Members of Parliament and the concept of work

One of the talking points from the Liberal Party concerning prorogation is that the Prime Minister has given MPs a “vacation” as the Members are left in the riding without work to do in Ottawa.

Despite the fact that Ignatieff himself was literally on vacation when his office was lecturing the Tories on the concept of work during the Parliamentary pause, many observers either are ignorant or purposefully neglectful of the truth when it comes to the responsibilities of MPs.

I spoke with an MP yesterday — perceived to be on vacation by the Ottawa press gallery and Liberals — whose backlogged caseload includes a large number of Haitian adoptions.

The glorious life of an MP isn’t just limited to heckling other Members in the House of Commons. Funny that the decorum of Parliament is mourned when the House of Commons is in session while democracy is declared dead when Members are given more time to accomplish casework in their ridings or elsewhere.

Take Liberal MP Jim Karygiannis who is not “on vacation” despite the bleatings of his fellow members of caucus. Karygiannis is currently in India “not working” on the work surrounding the case of Parminder Singh Saini, a convicted terrorist who was deported from Canada. Karygiannis is also in India for other MP related matters. Here is the report from PunjabNewsline.

Canadian MP visits Guru Aasra trust in Punjab, defends deportation of Saini
Punjab Newsline Network

Thursday, 28 January 2010

MOHALI: Jim Karygiannis M.P of canada visited Guru Aasra trust here Thursday on an invitation by SAD Panch Pardhani. Members of different religious,political and human rights organization questioned M.P regarding deportation of Parminder singh Saini convicted for hijacking plane. Saini was depoted to India from Canada on Wednesday.

First Ignatieff condemns Conservatives of taking vacation from his high horse stabled in the barn of his villa in the south of France, and now his own Member is — by the Liberal definition — “on vacation” in India.

A sample of articles about the history of prorogation in Canada

Page 1 (Drummondville Spokesman – May 27, 1930) has a bit of a parallel to today’s prorogation. The PM wanted to set a new direction with a new budget and new multinational economic unit. The Economic Action Plan of the 1930s?

Page 2 (Glasgow Herald – March 16, 1939) is a two inch column describing a potential prorogation of Parliament by the King himself.

Page 3 (Ottawa Citizen – June 30, 1938) describes a 200,000 strong group (and this before Facebook) to protest the government’s move to jail violators of a media blackout law on reporting election results! The article describes that ministers would not meet with delegates of the group due to a “rush to prorogue Parliament”.

Page 4 (Montreal Gazette – March 15, 1939) – Describes the King coming to Parliament to prorogue the session or give royal assent to bills if session business is not complete

Page 5 (Montreal Gazette – June 11, 1928) – Mackenzie King – “We have concluded all the business of the session, so far as the Government is concerned”. I have not been able to find reference to the Toronto papers called King a tyrant or a despot.

Page 6 (St. John Sun – July 13, 1906) – Description of prorogation and reintroduction of House business when parliament resumes.

Page 7 (Toronto World – May 17, 1916) – Controversy as GG not present for prorogation proceedings. Prorogation to be completed by Chief Justice instead (who was deputy GG)

Page 8 (St. John Sun – April 5, 1902) – Description of prorogation despite 28 bills on order paper in a provincial parliament.

Page 9 (Ottawa Citizen – May 19, 1916) – Prorogation unusually quiet and with lack of ceremony. Did the PM request prorogation via telegraph?

Page 10 (Ottawa Citizen – Mar 13, 1911) – A member of parliament suggests that Parliament prorogue due to Typhoid epidemic sweeping through Ottawa.

Page 11 (Poverty Bay Herald (New Zealand) – June 13, 1914) – Prorogation and Senate politics. A delay in prorogation causes a deadlock in the Senate with Senators refusing to pass a bill increasing the number of Senators in the Upper Chamber.

