A political scientist and a historian step up

I have mixed feelings about Substack and how it commodified and monetized the old blogosphere.  But my inbox today had three Canadian Substacks I was glad to see.

The historian turned security analyst Wesley Wark has a powerful piece on something Mark Carney might achieve, or at least try to achieve, at the NATO conference in Ankara: pull Orange Hitler back toward the side of Ukraine. ("Ballistic Terror wesleywark@substack.com)  

Wark had another powerful post yesterday, about the barbaric Russian destruction of the Mariupol Theatre and all the unhoused people sheltering in it

And a little closer to home, Emmett Macfarlane fulminates against the stupid and self-defeating decision of the prime minister to make the Canadian Senate once more a patronage house.  

Carney’s record so far is revealing. He has abandoned climate policy, he is cutting important institutions and programs, from mental health and disease prevention to international aid to Library and Archives Canada, and he plays partisan institutional games with the best of them. The 2025 election was framed around Justin Trudeau’s unpopularity. Once Trudeau resigned, voters surged to Carney, not only because of the Trump threat but because they didn’t want Pierre Poilievre. It’s becoming increasingly clear, that in avoiding Poilievre, Canadian voters did not get a Economist Party PM. What they got was basically Oxford-educated Stephen Harper.

Our CEO prime minister, a millionaire who has spent his career among billionaires, thinks anything he does not know already is not worth knowing, and in the process demonstrates his blinkered ignorance of the needs and requirements of parliamentary government.  Take a stick to him, Macfarlane. 

Macfarlane notes he has some insider status here -- he advised the Trudeau government on the non-partisan Senate ideas. For the details see his book on the Senate, Constitutional Pariah.  Probably the only good book ever written about the Senate.

I have some, well, adjacent if not inside claims here.  It has been suggested that my 1867 and Three Weeks in Quebec City established the idea (later taken up by the Supreme Court of Canada, that the only thing the confederation makers required of the senate was that it be weak.  See this article for a summary.

Monarchy notes

I'm a bit irritated by a New York Times story, "One City Might Have Cracked the Housing Crisis," about a BC First Nation that is spearheading a large residential housing development in Vancouver's Kitsilano neighbourhood.  The theme seems to be that the one good thing about indigenous title is that it enables developers to thumb their nose at city-planning regulations.

I did laugh, however, where the reporter notes that NIMBY Vancouverites 

sent protest letters to Queen Elizabeth II. (In Canada, complaints about federal land are still addressed to the British sovereign.)

It is funny, I guess, that the New York Times promotes this medieval idea of how Canadian government works. But Canadian monarchists (and constitutional nerds, too often) often make much of the claim that there really is a Canadian monarchy and a king of Canada. Here's another proof that no one in the world takes them seriously. We shouldn't either. 

History of parliament: What would Robert Baldwin say

"Doug Ford fires PC Caucus Chair" says the Toronto Star headline,  

But why doesn't the PC caucus fire Doug Ford instead? You know they have the power.  Let the caucus fails to show up just once for a Ford government legislative bill, and the guy is toast -- that's their superpower, and the essence of parliamentary accountability. 

Meanwhile Althia Raj documents the bullying tendency of Prime Minister Carney, whose billionaire-CEO mindset is more deeply engrained than his parliamentary understandings as he deals with a caucus afraid to apply its authority to him.

“He yells,” said one MP who, like others, spoke on condition of anonymity to avoid retribution from the Prime Minister’s Office. “He punches down at caucus all the time.”

But the bit of the TorStar file on parliamentary ignorance that really sticks is one from Christopher Hume.  Hume is an architecture critic and a friend of cities, but on parliament and the constitution, he's as deluded as, well, as everyone else in this amnesiac political culture of ours.

Because Canada’s bizarrely conceived constitution reduces cities to mere creatures of the provinces, the premier can interfere to his heart’s content.” (Toronto Star, May 30, 2026.)

