Law Times

www.lawtimesnews.com Law TiMes / March 31, 2008 Page 7 Constitutional conservatives? C onservatives are supposed to be defenders of the status quo and preservers of consti- tutional tradition. But this is Canada, where ideology has tended to play a relatively marginal role in national politics and the liberal-conservative divide has frequently been turned upside down. Jean Chrétien and Paul Martin teamed up to launch a conservative onslaught to get Canada's fiscal house in order that made Mulroney's Conservatives look like tax-and-spend liberals in comparison. The topsy-turvy world of Canadian politics con- tinues these days with Stephen Harper's Conservative govern- ment and its notably "uncon- servative" stance on the Canadian Constitution. The Conservatives approach to the Canadian Constitution is notable both for its attitude as well as the sheer number of issues that it has been willing to take on during two short years of minority rule: constitutional conventions, fixed election dates, Senate reform, the equalization formula, the spend- ing power, House of Commons reapportionment, etc. The Conservative cold shoulder to constitutional tradition began on Day 1 of the Harper govern- ment, with the appointment of the unelected Michael Fortier as minister of Public Works and Government Services. This was hardly the first time that someone without a seat in the House of Commons was appointed to cabinet — Stéphane Dion and Pierre Pettigrew began their federal political careers in this manner. But the constitutional con- vention had been that the min- ister must find a seat at the earli- est opportunity. Stephen Harper's Conservatives thumbed their nose at this convention in two ways. First, they announced that Fortier had no intention of seeking a seat in a byelection but would run in the next general election. To be fair, nobody expected that this minority government would last much beyond 12 to 18 months. Second, Prime Minister Harper appointed Fortier to the Senate, drawing upon existing constitu- tional precedent from various gov- ernments in appointing senators to the Cabinet. However, because of its clash with another Conservative constitutional-reform initiative — Senate reform — the move was not well received by many within the Conservative ranks The Tories introduced two bills on Senate reform in the last par- liamentary session: one to allow Canadians to vote for their prefer- ence for senators (non-binding on the PM) and the other to limit sen- ators' terms to eight years. The sec- ond bill would expressly amend the Constitution Act, 1867, and there is considerable debate as to whether the federal government can uni- laterally amend the Constitution on this issue without provincial support. One of the early bills introduced by Harper's Conservatives was one to establish fixed election dates for Parliament every four years (Bill C-16 introduced May 30, 2006). It passed third reading in the House in November the same year and received royal assent in May 2007, after being passed by the Senate. The act provides, subject to an earlier dissolution of Parliament, a general election must be held on the third Monday in October in the fourth calendar year following polling day for the last general elec- tion. If Parliament is not dissolved earlier, the first general election under this new regime would be held on Oct. 19, 2009. Some would say that this merely codifies existing convention that Parliaments should not last longer than four years. (The last prime minister to challenge this conven- tion was Brian Mulroney who took his government into a fifth year before handing over the reigns to Kim Campbell. That precedent is not one that other leaders would likely want to follow.) In enact- ing fixed election dates, Harper's Conservatives were following the lead of reformist governments in British Columbia (Gordon Campbell's Liberals), Ontario (Dalton McGuinty's Liberals), and Newfoundland and Labrador (Danny Williams' Conservatives). The strongest argument against fixed election dates comes from conservatives who claim that they are inconsistent with parliamentary traditions and interfere with the effective functioning of Parliament. Such assertions were made by members of Ontario's Progressive Conservative party during debates at Queen's Park on the issue. All fixed- election-date legislation attempts to avoid constitutional problems by explicitly preserving the prerogative power of the Governor General or the lieutenant governor to dissolve parliament. In the October 2007 speech from the throne, the Conservatives made a number of constitutional promises. First, they pledged to introduce legislation to place for- mal limits on the use of the federal spending power for new shared-cost programs in areas of exclusive provincial jurisdiction. Such legislation would also allow provinces and territories to opt out with reasonable compensa- tion if they provide comparable programs. Second, they under- took to reintroduce the two pieces of aforementioned Senate-reform legislation, which the Liberals had successfully stalled in the prior par- liamentary session. Finally, in what is sure to stoke the embers of the controversy over veiled Muslim women voters, the Tories promised to enact "measures to confirm the visual identification of voters." A policy, it should be noted, that the other political parties have sup- ported in the past. This could set up a