Monday Afternoon Links

Assorted content to start your week.

- Jonathan Watts reports on new research showing that even existing worst-case scenarios may underestimate the severity of the climate crisis. Anna Kanduth and Justin Leroux write about the need to start developing policy based on carbon stocks or budgets, rather than single-year flows which push action out into the future. Mitchell Beer interviews Seth Klein about the strong public support for a transition to a clean economy, even as politicians drag their heels. And Jessica Corbett writes that strong climate policy is even more popular when it's linked to improved social justice and decreased inequality.

- Rod Nickel and Jeff Lewis report on tar sands operators who are using the pandemic as excuse to stop funding emission reductions, ensuring that they continue spewing carbon pollution.

- Kelly Grant, Les Perreaux and Caroline Alphonso examine the effect of physical distancing on children, while Dakshana Bascaramurty points out how unequal access to recreation has made the pandemic far more traumatic for children already facing structural disadvantages. And Nicholas Kristof examines how countries led by women are doing far better in combating COVID-19. 

- Kyle Wiggers takes note of research showing systematic racial biases in the pricing of Uber, Lyft and other ride-share apps. And Michaelle Jean writes about the racism which imposes burdens on Black Canadians.

- Teresa Wright reports on the growing pressure on Justin Trudeau to finally keep his promise to revoke the discriminatory ban on blood donations by gay and bisexual men.

- Finally, Campbell Clark questions how the RCMP had the gall to claim that a videotaped, violent assault on Chief Allan Adam should be swept under the rug.

Tuesday Morning Links

This and that for your Tuesday reading.

- Dr. Dawg highlights Peter Russell's take on the Cons' 2008 efforts to prevent a Parliamentary majority from actually exercising its right to vote down a government which had lost the confidence of the House of Commons. And Steven Chase follows up by noting the role that the Cons' smear machine may have played in subverting Canadian democracy.

- Meanwhile, Bruce Cox discusses how a longstanding democratic crisis has led us to the verge of environmental disaster. And as Scott points out, there's plenty of room for matters to get worse when our federal government is actively looking for ways to encourage and facilitate pollution - to which I'll add that the Cons' deliberate steps to avoid telling the truth about hazardous substances aren't hugely promising either.

- Nobel laureate Paul Krugman's blog and columns are among my must-reads - so I often presume that readers will be familiar with his take on economics. But for anybody looking for a handy starting point on Krugman's recent work, Heather Mallick provides it while reviewing End This Depression Now.

- Finally, Erin agrees with the take that we shouldn't let anybody siphon resource wealth out of Saskatchewan - but points out that it's the Saskatchewan Party's low-royalty, multi-loophole system that's actually draining money out of our province.

On alternative avenues

I don't remember hearing this particular theory from Peter Russell (cited in Lawrence Martin's Harperland at p. 158) before Stephen Harper pulled the plug on Parliament to precipitate the 2008 federal election. But it seems to be worth noting in light of the possibility of the Cons breaking their fixed election date law once again:

A heap of criticism was visited upon the PM (for calling the election), especially from those who knew the details of the legislation. Others, however, concluded that because his was a minority government, the fixed-election law couldn't really apply. Some constitutional experts believed the governor general could have refused to grant Harper the election call. That would have been especially true, observed Peter Russell of the University of Toronto, if the opposition parties had been prepared to offer a coalition alternative. They weren't, however, and so Michaelle Jean acquiesced to the PM's wishes.

On confirmation

I've always been sympathetic to the argument that Michaelle Jean could justify keeping fairly quiet about the 2008 coalition showdown on the basis that it's the job of the politicians involved rather than the GG to argue the constitutional points in public.

But it's certainly a plus to see David Johnston explicitly confirming that he doesn't buy the Cons' attacks on the concept of a coalition government. And hopefully we'll find out before long how his acceptance of multi-party cooperation plays out in practice.

Thursday Morning Links

This and that to start your day...

