The Liberal Track Record - Part II - Parliamentary Activity

"Screw work, when we're done this lets go get drunk and puke on some foreign officials"

Since reporting on legislation began in 2001 the Liberals have managed to maintain an appaling productivity rate.

The CPC and Alliance introduced bills at a rate three times higher than the Liberals since inception. Below you can see an analysis of work levels of each party since 2001.

The Liberals as a majority were significantly outworked by the CPC & Alliance, highlighted by the Alliance introducing a whopping 3 bills per member to a dismal Liberal .7 bills per member rate in 2002.

And this is why I don't trust Stephane Dion. He is part of a holdover group of Liberals who are used to a laidback, style of governance. Stephen Harper is clearly a more effective leader, motivator and manager as demonstrated by the work ethic of the Conservatives over the Liberals.


"Excusez moi, do you know where the house of commons is... I'm late for my first day of work as leader of the hopposition?"

Productivity Statistics
This Parliament, still current - CPC Minority Government
Conservative Party - .7 bills introduced per member
87 bills introduced, 124 members
Liberals - .5 bills introduced per member
55 bills introduced, 103 members

Last Parliament - Liberal Minority Government
CPC - 2 bills introduced per member
131 bills introduced, 66 seats
Liberals - .82 bills introduced per member
111 bills introduced, 135 seats

37th Parliament, 3rd Session - Liberal Majority
CPC - 1.8 bills introduced per member
131 bills introduced, 72 members
Liberals - .7 bills introduced per member
119 bills introduced, 172 members

37th Parliament, 2nd Session - Liberal Majority
Alliance - 2.8 bills per member
190 bills introduced, 66 members
Liberals - .75 bills introduced per member
128 bills introduced, 172 members

Sources - http://www.parl.gc.ca/LEGISINFO/

The Business of Climate Change

Well many economists and politicians have looked at both the cost of reducing GHGs and the cost of not reducing GHGs, not many have publically looked at the opportunity afforded by GHG reduction.

But apparently big business has...

As reported here, TXU will be acquired by a massive financial conglamurate, for the world's largest acquisition ever. Out of that comes a promise from the conglamurate to bury the proposal of building 8 of 11 coal-fired plants. Clearly a very financially savvy group thinks there is money in other alternative sources.

Other mergers have happened as well in energy and emissions management. A euro/american merger of carbon-credit trading companies was announced here today. Mergers and acquisitions could be early indicators of a blooming industry where profits are expected.

Trading-wise, Wall Street has also jumped on board with several emerging technology funds for investing in green technologies:

PowerShares Wilderhill Clean Energy Portfolio (PBW)
PowerShares Wilderhill Progressive Energy Portfolio (PUW)
PowerShares CleanTech Portfolio (PZD)

The three funds have all had recent gains upwards of 6% as reported here.

And if Green seems to risky there are a number of 'sustainable business' investing options such as the Dow Jones Sustainability Index Fund.

On top of that there is no shortage of green investment advisors on the web:
SustainableBusiness.com keeps a handy track of the top 100 Sustainable Stocks and outlines global green investments topped $30B last year!
GreenMoneyJournal.com offers a slew of green investing advice.
And so on.

The morale of the story is that money will be made in the green movement. Just like the boom of the internet, we're seeing the early stages of a green crest, an enabling 'technology' that will create more jobs in a new sector and massive economical transformation. Much like in the industrial era, jobs were lost but new and better jobs were found. Oil & gas profiteers and government bureaucrats need to get out of the way and let the market take its course.

The Liberal Track Record - Part I - The Environment

Sometimes I am amazed that most people don't understand the depths of incompetence of the Liberal governments - and how little they invested in new infrastructure or put through meaningful legislation for most of their time in power. Ministry by ministry one can easily go through and see incredible lack of thought and progression. While there was a brief moment of movement under the Paul Martin government, without true pressure from the general population it seems generally that the Liberals acted like resource rich despots and took the country for granted. So here goes my department by department criticism of the Liberal government of yore:

Environment

David Anderson
Environment Minister
Dog's Name - Kyoto

Stephane Dion

Environment Minister

...later named his dog Kyoto

Without a doubt the Liberals were one of the worst environmental government this side of WWII. Under a period of shifting environmentalism Canada continually ranked last in the 90s amongst the OECD and were generally slow to adopt mainstream policies in the US and Europe. Some of the highlights of their incompetence are well known:
1. GHG emissions up by 26% over their tenure
2. Canada becomes the worst per capita consumer of energy, overtaking the USA in 2001 (source OECD).
3. Canada went from an environmental leader to laggard ending up in second last place in the OECD across a broad spectrum of environmental issues (source OECD).

