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August 31, 2011

Why is the CBC is above the law?

The setup, from Kris Sims:

OTTAWA – The CBC isn’t getting taken to the woodshed for airing vote results to western Canada on election night.

In a letter to a complainant in British Columbia, Elections Canada said since the state broadcaster didn’t intend for their signal to hit screens in the west, no penalties will be dealt.

The law in question is the Canadian Elections Act, specifically s.329:

329. No person shall transmit the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district.

This particular law was under debate during the last federal election and in my role as Director of the National Citizens Coalition, I participated in a number of television, newspaper and radio interviews on this terrible section of the Act. It also seems to be one of those topics that I write about during each time an election rolls around. Also, I usually pull Blogging Tories offline for three hours during election night in order to comply with the Act.

If, for some reason, it isn’t immediately apparent was is wrong with the law, in the age of Twitter, Facebook, and blogs, it is unreasonable for Elections Canada to expect individual Canadians to keep Eastern results to themselves when many are ignorant of the details of the Act. Further, while there is the ideal of fair elections to respect, there is also the principle of free expression. Legislators must create laws that recognize and move with reality, not try to shape new ones.

The National Citizens Coalition has history with this section of the Elections Act. In 2000, a BC webmaster named Paul Bryan published election night results from the east coast on his website and was subsequently charged under the Act. The National Citizens Coalition bankrolled his fight through the BC Supreme Court through the BC Court of Appeal to the Supreme Court of Canada where s.329 was deemed constitutional and legal because it ensured “informational equality”.

Yet, lets understand “informational reality” while aiming to safeguard “informational equality” at the same time. When the tools of mass communication can exist in anyone’s hands, one must recognize a new truth. The mandate of Elections Canada is to protect the integrity of election results. In truth, the onus of protecting against premature transmission lies with them. They are the custodians of this information, in fact they likely swear an oath to protect it. To ensure “informational equality”, Elections Canada should keep all poll boxes sealed until polls close in British Columbia. Former Chief Electoral Officer Jean-Pierre Kingsley complains that this approach means Canadians won’t get “timely” results (in this age of mass media, no less). Yet, a higher principle of freedom of speech exists for Canadians who are unbound by any mandate to protect the information of Elections Canada.

While mass media technologists armed with Twitter faced fines of up to $25,000 for tweeting election results, the CBC accidentally broadcasted the same to all of their viewers. Because there was no intent, Elections Canada argues, CBC will skate free. Yet, tweeters ignorant of the law (most of them) faced crushing fines.

This also brings the fair and equitable application of the law by Elections Canada on some parties versus others. How is it we see progressive champions of progressivism at the CBC save themselves from what would amount to chump change for the Crown corporation while the small guy gets a hefty fine? Why can Elections Canada shrug its shoulders at the CBC but yet force a seven year $1 million Supreme Court fight for someone that wouldn’t have had a voice without the good financial supporters of the National Citizens Coalition? Why is it that Elections Canada raids Conservative Party offices over the “in-and-out” scheme where it has been shown that all parties have participated in one form or another of the same scheme? Why is it that the Manning Centre cannot register as a charity and do political work, while David Suzuki’s charity plays politics frequently? When laws are seen to be applied unequally, existing-only-on-the-back-of-a-napkin-only-type organizations like the Broadbent Institute think that they can use the special tax status of a political party like the NDP to funnel contributions through and issue tax receipts.

Why is it that some laws in our society only exist to regulate some while elite institutions and causes need not worry about the same?

This entry was authored by at 02:52 PM | Tweet this | Comments (54)
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  • The_Iceman

    I happened to be watching CBC Newsworld when they aired the results, and they were all from Atlantic Canada. I spent the next 1-2 hours with the polls still open thinking that the Liberals might actually be competitive in the election. It was quite traumatizing. I may have suffered from post traumatic stress disorder. I should sue…

  • E Mac

    Ah! The CBC my favourite topic and Elections Canada.
    CBC is overdue for (a) privatization and (b) Elections Canada is due for a complete hulking out.
    When will the Minister responsible get his head out of his (not allowed to say) and take decisive action.
    Canadians are patiently waiting…tic toc, tic toc.
    What a disgraceful circumstance.