Page 12 (Montreal Gazette – May 18, 1909) – A rush to prorogation

Page 13 (Montreal Gazette – September 9, 1911) – The government insisted it prorogued because it could not get money bills through while the opposition accused it of blocking an inquiry into a slush fund.

Page 14 (New Zealand Evening Post – January 8, 1903) – Obituary of Canadian journalist who numerous parliaments that had “assembled and prorogued”

Page 15 (Ottawa Citizen – October 28, 1985) – Broadbent dismisses PM Mulroney’s valid option of resetting Parliament due to “disasterous” session to come back with new Throne Speech

Page 16 (Ottawa Citizen – November 26, 1983) – description of business prior to potential prorogation by PM Mulroney.

Page 17 (CBC – November 13, 2003) – Report of prorogation of Parliament by Chretien to allow Martin to assemble new cabinet.

There are numerous other stories regarding prorogation. According to a deep news search going back before the turn of the 20th century, today’s particular instance of Prime Minister-recommended prorogation has produced the most news stories in Canadian history.

For perspective, Google News shows that 1,561 articles have been written by the Canadian media in the last month regarding prorogation (as of the time of this blog post).

Comparatively, 1,351 articles have been written about H1N1 over the same time period by the Canadian media.

If we search for Google News stories concerning “prorogation” OR “prorogue” AND “Facebook” we learn that the Canadian media has written 424 stories, while the Facebook group protesting prorogation has 208,744 members. This amounts to 492 new members to the Facebook group for every MSM article referencing the group over the past few weeks. This number does not include television, magazine and radio coverage of the Facebook group. And to think, it all started with a “fury” of 20,000 when the group was in the budding stages of becoming an MSM darling.

An historical perspective shows that prorogation is quite a common parliamentary procedure in the country and most prorogations have passed without too much ink spilled on the pages of Canada’s historic newspapers.

So why the media fixation on prorogation? Canada’s news organizations are facing hard times and this news is evident to those who regularly buy newspapers — which, it seems, is not a lot of us. Budgets of Ottawa bureaus have been slashed with some offices closing completely. Prorogation may be a threat to those that report the news because of a sparser parliamentary calendar and a move by parent companies to prioritize resources elsewhere. An annual prorogation, as bandied about by the PM earlier, would not serve the Ottawa news business well.

Furthermore, the current vacuum of news content slices two ways; the frustration by many without content to fill columns and airtime and the news vacuum that now exists without anything else going on in Ottawa.

Significance of this week’s in-and-out decision

On Monday, the federal court decided in favour of the Conservatives against Elections Canada when the regulator’s chief electoral officer (CEO) Marc Mayrand decided to withhold reimbursements to two candidates because they similar ads used by other candidates with the “tagline” of the ads changed.

Justice Martineau decided that Mayrand was wrong to do so and ordered Elections Canada to reimburse. This litigation only involved two candidates out of dozens because it was a test case for the Conservatives. It was decided Mayrand cannot withhold from all since the judge has decided in favour of the two. Paragraph 178 of the decision explicitly states this,

[178] For the reasons below, having considered the totality of the evidence on record, the Court finds that the claimed advertising expenses were actually incurred by the applicants. That said, the amounts reported by each applicant must be corrected to have the difference between the commercial value of the claimed advertising expenses and the amount actually invoiced by the Fund reported as a non-monetary contribution. Ultimately however, the Court finds that the impugned decisions are unreasonable and must be set aside.

Most significantly, this decision should deflate any investigation by Elections Canada into Conservative Party expenses regarding the in-and-out scheme.

