynically pragmatic approach is part of the reason that the Liberals are in this morass. Yet a chancy approach that speaks convincingly to only 20% of the electorate, hoping somehow that the boldness will persuade others in time, will likely ensure perpetual third party status and ultimately, the final nail in the coffin for the Liberals.

This begs the question, then, what do the Liberals have to do to again become a viable contender? The answer is to develop a strategy that is neither too dull nor too dicey, and instead embark on a journey that is innovative, practical, and marketable to wide swaths of the Canadian population.

In a nutshell, as James Carville once quipped, at the time an aide to Bill Clinton, soon to be most successful Democratic president in the United States since F.D.R., “it’s the economy, stupid.”

This message seems to finally be penetrating into what has until been the tin ear of the Liberal party. And if there is one candidate that might be blazing this bold yet practical approach, it is Martha Hall Findlay.

As a challenger to presumed front-runner Mr. Trudeau, Ms. Hall Findlay knew right away that the old, tired approach of fence sitting would not suffice. Nor did she pretend, as Liberals have been so inclined, to propose an interventionist, uninspiring left-of-centre platform likely to be abandoned should the party win power in the future.

Instead, she emphasized a socially progressive alternative to the hyper-partisan “win at all costs” government of Stephen Harper, conscious of widening income inequality, yet unflinchingly embracing globalization, free markets, and Canada’s ability to compete in a still uncertain interdependent economy.

Most refreshing is Findlay’s willingness to take on the status quo, with an objective of nixing supply management once and for all. This protectionist agricultural policy might have served its purpose in the 1970s, when there were “145,000 dairy farmers in Canada,” but has outlived its usefulness at a time when this number has dropped to “fewer than 13,000.” (Michael Den Tandt, “Findlay brings a dose of substance to Liberal beauty pageant”, National Post, November 19, 2012, http://fullcomment.nationalpost.com)

Ms Hall Findlay rightly points out that “the average Canadian family is spending hundreds of dollars more than they should be for staples such as milk, dairy products, poultry and eggs,” and that “[support] for dairy farmers is now coming at the expense of Canadians, and in large measure lower income Canadians.” (Michael Den Tandt, National Post, November 19, 2012)

This is an example of a bold policy idea, deviating from the play it safe centrist stance of the past, with the ability to garner votes given its broad based appeal. True, many dairy farmers are unlikely to approve of this direction, and their lobby is bound to place political pressure, but sound public policy triumphs when the public interest prevails over special interests.

The ironic twist, however, is that Findlay’s clarity and vision has also managed to enhance the credibility of front runner Justin Trudeau, as well as her own.

Until now, Mr. Trudeau, the prohibitive favorite, has been playing it safe. Though it is a classic front-runner’s strategy, the Liberal party cannot afford to be coy when its political opposition is focused, and its brand still in tatters. Definitive policy positions are required, and Mr. Trudeau is finally heeding the message despite some initial hesitation.

Until now, Mr. Trudeau was signaling promising policy contours, though void on specifics. In a recent op-ed, he discussed the need for pro-growth policies”, the need to “actively seek to broaden the positive effects of economic growth”, and “foreign direct investment and export growth to support job creation here in Canada.” (Justin Trudeau, “Canadian middle class left out of the growth equation,” Toronto Star, October 30, 2012, http://www.thestar.com )

These are legitimate pronouncements, but vulnerable to attack as vague platitudes, void of the specifics required to govern.

In a courageous, yet surprising deviation from the bland aforementioned script, Mr. Trudeau announced his unequivocal support for the acquisition of Calgary based Nexen by the Chinese state owned company CNOOC. Trudeau said that the deal is good for Canada “because Chinese and other foreign investors will create middle-class Canadian jobs …. More fundamentally, it is in Canada’s interest to broaden and deepen our relationship with the world’s second-largest economy.” (Lee Berthiaume, “Justin Trudeau backs Chinese takeover of Nexen as way to strengthen economic ties”, Postmedia, November 19, 2012, http://o.canada.com )

Whether it was pressure from Findlay’s innovative campaign launch, or a realization that the by-gone centrist fence sitting is now a non-starter, Mr. Trudeau’s decisive embrace of the CNOOC-Nexxen merger shows that he too has the gutsiness to challenge the Conservatives on the most pressing concern to Canadians; the economy.

The campaign still in its infancy, like Findlay, Trudeau is starting to show a capacity to grasp Liberal failures of the past, and the adjustments the party must make to vie for power again.