But those are widely known and discussed - what about some of the lesser known facts:
1. From 1998-2000 the USA decreased toxic air emissions from plants and mills by 8%, while Canada increased by 7%. Thats right, all the criticism we direct towards the USA is a double standard. (source Commission for Environmental Cooperation)
2. Canada lagged behind the world in creating effective policy on SO2. While in the USA they passed nation-wide legislation capping SO2 and NO2, in Canada only Ontario has such a system in place. I mean the USA passed legislation when Regan was in government! The following diagram shows a US vs Canada graph of oxygenation improvements:




But I thought all of our smog came from the USA? Thanks Liberals!

In 2004 the annual Taking Stock report issued by NAFTA was pretty clear in its prognosis "Canada lags behind U.S. in curbing toxic emissions".

Some interesting notes in the report:
"Although total North American emissions declined by 18 per cent from 1998 to2001, Canadian emissions rose three per cent. "\
Canada's poorer record in curbing toxics is probably due to the lack of federal air-quality legislation, William Kennedy, executive director of thecommission, said in an interview. The U.S. Clean Air Act sets binding regulations for air polluters, butOttawa depends mainly on voluntary and negotiated agreements. "

3. Between 1990 and 2000, in an era of OECD led energy conservation, automobile travel increased 9% and the corresponding fuel consumption increased 21% - led by the constant criticism of Canada's poor attempt at a national railway system.

Even worse is when you look outside the common environmental KPIs of GHGs and air quality.

Canada is second worst to only the USA in terms of water consumption, ranking 28th out of 29.
Nuclear waste - Canada is set to surpass the USA in total volume of nuclear waste in 2010... a country 10x our size!
But its ok... because for overall hazardous waste in 2001 we ranked 24th out of 27 nations. With agricultural outputs its only more of the same, 22nd out of 28 for pesticide use and 25th out of 28 for fertilizer use.

Even worse is that by increasing GHGs, Canada explicitly violated the UN framework for climate change and ruined all the hardwork we had done as a country in the 1980s based on the Montreal Agreement and elimination of CFCs and decimated the international view of Canada as the ultimate green country. Thanks Liberals - we love being light years behind Europe!

For more reading on the environmental trends of Canada in the 90s you can read:
http://www.environmentalindicators.com/htdocs/PDF/FullReport.pdf
or read the book Unnatural Law.

Next up is fisheries, foreign aid, military and peacekeeping, first nations, etc, etc and maybe for fun I'll take on the Liberal stalwarts of education and economy.

Who Likes White People - Diversity in the Judiciary

Some of us believe in having judges play a larger role in selecting judges and that Harper's movement away from that is wrong. This is what happens when judges self-appoint:


The Supreme Court of Canada - 2006, Aren't we a multicultural country?


Here's a list of all the CJC members. Count out the women and minorities yourself:

Canadian Judicial Council Names -
The Right Honourable Beverley McLachlin, P.C., C.J.C. (Chairperson)
The Honourable John D. Richard, Chief Justice of the Federal Court of Appeal
The Honourable Allan F. Lutfy, Chief Justice of the Federal Court
The Honourable Donald G. H. Bowman, Chief Justice of the Tax Court of Canada
The Honourable Gerald J. Rip, Associate Chief Justice of the Tax Court of Canada
The Honourable Edmond P. Blanchard, Chief Justice of the Court Martial Appeal Court of Canada
The Honourable R. Roy McMurtry, Chief Justice of Ontario
The Honourable Heather J. Smith, Chief Justice of the Superior Court of Justice (of Ontario)
The Honourable Dennis O'Connor, Associate Chief Justice of Ontario
The Honourable J. Douglas Cunningham, Associate Chief Justice of the Superior Court of Justice (of Ontario)
The Honourable J.J. Michel Robert, Chief Justice of Québec
The Honourable François Rolland, Chief Justice of the Superior Court of Québec
The Honourable Robert Pidgeon, Senior Associate Chief Justice of the Superior Court of Québec
The Honourable André Wery, Associate Chief Justice of the Superior Court of Québec
The Honourable J. Michael MacDonald, Chief Justice of Nova Scotia
The Honourable Joseph P. Kennedy, Chief Justice of the Supreme Court of Nova Scotia
The Honourable Deborah K. Smith, Associate Chief Justice of the Supreme Court of Nova Scotia
The Honourable Robert F. Ferguson, Associate Chief Justice of the Supreme Court of Nova Scotia, Family Division
The Honourable Ernest Drapeau, Chief Justice of New Brunswick
The Honourable David D. Smith, Chief Justice of the Court of Queen's Bench of New Brunswick
The Honourable J. Edward Richard, Senior Judge of the Supreme Court of the Northwest Territories
The Honourable Richard J. Scott, Chief Justice of Manitoba
The Honourable Marc M. Monnin, Chief Justice of the Court of Queen's Bench of Manitoba
The Honourable Jeffrey J. Oliphant, Associate Chief Justice of the Court of Queen's Bench of Manitoba
The Honourable Gerald Mercier, Associate Chief Justice, Family Division, of the Court of Queen's Bench of Manitoba
The Honourable Lance Finch, Chief Justice of British Columbia
The Honourable Donald I. Brenner, Chief Justice of the Supreme Court of British Columbia
The Honourable Patrick D. Dohm, Associate Chief Justice of the Supreme Court of
The Honourable Gerard E. Mitchell, Chief Justice of Prince Edward Island
The Honourable Jacqueline R. Matheson, Chief Justice of the Trial Division, Supreme Court of Prince Edward Island
The Honourable John Klebuc, Chief Justice of Saskatchewan
The Honourable Robert D. Laing, Chief Justice of the Court of Queen's Bench for Saskatchewan
The Honourable Ronald Veale, Senior Judge of the Supreme Court of the Yukon Territory
The Honourable Catherine A. Fraser, Chief Justice of Alberta
The Honourable Allan H.J. Wachowich, Chief Justice of the Court of Queen's Bench of Alberta
The Honourable Neil Wittmann, Associate Chief Justice of the Court of Queen's Bench of Alberta
The Honourable, Clyde K. Wells, Chief Justice of Newfoundland and Labrador
The Honourable J. Derek Green, Chief Justice of the Trial Division of the Supreme Court of Newfoundland and Labrador
The Honourable Beverley Browne, Senior Judge of the Nunavut Court of Justice


Wow - I don't think there is one non-white person name there. For a country of immigrants that sure is a lot of white people!

You can go through the Provincial Courts of Justices and find the same issue repeatedly.

Here's some stats from the CJC itself:
Females - 26%
Minorities - this is from the Canadian Judicial Council and I love it... "To the best of our knowledge, no such information exists."

Sorry isn't this the year 2007? Why is our judiciary living in 1967? Because oligarichal structures have a tendency to promote the 'like begats like' phenomonen and because our system has and is broken. Harper's changes change nothing... the system is broken, politicized, not representative, and so on and so forth.

Also we incorporated French Civil Law into our constitution, why didn't we include Aboriginal Traditional Law - where are the first nations on the supremely white court and in the constitution of Canada?

The Mysterious Case of the Missing Cod Solved

The who-dun-it mystery of the disappearing cod of the 90s has finally been solved. And the culprit is... the Beaufort Gyre, thats right the Beaufort Gyre. Bloomberg reported here today that science has solved the mystery.

We've heard all the spectacles of dragging nets and fishing well over-quota. We've all heard blame being shifted onto those pesky Spaniards, Portuegese and British boats.

But now in the aftermath we learn this from Bloomberg:

A reversal of wind direction with a record drop in arctic air pressure pumped the water through the Canadian archipelago in the late 1980s and 1990s, according to a study in tomorrow's issue of the journal Science. The cold water helped spoil the cod habitat while improving conditions for snow crab and shrimp.

