The Information Commissioner was asked specifically about how she felt about exclusions.  She indicated that she would be preparing a written brief on the subject because the entire subject matter is complicated.  The complexity arises from the use of three words, all starting with the letter “e,” which in common use all mean the same thing.  But in the context of Access to Information legislation, the nuances of the respective “e” words are very different.

The words are exclusion, exemption, and exception.

In the context of the “Access to Information Act,” exclusion would mean that the Act does not apply to a certain situation or class of documents. As the Act is inapplicable, the Information Commissioner has no powers of review with respect to the particular situation.

Meanwhile, an “exception” is used to narrow an “exclusion.”  The Act generally would not apply “except” in specific situations.   This combination is employed in the current 68.1 of the Access Act regarding CBC records:

68.1 This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

So the current Act creates an exclusion for CBC’s journalistic, creative, or programming records, but then creates an exception to the exclusion for matters relating to general administration.  The Federal Courts have referred to this as “not a model of clarity because the exclusion is subject to an exception” which creates a “recipe for controversy” and eventually leads to expensive litigation.

My Private Member’s Bill repeals the exception to an exclusion clause (68.1) and proposes a discretionary exemption.  An “exemption” means that although the documents are not excluded from the Act, they are exempt from disclosure.  As the documents are not excluded from the Act, the decisions of Access Officers are fully reviewable by the Information Commissioner.

The Information Commissioner clearly stated her preference for “exemptions” over “exclusions.” She told the Committee that the litigation between her and the CBC over 68.1 “was not about substance. […] CBC argued because it was an exclusion, I did not have a right to review the complaints. […] I was not allowed to review the records.”

She continued: “My personal view as Information Commissioner does not support exclusions to be appropriate as a matter of principle.”  Commenting on the Government’s stated intent to amend C-461 to provide exclusion for journalistic confidential source documents, she stated: “I profoundly believe there should be independent review of Government decisions regarding access to information. This does not mean that the information gets disclosed, because still after a review, we can recommend against disclosure.”

Finally, the Information Commissioner indicated that since 2007 she has received 1200 cases (complaints) related to the Canadian Broadcasting Corporation, of which 200 remain outstanding.  According to Ms. Legault, not a single one of those files relates to the CBC’s journalistic sources.

Accordingly, it appears to me that the Justice Department’s intended amendments to provide an exclusion to protect journalistic source confidentiality is a solution in search of a problem.

Moreover, as exclusions preempt the Information Commissioner’s ability to review matters and complaints, the inevitable result will be confusion and probable litigation.

I agree with the Information Commissioner that a discretionary exemption is far superior to a blanket exclusion as it is consistent with the purpose of the Access to Information Act as enunciated in section 2: “that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.”

As an Officer of Parliament (not Government), the Information Commissioner is the appropriate person to adjudicate disputes and determine when a discretionary exemption is applicable.

Earlier this week was the deadline for Canadians to file their taxes. On April 30, Canadians are forced to contemplate the magnitude of their tax obligations.  It serves as a stark reminder of how much tax Canadians actually pay throughout the year.

However, income taxes comprise only a fraction of an individual’s total tax bill.  All levels of government impose taxes and in ever increasing numbers.  According to the Fraser Institute, a family earning $74,113 paid $9,195 in income taxes in 2012, but that represents less than one third of its total tax bill.

EI, CPP Premiums, and Health Care Premiums in the three largest provinces add $6,769 in payroll taxes.   Meanwhile, the family will pay an estimated $4,812 in sales and consumption taxes; while property taxes will add another $3,607 to that average family’s tax bill.  Finally, the so called sin taxes (alcohol and liquor), capital gains and other profit taxes, and import duties bring the aforementioned family’s total tax bill to $31,615 against its income of $74,113.

That means the family paid 42.7 per cent of its income to one level of government or another.  Comparing that sum to the 36.9 per cent of the family budget going to food, shelter and clothing puts tax obligations into perspective.

