The Keen Testimony, first blush reactions
Well, I think I now understand what the CPC government is trying to do, and I think it will fail. They are trying to get Keen to read into the controlling Act additional responsibilities that over the Act's seven year history and reviews throughout that period were never once considered to be a part of the Act. They are focusing on the "health of individuals" wording being not explicitly stating it is only regarding those in and around operating nuclear reactors and saying that because it did not explicitly limit (as opposed to implicitly limit which any fair/objective reading of the language makes quite clear otherwise this ambiguity would have been raised prior to when a government needed the regulator to see it this way to protect them in a highly sensitive and politically charged issue) the term health of individuals to mean the health of those directly affected by proximity to an operating reactor or storage facility of nuclear materials that she had the ability to read into the Act these additional powers. Now, some might argue that she should have done exactly that because the health of Canadians is important, and that has been the CPC argument to date, the problem with it is that it is nothing but garbage.
It is not appropriate for any regulator to read new powers into their purview except by the most limited and direct outgrowth of the Act controlling that regulator. In regards to the CNSC there was never any aspect of it that considered placing responsibility for medical health needs of Canadians beyond that of those in proximity to nuclear materials, so to read into the Act the way the CPC government wanted to have Keen do was entirely beyond the scope of her original responsibilities and indeed given the quasi-judicial nature of the regulator for her to do so would be an egregious example of gross judicial activism, something I am used to hearing the CPC decry, not insist upon (but then in this case the insistence was because they needed the CNSC to do so to give the government political protection which shows just how little they are truly concerned about judicial activism despite all of the rhetoric we have ever heard from them about it) . Indeed, as Keen noted in here testimony and I noted in this post the fact that the government felt it had to add specifically this additional power/responsibility after the HoC override of Dec 10 2007 can and should be read as an implicit agreement by the government that the CNSC did NOT have those powers when the government claimed it did during the period prior to the Dec 10 Parliamentary override.
Indeed, one of the first complaints about Keen I heard from the government was about how "rigid" she was being in interpreting her responsibilities and powers. Well, in someone that is charged with nuclear safety that kind of rigidity is a good thing, not a bad thing despite the CPC attempt to spin it so, and I noted that also in another earlier post noted in the link in this sentence (editing troubles, hence the awkward phrasing here). Keen also made a point that people need to keep this "rigidity" in mind being a good thing when she pointed out quite accurately that with nuclear reactors and safety the appropriate comparison is to the level of safety concerns involved in a space shuttle, as both are incredibly complex and extremely dangerous systems with great destructive potential if a misstep/mistake in enforcing the strictest safety regulatory framework. Yet this government appears to find the idea of a regulator with such serious responsibilities to be too rigid in interpreting/reading additional meaning into the controlling Act is a bad thing.
However, to make matters worse on this the government was doing this while it (CNSC) was "seized" with the specific issue, and for the Minister to intervene in the manner he did was on a par with a justice minister calling a judge hearing a specific case to offer suggestions/give orders on how that judge should rule. That is something in our system of law and government that is considered a major no-no, and normally a firing offence. Keep in mind the prior examples of ministers being fired if they hadn't resigned first for inappropriate contact between a minister and a judge, I believe that was something that tripped up Jean Charest back in his early days in the Mulroney government. The actions of the government and Lunn in particular goes well beyond the pale and to be honest I cannot think of another case of such blatant inappropriate interference by a minister to such a body. Indeed, according to the Accountability Act (another point Keen made explicitly in her testimony including citing the specific element of that Act involved here) Harper brought in Lunn's conduct was inappropriate and should have been sacked for doing so, not praised by the PM as going above and beyond the call of duty, as I noted at the time here.
Bottom line, it is very obvious why the government did not want Linda Keen to testify, her facts were on point, her presentation crisp, clear and highly professional, and her logic/reasoning impossible to refute unless one is a CPC partisan more concerned with protecting this government than in actually dealing with the facts/reality. It was never the responsibility of the CNSC to worry about supply issues, it was inappropriate for Lunn to even involve himself in the manner he did in terms of trying to instruct the CNSC on what to do next let alone to grasp the powers they wanted her to read into the Act despite their being no reasonable groundwork for her to do so, and when she quite properly refused to do so was scapegoated in the HoC as a Liberal appointee with the clear implication that she was acting out of partisan reasons first instead of following the requirements of her job. So once she testified it would have been clear to any Canadian watching that she did nothing wrong and it was the government that acted inappropriately throughout this matter especially in terms of her firing, which I must say given what we now know is almost certainly going to cost the taxpayers a fair bit in a wrongful termination suit and possibly given the actions of this government also sued for slander/defamation of character (I may not have the precise legal term right here but I am certain it gets the point I am making across).