  • Cytotoxic

    The minister will not take any action because he (Moore I believe) loves the CBC and his boss knows that people like Taylor would never ever consider not blindly supporting Team Blue, so there’s no downside.

  • http://twitter.com/punditsguide Pundits’ Guide

    You have to intend to break a law to be found guilty of doing so. If you intended not to break the law, but accidentally did so, you do not have “mens rea” (criminal intent) and are thus not guilty of doing so.

    That seems reasonable. As a parallel, several MPs of different parties have inadvertently exceeded the spending limits, but it being obvious they didn’t intend to, they weren’t charged either (e.g., Bev Shipley).

  • http://www.renegadetory.com Carolyn Dahl

    How does one “accidently”  broadcast something?  That’s what I’d like to know…

  • http://www.renegadetory.com Carolyn Dahl

    How does one “accidently” broadcast something?  That’s what I’d like to know.

  • Liz J

    With the CBC I’d say it would be accidentally on purpose, they knowingly did what they wanted to do and feigned ignorance.  They’ve had free wheeling for years and feel confident they need not worry about mere legalities. Nothing has changed for them with this present government to this point.

  • http://pulse.yahoo.com/_DKE6PFKRVWKQT6Q7HP7VZJ64BQ Tellingitlikeitis

    Please don’t let them privatize the C.B.C. until a complete and thorough forensic audit has been done with all these locked documents opened for public consumption.

  • http://twitter.com/punditsguide Pundits’ Guide

    Well, that’s beyond my area of expertise, but I would guess it was something like pushing the wrong button, or plugging in the wrong line. I spent one election night in a newsroom, and it’s sheer pandemonium, so I could believe that it was a normal snafu.

  • http://twitter.com/punditsguide Pundits’ Guide

    Well, that’s beyond my area of expertise, but I would guess it was something like pushing the wrong button, or plugging in the wrong line. I spent one election night in a newsroom, and it’s sheer pandemonium, so I could believe that it was a normal snafu.

  • Gabby in QC

    “To ensure “informational equality”, Elections Canada should keep all poll boxes sealed until polls close in British Columbia. Former Chief Electoral Officer complains that this approach means Canadians won’t get “timely” results (in this age of mass media, no less). Yet, a higher principle of freedom of speech exists for Canadians who are unbound by any mandate to protect Elections Canada’s information.”

    Neither “principle” stands up to close examination, IMO.
    • The “timely” results could just as easily be broadcast AFTER all polls have closed, or even the following day, with no one losing any sleep over it.  Surely the TV networks could find some other drama to fill those few hours. 

    • The “higher principle” of freedom of speech is not impeded by the fact the election results are delayed for a few hours or until the next day. The average Canadian can still fill blogs, facebook pages and the Twitterverse with profound comments and observations, much as we do now — with the occasional comment modified, edited, or deleted at the blog owner’s discretion. What’s the big deal about telling someone in BC that candidate X won his/her seat in “Heart’s Desire, located on route 80 between Heart’s Content and Heart’s Delight” in NL — unless it is to somehow skew results with some “strategic” voting?

  • Mthielen

    OT but wh  ever I try to access   BLY from firefox or internet explorer I keep getting  a message  saying site being prevented from opening.  Why would that be.

  • Gabby in QC

    Mthielen, I’ve been having a problem with BLY too. I left a message to that effect for Joanne at the Iceman’s blog, and Joanne is apparently aware of the problem.

    I get this message when I try to log in:
    “This premium domain name is for sale. If you wish to purchase it or have any questions, contact us here.
Blogrolling.com …”

  • Gabby in QC

    Mthielen, I’ve been having a problem with BLY too. I left a message to that effect for Joanne at the Iceman’s blog, and Joanne is apparently aware of the problem.

    I get this message when I try to log in:
    “This premium domain name is for sale. If you wish to purchase it or have any questions, contact us here.
Blogrolling.com …”

  • Liz J

    I got the same and it’s still there this morning effectively shutting down access to BLY. Not a friendly gesture IMO.  If that can be done they can shut down all sites whose message they don’t agree with.
    Scary what’s out there.

  • Gabby in QC

    “If that can be done they can shut down all sites whose message they don’t agree with.”
    Who’s “they”?

  • Liz J

    “They”, “anyone”, “someone”, I don’t know but it  certainly is blocking a site and why would anyone want to do that?  