Furthermore, as deficits represent deferred taxes, one should add another $2,417 for current consumption of government services paid for in the future, bringing the total tax bill to $34,032.

As sobering as it is that the average Canadian family now spends more of its income on taxes than it does on basic necessities, the gap between the two continues to grow. According to the Fraser Institute, in 1961 that same family would have spent 56.5% of its income on household necessities and 33.5% of its budget on taxes.  By 1981, the spending demands for taxes and basic necessities had balanced one another — both requiring 40.5 per cent of the family’s resources.

Including deferred taxes on deficits, the tax bill of the average Canadian family has increased by 1,932 percent since 1961. Average cash income rose by 1,382 percent and consumer prices rose by 675 percent over the same time period.  When adjusted for inflation, the total tax bill still grew by 143.5 per cent. So although Canadians gained purchasing power over the last half century, a disproportionate amount of their increased resources goes to paying taxes.

It is clear that taxes have become the most significant item in Canadian families’ budgets and that taxes have grown much more rapidly than any other expenditure item.

The knowledge that 45.9 per cent of family income goes to paying taxes allows Canadians to assess whether they are receiving value for money and hold government to account for the taxes it collects.  However, if one wants to reduce tax burdens to 1961 or even 1981 levels, it may be logically necessary to reduce the size and scope of government services to either 1961 or 1981 levels.  Without a drastic reigning in of government spending, taxpayers will continue to pay a disproportionate share of their income for federal, provincial and municipal spending and deficits for decades to come.

Families would certainly prefer to spend a greater percentage of their earnings on goods, services, retirement savings, education funds, or other family priorities.  For families to manage more of their budgets, governments are going to have to claim less of them.

On tax filing day, Canadians should ask themselves whether they believe they or the state are in a better position to determine how hard earned resources should be allocated.  It will take a concerted effort from all levels of government to reduce government spending and lessen Canadian tax burdens to more appropriate levels.

The Speaker held that, although the House has generally been well served by the so called “lists” provided by the parties, the Speaker was not bound by said lists. “The Chair has the authority to decide who is recognized to speak is indisputable and has not been trumped by the use of lists,” declared the ruling.

The Speaker did not establish new rights for backbench Members of Parliament, he re-affirmed rights that have always existed: “The right to seek the floor at any time is the right of each individual Member of Parliament and is not dependent on any other Member of Parliament.”  In other words, no Member (including a Whip) can prevent another Member from seeking the floor.

The Speaker was also quite clear that the right to participate and speak is not exclusive to Members’ Statements.  The Speaker’s absolute discretion to recognize a Member to speak applies to all House proceedings including Question Period and during debates on Legislation.

So how have Members responded to this always present, but recently rediscovered, right to rise and attempt to be recognized by the Chair?  Observers of Question Period and Members’ Statements have probably noticed very little change in the proceedings.  But there have been some important, albeit incremental, developments.  On Wednesday Mark Warawa, the central figure in the debate about the Whip’s ability to vet Member’s Statements, rose, was acknowledged, and delivered an innocuous Statement concerning his riding. Warawa was not on Wednesday’s “list.”

During Question Period, Leon Benoit and Elizabeth May both rose, but neither was recognized by the Speaker.  Benoit tried again on Thursday with no greater success.  However, something interesting also occurred during a “Liberal” slot.  Both Mark Garneau and Carolyn Bennet rose simultaneously.  The Speaker recognized the Member for Westmount-Ville Marie (Garneau), but Carolyn Bennet delivered the next question.  I suspect she was the one on the list, but the Speaker did what he said he would do – he was guided, but not bound, by the lists.

So there have been some minor, but important changes as to how the House operates.

I have been asked by several media outlets whether I intend to avail myself to this reestablished opportunity.  The answer is “yes,” though I have not yet done so.  The reason (and I believe the reason is important to an understanding as to why we have noticed only incremental change in the operation of the House) for this is that a rediscovered right or opportunity should not be deployed capriciously or in a cavalier manner.  I did not advocate for a Member’s ability to speak freely just so that Members could speak merely to hear the sound of their own voices.  They should reserve the opportunity and indeed the privilege to speak in the House to occasions when they have something substantial to say.