The cool water comes from a large body called the Beaufort Gyre, which borders the arctic ice shelf. Clockwise-turning winds build up water from rain and melting ice. About every 10 years, the wind direction reverses, dumping the Beaufort Gyre into the surrounding ocean. Increased rain and melt-off, possibly due to global warming, contributed to the record spill.

Sorry???? Huh???? By Beaufort Gyre do you mean evil Spaniard boats with big dragging nets? I'm befuddled - is nothing ever what it seems it is in this crazy complex eco-system of ours. So who exactly is the bad guy? Mother nature?

All this article has done is temporarily frustrate me and remind me of my hatred of the media and my hatred of environmental reporting. Its taken me back to the frustrating world of 'alarmists' vs 'denialists'. The 'denialists', 'skeptics' and 'moderates' will jump all over this tomorrow and say this is proof that all is not what it seems. The 'dirty hippies', 'greens' and 'progressives' will spin the science behind this article away and revert to the very large body of existing evidence that points back to overfishing and dragging nets. And I'll be confused with one more culprit on my list of potential murderers - dragging nets, dirty europeans, and now one Monsieur Beaufort Gyre.

Canada's Politicized Judicial Selection Process

"Everything else about the appointing process is left to the discretion of the appointing Cabinet, and it remains shrouded in vagueness, and unsubstantiated rumour and gossip." - Professor Zeigert, 1985.

The process with which the Canadian federal government selects judges has been under scrutiny the last few days following the controversial policies of Stephen Harper to try and create a 'tough on crime' ideology in the courts of Canada.

Many persons have both accused Harper of politicizing the selection process, ruining judicial Independence and creating a scenario where rule of law no longer exists. In this discussion, I will attempt to counter each point based on historical context, political theory and law. Afterwards there is a discussion on possible models for Canada and what potential Canada has for progression of judicial independence.

Politicizing the Selection Process
Since the Constitutional Act of 1867, appointing of judges in the upper courts has been the sole prerogative of the executive branch of power, the Governor General, in whom they divest the power to the Prime Minister and the Minister of Justice. Prior to 1967 there was no set process used within the judicial system for recommendation or selection. Not to surprisingly, the Canadian Bar Association found that in the 1950s and 60s most appointed judges were supporters of the the party in power at the time (CBA, 1985).

In 1967 the CBA established the National Committee on Judiciary, a committee intended on evaluating potential judges from within the judicial and legal system, on behalf of the Minister of Justice. But since the Minister of Justice was performing the original shortlisting the selection process was still heavily partisan, eventually erupting with the Trudeau and Turner era of mass cronyism and patronage appointees.

All of this led to the McElvy Committee, which indicated that patronism was abundant and that reform was required, and also partially led to the fall of Trudeau and Turner era and the rise of Mulroney.

In 1988 Mulroney's government made meaningful contribution when he introduced a process whereby potential judges applied and were screened by a committee, compromised of:
-a local CBA member,
-a rep of the chief justice of the province,
-a rep of the attorney general,
-three reps of the federal minister of justice,
-and a non-voting member of the office of the minister of justice.

Originally this process was used for provincial court appointments, in 2004 Paul Martin extended it to selection of judges for the supreme court (CBA, 2004). Prior to 2004 there was no committee system in place for the supreme court!

Ultimately though the end decision always has and most likely will reside with the Minister of Justice and the Prime Minister - who are free to appoint candidates, recommended or not, on the list or not.

So the question is - what has been the impact of this change in process to include a an initial committee review structure outside of the legislature? Did this change in selection de-politicize and remove partisanship from the judicial selection process? Did this change result in better judges?

Three major research projects answer 'no' to the question of partisanship. All three based on matching party donations to judicial appointment found a clear pattern of partisanship. On one extreme the Ottawa Citizen reported the Liberals as nominating judges who had made donations 60% of the time at the lowest extreme draft research by Ridell found from 1989 to 2003 that 32% of nominations were connected to party donours. In addition there is the accusation of Benoit Corbeil during the Gomery Enquiry, claiming that Quebec lawyers were appointed based on campaigning for the Liberal party.