Also significant, Martineau decided how it is that a campaign incurs an expense. The CEO and commissioner were of the opinion that the Conservative Regional Media Buy was a sham. The CEO had argued that it didn’t see a contract for the regional media buy and therefore costs were not incurred by the campaigns. However, as the judge indicated, incurring an expense simply means to take liability upon oneself, therefore no written contract would be required. Paragraphs 121-124 of the decision reflect this. Further, Martineau decided that,

“[124] Accordingly, the Court finds that the respondent, or Elections Canada’s representatives, erred in law in requiring that there be actual written contracts between the candidates or their official agents and the supplier of the advertising services that were provided in December 2005 and January 2006. Payment for these advertising services in January 2006, by the official agents of participating candidates, is proof that these services were duly authorized. Moreover, as illustrated below, the requirement to have actual written contracts appears to be contrary to Elections Canada’s and the CEO’s past practices with regard to RMBs.”

It appears that the CEO has misinterpreted the statute.

Furthermore, the court accepts evidence provided by the party that describes how expenses are incurred in paragraph 151 as it describes the Donald Affidavit,

[151] Moreover, the evidence on record, including the practices of other registered parties as set out in the exhibits to Geoff Donald’s affidavit (a political operations officer with the Conservative Party), illustrates that there is a presumption that a candidate has incurred an advertising expense if said expense has been paid from the candidate’s campaign account.

The Chief Electoral Officer changed the Elections Handbook in 2007 for candidates and official agents. The handbook is the CEO’s interpretation of the Elections Act distilled in a more readable form. Paragraph 142 of the decision describes this concept,

[142] Over the years, the CEO has published various handbooks that articulate his interpretation of the Act. Among these publications is the “Election Handbook for Candidates, their Official Agents and Auditors” (the handbook). While this handbook provides insight as to how the CEO and Elections Canada have understood certain provisions in the Act at various points in time, it is in no way binding on the Court. Nevertheless, from a practical point of view, candidates and their official agents are strongly advised by the CEO to seek independent legal counsel if they wish to depart from the interpretation adopted by the CEO in the handbook.

A key point of contention between the Conservative Party and Elections Canada was that the CEO changed the handbook in 2007 from the 2005-2006 version and applied his interpretation as a regulator of elections despite the fact that the underlying statute had not changed.

In 2005, during the election, advertising regional media buys conformed with the 2005-2006 version of the handbook. Without any change to the statute by parliament, the CEO changed the 2007 version of the handbook with respect to how valid candidate expenses for regional media buys were defined. The Conservative Party argued that the 2007 handbook guidelines were retroactively applied to the 2006 election though the 2005-2006 handbook described expenses differently. Paragraphs 144-147 recognition by the judge that a retroactive application of the “rules” was applied,

[144] Nevertheless, a reading of all the handbooks published by Elections Canada up to, but excluding, the most recent handbook issued in March 2007 (the 2007 handbook), clearly suggests that the CEO will treat as an election expense for the purpose of reimbursement, any cost incurred by a candidate’s campaign for the purchase of an ad that is used to promote both the candidate and its affiliated party.

[145] The fact that the same ad would have been used by the party to promote itself on a different occasion would not be considered a reason for refusing to certify such an expense.

[146] This liberal interpretation of section 407 is reflected in the different versions of the handbook published by Elections Canada over time. For example, the handbook issued in December 2005 (the 2005 handbook) provides:

Election advertising
Election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party of the election of a candidate, including one that takes a position of an issue with which a registered party or candidate is associated….

Identification of election advertising
All election advertising that promotes or opposes a registered political party or the election of a candidate, including taking position on an issue with which a registered party or candidate is associated, must indicate that it is authorized by the official agent of the candidate.
(Emphasis added.)

[147] Indeed, the handbooks have even provided for the possible situation of a candidate and a party agreeing to share an ad. According to the handbooks, if such a scenario arose, the CEO would review the basis for allocating the cost incurred by each, to verify that it was reasonable. As mentioned in the 2005 handbook:

…The following are examples of transfers:
[404.2(2), 404.2(3)]
…a proportion of expenses incurred to promote or oppose a candidate or a party. Elections Canada will accept the basis of allocation used by the official agent, provided that it is reasonable in the opinion of the Chief Electoral Officer, and provided that the auditor agrees that the allocation is reasonable and in keeping with this handbook.

