On preemptive action

Others have rightly pointed out Norlaine Thomas' thread about the threat Stephen Harper and his acolytes pose to the Canadian Charter of Rights and Freedoms. But I'll take the opportunity to expand on the prospect of stopping that crusade in its tracks in Saskatchewan's provincial election (which, to be clear, is scheduled for October 26).

First, there's more than just an outside chance of a vote for change.

While the Saskatchewan Party has generally remained ahead in the polls (other than after the 2017 budget which resulted in Brad Wall fleeing the scene), this fall's election will feature new leaders on all sides, as well as a vote being conducted under unprecedented circumstances. And that's without going into the strengths of Ryan Meili and the NDP's team of candidates - who I'd argue offer the strongest prospect for change in the public interest seen in Saskatchewan in half a century.

Second, there's no reason for Canadians to be fatalistic about the outcome rather than taking an active role.

As I've mentioned before, Saskatchewan's lax electoral financing laws allow people (and corporations) outside the province to make donations. And so far, the result has mostly been a pipeline of corporate money helping the Saskatchewan Party to run attack ads.

But people who recognize that the provincial election has constitutional ramifications for the whole country can do something about it. 

Anybody preferring to contribute their time can volunteer to help in a campaign where phone and social media contact matter more than ever. And people able to pitch in financially can donate to the Saskatchewan NDP and its candidates - to make sure the election is decided based on what's best for people, rather than what serves the provincial interests of corporate contributors, and the destructive national plans of Harper and his heirs. 

On definitive statements

Following up on this post, I'll take a step back point out how Scott Moe's insistence on attacking any carbon price through the courts is only enshrining in Canadian jurisprudence - in both the majority and dissenting decisions - some of the points he's trying to soft-peddle for the climate denialists in his base.

Moe has just barely reached the point of being willing to acknowledge the existence of climate change in public in a sentence or two before trying to change the subject. But it's well worth pressing to see whether he'll admit facts were as uncontroverted in the Court of Appeal's decision (including though the best argument Moe could muster to claim climate change isn't a matter of national concern) as they are in the scientific community.

To start with, the basic facts of the global crisis were set out by the majority after being accepted by all parties - including Saskatchewan (italics in original, underlining added):

[15] The general character of the GHG phenomenon and the basic science of climate change are not contested by any of the participants in this Reference. In simplest terms, planet Earth absorbs energy from sunlight. When that energy is emitted, GHGs capture some of it. This slows the escape of such energy into space and, over time, heats the atmosphere and the surface of the earth. These higher temperatures disrupt global climate patterns.

[16] The broad contours of the impact of anthropogenic emissions of GHGs and of the nature of the climate change issue are summarized in Climate Change 2014 Synthesis Report Summary for Policymakers [Climate Change 2014]. It was prepared by the Intergovernmental Panel on Climate Change [IPCC], which was established by the United Nations Environmental Programme and the World Meteorological Organization. The IPCC, as described by John Moffet, Assistant Deputy Minister with Environment and Climate Change Canada, in his affidavit of October 25, 2018, is “the leading world body for assessing the most recent scientific, technical, and socio-economic information produced worldwide relevant to understanding climate change, its impacts and potential future risks, and possible response options”. Climate Change 2014 concludes as follows:

(a) “Human influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history. Recent climate changes have had widespread impacts on human and natural systems” (at 2).
(b) “Warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen” (at 2).
(c) “Anthropogenic greenhouse gas emissions have increased since the pre-industrial era, driven largely by economic and population growth, and are now higher than ever. This has led to atmospheric concentrations of carbon dioxide, methane and nitrous oxide that are unprecedented in at least the last 800,000 years. Their effects, together with those of other anthropogenic drivers, have been detected throughout the climate system and are extremely likely to have been the dominant cause of the observed warming since the mid-20th century” (emphasis in original, at 4).
(d) “Changes in many extreme weather and climate events have been observed since about 1950. Some of these changes have been linked to human influences, including a decrease in cold temperature extremes, an increase in warm temperature extremes, an increase in extreme high sea levels and an increase in the number of heavy precipitation events in a number of regions” (at 7).
(e) “Continued emission of greenhouse gases will cause further warming and long-lasting changes in all components of the climate system, increasing the likelihood of severe, pervasive and irreversible impacts for people and ecosystems. Limiting climate change would require substantial and sustained reductions in greenhouse gas emissions which, together with adaptation, can limit climate change risks” (at 8).
(f) “Surface temperature is projected to rise over the 21st century under all assessed emission scenarios. It is very likely that heat waves will occur more often and last longer, and that extreme precipitation events will become more intense and frequent in many regions. The ocean will continue to warm and acidify, and global mean sea level to rise” (emphasis in original, at 10).
(g) “Climate change will amplify existing risks and create new risks for natural and human systems. Risks are unevenly distributed and are generally greater for disadvantaged people and communities in countries at all levels of development” (at 13).
(h) “Without additional mitigation efforts beyond those in place today, and even with adaptation, warming by the end of the 21st century will lead to high to very high risk of severe, widespread and irreversible impacts globally (high confidence). ...” (emphasis in original, at 17).