But Members must avail themselves of that ability to attempt to be recognized on occasions when that Member has something important to say, because the right to speak freely in this House was not so much taken away by the leadership as it was voluntarily ceded.

So it is up to us now; the Speaker has reaffirmed a MPs right to stand and be recognized:  “If Members want to be recognized they must actively demonstrate that they wish to participate.  They have to rise in their places and seek the floor.” Fair and wise ruling, Mr. Speaker!

This raises issues much more significant than the subject matter of the disallowed SO 31.  It raises questions as to the role of the Member of Parliament, Freedom of Speech in a Chamber where that freedom is supposed to be absolute and how our Parliament and democracy are supposed to function.  Are Members of Parliament mere mouth pieces for their respective parties, required to have their words vetted?  Or are MPs sent to Ottawa to represent their constituents in a Chamber where free speech and fulsome debate are essential?

I have argued that nothing in the wording of Standing Order 31 supports the proposition that the parties determine who gets to speak and therefore can remove a Member from the rotation for reasons known only to itself.  SO 31 provides that the SPEAKER can order a Member to resume their seat if the Standing Order is being used improperly. Accordingly only the Speaker, not a party whip, can remove an SO 31 and only for cause.

In fact, the whole practice of having the Parties submit SO 31 names to the Speaker was merely for the convenience of the Speaker, who wanted to provide for an orderly succession of Speakers in the allotted 15 minutes. This practice, developed for the convenience of the Presiding Officer, was never intended to allow the Parties to vet and therefore disallow any proposed statement.

Now some detractors have suggested that this is a pro life cause in the guise of democratic reform.  It is not!!  In fact, the catalyst for all of this: Motion 408, which would have called on Parliament to condemn pregnancy termination based on the fetus being female has been abandoned.  Warawa has abandoned this Motion in favour of a Bill dealing with offenders serving house arrest in close proximity to their victims. However, the Point of Privilege remains very much alive, as the question is broader and pivotal to the functioning of our Parliament.

I anticipate a favourable ruling from the Speaker. There have many thoughtful interventions supporting the concept that Members ought to be able to deliver statements free from vetting.  Only the Government Whip has spoken against; drawing an analogy between caucuses and a hockey team, where the coach determines who gets to play.

Meanwhile, the new Leader of the Liberal Party has indicated the tabling of a Motion which could formally remove the submission of lists of speakers from party control.  Although not yet tabled, I understand the Motion would amend Standing Order 31 by adding:

(1)     The Speaker shall recognize Members in alphabetical order by Party.  For the purpose of this Standing Order, all Members who do not belong to a recognized party shall be grouped together.

It then provides a mechanism for Members to trade slots if they are to be absent on their scheduled day.

This wording, if accurate, imports the word “Party” previously absent from the Standing Order; importing the concept of Party seems to run contrary to the stated intent of the Motion, to remove the control and vetting of SO 31s from the Parties.

More troubling, the draft seems to infer (or at least is open to the interpretation of) equality of parties.  It appears the proposed rotation would be on a Party basis, meaning that all Parties would have equal, not proportional, slots.  That would certainly advantage parties with smaller caucuses, whereas the current system appropriately distributes spots proportionally to the size of the caucus.  Mathematically, the 8 Independents would similarly get 25% of the rotation; accordingly each would get to deliver a Member’s Statement approximately every other day.

The awkward wording aside, it is also unclear that the Motion is well intentioned.  It has been suggested that its entire purpose is to “wedge” Members such as myself, who have been vocal in favour of Parliamentary Reform, to vote in favour of the Motion, possibly against the wishes of our Leadership.