  • Gabby in QC

    Maybe it’s just a technical glitch. 

  • Anonymous

    Nah, Liz’s conspiracy theory is much more fun.

  • Liz J

    Yeah, ’tis.

  • Anonymous

    How does one “accidently” broadcast something?  That’s what I’d like to know.

    I have some systems experience, including broadcast. In a network as large as the CBC, network switching is done in a large centralized location, and is usually mostly automated by a schedule, except for special broadcasts, such as live events (concerts, sports, elections). The glitch is as simple as a person entering two regions instead of one into a switch list, or even a mis-punched button or mis-placed jack.

    I am further confident that this was most likely a simple accident because the people doing the button-pushing are unionized, and I know of no union where management could get away with ordering such a move, then publicly blaming a union worker.

    I believe Mr Taylor is sincere when he says he is supporting free speech, but he’s very selective about when he chooses to defend it. In his opinion, s.329 is curtailing this right with respect to elections, but the only people who used to exercise  this “right” were broadcasters and journalists after ratings, or political operatives looking to use eastern results to influence western voting. or bloggers looking to stir stuff up.  Likewise, he and the right-wing blogosphere are up in arms about the CBC’s less than effusive response to FOI requests, when he knows full well that the vast majority of the requests concerned were sent in by, among others, an Ottawa area lawyer employed by agencies of the right wing. And of course, Ezra Levant decrying the “suppression” of Ann Coulter.

    it seems that whenever a right wing cause is exploiting their right to free speech for less than noble ends, Stephen is there to defend them. Let a George Galloway be muzzled by the federal government, and you won’t hear a peep  of outrage, of course.

  • http://www.renegadetory.com Carolyn Dahl

    Personally, I’m not really up in arms over this as perhaps some members of the “right wing.”

    Amazing how by just the simple push of a button or entering the wrong info into a switch list can cause so much trouble.

    And for the record, I find it extremely difficult to believe that conservatives such as Stephen are the only ones taking full advantage of their rights, whether they be free speech or otherwise….

  • Anonymous

    I find it extremely difficult to believe that conservatives such as
    Stephen are the only ones taking full advantage of their rights, whether
    they be free speech or otherwise.

    I agree. We should still call out hypocrisy when we see it though, regardless of the source.

  • Gabby in QC

    “… he [Stephen Taylor] and the right-wing blogosphere are up in arms about the CBC’s less than effusive response to FOI requests, when he knows full well that the vast majority of the requests concerned were sent in by, among others, an Ottawa area lawyer employed by agencies of the right wing. And of course, Ezra Levant decrying the “suppression” of Ann Coulter. 
    Ooooh! “agencies of the right wing”! C’mon, Kenn2, who’s into conspiracy theories now?
    Let’s be realistic and truthful, both sides of the political spectrum “use” — in its negative sense — so-called principles to their advantage when it suits them, and both sides accuse and point fingers at the other side for doing exactly what some of them themselves do on a regular basis. It’s just human nature. I’m not supporting that kind of attitude, I’m simply pointing out the obvious. And I’m not pointing fingers at Stephen, either.

    I may disagree with Stephen on his untrammeled “freedom of speech/ freedom of expression” POV, but he’s being true to his own partisan POV — not that there’s anything wrong with that — a POV he has never denied having. Surely it’s to be expected that someone who started “The Blogging Tories” would be presenting his interpretation of the Tory perspective?

    Are you completely free of any political POV, Kenn2?

    I’m not necessarily “up in arms” about the CBC not complying with ATI requests, although I do find it highly hypocritical when they use those ATI requests, portraying that information as some kind of conclusive proof of government (Conservative, that is) wrongdoing, or when they assume and editorialize there’s been wrongdoing if their ATI request is denied, decrying lack of transparency, but then refuse to be “transparent” themselves. 

  • Gabby in QC

    Liz, BLY is back up.

  • Anonymous

    Ooooh! “agencies of the right wing”! C’mon, Kenn2, who’s into conspiracy theories now?

    I’m less into theories these days…

    http://www.cbc.ca/news/arts/media/story/2009/09/24/cbc-sources.html

    Thirteen of the 16 cases cited in the subpoena are requests filed by
    Ottawa legal expert David Statham on behalf of Sun Media, which
    publishes a chain of newspapers and has written numerous
    freedom-of-information stories on the expense accounts of CBC
    executives. Statham filed 399 freedom-of-information requests in a
    three-month period in 2007.