None of these conclusions were challenged or put in issue by the participants in this Reference.

And due to the position pushed by Moe, the majority decision also recognized the essential nature of both carbon pricing and multijurisdictional action in order to mount an effective response:

[147] What then of the idea of minimum national standards of price stringency for GHG emissions? Significantly, the factual record before the Court indicates that GHG pricing is not just part and parcel of an effective response to climate change. It indicates that GHG pricing is regarded as an essential aspect or element of the global effort to limit GHG emissions. The following unchallenged features of the record are noteworthy in this regard:

(a) “There is widespread international consensus that carbon pricing is a necessary measure, though not a sufficient measure, to achieve the global reductions in GHG emissions necessary to meet the Paris Agreement targets” (Moffet affidavit at para 46).
(b) “A well-designed carbon price is an indispensable part of a strategy for reducing emissions in an efficient way” (High-Level Commission on Carbon Prices, Report of the High-Level Commission on Carbon Prices (Washington, DC: World Bank, 2017) at 1).
(c) “There is a widespread trend in favour of carbon pricing … Overall, 67 jurisdictions … are putting a price on carbon” (Moffet affidavit at para 49).
(d) “The existing literature is highly convergent in finding that carbon prices that have been implemented around the world have been successful in reducing greenhouse gas emissions” (Nicholas Rivers affidavit affirmed October 5, 2018, at para 6(b)).

...
[156] All of this said, a good deal of the real significance of individual provincial failures to price GHG emissions to a minimum level plays out on a different plane. Climate change is a global problem and, accordingly, it calls for a global response. Such a response can only be effectively developed internationally by way of state-to-state negotiation and agreement. This, of course, is the story of the Framework Convention, the Kyoto Protocol, the Copenhagen Accord, and the Paris Agreement. In participating in these international processes, Canada is expected to make national commitments with respect to GHG reduction or mitigation targets. Those commitments are self-evidently difficult for Canada, as a country, to meet if not all provincial jurisdictions are prepared to implement GHG emissions pricing regimes – regimes that, on the basis of the record before the Court, are an essential aspect of successful GHG mitigation plans. This is not to suggest Parliament must somehow enjoy a comprehensive treaty implementation power in relation to the GHG issue. But, it is to say that the international nature of the climate change problem necessarily colours and informs an assessment of the effects of a provincial failure to deal with GHG pricing.

What's more, even the dissent which was supposed to have justified the waste of resources in challenging a backstop carbon price includes some of the definitive acknowledgment of the importance of climate change that's glaringly lacking in Moe's public statements and official actions:

[236] GHGs are gases that absorb and re-emit infrared radiation, the most prevalent of which is carbon dioxide [CO2]. GHGs are a significant contributor to climate change. For this reason, the parties and intervenors all agree that the governments of Canada and the Provinces must take steps to mitigate the anthropogenic emission of GHGs. Because none of the Attorneys General dispute the causative effect anthropogenic GHGs have on climate change or the attendant and existential necessity of mitigating anthropogenic GHG emissions, the proof or truth of these facts is not at issue. That is, they are proven and true.
...
[476] Before summarising our opinion, we would reiterate two points. First, we agree that all levels of government in Canada must take action to address climate change. The anthropogenic emission of GHGs is an issue of pressing concern to all Canadians and to the world. Second, Parliament has a number of constitutional powers, legislative means and administrative mechanisms at its disposal to achieve its objectives in this regard.

Needless to say, I'll be shocked if Moe is willing to publicly acknowledge the existential threat of climate change which he didn't even bother to dispute before the Court of Appeal. Instead, I'd fully expect him to keep pairing gross understatements of the threat of climate breakdown with disingenouous attempts to distract his audiences.

But if that's true, then Moe's loss in court has not only entrenched the federal carbon price, but enshrined in Canadian jurisprudence some of the truths about our climate crisis which he continues to deny. And Moe himself should only lose credibility for refusing to admit and act on the reality of climate change.

Friday Morning Links

Assorted content to end your week.

- Murray Dobbin recognizes that there's more at stake on the federal political scene than merely replacing the Harper Cons - and that the most important debate may be found within the NDP. Meanwhile, Tim Harper is concern trolling on that front, demanding that Thomas Mulcair silence Linda McQuaig and anybody else whose principles might not align perfectly with Fraser Institute talking points.

- Carol Goar makes the case (as I've done before) to deal with the Senate through a new convention which simply avoids future appointments. But Andrew Coyne proposes a far more difficult path, proposing to deal with constitutional amendment procedures rather than the single illegitimate institution which cries out for action. And Don Lenihan uses that opening to argue for inaction on all fronts.

