Sunday, May 22, 2016

"The Party of the Charter" and Parliamentary Democracy

As a former member of the Interior Health Authority’s Clinical Ethics Committee, I can attest  that assisted dying is one  of the mostly deeply controversial and difficult  subjects under the Sun, which makes the way it has been handled all the more deplorable.

The Liberals’ “Motion 6” (now mercifully withdrawn) would have reduced the number of days available to the Opposition to introduce motions, as well as imposing stricter time limits on those motions. Members of cabinet or parliamentary secretaries — all Liberals — would have been granted additional powers to control the business of the House as well.  Under the proposed new rules, we might have seen W.A.C. Bennett-style all-night sittings.

Why this suddenly draconian  posture towards Parliament, which also resulted in the Prime Minister’s angry and impulsive tussle, known as  “elbowgate”?  The Liberals  were deeply annoyed  and embarrassed when , at the beginning of the same  week, a surprise vote by the opposition caused the Liberal government to almost lost a vote on Monday on its own legislation to change Air Canada rules. Furthermore,  the government felt that it had to pass the doctor-assisted  dying legislation, Bill C-14, by the end of the week. (The Court has said that after June 6 the existing law banning physician –assisted  death will be of no further effect, as it had been struck down in the Carter decision back in February 2015.)  Hence Trudeau’s impatience and petulance. 

That much has been said often and elsewhere. But a couple of  additional observations are needed in order to complete the picture.  First, who is to blame for all this confusion and legal uncertainty? Perhaps I am just in a diplomatic mood, but I would apportion the blame just about equally between the Conservatives, the Liberals, and the Supreme Court itself.  The Conservatives, because Stephen Harper’s strict political party rule about avoiding socially conservative causes in this socially liberal country was rigidly adhered to  for electoral purposes—even if it  meant deliberately ignoring the Supreme Court  decision for  a full 8 1/2 months before the October 19, 2015 election.  The Liberals, because even though the Conservatives had ragged the puck for that  long, Grits were well aware of that fact the moment they took office, and therefore should have anticipated the time pressures that would arise.  The Supreme Court, because the Justices should have appreciated that a bill of this nature would require extensive debate as every MP expressed their constituents and their own consciences, canvassed medical opinion, and attracted considerable “sober second thought” from the Senate.  (The Court  had initially suspended its judgment for 12 months in  an election year; then it gave the new Government a paltry 4-month extension of that deadline on top of the Liberals’  already overflowing agenda.)

Second, one must add to this litany of institutional failings the background problem of  Charterphilia, a disease which is rampant throughout English Canada.  Its symptoms  are  most acute in the Liberal Party  (“the Party of the Charter”) and in the heart and mind of its young leader:   a pulse-quickening reverence for Charter rights and a belief in the near-papal infallibility of the Supreme Court's edicts about that Holy Writ.  That it was a Charter Right that was at issue , and that the Supreme Court had Spoken on its meaning, no doubt fuelled the prime minister’s  outrage at the continued stalling tactics of the Opposition and contributed to his remarkable lack of respect for Parliament.  (Remember Prince Hamlet, who was also egged on by his father's ghost to occasional impetuosity.)

The truth, however, is that Opposition Parliamentarians were dealing appropriately  with a profoundly political issue, a fact to which this Government in particular had become especially and determinedly blind.


The Mound of Sound said...

It's called "constitutional democracy" Mark and the Charter is the cornerstone of liberal democracy. You would be well served to expand your grasp of both our constitutional apparatus and our judicial system. Perhaps you should begin with "the rule of law."

Mark Crawford said...

Mound: Thank you for your comment. You talk as if there were no constitutional democracy before 1982! I was exploring the reasons why a Constitutional Democrat like the son of Pierre Trudeau would be driven to behave in such an unparliamentary fashion. I was also doing so as someone who has studied and even participated in , the rich literature critiquing the Charter--starting with Andrew Petter and Allan Hutchinson, Michael Mandel , followed by Joel Bakan and (from a more conservative angle, MOrton & Knopff). But if you are "right" and the Charter truly is the cornerstone of democracy, that would certainly explain the prime minister's anger and fury at the continued delays of Opposition MPs in following orders from the Supreme COurt , wouldn't it?