I think this government has stuck its hand in a buzz saw for the way they treated Linda Keen, and that this is going to haunt this government for a long time to come, especially since Keen's interpretation of her powers is agreed with by independent experts from all I have seen and the government's interpretation is unique and indefensible when it claims Keen had the power/authority to consider isotope supply based on the the wording of health of individuals in a nuclear regulatory safety act when nothing in that Act gives any indication that the concerns regarding health go beyond the health of those in and around nuclear reactors/materials. Basically at every turn this government failed to act in a competent manner, and when it started to catch up with them with the isotope shortage they panicked and looked for someone to fix it for them even if it was not legal for that person to do that for them and when that person refused made that person the scapegoat for everything. The problem for the CPC is that the scapegoat Linda Keen is not taking it lying down and has the credentials and background to effectively rebut the government's actions to scapegoat her and indeed makes it that much more obvious to the average Canadian of just how badly and incompetently the CPC government has handled nuclear safety and specifically the Chalk River situation from beginning to end. This government chose to place its partisan political interests ahead of nuclear safety and the independence of the regulator, and even by my standards of just how extensively how partisan I believe this government to be even I would not have thought they would go this far if I had had this situation described to me say three months ago, and I am not exactly a fan of this government to begin with.
Depending on what else shows up I may update this post later or write an additional one, but for right now this is what I took away from watching her testimony before the Commons committee.
It is not appropriate for any regulator to read new powers into their purview except by the most limited and direct outgrowth of the Act controlling that regulator. In regards to the CNSC there was never any aspect of it that considered placing responsibility for medical health needs of Canadians beyond that of those in proximity to nuclear materials, so to read into the Act the way the CPC government wanted to have Keen do was entirely beyond the scope of her original responsibilities and indeed given the quasi-judicial nature of the regulator for her to do so would be an egregious example of gross judicial activism, something I am used to hearing the CPC decry, not insist upon (but then in this case the insistence was because they needed the CNSC to do so to give the government political protection which shows just how little they are truly concerned about judicial activism despite all of the rhetoric we have ever heard from them about it) . Indeed, as Keen noted in here testimony and I noted in this post the fact that the government felt it had to add specifically this additional power/responsibility after the HoC override of Dec 10 2007 can and should be read as an implicit agreement by the government that the CNSC did NOT have those powers when the government claimed it did during the period prior to the Dec 10 Parliamentary override.
Indeed, one of the first complaints about Keen I heard from the government was about how "rigid" she was being in interpreting her responsibilities and powers. Well, in someone that is charged with nuclear safety that kind of rigidity is a good thing, not a bad thing despite the CPC attempt to spin it so, and I noted that also in another earlier post noted in the link in this sentence (editing troubles, hence the awkward phrasing here). Keen also made a point that people need to keep this "rigidity" in mind being a good thing when she pointed out quite accurately that with nuclear reactors and safety the appropriate comparison is to the level of safety concerns involved in a space shuttle, as both are incredibly complex and extremely dangerous systems with great destructive potential if a misstep/mistake in enforcing the strictest safety regulatory framework. Yet this government appears to find the idea of a regulator with such serious responsibilities to be too rigid in interpreting/reading additional meaning into the controlling Act is a bad thing.
However, to make matters worse on this the government was doing this while it (CNSC) was "seized" with the specific issue, and for the Minister to intervene in the manner he did was on a par with a justice minister calling a judge hearing a specific case to offer suggestions/give orders on how that judge should rule. That is something in our system of law and government that is considered a major no-no, and normally a firing offence. Keep in mind the prior examples of ministers being fired if they hadn't resigned first for inappropriate contact between a minister and a judge, I believe that was something that tripped up Jean Charest back in his early days in the Mulroney government. The actions of the government and Lunn in particular goes well beyond the pale and to be honest I cannot think of another case of such blatant inappropriate interference by a minister to such a body. Indeed, according to the Accountability Act (another point Keen made explicitly in her testimony including citing the specific element of that Act involved here) Harper brought in Lunn's conduct was inappropriate and should have been sacked for doing so, not praised by the PM as going above and beyond the call of duty, as I noted at the time here.