Actually the constitution doesn't. That phrase about cities as creatures is not in the constitution at all.  It's from a Supreme Court of Canada opinion of 1993. It's a legal fiction. The BNA Act, which is more democratic than most of us today, gives the provinces the responsibility to create municipal governments. It was the SCC's ignorance of constitutional history that gave them the right to tyrannize the cities.  

It's bedrock in Canada's constitutional history: once you create a level of government accountable to voters and authorized to tax and spend on their behalf, then you are stealing their money when you meddle in its affairs. That was how Canada became self-governing in the 1840s. It was the basis on which Macdonald's misuse of disallowance powers against the provinces was struck down. Far from authorizing provincial bullying of civic governments, the Canadian constitution rejects it as defiance of the principles of parliamentary democracy. The SCC will figure this out when friends of cities who figure it out start publicizing the idea.

Jeez, Robert Baldwin understood the principle  of municipal self-government a couple of decades before Confederation. This is the historian Michael S. Cross describing Baldwin's Municipal Act of 1849:

For Baldwin it was a rational division of power that required municipalities to accept responsibility for their own progress…. A measure of local autonomy gave elected township councils unlimited taxing and debt authority.  (Cross, Robert Baldwin, p.283.)

Some years later, as co-premier of the United Canadas, Baldwin retired from parliament and from politics the moment he lost the support of his parliamentary caucus. His caucus would not have tolerated any other choice. 

Baldwin could tell Mark Carney a thing or two about accountability.  He could tell Doug Ford too, but Ford would not have a clue.

Danielle Smith on constitutional history

At The Tyee, David Climenhaga expresses astonishment at Premier Danielle Smith's bizarre understanding of constitutional history

Ms. Smith said, “Canada is very different from the United States and many other Western democracies. For example, the U.S. centralizes the majority of power and decision-making in its federal government. In Canada, we chose a decentralized federation composed of very unique and diverse provinces left to govern themselves in almost all matters with the main exceptions of national defence and international affairs.”

This is the polar opposite of the facts. She either missed the lecture on the Constitution during her years at the University of Calgary or someone was guilty of educational malpractice!

For sure it's hard to look at the constitution and conclude that the federal government's role is limited to defence and foreign affairs.  But section 92 did indeed provide the provinces with a broad array of powers, and Ontario Premier Oliver Mowat soon established that the provinces were indeed sovereign in all those matters allocated to them.  

A sovereign Alberta within a united Canada -- Ms Smith's professed desire -- has been on hand since 1905, or at least from the 1930s.  She's the one who wants to move in on a vast array of powers always held by the federal government.  

Despite all the efforts of John A Macdonald, Canada did indeed began -- and continues -- as a notably decentralized federation, with education, health care, housing, and yes, natural resources confirmed to lie within the powers of the provinces. If only they were more willing to use the powers they have wisely, and not blame Ottawa for all their failings.    

Book Notes: Macfarlane and Puddister on lawyers and political scientists; Boyko on Sandford Fleming

I

At Substack, the political scientist Emmett Macfarlane reports on his new edited collection with Kate Puddister, Disciplinary Divides In The Study of Law And Politics, on the subject of how differently lawyers and political scientists look at questions of law and politics and the constitution and federalism and the Charter and all that. It's a set of academic essays by law profs and polisci profs who work on the contested territory between them.

Having written a bit about both constitutional politics and legal history, I'm tempted to read in it. I can certainly believe in the difference in perspectives. I'd be even more interested in a book about how differently historians and political scientists think about these things.  Or about how differently historians and lawyers do.  

I suspect too few historians care about such theoretical matters to engage the way the political scientists and the law profs actually do. Come to think of it, there are not that many who even engage with, say, confederation any more.

But I do sometimes reflect that a lot of political scientists say "in the time of Jean Chretien" (or the older ones "the time of Pierre Trudeau") to mean what other people mean when they say "in the mists of antiquity." A historical sense does not always seem to be a prerequisite.

