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.

Brother, can you spare 6-months? Is this what Charter ‘dialogue theory’ has become?

 

Now that the Supreme Court of Canada (SCC) has ruled on the request by the Trudeau government to seek a 6-month extension to comply with Carter v. Canada (Carter II), and the Trudeau government has accepted the court order without reservation, what does the ruling say about the SCC and the Trudeau government, as it relates to the Charter of Rights?

I’ll start by saying that I largely agree with the recent insightful commentary provided by Michael Plaxton in Policy Options. My comments will focus on other issues within the broader context of the judicialization of politics and the Charter of Rights, such as:

  • The justification provided by the SCC for partially granting the request for a 6-month extension;
  • What the ruling says about the state of Charter dialogue theory;
  • Whether Parliament can pass amendments to the Criminal Code within four months to comply with Carter II;
  • Whether the 9 provincial governments excluding Quebec can agree to regulations governing physician-assisted dying by June 6, 2016.

A review of the order is necessary before placing the January 15, 2016 judgement by the SCC in a broader context:

  • The SCC granted the motion in part. The initial one-year suspended declaration of unconstitutionality that was set to expire on February 6, 2016 has been extended for an additional 4 months, instead of the 6 months requested by the Trudeau government;
  • The four-month extension does not apply to those individuals outside of Quebec that wish to exercise the right to physician-assisted dying recognized by the Court in Carter. At paragraph 7, the SCC created an interim process for a ‘competent adult person’ that requires applying to a superior court for relief in accordance with the principles established by the SCC in Carter v. Canada:

“s.241 (b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”(at para. 127)

Elections Matter (when they matter)

There are a number of problematic features with the Court’s reasons to simply grant a 4-month extension to the Carter remedy, and, as a political scientist, the discussions of the 2015 Federal Election and resulting delay that prohibited Parliament from fashioning a legislative response to Carter v. Canada are the most peculiar.

At paragraph 2, the Court notes that the initial remedy of a suspended declaration of unconstitutionality is an ‘extraordinary step’ and to ‘extend such a suspension is even more problematic.’ Further, ‘[t]he burden on the Attorney General who seeks an extension of a suspension of a declaration of unconstitutionality is heavy.’

The Court considered the interruption of the legislative process caused by the 4-month 2015 Federal Election as constituting exceptional circumstances to justify granting an additional exemption.

This leads to an important question – if the Court was willing to factor in the length of a federal election into what is simply an extension for Parliament to draft a legislative response to Carter while simultaneously exempting Quebec’s Act respecting end-of-life-care from this extension and effectively declaring sections 241(b) and 14 of the Criminal Code unconstitutional for ‘competent adult persons’ that are granted relief by a superior court, why not simply grant Parliament’s initial request of 6 months?

The reliance on the period from dissolution of Parliament on August 4, 2015 to its summoning on December 3, 2015 by the Governor General is a particularly puzzling aspect of the Court’s decision in Carter II, and it suggests the SCC misunderstands the legislative process that unfolds between dissolution of one parliament and the summoning of the next parliament by the Governor General.

When an election is called, parliamentary committees are dissolved until Parliament is summoned and the House of Commons reconstitutes them following the election of the Speaker and the Speech from the Throne.

In the case of the Speaker of the House of Commons, the House elected the current incumbent on December 3, 2015. The Governor General read the Speech from the Throne in the Senate on the same day. More importantly, December 3, 2015 is the date the SCC determined that Parliament was able to resume the legislative process, and is the sole justification provided for granting a 4-month extension instead of the 6-months requested by the Trudeau government.

Given that the Trudeau government decided to establish a Special Joint Committee on Physician-Assisted-Dying to receive and review the Report of the Expert Panel on Options for a Legislative Response to Carter v. Canada created by the former Harper government, it is important to ask the following questions:

  • When was the Special Joint Committee on Physician-Assisted-Dying constituted and in a position to begin fashioning a legislative response to Carter v. Canada?
  • When did the Special Joint Committee on Physician-Assisted-Dying receive the Report of the Expert Panel on Options for a Legislative Response to Carter v. Canada? Given that this report is essential to the work of the Special Joint Committee, even if the committee is constituted, it cannot begin its work until the report is received.

