Author Archives: Clayton

Andrew Coyne on Post-Employment Conflict of Interest Restrictions

Andrew Coyne with a sarcastic take on “a chorus of voices” that are criticizing the post-employment provisions of the Conflict of Interest Act (Canada): http://news.nationalpost.com/full-comment/andrew-coyne-listen-theres-nothing-we-couldnt-fix-in-this-country-if-we-only-had-looser-lobbying-rules

I take some issue with his description of lawyering (and journalism) as weaselly; I certainly don’t think that applies to the kind of law I practice, and weaselly is more of a personality trait that can apply to someone in any career. But this piece is meant to provoke a chuckle so we lawyers shouldn’t take it personally!

“Rex Murphy: The Liberal government does not have the right to unilaterally change our voting system”

Rex Murphy opined in the National Post yesterday on the process of how the electoral system should be changed in Canada: http://news.nationalpost.com/full-comment/rex-murphy-the-liberal-government-does-not-have-the-right-to-unilaterally-change-our-voting-system

Murphy states that the Government does not have the “right” to change Canada’s voting system without first holding a referendum, but that is not correct. Everyone may have an opinion on whether a Government has the moral authority to change the electoral system, and there may indeed be some changes to the system that the Government does not have the right to do (e.g. those that violate section 3 of the Charter or involve amendments to the Constitution).

But despite Murphy’s objections to the Government proceeding unilaterally on electoral reform, it is indeed possible for them to do so. I for one don’t expect a nation-wide referendum on electoral reform any time soon.

6 Judicial Recounts, No Change in MPs

6 judicial recounts following the federal election have resulted in slightly different vote totals, but no changes in who was elected.

The judicial recount in Regina–Lewvan was terminated after the request for a recount was withdrawn.

Here are the changes in the plurality of votes in the other five recounts:

  • Barrie–Springwater–Oro-Medonte – from 108 to 86 votes
  • Hochelaga – from 541 to 500 votes
  • Desnethé–Missinippi–Rivière Churchill – from 71 to 82 votes
  • Montmagny–L’Islet–Kamouraska–Rivière-du-Loup – from 269 to 272 votes
  • Edmonton Mill Woods – from 79 to 92 votes

“From attack to apology in a split second; the NDP fundraising uproar”

Don Braid writes in the Calgary Herald about a fundraising ethics mess that the Alberta NDP created for themselves by coming up with a fundraising plan that involves selling tickets to “Join Premier Rachel Notley, cabinet, and MLAs for the evening to discuss issues facing the province that are important to you.” – http://calgaryherald.com/opinion/columnists/braid-from-attack-to-apology-in-a-split-second-the-ndp-fundraising-uproar

These fundraisers illustrate the very fine line that divides naked, pay-to-play corruption schemes and legitimate political fundraisers where MLAs are in attendance.

It is very difficult for a party in power to claim that selling access to their MLAs who are in cabinet should not be viewed as selling access to government. It is also difficult to avoid the perception that those who have $250 to spend will have their views heard by the government, while those without the $250 will not.

What do you think of the Ethics Commissioner’s take on this fundraiser? Does it really matter, as the ethics commissioner has advised, that the advertisement for the fundraiser took out the positions of the NDP MLAs who would be attending? Does anyone not know that Rachel Notley is not only an MLA, but also the Premier? How does that change to the advertisement make any practical difference?

Governing parties must be very aware of the perception that these types of fundraisers create, and question whether the financial benefit is worth the perception of corruption, which while may be proven, is impossible to disprove.

There’s a Laundry List of Problems with Canadian Elections, but Advanced Voting Isn’t One of Them

On the Globe and Mail website today Lysiane Gagnon wrote an opinion piece setting out with painful simplicity the antiquated, self-promoting and sanctimonious arguments of those such as herself who are against advanced voting. For those still interested, you can read it here: http://www.theglobeandmail.com/globe-debate/the-risks-of-voting-in-advance-polls/article27081030/

The main thrust of her opinion is that people who vote in advanced polls are less informed than those who vote on polling day. She leaps to this conclusion by citing some hypothetical situations, and then some actual “dramatic events” from the 2015 campaign that were in reality some of the most uninteresting, stereotypical and predicable bits of news that anyone could have possibly concocted to happen to the Liberals and NDP.

The most offensive part of this opinion is the moralizing about how voting on polling day is superior to voting in an advance poll. People who vote at advance polls (myself included) are not trivializing the vote. On the contrary, I would challenge Ms. Gagnon that people who vote in advanced polls are likely to be more informed than those who wait until polling day. People who make their minds up a week before polling day probably have been paying attention to what the parties and their leaders have been saying and doing over the many weeks and months of official and unofficial campaigning. They are probably more in tune to the substance and detail of the record of what the parties and their leaders have done, and less focused on the desperate promises and polished sound bites that fill up the last week of our system of seemingly endless campaigning.