- The Globe and Mail editorial board isn't about to let the Cons' continued census nonsense pass without criticism:

Most Canadians are simply not disturbed by the questions they are asked on the mandatory long-form census. There is no groundswell of opposition. There is not even a ripple. According to nearly everyone who has expressed an informed opinion, including two former chief statisticians at Statistics Canada, the voluntary replacement will be less accurate and hence less useful. It also costs more.

There is less shame in admitting that a new policy was poorly conceived than in defending a nonsensical position with inflated claims, to the bitter end.

- Haroon Siddiqui weighs in on how Michaelle Jean should have handled Stephen Harper's threats against her and the country at large:

(T)he GG, who’s supposed to be above politics, fell for Harper’s politics of bullying. She blinked — and set a bad precedent.

We have since learned that should Jean have denied Harper’s request, he would have gone over her head to the Queen or attacked Jean and the legitimacy of her office.

If so, that would have been just fine, exposing him as too power hungry to respect parliamentary traditions, and he would’ve had to face the music from Canadians.

What transpired on Dec. 4, 2008, was bad enough. In trying to whitewash her role in it, Jean belittles the highest office in the land.

The job of the GG is far more than cutting ribbons and eating seal heart. It is to encourage, advise and warn the prime minister that the constitutional buck stops at Rideau Hall, not 24 Sussex Dr.

- David Akin points out the one real precondition to an effective access to information system:

The changes we need are simple: We need a commitment from current and future governments that they will honour not only the letter of ATI laws but also the spirit. This means, among other things, providing ATI offices within each government department the appropriate financial resources to do their jobs.

Access to information and privacy analysts — the fancy name for the censors who black out parts of records we’re not allowed to see — complain of job stress, while their supervisors complain of high staff turnover and difficulty finding and training enough analysts.

So find the money already. Hire some people. Obey the law.

- Finally, James Travers is far too willing to play into the false dichotomy between the Cons and Libs. But he's absolutely right about the effect of the billions the Cons have thrown into their assortment of ideological crusades and photo ops:

Conservatives have a problem dismissing promised Liberal help for the sick and seniors as just more tax and spend waste. Canadians can now answer the question “what is a billion?” It’s the price of summer summits more memorable for runaway costs and riots than lasting achievements.
...
After years of widely-supported investment in a hollowed-out military, Conservatives are now struggling to explain the largest arms purchase in our history. Among Harper’s challenges is explaining how such a sophisticated stealth fighter as the F-35 meets Canada’s varied and often simpler needs, why a $16 billion contract wasn’t open to competitive bidding and what can be done to control costs soaring so fast that other NATO purchasers are getting cold feet.

Then there’s the price tag attached to tossing more Canadians in prison and keeping them there longer. At a time when crime rates are falling, Conservatives plan to spend a fortune — Kevin Page, Parliament’s stellar budget officer, projects new costs at over $5 billion — to jail, among others, Stockwell Day’s slippery perpetrators of unreported crime.
...
Meaningful choice has largely been missing from recent fights for federal supremacy. What’s changed is that Liberals are finally offering alternatives and Canadians now know what a billion is and how effortlessly it can be spent on next to nothing.

The battle ahead

As promised, let's look in a bit more detail at how dangerous the Cons' combination of motivations surrounding the 2008 coalition actually is - and why we'll need to do everything possible to make sure the next (seemingly inevitable) showdown turns out differently.

At the outset, it's worth remembering that the Cons have quite intentionally developed the habit of idolizing their leader. And while the main purpose of that strategy is surely to foster unity within the party, it would seem virtually inevitable that the cult atmosphere would have some effect on Stephen Harper's own view of himself.

That apparently led to Harper being momentarily shattered when he discovered that his actions had consequences, and that he couldn't simply impose his will on the country. But it didn't take long for Harper to summon up his most self-aggrandizing view yet, believing himself to be Canada's saviour against the caricature of a coalition that his party was already starting to paint:

But Mr. Harper’s mood and the government’s fortunes were transformed when Mr. Dion and NDP Leader Jack Layton invited Bloc Leader Gilles Duceppe to attend the press conference and sign the document cementing the coalition. Galvanized, the Prime Minister vowed to do everything within his power to prevent what he called the Liberals coalition “with socialists and separatists” from forming the government.