    Am I not correct in considering SUN NEWS an agency of the right wing?

  • Anonymous

    Ooooh! “agencies of the right wing”! C’mon, Kenn2, who’s into conspiracy theories now?

    I’m less into theories these days…

    http://www.cbc.ca/news/arts/media/story/2009/09/24/cbc-sources.html

    Thirteen of the 16 cases cited in the subpoena are requests filed by
    Ottawa legal expert David Statham on behalf of Sun Media, which
    publishes a chain of newspapers and has written numerous
    freedom-of-information stories on the expense accounts of CBC
    executives. Statham filed 399 freedom-of-information requests in a
    three-month period in 2007.

    Am I not correct in considering SUN NEWS an agency of the right wing?

  • Mthielen

    I got the same message, but a quick flash in red said, firefox has denied access or something like that. Got the same message when using Internet Explorer/ 
    Today Christian Conservative is having  problems.  Jo thinks it could be bad code.
    I have accessed BLY twice in the last couple of hours and it seems to be ok.  But it is scary to think someone could shut down our blogs as they deem them not sending nice messages.
    Peggy Nash said Jack is reaching out from the grave, so is he responsible-lol

  • Gabby in QC

    “Am I not correct in considering SUN NEWS an agency of the right wing?”
    Just as I and others like me consider CBC and the Toronto Star in particular  – I could name others, but I’ll restrain myself — “agents of the left-wing”.
    See? We’re both free to express our own opinion. Ain’t our country wonderful? (no sarcasm intended)

  • Anonymous

    The Star, I’d agree with…

    BTW – calling the SUN /QMI organization right-wing isn’t a matter of opinion, but of fact – it’s their self-declared stance.

    Regarding the other national tv broadcasters… I’d say their goal is neutrality. You may think they all have a left bias, and I would mostly disagree. (that’s the opinion thing, see?)

  • Anonymous

     I looked at those broken websites and opened the source code in Corel Draw 4, and i swear I saw Satan! No foolin!

  • Gabby in QC

    At least SUN is honest about its political stance. Other broadcasters deny they have a particular POV.

    A very small number of journalists present a semblance of neutrality but the majority wears its bias with the kind of words they choose to use — far from neutral.

    I would dispute other broadcasters/newspapers are neutral — unless you include in that group people like former political pundit/broadcaster Mike Duffy. The minute he left his show because he was appointed to the Senate, he became either a Conservative hack to the left wing or a political ally to the right. 
    Personally, I find stridency, no matter what direction it’s coming from, completely counterproductive. And I prefer to judge each piece, article , report, op-ed on its own rather than immediately labelling it as pro this or that. Mind you, some journalists are very predictable … I won’t bother naming names, they know who they are.

  • http://twitter.com/punditsguide Pundits’ Guide

    The Chief Electoral Officer enforces the Elections Act as it’s written. Your complaint is actually with provisions of the Act. If you want change, lobby the government to introduce amendments to it.

  • Gabby in QC

    I think you’ve misunderstood my comment.

    I expressed my opinion on Stephen’s complaint, not raising one of my own. The opening quotation I cited at the top of my comment is from Stephen’s blog post.

    Unlike Stephen, I’d be just as happy with the ballot boxes being opened after all polls have closed or even the day after the election to tally the votes. I also disagree with Stephen that election results in the East should be broadcast to the West because not allowing that information flow would breach people’s freedom of speech. 

    So, in essence, I agree with Elections Canada regulations as they are now. The one change I argue might be advisable is delaying the vote count, which shouldn’t require long, drawn-out, and pointless “debates” in the House.

  • http://www.stephentaylor.ca Stephen Taylor

    You should read my post again.

    1) Leave polls sealed until all polls close
    2) Free speech is immorally restricted when EC can take other measures to protect the integrity of its information. The onus lies upon EC to ensure integrity of its info. Onus not upon Canadians to hush up under penalty of speaking when not allowed to (this is absurd) 3) I have the right to tweet results to BC if I have them early (God given right to speech — I disagree with the SCC)

  • Gabby in QC

    “Leave polls sealed until all polls close”, you say.
    So it appears we agree on that first point.However, the fact you’ve written a lengthy post in opposition to Elections Canada suggests you’re not entirely happy with the system as is.
    How can you simultaneously argue that you and others have the “God-given” right to tweet results yet you also want the ballot boxes to remain sealed? If the ballot boxes remain sealed, what would you be tweeting that would be in violation of the SC decision?