- Glen Pearson questions the corporatist orthodoxy that the rich must be appeased with preferential access and policy treatment lest they stop creating wealth for themselves. But Tony Clement makes it abundantly clear that his government isn't interested in anything but all-out war against Canadian workers.

- Finally, Jim Stanford calls for another look at the relative merits of infrastructure investment and corporate tax cuts:

Because corporations are taking in so much more than they are spending, liquid cash assets in the non-financial corporate sector continue to swell, and now total almost $600 billion.  Many blue-chip companies, literally holding more money than they know what to do with, are finding ways to distribute excess cash to their owners — either through share buy-backs (like the Royal Bank and CN Rail) or boosting dividends (like Enbridge, Brookfield, and Fortis).  While this may reduce the amount of cash sitting idly in corporate coffers, it will have no direct impact on real business investment, which is what the economy really needs.

The stagnation of business capital spending is a huge disappointment to the advocates of the dramatic reduction in corporate income taxes which has been a central feature of Canada’s fiscal policy in recent years.  Since 2007 the Harper government has cut the federal CIT rate from 22.1% (including a former surtax) to 15% today: that’s a decline of 7.1 points, or about one-third.  Many provinces also cut their rates, bringing the combined federal-provincial average rate down to around 26% today — among the lower rates of industrialized countries, and far lower than America’s 35% federal statutory rate (closer to 40% when we include state CITs).  The federal CIT cut has reduced federal revenues by about $13 billion per year.

The argument has been that tax cuts would elicit more business investment spending.  In 2006, the year before the Harper CIT tax cuts were announced, non-residential business investment equaled 10.5% of GDP.  In the first half of 2013, with corporate taxes reduced by one-third, non-residential business investment has equaled 10.7%  of GDP.  That apparent increment of 0.2% of GDP represents $4.6 billion in “extra” capital spending.  Motivated from a $13 billion tax cut.  In other words, the government had to spend almost $3, for each $1 in new business spending.  (Of course, there are many other factors influencing investment that vary from one year to another, so it’s hard to isolate the impact of the tax cut.)  So far in 2013, business investment has actually declined, making a bad situation worse.

Three times as much investment would have been motivated if the government simply spent the $13 billion directly on new public infrastructure (something we badly need, and that would boost private sector productivity.  And here’s the biggest irony of all: econometric evidence suggests that the biggest influence on business investment is the pace of economic growth (since businesses won’t invest, if they are worried final demand for their products will be unable to ratify the capacity added through their investment).  Growth generates investment (and hence more growth) via multiplier and accelerator effects that are stronger, based on econometric evidence, than any positive effect of lower taxes on business investment.

The road to abolition

Ian Peach's guest post at Pundits' Guide is well worth a read in setting out a feasible path to Senate abolition. But I'll note that the exact wording of an abolition resolution would need to be somewhat more complex than that proposed by Peach - while the political push might also take a slightly different shape than he seems to be counting on.

Peach's proposal for an abolition resolution - which, as he rightly notes, could originate with a province rather than the federal government - is as follows:

The resolution would be simple: that sections 26 through 31 of the Constitution Act, 1867 be repealed.

Now, I won't claim to be a constitutional scholar on Peach's level. But I'm not sure how the repeal of those provisions governing the appointment, tenure and disqualification of Senators would serve to effectively abolish the institution, particularly when it would leave intact:

- section 17, which defines the Parliament of Canada to include an upper house styled the Senate;
- sections 21-22, defining the number and geographic distribution of Senators;
- section 23, setting the qualifications for Senators;
- sections 24 and 32, providing for the appointment of Senators by summons; and
- section 35, setting a quorum requirement for the conduct of Senate business.

While the elimination of constitutional protection for tenure might provide more avenues to remove Senators from office, it wouldn't provide a clear answer as to what comes next. And it would seem to me to be at least open to future federal governments to keep making use of the power to summon Senators even if Peach's proposed resolution passed.

Again, that observation doesn't affect the possibility that an abolition resolution could originate with a province. But it does signal the need for a resolution originating with a province to fully excise the Senate (and the Senate alone) from Canada's current constitution.

As for the political side of abolition, Peach seems hopeful that pressure from the provincial NDP will turn the tide in provinces with current or potential minority governments. And it's possible that the NDP could make Senate abolition into part of its demands for support of any minority government.

But I'm not sure that provincial NDP wings will see much benefit in doing so unless public demand for abolition is so high that the provincial government would feel significant pressure to go along in any event. Which means that rather than hoping for NDP demands in minority governments in Ontario and New Brunswick as a necessary element of an abolition strategy, the more plausible path looks to involve the strength of the federal party's Roll Up the Red Carpet campaign in placing pressure on provincial governments to either support abolition, or be seen as parties to a continued stream of scandals and abuses.

Update: In comments at his guest post, Peach notes that his proposed resolution should in fact repeal sections 21 to 36 of the Constitution Act, 1867 - addressing most of my concerns above. But I'd still see it as important to include consequential amendments to section 17 (and other sections featuring mention of Senate authority) lest a future government take any remaining references to the Senate as an invitation to keep a second chamber running.

