The “Fair Elections” Bill

Two followers of this blog recently asked me to comment on the Harper government’s Bill C-23, the so-called “Fair Elections Act.” An open letter on the Op-Ed page of the April 23^rd edition of the Globe and Mail signed by more than 400 Canadian academics provides a good summary of the bill’s major flaws. I support the arguments of its authors and will not attempt to duplicate them here. Today, April 25^th, the government introduced significant amendments to the bill which appear to remedy some of its worst features. What follows represents commentary on the arguments put forward in support of the original bill.

As I read the defenses of the bill put forward by its proponents including Senator Linda Frum and the Minister of Democratic Reform Pierre Poilievre, I am struck by how perfectly their arguments illustrate points made by George Orwell in his 1946 essay, Politics and the English Language. “In our time,” Orwell wrote, “political speech and writing are largely the defence of the indefensible… Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness.”    

The question-begging used to justify Bill C-23 begins with its title. It is always a warning sign when a bill is given a value-laden title to put its proponents on the side of the angels and its critics on the defensive.

We seem to have borrowed this disreputable tactic from the Americans. When George Bush brought in legislation in the wake of 9-11 to allow the U.S. Intelligence services to carry out previously illegal wiretaps, searches without warrants, and the detention of persons suspected of terrorist sympathies without charges, he called it the Patriot Act. By implication, anyone who criticized the bill’s infringements on civil liberties guaranteed under the U.S. constitution was unpatriotic.

Similarly, by calling Bill C-23 the “Fair Elections Act,” the government brands its critics as defenders of unfair elections, while asserting that the current Elections Act and those who administer it allow, if not encourage, “unfair” election practices.

The “euphemism” and “cloudy vagueness” employed in defence of the bill are on a similar level of intellectual dishonesty. For example, the bill prohibits the Chief Electoral Officer and Elections Canada from encouraging and enabling eligible voters to cast their ballots. Senator Frum claims that this frees them from a “conflict of interest,” because otherwise they would be tempted to allow ineligible voters to vote in order to increase voter turnout. This is equivalent to arguing that, although the police have a mandate to prevent crime, they should not be allowed to engage in crime prevention programs because doing so will tempt them to under-report criminal activity to show that their efforts have been effective.

Not to be outdone, Minister Poilievre claims that the voter ID provisions of the bill are “common sense and reasonable. For example, it makes the reasonable request that people show ID when they vote.” What the bill does in fact is to make it more difficult for eligible voters to identify themselves and their address by doing away with the practice of having one’s identity vouched for by a neighbour or relative and the use the of the voter cards issued by Elections Canada to prove one’s address. So it is “common sense” and “reasonable” to demand voters show ID with proof of their address, while making invalid existing cost-free means of enabling legitimate voters to meet that requirement.

Similarly, the bill increases penalties for election fraud, but refuses to give those prosecuting and investigating this crime the ability to compel witnesses to potential fraud to testify. Without such testimony it is very difficult to successfully prosecute such practices as systematically directing supporters of other parties to the wrong polling location. So, in the name of “fairness,” the Harper government proposes to do nothing to ease the prosecution of exactly the kind of fraud the Conservatives were accused of engaging in during the last federal election.

In the past, amendments to the Elections Act have been developed through all-party consensus which drew on recommendations from elections officials charged with the responsibility of administering it. In drawing up and defending the “Fair” Elections Act, the Harper government has ignored suggestions from other parties and elections officials and gone out of its way to undermine the motives and credibility of those officials in order to restrict their mandate.

To any unbiased observer it is clear that, for the government, Bill C-23 had two purposes. The first was to use the fictional spectre of mass impersonation of voters through vouching to justify making it more difficult for eligible transient and low income Canadians to vote. Why? Because the Conservatives believe such people are unlikely to support them. The second was to continue to deny Elections Canada officials and the police the powers they need to effectively investigate the kind of vote fraud their party was accused of attempting during the last election. Those purposes were clearly indefensible; necessitating tortured justifications for the bill which illustrate all the characteristics Orwell identified 68 years ago.

