Tuesday, January 10, 2006

Senate, Override Sleeper Issues in 2006 Federal Election Campaign

[Note: The Prime Minister's 'Hail Mary' policy announcement in the Second Debate on January 10 to remove the federal government's right to use the override clause in the Charter of Rights is understandable in the current political context--the P.M. is trailing in the polls with less than two weeks left, and is now trying even harder to play the "rights" card. But the proposal is difficult to justify in moral or policy terms, coming as it does on the heels of (1) an assurance by Martin himself that no Supreme Court interpretation of Charter rights for gays would be allowed to circumscribe the religious freedom of clergy to refuse to perform same-sex marriages; and (2) a decision by the Supreme Court last June 9 in Chaoulli that has been widely criticized for potentially laying the legal foundations for the destruction of single-payer public health insurance, which is the very heart of medicare.

The following blog was written on December 16, following the first English-speaking Leaders' Debate. It underscores the danger of using major institutional reform as a political football. Now, it is clear that no matter which of the two major parties forms the government after January 23, either the Supreme Court or the Senate will have its political power enhanced, with potentially far-reaching consequences.---
MC ]

Scheduling a leaders' debate to occur during the middle of Christmas office parties and at the height of the shopping season guaranteed that it would not have a decisive impact on the polls. Most observers consider the first leaders' debate of December 16 to have been a mere dry run for the real contest, which shall begin in earnest in the first week of January. Nevertheless, critical issues were identified in this debate concerning the operation of two of our most important political institutions: the Upper House of Parliament, the Senate, consisting of unelected appointees of the Prime Minister; and the Charter of Rights and Freedoms, as interpreted by our most important unelected body (also appointed by the Prime Minister), the Supreme Court of Canada. In both cases, very serious questions have been raised that need to be answered before Canadians finally go to the polls on January 23.

First, the Charter. You may have noticed that the Liberal Party has aired some very effective advertisements identifying itself with the Charter of Rights. Never mind that it was actually three parties and ten governments (one federal, nine provincial) that negotiated that hallowed document and put it in a made-in-Canada constitution in 1981. Or that the CCF first proposed the idea of a constitutional charter in Parliament in 1945, and first enacted a bill of rights in provincially in the 1940s, or that John Diefenbaker first brought in the Bill of Rights and led the battle against Apartheid in the early 1960s--a battle that was not fully taken up again until the Tories returned to office in the 1980s. Never mind that the subtle message--"we gave you your rights, so you owe us your eternal gratitude"--smacks of precisely of the arrogant culture of entitlement that is at the root of this Government's worst scandal. The idea of the sacredness of the Charter and the rights that it contains was an effective wedge issue that helped to scare many people away from the Conservatives in 2004, when their opposition to same-sex marriage conflicted with appellate court rulings and raised the question of whether the Conservative might actually use the dreaded section 33 "notwithstanding" clause to override a decision of the Supreme Court concerning fundamental rights and freedoms contained in the Charter!

Mr. Harper is now ready for this line of attack, making it perfectly clear that he is not prepared to use the override clause of the Charter to implement his party's views on same-sex marriage, although he would entertain a free vote in the House of Commons (and if parliament voted to end same-sex marriages, what then?). Fine, but an even larger question is being begged in this debate. Exactly when would our leaders be prepared to use the override? Is it ever justified? This question has had some considerable urgency and relevance to the field of healthcare since last June 9, when the Supreme Court of Canada decided in Chaoulli v. Quebec that the ban on private health insurance in Quebec was unconsitutional because it violated section 1 of the Quebec Charter. This hypothetical is not so hypothetical anymore: if the Supreme Court reproduces its Chaouilli decision nationally, so as to strike down the ban on private health insurance for medically necessary health services supplied by physicians and hospitals; and that decision threatens to destroy single tier healthcare with respect to those services; is roundly condemned by healthcare experts as being inadequate in its use of social science and compartive policy evidence; and is equally condemned by a vigorous dissenting judgment of three or four judges who (correctly, in my view) see this area as a quintessential public policy question, calling for judicial restraint---well, in those circumstances, would any of the leaders be willing to use the notwithstanding clause? In particular, can we trust Mr. Martin, who has wrapped himself up so tightly in both medicare and the Charter--to make the right decision? And just what might that be, Mr. Dithers?

Second, the Senate. Mr. Harper almost casually mentioned that a Conservative government would finally bring an elected Senate to Canada. Of course, constitutionally speaking, this is an impossibility, as that would require a constitutional amendment, which in turn would invovle haggling over the distribution of seats, electoral formulae and the like. What Mr. Harper no doubt means is that he would continue to appoint Senators, but that provinces would be allowed and encouraged to elect replacements for Senate vacancies and that he would use his appointment power to honour their democratic wishes. Nice move, but again it raises some uncomfortable questions. The Senate constitutionally has all of the same powers that the House of Commons has, except that it cannot initiate money bills and only has a suspensive veto on constitutional amendments. Do we want a Senate blocking government legislation frequently? And, if Senators are democratically elected, why shouldn't they introduce money bills? If Senators are elected as members of Parties, won't they vote along party lines rather more than purely "regional" ones? And is the existing distribution of Senate seats--30 for the 4 atlantic provinces, 24 for the 4 western provinces, 24 each for Ontario and Quebec, and 3 for the three territories--the proper one for democratic accountability in 21st century Canada? It is far from being a Triple-E Senate based on provincial equality, or even regional equality, since B.C. arguably ought to count as a region in its own right. It is heavily weighted toward central and Eastern Canada, just like the House of Commons.

For a political junkie, the Senate provides an endless array of potential possibilities for reform to ponder. Some--like having the P.M. share half of his appointments with the Opposition and the Premiers, and paying Senators on a per diem basis--are constructive, can be done within the present constitutional framework, and have no obvious downside. Others--like Mr. Harper's proposal--are so potentially fraught with unintended consequences that they should be approached with caution. Personally, I am intrigued by the notion that the Senate, as a legislative body that is not the seat of government and is therefore not a House where the government can fall due to a vote of non-confidence, can more easily be based on proportional representation. I also like to imagine an elected Upper House where a more regionally balanced group of legislators can exercise a veto in areas where the Government is spending money in provincial jurisdiction--health, education, daycare , and so on. In areas of pure federal jurisdiction such a newfangled Senate would have only a suspensive veto. But this is not Mr. Harper's Senate.

One of the great things about our present group of unelected rulers in Parliament is that they can be counted upon to do a lot of good committee work and to keep their constitutional powers in reserve. Such admirable restraint will go out the window with the appointment of elected Senators.

The real problem occurs when our unelected rulers lack self-restraint--which is why, for the time being at least, we should be more concerned about that that other "other place"--the Supreme Court of Canada.

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