Wednesday Morning Links

Miscellaneous material for your mid-week reading.

- Bill Curry reports on what looks like a thoroughly warped view of the role of the Minister of Justice and Parliament in assessing the constitutionality of legislation (h/t to bigcitylib):

Ottawa is crafting legislation that risks running afoul of the Charter of Rights and Freedoms without informing Parliament, a federal lawyer charges.

In a highly unusual case, Department of Justice lawyer Edgar Schmidt is challenging his own department in Federal Court and revealing details about the internal guidelines used by federal lawyers. The department accuses Mr. Schmidt of violating his duties as a lawyer and public servant and has suspended him without pay.
...
Both sides agree that the Minister of Justice has a duty to report to the House of Commons if proposed legislation or regulations are inconsistent with the Charter. Where Mr. Schmidt and his superiors disagree is over how that requirement should be interpreted.

Mr. Schmidt argues that Parliament originally expected the test for this would be whether, on balance, a measure is likely not in compliance. However Mr. Schmidt says that since as far back as 1993, government lawyers have been directed to approve all measures as long as they can imagine an argument in favour of compliance that would have a 5 per cent chance of success. The government does not confirm this, arguing any internal instructions must be kept secret as solicitor client privilege and cabinet confidences. 

- Meanwhile, Jeremy Nuttall reports that the Cons are choosing to serve as puppets for HD Mining in arguing that nobody has any right to question the assertions of an applicant for a temporary foreign worker permit - including the department responsible to evaluate an application.
 
- Kady O'Malley and Sixth Estate both discuss Julian Fantino's gross misuse of public resources for partisan attacks - with the latter post also raising this rather noteworthy point about Fantino's general competence:

Here’s the first one, written to the NDP. Notice that in the final paragraph Julian Fantino singles out Canada’s aid program in Haiti as a particularly successful one, worthy of attention. A few days ago, Fantino announced that he was not satisfied with the Haiti program and that Canada should eliminate its aid to that country. How you want to square these remarks is up to you.

- Lest anybody think Canada's Senate is the only obvious example of a non-elected actor which can interfere in legislative processes, Robert Booth reports on the stunningly regular exercise of veto power by the Queen over bills passed in the UK.

- And finally, speaking of unaccountable interference by privileged political actors, David Climenhaga discusses the continued links between the Koch brothers and the Fraser Institute - which of course hasn't come under the same scrutiny as analogous charities who aren't such regular cheerleaders for the Cons or right-wing causes.

Saturday Morning Links

Assorted content for your weekend reading.

- Stephen Maher follows up on this week's Supreme Court ruling on Etobicoke Centre by pointing out where we should be most worried about our electoral system:

Fraudulent voting is far from the biggest problem facing our democracy. Disengagement is.

Voting rates are declining steadily, particularly among young people, which means politicians see little point in discussing youth issues.

MPs are going to be looking at changes to the Elections Act after this fiasco, and they ought to tighten up the process. But I hope they won't require mandatory picture identification, as the Republicans are doing in the United States, because it discourages voting.

Our real problem is not with the tiny number of cheaters, but with all the people who stay home.

- And unfortunately, it looks like the Cons are taking advantage of exactly the opportunity I'd worried about in commenting on the case - seeking to capitalize on misplaced outrage at procedural snags to restrict real voting rights.

- Susan Delacourt wonders whether the failure of the Charlottetown Accord represented the point at which Canada's political class and citizenry parted ways. But I'd respond by noting that the constitutional wranglings of the '80s and '90s (which turned off the citizenry as reflecting elite concerns detached from voters' everyday lives) largely gave way to governments who have been similarly obsessed with negotiating elite-rooted trade deals inside and outside the country. And it's entirely natural for citizens to feel disconnected from governments who are more focused on limiting their own ability to act in response to popular concerns than actually improving the condition of Canadian lives.

- Janyce McGregor and the Huffington Post both review some of the contents of the Cons' latest attempt to run over democracy with an omnibus bill.

- Finally, I'll agree with Murray Mandryk that the most noteworthy development in the "Cons going off message" department is Brent Rathgeber's remarkably reasonable take on his party's union-bashing:

The proponents of C-377 argue that the tax deductibility of union dues somehow creates a public interest in what the collector of those dues does with them.  According to the theory, tax deductibility equals forgone revenue to the treasury, which makes it akin to public money and thereby creating a public right to know how the forgone tax dollars are spent.

...(I)f tax deductibility truly created a public interest, it would have to be more consistently applied.  As a lawyer, my law society fees are tax deductible.  Does that mean that the public has a right to know what the Law Society pays its staff??  I would argue no and certainly there is no existing obligation for the Law Society to disclose.  As a member of the club, I believe I have a right to know but do not see a similar right for non-members of the club.