The “First Inning” of
the Toronto Blue Jays 2014 Season
Baseball has the longest season of any of the major professional sports- 162 games. So far the Toronto Blue Jays have played just 19 games; winning ten and losing nine. If we consider each 18 game segment of the season as an inning, the Blue Jays are barely in the top of the second inning of their season. What can we say about them at this early stage of the season?
So far, as befits their overall record, the Jays have shown both encouraging and discouraging signs. Their starting pitchers have thrown four shutouts, although knuckleballer R.J Dickey has been ineffective. Their defence has been positively outstanding and some of their key hitters- Melky Cabrera and Jose Bautista- appear to be in midseason form. The return of Jose Reyes at shortstop and as leadoff hitter following a hamstring injury should improve both the infield defence and the offense. On the other hand, the relief pitching has been woefully inconsistent, squandering late inning leads by putting on base-runners via walks and then giving up key hits. Key hitters like Canadian third basemen Brent Lawrie and first baseman Edwin Encarnacion are still struggling and left-handed DH, Adam Lind, who started well at the plate, is currently on the injury list.
Expectations were low for the Blue Jays coming into the season. They had 74 wins and 88 losses last year and were rated 24th among the 30 major league teams by Sports Illustrated in that magazine’s 2014 preview issue. It projected them to finish at 73-89 this year, placing last in the tough American League East division. Since they currently hold the second wild card spot in the American League, a fair judgement at this point is that they are exceeding expectations, although they need to get better hitting and relief pitching to be considered a contender to break their string of nineteen consecutive seasons outside the playoffs.

The Surprising Toronto Raptors

In Sports Illustrated’s preseason NBA basketball issue the Toronto Raptors were picked to finish in 8^th place in the Eastern Conference, the last playoff spot. By December 10^th even that modest prediction looked wildly optimistic. The Raptors were tenth in the Eastern Conference with 7 wins and 13 losses and had just traded their highest scorer, Rudy Gay, to the Sacramento Kings.

The conventional wisdom was that the Raptors management had given up on the 2013-14 season and were trying to have a bad enough record to make them competitive in the lottery for Kansas University’s freshman star, Andrew Wiggins, a Brampton, Ontario native who was expected to be the number one pick in the 2014 NBA draft.

As of the morning of January 9, 2014 things look very different. The Raptors have won 10 of their last 14 games and are in fourth place in the Eastern Conference with 17 wins and 17 losses, just one game behind the third-place Atlanta Hawks. If they were able to maintain that position, they would face the 5^th place team in the first round of the playoffs (currently the Washington Wizards) and would stand a good chance of moving on to the second round of the playoffs. The Raptors have not made the playoffs since 2007-2008 and have not won a playoff series since 2001-2002.

In the 14 games since December 10^th, with the exception of a loss to the seventh place Charlotte Bobcats, the Raptors have been defeated only by three of the four best teams in the NBA- the Indiana Pacers, the Miami Heat and the San Antonio Spurs. All of those losses were away from home. During the same period they have defeated the Pacers in Toronto and another top four team, the Oklahoma City Thunder, at Oklahoma City.

They are doing it with a young lineup of Kyle Lowry at point guard, Demar Derozan at shooting guard, Terence Ross at small forward, Amir Johnson at power forward and Jonas Valanciunas at centre. Solid contributions off the bench have come from forwards, Tyler Hansbrough and Patrick Patterson and guards Grevis Vasquez and John Salmons. Patterson, Vasquez and Salmons were all obtained in the trade which sent Gay to the Sacramento Kings.

The team is both more efficient on offense and much tougher on defence and has shown lots of second half grit, regularly outscoring their opponents in the last quarter and the last half of games since December 10th^th.

Can it last? Only time will tell. But for now long-suffering Raptor fans are seeing an entertaining and hard-working team which may well be heading for the playoffs.

Some thoughts on

The Recent Federal By-Elections

Recent federal by-elections in Bourassa, Toronto Centre, Brandon-Souris and Provencher brought good and bad news to the Harper Conservatives. The good news? They held their two seats in Manitoba and did not do as badly as some polls had predicted they would. The bad news? Almost everything else.

To begin, the Conservative share of the vote in these by-elections in all four constituencies was the lowest it has been since the constituencies were first contested on their current boundaries in 2004.