Again, regarding the handbook, the judge remarks that the CEO’s interpretation of the Elections Act is just plain wrong. The interpretation of statute by the CEO and change in interpretation is not supported by Act passed by Parliament. Paragraphs, 130 and 131 describe this,

[130] The respondent submits in his written memorandum that the object and scheme of the Act require subsection 407(1) to be read disjunctively, resulting in the following definition:

407(1) An election expense includes any costs incurred, or nonmonetary contribution received, by a [ … ] candidate, to the extent that the property or service for which the costs was incurred, or the non-monetary contribution received, is used to directly promote or oppose […] a candidate during an election period.

(Emphasis added.)

[131] According to the respondent therefore, to be an election expense for a candidate, the election expense must be used to directly promote or oppose a candidate, and not a registered party or its leader. The Court does not accept the respondent’s disjunctive interpretation outlined above. A plain reading of subsection 407(1) does not authorize the Court to discard the words used by Parliament in enacting this provision. Rather, a plain reading favours the conjunctive interpretation that was found in material published by the CEO prior to the 2006 election. Namely, an election expense for a candidate can be one that exclusively promotes a candidate, or it can be one that directly promotes both a candidate and a registered party or its leader.

Speaking to party officials close to the issue, what I get from them is that they feel that the CEO is making up the rules as he goes along, interpreting changes to the statute when no such changes have been passed into law by Parliament.

If we look at the recent victory by the Conservative Party against Elections Canada in the GST double dip litigation, we can see a pattern of this behaviour according to my sources. Paragraphs 78 and 79 of the Conservative Party Fund v. Canada (Chief Electoral Officer) decision suggest this,

[78] There is no basis in the statute for finding that, in the circumstances of competing policy concerns that are both directed toward furthering the policy of a “level playing field” among political parties, the interpretation that gives effect to the policy of a “level playing field” in respect of a political party’s maximum expense limit under section 422 must take precedence.

[79] Accordingly, I conclude that there is no basis in the Act, or in the Harper decision, for the CEO’s position that the policy of a “level playing field” for all political parties in Canada mandates the CEO’s interpretation of the Act in the face of the plain wording of the Act and the other considerations set out above.

Two separate court hearings before two different courts have concluded that the Chief Electoral Officer’s interpretation of statute has been flat-out wrong. In fact because of this poor interpretation of statute, the CEO has been making up rules as he goes along. This faulty interpretation of statute has impeded the Conservative Party specifically.

Troubling is the position of Elections Canada in this entire ordeal. Their role as a regulator is to apply statute passed by the will of Parliament. If they were to appeal this decision or proceed with an investigation, the regulator would then enter the arena among the partisans. Elections Canada should be educated by the court’s decision and not move to disagree because it would reflect a divergent view from that defined by statute and clarified by the Federal Court this week.

For reference, here are the two decisions discussed in this post:
Martineau decision, Federal Court – In and Out

Wilton-Siegel decision, Superior Court of Justice – GST double dip

Donate to the Red Cross via txt message

I sent in an inquiry to the Red Cross earlier this week about donations to the organization via shortcode. The American Red Cross has one set up for cellular users on American mobile networks, however, as I learned, Canada did not have a similar option for the Canadian Red Cross. Until today.

Here is the email I received from a friend at the Canadian Red Cross. They tell me that donations via shortcode are now live today.

So there you go. Text REDCROSS to 30333 to donate $5. Please pass this message along.

Victory in the in-and-out saga. Federal court rules for CPC.

In a decision that is certain to rattle Marc Mayrand at Elections Canada, the Liberals which prosecuted “trials” of Conservative election financing in Parliamentary committees and media observers that believe the worst about the Conservative Party, the Federal Court decided in the matter of L.G. Callaghan and the Chief Electoral Officer of Canada.