Now, the belief of a controlling leader that a country requires saving at all costs from enemies within would be scary enough to begin with. And indeed one can argue that it's exactly that type of "only we can save Canada!" attitude that led to the Libs' downfall, as the consequences of their willingness to throw money at saving the country from separatists became much of the impetus for their removal from power.

But Harper also adds an extra element to the mix. While the Libs' sins were borne of a desire to stay in control of the country largely as it stands and a willingness to direct public dollars into their own hands to do so, they can't be said to have been willing to do deliberate harm along the way.

In contrast, Harper and his party wasted no time in threatening the country with ruin at their own hands if Michaelle Jean didn't give them the reprieve from democracy that they needed to stay in power. And unfortunately, the fact that attitude has been rewarded seems to have given them little reason to rethink their position.

So as matters stand, we're stuck with a Prime Minister who's spent five years being assured of his own infallibility, who's come to believe that only he stands in the way of untold horrors - and who's willing to destroy the country in order to save it.

Of course, it still remains to be seen exactly how far Harper intends to push matters in order to cling to power. But while I'm still optimistic that the general public won't be convinced by his fearmongering and will give some combination of opposition parties the chance to replace him following the next election, there's little reason to expect anything but a desperate fight at that point. And the more Harper manages to work himself and his party into a fury, the more dangerous the results figure to be for the country.

Why it matters

Following up on my earlier posts commenting on Michaelle Jean's decision-making process in granting Stephen Harper the opportunity to avoid democratic accountability for his government's actions, let's note briefly why the issue still matters now.

For one, the effect of Jean's decision was primarily only to kick the can down the road. In granting prorogation, she only delayed any confrontation between a Prime Minister bent on keeping power and the combined force of a majority planning to vote him down - and the Libs' subsequent decision to keep the Cons in power hasn't changed the issues at play. And indeed, many of the developments since then - from the Cons' blatant executive power grabs to the popular outcry over prorogation in 2009 - can be traced directly to the same underlying conflict.

That might only leave the general debate to be dealt with at some undefined point in the future...if not for the fact that the Cons see their destructive mood of December 2008 as establishing exactly the political environment that's most beneficial for their electoral prospects.

By now, it should be clear that Harper and company are doing everything in their power to try to recreate that exact dynamic. And anybody wanting to stop Harper in that effort will need to recognize exactly what happened and why in 2008, as well as how best to counter it.

Now, the Cons' strategy has plenty of dangerous implications that I'll deal with in a future post. But for now, suffice it to say that anybody who thinks it's safe to relegate the events of December 2008 to the distant past is missing the boat - and we'll need all hands on deck to get Canada moving in the right direction.

Canada held hostage

While I don't share the concern others have with Peter Russell's revelation that Michaelle Jean decided to grant Stephen Harper's 2008 prorogation request only after securing key promises from Harper, today's news about some of the other considerations taken into account looks to be downright scary:

In fact, though, Jean did believe there was a Plan B and that it did involve going over the head of the governor general — not to the Queen, but to the Canadian people, as loyal Harper cabinet minister John Baird had warned in a CBC-TV interview. Plan B, Jean and her constitutional advisers believed, would involve a direct, public-relations assault on the legitimacy of the governor general and her decision. That, and not an appeal to the Queen, was far more concerning to Jean on Dec. 4, 2008.

Peter Russell, the distinguished constitutional scholar at the University of Toronto, was one of the experts summoned to Rideau Hall that day and one of the rare ones to say publicly that he was there.

In the back of his cab, coming from the airport to Rideau Hall, Russell only needed to look out the window to see Plan B in action. Demonstrators, holding signs denouncing the coalition, had amassed outside Jean's residence while she was meeting with Harper.

“You can imagine how that would have escalated,” Russell said in an interview this week. “It would have embroiled the country in a constitutional crisis” — one that would have tested Canadians' faith in the entire system of government, including the institution of governor general. The Conservatives' use of the term “coup d'état” was especially worrying, Russell said.