Second, the non-Conservative vote seems to be coalescing around the Liberals. In federal by-elections (in Calgary Centre, Durham and Victoria) just over a year ago, the Conservative share of the vote declined in all three constituencies but gains were fairly evenly split among the opposition parties. The Liberals and the Greens both significantly increased their vote share in Calgary Centre. The NDP share was up slightly in Durham, and the Greens substantially increased their share of the vote in Victoria, almost allowing the party to capture the seat from the NDP.

Shortly after the election of Justin Trudeau as Liberal party leader in April 2013, a by-election was held in Labrador. The Conservative share of the vote fell again by 7.4 percentage points. The Liberal share rose by 8.9 percentage points, and the share of both the Greens and the NDP fell slightly. This swing of 16.3 percentage points moved the seat from a narrow Conservative victory in the 2011 general election to a solid Liberal gain.

In the most recent by-elections, Liberal gains accounted for more than all of the Conservative losses in Bourassa and the two Manitoba constituencies. Again the NDP share of the vote fell sharply in Brandon-Souris and Provence and modestly in Bourassa. The Bloc Quebecois share of the vote also fell in Bourassa, and the Green share of the vote was little changed from 2011 in all four constituencies. The NDP share of the vote rose by 6.2 percentage points in Toronto Centre, but the Liberal share increased more, by 8.1 percentage points.

In short, over the past eight federal by-elections, there has been a consistent decline in the Conservative share of the vote indicating a “time for a change” feeling among the electorate in six provinces from Newfoundland and Labrador to British Columbia. However, while in the first three of these by-elections there was no consistent pattern in  which opposition party benefitted most from this anti-government trend, the last five by-elections show the Liberals as the clear choice of anti-Conservative voters, even to the point of drawing support from the other opposition parties, notably the NDP.

What would happen if this pattern persisted into the next federal election? If the swing in Provencher (where the Liberals did not do nearly as well as in Brandon-Souris) were applied uniformly across Manitoba, five of its 14 seats would go Liberal, compared to 1 in 2011.  The Conservatives would fall from 11 seats to 7. Even more startling, the Brandon-Souris swing would produce 10 Liberal seats in Manitoba, leaving the Conservatives with only 4 of their current 11, with the NDP losing both their current seats to the Liberals.  

The 2015 federal election is still many months away, and much can change in the intervening time. But for now, Liberal leads in national polls are confirmed at the ballot box even in what should be the safest of Conservative seats. Justin Trudeau may not have done much yet to earn this support. But voters’ reviving comfort with the Liberal brand and not being Stephen Harper seem to be enough to make him the clear beneficiary of the “time for a change” mood in Canadian politics. On the other hand, Conservatives have good reason to reassess the strength of Stephen Harper’s coat-tails.

This article has also been published in the November 18th edition of The Hill Times
A Comparative Assessment of the Harper Government’s Job-Creation Record