II

John Boyko is launching a new biography of Sandford Fleming, In Pursuit of Tomorrow. I recall a previous Fleming biography, Time Lord by the Canadian-American novelist Clarke Blaise, an original and idiosyncratic appreciation.  It was very much focussed on Fleming's role in establishing global time zones and, beyond, on the very nature of time and how it was changing in the 19th century. I remember liking it quite a lot.

I have not yet read Boyko's but it is clear this seeks to be a complete and straightforward biography of the man and all his diverse accomplishments (and some failures too, maybe).  More comments may follow, as Sutherland House publishers has kindly send me a copy to peruse.

Book Notes: Jill Lepore on constitutional amendments.

 "It is intended to be amended," is the epigraph that starts Jill Lepore's We The People, a history of the U.S. constitution .  She actually takes the quoted line from a Bugs Bunny cartoon, but it is no joke. 

She means it absolutely seriously, and much of the argument of her book is how the eighteenth century aspirations of the American constitution has hardened into stone, into bone, and how it has in recent decades become pretty much unamendable.

Now the US constitution is well over 200 years old, and showing its age. Many of its fundamentals  -- the Electoral College, the Senate -- were intended to prevent and negate popular (and even representative) government, and have succeeded very well even as popular sovereignty -- "We the People" -- has become the nearly universal expectation. How does the United States move forward when so much amendment is needed and so little is possible?

In general, the mid-nineteenth Canadian constitution is much more flexible and much less in need of fundamental amendment, in my opinion, but the problem is there.  The Canadian amending formula is not yet fifty, but our constitution is also pretty much unamendable. Who in Canada is writing a big popular book about that? 

History of Governors General

I hope Louise Arbour will be an ornament to the office of Governor General. She is almost eighty, but like a lot of senior judges she seems to retain limitless energy -- enough, I hope, to carry her through a full term of office. Her distinguished public service and her globally recognized achievements in human rights and justice make her a symbol of Canadian respect for the rule of law in these times. It's an excellent appointment.  

Upon her appointment, Mme Arbour declined to call herself a monarchist, and went on to offer her preferred choice of words for her new role: 

I will be the representative of the crown in a constitutional arrangement that I think has served Canada extremely well.

That seems excellently phrased. To my ear, it acknowledges an actual monarch is superfluous to a parliamentary democracy -- as is indeed the case in most of the world's parliamentary democracies, from Ireland to India to Germany. 

Describing herself as "the representative of the crown in a constitutional arrangement," Mme Arbour nicely suggests we hardly need a foreign king and the royal family and all those trappings in our egalitarian society. A distinguished Canadian represents the state, and our politics are handled democratically through our elective institutions. What's not to like?

At his Substack, constitutional scholar Philippe Lagassé, an advocate of monarchy, calls Arbour's statement 

fairly pro-Crown when measured against contemporary Canadian attitudes toward the monarchy. It may not be sufficient for the decorative plates crowd, but it's sufficient for those who emphasize the constitutional in constitutional monarchy.

 I can agree with that. 

Meanwhile, Parti Quebecois leader Paul St-Pierre Plamondon, he of the slightly aristocratic name and the democratic politics, said, "Regarding the institution, I repeat that it is one of the worst wastes of public funds."

It's not in any sense a waste of public funds to support the office of Governor General in the role Louise Arbour explains so diplomatically!  But I agree with him when he goes on to say: 

We are still in an archaic system where the king of England has anything to say in our democracy.

John Fraser approves, too   My notes on his recent book on the GGs here

Worth Reading: Jean-François Nadeau on secularism

On his Substack, Paul Wells reprints in translation Jean-François Nadeau's recent column on Quebec's secularism law, currently at the Supreme Court of Canada, now leading to hundreds of firings, all Muslims, all women, mostly in child care centres:

We show the door to women who have broken no law, harmed no one, and failed in no professional duty. Their veil becomes a pretext for fantasies and suspicions, in contempt of the essential work they perform every day for children.