Regardless, the whole Motion could be pre-empted and deemed moot by a positive ruling from the Speaker.  I have argued in the House that the current Standing Order 31 is actually quite clear and as written, does not support Party or Whip vetting.  If the Speaker so rules and provides appropriate direction, that would be a preferable outcome to amending the Standing Order unnecessarily and especially using unclear wordage that denotes equality of Parties rather than equality of Members.
Brent

In the last two weeks, we have lost two giants of the conservative movement:  Premier Ralph Klein, who I served under as an MLA and Margaret Thatcher, whose speeches, policies and platforms I studied at the time when I was developing my own political philosophy.  The two now departed leaders were very different in some ways; they were very similar in many others.  They both grew up in modest circumstances and fell into politics somewhat accidentally.  But I believe the greatest similarity was their sheer tenacity and strength of their conviction.

When Klein was slashing provincial spending and privatizing liquor stores and vehicle registries, he used to muse that his day was not complete without at least two protests.  Thatcher ten years earlier endured hundreds of protests, many of them violent.  Undeterred, her famous quip was “the lady is not for turning”!

Both understood that government assistance, however well intentioned, would create dependency and each tightened welfare rules and limited benefits to encourage the able bodied to seek work.  Both innately understood that governments, like families, must live within their means, that state enterprise that could be privatized should be privatized to foster competition and efficiency.  Both inherited fiscal calamities from their predecessors and set out to bring fiscal order and implement tax reductions; they believed families not bureaucracies were best able to spend scarce financial resources.  Both left their respective economies much stronger than they found them and both were ultimately done in by their own parties.

Thatcher has been out of office for 23 years; there was no internet, most people received their news from daily papers.  Klein came to power shortly thereafter and did have to contend with the 24 hour news cycle and bloggers and their insatiable need to fill dead air and space.  However, Klein did his best work early in his first term, prior to the advent of social media realities and exigencies.

Tasha Kheiriddin has written that the aforementioned era was the golden age of conservatism; “it represented a philosophical shift within the conservative movement, a period when principles, not mere partisanship defined politics”.  I believe she is spot on.  As a young conservative at the time, I believed (and still do) that elections and power were a means to an end not an end in themselves.

I worry sometimes that the dogged determination demonstrated by Thatcher and Klein might be lost on modern political leaders, who are surrounded by communications specialists and are obsessed with popularity, polling, message control and electoral calculation.  The inevitable result of replacing philosophical principle with partisan motivation is compromise, conciliation and consensus making.  In “The Iron Lady”, Prime Minister Thatcher referred to her hyper-paritisans detractors with derision as “placaters”.  But appeasement is inconsistent with the determined and uncompromising leadership that was required to lead Britain out of its 1979 malaise or Alberta’ s 1992 $23B debt.  And is probably why the federal government has a $26 B deficit and $600 B in debt and why Alberta is once again entering the red in its budget forecasts.

In the end her inability to compromise was Prime Minister Thatcher’s demise.  But if one must continually compromise in order to attract and retain power, it will indeed spell the end of principled philosophical leadership. The NDP are struggling with this very concept this weekend as they debate removing the word “socialism” from the preamble to their constitution.  Sadly, if principle not partisanship was the golden age of politics, the modern era will be marked by compromise, pragmatism and ultimately mediocrity.

Brent

I served under Premier Klein from March 2001 until October 2004, when I served as the Member of the Alberta Legislature for Edmonton-Calder.   Although I was a complete political unknown in 2001 and Calder had been represented by a popular three-term Liberal incumbent, Lance White, Calder was more than ready to embrace a Ralph Klein Torchbearer in 2001.  The Edmonton-Calder Constituency is north and west of downtown Edmonton, straddling both sides of the Yellowhead Highway.  It is neither inner city nor affluent; it is blue collar, with many senior citizens and starter homes.  Although Calder had not had PC representation since the mid 80’s, I was successful in convincing a 500 vote plurality to support “Team Klein”.