Since the January 2009 budget it has been difficult to watch Canadian television for more than two hours at a stretch without seeing a self-congratulatory ad for the Harper government’s Economic Action Plan emblazoned with the banner: “Jobs, Growth, Prosperity.” The implied message is that the current government has been far more successful than its Liberal predecessor in creating jobs.
But is that claim true? What are the facts? With the release of October jobs data by Statistics Canada on November 8th, evidence is now available on their job creation record for a period of 93 months since their election in January 2006. How does that record compare to job creation during the last 93 months of Liberal government under Jean Chretien and Paul Martin?
It is not a comparison to be boasting about. In the 93 months between April 1998 and January 2006 (after seasonal adjustment) the number of Canadians with jobs grew by 15.9% and the number with full-time jobs grew by 17.1%. In the 93 months from January 2006 to October 2013 (again after seasonal adjustment) the number of Canadians with jobs grew by 9.8% and the number with full-time jobs rose by 8.9%. That is, the pace of overall job creation has been 38% lower than under the Liberals and the pace of full-time job creation has been 48% lower.
But, the current government might respond, our time in office includes the 2008-09 recession while the last 93 months of Liberal government were recession-free. Aside from the admission that the Liberals were able to avoid recession while the Harper Conservatives were not, this argument implies that governments should bear no responsibility for the effects on employment of recessions which occur while they are in office. The Bennett government got no such free pass during the Great Depression, nor did the Trudeau or Mulroney governments during the recessions of the early 1980’s and the early 1990’s. Why should only the Harper government be accountability-free?
A more plausible excuse for their inferior job creation record might be the demographic argument that a higher share of Canadians is now over age 65 and no longer in the labour market than was the case under the Chretien and Martin governments. To test whether taking this into account makes a difference requires shifting the indicator examined from changes in levels of full-time and total employment to changes in the employment and full-time employment ratios excluding the population 65 and over.
But, if anything, these comparisons are even more unflattering for the Harper government. Between April 1998 and January 2006 the employment ratio rose by 3.5 percentage points from 68.8% to 72.3%. Between January 2006 and October 2013 it rose by only a tenth of a percentage point to 72.4%. The comparison of full-time employment ratios produces a similar result- an increase of 3.5 percentage points from 56.0% to 59.5% under the Liberals compared to no change under the Harper Conservatives.
For young Canadians the Harper government’s job creation record has been worse than feeble. It has been one of actual deterioration compared to a very positive record under the Chrétien-Martin Liberals. From April 1998 to January 2006 the employment ratio for Canadians aged 15-24 rose by 6.1 percentage points from 51.8% to 57.9 and the full-time employment ratio rose by 3.7 percentage points from 28.2% to 31.9%. (Many in this age group are full-time students for most of the year.)Since January 2006 the employment ratio for those 15-24 has declined 2.6 percentage points to 55.3% and the full-time employment ratio has fallen 3.0 percentage points to 28.9%. While the population aged 15-24 rose by 112,600 between January 2006 and October 2013 the number with a job fell by 47,400 and the number with a full-time job dropped by 95,200.
Given these facts, the Harper government should not be all that anxious for the political focus to move away from the Senate follies to their job-creation record. Using taxpayer dollars to buy advertising that makes the implicit false claim that they have been more effective than their Liberal predecessors in creating jobs may be more damaging to them than the much smaller sums Canadian taxpayers paid in the false housing expense claims of Senators Duffy and Wallin.

How do you solve a problem like the Senate?