When are parliamentary committees ‘re-constituted’ and able to resume work?

The SCC was wrong to assume that the summoning of Parliament by the Governor General on December 3, 2015 allowed Parliament to turn its attention to the legislative remedy in response to Carter v. Canada.

As I previously stated, the summoning of Parliament on December 3, 2015 does not see committee business resume. First, ‘standing’ or permanent parliamentary committees must be reconstituted from a previous session of Parliament, and this occurs after the Speaker has been elected and the Governor General has read the Speech from the Throne.

However, reconstituting a committee has both a formal dimension and a substantive component, which the SCC did not factor into its justification for granting a four-month extension. In the case of the Special Joint Committee on Physician-Assisted-Dying, this committee was not reconstituted, as it did not exist in a previous session of Parliament, but was constituted as an adhoc committee after the Speech from the Throne was dispensed in early December. At this point, the Special Joint Committee was created, but it was not substantively constituted, as it could not meet until several procedural issues were dispensed with.

The first order of business of any parliamentary committee – standing or adhoc – is the election of a chair. In the case of the Special Joint Committee on Physician-Assisted-Dying, it has joint chairs – one from the House of Commons, and one from the Senate. The election of the joint chairs occurred at the first meeting on the Special Joint Committee, and this took place on January 18, 2016.

It was during the afternoon session that the Special Joint Committee first began work on the legislative response to Carter v. Canada, presumably when it received the Report of the Expert Panel on Options for a Legislative Response to Carter v. Canada. While the Minister of Justice received this report on December 15, 2015, the Minister of Justice and Minister of Health did not release the report to the public (and presumably to the Special Joint Committee) until January 18, 2016.

Whether or not the Special Joint Committee received the report before January 18, 2016 is irrelevant, as the legislative response to Carter v. Canada could not begin until the committee was constituted and able to conduct meetings, which occurred with the election of joint chairs on January 18, 2016. Indeed, the afternoon session saw briefings from the Department of Justice, which discussed the complexity of coordinating a provincial regulatory framework governing physician-assisted dying within the 4-month extension.

The delay caused by the 2015 election (4 months) and the period between the summoning of Parliament (December 3, 2015) to the election of Joint Chairs for the Special Joint Committee on Physician-Assisted-Dying (January 18, 2016) results in a further delay of 6 weeks, for a total delay of 5.5 months, and not the 4 months recognized by the SCC. This is only two-weeks shy of the 6-months requested by the Trudeau government.

What does this say about the rationale delivered by the Supreme Court of Canada to grant a 4-month extension instead of the requested 6-month extension? Principally, that it rests on a misunderstanding of Parliament, the legislative process, and the workings of parliamentary committees that puts into question its justification for granting a 4 month extension.

The request by the Trudeau government was reasonable because it – and not the Supreme Court of Canada – understands the subtleties of the legislative process. In such matters, the SCC should defer to the institutional competency of Parliament when the ministry makes an unusual request for an additional extension on a section 24(1) remedy, as in the case of Carter v. Canada. In this respect, the Court was wrong to deny the requested 6-months extension by the Trudeau government. Instead of acting with the Wisdom of Solomon, the Supreme Court of Canada acted as if it had the Wisdom of Solomon, in relation to Parliament and the legislative process.

Get Carter to the Provinces and Territories

Fashioning a legislative response to Carter has two dimensions – one that is directly under federal control (the amendments to the Criminal Code), which is straightforward in the House of Commons but not so in the Senate, and one that is directly under provincial control (responsibility for health care), which is rather complicated. While the federal government surely favours a national approach to physician-assisted-dying, as does the Canadian Medical Association, it requires the provincial governments to agree to this national framework. The provision of this medical service to ‘competent adult persons’ will require provincial acceptance, agreement, and most importantly, implementation.