Moreover, if I take a client out for lunch, 50% of that is written off as a business expense.  Should the restaurant have to disclose how much it pays the server and the cooks simply because of the tax deductibility of the meal??

I have obvious and I believe logical concerns regarding Bill C-377.  Although I unequivocally support the principle that union members have an interest in knowing how the union leadership spends its money, I am less convinced that non-members have a similar interest.  I eagerly await the Finance Committee’s deliberations; if there are no amendments considerably limiting the breadth and the scope of the Bill, I will be unable to support Bill C-377.

Saturday Morning Links

Assorted content for your weekend reading.

- Gerald Caplan rightly asks what media outlets think they have to gain by promoting anti-Muslim bigotry:

The goal of the Muslim-haters is surely clear enough. By lumping all Muslims together as terrorists, by equating a violence-prone Muslim lunatic fringe with all Muslims, by insulting the hundreds of millions of moderate Muslims everywhere, they alienate all Muslims and create among non-Muslims an irrational fear of and hostility to all Muslims. What purpose can this serve other than to provoke a clash, possibly a violent one, between Muslims and the rest? Anders Breivik didn’t come from nowhere, nor will the next Breivik.

But what’s the interest of certain media in enabling these haters to spread their gospel, to fan the flames of intolerance? What audience are they after? What do they expect their audiences to make of all this sympathetic exposure to rabid anti-Muslim feelings? Why are they inciting ordinary people to hate other ordinary people? Why?

- Though in fairness at least a couple of outlets are instead looking for other ways to divide Canadians as well - with Postmedia looking particularly unsubtle in having the nerve to criticize NDP MPs for not participating in what it explicitly describes as a hunt for "political skeletons".

- Chantal Hebert is right to note that this fall's provincial elections figure to have massive implications when it comes to other levels of government as well. But I'll reiterate that the issue isn't Ontario alone: instead, it's the real danger of a Con-friendly sweep in all of Saskatchewan, Manitoba and Ontario that could open the door for Stephen Harper to ram through constitutional changes on an ideological basis.

- Finally, Karim Bardeesy profiles Rathika Sitsabaiesan as the new face of the NDP. And those interested in joining in the festivities from her busy Regina trip (including a Q & A at the U of R this morning, a barbecue at noon and a wine and cheese social this evening) can get the details here and here.

On learning experiences

Let's close this blog's discussion of #vancon2011 with one last post, this time dealing with the NDP's constitutional preamble - which figured to be the convention's main topic of interest until it was deferred for further consultation.

There's no doubt that at least some delegates were prepared to fight hard against the proposed changes. But I'm far from sure that the amendment would have been defeated if it had come to a vote at the plenary: while the new preamble won only a narrow majority in the resolutions panel, that same panel was almost unanimous in beefing up and passing the non-merger resolution which was later defeated in plenary, signaling that the influence of the delegates most averse to change was likely to be much smaller in a full vote than it was at the panel level.

So we shouldn't see the deferral as being based on a conclusion that a vote on the preamble would have faced a foregone conclusion. Instead, it looks to reflect a genuine sense that there's room to improve the revised draft now that the NDP has a bit of breathing room.

Now that the consultation process has been set in motion, though, it may be even more important than one might think at first glance.

After all, one of the major criticisms leveled at the NDP in this spring's election campaign was its willingness to consider constitutional change at the national level. And even with the public much less averse to reopening constitutional talks than Canada's chattering classes, there isn't much room for doubt that some controversy would result.

With that in mind, the NDP will probably be well served to consider the revision of its own constitution - complete with a need to broker compromises among multiple types of supporters in the face of changing party demographics - as a smaller-scale test of the challenges involved in engaging in the same type of project on the national level. And if it can satisfy its internal constituencies and come to agreement with time to spare before the 2015 election, then the experience and end result should provide a ready counter if the same line of attack surfaces again.

Thursday Morning Links

This and that for your Thursday reading.

- Paul Wells is pleased to have received some response about how the Cons claim to be saving money. But it's worth taking a close look at the substance of that response, and particularly highlighting that one of the few general explanations actually looks to signal a plan for privatization and outsourcing rather than actual cost savings:

- Focusing on our core mandate and leveraging the expertise of the private sector – one of our key priorities is to provide opportunities for the private sector, particularly for small and medium enterprises. This means, in some cases, getting out of businesses that can be done by the private sector. By leveraging this expertise, our department will eliminate overhead costs, allow us to better focus on our core mandate, as well as support growth in the private sector.

Of course, how "supporting growth" of particular functions in the private sector is supposed to be desirable even as a government brags about eliminating those functions in the public sector is left as an exercise in corporatist dogmatism.

- Meanwhile, if the Cons were actually interested in eliminating their deficit responsibly, they'd do well to take a look at the list of potential revenue sources developed by Canadians for Tax Fairness.

- Chantal Hebert notes that any premier wanting to start a discussion about Senate abolition can get the ball rolling by passing a resolution which would demand a response from other governments. But I wonder whether that possibility might prove better for potential premiers than current ones: might, say, a platform commitment from the Saskatchewan NDP serve to win populist votes (particularly when compared to the Wall government's broken promises on the Senate issue)?