For many Canadians the answer to the question posed would be a vehement, “Get rid of it!” Given the squalid revelations of the past few months of fraudulent expense claims, secret payments by the Prime Minister’s Office and lawyers by the Conservative Party to try and make that scandal go away, and pressure by the government on Conservative Senators to judge their accused colleagues before police investigations had been completed, this response by an angry public is understandable.
But is it the right response? The Right Honourable Joe Clark said something in a recent CBC radio interview that many Canadians don’t want to hear, but need to think about as the Supreme Court considers the constitutional implications of possible reforms to the Senate. I cannot recall his exact words, but they were along the following lines: “the fate of an institution such as the Canadian Senate, which has been part of our system of government since Confederation, should not be determined based on anger.”
As an institutional conservative, my natural inclination is not to get rid of institutions that have gone off the rails. I would much prefer to reform them so that they can regain public trust and respect by performing the essential functions for which they were created.
In the current climate this is not a fashionable admission, but I confess to a personal bias. Five of the people I most admire in Canadian public life- Catherine Callbeck, Eugene Forsey, my late uncle Richard Hatfield, Michael Kirby and Lowell Murray- all are or were Senators. I cannot help but believe it would be a great mistake to do away with an institution which has allowed them and many others of comparable ability, experience and dedication to public service the opportunity to contribute to the better governing of Canada. Incidentally, all were political appointees but accepted a responsibility to the public good which went beyond narrow partisanship.
The Senate website describes the duties of Canada’s Senate as “examining and revising legislation, investigating national issues and representing regional, provincial and minority interests.” So what should be done to reform the Senate so that it can credibly perform these essential functions? The first of these duties assigned to the Senate was memorably described by Canada’s first Prime Minister, Sir John A. Macdonald as being a place of “sober second thought.” The second has often made the Senate, or one of its committees, a place of “creative first thought” on issues as varied as poverty, science policy, foreign relations and national defence and the more efficient functioning of government departments. The third brings to Parliament the perspectives of groups which tend to be under-represented, if represented at all, in the popularly-elected House of Commons. These include or have included women, First Nations and minority official language and ethnic groups.
In addition to these three, the Senate has another role, identified by Clifford Sifton almost a century ago. Writing in 1917, he explained it as follows: “Under our system the power of the Cabinet tends to grow at the expense of the House of Commons…The Senate is not so much a check on the House of Commons as it is upon the Cabinet, and there can be no doubt that its influence in this respect is salutary.”
Today, as the power of the Prime Minister has grown at the expense of both the Cabinet and the House of Commons, this function has become increasingly important for the public interest. Recent years have witnessed omnibus legislation that bundles unrelated legislation into one bill to avoid proper consideration of each of its elements. In periods of majority government Prime Minister’s Offices subvert the independence of House of Commons committees by dictating their membership and agendas. It has become standard practice to use cloture and prorogation to shorten debate and restrict the ability of the House of Commons to hold the government accountable. Canadians can ill afford to lose an institution, such as the Senate, which has the potential and the mandate to check these corrupting tendencies.
The Senate can not only provide another forum for concerned groups and individuals to be heard on legislation. With a credible appointment process, Canadians can also trust it once again to do what it was created to do: to probe, challenge and propose revisions to the increasingly complex and far-reaching legislation sent to it from the House of Commons.
But, and here is the rub, it can only be trusted by the Canadian public to do this if, again in the words of Sir John A. Macdonald, it is and is seen to be “an independent House, having a free action of its own … a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill-considered legislation which may come from that body.” But, Macdonald went on, while it ought to have the power to see that legislation is properly considered, the Senate “will never set itself in opposition against the deliberate and understood wishes of the people” as expressed by the majority of the House of Commons.
Senate reform therefore must focus on making it a truly independent body while leaving ultimate legislative power in the hands of a House of Commons based on the principle of Representation by Population. The first requirement for restoring public trust in the Senate as an independent body serving the public interest is to take the power of appointment to the Senate out of the direct control of the Prime Minister.
Senators should no longer be directly appointed by those whom it is their responsibility to hold to account. Because Senate appointments are desirable sources of patronage, it is little wonder that over the years the prestige of the Senate has been undermined by the appointment of too many people who are there as a reward for past services to their party or in the expectation that they will perform services for the party in the future. The root of the current Senate expense scandal involving Senators Duffy and Wallin can be traced to the fact, not that they were Conservative partisans in the past, but that they became Senators to act as high profile fundraisers for the Conservative Party, paid of course by Canadian taxpayers.
In fairness, as I noted earlier, Prime Ministers of all party stripes have appointed many people of high ability, experience and dedication to the public service to the Senate. These include former provincial Premiers, senior federal and provincial public servants, leading academics, and eminent members of the legal, medical and other professions.
A practical suggestion for taking Senate appointments out of the control of the Prime Minister has been made by Professor Emeritus of Queen’s University, Ned Franks. He proposes that future Senate appointments be made from a list drawn up by a non-partisan body. One candidate for such a nominating council would be the members of the Order of Canada residing in the province or territory where the vacancy occurred. Such a body could only nominate persons whose normal residence was in that province or territory.
As part of this reform, while future Senators could continue to serve in Cabinet and could remain members of the political party of their choice, they should no longer attend meetings of parliamentary party caucuses, nor raise money for a political party except through personal donation.
Introducing a non-partisan element into the appointment of Senators should improve the odds that the people best suited to perform the essential functions of the Senate would be chosen to serve in it. And, unlike other proposals for Senate reform, because it would not require an amendment to the written constitution, it would not require the assent of the current Senate or of some combination or all of the provinces.
Gradually it should lead to a Chamber more respected and trusted by the Canadian people to perform the duties outlined earlier. Such a reformed Senate would also be an institution better able to resist pressure from party whips to delay legislation for partisan reasons or to allow its oversight and accountability roles to be subverted. In short, it should move closer to Macdonald’s vision of “an independent House, having a free action of its own… a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill-considered legislation which may come from that body.”