Russell said this wasn't the only consideration in Jean's decision to grant Harper's request, but it was an important part of the context — one that hasn't been discussed publicly so far in the wake of the prorogation.

Now, it would be problematic enough if the small number of paid Con staffers who showed up to "protest" at the GG's residence were able to exert any meaningful influence on a determination as to whether or not Canada's elected representatives would be permitted to carry out a confidence vote. But from Russell's current take, it sounds like the fears went far beyond that, with Jean making her decision in order to avoid an assault on her own position as well as the Cons' promises of chaos if they didn't get their way.

Which might be defensible if the fears were based on any outcry actually originating in the general public, rather than the Cons' strategy of whipping up as much of a frenzy as possible. But as events played out, a party which lied to Canadians about the nature of their democratic system and threatened to make the country unliveable if it faced a democratic vote in the House of Commons was ultimately rewarded for its willingness to tear Canada apart. And it's hard to see how the temporary conflict avoidance achieved by Harper's prorogation - whether framed in terms of the role of the GG alone or the wider threat of party-based protest - is worth the long-term cost of a precedent that a governing party which lacks legitimacy can cling to power by threatening to torch the country.

On conditional reprieves

It's a definite plus to see both the advice Peter Russell gave to Michaelle Jean during the Con-fabricated 2008 constitutional crisis, and the fact that Jean was able to secure at least a couple of concessions from Stephen Harper - including a commitment to reconvene Parliament quickly rather than ruling by fiat while shuttering the House of Commons indefinitely:

(Peter) Russell said Harper made at least two important commitments: that Parliament would return soon, and that his government would then produce a budget that could pass.
...
Russell, a professor emeritus of political science at the University of Toronto, said the prime minister's promises had a large influence on Jean, and he cautioned Canadians against seeing her decision to grant Harper's request for prorogation as a rubber stamp.

"I think they were extremely important in her weighing all the factors on both sides of the question," Russell said.

"For instance, if Mr. Harper had made no pledge to meet Parliament early, if he said well, he thought his financial position, which had been so badly received in the House, was terrific and he wasn't going to make any changes, I think she would have probably had to make the decision the other way."
...
Russell's revelation suggests the meeting that day was a negotiation in which the Governor General wielded considerable power.

"She made it clear these reserve powers of the Governor General may sometimes be used in ways that are contrary to the advice of an incumbent prime minister," Russell said.

"Because if the contrary was the case, any PM could, at any time, for any reason, not only dissolve Parliament, but prorogue it for any length of time for any reason. We wouldn't have parliamentary government. We would have prime ministerial government."

But I have to wonder whether Russell's revelation sheds some light on the events of the following winter as well. Might Harper's late-2009 request for prorogation by phone then have served not only to create a precedent in favour of the prime ministerial government which Harper is so eager to impose, but also as a form of personal payback for Jean's earlier message that she wouldn't give total deference to the PM's anti-democratic whims?

Yessiree, that sounds plausible

Shorter PMO spin on today's sort-of-news that Stephen Harper was prepared to call in the Queen or anybody else he thought could keep him in power when faced with imminent defeat in the House of Commons:

We masters of seven-dimensional ultrachess don't need no stinkin' plan B.

On delay and distraction

Not to pick on Susan Delacourt too much in the wake of yesterday's post. But she goes astray again in not only drawing the questionable analogy between Peter Milliken's function as speaker and Michaelle Jean's as Governor General, but now suggesting that it's somehow a "compromise" to drag the Supreme Court of Canada into the mix as well:

Governor General Michaëlle Jean granted Harper a request to prorogue Parliament, but reportedly made clear, in a two-hour discussion with the Prime Minister, that the government was being granted the stay of execution on condition that it co-operate better with the majority opposition in the Commons.

Now, a little more than a year later, Harper’s refusal to co-operate with this parliamentary order could be viewed as defiance of the governor general’s instructions. In that case, if this dispute lands in front of Jean again, she may have no choice but to dissolve Parliament, recognizing that it has become dysfunctional.

