Blog

ALBERTA’S RIGHT-MORE DISUNITY THAN EVER

If you have been globetrotting for the last say 18 months and are just now returning to Alberta, you might be looking forward to landing in the middle of a provincial election. For when you left at the beginning of 2015, Albertans were subject to a fixed election law “window” that mandated that an election take place between March 1 and May 31, 2016.

Having an election window, rather than a fixed date, was admittedly odd, because it did not remove entirely the potential advantage of the party in power deciding when it was advantageous to go the polls.

Regardless, in the culmination of the strangest six months in Alberta, or possibly any other provincial, political history, Alberta’s 29th General Election was held one year ago tomorrow. Events started six months previously, when the Leader of the Official Opposition, Danielle Smith and half of her Wildrose Caucus folded tent and walked across the floor to join Premier Jim Prentice’s PCs.

However, when the “promised” cabinet positions for Ms. Smith and at least one other did not materialize, the result was distrust of the PCs by Wildrose MLAs. The Tory Backbench did not want the Rosies sitting with them in any event, as they were fierce critics in opposition and regarded as splitters from the conservative family. It was the first of many awkward attempts to Unite the Right.

Donations to the Wildrose coffers plummeted, as the loyal grassroots stewed over the mutiny orchestrated by their now departed leader. Months later, it was revealed that Ms. Smith had actually been losing grip on both her caucus and the Riding Associations, most notably the social conservative parts, who were growing frustrated with Ms. Smith’ libertarianism.

The Wildrose had been leading most opinion polls pretty much continually from the election of Allyson Redford in 2012 (in the first and only fixed window election). But on April 7, 2015, with the Wildrose in chaos, Premier Prentice, without repealing the goofy election window law, sought an early dissolution and we went to the polls last May 5.

Premier Prentice thought he had effectively coopted and then destroyed what was left of the Wildrose. But he did not anticipate the backlash over the budget he had tabled in March, which contained both tax increases and a deficit. Nor did he anticipate the angst over breaking the election law and going to the polls a year early; it was seen as opportunistic to get the election out of the way before the worst of the slump in oil prices was realized.

Further, Premier Prentice did not fully appreciate the ghost of former Premier Allyson Redford and how unpopular she still was. Finally, the PCs overlooked the fresh face of Rachel Notley and the fact that the NDP was organized and financed.

The result: the end of the fourty-four-year Progressive Conservative Dynasty and the birth of what is now the only democratic socialist government in Canada.

The NDP won 40.6% of the vote and 62% of the seats. The combined conservative party vote was 52% (27.8 PC; 24.2 WR) translating into 11% and 24% of the seats respectively. When left wing parties are the victim of the mathematical distortions inherent in the First Past the Post System, their demand is for electoral reform and some form of Proportional Representation.

When right wing parties feel that they have been mistreated by electoral results, their knee jerk rallying cry is “Unite the Right”.
One year later, despite multiple efforts, the right in Alberta is more disunited than ever.

Hostility and mistrust between the parties aside, the conditions precedent for merger are absent. Last May, the PCs got more votes but the Wildrose more seats. They each have a competent leader or interim leader, who thinks he is the one to save conservatism in Alberta.

The Wildrose won the by-election to replace Jim Prentice; the PCs won the recent by-election to replace Manmeet Bhullar, who was tragically killed in a traffic accident. Neither party appears to be going anywhere; neither party leader is particularly interested in a merger.

So if the parties can’t get it together, it falls to concerned conservative citizens. The Alberta Prosperity Fund is a Political Action Committee fronted by former talk radio host, Dave Rutherford. Their mantra is “Uniting to restore the Alberta Advantage”. The PAC lobbied unsuccessfully to run a single “united” candidate in the recent Calgary Greenway by-election, won narrowly by the PCs.

This past weekend,” Alberta Can’t Wait” attracted over 400 concerned conservatives to Red Deer. They list as Ambassadors Preston Manning and former Tory Cabinet Minister Rick Orman. They overwhelmingly resolved not to merge the two small “c” conservative parties but to start a third!!

For his part, Opposition Leader Brian Jean has warned against “outsiders” commandeering the unification process. He prefers a grassroots movement to establish a consolidated conservative coalition. There is even a whisper campaign to take over the nascent Alberta Party, steal its name and depose its leader.

There are all sorts of small grassroots meetings held in local pubs and coffee shops. There is general, but not unanimous, agreement that something must be done. But there is no consensus on what that something might be. It reminds me of Monty Python’s “Life of Brian”, when the Judean People’s Front is so preoccupied in its turf war with the People’s Front of Judea, that neither has any resources to battle their common enemy: the Roman Occupiers.

