“Canadians should understand that at stake here is not just a technical point of law, but the integrity of parliamentary government. In placing Section 47 in the Wheat Board Act, Canada’s 36th Parliament made a commitment to grain growers that it would not consider changing the rules for marketing their crops without their consent. To hold that such a promise means nothing once another party has a majority in the House of Commons is to deny Parliament the capacity to make such commitments to citizens whose interests are so directly affected by legislation.”
- Does it matter if our laws are passed illegally? By Peter H. Russell; Published Friday, Dec. 30, 2011 2:00AM EST
“Whereas the introduction of a pro forma bill in the House of Commons before the consideration of the Speech from the Throne demonstrates the right of the elected representatives of the people to act without the leave of the Crown;
Whereas that custom, which can be traced to 1558 in the Parliament at Westminster, is practised in a number of jurisdictions having a parliamentary form of government;
And whereas it is desirable to explain and record the constitutional relationship represented by that custom;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
- 1. This bill asserts the right of the House of Commons to give precedence to matters not addressed in the Speech from the Throne”
- Bill C1, 1st Session, 41st Parliament, 60 Elizabeth II, 2011
I do agree with Mr. Peter Russell that the amendments to the Wheat Board Act were put forth to Parliament illegally. I do agree that Parliament risks becoming a rubber stamp that can deny “the capacity to make such commitments to citizens whose interests are so directly affected by legislation”. However, I do have to disagree with his argument. Or put differently, while I do not disagree with Professor Russell’s destination; my issue is with the route that he took.
For, Parliamentary Supremacy is clear. Section 18 of the Constitution Act (1867) says that “the privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.”
One of the first and simplest powers of Parliament has been to meet to discuss any issue at hand. Simply look at Bill C1. It has been introduced at the beginning of each Parliament since 1867. The bill notes that the House of Commons has the right to “give precedence to matters not addressed in the Speech from the Throne”. A similar bill is introduced in the Senate. Or put differently, any Member of Parliament had the right to amend the Canadian Wheat Board.
Just as backbencher, Tory MP Candice Hoeppner, in May 15, 2009, brought forth a private member’s bill to eliminate the registry. While, I may disagree with the bill, it was introduced. The bill was reviewed by the standing Committee of Public Safety and National Security. Many groups spoke against Bill C-391. This included the Canadian Association of Chiefs of Police, the Canadian Police Association, the Canadian Association of Police Boards, the mayor of Toronto, and the Canadian Association of Emergency Physicians. But the House of Commons and the Senate discussed this piece of legislation because they have every right to discuss this. They have every right to discuss almost everything. That is unless the Speaker declares it “un-parliamentary” in nature.
In the Toronto Star article in March 2011, NHL could lose Air Canada sponsorship over headshots, Minister of State for Sport Gary Lunn called a hockey hit “unacceptable”. In 1991, the Senate of Canada defeated Bill C-43. It was a bill that would have allowed abortion to be added to the Criminal Code of Canada.
Even Section 44 of Constitution Act (1982) says that “Parliament may exclusively make laws amending the Constitution of Canada in relation to executive government of Canada or the Senate and House of Commons.” Parliamentarians need to have the freedom to discuss everything including the very nature of the country. While, I disagree with sovereigntists, the ability for them to discuss their issues in legislatures across the country means that we have not had to have a violent conversation about the future of the country. Discussion has allowed us to become a great country. This is the basis for Parliamentary Supremacy.
However, such a system possesses an obvious problem: if Parliament’s acts are neutral, how does one ensure that one Parliament can bind another? By making any important rule a ‘law of the land’. The Great Leap of that the English Constitution made was that simple fact. Even, the Sovereign (King or Queen) had to obey the Law. The Head of State and eventually, the Head of Government, were bound by the Magna Carta and other great bills of the English Constitution. This was done by making every person responsible for their actions.
So while a Member of Parliament, Member of the Cabinet/Executive Council or Crown, may have the right to say anything in Parliament, he or she does not have the right to do anything. This concept is one of the privileges of being a Member of Parliament. This is why Stephen Harper apologized to a number of cultural groups including Aboriginal Canadians on the floor of the House of Commons. For, Members of Parliament are excluded from liable in civil court. Yet, Parliamentarians can be charged for criminal act such as bribery.
Consequently, there are limits to Parliamentary or Executive Privileges. Ministers, even if they are MPs, have to follow the law. For, neither privilege protects them from Criminal Charges. Doing something against an act of Parliament would be a subversion of Parliament. That is why I disagree with Peter Russell: Parliament did its job, a Minister failed to do his.
Within our system, a Minister – who is an MP – has multiple responsibilities. They have a responsibility to the Crown. They have another to the legislature. As an MP, they have a responsibility to their constituents. However, most importantly, they have a personal responsibility to implement and follow the law.
Just as the Crown is required to follow acts in which they are mentioned, so is a Minister. In this particular case, Canada’s 36th Parliament made a commitment to grain growers. That Parliament said that “it would not consider changing the rules for marketing their crops without their consent” and Parliament made the Minister responsible to uphold the law. This is why Judge Campbell stated very clearly that one of the reasons for his decision was to hold the Minister “accountable for his disregard for the rule of law”. The minister failed to get that consent. Consent that he choose not to seek.
Ministers have a variety of tools to ensure that their jobs can be fulfilled. Firstly, if a Bill passes both the House of Commons and the Senate, it still requires Royal Assent to become law. A Postmedia article, entitled “Liberals ask Gov. Gen. to withhold royal assent on wheat board bill”, quoted two constitutional experts – U of T’s Peter Russell and Queen’s University constitutional law expert Ned Franks – as saying that it was nearly impossible for the Governor General to interfere. For since the King-Bing Affair in the 1920’s, Canadian Governor-Generals have been on a tight leash. The Crown, in Canada, almost always takes the government advice. Or put differently, the Government could have withheld Royal Assent. But the Minister and the Harper Government most likely gave that Governor-General the go ahead to sign the legislation.
The Minister could have withdrawn the legislation, but he did not. Gerry Ritz, The Minister in question, could have advised the Senate to slow down. But he didn’t. Just look at his words after a press conference. On December 7th, in an article entitled “Tories to reform wheat board despite court ruling”, CBC quoted his as saying: “”Let me be clear, we will never reconsider western wheat and barley farmers’ fundamental rights to market their own wheat and barley.” Or one can look at a piece written for the Winnipeg Free Press, republished by Canada.com, called “Federal Court ruling on wheat board bill won’t alter decision: Ritz” (December 7, 2011).
Ritz said the federal government is “disappointed with the decision” and the government plans to appeal. But the minister dismissed the significance of the judge’s ruling, saying “this declaration will have no effect on continuing to move forward for freedom for western Canadian farmers.”
These are actions which are more than just illegal. These actions bring the Crown and “the administration of justice into disrepute” because they do not reflect a government that is interested in providing peace, order and good government; as prescribed by Canadian law, as would be expected or demonstrably justified in a free and democratic society.
The issue in many ways is not the role of Parliament but the role of Minister. This is why Professor Russell is wrong. The Minister or Ministers involved in this decision should be held accountable for their breaking of Canadian democratic and constitutional norms. As I have said in the past, this breach is likely criminal in nature. The only question is will the Liberal Party of Canada stand up for the Constitution and Parliament or will it be left to citizens to do that job?