With all the problems facing Canadian democracy (minimal choice on the ballot, huge distortions from the principles of representation by population and proportionality, near complete dominance by party elites), it is nonsensical to blame voters for trivializing democracy in our country. Looking at the big picture of Canadian democracy and what needs to be fixed, its Ms. Gagnon’s opinion on this subject that I find particularly trivial.

Ms. Gagnon suggests moving advance voting to the weekend immediately preceding polling day. To which I say, why not try having advance voting available for both? That may be trivializing in her opinion, but if it gets more people out to vote, it seems like a good investment to me.

“Green Party quietly paid MP and deputy leader Bruce Hyer a ‘stipend’ on top of $167K Commons salary”

Glen McGregor reports today in the National Post about payments made by the Green Party  to a former NDP MP who became Green deputy leader on top of his House of Commons salary: http://news.nationalpost.com/news/canada/green-party-quietly-paid-mp-and-deputy-leader-bruce-hyer-a-stipend-on-top-of-167k-commons-salary

According to Bruce Hyer the payments were for extra responsibilities he did for the Green Party.

The Green Party has not publicly disclosed how much it paid Mr. Hyer for these services and its spokesman has claimed the amount is private information.

This misses the mark in my opinion. The Green Party, like all other political parties, receive significant subsidies from taxpayers in a number of ways. If they are taking public money, its a bit much for them to claim what they do with it is private, especially if it involves topping up the significant remuneration of an MP, who shouldn’t have time on top of his job as an MP to do anything else.

Number of Recounts for Federal Election Increases to 4

2 more recounts announced today and yesterday raise the total number of recounts underway after the federal election to 4.

A recount in the electoral district of Regina–Lewvan will begin on October 29th in the Saskatchewan Court of Queen’s Bench. It will begin on October 29, 2015.

Another recount will also begin in  the Superior Court in the District of Montmagny on October 29th in the electoral district of Montmagny–L’Islet–Kamouraska–Rivière-du-Loup.

Elections Canada Announces another Recount

Elections Canada today announced that there will be a second judicial recount for the 2015 federal election, this one in the electoral district of Barrie–Springwater–Oro-Medonte.

This follows the announcement of a recount in Edmonton Mill Woods.

This time in Barrie–Springwater–Oro-Medonte its the Conservative candidate who received the most votes, 108 more than the Liberal candidate.

The recount will begin on October 30, 2015.

Judicial Recount in Edmonton Mill Woods

Elections Canada announced yesterday that there will be a judicial recount in the electoral district of Edmonton Mill Woods.

Liberal candidate Amarjeet Sohi was elected in Edmonton Mill Woods with 20,398 votes (41.2%), 79 votes more than Conservative party candidate Tim Uppal.

Pursuant to section 301 of the Election Acts (Canada), an elector may request a recount if there is credible evidence that (a) a deputy returning officer has incorrectly counted or rejected any ballots, or has written an incorrect number on the statement of the vote for the votes cast for a candidate; or (b) the returning officer has incorrectly added up the results set out in the statements of the vote.

The recount will begin on Tuesday, October 27, 2015.

If you are interested in learning all about the federal judicial recount process, Elections Canada has produced a detailed and lengthy Judicial Recount Manual which is available on its website.

About those Proportional Representation Seat Projections…

Electoral system reform played a small but meaningful role in the 2015 federal election, from the promises for change; to the numerous strategic voting organizations of varying effectiveness and integrity; to the post-election projections of “what would have been” if the election was run under a proportional representation system.

These projections were being made at the same time as the actual results were being reported, and continue to be reported even up to today in the Vancouver Sun: http://www.vancouversun.com/news/would+seat+count+look+under+proportional+representation/11458907/story.html

These projections are an interesting hypothetical but for those interested in how electoral systems work, they should not be relied upon to accurately show what would happen under a proportional representation system. You simply can’t take the votes cast under a single-past-the-post system and apply them to a proportional representation system accurately. Here are a few reasons why the comparison does not produce an accurate projection:

  • Strategic voting likely played a role in the way a significant number of electors voted. If the electoral system was different, we can assume that many people would have cast their ballot for a different party;
  • It is wrong to assume that people who voted for the candidate of a particular party would vote for the same party under a PR system. Some electors may vote for a particular person, instead of supporting the party generally. They may not vote for the party under a PR system, especially if it is a closed list system.
  • The results produced by a PR system depend largely on the details. Is it an open or closed list? Is there a minimum threshold required to win seats? Does this threshold apply nationally? All these little details will affect who is on the ballot, and how the seats are awarded.

The bottom line is that an election under a proportional representation system is completely different than an election under first-past-the-post. It is all in good fun to speculate what the results of a PR election would be, but there are no reasonable and scientific grounds to use the results of a first-past-the-post election to predict the results of a PR election.

To add even more speculation about electoral system reform, political scientists are already starting to question whether the Liberals will make reforms as promised, as reported by the CBC here: http://www.cbc.ca/news/canada/british-columbia/trudeau-proportional-representation-voting-system-1.3280995