The multiplicity of uncoordinated initiatives and groups is helping no one, with the possible exception of the governing New Democrats. Alberta is the one place where the left is not calling for proportional representation nor ranked ballots!

CANADA’S HOUSE OF CARDS

I suppose it would be tempting to consider the Mike Duffy Saga as a Zero Sum Game—that there are proportionate winners and losers. But there have, in fact, been no winners.

Certainly not the embattled Senator. Contrary to op ed pieces appearing on ipolitics and elsewhere, Mike Duffy was in fact not vindicated nor exonerated. Being found “Not Guilty Beyond a Reasonable Doubt” and being declared “innocent” are very different pronunciations.

Although Justice Vallencourt found Duffy a credible witness and hard working, at no time was he deemed honourable, diligent in filing expense claims or even not opportunistic. Duffy’s reputation remains largely in tatters and given the financial strain of being suspended from the Senate without pay plus unknown legal bills, his relief at the verdict notwithstanding, he has suffered immeasurably.

The Senate as an institution has been severely discredited. An archaic institution, initially inhabited by persons of privilege so that no rules were required—Honourable Gentlemen, surely could be trusted. But when Canada’s aristocracy gave way to political hacks occupying the Red Chamber, nobody thought any accountability or financial oversight was required. One cannot be convicted of breaking rules that either do not exist or are too vague and nebulous to be meaningful.

Undoubtedly, the Court left its harshest criticisms for the Harper Prime Minister’s Office. In successive manoeuvers and scheming worthy of Netflix fictional President, Frank Underwood, PMO operatives were described as master manipulators, puppet and chess masters, ignoring all moral and legal considerations in pursuit of issues management.

This stunning rebuke was not stunning at all. Micromanaging Members of Parliament of both chambers, secret payments, sanitizing a Senate Audit, interfering with an Independent Audit and attempting to cover it all up, was just another day at the office for PMO staffers in the spring of 2013.

For in the early winter and spring of 2013, a lesser known member of the Conservative Caucus was waging his own battle against the “boys in short pants”. The caucus overwhelmingly supported my Private Member’s Bill providing disclosure of the salaries, bonuses and expenses of the most senior members of Canada’s public service including at the CBC. PMO policy advisors also supported the disclosure bill but in light of the unfolding Senate Expense Scandal, PMO Issues Management kyboshed this “misguided” attempt at transparency.

Exasperated staffers could not understand why a backbencher could not comprehend that a Prime Minister, under daily attack over Senate expenses, should not be further exposed to having to defend the salaries and expenses of senior civil servants. And when that unappreciative MP could not be persuaded to “take one for the team”, the chess masters went to work. Eviscerating amendments were introduced at Committee and then Members were substituted to make sure that the matter was decided by compliant team members, rather than by the regular Committee Members, who were being lobbied to save the Bill.

PMO staffers believe, or at least believed, that there is no moving part inside the Ottawa bubble beyond their reach and control. And because promotion within both the Senate and Commons Caucuses is predicated in large part on building up capital with the PM and within the PMO, the young zealots’ self promoting sense of omnipotence becomes actualized.
With all due respect to former junior minister Candace Bergen, who last week still claimed that she was not micromanaged by staffers at the PMO, she is either in denial or PMO staffers were so good at their jobs, that she did not realize she was being manipulated.

When I was in the caucus, I could measure with an egg timer the time it would take for PMO Issues Management to call and demand edits to any blog I posted that was even constructively critical of the Government. When logic failed them. PMO staffers were not beneath threatening an elected member with committee reassignment, not signing future Nomination Papers or even caucus expulsion, all in pursuit of properly managing “issues”.

Finally, the unmentioned loser in this entire debacle are the taxpayers of Canada. Not only do taxpayers pay for PMO staffers that serve not the public interest, but only the interest of the sitting prime minister, taxpayers are also on the hook for the entire dysfunctional Senate. Moreover, it appears that neither Duffy’s nor likely Senators Wallin’s or Brazeau’s disputed expenses will ever be repaid. Finally, taxpayers bear the entire cost of a trial that lasted forever: the Judge, the Court Reporters, Courthouse Security, and the Crown Prosecutors and RCMP Investigators who went 0 for 31.

I am afraid nobody benefited from the Duffy Expense Scandal, with the possible exception of Netflix producers, who might one day require plot lines for future episodes of “Houses of Cards”.

ADVANCED DIRECTIVE NOT THE RIGHT TOOL FOR INSTRUCTING PHYSICIAN ASSISTED DEATH

On Monday night, I made the excruciating decision to say good-bye to my loyal and loving bichon-cocker spaniel, Barney. He was a rescue dog that came to me in 2005; I am not entirely certain how old he was, but suspect he was currently either 14 or 15.  He had a great life; but the last year has been challenging. His mobility and incontinence have been steadily worsening.  He has been falling a lot; Monday he fell and could not get up; he may have had a stroke.