I enjoyed my time as an MLA; I enjoyed serving under Premier Klein.  His caucus was truly democratic.  No Cabinet legislative initiative would see the floor of the Alberta Assembly without first having been vetted by a Standing Policy Committee of the Caucus and then having been approved by a vote in the full caucus.  The Premier would state his position clearly but was consistently respectful and deferential to his caucus.  This mutual respect became evident during the contentious auto insurance reforms of 2003.

Because of the democratic nature of the vetting process, the proposed $4,000 cap on personal injury awards was derailed and delayed for over a year until the Ministry could convince the caucus that the reforms were necessary and appropriate.  I remember discussing the matter with the Premier in the days following my 2004 electoral defeat.  I was touched and impressed that the Premier himself had called to express his disappointment at my narrow defeat in Calder in 2004.  As I was at the Leg packing boxes when he called, he invited me to his third floor office for a coffee.  I asked him why I had never been disciplined for my very vocal and very public opposition to his Government’s attempt to reform automobile insurance.  He explained it was discussed but his thoughts were that because I never made it personal, that I stuck to the issues and made principled and reasoned arguments, that ultimately it was viewed as a constructive contribution that in fact improved the final bill, which eventually received caucus approval.

I got to know “Ralph” in a comparatively non-political situation.  The basement of the Alberta Legislature had a small Member’s Gym.  I would try to get down there at lunch time and the Premier frequently spent his pre Question Period time running on a treadmill.  It was there and in the locker room that I had most of my conversations with Ralph Klein; rarely were they about politics.  He knew that “Rathgeber” was a German word meaning “giver of advice” and explained that in German “Klein” means “small”.  We discussed hockey, football, the weather while in the gym; rarely anything political.

He explained to me the five “C’s” of Journalism— Controversy, Chaos, Conflict, Confusion and Confrontation.  Although a million airplanes safely landing will never be news, the more “C’s” a potential story involves, the more interest journalists will show, guaranteeing a big story.

I remember clearly one day in the locker room, Ralph was polishing his own black dress shoes.  It struck be as somehow odd that someone surrounded by staffers and with a hectic schedule would shine his own shoes.  So I inquired.  The Premier explained that he had tried sending them out for shining but discovered that nobody could shine them as well as he could; besides he enjoyed it.

That is the Ralph I will always remember—thoughtful, instinctive, compassionate and most of all, humble.  What other modern day political leader is known both to political leaders and also to the notional Martha and Henry only as “Ralph”?

To this day I continue to shine my own shoes.

Brent

Let me say that reports of a caucus revolt have been overblown.  But to the extent that there are concerns amongst members of the caucus regarding their role and efficacy, the suggestion that those concerns have been quelled have similarly been embellished.  But what I find most fascinating, and I suppose troubling, is the suggestion that speaking out on behalf of one’s constituents and thereafter defending the right to do so, in any way qualifies as “rogueism”.

I have been quite vocal for the last year suggesting that a Member of Parliament’s role, in fact Parliament’s role, is to hold the Government to account.  Parliament has existed for over 800 years to hold the Crown to account for how it spent the nation’s taxes.

Now within caucus, there are obviously differing understandings of this role both in concept and in application.  There are those who believe members, owing their election to the Party and the Party Leader, are essentially an extension of the Prime Minister’s Office’s Communications Branch.  Their purpose: to read prepared lines in the House and then return to the ridings on break weeks to continue the selling of the Government’s messaging.  Any straying from approved communication lines is viewed as going rogue.

I take a more nuanced view of my role as a backbench caucus member.  As a member of the government caucus, I am loyal to the party and to the leader under whose banner I was elected.  Accordingly, I feel obliged to support the Government’s legislative agenda and I believe my voting record reflects consistency in that regard. However, supporting the Government is not in my view tantamount to blindly and without thinking supporting every detail the Government says or does.

In my view, the constructive criticism of government initiatives is not the equivalent of mutiny or even disloyalty. Quite the opposite actually; sycophants and yes-men are less valuable to a Government’s performance than constructive critics who demonstrate their loyalty by challenging the government to continually perform even better.  Whereas a  yes-man will blindly cheer at an imminent policy derailment, the constructive critic, not shy of speaking truth to power, will advise his colleagues of the proposed policy’s shortcomings.