The Supreme Court, however, could represent a compromise of sorts. If Milliken sides with the argument that Parliament prevails over government, the Justice Department may well draft a formal reference to the Supreme Court – in the form of a constitutional, not a political question – about which laws have precedence in the case of a dispute.

In other words, rather than going to the governor general, and almost certainly an election, the problem would head to the Supreme Court, where everyone could buy some time.

Now, the most basic problem is that "buying time" isn't a compromise position at all. When the dispute revolves around the government using every delay tactic at its disposal to avoid allowing the opposition to do its job even in the wake of an explicit order of the House of Commons, anything that merely pushes matters back even further is a full win for the Cons and a loss for Canada.

Leaving that aside, though, I'm at a loss to figure out the supposed relevance of Jean's rumoured conversation with Harper during the coalition showdown. It would seem obvious enough that whatever Jean may have said during their December 2008 meeting falls short of setting any binding obligations on Harper. (Though if she thought the conversation important, one would think Delacourt would be particularly suspicious about the delay involved given that Jean likely wouldn't be in the GG position by the time the Supreme Court reached any decision.)

But more importantly, the only way a "dispute would land in front of Jean" again would be if Harper demanded either prorogation or dissolution - the former of which she's apparently decided to allow as a matter of course, the latter of which would put an election squarely on Harper's shoulders rather than Jean's. So ultimately, Delacourt's effort to shift responsibility to Jean and/or the Supreme Court serves only to distract from where it properly belongs.

All of which is to say that Delacourt seems to be trying to be too cute by half at every turn in seeking compromises where none exist. We've long since reached the point where conflict avoidance means allowing a secretive government to abuse its power by preventing either elected representatives or responsible tribunals from holding it to account. And it does nobody but the Cons any good to portray their position of "give Harper what he wants or the country gets it" as justifying an effort to meet halfway.

On Parliamentary knowledge

For all the accolades Susan Delacourt is receiving for her latest, I'd argue that her view that the current detainee document issue resembles the coalition showdown is completely off base - or at the very least that despite the common theme of the Harper Cons flouting whatever power they can get their hands on, the roles are actually reversed.

Of course, we don't know exactly how or why Michaelle Jean decided what she did. But all indications are that she saw her role as the delegate exercising the Crown's authority to mean generally taking the instructions of the Prime Minister, with no room for input from the opposition parties or anybody else aside from her own chosen advisers due to the limits of "constitutional knowledge".

If there's any analogy to be drawn, it's that Peter Milliken derives his authority entirely from the House of Commons, and is responsible for administrating the will of the House alone. And accordingly, any decision should be based primarily on the order passed by Parliament - with any representations from both sides serving only to assist in interpreting and applying it, rather than influencing the outcome based on political considerations.

Update: EFL reminds us of the historical context as to the Speaker's role.

The rewrite continues

Another day, another couple of stories which conspicuously rewrite history to pretend that pro-coalition grassroots efforts in 2008 didn't happen. And in both cases, there are points worth some serious followup.

First, there's Susan Delacourt's latest:

(I)t can be argued that last year's protest was more effective -- so far, anyway -- because it had an influence on the Governor-General. It was partly out of deference to widespread anger that she decided to grant the prorogation last year to Harper, we've heard. Right now, it's not clear what this Facebook group can accomplish -- the Jan. 23 rallies will be an important measure, but where will that influence have an effect?

Now, I'd take the above passage with a mine's worth of salt. Assuming that the Governor-General herself has kept the confidences of the PM, the only possible source for information about the basis for Jean's decision is the Harper PMO - which obviously has a massive stake in both ignoring the pro-coalition side in 2008, and talking down the possible impact of the prorogation protest now.

That said, if Jean's decision was in fact based in the slightest on favouring one of two competing sides in an active public opinion battle rather than the constitutional convention of accepting the advice of the PM, then that might well be the most disastrous precedent of all coming out of Harper's prorogation tactics. And any Cons who think they have reason to be smug about the outcome might want to consider what it would mean if opposition parties see both a need and a benefit in packing Canada's streets with protestors in order to influence the GG's decisions.