Bottom line, it is very obvious why the government did not want Linda Keen to testify, her facts were on point, her presentation crisp, clear and highly professional, and her logic/reasoning impossible to refute unless one is a CPC partisan more concerned with protecting this government than in actually dealing with the facts/reality. It was never the responsibility of the CNSC to worry about supply issues, it was inappropriate for Lunn to even involve himself in the manner he did in terms of trying to instruct the CNSC on what to do next let alone to grasp the powers they wanted her to read into the Act despite their being no reasonable groundwork for her to do so, and when she quite properly refused to do so was scapegoated in the HoC as a Liberal appointee with the clear implication that she was acting out of partisan reasons first instead of following the requirements of her job. So once she testified it would have been clear to any Canadian watching that she did nothing wrong and it was the government that acted inappropriately throughout this matter especially in terms of her firing, which I must say given what we now know is almost certainly going to cost the taxpayers a fair bit in a wrongful termination suit and possibly given the actions of this government also sued for slander/defamation of character (I may not have the precise legal term right here but I am certain it gets the point I am making across).
I think this government has stuck its hand in a buzz saw for the way they treated Linda Keen, and that this is going to haunt this government for a long time to come, especially since Keen's interpretation of her powers is agreed with by independent experts from all I have seen and the government's interpretation is unique and indefensible when it claims Keen had the power/authority to consider isotope supply based on the the wording of health of individuals in a nuclear regulatory safety act when nothing in that Act gives any indication that the concerns regarding health go beyond the health of those in and around nuclear reactors/materials. Basically at every turn this government failed to act in a competent manner, and when it started to catch up with them with the isotope shortage they panicked and looked for someone to fix it for them even if it was not legal for that person to do that for them and when that person refused made that person the scapegoat for everything. The problem for the CPC is that the scapegoat Linda Keen is not taking it lying down and has the credentials and background to effectively rebut the government's actions to scapegoat her and indeed makes it that much more obvious to the average Canadian of just how badly and incompetently the CPC government has handled nuclear safety and specifically the Chalk River situation from beginning to end. This government chose to place its partisan political interests ahead of nuclear safety and the independence of the regulator, and even by my standards of just how extensively how partisan I believe this government to be even I would not have thought they would go this far if I had had this situation described to me say three months ago, and I am not exactly a fan of this government to begin with.
Depending on what else shows up I may update this post later or write an additional one, but for right now this is what I took away from watching her testimony before the Commons committee.
posted by Scotian | 2:03 PM
6 Comments:
for sure this government like to keep lines of accountability vague. It allows them to take power when they want to override legislation, and to shove blame when things mess up.
Thanks for this post, Scotian. Reading the comments section in ctv articles shows some people still don’t understand what CNSC, AECL, and the Ministers are in reality responsible for, what Keen’s mandate was, and what such a commissioner can and should do.
We need to keep flogging this one because Harper is chipping away at independent commissioners.
AGREED!
It is a part of what I've meant whenever I said this government will destroy the infrastructure of our government and place the future stability of this country at risk. Repeatedly I have had people think I am way overstating it, but this pattern of behaviour with a weak minority government fundamentally rebalancing the powers of independent bodies charged with our safety and enforcement of the rule of law as passed by Parliament as a whole (which is done to prevent exactly the sort of behaviour the CPC has been engaging in) to keep narrow partisan interests from overriding the safety of Canadians and the following of the rule of law illustrates my fears were far from baseless.
I mean really, if I can keep all of this straight despite just being an average citizen I have to assume that the government is at least as aware of how outside our traditional laws and practices of government their unique "interpretations" tend to be. Lunn's interpretation of Keen's authority to take isotope supply into account based on that "health of individuals" reading they have advanced to claim Keen had the power, refused to use it and therefore deserved sacking for failure of leadership is more of the same.