- Finally, it's worth noting that the NDP's focus on organization isn't limited to the resolution passed at #vancon2011, as pointed out by Jack Layton following his keynote speech:

In a news conference following his speech, Mr. Layton said the party has to strengthen riding associations, especially in those ridings where New Democrats came second, and build riding organizations for new MPs.

“It’s kind of a constant process. It’s like tending to a garden. You can’t sit back and watch. You have to work at it all the time.”

Mr. Layton said fundraising is also part of the exercise especially with the Conservative decision to eliminate subsidies for parties.

“We will be working hard to increase the number of people who give us a little bit of money. We have improved our fundraising dramatically over the last number of years, but we have more of that to do,” he said.

On destructive suggestions

Lest there be any doubt, one of the most important ways an opposition party can have influence in a majority Parliament is by choosing issues to highlight, thereby creating a perceived safe space for the governing party to act if it so chooses.

Which is to say that now might be a great time for the Libs to permanently dissociate themselves from Alf Apps - before Stephen Harper spots just the opening he'd need to elevate property interests to the status of constitutional rights.

Saturday Morning Links

Assorted content for your weekend reading.

- The McGill Institute's Election Content Analysis includes plenty of interesting information on how this month's federal election was covered. But the most noteworthy point looks to be the lag time between developments in the public and coverage by the media: the key developments in the polls for the NDP - reaching rough parity with the Libs around April 21, and passing them early in the week of April 25) - were followed by a roughly proportional boost in first mentions and overall mentions only several days later. (And indeed, even the last week of the campaign saw the Libs getting more overall mentions than the NDP.)

Of course, it's also worth noting that the lag time also offers an indication that we shouldn't be unduly concerned with the volume of media coverage: after all, the NDP's surge built up without any particular help on that front.

- And the NDP should anticipate that it'll mostly need to keep building outside the corporate media as well - a point which looks all the more clear in light of Sixth Estate's analysis of opinion-page content.

- Meanwhile, much of the punditocracy's response to the NDP's rise was to declare that it was out of touch with a perceived consensus on issues such as, say, its willingness to revisit Canada's constitution to secure Quebec's support. Too bad nobody thought to ask the public until now:

After almost two decades of constitutional peace, The Canadian Press Harris-Decima survey indicates a majority is now willing to risk re-opening the constitutional can of worms to accomplish some specific goals.

For instance, 61 per cent said they're prepared to re-open the Constitution to reform or abolish the appointed Senate.

And 58 per cent said they're willing to offer constitutional amendments in a bid to finally secure Quebec's signature on the Constitution. That includes 66 per cent of Quebecers and 55 per cent of Canadians outside the province.

Fifty-eight per cent also said they're willing to open up the Constitution to change the country's electoral system.

- Finally, Jim Stanford rightly slams the corporatist line that executives should be entitled to take credit for "creating value":

But my bigger point has to do with his claim that he “created value” for investors. This self-important shorthand is regularly invoked by business leaders to justify whatever it is they are doing. But do CEOs really “create value,” even if the share price of whatever organization they are in charge of happened to increase in a certain time period? A more accurate and neutral statement would be that Mr. Underwood was in charge of this REIT during a year when the market value of its unit price increased. Does this mean he “created value”? Of course not.

The market value of those units could increase for all kinds of reasons that have nothing whatsoever to do with Mr. Underwood’s talents: like a renewal of low-interest credit creation being used for speculative purchases of real estate-related financial assets (gee, I’ve seen that movie before, and it doesn’t end nicely), overall investor sentiment, the impact of low interest rates on capitalized real estate prices, the impact of tax loopholes on the value of income trusts (indeed, Mr. Underwood’s firm would not even exist where it not for the enormous and blatant tax loophole for income trusts which the federal government is finally now partially closing), and other macro factors.

The only people in Mr. Underwood’s industry who actually “created value” are the workers who actually build and maintain the structures which his firm owns, operates, and markets. Needless to say, the compensation for these genuine value-creators did not increase by 475% last year.

On windows of opportunity

Following up on this morning's post, the usual point made to dismiss the idea of abolishing the Senate is that constitutional change is haaaaard, such that we shouldn't bother proposing any changes which would require it. And based on Canada's constitutional history, that might make for a sound enough argument.

But surely the Harper era has taught us that we can't afford to rely on precedents and conventions to protect us from the Cons' drive to take and hold onto power. And I'd argue that in fact, constitutional change may not be far away.

To see why, keep in mind that there are five provincial elections set to take place this year. And while we should be cautious about putting too much stock in current projections, there's at least a real possibility that we could see both Manitoba and Ontario elect Harper-friendly governments, while the other three provinces maintain their current governments.

So let's ask: what's the worst-case scenario if that scenario comes to pass?