Some may argue that partisanship is inherit in the system. This would force us to perform comparison to other Commonwealth nations. Sir Robert Megarry argues that patronage was non-existent after 1950 in Britian, and the recent change to a completely non-governmental judicial selection committee effectively eliminates the possibility. Malleson and Roberts highlight patronage as an issue in Canada but not in either of New Zealand or Australia in a comparative study of appointees.

Ultimately, in a historical context, Canada has been fairly poor in its process of judicial selection.

Now lets take Stephen Harpers proposed change in that historical context.

Harper has included police in the committee that reviews potential judicial appointments. His list of potential police reviewers are, as reported by the media, to largely consist of Conservative supporters.

Ultimately the partisanship of the committee does not matter because it is the minister of justice and prime minister who make appointments. Harper could nominate 'tough on crime' judges without bias police being included on the committee. Therefore police being included on the committee has no impact on the politicization of a system that is already, intentionally, politicized, partisan and filled with patronage appointments.

Ruining Judicial Independence

In the historic case of Valente v. The Queen, the Supreme Court defined the notion of judicial independence as the following three core characteristics:
1. security of tenure,
2. financial security, and
3. administrative security.

The UN Special Rapporteur on Judicial Independence further expands independence to include the following tenants:

4. Independence of judiciary enshrined in the constitution or legislation.
5. Immunity
6. Accountability


Independence of Judiciary Enshrined
In Canada independence has been granted since the Constitution Act, 1867. These originally included right to tenure and right to salary determined by the Parliament. In 1982 the Charter spread independence through the criminal lower courts (i.e. federally related lower courts) as well as higher courts. Finally in 1997 the Supreme Court, in the Provincial Judges Reference indicated that independence was given in the original constitution act throughout all judges - including provincial civil law judges.

Security of Tenure
The Canadian Judicial Council is a self-regulating council which receives complaints and can direct committees to perform inquiries on a judges competency. If deemed incompetent the judge can be removed from office. Note that in Alberta Ralph Klein was famous for his "if we hired him, we should be able to fire him" comment and attempt to change provincial law, and breach security of tenure.

Financial Security
Every three years an independent commission is appointed by government to inquire into the adequacy of salaries.

Administrative
In Canada the courts have control over downstream budgets for court staff and other administrative functions.

Immunity
In Canada Judges are immune from civil and criminal law in respect of judicial decisions. For instance if a judge gave the death penalty they could not be tried for murder.

Accountability
Judges are accountable first and foremost to the rule of law. They must decide cases based on evidence and the law. With the exception of the highest appellate court all judgements as well as the manner in which they were conducted can be appealed. All judicial proceedings are conducted in open court under the scrutiny of the bar, the public and the press. Judgements are under scrutiny by courts of appeals, by other judges, the legal profession, academics and the press and public.

As shown above by the Canadian and UN defined notions of Judicial Independence, Harper's changes have no resultant impact on any of the key tenements of independence.

Rule of Law
John Adams' quote is my favourite definition of rule of law -
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Clearly adding police to the appointee review committee has no wherewithal in terms of creating a change in power between executive, legislative and judicial powers. The Prime Minister always has and most likely always will have full executive power over appointments. Whether or not his review committee suggests judges with a particular bias doesn't impact the division of power in the country.

Concluding & Going Forward
While in the past most appointments were made in-line with the general consensus and moderation of Canadian people - there is a strong history of partisanship in Canadian judicial selection process. Harper's changes to a committee that reviews potential appointees still have no bearing on actual selection.

Stronger arguments would be that Harper is committing judicial activism, as he is attempting to vote judges with a specific agenda in mind. But that is his democratic prerogative because of the power vested in him.

As stated in the Ethical Principles for Judges, the underlying code of ethics for judges in Canada:
“True impartiality does not require that the judge have no sympathies or opinions: it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.” The judge’s fundamental obligation is to strive to be and to appear to be as impartial as is possible.

Professor Ziegel, a renown Canadian expert on Judicial independence, also intimates -
"…Supreme Court judges should not be clones of each other but should have varied background and experiences and should represent a spectrum of philosophical positions on the most pressing constitutional issues…"

So it is clear that Harper, in the future, will be appointing judges with a different frame of reference. But does that mean our system will become less independent or not under the rule of law? Clearly by the inherit definition of independence itself and the constitutional split in power.. it will not.