Reflections on last night’s World Series Game

The 2013 baseball playoffs have been among the most interesting in many years. Stellar pitching, timely hitting, great and awful fielding (often by the same team in the same game) and evenly matched teams in both league championships and in the World Series have kept fans like me on the edge of their seats or awake before their bedroom TVs. The dramatic finish to last night’s game with the St. Louis Cardinals scoring the winning run in the bottom of the ninth on an obstruction call – the first game to end on such a call in World Series history- added another compelling episode to the narrative.
Though I have been a fan of the Red Sox since listening to Curt Gowdy describe the exploits of Ted Williams, Jackie Jensen and Frank Malzone a young boy in the 1950’s on WAGM radio in Presque Isle, Maine, I have to admit that the third base umpire’s call of obstruction was correct. This is despite the fact that there was clearly no deliberate attempt to impede the runner. The crucial mistake was to try to get the third out by throwing out the runner at third after getting the second out at the plate on Pedroia’s brilliant play on the infield grounder. The Red Sox had their best reliever on the mound and the Cardinals’ best reliever was about to leave the game for a pinch hitter. Saltamacchia should have simply held the ball after recording the second out.
I can’t wait to see what happens tonight. My hope is that it involves better luck for and better judgement by the Red Sox fielders.

The first entry on this blog was a quotation from John Stuart Mill’s essay on Coleridge that “the besetting danger is not so much embracing falsehood for truth, as in mistaking a part of the truth for the whole.” The recent unsuccessful attempt by Congressional Republicans in the USA to overturn President Obama’s 2010 law to reform that country’s health care system (commonly known as Obamacare) by shutting down the federal government and threatening to refuse to raise the debt ceiling provides a classic illustration of Mill’s warning.
Republicans thought they would be supported by the American people in pursuing this radical strategy because they had correctly observed that polling since the passage of the 2010 legislation, by news organizations like CNN consistently showed that 7 to 24 percent more of the American people opposed Obamacare than supported it. That being the case, was it not logical to assume, in the words of freshman Republican Senator Ted Cruz of Texas that they were simply “listening to the American people” in adopting whatever measures were necessary to overturn this unpopular legislation that had been imposed by the Democrats.
Unfortunately for them, this justification for the Republican tactics made two assumptions that turned out not to be true. The first was that all opponents of Obamacare were as fanatical and intense in their opposition as Congressional Republicans. The second was that all opponents of Obamacare opposed it for the same reasons as they did. That is, they opposed it because they thought it was too interventionist, that it went too far in using government subsidies and regulations to encourage and coerce people into buying health insurance. But, in fact, a significant share of those who told pollsters they did not support Obamacare did not like it because they believed it did not go far enough in making health care coverage universal. These people were hardly likely to support shutting down the government or refusing to raise the debt ceiling in order to completely destroy legislation they felt was not liberal enough. Combined with those who supported Obamacare as it was they far outnumbered those who opposed Obamacare because they thought it was too interventionist. Going forward under the delusion that they represented a majority of the American people, Congressional Republicans in fact spoke for less than 40% of the electorate in opposing Obamacare because it was too liberal.
This combination of extreme radical tactics in support of a position whose substance was supported by a minority of voters was doomed to failure. The Congressional Republicans were forced by public opinion to re-open the government and defer refusing to raise the debt ceiling and got nothing in return. They paid a high political price for their folly. Ever since winning control of the House of Representatives in 2010 CNN polling had consistently showed that more voters thought it was “ good for the USA that Republicans controlled the House of Representatives” than thought it was a bad thing. In December 2012, just after re-electing President Obama, 51% of the American electorate thought it was a good thing that Republicans controlled the House compared to 43% who thought it was a bad thing. But after the debt ceiling showdown ended on October 17th , 54% thought it was a bad thing that the Republicans controlled the House compared to only 38% who thought it was a good thing.
The Congressional Republicans recognized the partial truth that more voters opposed Obamacare than supported it and persuaded themselves, against the empirical evidence, that that the whole truth was that they opposed it for the same reasons that they did. They ignored the crucial fact that a large share of that opposition thought Obamacare was not liberal enough and in mistaking part of the truth for the whole adopted a course that was to prove both ineffective and politically disastrous.