Passing amendments to the Criminal Code in the House of Commons

Turning to the first part of the legislative response, a four-month time frame is most likely sufficient to draft amendments to the Criminal Code. At a minimum, the House of Commons can simply accept the exemptions outlined by the Court at para. 127 in Carter and recommend these amendments to the Senate.

Such exemptions in the Criminal Code could be fast-tracked at the agreement of the House Leaders of the three parliamentary parties. However, this would require the Trudeau government to invoke party discipline on this issue, which may be problematic, as it is a conscience issue.

Given that Liberal leader Justin Trudeau has required all Liberal MPs to be pro-choice on the issue of abortion, the right-to-die may no longer be considered a conscience issue by the Trudeau government, and a whipped-vote would guarantee its passage in the House of Commons but not the Senate.

Trudeau and the Senate – where bold ‘reform’ meets legislative reality

Here is where the ability of the Trudeau government to pass amendments to the Criminal Code gets complicated, and may prevent meeting the June 6, 2016 deadline. As I argued in an earlier piece – The Senate after the Election: How will the NDP and the Liberals react? – Prime Minister Justin Trudeau leads the first government in Canadian history that lacks a government caucus in the Upper House of Parliament. While in opposition, Liberal leader Justin Trudeau expelled all Senators from the Liberal caucus, and committed his party to a non-partisan approach to the Upper House.

At the present time, it is unclear whether the Liberal party has appointed an individual to serve as Leader of the Government in the Senate – Senator James S. Cowan is designated as ‘Leader of the Senate Liberals’ and it is unclear whether he also serves as Leader of the Government in the Senate.

Why is this relevant? There is no guarantee that the Senate will pass amendments to the Criminal Code in time to meet the June 6, 2016 deadline, as the Trudeau government has absolutely no political leverage with the Senate Liberal Caucus. Even if the Senate Liberal Caucus agrees to support the amendments to the Criminal Code, they are in the minority in the Senate, as the Conservative Party of Canada has a majority of the appointed members. And finally, once the Independent Advisory Board for Senate Appointments fills the 22 current vacancies with non-partisan appointments, the passage of legislation enters a new, unknown phase. Sunny ways can quickly give way to stormy seas, as the Trudeau government may soon learn with an independent, non-partisan Senate.

Coordinating with Provincial and Territorial Ministers of Health

Even if Parliament – the House of Commons and the Senate – passes amendments to the Criminal Code in time, what is less apparent is whether federal-provincial-territorial negotiations with the Canadian Medical Association and other provincial medical associations can produce a regulatory framework to govern physician-assisted dying. Here too, a legislative compromise presents itself in the interim until a permanent regulatory framework can be adopted – the provincial governments, in coordination with the federal government, can simply adopt in the interim Quebec’s Bill 52, Act respecting end-of-life care, and the guidelines created by Quebec’s College of Physicians to regulate physician- assisted dying.

If each province has to pass regulations governing physician-assisted dying by June 6, 2016, even if this is done as orders-in-council instead of legislation, it may prove very difficult to meet the 4-month extension granted by the SCC.

Why Morgentaler is not instructive

In some ways, the issues in Carter and Morgentaler are very similar, as both involved provisions of the Criminal Code that were declared unconstitutional by the SCC as a violation of section 7 of the Charter. In Morgentaler, the SCC declared unconstitutional Criminal Code provisions that regulated abortion, and immediately declared them to be ‘of no force or effect’ under section 52 of the Constitution Act, 1982.

I would suggest this is where the similarity ends, and why Morgentaler is not instructive for the legislative approach to Carter. The impact of the immediate invalidation of Criminal Code provisions in Morgentaler was rather limited – a provincial regulatory framework existed to govern access to abortion as a medical service, and in the case of Dr. Henry Morgentaler and his private abortion centres outside of Quebec, it allowed these centres to operate free from criminal prosecution.

In 1976, the Attorney General of Quebec decided not to enforce provisions of the Criminal Code governing abortion, and this became the approach of all subsequent Quebec government until the Morgentaler decision in 1988. As such, the invalidation of the Criminal Code restrictions on abortion occurred with a regulatory framework in place.