Secondly, there's James Wood's excuse for Brad Wall's refusal to comment on the prorogation crisis despite the fact that he's nominally the minister responsible for intergovernmental relations:

When reporters asked for the intergovernmental minister this week to comment on Prime Minister Stephen Harper's decision to prorogue parliament, it was clear the Saskatchewan Party government wasn't too anxious to have Wall wade into that nest of thorns (especially with rumours flying that the PM was to attend the world junior hockey championship in Saskatoon on Tuesday -- and have a handshake meeting with the premier at the game. In the end, Canada's hockey-fan-in-chief didn't make it.)

The Sask. Party government has had its ups and downs with the federal Conservative government, but has generally been among its closest provincial allies. The prorogation issue, however, has fired passions on both sides and there appeared to be little interest in having Wall stoke them further.

Again, it's downright bizarre that Wood would consider the current prorogation as having "fired passions on both sides" when hardly anybody has bothered to take Harper's side - and the few voices trying to carry the Cons' water have tried to make the case that "it's not a big deal" rather than offering passionate support for Harper.

But the line is particularly out of place when Wall chose to wade directly into the 2008 confrontation when there actually were large movements on both sides. And particularly with Con member Don Morgan providing a tepid defence of Harper rather than even recognizing for a second that Saskatchewan's voters might not be happy to have Parliament shut down, this looks to be another example of the Sask Party placing its allegiance to Harper above the interests of the province.

(Edit: fixed typo.)

By way of clarification

One of the current memes circulating around Canadian political punditry is the claim that the legitimacy of any coalition government following the next Canadian election would be dependent on what's been promised during the course of the campaign, such that Michaelle Jean should take into account leaders' statements from the campaign in determining whether to recognize a coalition government - and perhaps refuse to recognize a coalition agreement if anybody's promised not to enter into one. And it's time to call bullshit on that argument in the clearest of terms.

Whatever one's view about the basic ethics underlying the actions involved, the Governor-General hasn't treated the Cons' election promises as reason to refuse the exercise of what would otherwise be constitutional powers (such as, say, appointing senators or calling an election in advance of a fixed election date). And while ideally I'd like to see as many of the opposition parties as possible actually defend the idea of a coalition in principle so that the issue doesn't arise, there's absolutely no basis for applying a different standard to a coalition which might form following an election based on what's said during the course of the campaign.

This may get interesting

Well, that's one burning question answered, as Pamela Wallin is apparently claiming that appearing in Saskatchewan "monthly" is enough to qualify her as a resident entitled to be appointed to the Senate. But not surprisingly, that position seems to be coming under some serious fire. So let's take a look at the actual residency requirement, as well as how it figures to play out in Wallin's case.

The Constitution Act, 1867 includes the residency requirement for senators:

23. The Qualifications of a Senator shall be as follows:
...
(5) He shall be resident in the Province for which he is appointed:

As the article notes, there are numerous possible definitions of "resident". But whether one looks at spending the majority of one's time in a jurisdiction, spending the last 6 months there, or an "established habitation", it's awfully tough to see how Wallin can meet them regardless of how the Cons try to paper over a flawed appointment for the next month.

Which leads to the question: just who gets to decide whether or not the Con's senate appointments actually meet the constitutionally-required qualifications? There are two answers - and either figures to lead to some significant potential for dispute.

First, the initial appointment power is predicated on each senator being "qualified":

The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.

Presumably, Michaelle Jean will have at least some ability to question whether any particular appointment is "qualified". And if she decides otherwise, the Constitution doesn't apparently provide for any way for Harper to override her judgment.

Mind you, I'd once again tend toward the view that Jean is best off not confronting Harper over matters short of his entitlement to hold office in the absence of the confidence of the House of Commons. But that doesn't mean that Harper's appointees will be off the hook, as the Senate may decide for itself whether or not any of its members are qualified:

33 If any Question arises respecting the Qualification of a Senator or a Vacancy in the Senate the same shall be heard and determined by the Senate.

