Crack that whip – why Real Change is just more of the same for the Liberal caucus

The Liberal Party of Canada’s 2015 election platform, Real Change – A New Plan for a Strong Middle Class, is an extensive document. In one particular section, Giving Canadians a Voice in Ottawa (pages 29-31), the Liberal Party of Canada makes 10 commitments to strengthening the voice of Canadians in our political institutions.

These recommendation range from the Senate, to a more transparent appointment process for Supreme Court of Canada nominees, to placing limitations on the use of prorogation and omnibus legislation.

There is one aspect that has not received much attention, largely because the current Parliament has not held many votes on the government’s legislative agenda – the commitment by the Liberal Party of Canada, and now the Trudeau government, to ‘make free votes in the House of Commons standard practice’ (page 30).

However, Real Change recognizes that there must be restrictions on free votes, and establishes the following guidelines:

For members of the Liberal Caucus, all votes will be free votes with the exception of:

those that implement the Liberal electoral platform;

traditional confidence matters, like the budget; and

those that address our shared values and the protections guaranteed by the Charter of Rights and Freedoms.

What this really means, when you think about the third exception is the following – there will be no free votes for members of the Liberal caucus. Every issue considered by Parliament is a Charter issue, and the exceptions to the rule stated in Real Change are, in fact, not exceptions but the new rules of party discipline under the Trudeau Liberals.

The election commitment to Giving Canadians a Voice in Ottawa has been acted upon, and the mandate letter issued to the Leader of the Government in the House of Commons commits the Trudeau government to provide “Canadians a stronger voice in the House of Commons by promoting free votes and limiting the circumstances in which Liberal Members of Parliament will be required to vote with the government.”

This past weekend, the Trudeau government outlined its approach to free votes and conscience issues, and clarified when a Liberal MP must adhere to the party line.

The response by the Leader of the Government in the House of Commons, Dominic LeBlanc, as to whether the issue of physician-assisted death will be a free vote, represents real change. But it is not the real change that Real Change promises.

LeBlanc’s Law of Confidence on Matters of Conscience

As reported in the Globe and Mail, the House Leader has developed a litmus test for determining when a conscience issue is actually a matter of confidence that requires a three-line whipped vote to be imposed on the Liberal caucus.

According to the House Leader, the issue of physician-assisted death ceased to be a morally contentious matter, as well as a conscience issue, the moment the Supreme Court of Canada (SCC) recognized the right to physician-assisted death under section 7 of the Charter of Rights.

For the Liberal House Leader, “At the end of the day, the Supreme Court has defined a right around the issue of assisted dying, and we will be always voting to uphold Charter rights.”

Clearly, this approach is consistent with Real Change, but it does question the Trudeau government’s commitment to actually address the intensity of party discipline that exists in the House of Commons.

Using the Charter of Rights as a pretext for rigid party discipline by the Trudeau government is no different than the use of ‘law and order’ or ‘national security’ by the former government of Stephen Harper to stifle parliamentary debate.

Whether the anticipated law on physician-assisted death is well drafted or poorly constructed, or the fact that Liberal MPs have not yet seen the law, doesn’t matter. All that matters when you pursue Real Change is that it involves the Charter of Rights, the SCC has ruled on this matter, and Liberals, according to Mr. LeBlanc, will always vote to uphold the SCC’s interpretation of the Charter of Rights.

This has caused concern for some Liberal MP’s, particularly John McKay, who is the Parliamentary Secretary to the Minister of National Defence. Invoking the traditional approach to whipped votes as matters of confidence because of their centrality to a government’s legislative agenda, John McKay has noted the following about physician-assisted death: “It’s not core to the government’s mandate; it’s a response to the Supreme Court…I don’t see this as a Charter issue.”

True, but not true when you are pursuing Real Change.