KNB did a nice post a little while back on this point regarding the regulators and arms-lengths bodies that have had their heads fired/removed when they got in the way of what the government wanted to do, this is something that cannot be allowed to slide, nuclear safety is only one of the most critical/important areas having an independent regulator is critical in. After all if a government is unable to manage such a serious file in a responsible manner and will act as irresponsibly as this one was then they show exactly why they are unfit to hold power even with a weak minority. This is why we all in the progressive community must make defeating the Harper CPC the top priority and work together to that end, this truly is when ABC is necessary, and lets hope this time around Jack Layton gets that instead of being willing to aid Harper by being more concerned with getting Liberal votes/seats even if it allows Harper to gain seats via vote splitting. We shall see.
I'm sure Lunn knew he was blaming Keen for something that wasn't within her scope to act upon, but this bunch doesn't care about that. Blind the public with smoke to cover their asses and forward their unpopular, dangerous agenda. That's it. You're not overstating anything.
Oh, Scotian - a cardiac event? I hope you're alright!
900ft Jesus:
It was a rather frightening thing; I was sitting in my chair typing out a comment somewhere when my heart started to race, then race some more and I decided to check my pulse. At that point it had hit roughly 150 bpm. Over the next three minutes it jumped up to at least 200+bpm, it was pulsing so fast it was hard to keep count, and my wife also found it impossible to track (needless to say this more than a little disturbed her) and it held for 2-3 minutes and then over the next several minutes dropped down to 100-120 bpm and over the next while dropped to my normal range (at that point though I figured it was as much adrenaline from the scare that kept it on the high side for so long after the worst was over) it was a very disturbing experience.
The next time I see my doctor I will be mentioning it to her, and I have been keeping a careful track of my pulse rate whenever it starts to race at all, but it hasn't done anything like that since. I've had my heart jump without warning to a higher pulse in my life but never that bad let alone that long. If it happens again I will be seeing my doctor the next day (if I need an emergency appointment with her I can get it, I am known for never asking for one unless it is truly warranted) but aside from the natural aftereffects of such an accelerated pulse rate I seem to have returned to normal, hence why I described it as a mild cardiac event. My health is what it is, and is why I can disappear for periods of time not just from this blog from the rest as well. It is also why I try to keep a certain amount of restraint in how emotional I get in my writings as well as not getting into futile arguments with those I have cause to believe do not argue in good faith (be it intentionally or because they are programmed with myths like liberal media bias that they honestly believe is true despite no evidence) or are more interested in destruction style commentary instead of thoughtful.
Thank you for your concern though, it is quite appreciated.
Oh Scotian, I'm so glad to hear that you seem to have recovered, but for heaven's sake my friend, a heart is not something to be fooled with. You obviously know your body so you will do what you know is right. Had it been me, I'd be at the doc's the same day!
My Mom died of heart disease @ 54 so I'm super sensitive, even though I'm not the best at looking after myself, ;).
As for your post, great as usual. It would seem that you and I drew many of the same conclusions.
I see that they are going after the Wheat Board again. There was a time that I thought they were brazen for doing all of this but I felt sure our checks and balances would right it all. Now, I'm not so sure. Though the media touch on some it, there is a laissez faire attitude out there that I find disturbing.
Compounding it, is just how many things they are doing that under mine our structures and reputation. It's difficult to discuss them all succinctly, impossible in fact.
I guess we just keep harping, which is I'm sure what many must think I do, lol, but it's too important to me not to.
Stay well.
KNB:
Believe me, I considered it, but discussed it with my father (who while a medical layman is quite well medically educated, but then both my grandparents were doctor/nurse pairings so I was raised in a highly medically literate family) once my pulse had stabilized for an hour so as to cross check my reasoning on waiting as well as making sure the details were known to those closest to me. With my health history and my unfortunate history of being something of a statistical anomaly in many respects in how my body works and how meds impact it it would be foolish of me not to.
Thanks for the concern though.
I saw your post on the latest CPC attempt to violate the Wheat Board Act, which since they are the only party that wants this and they do not command a majority to change the legislation with means they have to use "unique" legal interpretations to try to do this, same as they do whenever the law blocks their way. That is why I noted in this post the history of unique legal interpretations to support their claims of power/authority with things like elections financing and the Wheat Board influenced how they thought Keen had the authority to consider isotope shortages in her decision making despite that being a crock under examination as also I noted in this post.
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