    On your second point “Free speech is immorally restricted” I fail to see what morality has to do with it. For pete’s sake, Stephen, it’s a simple rule, like lining up at an ATM, or having to remove your glasses for a passport picture, or showing ID when you go to vote. It’s your God-given right to wear specs, but it’s the passport’s office right to ask you to remove them.
    How do you propose EC ensure integrity of its info? Oh, right, keep the ballot boxes sealed. OK, so we’re back to square 1. What would you tweet if the boxes are kept sealed?
    This appears to be a Seinfeldian argument — about nothing. Arguing for the sake of arguing.

    As for “God given right to speech — I disagree with the SCC”, well, I may disagree with rules and regulations and laws, but that doesn’t mean God has given me or you the right to infringe those rules and regulations and laws that I dislike.
    You rebel, you!

  • batb

    You’re the only one who saw him. Hmmm …. ‘wonder what that means?

  • batb

    There are two possibilites: Either this was a mistake — the broadcasting of poll results in the East to Canadians in the West — or it was deliberate on the part of the CBC, who we know has an animus towards PM Harper and the CPC and has been a cheerleader for the LPC for years.

    How would Elections Canada know that this infringement of the Elections Act on the part of the CBC was “unitentional”? Did the CBC tell them? Was there any other opinion sought?

    If the broadcasting in the West of the votes in the East was “unintentional,” then the CBC is incompetent.

    Either way, the CBC should be held to account. The fact that they haven’t been held to account by Elections Canada should mean an investigation into their operations.

  • Liz J

    The Master of taxing, costly green energy and fibs is up for a third term at the helm in Ontario, scary that. Can we talk?

  • http://twitter.com/JCombine JoshuaCombine

    Ok enough with the secrecy surrounding the CBC.They are not CSIS or some organization that warrents secrecy.They are a  state broadcaster who have ONE good program, Hockey night in Canada.The judge ruled to fork over the info and now they are appealing with OUR tax money?Arent they the least worried about the economy?After all it was the Left screaming about the economy in 2008 remember?Sounds like the CBC is talking from where the sun doesnt shine.

    Federal audit of the CBC is now overdue.Thats what happens when you play partisan politics CBC.None of the other networks get our hard earned cash, and have to EARN their piece of the pie.Its about time the CBC did the same.So to echo Ezra Levant ,free the CBC from the nanny state trough.

  • Anonymous

    Yeah! Who are the CBC anyway, that they aren’t responding to the snowstorm of FoI requests from QMI and their lawyers?

    The CBC only provides work for thousands of broadcast professionals, both directly and indirectly, through the independent production companies they buy programming from. They only sell, well, alot of programming to PBS and other world broadcasters.

    So what if they plan and budget well? Let’s cut their budget anyway, so that a few thousand people are laid off. Like all right-wing tax and budget cuts, it’s sure to create jobs for everyone and keep our economy strong!

    And, yeah, more federal audits! Once a year isn’t enough! More audits – weekly, even, but this time, instead of  done by Sheila Fraser, let’s just randomly select some crackpots from the right-wing blogosphere. Who else are impartial enough?

  • Jon_s38

    Kenn2 continues to defend the indefensible… what’s new? Yawn.

  • Jon_s38

    Kenn2 continues to defend the indefensible… what’s new? Yawn.

  • Liz J

    Oh dear, still got those over-filled CBC bubbly glasses greeting us here. 

    Anything new goin’ on worthy of mention? I hear there’s an election in Dalton’s  world, which is now heavily in the red as he pushes green which will sink us further down the rabbit hole.