In recent days, Althia Raj of the Huffington Post has reported further concerns being raised by Liberal MPs on a whipped vote before they have seen the draft bill (see All Liberals Must Support Doctor Assisted Dying Law, Government Deems it Charter Issue).

The ability of the Charter of Rights to transform conscience issues into matters of confidence is rather remarkable, and raises several questions:

  • Given that Carter v. Canada is a unanimous decision, does a conscience issue become a matter of confidence only when the when the SCC speaks with one voice?
  • If this is the approach adopted by the House Leader, are Liberal MPs free to vote their conscience when the SCC delivers a majority decision, as it did in Morgentaler, when a provision of the Criminal Code that prohibited the provision of private abortion services was declared unconstitutional?

Does it matter whether the SCC protects the rights of the accused or that of the victim in its Charter rulings? In previous decisions involving the Charter of Rights the Supreme Court of Canada has;

  • Recognized the defence of extreme intoxication in sexual assault cases and invalidated a common law rule that prevented the accused from raising such a defence (Daviault);
  • Invalidated a section of the ‘rape shield’ provision in the Criminal Code as unduly limiting the section 7 rights of the accused to full answer and defence (Seaboyer);
  • Ruled that the ‘possession of child pornography is a form of expression protected by s.2b of the Charter’ (Sharpe);
  • In 2002, declared an amendment to the Canada Elections Act that disenfranchised violent prisoners serving sentences of 2 years or more in a federal institution unconstitutional as a violation of the right to vote for those incarcerated (Sauvé v. Canada);

I wonder whether the Trudeau government intends to uphold such interpretations of the Charter of Rights simply because the SCC has rendered these decisions.

This is particularly relevant and would represent real change, as previous Liberal governments have actually disagreed with the SCC on occasion, and reversed Charter decisions through statutory amendment (see James B. Kelly and Matthew A. Hennigar, ‘The Canadian Charter of Rights and the minister of justice: Weak-form review within a constitutional Charter of Rights,’ International Journal of Constitutional Law 10:1 (2010), 35-68).

From Parlement to Parliament to vous ne devez pas parler (when the Supreme Court of Canada has spoken)

There are a number of problems with the approach to free votes in Real Change and the Government House Leader’s view that parliamentary debate and disagreement amongst Liberal MPs is unnecessary once the Supreme Court of Canada recognizes a right or freedom:

  • This approach is a clear rejection of past parliamentary practices that involve matters of conscience, such as the death penalty;
  • This approach departs markedly from past parliamentary practices that allowed free or partially free votes for members outside of the ministry in regard to the Charter of Rights. This occurred in response to decisions by the Supreme Court of Canada involving abortion ( v. Morgentaler), and same-sex marriage (Reference re Same Sex Marriage);
  • This approach is a clear repudiation of M-550 introduced by Ed Komarnicki (Souris-Moose Mountain) and passed by Parliament on June 17, 2015 by a vote of 273-1. The wording of Private Members’ Business M-550 is the following (pages 2801-2802);

That, in the opinion of the House, all Members of Parliament should be allowed to vote freely on all matters of conscience.

Incidentally, Justin Trudeau and Dominic LeBlanc supported M-550 as members of the third largest party in Parliament a mere 8 months ago while in opposition;

  • This approach may signal the death of Charter dialogue as it fails to understand that every issue considered by the Parliament of Canada is actually a Charter issue because of section 52 of the Constitution Act, 1982 (The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect), as well as the Minister of Justice’s duty to report any Charter inconsistencies to the House of Commons under section 4.1.1 of the Department of Justice Act;
  • This approach fails to consider that the Charter of Rights involves morally contentious issues where reasonable people disagree over the scope of rights and freedoms. It also ignores that disagreements will exist over the reasonable limits clause because of its subjective nature, and the unstated values of a free and democratic society that must be discovered by the SCC;
  • This approach is premised on there being a correct interpretation of the Charter of Rights, and assumes that the Supreme Court of Canada is infallible when it renders a Charter ruling;
  • This is simply ill conceived and perhaps an early indication that the ‘natural governing party’ has slipped back into the hubris of arrogance of past Liberal governments. No political party or institution monopolizes what constitutes Canadian values, or what the Charter of Rights and Freedoms entails (see Léonid Sirota, The Charter is of no party).