In a school system already grappling with challenges like dropout rates, overcrowded classrooms, special needs, and lack of resources, was it really so urgent this spring to fire appreciated, qualified, well-integrated women? Is this truly how the injustices within this leaking-from-every-seam education system will be corrected?

History of voting, of accountability, of the conventions of the parliamentary system

This op-ed about electoral corruption in Alberta, by Rachel Notley, former NDP premier of Alberta, is worth reading (gift link) and very discouraging too. 

...the UCP proposed a plan for Trump-style gerrymandering. They rejected the independent boundaries commission report, silencing the voices of the thousands of Albertans who participated in a fair, transparent and democratic process. Instead, an advisory panel will propose a new electoral map for Alberta, overseen by a committee of politicians dominated by UCP members. They will not be required to consult with the public. It seems likely that the final say on the map will rest with the politicians.

Blatant corruption of the electoral process is troubling enough. What's worse is the sense that this kind of majoritarian autocracy is gaining ground across Canada. 

Today political parties are almost entirely run by professional managers and strategists instead of elected caucuses  and volunteer members. The faith that there are conventions of appropriate behaviour in politics is becoming harder and harder to maintain. Governance really is all about winning and getting one's way, and not only in Alberta. (Compare: Quebec, and examples don't lack in Ontario, either.) Political processes where customary behaviour is expected but not protected are widely endangered.  

It has long been shocking how deeply electoral gerrymandering has been routine and normal for both parties in American politics. Though the Democratic Party has long been prepared to ban the practice, the Republican Party defends it to the last ditch.  So it becomes more extreme  and more accepted --even necessary -- with each electoral cycle. 

(Add to that the constitutional gerrymanders of American Senate representation, the Electoral College, etc. US electoral problems do not start or end with the Trump regime.)

In Canada, the profoundly corrupt wartime election of 1917 persuaded even the winner of that election to support the Dominion Elections Act, which led to the establishment of the independent Chief Electoral Officer for Canada. Partisan influences in election processes, and eventually in constituency boundary-setting, were gradually replaced. 

Details of how electoral processes were gradually corruption-proofed -- and then corrupted again -- in the provinces are less well documented. But some provinces are demonstrating how easily independent commissions are easily bypassed by majoritarian interference of the kind Rachel Notley exposes in the article cited above.

Unlike the United States, we do have courts in Canada that will consider ruling against electoral corruption.  A 1991 Supreme Court of Canada decision sets out "effective representation" rights that courts can enforce.  Quebec has already run up against these, and Alberta now seems likely to. In both those provinces, setbacks in the courts tend to lead to "notwithstanding" legislation and/or separatist agitation.  

Judicial review is something. But look how easy it is to corrupt the process for appointing judges!   

George Brown on talking to Americans

Previously posted on this site in 2018, but some things never get old. This is newspaperman and statesman of confederation George Brown on talking to Americans... in 1852: 

...when you get hold of a Yankee, drive it home to him; tell him his country is disgraced; wound his pride; tell him his pure institutions are a grand sham; send him home thoroughly ashamed of the black blot on his country's escutcheon. In steamboat, or railroad, or wherever you are, hunt up a Yankee and speak to him faithfully; there is no other man so sensitive as to what others think of him.

H/T Russ Chamberlayne, who first drew this to my attention.

History of judges

One of the brilliant things about the Canadian constitution is how it structured the administration of justice.  

The (deeply flawed) American constitution created state courts for state law and federal courts for federal law, with separate personnel and separate administrative responsibilities for each.  The Constitution of Canada, by contrast, understands justice to be indivisible, while administration need not be.  

So each province has its own courts, built, administered, and paid for by the province, and with judges who must come from the legal profession of that province.  But those judges have always been empowered to adjudicate federal law as well as provincial law -- they have a national role, in everything from criminal law to constitutional law. 

Given the federal (as well as local) law they must adjudicate, it is appropriate that judges wherever they sit be federally mandated, chosen and paid for by the federal government. While property law (for instance) is provincially made and criminal law (for instance) is federally made, the one court system and the one hierarchy of courts and judges handle both from first instance to final appeal. We have one seamless justice system rather than two.

