A little light reading

Scott Sinclair's CCPA report on the painfully unbalanced Buy American deal is definitely worth a look in general. But let's make the analysis a bit more interesting.

Sinclair notes that Canada's commitments under the deal don't yet seem to include having municipalities sign onto WTO procurement standards - and that the countries have agreed to carry out more discussions next year. So knowing that the Harper Cons were happy to trade access to 2 years of its own stimulus spending plus provincial procurement rights in perpetuity for 11 days' access to only part of the U.S.' stimulus program, who's up for a betting pool as to how little Canada will get when it trades away those ongoing municipal procurement rights?

Under investigation

Following up on my earlier suggestion, it's worth noting that the Access to Information Act does include at least some offence provisions for individuals who deliberately withhold information contrary to the law - and that Christian Paradis' office is now under investigation. Which would figure to have some significant potential to jar some Con ministers out of their partisan-first attitude toward information management - and maybe give the PMO a bit of heartburn over its central command over department disclosures.

That said, I'd still think there's reason to establish some more broad responsibility on institutional heads to take reasonable steps to prevent abuses. But it's good to see that the law as it exists is being applied.

On weak defences

Shorter Norman Spector:

Some may have slammed Jim Prentice for attacking Quebec's vehicle emissions policy. But now the truth comes out: not only did Prentice single out Quebec for bashing without any particular reason, but he was also factually wrong in doing so. Take that, critics!

Ray Boughen: I'm Not Doing Much

Ray Boughen last month, explaining why we shouldn't worry that prorogation will mean that he's taking a vacation:

Although there won’t be any legislation passed until after all politicians head back to Ottawa in March, Boughen said the House is just one aspect of what an MP does on a regular basis.

“I plan to be here (in Palliser) every day from now until we go back to the House,” he told the Times-Herald on Wednesday, adding an MP facilitates between his or her riding and the various ministries, doing such things as campaigning for federal funding.

Ray Boughen today, explaining why he's doing nothing to stop the federal government from pulling its funding for First Nations University of Canada:

Conservative MP Ray Boughen, who represents Palliser, said he didn't have much to say on the decision taken by the federal government.

"Backbenchers aren't involved in a lot of these decisions," he said.

Now might be a good time to stop by Noah's site to help make sure Palliser gets a representative who actually has something to say about issues that matter in the riding.

To infinity and beyond

We are now the Mobius City. I can only assume Regina's last big stimulus project will be to renovate the Ring Road accordingly.

On misleading impressions

Memo to the Globe and Mail: in discussing a Dimitri Soudas e-mail about avoiding political interference, it's rather important to include the ";-)" and the "ROTFLMAO" for context.

On rationalizations

Shorter Adrian McNair:

There, there, Deficit Jim. If those mean and nasty G7 finance ministers and central bankers don't want to be conned into joining your self-serving photo ops, then they didn't deserve you anyway.

Harper-Proofing Canadian Democracy: Accountability for Information

There's been no lack of talk lately about Canada's federal access to information procedures, and the recommendations of the Standing Committee on Access to Information, Privacy and Ethics offer at least one set of proposals worthy of action. But there's a more fundamental issue at play which doesn't seem to have been addressed - and I'll suggest that it makes for the most important possible safeguard against the likes of the Cons.

Currently, the access to information system contains two main outlets to try to ensure that governments actually provide the public with access to information as required by law. The first is the review process which provides for recourse to the Information Commissioner and ultimately the Federal Court against any decision by a government institution to deny access. But that process leads to no final result other than the disclosure of whatever documents should have been released in the first place (and perhaps an award of costs to merely account for the expenses of actually pursuing the case). Which effectively invites an unscrupulous government which wants to keep its actions secret to simply refuse to release information until forced to through the courts.

In principle, that impulse is supposed to be checked by ministerial accountability for access to information within a department - with theoretical political consequences for a minister who consistently suppresses information. But that kind of moral suasion is obviously rendered ineffective when it's applied to a government with no shame.