Give the past a slip

Historically, free votes have been a rarity in the Parliament of Canada. Only 8 matters considered by Parliament have been completely or partially free votes since the 1960s. As several involved government bills, the ministry voted in favour because of the principle of collective cabinet responsibility, but members of the governing party on the backbenches were free to vote their conscience.

According to the Library of Parliament:

True free votes occasionally take place in the House of Commons, usually on questions of morality and conscience, where divisions tend to cross party lines. To date, there have been few such votes: the flag debate of the 1960s; five votes on capital punishment in the 1960s, 1970s and 1980s; votes on the abortion issue; and the vote on same-sex marriage in June 2005 (Bill C-38 – it is to be noted that the New Democratic Party did not allow a free vote for its members on that issue). In several of these, Cabinet ministers were expected to support the measure as it had been introduced by the government, but other Members on the government side were free to vote as they wished. This was the case with the vote on same-sex marriage: Liberal ministers were required to vote in support, but other Liberal MPs were allowed to vote in accordance with their own beliefs.

Given that past Liberal and Progressive Conservative governments have respected the parliamentary practice that moral and conscience issues are free votes, and several occurred with the Charter of Rights as the backdrop, why has the Trudeau government decided to abandon this practice in regard to physician-assisted death?

Sunny ways are giving way to darkening skies

Several possibilities exist to explain the use of rigid party discipline on a conscience issue such as physician-assisted death. The first it not particularly convincing, and the second may explain the conversion of conscience issues into confidence matters by the Trudeau Liberals.

  1. A whipped vote is necessary to ensure the passage of the response to Carter v. Canada by the House of Commons

Generally speaking, a government imposes a three-line whip when it considers an issue either as a matter of confidence because it is a core election commitment and key to the survival of the government, or when it is concerned that it cannot rely on the support of its backbenchers to pass a key government initiative.

How useful is this explanation to understand the approach of a government that met for the first time on December 3, 2015 when the Governor General summoned Parliament into session?

Not very useful, for a number of reasons:

  • Second, given that 136 of the 184 MPs in the Liberal caucus were elected for the first time in 2015, it is unlikely that a government caucus with such a large number of rookie MPs should be concerned about their backbench not supporting the government’s legislative agenda.

Independent behaviour by Members of Parliament develops over time and is generally the result of two factors – longevity as an MP and lack of career advancement to the ministry – and neither characterizes the vast majority of Liberal MPs elected in 2015.

A three-line whipped vote, at this stage in the current parliament, seems rather unnecessary to guarantee passage of any bill proposed by the majority Liberal government – the current Parliament has passed only one act, Bill C-3 (Appropriation Act No. 4, 2015-16), and the Liberal caucus unanimously supported, as it is a money bill, and is a matter of confidence.

At this point, it is probably safe to conclude that there is no evidence of dissent on the Liberal backbenches that needs to be addressed through a whipped vote by the House Leader to save the government on an issue – physician-assisted death – that is not a matter of confidence for the Trudeau government.

  1. A whipped vote is necessary because Justin Trudeau expelled all the Liberal Senators

On February 15, 2016, it was reported in The Hill Times that Liberal Senators expelled by Justin Trudeau believe that the Trudeau government will have a difficult time passing its legislative agenda in the Upper House (see Tough times ahead for Trudeau Libs in Senate, say Liberal Senators).

Justin Trudeau wanted to ensure an independent, non-partisan chamber by expelling all Senators from the Liberal caucus. It appears that these former Liberal Senator intend to advance his desire for the Senate to be an independent scrutiny chamber. This may be a case of ‘be careful what you whish for’ on the part of the Trudeau Liberals.