Adding wins for the Manitoba and Ontario PCs to the current small-c conservative governments in British Columbia, Alberta, Saskatchewan, New Brunswick and Newfoundland and Labrador, we would see a distinct rightward bent and Harper linkage to provincial governments from seven provinces representing well over half of Canada's population. And that's a highly significant standard, given that it would create an obvious opportunity for Harper to push for changes based on Canada's constitutional amending formula. (Incidentally, that window would face a significant risk of closing in 2013 or sooner when British Columbia holds its next election.)

Of course, there isn't much talk about how the amending formula might apply at the moment - which seems to be based largely on the fact that past constitutional discussions have been premised on an assumption that any change should be supported by at least an attempt at consensus across different jurisdictions and ideologies, rather than an opportunistic government seizing a momentary political alignment to pursue longer-term ideological goals.

But given Harper's pattern of using absolutely every possible angle for partisan and political gain, we can't afford to assume that he'll choose differently if it's possible to rewrite the constitution to his advantage. And he may have enough supportive provinces to impose a narrowly-focused set of constitutional changes (such as, say, adding private property rights to the Charter) without addressing other constitutional grievances or paying much attention to the values of Canada's general public - particularly if nobody else works on raising alternative points of view in the meantime.

What's more, I'm not sure Harper would even expect to pay much of a political price if he did push ahead with constitutional changes. After all, the ideological linkages being pointed out as a matter of federal voting choices would seem fairly consistent with the changes we'd expect Harper to consider. And similarly, the interests which would lead Harper to want to make constitutional changes are generally shared by the provincial governments he'd need onside.

So what should we take away from the prospect of Harper being able to rewrite Canada's constitution toward his own ends? To start with, we should approach this fall's provincial elections with a close eye on what the results might mean for our system of government federally.

But equally importantly, we should recognize that no matter how hard Harper works to lull us to sleep, constitutional change may not be any further away now than an attack on the Cons' political opponents was when they claimed to want to work collaboratively in the fall of 2008. And it's essential both to be aware of the possibility and to work on shaping any change that might be discussed before it's too late.

Tuesday Afternoon Links

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- Yes, the top story in EKOS' polling update is that the NDP's vote has stabilized in a solid second place nationally. But while not much has changed from the weekend's results, let's note that there is one interesting difference: the NDP managed to pick up even more ground in possible second-choice support, giving it a stunning 54.4% of voters rating the party as their first or second choice.

And based on the campaign so far, there's little reason to think that at least a few more of those potential supporters won't turn into actual ones by election day. (Needless to say, this includes the brouhaha over potentially revisiting Canada's constitution at some point in the future - which was apparently never seen as a big enough deal to interfere with Stephen Harper's path to power.)

- Meanwhile, Bruce Anderson explains why the NDP may have managed to catch its opponents by surprise:

(I)n my view a lot of people who aren't normally consumed with politics are looking at the NDP with fresh eyes, as it occupies centre stage in the last days of this election campaign. What do they perceive?

First, a leader with a passionate, friendly, easy manner. A guy who knows his way around a Tim Hortons and looks like he would draw a crowd to his table over a double-double.

They’d hear him say politics has too much mud-slinging and not enough progress on things that count for average folks. They’d listen to him go on about wanting to work with other people and parties, about hiring more doctors and nurses, “rewarding job creators,” “strengthening your pension” and “making your life a little more affordable.” The language is not that of class warfare, and the goals don’t sound weirdly utopian. These voters might compare Mr. Layton’s pitch with the urgings of Stephen Harper to avoid a coalition, to cut taxes, to strengthen law and order. Or the entreaties of Michael Ignatieff to rise up in defense of our democracy. The NDP themes might well compare favourably, as far as themes go.

- The Star rightly notes that a non-vote effectively serves as a vote for both the status quo and vote suppression, both of which play entirely into the Cons' hands:

This time, too, apathy is likely to amount to a vote by default for the Conservatives. That’s because large numbers of disengaged and alienated voters lean to Jack Layton’s New Democrats or to the Liberals. Those who opt not to vote risk becoming enablers of the Conservative victory that Harper claims is in the bag.

After five years of hyperpartisan, divisive minority government, the last thing Canadians need is to end up with a Tory majority by default because people couldn’t be bothered to turn out. As Harper himself observed on the weekend, “voters are never supposed to give absolute trust to anybody.”
...
The Conservatives don’t deserve to coast home again on a wave of voter apathy. Canadians should rouse themselves on Monday to cast judgment on Harper’s governance since 2006, and on the opposition parties’ competing visions. The country’s future is worth that much.

- But fortunately, there's little reason to think the Cons will get what they're after. And in the latest sign of desperation, Saskatchewan's Cons have followed up on their vacant house strategy with a short-lived attempt to use Saskatchewan's legislative buildings as a billboard.