What's more, the notion of political costs as the consequence of failing to provide required information only encourages a government to see access to information in political terms, and to centralize its operations for partisan benefit as the Cons have done. If each minister exercises practical control over his or her department, then it might be easier to actually hold accountable the ones who are more secretive. But if all of them simply pass along documents for redaction by the PMO while being able to point fingers elsewhere without practical consequences, then political self-preservation may well weigh in on the side of playing along with information suppression even if a particular minister wouldn't be inclined in that direction.

That's where we are now: a system with no sense of individual responsibility where the statutory processes which theoretically provide access to information can be flouted by a government which simply declines to follow the law. So let's make it unmistakably clear that ministers and departmental officials are in fact individually responsible for their actions in dealing with information.

It would seem to be a simple enough matter to set up a system of regulatory penalties for noncompliance with the Access to Information Act, with ministers or other institutional heads bearing explicit supervisory responsibility for what happens within their departments.

Of course, the idea wouldn't be to create automatic punishment for any delayed response or disagreement as to what ought to be redacted - factors which could be taken into account by providing defences for good-faith action and reasonable reliance on the advice of officials. And it would make sense to create a filter for frivolous accusations by ensuring that the Information Commissioner gets to determine which cases actually justify prosecution (similar to the process under the Canada Elections Act where the Chief Electoral Officer has to refer matters to the Elections Commissioner for investigation).

But in the case of officials and institutional heads who might deliberately suppress information without a legal basis to do so, the difference between facing no repercussions other than losing an argument in court and facing personal legal liability would create a strong incentive to make decisions on the departmental level in accordance with the law. And since the cost of withholding information in bad faith would be personal rather than political, there would be far less inclination to farm out decisions to the PMO or any other department on the assumption that the government can get away with whatever it wants as long as it sticks together.

In sum, before Parliament spends much more time tweaking the types of exemptions or orders available under the current system, it would be well served to first take the single step which is most likely to force even a government as controlling as Harper's to take notice of the consequences of depriving Canadians of their right to information about how their country is run. And if the result is a system where all departments are motivated to set up better-functioning access to information systems which last under future governments, then so much the better.

Deep thought

I'm shocked, shocked, to find out that the Con political hacks are suppressing requested information without any legal justification rather than leaving the decision with "arm's-length officials".

On giveaways

Speaking of Canada's international pariah status under the Cons, it's far too predictable that anybody who's worked to be excluded from the international community will end up making serious mistakes in trying to fit in. Which brings us to the Cons' announcement that they're prepared to trade away provincial and municipal freedom of action permanently in exchange for partial access to eleven days' worth of the U.S.' dying stimulus program.

There's been no lack of commentary on the topic already, and most of it has pointed out the similarity of this deal to the one that paid the U.S. a billion dollars to punish Canadian softwood lumber producers. But let's look in a bit more detail at some of the mistakes that were repeated between the two negotiations.

First and most glaringly, there's the Cons' continued pattern of working against allies rather than in their interests. In the case of the softwood lumber dispute, the Cons excluded friendly parties on both sides of the border from negotiations while allowing the U.S. lumber lobby to have constant influence, then spent most of their time after striking the deal trying to force Canadian industry to go along with it. Likewise this time, the Cons seem to have done far more work getting the provinces to sign away their ability to procure locally than figuring out whether there's any benefit in trading that sovereignty away.

Similarly, in both cases the Cons appear to have decided first that some kind of deal absolutely had to be struck, then gone into negotiations seeking only to make whatever concessions were necessary in order to be able to walk out holding a signature from the other side. The result is a photo op based on waving a piece of paper around - and dealing with the consequences of what that piece of paper says later if at all.

Which leads nicely into the final obvious similarity, being that neither agreement actually seems to have resolved anything with any finality. In the case of the softwood lumber agreement, it took less than a year after formal approval of the agreement for the Cons to start looking for ways to concede even more, or even begging for U.S. approval to carry out exactly the measures the U.S. demanded in the first deal.

But this factor may be even worse for the latest set of negotiations. As many of the commentators on Buy American have noted already, the deal would never have been necessary if the U.S. had adhered to the terms of previous agreements, meaning that we're once again simply throwing more and more on the table in hopes that the U.S. will live up to promises that it's actively breaking. And this set of negotiations goes even further in that the Cons are explicitly relying on the outcome only as a "precedent" for future U.S. procurement, rather than even trying to secure wording that might bind more than 11 days worth of purchases.