Ultimately the question will lay on the quality of the judges selected. Will Canada continue to appoint "high-quality" judges? Harper's current track record indicates so, but only the test of time provides proof.

Going Forward
There are various other systems available -
1. Keep the power in the executive
2. Switch the power to the legislature - the US style of Senate hearings
3. Switch the power to the electorate - US state style
4. Switch the power to the judiciary - now Britain style

Ultimately the question is do you believe in the need for democracy in the judiciary?

Professor Ratushny of the Ottawa Law School explains:
"It may be confusing then to refer to a perceived need to “democratize” appointments to the Supreme Court of Canada or to reduce the “democratic deficit” in the judiciary. The Supreme Court of Canada is not a “democratic” institution even though it is an essential institution within our democratic system under the rule of law. Its role is not to be democratic, but to be judicial. It is not elected by the public and it is not accountable to the public for the content of its decisions."

All the systems have strengths and weaknesses.
Electorate means judges have to pander towards the populous, and has generally been publically accepted as not desirable in Canada.
Executive means there may be a democratic deficit or partronism as visible in Canada.
Legislature means there will be messy scrutiny, as visible in the US system.
Judiciary is prone to oligarchism and generally bringing about a system of "old, white, christian" men as reported by Malleson in Britain.

Perhaps some balance can be found in new models - but for now there does not seem to be a ready answer for Canada's politicized judicial selection process.

Sources:
A Place Apart: Judicial Independence and Accountability in Canada M.L. Friedland
Sir Robert Megarry, 2002
Malleson & Russel, 2006
http://www.icclr.law.ubc.ca/Publications/Reports/RuleofLaw.pdf
http://www.cba.org/CBA/submissions/pdf/04-10-03-eng.pdf
http://www.cpsa-acsp.ca/papers-2006/Riddell.pdf
http://www.laws.qmul.ac.uk/staff/p_article/malleson_article.pdf
http://www.law-lib.utoronto.ca/conferences/judiciary/readings/confhearings.doc
CBCs Ideas on Judicial Activism, http://podcast.cbc.ca/mp3/ideas_20061113_1185.mp3

1993 Election All Over Again?

Jim Elve wrote a good post at Blogs Canada outlining new polls from the Strategic Counsel for CTV and The Globe and Mail:

When asked how respondents would vote today, the Liberals showed a significant drop since Dion first won his party's leadership race (percentage-point change from a Dec. 3 poll in brackets):

Liberals: 29 per cent (- 8)
Conservatives: 34 per cent (+ 3)
NDP: 14 per cent (none)
Bloc Quebecois: 11 per cent (none)
Green Party: 12 per cent (+ 5)
(Full article)

His article prompted me to respond as such:

Remember 1993... is the next election all playing out like some perverse reverse image of it:

1. Doesn't Dion kind of remind you of Kim Campbell in terms of perceived weak character, lack of leadership, etc? Will we see him nude in the Toronto Star?

2. Much like the Bloc and Reform fractured the PC vote... the Greens and NDP are fracturing the Liberal vote.

3. The Greens definitely represent the Reform from 1993... a one issue party. Now the real question is will we get the Green equivalent of the late election Reform melt-down so-con comment? Some sort of late in the game eco-terrorist comment???

4. Do you remember how nobody really trusted Cretchien, but they felt they had no other choice with Kim Campbell and Preston Manning as the other two candidates? Is that Harper now with Dion and Layton?

5. There is one change... the federal NDP isn't hopelessly paralyzed by Bob Rae's Ontario provincial government!

6. How do you differentiate Dion, May and Layton? Aren't they all the same to the average voter... green, socialism lite and progressive?

7. Do you think all the past Liberal stalwarts that were ballied around as competition to Paul Martin are kicking themselves for not hanging around... Alan Rock, John Manley, etc? Isn't that kind of like Joe Clark not getting in after Mulroney?

Anyways, I'm calling for a CPC majority if the election occurs in the next 4 to 6 months.