Wednesday Morning Links

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- Lest there be any doubt, the Federal Court of Appeal's decision strongly rejecting the Cons' arguments about rebates isn't any more conclusive of the individual charges against four key Con insiders than the ruling below. But the fact that Elections' Canada's interpretation of the law it's in charge of enforcing has been found to be correct is still a rather important development - particularly since there's no general right of appeal unless the Supreme Court of Canada chooses to grant leave (which is does only in a small fraction of cases).

- Scott Payne's contribution to Aaron Wherry's series on the current state of the House of Commons is well worth a read. But I'd argue that his general metaphor is part of the problem: while politics are too often seen as a matter of merely hooking in votes on a one-time basis, the true measure of success should be to get people to want to be involved more generally.

- Having already duly mocked Lorne Gunter's inane column on the Senate, let's note that Chantal Hebert's more reasonable analysis still looks to be somewhat off base.

Of course, nobody will dispute the point that abolition figures to be a difficult process. But I'd argue (as the NDP seems to be doing) that the experience of Canada's previous failed attempts at constitutional reform should be taken as a signal that there's more chance of success in seeking a popular mandate on specific issues, rather than trying to cobble together a full constitutional package through complex negotiations with ever-changing parties.

And it's also worth noting that Stephen Harper used to agree on abolition as an alternative (with no such criticism from the likes of Hebert) - that is, until he stacked the upper chamber with enough of his cronies to be able to override the will of Canada's elected representatives.

- Finally, let's start working on the backlog of developments in the potash sector with this observation from Erin:

PotashCorp paid zero Potash Production Tax in 2010. In other words, the company is swimming in writeoffs and had no taxable profits according to Saskatchewan’s profit-tax formula.

The company’s entire $77-million royalty payment was the provincial resource surcharge, set at 3% of sales.
...
PotashCorp’s 2010 Canadian income tax expense of $333 million comprises about $200 million to Ottawa and $133 million to provincial governments. Because the company also operates in other provinces, Saskatchewan is probably getting less than $133 million.

Meanwhile, PotashCorp is paying $113 million of corporate income tax in Trinidad, where it has a nitrogen facility. In the previous year, 2009, it actually paid more corporate tax to Trinidad than to all levels of Canadian government!

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.

Pop quiz

One lobbyist (indeed, a lobbyist for lobbyists) makes a jaw-dropping claim in trying to contain the fallout from the Cons' selective leaking of budget consultation documents to a few of his kind:

"I would argue it doesn't help our reputation and that's unfortunate," said Charles King, president of the Government Relations Institute of Canada, a lobbying industry association. "Lobbying is a legal, constitutionally mandated [activity]. We play a very important process in policy development and I would argue we still continue to do that."

Your mission, should you choose to accept it: review the Constitution Act, 1867 and Constitution Act, 1982 and identify where private-sector lobbying is "mandated".

(Though in fairness to King, I'm sure he has some ideas as to how to change the current constitution to make sure the lobbying sector has a guaranteed place in our system of government.)

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.

Promising nothing

There's certainly reason for concern about what the Cons would want to change about Canada's constitution given the chance. But it's worth noting that their current musings don't seem to involve any change at all to the status quo other than more Con seats in Quebec:

Emphasizing the Conservative receptiveness to “Quebec's historical demands,” Labour Minister Jean-Pierre Blackburn raised the possibility of winning 30 to 40 seats in the province, up from the current 11.

“The recognition of the Quebec nation within Canada allows us to think that we can put some meat around it, and that a majority government is more able to do a number of things, while being respectful of all of the provinces,” Mr. Blackburn said in an interview.

And as noted in the Globe and Mail's report, there's plenty of reason to doubt the Cons are doing much other than trying to posture for soft-nationalist votes while rocking the boat as little as possible elsewhere:

The Conservatives are treading carefully to manage expectations and avoid a backlash in the rest of Canada...

Mr. Blackburn spoke positively, albeit guardedly, of launching further constitutional talks with the provinces if the Conservatives form a majority.

A number of constitutional changes require the assent of all of the provinces, but leadership on the matter usually comes from Ottawa.

Mr. Blackburn said the Conservatives are “much more receptive to Quebec's historical demands” than the Liberals, using language from the days of the failed Meech Lake accord that described Quebec as a distinct society.

All of which suggests that the Cons are offering little more than fuzzy language to hide their future agenda from one or more of their targeted voting blocs. Which from a strategic perspective looks to be a sign of resignation that the Cons aren't about to pick up the seats they need to build a genuine seat majority anywhere other than Quebec, and thus have to try to sell different messages in Western Canada and Quebec in order to improve on their current Lib-supported pseudo-majority.

Of course, the problem with that plan is that there's an easy response from the opposition: force the Cons to explain what they mean by "receptive" and "historical demands", then highlight the gap between the expectations the Cons are trying to build and what they're actually willing to commit to. And if the opposition parties can succeed in generating outrage over the Cons' duplicity among groups of voters who have seldom stood for the same in the past, then Blackburn's gambit may do little more than seal the Cons' fate as a one-term government.