For those looking for whatever silver lining can be found, it's worth noting that the Cons have miraculously only done this twice on high-profile issues during their time in office, rather than setting up monthly sessions to grant greater and greater concessions to the country Stephen Harper wishes Canada would become. But based on what we know to happen when Harper sits down at the negotiating table, there should be every incentive to remove the Cons from any position to pick up the pace.

On rejection

For those wondering how the Cons' efforts to turn Canada into a global pariah are working out, look no further than their success in clearing the room at Iqaluit - where not a single G7 visitor stayed for the closing feast, presumably due to urgent hair-washing appointments.

But if Canada has reason to be embarrassed for the moment, there's surely a lesson to be learned here. Just take it from the G7: wherever Deficit Jim Flaherty wants to railroad you is the last place you want to be.

On silver linings

BCL picks up on what looks to be the most interesting question surrounding Jim Pankiw's entry into the next election in Saskatoon-Humboldt: namely, what are the chances that his candidacy will help shift the riding into the NDP column? But while BCL notes Pankiw's recent vote percentage alone, let's take a look in some more detail at how past Saskatchewan MPs/MLAs have fared in recent years when challenging party candidates as independents.

To start with, it's worth noting that while plenty of high-profile candidates have tried similar gambits to Pankiw's, none has yet managed to either win a seat in the past decade, or even have anything but the most tangential impact on the outcome in any riding. Instead, here's how they've fared:
- Former Con Premier Grant Devine posted the best share of a popular vote, taking 27% of the vote to finish second in Souris-Moose Mountain in 2004. Devine came within 10% of Con victor Ed Komarnicki's share of the vote in a riding where Con/Reform candidates otherwise haven't faced a race closer than 44 points since 1997. Note that this race didn't involve an incumbent candidate from any party.
- Pankiw himself has run twice as an independent in federal elections. His 2004 Saskatoon-Humboldt result was the closest any independent candidate has come to either winning or obviously flipping a Saskatchewan riding in recent decades: Con Brad Trost took just under 27% of the vote to narrowly beat out the NDP's Nettie Wiebe and the Libs' Patrick Wolfe (just under 26% apiece) and Pankiw at 20%. But he nonetheless came in fourth place and came closer to tipping the riding into NDP or Lib column than he did to retaining the seat himself.
- In 2006, Pankiw came in a distant third with 14% in Battlefords-Lloydminster - though there he apparently didn't have any impact on the relative strength of the other parties, as the Cons, NDP and Libs each seemed to lose 4%-5% of the vote to make up Pankiw's share.
- Having previously won Desnethé–Missinippi–Churchill River for both the NDP and the Libs, Rick Laliberté finished fourth with just under 10% of the vote in 2004 as the riding's incumbent. It's worth noting that Laliberte was the only candidate on this list to spoil the riding for his most recent ex-party on paper, as the Libs lost by a lower share of the vote than Laliberté took for himself.
- Finally, the ultimate in futile independent runs came in Regina-Lumsden-Lake Centre, where even with the advantage of incumbency Larry Spencer could only hold 5% of the vote in 2004 as Tom Lukiwski first won a seat in the House of Commons in a tight three-way race.

From that track record, there's little reason to think that Pankiw will have much chance of emerging victorious in the next election: even the track record of having won in the previous election wasn't enough to keep the seat in his hands back in 2004, and there's no indication that he'll be any more successful now. But there would seem to be a reasonable chance of his siphoning off enough of the Cons' vote to turn the seat into a winnable one for the NDP, which has emerged as the strongest challenger for the seat in 2006 and 2008 (in fact picking up its share of the vote while the Libs have dropped into the low double digits).

So in order to try to turn Pankiw's hate into something positive, now would seem to be a great time to show your support for Denise Kouri. And if the result is that Trost ends up as the next candidate to be reduced to running as an independent after the Cons decide to try to put an even more friendly face on their same old brand of bigotry, then so much the better.

Update: added links.