The uncertainty of the government’s legislative agenda in the Senate may be the real reason why a whipped vote on a conscience issue has been imposed by the Leader of the Government in the House of Commons – a realization that it takes two to tango in a bicameral parliament, and the Liberal Party of Canada’s dance card is empty in the upper house and likely to remain so.

In a previous entry, I indicated that this decision, while in opposition, might be the most serious and consequential for the Liberal party while in government (The Senate after the Election: How will the NDP and the Liberals react?). As well, this poses a particular difficulty for the legislative response to Carter v. Canada as I argued in Brother, can you spare 6-months? Is this what Charter ‘dialogue theory’ has become?

The situation facing the Trudeau Liberals in the Senate, while unique, is not without comparison, as majority governments in other Westminster systems rarely control both houses of parliament:

  • In Australia, a majority government constituted in the Lower Houser of Parliament rarely controls a majority of the seats in the Senate because of the single-transferrable voting system based on proportional representation used in the Upper House. In the current Australian Senate, the Coalition composed of the Liberal Party and the National Party is the largest caucus, but a minority with 33 out of 76 seat, or 43.4% of the voting members in the Senate;
  • In the United Kingdom, a majority government that resides in the House of Commons will not, because of the changes affecting the composition of the House of Lords introduced by the Labour government of Tony Blair, control a majority of the members of the House of Lords. While the Conservative party of David Cameron heads a majority government in the Commons, Conservative Peers in the House of Lords number 250 out of 816, or 30.6% of the peers.

This is where the comparisons end, unfortunately. This leads me to conclude that a whipped vote is more about how the Trudeau approach to the Senate has backfired more than it is about fidelity to the Charter of Rights, as I will explain below.

Senate reform without a game plan beyond expulsion

In all three Westminster parliamentary democracies considered – Canada, Australia, and the United Kingdom – there is a real possibility that the government’s legislative agenda proposed in the lower house of parliament may be denied by the upper house.

Unlike Canada, these remaining parliamentary democracies have constitutional principles to break deadlock between the houses of parliament (Australia) or have developed constitutional doctrines which allow the government that resides in the lower house to have its legislative agenda agreed to by the upper house (the United Kingdom).

While the Constitution Act, 1867 and 1982 provides two mechanisms to resolve deadlock between the two houses of parliament, they are not practical and would not provide any resolution to potential Senate refusal to expedite the required legislative response to Carter v. Canada:

  • First, in regard to constitutional amendments, section 47(1) limits the Senate’s blocking power to simply a 180 day delay:

Amendments without Senate resolution

47(1) An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42 or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.

  • Second, section 26 allows the Queen, on the recommendation of the Governor General (who simply acts on the recommendation of the Prime Minister), to increase the size of the Senate by four or eights members:

Addition of Senators in certain cases

26. If at any Time on the Recommendation of the Governor General the Queen thinks fit to direct that Four or Eight Members be added to the Senate, the Governor General may by Summons to Four or Eight qualified Persons (as the Case may be), representing equally the Four Divisions of Canada, add to the Senate accordingly.

As the legislative response to Carter v. Canada does not require a constitutional amendment, section 47(1) does not have any relevancy for the Carter extension that expires on June 6, 2016.

Neither is section 26 particularly helpful, as the Trudeau Liberals do not permit Senators in the Liberal caucus. Even if the new advisory process for the appointment of Senators recommended four or eight additional Senators, there is no guarantee that non-partisan Senators appointed under section 26 would make much difference.

Australia and double-dissolution elections

The Constitution of the Commonwealth of Australia enacted in 1900 anticipated deadlock between the two houses of parliament, perhaps because each chamber has always been elected and can argue that it possesses a democratic mandate to justify its actions.