Having a provincially-run justice system with federally appointed judges should be understood as evidence of the skill with which the original constitution-drafters designed our federal system.

Then there is Premier Danielle Smith of Alberta. She recently demanded that she be empowered to participate with the feds in the choosing of judges.  She threatened that if she cannot, she might withhold provincial funding for new judicial appointments.  (She also recently demanded more power to "direct" the judgments Alberta judges make.) 

But the judges she is talking about are paid from appointment to retirement by the federal government.  All she could withhold is the provision of courthouses and office spaces and staff for them.

Frankly, she is already doing that. In Alberta, as in most of the provinces, courts are generally overcrowded and understaffed.  So it's an inconvenience to Albertans, but not much of a threat, maybe reflecting a misunderstanding of where judicial salaries come from.

 Oliver Mowat, the 19th century premier of Ontario, created several new courts in Ontario during his time in office, happily allowing the federal government to pay for all the new judges. "It would of course be highly improper to ask the appointment of a greater number than the actual necessities of the country required," he said, with a devious little smile, perhaps.  

But I don't think we have had yet a federal-provincial crisis over the provinces creating too many courts.

Historiographical note:  many historians of confederation seem to have been a bit baffled by the provincial/federal mix of judicial matters. Often they have fallen back on the theory that the feds wanted the appointing power simply for the patronage powers it offered.  The wisdom of provincially administered local courts adjudicating both provincial and federal law, in a single justice system with federally appointed judges is rarely noted in the standard accounts of confederation.

Appendix:  At confederation, provinces did retained the authority to appoint and pay judges for the "lowest" courts, the ones that adjudicated minor aspects of law, whose judges at that time were not even legally trained but mostly lay magistrates. 

The scope of these courts with provincially-appointed (and paid) judges has expanded mightily since the mid-twentieth century. But it is still the federally appointed judges that handle the more serious matters, including all trials by jury, and the decisions of provincially-appointed judges can of course be appealed to the "higher" courts with federally-named (and paid) judges, right to the Supreme Court of Canada if necessary.

Ged Martin explains the American pardoning power

Ged Martin, the British scholar of (mostly) Commonwealth histories, diverges a moment from his usual range of topics to provide a very detailed history of the emergence of the pardon power, now being used for malign purposes by Orange Hitler. 

It's far more detailed than any such explanation I have seen in American media.  It may also be more than you actually want to read on the subject.  But it will reinforce in you the assumption that Ged Martin seems to know a great deal about practically everything. 

Book Notes: History of Adultery and the Canadian Senate

Some of you Canadianists may be aware that in 19th century Canada, the usual way to get a divorce was to go to the Senate of Canada and ask it to become a divorce court. But how did that happen? How did it work? Maybe it's another of those constitutional history details that make historians say "It's too picky and complicated, let's just handwave and skip across it."

Now historian and law prof Jim Phillips has put a catchy title on the whole thing. In I Did Not Commit Adultery, he's found a way to sort out the workings of the law of marital conflict through a deep dive into the unhappy marriage of Robert and Eliza Campbell, whose wrangles kept the courts and the Senate busy -- and the neighbours in Whitby, Ontario, talking -- for years and years.

I just received my copy and may have more to say about it when I have actually read it. Members of the Osgoode Society for Canadian Legal History can restart Campbell family gossip and celebrate my friend Jim and its other 2025 authors when it launches its new books next Monday.

Like French press coffee, our idea is filtering through. Slowwwwwly.

 

In this brief YouTube (above), Ottawa journalist Dale Smith goes in wholeheartedly on why MPs (and MLA, MMPs and the others in the provinces) have and always have had the right and the power to remove a party leader, even one picked by a mass party vote (particularly one picked by zombie voters with last-minute memberships supplied).  He doesn't emphasize the MPs' parallel (and equally vital) right to choose the fired leader's replacement. But that will come.  