Update II: Welcome to those finding their way here from the Boycott Jim Pankiw, Boycott Racism Facebook group, which already boasts an impressive 2,000+ members just days after Pankiw announced his run.

On devotion

Shorter Q & A with Con MP Stephen Woodworth on Stephen Harper's decision to shut down Parliament:

Q: Why did Stephen Harper prorogue Parliament?
A: I have faith in Stephen Harper. Stephen Harper is all-seeing and all-knowing. Stephen Harper works in mysterious ways, and has delivered unto us all the bounty in this world. Therefore, let us never question that if Stephen Harper chose to prorogue, then he was right in doing so.

On wrongful control

The Cons are apparently offering up a helpful example of the distorted balance of power between top-down parties and riding associations. But it's worth noting just how it is that they're seeking to protect Rob Anders from a riding association which wants him gone:

The tumultuous history of the federal Conservative riding association in Calgary West continued this week with the Tory party's national council apparently assuming control of the association board.
...
In a letter to the Calgary West riding association on Thursday, the national council said it would take control of this year's annual general meeting and will have the final word on any riding association spending.

"They haven't gone as far as disbanding the board," Anders said.

So what's noteworthy about that decision to effectively take over the finances of the Calgary West riding association? Let's take a quick look at a few key terms of the Canada Elections Act as to who's responsible for the finances of an electoral district association:

403.02 (1) An application for registration of an electoral district association of a registered party may be submitted to the Chief Electoral Officer by the association, and must include
...
(d) the names and addresses of the chief executive officer and other officers of the association;

(e) the name and address of the appointed auditor of the association; and

(f) the name and address of the financial agent of the association.
...
403.16 (1) Within 30 days after a change in the information referred to in subsection 403.02(1) other than paragraph 403.02(1)(b), a registered association shall report the change in writing to the Chief Electoral Officer. The report must be certified by the chief executive officer of the association.
...
403.27 The financial agent of a registered association is responsible for administering its financial transactions and for reporting on them, in accordance with the provisions of this Act.

403.28 (1) No person or entity, other than an electoral district agent of a registered association, shall pay the registered association’s expenses.

(2) No person or entity, other than an electoral district agent of a registered association, shall incur the registered association’s expenses.

(3) No person, other than an electoral district agent of a registered association shall accept contributions to the registered association.

(4) No person, other than the financial agent of a registered association, shall accept or make transfers of goods or funds on behalf of the association.

Of course, a national party ultimately holds the power of deregistration to try to keep its riding associations in line. And presumably there wouldn't be any perceived problem with a national party providing administrative assistance which a riding association actually wants.

But the Canada Elections Act couldn't be much more clear in specifying that it's the riding association that has the authority to appoint its financial agent(s), and those agents that hold sole authority and responsibility to make financial decisions on behalf of the riding association. Which means that to the extent the Cons are declaring an intention to control the finances of their Calgary West association regardless of what its officials have to say, they're declaring that as far as they're concerned, internal party control trumps the law of the land.

That would be a striking enough statement on its own. But it's doubly so based on the fact that the Cons' recent victory in securing reimbursement for some of their Conadscam expenditures was based in no small part on the court finding that candidates' agents (who occupy a similar position to electoral district associations' agents during an election campaign) actually did retain control over decisions on how their finances would be managed:

The evidence on record conclusively establishes that the RMB program was a completely voluntary endeavour undertaken by individual campaigns. This is evidenced by the fact that the candidate in the Cardigan-Malpèque riding did not participate despite his initial commitment.
...
(I)t was perfectly lawful for the Party to put a condition on the use of any sum of money that would be transferred to a local campaign. It was up to the campaign to accept or refuse such condition, just as it was up to the campaign to accept to participate in a regional media buy organized by the Party.

Of course it's true that the candidates and agents involved in Conadscam were under plenty of pressure to go along with the party's scheme, just as the Calgary West riding association is presumably being told to "consent" to central party control or face deregistration. But the Cons' direct statement that they plan to take the "final say" in any and all expenditures by the association seems to go significantly further than they've gone before in imposing direct party control on what's supposed to be an independent entity.