Under section 57 of the Constitution of the Commonwealth of Australia, the Governor General, at the request of the Prime Minister, and providing that a ‘trigger event’ exists, can call a double-dissolution election for both houses of parliament:

57. If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.

Section 57 also provides for a way to resolve a conflict between the two houses of parliament that may not be resolved by a double dissolution election – the ability of the Governor General to call a joint sitting of the House of Representatives and the Senate to pass the measure in question by a simple absolute majority:

If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.

The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by Houses of the Parliament, and shall be presented to the Governor-General for the Queen’s assent.

The United Kingdom and the Salisbury Doctrine

The unwritten nature of the constitution of the United Kingdom has resulted in constitutional change through parliamentary conventions or doctrines agreed to by the two houses of parliament. For the present discussion, the Salisbury Doctrine is important, as it suggests a possible solution to the Senate conundrum that has been authored the Trudeau Liberals.

The discussion of the Salisbury Doctrine provided on the Westminster parliamentary website is the following:

The Salisbury Doctrine, or “Convention” as it is sometimes called, emerged from the working arrangements reached during the Labour Government of 1945-51, when the fifth Marquess of Salisbury was the Leader of the Conservative Opposition in the Lords. The Convention ensures that major Government Bills can get through the Lords when the Government of the day has no majority in the Lords. In practice, it means that the Lords does not try to vote down at second or third reading, a Government Bill mentioned in an election manifesto.

While this is a potential solution to problem faced by the Trudeau Liberals in the Senate, there is a hitch – physician-assisted death was not mentioned in Real Change – A New Plan for a Strong Middle Class, the 2015 election manifesto of the Liberal Party of Canada.

A Canadian equivalent to the Salisbury Doctrine is necessary, given that the Trudeau government does not have a Senate caucus. However, even if it did exist in Canada, it would not apply to physician-assisted death.

This issue was not part of the Speech from the Throne, Making Real Change Happen, read by the Governor General on behalf of the Trudeau government, and would not meet the threshold of the upper house passing a government bill included as part of an election manifesto.

Charter platitudes are not helpful

One counter to my argument would be the following – the Senate of Canada has rarely defeated a bill proposed by the House of Commons.

True. But that was then and this is now.

Part of the reason for the lack of Senate opposition in the past is the following – the governing party in the House of Commons, for the most part, also commanded a majority in the Senate of Canada, and these Senators were always part of the governing caucus. The only party caucus in the Senate is that of the Conservative Party of Canada, and it constitutes a majority of the occupied seats in the upper house.

Returning to the application of a three-line whip to physician-assisted death, the Trudeau government may be banking on a strong vote in the House of Commons to pressure the unelected Senate to quickly review and pass the amendments to the Criminal Code required by the Supreme Court of Canada by June 6, 2016.

This may be the only card the Trudeau government holds – the hope that an unelected Senate will not deny the will of the House of Commons and the attempt to comply with the Supreme Court of Canada in Carter v. Canada.

And this may explain the use of Charter platitudes to justify whipping a conscience vote.

This strategy, to be successful, would also require the support of the remaining parties in the lower house to truly represent the will of the house. But in return, the Conservatives and the NDP may demand a proper parliamentary debate on the Liberal’s approach to addressing physician-assisted death.

It appears that this strategy may be unravelling for the Trudeau Liberals, as NDP Leader Thomas Mulcair has indicated that his caucus will be permitted a free vote as “I have the intention of allowing our caucus to vote their conscience on this file.” In the end, the will of the house may not be homogenous, but more a reflection of the views of Canadians on this issue.

Parliamentary debate must be encouraged, not denied

This returns the discussion to an essential point – the Charter of Rights should be the basis of debate within the House of Commons, and should never be used as a parliamentary tactic to scuttle it.

The Liberal party’s commitment to the Charter of Rights as a pretext for the use of three-line whips may prove to be the tragedy of the commons under Justin Trudeau.

It doesn’t need to be this way. But that would require Real Change.

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