The declaration by the SCC that the Criminal Code provisions prohibiting physician-assisted dying are unconstitutional occurred, with the exception of Quebec, in the absence of a regulatory framework to provide this medical service to ‘competent adult person’ as well as the absence of a policy framework informing physicians how to provide this medical service. While the Canadian Medical Association has created a set of guidelines in regard to physician-assisted dying, they have yet to be adopted by the 9 provinces and 3 territorial governments outside of Quebec.

As I have argued, there are real challenges with introducing legislation at the federal, provincial and territorial levels in response to Carter. The SCC in Carter v. Canada and Carter II viewed the legislative response as rather simple – the need to amend the Criminal Code to comply with paragraph 127 of the initial decision. But this is not as straightforward as it appears, and perhaps unlikely to be achieved even with an additional 6 months, as requested by the Trudeau government.

While the SCC overlooked the federal-provincial-territorial dimension to Carter’s legislative response, I would suggest the Trudeau government minimized the impact of its stance on the Senate when it considered 6 months as a sufficient time frame to pass legislation through both houses of Parliament: one that it controls as a majority government, and one that it has limited or no influence over.

The Day the Dialogue Degenerated

 In his evaluation of Sauvé v. Canada (Sauvé II) whereby the SCC invalidated Parliament’s attempt to amend the Canada Elections Act to comply with the 1993 Sauvé decision (Sauvé I), Christopher P. Manfredi concluded in a Osgoode Hall Law Journal article that the Court’s rejection of the legislative response to Sauvé I represents ‘the day the dialogue died’.

In this conclusion, I will pay tribute to Manfredi’s important analysis of Sauvé II by considering whether Carter II represents the day the dialogue degenerated. In this respect, I do not believe that dialogue is dead, but simply that the SCC and the Trudeau government have engaged in a form of dialogue that does not properly respect the institutional roles and capacities of each that are an integral part of the judicialization of politics under the Charter of Rights.

In one important regard, Carter II is an example of Charter dialogue, as the SCC and the Trudeau government returned to debate the constitutional parameters of physician-assisted dying, but in a narrow capacity, as this dialogue centred on the remedy provided by the Court under section 24(1) of the Charter.

However, Carter II represents a decline in Charter dialogue for a number of reasons. As I argued in Carter v. Canada and why the Constitution – and Parliament – would benefit from the occasional use of section 33, the Charter’s override provision, the Trudeau government should have considered using the notwithstanding clause, as it was simply seeking an extension to comply with the section 7 issues raised by the Court in Carter I. This would facilitate Charter dialogue allocated around institutional capacity, as the Trudeau government – and not the SCC – is best positioned to decide on the length of time needed to fashion a legislative response to an issue as complex and federal as Carter I.

For Charter dialogue theory to properly function, the SCC and the Trudeau government must recognize and respect their individual institutional capacity, which neither actor did in Carter II.

By requesting an extension to the Carter remedy, the Trudeau government adopted an unnecessary posture of deference to the Supreme Court of Canada. By questioning the request for 6 months, and using the period between dissolution of a parliament and the summoning of a new parliament by the Governor General as the basis of its decision, the SCC overestimated its capacity to understand the legislative process. For these reasons, Carter II has further undermined Charter dialogue theory as a framework to understand the judicialization of politics.

 

 

 

 

 

Carter v. Canada and why the Constitution – and Parliament – would benefit from the occasional use of section 33, the Charter’s override provision

In Carter v. Canada, the Supreme Court of Canada (SCC) declared the provisions of the Criminal Code that restricted physician-assisted suicide unconstitutional as a violation of life, liberty and security of the person protected under section 7 of the Charter of Rights. As a remedy for this unconstitutional violation, the SCC suspended the force of its decision for one year, which is set to expire on February 6, 2016.

Since the SCC delivered Carter, a number of important political events have transpired.