Which means that in addition to the slight against riding-level democracy implicit in the Cons decreeing that they'll be taking control of the Calgary West association's operations, the Cons have given Elections Canada every reason to keep a very close eye on what happens in the riding from here on in. And the actual members on the ground will themselves have every reason to wonder just what it is that the Cons plan to do with the association's financial reserves when they obviously don't trust it to act for itself.

Musical interlude

Dirty Vegas - Simple Things

All the best

Needless to say, I'll join in among those wishing Jack Layton well in his recovery from prostate cancer in the wake of today's announcement. But I'll also take a moment to give full credit to everybody who's expressed similar wishes from across party lines - helping to remind us that just as news like Layton's forces us to put politics in perspective, so too does it tend to bring out the best on all sides.

On protest initiatives

In case anybody thought the HST was finished as an issue, a couple of recent developments have helped to push the Harper-funded tax hike on individual consumers back into the headlines. But it's worth noting that the effort which may seem more quixotic at first glance is easily the one with the best chance of changing the direction of the province involved.

In B.C., the big news is that the HST may become the first citizen-driven issue ever to be voted on in a province-wide referendum if HST opponents can gather enough signatures before April 6 on a petition initiated by Bill Vander Zalm. And it's true as Jeff notes that the number of signatures which needs to be gathered in support of a referendum vote will make for a daunting task.

But the requirement for 10% of the electors in each riding seems somewhat less problematic when one remembers that the public is generally 80% opposed to the HST to start with - meaning that there's a large pool of discontent to tap into, as well as a larger pool of citizens with reason to work toward the cause than would normally be the case for any issue up for political debate. And based on those polling numbers, there can't be much room for doubt that the No HST side will be the heavy favourite in any referendum that follows - which can only help efforts to get individuals working toward the cause.

Moreover, the petition drive may well serve as a serious warning to the Campbell government even if it falls short of the 10% standard in a few ridings. So far, Campbell has generally tried to ignore opposition through polls, rallies, Facebook groups and the like - which has been easy enough to do given the lack of a direct connection between those groups and electoral lists.

But Liberal MLAs who see voters representing more than their margin of victory putting pen to paper to oppose the HST may have reason to think twice about their willingness to go along with the imposition of the tax. Which means that the indirect effects of the petition drive may be able to turn the tide even if the direct ones don't turn out as planned.

Meanwhile, the latest news out of Ontario seems to signal that there's far less chance of the HST being repealed or even altered there. And that's not just because the NDP came in only a close second in the Toronto Centre by-election where the HST was a key issue in its effort to topple the McGuinty Libs.

Instead, the biggest problem in Ontario is that public debate seems to have turned toward the concept of reducing a blended tax rather than deciding whether or not to implement it at all. Which looks to be a mistake since (as I've pointed out before) the agreement signed between the federal and provincial governments actually requires the province to keep the HST rate at its planned 13% until at least 2012.

As a result, the Canadian Federation of Independent Business or anybody else looking for a reduced HST rate doesn't just have to convince the McGuinty government to back off of its plans, but also has to lobby the Harper government to allow the change. But if any change in the rate will involve effectively shredding the deal signed by Deficit Jim Flaherty and Dwight Duncan, then there's little reason to aim low in merely seeking a reduced rate (and thereby alienating those who oppose the tax altogether), rather than working to stop the implementation of the HST as a whole.

In sum, then, the more ambitious effort in B.C. looks to be the one with a significantly better chance of actually putting the brakes on the government's HST plans. And it'll be a fascinating few months as the petition drive develops.

The reviews are in

Susan Riley on how Stephen Harper's political strategy continues to be based on insulting the intelligence of Canadians in general:

Judging by polls, they aren't rebounding from the self-inflicted prorogation crisis as quickly as they have from previous miscalculations. Instead, they seem to be making things worse. Having been caught out in one bit of cynical strategizing -- shutting down Parliament to dodge uncomfortable questions about the treatment of Afghan detainees and to "recalibrate" -- they are trying another.

The latest gambit is a challenge to the other parties to work through scheduled breaks in March and April because "there is so much to do." If there's a lot to do, it is because Harper needlessly extended everyone's Christmas break -- not that he would ever admit that.