Here's examples of me making the case from, yeesh, the 1990s on. And in 1867: How the Fathers Made a Deal, too, of course.  And this blog, passim.  

The idea remains well outside the Overton window however.  The standard understanding of political scientists and journalists was on show recently at Paul Wells's Substack, where Alex Marland discusses his theories of why party discipline is so strong in Canadian politics and never gets around to the leadership selection/deselection process.

History of Provincial Constitutions

Quebec Justice Minister Barrette on a new constitution.
Image from Paul Wells's Substack

A couple of weeks ago, the journalist and commentator Paul Wells posted to his Substack an essay prompted by the Quebec provincial government's announcement that it would establish a written constitution for Quebec.

While noting that the constitutional proposal was condemned by every other political party in Quebec, and is mostly an attempt by the deeply unpopular CAQ government of Francois Legault to change the conversation away from all the ones it is in trouble over, Wells confesses: 

I’m a little surprised to discover I kind of like this provincial constitution, or at least the idea of one.

The idea he likes is the ideas that provinces should have constitutions.  

The Canadian provinces do have constitutions, in fact, and Wells acknowledges that they do.  But he suggests that on matters of governance the gist of the Canadian constitution is the offhand phrase that it shall be "similar in principle to that of the United Kingdom," Provinces, he seems to mean, are entitled to a more formally laid out organic text.

I think there is a profound misunderstanding there, one Wells shares with too many constitutional experts.  The "similar in principle" phrase is just a summary in the preamble. The fundamental rules for the workings of Canadian parliamentary government are actually succinctly (and brilliantly) written down in Sections 53, 54, and 55 (and elsewhere) in the Constitutional Act, 1867.  They apply to provinces as well as to the federal government. And there is a whole section, Number Five, on details of provincial constitutions.  

The Constitutional Act also lays out that the provinces are free to amend their own constitutions -- thereby recognizing and accepting initiatives like Quebec's current one. It was plain in the 1867 constitution but is now among the 1982 amendments as Section 45: any province "may exclusively make laws amending the constitution of the province." 

Section 45 has often been used. As early as 1867, Ontario's representatives decided their province would come into Confederation without an upper house -- and all the other provinces eventually followed its lead and amended their own constitutions to abolish the ones they had.

But there is a condition. Section 45 is subject to Section 41: only the feds can make amendments relative to the Lieutenant-Governor of the province. And despite their general day-to-day irrelevance, the lieutenant governors are key to the parliamentary principles under which provinces operate, and to the federal-provincial hierarchy.  

Wouldn't you know, Premier Legault's proposed constitutional amendments for a Quebec constitution aim directly at ... the office of the lieutenant governor. That dog ain't gonna run far.  (The Parti Quebecois, knowing this, wants no Quebec constitution other than that of an independent and sovereign state)

Wells reminds us that only one province has written a set of amendments amounting to a provincial constitution: British Columbia.  I think I'll take that one up in another post sometime.  But read Paul Wells (link above) if you see the interest in all this.

 

History of the monarchy in Yukon

No king in Dawson City

Recently, the world had a little giggle over the oddity that is the "Canadian" monarchy from this story. (It seemed to get rather less coverage in Canada, judging by search links.)  This is The Guardian's lead on the story:

The council of a town in Canada’s Yukon territory has been locked for weeks in bureaucratic standstill after its members refused to swear a mandatory oath of allegiance to King Charles ....

I'm all in favour of Canadians declining to swear allegiance to foreign monarchs and I do support using Canada's constitutional power to rid itself of the whole thing. But I'm less keen on the reason why the Dawson City councillors have taken this stand at this time. They are doing it: 

citing the crown’s tarnished relations with Indigenous peoples in the region.

I can understand councillors' wish to stand in solidarity with the one indigenous member of the council, who first raised this concern. They mean well, no doubt.

But, you know, for more than a century and a half, deep back into Queen Victoria's reign at least, kings and queens have been purely figureheads in Canadian governance. All that has been done to indigenous peoples and their rights and titles was done by Canadian governments and officials accountable to Canadian parliaments themselves accountable to Canadian voters.  