Moreover, Private Member’s Business is quite distinct from Government Business, even when the promoter is from the Conservative Caucus.  While debating such matters, although one must be mindful of the Government and Leader’s positions, only Ministers and Parliamentary Secretaries (the formal Executive) are bound by those positions.

It has been suggested to me that all differences within caucus regardless of type ought to be resolved in private and that the caucus should speak always with one voice in public.  As appealing as this might be to partisans, it is premised entirely on the concept of opaque decision making.  According to its subscribers, all important decisions are made, and any differences resolved, in private.  Thereafter, the team, having achieved a unified message, goes into public and speaks as a team.

Sadly, this model is premised on the complete irrelevance of Parliament, Parliamentary debate and even Parliamentary Committees. Accordingly, after a decision has been reached in private, said decision would be ratified in Parliament. But with the decision already made, the debate thereafter would be a charade, with players simply reading lines and votes being determined in advance.

Parliament was never intended to be bad theater.  Parliament is relevant or at least it once was and can be again but we must restore the role of its members.  The first step is restoring the Member’s right to speak, to speak freely on matters of importance to the Member’s Constituents.  Inherent in the Member’s Statement is the respect that the Member is speaking as a Member, not as a partisan.  This will clarify the confusion of parties on record as not wishing to advance certain topics.  The Party need not be associated with any topic once the Private Members of Parliament have re-established their historical right to promote them freely.

In an extraordinary meeting of the sub-committee of the Procedure and House Affairs Committee that deals with the voteability of Private Members’ Bills and Motions, the sub-committee was considering Motion 408.  M-408 would condemn discrimination against females through sex selective pregnancy termination.  As is the procedure for vetting the voteability, the Committee relies on the expert advice from an analyst regarding the Constitutionality (both jurisdictional and Charter compliance) and whether the matter is redundant.

On these points the analyst states clearly: “it is within federal jurisdiction.  It does not offend the Constitution and there’s no similar motion currently on the Order Paper.”  In other words, the motion is in the view of the non-partisan analyst entirely voteable.

After a couple of clarifying questions for the analyst, the Conservative Member of the Committee moved that “Bill C-408 should not be voteable deemed because it does not meet these two criteria”. This motion was carried unanimously without any further discussion.  So with swift adjudication, Motion 408 was killed from being debated and voted on in the House of Commons.

What is disturbing about this firstly is the haste and carelessness.  The Mover of the Motion three times referred to the subject matter as a Bill, when indeed 408 was a Motion.  This is more than nit picking; the analyst clearly pointed out in his analysis that the standard of review was different for bills than for motions.  Because Motions are not binding and do not invoke statutory rules, the test is relaxed slightly.  So any misunderstanding of what the committee was debating is most relevant and I hope will be raised at the Sponsor’s pending appeal before the entire Procedure and House Affairs Committee.

But what is more disturbing than the Committee’s haste, is their apparent disregard for the rights of the Private Members of Parliament.  Private Members may bring matters of importance up for debate in the form of Motions or Bills. In a Parliamentary Calendar largely comprised of Government Business, subject to the rules and a lottery which determines precedence, this is the most significant tool a Private Member maintains.

Without a doubt the issue of pregnancy termination is a subject matter that makes some Members of Parliament uneasy and some leaders nervous.  But that is entirely irrelevant.  If Members are opposed, they can vote against the Motion.  If Leaders are strongly opposed, they can attempt to whip their caucuses to do likewise.  But to essentially censor the motion out of the gate against the advice of an independent analyst is heavy handed and I would suggest contrary to the expectations of constituents who rightly believe that their MP’s have a voice and can represent them in Ottawa.