So presumably it'll be open to the Senate as a whole to look into just what residency requirements apply to Wallin (along with Duffy and perhaps more to come). And to the extent the issue gets dealt with in the near future, there simply won't have been time for either Wallin or Duffy to meet the residency requirement: indeed, the section quoted above is clear in requiring that a senator "be resident" and not merely be in the process of acquiring residence in the province represented.

Of course, it's far from certain how much appetite the existing Senate will have for such a confrontation. But then, there could surely be little better way for the Senate to project insularity, ineffectiveness and disregard for its governing rules than to refuse to deal with possibly-unconstitutional appointments - whether out of fear that the same standards might be applied to the current members in the future, or out of a desire to appease the person driving the unconstitutional appointments in the first place.

All of which suggests that the controversy generated by Harper's trip to the trough is far from over. And it remains to be seen just who will take the worst damage resulting from the fight that Harper has set in motion.

A logical conclusion

Joe Jordan raises (warning: PDF) an interesting point about the effect of Michaelle Jean's decision allowing prorogation as a means of avoiding a confidence vote:

(W)hat this decision has done is to pretty much guarantee that the Governor General will enshrine the practice of approaching the leader of the opposition following the loss of a confidence vote. The opposition parties are not really in a position to publicly declare their intentions prior to any vote, if prorogation is now a legitimate blocking tactic.

Now, there's plenty of room for doubt as to whether or not the process actually followed by Jean is the ideal one. Indeed, it's possible that Harper could seek prorogation yet again if the coalition is rightly prepared to keep up its plan once another confidence vote is set to take place - and given the desperation the Cons have shown in clinging to power, I for one wouldn't be surprised if that comes to pass.

But it does seem entirely logical that if the GG's powers have been interpreted to create a disincentive to any declaration of the non-incumbents' position in advance of a confidence vote, then some leeway has to be given to the opposition parties after the fact. And that reasoning, along with Harper's frantic grab for whatever he can get his hands on during his temporary reprieve from democracy, would seem to hint at the result if Harper tries to force another election rather than allowing the coalition to put a stable government in place.

Choosing one's battles

It's understandable that commentators may want to see checks on the power being illegitimately wielded by the Harper government after it ran and hid from an impending vote of non-confidence. And Norman Spector suggests that the first step should be for Michaelle Jean to reject Harper's impending delivery of 18 Con hacks to the Senate trough. But as much as Harper deserves to be blamed for forcing the choice on Jean, I have to be concerned that her following Spector's advice would only make matters worse on virtually all fronts.

As a matter of constitutional principle, I'm not sure how there would be any basis upon which Jean could decline the Senate appointments after accepting prorogation at Harper's advice. To the extent Jean's state of constitutional knowledge doesn't include the fact that the Cons were and are set to fall, there hasn't been anything in the meantime to change that state of affairs.

At most, it's possible that Jean may have set some conditions privately which Harper is now flouting publicly, which would result in some principled basis for denying the Senate appointments. But even then, Jean would have to determine which decision would be least likely to do harm to her office and to the country. And as much as I normally avoid "keeping the powder dry" types of analysis, this looks to be one of the rare situations where it's worth waiting for a more significant issue to come.

After all, the Cons have made it entirely clear that they were willing to stop at nothing to try to cling to power - including potentially trying to fire Jean before she could let democracy run its course.

Now, they're obviously in no position to slam her initial decision granting prorogation. (Though it's noteworthy how few Cons seem to have actually approved of her judgment rather than assumed that no other choice existed.)

But one has to assume that Harper already has an all-out public assault on the Governor-General ready to be rolled out at a moment's notice. And it would be nothing short of a gift to Harper to allow him to launch that attack on Jean over a series of appointments which, while hypocritical and illegitimate, ultimately don't figure to substantially affect how Canada is governed.

At worst, it wouldn't be at all surprising to see Harper replace Jean with a partisan Con over the Senate appointments as his government hinted at doing over prorogation. And even at best, Jean would face a concerted campaign to bow to Harper's will on the appointments, and would almost certainly wind up being pressured not to decide against Harper the next time a key decision fell into her jurisdiction.