The question remains, will these modifications both Trudeau and Findlay are making be sufficient to resuscitate the Liberal party from the abyss? While the answer is unknown, it is encouraging to see the Liberals with the collective fire in their belly once again.

For the first time in a long time, it is now not inconceivable that the Liberal party of Canada might yet again form a government.

Jeremy Richler has completed an MA in Political Science and an LL.B. He is a member in good standing with the Law Society of Upper Canada. 

 

Obama victory affirms enduring Canada-US friendship despite some minor irritants

Most Canadians were breathing a collective sigh of relief when Barack Obama easily won re-election after what many pundits were predicting would be a close race. The presumed favorite of 86 % of the Canadian electorate, and even among a majority of Canadian Conservative voters, Obama and the Democratic Party are the undisputed preference in Canada. (“Nine in ten Canadians believe Obama will retain the Presidency and 86% would vote for Obama if they could.” Ipsos Reid, November 3, 2012, http://www.ipsos-na.com )

Obama’s win is a positive outcome for Canada not so much because his policy prescriptions were preferable, but because the values embodied by the President and the Democratic party are more analogous to who we are than the more conservative Republicans.

The visceral disdain towards the ameliorative role of the state by the ascendant Tea Party wing of the Republican Party alarm most Canadians. Even most Canadian Conservatives believe in a limited, but necessary role for government. As such, many are uneasy with the right wing of the Republican Party that does not speak to the Burkean value of prudence inherent to conservatism.

Rhetoric and values aside, however, some of Barack Obama’s protectionist leanings are contrary to Canada’s economic interests. The “Buy American” provisions discourage trade and investment with Canada, and the suspension of the Keystone XL project in 2011 are two such protectionist impulses.

Mitt Romney, the now defeated candidate for the Republican Party, was governor of Massachusetts and grew up in the border state of Michigan. He grasps Canada-US economic issues well, and was much keener to approve the Keystone pipeline, having often repeated he would do so on “day one” of his administration.

Former diplomats and envoys remained circumspect of Obama’s re-election during the campaign. In their article, “How Obama Lost Canada”, Derek Burney and Fen Osler Hampson argue that in rejecting the Keystone XL pipeline construction last year, “Obama’s choice marked a triumph of campaign posturing over pragmatism and diplomacy, and it brought U.S.-Canadian relations to their lowest point in decades.” Furthermore, “Canada has reacted by turning elsewhere — namely, toward Asia — for more reliable economic partners.” The Buy American bill in Congress “inefficiently excluded Canadian participation in infrastructure spending.” (Foreign Affairs, June 21, 2012, http://www.foreignaffairs.com )

Raymond Chretien, a one-time ambassador to the United States and now partner at the firm Fasken Martineau, also expressed some concerns with Obama’s policies towards Canada. On the Keystone XL matter, Raymond Chretien suggested that Mitt Romney would be a more reliable ally with respect to Canadian energy exports. Regarding Romney, “he sees our exports as a plus into the American energy equation. Obama’s not been as clear cut on that.” (Campbell Clark, “Romney or Obama: Who is better for Canada?”, Globe and Mail, November 5, 2012)

Similarly, the potential economic consequences of the fiscal cliff portend real trouble for Canada if the President and Congress do not reach a compromise on January 1st of next year. The Congressional Budget Office estimates that this combination of tax hikes and spending cuts that would ensue could “increase U.S. unemployment by a full percentage point, or two million jobs, and the economy would shrink by hundreds of billions of dollars.” (Chris Hall, “Is Obama really the best choice for Canada?” November 7, 2012, http://www.cbc.ca )

Canadian Finance Minister Jim Flaherty was blunt in his assessment of the consequences for Canada if there is a recession in the United States resulting from the fiscal cliff. “If that happens … the United States will go into a recession almost immediately of four or five per cent,” and “we would follow the United States into recession in all likelihood. And it wouldn’t take very long.” (Chris Hall, “Is Obama really the best choice for Canada?” November 7, 2012, http://www.cbc.ca )

It is therefore in Canada’s economic interests that President Obama obtains a compromise with Congress to avert this perilous fiscal cliff. The task at hand will be difficult, as the House of Representatives is controlled by the Republicans, several of whom have signed pledges never to increase taxes.