  • 2015 witnessed the longest election campaign in Canadian history, which resulted in a much-reduced parliamentary calendar to produce a legislative response to Carter v. Canada and comply with the Court’s remedy under section 24(1). This calendar was further complicated by the delayed introduction of the federal budget.
  • The Harper Conservatives were defeated and replaced by the government of Justin Trudeau. Since the Carter decision – and despite the SCC granting a one-year delay –Parliament has sat for a total of 73 days as of February 6, 2015.

Anticipating that it cannot introduce changes to the Criminal Code before the one-year suspension expires, legal counsel for the Trudeau government appeared before the SCC on January 11, 2016 to request a 6-month extension to the SCC’s suspended declaration of unconstitutionality to draft a response to Carter.

This request by the Trudeau government is wrong for a number of reasons:

  • It creates the impression of extreme deference by the new government to all aspects of judicial politics involving the Charter of Right, from the determination of constitutionality by the SCC, to determining what is a reasonable parliamentary timetable to produce a thoughtful legislative response;
  • It overlooks a mechanism within the Charter of Rights that would allow Parliament, and not the SCC, to decide how much time is needed to draft a legislative response to a constitutional decision of Carter’s complexity, and contested nature – section 33, the notwithstanding clause.

Instead of speaking to the Court about an extension, the Trudeau government should have first raised the possibility of using the notwithstanding clause before Parliament.  This extension is simply to ensure that Parliament has enough time to fashion appropriate amendments to the Criminal Code, and Parliament is best positioned to make this determination. The fact that the Liberal government spoke to the Court first, and has yet to speak to Parliament about using the notwithstanding clause, suggests misunderstandings persist about section 33 and what its use means.

What does it mean to use the Legislative Override?

This is perhaps the most misunderstood provision of the Charter of Rights and Freedoms. As Janet Hiebert argued in Contested Constitutionalism, section 33 is a legitimate provision that allowed a political compromise to emerge during the November 1981 First Ministers Conference. This political compromise was instrumental as it permitteded the Trudeau government to satisfy the SCC’s requirement in the Patriation Reference that ‘substantial provincial consent’ was necessary before the Parliament of Canada could request changes to the British North America Act by the Westminster Parliament.

Since the use of the notwithstanding clause by Quebec in response to the invalidation of the sign-law provisions of Bill 101 in Ford v. Quebec, section 33 has been equated with a denial of rights and freedoms. This has become the dominate narrative of the notwithstanding clause and part of the DNA of the Liberal Party of Canada.

This view of the notwithstanding clause is so ingrained in the Liberal Party, that it appeared in the preamble to Bill C-38 An Act respecting certain aspects of legal capacity for marriage for civil purposes, which allowed for same-sex marriage following Reference re Same-Sex Marriage in 2004. In Bill C-38’s preamble, the government of former Prime Minister Paul Martin reviewed the legal and legislative developments surrounding equality rights and the issue of same-sex marriage and stated the following:

WHEREAS, in light of those considerations, the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes;

Using the notwithstanding clause to override a decision by the SCC can result in the denial of a right, as the preamble to Bill C-38 indicates. But it can also suggest something else, and the Trudeau government should ponder this as it awaits the SCC to decide whether to grant an extension on the remedy outlined in Carter.

Using section 33 can preserve the substance of the Court’s decision involving a right, while at the same time allowing a government to challenge the remedy used by the Court under section 24(1) of the Charter.

In suggesting this, I recognize that section 33 of the Charter is restricted to overriding judicial decisions involving section 2 (fundamental freedoms), sections 7-14 (legal rights) and section 15 (equality rights) for a renewable five-year period. It does not apply to section 24(1) of the Charter, which is the provision that allows a competent court to apply a remedy to a statute found unconstitutional that is ‘appropriate and just in the circumstances.’

However, the use of section 33 provides Parliament with the discretion how to frame the legislative resolution authorizing its use. By appearing before the SCC on January 11, 2016, legal counsel for the Trudeau government sought an extension to allow Parliament to fashion an appropriate legislative response. They did not challenge the substance of the Court’s decision in relation to section 7, nor did legal counsel challenge the finding that sections 14 and 241(b) of the Criminal Code were unconstitutional.