Just when I thought things couldn’t get any stranger, this morning the same Member of Parliament (Langely) raised a Point of Privilege, arguing that his rights as a Member of Parliament had been infringed in that he was denied his apportioned slot for an SO 31 Member’s Statement because the “topic had not been approved”.  Without naming specifically who did not approve his Member’s Statement, the Member correctly stated that it is only the Speaker who can reject an SO 31.  Standing Order 31 states that: “A Member may be recognized, under the provisions of Standing Order 30 (5) to make a statement of not more than one minute” and that “The Speaker may order a Member to resume his or her seat if in in the Opinion of the Speaker improper use is made of this Standing Order”.

So there you have it; according to the rules only the Speaker can determine if the contents of a proposed SO 31 are inappropriate or if the statement exceeds the allotted one minute.  The rules are there to protect the integrity of the House and the rights and responsibilities of its Members.  Neither Private Members’ Motions nor Bills or SO 31s are the prerogative of the Whips or the House Leaders; they are the prerogative of Private Members.  The Government controls so much of the Parliamentary Procedures and Calendar, it is imperative that Private Members stand firm on defending the few rights and opportunities we maintain to raise matters of importance to our constituents.

I would again like to thank Professor Lorne Ternes, Youth advocate, Aaron Paquette, Former Chief Carolyn Buffalo and Aboriginal Facilitator, Tony Alexis.  I would also reiterate my thanks to CFWE FM Radio, for broadcasting the town hall live and facilitating interaction and participation from their radio audience.

So what did we learn??

Although in many ways the system might be broken, clearly the participants are not.  Although many first nations feel discouraged with their situation, they have an unbroken spirit.  There is more that unites Canadians than divides us; we all want all Canadians, first nations included, to survive, to thrive, to be successful and have full and productive lives and futures.  Although some members of the Idle No More movement have abandoned hope, more aboriginals are demonstrating their desire to succeed and improve their conditions.

Many non-aboriginals have limited knowledge of first nations’ history.  It was clear that many of the attendees at the Town hall were not familiar with the provisions of the “Indian Act”, the difference between first nations and Metis, that aboriginals cannot own property on reserve or that they were only given the right to vote in 1960.  This lack of knowledge regarding the history of government-aboriginal relations impedes a fulsome discussion regarding potential solutions.

There is a perception in the aboriginal community that the government does not give them the respect they deserve.  This is certainly prevalent in the provisions of the “Indian Act”, which create a paternalistic relationship between government and its first people.  The sage observation was made several times that it is unclear who speaks for the aboriginal people.  It was made explicit that the Grand Chief speaks formally only on behalf of the Chiefs. It is clear that there is a huge disconnect between the Assembly of First Nations, the individual chiefs and members of the respective first nations.  Aboriginals living off reserve are further disconnected.  Many members of Idle No More believe they lack an adequate (or any) voice.

There are many tragic stories, too numerous to mention. The aftermath of the Residential School System’s attempts at assimilation still haunt the living survivors and their descendants.

There are also many and inspiring stories of success such as Westbank First Nation (Osoyoos), which is prospering and developing a workable model for self-government.

Some have argued that the “Indian Act” is racist because it creates specific provisions and laws (specific legal rights and disabilities) for individuals based on race.  Others argue that “Indian” is a legal term and therefore capable of modification, expansion or theoretically even reduction. It is noteworthy that the definition of “status Indian” was indeed expanded in 1985 by Bill C-31, regarding women who married someone not from her reserve.  This supports the notion that it is Parliament, not race, that decides who is an “Indian”.

There it is: 633 Reserves, approximately 1.2 million total aboriginal people, almost 700,000 First Nations, 400,000 Metis and a further 50,000 Inuit, some thriving; many falling behind with some living in deplorable conditions.

There is a general consensus that the “Indian Act” is outdated, paternalistic and according to some, “fatally flawed”.  There is much less consensus on what should replace it.