I'm not enthusiastic for this effort to blame Canada's own failings on oblivious and disempowered foreigners long since (and quite properly) stripped of any real policy-making ability.  Let's stop swearing allegiance to Charles for good reasons, and take responsibility for our own problems at the same time.  In Canada the "Crown" is really us. The Dawsonians and all of us should swear allegiance to us.

History of Aotearoa

Protests at the New Zealand parliament.

Do you follow political news from New Zealand or, as it is also called, Aotearoa?  Following is actually tricky -- New Zealand has absorbed so many Maori words and phrases into daily life ("haka" being perhaps the most famous) that you need some kind of fGoogle Translate to understand almost anything. Here, from Wikipedia, is an example, part of a recent Ministry of Justice statement:  

The Bill "does not accurately reflect Article 2, which affirms the continuing exercise of tino rangatiratanga. Restricting the rights of hapū and iwi to those specified in legislation, or agreement with the Crown, implies that tino rangatiratanga is derived from kāwanatanga."

Okay.  But the message is clear: indigenous issues are live issues in New Zealand, as in Canada. 

There is a treaty process in New Zealand as in Canada, with the 1840 Treaty of Waitangi there more-or-less standing in for all the myriad Numbered Treaties, Peace and Friendship Treaties, and other agreements here in Canada. For a long time the Maori have had a pretty good run in asserting that Waitangi guarantees them both a substantial measure of self-government, and influence upon Crown governance of New Zealand as well.

Now there is a bill under debate in the New Zealand parliament, The Treaty Principles Bill (Wikipedia summary here). It declares that the Government of New Zealand rules all New Zealanders, and all New Zealanders are equal. This is widely understood to mean: "Forget Waitangi. The majority rules, and equality means we pakeha [that's white people, even I know that one] can do what we want." The bill is very controversial in New Zealand, with disruptions inside the legislature and tens of thousands marching in the streets outside.

The bill got majority support at first reading in the legislature the other day. But oddly (to a Canadian observer) its introduction and only real support comes from a party with only eleven of the 120 seats in Parliament. The prime minister says he actually opposes the bill entirely, supports Maori rights, and will eventually have his party change its vote to side with the opposition to prevent the bill from coming law.  But until then, he's voting for the bill, because those eleven votes keep him in power. It may also be that the governing party finds passage of the bill politically risky, but is glad to have its junior partner raising doubts about -- and stirring up tensions over -- indigenous rights.  (See this recent New York Times analysis). 

A recent AP story in the Toronto Star brushed all this away by reference to "a quirk in New Zealand's political system that allows tiny parties to negotiate outsized influence for their agendas.

The "quirk" is proportional representation, specifically the MMP variant that is used in New Zealand. 

New Zealanders' votes mostly split between a left wing party (Labour) and a rightwing  party (National). All New Zealand prime ministers have come from one or other. But since MMP was adopted in the 1990s, there have always been minor parties led by populist cranks or celebrities. (Imagine a Rob Ford Party, or a Don Cherry Party, or perhaps a Drake Party in Canadian politics.) One small-party leader in New Zealand, Winston Peters, has held the balance of power often enough that he has been Deputy Prime Minister in both Labour and National governments. It's not that his beliefs shift wildly from right to left, just that he likes being deputy prime minister -- for the title and the perks of office, it would seem, not policy.

Right now the minority splinter propping up the government is ACT.  It initially demanded  a binding referendum that could impose something like the Treaty Principles Bill upon the nation. Now it has apparently settled for this phony and temporary support from the prime minister --- but in exchange it has gained tremendous publicity for anti-Maori views and for the idea that indigenous treaty rights can simply be voted away when a voting majority is prepared to do so. No doubt ACT calculates publicity surrounding the Bill's failure will help polarize opinions within the electorate and perhaps boost its electoral support next time.