Which is a serious problem, since the real battle is set to run at the end of January when the Cons face the confidence vote that they ducked this month.

At that time, the difference between a GG wounded by a Con negative advertising blitz (or replaced by Harper's choice of partisan foot soldiers) and one whose independent authority is largely intact may determine whether or not the toxic Harper regime remains in power following a vote of non-confidence. And the entrenchment of a few more Harper cronies at the public trough on the minority side of the Senate would prove a small price to pay to preserve the GG's independence - and hopefully move Canada's executive authority out of Harper's hands.

Just wondering...

A few of the bigger questions which arise out of today's prorogation mess...

Is there any formal order, or other way to know whether or not Michaelle Jean set any conditions on the prorogation? Would those instead be considered part of the confidential discussion between Harper and Jean?

Whether or not any conditions were public, what could Jean do to enforce them? Would she be able to refuse to allow Senate appointments or other executive acts to be formalized under a confidence vote takes place? If the conditions are private, would it be a breach of confidence to try to enforce them in the wake of (let's say) a public announcement of a prohibited appointment?

Finally, would Jean have given any direct indication (or indirect hints) to Harper as to what she intends to do at the end of the prorogation during their discussion? If so, can she possibly justify arming Harper alone with that knowledge, rather than at least allowing the other party leaders to hold an equal amount of information about her plans in the event of a non-confidence vote?

The right to be heard

So it's apparently official: the Cons have bought themselves a couple of months to try to bully, smear, bribe and fearmonger their way out of impending defeat in the House of Commons. While others have pointed out some of the substantive problems with the decision, I'll focus for now on the process followed by Michaelle Jean in making it.

Based on the length of the meeting with Harper, it seems glaringly clear that Jean didn't simply assume that she had to accept his advice without question. Instead, there presumably must have been some justifiable doubt in her mind as to whether or not Harper's request ought to be granted. And given that Harper seems to have acquired everything he asked for, there's every reason to think that his arguments had at least some effect on the outcome.

Which raises a massive red flag: particularly where an action is being questioned precisely based on a reasonable dispute as to whether or not the Prime Minister has lost the necessary legitimacy to make a request, how can the Governor-General hear only from the Prime Minister's side (bolstered by publicly-funded research from the Privy Council Office and Justice Department) before making a decision?

Now, this isn't to say that there's any likelihood of Jean's decision being successfully appealed to any court based on her failure to give the coalition a chance to make its case to deny (or set conditions on) prorogation. And indeed I'm not sure I'd want to see the courts dragged into what Harper has already turned into a constitutional quagmire.

Likewise, it doesn't mean that I'd want to see every action of the GG made subject to representations from all sides: so long as a government's confidence in the House of Commons isn't seriously in question, there wouldn't be any reason to change the usual rule that the GG takes her advice solely from the sitting prime minister.

But faced with a serious issue of whether or not Harper effectively had standing to make a request for prorogation, it seems awfully troubling that Jean seems to have not only deferred to Harper's opinion, but also concluded that nobody else should be allowed to make their case. And particularly if Harper himself decides to push the boundaries of executive power vis-a-vis the GG as he's already done in so many other areas, it's that combination - not just the precedent of prorogation itself - which may prove to be the most damaging result of all.

Early resolution

The operating assumption for now seems to be that Harper will be voted down and the progressive coalition will form the government next time the House of Commons gets to vote on a confidence matter - likely either next week if Michaelle Jean rejects a request for prorogation, or in January if for some obscure reason she chooses to grant it.

But based on the obvious fact that the opposition parties have agreed that the Cons have lost the confidence of the House of Commons, is there any reason why Jean would need to wait for the formality of a vote which Harper can delay? And with the dispute set to spill over into the streets over the weekend, isn't it possible that the least intrusive and most responsible course of action would be to install the coalition before the end of this week, rather than letting Con-fueled hysteria grow thanks to continued uncertainty?