Barack Obama is demanding that any package to include swift spending cuts must also comprise tax hikes for the most wealthy Americans earning in excess of $250,000.00 The potential for an impasse remains, and any intransigence that ensues will be damaging for Canada as well.

Fortunately, there are good reasons to be cautiously optimistic that a compromise will be attained. Now that Obama has a renewed mandate to govern for the next four years in his final term, there are diminished returns to the Republicans by taking an excessively hard line and being resistant to compromise.

The Majority leader in the House of Representatives, John Boehner, was sounding conciliatory and hinting at a desire to reach a compromise. “Everything on the revenue side and everything on the spending side has to be looked at,” he said. “It’s clear that there are a lot of special- interest loopholes in the tax code, both corporate and personal. It’s also clear that there are all kinds of deductions, some of which make sense; others don’t.” (Carol E. Lee and Janet Hook, “Obama, Boehner open to Budget Bargain”, The Wall Street Journal, November 10, 2012, http://online.wsj.com )

These irritants aside, Obama’s re-election is the preferred outcome for Canada. Though a Romney led White House might have been more amenable to our energy exports, and a reliable ally in that regard, Obama’s  more collaborative approach towards allies than the go it alone style of the George W. Bush administration is in Canada’s national interest.

While Derek Burney and Fen Osler Hampson point out the negative consequences to Canada’s economy stemming from the Buy American legislation, and the initial rejection of the Keystone XL pipeline, they neglect to point out the intransigence and callous disregard of the Bush administration towards our softwood lumber industry. The decision of the Bush administration to go it alone in Iraq and the ensuing, and in retrospect, wise rejection of the Chretien government to follow suit temporarily damaged relations between our countries. As a consequence, these irritants ultimately forestalled a resolution to the protracted softwood lumber dispute, highlighting the interconnectedness of foreign affairs and trade.

An Obama win for Canada is not as obviously positive as the majority of Canadians believe, nor would a Romney loss have been as deleterious. But when observing the long election campaign in the United States, most Canadians were actively engaged, as happenings in the world’s most powerful country down south are keenly felt here. Despite some minor irritants, a solid majority of Canadians across the political spectrum swiftly decided that Barack Obama shared their values, and was a reliable friend. Mitt Romney never gained this level of trust, despite his sincere economic overtures.  

Notwithstanding potential irritants and challenges that lie on the road ahead, Canada-US relations will likely strengthen given the renewed mandate and unprecedented good will felt towards President Obama in Canada. Relationships are based on trust, and not so much on the intricacy of policy. Barring a major crisis between our two countries, this unbreakable bond can only endure during Obama’s remaining term as President.

The main disadvantage to this state of affairs is that President Obama barely has to try in sustaining our collective national trust, but I rest assured most Canadians slept well Tuesday night knowing that he was decisively re-elected one more time.  

Jeremy Richler has completed an MA in Political Science and an LL.B. He is a member in good standing with the Law Society of Upper Canada. 

Supreme Court majority makes a tough but proper decision in the Wresznewskyj vs. Opitz ruling

It is never an easy task for a Supreme Court to weigh in electoral decisions, as it is the job of the top Court to protect and uphold individual freedoms and liberty, and to leave political decisions for the elected officials. But it is essential for the judiciary to weigh in electoral results, albeit in  extremely rare occasions, where the very integrity of an actual election is at stake. Free and fair elections are at the cornerstone of any democracy.

The majority for the Supreme Court was correct in deciding not to overturn the final election result in Etobicoke Centre. Though it is unsettling that this election was won by the narrowest of margins and in the presence of irregularities, the Supreme Court must exercise great deference to Parliament and its institutions in the conduct of elections, intervening only in the most egregious of circumstances. Notwithstanding, that the Court unanimously agreed irregularities were a factor in Etobicoke-Centre sends the unmistakable signal that the conduct of elections is not above reproach, and requires significant improvement.

The Supreme Court had to adjudicate on two fundamental questions in this landmark ruling. First, the court had to determine whether Wresznewskyj “had satisfied his burden in establishing that there were ‘irregularities’ under s. 524 of the Elections Act, and that “Wresznewskyj had satisfied his burden to establish that the irregularities affected the election results.” (Judy Feng, “Ted Opitz et al., v. Boris Wresznewskyj et al: The Battle over Etobicoke Centre Election Results”, Centre for Constitutional Studies, http://www.law.ualberta.ca )

The Supreme Court concurred that there were indeed irregularities in Etobicoke Centre, but differed as to whether they affected the final result. Whereas the majority for the court found that the irregularities did not alter Opitz’ razor thin victory, the minority sharply disagreed and held that the election result should be annulled.