The question before the court was whether or not Elections Canada could legally refuse to certify, for the purposes of reimbursement under s.465 of the Elections Act, the claimed advertising expenses on the ground that it is not satisfied that the expenses have actually been incurred by the candidates themselves.

Here is the decision from the Federal Court:

The court decided that Mayrand inappropriately withheld expenses from Conservative candidates suggesting that these candidates in fact incurred those expenses, rather than the party. This means that the party has come in under the election spending limit (nationally) which is at the heart of this in-and-out debate. If the party has come under the legal limit, what else is there to talk about?

So far, Liberal MP Dominic LeBlanc has not provided comment. Here’s what he said on April 15th, 2008:

Mr. Speaker, the Conservatives are hiding the truth from Canadians. They filed a bogus civil suit against Elections Canada. They know very well that the RCMP never executes search warrants in civil cases. This morning, the RCMP executed a warrant in a quasi-criminal case.

How is it that the government does not know the difference?

I’ll post reaction from key players as it comes in.

Latest Haiti relief information from Ottawa

According to the Minister of Foreign Affairs and other sources:

The geology
– 7.3 magnitude quake at 16:53:09 on January 12th, 2010
– epicentre of quake, 15km from Port-au-Prince, 10km depth
– at least 12 aftershocks between 5.0-5.9 magnitude since
– first earthquake of this magnitude to hit Hispaniola since 1751

The numbers
– RCMP Sergeant Mark Gallagher among dead. Was on UN Peacekeeping mission.
– including Gallagher, four Canadians are confirmed dead
– 13 Canadians injured
– 550 Canadians have been located
1415 Canadians are missing
– between 50,000-100,000 Haitians dead
– one third of Haitian population (3 million) affected by quake
Catastrophic infrastructure damage in Port-au-Prince (satellite image for Google Earth)

The evacuation
– First wave of Canadian wave of evacuees landed in Montreal last night
– CF flights have evacuated 272 Canadians
– Three Canadian flights into Port-au-Prince

Deployed support and facilitation of foreign deployment
HMCS Athabaskan and HMCS Halifax en route to Haiti. Includes equipment and helicopters.
– Minister of Citizenship and Immigration Jason Kenney has exempted foreign nationals on non-commercial aircraft from obtained temporary visas if they are on their way to provide relief to Haiti
Canada has been refueling stop for Russian and Chinese aircraft en route to Haiti
– CF operation dubbed HESTIA

Financial Aid
– CIDA Minister Bev Oda has set up Haiti relief fund to match Canadian donations up to $50 million
– Ontario government has contributed $1 million to Haiti earthquake relief
– British Columbian government has contributed $500,000
– CRA warns donors to be informed of charities
– Staff fundraiser to be held on Parliament Hill for Haiti relief effort on January 25th at 6pm. Contact achristiano@summa.ca for details.

Canadian Reporters on the scene with Twitter
@smithjoanna (TorStar)
@jorgebarrera (Canwest)
@Stephen_Maher__ (Chronicle Herald)
@perreaux (Globe and Mail)
@althiaraj (Sun Media)
– My twitter list of reporters reporting on the Haiti relief effort (on the ground or en route)

Haitian earthquake relief – Please donate

Latest reports suggest that over 100,000 people have died in the earthquake that shook Haiti a couple of days ago.

Canada is on the scene for disaster relief while humanitarian groups are also supporting the effort.

The physical infrastructure in Haiti was terrible even before the earthquake and many homes have collapsed.

There are over 2,000,000 people in the capital city of Port-au-Prince and many of them need assistance.

Please consider donating to help the people of Haiti.

Latest news about the Haitian earthquake

Information for Canadians in Haiti:
Canadian Embassy
Delmas between Delmas 75 and 71
Port-au-Prince, Haiti

Telephone: 011 (509) 2249-9000 (Embassy)
Fax: 011 (509) 2249-9920
Email: General: prnce@international.gc.ca

Some pan-partisan Hill folks have set up a Facebook group with links where you can donate too.