Instead, he is back to "treating Parliament like his playhouse" according to early online reaction, back to strategy over substance, revenge over reconciliation.

And, again, he is treating voters like idiots. Everyone can see through this transparent attempt to confound the opposition: only a prime minister who thinks we are stupid, inattentive, or as obsessed by strategy as he is, would have the gall to play this card again.

Fixed

Tony Clement's spin on the Cons' economic priorities notably leaves room for interpretation. So let's fix it to clarify what the Harper government actually believes:

I believe that the dichotomy between the knowledge economy and the manufacturing economy is a false dichotomy. Instead, we're commited to becoming an oil exporter and tax haven to the exclusion of both.

On building pressure

The major news on the Saskatchewan political scene this week has involved the Saskatchewan Urban Municipalities Association convention. But while there's been some reporting on the headlines as to what's taken place, it's worth noting the challenges this week's events may pose for both the Sask Party and the NDP.

To start with, it's of course noteworthy for what was undoubtedly a bad-news speech to be met with an unusually positive reception. But there may be more than one reason why delegates felt compelled to go along with a standing ovation for an announcement that they weren't going to receive promised funding:

The government also promised that a new, permanent revenue-sharing formula would begin this spring, so that communities would, on an annual basis, get the equivalent of a full one point of the PST. But instead of getting that full point — which would have equalled $221 million in the upcoming March budget — Wall confirmed revenue-sharing cash will likely be frozen.

Despite the news, SUMA delegates gave the premier a standing ovation, with the organization's president Allan Earle saying he's confident the government will fulfill its revenue-sharing promise in another year — especially since that will be the last budget before a provincial election.

"I am going to remain optimistic that that's the way things will play out," Earle told reporters.

"I think if for some reason the premier were to come back a year from now and say 'We're sorry but we're just not going to be able to do it,' we'd be extremely upset."

Regina Mayor Pat Fiacco said the freezing of municipal funding will have an impact on the city's plans, as officials involved in the budget process had been anticipating the increase promised last year.

"In Regina's case what it means is some of the projects that we wanted to put forward in the 2010 budget, and these projects are all based on managing growth, will be put on hold," Fiacco said.

But Fiacco, who publicly criticized the government late last year when Wall signaled he may not get to the full one-per cent revenue sharing formula as soon as planned, appeared conciliatory Monday.

"What we all heard from the premier today is that as a result of potash their budget has been compromised. As a result of potash, the municipal sector will see a freeze in their revenue sharing, but he also committed that in 2011 we will see the full one per cent of the PST to municipalities," said Fiacco.

Now, it's probably true that at least part of the delegates' motivation was to play nice this year in the hope that Wall would return the favour in next year's budget. But the statements from Earle and Fiacco - as well as others reported from the convention - would seem to fall short of justifying a standing ovation as opposed to a mere willingness to politely accept Wall's current position.

So why would SUMA's delegates act enthusiastic about Wall's latest position if delegates actually aren't that pleased with the Sask Party? I'd think there's a strong chance that at least some municipal leaders are acting out of self-preservation, figuring that they can't afford to be on Wall's bad side in the long term lest they be punished if he's still in power past the next provincial election.

Of course, it would seem on its face to represent a victory for Wall if he's sufficiently feared to be able to strongarm municipal leaders into feigning their support. But there would be an obvious downside as well: surely municipal politicians can't be happy to feel compelled to bow to the will of a premier even when he's announcing his intention to break promises to them. And that means that public shows of support for Wall may well be coupled with behind-the-scenes efforts to replace him - if municipal leaders see an opportunity to do so.

Needless to say, that's where both the risks and the opportunities for the NDP come in. It's of course a bad sign for now if municipal leaders see themselves as being under Wall's thumb to the point where they need to prove their fealty even while being told the government won't follow through on its commitments. And a significant part of the NDP's work in reaching out to will presumably have to involve demonstrating that efforts to work against Wall in an election either won't fail or won't be punished.

But the more the Sask Party keeps a lid on municipal anger at its government, the more pressure will build up out of its view. And if the NDP can combine a strong vision for municipalities with a realistic prospect of toppling Wall in 2011, then all the municipal frustration that's now being suppressed may serve as a major opportunity for the NDP to turn the political tide.