The majority established that the vast majority of the ballots overturned by the trial judge were done so in error, and on that basis, reversed his decision and held that the election result should not stand. Indeed,

at least 59 of the 79 votes disqualified by the application judge should be restored. The remaining 20 votes are less than O’s plurality of 26. Although the remaining 20 votes are not discussed, there is no reason to believe that any of the 20 voters were not in fact entitled to vote. Because W has failed to establish that at least 26 votes should be disqualified, his application to annul the election should be dismissed. (Opitz vs. Wresznewskyj, 2012 SCC 55 (CANLII) )

The decision is necessarily mired with technical specifics, but the gist for the majority is that the trial judge set too relaxing a threshold in determining an irregularity. Procedural errors, though inexcusable, cannot be determined to invalidate a result when there is insufficient compelling proof to conclude that the final outcome was affected. In finding that 59 of the 79 ballots should never have been invalidated, Opitz’ election victory margin was reduced from 26 to a mere 6 votes, or by the narrowest of victories.

The minority judgment, written by Chief Justice Beverly MacLachlan, found that the decision of the trial judge should not be disturbed “in the absence of palpable and overriding error.” As none were found in this case, the decision by the trial judge should be upheld and the election result, annulled. To be sure,

in this case, the application judge applied the correct burden of proof and, while he improperly set aside some votes, he did not err with respect to 65 ballots cast by persons not entitled to vote. As this exceeds the winner’s plurality of 26 votes, the election should be annulled. (Opitz vs. Wresznewskyj, 2012 SCC 55 (CANLII) )

A split decision was desirable in the case at bar, given the ambiguities in relation to the closeness of the result, and also in the presence of irregularities. Though the majority decision is preferable, requiring that candidates demonstrate stringent proof to show irregularities on a balance of probabilities, the minority judgment shows that determining irregularities itself is a complicated procedure, and one subject to interpretation. Another concern with the majority judgment is that it potentially elevates the burden of proof from a balance of probabilities to something closer to the criminal reasonable doubt standard, in setting such a high onus on the complainant.

Notwithstanding, the majority made the right decision for two fundamental reasons. First, the Court must only weigh in the political sphere in the most flagrant of circumstances, and overturning this result could set a very dangerous precedent, one whereby the Supreme Court becomes a forum of convenience for disgruntled candidates to adjudicate their disputes. The Court must strenuously guard against this undesirable outcome, and must use an exacting standard.

Second, the Court must vigorously defend section 3 of the Charter of Rights and Freedoms, which upholds the democratic rights to vote for “every citizen of Canada in an election of members of the House of Commons or of a legislative assembly.” (The Constitution Act, 1982, being Schedule B to the Canada Act, 1982, (UK), 1982, c.11.) In preserving this fundamental right, the Court must only set aside votes if compelling evidence establishes that irregularities affected election results.

Regrettably, the lessons of this precedential ruling did not seem to deter the Conservatives from their unmistakable partisanship. Shortly after the ruling, Ted Opitz declared that “a fair election took place, the result was clear, was then confirmed on a recount and the result has now been endorsed by the Supreme Court of Canada.” (“Supreme Court upholds Conservative win in Toronto riding”, CBC News, http://www.cbc.ca/news/politics) Given that the court unanimously found irregularities, the election can hardly be described as fair, and given a razor thin victory of six votes, itself subject to debate, the result was anything but clear. Such hyper-partisan remarks in the aftermath of a divisive and complex election battle cheapen the Supreme Court ruling, and undermine our democratic institutions.

This ruling underscores that although the primary function of the Supreme Court is to apply the law, there is a necessary role for the judiciary in preserving the integrity of our democratic institutions, and with it the fundamental rule of law. In arriving at such a narrow split decision, but unanimous in their finding of irregularities, the Supreme Court has sent the unmistakable signal that flawed election procedures must be remedied to restore confidence in our electoral process in the future.

Mr. Opitz should heed this vital message, demonstrate humility, and dispense with facile political talking points, endemic to the hubris to the Conservative Party of Canada. Although Opitz prevailed, irregularities have been exposed, and the confidence in our electoral process has been temporarily undermined. Sadly, even this stark reality could not call for magnanimity from our government, but let us hope all our elected representatives learn from this humbling experience.