double- barreled Charter challenge, with freedom of religion and the right to vote teaming up against the "visual identification" measures. At best, such efforts are a c olossal waste of time. After all, we allow postal vot- ing federally, with no identification check, when the voter checks off her or his ballot at their home. At worst, they pander to the politics of fear against an unpopular minor- ity group. Our problem in this country, and in this province, is not voter fraud, but rather decreas- ing voter turnout. Political energy should be spent on increasing voter turnout instead of on protecting the integrity of the Canadian elec- toral system against the mythical multiple-voting Muslim woman. The constitutional efforts of the Harper government demonstrate a new trend in Canadian politics that began with the Chrétien Liberals: how to change our Constitution — its rules, its principles, and its conventions — without actually formally amending it. The result of this new trend is likely to be a growing gap between the text of the Constitution and its actual operation. Adam Dodek is a visiting scholar at Osgoode Hall Law School. He can be reached at adodek@sympatico .ca More libel thrill than chill T hings are get- ting out of hand in the Commons. Every week there's a new libel action. Ste- phen Harper's Con- servatives are suing the pants off the Liberals. There have been 11 libel cases in this Parliament — enough to keep libel lawyers in crisp piles of $1,000 bills for years to come. This is the most litigious Parliament in Canadian history. These are the same people who brought you Randy White and his "To heck with the courts." Who would have known? Now that they are in power, they can't seem to get enough of the courts. Harper's "Libel Belt" Conservatives, the courts best friends. They've caught the American disease: "When cornered, stall; if you can't stall, then sue." By the time the case gets to court, the election is long over and everybody's forgotten. But it the meantime the problem is off your back. The Harperites go after the Liberals at every turn. They won't take a nasty remark sitting down. Strangest thing. The Liberals aren't backing down at all, mouthing off at every turn, inside the Commons and out. "So sue me. Sue us all, if you dare." "The PMO was used for lobbying," charge the Liberals. "Sue the guy," shout back Conservative MPs. Call in the lawyers. "Minister meddled in police probe of Ottawa mayor," say the Liberals. "Quick get me a lawyer," the minister cries out. "Justice Minister shut down Mulroney probe," screams a Liberal MP. "Apologize or be sued," shouts back the minister. Call in the lawyers. Dion quotes from a new book. It says that back in 2005 the Conservatives tried to bribe Independent MP Chuck Cad- man, cancer-stricken and on his deathbed, to switch his vote and defeat the Paul Martin government. In return says Dion, Cadman's wife, Dona, would get a $1-million life insurance policy, a gift from the Conservatives. (No medical questions asked, presumably.) Cadman refuses; he dies; his widow gets only the $239,000 she got. She tells the book author, who goes to see Harper and tapes him saying there were financial considerations involved but doesn't admit to any more. Dion says that means Harper knew about the bribe. Harper goes ballistic. Harper shouts that he'll sue Dion and it'll be the biggest, costliest mistake Dion has ever made. (Wasn't that mistake running for Liberal leadership?) But what a great headline: Harper sues Dion! "Sue me all you want," shouts back Dion. The Liberals run it up on their web site: "Harper knew of Conservative bribery" and "Harper must come clean about al- legations of Conservative bribery." Now Harper is really worked up. March 13 he files for libel in Ontario Superior Court — $2.5 million plus legal costs. (If Mulroney can get $2 million from taxpayers, why can't Harper get $2.5 million?) But surprise, surprise! When it gets to court, the names of Dion, Ignatieff, and Goodale do not appear. Harper has backed down. Instead he's suing anonymous Liberal party of- ficials and some fellow who runs the party web site. "Harper sues webmeister!" hardly cuts it. What a come- down from "Harper sues Dion," which would have been the first time in history a sitting prime minister had sued an Op- position leader. But a lowly webmeister? No name — just a job description. Should Harper win, the headline would have to be: Web- meister makes biggest mistake of his life! Maybe lawyer Richard Dearden told his client, Harper: "Stephen, forget Dion. Go after the webmeister. Think web- meister, Stephen." Still Dearden does his best and tells reporters the web site means to say that Harper is "dishonest, unethical, immoral, and lacks integrity." Now who would ever say such a thing about our beloved prime ministerial paragon of virtue? Dearden says the web site headline really means to say that Harper "was an accomplice to that bribe." It'll be up to a judge to decide that, if it ever gets to court. In the meantime, Harper has made his point in the court of public opinion — no bribe, and he didn't know about a bribe if there was a bribe. A fellow can't get any cleaner than that. Richard Cleroux is a freelance reporter and columnist on Parlia- ment Hill. His e-mail address is richardcleroux@rogers.com The Hill By Richard Cleroux COMMENT Second Opinion By Adam Dodek LT LT

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