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Canada Changed Its Election Rules So It Could Negotiate the TPP

A tricky solution for a tricky problem.

The Canadian government found itself in a tough spot when Prime Minister Stephen Harper called an election right in the middle of Trans-Pacific Partnership talks, a hugely controversial international trade deal that's so far been discussed in secret.

Past election rules would have made it difficult for the government to continue negotiations until a vote was held, since the "caretaker" phase of elections the government is now in prevent it from doing things like signing a deal that could result in an overhaul of the country's copyright law.


So the government changed the rules.

For the first time, the Privy Council Office (PCO) released updated guidelines that describe how government officials should act during the caretaker period. Why now? Well, rather suspiciously, the document contains a section seemingly tailor-made to allow the government to continue trade negotiations during an election—and according to a representative from the PCO, the new guidelines were indeed crafted especially for this election, and for just the TPP.

"It has been clear for months that the TPP negotiations could overlap with Canada's fixed election date, and that questions would arise," Raymond Rivet, director of PCO corporate and media affairs, wrote Motherboard in an email. "As such, it was decided to add some clarity in this edition of the guidelines."

"It is definitely a tricky position for Canadian negotiators to be in"

Notably, while the government is free to continue negotiations, the PCO rules state that a treaty cannot be ratified until after the final vote has been counted on election night. What this means is that, whatever happens during negotiations, when a government is formed after the election, whether or not the TPP stands will be up to them. While all three major parties have come out in support of the agreement, they disagree on key details.

"It is definitely a tricky position for Canadian negotiators to be in," Liberal member of parliament and party trade critic Chrystia Freeland said in an interview. "Being in a caretaker government puts them in a more complicated position."


And the political stakes are high. If Harper comes out on top in negotiations, pundits believe it will cement his persona as a leader that's strong on trade. NDP leader Tom Mulcair has resorted to calling the Prime Minister "weak" and "vulnerable" during talks.

When asked by reporters on Monday whether the government would sign a TPP deal during elections, Harper replied, "We will make sure, should there be a deal, we will get the best possible deal for this country," according to a transcript provided to Motherboard by a Conservative Party spokesperson.

But ratification, although prevented by the PCO's election rules, is actually the last step before a treaty can go into effect, according to University of Ottawa policy researcher Michael Geist. Before that, there's signing, which the rules don't explicitly ban. But it's unclear whether even that can be done.

"Once the agreement is signed, it's not that you're bound by anything; you're only bound by a treaty once you've ratified it," said Geist. "But signing signifies that you largely agree with the agreement and have an intention to ratify. It's sometimes described as the difference between becoming engaged and becoming married."

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Signing the TPP would go "well beyond" what a caretaker government can do, Geist said. Freeland also noted that it's highly unlikely Canada will sign anything in the coming months.

"In order for Obama to sign it, even though he has fast track authority, he has to give 90 days notice to Congress that he will do that, and 60 days before that he has to publish the text," Freeland said. "It would be highly unusual, and hard to understand the rationale, for the other parties to sign significantly before the US does."

Politics aside, the strength of Canada's dairy industry hangs in the balance of the TPP negotiations, as well as copyright reforms that would require the government to institute new crimes and punishments, as well as possibly block websites hosting copyright infringing material. The deal also has international ramifications, with Australia and New Zealand's medicine prices on the line, as well as Japan's wheat industry.

Despite all the tough electionspeak, it appears as though Canada's position at the TPP bargaining table is more fragile than anyone would like to admit.