Jeremy Richler has completed an MA in Political Science and an LL.B. He is a member in good standing with the Law Society of Upper Canada. 

McGuinty humbly faces the end of his political rope

After leading the Ontario Liberal party for sixteen years, and as Premier for the last nine, Dalton McGuinty has greatly exceeded expectations. Though he lost the election in 1999 to the ferocious Mike Harris Ontario PC attack machine, one that derisively referred to him as the man who “wasn’t up to the job”, he swept to power in 2003 and 2007 with decisive majority governments. McGuinty was victorious again with a large minority just last year, when the political winds had been originally decisively stacked against him.

Dalton McGuinty leaves office with a mixed record as premier of Ontario. To his credit, he displayed grace, fundamental civility, and a desire to lead in the interest of all Ontarians, especially after the acrimonious Mike Harris years. He demonstrated a desire to strike a balance between a strong economy, accessible healthcare, a world class early education, and a cleaner environment.

His greatest failure as a leader also stemmed from his overly congenial nature, in that he seemed too keen to please everyone, and just had a hard time saying no. The political winds of change ushering in his era for a more collaborative approach after the tumultuous Harris-Eves years, had been supplanted by economic uncertainty and a declining manufacturing base. These challenges, aggravated by the ongoing stench of scandal, were those McGuinty lacked the resolve to tackle with gusto. 

The political landscape was very different when Dalton McGuinty swept to power in 2003. Back then, changing of the political guard at Queen’s Park was welcome by many. Though his predecessor, Ernie Eves, tried to project a more moderate face to Ontario after the pugnacious tenure of the Harris government, Ontarians were tiring of the politics of polarization. Whereas tax cuts and economic competitiveness were the order of the late nineties, after the severe economic recession underpinning the tenure of the Bob Rae led NDP, a renewed focus on healthcare and education were a priority again in 2003, a time when economic fundamentals were sound.

Dalton McGuinty’s emphasis on education at the time was well received, especially after some neglect during the Harris-Eves years. There is no greater social good than an education system enabling our children to succeed and flourish as adults in an increasingly globally interdependent economy. It is through a vibrant education system that socio-economic barriers are broken and upward mobility into the middle class becomes possible.

But some of the McGuinty government’s priorities in education seemed questionable. Ontario’s fixation with small class sizes seemed a bit excessive. According to the Ontario Ministry of Education, “all primary classes have 23 students or fewer” and “90.6% have 20 or fewer.” (http://www.edu.gov.on.ca/eng/cst) The rationale for reducing class sizes for primary students is that “students in smaller classes get more attention, do better and are more likely to succeed in high school and beyond.” While an argument can be made for smaller class sizes, should it be a priority when evidence for its necessity seems inconclusive at best?  There are many factors which contribute to quality interactions between pupils and their teachers, and to fixate on class size to this extent is excessive. This decision has also exacerbated the deficit and long-term relations with the teachers, especially when such stark financial realities would later come home to roost.

Another McGuinty fixation was the zealous pursuit of full day kindergarten, at a cost of $1.5 billion. To date, evidence of its efficacy is mixed. On the one hand, “parents of full day senior kindergarten students reported more positive assessments of their children’s social skills, speech and muscle development”. But Doretta Wilson, who is the executive director of a Society for Quality Education “said the program’s price tag can’t be satisfied by short term gains, especially given the economic climate.” (Kate Hammer, “All-day kindergarten gets high marks in Ontario”, Globe and Mail, March 20, 2012)

The aforementioned economic climate and ailing manufacturing sector were critical challenges gripping Ontario and neglected by this government. To be sure, this government did introduce business friendly measures in acting to reduce corporate income tax rates and in phasing out the job killing capital tax. The global economic slowdown and protracted challenges in the United States, as well as the higher Canadian dollar undermining the competitiveness of our exports, are not the blunder of the McGuinty government.

Unfortunately, McGuinty leaves Ontario’s economy in far worse shape than when he inherited it. As Kelly McParland astutely notes, “the manufacturing base has eroded and the province that was once considered the mighty engine of Canadian prosperity now pockets over $3 billion in equalization payments, a “have not” province that needs outside help just to get by.” (Kelly McParland, “McGuinty quits after nine years as premier, leaving his party to peer over the edge”, National Post, Full Comment, October 15, 2012) This stark reality comes on top of a “$14.4 billion deficit” to which Dwight Duncan owned up to just hours before McGuinty’s resignation.