After a couple of hours of immobility, I decided it was time. The vet concurred.  I remember on the drive to the emergency clinic asking Barney: “I wish you could tell me what you want me to do”.  My heart broke when the doctor inserted the needle and my buddy took his last breath.

So it is through that emotional lens that I consider the debate concerning C-14, the Government’s response to the “Carter” decision on physician assisted dying. Those who have never owned pets will see no analogy whatsoever.  Those who have, know the pain and heartache.

I admit to feeling guilt—guilt over the decision that was made and alternatively, for not having made it sooner. Some close to me think I let it go on too long. I’ll never know. There are no right or wrong responses. You never know for sure when, if ever, is the right time.  In the absence of the pet being able to participate in the decision, we do the best we can, considering his welfare and quality of life.

So when I look at C-14, the starting point is informed consent. Critics of the legislation point to the absence of advance directives being able to communicate the patient’s wishes.

In Alberta, a personal directive allows a person with capacity (the maker) to appoint another person (the agent) to make personal decisions for them at some future time when the maker lacks the capacity to make them.  All provinces have some type of advanced or personal directive statute allowing the agent of an incapacitated maker to make non-financial decisions regarding residency, personal activities and associations and medical treatment.    The various provincial statutes regarding “living wills” are similar but not uniform.

The maker must have mental capacity when the directive was signed; but it takes effect when the maker lacks the mental capacity to make non-financial decisions. An Enduring Power of Attorney is the companion regime regarding the financial affairs of an individual lacking mental capacity.

It is common for personal directives to contemplate end of life care including important matters such as resuscitation and life support procedures. A personal or advance directive must be drafted carefully, as it is impossible to contemplate what medical exigency the maker may encounter years later. It is the role of the agent to make decisions in accordance with the directive but also make decisions the agent believes the maker would have made if able to do so.

I believe that fact has been lost in the current debate; in almost every circumstance involving an advance directive, it is the agent who is making decisions on behalf of the incapacitated maker.

In Alberta, at least, it is possible to sign a personal directive without appointing an agent. This is strongly not recommended.  Some makers want to create their own binding instructions on care givers.

Talk to any Estate Planning Lawyer and they will tell you how easily makers (with capacity) are confused when it comes to these complex matters.  For example, their instructions will be: “I do not want to be resuscitated”.  However, when challenged, they probably mean they do not want to be resuscitated if they are in a persistent vegetative state without reasonable hope of regaining awareness plavix 75 mg. That is an important qualifier. They probably mean they will not consent to life support.  However, if their illness or trauma is transient and there is a reasonable expectation of recovery, their instructions will be very different.

The point is these matters are complex and very fact specific and cannot contemplate all possible medical circumstances. And almost always, it is the agent making the critical decisions in consultation with care givers.

From a legal perspective, a maker can entrust an agent to make decisions regarding non-intervention (not resuscitating under specified circumstances) but an active intervention such as euthanasia is a very different matter. Although the result is likely the same, not intervening and allowing nature to take its course, and active intervention to terminate life is not a difference of degree; it is a difference of kind.

Advance directives are used in some very limited circumstances in some jurisdictions that allow physician assisted death.  The Joint Senate-Commons Committee recommended that advance directives be allowed after diagnosis with a condition that will result in eventual loss of competence.  This might satisfy the legal requirement of informed consent, as the patient at least has a diagnosis and can contemplate their future.

Our Supreme Court did not specifically deal with the issue of advance directives because the facts in ‘Carter” did not require it.  However, protection of vulnerable persons was the Court’s primary objective in granting limited access to physician assisted death.

Accordingly, contemporaneous competence to the procedure and knowledge of all of the facts and circumstances ought to be prerequisites for informed consent.

Advance directives are simply an inadequate tool to provide the level of informed consent required for such a complex and absolute instruction. For example how is “intolerable pain” objectively determined, especially by a patient lacking mental capacity and how is it communicated??

Finally, it is unfair and unrealistic to entrust this type of decision to an agent. An agent simply cannot possibly know what the maker would have wanted regarding circumstances that were not contemplated when the directive was made possibly years earlier.

I will always second guess my decision to put Barney down and when I made it; I cannot imagine being entrusted to make that decision for another human being.

I believe that the procedure must be limited to those who can give informed consent. That means competent adults, provided the other medical conditions are present. C-14 is an imperfect, but reasonable, response to an impossible and one size will never fit all moral and legal quagmire.