On last-place analysis

Shorter Don Martin:

As the idea of not allowing MPs to take priority position for Olympic tickets ahead of the public originated with the NDP and spread next to the Libs, I naturally give full credit to the Conservatives.

Burning questions

I'm not sure anybody else has asked a couple of questions about media treatment of ten-percenters in the wake of Sun Media's report yesterday. So let's raise them now.

First: is there any precedent for a Canadian political party making the content of its ten-percenters available in advance as a media story?

And more importantly as a practical matter, if Canadians are rightly annoyed by ten-percenters generally, then doesn't it only make matters worse to give the Cons free media space for the content of their partisan advertising to boot?

Unappealing options

For those wondering what might happen based on the Cons' predictable refusal to do anything to correct the ongoing Charter violations against Omar Khadr recognized by the Supreme Court of Canada, there are a couple of possible options. But I wouldn't count on either of them coming to fruition.

If the goal is to have the Supreme Court revisit its decision immediately in light of the Cons' refusal to act, the Rules of the Supreme Court of Canada allow for an appeal to be re-heard on an application made within 30 days of a judgment. But a re-hearing is only granted if the Supreme Court concludes that it "misled itself or was misled as regards what was the record before it, the nature of the issues, or the questions to be addressed" (Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 2 S.C.R. 167). And while it seems clear that the Supreme Court's implicit assumptions about the federal government being interested enough in the constitutionality of its actions to rectify an identified and ongoing Charter breach have been proven wrong, it's hard to see how that risk wouldn't have been before the Court in light of the Cons' previous treatment of Khadr.

Moreover, the Cons's stance that they're still "reviewing" the decision leaves the door open to the theoretical possibility that they might take action in response to the decision - no matter how obvious it is to any observer that they won't do so. And I'd fully expect them to drag out any firm statement until after the normal reconsideration period has expired.

Assuming Khadr can't win a re-hearing, his other option will be to start again with an application to the Federal Court - this time with the Supreme Court's decision serving as a direct precedent on the court's authority to make any binding orders. And ss I've noted, the decision at least allows for the possibility that such an order could be justified. But I wouldn't bank on a lower court being willing to declare that circumstances have changed substantially since the Supreme Court's decision - or on the Cons actually following through even if an order requiring them to act in a manner consistent with Khadr's Charter rights survives the appeal process.

Update: Dr. Dawg has more.

How to make matters worse

Memo to Norman Spector: A scheme to eliminate any cost to government legislation as the result of prorogation is better classified as "disastrous" rather than "ingenious".

Yes, it's a problem that work done on government bills has been killed by Stephen Harper's decision to shut down Parliament. But the answer isn't to ensure that the only direct consequence of prorogation is to allow the government to hide from confidence votes and opposition questioning, as would be the case if a rule is put in place to "save legislation" while allowing the unfettered abuse of the PM's prorogation power to shut down all ongoing Parliamentary proceedings.

On obstructed access

The Globe and Mail's report on the Cons' pattern of refusing to respond to access to information requests - this time dealing with requests related to earlier delays which took up to two and a half years to answer. But there's another part of the story which fits entirely with the Cons' efforts to make Parliament subservient to the executive branch:

Justice Minister Rob Nicholson's office said in an e-mail this week that proposed reforms to the Access to Information Act that were tabled in Parliament in 2006 have yet to be considered by the Commons Standing Committee on Access to Information, Privacy and Ethics. "This work [of the committee] is essential before the government can proceed further," the e-mail stated.

In fact, opposition members of the committee said they did not learn of the proposals until this fall. The committee had conducted its own study of the law and had come up with 12 "quick fixes," said chairman Paul Szabo, a Liberal MP.

Mr. Nicholson dismissed that report and urged the committee members to study the draft of the government's proposals, Mr. Szabo said. "I had never seen it. The clerk had never seen it," Mr. Szabo said of the document containing proposals from the government. "No members on the committee could ever recall seeing any document like that or being aware of any document like that."