It was in his latest confrontation with the teachers stemming from his stern decision to rein in the deficit that McGuinty overplayed his hand, and sowed the seeds of his political demise. It was courageous for him to somewhat reverse what had often become too cozy a relationship with public sector unions such as the Working Families Coalition, who made him a beneficiary of their ad campaign against the Ontario PC party.

Indeed, while a wage freeze for teachers and public sector workers was arguably in order given the financial landscape, this government’s maneuver to impose contracts and strip unions of their collective bargaining rights was tantamount to a declaration of war, especially with these most previous stalwart allies. Not only was it an act of political stupidity on the government’s part, it demonstrated bad faith with a key constituency that had helped it garner power three consecutive times.

The final straw for McGuinty came just last week with the ongoing taint of scandal, this time with respect to a decision to scrap two gas fired plants in Mississauga and Oakville which was made during the last election campaign. The cost of cancellation greatly exceeded initial estimates, and it was revealed on “Friday when 20,000 more documents were released, despite the government already promised that there was nothing else to show.” (Matt Gurney, “After nine years, McGuinty saw a mistake he couldn’t aww-shucks away”, National Post, Full Comment, October 15, 2012) Misleading both the legislature and Ontarians is a grave error for which McGuinty would have an uphill battle surviving.

In the end, the crumbling economy, public sector battles and the stench of scandal were becoming for Dalton McGuinty a political death by a thousand cuts. He made the wise choice in tendering his resignation while public affection for his fundamental decency remains, rather than face the slings and arrows of what would have been an agonizing, indefinite mandate, one which would have ended in certain defeat.

Though he leaves political demons behind, McGuinty will be remembered as an upright politician, and a fiduciary of the public interest. One always sensed that for him, public service served a higher purpose, and the narcissism emblematic of  many in politics today never characterized him.

Unfortunately, his incessant desire to do right impeded his ability to sufficiently tackle Ontario’s most pressing economic challenges, to rein in incompetent ministers and allegations of scandal, and made him a sworn enemy of previous stalwart allies. It is an irony that McGuinty can posthumously learn his most valuable political lesson from his old nemesis and predecessor, Mike Harris; the old Machiavellian adage that there are indeed times when it is more important to be respected than loved.

Jeremy Richler has completed an MA in Political Science and an LL.B. He is a member in good standing with the Law Society of Upper Canada. 

Liberals stumble out of the gate with a $75,000 price tag

As the Liberal leadership race unfolds, the executive has sent the right signals for the contest. In selecting the next leader by April 2013, the party has left a sufficient window of time for a spirited race, but not one that drags on too long with a leader ready to square off against the more seasoned Prime Minister Harper and Tom Mulcair of the NDP. Similarly, in making the leadership deposit $75,000.00, the party is effectively deterring long-shot candidates with little chance of winning from wasting a huge sum of money. All serious candidates in this race better “forget about the price tag”, as Jessie J. astutely puts it in her pop single hit.  

The hope is that there will be a smaller, but more serious field of candidates in a competitive race the party can ill afford to crown, as they have the last half dozen times to their peril.

Despite these hopeful signs, the Liberals continue to make the same detrimental errors which have eroded their brand over the last decade, if not generation. The nascent infighting persists, the saviour syndrome remains on full display with the draft Justin Trudeau movement, and a genuine discussion of bold, transformational ideas is lacking in its entirety.

Let me now discuss each in turn.

There is bound to be tension within a party whenever the leadership rules for a race are announced. It is simply impossible to please all members, and some nerves are likely to be frayed. What is astonishing, but not surprising in the case of the Liberal party, is how open the fault lines have become and the hostility of the tone.

Take the remarks made by Ms. Judy Sgro in response to accusations that the entry fee is prohibitively expensive and too likely to deter candidates. Though there is merit to her comments, there is no mistaking that the sniping has begun. “If you can’t raise $75,000.00 for your entry fee, it’s telling you that there is no space for you.” She goes on further, “if you don’t have the profile to go out there and raise half a million dollars for your leadership campaign, then stay home.” (Tim Naumetz, “Potential Grit leadership candidates should ‘stay home’ if they can’t raise half a million dollars”, The Hill Times, September 19, 2012)

Ouch. Stay home? A rather harsh assessment, it seems. It is one thing for the party to encourage only those with a profile they believe will generate excitement in a race. It is in this context that the $75,000.00 fee makes sense. But how can a party, now in distant third place, and struggling for survival, tell any prospective candidate to ‘stay home’? These remarks contradict the party’s desire to become more open and inclusive, and suggest that the arrogance of Chretien-Martin years of power persist to this day as a third place party.