I think (I'm not sure) that a supporter of proportional representation would say this is okay, this is normal, this is how proportional representation is supposed to work. PR theory does suggest that if some people want to support small parties with unpopular and perhaps hateful views that cannot win in constituency elections, those parties ought to have representation in proportion to their cumulative vote -- and maybe even "outsized influence" in parliament.

Apply all this to the NDP or the Bloc in our non-PR parliament as you will.  

History of the Senate from Emmett Macfarlane

On his Substack, political scientist Emmett Macfarlane offers much good sense on the Senate (as he has done before) and confrontation  being set up between a Poilievre government and a Senate full of independent senators -- who owe their seats to Justin Trudeau's new appointment process.  Macfarlane's book Constitutional Pariah is the best book available on the Senate: my notes on it are here.

Andrew Coyne, meanwhile, suggests the Charter of Rights and the notwithstanding clause may be the prime minister's last best shot as an election issue..

History of leaders and parliaments

The Supreme Court of Canada recently held that Premier Doug Ford is entitled to keep secret the "mandate letters" he issues to his cabinet at the start of a new legislature.  I don't think I have strong views on this matter.  But political scientist Emmett Macfarlane does -- he has "reservations" about the SCC decision. 

"I have reservations" is the polite way legal people say judges are WRONG. I find I have reservations about Macfarlane's position on all this.

He points out that Justice Karakatsanis, who wrote the (unanimous) decision for the Court, reaches the conclusion:

that “the Premier’s deliberations cannot be artificially segmented from those of Cabinet. … the Letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet”

.. and therefore they may become part of Cabinet's decision-making process and have some claim to confidentiality. I would have said the idea that the premier is part of Cabinet and not above it or immune to its views was close to being bedrock parliamentarianism. If a premier is CEO, and cabinet members and caucus members simply there to do his bidding, it follows that the government is absolutely unaccountable to anyone between elections.  Now obviously we have a situation approaching that in Canada, but one hopes that the Supreme Court would not declare it to be constitutionally necessary.

Macfarlane does just that, however:   

It is the Premier’s Office that sets the policy agenda....

He describes, approvingly, a situation where "staffers in the PMO/Premier's offices bring their bosses a public opinion poll and they [i.e., the premier] say “okay, we’re not doing that anymore, don’t worry, I’ll tell the cabinet next week.”  This, presumably, is what parliamentary government comes down to.

God knows, that sort of thing must happen in Canadian cabinets. But it's depressing that a leading political science professor argues cabinets, let alone caucuses, are entirely without power or agency -- or even the authority to debate policy, and that such is the right way and the real way, and it's high time the courts gave it their sanction.

In any real parliament, mandate letters would come from the caucus to the premier/prime minister and cabinet: "you hold office as long as we support you in office, and here is what we expect from you during that time." I see from the back pages of this blog I've suggested this before.  

History of Politicians and Judges: the Emergencies Act ruling

I've long been under the impression that the Supreme Court of Canada, while bold in constitutional interpretation ever since patriation in the 1980s, has generally been cautious about substituting "what it would have done" in place of the policy decisions made by elected politicians holding governing responsibilities -- even if those boundary lines are sometimes hard to define.

This quick analysis by political scientist Emmett Macfarlane  -- entitled "A Dubious Judgment on the Emergencies Act" -- argues that Justice Richard Mosley of the Federal Court has been a good deal less restrained in his judgment on the Emergencies Act case.

Because the decision primarily concerned the decision to invoke the EA (rather than the constitutionality of any provisions of the EA itself), the Court’s job was to assess the reasonableness of the decision “with deference owed to the decision maker and its specialized expertise” (para. 202). The judge, however, ends up not so much reviewing the reasonableness of the decision in light of the circumstances facing the government so much as undertaking a total reappraisal, with the judge substituting his judgment for that of the government’s, with little to no deference to be found.  [italics added]

It's well worth reading. Not my field of expertise, but it sounds like the Supreme Court may find grounds to weigh in on this case. (Though there is a Federal Court of Appeal between Mosley and the Supreme Court.)