Thus, Parliament has the ability to draft a legislative resolution authorizing the use of section 33.  This resolution can agree with the section 7 argument of the SCC while disagreeing with the remedy issued under section 24(1).  Such an approach would preserve the constitutional position of the SCC as the highest court ruling on rights and freedoms, while preserving the prerogative of Parliament as a law making body to determine how long is necessary to comply with the Court on Carter by drafting a suitable legislative response.  This approach to section 33 would require a 4-part legislative resolution:

  • First, indicate that Parliament supports the Court’s position that the challenged Criminal Code provisions are a violation of section 7 of the Charter and must be remedied to comply with the Court’s decision;
  • Second, justify overriding the Court’s decision involving section 7 because Parliament disagrees with the Court that a thoughtful legislative response to an issue such as physician assisted suicide can be properly legislated within the remedy time frame provided in Carter under section 24(1);
  • Third, establish the time frame for an extension that Parliament believes is needed to amend the Criminal Code to comply with Carter;
  • Fourth, include a sunset provision in this legislative resolution that coincides with the time frame for the extension authorized by Parliament. Although section 33 allows Parliament or a provincial legislature to override a judicial decision for a renewable five-year period, there is nothing preventing Parliament from passing a resolution authorizing the use of section 33 for a much shorter period.

What would this use of section 33 say?

Most importantly, it would challenge the narrative that using the notwithstanding clause is simply a legislative response that denies rights or freedoms. Under the suggested resolution authorizing section 33’s use in response to Carter, Parliament agrees with the Court’s jurisprudence and simply takes issue with the ability to implement legislative changes within a one-year period to an issue of Carter’s complexity.

This use of section 33 coincides with the institutional responsibilities accorded to the SCC and Parliament under the Charter of Rights and Freedoms: it preserves the legitimacy of the Court as the highest adjudicator on constitutional issues and it preserves Parliament’s institutional autonomy and capacity as a law-making body charged with implementing legislative responses to judicial declarations of unconstitutionality.

How should Parliament approach using section 33?

Having indicated why Parliament should use section 33 in the context of the Carter remedy, and suggesting that appearing before the SCC to grant an extension is highly problematic and unnecessary, I will conclude with how Parliament should adopt a legislative resolution in regard to the Carter remedy.

The suggestions for the use of section 33 are drawn from the work of Christopher P. Manfredi and Judicial Power and Charter. Manfredi correctly states that the use of section 33 should be a decision of Parliament, and not simply the party in office, and calls for a supra-majority vote to authorize its use. In Judicial Power and Charter, Manfredi suggests ‘A declaration under this subsection becomes effective upon the agreement of three-fifths of the House of Commons and Senate or three-fifths of the provincial legislature, as the case may be’ (page 193).

I would amend this suggested use of section 33 in the following way – authorize its use by the agreement of three-fifths of the members provided that at least two recognized parliamentary parties in the House of Commons support its use.

This is for the following reason – the use of the notwithstanding clause is a serious matter and it must transcend party-political differences. Although majority governments in Parliament rarely exceed 60% of the seats in the House of Commons –in the last 60 years only Diefenbaker (1958), Chretien (1993) and Mulroney (1984) met this mark – the notwithstanding clause must be passed by more than the party in office, but must demonstrate that the collective will of Parliament authorizes its use.

Conclusion

The Supreme Court of Canada has reserved its decision whether to grant the requested extension in Carter. As I have argued, this request is both unnecessary and misplaced.

If the Court grants the extension, the Liberal Party of Canada is indicating how it will approach its relationship with the Supreme Court of Canada, as it relates to the Charter of Rights – one of extreme deference in all matters related to the judicialization of politics.

However, if the Court refuses to grant the extension, the Trudeau government should consider using the notwithstanding clause. This would not be a denial of section 7 but a disagreement with the Court over which actor – Parliament or the SCC – is best positioned to determine the necessary time frame to draft a legislative response to comply with Carter.