Dominic Leblanc, Liberal MP for Beausejour, NB was equally callous in his blunt assessment in favour of the $75,000.00 fee. He told reporters, “the Liberal leadership shouldn’t become some sort of practice for the Toastmasters Club. I think if you are going to practice speechmaking, there are other places to do it.” (Tim Naumetz, “Potential Grit leadership candidates should ‘stay home’ if they can’t raise half a million dollars”, The Hill Times, September 19, 2012)

Once again, Leblanc could have legitimately defended the rationale for a $75,000.00 entrance fee without berating Toastmasters. It is one thing to encourage only serious, competitive candidates to enter the race, and quite another to show contempt for potential participants. And besides, Toastmasters provides invaluable public speaking skills that politicians of all stripes can benefit from, especially in a Question Period where our MP’s often read their questions verbatim from cue cards!

The second major error the Liberals are committing yet again is their quest for a messiah, with Justin Trudeau meeting the criteria this time around. Indeed, this leadership race would benefit from someone with his name recognition and profile. He is bilingual, telegenenic, and charismatic. To his credit, he wrestled the riding of Papineau away from the Bloq Quebecois in 2008 when Liberal fortunes were sinking. Justin Trudeau did manage to hold onto this riding in 2011, when the Liberals suffered their most pronounced electoral defeat and lost their status as official opposition.

To the extent Justin Trudeau was able to pick up and hold on to the riding of Papineau, one which was not safe for the Liberals party when their fortunes were plummeting, speaks to his fine campaign skills, and perhaps an ability to grow the party nationally.

There are downsides to his candidacy, nonetheless. At 40 years of age, he was a successful school teacher prior to starting his political career, but otherwise his resume does appear to be thin. We have yet to know where Justin stands on some of the most pressing issues of the day. Is he a more left of centre Liberal that favours a more central, interventionist role for government, or is he more market friendly? Does he favour a return to a more Pearsonian approach to foreign affairs, with Canada as an honest broker? Would Justin relax the Canada Health Act and allow for more private medicine, or would he more severely punish provinces that allow buyers other than the government for the provision of doctor and hospital services?

In the event Justin Trudeau decides to run, answers to these questions are bound to become clearer, or else his iconic celebrity status will fade, and many Liberals will have yet again placed misguided hope in a false messiah.

Finally, these concerns lead into my final point. The Liberals need to engage Canadians on a national vision and set of policies that will excite them, and distinguish themselves from both the NDP to their left, and the Conservatives to their right. Though matters of policy and national vision are likely to become more salient once the leadership race kicks off in earnest, the party should now be making a more concerted effort to initiate a vibrant national discussion.

At their convention earlier this year, the Liberal party did approve a bold policy of legalizing marijuana, and using this policy to clearly distinguish themselves from the Conservatives. Though it was a bold undertaking, it was a bit of a dud as far as most of the population was concerned. Despite legitimate merit to the proposal, it was not a priority for Canadians, and Liberals need to speak more to issues such as the economy, health care and the environment which top the agenda.

Over the course of this leadership race, the Liberals are going to have to decide what kind of a role the government should play in the economy, and in so doing, retain a sense of cohesion and focus thus far lacking. The Liberals will have to choose between a vision that has been their cornerstone, advocating for a strong, central government promoting social programs to encourage equality of opportunity, or one that harnesses the forces of the market to ensure economic prosperity, so that there is then the necessary wealth to promote a just society. The Liberals must decide, and cannot have it both ways, as they have for a better part of a generation.

In sum, the Liberals have a golden opportunity now to redefine themselves, and present a viable alternative to an increasingly polarized political discourse between the Conservatives and the NDP. In spite of some hopeful signs, the never ending sniping within the tenuous Liberal family seems to persist to its peril, and a serious discussion on policy has been somewhat lacking. The Liberals must shake off these shenanigans now, or else even the most heeled prospective leadership candidate will be unable to forget about this very expensive price tag.

Jeremy Richler has completed an MA in Political Science and an LL.B. He is a member in good standing with the Law Society of Upper Canada.