  • batb

    OT, Stephen, but this is, IMO, an important message:

    Headline over at BCF:

    MUST GO VIRAL! Ground Zero Memorial FLASH SINGING of Amazing Grace When Bloomberg Speaks

    http://ironicsurrealism.com/2011/09/10/must-go-viral-ground-zero-memorial-flash-singing-of-amazing-grace-when-bloomberg-speaks/

    PLEASE HELP US GET THIS VIRAL FAST!All of you in attendance at Ground Zero for the 9/11/11 Memorial Service.hen Mayor Bloomberg begins to speak let “Amazing Grace” FILL THE AIR”The Mayor can keep our Clergy out, but he can’t keep ALL those in attendance from singing.EVEN IF YOU HUM ALONG JUST DO THIS!!!,

  • Anonymous

    Jon claps his flippers and barks on command, waits for nice fishies.

  • Liz J

     Anyone else think the CBC champagne has lost it’s bubbles?

  • Liz J

     I’m tired of champagne, could I have a glass of red wine, for health benefits of course.

  • Liz J

     I’m tired of champagne, could I have a glass of red wine, for health benefits of course.

  • Liz J

    Not a bad day here, a few rain showers but warm. Saw a rainbow in the East after a big shower, my first this season.

    Dalton McGuinty is doing his shtick to win the  election, same tactic that fooled the fools in Ontario twice before so why not keep on the program?  He won’t raise taxes, oh no. He’s got health care under control after E-Health. Something that surprises most of us, he tells us 94% of us have family doctors.  And as for jobs, he says he has created more jobs in Ontario than the rest of Canada and the US combined and the huge deficit, bigger per capita than the federal deficit, is “manageable”.  Holy cow, welcome to Morontario.

  • Anonymous

    Sorry you’re lacking something new to carp about. To kill time, you could always go out and taunt the homeless or something.

    he tells us 94% of us have family doctors.  And as for jobs, he says he
    has created more jobs in Ontario than the rest of Canada and the US
    combined.

    Here’s your chance to shine! Prove that McGuinty has made false claims.

    Morontario will be the result if Hudak wins, especially around Toronto.  Mayor Ford is finally waking up to the fact that the “gravy train” he riffed on was just a misinterpreted food dream.  As his KPMG audit proved, there’s no massive waste in the Toronto bureaucracy, it simply costs alot to provide services to 4+ million people. The only way he can save 10% is to cut 10%.  Sorry, I don’t recall anyone voting for a politician to make things 10% worse.

    Same caveat for Hudak. He should either declare unequivocably that he’ll roll back every McGuinty tax hike, or he should shut the f$%k up about Dalton being the ‘tax man’.

  • Jon_38

    Hudak is not inconsistent whatsoever. He’s not going to roll back the HST. He’s stated that. It doesn’t mean he has to embrace it. He could easily pull a page from McLiar’s playbook and say he will get rid of the HST if elected, and DEAL WITH THE CONSEQUENCES AFTER he’s elected to form gov’t. 

    Is there really any doubt that if the Tories had a dynasty going and were seeking their 5th straight election win since 1995 and they had been the ones to bring in the HST that McGuinty WOULDN’T be making a promise roll it back in this election? 

    I don’t like Hudak’s position on the HST but I respect that he’s not McLiar, our current premier who finds it so easy to make promises that he has no intent on keeping after he’s elected. Nothing stops Hudak from saying he will get rid of it, except that he’s not as desperate for power as McLiar is.

  • Jon_38

    Hudak is not inconsistent whatsoever. He’s not going to roll back the HST. He’s stated that. It doesn’t mean he has to embrace it. He could easily pull a page from McLiar’s playbook and say he will get rid of the HST if elected, and DEAL WITH THE CONSEQUENCES AFTER he’s elected to form gov’t. 

    Is there really any doubt that if the Tories had a dynasty going and were seeking their 5th straight election win since 1995 and they had been the ones to bring in the HST that McGuinty WOULDN’T be making a promise roll it back in this election? 

    I don’t like Hudak’s position on the HST but I respect that he’s not McLiar, our current premier who finds it so easy to make promises that he has no intent on keeping after he’s elected. Nothing stops Hudak from saying he will get rid of it, except that he’s not as desperate for power as McLiar is.

  • Anonymous

    No comment on the veracity of McGuinty’s claims (job creation, etc)?

    ‘McLiar’…’taxman’… ‘desperate for power’

    ah. So that’s it, the PCs wanna campaign on characterizations, not policy.

    Sorry. If Hudak wants traction on his criticisms of McGuinty, he’s gotta say how he’ll “fix” those. Having nicer hair isn’t enough.