The committee requested a copy of the draft. It was received in November, not long before Parliament rose for the Christmas break.

Now, it seems most likely that Nicholson's reference to the earlier draft is simply another example of the Cons' shotgun approach to excuse-making, and will be discarded within a day in favour of an assertion that the opposition wants to allow the Taliban access to vital regulatory correspondence to use against Canadian troops. But let's take a look at what's wrong with Nicholson's assertion if taken at face value.

To start with, the committee itself includes five Cons among its eleven members, with its report listing vice-chair Russ Hiebert, along with Pierre Poilievre (who as parliamentary secretary to the PM would presumably have a direct channel to any government response to the committee's work), Kelly Block, Bob Dechert and Earl Dreeshen. And based on the fact that the Con members signed on to the committee's report, there doesn't seem to be much room for doubt that they sent the message that the committee's work was valid at the time.

In that case, there would be two alternatives to explain the fact that the committee members signed on to a report of the type which the executive had no intention of responding to. Either the Cons' braintrust failed to let even their own committee members know that a response to the earlier report was a precondition to work in an area which the Cons claim as an important campaign promise - or somebody decided to deliberately withhold the report while planning to claim it as the necessary starting point for discussion, presumably to set up exactly the excuse Nicholson is now claiming.

But it wasn't only the committee members who had an opportunity to point to the 2006 report if they thought it was such a vital part of the committee's work. Just take a look at the list of people who testified before the committee:

The Committee concluded its hearings with the appearance of the Minister of Justice, the Honourable Rob Nicholson, followed by representatives of the Canadian Bar Association (CBA), David Fraser, Priscilla Platt and Gaylene Schellenberg.

And when Nicholson testified before the committee, he merely "encouraged" the committee to study the discussion paper (which again apparently hadn't been made available to the committee members at the time) while spending the bulk of his time presenting his position on the other reports being considered by the committee. And he in fact explicitly stated that he was interested to see the committee's work based on Robert Marleau's report which he now claims to be useless:

(Y)ou have the recommendations of Mr. Marleau, the present commissioner. I would be very pleased to hear your comments and those of your fellow committee members. I would be pleased to hear what you have to say. Again, any time you're prepared to come forward with a report addressing the different recommendations he has made, I would certainly be pleased to hear from you.
...
Again, I would like to have your comments on the recommendations of Monsieur Marleau. You have them before you, and I would be very pleased to have this committee.... With respect to Mr. Reid's comments, you've seen that the government has already tabled legislation under the Federal Accountability Act. You know how difficult that was to get through the previous minority Parliament. I tell you, I was very proud the day we got that through, because it was a huge step forward for transparency and accountability.

Again, I put it to you, Monsieur Nadeau. Let's have a look at these recommendations.

In effect, then, Nicholson's new position is best seen as a form of legislative Calvinball. Having previously said he was eager to see what the committee had to say about Robert Marleau's recommendations, he's now claiming that the committee has to start again from square one by offering its response to a report which apparently gathered dust on a shelf for three years rather than being provided to the committee or anybody else. (Which in turn will presumably be met by a declaration that the committee shouldn't have wasted its time on such an outdated report.)

Of course, it's also worth pointing out that the committee is rather hamstrung in its ability to get down to the work now demanded by Nicholson as long as Stephen Harper keeps Parliament from sitting. Which is a point which Nicholson would want to raise with his boss if he had the slightest interest in actually getting work done to improve Canada's access to information system.

But I wouldn't expect that anytime soon. After all, in the meantime the Cons continue to be able to stonewall access requests due to a weak legislative scheme...and that's an outcome which doesn't trouble Nicholson in the slightest.

Again, the key point to take away from Nicholson's position is that he sees himself as entitled to tell a Parliamentary committee retroactively what reports it can and can't consider in developing recommendations - and to stymie any progress on one of his government's core campaign promises as long as he can point to some piece of Con paperwork that wasn't included. And the proper response from the committee will be to affirm the work it's already done and work toward getting it passed in Parliament - whether or not Nicholson is standing in the way.

Update/Edit: As anonymous notes in comments, the committee's composition has changed since the report was issued; the text above has been rewritten to take that into account.