I will broach that very topic in the weeks and months to come as the Aboriginal Affairs Committee vets and debates C-428: the “Indian Act Amendment and Replacement Act”.  The Private Members Bill, if passed, would require the Minister of Aboriginal Affairs and Northern Development to report annually on work undertaken in collaboration with First Nations Organizations to develop new legislation to replace the “Indian Act.”

PMB C-428 is supported by the Federal Government, as it is consistent with its approach of taking “concrete but incremental steps to improve the lives of First Nations people”.  However, this legislative initiative is apparently largely opposed by First Nations Groups because they believe that only the Crown, not a Member of Parliament, can fulfill the duty to consult with first nations regarding their future.

Not an auspicious start to the Bill’s goal of starting a process that brings the Crown and First Nations to the table to discuss the future of aboriginal relations in Canada.  But an understanding of the problem is the first step in finding a solution.  The February 19 town hall in St. Albert certainly provided an illuminating education in that regard.

This defiance demonstrates the futility of the recent Supreme Court of Canada attempt to place limits on freedom of expression and also of the Saskatchewan Human Rights Tribunal decisions which preceded it.  Because no court, no tribunal, no bureaucracy, no instrument of the state can control how individuals think.  Any legislative attempt, Human Rights Commission or Court that believes it can control thought is deluding itself.  And by logical extension, if you cannot control thought, any attempt to control the expression of that thought is similarly doomed to failure.

By stating that all Charter protected rights are subject to reasonable limits, the Supreme Court ignores the reality of the near impossibility and clearer undesirability of attempting to place restrictions on freedom of speech.  After reading the unanimous judgment, it is still not entirely clear to me where the line, between allowable speech that merely “ridicules, belittles or otherwise affronts the dignity of” and sanctionable true hatred that creates a genuine climate of menace for a targeted group, is to be drawn.

With such a fuzzy line of demarcation, ironically, it becomes a matter of opinion when that line has been crossed.  The Supreme Court states that “hatred” should be objectively determined but then asks how a reasonable person would view the expression. The High Court is essentially sanctioning a “reasonable person” bureaucrat at the Saskatchewan Human Rights Commission to have an adjudicative opinion concerning what expression is hateful.  The state’s opinion is apparently more objective of what is hateful than is Whatcott’s.

Now, I am no fan of Whatcott; but I accept that any attempts to censor him are not only doomed to fail but are also inappropriate in any society that values freedom of speech.  And as the concurrent situation of Dr. Tom Flannagan’s spectacular fall from grace demonstrates that the media and especially social media are much more effective than the state will ever be in “policing” offensive comments.  Repugnant and/or offensive speech will wither when light is shone upon it; the state need not involve itself.

In a free society, it is citizens, not judges or bureaucrats that decide what is appropriate, what is truthful and what is hateful.  The right to free expression is hollow unless we are prepared to extend it to speech that is politically incorrect or even, no especially, when others disapprove.  Minority viewpoints, especially those of the provocative and/or controversial nature, are the exact types of speech that require protection.  Democracy depends on a free exchange of ideas, promoting vigorous debate and facilitating an open and fulsome discussion.

One of the functions of the Supreme Court is to provide clarity to it citizens on contentious issues and guidance to the lower courts and tribunals subject to its authority.

The Supreme Court could and should have left prosecution of truly hateful speech to the courts pursuant to S. 319 of the Criminal Code, where procedural safeguards protect against the fast food type of justice that the Human Rights Commissions have become famous and criticized for.  But since the Court chose to uphold sections of the Saskatchewan Human Rights Code which attempt to regulate free expression, it is incumbent upon the various legislatures to repeal any legislative mechanisms that promote censorship.

Such a Bill is inexplicably being held up in the Senate of Canada; Private Members Bill C-304, authored by my colleague Brian Storseth, when passed, will repeal the much maligned Section 13 of the “Canada Human Rights Code”.

The House of Commons has determined that regulating speech on the internet will not change opinions and any attempt to do so is both doomed to failure and dangerous in a free society.  The House of Commons has determined that the state should not be in the internet censorship business.

That is my Charter protected opinion.